IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION 

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
,i5uprrtur Gurf of 

2013-SC-000446-MR 

RENDERED: OCTOBER 23, 2014 

T TO BE PUBLISHED 

11'1_ 

STEPH6N SLONE 

DAT \\"'‘:\tk 

APPELLANT 

ON APPEAL FROM PERRY CIRCUIT COURT 

V. HONORABLE WILLIAM ENGLE III, JUDGE 

NO. 12-CR-00220 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Stephon Slone, appeals from a judgment of the Perry Circuit 

Court convicting him of fifst-degree rape and of being a second-degree 

persistent felony offender. As a result of these convictions Appellant was 

sentenced to twenty years' imprisonment. 

As grounds for relief Appellant contends that (1) he was entitled to a 

directed verdict of acquittal on the rape charge; (2) he did not receive a fair trial 

because of prosecutorial misconduct; (3) the trial court's failure to declare a 

mistrial in response to the Commonwealth's discovery violations produced a 

manifest injustice; (4) he was denied the right to present his defense when the 

trial court refused to permit him to introduce into evidence a juvenile court 

petition filed against the victim; and (5) the trial court erroneously permitted 

the Commonwealth to introduce evidence concerning his prior drug use. 

For the reasons stated below, we affirm. 
I. FACTUAL AND PROCEDURAL BACKGROUND 

Appellant and his girlfriend, Teresa, had lived together with her son and 

her daughter, "Helen," as a family household for over a decade when for a few 

months in 2011, Teresa was incarcerated. Helen was fourteen years old. 

Appellant was thirty. 

Several weeks after her mother's release, Helen made a 911-call to report 

that Appellant had raped her three times. When interviewed later that day, 

Helen told Kentucky State Police detective Chris Collins that she had been 

raped only once. She also told a child welfare worker that she had been raped 

only once, and she made the same allegation when she testified before the 

grand jury. 

As a result of Helen's allegation, Appellant was indicted on one count of 

first-degree rape by forcible compulsion, KRS 510.040(1)(a), and second-degree 

persistent felony offender status. 

Appellant denied the charge of rape, and he asserted at trial that Helen 

had invented the allegation as retaliation against him because he had objected 

to her romantic involvement with an eighteen-year old boy. Contrary to her 

earlier statements, Helen testified at trial that Appellant had raped her on 

many occasions. The jury returned a guilty verdict and judgment was entered 

as noted above. On appeal, Appellant raises five grounds for reversal. 

1Helen is a pseudonym we have used to protect the privacy of the minor 

involved. 

2 
II. SUFFICIENCY OF THE EVIDENCE 

Appellant first contends that he was entitled to a directed verdict on the 

first-degree rape charge. Our standard for review of such claims is well 

established in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). On 

appellate review, the reviewing court may only direct a verdict "if under the 

evidence as a whole, it would be clearly unreasonable for a jury to find guilt." 

Id. at 187. See also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) 

("The trial court must draw all fair and reasonable inferences from the evidence 

in favor of the [Commonwealth], and a directed verdict should not be given 

unless the evidence is insufficient to sustain a conviction."). 

To convict on first-degree rape by forcible compulsion, the 

Commonwealth must show that the accused engaged in sexual intercourse 

with another person, without that person's consent, by using "physical 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 [KRS 

Chapter 510]." KRS 510.010(2). Upon review of the record, we are satisfied 

that the Commonwealth met that burden. Sufficient evidence was presented at 

trial to support a reasonable juror's belief that Appellant engaged in conduct 

that met the statutory standard for first-degree rape. 

Helen testified that Appellant entered her bedroom, told her to lie down 

on her bed, put his hands around her throat, and sexually penetrated her with 

his penis against her will. She testified that afterward, Appellant threatened 

3 
that he would kill her, her mother, her brother, and himself if she told anyone 

what had happened. Helen testified that Appellant's act caused her pain and 

vaginal bleeding. In addition, testimony provided by sexual assault nurse 

examiner Alicia Cook established that there was physical evidence to support 

the allegation. Cook testified that her physical examination of Helen revealed 

indications of trauma to the victim's vaginal area, including a tear on the 

posterior fourchette, which despite the intact hymen, could have been the 

result of penile penetration. The injury to the victim's genital area supports the 

allegation of forced sexual activity. 

Appellant argues that the evidence tending to establish his guilt was so 

convincingly negated by exculpatory evidence that, as a whole, the proof was 

more consistent with his innocence than his guilt, and therefore, the finding of 

guilt was clearly unreasonable under the Benham and Sawhill standard. He 

cites testimony which showed that he had a "father-daughter" relationship with 

Helen; Helen's inconsistent statements regarding the number of times she had 

been raped; her delay in reporting the rapes; and the fact that she only 

reported the rapes while staying with a friend. He also cites evidence casting 

doubt upon Helen's credibility, including her motive to fabricate the charge 

because Appellant objected to her relationship with an eighteen-year old boy 

and her lies to conceal her relationship with the boy. Appellant also contends 

that because the victim cried and was emotional during her testimony that the 

jury's verdict was a product of passion and prejudice brought about by the 

victim's poignant testimony. 

4 
We disagree with Appellant's position. It is well established that a jury is 

free to believe the testimony of one witness over the testimony of others. See 

Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky. App. 1977). In ruling 

upon Appellant's motion, the trial court was required to construe conflicting 

evidence in the light most favorable to the Commonwealth. Benham, 816 

S.W.2d at 187. The testimony of a single witness is enough to support a 

conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky. 2005) 

(citing LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky. 1962)). 

Further, matters of credibility and of the weight to be given to a witness's 

testimony are solely within the province of the jury. An appellate court cannot 

substitute its judgment on such matters for that of the jury. Brewer v. 

Commonwealth, 206 S.W.3d 313, 319 (Ky. 2006) (citing Commonwealth v. 

Jones, 880 S.W.2d 544, 545 (Ky. 1994)). Therefore, we may not simply reject 

the victim's testimony and instead choose to believe Appellant's version 

because "[d}etermining the proper weight to assign to conflicting evidence is a 

matter for the trier of fact and not an appellate court." Washington v. 

Commonwealth, 231 S.W.3d 762, 765 (Ky. App. 2007) 2 (citing Bierman v. 

Klapheke, 967 S.W.2d 16, 19 (Ky. 1998)). 

Based upon the evidence as a whole, and upon viewing that evidence in 

the light most favorable to the verdict, we are constrained to conclude that it 

was not unreasonable for a jury to believe that Appellant raped the victim by 

2Overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky. 

2010) (reversed and remanded by Kentucky v. King, 131 S.Ct. 1849 (2011)). 

5 
forcible compulsion. Accordingly, the trial court did not err in denying 

Appellant's motion for a directed verdict on the first-degree rape charge. 

III. PROSECUTORIAL MISCONDUCT ISSUES 

Appellant next argues that he was denied a fair trial becauSe the 

prosecutor persistently and deliberately engaged in misconduct. Specifically 

Appellant contends that prosecutorial misconduct occurred when the 

prosecutor: (1) accused the defense of fabricating evidence, of having its 

witnesses lie on the stand, of the defense witnesses collaborating with one 

another about their testimony, and accusing defense counsel of lying; (2) failed 

to make timely disclosure of the victim's inconsistent allegation of multiple 

rapes; 3(3) failed to make timely disclosure of Alicia Cook's medical report; 4 

(4) accused defense counsel of fabricating evidence and lying to the trial court 

in connection with a screenshot of the victim's Facebook page; (5) implied that 

witnesses for the defense were testifying from a "script" prepared by defense 

counsel and the victim's mother; (6) accused defense counsel during crossexamination of the victim of "being argumentative and badgering this little girl"; 

(7) stated rhetorically aloud, "That's sad, you know that," in response to the 

victim's testimony that she could not trust anyone; (8) during a recess 

approached in an intimidating manner a sixteen-year old witness without the 

witness's parents being present, which Appellant claims was an attempt to 

3This allegation of error was clearly preserved for appellate review and is 

discussed in the following section of this opinion. 

4This allegation of error was clearly preserved for appellate review and is 

discussed in the following section of this opinion. 

6 
intimidate the witness; and (9) knowingly asked improper questions and then 

responded to trial counsel's objection by chuckling and withdrawing the 

improper question. 

The Commonwealth responds that, with two exceptions, none of the 

above allegations were preserved for appellate review by a contemporaneous 

objection at trial. 5To rebut the claim of inadequate preservation, Appellant 

notes that his brief cited to nineteen points in the video record where he 

objected to the prosecutor's misconduct. However, Appellant merely provided a 

list of citations to the record without indicating how any particular point 

relates to any particular allegation of misconduct. CR 76.12(4)(c)(v) requires 

the argument in support of each claim to have "ample supportive references to 

the record and citations of authority pertinent to each issue of law and . . . at 

the beginning of the argument a statement with reference to the record 

showing whether the issue was properly preserved for review and, if so, in what 

manner." Appellant's collage of citations to the video record without correlating 

them to a specific issue does not comply with 76.12(4)(c)(v). When an appellate 

advocate fails to abide by this rule our options are: (1) to ignore the deficiency 

and proceed with the review; (2) to strike the brief or its offending portions, CR 

76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice 

only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). 

Here, we employ the third option and examine Appellant's argument of 

prosecutorial misconduct for manifest injustice only. "Where there was no 

5See n. 3 and n. 4. 

7 
objection [to prosecutorial misconduct], we will reverse only where the 

misconduct was flagrant and was such as to render the trial fundamentally 

unfair." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). 

Generally, Appellant's claims of prosecutorial misconduct consist of 

demeaning comments that tend to degrade Appellant's case and his witnesses, 

insinuations of a defense effort to present false testimony at trial, and attempts 

to sway the jury with undue sympathy for the victim. Upon review, we are 

unpersuaded that these tactics, individually or cumulatively, resulted in a 

manifest injustice or rendered the trial fundamentally unfair. RCr 10.26. 

"Manifest injustice" requires showing a probability of a different result or error 

so fundamental as to threaten a defendant's entitlement to due process of law, 

i.e., the error so seriously affected the fairness, integrity, or public reputation of 

the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. 

Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006). While we may find some of the 

prosecutor's behavior at trial to be offensive, we cannot say that Appellant is 

entitled to relief under the manifest injustice standard. 

IV. DISCOVERY VIOLATION ISSUES 

Appellant next claims that he was deprived of a fair trial because the 

Commonwealth failed to make timely disclosure of exculpatory evidence 

contained in (1) the medical report prepared by Alicia Cook in connection with 

her physical examination of Helen; and (2) Helen's prior statements that 

Appellant had raped her on multiple occasions. 

8 
Appellant frames this issue as violations of Brady v. Maryland, 373 U.S. 

83 (1963). Under Brady and its progeny, a defendant's due process rights are 

violated when the prosecution fails to disclose material exculpatory evidence to 

the defense, regardless of the prosecution's good or bad faith. Id. at 87; United 

States v. Agurs, 427 U.S. 97, 107 (1976). Impeachment evidence is included 

within the scope of exculpatory evidence that is subject to Brady. United 

States v. Bagley, 473 U.S. 667, 676 (1985). 

However, the disclosure requirement applies only to "those cases in 

which the government possesses information that the defense does not." 

Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002). Further, "Brady 

applies only to the discovery, after trial, of information which had been known 

to the prosecution but unknown to the defense."' Id., (quoting Agurs, 427 U.S. 

at 103) (emphasis added). In other words, Brady and its progeny address 

situations in which a defendant goes through a trial unaware of the availability 

of exculpatory information withheld by the prosecution. Here however, 

Appellant became aware of Cook's report and the victim's prior inconsistent 

statement either before or during his trial, and so Brady is not directly 

implicated. Instead, RCr 7.24 is the controlling authority which will guide our 

review of the issues presented in this argument. This rule broadly requires, 

among other things, the prosecution to provide a defendant with disclosure of 

information in its possession which is material to his defense. RCr 7.24(9) 

provides the remedy: 

9 
If at any time during the course of the proceedings it is brought to 

the attention of the court that a party has failed to comply with 

this rule or an order issued pursuant thereto, the court may direct 

such party to permit the discovery or inspection of materials not 

previously disclosed, grant a continuance, or prohibit the party 

from introducing in evidence the material not disclosed, or it may 

enter such other order as may be just under the circumstances. 

"[A] trial court generally has broad discretion under RCr 7.24(9) to impose an 

appropriate sanction for a discovery violation." Jones v. Commonwealth, 237 

S.W.3d 153, 157 (Ky. 2007). With these principles in mind we now address the 

two areas of alleged discovery violations raised by Appellant. 

A. Medical Examination Report 

In connection with the rape investigation, Cook examined Helen and 

prepared a report that was subject to the trial court's pre-trial discovery order. 

Despite earlier claims of the Commonwealth that no medical report existed, one 

week before the trial, defense counsel was given a copy of Cook's three-page 

report. 6The late disclosure prompted Appellant to move to suppress the report 

and to prohibit Cook from testifying. 

To resolve the pending motion, and apparently to ascertain the tenor of 

Cook's anticipated testimony, on the second day of trial the court allowed the 

parties to examine Cook outside the presence of the jury. It was at that point 

that Cook revealed a fact she had omitted from the written report: the victim's 

hymen was intact and undamaged, although other indications of vaginal 

trauma were present. Cook agreed that her observations were consistent with 

6The Commonwealth asserts that it was unaware of the report's existence until 

a week before the trial at which time it promptly supplied the report to defense 

counsel. 

10 
Helen's claim of being raped once. Cook further admitted that the intact 

hymen made it possible that Helen was a virgin and unlikely that she had been 

raped on multiple occasions as she claimed at trial. 

After Cook's in camera testimony, the Commonwealth elected not to call 

her as a witness. Appellant promptly withdrew his objection to Cook's 

testimony and instead elected to call her as a witness for the defense. He now 

argues that these late disclosures prevented him: 1) from getting his own 

expert on the possibility of rape despite the intact hymen; 2) from examining 

the jury on the subject during the voir dire stage; and 3) discussing those facts 

in his opening statement. Instead, defense counsel was left between a rock 

and hard place: he could ask for a mistrial and a continuance to better prepare 

a defense based upon the recent disclosure, which would further prolong 

Appellant's pretrial incarceration; or, he could make the best of the evidentiary 

turn by using the newly discovered information to his best advantage. 

Appellant chose the latter. 

We appreciate the difficult and stressful challenges that trial attorneys 

face in even the best of circumstances, and we recognize the difficulties 

presented when sudden disclosures change the evidentiary landscape. When 

late disclosures are caused by an opposing party, whether from excusable 

neglect or deliberate deception, we must be attentive to remedy any injustice 

that results. But, by parsing out the particulars of Appellant's argument, we 

come to the conclusion that no violation occurred here. 

11 
The central point of Appellant's claim is that he was prejudiced because 

he was not told prior to trial that the physical examination of the victim 

disclosed an intact hymen. There is, however, no indication that the 

Commonwealth was aware of the fact any sooner than Appellant. The 

Commonwealth claims that it, too, was caught off-guard when, on the second 

day of the trial, Cook first mentioned it. The Commonwealth's sudden decision 

not to call Cook as its witness tends to support that claim of ignorance. The 

rules for discovery in criminal cases do not require the Commonwealth to 

disclose information it does not have. RCr 7.24. To establish a due process 

violation based upon a failure to disclose exculpatory information, it must be 

shown that the prosecutor, in good faith or bad, knew of the evidence and 

failed to disclose it. Nunley v. Commonwealth, 393 S.W.3d 9, 13 (Ky. 2013). 

The prosecution was under no obligation or affirmative duty to acquire that 

information. Appellant's claim that he was prejudiced by a late disclosure of 

the medical report is unavailing because the exculpatory evidence he 

complains about was not in the written report. Having the report sooner would 

not have prevented the dilemma he faced at trial. 

In summary, we find no grounds upon which Cook's testimony or the 

late disclosure of her medical report would warrant reversal. Under the 

circumstances before us, we are simply unable to discern any error in the trial 

court's rulings relating to the medical report or to Cook's testimony. 

12 
B. Prior Inconsistent Statements 

As previously noted, Helen made conflicting statements about the 

number of times Appellant had raped her. She told the 911 operator that it 

happened' "like three times." On several other occasions before trial, including 

in her grand jury testimony, she said Appellant had raped her only one time. 

At trial, she testified that Appellant had raped her so many times in fact that 

she lost count. 

At trial, the Commonwealth conceded that it had known for several 

weeks prior to trial that Helen had made numerous inconsistent statements 

about the number of times Appellant had raped her. Based upon the failure to 

disclose that information prior to trial, Appellant moved for a mistrial. The trial 

court agreed that the prosecution should have disclosed that information, but 

it nevertheless denied Appellant's motion. The trial court reasoned that 

Appellant was aware of Helen's statement to the 911 dispatcher and therefore 

was on notice prior to trial that the victim had previously claimed that 

Appellant had raped her more than one time. 

We agree with the trial court. Under the present circumstances, where 

Appellant was aware of and was able to impeach the witness on her 

inconsistent statements, the failure of the Commonwealth to disclose all of the 

known occasions upon which the victim made similar inconsistent claims did 

not result in a manifest necessity for a mistrial. Winstead v. Commonwealth, 

327 S.W.3d 386, 402 (Ky. 2010) (A party must make a clear showing of 

"manifest necessity" for a mistrial, and we review a trial court's denial of a 

13 
motion for a mistrial for an abuse of discretion). Appellant was able at trial to 

impeach the victim's testimony by cross-examining her upon her multiple prior 

inconsistent statements that there had been only one sexual assault. A 

manifest necessity occurs only when the error is "of such character and 

magnitude that a litigant will be denied a fair and impartial trial and the 

prejudicial effect can be removed in no other way [except by grant of a 

mistrial]." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). While 

the Commonwealth's failure to disclose all of the known occasions upon which 

the victim made inconsistent statements relevant to the crime was a violation 

of RCr 7.24, the error did not result in the level of prejudice required to 

establish a manifest necessity to terminate the proceedings. 

In summary, we are unpersuaded that the delayed production of the 

medical examination report and the victim's inconsistent statement were errors 

such as would require the reversal of Appellant's conviction and sentence. 

V. EXCLUSION OF JUVENILE COURT PETITION AGAINST VICTIM DID 

NOT DEPRIVE APPELLANT OF HIS RIGHT TO PRESENT A DEFENSE 

Appellant next contends that the trial court erred by prohibiting him 

from introducing into evidence a juvenile court petition relating to Helen that 

was filed by her mother. The petition charged that Helen was "beyond control" 

of her parents because she was not following the rules of household and was 

attempting to date an eighteen-year old boy against her parents' will. The trial 

court ruled that the juvenile court pleading could not be introduced into 

14 
evidence because it was hearsay. On appeal, Appellant frames this argument 

as a denial of his "right to present a defense." 

The defense that Appellant sought to present was that Helen had 

fabricated the allegations against him as retaliation for his disapproval of her 

desire to date an older boy. The juvenile court petition asserted that "[Helen] 

will not obey the household rules, said juvenile has been communicating with 

over 18 years old [sic]; social workers have been investigated [sic] said case and 

requested that the family file beyond control." Appellant wanted to introduce 

the report to corroborate his claim that the victim had, indeed, been dating an 

older boy, thereby lending credence to his theory about her motive to lie about 

being raped. There is no doubt that the petition is an out-of-court statement 

that Appellant sought to use as evidence to prove the truth of the matters 

asserted in the petition. The statement was clearly hearsay. KRE 801(c). 

Under the United States Constitution and the Kentucky Constitution, an 

accused has a right to present a complete and meaningful defense. Brown v. 

Commonwealth, 313 S.W.3d 577, 624-25 (Ky., 2010). "An exclusion of evidence 

will almost invariably be declared unconstitutional when it significantly 

undermine[s] fundamental elements of the defendant's defense." Beaty v. 

Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003) (citation and internal 

quotation omitted). But the right to present a defense does not abrogate the 

rules of evidence. "[T]he defendant's interest in the challenged evidence must 

be weighed against the interest the evidentiary rule is meant to serve, and only 

if application of the rule would be arbitrary in the particular case or 

15 
disproportionate to the state's legitimate interest must the rule bow to the 

defendant's right." McPherson v. Commonwealth, 360 S.W.3d 207, 214 (Ky. 

2012) (citations omitted); Newcomb v. Commonwealth, 410 S.W.3d 63, 85-86 

(Ky. 2013). 

In weighing Appellant's evidentiary interest in the juvenile court pleading 

against the jurisprudential interests served by the hearsay rule, we are 

satisfied that the trial court's application of the hearsay rule was neither 

arbitrary, nor was it disproportionate to the state's legitimate interest in the 

enforcement of this most basic and fundamental rule of evidence. Moreover, 

since the evidentiary content of the juvenile court document that Appellant 

wanted to introduce consisted entirely of statements made by Helen's mother, 

Appellant could have simply called her as a witness and examined her on the 

subject, thereby obtaining the same evidence in a manner that was consistent 

with, not in derogation of, our rules of evidence. 

In the alternative, Appellant now asserts for the first time, that the 

evidence was admissible under the exception to the hearsay rule for business 

and/or public records exception. See Combs v. Stortz, 276 S.W.3d 282, 295 

(Ky. App. 2009) ("KRE 803(6), (8), and (10) provide hearsay exceptions for 

records which are maintained by businesses and public agencies. Those rules 

require that minimal foundation be laid for the introduction of such records 

when self-authenticated under KRE 902.") 

Appellant failed to assert this ground for admissibility at trial, and so 

may not raise this theory for the first time on appeal. See Kennedy v. 

16 
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds 

by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). 

Moreover, Helen's brother testified that Helen had animosity toward 

Appellant because of his opposition to her boyfriend, and that she had 

threatened to have Appellant put in jail if she was not allowed to date. 

Furthermore, a juvenile court worker testified that the beyond-parental-control 

petition had been filed. Consequently, we are satisfied that Appellant was not 

deprived of the opportunity to present his defense. 

VI. EVIDENCE OF APPELLANT'S PAST DRUG USE 

On direct examination, and not in response to the question posed by the 

prosecutor, Helen spontaneously testified that she had on occasion purchased 

illegal drugs for Appellant. Appellant objected and moved for a mistrial. The 

trial court overruled the objection based upon the rationale that the 

information was admissible under KRE 404(b)(2). As a follow up, Helen, was 

then permitted to testify that Appellant used drugs every day. 

KRS 404(b) prohibits the admission of evidence of other crimes, wrongs, 

or acts to prove the character of a person in order to show action in conformity 

therewith. An exception to this general rule is codified in KRE 404(b)(2) such 

that prior bad act evidence may be introduced if it is "so inextricably 

intertwined with other evidence essential to the case that separation of the two 

(2) could not be accomplished without serious adverse effect on the offering 

party." As Professor Lawson points out, the words of KRE 404(b)(2) 

("inextricably intertwined with other evidence essential to the case") "are 

17 
designed to be flexible enough to permit the,state to present a complete and 

realistic picture of the crime committed by the defendant, including necessary 

context . . . and perspective." Robert G. Lawson, The Kentucky Evidence Law 

Handbook, § 2.25[4][b] (4th ed. 2003). 

One of the accepted bases for the admissibility of evidence of other 

crimes arises when such evidence "furnishes part of the context of 

the crime" or is necessary to a "full presentation" of the case, or is 

so intimately connected with and explanatory of the crime charged 

against the defendant and is so much a part of the setting of the 

case and its "environment" that its proof is appropriate in order "to 

complete the story of the crime on trial by proving its immediate 

context [ 1." 

Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994); see also Webb 

v. Commonwealth, 387 S.W.3d 319 (Ky. 2012). 

The Commonwealth argues that the evidence was properly admitted 

because its overall theory of the case was, that during the period when the rape 

occurred Appellant exercised an extraordinary level of "domination and control" 

over the victim and the rest of the household. In this vein other evidence was 

elicited to the effect that Appellant had the windows of the home boarded; 

would not allow the victim to leave the house; that the victim's brother usually 

stayed away from the house; that Appellant beat the victim and Appellant's 

mother; that the victim's mother would lie to social services about the beatings; 

and that Appellant would go looking for her if she was delayed in returning 

home from school. Thus, the trial court reasoned that having Helen buy drugs 

was part and parcel to Appellant's "domination and control" over her during 

the time of the sexual assault. 

18 
The standard of review for a trial court's evidentiary rulings is abuse of 

discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 

2000). The test for abuse of discretion is "whether the trial judge's decision 

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

Certainly there are situations in which a defendant's drug use is 

inextricably intertwined with the crime, and thus is admissible under KRE 

404(b)(2). But, this is not such a case. Helen's claim that Appellant used 

drugs every day and that he would send her to buy drugs was not necessary for 

a complete and realistic picture of the forcible rape, including any necessary 

context and perspective for it. There is simply no other evidence linking 

Appellant's drug use to the rapes. The Commonwealth's evidence of 

Appellant's role in the household generally established his "domination and 

control" over fourteen-year old Helen, and the evidence of his drug use did 

nothing to further prove the point. 

At most, the drug evidence was only marginally relevant under KRE 401 

and its probative value was substantially outweighed by the risk of undue 

prejudice. KRE 403; Bell v. Commonwealth, 875 S.W.2d 882, 888-91 (Ky. 

1994) (evidence of prior bad acts pursuant to KRE 404(b) should be excluded 

even if relevant and probative if its probative value is substantially outweighed 

by its prejudicial effect). Undue prejudice is most often found when there is a 

risk that the evidence "might produce a decision grounded in emotion rather 

than reason" or where the evidence "might be used for an improper purpose." 

19 
Kentucky Evidence Law at § 2.15[3][b]. See, e.g., Purcell v. Commonwealth, 149 

S.W.3d 382, 400 (Ky. 2004) 7(although prior acts of sexual voyeurism were 

relevant and probative, evidence should have been excluded because of its 

devastating effect in that it encouraged conviction because of "what [defendant] 

was, rather than what he did on the occasion of the charged offense."); Brown 

v. Commonwealth, 313 S':W.3d 577, 618 (Ky. 2010) (evidence is unduly 

prejudicial if it will induce the jury to decide a case based on an emotional 

response rather than the evidence presented.). 

The trial court abused its discretion by allowing Helen's testimony of 

Appellant's drug use to be admitted into evidence under KRE 404(b)(2). 

Nevertheless, the presentation of the evidence was fleeting and was not 

otherwise emphasized by the Commonwealth. Since it was not used as a 

prosecutorial tool and did not tend to bolster the victim's version'of events nor 

denigrate Appellant's denial, we are further persuaded that the error did not 

substantially sway the verdict and was, therefore, harmless. Winstead v. 

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). 

VII. CONCLUSION 

For the foregoing reasons, the judgment of the Perry Circuit Court is 

affirmed. 

All sitting. All concur. 

7Overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 

2010) 

20 
COUNSEL FOR APPELLANT: 

Karen Shuff Maurer 

Assistant Public Advocate 

Department Of Public Advocacy 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

Taylor Allen Payne 

Assistant Attorney General 

Office of Criminal Appeals 

Office of the Attorney General 

21