TERRY GONTERMAN V. COMMONWEALTH OF KENTUCKY — MEMORANDUM OPINION OF THE COURT AFFIRMING

IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION” THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.

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RENDERED: OCTOBER 22, 2026 NOT TO BE PUBLISHED Supreme Court of Kentucky 2025-SC-0311-MR TERRY GONTERMAN APPELLANT ON APPEAL FROM MEADE CIRCUIT COURT V. HONORABLE BRUCE T. BUTLER, JUDGE NO. 23-CR-00115 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING Terry Gonterman appeals as a matter of right from his convictions for first‑degree trafficking in a controlled substance and for being a first‑degree persistent felony offender (PFO-1). He challenges the denial of his motions to suppress evidence seized during the execution of a search warrant and asserts multiple instances of prosecutorial misconduct during closing argument and the penalty phase. We affirm. I. FACTS AND PROCEDURAL HISTORY Detective Joshua Conner interviewed Brandon Flowers regarding an unrelated murder investigation on June 21, 2023. Near the end of the interview, Flowers stated that he regularly buys methamphetamine (meth) from Terry Gonterman at a barn on Turkey Heaven Road, with the most recent time being “the day before yesterday.” While there, Flowers saw Gonterman with

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2 baggies of “eight balls” of meth. Flowers said that Gonterman and Patricia Smallwood lived in the barn. Conner applied for a search warrant a few hours later that same day. He described Flowers as a confidential informant in the affidavit for the search warrant to protect his identity. It listed the address of the barn as 770 Turkey Heaven Road in Payneville. Conner executed the warrant that day with the assistance of Deputy Jailer J.J. Scarborough and other officers. Gonterman and Smallwood were outside the barn when they saw the officers. They attempted to run away but were quickly apprehended. Scarborough saw Gonterman toss plastic baggies while fleeing. The police seized meth and related evidence after executing the search warrant. Two baggies of meth were found between the barn and where Gonterman was arrested. More than a dozen baggies of meth were found in a purple Crown Royal bag inside the barn. The police also seized two glass pipes with suspected meth residue, a box of zip-tie baggies, and a small amount of marijuana. Gonterman’s wallet contained $1,151.00. More meth was found in a car parked near the barn. Gonterman and Smallwood were arrested on drug-related charges and outstanding warrants. Other people who were at the barn were allowed to leave because they did not have outstanding warrants. Gonterman was originally charged with first-degree trafficking in meth (second or subsequent offense) and possession of marijuana. A superseding

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3 indictment added a first-degree persistent felony offender charge. Prior to trial, the Commonwealth amended the trafficking charge to first offense and dismissed the marijuana charge. Gonterman filed a motion to suppress the seized evidence, arguing that the warrant listed the wrong address. While Conner’s affidavit listed the barn belonging to 770 Turkey Heaven Road, the barn actually was property of 780 Turkey Heaven Road. The trial court held a suppression hearing on June 11, 2025, two weeks before trial, which included Conner’s testimony and arguments from counsel. The court denied the motion, holding the affidavit described the property with sufficient particularity. The Commonwealth did not reveal the identity of informant Flowers until June 16, 2025. Based on this, Gonterman filed a second motion to suppress late on June 20, which was the Friday before trial. The court held a brief hearing outside the presence of the jury on Monday, June 23, but did not take additional evidence and denied the motion. Conner and Scarborough testified at trial about their respective roles in conducting the search of the barn, seizing the evidence, and arresting Gonterman and Smallwood. Conner testified that Flowers was not a traditional confidential informant and did not receive leniency for providing the information about Gonterman. A subpoena was issued for Flowers, but he was not served with process and did not testify.

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4 The physical evidence seized during the search of the barn was introduced at trial. A state crime lab analyst testified that the one baggie submitted for testing was positive for meth. Smallwood testified she lived in the barn with Gonterman for a couple of months before being arrested. She saw Gonterman bring meth into the barn, package it, and sell it to multiple people, including sales on the day of their arrest. She was arrested on outstanding warrants, including possession of meth, which she had pled guilty to in 2023 but had not yet been sentenced. On the day of her sentencing, the Commonwealth approached her, and she agreed to testify truthfully in Gonterman’s case. An order entered on July 16, 2025, dismissed Smallwood’s case without prejudice. At the conclusion of all the testimony, the court issued jury instructions for first-degree trafficking in a controlled substance two grams or more of meth as well as lesser included instructions of first-degree trafficking less than two grams of meth and first-degree possession of a controlled substance. The jury found Gonterman guilty of first-degree trafficking two grams or more of meth. At the conclusion of the penalty phase, the court instructed the jury on PFO-1. The jury found Gonterman guilty of being a PFO-1 and recommended the maximum twenty-year sentence. The court entered a judgment and sentence in accordance with the jury’s verdict and sentencing recommendation, and Gonterman filed this appeal.

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5 II. ANALYSIS A. The Trial Court Properly Denied the Motions to Suppress. Gonterman appeals the trial court’s denial of his two motions to suppress the evidence seized from the barn on Turkey Heaven Road pursuant to a search warrant. He argues that the warrant was invalid because: (1) Detective Conner used misleading information from an informant whose reliability had not been established, misstated the informant’s status as a “confidential informant,” and failed to corroborate the tip; (2) the affidavit contained intentional or reckless falsehoods requiring suppression under Franks v. Delaware, 438 U.S. 154 (1978); and (3) the warrant was fatally defective because it listed the wrong street address. The trial court found that none of the informant information was shown to be false, Conner corroborated material details, the physical description of the barn cured the minor address discrepancy, and the issuing judge had a substantial basis for concluding that probable cause existed. The issue on appeal is whether those factual findings are supported by substantial evidence, and whether the trial court correctly determined that the warrant-issuing judge had a substantial basis for finding probable cause under the totality of the circumstances. The Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution require “substantial proof” establishing a probable-cause belief that evidence of criminal activity will be found at the place to be searched. Commonwealth v. Master, 706 S.W.3d 140, 147 (Ky. 2024); Illinois v. Gates, 462 U.S. 213, 237 (1983). Probable cause is a

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6 “practical, commonsense” determination, made by the issuing judge, that under all the circumstances set forth in the affidavit there is a “fair probability” that contraband or evidence of a crime will be discovered. Minks v. Commonwealth, 427 S.W.3d 802, 810 (Ky. 2014) (quoting Gates, 462 U.S. at 238). A trial court reviewing the issuance of a search warrant asks, “whether under the totality of the circumstances presented within the four corners of the affidavit, a warrant‑issuing judge had a substantial basis for concluding that probable cause existed.” Master, 706 S.W.3d at 147. This review is intentionally deferential. In the warrant context, courts do not undertake de novo review of the probable-cause determination but instead pay “great deference” to the issuing judge’s commonsense assessment. Id. On appeal, our review of a suppression ruling involving a warrant has two prongs. First, we consider whether the trial court’s findings of fact are supported by substantial evidence. If so, they are conclusive. Second, we determine whether the trial court correctly applied the substantial-basis test— whether the issuing judge had a substantial basis for concluding probable cause existed—based solely on the four corners of the affidavit and without resort to extrinsic evidence. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). Applying our deferential standard of review, we first ask whether the trial court’s findings of fact are supported by substantial evidence, and then whether the court correctly determined that the issuing judge had a

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7 substantial basis for finding probable cause. We affirm the trial judge’s denial of Gonterman’s suppression motions. Conner’s affidavit stated that a confidential informant reported having recently and regularly purchased methamphetamine from Gonterman at a barn on his mother’s property, where two wanted individuals—including Gonterman—were residing. The affidavit stated: A Confidential Informant (CI) has stated that two wanted individuals are residing in a barn located on the property mentioned previously on Turkey Heaven Rd. The property is owned by the mother of one wanted individual, Terry Gonterman. Gonterman has previously been located at this address. The CI has advised that they have recently and regularly purchased narcotics, specifically methamphetamine, from Terry Gonterman at this residence. The CI states that they have been to this location numerous times and on every occasion observed and spoken to both individuals. Based on this information, Conner stated in the affidavit that he confirmed the address and location belonged to Gonterman’s mother, that the description and other information provided by the informant is accurate, and listed the numbers of the arrest warrants in Gonterman’s three Meade Circuit Court cases. The affidavit made no statement about the informant’s reliability. The trial court made findings of fact in its orders denying the motions, which we affirm since they are based on substantial evidence. The trial court stated Conner acted on information from a confidential informant to obtain a search warrant for 770 Turkey Heaven Rd, Payneville, KY, which authorized “the search of ‘a single family mobile home approximately 50 yards from the roadway . . . faded yellow/white in color’ with ‘several outbuildings located on

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8 the property.’” The warrant authorized the search of Gonterman, Smallwood, and a “‘large barn on the curtilage and all parts therein.’” The findings of fact continue: 2) According to the attached affidavit, prior to obtaining the search warrant, Officer Conner was informed by the confidential informant that two (2) wanted individuals were residing in a barn on the property, which was owned by Defendant’s mother, and that Defendant had previously been located at this property. The confidential informant further advised that they had recently bought methamphetamine from Defendant at this place, had visited numerous times in the past, and had observed and spoken to both of the wanted individuals. 3) Acting on the information received, Officer Conner independently confirmed that the aforementioned property was owned by Defendant’s mother and the description of the location was accurate. Conner further confirmed that Defendant and Ms. Smallwood were wanted on numerous warrants in Meade and Breckinridge Counties. In the trial court’s conclusion of law in its first order, it stated it was “convinced that Officer Conner committed no serious error, if any error, in obtaining and executing the search warrant.” The court concluded that it was reasonable for the barn to be listed as either 770 or 780 Turkey Heaven Road and that the physical description of the property to be searched provided sufficient notice of what was to be searched. In the second order, the court stated that Gonterman did not identify any statements that were in fact false. Instead, the court perceived Gonterman’s argument was that “the search warrant was faulty because the information provided in the affidavit was not provided by a reliable source and verified through a diligent independent

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9 investigation, and therefore it was reckless to rely on the warrant and the attached affidavit.” The trial court rejected this argument, concluding: Based on the totality of the circumstances, the Court finds that the warrant at issue here was backed by probable cause. While the information provided by the confidential informant, taken by itself, may not have been sufficient evidence to warrant an immediate search, it was sufficient to, at least, arouse suspicion, given Defendant’s prior run-ins with law enforcement. The information provided by the informant was then corroborated through an independent investigation by Officer Conner. Taken together, these circumstances established a “fair probability” that evidence of a crime would be found at the location and on the individuals described in the warrant. Based on this, we affirm the trial court’s orders denying the motions to suppress. The affidavit places Gonterman at a barn on his mother’s property. Gonterman had existing warrants for his arrest. The informant recently bought meth from Gonterman at the barn and has done so regularly. The affidavit thus presented information from a known informant, confirmed in material respects, and placed Gonterman at the location where meth was reported to be sold. Conner verified Gonterman’s mother owned the barn and the description of the property. He also listed the three circuit cases that had warrants for Gonterman’s arrest. These corroborative steps of verifying ownership, confirming the presence of outstanding warrants, and matching the location description supported the issuing judge’s commonsense conclusion under Gates that the informant’s statements were reliable. This was sufficient to allow the issuing judge to conclude that a fair probability exists that Conner would find meth at the barn Gonterman was staying at on his mother’s property.

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10 Gonterman’s principal challenge focuses on Conner’s use of the term “confidential informant” in the affidavit and asserts that the affidavit failed to establish Flowers’s reliability. This argument, however, rests on a hypertechnical reading of the affidavit and is inconsistent with the practical, commonsense approach required by Gates and Kentucky precedent. Gates stated that a de novo review of the facts contained in the affidavit was inappropriate because it leads to an “overly technical analysis” and “after- the-fact scrutiny by courts” regarding the sufficiency of an affidavit. Pride, 302 S.W.3d at 48: (quoting Gates, 462 U.S. at 236). This Court favored a commonsense application over a hypertechnical one when adopting the Gates standard for probable cause. Beemer v. Commonwealth, 665 S.W.2d 912, 914 (Ky. 1984). This language traces back to United States v. Ventresca, 380 U.S. 102, 108 (1965), which instructs that affidavits must be more than “purely conclusory” so that the issuing judge is not reduced to a “rubber stamp” for the police. When the affidavit details circumstances and offers reasons for crediting the informant that led the judge to find probable cause and issue a warrant, then a reviewing court should not “invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Id. at 109. Kentucky has repeatedly affirmed this approach. See Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). Gonterman’s argument rests on a narrow and formalistic interpretation of an internal Sheriff’s Office policy, rather than on the constitutional

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11 standards that govern probable‑cause determinations. Whether Flowers met the policy’s definition of a “confidential informant” does not alter the commonsense analysis required by Gates and does not undermine the substantial basis the issuing judge had to credit the information Conner included in his affidavit. Though we have disposed of Gonterman’s hypertechnical reliance on the term “confidential informant,” it is appropriate to consider whether the affidavit contained sufficient information about the reliability of Flowers’s information for the trial court to deny the motions to suppress. Flowers was not an anonymous tipster. His identity was known to law enforcement, and the trial court found no evidence suggesting his statements were false. In assessing whether information supplied by an informant establishes probable cause, courts evaluate reliability under the totality of the circumstances framework. A central distinction is whether the informant is known or anonymous. As we recently reaffirmed, known informants are more reliable because their reputation can be assessed and they can be held responsible if their allegations turn out to be fabricated. Vincent v. Commonwealth, 706 S.W.3d 94, 100 (Ky. 2024) (quoting Florida v. J.L., 529 U.S. 266, 270 (2000)). For this reason, “a bare anonymous tip is insufficient to establish probable cause.” Rawls v. Commonwealth, 434 S.W.3d 48, 58 (Ky. 2014). Thus, knowing the identity of the informant—whether or not it is disclosed in the affidavit—provides an indicium of reliability and may reduce

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12 the extent of corroboration necessary under the totality of the circumstances analysis. But merely knowing the informant’s identity does not automatically provide probable cause. Vincent, 706 S.W.3d at 101–02. An informant’s veracity, reliability, and basis of knowledge are “relevant considerations in the totality of the circumstances analysis,” but they are not dispositive. Lovett v. Commonwealth, 103 S.W.3d 72, 77 (Ky. 2003) (quoting Gates, 462 U.S. at 233). Less proof about the informant can be balanced by other factors affecting the reliability of the tip. Id. at 77–78. One such factor is an informant’s firsthand observation. As Lovett explains, when a tip contains an “explicit and detailed description of alleged wrongdoing” and reflects events “observed first‑hand,” it is entitled to greater weight. 103 S.W.3d at 78 (quoting Gates, 462 U.S. at 234). Likewise, direct observation of criminal activity strengthens a tip’s reliability. See Rawls, 434 S.W.3d at 59. We summarized these principles in Vincent, explaining that an informant’s known identity “is not definitive” and that informant reliability operates on a “sliding scale” under the totality of the circumstances. 706 S.W.3d at 101–02. These considerations frame our analysis of Flowers’s statements. Applying these principles, Flowers’s statements in the affidavit carried significant indicia of reliability under the totality of the circumstances. Flowers was not an anonymous tipster. His identity was known to Conner throughout the investigation, and the trial court found no evidence that any of Flowers’s

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13 statements were false. Flowers also reported information derived from firsthand observation. He told Conner that he had “recently and regularly” purchased methamphetamine from Gonterman at the barn, had been to the location “numerous times,” and had directly observed both wanted individuals residing there. These details are the type of explicit, firsthand descriptions of criminal activity that Lovett and Gates recognize as enhancing reliability. Moreover, several critical components of Flowers’s tip were corroborated by Conner’s independent investigation. Conner confirmed that the barn sat on property owned by Gonterman’s mother, verified the description of the location, and established that both Gonterman and Smallwood were wanted on outstanding warrants. Under the “sliding scale” approach described in Vincent, Flowers’s known identity, firsthand observations, and the corroborative steps taken by Conner together provided the issuing judge with a substantial basis to credit the tip and conclude that a fair probability existed that meth trafficking was occurring at the barn. Gonterman also argues that Detective Conner’s affidavit contained intentionally or recklessly false statements, requiring suppression under Franks. A defendant raising a Franks challenge must make a substantial preliminary showing that the affidavit included a knowingly or recklessly false statement and that the affidavit, purged of the challenged material, would no longer establish probable cause. United States v. Brown, 732 F.3d 569, 575 (6th Cir. 2013). The trial court found that Gonterman failed to meet that threshold. It expressly concluded that “nowhere in Defendant’s motion to

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14 suppress is it established that the information relied on by Detective Conner was actually false,” and further observed that Conner “committed no serious error, if any error, in obtaining and executing the search warrant.” Those findings are supported by substantial evidence and are binding on appeal. The record shows no intentional or reckless falsehood. Conner accurately reported the information Flowers provided and independently verified key details, including the identity of the wanted individuals and the ownership and description of the property. Any disagreement over whether Flowers met the Sheriff’s Office internal definition of a “confidential informant” does not transform the affidavit into a misleading or reckless submission; internal policy classifications do not govern the constitutional inquiry under Franks. Because Gonterman failed to demonstrate any intentional or reckless misrepresentation, and because the affidavit’s remaining content amply supported probable cause, the trial court correctly denied the Franks challenge. The address discrepancy in the warrant does not undermine its validity. The trial court found that the barn had no distinct postal address and that “either 770 Turkey Heaven Rd or 780 Turkey Heaven Rd could reasonably be listed as the proper address,” because the warrant included a detailed physical description identifying the structure to be searched—a “large barn on the curtilage and all parts therein,” located behind a single‑family mobile home approximately fifty yards from the roadway—which allowed officers to locate the correct place without difficulty. Minor errors or inexact address information

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15 does not invalidate a warrant when, as here, the description otherwise enables officers to identify the intended location with reasonable effort. McCloud v. Commonwealth, 279 S.W.3d 162, 165 (Ky. App. 2007). The trial court’s factual findings on this point are supported by substantial evidence, and its conclusion that the issuing judge had a substantial basis for determining which structure was to be searched was correct. In conclusion, the trial court’s factual findings are supported by substantial evidence, and its conclusion that the issuing judge had a substantial basis for finding probable cause was correct. Flowers was a known informant who provided detailed, firsthand observations of recent trafficking activity, and Conner corroborated key aspects of the tip, including the location, ownership, and the wanted status of Gonterman and Smallwood. The minor address discrepancy did not impair the warrant’s particularity, as the barn was described with sufficient detail to permit officers to identify the structure to be searched. Gonterman failed to make the substantial preliminary showing required under Franks, as the record does not establish any intentional or reckless falsehood in the affidavit. Evaluated under the practical, commonsense approach required by Gates and Kentucky precedent, the warrant was valid and supported by probable cause. Accordingly, we affirm the trial court’s denial of the motions to suppress. B. Unpreserved Allegations of Prosecutorial Misconduct Do Not Require Reversal. Gonterman next argues that several remarks made by the prosecutor during closing argument and the penalty phase amounted to prosecutorial

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16 misconduct warranting reversal. He contends the prosecutor mischaracterized Patricia Smallwood’s plea agreement, misstated the effect of good‑time credit on parole eligibility, improperly elicited testimony about a previously dismissed PFO charge, and improperly invoked the jurors’ emotions by suggesting their families were potential victims of future harm. Because Gonterman did not object to any of the prosecutor’s challenged comments, our review is for palpable error under Rule of Criminal Procedure (RCr) 10.26. A palpable error is one that is “easily perceptible, plain, obvious, and readily noticeable,” and relief is appropriate only upon a determination that “manifest injustice has resulted from the error.” Cisco v. Commonwealth, 730 S.W.3d 800, 805 (Ky. 2025). To establish manifest injustice, a defendant must show the “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law,” meaning the defect must be “shocking or jurisprudentially intolerable.” Id.; Barrett v. Commonwealth, 677 S.W.3d 326, 335–36 (Ky. 2023). Unpreserved allegations of prosecutorial misconduct warrant reversal only when the misconduct is flagrant and “so serious as to render the entire trial fundamentally unfair.” Id. at 332. In determining whether improper comments rise to flagrant misconduct, we apply the well-established four-factor test: (1) whether the remarks tended to mislead the jury or to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4)

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17 the strength of the evidence against the accused. Cisco, 730 S.W.3d at 811 (quoting Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016)). This four-part test applies only after a court determines that the prosecutor’s comments were improper. Cisco, 730 S.W.3d at 811. Whether improper comments justify relief also depends on the “overall fairness of the trial.” Barrett, 677 S.W.3d at 332. Prosecutors have “wide latitude” in closing argument to comment on the evidence and draw reasonable inferences from it, but they may not misstate the law, mislead the jury, or invite speculation unsupported by the record. Id. at 333. A single improper comment does not necessarily render a trial fundamentally unfair, especially where the evidence is strong, and the remark is brief and not repeated. Id. at 335. 1. Comment on Smallwood’s Deal In the guilt-phase closing, the prosecutor referenced Patricia Smallwood’s plea agreement and suggested that she had already resolved her charges. He acknowledged “cutting a deal” with her to testify against Gonterman but minimized the effect by telling the jury she was “going home anyway.” Gonterman argues this misled the jury. The prosecutor’s statements here were brief, based on evidence in the record, and responsive to defense attacks on Smallwood’s credibility. Kentucky law offers wide latitude to counsel in closing argument, including freedom to address the opposing party’s tactics and explain why a witness may or may not be credible. Unlike the improper presumption‑of‑innocence comment in Barrett, 677 S.W.3d at 332, which mischaracterized a legal standard, the prosecutor’s

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18 remark here did not misstate the law or suggest an impermissible inference. It neither tended to mislead the jury nor undermined the overall fairness of the proceeding. The comment was isolated, not repeated, and the evidence of guilt was strong. None of the four factors support a finding of flagrant misconduct, and the remark falls well short of palpable error. 2. Probation Officer Testimony Gonterman next argues that the Commonwealth misled the jury about parole eligibility by questioning a probation officer about good‑time credit and the possibility of early release. The officer said she was not familiar with how good-time credits are calculated. The Commonwealth then asked if she had heard of inmates being released after four-and-a-half years when convicted of a Class C felony and PFO, and she said she had. The Commonwealth committed error, but it was not flagrant. While the Commonwealth may ask about good-time credits, the information must “accurately reflect the law.” Cox v. Commonwealth, 399 S.W.3d 431, 434 (Ky. 2013); Kentucky Revised Statute (KRS) 532.055. However, the leading question suggesting the answer that a person could serve out a Class C sentence enhanced by PFO after the officer said she was not familiar with good-time calculations was not supported by the evidence and beyond the witness’s personal knowledge. The error is harmless due to Gonterman’s extensive criminal history involving drugs, his three active warrants, and the more than fifteen individual baggies of meth found during the search. This isolated improper question did not result in a manifestly unjust sentence.

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19 Additionally, the Commonwealth asked the officer about a PFO charge that had been dismissed against Gonterman. It is settled law the Commonwealth cannot ask about dismissed charges during the penalty phase. Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013). On appeal, the Commonwealth acknowledges the error but argues that it did not result in a manifestly unjust sentence. We agree given the evidence of guilt in this case and Gonterman’s history. This limited reference was harmless error and did not render the penalty phase fundamentally unfair. 3. Penalty Phase Closing Finally, Gonterman contends the prosecutor improperly invited the jurors to view their families as potential victims of future harm by drug trafficking. During the penalty phase closing, the Commonwealth said that “he went to every door he could” during his campaign that he would do the job “the right way” and put on “the right case” and that he would “not amend or dismiss a PFO because those are the people that hurt us the most. Those are the people that keep hurting us.” The Commonwealth pointed at Gonterman and said he knows meth breaks people and “has lived that . . . and will serve it to your kids . . . brothers . . . siblings . . . sisters, everybody. They don’t care.” Closing argument in the penalty phase should be focused on determining a fair sentence based on the facts of the case for a particular defendant. It should not be directed to fulfilling campaign promises or aimed at protecting the family and friends of the jury. These arguments were clear error, but the defense did not object. The trial court had instructed the jury regarding how to

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20 consider sentencing information. In context, the comments fall short of the “shocking or jurisprudentially intolerable” defect required for palpable error. Accordingly, although the prosecutor’s remarks were improper, they do not rise to flagrant misconduct and do not warrant reversal. In conclusion, although there were several instances of misconduct, none were flagrant and did not render the trial fundamentally unfair. The comments concerning Smallwood’s plea agreement were brief, based on the record, and responsive to defense strategy. The parole‑eligibility question was isolated and did not mislead the jury, but the question about serving out in five years was improper. The reference to a dismissed PFO charge, while erroneous, was fleeting and did not prejudice the jury given the weight of the proof. The prosecutor’s argument about his campaign promises and future harm to the jurors’ family members, though clear error, did not result in manifest injustice. Considered either individually or cumulatively, these errors do not warrant reversal. Viewing the challenged comments in context and under the four‑factor flagrant‑misconduct test, they do not meet the demanding threshold for unpreserved prosecutorial‑misconduct claims. Accordingly, reversal is not warranted. III. CONCLUSION For the foregoing reasons, the judgment of the Meade Circuit Court is affirmed. The search warrant was supported by probable cause under the totality of the circumstances, and the trial court correctly denied both suppression motions. Although there were several instances of prosecutorial

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21 misconduct, none were flagrant or rendered the proceedings fundamentally unfair. Accordingly, Gonterman’s convictions and sentence stand. All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and Thompson, JJ., concur. Nickell, J., concurs in result only. COUNSEL FOR APPELLANT: Jared Travis Bewley Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General Ryan Douglas Mosley Assistant Attorney General

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