RENDERED: DECEMBER 17, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0410-MR

TONYA DALE RAY APPELLANT

APPEAL FROM MCCRACKEN CIRCUIT COURT

v. HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE

ACTION NO. 17-CR-00813

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: Tonya Dale Ray appeals from the McCracken 

Circuit Court’s judgment and sentence on plea of not guilty following a jury trial. 

The jury found Ray guilty of first-degree perjury. Ray claims multiple errors, 

including the trial court’s alleged errors in failing to grant Ray a directed verdict of 
-2-

acquittal, allowing a jury instruction defining the phrase “material false statement,” 

and failing to probate Ray. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 2017, the McCracken Grand Jury indicted Ray on a 

single count of first-degree perjury. The indictment alleged that, on or about 

October 26, 2017, Ray had falsely testified in her official capacity as the county’s 

elected jailer during a trial in McCracken District Court regarding a McCracken 

County Jail policy manual. 

The indictment stemmed from an incident in February of 2017. 

Deputy Jailer Ben Green incorrectly re-classified several protective custody 

inmates in the McCracken County Jail and placed them in with the jail’s general 

population. Once included with the general population, some of the general 

population inmates assaulted sixteen of the protective custody inmates. Because of

this incident, the McCracken Grand Jury indicted Green in May of 2017 with 

sixteen counts of first-degree official misconduct, a Class A misdemeanor. 

Meanwhile, on March 1, 2017, Bill Adams retired as McCracken 

County Jailer, and the county judge-executive appointed Ray to fill the remainder

of Adams’s term. Immediately upon taking office, Ray fired Green from his 

position at the McCracken County Jail. 
-3-

Thereafter, the McCracken District Court scheduled a trial in Green’s 

case for October 26, 2017, and Ray was subpoenaed to be a witness. On the day of 

the trial, and before empaneling a jury, Green’s defense counsel argued that 501 

Kentucky Administrative Regulation (KAR) 3:110, a regulation requiring each jail 

in Kentucky to develop a prisoner classification system and to include such system 

in the facility’s written policy and procedure manual, did not apply to Green 

individually. Rather, Green’s defense counsel argued that it only applied to the 

McCracken County Jail as an entity. Green’s counsel further argued that the 

McCracken County Jail had not adopted such policies and procedures on the date 

of the incident in question. Thus, the defense argued that the indictment was 

fatally flawed. In response, the Commonwealth produced a two-page document 

dealing with the classification of inmates in protective custody and purporting to 

refute Green’s defense counsel’s allegations. 

To clarify this issue before trial, the district court stated that if there 

were no classification policy in the jail’s manual at the time of the incident, Green 

would win the case on a motion for a directed verdict. Consequently, the judge 

decided the easiest solution was to conduct a short pre-trial hearing to determine 

the substance of Ray’s testimony concerning the existence of any classification 

policy in the jail’s policy manual.
-4-

The district court later summarized Ray’s testimony in a subsequent 

order as follows: 

1. Jailer Ray stated that prior to becoming the 

McCracken County Jailer, she had been employed by the 

jail, but that she had not seen a policies and procedures 

manual of any kind.

2. Jailer Ray then authenticated a bound booklet, 

published in October 2010, that she repeatedly referred to 

as “the” policies and procedures manual for the 

McCracken County Jail.

3. The Commonwealth presented Jailer Ray with a 

separate two-page, updated document, marked “V-200 1 

of 1,” provided by Captain Tray English of the 

McCracken County Jail to the Commonwealth prior to 

the indictment. This document provides for separation of 

inmates under 501 KAR 3:110, but curiously this 

document is not in the bound booklet that Jailer Ray 

stated was “the” policies and procedures manual. 

4. When questioned about the existence of a document 

which ostensibly seemed to be separate from “the”

policies and procedures manual, Jailer Ray stated that 

Captain English “probably got it off the internet.”

5. Jailer Ray also stated that the two-page document may 

have been part of an “old” policies and procedures 

manual.

6. Jailer Ray also testified that she may have 

subsequently added the two-page document to “the” 

policies and procedures manual following her 

appointment as Jailer in March of 2017, which 

appointment was after the February 21, 2017, incident 

which led to this indictment.
-5-

7. Although Jailer Ray’s testimony was at times 

somewhat equivocal, Jailer Ray adamantly testified that

the two-page document provided to the Commonwealth 

by Capt. English was not a part of what she authenticated 

as “the” policies and procedures manual for the 

McCracken County Jail.

 

The district court concluded its order by dismissing Green’s charges 

without prejudice, determining that Ray’s testimony, “as the custodian of the 

records of the McCracken County Jail,” was “all but conclusive of the matter.” 

Thus, the district court ruled that, because the policies and procedures manual of 

the McCracken County Jail did not contain provisions regarding the separation of 

prisoners under 501 KAR 3:110, the indictment as issued against Green could not 

stand.

Thereafter, in February of 2018, the special prosecutor on Green’s 

case received a letter from the United States Department of Justice Civil Rights

Division (the “DOJ”) indicating that it had opened an investigation of the incident 

involving Green for possible civil rights violations. However, the DOJ further 

stated that it was willing to close its case if Green reached an acceptable plea deal 

with the Commonwealth. 

Shortly thereafter, on February 9, 2018, Green was re-indicted by the 

McCracken Grand Jury with sixteen counts of first-degree official misconduct 

using the same language as the first indictment. Green ultimately entered an 
-6-

Alford1 plea to sixteen counts of second-degree official misconduct and was 

sentenced to thirty (30) days in jail. The district court conditionally discharged

Green’s sentence for two (2) years. 

The McCracken Grand Jury subsequently issued the indictment 

against Ray. The indictment against Ray alleged that she had committed perjury

during her testimony at the pre-trial hearing in Green’s case. Particularly, Ray was 

charged with making false statements during her testimony in which she stated that 

the two-page document regarding the separation of inmates in protective custody 

was not a part of the policies and procedures manual in effect when the incident 

with Green occurred. 

The McCracken Circuit Court held a trial on January 30, 2020, and 

the jury ultimately found Ray guilty of first-degree perjury. Before the trial’s 

sentencing phase, the Commonwealth offered to recommend a one-year sentence,

which Ray accepted. Consequently, on March 17, 2020, the trial court sentenced 

Ray to one year in prison and declined to probate Ray’s sentence.

We will discuss further facts as they become relevant in this Opinion.

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). 
-7-

ANALYSIS

a. Directed Verdict 

Ray first argues that the trial court erred when it denied her motion for 

a directed verdict. Specifically, Ray argues that, although her testimony

concerning which policies and procedures manual were in effect was incorrect, she 

was mistaken and had not intentionally or deliberately given such false testimony. 

Ray further argues that her testimony was not material to the overall issue of 

whether Green was guilty of official misconduct. The applicable statute is 

Kentucky Revised Statutes (KRS) 523.020(1), which states that a person is guilty 

of first-degree perjury “when he or she makes a material false statement, which he 

or she does not believe . . . [i]n any official proceeding under an oath required or 

authorized by law[.]” (Emphasis added.)

Our review of whether the trial court erred in denying Ray’s motion 

for a directed verdict is whether, “under the evidence as a whole, it would be 

clearly unreasonable for a jury to find guilt[.]” Commonwealth v. Benham, 816 

S.W.2d 186, 187 (Ky. 1991) (citation omitted). For it is “only then the defendant 

is entitled to a directed verdict of acquittal.” Id. (citation omitted).

In this case, the only issues in dispute were whether Ray did not 

believe her testimony at Green’s pre-trial hearing and whether her testimony at 

Green’s pre-trial hearing was material. As to the issue of whether Ray did or did 
-8-

not believe her testimony at Green’s pre-trial hearing, the jury in Ray’s perjury 

trial was presented with evidence that, following the dismissal of Green’s charges, 

Kentucky State Police Detective Cory Hamby investigated the confusion

surrounding the correct version of the policies and procedures manual in effect at 

the applicable time and whether that version included the classification of 

protective custody inmates. To that end, Detective Hamby testified that he 

obtained a full copy of the correct manual dated 2012 and not 2010. He further 

testified that when he interviewed Ray as part of his investigation, he located a 

copy of the 2012 policy manual in her office, which contained the classification 

policy. Moreover, Detective Hamby discovered that Ray had also received an 

email containing a policy manual identical to the 2012 policy manual. 

Alternatively, Ray’s defense counsel presented evidence to the jury 

that, because the jail was in such disarray when Ray took over as jailer, she was 

simply confused over which manual was in effect at the time of the February 2017 

incident. Thus, her testimony at Green’s trial was the result of a mistake, rather 

than deliberately false.

As a result, the jury heard the details of Ray’s actions before her 

testimony at Green’s pre-trial hearing, Ray’s explanations for such actions and 

testimony, as well as the Commonwealth’s evidence that Ray had in her possession

at least two versions of the 2012 manual containing the classification policy. 
-9-

As stated in Benham, “[f]or the purpose of ruling on [a directed 

verdict] 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.” 816 S.W.2d at 187 (citation omitted). 

Consequently, after being presented with the foregoing evidence, and assuming 

that the Commonwealth’s evidence was true, it would have been inappropriate for 

the judge to determine its weight and credibility. Rather, it was for the jury to 

consider the evidence and all reasonable inferences therefrom as to whether Ray

was merely mistaken at Green’s pre-trial hearing or was knowingly making a false 

statement under oath. As a result, the trial court did not err in denying Ray’s 

motion for a directed verdict based on Ray’s arguments that she was mistaken and 

had not intentionally lied.

Ray next argues that the trial court should have granted her motion for 

a directed verdict, as her testimony at Green’s pre-trial hearing was not material. 

A “material false statement” is “any false statement, regardless of its admissibility 

under the rules of evidence[,] which could have affected the outcome of the 

proceeding.” KRS 523.010(1) (emphasis added). The preceding language 

indicates that “[i]t is not necessary that testimony, to be material, must relate to the 

principal issue in a case. It is sufficiently material if it has the potential to 

influence a tribunal or a jury.” Commonwealth v. Thurman, 691 S.W.2d 213, 215 
-10-

(Ky. 1985) (citation omitted) (emphasis added). Moreover, the Kentucky Supreme 

Court has noted that:

[t]he Commentary to KRS 523.020 explains that the 

drafters of the Kentucky Penal Code intended a broad 

construction of “material” . . . the definition of 

materiality (KRS 523.020(1)) specifically includes all 

false statements which could have affected the outcome 

of the proceeding, regardless of the actual effect or 

admissibility of the statement.

Holbrooks v. Commonwealth, 85 S.W.3d 563, 569 (Ky. 2002) (emphasis added). 

Thus, to constitute first-degree perjury, the materiality of an 

individual’s false statements does not depend upon the result of the proceedings in 

which such statements occurred. The fact that the false testimony was not needed 

to achieve the ultimate resolution does not render it immaterial. 

Here, the first indictments issued against Green stated that he had 

“knowingly violated lawfully adopted rules or regulations relating to his office[.]” 

Ray’s testimony went to whether there were “lawfully adopted rules,” i.e. jail 

policies, concerning the classification of protective custody inmates. Further, the 

district court stated in its order that Ray’s testimony was “all but conclusive of the 

matter” when it dismissed the first indictment against Green. The fact that Ray’s 

testimony was ultimately unnecessary to facilitate the Commonwealth’s 

acquisition of an Alford plea from Green does not render Ray’s statements

immaterial under the statutory definition. Thus, we conclude that the trial court 
-11-

correctly denied Ray’s motion for a directed verdict of acquittal after determining 

that Ray made “material” false statements. 

Moreover, we do not believe that “under the evidence as a whole, it 

would be clearly unreasonable” for the jury in this case to find guilt. Benham, 816 

S.W.2d at 187. Looking at the entirety of the foregoing evidence, it would not be 

unreasonable for the jury to conclude that Ray was guilty of all the elements 

contained in KRS 523.020(1).

b. Jury Instructions Defining “Material False Statement”

Ray next argues that the trial court erred when defining the phrase

“material false statement” in the jury instructions. Here, when Ray’s defense 

counsel and the Commonwealth were discussing the jury instructions with the trial 

court after the presentation of the evidence, defense counsel objected to including 

the definition of “material false statement.” Specifically, defense counsel argued 

that “materiality” was a matter of law for the court to determine and not a question 

of fact for the jury under Kentucky case law. Alternatively, the Commonwealth 

argued that materiality was an element of the crime of first-degree perjury under 

KRS 523.020(1). Ultimately, the trial court instructed the jury that “material false 

statement” meant “any false statement which could have affected the outcome of 

the proceeding.”
-12-

We note that KRS 523.010(1)’s definition of “material false 

statement” includes the following language: “[w]hether a falsification is material 

in a given factual situation is a question of law.” In this case, the trial judge made 

such a determination both when denying Ray’s motion for a directed verdict and in 

chambers while discussing the jury instructions. Having made this determination, 

Ray argues that it was an error for the jury instructions to define “material false 

statement.”

However, the Kentucky Supreme Court has stated that “criminal 

convictions must rest upon a jury determination that the defendant is guilty of each 

and every element of the crime with which he [or she] is charged.” Thacker v. 

Commonwealth, 194 S.W.3d 287, 289 (Ky. 2006) (citations omitted). And 

“materiality to the issue is an element of the offense of perjury[.]” Gibson v. 

Commonwealth, 328 S.W.2d 162, 163 (Ky. 1959) (citation omitted). 

Thus, after the trial court determined that Ray’s statements were 

material, it was proper to include in the jury instructions the statutory definition of 

“material false statement” – an essential element of first-degree perjury – to the 

jury and let them apply such definition to the facts of the case. Moreover, the 

Kentucky Supreme Court has held that “[p]lacing a higher burden of proof on the 

Commonwealth than is required by law is an error favorable to the defendant.” 

Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997) (citation omitted). 
-13-

Indeed, “[e]rrors which inure to the benefit of the defendant are not prejudicial.” 

Id. (citations omitted). We affirm as to this issue.

c. Failure to Probate Ray’s Sentence

Ray next argues that the trial court erred by declining to probate Ray’s 

one-year sentence. Ray also claims that the trial court statements about probating 

public officials who commit crimes involving their office violated the law. 

As previously discussed, the trial court sentenced Ray to one year in 

prison and declined to probate her sentence. KRS 533.010(2) sets out a trial 

court’s obligation during a sentencing hearing: 

(2) Before imposition of a sentence of imprisonment, the 

court shall consider probation, probation with an 

alternative sentencing plan, or conditional discharge. 

Unless the defendant is a violent felon as defined in KRS 

439.3401 or a statute prohibits probation, shock 

probation, or conditional discharge, after due 

consideration of the defendant’s risk and needs 

assessment, nature and circumstances of the crime, and 

the history, character, and condition of the defendant, 

probation or conditional discharge shall be granted, 

unless the court is of the opinion that imprisonment is 

necessary for protection of the public because: 

. . . .

(c) A disposition under this chapter will unduly 

depreciate the seriousness of the defendant’s crime.
-14-

The standard for reviewing a trial court’s decision to probate a defendant’s 

sentence is an abuse of discretion. Knox v. Commonwealth, 361 S.W.3d 891, 895 

(Ky. 2012). 

Here, the trial court considered Ray’s risks and needs assessment and 

her history, character, and condition as required by the statute. The trial court 

discussed that Ray’s perjury was not for her benefit and then weighed that fact 

against the nature and circumstances of the crime. Moreover, the court discussed 

that Ray was a public official whom the jury had convicted of a crime involving 

her office. Finally, in denying probation, the trial court quoted the statute, stating 

“probation or conditional discharge would seriously depreciate the seriousness of 

the crime.”

The trial court then stated that this was the case only because the jury 

had convicted Ray of a crime involving her office. The trial court made it clear 

that it did not have a blanket policy against probating public officials. The trial 

court reinforced that a public official convicted of shoplifting, for example, should 

receive the same treatment as anyone else. The trial court also indicated it would 

be open to considering a motion for shock probation due to Ray’s lack of a 

criminal record. Thus, because the trial court followed the requirements of KRS 

533.010(2) and considered all factors for and against probation, we affirm as to this 

issue. 
-15-

d. Cumulative Error

Finally, Ray alleges six errors which she claims constitute cumulative 

error. These errors include statements made by the prosecutor during both his 

opening and closing arguments, statements made by the special prosecutor in 

Green’s case during his testimony, some of the Commonwealth’s questions and 

Detective Hamby’s answers during Detective Hamby’s direct examination, and 

some of the Commonwealth’s questions during its cross-examination of Ray. 

Cumulative error is “the doctrine under which multiple errors, 

although harmless individually, may be deemed reversible if their cumulative 

effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313 

S.W.3d 577, 631 (Ky. 2010). The Kentucky Supreme Court has “found 

cumulative error only where the individual errors were themselves substantial, 

bordering, at least, on the prejudicial.” Id. (citation omitted).

First, Ray asserts that the claim made by the prosecutor during 

opening statements that Ray clapped when she found out that the district court had 

dismissed Green’s charges constituted palpable error because the Commonwealth 

did not introduce evidence of this during its case. To prove a palpable error, Ray 

must show “probability of a different result or error so fundamental as to threaten a 

defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 

S.W.3d 1, 3 (Ky. 2006). 
-16-

In this case, the statement in question was not the only time the jury 

heard that Ray may have been biased in Green’s favor. In her testimony, Ray 

admitted that she had posted on Green’s Facebook profile that she “loved him like 

a little brother.” Given that Ray herself admitted her bias towards Green, we do 

not believe that the prosecutor’s statement affected the trial’s outcome or denied 

Ray her right to due process.

Ray next contends that the special prosecutor’s testimony about the 

materiality of Ray’s testimony was prejudicial. However, in this case, the trial 

court pointed out in response to defense counsel’s objection that, although the 

Commonwealth was barred from asking the witness to draw a legal conclusion as 

to whether Ray’s testimony at Green’s pre-trial hearing was “material,” the witness

could be asked questions that went toward the issue of materiality as an element of 

the crime of first-degree perjury. 

Ray’s third allegation of error is that a mistrial was warranted when 

the Commonwealth elicited prejudicial information from Detective Hamby that 

Ray loved Green like a little brother through leading questions. Following defense 

counsel’s objection to the leading questions and a motion for a mistrial, the trial 

court denied the motion but ruled that the Commonwealth had led the witness “a 

tad” and admonished the jury to disregard the testimony.
-17-

Leading questions should not be used on direct examination unless 

“necessary to develop the witness’ testimony.” Kentucky Rule of Evidence (KRE)

611(c). The Kentucky Supreme Court has indicated that “judgments will not be 

reversed because of leading questions unless the trial judge abused his discretion 

and a shocking miscarriage of justice resulted.” Tamme v. Commonwealth, 973 

S.W.2d 13, 27 (Ky. 1998), as modified on denial of reh’g (Sep. 3, 1998).

We agree with the trial court’s determination that the Commonwealth, 

here, was impermissibly leading its witness. However, we find that this exchange 

caused no prejudice warranting a mistrial. As previously discussed, the jury had 

heard similar facts through Ray’s testimony of her Facebook post stating that she 

“loved him like a brother.” Because Ray herself testified to the same facts, there 

was no “shocking miscarriage of justice” here that would warrant reversal due to 

leading questions. Id.

Ray’s remaining allegations of error as to specific lines of questioning 

by the Commonwealth or witness testimony falls into one of three categories. The 

first category is claims of error regarding statements that ultimately involve 

weighing the credibility of such statements, which is a function of the jury and a 

task we decline to undertake. Miller v. Commonwealth, 283 S.W.3d 690, 697 (Ky. 

2009). 
-18-

The second category is claims of error regarding statements that the 

trial court addressed during the trial, with the trial court either clarifying or 

admonishing the jury to disregard such statements and defense counsel agreeing 

that such admonishments were the appropriate and proper remedy at trial. In such 

a case, “[i]n the absence of a request for further relief, it must be assumed that 

appellant was satisfied with the relief granted, and he cannot now be heard to 

complain.” Baker v. Commonwealth, 973 S.W.2d 54, 56 (Ky. 1998), overruled on 

other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020).

The third category is claims regarding statements from the 

Commonwealth that the trial court properly allowed, such as a statement made 

during the Commonwealth’s closing arguments concerning Ray’s potential bias. 

We agree with the trial court that the Commonwealth had questioned Ray 

concerning the subject during cross-examination, and the Kentucky Supreme Court 

has stated that “[a] prosecutor may comment on . . . evidence” in his or her closing 

arguments. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). Thus, 

we find no cumulative error as to any of the preceding claims of error. 

CONCLUSION

For the foregoing reasons, we affirm the McCracken Circuit Court.

ALL CONCUR.
-19-

BRIEF FOR APPELLANT:

Thomas E. Clay

Beth Lewis Maze

Louisville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General

Frankfort, Kentucky