RENDERED: MAY 28, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1255-MR

MICHAEL B. FOWLER APPELLANT 

v. 

APPEAL FROM BUTLER CIRCUIT COURT

HONORABLE DAN KELLY, SPECIAL JUDGE

ACTION NOS. 15-CR-00011 AND 15-CR-00119 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION AFFIRMING IN PART,

REVERSING IN PART, AND REMANDING

**   **  **

BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.

LAMBERT, JUDGE: Michael B. Fowler appeals from the Butler Circuit Court’s 

denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42 post-conviction 

motion. We agree with Fowler’s claim that his attorney was ineffective for failing 

to object when a physician vouched for the allegations of sexual abuse made by a 

minor, and that claim cannot be resolved without conducting an evidentiary 

hearing, so we reverse the trial court’s summary denial of that claim and remand 
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for an evidentiary hearing as to that claim. We affirm the trial court’s denial of 

the remainder of Fowler’s claims. 

I. Relevant Factual and Procedural History

For consistency’s sake, we quote the relevant underlying history as 

related by the Kentucky Supreme Court in its opinion affirming Fowler’s 

convictions on direct appeal:

Fowler became acquainted with . . . Nicole Waldecker. 

According to Waldecker, the two entered the 

rehabilitation program at about the same time, became 

acquainted, began dating, and by the end of the program 

wanted to move in together. In late August, Waldecker 

moved back into the Morgantown home of her mother

. . . and step-father, the caretakers during her treatment of 

her two children: a daughter, “Betty,”[1] who was born in 

September 2008 and who was thus seven years old at the 

time of trial in March 2016, and a then two-year-old son. 

After the completion of Waldecker’s drug rehabilitation, 

she, Betty, and her son moved into an apartment. Fowler 

lived with Waldecker and her children. . . .

. . . .

Several months into living together, Fowler and 

Waldecker relapsed and began using drugs together. 

Later in January 2015, when Betty asked if she could go 

live with her grandmother, Waldecker believed that Betty 

was upset because of her drug abuse. After Betty went to 

stay with her grandmother in mid-January 2015, 

Waldecker and Fowler had an argument that turned into 

an altercation. Fowler blackened her eyes and bruised 

three of her ribs, injury enough to land her briefly in the 

hospital and Fowler in jail. After Fowler pled guilty to 

 

1

“Betty” is a pseudonym used to help protect the child’s privacy. 
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fourth-degree assault and was released from jail, he 

returned to the home, where he argued with Waldecker 

and with some of her family members, which resulted in 

the issuance of a Domestic Violence Order against him 

barring him from the residence.

Afterwards, Betty returned to live with her mother. 

When Betty came home, Waldecker asked why she had 

gone to her grandmother’s and why she had returned. 

During this conversation, Waldecker learned of Fowler’s 

abuse of Betty and she contacted the authorities. . . . In 

February 2015, the Butler County grand jury charged 

Fowler with ten counts each of first-degree rape, firstdegree sodomy, and first-degree sexual abuse against 

Betty . . . . [The charges proceeded to a March 2016 jury 

trial.] [S]even-year-old Betty testified that during the 

period she, her mother, her baby brother, and Fowler 

lived together in the Morgantown apartment, Fowler 

performed a number of acts of a sexual nature on her and 

had her perform similar acts on him. Although Betty did 

not have an adult vocabulary for what she was 

describing, with the help of some leading questions by 

the prosecutor, Betty stated in effect that Fowler 

subjected her to incidents of vaginal intercourse, vaginal 

touching (Fowler placing his penis on the outside of 

Betty’s vagina), and vaginal/oral sodomy. She also 

testified to occasions when Fowler placed his penis in her 

mouth, occasions when he had her touch his penis with 

her hands, and occasions when he kissed her on the 

mouth.

. . . . 

. . . [T]he jury found Fowler guilty of first-degree rape, 

first-degree sodomy (three counts), and first-degree 

sexual abuse (five counts). The jury returned not guilty 

verdicts with respect to three other instructions asking 

whether it was convinced that Fowler had committed an 

act of anal sodomy in the bathroom and two such acts in 

the mother’s bedroom . . . . As to penalty, the jury 
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recommended a sentence of twenty-five years for firstdegree rape and for each of the three first-degree sodomy 

offenses and terms of seven years for each of the five 

first-degree sexual abuse offenses. Further, the jury 

recommended that the terms run concurrently for a 

maximum term of imprisonment of twenty-five years. 

The trial court sentenced Fowler in conformance with the 

recommendation. 

Fowler v. Commonwealth, No. 2016-SC-000333-MR, 2018 WL 1418275, at *1-3 

(Ky. Mar. 22, 2018) (footnotes and some paragraph breaks omitted). 

Several months after the Kentucky Supreme Court affirmed his 

convictions and sentence, Fowler filed his pro se, handwritten RCr 11.42 motion. 

The trial court denied the motion via an extremely terse order without having first 

conducted an evidentiary hearing. Fowler then filed this appeal.

2

II. Analysis

A. Issues Presented

Fowler’s brief raises three main, somewhat interrelated, claims of 

ineffective assistance of counsel.3 First, he contends counsel was ineffective for 

failing to conduct a pretrial investigation regarding the expert medical evidence. 

Second, he contends counsel was ineffective for failing to object to bolstering 

 

2 Even though Fowler was sentenced to twenty-five years’ imprisonment, we have jurisdiction 

over his RCr 11.42 appeal. Cardine v. Commonwealth, 102 S.W.3d 927 (Ky. 2003).

3 By not raising them here, Fowler has waived or abandoned any other claims in his RCr 11.42 

motion. See, e.g., Hugenberg v. West American Ins. Company/Ohio Cas. Group, 249 S.W.3d 

174, 187-88 (Ky. App. 2006).
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testimony given by the Commonwealth’s medical expert and to the

Commonwealth’s questions to Fowler about some prior misdeeds. Finally, Fowler 

contends counsel should have argued that Betty’s allegations she had been abused 

by another person were admissible under Kentucky Rule of Evidence (KRE) 

412(b)(1)(C).

B. Standards of Review

Since the trial court did not hold an evidentiary hearing “our review is 

limited to determining whether the motion on its face states grounds that are not 

conclusively refuted by the record and which, if true, would invalidate the 

conviction.” Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014) 

(internal quotation marks and citations omitted). A trial court must hold an 

evidentiary hearing on an RCr 11.42 motion “only when there is ‘a material issue 

of fact that cannot be determined on the face of the record.’” Id. at 228 (quoting 

RCr 11.42(5) (other citation omitted)). A court may “summarily” deny “motions 

asserting claims refuted or otherwise resolved by the record.” Commonwealth v. 

Pridham, 394 S.W.3d 867, 874 (Ky. 2012). Also, no hearing is required if “the 

allegations, even if true, would not be sufficient to invalidate [the] convictions.” 

Searight, 423 S.W.3d at 228 (internal quotation marks and citation omitted). 

The United States Supreme Court has emphasized that courts

reviewing claims of ineffective counsel “must indulge a strong presumption that 
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counsel’s conduct falls within the wide range of reasonable professional 

assistance[.]” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 

80 L. Ed. 2d 674 (1984). Fowler must show both that counsel’s performance was 

deficient and the deficiency prejudiced the defense. Searight, 423 S.W.3d at 230

(citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). To show deficient 

performance, Fowler must show “counsel made errors so serious that counsel was 

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, 

Fowler “must overcome the strong presumption counsel’s assistance was 

constitutionally sufficient or ‘might be considered sound trial strategy’” bearing in 

mind that ‘“[s]trategic choices made after a thorough investigation of law and facts 

relevant to plausible options are virtually unchallengeable[.]’” Koteras v. 

Commonwealth, 589 S.W.3d 534, 541 (Ky. App. 2018) (quoting Strickland, 466 

U.S. at 690, 104 S. Ct. at 2066). To show prejudice, Fowler must show the

deficient performance led to a “fundamentally unfair proceeding with an unreliable 

result.” Id. (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052).

C. Counsel’s Failure to Object to Dr. Blackerby’s Vouching 

Testimony Requires an Evidentiary Hearing

Dr. Jeffries Blackerby, who examined Betty, testified that he found no 

physical signs she had been abused. But he nonetheless testified without objection 
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that it was “quite probable that the child’s [Betty’s] story was true and the fact that 

the examination was normal does in no way rule out the fact that this happened.” 

Dr. Blackerby also testified that he had no indication Betty was being told what to 

say. 

Fowler raises two interrelated arguments about counsel’s handling of 

Dr. Blackerby’s testimony. First, he contends counsel was ineffective for not 

obtaining a medical expert to rebut it. Second, he contends counsel was ineffective 

for failing to object to it. 

“It is well-settled that a witness cannot vouch for the truthfulness of 

another witness. In the context of child sex abuse cases, this Court has repeatedly 

held that no expert, including a medical doctor, can vouch for the truth of the 

victim’s out-of-court statements.” Hoff v. Commonwealth, 394 S.W.3d 368, 376 

(Ky. 2011) (citations omitted). Our Supreme Court later reiterated that “physicians 

may give an opinion concerning their patients’ medical diagnosis, but they may not 

give an opinion as to the truthfulness of their patient.” King v. Commonwealth, 

472 S.W.3d 523, 531 (Ky. 2015). Thus, by testifying that it was “quite probable 

that the child’s story was true[,]” Dr. Blackerby impermissibly vouched for the 

veracity of Betty’s allegations. 

We disagree with the Commonwealth’s argument that Dr. Blackerby’s 

testimony stayed within the boundaries imposed by Hoff. In Hoff, when a 
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physician was asked if the injuries to the victim’s hymen were “normal for a child 

her age who had not had sexual intercourse[,]” the doctor first stated the injuries 

could be caused by methods other than sexual abuse before adding:

This is consistent with penetrating vaginal trauma of 

undetermined age, but also consistent with the history the 

child gave me. And I have no reason not to believe this 

child. So the answer is: is it normal for a twelve-yearold child to have this? I don’t believe so. Is it consistent 

with having sex? Yes, it is. Is there any other 

explanation? There might be. But is it consistent with 

the facts as laid out? Yes, it is. Is it within reasonable 

medical probability to say that the most likely answer is 

what has been laid before me? I believe that it is.

Hoff, 394 S.W.3d at 375. Our Supreme Court deemed the doctor’s relating that the 

victim’s injuries were consistent with having sex and the history she had given 

proper but held “language that interjects the issue of ‘believing’ [the victim]” and 

“a statement that he could say with some certainty – reasonable medical 

probability – that what [the victim] said happened to her was the true cause of her 

injuries” was improper. Id. at 376.

Hoff then explains at length what physicians in similar situations may 

and may not provide in their testimony:

Given that the physical evidence was inconclusive, 

Dr. Calhoun could not say, based on that evidence alone, 

that sexual assault had occurred. The most that he could 

legitimately say was that based on her history, whether 

true or not, when coupled with the physical findings 

which were consistent with sexual penetration, there was 

a reasonable probability that sexual assault had occurred. 
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The distinction is that this language does not profess a 

belief in the truth of the victim’s claims, but instead 

leaves that question to the jury. . . . 

Here, the language used by the doctor, “And I have 

no reason not to believe this child,” can create an 

inference that he does believe her, and thus by its 

certainty serves to bolster her testimony. It is not 

appropriate for medical experts to vouch for the truth of a 

victim’s statement, but only to make a diagnosis under 

stated conditions, which does not require a personal 

judgment from the doctor as to whether he believes the 

patient, unless his belief is a necessary part of 

determining what treatment to use. Such is not the case 

here.

. . . .

For these reasons, Dr. Calhoun’s testimony was 

improper. An examining doctor in a child sex abuse case 

may testify that the child’s injuries are consistent with 

sexual abuse, or consistent with the history given by the 

child. A doctor may also make a conditional statement 

that if he accepts the child’s statements as true, the 

child’s physical injuries and history would lead him to 

conclude that she has been sexually abused. But the 

doctor may not testify about the credibility of the child or 

state that he believes her. 

Id. at 376-77. 

According to the Commonwealth, Dr. Blackerby’s testimony here “is 

the exact phrasing” permitted by Hoff – namely, that physicians may testify that 

“there was a reasonable probability that sexual assault had occurred.” Id. at 376. 

But Dr. Blackerby testified that it was “quite probable” that Betty’s “story was 

true[,]” even though there were no physical signs she had been abused. The phrase
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used by Dr. Blackerby, “quite probable,” is not the “exact” phrase, “reasonable 

probability,” permitted by Hoff. Moreover, there were no physical signs of abuse 

here, unlike in Hoff, so Dr. Blackerby could not rely on physical evidence to 

support his conclusion. 

The more troubling testimony, however, is Dr. Blackerby’s opining

that it was “quite probable” that Betty’s “story was true.” Betty’s “story,” of 

course, was that Fowler had repeatedly abused her. It is thus inarguable that Dr. 

Blackerby impermissibly vouched for Betty’s veracity. 

Having determined that Dr. Blackerby impermissibly vouched for 

Betty, we must determine whether Fowler is potentially entitled to RCr 11.42 

relief. Because Betty had no physical signs consistent with sexual trauma, this trial

was a credibility contest between Betty and Fowler. Consequently, Dr. 

Blackerby’s bolstering of Betty’s veracity was highly prejudicial:

Any jury is likely to give a weight to the doctor’s 

testimony in this case that is greater than that of family 

members because of his disinterested position and his 

expert status. This Court has held that the testimony of a 

physician repeating a child victim’s allegations against a 

defendant is extremely prejudicial, as is a physician’s 

testimony vouching for the truth of a child’s out-of-court 

statement. This type of testimony by a respected 

professional gives extra weight to the child victim’s 

testimony and serves to unfairly prejudice the defendant. 

Id. at 378-79 (citations omitted).
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Given the improper, potentially devastating, nature of Dr. Blackerby’s 

vouching, Fowler’s attorney’s failure to object is puzzling. But that puzzlement

highlights why an evidentiary hearing is required: the record does not explain the 

lack of objection. If counsel failed to object for non-strategic reasons (e.g., 

unfamiliarity with Hoff), deficiency is plain. And, under these facts, a finding of 

prejudice would logically follow as it is impossible to conclude that, based on Hoff,

Dr. Blackerby’s vouching – fleeting though it was—did not seriously undercut the 

basic fairness of a trial at which the only real issue for the jury was whether Betty 

or Fowler was telling the truth. 

However, it is possible counsel refrained from objecting for strategic 

reasons. For example, counsel could have believed that objecting would have 

emphasized the vouching. See, e.g., Moore v. Commonwealth, 983 S.W.2d 479, 

485-86 (Ky. 1998) (holding, albeit on distinguishable facts, that counsel acted 

“strategically sound[ly]” by not objecting to improper credibility comments in 

order to avoid emphasizing them, even though counsel was unable to explain the 

lack of objection). Perhaps counsel believed the best strategy was to remain silent 

until cross-examination. In fact, on cross-examination, counsel elicited potentially 

helpful testimony from Dr. Blackerby, such as highlighting the lack of physical 

trauma to Betty and a concession that children sometimes are told to make false 
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accusations of abuse by a parent possessing a hidden agenda. In sum, an 

evidentiary hearing is required to explore why counsel did not object. 

D. No Hearing Required on Fowler’s Failure to Investigate and

Failure to Request a Daubert Hearing Claims

However, we reject Fowler’s somewhat related argument that he is 

entitled to relief due to counsel’s failure to hire a medical expert to counteract Dr. 

Blackerby’s testimony. Counsel is not required to retain an expert in every 

criminal case, and counsel certainly is not expected to retain an expert to 

counteract improper vouching testimony. Fowler has not shown with the requisite 

specificity why an expert was needed or how having an expert would have 

impacted the outcome of the trial (i.e., he has shown neither deficient performance 

nor prejudice). Similarly, Fowler contends counsel should have undertaken 

additional investigations regarding medical evidence but has not shown what 

specific additional investigation counsel reasonably should have undertaken or 

how that additional investigation would have impacted the outcome of the trial. 

See, e.g., Hensley v. Commonwealth, 305 S.W.3d 434, 437 (Ky. App. 2010)

(“Hensley has not demonstrated that more investigation by his attorney would have 

changed the result. Thus, [RCr 11.42] relief was properly denied by the trial 

court.”).

Finally, Fowler has not shown an entitlement to relief based upon his 
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fleeting assertion that counsel was ineffective for failing to request a hearing under 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 

L. Ed. 2d 469 (1993). Fowler has not shown why such a hearing was necessary or 

how the failure to request a hearing impacted the result of the trial. See, e.g., 

Commonwealth v. McGorman, 489 S.W.3d 731, 740 (Ky. 2016) (denying RCr 

11.42 relief because the movant had not “demonstrate[d] that had trial counsel filed 

a pre-trial Daubert motion, the result would have been any different.”).

E. No Hearing Required Regarding the Commonwealth’s 

Questioning Fowler About Having Committed Previous Thefts

Fowler next argues the Commonwealth should not have been 

permitted to inquire about the specific details of his previous criminal convictions, 

and his counsel was ineffective for not objecting. Under these facts, we conclude 

no hearing is necessary. 

On direct examination, Fowler denied having sexually abused Betty. 

On cross-examination, the Commonwealth asked Fowler if he was a convicted 

felon. Fowler admitted he was. The Commonwealth and Fowler then engaged in a 

colloquy about how Fowler’s version of events differed from Betty’s; included in 

Fowler’s responses was a statement that he had no reason to lie and had pled guilty 

to his previous criminal charges. The Commonwealth soon thereafter asked 

Fowler if he stole two vehicles in 2007 in South Carolina. Fowler responded in the 
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affirmative. The Commonwealth then asked Fowler if he admitted he stole from a 

grocery store in South Carolina in 2011. Fowler again responded in the 

affirmative. The Commonwealth then asked Fowler if he admitted he stole from a 

Walmart in South Carolina in 2012. Fowler again admitted he had. Then the 

Commonwealth asked Fowler if the “account” he gave was true, and Fowler 

responded, “About the stealing and stuff, yeah. Everything I’ve said since I’ve 

been up here is the truth.” Fowler’s counsel lodged no objections. 

Notably, though there was a strong inference of criminal prosecution, 

the Commonwealth did not ask about any specific criminal convictions. In fact, it 

is unclear from Fowler’s brief if the South Carolina thefts resulted in criminal 

convictions. KRE 609(a) generally prevents identifying a witness’ prior felony 

convictions unless the witness denies their existence. See also Commonwealth v. 

Armstrong, 556 S.W.3d 595, 600 (Ky. 2018). Consequently, if the South Carolina 

thefts resulted in felony convictions, the questions were arguably improper; if they 

resulted in misdemeanor convictions, or no convictions at all, the questions were 

arguably permissible. See Allen v. Commonwealth, 395 S.W.3d 451, 466-67 (Ky. 

2013).

Even if we leniently assume, for argument’s sake, the questions to 

have been improper, Fowler is not entitled to RCr 11.42 relief because he has not

satisfied the prejudice prong. To show prejudice, Fowler must show “counsel was 
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so thoroughly ineffective that defeat was snatched from the hands of probable 

victory.” Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008) (internal 

quotation marks and citation omitted). Here, none of the misdeeds about which the 

Commonwealth inquired was similar to the sexual offenses for which Fowler was 

on trial, nor did they involve violence. In fact, the exchanges could have served to 

buttress Fowler’s denial of having abused Betty since he forthrightly took 

responsibility for having committed the thefts and having pled guilty to criminal 

charges in the past, while adamantly maintaining he did not abuse Betty. It cannot 

reasonably be determined that the thefts inflamed the jury against Fowler since it 

acquitted him on several charges and recommended a sentence near the statutory 

minimum. In short, even if we accept (for purposes of argument) that the 

questions were improper, we cannot conclude they were so damning that Fowler’s 

counsel’s lack of objection snatched defeat from the jaws of victory.

F. No Hearing Required on Fowler’s Rape Shield Law Claims

On direct appeal, Fowler argued that “the trial court erred by 

preventing him from questioning Betty about an unrelated allegation of prior 

sexual abuse.” Fowler, 2018 WL 1418275, at *5. Oddly, Fowler claimed Betty’s 

other allegations of abuse were admissible to “provide an alternate source for the 

injuries caused by his alleged abuse of Betty.” Id. Our Supreme Court rejected 
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Fowler’s argument for several reasons, including the fact that Betty had no injuries

so Fowler could not have “explain[ed] a non-existent injury.” Id. at *6.

Now, Fowler contends his trial counsel was ineffective for not arguing 

Betty’s other allegations of abuse were admissible under KRE 412(b)(1)(C).

4

Generally, Fowler contends the other allegations of abuse were admissible to show 

 

4 KRE 412, commonly referred to as the rape shield law, provides in relevant part:

(a) Evidence generally inadmissible. The following evidence is not admissible in 

any civil or criminal proceeding involving alleged sexual misconduct except as 

provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in 

other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual 

predisposition.

(b) Exceptions:

(1) In a criminal case, the following evidence is admissible, if 

otherwise admissible under these rules:

(A) evidence of specific instances of sexual 

behavior by the alleged victim offered to prove that 

a person other than the accused was the source of 

semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual 

behavior by the alleged victim with respect to the 

person accused of the sexual misconduct offered by 

the accused to prove consent or by the prosecution; 

and

(C) any other evidence directly pertaining to the 

offense charged.

Fowler’s appellate counsel attempted to raise the KRE 412(b)(1)(C) issue in his direct appeal, 

but our Supreme Court refused to consider it because it had not been raised in the trial court by 

his trial counsel. Fowler, 2018 WL 1418275, at *5 n.7. 
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how Betty learned about the type of sexual acts she accused Fowler of committing. 

Given Betty’s young age, and even though he does not use the phrase, Fowler is 

essentially arguing counsel should have sought to admit evidence of Betty’s other 

allegations to rebut the “sexual innocence inference theory,” under which juries 

conclude the sexual conduct at issue must have occurred because they presume the 

young alleged victim would otherwise lack knowledge of sexual matters. See, e.g.,

Basham v. Commonwealth, 455 S.W.3d 415, 418 n.7 (Ky. 2014). Counsel cannot 

be ineffective for failing to raise an unmeritorious argument, so to determine 

whether Fowler is entitled to an evidentiary hearing we must assess whether this

argument would have been meritorious. 

KRE 412(b)(1)(C) is “a safety valve to allow for unanticipated 

circumstances in which evidence of a victim’s prior sexual conduct would be 

appropriate” which “should be invoked carefully and sparingly, so as not to 

undermine the rule’s objective of protecting against . . . unwarranted attacks on the 

character of the alleged victim.” Montgomery v. Commonwealth, 320 S.W.3d 28, 

40 (Ky. 2010) (internal quotation marks and citations omitted). But the Court 

cautioned in Montgomery that proper KRE 412(b)(1)(C) evidence should “clearly 

establish a similar prior incident, one the details of which could account for some 

particularly striking detail in her accusations[.]” Id. at 43.
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Counsel did not ask Betty about her other allegations of abuse outside 

the presence of the jury, such as by avowal, so we cannot discern with absolute 

certainty their precise nature. But the Commonwealth has consistently asserted 

that the facts underlying Betty’s other allegations are dissimilar to those involving 

Fowler. See Fowler, 2018 WL 1418275, at *5, 7 (noting that “the Commonwealth 

stated that in the other alleged instance of abuse, the perpetrator used Betty’s foot 

to touch his genitals and that he touched her genitals without causing her 

injury. . . . It is obvious that Betty’s prior claim of sexual abuse, which was not 

alleged to involve penetration or injury, and which occurred a year before Fowler’s 

assault, had no connection to the case at bar.”). Consequently, Betty’s other

allegations would likely not clearly establish a similar prior incident which would 

account for the details of Betty’s allegations against Fowler. But see, e.g., Grigsby 

v. Commonwealth, No. 2013-CA-2068-MR, 2015 WL 4718894, at *4 (Ky. App. 

Aug. 7, 2015) (holding, without comparing the similarities in the allegations of 

prior abuse with those at hand, that it was error to exclude evidence of the alleged 

victim’s “prior experience with sexual abuse to show that [the victim] had prior 

knowledge, despite her very young age, of certain aspects of sexual conduct.”). 

In sum, the admissibility of Betty’s prior allegations under KRE 

412(b)(1)(C) is, at best, uncertain. Indeed, it seems unlikely that argument would 

have prevailed, given the general tilt against admissibility under KRE 412 and 
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since our Supreme Court held on direct appeal that the evidence of Betty’s other 

allegations “was at best of slight probative value” but “its likelihood to confuse the 

jury and embarrass the victim unnecessarily was substantial.” Fowler, 2018 WL 

1418275, at *7 n.8. And Fowler could have pursued his theory that Betty’s 

allegations were a fabrication hatched out of anger after his fight with Betty’s 

mother and the cessation of their romantic relationship via his own testimony and 

by examining Betty’s mother. Counsel may not be deemed ineffective in hindsight 

for failing to raise an argument of uncertain viability. In short, Fowler has not 

shown that trial counsel’s failure to raise an argument under KRE 412(b)(1)(C) 

was deficient or that any deficiency was sufficiently prejudicial. 

III. Conclusion

For the foregoing reasons, the decision of the Butler Circuit Court is 

affirmed in part and reversed and remanded in part with directions to conduct an 

evidentiary hearing on Fowler’s claim that his counsel was ineffective for not 

objecting to Dr. Blackerby’s vouching testimony.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

J. Ryan Chailland

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General

Frankfort, Kentucky