RENDERED: FEBRUARY 12, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1526-MR

MICHAEL DUNGAN APPELLANT

APPEAL FROM PULASKI CIRCUIT COURT

v. HONORABLE DAVID A. TAPP, JUDGE

ACTION NO. 15-CR-00018

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, 

JUDGES.

TAYLOR, JUDGE: Michael Dungan, pro se, brings this appeal from a May 15, 

2019, order of the Pulaski Circuit Court denying a Kentucky Rules of Criminal 

Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment. We affirm. 

In 2016, Dungan was convicted upon the offenses of third-degree 

rape, incest, abuse of an adult, and of being a first-degree persistent felony 

offender. He sexually assaulted his step-daughter, who is wheelchair bound and 
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intellectually impaired. On May 13, 2016, the circuit court sentenced Dungan to a 

total of twenty-years’ imprisonment.

Dungan filed a direct appeal in the Supreme Court. In Dungan v. 

Commonwealth, No. 2016-SC-000358-MR, 2017 WL 5031354 (Ky. Nov. 2, 

2017), the Supreme Court affirmed in part, vacated in part, and remanded. The 

Supreme Court held that Dungan’s conviction of both third-degree rape and abuse 

of an adult violated the prohibition against double jeopardy. As a remedy, the 

Supreme Court vacated Dungan’s conviction for third-degree rape and remanded 

for resentencing. As to all other grounds, the Supreme Court affirmed Dungan’s 

conviction. Upon remand, the circuit court resentenced Dungan again to a total of 

twenty-years’ imprisonment by order entered March 12, 2018.

On December 26, 2018, Dungan filed an RCr 11.42 motion to vacate 

his sentence of imprisonment. Dungan alleged that trial counsel rendered 

ineffective assistance during trial. By order entered May 15, 2019, the circuit court 

denied the RCr 11.42 motion without an evidentiary hearing. This appeal follows.

To prevail upon a claim of ineffective assistance of counsel, a 

defendant must demonstrate that trial counsel’s performance was deficient and that 

such deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 

(1984). Prejudice occurs where there is a reasonable probability that but for 

counsel’s deficient performance, the outcome of the proceeding would have been 
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different. Strickland, 466 U.S. at 694. An evidentiary hearing is required only 

where the allegations are not refuted on the face of the record. Fraser v. 

Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). A motion filed pursuant to RCr 

11.42 must specifically state the grounds for relief, and mere conclusory 

allegations of error are insufficient to warrant an evidentiary hearing. Stanford v. 

Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993); Wedding v. Commonwealth, 

468 S.W.2d 273, 274 (Ky. 1971). 

Dungan contends that trial counsel was ineffective for failing to 

question jurors during voir dire who indicated that they knew some of the 

witnesses for the Commonwealth. Dungan points out that during voir dire, the 

Commonwealth asked if any potential jurors knew the witnesses for the 

Commonwealth. According to Dungan, some potential jurors indicated they knew 

a few of the Commonwealth’s witnesses by raising their hands. Dungan claims 

that trial counsel failed to question these potential jurors as to their familiarity with

the Commonwealth’s witnesses. By failing to do so, Dungan believes trial counsel 

rendered ineffective assistance.

Dungan, however, fails to indicate how many potential jurors raised 

their hands or if any of these potential jurors ultimately sat on the jury. Absent 

these pivotal facts, we conclude that Dugan has failed to demonstrate that trial 

counsel’s failure to question these potential jurors resulted in prejudicial error. 
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Dungan next alleges that trial counsel was ineffective for failing to 

object to the Commonwealth’s questioning of the victim, J.M., during trial. 

Specifically, Dungan maintains that the Commonwealth improperly played a 

videotaped interview of J.M. with child protective services. Dungan alleges that 

“for more than thirty (30) minutes [the Commonwealth] would play the interview 

tape then ask J.M. do you remember saying that, prior to J.M. every [sic] being 

allowed to deny the allegations; which is improper impeachment.” Dungan’s Brief 

at 9. Dungan argues that trial counsel rendered ineffective assistance by failing to 

object to the Commonwealth’s questioning of J.M. though the use of the prior 

videotaped interview.

In Dungan’s direct appeal, the Supreme Court addressed whether “the 

Commonwealth’s method of impeaching J.M. with her prior inconsistent 

statements to the forensic investigator was improper[.]” Dungan, 2017 WL

5031354 at *15. The Supreme Court noted that Dungan’s trial counsel objected to 

the admission of the videotaped interview of J.M. on hearsay grounds. Ultimately, 

the Supreme Court held that the Commonwealth’s impeachment of J.M. with her 

prior inconsistent statements (videotaped interview) was proper. As trial counsel 

did object to introduction of the videotaped interview and the Supreme Court held 

that introduction of such interview was not improper, it is clear that trial counsel’s

performance was not deficient and this issue was resolved by the Supreme Court.
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Dungan also claims that his trial counsel made improper remarks 

during the opening statement that opened the door to introduction of evidence of 

prior bad acts by Dungan. Specifically, Dungan cites trial counsel’s following 

statement: “[M]y client from day one has denied that this didn’t happen. His story 

has never changed.” Dungan’s Brief at 11. Because of trial counsel’s statement, 

Dungan claims the Commonwealth was permitted to introduce certain statements 

he made in connection to his previous 1993 guilty plea to third-degree rape of J.M. 

during the Commonwealth’s cross-examination of him during trial.1

Before trial, the Commonwealth gave notice of its intent to introduce 

evidence of Dungan’s prior guilty plea to third-degree rape of J.M. and of 

Dungan’s 1992 statement admitting to sexually abusing J.M. The circuit court 

ruled that the Commonwealth could introduce Dungan’s statement admitting to 

sexually abusing J.M. pursuant to Kentucky Rules of Evidence (KRE) 404(b). 

And, on direct appeal, the Supreme Court determined that admission of Dungan’s 

statement was proper under KRE 404(b). Given that Dungan testified on direct 

examination about his prior conviction and that Dungan’s prior statement 

admitting to sexually abusing J.M. was properly admitted under KRE 404(b), there 

is no basis to conclude that counsel rendered ineffective assistance during his 

opening statement.

 

1 Michael Dungan testified during the 2016 trial.
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Dungan next maintains that trial counsel rendered ineffective 

assistance for failing to hire an expert witness. Dungan argues that trial counsel 

should have employed a DNA expert to examine the semen found on J.M.

At trial, Dungan testified that the semen discovered on J.M. was 

transferred from bed linen where he and his wife had engaged in sexual conduct 

the preceding night. So, Dungan never claimed the semen belonged to another; 

thus, a DNA expert was unnecessary. Hence, we are of the opinion that trial 

counsel did not render deficient performance for failure to hire a DNA expert.

Dungan further maintains that trial counsel was ineffective for not 

objecting to the Commonwealth’s cross-examination of him and to the 

Commonwealth’s closing argument. In particular, Dungan argues:

During Cross Examination: the prosecution began 

explaining how Appellant was a preditor [sic], how he 

picked on the defenseless. How Appellant was released 

from prison and went back to it. . . . about incest. . . . and 

J.M.’s intellectual disability. That J.M. was in need of 

protection since 1995, and how this had been a ‘tragedy 

of my time as a prosecutor . . . for failure in this system 

and getting ready to fix that failure. If she won’t be kept 

from him, we well [sic] keep him from her.’ 

During Closing Arguments: the prosecution made 

the following statement, not objected to:

‘He’s not going to change.[’] Something 

else, I’m going to tell my kids that today 

their dad had to put [a] girl on [the] stand 

and she asked me [if] I’m stupid and that 

hurt me, but that’s her everyday and I can’t 
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imagine, I can’t imagine that being your 

everyday. Imagine you are trapped in a 

body getting progressively worst [sic] and 

during the time frame in question you are 

sexually assaulted by someone you’re 

suppose [sic] to trust. He’s not going to 

change.

The prosecution during cross examination and 

closing arguments gave what amounted to a ‘send a 

message’ and also during closing arguments, ask the jury 

‘imagine you are in a body getting . . . you are sexually 

assaulted . . .’ which amounts to asking the jury to put 

themselves in the victim’s shoes. Both statements [are] 

irregular and improper which prejudiced Dungan’s trial. 

Defense counsel failed to object to preserve for direct 

appeal, thus waiving the issues.

Dungan’s Brief at 20-21 (citations omitted).

We are not convinced that trial counsel was deficient by failing to 

object; however, it is beyond cavil that Dungan has failed to demonstrate any 

prejudicial effect. The evidence at trial overwhelmingly proved Dungan’s guilt, 

and the Commonwealth’s above comments were not so inflammatory as to change 

the outcome of trial.

Dungan lastly argues that trial counsel was ineffective for failing to 

investigate a witness for Commonwealth, Erin Wolf, and for opening the door to 

Wolf’s testimony that she directly observed Dungan sexually abusing J.M. in the 

past.2 Dungan claims that trial counsel failed to adequately investigate Wolf 

 

2 Erin Wolf is J.M.’s sister.
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before trial. According to Dungan, trial counsel erroneously asked Wolf if she had 

directly observed Dungan sexually abusing J.M. Dungan does not explain how an 

investigation of Wolf would have changed the outcome of his trial.

We must emphasize that the jury heard overwhelming evidence of 

Dungan’s guilt. An eyewitness testified to observing J.M. in Dungan’s bedroom 

turned toward the bed and to Dungan pulling up his shorts from below his hips

when leaving the bedroom. Additionally, Dungan’s semen was found on J.M., 

after she was examined by a sexual assault nurse.

We cannot conclude that counsel’s conduct was deficient regarding 

any of Dungan’s allegations. Based on the evidence presented in the record in this 

appeal, if there was a deficiency, it did not result in prejudice to Dungan. Simply 

stated, there is no reasonable probability that but for counsel’s deficient 

performance, the outcome of the proceeding would have been different. 

Strickland, 466 U.S. at 694. And, by failing to meet the Strickland “prejudice 

prong,” there was no necessity for an evidentiary hearing Haley v. 

Commonwealth, 586 S.W.3d 744, 754 (Ky. App. 2019).

In conclusion, we hold that the circuit court properly denied Dungan’s 

RCr 11.42 motion without an evidentiary hearing.

For the foregoing reasons, the order of the Pulaski Circuit Court is 

affirmed.
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ALL CONCUR.

BRIEFS FOR APPELLANT:

Michael Dungan, Pro Se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Frankfort, Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky