Maurice Gasaway v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0031-MR

MAURICE GASAWAY APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 18-CR-00927

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Maurice Gasaway brings this appeal from August 30, 2019,

judgments of the Hardin Circuit Court upon jury verdicts finding Gasaway guilty

of possession of marijuana and possession of a controlled substance, heroin, and

sentencing him to thirty-days’ incarceration and to three-years’ imprisonment to be

served consecutively. We affirm.
 BACKGROUND

The facts underlying Gasaway’s arrest and subsequent indictment are

as follows. On the morning of August 30, 2018, Gasaway was working for his

employer, Knight’s Mechanical, located in Hardin County, Kentucky. Gasaway

and two other employees were working in the sheet metal shop at Knight’s

Mechanical. One of Gasaway’s co-workers, Austin McClanahan, was walking

across the shop when he noticed a plastic bag about the size of a fingernail on the

floor. Just as McClanahan picked up the plastic bag, his supervisor, Josh Bush,

walked up behind McClanahan. Bush instructed McClanahan to take the plastic

bag to Bush’s office. McClanahan complied, went into Bush’s office, and placed

the bag on Bush’s desk. Bush covered the small plastic bag with a sheet of paper.

Suspecting the plastic bag contained drugs, Bush called his supervisor. Bush’s

supervisor then contacted his supervisor, Jeremy Knight, and informed him of the

situation.

After lunch, Knight went to Bush’s office. Knight looked at the

plastic bag and then reviewed security video footage from that morning of the area

where the bag was found. Knight believed the video footage revealed that the

plastic bag fell from Gasaway’s pocket when he removed his cell phone. After

reviewing the video footage, Knight gave the plastic bag to another employee,

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Brian Tharpe. Tharpe contacted Detective Robert Dover of the Greater Hardin

County Narcotics Task Force.

The following day, Detective Dover came to Knight’s Mechanical.

Tharpe gave the plastic bag to Detective Dover, and he conducted a field test on

the substance. The substance tested positive for heroin. Tharpe then showed

Detective Dover the video footage from the previous morning. Detective Dover,

likewise, believed that the video depicted Gasaway dropping the plastic bag while

he was retrieving a cellphone from his pocket. Thereafter, Detective Dover and

two other police officers on the scene approached Gasaway. The officers

explained to Gasaway they were there because of the heroin. Gasaway was

handcuffed, given his Miranda rights, and escorted outside. Once outside,

Gasaway realized that two parole officers1 were also present and became

belligerent. Gasaway was then placed in the back of a police cruiser.

A search of Gasaway’s person did not yield anything illegal but the

police officers did discover a key fob in Gasaway’s pocket. The key fob unlocked

the truck Gasaway drove to work which was parked nearby in the company

parking lot. Detective Dover ran the license plate on the truck and discovered it

1
Maurice Gasaway was on parole as the result of a previous drug-related offense for trafficking
in a controlled substance, first degree, cocaine, and for possession of a handgun by a convicted
felon.

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was registered to a Michelle Gasaway at the same address as Gasaway. Gasaway

denied a request for consent to search the truck; nevertheless, a search ensued.

Detective Dover found a plastic bag that contained two separate

plastic bags of marijuana in the console of the truck. There was also a plastic bag

containing a pill with a “Superman” insignia printed on it. The pill was believed to

be ecstasy but was later tested and determined to be methamphetamine.

Additionally, Detective Dover discovered a few marijuana roaches in a cupholder

ashtray and marijuana shake around the ashtray. The search also yielded an object

known as a “Whizzanator,” which drug users frequently utilize to thwart drug

detection in urinalysis testing. Gasaway asked Detective Dover if he was going to

jail. Detective Dover responded in the affirmative and further explained that

Gasaway was facing charges for possession of methamphetamine, ecstasy, and

heroin. Gasaway responded, “I’m not worried about the weed or ecstasy, and you

damn sure didn’t find no three grams of heroin. And in Louisville, that’s just a

citation.” Commonwealth’s Brief at 5.

On September 20, 2018, Gasaway was indicted by a Hardin County

Grand Jury upon Possession of a Controlled Substance, First Degree, Heroin

(Kentucky Revised Statutes (KRS) 218A.1415), Possession of a Controlled

Substance, Second Degree, Schedule I Non-Narcotic, Ecstasy (KRS 218A.1416),

and Possession of Marijuana (KRS 218A.1422). By Supplemental Indictment

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dated March 28, 2019, Gasaway was also indicted upon one count of Possession of

a Controlled Substance, First Degree, Methamphetamine (KRS 218A.1415).2

Gasaway filed a motion to suppress the evidence seized from his

vehicle. The trial court conducted an evidentiary hearing, and by order entered

April 25, 2019, the trial court denied Gasaway’s motion to suppress. A jury trial

ensued. By Trial Verdict and Judgment entered May 14, 2019, the trial court

announced a hung jury as to the possession of heroin charge, not guilty upon the

possession of methamphetamine charge, and guilty upon the possession of

marijuana charge. The possession of methamphetamine charge was dismissed with

prejudice. However, the trial court did not sentence Gasaway upon the guilty

verdict for possession of marijuana at this time.

The Commonwealth elected to retry Gasaway upon the possession of

heroin charge. Following the retrial, the jury found Gasaway guilty upon the

possession of heroin charge. By Judgment and Order Imposing Sentence entered

August 30, 2019, Gasaway was sentenced to three-years’ imprisonment upon the

possession of heroin charge. By separate order, also entered August 30, 2019, the

trial court additionally sentenced Gasaway to thirty-days’ incarceration upon the

2
After laboratory testing revealed that the pill containing the “Superman” insignia was
methamphetamine rather than ecstasy, the Commonwealth of Kentucky made a motion to
dismiss the charge of possession of a controlled substance, second degree, schedule I non-
narcotic, ecstasy, which the trial court granted. Thereafter, a Supplemental Indictment was
returned charging Gasaway with possession of a controlled substance, first degree,
methamphetamine.

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possession of marijuana charge. The sentences were ordered to be served

consecutively. This appeal follows.

Gasaway raises four issues in this appeal. First, he contends the trial

court erred by denying his motion to suppress the evidence seized from his vehicle

after his arrest in violation of the Fourth Amendment to the United States

Constitution and Section Ten of the Kentucky Constitution. More particularly,

Gasaway asserts that officers lacked probable cause to search his vehicle and that

his status as a parolee did not subject him to unlimited warrantless searches.

Second, Gasaway asserts that the prosecutor presented an improper hypothetical

regarding reasonable doubt during voir dire at the trial. Third, he argues the trial

court erred by allowing the introduction of evidence of his possession of

methamphetamine and marijuana that was addressed in the first trial. Finally,

Gasaway argues that the trial court erred by allowing opinion testimony of the

video that showed the heroin package falling out of Gasaway’s pocket that resulted

in his arrest. We shall examine each issue in the order raised.

STANDARD OF REVIEW

Our standard of review upon a trial court’s denial of a motion to

suppress evidence requires a two-step analysis. First, the trial court’s factual

findings are conclusive if supported by substantial evidence. Milam v.

Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015). Second, the court’s application

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of law to those findings of facts is reviewed de novo. Simpson v. Commonwealth,

474 S.W.3d 544, 547 (Ky. 2015). As concerns the remaining issues raised in this

appeal, our standard of review will be abuse of discretion as discussed in the

analysis for each issue raised.

ANALYSIS

It is uncontroverted that at the time of the search, Gasaway was on

parole and under the supervision of the Kentucky Department of Corrections. It is

also well-settled that pursuant to the Fourth Amendment to the United States

Constitution, persons on parole have a greatly diminished expectation of privacy.

See Samson v. California, 547 U.S. 843, 848-49 (2006). In fact, “parolees have

fewer expectations of privacy than probationers, because parole is more akin to

imprisonment than probation. . . . [P]arole is an established variation on

imprisonment of convicted criminals[.]” Bratcher v. Commonwealth, 424 S.W.3d

411, 414 (Ky. 2014) (quoting Samson, 547 U.S. at 850). Paramount to this appeal,

the Kentucky Supreme Court, in Bratcher, specifically held that “the Fourth

Amendment presents no impediment against a warrantless and suspicionless search

of a person on parole.” Id. at 415.

Although the Kentucky Supreme Court has addressed a parolee’s

privacy rights as to a search under the Fourth Amendment of the United States

Constitution, it has not addressed same under Section 10 of the Kentucky

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Constitution. See Bratcher, 424 S.W.3d at 416 (holding “[w]e have not . . .

affirmed a construction of a parolees’ privacy rights against police searches based

upon the Kentucky Constitution.”). However, the Kentucky Supreme Court has

clearly recognized that Section 10 of the Kentucky Constitution is coextensive with

the Fourth Amendment to the United Sates Constitution. Marino v.

Commonwealth, 488 S.W.3d 621, 624 (Ky. App. 2016) (quoting Watkins v.

Commonwealth, 307 S.W.3d 628, 630 (Ky. 2010)).

In view of such precedent, we are constrained to adhere to same and

conclude that Section 10 of the Kentucky Constitution would, likewise, present no

impediment against a warrantless and suspicionless search of a parolee or his

vehicle.3 Thus, it is irrelevant whether officers possessed reasonable suspicion to

search Gasaway’s vehicle as it is unnecessary to possess such suspicion to search

the vehicle of a parolee. We, therefore, conclude that Gasaway’s argument to the

contrary is without merit.

Gasaway’s next argument on appeal is that during voir dire of the

potential jurors at the retrial for the possession of heroin charge, the

Commonwealth “improperly presented the jury with a hypothetical to explain what

3
As an intermediate appellate court, pursuant to Rules of the Supreme Court 1.030(8)(a), we are
bound to follow Kentucky Supreme Court precedent; however, we encourage the Kentucky
Supreme Court to specifically address this issue as concerns an unreasonable search and seizure
of a parolee under Section 10 of the Kentucky Constitution.

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would satisfy the ‘reasonable doubt’ standard.” Gasaway’s Brief at 9. Gasaway

acknowledges this issue is unpreserved but requests review for palpable error

pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26.

Pursuant to RCr 10.26, an unpreserved error may be reviewed and

relief granted if appellant’s substantial rights were affected and a manifest injustice

resulted. Kiper v. Commonwealth, 399 S.W.3d 736, 747 (Ky. 2012). A manifest

injustice occurs where the error “seriously affects the fairness, integrity[sic] or

public reputation” of the judicial proceeding so as to be “shocking or

jurisprudently intolerable.” Williams v. Commonwealth, 462 S.W.3d 407, 410 (Ky.

App. 2015). Furthermore, a trial court is granted broad discretion in its control

over the voir dire examination pursuant to RCr 9.38. Rogers v. Commonwealth,

315 S.W.3d 303, 306-7 (Ky. 2010). Although it is certainly “within the discretion

of the trial court to limit the scope of voir dire, that discretion is not boundless.

Appellate review of such limitation is for abuse of discretion.” Id. at 306-07

(quoting Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky. 2005)). Our review

shall proceed accordingly.

The specific statements made by the Commonwealth during voir dire

upon Gasaway’s retrial on the possession of heroin charge were as follows:

We, the standard here is the highest standard in the
legal community. Okay. It’s beyond a reasonable doubt.
You all have an opportunity to try a civil case, I don’t
wish that on you, but, um, if you do, they have a different

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 standard. Here, it’s the high standard. Beyond a
reasonable doubt.

I didn’t say beyond any doubt. Okay. But beyond
a reasonable doubt. The, we are not allowed to define
that for you. Alright. We’re just not allowed to. You
have to come up, whatever that means to you. Okay.
You, you come up with that on your own. We can’t
define if for you.

But, I want to give you an example. Alright.
Has anyone in here ever heard of Tiger Woods or Roy
McIlroy? Anybody play golf? Okay. The, uh, pretty
good golfers. Wouldn’t you say? Alright. The, you play
golf? [Juror says, “I’m not good at it.”] I’m not, yeah, I
don’t know what I play is golf. Okay. I got golf clubs
and go to the golf court and, three, up there, they’ve got a
three par, a par three up there at the American Legion.

But, who in here believes if I was to go out and
play golf with Roy and Tiger, that it’s possible, possible
that I could beat them in nine holes. Does everyone
agree it’s possible. Anything’s possible. Both their arms
could fall off. Okay. It’s possible. Maybe extreme, but
it’s possible. Anything could happen, okay.

Is it reasonable to believe that I would beat both of
them? No. No, it’s not reasonable. Um, it’s not. If you
play golf, you know its not reasonable. Does everybody
understand the difference between possible and
reasonable though? Okay. Now, does everybody agree
to hold this man responsible for his actions if I meet my
burden of proof beyond a reasonable doubt?

Gasaway’s Brief at 11.

The Kentucky Supreme Court, in accordance with RCr 9.56, has

consistently held that “reasonable doubt” cannot be defined for the jury. See, e.g.,

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Commonwealth v. Callahan, 675 S.W.2d 391, 392 (Ky. 1984); Johnson v.

Commonwealth, 184 S.W.3d 544, 550 (Ky. 2005). The prohibition against

defining reasonable doubt extends to both the Commonwealth and defendant, and

it applies to all stages of the trial, including voir dire. Callahan, 675 S.W.2d at

393.

Conversely, our Supreme Court has held it is permissible to define

what reasonable doubt is not. See Rogers v. Commonwealth, 315 S.W.3d 303, 308

(Ky. 2010) (finding permissible counsel’s statement to the jury that “beyond a

reasonable doubt” is not the same as the standard utilized in a civil trial which is

“beyond a preponderance of the evidence”); Johnson, 184 S.W.3d at 548-49

(finding permissible counsel’s statement that “beyond a reasonable doubt” is not

the same as “beyond a shadow of a doubt”). However, in Marsch v.

Commonwealth, 743 S.W.2d 830, 833-34 (Ky. 1987), the Court held that the

Commonwealth’s extended discussion with a potential juror during voir dire about

reasonable doubt using a hypothetical to contrast “reasonable doubt” with “beyond

a shadow of a doubt” did violate the rule against defining reasonable doubt.

In the case sub judice, the Commonwealth engaged in more than just

merely stating what reasonable doubt is not. Rather, the Commonwealth provided

a lengthy hypothetical that juxtaposed what is reasonable versus what is possible.

Consequently, we agree with Gasaway that the Commonwealth’s statements

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violated the prohibition against defining reasonable doubt. Nonetheless, we hold

that the unpreserved error did not seriously affect the fairness, integrity, or public

reputation of the judicial proceeding so as to be shockingly or jurisprudently

intolerable. See Williams, 462 S.W.3d at 410. Accordingly, we conclude the

unpreserved error did not rise to the level of manifest injustice as there was

overwhelming evidence to support Gasaway’s conviction upon possession of

heroin. Therefore, any error did not rise to the level of palpable error under RCr

10.26.

Gasaway next contends the trial court erred during his retrial on the

possession of heroin charge by allowing introduction of evidence of Gasaway’s

possession of marijuana and possession of methamphetamine. At the trial,

the Commonwealth announced its intention to introduce evidence that

methamphetamine and marijuana had been discovered in Gasaway’s truck. In the

first trial, Gasaway had been acquitted of the possession of methamphetamine

charge but had been found guilty of the misdemeanor charge of possessing

marijuana. Gasaway objected to the introduction of evidence of both the

methamphetamine and the marijuana.

At trial, the Commonwealth acknowledged it would be improper to

introduce the results of Gasaway’s first trial but contended it could reference the

discovery of methamphetamine and marijuana pursuant to Kentucky Rules of

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Evidence (KRE) 404(b). In support thereof, the Commonwealth noted that in

addition to the methamphetamine and the marijuana discovered in Gasaway’s

truck, there was also a urinalysis drug detection device, which would indicate he

was trying to thwart detection of his drug use. And, the Commonwealth argued

that the methamphetamine and marijuana provided context to Gasaway’s statement

to Detective Dover that “I’m not worried about the weed or ecstasy, and you damn

sure didn’t find no three grams of heroin. And in Louisville, that’s just a citation.”

Commonwealth’s Brief at 5. The trial court ultimately ruled that evidence of the

methamphetamine and the marijuana discovered in Gasaway’s truck was

admissible under KRE 404(b). The trial court also gave an admonition to the jury.

Regarding the introduction of the methamphetamine, Gasaway had

been acquitted upon the possession of methamphetamine charge during the first

trial. And, it is well-settled that the Commonwealth is prohibited from introducing

evidence of charges that were “dismissed or set aside.” Meyer v. Commonwealth,

393 S.W.3d 46, 53 (Ky. App. 2013) (citation omitted). However, whether

evidence of the conduct, as opposed to evidence of the criminal charge, can be

introduced into evidence is another issue entirely.

The United States Supreme Court addressed this precise issue in

Dowling v. United States, 493 U.S. 342 (1990). In Dowling, the Supreme Court

held that an acquittal in a criminal case does not preclude the prosecution from

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introducing evidence of the same conduct in a subsequent trial. The holding in

Dowling has been cited by the Kentucky Supreme Court. See Hampton v.

Commonwealth, 133 S.W.3d 438, 442 (Ky. 2004). And Dowling also held that a

limiting instruction or an admonition to the jury is proper, if requested. See

Dowling, 493 U.S. at 348-49.

In this case, the Commonwealth did not attempt to introduce evidence

of the criminal charge of possession of methamphetamine; rather, the

Commonwealth merely introduced evidence that methamphetamine was

discovered in Gasaway’s truck along with the marijuana and the urinalysis drug

detection device. And, the trial court gave an admonition to the jury. Therefore,

pursuant to the holdings in Dowling, 493 U.S. 342 and Hampton, 133 S.W.3d 438,

we do not perceive any impediment to the admission of the evidence that

methamphetamine was discovered in Gasaway’s vehicle simply because he was

acquitted of the charge. Again, the Commonwealth did not introduce evidence that

Gasaway was charged with methamphetamine only that it was discovered in his

truck. We find no error regarding its admissibility.

As concerns the marijuana, the trial court ruled that the evidence was

discovered in Gasaway’s vehicle and could be introduced under the exceptions

provided for in KRE 404(b). Gasaway contends this was in contravention of the

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evidentiary rule. Accordingly, we must examine whether evidence of the

marijuana was properly admitted pursuant to KRE 404(b).

KRE 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith.
It may, however, be admissible:

(1) If offered for some other purpose, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident; or

(2) If so inextricably intertwined with other
evidence essential to the case that separation of
the two (2) could not be accomplished without
serious adverse effect on the offering party.

Under KRE 404(b), evidence of other crimes, wrongs, or acts is

generally inadmissible to demonstrate “a defendant’s propensity to commit crimes

in order to show that he or she committed the charged crime.” Robert G. Lawson,

THE KENTUCKY EVIDENCE LAW HANDBOOK § 2.30(1)(a) (5th ed. 2013). However,

evidence of other crimes, wrongs, or acts is admissible to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident[.]” KRE 404(b)(1). It is also admissible if the evidence is so

inextricably intertwined with other essential evidence that separation of the two

could not occur without serious adverse effect on the offering party. KRE 404

(b)(2). And, KRE 404(b)(2) is “intended to be flexible enough to permit the

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prosecution to present a complete, un-fragmented . . . picture of the crime . . .

including necessary context, background and perspective.” See Major v.

Commonwealth, 177 S.W.3d 700, 708 (Ky. 2005). Evidence that is deemed

admissible under KRE 404(b) must also satisfy the probative versus prejudice

analysis of KRE 403. Helton v. Commonwealth, 595 S.W.3d 128, 132 (Ky. 2020).

The trial court’s ruling upon the admissibility or exclusion of evidence is reviewed

for abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d

575, 577 (Ky. 2000).

In this case, the Commonwealth asserts that both the

methamphetamine and marijuana evidence from the first trial were admissible

pursuant to 404(b)(1) to demonstrate Gasaway’s intent and/or was admissible

under KRE 404(b)(2), as inextricably intertwined with the possession of the

heroin.4 More particularly, as to KRE 404(b)(2), the Commonwealth asserts:

Regardless, the evidence that Gasaway possessed
marijuana and ecstasy [later determined to be
methamphetamine] was admissible under KRE 404(b)(2)
because it was necessary for the Commonwealth to
present its entire case to the jury. “KRE 404(b)(2) is
intended to be flexible enough to permit the prosecution
to present a complete, un-fragmented, un-artificial
picture of the crime committed by the defendant,
including necessary context, background[,] and
perspective.” Major v. Commonwealth, 177 S.W.3d 700,

4
We have previously concluded that the methamphetamine was properly introduced at trial,
notwithstanding Gasaway’s acquittal on that charge. This evidence would also be admissible
under our Kentucky Rules of Evidence 404 analysis for the marijuana.

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 708 (Ky. 2005) (citation and internal quotation marks
omitted); see also Clark v. Commonwealth, 267 S.W.3d
668, 681 (Ky. 2008) (events were admissible under KRE
404(b)(2) because they “were germane to the overall
sequence of events surrounding the crimes and to the
events which led to them being reported to authorities.”).

The Whizzanator was circumstantial evidence that
Gasaway possessed heroin. McClanahan testified that
the employees of Knight’s Mechanical are subject to
random drug screens. Someone using controlled
substances would likely need to circumvent that
requirement, and Gasaway could have used the
Whizzanator to do just that. It’s also important that
Gasaway kept the item in his vehicle, where he could
presumably access it if his place of employment
demanded a urine sample without giving him prior
notice. And the circumstances surrounding the search of
Gasaway’s vehicle were also relevant: Because the
Whizzanator was substantive evidence of Gasaway’s
guilt, his pugnacious response to the prospect that law
enforcement would search his vehicle – where the item
was found – was also probative of his guilt.

Commonwealth’s Brief at 20-21 (citation to record omitted).

Upon review of the Commonwealth’s argument as to admissibility

under KRE 404(b)(2), we are inclined to agree that the trial court properly

admitted evidence of the marijuana discovered in Gasaway’s truck as it was

inextricably intertwined with the other essential evidence and that separation of the

two could not occur without serious adverse effect on the offering party. See Kerr

v. Commonwealth, 400 S.W.3d 250, 261-62 (Ky. 2013). Likewise, we view the

probative value of the evidence as outweighing any potential prejudicial effect

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thereof. See KRE 403. Consequently, we cannot conclude that the trial court

abused its discretion by admitting evidence of the marijuana or methamphetamine

discovered in Gasaway’s truck.

Gasaway’s final argument is that the trial court erred by allowing

certain witnesses to offer improper opinion testimony of the video footage that

depicted the heroin falling out of Gasaway’s pocket as he removed his cell phone.

More particularly, Gasaway asserts that it was error to allow Knight, Tharpe, and

Detective Dover to convey to the jury that they had watched the video footage and

that it depicted heroin falling out of Gasaway’s pocket.

It is well-established that KRE 602 and KRE 701 set forth the rules

governing the admissibility of narrative testimony. See Morgan v. Commonwealth,

421 S.W.3d 388, 392 (Ky. 2014). In Morgan, the Kentucky Supreme Court

explained:

KRE 701 limits opinion testimony by a lay witness to
that which is “[r]ationally based on the perception of the
witness; [and] . . . [h]elpful to a clear understanding of
the witness’ testimony or the determination of a fact in
issue.” KRE 701(a)-(b). In addition, KRE 602 requires a
witness to have personal knowledge before being allowed
to testify about a subject.

Morgan, 388 S.W.3d at 392. And, the Morgan Court also noted that a lay witness

should not interpret video evidence because doing so “invades the province of the

jury” which is tasked with making those determinations of fact based upon the

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evidence presented. Id. at 392 (citation omitted). It was, likewise, held in Morgan

that it is permissible for witnesses to identify an individual on video where the

identification is based upon the “witnesses’ personal knowledge from prior

exposure” to the person’s physical appearance. Id. at 392.

In the case sub judice, Knight and Tharpe both worked with Gasaway,

and they were familiar with his physical appearance. As such, it was proper for

them to identify Gasaway in the video based upon their personal knowledge. As

for Detective Dover, we believe the court erred in the admission of his testimony

about the video. However, we find this error to be harmless because the jury was

shown the video; consequently, the jury was “in a position to interpret the security

footage independently from the testimony.” Boyd v. Commonwealth, 439 S.W.3d

126, 132 (Ky. 2014). Upon the whole, we believe the trial court did not abuse its

discretion by allowing Knight and Tharpe to testify about the video footage and

any error regarding Detective Dover’s testimony was harmless.

For the foregoing reasons, the August 30, 2019, judgments of the

Hardin Circuit Court are affirmed.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Brandon Neil Jewell Daniel Cameron
Steven J. Buck Attorney General of Kentucky
Assistant Public Advocate Frankfort, Kentucky
Department of Public Advocacy
Frankfort, Kentucky Christopher Henry
Assistant Attorney General
ORAL ARGUMENT FOR Frankfort, Kentucky
APPELLANT:
ORAL ARGUMENT FOR
Erin Yang APPELLEE:
Assistant Public Advocate
Department of Public Advocacy Christopher Henry
Frankfort, Kentucky Assistant Attorney General
Frankfort, Kentucky

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