# IMPORTANT NOTICE NOT·To BE PUBLISHED OPINION

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### THIS OPINIONIS DESIGNATED "NOTTOBE PUBLISHED." PURSUANT TOTHERULES OF CIVILPROCEDURE PROMULGATEDBY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOT TO BE PUBLISHED AND SHALLNOT BE CITED ORUSED AS BINDING PRECEDENT IN ANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,**~** 

### UNPUBLISHED KENTUCKYAPPELLATEDECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATIONBY THE COURT IFTHEREIS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS TBEISSUE BEFORETHE COURT. OPINIONS CITED FORCONSIDERATION
·BY THE COURT SHALLBE SET OUTAS AN UNPUBLISHED

DECISIONIN THEFILED DOCUMENTAND A COPY OFTHE ENTIRE DECISION SHALLBE TENDERED ALONG WITHTHE DOCUMENT TOTHE COURT AND ALLPARTIES TO THE ,· ACTION.RENDERED: DECEMBER 14, 2017 NOT TO BE PUBLISHED

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# nf**~tnfutku** 2016-SC-000133-MR

· TERRY O'BANNON



## v. ON APPEAL FROM MUHLENBERG CIRCUIT COURT**HO~ORABLE** BRIAN WIGGINS, JUDGE NOS. 15-CR-00156AND NOS. 15-CR-00234
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT AFFIRMING APPELLANT

APPELLEE

A circuit courtjury convictedTerry O'Barinon1 offirst-degree assault, tampering with physical evidence, and being a first-degree persistent felony offender, recommending a sentence oftwenty years, which the trial court accepted. Terry appeals the resultingjudgment as a matter ofright2, raising three issues for review: the trial court's denial ofTerry's motions for directed verdict on his charges of (1) assault, (2) tampering with physical evidence, and

.(3) persistent felony offender. For the reasons stated in this opinion, we find no

error in the trial court's rulings and affirm thejudgment.

1 We will refer to Terry O'Bannon as "Terry," because Terry's son, Tyson O'Bannon, is also mentioned severaltimes in this opinion. · 2 Ky. Const. § 110(2)(b).I. FACTUAL AND PROCEDURAL BACKGROUND., Terry O'Bannon, the defendant in this case, Tyson O'Bannon, Terry's son, and Whitney Smith, Tyson's girlfriend, stopped to get gas. Tyson, the driver ofthe car, pulled up to one ofthe pumps. As Terry got out ofthe car to pump the gas, he realized Tyson pulled up to the pump on the wrong side of the car, so he toldTyson to turn the car around. As Tyson turned the car around, HerbertYates pulled in at the same pump. From this point forward, the facts ofthis case are in dispute. What can be conclusively ascertained from the record is that a verbal exchange immediately ensued betweenYates andTerry. Terry directed Tyson to drive to a different gas pump, and a further verbal exchange occurred as Yates and Terry pumped gas into their vehicle. Yates reached inside his car for**some~ing** and Terry and Tyson believed he reached for a firearm. Yates admitted that he owns a firearm, that he did not have itwith him on that occasion. After filling their car, Terry and Tyson then drove away. As they drove away, Yates called 911 andreported Terry and Tyson for reckless driving. Terry and Tyson returned to the gas station moments later, claiming that they wanted to make sure they had paid for the gas. WhenTerry stepped out of the vehicle, another verbal confrontation withYates occurred, eventually turning into a physical altercation. Numerous witnesses gave conflicting · testimony at trial about the altercation, includingwho was the initial aggressor and what happened during the fight. At some point during the fight, Terry
2produced a knife and cutYate's arm, causing a seven to eight-inch laceration to the bone, cutting several muscles and severing the ulnar nerve. As Terry and Tyson drove**a~ay,** Terry threw his bloody shirt out ofthe car. Terry admitted at trialthat he knew police were looking for him after leaving the gas-station melee, and he turned himselfin four days later. Eleven days after the incident, Whitney Smith, Tyson's girlfriend, gave a statementto the police in which she stated thatTerty threw a knife out the car window, but at trial she stated thatTerry threw his bloody shirt out ofthe window and she assumed the knife was·inside the shirt. When the responding officer initially arrived at the scene ofthe crime, he failed to locate the knife at the gas station. After Smith gave her statement to the police, officers again searched unsuccessfully for the knife at the gas station. On cross-examination at trial, Terry stated thatTyson had purchased a knife for him that was very similar to replace one thathe had "lost." At the close ofthe Commonwealth's case-in-chief, the trial court denied Terry's motion for a directed verdict on the assault charge. At the clo&e of

·Terry's case-in-chief, Terry made a motion for directed verdict on the

tampering-with-physical-evidence charge, stemming from the accusation that Terry had attempted to dispose ofthe knife used to cutYates by throwing it out the window. The trial court denied that motion. Regarding the persistent felony offender charge, Terry did not move for**di~ected** verdict at the close ofthe Commonwealth's case or his own case-inchiefin the penalty phase ofthe trial. While the trial courtwas reading the 3persistent felony offender sentencing instructions to thejury, the Commonwealth askedto approach the bench. The Commonwealth then moved for leave ofcourt to reopen the evidence because the Commonwealth recognized that it had failed to establish when Terry had been placed on parole
or probation, an element necessary to prove the charge ofpersistent felony offender. Terry objected to allowing the Commonwealth to reopen the proof, but the trial court overruled the objection and allowed the Commonwealth to recall its witness to establish**~hen** Terry was placed on parole or probation. Terry then moved for directed verdict on the persistent felony offender charge, which the trial court denied. · Thejury found Terry guilty offirst-degree assault, tampering with physical evidence, and ofbeing a first-degree persistent felony offender. The jury recommended a**twenty~year** sentence, which the trial court accepted and entered thejudgment accordingly. Terry then appealed to this Court. II. ANALYSIS. As a preliminary matter, Terry sufficiently preserved all three issues before this Court. Because all three issues involve the alleged failure ofthe trial court to grant a directed verdict, "On appellate review, the test ofa directed verdict is, ifunder the evidence as a whole, itwould be clearlyunreasonable for
a jury to find guilt, only thenthe defendant is entitled to a directed verdict of acquittal."3 So we shall only overturn the trial court's denial ofTerry's motions

'- 3 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977)). · 4for directed verdict ifit was clearlyunreasonable for thejury to find Terry guilty ofhis charges. 

### A. Assault Charge. Terry argues that, based on the evidence adduced at trial, it was clearly unreasonable for thejuryto find hirri guilty offirst-degree assault because the

I jury should have found that he was privileged to act in self-protection and in the protection ofothers. KRS 503.050(1) and (2), the statute establishing the self-protection defense, allows for the use ofphysical or deadly force by a defendantupon

.another person when the defendant believes that such**fore~** is necessary to

protect himselfagainst the use or·imminentuse ofunlawful physical, or deadly, force by the other person. And KRS 503.070(1-2), the statute establishing the third-party protector defense, allows for the use ofphysical and even deadly force by a defendantupon another person ifthe defendant believes that such force is necessary to protect a third person against the us.e
or imminentuse ofunlawful physical or deadly force. But KRS 503.060(3) prevents a defendant from invoking the self-protection defense ifthe defendant
was the initial physical aggressor, unless: (1) the initial aggressor usednondeadly physical force and was responded to with deadly force; or (2) the initial aggressor withdraws from the encounter and effectively communicates to the other person his intent to do so, but the other individual continues or threatens the use ofunlawful physical force.

5In this case, the trial court instructed thejury on first-degree assault, second-degree assault, fourth-degree assault,**self-prote~tion,** protection of another, and initial aggressor. Numerous witnesses provided testimony supporting the finding ofthejurythat the self-protection and protection-ofothers defenses did not apply tojustifyTerry's actions. Although other witnesses provided testimony thatwould have supported a finding thatTercy acted in self-defense or for the protection ofanother, this**~foes** not make the findings by thejuryunreasonable. Summarily, no matter thejury's verdictunder these instructions, we would be constrained to recognize thejury'sverdictas reasonable. This case is
a classic example ofthe reason our legal system entrusts thejurywith the**~** important task ofdetermining a defendant's guilt or innocence. Tqis case involves conflicting accounts ofthe day's events from the point ofview ofthe defendant, victim, and numerous otherwitnesses. Many oftheaccounts differ, sometimes dramatically, from each other. To put this case in perspective: the defendant, the victim, and six otherwitnesses provided testimony as to the ' day's events, ranging from accounts thatTerry was the initial aggressor, to Yates being the initial aggressor, to Tysonjoiningin the fight and actually acting as the initial aggressor, to Terry believing.Yates possessed a firearm even though it**app~ars** Yates did not, to Terry and Tyson throwing several punches before Yates even reacted, to bothYates and Terry egging each other on in the fight, and the differing accounts continue.

6We mustultimately conclude from the evidence that thejury did not act · unreasonably when it found Terry guilty offirst-degree assault. Thejury heard testimony from witnesses stating thatTerry was the initial aggressor and escalated the fight by using a knife. Thejury also heard testimony from Terry and Tyson that they believed Yates had a gun; however, thejury simply did not believe Terry and Tyson, as Terry's conviction reflects. It is thejury's prerogative to act as the ultimate fact-finder and determ:lnant ofa witness's credibility4, and because thejury's conclusion is adequately factually supported in this record, we cannot deem it to be unreasonable. Based on all the evidence adduced at trial, thejury's rejection ofthe self-protection and protection-of-others defenses was notunreasonable. So we.affirm the trial court's decision to denyTerry's motion for directed verdict regarding his assault charge. 

### B. Tamperingwith PhysicalEvidence Charge. Terry argues that thejuryunreasonably convicted him oftampering with physical evidence, specifically, that he discarded the knife he used to cutYates by throwing it out the carwindow. This charge stemmed from Whitney Smith's statement to police that she
sawTerry throw the knife out the window as their carwas leaving the gas station. But at trial, Smith stated that she actually sawTerry throw his bloody

4 Potts v. Commonwealth, 172 S.W.3d 349, 349-51 (Ky. 2005). 7shirt out the window and simply assumed that the knife was inside. As stated, two separate investigations by officers failed to locate the knife. At trial, the defense introduced as evidence whatTerry**clai~ed** to be the actual knife he used to cutYates. Terry testified that he kept the knife in his

. 

# . pants pocket after the altercation. But on cross examination, Terry stated that

. . Tyson p.ad bought a knife for him that was very similar to the one that he had "lost." It appears that the only proofthat the knife introduced at trial was the
same one as the one used to cutYates isTerry's testimony. Based-on the

. evidence adduced at trial, thejuryfound Terry guilty oftampering with

evidence by throwing the knife from the vehicle.



## . ' KRS 524.100 provides that a person is guilty oftampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he either: (1) destroys, mutilates, conceals, removes, or alters physical evidence which he believes is about to be produced or used.in the official proceedingwith intent to impair its verity or availability in the official proceeding; or (2) fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered. Our decision in Mullins v. Commonwealth 5 provides guidance on this issue. In Mullins, we stated, "The Commonwealth cannot bootstrap a tampering charge onto another charge simply because a woefully inadequate effort to

s 350 S.W.3d 434 (Ky. 2011). 8locate the evidence was made by the police."6 Additionally, we stated that a defendant walking away from the scene ofthe crime in**pos~ession** ofevidence does not necessarily lead to a violation; in fact, charging someone with a violation oftampering with physical evidence "would be an impermissible 'piling on"' ofcharges.7 However, we went on to say, "This is not to say.that failure to locate evidence means that a defendant cannotbe charged and convicted oftampering when there is evidence ofan active attempt by the defendant that demonstrated intent to impair·the availability ofthe evidence."8 Based on the evidence adduced at trial, and our decisions in Mullins and Nourse, we cannot say itwas unreasonable for thejury to find thatTerry tampered with evidence by throwing the knife .used to ctltYates out the window. As Mullins states, even though officers were unable to find the knife that**T~rry** threw out the window, the officers' searches were not claimed to be inadequate, and other evidence exists to· support a finding thatTerry did throw the knife out the window in an attempt to "impairthe availability" ofthe knife. Whitney Smith's original statement to the police thatTerry threw the knife out the window, coupled with Terry admitting on cross examination thatTysonhad purchased him

# aknife that was very similar to replace one that he had "lost," and the fact thatTerry's own testimony was the only proofTerry**~sserted,** and
now asserts, to substantiate his claim that the knife introduced at trial is the

6 Id. 

## at 444. 1 Id. at 443. a Id. (citing Commonwealth v. Nourse, 177 S.W.3d 691 (Ky. 2005) (throwing bullet casings down a drain)). 9same knife he used to cutYates, all could reasonably convince a jury thatTerry really did throw the knife out the window that day, even though police were unable to locate 

### it. As such, thejury's findings were not unreasonable, and we affirm the trial court's decision to deny Terry's motion for directed verdict on the tampering-witl?--physical-evidence charge. 

### C. Pe.rsistent FelonyOffender. Terry argues that the trial courterred by denying_his motion for directed verdict regarding the persistent felony offender charge. It appears thatTerry's argument here is actually two-fold: (1) the trial court abused its discretion by allowing the Commonwealth to reopen its case upon discovering that it had failed to establish when Terry had been placed on parole or probation, an

. essential element ofhis charge ofpersistent felony offender; and (2) the trial

court erred when it denied Terry's motion for directed verdict on the persistent felony offender charge after the Commonwealth's witness testified to establish when Terry was placed on parole or probation. During the Commonwealth's case-in-chiefduring the penalty phase, the Commonwealth called the circuit clerk as a witness to establish the elements of the persistent-felony-offender charge. The clerk testified thatTerry was convicted ofpossession ofa firearm by a convicted felon on October 2, 2009. But, the Commonwealth failed to ask the clerkwhen Terry was discharged from parole or probation on the 2009 conviction. This meant that the Commonwealth failed to prove the persistent-felony-offender element thatTerry "was discharged from· parole or probation from the sentence imposed on him
10pursuant to said priorconviction no more than five (5) years before·August 12, 2015." 9 After both sides had closed their cases in the penaltyphase, the trial courtread the sentencing instructions. As the trial court read the persistent felony offender sentencinginstructions to thejury, the Commonwealth apparently realized it had failed to ask the clerk when Terry was placed on probation or parole and asked the court to approach the bench. At**th~** bench,· the Commonwealth·moved to reopen the case because it had failed to establish when Terry**h~d** been placed on parole or probation, to which Terry objected. The trial court granted theCommonwealth's motion. Theclerkwas then recalled and testified thatTerry was released on supervised releas.e for three years, within the five-year time period prescribed by the persistent-felony-offender offense. Terry then·moved for directed verdict, which was denied by the trialcourt. Thejury found Terry guilty ofbeing a firstdegree persistent felony offender. Kentucky Rule ofCriminal Procedure (RCr) 9.42 prescribes the order of trial. Ofparticularrelevance in this case, RCr 9.42(e) states, "The parties**respecti~ely** may offer rebutting evidence, unless the court, for good reason in furtherance ofjustice, permits them to offer evidence-in-chief." We review

9 See KRS 532.080(3)(c). 11decisions by the trial court ofthis nature under an abuse ofdiscretion standard.10 In both Marshalland Haynes, we held that the trial court did not abuse "its broad discretionary power" by permitting the introduction ofevidence-inchief, after both sides had closed their cases, to establish that the previous crimes committed by the defendants were felonies.11 We termed the adjudication ofa persistent felony offender charge a "bifurcated" stage ofa defendant's criminal proceedings, separate from adjuc:lication ofthe underlying substantive criminal charge, like robbery.12 Terry relies on Davis v. Commonwealthl3 in support ofhis argument. In Davis, the trial court allowed the Commonwealth to reopen its case to provide previously unavailable testimony supporting a murder charge conviction during rebuttal and after the close ofall the evidence. Terry relies on our following statements in Davis: While a party should not normally be permitted to offer additional testimony after announcing the conclusion ofits evidence, and certainly should be precluded from introduction ofevidence-inchiefafter announcing that no re_buttal evidence will be presented, we cannot overlook the probative nature ofthe evidence so offered and its priorunavailability. Ifthe record demonstrated any bad faith on the part ofthe Commonwealth, we would not hesitate to· hold that the admission ofsuch evidence amounted to an abuse of the trial court's discretion. This not being the case, however, we

10 Marshall v. Commonwealth, 625 S.W.2d 581, 583 (Ky. 1981); Haynes.v. Commonwealth, 625 S.W.2d 575, 576 (Ky. 1981).
11 Marshall, 625 S.W.2d at 583; Haynes, 625 S.W.2d at 576. i2 Marshall, 625 S.W.2d at 583; Haynes, 625 S.W.2d at 576. 13 795 S.W.2d 942 (Ky. 1990). 12find no abuse ofthe .trial court's discretion in its application ofRCr 9.42(e). 14 We find that the situation in this case is more akin to our holdings in Marshalland Haynes than in Davis. Although our statements in Daviswould
seem to suggest a preclusion ofthe Commonwealth's evidence-in-chiefin this

.case, our statements were made in the context ofattemptingto admit evidencein-chiefduring rebuttal and after the close ofthe case for the purpose of obtaining a convictibn for intentional murder. In this case,just like in Marshall and Haynes, the trial court permitted the Commonwealth to reopen its case for the purpose ofpermitting evidence relating to a persistent-felony-offender charge, not the underlying substantive criminal charge ofassault. So because ofthe trial court's traditional broad discretion in this regard, and because of
our holdings in Marshalland Haynes, we find that no error occurred with respectto the trial court's decision to allow the Commonwealth to reopen its
case for the purpose ofproviding evidence-in-chiefas to when Terry had been placed on pifrole or probation. Terry's argument that the trial court erred when it denied his motion for directed verdict on this charge is supported by this same rationale. In addition, the-Commonwealth established all the necessary elements ofa first-degree persistent-felony-offender conviction. So the trial court did not errwhen it denied Terry's motion for a directed verdict because it was notunreasonable for thejuryto find Terry guilty ofbeing a persistent felony offender.

14 I<;l.. at 947. 13III. CONCLUSION. For the reasons stated above, we find no error in the trial court's rulings in this case and affirm thejudgment. All sitting. All concur.

COUNSEL FORAPPELLANT: Robert Chung-HuaYang Assistant Public Advocate
COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky Mark Barry AssistantAttorney General

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