WELLS (KENNETH) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 04-CR-00362
COMMONWEALTH OF KENTUCKY
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM, SPECIAL
THOMPSON, JUDGE: Kenneth Wells appeals his judgment of conviction in the
Perry Circuit Court for assault in the second-degree under extreme emotional
disturbance and assault in the fourth-degree. For the reasons stated herein, we
affirm. On July 30, 2004, Wells and his girlfriend, Betsy Wilkerson, and her infant
son went to the residence of Chastity Gamble, Betsy’s sister. While the family was
preparing to leave the residence, John Jeffrey, Betsy’s cousin, approached the
residence in a truck. Betsy gave John a hug and then Wells and Betsy began to
After Wells cursed Betsy, she smacked him. Wells then struck Betsy
in the face with a beer bottle. The force of the impact shattered the bottle and
Betsy began bleeding profusely from her face. Additionally, a shard of glass
slashed the leg of Betsy’s minor son who was in the arms of a family member
standing beside Betsy at the time of impact. Betsy and her son were then taken for
On December 9, 2004, Wells was indicted by a Perry County grand
jury on two counts of second-degree assault. Following a jury trial, Wells was
found guilty of assault under extreme emotional disturbance for striking Betsy and
of fourth-degree assault for injuring Betsy’s son. In accordance with the jury’s
recommendation, the trial court sentenced Wells to five-years’ imprisonment. This
Wells contends that he was prejudiced by Perry County Deputy
Sheriff Jay VanVranken’s testimony that Betsy’s family members informed him
that Wells struck her with a beer bottle. He contends that VanVranken’s testimony
was inadmissible investigative hearsay and the prejudicial effect of its admission
requires the reversal of his conviction. We disagree.
During direct examination, VanVranken testified that Betsy’s family
members “gathered around me to advise me that Mr. Wells had indeed struck—.”
VanVranken was quickly interrupted by defense counsel’s objection, and the trial
court sustained the objection before informing the witness that he could not repeat
the family members’ out-of-court statements. Thus, the trial court prevented
VanVranken from reciting what he had been told by Betsy’s family.
VanVranken’s testimony did not prejudice Well’s right to a fair trial.
Although the jury probably believed that the family informed VanVranken that
Wells had struck her, multiple witnesses testified that Wells struck Betsy on her
face with a beer bottle. Our precedent establishes that the reversal of a conviction
is unnecessary when the testimony was proven by other properly admitted
evidence. Shepherd v. Commonwealth, 327 S.W.2d 956, 957-58 (Ky. 1959).
Accordingly, because other witnesses testified to what VanVranken attempted to
state, his testimony does not warrant the reversal of Wells’ conviction.
Wells next contends that Probation and Parole Officer Lana Rose was
improperly permitted to prove Wells’ prior conviction without the introduction of
documentation. During the sentencing phase, to establish Wells’ prior conviction,
Rose testified that she believed Wells had been convicted for murder but believed
it had been amended down to manslaughter. However, no documentation
regarding the conviction was read to the jury or admitted in the record. Although
Wells did not object to this testimony, he contends that the prosecution’s failure to
introduce the original or a certified copy of his judgment of conviction is palpable
error. We disagree.
Under palpable error analysis, an appellate court may review for any
error which affects the substantial rights of a defendant even when the error was
not preserved by a proper objection at trial. Bell v. Commonwealth, 245 S.W.3d
738, 741 (Ky. 2008). For an error to be palpable, the error must be so easily
perceptible and obvious that a “manifest injustice” would result if appropriate
relief is not granted. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.
2003). Palpable error analysis boils down to whether or not there is a substantial
possibility that the outcome of the defendant’s case would have been different
absent the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
Although Wells correctly argues that the prosecution must introduce
an original or certified copy of his judgment of conviction, he does not state that
Rose’s testimony was incorrect. To the contrary, Wells concedes that he had been
convicted of manslaughter prior to his assault convictions. Therefore, Rose’s
testimony and the failure to introduce documentation regarding his prior conviction
was not palpable error.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General