NOT TO BE PUBLISHED

OPINION

STUMBO, JUDGE.

Robin Mapel appeals from a judgment entered by the Rowan Circuit Court after a jury found him guilty of escape in the second degree. He argues that the Commonwealth elicited inadmissible opinion testimony regarding the ultimate question of fact, and that the trial court erred in denying his motion for a mistrial during the penalty phase.

On October 16, 2008, Mapel and two other inmates of the Montgomery County Regional Jail were helping Deputy Jailer Jean Daniels unload commissary orders. As they were carrying the boxes from a large FedEx truck that was backed into an open parking lot outside the jail, Mapel disappeared. A search was made, and it was discovered that he had left the jail. The Jailer, Dwayne Myers, searched the neighboring areas without success. The Kentucky State Police were notified, and Mapel was apprehended the following day.

A jury found Mapel guilty of escape in the second degree, and he received the maximum sentence of five years. This direct appeal followed.

Mapel's first argument concerns the admissibility of testimony from Deputy Jailer Daniels and Jailer Dwayne Myers. On direct examination, the prosecutor asked Daniels whether Robin Mapel had escaped from the Montgomery County Regional Jail. The trial court overruled defense counsel's objection that the question called for a conclusion of fact and law. During re-direct examination, the prosecutor again asked Daniels whether Robin Mapel had escaped from her custody. Defense counsel repeated his objection as Daniels replied, "Yes, he did." The trial court turned to Daniels and asked, "He left your custody, I presume?" She replied, "He left my custody sir. He did, he escaped on me."

Jailer Myers testified that he was in district court when he received a call that Mapel had escaped from custody. Defense counsel objected on the ground that it was a legal conclusion. The trial court asked the witness, "I guess you got the call that he left the jail right, without permission?" Myers agreed with the trial court's statement.

Our standard when reviewing a question of admissibility of evidence is whether the trial court abused its discretion. Johnson v. Commonwealth, 105 S.W.3d 430, 438 (Ky. 2003). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Mapel argues that Daniels and Myers gave inadmissible opinion testimony regarding the ultimate issue of fact, i.e., did Mapel escape from the jail. The rationale behind excluding such evidence is that "[t]he issue of guilt or innocence is one for the jury to determine[.]" Nugent v. Commonwealth, 639 S.W.2d 761, 764 (Ky. 1982). Mapel contends that the testimony using the word "escape" to describe his conduct deprived him of his right to be tried by an impartial jury, and violated his due process right to fundamental fairness.

Such testimony is not always inadmissible, however. The Kentucky Supreme Court has advised that "the common sense view is to receive the opinion testimony where it appears that the trier of fact would be assisted rather than impeded in the solution of the ultimate problem." Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). Under Kentucky Rules of Evidence (KRE) 701, a non-expert witness is permitted to give an opinion or inference if it is limited to those which are:

KRE 602 "further refines the scope of permissible lay opinion testimony, limiting it to matters of which the witness has personal knowledge." Cuzick v. Commonwealth, 276 S.W.3d 260, 265 (Ky. 2009). The testimony of the deputy jailer and the jailer fell within the parameters of these two rules of evidence. Their testimony was limited to their perception and personal knowledge, it was helpful to the determination of a fact in issue, and was not based on any specialized knowledge.

Moreover, although "a witness generally cannot testify to conclusions of law[,]" Tamme v. Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998), the use of the everyday term "escape" by Daniels and Myers was not derived from the type of specialized legal knowledge that would render it a "conclusion of law." Their testimony is clearly distinguishable from the type of testimony that was deemed inadmissible in Wyatt v. Commonwealth, 219 S.W.3d 751 (Ky. 2007). In that case, the witness, Special Agent Thielhorn, testified at some length on the law of solicitation.

Id. at 758. Daniels and Myers made no express conclusions as to how Mapel's conduct conformed to the legal definition of escape, which is "departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted[.]" KRS 520.010. The trial court did not abuse its discretion in allowing their testimony.

Mapel's second argument is that the trial court erred when it denied his request for a mistrial after the Commonwealth introduced evidence of amended charges during the sentencing phase of his trial. The Commonwealth called Chris Caldwell, a Rowan County probation officer, as a witness. Caldwell testified that he is familiar with certified court records and calculations of parole eligibility. The prosecutor handed defense counsel copies of court records he was planning to introduce into evidence. Defense counsel objected, stating that evidence of prior convictions was admissible but that indictments were not. The trial court sustained the objection. The prosecutor handed Officer Caldwell the documents, and asked him what Mapel had been charged with in a Montgomery County case. Caldwell responded that Mapel was charged with fleeing and evading in the first degree. Defense counsel objected that the court was allowing the witness to read the indictment which the court had just ruled was not admissible. The court responded, "Just get to the conviction." Defense counsel moved for a mistrial. The trial court denied the motion, but directed defense counsel to redact the documents. The record nonetheless contains as an exhibit a final order and judgment on a plea of guilty relating to the fleeing and evading charge. From this document, the jury would have learned that Mapel had originally been charged with fleeing and evading in the first degree, a felony, but pursuant to a plea agreement, the charge had been reduced to fleeing and evading in the second degree, a misdemeanor.

"KRS 532.055(2)(a) permits the introduction of prior convictions of the defendant, not prior charges subsequently dismissed." Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996). Mapel argues that the jury's decision to recommend the maximum sentence of five years illustrates the prejudicial effect of learning that he had been charged with fleeing and evading in the first degree. He relies on Brown v. Commonwealth, 763 S.W.2d 128 (Ky. 1989), in which the admission of evidence of a defendant's prior acquittal was held to be reversible error. "Evidence that one has been tried and acquitted does not show bad character. Such evidence is without any probative value, but is potentially prejudicial in that the jury may be persuaded that the defendant escaped justice in the earlier case and resolve to see that it does not happen again." Id. at 130.

Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky. 2002).

Two other cases from the Kentucky Supreme Court are also worth discussing. In Chavies v. Commonwealth, 354 S.W.3d 103 (Ky. 2011), a defendant's indictment, showing dismissed and amended charges, was introduced during the penalty phase of the trial. The issue was the same as the case sub judice, but it was not preserved. The Court reviewed the issue for palpable error. The Court held the introduction of the dismissed and amended charges to be erroneous, but not palpable error. The Court found that the dismissed and amended charges were not pointed out to the jury by the trial judge, Commonwealth, or Commonwealth's witness. It also found that the defendant had multiple other convictions, which would support the jury's recommended sentence. Finally, the Court found relevant the fact that the defendant did not receive the maximum sentence. Ultimately, the Court held that even though the introduction of the dismissed and amended charges was erroneous, it did not seriously affect the fairness of the proceeding.

In Blane v. Commonwealth, 364 S.W.3d 140 (Ky. 2012), during the penalty phase of the trial, the Commonwealth elicited testimony from a deputy circuit clerk about past criminal convictions.

Id. at 151-152. Again, this issue was not preserved and was reviewed by the Court for palpable error. Unlike in Chavies, the Court found palpable error. In comparing the facts of the Blane case before it to the Chavies case, the Court found:

Id. at 152-153 (citation omitted).

In the case at hand, we have a situation somewhere between Chavies and Blane. Here, the issue was preserved for review, but does it meet the "manifest necessity" requirement for granting a mistrial? We think not. Although the evidence that Mapel had originally been charged with fleeing and evading in the first degree was inadmissible, it was not sufficiently prejudicial to warrant a mistrial in light of the fact that he was convicted of an amended charge, unlike the defendant in Brown who was acquitted of the charges. Also, the original charges were only fleetingly mentioned to the jury. Finally, even though Mapel received the maximum sentence for second-degree escape, he also did not refute the fact that he left the jail without permission.1 Under these circumstances, the extraordinary remedy of a mistrial was not warranted and the trial court did not abuse its discretion in denying the motion.

For the foregoing reasons, the Rowan Circuit Court judgment is affirmed.

ALL CONCUR.