RENDERED: JUNE 9, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0588-MR
TOBY AKERS APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE THOMAS M. SMITH, JUDGE
ACTION NO. 20-CR-00122
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND KAREM, JUDGES.
KAREM, JUDGE: Toby Akers (“Akers”) appeals his convictions for second-
degree escape and being a first-degree persistent felony offender. Finding no error,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a pending circuit court case, the Floyd Circuit Court placed Akers
in a home incarceration program (“HIP”) as a condition of his pretrial release.
Akers enrolled in a HIP program managed by a private company named East
Kentucky Home Incarceration (“East Kentucky”). Before his enrollment, a
representative from East Kentucky reviewed East Kentucky’s registration form and
contract with Akers while Akers was incarcerated. Akers signed the contract and
initialed each page.
Approximately one (1) month after being placed on HIP, Akers cut his
ankle monitor and left his home without permission. Akers was ultimately
apprehended at a hotel and charged with second-degree escape.
At his trial for second-degree escape, Akers testified that while he was
on HIP, a man named Wes Martin had threatened him and his family. Akers
asserted that he removed his ankle monitor and left his home after the police’s
alleged failure to act regarding Martin’s threats. However, on rebuttal, various
witnesses testified that no record existed of Akers contacting the police.
Akers further testified at his trial that he had used methamphetamine
in his cell before meeting with the East Kentucky representative to sign the East
Kentucky contract. In addition, other inmates allegedly around Akers on the day
he signed the East Kentucky contract, including Akers’s son Josh, testified that
Akers exhibited slurred speech, glassy eyes, and erratic behavior on the day in
question. Nevertheless, Josh acknowledged on cross-examination that Akers could
understand basic questions.
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Additionally, Akers testified that he had not read the East Kentucky
contract before signing. Specifically, Akers claimed that the East Kentucky
representative offered to read the paperwork to him, but Akers replied, “What does
it really matter? I’ve already signed them anyway.”
The jury ultimately found Akers guilty of second-degree escape and
being a first-degree persistent felony offender (“PFO”), and the circuit court
sentenced him to sixteen (16) years imprisonment. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
a. Third-Degree Escape Jury Instruction
Akers first argues on appeal that the trial court should have instructed
the jury on third-degree escape as a lesser-included offense. As a preliminary
matter, we review a trial court’s decision declining to give a jury instruction for an
abuse of discretion. Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005).
An abuse of discretion occurs when a trial court’s decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Under Kentucky law, “[a] court is required to instruct a jury on all
offenses that are supported by the evidence.” Clark v. Commonwealth, 223
S.W.3d 90, 93 (Ky. 2007) (citation omitted). Our Supreme Court has stated that “a
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defendant is entitled to an instruction on a lesser-included offense if the evidence
would permit a jury to rationally find him guilty of the lesser-offense and acquit
him of the greater.” Smith v. Commonwealth, 737 S.W.2d 683, 687 (Ky. 1987)
(citation omitted).
Turning to the statutory elements of escape, under Kentucky Revised
Statute (“KRS”) 520.030, an individual is guilty of second-degree escape when
that person “escapes from a detention facility or, being charged with or convicted
of a felony, he escapes from custody.” Alternatively, a person is guilty of third-
degree escape when that person “escapes from custody.” KRS 520.040. Under
both statutes, “escape” is defined as “departure from custody or the detention
facility in which a person is held or detained when the departure is unpermitted[.]”
KRS 520.010(5).
Additionally, the Kentucky Supreme Court has determined that “for
an incarceree in HIP, leaving the specified home without permission . . . is escape
from a detention facility under KRS 520.030(1). Escape from such a home can
therefore constitute second-degree escape.” Lawton v. Commonwealth, 354
S.W.3d 565, 569 (Ky. 2011). In Lawton, the defendant was placed in HIP, obliged
to wear an ankle bracelet, and proscribed from leaving his mother’s home without
permission. 354 S.W.3d at 567. The defendant subsequently removed the
bracelet, left his mother’s house without permission, and was convicted of second-
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degree escape. Id. The Kentucky Supreme Court rejected the defendant’s
argument on appeal that he was entitled to a third-degree escape instruction as a
lesser-included offense, stating:
Because we hold that for the purposes of the escape
statutes a home in which a person is confined under a
HIP agreement is a detention facility, and leaving the
home without permission is second-degree escape, there
is no way that a jury could have found that Appellant
committed third-degree escape but not second-degree
escape.
Id. at 576. The Court went on to comment, “[o]f course, a jury may disbelieve the
Commonwealth’s evidence that Appellant committed those acts, but in such a case,
it would simply acquit. The jury could not find Appellant guilty of third-degree
escape but not guilty of second-degree escape in this case.” Id.
This case presents a very similar situation. No dispute exists that
Akers cut his ankle bracelet and left the house without permission. No
circumstances in this case change the home from which he escaped into something
other than a “detention facility” under the second-degree escape statute. KRS
520.030(1); Lawton, 354 S.W.3d at 569. Thus, there was no way for a jury to find
that he escaped from “custody” but not a “detention facility.” Because the jury
could not rationally have found Akers guilty of third-degree escape
but not guilty of second-degree escape, the trial court did not err in declining to a
jury instruction on third-degree escape. We see no abuse of discretion.
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While Akers argues that some jurors may have felt Akers’s alleged
intoxication rendered the home incarceration contract invalid or somehow rendered
him incapable of knowing he was escaping a detention facility, his state of mind
was not an element of the offense. KRS 520.030 requires only that the defendant
escapes from a detention facility, with “escape” defined as an unpermitted
“departure” from the detention facility. KRS 520.030, KRS 520.010(5). Akers did
not dispute that he intentionally and without permission left the home on the day
he removed his ankle monitor.
Moreover, a binding contract with the HIP provider is not a
requirement under KRS 520.030. Rather, the court orders HIP, and an individual’s
obligation to remain within the detention facility unless otherwise granted
permission is statutory. KRS 532.220(1). Thus, the court’s decision was not
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
b. Other Alleged Errors
Akers next argues that the trial court committed an error during his
sentencing/PFO stage by making certain statements to the jury. Akers did not
preserve this alleged error by objection, and Akers is requesting us to engage in a
“palpable error” review under Kentucky Rule of Criminal Procedure (“RCr”)
10.26.
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Under RCr 10.26, an unpreserved error may generally be considered
on appeal if the error is “palpable,” “affects the substantial rights of a party[,]” and
results in “manifest injustice.” Kentucky’s Supreme Court has stated that a
palpable error “must be easily perceptible, plain, obvious and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation
marks and citations omitted). Moreover, a palpable error affects the substantial
rights of the party “only if it is more likely than ordinary error to have affected the
judgment.” Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005) (citations
omitted).
In this case, the Commonwealth introduced two certified judgments of
Akers’s prior felony convictions. Thereafter, the trial court stated the following:
That [the judgments introduced as exhibits]
includes information that the defendant was
convicted of receiving stolen property, over $500, by
final judgment on February 21, 2014, and prior to
the conviction for escape. And, prior to February 21,
2014, he was convicted of unlawful possession of
methamphetamine precursor, theft by deception,
and receiving stolen property by final judgment of
Floyd Circuit Court, May 10, 2021. Meaning, in
essence, there are two felony convictions prior to the
commission of the charge involved in this case.
The trial court then read the first-degree PFO instruction to the jury, including a
statement regarding the presumption of innocence and the requirement that the jury
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find Akers guilty of this charge only if the Commonwealth proved all the statutory
elements beyond a reasonable doubt.
On appeal, Akers argues the trial court’s statement invaded the
province of the jury by making a finding of fact relevant to the PFO charge.
However, we do not see a “substantial possibility” that the trial’s result would have
differed had the trial court not made the comments. The trial court did not give an
opinion regarding Akers’s guilt as to being a first-degree PFO or whether the
Commonwealth had met its burden. Rather, the trial court simply stated that the
Commonwealth’s exhibits showed that Akers had two prior felony convictions.
Additionally, the trial court instructed the jury concerning the presumption of
innocence and that the Commonwealth was required to prove each element beyond
a reasonable doubt. We discern no palpable error.
Akers next argues palpable error occurred when the trial court allowed
the jury to view, in violation of KRS 532.055(2)(a)2. and Blane v. Commonwealth,
364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v.
Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015), a certified copy of a judgment
stating that Akers had a PFO first-degree charge dismissed. During the sentencing
portion of a trial, the Commonwealth may introduce evidence of a defendant’s
prior convictions, both felonies and misdemeanors. KRS 532.055(2)(a). However,
under Kentucky law, “it is . . . well settled that the Commonwealth cannot
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introduce evidence of charges that have been dismissed or set aside.” Blane, 364
S.W.3d at 152 (citations omitted),.
Nevertheless, as the Court discussed in Chavies v. Commonwealth,
such an error does not necessarily require reversal under the “palpable error”
standard of review. 354 S.W.3d 103, 114-16 (Ky. 2011), abrogated on other
grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015). In Chavies, the
Kentucky Supreme Court determined that the Commonwealth committed an error
by introducing a prior dismissed indictment during the trial’s penalty phase. Id. at
114-15. Nonetheless, the Court concluded that the error was not palpable because
the Commonwealth only introduced an indictment; “the dismissed and amended
offenses were never pointed out to the jury by the trial judge, the Commonwealth,
or the Commonwealth’s witness”; and Chavies did not receive the maximum
sentence for his convictions. Id. at 115.
Likewise, in this case, neither the trial court nor the Commonwealth
mentioned or discussed Akers’s dismissed charge, and he did not receive the
maximum sentence for his convictions. Additionally, Akers had a considerable
criminal record, having been convicted of seven Class D felonies and five
misdemeanors. Because neither the trial court nor the Commonwealth discussed
the dismissed PFO charge with the jury and given the middle-range sentence the
jury endorsed despite Akers’s lengthy criminal history, there is not a reasonable
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likelihood the jury would have recommended a lesser sentence had it not received
the exhibit. Thus, we do not find that a palpable error occurred in light of these
facts.
Akers’s final argument is that if this Court does not believe that either
of the foregoing alleged errors rises to the level of palpable error, this Court
considers the cumulative effect of both alleged errors and grants a new penalty
phase. Under the cumulative-error doctrine, “multiple errors, although harmless
individually, may be deemed reversible if their cumulative effect is to render the
trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky.
2010). Cumulative error will be found “only where the individual errors were
themselves substantial, bordering, at least, on the prejudicial.” Id. However,
because we have found that this case did not involve multiple errors “bordering . . .
on the prejudicial,” Akers’s cumulative-error argument is without merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Floyd
Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven J. Buck Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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