CHRISTOPHER JACKSON V. COMMONWEALTH OF KENTUCKY — OPINION OF THE COURT BY JUSTICE NICKELL AFFIRMING

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2024-SC-0538-MR CHRISTOPHER JACKSON APPELLANT V. ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE NO. 24-CR-00140 COMMONWEALTH OF KENTUCKY APPELLEE OPINION OF THE COURT BY JUSTICE NICKELL AFFIRMING Christopher Jackson was convicted following a jury trial of murder, criminal mischief in the first degree, wanton endangerment in the first degree, and aggravated operating a motor vehicle while under the influence. He received an aggregate sentence of thirty-five years’ imprisonment and appeals to this Court as a matter of right.1 Following a careful review, we affirm. FACTS On December 22, 2023, Jackson had been drinking prior to leaving his home to pick up his fiancée from work. While on Industrial Road in Erlanger, Kentucky, Jackson was travelling approximately 99 miles per hour in a 45 mile per hour speed zone, when his SUV struck a curb, causing him to lose control 1 KY. CONST . §110(2)(b).

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2 of the vehicle. The vehicle crossed the centerline and collided head-on with an oncoming sedan. At the time of the collision, Jackson’s speed was 92 miles per hour. When responding officers arrived at the scene, Jackson was outside his vehicle wandering around. He told officers the other car came out of nowhere, and they collided. Officers noticed his speech was slurred, he seemed confused, was unsteady on his feet, repeatedly resisted police commands, and had a strong odor of alcohol on his breath. Subsequent field sobriety tests revealed clues of impairment. He admitted to drinking alcohol but claimed it was the day before the collision. Jackson was arrested for driving under the influence (DUI), second offense, aggravated circumstances, assault in the first degree, and reckless driving. He was transported to a local hospital to have his blood drawn for alcohol testing. An expert later reviewed the results of the blood tests and estimated that at the time of the collision, Jackson’s blood alcohol content (BAC) was 0.243, which was more than three times the legal limit. The driver of the sedan, Gordon Torline, was trapped in his severely damaged vehicle and had to be extricated by first responders. Torline sustained multiple injuries including fractures involving his skull, face, spine, ribs, arms, legs, feet, and pelvis, along with numerous lacerations and internal trauma. He was airlifted from the scene to a trauma center for treatment where he was placed on life support. After several weeks in the hospital, and despite the efforts of hospital staff to save him, Torline ultimately succumbed to his injuries, specifically a significant brain hemorrhage.

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3 Following Torline’s death, a Kenton County Grand Jury indicted Jackson for murder, criminal mischief in the first degree, wanton endangerment in the first degree, and aggravated DUI, second offense. Jackson sought dismissal of the murder charge, arguing he could only be charged under the then-newly enacted vehicular homicide statute—also known as Lily’s Law. During the 2023 legislative session, the General Assembly considered and passed House Bill 262 creating the new crime of vehicular homicide as a Class B felony. After Governor Beshear signed the bill into law on March 27, 2023, the new statute was codified at KRS2 507.060 and reads as follows: (1) A person is guilty of vehicular homicide when: (a) He or she causes the death of another; and (b) The death results from the person’s operation of a motor vehicle, including but not limited to boats and airplanes, under the influence of alcohol, a controlled substance, or other substance which impairs driving ability as described in KRS 189A.010. (2) Vehicular homicide is a Class B felony. Prior to trial, Jackson moved to dismiss the murder charge against him, arguing the legislative enactment of Lily’s Law precluded the prosecution’s ability to charge him with wanton murder pursuant to KRS 507.020(1)(b). In support, he cited Shouse v. Commonwealth, 481 S.W.3d 480 (Ky. 2015), for the proposition that where the legislature creates a new crime specifically applicable to certain circumstances, it has created a carve-out such that the 2 Kentucky Revised Statutes.

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4 conduct will no longer support a conviction under the former statutory provisions. The trial court rejected Jackson’s assertion, and the matter proceeded to a lengthy jury trial. Ultimately, relative to Torline’s death, the jury was instructed on wanton murder, vehicular homicide, and manslaughter in the second degree. The jury was not swayed by Jackson’s defense that the collision and Torline’s death were merely an unfortunate accident but was convinced he was guilty of murder. He was convicted on all counts as charged in the indictment and was sentenced to serve thirty-five years in prison. This appeal followed. ANALYSIS In seeking reversal, Jackson raises six allegations of error. First, he argues the 2023 enactment of KRS 507.060 criminalizing vehicular homicide precludes a charge of wanton murder under KRS 507.020(1)(b) when a death occurs because of the operation of a motor vehicle while the defendant is intoxicated. Second, he contends the trial court improperly admitted evidence of his prior bad acts in violation of KRE3 404(b). Third, Jackson asserts the Commonwealth was improperly allowed to call Torline’s daughter to testify and give victim impact testimony during the guilt phase. Fourth, he challenges the introduction of Torline’s autopsy photos as being irrelevant and highly prejudicial. Next, Jackson argues the trial court erred in refusing to instruct the jury on reckless homicide. Finally, he alleges the Commonwealth 3 Kentucky Rules of Evidence.

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5 committed flagrant prosecutorial misconduct during closing argument in both the guilt and penalty phases of trial. We shall address each assertion of error in turn. I. Enactment of KRS 507.060 does not preclude a wanton murder charge. For his first allegation of error, Jackson posits the enactment of KRS 507.060 criminalizing vehicular homicide precludes a conviction for wanton murder under KRS 507.020(1)(b), as both cover instances when a death occurs because of the operation of a motor vehicle while the defendant is intoxicated. Jackson contends the legislative intent was to carve out vehicular homicide as a separate crime, and by so doing it had “dictated the maximum appropriate charge,” Shouse, 481 S.W.3d at 488, thus removing wanton murder as a possible charge. He asserts that an inherent conflict exists between the two statutes and therefore, because KRS 507.060 is the more specific statute, it should control over the more general provisions of KRS 507.020(1)(b). We disagree. Jackson’s argument raises an issue of statutory interpretation, which is purely a matter of law subject to de novo review. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011); Univ. of Ky. v. Regard, 670 S.W.3d 903, 911 (Ky. 2023). Thus, “the [legal] conclusions reached by the lower courts are entitled to no deference.” Love, 334 S.W.3d at 93; 19 Griffin Terry Sumner & Jason P. Renzelmann, Ky. Prac., Appellate Prac. § 4:3 (2026). The goal of this Court in statutory interpretation is to carry out the intent of the legislature. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky.

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6 2012); Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010) (discerning and effectuating legislative intent is the cardinal rule of statutory construction); see also KRS 446.080(1) (“All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature”). When interpreting a statute, we must look first to the plain language of a statute and, if the language is clear, our inquiry ends. We hold fast to the rule of construction that the plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source. Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) (citations and quotations omitted). “Our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.” City of Covington v. Kenton Cnty., 149 S.W.3d 358, 362 (Ky. 2004) (quoting Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575, 577 (Ky. 1994)). In the event statutes are in conflict, “[i]t is incumbent upon courts to resolve the conflict between the two statutes so as to give effect to both. In harmonizing the conflict between two statutes that relate to the same subject, Kentucky follows the rule of statutory construction that the more specific statute controls over the more general statute.” Light v. City of Louisville, 248 S.W.3d 559, 563 (Ky. 2008) (citations omitted). KRS 507.020(1)(b) states that a person is guilty of murder when he causes the death of another when, “[i]ncluding, but not limited to, the

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7 operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” To be guilty of vehicular homicide under KRS 507.060, a person must cause the death of another and “[t]he death results from the person’s operation of a motor vehicle, including but not limited to boats and airplanes, under the influence of alcohol, a controlled substance, or other substance which impairs driving ability as described in KRS 189A.010.” The language of both statutes is plain and unambiguous, and thus, no interpretation of the words used in either is necessary. However, Jackson asserts that since both statutes, by their plain language, could apply to his conduct, they are inherently in conflict, thereby requiring this Court to ascertain the legislative intent behind the statutes to resolve the matter. He relies heavily on our decision in Shouse in support of his position that it was “the Legislature’s intention to create a separate and more specific statute concerning instances where someone is under the influence of alcohol and caused the death of another person.” Jackson thus urges this Court to conclude the vehicular homicide statute replaces all other potential homicide charges in situations where it would be applicable. In Shouse, the defendant was intoxicated and left her two-year-old son in her car overnight and into the afternoon of the next day, thereby resulting in the child’s death. 481 S.W.3d at 482. She was ultimately convicted of wanton murder, criminal abuse in the second degree, and wanton endangerment in the

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8 first degree. On appeal, we reversed the wanton murder conviction based on a previous amendment to the manslaughter in the second degree statute which encompassed the specific facts of Shouse’s case. In so holding, we agreed with Shouse’s contention that “KRS 507.040(1)(b), which was added to the second- degree manslaughter statute in 2000, specifically provides that causing the death of a child under the age of eight by leaving the child in a motor vehicle under circumstances manifesting an extreme indifference to human life and creating a grave risk of death, is second-degree manslaughter.” Id. at 483. Because both wanton murder and second-degree manslaughter under KRS 507.040(1)(b) shared the same mens rea of aggravated wantonness, they were squarely in conflict with one another. We noted that it is not obvious which one applies and should prevail over the other to establish an offense under these circumstances, which is not to say an option is created. The same mental state—aggravated wantonness—is being applied to two different homicide offenses— murder and second-degree manslaughter—when one is a greater offense than the other. This is outside the normal view of how offenses work, where the greater offense includes the lesser offense, and the offenses are usually differentiated by the mental state. Obviously, that cannot occur when the mental state of aggravated wantonness and the end result of death are the same for the two different offenses. But both statutes cannot control, nor can Shouse’s conduct have violated both. She can be convicted of only one homicide offense. Id. at 484-85. In resolving the conflict, we held that by tying the aggravated wantonness in the second-degree manslaughter statute to a very specific set of facts—death of a child under eight wantonly left in a vehicle—the legislature made a clear distinction from the murder statute. A death that happens this way is not murder, but is rather second-degree manslaughter.

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9 This Court cannot assume the General Assembly enacted a nullity when it amended the manslaughter statute. . . . [B]y amending the second-degree manslaughter statute to cover an aggravatedly wanton homicide of a child under age eight by leaving the child in a car, the legislature has carved out a specific fact pattern for which second-degree manslaughter is the highest possible offense committed. The fact that the legislature set forth the specific conduct to be treated as second-degree manslaughter is indicative that there is an intentional difference and that one statute should control over the other. Id. at 485. Because KRS 507.040(1)(b) was more specific than the wanton murder statute, we held it was controlling. Id. Thus, our narrow holding was that under such facts, the statutory amendment preempts a conviction for wanton murder. Id. at 488. Nevertheless, we made clear in Shouse that the more specific statute will be deemed to control when multiple criminal statutes could apply to a given act only in circumstances where there is a true overlap in the statutory provisions. It was only because the two statutes in issue in Shouse shared the same mental state of aggravated wantonness that we concluded an overlap existed. Id. at 484. Those are not the facts before us today. To be convicted of wanton murder, KRS 507.020(1)(b) requires a defendant to “wantonly engage[] in conduct” evidencing an “extreme indifference to human life.” Lily’s Law includes no comparable requirements. Indeed, the Legislature appears to have crafted vehicular homicide as a crime requiring no specific culpable mental state.4 Lily’s Law more specifically and 4 While no requisite mental state is listed within the statute, the Commonwealth still must prove the defendant acted with a culpable mental state in order to secure a conviction. See KRS 501.030(2), KRS 501.040.

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10 without qualification addresses causing the death of another resulting from operating a motor vehicle while under the influence of alcohol or other intoxicating substance which impairs the ability to drive. This statutory difference, alone, is sufficient to take this matter out of the realm of Shouse’s holding. By enacting KRS 507.060, the General Assembly utilized its inherent authority to set criminal policy. Enactment of the statute was clearly intended to impose harsher penalties upon certain persons causing the death of another by driving while intoxicated. However, by targeting this particular conduct, the General Assembly did not eliminate the possibility of one being contemporaneously charged with other degrees of homicide requiring proof of additional elements relative to one’s culpable mental state, nor did it repeal existing law. Had the Legislature so intended, “it surely could and would have said so in definitive words.” City of Covington, 149 S.W.3d at 363. Instead, the crime of vehicular homicide is a part of a multi-tiered statutory scheme addressing various homicidal actions. Each of the various statutes contain separate elements of proof and varying degrees of culpability which are neither haphazard nor overlapping. Here, because Jackson’s actions comported with the statutory elements of wanton murder under KRS 507.020(1)(b), the Commonwealth could properly charge him with same. The enactment of KRS 507.060 did not preclude such a charge and Jackson was not and is not entitled to the relief sought. The trial court correctly determined as much, and, by instructing the jury on wanton

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11 murder, vehicular homicide, and manslaughter in the second degree, it thereby permitted jurors to decide the appropriate level of punishment Jackson would receive for his actions based on the proof adduced at trial. Sufficient evidence supported the jury’s finding of guilt, and we discern no basis to disturb its judgment. II. Prior bad acts evidence introduction was not improper. For his next assertion, Jackson contends the trial court improperly permitted the Commonwealth to introduce evidence of his prior alcohol use through a previous public intoxication conviction and a conversation with his girlfriend wherein she made comments about him drinking and driving. We disagree. Prior to trial, the Commonwealth filed a notice pursuant to KRE 404(c) that it intended to introduce prior bad acts evidence regarding Jackson’s alcohol use to show he had knowledge of the risks of operating a motor vehicle while intoxicated. Jackson responded with a motion to exclude the proffered evidence. Following multiple discussions and hearing the evidence the Commonwealth sought to introduce, the trial court disallowed all but two pieces of evidence: (1) a 2013 arrest and subsequent guilty plea for operating a vehicle on a suspended or revoked driver’s license and alcohol intoxication in a public place, following an incident where Jackson drove his car into a ditch;5 5 In their briefs, both Jackson and the Commonwealth assert the incident occurred on Industrial Road in Erlanger, Kentucky. However, the Uniform Citation entered into the record, along with the testimony of the arresting officer, place the accident site on Locust Pike in Fairview, Kentucky. These two roads are separated by

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12 and (2) a conversation Jackson’s girlfriend, Sheila Sullivan, had with a detective wherein she indicated she had previously discussed with Jackson his drinking and the danger that drinking and driving poses to others.6 Evidence comporting with the Commonwealth’s pre-trial proffer was adduced at trial. Sullivan also testified Jackson’s alcohol use had been an ongoing source of conflict in their relationship. Citing Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994), Jackson asserts the evidence should have been excluded as it was not relevant, had low probative value, and was unduly prejudicial. Under KRE 404(a), the general rule is that evidence of other crimes is not admissible to show that a defendant is a person of criminal disposition. KRE 404(b) provides an exception to the general rule and provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or (2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party. at least ten miles. No explanation is given for this factual discrepancy and we disregard any arguments based on the erroneous reading of the record. 6 The trial court ruled the remaining prior acts evidence proposed by the Commonwealth were inadmissible as they were more prejudicial than probative.

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13 This list of “other purposes” is “illustrative rather than exhaustive.” Rodriguez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003) (quoting Colwell v. Commonwealth, 37 S.W.3d 721, 725 (Ky. 2000)). Trial courts must cautiously admit evidence of other crimes, wrongs, or acts under KRE 404(b) “with an eye towards eliminating evidence which is relevant only as proof of an accused’s propensity to commit a certain type of crime.” Bell, 875 S.W.2d at 889. “[E]vidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal predisposition, and only if its probative value on that issue outweighs the unfair prejudice with respect to character.” Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992). To determine the admissibility of uncharged acts, courts must ascertain whether the evidence is relevant for a permitted purpose, probative of the uncharged act, and not unduly prejudicial under KRE 403. Bell, 875 S.W.2d at 889. As with other evidentiary rulings, the applicable standard of review is abuse of discretion. Id. Applying the Bell analysis, we cannot conclude the trial court abused its discretion. First, evidence of Jackson’s prior vehicle accident while he was intoxicated and Sullivan’s discussions with him regarding the dangers he posed by drinking and driving were relevant to show that he was aware of and consciously disregarded the risks associated with his actions. It was relevant to show intent, knowledge, and lack of mistake. The evidence further showed Jackson had personal, first-hand knowledge that a car crash is a natural and possible outcome from drinking and driving, rather than a nebulous “common

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14 knowledge” which can be imputed to “everyone on this [E]arth” as he claims before this Court. The evidence adduced demonstrated strikingly similar facts common to both incidents and was relevant to the crimes for which Jackson was charged. It did not merely support a propensity for common criminality. Second, the testimony of the arresting officer and Sullivan was probative to prove the prior incidents did occur and that Jackson had the knowledge of the risks associated with drunken driving but consciously disregarded those dangers. Evidence surrounding his 2013 arrest and conviction revealed Jackson was manifestly under the influence of alcohol and admitted to driving his vehicle before crashing into a ditch. Jackson asserts only that the remoteness in time of this event destroys any probative value which it might otherwise have, thereby rendering it inadmissible. However, generally “[t]emporal remoteness goes to the weight, not the admissibility, of the prior bad acts evidence.” Clark v. Commonwealth, 223 S.W.3d 90, 100 (Ky. 2007) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). While this Court has previously concluded a defendant’s bad acts were too remote to be admissible—some older in time and some closer—we have never set a bright- line rule for doing so and will not endeavor to create such a rule today. Based on the facts before us, we cannot say the remoteness in this instance was such as to destroy admissibility. The jury was free to weigh the evidence and draw its own conclusions therefrom based on the passage of time. Additionally, Sullivan’s testimony that she had directly spoken with Jackson about his drinking and driving and cautioned him about the consequences thereof was

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15 probative in showing he had been made directly aware of the risks inherent in drunken driving and the consequences which could flow from doing so. Third, we cannot conclude any undue prejudice flowed from the introduction of any of the bad acts evidence. “An appellate court evaluating a trial court’s balancing under KRE 403, must consider the evidence in the light most favorable to its proponent, giving the evidence its maximum reasonable probative force and its minimum prejudicial value.” Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014) (citing Major v. Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005)). Additionally, “[t]he balancing of the probative value of such evidence against the danger of undue prejudice is a task properly reserved for the sound discretion of the trial judge.” English, 993 S.W.2d at 945. (citations omitted). While the evidence was clearly prejudicial, KRE 403 does not operate to exclude evidence that is merely “detrimental to a party’s case.” Yates, 430 S.W.3d at 897 (quoting Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012)). A ruling based on a proper balancing of prejudice against probative value will not be disturbed unless it is determined that a trial court has abused its discretion.” Bell, 875 S.W.2d at 890 (citing Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky. 1970)). Here, the 2013 incident was strikingly similar to the charged crime, establishing a relevant pattern of conduct. Sullivan’s testimony reiterated that Jackson continued to drink and drive knowing the associated dangers. There was a proper purpose for this evidence, and its potential for prejudice did not outweigh its probative value. The trial judge, acting within her discretion, properly admitted the evidence.

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16 III. No improper victim impact testimony was given. For his third allegation of error, Jackson contends the Commonwealth was improperly allowed to call Torline’s daughter, Ashley Cloyd, to testify and give victim impact testimony during the guilt phase. We disagree. During its case in chief, the Commonwealth called Cloyd to the stand, and Jackson immediately lodged an objection, asserting her testimony was more appropriate for the sentencing phase and that she would have little to nothing to offer relative to Jackson’s guilt. He also asserted her testimony would be more prejudicial than probative. The Commonwealth countered that it was permitted to have a witness testify as to who Torline was and to humanize the fact that he was not simply an exhibit number. The trial court overruled the objection but noted Cloyd must limit her testimony to the confines of allowing the jury to get to know Torline and not get overly emotional. As Jackson concedes, Cloyd largely gave background information regarding Torline and his family. She described getting notified of the accident and Torline’s time in the hospital, noting his various treatments and challenges. Cloyd also discussed the difficulty in deciding to terminate life support when it became clear Torline would not recover. Jackson now contends Cloyd’s testimony was highly inflammatory, prejudicial, and elicited only to inflame the passions and sympathies of the jury. He asserts her testimony was improper victim impact evidence which should not be introduced in the guilt phase of trial.

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17 While we generally agree that victim impact evidence should be confined to the penalty phase of trial, “a certain amount of background evidence regarding the victim is relevant to understanding the nature of the crime.” Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky. 1994) (citations omitted). The Commonwealth is allowed to introduce evidence identifying a victim as a living person and not simply a mere statistic. McQueen v. Commonwealth, 669 S.W.2d 519, 523 (Ky. 1984). This type of evidence may include, among other things, “the victim’s age, job, interests, and level of education.” Brown v. Commonwealth, 297 S.W.3d 557, 561 (Ky. 2009). Victim background evidence is not deemed unduly prejudicial “as long as the victim is not glorified or enlarged.” Bowling v. Commonwealth, 942 S.W.2d 293, 302 (Ky. 1997). On the contrary, “introduction of victim impact evidence during the guilt phase is reversible error.” Tackett v. Commonwealth, 445 S.W.3d 20, 33 (Ky. 2014). The difference between victim impact and victim background evidence is that the former is “generally intended to arouse sympathy for the families of the victims, which, although relevant to the issue of penalty, is largely irrelevant to the issue of guilt or innocence.” Bennett v. Commonwealth, 978 S.W.2d 322, 325 (Ky. 1998). Young v. Commonwealth, ___ S.W.3d ___, 2025-SC-0487-MR, 2026 WL 2511068, at *6 (Ky. Aug. 20, 2026). Here, Cloyd’s testimony gave the jury a peek into Torline’s background, his family, his injuries, his time in the hospital, and his ultimate passing. She did not glorify or enlarge Torline, nor did she attempt to appeal to the emotions of the jurors. She spoke nothing about the impact his death had on her or the family, and her words were mostly calm and measured. Although she did show a bit of emotion at one point in her testimony, she quickly apologized and

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18 composed herself. The testimony was factual in nature and was not marked with emotional outbursts or pleas of anguish and grief. “As with all relevant evidence, ‘[t]his evidence . . . was prejudicial . . . but it was not unfairly prejudicial.’ The danger of undue prejudice did not substantially outweigh the probative value of the testimony. KRE 403.” Id. at *7 (quoting Meece v. Commonwealth, 348 S.W.3d 627, 667 (Ky. 2011)). Cloyd was not “overly emotional, condemnatory, accusative, or demanding vindication[.]” Foley v. Commonwealth, 953 S.W.2d 924, 937 (Ky. 1997). Thus, we hold the use of victim background evidence during the guilt phase of Jackson’s trial was appropriate. The trial court did not err in permitting its admission. IV. The autopsy photos were properly admitted. Jackson next argues the trial court abused its discretion in allowing the Commonwealth to admit two photographs from Torline’s autopsy over his objection. One of the photographs showed Torline’s skull exposed with the skin retracted back, and the other showed his brain exposed. Jackson asserts the photographs had a low probative value as there was no dispute as to what caused Torline’s death, and whatever value they did have was outweighed by the danger of undue prejudice. Review of a trial court’s evidentiary rulings is for an abuse of discretion. Mulazim v. Commonwealth, 600 S.W.3d 183, 190 (Ky. 2020). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945. No such error occurred.

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19 During trial, the Commonwealth sought to introduce three photographs from Torline’s autopsy. Jackson objected to two of them. Both photographs were presented by the Commonwealth to assist the jury in evaluating Torline’s cause of death, which was a brain hemorrhage. Jackson asserted the photographs were unduly gruesome and that because he was challenging neither the cause nor manner of Torline’s death, they did not survive the balancing test set forth in KRE 403. The trial court allowed the introduction as the photographs showed the actual brain injury that resulted in Torline’s death and were not cumulative of other evidence. Because these photos come nowhere near the degree of gruesomeness required to find error as to their admission, we decline to reverse on this issue. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” KRE 403. As Jackson concedes, “prior decisions of this Court have generally approved of the admission of graphic photos,” Hall v. Commonwealth, 468 S.W.3d 814, 822 (Ky. 2015), though “such photographs are not automatically admissible.” Id. at 823. But, in large part, “our case law has been interpreted as laying out a bright line rule that gruesome victim photos are per se admissible subject only to clearly delineated exceptions, such as when the body had been mutilated or has decomposed.” Id. at 822-23.

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20 Typically, where this Court has concluded gruesome photographs were improperly admitted are instances where a plethora of images were shown to the jury. In Hall, for example, the Commonwealth sought to introduce 28 photographs, many “depicting the same scene or subject merely from different vantage points” and “some photos were left displayed, and magnified, on the digital projector while testimony was elicited about details that did not concern the photos.” Burdette v. Commonwealth, 664 S.W.3d 605, 617 (Ky. 2023) (discussing Hall). Additionally, the photographs were admitted as a group, and the trial judge neglected to assess the merits of each image. Hall, 468 S.W.3d at 827. Jackson’s allegation of error is far from the situation presented in Hall. The Commonwealth sought to introduce only three autopsy photographs, and Jackson objected to two of them. Though the photographs were gruesome, they were no more gruesome than the autopsy photographs we regularly allow to be admitted during trial. And they did assist the jury to understand Torline’s cause of death. “The trial judge is always required to weigh the probative value of the gruesome photo in question against the harmful effects that might flow from its admission to determine whether the photo should be excluded notwithstanding the general rule.” Id. at 823. “[G]eneral gruesomeness by itself, while prejudicial, is an insufficient ground to keep out relevant evidence; rather, the gruesomeness must be such that it creates substantial undue prejudice or other harmful consequences that outweigh the probativeness of the evidence.”

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21 Id. at 824. “[P]hotographs that are probative of the nature of the injuries inflicted are not excluded unless they are so inflammatory that their probative value is substantially outweighed by their prejudicial effect.” Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003). Here, Torline died from a cerebral hemorrhage. The two photographs depicted the direct injury and confirmed the testimony of the medical examiner who conducted the autopsy regarding the cause of death. They were plainly relevant and probative of those facts and bore directly on Jackson’s guilt. While the photographs may have been unpleasant to view, they were not overly gruesome or inflammatory. Further, although Jackson posits the Commonwealth had sufficient other evidence relative to Torline’s cause of death such that the autopsy photographs were unnecessary, it is the Commonwealth’s typically onerous burden to prove the corpus delicti beyond a reasonable doubt. Indeed, although Jackson “naturally wished to prevent the jury from seeing the autopsy photos, the Commonwealth may prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see.” Burdette v. Commonwealth, 664 S.W.3d 605, 617 (Ky. 2023) (citation and internal quotation marks omitted). We cannot say the prejudicial effect of the photographs outweighed their probative value and thus refuse to disturb the trial court’s ruling on their admissibility.

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22 V. The jury was properly instructed. For his fifth allegation of error, Jackson argues he was entitled to an instruction on the lesser included offense of reckless homicide and the trial court erroneously concluded otherwise. We disagree. It is the duty of a trial court to instruct the jury on the entirety of the law of the case. Daniel v. Commonwealth, 607 S.W.3d 626, 644 (Ky. 2020) (citing RCr7 9.54(1)). This duty extends to any “lesser-included offenses” which are supported by the evidence. Sasser v. Commonwealth, 485 S.W.3d 290, 296 (Ky. 2016). Lesser included offenses are established by proof of “the same or less than all the facts required to establish the commission of the offense charged.” Id. at 296-97 (quoting KRS 505.020(2)(a)). “Lesser-included offense instructions are proper if the jury could consider a doubt as to the greater offense and also find guilt beyond a reasonable doubt on the lesser offense.” Taylor v. Commonwealth, 671 S.W.3d 36, 41 (Ky. 2023) (quoting Parker v. Commonwealth, 952 S.W.2d 209, 211 (Ky. 1997)). Thus, “an instruction on a lesser included offense is required if the evidence would permit the jury to rationally find the defendant not guilty of the primary offense, but guilty of the lesser offense.” Mash v. Commonwealth, 376 S.W.3d 548, 559 (Ky. 2012) (quoting Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005)); see also Hopper v. Evans, 456 U.S. 605, 611 (1982) (holding that due process requires 7 Kentucky Rules of Criminal Procedure.

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23 an instruction on a lesser included offense only “when the evidence warrants such an instruction”). Any decision regarding “a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom.” Downs v. Commonwealth, 620 S.W.3d 604, 613 (Ky. 2020) (quoting Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). When the trial court’s decision to give a jury instruction is “based on its view of the evidence,” this Court reviews that decision for an abuse of discretion. Sutton v. Commonwealth, 627 S.W.3d 836, 853 (Ky. 2021) (citing Exantus v. Commonwealth, 612 S.W.3d 871, 888 (Ky. 2020)); Downs, 620 S.W.3d at 613. An abuse of discretion occurs when the trial court's decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945. Pursuant to KRS 507.050(1), “[a] person is guilty of reckless homicide when, with recklessness he causes the death of another person.” The definition of the reckless mental state is set forth in KRS 501.020(4) as follows: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Pertinent to the facts of this case, wanton murder requires “[i]ncluding, but not limited to, the operation of a motor vehicle under circumstances manifesting

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24 extreme indifference to human life, [a defendant] wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” KRS 507.020(1)(b). As previously stated, to be guilty of vehicular homicide, a defendant must cause the death of another while operating a motor vehicle while under the influence of alcohol or other intoxicating substance. Similarly, in the current circumstances, manslaughter in the second degree requires a defendant to wantonly cause the death of another person due to his operation of a motor vehicle. KRS 507.040(1)(a). Reckless homicide can be a lesser-included offense of these higher degrees of homicide. As previously stated, the trial court instructed the jury on wanton murder, vehicular homicide, and manslaughter in the second degree. Jackson’s request for an instruction on reckless homicide was rejected by the trial court. He now contends several factors showed his conduct on the day of the collision was reckless rather than wanton, and that a reasonable juror could have so found, thereby warranting an instruction on the lesser offense. He recites a few portions of testimony and evidence adduced at trial to support his position. Specifically, Jackson asserts he was a heavy drinker which, according to the Commonwealth’s own witness, would result in depression of the central nervous system and impact the ability to learn from past experiences and apply those to the present time. In addition, he claims that, although he was speeding, he hit the curb “for unknown reasons” and that event caused his SUV to veer into oncoming traffic. Nevertheless, he continued

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25 to brake in an effort to control the vehicle. He also posits he was more concerned about Torline’s well-being than his own following the collision, as evidenced by his attempts to check on him multiple times. According to Jackson, stitching these pieces together supports a reckless mens rea. Jackson offers a narrative which downplays his culpability while ignoring the majority of the evidence presented at trial. At bottom, his assertion is that he was simply too drunk to appreciate the risks associated with driving while intoxicated and the collision occurred for reasons outside his control, and thus his actions were merely reckless. The facts of the case simply do not bear out his position. The evidence established that Jackson was driving more than twice the posted speed limit on a heavily travelled surface road in the middle of the afternoon and his blood alcohol level was more than three times the legal limit. He struck a curb with enough force to severely damage his front tire and wheel and cause damage to the concrete curbing and roadway. The vehicle slowed only seven miles per hour before colliding with Torline’s sedan some 307 feet later on the other side of the road. The substantial risk of death involved in driving at a high rate of speed while intoxicated is so manifestly inherent that Jackson could not reasonably have “failed to perceive” the “substantial and unjustifiable risk” his conduct posed. KRS 501.020(4). Indeed, within his argument relative to the introduction of prior bad acts evidence, Jackson concedes “it’s common knowledge to everyone on this [E]arth that they should

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26 not drink and drive.” His actions were plainly beyond reckless and his specious claims to the contrary are without merit. While the trial court has a duty to instruct the jury on the whole law of the case, that duty “does not mandate the trial court place before the jury speculative theories merely because the testimony includes some basis for the speculation.” Breazeale v. Commonwealth, 600 S.W.3d 682, 691 (Ky. 2020) (quoting Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015)). The trial court has no duty to instruct on a theory not supported by the evidence. Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983). There was no error in the instructions. VI. No prosecutorial misconduct occurred. Finally, Jackson argues the Commonwealth committed flagrant prosecutorial misconduct during its closing arguments in both the guilt and penalty phases of trial. As to the guilt phase, he contends the Commonwealth improperly inferred that he “had wasted everyone’s time” by going to trial and inappropriately commented on Jackson’s exercise of his constitutional right to a jury trial. He then asserts the Commonwealth made an improper “send a message” argument in its closing summation in the penalty phase. While the latter assertion was preserved for appellate review by a contemporaneous objection, the former is unpreserved, and he requests palpable error review under RCr 10.26.8 When a defendant fails to make a 8 “A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal,

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27 contemporaneous objection to alleged prosecutorial misconduct, we will only reverse if flagrant misconduct rendered the entire trial fundamentally unfair. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). To determine whether improper comments amount to flagrant prosecutorial misconduct, we must examine: “(1) whether 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. (quoting Mayo v. Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010)). “Of course, this four- part test applies only if a court has determined that a prosecutor’s comments were improper.” Mayo, 322 S.W.3d at 56. In reviewing preserved claims of prosecutorial misconduct, “reversal is required only if the misconduct is flagrant or if each of the following is satisfied: (1) proof of the defendant’s guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with sufficient admonishment.” Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010) (quoting Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009)). “It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements.” Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006). “Great leeway is allowed to both counsel in a even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”

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28 closing argument. It is just that—an argument. A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position.” Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). Based on our review, we discern no statements by the Commonwealth that would warrant the relief Jackson seeks. During its summation following the guilt phase, the Commonwealth noted Jackson did not contest the facts that he was driving while intoxicated, that he was driving more than double the speed limit, nor that his actions caused Torline’s death. It then questioned why everyone was there “spending so much time on all of this.” These statements did not draw an objection. Thus, as previously stated, reversal is required only if we determine the prosecutor engaged in flagrant misconduct. “Misconduct is ‘flagrant’ if it ‘render[ed] the trial fundamentally unfair.’” Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020) (quoting Dickerson, 485 S.W.3d at 329). However, before addressing whether the Commonwealth acted flagrantly, we must first determine whether there was, in fact, misconduct committed. Here, the Commonwealth’s statements related to the failures of Jackson’s defense in light of the overwhelming evidence of his guilt. Comments on defense strategy are not improper, nor do they constitute misconduct. Contrary to Jackson’s suggestion, the Commonwealth made no improper statements relative to his invocation of the constitutional right to a jury trial. The comments were brief and directed at the relative strength of the parties’ positions. Indeed, we conclude “the remarks referred to . . . were well within

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29 the proper bounds of a closing argument and certainly did not affect the outcome of the trial.” Slaughter, 744 S.W.2d at 412. There was no misconduct, and certainly no reversible flagrant misconduct. During closing argument following the guilt phase, the Commonwealth asked the jury to impose a sentence of forty-one years to let Jackson know just how senseless and serious his crime was. It then stated “It’s also important because there’s an awful lot of people out there in the world drinking and driving, playing Russian roulette with everybody on the road. Let them see Christopher Jackson’s sentence too.” Jackson immediately objected, asserting the Commonwealth was making an improper “send a message” argument to the community. His objection was overruled. Generally, arguments seeking a conviction or lengthy sentence to send a message to the community are condemned. Two decades ago, this Court “strongly urge[d] the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments.” Brewer, 206 S.W.3d at 351. Here, however, the vast majority of the Commonwealth’s statements consisted of permissible references to the punitive and deterrent effect of criminal sentences, especially as related to Jackson, himself. [S]o long as the jury is well aware that it is sentencing the particular defendant before it—with his or her good points and bad—on the crime for which he or she has been convicted, there is no prejudice in the prosecutor commenting on the deterrent effect of that sentence. . . . [I]t is essentially illogical, at the sentencing phase, to say that the prosecutor cannot encourage the jury to impose a sentence that

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30 speaks to deterrence, as well as punishes the specific crime before it. Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009). Thus, the Commonwealth did not engage in misconduct simply by referencing the deterrent function of sentences in its closing argument. Additionally, [d]eterrence is clearly not intended for that defendant alone, but rather his sentence sends the message to all others so inclined that their crimes will be punished, and that a jury made up of local citizens will not tolerate such offenses. This is a significant part of the benefit of public trials. We continue, however, to disapprove of this argument at the guilt stage. And even at the penalty phase, the “send a message” argument shall be channeled down the narrow avenue of deterrence. Any effort by the prosecutor in his closing argument to shame jurors or attempt to put community pressure on jurors’ decisions is strictly prohibited. Prosecutors may not argue that a lighter sentence will “send a message” to the community which will hold the jurors accountable or in a bad light. Id. The penalty phase argument directed at drunken drivers and their risks to the travelling public was not error. CONCLUSION For the foregoing reasons, the judgement of the Kenton Circuit Court is affirmed. All sitting. Lambert, C.J.; Bisig, Conley, and Goodwine, JJ., concur. Keller and Thompson, JJ., concur in result only.

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31 COUNSEL FOR APPELLANT: Jennifer E. Hubbard Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Ken W. Riggs Melissa A. Pile Assistant Attorney General

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