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RENDERED: SEPTEMBER 24, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0186-MR
MARK WEST APPELLANT
V.
ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
NO. 24-CR-00799
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury of the Kenton Circuit Court found Appellant Mark A. West guilty of receiving stolen property, wanton endangerment in the first degree, two counts of criminal mischief, and being a persistent felony offender ("PFO"). The jury recommended a sentence of five years on each count, enhanced by the PFO conviction to twenty years for the wanton endangerment and receiving stolen property convictions, and ten years for each count of criminal mischief. The jury recommended the sentences run consecutively for a total of sixty years, and the trial court set the final sentence to a total of twenty years in recognition of the statutory sentencing cap. West now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Following a careful review, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2023, Montell Hall left his job at White Castle in Cheviot, Ohio, around 6:30 a.m. and proceeded to a nearby gas station. Hall left his recently purchased Ford Fusion running while he went into the gas station. While he was inside the station, Appellant West stole the car and drove away.
Hall called local police, who said they could not help him because he did not yet have title to the car. Hall then asked his girlfriend Ke'Mani McKinnie to track his phone, which he had left in the Ford Fusion, on a Life360 app on her phone. While using the tracking app, Hall's neighbor Jacob drove Hall and McKinnie in pursuit of their new car.
Ultimately, the trio found the car parked with West sitting inside at the gas pumps at a Kroger in Fort Mitchell, Kentucky. Another vehicle was in front of West, and Jacob pulled in behind him, boxing the car in. Hall got out, approached the passenger side of the Ford Fusion, and attempted to get in. Meanwhile, McKinnie approached the driver's side yelling for West to give the car back.
West then threw the car into reverse and backed into Jacob's vehicle. According to West, he did so only after McKinnie pointed a gun at him. McKinnie testified, however, that she raised the gun only after West began to back up. In any event, while Hall still remained partially outside the vehicle, West put the car in drive and began to accelerate. McKinnie fired her gun at
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West, hitting him in the neck.1West continued to drive forward and hit the passenger side of a truck parked at another gas pump. Hall, who had been hanging onto the passenger door, was thrown into the truck and fell to the ground unconscious. West struck a yellow safety post before proceeding into the Kroger parking lot, where he struck a red truck before driving over a curb, where the car got stuck. West then exited the car and was ultimately apprehended by law enforcement.
At trial, West testified on his own behalf. He acknowledged that he stole Hall's car and that he was a convicted felon. He asserted that he threw the car in reverse instinctively to avoid the gun McKinnie had pointed at him. He testified that after he began moving in reverse, Hall opened the passenger door and yelled that he was going to "beat his ass." According to West, he then put the car in drive, after which McKinnie shot him, causing him to speed away. West testified he was in shock after being shot and was trying to get away, that he was panicked and scared because he believed Hall and McKinnie were trying to kill him, and that he did not realize how fast he was driving. The jury convicted West of receiving stolen property, wanton endangerment in the first degree, two counts of criminal mischief for the damage to other vehicles during the incident, and being a persistent felony offender in the first degree. While the jury recommended a total sentence of
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sixty years, the trial court imposed the maximum twenty-year sentence allowed under Kentucky Revised Statute ("KRS") 532.080(6).2West now appeals as a matter of right.
ANALYSIS
West raises five issues for our review: (1) whether he was entitled to a directed verdict on the wanton endangerment and criminal mischief counts for lack of a wanton state of mind; (2) whether the trial court erred in refusing to provide a choice-of-evils instruction on the criminal mischief charges;
(3) whether the trial court erred in allowing the prosecution to inquire whether West had consulted with counsel before acknowledging guilt on the receiving stolen property charge; (4) whether the trial court improperly admitted prior bad acts evidence; and (5) whether cumulative error requires a new penalty phase. We review each issue in turn, providing additional facts as necessary.
I. The Trial Court Correctly Denied West's Motion For Directed Verdict On The Wanton Endangerment And Criminal Mischief Charges.
West first argues that the trial court erred in denying his motion for directed verdict on the counts for wanton endangerment and criminal mischief, both in the first degree. Those charges arose from West's driving away from the gas pumps while Hall remained partially outside
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the vehicle, and his crashing into surrounding vehicles. West asserts directed verdict was warranted because his conduct was an immediate response to having just been shot, and thus not a conscious disregard of risk as required for a wanton state of mind. West made motions for directed verdicts on these charges and on this basis at the close of the Commonwealth's case, and at the close of his own case. The argument is therefore preserved. Sutton v. Commonwealth, 627 S.W.3d 836, 847 (Ky.
2021).
The standards for a trial court's consideration of a motion for directed verdict in a criminal case are well-known:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. 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. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "[T]here must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Id. at 187-88. On appellate review, we will find the defendant entitled to a directed verdict only if "under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id. "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Crabtree v. Commonwealth, 455 S.W.3d 390, 396 (Ky. 2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
First-degree wanton endangerment and criminal mischief in the first degree both require at least a wanton state of mind for conviction. KRS 508.060(1) (providing that a person is guilty of first-degree wanton endangerment when "he or she wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person"); KRS 512.020(1)(a)(1) (providing that a person is guilty of first-degree criminal mischief when he or she "intentionally or wantonly . . . [d]efaces, destroys, or damages any property causing pecuniary loss of five hundred dollars ($500) or more"). Conduct is wanton when the defendant "is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." KRS 501.020(3).
Here, West asserts that he drove the vehicle while Hall remained partially outside and struck surrounding vehicles only after McKinnie shot him. West argues that the resulting state of shock and pain made it impossible for him to have "consciously" disregarded the risks of driving away as he did; he therefore could not be found to have acted wantonly, and thus he was entitled to a directed verdict. We disagree.
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Whether a defendant consciously disregarded a substantial and unjustifiable risk and thus acted wantonly is an inherently fact-intensive question that must be resolved by the jury where there is evidence to support such a finding. See Exantus v. Commonwealth, 612 S.W.3d 871, 889 (Ky. 2020) (noting that a defendant's mental state during an assault is "a question of fact for the jury to decide"); Gribbins v. Commonwealth,
483 S.W.3d 370, 377 (Ky. 2016) (upholding conviction for wanton murder where "there was sufficient evidence for the jury to believe that [the defendant] consciously disregarded a substantial and unjustifiable risk which resulted in [the victim's] death."). Here, a jury could—and indeed did—find that West consciously disregarded a substantial and unjustifiable risk that driving as he did presented a substantial danger of death or serious physical injury to Hall, and of damage to surrounding vehicles. West had stolen the vehicle. When confronted by Hall and McKinnie over the stolen car, West chose to put the vehicle in reverse and slam into the car behind him. He then careened through the parking lot while striking other vehicles, in the process flinging Hall from the car and knocking him unconscious. The risks of such conduct are obvious and may easily be recognized and disregarded in the blink of an eye. Quite simply, there was nothing inherent in the circumstances faced by West that would have made it impossible for him to have consciously disregarded the risks created by his conduct.
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Certainly, the confrontation by Hall and McKinnie, the pulling of the gun on West, and his shooting were relevant factors for a jury to consider when determining whether West acted wantonly. West was free to present proof and argue to the jury that he could not have consciously disregarded the relevant risks considering the stress of those circumstances. However, while the situation was undoubtedly stressful, it did not involve the type of circumstances that would render one wholly incapable of weighing and disregarding the risks of a chosen course of conduct. We thus cannot say that it was unreasonable for the jury to conclude, as it did, that West did in fact consciously disregard a substantial and unjustifiable risk that his conduct would result in injury and property damage. As such, the trial court properly left to the jury the determination of whether West acted wantonly, and there was no error in the denial of his motion for directed verdict.
II. The Trial Court Did Not Err In Denying A Choice-of-Evils Instruction On The Criminal Mischief Charges.
West next argues that the trial court erred in failing to provide a choice- of-evils instruction for the criminal mischief charges. West contends such an instruction was warranted because he testified his conduct was an effort to avoid being shot again. West tendered jury instructions that included a choice- of-evils instruction for the criminal mischief charges, and his argument is therefore preserved. Brafman v. Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020). We review a trial court's refusal to provide a requested instruction for abuse of discretion. Id. A trial court abuses its discretion when its decision is
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"arbitrary, unreasonable, unfair, or unsupported by sound legal principles."
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We conclude the trial court correctly denied the choice-of-evils instruction on the criminal mischief charges. Under the choice-of-evils defense, "conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged." KRS 503.030(1). However, this defense is unavailable for a charge for which wantonness or recklessness suffices to establish liability if "the defendant is wanton or reckless in bringing about a situation requiring the conduct" for which he is charged. KRS 503.030(2). The LRC Commentary to the statute further explains:
[F]or offenses having wantonness or recklessness as the culpable mental state the defense of "choice of evils" is . . . unavailable to a defendant who acts wantonly or recklessly in creating a situation that requires a choice of evils. . . . [T]he possibility that this defense can be used even though a defendant has been wanton or reckless in his conduct is eliminated for offenses condemning conduct based on
wantonness or recklessness.
Here, the choice-of-evils defense was unavailable to West because he wantonly brought about the situation giving rise to the choice of evils he faced. It was West's theft of the car that brought about his need to choose between two evils, i.e., between facing a confrontation with his armed victim or escaping by driving away. West acknowledged at trial that he had stolen the car at issue, which was taken while the car was running and its owner, Hall, was
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inside the gas station. Such circumstances plainly carried a substantial risk of heated pursuit by the victim. West thus also acknowledged that he not only acted wantonly or recklessly in creating the situation that led to the confrontation and his ensuing attempt to escape through the parking lot, but that indeed his conduct was intentional. Thus, because the criminal mischief charges required a finding that West acted wantonly, and because West's acknowledgment of stealing the vehicle left no question that he acted wantonly and indeed intentionally in setting in motion the events leading to the charged conduct, the choice-of-evils defense was unavailable to him. The trial court thus did not err in refusing to provide that instruction.
III. The Trial Court Did Not Err In Allowing The Prosecution To Ask West Whether He Had Consulted With Counsel Before Acknowledging That He Stole The Car.
West next asserts the trial court erred in allowing the Commonwealth to ask him whether he had consulted with his attorneys before admitting that he stole Hall and McKinnie's vehicle. West objected, and the trial court overruled the objection. The prosecution then essentially led West through a Boykin- colloquy line of questioning, inquiring whether he 1) understood the jury would find him guilty of receiving stolen property, 2) was acting knowingly, intelligently, and voluntarily in acknowledging guilt, 3) had not been forced or threatened, and 4) was not under the influence of any substance or mental health condition impeding his ability to act knowingly and intelligently. See Boykin v. Alabama, 395 U.S. 238 (1969). West asserts this impermissibly allowed the prosecution to inquire into communications he had with his
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attorneys about strategy and the substance of whether his attorneys had adequately advised him. West objected when the prosecution began this line of questioning, and thus his objection is preserved. Kentucky Rule of Evidence ("KRE") 103(a)(1). We generally review allegations of error in the admission of evidence for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky. 2018).
We find no error in the trial court's ruling. The attorney-client privilege is set forth in KRE 503(b), which provides that "[a] client has a privilege to refuse to disclose . . . a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client." It is well established that this privilege generally protects the contents of the privileged communications, not the fact of whether the client has communicated with an attorney for the purpose of obtaining legal advice. See Robert G. Lawson, The Kentucky Evidence Law Handbook, § 5.05[5][a] (2023) ("Generally, . . . the fact of consultation with or employment of an attorney . . . [does] not fall within the protection of the attorney-client privilege.") (quoting Paul C. Giannelli, Understanding Evidence 592 (3d ed. 2009)). Here, the prosecution did not inquire into the content of West's communications with his counsel, but rather only asked whether he had consulted with counsel. Thus, because this limited line of questioning in no way required West to divulge confidential communications with his attorney, it did not violate the attorney-client privilege.
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We further note that West acknowledges the prosecution's line of questioning was "identical to the 'Boykin colloquy' that a judge would ask a defendant" in the process of accepting a guilty plea. Judges may no more invade the attorney-client privilege than any other party. And judges across the Commonwealth routinely ask criminal defendants every day whether they have consulted with counsel before agreeing to plead guilty to a crime. It is plain such an inquiry is not a violation of the attorney-client privilege. Finally, we also find West's reliance on Stinnett v. Commonwealth unavailing. In Stinnett, we found that a letter to the defendant from his counsel fell squarely within the attorney-client privilege. 364 S.W.3d 70, 86 (Ky. 2011). In contrast, the present circumstances do not involve the substance of West's communications with his counsel, but only the fact that he had communicated with counsel. Thus, because the prosecution's questioning did not require West to disclose the content of confidential communications with counsel, there was no violation of the attorney-client privilege and the trial court did not err in allowing the questioning.
IV. The Admission of Alleged Other Bad Acts Evidence Does Not Warrant A New Trial.
West next argues that the trial court erred in admitting testimony that the Life360 app indicated West was driving between 80 and 100 miles per hour, that West had tried to swipe McKinnie's Cash App card at a store, and that surveillance footage showed West stealing a bottle of liquor from the store after the card swipe was unsuccessful. West objected to all of this testimony on grounds it constituted inadmissible prior bad acts. As such, his argument
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is preserved and we review for abuse of discretion in the admission of this evidence. KRE 103(a)(1); Mason, 559 S.W.3d at 339.
KRE 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts "to prove the character of a person in order to show action in conformity therewith." However, under the Rule such evidence may be admitted if "offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
KRE 404(b)(1). Such evidence may also be admitted if it is "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." KRE 404(b)(2). There is a solid argument that each of these instances was inextricably intertwined with the facts of this case. We conclude that even if we were to determine they did not meet the KRE 404(b) exceptions, there was no error in the admission of the testimony regarding West's alleged speeding and his stealing of the liquor bottle. When that evidence was admitted, the trial court specifically admonished the jury that the testimony was not to be used to infer guilt for the charges he faced at trial. We apply a presumption that such an admonition generally cures any improper reference to the prior bad act unless (1) "there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant" or (2) "the question was asked without a factual
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basis and was 'inflammatory' or 'highly prejudicial.'" Cisco v. Commonwealth,
730 S.W.3d 800, 806 (Ky. 2025) (citation omitted). Here, we find no indication that the jury would have been unable to follow the trial court's admonition not to consider the speeding and stealing in determining West's guilt for the charged offenses. Nor was the inadmissible conduct the type which would be devastating to a defendant. To the contrary, both were relatively minor offenses that were highly unlikely to bear any significance to the jury as it deliberated guilt. For this same reason, we also cannot say the evidence was inflammatory or highly prejudicial. Finally, there is also no indication that there was no factual basis for the allegation that West had been speeding—as indicated on the app—or that he had stolen a bottle of liquor—as indicated on the surveillance video. Thus, because the trial court provided an appropriate admonishment after the introduction of this evidence, any error in its admission was cured and thus does not warrant a new trial. While the trial court provided an admonition following testimony regarding the speeding and stealing of liquor, it declined West's request for such an admonition regarding the testimony that he had attempted to use McKinnie's Cash App card. The trial court reasoned that the evidence was admissible because it was "part and parcel" of what occurred on the day in question. We agree.
As noted above, KRE 404(b)(2) allows the admission of prior bad acts evidence where that evidence is "so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished
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without serious adverse effect on the offering party." We have previously held that this exception "allows the Commonwealth to present a complete, unfragmented picture of the crime and investigation." Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003). Such was the case here. The detective testified that in the course of his investigation, he learned that West had attempted to use McKinnie's Cash App card. The detective therefore contacted Cash App to find the location of the store where that occurred. He then went to that store and obtained surveillance video that showed West arriving in the car in question. Thus, because West's attempted use of the Cash App card was necessary to explain to the jury how law enforcement came into possession of surveillance video showing West using the stolen car, admission of that evidence was permissible under KRE 404(b)(2). Accordingly, we find no error in the admission of prior bad acts evidence at trial that would warrant a new trial.
V. Cumulative Error In The Penalty Phase Does Not Warrant Remand.
Finally, West also argues two alleged errors warrant a new penalty phase. First, West asserts error occurred when the prosecutor appealed to regional prejudice in the penalty phase closing argument with the following statement:
We don't want this trouble in Kenton County. Nobody at Kroger's wants this trouble. Nobody in Fort Mitchell wants this trouble. We don't need stolen cars being brought over here from Ohio. We don't need driving like a lunatic when somebody tries to take that stolen car back from him. And this community doesn't need ten-time convicted felons crashing into parked cars, a stolen car in a crowded parking
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lot of Fort Mitchell Kroger. But what we really don't need is people with ten prior felony convictions coming to Kenton County and committing any more. I wish there was some way that we could keep his felonies in Boone County or Grant County so that this community didn't get plagued with his criminal behavior. Yet here we are. And this is where you get the opportunity to protect this community from Mark West, a man who obviously has not learned his lesson and has no interest in abiding by the law.
Second, West argues error occurred when the jury received paper exhibits in the penalty phase that included original charges against West that were later dismissed or amended down. West asserts that the cumulative effect of these errors warrants a new penalty phase.
West acknowledges these errors are unpreserved and therefore requests palpable error review under Rule of Criminal Procedure ("RCr") 10.26. In considering whether an error is palpable, we assess
"whether on the whole case there is a substantial possibility that the result would have been any different." To be palpable, an error must be "easily perceptible, plain, obvious and readily noticeable." A palpable error must be so grave that, if uncorrected, it would seriously affect the fairness of the proceedings. "It should be so egregious that it jumps off the page . . . and cries out for relief."
Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted). Even where an error is palpable, relief is warranted only where it results in manifest injustice. Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). An error results in manifest injustice if it "so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.'" Conrad v. Commonwealth, 534 S.W.3d 779, 783 (Ky. 2017) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).
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We agree with West that the prosecutor's reference to him as someone coming from outside Kenton County to commit crimes in Kenton County was error. In Taulbee v. Commonwealth, the prosecutor highlighted to an Estill County jury that the defendant and his lawyer were from Clark County. 438 S.W.2d 777 (Ky. 1969). We found this to be error:
"Counsel in argument to the jury should avoid saying anything designed as, or having the effect of, an appeal to the
. . . sectional prejudices of the jury."
It seems plain that the prosecutor's reference to the fact that the defendant and his counsel hailed from Clark County and appeared in Estill County could have had no purpose other than to arouse the local or sectional prejudice of the jury. Id. at 779 (citation omitted).
The same is true here. In his closing argument, the prosecutor specifically referred to West as someone "with ten prior felony convictions coming to Kenton County and committing more." This reference to West as someone from outside Kenton County did not bear significant relevance to the jury's determination of a sentence for West's crimes, but rather depicted him before the Kenton County jury as an outsider in such a manner as to potentially invoke regional prejudice.
Having thus determined that the statement was error, we must consider whether it warrants remand for a new penalty phase. In cases where a defendant does not object to prosecutorial misconduct, we reverse only if the
"misconduct was flagrant and was such as to render the trial fundamentally unfair." Barrett v. Commonwealth, 677 S.W.3d 326, 332 (Ky. 2023) (citation omitted). In making this determination, we consider four factors:
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(1) [W]hether the remarks tended to mislead the jury or to prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused.
Id. at 334.
Here, the prosecutor's comments tended to prejudice West insofar as they may have invoked regional prejudice against him as a basis for sentencing. There is also no indication the comments were mistaken, but rather appear to have been deliberately placed before the jury. These two factors arguably weigh in West's favor. That said, the comments were also isolated, occurring only once during the closing argument of the penalty phase. The evidence against West was also strong. He admitted he stole the vehicle in question, and there was no dispute he drove away from the gas pumps, threw Hall from the car, and careened into surrounding vehicles. Thus, the factors of isolatedness and strength of the evidence weigh in favor of the Commonwealth. When faced with a circumstance such as this where the relevant factors are essentially balanced, we return to "the general test for whether relief for prosecutorial misconduct is proper: an examination of the trial as a whole to determine if the improper comments undermined the essential fairness" of the trial. Id. at 335. (quoting Mayo v. Commonwealth, 322 S.W.3d 41, 57 (Ky. 2010)). While we acknowledge that the jury recommended more than the maximum possible sentence, we also do not conclude that the prosecutor's brief invocation of regional prejudice was responsible for that result, or otherwise undermined the essential fairness of the trial. As the prosecution
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highlighted in its closing argument, West had ten prior felony convictions in seven separate cases spanning more than fifteen years. It is likely this record and pattern of recidivism played a significant role in the penalty recommended by the jury.
In addition, West's crime was one in which he inflicted significant injury and damage on victims who were absolute strangers. He did not know Hall and McKinnie when he stole their vehicle from a gas station parking lot before severely damaging it and causing significant physical injuries to Hall after being confronted. He also did not know the other persons whose vehicles he damaged. Crimes in which the victims are strangers to the defendant may result in significant sentences because they arouse a heightened sense of horror that any of the jurors themselves could have been the victims of the defendant's conduct. This too likely impacted the heightened penalty recommended by the jury. As such, we cannot conclude the prosecutor's isolated appeal to regional prejudice caused the jury to recommend a sentence different than it would have in the absence of such a comment, or otherwise undermined the essential fairness of the trial. Accordingly, while erroneous, we do not find the prosecutor's comment to constitute flagrant error warranting reversal.
West also contends error occurred in the penalty phase because the trial exhibits listed charges against West which were later amended down or dismissed. The exhibits listed three prior PFO charges that had been dismissed, a count of first degree burglary amended to third degree, and a
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count of second degree assault amended to fourth degree. As the Commonwealth acknowledges, this was also error. Martin v. Commonwealth,
409 S.W.3d 340, 348 (Ky. 2013) ("[T]he jury cannot hear evidence during the penalty phase of charges that have been dismissed or amended to other offenses."). However, we have previously concluded that where a jury may have seen dismissed or amended charges listed on an exhibit, but there was no testimonial or argumentative reference to those charges, the error was not palpable. Id. at 348-49. Here, West acknowledges that no witness testified regarding the amended or dismissed charges. Nor were they mentioned in the Commonwealth's closing argument. And as noted above, the significant sentence recommended by the jury is more likely the result of West's extensive criminal record and the nature of his crimes than the few dismissed and amended charges listed among the exhibits. Thus, we do not conclude that the inclusion of dismissed and amended charges on the exhibits constituted palpable error. See id. at 349 (finding no palpable error where the circumstances of the case strongly suggested "that the maximum sentence resulted from the nature of this particular conviction in combination with Appellant's several prior convictions for drug-related crimes, rather than the jury's awareness of the dismissed or amended charges underlying his criminal past.").
Finally, West also argues that these two errors in the penalty phase constitute cumulative error warranting reversal. Under the cumulative error doctrine, "multiple errors, although harmless individually, may be deemed
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reversible if their cumulative effect is to render the trial fundamentally unfair."
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Here, the two errors that occurred in the penalty phase were the prosecutor's appeal to regional prejudice and the submission of exhibits that listed dismissed and amended charges. We cannot say that these two errors, when considered together, rise to the level of rendering West's trial fundamentally unfair. Quite simply, the prosecutorial misconduct was isolated and the listing of dismissed and amended charges may not have even been seen by the jury. Nor were the dismissed and amended charges of a nature that they would have inflamed the jury. Accordingly, because we perceive no cumulative error that would have rendered the trial fundamentally unfair, remand is not warranted.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the Kenton Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General