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RENDERED: gpPTqiJIl|
2019-SC-0318-MR
LESLIE LEE PARSON APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE KIMBERLY N. BUNNELL, JUDGE
NO. 16-CR-001095
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Leslie Lee Parson was convicted following a jury trial of murder and
subsequently entered a guilty plea to being a convicted felon in possession of a
handgun. He was sentenced to thirty years’ imprisonment and now appeals as
a matter of right. Ky. Const. § 110(2)(b). Prior to trial, Parson claimed
immunity from prosecution pursuant to KRS1 503.085, which provides
criminal and civil immunity for the use of permitted force. However, following a
hearing on Parson’s motion, the trial court found probable cause existed to
conclude he used unlawful deadly physical force. At trial, Parson’s motion for
1 Kentucky Revised Statutes.
1
a directed verdict—based on his assertion the Commonwealth failed to prove he
was not privileged to act in self-defense—was denied. He now alleges these two
rulings were erroneous, as was the trial court’s denial of his motion to exclude
certain evidence, and contends he is entitled to reversal. For the reasons
which follow, we affirm.
A. FACTUAL AND PROCEDURAL SUMMARY
On May 28, 2016, Parson and three friends decided to go to Saddle Ridge
Bar near the University of Kentucky campus. That same evening, Jacob Skyler
Ray, his girlfriend, and two other friends also went to Saddle Ridge Bar to meet
several associates. At some point during the evening, Parson and one of Ray’s
friends got into an altercation inside the bar. Racial tensions grew and verbal
jabs were thrown. At the end of the night, around 2:30 a.m., following another
verbal altercation, Parson and his companions left the bar. On the way out,
Parson bumped into another patron who followed him outside demanding an
apology for the “disrespect.” Parson apologized but the other man struck him
anyway. A brawl then broke out in the parking lot.
Hearing of the fight, Ray grabbed a beer bottle and headed to the parking
lot. In a frantic scene caught on at least two cell phone videos, Ray can be
seen entering the fracas and striking someone over the head with the bottle.
Almost immediately, a single gunshot rang out, and Ray went down. He had
been shot in the back of the head and would succumb to complications
stemming from that injury some four months later. Parson and his friends
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quickly vacated the lot. During their drive, Parson told his friends he had fired
the shot.
Following interviews at the scene, police were able to identify the license
plate number of the vehicle Parson had been in and quickly traced it to a
residence in Frankfort, Kentucky. Detectives went to the residence and made
contact with the owner of the vehicle, Ashley Whitis, who informed them she
had allowed Parson, her boyfriend, to use the car the previous evening. Parson
was at the apartment and told police he had been home all night. After being
confronted with a photo of himself standing outside Saddle Ridge Bar, Parson
admitted he had been there but had not been allowed inside because of his
attire. He stated he had gone to the bar alone and denied being present at the
time of the shooting. Parson agreed to undergo a complete interview at the
police station and left the apartment. He never voluntarily appeared for an
interview prior to his arrest.
Following additional investigation, an arrest warrant was issued for
Parson charging him with assault. The warrant was served on June 8, 2016.
After his arrest, Parson provided a statement in which he claimed to be the
victim. He stated there had been a verbal altercation inside the bar and, after
being asked to leave, he complied and walked to the parking lot. He claimed a
group of people followed him, hurling racial epithets and demanding an
apology. After offering the requested apology, he reported being struck and
knocked to the ground. When he got up, he stated he shot one round from the
pistol he had retrieved from his vehicle. He claimed to have shot behind him
3
without looking as he ran from the fight, with no intent to strike anyone, and
without knowing his round had found its mark.
When Ray subsequently died, a superseding indictment was rendered by
the Fayette County Grand Jury, charging Parson with murder and possession
of a handgun by a convicted felon. On March 3, 2017, Parson moved to
dismiss the murder charge on grounds he was immune from prosecution
pursuant to KRS 503.085 because he was acting in justifiable self-defense
when he discharged his weapon. The statute provides immunity to persons
who use force in self-defense or defense of others, unless there is probable
cause to believe the use of force was unlawful.
The trial court conducted a hearing on Parson’s motion on March 21,
2017. Parson argued the facts and circumstances of the case did not establish
probable cause to show he was not fully justified in defending himself, nor that
his use of force was unlawful. The trial court denied the motion, concluding
the totality of the circumstances revealed conflicting factual evidence sufficient
to find the Commonwealth had satisfied its burden of showing probable cause
Parson’s use of force was unlawful and denied the motion to dismiss.
A three-day trial on the murder charge commenced on March 25, 2019.2
Surveillance videos from inside the bar, along with two cellphone videos of the
parking lot altercation were played for the jury. In addition, numerous
2 The charge of possession of a handgun by a convicted felon was severed for
trial purposes.
4
witnesses testified regarding their recollections of the evening leading up to and
including the fateful moment Ray was shot.
Keyon Patterson, a friend who had accompanied Parson to the bar,
opined he and two other friends were “winning” the parking lot fight prior to
the shot being fired because they had knocked one of the main instigators to
the ground and were kicking him. Immediately prior to the shot, he recalled
one of the two friends being struck by a bottle.
Kylie Price, Ray’s fiancee, testified Ray entered the melee to protect his
friend who was on the ground and being kicked in the head. She said Ray
struck one of the kicking men in the head with a bottle he had grabbed upon
exiting the bar. Immediately thereafter, she recalled a tall and slender black
male grabbed Ray and shot him in the back of the head.
Whitis confirmed Parson used her vehicle on the night of the shooting,
identified the pistol used in Ray’s shooting as belonging to Parson, and was
asked to read several text messages exchanged between herself and Parson on
the night of the shooting. Parson objected to the latter, claiming the text
messages were irrelevant and more prejudicial than probative, but the trial
court overruled the objection and permitted the Commonwealth to proceed in
eliciting the testimony.3
3 Parson’s pre-trial motion in limine to exclude the text messages on the same
grounds had likewise been denied.
5
The Commonwealth also introduced testimony of the physician who
performed Ray’s autopsy, along with her report, indicating the bullet had
entered the rear of his skull and had travelled at a downward slope, slightly left
to right. Additionally, Detective Bill Brislin detailed the results of his
investigation, which contradicted Parson’s account of running away from the
fight when he fired his weapon and revealed several instances of Parson’s
untruthfulness in statements provided to police.
At the close of the Commonwealth’s case, Parson moved for a directed
verdict. He asserted the Commonwealth had failed to meet its burden of
proving murder and “all the evidence, even some of the Commonwealth’s
witnesses,” showed he was acting in self-defense. In response, the
Commonwealth argued Parson shot Ray, ultimately causing his death, and he
was not privileged to do so. The Commonwealth noted the only indication of
self-defense had arisen from Parson’s own self-serving statements to police
following his arrest. The trial court, in viewing the evidence in the light most
favorable to the Commonwealth, concluded a factual disagreement sufficient to
present the case to the jury existed and the Commonwealth had met its burden
of going forward. Parson’s renewed motion for directed verdict at the close of
all of the evidence was also denied.
The jury found Parson guilty of murder and recommended a sentence of
twenty-five years’ imprisonment. Following the verdict, Parson entered a guilty
plea to the handgun possession charge and received a recommended sentence
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of five years. The sentences were ordered to run consecutively for a total of
thirty years’ imprisonment. This appeal followed.
B. LEGAL ANALYSIS
Parson raises three allegations of error in seeking reversal of his murder
conviction. He asserts the trial court erred in denying his pre-trial motion for
dismissal on grounds of self-defense immunity under KRS 503.085, denying
his motions for a directed verdict, and in permitting Whitis to read the
challenged text messages to his substantial prejudice. We shall address his
contentions in reverse order.
First, Parson argues the Commonwealth introduced the challenged text
messages—which demonstrated only that he had been untruthful to his
perturbed girlfriend—for the sole purpose of casting him as a habitual liar.4 He
contends the text messages sent between himself and Whitis on the night of
the murder were irrelevant because they did not tend to make the existence of
any consequential fact more or less probable in relation to the murder charge
and were otherwise more prejudicial than probative. Further, Parson argues
for the first time on appeal that the Commonwealth’s introduction of the text
messages was nothing more than a thinly-veiled attempt to present evidence of
other bad acts to the jury, constituting a violation of KRE5 404b. Based on the
4 Although the Commonwealth’s stated purpose for introducing the text
messages was to show Parson’s state of mind and his propensity for untruthfulness,
no such argument was put to the jury and Parson does not point us to where the
Commonwealth again mentioned the challenged messages.
5 Kentucky Rules of Evidence.
7
foregoing, he asserts the messages should have been excluded. In response,
the Commonwealth concedes the text messages were admitted in error, but
argues the error was harmless due to the substantial evidence supportive of
the jury’s verdict. We agree with the Commonwealth.
Evidence demonstrated Whitis sent the initial text message to Parson at
11:39 p.m. on May 28, 2016. Her text chastised him for leaving her alone and
bored, expressed her anger for his not arriving at home when promised, and
demanded respect. Approximately one hour later, Parson texted Whitis
indicating he was on his way home, Whitis responded by asking from where he
was coming, and he replied he was at his sister’s house. Other than
confirming her belief Parson had been at his sister’s house, the Commonwealth
posed no further questions to Whitis regarding the text messages.
“[N]o error or defect in any ruling ... is ground for granting a new trial or
for setting aside a verdict. . . unless it appears to the court that the denial of
such relief would be inconsistent with substantial justice.” Anderson v.
Commonwealth, 281 S.W.3d 761, 766 (Ky. 2009) (quoting RCr6 9.24). “A non-
constitutional evidentiary error may be deemed harmless ... if the reviewing
court can say with fair assurance that the judgment was not substantially
swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89
(Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90
L.Ed. 1557 (1946)). However, “[t]he inquiry cannot be merely whether there
6 Kentucky Rules of Criminal Procedure.
8
was enough to support the result, apart from the phase affected by the error.
It is rather, even so, whether the error itself had substantial influence. If so, or
if one is left in grave doubt, the conviction cannot stand.” Crossland v.
Commonwealth, 291 S.W.3d 223, 233 (Ky. 2009) (quoting Kotteakos, 328 U.S.
at 765, 66 S.Ct. at 1248).
Here, though the jury was read brief text messages in which Parson was
untruthful with his upset girlfriend regarding his whereabouts, no further
testimony or argument concerning the incident was forthcoming. Whitis’s
fleeting recitation of the text messages lasted less than one minute and was
practically inconsequential compared to the magnitude of evidence offered over
the three days of trial. Even were the admission of the challenged text
messages error, the amount of evidence presented against Parson—including
witness testimony, cellphone and surveillance videos, and his own plainly self-
serving and demonstrably false statements to investigators—fairly assures us
the jury was not substantially swayed, nor the outcome affected, by their
admission. In short, we cannot say that but for this testimony the jury would
have acquitted Parson of Ray’s murder. See Hilton v. Commonwealth, 539
S.W.3d 1, 19 (Ky. 2018). Thus, any error was harmless.
Second, asserting the Commonwealth failed to meet its burden of
disproving his self-protection defense, Parson argues the trial court erred in
denying his motions for a directed verdict. We disagree.
In ruling on a motion for directed verdict, the trial court takes as true all
evidence favoring the Commonwealth and draws all reasonable inferences from
9
such evidence. It is not at liberty to determine the weight or credibility to be
given to the evidence, that function being reserved for the jury. Commonwealth
v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “If the evidence is sufficient to
induce a reasonable juror to believe beyond a reasonable doubt that the
defendant is guilty, a directed verdict should not be given.” Id. On review, we
are tasked with determining whether, “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.” Lamb v. Commonwealth, 510
S.W.3d 316, 325 (Ky. 2017). Convictions must be based on more than a mere
“scintilla of evidence,” Benham, 816 S.W.2d at 187-88, because “there must be
evidence of substance.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
The trial court utilized the appropriate standard in ruling on Parson’s
motions for directed verdict and analyzed the evidence in the light most
favorable to the Commonwealth. In so doing, the trial court noted sufficient
factual issues existed and agreed with the Commonwealth the jury must
determine the credibility of the witnesses and the mental state involved when
the shooting occurred. Parson’s argument relies solely on his perception of the
evidence and he faults the trial court for not ascribing to his view he was acting
in self-defense when he shot Ray and no reasonable juror could conclude
otherwise.
As correctly noted by the Commonwealth, “[r]arely is a defendant relying
upon self-defense entitled to a directed verdict.” West v. Commonwealth, 780
S.W.2d 600, 601 (Ky. 1989). “If the testimony relied on to establish self-
10
defense is contradicted in any way or if there is evidence of any fact or
circumstance from which a jury could reasonably conclude that some element
of self-defense was lacking, a directed verdict should not be given.” Wheeler v.
Commonwealth, 472 S.W.2d 254, 256 (Ky. 1971).
Here, Parson fails to appreciate the sole evidence regarding his position
arises from his own self-serving statement to police made nine days after the
shooting and following his arrest. Contrary to his contention, no other
testimony or evidence tended to establish he acted in his own defense when he
shot Ray in the back of the head. Taken in a light most favorable to the
Commonwealth, substantial evidence was presented to support Parson’s
conviction and it was not clearly unreasonable for a jury to find guilt. Thus,
the trial court properly denied the motions for directed verdict.
Parson’s final argument on appeal is that the trial court erred in denying
his pretrial motion for immunity. As previously stated, Parson moved the court
to grant him criminal immunity based on the provisions of KRS 503.085. The
court denied his motion. Parson argues this was error and asks for reversal of
his conviction.
When the defendant “has been tried and convicted by a properly
instructed jury in a trial with no reversible error,” this Court has
held that questions raising the propriety of the trial court’s
immunity determination become “purely academic.” Under such
circumstances, the defendant’s “self-defense claim has been
thoroughly examined by both the trial judge under the directed-
verdict standard and the jury under the court’s instructions and
his entitlement to self-defense has been rejected.” In such cases,
when a jury has already convicted the defendant—and, thus, found
that his use of physical force in fact was unlawful beyond a
reasonable doubt—and that conviction has not been shown to be
flawed, the appellate court will not revisit whether there was
11
probable cause to believe that a defendant’s use of force was
unlawful to allow prosecution under KRS 503.085.
Ragland v. Commonwealth, 476 S.W.3d 236, 246 (Ky. 2015) (citations and
footnote omitted). Based on this precedent, and having found no reversible
error in Parson’s conviction, we are without authority to review this issue.
C. CONCLUSION
For the foregoing reasons, the judgment and sentence of the Fayette
Circuit Court is AFFIRMED.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Roy Alyette Durham, II
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Stephanie Lynne McKeehan
Assistant Attorney General
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