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RENDERED: MARCH 25, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0591-MR

TRAVIS DURRUM APPELLANT

ON APPEAL FROM FRANKLIN CIRCUIT COURT

V. HONORABLE THOMAS D. WINGATE, JUDGE 

NO. 18-CR-00266

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Travis Durrum was convicted of one count of first-degree criminal abuse, 

one count of first-degree rape, one count of first-degree sexual abuse, and two 

counts of first-degree sodomy, of a victim under twelve (12) years of age. The 

jury recommended a sentence of eighty (80) years, which the trial court 

appropriately reduced to seventy (70) years, the maximum permitted under 

Kentucky Revised Statute (KRS) 532.110. This appeal followed as a matter of 

right.1 Having reviewed the record and the arguments of the parties, we affirm

the judgment of the Franklin Circuit Court.

 

1 See KY. CONST. § 110(2)(b).
2

I. BACKGROUND

This case rests principally on the credibility and testimony of two 

individuals, the victim M.S. 2 and the defendant Travis Durrum (Travis). In 

order to adequately understand, and analyze for possible misconduct, the 

Commonwealth’s cross-examination of Travis and closing arguments, it is 

necessary to summarize in some detail the trial testimony of all seven 

witnesses. 

Travis and his wife Juanita Durrum (Juanita) served as guardians for the 

victim, M.S. In July 2016, M.S.’s biological mother was in drug rehabilitation,

and prior to her residing with the Durrums, M.S. was being cared for by her 

maternal grandmother. The grandmother would take M.S. to see her mother,

which was not permitted. Juanita was related to M.S., and M.S. was put in the 

custody of Travis and Juanita in late July or early August 2016. M.S. was 

seven years old when she began living with the Durrums. The record, including 

M.S.’s testimony, is unclear as to the actual familial relationship between 

Juanita and M.S. In her testimony, M.S. stated she thought Juanita was her 

“great-aunt’s sister.”

During M.S.’s time with the Durrums, they resided at three locations. 

Initially, they lived in a small apartment in Lawrenceburg in Anderson County. 

In November 2016, the family moved to a townhouse in Franklin County and in 

March 2017, to an apartment in Franklin County. In addition to M.S. and the 

 

2 To preserve the privacy of the minor victim, we will refer to her by her initials.
3

Durrums, Travis’s sister Nicole, Nicole’s boyfriend, and their children lived with 

them in the townhouse location. When they moved to the Franklin County 

apartment, Nicole and her family occupied an apartment across the hall. 

This arrangement lasted until November 2017, when M.S. was removed 

from Travis and Juanita’s custody by the Cabinet for Health and Family 

Services (CHFS) and placed with a foster family. Approximately one month after 

her placement, M.S. disclosed to her foster mother, Tiffany Parsons, that Travis 

had sexually abused her. The charged events are all alleged to have occurred in 

either the townhouse or apartment in Franklin County between October 2016 

and November 2017.

At trial, the Commonwealth called four witnesses: CHFS social service 

investigator, Craig Gonzales; Tiffany Parsons; forensic pediatrician, Dr. 

Sugarman; and M.S. herself. Gonzales testified that upon receiving Parsons’s 

report, he initiated an investigation and attempted to contact Travis at least 

four times. Travis refused any interview without an attorney. During visits to 

the Durrums’ residence, Gonzales only spoke with Juanita. Gonzales stated 

that as he arrived during one of the contact attempts, he saw a male, whom he 

later recognized as Travis, throwing away a twin mattress. Gonzales further 

testified that M.S. indicated to him that there was a second child involved with 

the events. On cross-examination, Gonzales stated he was never able to 

substantiate the presence of or events regarding a second child.

Tiffany Parsons’s testimony was limited. Parsons described the events 

surrounding M.S.’s first disclosure of the abuse, approximately a month after 
4

coming to Parsons’s home. Parsons stated that upon being told of the abuse,

she immediately contacted CHFS. Parsons also testified to M.S.’s good 

performance in school and M.S.’s concerns over others learning of her abuse. 

Parsons indicated M.S. became upset on occasion when she thought other 

people knew of what happened or were talking about her.

Dr. Sugarman’s testimony related to the forensic examination she 

performed on M.S. Dr. Sugarman testified that this examination was “normal,” 

but that a normal examination is not indicative of whether a specific event or 

series of events did or did not occur. Dr. Sugarman testified that the areas of 

the human body involved heal rapidly, and it had been a substantial period 

between the last contact between M.S. and Travis and the examination. At one 

point, the Commonwealth sought Dr. Sugarman’s opinion on whether M.S. was 

telling the truth, the question was objected to, and the trial court sustained the 

objection. A copy of Dr. Sugarman’s report was entered into evidence, with the 

portions concerning M.S.’s description of events redacted.

M.S. testified that Travis tried to initiate both vaginal and anal sex on 

more than one occasion. At the time of her testimony, M.S. was ten years old 

and testifying to abuse that began when she was seven years old and 

continued until she was eight. M.S. stated that Travis forced her to perform

oral sex and that the abuse would occur after Travis arrived home from work if 

Juanita was not there. On cross-examination, defense counsel questioned 

M.S.’s veracity, calling into question the discrepancy between her original 

statements to authorities that “it happened almost every day” to her current 
5

statement that “it happened whenever he got a chance.” Defense counsel also 

elicited statements from M.S. that Travis never moved out of the home prior to 

her removal in November 2017. 

Travis called two witnesses and testified on his own behalf in efforts to 

rebut elements of M.S.’s testimony. Travis’s sister Nicole and her family lived 

with the Durrums in the townhouse location and across the hall at the 

apartment location. Nicole testified that in her experience, Travis was never 

alone with M.S., but on cross-examination, she admitted she was not with 

them all the time so could not be certain they were never alone. Nicole further 

stated the two households effectively operated as one, with people coming and 

going without knocking. Nicole also testified that Travis separated from Juanita 

in August 2017 and never moved back into the home. During crossexamination, the Commonwealth also questioned Nicole regarding Travis’s use 

of the last name “Durrum,” with Nicole admitting that Travis took Juanita’s 

last name when they married. Travis’s mother, Sandra, also testified to the 

separation, though she was less specific as to the actual month Travis moved 

out and could not state that he never returned to the home to visit.

Travis took the stand to testify in his own defense. His defense was 

principally based on an assertion that he never had an opportunity to commit 

the acts described by M.S. He testified that during the period in question, he 

worked for a manufacturer in Shelbyville, often working both day and night 

shifts and purporting to have an hour-and-a-half commute each way. Travis 

also stated that he was never alone with M.S., that he never had any sexual 
6

contact with M.S., and that M.S. never confronted him regarding his alleged 

behavior. Travis testified he moved out of the apartment during the second 

week of August 2017 after a fight with Juanita and never moved back into the 

apartment.

On cross-examination, the Commonwealth took issue with Travis’s 

statement that his commute was an hour and a half to travel twenty-six miles 

of Interstate 64 to get to and from his job. They further questioned Travis’s 

assertion that he worked extreme hours, emphasizing that Travis failed to 

introduce any corroborating evidence as to this work schedule, despite the fact 

such evidence should be easily available. The Commonwealth then began a 

series of questions relating to Travis and Juanita’s relationship, specifically 

their marital fidelity. Specifically, the Commonwealth began by asking Travis if

Juanita became pregnant after separating from Travis. Defense counsel 

objected to this question as irrelevant. The Commonwealth then rephrased the 

question to ask whether Juanita was having an affair during their marriage. In 

response, Travis stated it was not an affair, as they had an “open marriage.” 

Travis’s admission elicited a noise by the Commonwealth’s Attorney, which 

Travis argues was “Eww” while the Commonwealth argues was “Ooh.” The 

Commonwealth’s Attorney then said, “I understand that’s kind of outside the 

normal bounds of morality.” The defense objected, and the Commonwealth 

appended an “[I]sn’t it?” in an attempt to turn the statement into a question. 

The court directed the statement/question to be stricken and for the 

Commonwealth to “move on to something else.” Despite the court’s direction, 
7

the Commonwealth continued to question Travis on the morality of his lifestyle, 

effectively forcing Travis to comment on his own morality. Defense counsel did 

not object to this continued questioning. The Commonwealth then asked

follow-up questions regarding Travis’s other girlfriends and relationships, facts 

that Travis had testified to on direct.

In closing argument, defense counsel emphasized the discrepancy 

between M.S.’s statement that “it happened almost every day” and that the 

abuse occurred after work between five and six in the evening. The defense

characterized this time frame as unlikely due to usually high activity in the

home at that time, and therefore the chance of discovery was high. The defense 

left the jury with the question, “could it have happened almost every day 

without someone finding out?” 

The Commonwealth, in closing, made a number of statements supporting 

M.S.’s credibility. The Commonwealth emphasized that the defendant’s only 

argument was that M.S. was making up all of the events. The Commonwealth

supported M.S.’s testimony by directing the jury to Tiffany Parsons’s testimony 

as to M.S.’s concern over others knowing of the events, Craig Gonzales’s 

witnessing Travis disposing of a twin mattress, and a lack of apparent motive 

by M.S. to fabricate her story. The Commonwealth further stated, “[y]ou have a 

little girl who’s 100% believable, and 100% credible...There wasn’t a thing that 

came out of her mouth that wasn’t true...I never saw a face like that 

before....the most credible witness I ever saw. Everything she told you was 

true.” The Commonwealth emphasized that point by referring back to portions
8

of Dr. Sugarman’s testimony which described the language and terms victims 

M.S.’s age use when describing such events.

Additional facts are discussed below as necessary.

II. ANALYSIS

Travis asserts there was flagrant prosecutorial misconduct during the 

Commonwealth’s cross-examination of Travis and in the Commonwealth’s 

closing argument warranting reversal of his convictions. Additionally, Travis 

argues the court’s failure to renumber the counts after dismissing count one is 

reversible, palpable error.

A. Prosecutorial misconduct 

“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act 

involving an attempt to persuade the jury to wrongly convict a defendant or 

assess an unjustified punishment.’”3 One way in which the misconduct can 

occur is through an improper closing argument.4 Any allegation of misconduct 

must be viewed in the context of the overall fairness of the trial.5 To justify 

reversal, the Commonwealth’s misconduct must be “so serious as to render the 

entire trial fundamentally unfair.”6

 

3 Commonwealth v. McGorman, 489 S.W.3d 731, 741–42 (Ky. 2016) (quoting 

Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011)).

4 Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing Duncan v. 

Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)).

5 McGorman, 489 S.W.3d at 742 (citing St. Clair v. Commonwealth, 451 S.W.3d 

597, 640 (Ky. 2014)).

6 Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (quoting Stopher v. 

Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
9

“If the misconduct is objected to, we will reverse on that ground if proof 

of the defendant’s guilt was not such as to render the misconduct harmless, 

and if the trial court failed to cure the misconduct with a sufficient admonition 

to the jury.”7 However, if no objection is made, the Court “will reverse only 

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

fundamentally unfair.”8

In considering an allegation of prosecutorial misconduct in closing 

argument, the Court considers the arguments as a whole while

remembering that counsel is granted wide latitude during closing 

argument. The longstanding rule is that counsel may comment on 

the evidence and make all legitimate inferences that can be 

reasonably drawn therefrom.9

To determine whether a prosecutor’s comments amount to flagrant 

misconduct, we utilize a four-part test. The four factors to be considered are: 

(1) whether the remarks tended to mislead the jury or to prejudice the accused; 

(2) whether they were isolated or extensive; (3) whether they were deliberately 

or accidentally placed before the jury; and (4) the strength of the evidence 

against the accused.10

1. During cross-examination, the question of whether Travis and 

Juanita’s open marriage was “kind of outside the normal bounds of 

morality” was improper.

 

7 Duncan, 322 S.W.3d at 87 (citing Barnes v. Commonwealth, 91 S.W.3d 564 

(Ky. 2002); Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996)).

8 Id.

9 Murphy v. Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017) (internal citations 

and quotation marks omitted).

10 Id. at 54 (internal citations and quotation marks omitted). See also Brafman 

v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020).
10

Travis alleges multiple errors during his cross-examination by the 

Commonwealth. First, he alleges prosecutorial misconduct by the 

Commonwealth’s Attorney’s failure to “move on” as directed by the court in 

response to the defense’s objection to the question of whether an open 

marriage was “outside the normal bounds of morality.” Second, he argues that 

the trial court erred in admitting Travis’s testimony regarding Juanita’s 

infidelity, the couple’s open marriage, and Travis’s girlfriends. Third, he alleges 

prosecutorial misconduct in the form of the Commonwealth’s utterance of 

“Eww” or “Ooh” in response to Travis’s acknowledgement that he and Juanita 

had an open marriage. None of these alleged errors are properly preserved.

During the Commonwealth’s Attorney’s cross-examination of Travis, the 

Commonwealth asked Travis whether he was the father of the child Juanita

was carrying when the Commonwealth’s Attorney first met her. This meeting 

took place in the summer of 2018, almost a year after Travis and Juanita’s 

separation. Defense counsel objected, arguing the question was irrelevant. The 

court overruled the objection to the extent the question pertained to the 

relevant period of the indictment. The Commonwealth rephrased the question 

to ask whether there was an ongoing affair during the period of time at issue in 

the indictment. This exchange elicited an answer from Travis that they had an 

“open marriage” and led the Commonwealth Attorney to utter either “Eww” or 

“Ooh” and to comment, “I understand that’s kind of outside the normal bounds 

of morality.” Defense counsel objected to the latter, and the Commonwealth 

amended the statement with “Isn’t it?” 
11

The court ordered the Commonwealth’s comment/question stricken and 

directed the Commonwealth to “move on to something else[,]” implicitly 

sustaining the defense counsel’s objection not just to the form of the question 

but also to the content of the question. Despite the admonition, the 

Commonwealth continued with this line of questioning, resulting in Travis 

stating an open marriage was not outside the bounds of normal morality “in 

light of modern society.” He also readdressed the fact that he had several 

girlfriends after the separation from Juanita. Notably, the Commonwealth’s 

continued questioning in this vein generated no additional objection from 

defense counsel or comments from the court.

The first issue is whether the Commonwealth’s Attorney committed 

prosecutorial misconduct by failing to “move on” as the trial court directed.

Defense counsel’s objection to the form of the Commonwealth’s question 

regarding whether an open marriage was “outside the normal bounds of 

morality” was sustained and the statement was stricken. This is precisely the 

relief sought by the defense, and he requested no further relief. “It is well 

within the realm of valid assumption that counsel was satisfied with the court's 

admonition to the jury.”11 But the court in sustaining defense’s objection, 

ordered more than the comment be stricken. The trial court ordered the 

Commonwealth’s Attorney to “move on to something else.” Despite this 

 

11 West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) (quoting Hunter v. 

Commonwealth, 479 S.W.2d 4, 6 (Ky. 1972)); see also Rine v. Commonwealth, No. 

2002-SC-1079-MR, 2005 WL 1185205, at *6 (Ky. May 19, 2005) (“We must assume 

that defense counsel was satisfied with the relief granted.”).
12

direction, the Commonwealth continued to pursue the question, eventually 

forcing Travis to comment generally on his own morality. We find such conduct 

to be obviously improper, as the defendant’s own personal view of the morality 

of a particular lifestyle is irrelevant as to the question of guilt of the specific 

charges and the trial court clearly ordered the Commonwealth to “move on.”

We acknowledge the Commonwealth was entitled to explore Travis’s conduct,12

but we do not believe such entitlement extends to forcing Travis to opine on the 

relative morality of that conduct or to do so against the trial court’s directive.

Despite the improper question, defense counsel did not object to the rephrased 

question; therefore, we review for palpable error. In doing so, we must 

determine if the Commonwealth’s Attorney committed flagrant prosecutorial 

misconduct.

We hold the improper question represented flagrant prosecutorial 

misconduct. The question prejudiced Travis in requiring he respond with an 

assessment of his own personal morality. The question, while short in 

duration, was a focus of the Commonwealth’s cross-examination. The improper 

question was deliberately placed before the jury by the Commonwealth and the 

Commonwealth was admonished to “move on.” We find the Commonwealth’s 

Attorney’s failure to move on as directed particularly troublesome. 

Finally, we must evaluate the strength of the case against Travis. M.S.’s 

testimony was supported by the testimony of other witnesses. Craig Gonzales 

 

12 Smith v. Commonwealth, 904 S.W.2d 220 (Ky. 1995) (Stigmatization alone is 

not grounds for exclusion of relevant evidence.).
13

witnessed Travis throwing away a twin mattress before a home visit just days 

after M.S.’s initial disclosure. M.S. also testified at trial that she slept on a twin 

mattress. Dr. Sugarman’s description of how a child of M.S.’s age would likely 

express events of the type alleged to have been committed by Travis was 

consistent with M.S.’s testimony. There were no allegations or evidence of 

coaching. The defense never alleged a motive on M.S.’s part to fabricate the 

events. Lastly, the initial disclosure was made to a temporary foster parent 

with no relationship, or apparent animus, to the parties. 

The Commonwealth ably and properly called into question Travis’s 

credibility and impeached Travis’s basic contention that he never had an 

opportunity to commit the acts described by M.S. His testimony regarding 

unrealistic commute times, extreme hours, and the assertion he was never 

alone with M.S. were all reasonably questioned. In addition, as outlined above, 

the Commonwealth supported M.S.’s version of the events with testimony from 

other witnesses. In balancing the four factors, the final factor weighs heavily for 

the Commonwealth, but the prior factors all weigh in Travis’s favor. We hold 

the Commonwealth’s Attorney’s improper question was flagrant misconduct,

but we defer considering whether the misconduct rendered his trial 

fundamentally unfair until we have evaluated the closing arguments. 

The second question surrounds the Commonwealth’s Attorney’s line of 

questioning regarding Travis and Juanita’s “open marriage” and Travis’s 

testimony as to his other girlfriends. With the exception of the previously

discussed morality component, defense counsel did not object to these 
14

questions. Therefore, any possible error is unpreserved, and we review for 

palpable error under Kentucky Rule of Criminal Procedure (“RCr”) 10.26. RCr

10.26 allows this Court to review an unpreserved error if it is palpable, affects 

the substantial rights of a party, and results in manifest injustice. To 

determine if an error is palpable, “an appellate court must consider whether on 

the whole case there is a substantial possibility that the result would have 

been any different.”13 To be palpable, the error must be “easily perceptible, 

plain, obvious and readily noticeable.”14 A palpable error must be so grave that, 

if uncorrected, it would seriously affect the fairness of the proceedings.15 “It 

should be so egregious that it jumps off the page...and cries out for relief.”16

We start by noting a trial court’s administration of the scope of crossexamination is within its sound discretion17 and will only be disturbed if 

“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”18

Furthermore, we note that unlike the prior question, the Commonwealth’s 

follow-up questions related to concrete events and facts the defense introduced 

on direct examination. On direct, Travis volunteered that he and Juanita were 

 

13 Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky. 1983).

14 Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing BLACK’S LAW 

DICTIONARY (6th ed. 1995)), abrogated on other grounds by Nami Res. Co., L.L.C. v. 

Asher Land & Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018).

15 Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005).

16 Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (quoting Alford v. 

Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011) (Cunningham, J., concurring)).

17 Baze v. Commonwealth, 965 S.W.2d 817, 821 (Ky. 1997) (citing Moore v. 

Commonwealth, 771 S.W.2d 34 (Ky. 1988)).

18 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
15

in an open marriage and that he had girlfriends in Lexington after he and 

Juanita separated. As such, the prosecution is entitled to cross-examine Travis 

as to those statements, and there was no error in permitting the questions.

19

Lastly, we do not view the Commonwealth’s Attorney’s utterance of 

“Eww” or “Ooh” to represent prosecutorial misconduct. Applying the four-factor 

test, the first weighs weakly in favor of the defendant. The utterance did not 

weigh on the evidence but may have had a slight prejudice to the defendant.

Conversely, the second and third factors weigh heavily in favor of the

Commonwealth. The statement was isolated, a single and brief utterance. After 

reviewing the record, it is unclear to us whether the utterance was intentionally 

or accidently placed before the jury. As previously addressed, the fourth factor 

weighs in favor of the Commonwealth. With three of the four factors weighing 

in favor of the Commonwealth, the prosecutor’s utterance does not rise to the 

level of flagrant prosecutorial misconduct. 

2. During closing argument, the Commonwealth committed flagrant 

prosecutorial misconduct, but such misconduct did not render 

Durrum’s trial, as a whole, fundamentally unfair.

Travis asserts the Commonwealth’s Attorney’s closing argument was 

“replete with improper vouching of M.S.’s credibility.” Specifically, Travis 

contends the trial court permitted flagrant prosecutorial misconduct by not 

 

19 See, e.g., Kiper v. Commonwealth, 399 S.W.3d 736, 749 (Ky. 2012) (stating 

the Commonwealth is entitled to make reasonable arguments in response to matter 

brought up by defendant); Sanders v. Commonwealth, 801 S.W.2d 665, 677 (Ky. 1990)

(prosecutor's questions regarding defendant’s violent actions towards wife and 

confrontation with the ex-husband were in response to statements made by defendant 

on direct).
16

addressing the following Commonwealth’s Attorney’s comments: (1) “I know 

you believe this child”; (2) M.S. was “one-hundred percent believable”; and (3) 

“there wasn’t a thing that came out of her mouth that wasn’t true...it’s the 

most credible witness I ever saw; everything she told you was true.” In addition 

to the statements regarding M.S.’s credibility, Travis argues the 

Commonwealth’s Attorney’s factual misstatement of when Travis changed his 

last name unfairly implicated Travis’s credibility. Prosecutorial misconduct is 

viewed in the context of the overall fairness of the trial.20 Travis’s argument was 

not preserved by a contemporaneous objection; therefore, reversal is warranted 

only if the misconduct was flagrant and the misconduct rendered the trial 

fundamentally unfair.

21

“Closing arguments are not evidence, and prosecutors are given ‘wide 

latitude’ during closing arguments.”

22 Even with wide latitude, neither the 

prosecution nor the defense may “interject[] their personal beliefs in the 

presentation of his case.”23 While not expressing a personal belief, both the 

prosecution and defense can comment on the credibility of witnesses in closing, 

so long as such comments are drawn from the evidence presented or 

 

20 Murphy, 509 S.W.3d at 49 (citing McGorman, 489 S.W.3d at 574).

21 Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006) (quoting Barnes 

v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002)).

22 Hall v. Commonwealth, 551 S.W.3d 7, 17 (Ky. 2018) (citing Stopher, 57 

S.W.3d at 805-06); see also Murphy, 509 S.W.3d at 50.

23 U.S. v. Young, 470 U.S. 1, 8-9 (1985).
17

reasonable inferences from such evidence.

24 Counsel may respond in closing to 

arguments calling into question or supporting the veracity of a witness’s 

statements,25 but such comments by counsel may not extend to personally 

vouching for the credibility of any particular witness.26

The lack of physical evidence herein resulted in a case that came down to 

a jury determination of the credibility of M.S., Travis, and their respective 

supporting witnesses. In its closing, the defense focused on whether M.S.’s 

rendition of events was believable. Defense counsel called into question M.S.’s 

revision of the events’ frequency from “every day” to “whenever [Travis] had the 

chance.” Defense counsel also argued M.S.’s timing of the events, after work, 

during the dinner hour, was particularly suspect and that common sense said 

it really could not happen this way without someone finding out. The defense 

also emphasized that both Nicole and Sandra testified to Travis’s lack of 

opportunity given his stated work schedule, the fact “he was never alone with 

M.S.,” and that contrary to M.S.’s assertion, Travis had moved out of the 

apartment in August 2017. These arguments certainly invited a response from 

 

24 Dickerson , 485 S.W.3d at 333; See also Woodford v. Commonwealth, 376 

S.W.2d 526 (Ky. 1964) (counsel, in arguments to the jury, can draw inferences from 

facts in evidence); Wood v. Commonwealth, 56 S.W.2d 556 (Ky. 1933) (same).

25 Foley v. Commonwealth, 953 S.W.2d 924, 940 (Ky. 1997).

26 See, e.g., Armstrong v. Commonwealth, 517 S.W.2d 233 (Ky. 1974) (holding 

Commonwealth’s Attorney’s statements that he had worked with the officer a long time 

and the officer was honest and conscientious were improper); Terry v. Commonwealth, 

471 S.W.2d 730 (Ky. 1971) (prosecutor’s statement that he knew the defendant’s alibi 

witnesses were “rotten to the core” was improper); Jones v. Commonwealth, 313 Ky. 

827, 233 S.W.2d 1007 (1950) (finding the prosecutor’s statements of personal opinion 

about defendant's witnesses were improper).
18

the Commonwealth, but the question this Court is left with is whether the 

response crossed over from permissible support utilizing evidence and 

inferences to impermissibly personally vouching for M.S.’s truthfulness.

Turning to the specific closing argument comments at issue, the 

statement “I know you believe this child” is not a personal expression of the 

Commonwealth’s belief in M.S.; it was an expression of its belief that the jury 

believed M.S. Furthermore, the Commonwealth followed it up with a rendition

of facts from Travis’s testimony which the jury would be required to believe if 

they thought M.S. was untruthful. The Commonwealth focused on the dubious 

nature of Travis’s contention that it regularly took him ninety minutes to travel 

the twenty-six miles between the Frankfort and Shelbyville exits on I-64 and 

his failure to provide any corroboration of his extreme work schedule. 

Second, when the Commonwealth stated M.S. “was one-hundred percent 

credible, one-hundred percent believable,” it was not framed as the personal 

belief of the Commonwealth’s Attorney. The statement was tied to a subsequent 

listing of evidence and inferences drawn from the testimony of other witnesses.

The Commonwealth’s Attorney emphasized that Craig Gonzales witnessed 

Travis throwing away a twin mattress when he attempted to do a home visit. 

M.S. slept on a twin bed, which would seem to allow for a logical inference for 

the jury that Travis was disposing of evidence. Consistent with M.S.’s own 

testimony, Tiffany Parsons testified to M.S.’s concerns over others knowing of 

the abuse and the kind of scrutiny it would possibly bring. Parsons’s testimony 

called into question the defense’s implication that M.S. made up the charges to 
19

get attention. Dr. Sugarman testified as to what types of pain and discomfort a 

victim of M.S.’s age would experience, and M.S. testified to pain and discomfort 

consistent with that description. Each of these supported the statement that 

M.S. was totally credible.

In addition to the prosecutor’s support of M.S.’s testimony, he made a 

factual misstatement regarding when Travis took Juanita’s last name. In 

closing, the Commonwealth’s Attorney stated, “he started using another name 

by the time this case started.” The obvious implication was that Travis changed 

his last name in some effort to avoid prosecution. Nicole’s actual testimony was 

that Travis took Juanita’s last name “when they married.” The defense did not 

object to the Commonwealth’s misstatement. We must determine whether the 

prosecutor’s actions in making this statement amounted to flagrant

prosecutorial misconduct, applying the aforementioned four-factor test.27 This

statement may have prejudiced Travis through the implication that he changed

his name in response to the case against him. However, the statement was 

isolated, one sentence in the Commonwealth’s closing and not dwelled upon 

thereafter. It was part of the Commonwealth’s closing, but whether the 

phrasing was intentional or merely the Commonwealth’s unintentional 

misstatement is unclear. Further, the trial was relatively short, and the jury 

heard Nicole herself testify to the issue less than ninety minutes earlier. The 

evidence against Travis was strong, especially given the highly credible 

 

27 Murphy, 509 S.W.3d at 54.
20

testimony of M.C. After weighing the four factors, we conclude that the 

Commonwealth's misstatement as to when Travis took Juanita’s name was not

flagrant misconduct.

That leaves the Commonwealth’s Attorney’s final questionable statement

regarding M.S.’s credibility:

“there wasn’t a thing that come out of her mouth that wasn’t true. 

Not a thing. I never saw a face like that before. Trust that. Put little 

girls like that, that little girl on the stand, I never had one like that. 

It’s the most credible witness I ever saw. Everything she told you is 

true.”

The statement here is readily distinguished from the Commonwealth’s earlier 

statements. The Commonwealth’s Attorney inserted himself into the question of 

veracity, specifically by stating, “I never had one like that. It’s the most credible 

witness I ever saw.” He was personally vouching for M.S.’s truthfulness and 

veracity and did so, not by supporting it with other evidence, but by reiterating 

what M.S. said on the stand. The prosecution and defense of sexual offenses is 

difficult and emotional, however attorneys for both sides must refrain from 

acting outside the bounds of the rules to ensure fair trials.

We acknowledge that simply using the phrase “I never” or “I ever saw” is 

not prosecutorial misconduct if adequately supported by evidence or if the

phrases were not used intentionally to bolster the credibility of the witness.28

 

28 Padgett v. Commonwealth, 312 S.W.3d 336, 353 (Ky. 2010) (holding that 

simply using the words “I think” or “we think” in closing is not misconduct where 

there is no suggestion that the phrases were used to attempt to inflame the jury, 

bolster credibility of witnesses by personally vouching for them, or to make the jury 

consider anything other than evidence presented at trial).
21

The Commonwealth’s Attorney supported his statement through an appeal to 

the jury’s common sense that M.S.’s testimony was completely consistent with 

the language a witness of M.S.’s age would use in describing such traumatic 

events. Even with this nod to the evidence, it is apparent to us the 

Commonwealth’s Attorney’s statement was an effort to improperly imbue M.S. 

with the prestige of the Commonwealth. Finding the statement to be improper,

and given that the issue is unpreserved, we must turn to the question of 

whether that statement alone amounts to flagrant misconduct warranting a 

new trial.

Turning again to our four-part test for flagrant prosecutorial misconnect, 

we view the improper statement in light of the whole trial.

29 The first factor 

weighs in Travis’s favor. There is no question the Commonwealth’s improper 

vouching for M.S. prejudiced Travis in light of a case that turned in large part

on the relative credibility of M.S. Looking to the second factor, the improper 

statement itself was isolated, but admittedly part of a greater Commonwealth 

narrative dwelling on the relative credibility of the two principals. Third, the 

statement was deliberately placed in front of the jury. Unlike the earlier 

utterance of “Eww” or “Ooh,” it was not spontaneous; rather, it appeared as 

part of a prepared closing argument. 

Finally, as discussed in our analysis of the Commonwealth’s improper 

morality question, we must evaluate the strength of the case against Travis. 

 

29 See Murphy, 509 S.W.3d at 50; Brafman, 612 S.W.3d at 861.
22

M.S. was supported by the previously described testimony of Craig Gonzales, 

Dr. Sugarman, and Tiffany Parsons. There were no allegations or evidence of 

coaching or evidence of motive for M.S. to fabricate the events. As noted 

previously, the Commonwealth ably and properly called into question Travis’s 

credibility and impeached Travis’s basic contention that he never had an 

opportunity to commit the acts described by M.S. In balancing the four factors, 

we hold the Commonwealth’s Attorney’s statement was flagrant misconduct

with the first three factors all weighing heavily for Travis, while only the last,

the strength of the evidence against the accused, weighs in favor of the

Commonwealth. 

Addressing the second part of the test for whether flagrant misconduct

requires reversal, we hold that while the Commonwealth’s morality question 

and closing statement represented misconduct, they did not render Travis’s 

trial fundamentally unfair and do not warrant reversal.

30 We acknowledge even 

with the substantial impeachment of Travis’s testimony, a reasonable juror 

could have found M.S.’s statements alone insufficient to render a guilty verdict 

absent the Commonwealth’s improper argument. But the jury did not have to 

rely on M.S.’s statements alone. Craig Gonzales, Tiffany Parson, and Dr. 

Sugarman all testified in ways that reasonably permitted the jury to find M.S. 

much more credible than Travis. We concede that it was improper for counsel 

to utilize an unauthorized means of attesting to M.S.’s credibility, but even if 

 

30 Matheney, 191 S.W.3d at 606 (quoting Barnes, 91 S.W.3d at 568).
23

unauthorized, we must be persuaded it had a sufficient prejudicial effect to 

render Travis’s trial unfair.

31 We hold that even absent the Commonwealth’s 

improper argument and question, there was not a “substantial possibility that 

the result would have been any different.”32 Although we admonish the 

Commonwealth from behaving in this manner in the future, we cannot hold 

that the Commonwealth’s improper comments during its closing argument or 

question during cross-examination undermined the fairness of Travis’s trial as 

a whole. 

B. Failure to renumber counts was not error.

Prior to the start of the trial, count one of Travis’s indictment was 

dismissed. Despite this, when the Commonwealth read the indictment to the 

jury, it began stating “count two” and continued through five. Furthermore, 

during the guilt phase, the court made a single reference to “count three” when 

reading jury instruction four, and the jury instructions and verdict forms 

themselves retained the “count two” through “count five” language. Due to the 

dismissal of count one, Travis contends the counts should have been 

renumbered in any references to the jury and failing to do so resulted in a jury 

left to speculate as to what count one consisted of and why it was not before 

them. This argument is unpreserved, and Travis requests we review the issue 

for palpable error under RCr 10.26.

 

31 Armstrong, 517 S.W.2d at 236 (concluding improper bolstering of police 

officer’s testimony was insufficient to render trial unfair).

32 McIntosh, 646 S.W.2d at 45.
24

Travis acknowledges he can find no case law directly supporting his

argument. The closest cases on point deal with exposing a jury during the 

penalty phase to evidence of amended or dismissed charges. The 

Commonwealth argues that the trial court’s failure to renumber the counts of 

the indictment was not an error, and even if it were, the error was harmless.33

Travis cites Blane v. Commonwealth for the proposition that “introducing 

the original charges of Appellant’s prior convictions constitutes palpable 

error.”34 First, we note that in Blane, the introduction was testimony as to the 

nature and severity of the actual charge that had been amended down.

35 In the 

defense’s remaining cited cases, this distinguishing feature is the same – the 

jury saw the actual nature and severity of the dismissed or amended charges.

36

In the present case, the jury did not hear the nature or severity of the 

missing count. In fact, the charge that was contained in count one was never 

mentioned; the defense finds it only conspicuous by its absence. The issue was 

so subtle that from the dismissal two days prior to trial and through the entire 

trial, defense counsel never raised the issue of the count renumbering. 

 

33 See U.S. v. Sivils, 960 F.2d 587, 596-97 (6th. Cir. 1992) (holding trial court’s 

reference to count that had been severed from the trial resulted in no prejudice and 

constituted harmless error).

34 364 S.W.3d 140, 153 (Ky. 2012).

35 Id.

36 Stansbury v. Commonwealth, 454 S.W.3d 293 (Ky. 2015) (trial court erred in 

permitting introduction of an exhibit during sentencing which showed three counts of 

first-degree wanton endangerment that had been dismissed); Robinson v. 

Commonwealth, 926 S.W.2d 853 (Ky. 1996) (court erred in permitting introduction of a 

printout during sentencing which showed both prior convictions and dismissed 

charges).
25

Palpable error requires the error to be “easily perceptible, plain, obvious and 

readily noticeable.”37 Travis may speculate that the jury had questions about 

the dismissed count and held it against him, but such speculation is not so 

apparent “that it jumps off the page...and cries out for relief.”38 We hold that 

the simple failure to renumber the counts, where no information is imparted on 

the jury as to the nature and severity of the missing count, is no error. 

III. CONCLUSION

For the foregoing reasons, Travis Durrum's convictions for first-degree 

criminal abuse, first-degree rape, first-degree sexual abuse, two counts of firstdegree sodomy, and the corresponding seventy-year prison sentence are 

affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Kristin Leigh Conder

Assistant Attorney General

 

37 Burns, 957 S.W.2d at 222 (citing BLACK’S LAW DICTIONARY (6th ed. 1995)).

38 Chavies, 374 S.W.3d at 323 (quoting Alford, 338 S.W.3d at 251

(Cunningham, J., concurring)).