JESSE BRIAN CONNER V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 25, 2011
NOT TO BE PUBLISHED
(Court of 71,firttfuritv
JESSE BRIAN CONNER
ON APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
A circuit court jury convicted Jesse Brian Conner of assault under
extreme emotional disturbance,' first-degree burglary, first-degree rape, and
first-degree sodomy. The trial court imposed a total sentence of 31 years'
imprisonment as recommended by the jury. In this matter-of-right appeal, 2
-testimony describing Conner's flight before arrest even though the
trial court had severed from the present trial the charge of fleeing
or evading police;
KRS 508.040(2)(a) states that "[a]n assault committed under the influence of
extreme emotional disturbance is . . . [a] Class D felony when it would constitute
an assault in the first degree or an assault in the second degree if not committed
under the influence of an extreme emotional disturbance."
Ky. Const. § 110(2)(b).
the jury to hear Conner's recorded statement in which he mentions
a prior domestic violence emergency protective order that was
issued against him even though the trial court had severed from
the present trial the charge of violating an existing protective order;
impermissible hearsay to be introduced through the treating
physician's testimony recounting potentially incriminating
statements contained in the alleged victim's medical history.
We conclude that the trial court did not err on any issue raised in this appeal
and affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL HISTORY.
Jesse and Mary3 Conner were married for about nine years and had two
children. Although they separated several months before October 30 — the
date on which the incidents allegedly occurred that gave rise to the charges
against Conner — the couple continued to have sexual contact after
separation. According to Mary, all sexual contact between them ceased a
couple months before October 30. But Conner denies any cessation of regular
sexual contact. Mary and Conner have very different versions of what
happened between them on October 30.
According to Mary, Conner was waiting for her inside when she arrived
home from work on October 30. He was there without her permission or
knowledge, she said. Conner said that Mary invited him to meet her at her
Although most documents of record refer to her as Mary Conner, some parts of
the record refer to Conner's ex-wife as Mary Lakes. To avoid confusion, we refer
to her as "Mary" in this opinion.
home for sex. Both Mary and Conner testified to engaging in three sex acts
that day: vaginal sex twice and anal sex once. Mary described the sexual
encounters as entirely nonconsensual on her part, all accomplished by
Conner's threats and acts of violence. Conner stated that the sex was
consensual, and the sex acts were consistent with their customary sexual
Mary and Conner both described acts of bondage and physical violence
accompanying the sex. 4 At some point in the encounter, Conner allowed Mary
to leave to go to the hospital where she underwent a CAT scan and received
pain medication. At the request of Detective Lee Ann Boyle, a detective
investigating the report of Mary's rape claim, Mary submitted to a hospitalconducted rape examination. After her initial hospital visits, Mary's personal
physician, Dr. Regina McDaniels, assumed responsibility for Mary's care.
While Detective Boyle interviewed Mary at the hospital, Deputy Phillip
Sturgill attempted to locate Conner. When Deputy Sturgill eventually found
him, Conner was in the process of parking his truck in a driveway to exit the
truck. When Deputy Sturgill attempted to make contact, Conner got back into
his vehicle and backed out of the driveway. After what was described as a low-
According to Mary, Conner struck her with his fist and the butt of a rifle, fired the
rifle in her direction twice, zip-tied her to a bed, and threatened to kill her.
Conner testified that Mary fired the rifle in his direction after she caught him
looking through her phone. He also stated that during the course of the
encounter, he slapped her, slammed her, and head-butted her. Conner confirmed
he tied Mary to the bed with plastic zip-ties, but he contends that the bondage
was consensual and consistent with their customary sexual encounters.
speed pursuit, Conner stopped his truck and threatened to shoot himself if law
enforcement approached him any further. Deputy Sturgill could see that
Conner had a rifle in his possession.
After a short exchange, Sergeant Scotty Anderson persuaded Conner to
exit his truck and surrender his rifle. Conner was arrested, given Miranda5
warnings, and transported to police headquarters. En route, Conner made
potentially incriminating statements to the law enforcement officers
transporting him and made more statements after his arrival at headquarters.
The grand jury indicted Conner on one count of each of the following
charges: first-degree assault, first-degree unlawful imprisonment, first-degree
burglary, first-degree rape, first-degree sodomy, first-degree fleeing/evading
police, tampering with a witness, and violation of an Emergency Protective
Order (EPO)/Domestic Violence Order (DVO). Before trial, the trial court
severed by agreement the counts of fleeing/evading, violation of an EPO/DVO,
and tampering with a witness and dismissed the unlawful imprisonment
At trial, Conner admitted he assaulted Mary; but he contended Mary
invited him into her home on October 30, and the sex acts were all consensual.
The jury found Conner guilty of assault under extreme emotional disturbance,
first-degree burglary, first-degree rape, and first-degree sodomy.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966).
A. The Trial Court Did Not Err When It Permitted Evidence of Conner's
Before trial, Conner moved to sever from the present case the counts of
fleeing/evading police, violation of an EPO/DVO, and tampering with a
witness. Conner asserted as grounds for severance his argument that these
particular charges would be "incredibly prejudicial" during a trial for burglary,
rape, sodomy, and assault. The Commonwealth informed the trial court that
the parties agreed to sever these charges, and the court granted severance
without hearing argument from the parties.
During the trial, the Commonwealth questioned Deputy Sturgill and
Sergeant Anderson regarding Conner's behavior when they tried to apprehend
him. Conner objected to the admission of that testimony, requested a mistrial,
and later made a motion for a new trial on the grounds that the testimony
regarding Conner's conduct before arrest should have been excluded.
Consequently, this issue is preserved; and we review the admission of the
testimony regarding Conner's conduct under an abuse of discretion standard. 6
court is arbitrary, unreasonable, unfair, or unsupported by sound legal
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
Id. at 581.
In Rodriguez v. Commonwealth, 8 this Court held that the common law
rule that flight was evidence of a sense of guilt was a principle that survived the
adoption of the Kentucky Rules of Evidence (KRE). 9 The Court in Rodriguez
found that Rodriguez's theft of a truck followed by his flight from law
enforcement was admissible after (1) subjecting evidence of flight to relevancy
analysis and the KRE 403 balancing test and (2) considering that evidence
under the parameters of KRE 404(b). We apply the same tests to Conner's
1. ICRE 403 Balancing Test.
Neither Conner nor the Commonwealth addresses the relevancy of the
testimony regarding flight. We recognize that proof of flight has long been
accepted as admissible because flight suggests a sense of guilt.'o As a result,
we focus on the balancing test from KRE 403.
Under KRE 403, relevant evidence "may be excluded if its probative value
is substantially outweighed by the danger of undue prejudice." Conner argues
the probative value of the testimony regarding flight is diminished in value
because he did not dispute he was guilty of a crime — assault — so the
introduction of testimony that he attempted to avoid apprehension was
excessive information about a bad act. And he claims that the trial court's
107 S.W.3d 215 (Ky. 2003).
Id. at 219.
107 S.W.3d at 218.
grant of his motion to sever, in which Conner argued for severance because of
the prejudicial nature of the fleeing/evading charges, made the testimony
regarding flight improper evidence at trial.
The Commonwealth responds that the flight testimony does not rise to a
prejudicial level because the officers' testimony described a low-speed chase in
which Conner did not threaten any of the law enforcement personnel
involved." As such, the facts in the present case were "much more benign and
less potentially prejudicial than those allowed in Rodriguez." 12
Over Conner's objection, the trial court deemed testimony regarding his
flight relevant and implicitly denied that the prejudicial nature of the evidence
substantially outweighed its probative value. The Commonwealth elicited this
testimony regarding Conner's capture but did not attempt to characterize
Conner's flight as a separate criminal offense. Conner's admission that he
assaulted. Mary does not make his flight from law enforcement less probative of
Additionally, the Commonwealth argues that "testimony regarding [Conner's]
suicidal behavior and agitated demeanor during the standoff served to support the
extreme emotional disturbance (EED) mitigator instruction." Baze v.
Commonwealth, 965 S.W.2d 817, 822-23 (Ky. 1997). Because of the mitigating
instruction, the jury was able to consider first-degree assault and first- or seconddegree assault under EED. The Commonwealth states that Conner was convicted
under the mitigating EED instruction because it was supported by the testimony
regarding the standoff. The Commonwealth makes the further point that evidence
that benefits the appellant cannot be considered prejudicial. We find Raze
distinguishable from the present case because in Baze, an incorrect manslaughter
instruction was entirely favorable to the defendant and no prejudicial aspect
existed. Since we resolve the issue on other grounds, we do not reach the
argument in this opinion.
In Rodriguez, the suspect nearly ran over a police officer while fleeing a parking
lot. 107 S.W.3d at 217.
the possibility he committed rape. Conner provides no relevant legal authority
for this specific argument, and the record does not reflect the existence of any
pretrial agreement by the Commonwealth not to present evidence regarding.
Conner's flight simply because the fleeing/ evading charges were severed.
Because the Commonwealth did not use the flight testimony to suggest to the
jury that Conner committed a separate offense and precedent holds that proof
of flight can be evidence of guilt, we hold that the trial court did not abuse its
discretion by permitting officers to testify to Con.ner's attempt to evade law
enforcement and his eventual standoff.
2. KRE 404(b) Analysis.
We next consider whether the evidence is admissible under KRE 404(b).
KRE 404(b) provides that evidence an individual committed other crimes is
inadmissible unless that evidence falls within an exception to the rulen and
states, in pertinent part:
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:
If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .
Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994); See generally Tamme v.
Commonwealth, 973 S.W.2d 13, 29 (Ky.1998) (stating the list of exceptions in
KRE 404(b) is not exhaustive of all permissible uses).
In Tamme v. Comrnonwealth, 14 this Court held that the "other purpose"
provision is an illustrative list rather than an exhaustive one. 15 In Rodriguez,
the admission of Rodriguez's flight was deemed permissible under the "other
purpose" exception because it was offered for the "other purpose" of showing an
expression of guilt. 16 Similarly, the Commonwealth introduced the evidence of
Conner's flight at trial to indicate his sense of guilt. During his testimony
regarding Conner's capture, Deputy Anderson repeated a statement that
Conner made to him: "I guess she's going to say I raped her with a gun, huh?"
This admission by Conner may be viewed as corroborating his flight with a
sense of guilt. In light of the proof regarding flight and the statement made
during Conner's arrest, we conclude that the trial court did not err in allowing
the officers' testimony under the parameters of KRE 404(b)(1); and no abuse of
B. Any Error Regarding Conner's Statements About an Earlier EPO was
Unpreserved for Appellate Review and Does Not Constitute Palpable
Conner's recorded statement taken during the investigation of this
matter was played before the jury. In it, Conner mentioned an EPO that he
973 S.W.2d 13 (Ky. 1998).
Id. at 29 (quoting R. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 2.25 at 87
(3d ed. Michie 1993)).
107 S '.W.3d at 219.
claimed was no longer in effect.'? Toward the end of the recording, Conner
made the following statement, "I've never touched that woman. One time
before when she got the EPO when I was 21-years old. And I didn't hit her
then. I just picked her up and slammed her. It's the only time I ever laid a
finger on her." Although Conner violating an EPO/DVO was among the
severed charges, the remarks in the recorded statement referenced an EPO that
was no longer in effect.
Conner now argues that evidence he had an EPO was irrelevant, not
probative, and impermissible evidence of other wrong acts. Further, Conner
asserts that if any probative value existed, it was substantially outweighed by
its prejudicial nature making it inadmissible under KRE 403's balancing
requirement. Finally, he argues the fact that the Commonwealth did not give
notice required by KRE 404(c) 18 and the trial court did not exclude it resulted
in an abuse of discretion.
Conner implicitly asserted that particular EPO was no longer valid when he said,
"Last time I had an EPO out about five years when she got one out on me. I used
to have to walk from Wal-Mart all the way to the trailer. Parked up Cherry
Blossom Road. Parked all over the place. Because if the cops seen the car sitting
there, then they could actually get us for EPO violation."
"In a criminal case, if the prosecution intends to introduce evidence pursuant to
subdivision (b) of this rule as a part of its case in chief, it shall give reasonable
pretrial notice to the defendant of its intention to offer such evidence. Upon
failure of the prosecution to give such notice the court may exclude the evidence
offered under subdivision (b) or for good cause shown may excuse the failure to
give such notice and grant the defendant a continuance or such other remedy as
is necessary to avoid unfair prejudice caused by such failure."
Conner states that objections to the introduction of evidence of the,
severed charges preserved this particular issue for appeal. But Conner's trial
counsel made no objection to this recorded statement being played in court.
And the EPO references are not specifically addressed in the motion for
mistrial. Consequently, we find that the general objection to evidence of the
severed charges is neither timely nor specific enough in nature to preserve this
issue for appea1. 19 As an alternative to review under an abuse of discretion
standard, Conner requests we review the issue for palpable error under
Kentucky Rules of Criminal Procedure (RCr) 10.26 and KRE 103(e). Finding
the issue is not properly preserved, we review it for palpable error. 20
First, the EPO mentioned by Conner is not the same EPO he was
separately charged with violating in the present case. In this respect, the
Commonwealth did not make an effort to introduce facts from the underlying
severed charge. The Commonwealth maintains that "[e]ven if the references to
the EPO are taken as evidence establishing the fact that [Conner] had hit Mary
in the past and, thus, was more likely to have hit her in this instance, there is
no manifest injustice." We agree with the Commonwealth's position.
Although he consistently maintained he did not rape Mary, Conner
admitted that he assaulted her. Conner took the witness stand and openly
Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky. 2009).
See RCr 10.26 (providing that relief may be provided for palpable errors, despite
lack of proper preservation, if the party's substantial rights are affected and if
manifest injustice resulted from the error).
admitted that he struck Mary, slammed her on the bed, and head-butted her
on the day in question. And the recorded statement's reference to an earlier
EPO cannot be said to have created an inference in the minds of the jury that
Conner acted in conformity with prior acts of domestic violence on the date in
question. So strong was Conner's own admission before the jury that he was
guilty of an "assault of some sort," we consider highly unlikely the possibility
that the outcome of the case would have been different if the jury never heard
reference to Conner's earlier EPO. Conner's rights were not substantially
affected; therefore, we find no palpable error.
C. Testimony from Treating Physician that Mary Told Her Conner Broke
Into Her Home, Raped Her, and Struck Her with a Gun Does Not
Constitute Palpable Error.
Dr. Regina McDaniels, Mary's personal physician, testified that Mary told
her on the day in question that Conner "broke in" and "beat her, raped her,
and broke a rifle barrel over her head." Dr. McDaniels stated that she saw
Mary four days after the incident and that Mary's facial injuries were still
obvious at that time. Mary complained of throbbing headaches, an inability to
sleep, flashbacks, fear of being alone, and a racing heartbeat. Dr. McDaniels
diagnosed post-traumatic stress disorder, traumatic head injury, and severe
insomnia. Dr. McDaniels took Mary off work, referred her to a counselor, and
prescribed medication to treat both mental and physical trauma. 21
Conner claims that the testimony from Dr. McDaniels about the source
of her trauma constitutes impermissible hearsay that does not fall under any
exception to the hearsay rule. Acknowledging that "on the surface" this
testimony may fit the exception contained in KRE 803(4), 22 Conner argues that
exception is inapplicable because the statements regarding Conner breaking
into Mary's home and raping her were not "reasonably pertinent to treatment
or diagnosis" of the head injuries Mary suffered. 23 Additionally, Conner insists
that when Dr. McDaniels testified to the identity 24 of Mary's attacker, this
testimony violated "the general rule . . . that the identity of the perpetrator is
not relevant to the treatment or diagnosis." 25 Because Conner insists that the
outcome of the burglary, rape, and sodomy charges hinge on whether the jury
Generally, the other portions of the testimony given by Dr. McDaniels dealt with
Mary's long-term care and the impact of Mary's injuries on her life. This
testimony is not at issue in this appeal.
Statements for purposes of medical treatment or diagnosis. Statements made for
purposes of medical treatment or diagnosis and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent
to treatment or diagnosis.
Dr. McDaniels did not perform a rape examination on Mary. At the urging of law
enforcement, Mary submitted to a rape kit at the Pattie A. Clay Hospital.
Dr. McDaniels treated Mary in her capacity as Mary's personal physician.
Dr. McDaniels did not identify Conner by name, but she did state that Mary
referred to her attacker as "her husband who she was separated from since
Coluard v. Commonwealth, 309 S.W.3d 239, 244 (Ky. 2010) (citations omitted).
believed Mary's version of the facts or his, he argues that Dr. McDaniels's
testimony was inadmissible hearsay testimony that affected his substantial
rights because this testimony unfairly bolstered Mary's version. Conner
concedes this issue is unpreserved and requests review under RCr 10.26 and
KRE 103(e). On this issue, we review for palpable error.
The Commonwealth insists that Dr. McDaniels properly testified under
the hearsay exception created by KRE 803(4). Because Dr. McDaniels was
responsible for Mary's continuing treatment, including both physical and
mental injuries, the fact her house was broken into and she was raped was
pertinent to medical treatment, particularly Mary's post-traumatic stress
disorder. With respect to Conner's argument that the statements made by
Dr. McDaniels improperly identified Conner as the perpetrator, the
Commonwealth attempts to distinguish Colvard v. Commonwealth, 26 the case
cited by Conner. The Commonwealth maintains that in Colvard — unlike the
present case where Conner's identity is not an issue — the most critical issue
was the identification of Colvard as the perpetrator because no other evidence
physically linked him to the crime. In the event we conclude that the doctor's
testimony is erroneous bolstering, the Commonwealth argues that this
testimony is merely cumulative of other evidence, rendering it harmless error.
It is logical that a physician treating a patient's physical symptoms
would need to know the individual was beaten, raped, and struck with a rifle.
309 S.W.3d 239 (Ky. 2010).
Inasmuch as Dr. McDaniels diagnosed Mary with a closed head trauma, these
facts likely aided in the diagnosis of the conditions or explained the general
character of the immediate source of her current complaints. Based on Mary's
medical diagnoses, we find these particular statements made by Dr. McDaniels
proper under KRE 803(4) since they relate to her physical trauma and
Conner characterizes the evidence against him as to burglary, rape, and
sodomy charges as a choice by the jury between two competing versions of the
facts — his story or Mary's. We disagree with this characterization based upon
the record. Nonetheless, Conner properly takes specific issue with this
statement by Dr. McDaniel:
Mary's story that day was that she had, on October thirty, had
been abused by her husband that she was separated from since
March. She said he had broken in and beat her . . . these are
quote her words, beat her, raped her, and broke a rifle over her
The controversial elements of the statement are the identification of Conner
and the characterization of Conner's presence in the home as a "break in."
With respect to the contents of this testimony, Dr. McDaniels's indirect
identification of Conner violates our holding in Colvard in which we addressed
identification of the offender as part of the medical diagnosis exception
enumerated in KRE 803(4). We stated that "the general rule is that the identity
of the perpetrator is not relevant to treatment or diagnosis." 27 While we
recognize the utility in knowing that Mary was raped, beaten, and struck with a
weapon in treating her physical condition, the statement that Conner "broke
in" to the home was unnecessary for Mary's medical treatment. Consequently,
the identification of Conner and description of his presence in Mary's home did
not fall under the medical diagnosis exception of KRE 803(4) and constituted
As the Commonwealth states, "[Conner] suggests the conclusion that the
jury could have disregarded all of the foregoing evidence, yet been convinced of
Mary's claims by Dr. McDaniels'[s] hearsay statement. Such a conclusion is
untenable." We agree. Dr. McDaniels's controversial statements related to
Conner's identity and his breaking into the home were inadmissible hearsay.
However, we cannot conclude that the verdict would have been different had
Dr. McDaniels's statements not been presented to the jury.
During the trial, the jury heard Detective Boyle testify regarding the rape
investigation, threatening voicemails to Mary from Connor, 28 and testimony
309 S.W.3d 239, 244 (Ky. 2010) (citations omitted).
Arguably, these voicemails contain more than just threats. A reasonable person
might conclude these voicemails contradict Conner's claims that he was in the
home with Mary's permission, and their sexual encounter was consensual.
Recorded voicemails include in the following statements: "You won't see me. You
won't (inaudible) with me. So I'm really sorry about the next thing that goes on
because I will see you today. I will come to your house and knock on the door." "I
know that you went to the f**king law . . . . As you know, I done got what I
want . . . . They better f**king catch me before I find you, because once I find you
from investigating law enforcement officers that tended to corroborate Mary's
version of the events. Conner's own testimony placed him in Mary's home and
described an encounter characterized by violence. With the exception of his
own testimony, the overwhelming amount of evidence introduced at trial
tended either to support Mary's description of the incident or to discredit
Conner's. Although Conner maintains the trial of this case was about
competing credibility, beyond the parties' disputed testimony, the weight of
evidence squarely supports Mary's version of their encounter. Consequently,
we conclude that Dr. McDaniels's statements that identified Conner and
characterize his presence in the home as a "break in" did not approach the
manifest injustice required for the error to be palpable.
For the foregoing reasons, the judgment of the trial court is affirmed.
All sitting. All concur.
I'm going to kill you and everybody is going to be happy . . . . You know damn
good and well I could have killed you . . . . The sex was consensual."
COUNSEL FOR APPELLANT:
Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentucky
Micah Brandon Roberts
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive, Suite 200
Frankfort, Kentucky 40601
Michael Louis Harned
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601