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RENDERED: JUNE 17, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0728-MR

JAMES T. HINMAN, II APPELLANT 

V. 

ON APPEAL FROM CHRISTIAN CIRCUIT COURT

HONORABLE ANDREW SELF, JUDGE

NO. 17-CR-00355 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

On retrial, a Christian County jury found Appellant James T. Hinman, II, 

guilty of three counts of first-degree rape, one count involving serious physical 

injury to the victim. The trial court sentenced Hinman to life in prison. He

brings four claims of error on appeal. He claims the trial court improperly 

allowed a nurse to testify to a doctor’s notes; the trial court erred by not 

granting a directed verdict on the third rape charge; palpable error occurred 

when testimony prohibited by Kentucky Revised Statute (KRS) 532.055(2)(a) 

was entered into evidence; and palpable error occurred when a probation 

officer did not fully inform the jury about probation eligibility in relation to the 

sex offender treatment program (SOTP) requirements. Upon review, we affirm 

the Christian Circuit Court’s judgment.
2

FACTUAL AND PROCEDURAL BACKGROUND

This is Hinman’s second appeal to this Court. After a prior reversal, he 

was found guilty again for his actions in March 2013. The underlying facts of 

his case, presented in our 2016 opinion (Hinman I), follow.

Appellant and his wife, Lily,1 married in the fall of 2012. 

Almost immediately, the relationship began to deteriorate. 

According to Lily’s trial testimony, Appellant became angry on 

March 12, 2013 after she rejected his sexual advances. He warned 

Lily that he would teach her to never to reject him again and, for 

the next two hours, he repeatedly struck her about the face and 

head with his fists and kicked her legs and torso. At one point, he 

jumped onto her chest with all his weight. He then removed her 

clothing, commented on the battered condition of her body, and 

resumed kicking and hitting her until she passed out. He roused 

her back to consciousness by shaking her and resumed beating 

her.

After the attack, according to Lily’s testimony, Appellant 

demanded her assurance that she would not again reject his 

sexual advances. He then forced Lily to wear a dress belonging to 

her daughter.2 He began fondling her and calling her by her 

daughter’s name as he looked at a photograph of her daughter. He 

then initiated vaginal intercourse to which Lily acceded out of fear 

that she would again be beaten, or even killed.

The next evening, March 13, Appellant told Lily he would not 

physically hurt her again but that he was not finished punishing 

her. He took Lily, dressed only in pajamas, outside in freezing 

 

1 Lily is a pseudonym. Ordinarily, we have used pseudonyms only 

to protect the anonymity of juveniles. Appellant’s wife is not a juvenile but 

in his brief to this Court, he used this pseudonym and the Commonwealth 

continued to do so in its brief. We continue the use of this pseudonym to 

be consistent with the parties’ arguments.

2 Lily’s daughter lived with the daughter’s father. Lily had two sons 

living with her and Appellant.

[During Hinman’s second trial, he testified the blue dress was a costume 

“Cinderella dress” belonging to Lily, not her daughter, and that he was the one who 

wore it during sex. The Commonwealth introduced photographic evidence of Lily’s 

daughter wearing the dress to her biological father’s wedding.]
3

weather where he placed a dog collar around her neck and ordered 

her into the doghouse. He left her there for about an hour before 

he returned, allowing her into the residence only after she agreed 

to his demand to do everything her “master” told her to do.3 When 

back in the house, Appellant forced her to lick his feet and fellate 

him. After that, Appellant forced Lily to commit acts of anal 

sodomy on him, and then he subjected her to vaginal and oral 

intercourse repeatedly through the night.

The next morning, March 14, Lily was unable to walk. She 

was dizzy, sore, and bleeding from her vagina. She testified that 

later that evening, Appellant again made sexual advances and they 

had vaginal intercourse. She testified that she had no desire for 

intercourse, but she did not refuse him because she “wanted to 

stay alive” and escape with her children when she could.

On the morning of March 15, Lily devised a plan to get away 

from the house with her children. After escaping, she reported the 

preceding events to law enforcement authorities and had a CT scan

and a rape examination performed. As a result of the assault, she 

sustained a concussion and severe bruising about her head and 

body. She suffered from headaches, dizziness, and pain for several 

weeks.

Hinman v. Commonwealth, 2014-SC-000474-MR, 2016 WL 1068421, at *1-2 

(Ky. Mar. 17, 2016).

Hinman was found guilty of second-degree assault and first-degree rape, 

serious physical injury, by a Christian County jury in 2014. See id. at *1.4 

The trial court followed the jury’s recommendation and sentenced him to serve 

ten years in prison for the assault and forty years in prison for the rape, the 

sentences to be served concurrently. See id. Hinman successfully appealed 

 

3 Lily testified that she could have escaped when she was left 

outside but she did not do so out of fear for her sons who remained in 

the house with Appellant.

4 Hinman was indicted for first-degree rape, first-degree sodomy, second-degree 

assault, first-degree unlawful imprisonment, and first-degree criminal abuse. The jury 

acquitted him of sodomy, unlawful imprisonment, and criminal abuse. Id. at *2.
4

his rape conviction to this Court where the conviction was reversed because 

Hinman’s right to a unanimous verdict was violated. Id. at *3. Specifically, the 

trial evidence reflected at least three instances during the March 12-15, 2013 

timespan that supported a conviction for first-degree rape, but the jury 

instruction did not direct the jury to consider any of the specific instances of 

alleged rape and it did not provide a verdict form that would clearly indicate 

unanimity based upon the same criminal act. Id. On remand, Hinman was 

indicted on three counts of first-degree rape, one involving serious physical 

injury. After a trial on these charges, the jury returned a guilty verdict on all 

three counts and recommended a sentence of life for first-degree rape, serious 

physical injury, and twenty years for each of the other counts, all to run 

consecutively. The trial court followed the jury’s recommendation except 

Hinman was sentenced to serve the three sentences concurrently for a total of 

life in prison.

The parties agree that the jury heard substantially the same evidence 

discussed in Hinman I. This included testimony from the victim, investigating 

officers, and the nurse who treated Lily at the emergency room. The 

Commonwealth also introduced Lily’s smashed cell phone, Lily’s daughter’s 

dress that Hinman forced Lily to wear while he raped her, photos of Lily’s 

injuries, Lily’s medical records (including testimony on the rape kit that 

evidenced Hinman’s semen), and Hinman’s police interview. The jury heard 

that when Hinman was detained and interviewed by the police, he denied that 

he had beaten or sexually assaulted his wife, claiming her bruises were a result 
5

of her falling out of bed and hitting a nightstand, and that he and his wife had 

wild but consensual sex. During trial, Hinman testified to a series of events 

different from Lily’s testimony and from what Hinman originally told the 

detective. Hinman testified that he was transgender and identified as a 

lesbian. He admitted beating Lily “half to death” but claimed that she verbally 

provoked him. He also testified that he beat Lily March 9-10, not March 12. 

He denied raping Lily on the evening of March 14 but claimed he and Lily had 

consensual sex on the evening of March 12 and the evening of March 13 only.

On appeal Hinman claims the trial court erred by 1) improperly allowing

a nurse to testify to a doctor’s notes; 2) not granting a directed verdict on the 

third rape charge; 3) allowing the Commonwealth to introduce improper 

criminal history evidence during the penalty phase; and 4) allowing the 

Commonwealth to introduce misinformation about the SOTP during the 

penalty phase.

ANALYSIS

I. The Trial Court Did Not Err by Allowing a Nurse to Read the

 Emergency Room Doctor’s Clinical Impression Notes

The registered nurse who assisted in Lily’s care with the emergency room

doctor on March 15, 2013 testified for the Commonwealth. The nurse agreed 

that she was present in the emergency room when Lily was brought in to be 

examined and evaluated for her injuries—sexual assault, physical injuries.
6

Defense counsel did not object to this testimony but objected when the nurse

was asked to read parts of the doctor’s notes. The trial court allowed the

testimony. The jury heard that the doctor noted Lily had bruising 

of the face, back, right arm, left arm, right hip, right lower leg, and left lower 

leg and in terms of the doctor’s clinical impressions, he listed closed head 

injury, concussion, multiple contusions, and alleged physical and sexual 

assault.5

Hinman claims his right to confront the witness was violated and 

because he was unable to confront the doctor directly about his clinical 

impression, the doctor’s notes unfairly vouched for Lily’s testimony regarding

her injuries. Hinman complains that the nurse’s reading of the doctor’s notes 

was prejudicial because the doctor’s clinical impression notation of “alleged 

physical and sexual assault” is the same as the doctor testifying he believed the 

victim was telling the truth, the type of testimony Hoff v. Commonwealth, 394 

S.W.3d 368, 376 (Ky. 2011), proscribes as improper bolstering.

Hinman cites Little v. Commonwealth, 422 S.W.3d 238, 245-46 (Ky. 

2013), and the authority it relies upon to argue the doctor’s clinical impression, 

particularly the statement of “alleged physical and sexual assault” was 

testimonial and he should have been allowed to confront the doctor. Like 

Whittle v. Commonwealth, 352 S.W.3d 898 (Ky. 2011) (forensic lab report found 

to be testimonial), Little particularly relies upon Melendez-Diaz v. 

 

5 The nurse’s notes entered into evidence contained similar information. As the 

presenting complaint, the nurse’s notes read in part, “Patient . . . reports repeated 

physical and sexual ass[a]ult [for] 3 days.”
7

Massachusetts, 557 U.S. 305 (2009) (finding affidavits reporting the results of 

forensic analysis of seized material were testimonial and noting, id. at 312, n.2, 

medical reports created for treatment purposes, would not be testimonial under 

its decision), and Bullcoming v. New Mexico, 564 U.S. 647 (2011) (finding blood 

alcohol concentration report testimonial and noting State did not claim that the 

report was necessary to provide medical treatment). These post-Crawford v. 

Washington, 541 U.S. 36 (2004), decisions distinguish between testimonial 

medical records and records intended for medical treatment. However, unlike 

Whittle, Little concluded the hospital lab report at issue was not testimonial. 

422 S.W.3d at 246. Little explains, if the primary purpose of the medical 

record at issue was not to establish or prove a fact or serve as a “substitute for 

trial testimony,” the admissibility of the content of the medical record is 

governed by the Kentucky Rules of Evidence (KRE), and not by the 

Confrontation Clause. Id.

Lily went to the hospital for treatment of her injuries where an 

assessment of her injuries allegedly resulting from physical and sexual assault 

was necessary. The form used, the “Emergency Physician Record,” contains 

the kind of information relevant to an emergency physician treating a patient 

with the complaint of sexual and physical assault, including information about 

the complaint, symptoms, past medical history, and the physical exam. The 
8

doctor’s “Clinical Impression” is the last major section of that Emergency 

Physician Record.6

Because Hinman admitted assaulting Lily, the question before this Court 

is whether the emergency room doctor’s clinical impression statement, “alleged 

sexual assault,” was testimonial. To assess whether the Confrontation Clause 

was violated, we must determine whether the content of the doctor’s clinical 

impression arose from the doctor’s primary purpose of promoting treatment or 

for proving a fact necessary for Hinman’s conviction, i.e., that Hinman sexually 

assaulted Lily. “In making the primary purpose determination, standard rules 

of hearsay . . . will be relevant.” Michigan v. Bryant, 562 U.S. 344, 358-59 

(2011). As applied to medical treatment, KRE 803(4) explains that 

“[s]tatements made for purposes of medical treatment or diagnosis and 

describing medical history, or past or present symptoms, pain, or sensations, 

or the inception or general character of the cause or external source thereof 

insofar as reasonably pertinent to treatment or diagnosis” may ordinarily be 

admitted at trial despite their hearsay status.

This Court has previously recognized that a doctor’s testimony and 

report containing the rape victim’s assertion that she had been vaginally raped 

repeatedly over eight years was admissible under KRE 803(4) because it was 

reasonably pertinent to diagnosis and treatment, describing the cause or 

 

6 The “Physician Documentation,” also a part of the medical records, contained 

a disposition summary with “Impression: Closed Head Injury, Concussion, Multiple 

Contusions, Alleged Adult Physical Abuse, Alleged Adult Sexual Abuse.”
9

external source of her injury. Hoff, 394 S.W.3d at 372. As in Hoff, it is fair to 

say that a statement about alleged recent physical and sexual assault was 

relevant to the injuries reported and that is the type of statement a doctor may 

rely on when treating or diagnosing a patient. Although Hinman claims that 

the doctor’s notes were testimonial, he has not shed light on how the doctor’s 

clinical impression, using the term “alleged” and reflecting Lily’s assertion that 

she was sexually assaulted, had a primary purpose of use at trial rather than 

diagnosis and treatment. We conclude Hinman’s Sixth Amendment right was 

not violated.

Nevertheless, even if the nurse’s reading of the doctor’s notes was

somehow error under the Confrontation Clause, it was harmless error under 

Kentucky Rule of Criminal Procedure (RCr) 9.24 and the constitutional 

“harmless beyond a reasonable doubt” standard. Under the constitutional 

standard, we judge whether the “error [is] unimportant in relation to everything 

else the jury considered on the issue in question, as revealed in the record.” 

Yates v. Evatt, 500 U.S. 391, 403 (1991). When doing so, we consider such 

factors as “the importance of the witness’ testimony in the prosecution’s case, 

whether the testimony was cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on material points, 

the extent of cross-examination otherwise permitted, and, of course, the overall 

strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 

684 (1986) (citations omitted).
10

The doctor’s notes from Lily’s medical records were certified and properly 

admitted into evidence prior to the nurse’s testimony, with no objection from 

Hinman. He does not now challenge the admission of the notes. Reading of 

the notes was cumulative to the medical records already entered in evidence. 

The nurse testified to her own observation of Lily’s bruising. Hinman did not 

cross-examine the nurse about the doctor’s or her notes reporting Lily’s 

allegations of physical and sexual assault. He cross-examined the nurse about 

the pelvic examination notes for which “no trauma seen” was documented for 

the vulva, introitus, vagina, and cervix. He elicited from the nurse that “no 

trauma seen” was the doctor’s note. Hinman also elicited that according to the 

medical records Lily had a CT scan of her head on March 15 and March 20, 

2013, and the results of both scans were normal.

Other proof included numerous photographs, Hinman’s admission that

he had beaten Lily prior to the occurrence of the sexual encounters, Lily’s 

testimony, the investigating detectives’ testimony, and the March 15 rape kit 

evidencing Hinman’s semen. Consequently, if the nurse’s reading of the 

doctor’s notes was error, it was an “error unimportant in relation to everything 

else the jury considered on the issue” of Hinman physically and sexually 

assaulting Lily. Yates, 500 U.S. at 403.

Hinman further argues that the doctor’s notes improperly bolstered both 

Lily’s testimony and the nurse’s testimony, which he claims also vouched for 

Lily’s testimony that she was sexually assaulted. “The rule against bolstering 

or vouching addresses attempts by one witness to express belief in the 
11

credence of another witness.” Ruiz v. Commonwealth, 471 S.W.3d 675, 683 

(Ky. 2015). 

As noted above, Hoff, a child sexual abuse case, recognized that in order 

to make a proper diagnosis, a doctor is required to consider the facts as given 

in the history along with any physical evidence. 394 S.W.3d at 375-76. 

However, in Hoff, the doctor’s statement included language supportive of 

believing the victim and the doctor also included the statement that he could 

say with reasonable medical probability that the victim’s description of what 

happened to her was the true cause of her injuries. Id. at 376. Unlike in Hoff, 

the doctor’s or the nurse’s notes here that Lily suffered an alleged physical and 

sexual assault does not indicate that the doctor or the nurse believed Lily’s 

allegations. Instead, use of the terms “alleged” and descriptions of what the 

“patient reports,” simply suggests that Lily made the claim she was assaulted, 

not that the assault had been confirmed or proven and that the doctor believed 

Lily’s stated reason for coming to the emergency room. Under these 

circumstances we cannot find improper bolstering.

II. The Trial Court Did Not Err by Denying a Directed Verdict

 on the “Serious Physical Injury” Allegation

The indictment charged that Hinman raped Lily on or about March 12, 

on or about March 13, and on or about March 14, 2013. At the close of the 

Commonwealth’s case, Hinman moved for a directed verdict on the first rape 

charge. He argued that the timeline failed to establish he raped Lily on March 

12 since she testified that the rape occurred during the early hours of March 
12

13.7 The trial court denied the motion, finding the Commonwealth presented 

evidence of three distinct instances of alleged rape, the dates being established 

by the testimony. Hinman again moved for a directed verdict at the close of 

evidence but this time he argued the evidence did not support the jury finding 

that he physically assaulted Lily on March 12, 13, or 14 because he testified to 

beating Lily days before then. The trial court denied the motion. Hinman now 

claims the trial court erred by not granting a directed verdict on the third 

charge, that being a rape on or about March 14, 2013. He argues that Lily’s 

trial testimony did not present evidence that she had vaginal intercourse on the 

evening of March 14.

Recently, Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020), clarified the 

procedure for preserving for appeal an alleged directed verdict issue. A 

defendant must: 

(1) move for a directed verdict at the close of the Commonwealth’s 

evidence; (2) renew the same directed verdict motion at the close of 

all the evidence, unless the defendant does not present any 

evidence; and identify the particular charge the Commonwealth 

failed to prove, and must identify the particular elements of that 

charge the Commonwealth failed to prove. Criminal defendants 

may move for directed verdict on one count of a multiple count 

indictment without rendering the alleged error unpreserved; 

defendants are not required to move for directed verdict on any 

lesser included offenses to a particular charge in order to preserve 

the issue; and, nor are they required to object to instructing the 

 

7 Defense counsel explained this argument to be premised upon Hinman I’s 

discussion of the evidence presenting at least three instances in the March 12-15 time 

frame that would support a conviction for first-degree rape.

The jury was instructed on first-degree rape, serious physical injury, as to the 

intercourse Lily testified to in the early morning hours of March 13; first-degree rape 

as to the intercourse Lily testified to in the early morning hours of March 14; and firstdegree rape as to the intercourse Lily testified to in the nighttime hours of March 14.
13

jury on that particular charge to preserve the alleged directed 

verdict error.

Id. at 266.

Hinman’s motion for a directed verdict at the close of all the evidence 

differed from his motion at the close of the Commonwealth’s case. He did not 

renew his initial motion but provided different grounds for a directed verdict, 

indeed grounds different from that which he now argues. Although Hinman

cites preservation of his argument for appellate review based upon the two 

directed verdict motions decided by the trial court, those two motions were 

decided on different grounds. Only those particular issues considered by the 

trial court can be considered properly preserved. Id. at 265; see Kentucky Rule 

of Civil Procedure 50.01 (“A motion for a directed verdict shall state the specific 

grounds therefor.”).

Here, Hinman preserved for review whether the evidence was sufficient to 

prove Lilly suffered “serious physical harm.” This particular element 

determines the felony class upon conviction. If a defendant is convicted for 

first-degree rape, serious physical injury, the otherwise Class B felony of firstdegree rape becomes a Class A felony. KRS 510.040(2).

When reviewing a motion for a directed verdict,

the trial court must draw all fair and reasonable inferences from 

the evidence in favor of the Commonwealth. If the evidence is 

sufficient to induce a reasonable juror to believe beyond a 

reasonable doubt that the defendant is guilty, a directed verdict 

should not be given. For the purpose of ruling on the motion, the 

trial court must assume that the evidence for the Commonwealth 

is true, but reserving to the jury questions as to the credibility and 

weight to be given to such testimony.
14

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

Although Hinman argues that the evidence was not sufficient to prove 

Lily suffered a serious physical injury on March 12, 13, or 14, Lily’s testimony 

of the events beginning the evening of March 12 and ending early morning on

March 13 was sufficient evidence to support the jury finding that he committed

first-degree rape, serious physical injury. The trial court did not err by denying 

the motion for a directed verdict.8

III. Admission of the Deputy Clerk’s Penalty Phase Testimony

 Which Included Testimony Prohibited by KRS 532.055(2)(a)

 Does Not Warrant Palpable Error Relief

During the penalty phase, the Commonwealth introduced the testimony 

of a Christian Circuit Court deputy clerk, who read Hinman’s prior criminal 

history. The history included a reference to two unnamed charges that had 

been dismissed in a Caldwell County misdemeanor marijuana trafficking case; 

a Calloway County charge of criminal trespassing that was merged with his 

misdemeanor conviction for harassing communications; and a conviction in 

McCracken County for contempt of court which stemmed from charges of 

failure to yield the right-of-way and failure to wear seatbelts. Hinman points 

out that the Commonwealth misinformed the jury as to the seatbelt charge as 

 

8 Citing Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky. 1978) (overruled 

by Ray), the Commonwealth addressed Hinman’s third-rape-charge directed verdict 

argument. The Commonwealth points to Lily’s testimony describing the timeline of the 

three rapes. Even though this directed verdict argument was not properly preserved, 

we conclude the evidence on the third rape charge was sufficient to survive a directed 

verdict motion.
15

the charge was dismissed. He argues that the admission of this evidence 

constituted palpable error.

“Kentucky’s Truth-in-Sentencing statute is geared toward providing the 

jury with information relevant to arriving at an appropriate sentence for the 

particular offender.” Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 

1991). KRS 532.055(2)(a) provides that the Commonwealth’s evidence at 

sentencing may include the “minimum parole eligibility, prior convictions of the 

defendant, both felony and misdemeanor” and the “nature of prior offenses for 

which he was convicted.” “Nothing in KRS 532.055(2)(a) permits a jury to hear 

evidence during the penalty phase of prior charges that have been amended–it 

is only permitted to hear evidence of ‘the nature of the prior offenses for which 

[the defendant] was convicted.’” Blane v. Commonwealth, 364 S.W.3d 140, 152 

(Ky. 2012) (abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 

814 (Ky. 2015)). “[I]t is also well settled that the Commonwealth cannot 

introduce evidence of charges that have been dismissed or set aside.” Id.

(quoting Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004)).

Under RCr 10.26, if an error is found to be palpable and if that 

unpreserved error affects the substantial rights of the defendant, the appellate 

court may grant appropriate relief if manifest injustice has resulted from the 

error. An error is palpable when it is “easily perceptible, plain, obvious and 

readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). 

The error must be “so manifest, fundamental and unambiguous that it 
16

threatens the integrity of the judicial process.” Martin v. Commonwealth, 207 

S.W.3d 1, 5 (Ky. 2006).

Hinman cites Stansbury v. Commonwealth, 454 S.W.3d 293, 304 (Ky. 

2015), to support his argument that the improper introduction of his dismissed 

and amended charges is palpable error. In Stansbury, the defendant was 

convicted of attempted murder, arson in the first-degree, and for being a 

second-degree persistent felony offender. Id. at 297. The Commonwealth 

admitted during the sentencing phase exhibits on three convictions. Id. at 303. 

Two of the exhibits contained victims’ names. Id. The third exhibit contained a 

page showing Stansbury was charged with three counts of wanton 

endangerment in the first degree, which were all dismissed as part of a plea 

agreement. Id. Because Stansbury’s only prior convictions consisted of two 

counts of third-degree burglary and third-degree criminal mischief and one 

count each of third-degree assault and third-degree arson, this Court could not 

say that introduction of the dismissed wanton endangerment charge, which 

was filed in conjunction with the assault and arson charges, did not have an 

impact. Id. at 305. The Court concluded likewise as to the introduction of the 

identities of local victims with whom the jurors might have had a connection. 

Id. We do not find Stansbury comparable to the instant case.

Here, the Commonwealth properly introduced evidence of six prior 

convictions, none of which included victim identity. The convictions were 

second-degree assault in Christian County; trafficking in marijuana in 

Calloway County; harassing communications in Calloway County; fourth-
17

degree assault, child abuse, in Graves County; second-degree burglary in 

McCracken County; and contempt in McCracken County. In the face of the 

current convictions and these prior convictions, the admission of dismissed 

and merged charges which did not implicate violence–two of which were 

unidentified charges, one was criminal trespassing, and one was a traffic 

regulation violation–could have had little sway on the jury.

Furthermore, Hinman testified on his own behalf. While testifying that 

he had already been convicted for the assault of Lily, was remorseful, and was 

benefitting from programs while incarcerated, he opened the door for the 

Commonwealth’s impeachment of his statement that he had “never 

experienced a situation where [he] lost complete control in violence like that 

before.” Hinman denied that he had ever been accused of domestic violence 

against his ex-wives. The Commonwealth introduced a copy of the emergency 

protective order against him as a result of domestic violence toward an ex-wife 

and reminded him that he had been convicted of assaulting a child. Lily also 

provided a victim impact statement. Although information regarding crimes for 

which Hinman was not convicted should not have been introduced into 

evidence, we cannot conclude that this was palpable and so manifest that it 

threatened the integrity of the judicial process. We cannot say that “there is a 

‘substantial possibility’ that the result in the [penalty phase] would have been 

different without the error.” Brewer, 206 S.W.3d at 349.
18

IV. The Parole Officer’s Testimony Describing Hinman’s

 Parole Eligibility Was Not Palpable Error

A probation and parole officer testified during the penalty phase. She 

testified as to the minimum and maximum possible sentences Hinman could 

receive, and his 85% parole eligibility. A bench conference was held after the 

officer explained that Hinman would be eligible for meritorious good-time credit 

and if accumulated, with the lowest possible sentence of twenty years, he could 

be eligible for parole after fifteen or sixteen years. The trial court instructed the 

parties to clarify that while Hinman could receive good-time credit, he could 

never reduce his sentence below seventeen years. The officer testified to that 

effect on cross-examination. The officer further testified that Hinman would be 

required to complete a SOTP.

KRS 197.045(4) states: 

Any eligible sexual offender, as defined in KRS 197.410, who has 

not successfully completed the sex offender treatment program as 

determined by the program director shall not be entitled to the 

benefit of any credit on his or her sentence. A sexual offender who 

does not complete the sex offender treatment program for any 

reason shall serve his or her entire sentence without benefit of 

sentencing credit, parole, or other form of early release.

Hinman complains that the officer misinformed the jury because testimony was 

not elicited explaining that if he failed to complete the SOTP, he would not be 

entitled to any credit on his sentence. He argues that the incomplete 

information violated his due process rights to have misleading evidence kept 

out of his penalty trial. Hinman seeks palpable error review on this final claim 

of error.
19

Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005), is a case in 

which the probation and parole officer provided incorrect information regarding 

parole eligibility during the sentencing phase. The prosecutor repeated the 

incorrect information during closing argument. Id. Concluding that palpable 

error occurred, the Court reversed the defendant’s sentence, stating:

The use of incorrect, or false, testimony by the prosecution is a 

violation of due process when the testimony is material. Napue v. 

Illinois, 360 U.S. 264, 269, 272, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 

(1959). This is true irrespective of the good faith or bad faith of the 

prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 

1196-1197, 10 L. Ed. 2d 215 (1963). When the prosecution knows 

or should have known that the testimony is false, the test for 

materiality is whether “there is any reasonable likelihood that the 

false testimony could have affected the judgment of the jury.” 

United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 

L. Ed. 2d 342 (1976).

Id.

We fail to see how Hinman’s due process rights were violated by the 

parole officer’s testimony regarding the SOTP. As noted previously, KRS 

532.055(2)(a) provides that the Commonwealth’s evidence during the penalty 

phase may include the minimum parole eligibility. The Commonwealth 

presented that evidence. As described above, the parole officer’s incorrect 

parole eligibility testimony was corrected so the jury heard that based on the 

lowest sentencing option of twenty years, Hinman would not be eligible for 

parole until he served seventeen years in prison. The minimum parole 

eligibility, as defined by statute, is not changed by a defendant’s refusal to 

engage in programs from which he earns the benefit of sentence credit. Or 

stated another way, parole eligibility testimony provides the jury with 
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knowledge of the minimal amount of time a defendant may serve, not a 

guarantee that a defendant will take advantage of earning sentence credit to 

reduce the sentence. Here, the fact that a sex offender must complete a SOTP 

in order to be released after serving only 85% of his sentence was not material 

to the jury’s sentencing decision.

CONCLUSION

For the foregoing reasons, the Christian Circuit Court’s judgment is 

affirmed.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky 

Lauren Rachel Lewis

Assistant Attorney General
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