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RENDERED: APRIL 27, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0495-MR

JOSHUA TURNER APPELLANT

V. ON APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN LAPE, JUDGE

NO. 20-CR-01275

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This case comes before the Court on appeal as a matter of right1 by 

Joshua Turner, the Appellant, from the judgment and sentence of the Kenton

Circuit Court. Turner was convicted by a jury of first-degree rape (victim under 

twelve); two counts of first-degree sodomy (victim under twelve); and three 

counts of incest. He was sentenced to life in prison. He now appeals for two 

alleged errors. First, the trial court failed to give lesser-included offense 

instructions for sexual abuse in the first degree under the two greater offenses 

of first-degree sodomy. Second, that the prosecutor committed misconduct in 

his closing argument. For the following reasons, we affirm. 

1 Ky. Const. § 110(2)(b).
2

I. Facts

Rachel Irwin was the longtime girlfriend of Turner, and the couple had 

two children together, one of whom is A.T.,2 one of Turner’s victims. Turner 

had another daughter, B.H., by another woman and who did not live with the 

family but visited regularly. She was his second victim. B.H. was eleven years 

old at the time of the abuse and A.T. was eight years old. In September of 2020, 

Turner began to sell the belongings of his two children by Irwin. Irwin wanted 

to see if she could identify the buyers and get those possessions back, so she 

took an opportunity to look through Turner’s phone while he was asleep. It was 

then she discovered videos on the phone that showed Turner engaging in 

sexual acts with A.T. and B.H. Turner was identifiable due to distinguishing 

tattoos on his hands. A.T. and B.H. were identifiable due to underwear Irwin 

knew to be theirs from doing the laundry. A.T. was also identifiable due to her 

bedsheets. 

Irwin took the phone to the Park Hills Police Department. A search 

warrant was executed on Turner’s home and the underwear and bedsheets in 

the videos were gathered into evidence. Detective Nick Klaiss was assigned to 

the case and testified to finding photographs and videos on Turner’s phone 

depicting his abuse. One video of A.T. depicts Turner thrusting his penis in 

between her buttocks. Another video of B.H. depicts the same conduct. Again, 

the underwear the girls were wearing are what made the victims identifiable,

2 We use initials to protect the identity of the victims. 
3

and Turner’s tattoos made him identifiable. These two videos predicated the 

counts of first-degree sodomy. 

After the close of evidence, Turner submitted three lesser-included 

instructions of first-degree sexual abuse: two for the counts of sodomy and one 

for the count of rape. The Commonwealth conceded the lesser-included 

instruction was justified for the count of rape, but it opposed the instructions 

for the counts of sodomy. Turner first argued that the videos did not show 

penetration, which his counsel believed was a necessary element. Informed 

penetration was not a necessary element of sodomy, trial counsel then argued 

for the lesser-included instructions on the basis of the presence, or lack 

thereof, of sexual gratification, arguing it was an issue for the jury. The 

Commonwealth argued that the lesser-included instructions were not merited 

by the evidence and the trial court agreed. The trial court concluded, “The 

videos speak to themselves. To the sodomies, there’s no facts that support the 

lesser-included [offenses].”

Finally, Turner alleges during closing arguments for the penalty phase of 

the trial the Commonwealth stated to the jury, “It’s no secret that victims of 

sexual abuse look forward to a life of mental health issues, substance abuse 

[and] depression.” Turner concedes he did not object to this statement at trial 

therefore it is unpreserved. He now argues, however, that neither victims 

testified to their mental state nor did an expert testify as to mental issues 

involving sexual abuse victims; thus, the statement had no evidentiary basis 
4

nor was it a reasonable inference from the evidence and therefore palpable 

error.

II. Analysis

A. Lesser-included Instructions not Justified

“An instruction on a lesser included offense is required only if, 

considering the totality of the evidence, the jury might have a reasonable doubt 

as to the defendant's guilt of the greater offense, and yet believe beyond a 

reasonable doubt that he is guilty of the lesser offense.” Mash v. 

Commonwealth, 376 S.W.3d 548, 559 (Ky. 2012) (quoting Miller v. 

Commonwealth, 283 S.W.3d 690, 699 (Ky. 2009)). We review for an abuse of 

discretion in the failing to give a requested jury instruction. Thus, we will not 

disturb the ruling unless it is arbitrary, unfair, or not based on sound legal 

principles. In the civil context—though equally applicable in the criminal law as 

well—we have admonished that

Appellate courts must be careful to avoid the sort of unfettered 

review of the record and of the trial court's rulings that indicates a 

de novo review. And appellate courts must recognize the 

unfortunate but necessary corollaries of deference to the trial 

court: that it is possible for a trial court to rule contrary to what an 

appellate court would rule without abusing its discretion or being 

clearly erroneous, and that an appellate court is powerless to 

disturb such rulings.

Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004). 

In Mash, we had occasion to discuss the difference between sodomy and 

first-degree sexual abuse, stating

Pursuant to KRS 510.110(1), “[a] person is guilty of sexual abuse 

in the first degree when . . . [h]e or she subjects another person to 
5

sexual contact by forcible compulsion . . . .” KRS 510.110(1). 

Sexual contact is statutorily defined as “any touching of the sexual 

or other intimate parts of a person for the purpose of gratifying the 

sexual desire of either party.” KRS 510.010(7). 

...

First-degree sexual abuse is properly classified as a lesser included 

offense of first-degree sodomy. Johnson v. Commonwealth, 864 

S.W.2d 266, 277 (Ky.1993). The distinction between the two 

offenses is the body part touched for purposes of sexual 

gratification. Sexual abuse requires “sexual contact,” KRS 510.110, 

which means “touching of the sexual or other intimate parts of a 

person,” KRS 510.010(7). Sodomy, on the other hand, requires 

“deviate sexual intercourse,” KRS 510.070, which means “any act 

of sexual gratification involving the sex organs of one (1) person 

and the mouth or anus of another,” KRS 510.010(1). The 

additional element in a sodomy offense is the specific sexual or 

intimate parts involved, namely, the mouth or anus.

376 S.W.3d at 559. Turner ostensibly argues the trial court abused its 

discretion when it refused to give the lesser-included offense instructions of 

sexual abuse in the first degree for the two counts of sodomy because the jury 

could view the video evidence predicating those charges and conclude that 

while his penis touched the buttocks of the victims, it did not touch their 

anuses. Turner’s argument, however, is disingenuous. Elsewhere in his brief he 

states plainly, “It [the videos] does not show Mr. Turner’s penis touching AT’s 

anus, or deviate sexual intercourse under KRS 510.070. Commonwealth’s 

Exhibit 58 shows Mr. Turner’s penis touching BH’s buttocks, which are ‘other 

intimate parts,’ not her anus.” In other words, Turner’s argument establishes 

an all-or-nothing proposition—the videos either demonstrate sodomy, or they 

do not. 
6

Generally, “[w]e permit a trial court to not instruct on lesser-included 

offenses only where the evidence presents an all-or-nothing proposition, 

allowing only a single account of the degree of the offense or demanding an 

acquittal.” Swan v. Commonwealth, 384 S.W.3d 77, 100 (Ky. 2012). See also 

Gordon v. Commonwealth, 214 S.W.3d 921, 924 (Ky. App. 2006). In this 

instance, by Turner’s own reasoning, either the video evidence establishes 

sodomy by showing penile contact with the anuses of his victims or it 

establishes no sodomy by showing no penile contact with the anuses of his 

victims. Because this is an essential element of sodomy, Mash, 376 S.W.3d at 

559, Turner’s argument is an all-or-nothing proposition—he is either guilty of 

sodomy or the Commonwealth has failed to establish a necessary element 

beyond reasonable doubt. Moreover, having reviewed the opening and closing 

arguments of Turner’s defense, he at no point conceded to mere sexual contact 

with his victims as opposed to sodomy. After making a motion for directed 

verdict at the close of the Commonwealth’s evidence, he once again did not 

concede to mere sexual contact with his victims as opposed to sodomy. Finally, 

Turner did not testify in his own defense, nor did he call any witnesses or put 

on any evidence whatsoever. Therefore, the trial court acted properly in 

refusing to give a jury instruction on the lesser-included offenses of first-degree 

sexual abuse. 

Secondly, we note that that we will not consider arguments raised for the 

first time on appeal. Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 

2013). This rule does not merely apply to the general issue at stake, but to the 
7

specific arguments raised for or against that issue. Id. “Error is not preserved if 

the wrong reason is stated for the objection.” Young v. Commonwealth, 50 

S.W.3d 148, 168 (Ky. 2001). And when a new reason in support of an 

argument appears for the first time on appeal, the “Appellant is precluded from 

raising that question . . . because it was not raised or relied upon in the court 

below.” Combs v. Knott County Fiscal Court, 141 S.W.2d 859, 860 (Ky. 1940). 

Turner never argued at trial that the videos in question did not 

demonstrate the crime of sodomy by failing to show penile contact with the 

anus. In his argument for the lesser-included instructions of sexual abuse in 

the first degree, trial counsel first mistakenly argued that sodomy required 

penetration, which it does not. Bills v. Commonwealth, 851 S.W.2d 466, 469 

(Ky. 1993). The trial court properly rejected that argument. Counsel’s next 

argument was that there must be some difference between sodomy and sexual 

abuse, or, in the language of the statutes, between deviate sexual intercourse 

and sexual contact. Turner’s counsel then stated that difference was the 

presence or lack thereof of sexual gratification. The trial court was 

unpersuaded by this argument. As we stated in Mash, “[t]he distinction 

between the two offenses” is not the presence of sexual gratification per se but 

“is the body part touched for purposes of sexual gratification.” 376 S.W.3d at 

559. The trial court properly rejected the second argument as well. Therefore, 

the trial court’s refusal to give the lesser-included offense instructions for 

sexual abuse in the first degree is affirmed. 
8

B. Commonwealth did not Commit Flagrant Misconduct in Penaltyphase Closing Argument 

Next, Turner argues the Commonwealth committed prosecutorial 

misconduct in its closing argument for the penalty phase, wherein counsel 

made a statement that “It’s no secret victims of sexual abuse look forward to 

nothing but a life of mental health issues, substance abuse, [and] depression.” 

This statement was not objected to and will only be reviewed for palpable error, 

as requested and briefed by Turner. RCr3 10.26. “A palpable error must be so 

grave in nature that if it were uncorrected, it would seriously affect the fairness 

of the proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). 

In Hannah v. Commonwealth, we set down the test whereby appellate courts 

must first determine whether the Commonwealth’s statements or actions were

misconduct, and if so, then assess whether the misconduct was flagrant. 306 

S.W.3d 509, 518 (Ky. 2010), superseded on other grounds by statute, KRS 

503.055 and KRS 503.050(4), as recognized in Commonwealth v. Hasch, 421 

S.W.3d 349 (Ky. 2013). To determine whether misconduct is flagrant, we look 

to four factors: “(1) whether the remarks tended to mislead the jury or to 

prejudice the accused; (2) whether they were isolated or extensive; (3) whether 

they were deliberately or accidentally placed before the jury; and (4) the 

strength of the evidence against the accused.” Id. (quoting United States v. 

Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994)). 

3 Kentucky Rules of Criminal Procedure. 
9

In closing arguments, lawyers may make those arguments which are 

either directly supported by the evidentiary record, or reasonably deducible 

from the record. They may not make arguments which have no evidentiary 

foundation or are not reasonably deducible therefrom. Newcomb v. 

Commonwealth, 410 S.W.3d 63, 89 (Ky. 2013). Neither of the victims in this 

case testified and there was no medical testimony about their mental health, 

nor expert testimony regarding the trauma sexual abuse victims can typically 

expect to undergo throughout their lives. The statement of the prosecutor had 

no evidentiary foundation. Child abuse cases are already highly emotional 

affairs as it is, and references to the distraught lives victims potentially have in 

store, without evidentiary basis, can only exacerbate the piteousness natural to 

such cases. For that reason, we hold the statement was misconduct. 

Having made that determination, we must proceed to the Hannah 

factors. As to the third factor, the statement was clearly deliberate and there’s 

no argument it was not. As to the second factor, the comment was neither 

isolated nor extensive. The theme of the Commonwealth’s closing was for the 

jury to do what was fair and just, and this focused on the impact of Turner’s 

crimes upon his children. The Commonwealth argued that Turner had not just

physically harmed the girls but had “robbed” them of the father they should 

have had; robbed them of their virginity and negatively affecting their future 

love life; and then the Commonwealth mentioned the mental health and 

substance abuse issues but did not dwell on them. These two factors weigh in 

favor of Turner. 
10

As to the first factor, however, although without evidentiary foundation 

in this record, generally speaking it is well-known that sexual abuse victims 

tend to suffer a mental trauma as well as a physical trauma, and some struggle 

to overcome it. It is not uncommon they do so by turning to substance abuse.

It is going too far to characterize the statement as misleading, with the 

connotations of maliciousness implied by that word.4 Instead, it was 

pretentious and did presume facts not in evidence, but that does not always 

equate to misleading. Despite this, the prejudicial impact of the statement is

dubious. We emphasize that this statement was made in the penalty phase of 

the trial and not the guilt phase; guilt had already been determined. The jury 

had seen the evidence and the statement by itself could not have inflamed the 

jury with undue passion any more than what the evidence itself elicited. 

This leads us to the fourth factor—the evidence of Turner’s guilt is 

overwhelming. Dozens of videos and photographs were submitted into evidence

and Turner was readily identifiable as the perpetrator by his tattoos. The trial 

judge expressed her own opinion when imposing the sentence, that the 

evidence was among the most disturbing she had ever seen. The third factor is, 

at worst, neutral to both Turner and the Commonwealth, but the fourth factor 

undoubtedly weighs in favor of the Commonwealth. As we said in Brewer, the 

essential question for palpable review is whether “the result in the case would 

have been different without the error.” 206 S.W.3d at 349. And the Hannah

4 Johnson defines mislead as “to guide a wrong way; to betray to mischief or 

mistake.” Samuel Johnson, A Dictionary of the English Language 469 (Barnes & Noble 

Books 1994) (1756).
11

factors are to be balanced with one another—it is not a rote checklist. Because 

of the overwhelming evidence of guilt and its nature, we are confident that the 

sentence imposed by the jury would have been the same even without the 

Commonwealth’s statement therefore, there is no palpable error. 

III. Conclusion

Turner’s argument that lesser-included offense instructions for sexual 

abuse were justified because the video evidence underlying the sodomy charges 

did not show penile contact with the anuses of the victims establishes an allor-nothing proposition, so the trial court correctly declined to give lesserincluded offense instructions for sexual abuse in the first degree. Moreover, the 

specific argument advanced before this Court was not presented to the trial 

court thus, it was not properly preserved for review. The statement of the 

Commonwealth during closing arguments in the penalty phase was misconduct 

because not based in the evidentiary record. But the statement itself was not 

flagrant misconduct and it did not result in a palpable error. The judgment and 

sentence of the Kenton Circuit Court is affirmed. 

All sitting. Conley, Keller, Lambert, Nickell, and Thompson, JJ., concur. 

Bisig, J., concurs in result only by separate opinion in which VanMeter, C.J., 

joins. 

BISIG, J., CONCURRING IN RESULT ONLY: I concur in result only. 

Although I agree with the majority that Turner’s conviction should be affirmed, 

I disagree with the conclusion that the prosecutor committed misconduct in 

closing argument during the penalty phase. While the majority ultimately 
12

determines that the statement did not constitute palpable error, I do not 

believe the statement was improper. 

In reviewing a claim of prosecutorial misconduct during closing 

argument, we must remember that “counsel is granted wide latitude during 

closing argument[,]” and that “‘[i]t is just that—an argument.’” Murphy v. 

Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017) (quotation and citations 

omitted). The majority notes that the prosecutor’s statement had no 

evidentiary foundation, but prosecutors are permitted to “draw all reasonable 

inferences from the evidence.” Tamme v. Commonwealth, 973 S.W.2d 13, 39 

(Ky. 1998). The majority opinion further states that “generally speaking it is 

well-known that sexual abuse victims tend to suffer a mental trauma as well as 

a physical trauma, and some struggle to overcome it. It is not uncommon they 

do so by turning to substance abuse.” These sensible considerations that can 

reasonably be inferred from the evidence lead me to conclude that the 

prosecutor’s reference to mental health issues as a plausible impact of this 

crime was not improper. 

I further emphasize that the prosecutor’s comment occurred during 

closing argument of the penalty phase, which directly followed a two-day trial 

in which the jury was presented with an abundance of unequivocal evidence 

and ultimately found Turner guilty. Therefore, it was not unreasonable for the 

prosecutor to argue that the victims could suffer from the effects of this abuse 

for the rest of their lives.

VanMeter, C.J., joins.
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COUNSEL FOR APPELLANT:

Julia K. Pearson

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General