RENDERED: JUNE 9, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0588

- MR
TOBY AKERS APPELLANT

v. APPEAL FROM FLOYD CIRCUIT COURT

HONORABLE THOMAS M. SMITH, JUDGE ACTION NO. 20

- CR

- 00122

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: DIXON, GOODWINE, AND KAREM, JUDGES. KAREM, JUDGE: Toby Akers (“Akers”) appeals his convictions for second

degree escape and being a first

- degree persistent felony offender. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND

In a pending circuit court case, t he Floyd Circuit Court placed Akers
in a home incarceration program ( “ HIP ” ) as a condition of his pretrial release.- 2

-

Akers enrolled in a HIP program managed by a private company named East Kentucky Home Incarceration (“East Kentucky”)

. Before his enrollment, a representative from East Kentucky review ed East Kentucky’s registration form and contract with Akers while Akers was incarcerated

. Akers signed the contract and initialed each page.

Approximately one (1) month after being placed on HIP, Akers cut his ankle monitor and left his home without p ermission. Akers was ultimately apprehended at a hotel and charged with second

- degree escape.

At his trial for second

- degree escape , Akers testified that while he was on HIP, a man named Wes Martin had threaten ed him and his family. Akers asserted that he removed his ankle monitor and left his home after the police’s alleged fail ure to act regarding Martin’s threats

. However, o n rebuttal, various witnesses testified that no record existed of Akers contact ing the police

.

Akers further te stified at his trial that he had used methamphetamine in his cell before meeting with the East Kentucky representative to sign the East Kentucky contract

. In addition, o ther inmates alleged ly around Akers on the day he signed the East Kentucky contract, including Akers’s son Josh , testified that Akers exhibited slurred speech, glassy eyes, and erratic behavior on the day in question

. Nevertheless , Josh acknowledged on cross - examination that Akers could understand basic questio ns.- 3

- Additionally, Akers testified that he had not read the East Kentucky
contract before signing

. Specifically, A kers claimed that the East Kentucky representative offered to read the paperwork to him, but Akers replied , “What does it really matter? I’ve already signed them anyway.”

T he jury ultimately found Akers guilty of second

- degree escape and being a first

- degree persistent felony offender ( “ PFO ” ) , and t he circuit court sentenced him to sixteen ( 16 ) years imprisonment. This appeal follow ed

.

We will discuss further facts as they become relevant.

ANALYSIS

a. Third
- Degree Escape Jury Instruction
Akers first argues on appeal that the trial court should have instructed the jury on third

- degree escape as a lesser

- included offense. As a preliminary
matter, w e review a trial court’s decision declining to give a jury instruction for an abuse of discretion. Williams v. Commonwealth , 178 S.W.3d 491, 498 (Ky. 2005). An abuse of discretion occurs when a trial court ’ s decision is “ arbitrary,

u nreasonable, unfair, or unsupported by sound legal principles. ” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted)

.

Under Kentucky law, “ [a] court is required to instruct a jury on all offenses that are supported by the evidence .” Clark v. Commonwealth , 223 S.W.3d 90, 93 (Ky. 2007) (citation omitted)

. Our Supreme Court has stated that “ a- 4

-

defendant is entitled to an instruction on a lesser

- included offense if the evidence would permit a jury to rationally find him guilty of the lesser

- offense and acquit him of the greater. ” Smith v. Commonwealth , 737 S.W.2d 683, 68 7 (Ky. 1987) (citation omitted)

.

T urn ing to the statutory elements of escape , u nder Kentucky Revised Statute (“ KRS ”) 520.030 , an individual is guilty of second

- degree escape when that person “escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.” Alternatively , a person is guilty of third

degree escape when that person “ escapes from custody.” KRS 520.040. Under
both statutes, “escape” is defined as “departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted[.]” KRS 520.010(5).

Additionally, the Kentucky Supreme Court has determined that “ f or an incarceree in HIP, leaving the specified home without permission . . . is escape from a detention facility under KRS 520.030(1). Escape from such a home can
therefore constitute second

- degree escape.” Lawton v. Commonwealth , 3 54 S.W.3d 565, 569 (Ky. 2011). In Lawton , the defendant was placed in HIP, obliged to wear an ankle bracelet , and proscribed from leaving his mother’s home without permission. 354 S.W.3d at 567. The defendant subsequently removed the bracelet, left his mother’s house without permission, and was convicted of second

-- 5

-

degree escape. Id

. The Kentucky Supreme Court rejected the defendant’s argument on appeal that he was entitled to a third

- degree escape instruction as a
lesser

- included offense , stating :

Because we hold that for the purposes of the escape statutes a home in which a person is confined under a HIP agreement is a detention facility, and leaving the home without permission is second

- degree escape, there is no way tha t a jury could have found that Appellant committed third

- degree escape but not second

- degree escape. Id. at 576. The Court went on to comment, “[o] f course, a jury may disbelieve the Commonwealth’s evidence that Appellant committed those acts, but in su ch a case, it would simply acquit. The jury could not find Appellant guilty of third

- degree escape but not guilty of second

- degree escape in this case. ” Id

.

This case presents a very similar situation. N o dispute exists that
Akers cut his ankle bracelet and left the house without permission. No circumstances in this case change the home from which he escaped into something other than a “detention facility” under the second

- degree escape statute. KRS 520.030(1) ; Lawton , 354 S.W.3d at 569. Thus, there was no way for a jury to find that he escaped from “custody” but not a “detention facility.” Because the jury could not rationally have found Akers guilty of third

- degree escape but not guilty of second

- degree escape, the trial court did not err in declining to a jury instruct ion on third

- degree escape. We see no abuse of discretion.- 6

- While Akers argues that some jurors may have felt Akers’s alleged intoxication rendered the home incarceration contract invalid or somehow rendered
him inc apable of know ing he was escaping a detention facility , his state of mind was not an element of the offense. KRS 520.030 requires only that the defendant
escapes from a detention facility, with “ escape ” defined as an unpermitted “departure” from the deten tion facility. KRS 520.030, KRS 520.010(5). Akers did not dispute that he intentionally and without permission left the home on the day he removed his ankle monitor.

Moreover , a binding contract with the HIP provider is not a requirement under KRS 520 .030. Rather, the court orders HIP, and an individual’s obligation to remain within the detention facility unless otherwise granted permission is statutory. KRS 532.220(1). Thus, the court’s decision was not

“ arbitrary, unreasonable, unfair, or unsupported by sound legal principles. ” English , 993 S.W.2d at 945

.

b. Other Alleged Error s Akers next argues that the trial court committed an error during his sentencing/PFO stage by making certain statements to the jur y . Akers did not preserve t his al leged error by objection, and Akers is requesting us to engage in a “palpable error” review under Kentucky Rule of Criminal Procedure (“RCr”)
10.26.- 7

- Under RCr 10.26, an unpreserved error may generally be considered on appeal if the error i s “palpable , ” “affects the substantial rights of a party [ , ] ” and results in “manifest injustice.” Kentucky’s Supreme Court has stated that a palpable error “ must be easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth , 206 S.W.3d 343, 349 (Ky. 2006) ( i nternal quotation
marks and citations omitted)

. Moreover , a palpable error affects the substantial rights of the party “only if it is mor e likely than ordinary error to have affected the judgment.” Ernst v. Commonwealth , 160 S.W.3d 744, 762 (Ky. 2005) ( citations omitted)

. In this case, the Commonwealth introduced two certified judgments of Akers’s prior felony convictions. Thereafter, t he trial court stated the following:

That [the judgments introduced as exhibits] includes information that the defendant was convicted of receiving stolen property, over $500, by final judgment on February 21, 2014, and prior to the conviction for escape. And, prior to February 21, 2014, he was convicted of unlawful possession of methamphetamine precursor, theft by deception, and receiving stolen property by final judgment of Floyd Circuit Court, May 10, 2021. Meaning, in essence, there are two fe lony convictions prior to the commission of the charge involved in this case. The trial court then read the first

- degree PFO instruction to the jury, including a statement regarding the presumption of innocence and the requirement that the jury- 8

-

find Akers guilty of this charge only if the Commonwealth proved all the statutory elements beyond a reasonable doubt.

On appeal, Akers argues the trial court’s statement invaded the province of the jury by making a finding of fact relevant to the PFO charge.
Howe ver, we do not see a “substantial possibility” that the trial’s result would have
differed had the trial court not made the comments. T he trial court did not give an opin ion regarding Akers ’s guilt as to being a first

- degree PFO or whether the Commonwealt h had met its burden. Rather, the trial court simply stated that the Commonwealth’s exhibits showed that Akers had two prior felony convictions. Additionally, t he trial court instructed the jury concerning the presumption of innocen ce and that the Common wealth was required to prove each element beyond a reasonable doubt. We discern no palpable error.

Akers next argues palpable error occurred when the trial court allowed the jury to view, in violation of KRS 532.055(2)(a)2

. and Blane v. Commonwealth , 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v. Commonwealth , 493 S.W.3d 814, 828 (Ky. 2015), a certified copy of a judgment stating that Akers had a PFO first

- degree charge dismissed

. During the sentencing portion of a trial, the Commonwealth may introduce evidence of a defendant’s prior convictions , both felonies and misdemeanors . KRS 532.055(2)(a). However,

u nder Kentucky law, “it is

. . . well settled that the Commonwealth cannot- 9

-

introduce evidence of charges that h ave been dismissed or set aside.” Blane , 364 S.W.3d at 152 (citations omitted) ,.

Nevertheless, a s the Court discussed in Chavies v. Commonwealth , such an error does not necessarily require reversal under the “palpable error”
standard of review

. 354 S. W.3d 103, 114

- 16 (Ky. 2011), abrogated on other grounds by Roe v. Commonwealth , 493 S.W.3d 814 (Ky. 2015). In Chavies , the Kentucky Supreme Court determined that the Commonwealth committed an error by introducing a prior dismissed indictment during the trial’s penalty phase. Id . at 114

- 15. Nonetheless, t he Court concluded that the error was not palpable because the Commonwealth only introduc ed an indictment ; “the dismissed and amended offenses were never pointed out to the jury by the trial judge, the Commonwealth, or the Commonwealth’s witness” ; and Chavies did not receive the maximum sentence for his convictions. Id . at 115.

Likewise , in this case , neither the trial court nor the Commonwealth mentioned or discussed Akers’s dismissed charge, and he did not receive the
maximum sentence for his convictions

. Additionally, Akers had a considerable criminal record , having been convicted of seve n Class D felonies and five misdemeanors. Because neither the trial court n or the Commonwealth discussed
t he dismissed PFO charge with the jury and given the middle

- range sentence the jury endorsed despite Akers’s lengthy criminal history , there is not a reasonable- 10

-

likelihood the jury would have recommended a lesser sentence had it not received the exhibit. Thus , we do not find that a palpable error occurred in light of these
facts

. Akers ’s final argu ment is that if this Court does not believe that either of the foregoing alleged errors rises to the level of palpable error, this Court
consider s the cumulative effect of both alleged errors and grant s a new penalty phase. Under the cumulative

- error doctrine, “ multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair.” Brown v. Commonwealth , 313 S.W.3d 577, 631 (Ky. 2010). Cumulative error will be found “only where the indiv idual errors were themselves substantial, bordering, at least, on the prejudicial.” Id

. However, because we have found that t his case did not involve multiple errors “ bordering

. . .

on the prejudicial , ” Akers’s cumulative

- error argument is without merit

. CONCLUSION For the foregoing reasons, we affirm the judgment of the Floyd Circuit Court.

ALL CONCUR.- 11

-

BRIEF S FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Robert Baldridge Assistant Attorney General Frankfort, Kentucky