RENDERED: OCTOBER 2, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0143-MR

RANDALL NORTHCUTT APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 18-CR-00131

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

KRAMER, JUDGE: Randall Ray Northcutt was convicted in Fayette Circuit 

Court of escape in the second degree1and of being a persistent felony offender in 

the first degree (“PFO I”). 2 He now appeals. Upon review, we affirm.

 

1

See Kentucky Revised Statute (“KRS”) 520.030.

2

See KRS 532.080(3).
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On May 9, 2014, Northcutt was convicted of third-degree burglary in 

Fayette Circuit Court and thereafter began serving a three-year sentence of 

incarceration. On September 1, 2017, he was released from prison and allowed to 

serve the remainder of his sentence3through participation in the Home 

Incarceration Program (“HIP”). As a condition of his home incarceration, 

Northcutt was required to wear an ankle bracelet and was prohibited from leaving 

the designated area where he was confined (i.e., his home at 1600 Clayton Avenue, 

and part of its curtilage, in Lexington, Kentucky) without permission of his HIP 

caseworker, Drew Chism. The ankle bracelet contained an electronic transmitter 

which, if broken, was designed to send an email notification of a “master tamper 

violation” to HIP.

Approximately three weeks after Northcutt began his participation in 

HIP, the electronic transmitter in his ankle bracelet was broken; HIP received an 

email to that effect. After verifying the master tamper violation through HIP’s 

monitoring website, Chism tried, unsuccessfully, to contact Northcutt by 

telephone. Thereafter, he attempted to locate Northcutt at Northcutt’s home 

address and was likewise unsuccessful. But, using geolocation software, Chism 

found Northcutt’s ankle monitor on a road outside the area where Northcutt had 

 

3 The record does not disclose when Northcutt’s three-year term commenced or when it would 

have otherwise ended, but Northcutt was undisputedly continuing to serve that term on 

September 27, 2017, when his ankle monitor was removed and he fell out of contact with HIP.
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been allowed to be under the terms of his HIP agreement. Upon finding it, Chism 

noted the ankle monitor’s strap had clearly been cut. Based upon Chism’s 

investigation, a warrant was issued for Northcutt’s arrest. Northcutt was 

eventually arrested on December 12, 2017, after authorities located him at 1880 

Dunkirk Drive in the Cardinal Valley area of Lexington, Kentucky – an area well 

outside the permitted vicinity of his home incarceration. 

Ultimately, Northcutt was indicted by a grand jury in Fayette Circuit 

Court for second-degree escape and PFO I. The PFO I charge was based on two 

underlying felony convictions: (1) Northcutt’s 2014 third-degree burglary 

conviction; and (2) Northcutt’s earlier conviction, in 2007, of second-degree 

burglary. The case proceeded to a jury trial on November 27, 2018; Northcutt 

elected to present no evidence at trial, and the Commonwealth’s evidence was 

consistent with what is set forth above. Upon the conclusion of the guilt phase of 

the trial, the jury found Northcutt guilty of second-degree escape. Prior to the 

completion of the penalty phase of trial, Northcutt entered a conditional plea of 

guilty to the PFO I charge. Pursuant to his conditional plea, Northcutt reserved the 

right to raise the issues presented in this appeal, and the Commonwealth 

recommended the minimum sentence of one year on the second-degree escape 

conviction, enhanced to the minimum 10 years by the PFO I conviction. On 

January 15, 2019, the trial court rendered its final judgment sentencing Northcutt 
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to 10 years’ imprisonment. Northcutt now appeals. Additional facts will be 

discussed as necessary. 

As to the substance of his appeal, Northcutt’s assumption throughout 

these proceedings has been that a prior felony conviction is an essential 

precondition of second-degree escape. And, armed with that assumption, 

Northcutt makes the following two arguments. 

First, Northcutt reasons that because second-degree escape must be 

predicated upon a prior felony conviction, it therefore qualifies as an “enhanced” 

offense. Based upon that, he argues, the rule prohibiting “double enhancement”

applies.4 In other words, he contends that if his prior felony conviction for thirddegree burglary was the basis for enhancing his escape charge to second-degree 

escape, his prior felony conviction for third-degree burglary could not also have 

been the basis for prosecuting him for PFO I. Therefore, he claims, it was error for 

the trial court to permit the Commonwealth to prosecute him for PFO I.

 

4

See Corman v. Commonwealth, 908 S.W.2d 122, 123 (Ky. App. 1995), explaining:

The rule is now established that when a single prior felony is 

utilized to create an offense or enhance a punishment at the trial of 

the second crime, that same prior felony cannot be used at that trial 

to prosecute the defendant as a persistent felony offender. If, 

however, the prior felony used to underlie PFO conviction is a 

separate prior felony from the one used to create the offense or 

enhance its punishment, the offense can be further enhanced under 

the PFO statute.

(Citations omitted.)
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Second, Northcutt reasons if all the jury needed to know (for purposes 

of finding him guilty of second-degree escape) was that he had been convicted of a

felony, then it was unnecessary for the Commonwealth to go into any further detail 

regarding the nature of his prior felony conviction. Accordingly, Northcutt argues, 

the trial court “prejudiced” his defense by denying his requests, as set forth in his 

motion in limine, to: (1) require the Commonwealth to accept his stipulation, made 

under the auspices of Old Chief v. United States,

5

“that he was a convicted felon 

subject to the rules of Probation and Parole”; and (2) “exclude at trial all other 

evidence introduced to prove [he] was a convicted felon.”

However, Northcutt’s assumption underlying his appeal is founded 

upon a misapprehension of the law: A prior felony conviction is not a precondition 

of second-degree escape because that offense “does not distinguish between 

different statuses of offenders based on past offenses.” Lawton v. Commonwealth, 

354 S.W.3d 565, 572 (Ky. 2011). Indeed, that much is apparent from a cursory 

reading of KRS 520.030, which sets forth the offense as follows:

(1) A person is guilty of escape in the second degree 

when he escapes from a detention facility or, being 

charged with or convicted of a felony, he escapes from 

custody.

(2) Escape in the second degree is a Class D felony.

 

5

519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
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From the plain language of this statute, a person who escapes from a 

detention facility, who was merely in the detention facility due to a misdemeanor

offense, is guilty of second-degree escape. See, e.g., Commonwealth v. Johnson, 

615 S.W.2d 1 (Ky. App. 1981).

A person who escapes from custody, who was in custody merely due 

to a felony charge, is guilty of second-degree escape. See, e.g., Weaver v. 

Commonwealth, 156 S.W.3d 270 (Ky. 2005).

Moreover, under the Kentucky Supreme Court’s interpretation of this 

statute, a person convicted of a felony is guilty of second-degree escape if, and only 

if, that person escapes from custody while serving a felony sentence. See Lawton, 

354 S.W.3d at 573. Thus, a convicted felon who is not serving a felony sentence

would not be guilty of second-degree escape if he or she is taken into custody due 

to a misdemeanor offense and, while in custody (as opposed to a detention 

facility), then escaped.

Accordingly, it is apparent that Northcutt’s first argument set forth 

above, founded upon his incorrect assumption of second-degree escape, lacks

merit. There was no “double enhancement.”

His second argument also lacks merit. To review, Northcutt argues

the trial court “prejudiced” his defense by denying his requests, as set forth in his 

motion in limine, to: (1) require the Commonwealth to accept his stipulation, made 
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under the auspices of Old Chief, “that he was a convicted felon subject to the rules 

of Probation and Parole”; and (2) “exclude at trial all other evidence introduced to 

prove [he] was a convicted felon.” At the onset, however, we note that even where 

our Courts have applied the rule of Old Chief, we have explained that a violation of 

that rule does not automatically warrant reversal. Specifically:

In Anderson v. Commonwealth, [281 S.W.3d 761

(Ky. 2009), the Kentucky Supreme Court] adopted the 

limited holding from Old Chief, that “a defendant 

charged with being a felon in possession of a firearm 

may stipulate to having a prior felony conviction, even

without the Commonwealth’s consent.” 281 S.W.3d 761, 

762 (Ky. 2009). In Anderson, the defendant was charged 

with possession of a handgun by a convicted felon and 

the Commonwealth sought to introduce evidence of 

Anderson’s prior felony conviction for receiving stolen 

property and escape. Id. Anderson offered to stipulate to 

being a convicted felon to avoid potential prejudice from 

disclosing the details of his prior convictions, but the trial 

court denied his request. Id. at 762-63. The 

Commonwealth introduced the details to the jury, and 

Anderson was ultimately convicted of the firearm 

possession charge. Id. at 763.

In Old Chief, the United States Supreme Court 

acknowledged “that evidence of the name or nature of the 

prior offense generally carries a risk of unfair prejudice 

to the defendant.” 519 U.S. at 185, 117 S.Ct. 644. 

Further, the Court concluded that “there is no cognizable 

difference between the evidentiary significance of an 

admission and of the legitimately probative component of 

the official record the prosecution would prefer to place 

in evidence.” Id. at 191, 117 S.Ct. 644. In Anderson, 

this Court decided to join the overwhelming majority of 

courts by adopting Old Chief, and holding that:
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upon request, a criminal defendant charged 

with being a felon in possession of a firearm 

may stipulate (with the Commonwealth’s 

agreement) or admit (if the Commonwealth 

does not agree) that the defendant has been 

previously convicted of a felony. Such a 

stipulation or admission would mean that the 

jury would simply be informed that the 

defendant was a convicted felon, for 

purposes of the felon in possession of a 

firearm charge, but would not be informed 

of the specifics of the defendant’s previous

felony conviction(s).

281 S.W.3d at 766.

. . . . However, “no error . . . or defect in any 

ruling . . . is ground for granting a new trial or for setting 

aside a verdict . . . unless it appears to the court that the 

denial of such relief would be inconsistent with 

substantial justice.” Id. (quoting Kentucky Rule of 

Criminal Procedure (RCr) 9.24). “A non-constitutional 

evidentiary error may be deemed harmless . . . if the 

reviewing court can say with fair assurance that the 

judgment was not substantially swayed by the error.” 

Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 

(Ky. 2009).

 

Ward v. Commonwealth, 568 S.W.3d 824, 835-36 (Ky. 2019).

In Ward, for example, the defendant’s proffered stipulation was 

disallowed by the trial court; the rule of Old Chief was deemed violated, but 

nevertheless, any resulting error was deemed harmless because:

At trial, the Commonwealth introduced very little 

evidence about Ward’s prior felony conviction. A single 

witness who obtained certified copies of Ward’s criminal 

record testified that Ward was convicted of first-degree 
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robbery in Jefferson County, that he entered a guilty plea, 

and provided the date of the offense. No other

information was given. . . . The jury was not given any 

violent details, or even any information regarding what 

constitutes first-degree robbery. We cannot say that 

“there was a reasonable possibility that the jury’s 

knowledge of [Ward’s] specific prior convictions might 

have contributed to his conviction any more than their 

general knowledge of his status as a convicted felon 

would have.” Anderson, 281 S.W.3d at 767. While the 

trial court’s denial of Ward’s request to stipulate his 

convicted felon status was error, it was harmless.

Id. at 836.

Here, beyond noting that the trial court denied his request to stipulate 

during trial “that he was a convicted felon subject to the rules of Probation and 

Parole,” Northcutt does not explain how the trial court otherwise “prejudiced” his 

case. Moreover, we cannot say “there was a reasonable possibility that the jury’s 

knowledge of [Northcutt’s] specific prior convictions might have contributed to his 

conviction any more than their general knowledge of his status as a convicted felon 

would have.” Anderson, 281 S.W.3d at 767. When the Commonwealth informed 

the jury of Northcutt’s prior felony conviction, it only did so during Officer 

Chism’s testimony, and to the following extent: 

COMMONWEALTH: In case number 14-CR-264, out 

of the Fayette Circuit Court, the date of the offense is 

February 10th of 2014. The offense is burglary in the 

third degree. The defendant’s name is “Randall Ray 

Northcutt.” The date the judgment was entered was May 

9th of 2014 and he was sentenced to three years. And so, 

he was released on that sentence to the home 
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incarceration program, and you were supervising him on 

that?[6]

OFFICER CHISM: Yes, ma’am.

COMMONWEALTH: And remind me what date it was 

that he was released?

OFFICER CHISM: September 1st of 2017.

Like Ward, the jury in this matter was only informed of the name of 

Northcutt’s prior felony offense and the dates associated with it (i.e., the date he 

committed the offense, was convicted of it, and was later released to HIP while 

serving his sentence). The jury was not given any violent details of his prior 

offense, much less any information regarding what constitutes third-degree 

burglary. Thus, if the trial court erred in denying Northcutt’s request to stipulate 

“that he was a convicted felon subject to the rules of Probation and Parole,” its 

error was harmless. 

However, the trial court’s denial of Northcutt’s motion did not

constitute error, and for at least three reasons. First, to the extent the rule of Old 

Chief has been adopted in Kentucky, its application has been limited to 

prosecutions of a specific type of status offense; namely, “where the defendant 

 

6 The trial court only permitted the Commonwealth to read this portion of Northcutt’s prior 

judgment to the jury. The jury was not permitted to see Northcutt’s judgment.
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stands charged with being a felon in possession of some type of firearm[.]”

7

 Here, 

Northcutt was charged with second-degree escape, which is not a status offense.

Second, where – as here – the Commonwealth elects to prosecute a 

defendant for second-degree escape based upon a theory that he or she escaped 

from custody while charged with a felony or serving a felony sentence,

8

the 

 

7 Anderson, 281 S.W.3d at 766. More fully, the Anderson Court explained:

We recognize that defendants may wish to admit or stipulate to previous 

convictions or other matters in situations not involving felon in possession of a 

handgun charges, such as cases involving PFO charges. But the application of 

Old Chief’s rationale to other cases and situations has not been argued by the 

parties to this case and, thus, is not properly before us. And the United States 

Supreme Court has not expressly extended Old Chief to other scenarios. So we 

emphasize that our holding today is limited only to cases like the one at hand—

where the defendant stands charged with being a felon in possession of some type 

of firearm—and should not be construed as a license for criminal defendants 

unilaterally to admit over the Commonwealth’s objection any other factors or 

elements of the Commonwealth’s case that the defendant wishes to conceal from 

the jury. Thus, in all other circumstances where a defendant’s status as a 

convicted felon is relevant, such as PFO proceedings, courts should continue to 

rely upon our previous holding that “the prosecution is permitted to prove its case 

by competent evidence of its own choosing, and the defendant may not stipulate 

away the parts of the case that he does not want the jury to see.”

Id. (footnotes omitted).

8

“Based on the facts, the prosecutor has a certain amount of discretion in how he or she charges 

[second-degree] escape.” Lawton, 354 S.W.3d at 567. As noted, Lawton provides that HIP 

qualifies as both “custody” and a “detention facility” for purposes of second-degree escape. 

Here, while it certainly caused no prejudice to Northcutt, the Commonwealth’s case against 

Northcutt apparently combined those theories. Specifically, the jury was instructed:

 

You will find the Defendant guilty of Escape, Second Degree under this 

Instruction if, and only if, you believe from the evidence beyond a reasonable 

doubt all of the following:

A. That in this county on or about September 25, 2017, and before 

the finding of the Indictment herein, the Defendant was serving a 

sentence for Burglary, Third Degree, a Class D Felony, when he 
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Kentucky Supreme Court has held that the Commonwealth has a duty to prove 

what the felony charge or conviction was. See Cohron v. Commonwealth, 306 

S.W.3d 489, 495-96 (Ky. 2010), explaining:

Since it bore the burden of proof, the 

Commonwealth had the responsibility to present 

evidence of the fact that Cohron was in custody on June 

12 on a charge or conviction of a felony offense. Since 

this is what separates second-degree escape from thirddegree escape, the fact that Cohron had been charged 

with felonies at the time of the June 12 escape was an 

element that had to be proved beyond a reasonable doubt. 

Because there was a total absence of evidence of that 

element, the jury could only surmise what the June 9 

charges were. 

We do not believe it is obvious to an average 

person what charges are felonies and what are 

misdemeanors, particularly when the offenses charged 

were not specifically enumerated for the jury.

(Emphasis added.)

Third, the latter part of Northcutt’s proffered stipulation (i.e., that he 

was “subject to the rules of Probation and Parole”) was a misrepresentation. 

Northcutt was under home incarceration, not “Probation and Parole.” Among the 

 

escaped from 1600 Clayton Avenue, Lexington, Kentucky, the 

home designated in the Defendant’s Home Incarceration Program 

agreement;

AND

B. That at the time of his escape, the Defendant had been confined 

to 1600 Clayton Avenue, Lexington, Kentucky under the terms of 

the Home Incarceration Program and his absence therefrom was 

not authorized by the terms of the Home Incarceration Program.
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many salient differences between those two forms of rehabilitation, a defendant on 

probation or parole is not considered to be in “custody” for purposes of any 

“escape” offense. See KRS 520.010(2). Whereas, a defendant on “home 

incarceration” is not only considered to be in “custody,” but is also considered to 

be incarcerated in a “detention facility” for purposes of KRS 520.030. See Lawton, 

354 S.W.3d at 569-70.

In short, the trial court would have improperly undermined the 

Commonwealth’s case against Northcutt if it had granted Northcutt’s motion to (1) 

require the Commonwealth to accept his stipulation “that he was a convicted felon 

subject to the rules of Probation and Parole”; and (2) “exclude at trial all other 

evidence introduced to prove [he] was a convicted felon.” Therefore, it did not err 

by denying his motion.

We have reviewed the breadth of what Northcutt has asserted in this 

appeal, none of which indicates the Fayette Circuit Court erred in any respect. As 

such, we AFFIRM. 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Roy A. Durham, II

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

M. Brandon Roberts

Assistant Attorney General

Frankfort, Kentucky