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RENDERED: APRIL 27, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0550-MR

BARRY ELLIOTT APPELLANT 

V. 

ON APPEAL FROM LOGAN CIRCUIT COURT

HONORABLE JOE W HENDRICKS, JR., JUDGE

NO. 19-CR-00348

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

REVERSING AND REMANDING

The Logan Circuit Court held a one-day jury trial of Appellant Barry 

Elliott on charges of possession of a firearm by a convicted felon and being a 

persistent felony offender. Over the course of that single-day trial the 

Commonwealth made at least ten separate references to the jury regarding 

Elliott’s possession of drugs and related paraphernalia at the time of his arrest, 

despite the fact he was not currently on trial for those offenses. The 

Commonwealth also made five separate references explicitly stating or 

suggesting that Elliott was a drug dealer. The Commonwealth further made at 

least six references to other charges pending against Elliott that also were not 

at issue in the trial.
2

The jury convicted Elliott of possession of a firearm by a convicted felon 

and being a persistent felony offender and recommended the maximum legal 

enhanced sentence of twenty years. The trial court sentenced in conformity 

with that recommendation. Elliott now appeals to this Court as a matter of 

right. KY. CONST. § 110(2)(b). 

Following a careful review, we conclude the Commonwealth’s numerous 

references to Elliott’s possession of drugs and related paraphernalia, to his 

alleged occupation as a drug dealer, and to the other charges pending against 

him violated KRE1 404(b)’s prohibition against the admission of other crimes, 

wrongs, or acts for the purpose of proving character to show action in 

conformity therewith. We further conclude this was not harmless error and 

therefore reverse and remand for a new trial. 

FACTUAL AND PROCEDURAL BACKGROUND

The South Central Kentucky Drug Task Force conducted a drug 

investigation that revealed reason to believe Appellant Barry Elliott was 

trafficking drugs from a residence in Logan County. On September 24, 2019, 

the Task Force obtained a search warrant permitting a search of that residence 

for illegal drugs and other materials related to drug activity and drug 

trafficking.

In the course of executing the search warrant, the Task Force discovered 

Elliott in the residence. In the same room with Elliott were alleged 

methamphetamine, alleged marijuana, and a loaded and chambered shotgun. 

1 Kentucky Rule of Evidence
3

Elliott was arrested and ultimately indicted on charges of first-degree 

trafficking in a controlled substance, first-degree possession of a controlled 

substance, possession of marijuana, possession of drug paraphernalia, 

possession of a firearm by a convicted felon, and being a first-degree persistent 

felony offender (“PFO”). 

The trial court properly severed the firearm and PFO charges from the 

remaining drug-related charges arising from Elliott’s arrest. The 

Commonwealth proceeded with trial on the firearm and PFO charges. Though 

the drug-related charges therefore were not at issue, the Commonwealth 

nonetheless made frequent references throughout the one-day trial to Elliott’s 

possession of drugs and drug paraphernalia at the time of his arrest, to his 

alleged occupation as a drug dealer, and to the other charges pending against 

him. In its opening statement, the Commonwealth told the jury it would see 

body cam footage from the search showing alleged drugs and other 

paraphernalia on a table and that Elliott had been arrested on charges other 

than those at issue in the trial. Witness testimony further referenced the drugs 

found during execution of the search warrant. Task Force Agent Fox informed 

the jury that during the search law enforcement found methamphetamine, 

digital scales commonly used to weigh drugs, and plastic bags consistent with 

the storage of illegal drugs. The jury also observed body cam footage of the 

search of the residence in which law enforcement noted the presence of illegal 

drugs. The Commonwealth also referenced the drugs found with Elliott at least 

three times during its closing argument and further stated “we don’t want 
4

people who are drug dealers . . . legally walking around with firearms,” and 

that “if you’re a drug dealer you don’t want someone taking . . . your drugs.” 

Agent Fox also testified to an incident following Elliott’s arrest in which 

Elliott asked Agent Fox to list the charges against him. Agent Fox testified that 

he then listed the “numerous charges” for Elliott. Defense counsel objected 

and moved for a mistrial, contending the proceedings had “turned into a 

trafficking trial.” The trial court denied the motion for a mistrial. Defense 

counsel then requested an admonition to the jury regarding the other-charges 

evidence, which the trial court provided.2 After the admonition, Agent Fox 

testified that when he informed Elliott one of the charges against him was 

possession of a firearm by a convicted felon, Elliott stated he was keeping the 

gun for his uncle.

The jury convicted Elliott of the firearm and PFO charges and 

recommended a sentence of five years enhanced to the legal maximum of 

twenty years. Elliott filed a motion for a new trial alleging he was prejudiced by 

admission of evidence regarding the drug-related charges. The trial court 

denied that motion and sentenced in conformity with the jury’s 

recommendation. Elliott now appeals.

ANALYSIS

Elliott argues that the trial court’s admission of numerous drug-related 

statements and evidence at trial violated KRE 404(b). Elliott stated timely 

objections to the admission of such evidence and thus his allegation of error is 

2 See supra Part III.
5

preserved.3 KRE 103(a)(1); RCr4 9.22; Daniel v. Commonwealth, 607 S.W.3d 

626, 632 (Ky. 2020) (noting that alleged error “was properly preserved for our 

review by [appellant’s] objection to the evidence on . . . KRE 404(b) grounds.”). 

Under KRE 404(b), evidence of other crimes, wrongs, or acts “is not 

admissible to prove the character of a person in order to show action in 

conformity therewith.” As we have previously noted, 

[t]he reasons for the rule are salutary. Ordinarily, such evidence 

does not tend to establish the commission of the crime. It tends 

instead to influence the jury, and the resulting prejudice often 

outweighs its probative value. Ultimate fairness mandates that an 

accused be tried only for the particular crime for which he is 

charged. An accused is entitled to be tried for one offense at a 

time, and evidence must be confined to that offense. The rule is 

based on the fundamental demands of justice and fair play.

O’Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982) (citation omitted).5

Evidence of other crimes, wrongs, or acts may be admissible, however, 

for another purpose, such as proving “motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1). 

3 Four of the thirty-seven drug-related references at trial cited by Elliott in his 

brief involve introduction of evidence of his prior conviction for trafficking in cocaine. 

Elliott did not object to the admission of that particular evidence at trial, perhaps for 

the obvious reason that a prior felony conviction was an essential element of the 

Commonwealth’s proof for possession of a firearm by a convicted felon. See Kentucky 

Revised Statutes (“KRS”) 527.040. Elliott also presents no specific written argument of 

error as to the admission of that evidence in his briefing to this Court. In any event, we 

note that the admission of evidence of his prior felony conviction was not erroneous 

given that such evidence was an essential element of the Commonwealth’s proof on the 

charge of possession of a firearm by a convicted felon. 

4 Kentucky Rules of Criminal Procedure

5 Though O’Bryan predates our adoption of the current Kentucky Rules of 

Evidence, its statement of the purpose of excluding evidence of other crimes, wrongs, or 

acts is in accord with the purposes of KRE 404(b). Clark v. Commonwealth, 223 S.W.3d 

90, 96 n.12 (Ky. 2007). 
6

Such evidence may also be admissible “[i]f 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.” KRE 

404(b)(2). KRE 404(b) is “‘exclusionary in nature’” and thus these exceptions 

“‘should be ‘closely watched and strictly enforced’” given their “‘dangerous 

quality and prejudicial consequences.’” Graves v. Commonwealth, 384 S.W.3d 

144, 147-48 (Ky. 2012) (quoting Clark, 223 S.W.3d at 96). We review a trial

court’s decision to admit evidence under KRE 404(b) for abuse of discretion. 

Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).

I. The trial court did not err in admitting evidence that law 

enforcement discovered the charged offense in the course of 

executing a search warrant obtained in connection with a drug 

investigation.

Elliott first contends the trial court erred in admitting evidence that law 

enforcement discovered the firearm at issue while executing a search warrant 

obtained in connection with the Drug Task Force investigation. We disagree.

As noted above, KRE 404(b)(2) permits the admission of evidence of other 

crimes, wrongs, or acts where they are so inextricably intertwined with 

evidence essential to the crime charged that separating the two would result in 

serious adverse effect on the offering party. One such circumstance arises 

where evidence of the other crime, wrong, or act is necessary to allow the 

Commonwealth to “paint an accurate picture” of the context and events 

surrounding the charged offense: 

“One of the accepted bases for the admissibility of evidence of other 

crimes arises when such evidence ‘furnishes part of the context of 

the crime’ or is necessary to a ‘full presentation’ of the case, or is 
7

so intimately connected with and explanatory of the crime charged 

against the defendant and is so much a part of the setting of the 

case and its ‘environment’ that its proof is appropriate in order ‘to 

complete the story of the crime on trial by proving its immediate 

context or the “res gestae”’ or the ‘uncharged offense is “so linked 

together in point of time and circumstances with the crime charged 

that one cannot be fully shown without proving the other . . . .”

[and is thus] part of the res gestae of the crime charged.’”

Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (quoting Norton v. 

Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994)). In other words, “the 

Kentucky Rules of Evidence are ‘intended to be flexible enough to permit the 

prosecution to present a complete, un-fragmented, un-artificial picture of the 

crime committed by the defendant, including necessary context, background 

and perspective.’” Id. at 328 (quoting Major v. Commonwealth, 177 S.W.3d 700, 

708 (Ky. 2005)).

We have previously held that consistent with KRE 404(b)(2)’s provision 

for the admission of evidence to provide necessary background and context, the 

Commonwealth may present proof that the defendant was the subject of a drug 

investigation arising from other crimes, wrongs, or acts to explain why law 

enforcement focused its attention upon the defendant. Peyton v. 

Commonwealth, 253 S.W.3d 504, 516 (Ky. 2008) (“[T]estimony explaining why a 

defendant had become a suspect in a drug investigation is relevant . . . to avoid 

any implication that the defendant was unfairly singled out in the drug sting 

operation and to explain why the defendant was targeted.”); see also Gordon v. 

Commonwealth, 916 S.W.2d 176, 179 (Ky. 1995) (“[I]t was not improper to 

admit evidence that appellant had become a suspect in the county-wide drug 

investigation. This avoided any implication that appellant had been unfairly 
8

singled out . . . .”). We have similarly held that the Commonwealth may 

present proof of warrants relating to other crimes, wrongs, or acts where the 

execution of those warrants provides the context in which law enforcement 

discovered the charged offense. Kerr v. Commonwealth, 400 S.W.3d 250, 262-

63 (Ky. 2013) (“The existence of the arrest warrants here was necessary to an 

adequate understanding of the context of the officers’ conduct . . . [and] 

provided the setting and context of the discovery of the crime. Excluding the 

reason why police were observing [the defendant] and why they arrested him,

thereby gaining access to the contraband, would have left the jury with an 

incomplete and fragmented picture of the circumstances surrounding how the 

[charged offense] was discovered.”). 

Here, we find no error in the trial court’s admission of evidence that 

Elliott was the subject of a Drug Task Force investigation or that the firearm 

offense was discovered in the execution of a search warrant resulting from that 

investigation. That Elliott was the subject of a drug investigation provided the 

jury with necessary context to understand why law enforcement focused its 

attention upon him, thereby avoiding the creation of an inaccurate 

misperception that law enforcement lacked a basis for doing so. Evidence that 

law enforcement executed a search warrant resulting from the drug 

investigation similarly explained to the jury how law enforcement discovered 

the firearm at issue. Accordingly, because evidence of the drug investigation 

and resulting search warrant was necessary to allow the Commonwealth to 

“paint an accurate picture” of the background and context of the charged 
9

offense of possession of a firearm by a convicted felon, the trial court did not 

abuse its discretion in admitting that evidence. 

II. The trial court abused its discretion in admitting voluminous 

evidence that Elliott was in possession of drugs and related 

paraphernalia when arrested and that Elliott was a drug dealer.

While we therefore discern no error in the trial court’s admission of 

evidence of the drug investigation and resulting search warrant, we conclude 

the trial court abused its discretion in admitting voluminous evidence that 

Elliott possessed drugs and related paraphernalia at the time of his arrest and 

that he was a drug dealer. We note that, unlike the Drug Task Force 

investigation and search warrant, evidence of Elliott’s alleged occupation as a 

drug dealer and possession of drugs and paraphernalia at the time of arrest 

was not admissible under KRE 404(b)(2). First, such evidence was not 

necessary to explain why law enforcement focused on Elliott or how it 

discovered the charged firearm offense. Indeed, evidence of the drug 

investigation and search warrant already accomplished that purpose. Second, 

suppression of evidence of Elliott’s possession of drugs and occupation as a 

drug dealer would not have necessarily also resulted in suppression of evidence 

relating to the firearm charge. See Metcalf v. Commonwealth, 158 S.W.3d 740, 

743-44 (Ky. 2005) (noting that evidence is “inextricably intertwined” when it 

would be necessary to suppress evidence relating to the charged offense in 

order to exclude evidence of the other crime, wrong, or act). To the contrary, 

the trial court could have excluded all reference to Elliott’s possession of the 

drugs and related paraphernalia and alleged occupation as a drug dealer 
10

without limiting proof that Elliott possessed a firearm while he was a convicted 

felon. As such, the evidence was not inextricably intertwined with the charged 

offense so as to warrant admission under KRE 404(b)(2).

We therefore must consider whether evidence that Elliott possessed 

drugs and was a drug dealer was nonetheless admissible under KRE 404(b)(1). 

In determining whether to admit evidence of other crimes, wrongs, or acts 

under KRE 404(b), a trial court must consider the three factors of relevance, 

probativeness, and prejudice as set forth in Bell v. Commonwealth, 875 S.W.2d 

882 (Ky. 1994). That is, the trial court must consider 1) whether the proffered 

evidence is relevant for some purpose other than to prove the defendant’s 

criminal disposition, 2) whether evidence of the other crime, wrong, or act is 

sufficiently probative of its commission by the defendant, and 3) whether the 

potential prejudice from admission of the proffered evidence substantially 

outweighs its probative value. Id. at 889-91. In considering these factors, the 

trial court “must apply [KRE 404(b)] cautiously, with an eye towards 

eliminating evidence which is relevant only as proof of an accused’s propensity 

to commit a certain type of crime.” Id. at 889.

The first Bell factor of relevance requires a trial court to determine 

whether admission of the evidence of other crimes, wrongs, or acts would be in 

furtherance of one of the permissible purposes under KRE 404(b)(1). 

Southworth v. Commonwealth, 435 S.W.3d 32, 49 (Ky. 2014). Here, evidence of 

Elliott’s possession of drugs and related paraphernalia and alleged occupation 

as a drug dealer was relevant because it established a motive for his unlawful 
11

possession of the firearm. More particularly, Elliott’s proximity to drugs and 

related paraphernalia and alleged occupation as a drug dealer had a tendency 

to establish a motive for his possession of the firearm, namely to protect 

himself from those who might seek to steal the drugs or trafficking-related 

money. Thus, the evidence was relevant for some purpose other than 

establishing criminal disposition, namely to establish that Elliott had a motive 

to possess the firearm despite being a convicted felon. See Webb, 387 S.W.3d 

at 328 (“Crimes often have a set of surrounding circumstances which help shed 

light on aspects such as motive and intent.”). 

The evidence also satisfied the Bell factor of probativeness, which 

requires the trial court to determine whether the evidence is sufficiently 

probative of the defendant’s commission of the other alleged crimes, wrongs, 

and acts, i.e. whether “the jury could reasonably conclude that the act[s] 

occurred and that the defendant was the actor.” Davis v. Commonwealth, 147 

S.W.3d 709, 724-25 (Ky. 2004). Here, body cam footage depicted the alleged 

drugs and related paraphernalia present at the time of Elliott’s arrest. 

Moreover, the jury could reasonably conclude from the evidence that Elliott 

was a drug dealer, given his prior trafficking conviction. Thus, the evidence 

also satisfied the requirement of probativeness.

Even where evidence of other crimes, wrongs, or acts satisfies the first 

two Bell factors of relevance and probativeness, however, a trial court must 

also consider whether “the tendency of the evidence [is] so strongly to lead the 

jury into improper character inferences that that tendency ‘substantially 
12

outweigh[s] [the evidence’s] probative value’ with regard to its proper uses.” 

Jenkins v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016) (quoting Bell, 875 

S.W.2d at 890). Moreover, a trial court’s duty as evidentiary gatekeeper does 

not end even if the trial court has found all three Bell factors satisfied. Rather, 

the trial court must continue to carefully guard against a use of such evidence 

beyond its permissible purposes resulting in undue prejudice to the defendant. 

Brown v. Commonwealth, 983 S.W.2d 513, 516 (Ky. 1999) (“Even where 

evidence of a prior crime has some relevance, the trial judge must use some 

discretion in deciding to what extent the prior bad act may be utilized without 

prejudice.”).

Here, while evidence of Elliott’s possession of drugs and related 

paraphernalia and alleged occupation as a drug dealer was relevant and 

probative, we nonetheless conclude the trial court abused its discretion in 

allowing the repetitious and cumulative admission of that evidence far beyond 

what was necessary to establish Elliott’s motive to unlawfully possess the 

firearm. As we have repeatedly noted, admission of evidence of other crimes, 

wrongs, or acts is “inherently and highly prejudicial to a defendant” because 

“[i]t is very difficult for jurors to sift and separate such damaging information to 

avoid the natural inclination to view it as evidence of a defendant’s criminal 

disposition.” Bell, 875 S.W.2d at 890. Elliott was not on trial for either drug 

possession or drug trafficking, but rather only for possession of a firearm by 

convicted felon. While evidence that he possessed drugs and related 

paraphernalia and was a drug dealer were relevant to establish his motive for 
13

possessing the firearm, those facts could have been established without undue 

prejudice by limited references during opening and closing statements and 

limited testimonial proof. It was thus incumbent on the trial court to ensure 

that the admission of such evidence was strictly limited only to argument and 

proof necessary to establish that motive. Brown, 983 S.W.2d at 516.

However, the trial court admitted evidence of the presence of drugs and 

Elliott’s alleged occupation as a drug dealer over Elliott’s objection at least 

fifteen times over the course of the one-day trial. The prosecutor told the jury 

twice during his opening statement that Elliott had been arrested in the 

presence of alleged drugs. During the presentation of proof the jury then 

watched body cam footage of the search showing the presence of those alleged 

drugs and heard Agent Fox testify at least twice that he located drugs during 

the search. In his closing statement, the prosecutor made at least five 

references to the drugs in the room at the time of Elliott’s arrest and the related 

search video. The prosecutor further stated that an innocent person would not 

have been in the room with the drugs. Twice in closing the prosecutor referred 

to the possession of firearms by drug dealers. During the penalty phase, the 

prosecutor told the jury that Elliott was a “drug dealer in your community.” 

This cumulative evidence far exceeded what was necessary for the 

Commonwealth to show that Elliott’s possession of drugs and occupation as a 

drug dealer established a motive for his unlawful possession of the firearm.

We have previously held that an excessive presentation of otherwise 

relevant evidence of other crimes, wrongs, or acts may result in undue 
14

prejudice to a defendant. Id. at 517 (“While the admission of evidence of 

appellant’s [other crime] did not constitute error, the admission of excessive 

evidence supporting that indictment was ‘unduly prejudicial and trial error.’” 

(quoting Funk v. Commonwealth, 842 S.W.2d 476, 481 (Ky. 1992))); Chumbler 

v. Commonwealth, 905 S.W.2d 488, 493 (Ky. 1995) (finding defendants were 

denied a fair trial where “the Commonwealth presented evidence of [other acts] 

far in excess of what was relevant to . . . establish motive.”). To be clear, a 

limited use of evidence that Elliott possessed drugs and related paraphernalia 

and was a drug dealer would have satisfied the third Bell factor balancing 

probative value against prejudice, provided such use was limited to what was 

necessary to establish motive. But, the Commonwealth’s cumulative 

references to Elliott’s possession of drugs and related paraphernalia and 

alleged occupation as a drug dealer transformed from an appropriately limited 

presentation of evidence of motive to an urging of the jury to draw inferences of 

criminal propensity based upon Elliott’s other crimes, wrongs, or acts. That is 

the very evil KRE 404(b) aims to avoid. Graves, 384 S.W.3d at 150 (“[T]he only 

relevance of the ‘other crimes’ evidence [lacking independent probative value] is 

to suggest that the accused has the propensity to commit the offense under 

review. That of course, is the very thing that KRE 404(b) prohibits.”). As such, 

we conclude the trial court abused its discretion in allowing the presentation of 

other crimes, wrongs, or acts evidence to far exceed what was necessary to 

establish a motive for Elliott’s possession of the firearm, thereby allowing the 
15

tendency of that evidence to lead the jury to improper character inferences to 

substantially outweigh its probative value. 

III. The trial court abused its discretion in admitting evidence of 

other pending charges against Elliott and its admonition did 

not cure the resulting prejudice.

The trial court also abused its discretion in allowing the Commonwealth 

to admit evidence that Elliott faced other pending charges at the time of trial. 

On six separate occasions during trial, the Commonwealth made reference to 

the other pending charges against Elliott. Some of these references related to

an incident following Elliott’s arrest during which Elliott asked Agent Fox to 

read the charges against him and Elliott’s subsequent statement that he was 

keeping the gun for his uncle. While the evident—and proper—purpose of this 

proof was to establish that Elliott knowingly possessed the firearm, the trial 

court abused its discretion in failing to limit the proof to that purpose by 

excluding reference to the other pending charges.

Evidence that Elliott faced other pending charges was not necessary to 

provide context for law enforcement conduct or discovery of the charged 

offense, nor was it so inextricably intertwined with the firearm charge that it 

could not be excluded without serious adverse affect to the Commonwealth. 

Thus, references to the other pending charges were not admissible under KRE 

404(b)(2).

Evidence regarding the other pending charges also did not satisfy any of 

the Bell factors and therefore also was not admissible under KRE 404(b)(1). 

First, that Elliott faced other pending charges was wholly irrelevant to the issue 
16

at trial, namely whether he was a convicted felon who had possessed a firearm. 

Second, the evidence also was not probative of Elliott’s commission of the other 

alleged crimes because the charges were pending rather than actual 

convictions—indeed, Elliott was presumed innocent of those charges at the 

time of trial. Third, Elliott faced undue prejudice as a result of the 

Commonwealth informing the jury he had other pending charges. Thus, while 

the trial court could properly admit Elliott’s statement that he was holding the 

gun for his uncle, the admission of the additional evidence that he requested 

and was read a list of “numerous” other charges was wholly unnecessary and 

resulted in undue prejudice to Elliott. See Graves, 384 S.W.3d at 151 (holding 

that admission of evidence of irrelevant and unproven charge was prejudicial). 

This is particularly so given the reference to this evidence on at least six 

separate occasions during the one-day trial. See id. (“[T]he prejudicial effect of 

that evidence was compounded by the numerous references to it throughout 

the trial . . . .”). As such, the trial court abused its discretion in allowing the 

Commonwealth to present evidence of the irrelevant and unproven charges 

against Elliott.

Finally, that the trial court admonished the jury to consider the other 

charges only as context and background does not alter our conclusion. After 

Agent Fox testified that Elliott faced “numerous” other charges, defense counsel 

moved for a mistrial, which the trial court denied. The defense then requested 

a limiting instruction informing the jury that Elliott was presumed innocent of 

the other pending charges and that the jury should not consider those charges 
17

in determining Elliott’s guilt or innocence on the firearm charge. The trial 

court then provided the jury with the following admonition:

Sometimes evidence is admissible for some purposes and not 

others. Evidence in reference to other charges, other than the 

charge which is being tried here today which is possession of 

firearm by a convicted felon, that evidence has been admitted for 

the limited purpose of showing—if it does, and that’s a matter for 

you to determine—the surrounding circumstances pertaining to 

this case. Any other reference to other charges will be dealt with or 

handled in other proceedings. So that’s the instruction I’m giving.

An admonition is appropriate where “evidence which is admissible . . . for 

one (1) purpose but not admissible . . . for another purpose is admitted.” KRE 

105(a) (emphasis added). Here, the trial court admonished the jury that the 

other pending charges were admissible for the limited purpose of showing the 

surrounding circumstances of the case. As noted above, however, evidence of 

the other pending charges was wholly unnecessary to show why law 

enforcement focused on Elliott, how it discovered the firearm offense, or to 

otherwise provide context or background for the charged offenses. Indeed, the 

pending charges arose only after Elliott’s arrest, and therefore cannot logically 

explain the context of his arrest or the charged offenses. As such, evidence of 

those charges was not admissible under KRE 404(b)(2) for the purpose of 

providing context and the trial court’s admonition to the jury to that effect itself 

was erroneous and did not cure the prejudice resulting from admission of that 

evidence.

IV. The trial court’s errors were not harmless.

Finally, we also conclude that a new trial is required because the trial 

court’s admission of voluminous, repetitive, and cumulative evidence of other 
18

crimes, wrongs, and acts was not harmless. Nonconstitutional evidentiary 

errors “‘may be deemed harmless if the reviewing court can say with fair 

assurance that the judgment was not substantially swayed by the error.’” 

Mason v. Commonwealth, 559 S.W.3d 337, 339-40 (Ky. 2018) (quoting Murray 

v. Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013)). “The key inquiry is 

‘whether the error itself had substantial influence [on the result]. If so, or if 

one is left in grave doubt, the conviction cannot stand.’” Rucker v. 

Commonwealth, 521 S.W.3d 562, 570 (Ky. 2017) (quoting Winstead v. 

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009)).

Here, the jury heard repeated improper and unnecessary references 

throughout the one-day trial to Elliott’s possession of drugs and related 

paraphernalia, to his alleged occupation as a drug dealer, and to other pending 

charges against him. The Commonwealth zealously pursued the admission of 

that evidence, which the trial court erroneously allowed. Notably, such 

evidence of other crimes, wrongs, or acts “is presumptively prejudicial.” 

Graves, 384 S.W.3d at 150. Though proof of Elliott’s guilt for possession of a 

firearm by a convicted felon may have been strongly supported by body cam 

footage showing him in a room with the firearm, it is also noteworthy that the 

jury recommended the maximum sentence of twenty years allowable under the 

law. Under such circumstances, we cannot say with fair assurance that the 

repeated improper references to other crimes, wrongs, and acts did not 

substantially sway the jury’s decision. See Rucker, 521 S.W.3d at 570 (finding 

admission of other crimes, wrongs, or acts evidence not harmless, even though 
19

proof of guilt was strong, given the lack of necessity for the evidence, its 

overwhelming potential for prejudice, the fundamentally flawed proceedings 

resulting from the Commonwealth’s overzealousness and the trial court’s error 

in admitting the evidence, and the jury’s recommendation of the maximum 

possible sentence). We therefore cannot find the error merely harmless and are 

thus constrained to remand for a new trial. 

CONCLUSION

 For the foregoing reasons, we reverse the judgment of the Logan Circuit 

Court and remand for a new trial consistent with this opinion.

All sitting. Bisig, Conley, Keller, Lambert, and Thompson, JJ., concur. 

Vanmeter, C.J.; Nickell, J., concur in result only.
20

COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Kristin Leigh Conder

Assistant Attorney General