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RENDERED: AUGUST 14, 2025
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0384-MR
DAMON R. CRUSE APPELLANT
V.
ON APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
NO. 21-CR-00133
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Damon Cruse appeals from his convictions by the Adair Circuit Court following a jury trial. The jury found Cruse guilty of three counts of first-degree trafficking in a controlled substance (over two grams of methamphetamine) (Kentucky Revised Statutes (KRS) 218A.1412) and illegal possession of drug paraphernalia (KRS 218A.500(2)). The trial court sentenced Cruse to a total of twenty years in prison and he appeals to this Court as a matter of right. Finding no grounds for reversal, we affirm.
I. FACTUAL AND LEGAL BACKGROUND
Utilizing a confidential informant, the Kentucky State Police (KSP) conducted three controlled buys of methamphetamine from Cruse on February 22nd, March 9th, and April 13th of 2021. Each of these buys were conducted
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with the confidential informant wearing a video and audio recording device and, on each occasion, Cruse sold the informant approximately two ounces of methamphetamine at a cost of $750.00 per ounce.
During the first purchase, Cruse took bags of methamphetamine out of a lockbox to give to the informant. During the second, Cruse obtained the methamphetamine from a cooler that was in the trunk of his car. During the third purchase, which occurred inside Cruse's garage, Cruse changed the way in which he conducted his sales and explained to the confidential informant that he, Cruse, had been charged with trafficking but that if he never touched either money or drugs, then he could not be found guilty. During this last transaction, the confidential informant put the purchase cash down on Cruse's toolbox and then, at the instruction of Cruse, left to purchase a beverage for Cruse at a nearby store. When the confidential informant returned, Cruse was waiting outside of a pickup truck and told the buyer to retrieve the methamphetamine which was sitting on the seat inside. KSP obtained a search warrant for Cruse's house and garage and while no drugs were located during the search, Cruse's cooler was recovered which contained sandwich baggies, digital scales, and the cash utilized in the third controlled buy. Cruse was indicted on three counts of trafficking in a controlled substance in the first-degree and one count of possession of drug paraphernalia. At the conclusion of his trial, the jury found Cruse guilty on all counts and recommended that he serve eight years in prison on each trafficking offense, to be served consecutively, and serve an additional 365 days
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on the drug paraphernalia offense to run concurrently. The trial court however recognized that KRS 532.110(1)(c) would only allow for a statutory maximum sentence of twenty years' imprisonment for the trafficking offenses and sentenced Cruse accordingly.
II. ANALYSIS
Cruse raises one issue on appeal arguing the trial court erred by allowing the Commonwealth to present an unedited video of the third controlled buy in which Cruse talks about being criminally charged in Casey County, Kentucky, for crimes unrelated to the offenses in Adair County. According to Cruse's argument, his discussion regarding the Casey County offenses was irrelevant, prejudicial, and constituted prohibited
"evidence of other crimes" contrary to Kentucky Rules of Evidence (KRE) 404(b).
A. Was Evidence of Cruse's "Prior Bad Acts" or "Other Crimes" Improperly Admitted?
Both prior to, and at the beginning of his trial, Cruse's counsel objected to the introduction of portions of the videos in which Cruse discussed a separate criminal matter in Casey County which was ultimately dismissed. In response, the Commonwealth stated that Cruse's statements were relevant to his knowledge of drug trafficking because Cruse had explained his understanding of the actus reus (hand-to-hand transfers of cash and drugs) necessary to support a trafficking conviction. The trial court reserved ruling until it had reviewed the recordings and then later, in both oral and written determinations, ruled that the whole of the recording was admissible as
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inextricably intertwined evidence and relevant in order to give the jury the context for understanding why the drug transactions were not hand-to-hand. In the videos shown from the third, and last controlled buy, Cruse explained to the confidential informant why he was utilizing a new method in selling methamphetamine, discussing his experiences,and what he had learned in Casey County. The portions of those videos to which Cruse objected contained the following statements:
CRUSE: You know I didn't pay twenty-something thousand for a God-damned lawyer just because I had twenty-
something thousand dollars. I said read your
paperwork, honey. They tried to indict me and
couldn't. They put you [Cruse's co-defendant] with
my indictment to get my indictment.
INFORMANT: [inaudible]
CRUSE: I said so, but here is the deal, they made a mistake because they put me as a defendant and you as the
co-defendant. Okay. Trafficking is from one hand to
the other. That means I—there has to be a transfer of something. If it says on there I didn't touch no dope and I didn't touch no money, and I'm the defendant,
when they drop my case, they have to kill yours with
it. You're the co-defendant.
INFORMANT: [inaudible]
CRUSE: I said when they made the mistake of doing it that way. I said that's the reason they won't give me my
motion for discovery because they don't want me to
know who it was.
The Commonwealth argues that Cruse did not effectively preserve this argument since his original objection to the trial court was not "sufficiently detailed" and he did not raise, or reassert, an objection when the videos were finally played for the jury. We have determined this issue was preserved.
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Accordingly, we review the admissibility of such evidence under an abuse of discretion standard, rather than our more stringent palpable error standard, to determine whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999). Beginning our analysis, KRE 404(b) states:
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.
As a general rule, KRE 404(b) prohibits the introduction of other criminal acts. As we have previously stressed, KRE 404(b) is "exclusionary in nature,"
and as such, "any exceptions to the general rule that evidence of prior bad acts is inadmissible should be 'closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.'" Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982)).
To determine the admissibility of prior bad act evidence, we have adopted the three-prong test described in Bell v. Commonwealth, 875 S.W.2d 882, 889-
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91 (Ky. 1994), which evaluates the proposed evidence in terms of: (1) relevance,
(2) probativeness, and (3) its prejudicial effect. KRE 404(b) would be applicable if the evidence was introduced with the sole intention of showing that Cruse was acting in conformity with his character to sell methamphetamine (prior sales or usage) when the presently charged bad act occurred (i.e., "prove the character of a person in order to show action in conformity therewith"). Ky. Farm Bureau Mut. Ins. Co. v. Rogers,
179 S.W.3d 815, 819 (Ky. 2005). In other words, evidence of other acts cannot be used to show a propensity or predisposition to again commit the same or a similar act. This is a codification of the "venerable rule that a defendant may not be convicted on the basis of low character or criminal predisposition, even though such character or predisposition makes it appear more likely that the defendant is guilty of the charged offense."
Southworth v. Commonwealth, 435 S.W.3d 32, 48 (Ky. 2014) (quoting Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992)).
Certainly, Cruse's words painted him as a seasoned and knowledgeable drug dealer and his statements referencing wholly separate offenses can readily be viewed as prejudicial to his interests in avoiding conviction. Here, however, the evidence was of such a nature as to be "inextricably intertwined with other evidence essential to the case." KRE 404(b)(2). It was Cruse himself who interjected information regarding his "prior bad acts" into his latest criminal enterprise by giving a detailed explanation to his buyer as to why he would not accept cash directly from the buyer's hands and would not pass drugs directly into the buyer's hands. It was Cruse who voluntarily narrated this final sale by
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fully describing both his current modus operandi and his underlying, albeit incorrect, rationale for such. In this respect, the evidence offered was both probative and relevant. The precise manner in which Cruse conducted his drug sales, as he voluntarily explained, was in turn res gestae and inextricably intertwined with the novel manner in which the final sale was conducted and it was not an abuse of discretion for the trial court to allow the Commonwealth here to present a "complete, un-fragmented, unartificial picture" to the jury of how the events at issue transpired. Major v. Commonwealth, 177 S.W.3d 700, 708 (Ky. 2005). Additionally, under KRE 404(b)(1), this portion of the recording was properly offered to establish Cruse's plan, knowledge, and absence of mistake in how he was now choosing to sell methamphetamine to try to avoid prosecution.
III. CONCLUSION
We affirm Cruse's convictions and the sentences imposed by the Adair Circuit Court.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Adam Meyer
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky Melissa A. Pile
Assistant Attorney General
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