# IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOTTOBEPUBLISHED." PURSUANT TO THERULES OF CIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOTTOBE PUBLISHED AND SHALLNOTBE CITED ORUSED AS BINDINGPRECEDENTINANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITEDFOR CONSIDERATIONBY THE COURTIFTHEREIS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THEISSUE BEFORETHE COURT. OPINIONS CITED FORCONSIDERATION BY THE COURT SHALLBE SET OUTAS AN UNPUBLISHED DECISIONINTHEFILEDDOCUMENTAND A COPY OFTHE ENTIREDECISION SHALLBE TENDERED ALONGWITHTHE DOCUMENT TOTHE COURTAND ALLPARTIES TOTHE ACTION.RENDERED: MARCH 22, 2018 NOT TO BE PUBLISHED

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ZACHARY ALLEN GROSS APPELLANT



## v. ON APPEAL FROM BOONE CIRCUIT COURT HONORABLE RICHARD BRUEGGEMANN, JUDGE CASE NO. 15-CR-00849
COMMONWEALTH OF KENTUCKY

MEMORANDUM OPINION OF THE COURT AFFIRMING APPELLEE

ABoone Countyjuryfound ZacharyAllen Gross guilty ofassault in the first degree and Gross's punishmentwas fixed at 20 years' imprisonment. On appeal, Gross asserts the following four errors: (1) the trial court erred in allowing impermissible character and prior bad acts evidence; (2) the trial court allowed improper expert testimony; (3) the trial**cou~t** barred defense counsel from effective cro'ss-examination; and (4) the trial court denied defense's request for 

### ari imperfect self-defensejuryinstruction. After a thorough review ofthe record, we affirm. I. BACKGROUND Gross had a romantic relationship with Marilyn Stanley. On September 14, 2015, Gross sent Stanley over 100 text messages and called her 41 times,suspecting infidelity_on the**p~rt** ofStanley. Gross picked Stanleyup from her mother's home and the two stopped to·get lunch before going to Gross's trailer. According to Stanley, while eating their lunch, Gross punched Stanley twice on ' ' the left side ofher face. Stanleytried to leave but Gross grabbed her around the waist and carried her intothe bedroom.**Wh~le** being carried to the bedroom, Stanleypulled a knife from her pocket. Stanley testified she carried the knife because she was afraid ofGross.

, Gross put Stanley on the floor in his bedroom, straddled her, and held her hands down. Gross's pit bull, Capone, began biting at Stanley's head while Gross told Stanley to drop the knife.· Capone bit Stanley's ear, causing her to drop the knife, which Gross picked up. Stanley grabbed herhead anq hair and testified that her hair was stili attached to her head at that point. Stanley testified that she next remembered Gross kneeling in front ofher saying, "Look atyou. You're bald. Now nobody's going to wantyou. Go look atyourselfin the mirror." A significant portion ofStanley's scalp had·been removed during the altercation. Stanleywent to the bathroom and sat on the toilet but did not look in· the mirror. When she returned to the bedroom, Gross made Stanleylie
on the**fl~or** where he storriped on her ribcage twice. Gross grabbed Stanley's**~calp** and hair and putit in a plastic Kroger bag. Stanleylost 40 percent ofher scrup and she·will never be able to regrow hair where the scalp is missing. Stanleytestified that she asked Gross to call 911 but Gross refused, claiming the police would take his dog away. ,Gross drove
' \ Stanley towards her mother's house, dr,opping her offdown the street. Wheri ' 2Stanley walked towards her mother's house, she called for help and her mother called an ambulance. Sta,nley had multiple surgeries to her scalp and ears and now must wear
a hat in public. Stanley also suffered broken ribs and had an artery cut in her right arm causing permanent muscular degeneration. Stanley did not tell detectives at the hospital that Gross used the knife on her or that he
r • • / commanded Capone to· attack her. Gross recalled a different set ofevents. According to Gross, the two accused each other ofinfidelity at the trailer. Stanley pulled a knife on Gross, ,and he pinned her against the wall to keep her from swinging the knife. Gross punched Stanley in the face and Capone grabbed at Stanley's leg. Gross tried to_kick Capone away, but Stanley ran to the bedroom and Capone followed her. When Gross entered the bedroom, Stanleywas already on the floor with ' Capone attacking her head. Gross tried to shield·stanley from the dog, and when Stanley finally dropped.her knife, Gross put the dog in the bedroom closet. Gross saw Stanley's scalp was torn offand told herthat she needed to go to the hospital. Stanley did not want to get the police involved because she
was afraid they would take the dog. Gross carried Stanley into the bathroom and sather on the toilet. Gross tried to call 911, but Stanleyfold him.not to. Capone got out ofthe closet and**~alked** into the bathroom. Gross tried to kick him away, but Stanley said not to discipline the dog. Gross said he neverused the knife nor commanded Capone to attack Stanley.
3At trial, Dr. William John Kitzmiller offered expert testimonyfor the Commonwealth. Dr. Kitzmiller treated Stanley's scalp wound and he testified to the severity ofthe injury and the multiple surgeries endurec;l by Stanley. He testified that the injury to Stanley's scalp was**mo~e** consistentwith an injury caused by a sharp object than a dog bite. Thejury determined that Gross committed first-degree assault and recommended a sentence oftwentyyears' imprisonment. The trial court sentenced Gross according to thejury's recommendation. Gross now appeals
as a matter ofright. Additional facts shall be set forth below as necessary. II. ANALYSIS
I A. The trial court properly admitted prior bad acts evidence. Gross's first allegation oferror involves the trial court allowing the Commonwealth to presentpriorbad acts evidence via text messages, Facebook messages, and witness testimony. Gross properly**pre~erved** the claim oferror regarding the text and Facebook messages and Stanley's testimony. Evidence ofother crimes, wrongs, or acts 

### is not admissible fo prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) ifoffered for some other purpose, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity,. or absence;ofmistake or**accid~nt;** 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. Kentucky Rule ofEvidence (KRE) 404(b). "The trialjudge has sufficient**discreti~p.** to admit evidence of uncharged bad acts ifit is relevant, probative and the potential for
4prejudice does not outweigh the probative value ofsuch evidence." 

### Parkerv. Commonwealth, 952 S.W.2d209, 213 (Ky. 1997). This Court has held that evidence ofprior, similar acts ofabuse againstthe same victim ofthe alleged crime is "almost always admissible" under KRE 404(b) to prove the defendant's "intent, plan, or absence ofmistake or accident." 

### Dant v. Commonwealth, 258 S.W.3d 12, 19 (Ky. 2008) (citing 

### Noel v. Commonwealth, 76 S.W.3d923, 931 (Ky. 2002)). The standard ofreview ofa trial court's evidentiaryrulings is abuse ofdiscretion. 

### Clark 

## v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse ofdiscretion is whether
.. the trialjudge's decision was arbitrary, unreasonable, unfair, orunsupported by sound

. ( legal principles." 

### Goodyear Tire & 

### RubberCo. 

### v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) 

### '(citing.Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). To be admissible prior bad acts evidenbe, the e:Vidence must fall within one ofthe exceptions listedin KRE 404(b). Here, the
. Commonwealth sought to introduce evidence ofGross's prior acts·of violence against Stanleyto show Gross's motive and intent to commit the crime charged and to show the·absence ofmistake or accident. Text and Facebook messages. The**Comm~nwealth** sought tO introduce text and Facebook messages between Gross and Stanley. These messages showed that

5Stanleywas afraid ofGross,1 Gross threatened to kill Stanley,2 Gross hit ·Stanley on a regular basis,3 and that Gross choked Stanley on the ground.4 This Court agrees with the trial court and the Commonwealth that this evidence was admissible to show Grosi;;'s intent. Where the issue addressed is the defendant's intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant's indulging himself in the same state of mind in the perpetration of both·the extrinsic and charged offenses. The reasoning is that because the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful intent in the present offense. 

### Walker v. Commonwealth, 52 S.W.3d 533, 537 (Ky. 2001) (citing 

### United States v. Beechum, 582 F.2d 898, 911 (5th. Cir. 1978), 

### cerl. denied, 440 U.S. 920 (1979)).

· i I'm sorrythat I scare u often I'm tryin to not niake fast or quick moves around u or toward u thatmay scare u I hate hate hate thatu r scared ofme cuzu shouldn't have to b scared ofthe orie u love but I understand whyu r scared and I don'tblame u BUTI promise imaprove to u**th~t** u don't have to b scared anymore and I am here to . protect

## u and. give u all thatu need an everthinu need and then some I love u with all myheart.· Com. Ex. 18: Textmessage from Gross to Stanley. 2 I do love you. !meantever thing I said. Buthow manytimes you gonna threaten to kill me before you really do. I quitheroin because I don't want to die. And I don't want to worry aboutyou thinking shitup inyourhead and snapping on me.· You have hit me atleast every otherweek since the firstpme. And broke whatlittle material things I do have. And you hurtme. You wouldn't do the things you've done to me ifyou really cared about me. You sayyou put everyone'shappiness befo.re your own. But as far as I'm concerned
.. you don't. And I don't thinkyou'll ever be concerned aboll.t myhappiness. I want to feel safe and secure. And that's gone. Com. Ex. 29: Facebook message sentfrom Stanleyto Gross. 3 See Com. Ex. 29, 

### ill.' 2.
4 Good. Don't. Andyeah
.. Just slap me punch me throwbe down stairs down
·to the ground choke me out and breakmyphone and my car and tryto tell me about work and the weddingto fuck with me an,d Lacey andAmanda andwhoever else. And I still fucking called to seeyou knowingyou were leavingfor Vegas. And yea. That is I so right. Com. Ex. 32: Facebookmessage sentfrom Stanleyto Gross. (While Gross only quotes a portion ofthis message in his brief, the. entire message is provided here.) 6Once determined to fall within an exception listed in KRE 404(b), the prior bad acts evidence must satisfy the three-prong test described in

. I 

### Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994), which analyzes the**prop~sed** evidence in terms of(1) relevance, (2) probativeness, and (3) its prejudicial effect. 

### Driver V; 

### Commonwealth, 361 S.W.3d 877, 883 (Ky. 2012). "With respect to relevance, ·the·assessing court asks, is the evidence relevant 'for some purpose other than to prove the criminal disposition ofthe accused?" Aside from showing criminal propensity, that is, the extrinsic act evidence must bear 

### materially on an element ofthe offense or on some otherfact actually in dispute." 

### Jenkins
v. Commonwealth, 496 s·.W.3d 435, 457 

### (Ky. 2016) (emphasis in original) (internal citations omitted). The messages introduced at trial were relevant to the material issues ofGrass's intent to commit the assault and to show the absence of accident. Despite Grass's assertion.s that the messages were not relevant because they did not establish temporal proximity

### to the alleged assault in this case, the messages were very close in time to the alleged assault. Commonwealth's exhibit 18 occurred on September 11, 2015; exhibit 29 occurred on July 26, 2015; and exhibit 32 occurred on**Au~st** 20, 2015. The alleged·assault occurred on September 14, 2015. This Court believes the proximitywas close enough to satisfy the relevancy requirement.

·7Gross argued that his dog, Capone,**wa~** protecting him and attacked Stanley. At trial the Commonwealth was tasked with proving
an actual crime occurred. This Courthas long held that prior acts evidence can be admitted to show the absence ofaccidents and we. believe the messages admitted into evidence.are relevant to show Gross intended to commit the assault. The second prong looks to the probativeness orthe evidence. The
' '-- prior acts evidence1ccurred within a few.months before the alleged assault and occurred at the same place' (Grass's home). The evidence of Grass's past violence against Stanleyis probative ofthe assertion that Gross acted intentionallyto assault Stanley on September 14, 2015. This Courtfinds the evidence was admitted for otherpurposes than to prove Grass's propensity_to commit criminal acts. The final prong to be addressed is whether the probative·value of the evidence was outweighed by the danger ofundue prejudice. The messages were not unduly emphasized, and Gross had complete opportunity to contestthe messages through cross-examination. "Undue prejudice is most often found where there is

## arisk that the evidence
·,. might produce a decision grounded in emotion rather than reason or. where the evidence might be used for an improper purpose." Wilson v. 

### " Commonwealth, 438 S.W.3d 345, 350 (Ky. 2014)(internal citations

I s Moseley v. Commonwealth, 960 S.W.2d.460, 461 (Ky. 1997) ("Evidence**th~t** Appellanthad abusedhis victimr on prior occasions was relevant to prove the absence

. ofaccident ormistake when he subsequentlykilled her.") 8('. omitted)'. The prior act evidence in this case was far less severe than the acts·for which Gross was**,charg~d** and tried. Such prior act evidence is not ofthe caliber to "produce a**decision~**grounp.ed in.emotion rather than reason." Thus, we find the risk ofundue prejudice to have been mitigated bythe probative value ofsuch evidence. The trial court's decision to admit the messages was not an abuse ofdiscretion. 

### Marilyn Stanley's Testimony. The Commonwealth sought to have Stanley testify to an incident in
. L July 2015, in which Gross choked her on his bed, causing Stanley to.lose consciousness and urinate on herself. Stanleywas also prepared to testify that Gross had referenced the choking incident during the assault in the current case. The Commonwealth argued that it sought to introduce this testit:?ony to prove the element, ofintent. Gross maintains the testimony is not relevant because Gross did

· not choke Stanley during the incidentin the present case, Stanley drew

no connection between the choking episode and the current assault, and Stanley's testimony.did not make it any more probable that Gross caused the injuries to Stanley's scalp. Gross further argued thatthe evidenceis not probative because it did not1ead to an arrest and it is unduly prejudicial because it only emphasized Gross's.violent chEl_racter. We disagree. As stated above, this prior choking incident is relevant to show Gross's intent to inflict injury upon Stanley on September 14, 2015; it is
9\ probative in that both incidents occurred in Grass's home and in his bedroom; and the testimony was not soinflammatory as to elicit an. emotional response from thejury. 

### ·stanley's Mother's Testimony. Stanley's mother, Linda, testified about her call to 911 after Stanley returned from Grass's trailer. Linda told the dispatcher that Gross had·hurt Stanley even though Stanleyhad notyet told her mother what had happened. Linda also gave the dispatcher Grass's address and license plate number saying she knew somethinglike this would eventually happen and she would have to call 911. I

. This issue is unpreserved aild Gross requests palpable error review. A palpable error whiCh affects the substantial rights of a party may be considered·by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the errcir. Rule ofCriminal Procedure (RCr)**~0.26~** A palpable error mustbe so grave in nature that ifitwere uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the ·reviewing court believes there is a substantial possibiljty that the result in the case would have·been different without the error. If no, the error cannot_be palpable. Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) (citing Brewerv. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)). We find no error in the trial court's admission ofLinda's testimony, let alone palpable error. As stated previously, prior acts may be admissible ifso 10intertwined 0withother evidence in the case. KRE 404(b)(2). "KRE 404(b)(2) allows. the Commonwealth to present a complete, unfragmented picture ofthe crime and investigation[,] incl_uding a picture ofthe circumstances**sur~ounding** how the crime was discovered." 

### Kerr v. Commonwealth, 400 S.W.3d 250, 261 ·(Ky. 2013)(internal citations omitted). "This exception to the general exclusionaryrule allows for the introduction ofpriorbad acts when relevant to providing context to the crime
( ·being tried becau.se[:] the acts that constitutecrimes cannot be understood without at least some reference to acts, events, or conditions that lead up to •them
... even though not inher:ent in or necessary to the crime
...

. [W]itnesses cannot convey what they know to the trier of fact without making at least some reference to acts, events, or conditions**th~t** are a natural part of a nar,rative without referring

. - to at least some tings that are not essential in proving the crime itself
.... Hence[,] it becomes ;reasonable to speak of a "complete story" rule[;] and the system allows proof of what amounts to uncharged crimes[, ] when these are necessary in telling and understanding the story ofthe charged crimes." Id. at 261-62. (internal citations omitted). Linda's.testimonywas relevant in understanding the complete crime. Stanleywas at her mother's home the morning ofSeptember 14, 2015. She returned to her mother's home after sustainingher injuries. Linda called 911. Although this evidence was prejudicial, most evidence sought to be introduced by the Commonwealthis prejudicial to some degree. Grass's trial covered four days. Linda's testimony, to which**~ross** objected, consisted ofless than 2

. / . minutes qfthose four days.6 Further, Gross had ample opportunity to cross6**Tii~** record, January 30, 2017, 1:58:00-1:59:16p.m. 11examine Linda. The trial courtdid not abuse its discretion in admitting the
. evidence. Gross finally contends that because he received the maximum · sentence imposed by the verdict, prejudice from the above admitted

/ evidence must be presumed. As we have said before, this argument confuses different senses ofthe word 'prejudice' and different standards ofreview. Had the trial court erred by admitting the prior-act testimony, the effect ofthat testimony would have been relevantto a consideration ofwhether the error was harmless, say, or palpable. Generally, however, properly admitted evidence simply has the effect that it has; it does not become improperly admitted because thejuryhappens to give it weight. The 

### actualprejudice that pertains to harmless""error and to palpable-error analysis should not be confused with the 

### potentialfor undue prejudice that bears upon a court's admissibility ruling under KRE 402 and 404. 

### Jenkins, 496 S.W.3d at n. 20. (emphasis in original). 

### B. Dr. William John Kitzmiller was qualified to give an expert opinion about the cause ofStanley's injury. "If scientific, technical, or other specialized.knowledge will assist the trier offact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,

' ' may testify thereto in the form ofan opinion or otherwise . . . . " KRE 702. The decision to qualify a witness as an expert rests in the sound discretion ofthe trial court. 

### McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (Ky. 2013). ' ' "Presumably,jurors do not need assistance in the form ofan expert's opinion that the defendant is guilty or not guilty. However, they usually do need the assistance ofa medical expert in determining the cause ofa physical condition in order to under.stand the evidence and determine the ultimate fact in issue." 12

### Stringer v. Commonwealth, 956 S.W.2d 883, 889-90 (Ky. 1997) (citing KRE 401; KRE 702)). An expert's testimony mustbe relevant, mustrelate to a material issue in the case, and the expert's**kno~ledge** must aid the trier offact. 

### Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993). The expert testimony should be based upon personal observation,**examinati~n,** and testing. 

### SeeBurton v. Commonwealth, 300 S.W.3d 126, 141 (Ky. 2009). Dr. Kitzmiller was the plastic surgeon who treated Stanley's injuries. The trial court conducted an evidentiaryhearing in which Dr. Kitzmiller testified to his education and experience and to his treatment ofStanley. Dr. Kitzmiller· had treated patients with scalp injuries; including over 200,patients with scalp injuries due to dog attacks. One ofthose 200 patients lost a large amount of 

## ' scalp. Dr. Kitzmiller also testified to treating hundreds ofgeneral knife wounds, although he had r:1.ot treated a**~calping** wound caused by a knife. The trial court qualified Dr. Kitzmiller to testify to Stanley's injuries, the treatment he provided, and his opinion on causation. At trial, Dr. Kitzmiller stated thatalthough he could not be certain, in his personal opinion Stanley's injuries favored a sharp objectrather than a dog bite. Gross argues that because Dr. Kitzmiller had never treated a scalping caused by a knife he was_unqualified.to**comm~nt** on the causation ofStanley's

. scalp injury. Gross's argument is unpersuasive. Dr. Kitzmiller had significant experience treating both dog bite and knife injuries. His testimony describing the straight nature ofthe edges ahd the 13disruption ofStanley's scalp u;ridoubtedly stems-from his ext_ensive experience ' treating similarinjuries. The decision to qualify an expert is not**~** abstract decision but rather whether the witness's qualification,s provide the necessary foundation to respond to the specific question asked. Kemper v. Gordon, 272 S.W.3d 146, 154 (Ky. 2008). This Court finds Dr. Kitzmiller had sufficient qualifications, schooling, training, and experience to be qualified as an expert. Courts will reject expert testimonywhere it is based on rank speculation.

. ' Wright and Gold, Federal Practice and Procedure: Evidence§ 6264. Dr. Kitzmiller's testimony was not rank speculation, even though itwas equivocal,
-. , . . . . in some aspects. This"equivocation goes to the weight ofthe evidence, not the admissibility. As such, this Courtfinds no abuse ofdiscretion. 

### C. The trial court did not err when it prohibited Gross from asking Marci Adkins about mishandling evidence in a prior case. MarciAdkins, with the Kentucky State Police Central Lab, tested blood stains in Grass's trailer, the knife, a shoe, a pair ofshorts, a cup, Stanley's ( fingernail clippings, and buccal swabs taken from both Gross and Stanley. Adkins' testimony at trial was that there was no foreign DNA found on Stanley's fingernails
.

.Gross askedAdkins ifshe was familiar with the case of Commonwealth v. Barbour, and Adkins responded affirmatively. The Commonwealth objected when Gross asked Adkins what**happen~d** in that case. The Commonwealth claimed irrelevancy to the present case. Grass's counseldefended by saying Adkins lost evidence in the Barbourcase and that was relevant to·her

. . credibility. The trial court informed counsel that he could ask about the 14

### Barbourcase ifthere was anything to suggest a misreporting ofresults, a '\. mischaracterization ofanalysis orresults, or anything to challenge Adkins' testimony in the present case. The trial court sustained the Commonwealth's objection to any other inquiry into the 

### Barbourcase because it felt itwas improper impeachment that would o.nly confuse thejury. Gross maintained his theory of self-defense. Stanley attacked Gross, Gross acted in self-defen.se, and then Capone attacked "' Stanley. Adkins' testimony regarding no foreign DNA under Stanley's nails undermined·Gross's defense because it tended to show Stanley did not puther hands on Gross. According to Gross, he was entitled to questionAdkins

. credibilitybefore.thejury. "Cross-examination is a criminal defendant's fundamental right protected by the confrontation and due process provisions ofboth the Kentucky and United States Constitutions." 

### Rogers v. Commonwealth, 366 S.W.3d 446, 454 (Ky. 2012)(citing 

### Commonwealth v. Maddox, 955 S.W.2d 718 (Ky. 1997)). However, itis well established "that the right to cross-examination is not absolute and the trial courtretains the discretion to set limitations on the scope and subject: '['f]he Confrontation Clause.guarantees an 

### opportunity for effective cross-examination, not cross-examination thatis effective in whateverway, and to whatever extent, the defense mightwish'." 

### Davenport

## v. Commonwealth, 177 S.W.3d 763, 767-68 (Ky. 2005) (citing 

### Delaware v. Van. Arsdall, 475 U.S. 673, 679 (1986) (emphasis in original)). Trial courts retain wide latitude to impose reasonable limits on cross-examination "based on 15concerns about, among other things, harassment, prejudice, confusion ofthe issues,**~he** witness' safety, or interrogation that is repetitive or only marginally relevant." 

### Id
..at 768 (internal citations omitted).
( When the scope ofcross-examination is on a collateral issue, the trial court must first determine whether the subject ofcros,s-examination is relevant "and then determine whether the probative value is outweighed by the prejudicial effect." 

### Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) (internal citations omitted). When the cross-examination is .ofone other than
. the defendant, greater latitude is generally allowed. 

### Id. (citing 

### Byrd v. '
. 

### ' Commonwealth, 825 S.W.2d 272 (Ky. 1992); 

### Sanborn v. Commonwealth, 754

- ' S.W.2d 534 (Ky. 1988); and 

### Barrett v. Commonwealth, 608**S~W.2d** 374 (Ky. 1980)). "Nevertheless, 

### a connection mustbe established between the crossexamination proposed to be undertaken and the facts in evidence. A defendant is not at liberty to presentunsupported.theories in the guise ofcrossexamination and invite thejuryAo 

### speculate as to some cause otherthan one supported by the evidence." Id. (emphasis added). There was no evidence presented to support a theory.ofthe mishandling ofevidence or a break in. the chain ofcustody ofevidence. Because the proposed cros.s-examination involved a collateral matter, this Court finds that it did not satisfyrelevancy requirements. Further, we agree with the trial court that this testimony, had it been elicited, would have likely confused thejury-. This is the type ofevidence the 

### MaddoxCourt advised against

- evidence that

16would have invited thejury to speculate as_to causation. We find no abuse of discretion in the trial court's prohibition ofthis.cross-examination. 

### D. The Defendant was not entitled to a

### jury instruction on imperfect selfdefense.

- · Thejuryfound Gross-guilty ofassault in the first degree believing that he.**c~aused** serious physical injury to Stanleyusing a knife and that he was not privileged to act in self-protecti.on. Thejuryalso found Gross guilty ofassault in the first degree believing that he caused serious physical injury to Stanley**~** using his dog and that he was not privileged to act in self-protection. Thetrial court qualified each assault instruction with a general self-defense provision.

. - 

# '

. . Gross's final argument is that the trial court erred when it failed to instruct the jury on imperfect self-defense. Defense**coun~el** tendered proposed instructions for second-degree assault and fourth-degree assault, both containing theories ofimperfect self-defense.

,,.. The two second-degree·assault instructions referred to the infliction of serious physical injury through 

### intentionally punching and/or**~eking** and by



### . wantonlyusing his dog to cause injury, respectively. ·The two fourth-degree

assault instructions referred to the infliction ofserious physical injury through 

### intentionallypunching and/or·kicking and by 

### recklesslyusing his dog to cause injury, respectively.

. . ' . This Courtfinds Gross was not entitled to an instruction on imperfect self-defense. First, Grass's version o_fevents does not support the giving of such an instruction. Here, Gross testified that Stanley attacked him in the.

17kitchen and he reacted in self-defense. Stanley ran to the bedroom and when Gross arrived, Capone was already attacking Stanley's head
.

. Under Grass's own version ofevents, he never inflicted injury to s·tanley's scalp either through the use ofa knife or in the use ofhis dog. Because Gross maintained.that he did not scalp Stanley, the evidence 4id not support a jury_ instruction claiming Gross was mistakei:i in his beliefin the need to scalp Stanley to protecthimself. The trial court does not have a duty to instruct on a theorywith no evidentiaryfoundation. 

### Houston v. Commonwealth, 975 S.W.2d. 925, 929 (Ky. 1998)
.. Further, taking Gr9ss's recollection ofthe facts as true, once Stanley ran into the bedroom, any further beliefofdanger on the part ofGross was dispelled. Upon further altercation with Stanleyin tl).e bedroom, Gross became
an initi;;tl aggressor. A defendant loses thejustification ofself-defense ifthe · defendant was the initial aggressor. KRS 503.060. Therefore, even ifthis Courtwas to find that the evidence supported the giving ofan imperfect selfdefense instruction, such errorwould be harmless because the instruction would also have to be qualified wit? an initial aggressor instruction, which the jurywas also presented with. Any error in failing to give an instruction is deemed harmless as we cannot see the outcome ofthis case being any different. Second, any error offailing to include an imperfect self-defense instruction in the intentional instructions.ofassault second arid assault fourth
was harmless because Gross was not convicted of.either crime. These 18instructions allowed thejuryto convict Gross ofintentionally inflicting serious physical injury upon Stanley by means ofpunching and/or kicking. Because Gross was not convicted under these statutes, this Court will not posit**~** different outcome had the imperfect self-defense instruction been provided: Finally, we cannot say the outcome would have been different had Gross received the instruction in regard to the wanton (assault second) and reckless (assault fourth) assault charges. We reiterate that imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a '\ defendant ofa lesser offense, 

### i.e., one for which wantonness or recklessness is the culpable mental state. 

### Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998). Because thejury found Gross to have acted intentionally and without anyjustification, we do not find any error in the failure to give the imperfect self-defense instruction to the lesser included offenses.
III. CONCLUSION For the foregoing reasons, thejudgment ofthe Boone Circuit Court is affirmed. All sitting. All concur.

19COUNSEL FORAPPELLANT: Steven Jared Buck Department ofPublic Advocacy
COUNSEL FORAPPELLEE: Andy Beshear
. Attorney General ofKentucky William·Robert LongJr. , ·AssistantAttorneyGeneral

20