RENDERED: FEBRUARY 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0876-MR

RICHARD TURPIN APPELLANT 

v. 

APPEAL FROM HENDERSON CIRCUIT COURT

HONORABLE KAREN LYNN WILSON, JUDGE

ACTION NO. 12-CR-00164 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

KRAMER, JUDGE: Richard Turpin appeals from an order of the Henderson 

Circuit Court denying his request for relief pursuant to RCr1 11.42. We affirm.

The factual and procedural history of this matter was set forth in

Turpin v. Commonwealth, No. 2013-CA-002016-MR, 2015 WL 394202 (Ky. App. 

Jan. 30, 2015):

 

1 Kentucky Rule of Criminal Procedure.
-2-

On September 11, 2012, a Henderson County grand jury 

indicted Turpin for rape in the first degree, sodomy in the 

first degree, kidnapping in the first degree, and being a 

persistent felony offender (PFO) in the second degree. A 

trial on these charges took place over three days 

beginning on September 25, 2013, at which time the 

following information came to light.

Turpin and the victim met in May of 2012 on an online 

dating website. As their relationship developed, Turpin 

and the victim emailed regularly and began to see each 

other routinely in the weeks leading up to July 21, 2012. 

On that date, according to plans they made in the days 

before, Turpin and the victim left Turpin’s residence and

went to dinner at a local restaurant. After dinner, Turpin 

left the restaurant without the victim. Turpin testified 

that this was due to a disagreement with the victim about 

where to go next. Too inebriated to drive herself, the 

victim called a friend, Larry Brooks, to drive her to 

Turpin’s home and collect her belongings.

After letting herself into Turpin’s home, the victim 

confronted Turpin for stranding her at the restaurant. As 

the victim prepared to leave, she asked Turpin for certain 

personal items that she had asked him to carry with him 

to the restaurant. Turpin refused. The victim attempted 

to leave; however, Turpin took her car keys from her. A 

physical altercation ensued in which Turpin restrained 

the victim, the victim scratched Turpin’s face with her 

fingernails, and, according to the victim, Turpin 

threatened to kill her if she did so again. Turpin refuted 

this, stating that he got “stern” with the victim about 

driving while intoxicated, and that a “scuffle” occurred 

only because he tried to stop her from driving home.

Citing her fear of Turpin, the victim stopped physically 

resisting him as he continued restraining her. The victim 

stated that Turpin then took her to the bedroom and 

repeatedly forced her to engage in oral, vaginal, and anal 

intercourse over the course of several hours. She 
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complied with Turpin’s demands, stating at one point that 

she “was too afraid to do anything. . . . I just wanted to 

get it done . . . and hope to survive.” Throughout the 

incident, Turpin continued to prevent the victim from 

leaving the bedroom, or to monitor her movements if she 

did leave the bedroom. The victim stated that Turpin 

even accompanied and observed her in the restroom.

After several hours, the victim feigned chest pain and 

convinced Turpin to let her leave. She drove away from 

the home and once again called Brooks to meet her at a 

store. When Brooks arrived, the victim was extremely 

upset and Brooks called the police. After the victim told 

officers what occurred at Turpin’s home, an officer 

transported her to the hospital in Henderson where Dr. 

Neil Troost conducted a physical examination of her.

Dr. Troost’s examination revealed abrasions and bruising 

to the victim’s lip, arms, wrist, and shin. The victim’s 

urethra was reddened and swollen, a fact which Dr. 

Troost testified was attributable to “repeated trauma.” 

Dr. Troost also observed that there was a fresh skin tear 

to the victim’s anus and bruising to her sphincter. He 

attributed these injuries to forced penetration.

Following the close of proof and deliberations, the jury 

found Turpin guilty of rape, sodomy, and kidnapping, but 

not guilty of being a PFO. 

Id. at *1-2.

This Court affirmed Turpin’s conviction. In August 2015, Turpin 

filed a pro se motion pursuant to RCr 11.42 alleging ineffective assistance of trial

counsel. He filed numerous supplements to the motion and the trial court 

eventually appointed counsel to Turpin. Counsel supplemented Turpin’s motions 

and provided two additional grounds for ineffective assistance of trial counsel: 
-4-

failure to provide adequate advice on jury instructions and effect of cumulative 

errors. The trial court held an evidentiary hearing and entered an order which 

denied relief to Turpin after addressing all thirty-nine errors he claimed were 

committed by his trial counsel. This appeal followed. 

We review a trial court’s denial of an RCr 11.42 motion as to whether 

the denial constituted an abuse of that court’s discretion. Bowling v. 

Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). Abuse of discretion is defined 

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

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

Because the trial court conducted an evidentiary hearing on the 

motion, its findings of fact will not be set aside unless they are clearly erroneous. 

CR2 52.01; Adams v. Commonwealth, 424 S.W.2d 849, 851 (Ky. 1968). Findings 

of fact are not clearly erroneous if supported by substantial evidence. Black Motor 

Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). 

 Although Turpin attributed approximately thirty-nine errors to his trial 

counsel, the only issue on appeal is whether trial counsel provided ineffective 

assistance due to what Turpin claims was failure to seek lesser included offenses in 

the jury instructions. Specifically, Turpin argues that he was entitled to 

 

2 Kentucky Rule of Civil Procedure.
-5-

instructions for the lesser included offenses of first degree sexual abuse, sexual 

misconduct, and unlawful imprisonment in the first and second degrees. We 

disagree.

 To prevail under RCr 11.42, the defendant must show that trial

counsel’s performance was deficient by demonstrating counsel made errors so 

serious that counsel was not functioning as the “counsel” guaranteed the defendant 

by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064, 80 L. Ed. 2d 674 (1984). The defendant must also show that the 

deficient performance prejudiced the defense by demonstrating that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose 

result is reliable. Id. Unless a defendant makes both showings, it cannot be said 

that the conviction resulted from a breakdown in the adversary process that renders 

the result unreliable. Id. The proper standard for attorney performance is that of 

reasonably effective assistance and the inquiry must be whether counsel’s 

assistance was reasonable considering all of the circumstances. Id. A court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy. Id. at 689.
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We first note that Turpin filed a designation of record pursuant to CR 

75.01 that designated, among other items, video recordings from his trial and the 

evidentiary hearing on his RCr 11.42 motion. However, although the trial 

recordings are contained in the record, the video recording of the evidentiary 

hearing that took place on October 10, 2018, is not in the record before us. This is 

despite the fact Turpin filed a motion to supplement the record with this Court on 

November 4, 2020, to include the evidentiary hearing, which was granted by order 

of this Court entered November 30, 2020. Court of Appeals records show that a 

supplemental compact disc was filed on December 8, 2020. There are four 

compact discs total in the record before us, none of which contain the evidentiary 

hearing.3 

On appeal, the trial court’s findings of fact will not be 

disturbed unless they are clearly erroneous. CR 52.01. 

When the evidence is not presented for review, this court 

is confined to a determination as to whether the pleadings 

support the judgment and on all issues of fact in dispute 

we are required to assume that the evidence supports the 

findings of the lower court.

McDaniel v. Garrett, 661 S.W.2d 789, 791 (Ky. App. 1983) (internal citation 

omitted).

 

3 One of the compact discs does contain a hearing labeled October 10, 2018, but the recording is 

only a few seconds in length.
-7-

Thus, without the complete record, we must assume its contents

support the circuit court’s order. Id. 

This Court has repeatedly held that it is an appellant’s responsibility 

to ensure that we have the complete record for our review. 

In Hatfield v. Commonwealth, 250 S.W.3d 590 (Ky.

2008), the Supreme Court of Kentucky discussed the 

appellant’s burden to present a complete record to 

support his appeal:

Appellant has a responsibility to present a 

“complete record” before the Court on appeal. 

Steel Technologies, Inc. v. Congleton, 234 S.W.3d 

920, 926 (Ky. 2007). “Matters not disclosed by 

the record cannot be considered on appeal.” 

Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky.

1952); see also Wolpert v. Louisville Gas & Elec.

Co., 451 S.W.2d 848 (Ky. 1970) (holding that our 

predecessor court could not review contentions of 

prejudice before the jury when the only basis for 

the argument was the Appellant’s brief, because 

review is confined to the record). Appellant may 

not raise allegations of error on appeal “based 

entirely on a silent record.” Commonwealth v.

Thompson, 697 S.W.2d 143, 144 (Ky. 1985). 

Further, “[i]t has long been held that, when the 

complete record is not before the appellate court, 

that court must assume that the omitted record

supports the decision of the trial court.” Id. at 145. 

Hatfield, 250 S.W.3d at 600-01. 
-8-

Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 145 (Ky. App. 2012); see also, K.M.E. 

v. Commonwealth, 565 S.W.3d 648, 654 (Ky. App. 2018).

4

 Regarding Turpin’s allegation that his trial counsel failed to include 

lesser included offenses in the jury instructions, the trial court made the following 

findings:

Fourth, Turpin argues that [trial counsel] erred by failing 

to request instructions on lesser included offenses. 

During the evidentiary hearing, [trial counsel] testified 

that it was his practice to discuss lesser included offenses 

with clients. Turpin testified that he wanted the standard 

for a guilty verdict to be high, and so only wanted 

instructions on the highest offenses. He further stated he 

may have had “tunnel vision” about lesser included 

offenses and failed to think about the long term 

consequences. This is supported by the record at trial. 

During the trial, [trial counsel] advised the Court that 

Turpin gave him specific instructions not to include 

lesser included offenses in the jury instructions. 

(9/27/2013 9:06 a.m.)

After a review of the record, the Court does not believe 

that [trial counsel] made an error outside the range of 

reasonable professional assistance, or that there was any 

error that affected the ultimate result of the trial. The 

evidence on one side was that [the victim] was forcibly 

raped and sodomized; the evidence on the other was that 

 

4 We also note that Turpin filed three separate motions for extensions of time to file his brief 

with this Court (filed November 27, 2019; January 29, 2020; and January 31, 2020), which were 

granted. Turpin also sought to supplement the record before this Court on three separate 

occasions, and each motion was granted. Similarly, the Commonwealth requested extensions of 

time to file a brief on August 14, 2020, and September 16, 2020. Not only have these motions 

for extensions of time by both parties caused this case to languish on appeal for nearly two years

before it was assigned to this merits panel, but this Court never received the complete record 

despite at least three motions to supplement the record.
-9-

all acts were consensual. Based on this evidence, there 

would seem to be little room for lesser included offenses.

 Review of the video recording of Turpin’s trial supports the trial 

court’s finding that Turpin specifically requested that trial counsel not include 

lesser included offenses in the jury instructions. Moreover, because we must 

conclude that the evidentiary hearing that is not in the record before us further 

supported the trial court’s findings, we discern no error. Turpin failed to meet his 

burden under RCr 11.42 for ineffective assistance of counsel. Accordingly, we

affirm the Henderson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Kara Stinson Lewis

LaGrange, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Todd D. Ferguson

Assistant Attorney General

Frankfort, Kentucky