RENDERED: MAY 7, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1803-MR

JASON BOWLES APPELLANT

APPEAL FROM WARREN CIRCUIT COURT

v. HONORABLE STEVE ALAN WILSON, JUDGE

ACTION NO. 18-CR-00363

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, JONES AND KRAMER, JUDGES.

KRAMER, JUDGE: On March 28, 2018, Jason Bowles was indicted in Warren 

Circuit Court on two charges of first-degree rape1and one charge of first-degree 

sexual abuse by forcible compulsion2against his second-cousin, A.C., a minor. 

 

1

See Kentucky Revised Statute (KRS) 510.040(1)(a).

2 KRS 510.110(1)(a).
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Following a jury trial, Jason was ultimately convicted of one charge of rape, as 

well as the charge of sexual abuse, and he was consequently sentenced to eleven 

years’ imprisonment pursuant to a final judgment of November 12, 2019. Jason

now appeals, asserting he was entitled to a directed verdict due to insufficient 

evidence; a mistrial due to what he believes was the impermissible admission of 

prior bad acts evidence against him; or that he is entitled to a new trial due to 

various other evidentiary errors discussed below. Upon review, we affirm.

This matter involves a roughly two-month period between the end of 

December 2015 and the beginning of February 2016 when Jason, his wife Holly, 

and his two young daughters moved from Alabama to temporarily reside with the 

family of Jason’s cousin, R.G. R.G. lived in a four-bedroom house with her 

husband, Chris; her then-thirteen-year-old daughter and the victim herein, A.C.;

her daughter, N.G., who was eleven years old at the time; and her son, J.G., who 

was then about five years old. While they were there, Jason and his family slept in 

A.C.’s bedroom, and A.C. slept on the couch in the family room. On or about 

January 20, 2016, however, Holly left R.G.’s house with Jason’s two daughters and 

went to live at her mother’s house; Jason slept on the couch; and A.C. returned to 

sleeping in her own bedroom. In early February of that year, Jason then left R.G.’s 

house to resume living with his wife and daughters, and they left Kentucky.
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The charges in this matter stemmed from A.C.’s allegations that Jason

began raping and sexually assaulting her shortly after Jason’s daughters and Holly 

left the home on January 20, 2016. According to A.C., the first rape – and the 

focus of Count I of the indictment – occurred in her bedroom in the early morning 

hours on a date between January 20 and January 25. To summarize her 

recollection of the event, her room was dimly illuminated only by her television 

set, which she kept on at night to help her sleep. She awoke when Jason came into 

her room, walked over to her bed, and unbuckled his pants. He pulled the covers 

off her, pulled her pants down, scooted her to the edge of the bed, and put what she 

believed was his penis inside of her. When Jason started to take his pants down, 

A.C. said, “no, stop.” Jason put his hand over her mouth, told her it was “okay,” 

and held his hand there the entire time. A.C. recalled being scared and that it “hurt 

really bad.” She alleged she told no one about the incident, at least not 

immediately after it occurred, because Jason threatened to hurt her if she did.

The sexual abuse – and the focus of Count II of the indictment –

allegedly occurred late on January 26, 2016. On that date, R.G. had gone to the 

emergency room and was spending the night at the hospital after experiencing 

chest pains at work. Around midnight, she telephoned A.C., asking A.C. to bring 

her a blanket and some clothes and to have Jason give her a ride there. After they 

brought her things, along with food from Waffle House, R.G. asked A.C. to stay 
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with her overnight. However, Jason offered to bring A.C. back to the hospital the 

following morning, and he and A.C. left. According to A.C., and as discussed in 

more depth below, Jason then sexually abused her in his truck on the drive home.

 The second rape – and the focus of Count III – allegedly occurred on 

January 27, 2016, when Jason and A.C. returned from the hospital around 3:00 or 

4:00 a.m. This incident is likewise discussed in more depth below.

In April 2017, A.C. informed R.G. of these three incidents. R.G.

contacted the authorities. Following an investigation, Jason was indicted as set 

forth above. He was eventually arrested on June 27, 2018. And, following a jury 

trial from September 11, 2019 through September 13, 2019, the jury acquitted 

Jason of Count I, but convicted him of Counts II and III. This appeal followed.

I. DIRECTED VERDICT

We begin with Jason’s assertion that he was entitled to a directed 

verdict on Counts II and III due to insufficient evidence. In Commonwealth v. 

Benham, 816 S.W.2d 186 (Ky. 1991), the Kentucky Supreme Court delineated the 

standard for handling a criminal defendant’s motion for a directed verdict as 

follows:

On motion for directed verdict, the trial court must draw 

all fair and reasonable inferences from the evidence in 

favor of the Commonwealth. If the evidence is sufficient 

to induce a reasonable juror to believe beyond a 

reasonable doubt that the defendant is guilty, a directed 

verdict should not be given. For the purpose of ruling on 
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the motion, the trial court must assume that the evidence 

for the Commonwealth is true, but reserving to the jury 

questions as to the credibility and weight to be given to 

such testimony.

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

Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002). The standard for 

appellate review of a denial of a motion for a directed verdict alleging insufficient 

evidence dictates that if under the evidence as a whole it would not be clearly 

unreasonable for a jury to find the defendant guilty, he is not entitled to a directed 

verdict of acquittal. Benham, 816 S.W.2d at 187; Holbrooks v. Commonwealth, 85 

S.W.3d 563, 569 (Ky. 2002).

In this vein, Jason notes that Counts II and III each required the jury, 

as instructed, to find that he raped or sexually abused A.C. through “forcible 

compulsion.” His argument is that no such evidence was adduced. In his brief, he 

describes the extent of the evidence relevant to those claims, which he deems 

inadequate in this regard, as follows:

AC testified about two incidents that happened in the 

early morning hours on January 27, 2016. The first 

which was the basis of the sex abuse conviction allegedly 

happened in [Jason’s] truck on the way back from the 

hospital after bringing AC’s mother food, clothing and a 

blanket. AC testified he started tugging at her pants. AC 

said she told [Jason] to leave her pants alone. He told her 

to lay down and she said no but he said it more 

aggressively and “I was scared of him; so I lay down 

with my head in his lap and my feet toward the passenger 

door. He pulled my pants down and started to put his 
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fingers inside me.” She said she was not going to do 

anything so he just kept putting his finger inside her. She 

did not try to get away because she knew that he was 

bigger than her and could make her do whatever. She 

realized at some point they were in back roads and she

got mad and told him to take her home.

When they got home, AC testified she yelled at him 

outside and hit him, and he was getting upset saying 

“stop”, “let’s go inside”, “the neighbors were going to 

hear.” AC got really angry, slammed the door and 

stomped to her room. [Jason] pulled her out of her bed 

and kind of dragged her to the couch and said she was 

sleeping there because he was really tired. She did not 

feel like fighting any more. She woke up on the couch to 

find her pants were down and [Jason] was getting on the 

couch with her. He was laying on the opposite way with 

his legs towards her, and he “scooted down” and put his 

penis inside her. AC explained she did not remember a 

whole lot from that time probably because she had just 

woken up and was still kind of asleep. She did not 

remember how long it lasted. She did not say anything to 

him when he was doing this on the couch because at that 

point she did not feel like fighting with him or anything.

(Internal record citations omitted.)

However, Jason’s recitation of the evidence omits salient details and 

warrants further elaboration. We begin by noting that his discussion of the 

evidence is limited to “the early morning hours on January 27, 2016.” His

assumption appears to be that because the jury found him “not guilty” of Count I –

which asked the jury to determine whether he had committed first-degree or 

second-degree rape against A.C. on one occasion between January 20, 2016, and 

January 25, 2016 – the jury was therefore estopped from considering any evidence 
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from January 20, 2016 through January 25, 2016 in conjunction with Counts II and 

III.

However, there is no such rule of estoppel. To the contrary, 

“[c]redibility and weight of the evidence are matters within the exclusive province 

of the jury.” Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999) (citations 

omitted). And, jurors are free to believe parts and disbelieve other parts of the 

evidence including the testimony of each witness. Id. In other words, it is true that 

within the meaning of the instructions provided, the jury found reasonable doubt 

regarding A.C.’s claim that Jason raped her on an occasion between January 20, 

2016, and January 25, 2016. But, nothing precluded the jury from inferring from 

the evidence that inappropriate sexual conduct apart from what had been charged 

had indeed occurred in that timeframe; and, likewise, nothing precluded the jury 

from lending credence to A.C.’s testimony regarding what happened after it 

occurred, and prior to January 27, 2016:

COMMONWEALTH: After the night that he came in 

your room, what happened the next day, if you 

remember?

A.C.: I tried to kind of stay away from him. 

COMMONWEALTH: Did he say anything to you about 

this after that night?

A.C.: He told me that if I told anyone that he would hurt 

me and that, um, I knew that if I told anyone, that he 

would go to jail and that he didn’t want that.
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COMMONWEALTH: And did you believe him, that he 

would hurt you?

A.C.: Yes.

In sum, A.C. testified that shortly before January 27, 2016, Jason had 

threatened her with physical harm if she told anyone about his illicit conduct 

toward her. A.C. testified she believed his threat, particularly considering their 

difference in size and strength; as Jason himself concedes, “he was bigger than her 

and could make her do whatever.”3 And, during cross examination, A.C. testified 

Jason’s threat of harm had a continuing effect upon her:

DEFENSE: I don’t know. Really? If someone really 

brutalized you and raped you, you wouldn’t get anywhere 

near him, would you?

A.C.: I was scared of him.

DEFENSE: So, you’re so scared of him that you put 

yourself in his truck?

A.C.: If I started acting funny around him, somebody 

would’ve noticed I was acting funny around him and he 

threatened me if I told someone.

The jury was permitted to view the evidence regarding Jason’s actions 

during Counts II and III in conjunction with, rather than divorced from, the 

 

3 When A.C. testified on September 12, 2019, she was seventeen years old and 5’3” tall. She 

testified that in January 2016, when she was thirteen years old, “I was not as tall back then, and I 

was not 100 pounds.” By contrast, Jason testified that in January 2016, when he was 36 years 

old, he “probably weighed 178 pounds” and was 6’3.”
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evidence of Jason’s prior threat of harm toward A.C. With that in mind, we turn to 

more of the specifics of A.C.’s testimony regarding Count II:

COMMONWEALTH: When you were in the truck, did 

you say anything while he was touching you?

A.C.: Yes. I told him that I didn’t want him to do it, that 

I didn’t know why he was doing it.

. . .

COMMONWEALTH: When you were in the truck and 

you said he was touching you, do you think his finger 

went inside of you?

A.C.: Yes.

COMMONWEALTH: Was that inside of your vagina?

A.C.: Yes.

COMMONWEALTH: When this was happening, do 

you remember if he said anything to you?

A.C.: He had asked me to do stuff to him, and I said no, 

and he got upset. But I, I wasn’t going to do anything. 

And so, he just kept putting his finger inside me.

COMMONWEALTH: Did you try to get away?

A.C.: Not much, that time, because I knew that he was 

bigger than me and he could make me do whatever.

Furthermore, regarding Count III, it is a mischaracterization for Jason 

to represent A.C. testified that, during the encounter, “[s]he did not say anything to 

him when he was doing this on the couch because at that point she did not feel like 
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fighting with him or anything.” Rather, her specific testimony on that point was as 

follows: 

COMMONWEALTH: When he was doing these things 

on the couch, did you say anything to him?

A.C.: No.

COMMONWEALTH: Why not?

A.C.: Because at that point, I didn’t feel like fighting 

would do anything.

(Emphasis added.)

The element of “forcible compulsion” relevant to the charged offenses 

at issue in this matter is defined in KRS 510.010(2) as follows:

[P]hysical force or threat of physical force, express or 

implied, which places a person in fear of immediate 

death, physical injury to self or another person, fear of 

the immediate kidnap of self or another person, or fear of 

any offense under this chapter. Physical resistance on the 

part of the victim shall not be necessary to meet this 

definition[.]

Furthermore, “forcible compulsion” does not require violence or 

duress or resistance by the victim. Gibbs v. Commonwealth, 208 S.W.3d 848, 856 

(Ky. 2006) (discussing statutory amendments in 1988 and 1996 eliminating any 

requirement that the victim resist her attacker and holding that, in that case, the 

defendant’s “act of taking [the victim’s] hand and placing it on his penis” satisfied 

the physical force element, at least for the purpose of a directed verdict motion). 
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See also Gordon v. Commonwealth, 214 S.W.3d 921 (Ky. App. 2006) (holding that

testimony to the effect that the defendant pushed and held apart the twelve-yearold victim’s legs in the course of sodomizing her satisfied, for directed verdict 

purposes, the “forcible compulsion” requirement). Here, considering this 

precedent, or alternatively considering the evidence through the lens of what A.C. 

testified was her continued fear created by Jason’s threat of harm prior to those two 

episodes, a reasonable juror who believed A.C.’s testimony to be credible could 

have concluded that Jason sexually abused and later raped A.C. by forcible 

compulsion as set forth in Counts II and III. Accordingly, we find no error in the 

trial court’s refusal to grant Jason a directed verdict in those respects.

II. MISTRIAL

Next, Jason argues the trial court erred by failing to declare a mistrial 

based upon what he asserts was the cumulative prejudicial effect – which he 

believes was evinced by a question from the jury during its deliberations – of three 

testimonial statements from two witnesses. The first two of these statements are 

italicized below and occurred during the Commonwealth’s direct examination of 

R.G., A.C.’s mother:

COMMONWEALTH: [R.G.], I know that you said you 

have three children. Have you ever talked to your 

children about the difference between, like, a “good” 

touch and a “bad” touch?

[R.G.]: Yes.
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COMMONWEALTH: And have any of your kids ever 

told you that they were touched in a bad way?

[R.G.]: Yes.

DEFENSE: I’m gonna object, your honor.

COURT: Are we talking about [A.C.]?

COMMONWEALTH: Yes.

COURT: Is she gonna testify?

COMMONWEALTH: She is.

COURT: I’ll overrule it.4

COMMONWEALTH: Um, which one of your children 

was it who told you that?

[R.G.]: [A.C.]

COMMONWEALTH: And do you remember when that

was that she told you?

 

4

In an unrelated argument, Jason asserts he is entitled to a new trial because, in his view, what 

R.G. related regarding what A.C. told her about how he had “touched” A.C. “in a bad way” 

qualified as inadmissible hearsay and improper corroboration of A.C.’s version of events. We 

disagree. R.G. did not relate this statement to prove the truth of the matter asserted (i.e., that 

Jason did touch A.C.); indeed, she repeatedly testified during her examination that she had no 

personal knowledge regarding the truth of anything A.C. related to her regarding her alleged 

encounters with Jason. Rather, A.C.’s delay in telling anyone about her alleged encounters with 

Jason until early 2017 was a point of issue in this matter; and, from the context of this exchange, 

it is evident R.G. related A.C.’s statement to illustrate why the police were not contacted about 

this matter until early 2017 – a non-hearsay purpose. Moreover, as the trial court indicated when 

overruling Jason’s objection as set forth above, R.G.’s testimony was at worst merely cumulative 

of A.C.’s properly-admitted testimony, and thus harmless error. See Kentucky Rule of Criminal 

Procedure (RCr) 9.24.
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[R.G.]: It was back, I don’t remember exactly when she 

told me, like, exact date or anything like that, I’m not 

good with dates, so, but I don’t remember no exact date.

COMMONWEALTH: Do you remember if it was the 

summertime or wintertime?

[R.G.]: It was, it was cold. She told me, I didn’t smoke 

in my house. She came out to the garage where I was 

smoking, which I have a heater out there, so I was sitting 

in front of my heater, so I’m assuming it was cool.

 

COMMONWEALTH: And what did she, who did she 

tell you had done this to her?

[R.G.]: Jason.

COMMONWEALTH: And did she give you a time that 

it had occurred?

[R.G.]: She had told me when he first had touched her, 

and then –

DEFENSE: Objection. Never mind.

[R.G.]: She proceeded to go on about more that had 

happened and what all he had done. 

COMMONWEALTH: Um, do you think that that was in 

2017, do you remember how old [A.C.] was at that time?

[R.G.]: Yeah, it was probably about 2017.

COMMONWEALTH: Okay. And did she give you a 

time of when it had happened, if it had been – 

[R.G.]: She, the first initial touch, she told me what, like, 

there was a birthday party that day.

COMMONWEALTH: Okay, so –
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DEFENSE: Objection, your honor. May we approach?

COURT: Yes.

. . .

COMMONWEALTH: What was the next thing she told 

you happened, or when, I guess?

[R.G.]: The day that she told me it had first initially, like 

when he first physically touched her was –

COMMONWEALTH: Let’s stay away from that and 

talk about –

DEFENSE: Your honor, objection. May we approach?

COURT: Sure.

The third testimonial statement Jason found objectionable is italicized 

below and occurred during the Commonwealth’s direct examination of Andrew 

Sikes,

5 A.C.’s former boyfriend:

COMMONWEALTH: When you all were dating, was 

there ever a time that [A.C.] shared something bad that 

had happened with her?

SIKES: Yes.

COMMONWEALTH: Um, who did she tell you did 

those things?

SIKES: Jason Bowles.

 

5 Throughout their respective briefs, Jason and the Commonwealth continuously refer to this 

witness as “Andrew Sykes.” 
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COMMONWEALTH: And what did she tell you 

happened?

SIKES: Uh, he told, she told me that he started out by 

touching her, and then it eventually moved –

DEFENSE: Objection, your honor.

COURT: Go ahead. You may continue.6

 

6

Jason raises another argument in roughly the same vein as what is set forth in Note 4, supra, 

relating to the trial court’s overruling of his objection to Sikes’s statements that A.C. told him 

Jason “started out by touching her, and then it eventually moved . . . to him coming in her room 

in the middle of the night and raping her.” Additionally, he takes issue with (despite having 

raised no contemporaneous objection to) similar testimony Sikes later provided on direct 

examination:

COMMONWEALTH: Andrew, did [A.C.] tell you during your relationship 

about two incidents of rape that happened to her?

SIKES: Yes, she did.

COMMONWEALTH: And when she told you these things, what was your 

response?

SIKES: Well, I was kind of speechless at first. I really didn’t know how to 

respond. It was more consoling her than anything.

COMMONWEALTH: Did you encourage her to tell other people that this 

happened?

SIKES: I did.

COMMONWEALTH: And do you think that she did that?

SIKES: She did. She ended up going to her mom right after that.

Jason asserts he is entitled to a new trial because, in his view, what Sikes related regarding what 

A.C. told him qualified as inadmissible hearsay and improper corroboration of A.C.’s version of 

events. We disagree. Sikes did not relate these statements to prove the truth of the matter 

asserted; indeed, he repeatedly testified during his examination that he had no personal 

knowledge regarding the truth of anything A.C. related to him regarding her alleged encounters 

with Jason. Once again, we reiterate that A.C.’s delay in telling anyone about her alleged 

encounters with Jason until early 2017 was a point of issue in this matter; and, from the context 

of this exchange, it is evident Sikes related A.C.’s statement to illustrate why the police were not 
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COMMONWEALTH: You’re good. Answer the 

question.

SIKES: Uh, and it moved to him coming in her room in 

the middle of the night and raping her.

COMMONWEALTH: And did she tell you that there 

was another incident that happened as well?

SIKES: Um, in a different county.

COMMONWEALTH: Okay –

DEFENSE: Your honor, objection.

COURT: Approach.

As to the jury’s question, which Jason believes evinced the 

cumulative prejudicial effect of the statements italicized above, it was addressed in 

the following bench conference with the Commonwealth and the defense:

COURT: This is jury question number three, from that, 

they have written, they said “the instructions provide a 

range of dates for the first incident that were different,” 

uh, “that were provided in the testimony. Can you 

provide the date of the first incident?” My response 

would be, “No, please determine from the evidence.” 

Anybody object to that going back as the answer?

COMMONWEALTH: No.

DEFENSE: No, your honor.

 

contacted about this matter until early 2017 – a non-hearsay purpose. Moreover, as the trial 

court’s perfunctory overruling of Jason’s objection tends to indicate, Sikes’s testimony was at 

worst merely cumulative of A.C.’s properly-admitted testimony, and at most harmless error. See

RCr 9.24.
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COURT: The two parts to this next question, “There 

was discussion that initial touch happened after a 

birthday party. Is there a date on the birthday party?” I 

have written back, “Any discussion of a birthday party is 

not relevant and not to be considered.” Anybody, 

anybody got any problem? Absent your 404(b) request, 

any objection to that being answered that way?

COMMONWEALTH: No, sir.

DEFENSE: Um, no objection to it being answered that 

way, your honor.

COURT: Okay. And I –

DEFENSE: I’m preserving, I’m reserving my objection 

as to a mistrial.

(Emphasis added.)

In sum, R.G. testified A.C. had told her during a cold day in 2017 that 

Jason had first “touched” A.C. “in a bad way” on the date of a birthday party. 

Sikes, for his part, testified A.C. had told him shortly after they began dating (i.e., 

shortly after April 2017) that Jason had “started out by touching her,” and that 

“another incident” involving “something bad” with Jason had occurred “in a 

different county.” This apparently caused the jury to question whether the date 

Jason initially “touched” A.C. occurred on the date of a birthday party, and to 

speculate – because the date of that birthday party had never been provided – that 

perhaps the initial touching had preceded the date of Count I.
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That, in turn, leads to Jason’s argument on appeal. Boiled down, he 

contends the trial court should have declared a mistrial because the jury may have 

indeed inferred that he initially “touched” A.C. at a birthday party prior to the 

range of dates specified in Count I. This was improper, he asserts, because the trial 

court had previously granted his pre-trial motion to exclude any testimony 

regarding that alleged incident. It was also an improper violation of his “due 

process right to a fair trial as guaranteed by the Fourteenth Amendment,” as he 

asserts in his brief, because this qualified as inadmissible “other bad acts” evidence 

prohibited by Kentucky Rule of Evidence (KRE) 404. In that vein, he explains:

The Supreme Court has recognized, “[T]here exists 

universal agreement that evidence of this sort is 

inherently and highly prejudicial to a defendant. It is 

very difficult for jurors to sift and separate such 

damaging information to avoid the natural inclination to 

view it as evidence of a defendant’s criminal disposition, 

especially in child sexual abuse cases.” Bell v. 

Commonwealth, [875] S.W.2d 882, 890-91 (Ky. 1994). 

See also Clark v. Commonwealth, 223 S.W.3d 90, 101 

(Ky. 2007).

We disagree with his interpretation of KRE 404. As an aside, we 

have purposefully omitted any meaningful description of this “birthday party” 

incident (1) to underscore the full extent of what little the jury heard about it over 

the course of three days of testimony; and (2) because the record provides no 

evidence regarding that alleged incident – only conflicting assertions about it from 

the parties’ respective counsel, put forth in their appellate briefs and during a 
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pretrial hearing of September 6, 2019.

7

 However, why Jason and the trial court 

deemed this “prior bad acts” evidence of the alleged birthday party incident 

improper and thus subject to exclusion is, from a review of the scant record before 

us, dubious. As illustrated by his argument set forth above and citations to Bell, 

875 S.W.2d at 890, and Clark, 223 S.W.3d at 101, the legal basis cited by Jason for 

excluding this evidence – which the trial court ultimately adopted in its pretrial 

order of September 6, 2019 – was the general rule that, in order to prove a criminal 

pattern of conduct or “signature crime” through evidence of a defendant’s extrinsic 

bad acts or crimes against an extrinsic victim, the evidence in question must 

clearly demonstrate “the method of the commission of the other crime or crimes is 

so similar and so unique as to indicate a reasonable probability that the crimes 

were committed by the same person.” Bell, 875 S.W.2d at 889; see also Clark, 

223 S.W.3d at 101 (“[G]iven the lack of distinctive similarities between Clark’s 

conduct toward M.M. and his conduct toward E.H. and L.H., we find that the 

probative value of M.M.’s testimony was greatly diminished by the temporal 

remoteness of Clark’s abuse of M.M.”). Additionally, in excluding any reference 

to this alleged birthday party incident, the trial court determined during the 

 

7 The details of the “birthday party” incident were initially represented by the Commonwealth in 

its pretrial KRE 404(c) disclosure, and during a pretrial hearing of September 6, 2019. During

the September 6, 2019 pretrial hearing, the Commonwealth indicated the incident had occurred 

in 2015. During a bench conference on September 12, 2019, at 2:42 p.m., both Jason’s counsel 

and the Commonwealth’s counsel later agreed it occurred “six months” or “the summer before” 

January 2016. Now, however, both parties represent in their appellate briefs that the “birthday 

party” incident occurred two years before January 2016.
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September 6, 2019 pretrial hearing that it was irrelevant because, as the above 

tends to indicate, it occurred in a different county.

That said, Jason and the trial court apparently failed to appreciate the 

significance of the fact that that the prior “birthday party” incident did not, as it 

was described, concern a defendant’s extrinsic bad act or crime against an extrinsic

victim. Rather, it concerned a defendant’s extrinsic bad act or crime against the 

same victim – which is a type of generally admissible “prior bad act” evidence that 

has little to do with whether a “signature crime” has been committed, and instead 

bears materially upon and may be permissibly used as evidence of motive – which 

was squarely at issue in this matter. Applying this principle in Jenkins v. 

Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016), our Supreme Court explained it 

as follows:

Unlike Bell, however, this case involves extrinsic acts 

perpetrated not against an “extrinsic” victim, as it were, 

but rather against the same person allegedly the victim of 

the crimes for which the defendant is being tried. 

Evidence of similar acts perpetrated against the same 

victim, we have noted many times, is “almost always 

admissible,” under KRE 404(b), because it will almost 

always be significantly probative of a material issue aside 

from the defendant’s character. Noel v. Commonwealth, 

76 S.W.3d 923, 931 (Ky. 2002). See also, e.g., Harp v. 

Commonwealth, 266 S.W.3d 813 (Ky. 2008); Driver v. 

Commonwealth, 361 S.W.3d 877 (Ky. 2012); Lopez v. 

Commonwealth, 459 S.W.3d 867 (Ky. 2015). That does 

not mean, of course, that evidence of prior acts against 

the same victim is automatically admissible—relevance 

to a material issue and probativeness must be shown, and 
-21-

the possibility of undue prejudice must still be 

considered—but our experience with these cases has 

taught that in most of them the Bell inquiry leads to 

admission.

This case is no exception. As is often the case when sex 

offenses are alleged, one of the principal issues was 

whether a crime occurred at all. Jane alleged that Jenkins 

forced her into sex acts, while Jenkins denied sexual 

contact altogether. Relevant to that issue was whether 

Jenkins had a motive to do as Jane alleged, and Jane’s 

testimony to the effect that Jenkins had done similar 

things to her during her childhood (seemingly without 

consequence) tended to show that Jenkins did indeed find 

Jane attractive as a vulnerable object of his sexual 

impulses. In this instance, therefore, Jane’s “same 

victim” testimony served not as propensity evidence 

tending to show merely that Jenkins had a propensity for 

this type of crime; it related rather to this particular crime 

by tending to show that Jenkins had a motive involving 

this particular victim.

Apart from that, evidence of a defendant’s other criminal or otherwise 

bad acts against the same victim is admissible under the standard of KRE 404(b) 

even if the evidence concerns an uncharged offense and, unsurprisingly, even if the 

act in question occurred in a different county. See, e.g., Whaley v. Commonwealth, 

567 S.W.3d 576, 586-87 (Ky. 2019) (explaining trial court’s permissible admission 

of “same victim” bad acts evidence concerning an incident in Boone County 

introduced during defendant’s trial for offenses committed in Kenton County). 

In any event, the standard for granting a mistrial is not, as Jason 

appears to represent, merely whether a trial order excluding evidence – regardless 
-22-

of the dubiousness of that order – was violated. Rather, a mistrial is an extreme 

remedy that is warranted only when the record reveals “a manifest necessity for 

such an action or an urgent or real necessity.” Skaggs v. Commonwealth, 694 

S.W.2d 672, 678 (Ky. 1985) (quoting Wiley v. Commonwealth, 575 S.W.2d 166 

(Ky. App. 1978)); see also Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky.

2004). The occurrence complained of must be of such magnitude that the litigant 

would be denied “a fair and impartial trial and the prejudicial effect can be 

removed in no other way.” Gould v. Charlton Co., 929 S.W.2d 734, 738 (Ky.

1996).

Moreover, there is a well-established presumption that the jury will 

follow the trial court’s admonition, which usually cures any harm caused by the 

occurrence. Sherroan, 142 S.W.3d at 17 (quoting Alexander v. Commonwealth, 

862 S.W.2d 856, 859 (Ky. 1993), overruled on other grounds by Stringer v. 

Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997)); Graves v. Commonwealth, 17 

S.W.3d 858, 865 (Ky. 2000). And, conspicuously absent from Jason’s brief is any 

mention of the following facts: (1) after each of the three offending statements 

italicized above, Jason declined offers from the trial court to appropriately 

admonish the jury; and (2) after the jury asked its question, the trial court did

admonish the jury that “[a]ny discussion of a birthday party is not relevant and not 
-23-

to be considered” – an admonition to which Jason raised no objection apart from 

preferring a mistrial.

This presumption is overcome in only two situations: (1) when an 

overwhelming probability exists that the jury is incapable of following the 

admonition and a strong likelihood exists that the impermissible evidence would 

be devastating to the defendant; or (2) when the question was not premised on a 

factual basis and was “inflammatory” or “highly prejudicial.” Johnson v. 

Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). “This standard is the same 

where the movant waives the protections of an admonition due to oversight or as a 

matter of trial strategy.” Sherroan, 142 S.W.3d at 17. When evidence of prior 

crimes or bad acts is “introduced into evidence through the non-responsive[8]

answer of a witness, this [C]ourt must look at all of the evidence and determine 

whether the defendant has been unduly prejudiced by that isolated statement.” 

Phillips v. Commonwealth, 679 S.W.2d 235, 237-38 (Ky. 1984). The trial court 

 

8 Relative to this point, on September 13, 2019 (the third and final day of the trial in this matter), 

when the trial court addressed Jason’s motion for a mistrial regarding these three remarks, the 

trial court explained:

I agree that there was an indication of another act. Um, but it was, they never 

mentioned it was in Edmonson County. But, it was in fact mentioned by two 

witnesses. I also believe that had this been a police officer or a professional 

witness, I may look at this differently. However, I believe that, I have little doubt 

that, and I don’t think [the defense] has argued that the Commonwealth in any 

way intentionally brought out that testimony. I think lay witnesses get on the 

stand, they start answering our questions, and then they forget that there’s this 

legal border, this legal boundary that they’re not to cross.
-24-

has broad discretion to determine whether to grant a mistrial, Matthews v. 

Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005), and that court’s decision should 

not be disturbed on appeal absent an abuse of discretion. Bray v. Commonwealth, 

177 S.W.3d 741, 752 (Ky. 2005).

Here, as Jason’s motion for a mistrial related not to a “question” but to 

the effect of what he characterizes as impermissible evidence of his alleged prior 

bad act toward A.C., the operative inquiry is whether: (1) an overwhelming 

probability existed that the jury was incapable of following the admonition; and, if 

so, (2) a strong likelihood existed that the impermissible evidence was devastating 

to Jason. See Johnson, 105 S.W.3d at 441. And, regarding the former point,

we do not expect a jury to erase from their minds what 

they have heard; and we do not expect testimony or 

evidence to be “unheard.” Bartley v. Commonwealth, 

400 S.W.3d 714, 736 (Ky. 2013). However, we do 

expect that instructions from the trial court will make 

clear what jurors are to disregard and what they are not 

allowed to consider. 

Roberts v. Commonwealth, 599 S.W.3d 841, 852 (Ky. 2020).

Here, nothing of record rebuts the presumption that the jury would 

heed the admonition that “[a]ny discussion of a birthday party is not relevant and 

not to be considered.” Indeed, the jury’s question about the birthday party did not 

come after the trial court’s admonition, but before it. Furthermore, despite Jason’s 

waiver of any admonition regarding Sikes’s reference to “another county,” the jury 
-25-

never asked any question in that respect, and the jury instructions specifically

required the jury to consider incidents that had occurred in Warren County only.

The wording of these admonitions was unambiguous, and the path on how to 

proceed set out in the admonitions was clearly marked for the jury. The trial 

court’s admonitions carried a high probability that the jury would follow the 

instructions they were given. Accordingly, this alone is reason enough to affirm 

the trial court’s decision not to grant a mistrial.

As to the latter point, the record likewise fails to demonstrate a strong 

likelihood existed that the “impermissible” evidence was “devastating” to Jason. 

See Johnson, 105 S.W.3d at 441. As discussed, “this [C]ourt must look at all of 

the evidence and determine whether the defendant has been unduly prejudiced by 

that isolated statement.” Phillips, 679 S.W.2d at 238. Here, Jason takes issue with 

three brief and isolated statements made over the course of a three-day trial. The 

witnesses who made the statements – R.G. and Sikes – both repeatedly testified 

that they had no personal knowledge of whether Jason had ever had any 

inappropriate contact with A.C. More to the point, the one person who claimed 

Jason did have inappropriate contact with A.C. – namely, A.C. herself – testified 

only that it occurred in January 2016, as set forth in Counts I, II, and III; and that 

prior to that time, she had had a high opinion of Jason and had felt comfortable 

around him:
-26-

COMMONWEALTH: What was, before he started 

living with you, how long did you know Jason?

A.C.: My whole life.

COMMONWEALTH: Your whole life. And what did 

you think of him?

A.C.: I thought he was fun and cool. He was kind of the 

cool one in the family that took you to do fun things.

COMMONWEALTH: What would you do together?

A.C.: We would go shopping. We would ride around. 

Just whatever we wanted to do, really.

COMMONWEALTH: And did he help your mom out 

while he was living with you guys?

A.C.: Sort of. Um, for example, my mom would give 

him money to go buy the groceries while she was at 

work. 

COMMONWEALTH: And, did he drive you to your 

activities?

A.C.: Yes. He took me to almost all of my games that I 

had to cheer at because my mom was at work.

Considering what is set forth above, the trial court’s decision to deny 

Jason’s motion for a mistrial did not amount to an abuse of its discretion.

III. OTHER EVIDENTIARY ISSUES

Apart from what has already been discussed, Jason also raises several 

evidentiary issues which, in his view, warrant a new trial. To begin, Jason argues 

he is entitled to a new trial due to the following testimony from R.G.:
-27-

COMMONWEALTH: So, we’re going to focus again on 

the night in the garage, when you said that you were 

talking to [A.C.] And, what did she tell you?

[R.G.]: That, uh, she was raped.

COMMONWEALTH: And, did she indicate to you a 

time that that happened?

[R.G.]: Yes.

COMMONWEALTH: When did she tell you that had 

happened?

[R.G.]: She said that one of the nights was when I was 

admitted into the hospital. 

COMMONWEALTH: Well, you say “one of the 

nights.” Was there another time when she told you it had 

happened as well?

[R.G.]: Yes.

COMMONWEALTH: Do you recall how much time 

had passed between when she told you that happened, 

and the time she was telling you?

[R.G.]: It’d been a while. Like, a year or two.

COMMONWEALTH: Okay. And who did she say did 

those things to her?

[R.G.]: Jason.

COMMONWEALTH: Um, do you recall what it was 

that brought about [A.C.] telling you that about that time?

[R.G.]: Um, she said that at the time, she was dating a 

guy, and that she’d talked to him about it, and he told her 

that she needed to talk to me.
-28-

COMMONWEALTH: And, what was her demeanor 

when she was telling you these things?

[R.G.]: What do you mean?

COMMONWEALTH: How was she acting?

[R.G.]: While she was telling me?

COMMONWEALTH: Yes.

[R.G.]: She was upset.

COMMONWEALTH: She was upset?

[R.G.]: Yeah.

COMMONWEALTH: What do you mean by “upset”?

[R.G.]: She was crying.

Jason takes issue with R.G.’s testimony set forth above because, in the 

words of his brief, “it was unnecessary to have other witnesses repeat what AC 

said out-of-court. AC testified in open court.” And, he adds, these statements 

“served only to bolster AC’s credibility.”

As the exchange set forth above makes apparent, however, any such 

purported “error was not preserved by a contemporaneous[9] objection and so our 

 

9

Jason asserts his “objection” to this testimony was preserved because, as he argues in his brief, 

“Defense counsel made a motion in limine to exclude hearsay, including prior consistent 

statements unless it countered a charge of recent fabrication. The Commonwealth agreed to 

exclude all hearsay.” However, that is not enough. As explained by our Supreme Court,

An objection made prior to trial will not be treated in the appellate court as raising 

any question for review which is not strictly within the scope of the objection as 
-29-

review is for palpable error[.]” King v. Commonwealth, 472 S.W.3d 523, 528 (Ky. 

2015). And, the admission of this testimony does not rise to the level of palpable 

error. Palpable error requires a showing of “manifest injustice,” RCr 10.26, which 

Jason has failed to demonstrate. Where impermissible testimony is cumulative of 

other testimony – which Jason acknowledges is the case here – its admission is 

harmless error. White v. Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999) 

(admission of hearsay testimony rendered cumulative and harmless by nearly 

identical testimony of two other witnesses); Patterson v. Commonwealth, 555 

S.W.2d 607, 609 (Ky. App. 1977) (same).

Jason also requests review of several other evidentiary issues which,

as he acknowledges, he likewise failed to preserve. Again, we may only grant 

relief for an unpreserved error when the error is (1) palpable; (2) affects the 

substantial rights of a party; and (3) has caused a manifest injustice. 

Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).

The first issue concerns evidence the Commonwealth adduced 

demonstrating that between early February 2016 (when Jason moved out of A.C.’s 

 

made, both as to the matter objected to and as to the grounds of the objection. It 

must appear that the question was fairly brought to the attention of the trial court.

. . . One claiming error may not rely on a broad ruling and thereafter fail to 

object specifically to the matter complained of.

Lanham v. Commonwealth, 171 S.W.3d 14, 21 (Ky. 2005) (emphasis added) (quoting Tucker v. 

Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996)).
-30-

residence) and June 27, 2018 (the date he was arrested following his indictment in 

this matter), Jason and his wife and children moved on three separate occasions, 

residing in Denver, Colorado; Panama City, Florida; and in an RV in Mt. Pleasant, 

Tennessee. Regarding this evidence, Detective Rebecca Robbins, who testified 

that she began efforts to locate Jason in May 2017 shortly after A.C. reported this 

matter to the police, stated at trial that Jason’s changes of residence made her 

efforts somewhat difficult. The Commonwealth also commented on this evidence 

during its closing arguments, suggesting Jason and his family had “lived off the 

grid in an RV” while in Tennessee, and, “It’s an awful lot of moving around.”

In his brief, Jason argues “the fact that [he] moved several times after 

the alleged incidents happened at [R.G.’s] house was not probative guilt. Reasons 

existed for his moves.” And, to be sure, Detective Robbins further qualified her 

own testimony by adding there was “nothing unusual” about Jason’s changes of 

residence; and Jason and his wife, Holly, provided extensive testimony regarding

why they moved, which Jason summarizes in his brief as follows:

Holly Bowles testified that they moved from Alabama to 

Kentucky because they were going to take over the 

mortgage in his grandmother’s house but the heat was not 

on so [R.G.] invited them to stay in her home. They 

moved to Denver, Colorado after that; [Jason’s] oldest 

daughter lived there. After a year they moved to Panama 

City, Florida to be nearer to family. She said it was a 

spur of the moment decision by [Jason] to leave Denver. 

They stayed in Florida a year – they tried not to move 

around too much for their children. Then they moved to 
-31-

Mt. Pleasant, Tennessee where they lived in an RV while 

they built a house. [Jason] always worked. The 

prosecutor asked if Holly knew what the term “off the 

grid” meant and she said she did. The prosecutor asked 

if that was how they were living. Holly said kind of, they 

still had cable TV and cell phones and stuff like that. 

[Jason] explained why they moved to those places, 

including that they left Kentucky because Holly was 

having an affair with her boss.

(Record citations omitted.)

To be clear, the Commonwealth adduced this evidence to demonstrate 

Jason’s “flight” from Kentucky – and by extension his consciousness of guilt. And 

to be sure, such evidence can be relevant and admissible. See Day v. 

Commonwealth, 361 S.W.3d 299, 303 (Ky. 2012) (“As a general rule, proof of 

flight to elude capture or prevent discovery is admissible because flight is always 

some evidence of a sense of guilt.” (Citation and internal quotations omitted)). 

However, even assuming this evidence fell short of what could be 

considered proper evidence of “flight,” this evidence was not so prejudicial as to 

bear upon Jason’s substantial rights, and it came nowhere near rendering his trial 

manifestly unjust. See Jones, 283 S.W.3d at 668. As set forth above, Jason had 

the opportunity to rebut it at trial; he and Holly testified extensively regarding the 

circumstances of their moves; and, as noted, even Detective Robbins testified she 

saw “nothing unusual” about it. Accordingly, this provides no basis for reversal.
-32-

The second issue concerns evidence the Commonwealth adduced 

regarding a trip to Wal-Mart. In the relevant part of his brief, Jason argues:

The prosecution elicited evidence that [Jason] and AC 

had gone to WalMart together on one occasion. [R.G.]

testified it was just the two of them on the trip to 

Walmart and they were gone about 30 to 45 minutes. 

[N.G.] testified she remembered [Jason] taking AC to

WalMart at midnight because she had a yeast infection 

and needed medicine for it. [N.G.] wanted to go but 

[Jason] told her to stay home and play with his laptop. 

[N.G.] said WalMart was not that far away and they were 

gone almost an hour.

. . .

The prosecution also tried to infer [Jason] had done 

something improper by taking AC to WalMart one night 

for approximately an hour. All agreed the trip was to get 

either groceries or Monistat for AC. It also appeared 

[R.G.] had asked him to take AC. But no inference can 

be drawn from the testimony about the WalMart trip that 

makes it more or less likely that rape and sex abuse 

alleged occurred on different dates. It did allow the jury 

to speculate that [Jason] had done something improper 

during the trip.

(Internal record citations omitted.)

However, the Commonwealth’s purpose for introducing this evidence 

was to establish opportunity, which was a central issue in this matter. From the 

outset, Jason asserted that, due to the number of people residing at A.C.’s residence 

and the relatively small size of the residence, he had few opportunities to be alone 

with A.C. However, the fact that Jason was nevertheless able, as a routine matter, 

to be alone with A.C. for approximately an hour at or around midnight on occasion 
-33-

tended to contradict the notion that he lacked any opportunities to be alone with 

her, or – of equal importance – the notion that his being alone with her would have 

raised any strong suspicions of wrongdoing. “Implicit in the concept of palpable 

error correction is that the error is so obvious that the trial court was remiss in 

failing to act upon it sua sponte.” Lamb v. Commonwealth, 510 S.W.3d 316, 325 

(Ky. 2017). Here, there was no such obvious error.

The third issue concerns testimony the Commonwealth elicited from 

A.C.’s younger sister, N.G. Her relevant testimony was as follows:

COMMONWEALTH: When Jason first came to live 

with you, and you all are related so I’m guessing have 

you known him a long time?

N.G.: My whole life.

COMMONWEALTH: What did you think of Jason?

N.G.: At the beginning, or –

COMMONWEALTH: Yes.

N.G.: – or when he first came for Christmas? 

COMMONWEALTH: When he came for Christmas. 

What did you think about him?

N.G.: I felt something was off. He, we used to be close 

when I was younger, and our relationship wasn’t how it 

was. He felt different, weird to me. Like, my gut feeling 

was different. Just, he felt off.

COMMONWEALTH: Was it different the whole time 

he lived with you?
-34-

N.G.: Yeah.

COMMONWEALTH: Did you see any things that you 

thought were weird?

N.G.: Yeah.

COMMONWEALTH: Like what?

N.G.: Jason, instead of when, like, his wife and my sister 

were sitting on the couch, he would go sit beside my 

sister instead of his wife.

COMMONWEALTH: How did Jason act around your 

sister other than by wanting to sit by her?

N.G.: He was weird. He would make weird comments 

about the way she dressed. And I would never hear him 

comment about, like, the way his wife dressed. And, it 

was just off to me. In my gut feeling, I knew something 

was wrong.

COMMONWEALTH: Do you remember any of the 

comments that you heard Jason make about your sister?

N.G.: I remember one time, my sister was wearing 

leggings and she was getting ready to get into his truck 

because we were going somewhere, and he made a 

comment about them.

COMMONWEALTH: About the leggings?

N.G.: Yeah.

COMMONWEALTH: Do you remember what it was?

N.G.: Not particularly, but it was something about her 

legs, or the leggings, or something like that.
-35-

COMMONWEALTH: And she was getting in the truck. 

Where in the truck was [A.C.] getting in?

N.G.: The front. She always sat in the front.

COMMONWEALTH: Did you ask to sit in the front?

N.G.: I would, but I would never get to.

COMMONWEALTH: You would never get to, is that 

what you said?

N.G.: Hardly ever.

COMMONWEALTH: Did you ever know of Jason 

buying your sister anything?

N.G.: Yeah. 

COMMONWEALTH: Do you remember what he 

bought her?

N.G.: He bought her boots, her and her friend boots. A 

Victoria’s Secret shirt. And some other things, but those 

are the only things I can remember.

As to why Jason takes issue with this testimony, he presents the 

following argument in his brief:

[N.G.] testified after [Jason] came to live with them she 

thought something was off. “He felt weird to me, my gut 

feeling was different.” She saw things she thought were 

weird like him sitting next to AC on the couch, allowing 

AC to ride in the front seat of the car, and making 

“weird” comments about the way she dressed like 

complimenting her leggings. She said, “My gut feeling, I 

know something was wrong.”

. . .
-36-

[N.G.’s] speculation was certainly inadmissible. It was 

improper opinion evidence violating KRE 701. What 

[N.G.] described was not “an observed phenomenon 

where there exists no other feasible alternative by which 

to communicate that observation to the trier of fact.” 

Clifford v. Commonwealth, 7 S.W.3d 371, 374 (Ky. 

1999).

We disagree. As indicated, Jason apparently believes, in light of what 

is set forth above, that N.G. provided impermissible “lay opinion” testimony in 

violation of KRE 701, which provides:

If the witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences is limited 

to those opinions or inferences which are:

(a) Rationally based on the perception of the witness;

(b) Helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue; and

(c) Not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Here, N.G.’s opinion was “[n]ot based on scientific, technical, or 

other specialized knowledge,” per subsection (c). Distilled to its essence, N.G.’s 

opinion was that Jason acted less like a relative toward A.C., and more like a male 

attracted to a female – something well within the purview of lay testimony. Per 

subsection (a), it was also rationally based upon N.G.’s perception of how Jason 

acted toward AC: he preferred sitting next to A.C., rather than his wife; he made 

comments about A.C.’s appearance, but not his wife’s appearance, and Jason’s 
-37-

comments about A.C.’s appearance made N.G. feel uncomfortable; and, she 

recalled Jason took A.C. shopping and purchased gifts for A.C.

And, per subsection (b), N.G.’s opinion testimony was indeed relevant 

to the determination of a fact in issue in this matter – namely, motive. To 

paraphrase Jenkins, 496 S.W.3d at 457, as is often the case when sex offenses are 

alleged, one of the principle issues was whether a crime occurred at all. A.C. 

alleged Jason forced her into sex acts, while Jason denied sexual contact 

altogether. Relevant to that issue is whether Jason had a motive to do as A.C. 

alleged, and N.G.’s testimony to the effect that Jason acted less like a relative 

toward A.C., and more like a male attracted to a female, tended to show that Jason 

did indeed find A.C. attractive as a vulnerable object of his sexual impulses. We 

therefore find no error relative to this testimony, palpable or otherwise.

IV. CONCLUSION

We have addressed the breadth of Jason’s arguments. He has 

presented no instance of reversible error. We therefore AFFIRM.

ALL CONCUR.
-38-

BRIEFS FOR APPELLANT:

Kathleen K. Schmidt

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky