RENDERED: NOVEMBER 18, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1453-MR

AARON TUSSEY APPELLANT

APPEAL FROM BOYD CIRCUIT COURT

v. HONORABLE JOHN F. VINCENT, JUDGE

ACTION NO. 21-CR-00071

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

MAZE, JUDGE: Aaron Tussey (Tussey) appeals from the final judgment and 

sentence of imprisonment entered by the Boyd Circuit Court upon a jury trial and 

subsequent penalty phase resulting in convictions for burglary III and persistent 

felony offender I with a sentence of eighteen years to serve.
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On appeal, Tussey argues that the trial court erred during the penalty 

phase of the trial by permitting the Commonwealth’s Attorney to read his previous 

convictions to the jury. Further, he asserts that the court erred by allowing a 

probation and parole officer to testify directly from her notes without laying a 

proper foundation. Having reviewed the record and the relevant law in this case, 

we find no error and therefore, we affirm.

I. BACKGROUND

On May 6, 2020, Tussey accepted the Commonwealth’s offer on a 

plea of guilty to theft by unlawful taking over $500, arising out of allegations that 

he entered Rural King and removed merchandise from the premises. As a 

condition of that agreement, he was not to be on Rural King property. The court 

incorporated that condition into its Order of Probation/Conditional Discharge, 

entered the following day.

Nevertheless, on March 4, 2021, Boyd County deputies were 

dispatched to Rural King regarding a shoplifter who allegedly concealed items on 

the premises. However, prior to their arrival, they were advised that the suspect 

had fled the scene. When a vehicle matching that of the fleeing suspect was 

located, deputies apprehended Tussey in possession of property stolen from Rural 

King.
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On March 11, 2021, Tussey was charged by way of a criminal 

information with third-degree burglary. Thereafter, on September 14, 2021, he 

was indicted by a Boyd County Grand Jury on a single count of theft by unlawful 

taking/disposition, $500.00 or more, and a single count of being a persistent felony 

offender, first degree. His trial on these charges commenced on October 11, 2021.

Catherine Rakes, a department specialist with Rural King testified that 

she personally witnessed Tussey stuffing empty shopping bags into his pockets. 

She then saw him place merchandise in those bags. She contacted customer 

service and asked them to call 911.

Jessica Goats then testified to witnessing Tussey stuffing a band saw 

down his coat. She also indicated that she saw him sticking other items in empty 

shopping bags, as well as into his coat.

Deputy Mark Wheeler testified that he and Deputy Zach Mitchell 

were dispatched to Rural King to investigate a theft. Prior to arrival, they were 

advised that the suspect had fled in a white Chevy Equinox with a rolled up 

temporary tag. Deputy Mitchell ultimately located the vehicle and Wheeler joined 

him for the traffic stop.

At that time, Tussey admitted that he was not supposed to be at Rural 

King. Tussey’s wife gave consent to search the vehicle. Wheeler testified that he 
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found two plasma cutters. Rural King employees confirmed that two plasma 

cutters were missing from the store. Tussey was then arrested.

Based upon the testimony and evidence presented, the jury found 

Tussey guilty of third-degree burglary and not guilty of theft by unlawful taking 

$500 or more. The trial then proceeded to the penalty phase. The Commonwealth 

presented certified copies of Tussey’s prior convictions and probation and parole 

officer, Stephanie Kenley testified. Based upon the testimony and evidence 

presented, the jury fixed Tussey’s punishment for the offense of third-degree 

burglary at five years and found him guilty of being a persistent felony offender, 

first degree, enhancing his sentence to eighteen years.

II. STANDARD OF REVIEW:

Tussey concedes that neither of the errors he alleges were preserved. 

When error is unpreserved, 

[w]e review each alleged error under [Kentucky Rule of 

Criminal Procedure] 10.26, in which relief may be 

granted upon a showing of ‘palpable error.’ A finding of 

palpable error requires a showing that the alleged error 

affected the ‘substantial rights’ of a defendant, for whom 

relief may be granted ‘upon a determination that manifest 

injustice has resulted from the error.’ To find manifest 

injustice, the reviewing court must conclude that the error 

so seriously affected the fairness, integrity, or public 

reputation of the proceeding as to be ‘shocking or 

jurisprudentially intolerable.’

Conrad v. Commonwealth, 534 S.W.3d 779, 783 (Ky. 2017) (citations omitted).
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III. READING OF PRIOR CONVICTIONS:

In this case, the Commonwealth offered certified copies of Tussey’s 

nine prior convictions as Commonwealth’s Exhibit Nine. When asked if he had 

any objection, Tussey’s trial counsel responded that he did not. The 

Commonwealth then proceeded to read those convictions. Kentucky Revised 

Statute (KRS) 532.055(2)(a)(1)-(7) sets forth the appropriate subject matter for the 

Commonwealth’s penalty phase case. Specifically included are such details of 

prior offenses as provided by the prosecutor in this case. She recited the case 

number, the charged offense, the disposition (i.e., whether by plea or conviction),

and the sentence. This process took approximately four minutes. At no time did 

Tussey’s trial counsel object.

In Webb v. Commonwealth, 387 S.W.3d 319, 330-31 (Ky. 2012), 

although the Court recognized that it is preferable for the trial court to read the 

“elements” of the prior convictions into the record, it held that the Commonwealth 

may still do so by agreement of the parties. However, to avoid any “confusion” the 

court should explain “to the jury so it understands [that] the prosecutor is not a 

witness, but rather an attorney who is reading agreed-upon, stipulated evidence.” 

In the absence of agreement, “the Commonwealth is left with two options: (1) the 

judge may read the elements of the crime(s), or (2) the Commonwealth may call a 

witness to testify as to the elements of the crime(s) committed as reflected in prior 
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judgments.” However, the Court specifically found that, “[w]e discern no 

constitutional due process violation, without more, with the mere reading by the 

prosecutor to the jury of the elements of the prior offenses.” Id. at 330. Since 

Tussey’s trial counsel specifically stated that he had no objection and then made no 

effort to challenge the Commonwealth’s method of introducing the prior 

convictions, the lower court had no obligation to act on its own initiative. 

Therefore, this Court finds no palpable error. Lamb v. Commonwealth, 510 

S.W.3d 316, 325 (Ky. 2017). 

IV. PROBATION AND PAROLE OFFICER’S TESTIMONY:

Probation and Parole Officer Stephanie Kenley testified that she has 

been with the Department of Corrections for five and a half years. She was asked 

by the Commonwealth to distinguish between probation and parole. She was 

asked about the factors used to determine parole eligibility. She was also asked 

about the different types of good time credit and how such credit might be gained 

or lost. She was specifically asked about Tussey’s eligibility given his conviction 

for third-degree burglary and potential convictions for persistent felony offender, 

first or second degree. She was also asked about the effect of the fact that he was 

on probation at the time of the offense for which he was being tried. She was able 

to answer each question asked, and she did so by quite obviously reading from her 

notes. When given the opportunity to cross-examine her, Tussey’s trial counsel 
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merely asked her about the loss of good time credit for disciplinary violations. She 

answered this question too, by reading directly from her notes.

In Disabled American Veterans, Department of Kentucky, Inc. v. 

Crabb, 182 S.W.3d 541 (Ky. App. 2005), the Court discussed at great length the 

distinction between a present recollection refreshed pursuant to Kentucky Rule of 

Evidence (KRE) 612 and a past recollection recorded pursuant to KRE 803(5). 

While a writing may be used for either purpose, there are differing foundational 

requirements and the document itself will be treated differently for evidentiary 

purposes. 182 S.W.3d at 551-52.

Tussey has cited this Court to the case of Martin v. Commonwealth,

456 S.W.3d 1 (Ky. 2015), in support of his argument that the trial court erred by 

allowing Officer Kenley to testify by reading from her notes. In Martin, the Court 

held that if the witness were allowed to read from her notes during retrial “KRE 

803(5) becomes the controlling evidentiary rule, and a different, more burdensome, 

foundation is required for the reading of her notes to become admissible as 

substantive evidence.” Id. at 17. However, there is a significant difference 

between the facts of Martin and those presented to this Court. In Martin, defense 

counsel objected, and the trial court gave the Commonwealth the opportunity to lay 

a foundation for the witness’s use of her notes during testimony. Id. at 15-16. 

Once again, this Court notes that there was no objection, and the trial court had no 
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obligation to act sua sponte to force the Commonwealth to examine its witness in a 

certain manner. Under these circumstances, the Court can find no palpable error.

Accordingly, the Final Judgment and Sentence of Imprisonment of the 

Boyd Circuit Court are affirmed.

ALL CONCUR. 

BRIEF FOR APPELLANT:

Aaron Reed Baker

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky