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

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1101-MR

JEFFREY DOUGOUD APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT

v. HONORABLE JULIE REINHARDT WARD, JUDGE

ACTION NO. 19-CR-00141

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Jeffrey Dougoud appeals from his convictions on two 

counts of sexual abuse in the first degree and sentencing for those convictions by 

the Campbell Circuit Court following a jury trial. We affirm as the circuit court 

properly denied: (1) Dougoud’s motions for a directed verdict as there was 

sufficient evidence to establish the two counts of sexual abuse based on sexual 
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contact by forcible compulsion; (2) Dougoud’s motion to review victim’s 

psychotherapy records as Dougoud failed to make the preliminary showing needed 

to access them; (3) Dougoud’s motion for a mistrial as mother’s statement that he 

had killed before in the line of duty was appropriately addressed through an 

admonition. We also reject Dougoud’s argument that cumulative error based on 

improper character evidence requires reversal as the circuit court properly 

addressed the objections that Dougoud made. 

FACTUAL AND LEGAL BACKGROUND

Assuming the truth of the evidence in favor of the Commonwealth, 

and drawing all fair and reasonable inferences from it, the facts are as follows. The 

victim in this case was C.T. (victim). Victim’s mother and stepfather1 had a home 

outside of Alexandria, Kentucky. They had four sons – two each from previous 

marriages – who lived there at least some of the time. Victim, who was born in 

2001, was the oldest and he lived primarily in that home.

Stepfather had been friends with Dougoud for most of his life. 

Mother had met Dougoud before, but they became friends only after he started 

visiting the house regularly in 2015 to socialize with the family. Dougoud was 

openly gay, and stepfather and mother accepted his sexuality.

1 To protect victim’s privacy, we do not refer to mother and stepfather by name. Mother and 

stepfather previously cohabitated and then married after the incidents at issue but before the trial; 

to avoid confusion, we consistently refer to mother’s paramour and then husband as stepfather.
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According to stepfather and mother, Dougoud usually carried a 

Kimber .380 handgun, holstered to his hip. Stepfather also owned and carried 

firearms. Stepfather, Dougoud, and sometimes the boys, would step out to 

stepfather’s backyard range to shoot. Victim testified that, on occasions prior to 

the events of this case, Dougoud showed him the Kimber he usually carried and 

allowed him to fire it at the backyard range; that Dougoud often spoke about being 

a military veteran; and that Dougoud had frequently described himself as a “wellreceived and important” and “well-qualified” member of the armed forces, “some 

form of sniper,” and that he “had killed during his service.”

Victim considered himself to have had a great relationship with 

Dougoud prior to the events of this case, and he thought of Dougoud as the 

equivalent of his “uncle.” He also liked Dougoud’s pickup truck. 

On September 21, 2016, when victim was 15 years old, Dougoud 

picked victim up from his home under the pretense of giving him practice driving 

the truck. Mother photographed victim in the driver’s seat before the two of them 

departed and posted the photograph to her social media account. She testified her 

understanding was that victim and Dougoud were going to practice driving in the 

parking lot of a local elementary school.

Thereafter, Dougoud and victim alternated driving backroads in 

Campbell County. They stopped at victim’s house briefly; then victim drove to a 
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convenience store five minutes away where they purchased drinks. Afterward, 

Dougoud took over driving, initially heading back toward victim’s house, and 

victim believed they were returning to his home until Dougoud passed his street 

and began traveling roads unfamiliar to victim.

Victim testified that during the drive his conversation with Dougoud 

started out “normal,” but that as Dougoud continued driving, he gradually steered 

it toward sexual topics. He questioned victim about his workout routine. He asked 

victim about his abdominal muscles and told victim to show them to him. Victim

thought Dougoud’s request was “weird,” but raised his shirt. Dougoud “poked” 

his abdominal muscles and said that victim was “doing alright.” 

Next, according to victim, Dougoud asked about the appearance of 

victim’s pubic hairline, and whether victim trimmed it. Victim testified that at that 

point, he was scared. No one had ever asked to see his pubic hairline; he believed 

the request was odd; and he told Dougoud, “that’s kind of weird. I don’t really 

want to do that.” Dougoud responded, “No, it’s okay. You should really just show 

me.” When victim refused again, Dougoud said, forcefully, “No. Show me.” 

Victim testified, “at that point, I felt like I had to, or something was 

going to happen that I didn’t want to happen.” Victim hooked his thumb inside the 

waistband of his pants “and just kind of pushed downward, and you could see the 

line, but nothing more. And after that, I pulled my pants back up as fast as I could, 
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and just kind of sat there.” Victim testified Dougoud told him his pubic line 

“wasn’t that bad,” and that he’d “seen worse,” which made victim feel awkward.

After the two discussed other topics, Dougoud then asked victim

whether he had ever had sex or anything like it. Victim answered that he and his 

girlfriend had engaged in sexual activity but had not had sex. Dougoud asked 

victim what he was “working with,” and if he was “doing a good enough job.” 

Victim did not understand. From there, things progressed:

Victim: And at that point, he was like, “Well, why don’t 

you show me what you got? And I was like, “I don’t 

think that’s good at all. I really don’t want to do this.” 

And he was like, “No. You should really, you should 

really show me.” And, um, at that point I was, I was 

really scared. I mean, you hear of this stuff happening to 

other people, but, uh, I didn’t think it was going to be me. 

And, um, he was like, “You should really just, just show 

it to me.” Um, I said okay. I felt like I had to. I didn’t 

see any other option, it was in a moving car. So I did 

what he had told me to do, and took my penis out.

Victim testified Dougoud then “complimented” him on his penis. 

Victim testified he felt uncomfortable and did not want to be in the truck with 

Dougoud. He further testified:

Victim: At that point, he was getting ready to make a 

turn in the road. As all of this was happening, he was 

still driving. And, at that point, when he looked away, I 

pulled my pants up as fast as I could. And he looked 

back over and said, “No. Pull that back out.” And I was 

like, “Uh, I don’t really think so.” And he was like, “No, 

it’s okay. You should do that.” And, I did.
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Commonwealth: And why did you do that?

Victim: Again, that same forceful, assertive 

commentary, I guess you would say. The voice he was 

giving to me, I didn’t feel like I had an alternative. I felt 

like if I didn’t, then something was going to happen to 

me, and I couldn’t get away because I was in a truck, 

moving. I couldn’t just jump out. So I did what he asked 

again. And at that point, he asked me to touch myself, 

um, masturbate, and I did as he agreed, er, I did what he 

had asked, I agreed. I did that, and, um, at that point, he, 

had had, um, taken his own penis out while he was 

driving. And, we were right by a church, um, that we 

were passing, and he had, um. I looked out the window 

for a split second.

Commonwealth: You said the window, which window 

were you looking out of?

Victim: The passenger-side window. And I had looked 

out the window, um, and he, when I looked back, I heard 

a sound and it was his belt coming undone. You know 

how you can hear a belt, it’s metal. I looked back and he 

had pulled his pants to about his lower thigh, towards his 

knees. And, he had his penis out, and asked me to touch 

it. And, I was like, “that’s a little much. I don’t, I don’t 

think I want to do that at all.” And, he had said, “Naw, 

it’s okay. You should do that.” I was like, “No, I really 

don’t want to.” He was like, “No. Do it. Touch it.” As, 

overall, I was just scared. Um, and then he said it again, 

he had, almost like a, not quite a snap, but like a break of 

just like, “No! Do it!” Um, I said “okay.” Um, I just, I 

just touched it, and then backed off, just quick. Just 

placed and then removed. 

Victim then testified about the incident that formed the basis for the 

first sexual abuse charge:
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Victim: . . . And then at that point he had grabbed my 

hand and placed it around it [Dougoud’s penis] in a, like 

this. Like a, what would, a circular motion with my 

hand.

Commonwealth: So, you’re saying he placed his hand 

onto, over your hand?

Victim: Yes. Over my hand. Like this, and then 

wrapped around his penis, and made me perform a 

masturbatory motion.

Commonwealth: And when you said he “made you,” 

how did he make you?

Victim: Um, my, his hand was around mine, and kind of 

did it himself, but my hand was there and in between. 

And, um, he had made me do that for a while, and then 

he had to make a turn, not like a full turn, but a veer, with 

both hands, and I removed my hand as soon as he took it 

off.

Victim testified that shortly after he had removed his hand from 

Dougoud’s penis, Dougoud drove them to a wooded section of an isolated road and 

parked. Victim started to pull his pants up, and Dougoud told, rather than asked, 

victim to pull them back down. Victim complied. Dougoud opened the center 

armrest and removed a partial roll of paper towels that held a bottle of lubricant in 

the core. Dougoud used his own hand to apply the lubricant to his own penis. 

Victim then testified about the incident that formed the basis for the 

second sexual abuse charge. Dougoud then rubbed lubricant onto victim’s penis. 

Victim did not resist. Victim testified that while this was happening: 
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Victim: I was just overall scared and anxious, not only 

because of, I was worried about what was happening, but 

also what would happen if I did try to escape? Or, or just 

say anything about it, ever? And that was already going 

through my head when it was happening. 

Victim testified that immediately after Dougoud rubbed lubricant onto 

his penis, Dougoud reached down and produced a handgun (what victim 

recognized as Dougoud’s Kimber .380, still in its nylon holster); placed the 

holstered gun onto the dashboard, barrel pointed toward victim; and said in a stern 

tone, “I’m just going to get this out of the way.” Victim testified this was the first 

time he had seen the weapon during their ride, that he regarded the action as an 

intimidation tactic, and that he was in fact intimidated by it.

We will not detail the remainder of the incident between victim and 

Dougoud in the truck, as what followed formed the basis of the sodomy charge 

which is not at issue in this appeal. 

Before Dougoud ultimately drove victim home, the following 

exchange took place according to the victim.

Victim: He said, “Now, you know not to tell anybody 

about this, right?” And I said, “Yeah. I gathered.” And 

he said, “You know I’ve killed people before. I’m not 

afraid to do it again.” I just kind of nodded.

After the conclusion of the jury trial, Dougoud was convicted of two 

counts of sexual abuse in the first degree, one count of sodomy in the third degree,
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and was consequently sentenced to three consecutive terms of five years’ 

imprisonment, for a total of fifteen years. 

ISSUES ON APPEAL

Half of Dougoud’s appeal is devoted to what he believes were the 

circuit court’s errors in denying his directed verdict motions regarding his sexual 

abuse charges. The latter half of his appeal relates to asserted evidentiary errors. 

I. DIRECTED VERDICT ON SEXUAL ABUSE CHARGES

Our standard of review relative to a trial court’s denial of a directed 

verdict motion is as follows: 

[O]n a motion for 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 purposes 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.

To defeat a directed verdict motion, the 

Commonwealth must only produce more than a mere 

scintilla of evidence. On appellate review, the test of a 

directed verdict is, 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.

Lynch v. Commonwealth, 642 S.W.3d 647, 658 (Ky. 2022) (internal citations, 

brackets, quotation marks, and footnotes omitted).
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The Commonwealth’s theory of its case against Dougoud was that he 

was guilty of two counts of sexual abuse in the first degree because, on two 

occasions during a truck ride, he subjected victim to sexual contact “by forcible 

compulsion.” Kentucky Revised Statutes (KRS) 510.110(1)(a). In his motion for 

a directed verdict, Dougoud argued the Commonwealth failed to present sufficient 

evidence of the “forcible compulsion” element with respect to both counts.

“Forcible compulsion,” for purposes of sexual abuse in the first 

degree, means:

[P]hysical force or threat of physical force, express or 

implied, which places a person in fear of immediate 

death, physical injury to self or another person, fear of 

the immediate kidnap of self or another person, or fear of 

any offense under this chapter. Physical resistance on the 

part of the victim shall not be necessary to meet this 

definition[.]

KRS 510.010(2) (emphasis added).

In other words, there are two types of “forcible compulsion” described 

in KRS 510.010(2): (1) “physical force” forcible compulsion; and (2) “threat” 

forcible compulsion. The Commonwealth relied on both types to prove its case 

against Dougoud, using “physical force” forcible compulsion to secure a 

conviction as to the first count of sexual abuse and “threat” forcible compulsion to 

secure a conviction on the second count of sexual abuse. 
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A. Did the Commonwealth present sufficient evidence to establish 

the first count of sexual abuse by “physical force” forcible 

compulsion?

As to “physical force” forcible compulsion, the Kentucky Supreme 

Court explained in Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014), what was 

sufficient as follows:

We have found that a defendant used forcible 

compulsion to commit sexual abuse by taking the 

victim’s hand, without her consent, and placing it on the 

area of his pants over his penis. Gibbs v. 

Commonwealth, 208 S.W.3d 848 (Ky. 2006), overruled 

on other grounds by Padgett v. Commonwealth, 312 

S.W.3d 336 (Ky. 2010). This is correct because he 

directly compelled her to touch him.

. . .

While it is true that an act as simple as grabbing 

someone’s hand can amount to lack of consent by 

forcible compulsion given the right circumstances, not all 

touching will provide those circumstances. If that were 

the case, then every sex act between otherwise 

consenting adults would satisfy the elements of the firstdegree rape statute, because there is always physical 

contact between them. Instead, the phrase “forcible 

compulsion” requires another factual element, namely, 

lack of consent by the victim, in the sense of lack of 

voluntariness or permissiveness. This is dictated by the 

use of the word “compulsion.”

Id. at 890 (emphasis added). Stated differently, the definition of “physical force” 

forcible compulsion, as opposed to “threat” forcible compulsion, requires nothing 

more than physical contact without permission of the victim. “[T]he evaluation of 
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physical force is based on a victim’s express non-consent, or other involuntariness,

to a defendant’s act. Thus, it may be in one case that a touch of the hand 

constitutes forcible compulsion while in another it does not.” Id. at 891.

Regarding the first count of sexual abuse in the first degree of which 

Dougoud was convicted, the jury determined:

A. That in [Campbell] county, on or about September 

21, 2016, and before the finding of the Indictment herein;

B. The Defendant engaged in sexual contact with 

[victim] when the Defendant grabbed [victim’s] hand and 

put it on the Defendant’s penis;

AND

C. That the Defendant did so by forcible compulsion.

On appeal, Dougoud argues his “act of placing [victim’s] hand on 

[Dougoud’s] penis should not be considered a physical act that compelled or was 

sufficient to overcome the [victim’s] own volition under these facts,” further 

explaining in his brief:

In this case, according to [victim’s] testimony, [victim] 

had allegedly already acted on several of Mr. Dougoud’s 

propositions, such as [victim] showing Mr. Dougoud his 

penis and [victim] touching Mr. Dougoud’s penis. 

[Victim] only alleged that Mr. Dougoud urged him to 

participate. [Victim] did not testify that when Mr. 

Dougoud placed his hand on his penis, that he hesitated 

in any way or told Mr. Dougoud to stop. In fact, the only 

time [victim] claimed he told Mr. Dougoud to stop, Mr. 

Dougoud complied.
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 We disagree. Based upon victim’s testimony, a reasonable jury could 

find victim evinced, at the very least, “other involuntariness.” Yates, 430 S.W.3d 

at 891. Victim testified that when this offense occurred, he believed he had no 

means of escaping from Dougoud, as they were traveling in a moving vehicle in an 

unfamiliar area. He rejected each of Dougoud’s “propositions” until Dougoud 

changed them from requests or suggestions to intimidating demands. When victim 

acquiesced, he attempted to do so minimally: He “pulled [his] pants back up as 

fast as [he] could” after showing Dougoud his pubic hairline; he “pulled [his] pants 

up as fast as [he] could” to cover his exposed penis “when [Dougoud] looked 

away”; and when Dougoud exposed his own penis and asked – then told – victim 

to touch it, victim “just touched it, and then backed off, just quick. Just placed and 

then removed.” 

Victim also testified about what Dougoud “made” him do: Dougoud 

“grabbed” victim’s hand and used it as a means of masturbating himself. This was 

well beyond the scope of anything victim had minimally acquiesced in; and when 

Dougoud released victim’s hand, victim immediately removed his hand from 

Dougoud’s penis. Thus, evidence of record supported that victim had no desire to 

touch Dougoud’s penis and that, but for Dougoud’s physical compulsion, victim 

would not have held and rubbed it.
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As for Dougoud’s assertion that “the only time [victim] claimed he 

told Mr. Dougoud to stop, Mr. Dougoud complied,” Dougoud is referring to an 

incident a short time later on in the truck when, according to victim, Dougoud put 

his left hand underneath victim’s legs, reaching for victim’s anus; victim pushed 

his arm away and jumped high enough to strike his head on the cabin ceiling; and 

Dougoud snickered and remarked, “I guess you’re not into that.” Whether 

Dougoud subsequently did not touch victim’s anus does not, for directed verdict 

purposes, somehow negate the evidence that Dougoud forcibly compelled victim to 

touch Dougoud’s penis. Therefore, the circuit court committed no error in denying 

this facet of Dougoud’s directed verdict motion.

B. Did the Commonwealth present sufficient evidence to establish 

the second count of sexual abuse by “threat” forcible 

compulsion? 

As to “threat” forcible compulsion as defined in KRS 510.010(2), 

“the Commonwealth was required to show that Appellant (1) made a threat of 

physical force (2) either explicitly or implicitly (3) that created fear (4) of 

immediate death or physical injury (5) to the victim or another person.” Yates, 430 

S.W.3d at 892. “In determining whether the victim felt threatened to engage in sex 

or feared harm from the attacker, a subjective test is applied.” Newcomb v. 

Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (citation omitted).
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Regarding the second count of sexual abuse in the first degree, the 

jury determined:

A. That in [Campbell] county, on or about September 

21, 2016, and before the finding of the Indictment herein;

B. The Defendant engaged in sexual contact with 

[victim] when the Defendant rubbed [victim’s] penis;

AND

C. That the Defendant did so by forcible compulsion.

Dougoud argues the Commonwealth failed to present evidence of 

“threat” forcible compulsion in this instance as set out in Yates. In particular, he 

claims a directed verdict was warranted regarding this second offense because, in 

relation to it, the Commonwealth failed to adduce evidence that he made any threat 

of physical force.

We disagree with Dougoud’s contention that no evidence was 

produced supporting, at the very least, that he implicitly threatened victim with 

physical force that caused victim to fear immediate death or physical injury. A 

reasonable jury could infer, based upon the circumstances that preceded 

Dougoud’s rubbing lubricant on victim’s penis, that victim honestly believed 

Dougoud would harm him if he resisted. Victim assumed, prior to this incident, 

that Dougoud had killed in the line of duty; Dougoud had told him so. Victim had 

no reason to doubt Dougoud was able to kill again, as victim knew Dougoud often 
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carried a pistol, had witnessed Dougoud’s skill in using firearms, and because 

Dougoud had told victim that Dougoud had received specialized military training. 

From victim’s testimony, it could be inferred that Dougoud’s skill with firearms, 

military experience, and apparent history of killing was, by Dougoud’s design, a 

constant undercurrent throughout this incident and a standing, implicit threat of 

harm that commanded victim’s obedience. 

In the moments before this second offense, Dougoud had become an 

unpredictable stranger to victim; his demeanor toward victim had suddenly shifted, 

for the first time, from that of a trusted family friend, to that of someone willing to 

demand and, despite victim’s reluctance, ultimately compel sexual contact from 

him. Moreover, Dougoud had taken measures to isolate victim, who did not 

believe he could escape the situation; and had chosen a secluded location to 

perform the act, demonstrating he clearly did not wish to be caught.2 Sufficient 

evidence supported that victim had a well-founded belief that he would suffer 

immediate harm if he resisted Dougoud. Accordingly, the circuit court also 

properly denied this aspect of Dougoud’s directed verdict motion.

2 We do not consider victim’s testimony about the threats that Dougoud made after he rubbed 

lubricant on the victim’s penis (Dougoud’s act of placing the handgun on the dashboard pointing 

at victim “to get this out of the way” or the warning as Dougoud drove victim home that victim 

should not tell anyone because Dougoud had “killed people before” and was “not afraid to do it 

again.”). These later threats could not inform victim’s fear at the time of this second incident of 

sexual abuse. However they are consistent with victim having an implicit understanding of what 

Dougoud could do to victim, should Dougoud chose to do so, which Dougoud confirmed afterthe-fact through his threatening action and words.
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II. EVIDENTIARY ISSUES

Dougoud also asserts he is entitled to a new trial because, in his view, 

the circuit court made several erroneous evidentiary rulings. His arguments are 

addressed below. 

A. Access to Victim’s Psychotherapy Records 

On February 2, 2020, the day before trial, Dougoud moved the circuit 

court to order the production of victim’s psychological counseling records, and to 

conduct an in camera review of those records to ascertain whether they contained 

exculpatory evidence. In his motion, in relevant part, he explained:

Mr. Dougoud discovered that eight (8) months after this 

alleged incident, there was a family court hearing 

regarding [victim] in the Campbell Family Court, 02-CI1604. The matter revolved around [victim], and his 

desire to live with his dad. In anticipation of potential 

impeachment evidence, Mr. Dougoud ordered a certified 

copy of the hearing and some of the documents filed in 

regards to the hearing. Mr. Dougoud received said 

documents from the Campbell County Circuit Clerk on 

January 28, 2020.

In preparation of trial, on February 1, 2020 Mr. Dougoud 

discovered, in a Motion for Contempt, that [victim] had 

been receiving counseling with Viewpoint Psychological 

Services. This means, eight months after the alleged 

sexual assault, [victim] was working in counseling, with 

a licensed therapist, and that information was never 

provided to Mr. Dougoud in discovery.

. . .
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Applying the appropriate standard to the above styled 

case, it is clear that Mr. Dougoud is entitled to an in 

camera review of the psychiatric records of [victim], held 

by Viewpoint Psychological Services. There is clearly a 

reasonable belief they contain exculpatory evidence. 

[Victim] has made statements that he didn’t want to live 

with him [sic] mom because he “feared Dougoud.” Yet, 

while in counseling, it appears this was never disclosed 

as a basis for why he didn’t want to live with his mom. 

According to [victim’s] dad, [victim] was stating his 

mom kept “a dirty home, engages [him] in adult 

discussions, and often embarrasses him by being sexually

provocative on social media available to friends.”

Furthermore, this issue is confirmed by [victim] in his 

Children’s Advocacy Interview that he did not disclose a 

sexual assault as a basis for his issues in 2017 to his 

therapist. [Victim] was asked if he had ever told anyone 

these allegations. He responded he told three girls, in the 

back of a van, at the Waffle house. He never said he told 

a therapist. In fact, he never disclosed he had ever 

received therapy.

The circuit court considered Dougoud’s motion on the morning of the 

first day of trial; and again on February 4, 2020, after Dougoud renewed his 

motion. Denying it, the circuit court explained that any evidence derived from 

victim’s counseling records for the purposes expressed in Dougoud’s motion 

would be either irrelevant or cumulative. In that vein, the circuit court noted it was 

unnecessary to search victim’s 2017 counseling records to ascertain whether victim

had informed his therapist about his sexual encounter with and resulting fear of 

Dougoud because, as Dougoud noted in his motion, victim had already indicated 

in his CAC interview that, prior to February 2, 2019, he had never informed any
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adult of his sexual encounter with and resulting fear of Dougoud. Furthermore, it 

explained that if victim ultimately testified that his fear of Dougoud had caused 

him to want to stop living with his mother, Dougoud did not need victim’s 

counseling records for impeachment purposes. Rather, Dougoud could just as 

effectively resort to the family court’s record of victim’s custody proceedings, and 

what it indicated were the other reasons victim had expressed in that separate 

matter for not wanting to live with his mother.

Dougoud appeals the circuit court’s ruling. Upon review, we affirm. 

The Kentucky Supreme Court recently reviewed the law on this subject, 

explaining:

[I]n Commonwealth v. Barroso, this Court held that “[i]f 

the psychotherapy records of a crucial prosecution 

witness contain evidence probative of the witness’s 

ability to recall, comprehend, and accurately relate the 

subject matter of the testimony, the defendant’s right to 

compulsory process must prevail over the witness’s 

psychotherapist-patient privilege.” 122 S.W.3d 554, 563 

(Ky. 2003). The defendant must make a preliminary 

showing “sufficient to establish a reasonable belief that 

the records contain exculpatory evidence” before the 

records are subject to an in camera review by the trial 

court. Id. at 564. Exculpatory evidence has been 

described as “evidence favorable to the accused and 

material to guilt or punishment, including impeachment 

evidence.” Id. Evidence is material “only if there is a 

reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding 

would have been different.” United States v. Bagley, 473 

U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
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If the defendant makes this preliminary showing, 

then “the witness’s psychotherapy records are subject to 

production for an in camera inspection to determine 

whether the records contain exculpatory evidence, 

including evidence relevant to the witness’s credibility.” 

Barroso, 122 S.W.3d at 563.

Smith v. Commonwealth, 636 S.W.3d 421, 438-39 (Ky. 2021).

Evidentiary rulings are reviewed under the abuse of discretion 

standard. Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013). Here, no 

abuse occurred.

3

 As the circuit court’s ruling tends to indicate, Dougoud failed to 

make the “preliminary showing” that victim’s counseling records contained 

evidence that, within reasonable probability, would have favorably affected the 

outcome of his trial had they been produced. If the records confirmed that victim

had not discussed his sexual encounter with and resulting fear of Dougoud, his 

records would have been cumulative evidence. If the records demonstrated victim

had discussed those issues with his counselor in 2017, they would have 

undermined, rather than helped, Dougoud’s defense. And, to the extent victim’s 

records had the impeachment value expressed in Dougoud’s motion, the circuit 

court also did not cause Dougoud any undue prejudice by denying him access. The 

record of victim’s custody proceedings – which the circuit court permitted 

3 Dougoud also argues that if the circuit court abused its discretion in this regard, it should have 

also granted his motion to continue his trial for purposes of conducting an in camera inspection 

of victim’s counseling records. Considering that the circuit court did not abuse its discretion in 

this regard, this issue is moot.
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Dougoud to utilize at trial – had the same value. Additionally, during trial, 

Dougoud ultimately chose not to ask victim why victim wanted to move from his 

mother’s house to his father’s house.

B. Mother’s Statement Regarding Dougoud’s Comment that he 

had Killed People in the Line of Duty 

As discussed, victim testified that on occasions prior to his incident 

with Dougoud in the truck, Dougoud had described himself as a “well-received and 

important” and “well-qualified” member of the armed forces; “some form of 

sniper”; and that Dougoud had told him he “had killed during his service.” Victim

also testified he waited two-and-a-half years to tell an adult about the incident 

because Dougoud had told him after their encounter not to tell anyone about it, and 

“You know, I’ve killed people before. I’m not afraid to do it again.”

On appeal, Dougoud does not contest the relevance or admissibility of 

that testimony. However, he asserts the circuit court erred by denying his motion 

for a mistrial in relation to the following emphasized testimony that another 

witness, mother, provided during her direct examination by the Commonwealth:

Commonwealth: So [Dougoud] told you he was a sniper 

in the military?

Mother: Yes.

Commonwealth: Is that something that people in your 

family are aware of, your children?

Mother: Yes.
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Commonwealth: And why would they be aware of that?

Mother: He was very proud of it.

Commonwealth: Okay. And, when he talked about 

being a sniper, um, did he tell you any more detail, or 

what that entailed?

Mother: He said that he had killed people while 

overseas.

Mother testified before victim testified. Dougoud objected to the 

emphasized testimony based upon Kentucky Rules of Evidence (KRE) 404, 

claiming it improperly bolstered what he anticipated victim would later relate 

about how Dougoud had told victim that Dougoud had killed people in the line of 

duty while serving overseas. He asserted mother’s statement qualified as 

inadmissible evidence of “other crimes, wrongs, or acts” per subsection (b) of the 

rule; and that he had not been provided adequate notice of mother’s testimony 

pursuant to KRE 404(c).

The circuit court disagreed with Dougoud’s contention that mother’s 

testimony was prejudicial enough to warrant a mistrial. From the bench, it 

explained that any prejudice arising from the notion that Dougoud may have killed 

before was limited by the fact that, from all indications, he had only done so within 

the proper scope of his military service; and that it is commonly understood that 

military service – particularly military service as a sniper – can require the use of 

lethal force as an incident of duty. Nevertheless, upon Dougoud’s request, the 
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circuit court did instruct the jury to disregard mother’s testimony about whether he 

had any occasion to use lethal force while he was in the military.

As indicated, Dougoud now asserts the circuit court erred by denying 

his motion for a mistrial. We disagree. Our standard for reviewing a trial court’s 

denial of a mistrial request is as follows:

The decision to declare a mistrial is properly within the 

sound discretion of the trial court. A mistrial is an 

extreme remedy and should be resorted to only when 

there appears in the record a manifest necessity for such 

an action or an urgent or real necessity. A manifest 

necessity can be understood as to be an urgent need for a 

new trial in consideration of the totality of the 

circumstances. As such, a ruling declaring a mistrial will 

not be disturbed absent an abuse of discretion by the trial 

court.

Hammond v. Commonwealth, 504 S.W.3d 44, 51 (Ky. 2016) (internal quotation 

marks and citations omitted).

Here, we agree with the circuit court’s assessment that Dougoud’s 

claim that he had killed while fulfilling his military duties is qualitatively different 

from any claim that he had committed a prior criminal act or other wrong. Apart 

from that, 

[T]he jury is presumed to follow an admonition to 

disregard evidence and the admonition thus cures any 

error. Such presumption can be overcome by a showing 

either that there is an (1) overwhelming probability that 

the jury will be unable to follow the court’s admonition 

and there is a strong likelihood that the effect of the 

inadmissible evidence would be devastating to the 
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defendant, or (2) the question asked lacks any factual 

basis and was highly inflammatory.

Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021) (internal quotation, 

citations, and footnotes omitted). 

Relative to mother’s offending testimony, Dougoud does not argue –

nor do we find – it was overwhelmingly probable that the jury was unable to 

follow the circuit court’s admonition, or that the Commonwealth’s question lacked 

any factual basis. Therefore, we find no error in this respect.

C. Cumulative Error Regarding Improper Character Evidence

Dougoud also argues that mother’s offending testimony, taken in 

conjunction with three other purported evidentiary errors roughly following the 

same theme, amounted to cumulative reversible error – a point he did not raise 

below as a basis for a mistrial. 

“[M]ultiple errors, although harmless individually, may be deemed 

reversible if their cumulative effect is to render the trial fundamentally unfair. We 

have found cumulative error only where the individual errors were themselves 

substantial, bordering, at least, on the prejudicial.” Brown v. Commonwealth, 313 

S.W.3d 577, 631 (Ky. 2010) (citation omitted). “If the errors have not individually 

raised any real question of prejudice, then cumulative error is not implicated.” 

Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (internal quotation marks 

and citation omitted). “Where . . . none of the errors individually raised any real 
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question of prejudice, we have declined to hold that the absence of prejudice plus 

the absence of prejudice somehow adds up to prejudice.” Brown, 313 S.W.3d at 

631 (citation omitted).

As to the three other purported evidentiary errors, the first two involve 

statements made by the Commonwealth during its opening and closing arguments. 

Minutes before the Commonwealth made the statement during its opening 

arguments which Dougoud found objectionable, the circuit court cautioned the jury 

that:

Opening statements are really like a roadmap. It’s an 

opportunity for the attorneys to sort of tell you what they 

think the evidence is going to be presented to you, but 

their words, as [the Commonwealth] mentioned in her 

voir dire of you is not evidence. The attorneys at the end 

of the case will give you closing arguments. They try to 

sum up the evidence that they think that you’ve heard, 

and what it means, they think, it means to you or to them. 

But that doesn’t mean anything, meaning it’s just a 

roadmap and a closing. You all are ultimately the 

determinators to find out what the facts are, and what you 

believe those facts mean, based on the evidence and the 

law that I’m going to give you.

In its opening argument, the Commonwealth told the jury, “What you 

discover as you listen to the evidence is that the defendant, Jeffrey Dougoud, was 

known somewhat as being a badass.” Dougoud objected, arguing he had received 

no notice of “bad acts” evidence pursuant to KRE 404(c), and asked the circuit 

court to instruct the jury to disregard the Commonwealth’s statement. The circuit 
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court granted his request and instructed: “Ladies and gentlemen of the jury, in 

terms of the defendant being a ‘badass,’ I’m going to ask you to strike that from 

your minds at this point in time.” The Commonwealth thereafter proceeded, 

without objection, by stating: “What you’re going to hear is that [Dougoud’s] 

former military, they [i.e., his friends] thought he was in special forces, that he 

carried a weapon all the time, that he could hold his own, so he’s not someone you 

messed around with.”

Regarding the objectionable statement in its closing argument, prior to 

when the Commonwealth made it, the circuit court once again cautioned the jury 

that the arguments of counsel were not to be considered evidence. Dougoud 

objected to the emphasized language given in the following context, below:

So, what you heard from [victim] on the stand, when he 

described the various acts, the various steps this 

defendant engaged in, before he forced him to perform 

on him, before he forced him to do anything in this case, 

I want you to look back at it, at what he told you. How

did he start with it? He talked about sexual experiences. 

Here’s a 49-year-old man, trusted family friend, former 

military, has killed before –

At the ensuing bench conference, Dougoud’s counsel explained that 

whether Dougoud actually killed during his military service was never a fact in 

evidence; victim merely testified at trial that Dougoud told him he had done so. 

The circuit court sustained Dougoud’s objection, and the Commonwealth 

accordingly qualified what it had said, continuing its closing arguments by stating, 
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without objection: “When [victim] told you, that’s what he knew about him. 

That’s what he knew about Jeffrey Dougoud, he was a tough guy, he’d been in the 

military, and he had killed.”

With respect to the third purported evidentiary error, it occurred when 

the Commonwealth played a portion of a controlled call that authorities in the 

Campbell County Police Department had stepfather make to Dougoud in February 

2019, in an effort to have Dougoud incriminate himself. Specifically, while 

stepfather was speaking to Dougoud at the start of the call, Dougoud stated: “Here 

I am, this big tough guy, getting into fights and drinking, this that and the other.” 

(Emphasis added.)

Dougoud objected. At the ensuing bench conference, he argued that 

his own statement about “getting into fights” was improper KRE 404(b) evidence. 

The circuit court sustained his objection. Moreover, it granted the only remedy 

Dougoud requested, which was a recess to review the remainder of the controlled 

call tape to ensure it included nothing more about his penchant for fighting.

We disagree that these three purported errors, taken collectively with 

what has previously been discussed, amounted to cumulative error warranting a 

mistrial. We begin with the first two. Opening and closing arguments are just that 

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

Because opening and closing arguments are not evidence, the prosecutor’s 
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comments during those arguments fall outside the scope of KRE 404(b), which by 

its plain terms prohibits the use of evidence of other crimes, wrongs, or acts to 

prove a propensity to commit some specific act. Here, the circuit court prefaced 

both the opening and closing argument segments of the trial by explaining to the 

jury that arguments of counsel were not evidence, and that they were not to be 

taken as such.

Regarding the Commonwealth’s statement during opening arguments 

regarding Dougoud being “a badass,” the prosecutor explained during her later 

comments, without objection, that the evidence would reflect Dougoud was 

formerly in the military; that his friends believed he was in special forces and was 

a sniper; that he frequently carried a sidearm and was familiar with firearms; that 

he could “hold his own”; and that “he’s not someone you messed around with.” 

To the extent that the prosecutor’s characterization of Dougoud as “a badass” was 

an expression of what she believed those evidentiary details reflected, a prosecutor 

may generally state what he or she believes from the evidence. “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). “A prosecutor may comment on tactics, may comment on evidence, 

and may comment as to the falsity of a defense position.” Slaughter, 744 S.W.2d 

at 412. Apart from that, the circuit court also admonished the jury to disregard the 
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prosecutor’s “badass” comment. And, as before, Dougoud makes no argument that 

the circuit court’s admonition was insufficient; or that the jury was unable to 

follow the admonition due to the applicability of either of the two exceptions 

discussed in Carson, 621 S.W.3d at 450.

Regarding the Commonwealth’s statement during closing arguments 

that Dougoud had “killed before,” the Commonwealth had already prefaced that 

detail – prior to Dougoud’s objection – by stating it derived from “what you heard 

from [victim] on the stand.” Nevertheless, following Dougoud’s objection, the 

circuit court granted Dougoud all the relief he requested, directing the prosecutor 

to provide the jury with further clarification. Afterward, the Commonwealth once 

again explained that whether Dougoud had killed was not a proven fact, and that 

victim’s understanding on that point solely derived from what he had testified 

Dougoud had told him. In short, the Commonwealth followed the circuit court’s 

directive to Dougoud’s apparent satisfaction, and it was abundantly clear that 

victim’s testimony was the source of any valid evidence indicating Dougoud had 

killed in the line of duty. We see no real question of undue prejudice.

Lastly, with respect to Dougoud’s recorded statement about “getting 

into fights,” we cannot say that, taken in isolation, this brief statement raised any 

real question of prejudice; indeed, Dougoud did not request any admonition in this 

respect, and he was apparently satisfied when the circuit court granted him all the 
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relief he requested due to the statement. In sum, none of these purported 

individual errors themselves or cumulatively were substantial and Dougoud 

received all the relief to which he was entitled through admonishments and 

clarifications. Thus, reversal is not warranted due to cumulative error.

CONCLUSION

We have addressed the breadth of Dougoud’s appellate arguments. 

Finding no error, we affirm his conviction and sentence by the Campbell Circuit 

Court.

DIXON AND MCNEILL, JUDGES, CONCUR IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Steven Nathan Goens

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

James Havey

Assistant Attorney General

Frankfort, Kentucky