RENDERED: DECEMBER 14, 2023 

TO BE PUBLISHED 

Supreme Court of Kentucky

2022-SC-0185-MR 

RUBEN JOHNSON, IV APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE MARY SHAW, JUDGE 

NO. 21-CR-000724 

 

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY 

AFFIRMING IN PART AND REVERSING IN PART 

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

Ruben Johnson, the Appellant, from the judgment and sentence of the 

Jefferson Circuit Court. Johnson was convicted of first-degree robbery; 

complicity to first-degree robbery; first-degree assault; fourth-degree assault; 

two counts of first-degree strangulation; third-degree terroristic threatening; 

and two counts of intimidating a participant in the legal process. He now 

appeals arguing the trial court abused its discretion by admitting evidence of 

three prior misdemeanor convictions as rebuttal character evidence and in 

admitting the testimonial hearsay statements of a witness; alleging error when 

the trial court failed to direct verdicts for both counts of first-degree robbery 

and one count of intimidating a participant in the legal process; and alleging 

1 Ky. Const. § 110(2)(b).
2

error when the trial court failed to poll the jury. We affirm the trial court on all 

counts except that Johnson was entitled to a directed verdict on the count that 

resulted in his conviction for complicity to first-degree robbery. 

I. Facts

There are two incidents involved in this case, one stemming from 

December 26, 2019, and the other from January 25, 2020. Johnson was in a 

relationship with Cheryl Martin, who had two children. On December 26, 

Martin drove Johnson along with her sister, Latasha Martin, and Johnson’s 

friend, Theras Pettis, to her apartment. Cheryl had to work and left her two 

children with the other three. On her break, she called her sister to check on 

the kids. She heard Johnson and Latasha screaming and arguing. Latasha, 

Pettis, and Johnson had all been drinking. Cheryl left work to go home. 

When she arrived, although the confrontation between Latasha and 

Johnson had settled down, Cheryl ordered Johnson and Pettis to leave, and 

threatened to call the police. Cheryl took her kids to the store for approximately 

one hour to give Johnson time to go. But when she returned Johnson was still 

there and had invited other friends to come over. At some point, Cheryl 

confronted Johnson with her phone in her hand and Johnson took her phone, 

then grabbed Cheryl by the throat and lifted her off the ground. Cheryl could 

not breathe, and her vision started to blur. Johnson then dragged Cheryl 

outside the apartment and threw her down the hallway stairs. Cheryl was so 

dazed by the impact she could not get up. Johnson followed her to continue the 

attack, but Latasha intervened and pulled on Johnson’s jacket in an attempt to 
3

hold him off. Johnson’s friends, though none were specifically identified, 

grabbed at Latasha to stop her. One of these unidentified friends also took her 

phone. Johnson proceeded to throw Cheryl down another flight of stairs. 

Cheryl’s phone was stomped on and broken, though it was recovered in 

the grass outside the apartment building after a phone call was made to it. 

Latasha’s phone was never recovered. The two sisters had a neighbor call the 

police for them. Johnson’s brother came to pick him and his friend up before 

the police arrived. Johnson threatened to kill Cheryl as he was leaving. 

When police arrived they offered to take Cheryl to the hospital, but she 

did not want to leave her children. She informed the police about the incident 

and got an interpersonal protective order (IPO) taken out against Johnson. 

Although she tried several times to have the IPO served, it never was. Cheryl 

told Johnson about the IPO, but he disregarded it. He continued to visit Cheryl, 

and Cheryl testified that she thought it best not to resist Johnson to protect 

herself and her children. 

From this December incident, an indictment would later issue: two 

counts of robbery in the first degree; strangulation in the first degree; two 

counts of intimidating a participant in the legal process; two counts of assault 

in the fourth degree; and two counts of terroristic threatening in the third 

degree. 

On January 25, 2020, another attack occurred. It must be noted that 

Cheryl admits she has little memory of the night in question. It began with her 

driving Johnson to his apartment. While there, some neighbors came to visit. 
4

Cheryl made everyone a drink, and subsequently she and Johnson used 

cocaine. Johnson’s testimony was that after leaving his apartment, Cheryl and 

he took a neighbor to the grocery store. Afterward, he and Cheryl had dinner 

and he purchased what he believed was marijuana but was later discovered by 

Johnson to be a synthetic copy known as spice. The two then went to Cheryl’s 

apartment. At her apartment, the kids were told to go to their room while 

Cheryl and Johnson smoked the spice. Johnson’s account of the subsequent 

events is that he eventually went to bed, but Cheryl woke him up because she 

wanted more cocaine. Johnson admitted to slapping her and then restraining 

her from leaving the apartment by grabbing her around the neck, as she was 

going to get more cocaine. Johnson also admits Cheryl told him she couldn’t 

breathe at which point he released her. Johnson then went to use the 

bathroom. When he came out, he saw the apartment door closing. He went 

outside the apartment at which point he discovered Cheryl at the bottom of the 

flight of stairs. He proceeded to help her back into the apartment, passing a 

neighbor, Sheena Pittman. 

After getting Cheryl into the apartment, Johnson testified, he got a towel 

to clean up her injuries. Eventually, Johnson noticed a police officer shining a 

light through the apartment window. Pittman had called the police to report a 

domestic dispute. The response time of the police was only a couple minutes. 

Body camera footage from one of the officers shows they were let in the 

apartment building by Pittman. Police knocked multiple times and announced

who they were. The police noted blood on the stairwell and on the outside of 
5

Cheryl’s apartment door. One officer heard moaning from inside her apartment.

While this was occurring, Officer Huber interviewed Pittman. That interview 

was captured on his body camera and was played at trial. Pittman told Officer 

Huber that when she passed Cheryl and Johnson on the steps, Cheryl reached 

out to her. Johnson told Pittman Cheryl fell down the steps, but Pittman told 

Officer Huber that Cheryl did not fall, and that she did not think Cheryl was 

intoxicated at the time. 

The police continued knocking and debated whether to kick down the 

door. By the time eight minutes had elapsed since their arrival, Officer Martin-

—promoted to detective by the time of trial—opened a hallway window and 

went out onto the balcony to get a view inside the apartment. He relayed what 

he saw to his fellow officers. He saw a woman lying on the ground and Johnson 

was on top of her. He noted knots on her face, a black eye, and blood. She 

appeared to be breathing from her mouth and Officer Martin did not think she 

was in a condition to speak. He also saw blood on Johnson’s pants and noted 

that Johnson was attempting to move Cheryl out of his view. 

Johnson refused to open the door for the police. At first, he told officers 

he did not want to open the door because he had been using drugs. He was 

told that did not matter as they were concerned about Cheryl and that 

emergency services were waiting to check her out. Johnson still refused and 

said nobody had called the police. Officer Martin corrected him, but Johnson 

still refused to open the door.
6

At this point, fifteen minutes had elapsed since the arrival of the police. A 

police sergeant arrived at the scene and was communicating with Johnson 

through the window. He had noted Cheryl was lying face down and appeared 

unresponsive. Based on his observations, he ordered Officer Huber to kick 

down the door. Notably, Johnson began complaining that the police would have 

to pay for the door. Johnson was detained, apparently arrested, and taken to a 

police vehicle by Officer Huber. Officer Huber testified to telling Johnson to 

stop talking, as Johnson would not stop complaining, stating the police had to 

pay for the door; that nobody had called them; and that Cheryl had only fallen 

down the stairs. Johnson was then taken to the police station. 

Cheryl’s injuries at the apartment were noted as her left eye completely 

swollen shut; knots on her forehead; bleeding from her nose and mouth; marks 

on her neck; and she had urinated on herself. Cheryl’s own testimony was that 

she had no memory of the actual attack save for one: that Johnson was holding 

her down across his legs, hitting her multiple times on her left side and throat. 

At the hospital, Cheryl was treated by Dr. Daniel O’Brien, who has worked in 

emergency medical care since 1985. Dr. O’Brien testified that Cheryl would 

likely have died without emergency medical aid. He noted her injuries to her 

face were a “very violent trauma” resulting in swelling and contusions around 

her left eye, left cheek, mouth, jaw, and ear. CT scans of her back and neck 

showed significant blood accumulation and a crack in the back of her skull, 

which Dr. O’Brien noted is a particularly hard bone to break. Dr. O’Brien also 

testified to ligature marks on Cheryl’s neck which, when he was informed she 
7

had urinated on herself at the scene, led him to conclude she had been 

strangled. 

Despite being treated in the hospital, Cheryl’s injuries continued to get 

worse for a time. Her throat and larynx swelled to the point that her airway was 

closed, and she had to be intubated. In all, she was in the hospital for six days. 

Nurse Yazel, who worked for the hospital as the Sexual Assault Forensic 

Examiner, performed her examination a day after Cheryl had been admitted. 

Her testimony largely corroborated Dr. O’Brien’s. Yazel testified that Cheryl did 

have some injuries consistent with a fall, including her injuries on her right 

hand, elbow, foot, and knee. She testified, however, that her injuries to her 

eyes, lips, and neck were not consistent with a fall. She also stated that the 

sheer number of injuries to Cheryl could only have come from multiple 

impacts. Dr. O’Brien testified that he would be “very surprised” to see these 

kinds of injuries as a result of simply passing out and falling down the stairs.

This incident led to the following charges: criminal attempt murder; 

assault in the first degree; strangulation in the first degree; and terroristic 

threatening in the third degree. 

Both incidents were the subject of one indictment and trial. During trial, 

Johnson was cross-examined as to whether he had ever been convicted of three 

misdemeanor batteries in Indiana. Body camera footage from Officer Huber was 

played which partially showed his interview with Pittman and her statements 

made therein. At the conclusion of evidence, Johnson sought directed verdicts 

on several charges but particularly the first-degree robbery charge and fourth-
8

degree assault charge related to Latasha Martin from the December 26, 2019, 

incident, as well as the first-degree robbery charge and intimidating a 

participant in a legal proceeding charge related to Cheryl Martin from the same 

day. Finally, after the jury had pronounced its guilty verdict, Johnson was 

asked if he desired to poll the jury. He now argues that he did invoke that right

contrary to his counsel’s statements to the trial court that polling was 

unnecessary. We address each of these in more detail below. 

As to the December 2019 incident, the jury found Johnson guilty of firstdegree robbery for the taking and destruction of Cheryl’s phone; complicity to 

first-degree robbery for the taking of Latasha’s phone which was never 

recovered; first-degree strangulation; intimidating a witness in a legal process 

regarding Cheryl; fourth-degree assault regarding Cheryl; and terroristic 

threatening regarding Cheryl. Regarding the January 2020 incident, the jury 

found him guilty of first-degree assault and first-degree strangulation. The jury 

recommended various lengths of prison for each guilty count, the highest being 

twenty years for the first-degree assault, and recommended all sentences run 

concurrently for a total of twenty years. The trial court imposed the sentence. 

On appeal, Johnson has four arguments. First, that the trial court erred 

in allowing the Commonwealth to ask him about his three prior misdemeanor 

convictions for battery. This argument is further subdivided into three parts—

that criminal convictions for violent crimes do not rebut character evidence for 

generosity; misdemeanor convictions are improper rebuttal evidence under 
9

KRE2 405; and KRE 608 prohibited the Commonwealth from impeaching 

Johnson with the misdemeanor convictions. Second, Johnson argues the trial 

court erred in denying directed verdicts for both counts of first-degree robbery 

and one count of intimidating a witness in a legal proceeding (Latasha). Third, 

Johnson’s right to poll the jury was violated. Finally, that the trial court erred 

in admitting the body camera footage showing Officer Huber’s interview with 

Sheena Pittman, whose statements were testimonial hearsay. 

For the following reasons, we conclude the questions regarding the three 

misdemeanor convictions was not error. The admittance of Pittman’s hearsay 

statements via body camera footage was not a constitutional error and was

harmless error. There was no error in not polling the jury. We affirm the trial 

court’s denial of directed verdicts except for the first-degree robbery charge, 

which led to the conviction for the lesser-included complicity to first-degree 

robbery, regarding Latasha Martin.

II. Analysis

A. No Palpable Error in Discussing Three Misdemeanor Convictions

Appellate courts generally review evidentiary rulings for an abuse of 

discretion. Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018). When an 

objection is not properly preserved the review is for palpable error. Webb v. 

Commonwealth, 387 S.W.3d 319, 329 (Ky. 2012). A palpable error is one that 

substantially effects the rights of the defendant and “manifest injustice has 

2 Kentucky Rules of Evidence. 
10

resulted from the error.” RCr3 9.26. “To discover manifest injustice, a reviewing 

court must plumb the depths of the proceeding . . . to determine whether the 

defect in the proceeding was shocking or jurisprudentially intolerable.” Martin 

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

In this case, when the Commonwealth notified the trial court it desired to 

ask Johnson about the three misdemeanor convictions to rebut Johnson’s 

testimony of being kindhearted, defense counsel only stated “I would object for 

the record to that coming in.” There was no argument, no grounds stated, nor 

did defense counsel even ask for a ruling. Generic objections like this are 

generally disfavored “in fairness to the party offering the evidence and to give 

the trial court the opportunity to remedy any errors in the proceedings.” 

Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky. 2012). The defendant’s 

interest is to have errors avoided or remedied during trial to prevent a 

potentially tainted conviction. When objecting to the admission of evidence, the 

defendant “must be specific enough to indicate to the trial court and this court 

what it is he is objecting to.” Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 

1971). He must also “insist that the trial court rule on the objection, or else it 

is waived.” Id. We conclude the generic objection at trial was insufficient for 

preservation, but we will examine the issue under a palpable error review. 

During direct examination, Johnson asserted that he was a “kindhearted 

person.” On cross-examination the Commonwealth once again asked him to 

confirm that he had testified to being a kindhearted person. Johnson affirmed, 

3 Kentucky Rules of Criminal Procedure. 
11

stating “Yes, I am.” The Commonwealth asked to approach the bench. At the 

bench conference the Commonwealth declared that it intended to ask Johnson 

about his prior battery convictions out of Indiana to rebut the assertion to 

kindheartedness. When questioning resumed, the following colloquy occurred:

Commonwealth: So, you are a kindhearted person?

Johnson: Yes, ma’am. 

CW: And yet, you have been convicted of battery or domestic 

battery three times?

J: I’ve been convicted of it three times?

CW: Two battery convictions and one domestic battery 

conviction, isn’t that right?

J: Uh, excuse me.

CW: You have been convicted of battery two times and you 

have been convicted of domestic battery one time out of 

Indiana, is that correct?

J: Uh, yes. 

Johnson first argues that evidence of prior acts of violence in and of 

themselves are not proper rebuttal evidence because violence does not rebut 

generosity. Citing Vito Corleone from the 1972 film The Godfather, Johnson 

argues a violent person can also be generous. Johnson testified he was a 

“kindhearted person,” and did illustrate that kindheartedness with the example 

of freely giving drugs to fellow drug-users, so in that sense one might argue he 

was generous. But the specific words used at trial were “kindhearted” and 

generosity is a subset of kindheartedness, not equal to it. Kindhearted is 

defined as “having or showing a kind heart; kindly.” I The American College 
12

Encyclopedic Dictionary, Kindhearted, 672 (1952). Kindly is defined as 

“benevolent disposition or spirit.” Id. Benevolent, finally, is defined as “desiring 

to do good for others.” Id. at 114. From these definitions we see that a claim to 

be kindhearted is a broad one of general moral character and encompasses 

virtually all specific traits of good character. Therefore, to rebut a claim of 

kindheartedness, reputation for violence or specific acts of violence is 

permissible subject to the Rules of Evidence. As Professor Lawson observes, 

“[i]f an accused exercises this initiative [to put character in issue] with proof of 

general moral character, there is no obvious reason for disallowing evidence of 

a relevant specific trait in rebuttal, for the rebuttal evidence would narrow 

rather than broaden the character issue raised by the accused[.]” Robert G. 

Lawson, The Kentucky Evidence Law Handbook, (5th ed. 2013) § 2.20(2)(c).

Johnson also argues asking about the three misdemeanor convictions 

violated KRE 405 and KRE 608. The Commonwealth responds by ignoring that 

argument, and instead asserting the three misdemeanor convictions for battery 

are admissible under KRE 404(b). We conclude the controlling rule is curative 

admissibility. A correct evidentiary ruling by the trial court will not be reversed 

even if made for the wrong reasons. Lopez v. Commonwealth, 459 S.W.3d 867, 

875 (Ky. 2015). And we can affirm a trial court for any reason appearing in the 

record. Gasaway v. Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023). But it is 

worth reiterating that because of the generic objection made at trial, the trial 

court never articulated any reason for allowing the three battery convictions to 

be discussed. 
13

As noted, the claim to be kindhearted is a broad one of general moral 

character. Proof of general moral character is allowed by KRE 404(a)(1) if the 

defendant initiates. But there are limits to the method by which general moral 

character may be proven. 

[T]he law does not permit an accused to prove good character by 

making sweeping statement [sic] about his or her general virtue 

and morality (“I have never committed a crime in my life,” “I have 

never been in trouble with the law,” “I am an honest person,” etc.). 

When an accused (violating this prohibition) makes such 

statements, he/she puts character for substance in issue and 

opens the door to rebuttal by the prosecution.

Lawson, supra, at §2.20(2)(d). When a defendant strays beyond the limits, 

“specific acts that would not be admissible to prove character may be admitted 

into evidence in rebuttal of the claim of personal virtue and high morality.” Id.

at §2.25(3)(c). 

Although Prof. Lawson does not frame it in such terms, the rule he 

describes is curative admissibility. “[W]hen one party introduces improper 

evidence, such ‘opens the door’ for the other party to introduce improper 

evidence in rebuttal whose only claim to admission is that it explains or rebuts 

the prior inadmissible evidence.” Metcalf v. Commonwealth, 158 S.W.3d 740, 

746 (Ky. 2005). 

In Stansbury v. Commonwealth, the defendant was on trial for attempted 

murder of his fiancée. 454 S.W.3d 293, 296 (Ky. 2015). The Commonwealth 

asked the victim about her caring for her pets. Id. at 300. “His [Stansbury’s]

counsel asked Falconer [the fiancée] whether Stansbury had ever fed the pets.” 

Id. She responded that he had. The Commonwealth on re-direct then inquired 
14

as to how Stansbury treated the pets. She testified about his generally abusive 

conduct towards the pets such as beating them. Id. We held that conduct 

towards the pets was excludable as inadmissible character evidence, but by 

asking whether he had ever fed the pets, Stansbury “opened the door to the 

introduction of ‘good’ character evidence, [and] he cannot complain if the 

Commonwealth walked through that door and introduced character evidence 

not to his liking.” Id. at 301. 

Stansbury did not cite to any Rule of Evidence, but the rules do state, 

[o]n cross-examination of a character witness, it is proper to 

inquire if the witness has heard of or knows about relevant specific 

instances of conduct. However, no specific instance of conduct may 

be the subject of inquiry under this provision unless the crossexaminer has a factual basis for the subject matter of the inquiry.

KRE 405(b). In Johnson v. Commonwealth, 105 S.W.3d 430, 441-42 (Ky. 2003) 

and Commonwealth v. Higgs, 59 S.W.3d 886, 894 (Ky. 2001), we cited to KRE 

405(b) as supporting the curative admissibility rule. In Johnson, the Court 

stated in dicta that the daughter’s direct testimony that she had never “seen 

her dad have any illegal drugs in the house” opened the door for the 

Commonwealth to rebut that testimony on cross-examination by asking her if 

she knew he had pled guilty to a prior drug offense, despite the trial court 

having excluded that evidence prior to trial. Johnson, 105 S.W.3d at 441-42. In 

Higgs, the defendant’s father testified on direct that he did not believe his son 

was a thief, “which amounted to an opinion of Appellee's good character for 

honesty.” Higgs, 59 S.W.3d at 894. “The effect of the information elicited on 

cross-examination was that, at least as recently as the summer of 1995, he did 
15

believe Appellee was a thief.” Id. The Court resolved the issue specifically on the 

grounds of KRE 405(b) and curative admissibility. Id. at 894-95. We also 

clarified that “the target of this kind of impeachment evidence is the credibility 

of the character witness, not the prior conduct of the defendant.” Id. at 895. 

It should be noted, however, that credibility here is not to the 

truthfulness per se of the character witness, but rather the basis of the 

witness’ testimony. For example, if a witness testifies that a defendant is an 

honest person, the Commonwealth may ask whether the witness knew the 

defendant had committed specific instances of dishonest acts. If the witness 

answers “yes,” then the credibility of his testimony is undermined because it 

would seem contrary to an acknowledged fact. If he answers “no,” then the 

credibility is undermined because the witness then appears to be uninformed.

See Lawson, supra, at §2.25(4)(a). There is certainly a danger here for the 

defendant as specific acts of criminal conduct especially can be prejudicial, and 

Prof. Lawson does state KRE 403 would still be a basis for objection, even 

under the rule of curative admissibility. Id. But, as the Supreme Court of the 

United States noted in its seminal opinion Michelson v. United States, “[t]he 

price a defendant must pay for attempting to prove his good name is to throw 

open the entire subject which the law has kept closed for his benefit and to 

make himself vulnerable where the law otherwise shields him.” 335 U.S. 469, 

479 (1948).

KRE 405(b) and curative admissibility should not be conflated. Instead, 

the general rule of curative admissibility is that when a party opens the door 
16

with inadmissible testimony, the opposing party may rebut that testimony with 

inadmissible evidence in kind, Stansbury, 454 S.W.3d at 300; and KRE 405(b) 

allows for that rebuttal to include inquiry into specific instances of conduct the 

testifying witness “has heard of or knows about” so long as the specific 

instances of conduct are relevant and the party inquiring “has a factual basis 

for the subject matter of the inquiry.” KRE 405(b). 

In this case, Johnson testified to being kindhearted, i.e., having a great 

disposition to do good. The prior acts of violence—of which the three 

misdemeanor convictions are evidence of—were relevant to rebut that 

assertion. The convictions being public record, the Commonwealth obviously 

had a factual basis for the inquiry. Accordingly, we find no error in the 

Commonwealth asking Johnson on cross-examination if he had been convicted 

of three misdemeanor convictions for battery.

B. Admittance of Footage of Pittman’s Statements Not Error

As related in Section I, Pittman was a witness to the January incident, or 

at least a portion of it, and she was interviewed by Officer Huber when the 

police responded to the scene. Part of her statements in the body camera 

footage were played at trial. A motion in limine excluding hearsay statements in 

body camera footage had been granted by the trial court prior to trial, and an 

objection on Confrontation Clause and hearsay grounds was made at trial prior 

to the body camera footage being played. The issue is preserved. 
17

The dialogue from the body camera footage, as played at trial,4 is as 

follows:

Huber: Let’s slide down here real quick. Do you live here or up there?

Pittman: Up there. 

H: What did you see?

P: Me and my cousin, and her boyfriend are walking down, and she was 

trying to grab at me. She was beaten up like right here. He said that she 

fell down the steps, and he kept saying ‘uh, bitch, come on, get up, get 

up.’ My cousin was like I need to call the police when I was walking out.

H: Yeah.

P: So, that’s why I called you all. 

H: Um, ok.

P: Um, it sounded, I don’t know.

H: So, he said she fell, and did she look like she was intoxicated or 

anything?

P: No. We didn’t hear nothing about it. She didn’t fall down the steps.

H: Ok. Alright. 

Officer Huber testified that his interview with Pittman was to determine if

exigent circumstances existed to enter the apartment. 

One thing we must highlight is that the footage from Officer Huber’s body 

camera was not played in full at trial. As such, key context was missing. For 

example, there was no indication, purely from the body camera footage, when 

Officer Huber’s interview with Pittman occurred in the course of the stand-off. 

But review of Officer Martin’s body camera footage, which was played at trial 

earlier that day, showed the entirety of the stand-off. Comparison of the two 

4 In his briefing, Johnson includes the transcript of the entire interview. But, 

upon review of the cited portion of the video record in Johnson’s brief, that additional 

portion of the video was not played at trial.
18

videos demonstrates that Officer Huber’s interview with Pittman occurred in 

the first few minutes of the police’s arrival at Cheryl’s apartment door.5 The 

portion of Officer Huber’s body camera footage shown at trial was within the 

first two minutes after the police first knocked on the apartment door. It was 

less than three minutes after the first knock that Officer Martin called for 

Officer Huber to join the four other officers, and that is when Officer Huber’s 

interrogation ended. 

At this point, the police had only noted blood on the stairwell and on the 

outside of the door. They had also heard what they believed to be moans from 

inside the apartment, though Officer Huber was not then present. The officers 

were intermittently discussing these things and whether exigent circumstances 

existed based on the blood and moans emanating from inside the apartment. It 

was approximately nine minutes from the first knock that Officer Martin went 

outside and was able to look inside the apartment. Based on Officer Martin’s

observations and his contemporaneous statements made in the video, he 

believed exigent circumstances existed to “kick that door.” It would be another 

six minutes, however, almost fifteen minutes exactly from the time the first 

knock was made, before police kicked the door down, and it was only upon the 

5 Particularly, the nature of the knocks on the apartment door as heard in 

Officer Huber’s footage while interviewing Pittman can be synced up with Officer 

Martin’s footage. Also, review of Officer Martin’s body camera footage shows Officer 

Huber, identifiable in both videos by his toboggan, leaving the stairwell immediately 

outside the apartment, where other officers are also standing, and going to conduct 

the interrogation of Pittman. Finally, Officer Martin can be heard calling for Officer 

Huber in both videos which concluded the interrogation. 
19

orders of an officer that Officer Martin repeatedly addresses as “sarge” that 

Officer Huber kicked the door down. 

Both parties center their constitutional arguments on the leading cases 

from the Supreme Court of the United States: Crawford v. Washington, 541 

U.S. 36 (2004); Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 

(2006); and Michigan v. Bryant, 562 U.S. 344 (2011). Also included in the 

arguments is our opinion in Rankins v. Commonwealth, 237 S.W.3d 128 (Ky. 

2007). 

The Supreme Court in Crawford held that pursuant to the Sixth 

Amendment’s Confrontation Clause, “[t]estimonial statements of witnesses 

absent from trial have been admitted only where the declarant is unavailable, 

and only where the defendant has had a prior opportunity to cross-examine.” 

Crawford, 541 U.S. at 59.6 The Supreme Court, however, declined to give a 

definition of ‘testimonial’ in that case. Instead, it merely listed certain 

circumstances where the testimonial nature of the statements could not be 

doubted—"it applies at a minimum to prior testimony at a preliminary hearing, 

before a grand jury, or at a former trial; and to police interrogations.” Id. at 68. 

In Crawford, the prosecution had sought to introduce out-of-court statements 

of the defendant’s wife, made during a tape-recorded police interrogation. Id. at 

39-40.

6 Johnson has not made any argument in his briefing regarding Pittman’s 

availability. We therefore focus solely on the testimonial element.
20

In Davis v. Washington and Hammon v. Indiana, the Supreme Court 

stated

Statements are nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance 

to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later criminal 

prosecution.

547 U.S. at 822. But in Davis, the “interrogation” in that case involved the 

questions of a 911 operator and the victim when the victim was calling for 

police aid. Id. at 826. As such, the Supreme Court held the statements, though 

a result of an interrogation, were non-testimonial because: 1) the victim was 

speaking about events as they were happening; 2) the victim was facing an 

ongoing emergency and “was plainly a call for help against [a] bona fide 

physical threat;” 3) “the elicited statements were necessary to be able to resolve 

the present emergency, rather than simply to learn (as in Crawford ) what had 

happened in the past;” and 4) the formality of the interview, which might better 

be understood as the environment of the interview.7 Id. at 827. Accordingly, the 

Supreme Court held in Davis that the “primary purpose [of the interrogation

and statements] was to enable police assistance to meet an ongoing 

emergency.” Id. at 828.

7 I.e., the Supreme Court noted the victim’s “frantic answers were provided over 

the phone, in an environment that was not tranquil, or even (as far as any reasonable 

911 operator could make out) safe.” Id. at 827. In contrast, the witness in Crawford

“was responding calmly, at the station house, to a series of questions, with the officerinterrogator taping and making notes of her answers[.]” Id.
21

The statements of the victim in Hammon, however, “were not much 

different from the statements we found to be testimonial in Crawford.” Id. at 

829. 

Both declarants were actively separated from the defendant . . . 

Both statements deliberately recounted, in response to police 

questioning, how potentially criminal past events began and 

progressed. And both took place some time after the events 

described were over. Such statements under official interrogation 

are an obvious substitute for live testimony, because they do

precisely what a witness does on direct examination; they are 

inherently testimonial.

Id. at 830. Moreover, no emergency was ongoing when police first arrived and 

the victim in fact told the police things were fine. Id. at 829-30. 

Particularly relevant to the case at hand though, is that given the law as 

elucidated, the Supreme Court felt it necessary to explicitly reject the idea that 

“virtually any ‘initial inquiries’ at the crime scene will not be testimonial[.]” Id.

at 832. But the Court noted that particularly in cases of domestic abuse

‘officers called to investigate . . . need to know whom they are 

dealing with in order to assess the situation, the threat to their 

own safety, and possible danger to the potential victim.’ Hibel [v. 

Sixth Jud. Dist. Court of Nevada, Humboldt Cnty.], 542 U.S. [177 

(2004)], at 186, 124 S.Ct. 2451. Such exigencies may often mean 

that ‘initial inquiries’ produce nontestimonial statements.

Id. at 832. Put simply, under a plain reading of Davis, the initial inquiries of 

officers, at least when they respond to domestic disputes, in order to assess the 

situation, the threat to themselves, and the threat to the victim, may elicit 

statements that sound testimonial but are non-testimonial given the immediate

and primary purpose of assessing the situation and threat levels. It all depends 
22

on the surrounding context of the situation in which those initial inquiries and 

their answers are made. 

In Rankins v. Commonwealth, we summarized our understanding of 

Crawford, Davis, and Hammon, thusly:

Where statements recount potentially criminal past events, the 

declarant is, for Confrontation Clause purposes, acting as a 

witness against the accused. More simply, statements that tell 

“what is happening” are nontestimonial, while statements that tell 

“what happened” are testimonial. Accordingly, the Court held that 

the present-tense statements by the victim in Davis to the 911 

operator were nontestimonial. The statements by the victim to the 

police officer in Hammon, because they related past events, were 

testimonial.

237 S.W.3d 128, 131 (Ky. 2007) (internal citations omitted). If understood in a 

literal sense, Rankins clearly holds that any statement recounting a past event 

is testimonial under Supreme Court precedent. But we acknowledged in 

Hartsfield v. Commonwealth, that whether the witness’ statement was made in 

the present-tense or recounting a past event was merely one of several factors 

the Supreme Court commands to be considered to determine whether a 

statement was testimonial. 277 S.W.3d 239, 244 (Ky. 2011). Rankins also held

“it is in the final analysis the declarant's statements, not the interrogator's 

questions, that the Confrontation Clause requires us to evaluate.” Rankins, 237 

S.W.3d at 131 (quoting Davis, supra, at 822 n.1). 

The statements in Rankins quoted above must be clarified as, if taken too 

literally and out-of-context, they could be contrary to Supreme Court 

precedent. The Supreme Court has affirmed that merely recounting a past 

event was not, by itself, enough to make a statement testimonial. Michigan v. 
23

Bryant, 562 U.S. 344, 370 (2011). It has also clarified that “Davis requires a 

combined inquiry that accounts for both the declarant and the interrogator.” 

Id. at 367. While the witness’ statements must pass constitutional muster and 

therefore are the focus of the inquiry in that sense, “[o]bjectively ascertaining 

the primary purpose of the interrogation by examining the statements and 

actions of all participants is also the approach most consistent with our past 

holdings.” Id. (emphasis added). We cannot look to the witness’ statements 

alone nor can we apply a grammatical test that merely looks to the past-tense 

or present-tense of the statements. “[W]hen a court must determine whether 

the Confrontation Clause bars the admission of a statement at trial, it should 

determine the ‘primary purpose of the interrogation’ by objectively evaluating 

the statements and actions of the parties to the encounter, in light of the 

circumstances in which the interrogation occurs.” Id. at 370.

In Bryant, the victim was shot and retreated to a gas station. Id. at 349. 

He was shot around 3 a.m., but police did not get the emergency call until 3:25 

a.m. Id. When police arrived, at least five officers all proceeded to ask the 

victim, Covington, what happened, who shot him, and where was he shot. Id. 

Covington responded that a man named “Rick” shot him, that he spoke with 

him through the back door of Rick’s house, and “explained that when he 

turned to leave, he was shot through the door and then drove to the gas 

station, where police found him.” Id.

On its face, these questions and the answers recounted a past event, 

where it occurred, and who was involved. The interrogation took place 
24

approximately twenty-five minutes after the shooting occurred. But because 

these questions were meant to address an ongoing emergency, the primary 

purpose of the interrogation was not to solicit information relevant for use in a 

later prosecution but to address that ongoing emergency. Id. at 375. 

The Supreme Court would later again reaffirm that the touchstone of the 

inquiry is the primary purpose of the interrogation based on the context in 

which the interrogation occurred—"under our precedents, a statement cannot 

fall within the Confrontation Clause unless its primary purpose was 

testimonial. ‘Where no such primary purpose exists, the admissibility of a 

statement is the concern of state and federal rules of evidence, not the

Confrontation Clause.’” Ohio v. Clark, 576 U.S. 237, 245-46 (2015) (quoting 

Bryant, supra, at 359). “[T]he primary purpose test is a necessary, but not 

always sufficient, condition for the exclusion of out-of-court statements under 

the Confrontation Clause.” Id. at 246. A statement is only testimonial when it 

has the “primary purpose of creating an out-of-court substitute for trial 

testimony.” Id. at 250-51 (quoting Bryant, supra, at 358). 

Bryant similarly made clear that 

The existence of an emergency or the parties' perception that an 

emergency is ongoing is among the most important circumstances 

that courts must take into account in determining whether an 

interrogation is testimonial because statements made to assist 

police in addressing an ongoing emergency presumably lack the 

testimonial purpose that would subject them to the requirement of 

confrontation.

562 U.S. at 370. “[T]he scope of an emergency in terms of its threat to 

individuals other than the initial assailant and victim will often depend on the 
25

type of dispute involved.” Id. at 372. The Supreme Court noted in that case that 

nothing Covington told the police indicated he was shot because of a private 

dispute or that the threat from the shooter had ended. Id. Therefore, the 

victim’s statements in Bryant expanded the scope of the emergency potentially 

to the police and the public. Id. at 373. Courts must not construe an 

“emergency to last only precisely as long as the violent act itself . . . .” Id.

But “the existence vel non of an ongoing emergency is not the touchstone 

of the testimonial inquiry[.]” Id. at 374. Courts must still evaluate whether the 

primary purpose of the interrogation was to meet the ongoing emergency. Id.

That inquiry, however, is “informed by the circumstances of the ongoing 

emergency . . . .” Id. At this point, Ohio v. Clark is instructive. In sharp contrast 

to a shooting victim in downtown Detroit, as in Bryant, the Supreme Court 

found an ongoing emergency existed involving a three-year old child, a day 

after his injuries occurred. Clark, 576 U.S. at 246. The child had gone to school 

with visible injuries on his face alerting his teachers, who asked him what 

happened and who did this. Id. at 241. The Supreme Court held the teachers’ 

questions were prompted by “the immediate concern . . . to protect a vulnerable 

child who needed help.” Id. at 247. “L.P.'s teachers were not sure who had 

abused him or how best to secure his safety. Nor were they sure whether any 

other children might be at risk. As a result, their questions and L.P.'s answers 

were primarily aimed at identifying and ending the threat.” Id. The Supreme 

Court also rejected testing the testimonial nature of statements by whether 
26

they had a natural tendency to lead to prosecution, declaring that “irrelevant.”

Id. at 250. 

The statements at issue in Davis and Bryant supported the 

defendants' convictions, and the police always have an obligation 

to ask questions to resolve ongoing emergencies. Yet, we held in 

those cases that the Confrontation Clause did not prohibit 

introduction of the statements because they were not primarily 

intended to be testimonial.

Id.

After this lengthy survey, we now turn to an analysis of the facts before 

us. Pittman called police for a domestic dispute. Police responded 

approximately two minutes thereafter to the scene. Officer Huber was one of 

the responding officers. His interrogation with Pittman occurred within the first 

two minutes of him and his fellow officers arriving at the door of Martin’s 

apartment. Blood was plainly visible on the stairs immediately outside her 

apartment. Officer Huber conducted his interrogation a flight below those 

stairs, with his fellow officers clearly and repeatedly knocking on the door. 

From this immediate context, the officers, including Huber, had not determined 

an ongoing emergency existed. Instead, they were confronted with whether an 

ongoing emergency existed in the first place. They had not come into contact 

with Martin, so they had not determined the status of the victim; indeed, they 

had not determined if there was a “victim” even in existence. 

The circumstance of this interrogation is not readily analogous to any of 

those found in Crawford, Davis, Hammon, Bryant, or Clark. But the informality 

of the scene where the interrogation happened—a flight below an apartment 

where there is potentially an ongoing emergency, police are repeatedly 
27

knocking on the door, sometimes quite aggressively—does not lend itself to a 

conclusion tending towards testimonial. “[T]he circumstances lacked any 

formality that would have alerted [Pittman] to or focused [her] on the possible 

future prosecutorial use of [her] statements.” Bryant, 562 U.S. at 377.

Officer Huber asked Pittman, “What did you see?” And Pittman’s 

statements were a recounting of a past event; that Martin “was trying to grab at 

me. She was beaten up like right here. He said that she fell down the steps and 

he kept saying, uh, ‘bitch, come on, get up, get up.’” Officer Huber then asked, 

“So, he said she fell, and did she look like she was intoxicated or anything?” 

This question was prompted by the inherent conflict in Pittman’s statement—

whether Martin fell or was “beaten up.” This obviously went to the very 

dilemma presented to the police at that moment: did an ongoing emergency 

exist. At this time, without having established any kind of contact with Martin, 

the police were confronted with a situation in which a person could potentially 

be somewhat hurt but not in any kind of emergency; or potentially that a 

victim could be inside the apartment, possibly even with her assailant (as no 

contact with Johnson had been established at this time either), and subject to 

continuing attacks. 

Pittman’s response to Officer Huber’s second question was “No. We didn’t 

hear nothing about it. She didn’t fall down the steps.” This statement, in and of 

itself, certainly sounds testimonial. But the overall context counsels against 

that conclusion. Bryant commands that we evaluate the motives, often mixed 

motives, of victims and witnesses when making statements to the police. 
28

Bryant, 562 U.S. at 368. Conceivably, Pittman could have understood that this 

statement could be used in a later prosecution, but the immediate context and 

the primary motivation at the moment the statement was given, was to give 

information to the police so they could determine what kind of situation they 

were dealing with. We also look to the motives of the police officer in asking his 

questions. Id. As made plain above, the police were at that time in a situation 

in which several key facts were not known, all of which governed their potential 

actions. If Martin had only fallen but was not seriously injured, then there 

would be no exigent circumstances to enter the apartment. If Martin had fallen 

but was severely injured, would that be enough to satisfy exigent 

circumstances? If she had been attacked, was she safe inside the apartment? 

Who was her attacker? Where was he? The only thing police knew for sure was 

that there was a potential victim of domestic violence, as demonstrated by the 

domestic dispute call and blood on the stairs, and her safety was the 

immediate question. Officer Huber was not at the time of interrogation 

primarily seeking to gather evidence for later prosecution but was making an 

initial inquiry at the scene of a possible crime, which possibly presented an 

ongoing emergency. Davis, 547 U.S. at 832. We conclude that the primary 

purpose of Pittman’s statements was to help police determine whether an 

ongoing emergency existed and therefore are non-testimonial. 

Even if we included the full interview, despite it not being shown at trial, 

our conclusion would not change. After Officer Huber stated “Ok. Alright.” a 

pause of fifteen seconds occurred. Officer Huber stopped asking questions and 
29

Pittman stopped talking; she even turned her body away from Officer Huber 

and started looking back up the stairs. Pittman then started talking to Officer 

Huber again, unprompted by him, but what she said is inaudible. The following 

occurred:

Huber: So, she was . . . was she conscious when she went in there?

Pittman: She was laying like this here. 

H: So, he drugged her in?

P: Yeah, I was only a couple of steps from my apartment, and they were 

right here at the bottom, and as I walked him out, and she was trying to 

grab . . . I guess, his hand, it was like she [inaudible].

H: She was trying to grab somebody’s hand, ok.

P: Hm-mm. 

At this point the interrogation concluded as Officer Martin called Officer Huber 

back to the apartment door. Officer Huber asked Pittman if Cheryl Martin had 

been conscious, which obviously goes to her medical state and safety. 

Pittman’s descriptions of the event, and her recounting that Martin was trying 

to grab somebody’s hand, was to describe Martin’s physical actions to show 

she was indeed conscious and responsive at the time. The primary purpose of 

this second exchange was still relevant to whether or not an ongoing 

emergency existed; however, the primary purpose of this second exchange 

could also be more specifically described as ascertaining the medical state of 

Martin. In either case, the statements would be non-testimonial because their 

primary purpose was not for “creating an out-of-court substitute for trial 

testimony.” Bryant, 562 U.S. at 358; Clark, 576 U.S. at 250-51. 
30

Johnson argues that Pittman’s answers did not provide information to 

officers for “immediately end[ing] a threatening situation behind an apartment’s 

closed door.” He also argues that the emergency should be confined to within 

Martin’s apartment. “A locked door separated her apartment from the stairwell, 

thus there was no emergency in the stairwell where Pittman met Huber.” As for 

the first argument, its error is in attributing subsequent facts to an earlier 

period in time. It is true that the police did not kick down the door until they 

had established a line of sight upon Martin inside the apartment, and that it 

was her medical condition that ultimately controlled their decision to forcibly 

enter their apartment. But it does not follow that because the police did not 

conclude exigent circumstances existed to kick down the door immediately 

after Officer Huber interrogated Pittman, that such interrogation must have 

had as its primary purpose creation of an out-of-court substitute for trial 

testimony. That is a pure non-sequitur. As we concluded, Pittman’s statements 

had as their primary purpose to aid the police in determining whether there 

was an ongoing emergency. The fact that police could not or did not reach that 

conclusion after receiving her statements does not negate that purpose. 

As to the second argument, it may be true enough that the actual 

emergency existed within the apartment and Pittman could not describe what 

was going on behind a closed door. But the events in the stairwell were 

obviously relevant in helping the police resolve the exact question of whether 

there was an ongoing emergency within the apartment. Officer Huber’s 

questions were initial inquiries to assess the situation and determine the threat 
31

to and safety of Martin. Pittman’s primary purpose in giving her answers were 

to aid those determinations. The fact that Pittman was not in an ongoing 

emergency herself does not negate that. Indeed, in Hartsfield, we held that a 

statement was not testimonial, in part, because it was “in the nature of seeking 

help for an emergency (even though it was not ongoing).” Hartsfield, 277 

S.W.3d at 245. Pittman was seeking help on behalf of Martin.

Having determined that the statements do not present a constitutional 

issue, we must still determine whether they were admissible under hearsay 

exceptions. KRE 803. We will not belabor this point, in an already lengthy 

opinion. We assume without deciding that Johnson is correct that the 

statements do not fall within a hearsay exception and proceed to a harmless 

error analysis. RCr 9.24. “The test for harmlessness is whether the error 

substantially swayed the verdict.” Allen v. Commonwealth, 395 S.W.3d 451, 

467 (Ky. 2013). If the error had substantial influence “or if one is left in grave 

doubt, the conviction cannot stand.” Id. (internal quotation omitted). 

Johnson contends that but for Pittman’s statements in the video there 

was no other witnesses the Commonwealth had to discredit his account that 

Martin fell down the stairs. To the contrary, the testimony of Dr. O’Brien and 

Nurse Yazel recounted the numerous and significant injuries to Martin, as well 

as their conclusion that she did not suffer these injuries, or at least a portion of 

them, from a fall. The unrefuted medical testimony in this case supported the 

jury’s conclusion that Johnson had acted wantonly toward Martin and 
32

supported the conviction for assault in the first-degree. Pittman’s statements 

were not substantially influential upon the jury, nor do we have grave doubts. 

C. No Error in Not Polling Jury

Johnson argues he was denied his right to have the jury polled. When 

the trial court asked if Johnson wished to poll the jury, Johnson and his 

counsel began an inaudible discussion between them. Finally, counsel replied, 

“No, your honor, I don’t think that is necessary.” Johnson immediately 

interrupted and said, “No. Yes, yes, yes.” Counsel asked him, “You do?” At 

which point, Johnson asserted, “I’m trying to figure out what is going on.” More 

inaudible discussion occurred until Johnson, clearly somewhat perturbed, 

audibly stated,

Oh, the verdicts? It just went on. Are you serious? So, no, have we 

agreed on. No. We agreed on not using hearsay at the beginning of 

this trial and hearsay was used. It was shown on that DVD. And 

you, the prosecutor, and the judge agreed on that. What does that 

mean? A mistrial? It wasn’t planned fair or what?

While making this statement, the video record shows Johnson addressing the 

Commonwealth’s Attorney; it was not a discussion with his counsel. Afterward, 

the trial court simply said “Okay.” And Johnson’s counsel again stated, “I don’t 

think polling’s necessary, your honor.”

The right to poll the jury is not explicit in our constitution. Instead, it is 

grounded in the right of the accused, with counsel, to be present at all stages 

of the trial. Ky. Const. § 11; Temple v. Commonwealth, 77 Ky. 769, 771 (1879).

The Defendant

has a right not only to see and know that the whole jury is present 

assenting to the verdict, but by polling to demand face to face of 
33

each juror whether the verdict is his verdict, and to object to it 

unless each member of the jury shall answer for himself that the 

verdict is his.

Temple, 77 Ky. at 771. On the other hand, Section 11

does not make it necessary under all circumstances for the 

accused to be present at every stage of the trial. All that it does is 

to guarantee his right to be present if he so desires. This court has 

held in a number of cases that the privileges guaranteed by this 

section are personal to the accused and may be waived.

Boering v. Beard, 10 S.W.2d 447, 450 (Ky. 1928). Thus, the failure to poll the 

jury when requested and preserved is reversible error. Id. at 447. But absence 

does not void the judgment. Id. at 451. It is also important to note that there is 

no rule requiring trial courts to automatically poll the jury; it is only required 

when requested by a party. RCr 9.88. 

In Temple, the conviction was reversed when the jury verdict was 

received by the trial court in absence of both the defendant and his counsel. 

Temple, 77 Ky. at 770. In Powell v. Commonwealth, the conviction was reversed 

when the verdict was received with the defendant present but not his counsel. 

346 S.W.2d 731, 733 (Ky. 1961). In that case, the Court assumed that the 

defendant did not know he had a right to poll the jury. Id. And that assumption 

provides a necessary caveat to the Court’s statement that though polling the 

jury may be waived, “in such a case the waiver should be so clear and 

unequivocal as to indicate a conscious intent.” Id. at 734. In other words, 

because the defendant was assumed to not know he had a right to poll the 

jury, the failure of the defendant to assert that right, in absence of his counsel, 

could not be considered waiver. This is in contrast to Asher v. Commonwealth, 

where without any mention of absence of either the Defendant or his counsel,
34

the Court held that because “the record fails to show that he made any request 

for a poll of the jury . . . it follows that the appellant by failing to make such a 

request waived his right to such a poll.” 299 S.W. 568, 568 (Ky. 1927).

 In this case, Johnson and counsel were present. The issue is whether 

Johnson, distinct from his attorney, asserted his right to poll the jury such 

that the failure to do so by the trial court was reversible error. “In the absence 

of exceptional circumstances, a defendant is bound by the trial strategy 

adopted by his counsel.” Breazeale v. Commonwealth, 600 S.W.3d 682, 694 

(Ky. 2020) (quoting Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 

1977)). Johnson’s counsel twice gave an unequivocal answer that polling was 

unnecessary. Johnson, as clear from the record, was not sure what exactly was 

being asked by the trial court. He queried “What just happened?” and then 

declared “I’m trying to figure out what is going on.” Then he began to address 

the Commonwealth’s Attorney specifically—not his counsel nor the trial court—

about hearsay evidence and the body camera footage addressed earlier in this 

opinion. Although Johnson did declare “Yes, yes, yes,” it is clear from the entire 

context that Johnson was attempting to argue substantive issues regarding the 

admission of hearsay evidence, and not that he wanted the trial court to ensure 

each individual juror’s assent to the verdict. Under these circumstances, we 

cannot say that Johnson asserted his right to poll the jury. Nor do we think 

this provides an “exceptional circumstance” that Johnson should not be bound 

by the two waivers of the right by his counsel. Therefore, we hold there was no 

error. 
35

D. Directed Verdict for First-degree Robbery (Latasha Martin) should 

have been Granted, but otherwise Trial Court is Affirmed

Johnson argues he should have been granted a direct verdict as to the 

first-degree robbery charge relating to Latasha Martin because the trial court 

had granted a directed verdict for the fourth-degree assault charge against him 

relating to Latasha Martin, both stemming from the same events. Because the 

trial court specifically concluded there was no evidence Latasha Martin was 

physically injured as required by the fourth-degree assault statute, KRS 

503.080(1)(a), Johnson argues he could not simultaneously be guilty of firstdegree robbery or complicity thereto, which also requires a physical injury, if 

there has not been a dangerous weapon or dangerous instrument used. KRS 

515.020(1)(a). He also argues that he should have been granted a directed 

verdict on the first-degree robbery charge relating to Cheryl Martin and

intimidating a witness in a legal proceeding related to Cheryl Martin.

The legal standards for a directed verdict motion are clear: “[i]f 

under the evidence as a whole it would not be clearly unreasonable 

for a jury to find the defendant guilty, he is not entitled to a 

directed verdict of acquittal.” Trowel v. Commonwealth, 550 S.W.2d 

530, 533 (Ky. 1977). “The trial court must draw all fair and 

reasonable inferences from the evidence in favor of the party 

opposing the motion, and a directed verdict should not be given 

unless the evidence is insufficient to sustain a conviction. The 

evidence presented must be accepted as true. The credibility and 

the weight to be given the testimony are questions for the jury 

exclusively.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).

The standard for appellate review is equally clear: “[o]n appellate 

review, the test of a directed verdict is, if under the evidence as a 

whole, it would be clearly unreasonable for a jury to find guilt, only 

then the defendant is entitled to a directed verdict of acquittal.” 

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

Eversole v. Commonwealth, 609 S.W.3d 209, 217-18 (Ky. 2020).
36

As to Johnson’s first argument, we agree. Under the facts of this case, 

the fourth-degree assault against Latasha required a physical injury with 

intentional or wanton state of mind. KRS 508.030(1)(a). The only evidence 

supporting the physical injury of Latasha was Cheryl’s testimony that 

Johnson’s friends jumped Latasha and hit her, but Cheryl explicitly stated she 

did not see that happen. Fourth-degree assault is a lesser-included offense to 

first-degree robbery. Mack v. Commonwealth, 136 S.W.3d 434, 439-40 (Ky. 

2004). The principal difference between the two is that first-degree robbery 

requires an additional element of “in the course of committing theft . . . .” Id. at 

439; KRS 515.020(1). Because the trial court dismissed the fourth-degree 

assault charge for the failure of proof regarding physical injury—an element 

shared by both charges—Johnson is correct in his assertion that there was 

equally a failure of proof on the physical injury for the first-degree robbery 

charge. 

In Campbell v. Commonwealth, this Court held 

the defendant is entitled to a complete acquittal i. e., when, looking 

at the evidence as a whole, it would be clearly unreasonable for a 

jury to find the defendant guilty, under any possible theory, of any 

of the crimes charged in the indictment or of any lesser included 

offenses.

564 S.W.2d 528, 530 (Ky. 1978), overruled on other grounds by Ray v. 

Commonwealth, 611 S.W.3d 250, 265 (Ky. 2020) (emphasis added). If there is a 

failure of proof for an element of the greater-offense that is shared by the 

lesser-included offense, then a directed verdict on the greater-offense on the 

basis of that failure of proof extends down to the lesser-included offenses as 
37

well. We see no reason why it should not also extend upward. If the 

Commonwealth has failed to prove an element of a lesser-included offense that 

is shared by the greater offense, it is illogical to grant a directed verdict upon 

the lesser-included offense but not also the greater-offense. Here the trial court 

found insufficient proof for physical injury regarding fourth-degree assault. It 

stated, “We need more . . . We just don’t have anything about physical injury 

here.” There could not at the same time be sufficient proof for physical injury 

under first-degree robbery since both charges stemmed from the same alleged 

event—the “jumping” of Latasha by Johnson’s friends—and the same 

testimony. Therefore, the trial court should have granted a directed verdict as 

to the first-degree robbery regarding Latasha Martin. Johnson’s conviction for 

complicity to first-degree robbery against Latasha Martin is reversed. 

As to the second and third arguments, however, we disagree. As to the 

first-degree robbery related to Cheryl Martin, Johnson argues that he did not 

intend to deprive her of her property when he took her phone, citing Hall v. 

Commonwealth, 551 S.W.3d 7 (Ky. 2018). Johnson argues that here “the 

evidence shows he lacked intent to permanently deprive Ms. Martin of her 

cellphone or dispose of it where she could never find it. Absent the intent to 

deprive her of the cellphone, there is no theft, and thus no robbery.” 

We recognize that first-degree robbery incorporates the elements of theft 

by unlawful taking. Lloyd v. Commonwealth, 324 S.W.3d 384, 390 (Ky. 2010). 

Therefore, Hall is instructive but not controlling. In that case, we held, under 

KRS 514.030, the theft by unlawful taking statute, “that no reasonable juror 
38

would think that a defendant who uses a police cruiser to flee from police, then 

abandons it in the middle of the road with the police in hot pursuit, intends 

that the property not be restored to the police.” Hall, 551 S.W.3d at 15. In other 

words, there was no intent to deprive, under the statutory definition of that 

word. Id. at 12-14. Hall held that one definition of deprive was “withhold 

property of another permanently.” Id. at 13; KRS 514.010(1)(a). It then provided 

a definition of that phrase as “the property never be restored to its rightful 

owner.” Id. One can withhold property without maintaining actual possession 

of it, and one can even abandon the property and still be withholding it. Id. The 

reason Hall is not controlling is because that case did not deal with the 

destruction of the property after it was stolen. That Johnson took Martin’s 

phone is not disputed; the dispossession of property is conceded. The phone 

was recovered, broken and “split in half” according to Martin, outside the 

apartment building. It was able to receive a phone call, but Martin testified the 

phone only rang once and she had to replace it. Johnson argues that this does 

not constitute intent to permanently deprive Martin of her phone because he 

merely “discarded” it in an easily recoverable location outside the apartment 

building and that the phone still worked.

Although Lloyd recognized the elements of theft by unlawful taking are 

incorporated into first-degree robbery, it is not clear that there is a strict 1:1 

incorporation. First, KRS 515.020 does not require a completed theft, only an 

attempt—“we view the first-degree robbery provision as a deterrent to 

assaulting an individual . . . with the intention of unlawfully obtaining his 
39

property whether any of that property is actually taken or not.” Lamb v. 

Commonwealth, 599 S.W.2d 462, 464 (Ky. 1979). Second, Lamb also recognizes 

the General Assembly’s intent of the first-degree robbery statute was to 

emphasize the crime upon the person and de-emphasize the crime to property. 

Id. at 463. In contrast, theft by unlawful taking only focuses on the property. In 

Lamb, the defendant did not gain possession of any property at all, but he tried 

to do so at knifepoint. Id. at 462. Thus, it is not clear that the subsequent 

actions Johnson took with the phone are relevant. The phone being taken, 

accompanied by a physical injury by Johnson upon Martin by his use of 

physical force, strikes us as a textbook example of first-degree robbery.

But we need not solve this riddle to reach a resolution. Considering 

Johnson’s subsequent actions with the phone—his destruction of it such that 

it was “split in half,” it was only able to ring once afterward, and the necessity 

to replace it by Martin—surely constitutes a deprivation of her property. A cell 

phone that cannot function is only barely distinguishable from a paperweight, 

and obviously has no utility and little, if any, value. The taking of property and 

its subsequent destruction so that it can no longer function as normal

constitutes an act of withholding property of another permanently. The act of 

destruction is the means by which the withholding is accomplished, much like 

Hall recognized an act of abandonment can also be the means of withholding 

property. Hall, 551 S.W.3d at 13. Martin’s recovery of the physical device itself 

does nothing for Johnson, first, because to give that factor any weight would be 

contrary to the legislative intent behind KRS 515.020 to de-emphasize the 
40

crime to property. Lamb, 599 S.W.2d at 463. And secondly, because KRS 

515.020 does not require an accomplished theft. Id. Imperfect destruction of 

the phone qualifies as an incomplete withholding of property of another. 

Because the intention to do a criminal act “can be inferred from facts and 

circumstances[,]” Hall, 551 S.W.3d at 13, it was not unreasonable for the jury 

to find guilt for first-degree robbery under the evidence as a whole. 

Johnson also argues that he took the phone prior to any physical force 

upon Martin, or in other words, that the theft was accomplished prior to the 

physical force and physical injury. The law does not require a chronological 

priority of physical force, physical injury, then theft. So long as the physical 

force is used “in the course of committing theft . . .” and there was an “intent to 

accomplish the theft . . . ,” KRS 515.020(1), then whether or not a theft is even 

accomplished, so long as it is attempted, and physical injury to a person not a 

participant in the crime results, then one is guilty of first-degree robbery. 

Martin’s testimony establishes that the physical force and injury occurred 

immediately after the theft; she did not imply any significant break in time 

between the theft and the physical injury. She said, “He drug from me from my 

front room to my kitchen after snatching my phone out of my hand. And held 

me up on the wall, and then drug me to the hallway and threw me down a 

flight of steps.” We therefore cannot say as a matter of law that Johnson’s 

infliction of physical injury upon Martin was not in the course of committing 

theft, and therefore it was not unreasonable for a jury to find guilt for firstdegree robbery under the evidence as a whole. 
41

Finally—as to the directed verdict for intimidating a participant in the 

legal process related to Cheryl Martin, citing Edmonds v. Commonwealth, 433 

S.W.3d 309, 321 (Ky. 2014)—Johnson argues the law requires some prior 

crime had to have occurred prior to the intimidation, or threat, which he 

argues did not happen here. Instead, because he took Martin’s phone prior to 

assaulting her, and the assault itself was part of the intimidation, there is a 

failure of proof requiring a directed verdict. But Cheryl testified that prior to 

Johnson taking her phone she had ordered him and his friends to leave her 

apartment and had threatened to call the police. When she came back to the 

apartment after giving Johnson time to leave, he was still there, and apparently 

inviting additional friends over. It was then after one of those friends arrived 

that he took Martin’s phone and assaulted her. Martin testified that she 

believed Johnson had taken her phone to prevent her from calling the police. A 

criminal trespass, a Class A misdemeanor, occurs when a person “knowingly 

enters or remains unlawfully in a dwelling.” KRS 511.060(1). Johnson was not 

a co-tenant with Martin. When Martin told him that he needed to leave her 

apartment, that constituted a revocation of his privilege to be in her dwelling. 

Under KRS 524.020, “if the legal process could be invoked, and a 

defendant intends to prevent a victim from participating in the legal process, 

then this statute can apply.” Edmonds, 433 S.W.3d at 319. If Johnson meant 

to “intentionally hinder or delay” Martin “from reporting the crime he 

committed that could legally result in criminal charges being brought against 

him[,]” then he has intimidated a participant in the legal process. Id. at 321. 
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Here Martin’s testimony supported the conclusion that Johnson had 

committed a crime, criminal trespass, and that she had threatened to call the 

police to effectuate his removal. A jury could then reasonably infer that 

Johnson knew the legal process could be invoked against him, and that when 

he took the phone from her hand and assaulted her, he was attempting to 

hinder or delay Martin from contacting the police. Finally, our decision in 

Edmonds expressly overruled Moreland v. Commonwealth, 322 S.W.3d 66 (Ky. 

2010). Id. at 319. Therefore, under Edmonds, threats to kill a victim qualify as 

intimidating a participant in the legal process. Id. at 318. Martin testified that 

Johnson threatened to kill her as he was leaving her apartment. It was not 

unreasonable for the jury to find guilt for intimidating a participant in the legal 

process related to Martin under the evidence as a whole. 

III. Conclusion

For the aforementioned reasons, we affirm Johnson’s convictions save for 

the complicity to first-degree robbery conviction related to Latasha Martin. We 

remand to Jefferson Circuit Court to amend the judgment and sentence 

accordingly. We additionally note, although Johnson has not argued it on 

appeal, that because he was convicted of first-degree robbery and fourth-degree 

assault against Cheryl Martin from the December 26, 2019, incident, that the 

latter charge is a lesser-included offense to the former. Mack, 136 S.W.3d at 

439-40. This a double jeopardy violation which requires vacatur of the lesser 

offense. Sevier v. Commonwealth, 434 S.W.3d 443, 453 (Ky. 2014). The record 

shows the jury found him guilty of both counts but we cannot find a 
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concomitant instruction for fourth-degree assault in the penalty phase 

instructions to the jury. Nonetheless, the trial court sentenced him to twelve 

months in prison for that count, to be served concurrently with the rest.

Because there was a conviction and sentence for both the first-degree robbery 

and fourth-degree assault against Cheryl Martin on December 26, 2019, we 

vacate that fourth-degree assault conviction. The trial court upon remand is 

instructed to amend its judgment and sentence accordingly. 

All sitting. VanMeter, C.J.; Bisig, Keller, Lambert, and Nickell, JJ., 

concur. Thompson, J., concurs in result only. 

COUNSEL FOR APPELLANT:

Christopher B. Thurman

Assistant Appellant Advocate

Lousiville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Jeffrey Allan Cross

Assistant Solicitor General