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RENDERED: MARCH 22, 2018 

NOT TO BE PUBLISHED 

~upumt ~Inurf nf ~eAN ffi\ [L 

2017-SC-000152-MR [Q)~ LJ[E't/J2p8/4,'4d.wn,DC 

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 County jury found Zachary Allen Gross guilty of assault in the 

first degree and Gross's punishment was 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-defense jury instruction. After a thorough review 

of the 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 of Stanley. Gross picked Stanley up 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 of her face. Stanley tried to leave but Gross grabbed her around 

the waist and carried her into the bedroom. Wh~le being carried to the 

bedroom, Stanley pulled a knife from her pocket. Stanley testified she carried 

the knife because she was afraid of Gross. 

, 

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 her head 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 of her saying, "Look 

at you. You're bald. Now nobody's going to want you. Go look at yourself in 

the mirror." A significant portion of Stanley's scalp had· been removed during 

the altercation. Stanley went to the bathroom and sat on the toilet but did not 

look in· the mirror. When she returned to the bedroom, Gross made Stanley lie 

on the fl~or where he storriped on her ribcage twice. 

Gross grabbed Stanley's ~calp and hair and put it in a plastic Kroger bag. 

Stanley lost 40 percent of her scrup and she·will never be able to regrow hair 

where the scalp is missing. Stanley testified 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 off down the street. Wheri 

' 2 
Stanley 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 of events. According to Gross, the two 

accused each other of infidelity 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, Stanley was 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 off and told her that 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 sat her on the toilet. Gross 

tried to call 911, but Stanley fold him. not to. Capone got out of the closet and 

~alked into the bathroom. Gross tried to kick him away, but Stanley said not 

to discipline the dog. Gross said he never used the knife nor commanded 

Capone to attack Stanley. 

3 
At trial, Dr. William John Kitzmiller offered expert testimony for the 

Commonwealth. Dr. Kitzmiller treated Stanley's scalp wound and he testified 

to the severity of the injury and the multiple surgeries endurec;l by Stanley. He 

testified that the injury to Stanley's scalp was mo~e consistent with an injury 

caused by a sharp object than a dog bite. 

The jury determined that Gross committed first-degree assault and 

recommended a sentence of twenty years' imprisonment. The trial court 

sentenced Gross according to the jury's recommendation. Gross now appeals 

as a matter of right. 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 of error involves the trial court allowing the 

Commonwealth to present prior bad acts evidence via text messages, Facebook 

messages, and witness testimony. Gross properly pre~erved the claim of error 

regarding the text and Facebook messages and Stanley's testimony. 

Evidence of other 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) if offered for some other purpose, such as proof of motive, 

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

absence ;of mistake 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 of Evidence (KRE) 404(b). 

"The trial judge has sufficient discreti~p. to admit evidence of 

uncharged bad acts if it is relevant, probative and the potential for 

4 
prejudice does not outweigh the probative value of such evidence." 

Parker v. Commonwealth, 952 S.W.2d 209, 213 (Ky. 1997). This Court 

has held that evidence of prior, similar acts of abuse against the same 

victim of the alleged crime is "almost always admissible" under KRE 

404(b) to prove the defendant's "intent, plan, or absence of mistake or 

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

Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002)). 

The standard of review of a trial court's evidentiary rulings is 

abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 

2007). "The test for abuse of discretion is whether .. the trial judge's 

decision was arbitrary, unreasonable, unfair, or unsupported by sound 

. ( 

legal principles." Goodyear Tire & Rubber Co. 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 of the exceptions listed in KRE 404(b). Here, the . 

Commonwealth sought to introduce evidence of Gross's prior acts· of 

violence against Stanley to show Gross's motive and intent to commit the 

crime charged and to show the· absence of mistake or accident. 

Text and Facebook messages. 

The Comm~nwealth sought tO introduce text and Facebook 

messages between Gross and Stanley. These messages showed that 

5 
Stanley was afraid of Gross,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 sorry that I scare u often I'm tryin to not niake fast or quick moves around 

u or toward u that may scare u I hate hate hate that u r scared of me cuz u shouldn't 

have to b scared of the orie u love but I understand why u r scared and I don't blame u 

BUT I promise ima prove to u th~t u don't have to b scared anymore and I am here to . 

protect u and. give u all that u need an everthin u need and then some I love u with all 

my heart.· Com. Ex. 18: Text message from Gross to Stanley. 

2 I do love you. !meant ever thing I said. But how many times you gonna 

threaten to kill me before you really do. I quit heroin because I don't want to die. And 

I don't want to worry about you thinking shit up in your head and snapping on me.· 

You have hit me at least every other week since the firstpme. And broke what little 

material things I do have. And you hurt me. You wouldn't do the things you've done 

to me if you 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 think you'll ever be 

concerned aboll.t my happiness. I want to feel safe and secure. And that's gone. 

Com. Ex. 29: Facebook message sent from Stanley to Gross. 

3 See Com. Ex. 29, ill.' 2. 

4 Good. Don't. And yeah .. Just slap me punch me throw be down stairs down 

· to the ground choke me out and break my phone and my car and try to tell me about 

work and the wedding to fuck with me an,d Lacey and Amanda and whoever else. And 

I still fucking called to see you knowing you were leaving for Vegas. And yea. That is I 

so right. Com. Ex. 32: Facebook message sent from Stanley to Gross. (While Gross 

only quotes a portion of this message in his brief, the. entire message is provided here.) 

6 
Once 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 of the accused?" Aside from showing criminal 

propensity, that is, the extrinsic act evidence must bear materially on an 

element of the offense or on some other fact 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 of Grass'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 proximity was close enough to satisfy the relevancy 

requirement. 

·7 
Gross argued that his dog, Capone, wa~ protecting him and 

attacked Stanley. At trial the Commonwealth was tasked with proving 

an actual crime occurred. This Court has long held that prior acts 

evidence can be admitted to show the absence of accidents 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 Stanley is probative of the assertion that 

Gross acted intentionally to assault Stanley on September 14, 2015. 

This Court finds the evidence was admitted for other purposes 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 of undue prejudice. The 

messages were not unduly emphasized, and Gross had complete 

opportunity to contest the messages through cross-examination. "Undue 

prejudice is most often found where there is a risk 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 

Appellant had abused his victimr on prior occasions was relevant to prove the absence 

. of accident or mistake when he subsequently killed 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 of the caliber to "produce a decision~ grounp.ed in. emotion rather than 

reason." Thus, we find the risk of undue prejudice to have been 

mitigated by the probative value of such evidence. The trial court's 

decision to admit the messages was not an abuse of discretion. 

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. Stanley was 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, of intent. 

Gross maintains the testimony is not relevant because Gross did 

· not choke Stanley during the incident in 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 that the evidence is 

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 so inflammatory as to elicit an. 

emotional response from the jury. 

·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 Stanley had not yet told her mother 

what had happened. Linda also gave the dispatcher Grass's address and 

license plate number saying she knew something like 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 of Criminal Procedure (RCr) ~0.26~ 

A palpable error must be so grave in nature that if it were 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 Brewer v. 

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)). 

We find no error in the trial court's admission of Linda's testimony, let 

alone palpable error. As stated previously, prior acts may be admissible if so 

10 
intertwined 0

with other evidence in the case. KRE 404(b)(2). "KRE 404(b)(2) 

allows. the Commonwealth to present a complete, unfragmented picture of the 

crime and investigation[,] incl_uding a picture of the 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 exclusionary rule allows for the 

introduction of prior bad acts when relevant to providing context to the crime 

( 

·being tried becau.se[:] 

the acts that constitute crimes 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 of the charged crimes." 

Id. at 261-62. (internal citations omitted). 

Linda's .testimony was relevant in understanding the complete crime. 

Stanley was at her mother's home the morning of September 14, 2015. She 

returned to her mother's home after sustaining her injuries. Linda called 911. 

Although this evidence was prejudicial, most evidence sought to be introduced 

by the Commonwealth is prejudicial to some degree. Grass's trial covered four 

days. Linda's testimony, to which ~ross objected, consisted of less than 2 

. / . 

minutes qf those four days.6 Further, Gross had ample opportunity to cross6 Tii~ record, January 30, 2017, 1:58:00-1:59:16 p.m. 

11 
examine Linda. The trial court did 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 of the word 'prejudice' and 

different standards of review. Had the trial court erred by 

admitting the prior-act testimony, the effect of that testimony 

would have been relevant to a consideration of whether 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 the jury happens to give it 

weight. The actual prejudice that pertains to harmless""error and 

to palpable-error analysis should not be confused with the 

potential for 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 of Stanley's injury. 

"If scientific, technical, or other specialized .knowledge will assist the trier 

of fact 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 of an opinion or otherwise . . . . " KRE 702. The 

decision to qualify a witness as an expert rests in the sound discretion of the 

trial court. McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (Ky. 2013). ' ' 

"Presumably, jurors do not need assistance in the form of an expert's opinion 

that the defendant is guilty or not guilty. However, they usually do need the 

assistance of a medical expert in determining the cause of a 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 must be relevant, must relate to a material issue in 

the case, and the expert's kno~ledge must aid the trier of fact. Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993). The expert 

testimony should be based upon personal observation, examinati~n, and 

testing. See Burton 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 evidentiary hearing in which Dr. Kitzmiller testified to 

his education and experience and to his treatment of Stanley. Dr. Kitzmiller· 

had treated patients with scalp injuries; including over 200 ,patients with scalp 

injuries due to dog attacks. One of those 200 patients lost a large amount of 

' scalp. Dr. Kitzmiller also testified to treating hundreds of general 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 that although he could not be certain, in his 

personal opinion Stanley's injuries favored a sharp object rather 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 of Stanley'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 of the edges ahd the 

13 
disruption of Stanley's scalp u;ridoubtedly stems-from his ext_ensive experience 

' 

treating similar injuries. 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 testimony where 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 it was equivocal, -. , . . . . 

in some aspects. This "equivocation goes to the weight of the evidence, not the 

admissibility. As such, this Court finds no abuse of discretion. 

C. The trial court did not err when it prohibited Gross from asking Marci 

Adkins about mishandling evidence in a prior case. 

Marci Adkins, with the Kentucky State Police Central Lab, tested blood 

stains in Grass's trailer, the knife, a shoe, a pair of shorts, 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 asked Adkins if she 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 Barbour case and that was relevant to ·her . . 

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

14 
Barbour case if there was anything to suggest a misreporting of results, a 

'\. 

mischaracterization of analysis or results, or anything to challenge Adkins' 

testimony in the present case. 

The trial court sustained the Commonwealth's objection to any other 

inquiry into the Barbour case because it felt it was improper impeachment that 

would o.nly confuse the jury. 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 put her 

hands on Gross. According to Gross, he was entitled to question Adkins 

. credibility before .the jury. 

"Cross-examination is a criminal defendant's fundamental right 

protected by the confrontation and due process provisions of both 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, it is well established "that the right to cross-examination 

is not absolute and the trial court retains the discretion to set limitations on 

the scope and subject: '['f]he Confrontation Clause. guarantees an opportunity 

for effective cross-examination, not cross-examination that is effective in 

whatever way, and to whatever extent, the defense might wish'." 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 

15 
concerns about, among other things, harassment, prejudice, confusion of the 

issues, ~he witness' safety, or interrogation that is repetitive or only marginally 

relevant." Id .. at 768 (internal citations omitted). 

( 

When the scope of cross-examination is on a collateral issue, the trial 

court must first determine whether the subject of cros,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 .of one 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 must be established between the crossexamination proposed to be undertaken and the facts in evidence. A defendant 

is not at liberty to present unsupported. theories in the guise of crossexamination and invite the juryAo speculate as to some cause other than one 

supported by the evidence." Id. (emphasis added). 

There was no evidence presented to support a theory.of the mishandling 

of evidence or a break in. the chain of custody of evidence. Because the 

proposed cros.s-examination involved a collateral matter, this Court finds that 

it did not satisfy relevancy requirements. Further, we agree with the trial court 

that this testimony, had it been elicited, would have likely confused the jury-. 

This is the type of evidence the Maddox Court advised against - evidence that 

16 
would have invited the jury to speculate as _to causation. We find no abuse of 

discretion in the trial court's prohibition of this .cross-examination. 

D. The Defendant was not entitled to a jury instruction on imperfect selfdefense. - · 

The jury found Gross-guilty of assault in the first degree believing that he. 

c~aused serious physical injury to Stanley using a knife and that he was not 

privileged to act in self-protecti.on. The jury also found Gross guilty of assault 

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. The trial 

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 

of imperfect self-defense. 

,,.. 

The two second-degree· assault instructions referred to the infliction of 

serious physical injury through intentionally punching and/ or ~eking and by 

. wantonly using his dog to cause injury, respectively. ·The two fourth-degree 

assault instructions referred to the infliction of serious physical injury through 

intentionally punching and/or·kicking and by recklessly using his dog to cause 

injury, respectively. 

. . ' . 

This Court finds Gross was not entitled to an instruction on imperfect 

self-defense. First, Grass's version o_f events does not support the giving of 

such an instruction. Here, Gross testified that Stanley attacked him in the. 

17 
kitchen 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 of events, he never inflicted injury to s·tanley's 

scalp either through the use of a knife or in the use of his 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 belief in the need to scalp 

Stanley to protect himself. The trial court does not have a duty to instruct on a 

theory with no evidentiary foundation. Houston v. Commonwealth, 975 S.W.2d. 

925, 929 (Ky. 1998) .. 

Further, taking Gr9ss's recollection of the facts as true, once Stanley ran 

into the bedroom, any further belief of danger on the part of Gross was 

dispelled. Upon further altercation with Stanley in tl).e bedroom, Gross became 

an initi;;tl aggressor. A defendant loses the justification of self-defense if the · 

defendant was the initial aggressor. KRS 503.060. Therefore, even if this 

Court was to find that the evidence supported the giving of an imperfect selfdefense instruction, such error would be harmless because the instruction 

would also have to be qualified wit? an initial aggressor instruction, which the 

jury was also presented with. Any error in failing to give an instruction is 

deemed harmless as we cannot see the outcome of this case being any 

different. 

Second, any error of failing to include an imperfect self-defense 

instruction in the intentional instructions. of assault second arid assault fourth 

was harmless because Gross was not convicted of .either crime. These 

18 
instructions allowed the jury to convict Gross of intentionally inflicting serious 

physical injury upon Stanley by means of punching 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 of a 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 the jury found Gross to have acted intentionally and without 

any justification, 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, the judgment of the Boone Circuit Court is 

affirmed. 

All sitting. All concur. 

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COUNSEL FOR APPELLANT: 

Steven Jared Buck 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Andy Beshear . 

Attorney General of Kentucky 

William· Robert Long Jr. , 

·Assistant Attorney General 

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