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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.

 
RENDERED: DECEMBER 16, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0343-MR

MARLON HENSON APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT

V. HONORABLE KEN M. HOWARD, JUDGE 

NO. 19-CR-00687

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

The grand jury indicted Marlon Henson on one count of first-degree 

sodomy and one count of first-degree sexual abuse for allegedly engaging in 

deviate sexual intercourse with J.G., his stepdaughter, and subjecting her to

sexual contact. At trial, the jury found Henson guilty on both counts and 

recommended concurrent sentences totaling 20 years. He now appeals the 

resulting judgment as a matter of right.1 We affirm the judgment.

In his appeal, Henson alleges more than 25 errors by the trial court. 

Numerous arguments made in his brief are improperly preserved, inadequately

 

1 Ky. Const. § 110(2)(b).
2

cited, insufficiently argued, and unsupported by statute or case law. We 

address those arguments that comply with CR2 76.12. 

I. FACTS AND PROCEDURAL HISTORY

J.G. confided to her friends and grandmother that her stepfather, Marlon 

Henson, had made sexual contact with her. Specifically, J.G. alleged that, on 

one occasion, she had fallen asleep in the bedroom of Henson and her mother 

when Henson put his hand under her clothing and touched her “lower private 

area” between her legs. On another occasion, Henson had come to J.G.’s 

bedroom while she was awake but lying down, pulled down her shorts, and 

touched and licked between her legs.

When J.G.’s mother, Joy Gray, was informed of these allegations, she 

contacted the Kentucky State Police. In response, Trooper Kevin Dreisbach 

went to Joy’s location where they composed and sent on Joy’s phone a series of 

text messages to Henson. Via return text message, Henson denied knowledge of 

doing anything to J.G., but he apologized if he had done so.

Afterward, Trooper Dreisbach drove to Henson’s location, and Henson 

agreed to go with him to the post to be interviewed. Henson was released after 

being interviewed. Henson agreed to be interviewed by police again two days 

later and was again released.

The police investigated J.G.’s allegations, interviewing countless friends 

and relatives of both J.G. and Henson. After nearly a year of investigation, 

Henson was indicted.

 

2 Kentucky Rules of Civil Procedure.
3

Jury selection for Henson’s trial began on March 12, 2020, and the jury 

was sworn in on March 13. At trial, Henson denied any sexual interaction with 

J.G. After both parties made closing arguments, the jury deliberated for 

approximately 14 hours before reaching a guilty verdict on both charges and 

recommending a concurrent sentence totaling 20 years. The trial court 

sentenced Henson in accordance with this recommendation. 

II. ANALYSIS

A. The trial court did not abuse its discretion by proceeding with 

Henson’s trial in light of Order 2020-08 from the Kentucky Supreme 

Court.

Henson contends that the trial court committed reversible error in failing 

to grant a postponement of his trial to a later time. In the face of the threat of 

COVID-19, Henson alleges the members of the jury were unable to give their 

full attention to their duties as jurors. Additionally, he contends the language 

of this Court’s Order No. 2020-08 mandated the trial court reschedule his trial 

to a later time, and that by failing to do so the trial court committed reversible 

error.

We review a trial court’s decision on whether to postpone a trial under an 

abuse of discretion standard.3 A trial court has wide discretion in deciding 

whether to grant a motion for continuance, and we will not overturn such a 

decision unless we find the trial court’s decision arbitrary, unreasonable, or 

unsupported by sound legal principles.4

 

3 Hilton v. Commonwealth, 539 S.W.3d 1, 7 (Ky. 2018).

4 Id. at 10-11; Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
4

Motions for a continuance are generally governed by RCr5 9.04, which 

reads: “The court, upon motion and sufficient cause shown by either party, 

may grant a postponement of the hearing or trial.”6 In this case, however, the 

trial court was also operating under Kentucky Supreme Court Administrative 

Order No. 2020-08. The order issued on March 12, 2020, directs, in pertinent 

part, that “reasonable attempts shall be made to reschedule all criminal trials . 

. . .” 

Order No. 2020-08 imposed a standard of reasonableness upon the trial 

courts in deciding whether to reschedule criminal trials. It was within the trial 

court’s discretion to find it impracticable to reschedule Henson’s trial after the 

trial was underway. We find no abuse of discretion in the trial court’s decision 

to swear in the jury on March 13, 2020, and proceed with trial to completion.

Henson also alleges the trial court impermissibly delegated the authority 

to postpone the trial to the jury when the judge consulted with the jurors 

regarding their ability to focus and participate in the trial. However, a trial 

court is entrusted with broad discretion in the way a trial is conducted.7

Without a clear abuse of such discretion, an appellate court should not so 

encroach upon the purview of the trial court.8 We refuse to do so now. We find 

this communication between the trial court and members of the jury was a 

reasonable consultation with the jurors to determine whether the threat of 

 

5 Kentucky Rules of Criminal Procedure.

6 Taylor v. Commonwealth, 611 S.W.3d 730, 735 (Ky. 2020).

7 Transit Auth. of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky. 

1992). 

8 Id.
5

COVID-19 posed an insurmountable distraction from participation in the trial. 

Upon the jurors’ response that they felt prepared to participate in the trial, the 

court did not abuse its discretion in proceeding with the trial. 

B. The trial court did not err in closing Henson’s trial to the public in 

response to the threat of COVID-19.

Henson argues that the trial court denied him his right to a public trial 

on March 16, 18, and 19, 2020, when the court limited attendance of the trial 

to attorneys, parties, and necessary witnesses, in compliance with 

Administrative Order No. 2020-08. Henson claims that the exclusion of his 

family and friends from the courtroom during trial fatally prejudiced his 

defense.

Both the Sixth Amendment to the United States Constitution and Section 

11 of the Kentucky Constitution guarantee a criminal defendant the right to a 

public trial. In United States v. Gonzalez-Lopez, the United States Supreme 

Court held that the denial of a defendant’s right to a public trial was a 

structural error.

9 Structural errors are those affecting the entire framework of 

the trial and necessarily render the trial fundamentally unfair.10 These errors 

are not considered under the harmless-error rule but instead require automatic 

reversal.11 In reviewing whether a trial court denied a defendant’s right to a 

public trial, we apply a presumption of prejudice if such a denial is found to 

have occurred.12

 

9 United States v. Gonzalez-Lopez, 547 U.S. 140, 148-49 (2006); McCleery v. 

Commonwealth, 410 S.W.3d 597, 605 (Ky. 2013). 

10 Neder v. United States, 527 U.S. 1, 8-9 (1999). 

11 McCleery, 410 S.W.3d at 604.

12 Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018).
6

In Waller v. Georgia, the United States Supreme Court outlined the test 

for determining if the closure of a trial constitutes a violation of the Sixth 

Amendment by denying the defendant’s right to a public trial: 

[T]he party seeking to close the hearing must advance an 

overriding interest that is likely to be prejudiced, the closure must 

be no broader than necessary to protect that interest, the trial 

court must consider reasonable alternatives to closing the 

proceeding, and it must make findings adequate to support the 

closure.13

The application of the test to the circumstances in our case is imperfect 

because the closure of Henson’s trial was not a matter of the trial court’s 

judicial discretion but instead a matter of the trial court’s adherence to this 

Court’s emergency administrative orders. As such, our analysis considers 

whether the Kentucky Supreme Court fulfilled the Waller test in issuing Order 

No. 2020-08. We consider each of the test’s four elements in turn.

First, the party seeking closure of the trial must provide an “overriding 

interest” likely to be prejudiced if the trial is not closed.14 The preamble to 

Order No. 2020-08 outlines the emergent circumstances under which the order 

was issued. Governor Beshear had declared Kentucky to be under a state of 

emergency in response to the threat of COVID-19. Public-health guidance at 

that time advised social distancing, masking, and quarantining as the primary 

means of defense from the virus. Thus, this Court found the best way to 

protect the health and safety of the employees of Kentucky’s courts, our elected 

officials, and the public was the closure of courtrooms to spectators. Without 

 

13 467 U.S. 39, 48 (1984). 

14 Id.
7

such closure, the social distancing prescribed by the Centers for Disease 

Control would have been impossible to maintain. With the benefit of hindsight 

and the immense loss of life in Kentucky as a result of COVID-19, it is clear the 

precautions taken were a proportionate response to the threat posed by 

COVID-19. 

Second, the closure enacted must be narrowly tailored to the interest 

threatened.15 In issuing Order No. 2020-08, this Court left to the discretion of 

our trial courts the decision to reschedule criminal trials underway at that 

time. The order sought to limit the dangers posed by COVID-19 while allowing 

criminal trials to proceed as each trial court saw fit. Rather than suspending 

proceedings altogether, this Court sought to mitigate the danger posed by 

COVID-19 while permitting ongoing criminal trials to proceed to resolution 

without interruption. 

Third, the court must consider reasonable alternatives to the closure of 

the proceeding.16 In issuing Order No. 2020-08, this Court found that, in 

March 2020, closure of the courtroom to spectators was the most feasible way 

to continue the work of the judiciary while protecting employees, officials, and 

litigants from the threat of COVID-19. At present, technologies are available 

that provide streaming of proceedings live to any computer or phone with 

access to the internet. However, Kentucky’s courts were not equipped with 

such technology at the outset of the COVID-19 pandemic. Among the options 

of full closure, closure to spectators, or full access to the public, this Court 

 

15 Id.

16 Id.
8

reasoned that completing criminal trials in progress while closing the 

courtroom to spectators was the course of action best suited to accomplish this 

Court’s purpose of keeping courts operating while preventing the spread of 

COVID-19.

Lastly, the court is required to make findings adequate to support 

closure of the courtroom.17 In this case, the preamble to Order No. 2020-08 

states the reasoning behind the order’s issuance. Additionally, the trial court

informed the jury of Order No. 2020-08 and the reason spectators were 

excluded from the courtroom during the trial. So both the trial court and this 

Court provided sufficient findings to support the courtroom’s closure to 

spectators during the trial. We find Order No. 2020-08 satisfies the elements 

of the Waller test. Therefore, the trial court’s adherence with Order No. 2020-

08 did not constitute a denial of Henson’s right to a public trial.

The crux of Henson’s argument regarding the closure of his trial is that 

the jury was unable to see the many friends and family members he 

anticipated would attend the trial and show their support for him, and thereby 

the jury was unfairly prejudiced against him. However, this theory lacks legal 

support. Although the right to a public trial is “for the benefit of the accused,” 

the guarantee of a public trial is intended to allow the public to “see for 

themselves how their laws are impartially applied.”18 We find this purpose is 

adequately served by the availability of the digital recording of the trial to the 

 

17 Id.

18 Waller, 467 U.S. at 46; Lexington Herald Leader Co., Inc. v. Tackett, 601 S.W. 

905, 907 (Ky. 1980). 
9

public after the conclusion of the trial, and we therefore find Henson’s

argument to be without merit.

C. The trial court did not abuse its discretion in denying Henson’s

various motions to declare a mistrial.

A mistrial is granted at the discretion of the trial court.19 Absent an 

abuse of discretion, an appellate court will not disturb the ruling of the trial 

court. Furthermore, a mistrial is appropriate only where the record reveals “a 

manifest necessity for such action or an urgent or real necessity.”20 A mistrial 

is an extreme remedy only appropriate when a fundamental defect occurs that 

will result in apparent injustice.21 A mistrial should only be declared if 

prejudice can be avoided in no other way.22

Henson’s brief cites two instances in which he requested the trial court 

declare a mistrial. In both instances, Henson argued that, in response to 

Order No. 2020-08’s instruction that spectators be excluded from the 

courtroom, a mistrial was required. However, Henson’s brief provides no 

citation to pertinent authority in its contention that a mistrial was merited and 

wrongly denied. Because Henson’s brief is not in conformity with CR 76.12, we 

may summarily affirm the trial court on this issue.23 Despite this deficiency, 

 

19 Chapman v. Richardson, 740 S.W.2d 929 (Ky.1987).

20 Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002) (citing Clay v. 

Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993)).

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

22 Id.

23 See also RCr 12.02 regarding the applicability of CR 76 to criminal appeals; 

Harris v. Commonwealth, 384 S.W.3d 117, 130-31 (Ky. 2012).
10

we will still address the merits of this claim as if they had been properly 

briefed.

As addressed above in Section B, the right to a public trial is not 

intended to bolster the jury’s perception of the defendant and his support from 

the community. So the exclusion of Henson’s family and friends from the 

courtroom during the trial did not improperly prejudice the jury against him. 

Henson provides no alternative grounds on which the trial court’s failure to 

declare a mistrial would result in manifest injustice.24 Thus, we find the trial 

court did not abuse its discretion in refusing to grant Henson’s requests for a 

mistrial.

D. The trial court did not abuse its discretion in allowing J.G., the 

alleged victim, and her parents to be present in the courtroom for 

portions of the trial.

A trial court is entrusted with broad discretion in conducting a trial, and 

the trial court’s decisions will not be disturbed unless clearly erroneous.25 Per 

the directive of Order No. 2020-08, only “attorneys, parties, and necessary 

witnesses” were permitted in the courtroom during the trial. In ruling that the 

victim and her guardians were parties to the case for this purpose, we find the 

trial court exercised reasonable discretion. We find the allowance of J.G., the 

alleged underaged victim, and her parents to remain in the courtroom during 

closing arguments did not unfairly prejudice Henson, and the decision of the 

trial court to allow J.G. and her parents to remain in the courtroom was not 

 

24 Although Henson requested the trial court declare a mistrial on several other 

occasions, none of those instances were addressed in his brief. Therefore, we do not 

consider them in our present analysis.

25 Furnish v. Commonwealth, 267 S.W.3d 656, 664 (Ky. 2007). 
11

clearly erroneous. We therefore find Henson’s arguments on this matter to be 

without merit.

E. The trial court did not err in denying Henson’s motions to suppress

his statements made to Joy Grey and the evidence obtained 

therefrom.

When Henson conversed with Joy via text message during the 

investigation of this case, Joy was in the presence of Trooper Dreisbach.

Henson alleges that, in conspiring with Dreisbach to compose messages to 

send to Henson, Grey became an agent of the Commonwealth. Henson

contends that, as an agent of the Commonwealth, Grey was required to 

administer Miranda warnings before conversing with him. Because she failed 

to do so, Henson argues, the statements he made to Grey via text message and 

all the evidence the police obtained from these messages should have been 

suppressed.

Before we address the merits of Henson’s argument, the Court finds it 

important to note the argument on this topic provided in Henson’s brief is 

lacking in documentation of preservation, citation to legal authority, and 

analysis in general. By proffering a novel argument and providing no reference 

to analogous precedent, Henson simply makes a broad statement of error and 

asks this Court to make his analysis for him. Because of Henson’s failure to 

comply with CR 76.12, this Court may summarily affirm the trial court’s ruling 

on this matter.26 Despite this deficiency, we will address this argument as if it 

had been properly briefed.

 

26 Harris, 384 S.W.3d at 130-31.
12

When reviewing a trial court’s denial of a motion to suppress, this Court 

uses a clear-error standard of review for factual findings and a de-novo 

standard of review for conclusions of law.27 We will consider Henson’s factual 

contentions to determine whether the trial court committed clear error. 

Henson claims that, acting at the direction of Trooper Dreisbach, Joy 

sent text messages to Henson. Those messages contained the false assertion 

that Grey possessed video evidence incriminating Henson. Testimony from 

both Grey and Trooper Dreisbach confirms Grey text messaged Henson at the 

direction of Trooper Dreisbach and the messages contained this false assertion.

As the factual findings that form the basis of Henson’s motion for suppression 

are not in dispute, the trial court’s acceptance of these facts was not 

erroneous. 

We review de novo the legal conclusions formed by the trial court 

regarding Henson’s suppression motion. The trial court properly concluded 

that using deceptive investigatory techniques is legal. Thus, it would be 

permissible for Trooper Dreisbach to use deceptive techniques to question

Henson. By extension, the trial court reasoned, an agent of Trooper Dreisbach

could do the same. We agree. Under both Kentucky and United States 

Supreme Court precedent, the use of deceptive interrogation practices does not 

automatically render a statement involuntary.28 Instead, the courts consider 

 

27 Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006).

28 Frazier v. Cupp, 394 U.S. 731, 739 (1969); Matthews v. Commonwealth, 168 

S.W.3d 14, 21 (Ky. 2005). 
13

the totality of the circumstances under which a statement is made to determine 

if it was the product of coercion and, as such, inadmissible.29

Given the totality of the circumstances surrounding Henson’s text 

messages with Grey, we find the deception that occurred did not rise to the 

level of coercion necessary to render Henson’s statements inadmissible.

Therefore, the trial court properly dismissed Henson’s motion to have such 

statements suppressed.

F. The trial court did not err in denying Henson’s motion to suppress 

his statements to police.

Before trial, Henson filed a motion seeking the suppression both of his 

text message conversation with Grey (see Section E) as well as the statements 

he made to police “on or about” October 22, 2018, and any time thereafter. 

Henson claimed that his statement to police on October 22, 2018, was made 

during a custodial interrogation at which he had not been provided his Miranda 

rights. As such, he argued the statements were made involuntarily and thus 

suppression was required.

At a pre-trial suppression hearing, the trial court conducted an 

exhaustive analysis of both the undisputed facts as well as the relevant legal 

precedent, concluding Henson was not in custody during either of his 

interviews with police. As a result, Henson was not entitled to receive Miranda

warnings. The trial court denied Henson’s pretrial motion for suppression. 

Henson renewed his motion for suppression at trial, where it was denied on the 

same grounds as his pretrial motion.

 

29 Matthews, 168 S.W.3d at 21 (citing Illinois v. Perkins, 296 U.S. 292, 297 

(1990)). 
14

In reviewing a trial court’s denial of a motion to suppress, this Court 

applies a clear-error standard to the trial court’s factual findings.30 The trial 

court conducted an evidentiary hearing at which the officers who interviewed 

Henson testified. The trial court also considered the transcripts of Henson’s

interviews with police in reviewing Henson’s motion to suppress the statements 

elicited in the interviews. Henson’s motion contained no objection to the facts 

presented, and thus we find the essential facts that form the basis of his

argument are not in dispute. Therefore, we find the trial court’s acceptance of 

these facts as true was not erroneous.

In reviewing a trial court’s denial of a motion to suppress, we consider

the trial court’s legal conclusions de novo.31 Under Miranda v. Arizona, law 

enforcement officers are required to advise a suspect of the right to remain 

silent and the right to the assistance of legal counsel before performing a 

custodial interrogation.32 In order to determine if a suspect was subjected to a 

custodial interrogation, the court must consider both whether the suspect was 

in police custody and whether the suspect was interrogated.33

In determining whether a suspect was in police custody, we consider the 

totality of the circumstances surrounding the interaction.34 A suspect is in 

custody if he has formally been placed under arrest or if his movements have 

been restrained to the degree a reasonable person would equate with being 

 

30 Jackson, 187 S.W.3d at 305.

31 Id.

32 384 U.S. 436, 471-72 (1966). 

33 Smith v. Commonwealth, 520 S.W.3d 340, 346 (Ky. 2017). 

34 Wilson v. Commonwealth, 199 S.W.3d 175, 180 (Ky. 2006).
15

formally placed under arrest.35 Custody indicates that the suspect’s 

statements are at risk of being coerced.36 In analyzing whether a suspect is in 

custody, we consider the following factors: the purpose of the questioning; the 

location of the questioning; the behavior of the officers; the display of a weapon 

by the officers; the length of the interview; the officers’ tone and language; the 

officers’ notification to the suspect that he was free to leave; and any other 

indications of coercion.37

In this case, the trial court found that a reasonable person in Henson’s

position would have felt free to terminate the interview at any time. Henson

willingly traveled to the state police post to be interviewed by the officers, the 

officers notified him of his right to leave, and, in the case of the second 

interview, Henson exercised that right to terminate the interview and leave. 

The officers spoke calmly and unthreateningly to Henson throughout his 

interviews. 

We find, under the totality of the circumstances, Henson was not in 

police custody for purposes of Miranda, his statements made to police were 

voluntarily made, and those statements were admissible into evidence. The 

trial court did not err in denying Henson’s motion to suppress these statements 

from evidence. 

 

35 Stansbury v. California, 511 U.S. 318, 320 (1994); Jackson v. Commonwealth, 

187 S.W.3d 300, 310 (Ky. 2006).

36 Howes v. Fields, 565 U.S. 499, 508 (2012). 

37 Smith, 312 S.W.3d at 358.
16

G. The trial court did not err in refusing to admit the testimony of 

Miley Rogers into evidence.

Henson makes a fleeting argument that the trial court erred by refusing 

to admit portions of the testimony of Miley Rogers into evidence. He alleges 

this evidence was placed in the record by avowal. However, Henson does not 

identify which exhibit contains this evidence, nor does he accurately cite to 

relevant portions of the record. Last, Henson makes no argument regarding 

the substance of the excluded testimony or the impact that testimony would 

have had on his defense. Henson again simply makes a claim of error and 

expects this Court to construct an argument for him. We decline to do so. 

Because Henson’s brief is deficient under CR 76.12 with regard to this 

argument, we decline to consider his claim of error and instead summarily 

affirm the decision of the trial court.

H. The trial court did not abuse its discretion in refusing to admit the 

entire text-message exchange between Sybil Humphrey and Vicky 

Basham into evidence.

At trial, Henson called Sybil Humphrey as a witness. During both 

Humphrey’s testimony and the testimony of other witnesses, Henson attempted 

to introduce records of Humphrey’s text-message exchanges as impeachment 

evidence to prove that J.G. had ulterior motives in her allegations against 

Henson. The Commonwealth objected to the use of the messages because they 

contained inadmissible hearsay. The trial court did not permit the messages 

containing hearsay to be presented to the jury. Additionally, the trial court 

required the hearsay portions of the messages to be redacted before the 

messages were submitted as an exhibit to the jury.
17

Under CR 76.12, Henson’s brief is substantively and structurally 

deficient with regard to this argument. Henson provides no citation to any 

precedent or rule of evidence in support of his argument.38 Despite this 

deficiency, we will address Henson’s argument as if it had been properly 

briefed.

A court’s refusal to admit testimony into evidence is an evidentiary ruling

that we review for abuse of discretion.39 We will disturb the trial court’s 

decision only if we find the decision was “arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.”40

This Court assumes the legal principle on which Henson’s argument is 

founded is KRE41 106, the Rule of Completeness: “When a writing or recorded 

statement or part thereof is introduced by a party, an adverse party may 

require the introduction at that time of any other part or any other writing or 

recorded statement which ought in fairness to be considered 

contemporaneously with it.” The goal of this rule is to ensure statements 

admitted into evidence are fully understandable and clear.42

 

38 Henson’s argument on this topic also contains a disparate paragraph 

regarding a Barroso motion that seems to be mistakenly placed within this section. 

This argument is not contained in the brief’s Statement of Points and Authorities, the 

argument is both substantively and structurally deficient, and Henson fails to 

correctly spell the name Barroso or cite to the relevant case. Thus, we decline to 

entertain this argument.

39 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).

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

41 Kentucky Rule of Evidence.

42 James v. Commonwealth, 369 S.W.189, 205 (Ky. 2012). 
18

In determining fairness in the context of an alleged violation of the rule of 

completeness, the issue is whether the meaning of the included portion of the 

evidence is altered by the excluded portion.43 At trial, the party seeking to 

invoke KRE 106 must provide an explanation to the trial court of how the 

statements admitted would be understood differently in the context of those 

statements not admitted.44 

Neither at trial nor in briefing did Henson explain how any statement 

admitted from Sybil Humphrey’s text messages was taken out of context or 

plucked from the conversation as a whole such that it misled the jury as to its 

meaning. The statements admitted into evidence were expressions of concern 

that Henson may have been wrongly accused. The portion of the conversation 

the trial court ruled to be hearsay expressed how Basham “got told” that J.G. 

made false allegations because she did not want to live with Henson any 

longer. The omission of this hearsay from evidence does not alter the meaning 

of the portion of the conversation admitted into evidence. Therefore, we find 

the trial court did not abuse its discretion in refusing to admit the entirety of 

the text message conversation at hand. 

I. The trial court did not abuse its discretion in interpreting and 

applying the trial court’s reciprocal-discovery order.

Before trial, the court granted Henson’s motion for a discovery order 

requiring the Commonwealth to provide any exculpating evidence to him as 

well as any evidence the Commonwealth intended to introduce at trial. Under 

 

43 Sykes v. Commonwealth, 453 S.W.3d 722, 726 (Ky. 2015).

44 Meece v. Commonwealth, 348 S.W.3d 627, 671 (Ky. 2011). 
19

RCr 7.24(3)(b), if such a request by a defendant is granted, the court may order 

that the defendant similarly disclose to the Commonwealth evidence intended 

to be introduced at trial.

Before the trial began, Henson made no objection to these orders. At 

trial, however, Henson attempted to introduce into evidence a text message 

conversation between Sybil Humphrey and Vicky Basham. The 

Commonwealth objected to the introduction of such evidence claiming it had 

not previously been disclosed to the Commonwealth, per the instruction of the 

trial court’s reciprocal-discovery agreement. The Commonwealth argued that 

Henson should have reasonably anticipated that this text-message 

conversation would come into evidence for impeachment purposes, and thus 

he had a duty to disclose the evidence to the Commonwealth before trial.

While acknowledging the validity of the Commonwealth’s objection, the 

trial court chose not to exclude the evidence in question because of the 

violation of the order but instead required Henson to disclose the evidence to 

the Commonwealth at that time. Despite this late disclosure, the trial court 

permitted Henson to introduce the text-message conversation into evidence.45

In reviewing a trial court’s interpretation and application of a discovery 

order, this Court will find error only if the trial court abused its discretion in 

interpreting the order.46 Thus, we will not overturn the decision of the trial 

 

45 Portions of the text message conversation in question were ultimately 

excluded from evidence on hearsay grounds. However, this exclusion was unrelated to 

Henson’s failure to make proper disclosure of the evidence to the Commonwealth prior 

to trial.

46 Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 931 (Ky. 2013).
20

court unless we find it to be unreasonable, unfair, arbitrary, or unsupported by 

sound legal principles.47 Generally speaking, trial courts are granted broad 

leeway and discretion in entering and enforcing their discovery orders.48

Henson’s argument regarding this issue confounds this Court. Henson

sought to have the text-message conversation entered into evidence. The trial 

court permitted the text-message conversation to be entered into evidence, 

despite acknowledging Henson’s violation of the reciprocal-discovery order.

Henson was hardly prejudiced by the trial court’s requirement that he provide 

the text-message conversation to the Commonwealth once the trial had already 

begun. Most importantly, the video record cited by Henson to show 

preservation of this issue includes footage of Henson withdrawing his objection. 

We find his argument on this topic to be entirely without merit.49 The trial 

court did not abuse its discretion in enforcement of the reciprocal-discovery 

order.

J. The trial court did not abuse its discretion in refusing to allow 

hearsay to be included in Trooper Dreisbach’s testimony at trial.

Before trial, Trooper Dreisbach interviewed four of J.G.’s friends 

regarding what she had told them about the alleged sexual assault. At trial, 

Henson called Trooper Dreisbach as a witness. Specifically, Henson inquired

as to the statements made by J.G.’s friends whom Trooper Dreisbach 

 

47 English, 993 S.W.2d at 945.

48 Id.

49 In addition to the incoherence of Henson’s argument, the section of his brief 

on this topic is deficient under of CR 76.12, lacking citation to legal precedent, a 

factual premise for his argument, and any allegation of prejudice created by the trial 

court’s actions.
21

interviewed. The Commonwealth objected to Trooper Dreisbach’s testimony 

regarding the contents of those conversations as inadmissible hearsay.

In response to the objection, Henson argued that the Commonwealth had 

failed to aid him in locating the four friends of J.G. and thus that he was 

entitled to inquire about the content of their statements made to Trooper 

Dreisbach. The trial court sustained the Commonwealth’s objection, 

prohibiting Trooper Dreisbach from testifying about the statements made to 

him by J.G.’s four friends. 

A trial court’s decision to refuse to admit testimony is an evidentiary 

ruling that this Court reviews under an abuse-of-discretion standard.50 We will 

disturb the trial court’s ruling only if we find it to be “arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.”51

Under KRE 801, hearsay is defined as “a statement, other than one made 

by the declarant while testifying at the trial . . . offered in evidence to prove the 

truth of the matter asserted.”52 In this case, statements made by J.G.’s friends 

in interviews with Trooper Dreisbach were certainly out-of-court statements 

made by one other than Trooper Dreisbach. In fact, because the friends’ 

statements were regarding what J.G. had told them, the statements were 

hearsay within hearsay.

We first address Henson’s contention that the Commonwealth failed to 

help him locate witnesses before trial. Henson claims that he requested the aid 

 

50 Goodyear Tire & Rubber Co., 11 S.W.3d at 577.

51 English, 993 S.W.2d at 945.

52 KRE 801(c).
22

of the Commonwealth by letter. But this letter is not included as an appendix 

to Henson’s brief, nor is a citation to the trial record provided. Henson has not 

properly preserved the argument that the declarant was unavailable to testify 

at trial, meriting an exception to KRE 802’s rule against hearsay, so we decline 

to address it.

Henson claims he attempted to introduce these statements into evidence

as prior inconsistent statements to impeach the testimony of J.G., the victim of 

the alleged crimes. If J.G.’s friends themselves were called to testify to J.G.’s 

prior inconsistent statements, such hearsay could be permitted in evidence 

under KRE 801A provided that a proper foundation were laid.

53 But because 

no hearsay exception applies to Trooper Dreisbach’s testimony, it was properly 

excluded under KRE 802. So we find the trial court did not abuse its 

discretion in ruling that Trooper Dreisbach’s testimony regarding the interviews 

of J.G.’s friends was inadmissible hearsay.

K. The trial court did not abuse its discretion in denying Henson’s 

motion to limit the scope of the Commonwealth’s cross-examination 

of Henson’s character witnesses.

On the second day of trial, Henson filed a motion with the court 

requesting that the scope of cross examination of his character witnesses be 

 

53 The Commonwealth succinctly and accurately outlines the series of events 

that would have been required to find Trooper Dreisbach’s hearsay-within-hearsay 

testimony admissible:

J.G.’s out-of-court statements to her friends would have been admissible 

under KRE 801[A](a)(1), had she testified inconsistently at trial. However, 

under KRS 613(a), Henson had to first confront J.G. with her alleged 

prior inconsistent statements. If J.G. denied making the statements, 

Henson could have called J.G.’s friends to testify as to what J.G. had 

earlier told them. Only if J.G.’s friends denied that J.G. had made the 

statements, could Henson call Trooper Dreisbach to testify as to what 

J.G.’s friends had told him.
23

preemptively limited to Henson’s reputation for honesty and veracity. The trial 

court denied the motion, explaining that the scope of cross-examination is 

determined by the testimony of Henson’s witnesses on direct examination and 

limited to those traits or characteristics raised during direct examination. 

The scope of cross examination falls squarely within the sound discretion 

of the trial court.54 So we review the court’s ruling on a motion to limit the 

scope of cross examination under an abuse of discretion standard.55 Under 

KRE 404(a)(1), the Commonwealth may only offer evidence of the defendant’s 

bad character in rebuttal of evidence of the defendant’s good character offered 

by the defense. However, the evidence that may be offered by the 

Commonwealth is limited in scope to that which rebuts the good character trait 

proffered by the defendant. 

In this case, the trial court properly stated that the scope of permissible 

cross examination is determined by the testimony given by the witness on 

direct examination and not by counsel’s questions on direct examination. 

Thus, the trial court properly declined to preemptively limit the scope of crossexamination before the witness has testified on direct. We find that the trial 

court did not abuse its discretion in refusing to grant Henson’s motion to limit 

the scope of the Commonwealth’s cross-examination.

 

54 Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997). 

55 Baker v. Kammerer, 187 S.W.3d 292, 297 (Ky. 2006).
24

L. The trial court’s admonition to the jury cured any prejudice that 

may have been created by the Commonwealth’s misstatement about 

the findings of Henson’s domestic-violence hearing.

56

During the Commonwealth’s cross-examination of Henson, the 

Commonwealth mentioned a previous domestic-violence order that had been 

entered against Henson for sexual abuse. Henson objected, stating that the 

domestic-violence order was not entered upon a finding of sexual abuse. The 

trial court sustained his objection and admonished the jury to disregard the 

Commonwealth’s statement that the domestic-violence order was issued upon 

a finding of sexual abuse. Henson now argues, without citation to binding 

authority, that the trial court’s admonition did not cure the error and the jury 

was improperly prejudiced against him.

The decision to give an admonition to the jury is an evidentiary ruling 

that we review under an abuse-of-discretion standard.57 We will disturb the 

trial court’s decision only if it is arbitrary, unfair, unreasonable, or 

unsupported by sound legal principles.

A jury is presumed to follow a curative admonition and thus such an 

admonition cures any error.58 The presumption of an admonition’s curative 

effect is overcome only by showing that there is either an “overwhelming 

probability that the jury will be unable to follow the admonition and there is a 

 

56 In this section of Henson’s brief, he also raises arguments concerning 

allegedly improper evidence regarding Child Protective Services, the existence of an 

allegedly incriminating note found in J.G.’s backpack, and the spoliation of evidence. 

Because none of these arguments are included in Henson’s Statement of Points and 

Authorities nor are they sufficiently briefed in compliance with CR 76.12, we decline to 

address them here.

57 Goodyear Tire & Rubber Co., 11 S.W.3d at 577.

58 Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021).
25

strong likelihood that the effect of the inadmissible evidence would be 

devastating to the defendant” or that the question was highly prejudicial or

inflammatory and lacked any factual basis.

59

In this case, upon Henson’s request, the trial court gave the jury an 

admonition. The jury was told to disregard the Commonwealth’s question as it 

related to a domestic-violence order entered upon a finding of sexual abuse.

Henson did not object to the language of the admonition, nor did he request 

that the trial court declare a mistrial. Given the curative presumption of the 

admonition and Henson’s failure to preserve any other objection, we find that 

the trial court did not abuse its discretion in admonishing the jury in order to 

cure any error created by the Commonwealth’s mischaracterization of this 

evidence. 

M. The trial court did not abuse its discretion in overruling Henson’s 

objections to admission of images of a “kegerator” into evidence.

At trial, the Commonwealth introduced into evidence a series of 

photographs taken at the home where J.G. and Henson resided at the time of 

the alleged crimes. Two of those photographs depicted a kegerator—a small 

refrigerator that holds a keg from which beer can be dispensed. The 

photographs were authenticated by Joy, and she stated that she did not know 

when the photographs were taken. Henson did not allege that the photographs 

inaccurately represented the rooms and items they depicted. While on the 

stand, Trooper Dreisbach testified that he took the photographs during his 

 

59 Id. (citing Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003)); 

Johnson, 105 S.W.3d at 441. 
26

investigation. Henson did not dispute the presence of the kegerator in the 

home. 

The determination of the sufficiency of the authentication of evidence is 

within the discretion of the trial court.60 We review the trial court’s 

determination of the authenticity of evidence for abuse of discretion.61

Generally, the foundational authenticity of a photograph can be laid by 

testimonial verification of its fair and accurate portrayal of that which it is 

supposed to represent.62 It is unnecessary for the witness testifying as to the 

authenticity of a photograph to be the photographer, nor does he or she need 

to have personal knowledge of the time when the photograph was taken.63

Henson’s brief is critically deficient on this argument. First and 

foremost, he makes insufficient reference to the record documenting where this 

argument is preserved. Henson’s reference to “Post Trial Motions ROA 133-

162” does not constitute a citation to the record sufficient to inform this Court 

of the location of his properly preserved arguments. CR 76.12 requires that an 

appellant’s argument begin with a statement of preservation “with reference to 

the record showing whether the issue was properly preserved for review and, if 

so, in what manner.” A reference to Henson’s post-trial motions is not such a 

reference. Although this argument may have been preserved by objection at 

 

60 Braufman v. Commonwealth, 612 S.W.3d 850, 866 (Ky. 2020). 

61 Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004).

62 KRE 901; R. Lawson, The Kentucky Evidence Law Handbook § 11.05, at 599 

(3d ed. Michie 1993).

63 Litton v. Commonwealth, 597 S.W.2d 616, 618-19 (Ky. 1980). 
27

trial, that objection is not cited in Henson’s statement of preservation as 

mandated by CR 76.12.

Second, within Henson’s argument, the facts asserted do not align with 

the citations made to the trial record. Additionally, he does not state with 

specificity those exhibits with which he takes issue. This Court will not search 

the trial record for verification of Henson’s asserted facts. This Court has made 

clear that it “will not sift through a voluminous record to try to ascertain facts 

when a party has failed to comply with its obligation under [the] Kentucky 

Rules of Civil Procedure . . . to provide specific references to the record.”

64

Third, Henson’s argument on this topic is not founded on sound legal 

principles. His argument makes no citation to either binding or persuasive 

legal precedent. Instead, he simply claims the evidence admitted was “highly 

prejudicial,” though he provides no legal foundation for claiming that the trial 

court erred in admitting the evidence. Henson’s threadbare and inaccurate 

recitation of facts does not form an intelligible argument, and we refuse to craft 

one for him. 

Due to the incoherence and deficiency of Henson’s argument on this 

matter, we summarily affirm the ruling of the trial court that the photos were 

sufficiently authenticated and properly admitted into evidence.

N. The trial court did not abuse its discretion in refusing to instruct 

the jury on attempted sodomy or voluntary intoxication.

Upon conclusion of the evidence, Henson requested that the trial court 

instruct the jury on voluntary intoxication and attempted sodomy. The trial 

 

64 Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009).
28

court denied this request, instead instructing the jury on first-degree sodomy 

and first-degree sexual abuse as charged in the indictment. Henson now 

contends that the trial court erred in denying his proposed instructions.

A trial court’s decision to instruct the jury on a specific claim is reviewed 

for abuse of discretion.65 We will disturb the trial court’s decision only if we 

find it to be unfair, unreasonable, arbitrary, or unsupported by sound legal 

principles.

A trial judge has a duty to instruct the jury on “the whole law of the 

case,” which includes instructions that might apply to every state of the case 

supported to any extent by the testimony provided.66 But the duty to instruct 

the jury on lesser-included offenses, like attempted sodomy, does not extend

past the evidentiary foundation laid at trial.67 In determining which issues 

should be submitted to the jury, the trial court should take into account the 

totality of the circumstances.68

In this case, it was within the trial court’s discretion to determine that 

the evidence presented at trial could not support a reasonable inference that 

Henson could be guilty of attempted sodomy. As Henson produces no legal 

basis in support of his position, nor does he provide specific facts that he 

alleges support an instruction on attempted sodomy, we find that the trial 

 

65 Herp v. Commonwealth, 491 S.W.3d 507, 512 (Ky. 2016). 

66 Williams v. Commonwealth, 208 S.W.3d 881, 883 (Ky. 2006).

67 Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). 

68 Commonwealth v. Collins, 821 S.W.2d 488, 491 (Ky. 1991).
29

court did not abuse its discretion in refusing to instruct the jury on attempted 

sodomy.

Similarly, the trial court did not err in refusing to instruct the jury on 

voluntary intoxication. Neither first-degree sodomy nor first-degree sexual 

abuse has a requisite intent element.69 There is no mental state required for 

the commission of these crimes. As a result, this Court has held that voluntary 

intoxication is not a defense to sodomy.

70 Because there is no requisite intent, 

we find, on the same grounds, that voluntary intoxication is not a defense to

sexual abuse. Therefore, the trial court did not abuse its discretion in refusing 

to instruct the jury on the defense of voluntary intoxication.

O. The trial court did not err in overruling Henson’s Motion for a 

Directed Verdict of Acquittal.

At the end of the Commonwealth’s case-in-chief, Henson moved for a 

directed verdict of acquittal, arguing that the Commonwealth had produced 

insufficient evidence to support a guilty verdict on the counts with which he

was charged. In support of this position, Henson stated that there was no 

evidence of his sexual gratification; that his statements to police were 

improperly admitted into evidence; that there was no evidence of penetration 

provided; and that no evidence was provided to corroborate J.G.’s accusations 

against him. Upon the Commonwealth’s refutation of each of these arguments, 

the trial court denied Henson’s motion for a directed verdict of acquittal.

 

69 See KRS 510.070; KRS 510.110.

70 Malone v. Commonwealth, 636 S.W.2d 647, 648 (Ky. 1982).
30

In reviewing a trial court’s denial of a motion for a directed verdict, we 

consider whether, under the evidence as a whole, it would be clearly 

unreasonable for a jury to find the defendant guilty of the offenses charged.

Only upon such a finding can we conclude that an appellant was entitled to a 

directed verdict of acquittal.71 We construe all evidence in the light most 

favorable to the Commonwealth, the non-moving party.72

Several of the grounds on which Henson moved for a directed verdict are 

clearly without merit. First, he contends that no evidence was provided that he 

intended to receive sexual gratification from touching J.G. However, intent 

may be inferred from the defendant’s actions and the circumstances 

surrounding those actions.73 Additionally, the jury is permitted broad latitude 

in inferring intent of the defendant from the evidence presented.74 Second, 

Henson alleges that the Commonwealth’s case is inadequate because no 

evidence was offered that he penetrated the victim. However, this Court has 

long held that penetration is not a necessary element to the crime of sodomy.75

Last, Henson alleges that, without corroboration, J.G.’s accusation against him 

is not sufficient evidence under which a jury could convict him. We disagree. 

It is within the purview of the jury to weigh J.G.’s accusations and determine 

her credibility.76

 

71 Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001).

72 Jones, 283 S.W.3d at 668.

73 Edmondson v. Commonwealth, 526 S.W.3d 78, 87 (Ky. 2017) (quoting 

Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988)). 

74 Id.

75 Hulan v. Commonwealth, 634 S.W.2d 410 (Ky. 1982).

76 Commonwealth v. Cox, 837 S.W.2d 898, 900 (Ky. 1992).
31

The grounds on which Henson’s motion for a directed verdict rest are 

insufficient. Henson understands neither the law nor the role of the jury. The

Commonwealth presented sufficient evidence in its case in chief under which a 

reasonable jury could find the elements of first-degree sexual abuse and firstdegree sodomy to have been met. As such, we find that the trial court did not 

err in denying Henson’s motion for a directed verdict of acquittal.

P. The trial court did not err in giving an Allen charge to the jury in 

response to their note at 9:05 p.m.

At 10:50 a.m. on March 18, 2020, the parties completed their closing 

arguments, and the jury began deliberations. At 9:05 p.m., the jury sent a 

note to the trial court judge, reading, “Q: We are [at] a hung jury (11-1) and the 

final juror says there is not anymore evidence that can swing them one way or 

another? Do we continue to deliberate?” The trial court ordered the jury to 

return to the courtroom where he read them an Allen charge.

77 The charge 

given by the judge was taken verbatim from RCr 9.57. The judge then ordered 

the jurors to return to the jury room to continue deliberations.

In reviewing the trial court’s provision of an Allen charge to the jury, we 

consider whether, under the totality of the circumstances, the charge coerced 

the jury to come to an agreement.78 The U.S. Supreme Court has held that 

there is no error in providing such an instruction to the jury in an effort to 

prevent a hung jury.79

 

77 Allen v. United States, 164 U.S. 492, 501 (1896).

78 Gray v. Commonwealth, 480 S.W.3d 253, 272 (Ky. 2016). 

79 Allen, 164 U.S. at 501.
32

In this case, in the face of a deadlocked jury, the trial court did precisely 

what this Court has instructed trial courts to do under RCr 9.57(1).80 Careful 

review of the trial court record reveals no evidence of coercion in the court’s 

instruction to the jury. In the absence of other coercive factors, we decline to 

find an abuse of discretion to have occurred when the trial court followed this 

Court’s explicit instructions.

Henson also contends that the trial court’s provision of an Allen charge 

was improper because the trial court was aware of the vote count among the 

jurors at that time. Although under RCr 9.57(2) the trial court is not permitted 

to poll the jury during its deliberations, in this case, the foreperson voluntarily 

revealed the numerical division of the jurors without prompting from the trial 

court. This information was volunteered to the trial court, outside the presence 

of the other jurors, and we do not find that such a revelation had a coercive 

effect on the jury.

Upon receiving the unsolicited poll of the jury, Henson requested that the 

poll be shared with the parties. The trial court denied this request. Henson

now claims that this constitutes a grievous error, but he fails to cite any rule or 

precedent under which he is entitled to this information. Both Henson and the 

Commonwealth were denied this information, and we find that such a denial 

neither prejudiced Henson nor constituted error on the part of the trial court. 

In his brief, Henson argues extensively about the impropriety of a trial 

court providing a jury with multiple Allen charges. This argument lacks merit 

 

80 Commonwealth v. Mitchell, 943 S.W.2d 625, 627 (Ky. 1997). 
33

on several grounds. Primarily, the trial court in this case only offered one Allen 

charge to the jury. Further, Henson clearly and consistently misunderstands 

the distinction between mandatory, binding authority and those authorities 

that are merely persuasive to this Court. Henson’s brief makes many citations 

to the Ninth Circuit Court of Appeals and its rule that repetition of an Allen

charge to a deadlocked jury constitutes reversible error. However, he fails to 

recognize that the Ninth Circuit is the only circuit that has adopted such a 

rule. Because this issue is not factually before us today, we decline to take a 

position on it.

Lastly, Henson contends that provision of an Allen charge to a jury with a 

single “holdout” juror is necessarily coercive. He cites to the Ninth Circuit 

Court of Appeals’ rule that when the trial court inquires into the numerical 

division of the jurors and then provides them an Allen charge, the charge is per 

se coercive and requires reversal. We decline to adopt such a rule. Instead, we 

consider the totality of the circumstances in determining whether the trial 

court coerced the jury into coming to a verdict.

After careful consideration of the totality of the circumstances, we find 

that the trial court’s 9:05 p.m. Allen charge to the jury was not coercive and 

thus the trial court did not err in providing such an instruction.

Q. The trial court did not err in communicating with the jury at 12:11 

a.m.

After the 9:05 p.m. Allen charge was delivered, the jury continued to 

deliberate until approximately 12:11 a.m. when the judge sent a note to the 

jury, reading, “Jurors, Do you believe continued deliberations would be 

productive to reach a verdict? If yes, do you want to continue to deliberate 
34

tonight or break until later on Thursday? If you take a break, I will make 

arrangements for each of you to stay in a hotel tonight.” Henson consented to 

the judge’s sending this note to the jury while the Commonwealth objected. At 

1:08 a.m., the jury returned to the courtroom and announced its verdict—

Henson was guilty of both first-degree sodomy and first-degree sexual abuse.

Henson now contends that the trial court’s note to the jury was coercive 

and inappropriate. In determining whether the actions of a trial court were 

coercive to the jury, we consider whether the instruction provided forced an 

agreement on a verdict or whether it simply forced deliberation which resulted

in an agreement.81

Before communicating with the jury, the trial court consulted the parties 

regarding whether they wanted the jury to continue deliberating through the 

night or to break until the next day. Henson recommended that the judge 

interrupt the jury and send them his note. With this statement, Henson waived 

any objection to the trial court’s communication with the jury, instead inviting 

this supposed error. As this potential error was invited by Henson, it is not 

subject to appellate review, and we decline to address it any further.

III. CONCLUSION

For the reasons stated, we affirm the judgment.

All sitting. All concur.

 

81 Bell v. Commonwealth, 245 S.W.3d 738, 742 (Ky. 2008), overruled on other 

grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008).
35

COUNSEL FOR APPELLANT:

Dwight Preston

Lewis & Preston, PLLC

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Aspen Roberts

Assistant Attorney General

Office of the Solicitor General