Nathan McClure v. Commonwealth of Kentucky, 2025-CA-0111

Background

McClure intentionally set a fire on his houseboat, and the fire spread to the Cooks' nearby storage building, destroying it. 1
The jury trial focused on whether McClure wantonly caused the destruction of the Cooks' building and whether the 911 recording and closing argument were admissible or proper. 2
The Commonwealth presented evidence that the Cooks had warned McClure not to start fires near the houseboat and had told him to move it because of the risk to their building. 3
Witnesses testified McClure may have been intoxicated, the houseboat was fiberglass and highly flammable, and security video showed the fire suddenly flaring up. 4
A 911 recording included an anonymous caller identifying McClure as the person responsible and describing him leaving the scene while the fire spread. 5
McClure testified he started the fire to burn wallboard, tried to prevent spread, and denied drinking; the jury convicted him of third-degree arson and first-degree criminal mischief. 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were the anonymous 911 statements testimonial under the Confrontation Clause? 7	McClure said the third call accused him after the emergency had ended.	The Commonwealth said the call sought ongoing emergency assistance.	No; the statements were non-testimonial. 8
Did the trial court abuse discretion admitting the 911 calls as hearsay exceptions? 9	McClure said the third call was unreliable, not contemporaneous, and not excited.	The Commonwealth said it was a present sense impression and excited utterance.	No reversible error; admission was proper and any error harmless. 10
Were the 911 statements inadmissible under relevance or prejudice rules? 11	McClure said the call's accusations and name-calling were unfairly prejudicial.	The Commonwealth said the calls were relevant to timing, location, and emergency response.	No abuse of discretion; prejudice did not substantially outweigh probative value. 12
Did the 911 statements require prior bad-acts notice or violate character evidence rules? 13	McClure argued the caller's comments were improper character evidence.	The Commonwealth said the statements described events that night, not prior bad acts.	No reversible error under KRE 404. 14
Did the prosecutor's closing argument amount to reversible misconduct? 15	McClure argued remarks about explosions and flammability lacked evidentiary support.	The Commonwealth said the comments were reasonable inferences from the evidence.	No palpable error or manifest injustice. 16

Key Cases Cited

Gasaway v. Commonwealth, 671 S.W.3d 298 (Ky. 2023) (general preservation of evidentiary objection 17)
Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004) (evidentiary rulings reviewed for abuse of discretion 18)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause bars testimonial out-of-court statements absent unavailability and prior cross-examination 19)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (statements are non-testimonial when made to meet an ongoing emergency 20)
McDonald v. Commonwealth, 436 S.W.3d 534 (Ky. App. 2013) (911 calls may be non-testimonial when aimed at resolving an ongoing emergency 21)
Thomas v. Commonwealth, 170 S.W.3d 343 (Ky. 2005) (factors for determining whether a statement is an excited utterance 22)
Garrett v. Commonwealth, 48 S.W.3d 6 (Ky. 2001) (closing argument may draw reasonable inferences but not unsupported facts 23)
Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010) (unpreserved misconduct is reversible only if flagrant and fundamentally unfair 24)