RENDERED: SEPTEMBER 1, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0982-MR

RANDY ROGERS APPELLANT

APPEAL FROM LOGAN CIRCUIT COURT

v. HONORABLE JOE W. HENDRICKS, JR., JUDGE

ACTION NO. 21-CR-00348

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, DIXON, AND ECKERLE, JUDGES.

ECKERLE, JUDGE: Appellant, Randy Rogers (Appellant) entered an 

unconditional, guilty plea to multiple crimes. The Trial Court sentenced him 

according to the terms of the plea agreement. He appeals as a matter of right,

raising an unpreserved allegation of double jeopardy. For the reasons announced 

below, we affirm. 
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BACKGROUND

The facts of the case are not readily developed because Rogers waived 

his constitutional right to a jury trial and entered an unconditional guilty plea. 

What can be pieced together from the sparse record is a bizarre series of violent 

and potentially deadly actions committed in succession on July 16, 2021. It 

appears that Rogers, while intoxicated and carrying a machete, first entered a 

residence and held the machete to a woman’s throat. She pushed Rogers and the 

machete away, and Rogers left. Rogers returned moments later; this time he armed 

himself with a smaller knife and forcibly entered the residence. He pointed the 

knife at a man in the residence and asked if the man wanted to die. Rogers then 

went outside and, now sporting brass knuckles, he punched a third victim multiple 

times, resulting in no visible injuries. Police were dispatched. When the police 

officers arrived, Rogers fled in a motor vehicle, and police pursued him until he 

wrecked his car. A subsequent, breath test revealed a blood alcohol content of 

0.134, well above the legal limit for motor vehicle operation.

The Logan County Grand Jury subsequently indicted Rogers for 21 crimes: 

two counts of burglary, first degree; two counts of assault, fourth degree; five 

counts of wanton endangerment, first degree; one count of disorderly conduct, 

second degree; one count of fleeing or evading police, first degree; four counts of 

disregarding stop sign; two counts of disregarding traffic control device, traffic 
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light; one count of reckless driving; one count of improper passing; one count of 

operating motor vehicle under the influence of alcohol, first offense; and one count 

of being a first-degree persistent felony offender. 

Rogers subsequently accepted the Commonwealth’s offer on a plea of 

guilty. Pursuant to the terms of the unconditional plea agreement, Rogers would 

receive a total sentence of imprisonment for 17 years, 12 of which would be 

subject to 85% parole eligibility, and five of which would be subject to 20% parole 

eligibility. Pursuant to the agreement, Rogers entered guilty pleas to the following 

charges: two counts of burglary, first degree; two counts of assault, fourth degree; 

five counts of wanton endangerment, first degree; one count of disorderly conduct, 

second degree; one count of fleeing or evading police, first degree; and one count 

of operating a motor vehicle under influence of alcohol, first offense. The 

remaining charges, including the first-degree persistent felony offender charge, 

were dismissed by agreement. 

During sentencing, Rogers gave summary details about the crimes he 

committed against the man and woman in the residence, but he gave no additional 

guidance about the victim of the attack with brass knuckles. The Trial Court 

accepted the guilty pleas and sentenced Rogers in accordance with the agreement. 

Rogers then timely appealed the unconditional plea.
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ANALYSIS

Rogers raises one claim on appeal, relating solely to charges 

stemming from the fight with brass knuckles. He admits his sole issue on appeal is 

not preserved. He alleges that one of his assault, fourth degree charges should be 

dismissed as it violates the constitutional and statutory proscriptions against double 

jeopardy when combined with one of the wanton endangerment, first degree 

counts. Rogers claims that convictions for both charges require inconsistent 

findings of fact, as Rogers believes the facts show there was no injury to the 

victim. 

The specific indictments underlying this alleged error read as follows:

COUNT 6

That on or about July 16, 2021, in Logan County, 

Kentucky, the above-named Defendant committed the 

offense of Wanton Endangerment, 1st Degree, when 

under circumstances manifesting extreme indifference to 

the value of human life, he wantonly engaged in conduct 

which created a substantial danger of death or serious 

physical injury to David Taylor, while intoxicated, he 

physically assaulted Taylor while wearing brass 

knuckles.

. . . .

COUNT 8

That on or about July 16, 2021, in Logan County, 

Kentucky, the above-named Defendant, committed the 
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offense of Assault, 4th Degree, No Visible Injury, when 

he intentionally struck David Taylor in the head.

Rogers avers that these charges stemmed from the following 

allegations in the Uniform Citation, “A third victim was allegedly struck outside of 

the residence by the suspect multiple times with a set of brass knuckles which 

caused no known injury to this particular victim.” 

We briefly address preservation. Rogers claims both constitutional 

and statutory proscriptions against double jeopardy were violated. Provided there 

was no express waiver of the constitutional proscriptions against double jeopardy

in exchange for some benefit, the constitutional claim may be raised even absent 

preservation below. See Kiper v. Commonwealth, 399 S.W.3d 736, 740 (Ky. 

2012), and Henry v. Commonwealth, 275 S.W.3d 194, 202 (Ky. 2008), overruled 

on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010). The 

statutory prohibition against double jeopardy, though, can only be reviewed under 

the palpable error rule of RCr1 10.26, as it was not raised below. Kiper, supra. 

Under the palpable error standard “reversal is warranted if a manifest injustice has 

resulted from the error, which requires a showing of the probability of a different 

result or error so fundamental as to threaten a defendant’s entitlement to due 

1 Kentucky Rules of Criminal Procedure.
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process of law.” McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012) 

(internal quotation marks and citations omitted). 

Regarding the constitutional claims, Rogers’ claims are meritless. It 

is not double jeopardy to be convicted of fourth-degree assault and first-degree 

wanton endangerment, as each offense requires proof of an element that the other 

does not. Matthews v. Commonwealth, 44 S.W.3d 361, 365 (Ky. 2001) (citing 

Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996)). 

Regarding the statutory claim, Rogers argues convictions for both 

charges violated the statutory proscription against double jeopardy, namely 

inconsistent factual findings. This argument is made pursuant to KRS2

505.020(1)(b).

3

 Specifically, Rogers claims that the Commonwealth was required

to prove that no physical injury occurred with the wanton endangerment charge 

and that physical injury did result from the assault charge. And, Rogers claims, the 

2 Kentucky Revised Statutes.

3 That statute provides:

(1) When a single course of conduct of a defendant may establish the commission 

of more than one (1) offense, he may be prosecuted for each such offense. He 

may not, however, be convicted of more than one (1) offense when:

. . .

(b) Inconsistent findings of fact are required to establish the 

commission of the offenses[.]
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Uniform Citation states “no known injury” occurred; thus, he assumes, no injury 

occurred. 

That assumption ignores the indictment, which states “No Visible 

Injury” occurred, but not that no injury at all occurred. To establish physical 

injury, the Commonwealth need only prove that the victim suffered “substantial 

physical pain or any impairment of physical condition[.]” KRS 500.080(13).4 

This definition does not require proof of a visible injury. See, e.g., Hubbard v. 

Commonwealth, 932 S.W.2d 381 (Ky. App. 1996) (pain in a hip sufficient to 

establish physical injury). Being hit in the head with brass knuckles could cause a 

myriad of conditions that result in substantial, physical pain or impairment of 

physical condition with no visible injuries; concussions, headaches, and 

impairments to vision are just three possibilities. The record here is not clear 

enough to rule out any of these conclusions without additional, fact finding. 

Henry, 275 S.W.3d at 202 (“[W]here, as here, the double jeopardy violation is 

clear from the record without the need for additional fact finding, a guilty plea does 

not preclude subsequent relief.”).

Likewise, the record supports the claim that at least one of the 

“multiple” punches could have resulted in no physical injury, thus supporting the 

4 This definition of “physical injury” was renumbered to KRS 500.080(16) subsequent to the 

commission of Rogers’ crimes.
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wanton endangerment charge. An intoxicated person wantonly flailing a brassknuckle-clad fist at another person can constitute circumstances manifesting an 

extreme indifference to human life and create a substantial danger of death or 

serious, physical injury to the recipient of said brass-clad fist, regardless of 

whether the blow results in any physical injury. 

Accordingly, the record is not clear enough without additional, factual 

findings to establish a statutory double jeopardy violation. In fact, quite the 

opposite is true: the indictment, when read in concert with the Uniform Citation,

supports separate and consistent findings of fact that would establish the 

commission of both offenses. Moreover, Rogers waived any right to additional, 

fact findings by entering an unconditional, guilty plea. Thus, we find no KRS 

505.020(1)(b) double jeopardy violation that is palpable. There being no violation 

of Rogers’ state and federal constitutional protections against double jeopardy, and 

no palpable violation of Rogers’ statutory double jeopardy protection, we AFFIRM 

the judgment and sentence.

ALL CONCUR. 
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BRIEFS FOR APPELLANT:

Robert C. Yang

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General

Frankfort, Kentucky