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RENDERED: AUGUST 26, 2021 

NOT TO BE PUBLISHED 

Supreme Court of Kentucky

2019-SC-0579-MR

MICHAEL CRAIG MOODY APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT

HON. KELLY MARK EASTON, JUDGE

INDICTMENT NO. 18-CR-1277

V.

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This case comes before the Court on appeal as a matter of right1 by 

Michael Craig Moody (Appellant), from the judgment and sentence of the 

Hardin Circuit Court. After a jury trial, Moody was found guilty of first-degree 

robbery and possession of a handgun by a convicted felon. Additionally, the 

jury determined that Moody was a persistent felony offender, second degree. 

The Circuit Court imposed a concurrent sentence of ten (10) and thirty (30) 

years for a total of thirty (30) years, and Moody timely appealed.

Moody puts forth only two arguments. First, he argues that the trial 

court improperly allowed prior bad acts to come before the jury as character 

1 Ky. Const. § 110(2)(b) 
2

evidence, violating KRE2 404(b). Second, he argues that the Commonwealth 

improperly defined “reasonable doubt” during the voir dire of the jury in 

violation of RCr3 9.56(2). 

For the following reasons, we affirm.

I. Factual and Procedural Background

On October 25, 2018, Moody and his girlfriend, Joey Lynn Smith, visited 

the Belk department store in Elizabethtown. Smith entered the store initially by 

herself whereupon Alison Backstrom, an employee of Belk, contacted Belk’s 

Regional Loss Prevention Officer, Theron Rowe. Backstrom’s call was 

predicated upon her recognizing Smith from the week prior. 

On the prior occasion, Backstrom witnessed Smith placing items in her 

purse while shopping. No loss prevention officer was on duty, so Backstrom 

proceeded to closely follow Smith around the store under the guise of providing

customer service. Eventually, Smith removed the items from her purse and 

dropped them on the floor. She made her way to Moody and the two exited the 

store together. It was this incident that led to Backstrom recognizing both 

Smith and Moody on October 25, 2018.

During the second visit to the store, it was Rowe who kept a close watch 

on Smith although he did not feign an offer of customer service. Instead, Rowe 

was content to observe Smith until she attempted to leave with unpaid-for 

items. He watched her enter a fitting room with several pieces of clothing and a 

2 Kentucky Rules of Evidence

3 Kentucky Rules of Criminal Procedure
3

luggage carrier. Upon leaving the fitting room, Smith made for the exit. As she 

approached the cashier check-out, Rowe identified himself as security and 

demanded she stop. She did not. Rowe then grabbed Smith and the two began

to struggle. 

Simultaneously with the events just described, Moody had been waiting 

in his van. After some time—Moody says approximately thirty-five minutes—he 

entered the store to look for Smith. Rowe saw Moody enter and believed him to 

be looking for someone, although it did not occur to him that Moody was 

looking for Smith. Unable to find Smith, Moody again went back to his van. 

Almost immediately after he left the store is when Smith made her attempt to 

leave Belk, initiating the struggle between her and Rowe. 

Moody testified that he heard Smith scream. At this time he was 

approximately sixty (60) feet from the store entrance. He went to the van, drove 

it closer to the Belk entrance, and there a woman told him the police had been 

called. Unswayed, he grabbed Smith’s handgun from the van and proceeded 

inside the store to her defense. Moody stated that he was unaware of Rowe’s 

position as a Loss Prevention Officer; he did not see or hear him identify 

himself as such, and therefore only saw a man in civilian-clothing accosting 

Smith. He pointed the gun at Rowe’s head and demanded he release her. Rowe

promptly did so. Moody and Smith then left the store, fled the scene, but were 

soon thereafter pulled over and arrested in Elizabethtown. 

At trial, during voir dire, the Commonwealth made a statement to the

jury, which we quote in full:
4

We talk about, the standard is beyond a reasonable doubt, alright? 

I cannot define that for you, nobody can. The courts have said no. 

Everybody here understands I did not say beyond any doubt, 

correct?

Okay, I’m going to give you an example, alright? I’m not much of a 

golfer. I used to play a lot before I started doing this job then I 

don’t play so much. I know Ms. Pearl’s husband is quite the golfer. 

Who here knows Tiger Woods? Pretty good golfer, to say the least. 

Me and Tiger show up out at, let’s say – I don’t know what it’s 

called anymore – Three Putts. That’s what I always knew it as at 

the golf course, and we’re going to play nine holes. 

Is it possible that I would win? Possible. Maybe his arm falls off. 

You never know, everything and anything is possible. Is it 

reasonable to believe that I would win? No. No, not at all. You 

understand the difference? What’s reasonable and what’s possible? 

I have to prove this case beyond a reasonable doubt, alright?

There was no objection at the time of this utterance, and voir dire continued as 

normal. 

Later during the Commonwealth’s case-in-chief, Backstrom was called to 

the stand. She testified to substantially the same events as recounted above, to 

wit: that she had seen Moody and Smith a week prior in Belk; that she had 

believed Smith to be attempting to steal items in her purse and began to follow 

her around under the guise of providing customer service; that Smith removed 

the items from her purse and dropped them on the floor; that Smith and Moody 

then left the store together; and that on October 25, 2018, she saw Smith enter 

the store again, recognized her from the prior incident, and called Theron 

Rowe.

This testimony is of some controversy. It was the focus of a pretrial 

motion in limine by Moody, and the merits were argued and considered by the 

court the morning of trial prior to seating the jury. Moody’s objection to this 
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testimony was renewed during trial. The motion denied; the objection 

overruled; the testimony was heard. Immediately after, the trial court 

admonished the jury, which we quote in full:

You have now heard some evidence which I am required to give 

specific directions on how it can and cannot be used. Your task as 

the jury in this case is to decide what happened at the Belk store 

on October 25, 2018. The law does not allow what is called 

character evidence. If someone did something on a prior date, that 

cannot be used as character evidence to predict what they would 

do on a later date. But sometimes evidence of a prior act can be 

proper evidence to consider for limited reasons. In this case, you 

have now heard evidence about an alleged prior visit to the Belk 

store by the Defendants one week prior to October 25th. You shall 

not consider that evidence for any purpose other than to show, if it 

does, a motive, intent, preparation, a plan or knowledge of the 

Defendants relating to their actions on October 25th. 

After a three-day trial the jury found Moody guilty. He now brings this 

appeal arguing chiefly that Backstrom’s testimony of the prior incident at Belk 

unduly prejudiced the jury as it was impermissible character evidence of a 

prior bad act. This issue was preserved by the pre-trial motion in limine and 

contemporaneous objection at trial. He also argues that the Commonwealth 

impermissibly defined reasonable doubt during voir dire, thereby committing a 

palpable error. He seeks our review on this latter issue, but concedes it is not 

preserved. 

In turn, the Commonwealth argues that the testimony of the prior 

incident at Belk was not impermissible character evidence used to prove 

character or criminal disposition, but rather was permissibly used to show 

knowledge and intent; but in any event did not unduly inflame the passions of 

the jury. Regarding the voir dire statement, the Commonwealth argues it was 
6

not a palpable error, and that the Commonwealth is permitted to define what 

reasonable doubt is by way of negation. 

II. Standard of Review

We employ two different standards for the separate issues involved in 

this appeal. First, regarding the argument of prior bad acts under KRE 404, we 

review evidentiary rulings under an abuse of discretion standard. Kerr v. 

Commonwealth ̧ 400 S.W.3d 250, 261 (Ky. 2013). Thus, we defer to evidentiary 

rulings except when “the trial judge's decision was arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.” Commonwealth v. English, 

993 S.W.2d 941, 945 (Ky. 1999). 

Second, regarding the argument of defining reasonable doubt, we 

undertake palpable error review. “A palpable error which affects the substantial 

rights of a party may be considered by ... an appellate court on appeal, even 

though insufficiently raised or preserved for review, and appropriate relief may 

be granted upon a determination that manifest injustice has resulted from the 

error.” RCr 10.26. “To find manifest injustice, the reviewing court must 

conclude that the error so seriously affected the fairness, integrity, or public 

reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’”

Conrad v. Commonwealth, 534 S.W.3d 779, 783 (Ky. 2017) 

(quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). 

III. Analysis

A. The Evidence of the Prior Bad Act was Permissible to Demonstrate

Moody’s Knowledge
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Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show action in conformity 

therewith. It may, however, be admissible: (1) If offered for some 

other purpose, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or 

accident. 

KRE 404(b)(1). Thus, the criminal conduct or prior bad act must be “probative 

of an issue independent of character or criminal predisposition, and only if its 

probative value on that issue outweighs the unfair prejudice with respect to 

character,” will it be admissible. Billings v. Commonwealth, 843 S.W.2d 890, 

892 (Ky. 1992). But the exclusionary nature of this rule demands that it be 

strictly construed, with trial courts applying the “rule cautiously, with an eye 

towards eliminating evidence which is relevant only as proof of an accused's 

propensity to commit a certain type of crime.” Bell v. Commonwealth, 875 

S.W.2d 882, 889 (Ky. 1994). And though our review is one for abuse of 

discretion, we have nonetheless developed a three-part inquiry to determine 

whether an abuse has in fact occurred, looking to the proffered evidence’s 

relevance, probativeness, and prejudice. Id.

The first inquiry simply asks if the prior bad act was relevant to any 

other factor other than character or criminal disposition. “In reviewing 

relevance, courts must determine that the ‘other bad acts’ evidence is offered to 

prove material facts that are actually in dispute.” Leach v. Commonwealth, 571 

S.W.3d 550, 554 (Ky. 2019). KRE 404(b) gives a non-comprehensive list of 

material factors that might be assessed, and in this case the relevance inquiry 

looks to whether the prior bad act goes to demonstrate knowledge and intent. 
8

At trial, a crucial fact for Moody was whether he knew Smith was 

entering the Belk store to shoplift or if he thought she was innocently 

shopping. An element of robbery in the first-degree is that one be armed with, 

or use, or threaten the use of, a deadly weapon or instrument with “intent to 

accomplish the theft . . .” KRS 515.020(1). Since, perforce, one must have 

knowledge of a crime if they intend to accomplish it, not only was knowledge 

and intent an element the Commonwealth had to prove, but lack thereof

became a cornerstone of Moody’s defense. 

Moody said he had not been with Smith on the prior bad act that 

Backstrom testified about. He also said he did not know she had been 

shoplifting on October 25th until they were in the van and fleeing the scene. 

Instead, his testimony was that he saw Smith struggling with Rowe, and as far 

as he was concerned it was an unidentified man assaulting his girlfriend and 

he was acting in her defense when he pulled the gun on Rowe and demanded 

Smith be released. The jury did not accept this account of events. 

Clearly, no dispute exists about Moody’s actions in themselves. He did 

draw a handgun on Rowe, aimed it at him, and demanded Smith’s release. The 

prior bad act did not make any of these facts more or less material, nor did 

they tend to demonstrate Moody’s character or criminal disposition. Rather, it 

served to illuminate whether he was acting in legitimate defense of his believedto-be-innocent girlfriend or was knowingly attempting to help effectuate her 

escape from a crime scene. This was a material fact as it was relevant to prove 

Moody’s knowledge. Therefore, the relevance inquiry is satisfied.
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The second inquiry is probativeness. “[T]he trial court must determine if 

the evidence of the uncharged crime is sufficiently probative of its commission 

by the accused to warrant its introduction into evidence. It is sufficiently 

probative if the trial judge believes ‘the jury could reasonably infer that the 

prior bad acts occurred and that the defendant committed such acts.’” Leach v. 

Commonwealth, 571 S.W.3d at 554 (quoting Parker v. Commonwealth, 952 

S.W.2d 209, 214 (Ky. 1997)).

From the dual testimony of Backstrom—that she remembered Moody 

and Smith attempting to shoplift a week prior and the details of said incident—

and the testimony of Theron Rowe—that he was called on the day of October 

25th by Backstrom because she recognized Smith—the jury could make a 

reasonable inference that the prior shoplifting attempt did occur and was 

perpetrated by Moody and Smith. There is no basis for this Court to find an 

abuse of discretion as concerns the probativeness inquiry. 

Moody, in the Circuit Court below, made much of the fact that 

Backstrom had omitted the prior shoplifting incident in her written statement, 

and upon that ground insisted that the trial court should disallow her 

testimony. But such an argument fails to reckon with the history of the 

reasonable inference standard for probativeness. As Professor Lawson 

recounts, “in most instances other crimes evidence is mere testimony by one or 

more witnesses that the defendant committed the uncharged crime, making it 

somewhat harder to believe that the accused committed the uncharged crime 

and creating at least some concern about use of the other crime to prove the 
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charged offense.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 

2.30[2][c], at 137 (5th ed.). In light of this concern, “courts seem to have 

universally recognized the need for some kind of safeguard against the use of 

unsubstantial evidence of a defendant’s involvement in ‘other crimes.’” Id. at 

138. This led to chaos in the law as various jurisdictions used differing tests, 

i.e., preponderance of evidence, substantial evidence, clear and convincing 

evidence, etc., to determine whether such other crimes evidence could be 

admitted. Id.

But then the Supreme Court of the United States announced the 

reasonable inference standard for federal courts. Huddleston v. United States, 

485 U.S. 681 (1988). This Court embraced that same standard in Parker v. 

Commonwealth, 952 S.W.2d at 214. Thus, under the reasonable inference 

standard, “the trial court neither weighs credibility nor makes a finding that 

the [Commonwealth] has proved the conditional fact . . .” Huddleston, 485 U.S.

at 690. If there was a question of Backstrom’s credibility, it was a question 

solely for the jury. The trial court acted properly in declining to usurp this 

prerogative. 

Finally, the last inquiry is prejudice. A prior bad act is always prejudicial 

when it is introduced for an improper purpose or to inflame the passions of the 

jury. Leach, 571 S.W.3d at 554. On the other hand, all evidence of this nature 

is assumed to be prejudicial; thus, a balancing test is normative and the court 

asks “is the tendency of the evidence so strongly to lead the jury into improper 

character inferences that that tendency ‘substantially outweighs the evidence's 
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probative value’ with regard to its proper uses?” Jenkins v. Commonwealth, 496 

S.W.3d 435, 457 (Ky. 2016) (quoting Bell v. Commonwealth, 875 S.W.2d at 

890).

In this case, the purpose for introducing the prior shoplifting attempt 

was not improper but was used to demonstrate knowledge and intent. Neither 

did it serve to inflame the jury’s passions. Although there is some similarity in 

the two incidents in this case, a reasonable person will understand the 

difference in kind between run-of-the-mill shoplifting and armed robbery. The 

prior incident did not seek to paint Moody as especially violent or dangerous. 

Indeed, it could not have had that effect. We do not believe the modicum of 

prejudice stemming from introducing the prior act of inchoate, ordinary 

shoplifting inflamed the jury, nor did it substantially outweigh the 

probativeness said act had into the knowledge and intent of Moody for the 

charged crime of robbery in the first degree.

Having undertaken the necessary inquiries, we are satisfied that the trial 

court properly admitted the evidence of the prior bad act. There was no abuse 

of discretion as the evidence was relevant, probative, and that probativeness 

was not substantially outweighed by the prejudice all such evidence carries. 

Nonetheless, we emphasize that the trial court admonished the jury as to 

the proper consideration it had to give to the evidence, especially noting that 

“[i]f someone did something on a prior date, that cannot be used as character 

evidence to predict what they would do on a later date.” Instead, the trial court 

accurately informed the jury that it “shall not consider that evidence for any 
12

purpose other than to show, if it does, a motive, intent, preparation, a plan or 

knowledge of the Defendants relating to their actions on October 25th.” 

We have previously stated that “a trial judge must consider whether a 

clear instruction limiting the jury's use [of prior bad act evidence] to 

its proper purpose is likely to be effective.” Bell, 875 S.W.2d at 890. This is 

because “protection against . . . unfair prejudice emanates not from a 

requirement of a preliminary finding by the trial court . . .” but from several 

other factors, inter alia, a limiting instruction to the jury. Huddleston, 485 U.S. 

at 691-92. It is evident that the trial judge believed a limiting instruction was 

necessary and effective. We are satisfied that the clear and correct statement of 

the trial court, following immediately upon the heels of the testimony in 

question, sufficiently ameliorated any undue prejudice the testimony might 

have led to. There was no error under KRE 404(b) in admitting the testimony of 

Backstrom. 

B. The Defining of Reasonable Doubt Did Not Lead to Manifest Injustice

“Instructions [from the court] should not attempt to define the term 

‘reasonable doubt.’” RCr 9.56(2). Extending that rule, we have held that “trial 

courts shall prohibit counsel from any definition of ‘reasonable doubt’ at any 

point in the trial . . .” Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky. 

1984). But in so doing, we have “rejected the notion that any 

such error in defining reasonable doubt was per se prejudicial and not subject 

to harmless error analysis.” Cuzick v. Commonwealth, 276 S.W.3d 260, 267 

(Ky. 2009). See also Johnson v. Commonwealth, 184 S.W.3d 544, 551 (Ky. 
13

2005) (noting that “[w]e have applied harmless error on this precise issue, even 

in capital murder cases, each time affirming a conviction and sentence of 

death.”). Finally, we have rejected the proposition that defining reasonable 

doubt constitutes an error of constitutional magnitude or rises to palpable 

error. Commonwealth v. Goforth, 692 S.W.3d 803, 805 (Ky. 1985).

Nevertheless, we have held that where “the attorney for the 

Commonwealth engaged at length in a discussion of reasonable doubt,” and 

“us[ed] himself as a hypothetical witness to an accident and suggested to the 

prospective juror that his hypothetical testimony would satisfy the ‘reasonable 

doubt’ standard, but might not eliminate any possibility of doubt,” and

“explained that there was a significant distinction between being convinced 

beyond a reasonable doubt and being convinced beyond all or a shadow of a 

doubt,” then there was reversible error. Marsch v. Commonwealth, 743 S.W.2d 

830, 832 (Ky. 1987). 

Moody understandably analogizes his case to that of Marsch. And indeed,

there are similarities. There is the giving of a hypothetical and a somewhat 

lengthy exposition, although the colloquy in the case sub judice was only 

approximately 1 minute and 30 seconds long. But that is where the similarities 

cease. The Commonwealth has sought to distinguish the case based on the 

hypotheticals offered here and in Marsch but that is unnecessary. An inept 

attempt to demonstrate the difference between “beyond reasonable doubt” and 

“beyond any doubt,” using an absurd hypothetical involving Tiger Woods at 

putt-putt golf, does not strike this Court as an error that is “shocking or 
14

jurisprudentially intolerable.” Conrad, 534 S.W.3d at 783. We are persuaded, 

and continue to hold, that this error is not one that is a manifest injustice.

Goforth, 692 S.W.3d at 805.

What is crucial here is not the colloquy itself or in what manner it was 

conducted; it is the standard of review. We have twice before ruled that even in 

Capital cases, an unpreserved error on improperly defining reasonable doubt is 

not a sufficient ground to find that absent the error the defendant might not 

have been found guilty or had the death penalty imposed. Caudill v. 

Commonwealth, 120 S.W.3d 635, 675-76 (Ky. 2003); Sanders v. 

Commonwealth, 801 S.W.2d 665, 671 (Ky. 1990). Even Justice Leibson found 

the distinction between differing standards of review compelling. Johnson, 184 

S.W.3d at 555 (Leibson, J., dissenting). In this case, the Commonwealth’s 

attorney may well have made a poor attempt at apophasis, but it was not 

palpable error. Finding no palpable error, we decline to address whether an 

attempt to define reasonable doubt by stating what it is not, i.e., by negation, is 

allowable under RCr 9.56 and current caselaw.

IV. CONCLUSION

For the foregoing reasons, we conclude that the trial court did not abuse 

its discretion in admitting the prior bad act testimony under KRE 404(b) nor 

was there palpable error in the Commonwealth’s attempt at defining reasonable 

doubt. Moody’s conviction is affirmed.

All sitting. All concur. 
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COUNSEL FOR APPELLANT:

Erin Hoffman Young

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General