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THE ACTION. 
RENDERED: AUGUST 24, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0135-MR

DAQUANTAE DELANE SMITH APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT

V. HONORABLE LUCY VANMETER, JUDGE 

NO. 19-CR-00377 & 20-CR-00097

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Daquantae Smith (Smith) was convicted in Fayette Circuit Court of two 

counts of being a convicted felon in possession of a handgun; two counts of 

assault in the fourth degree; two counts of resisting arrest; one count of 

criminal mischief in the third degree; and one count of disorderly conduct in 

the second degree. Smith was further found to be persistent felony offender 

(PFO) in the second degree. He now appeals his resulting twenty-year sentence 

as a matter of right.1 Smith argues that the circuit court erred by granting the

Commonwealth’s motion to join two separate criminal indictments against him 

for trial, and by allowing Smith’s charges of being a convicted felon in

1 Ky. Const. § 110.
2

possession of a handgun to be tried alongside his charges for assault in the 

fourth degree, domestic violence. After review, we hold that Smith was not 

unduly prejudiced by the joinder of his separate indictments for trial, and that 

his counsel invited any alleged error in trying his felon in possession of a 

handgun charges concomitantly with his domestic violence assault charges. 

We accordingly affirm. 

I. FACTS AND PROCEDURAL BACKGROUND 

In January 2019, Paula Woolridge (Paula), had recently started a

relationship with Smith. Paula was pregnant with his child, and although they 

were not living together, Smith was occasionally staying at Paula’s apartment. 

On the night of January 5 into the morning hours of January 6, Smith was at 

Paula’s apartment with his two young children. At around midnight that night,

Smith began going through Paula’s phone and accusing her of cheating on him

while questioning the unborn child’s paternity. He became angry and hit Paula 

in the face with a closed fist multiple times, resulting in Paula having a busted 

lip and a bruised and swollen eye. Smith also kicked Paula in the stomach and 

told her he would kick the baby out of her and threw several items, including a

lit candle, at her. Smith’s outbursts and abuses continued intermittently from 

midnight to sometime around 8 a.m. when Smith went to sleep. Paula 

retrieved her phone and escaped from the ground floor apartment through a 

window. Paula called a friend, who picked her up and convinced Paula to call 

the police.
3

When officers arrived at the apartment complex, they spoke with Paula in 

the parking lot. She explained what happened the night before and further told 

the officers that Smith, a convicted felon, had guns in her apartment. When 

the officers walked into Paula’s apartment, they saw Smith on a couch that was 

partially blocking the front door. They attempted to speak with him about the 

situation, but he refused to answer their questions. When the officers informed 

him that he was under arrest and stood him up, the officers saw a handgun on 

the couch where he had been sitting. Smith resisted the officers’ attempt to 

arrest him, but they were ultimately able to subdue and handcuff him after a 

brief struggle that began in the apartment and ended in the apartment 

building’s breezeway. After Smith was removed from the scene, Paula escorted 

the officers to a bedroom in the apartment and showed them three additional 

guns—two handguns and a shotgun—under a mattress. Three of the guns

found in the apartment had previously been reported stolen. 

In March 2019, Smith was indicted in Fayette Circuit Court, Third 

Division, for the events that occurred on January 6 in case number 19-CR-377. 

Initially, the charges in that indictment were the following counts:

Count 1: Convicted felon in possession of a handgun

Count 2: Convicted felon in possession of a firearm 

Counts 3-5: Receiving stolen property, firearm 

Count 6: Assault in the fourth degree, domestic violence, third or 

 greater offense within five years

Count 7: Resisting arrest

Count 8: Persistent felony offender in the second degree 
4

On April 19, a month after Smith was indicted, he was released on bond. In 

the months that followed, Smith and Paula continued to see each other, and on 

November 18, 2019, a second domestic violence incident occurred between 

them. Paula decided she wanted to end her relationship with Smith and went 

to his apartment with her three small children to retrieve her belongings. 

When Smith realized that Paula intended to leave him, he became angry and 

would not allow her to leave the apartment. As she was trying to leave, he 

slammed the front door on her forearm and tried to physically prevent her from 

leaving. She was eventually able to escape to a neighboring apartment and call 

911. By the time police arrived on scene minutes later, Smith was gone, and 

they were unable to arrest him that day. No firearms were found in Smith’s 

apartment that day, but the officers recovered a gun clip that was lying in a 

closet in plain view. 

On November 25, the police went back to Smith’s apartment to serve the 

arrest warrant issued in relation to the November 18 incident. When the 

officers knocked on his door, Smith came to the door in a t-shirt, nude from 

the waist down. He told the officers he needed to put pants on, so the officers 

followed him into the apartment. As Smith was walking towards the back of 

the apartment, he went into a bedroom and tried to quickly shut the door. 

Before he could shut the door, the officers saw a handgun on the bed in plain 

sight. The officers prevented him from shutting the door and told him that he 

was under arrest. After a struggle, the officers were able to get Smith into 

handcuffs and put pants on him. Smith resisted the officers the entire time 
5

they walked him to a cruiser and at one point “went dead weight” on them, 

requiring the officers to carry him. During the time the officers were moving 

Smith from his apartment to the cruiser, he began screaming for his mother 

and “causing a scene” by telling the officers they had no right to arrest him. 

Several people from the apartment complex started to form a crowd outside the 

complex in response to the commotion. As they were placing Smith into the 

cruiser, he threw his head back into the face of Officer James Chips (Officer 

Chips), which busted his lip. 

While sitting in the back of the cruiser, Smith was able to get his 

handcuffed hands from behind his back to the front of his body. He then 

began beating and kicking the cruiser’s window with such force the officers 

were afraid he was going to break it. They therefore removed him from the 

cruiser so they could place his ankles in shackles and re-cuff him behind his 

back before transporting him. After they placed shackles on him, they removed 

his handcuffs. Smith again resisted the officers and bit Officer Chips on the 

left forearm during the struggle.

Three months later, in February 2020, Smith was indicted in relation to 

the November 18 and November 25 incidents in Fayette Circuit Court, Eighth 

Division, in case number 20-CR-97. The charges in that indictment were as 

follows:

Count 1: Convicted felon in possession of a handgun

Count 2: Assault in the third degree of a police officer

Count 3: Criminal mischief in the second degree 
6

Count 4: Resisting arrest 

Count 5: Disorderly conduct in the first degree 

Count 6: Assault in the fourth degree, domestic violence, third or 

 greater offense within five years

Count 7: Unlawful imprisonment in the second degree

Count 8: Persistent felony offender in the second degree 

Two days after the 20-CR-97 indictment, the Commonwealth filed a 

combined motion to transfer 20-CR-97 from the Eighth Division to the Third 

Division of Fayette Circuit Court and to join 20-CR-97 with 19-CR-377 for trial. 

Smith’s defense counsel filed a response objecting to the joinder. During a

hearing on the Commonwealth’s motion, it argued that the indictments could 

be properly joined because the incidents that occurred on January 6, 2019, 

and November 18, 2019, respectively, were domestic violence episodes 

involving the same victim that occurred within a year of one another. And, that 

the charges that stemmed from Smith’s conduct on November 25, 2019, had a 

sufficient nexus to the November 18 incident because they occurred while the 

police were attempting to serve an arrest warrant in connection with the 

November 18 incident. Defense counsel argued that the January 6 incident 

should be tried separately from the two November incidents, primarily arguing 

that the two domestic violence episodes were distinguishable on their facts. 

Counsel argued that they occurred at two different locations, that different 

injuries were inflicted, and that they occurred eleven months apart from one 

another. 
7

Following the hearing on the Commonwealth’s motion and supplemental 

briefing from both parties, the circuit court granted the Commonwealth’s 

motion to transfer and join. The court found that the offenses that occurred on 

November 18 and November 25 were properly joined under 20-CR-97 because 

there was a sufficient nexus and logical relationship between them. 

Specifically, the November 25 offenses occurred while officers were serving an 

arrest warrant for the November 18 offenses. In addition, Smith’s actions in 

fleeing the scene on November 18 and resisting arrest on November 25 were 

relevant to demonstrate his consciousness of guilt. The court further found 

that 19-CR-377 and 20-CR-97 could be properly joined for trial because both 

cases involved offenses of the same or similar character and were committed 

against the same victim. The court found that Smith would not be unduly 

prejudiced by joining the two indictments because evidence of the January 6 

assault would be admissible during a trial for the November 18 assault 

pursuant to KRE2 404(b). Although the court acknowledged that it could not 

divine what Smith’s defense would be prior to trial, it agreed with the 

Commonwealth’s contention that evidence of the January 6 assault would be 

relevant to establish motive, opportunity, intent, plan, or absence of mistake or 

accident regarding the November 18 assault. 

Subsequently, the Commonwealth moved to amend or sever several 

charges from 19-CR-377 and 20-CR-97 as follows: (1) amend both fourth2 Kentucky Rule of Evidence. 
8

degree assault counts to no longer include the enhancement of being a third 

offense or greater within five years, making both of those counts a fourthdegree assault under KRS 508.030 rather than KRS 508.032;

3 (2) sever 

Counts 3-5, receiving stolen property, from 19-CR-377; (3) sever Count 2, 

third-degree assault (police officer), from 20-CR-97; (4) amend Count 3 from 

20-CR-97, second-degree criminal mischief, to third-degree criminal mischief; 

and (5) amend Count 5 from 20-CR-97, first-degree disorderly conduct, to 

second-degree disorderly conduct. There being no objection from the defense, 

the trial court accepted the modifications to the original indictments. 

Significantly, because of the foregoing changes the only felony offenses 

remaining in either indictment were the three counts of being a felon in 

possession of a handgun/firearm; all of the remaining charges were 

misdemeanors. During a pre-trial discussion between the trial court and 

parties regarding how the trial would be conducted, the following exchange 

occurred:

Court: But in the first phase when we’re having a trial on the 

assault fourth and resisting arrest, the convicted felon in 

possession of a firearm and a handgun, that’s a separate phase. 

CW: 4 Well, I’m proposing to try the misdemeanors with the felon in 

possession and I don’t think [defense counsel] has an objection to 

that. I told him that it’s his decision. 

Court: [Defense counsel]?

Defense: We don’t disagree. 

3 The Commonwealth acknowledged that it made an error in making the 

calculations required to enhance this offense under KRS 508.032(2). 

4 Counsel for the Commonwealth. 
9

Court: Okay, so the jury’s going to know he’s a convicted felon, 

and everybody is okay with that?

Defense: Well, I think a part of the guilt phase for being a 

convicted felon in possession of a handgun is the conviction. 

Because these assaults are misdemeanors, he’s already served well 

beyond the maximum he could ever get for a misdemeanor, so I 

don’t think there is any prejudice or harm in that regard for a jury 

to potentially max him out on a misdemeanor. 

Court: I see, so the only real punishment he could get in this case 

is on the convicted felon in possession of a handgun.

Defense: Yes.

Court: So it can’t harm him on the misdemeanors. 

Defense: I don’t believe so. 

With the foregoing changes made to the original indictments, Smith’s 

trial proceeded on the following counts: Count 1: Convicted felon in possession 

of a handgun (19-CR-377); Count 2: Convicted felon in possession of a firearm

(19-CR-377); Count 3: Convicted felon in possession of a firearm (20-CR-97); 

Count 4: Fourth-degree assault (19-CR-377); Count 5: Fourth-degree assault

(20-CR-97); Count 6: Second-degree unlawful imprisonment (20-CR-97); 

Count 7: Resisting arrest (19-CR-377); Count 8: Resisting arrest (20-CR-377); 

Count 9: Third-degree criminal mischief (20-CR-97); Count 10: Second-degree 

disorderly conduct (20-CR-97); and Count 11: Second-degree PFO. Because 

Smith requested that the charges of being a felon in possession of a 

handgun/firearm be tried during the guilt phase of his trial, the jury was 

informed that he was a convicted felon but was not told what specific charges 

he was previously convicted of. 
10

Smith’s defense primarily focused on refuting the counts of being a felon 

in possession of a handgun/firearm. He claimed that none of the guns found 

in Paula’s apartment on January 6 were his. He further argued that Paula did 

not escape through a window that day, but rather went out the front door after 

planting the pistol found on the couch beneath Smith. The defense highlighted 

that the guns were not tested for DNA, and no useable fingerprints were 

recovered from them. Counsel did not provide an explanation as to how Paula 

could have planted the gun found in Smith’s apartment on November 25, as 

she was not present in the apartment that day. 

As for the two counts of assault in the fourth degree, the defense 

conceded that the jury would find Smith guilty of the January 6 incident; the 

Commonwealth played an arresting officer’s body camera footage of Smith 

admitting to causing Paula’s injuries on that date. However, the defense 

asserted that Paula lied about the November 18 assault, noting that the 

paramedic that examined her noted no abnormalities to her arm. 

The jury ultimately found Smith guilty on all counts except for Count 2 

(convicted felon in possession of a firearm under 19-CR-377) and Count 6 

(unlawful imprisonment under 20-CR-97). The jury recommended the 

minimum five-year sentence for both Count 1, felon in possession of a 

handgun, and Count 3, felon in possession of a firearm. Following the guilt 

phase, the jury found Smith guilty of being a second-degree PFO which 

enhanced his sentences for Count 1 and Count 3 to ten years each. In
11

accordance with KRS 533.060(3), the court ruled that those sentences had to 

run consecutively for a total of twenty years.5 

Additional facts are discussed below as necessary. 

II. ANALYSIS

Smith raises two alleged errors before this Court. He first argues that 

the trial court erred by granting the Commonwealth’s motion to join 19-CR-377 

and 20-CR-97 for trial. Second, he asserts that the trial court erred by not sua 

sponte severing his charges of being a convicted felon in possession of a 

handgun and firearm from his other charges for the purposes of trial. Finding 

no error, we affirm. 

A. The trial court did not abuse its discretion by granting the 

Commonwealth’s motion to join 19-CR-377 and 20-CR-97 for trial. 

Smith first argues that the trial court erred by granting the 

Commonwealth’s motion to join 19-CR-377 and 20-CR-97 for trial.6 Trial 

courts have broad discretion when ruling on a motion to join separate 

indictments for the purposes of trial, and this Court will not disturb such a 

ruling absent an abuse of discretion.7 “The test for abuse of discretion is 

5 The jury’s recommendation for the remaining misdemeanor convictions were 

as follows: Count 4: twelve months, Count 5: ninety days, Count 7: ninety days, Count 

8: six months, Count 9: $250 fine, and Count 10: one day. 

6 This issue was preserved for our review by defense counsel’s written and 

verbal objections to the Commonwealth’s motion. See Kentucky Rule of Criminal 

Procedure (RCr) 9.22. 

7 See, e.g., Garrett v. Commonwealth, 534 S.W.3d 217, 223 (Ky. 2017).
12

whether the trial judge's decision was arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.”8 

The statutes that govern this issue are RCr 9.12, RCr 6.18, and RCr 

8.31. RCr 9.12 provides that a court may order two or more indictments to be 

tried together “if the offenses . . . could have been joined in a single 

indictment.” In turn, RCr 6.18 states that two or more offenses “may be 

charged in the same indictment . . . if the offenses are of the same or similar 

character or are based on the same acts or transactions connected together or 

constituting parts of a common scheme or plan.” Additionally, this Court has 

stated that 

to justify joining separate offenses in a single trial, there must be a 

sufficient nexus between or among them. The required nexus 

must arise from a logical relationship between the crimes, some 

indication that they arose one from the other or otherwise in the 

course of a single act or transaction, or that they both arose as 

parts of a common scheme or plan.9 

RCr 8.31 is the antithesis of RCr 9.12 and RCr 6.18 in that it mandates 

severance of charges that are otherwise properly joined “[i]f it appears that a 

defendant or the Commonwealth is or will be prejudiced by a joinder of 

offenses[.]” In this vein, 

[b]ecause a certain degree of prejudice is inherent in the joinder of 

offenses, as it is in any indictment, this Court has explained that 

the “prejudice” calling for severance or other relief under [RCr 

8.31]10 is “undue prejudice,” i.e., prejudice that goes beyond the 

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

9 Cherry v. Commonwealth, 458 S.W.3d 787, 794 (Ky. 2015) (internal citations 

and quotation marks omitted). 

10 RCr 8.31 was formerly codified as RCr 9.16.
13

inherent prejudice to that which is unnecessary and 

unreasonable.11

Smith argues before this Court that the two indictments should not have 

been tried together because the January 6 and November 18 assaults were not 

of the same or similar character. In doing so, he attempts to distinguish the 

two assaults on their facts. He argues that the motive for the January 6 attack 

was a suspicion that Paula was cheating on him, while the November 18 attack 

was motivated by Paula’s desire to leave the relationship; that the attacks took 

place almost eleven months apart; and that the injuries inflicted to Paula were 

different. 

We disagree and hold that the circuit court did not abuse its discretion 

by finding that the offenses committed on January 6 and November 18 were 

properly joined under RCr 6.18 and RCr 9.12. The January 6 and November 

18 assaults were both domestic violence12 assaults committed against the 

same victim, within a residence, and in the presence of small children. 

Additionally, during both assaults Smith attempted to prevent Paula from 

leaving, and following both assaults Paula fled to a different location before 

calling for help. 

11 Whaley v. Commonwealth, 567 S.W.3d 576, 583 (Ky. 2019) (quoting Peacher 

v. Commonwealth, 391 S.W.3d 821, 838 (Ky. 2013)). 

12 KRS 403.720(2)(a) defines domestic violence and abuse, in relevant part, as 

“[p]hysical injury, serious physical injury or the infliction of fear of imminent physical 

injury, serious physical injury, sexual abuse, strangulation, or assault between family 

members or members of an unmarried couple[.]”
14

Notwithstanding our agreement with the trial court, even assuming 

arguendo that the trial court abused its discretion by joining Smith’s separate 

indictments for trial, he is not entitled to relief absent a showing that he was 

unduly prejudiced by said joinder.13 “The primary test for determining if the 

consolidation of different crimes for a single trial creates undue prejudice is 

whether evidence necessary to prove each offense would have been admissible 

in a separate trial of the other.”14 KRE 404(b) is the guiding statute for this 

inquiry, though this Court has previously stated that a failure to sever in 

violation of KRE 404(b) may still be considered harmless error if the evidence of 

guilt is otherwise overwhelming.15 

KRE 404(b) directs that evidence of a defendant’s other crimes, wrongs, 

or acts are inadmissible to prove a defendant’s character “in order to show 

action in conformity therewith.” However, evidence of other crimes, wrongs, or 

acts may be admissible

13 Montgomery v. Commonwealth, 320 S.W.3d 28, 35–36 (Ky. 2010) (“Even 

assuming the trial court abused its discretion by joining those offenses, Montgomery is 

not entitled to relief unless he was prejudiced by the improper joinder.”). 

14 Elam v. Commonwealth, 500 S.W.3d 818, 824 (Ky. 2016).

15 Peacher, 391 S.W.3d at 839 (“[W]hile we have focused on mutual 

admissibility as an important factor in the prejudice analysis, mutual admissibility is 

not, by itself, determinative. United States v. Cardwell, 433 F.3d 378 (4th Cir.2005). 

Where there is a lack of mutual admissibility, it could be that the trial court's having 

admonished the jury to compartmentalize the evidence sufficed to neutralize the KRE 

404(b) concerns, id., or, even absent such an admonition, it could be that the failure 

to sever, in effect a KRE 404(b) error, was harmless under our harmless error 

standards. See Wiley v. Commonwealth, 348 S.W.3d 570 (Ky.2010) (finding KRE 

404(b) error harmless in light of overwhelming admissible evidence supporting the 

conviction)[.]”). 
15

(1) If offered for some other purpose, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to 

the case that separation of the two (2) could not be 

accomplished without serious adverse effect on the offering 

party.16

With this standard in mind, we hold that the trial court did not abuse its 

discretion by finding that evidence of the January 6 assault would have been 

admissible during a trial for the November 18 assault. This Court has stated 

numerous times that “evidence of similar acts perpetrated against the same 

victim are almost always admissible” under KRE 404(b).

17 Moreover, at trial 

Smith conceded he was guilty of the January 6 assault but argued that Paula 

fabricated the November 18 assault. Evidence of the January 6 assault would 

have therefore been admissible at a trial for the November 18 assault to refute 

Smith’s defense that Paula lied about it. 

As for the weapons charges, Smith denied owning any of the guns found 

in Paula’s apartment on January 6 and argued to the jury that she planted 

them to frame him. Consequently, evidence that police recovered a gun from 

his apartment on November 25 would have been admissible at a trial for the 

January 6 weapons offenses: Paula was not present in Smith’s apartment on 

November 25 and the gun was on his bed in plain sight. Evidence of the gun 

found on November 25 was therefore relevant and probative to prove that Paula 

16 KRE 404(b)(1)-(2). 

17 See, e.g., Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008). 
16

did not frame Smith on January 6 and that the guns found on both dates did 

in fact belong to him. 

Tellingly, Smith’s argument to this Court fails to articulate how the 

joinder of his indictments resulted in undue prejudice to him. We also note 

that the jury found him not guilty of one count of being a convicted felon in 

possession of a firearm and one count of unlawful imprisonment. And, while 

the jury found Smith guilty of the two remaining weapons offenses, it initially 

recommended the minimum sentence of five years for each of those counts. 

Based on the foregoing, we hold that no undue prejudice resulted from joining 

19-CR-377 and 20-CR-97 and affirm. 

B. Smith invited any error committed in trying his charges of felon in 

possession of a handgun and felon in possession of a firearm alongside 

his domestic violence assault charges. 

For his second assertion of error, Smith contends that the trial court 

reversibly erred by allowing his three charges of being a convicted felon in 

possession of a handgun/firearm to be tried in a single guilt phase alongside 

his two charges for assault in the fourth degree, domestic violence. He argues 

under Wallace v. Commonwealth18 and Hubbard v. Commonwealth,

19 that the 

trial court was required to try his weapons charges separately. He contends 

that even though his trial counsel requested to try the weapons charges in the 

same guilt phase as his assault charges, the trial court was required by RCr 

8.31 to sua sponte reject defense counsel’s decision and try the weapons 

18 478 S.W.3d 291 (Ky. 2015).

19 633 S.W.2d 67 (Ky. 1982).
17

charges separately. While the respective holdings in Hubbard and Wallace 

remain sound, we hold that under the particular facts of this case Smith’s 

counsel waived his ability to raise this issue on appeal by inviting this alleged 

error.

In Hubbard, the defendant was charged with burglary in the third degree, 

theft by unlawful taking, felon in possession of a handgun, and being a firstdegree PFO.20 Prior to trial, the defendant moved to have the charge of felon in 

possession of a handgun severed from the other charges, but the trial court 

denied the motion.

21 During the trial’s guilt phase, the Commonwealth 

presented evidence that the defendant had been previously convicted of thirddegree burglary twice.

22 He was found guilty on all charges except for the 

charge of being a felon in possession of a handgun.23 This Court reversed and 

remanded for a new trial.24 It reasoned that 

[RCr 8.31] provides that if it appears that either the

Commonwealth or the defendant will be prejudiced by a joint trial 

of separate offenses they shall be tried separately. This case is a 

perfect example of when a severance should be granted. The twostage proceeding in persistent felony-offender cases was designed 

for the specific purpose of obviating the prejudice that necessarily 

results from a jury's knowledge of previous convictions while it is 

weighing the guilt or innocence of a defendant on another charge. 

Cf. KRS 532.080(1), enacted in 1974. Such evidence is no longer 

relevant or competent during the guilt phase of a bifurcated trial 

unless, of course, it should become relevant for impeachment 

purposes. Here the jury acquitted Hubbard of possessing the gun, 

20 Id. at 67.

21 Id. at 68 

22 Id. 

23 Id. at 67.

24 Id. at 68.
18

but in considering his guilt or innocence of the burglary and theft 

the jurors had been made aware of his previous record.25

Several decades after Hubbard, this Court rendered Wallace. In that 

case, the defendant used a handgun during the commission of a series of 

robberies and was charged with five counts of first-degree robbery and one 

count of being a felon in possession of a handgun.26 The trial court entered a 

pre-trial order severing the felon in possession of a handgun charge from the 

other charges.27 But, instead of holding a separate trial for the handgun 

offense, the trial court opted to “trifurcate” the trial.28 During the first phase, 

the jury considered evidence solely concerning the robbery charges.29 In the 

second phase it heard evidence establishing that the defendant was a convicted 

felon in possession of a handgun, and the final step was a consolidated 

sentencing phase.30

On appeal, the defendant argued under Hubbard and RCr 8.31 that the 

trial court abused its discretion by not ordering a separate trial for the felon in 

possession of a handgun charge.

31 As a matter of first impression, this Court 

approved of the trifurcated proceedings.

32 The Wallace Court acknowledged 

25 Id.

26 Id. at 293-94.

27 Id. 

28 Id. 

29 Id. 

30 Id. 

31 Id. at 302.

32 Id. 
19

that a defendant would be prejudiced if, during the second phase of a 

trifurcated trial, the jury heard evidence of a felon in possession of a handgun 

charge that was not mutually admissible during a trial for the charges 

adjudicated during the first phase.

33 However, because Wallace had used a 

handgun during the commission of the underlying offenses, that evidence was 

inextricably intertwined with the evidence of the robberies and no prejudice 

resulted.

34 The Court accordingly held that 

trying the robbery charges and severed charge of possession of a 

handgun by a convicted felon in one trial with a bifurcated guilt 

phase followed by a consolidated penalty phase is not an inherently

inappropriate means of complying with the purposes and 

requirements of Criminal Rule [8.31] and Hubbard[.] This 

procedure is only inappropriate if separate trials are necessarily 

required to avoid prejudice reciprocating between otherwise 

properly joined separate counts. Clearly, when the handgun is 

used in the underlying offense, there can be no such 

reciprocation.35

To summarize, Hubbard held that RCr 8.31 required a charge of being a 

felon in possession of a handgun/firearm to be severed from other criminal 

charges. And Wallace held that a severed felon in possession of a

handgun/firearm charge could be tried using a trifurcated trial instead of a 

separate trial if evidence of the handgun/firearm offense presented during the 

second phase would have been admissible during a trial on the offenses 

adjudicated in the first phase. Wallace is therefore inapplicable: Smith’s trial 

33 Id. at 304.

34 Id. 

35 Id. at 306.
20

was not trifurcated and the question before us is not whether the trial court 

abused its discretion by holding a trifurcated trial. 

Instead, the issue is whether this alleged error is properly before us 

based on the equally well-established rule that “one cannot commit to an act. . 

. and later complain on appeal that the trial court erred to his detriment,” or, 

stated differently, that “[a] defendant cannot complain on appeal of alleged 

errors invited or induced by himself[.]”36 Hubbard is accordingly not dispositive

either because the defendant in that case requested that the court sever the 

count of being a felon in possession of a handgun and argued that he would 

suffer prejudice if his motion was denied.37

In contrast, Smith’s trial counsel without question invited the alleged 

error that Smith now argues entitles him to reversal and a new trial. During a

pre-trial discussion between the court and the parties regarding how the trial 

would proceed, the trial court stated its intention to try the three charges of 

being a felon in possession of a handgun/firearm using a bifurcated guilt 

phase like the one approved of by Wallace. The Commonwealth replied that it 

was proposing to try all the counts, except the PFO, in a single guilt phase but 

conceded it would be defense counsel’s decision. Defense counsel not only 

36 Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006). See also Tackett v. 

Commonwealth, 445 S.W.3d 20 (Ky. 2014) (“[A] party cannot ask a trial court to do 

something and, when the court does it, complain on appeal that the court erred.”);

Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011) (“Generally, a party is 

estopped from asserting an invited error on appeal.”).

37 Hubbard, 633 S.W.2d at 68.
21

stated he had no objection, but then stated twice that his client would not be 

prejudiced by a single guilt phase trial:

Court: Okay, so the jury’s going to know he’s a convicted felon, 

and everybody is okay with that?

Defense: Well I think a part of the guilt phase for being a convicted 

felon in possession of a handgun is the conviction. Because these 

assaults are misdemeanors, he’s already served well beyond the 

maximum he could ever get for a misdemeanor, so I don’t think 

there is any prejudice or harm in that regard for a jury to 

potentially max him out on a misdemeanor. 

Court: I see, so the only real punishment he could get in this case 

is on the convicted felon in possession of a handgun.

Defense: Yes.

Court: So it can’t harm him on the misdemeanors. 

Defense: I don’t believe so.

“Invited errors that amount to a waiver, i.e., invitations that reflect the party's 

knowing relinquishment of a right, are not subject to appellate review.”

38 

Smith’s counsel rejected the trial court’s suggestion to try the weapons charges 

separately. In addition, the defense used the evidence that Smith was a 

convicted felon to bolster its defense that Paula framed him. Smith argued that 

Paula knew Smith was not allowed to have handguns or firearms and therefore 

lied to the police and told them that the guns in her apartment were his so that 

he would be arrested. Based on the foregoing, we hold that Smith invited the 

alleged error that the trial court erred by trying his felon in possession of a 

38 Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011).
22

handgun/firearm charges alongside his two charges of fourth-degree assault. 

The issue is therefore not properly before us, and we decline to review it.39

III. CONCLUSION

For the foregoing reasons, we affirm. 

Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ., sitting. All 

concur. VanMeter, C.J., not sitting. 

COUNSEL FOR APPELLANT:

Molly Mattingly

Kathleen Kallaher Schmidt 

Department of Public Advocacy 

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky 

Todd Dryden Ferguson 

Robert Lee Baldridge 

Perry Thomas Ryan

Assistant Attorney General 

39 Because this error was invited, palpable error review under RCr 10.26 is not 

appropriate. See id. at 439.