RENDERED: DECEMBER 2, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0089-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 19-CR-001640

EDWARD LACKINGTON APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, JONES, AND MAZE, JUDGES.

JONES, JUDGE: In June 2019, the Jefferson County Grand Jury indicted Edward 

Lackington for the murder of his friend and neighbor, Steven Oerther. The 

Commonwealth now appeals from the Jefferson Circuit Court’s order granting 

Lackington’s motion to dismiss the indictment against him pursuant to KRS1

503.085. After a careful review of the record and the law, we affirm.

1 Kentucky Revised Statutes.
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I. BACKGROUND

At the time of the incident of this case, Lackington resided in a small 

apartment building in Jefferson County consisting of four units. Two of these units 

are on the first floor, two are on the second, and both floors of the building are 

connected by an internal stairway with a landing. All of the residents of the 

building were essentially one extended family. Lackington lived in one unit, and 

his sister, Irene, lived in another unit with Oerther, her long-time paramour. 

Irene’s daughter, Misty, resided in a third unit, and the fourth unit was occupied by 

Oerther’s mother and sister. 

Irene and Oerther had been romantically involved for about twenty 

years, but their relationship had suffered over the past year due to Oerther’s 

alcohol and drug abuse. According to Irene, Oerther was belligerent when he 

drank, and he had also started smoking methamphetamine the previous September. 

This resulted in the couple engaging in loud arguments with increasing frequency. 

There is nothing in the record to indicate Oerther ever struck Irene during one of

these arguments, although Misty asserted that Oerther had “put holes in the wall by 

her head when he’s been drinking.” 

Oerther’s relationship with Lackington had also deteriorated. Both 

men were approximately sixty years old and had previously been close friends. 

However, according to Irene, her brother had been afraid of Oerther since an 
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incident in April when Oerther physically attacked him. Apparently, Oerther and 

Irene were having an argument when Lackington showed support for his sister. 

Oerther taunted Lackington, asking him if he was going to go retrieve his handgun. 

Lackington responded by saying that he was already carrying it. Oerther told 

Lackington he was not afraid of the gun, then charged at Lackington and attempted

to punch him. Irene then pulled Oerther away. Irene said her brother carried the 

gun because he was slight in stature and fearful, and the gun was his way of trying 

to protect himself. She also stressed that Lackington never acted in a 

confrontational way because he carried a gun.

On June 4, 2019, Oerther started drinking whiskey around 11:00 a.m.

or noon. He argued with Irene throughout the day as she was placing household 

items in boxes. Irene intended to place these items in a storage unit, but Oerther 

believed she was preparing to move out thereby ending their relationship. The 

argument progressed as Oerther kept drinking. By nightfall, he had consumed 

what Irene described as three half-pints of whiskey, and his agitation had grown to 

the point where he was punching and throwing boxes inside the apartment. 

Oerther escalated the argument by taking Irene’s car keys and her cell phone away 

from her. 

Misty became involved in the altercation while trying to help her 

mother find her car keys outside; Oerther told Irene he had thrown the keys into a 
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ditch. When they came back inside the hallway of the building, Oerther began a 

tirade which included statements such as Irene was “throwing twenty years away” 

and that she did not love him. By this time, Oerther’s anger had significantly 

increased, and he was yelling at Irene while in her face at close range. Misty 

described him as completely enraged, with a very red face, and she believed he 

was going to hit her mother. For her part, Irene was afraid Oerther was going to 

hurt Misty for intervening in the situation. Neither Irene nor Misty had ever seen 

Oerther angered to this degree on any previous occasion. 

Misty placed herself between Oerther and Irene, continuing to argue

with Oerther as Irene went outside. At this point, Oerther grabbed Misty by the 

shoulders and shoved her hard to one side. Misty stated that Oerther did not hit her 

with a fist, but “knocked [her] out of the way.” She said she fell backward and 

sideways but did not fall to the ground. Because of the shove, she was not facing 

in the correct direction to view what happened next, but she believed Oerther was 

“going after” Lackington, who had appeared on the landing at the top of the stairs. 

A single shot rang out, and Oerther fell near the foot of the stairs with a gunshot 

wound in his chest. Despite Misty and Irene’s attempt to stanch the bleeding and 

perform chest compressions, Oerther died at the scene. 

Lackington told police he came to the stairway because he heard the 

altercation and was afraid Oerther was going to hurt his sister or his niece. 
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However, when Oerther began to charge at him with a look of drunken rage, he

feared for his own life. Lackington said Oerther was the sort of person who slaps 

people and pushes them around, referring to the incident in April when Oerther had 

attacked him. Lackington also described the significant size difference between 

the two men. Lackington was about five feet six inches tall and weighed about one 

hundred fifty pounds, while Oerther was about six feet tall, weighed about one 

hundred eighty-five pounds or more, and was very muscular. Lackington was 

emphatic about how he was disabled and that Oerther could have “killed [him] in 

one or two hits.”2 Finally, Lackington told police he did not want to kill Oerther, 

he “just wanted him to stop.”

After conducting interviews with Irene, Misty, and Lackington, police 

investigators arrested Lackington for murder. They told Lackington that there 

were inconsistencies in his account that made them disbelieve his assertions

regarding self-defense or protection of others. First, they pointed out that 

Lackington’s initial statement, in front of the police and Irene, was that he was 

trying to shoot Oerther in the arm, and this differed from his later statement that he 

did not have time to aim before he shot. Lackington explained that he did not want 

2

 The exact nature of Lackington’s disability is not entirely clear. During his police interview, 

Lackington described himself as being in generally poor health, suffering from clogged arteries, 

blood clots, and a bilateral pulmonary embolism. Later, at the August 13, 2020 hearing, 

Lackington’s counsel argued to the court that Lackington suffers from heart problems and 

strokes.
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his sister to think he was trying to kill her boyfriend when he shot him. The 

investigators also pointed out that Lackington said Oerther pushed Misty to the 

ground, but this was contradicted by Misty herself, who said she never actually fell 

to the ground when Oerther shoved her. The investigators also asserted that 

Lackington made inconsistent statements about whether he was afraid for Misty 

and Irene or for himself, as well as whether he shot Oerther when he was one step 

down from the landing or two or three steps down. 

One week after the shooting, the Jefferson County Grand Jury 

indicted Lackington on a single count of murder. Following his arraignment, 

Lackington filed a pretrial motion to dismiss the indictment pursuant to KRS 

503.085, asserting he was immune to prosecution because he was justifiably acting 

in self-defense or in the defense of others when he fired the shot that killed 

Oerther. The Commonwealth responded to the motion, arguing that Lackington 

was not entitled to immunity because there was probable cause to conclude the use 

of force was unlawful in his case. As support, the Commonwealth argued that 

Oerther was unarmed, Lackington’s use of deadly force was excessive, and 

Lackington made inconsistent statements.

The trial court conducted a hearing on the motion on August 13, 2020.

In addition, the evidence included the three eyewitness statements, the autopsy 

report, investigative letters, and police body camera videos. A few months after 
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the hearing, the trial court granted Lackington’s motion to dismiss based on its 

conclusion that “there is not probable cause to conclude that the force used by the 

defendant was unlawful.” (Record (R.) at 75.) This appeal followed.

II. STANDARD OF REVIEW

KRS 503.085 grants civil and criminal immunity to those who 

justifiably use force as permitted in KRS 503.050, 503.055, 503.070, and 503.080, 

which includes self-defense or in defense of another. Rodgers v. Commonwealth, 

285 S.W.3d 740, 752-53 (Ky. 2009). As noted in Rodgers, KRS 503.085 itself 

gives little guidance as to how to apply its version of immunity. 285 S.W.3d at 

753. Ultimately, “[the Kentucky Supreme Court] concluded that, at each step of 

the criminal prosecution – defined as arresting, detaining, charging, or prosecuting

– there must be ‘probable cause to conclude that the force used [by the defendant] 

was not legally justified,’ or the case must be dismissed.” Commonwealth v. 

Lemons, 437 S.W.3d 708, 714 (Ky. 2014) (quoting Rodgers, 285 S.W.3d at 754).

Because the claim of immunity in this case turns upon a probable 

cause determination, we must pay special attention to the role of the trial court in 

determining probable cause as well as the role of a court such as ours, which sits in 

review. “Probable cause has . . . been defined as reasonable grounds for belief, 

supported by less than prima facie proof but more than mere suspicion.” Lemons, 

437 S.W.3d at 715 (internal quotation marks and citations omitted). In its keystone 
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opinion on the subject, the United States Supreme Court ruled that probable cause 

must not be considered in a “hypertechnical” way; instead, a trial court should use 

its common sense to consider the totality of the circumstances. See Illinois v. 

Gates, 462 U.S. 213, 236-38, 103 S. Ct. 2317, 2331-32, 76 L. Ed. 2d 527 (1983). 

“Probable cause is a relatively low standard based on the ‘practical considerations 

of everyday life on which reasonable and prudent men, not legal technicians, act.’” 

Commonwealth v. Bennett, 553 S.W.3d 268, 271 (Ky. App. 2018) (quoting Gates, 

462 U.S. at 241, 103 S. Ct. at 2333).

Our role as an appellate court is relatively constrained because a trial 

court’s “determination of probable cause should be paid great deference by 

reviewing courts.” Gates, 462 U.S. at 236, 103 S. Ct. at 2331. The Kentucky 

Supreme Court has held that “[de novo review] is not appropriate . . . in a 

determination of probable cause in a self-defense/defense of others immunity 

case.” Lemons, 437 S.W.3d at 715. Rather, “[o]n appellate review, this Court 

must establish whether the trial court, after using a totality-of-the-circumstances 

analysis, had a substantial basis for finding probable cause.” Bennett, 553 S.W.3d 

at 270 (citing Lemons, 437 S.W.3d at 715).

III. ANALYSIS

For its sole issue on appeal, the Commonwealth contends the trial 

court in this case erroneously granted immunity and dismissed Lackington’s 
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indictment. The Commonwealth first argues that it “has no way of knowing why 

the decision was made” in this case, because the trial court did not make specific 

findings of fact regarding the discovery presented to it. (Appellant’s Brief at 3.) 

Nevertheless, the Commonwealth argues that it overcame the relatively low 

probable cause standard of showing Lackington’s use of deadly force was unlawful 

“by providing substantial evidence of imperfect self-defense or the existence of 

conflicting evidence in the record to show potential unlawful conduct.” 

(Appellant’s Brief at 4 (quoting Bennett, 533 S.W.3d at 271)). 

The findings of fact are notably scant in this case. The trial court’s 

order lists the evidence it considered, including the witness interviews, police 

investigative letters, and body camera videos. The trial court then considered KRS 

503.085, its associated statutes, and the case law before stating: 

Here, considering all of the circumstances known, 

this Court finds that there is not probable cause to 

conclude that the force used by the defendant was 

unlawful. The evidence and arguments presented to this 

Court portray tragic circumstances. While those 

circumstances resulted in the regrettable death of an 

individual, the defendant’s actions were justifiable under 

the law, as there is not probable cause to conclude that 

the defendant’s belief that the force used was necessary 

to protect a third person (here, possibly more than one 

person) and himself against serious physical injury was 

unreasonable.

(R. at 75.) 
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Because the trial court did not elaborate on its analysis of the facts, the 

Commonwealth requests that we remand the case for additional findings, as one 

alternative form of relief. However, Lackington has correctly pointed out that the 

Commonwealth has waived this argument by its failure to request additional 

findings after the trial court issued its written judgment. “A final judgment shall 

not be reversed or remanded because of the failure of the trial court to make a 

finding of fact on an issue essential to the judgment unless such failure is brought 

to the attention of the trial court by a written request for a finding on that issue or 

by a motion pursuant to Rule 52.02.” CR3 52.04. This civil rule applies in 

criminal cases pursuant to RCr4 13.04; see Helphenstine v. Commonwealth, 423 

S.W.3d 708, 713 (Ky. 2014). Accordingly, it would not be appropriate in this case

to reverse and remand for additional factual findings.

In a review on the merits, a determination of whether the trial court 

correctly dismissed the indictment under these circumstances is deceptively

difficult. A glance at our case law reveals that most motions arguing for immunity 

pursuant to KRS 503.085 do not succeed at the trial court level. This is not 

surprising, given that the Commonwealth must only show “probable cause to 

conclude that the force used . . . was not legally justified,” which is a low threshold 

3

 Kentucky Rules of Civil Procedure.

4

 Kentucky Rules of Criminal Procedure.
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to clear. Lemons, 437 S.W.3d at 714 (quoting Rodgers, 285 S.W.3d at 754). The 

single case which appears to be most on point is Commonwealth v. Bennett, 553 

S.W.3d 268 (Ky. App. 2018), in which the trial court granted immunity. This 

Court reversed and remanded with instructions to reinstate the charges in that case. 

However, Bennett is distinguishable because the trial court granted immunity on 

the basis of “inconsistent and ambiguous” evidence. Id. at 272. 

In Bennett, each party relied on its own interpretation of a video 

which was “of poor quality and lack[ed] audio.” Id. at 269. We noted that the 

video, and the evidence as a whole, was “unclear and conflicting” as to whether 

Bennett “‘provoke[d] the use of physical force’ or ‘was the initial aggressor[,]’” 

which would preclude self-defense immunity. Id. at 272 (quoting KRS 

503.060(2)-(3)). We also noted that our Supreme Court has previously found that 

“‘conflicting evidence as to whether [the] use of deadly force was justified’

supports the preclusion of a pretrial finding of immunity.” Id. (quoting Rodgers, 

285 S.W.3d at 754). The fact that the evidence was conflicting and uncertain 

rendered the trial court’s grant of immunity untenable. Based on these 

considerations, we held the trial court applied the wrong legal standard when it 

determined Bennett was justified in using physical force; instead, the trial court 

should have determined “if probable cause exist[ed] to suggest Bennett’s act of 

shooting was an unlawful use of force.” Id. at 273. 
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Here, unlike in Bennett, the evidence is much more straightforward. It 

is uncontroverted that Oerther was intoxicated, agitated, and belligerent to the 

point of physical violence. Misty and Lackington both assert that Oerther charged 

at Lackington after shoving Misty. There was also the previous incident in April, 

attested to by both Irene and Lackington, in which Oerther physically attacked 

Lackington; this shows that Lackington had a reasonable belief that Oerther would 

attack him again. The Commonwealth attempts to show probable cause of 

unlawful force by stressing particular inconsistencies in Lackington’s accounts of 

what happened. However, we fail to discern anything material about whether 

Misty hit the floor when Oerther shoved her, in Lackington’s account, or if she was 

merely “knocked . . . out of the way,” as she related. Likewise, we fail to see how 

varying accounts of where Lackington was standing when Oerther charged him

should affect the probable cause analysis. Lackington’s initial claim that he was 

attempting to shoot Oerther in the arm gives us pause, but on the balance, we do 

not believe this alleged inconsistency is material. In fact, it could be true that 

Lackington intended to shoot Oerther in the arm but did not have time to aim 

properly. 

The relevant question is whether there is probable cause of an 

unlawful use of force. After considering all of the evidence, the trial court 

determined there was not, and we give “great deference” to a trial court’s probable 
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cause determination. Gates, 462 U.S. at 236, 103 S. Ct. at 2331. Despite the 

Commonwealth’s attempt to point to contradictions in the statements which would 

preclude a pretrial finding of immunity, the asserted inconsistencies are simply not 

germane to the trial court’s probable cause determination. At best, the 

Commonwealth points to inconsistencies which could cause suspicion. As we 

have previously noted, however, probable cause must be “supported by . . . more 

than mere suspicion.” Lemons, 437 S.W.3d at 715 (citations omitted).

Finally, despite the Commonwealth’s arguments, we do not consider 

the fact that Oerther was unarmed requires reversal. “[D]eadly physical force is 

justifiable only when the defendant believes he is in danger of death or serious 

physical injury.” Bennett, 553 S.W.3d at 271 (citing KRS 503.050(2)). “‘Serious 

physical injury’ means physical injury which creates a substantial risk of death, or 

which causes serious and prolonged disfigurement, prolonged impairment of 

health, or prolonged loss or impairment of the function of any bodily organ.” KRS 

500.080(17); see Anderson v. Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011). 

Despite both men being near sixty years of age, the evidence reflects that Oerther 

was significantly larger and more physically fit than the relatively frail Lackington. 

The trial court determined that Lackington’s use of force was necessary to protect 

himself against serious physical injury, and we see no reason to disturb that 

conclusion.
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IV. CONCLUSION

For the foregoing reasons, we affirm the Jefferson Circuit Court’s

order granting Lackington’s motion to dismiss.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Jeanne Anderson

Special Assistant Attorney General

Louisville, Kentucky

BRIEF FOR APPELLEE:

Joshua M. Reho

Louisville, Kentucky