RENDERED: JANUARY 25, 2002; 2:00 p.m. NOT TO BE PUBLISHED NO CA MR COMMONWEALTH OF KENTUCKY

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1 RENDERED: JANUARY 25, 2002; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals NO CA MR ERNEST W. DAWAHARE APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LAURANCE B. VANMETER, JUDGE ACTION NO. 99-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION REVERSING and REMANDING ** ** ** ** ** BEFORE: BUCKINGHAM, EMBERTON AND TACKETT, JUDGES. EMBERTON, JUDGE: Ernest W. Dawahare was convicted of manslaughter in the second degree and operating a motor vehicle while under the influence. He alleges that the trial court erred in admitting testimony concerning his lack of remorse. We reverse and remand. On September 11, 1999, Dawahare began the evening by drinking a beer, taking a Valium and, then proceeding to local Lexington bars where he consumed more beer. At approximately 11:45 p.m., he left Kamikaze s, a Lexington bar, and proceeded down Main Street, traveling behind Deputy Jailer Stephen Mitchell. Traveling southbound, he turned left onto Rose Street

2 behind Mitchell and at the intersection of Vine and Rose, pulled into the left turn lane. Having the green light, Mitchell continued through the light and Dawahare turned left. At this time, Bradley Coffee was operating his motorcycle north on Rose Street. Dawahare struck the motorcycle and as a result of his injuries, Coffee died. The sole issue raised on appeal concerns the interjection of evidence by the Commonwealth concerning Dawahare s lack of remorse following the accident. Deputy Mitchell testified that immediately after the accident, Dawahare seemed unemotional and showed no remorse. Deputy James Primm, who arrived at the scene, relayed that Dawahare didn t really seem to care and was talking on a cell phone when he arrived. Finally, during closing, the Commonwealth commented on what would have been an appropriate response to a fatal accident. Dawahare objected to the admission of the testimony, but did not object to the Commonwealth s closing remarks. The threshold for the admissibility of evidence is the determination of relevancy. Kentucky Rules of Evidence (KRE) 401 provides that: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence is that which tends to establish or disprove an issue in the litigation. 1 1 O Bryan v. Massey-Ferguson, Inc., Ky., 413 S.W.2d 891 (1966). -2-

3 The defendant s lack of emotion immediately after a crime can be relevant if an inference of guilt can be drawn from the defendant s conduct such as where intent is an element of the offense or where there is an issue as to the defendant s knowledge of the crime. In this case, however, there is no issue that Dawahare s automobile struck Mr. Coffee s motorcycle. Dawahare was charged with manslaughter, second degree, a crime 2 requiring wantonness, not intentional conduct. The only issues in this case involved whether Dawahare was intoxicated and whether Dawahare had the right-of-way when he struck the motorcycle. As to Dawahare s intoxication, his reaction at the scene does not tend to make it more or less probable that he was under the influence of intoxicants. There was no evidence that intoxicated people are either more or less emotional when confronted with similar situations. Moreover, Dawahare admitted he was intoxicated and should not have been driving. Does the evidence that Dawahare was uncaring and showed no remorse after the accident tend to prove or disprove that he caused the accident? The jury could not have reasonably inferred from Dawahare s reaction the status of the traffic light nor the speed of the oncoming motorcycle. The evidence solicited from the Commonwealth was offered to prove only that Dawahare, having just killed a man with his vehicle, had no emotional reaction, or in simple terms, Dawahare is not a compassionate, likeable person. Lack of compassion or remorse is not an element of the offense. 2 Kentucky Revised Statutes (KRS)

4 The issue remains, however, whether the erroneously 3 admitted evidence was harmless error. Dawahare maintains that he had the green arrow and that the motorcycle was traveling at such a rate of speed that he could not avoid the collision. An autopsy of Mr. Coffey and a toxicology screening of his blood showed that Coffey had a blood alcohol content of.034. Dawahare produced a witness who testified that just prior to the accident Mr. Coffey was popping wheelies on his motorcycle and waving to his friends. Two other witnesses to the accident testified that Dawahare had the green arrow. There was also testimony from Patrick Johnson, a traffic engineer for the City of Louisville, that in his opinion and knowledge of the case, Dawahare would have had the green arrow. Having reviewed the record, we find that the evidence in this case is not overwhelming that Dawahare did or did not cause the death of Mr. Coffey. Dawahare, in proving his case, is in a precarious position. He admittedly committed an illegal act when he operated his vehicle while intoxicated but sought to prove that he did not cause the accident. His difficulties were undoubtedly compounded by the erroneous portrayal of him as a cold-hearted man with no emotional reaction after having been involved in an accident where another was killed. Absent the erroneous evidence, we must conclude that there is a substantial possibility that the result would have been different and, therefore, find the error prejudicial. The judgment is reversed and remanded for a new trial. 3 Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983). -4-

5 ALL CONCUR. BRIEF FOR APPELLANT: Henry E. Hughes G. Scott Hayworth Lexington, Kentucky BRIEF FOR APPELLEE: Albert B. Chandler III Attorney General Brian T. Judy Assistant Attorney General Frankfort, Kentucky -5-