IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
V

sixprrmt ~ourf of

DENNIS MARTIN MACKIN

Ky. Const. § 110(2)(b).

2007-SC-000184-MR

RENDERED: SEPTEMBER 18, 2008

NOT TO BE,,PQBLISHEP

ON APPEAL FROM NELSON CIRCUIT COURT

HONORABLE PAUL W. ROSENBLUM, JUDGE

NO. 01-CR-000187

MEMORANDUM OPINION OF THE COURT

AFFIRMING

I . INTRODUCTION .

COMMONWEALTH OF KENTUCKY APPELLEE

A circuit court jury convicted Dennis Mackin of nine counts of incest. After

the verdict, Mackin entered into a plea agreement that provided a punishment of

consecutive ten-year sentences for each of the nine counts, for a total sentence

of ninety years' imprisonment. But the plea agreement further provided that the

judgment would impose upon Mackin twenty years' imprisonment, by virtue of the

limiting provisions of Kentucky Revised Statutes (KRS) 532 .110. After being

sentenced to twenty years in accordance with the plea agreement, Mackin filed

this appeal as a matter of right. We have reviewed the record and applicable

law and affirm the judgment.
II . FACTUAL AND PROCEDURAL HISTORY.

Mackin was in dicted on nine generi c counts of incest, charging him with

having had sexual contact with his daughter, M.M. The charges in the indictment

were based upon the fact that M .M. had told first her mother and then the

authorities that Mackin had engaged in sexual contact with her frequently for

approximately a year, beginning when M.M . was a twelve-year-old sixth grader.

The charges eventually came on for a jury trial, at which the Commonwealth was

allowed to introduce two sexually explicit photographs that appear to depict

children engaging in sexual activity and two sexually explicit novels, which

centered on incest. The jury found Mackin guilty of nine counts of incest, after

which Mackin agreed to the plea agreement. The trial court imposed the

sentence contemplated by the agreement. This appeal followed.

III . ANALYSIS.

Mackin contends that the Commonwealth obtained his convictions based

upon his possession of two pornographic photographs and two pornographic

books, Becky's Family and Dad Does It Best. Mackin contends that those four

items were inadmissible and that, even if the items met the minimum standards

for admissibility, they should have been excluded from evidence because the

items' prejudicial effects outweighed their probative value. Our task, therefore, is

to determine if each of the four items should have been admitted into evidence

and, if not, whether any item's admission constitutes reversible error. We shall

address the admission of each item separately . Before we may substantively
address those items' admissibility, however, we must address the

Commonwealth's concern that Mackin failed to preserve these evidentiary issues

for our review.

A. Mackin Sufficiently Preserved for Appellate

Review the Four Items' Admis sibility .

Mackin contends that he filed an objection to the Commonwealth's pretrial

notice to introduce evidence of other bad acts under Kentucky Rules of Evidence

(KRE) 404(b). But the Commonwealth's KRE 404(b) notice pertained only to

testimony that Mackin allegedly raped and sodomized M.M. while traveling

outside Kentucky. So, as the Commonwealth notes in its brief, Mackin's written

objection to the Commonwealth's KRE 404(b) notice makes no mention of the

two pornographic pictures and two incest-related books. The Commonwealth

also notes that though Mackin contends that the admissibility of the four items in

question was discussed at a pretrial conference, no recording of that conference

has been placed in the record . The Commonwealth concedes that a KRE 404(b)

hearing occurred concerning the four items in question but contends that the

issue is not preserved because Mackin failed to ensure that a recording of that

hearing was placed in the record before us. 2

The Commonwealth also concedes that Mackin was permitted to raise a

continuing objection at trial . The Commonwealth contends that objection was

See, e.g., Clark v. Commonwealth, 223 S.W.3d 90,102 (Ky. 2007) ("Although each

case is factually distinguishable from the one before us, we have consistently and

repeatedly held that it is an appellant's responsibility to ensure that the record

contains all of the materials necessary for an appellate court to rule upon all the

issues raised . And we are required to assume that any portion of the record not

supplied to us supports the decision of the trial court.") (footnote omitted) .
insufficient for preservation purposes, however, because the objection was

subject to the arguments and ruling from the previous hearing .

Obviously, we would prefer to have the entire record before us. We urge

the parties to any appeal to take great pains to ensure that the record contains

everything that an appellate court needs in order to make an informed ruling .

But, under the facts of this case, the Commonwealth concedes that Mackin

objected to the items' admissibility before trial and renewed that objection during

trial, meaning that it stretches credulity to deem these evidentiary issues

unpreserved. Although we may not have the benefit of viewing the discussions

of counsel and the trial court during the KRE 404(b) hearing, the actual

photographs and books themselves are in the record . So we reject the

Commonwealth's urging to consider these issues only under the palpable error

rule. Instead, we will apply the familiar abuse of discretion test in determining

the items' admissibility. 5

B . The Trial Court Did Not Abuse its Discretion

When it Permitted the Books to_be Introduced

Into Evidence.

KRE 404(b) provides that "[e]vddence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

conformity therewith ." Such evidence may be admissible if offered for other

This stands in stark contrast to cases such as Clark, supra, in which we could not

determine the admissibility of videotaped interviews because those videotapes were

not in the record. 223 S.W.3d at 102-03.

See Kentucky Rules of Criminal Procedure (RCr) 10.26.

Clark, 223 S.W.3d at 95 ("Since the trial court's unique role as a gatekeeper of

evidence requires on-the-spot rulings on the admissibility of evidence, we may

reverse a trial court's decision to admit evidence only if that decision represents an

abuse of discretion .") .
purposes, such as "proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident[,]" or if the evidence is "so

inextricably intertwined with other evidence essential to the case that separation

of the two (2) could not be accomplished without serious adverse effect on the

offering party.

,6 When a reviewing court is faced with a KRE 404(b) challenge,

"three [inquiries] must be addressed separately : (1) relevance,

(2) probativeness, and (3) prejudice ."'

The Commonwealth argues that the books are inextricably intertwined

with M .M.'s testimony regarding her alleged sexual contact with Mackin because

Mackin allegedly asked M.M . to read the books in order to assure M .M . that

incest was not an abnormal practice. The Commonwealth points to M.M.'s

testimony that Mackin gave the books to her two to three months after he first

touched her in a sexual manner and that Mackin told M.M . the books could

answer her questions about sex. Furthermore, M.M . testified that Mackin forced

her to read the books and questioned her afterward about the books' contents.

Additionally, M.M . testified that Mackin told her that it must be acceptable for a

father and daughter to have sex because it was the subject of books . Moreover,

the Commonwealth contends that Mackin began having vaginal intercourse with

M.M. only after forcing her to read at least one of the books, and even told M.M .

that she would be happier, like the character whose name appears in the title of

the book Becky's Family, if she stopped resisting . Finally, the Commonwealth

KRE 404(b)(1)-(2) .

7 Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2000.
points out that Mackin admitted buying the books and to having "probably' read

them .

We have held that the Commonwealth is allowed under KRE 404(b) to

"present a complete, unfragmented picture of the crime and investigation ."8 In

the case at hand, we agree with the Commonwealth that the books were

inextricably intertwined with the other evidence. According to the testimony,

Mackin used the books as a vehicle to assuage M.M .'s concerns about incest

and as a springboard to further their sexual relationship . These books were

relevant and probative . The question then becomes whether their introduction

was unduly prejudicial to Mackin.

Obviously, the introduction of books promoting incest was prejudicial to

Mackin, as it would be to any defendant. 9 Because of the inherently prejudicial

nature of such evidence, therefore, the proper focus of our inquiry must be on

whether the books' probative value was "substantially outweighed by the danger

of undue prejudice . . .

."1°

Mackin contends that the books' introduction into evidence did cause him

to suffer undue prejudice . We disagree. The books had a high probative value,

as demonstrated by M.M.'s testimony directly linking these books to her sexual

intercourse with Mackin. So although the jury likely took a dim view of the books

and, by extension, the books' owner-Mackin, their introduction into evidence

s

9

10

Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003).

Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky. 1994) ("As for the prejudice side,

there exists universal agreement that evidence of this sort is inherently and highly

prejudicial to a defendant.").

KRE 403.
was crucial for the Commonwealth to show the precise method by which Mackin

allegedly engaged in a systematic control over M.M .'s mind and body. We

conclude, therefore, that the trial court did not abuse its discretion when it

deemed the books to be admissible.

C. The Trial Court Did Abuse its Discretion When

it Deemed the Two Photos in Question to be

Admissible,_ but that Error is Harmless.

Mackin contends that the trial court abused its discretion by permitting the

Commonwealth to introduce into evidence two photographs, which appear to

depict female children engaging in sexual intercourse . We agree that the

pictures should not have been introduced because the Commonwealth failed to

link the photos to Mackin's sexual relationship with M.M ., but we find the

introduction of the photos to be harmless error in light of the overwhelming

evidence against Mackin.

M.M . testified that she did not discuss the photos in question with Mackin

and that she was not sure if she saw the photos at the same time as Mackin.

M.M . testified that she saw the photos lying near the computer while she was

playing a game. Notably, M.M. testified that she saw the photo marked as

Commonwealth's exhibit 5 after she saw the photo marked as Commonwealth's

exhibit 4 . Commonwealth's exhibit 4 is dated August 17, 2000. But M.M .

testified that her sexual activity with Mackin ceased on July 31, 2000, shortly

before M.M. began eighth grade . So it logically follows that M .M. did not see

either photograph until after such time as her sexual activity with Mackin had

stopped.
In a somewhat analogous case from nearly twenty years ago, we

forcefully "declare[d], unqualifiedly, that citizens and residents of Kentucky are

not subject to criminal conviction based upon the contents of their bookcase

unless and until there is evidence linking it to the crime charged."" We recently

reaffirmed our commitment to that principle in Jones v. Commonwealth.

Although the Commonwealth generically argues that these two photos are

inextricably intertwined with the other evidence of the charges against Mackin,

that argument fails because the Commonwealth failed to link them to Mackin's

sexual relationship with M.M . The photos are disturbing. But M.M. testified that

she merely found them near a computer in her home and did not even discuss

them with Mackin . So the photos are different from the books because M.M.

testified about Mackin's use of the books to escalate their sexual relationship . It

appears, therefore, that the photos in question failed the linkage test set forth in

Dyer and reinforced in Jones. This conclusion is reinforced by the

Commonwealth's failure to refute Mackin's convincing contention that the photos

could not have played any role in the sexual relationship he had with M.M .

because, under the terms of her own testimony, she did not see the photos until

she had ceased having sexual relations with Mackin . So we hold that the trial

court abused its discretion when it permitted the Commonwealth to introduce the

two photographs in question into evidence.

13 Because RCr 9.24 constrains us to

12

13

Dyer v. Commonwealth , 816 S.W.2d 647, 652 (Ky. 1991) overruled on other grounds

by Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky. 1998).

237 S.W.3d 153,160-61 (Ky. 2007).

Mackin was originally indicted for one count of possession of child pornography. The

photos may have been admissible in furtherance of that charge . However, that child
"disregard any error or defect in the proceeding that does not affect the

substantial rights of the parties[,]" we must then decide whether the introduction

of the photographs was a harmless error.

The test for harmless error is whether there is a reasonable possibility that

the evidence in question may have contributed to the jury's verdict.

14 In light of

M.M.'s strong, specific, and damning testimony, we do not find that there is a

reasonable possibility that the erroneous admission of two photographs (even

though the photos were displayed by the Commonwealth during closing

argument) contributed to the jury's verdict. Essentially, the Commonwealth's

case centered upon M.M .'s testimony; and the presence of these two extraneous

photographs did not make her testimony that Mackin repeatedly engaged in

sexual activity with her any more or less believable because M.M . candidly

testified that the photos were not shown to her by Mackin . The status of the

photographs stands in stark contrast to the pornographic books. Therefore, we

find that the erroneous introduction of the photos was a harmless error.

IV. CONCLUSION .

For the foregoing reasons, the judgment and sentence imposed by the

Nelson Circuit Court are affirmed .

All sitting, except Venters, J. All concur.

14

pornography charge was severed from the incest charges and was ultimately

dismissed with prejudice following Mackin's incest convictions.

Anderson v. Commonwealth, 231 S.W.3d 117, 122 (Ky. 2007) ("An error is reversible

if the erroneously admitted evidence has a reasonable possibility of contributing to

the conviction ; it is harmless if there is no reasonable possibility that it contributed to

the conviction.").
COUNSEL FOR APPELLANT:

Charles Thomas Hectus

Hectus & Strause PLLC

804 Stone Creek Parkway

Suite One

Louisville, Kentucky 40223

COUNSEL FOR APPELLEE :

Jack Conway

Attorney General of Kentucky

Kenneth Wayne Riggs

Assistant Attorney General

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601