Moore v. Commonwealth, 2015 Ky. LEXIS 1637

Police responded to a complaint about criminal activity at Moore's rental house; they smelled ammonia, saw Moore flee, secured the house, found methamphetamine lab equipment, and Moore admitted to using and manufacturing methamphetamine.
Moore was tried and convicted by a jury of manufacturing methamphetamine (first offense) and first-degree possession of a controlled substance; the jury recommended 15 and 3 years respectively (concurrent).
At a subsequent PFO (persistent felony offender) sentencing phase, the jury found Moore to be a first-degree PFO and recommended an enhanced total sentence of 50 years; the trial court adopted that sentence.
Moore sought to introduce testimony from his girlfriend, Melinda Keeton, recounting jailhouse statements by Dale (an alleged rival) that purportedly inculpated Dale and exculpated Moore; the trial court excluded that testimony as inadmissible hearsay under KRE 804 because Dale’s unavailability was not shown.
For the PFO phase, the Commonwealth relied solely on certified judgments (including a March 2006 two-year sentence) and parole-guideline materials; no witnesses testified about Moore’s custodial or release status as of the critical five-year window.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Keeton’s testimony recounting Dale’s out-of-court statements under KRE 804(b)(3) (statement against interest)	Keeton’s testimony should be admitted because Dale’s statements were against his penal interest and would tend to exonerate Moore; Dale would likely invoke the Fifth if called.	Trial court correctly excluded the testimony because the declarant (Dale) was not shown to be unavailable under KRE 804(a); mere speculation that he would claim the privilege is insufficient.	Affirmed exclusion: declarant unavailability must be shown (declarant must appear and assert privilege before a court ruling excuses them).
Sufficiency of evidence to support PFO finding; whether directed verdict should have been granted	The certified prior-judgment and parole-guideline evidence allowed a reasonable inference that Moore completed service within five years, satisfying KRS 532.080(3)(c)(1).	Documentary record did not establish Moore’s custodial/release status as of the relevant date; without witnesses or clear documentation, any finding would be speculative.	Reversed PFO conviction: evidence insufficient for a reasonable-juror inference beyond a reasonable doubt that any statutory PFO alternative applied; remand for sentencing on underlying convictions.

Wells v. Commonwealth, 892 S.W.2d 299 (Ky. 1995) (hearsay exceptions and their bases in reliability)
Marshall v. Commonwealth, 60 S.W.3d 513 (Ky. 2001) (declarant must appear and assert privilege for a court to rule unavailability)
Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (standard for reviewing sufficiency of evidence — view evidence in light most favorable to Commonwealth)
Shabazz v. Commonwealth, 153 S.W.3d 806 (Ky. 2005) (reasonable inferences from probation order may prove PFO element)
Martin v. Commonwealth, 13 S.W.3d 232 (Ky. 1999) (definition and limits of "reasonable inference")
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to jury and proved beyond a reasonable doubt)
Merriweather v. Commonwealth, 99 S.W.3d 448 (Ky. 2003) (proof of prior convictions is an indispensable element of a PFO charge)
Whittle v. Commonwealth, 352 S.W.3d 898 (Ky. 2011) (Commonwealth must present some evidence to support a PFO charge; conviction must rest on reasonable inference, not guesswork)