RENDERED: FEBRUARY 9, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1387-MR

TARA K. THOMAS APPELLANT 

v. 

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOE W. HENDRICKS, JR., SPECIAL JUDGE

ACTION NO. 21-CR-01268

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, KAREM, AND TAYLOR, JUDGES.

EASTON, JUDGE: The Appellant, Tara K. Thomas (“Thomas”), seeks reversal of 

the final judgment of the Warren Circuit Court after a jury convicted her of 

Retaliating Against a Participant in the Legal Process. Thomas contends the circuit 

court erred in admitting too much evidence for the Commonwealth, including 

misuse of KRE1 404(b), as contrasted with too little evidence allowed for her, 

1 Kentucky Rules of Evidence. 
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depriving Thomas of the opportunity to present a complete defense. Thomas also 

believes the circuit court erred by amending the Indictment after the close of the 

evidence with a consistent instruction to the jury and failing to give an instruction 

for Harassing Communications as a lesser-included offense. Evaluation of this 

record reveals no error by the circuit court. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Because of events alleged to have occurred on October 7, 2020, 

Thomas was charged with two counts each of Third-Degree Assault (of police 

officers) and Third-Degree Terroristic Threatening, with additional counts of 

Alcohol Intoxication, Resisting Arrest, and Harassment.2 Because of Thomas’ lack 

of any disqualifying criminal record, the Commonwealth offered a felony pretrial 

diversion to Thomas on September 20, 2021. Assistant Commonwealth Attorney, 

Kori Beck Bumgarner (“Bumgarner”), communicated this offer to Thomas’ 

attorney.

2 Warren District Court Case No. 20-F-01090. Because we seek to present a complete picture for 

both sides of this case, we will refer to court records of cases referred to by the parties during the 

case. Judicial notice may not be taken of Kentucky CourtNet records to present as evidence in a 

trial. See Marchese v. Aebersold, 530 S.W.3d 441 (Ky. 2017). But information about the 

existence of charges may be referenced by an appellate court to provide perspective for the trial 

court proceedings. See, e.g., Mulazim v. Commonwealth, 600 S.W.3d 183, 203 n.6 (Ky. 2020).

After the trial in this case, Thomas pled guilty to amended misdemeanor charges in Case No. 20-

F-01090, which had by then resulted in an Indictment filed as Warren Circuit Court Case No. 21-

CR-01096.
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The diversion offer included a requirement to serve some time as an 

alternate sentence. Thomas reacted badly to this offer. On the night of September 

20-21, 2021, Thomas sent a series of messages to Bumgarner, her husband, and her 

stepfather. In summary, these messages included vulgar language and declared

death to Bumgarner and her two small children. Thomas was indicted on 

November 17, 2021.

There were delays in this case because of the identity of the victim. A 

special judge and a special prosecutor from other counties were appointed. 

Thomas’ retained attorney withdrew because of a “breakdown of trust” according 

to Thomas. It then took more time to appoint public defenders from another office. 

This was needed because local public defenders worked frequently with 

Bumgarner.

The delays led to more time in pretrial custody for Thomas. Thomas 

was out on a bond for this case, but this bond was eventually revoked due to a 

confirmed positive drug test (methamphetamine). The special prosecutor also 

reported that he and his wife had received attempts at communication from 

Thomas, although this was not confirmed with evidence in the record. Thomas 

denied this. Even with the delays, the circuit court acceded to Thomas’ demand 

that the case be tried promptly, despite the concerns of her appointed counsel. 
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The circuit court conducted a pretrial conference on July 29, 2022. At 

this pretrial conference, KRE 404(b) issues were addressed. The first day of the 

trial was used to select a jury. The rest of the trial took place on August 3, 2022. 

During the trial, the circuit court allowed Bumgarner’s husband and stepfather to 

testify about the messages they had received, which were reported to Bumgarner. 

Emotional testimony described Bumgarner’s reactions to the threats on the day 

they were received.

Thomas’ defense focused on her intent. She sought to prove that she 

was expressing frustration with the justice system, not actual threats of harm. With 

each witness, her counsel pointed out that the messages contained no actual 

specific threat of how harm would come to Bumgarner. No witness called 911. 

Thomas lived an hour away. Additionally, Thomas wanted to call her mother as a 

witness to present evidence of Thomas’ frustration. After a discussion among 

counsel and the circuit court for over ten minutes, Thomas decided not to call any 

witnesses.

At the conclusion of the evidence, the circuit court instructed the jury 

with respect to threats not just about Bumgarner but also about her children, 

although the Indictment referred only to Bumgarner by name. The jury convicted 

Thomas and fixed her sentence at four years. The circuit court imposed this 
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sentence, denying probation. The circuit court denied a new trial motion. We will 

develop more details of the case as we address the appeal contentions. 

STANDARD OF REVIEW

The circuit court’s evidentiary rulings are reviewed for abuse of 

discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004). “The test 

for abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair or unsupported by sound legal principles.” Id. We review 

legal questions de novo. We must determine whether the circuit court committed 

error in the amendment of the Indictment or in its jury instructions, including 

whether to instruct on a lesser included offense. See Fields v. Commonwealth, 219 

S.W.3d 742 (Ky. 2007) (a case involving both issues).

ANALYSIS

We will review the evidentiary issues first as they will provide context 

for the other decisions made by the circuit court. Thomas argues the presentation 

of messages sent to Bumgarner’s husband and stepfather violated KRE 404. She 

also insists the evidence about Bumgarner’s reaction to the messages was improper 

for the first phase of the trial and should have been limited to the sentencing phase 

as victim impact evidence. We start with the KRE 404 issues.

KRE 404(b) is often imprecisely referred to as a rule governing “prior 

bad acts.” The acts offered as evidence can be contemporaneous or even after the 
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events at issue so long as they are offered and considered only for a proper purpose 

other than the character of the actor. In this case, the evidence about the messages 

served an important purpose other than an attack on Thomas’ character.

Retaliation Against a Participant in the Legal Process occurs when 

someone “threatens to engage in conduct causing or intended to cause bodily 

injury[3]. . . [to] a participant in the legal process.” KRS4 524.055(1). As it 

pertains to this case, other elements are that the threat related to Bumgarner for 

performing her duty as a prosecutor. KRS 524.055(1)(d), (3). These other 

elements were not disputed. The question was whether a threat was intended.

Just as Thomas wanted to focus on the lack of a specific physical 

harm threatened, the lack of any 911 call, and her physical distance from 

Bumgarner, the Commonwealth needed to prove that this was a true threat. If the 

threat was not a true threat, the communication to a government official would be 

protected by the First Amendment right to express opposition or frustration. See 

Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

Under KRE 404(b), evidence of Thomas’ messages to three people 

was relevant to her motive and intent and how real the threat was. KRS 524.055 

3 Of course, death is the ultimate bodily injury regardless of how it may be inflicted. 

4 Kentucky Revised Statutes. 
-7-

does not actually require direct communication5 of the threat to the victim. The 

fact that Thomas sent messages to people close to Bumgarner is relevant evidence 

of her intent to make sure Bumgarner found out about the threat. 

The contemporaneous reactions by Bumgarner and the other 

recipients of the messages were evidence inextricably intertwined with the events 

of that day. The reactions were evidence of whether the threats were real and to 

rebut any claim by Thomas of her mistaken intention to just express frustration. 

When the circuit court considered the probative value of the evidence, it correctly 

concluded that the probative value was not substantially outweighed by the danger 

of unfair prejudice. KRE 403.

On the other side, Thomas wanted to introduce evidence of her level 

of frustration with the justice system and the Warren County Commonwealth 

Attorney. Thomas introduced evidence of comments made around the same time 

expressing her constitutionally protected criticism of the Commonwealth Attorney 

as it related to a case in which Thomas was the victim of a sexual offense. This 

more recent case added to Thomas’ bad court experience when she was the victim 

of sex crimes at the hands of a neighbor when she was 12 years old.

5 Unlike intimidation under KRS 524.040, retaliation under KRS 524.055 does not require any 

direct or indirect communication of a threat to the victim. Kentucky has not had the opportunity 

to address this question, but other states agree with this conclusion. See, e.g., Hammonds v. 

Maryland, 80 A.3d 698 (Md. App. 2013). 
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When Thomas came forward as a child, she faced the unfortunate 

realities of a trial of such charges. Despite DNA evidence, people doubted 

Thomas. She was accused of making prior false allegations. Thomas felt more 

than let down by the process. It should be noted that the neighbor was convicted 

and sentenced to prison.

6

 To this degree, Thomas was vindicated. That no doubt 

did not take away from the negative feelings Thomas had about the process she 

had experienced in the criminal justice system.

Later, as a teenager, Thomas was sexually abused by a high school 

teacher (“Goodpastor”).7 Unlike her prior case, this later case occurred in Warren 

County. This is the connection that would later lead to the threats made in the 

present case. Goodpastor was indicted for Third-Degree Sodomy, a Class “D” 

felony subject to a prison term of one to five years.

There was no trial in Goodpastor’s case. His charge was amended to 

Second-Degree Unlawful Transaction with a Minor, also a Class “D” felony. He 

pled guilty. During the trial in the present case, Thomas’ mother said that all that 

happened to Goodpastor was that he lost his job. That does not appear to be 

6 Commonwealth v. Kenneth Ray Capshaw, Monroe Circuit Court Case No. 05-CR-00063. This 

Court affirmed the conviction. Capshaw v. Commonwealth, 253 S.W.3d 557 (Ky. App. 2007). 

7 Commonwealth v. Douglas James Goodpastor, Warren Circuit Court Case No. 08-CR-00385. 
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accurate. Goodpastor was sentenced to serve two years and was denied shock 

probation.

Thomas offered the criticism she had made about the Goodpastor case 

as a related explanation that she was just expressing her frustration, not really 

threatening to kill anyone. In further support of her intention, Thomas planned to 

call her mother as a witness. During a bench conference, inevitable limitations for 

what this witness could say about what Thomas said were discussed.

Generally, the statements of a defendant are hearsay unless offered 

against them. KRE 801A(b). There are exceptions to the hearsay prohibition. For 

example, statements about a person’s “then existing mental, emotional, or physical 

condition” are permitted. KRE 803(3). But this can only go so far. Thomas’ 

mother may have been able to describe times when Thomas was angry or agitated, 

but this would not allow a wholesale introduction of everything Thomas said to 

explain her feelings.

We offer an example of KRE 803(3) evidence. A witness testifies 

that a party to a case said she planned to get a divorce. This statement would fit 

within KRE 803(3). When asked why she intended to seek a divorce, the party 

gives specifics about various prior events in the marriage. These factual details 

would not necessarily be part of the hearsay exception, which is limited to 

expressions about current intent or state of mind.
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Thomas argues the circuit court prevented her from calling a witness. 

That is inaccurate. The circuit court did not prevent the calling of any witness. 

The circuit court properly expressed concern about anticipated and proper 

objections and the limitations the court would have to impose on the testimony. 

Thomas chose not to call her mother as a witness and further chose, as she had the 

right to do, not to testify herself about her state of mind and intentions.

Thomas made no further record, such as an avowal of specific 

questions and answers. Although there was no error in this regard, any such error 

would have been harmless. RCr8 9.24. Thomas presented her defense about her 

intentions through evidence of her other comments through other witnesses. What 

limited evidence might properly have come from Thomas’ mother under KRE 

803(3) would have been cumulative or would not have resulted in a different 

verdict given all the other evidence in this record. This evidence includes the 

actions by Thomas of deactivating the social media account just after sending the 

messages and then being initially dishonest with the police about the account and 

the messages sent. 

The remaining claims of error ultimately both relate to the jury 

instructions. Throughout discovery and during the trial, there was no question that 

the threats made included Bumgarner’s children. While Thomas sought to limit

8 Kentucky Rules of Criminal Procedure. 
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evidence to the statements about death to Bumgarner herself, the circuit court 

correctly permitted evidence about the threatened death to Bumgarner’s children. 

All the threats were made at the same time and indicated the same criminal motive 

and intent. 

In discussing instructions, Thomas argued the instructions should be 

limited to Bumgarner herself because that was the only name in the Indictment. 

Instead of altering the instructions, it appears the circuit court agreed to the 

Commonwealth’s request to amend the Indictment to include a reference to the 

children. A review of the record does not show that the Indictment was in fact 

amended. The writing on the Indictment itself was not altered, and no written 

order added the language about the children. Yet, the circuit court did orally 

indicate the amendment was proper and ordered it.

KRS 524.055(3) specifically includes the immediate family of the 

participant. This overlaps with KRS 524.010, which provides definitions for the 

same statutory chapter. Bumgarner clearly was a prosecutor as defined in KRS 

524.010(7). A prosecutor is a participant in the legal process as defined by KRS 

524.010(3). Significantly, by definition, every individual participant “includes 

members of the participant’s immediate family.” Id. Thus, with the threats about 

the children known to the defense from the beginning of this case, the reference to 
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Bumgarner alone arguably should have been sufficient notice to include her 

children.

The dissent understandably expresses concern about RCr 6.16, which 

instructs the court as to amendments to an indictment. Perhaps it would have been 

better practice to name the children in the original Indictment. Even with the 

typical use of initials for children, their identity would have been easy for the 

public to determine. This concern may have led to the omission.

Last minute amendments to Indictments may be permitted by our 

rules, but they should be avoided. Our question here was whether the circuit court 

abused its discretion in the particular circumstances of this case. And if so, was 

this error harmful to Thomas?

RCr 6.16 permits amendment of an indictment at any time before a 

verdict is received by the court “if no additional or different offense is charged” 

and there is no prejudice to the substantial rights of the defendant. Thomas faced 

one count of Retaliation Against a Participant in a Legal Proceeding before the 

amendment and after it. The difference was only in identifying the victim or 

victims.

In Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008), the 

Kentucky Supreme Court discussed a change of name in an indictment at trial. 

While addressed in the context of palpable error, the analysis of RCr 6.16 is 
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helpful to our question here. The basic idea is that “a defendant should be aware of 

the crimes charged against him and the evidence forthcoming so that he may 

prepare a defense.” Id. at 679. “[U]nder modern rules the essential question when 

examining variance between the indictment and the proof is whether the defendant 

had fair notice and a fair trial.” Johnson v. Commonwealth, 864 S.W.2d 266, 272 

(Ky. 1993).

From the beginning, Thomas knew of the evidence about the 

simultaneous threats to the children. Given the intertwined nature of the 

communications about Bumgarner and her children, which were evidence of the 

nature of the threat and the intent behind it, Thomas’ counsel could not be 

surprised about the admissibility of this evidence. When the circumstances of this 

case are examined as a whole, there was no prejudice to Thomas by the addition of 

the children’s names. The circuit court did not err in the amendment of the 

Indictment or the consistent jury instructions. Even if there were any error in this 

regard, it was harmless. 

This leaves the question of a lesser included offense. Thomas insists 

that Harassing Communications is a lesser included offense. A lesser included

offense is one that “is established by proof of the same or less than all the facts 

required to establish the commission of the offense charged[.]” KRS 

505.020(2)(a). We have found no prior appellate case in which Harassing 
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Communications was determined to be a lesser included offense of Retaliation 

Against a Participant in a Legal Proceeding. We find good reason for this dearth 

of caselaw. Harassing Communications does not fit as a lesser included offense 

for the retaliation charge.

Harassing Communications requires communication with the victim 

using specified means. As we have previously pointed out, retaliation does not 

actually require communication of the threat. Even if we could see our way clear 

to consider the lesser included offense argument, Thomas would not have been 

entitled to the instruction anyway. The circuit court was not required to give a 

lesser included offense instruction in the circumstances of this case.

“An instruction on a lesser included offense should not be given 

unless the evidence is such that a reasonable juror could doubt that the defendant is 

guilty of the crime charged but conclude that he is guilty of the lesser included 

offense.” Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977). Given the 

admitted messages sent to a prosecutor speaking of her death and the death of her 

children, a rational juror could not have concluded that Thomas was guilty of 

Harassing Communications but not Retaliation Against a Participant in the Legal 

Process. No level of “frustration” may serve as a defense or excuse to threatening 

the death of a prosecutor and her children. 
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CONCLUSION 

The Warren Circuit Court committed no errors in its evidentiary 

rulings or with its instructions to the jury on the charge in this case. The Warren 

Circuit Court is AFFIRMED. 

KAREM, JUDGE, CONCURS.

TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

TAYLOR, JUDGE, DISSENTING: Respectfully, I dissent. The original 

indictment in this case only named the prosecutor, not her children, as the 

purported victim of the charges against appellant arising from threats made in 

violation of KRS 524.055. While the statute clearly provides that threats made 

against the children could be a violation thereof, the children were not named in 

the original indictment as victims. The Fifth Amendment mandates that a 

defendant may only be tried for criminal conduct that is set forth in an indictment 

by a grand jury. Stirone v. United States, 361 U.S. 212, 217-19 (1960).

The Commonwealth’s motion to amend the indictment at the close of 

evidence to add the children as victims, and effectively create new charges against 

the defendant, was clearly prejudicial in total contravention of RCr 6.16. 

Similarly, including threats against the children in the jury instructions was 

reversible error, in my opinion.
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As the majority notes, the Commonwealth moved to amend the 

indictment to include the children as victims at the close of evidence at trial, which 

was granted by the trial court and is reflected in the jury instructions. The 

Commonwealth had over eight months to amend the indictment prior to trial, yet 

failed to do so. While the additional charges naming the children as victims were 

the same type of crimes as committed against the prosecutor, they nonetheless are 

entirely separate criminal acts against other victims. This clearly constituted an 

unfair surprise to the defendant in planning her trial strategy and more importantly, 

was unduly prejudicial for the defendant in the eyes of the jury.

Under these circumstances, I do not believe this was harmless error. I 

would vacate the judgment and remand for a new trial. 

BRIEF FOR APPELLANT:

Kathleen K. Schmidt

Frankfort, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General 

Frankfort, Kentucky