RENDERED: APRIL 16, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1287-MR

TIMOTHY JOHN FELKER APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JOHN E. REYNOLDS, JUDGE

ACTION NO. 18-CR-00524 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Timothy John Felker brings this appeal from an August 12, 

2019, final judgment of the Fayette Circuit Court sentencing Felker to one-year 

and six-months’ imprisonment upon his conviction of second-degree terroristic 

threatening. We affirm.

During the 2017-2018 school year, Felker was a senior enrolled in 

Paul Laurance Dunbar High School (high school) in Lexington, Kentucky. In 
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February 2018, the high school received numerous tips that Felker had threatened 

to shoot students and others at the high school. The principal of the high school 

informed the Lexington Police Department about the tips as to Felker. The police 

conducted an investigation and eventually seized an AR-15 firearm with numerous 

rounds of ammunition that belonged to Felker. The police interviewed Felker and 

students at the high school. During the interview, Felker admitted to threatening to 

shoot up the school and certain students.

In May of 2018, Felker was indicted by a Fayette County Grand Jury 

upon the offense of terroristic threatening in the second degree. A jury trial ensued

in July 2019, and Felker was convicted of same. By final judgment and sentence 

of imprisonment entered August 12, 2019, Felker was sentenced to one-year and 

six-months’ imprisonment. This appeal follows.

Felker contends that the circuit court erroneously failed to instruct the 

jury upon lesser-included offenses. In particular, Felker asserts that a jury 

instruction should have been given upon terroristic threatening in the third degree 

and harassment. As to third-degree terroristic threatening, Felker argues:

[T]he defense requested an instruction on Terroristic 

Threatening, Third Degree. The only difference in 

elements in the instructions for Terroristic Threatening, 

Third Degree and Second Degree would be a finding 

that the defendant’s threat would take place at a school. 

Terroristic Threatening, Third Degree meets both the 

statutory test outlined in [Kentucky Revised Statutes
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(KRS)] 505.020, as well as the broader test from Hall[1]

and Perry.

[2] Evidence was adduced at trial that Timothy 

made statements of intent to shoot specific students. The 

jury could have chosen to believe that the nature of these 

threats was not tied to the school and could have 

convicted on the lesser-included offense. Therefore, it 

was error to deny the instruction, and the defendant was 

denied due process by the Court in doing so. Reversal is 

appropriate.

Felker’s Brief at 16-17.

As to harassment, Felker maintained:

The primary difference in this offense of 

Harassment and Terroristic threatening, Second Degree is 

the intent of the defendant. In the case of Terroristic 

Threatening, the defendant intends to threaten another 

person; with Harassment, the defendant intends to 

intimidate, harass, annoy, or alarm another person. 

Throughout the trial, the defense argued that Timothy’s 

statements were idle talk or jesting; a bad sense of humor 

designed to annoy other students. The defense relied 

upon the case of Thomas v. Com[monwealth], 574

S.W.2d 903 (Ky. App. 1978) which dealt with the 

constitutionality of KRS 508.080. . . .

Students at trial testified that they were not sure 

whether Timothy’s statements were jokes or were 

serious. The jury should have been allowed to make a 

determination on this issue. The legislature created 

different levels of culpability based upon the intent of the 

accused. Those that intend a statement to be a threat are 

culpable for Terroristic Threatening, Second Degree, a 

Class D Felony. Those that make statements of intent to 

harm, but do so only to annoy, are guilty of Harassment, 

 

1 Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011).

2 Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992).
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a violation. By denying the defendant the right to present 

this defense, his due process rights were violated. The 

jury was given no option to consider the defense’s theory 

that Timothy merely harassed; he did not threaten. . . . 

Felker’s Brief at 17-18.

Thus, Felker maintains that the circuit court committed reversible 

error by failing to instruct the jury upon third-degree terroristic threatening and 

harassment. 

It is well established that a jury instruction upon a lesser included

offense is proper when “a reasonable juror could entertain a reasonable doubt of 

the defendant’s guilt on the greater charge, but believe beyond a reasonable doubt 

that the defendant is guilty of the lesser offense.” Osborne v. Commonwealth, 43 

S.W.3d 234, 244 (Ky. 2001). Also relevant to this appeal, KRS 505.020(2) 

provides that an offense is considered to be lesser included if: 

(a) It is established by proof of the same or less than all 

the facts required to establish the commission of the 

offense charged; or

. . . .

(c) It differs from the offense charged only in the respect 

that a lesser kind of culpability suffices to establish its 

commission[.]

KRS 505.020(2)(a) and(c); see Hall v. Commonwealth, 337 S.W.3d 595, 605 (Ky. 

2011).
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Second-degree terroristic threatening is found in KRS 508.078 and 

provides, in relevant part:

(1) A person is guilty of terroristic threatening in the 

second degree when, other than as provided in KRS 

508.075, he or she intentionally:

(a) With respect to any scheduled, publicly advertised 

event open to the public, any place of worship, or 

any school function, threatens to commit any act 

likely to result in death or serious physical injury 

to any person at a scheduled, publicly advertised 

event open to the public, any person at a place of 

worship, or any student group, teacher, volunteer 

worker, or employee of a public or private 

elementary or secondary school, vocational school, 

or institution of postsecondary education, or to any 

other person reasonably expected to lawfully be on 

school property or at a school-sanctioned activity, 

if the threat is related to their employment by a 

school, or work or attendance at school, or a 

school function. A threat directed at a person or 

persons at a scheduled, publicly advertised event 

open to the public, place of worship, or school 

does not need to identify a specific person or 

persons or school in order for a violation of this 

section to occur[.]

Third-degree terroristic threatening is set forth in KRS 508.080 and 

reads, in relevant part:

(1) Except as provided in KRS 508.075 or 508.078, a 

person is guilty of terroristic threatening in the third 

degree when:

(a) He threatens to commit any crime likely to result 

in death or serious physical injury to another 
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person or likely to result in substantial property 

damage to another person[.]

And, harassment is codified in KRS 525.070, which provides, in relevant part:

(1) A person is guilty of harassment when, with intent to 

intimidate, harass, annoy, or alarm another person, he or 

she:

. . . .

(f) Being enrolled as a student in a local school 

district, and while on school premises, on schoolsponsored transportation, or at a school-sponsored 

event:

. . . .

3. Creates a hostile environment by means of any 

gestures, written communications, oral 

statements, or physical acts that a reasonable 

person under the circumstances should know 

would cause another student to suffer fear of 

physical harm, intimidation, humiliation, or 

embarrassment.

As to third-degree terroristic threatening, Felker maintains evidence 

was introduced that he threatened to shoot specific students, and the jury could 

have found that these threats were not associated with school. For this reason, 

Felker believes he was entitled to a jury instruction upon third-degree terroristic 

threatening.

However, the evidence introduced at trial was that Felker threatened 

to shoot up the school and target particular students at the school. For instance, 
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there was testimony that Felker indicated that a specific student would be shot first. 

At trial, the evidence as a whole demonstrated that Felker threatened to shoot 

students during a school shooting event. Therefore, we do not believe a rational 

juror could find that Felker’s threats were unrelated to a school setting. 

Consequently, the circuit court did not err by failing to give a jury instruction upon 

third-degree terroristic threatening. 

As to harassment, Felker argues that it is a lesser included offense of 

second-degree terroristic threatening. Under second-degree terroristic threatening, 

Felker maintains that a defendant must intend to threaten to commit an act that is 

likely to result in death/serious physical harm; whereas, with harassment a 

defendant must only intend to intimidate, harass, annoy or alarm another person. 

To be considered a lesser included offense, the lesser offense must 

differ from the greater only in respect to a lesser state of culpability or the lesser 

offense must be established by evidence of the same or less than all the facts 

required to prove the greater offense. With harassment, a defendant must have 

intended to intimidate, harass, annoy, or alarm; in contrast, with second-degree 

terroristic threatening, the defendant must intend to threaten to commit any act 

likely to cause death/serious physical harm. More importantly, harassment 

requires proof of facts that are not required for second-degree terroristic 
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threatening. Notably, the facts must demonstrate that a defendant created a hostile 

environment at school to be guilty of harassment. 

Under second-degree terroristic threatening, it is not necessary to 

introduce evidence that a defendant created a hostile environment at school with 

his threats. Consequently, it is evident that harassment requires proof of facts not 

required under second-degree terroristic threatening. In view thereof, we conclude 

that harassment is not a lesser included offense of second-degree terroristic 

threatening. See Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000).3

Felker next asserts that the Commonwealth committed prosecutorial 

misconduct during closing argument. Felker maintains the Commonwealth 

misstated the law by stating:

“I’m going to shoot up the school, and I’m going to start 

with you. I wanted to hurt people by shooting them.”

When the defendant said these words he was guilty of 

Terroristic Threatening, Second Degree. Saying the 

words is the crime. The defendant is guilty.

. . . .

The legislature made the utterance of these words 

intentionally, and these types of statements even if the 

defendant had no intention even if the defendant had no 

intention [sic] of carrying out those acts. Saying that you 

are going to shoot up the school is illegal, just as yelling 

 

3 Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000), the Supreme Court held that “if the 

lesser offense requires proof of a fact not required to prove the greater offense, then the lesser 

offense is not included in the greater offense, but is simply a separate, uncharged offense.”
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fire in a crowded theater . . . saying those words 

intentionally is the crime.

Felker’s Brief at 20 (footnotes omitted). Felker points out that he objected to the 

improper closing argument, but the circuit court overruled the objection. Felker 

maintains that KRS 508.078(1)(a) does not apply if the threat merely was made 

jokingly or in jest. Rather, Felker asserts that KRS 508.078(1)(a) requires the 

intent that the statement be a threat. Felker maintains that the Commonwealth

misled the jury in closing arguments as to the intent required by KRS 

508.078(1)(a), and the circuit court committed reversible error by denying his 

objection during closing argument.

Prosecutorial misconduct is defined as “a prosecutor’s improper or 

illegal act involving an attempt to persuade the jury to wrongly convict a defendant 

or assess an unjustified punishment.” Murphy v. Commonwealth, 509 S.W.3d 34, 

49 (Ky. 2017) (quoting Commonwealth v. McGorman, 489 S.W.3d 731, 741-42

(Ky. 2016)). Prosecutorial misconduct can occur during closing argument. 

Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). And, “[i]f the 

misconduct is objected to, we will reverse on that ground if proof of the defendants 

guilt was not such as to render the misconduct harmless, and if the trial court failed 

to cure the misconduct with a sufficient admonition to the jury.” Murphy, 509 

S.W.3d at 49 (quoting Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). 
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We must also consider the closing argument as a whole and that counsel enjoys 

wide latitude. Murphy, 509 S.W.3d at 50.

Viewing the closing argument as a whole, we do not believe the 

Commonwealth committed prosecutorial misconduct. The Commonwealth 

emphasized that Felker intentionally made threats to shoot up the school and 

students. The Commonwealth stated that these threats were not made jokingly but 

were made with intent. As support, the Commonwealth pointed to Felker’s 

repeated statements that he was going to shoot up the school and certain students. 

Also, the Commonwealth emphasized the AR-15 firearm Felker purchased with 

450 rounds of ammunition, his claims of wanting to commit suicide, and students’

testimony that they viewed Felker’s threats as serious to the extent they were even 

frightened to go to school. Perhaps inartful at times, we cannot say that the 

Commonwealth’s closing argument was improper. Even if it were improper, no 

reversible error occurred as the Commonwealth presented overwhelming evidence 

of Felker’s guilt.

Felker finally asserts that the circuit court improperly admitted 

testimony during trial resulting in reversible error. The Commonwealth called Jill 

Felker, Felker’s mother, during its case in chief. Felker, particularly points to the

following testimony of Jill:
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Prosecutor: When the police came to your house on 

February 17th of 2017, what did you say about your son in 

comparison to Nikolas Cruz?

Jill Felker: When something like that happens, I watch 

CNN a lot. I mean I saw comparisons.

Prosecutor: What did you say?

Jill Felker: They were both cutters. Neither one had 

been adjudicated as mentally ill. But Timothy doesn’t 

run around outside in his underwear wearing a MAGA 

hat like Nikolas Cruz was reported to have done.

Court: I think the question is “what did you say to the 

police that were there at the time?”

Jill Felker: I just said there were similarities. They both 

had AK . . . no AR-15, not AK-47.

Court: You told the police that?

Jill Felker: I don’t recall saying they both had an AR-15 

because I think everybody knew they both did . . .

Court: The question is “what did you tell the police 

when they arrived regarding Nikolas Cruz?”

Jill Felker: I just said I had watched a lot of it. Timothy 

thought it was messed up that he had shot up the school, 

and that basically they were both cutters. You know I 

know other people who have been cutters. It doesn’t 

mean they are going to go shoot up a school somewhere.

Prosecutor: Did you tell the police, “Yeah. I heard that 

Nikolas Cruz had done that too. The similarities, they 

just keep coming.”
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Jill Felker: Had done what too?

Prosecutor: Did you say “Yeah. I heard that Nikolas 

Cruz had done that too. The similarities, they just keep 

coming.”

Jill Felker: Did what too?

Prosecutor: When the police came to your home did 

you draw similarities between your son and Nikolas 

Cruz?

Jill: Yes . . . but my son did not and had no intentions of 

shooting up the school.

Prosecutor: And Nikolas Cruz is the Marjorie Stone 

Douglas Parkland, Florida School Shooter?

Jill Felker: Yes.

Felker’s Brief at 8-9. Felker argues the above testimony should have been 

excluded because it was highly prejudicial. Felker maintains that Jill’s comparison 

of Felker to the Parkland school shooter, Nikolas Cruz, only served to inflame the 

passion of the jury. Thus, Felker alleges it should not have been admitted due to 

its prejudicial effect.

Kentucky Rules of Evidence (KRE) 401 defines relevant evidence as 

having “any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be 

without the evidence.” However, pursuant to KRE 403, relevant “evidence may be 

excluded if its probative value is substantially outweighed by the danger of undue 
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prejudice[.]” It must be emphasized that “[t]he task of weighing the probative 

value and undue prejudice of proffered evidence is inherently factual and, 

therefore, within the discretion of the trial court.” Ross v. Commonwealth, 455 

S.W.3d 899, 910 (Ky. 2015). The improper admission of evidence is considered 

harmless error “if the reviewing court can say with fair assurance that the judgment 

was not substantially swayed by the error.” Winstead v. Commonwealth, 283 

S.W.3d 678, 689 (Ky. 2009).

Upon Felker’s objection to Jill’s testimony, the Commonwealth 

explained to the court that the testimony was highly relevant as it constituted her 

observation of her son and effectively rebutted Felker’s defense at trial that his 

alleged threats were mere jokes. Although relevant, we do believe that Jill’s 

testimony was prejudicial, and when weighing the probative value against its 

prejudicial effect, we are inclined to conclude that the circuit court abused its 

discretion under KRE 403. Nonetheless, we also conclude that the error was 

harmless. Jill’s testimony comparing Felker to the Parkland school shooter lasted 

only minutes. Moreover, Jill also testified that she did not believe her son would 

engage in a shooting spree at school. Upon the whole, we conclude with fair 

assurance that the jury’s guilty verdict was not substantially swayed by Jill’s 

testimony. See Winstead, 283 S.W.3d at 689.
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For the foregoing reasons, the final judgment of the Fayette Circuit 

Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Bradley Clark

Lexington, Kentucky

R. Tucker Richardson

Lexington, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Frankfort, Kentucky

Jenny L. Sanders

Assistant Attorney General

Frankfort, Kentucky