RENDERED: AUGUST 28, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001723-MR

DWIGHT GIBSON APPELLANT

APPEAL FROM LETCHER CIRCUIT COURT

v. HONORABLE JAMES W. CRAFT II, JUDGE

ACTION NOS. 17-CR-00210 AND 17-CR-00211

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING

**   **  **

BEFORE: KRAMER, LAMBERT, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Dwight Gibson appeals from the Letcher Circuit 

Court’s judgment following his conviction at trial of two counts of first-degree 

trafficking in a controlled substance (first offense).

1

In accord with the jury’s 

recommendation, the trial court sentenced Gibson to two consecutive five-year 

terms of incarceration with the Department of Corrections. After careful 

 

1

 Kentucky Revised Statutes (KRS) 218A.1412, a Class D felony.
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consideration, we affirm Gibson’s conviction on the underlying offenses but 

reverse the sentence and remand for a new sentencing trial.

In 2017, Detective Wes Sandlin of the Kentucky State Police (KSP)

employed a confidential informant, Wendy Lucas, to make controlled purchases of 

methamphetamine. Lucas, a methamphetamine user, agreed to work with KSP in 

order to gain favorable treatment on her pending drug possession charge. She was 

also paid one hundred dollars for each felony-level drug purchase. Lucas 

suggested Gibson as a target because she had purchased illicit drugs from him on 

previous occasions. 

On two occasions, May 23 and May 31, 2017, Detective Sandlin used 

Lucas to make controlled purchases from Gibson. Lucas was equipped with a 

hidden video camera on both occasions, and the video footage would later be 

admitted at Gibson’s trial. After each transaction, Lucas returned to Detective 

Sandlin with an aluminum packet containing a crystalline substance. The KSP 

forensic laboratory later confirmed the substance was methamphetamine.

Lucas’s videos are shaky, and the audio contains some static. 

Nonetheless, Gibson’s face is shown at various points during the transactions. 

There are two notable incidents from the videos relevant to this appeal. First, 

during the May 23 transaction, Gibson states, “I’ve got so many people calling and 

texting me right now, I don’t know. Thirty-two missed calls.” Second, during the 
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May 31 transaction, Lucas observed Gibson placing pills containing 

pseudoephedrine in a soda bottle. This is part of a process used to manufacture 

methamphetamine colloquially described as “shake and bake.”

Based on these two transactions, the Letcher County grand jury issued 

two separate indictments, each charging Gibson on one count of first-degree 

trafficking in a controlled substance. At Gibson’s trial, the Commonwealth’s case 

included testimony from Detective Sandlin, Lucas, and a forensic scientist from the 

KSP laboratory. The jury also viewed the video recordings of the two transactions. 

Gibson did not offer witnesses for his defense. His trial strategy relied on 

attempting to shake Lucas’s credibility through cross-examination and on depicting 

himself as a victim of entrapment. Ultimately, the jury found Gibson guilty of 

both counts of trafficking in a controlled substance and recommended the 

maximum sentence of five years on each count, to run consecutively. On 

September 27, 2018, the trial court entered its final judgment and sentence in 

accord with the jury’s recommendation. This appeal followed.

Gibson presents three issues on appeal. First, he argues the trial court 

should have prevented the prosecutor from repeatedly referencing the uncharged 

act of manufacturing methamphetamine. Gibson objected when the prosecutor 

asked Lucas to explain a “shake and bake” to the jury. The trial court overruled 

the objection, ruling that Lucas could testify about what the bottle appeared to be. 
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Gibson now contends the trial court should have disallowed this evidence, 

asserting it was unduly prejudicial and irrelevant to the trafficking charges for 

which he was indicted.

“[A]buse of discretion is the proper standard of review of a trial 

court’s evidentiary rulings.” Goodyear Tire and Rubber Co. v. Thompson, 11 

S.W.3d 575, 577 (Ky. 2000) (citations omitted). We give substantial deference to 

a trial court’s evidentiary rulings “because the trial court is in the best position to 

evaluate the evidence.” Bailey v. Commonwealth, 194 S.W.3d 296, 304 (Ky. 

2006) (citations omitted).

The Kentucky Supreme Court considered the question of when 

evidence of uncharged offenses should be allowed in St. Clair v. Commonwealth, 

455 S.W.3d 869 (Ky. 2015). In that case, the Court ruled 

[s]uch proof is ordinarily barred by KRE[2] 404(b) as 

evidence of other acts used to show character or 

propensity. But such proof may be admissible if offered 

for some other relevant purpose, KRE 404(b)(1), or “[i]f 

so inextricably intertwined with other evidence essential 

to the case that separation of the two . . . could not be 

accomplished without serious adverse effect on the 

offering party,” KRE 404(b)(2).

Id. at 885. The Kentucky Supreme Court then explained that evidence is 

inextricably intertwined and, thus, admissible under KRE 404(b)(2) 

 

2

 Kentucky Rules of Evidence.
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when . . . [it] furnishes part of the context of the crime or 

is necessary to a full presentation of the case, or is so 

intimately connected with and explanatory of the crime 

charged against the defendant and is so much a part of 

the setting of the case and its environment that its proof is 

appropriate in order to complete the story of the crime on 

trial by proving its immediate context or the res gestae.

Id. (quoting Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012)).

Here, we cannot say the trial court abused its discretion in permitting 

evidence regarding the “shake and bake” laboratory because it was intertwined 

with the video and audio evidence of the second transaction for which Gibson was 

indicted. Furthermore, we cannot say it was an abuse of discretion for the trial 

court to admit Lucas’s testimony about the laboratory because she was explaining 

the events depicted in the video and audio evidence for the jury. “[T]he jury 

cannot be expected to make its decision in a void without knowledge of the time, 

place and circumstances of the acts which form the basis of the charge, and thus 

the prosecution is allowed to prove the setting of a case[.]” Id. (citations and 

internal quotation marks omitted).

Gibson’s second and third issues on appeal both concern the penalty 

phase of his trial and we will consider them together. For his second issue, Gibson 

asserts error in how the prosecutor asked the deputy clerk to describe the penalty 

Gibson received in a criminal trespassing case. The deputy clerk responded that 

Gibson “was given a fine and to remain off Donna Mullins’s property.” Gibson 
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did not object at the time but now contends this was improper and prejudicial. He 

asks for palpable error review of the unpreserved error under RCr3 10.26:

Under Criminal Rule 10.26, an unpreserved error may 

only be corrected on appeal if the error is both palpable 

and affects the substantial rights of a party to such a 

degree that it can be determined manifest injustice 

resulted from the error. For error to be palpable, it must 

be easily perceptible, plain, obvious and readily 

noticeable. The rule’s requirement of manifest injustice 

requires showing . . . [a] probability of a different result 

or error so fundamental as to threaten a defendant’s 

entitlement to due process of law.

Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014) (citations and internal 

quotation marks omitted). 

The Kentucky Supreme Court has routinely and repeatedly instructed 

the Commonwealth to avoid giving the names of previous victims in the penalty 

phase. This is commonly referred to as a Mullikan error, and the Supreme Court 

thoroughly explained it as follows:

KRS 532.055 states: “Evidence may be offered by the 

Commonwealth relevant to sentencing including: (1) 

Minimum parole eligibility, prior convictions of the 

defendant, both felony and misdemeanor; and (2) The 

nature of prior offenses for which he was convicted.”

However, “[t]he trial court should avoid identifiers, such 

as naming of victims, which might trigger memories of 

jurors who may—especially in rural areas—have prior 

knowledge about the crimes.” Mullikan v. Com., 341 

S.W.3d 99, 109 (Ky. 2011).

 

3

 Kentucky Rules of Criminal Procedure.
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Stansbury v. Commonwealth, 454 S.W.3d 293, 304 (Ky. 2015). The Kentucky 

Supreme Court also explained how a Mullikan error may very well result in 

palpable error:

We held in Webb v. Commonwealth, 387 S.W.3d 319, 

330 (Ky. 2012) that introducing improper evidence 

during the penalty phase such as “highly prejudicial 

information concerning the victims of the prior crimes” is 

a “prejudice . . . so egregious as to have resulted in 

manifest injustice, in that failure to correct the error 

would seriously affect the fairness, integrity, and public 

reputation of the judicial proceeding.” Id. quoting 

Mullikan, 341 S.W.3d at 109.

Id.

Moving to Gibson’s third issue, he asserts error in the prosecutor’s 

closing argument during the penalty phase, wherein the prosecutor repeatedly 

urged the jury toward a severe penalty on the basis of the “thirty-two missed calls” 

mentioned in the video evidence. In his closing during the penalty phase, the 

prosecutor began by describing “drug trafficking in this area [as] an epidemic.” 

This drew an objection from the defense, which was overruled. The prosecutor 

then told the jury that the “thirty-two missed calls” meant there were thirty-two 

other victims, stating, “Thirty-two members of this community. Thirty-two. 

Thirty-two lives which have been affected by [Gibson]. Thirty-two families.” 

Gibson objected, arguing the sentence should be based on the two offenses for 
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which he was actually convicted. The trial court overruled the objection, and the 

prosecutor returned to his theme of the thirty-two unknown victims in this case.

Although it is true that “[a] prosecutor may comment on tactics, may 

comment on evidence, and may comment as to the falsity of the defense 

position[,]” Stopher v. Commonwealth, 57 S.W.3d 787, 806 (Ky. 2001) (citation 

omitted), such latitude is not without limits. A prosecutor’s “exhortation to [the] 

jury to ‘send a message’ to the community [is] improper.” Brewer v. 

Commonwealth, 206 S.W.3d 343, 351 (Ky. 2006). As we have described it

previously, “the Commonwealth is not at liberty to place upon the jury the burden 

of doing what is necessary to protect the community.” McMahan v. 

Commonwealth, 242 S.W.3d 348, 351 (Ky.App. 2007) (citations omitted). When 

the Commonwealth strays into such territory, a timely objection by the defense will 

result in reversible error. See Brewer, 206 S.W.3d at 351; McMahan, 242 S.W.3d 

at 351.

Applying these principles, we consider the prosecutor’s invocation of 

thirty-two unnamed, unknown victims to have been an improper call to the jury to 

protect the community. The prosecutor used the video’s reference to thirty-two 

missed calls and extended it to mean that Gibson should be punished for the 

suffering of “thirty-two families.” The prosecutor extended this argument still 

further and urged Gibson’s punishment should reflect the severity of the drug 
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abuse problem in Appalachia generally. “A prosecutor ‘may strike hard blows’ but 

‘is not at liberty to strike foul ones.’” United States v. Acosta, 924 F.3d 288, 293 

(6th Cir. 2019) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 

L. Ed. 1314 (1935)).

Considered together, Gibson’s second and third arguments have merit

and require a new sentencing trial. First, it is clear that a Mullikan error may be 

palpable. “We have good, clear, published case law wherein we have repeatedly 

advised the Commonwealth to stop introducing the very type of evidence in 

question here. Furthermore, we have held that disregarding this advice amounts to 

palpable error.” Stansbury, 454 S.W.3d at 304-05. The prosecutor then 

compounded this error by urging the jury to punish Gibson for the generalized 

scourge of drugs in the community, and the trial court allowed the prosecutor to do 

so despite a contemporaneous objection. 

Palpable error may be found when it results in manifest injustice, and 

“[m]anifest injustice is found if the error seriously affected the fairness . . . of the 

proceeding.” Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013)

(citation omitted). There was certainly ample evidence to convict Gibson. 

However, at the time of trial, Gibson was twenty-three years old with two 

misdemeanors on his criminal record. For his two first-offense trafficking 

convictions, Gibson was given two consecutive maximum sentences resulting in 
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ten years’ incarceration. He could not have received a more severe sentence if he 

had entered an open guilty plea at his arraignment. The previous high court told us 

we may infer prejudice to an appellant based on his or her sentence. Taulbee v. 

Commonwealth, 438 S.W.2d 777, 779 (Ky. 1969). Based on these factors, we hold 

Gibson suffered palpable error resulting in manifest injustice during his penalty 

phase and must be resentenced.

 For the foregoing reasons, we affirm the Letcher Circuit Court’s 

judgment of conviction but reverse Gibson’s sentence. On remand, the trial court 

shall conduct a new sentencing trial for Gibson not inconsistent with this opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Steven J. Buck

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky