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NOT TO BE PUBLISHED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 seconddegree escape and being a first-degree persistent felony offender. Finding no error, 

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In a pending circuit court case, the Floyd Circuit Court placed Akers 

in a home incarceration program (“HIP”) as a condition of his pretrial release. 
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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 reviewed 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 permission. 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 threatened him and his family. Akers

asserted that he removed his ankle monitor and left his home after the police’s 

alleged failure to act regarding Martin’s threats. However, on rebuttal, various

witnesses testified that no record existed of Akers contacting the police. 

Akers further testified 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, other inmates allegedly 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 questions. 
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Additionally, Akers testified that he had not read the East Kentucky 

contract before signing. Specifically, Akers 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.” 

The jury ultimately found Akers guilty of second-degree escape and 

being a first-degree persistent felony offender (“PFO”), and the circuit court 

sentenced him to sixteen (16) years imprisonment. This appeal followed.

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, we 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, 

unreasonable, 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 
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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, 687 (Ky. 1987)

(citation omitted).

Turning to the statutory elements of escape, under 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 thirddegree 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 “for 

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, 354 

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-
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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 that 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 such 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. No 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 instruction on third-degree escape. We see no abuse of discretion.
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While Akers argues that some jurors may have felt Akers’s alleged 

intoxication rendered the home incarceration contract invalid or somehow rendered 

him incapable of knowing 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 detention 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 Errors

Akers next argues that the trial court committed an error during his 

sentencing/PFO stage by making certain statements to the jury. Akers did not 

preserve this alleged error by objection, and Akers is requesting us to engage in a 

“palpable error” review under Kentucky Rule of Criminal Procedure (“RCr”) 

10.26. 
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Under RCr 10.26, an unpreserved error may generally be considered

on appeal if the error is “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) (internal quotation

marks and citations omitted). Moreover, a palpable error affects the substantial 

rights of the party “only if it is more 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, the 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 felony 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 
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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.

However, we do not see a “substantial possibility” that the trial’s result would have 

differed had the trial court not made the comments. The trial court did not give an 

opinion regarding Akers’s guilt as to being a first-degree PFO or whether the 

Commonwealth had met its burden. Rather, the trial court simply stated that the 

Commonwealth’s exhibits showed that Akers had two prior felony convictions. 

Additionally, the trial court instructed the jury concerning the presumption of

innocence and that the Commonwealth 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, 

under Kentucky law, “it is . . . well settled that the Commonwealth cannot 
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introduce evidence of charges that have been dismissed or set aside.” Blane, 364 

S.W.3d at 152 (citations omitted),. 

Nevertheless, as 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, the Court concluded that the error was not palpable because 

the Commonwealth only introduced 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 seven Class D felonies and five 

misdemeanors. Because neither the trial court nor the Commonwealth discussed 

the 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 
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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 argument is that if this Court does not believe that either 

of the foregoing alleged errors rises to the level of palpable error, this Court 

considers the cumulative effect of both alleged errors and grants 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 individual errors were 

themselves substantial, bordering, at least, on the prejudicial.” Id. However, 

because we have found that this 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.
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BRIEFS FOR APPELLANT:

Steven J. Buck

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky