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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 JANUARY 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION.

 
RENDERED: JUNE 17, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0130-MR

JAMES RONNIE MCINTOSH APPELLANT

ON APPEAL FROM PERRY CIRCUIT COURT

V. HONORABLE ALISON C. WELLS, JUDGE 

NO. 19-CR-00066

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James Ronnie McIntosh was convicted of murdering Danny Mullins and 

tampering with physical evidence by a Perry County jury. The Perry Circuit 

Court, consistent with the jury’s recommendation, sentenced McIntosh to 

twenty years’ imprisonment for murder and a concurrent sentence of five years’ 

imprisonment for tampering with physical evidence. McIntosh appeals, arguing 

the trial court erred when it failed to grant him immunity from prosecution 

pursuant to Kentucky Revised Statute (KRS) 503.085. For the following 

reasons, we affirm the judgment of the Perry Circuit Court. 

I. FACTS

On February 27, 2019, McIntosh and Mullins arranged to meet in the 

Fourseam area of Perry County. The meeting turned violent, and McIntosh 
2

fired eleven shots at Mullins, hitting him eight times. Mullins succumbed to his 

injuries at the scene. McIntosh fled the scene, disposed of his weapon in a 

nearby river, and proceeded to a friend’s home. Authorities quickly identified 

McIntosh as a suspect, leading them to interview him. McIntosh initially denied 

any knowledge of the events. When confronted with what officers knew, 

McIntosh revised his statement and alleged that while he shot Mullins, he 

acted in self-defense. 

Before trial, McIntosh moved for dismissal pursuant to KRS 503.085. 

KRS 503.085(1) provides that:

A person who uses force as permitted in KRS 503.050, 503.055, 

503.070, and 503.080 is justified in using such force and is 

immune from criminal prosecution and civil action for the use of 

such force, unless the person against whom the force was used is 

a peace officer, as defined in KRS 446.010, who was acting in the 

performance of his or her official duties and the officer identified 

himself or herself in accordance with any applicable law, or the 

person using force knew or reasonably should have known that the 

person was a peace officer. As used in this subsection, the term 

“criminal prosecution” includes arresting, detaining in custody, 

and charging or prosecuting the defendant.

The relevant portions of KRS 503.050 provide that:

(1) The use of physical force by a defendant upon another person is 

justifiable when the defendant believes that such force is necessary 

to protect himself against the use or imminent use of unlawful 

physical force by the other person.

(2) The use of deadly physical force by a defendant upon another 

person is justifiable under subsection (1) only when the defendant 

believes that such force is necessary to protect himself against 

death, serious physical injury, kidnapping, sexual intercourse 

compelled by force or threat, felony involving the use of force, or 

under those circumstances permitted pursuant to KRS 503.055.

...
3

(4) A person does not have a duty to retreat prior to the use of 

deadly physical force.

The relevant portion of KRS 503.055(3) states that:

A person who is not engaged in an unlawful activity and who is 

attacked in any other place where he or she has a right to be has 

no duty to retreat and has the right to stand his or her ground and 

meet force with force, including deadly force, if he or she 

reasonably believes it is necessary to do so to prevent death or 

great bodily harm to himself or herself or another or to prevent the 

commission of a felony involving the use of force.

The trial court reviewed Grand Jury testimony, police reports, witness 

statements, McIntosh’s statement, testimony from the preliminary hearing in 

Perry District Court and testimony from the prior bond reduction hearing in 

Perry Circuit Court. The court acknowledged that some facts could support 

either party, but based on the totality of the circumstances, the trial court 

found the Commonwealth had established probable cause that McIntosh’s use 

of force was unlawful. Accordingly, the trial court denied McIntosh’s motion to 

dismiss.

In January 2020, the Perry Circuit Court conducted a four-day jury trial. 

McIntosh’s central argument during the trial was that his actions were justified 

under KRS 503.050 and KRS 503.055. At the conclusion of the 

Commonwealth’s case-in-chief and again at the close of all evidence, McIntosh 

moved for a directed verdict arguing the Commonwealth had failed to establish 

he had not acted in self-defense. The trial court denied his motion.

The trial court, Commonwealth, and defense counsel agreed to an 

appropriate set of instructions for the jury, and the trial court provided them to 

the jury before closing argument. Relevant to this appeal, the jury was 
4

instructed on self-protection, murder, and the lesser included offenses of firstdegree manslaughter, second-degree manslaughter, and reckless homicide. 

While defense counsel objected to the instructions for the lesser included 

offenses of manslaughter and reckless homicide, he made no objection to the 

self-protection or murder instructions. Following closing arguments, the jury 

deliberated and returned a guilty verdict on the murder and tampering with 

physical evidence counts. The trial court denied McIntosh’s subsequent motion 

for judgment notwithstanding the verdict and sentenced him to twenty years’

imprisonment for murder and five years’ imprisonment for tampering with 

physical evidence to be served concurrently with each other. McIntosh now 

appeals arguing that the trial court’s failure to find him immune from 

prosecution under KRS 503.085 was reversible error.

II. ANALYSIS

“When a claim of immunity is raised under KRS 503.085, the 

prosecution may nonetheless proceed if the trial court believes ‘there is 

probable cause to conclude that the force used was not legally justified under 

the controlling provisions of KRS Chapter 503.’” Ragland v. Commonwealth, 

476 S.W.3d 236, 246 (Ky. 2015) (quoting Rodgers v. Commonwealth, 285 

S.W.3d 740, 754 (Ky. 2009)). “Because immunity is designed to relieve a 

defendant from the burdens of litigation, it is obvious that a defendant should 

be able to invoke KRS 503.085(1) at the earliest stage of the proceeding.” 

Rodgers, 285 S.W.3d at 755. KRS 503.085 provides a procedural exception to 
5

the general rule that trial courts do not dismiss indictments prior to trial. Id. at 

753.

The burden to establish probable cause that the defendant’s use of force 

was not lawful is on the Commonwealth. Id. at 755. To do so, the 

Commonwealth may direct the trial court to evidence of record, but the 

defendant is not entitled to an evidentiary hearing. Id. Importantly, we noted in 

Rodgers, an appellate court’s review of a trial court’s application of KRS 

503.085 is “purely academic” when the defendant has been “tried and 

convicted by a properly instructed jury.” Id. at 756. “When a jury has already 

convicted the defendant—and, thus, found that his use of physical force in fact 

was unlawful beyond a reasonable doubt—and that conviction has not been 

shown to be flawed, the appellate court will not revisit whether there was 

probable cause to believe that a defendant's use of force was unlawful to allow 

prosecution under KRS 503.085.” Ragland, 476 S.W.3d at 246 (emphasis 

added).1

McIntosh alleges no error aside from the trial court’s misapplication of 

the immunity provided by KRS 503.085. The evidence in the record shows no 

 

1 We have reviewed the merits of a trial court’s KRS 503.085 immunity decision 

when the defendant’s conviction lacked a proper jury determination. See, e.g., Truss v. 

Commonwealth, 560 S.W.3d 865 (Ky. 2018) (reviewing merits of immunity challenge 

after holding there was reversible error in jury selection and case would be remanded 

for new trial); Wright v. Commonwealth, No. 2016-SC-000089-MR, 2017 WL 639386 

(Ky. Feb. 16, 2017) (reviewing after defendant reserved right to appeal immunity 

determination as part of plea agreement); Ragland, 476 S.W.3d 236 (reviewing 

immunity after holding that jury instructions on self-protection were erroneous); 

Commonwealth v. Lemons, 437 S.W.3d 708 (Ky. 2014) (reviewing immunity 

determination after the defendant’s Alford plea which expressly reserved his right to 

appeal the standard used by the trial court to determine probable cause).
6

error, nor does McIntosh himself assert any error, in the jury instructions or 

the jury composition. There is no other basis to believe the jury did not 

consider his self-defense argument before finding him guilty of murder. Based 

on this Court’s prior precedent and the lack of any reversible error in his 

conviction, we will not review this issue.2

III. CONCLUSION

For the foregoing reasons, the judgment of the Perry Circuit Court is 

affirmed.

All sitting. All concur. 

 

2 We note that we recently decided Skinner v. Commonwealth, No. 2019-SC0589-MR, 2021 WL 732963 (Ky. Mar. 3, 2021), where we stated that “considering the 

seriousness of the alleged errors and fact-intensive issues raised by Skinner, we will 

review the trial court’s denial of his immunity motion.” Id. at *1. While we chose to 

analyze the merits of Skinner’s probable cause argument without the requisite finding

of an underlying error, even in that case we recognized our prior precedent instructed 

us not to do so. 
7

COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Aspen Caroline Carlisle Roberts

Assistant Attorney General

James Daryl Havey

Assistant Attorney General