Kelly v. Commonwealth
| Decision Date | 20 October 2022 |
| Docket Number | 2021-SC-334-MR |
| Citation | 655 S.W.3d 154 |
| Parties | Mark Eugene KELLY, Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Erin Hoffman Yang, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Joseph A. Beckett, Assistant Attorney General.
Mark Eugene Kelly appeals as a matter of right1 from the Marion Circuit Court judgment sentencing him to twenty-years’ imprisonment for his convictions of unlawful imprisonment first-degree (three counts), wanton endangerment first-degree (three counts), and criminal trespass first-degree. On appeal Kelly raises four claims of error. Having reviewed the record and the arguments of counsel, we affirm the trial court's judgment in all respects.
On the evening of August 21, 2020, either because of an acute mental health emergency or as a result of methamphetamine use, Kelly became increasingly paranoid that he was being surveilled by persons unknown. Kelly first locked himself in his own bedroom, then later climbed through his window to find shelter elsewhere, taking with him his cell phone, his fiancée's cell phone, and a gun. Kelly wandered through the night in the area around his home, and on the morning of August 22 he came to the home of Melissa Mattingly. Kelly attempted to enter the home but was unsuccessful. Mattingly was not home at the time but was alerted by her home security system of Kelly's presence. Mattingly contacted law enforcement.
After his unsuccessful attempt to enter the Mattingly home, Kelly found his way to the home of Terry Lee, who was sitting on his front porch with his 11-year-old granddaughter, S.K. Kelly approached the two, gun in hand, and told them he wanted to contact the FBI or CIA and asked whether anybody was inside the Lee home. Terry answered in the negative, but Kelly proceeded to enter the home and ordered Terry and S.K. to go inside with him. Terry testified he felt he had no choice but to comply given Kelly's erratic behavior and possession of the gun.
Once in the home, Kelly locked the doors and took Terry's and S.K.’s cell phones. When S.K. asked if she could leave to check on her younger sister, Kelly told her she could not. After a few minutes, Jon Peter, Terry's son and S.K.’s uncle, came to check on S.K. Jon Peter knocked on the door and was met by Terry who attempted to warn him. However, when Kelly noticed Jon Peter at the door, he pointed his gun at Jon Peter and ordered him inside the home. As Kelly pointed his gun at Jon Peter, S.K. came to Jon Peter's side and Jon Peter pulled S.K. close to him to shield her. Eventually, Kelly told Jon Peter to put his hands behind his head and to sit on the floor.
Roughly five minutes later, Blake Blandford, S.K.’s father, arrived at the Lee home and knocked on the door. This time, Blandford saw Kelly, retreated from the front porch, reached for his pistol, and called for Kelly to let S.K. go. During this moment, S.K. ran out the front door to her father. Blandford took S.K. home, left her with his father, S.K.’s other grandfather, and told them to call law enforcement. Officers arrived at the Lee household in short order, having already been in the neighborhood looking for the perpetrator of the attempted break-in at the Mattingly home.
Officers eventually made contact with Kelly and asked him to let Terry and Jon Peter go. Kelly refused. After this initial interaction, Kelly became more frantic, waving around the gun with Terry and Jon Peter still in the room with him. Ultimately, Kentucky State Police troopers were able to convince Kelly to relinquish his weapon and exit the home. No one was physically injured during the incident.
Kelly was indicted on one count of first-degree burglary, three counts of first-degree unlawful imprisonment, and three counts of first-degree wanton endangerment. After a three-day jury trial, Kelly was convicted of criminal trespass (in this case, a lesser-included offense of first-degree burglary), three counts of first-degree unlawful imprisonment, and three counts of first-degree wanton endangerment. The jury recommended a total sentence of imprisonment of twenty years and the trial court followed the recommendation of the jury. Kelly now appeals from that judgment.
Kelly presents four arguments. First, he contends the trial court erred in denying his motion for a directed verdict on the counts relating to Terry and S.K. Second, he argues that his convictions for first-degree wanton endangerment and first-degree unlawful imprisonment violate the prohibition on double jeopardy. Third, Kelly claims the trial court improperly allowed evidence of a prior incident of unlawful imprisonment. Finally, he contends that statements made by the Commonwealth during sentencing amount to prosecutorial misconduct. We address each argument in turn.
Kelly first argues that the trial court erred in denying his motion for directed verdict on the charges relating to Terry and S.K. as the evidence presented was insufficient to establish first-degree wanton endangerment and first-degree unlawful imprisonment as to those victims. We hold the trial court did not err.
Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky. 1991). Ultimately, "[s]o long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant's motion for directed verdict should be denied." Taylor v. Commonwealth , 617 S.W.3d 321, 324 (Ky. 2020).
Kelly's challenge involves his convictions for first-degree wanton endangerment and first-degree unlawful imprisonment as to Terry and S.K. Kelly does not challenge his convictions as they relate to Jon Peter on these grounds. Because a different analysis is required for the different offenses, we address each in turn, beginning with Kelly's wanton endangerment convictions.
To be found guilty of first-degree wanton endangerment, a person must "under circumstances manifesting extreme indifference to the value of human life, [ ] wantonly engage[ ] in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 2 508.060(1). Kelly frames his argument around testimony that he never pointed his gun at Terry or S.K.—only Jon Peter—and asserts the Commonwealth could not have established Kelly created a "substantial danger of death or serious physical injury" as to either of those victims.
In support, Kelly points the court to Swan v. Commonwealth , 384 S.W.3d 77 (Ky. 2012). In that case, Marcus Swan and D'Andre Owens entered the home of Brandon Lumpkins where he and some of his family and friends were gathered. Swan entered the home masked and gloved, armed with guns, and ordered everyone within sight into a single room. With everyone gathered, the assailants fired several shots, some at individuals, others at walls or the ceiling. Unbeknownst to the assailants, Lumpkins’ mother was hidden under the bed in a back bedroom.
Swan and Owens were convicted of a number of charges, including six counts of first-degree wanton endangerment. On appeal, Owens argued that he was entitled to a directed verdict as to Lumpkins’ mother, the only victim not present in the living room. We agreed, stating "[t]he offense alleged to have been committed against her does not fit clearly with the quintessential examples of first-degree wanton endangerment." 384 S.W.3d at 103. Importantly, we noted the facts that Ms. Lumpkins was in a separate room, that no shot was ever fired at the room, and that during a brief moment when she peeked out of the room, she was unnoticed and no gun was ever pointed at her. Id. at 103-04. We also noted that even though Swan and possibly Owens entered the room while armed, "[m]erely being in the presence of guns, even when wielded by persons who are intent on harming and terrorizing, is not sufficient by itself to create a wanton-endangerment crime." Id. at 104. Accordingly, we found the trial court should have granted a directed verdict on the first-degree wanton endangerment charge as related to Ms. Lumpkins.
Notwithstanding our decision in Swan , the first-degree wanton endangerment convictions as to both S.K. and Terry are fully merited. As to S.K., we have long held that pointing a gun at another person supports a wanton endangerment charge. See Commonwealth v. Clemons , 734 S.W.2d 459, 461 (Ky. 1987) (); Thomas v. Commonwealth , 567 S.W.2d 299, 301 (Ky. 1978) (), overruled on other grounds by Ray v. Commonwealth , 611 S.W.3d 250 (Ky. 2020) ; Key v. Commonwealth , 840 S.W.2d 827, 829 (Ky. App. 1992) ().
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...that it 'produces an emotional response that inflames the passions of the triers of fact or is used for an improper purpose.'" Kelly, 655 S.W.3d at 165 (quoting Robert G. Lawson, The Kentucky Evidence Handbook, § 2.25[3][d], at 135 (4th ed. 2003)). Furthermore, such evidence "is, of course,......