## Facts

- Daniel Lee Moss shot Shawn Thompson at Moss’s residence in Simpson County, Kentucky, and called 911 reporting he had been attacked and had to shoot his assailant.
- When deputies arrived, Thompson was found mortally wounded at the base of the porch steps; Sarah Sanders was holding Thompson and screaming.
- Officers brought Moss, Sanders, and Christina Layle into the living room while Moss explained his account of the shooting.
- In the officers’ presence, Sanders yelled at Moss, “You shot him in the back for no reason,” and Moss did not respond.
- The defense asserted self-defense based on Moss’s claimed belief that Thompson was attacking him in his home.
- The Commonwealth argued Moss was not acting in self-defense and that he tampered with evidence by repositioning a sword near Thompson to suggest Thompson was armed.
- At trial, the Commonwealth introduced Sanders’s accusation and Moss’s silence; the prosecutor argued the silence was an admission.
- A jury convicted Moss of second-degree manslaughter and tampering with physical evidence.
- The Court of Appeals affirmed the convictions but vacated the tampering sentence and remanded for a new penalty phase on that count.
- The Kentucky Supreme Court granted discretionary review focused on the use of Moss’s silence.

## Issues

1. Whether Moss’s failure to respond to Sanders’s accusation was admissible as an adoptive admission under Kentucky Rule of Evidence 801A(b)(2).
2. Whether the prosecution improperly used Moss’s pre-arrest silence as substantive evidence of guilt, including through argument to the jury.
3. Whether prosecutorial explanation of the adoptive-admission doctrine misstated the law in a manner requiring reversal.

## Decision

- The court held the trial court erred by treating Moss’s silence in the chaotic, emotionally charged scene as an adoptive admission under KRE 801A(b)(2).
- The court held the prosecutor’s description of the rule was improper because it suggested a legal duty to deny accusations.
- The court concluded the errors were harmless and did not warrant reversal of the convictions.
- The court rejected the broader challenge to the use of pre-arrest silence, reasoning the Commonwealth permissibly relied on inconsistencies in Moss’s accounts rather than silence as such.
- The court affirmed the Court of Appeals’ disposition, leaving the convictions intact and the remand for resentencing on the tampering count undisturbed.

## Legal Principles

- Silence constitutes an adoptive admission only when the circumstances would naturally call for a denial by a reasonable person and the silence manifests adoption or belief in the statement’s truth.
- Chaotic, emotionally charged conditions and ongoing interaction with law enforcement can negate any reasonable expectation that a person would respond to an accusation, defeating adoptive-admission treatment.
- Prosecutors may not argue or imply that the law imposes a duty to respond to accusations; such argument misstates evidentiary law and risks juror confusion.
- Evidentiary and argument errors do not require reversal when the reviewing court determines the errors did not affect the verdict.
- The prosecution may use inconsistencies in a defendant’s voluntary pre-arrest statements as substantive evidence, provided it does not treat mere pre-arrest silence as guilt.

## Conclusion

The Kentucky Supreme Court ruled that Moss’s nonresponse to an on-scene accusation was improperly admitted and argued as an adoptive admission, but affirmed the convictions because the missteps did not affect the jury’s verdict and the Commonwealth’s case rested on other evidence, including inconsistencies in Moss’s accounts and proof supporting tampering.


Moss v. Commonwealth, 531 S.W.3d 479 (Ky. 2017)