RENDERED: FEBRUARY 4, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0935-MR

JETH NELSON APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE WILLIAM A. KITCHEN, III, JUDGE

ACTION NO. 15-CR-00464

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

COMBS, JUDGE: Appellant, Jeth Nelson (Nelson), appeals from an order of the 

McCracken Circuit Court denying the motion for relief that he filed pursuant to 

RCr1 11.42.

In 2016, a jury found Nelson guilty of first-degree rape. The 

underlying facts were set forth in considerable detail in this Court’s decision 

1 Kentucky Rules of Criminal Procedure.
-2-

affirming on direct appeal, Nelson v. Commonwealth, 2016-CA-001920-MR, 2018 

WL 4050746 (Ky. App. Aug. 24, 2018).

 We have reviewed that Opinion and need not repeat the graphic details 

set forth in its factual scenario, but we briefly summarize the relevant facts as 

pertinent to this Opinion.

 In October of 2014, N.R., the victim of the alleged rape, came from 

California to Paducah, Kentucky, to visit a friend, Honey Hastings. N.R. was 

separated at that time from her husband in California. During the course of her 

visit, she engaged in consensual sexual relations with several other men prior to the 

rape of which Nelson was convicted.

 Nelson initially denied having sexual relations with N.R. during the 

course of two separate interviews by the police. However, DNA testing confirmed 

the presence of Nelson’s DNA. Our previous Opinion summarized Nelson’s 

reaction to that news as follows:

The detective interviewed Nelson via telephone in 

June 2015 after DNA testing revealed Nelson’s DNA 

was present on N.R.’s vaginal swab. Nelson again 

denied having sex with N.R. Detective Frommeyer then 

asked Nelson if there was a reason why his DNA would 

have come back on the test. Nelson said, “no.” The 

detective asked his question again, and Nelson said, 

“Right, I, so, my DNA did come back on her?” “Yeah,” 

answered Detective Frommeyer. The detective then 

asked if the sex was consensual. Nelson said he would 

call right back. He never did.
-3-

On October 9, 2015, the McCracken County grand 

jury returned an indictment charging Nelson with firstdegree rape and first-degree sodomy -- oral sex. A twoday trial commenced on September 6, 2016. The 

defense theory was that the sexual activity was 

consensual.

(Emphasis added.) 

 During his trial, Nelson took the stand and testified. He continued to 

deny the sodomy charge as to oral sex, but he now admitted the sexual encounter 

with N.R. -- contending that it was consensual. However, a detailed report by an 

experienced sexual assault nurse examiner (SANE) revealed seven injuries 

consistent with rape that were observed and documented in the course of her 

examination of N.R. in the emergency room.

 After hearing all of the testimony and other evidence, the jury 

convicted Nelson of first-degree rape but acquitted him of the sodomy charge.

On October 23, 2019, Nelson, pro se, filed a motion for relief 

pursuant to RCr 11.42, alleging that he was denied effective assistance of counsel. 

By an order entered on January 8, 2020, the McCracken Circuit Court denied 

Nelson’s motion. The court determined that appointment of counsel and an 

evidentiary hearing were not required because the record conclusively resolved 

Nelson’s claims. In its order denying CR 11.42 relief, the trial court carefully 

reviewed Nelson’s contentions of error in light of the pertinent law. After 
-4-

analyzing Nelson’s contentions, the court weighed each of them against the 

evidence and concluded as follows:

There is a strong presumption that counsel’s 

conduct falls within a wide range of reasonable, 

professional assistance. Commonwealth v. Ferguson, 

581 S.W.3d 1,6 (Ky. 2019). A reviewing court must 

focus on the totality of the evidence before the judge or 

jury and assess the overall performance of counsel 

throughout the case in order to determine whether the 

identified acts or [o]missions overcome the presumption 

that counsel rendered reasonable professional assistance.

Id. (internal citations omitted).

Viewing the performance of Nelson’s counsel as a 

whole, Nelson received reasonable professional 

assistance. His attorney made appropriate objections, 

asked appropriate, pertinent questions, and presented a 

proper defense.

. . . .

While certainly not perfect, Nelson’s counsel rendered 

reasonable, professional assistance to Nelson, and Nelson 

is not entitled to relief under RCr 11.42.

Nelson then appealed the court’s denial of his RCr 11.42 motion.

In Brewster v. Commonwealth, 723 S.W.2d 863, 864-65 (Ky. App. 

1986), this Court explained:

Strickland[2]recites the mandates of the Sixth 

Amendment to the United States Constitution of the right 

of effective assistance of counsel for all defendants. The 

underlying question to be answered is whether trial 

2

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
-5-

counsel’s conduct has so undermined the proper 

functioning of the adversarial process that the trial cannot 

be relied on as having produced a just result. The 

Kentucky Supreme Court has adopted Strickland in Gall

v. Commonwealth, Ky., 702 S.W.2d 37 (1985).

An appellant who asserts an ineffectiveness claim 

must prove to the satisfaction of the trial court that the 

performance of the trial counsel was deficient and, then, 

that that deficiency resulted in actual prejudice so as to 

deprive the appellant of a fair trial. If trial counsel’s 

performance was determined to be deficient, but it 

appears the end result would have been the same, the 

appellant is not entitled to relief under RCr 11.42.

Prejudice is defined in Strickland as proof by the 

defendant that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the results of the 

proceeding would have been different.

The trial court is permitted to examine the question 

of prejudice before it determines whether there have been 

errors in counsel’s performance. In making its decision 

on actual prejudice, the trial court obviously may and 

should consider the totality of the evidence presented to 

the trier of fact. If this may be accomplished from a 

review of the record the defendant is not entitled to an 

evidentiary hearing.

Where, as here, a trial court does not conduct an evidentiary hearing 

in an RCr 11.42 matter, our record focuses solely on whether the grounds alleged 

are conclusively refuted by the record. If so, no evidentiary is required. Haley v.

Commonwealth, 586 S.W.3d 744, 750 (Ky. App. 2019) (citing Lewis v.

Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). Additionally, Haley provides 

that:
-6-

[w]here the record is clear that an ineffective assistance 

of counsel claim would ultimately fail the prejudice 

prong of Strickland, regardless of the outcome of a 

hearing on the deficiency prong, the trial court should be 

affirmed even in the absence of such a hearing.

Id. at 751.

Nelson first argues that his “trial attorney was ineffective when he 

failed to conduct a pretrial investigation regarding the medical evidence, failed to 

obtain a defense expert witness, and failed to call Dr. Jeremy Klope as witness.” 

Specifically, he observes that Dr. Klope advised trial counsel that consensual 

sexual intercourse can cause vaginal abrasions and that there is no way to 

differentiate vaginal abrasions or bruises for a period of 15-50 hours. Nelson 

argues that his trial counsel should have called Dr. Klope or another physician as 

an expert to rebut the testimony of the SANE. Nelson contends that “[t]he jury 

would have held Dr. Klope’s opinion higher than the SANE because he is a 

physician, and the SANE’s supervisor. Alternatively, trial counsel could have 

obtained another medical expert, to testify to the same thing.” Nelson asserts that 

he suffered prejudice as a result of trial counsel’s failure to call Dr. Klope because 

that there is a reasonable probability that the outcome of the proceedings would 

have been different if the jury could have reasonably inferred that N.R.’s vaginal 

bruising was caused by consensual sex -- either with N.R. or previously with a 

different partner. 
-7-

We do not agree. It is axiomatic that “a trial counsel’s choice of 

whether to call witnesses is generally accorded a presumption of deliberate trial 

strategy and cannot be subject to second-guessing in a claim of ineffective 

assistance of counsel.” Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 

2012). Absent more than merely conclusory allegations, we are compelled to defer 

to the presumption of deliberate choice of trial strategy.

However, even if we were to accept Nelson’s argument that his trial 

attorney was ineffective in failing to call Dr. Klope (or another physician) as an 

expert witness, Nelson has failed to demonstrate prejudice as required by

Strickland -- i.e., “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 

U.S. at 694, 104 S. Ct. at 2068. As Nelson acknowledges in his brief, this was a 

classic case of “he said/she said” which boiled down to witness credibility. N.R. 

testified that Nelson forced her into having sex, and the jury believed her. See 

Mash v. Commonwealth, 376 S.W.3d 548, 558 (Ky. 2012) (internal quotation 

marks and citations omitted) (“[T]his Court has repeatedly held that [even] the 

unsupported testimony of a victim of a sex crime, if the testimony is not 

contradictory or incredible, or inherently improbable, is sufficient to sustain a 

conviction.”). 
-8-

Nelson next argues that his trial attorney was ineffective in failing to 

call N.R.’s husband as a witness to testify about the fact that he made the 911 call 

and that N.R. had taken medication for anxiety. Nelson believes that trial counsel 

had the means to impeach N.R. and that he failed to do so. Once again, we must 

presume that this decision, too, was a product of sound trial strategy.

Nelson’s third and final argument on appeal is that his trial attorney 

was ineffective by failing to object to the Commonwealth’s allegedly improper 

opening statement concerning oral sex: “If he put his penis in her mouth, why 

didn’t she just bite the thing off. I think the best explanation is going to be, if she 

was thinking, she was afraid that if she bit it off, he was going to kill her.” We 

agree with the trial court’s analysis. “It is unquestionably the rule in Kentucky that 

counsel has wide latitude while making opening or closing statements.” Brewer v.

Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006). It is also noteworthy that this 

issue is moot due to the fact that the jury acquitted him of sodomy. 

We find no error in the order of the trial court denying RCr 11.42 

relief. Therefore, we affirm.

ALL CONCUR.
-9-

BRIEF FOR APPELLANT:

J. Ryan Chailland

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron, Attorney General

Frankfort, Kentucky 

Perry T. Ryan, Assistant Attorney 

General

Frankfort, Kentucky