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RENDERED : AUGUST 26, AS MODIFIED : NOVEMBER 18, AS MODIFIED : JANUARY 25, B U

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2002-SC-1092-MR GARY WAYNE DAVIS APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DENISE CLAYTON, JUDGE 00-CR-2734 4

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COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE COOPER AFFIRMING James Edwin Cox was shot and killed at approximately 6:30 p .m . on November 13, 1998, while standing in front of his residence on Thomas Grove Road in Jefferson County, Kentucky. Immediately prior to the murder, Cox was talking to his brother on his cellular telephone . During that conversation, Cox told his brother that a vehicle was driving slowly up and down his street, and that he was going to see what the driver wanted .' Cox then terminated the telephone call . Shortly thereafter, Cox was found dead with seven gunshot wounds to the head, back, and buttocks . At the time of his murder, Christina Levy, ex-wife of Appellant, Gary Wayne Davis, was residing with Cox. Levy was in North Carolina when the murder occurred . At trial, Appellant argued that this evidence presented by Cox's brother should have been excluded as hearsay. The trial court admitted it under the present sense impression exception to the hearsay rule. KRE 803(1) . Appellant does not pursue the issue on appeal.

A Jefferson Circuit Court jury subsequently convicted Appellant of murdering Cox, KRS 507.020, and of tampering with physical evidence, KRS 524.100, by attempting to dispose of Cox's body. The trial court sentenced Appellant to concurrent prison terms of fifty years for murder and five years for tampering with physical evidence . He appeals to this Court as a matter of right, Ky. Const.

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