MBUGUA (PETER) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: MARCH 25, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000213-MR
PETER MBUGUA
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE DANIEL T. GUIDUGLI, SPECIAL JUDGE
ACTION NO. 08-CR-00276
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND WINE, JUDGES.
ACREE, JUDGE: On November 21, 2008, a Boone Circuit Court jury found the
appellant, Peter Mbugua, guilty of second-degree manslaughter. The Boone
Circuit Court entered a judgment consistent with the jury’s verdict and sentenced
Mbugua to nine (9) years imprisonment. Mbugua now appeals his conviction to
this Court, asserting four claims of reversible error: (1) he was entitled to a
judgment of acquittal because the Commonwealth failed to establish that he acted
wantonly, the required mens rea for second-degree manslaughter; (2) he was
denied the right to effective cross examination and a fair opportunity to introduce
character evidence; (3) he was unduly prejudiced by the admission of irrelevant
evidence admitted contrary to KRE1 404(b); and (4) he was denied due process
during the trial’s penalty phase as a result of the prosecutor’s misleading statement
of law during the Commonwealth’s closing argument. Finding no error, we affirm.
I. FACTS AND PROCEDURE
On March 4, 2008, Mbugua, a sixty-year-old truck driver, was involved in a
motor vehicle accident that resulted in the death of twenty-two year old Joseph
Lonneman. The accident occurred when Mbugua’s was unable to bring his tractortrailer to a stop after he exited Interstate 75 and proceeded down the Richwood exit
ramp. As he proceeded toward the intersection at the end of the ramp, Mbugua
swerved into the ramp’s left-hand shoulder. Mbugua entered the intersection,
running the red light, and collided with Lonneman who was riding a motorcycle.
Lonneman died shortly thereafter at a nearby hospital.
After the accident, members of the Boone County Sheriff’s office
investigated. Mbugua informed them that his brakes had failed. The officers
instructed Mbugua to follow them on the interstate highway to a nearby weigh
station. Mbugua did so, traveling at a speed of approximately thirty miles per
hour.
1
Kentucky Rules of Evidence.
-2-
An inspection of the tractor and trailer at the weigh station revealed multiple
violations of state law and of the Federal Motor Carrier Safety Regulations, 49
C.F.R.2 §§ 392, 393, 396 (2010). Twenty-three violations were cited, nine of
which were brake-related. Combined, Mbugua’s tractor and trailer had ten sets of
pneumatic brakes, six on the tractor and four on the trailer, corresponding to the
tractor’s three axles and the two axles on the trailer. The trailer’s brakes were
completely inoperative as a result of a disconnected airline. Only three of the
tractor’s brakes were fully operational, two were out of adjustment, and one was
completely inoperable.
In May of 2008, Mbugua was indicted on a charge of second-degree
manslaughter. Mbugua’s case proceeded to trial. At the conclusion of the
Commonwealth’s case, Mbugua moved for a directed verdict of acquittal on the
grounds that the Commonwealth failed to prove Mbugua caused Lonneman’s death
by wanton or reckless conduct. The court denied Mbugua’s motion. He was
convicted and sentenced to a prison term of nine years. Mbugua then filed a
motion for judgment notwithstanding the verdict which was also denied. This
appeal followed. As additional facts become relevant, they will be discussed.
II. ANALYSIS
Mbugua argues he was entitled to a directed verdict of acquittal because the
Commonwealth failed to prove he acted either wantonly or recklessly. Mbugua
also contends multiple evidentiary errors occurred during the trial’s guilt phase.
2
Code of Federal Regulations.
-3-
Finally, Mbugua asserts that the prosecutor’s misconduct during the
Commonwealth’s closing argument in the trial’s penalty phase warrants reversal.
We examine each of Mbugua’s claims of error in turn.
A. Directed Verdict of Acquittal
Mbugua contends the Commonwealth failed to produce any evidence
that he wantonly or recklessly caused Lonneman’s death. We disagree.
“The Commonwealth bears a burden of proof in establishing each element of
the charged crime, else a motion for a directed verdict by the defendant must be
properly entertained.” Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky.
1986). On a motion for a directed verdict, the trial judge must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth.
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). The standard for
appellate review of a denial of a motion for a directed verdict based on insufficient
evidence is if, under the evidence as a whole, it would be clearly unreasonable for
a jury to find the defendant guilty, he is entitled to a directed verdict of acquittal.
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983). The same standard is
applied when this Court reviews a trial court’s denial of a motion for judgment
notwithstanding the verdict. Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d
256, 261 (Ky. App. 2007).
Having reviewed the record, we decline to reverse Mbugua’s conviction
because the Commonwealth presented sufficient evidence that Mbugua acted
-4-
wantonly resulting in the death of another human being. Consequently, it was
reasonable for the jury to convict Mbugua of second-degree manslaughter.
At trial, the Commonwealth presented testimony from two deputies of the
Boone County Sheriff’s Office, John Christmann and Frank Faulkner, who
inspected Mbugua’s tractor-trailer immediately following the accident.
Deputy Christmann, a certified commercial vehicle inspector, testified that
after Mbugua arrived at the weigh station, he inspected the undercarriage of
Mbugua’s tractor-trailer. He explained to the jury that of the ten sets of brakes on
Mbugua’s vehicle, only three sets of brakes were operable under federal standards.
Deputy Christmann testified that the four brakes located on the trailer were
completely inoperable as a result of a disconnected blue airline. As for the
tractor’s brakes, Deputy Christmann explained three were fully operational, two
were out of adjustment, and one was completely inoperable.
Deputy Christmann addressed federal regulations that establish the standard
for brakes on commercial vehicles, explaining specifically how each brake met or
failed to meet the standard. The only fully operational brakes were the two brakes
located on axle one, the front steering axle, and the left brake on the tractor’s axle
two. Deputy Christmann also testified how braking efficiency is reduced when
brakes are out of adjustment. He explained that drivers can feel that brakes are not
tight and fully operational by pressing the pedal. He further indicated that several
of Mbugua’s brakes were rusted over from lack of friction.
-5-
Deputy Frank Faulkner, an accident reconstructionist, testified that he was
unable to determine the speed of Mbugua’s truck as it entered the intersection
because no skid marks were visible. In fact, he could find no evidence of braking
at the scene of the accident. Deputy Faulkner did testify, however, that he
observed Mbugua driving to the weigh station and saw that Mbugua did brake
upon entering the scales and was able to stop. When Deputy Faulkner arrived at
the weigh station, he questioned Mbugua about the state of his tractor-trailer, and
reviewed Mbugua’s log book. Mbugua informed Deputy Faulkner that, on the day
of the collision, he conducted the pre-trip inspection of his tractor-trailer, as
required by federal law,3 which included checking the truck’s brakes, but found
nothing wrong. Mbugua’s inspection was reflected in his log book which he had
signed that day. Mbugua’s log book contained daily notations indicating Mbugua
had been driving the truck for several days before the accident.
After the interview, Deputy Faulkner examined Mbugua’s tractor-trailer,
including the brakes. He confirmed Deputy Christmann’s testimony concerning
the condition of Mbugua’s brakes. Deputy Faulkner testified that in all his years
he had never seen brakes in such poor condition. Additionally, Deputy Faulkner
testified that the rust on Mbugua’s brakes indicated inadequate pressure and
friction for stopping.
3
49 C.F.R. § 396.13 states that “[b]efore driving a motor vehicle, the driver shall (a) [b]e
satisfied that the motor vehicle is in safe operating condition.” See also Reynolds v. Ozark
Motor Lines, Inc., 887 S.W.2d 822, 825 (Tenn. 1994) (noting that 49 C.F.R. § 396.13(a) requires
a truck driver to “perform a pre-trip inspection which satisfies the driver that certain critical parts
of the truck are operating properly”).
-6-
Upon seeing the poor condition of Mbugua’s brakes, Deputy Faulkner was
compelled to investigate further. Consequently, he collected repair receipts from
Mbugua and began contacting service centers that worked on Mbugua’s tractortrailer prior to the accident.
Matthew Perkins, a prior manager at Traveler’s Center of America in
Pennsylvania, testified that on February 21, 2008, Mbugua brought his truck to the
Traveler’s Center and asked a mechanic to disconnect the battery and reset the
brake indicator light that would not go out. Perkins complied with Mbugua’s
request and also performed a routine oil change. As part of the oil change, a
mechanic typically conducts a visual inspection of the vehicles’ brakes. Perkins
confirmed, however, that the Traveler’s Center did not service Mbugua’s brakes
and was unaware if the brake indicator light remained on after being reset.
Carl Spencer, from the Virginia Truck Center, testified that on February 27,
2008, Mbugua brought his truck to the Truck Center to have the front left steer
axle repaired. Spencer testified that Mbugua’s tractor-trailer was in “rough”
condition having been brought to the truck center on a wrecker after the left tire
and axle had been damaged and caught fire. Spencer indicated that Mbugua
should have felt the problem with the steering axle and had the truck repaired
sooner. Instead, Mbugua continued to drive the truck until the more significant
damage occurred. Consequently, the repair which would have cost $500 to $1000
dollars ultimately cost $3,845.20 dollars.
-7-
On March 2, 2008, Mbugua had his truck repaired at Traveler’s
Center of America in New York. Curt Novak testified to quoting Mbugua a price
for the replacement of his red emergency air line that connects the tractor to the
trailer’s brakes. However, Mbugua was not satisfied with the price and left.
Several hours later, Mbugua returned and had the Traveler’s Center replace the red
air line. Later that day, Mbugua called and complained that his blue air line was
broken. Novak told Mbugua the truck would need to be towed in order to get it
safely back to the shop. The next day, Mbugua showed up at the repair station
driving the truck. Mbugua showed Novak the broken blue air line, but declined to
have it replaced because the Traveler’s Center would not repair it for free. Novak
identified the disconnected blue air line taken from the scene of the accident as the
same blue air line Mbugua previously brought to the Traveler’s Center repair shop.
A witness for the defense and a certified mechanic, Wayne Smith,
testified regarding Mbugua’s ability to brake. Smith stated that stopping distance
is increased when brakes are out of adjustment and testified that brakes were in
ideal adjustment when “pushrods” stick out of the brakes between one inch and
one and one-fourth inches. Prior prosecution testimony was that pushrods on two
of the tractor’s sets of brakes exceeded the federal regulatory maximum of two
inches. Smith believed Mbugua’s brakes were so far out of adjustment that they
provided “no braking whatsoever.” He also testified that when properly adjusted,
trailer brakes were not needed to stop because the tractor brakes should do most of
the stopping. Therefore, he postulated that if the all Mbugua’s tractor brakes had
-8-
worked properly, the accident would not have occurred despite the fact that the
trailer brakes were disconnected.
Additional testimony was presented regarding the brakes and their repair
history, but we have set forth a sufficient sampling for our purposes.
“Second-degree manslaughter requires proof that the defendant ‘wantonly
cause[d] the death of another person.’” Elliott v. Commonwealth, 976 S.W.2d 416,
418 (Ky. 1998) (quoting KRS4 507.040(1)). “A person acts wantonly with respect
to a result or to a circumstance described by a statute defining an offense when he
is aware of and consciously disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists” and the defendant’s conduct
constitutes a gross deviation from the applicable standard of care. KRS
501.020(3). Wantonness “presupposes an awareness of the creation of substantial
homicidal risk, a risk too great to be deemed justifiable by any valid purpose that
the actor’s conduct serves.” Brown v. Commonwealth, 174 S.W.3d 421, 425 (Ky.
2005). Accordingly, for a jury to find a defendant guilty of second-degree
manslaughter, the Commonwealth must prove: (1) the conduct in question
involved a substantial and unjustifiable risk of death to human life; (2) the
defendant, in causing the death in question, was aware of and consciously
disregarded that risk; and (3) his disregard constituted a gross deviation from the
standard of conduct that a reasonable person would have observed in the situation.
KRS 501.020 (1974 cmt.); KRS 507.040(1).
4
Kentucky Revised Statutes.
-9-
Alternatively, reckless homicide requires the jury to find that a defendant
caused the death of another through recklessness. KRS 507.050(1). “A person
acts recklessly with respect to a result or to a circumstance . . . when he fails to
perceive a substantial and unjustifiable risk that the result will occur or that the
circumstance exists.” KRS 501.020(4). The difference between wanton conduct
and reckless conduct turns on the defendant’s state of mind. More simply, “wanton
conduct involves conscious risk-taking while reckless conduct involves inadvertent
risk-creation.” KRS 501.020 (1974 cmt).
While the Commonwealth must prove “every element of the defendant’s
guilty beyond a reasonable doubt . . . we have long held that mens rea, specifically
intent, can be inferred from circumstances.” Commonwealth v. Wolford, 4 S.W.3d
534, 539 (Ky. 1999); see also Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky.
2002) (emphasizing that “because a person is presumed to intend the logical and
probable consequences of his conduct, a person’s state of mind may be inferred
from his actions preceding and following the charged offense”). “The testimony of
a single witness which is assigned a likelihood of truth is sufficient to support a
finding of guilty and would justify a verdict in accordance with such testimony,
even though a number of witnesses may have testified to the contrary if, after
consideration of all the evidence in the case, the factfinder assigns greater belief to
the accuracy and reliability of the one witness.” Beaumont v. Commonwealth, 295
S.W.3d 60, 67 (Ky. 2009) (quoting Murphy v. Sowders, 801 F.2d 205, 210 (6th
Cir. 1986)). This Court lacks the authority to re-weigh the evidence or insert its
-10-
judgment in place of the jury. Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.
1994). As explained by the United States Supreme Court, appellate review
does not require a court to “ask itself whether it believes
that the evidence at the trial established guilt beyond a
reasonable doubt.” Woodby v. INS, 385 U.S., at 282, 87
S.Ct., at 486 (emphasis added). Instead, the relevant
question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Johnson v.
Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625. This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In the case before us, we must determine whether there was sufficient
evidence to support a finding that Mbugua wantonly caused Lonneman’s death.
The conduct in question is Mbugua’s act of driving a tractor-trailer on public
roadways with inoperable and inadequate brakes. The jury could reasonably
conclude that driving such a vehicle on an interstate with only three out of ten sets
of brakes properly functioning under non-emergency circumstances constituted a
“substantial and unjustifiable risk of death to human life.” See Brown, 174 S.W.3d
at 427 (stating that the “homicidal risk of entering an intersection against a red
light at a high rate of speed is obviously high” and the defendant lacked a social
utility justifying driving his vehicle in such a manner, “e.g., rushing a dying person
to a hospital”). As noted by Deputy Faulkner, tractor-trailers are not designed to
stop on a dime, which is one of the reasons they are equipped with multiple sets of
-11-
brakes. Further, Smith confirmed that brakes that are out of adjustment provide no
braking whatsoever and had all tractor brakes worked properly, the accident would
not have occurred. Driving a tractor-trailer on a public highway with inadequate
brakes presents “a risk too great to be deemed justifiable by any valid purpose.”
Brown, 174 S.W.3d at 425.
Sufficient evidence also was presented from which the jury could reasonably
conclude that Mbugua was aware of and intentionally disregarded that risk. Eleven
days before the accident, Mbugua informed a mechanic that his brake indicator
light was on, alerting Mbugua that his brakes needed attention, but asked the
mechanic to re-set his brake light rather than service the brakes. Just two days
before the accident Mbugua informed another mechanic that his blue airline was
disconnected, thereby disabling the trailer’s brakes. And yet Mbugua continued to
drive the vehicle for two more days during which, according to testimony, he
should have been able to feel the reduced braking ability when he attempted to
apply the brakes. On the day of the accident, he had conducted a pre-trip
inspection which included checking the truck’s brakes.
The jury was free to consider this evidence in combination with evidence of
the numerous safety violations found upon inspection immediately after the
accident, and the testimony from multiple mechanics regarding Mbugua’s prior
unwillingness to repair his truck. Based on the record, we cannot say that it was
unreasonable for the jury to infer that Mbugua was aware of the poor condition of
his vehicle, including his brakes, and that yet he chose to drive the truck on public
-12-
highways and endanger the public. Furthermore, it was not unreasonable for the
jury to conclude that Mbugua’s disregard of the risk constituted a gross deviation
from the standard of conduct that a reasonable person would have observed in the
situation. See Hookie v. State, 136 S.W.3d 671, 676 (Tex. App. 2004) (finding that
a “jury could have reasonably concluded [that a truck driver’s’] continued
operation of the truck with brakes out of adjustment constituted a gross deviation
from the standard of care an ordinary person would have exercised under those
circumstances”).
Viewing all fair and reasonable inferences from the evidence in favor
of the Commonwealth, and deferring to the jury’s determinations as to the
credibility of the witnesses and the weight of the testimony, we find that the
Commonwealth presented sufficient evidence for the jury to reasonably conclude
that Mbugua was aware of and consciously disregarded a substantial and
unjustifiable risk that his inoperable and inadequate brakes would cause the injury
or the death of another person. See Beaumont v. Commonwealth, 295 S.W.3d 60,
70-71 (Ky. 2009). Therefore, the trial court did not err in denying Mbugua’s
motion for a directed verdict of acquittal and motion for a judgment
notwithstanding the verdict.5
B. Court’s Refusal to Allow Mbugua’s Introduction of Character Evidence
Mbugua next argues that the trial court abused its discretion by not allowing
him to adequately refute improper character evidence. Specifically, Mbugua
5
Based on our conclusion, Mbugua’s additional argument is moot that the Commonwealth
presented insufficient evidence that he recklessly caused Lonneman’s death.
-13-
contends that the Commonwealth “opened the door” to character evidence
normally excluded by KRE 404(a) when its witness, Andy McBeak, a personal
friend of Lonneman, testified on direct examination regarding Lonneman’s good
character. Consequently, Mbugua asserts he was entitled to rebut the improper
character evidence by inquiring into Lonneman’s prior traffic history on crossexamination. We disagree.
The Commonwealth elicited the following testimony from McBeak on direct
examination, without objection.
Q. Was [Lonneman] a fairly responsible guy?
A. Of course, yes. I felt safer with him, more than anybody
else, even my own family members. He was my “big brother.”
And I felt safe with him no matter what.
...
Q. In your opinion, could [Lonneman] handle his bike pretty
well?
A. Oh yeah. Oh yeah. [Lonneman] was one of the types that
he could. Didn’t matter what he hopped in – car, truck,
construction vehicle – if it could be driven he could drive it and
he could drive it flawlessly. For some he just had that niche.
In reviewing a trial court’s evidentiary ruling, we apply an abuse of
discretion standard. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575,
577 (Ky. 2000). The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
KRE 404 provides, in pertinent part:
-14-
(a) Evidence of a person’s character or a trait of character
is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:
(2). Evidence of a pertinent trait of character of the
victim of the crime offered by an accused, other than
in a prosecution for criminal sexual conduct, or by the
prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim offered by
the prosecution in a homicide case to rebut evidence
that the victim was the first aggressor.
KRE 404(a)(2) prohibits the Commonwealth from introducing evidence of the
victim’s good character for the purpose of proving conduct in conformity therewith
unless and until the defendant has put the victim’s character in issue. Caudill v.
Commonwealth, 120 S.W.3d 635, 659-60 (Ky. 2003); Robert G. Lawson, The
Kentucky Evidence Law Handbook § 2.15[4][c] (4th ed. LexisNexis 2003) (“The
prosecution may not introduce evidence of a victim’s character until the accused
initiates an issue over the victim’s character by calling witnesses to testify to the
victim’s bad character.”).
The Commonwealth argues it was proper for it to extract testimony
regarding Lonneman’s good character to refute Mbugua’s claim that Lonneman’s
irresponsible and poor driving skills contributed to the accident. However, prior to
McBeak, no testimony had been offered by Mbugua regarding Lonneman’s
character. Under similar circumstances, such testimony has been deemed
inadmissible. See Caudill, 120 S.W.3d at 659-60 (finding it was error for the
Commonwealth to admit evidence of the victim’s cautious character prior to the
defendant making the victim’s character an issue); Fairrow v. Commonwealth, 175
-15-
S.W.3d 601, 604-05 (Ky. 2005). However, Mbugua did not object to this
testimony and its admissibility is not directly in issue.
Rather, Mbugua contends that the Commonwealth’s introduction of
improper character evidence permitted him, pursuant to the doctrine of curative
admissibility, to ask McBeak about Lonneman’s specific traffic violations. The
trial court’s refusal to allow such cross-examination, Mbugua argues, was
reversible error. We disagree.
The Kentucky Supreme Court has described the doctrine of curative
admissibility as follows:
Wigmore distilled the issue to this question: “If the one
party offers an inadmissible fact that is received, may the
opponent afterwards offer similar facts whose only claim
to admission is that they negative or explain or
counterbalance the prior inadmissible fact?” See 1
Wigmore, Evidence in Trials at Common Law, 731
(Tillers’ rev.1983). In a typical case, a witness will make
an inadmissible assertion and the opposing party is then
permitted to introduce evidence to the contrary.
Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky. 2002); see also Johnson v.
Commonwealth, 105 S.W.3d 430 (Ky. 2003) (finding the introduction of
inadmissible character evidence may open the door to otherwise inadmissible
evidence of specific instances of conduct offered by the opposing party to negate,
explain, or counterbalance).
Additionally, KRE 405(b) provides that “[o]n
cross-examination of a character witness, it is proper to inquire if the witness has
heard of or knows about relevant specific instances of conduct.” KRE 405(b);
Lawson, The Kentucky Evidence Law Handbook § 2.15[4][c] (“[C]ross-exaimers
-16-
may ask character witnesses if they have heard or know about specific acts that are
relevant to the character trait to which they have testified on direct.”).
Under the abuse of discretion standard, “trial courts retain broad
discretion to regulate cross-examination” and set appropriate boundaries.
Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997); Bratcher v.
Commonwealth, 151 S.W.3d 332, 342 (Ky. 2004). In setting such boundaries, the
trial court must remain cognizant of the remaining rules of evidence, particularly
KRE 403. See Commonwealth v. Prater, 324 S.W.3d 393, 400 (Ky. 2010)
(emphasizing trial court’s retention of discretion to allow Commonwealth to attack
the witness’s statement or to require “that the matter drop on grounds of issue
proliferation, jury confusion, or waste of time”); see also Bearint ex rel. Bearint v.
Dorel Juvenile Group, 389 F.3d 1339, 1349 (11th Cir. 2004) (“[E]xtent to which
otherwise inadmissible evidence is permitted must correspond to the unfair
prejudice created [and] trial court must also weigh the need for and the value of the
rebuttal evidence against the prejudice for undue delay, confusion and prejudice.”);
Manual v. City of Chicago, 335 F.3d 592, 597 (7th Cir. 2003) (“Even after the door
has been opened, the district court is required to weigh the need for and value of
curative admissibility of previously inadmissible evidence . . . against the potential
for undue delay, confusion, and prejudice.”).
The Commonwealth “opened the door” when its witness, McBeak, offered
impermissible character evidence regarding Lonneman. On cross-examination, the
trial court allowed Mbugua to ask McBeak if he was aware of Lonneman’s traffic
-17-
history and the existence of traffic violations, but prohibited Mbugua from eliciting
further specifics. Consequently, despite Mbugua’s argument to the contrary, he
was permitted to introduce evidence that Lonneman had a history of traffic
violations to deflect the Commonwealth’s character evidence that Lonneman was a
responsible person and a safe driver. The trial court, in permitting this line of
inquiry, simply exercised its discretion by regulating the scope of Mbugua’s crossexamination to limit jury confusion and waste of time.
We find no abuse of discretion in the trial court’s evidentiary ruling.
C. KRE 404(b) Other Wrongs or Bad Acts Evidence
Mbugua contends he was unduly prejudiced by the admission of Deputy
Christmann’s vehicle examination report which disclosed twenty-three violations
of state and federal laws, nine of which were brake related.6 Specifically, Mbugua
contends that Deputy Christmann’s testimony regarding the non-brake related
violations and the vehicle examination report setting forth such violations
contravened KRE 404(b), resulting in the admission of irrelevant and unduly
prejudicial evidence.
The trial court questioned whether the disputed evidence constituted KRE
404(b) evidence, but ultimately determined that Deputy Christmann’s testimony
regarding the non-brake violations and the vehicle examination report were
6
The remaining violations pertained to administrative and other equipment failures, including
inoperable brake lights, an oil/grease leak on axle two, a cracked windshield, an inadequate fire
extinguisher, defective lamps, and decal, registration, and tax violations.
-18-
relevant and probative to show Mbugua’s overall disregard for the upkeep of his
tractor and trailer, and not unduly prejudicial. We agree.
“[E]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” KRE
404(b). However, this rule does not prohibit the admissibility of evidence (1)
offered to prove something other than one’s conformity with a particular character
trait, or (2) that 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.” Id. In determining admissibility under KRE
404(b), the trial court must employ a balancing test and only admit such evidence
that it is relevant, probative, and not outweighed by the potential prejudicial effect.
Bell v. Commonwealth, 875 S.W.2d 882, 888-91 (Ky. 1994); Billings v.
Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992). The United States Supreme
Court has explained the interplay between 404(b) evidence and relevancy.
Rules 401 and 402 establish the broad principle that
relevant evidence – evidence that makes the existence of
any fact at issue more or less probable – is admissible
unless the Rules provide otherwise. Rule 403 allows the
trial judge to exclude relevant evidence if, among other
things, “its probative value is substantially outweighed
by the danger of unfair prejudice.” Rules 404 through
412 address specific types of evidence that have
generated problems. Generally, these latter Rules do not
flatly prohibit the introduction of such evidence but
instead limit the purpose for which it may be introduced.
Rule 404(b), for example, protects against the
introduction of extrinsic act evidence when that evidence
is offered solely to prove character. The text contains no
intimation, however, that any preliminary showing is
-19-
necessary before such evidence may be introduced for a
proper purpose. If offered for such a proper purpose, the
evidence is subject only to general strictures limiting
admissibility such as [relevancy, probativeness, and
prejudice].
Huddleston v. United States, 485 U.S. 681, 687-88, 108 S.Ct. 1496 (1988).
The trial court’s decision that evidence was relevant, probative, and not
substantially outweighed by prejudice will only be disturbed upon a showing of an
abuse of discretion. Burton v. Commonwealth, 300 S.W.3d 126, 136-37 (Ky.
2009) (acknowledging that determining whether evidence is relevant and if its
probative value is substantially outweighed by its prejudicial effect is a “task
properly reserved for the sound discretion of the trial judge”); Cook v.
Commonwealth, 129 S.W.3d 351, 361-62 (Ky. 2004) (noting “the outcome a KRE
403 balancing test is within the sound discretion of the trial judge”). As noted, a
trial court abuses its discretion when it has acted arbitrarily, unreasonably, unfairly
or without support from sound legal principles. English, 993 S.W.2d at 945.
Considering its relevance, probativeness, and prejudice, we cannot conclude
that the trial court abused its discretion by admitting this evidence.
(1) Relevance
Evidence is relevant if it has any tendency to make a fact more or less likely
than it would be without the evidence. KRE 401. KRE 404(b)(1) lists several uses
for prior bad acts or other wrongs evidence, other than to prove character,
including proof of intent, motive, plan, and absence of mistake. As previously
explained by this Court:
-20-
[W]here evidence is admissible to provide [a] full
presentation of the offense [t]here is no reason to
fragmentize the event under inquiry by suppressing parts
of the res gestae [or the whole picture]. As further
pointed out by Lawson, the case law from which the
language utilized in KRE 404(b)(2) is extracted suggests
that the rule is intended to be flexible enough to permit
the prosecution to present a complete, unfragmented,
unartificial picture of the crime committed by the
defendant, including necessary context, background and
perspective.
Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994) (internal
quotation marks omitted).
The vehicle examination report revealing multiple violations of state and
federal law and Deputy Christmann’s testimony regarding such violations were
relevant to Mbugua’s mental state because the evidence illustrated Mbugua’s
overall disregard for the maintenance and safe operation of his tractor and trailer.
Additionally, the numerous violations tended to establish that Mbugua was aware
of the poor condition of his tractor and trailer, including the condition of his
brakes. Further, Deputy Christmann’s testimony supplies the jury with necessary
background information concerning how he conducted his investigation and
ultimately discovered the condition of Mbugua’s brakes. The thoroughness of
Deputy Christmann’s investigation lends weight to his testimony and the
Commonwealth’s case was simply incomplete without this explanation.
(2) Probativeness
-21-
Relevant evidence that falls under a KRE 404(b) exception must still survive
KRE 403’s probative-versus-prejudice analysis. Billings, 843 S.W.2d at 892.
“Extrinsic acts evidence may be critical to the establishment of the truth as to a
disputed issue, especially when that issue involves the actor’s state of mind and the
only means of ascertaining that mental state is by drawing inferences.” Huddleston,
485 U.S. at 685, 108 S.Ct. 1496. Evidence of other wrongs or acts is probative if
“the jury could reasonably infer that the prior bad acts occurred and [the defendant]
committed such acts.” Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky.
1997).
In this case, Deputy Christmann’s testimony and the vehicle examination
report were probative of Mbugua’s mens rea; i.e. whether he was aware of and
consciously disregarded the substantial and unjustifiable risk that the unsafe
condition of his tractor-trailer would result in the death of another human being.
The evidence provided the jury with circumstantial evidence from which it could
surmise that Mbugua was aware of the poor condition of his truck, including its
brakes. Additionally, the jury could reasonably infer from the vehicle inspection
report, the deputies’ testimony regarding the report and Mbugua’s exclusive
operation of the vehicle for twelve days preceding the accident, that Mbugua was
responsible for these violations.
(3) Prejudice
Finally, the trial court must still exclude relevant and probative evidence if
its prejudicial effect outweighs its probative value. Billings, 843 S.W.2d at 892.
-22-
The Kentucky Supreme Court has cautioned trial courts to admit KRE 404(b)
evidence with care as it is “inherently and [often] highly prejudicial to a
defendant.” Bell, 875 S.W.2d at 890. Courts often exclude evidence whose sole
purpose is to inflame the jury. See Funk v. Commonwealth, 842 S.W.2d 476, 48081 (Ky. 1992) (excluding evidence of the defendant’s previous sexual assault of a
small child because inter alia it would almost inevitably inflame the jury).
The evidence in this case is more informative than inflammatory in nature.
As explained above, the purpose of this evidence was to supply the jury with
relevant background information regarding Deputy Christmann’s investigation, as
well as provide the jury with circumstantial evidence from which it could
reasonably infer Mbugua’s mental state at the time of the accident. Further, in
light of all the evidence admitted at trial concerning Mbugua’s activities leading up
to the accident, as well as the condition of Mbugua’ brakes at the time of the
accident, the prejudice to Mbugua was minimal.
Considering the relevance and probativeness of Deputy Christmann’s
testimony and the investigative report as weighed against its prejudicial effect, we
find the trial court did not abuse its discretion in admitting the vehicle examination
report and Deputy Christmann’s testimony concerning the non-brake violations.
D. Prosecutorial Misconduct During Closing Argument
Finally, Mbugua argues that the prosecutor misstated the law in his closing
argument during the trial’s penalty phase. “A claim that the prosecutor misstated
-23-
the law in closing argument is a claim of prosecutorial misconduct.” Matheney v.
Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006).
Our Supreme Court has adopted the Sixth Circuit’s analysis to determine
whether comments in closing arguments constitute reversible error.
We reverse for prosecutorial misconduct in a closing
argument only if the misconduct is “flagrant” or if each
of the following three conditions is satisfied:
(1) Proof of defendant’s guilt is not overwhelming; (2)
Defense counsel objected; and (3) The trial court failed to
cure the error with a sufficient admonishment to the jury.
Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) (emphasis in original)
(citing Carroll, 26 F.3d at 1390). Whether under the “flagrant” analysis or the
three-part test, the error must be preserved before this Court will review it. In this
case, the error was not preserved because defense counsel did not object at the time
the prosecutor made the alleged misstatement. Instead, Mbugua’s counsel waited
until the prosecutor’s closing argument was finished. Our Supreme Court has said
that “a claim of improper argument by the prosecution is not preserved for review
if an objection is not made during the course of the argument.” Caretenders, Inc.
v. Commonwealth, 821 S.W.2d 83, 89 (Ky. 1991) (citations omitted). If a
defendant waits to “object on this ground until after the conclusion of the
prosecution’s argument[,] . . . the error is not preserved.” Id.
Therefore, we decline to address the argument.
III. CONCLUSION
-24-
The judgment of conviction was supported by substantial evidence, the trial
court’s evidentiary rulings did not constitute an abuse of discretion, and there was
insufficient basis upon which to reverse on for prosecutorial misconduct. The
judgment of the Boone Circuit Court is affirmed.
WINE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
-25-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.