NOT TO BE PUBLISHED
OPINION
CLAYTON, JUDGE.
This case comes before us on appeal from a decision of the trial court denying the Appellant's motion to suppress evidence he contends was obtained in violation of his Fourth Amendment rights. Appellant also argues the trial court erred in not allowing him to present a defense at trial. For the foregoing reasons, we affirm the decision of the trial court.
BACKGROUND INFORMATION
On October 27, 2009, two officers from the Kenton County Police Department, Detective Cory Warner and Officer Robert Bacon, went to Matthew Dieterlen's apartment to look for Tiffany Rose. The officers had a tip that Rose was staying at Dieterlen's apartment. Dieterlen answered the door for the officers and identified a woman inside the apartment as Rose.
Detective Warner testified that he observed three individuals in the apartment and that he stayed with them in the living room while Officer Bacon did a protective sweep of the apartment. During the sweep, Officer Bacon stated that he saw ammunition scattered on the floor of the apartment. Dieterlen was then questioned as to the location of any weapons in the apartment and he indicated there was a .30 caliber rifle located in the closet of the bedroom.
Officer Bacon found the weapon in the place Dieterlen had indicated and Detective Warner then ran a check on Dieterlen, finding that he was a convicted felon. He was placed under arrest immediately and was indicted for possession of a firearm by a convicted felon as well as Persistent Felony Offender II (PFO II).
During his trial, Dieterlen chose to represent himself. Dieterlen did not deny that the weapon was his, but tried to present a defense that he was afraid of a possible burglary and wanted to protect himself. He was convicted of both charges and received a one-year sentence for the firearm charge enhanced to five years by the PFO II conviction. The trial judge probated his sentence for a period of five years. This appeal followed from the trial and suppression hearing.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we must uphold the trial court's findings if they are supported by substantial evidence. See Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998); Canler v. Com., 870 S.W.2d 219, 221 (Ky. 1994), citing Harper v. Com., 694 S.W.2d 665 (Ky. 1985). Substantial evidence is "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972) quoting O'Nan v. Ecklar Moore Express, Inc., 339 S.W.2d 466, 468 (Ky. 1960). A trial court's findings of fact must be upheld unless they are clearly erroneous. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L. Ed. 2d 401 (1972); Roark v. Com., 90 S.W.3d 24, 28 (Ky. 2002).
In reviewing alleged errors involving evidentiary rulings by the trial court, we use the abuse of discretion standard of review. Tumey v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999). With these standards in mind, we review Dieterlen's allegation of error.
DISCUSSION
Dieterlen first contends that the evidence obtained at his apartment should have been suppressed by the trial court. While the Commonwealth argues that the officers were justified in making a protective sweep under the law, Dieterlen contends that their search went beyond the parameters of a protective sweep.
Under the law, when making an arrest, officers may make a protective sweep of the area to assure their safety. In Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L. Ed. 2d 276, 56 USLW 4281 (1990), the United States Supreme Court defined a protective sweep as "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." In Young v. U.S., 982 A.2d 672, 681 (D.C. 2009), the Court held that while a protective sweep of the immediate area does not require reasonable suspicion, if the protective sweep involved areas "beyond those immediately adjoining the place of arrest . . . at least reasonable suspicion," was required. Dieterlen asserts that the search made by the officers in this case went beyond the scope of this definition.
Dieterlen did not testify at the suppression hearing. Officer Bacon testified that he observed live rounds of ammunition on the floor of the living room and the bedroom area. Detective Warner testified that he did not see any ammunition in the living room where he was holding the individuals. He also stated that Rose was his prisoner at that time.
In Maryland, supra, the Court held that:
[A] protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
Maryland, 494 U.S. 325 at 335-36, 110 S. Ct. at 1099.
Dieterlen argues that Rose was under arrest and that the officers could have simply left with her. The trial court, however, found that Officer Bacon observed live rounds of ammunition on the floor of the immediate area and that he was justified in asking if there were any weapons in the area as part of a protective sweep. We find the trial court did not err in making this determination.
While Detective Warner testified that he did not see the ammunition on the floor, Officer Bacon stated that he did and the trial court believed him. We find, therefore that the trial court had substantial evidence to find that the officers were conducting a legitimate protective sweep within the definition the courts have given that concept. Thus, the trial court did not err in refusing to suppress the evidence of the weapon.
Next, Dieterlen argues that he should have been allowed to present a "lesser of two evils" defense on his behalf. As set forth above, Dieterlen chose to represent himself at trial with the Department of Public Advocacy providing stand-by counsel. When a defendant makes this decision, he is informed that he will be held to a certain standard. While the trial court in this action advised Dieterlen throughout the trial, Dieterlen did not preserve this alleged error. Dieterlen argues that it is palpable error and that, as such, did not have to be preserved in order to be reviewed. Kentucky Rules of Criminal Procedure (RCr) 9.54(2) provides that:
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
In this action, Dieterlen admits that he did not preserve the error by failing to object to the lack of a jury instruction on the "lesser of two evils" defense. This defense is set forth in Kentucky Revised Statutes (KRS) 503.030(1) which provides that this defense is available if the "defendant believes [the unlawful conduct] to be necessary to avoid an imminent public or private injury[.]" In this action, Dieterlen contends that there was a break-in before and this was his way of protecting himself from future break-ins. We do not find this to be an imminent possibility of injury and, therefore, it fails under KRS 503.030(1). Thus, we find no error and certainly not a palpable one.
We therefore affirm the decision of the trial court.
ALL CONCUR.
