IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

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DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: SEPTEMBER 24, 2015 

NOT TO BE PUBLISHED 

S5uprrtur (Court of eTcfirttfurkv 

2014-SC-000392-MR 

PHARO WILSON APPELLANT 

ON APPEAL FROM KENTON CIRCUIT COURT 

V. HONORABLE PATRICIA M. SUMME, JUDGE 

NO. 12-CR-00765 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

A Kenton Circuit Court jury found Appellant, Pharo Wilson, guilty of 

three counts of criminal attempt to commit murder and found him to be a 

second-degree persistent felony offender (PFO); later, in a bifurcated trial, he 

was found guilty of being a felon in possession of a handgun. For these crimes, 

Appellant was sentenced to a total of seventy years' imprisonment. He now 

appeals as a matter of right, Ky. Const. § 110(2)(b), and argues that the trial 

court erred by: (1) denying Appellant's Batson motion; (2) allowing the 

prosecution to admit text messages without authentication; (3) failing to 

instruct the jury on applicable lesser-included offenses; and (4) improperly 

allowing Appellant's single prior felony conviction to be used as the basis for 

both his felon in possession of a handgun and PFO charges. 
I. BACKGROUND 

Carolyn Sleet called police to report an armed robbery during a poker 

game at her apartment in the City Heights housing projects in Covington, 

Kentucky. She informed the 911 operator that one of the players robbed the 

others at gunpoint. When police responded, Sleet identified the robber as 

Appellant and indicated that he played several hands of cards before robbing 

the other players. Sleet told police that Appellant also pointed the gun at her, 

but that he left after she begged him to do so. Sleet described Appellant's attire 

and told officers that his girlfriend, Keyairow Green, also lived in the projects. 

Several officers left Sleet's apartment and went to Green's, where police found 

her alone. Police searched the apartment and did not find Appellant, but they 

did find his wallet on Green's kitchen table. 

When the officers discovered that Green's mother, Carla Mullins, also 

lived in City Heights, they went to her apartment in search of Appellant. When 

no one answered the door at Mullins's apartment, one of the officers returned 

to Green's apartment, where he discovered Mullins had gone to check on 

Green, who was eight months pregnant. Mullins indicated that she had left 

her door unlocked in case Green needed her during the night and that she had 

awoken earlier to -Appellant pacing back and forth in her apartment. Mullins 

assumed something was wrong with Green when Appellant asked Mullins 

where Green was, and left her apartment to check on her daughter. Mullins 

gave the officers a key to her apartment and they returned to her unit. 

2 
When they arrived back at Mullins's apartment, the officers divided, with 

some going to the rear of the building and others to the front door. One of the 

officers at the front door heard shouting of "show me your hands" followed by 

gunshots. At that point, the two officers stationed at the front door went to the 

back of the building to assist, where they found the officers at the back of the 

building engaged in a shootout with a man hanging out of a second-story 

window. One of the officers was shot in the big toe and another received a 

grazing wound to his leg. In the ensuing confusion, the man shooting at the 

officers retreated into the apartment, eventually escaping out the front door 

and running into a wooded area behind the building. 

Based on the card players' statements and the belief that it was 

Appellant who shot at officers from Mullins's apartment, an arrest warrant was 

issued for Appellant. Appellant was arrested several days later and eventually 

indicted and charged with three counts of attempted murder, one count of 

first-degree assault, three counts of third-degree assault, possession of a 

handgun by a convicted felon, and of being a second-degree PFO. In a separate 

indictment, Appellant was later charged with one count of first-degree robbery. 

A Kenton Circuit Court jury found Appellant guilty of three counts of attempted 

murder, acquitted him of first-degree robbery, and found him to be a seconddegree PFO; later, in a bifurcated trial, he was found guilty of being a felon in 

possession of a handgun. For these crimes, Appellant was sentenced to a total 

of seventy years' imprisonment and now appeals to this Court. 

3 
II. ANALYSIS 

A. Batson Challenge 

Appellant first argues that the trial court erred in denying his Batson 

challenge. Appellant, an African-American male, objected to the 

Commonwealth's peremptory strike of an African-American female, the last 

remaining member of a minority on the jury panel. 

During the Commonwealth's voir dire, it asked the jury panel several 

questions concerning the City Heights housing project where the shots were 

fired. In response to these questions, a few of the jurors acknowledged that 

they had knowledge of.the projects and had family or friends who had lived 

there at some point. One of those jurors indicated that his wife and brother-inlaw lived there twelve or thirteen years ago and that he had a co-worker who 

lived at City Heights at one time. Another juror indicated that she had friends 

who had lived in the housing projects forty-five years earlier and yet another 

juror indicated that her husband had lived there many years ago as a child. 

The juror in question, M.D., was the only juror who responded that she had 

relatives living in the projects at the time of Appellant's trial. In fact, while she 

denied knowing their exact address or ever visiting their apartment, she said 

her two nephews lived on the same street as the building from which the shots 

were fired in this case. Her nephews were also close in age to Appellant and 

she stated "they know just about everybody up there." She indicated she 

believed it was a "rough" neighborhood based upon information her nephews 

had relayed to her. 

4 
When the parties were exercising their peremptory strikes, the 

Commonwealth moved to strike M.D. Appellant's counsel objected to the 

strike, arguing that it violated the dictates of Batson v. Kentucky, 476 U.S. 79 

(1986). As this Court has stated: 

In Batson, the U.S. Supreme Court outlined a three-step process 

for evaluating claims that a prosecutor has used peremptory 

challenges in a manner violating the Equal Protection Clause. Id. 

at 96-98, 106 S.Ct. at 1722-24. First, the defendant must make a 

prima facie showing that the prosecutor has exercised peremptory 

challenges on the basis of race. Id. at 96-97, 106 S.Ct. at 1722-23. 

Second, if the requisite showing has been made, the burden shifts 

to the prosecutor to articulate a race-neutral explanation for 

striking the jurors in question. Id. Finally, the trial court must 

determine whether the defendant has carried his burden of proving 

purposeful discrimination. Id. at 98, 106 S.Ct. at 1724. 

Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 1992). We will follow 

this three-prong test in analyzing Appellant's claim of error, keeping in mind 

that "the ultimate burden of showing unlawful discrimination rests with the 

challenger." Rodgers v. Commonwealth, 285 S.W.3d 740, 758 (Ky. 2009). We 

give the trial court's ruling on the Batson motion great deference and will 

review for clear error. Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 

2012). 

First, Appellant had to make a prima facie showing that the 

Commonwealth used its peremptory challenge to strike M.D. on the basis of 

her race. The trial court found that the Appellant made this showing, and we 

need not address this first matter further, as "once the Commonwealth has 

offered a race-neutral explanation for the peremptory challenge and the trial 

court has ruled on the ultimate issue of discrimination, the preliminary issue 

5 
of whether the defendant has made a prima facie showing is moot." Gamble v. 

Commonwealth, 68 S.W.3d 367, 371 (Ky. 2002). 

Once Appellant made his prima facie case, the burden shifted to the 

Commonwealth to provide a race-neutral explanation for its strike. We have 

held that this race-neutral reason does not have to rise to the level of a strike 

for cause and that "[t]he test is whether the prosecutor has a good-faith belief 

in the information and whether he can articulate the reason to the trial court 

in a race-neutral manner which is not inviolate of the defendant's 

constitutional rights." Snodgrass, 831 S.W.2d at 179. "At this step, all that is 

required is that a prosecutor's articulated reason for exercising a peremptory 

challenge be racially neutral on its face." Chatman v. Commonwealth, 241 

S.W.3d 799, 803-04 (Ky. 2007). "This step sets a fairly low bar for the 

Commonwealth to meet." Mash, 376 S.W.3d at 555. Furthermore, the United 

States Supreme Court has held, "the issue is the facial validity of the 

prosecutor's explanation. Unless a discriminatory intent is inherent in the 

prosecutor's explanation, the reason offered will be deemed race neutral." 

Hernandez v. New York, 500 U.S. 352, 360 (1991). 

Here, the Commonwealth gave several reasons for striking M.D. 

including her body language, her "intimate knowledge of City Heights" due to 

the fact that her nephews lived there, that her nephews knew "just about 

everybody up there," and that her nephews had told her it was a rough 

neighborhood. The Commonwealth did not believe M.D. was forthcoming when 

questioned about whether she knew any members of two of the area's families, 

6 
saying that it would be hard to believe than anyone who lived in City Heights 

would not have some knowledge. The Commonwealth also pointed out that 

M.D.'s address on the jury list was just a few blocks away from one of the 

prominent streets in the housing project. 

Then, defense counsel pointed out that M.D. does not live in City Heights 

and does not even know the exact location at which her nephews live. 

Appellant's counsel stated that there were several other jurors who had familial 

ties to City Heights who were not stricken. But, the Commonwealth countered 

that those ties were old, whereas M.D. had family members currently living on 

the same street as that on which the crime occurred. The Commonwealth 

stated that it was a distinct possibility that M.D.'s nephews knew Appellant 

since he spent a lot of time in City Heights and was around their age. The 

prosecutor believed these factors made M.D. more susceptible to outside 

influence and information without regard to her skin color and stated that this 

was the reason it wanted to strike her from the venire. 

The reasons offered by the Commonwealth for striking M.D. are all 

facially race-neutral, as they could apply to jurors of any racial background. 

As there was no discriminatory intent inherent in the Commonwealth's 

explanation, the trial court did not err in this regard. 

Appellant argues that the trial court's analysis stopped when it found 

that the Commonwealth gave a facially race-neutral reason for the strike rather 

than moving on to Batson's third step. We disagree, as the trial court went into 

an extensive review of its observations regarding the juror in question. 

7 
The third prong of Batson requires the trial court to "determine whether 

the defendant has carried his burden of proving purposeful discrimination." 

476 U.S. at 98. "In other words, having properly found that the 

Commonwealth's proffered reason was, on its face, racially neutral, the final 

step was for the trial court to determine if the Commonwealth's race-neutral 

reason was actually a pretext for racial discrimination. Because the trial 

court's decision on this point requires it to take credibility and demeanor of the 

attorneys into account, the trial court's ultimate decision on a Batson challenge 

is akin to a finding of fact, which must be afforded great deference by an 

appellate court." Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). 

The trial court indicated that it was very cognizant of M.D.'s responses 

during voir dire due to the fact that she and Appellant were members of the 

same minority. It also noted the nature of the small community in which the 

events leading up to the shooting took place. Without making a presumption 

about whether M.D. actually knew anything concerning the crime, the trial 

court noted that she does have two nephews who lived close by and that it is 

difficult not to draw inferences from that fact. The trial court stated that it 

carefully observed M.D.'s body language during voir dire, anticipating a Batson 

challenge, and noticed an immediate shift when Appellant's defense attorney 

started asking voir dire questions. According to the trial court, M.D. relaxed, 

smiled, and was responsive to Appellant's counsel's questions "which was not 

how she was to the prosecution." When Appellant's counsel pointed out that 

there were several jurors who were not responsive to the Commonwealth's 

8 
questions, the trial court agreed, but again pointed to the "notable" difference 

between when the Appellant's attorney asked questions and when the 

Commonwealth did the same. 

Appellant argues that the Commonwealth's reasons were not enough and 

that the trial court did not properly apply Batson's third step. He points to the 

fact that the "small community" referenced was predominately African 

American and that this could not be a race-neutral reason. However, we note 

that none of the other jurors who stated they knew someone who had lived in 

the neighborhood were African American. 

Appellant also argues that the Commonwealth's statement that it was 

uncertain if M.D. was truthful about not knowing any members of two families 

in the area (who happened to be African-American families related to one of the 

individuals Appellant allegedly robbed at gunpoint) is not a race-neutral 

reason, as it was akin to saying that because M.D. was black, she should know 

the other black families in the area. Having viewed the video record, we find no 

such overtones in the Commonwealth's statements. As previously stated, 

M.D.'s address listed on the jury sheet was in close proximity to City Heights 

and she had two nephews who lived there. Given the context, it appears that 

the prosecutor was commenting on the proximity of M.D.'s address to City 

Heights and the fact that she had family living in the projects. 

The trial court went to great lengths to discuss its observations of M.D. 

during voir dire and ultimately found that Appellant failed to carry his burden 

of proving purposeful discrimination. The trial court sat in a unique position to 

9 
assess the Commonwealth's credibility and we give its determination great 

deference. We hold that there was no clear error in the trial court's denial of 

Appellant's Batson challenge. 

B. Authentication 

Appellant next argues that the trial court erred in allowing the 

Commonwealth to admit text messages without proper authentication. These 

messages included, among other things, statements indicating that the person 

who sent the texts identified himself as "pharo." The messages also included 

statements concerning the shooting.' 

1The text messages were submitted along with a notarized affidavit from the 

records custodian from Cincinnati Bell certifying that the cell phone records were true 

and accurate and "were made at or near the time of the occurrence of the matters set 

forth in the records by (or from information transmitted by) a person with knowledge 

of those matters. These records are kept in the course of Cincinnati Bell's regularly 

conducted business and were made by the regularly conducted activity as a regular 

practice."This certification was in line with KRE 902, entitled "Self-Authentication," 

which reads, in pertinent part: 

Extrinsic evidence of authenticity as a condition precedent to 

admissibility is not required with respect to the following: 

(11) Business records. 

(A) Unless the sources of information or other 

circumstances indicate lack of trustworthiness, the original 

or a duplicate of a record of regularly conducted activity 

within the scope of KRE 803(6) or KRE 803(7), which the 

custodian thereof certifies: 

(i) Was made, at or near the time of the 

occurrence of the matters set forth, by (or 

from information transmitted by) a person 

with knowledge of those matters; 

(ii) Is kept in the course of the regularly 

conducted activity; and 

(iii) Was made by the regularly conducted 

activity as a regular practice. 

10 
At trial, Appellant's counsel argued that it was not clear that all of the 

text messages in question were sent from Appellant, as, on a few occasions, the 

person texting from the phone number identified himself as "mario." Defense 

counsel pointed out that all of the messages in which the individual identified 

himself as "pharo" occurred the day before the shooting and that there is no 

proof that Appellant was the one who sent the text messages in question 

regarding the shooting. 

The prosecution countered at trial that, in its opening statement, the 

defense alleged that Appellant only fired two shots and described them as being 

two stories over the police officers' heads—in stark contrast to testimony which 

would be introduced at trial by the officers that Appellant fired approximately 

ten shots directly at them. Therefore, the prosecution particularly wanted to 

introduce one of the text messages that read, "how many got shot cuz I was 

letting loose" to contradict the opening statement. The Commonwealth argued 

this would allow the jury to infer that Appellant fired more than two shots and 

would also tend to prove that Appellant knew he was shooting at more than 

one police officer (which, it argued, was relevant, given that Appellant was 

charged with three counts of attempted murder). The prosecution also wanted 

to introduce a few other text messages to show that it was Appellant's phone 

and to show that people began texting Appellant at that number when they 

found out he had been in a shootout with police. 

11 
Ultimately, the trial court allowed the introduction of some of the text 

messages, finding that the connection between Appellant and the phone was 

clear. The trial court went on to find that the records were self-authenticating 

business records under KRE 902 and created a significant indicia of reliability. 

The admitted text messages included several in which the person at the phone 

number in question identified himself as "mario" and several in which he 

identified himself as "pharo." The admitted messages also included messages 

related to the shooting. 

Appellant agrees that the messages were obtained from the phone 

company and amounted to business records made in the ordinary course of 

business, however, he argues that, in spite of this fact, they were still not 

properly authenticated, as the prosecution failed to prove that Appellant was 

the person who actually sent or received the text messages. The 

Commonwealth responds that these messages were properly authenticated, as 

two witnesses testified that the phone number for which the records were 

obtained was the number they used to get in touch with Appellant. 

Specifically, Carla Mullins testified that she had Appellant's number saved in 

her phone under "Pharo" and that when she wanted to call him, she would find 

that entry in her phone and press call. When she called the number saved in 

her phone, Mullins testified that she reached Appellant. Keyairow Green also 

testified that she had used Mullins's cell phone to initiate and receive calls and 

text messages from Appellant. She stated that Appellant's number was saved 

in Mullins's phone under the name "Pharo" and that it was a reliable way to get 

12 
in touch with Appellant and that he replied to text messages sent to that 

number. 

The Commonwealth argues that there is ample evidence that Appellant 

sent the messages. Not all of the messages certified by Cincinnati Bell and 

included in the record were admitted at trial, as they were redacted, but the 

Commonwealth points out that the individual responding from the number in 

question identified himself as "pharo" in the text messages several times. This 

Court notes that it examined the records carefully and found no less than six 

instances in which the individual identified himself as "pharo" and one in 

which he answered "p.h.a.r.o" when another person asked who he was. The 

Commonwealth also notes in its brief that Appellant eventually conceded at 

trial that he was the individual who fired the shots and that some of the 

admitted text messages discussed details about the shooting. Having 

explained the parties' arguments, we turn now to the law surrounding 

authentication. 

"The concept of authentication (or the laying of a `foundation,') relates to 

a trial court's need for preliminary proof of two things: (1) the pertinence of the 

proposed evidence to the litigation, and (2) that a document is what its 

proponent claims it to be." Bell v. Commonwealth, 875 S.W.2d 882, 886 (Ky. 

1994). Furthermore, "a party seeking to introduce an item of tangible evidence 

need not satisfy an 'absolute' identification requirement, and evidence is 

admissible if the offering party's evidence reasonably identifies the item. We 

grant trial courts wide discretion over issues relating to the admissibility of 

13 
tangible evidence because the foundation sufficient for admissibility will vary 

based on the nature of the item . . . ." Grundy v. Commonwealth, 25 S.W.3d 

76, 80 (Ky. 2000) (footnote omitted). "On appellate review, the trial court's 

finding of authentication is reviewed for abuse of discretion." Johnson v. 

Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). For the reasons that follow, 

we affirm the trial court and hold that it did not abuse its discretion. 

Kentucky Rules of Evidence 901(a) provides: "The requirement of 

authentication or identification as a condition precedent to admissibility is 

satisfied by evidence sufficient to support a finding that the matter in question 

is what its proponent claims." The rule goes on to provide examples of 

authentication that comport with the rule and specifically includes "[testimony 

of witness with knowledge. Testimony that a matter is what it is claimed to 

be." KRE 901(b)(1). Another example the rule gives is "[d]istinctive 

characteristics and the like. Appearance, contents, substance, internal 

patterns, or other distinctive characteristics, taken in conjunction with 

circumstances." KRE 901(b)(4). 

As previously noted, Appellant does not argue that there was any 

problem with the text messages themselves or that they had been modified 

from their original form, but rather, Appellant argues that the Commonwealth 

did not prove that Appellant was the individual who sent and received them. 

However, as this Court held in Ordway v. Commonwealth, 352 S.W.3d 584, 593 

(Ky. 2011) when reviewing the authentication of a letter purportedly written by 

the appellant in that case: "[t]he burden on the Commonwealth to establish 

14 
that the letter was written by Appellant is 'slight' and requires only a prima 

facie showing. Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky.2010). 

The contents of the letter, taken in conjunction with the circumstances, can be 

relied upon in determining authentication. KRE 901(b)(4)." 

As detailed above, two witnesses with knowledge of Appellant's cell phone 

number testified that they both used the number in question to get in touch 

with him. This was proper evidence for authentication pursuant to KRE 

901(b)(1). Furthermore, the content of the texts, including several instances in 

which the individual sending and receiving text messages at that number 

identified himself as "pharo" and gave details concerning the shooting provided 

authentication, just as the contents of the letter in Ordway did. 

We hold that the Commonwealth's evidence reasonably identified the text 

messages as required by Grundy, 25 S.W.3d at 80. Therefore, given the 

testimony presented at trial and the context of the text messages, the trial 

court did not abuse its discretion in admitting them. 

Appellant also argues that the text messages amounted to inadmissible 

hearsay. Appellant only cites one case from the Pennsylvania Supreme Court, 

Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011), for this premise. In 

Koch, a police detective had transcribed messages from Appellant's phone. 

This differs markedly from the business records secured from the phone 

company in the case at bar. Furthermore, KRE 803(6) provides an exception to 

the prohibition against hearsay for "Hecords of regularly conducted activity." 

Appellant admits that the records in this case were regularly maintained by 

15 
Cincinnati Bell. Since the records of the text messages fall under an exception 

to our general prohibition against hearsay, and Appellant cites no case law 

binding upon this Court that suggests otherwise, we will delve into the issue no 

further and affirm the decision of the trial court. 

C. Jury Instructions 

Appellant next alleges that the trial court erred when it failed to instruct 

the jury on applicable lesser-included offenses. Specifically, Appellant 

tendered jury instructions to the trial court which would have instructed the 

jury on the lesser-included offense of wanton endangerment in both the first 

and second degrees. The trial court rejected these proffered instructions and 

instructed the jury only on three counts of attempted murder and three 

degrees of assault as lesser-included offenses. 

This Court reviews a trial court's refusal to give a lesser-included offense 

instruction under the 'reasonable juror' standard set out in Allen v. 

Commonwealth: 

[W]e review a trial court's decision not to give a criminal offense 

jury instruction under the same "reasonable juror" standard we 

apply to the review of its decision to give such an instruction. See 

Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). 

Construing the evidence favorably to the proponent of the 

instruction, we ask whether the evidence would permit a 

reasonable juror to make the finding the instruction authorizes. 

We typically do not characterize our review under this standard as 

either de novo or for abuse of discretion . . . . In this context, the 

characterization makes little difference and so the inconsistency is 

more apparent than real. . . . Regardless of the characterization, 

however, the "reasonable juror" is the operative standard, in the 

appellate court as well as in the trial court. 

16 
338 S.W.3d 252, 255 (Ky. 2011). Therefore, we construe the evidence most 

favorably to the proponent of the instruction and "ask whether the evidence 

would permit a reasonable juror to make the finding the instruction 

authorizes." Id. 

The trial court has the duty in a criminal case "to prepare and give 

instructions on the whole law of the case, and this rule requires instructions 

applicable to every state of the case deducible or supported to any extent by the 

testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). 

However, "lain instruction on a lesser-included offense is appropriate if and 

only if on the given evidence a reasonable juror could entertain 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." Skinner v. 

Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993). 

In order for the jury to convict Appellant of criminal attempt to commit 

murder, it had to believe beyond a reasonable doubt that Appellant shot at the 

officers with the intent to kill them and that this constituted a substantial step 

in a course of conduct planned to result in their death. Appellant insists that 

the instructions should have contained the lesser-included offenses of firstand second-degree wanton endangerment. Under such instructions, the jury 

would have had to believe beyond a reasonable doubt either that—for first 

degree wanton endangerment—Appellant discharged a handgun, thereby 

wantonly creating a substantial danger of death or serious physical injury to 

the officers and that this conduct manifested an extreme indifference to the 

17 
value of human life; or—for second-degree wanton endangerment—that 

Appellant discharged a handgun and, thereby, wantonly created a substantial 

danger of physical injury to the officers. 

We find the commentary accompanying the statutes for first- and 

second-degree wanton endangerment instructive here. The commentary 

provides: "The offenses created by KRS 508.060 and 508.070 can best be 

described by use of this hypothetical situation: D, with no intent to kill or 

injure but with an awareness of the risk involved, shoots a gun into an 

occupied building, thereby consciously disregarding the risk of death or injury 

to its occupants." We have held: "Miring a weapon in the immediate vicinity of 

others is the prototype of first degree wanton endangerment. This would 

include the firing of weapons into occupied vehicles or buildings." Swan v. 

Corn., 384 S.W.3d 77, 102 (Ky. 2012) (quoting Robert G. Lawson 86 William H. 

Fortune, Kentucky Criminal Law § 9-4(b)(2), at 388 n. 142 (1998) (internal 

quotation marks omitted)). 

In Swan, the appellants had fired shots into the ceiling of a home toward 

specific individuals located in the front of said home. Id. at 84-86. This Court 

held that one of the individuals in the home was not wantonly endangered, as 

she had hidden in the other end of the home, and no evidence was presented at 

trial that "a bullet was fired in [her] direction." Id. at 103. That is not the case 

here. The officers testified that Appellant had the gun angled downward 

toward them, and one of the officers testified that he saw Appellant aiming at 

him. Appellant was not merely firing into a home where he could not actually 

18 
see his would-be victims, as was the appellant in Swan—and not testimony 

was presented to that regard. Rather, from the evidence, we cannot hold that 

"a reasonable juror could entertain 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." Skinner, 864 S.W.2d at 298. The evidence in the 

present case simply does not support a finding that Appellant acted with no 

intent to kill or injure the officers. 

Appellant attempts to distinguish the case at bar from this Court's 

decision in Goodman v. Commonwealth, No. 2007-SC-000290-MR, 2008 WL 

2167538, at *5 (Ky. May 22, 2008), where we held, "[t]he totality of the evidence 

demonstrates that Appellant's shots were intentional and purposeful. No 

wanton endangerment instruction was warranted and there was no error." In 

that case, evidence was presented at trial that the appellant told one of the 

officers that he would shoot her in the head. Appellant argues that the fact 

that he made no such statement to police is enough to set his case apart from 

Goodman. However, while Appellant did not explicitly tell the officers that he 

planned to shoot them in the case at bar, evidence was presented that 

Appellant yelled something like "fuck you bastards" to the police before he 

began shooting. Coupled with the officers' testimony that Appellant was 

pointing the gun in their direction and/or aiming at them, a reasonable juror 

could not have found that he acted wantonly rather than intentionally. 

Defense counsel attempted to use the fact that only two shell casings 

were recovered from the scene to argue that Appellant only fired two shots, 

19 
which amounted to warning shots fired twenty feet above the officers' heads. 

However, the fact that officers fired a total of 32 rounds and only 20 of their 

shell casings were recovered from the scene shows that not all of the casings 

were recovered. Two of the officers were shot—one in the toe and another 

received a grazing wound to his leg. The properly-admitted text messages 

included one text sent by the number known to at least two witnesses to be 

Appellant's which read "how many got shot cuz I was letting loose." This 

statement provides more evidence of Appellant's intent. In fact, the Appellant 

points to no evidence contained in the record that he acted wantonly (and nor 

do we find any). 

We also distinguish this case from our recent opinion in Hall v. 

Commonwealth, No. 2012-SC-000423-MR, 2015 WL 4967454, at *11 (Ky. Aug. 

20, 2015) (not yet final as of the rendition of this opinion). In Hall, the 

appellant argued that he should have received a directed verdict on four counts 

of wanton endangerment. The appellant therein used a high-power hunting 

rifle to kill two of his neighbors, one of whom fell in the doorway of his home 

when struck. There were four children inside the home and, in addition to two 

counts of murder, the appellant was convicted of first-degree wanton 

endangerment as to the children. Id. That case is unlike the present case. 

Here, Appellant was aiming at the officers when he fired his weapon. Had 

Appellant been charged with attempted murder as to bystanders at whom he 

was not intentionally aiming, an instruction for wanton endangerment would 

have been warranted. However, those are simply not the facts with which we 

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are presented. "To be convicted, the defendant must have both acted with the 

requisite mental state and created the danger prohibited by the statute." Id. 

There was no evidence presented that Appellant acted anything less than 

intentionally when firing at the officers. 

The evidence at trial would not have allowed a reasonable juror to find 

that Appellant had committed the crime of wanton endangerment. Therefore, 

the trial court did not err in failing to instruct the jury on first- and seconddegree wanton endangerment as a lesser included offense. 

D. Prior Felony Conviction 

Appellant's final argument is that the trial court improperly allowed 

Appellant's one prior felony conviction to be used as the basis for his 

convictions for both felon in possession of a handgun and second-degree PFO. 

At trial, the parties stipulated that Appellant had only one prior felony, and the 

trial court ruled that the possession of a handgun count could not be 

enhanced, thus limiting any potential PFO enhancement to Appellant's 

criminal attempt to commit murder convictions. 

This Court decided this very issue only two years ago in Oro-Jimenez v. 

Commonwealth, 412 S.W.3d 174, 180 (Ky. 2013). Prior to that case, this Court 

had never ruled on a double enhancement case where one prior felony 

conviction had been used to both establish an offense (felon in possession of a 

handgun) and enhance the sentence for another. However, we noted that "tile 

Court of Appeals addressed this scenario in O'Neil v. Commonwealth, 114 

S.W.3d 860 (Ky.App.2003). In O'Neil, there was no double enhancement when 

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a single prior felony conviction was used to establish the offense of possession 

of a handgun by a convicted felon and to enhance a second-degree burglary 

sentence. 114 S.W.3d at 864." In Oro-Jimenez, we adopted the Court of 

Appeals' reasoning in O'Neil and held "the use of Appellant's single prior felony 

conviction to establish the offense of possession of a handgun by a convicted 

felon and to enhance the first-degree robbery sentences under the PFO statute, 

did not constitute double enhancement. Thus, the Commonwealth's use of 

Appellant's single prior felony conviction was not error . . . ." 

Just as in Oro-Jimenez, Appellant's prior felony was used to create his 

charge of felon in possession of a handgun (but not also to enhance it) and to 

enhance his penalties for other felonies. We see no reason to depart from our 

recent precedent which considered this very issue, and, therefore, affirm the 

trial court. 

HI. CONCLUSION 

For the foregoing reasons, we affirm Appellant's convictions and 

corresponding sentence. 

All sitting. All concur. 

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COUNSEL FOR APPELLANT: 

Linda Roberts Horsman, Assistant Public Advocate 

COUNSEL FOR APPELLEE: 

Jack Conway, Attorney General of Kentucky 

Matthew Robert Krygiel, Assistant Attorney General