RENDERED: DECEMBER 17, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2018-SC-0241-MR

RONALD EXANTUS APPELLANT

ON APPEAL FROM WOODFORD CIRCUIT COURT

V. HON. PHILLIP R. PATTON, SPECIAL JUDGE 

NO. 15-CR-00090

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING

Ronald Exantus was found not guilty by reason of insanity of one count 

of murder, not guilty by reason of insanity of one count of first-degree burglary, 

guilty but mentally ill of two counts of second-degree assault, and guilty but 

mentally ill of one count of fourth-degree assault. He now appeals his resulting 

twenty-year sentence to this Court as a matter of right.

1 After review, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Exantus was a thirty-two-year-old dialysis nurse from Indianapolis, 

Indiana. He worked with dialysis patients for ten years with the same 

 

1 Ky. Const. § 110(2)(b). 
2

company, first as a technician and later as a registered nurse. His coworkers 

and supervisors described him without exception as an exemplary, dependable, 

and trustworthy employee. He had no previous criminal convictions, though it 

was undisputed that he smoked marijuana regularly. He had no documented 

history of mental illness. 

The series of events that led to the tragic outcome of this case began to 

unfold in the first week of December 2015. During that week Exantus’ 

girlfriend of three years, Lauren, began noticing that he was exhibiting odd 

behavior. She testified that she first noticed on Monday or Tuesday of that 

week that he was not sleeping as much as he normally did. Lauren, as well as 

her parents Will and Lisa, noticed that Exantus also was not eating much.

This was highly unusual as Exantus, a former semiprofessional linebacker, is a 

man of large stature and was known to eat a lot. He also began having crying 

spells. Both Lauren and Lisa testified that these crying spells were the first 

time either of them saw him cry. His coworkers also noted unusual behavior

that week. He was very “giddy and bubbly” at work, when ordinarily he was 

very serious and grounded. He was also speaking at a much louder volume 

than normal. One coworker stated he discussed his personal life with her, 

which he had not done in the ten years she worked with him. Another said he 

put his arm around her during a conversation. This was notable to her as he, 

historically, was not someone who showed affection to others in that way. 

All of this uncharacteristic behavior came to a head on Sunday, 

December 6th. Exantus cried the whole time he and Lauren were getting 
3

dressed for church that morning, but he could not articulate what was wrong. 

Towards the end of the church service, he began crying again and asked to 

speak to Lauren’s mother. Lisa testified she and Exantus went outside to the 

church parking lot. She tried to talk to him, but he was rambling and saying 

things that did not make sense to her. At one point he dropped to the ground 

and started crying again. Eventually she was able to calm him down and they 

went back inside the church.

Not long after Exantus was back inside he started causing a commotion 

in the back of the sanctuary, so Will and a pastor took Exantus back outside to 

the parking lot. Will testified Exantus was babbling and saying things that did 

not make sense. The pastor, who met Exantus for the first time that day, 

testified that Exantus was very animated while he was talking. He further 

attested that he gathered that Exantus was asking him spiritual questions, but 

his words were out of order. Exantus did not seem to realize that his words 

were not coherent. The pastor also stated Exantus’ emotions went from joy, to 

sorrow, and back to joy within a five to eight-minute period. He fell to the 

ground and cried in front of them as well. 

Ultimately, they went back into the church and sat with the rest of 

Lauren’s family. Exantus then began pointing at people and saying they were 

police officers and investigators. Soon after that, he got on one knee and 

proposed to Lauren while sobbing hysterically. Lauren stated this was 

completely unexpected, and she rushed him to get off the floor because it

embarrassed her. 
4

Later that afternoon Lauren and Exantus went shopping for an 

engagement ring, as he did not have one when he proposed. The woman 

working at the jewelry store testified they were in the store for about an hour. 

She said they were both very happy and she did not notice anything unusual 

about Exantus’ behavior, though she had never met him before. 

That evening they went to dinner with Lauren’s family. Exantus started

crying again during dinner and asked Will to go outside with him two different 

times. Will said when he was outside with him, Exantus was crying and 

started saying things about his patients and that he was sorry for something 

that happened at work. Will asked him what happened but Exantus would not 

tell him. Will was able to get him to calm down and go back inside the 

restaurant, but Exantus did not eat the food he ordered. 

When Lauren and Exantus got home from dinner they began looking at 

items for their wedding. Lauren had him take NyQuil because she thought his 

behavior would return to normal if he got some sleep. Instead of going to sleep 

he suddenly got out of bed and told her he did not want to marry her or be with 

her. He also said that he was not going to hurt her, but he had to go. Lauren 

testified that he said all of this with a calm, flat affect and, though his words 

were directed at her, he was not looking at her when he said them. According 

to Lauren, he left their home between 8:30 and 9:00 p.m. He took his personal 

cell phone, but not his work cellphone despite the fact that he was on call. 

Lauren said she tried calling and texting him several times after he left, but he 

never answered or responded. 
5

The evidence presented at trial suggested Exantus was planning to drive 

from Indiana to Florida where his family lived. Instead, he ended up in a

neighborhood in Versailles, Kentucky, a place he had never been before. 

Exantus would later tell investigators that he saw a street sign that said either 

“Grey’s Street” or “Grey’s Road.”2 He said the sign made him think of the 

television show “Grey’s Anatomy,” which in turn made him believe he needed to 

perform surgery. The house he chose to enter was the home of the Tipton

family. He said he selected the home because of the Christmas lights on the 

outside. 

The members of the Tipton family living in the home at that time were a 

married couple, Dean and Heather, and their five children: K.T.3 (11 years old), 

L.T. (9 years old), D.T. (7 years old), Logan (6 years old), and A.T.

4 The home 

had two stories: Dean and Heather’s bedroom was downstairs, and all of the 

children slept in a bedroom on the second floor. Heather was working a night 

shift when the following events took place, but Dean and all five children were 

home. 

Shortly before 4 a.m. on December 7th, Exantus entered the home 

through the unlocked front door.5 He went into the kitchen on the first floor of 

 

2 The evidence was conflicting on the actual name of the street. 

3 The surviving children in this case are referred to by their initials to protect 

their privacy.

4 A.T. is the youngest, however his or her exact age was not provided. 

5 The week prior, Logan accidentally broke Heather’s house key off in the 

backdoor of the home. Therefore, Dean left the front door unlocked so Heather could 

get in when she returned from work without waking the other members of the family. 
6

the home and got a butcher knife and a butter knife. He then went upstairs to 

the children’s bedroom. He entered the bedroom and stabbed Logan in the 

back of the head with the butcher knife eight times. The oldest child, K.T.,

testified that she awoke to the sound of Logan screaming. When she realized 

what was happening, K.T. yelled at Exantus to stop and kicked him. Exantus 

then turned to K.T. and came at her with the butter knife. She grabbed the 

knife out of his hand. Exantus asked for the knife back and K.T. gave it to 

him. Exantus then ran the butter knife up her stomach and cut her nose with 

it. 

By that point, L.T. had gone downstairs to get Dean. When Dean 

reached the top of the stairs, Exantus came at him with the butcher knife 

raised and a struggle ensued. Dean was able to get the knife away from 

Exantus, but Dean’s pre-existing shoulder injury was re-injured during the 

fight. Dean told K.T. to go downstairs and call the police. All of the children 

except for Logan went downstairs with her, and she called 911. The police 

arrived shortly after and placed Exantus under arrest. The paramedics arrived

thereafter and attempted to save Logan’s life but were unable to do so. It was 

later discovered that Exantus also cut D.T.’s back at some point during the 

chaos. 

At trial, the Commonwealth sought the death penalty. Its theory of the 

case was that Exantus smoked or otherwise took some illegal substance which 

caused him to commit these crimes. The defense conceded that Exantus 

committed the acts and instead focused its case on proving that he was legally 
7

insane when he committed them. The defense adamantly denied that Exantus’ 

mental state during the crimes was caused by any kind of drug, illegal or 

otherwise. 

Forensic toxicologists from the Kentucky State Police laboratory and a 

private lab hired by the defense tested blood samples taken from Exantus 

shortly after his arrest. Jason Berry, a forensic scientist with the Kentucky 

State Police, tested Exantus’ blood for the presence of drugs. His test results 

showed the presence of THC, the psychoactive ingredient in marijuana. 

However, he stated with certainty that the compound was inactive at the time 

Exantus’ blood sample was drawn and was therefore not having an active effect 

on him. The defense’s private lab found only doxylamine, a metabolite found in 

NyQuil and other sleep aids, in Exantus’ blood sample. Nothing else was 

found, though both witnesses acknowledged that new drugs are being created 

continually, and it was possible that drugs existed which the labs did not yet 

test for. Additionally, less than a gram of marijuana was found loose in the 

floorboard of Exantus’ vehicle. That marijuana was tested by the Kentucky 

State Police crime lab, and their tests concluded it was not laced with any of 

the substances they test for – PCP, MDMA, etc. 

The sole mental health expert to testify in the case was Dr. Kenneth 

Benedict, a clinical psychologist retained by the defense. He testified that in 

his expert opinion Exantus suffered from a major mental illness marked by the 

presence of mania and psychosis. He further opined that during the 

commission of these crimes Exantus was legally insane. He could not provide 
8

a concrete diagnosis, but believed Exantus was suffering from either 

schizophrenia, schizoaffective disorder, bipolar disorder with psychosis, or 

major depressive disorder with psychosis. 

Based on the foregoing evidence, the jury found Exantus not guilty by 

reason of insanity for the first-degree murder of Logan, and not guilty by 

reason of insanity of the first-degree burglary of the home. He was found guilty 

but mentally ill of the second-degree assaults of K.T. and D.T., and guilty but 

mentally ill of the fourth-degree assault of Dean. 

Additional facts are discussed below as necessary. 

I. ANALYSIS 

Exantus presents several arguments to this Court. To wit: (1) that the 

jury’s verdicts were impermissibly inconsistent; (2) that the trial court erred by 

failing to grant his motions for directed verdict; (3) that the trial court erred by 

failing to provide lesser-included offense instructions to the jury; (4) that the 

jury instructions failed to define the term “dangerous instrument”; (5) that the 

trial court erred by denying his motion to strike three jurors for cause; and (6) 

that the trial court erred by admitting evidence of a prior bad act. We now 

address each issue in turn.

A. The jury’s verdicts were not impermissibly inconsistent.

As previously stated, Exantus was found not guilty by reason of insanity 

of first-degree murder and burglary and was also found guilty but mentally ill 

of three assaults. A component of Exantus’ directed verdict argument is that 
9

the jury’s verdicts were impermissibly inconsistent.6 But, as this issue is a 

matter of first impression for this Court, we believe it warrants separate 

discussion. 

This Court has never had occasion to review a case in which the jury 

returned verdicts of both insanity and guilty but mentally ill. Although our 

case law regarding verdicts that require inconsistent mental states is wellestablished, this issue is novel because a verdict of insanity goes directly to a 

defendant’s culpability: it completely absolves a defendant of all criminal 

responsibility for his acts.7 Yet a verdict of guilty but mentally ill allows a 

defendant to be held responsible for his acts8 because, though mentally ill, he 

is still able to appreciate the criminality of his conduct and conform his 

behavior to the requirements of law.9 And therein, as Exantus’ argument goes, 

lies the rub.

In that vein, Exantus’ argument here is twofold. First, he asserts that 

there was no evidence that his mental state shifted from insanity to guilty but 

mentally ill in the short time between the burglary and murder and the three 

assaults. He further advocates for an exception to our inconsistent verdict 

rule. That exception would require that, if a jury finds a defendant not guilty 

 

6 This argument was properly preserved for our review by Exantus’ post-trial 

motion for judgment notwithstanding the verdict. Kentucky Rule of Criminal 

Procedure (RCr) 10.24.

7 See Kentucky Revised Statute (KRS) 504.020(1).

8 See KRS 504.150(1).

9 Compare KRS 504.060(5) with KRS 504.060(6). 
10

by reason of insanity on at least one count of a multiple count indictment, it 

must find him not guilty by reason of insanity on all counts arising from the 

same criminal episode. 

For the reasons that follow, we do not believe an exception to the rule

regarding inconsistent verdicts is warranted. We accordingly hold that a 

verdict finding a defendant both not guilty by reason of insanity and guilty but 

mentally ill is permissible as long as there was sufficient evidence to support 

the jury’s finding of guilty but mentally ill on a particular count.

10 We further 

hold that there was sufficient evidence supported the jury’s verdict of guilty but 

mentally ill on the three counts of assault in this case. 

The seminal case on inconsistent verdicts in Kentucky is Commonwealth 

v. Harrell.

11 In Harrell, the defendant was driving under the influence while

doing twice the speed limit when he drove through a stop sign and collided 

with another car.12 The defendant was convicted for the second degree assault 

of the driver of the other vehicle, who was seriously injured, and of the reckless 

homicide of the passenger of the other vehicle, who died.13 The defendant

argued before the Court of Appeals that the mental states required for those 

crimes were logically inconsistent: reckless homicide required a mental state of 

 

10 We note that, while not at issue in this case, the same rule and reasoning 

would apply if the jury found the defendant not guilty by reason of insanity and guilty 

instead of guilty but mentally ill. 

11 3 S.W.3d 349 (Ky. 1999).

12 Id. at 349-50. 

13 Id. 
11

recklessness, while second-degree assault required a mental state of 

wantonness.14 The Court of Appeals agreed and reversed his conviction under 

Pace v. Commonwealth,

15 which held that “where injury simultaneously occurs 

to more than one victim; it is logically inconsistent for the jury to convict the 

defendant of crimes requiring different criminal culpabilities as to those 

parties.”16

This Court subsequently reversed the Court of Appeals, overruled Pace,

and affirmed the defendant’s convictions.

17 The Harrell Court held that Pace 

“focused erroneously on the concept of consistency rather than upon the 

concept of sufficiency of evidence to sustain each conviction,” and that “a 

defendant may have a reckless state of mind with respect to one result and a 

wanton state of mind with respect to another result arising simultaneously 

from the same conduct.”

18 In reaching this conclusion, the Court reasoned 

that a

rigid adherence to a prohibition against inconsistent 

verdicts may interfere with the proper function of a 

jury, particularly with regard to lenity. Such an 

approach would unduly restrict the right of the jury to 

consider the evidence broadly and convict or acquit 

based upon its view of the evidence pertaining to each 

charge. Moreover, that approach requires analytical 

 

14 Id. at 350.

15 636 S.W.2d 887 (Ky. 1982), overruled by Commonwealth v. Harrell, 3 S.W.3d 

349 (Ky. 1999).

16 Harrell, 3 S.W.3d at 351 (quoting Commonwealth v. Runion, 873 S.W.2d 583, 

587 (Ky. App. 1993), disapproved of by Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 

1999)). 

17 Id.

18 Id.
12

precision that would inevitably lead to confusion and 

needless appellate reversals.19

Instead, this Court believed the better approach was to consider each 

count of an indictment as its own stand-alone indictment.20 Consistent 

verdicts would therefore not be required because the only inquiry on review 

would be whether there was sufficient evidence to support an individual 

conviction.21 This Court further noted that this approach was consistent with 

the United States Supreme Court’s holding in United States v. Powell, 469 U.S. 

57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).

22 Powell, in turn, provides a more

thorough discussion of the rationales behind the rule allowing inconsistent 

verdicts. As we believe the wisdom of Powell applies to the case at bar, we now 

recount some of it briefly.

In Powell, the Supreme Court readily acknowledged that inconsistent 

verdicts “present a situation where ‘error,’ in the sense that the jury has not 

followed the court's instructions, most certainly has occurred.”23 But 

inconsistent verdicts should not necessarily be considered “a windfall to the 

government at the defendant’s expense,” because it is impossible to know 

which party the inconsistent verdict benefitted.

24 In other words, it is entirely 

 

19 Id.

20 Id. 

21 Id. 

22 Id. 

23 Powell, 469 U.S. at 65.

24 Id. 
13

possible that in any given case the jury believed the defendant was guilty of a 

greater offense in a multiple count indictment, but “through mistake, 

compromise, or lenity,” decided to acquit the defendant of the greater offense 

and convict him of the lesser offense.25 There is simply no way to know “whose 

ox has been gored.”26 Thus, “the possibility that the inconsistent verdicts may 

favor the criminal defendant as well as the Government militates against review 

of such convictions at the defendant's behest.”

27 Finally, the Court noted that 

defendants are already protected “from jury irrationality or error by the 

independent review of the sufficiency of the evidence undertaken by the trial 

and appellate courts.”

28

We can discern no reason to deviate from the approaches of Harrell and 

Powell when addressing cases that involve a finding of not guilty by reason of 

insanity and guilty but mentally ill. As the Powell Court discussed, the only 

party that bears the burden of a jury’s exercise of lenity is the Government, as 

it is unable to appeal a verdict of acquittal29 or its functional equivalent of 

insanity. And while jury nullification is without question problematic, “such an 

alternative should be available for the difficult cases where the jury wishes to 

avoid an all-or-nothing verdict.”

30

 

25 Id. 

26 Id. 

27 Id. 

28 Id. at 67.

29 Id. at 66.

30 Id. 
14

The case now before us is nothing if not difficult. This Court strongly 

suspects that the verdicts in this case were reached because the jury could not 

reach either of the all-or-nothing verdicts advocated for by the parties. The 

defense urged the jury to find Exantus not guilty by reason of insanity on all 

counts, while the Commonwealth argued that the jury had to find him guilty on 

all counts. Neither party directly advocated for a verdict of guilty but mentally 

ill on any count. It is therefore possible that the jury reached its verdicts

through compromise and the exercise of lenity. But, as with any case, 

determining exactly how the jury reached its verdict would require peaking 

behind a curtain that is nearly always off limits to the prying eyes of an 

appellate court. Therefore, an “individualized assessment of the reason for the 

inconsistency would be based either on pure speculation, or would require 

inquiries into the jury's deliberations that courts generally will not 

undertake.”

31 For all of the foregoing reasons, we simply cannot hold that an 

exception to this steadfast rule should be made when a verdict of not guilty by 

reason of insanity is involved.32

Accordingly, we need only apply the Harrell test to resolve this issue. 

That test simply asks whether there was sufficient evidence to find Exantus 

guilty but mentally ill of the three assaults. This issue was raised by Exantus’ 

post-trial motion for judgment notwithstanding the verdict. We therefore apply 

 

31 Id. 

32 Finally, we note that this approach is consistent with the conclusion of the 

only other state supreme court that has addressed this issue. See Milam v. State, 341 

S.E.2d 216 (Ga. 1986).
15

the same standard of review as we would for review of a trial court’s denial of a 

motion for directed verdict.33 Accordingly, the evidence was insufficient only “if 

under the evidence as a whole, it would be clearly unreasonable for a jury to 

find” Exantus guilty but mentally ill of the three assaults.

34 As Exantus only 

argues that the mental states were inconsistent, we will not address sufficiency 

of evidence for the actus reus elements for those crimes here. 

Regarding the evidence of Exantus’ mental state, what was perhaps one 

of the more important pieces of evidence came from Dr. Benedict. As 

previously mentioned, Dr. Benedict was the defense’s expert and was the only 

mental health expert to testify at trial. Dr. Benedict testified that it was his 

opinion that Exantus was legally insane during the commission of his crimes 

and noted the presence of both psychosis and mania in particular. Towards 

the end of Dr. Benedict’s direct examination defense counsel asked him if it 

was possible for psychosis to wax and wane over time. To this, Dr. Benedict 

replied, “yes. Symptoms of psychosis, even during an active phase when the 

symptoms are relatively prominent and in play a lot, do wax and wane on a 

daily basis, on an hourly basis, even within a thirty-minute interview you see 

the waxing and waning of certain symptoms.” This testimony, coupled with the 

fact that psychosis and mania do not necessarily equate to legal insanity, 

provided the jury with a basis to find that Exantus’ mental state could have 

 

33 Capshaw v. Commonwealth, 253 S.W.3d 557, 562 (Ky. App. 2007) (citing 

Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256 (Ky. App. 2007)).

34 See Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
16

shifted from insanity to guilty but mentally ill during the short period of time in 

question. Or, in other words, the jury could have reasonably believed that 

Exantus was having intervals of lucidity during the commission of his crimes. 

In addition, several other pieces of evidence suggested that, while 

Exantus was almost certainly suffering from some kind of mental illness, he 

could still appreciate the criminality of his conduct. For example, while Dean 

and Exantus were fighting, Dean told Exantus he was going to kill him and 

Exantus begged him not to kill him. Additionally, Officer Scott Cottingham 

testified that the responding officers had to taser Exantus three times before 

they were able to handcuff him. In fairness, this piece of evidence could cut 

both ways. But it would not be unreasonable for a juror to believe that 

Exantus was attempting to escape, which is permissible as evidence of a guilty 

conscience.35 Ofc. Cottingham also testified that Officer Johnathan Guiler 

began doing first aid on Logan before the paramedics arrived. Ofc. Cottingham

heard Exantus ask if Ofc. Guiler was doing chest compressions and also heard 

Exantus say “he’s not doing the right number he should be doing 30 

compressions.” All of the officers that responded to the scene testified to 

hearing Exantus say he was sorry several times.

Less than an hour after Exantus was arrested, he was interviewed by 

Detective Keith Ford and Ofc. Guiler. Det. Ford testified that Exantus did not 

appear to be under the influence of alcohol or drugs during the interview and 

 

35 See, e.g., Commonwealth v. Bowles, 237 S.W.3d 137, 140 (Ky. 2007).
17

was “lucid and candid” when answering questions. Exantus accurately told 

the officers information such as his name, date of birth, social security 

number, home address, phone number, and occupation, and gave them an 

accurate description of his vehicle and where he left it. Exantus knew that he 

was in Versailles, Kentucky, and that he originally intended to drive to Florida 

to see family members that lived there. He told the officers he entered the

home through an unlocked door and his description of the home was 

consistent with the photographic evidence. Exantus told the officers he walked 

to the kitchen and got a knife. He knew that he stabbed a child in the head 

with the knife, and that he killed that child. Exantus also knew that the father 

of that child put him in a chokehold, and he understood why the father was 

angry with him. Finally, he told the officers that someone who stabs a child in 

the head should “go to jail” and “should be punished.” Finally, when Det. Ford 

asked Exantus what his fiancé would think about what he did, he replied 

“she’s not going to like it, sir.”

Based on the foregoing, it was not clearly unreasonable for the jury to 

find the requisite mental state to return a verdict of guilty but mentally ill of 

the second-degree assaults of K.T. and D.T. and the fourth-degree assault of 

Dean. We accordingly affirm. 

B. The trial court did not err by denying Exantus’ motions for directed 

verdict.

Exantus next argues that the trial court erred by denying his motions for

directed verdict for the assaults of K.T., D.T., and Dean. The standard of 

review for denial of a motion for directed verdict is as follows:
18

On motion for directed verdict, the trial court must draw all fair 

and reasonable inferences from the evidence in favor of the 

Commonwealth. If the evidence is sufficient to induce a reasonable 

juror to believe beyond a reasonable doubt that the defendant is 

guilty, a directed verdict should not be given. For the purpose of 

ruling on the motion, the trial court must assume that the 

evidence for the Commonwealth is true, but reserving to the jury 

questions as to the credibility and weight to be given to such 

testimony. On appellate review, the test of a directed verdict is, if 

under the evidence as a whole, it would be clearly unreasonable for 

a jury to find guilt, only then the defendant is entitled to a directed 

verdict of acquittal.

36

With these rules in mind we now address each argument in turn. 

i.) Second-degree assault of K.T.

Exantus was convicted under the theory of second-degree assault that 

required him to intentionally cause physical injury to K.T. with a dangerous 

instrument.37 He asserts that the trial erred by failing to grant his motion for 

directed verdict for two reasons.38 One, because the Commonwealth failed to 

prove that K.T. suffered a physical injury; and two, because a butter knife does 

not constitute a dangerous instrument. 

These arguments were properly preserved for our review by defense 

counsel’s motions for directed verdict at the close of the Commonwealth’s 

evidence and at the close of all the evidence.39 Those motions asserted that the 

 

36 Benham, 816 S.W.2d at 187–88.

37 KRS 508.020(1)(b). 

38 Exantus also argues that the Commonwealth failed to prove he acted 

intentionally. But, as we have already addressed the sufficiency of the mens rea 

evidence in Section II(A), we see no reason to discuss it again here. In addition, 

Exantus asserts that the jury was not instructed on the definition of a “dangerous 

instrument.” But because we address this argument in Section II(D) as a standalone 

issue, we will not address it as part of his directed verdict argument. 

39 See, e.g., Early v. Commonwealth, 470 S.W.3d 729, 733 (Ky. 2015).
19

Commonwealth failed to meet its burden of proof on the second-degree assault 

charge in relation to K.T. and identified the elements of second-degree assault 

the Commonwealth failed to prove as recounted above.40

Exantus first contends that there was insufficient evidence that K.T.

suffered a physical injury. As part of his argument, he contends that this 

Court should overrule Meredith v. Commonwealth and its corresponding 

interpretation of the term “physical injury” to mean any injury.41 We will 

address his arguments in reverse order. 

In Meredith, the defendant thrust a hunting knife at the victim during a 

scuffle.42 The victim grabbed the knife to disarm the defendant and suffered a 

“superficial wound to his left hand from the knife.”43 The defendant was 

consequently convicted of second-degree assault under the theory that he 

intentionally caused physical injury to the victim by use of a deadly weapon or 

dangerous instrument.44 

At the Court of Appeals the defendant argued that the superficial wound 

to the victim’s hand did not meet the statutory definition of physical injury.45 

To address this issue the Court of Appeals began by outlining the statutory 

definition of physical injury, which is either “substantial physical pain or any 

 

40 CR 50.01 (“A motion for a directed verdict shall state the specific grounds 

therefor.”). 

41 628 S.W.2d 887, 888 (Ky. App. 1982).

42 Id. 

43 Id. 

44 Id. 

45 Id. 
20

impairment of physical condition.”46 But, because the evidence did not suggest

that the victim suffered “substantial physical pain,” the Court was left to 

interpret the meaning of “any impairment of physical condition.”47 To do this, 

the Court of Appeals primarily compared the statutory definition of “serious 

physical injury” to that of “physical injury.” On that front, it opined:

The definition of “serious physical injury,” as it 

pertains to the impairment necessary to constitute 

such injury, in KRS 500.080(15) speaks of “prolonged 

impairment of health, or prolonged...impairment of the 

function of any bodily organ.” Contrasting this 

“prolonged impairment of health” with “any 

impairment of physical condition,” we feel that the 

color of the environment of these latter words would be 

apparent even to one suffering from achromatopsia. 

The same phrase, “any impairment of physical 

condition,” would be included in third degree assault, 

a misdemeanor, and without it there could be no 

assault that did not involve a grievous injury.48

It therefore held that “the words ‘impairment of physical condition’ simply 

mean ‘injury.’”49 

In the intervening thirty-eight years, Meredith’s holding has come to be 

more colloquially stated as “physical injury means any injury.”50 Things as

minor as “a small wound not past the epidermis, with no blood loss,”51 “pain in 

 

46 Id. See also KRS 500.080(13). 

47 Meredith, 628 S.W.2d at 888.

48 Id. 

49 Id. 

50 See, e.g., Doneghy v. Commonwealth, 410 S.W.3d 95, 111 (Ky. 2013); 

Hubbard v. Commonwealth, 932 S.W.2d 381, 383 (Ky. App. 1996); Covington v.

Commonwealth, 849 S.W.2d 560, 564 (Ky. App. 1992) (emphasis added). 

51 Doneghy, 410 S.W.3d at 110.
21

[the] left hip,”52 and “a bruised face and a scratch below [the] eye”

53 have all 

qualified as physical injuries under this definition. Exantus urges this Court 

to overturn our straightforward interpretation and replace it with a test that 

would determine whether a victim suffered a physical injury on a case-by-case 

basis, though he does not discuss how the term “any impairment of physical 

condition” could be interpreted differently. Regardless, we decline to overturn 

Meredith, as its holding remains sound. 

The statutory definition of “physical injury” at issue is “any impairment 

of physical condition.”54 Our General Assembly speaks through statute, and 

this Court must always assume that the General Assembly means what it says

and attempt to give effect to that meaning.

55 In this context, it said any 

impairment of physical condition, and it meant any impairment of physical 

condition, i.e. any injury. This conclusion is further bolstered by the fact that 

the General Assembly has not altered its definition of physical injury in the 

nearly four decades since this Court rendered Meredith. We accordingly 

decline Exantus’ request to abandon that definition.

That said, K.T.’s injury clearly qualifies as a physical injury. K.T.

testified that Exantus cut her nose with the butter knife. The defense 

presented no evidence to contradict that this occurred. It would therefore not 

 

52 Hubbard, 932 S.W.2d at 383.

53 Covington, 849 S.W.2d at 564.

54 KRS 500.080(13).

55 See, e.g., Rice v. Commonwealth, 492 S.W.3d 563, 564 (Ky. 2016).
22

have been clearly unreasonable for the jury to find that she suffered a physical 

injury. 

Next, Exantus asserts that his directed verdict motion should have been 

granted because a butter knife is not a dangerous instrument. We disagree. 

A dangerous instrument is “any instrument...article, or substance which, 

under the circumstances in which it is used, attempted to be used, or 

threatened to be used, is readily capable of causing death or serious physical 

injury[.]”56 Exantus argues that a butter knife cannot be a dangerous 

instrument because it is not readily capable of causing death or serious 

physical injury. But whether an object is a dangerous instrument typically has 

little to do with the object itself and more to do with how the object was used 

on a victim.

For example, in Smith v. Commonwealth, a carrot was used as a 

dangerous instrument.57 The defendant was convicted of two counts of 

second-degree assault, and both counts required that the defendant 

intentionally caused physical injury to the victim by use of a dangerous 

instrument.58 The defendant sexually assaulted his wife with a carrot in both 

her rectum and vagina, resulting in physical injury but not serious physical 

injury.

59 This Court affirmed the second-degree assault convictions.60

 

56 KRS 500.080(3).

57 610 S.W.2d 602 (Ky. 1980).

58 Id. at 604.

59 Id. at 603-04.

60 Id. 604.
23

In this case, a butter knife was used to cut K.T.’s nose, resulting in 

physical injury. Therefore, it would not have been unreasonable for the jury to 

find that the butter knife was “used, attempted to be used, or threatened to be 

used”

61 in a way that was readily capable of causing death or serious physical 

injury. The trial court accordingly did not abuse its discretion by failing to 

grant Exantus’ motion for directed verdict for the second-degree assault of K.T.

ii.)Second-degree assault of D.T.

Exantus also contends that the trial court erred by failing to grant his 

motion for directed verdict on the charge of second-degree assault against D.T. 

As with K.T., he argues that D.T.’s injury did not constitute a physical injury 

within the meaning of KRS 500.080(13).62 

The Commonwealth concedes that this issue is preserved, but we 

disagree with that concession. Exantus’ initial motion at the close of the 

Commonwealth’s case-in-chief argued that D.T.’s injury was not a “physical 

injury.” However, both his written and oral motions to renew his motion for 

directed verdict at the close of all the evidence were entirely silent as to the 

second-degree assault on D.T. If the defense presents evidence after the 

Commonwealth concludes its evidence,

63 failure to properly renew a motion for 

directed verdict at the close of all the evidence will render the issue 

 

61 KRS 500.080(3).

62 Exantus also argues that the Commonwealth failed to prove that Exantus 

acted intentionally, and that the trial court failed to provide a jury instruction on 

“dangerous instrument.” Again, because those arguments are addressed in Sections 

II(A) and II(D), respectively, we see no reason to address them here. 

63 See Hampton v. Commonwealth, 231 S.W.3d 740, 750 (Ky. 2007).
24

unpreserved.

64 Exantus has not requested review of this issue for palpable 

error under RCr 10.26.

Nonetheless, D.T.’s injury was a physical injury within the meaning of 

the statute. K.T. testified that the family went to the hospital after Exantus 

was arrested. She said that while they were at the hospital, D.T. told her that 

“the man stabbed her.” A photograph introduced into evidence showed that 

D.T. had a cut about an inch long and a half centimeter wide on her mid-back. 

Based on the same reasoning applied in Section II(B)(i) of this opinion, this 

injury met the statutory definition of a physical injury.

iii.) Fourth-degree assault of Dean 

Last, Exantus argues that the trial court erred by failing to grant his 

motion for directed verdict for the count of fourth-degree assault on Dean. 

Exantus was convicted under the theory of fourth-degree assault that required 

that he intentionally caused physical injury to Dean.65 Exantus alleges that 

the Commonwealth failed to prove that he acted with intent, and therefore his 

directed verdict motion should have been granted. 

But, as with the directed verdict motion for the assault on D.T., this error 

was not properly preserved for our review. Exantus’ written motion for directed 

verdict at the close of the Commonwealth’s evidence argued that the

Commonwealth failed to prove that Exantus acted intentionally with regard to 

the fourth-degree assault on Dean. However, both Exantus’ written and oral 

 

64 See, e.g., Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky. 1998).

65 KRS 508.030(1)(a).
25

motions for directed verdict at the close of all of the evidence were completely 

silent as to the count of fourth-degree assault. As previously stated, failure to 

properly renew a motion for directed verdict will render the issue 

unpreserved.66 Exantus did not request that we review this issue for palpable 

error under RCr 10.26. 

Nonetheless, we have already addressed the sufficiency of the mens rea 

evidence for the assault charges at length in Section II(A) of this opinion and 

held it was sufficient. 

C. The trial court did not abuse its discretion by declining to instruct the 

jury on fourth-degree assault against K.T. and D.T., respectively. 

Exantus next asserts that the trial court erred by failing to instruct the 

jury on the lesser included offense of fourth-degree assault for the attacks on 

K.T. and D.T. These alleged errors were preserved by Exantus’ tender of fourthdegree assault instructions in relation to both girls.67

We review a trial court’s ruling regarding jury instructions for abuse of 

discretion.68 A trial court abuses its discretion when it acts in a way that is 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.69

Trial judges have a statutory duty to instruct the jury on the whole law of 

the case,70 i.e., any instruction inferable or supported to any extent by the 

 

66 Baker, 973 S.W.2d at 55.

67 RCr 9.54(2). 

68 Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). 

69 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

70 RCr 9.54(1). 
26

evidence presented at trial.71 When ruling on whether it was error not to give a 

jury instruction, appellate courts must consider the evidence in a light most 

favorable to the party requesting the instruction.72 Even so, a trial court does 

not have a duty to instruct on a lesser-included offense simply because a 

defendant requests it.73 “[A]n instruction on a lesser included offense is 

required only if, considering the totality of the evidence, the jury might have a 

reasonable doubt as to the defendant's guilt of the greater offense, and yet 

believe beyond a reasonable doubt that the defendant is guilty of the lesser 

offense.”74 Therefore, the question this Court must answer is: in a light most 

favorable to Exantus, could the jury reasonably find Exantus not guilty of 

second-degree assault, but guilty of fourth-degree assault?

Exantus’ tendered instructions on fourth degree assault were the same 

for both K.T. and D.T. In pertinent part, the tendered instructions required 

that the jury find that Exantus wantonly caused physical injury to them.75 

Conspicuously absent from this instruction is a required finding that Exantus 

caused physical injury to them with a dangerous instrument. Accordingly, 

under Exantus’ proposed instruction, the jury would have to find that Exantus 

 

71 Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999).

72 Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005) (citing Ruehl v. 

Houchin, 387 S.W.2d 597, 599 (Ky. 1965)). 

73 Swan v. Commonwealth, 384 S.W.3d 77, 99 (Ky. 2012).

74 Id. (quoting Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky. 2003)). 

75 KRS 508.030(1)(a). 
27

acted wantonly and that he caused physical injury to the girls without using a 

dangerous instrument. 

While Exantus does at least claim that the jury could have found he 

caused K.T. and D.T.’s injuries without a dangerous instrument, he spends the 

majority of his argument supporting his contention that the jury could have 

found that he acted wantonly during the assaults. He asserts, correctly, that 

his mental state during the assaults was a question of fact for the jury to 

decide. But, even assuming arguendo that the jury could have found that he 

acted wantonly, that would not have been the end of its inquiry. It would also 

need to find beyond a reasonable doubt that Exantus inflicted the girls’ injuries 

without the use of a dangerous instrument. Based on the evidence presented 

at trial, no reasonable juror could have made such a finding. 

As previously stated, K.T. testified that Exantus cut her nose with a 

butter knife. K.T. also testified that later that night, when the family was at the 

hospital, D.T. told her that Exantus had “stabbed her,” though it was unclear 

whether D.T. was cut with the butter knife used on K.T. or the butcher knife 

used on Logan. The defense conceded that Exantus committed the crimes he 

was charged with. It therefore presented no evidence whatsoever that Exantus 

somehow caused the girls injuries without use of a knife or knives. 

We have already held in Section II(B)(i) of this opinion that the butter 

knife used to cut K.T.’s nose qualified as a dangerous instrument under the 

statutory definition of that term. By the same reasoning applied in that 

section, either of the knives that could have been used on D.T. would have 
28

clearly qualified as a dangerous instrument. Stated differently, whichever

instrument was used to cut D.T. was “used, attempted to be used, or 

threatened to be used”76 in a way that was readily capable of causing death or 

serious physical injury. 

Consequently, no evidentiary basis existed upon which the jury could 

have had reasonable doubt that Exantus did not use a dangerous instrument 

to inflict the girls’ physical injuries. The jury therefore, could not have 

reasonably believed that Exantus was not guilty of second-degree assault yet 

believe beyond a reasonable doubt that he was guilty of fourth-degree 

assault.77 The trial court did not abuse its discretion, and we affirm. 

D. The trial court’s failure to provide the jury with the definition of 

“dangerous instrument” was harmless error. 

Exantus next alleges that his second-degree assault convictions must be 

reversed because the jury instructions did not define the term “dangerous 

instrument.” The Commonwealth argues that this issue was not properly 

preserved because Exantus did not verbally object during the trial court’s 

discussion with the parties about the jury instructions. However, we consider

this issue to be preserved by Exantus’ tendered instructions, which included a 

definition of “dangerous instrument.”78

 

76 KRS 500.080(3).

77 Swan, 384 S.W.3d at 99.

78 RCr 9.54(2). 
29

Again, Exantus was convicted under the theory of second-degree assault 

provided for in KRS 508.020(1)(b). Under KRS 508.020(1)(b), a defendant is 

guilty of assault-second if he “intentionally causes physical injury to another 

person by means of a deadly weapon or a dangerous instrument.” The 

instructions regarding the second-degree assault of K.T. read:

You will find the Defendant guilty of Second DegreeAssault under this instruction if, and only if, you 

believe from the evidence beyond a reasonable doubt 

all of the following:

a) That in Woodford County on or about December 7, 

2015, and before the finding of the Indictment 

herein, he inflicted injury upon an 11-year-old 

female [K.T.] with a knife, a dangerous 

instrument; AND

b) That in so doing, he intentionally caused physical 

injury to K.T.

79

The instruction for the second-degree assault on D.T. was identical to the 

instruction for K.T.’s assault, except for of course their names and ages. 

Thus, the jury could have found Exantus guilty of the second-degree 

assaults of K.T. and D.T. only if it believed that the knife used to injure them 

was a dangerous instrument. But, strangely, the “Definitions” instruction

defined the term deadly weapon: “in the context of this case, any knife other 

than an ordinary pocket knife or hunting knife,”80 but did not define the term 

dangerous instrument. Exantus argues it was reversable error for the trial 

court to fail to provide the jury with the definition of dangerous instrument. 

 

79 (emphasis added). 

80 KRS 500.080(4)(c).
30

Any error that a trial court commits in instructing the jury, including 

failing to define an element of an offense, is presumed to be prejudicial.81 

Nevertheless, such an error is subject to harmless error review.82 “The test for 

harmless error is whether there is any substantial possibility that the outcome 

of the case would have been different without the presence of that error.”83 

Stated differently, if this Court concludes beyond a reasonable doubt that a 

properly instructed jury would have reached the same verdict, the presumption 

is rebutted and the error is deemed harmless.84 Therefore, the question before 

this Court is whether the jury would have found Exantus guilty but mentally ill

of the two counts of second-degree assault if the trial court had provided the 

definition of dangerous instrument. We hold that it would have. 

If the trial court had provided a definition of dangerous instrument that 

instruction would have stated that a dangerous instrument is “any instrument, 

article, or substance which, under the circumstances in which it is used, 

attempted to be used, or threatened to be used, is readily capable of causing 

death or serious physical injury[.]”85 

With regard to K.T., the evidence was uncontroverted that Exantus cut 

her nose with a butter knife. We therefore believe beyond a reasonable doubt 

 

81 See Commonwealth v. McCombs, 304 S.W.3d 676,680 (Ky. 2009) (citing Harp 

v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008)). 

82 See, e.g., Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008).

83 Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006).

84 See McCombs, 304 S.W.3d at 681 (citing Neder v. United States, 527 U.S. 1, 

119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).

85 KRS 500.080(3). 
31

that, if the jury had been given the definition of dangerous instrument, its 

verdict would not have changed. More specifically, that the jury would have 

found that: (1) Exantus inflicted a physical injury on K.T. with a knife; and (2) 

that knife, under the circumstances in which it is used, attempted to be used, 

or threatened to be used, was readily capable of causing death or serious 

physical injury. 

Likewise, with regard to D.T., the evidence was uncontroverted that 

Exantus “stabbed” her with either a butcher knife or a butter knife, resulting in 

a laceration on her mid-back. We therefore believe beyond a reasonable doubt 

that if the jury was provided the definition of dangerous instrument it would 

have found that Exantus was guilty of the second-degree assault on D.T. 

Specifically, regardless of whether the instrument was a butcher knife or butter 

knife, that: (1) Exantus inflicted a physical injury on D.T. with a knife; and (2) 

that knife, under the circumstances in which it is used, attempted to be used, 

or threatened to be used, was readily capable of causing death or serious 

physical injury.

There is simply no basis upon which to conclude that being provided 

with the definition of dangerous instrument would have somehow changed the 

jury’s verdict, and Exantus has provided no argument to that effect. This is 

particularly true when considering that the defense conceded that Exantus 

committed all of the actus reus elements of these crimes and, in effect, the only 

issue for the jury to decide was whether he was legally insane when he 
32

committed them. We therefore hold that the failure to instruct on the 

definition of dangerous instrument was harmless error. 

E. The trial court did not abuse its discretion by declining to strike Juror 

5300 and Juror 5301 for cause. 

Exantus asserts that the trial court erred by denying his motions to 

strike Jurors 5199, 5300, and 5301 for cause. 

At the outset, we note that Exantus failed to properly preserve this issue 

with regard to Juror 5199. In order to preserve the alleged error that the trial 

court failed to strike a juror for cause, a defendant must do the following.86 

First, he must move the court to strike the juror for cause and be denied. 

Thereafter, he must exercise a peremptory strike on that juror and identify a 

different juror upon which he would have otherwise used that peremptory 

strike.87 He must use all of his peremptory strikes, and, finally, the juror the 

defendant would have otherwise used his peremptory strike on must ultimately 

sit on the jury.

88

Exantus moved to strike Juror 5199 for cause, but he did not exercise a 

peremptory strike on Juror 5199. The defense’s peremptory strike sheet noted

all of the jurors that it attempted to strike for cause by putting “(motion to 

strike denied)” next to those jurors’ numbers. But, for whatever reason, this 

 

86 Because this trial occurred prior to this Court’s recent holdings in Floyd v.

Neal, 590 S.W.3d 245 (Ky. 2019) and Ward v. Commonwealth, 587 S.W.3d 312 (Ky. 

2019), the holdings of those cases with regard to the preservation of a for cause strike 

issue do not apply to this case. 

87 Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009).

88 King v. Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009).
33

connotation was not next to juror 5199 even though the defense moved to 

strike him for cause. In addition, Juror 5199 was identified as one of the 

jurors the defense would have peremptorily struck if its motions to strike for 

cause had been granted. Exantus had a total of nine peremptory strikes.89 He 

used five peremptory strikes on other jurors that he attempted to strike for 

cause and used the remaining four on jurors other than Juror 5199. We 

therefore hold that this issue is unpreserved, and because Exantus has not 

requested review for palpable error90 we decline to address it.91

But, with regard to Jurors 5300 and 5301, Exantus did all that was 

required to preserve the issue of whether they should have been struck for 

cause. Notwithstanding, we hold that, with one exception, Exantus’ arguments 

against Jurors 5300 and 5301 became moot when the jury found him not 

guilty by reason of insanity of murder and first-degree burglary. 

As we have mentioned previously, this was originally a capital case. 

Therefore, the trial court conducted both general and individual voir dire. The 

focus of individual voir dire was to determine whether the jurors could consider 

the full range of possible penalties during the sentencing phase of trial, which 

by its nature included whether they could consider potential mitigation 

evidence.

 

89 Exantus had the standard allotment of eight peremptory strikes under RCr 

9.40(1), plus one additional strike under RCr 9.40(2) because the trial court sat two 

alternate jurors. 

90 See RCr 10.26.

91 Juror 5199 sat on the jury but was removed as one of the two alternates 

before the jury’s guilt phase deliberations.
34

Exantus argues that Juror 5300 should have been struck for cause for 

two reasons. First, because she could not consider the full range of available 

penalties, and second, because she could not consider mitigation evidence 

when deciding on a penalty.

Juror 5300’s individual voir dire began by the trial court asking her if 

she could consider the full range of penalties, i.e. “twenty years in prison, the 

death penalty, and all the penalties between those two.” Juror 5300 responded 

that she could consider them all. She also responded affirmatively when the 

trial court asked her if she would consider mitigating evidence before imposing 

a penalty. However, during defense counsel’s questioning, the following 

exchange occurred:

Defense: For someone, again, in that hypothetical 

situation: death of innocent victim during another 

felony, would you consider a term of years to where 

they would have a definite out date?

5300: No. 

Defense: No? So under no circumstances could you 

give someone a twenty-year sentence who killed 

another human being and committed another serious 

felony?

5300: No. 

Defense: Okay, and you’re pretty confident. You 

didn’t hesitate at all on that. You sound pretty sure. 

And there’s nothing anyone could do to convince you 

otherwise of that?

5300: No. 

Defense: Okay, and even if someone told you or tried 

to pressure you into changing your viewpoint on that, 
35

you would not be able to consider a penalty of twenty 

years?

5300: No. 

Exantus argues that these responses demonstrated that she could not properly 

consider the full range of penalties, notwithstanding her response to the 

contrary when questioned by the trial court. In addition, Exantus points to the 

following responses during the Commonwealth’s questioning of Juror 5300 to 

support his argument that she could not properly consider mitigation evidence:

CW: Now before you decide what the penalty is you 

might hear something called mitigation evidence. That 

might be evidence of the defendant’s upbringing, 

maybe he had problems as a child, maybe he was a 

good employee at work, or maybe he had a drug issue. 

Is that the type of evidence you would like to hear 

before making a decision as to what the penalty 

should be?

5300: No, because I feel like that’s their past. Well, 

their past could have something to do with why they 

act out. So, yeah. 

CW: That’s something you would at least want to hear 

and consider?

5300: Yeah, I would take that into consideration. 

Exantus next makes identical arguments with regard to Juror 5301: that 

she could not consider the full range of penalties or mitigation evidence. 

Exantus also makes a third argument with regard to Juror 5301, but as we do 

not feel that argument is moot, we will discuss it in more detail infra. 

Regarding the two issues at hand, when Juror 5301 was questioned by the trial 

court she said that she could consider the full range of possible penalties. 

When she was later questioned by defense counsel, two exchanges occurred, 
36

which Exantus now points to in support of his arguments. The first concerned 

mitigation evidence:

Defense: The judge mentioned mitigating evidence as 

evidence that might lessen the penalty in a case and I 

wanted to go into that a little bit. If you were to hear 

that a defendant...had a drug or alcohol problem or

was intoxicated at the time of the crime. Is that 

something that you think deserved a greater penalty or 

a lesser penalty. 

5301: That deserves equal if not more. Because they 

chose to do that.

 

Defense: So if a defendant were to present evidence 

that they had a drug or alcohol problem or were 

intoxicated. That would either not change your 

thoughts on the penalty or it would increase the 

severity of the penalty?

5301: It would not lessen it. 

Defense: So in that specific situation it wouldn’t be 

something you would consider to lessen the penalty?

5301: No. 

Defense: What about if the defendant was younger? 

Say eighteen years of age but still young. Is that 

something you would take into consideration when 

deciding on penalty?

5301: No. They committed a crime, they deserve a 

punishment. Regardless of age. 

The second exchange concerned possible penalties:

Defense: I want to touch on mental illness and 

insanity briefly. Do you think it’s fair that a defendant 

who is insane at the time they committed a crime can 

be found not guilty? 

5301: You would have to prove that first. 
37

Defense: I guess what my question really is do you 

personally think it’s fair? 

5301: Even if the person is found to be insane, there 

still should be some punishment. 

Defense: So if we were to show by a preponderance of 

the evidence that [Exantus] was insane, you still think 

there should be some punishment?

5301: Yes. A life has been lost. 

Defense: So, based on that, could you really find him 

not guilty by reason of insanity? Knowing that there 

wouldn’t be a jail punishment?

5301: No.

While this Court certainly agrees that some of Juror 5300 and 5301’s 

responses were problematic, we cannot dispute the Commonwealth’s 

contention that the issue of whether the trial court erred by failing to strike 

these jurors was rendered moot when the jury found Exantus not guilty by 

reason of insanity. We acknowledge that Exantus is correct in arguing that the 

Commonwealth did not cite any case law in support of its argument. But this 

Court’s very recent case, Mulazim v. Commonwealth,

92 supports the 

Commonwealth’s position, if only through dicta. 

The co-defendants in Mulazim were charged with murder in the course of 

a robbery, a capital offense, and individual voir dire about possible penalties 

 

92 600 S.W.3d 183 (Ky. 2020). 
38

was accordingly held prior to trial.93 However, the co-defendants were 

ultimately acquitted of murder, and convicted of other non-capital offenses.94 

On appeal to this Court, the defendants in Mulazim alleged that the trial 

court erred by failing to strike five jurors for cause.95 This Court noted first

that it would only consider the defendants’ arguments with regard to two of the 

jurors due to the amount of extra peremptory strikes they had received.96 It 

then addressed the defendants’ argument that two of the jurors should have 

been struck for cause.97 The defendants argued, as Exantus does here, that 

the jurors should have been struck because they stated during their respective 

individual voir dires that they could not consider certain mitigating evidence.98 

The Court addressed these claims on the merits and held, based primarily on 

Harris v. Commonwealth,

99 that the trial court did not abuse its discretion in 

failing to strike either of them for cause.100 In closing, the Court stated:

 

93 Id. at 195.

94 Id. at 188-89.

95 Id. at 195.

96 Id. at 197 (“[T]he trial court could have erroneously failed to exclude four (4) 

jurors for cause, and the Defendants would still have received everything they were 

entitled to under RCr 9.40. Essentially, the extra peremptory strikes granted by the 

trial court have the potential to insulate the result from reversal and in this case they 

did.”). 

97 Id. at 198-200

98 Id. at 198-200.

99 313 S.W.3d 40 (Ky. 2010) (holding that “a capital defendant is entitled to 

present mitigating evidence to the jury, [and] the jury must be allowed to give effect to 

that evidence if it is so inclined...There is no entitlement, however, to a jury or to 

individual jurors committed at the outset to view particular mitigating factors as 

having a mitigating effect.”). 

100 Mulazim, 600 S.W.3d at 200.
39

We reiterate that the trial court's and counsel's 

extensive inquiry into mitigators on individual voir dire 

only occurred because the case was tried as a capital 

offense due to the murder and robbery[.] Notably, no 

convictions occurred on those offenses and 

consequently the jury never considered aggravated 

penalties, rendering Appellants’ focus on the 

jurors’ ability to consider mitigation evidence 

questionable at best.

101

Thus, although Mulazim does not directly address whether those issues were 

moot, it calls it into question. This Court now has the opportunity to address it

directly. 

“A case becomes moot as a result of a change in circumstances which 

vitiates the underlying vitality of the action. In such an action, a judgment 

when rendered, for any reason, cannot have any practical legal effect upon a

then existing controversy.”

102

All of the responses Exantus complains of in the case at bar occurred in 

the context of individual voir dire commonly used in capital cases to “death 

qualify” prospective jurors.103 Inquiries during this kind of voir dire are made 

solely in anticipation of one possible outcome: the jury finding the defendant 

guilty of a capital offense and thereafter considering the available range of 

sentences for a capital offense.

104 In this case, Exantus was found not guilty 

 

101 Id. at 200-01 (emphasis added).

102 Commonwealth v. Terrell, 464 S.W.3d 495, 498–99 (Ky. 2015) (internal 

quotation marks and citations omitted).

103 See, e.g., Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 

137 (1986), Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).

104 See generally KRS 532.025. 
40

by reason of insanity of murder and the aggravating circumstance of firstdegree burglary.105 The jury therefore did not consider any sentences or 

mitigating evidence for those crimes. Accordingly, Exantus’ argument that he 

was entitled to for cause strikes on Jurors 5300 and 5301 is based solely on 

their responses about deliberations that never took place. Meaning that if we 

were to reverse his conviction it would be based on prejudice that did not, and 

definitively could not, have occurred. We therefore hold that those arguments 

are moot. 

We reiterate for clarity that these alleged errors were rendered moot 

solely by virtue of what occurred in this case. Specifically, Exantus argues his 

convictions must be reversed because of responses Jurors 5300 and 5301 gave 

during individual voir dire. Individual voir dire, for both jurors, focused solely 

on what sentences and mitigating factors those jurors could or could not 

consider if they found Exantus guilty of a capital offense. Ultimately, Exantus 

was not convicted of a capital offense. Had Exantus been convicted of a capital 

offense, his arguments regarding Jurors 5300 and 5301 would not be moot. 

But, as we have previously mentioned, Exantus has asserted an 

argument in relation to Juror 5301 that is not moot. We will therefore address 

it on the merits. This Court reviews a trial court’s decision not to strike a juror 

for cause for abuse of discretion.106 A trial court abuses its discretion when it 

acts in a way that is arbitrary, unreasonable, unfair, or unsupported by sound 

 

105 KRS 532(2)(a)(2). 

106 Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007).
41

legal principles.107 If a trial court abuses its discretion by failing to strike a 

juror for cause, it is reversible error.108

During group voir dire Juror 5301 informed the court that a friend of 

hers had been murdered during an attempted robbery while he was visiting his 

wife’s grave. She explained that murder had occurred a year and a half ago, 

the perpetrator went to trial, and “justice was served.” Both the court and 

defense counsel asked Juror 5301 if anything about her experience would 

influence the way she would decide the case, and she said twice, without 

hesitation, that it would not.

Exantus argues to this Court that this recent tragic event would have 

been in Juror 5301’s mind throughout the trial, regardless of her statements to 

the contrary. This argument is not moot because Juror 5301’s response was 

not during individual voir dire, and concerns, generally, how Juror 5301 would 

have considered the evidence of all the violent crimes in this case. In other 

words, while her personal experience involved a murder, that experience could 

also affect the way she viewed the evidence of the assaults, for which Exantus 

was not acquitted. 

A trial court must remove a potential juror for cause when “there is 

reasonable ground to believe that a prospective juror cannot render a fair and 

 

107 English, 993 S.W.2d at 945.

108 Shane, 243 S.W.3d at 341 (Ky. 2007).
42

impartial verdict on the evidence[.]”109 This Court has expounded on this rule 

by stating that 

when there is uncertainty about whether a prospective 

juror should be stricken for cause, the prospective 

juror should be stricken. The trial court should err on 

the side of caution by striking the doubtful juror; that 

is, if a juror falls within a gray area, he should be 

stricken.110

In this case, Juror 5301’s personal tragedy did not constitute reasonable 

grounds to believe that she could not render a fair and impartial verdict based 

on the evidence. As she indicated, the perpetrator was prosecuted, and she 

believed justice was served. There was accordingly no reason to suspect that 

she might seek displaced retribution on Exantus. In addition, there was no 

hesitation in her responses that her experience would not affect her

deliberations. The trial court therefore did not abuse its discretion by failing to 

strike her for cause.

F. The trial court erred by not making the requisite statutory findings 

under KRE111 703, but the error was harmless. 

The final issue raised by Exantus is that the trial court erred by 

admitting evidence that, five years before the crimes in this case, Exantus 

violently shook his infant daughter from a previous marriage resulting in 

physical injury to her. This issue was properly preserved by Exantus’ multiple 

 

109 RCr 9.36(1). 

110 Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013).

111 Kentucky Rule of Evidence.
43

objections to this evidence being admitted.112 This Court reviews trial court’s 

ruling on the admissibility of evidence for abuse of discretion.113 A trial court 

abuses its discretion when it acts in a way that is arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.114 

During the hearing on the motion to exclude this evidence the defense

argued that it was prior bad act evidence and should be excluded under KRE 

404(b).

115 The Commonwealth responded that it should be allowed to use the 

evidence to challenge the basis of Dr. Benedict’s opinion that Exantus was 

legally insane during the commission of his crimes. The Commonwealth 

expounded that the concluding paragraph in Dr. Benedict’s report states that 

“this appears to be a case whereby an individual with no known criminal or 

psychiatric history committed a murder[.]” The Commonwealth asserted that 

this was demonstrably false information upon which Dr. Benedict based his 

finding of insanity because, although he was never charged, Exantus’ act of 

harming his daughter was criminal conduct. Therefore, it argued, it should be 

permitted to cross-examine Dr. Benedict about the information that formed the 

basis of his opinion. 

The defense responded that “criminal history” meant criminal convictions 

and therefore the information in the report was not inaccurate. And, further, 

 

112 RCr 9.22.

113 See Holt v. Commonwealth, 250 S.W.3d 647, 652 (Ky. 2008). 

114 English, 993 S.W.2d at 945. 

115 “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” KRE 404(b). 
44

that the Commonwealth should not be permitted to back door KRE 404(b) 

evidence through an expert witness regardless of whether a defendant is 

ultimately convicted as a result of that prior bad act. 

The trial court agreed that the evidence could not come in under KRE 

404(b), but it agreed with the Commonwealth’s argument that the instance was 

criminal conduct. It therefore ruled that the Commonwealth could crossexamine Dr. Benedict. Based on the trial court’s review of the report, it seemed 

to the trial court that the fact that Exantus had no criminal history was 

important to Dr. Benedict in forming his opinion on insanity. 

Later, during Dr. Benedict’s direct examination, defense counsel had the 

following exchange with Dr. Benedict:

Defense: In your report you state that Mr. Exantus 

appears to have no known criminal or psychiatric 

history. What do you mean by that?

Benedict: I believe that comes from the summary of 

my report, and what I mean is that I’m aware at the 

time of writing it that he has no criminal convictions, 

no involvement in the juvenile justice system, and no 

contact with psychiatrists for either assessment or 

treatment of any potential disorders.

Defense: You of course at that point knew Mr. 

Exantus smoked marijuana, right?

Benedict: Yes, I was aware of that. 

Defense: Which is a criminal activity in some states.

Benedict: Yes. 

Defense: But what you meant by criminal history was 

a charged offense.
45

Benedict: Right, I think what I said prior in the report 

was more accurate, I said there were no felony 

convictions or involvement in juvenile justice, so 

usually when I write there’s no criminal history, I 

mean there’s no criminal history of record. 

Defense: And after you completed that report, did you 

have occasion to review additional evidence and 

documentation that pertains to Mr. Exantus and this 

case?

Benedict: I did. 

Defense: In reviewing that information, did anything 

change regarding your opinion about the fact that Mr. 

Exantus has major mental illness or his ability to 

conform his conduct to the law?

Benedict: No. Nothing changed my opinion in that 

regard. 

At this point in the examination defense counsel requested a side bench. It 

renewed its motion to exclude the instance of conduct with Exantus’ daughter 

because it was now clear how Dr. Benedict defined criminal history and that 

the incident with Exantus’ daughter did not change his opinion on the issue of 

insanity. The Commonwealth responded that it is still allowed to challenge the 

basis for his opinions and that the defense could not prevent that by asking 

such broad questions. 

The trial court stated that it understood Dr. Benedict’s definition of 

criminal history. But, regardless, saying that could lead the jury to believe that 

Exantus had never done anything criminal in nature before. The trial court 

found that the prior act of violent conduct was relevant and again ruled that 

the Commonwealth could cross-examine Dr. Benedict. The defense did not 
46

request an admonition to the jury that the evidence should only be used “for 

the purpose of evaluating the validity and probative value of the expert's 

opinion[.]”116

After this ruling, the defense asked if Dr. Benedict was aware that 

Exantus shook one of his twin daughters as a baby resulting in physical injury 

to her. Dr. Benedict responded that he was aware of it, but it did not change 

his opinion. 

The entirety of the Commonwealth’s cross-examination on the subject 

went as follows:

CW: Doctor...I read this to be your conclusion in your 

report...and I want to break that sentence down into a 

couple of elements. The first is that you describe the 

defendant as an individual with no known criminal 

history, don’t you?

Benedict: Yes. 

CW: Doctor, you know by now that the defendant 

caused physical injury to his infant daughter in 

February 2010 by shaking her, don’t you?

Benedict: I’m aware of that, it’s my understanding 

that no criminal charges came from it, but I’m aware. 

CW: So if a person had been not charged or acquitted 

it would make no difference to you in a psychological 

workup?

Benedict: I’m sorry, what’s the question exactly?

CW: Well, I guess the problem is you kind of sound 

like a lawyer. Either a person has committed acts of 

violence or they haven’t. You’re saying that to you 

 

116 KRE 703(b). 
47

even if they’ve admitted it, it doesn’t matter if they 

weren’t charged or weren’t convicted. 

Benedict: No I think it’s a relevant piece of 

information. He was having problems controlling his 

frustration and anger. 

CW: Well, doctor, that’s the sentence in your report 

that states your opinion and you got it wrong 

regarding history of violence. 

Benedict: I think you have to understand the context 

in which I was writing this report. That statement was 

simply my saying I had no awareness of any criminal 

record, or that was my intended meaning. I’m not 

trying to emulate a lawyer, but I’m not aware that 

there was any prior criminal history. I think that 

statement still stands. 

CW: Okay, so the defendant didn’t disclose to you that 

prior act?

Benedict: No, sir. 

CW: Is it not part of your typical examination to ask 

that question?

Benedict: I did.

Exantus now argues before this Court that the admission of this 

evidence was reversible error because it was prior bad act evidence under KRE 

404(b) that was not otherwise admissible. KRE 404(b) directs that “[e]vidence 

of other crimes, wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.” The Commonwealth 

responds that it was properly admissible under KRE 703 to challenge the basis 

of Dr. Benedict’s opinion. For the reasons that follow, we agree with the 

Commonwealth. 

KRE 703 provides:
48

(a) The facts or data in the particular case upon which 

an expert bases an opinion or inference may be 

those perceived by or made known to the expert at 

or before the hearing. If of a type reasonably relied 

upon by experts in the particular field in forming 

opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence.

(b) If determined to be trustworthy, necessary to 

illuminate testimony, and unprivileged, facts or 

data relied upon by an expert pursuant to 

subdivision (a) may at the discretion of the court be 

disclosed to the jury even though such facts or data 

are not admissible in evidence. Upon request the 

court shall admonish the jury to use such facts or 

data only for the purpose of evaluating the validity 

and probative value of the expert's opinion or 

inference.

(c) Nothing in this rule is intended to limit the right of 

an opposing party to cross-examine an expert 

witness or to test the basis of an expert's opinion or 

inference.

Subsection (a), in relevant part, embodies the well-established rule that 

experts are permitted to base their opinions on facts and data that are not 

otherwise admissible in evidence, if they are of a type reasonably relied upon by 

other experts in their field. Stated differently, the facts and data that an expert 

relies upon in forming his or her opinion do not need to be admissible in order 

for the expert’s opinion itself to be admissible. Subsection (b) provides that if 

an expert relied on otherwise inadmissible evidence in forming their opinion, 

that evidence can come in as a means to challenge the validity and probative 

value of that expert’s opinion. However, that evidence may only be admitted if 

the trial court determines that the evidence was “trustworthy, necessary to 
49

illuminate testimony, and unprivileged.”117 Subsection (c) is self-explanatory: 

nothing in KRE 703(a) or (b) is meant to limit the ability of an opposing party to 

cross-examine or challenge the basis of an expert’s opinion. 

Though our case law regarding KRE 703 being invoked under these 

circumstances is scarce, we have previously upheld a trial court’s admission of 

what would otherwise be KRE 404(b) evidence to explain the basis of an 

expert’s opinion. In Port v. Commonwealth, the defendant was found guilty but 

mentally ill of murder, attempted murder, and first-degree wanton

endangerment after walking into a diner and firing two shots resulting in the 

death of one customer and the serious physical injury of another customer.118 

At trial, the defendant asserted an insanity defense.119 The defense’s 

expert, Dr. Deland, testified at trial that he believed the defendant was 

“suffering from paranoid schizophrenia at the time of the incident” and that he 

“lacked the substantial capacity to conform his conduct to the requirements of 

the law.”120 During cross-examination by the Commonwealth Dr. Deland 

acknowledged that one of the things he relied on in forming his opinion was the 

defendant’s history.121 The Commonwealth then elicited testimony from Dr. 

 

117 See also, Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011) (“KRE 

703(b) does allow evidence not otherwise admissible to come in ‘[i]f determined to be 

trustworthy, necessary to illuminate testimony, and unprivileged,’ to explain the basis 

of an expert's opinion.”).

118 906 S.W.2d 327, 329 (Ky. 1995).

119 Id. at 239-30.

120 Id. at 330.

121 Id. at 332.
50

Deland that “[a]t one point [the defendant] was accused of harassing his wife 

or ex-wife and a protection order had to be issued,” and that, shortly before the 

shooting, the defendant was involved in “some kind of trouble down in 

Tennessee that was equally irrational but fortunately not as tragic.”122 

On appeal to this Court, the defendant argued that those two pieces of 

evidence were improperly admitted in violation of KRE 404(b).123 We disagreed, 

and held:

the testimony is directed at understanding the basis of 

the expert's opinion. The expert explicitly indicated 

that his assessment of the defendant's mental state at 

the time of the crime was based upon the defendant's 

past history. As a result, we do not find this testimony 

constitutes evidence of other crimes as anticipated 

under KRE [404(b)]: ‘to show action in conformity 

therewith,’ rather it was evidence being used to 

understand a medical diagnosis.124

It is therefore clear under both the Rule itself and Port that otherwise 

inadmissible evidence under KRE 404(b) is admissible to challenge the basis of 

an expert’s opinion. 

However, before otherwise inadmissible evidence can come in the trial 

court must determine that the evidence was “trustworthy, necessary to 

illuminate testimony, and not privileged.” In Rabovsky v. Commonwealth, this 

Court held that it was error to allow an expert to read portions of otherwise 

inadmissible hospital records “without addressing the factual determinations 

 

122 Id. 

123 Id. 

124 Id. 
51

required by KRE 703(b),”

125 though it should be noted that the Rabovsky Court 

reversed the defendant’s conviction on a different issue.126

Though it could be argued that the trial court in this case made the 

requisite findings in an indirect manner,127 we think strict adherence to KRE 

703(b) is the better approach as it is the only safeguard provided in the rule

against the erroneous admission of otherwise inadmissible evidence. More 

specifically, when KRE 703 is compared to its federal counterpart, Fed. R. of 

Evid.

128 703, it is clear that KRE 703 tracks the language of Fed. R. Evid. 

703.

129 However, Fed. R. of Evid. 703 requires that otherwise inadmissible 

evidence may only be admitted “if [its] probative value in helping the jury 

evaluate the [Expert] opinion substantially outweighs [its] prejudicial effect.” 

This is a test that our General Assembly decided to forego when drafting KRE 

703 and, instead, chose a less stringent test: that the evidence be determined 

 

125 973 S.W.2d 6, 11 (Ky. 1998).

126 Id. at 10. (holding that “[s]ince the results of the analyses of the blood 

samples were introduced without establishing the integrity of the samples by showing 

the chain of custody, the judgment of conviction must be reversed for a new trial.”).

127 The fact that the incident occurred was corroborated by Exantus himself and 

his ex-wife, the mother of the child, which would indicate trustworthiness. The trial 

court admitted the evidence, in part, to clarify what Dr. Benedict meant by “no 

criminal history,” which would indicate that it was necessary to illuminate testimony. 

And, the trial court found that it was not a privileged information between Exantus 

and his ex-wife because Exantus told his fiancé Lauren that it occurred. 

128 Federal Rule of Evidence. 

129 Fed. R. of Evid. 703 reads: “An expert may base an opinion on facts or data 

in the case that the expert has been made aware of or personally observed. If experts 

in the particular field would reasonably rely on those kinds of facts or data in forming 

an opinion on the subject, they need not be admissible for the opinion to be admitted. 

But if the facts or data would otherwise be inadmissible, the proponent of the opinion 

may disclose them to the jury only if their probative value in helping the jury evaluate 

the opinion substantially outweighs their prejudicial effect.”
52

by the trial court to be “trustworthy, necessary to illuminate testimony, and 

unprivileged.” Though this test is a lower standard than that of the Federal 

Rule, it is still the only safeguard in KRE 703 against the erroneous admission 

of evidence and should therefore be strictly applied. 

Therefore, because the trial court did not make the necessary findings

under KRE 703(b), it did err. But we do not believe that error warrants 

reversal in this case. As we have previously indicated, using what would 

otherwise be inadmissible KRE 404(b) evidence to challenge the basis of an 

expert’s opinion is permissible. Here, the Commonwealth used the incident 

with Exantus’ daughter to challenge Dr. Benedict’s conclusion that Exantus 

had no prior criminal history, which was a piece of information upon which Dr. 

Benedict based his opinion that Exantus was legally insane. Therefore, the

cross-examination itself was permissible. More importantly, Exantus was 

found not guilty by reason of insanity of the capital offense of murder and the

aggravating offense of first-degree burglary. And, he was found guilty but 

mentally ill of three assaults. It is therefore clear that the evidence at issue did 

not have an unduly prejudicial effect on the jury, and his convictions should 

stand. 

We accordingly affirm but reiterate that trial courts should make the 

requisite factual findings under KRE 703(b) before admitting otherwise 

inadmissible evidence to challenge the basis of an expert’s opinion. 
53

II. CONCLUSION 

Based on the foregoing, we affirm. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Roy A. Durham, II

Assistant Public Advocate 

Department of Public Advocacy 

COUNSEL FOR APPELLEE:

Daniel Jay Cameron 

Attorney General of Kentucky 

Thomas A. Van De Rostyne 

Assistant Attorney General