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THE ACTION. 
RENDERED: JUNE 15, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0539-MR

JOSEPH F. SMITH APPELLANT

ON APPEAL FROM MARION CIRCUIT COURT

V. HONORABLE SAMUEL TODD SPALDING, JUDGE 

NO. 19-CR-00259

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Marion County jury convicted Joseph F. Smith of sodomy in the first 

degree, criminal attempt to commit rape in the first degree, and terroristic 

threatening. Smith was sentenced to twenty years in prison. This appeal 

followed as a matter of right. See KY. CONST. § 110(2)(b). Having reviewed the 

record and the arguments of the parties, we affirm the Marion Circuit Court. 

I. BACKGROUND

On the night of November 3, 2019, J.A.1 was in her bedroom at her home 

which she shared with her adult son, Joey, and her sister, Roberta. Other 

people often stayed at the house, including Janice who was Roberta’s daughter 

1 We identify the victim by her initials for her privacy. We have also chosen to 

identify all witnesses by only their first names to assist in maintaining the privacy of 

the victim.
2

and J.A.’s niece. On the night of November 3, when J.A. went to bed, several 

people were present in the home, including Joey and two other individuals who 

often stayed at the house, April and Shoney. At some point, J.A. believed 

everyone had left her house, and she left her bedroom to use the restroom. She 

saw someone sitting in her living room. Although she did not know who it was 

at the time because she did not have her glasses on, she later determined it 

was Smith. Smith had dated her niece, Janice, for a period of time but had 

been banished from the house a few months prior, after getting into an 

argument with J.A.’s children. 

After J.A. returned to her bedroom, Smith knocked on her bedroom door 

and politely asked for a cigarette. She gave him one, and he thanked her. When 

he left the room, J.A. shut her bedroom door and locked it. Shortly thereafter, 

Smith forced his way into J.A.’s bedroom. He placed his hand on J.A.’s neck 

and unsuccessfully attempted to forcefully insert his penis into her vagina. J.A. 

became so nervous that she defecated on herself and Smith. This enraged 

Smith so much that he then forced J.A. to use her mouth to clean the 

defecation from his penis. At some point during these events, J.A. said, 

“Joseph, stop.” Smith responded, “I’m not going to stop until I get what I want.”

J.A. heard someone come into the house, and she began to yell for help. 

Roberta, a man named Jesus, and another woman had come back to the house 

to check on Roberta’s dog. When Roberta heard her sister’s shouts for help, she 

tried to open J.A.’s bedroom door, but Smith closed it in her face. Roberta tried 

again to open the door, and Smith again closed it in her face. Smith then told 
3

J.A. to tell Roberta to let him leave or else he would kill J.A. J.A. did as she was 

told, and Smith ran out of the house. By this time, Roberta was outside of the 

house seeking help. She saw Smith, although she did not identify him as such 

at trial, run around the house with his pants down. 

Roberta then rushed into J.A.’s bedroom and wrapped J.A. in a blanket.

J.A. had on no clothes other than a single sock. Feces was on the bed, blanket, 

sock, J.A.’s body, face, and in her hair. Roberta walked J.A. to the home of 

Santana, Roberta’s other daughter, who lived just behind J.A. Santana then 

drove J.A. to the emergency room at Spring View Hospital. In the emergency 

room, Nurse Karen Rogers and Doctor Stephen Grover collected samples from 

J.A. for a sexual assault evidence collection kit. A swab was taken of J.A.’s face 

because J.A. told Nurse Rogers that Smith had spit on her. This swab was 

eventually tested for saliva, and the results were presumptive positive. The 

swab was then DNA tested. The DNA test showed a mixture of DNA from two 

individuals. Once J.A.’s DNA was accounted for, Smith was shown to be a 

contributor to the mixture.

Lebanon Police Officer Daylon Moore responded to the hospital and took 

a statement from J.A. He then went to Santana’s house to speak with Roberta. 

He asked Roberta if she recognized or knew the name of the man who ran out 

of J.A.’s house. Roberta said that the man’s name was “Joseph Something,” 

but she did not know his last name.

Officer Moore was eventually able to identify Smith as the perpetrator 

and obtained an arrest warrant for him. Lebanon Police received a tip regarding 
4

Smith’s location, and Sergeant Henry Keene went there to attempt to locate 

and arrest Smith. Sergeant Keene arrived at the apartment with two other 

officers and knocked loudly on the door for two to three minutes while 

announcing they were with the Lebanon Police. No one answered the door. 

Apartment complex management eventually unlocked the door for the police to 

enter. They went inside, continuing to loudly announce that they were with the 

police department. No one responded. Police officers cleared the first floor of 

the apartment and proceeded to the second floor, continuing to announce their 

presence. They then found Smith on a bed in one of the bedrooms. He was 

arrested without further incident.

Smith was indicted on charges of sodomy in the first degree, burglary in

the first degree, sexual abuse in the first degree, intimidating a witness in the 

legal process, attempt to commit rape in the first degree, and being a persistent 

felony offender in the second degree. During trial, the intimidating a witness in 

the legal process charge was amended to terroristic threatening. The jury 

convicted Smith of sodomy in the first degree, criminal attempt to commit rape 

in the first degree, and terroristic threatening and recommended a sentence of 

twenty years in prison. The trial court sentenced Smith consistently with this 

recommendation. Additional facts are developed as necessary for our analysis.

II. ANALYSIS

Smith alleges that the trial court made several errors warranting reversal 

of his conviction. First, he argues that the trial court erred in admitting 

irrelevant, prejudicial evidence of his flight and pretrial silence. Second, he 
5

argues that the trial court erred in allowing the Commonwealth to improperly 

impeach Roberta and erred in refusing to grant a mistrial after Officer Moore 

misled the jury. Third, Smith argues that the trial court erred in allowing J.A. 

to identify him. Fourth, he argues that the trial court erred in admitting 

improper hearsay evidence. Finally, he argues that the trial court erred in 

denying his request to instruct the jury on the lesser included offense of sexual 

abuse. We address each allegation in turn.

A. Evidence of Flight and Pretrial Silence

Smith first argues that the trial court erred in admitting irrelevant, 

prejudicial evidence of his flight and pretrial silence. He asserts this occurred 

in three ways. First, he argues that the Commonwealth improperly used the 

fact that he did not answer the door of the apartment when the police knocked 

and announced themselves as evidence of flight. Second, he argues that 

Sergeant Keene improperly commented on his silence when the police were in 

the apartment. Finally, he argues that evidence of the man fleeing from J.A.’s 

house after committing the sodomy should not have been used as evidence of 

his guilt.

This Court reviews a trial court’s decision on the admission of evidence 

for an abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 

2007); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). “The test for 

abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire 
6

& Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing English, 993 

S.W.2d at 945). 

Smith argues that evidence that he did not answer the door when police 

knocked and did not respond when they announced themselves once inside of 

the apartment was improperly used as evidence of his guilt. He argues that his 

failure to respond is not the same as flight, which can be used as evidence of

guilt, because the police’s attempt to serve the warrant was not spatially or 

temporally close to the crime and because there was no proof that he knew of 

the allegations that had been made against him. Smith argues that this 

evidence was not relevant and even if it was relevant, its probative value was 

substantially outweighed by its potential for prejudice.

Under Kentucky Rule of Evidence (KRE) 401, “‘Relevant evidence’ means 

evidence having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” Generally, “[a]ll relevant evidence is 

admissible” unless prohibited by another rule, statute, or the Constitutions of 

Kentucky or the United States. KRE 402. Under KRE 403, “[a]lthough relevant, 

evidence may be excluded if its probative value is substantially outweighed by 

the danger of undue prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, or needless presentation of cumulative 

evidence.”

This Court has long held that “proof of flight to elude capture or to 

prevent discovery is admissible because ‘flight is always some evidence of a 
7

sense of guilt.’” Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003) 

(quoting Hord v. Commonwealth, 227 Ky. 439, 13 S.W2d 244, 246 (1928)). This 

rule is “based on the inference that the guilty run away but the innocent 

remain.” Id. at 219. Further, “evidence of flight is admissible because it has a 

tendency to make the existence of the defendant's guilt more probable: a guilty 

person probably would act like a guilty person.” Id.

Smith argues that Rodriguez requires that the flight be “both spatially 

and temporally close to the crime charged.” Id. However, although we noted in 

Rodriguez that the defendant’s theft of a truck and subsequent flight in the 

stolen truck was close in time and space to the commission of the robbery 

offense with which he was charged, we explained that what was “more 

important[]” was that he likely 

stole the truck to avoid the officers and not because he desired the 

truck itself. In other words, there was evidence to infer that 

Rodriguez stole the truck as a means to escape arrest for the 

robbery, rather than as an end in itself. Thus, the evidence was 

relevant and admissible subject to the balancing test of KRE 403. 

Id. Thus, the proximity in time and space was relevant to our analysis, but not 

determinative. Further, Smith has pointed us to no other case where we have 

held that proximity in time and space is required. 

In Cherry v. Commonwealth, we explained that “evidence of a defendant’s 

flight or attempts to avoid arrest has long been admissible under Kentucky 

law ‘to show a sense of guilt because flight is always some evidence of a sense 

of guilt.’” 458 S.W.3d 787, 795 (Ky. 2015) (emphasis added) (quoting Doneghy 

v. Commonwealth, 410 S.W.3d 95 (Ky. 2013)). In this case, a reasonable 
8

inference that could be drawn from Smith’s failure to answer the door or 

respond when police knocked on the door and entered the apartment, while 

loudly announcing their presence, is that Smith was “attempt[ing] to avoid 

arrest.” Id. This attempt to avoid arrest was then relevant as evidence of guilt. 

Thus, the trial court did not abuse its discretion in admitting this evidence. 

Smith next argues that the Commonwealth improperly used his prearrest silence, specifically his failure to answer the door or respond to officers

upon entry to the apartment, as evidence of his guilt in violation of the Fifth 

Amendment to the United States Constitution. A defendant has a Fifth 

Amendment right to remain silent that extends to the pre-arrest phase of a 

case, and “an invocation of that right by remaining silent cannot be used 

against him.” Moss v. Commonwealth, 531 S.W.3d 479, 487 (Ky. 2017). 

However, “official compulsion is required for the privilege to attach.” Baumia v. 

Commonwealth, 402 S.W.3d 530, 538 (Ky. 2013). 

In Baumia, we held that the defendant “was not officially compelled to 

incriminate herself” when an officer asked her to submit to a breathalyzer test 

after suspecting she had been drinking. Id. at 538–39. We further held that 

while the fact of the defendant’s refusal to submit was admissible, her entire 

statement explicitly invoking her right to remain silent was not. Id. at 539. 

In this case, there was no official compulsion for Smith to incriminate 

himself. First, he was not compelled to do anything. Second, merely answering 

the door or responding to police announcing their presence would not, in and 
9

of itself, be incriminatory. Therefore, the trial court did not abuse its discretion 

in admitting this evidence. 

Finally, Smith argues that the Commonwealth improperly argued in 

closing argument that the man’s running from the house after the sodomy was 

evidence of Smith’s guilt. He argues that the man running from the house 

would only be evidence of Smith’s guilt if there was evidence that Smith was 

the man seen running. He asserts that there was no proof of this.

We have held on countless occasions that “[c]ounsel has wide latitude 

during closing arguments. . . . The longstanding rule is that counsel may 

comment on the evidence and make all legitimate inferences that can be 

reasonably drawn therefrom.” Padgett v. Commonwealth, 312 S.W.3d 336, 350 

(Ky. 2010) (citations omitted). In this case, although Roberta could not identify 

Smith as the man who ran out of J.A.’s house while she was testifying, she had 

previously identified him as such to the police. Further, J.A. identified Smith as 

her attacker,2 and no testimony was elicited that anyone else was in the home 

when the crimes were committed. From this evidence, a “legitimate inference[]” 

could be drawn that Smith was the man who ran out of J.A.’s house. Thus, the 

Commonwealth’s closing argument was proper.

B. Roberta’s Identification of Smith

Smith next argues that the trial court erred in allowing the 

Commonwealth to impeach Roberta by playing a portion of Officer Moore’s 

2 We acknowledge that both of these identifications are challenged by Smith.

However, we find no error in the admission of either. See Subsections B and C.
10

body camera video in which Roberta identified Smith as the man who ran from 

J.A.’s house. Smith argues that the video was improper impeachment evidence 

for two reasons. First, he argues it was improper impeachment because 

Roberta’s statement in the video was not based on personal knowledge but 

instead was based on J.A.’s statement to her. Second, he argues it was 

improper impeachment evidence because Roberta could not remember making 

the statement to Officer Moore. Finally, Smith argues that the trial court 

should have granted his motion for a mistrial when Officer Moore incorrectly 

testified that Roberta identified the man she saw running from the house as 

“Joseph Smith.” We address each of these arguments.

During Roberta’s trial testimony, she was adamant that she did not see 

the face of the man who ran from J.A.’s house and could not identify him. Her 

testimony in this regard was clear. Because of this, the Commonwealth sought 

to impeach her with the statement she made to Officer Moore on the night of 

the incident. In the video of that interaction, Officer Moore can be heard asking 

Roberta, “Do you recognize him? Do you know his name?” Roberta then 

responded, “Joseph Something. I don’t know his last name.” At the bench 

conference to discuss the admission of this recording, Smith argued that in the 

video Roberta also told Officer Moore that she did not see anything. The 

implication, according to Smith, was that Roberta’s identification of Smith on 

the night of the incident was not based on her personal recognition of him but 

instead was based on information provided to her by J.A. The trial court 

decided to allow the Commonwealth to impeach Roberta with her prior 
11

inconsistent statement but also told Smith that he could play the portion of the 

interview where Roberta said she did not see anything. 

The trial court’s decision on the admission of evidence is reviewed for an 

abuse of discretion. Clark, 223 S.W.3d at 95; English, 993 S.W.2d at 945.

Under KRE 602, “A witness may not testify to a matter unless evidence is 

introduced sufficient to support a finding that the witness has personal 

knowledge of the matter. Evidence to prove personal knowledge may, but need 

not, consist of the witness’ own testimony.” Smith argues not that Roberta’s 

trial testimony was not based on her personal knowledge, but instead argues 

that Roberta’s statement to Officer Moore, which was used to impeach her 

credibility at trial, was not based on her personal knowledge. However, Smith 

only points to Roberta’s trial testimony as evidence that her prior statement 

was not based on personal knowledge. Despite the suggestion by the trial 

court, Smith did not play any additional portion of Roberta’s statement to 

Officer Moore during trial. 

As previously mentioned, Roberta’s testimony at trial was clear that she 

did not see the face of the person who ran from J.A.’s house and thus could not 

identify him. However, admission of a prior inconsistent statement is just 

that—admission of a prior statement that is different from the statement 

made at trial. There is nothing in the record before us, other than her trial 

testimony, that suggests Roberta’s statement to Officer Moore identifying the 

man who ran out of the house as “Joseph Somebody” was not based on her 

personal knowledge at the time. Because of this, there was no error in the 
12

admission of Roberta’s prior inconsistent statement based on the argument 

that it was not based on personal knowledge.

Smith also argues that the video recording was improper impeachment 

evidence because Roberta did not remember what she told Officer Moore on the 

night of the incident. Smith relies on Wiley v. Commonwealth, 348 S.W.3d 570 

(Ky. 2010) as support for his argument. In Wiley, we held that “the relevant 

inquiry in determining if a lack of memory is (or should be treated as) a prior 

inconsistent statement, is whether, within the context of the case, there is an 

appearance of hostility of the witness which is the driving force behind the 

witness’s claim that he is unable to remember the statement.” Id. at 578. Smith 

argues that because Roberta was not hostile to the Commonwealth, her 

inability to remember what she told Officer Moore is not inconsistent with what 

she did tell him.

What Smith fails to acknowledge, however, is that “[a] statement is 

inconsistent for purposes of KRE 801A(a)(1) whether the witness presently 

contradicts or denies the prior statement, or whether he claims to be unable 

to remember it.” Brock v. Commonwealth, 947 S.W.2d 24, 27 (Ky. 1997) 

(emphasis added) (citing Wise v. Commonwealth, 600 S.W.2d 470, 472 (Ky. 

App. 1978)). In this case, Roberta’s testimony at trial—that she did not know 

who came running out of the house—“presently contradict[ed]” her statement 

to the police that she knew or recognized the man as Joseph Something.3

3 Many of the cases on which Wiley relies involve witnesses who claim an 

inability to remember the entire underlying event, not just the content of their prior 
13

Further, we have previously held that a “trial judge has considerable discretion 

in determining whether testimony is ‘inconsistent’ with prior statements; 

inconsistency is not limited to diametrically opposed answers but may be found 

in evasive answers, inability to recall, silence, or changes of position.” Meece v. 

Commonwealth, 348 S.W.3d 627, 672 (Ky. 2011) (quoting United States v. 

Dennis, 625 F.2d 782, 795 (8th Cir. 1980)). The trial court did not abuse its 

“considerable discretion” in admitting Roberta’s prior inconsistent statement to 

Officer Moore.

Finally, Smith argues that the trial court erred in refusing to grant a 

mistrial when Officer Moore incorrectly testified that Roberta told him she 

recognized Joseph Smith as the person who ran from the house. Immediately 

after Officer Moore testified to this, Smith objected, and a bench conference 

ensued. Smith argued that Officer Moore testified to a fact not in evidence, as 

the recording of Roberta, which had already been played for the jury, clearly 

showed Roberta identified the man who ran out of the house as “Joseph 

Somebody” and not Joseph Smith. The Commonwealth agreed that in the 

recording Roberta identified the man as “Joseph Somebody.” Smith then moved 

for a mistrial, and the trial court denied that motion. When the Commonwealth 

resumed questioning Officer Moore, the Commonwealth immediately elicited 

testimony that Roberta actually said, “Joseph Somebody.”

statement, as in this case. See e.g., Wise v. Commonwealth, 600 S.W.2d 470 (Ky. App. 

1978); Manning v. Commonwealth, 23 S.W.3d 610 (Ky. 2000)
14

We have explained the circumstances under which a trial court should 

grant a mistrial as follows:

A trial court only declares a mistrial if a harmful event is of such 

magnitude that a litigant would be denied a fair and impartial trial 

and the prejudicial effect could be removed in no other way. Stated 

differently, the court must find a manifest, urgent, or real necessity 

for a mistrial. The trial court has broad discretion in determining 

when such a necessity exists because the trial judge is “best 

situated intelligently to make such a decision.” The trial court's 

decision to deny a motion for a mistrial should not be disturbed 

absent an abuse of discretion.

Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (footnotes omitted). 

In this case, the jury had already twice heard the recording of Roberta’s 

statement. Further, they heard Roberta repeatedly deny being able to identify 

the man who ran out of J.A.’s house. Finally, the Commonwealth corrected the 

error in Officer Moore’s testimony as quickly as it could. For these reasons, we 

cannot hold that the trial court abused its discretion in denying Smith’s motion 

for a mistrial.

C. J.A.’s Identification of Smith

Smith next argues that the trial court erred in allowing J.A. to identify 

him as her assailant because J.A.’s personal knowledge came not from her 

observations of the man in the room but instead from the person’s response 

when she said, “Joseph, stop.” He argues that J.A. based her ID on an 

improper adoptive admission that the man’s name was Joseph. We review 

alleged errors in the admission of evidence for abuse of discretion. Clark, 223 

S.W.3d at 95; English, 993 S.W.2d at 945. Smith acknowledges that this 
15

alleged error was not preserved and requests palpable error review under 

Kentucky Rule of Criminal Procedure (RCr) 10.26.

Under KRE 801A(b)(2), “[a] statement is not excluded by the hearsay 

rule, even though the declarant is available as a witness, if the statement is 

offered against a party and is . . . [a] statement of which the party has 

manifested an adoption or belief in its truth.” This rule provides for an 

exception to the usual hearsay rule which prohibits admission of out of court 

statements offered “to prove the truth of the matter asserted.” KRE 801, 802. 

Use of KRE 801A is only necessary if the statement being admitted is in fact 

hearsay which would otherwise be excluded. In this case, the statement 

admitted was not offered for “the truth of the matter asserted.” Thus, KRE 

801A does not apply.

The statement at issue is J.A.’s statement, “Joseph, stop,” which she 

made on the night in question. See Trigg v. Commonwealth, 460 S.W.3d 322, 

331 (Ky. 2015) (“[I]t is not the silence itself that constitutes the ‘statement’ to be 

admitted into evidence. The ‘statement’ that the rule admits into evidence is the 

audible expression of another person, ‘the declarant,’ whose statement the 

defendant heard and to which the defendant's silence ‘manifested an adoption 

or belief in its truth.’”) J.A.’s statement was not being offered for the truth of 

that statement; it was not offered to actually prove that Joseph was the man to 

whom J.A. was speaking. Instead, it was offered to explain why J.A. identified

Joseph as the man who sexually assaulted her. Although this difference is 

subtle, it is material to this analysis. Without there being hearsay, we need not 
16

determine if an exception to the hearsay rule applies. Accordingly, the trial 

court did not abuse its discretion in admitting J.A.’s identification of Smith as

her attacker.

D. Hearsay Evidence

Smith next argues that the trial court erred in admitting evidence of 

J.A.’s hearsay statement that “he spit on me.” He further argues that the 

admission of this evidence violated his rights under the Confrontation Clause. 

This issue is partially preserved and partially unpreserved. Smith requests

palpable error review for any portion of this issue that is unpreserved. The trial 

court’s decision to admit this evidence is reviewed for an abuse of discretion. 

Clark, 223 S.W.3d at 95; English, 993 S.W.2d at 945.

In addition to serving the arrest warrant on Smith, Sergeant Keene was a 

part of the chain of custody of the physical evidence in this case, as he was the 

evidence custodian for the Lebanon Police Department. He testified about the 

sexual assault evidence collection kit and the individual items included in that 

kit. As he was describing the swabs that were taken, he read the label on the 

face swab which said, in part, “He spit on her face.” Smith objected, and a 

bench conference was conducted. 

At the bench conference, Smith objected to the admission of both the 

label itself and the reading of the label on hearsay grounds, noting that J.A.

had not testified at trial that Smith had spit on her. Initially, Smith also asked 

for an admonition. The Commonwealth explained that it was offering this 

evidence both to impeach J.A. and to explain why Nurse Rogers took the face 
17

swab, as face swabs are not generally collected after a sexual assault. The trial 

court acknowledged that the label itself was “problematic” and would not be 

admitted into evidence. The trial court also excluded the statement itself, as 

there had not been any evidence presented yet that Smith had spit on J.A.’s 

face. The court then asked Smith what he wanted done, since Sergeant Keene 

had already testified to the statement. Smith explained that he did not want an 

admonition at that point, but that if the appropriate testimony was not elicited 

later in the trial, he would likely ask for an admonition at that time. Smith 

expressed a concern that an admonition would only draw more attention to the

inadmissible statement. The trial court then reserved ruling on an admonition. 

Smith did not request an admonition on this issue at any later point of the 

trial, and none was given.

After Sergeant Keene testified, Nurse Rogers testified. During her 

testimony, another bench conference was held regarding J.A.’s statement to 

Nurse Rogers that “he spit on me.” During this bench conference, the trial 

court ruled that no proper foundation under KRE 613 had been laid to 

introduce J.A.’s prior inconsistent statement. The trial court instructed the 

Commonwealth to re-call J.A. in order to directly ask her about her prior 

statement, and then the Commonwealth could re-call Nurse Rogers. 

The Commonwealth then did as instructed by the trial court. It called 

J.A. to testify and asked her specifically if she recalled telling Nurse Rogers that 

Smith had spit on her. J.A. testified that she told Nurse Rogers something 

similar, but that she would call it “slobbering” rather than “spitting.” The 
18

Commonwealth then re-called Nurse Rogers who testified that she took the face 

swab because J.A. told her Smith had spit on her face. Dr. Stephen Grover 

then testified to the same thing. The trial court admitted this evidence after 

finding that it was important for the medical professionals to explain why they 

had taken the face swab.

We first address Smith’s argument that the admission of J.A.’s out of 

court statement violated his Confrontation Clause rights. The Sixth 

Amendment’s Confrontation Clause provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” In this case, J.A. testified once and then was re-called 

to be questioned directly about her prior statement. Smith had an opportunity 

to confront and cross-examine her each time. Smith alleges that he was only 

able to confront her about her prior statement because the trial court 

erroneously allowed her to be re-called to testify. As we discuss below, the trial 

court did not abuse its discretion in allowing the trial court to re-call her. 

Accordingly, Smith’s Confrontation Clause rights were not violated.

We now move to Sergeant Keene’s testimony in which he read from the 

swab label which said, “He spit on me.” Smith objected to this testimony, and 

the trial court effectively sustained his objection. The trial court then asked 

Smith what remedy he wanted. Smith merely asked the trial court to note the 

issue and then explicitly stated that he did not want an admonition at that 

time. He stated he would request one later if he deemed it desirable. Smith 

never asked for an admonition regarding this testimony. We have previously 
19

held that “where an admonishment is sufficient to cure an error and the 

defendant fails to ask for the admonishment, we will not review the error.” 

Lanham v. Commonwealth, 171 S.W.3d 14, 28 (Ky. 2005). Thus, we will not 

review the allegation of error in Sergeant Keene’s testimony.

Smith next argues that the trial court should not have allowed J.A. to be 

re-called and to then be asked a leading question about her statement to Nurse 

Rogers. He further argues that J.A.’s prior statement to Nurse Rogers was not 

inconsistent with J.A.’s trial testimony because J.A. merely failed to mention it 

at trial, and thus J.A. was improperly impeached with the prior statement.

Under KRE 611(a), “the trial court has inherent authority to control the 

trial proceedings and . . . to control the mode of interrogation of witnesses.” 

Mullikan v. Commonwealth, 341 S.W.3d 99, 104 (Ky. 2011). It should exercise 

this control over both “the mode and order of interrogating witnesses and 

presenting evidence so as to . . . [m]ake the interrogation and presentation 

effective for the ascertainment of the truth.” KRE 611(a)(1). Given this broad 

authority, we cannot hold that the trial court abused its discretion in allowing 

the Commonwealth to re-call J.A. to testify about her prior statement. 

We further cannot hold that the trial court abused its discretion in 

allowing the Commonwealth to ask J.A. a leading question about the out of 

court statement. Although leading questions are generally not permitted during 

direct examination, they may be allowed as “necessary to develop the witness’ 

testimony.” KRE 611(c). In order to confront a witness with a prior statement, a 

party must be able to present that statement to the witness. Often the only way 
20

to accomplish this is to directly ask the witness if he or she remembers making 

the statement. That is what occurred in this case. Further, we have previously 

held 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) (citations 

omitted). In this case, the trial court did not abuse its discretion, and no 

“shocking miscarriage of justice resulted.” See id.

Finally, as we previously explained, a “trial judge has considerable 

discretion in determining whether testimony is ‘inconsistent’ with prior 

statements; inconsistency is not limited to diametrically opposed answers but 

may be found in evasive answers, inability to recall, silence, or changes of 

position.” Meece, 348 S.W.3d at 672 (quoting Dennis, 625 F.2d at 795). We 

cannot hold that the trial court abused its discretion in determining that J.A.’s 

prior statement to Nurse Rogers was inconsistent with her trial testimony in 

which she completely failed to mention that Smith spit or slobbered on her.

Next, Smith argues that the trial court erred in allowing Nurse Rogers to 

be re-called to testify to J.A.’s out of court statement in order to explain why 

Nurse Rogers took the face swab. Smith asserts that the reason the face swab 

was taken was not relevant. However, as the trial court found, it was important 

for the jury to understand why the face swab was taken and why it was tested 

for saliva and then for DNA. We cannot hold the trial court abused its 

discretion in concluding so.
21

Finally, Smith asserts that the probative value of J.A.’s out of court 

statement to Nurse Rogers was substantially outweighed by the danger of 

undue prejudice under KRE 403. Under KRE 403, relevant evidence “may be 

excluded if its probative value is substantially outweighed by the danger of 

undue prejudice.” However, KRE 403 “does not offer protection against 

evidence that is merely prejudicial in the sense that it is detrimental to a 

party’s case.” Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) 

(citations omitted). Instead, it prohibits “[e]vidence that appeals to the jury’s 

sympathies, arouses its sense of horror, provokes its instinct to punish, or 

otherwise may cause a jury to base its decision on something other than the 

established propositions in the case.” Richmond v. Commonwealth, 534 S.W.3d 

228, 232 (Ky. 2017) (quoting Butler v. Commonwealth, 367 S.W.3d 609, 615 

(Ky. App. 2012)). In this case, J.A.’s out of court statement did none of these 

things, and thus the trial court did not abuse its discretion under KRE 403 in 

admitting it. 

E. Lesser Included Offense Instruction

Smith next argues that the trial court erred in refusing to instruct the 

jury on sexual abuse in the first degree as a lesser included offense of sodomy 

in the first degree. This argument was preserved by Smith’s oral request for 

this lesser included offense instruction and the tendering of the requested 

instruction to the trial court. See RCr 9.54; Elery v. Commonwealth, 368 

S.W.3d 78, 89 (Ky. 2012). We review the trial court’s refusal to give a specific 
22

jury instruction for an abuse of discretion. Sergeant v. Schaffer, 467 S.W.3d 

198, 204 (Ky. 2015).

We review a trial court’s decision not to give the jury an instruction on a 

lesser offense under two principles:

(1) it is the duty of the trial judge to prepare and give instructions 

on the whole law of the case ... [including] instructions applicable 

to every state of the case deducible or supported to any extent by 

the testimony; and (2) although a defendant has a right to have 

every issue of fact raised by the evidence and material to his 

defense submitted to the jury on proper instructions, the trial 

court should instruct as to lesser-included offenses only if, 

considering the totality of the evidence, the jury might have a 

reasonable doubt as to the defendant's guilt of the greater offense, 

and yet believe beyond a reasonable doubt that he is guilty of the 

lesser offense.

Holland v. Commonwealth, 114 S.W.3d 792, 802 (Ky. 2003) (internal citations 

and quotation marks omitted). Sexual abuse in the first degree is a lesser 

included offense of sodomy in the first degree. Johnson v. Commonwealth, 864 

S.W.2d 266, 277 (Ky. 1993). Therefore, if the evidence supported it, Smith 

would have been entitled to an instruction on sexual abuse in the first degree. 

Smith argues that he is entitled to the instruction because the jury could 

have doubted that he was trying to penetrate her with his penis, as required for 

a conviction for sodomy, and instead believed that he merely rubbed her with

his penis, which would constitute sexual abuse. However, there was simply 

insufficient evidence of this presented for us to hold that the trial court abused 

its discretion in refusing to instruct on this offense. J.A.’s testimony was clear 

that Smith tried to insert his penis into her vagina but was unsuccessful. She 

testified that this made him angry, and that he said he was not going to leave 
23

until he got what he wanted. Dr. Grover also testified that he would usually use 

a speculum when taking the vaginal swab after a sexual assault, but that his 

attempts to insert the speculum caused J.A. great pain, and thus he took the 

swab without one. This supports J.A.’s testimony that Smith tried but was 

unsuccessful in inserting his penis into her vagina. No other testimony was 

offered to contradict hers. Accordingly, the trial court did not abuse its 

discretion in refusing to instruct the jury on the lesser included offense of 

sexual abuse, as the jury could not have had a reasonable doubt as to Smith’s 

guilt of sodomy and yet still believed beyond a reasonable doubt that he was 

guilty of sexual abuse.

III. CONCLUSION

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

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Kathleen Kallaher Schmidt

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Kristin Leigh Conder

Assistant Attorney General