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### - jLo

2019-SC-000165-MR

SAMUEL HUNTER APPELLANT

ON APPEAL FROM MCCRACKEN CIRCUIT COURT

V. HONORABLE TIMOTHY JON KALTENBACH, JUDGE

NO. 16-CR-00411

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Samuel D. Hunter was convicted by a McCracken County jury of rape in

the first degree, victim under twelve years of age, 1 and sentenced to life

imprisonment. He appeals to this Court as a matter of right, Ky. Const. §

1 10(2)(b)

. Hunter raises five allegations of error on appeal, asserting 1) the

trial court should have granted his motion for a directed verdict, 2) two of the

Commonwealth ’ s witnesses improperly bolstered the victim ’ s testimony, 3)

prosecutorial misconduct denied him a fair trial, 4) the trial court improperly

1 Kentucky Revised Statutes (KRS) 510.040, a Class A felony.

1denied him the ability to present an alternate perpetrator defense, and 5)

cumulative error. Following a careful review, we affirm.

In 2016, seven-year-old Stacy 2 lived with her father, stepmother, and

grandmother. After school on Friday, May 27, 2016, Stacy went to stay with

her biological mother for the weekend. Hunter lived in the same trailer as

Stacy ’ s biological mother and the mother ’ s live-in boyfriend. Stacy came home

early from the visit on Saturday. Stacy subsequently began complaining of

itching and burning with urination. Her step-mother examined her and

noticed Stacy ’ s underwear was caked with mucus. Her step-mother collected

the underwear, placed them in a zippered plastic bag, and stored them in the

refrigerator.

On Thursday, June 2, 2016, Stacy went to the Pediatric Group of

Paducah for an office visit where vaginal discharge and a rash were observed,

and her mucus-caked underwear was presented for medical professionals to

see. Lab testing was ordered, and on June 6, 2016, Stacy was diagnosed with

gonorrhea. After Stacy told her pediatrician, Dr. Elizabeth McGregor, someone

had touched her private area and identified the perpetrator as Hunter, the

doctor contacted social services who in turn sought police intervention. Topical

creams were applied, and an injection of antibiotics was administered to treat

Stacy ’ s infection.

2 Stacy is a pseudonym used in place of the victim ’ s actual name to protect her

privacy.

2McCracken County Sheriffs Detective Sarah Martin spoke with Stacy,

her father, and stepmother on June 6, 2016. Two days later, Stacy underwent

a forensic interview at the Purchase Area Sexual Assault and Child Advocacy

Center ( “ PASAC ” ). Stacy informed the interviewer what happened, where it

happened, and who hurt her, claiming Hunter had hurt her “ pee spot. ” Stacy

was interviewed a second time at PASAC a couple of months later and provided

the same information to the interviewer, including the name of her abuser as

being Hunter. Testing on Stacy ’ s underwear revealed the presence of DNA from

a source other than Stacy, but an insufficient quantity existed to make any

match. Presumptive human blood and saliva were also found during testing

but again, no match could be made.

Detective Martin interviewed numerous individuals during her

investigation. When questioned, Hunter denied any sexual contact with Stacy

but admitted he saw the girl on the night the rape occurred. He speculated a

former girlfriend was trying to frame him. Hunter consented to undergo a rape

test kit. He subsequently tested positive for gonorrhea. Hunter was arrested

and indicted for raping Stacy.

A three-day

jury trial was convened on December 18, 2018. Evidence

presented included the facts previously stated, albeit in significantly greater

detail. Additional, conflicting evidence was likewise adduced. Pertinent to this

appeal, Stacy ’ s pediatrician and the forensic interviewer were permitted to

testify Stacy spoke to them about the assault and provided them the name of

the assailant; the trial court did not permit either witness to specify the

3individual Stacy identified. Hunter presented an alternative perpetrator

defense, asserting a friend of the step-mother or a co-worker of the father had

committed the rape; he was prohibited from introducing copies of the uniform

citation of a charge against one of the men or certified copies of the criminal

conviction of either man. Hunter ’ s motions for directed verdict, wherein he

asserted the Commonwealth had presented insufficient evidence of penetration,

were denied. The jury returned a guilty verdict and recommended a sentence

of life imprisonment. This appeal followed.

Hunter asserts five errors exist warranting reversal of his conviction and

sentence. He first contends the trial court should have granted his motion for

a directed verdict. Next, Hunter asserts Dr. McGregor and the PASAC

interviewer were improperly permitted to bolster Stacy ’ s testimony. Third,

Hunter argues the prosecutor repeatedly made improper comments and

engaged in a pattern of misconduct sufficient to deny him a fair trial. Fourth,

he contends the trial court ’ s refusal to permit him to introduce certain

documents related to alternate perpetrators improperly denied him the ability

to present a complete defense. Finally, Hunter presents a cumulative error

claim. Conceding his second and third arguments are unpreserved for

appellate review, Hunter requests palpable error review under RCr 3 10.26. A

palpable error occurs if a defendant ’ s substantial rights were affected and a

manifest injustice occurred. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.

3 Kentucky Rules of Criminal Procedure.

42006). Only if an error is “ shocking or jurisprudentially intolerable, ” id. at 4,

will it be deemed palpable. Justice Cunningham, in his concurring opinion in

Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011), once described the

threshold for palpable error: “ It should be so egregious that it jumps off the

page

. . . and cries out for relief. ”

For his first allegation of error, Hunter contends the trial court

improperly denied his motions for a directed verdict of acquittal because the

prosecution ’ s timeline does not fit with the incubation period of gonorrhea.

However, as noted by the Commonwealth, this argument was not presented to

the trial court for consideration. Rather, Hunter ’ s motions for directed verdict

below challenged only the sufficiency of the Commonwealth ’ s proof regarding

penetration. Although testimony was elicited during trial regarding the

incubation period of gonorrhea being two to seven days, absolutely no mention

of such timeline was made during any of the three times Hunter made and

renewed his motions for directed verdict.

It is axiomatic “ [o]ur jurisprudence will not permit an appellant to feed

one kettle of fish to the trial judge and another to the appellate court. ” Owens

v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (citing Elery v.

Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citing Kennedy v.

Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976)). “ It goes without saying that

errors to be considered for appellate review must be precisely preserved and

identified in the lower court. ” Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App.

1990) (citation omitted). Contrary to Hunter ’ s assertion, his argument is not

5the type of “ more focused and specific version ” of an argument permitted in

Buster v. Commonwealth, 364 S.W.3d 157, 162 (Ky. 2012), it is a completely

new and separate theory of error. Acknowledging the probability the error is,

in fact, unpreserved for appellate review, in his reply brief Hunter requested

palpable error review. The record clearly reveals this is the only review

available to Hunter on this issue.

In ruling on a motion for directed verdict, the trial court takes as true all

evidence favoring the Commonwealth and all reasonable inferences which can

be drawn from such evidence. It is not at liberty to determine the weight or

credibility to be given to the evidence, that function being reserved for the jury.

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

trial court ’ s decision, we are tasked with determining whether, “ if under the

evidence as a whole, it would be clearly unreasonable for a jury to find guilt,

only then the defendant is entitled to a directed verdict of acquittal. ” Lamb v.

Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017). Convictions must be based

on more than a mere “ scintilla of evidence, ” Benham, 816 S.W.2d at 187-88, as

“ there must be evidence of substance. ” Commonwealth v. Sawhill, 660 S.W.2d

3, 5 (Ky. 1983).

The trial court utilized the appropriate standard in ruling on Hunter ’ s

motions for directed verdict and analyzed the evidence in the light most

favorable to the Commonwealth. Hunter and Stacy were present in the same

mobile home on the weekend of May 27, 2016; Stacy ’ s mother ’ s live-in

boyfriend testified he was awakened on the night of May 27 by a child ’ s scream

6and her mother told him the next day someone had “ touched ” Stacy; Stacy and

Hunter both tested positive for gonorrhea, a disease which testimony revealed

can only be transmitted by secretions during sexual contact; and Stacy named

Hunter as her assailant who “ hurt her pee spot. ” Based on these facts alone, a

reasonable juror could conclude Hunter was guilty of the rape. Clearly, other

evidence was introduced indicative of guilt and other evidence regarding

Hunter ’ s innocence. However, substantial evidence of guilt existed and we

cannot say such a finding would have been clearly unreasonable. Thus, we

discern no error in the trial court ’ s ruling. There being no error, clearly there

can be no palpable error.

Next, Hunter requests palpable error review of what he contends was

improper bolstering of Stacy ’ s testimony by Dr. McGregor and the PASAC

interviewer. He argues each of these witnesses was permitted to give hearsay

testimony by recounting details of their interviews with Stacy. In support of

his position, Hunter relies on Alford and Hoff v. Commonwealth, 394 S.W.3d

368, 379 (Ky. 2011), cases in which this Court found palpable error in sexual

abuse cases where witnesses were permitted to recount the victim ’ s version of

events and identity of the abuser. Again, as noted by the Commonwealth,

these elements were not present in the instant case.

Stacy testified Hunter was her rapist. That identification was later called

into question and the jury was aware Hunter was presenting an alternative

perpetrator defense. Subsequently, Dr. McGregor and the PASAC interviewer

testified Stacy told them who her attacker was. Neither was permitted or

7attempted to name Hunter as the assailant Stacy identified. In Edmonds v.

Commonwealth, 433 S.W.3d 309 (Ky. 2014), this Court concluded permitting

medical professionals to testify to a hearsay statement naming a defendant as a

perpetrator is highly prejudicial and inappropriate. However, we went on to

hold repetition of statements which do not directly identify the defendant as

having committed the charged offense are not improper, specifically referring to

the rule laid down in Alford.

“ Rulings upon admissibility of evidence are within the discretion of the

trial judge; such rulings should not be reversed on appeal in the absence of a

clear abuse of discretion. ” Simpson v. Commonwealth, 889 S.W.2d 781, 783

(Ky. 1994). The complained of testimony was properly admitted under

Edmonds. The mere fact the juiy could infer Stacy named Hunter as her rapist

is insufficient to require reversal. No manifest injustice occurred and therefore,

there was no palpable error in permitting the testimony.

Third, Hunter contends the prosecutor engaged in several instances of

misconduct

in questioning Dr. McGregor and the PASAC interviewer and in

making comments on the evidence in closing statements, resulting in the

denial of a fair trial. As with his previous assertion, this allegation of error is

unpreserved and Hunter requests palpable error review.

Prosecutorial misconduct is “ a prosecutor ’ s improper or illegal act

involving an attempt to persuade the jury to wrongly convict a

defendant or assess an unjustified punishment. ” Noakes v.

Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (alterations omitted)

(quoting Black ’ s Law Dictionary (9th ed. 2009)). It can take a variety of

forms, including improper questioning and improper closing argument.

Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).

8Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). Where, as here,

no contemporaneous objection is lodged concerning the alleged improper acts,

we will reverse only if the alleged prosecutorial conduct is “ flagrant ” and

renders the trial fundamentally unfair. Id. Flagrant misconduct is judged

utilizing a four-factor test:

“ (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. ”

Mayo [u Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010)] (quoting

Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010)). In

the end, our review must center on the essential fairness of the

trial as a whole, with reversal being justified only if the

prosecutor ’ s misconduct was “ so improper, prejudicial, and

egregious as to have undermined the overall fairness of the

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

2006) (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky.

2004)); see also Slaughter v. Commonwealth, 744 S.W.2d 407, 411

­

12 (Ky. 1987) ( “ The required analysis

. . . must focus on the overall

fairness of the trial, and not the culpability of the prosecutor. ” )

(citing Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d

78 (1982)).

Id.

Hunter asserts the prosecutor improperly questioned Dr. McGregor and

the PASAC interviewer regarding Stacy telling them the name of her rapist and

tied their answers back to Stacy in summation by repeating her testimony she

“ told the doctor everything. ” He further challenges the prosecutor ’ s attempt to

tie the saliva found in Stacy ’ s underwear to Hunter by positing spit could be

used as a lubricant to aid in penetrating a young girl ’ s vagina. Finally, he

asserts it was improper to comment on the incubation period of gonorrhea to

9tie him to the assault based on his contention the timeline for symptoms

arising conclusively excludes him from being the perpetrator. Hunter contends

the prosecutor ’ s improper comments were excessive, deliberately placed before

the jury to prejudice him, and the evidence of his guilt was not overwhelming.

Thus, he urges reversal. We disagree.

“ Issues involving the admission of evidence or testimony, when ruled

upon by the trial court, do not constitute prosecutorial misconduct. ” Stopher v.

Commonwealth, 57 S.W.3d 787, 806 (Ky. 2001). “ Unpreserved claims of error

cannot be resuscitated by labeling them cumulatively as ‘ prosecutorial

misconduct. ” ’ Noahes, 354 S.W.3d at 122 (quoting Young v. Commonwealth,

50 S.W.3d 148, 172 (Ky. 2001)) (bracket omitted). Fundamentally, that is the

gist of Hunter ’ s allegations.

The first and third assertions are “ nothing more than alleged evidentiary

errors, ” id., do not constitute prosecutorial misconduct, and no further review

is required. As to the second assertion, “ opening and closing arguments are

not evidence and prosecutors have a wide latitude during both. ‘ A prosecutor

may comment on tactics, may comment on evidence, and may comment as to

the falsity of the defense position. ’ ” Stopher, 57 S.W.3d at 805-06 (quoting

Slaughter, 744 S.W.2d at 412). The Commonwealth ’ s closing statement

included no misconduct because the challenged comment represented a

legitimate inference drawn from the evidence. The overall fairness of the trial

cannot reasonably be said to have been undermined by the prosecutor ’ s

statement. There was no palpable error.

10Fourth, Hunter argues the trial court denied him the ability to present a

complete alternate perpetrator defense when it disallowed introduction of

several documents. He contends “ the trial court abused its discretion in

preventing defense counsel from introducing evidence that [the alleged

alternate perpetrators] were child molesters. ” We review a trial court ’ s

evidentiary rulings for an abuse of discretion. Woodard v. Commonwealth, 147

S.W.3d 63, 67 (Ky. 2004). An abuse of discretion occurs when the decision is

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

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

Hunter sought to introduce evidence of prior bad acts to prove the

alleged alternate perpetrators acted in conformity therewith. While Hunter

asserts the proposed evidence was proof of “ motive, ” the documents he

attempted to introduce were, in fact, propensity evidence which is strictly

inadmissible under Kentucky Rules of Evidence 404.

Though the bar is set lower for admissibility of reverse-404(b)

evidence, that evidence “ is not automatically admissible. ” Beaty [v.

Commonwealth, 125 S.W.3d 196, 208 (Ky. 2003)]. “ [E]ven when

offered by the defendant, evidence of a person ’ s prior bad act may

be admissible to establish identity only if ‘ the prior uncharged act

is sufficiently similar to the charged act so as to indicate a

reasonable probability that the acts were committed by the same

person. ” McPherson v. Commonwealth, 360 S.W.3d 207, 213 (Ky.

2012) (quoting Commonwealth v. Maddox, 955 S.W.2d 718, 722

(Ky. 1997)).

St. Clair v. Commonwealth, 455 S.W.3d 869, 894 (Ky. 2015).

The similarities of the alleged alternate perpetrators ’ prior acts and the

rape for which Hunter stood trial were superficial at best. One was convicted

11of sodomy of a nineteen-year-old victim while the other was convicted of

viewing a young child ’ s private areas. Both convictions were more than twenty

years old and no evidence of subsequent bad acts was offered. Additionally,

showing these men were on the sex offender registry does not constitute a prior

bad act. Absolutely no evidence was presented showing their prior sexual

wrongdoings were sufficiently similar to the crime charged herein and nothing

indicated a reasonable probability either of these men raped Stacy. Id. The

trial court correctly determined the proffered evidence was inadmissible.

Finally, Hunter asserts the cumulative effect of the alleged errors so

marred the proceedings as to require reversal. However, having discerned

there to be no individual errors, there can be no cumulative error. See Sanborn

v. Commonwealth, 975 S.W.2d 905, 913 (Ky. 1998) (overruled on other grounds

by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).

For the foregoing reasons, the judgment and sentence of the McCracken

Circuit Court is AFFIRMED.

All sitting. All concur. Lambert, J., concurs by separate opinion.

LAMBERT, J., CONCURRING: I concur with the majority but write

separately to further address the directed verdict error issue. As the majority

points out, trial counsel argued that Hunter was entitled to a directed verdict

as to the rape charge as there had been no testimony by the victim or other

witnesses as to penetration. 4 However, appellate counsel chose to argue that

4 The jury was also instructed as to First Degree Sexual Abuse.

12the defendant was entitled to a directed verdict based on the incubation period

for gonorrhea. Having reviewed the testimony thoroughly and finding no

evidence of penetration, it is my belief that a much better argument was

abandoned to assert an argument that case law prevents us from even

considering.

COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

James Patrick Judge

Assistant Attorney General

13