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RENDERED: APRIL 27, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0186-MR

JOHN HUNTER APPELLANT 

V. 

ON APPEAL FROM PIKE CIRCUIT COURT

HONORABLE EDDY COLEMAN, JUDGE

NO. 20-CR-00350

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

John Hunter was convicted in the Pike Circuit Court of one count of firstdegree rape and one count of incest by forcible compulsion. These convictions 

involved sexual acts against his adult biological daughter, R.A. Hunter was 

sentenced to twenty years in prison consistent with the jury’s recommendation 

and he now appeals as a matter of right. After careful review, we affirm the 

judgment. 

FACTS AND PROCEDURAL HISTORY

In large part, there is little dispute regarding the underlying facts of this 

case. R.A. is the biological daughter of John Hunter. Hunter separated from 

R.A.’s biological mother at the time of her birth. Hunter saw R.A. relatively few 

times throughout her life. His counsel stated in opening he had seen her 

approximately nine times in her life. Similarly, Detective Chase Maynard with 
2

the Kentucky State Police testified that R.A. told him she had only seen her 

father approximately six times in her life. According to R.A., she did not see 

him often; however, he did send her birthday cards which caused her to long 

for a further relationship with her father. 

By all accounts, R.A. reached out to her father in early 2020 to request 

his help with the remodel of her home in Pike County. R.A.’s father was in the 

construction business, and she believed it was a good idea for him to help her 

with the project. Further, she had an idea that perhaps the two of them could 

start a construction business. Hunter agreed to come help with the remodel 

and subsequently stayed in a camper in the backyard of R.A.’s residence. 

On the evening of July 2, 2020, R.A. and Hunter went together in a 

Chevy Blazer to look for a rose bush planted by Hunter’s great-grandmother. 

Hunter drove the vehicle. Hunter told R.A. that they could replant the bush in 

R.A.’s yard. The two of them had gotten into an argument the night before over 

a domain name for their company. The excursion to obtain the rose bush was 

also characterized as a peace mission between father and daughter. 

The record also established on the evening of the assault both had been 

drinking. Hunter was drinking “Twisted Teas” and R.A. also acknowledged 

drinking vodka shots. While looking for the rose bush, both parties state that 

Hunter stopped the truck and said they were stuck. At this point the parties’ 

stories differ. R.A. states when she exited the vehicle, Hunter came up to her 

from behind and grabbed her shorts by the belt loops. He pulled off her pants, 

and R.A. was scared and startled. She pleaded with him to look at her, hoping 
3

it would make him realize what he was doing. R.A. testified that he performed 

oral sex on her as well as penetrated her vagina with his penis. She stated that 

he commented “of course she had the best pussy because he made it.” (VR 

02/07/22; 03:03:49). R.A. was burned by a cigarette on her wrist and between 

her breasts during the incident. Eventually, the assault stopped when R.A.’s 

phone rang with her sister calling. She answered the phone but did not tell her 

sister what was going on at that point because she did not feel safe to do so. 

At that time, the assault stopped. Hunter took R.A. home. She testified 

that he told her she “better wash that thing.” (Id. at 03:08:20). R.A. stated her 

body hurt and she wanted to get her kids out of the house. She further stated 

she wanted to get warm in a hot bath. Later, she took her kids to her 

grandmother’s, and her sister took her to the hospital. R.A. had her sister pull 

over at a McDonald’s where she called the police to report the incident. She 

then went to the emergency room.

At the hospital, a specifically trained sexual assault nurse examiner, 

“SANE,” performed an examination. Nurse Cindy Adkins with the Pikeville 

Medical Center performed the exam and testified at trial. Nurse Adkins had 

been a nurse for sixteen years and had a sexual assault certification. R.A. 

testified the exam was very hard for her. She told a story of medical personnel 

pulling her open and pouring dye on her so photographs could be taken. She 

testified that she was in pain, her back hurt, and she felt like she had rocks 

thrown at her.
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Nurse Adkins detailed the examination of R.A. She took a blood sample, 

a vaginal swab, and a buccal swab to preserve any DNA evidence. The nurse 

also testified she took hair samples. She explained a diagram of the vagina like 

a clock and noted blunt force trauma and tearing to R.A.’s vagina at twelve-oclock and six-o-clock. She further photographed the victim’s injuries. The 

vaginal swab tested positive for semen. The DNA analyzed from the swab was 

consistent with three individuals and both Hunter and R.A.’s DNA were 

present. The testimony did not indicate if the DNA was from saliva or semen. 

Notwithstanding the uncertainty of which type of fluid, the father’s DNA 

appeared on the vaginal swab from his daughter.

Kentucky State Police Trooper Chase Maynard also testified at trial. 

Maynard went to the hospital to interview R.A. after the incident. He also 

collected the rape kit. Trooper Maynard said that R.A. was banged up, upset, 

and scared. He stated he took pictures of her injuries. Trooper Maynard 

testified that R.A. indicated the perpetrator was her father. As a result of his 

investigation, he obtained an arrest warrant for Hunter. During his testimony, 

Trooper Maynard also played an interview he conducted with defendant Hunter 

at the jail. Hunter’s Miranda rights were read to him at the beginning of the 

interview. The jury heard Hunter repeatedly deny the incident. He stated his 

truck had gotten stuck that day on Bear Fork. He acknowledged he was with 

R.A., and they were both drinking. Later in the interview, he stated that R.A. 

was dancing on him. He also testified she said, “spit on it, Daddy, spit on it for 

me.” (Id. at 02:01:25) Hunter stated he suffered from erectile disfunction and 
5

did not believe he could have had his penis go inside her. He also stated he 

could not remember if he took Viagra that day.

Hunter did not testify at trial and the defense did not call witnesses. In 

arguing jury instructions, the defense requested a lesser-included instruction 

of sexual misconduct. The trial court ruled it would give a lesser-included 

instruction of sexual abuse but declined to give an instruction on sexual 

misconduct. After deliberation, the jury found Hunter guilty of first-degree 

rape and incest by forcible compulsion. Defense counsel argued that 

sentencing on both would violate double jeopardy as they arose from the same 

incident. As a result, the Commonwealth dismissed the incest charge. This 

left the first-degree rape conviction on the table for the penalty phase. During 

the penalty, the defense asked for the minimum sentence and the 

Commonwealth did not make an argument. The jury recommended a penalty 

of twenty years in prison on the first-degree rape conviction.

Importantly for this review, on February 10, 2022, two days after trial, 

Hunter’s counsel filed a motion to set aside the verdict and for a new trial. In 

the motion, defense counsel stated the day after trial, counsel for the 

Commonwealth informed defense counsel that Hunter’s statement should have 

been subject to suppression. The record reflects that Hunter was assigned an 

attorney on July 6, 2020. Trooper Maynard’s interview with the defendant was 

July 7, 2020. Despite having counsel at the time, Hunter was alone during the 

interview. Hunter did not make a motion to suppress his statement prior to 
6

the trial. Further, Hunter did not object to the statement when it was 

introduced at trial by the Commonwealth. 

Judge Coleman held a hearing on the motion for a new trial. At the 

hearing, defense counsel argued that the statement influenced her advice to 

her client not to take the stand. Counsel argued the trial would have 

proceeded differently without the statement. The Commonwealth argued that 

there was significant other evidence in the case and the jury’s finding did not 

hinge on defendant’s statement. To wit, the jury also heard testimony from the 

victim and saw photographs of her injuries. The Commonwealth cited the DNA 

results and testimony from witnesses. The trial court overruled defendant’s 

motion for a new trial. Ultimately, the trial court imposed the maximum 

sentence of twenty years on the conviction for first-degree rape. This appeal 

follows.

ANALYSIS

On appeal, Hunter argues two errors. First, the trial court erred by 

denying his motion for a new trial. This is based upon the argument that 

Hunter’s recorded statement should have been suppressed. Second, the trial 

court erred in denying the defense’s requested instruction for sexual 

misconduct. We address each argument in turn.

I. The trial court properly denied Hunter’s motion for a new 

trial.

Hunter first argues that the trial court erred in denying the defense’s 

motion for a new trial because the Commonwealth’s case relied heavily on a

recorded statement that was taken in violation of Hunter’s due process rights. 
7

Counsel argues the contents of the recorded statement should have been 

suppressed because it likely angered the jurors. Rule of Criminal Procedure 

(RCr) 10.02 governs the trial court’s authority to grant a new trial. The rule 

states “[u]pon motion of a defendant, the court may grant a new trial for any 

cause which prevented the defendant from having a fair trial, or if required in 

the interest of justice.” RCr 10.02(1). Defendant’s arguments for a new trial 

fail for the following reasons.

First, Hunter failed to properly raise this issue before or at the time of 

trial. It is undisputed that Hunter did not object to the introduction of the 

recorded statement when it was played during Trooper Maynard’s testimony. 

Further, Hunter neither filed a motion to suppress the statement nor a pretrial 

motion in limine to exclude the introduction of this evidence. Those were the 

proper remedies for excluding the statement. Without knowing either side’s 

strategy, it certainly could have been reasonable for the defense to allow the 

statement to be played because it presented the defendant’s denial of the 

incident to the jury. Hunter further argues that the statement likely angered 

the jurors based upon his statements regarding his daughter and his 

rationalizations that they had not known each other well. Hunter argues he 

was prejudiced by the admission of the statement. For emphasis he points to 

the fact that the jury watched Hunter’s statement again during deliberations. 

While it is impossible for this Court to know whether the jury interpreted the 

statement to characterize Hunter as truthful and misunderstood or pugnacious 
8

and dishonest, it seems fundamentally unfair to allow defense counsel to wait 

and decide after the verdict whether to seek suppression.

RCr 10.06(1) includes “newly discovered evidence” as a potential basis for 

granting a new trial. In fact, the Commonwealth’s brief analyzes defense’s 

motion under a “newly discovered evidence” standard, reasoning this was the 

only clear basis for the motion. The Commonwealth argues it is an error to 

characterize Hunter’s statement as newly discovered evidence. It submits that 

Hunter’s motion should have been accompanied by an affidavit showing he 

exercised sufficient diligence to obtain this evidence prior to trial. Collins v. 

Commonwealth, 951 S.W.2d 569, 576 (Ky. 1997) (citing Wheeler v. 

Commonwealth, 395 S.W.2d 569 (Ky. 1965)). There was no such affidavit or 

explanation. In fact, the record is clear that the interview was on July 7, 2020, 

and that counsel was appointed for Hunter on July 6, 2020. Both the 

Commonwealth and the defense had equal access to the dates relevant to this 

issue. As a result, this is not a situation of a failure to disclose by the 

Commonwealth or where information was hidden from either party. 

In addition, even if this Court were to decide that defendant’s motion 

presents newly discovered evidence, it is well-accepted that a new trial is only 

warranted based upon newly discovered evidence that carries such a 

significance that it would change the outcome or verdict with reasonable 

certainty. Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008). 

Courts have found that new evidence, which is merely cumulative, collateral or 

impeaches a witness is not sufficient to warrant a new trial. Id. If the evidence 
9

would have probably induced a different conclusion by the jury, then the 

interests of justice demand that the defendant is entitled to have the evidence 

placed before the court. Id.

In this case, the statement at issue was a denial of guilt. Furthermore, 

the jury had other significant evidence establishing guilt. The SANE nurse 

testified that Hunter’s DNA was in the vagina of the victim. In addition, there 

were visible physical injuries to the victim’s vagina that were both documented 

and photographed at the hospital. The jury heard testimony from the victim

who described the incidents and the rape in her own words. The jury heard 

from other witnesses who observed the victim soon after the incident. Defense 

counsel has failed to show with reasonable certainty the outcome of the trial 

would have been different but for the admission of the statement.

Hunter countered in his reply brief that it may not be newly discovered 

evidence but, “it seems more reasonable upon fair reading of the defense 

motion that this is a situation of newly uncovered case law, or a new realization 

of the application of case law to existing facts.” Despite this assertion, Hunter 

does not cite any new or changed legal authority he alleges support his 

position. He declines further to provide an analysis or any prior decisions 

applying existing law in a manner consistent with this theory.

This situation is more properly characterized as invited error. Under 

Kentucky law, a party is generally estopped from asserting an invited error on 

appeal. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) (citing 

Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). In Quisenberrry, this 
10

Court looked to the Ninth Circuit and stated that a party’s knowing 

relinquishment of a right is not subject to review. Id. at 38 (citing United States 

v. Perez, 116 F.3d 840 (9th Cir. 1997)). “Invited errors amount to a waiver and 

are not subject to appellate review.” Webster v. Commonwealth, 438 S.W.3d 

321, 324 (Ky. 2014). In Kelly v. Commonwealth, 554 S.W.3d 854, 866 (Ky. 

2018), the Court reiterated this point and noted even a statement made 

violating the defendant’s Miranda rights that was later admitted at trial to be 

an invited error. See Clay v. Commonwealth, 2012-SC-000421-MR, 2014 WL 

4160134, at *3 (Ky. Aug. 21, 2014). 

 Defendant argues despite his failure to object at trial, this Court’s 

reasoning in Keysor v. Commonwealth, 486 S.W.3d 273, 282 (Ky. 2016), 

requires a new trial. In Keysor, as here, the defendant was represented by 

counsel when the police took a statement from him. Id. at 275. The defendant 

made a motion to suppress the statement and entered a plea of guilt reserving 

for appeal the issue of the statement. Id. at 275-76. The Court held once the 

right to counsel has attached by the commencement of formal criminal 

charges, any subsequent waiver of that right during a police in-custody 

interview was ineffective. Id. at 282. However, Keysor is distinguishable 

because the defendant timely made a motion to suppress the statement prior to 

the plea. While Keysor stands for the proposition that Hunter’s waiver of 

counsel after Miranda warnings was not sufficient, it does not address a 

defendant’s failure to raise the issue until after trial.
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Finally, this Court reviews a trial court’s decision regarding a motion for 

a new trial on an abuse of discretion standard. Bedingfield, 260 S.W.3d at 

810. This Court does not find the trial judge’s decision “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Here, Judge 

Coleman held a hearing on a motion for a new trial. He further entered a 

written order with findings denying the motion. In the order entered on April 

13, 2020, the trial judge found the motion lacked merit pursuant to Fortney v. 

Commonwealth, 290 Ky. 659, 162 S.W.2d 193, 195 (1942), which provides that 

a verdict in a criminal case should be set aside only when it is so flagrantly 

against the evidence as to indicate it was reached as a result of passion or 

prejudice on the part of the jury. The trial court found that the jury relied on 

other evidence outside of the statement in reaching their verdict. The trial 

court also noted the defendant denied the rape occurred in the statement. In 

addition, the trial court held that the proper vehicle was a suppression motion 

or an objection at trial. Overall, the trial court’s decision to deny the motion 

was not unreasonable, unfair or unsupported by sound legal principles. We 

find no abuse of discretion.

II. The trial court properly denied defendant’s requested 

instruction of sexual misconduct.

Hunter’s next argument is that the trial court erred in not providing an 

instruction on sexual misconduct as a lesser-included offense of first-degree 

rape. Hunter tendered and argued for both a sexual abuse and sexual 

misconduct instruction, and therefore, this issue is preserved for appeal. 
12

Swan v. Commonwealth, 384 S.W.3d 77, 98 (Ky. 2012). Having determined 

this issue is preserved for review, the Court next must decide if such an 

instruction was warranted. When a trial court errs in either failing to provide a 

requested jury instruction or in providing an unwarranted jury instruction, an 

appellate court should review under an abuse of discretion standard. 

Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). When reviewing an 

allegation of error in an instruction regarding its content, the Court reviews the 

decision de novo. Id. Here Hunter alleges the trial court erred in denying his 

request for an instruction on sexual misconduct and the Court reviews this 

decision under an abuse of discretion standard. Caudill, 540 S.W.3d at 367. 

A defendant has the right to have every issue of fact raised by the 

evidence and material to his defense submitted to the jury on proper 

instructions, including instructing as to lesser-included offenses. Allen v. 

Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011). An instruction regarding a 

lesser-included offense is warranted if under the evidence presented a 

reasonable juror could have a reasonable doubt as to the defendant’s guilt for 

the greater charge but find beyond a reasonable doubt that the defendant is 

guilty of a lesser charge. Id. In this matter, the jury was instructed on firstdegree rape and first-degree sexual abuse as the lesser-included offense. 

Considering the evidence under these instructions, the jury found Hunter 

guilty of first-degree rape. 

Kentucky Revised Statute (KRS) 510.140(1) states “[a] person is guilty of 

sexual misconduct when he engages in sexual intercourse or deviate sexual 
13

intercourse with another person without the latter’s consent.” Hunter argues 

that there is nothing in the plain language of KRS 510.140 that mentions any 

requirement as to the age, relationship, or capacity of the alleged victim.

When considering this argument, at first blush, it appears to carry great 

weight. However, there is significant jurisprudence by this Court holding that 

sexual misconduct is only a lesser-included offense to first-degree rape in 

situations where it is possible, because of the perpetrator’s age, that he or she 

is too young to be guilty of a felony offense. In Cooper v. Commonwealth, 550 

S.W.2d 478, 480 (Ky. 1977), we stated:

KRS 510.140 therefore, as interpreted by the commentary, is 

concerned with cases not specifically covered by other sections of 

Chapter 510, and appellant’s argument that he was convicted in 

violation of the equal protection amendment is without merit. In 

the present case both appellant and the victim were over 21 years 

of age and neither was physically or mentally incapacitated. KRS 

510.140 was simply not applicable and the trial court properly 

refused to instruct the jury on the offense of sexual misconduct.

The Court affirmed this position in Jenkins v. Commonwealth, 496 

S.W.3d 435 (Ky. 2016). The Court again analyzed how to construe KRS 

510.140 with other statutes outlining nonconsensual intercourse. Following 

the same reasoning as Cooper, the Court found defendant’s conviction of firstdegree rape and first-degree sodomy did not warrant sexual misconduct as a 

lesser-included offense. Id. at 450. The Court found that because both the 

defendant Jenkins and the victim were over the pertinent ages at the time of 

the offenses, sexual misconduct had no application to the case. The Court 

further observed that while the plain language of the statute overlapped with 

other statutes outlining rape and sodomy, the commentary to the statute 
14

expressly adopted by the General Assembly indicated that the misdemeanor 

was intended to fill the gaps left in statutory rape and statutory sodomy cases. 

Id. In Jenkins the Court notes that this interpretation of KRS 510.140 has 

been applied a number of times. Id. (citing Deno v. Commonwealth, 177 S.W.3d 

753 (Ky. 2005) and Spencer v. Commonwealth, 554 S.W.2d 355 (Ky. 1977)). 

Hunter requests this Court instead adopt the reasoning of the dissent in 

Jenkins. The dissent notes that the cases supporting this interpretation of the 

sexual misconduct statute have respected stare decisis but strongly criticizes 

the reliance on legislative commentary rather than the plain language of the 

statute. Hunter states that a sexual misconduct instruction is appropriate 

because a reasonable juror based on these facts could have believed that the 

forcible compulsion necessary for a first-degree rape was not present despite 

R.A.’s lack of consent. We disagree.

In this case, Hunter was forty-two years old at the time of the alleged 

assault. There is no dispute that R.A. was an adult at the time of the assault. 

Further, there is no evidence that either was mentally incapacitated at the time 

of the incident. Even assuming the facts in this case merit such an 

interpretation, the case law interpreting these statutes does not support using 

the instruction as argued by defendant. Additionally, the jury had the lesser 

option of sexual abuse first as outlined in KRS 510.110. Both because of 

legislative intent and judicial interpretation, the trial court properly declined to 

include the charge of sexual misconduct.
15

CONCLUSION

For the forgoing reasons, we affirm the judgment and sentence of the 

Pike Circuit Court.

All sitting. Vanmeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, 

JJ., concur. Thompson, J., concurs in result only. 

COUNSEL FOR APPELLANT:

Molly Mattingly

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas Allen Van De Rostyne

Assistant Attorney General