RENDERED: MAY 28, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0484-MR

MARIO DEVON FREDRICK APPELLANT 

v. 

APPEAL FROM CHRISTIAN CIRCUIT COURT

HONORABLE ANDREW SELF, JUDGE

ACTION NOS. 18-CR-00691 AND 19-CR-00383 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.

COMBS, JUDGE: Appellant, Mario Fredrick,1appeals as a matter of right from a 

judgment of the Christian Circuit Court which was entered on a jury verdict 

convicting him of indecent exposure, first degree, and of being a persistent felony 

offender (PFO), first degree. On appeal, Fredrick seeks palpable error review 

 

1 The spelling “Frederick” also appears in the record. For purposes of this opinion, we use

“Fredrick,” the spelling that appeared in the notice of appeal.
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under RCr2 10.26, arguing that: (1) his sentence was enhanced twice in violation 

of KRS3 532.080(10); (2) even if the PFO enhancement stands, he is not a PFO,

first degree; (3) the evidence presented during the penalty phase violated KRS 

532.055; (4) the Commonwealth presented irrelevant evidence of uncharged bad 

acts; and (5) the Commonwealth committed prosecutorial misconduct.

On October 13, 2017, a 911 caller reported that a man wearing light 

clothing and driving a white or silver car was exposing his penis at a Pilot gas 

station in Christian County, Kentucky. By the time the police arrived, the man was 

gone. He was not identified.

Several hours later, another 911 caller reported that a man in a lightcolored vehicle was exposing his penis at a Dollar General Store. The Dollar 

General was located about half a mile from the Pilot Station. Jessica Montoya had 

driven to the Dollar General Store. She parked her van next to a light-colored car 

in front of the store and went inside. Her daughters, sixteen and six years of age, 

stayed in the van. The older child was sitting in front, and the younger girl was 

seated behind her playing video games on her mother’s phone. 

The 16-year-old noticed that the man in the next car was acting in a 

strange manner. He had gotten got out of his car, walked to the passenger side, and 

 

2 Kentucky Rules of Criminal Procedure.

3 Kentucky Revised Statutes.
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opened that door. From the corner of her eye, the 16-year-old saw the man pull out 

his penis and begin touching it. Upon leaving Dollar General, Ms. Montoya 

noticed a police car with blue lights. She got in the van and drove home. En route, 

the 16-year-old told Ms. Montoya what had occurred. She dropped the children off 

at home and returned to Dollar General to speak to the police. The police had Ms. 

Montoya hold up her phone, and the 16-year-old identified the man she had seen 

on Facetime. The man was Mario Fredrick, the driver of the car whom the police 

had stopped in the parking lot of the Dollar General Store. 

On December 7, 2018, a Christian County grand jury indicted 

Fredrick charging him with one count of indecent exposure, first degree, fourth 

offense or greater pursuant to KRS 510.148.4 On April 5, 2019, the grand jury 

issued a superseding indictment and additionally charged Fredrick with sexual 

abuse, first degree, pursuant to KRS 510.110.5 On June 7, 2019, the grand jury 

indicted Fredrick for being a PFO, first degree, pursuant to KRS 532.080 for 

having been previously convicted of at least one felony sex crime against a minor: 

“Solicitation of Sexual Exploitation of a Minor, 4 counts by judgment of the 

 

4

Indictment No. 18-CR-00691. 

5

Id. 
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Criminal Circuit Court, Rutherford County, Tennessee, Case No. F-72726, entered 

on or about December 14, 2015[.]”6

Fredrick was tried on January 16-17, 2020. The Commonwealth 

explains that the trial was bifurcated pursuant to KRS 532.080(1).7In the first 

phase, the jury found Fredrick guilty of indecent exposure. In the second phase, 

the jury determined that Frederick had previously committed that offense on three 

or more previous occasions. It also found that Fredrick was a PFO in the first 

degree due to his previous conviction of four counts of solicitation of sexual 

exploitation of a minor.

On March 31, 2020, the trial court entered an amended judgment and 

sentence on his plea of not guilty, reflecting that Fredrick was adjudged: guilty of 

indecent exposure, first degree, fourth offense or greater; and guilty of persistent 

felony offender, first degree. He was sentenced to “5 years on Indecent Exposure, 

First Degree, Fourth Offense or Greater[;] however, this sentence is enhanced to 10 

years on Persistent Felony Offender, First Degree.”

 

6

Indictment No. 19-CR-00383.

7 KRS 532.080(1) provides in relevant part that: “When a defendant is charged with being a 

persistent felony offender, the determination of whether or not he is such an offender and the 

punishment to be imposed pursuant to . . . this section shall be determined in a separate 

proceeding from that proceeding which resulted in his last conviction.”
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Fredrick appeals as a matter of right. The first issue he raises is that 

his sentence was enhanced twice in violation of subsection 10 of KRS 532.080, 

Kentucky’s PFO sentencing statute. He seeks palpable error review under RCr

10.268 on the ground that he was sentenced contrary to statute. 

In Turner v. Commonwealth, 538 S.W.3d 305 (Ky. App. 2017), the 

appellant argued that his sentence for second-degree trafficking in a controlled 

substance was impermissibly enhanced on the basis of his status as a PFO in 

violation of KRS 532.080(10). This Court explained as follows:

Turner’s first claim of error challenges the 

propriety of his sentencing. We agree with him that “an 

appellate court is not bound to affirm an illegal sentence 

just because the issue of the illegality was not presented 

to the trial court.” Jones v. Commonwealth, 382 S.W.3d 

22, 27 (Ky. 2011). Consequently, “true ‘sentencing 

issue[s]’ . . . cannot be waived by failure to object” and 

may be raised on appeal, even if for the first time. 

Roberts v. Commonwealth, 410 S.W.3d 606, 611 (Ky. 

2013). We also agree with Turner that his is a true 

sentencing issue, and we shall address it notwithstanding 

any challenge to its preservation.

Id. at 309.

 

8 RCr 10.26 provides in relevant part that: “A palpable error which affects the substantial rights 

of a party may be considered . . . by an appellate court on appeal, even though insufficiently 

raised or preserved for review, and appropriate relief may be granted upon a determination that 

manifest injustice has resulted from the error.”
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We must determine whether Fredrick was sentenced contrary to 

statute. KRS 510.148, “Indecent exposure in the first degree,” provides that:

(1) A person is guilty of indecent exposure in the first 

degree when he intentionally exposes his genitals under 

circumstances in which he knows or should know that his 

conduct is likely to cause affront or alarm to a person 

under the age of eighteen (18) years.

(2) Indecent exposure in the first degree is a:

(a) Class B misdemeanor for the first offense;

(b) Class A misdemeanor for the second offense, if it 

was committed within three (3) years of the first 

conviction;

(c) Class D felony for the third offense, if it was 

committed within three (3) years of the second 

conviction; and

(d) Class D felony for any subsequent offense, if it 

was committed within three (3) years of the prior 

conviction.

Fredrick explains that in his case, the penalty for indecent exposure 

was already increased to the higher classification of a Class D felony under KRS 

510.148. He argues that further enhancement is prohibited by the 2011 

amendment to Kentucky’s PFO statute, KRS 532.080(10),9 which provides: “that 

 

9

“On June 8, 2011, the General Assembly enacted House Bill 463 (‘HB 463’), titled the Public 

Safety and Offender Accountability Act. HB 463 overhauled the Commonwealth’s sentencing 

policies . . . . Section 26 of HB 463 added a new provision to the persistent felony sentencing 

statute, KRS 532.080[(10).]” Turner, 538 S.W.3d at 310. 
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the PFO enhancement law ‘shall not apply’ to a person whose offense has been 

increased from a lower misdemeanor classification to a higher felony classification 

under the second or subsequent offense law[.]” (Appellant’s Brief, at page 4). 

Effective July 12, 2012, KRS 532.080(10) provides that:

(a) Except as provided in paragraph (b) of this 

subsection, this section shall not apply to a person 

convicted of a criminal offense if the penalty for that 

offense was increased from a misdemeanor to a felony, 

or from a lower felony classification to a higher felony 

classification, because the conviction constituted a 

second or subsequent violation of that offense.

(b) This subsection shall not prohibit the application 

of this section to a person convicted of:

1. A felony offense arising out of KRS

189A.010, 189A.090, 506.140, 508.032, 508.140, 

or 510.015; or

2. Any other felony offense if the penalty was not 

enhanced to a higher level because the 

Commonwealth elected to prosecute the person as 

a first-time violator of that offense.

(Emphases added.)

Under KRS 532.080(10)(a), PFO enhancement shall not apply to a 

person convicted of a criminal offense where the penalty classification was 

increased because the conviction was a second or subsequent violation offense. 

However, under subsection (10)(b)1., PFO enhancement is not prohibited where 
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the conviction arose out of certain enumerated felony offenses including those 

arising out of KRS 510.015.

KRS Chapter 510 governs sexual iffenses. KRS 510.015 is entitled 

“Treatment of third or subsequent misdemeanor under KRS Chapter 510 as Class 

D felony” and provides that:

Unless a higher penalty is otherwise prescribed and 

notwithstanding any provision of this chapter to the 

contrary, a person who commits a third or subsequent 

misdemeanor offense under this chapter, except for 

violations of KRS 510.150, may be convicted of a Class 

D felony. If the Commonwealth desires to utilize the 

provisions of this section, the Commonwealth shall indict 

the defendant and the case shall be tried in the Circuit 

Court as a felony case. The jury, or judge if the trial is 

without a jury, may decline to assess a felony penalty in a 

case under this section and may convict the defendant of 

a misdemeanor.

(Emphases added.) 

In the case before us, Fredrick committed a third or subsequent 

offense under KRS Chapter 510 -- specifically in violation of KRS 510.148 -- and 

was convicted of a Class D Felony. Consequently, Fredrick is a person convicted 

of a felony offense arising out of KRS 510.015, and application of the PFO 

enhancement is not prohibited pursuant to KRS 532.080(10)(b)1.

Next, Fredrick argues that even if his PFO enhancement stands, he 

should be a PFO in the first degree. 

KRS 532.080(3) provides in relevant part that:
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A persistent felony offender in the first degree is a person 

who is more than twenty-one (21) years of age and who 

stands convicted of a felony after having been convicted 

of two (2) or more felonies, or one (1) or more felony sex 

crimes against a minor as defined in KRS 17.500, and 

now stands convicted of any one (1) or more felonies. 

Fredrick explains that he was indicted as a PFO First for having four 

prior felony convictions and that he was convicted of four counts of sexual 

exploitation of a minor in a Rutherford County, Tennessee case No. F-72726, 

which were stacked to run consecutively for a total of five years. He argues that 

under KRS 532.080(4), he “was entitled to have his sentence from Tennessee 

considered as one uninterrupted consecutive sentence and thus a single prior 

conviction for PFO purposes.” (Appellant’s Brief, at p. 8). KRS 532.080(4) 

provides that: 

For the purpose of determining whether a person has two 

(2) or more previous felony convictions, two (2) or more 

convictions of crime for which that person served 

concurrent or uninterrupted consecutive terms of 

imprisonment shall be deemed to be only one (1) 

conviction, unless one (1) of the convictions was for an 

offense committed while that person was imprisoned.

The Commonwealth responds that Fredrick’s reliance on KRS 

532.080(4) is misplaced because KRS 532.080(3) requires proof of only one prior 

sexual offense felony involving a minor as defined by KRS 17.500. 
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Our Supreme Court explained in Bullitt v. Commonwealth, 595 

S.W.3d 106 (Ky. 2019),

10 as follows:

KRS 532.080(3) provides the elements for proving 

a defendant is guilty of being a PFO I. Pertinently, a 

person is guilty of being a PFO I when he stands 

convicted of committing one or more felony sex crimes 

against a minor as defined in KRS 17.500 and the 

previous felony conviction may include convictions in 

any other jurisdiction as long as certain conditions are 

met. As to other jurisdictions, KRS 17.500(8)(c) defines 

“sex crime” as a “felony offense from another state or a

territory where the felony offense is similar to a felony

offense specified in [KRS Chapter 510, Sexual 

Offenses].” 

Id. at 109-10 (footnotes omitted). 

The appeal of Fredrick’s Rutherford County, Tennessee, case No. F72726, State v. Frederick, No. M201600737CCAR3CD, 2017 WL 2117026 (Tenn. 

Crim. App. May 15, 2017), explains that:

Mario Frederick was convicted of two counts of 

solicitation of sexual exploitation of a minor, a Class E 

felony, two counts of solicitation of sexual exploitation 

of a minor less than thirteen years of age, a Class C 

felony, and three counts of indecent exposure, a Class B 

misdemeanor. He received an effective sentence of five 

years’ incarceration.

Id. at *1. 

 

10 In Bullitt, the defendant’s sentence for first-degree rape was enhanced pursuant to the jury’s 

finding him guilty of being a first-degree PFO based on a Georgia conviction for statutory rape.
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Copies of the judgments in the Tennessee case11 entered on December 

14, 2015, reflect that Fredrick was convicted (inter alia) of an October 3, 2013,

offense of Solicitation of Sexual Exploitation of a Minor, TCA12 §39-13-529, a 

Class C Felony.13 State v. Frederick discusses the statute at issue:

Tennessee Code Annotated section 39-13-529(b)(1) 

(2013) defines the offense of soliciting sexual 

exploitation of a minor as a person over the age of 

eighteen directly and intentionally engaging in sexual 

activity for the purpose of having the minor view the 

sexual activity, including circumstances where the minor 

is in the presence of the person. Additionally, if the 

minor is less than thirteen years old, the violation is a 

Class C felony. Id. § 39-13-529(f)(2) (2013). As relevant 

here, the term “sexual activity” includes 

“[m]asturbation.” Id. § 39-13-529(e)(4)(B) (2013). A 

person “acts intentionally with respect to the nature of the 

conduct or to a result of the conduct when it is the 

person’s conscious objective or desire to engage in the 

conduct or cause the result.” Id. § 39-11-302(a). 

Id. at *9. 

We are satisfied that the Tennessee statute is sufficiently similar to a 

felony offense specified in KRS Chapter 510 -- namely, KRS 510.148, supra -- to 

 

11 Appendix “C” to Appellant’s Brief.

12 Tennessee Code Annotated.

13 For purposes of Kentucky’s PFO statute, a foreign conviction is a felony if it is for “a crime 

for which the minimum sentence that could be imposed is one year or more . . . .” Clark v. Com., 

324 S.W.3d 747, 751 (Ky. App. 2010). The authorized term of imprisonment for a class C 

felony in Tennessee is “not less than three (3) years nor more than fifteen (15) years.” TCA §40-

35-111(b)(3).
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be considered as a felony sex crime against a minor as defined in KRS 17.500 in 

order for Fredrick to be convicted as a PFO in the first degree under KRS 

532.080(3).

Fredrick’s third argument is that the penalty phase evidence violated 

KRS 532.055. The statute addresses sentencing by the jury in felony cases. 

Fredrick requests palpable error review and contends that the use of improper 

evidence resulted in manifest injustice. 

Fredrick explains that his “prior convictions were not read into 

evidence as prescribed by KRS 532.055(2)(a).” Instead, the Commonwealth had 

the court clerk read the probable cause affidavits from Fredrick’s prior felony 

solicitation of sexual exploitation of minor charges to the jury, and the affidavits 

were made an Exhibit. Fredrick contends that the jury was presented with 

documents that named the victims, the location of the crime, and his sex-offender 

status. Thus, he contends that reading the probable cause affidavits inflamed the 

jury.

Fredrick cites Robinson v. Commonwealth, 926 S.W.2d 853, 855 (Ky. 

1996), in which our Supreme Court held that “all that is admissible as to the nature 

of a prior conviction is a general description of the crime.” He also relies upon 

Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011), which held that:

[E]vidence of prior convictions is limited to conveying to 

the jury the elements of the crimes previously committed. 
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We suggest this be done either by a reading of the 

instruction of such crime from an acceptable form book 

or directly from the Kentucky Revised Statute itself. 

Said recitation for the jury’s benefit, we feel, is best left 

to the judge. The description of the elements of the prior 

offense may need to be customized to fit the particulars 

of the crime, i.e., the burglary was of a building as 

opposed to a dwelling. The trial court should avoid 

identifiers, such as naming of victims, which might 

trigger memories of jurors who may—especially in rural 

areas—have prior knowledge about the crimes.[14]

The Commonwealth argues that Fredrick has not established that any 

error was unduly prejudicial because he received only the minimum sentence 

available under KRS 532.080(6)(b).15 We agree. Parker v. Commonwealth, 482 

S.W.3d 394, 407-08 (Ky. 2016) (to be entitled to RCr 10.26 relief, defendant must 

show likelihood that but for the error a different sentence would have been 

imposed, where it was presumed jury had access to unredacted prior conviction 

records including details such as victims’ names). 

 

14 It does not appear that the naming of victims would present the same concerns here because 

the prior offenses occurred in Tennessee.

15 KRS 532.080(6)(b) provides that:

If the offense for which he presently stands convicted is a Class C or Class 

D felony, a persistent felony offender in the first degree shall be sentenced 

to an indeterminate term of imprisonment, the maximum of which shall 

not be less than ten (10) years nor more than twenty (20) years.
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Next, Fredrick argues that that the Commonwealth introduced 

evidence of a prior uncharged crime -- police testimony regarding the earlier 

incident at the Pilot gas station -- which was highly prejudicial in violation of 

KRE16 402, 403 and 404 and his due process rights under the 5th and 14th

Amendments to the U.S. Constitution and Sections 2, 7, and 11 of the Kentucky 

Constitution. He again requests palpable error review. “[W]hat a palpable error

analysis ‘boils down to’ is whether the reviewing court believes there is a 

‘substantial possibility’ that the result in the case would have been different 

without the error. If not, the error cannot be palpable.” Brewer v. Commonwealth,

206 S.W.3d 343, 349 (Ky. 2006). 

We do not believe there is a substantial possibility that the result in 

the case before us would have been different without the evidence about the Pilot 

gas station incident -- if indeed any error occurred. As the Commonwealth notes, 

the 16-year-old who identified Fredrick as the man who had exposed himself to her 

at the Dollar General testified at trial, her testimony was “basically unrefuted,” and 

Fredrick received the minimal sentence under KRS 532.080(6)(b). 

Fredrick’s last argument is that the Commonwealth committed 

prosecutorial misconduct. He again requests palpable error review. Fredrick 

asserts that “[d]uring the penalty phase of trial, the Commonwealth argued that Mr. 

 

16 Kentucky Rules of Evidence.
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Fredrick had uncharged crimes that were forthcoming and that the jury should send 

a message to Mr. Fredrick because of his criminal history[.]” (Appellant’s Brief, p. 

20). He then quotes a portion of the prosecutor’s argument regarding Fredrick’s 

prior convictions, which asks the jury to sentence him appropriately for his past 

behavior. Fredrick fails to persuade us that a palpable error occurred. Moreover, 

“a ‘send a message’ argument at the penalty phase of trial is not inappropriate so 

long as it focuses on deterrence[.]” Little v. Commonwealth, 553 S.W.3d 220, 230 

(Ky. 2018). 

We AFFIRM the judgment of conviction of the Christian Circuit 

Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Adam Meyer

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Perry T. Ryan

Assistant Attorney General

Frankfort, Kentucky