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RENDERED: DECEMBER 15, 2022

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0465-MR

HARLAN EDDIE MCINTOSH APPELLANT 

V. 

ON APPEAL FROM POWELL CIRCUIT COURT

HONORABLE LISA HAYDEN WHISMAN, JUDGE

NO. 20-CR-00101

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Harlan Eddie McIntosh was convicted following a jury trial of kidnapping in 

the first degree (minor), rape in the first degree, robbery in the first degree, and 

of being a persistent felony offender in the first degree (PFO I). While the jury 

recommended an aggregate sentence of 150 years, the trial court imposed a 

sentence of seventy years to comply with KRS1 532.110. McIntosh now appeals 

as a matter of right2 raising four allegations of error. Following a careful 

review, we affirm.

On July 13, 2020, 16-year-old H.T. and two of her male friends left 

Cincinnati to travel to Red River Gorge to meet a friend of one of the boys for an 

overnight campout. The trio arrived between 1:00 a.m. and 2:00 a.m. on July 

1 Kentucky Revised Statutes.

2 Ky. Const. §110(2)(b).
2

14, and, being unable to locate the appropriate campsite because of the 

darkness and their unfamiliarity with the area, they decided to sleep in the car. 

After consuming a quantity of alcohol, the boys sought out an adult to 

purchase more for them. They observed McIntosh leaning against a truck 

nearby and engaged him in conversation. McIntosh agreed to buy the kids 

more beer and got into the rear passenger seat of their car.

During the drive, McIntosh produced a firearm and ordered the driver to 

pull to the side of the road. He then made the boys get out of the car and lie on 

the ground, aggressively pointing the gun at H.T. to get them to comply with 

his commands. McIntosh drove away with H.T. still in the car, telling her he 

would release her when they returned to the lot where they had first met. After 

driving for a period of time, McIntosh stopped the car and forcibly raped H.T. 

on the hood of the vehicle. Afterwards, McIntosh dropped H.T. at a gas station 

and drove away. H.T. reported the attack to a police officer who happened to 

be parked across the street. McIntosh fled to Tennessee. The stolen vehicle 

was located in Gatlinburg, Tennessee, later that same day and McIntosh was 

found shortly thereafter in Pigeon Forge, Tennessee, carrying a backpack and 

identification belonging to one of the boys.

A grand jury subsequently indicted McIntosh on charges of kidnapping 

in the first degree (minor), rape in the first degree, robbery in the first degree, 

possession of a handgun by a convicted felon, and PFO I. In December 2020, 

one month after his arraignment, McIntosh was granted leave to act as his own 
3

counsel (with hybrid counsel) following a Faretta3 hearing wherein the trial 

court found him competent to represent himself. At the hearing, McIntosh 

voiced his desire for a speedy trial. Throughout the pretrial period, McIntosh 

was keenly focused on expediting the process and objected to any activity 

which could delay his trial.

The following month, appointed counsel unsuccessfully sought to have 

McIntosh released on bond to “get him in treatment” to prepare for trial. In 

March 2021, defense counsel filed an ex parte request for funding to retain a 

physician to complete an independent psychological evaluation.4 In late June, 

McIntosh swallowed razor blades in an unsuccessful suicide attempt. The trial 

court ordered McIntosh be sent to Kentucky Correctional Psychiatric Center 

(KCPC) for a competency evaluation. McIntosh objected to the trial court’s 

order, arguing an evaluation would delay his trial which was set for 

approximately three weeks later. He was adamant he did not want a 

continuance of any kind. The trial court assured McIntosh the evaluation 

would be completed expeditiously and would not impact his trial date. KCPC 

conducted the evaluation and found McIntosh competent to stand trial.

3 Faretta v. California, 422 U.S. 806 (1975).

4 For reasons unclear from the record, no action was taken on the motion until 

an order was signed on July 14, 2021, granting the requested funds. However, the 

trial court and defense counsel appear to have proceeded under the assumption the 

order had, in fact, been signed shortly after the motion seeking funding was filed. 

Although the order was not signed until close in time to the trial, it does not appear 

that failure was a hindering factor for the defense as evidenced by defense counsel’s 

affirmative statements that contact was made with a physician around the time the 

motion was filed, and the sole reason offered for any delay in obtaining an evaluation 

centered on “scheduling issues.”
4

At a subsequent hearing convened six days prior to trial, defense counsel 

asserted an independent evaluation and a competency hearing were necessary. 

Although competency had never been placed in issue, counsel asserted

because the trial court had sua sponte raised the matter, a competency hearing 

was mandatory. The trial court was informed a defense expert could not 

examine McIntosh until the middle of September, which was nearly five weeks 

after trial was scheduled to begin. Defense counsel indicated discussions had 

been ongoing with the expert since March 2021, but he had no availabilities in 

his schedule prior to September. Because the examination could not be 

completed prior to trial, defense counsel suggested a continuance was 

necessary as a practical matter, although counsel specifically indicated she 

was not seeking a continuance. McIntosh vehemently objected to any delay of 

the impending trial. The trial court concluded no sufficient cause had been 

shown necessitating a competency evaluation and hearing and denied the 

defense motion.

Trial began on August 9, 2021, as scheduled. On the fourth day of trial, 

McIntosh again swallowed razor blades and was transported to the hospital 

where he refused treatment. Defense counsel sought a mistrial and reiterated 

the need for a psychological examination. The trial court refused to declare a 

mistrial and the case resumed the following day.

At the close of the case, as the jury was retiring to deliberate, McIntosh 

stood up, threw a water bottle toward the panel, and yelled at an unknown 

juror “When are you going to tell them you know me man? When are you going 
5

to tell them you know me?” Security personnel immediately tackled McIntosh 

and the jury was ushered out of the courtroom. Defense counsel’s motion for a 

mistrial was denied, and McIntosh participated in the remainder of the 

proceedings via video conference. The jury convicted McIntosh of kidnapping, 

robbery, rape and being a PFO I, and recommended an aggregate sentence of 

150 years’ imprisonment. The trial court reduced the sentence to the statutory 

maximum of 70 years in compliance with KRS 532.110(c). This appeal 

followed.

McIntosh raises several allegations of error in seeking reversal. First, he 

asserts the trial court erred in refusing to grant a continuance to hold a 

competency hearing and permit him time to obtain an independent 

psychological evaluation. Second, he contends he was entitled to a mistrial 

after he yelled at and threw a water bottle toward the jury. Third, McIntosh 

argues the trial court erred in failing to exclude H.T.’s pretrial identification of 

him. Next, he claims the trial court erroneously permitted the Commonwealth 

to present rebuttal evidence that was more prejudicial than probative. Finally, 

McIntosh alleges cumulative error. For the reasons that follow, and discerning 

no reversible error, we affirm.

McIntosh first contends the trial court erred in not granting his request 

for a continuance to have an independent psychological examination completed 

and a competency hearing convened. He argues the trial court’s failure 

resulted in identifiable prejudice as he was unable to pursue any mental health 

defense or mitigation.
6

Our review of the record reveals McIntosh never requested the 

continuance he now alleges was erroneously denied. In fact, quite the opposite 

is true. A competency hearing was first requested less than one week prior to 

trial but counsel made clear no request for a continuance was being made. 

McIntosh voiced his desire that trial move forward as scheduled and opposed 

any continuance. Defense counsel indicated their expert would be unable to 

evaluate McIntosh in the short time remaining before trial. Although several 

months had passed since requesting expert funding, apart from indicating the 

preferred psychologist had not had any availability, no explanation was 

proffered as to what efforts had been made to obtain the requested evaluation 

or procure another expert who had scheduling availability. McIntosh reiterated 

his opposition to delaying trial. The Commonwealth likewise opposed a 

continuance.

The trial court stated McIntosh had made clear he did not desire a 

continuance and confirmed with defense counsel no continuance was being 

requested. It further noted competency had never before been raised, KCPC 

had found McIntosh competent, and, citing Padgett v. Commonwealth, 312 

S.W.3d 336, 348 (Ky. 2010), because no substantial evidence of incompetency 

had been presented, a competency hearing was unwarranted. The trial court 

then denied the only motion pending before it—a request for a competency 

hearing. 
7

This Court finds McIntosh’s present challenge was not preserved. He has 

requested review for palpable error under RCr5 10.26. However, a review for 

palpable error is not appropriate because McIntosh waived his claim to raise

this issue as error. Not only did the trial court not deny a requested 

continuance, both McIntosh and his counsel affirmatively stated no such relief 

was being requested.

As this Court stated in Quisenberry v. Commonwealth, 336 S.W.3d 19, 37

(Ky. 2011), “[t]hese alleged errors, therefore, were not merely unpreserved, they 

were invited.” We further noted other courts had distinguished “forfeited 

errors, which are subject to [palpable] error review, and waived errors, which 

are not . . . [and] ha[ve] held that invited errors that amount to a waiver, i.e.,

invitations that reflect the party’s knowing relinquishment of a right, are not 

subject to appellate review.” Id. at 38 (citing United States v. Perez, 116 F.3d 

840 (9th Cir. 1997)). The rationale behind this rule is to prevent a defendant 

from committing an act and later complaining on appeal the trial court erred to 

his detriment. See Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006).

Simply stated, “[a] defendant cannot complain on appeal of alleged errors 

invited or induced by himself[.]” Id. (quoting United States v. Lewis, 524 F.2d. 

991, 992 (5th Cir. 1975)). “Generally, a party is estopped from asserting an 

invited error on appeal.” Quisenberry, 336 S.W.3d at 37 (citing Gray, 203 

S.W.3d at 686). Otherwise, a party would be permitted “to take advantage of 

5 Kentucky Rules of Criminal Procedure.
8

an error produced by his own act.” Wright v. Jackson, 329 S.W.2d 560 (Ky. 

1959); United States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017) (“Challenges 

to such invited errors are forfeited.”). Because McIntosh specifically asked that 

no continuance be allowed and asserted multiple times that he wished for his 

trial to be held as scheduled without further delay, he waived his right to claim 

on appeal that he was entitled to a continuance. 

Even were we to consider the merits of McIntosh’s claim, we discern no 

error. As the trial court correctly noted, no substantial evidence of a lack of 

competency was ever presented and the defense did not raise the issue until 

the eve of trial and only after KCPC had issued a report finding McIntosh was 

competent. Based on the utter lack of evidence of incompetency, the trial court 

correctly determined no competency evaluation and hearing were required. See 

Padgett, 312 S.W.3d at 347. Further, McIntosh was not deprived of the 

opportunity to obtain an independent psychological evaluation. Funds were 

requested to obtain such an examination, yet months passed without apparent 

action. No indication was given of why a different doctor could not have been 

procured in the months leading up to trial, especially when McIntosh had made 

it very clear that he did not wish to delay his trial for any reason. If 

competency was, in fact, going to be placed in issue, steps could have been 

taken to obtain an independent evaluation sufficiently ahead of the scheduled 

trial so that his competency could be fully and fairly explored McIntosh was 

granted sufficient opportunity to pursue a mental health defense or mitigation 
9

but failed to do so. Any alleged error cannot be laid at the feet of the trial court 

for McIntosh’s own failure to act in a timely fashion.

Second, McIntosh argues the trial court should have granted a mistrial 

after he threw a water bottle toward jurors and yelled at an unidentified juror 

accusing him of hiding the fact of knowing McIntosh. He contends the 

outburst created the manifest necessity of granting a mistrial because the jury 

had been placed in such fear it could therefore not remain unbiased, resulting 

in an unfair trial.

“It is well established that the decision to grant a mistrial is within the 

trial court’s discretion, and such a ruling will not be disturbed absent a 

showing of an abuse of that discretion.” Woodard v. Commonwealth, 147 

S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 

(Ky. 2002)). Additionally, “a mistrial is an extreme remedy and should be 

resorted to only when there is a fundamental defect in the proceedings and 

there is a ‘manifest necessity for such an action.’” Id. (quoting Bray, 68 S.W.3d 

at 383). The cause of the need for mistrial “must be 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.” Id. (quoting Gould v. 

Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)).

“[W]here a defendant’s own intentional conduct creates the basis for the 

allegations of error, we have long recognized an exception to general rules for 

reasons that ‘[a] court must guard against allowing a defendant to profit from 

his own wrong in this way.’” Meece v. Commonwealth, 348 S.W.3d 627, 711 
10

(Ky. 2011) (quoting Illinois v. Allen, 397 U.S. 337, 345 (1970)). “[I]t is essential 

to the proper administration of criminal justice that dignity, order, and 

decorum be the hallmarks of all court proceedings in our country. The flagrant 

disregard in the courtroom of elementary standards of proper conduct should 

not and cannot be tolerated.” Id. (quoting Allen, 397 U.S. at 343). “This 

reflects the interest of society in an orderly judicial process and is necessary to 

prevent the paralysis of criminal proceedings and turning them into a farce.” 

Scott v. Commonwealth, 616 S.W.2d 39, 43 (Ky. 1981).

Here, McIntosh had acted appropriately before the jury throughout the 

multi-day trial and had actively assisted with his own defense. It was not until 

the jury was retiring to decide his fate that McIntosh engaged in any 

misconduct. He now attempts to blame his “spiraling mental health” for the 

outburst and claims his actions irretrievably biased the jury against him.

Were such the rule, then, of course, a defendant could control the 

course of a trial by intentionally creating disturbances that caused 

juror excusals, necessitated continuances, and terminated trials, 

at their discretion, by mistrial. Such a rule would give to a 

defendant the right to control the trial, rather than the right to a

fair trial. Thus, such a rule would not further the interests of 

society in an orderly judicial process—a process that is necessary 

to ensure that each and every person receives a constitutionally 

mandated fair trial.

Meece, 348 S.W.3d at 711-12. We discern no abuse of discretion in the trial 

court’s refusal to grant a mistrial based on McIntosh’s own voluntary bad 

behavior.
11

Next, McIntosh argues the trial court erred in denying his pretrial motion 

to suppress H.T.’s in-court6 and out-of-court identification of him as the 

perpetrator. He avers the actions of Kentucky State Police Detective Justin 

Flannery surrounding H.T.’s out-of-court identification were unduly suggestive 

and deprived him of due process. We disagree.

During a suppression hearing, the following facts were elicited. On the 

day of the attack, Detective Flannery interviewed H.T. at the Kentucky River 

Medical Center. During the interview, H.T. described her attacker and the 

firearm he had used. Hearing these descriptions, Detective Flannery recalled a 

robbery which had occurred a few days earlier and believed the same person 

may have committed both crimes. McIntosh was already a suspect in the 

robbery so Detective Flannery stepped out of H.T.’s room to request a photo 

lineup be prepared which included McIntosh. Knowing the lineup would take 

some time to assemble, Detective Flannery proceeded with the interview but 

did not indicate to H.T. that he had a suspect in mind.

As he neared the end of the interview, Detective Flannery turned his 

back to H.T. and accessed McIntosh’s Facebook profile from his mobile phone. 

He indicated his intent was to determine if McIntosh had any distinguishing 

characteristics about which he could question H.T. While he was looking at a 

photograph of McIntosh on his phone, H.T. leaned up from the hospital bed 

and said, “That’s him.” Upon further questioning by another detective present 

6 McIntosh makes no argument regarding H.T.’s in-court identification of him 

as being erroneous. Thus, further discussion of that issue is unwarranted.
12

in the room, H.T. confirmed she was certain of her identification. 

Approximately 10 to 15 minutes later, Detective Flannery received the photo 

lineup and H.T. picked out McIntosh as her rapist.

Following the suppression hearing, both parties briefed the issues. In a

detailed, eleven-page order denying McIntosh’s motion, the trial court utilized 

the two-part test set forth in Neil v. Biggers, 409 U.S. 188 (1972), to determine 

whether H.T.’s identification of McIntosh was sufficiently infirm to violate 

McIntosh’s due process rights. First, the trial court concluded H.T.’s “seeing” 

of McIntosh’s photograph was unduly suggestive based on the circumstances. 

Next, the trial court looked to the totality of the circumstances to determine 

whether the identification was reliable in spite of the suggestive identification 

procedure. In so doing, the trial court again looked to Neil for guidance.

[T]he factors to be considered in evaluating the likelihood of 

misidentification include the opportunity of the witness to view the 

criminal at the time of the crime, the witness’ degree of attention, 

the accuracy of the witness’ prior description of the criminal, the 

level of certainty demonstrated by the witness at the confrontation, 

and the length of time between the crime and the confrontation.

Id. at 199-200.7 After discussing each factor, the trial court determined there 

was no substantial likelihood of a misidentification and the weight of the 

factors was sufficient to overcome any suggestiveness in H.T.’s original 

identification of McIntosh from the Facebook photo. Thus, suppression was 

denied.

7 Although not mentioned by the trial court, we adopted the Neil test in Savage 

v. Commonwealth, 920 S.W.2d 512, 513 (Ky. 1995).
13

McIntosh disagrees with the trial court’s assessment and urges us to 

overturn his conviction based on what he believes was an impermissibly 

suggestive procedure which resulted in an unreliable identification. We decline 

to do so.

When reviewing the denial of a motion to suppress, a clearly erroneous 

standard applies to a trial court’s factual findings and they will be deemed 

conclusive if supported by substantial evidence. Davis v. Commonwealth, 484 

S.W.3d 288, 290 (Ky. 2016). 

We review a trial court’s ruling on a motion to suppress an out-of-court 

identification for an abuse of discretion as we do a ruling regarding the 

admissibility of any evidence. King v. Commonwealth, 142 S.W.3d 645, 649 

(Ky. 2004). An abuse of discretion occurs when the trial court’s “decision [is] 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 

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

When a defendant questions the validity of an out-of-court identification, 

the trial court must first determine if that identification was unduly or 

impermissibly suggestive. Grady v. Commonwealth, 325 S.W.3d 333, 353 (Ky. 

2010). If it was not, then the analysis stops. Id. However, if the trial court 

determines the procedure was infirm, as did the court below, it must then turn 

to the second prong of the Neil test to determine whether an independent basis 

of support exists for the identification. We agree with the trial court that the 

five Neil factors were met.
14

The first Neil factor in the “totality of the circumstances” test is the 

opportunity to view. H.T spent a considerable amount of time with her 

assailant, as she was with McIntosh for over two hours, interacting with him at 

the parking lot, in the vehicle, and outside the vehicle during the rape. 

Although McIntosh argues it was too dark for H.T. to see her attacker and H.T. 

remarked she closed her eyes during the encounter, it is clear she had ample 

opportunity to observe him in the course of her ordeal. Nothing in the record 

indicates McIntosh tried to conceal his identity or that his features were not 

observable. The second factor is the witness’s degree of attention. As the trial 

court noted, during the rape, H.T. would not have been a “casual observer, but 

rather the victim of one of the most personally humiliating of all crimes.” Neil, 

409 U.S. at 200. McIntosh’s bald assertion the stress and trauma of a rape 

impairs the victim’s attention is without merit. The third factor is the accuracy 

of prior descriptions. Before viewing McIntosh’s Facebook photo, H.T. gave a 

detailed description of her attacker including hair color and length, 

approximate height and weight, approximate age, location and amount of facial 

hair, and skin tone. Although some of her descriptions were not entirely 

accurate and she failed to mention any of McIntosh’s tattoos, the overall 

description was a close match for McIntosh and any discrepancies were subject 

to impeachment on cross-examination. The fourth factor is the level of 

certainty at confrontation. H.T. never wavered in her identification. Upon 

seeing the Facebook photo, she immediately and unequivocally said, “That’s 

him” and responded “Yes” when asked if she was positive. The fifth factor is 
15

time between the crime and the confrontation. The time period between the 

rape and the identification was a matter of a few hours.

Analyzing the Neil factors, the totality of the circumstances indicate 

H.T.’s identification was reliable, and there was no substantial likelihood of 

misidentification, in spite of the suggestive nature of H.T.’s viewing of the 

Facebook photograph. McIntosh’s due process rights were not violated. The 

trial court did not abuse its discretion in permitting the out-of-court 

identification to be presented to the jury.

For his fourth allegation of reversible error, McIntosh avers the trial court 

erred in permitting the Commonwealth to introduce rebuttal evidence which 

was more prejudicial than probative. Prior to trial, the Commonwealth 

provided notice of its intent to introduce evidence of McIntosh’s alleged 

involvement in an uncharged armed robbery which occurred less than two days 

before the events at issue in this case. The trial court granted McIntosh’s 

motion to exclude the evidence as the robbery was unrelated to the crimes 

charged. However, during his testimony, McIntosh stated he did not pull a gun 

on the victims and that he had found the pistol in a backpack after he stole 

their vehicle.

The Commonwealth moved to provide rebuttal evidence from Detective 

Flannery that McIntosh had possessed the handgun during the armed robbery 

two days prior to stealing the vehicle. The trial court concluded McIntosh had 

opened the door to the rebuttal but excluded any reference to an alleged 

robbery as being more prejudicial than probative. It permitted the 
16

Commonwealth to elicit testimony only that on a particular date, after viewing 

a particular video, a person appearing to be McIntosh was in possession of 

what appeared to be the same gun used in the instant crimes.

Detective Flannery testified he believed McIntosh possessed the gun on 

July 12, 2020, based on his knowledge and review of camera footage. In a 

follow-up question, the Commonwealth asked Detective Flannery if McIntosh 

pulled a gun in the video. Defense counsel immediately objected and requested 

a mistrial. The trial court concluded the question went beyond its ruling but 

declined to order a mistrial. No admonition was requested. Detective Flannery 

was subsequently permitted to confirm McIntosh had a gun in the video 

footage.

McIntosh now claims the trial court erred when it failed to use neutral 

language to describe the video footage, instead using the prejudicial and loaded 

term “surveillance camera” which was subsequently copied by the 

Commonwealth, and further erred in failing to take action to correct the 

Commonwealth’s statement McIntosh “pulled a gun” in the “surveillance video.” 

He asserts he was unduly prejudiced by these errors and reversal is required. 

Again, we disagree.

Trial courts are granted broad discretion in determining the admissibility 

of rebuttal evidence and we review for an abuse of that discretion. Peters v. 

Commonwealth, 345 S.W.3d 838, 844 (Ky. 2011). “Rebuttal evidence is 

evidence that ‘tends to counteract or overcome the legal effect of the evidence 

for the other side.’” Fraser v. Miller, 427 S.W.3d 182, 184-85 (Ky. 2014)
17

(quoting Reserve Loan Life Ins. Co. v. Boreing, 157 Ky. 730, 163 S.W. 1085, 

1087 (1914)).

McIntosh concedes he opened the door for rebuttal testimony to counter 

his direct testimony claiming he had not possessed a gun prior to his 

interactions with H.T. and her friends. Thus, McIntosh does not argue the trial 

court erred in permitting the rebuttal. Rather, he posits the Commonwealth 

exceeded the parameters laid down in the trial court’s ruling allowing the 

rebuttal testimony, thus entitling him to relief.

As previously stated, whether to grant the extreme remedy of a mistrial is 

within the trial court’s discretion, and we will not disturb such rulings absent 

an abuse of that discretion. Woodard, 147 S.W.3d at 68. “[T]he trial court, in 

its discretion, may choose to admonish the jury instead of granting a mistrial; 

this is so because an admonition is presumed to cure a defect in testimony.” 

Major v. Commonwealth, 275 S.W.3d 706, 716 (Ky. 2009). No request for an 

admonition was put to the trial court and the failure to do so is generally 

regarded as trial strategy. Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky. 

2005).

The trial court did not abuse its discretion in refusing to grant a mistrial

as that was not the appropriate remedy under the circumstances. Instead, the 

appropriate remedy, had it been requested, would have been an admonishment 

to the jury. Breaches of KRE8 404(b)’s rule against the admission of prior bad 

8 Kentucky Rules of Evidence.
18

acts as character evidence are generally subject to admonitory cures. Boyd v. 

Commonwealth, 439 S.W.3d 126, 132 (Ky. 2014). The sole reasoning behind 

McIntosh’s request for a mistrial was the Commonwealth’s question posed to 

Detective Flannery of whether McIntosh “pulled a gun,” which he asserts was a 

thinly veiled reference to the robbery. Although the Commonwealth’s question 

arguably impermissibly contravened the parameters of the trial court’s ruling, 

it was not inflammatory or highly prejudicial, nor did the question lack a 

factual basis. Since McIntosh did not request an admonition to the jury, “the 

failure to give the admonition and the conduct complained of are not 

considered prejudicial. The court properly refused to discharge the jury.” 

Coulthard v. Commonwealth, 230 S.W.3d 572, 578 (Ky. 2007) (quoting Jackson 

v. Commonwealth, 275 S.W.2d 788, 789 (Ky. 1955)).

Finally, McIntosh claims his convictions should be reversed due to

cumulative error. Under the cumulative error doctrine, “multiple errors, 

although harmless individually, may be deemed reversible if their cumulative 

effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 

313 S.W.3d 577, 631 (Ky. 2010). Cumulative error has been found “only where 

the individual errors were themselves substantial, bordering, at least, on the 

prejudicial.” Id. (citation omitted). Here, as we have found no individual 

errors, there can be no cumulative error.

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

affirmed.

All sitting. All concur.
19

COUNSEL FOR APPELLANT:

Erin Hoffman Yang

Jennifer Wade

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Kristin L. Conder

Assistant Attorney General