# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANU ARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOC UMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: FEBRUARY 18, 2021 NOT TO BE PUBLISHED 

# Supreme Court of Kentucky

2019

- SC

- 0589

- MR

FARAND SKINNER APPELLANT

ON APPEAL FROM BRECKINRIDGE CIRCUIT COURT V. HONORABLE KENNETH HAROLD GOFF II , JUDGE NO. 18

- CR

- 00012

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING A circuit court jury convicted Farand Skinner of the murder of Paul Harrison. Following the jury’s recommendation, the trial court sentenced
Skinner to twenty

- three years’ imprisonment

. He now appeals the resulting judgment as a matter of right

. 1 Skinner claims several errors occurred during his trial : (1) that he should have received immunity from prosecution for acting in self

- defense; (2) he was convicted on insufficient evidence; (3) prosecutorial misconduct deprived him of a fair trial; and (4) the trial court improperly admitted evidence. For reasons explained below, we find that no error occurred and affirm the judgment.

1 Ky Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing a sentence of . . . imprisonment for twenty years or more shall be taken directly to the Supreme Court. ” ).2 I. FACTS Farand Skinner, the victim, Paul Harrison, and the sole eyewitness, Timothy Da

y , were roommates. They had been friends for years, and Skinner allowed the other two men to stay at his home. According to Day, Skinner and Harrison frequently argued, and Skinner made Harrison move out. Harrison’s moving out ignited an exchange of con tentious text messages between Harrison and Skinner about when Harrison could retrieve his belongings from Skinner’s house. Harrison texted that he was “going to take things to the extreme,” “get physical,” “knock his teeth down his throat” and
that Skinne r was going to have to “end up killing him,” he was “ready to die,” and “im bring aload of my shit out shoot me or do whatever but I’m going to get my shit.” Day accompanied Harrison to Skinner’s house to help him move his belongings. How the events unfo lded upon their arrival is disputed. Skinner’s residence was equipped with a home

- surveillance camera, and footage from that camera

— despite low

- quality video and no audio

— shows Skinner emerging from the house as Harrison and Day arrive, Harrison exiting t he vehicle and approaching Skinner, Skinner shooting Harrison once, and Harrison collapsing briefly before retreating to the vehicle. Once Harrison was inside the vehicle, Skinner shot at least twice into the vehicle, killing Harrison. Skinner’s defense a t trial was self

- defense. He claim ed that Harrison got out of the car, threatened to kill him, approached him aggressively with a knife, and in a manner that made Skinner fear for his life.3

Day did not testify that Harrison threatened to kill Skinner. He could only testify that Harrison was angry and the two argued immediately upon arrival. But in Day’s initial interview with police, he indicated that Harrison may have threatened Skinner. After the shooting, Skinner reentered the house and called 911. He identified himself, his address, and reported that he had shot Harrison. The grand jury indicted Skinner for Harrison’s murder. II. ANALYSIS A. The trial court did not err in denying Skinner’s motion to dismiss the indictment under Kentucky Revised Statu te (KRS) 503.085. Skinner argues the Commonwealth improperly prosecuted him because he killed Harrison in self

- defense; therefore, he was entitled to immunity from prosecution under Kentucky Revised Statute ( KRS ) 503.085. Ordinarily, we do
not “revisit w hether there was probable cause” in cases in which “a jury has already convicted the defendant

— and, thus, found [ his actions were ] unlawful beyond a reasonable doubt” unless there are flaws in the conviction. 2 But considering the seriousness of the allege d errors and fact

- intensive issues raised by Skinner, we will review the trial court’s denial of his immunity
motion. 3

2 Ragland v. Commonwealth , 476 S.W.3d 236, 246 (Ky. 2015) (“In the present case, Truss ‘has indeed shown his conviction to be flawed due to the . . . errors discussed above.’ Therefore, we must ‘address the merits of his immunity claim, which would preclude the prosecution from going forward on reman d were this Court to find error in the trial court's denial of immunity.”).

3 Id

.4

A trial court must deny a motion to dismiss criminal charges based on the accused’s claim of immunity if a substantial basis supports a finding of probable cause to conclude that the force used by the accused was unlawful. 4 And we will uphold the trial court’s decision to deny immunity so long as a substantial basis supported its finding that probable cause existed that the accused used u njustifiable force. A finding of probable cause requires that there be reasonable grounds to support a belief of unjustified force, supported by less than prima facie proof, but more than a mere suspicion. 5 Our precedent, Lemon s v. Commonwealth , is ins tructive. 6 In Lemon s , we upheld a trial court’s decision to deny immunity because a substantial basis supported its conclusion of probable cause the defendant acted with unreasonable force. 7
In Lemon s , the trial court found probable cause to believe the defendant
did not act in self

- defense because there were inconsistent versions of events from eyewitness testimony and inaccuracies in the timeline of events. 8 So we held that the totality of the circum stances justified a reasonable belief that the defendant injured the victim and supported the trial judge’s finding that there

4 Rodgers v. Commonwealth , 285 S.W.3d 740, 754 (Ky. 2009).

5 Id . at 715.

6 437 S.W.3d 708 (Ky. 2014).

7 Id . at 716.

8 Id . at 715

– 716.5

was probable cause to believe that the defendant had acted with unjustifiable
force. 9
As in Lemon s , we find the trial court in t he present case did not err in finding probable cause that Skinner’s use of deadly force was unjustified. The trial court’s finding was supported by a substantial basis found in inconsistent evidence and testimony. For example, while Skinner argues that Harrison approached him aggressively with a knife, the sole eyewitness, Day, did not recall seeing a knife and did not describe Harrison ’s approach to the house a s exhibiting behavior that justified the use of deadly force against him. Additionally, the v ideo footage of the crime is inconclusive, at best, of the manner Harrison approached Skinner. These two facts comprise much of the evidence against Skinner. Skinner argues that the trial court erred because there are no differing
versions of events. Th ough Skinner’s testimony is similar to D ay’s eyewitness testimony in many respects, it differs in the aspect most critical to Skinner’s claim of immunity, which is whether Harrison approached with a deadly weapon and in a threatening manner making him fear for his life. This critical
variance in the testimo ny is a small detail that has a great effect on whether Skinner acted justifiably. T he trial court did not err in finding probable cause existed to believe Skinner did not have adequate reason to use de adly force.6

Accordingly, the trial court properly denied Skinner’s motion to dismiss the indictment based on immunity.
B. The trial court properly denied Skinner’s motion for directed verdict of acquittal and his new trial motion because there was sufficien t evidence to support the jury’s verdict. Skinner argues the trial court erred when it denied his motion for a directed verdict of self

- defense. We review a trial court’s denial of a directed verdict motion de novo, and we will uphold the trial court’s d ecision unless it was clearly unreasonable for a jury to find guilt. 10 In ruling on a directed verdict motion, a trial court draws all fair and reasonable inferences in favor of the Commonwealth, assumes all its evidence to be true, reserves weight and

cre dibility determinations for the jury, and must deny the motion so long as there is sufficient evidence to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty. 11 A directed verdict motion for self

- defense should only be granted in the rarest of circumstances and requires there to be no contradicting evidence , fact , or circumstance that the jury could reasonably conclude that some element of self

- defense was lacking. 12 Clearly, the defendant has a high burden before a directed verdict for self

- defense will be granted. We review this claim of error accordingly.

10 Benham v. Commonwealth , 816 S.W. 2 d 1 86, 187 (Ky. 1991).

11 Id

. 12 West v. Commonwealth , 780 S.W.2d 600, 601 (Ky. 1989) ( relying on Townsend v. Commonwealth , 474 S.W.2d 352 (Ky. 1971). )7

We find sufficient evidence for a reasonable jury to conclude that Skinner was not acting in self

- defense, and the trial court properly denied his motion.
At tr ial, the Commonwealth relied heavily on the surveillance video of the incident taken from Skinner’s residence. Th ough blurry, the video showed the victim approac hing Skinner, Skinner shooting a gun, the victim collapsing, the victim then retreating to his vehicle, and Skinner shooting twice more into the vehicle

. The video, however, is not clear enough to prove that the victim was approaching Skinner in a manner that would lead him reasonably to believe he was acting in fear of imminent bodily danger.
A dditionally, Skinner contends that the victim was approaching him not only aggressively, but with a knife. But the quality of the video footage is too poor to prove that claim. Overall, the lighting on the footage is dim, the images are fuzzy, and the vi deo only shows each person’s movements but not the details of bodily features. If, as Skinner contends, the victim had a knife and approached him in an aggressive manner, the video was not clear enough to show it. A reasonable juror could find that the v ictim was not holding a knife, was not approaching aggressively, and that Skinner was not acting in self

defense. As previously mentioned, the testimony of the sole eyewitness, Day, does not completely support Skinner’s defense. Day testified that the tw o men had been arguing, fought regularly, but he did not know Harrison customarily to carry a weapon. Importantly, he did not testify that Harrison approached Skinner with a knife or with any weapon. Day’s testimony does support8

Skinner’s defense in some regards, but not enough to overcome the steep
burden of a directed verdict for self

- defense. The evidence presented was sufficient to allow a reasonable jury to consider whether Skinner’s use of deadly force was un

justified. The trial court did not abus e its discretion in denying Skinner’s motion for directed verdict.
C. Prosecutorial misconduct did not deprive Skinner of a fair trial. Skinner agues misconduct by the Commonwealth resulted in a Brady 13 violation that deprived Skinner of a fair trial. Accor ding to Skinner, the Commonwealth deprived him of exculpatory evidence, the police disposed of the exculpatory evidence, Detective Borders gave false testimony, and the Commonwealth elicited false testimony. This Court reviews claims of prosecutorial misc onduct by focusing on the overall fairness of the trial and will only reverse the conviction if it finds the misconduct to be so improper, prejudicial, and egregious as to have undermined the overall fairness of trial. 14 We find after reviewing all the cir cumstances that Skinner received a fair trial

. 1. The Commonwealth did not fail to disclose material evidence to the defense. Prosecutorial misconduct in the discovery process of a criminal trial can result in a violation of the d efendant’s due

- process rig hts. 15 A Brady violation occurs when the Commonwealth suppresses evidence that is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

13 Brady v. Maryland , 373 U.S. 83 (1963)

. 14 Brewer v. Commonwealth , 206 S.W.3d 343 (Ky. 2006).

15 Id

.9

prosecution. 16 A Brady violation also results when the government possesses
inte gral information the defense does not and deprives the defendant of a fair trial. 17 But , a Brady violation does not occur when the defense is aware of the allegedly suppressed information. 18 Here, the Commonwealth did not improperly keep exculpatory evidence from Skinner

. Most of the alleged misconduct by the Commonwealth relates to the existence of a utility knife found on Harrison’s body

. This knife was not
found at the scene of the crime but was discovered later by the medical examiner during the autopsy. Four days after the incident occurred,
Harrison ’s personal effects were returned to his family, including the knife. After the personal items were released, the Commonwealth turned over the remaining evidence of the knife ’s existence during discovery. Although the knife itself was missing, which is an issue that will be
discussed shortly , the defense had the autopsy report listing a utility knife as an item found on Harrison’s body a lo ng with pictures of the knife’s sheath t hat held it. The defense was aware the knife had been on Harris on ’s person when
h e died, what the knife’s sheath looked like, and that i t had been given back to the family. This information was properly disclosed to Skinner during the discovery process. Skinner was able to cross

- examine Detective Borders about
the knife and to raise doubt about the thoroughness of the Commonwealth’s

16 Commonwealth v. Parrish , S.W.3d 694, 697 (Ky. 2015).

17 Id . at 698.

18 Id

.10

investigation. As previously mentioned , Brady conc erns those instances in which the government possesses information that the defense does not have and then fails to disclose that information. 19 Here, because there was no information withheld from the defense, no Brady violation occurred. Therefore, if p rosecutorial misconduct occurred in Skinner’s case, it was not a result of
the Commonwealth’s failure to disclose exculpatory evidence or information regarding it.
2. The trial court’s finding that the Commonwealth did not act in bad faith by failing to pres erve potentially exculpatory evidence was supported by substantial evidence. Skinner argues his conviction must be reversed because the Commonwealth’s failure to preserve evidence deprived him of a fair trial. We review a trial court’s ruling on a failur e to preserve evidence issue for clear error and we will uphold the finding so long as it is supported by substantial
evidence. 20 To prove a failure to preserve evidence, the defendant must show the Commonwealth destroyed potentially useful evidence in bad faith

. 21 Deliberate conduct may result in a finding of bad faith, but mere negligence on

19 Bowling v. Commonwealth , 80 S.W.3d 405, 410 (Ky. 2002) (“ Rather, Brady concerns those cases in which the government possesses information that the defense does not and the government's failure to disc lose the information deprives the defendant of a fair trial. ”).

20 Garland , 458 S.W.3d 781, 786 ( “Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person.” ).

21 Id. at 786

– 87 (“ Garland fails, however, to satisfy the first and most crucial prong of the McPherson test: bad faith on the part of the government. ”).11

the part of the Commonwealth generally does not. 22 If bad faith is shown, the potential prejudice can be cured with a missing

- evidence instruction. 23 Four days after the shooting, Detective Borders returned the victim’s inventoried belongings to his family. This included the utility knife that Skinner alleges the victim was holding as he approached and supports his claim that he was acting in self

- defense. Skinner ar gues this was misconduct and constituted a violation of his due

- process rights

. The trial court found there was no misconduct by the Commonwealth because Detective Borders did
not act i n bad faith . The trial court gave a missing

- evidence instruction nevertheless

. Sanborn v. Commonw e alth 24 draws the clearest picture of bad

- faith conduct in a failure to preserve evidence by the Commonwealth. In Sanborn , we held that a defendant's due

- process and discovery rights were violated when the prosecutor deliber ately erased witness

- in terview tapes to keep defense counsel from obtaining the statements contained in them

. 25 By contrast, in Garland v. Commonwealth , 26 we upheld a trial court’s finding that the Commonwealth had not acted in bad faith when two officers de stroyed fingernail clippings in accordance with KSP procedure. The

22 Collins v. Commonwealth , 951 S.W.2d 569, 573 (Ky. 1997).

23 Gonclaves v. Commonwealth , 404 S.W.3d 180 , 1 97.

24 754 S.W.2d 534, 539

– 40 (Ky. 1988).

25 Id . at 539.

26 458 S.W.3d 781 (Ky. 2015).12

exculpatory nature of the evidence was not discovered before trial, but after. 27 That was substantial evidence that the officers were not acting in bad faith. 28 Similarly, in McPherson v. C ommonwealth , 29 we upheld a trial court’s decision to find the Commonwealth did not act in bad faith when a detective des troyed his preliminary notes once they had been incorporated into a draft of his report. As in Garland , we found this to be more a matter of routine housekeeping than the suppression of evidence.
We find the trial court in the present case did not err in finding there was no bad faith by the Commonwealth because t here was a substantial basis for finding t hat Detective Borders returned the knife to victim’s family out of negligence, and not deliberate misconduct. Skinner offered no evidence that Border s intentionally gave the knife to Harrison’s family to deprive Skinner of its use in his defense but only speculates that the detective knew that the utility knife was a deadly weapon that would provide credibility to his defense. Detective Borders testified that he did not check the victim’s belongings before returning them to the family and that he persona lly did not think the knife to be a deadly weapon, but rather an ordinary pocketknife. Also, Borders ’s testimony regarding the crime scene indicated that the knife was not found immediately upon viewing the victim ’s body but was found later by the
medical examiner, sheathed and in Harrison’s pocket. Additionally, t he

27 Id . at 786.

28 Id

. 29 360 S.W.3d 207, 217 (Ky. 2012).13

Commonwealth contends that Detective Borders did not consider the knife critical to Skinner’s defense because within the four days between the crime and the release of the belongings, Skinner had not mentioned that the victim brandished a knife but only that he was acting in self

- defense because of the way the victim approach ed him

. This fact further supported the trial court’s conclusion that Borders negligently disposed of the knife because he was unaware of its potential as exculpatory evidence. Evidence of bad faith must go beyond mere speculation

. 30 We are unwilling to say the trial court erred by concluding that the Commonwealth did not intentionally deprive S kinner of potentially excul patory evidence. Returning personal effects to the family is a common police procedure. And, as the trial court found it was negligent for Detective Borders to not check the victim’s belongings before returning them . But we cannot say this approaches
th e intentional conduct we found in Sanborn . T he knife lends some support to Skinner’s claim of self

- defense, but the trial court did not clearly err by finding that Detective Borders did not act in bad faith because substantial evidence supported the concl usion it was a result of negligence. Importantly, the trial court gave the jury a missing

- evidence instruction despite not finding bad faith. The m issing

- evidence instruction allow ed the jury to infer the absent item would be favorable to the defendant’s case. 31 While it is impossible to gauge the effect of exhibiting the knife would have had

30 McPherson , 360 S.W.3d at 217

– 18.

31 Swan v. Commonwealth , 384 S.W.3d 377, 391 (Ky. 2012).14

on the success of Skinner’s claim of self

- defense, it cannot be said that he was
denied a fai r trial because of it s absence

. 3. Detective Borders did not give false testimony. Skinner’s third claim of prosecutorial misconduct arises from Detective Borders’s testimony. Detective Borders testified at the preliminary hearing, before the grand jury, and at trial. At the preliminary hearing , he testified that the victim did not appear to be armed at the scene. 32 Before the g rand j ury, he testified that Skinner made two statements to police: ( 1) that he did not know
Harris on to carry a weapon and ( 2) that he did not believe the victim to be armed at the time

. Additionally, before the g rand j ury, Detective Borders stated that the victim did not possess a weapon and Skinner would have never
seen a gun. Borders testified to the same facts at trial that he relayed to the grand jury.

a. Borders’s Grand Jury Testimony Skinner argues that Detective Borders’s grand jury testimony was false because the medical examiner found the knife on Harris on ’s body. Skinner’s argument centers around the follo wing statement made by Detective Borders to the grand jury:

Commonwealth: You didn’t find any weapon in the car of the victim or on the person of the victim or anything like that? Borders: He did not possess any weapon on him. In the vehicle, in the rea r of the vehicle, there was an air rifle but that was not apparent. That had to be . . . we had to find that when we searched the vehicle.

32 The defense does not take issue with Det. Borders’s preliminary hearing testimony.15

In analyzing claims of false testimony, the Court must analyze three factors: ( 1) Was the testimony false?; ( 2) I f the testimony was false, was it material?; and ( 3) Did the prosecution know it was false? 33 If the Court answers these three questions in the affirmative, the conviction must be reversed. 34 In Commonwealth v. Baker , the Court of Appeals stated , “Generally, a defendant must demonstrate a flagrant abuse of the grand jury process that resulted in both actual prejudice and deprived the grand jury of autonomous and unbiased judgment.” 35
We find Detective Border s’s grand jury testimony not falsified b ecause his testimony relayed what he thought at that time to be true. Borders did not see a weapon on the victim at the crime scene. Additionally, in Skinner’s initial statements to police he did not say that the victim approached him with a
knife. Inst ead, Skinner said he had to defend himself because of the way that the victim approached him, the look in his eyes, and the way the victim raised his hands. Additionally, when asked if he though t Harrison had anything in his hands, he shook his head and s aid “I . . . I don’t know.” 36 Borders testified that the victim did not have a weapon on hi s person when they removed him from the car

. 37 This is true testimony because Detective Borders himself did

33 Commonwealth v. Baker , 11 S.W.3d 585, 590

– 91 ( Ky. App. 2000).

34 Id

. 35 Id . at 588.

36 VR: 8/14/19 1:43:11; 2:19:54.

37 Skinner does not contend that Harrison h ad an air rifle. The air rifle was found at the scene during the search of the vehicle , not when the body was removed.16

not find a knife on the victim, even though a knife was l ater found during the autopsy. While the testimony presented to the jury is arguably misleading, it cannot be said to be false , and the Commonwealth is under no duty to present exculpatory evidence to the grand jury. As we have held , if the Commonwealth’ s duty was to “present exculpatory as well as inculpatory evidence” it “would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.” 38 Furthermore, a grand jury proceeding requires only a finding that the evide nce supports an indictment for the crimes charged

. 39 If the grand jury had been told that a knife was found later in the victim’s belongings , it is hard to say this would have changed their decision to charge Skinner. The fact the grand jury did not hear that a knife was later found on the victim was likely immaterial.
b. Borders’s trial testimony was not false. As previously discussed, t o establish prosecutorial misconduct the defendant must show (1) the statement was false; (2) the statement was

Borders’s grand jury testimony relays this fact. At trial, when Borders was specifically asked if any weapons were found on Harrison w hen they removed him from the vehicle, he stated “ Certainly no firearms and I don’t believe there were any weapons of any type .”; VR 8/13/19 11:23:20.

38 Baker

, 11 S.W.3d at 591 (quoting United States v. Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 1744, 118 L.Ed.2d 352 (1992)).

39 Rice v. Commonwealth , 387 S.W.2d 4, 5 (Ky. 1965) (“The grand jury proceeding is not a trial. Such a body does nothing more than accuse a person of the offense he is alleged to have committed. The grand jury is merely required to fin d an indictment where they have received what they believe to be sufficient competent evidence to support it.”) ; Kentucky Rules of Criminal Procedure 5.10.17

material; and (3) the prosecution knew it was false. 40 If there is a reasonable likelihood that perjured testimony a ffected the judgment of the jury, then the defendant’s due process rights have been violated and a new trial must be ordered. 41 Detective Borders testified at trial that he did not find a knife on the victim’s body. When asked if any weapons were found on Harrison’s body at the scene of the crime, Borders stated: “There were certainly no firearms and I don’t believe there were any weapons of any ty pe.” 42 The prosecution then asked him to read the list of items returned to Harris on’s family that revealed the knife listed as one of his personal effects found during the autopsy. This fact was also disclosed during the medical examiner’s testimony as w as a photograph of the sheath containing the knife. The defense argues that Borders’s testimony about not finding a knife
was false because it was found during the autopsy

. Additionally, the defense argues that the Commonwealth elicited false testimony. As discussed previously, Detective Borders ’s testimony was not false because he himself did not observe the knife at the scene. While the fact th e knife was found during the autopsy was never revealed to the grand jury, at trial , immediately after

40 Commonwealth v. Spaulding , 991 S.W.2d 651, 654 (Ky. 1999) ( quoting United States v. Lochmondy , 890 F.2d 817, 822 (6th Cir. 1989)).

41 Id . at 655

– 66 ( “When [such] perjured testimony could ‘in any reasonable likelihood have affected the judgment of the jury,’ the knowing use by the prosecutor of perjured testimony results in a denial of due process u nder the Fourteenth Amendment and a new trial is required.” ( quoting Giglio v. United States , 405 U.S. 150, 153, (1972)).

42 VR: 8/13/19 11:23:10.18

Detect ive Borders answered th at he did not find the knife, the Commonwealth drew Borders’s attention to the list of items contained in the medical examiner’s report, which disclosed that the victim did have the knife in his possession when he died. Additionally , the picture of the knife sheath was shown during the medical examiner’s testimony. The defense was aware of the knife, used the presence of the knife to aid its defense of self

- defense, and no false testimony was presented that compromised Skinner’s rig ht to a fair trial.
D. The surveillance video and 911 call recording were properly authent icated . We review preserved trial errors for abuse of discretion and will uphold the trial court’s ruling unless unreasonable, arbitrary, or unsupported by
law. 43 Under KRE 901, evidence is properly authenticated when the proponent offers enough proof for a reasonable jury to conclude the item is what it is proposed to be. 44 The burden lies with the proponent and must provide prima facie evidence of authentication.
In L itton v. Commonwealth , 45 we found surveillance photographs to be properly authenticated when the store owner identified the photos as fair and accurate representation of the location, explained how the cameras operated, and testified that the store owner h ad removed the film , sent it to the installer, and received the pictures from it. 46

43 Johnson v. Commonwealth , 134 S.W.3d 563, 566 (Ky. 2004).

44 Kentucky Rule of Evidence 901.

45 597 S.W.2d 616 , 618

– 620 (Ky. 1980)

. 46 Id . at 619

– 20.19

1. The surveillance video was properly authenticated. As in Litton , we find the Commonwealth provided sufficient evidence to authenticate the video as a recording of the alleged offense

. Skinner argues that the Commonwealth’s authentication was insufficient because the mechanical workings of the camera were explained at trial. But Detective Borders testified that he saw the cameras as he patrolled the scene, found the

co ntrol unit for the camera in side Skinner’s house , and made a copy of the
video from the control unit . This was sufficient to allow the jury to find the video was what it was purported to be. So the trial court did not err in finding the video properly au thenticated. Additionally, Skinner does not contest the accuracy of the video footage.
In Litton the defendant also did not argue the photos were fake, and we stated,

“ In the absence of a showing of irregularity in the production of a proffered photogra ph, we need not set up ‘ unrealistic roadblocks ’ ” and “ deprive the trier of the facts of evidence not subject to the foibles of the imperfect memories and the passions and prejudices of human witnesses.” 47 Here, Skinner only contests that Detective Borders did not testify to facts like the camera’s recording capabilities and technical workings. While these are facts relevant to authenticating the video, in this instance, these specific questions would have only provided additional evidence of authentication and the credibility and weight the jury should give to the video. Further, while Detective Borders’s

47 Litton , 597 S.W.2d at 620 (quoting United States v. Hobbs , 403 F.2d 977, 978

– 79 ( 6th Cir. 1968) )

.20

testimony provided prima facie evidence of authentication, t he jury also viewed Skinner’s post

- arrest interview in which he stated his surveillance camer a had
a 30

- day recording span and that it was accessible with a computer mouse and
remote. In sum, Detective Borders’s testimony provided the jury with enough information reasonably to conclude the video was what it was purported to be.
2. The recording of the 911 call was properly authenticated . Skinner argues the Commonwealth failed to provide prima facie evidence of the authenticity of his 911 call following the altercation. We review preserved trial court evidence rulings for abuse of discretion and will affirm the ruling unless it is arbitrary, unreasonable, or unsupported by law. 48 Like the surveillance video, we find the recording of Skinner’s 911 call was properly authenticated under KRE 901. The Commonwealth authenticated the call through the testimony of a 911 dispatcher. The dispatcher explained how 911 calls are maintained and how they are kept in their regular course of business. She testified how the calls were stored in the archives, how she retrieved the recording from the archives, and how she identified the call based on the name, address, or the computer

- aided dispatch (CAD) report number. Further, she explained that she found the call and made a copy of it to a CD after listening to it and verified the CD was a copy of the call. This testimony authenticated the phone call, as

48 Johnson , 134 S.W.3d at 566.21

it provides prima facie evidence that this is the call Skinner made to 911 the night of the incident. Additionally, while Skinner does not argue the recording is false, it should be noted that ad ditional credibility and authentication were provided by the statements contained in the phone call itself. 49 The dispatcher asks the caller to identify himself, to give his phone number and address. The caller identifies himself as “Farand Owen Skinner I II” and recites his phone number
and address. The jury would have been able to compare the voice on the recording to Skinner’s voice in his interview tape and his voice at trial. This provided additional assurance that the 911 recording offered at trial was the phone call Skinner made to police following the incident.
III. CONCLUSION For the reasons explained above, we affirm the judgment. All sitting. All concur.

49 Kentucky Rule of Evidence 901(b)(5) " (“ Voice identification. ” Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. ). ”22

COUNSEL FOR APPELLANT : David Bradley Mour Law Office of David B. Mour Gregory Dean Simms Murphy & Associates

COUNSEL FOR APPELLEE : Daniel J. Cameron Attorney General of Kentucky Jesse Leo Robbins Assistant Attorney General