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RENDERED: FEBRUARY 16, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0477-MR

BILLY CLARK, III APPELLANT

V. ON APPEAL FROM BUTLER CIRCUIT COURT

HONORABLE TIMOTHY COLEMAN, JUDGE

NO. 20-CR-00007

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This case comes before the Court on appeal as a matter of right1 by Billy 

Clark, the Appellant, from the judgment and sentence of the Butler Circuit 

Court. After a jury trial, Clark was convicted of first-degree rape (victim under 

twelve); first-degree sodomy (victim under twelve); two counts of sexual abuse

in the first degree; and use of a minor in a sexual performance.2 The jury then 

found him guilty of being a persistent felony offender in the first degree. He was 

sentenced to fifty years in prison and now appeals. For the following reasons, 

we affirm.

1 Ky. Const. § 110(2)(b).

2 Clark had also been charged with kidnapping, but the trial court had granted 

a directed verdict in favor of Clark on that charge. 
2

I. Facts

In July 2014, the victim, M.R., lived with her mother at Roger Garner’s 

house.3 M.R. was eight years old. Her mother was a drug user, and Garner’s 

house was frequented by other drug users who would stay at the house for 

random periods of time. At this time, Billy Clark used Garner’s house to 

hideout as he was wanted by law enforcement in connection with a stolen 

hearse.

Approximately five years later in July 2019, M.R. was thirteen years old and 

living with her grandmother. M.R. ran away and stayed with a friend for a 

couple of days. During this time M.R. first disclosed to her friend that she had 

been sexually assaulted in July 2014. After that, M.R. told her grandmother, 

and the latter told M.R.’s father. M.R.’s father reported the assault to the 

police. 

State Trooper Carlock was the initial lead investigator of the case and he 

scheduled M.R. for an interview with Dr. Patricia Faulkner-Simmons at the 

Barron River Child Advocacy Center. State Trooper Edwards eventually took 

over as lead investigator. He showed a 2018 photo of Billy Clark to M.R. who,

seeing the photo, identified Clark as her assailant. M.R. also testified that she 

remembered the assault taking place when a hearse was on Garner’s property 

and a man was staying there who was on the run from the police. 

M.R. testified as to the details of the assault. Her mother had gone to the 

store, and M.R. was in a bedroom folding laundry. Clark entered the bedroom 

3 We use initials to protect the privacy of the victim. 
3

and she tried to leave. She testified that Clark brought a knife and gun with 

him into the room but did not use them in the assault. M.R. attempted to leave 

but Clark grabbed her arm and pulled her back into the room. He then 

instructed her to remove her clothing and had her walk around the room. He 

then forced her to bend over on the bed, where he touched various parts of her 

body and held her by the wrists, threatening her with violence if she told 

anyone about what was happening. Clark then put on a condom and M.R. 

testified that her vagina hurt “really bad” for a number of minutes. Afterward, 

Clark instructed M.R. to sit up and compelled her to remove the condom from 

his penis. Although she did not identify the substance, M.R. testified something 

was in the condom, presumably semen. Clark next instructed M.R. to put 

another condom on his penis and forced her to perform oral sex. After that was 

over, Clark noticed M.R. was bleeding and told her to go take a shower. He also 

once again threatened to hurt her and her mother if she told anyone what 

happened. 

Dr. Faulkner-Simmons testified that M.R. was born with an abnormally 

webbed vagina which would have made sexual intercourse painful for M.R. Dr. 

Faulkner-Simmons indicated that this condition would have prevented full

penetration, but her examination of M.R. after five years could not discount 

whether an attempt at penetration had been made. Additionally, she testified 

any wounds stemming from the assault would have been healed by the time of 

her examination. In short, there is no medical evidence confirming or 

disproving M.R.’s account. 
4

Dr. Faulkner-Simmons testified about a statement M.R. made, which Clark 

challenges as inadmissible hearsay. First, Dr. Faulkner-Simmons read from 

her report summarizing M.R.’s statements during her interview of her, that 

she did disclose to me as well that she was sexually abused by an 

individual, um, and she described, where she was, who some of 

the people that were there. Uh, she also named the individual that 

she said abused her, um, and she said that he actually had a knife 

and a gun and showed them to her. And, um, she was told, excuse 

me, told not to tell anyone . . .

This testimony was objected to at trial in regard to referencing the knife and 

gun, hence preserved. Later, Dr. Faulkner-Simmons testified, 

I forgot to mention that when he came in, he had turned all the 

lights off in the room where she was. He also had her to put his 

penis in her mouth, and then from there, she kind of closed down 

and said she had blocked out all the other details and couldn’t 

remember anymore. Which is not an unusual occurrence.

This last statement was not objected to at trial hence the alleged error is 

unpreserved. 

Finally, there is one instance during voir dire that is subject to appeal. Clark 

moved the trial court to strike Jurors 18 and 19 for cause. These motions were 

denied, forcing him to use peremptory challenges which he would have used on 

Jurors 32 and 3, and these jurors were identified to the trial court on the strike 

sheet prior to seating the jury. Juror 32 was excused because 16 jurors had 

already been selected thus mooting any challenge to Juror 18. But Juror 3 sat 

on the jury, serving as foreperson. Because Juror 3 did sit on the jury, we 

review for error as to Juror 19 since Clark’s preservation of this issue comports 

with Neal v. Floyd, 590 S.W.3d 245, 252 (Ky. 2019). See also Gabbard v. 
5

Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009) (holding that failure to strike 

a juror for cause “can be shown to be non-prejudicial if the other jurors the 

defendant would have used his peremptory strikes on do not actually sit on the 

jury.”). 

As for Juror 19, he was a former coroner in Ohio County and had previously 

served as a witness in a case which the lead prosecutor in this case had also 

prosecuted. It was the prosecutor who brought this to the attention of the 

Court. Juror 19 was brought to the bench and informed the Court he did not 

remember the prosecutor and would not be preferential to the Commonwealth 

if selected as a juror. 

Clark argues the trial court committed error by: refusing to strike Jurors 18 

and 19 for cause, as noted, however, the challenge to Juror 18 is mooted 

because Juror 32 did not sit on the jury; allowing Dr. Faulkner-Simmons’ 

hearsay statements; prohibiting Clark’s attorney from questioning M.R. 

regarding her knowledge of her uncle’s alleged rape and sodomy charges; and 

failing to direct a verdict on the charge for rape, as M.R. never specifically 

testified to vaginal penetration by Clark and Dr. Faulkner-Simmons’ stated that 

in her medical opinion M.R. was not penetrated vaginally by Clark. We now 

address the merits and further facts will be developed as necessary. 

II. Analysis

A. No Abuse in Refusal to Strike Juror 19

“When there is reasonable ground to believe that a prospective juror cannot 

render a fair and impartial verdict on the evidence, that juror shall be excused 
6

as not qualified.” RCr4 9.36. We have held time and again that partiality is a 

state of mind and not a technical question, thus “the test is whether the nature 

and strength of the opinion formed are such as in law necessarily . . . raise the 

presumption of partiality.” Gabbard, 297 S.W.3d at 854 (quoting Montgomery v. 

Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991)). This requires the trial court 

to “weigh the probability of bias or prejudice based on the entirety of the juror's 

responses and demeanor[,]” as well as “the credibility of the juror's answers.” 

Jackson v. Commonwealth, 392 S.W.3d 907, 913 (Ky. 2013). We have also 

emphasized that there is no such thing as rehabilitation. Gabbard, supra, at 

853-54. Where a juror has made statements evincing a reasonable ground to 

believe he or she is partial the juror ought to be disqualified, and neither the 

Commonwealth, defense, nor the trial court may subject the juror in question 

to a colloquy in hopes of salvaging that juror. Indeed, even where a juror’s 

partiality is in a “gray area, he should be stricken.” Wallace v. Commonwealth, 

478 S.W.3d 291, 298 (Ky. 2015). 

As for Juror 19, the sole basis advanced for his disqualification is that he 

was a coroner in an adjacent county and had previously been a witness in a 

rape and murder case that the prosecutor in this case had also prosecuted. 

Clark cites no statements during voir dire by Juror 19 that could be construed 

as giving a reasonable basis for partiality to the Commonwealth. We reject his 

citation to Futrell v. Commonwealth, 471 S.W.3d 258, 274 (Ky. 2015) as 

4 Kentucky Rules of Criminal Procedure. 
7

distinguishable. In that case, the juror with a previous relationship to the 

assistant prosecutor had stated 

When asked during the prosecutor's voir dire whether his 

relationship with attorney Tobbe would “cause you to 

automatically give the Commonwealth's case or witnesses more 

weight than you would anything else?” Juror 75 replied, “I think 

so.” The prosecutor then asked whether Juror 75's relationship 

with attorney Tobbe would make it difficult for the juror to vote to 

acquit the defendants even if he felt the Commonwealth had failed 

to prove its case, and Juror 75 responded, “I really can't answer 

that. I'm trying to be honest with you.”

Id. at 273. No similar responses occurred here, and the Futrell court obviously 

found partiality for Juror 75 based on his responses and not merely his 

connection to the assistant prosecutor alone. The other juror that should have 

been disqualified for his relationship to the assistant prosecutor was based on 

his son being a current client of the attorney. Id. at 274. But this Court noted 

other reasons existed to disqualify that juror as well. Id. at 275. 

In Fugate v. Commonwealth, we held the trial court should have disqualified 

two jurors for cause because they had a previous relationship with the 

prosecutor. 993 S.W.2d 931, 938 (Ky. 1999). One had had a living will and 

incorporation papers for a business prepared by the prosecutor five years prior 

to trial. Id. He expressed his satisfaction with the work and stated he might 

seek his services in the future. The second was involved with the prosecutor 

because of a bad check criminal case that was pending at the time of voir dire. 

The juror and prosecutor had apparently gotten close enough to be on a first 

name basis. Id. at 939. This Court explicitly endorsed the rule that “a trial 

court is required to disqualify for cause prospective jurors who had a prior 
8

professional relationship with a prosecuting attorney and who profess that they 

would seek such a relationship in the future.” Id. at 938. 

Fugate is distinguishable because Juror 19 was not professionally involved 

with the prosecutor in the same manner as in Fugate. In Fugate, both jurors 

had a relationship with the prosecutor in which they had a personal interest at

stake—one had a will and business incorporation papers filed on his behalf, 

and the other had a criminal case pending wherein his business was the 

victim. Here, the only relationship between Juror 19 and the prosecutor was 

brought about by their mutual professional obligations where Juror 19 had to 

testify as coroner in a murder case. Indeed, Juror 19 denied recognizing the 

prosecutor despite that. Additionally, Clark has argued that Juror 19 should be 

considered a member of law enforcement. But we have held that even police 

officers should not be disqualified merely because they are police officers, and 

thus work with the Commonwealth Attorney’s office in a professional capacity. 

Brown v. Commonwealth, 313 S.W.3d 577, 597 (Ky. 2010). Because we find 

Fugate distinguishable, and there being no statement identified by Clark that 

could lead to a reasonable basis of partiality, we find no abuse of discretion by 

the trial court in declining to strike him for cause. 

B. Harmless Error in Dr. Faulkner-Simmons’ Hearsay Statements

The Kentucky Rules of Evidence provide an exception to hearsay for medical 

treatment when the “[s]tatements [are] made for purposes of medical treatment 

or diagnosis and describing medical history . . .” KRE 803(4). The 

Commonwealth concedes the hearsay in this case. Dr. Faulkner-Simmons’ 
9

mention of the gun and knife had no relation to her medical treatment or 

diagnosis since there was no evidence the gun and knife were used to inflict a 

physical injury upon M.R. or that they had caused her some kind of emotional 

trauma. As to her statement that it was not an “unusual occurrence” when 

M.R. described blocking out memories of her assault, that too is generally 

prohibited because it is testimony as to a “habit of a class of individuals[,]” 

Sanderson v. Commonwealth, 291 S.W.3d 610, 613 (Ky. 2009) (quoting Kurtz v. 

Commonwealth, 172 S.W.3d 409, 414 (Ky. 2005)), intending “to prove that the 

person was a member of that class because he/she acted the same way under 

similar circumstances.” Id. Sanderson gives an adequate review of this Court’s 

jurisprudence demonstrating our distrust of testimony which tends to invade 

the province of the jury by finding criminal conduct based on a psychological 

syndrome of a victim. Id. at 612-14. 

But “[n]o error . . . is ground for granting a new trial or for setting aside a 

verdict or for vacating, modifying or otherwise disturbing a judgment or order 

unless it appears to the court that the denial of such relief would be 

inconsistent with substantial justice.” RCr 9.24. Regarding Dr. FaulknerSimmons’ statement about the gun and knife, the error was harmless. The 

Commonwealth correctly notes that defense counsel did not ask for the 

statement to be stricken from the record nor for an admonition to the jury to 

disregard it. She only asked that the doctor’s testimony be kept within proper 

bounds regarding medical treatment and diagnosis. The rest of her testimony 

conformed (with one exception that was not objected to at trial, discussed 
10

below) to that request despite the trial court overruling her motion. Technically 

speaking, the trial court ought to have sustained the objection but 

substantively Clark “received all the relief he requested . . . thus, there is no 

error to review.” Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). 

As to the “not an unusual occurrence” statement, being an unpreserved 

objection, our review is for palpable error. “A palpable error must be so grave in 

nature that if it were uncorrected, it would seriously affect the fairness of the 

proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Only 

if the reviewing court is convinced “the result in the case would have been 

different without the error[,]” will palpable error be found. Id. In King v. 

Commonwealth, we held that it was not palpable error when a police 

investigator testified that “delayed reporting” was not unusual in child sexual 

abuse cases, and in fact it was “very rare” for children to immediately report 

such abuse. 472 S.W.3d 523, 527 (Ky. 2015). Although the testimony here was 

qualitatively different, relating to M.R.’s blocked memory of the assault rather 

than the five-year delay in reporting, both fundamentally involve typical 

behavior of a victim of sexual abuse. But in like manner as in King, the 

testimony here did not result in a manifest injustice. The testimony in King was 

much more extensive than the one-off sentence expressed, unprompted, by Dr. 

Faulkner-Simmons here. The Commonwealth did not pursue an improper line 

of inquiry afterwards but rather moved Dr. Faulkner-Simmons’ testimony along 

to the concrete, physical facts of M.R.’s case. We are not convinced the result in 
11

this case would have been different but for Dr. Faulkner-Simmons’ one short 

statement. 

C. Right to Cross-Examination was not Infringed 

Clark also contends that his right to cross-examination was violated when 

the trial court precluded him from asking M.R. about how she acquired 

knowledge regarding the sexual acts she described as being perpetrated by 

Clark. In other words, Clark alleges that M.R. had previously heard familial 

discussions regarding her uncle who also had been charged with rape and 

sodomy prior to her first reporting the assault. Clark contends that it was her 

knowledge of these charges against her uncle that allowed M.R. to concoct the 

allegations against him. Moreover, Clark implies in his briefing that M.R. made 

up the story of an assault to avoid getting in trouble for running away; and her 

knowledge of her uncle’s alleged rape and sodomy charges was relevant to that 

alternate theory. We note that while the trial court prohibited questions 

regarding her uncle, it did say Clark could cross examine M.R. regarding her 

alleged motivation to accuse him of rape in order to avoid getting in trouble for 

running away. 

In Basham v. Commonwealth, we held the constitutional right to cross 

examination “does not give criminal defendants a right to present evidence that 

is not probative, nor does it authorize a fishing expedition at trial.” 455 S.W.3d 

415, 420 (Ky. 2014). Basham had sought to cross examine the victim regarding 

her visiting pornographic websites in order to provide evidence that she “was 

previously exposed to the sort of sexual acts that she described in her 
12

allegations of abuse.” Id. at 419. This has come to be known as the “sexual 

innocence inference.” “[B]ecause most children of tender years are ignorant of 

matters relating to sexual conduct, a child complainant's ability to describe 

such conduct may persuade the jury that the charged conduct in fact 

occurred.” Id. at 418 n.7 (quoting Grant v. Demskie, 75 F.Supp.2d 201, 213–16 

(S.D.N.Y. 1999)). Basham, however, had only sought to ask the victim if she 

had ever visited a website with naked people on it. Consequently, we held 

“merely seeing images of naked people” was not an adequate alternate source 

of knowledge for the sexual acts alleged in that case, thus the offer of proof was 

neither probative nor relevant and therefore inadmissible. Id. at 420. 

Although Clark has not alleged the jury would have inferred from M.R.’s age 

alone that her knowledge of sexual acts could only be explained by her 

experiencing them because of Clark’s assault, the underlying rationale of 

Basham is still applicable. Like in Basham, Clark’s offer of proof lacks the 

requisite specificity for the Court to say it was relevant. There is nothing in the 

record to demonstrate M.R.’s uncle’s alleged rape and sodomy were in anywise 

similar to what she claims to have undergone, nor is there any avowal 

testimony that she overheard any family discussions regarding her uncle’s 

alleged actions. The line of questioning was irrelevant and inadmissible, and 

the trial court properly excluded it. 

D. No Error in Refusal to Direct a Verdict on Rape Charge

Finally, Clark argues the trial court should have directed a verdict in his 

favor on the rape charge because Dr. Faulkner-Simmons testified she did not 
13

believe penetration occurred and M.R. never specifically testified to being 

penetrated vaginally by Clark.

The legal standards for a directed verdict motion are clear: ‘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.’ Trowel v. Commonwealth, 550 S.W.2d 530, 

533 (Ky. 1977). ‘The trial court must draw all fair and reasonable 

inferences from the evidence in favor of the party opposing the 

motion, and a directed verdict should not be given unless the 

evidence is insufficient to sustain a conviction. The evidence 

presented must be accepted as true. The credibility and the weight 

to be given the testimony are questions for the jury 

exclusively.’ Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). 

The standard for appellate review is equally clear: ‘on appellate 

review, the test of a directed verdict is, if under the evidence as a 

whole, it would be clearly unreasonable for a jury to find guilt, only 

then the defendant is entitled to a directed verdict of 

acquittal.’ Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 

1991).

Eversole v. Commonwealth, 600 S.W.3d 209, 217-18 (Ky. 2020). “We construe 

all evidence below in a light most favorable to the Commonwealth.” 

Commonwealth v. Jones, 497 S.W.3d 222, 225 (Ky. 2016). 

Our analysis depends first and foremost on the statute. First-degree rape 

occurs when one “engages in sexual intercourse with another person” by 

forcible compulsion or the victim is either physically helpless or is twelve years 

or younger. KRS5 510.040. “Sexual intercourse” has been defined by the 

General Assembly as “its ordinary sense and includes penetration of the sex 

organs of one person by any body part or a foreign object manipulated by 

another person.” KRS 510.010(8). Any penetration, “however slight[,]” is all that 

5 Kentucky Revised Statutes. 
14

is required to meet the element of the crime. Id. Because the legislature has 

also defined “deviate sexual intercourse” to mean “any act of sexual 

gratification involving the sex organs of one person and the mouth or anus of 

another[,]” rape in the first degree of a female is necessarily limited to 

penetration of her vagina. KRS 510.010(1). 

The peculiarity of this case arises from M.R.’s vaginal abnormality. Because 

of this abnormality, Dr. Faulkner-Simmons did state “I do not believe she had a 

penis penetrating her vaginal area.” But that is one, isolated sentence and does 

not accurately convey the whole of her testimony. Dr. Faulkner-Simmons 

described M.R.’s abnormality as “The vaginal opening wasn’t a normal one-hole 

opening. It was webbed, if you will, and had multiple openings because there 

was tissue that criss—you know, crossed over from each side.” Because of this 

she also stated, “If there was a potential for penetration, it probably would not 

have gone through, but it would have been painful.” Thus, the Commonwealth 

asked “Could the penis have penetrated the vagina, just not fully?” To which 

she responded unequivocally “Right. Correct.” It is therefore incorrect to 

describe Dr. Faulkner-Simmons’ opinion as no penetration whatsoever 

occurred. She admitted an attempt at penetration could have occurred and 

that it could have been less than full penetration, i.e., “however slight.” But we 

have already detailed that the physical medical evidence was lacking to confirm 

any kind of penetration, so the case depended upon M.R.’s own testimony.6

6 “The testimony of a single witness is enough to support a conviction.” King, 

supra, at 526. 
15

M.R.’s testimony never included an explicit statement with the term 

“penetration.” But “[t]he fact of penetration may be proved by circumstances.” 

Jones v. Commonwealth, 833 S.W.2d 839, 841-42 (Ky. 1992). Moreover, 

“[a] jury may make reasonable inferences from circumstantial evidence.” 

Commonwealth v. James, 586 S.W.3d 717, 721-22 (Ky. 2019). And as we have 

just stated, on a motion for a directed verdict the trial court is required to make 

all fair and reasonable inferences in favor of the Commonwealth, as well as 

accepting M.R.’s account as true. Eversole, supra.

M.R. testified during Clark’s attack that “I just looked down and something 

hurt really, really bad.” In another colloquy with the Commonwealth she again 

stated, 

M.R.: “Something really, really bad hurt.” 

Commonwealth: “What part of your body hurt?” 

M.R.: “My vagina.” 

Commonwealth: “Was that before or after he put on the 

condom?” 

M.R.: “After.”

Finally, she testified after the attack “I was bleeding and stuff . . . he told me to 

go take a shower.” Dr. Faulkner-Simmons testified that M.R.’s abnormality 

would have made penetration painful, and common sense tells us that an 

eight-year-old would have experienced pain upon being penetrated vaginally. 

There is no logical explanation for the pain M.R. described if penetration did 

not occur. M.R.’s testimony of bleeding after the attack also has no logical 

explanation without penetration as there was no other testimony that he 

otherwise beat her or cut her. We cannot say, viewing the evidence as a whole, 
16

that it was unreasonable for a jury to find Clark had raped M.R. Dr. FaulknerSimmons’ testimony does not discount some kind of penetration occurring, and 

a juror could (in fact, did) make reasonable inferences from M.R.’s testimony 

that some kind of penetration of her vagina had occurred.

III. Conclusion

For the aforementioned reasons, we affirm Clark’s convictions. 

All sitting. All concur.

COUNSEL FOR APPELLANT:

Aaron Reed Baker

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Mark D. Berry

Assistant Attorney General