RENDERED: DECEMBER 16, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0139-MR

GREGORY WAHL APPELLANT

ON APPEAL FROM GARRARD CIRCUIT COURT

V. HONORABLE HUNTER DAUGHERTY, JUDGE 

NO. 2018-CR-00089

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING

Gregory Wahl (Wahl) was convicted of one count of first-degree assault 

and one count of being a second-degree persistent felony offender. He was 

thereafter sentenced to forty-five years and now appeals his convictions to this 

Court as a matter of right.1 After review, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are hotly contested. Therefore, we will outline the 

basic undisputed facts, then summarize the relevant testimony from the 

witnesses. 

 

1 Ky. Const. § 110(2)(b). 
2

Without doubt, on May 28, 2018, there was an altercation at the home of 

Wahl and his fiancé, Alisha Sharp (Alisha), that left Alisha’s father, Steven 

Christopher Gifford (Chris), severely injured.2 

Wahl and Alisha lived in a trailer on the property of Chris and his wife, 

Alisha’s mother, Beverly Gifford (Beverly). The trailer was located a short 

distance from Chris and Beverly’s (the Giffords) home and on the same 

property as that home. Alisha was allowed to live in the trailer, but there was 

no formal agreement between the parties regarding tenancy. Wahl and Alisha

lived there with their child in common, who was two years old at the time of the 

incident. Sometime before May 28, 2018, the Giffords had noticed two other 

people they did not know were staying overnight at the trailer. Prior to the 

incident, they developed concern regarding the guests because of the tender 

age of their granddaughter. 

On May 28, 2018, Alisha’s eighteen-year-old son, Ty Sharp (Ty), wanted 

to see his little sister before leaving town and had come to visit his 

grandparents. He and Beverly walked the short distance from the Giffords’ 

residence to Wahl and Alisha’s trailer. Once there, they saw Wahl and a man 

unknown to either of them in the driveway packing the vehicle that the Giffords 

allowed Alisha to drive. They met Alisha at the door, and took the child back to 

 

2 The Commonwealth and the Appellant have alternate spellings of Alisha 

Sharp’s given name. Because her name was spelled this way in the jury instruction, 

we adopt this spelling throughout. Further, because some relevant persons share a 

last name, we will refer to them by their first name. 
3

the Giffords’ residence. The pair saw Chris on the way back, and alerted him 

to the strange man at the trailer. According to Beverly, Chris was frustrated

because both she and he had told Wahl and Alisha several times that there 

were to be no more strangers living with them in the trailer. 

After hearing from Beverly and Ty that a strange man was at the trailer, 

Chris grabbed a garden tool close to him in the barn to stabilize himself, and 

began walking to the trailer.3 Chris was sixty-three years old at the time, 

suffered from vertigo, and used a cane or walking stick to keep his balance. 

According to Chris, he was concerned for his daughter and granddaughter, and 

wanted to inform Alisha and Wahl that he would be beginning eviction 

proceedings to remove them and their unknown overnight guests. He also 

wanted to convey to Alisha that she and Wahl were welcome to come back once 

the strangers were evicted, but that it was his understanding that he had to 

evict them all to remove the strangers first. According to Alisha and Wahl, 

Chris was angry with them for having unknown persons at the trailer and had 

merely come to confront them about it. Either way, Chris made his way to the 

trailer with the mutt in hand, which he and Beverly testified that he had used 

as a walking stick numerous times. 

Several diverging accounts exist regarding what happened once Chris 

reached the trailer. 

 

3 Though called various names throughout the trial, the record reflects that this 

was a long wooden tool with a rectangular metal plate secured to the end that is used 

as a scraper and chopper, and commonly referred to as a mutt. Therefore, we refer to 

the tool as a mutt for clarity. 
4

According to Wahl, he and Alisha saw Chris coming with the mutt in 

hand at what Wahl described as a “pretty good clip.” Chris appeared angry as 

he approached and yelled, “I’m going to kill you, motherfucker,” and then 

swung the mutt at Wahl. Chris did not make physical contact with Wahl. 

Wahl then grabbed a stick that was resting near a trashcan by the trailer to 

defend himself, but did not swing it at Chris. In the interim, he heard Alisha

exclaim “dad, what are you going to do, try and kill me, too?” Chris then turned 

his fury toward Alisha, who was seated in a car parked outside the trailer, and 

swung the mutt at her. It bounced off the door, and struck and penetrated the 

windshield. It was at this time that Wahl struck Chris for the first time in the 

head. Chris fell, tried to get up, and Wahl struck him at least three more 

times. 

Alisha testified that Chris looked angry when he approached the trailer. 

He was using the mutt as a walking stick and walking at a normal pace. There 

was a conversation about evicting her and Wahl from the trailer. For some 

reason unknown to her, Chris screamed, “You sorry motherfucker!” at Wahl 

and the two exchanged insults. Not used to hearing her dad cuss, Alisha

thought to herself, “He’s pissed off big time.” Chris swung the mutt at Wahl at 

least three times, during which time Wahl grabbed the stick on the trashcan. 

Alisha decided at this point that the best way to end the altercation was to 

leave, so she walked to the car and opened the door. She told Wahl they 

should leave, at which point Chris noticed her, turned and walked toward her.

Chris then raised and swung the mutt at her, and struck the windshield of the 
5

vehicle. She said, “dad, what are you going to do, try and kill me, too?” The 

mutt came close to her head, and she was fearful for her life. Wahl then struck 

Chris in the head with the stick. Chris tried to get up or grab the tool, and 

Wahl struck him in the head with each attempt to move. Once Chris stopped 

moving and Wahl stopped striking him, Alisha called 911 and went to the 

Giffords’ house to find her children.

According to Chris, when he approached the trailer Wahl was holding 

two sticks in his hand. He asked Wahl what the strange man was doing at the 

trailer. Chris then told Wahl and Alisha that he would be evicting them and 

wanted to let them know before they got the paperwork. Wahl then started 

cursing at Chris, and Alisha opened the car door and told him that she did not 

have to listen to him. She did not get inside the car and was standing adjacent

to the open car door. In an attempt to get Alisha to stay to discuss the 

situation, he slammed the mutt onto the vehicle in frustration. He wanted her 

to know he was serious. Chris then felt something strike him in the back of 

the head, intense pain followed. He then fell to the ground. He was not sure 

what had struck him. In an attempt to protect himself from further harm, he 

tried to roll under the vehicle, but Wahl hit him several more times in the head 

and face while yelling, “how do you like that, motherfucker!” His eyes were 

swelling, so he could not see what he was being struck with, but he no longer 

had the mutt in his hand.

According to Beverly, once she and Ty arrived back at the Giffords’ home, 

she could see Chris walking toward the trailer through the tall grass. He was 
6

using the mutt to help him walk. Chris did not seem angry. She thought that 

Chris was going to talk to Wahl and Alisha about evicting them from the trailer. 

It was uncommon, in her experience, for Chris to go down to the trailer. Once 

she realized he would likely be discussing eviction, she, Ty, and the child went 

back outside the house and watched. She could hear Wahl yelling, but could 

not hear Chris. The two were standing about five to six feet apart. Wahl was 

holding two sticks from the trashcan, and Chris was still holding the mutt he 

had used to help him walk to the trailer. She heard Alisha tell Chris she was 

leaving and open the car door, but Alisha was standing next to the open door 

and not in the car. From her point of view, it did not appear that Chris had 

swung the mutt toward Alisha, but she did see him slam the mutt onto the car, 

breaking the windshield. She then saw Wahl strike Chris in the back of the 

head, and then saw Chris’s body dip below the tall grass and out of her sight. 

She saw Wahl strike toward the ground several more times. She instructed Ty 

to take the child into the house, and she drove down to the trailer. Once there, 

she hurried to Chris. He had deep gashes above his right eye and on his nose, 

was bleeding profusely, his eyes were swollen shut, and he was writhing in 

pain. Beverly also saw Alisha walk toward the Giffords’ house, and Wahl walk 

toward the barn. She collected a bed sheet from the car, and wrapped it 

around Chris’s head in an effort to stop the bleeding.

From the Giffords’ home, Ty saw Chris talking to Wahl and Alisha at the 

trailer. He could tell that Wahl was saying something loud and aggressive, but 

could not make out the exact words other than cuss words. He knew that 
7

Chris walked with the assistance of a cane or walking stick, and saw the mutt 

in his hand. He then saw Chris slam the mutt onto the car, breaking the 

windshield. He saw Wahl strike Chris, and then strike toward the ground once 

Chris fell, but could not see whether Wahl was striking Chris due to the tall 

grass. 

After the incident, Alisha and Wahl separately called 911. Alisha, Ty, 

and the child stayed at the Giffords’ home while Beverly tended to Chris, who 

was laying next to the vehicle with his eyes swollen and head bleeding. 

Meanwhile, Wahl walked toward the barn and laid in the grassy field until 

police arrived. 

It took approximately fifteen minutes for Emergency Medical Services 

(EMS) workers to arrive at the Giffords’ residence. Kay Roberts (Roberts) was 

the supervising paramedic who was dispatched to the residence. For 

approximately forty-five minutes she waited there with Alisha, Ty, and the child 

until police could arrive and ensure the EMS workers’ safe entry to the trailer. 

While waiting, she got information from Alisha regarding what happened. 

Roberts testified she did so in order to be able to better treat Chris once her 

team could safely get to him. During that time, Alisha told Roberts that Wahl 

had struck Chris with the mutt. Roberts testified that she included that 

information in her report so that subsequent treating physicians could know 

what kind of object had caused the trauma to Chris’s head and face. 

Kentucky State Trooper Jacob Shepherd (Trooper Shepherd) arrived at 

the scene nearly an hour after the incident was over. He found Wahl speaking 
8

to local police, approached Wahl and spoke with him, and then took his 

statement regarding the altercation. He noted that Wahl had sustained no 

injuries. Trooper Shepherd took several photographs at the scene, including of 

Chris, of the mutt, of the stick or sticks Wahl had picked up from the trashcan,

of the vehicle, of the residences, and of the barn. However, Trooper Shepherd 

did not take the sticks or the mutt into evidence. Trooper Shepherd did take 

several other recorded statements. Wahl’s recorded statement was played at 

trial, and so was Beverly’s. 

Wahl was indicted for first-degree assault and being a first-degree 

persistent felony offender on October 5, 2018 by way of the Garrard County 

Grand Jury. On December 20, 2019, Wahl filed a motion to dismiss the 

indictment, claiming immunity from prosecution pursuant to Kentucky Revised 

Statute (KRS) 503.085. KRS 503.085(1) provides in pertinent part that:

[a] person who uses force as permitted in KRS 

503.050, 503.055, 503.070, and 503.080 is justified in 

using such force and is immune from criminal 

prosecution and civil action for the use of such force

[...]. As used in this subsection, the term “criminal 

prosecution” includes arresting, detaining in custody, 

and charging or prosecuting the defendant.

The relevant portions of KRS 503.050 provide that:

(1) The use of physical force by a defendant upon 

another person is justifiable when the defendant 

believes that such force is necessary to protect himself 

against the use or imminent use of unlawful physical 

force by the other person.

(2) The use of deadly physical force by a defendant 

upon another person is justifiable under subsection (1) 

only when the defendant believes that such force is 

necessary to protect himself against death, serious 
9

physical injury, kidnapping, sexual intercourse 

compelled by force or threat, felony involving the use of 

force, or under those circumstances permitted 

pursuant to KRS 503.055.

[. . .]

(4) A person does not have a duty to retreat prior to 

the use of deadly physical force.

The relevant portion of KRS 503.055(3) states that:

[a] person who is not engaged in an unlawful activity 

and who is attacked in any other place where he or 

she has a right to be has no duty to retreat and has 

the right to stand his or her ground and meet force 

with force, including deadly force, if he or she 

reasonably believes it is necessary to do so to prevent 

death or great bodily harm to himself or herself or 

another or to prevent the commission of a felony 

involving the use of force.

The trial court reviewed the entirety of the evidence in the record at the 

time of the motion and considered the foregoing statutes. The trial court then

denied the motion to dismiss after reviewing the record in accordance with

Commonwealth v. Eckerle,

4 and the case proceeded to trial. 

Dr. Sri Rapuri was Chris’s family physician. He reviewed the medical 

records that were created at the University of Kentucky Hospital (U.K. Hospital) 

where Chris was initially treated. Dr. Rapuri treated Chris after his release 

from U.K. Hospital, and testified about his extensive injuries at trial as an 

expert witness. Dr. Rapuri stated that Chris eventually had to have his right 

eye removed, has advanced scarring on his face and head from the altercation, 

suffered numerous skull fractures, and suffered a subdural hematoma in 

 

4 470 S.W.3d 712 (Ky. 2015).
10

addition to the superficial injuries to the skin on his head and face. Based 

upon Dr. Rapuri’s training and experience, he stated it would take a great 

amount of physical force to break the skull on the forehead. Dr. Rapuri stated 

that he also treated Chris for severe anxiety, panic attacks, post-traumatic 

stress, and nightmares related to the altercation. Following Dr. Rapuri’s 

testimony, the Commonwealth moved to enter a limited number of certified 

medical records into evidence, including records from U.K. Hospital and 

records from Dr. Rapuri’s office. 

Alisha, Ty, Beverly, Chris, Roberts, and Trooper Shepherd testified at 

trial. Wahl also testified on his own behalf. Each recounted the occurrences of 

that day from their own perspective. Chris and Beverly were emphatic that 

Chris would never hurt Alisha, stating that their only other child died by

suicide several years prior, and it had compelled them to nurture their 

relationship with Alisha and her children. 

On direct examination, Alisha initially stated that she never saw Wahl 

with the mutt. Confronted with the paramedic’s report during cross 

examination, Alisha stated that she did not remember telling Roberts that Wahl 

had the mutt and does not know why she would have said it, but conceded 

that Roberts would not have included it in her notes if she had not said it. 

On direct examination, Alisha asserted that she had a loving relationship 

with Wahl. In an effort to impeach her, the prosecutor engaged in the following 

line of questioning: 

Q: You testified that you love Greg [Wahl], but aren’t 

you scared of [him]?
11

A: Like, I don’t...

Q: Fearful of him. 

A: In what situation?

Q: Violence. That he may be violent with you.

A: I guess there have been times when we have had 

disagreements.

Q: Okay, so in the timeframe leading up to 2018, were 

you fearful of...

A: At that particular time, I was not fearful.

Defense counsel objected on the ground that notice was required to 

question Alisha for the purpose of impeachment on Wahl’s prior bad act (i.e. 

charges of assault that Alisha had filed against Wahl) and moved for a mistrial. 

Defense counsel stated that the charges were for assault, and that the 

Commonwealth hinted to the jury that Wahl had assaulted the witness. The 

Commonwealth argued that he was not using the prior bad act in his case in 

chief, and therefore notice was not required under the rule. The trial court 

sustained the objection, but stated that mistrial was improper because Alisha 

had not discussed anything that he had done, and that an admonition would 

be sufficiently curative. Further, the trial court stated that, because Alisha’s 

credibility was at issue and because her being fearful of Wahl would reflect her 

motivation for testifying, evidence of the pair’s alleged domestic violence would

have been admissible if the prosecutor had given proper notice. Defense 

counsel asked that the court not admonish the jury, fearing an admonition 

would leave more questions than provide answers.

After the close of the evidence, the jury was instructed on the charge of 

first-degree assault and the lesser-included offenses of second-degree and 
12

fourth-degree assault. The jury also was instructed on the defenses of selfprotection and protection of another. The jury found Wahl guilty of first-degree 

assault, and sentenced Wahl to twenty years during the guilt phase. 

During the penalty phase, the Commonwealth read pertinent information 

from each of Wahl’s previous convictions and entered certified copies of each as 

exhibits rather than introducing the convictions through live testimony. The 

exhibits reflect the following information about Wahl’s prior convictions: 

(1) one count of fourth-degree assault in Casey 

County, Kentucky in 2004 (including the name of the 

assault victim); 

(2) one count of theft by unlawful taking in Boyle 

County, Kentucky in 2009 (including the name of a 

Wal-Mart manager as complaining witness and 

address of the Wal-Mart);

(3) six counts of theft by deception in Casey County, 

Kentucky in 2010 (including the names of store 

managers as complaining witnesses and addresses of 

stores); 

(4) separate counts of driving under the influence,

improper passing of a loading/unloading school bus, 

expired license plates, and eighteen counts of firstdegree wanton endangerment (one count for each 

person on the bus, naming each person in the 

indictment) in Casey County, Kentucky in 2010; 

(5) two counts of second-degree trafficking in a 

controlled substance in Casey County, Kentucky in 

2011 (containing the name of a Kentucky State Police 

officer as complaining witness).

The trial court allowed the exhibits (Commonwealth Exhibit Nos. 2, 3, 4, 5, and 

6, respectively) to go with the jury into the deliberation room with no objection 

from defense counsel. 
13

The jury found Wahl guilty of being a second-degree persistent felony 

offender during the penalty phase, which enhanced the sentence to forty-five 

years by the finding of persistent felony offender status. The trial court 

imposed the sentence as recommended by the jury. This appeal followed.

We discuss additional facts as necessary below.

II. ANALYSIS

Wahl asserts a number of errors on appeal to this Court. First, Wahl 

contends that the trial court erred by denying his motion to dismiss the 

indictment on the basis of immunity. Second, Wahl argues that the trial court 

erred by allowing the Commonwealth to introduce the hearsay statement of 

Alisha that Wahl struck Chris with the mutt through the testimony and written 

report of EMS worker Roberts.5 Third, Wahl argues that the trial court erred 

by not granting his motion for a mistrial after the Commonwealth questioned 

Alisha about whether Wahl had been violent toward her during cross 

examination. Fourth, and finally, Wahl contends that the trial court exceeded 

 

5 Wahl tangentially argues that paramedic Roberts made statements that were 

beyond lay testimony, and that she was not qualified as an expert to offer such an 

opinion. Namely, that she testified that it would take a great amount of force to break 

the frontal bone and that the deep lacerations on Chris’s face looked like they had 

been made with a slim, heavy object. The trial court ruled that she could not state 

specifically which instrument was used but could detail what type of object would be 

consistent with the injuries she observed. Defense did not object to this testimony, 

therefore this alleged error was unpreserved. Kentucky Rule of Criminal Procedure 

(RCr) 9.22. Wahl did not request review for palpable error. “Ordinarily, when an issue 

is unpreserved at the trial court, this Court will not review it unless a request for 

palpable error review under RCr 10.26 is made and briefed by the appellant.” Webster 

v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd v. Commonwealth, 

251 S.W.3d 309, 316 (Ky. 2008)). Accordingly, palpable error review is denied. 

Further, we note that Dr. Rapuri made substantially the same statements during the 

trial, thus rendering any such comment by Roberts as merely cumulative. 
14

the scope of KRS 532.055 when copies of documents related to his prior 

convictions were introduced and sent into deliberations with the jury. We take 

each argument in turn.

A. The trial court did not err by denying Wahl’s motion to dismiss the 

indictment under KRS 503.085.

Wahl contends that error occurred when the trial court denied his 

motion to dismiss the indictment on the basis of immunity.

6 He argues that 

the Commonwealth failed to point to sufficient evidence in the record at the 

time of the motion to support the trial court’s probable cause finding under

KRS 503.085. Further, he states that the trial court incorrectly determined 

that he was not immune from prosecution because at least some of the force 

may have been justified. 

We ordinarily do not revisit a trial court’s probable cause finding in cases 

in which “a jury has already convicted the defendant—and, thus, found [his 

actions were] unlawful beyond a reasonable doubt” unless there are flaws in 

the conviction.7 Considering the seriousness and fact-intensive nature of the 

errors alleged by Wahl, however, we will review the trial court's denial of his 

immunity motion.

“The standard of review of a denial of a defendant's motion to dismiss for 

immunity from prosecution under KRS 503.085 is whether the trial court had 

a ‘substantial basis’ for finding probable cause to conclude that the defendant's 

 

6 This issue was preserved for appellate review upon Wahl’s motion to dismiss 

pursuant to KRS 503.085. RCr 9.22.

7 Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015).
15

use of force was unlawful.”

8 This Court elucidated this rule further in Ragland 

v. Commonwealth, stating as follows: 

[t]he standard of probable cause is “a fluid concept—

turning on the assessment of probabilities in 

particular factual contexts—not readily, or even 

usefully, reduced to a neat set of legal rules.”

9

It has been defined as “reasonable grounds for belief, 

supported by less than prima facie proof but more 

than mere suspicion.”10

And judges must consider the totality of the 

circumstances then known to determine whether 

probable cause exists to conclude that a defendant's 

use of force was unlawful.11

As this Court has previously stated, “in order for the prosecutor to bring 

charges or seek an indictment, there must be probable cause to conclude that 

the force used by the defendant was not fully justified under the controlling 

provision or provisions of KRS Chapter 503.”

12 A defendant is justified in using 

deadly physical force “only when the defendant believes that such force is 

necessary to protect himself against death . . . [or] serious physical injury . .

.”13 Under KRS 503.070(2), deadly physical force to protect another person is 

justified if “[t]he defendant believes that such force is necessary to protect a 

third person against imminent death . . . [or] serious physical injury” and 

 

8 Id. at 246 (citing Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014)).

9 Id. at 246 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).

10 Id. at 246 (quoting Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 2006)).

11 Id. at 246-47 (citing Rodgers v. Commonwealth, 285 S.W.3d 740, 754-55 (Ky.

2009)).

12 Rodgers, 285 S.W.3d at 754.

13 KRS 503.050(2).
16

“[u]nder the circumstances as they actually exist, the person whom he seeks to 

protect would himself have been justified . . . in using such protection.”

The trial court ruled that the force Wahl used was not fully justified after 

considering the following evidence: audio recordings of interviews with Beverly, 

Chris, Wahl, and Alisha, police reports, and photographs of the scene, 

including those of Chris’s injuries, the walking sticks and mutt, and the 

vehicle. Inconsistent evidence and testimony alone provide the substantial 

basis upon which the trial court formed its probable cause finding that the 

force Wahl used was unlawful. The four interviews offered varying accounts of 

what happened and are critical to whether Wahl was entitled to self-defense or 

defense of another. 

Beverly told Trooper Shepherd that Chris smashed the window with the 

mutt he was using as a walking stick, but he did not swing it at Alisha and had 

not swung it at Wahl at all. She then saw Wahl strike Chris in the back of the 

head, Chris fall, and Wahl strike Chris several more times. 

According to Chris, Wahl was holding two sticks in his hand when Chris 

approached. Alisha came out of the house and asked him what he was doing 

down there. Chris explained he was going to evict them. He never attempted 

to strike either one of them. Wahl raised his stick at Chris, started screaming 

and cussing at him, then Alisha said she was leaving, and Chris slammed the 

mutt onto the car to stop her from leaving. Immediately, he was struck in the 

back of the head by Wahl, who had been standing behind him. Alisha said, 

“Dad, why did you try to kill me?” He did not lose consciousness. Wahl struck 
17

him at least six more times while he was on the ground. He never tried to get 

up, and instead tried to roll under the vehicle to get away from Wahl. 

Alisha told Trooper Shepherd that she saw her dad coming to the trailer 

with the mutt in hand. She said to him, “dad, I don’t know what you’re trying 

to do, but just leave.” She then heard Chris tell Wahl that he would kill him, 

and saw him swing the mutt toward Wahl, but not strike him. Wahl then 

picked up a walking stick, and the two hit each other’s sticks. Alisha tried to 

leave, and Chris tried to strike her with the mutt, but instead hit the 

windshield as she was trying to get in the car. Chris again swung the mutt at 

Wahl, and Wahl struck Chris in the head. Chris fell, and tried to get up, and 

Wahl struck him several more times until Chris quit trying to get up. 

Wahl told Trooper Shepherd that he and Alisha were getting ready to 

leave when Beverly and Ty came to get the child. Ten minutes later, he saw 

Chris coming toward the trailer carrying the mutt. Chris told Wahl that he had 

come to kill him, and swung the mutt at him. Then Chris turned toward Alisha 

and swung at her while she was in the car, and struck the windshield. Chris 

then turned and swung at Wahl, and Wahl struck Chris in the head with a 

walking stick. Chris then fell to the ground. Wahl did not know how many 

times he struck Chris, but he kept striking him until he quit trying to get up. 

These varying accounts alone provide the substantial basis upon which 

the trial court formed its reasonable grounds for belief that the force Wahl used 

was not justified. Wahl contends that Chris approached quickly with the 

intent to kill him and while possessing a deadly weapon. Chris and Beverly 
18

contend that Chris approached without anger and with only a tool he carried to 

stabilize his unsteady and slow gate. Wahl contends that Alisha was in 

imminent danger. Chris contends that he would never harm his only surviving 

child and never swung the mutt at either her or Wahl. While Wahl contends 

that he only struck Chris while he was on the ground because he was trying to 

get up, Chris contends that Wahl continued to beat him when he tried to shield 

himself by seeking safety under the vehicle. These facts, which Wahl portrays 

as undisputed, are clearly at odds. These critical variances in the testimony 

have great effect on whether Wahl acted justifiably, and certainly on whether 

each blow dealt was justifiable. We conclude from the evidence that the trial 

court had a substantial basis to find that Wahl’s use of force was unlawful. 

Therefore, the trial court did not err in denying Wahl’s motion to dismiss the 

indictment based on his claim of self-defense or defense of others.

B. Roberts’ report and her testimony concerning it were admissible.

Roberts’ report and her testimony reflected that Alisha told her that Wahl 

had struck Chris with the mutt. Wahl contends that this is inadmissible 

hearsay evidence under KRE14 802.

15 We review a trial court’s determination

 

14 Kentucky Rule of Evidence.

15 This issue was preserved for appellate review by defense counsel’s 

contemporaneous objection and subsequent motion for a mistrial. RCr 9.22. In 

addition to alleging that the portion of the report that contains Alisha’s statement is 

inadmissible hearsay, Wahl further alleges error in admission of the report as a whole 

on appeal, and posits that it was not admissible as a business record. Wahl did not 

raise this issue before the trial court. Wahl did not request palpable error review by 

this Court or brief how admission of the whole record would constitute palpable error 

reviewable by this Court under RCr 10.26. Therefore, we decline to address it. Thus, 

the sole question properly before us is whether the hearsay statement made by Alisha, 
19

regarding the admissibility of evidence under the abuse of discretion 

standard.16

“Hearsay is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted.”

17 Subject to a full panoply of well-established exceptions, 

hearsay is inadmissible.18 

The Commonwealth chiefly relied on KRE 803(4) in arguing that the 

hearsay statement contained in the report and testimony concerning that 

hearsay statement were admissible.19 KRE 803(4) states in relevant part: 

[t]he following are not excluded by the hearsay rules, 

even though the declarant is available as a witness:

Statements made for purposes of medical treatment or 

diagnosis and describing medical history, or past or 

present symptoms, pain, or sensations, or the 

inception or general character of the cause or external 

source thereof insofar as reasonably pertinent to 

treatment or diagnosis.

It is evident that Roberts’ testimony and report regarding the out of court 

statement of Alisha was used to prove the truth that Wahl struck Chris with 

the mutt. However, for the reasons discussed below, we hold that this 

 

who did not have a business duty to make the statement, is admissible under some 

other hearsay exception. 

16 Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).

17 KRE 801(c).

18 Moore v. Commonwealth, 462 S.W.3d 378, 381 (Ky. 2015) (quoting Wells v. 

Commonwealth, 892 S.W.2d 299, 301 (Ky. 1995); then citing KRE 802).

19 The Commonwealth argues in the alternative that the statement was 

admissible under KRE 801A(a)(1). Because we hold the report was admissible under 

KRE 803(4), we need not and do not address that argument. 
20

statement was properly admissible under KRE 803(4)’s exception to the general 

bar on hearsay.

The admission of the report presents a rather unique question: do EMS 

pre-hospital care reports containing hearsay fall within the definition of 

medical records excepted from the bar on hearsay under KRE 803(4)? Having 

extensively reviewed the precedent of this Court, we are not satisfied that we 

have directly addressed this question. 

Professor Robert Lawson has accurately pointed to the basics of the rule: 

[m]ost of the hearsay admitted under the exception will 

consist of statements made to treating physicians, but 

the defining language of KRE 803(4) does not limit the 

exception to such statements for good reason (as 

drafters explained in their commentary on the 

exception):

The language of subsection (4) does not limit the 

coverage of the exception to statements made to 

physicians. It is commonplace for physicians to use 

nurses, technicians, and other highly trained 

individuals, in the course of providing treatment to 

patients. The drafters of the Federal Rule made the 

following statement about this issue: Under the 

exception the statement need not have been made to a 

physician. Statements to hospital attendants, 

ambulance drivers, or even members of the family 

might be included . . . Extending coverage to 

statements made to family members may be somewhat 

extravagant. But it is proper to apply the exception to 

statements made to medical personnel.

Most of the hearsay admitted under the exception will 

consist of statements made by patients, but once again 

the language of the defining provision extends beyond 

the normal situation to cover statements made by 

third persons on behalf of patients (such as

statements made by parents to physicians in obtaining 

treatment of their children) so long as they are made 

for purposes of diagnosis or treatment. In addition to 
21

having been made for this purpose, qualifying 

statements must fall into one of these three categories: 

(1) medical history, (2) symptoms, pain, or sensations, 

or (3) the inception or general character of the cause or 

external source thereof.20

We agree with Professor Lawson. To the extent that EMS care reports 

contain statements made to paramedics for the purpose of medical treatment 

or diagnosis and describing medical history, or past or present symptoms, 

pain, or sensations, or the inception or general character of the cause or 

external source thereof insofar as the statements are reasonably pertinent to 

treatment or diagnosis, these records may be generally admissible under KRE 

803(4). A statement made to paramedics for the purpose of diagnosis or 

treatment, “like any other relevant evidence, is subject to exclusion if its 

probative value is substantially outweighed by the danger of undue prejudice 

[...], confusion of the issues, or misleading the jury, or by considerations of 

undue delay, or needless presentation of cumulative evidence.”21 “The 

balancing of the probative value of such evidence against the danger of undue 

prejudice is a task properly reserved for the sound discretion of the trial 

judge.”

22

 

20 Robert Lawson, The Kentucky Evidence Law Handbook, § 8.55[1][a] at 746 

(LexisNexis Matthew Bender 2019) (quoting Evidence Rules Study Committee, 

Kentucky Rules of Evidence—Final Draft, p. 85 (Nov. 1989)).

21 Garrett v. Commonwealth, 48 S.W.3d 6, 14 (Ky. 2001) (citing KRE 403).

22 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
22

However, we caution that “[t]his exception to the hearsay exclusionary 

rule does not open the door to testimony by”

23 paramedics to all conversations 

with witnesses or the patient. 24 As this Court has detailed, whether

statements are excepted from the general bar against hearsay under the 

medical diagnosis and treatment exception is “governed by a two-prong test: (1) 

the declarant's motive in making the statement must be consistent with the 

purpose of promoting treatment; and, (2) the content of the statement must be 

such as is reasonably relied on by a physician in treatment or diagnosis.”25

Under the first prong of the test, the declarant’s motive must be carefully 

scrutinized. “This exception to the hearsay rule is premised on the notion that 

a declarant seeking treatment has a selfish motive to be truthful because the 

effectiveness of medical treatment depends upon the accuracy of the

 

23 Tackett v. Commonwealth, 445 S.W.3d 20, 27 (Ky. 2014).

24 We further caution that a paramedic’s care report will not always admissible, 

and certainly not always admissible in full. In Gillam v. Commonwealth, an 

unpublished opinion, this Court determined that a victim’s statements made to an 

Emergency Medical Technician (EMT) regarding the identity of her attacker were 

testimonial, and therefore implicated the confrontation clause, and were also not 

relevant to her treatment or diagnosis. No. 2007-SC-000180-TG, 2008 WL 4291544, 

at *5 (Ky. Sept. 18, 2008). We analogized statements made by the victim to an EMT 

regarding the identity of her attacker to those the victim made to police officers. This 

logic was sound and appropriate under the facts of that case. Then as now, 

“statements of identity are seldom if ever pertinent to diagnosis or treatment” when 

they are later sought to be admitted to prove that the defendant committed the 

charged criminal offense in that case. Garrett, 48 S.W.3d at 12. Importantly, identity 

of the attacker is not at issue here, and Wahl had the ability to confront Roberts with 

the statement, and offered Alisha as his own witness.

25 Id. (Ky. 2010) (internal citations and quotation marks omitted).
23

information provided.”

26 When a patient is unable to speak on their own behalf 

due to disability or infancy, this Court has held that the declarant’s motive may 

be ascertained by their relationship with the patient.27 Statements made by 

close family members in such circumstances are inherently more reliable than 

statements made by non-family declarants due to the uniquely close nature of 

those relationships. An adult child, who by all accounts had a close and loving 

relationship with her father, especially after the untimely death of her only 

sibling, would necessarily have a motive to be truthful to paramedics waiting in 

the wings to render aid to her gravely injured father during an ongoing 

emergency.

Under the second prong of the test, the plain language of KRE 803(4)—

i.e., whether the statements were “reasonably pertinent to treatment or 

diagnosis”—demands an objective test.28 An adult child’s statement as to the 

“general character of the cause or external source” of her father’s injury would 

logically be necessary for medical personnel to render effective aid.29 A trial 

court should consider all objective facts in the record to make its determination 

of whether the statement made would be pertinent to treatment or diagnosis. 

 

26 Id.

27 See Miller v. Watts, 436 S.W.2d 515 (Ky. 1969), wherein this Court reaffirmed 

Commonwealth, Div. of Forestry, Dep’t of Conservation v. Farler, 391 S.W.2d 371 (Ky.

1965), recognizing “that a patient's history related to a treating doctor by a member of 

the patient's family was admissible.”

28 (Emphasis added).

29 KRE 803(4).
24

This case clearly demonstrates the circumstances under which hearsay 

statements contained in a paramedic’s care report can be a medical record 

exempt from the hearsay bar under KRE 803(4). 

Under the first prong of the test, the facts in the record indicate that 

Alisha had a strong motivation for truthfulness. Alisha called 911, and was the 

one who relayed the information that Wahl had struck Chris with the mutt to 

the paramedic. She testified that she made the call with the purpose of seeking 

medical treatment for her father and understood that he was gravely injured. 

Though she was not the patient herself, she did have a special relationship 

with the person for whom she was seeking medical treatment: that of a child 

concerned for her parent after he had been beaten. The emergent situation for 

which she was seeking medical assistance from the paramedic was still 

ongoing at the time she made the statement: the paramedics had yet to reach 

Chris due to their concern for their own safety, and he still laid where he had 

fallen with no aid other than a bedsheet to stop his bleeding. These facts 

underscore her motivation for truthfulness. Therefore, for the same reasons 

the trial court found, the first prong of the test is satisfied. 

Under the second prong, the facts in the record strongly indicate that a 

statement identifying the weapon would, objectively, be relied on by a physician 

in treatment or diagnosis. Whether the trauma was blunt force, caused by a 

sharp object, a gun, or some other instrument is clearly pertinent to how 

emergency responders and other providers would treat Chris’s injuries. 

Though the rule does not require that medical professionals actually rely on 
25

the statement, it is clear here that Roberts did in fact rely on it. Roberts 

testified that she “always” included information regarding what caused the 

injury, because the more information that she had the better she could treat 

Chris’ injuries. Therefore, for the same reasons the trial court found, the 

second prong of this test is satisfied. 

We have carefully considered whether EMS care reports containing 

hearsay statements are excepted from the rule against hearsay when made for 

the purpose of medical treatment or diagnosis. We hold that these statements 

are admissible under KRE 803(4), unless rendered inadmissible under some 

other rule of evidence. 

The statements contained in Roberts’ report satisfy the requirements 

under 803(4) for the reasons discussed above. We cannot say that the 

probative value of this evidence was substantially outweighed by its prejudice. 

Which weapon Wahl employed to exert force was highly probative to whether 

that force was necessary. That he used one weapon over another was 

minimally prejudicial. We conclude that it was not error for the trial court to 

admit the report. 

For the same reason, it was not error for the trial court to permit Roberts 

to testify about the report or its contents. 

C. The trial court did not err by denying Wahl’s motion for a mistrial as 

the Commonwealth did not violate KRE 404(c).

Alisha did not testify for the Commonwealth but was called by the 

defense. During her direct examination, Alisha discussed how she and Wahl 

had a loving relationship and intended to get married. During the 
26

Commonwealth’s cross examination of Alisha, she was asked whether she had 

ever been fearful of Wahl. Alisha denied being fearful of him and defense 

counsel objected. At the bench conference, the trial court sustained the 

objection and offered to admonish the jury to disregard the question. Defense 

counsel declined the admonition and moved for a mistrial.

Wahl argues that these two or so questions about whether Alisha was 

fearful of Wahl were inadmissible evidence under KRE 402, 403, and 404(b), 

and that he was not given adequate notice as required under KRE 404(c).30

Wahl argues that the only remedy for the implication that Wahl had assaulted 

Alisha in the past was a mistrial. However, Alisha answered that she was not 

fearful of Wahl and counsel’s timely objection prevented the entry of any 

evidence of domestic violence between Alisha and Wahl. Therefore, we hold 

that the trial court did not abuse its discretion in denying Wahl’s motion for a 

mistrial.

D. The trial court did not commit palpable error by admitting proof of 

Wahl’s prior convictions.

Wahl argues for reversal of his sentence and remand for a new penalty 

phase because the names of victims of his prior crimes were disclosed in 

 

30 The issue of admissibility under KRE 404 was preserved for appellate review 

by defense counsel’s contemporaneous objection and subsequent motion for a 

mistrial. RCr 9.22. The issue of admissibility under KRE 402 and 403 was not 

preserved, but Wahl requests review for palpable error. “Ordinarily, when an issue is 

unpreserved at the trial court, this Court will not review it unless a request for 

palpable error review under RCr 10.26 is made and briefed by the appellant.” 

Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd v. 

Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)) (emphasis added). Aside from his 

cursory request, Wahl failed to brief how the trial court’s ruling of admissibility under 

KRE 402 and 403 would constitute palpable error. Accordingly, we decline to address 

his argument concerning admissibility under KRE 402 and 403.
27

unredacted exhibits sent with the jury into deliberation.

31 Wahl argues that 

the trial court exceeded the scope of KRS 532.055 when copies of documents 

related to his prior convictions were introduced and sent into deliberations with 

the jury. The Commonwealth concedes that admission of certified copies of 

Wahl’s prior convictions that included victims’ names was error but argues that 

it did not result in manifest injustice, and, therefore, reversal is not warranted. 

“Kentucky’s Truth-in-Sentencing statute [(KRS 532.055)] is geared 

toward providing the jury with information relevant to arriving at an 

appropriate sentence for the particular offender.”32 KRS 532.055 allows the 

prosecution to introduce evidence related to sentencing during the penalty 

phase of a defendant’s trial. KRS 532.055(2)(a) states that “[e]vidence may be 

offered by the Commonwealth relevant to sentencing including: (1) [m]inimum 

parole eligibility, prior convictions of the defendant, both felony and 

misdemeanor; (2) [t]he nature of prior offenses for which he was convicted....”

This Court drew a bright line rule in Mullikan v. Commonwealth that “the 

evidence of prior convictions is limited to conveying to the jury the elements of 

the crimes previously committed.”33 Therefore, “[t]he trial court should avoid 

identifiers, such as naming of victims, which might trigger memories of jurors 

who may—especially in rural areas—have prior knowledge about the crimes.”

34

 

31 Wahl concedes this issue was unpreserved and requests this Court review for 

palpable error. RCr 10.26.

32 Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991).

33 341 S.W.3d 99, 109 (Ky. 2011).

34 Id.
28

The exhibits at issue here clearly violate this Court’s bright line rule. 

Submitting the records to the jury during deliberations was error. However, 

only if a “manifest injustice has resulted from the error” will we reverse under 

the palpable error standard.35

Palpable error is one “easily perceptible, plain, obvious and readily 

noticeable.”36 “[T]he required showing is probability of a different result or 

error so fundamental as to threaten a defendant’s entitlement to due process of 

law.”37 Our “focus is on what happened and whether the defect is so manifest, 

fundamental and unambiguous that it threatens the integrity of the judicial 

process.”

38

In Webb v. Commonwealth, this Court determined that the admission of 

detailed prior-conviction evidence, which included victims’ identities, was 

palpable error.

39 We held it was highly prejudicial for the identities of the 

victims, five of which were police officers, to be disclosed to the jury primarily 

because all of the victims in that case had also been law-enforcement or 

correctional officers.40 Similarly, in Stansbury v. Commonwealth, this Court 

found palpable error in the admission of the past victims’ names and records 

 

35 RCr 10.26.

36 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).

37 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

38 Id.

39 387 S.W.3d 319 (Ky. 2012).

40 Id.
29

detailing prior dismissed charges.

41 In Webb and Stansbury, this Court 

determined that because the improper evidence was either read to the jury by a 

witness or prosecutor or was referenced or emphasized by the prosecutor 

during argument, or both, that the unpreserved error required reversal. In the 

case at bar, however, no impermissible evidence of prior dismissed charges was 

introduced as in Stansbury, and the victim in this case was not remotely 

similar to the victims of Wahl’s previous offenses as were in Webb. The jury 

heard only proper information regarding Wahl’s criminal history and the 

prosecutor did not refer to the other inadmissible information. Therefore, we 

find the facts in Webb and Stansbury distinguishable.

The facts presented by the instant case are more closely related to those 

this Court considered in Martin v. Commonwealth42 and Wallace v. 

Commonwealth.

43

In Martin v. Commonwealth, “copies of the final judgments were 

introduced into evidence as documentary exhibits, and they did contain 

references to original charges that were ultimately dismissed or amended to 

lesser offenses.”

44 The prosecutor made no “testimonial or argumentative 

reference to the improper evidence,” and there existed “only the possibility that 

 

41 454 S.W.3d 293 (Ky. 2015).

42 409 S.W.3d 340 (Ky. 2013).

43 478 S.W.3d 291 (Ky. 2015).

44 Martin, 409 S.W.3d at 348.
30

the jurors might have gleaned that information if they looked at the judgments 

during their deliberations.”

45 This Court further noted that

[w]hatever prejudicial influence the exhibits may have 

exerted was not apparent to the trial court or to 

Appellant’s trial counsel. Even upon our presumption 

that the documents went to the jury room and the 

further assumption that the jury became aware of the 

original charges underlying Appellant’s prior 

convictions, we believe that it is unlikely that such 

knowledge affected the resulting sentence.46

Therefore, we held that “manifest injustice did not result and reversal for a new 

penalty phase is not appropriate.”

47

In Wallace: 

inadmissible evidence was only submitted to the jury 

through the various certified court documents and was 

intermingled with the properly admitted evidence. The 

Commonwealth’s witness recited to the jury only 

proper information regarding Wallace’s criminal 

history—namely, the offenses resulting in convictions, 

relevant dates, and sentences—and the prosecutor did 

not refer to the other inadmissible information in 

closing arguments.48 

Looking to Martin for instruction in Wallace, this Court found no palpable 

error, because there was no testimonial evidence or argumentative reference to 

any of the victims of Wallace’s prior convictions.

49 

 

45 Id. at 349.

46 Id. 

47 Id.

48 478 S.W.3d at 301.

49 Id. at 302.
31

Our holdings in Martin and Wallace are instructive and directly 

applicable in the instant case. Neither the prosecutor, the trial court, nor any 

witness referenced the names of the victims or their identities during the 

penalty phase, though the prosecutor did say that Wahl had been convicted of 

twenty-one felonies in an apparent reference to the twenty-one charges for 

which Wahl had either pled guilty or been convicted. The jury was entitled to 

know about these convictions. Despite this knowledge, the jury did not deliver 

the maximum sentence available. Further, the jury was presented with 

testimony supporting a theory that Wahl believed he acted in self-defense, or in 

defense of Alisha, but chose to reject it. We do not believe it more likely that 

the sentence would have been more lenient absent the inadmissible evidence. 

As a result, although there was error in submitting the unredacted 

exhibits to the jury, it was not palpable. Wahl’s sentencing was fundamentally 

fair. Wahl’s other crimes were not committed in Garrard County, and, 

therefore, are less likely to “trigger memories of jurors who may [. . .] have prior 

knowledge about the crimes.”50 Therefore, we hold now as we did in Wallace, 

that “the erroneous admission of the improper penalty-phase evidence did not 

result in manifest injustice and does not warrant reversal.”

51

III. CONCLUSION

For the reasons set forth above, the judgment of conviction and sentence 

of the Garrard Circuit Court are affirmed.

 

50 Mullikan, 341 S.W.3d at 109.

51 Wallace, 478 S.W.3d 291 at 302.
32

All sitting. All concur.

COUNSEL FOR APPELLANT:

Kathleen K. Schmidt

Assistant Public Advocate 

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron 

Attorney General of Kentucky 

Mark D. Barry

Assistant Attorney General