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ACTION.RENDERED: FEBRUARY 20, 2020

NOT TO BE PUBLISHED

GLEN A. DAVIS APPELLANT

ON APPEAL FROM SCOTT CIRCUIT COURT

V. HONORABLE PAUL F. ISAACS, JUDGE

NO. 13-CR-00179

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Glen A. Davis appeals as a matter of right from the Scott Circuit Court

judgment sentencing him to seventy years in prison for four counts of use of a

minor in a sexual performance. On appeal, Davis argues (1) the trial court

erred by denying the motion to sever the four counts of use of a minor in a

sexual performance from other charges for which he was acquitted including

incest and rape; (2) the trial court erred by admitting the four photos into

evidence; (3) the trial court erred by denying Davis ’ s request for a lesser

included offense instruction; (4) the trial court erred in denying the motion for

a mistrial due to a Brady violation; 1 and (5) the jury selection procedures were

improper.

1 Brady v. Maryland, 373 U.S. 83 (1963).FACTS AND PROCEDURAL HISTORY

Glen A. Davis and his wife, Megan Davis, were married in 1995. After

moving to Scott County, the couple had two daughters: M.D., born September

23, 2000, and a second daughter born in 2005. Their marriage began to fall

apart and in 2012 Davis informed Megan that he wanted a divorce. Thereafter

Megan noticed distressing changes in M.D. ’ s behavior. She became angry,

moody, and afraid. She was very reluctant to spend time with Davis. M.D. was

treated twice at a psychiatric facility for her self-harming behaviors, which

included clawing and scratching at her own skin and banging her head against

a wall. Upon being questioned by Megan in January 2013, M.D. disclosed that

she had been abused. Megan reported the allegations to law enforcement on

January 31, 2013.

Police opened an investigation and arranged an interview for M.D. at a

children ’ s advocacy center. After viewing this interview via closed circuit

television, a detective requested the family laptop and camera from Megan.

The family laptop had four different user accounts

— one for each family

member. Police discovered four deleted images of what appeared to be child

pornography dated January 13, 2010. They depicted a young female lying on a

table exposing her genitals. Three of the four photos contained embedded data

which indicated they were taken with the family camera.

Megan positively identified M.D in one of the photos and determined that

they were taken during winter in the family home because she could see a

portion of one of the family ’ s seasonal place mats in the photos, as well as the

2wallpaper border in the background. The Commonwealth ’ s digital forensic

expert could not determine when the photos were uploaded from the camera to

the laptop, how many times they were viewed, which of the four family

accounts the images existed on before being deleted, or when they were

deleted.

At trial M.D. testified regarding several instances of abuse. She stated

that Davis touched her “ private area ” one afternoon in March 2007 when she

was six years old. She also testified that in 2010, when she was nine years old,

Davis photographed her genitals and he told her that he did so because he

wanted her to see what she looked like “ down there. ” She identified herself in

the photos and also identified the walls and seasonal place mats on the table.

She stated that Davis uploaded the photos to the family laptop and that they

looked at them together. M.D. also testified that Davis raped her when she was

home sick from school sometime in December 2012 when she was twelve years

old. She stated that Davis overpowered her, and she was in excruciating pain

during the rape. She was evaluated by the Children ’ s Advocacy Center in

Lexington and her physical exam was normal.

Davis was tried for four counts of use of a minor in a sexual performance

and one count each of first-degree sexual abuse, incest, and second-degree

rape. He testified at trial and denied all of M.D. ’ s allegations. The jury

convicted him of four counts of use of a minor in a sexual performance and

acquitted him on all other charges. The jury recommended a sentence of

twenty years for each count to run consecutively for an eighty-year sentence.

3The trial court sentenced Davis to the statutory maximum of seventy years in

prison and this appeal followed.

ANALYSIS

Davis appeals as a matter of right, raising the following issues: (1) the

trial court erred by denying the motion to sever the four counts of use of a

minor in a sexual performance from the rest of the charges; (2) the trial court

erred by admitting the four nude photos of M.D. into evidence; (3) the trial

court erred by denying Davis ’ s request for a lesser included offense instruction;

(4) the trial court erred in denying the motion for a mistrial due to a discovery

violation, and (5) the jury selection procedures were improper.

I. The trial court properly denied the motion to sever.

Prior to trial, Davis filed a motion to sever the counts of use of a minor in

a sexual performance from the sexual abuse, incest, and rape charges, arguing

that the use of a minor in a sexual performance charges were too different in

character from the remaining charges. After a hearing, the trial court denied

the motion. Davis renewed his motion to sever at trial, but again it was denied.

He argues that this was error.

An appellate court reviews a trial court ’ s denial of a motion to sever for

an abuse of discretion. A trial court abuses its discretion if its decision was

“ arbitrary, unreasonable, unfair, or unsupported by sound legal principles. ”

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

because nothing in the photos indicates that the young girl depicted therein

had been physically abused or touched inappropriately, and the remaining

4counts in the indictment all involved allegations that Davis sexually assaulted

M.D. in varying ways, severance was required.

Kentucky Rule of Criminal Procedure (RCr) 6.18 permits two or more

offenses to be charged in the same indictment provided that “ the offenses are of

the same or similar character or are based on the same acts or transactions

connected together or constituting parts of a common scheme or plan. ”

Additionally, RCr 8.31 mandates when severance is necessary, and states that

“ [i]f it appears that a defendant or the Commonwealth is or will be prejudiced

by a joinder of offenses

. . . , the court shall order separate trials of counts

. . . ,

or provide whatever other relief justice requires. ” Prior to trial a defendant

seeking severance must show that joinder would be unduly prejudicial. Cohron

v. Commonwealth, 306 S.W.3d 489, 493 (Ky. 2010). “ [A] defendant must prove

that joinder would be so prejudicial as to be unfair or unnecessarily or

unreasonably hurtful. ” Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky.

2006). “ If evidence from one of the offenses joined in the indictment would be

admissible in a separate trial of the other offenses, the joinder of offenses

generally will not be prejudicial. ” Cohron, 306 S.W.3d at 493.

Kentucky Rule of Evidence (KRE) 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of

motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident[.)

5“ [E ] vidence of similar acts perpetrated against the same victim are almost

always admissible.... ” Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky.

2008). “ [E ]

vidence of other assaults perpetrated by a defendant against

the same victim is generally admissible to prove intent and motive with respect

to the subsequent assault. ” Ratliff v. Commonwealth, 194 S.W.3d at 264.

Similarly, because evidence of the sexual abuse, rape, and use of a minor in a

sexual performance would be mutually admissible in separate trials, we cannot

say that joinder was prejudicial.

As Davis states, sexual abuse, incest and rape require some type of

contact or touching and using a minor in a sexual performance does not

contemplate physical contact. However, the offenses are appropriately joined

under RCr 6.18, “ constituting parts of a common scheme or plan ” to commit

sexual crimes against his daughter. Because evidence of the use of a minor in

a sexual performance would have been admissible in a separate trial for sexual

abuse and rape, and vice versa, the joinder of offenses was not prejudicial and

therefore the trial court did not abuse its discretion.

Finally, Davis emphasizes that his seventy-year sentence, despite being

acquitted of the rape, sexual abuse and incest charges, highlights the prejudice

that resulted from joinder of all offenses. However, when ruling on a motion to

sever, the trial court is tasked with assessing potential prejudice from joining

offenses prior to trial. Cohron, 306 S.W.3d at 493. Although Davis received a

lengthy sentence despite being acquitted on some charges, we cannot say that

6the harshness of the penalty means the trial court abused its discretion in

ruling on Davis ’ s pre-trial motion to sever.

II. The admission of the photos was not an abuse of discretion.

Davis argues that the trial court erred in admitting the four photos of

M.D. into evidence. He argues that while the photos were relevant, they were

unduly prejudicial. We review evidentiary issues for an abuse of discretion.

Clark v. Commonwealth, 567 S.W.3d 565, 576 (Ky. 2019), requires this Court

to consider whether the trial court ’ s decision was “ arbitrary, unreasonable,

unfair, or unsupported by sound legal principles. ”

Davis was charged with four counts of use of a minor in a sexual

performance. Kentucky Revised Statute (KRS) 531.310(1) states that “ [a]

person is guilty of the use of a minor in a sexual performance if he employs,

consents to, authorizes or induces a minor to engage in a sexual performance. ”

KRS 531.300(6) defines “ sexual performance ” as “ any performance or part

thereof which includes sexual conduct by a minor. ” “ Performance ” is defined

as “ any play, motion picture, photograph or dance. Performance also means

any other visual representation exhibited before an audience. ” KRS

531.300(5).

Davis continually objected to the admissibility of the photos. Prior to

trial, the trial court conducted an in camera review of the four photos to

determine how the photos would be used during trial. In a written order, the

trial court described each photo and determined that each was admissible.

The trial court reasoned that the photos were probative because each

7demonstrated that (1) an offense was committed (2) during a particular time

(when M.D. was a minor), both of which constitute necessary proof of the

crimes.

Davis criticizes the reliability of the photos, stating that because the

photos only show the lower half of the body it could be any young female in the

photos. Davis highlights that M.D. was biased toward him based on her

testimony that she was angry at him about the divorce. He also points out that

only seventeen-year-old M.D. identified the then nine-year-old M.D. in the

photos. However, the record indicates that Megan, M.D. ’ s mother, identified

M.D. as the girl in one of the photos. 2 Further, “ [assessing the credibility of a

witness and the weight given to her testimony rests within the unique province

of the jury

. . . . ” Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017)

(citations omitted). The jury was charged with deciding whether M.D. ’ s

identification was credible and how much weight to afford her testimony.

All photos are subject to a balancing test pursuant to KRE 403. Relevant

evidence “ may be excluded if its probative value is substantially outweighed by

the danger of undue prejudice

. . . . ” KRE 403. Probative photos are

admissible “ unless they are so inflammatory that their probative value is

substantially outweighed by their prejudicial effect. ” Adkins v. Commonwealth,

96 S.W.3d 779, 794 (Ky. 2003). There is no doubt, and Davis admits, that the

photos are relevant to the crimes committed. Likewise, the probative value of

2 As noted, Megan also identified the seasonal place mats on the table and the

wallpaper border as establishing that the photos were taken in the family home.

8the photos cannot be denied. “ The ‘ probative value ’ or ‘ probative worth ’ of

evidence is a measure of how much the evidence tends to make the fact it is

introduced to prove more or less probable. ” Hall v. Commonwealth, 468 S.W.3d

814, 823 (Ky. 2015). Davis highlighted M.D. ’ s potential lack of credibility,

making the photos essential to proving the crimes. A judge must consider the

photos “ within the full evidentiary context of the case, giving due regard to

other evidence admitted

... to ascertain each item ’ s

. . . probative worth for

purposes of weighing that value against the risk of prejudice posed by the

evidence. ” Id. at 824.

Here, the photos constitute physical evidence of the crime itself. When

paired with M.D. ’ s testimony, the photos establish that Davis used M.D. in a

sexual performance and violated KRS 531.310. Obviously, the photos were

prejudicial, but this prejudice did not outweigh their probative value. Because

the photos were relevant and probative, they were properly admitted into

evidence.

As for the admission of all four photos, each photo was necessary to

prove each of the four counts charged in the indictment. In Williams v.

Commonwealth, 178 S.W.3d 491, 493 (Ky. 2005), the appellant was convicted

of four counts of use of a minor in a sexual performance for photos he took of

his daughter. He argued that the photographs should have been consolidated

into one count. Id. at 494. The Court determined that the singular form of

“ photograph ” in the definition of performance, read in conjunction with “ any, ”

indicated that the legislature intended prosecution for each differing

9photograph. Id. at 495. “ Accordingly, a person who generates differing and

multiple prohibited photographs or causes a child to engage in the creation of

such photographs commits multiple offenses of KRS 531.310, even though

each such differing photograph involves the same subject captured in a narrow

timeframe. ” Id.

While the photos are not in the record transmitted to this Court, the trial

court provided descriptions of each photo. 3 The photos are not substantially

different, but each photo depicts elements that corroborate the identification of

the female and where the photos were taken. For example, the first description

states that the photo displays a female in a blue vest, which M.D. used to

identify herself because she once owned a blue vest. The description of the

second photo references the blue vest, in addition to a green and white striped

shirt

— an element not present in the first photo. Also, the descriptions of the

third and fourth photos indicate the female is lying on a holiday place mat and

the place mat is not visible in the other photos. The holiday place mat is

important because it further establishes that the photos were taken in the

family home. Therefore, the admission of each photo was necessary to prove

the elements of each individual count. Further, the place mats and other

background items in the photos corroborated M.D. ’ s allegations against Davis.

3 The record indicates that after each photo was introduced into evidence by the

Commonwealth it was passed to the jury for discreet viewing.

10The photos prove the elements necessary for each count of the use of a

minor in a sexual performance. Therefore, the photos were properly admitted,

and the trial court did not abuse its discretion.

III. No lesser included offense instruction was required.

Davis made an oral motion requesting an instruction on the lesser

included offense of possession or viewing of matter portraying a sexual

performance by a minor. KRS 531.335. He argued that the evidence justified

an instruction on the lesser included offense. The final jury instructions did

not include Davis ’ s requested instruction, and he argues that this was error.

When a trial court declines to give an instruction on a specific claim, the

decision is reviewed for an abuse of discretion. Sargent v. Schaffer, 467 S.W.3d

198, 204 (Ky. 2015). On appellate review, we must determine whether the trial

court ’ s decision was “ arbitrary, unreasonable, unfair, or unsupported by sound

legal principles. ” English, 993 S.W.2d at 945. Trial courts must give a lesser

included offense instruction “ if, but only if, considering the totality of the

evidence, the jury might have a reasonable doubt as to the defendant ’ s guilt of

the greater offense, yet believe beyond a reasonable doubt that he is guilty of a

lesser offense. ” Jenkins v. Commonwealth, 496 S.W.3d 435, 449 (Ky. 2016).

To determine this issue, we must delineate between the two crimes.

“ A person is guilty of use of a minor in a sexual performance if he

employs, consents to, authorizes or induces a minor to engage in a sexual

performance. ” KRS 531.310(1). “ Sexual performance ” means “ any

performance or part thereof which includes sexual conduct by a minor. ” KRS

11531.300(6). Photographs constitute “ performance ” under the statute, and

sexual conduct includes “ [t]he exposure, in an obscene manner, of the

unclothed

. . . female genitals

... or the female breast

. . . . ” KRS

531.300(4)(d).

Davis argues that KRS 531.335 is a lesser included offense of the use of

a minor in a sexual performance. KRS 531.335 provides:

1) A person is guilty of possession or viewing of matter portraying

a sexual performance by a minor when, having knowledge of its

content, character, and that the sexual performance is by a

minor, he or she

a) Knowingly has in his or her possession or control any

matter which visually depicts an actual sexual

performance by a minor person;

Davis maintains that because the photos showed a young female from

below the chest, it was impossible to identify her. He argues that only M.D.

was able to identify the pictured female, and that there were issues with M.D. ’ s

credibility because the jury rejected her testimony that Davis sexually

assaulted her. He further highlights that (1) M.D. testified that she was angry

at Davis because of the divorce and would do anything for her mother; (2) the

computer and camera were both in Megan ’ s possession when the allegations of

sexual misconduct were made; (3) Megan had a financial motive to implicate

Davis because of her desire to obtain funds from his retirement account in the

divorce; and (4) M.D. was the only witness that identified the female in the

photos and she possessed an obvious bias toward Davis. He states that this

evidence demonstrates that a jury could reasonably doubt whether he used

12M.D. in a sexual performance in violation of KRS 531.310, and instead believe

that he merely had the photos in his possession.

The Court of Appeals considered whether possession of matter portraying

a sexual performance by a minor is a lesser included offense of using a minor

in a sexual performance in Westerfield v. Commonwealth, No. 20060-CA000592-MR, 2007 WL 1196462 (Ky. App. Apr. 6, 2007). In Westerfield, the

defendant was charged and convicted of both crimes, and he argued on appeal

that the convictions violated double jeopardy. The Court of Appeals held that

KRS 531.310 requires [the defendant]: (1) to employ,

consent, authorize or induce; (2) a minor; (3) to engage in a

sexual performance. The elements of KRS 531.335 are to: (1)

knowingly; (2) have in possession or control; (3) any matter

visually depicting an actual sexual performance by a minor;

and (4) with knowledge of the matter's content, character,

and that the sexual performance is by a minor. Westerfield

concedes that KRS 531.310 requires additional proof of

consent, authorization, or inducement for the minor to

engage in a sexual performance. KRS 531.335 requires

possession of the material depicting the sexual performance

which KRS 531.310 does not. As a result, KRS 531.335 is

not a lesser included offense of KRS 531.310. The offense of

use of a minor in a sexual performance was completed when

Westerfield induced A.M.R. to remove her shirt and

photographed her. His decision to retain the photograph in

his possession was a distinct step that constituted a

separate criminal offense under 531.335.

Id. at *3.

These crimes require proof of different facts and constitute two separate

crimes. “ An individual can induce a child to engage in a sexual performance

without creating any lasting media or possessing any record portraying the

event, and an individual may knowingly possess a depiction of a minor

engaging in a sexual performance without playing any role in the creation of

13the media. ” Meade v. Commonwealth, 2014 WL 2809815, *4 (Ky. June 19,

2014). Therefore, possession of matter portraying a sexual performance by a

minor is not a lesser included offense to the use of a minor in a sexual

performance.

Applying the above reasoning to Davis ’ s case, possession of the photos is

a separate crime from using a minor in a sexual performance. The offense of

using a minor in a sexual performance was completed when Davis induced

M.D. to expose herself and photographed her. Uploading the photos to the

family laptop indicates possession, constituting an offense under KRS

531.335. 4 He also committed the offense when he viewed the photos with M.D.

In actuality, Davis could have been charged with both crimes. “ An instruction

on a separate, uncharged, but lesser ’ crime

— in other words, an alternative

theory of the crime

— is required only when a guilty verdict as to the alternative

crime would amount to a defense to the charged crime, i.e., when being guilty

of both crimes is mutually exclusive. ” Hudson v. Commonwealth, 202 S.W.3d

17, 22 (Ky. 2006).

In this case, taking the photos was not required for the crime of using a

minor in a sexual performance based on the statutory definitions provided in

KRS 531.300. Merely possessing the photos, and thus being guilty of violating

KRS 531.335, does not constitute a defense for using a minor in a sexual

4 The digital forensic investigator determined that the photos in question were

uploaded to and later deleted from the family laptop but could not state when they

were deleted. M.D. also testified that she and Davis looked at the photos on the laptop

together.

14performance. In sum, KRS 531.335 is not a lesser included offense of using a

minor in a sexual performance and the trial court did not err in denying Davis ’ s

request for an instruction on possession.

IV. The trial court did not err in denying Davis ’ s motion for a

directed verdict.

Davis also argues that the trial court erred in failing to grant his motion

for directed verdict because the evidence presented at trial was insufficient to

support a guilty verdict for use of a minor in a sexual performance. A trial

court ’ s ruling on a motion for directed verdict is reviewed under the following

standard:

When presented with a motion for a directed verdict, a

court must consider the evidence as a whole, presume the

Commonwealth's proof is true, draw all reasonable

inferences in favor of the Commonwealth, and leave

questions of weight and credibility to the jury. The trial

court is authorized to grant a directed verdict if the

Commonwealth has produced no more than a mere scintilla

of evidence; if the evidence is more than a scintilla and it

would be reasonable for the jury to return a verdict of guilty

based on it, then the motion should be denied. On appellate

review, the standard is slightly more deferential; the trial

court should be reversed only if it would be clearly

unreasonable for a jury to find guilt.

Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citations omitted).

Davis points to the following evidence to suggest that the jury could have

a reasonable doubt as to his guilt: (1) the photos show a female from below the

chest, making it impossible to identify her; (2) M.D. was the only witness to

positively identify the female; 5 (3) M.D. lacked credibility because the jury

5 As noted, Megan, M.D. ’ s mother, identified the girl depicted in one of the

photos as M.D.

15rejected her testimony that Davis sexually assaulted her, evidenced by an

acquittal of all other charges; (4) the camera and laptop were in Megan ’ s

possession when the allegations arose; (5) Megan had a financial motive to

implicate Davis in criminal activity; and (6) M.D. expressed her anger toward

Davis and loyalty to her mother. However, the trial court must presume that

all of the Commonwealth ’ s evidence is true. On appellate review, this Court

can only reverse the trial court if it would be clearly unreasonable for a jury to

find guilt. Based on the evidence presented, we cannot say it would have been

unreasonable for a jury to find Davis guilty of the four counts of use of a minor

in a sexual performance.

Davis claims that, even when viewed in a light most favorable to the

Commonwealth, the evidence presented was insufficient to support his

convictions for use of a minor in a sexual performance. We disagree. There

was sufficient evidence such that a reasonable juror could find guilt. M.D.

testified and identified herself in the four photos. As this Court stated in King

v. Commonwealth, 472 S.W.3d 523, 526 (Ky. 2015), “ (t]he testimony of a single

witness is enough to support a conviction. Our courts have long held that a

jury is free to believe the testimony of one witness over the testimony of

others. ” (Citations omitted).

Thus, M.D. ’ s sworn testimony that Davis staged the photos of her

engaged in a sexual performance was sufficient. M.D. ’ s testimony was further

corroborated by the photos themselves, Megan ’ s testimony that Davis was

home alone with M.D. when the photos were taken, and the digital forensic

16evidence suggesting that the photos were uploaded to and subsequently deleted

from the family laptop. Given the evidence presented, the trial court did not err

in denying the motion for directed verdict.

V. The trial court properly denied the motion for a mistrial because

any discovery violation was properly cured by an admonition to

the jury.

Davis argues that the trial court erred in failing to grant a mistrial based

on the introduction of previously undisclosed evidence. At trial Megan testified

that she used the computer for work-related purposes and claimed that the

only time the computer left her possession was when she let Davis borrow it in

April 2012 so that he could erase files prior to Megan receiving the computer as

part of their divorce. Davis objected to this testimony because evidence of

allegations that he had deleted files on the laptop during this time frame had

not been previously disclosed by the Commonwealth. Davis asserts that had

he known about this evidence, he would have had his computer experts

examine the computer for evidence of file deletions that may have occurred

during April 2012.

The Commonwealth acknowledged that it did not disclose this

information to the defense because it learned of this time frame within the “ last

month or two ” during trial preparation. Davis argued that this evidence

potentially would have been exculpatory in nature or may have led to discovery

of exculpatory or impeachment evidence. Accordingly, Davis moved for a

mistrial because the withholding of the evidence impacted his ability to have a

17fair trial. The trial court denied the motion, noted Davis ’ s objection and

permitted Megan ’ s testimony to continue.

At another bench conference nearly two hours after Megan ’ s testimony

Davis restated his motion for mistrial, moved for an admonition and

acknowledged that he should have requested an admonition previously. The

parties agreed to language for the admonition, and further agreed that the

Commonwealth would instruct Megan not to mention the April 2012 file

deletions any further. The jury was admonished as follows:

There was testimony from the witness this morning that around

the time of the divorce that the defendant asked to get the laptop

so he could delete some files and give her more room. You are not

to consider that testimony in any manner in your deliberations.

It ’ s though it never happened.

Davis argues that he was deprived of a fair trial because the

Commonwealth failed to reveal that Megan planned to provide the April 2012

time period in her testimony. Whether this issue is properly preserved is

questionable. The Commonwealth asserts that Davis never filed a written

request pursuant to RCr 7.24 requiring the Commonwealth to disclose certain

items. However, even if the issue was not properly preserved, any error was

cured by the admonition.

“ A jury is presumed to follow an admonition to disregard evidence and

the admonition thus cures any error. ” Johnson v. Commonwealth, 105 S.W.3d

430, 441 (Ky. 2003). The trial court admonished the jury according to

language agreed upon by both parties, directing the jury to disregard the

18testimony about removing files from the laptop. There is nothing to suggest

that the jury was unable to follow the trial court ’ s admonition.

Even without the admonition, it is doubtful that we would find reversible

error. The charges in this case stem from four deleted photographs recovered

from the family computer. Any information about removing or deleting files

from the computer was relevant from the outset of this case. The

Commonwealth ’ s expert, an Assistant Chief of the Georgetown Police

Department trained in computer forensics, stated that no one knew when the

photos were deleted. The relevance of the laptop and photo deletion, paired

with Davis being a party to the exchange that took place in April 2012 with

Megan regarding possession of the laptop, makes it difficult to believe that

Megan ’ s testimony came as a total surprise. The laptop contained the primary

evidence of illegal activity and has been central to the allegations from the

start. Both parties had access to finding out when the laptop was in whose

hands and were aware of its relevance.

Davis also highlights that he was not permitted to cross-examine Megan

with respect to her testimony regarding April 2012 because the trial court

admonished the jury to ignore that portion of her testimony. However, Davis

specifically requested this admonition. Further, it was not until the

Commonwealth concluded its direct examination of Megan, nearly two hours

after the April 2012 statement, that Davis requested the admonition.

“ Generally, a party is estopped from asserting an invited error on appeal. ”

Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011). Invited errors

19“ amount to a waiver, i.e., invitations that reflect the party ’ s knowing

relinquishment of a right, are not subject to appellate review. ” Id. at 38. Any

lack of opportunity to question Megan regarding the time frame was initiated

by Davis himself, and he cannot now complain that the admonition deprived

him of the opportunity to cross-examine Megan regarding the statement.

Davis also argues that the trial court erred in denying his motion for a

mistrial. As this Court stated in Gray v. Commonwealth, 480 S.W.3d 253, 273

(Ky. 2016),

The decision to declare a mistrial is properly within the

sound discretion of the trial court. A mistrial is “ an extreme

remedy and should be resorted to only when there appears in the

record a manifest necessity for such an action or an urgent or real

necessity. ” A “ manifest necessity ” can be understood as to be an

urgent need for a new trial in consideration of the totality of the

circumstances

.

The trial court did not abuse its discretion in denying the motion for a mistrial

because any error was cured by the admonition. During his initial objection to

Megan ’ s testimony, Davis immediately requested a mistrial without considering

other options, such as a continuance to consult with co-counsel or his own

expert, or an admonition. There were other remedies available instead of

resorting to an extreme remedy reserved for cases of manifest necessity. In

considering the totality of the circumstances and evidence presented, a mistrial

was not warranted.

VL The trial court ’ s jury selection procedures were proper.

Davis further argues that the trial court ’ s jury selection procedures were

improper. The trial court summoned one hundred sixteen jurors and only

20seventy-eight appeared. Davis requested a delay of the trial to allow the sheriff

to locate some of the missing jurors. The sheriff located eight additional jurors,

placing eighty-six potential jurors in the jury pool. Davis requested a

continuance to permit the sheriff to locate even more jurors, but the trial court

denied the motion and began voir dire.

After informing the jury of the nature of the charges, the trial court

excused seven potential jurors for cause. 6 In a bench conference, Juror A

reported that something happened to her in January 1969, but that she put it

behind her years ago. She insinuated that she was a victim of some type of

sexual crime nearly fifty years ago. The trial court recognized that, based on

Juror A ’ s demeanor, the events were troubling to her. The trial court

questioned whether she would be able to decide the issues solely on this case

and not based on her past, and she recognized that the case is about someone

else ’ s life, not what happened to her. Upon further questioning by the parties,

Juror A stated repeatedly and unequivocally that she could separate her

personal experience from the case. She said that she could not punish

someone else for what happened to her, and that she could decide guilt or

innocence.

Davis moved to strike Juror A arguing that she would be unable to

render a fair verdict based on her past experiences. The trial court determined

that she could be impartial but noted that it was a close question. The trial

6 These jurors reported that they could not be impartial because they or close

relatives had been victims of similar crimes, or they expressed generalized but extreme

discomfort with the subject matter.

21court was convinced by her repetitive assertions that “ this is not about me, this

is about this particular case ” that Juror A would decide the case based on what

happened in the courtroom, not on her personal experiences. Davis renewed

his objection.

Nineteen jurors were stricken for cause and thirty-two advanced to the

peremptory challenge phase of jury selection. Davis exercised a peremptory

strike on Juror A. Once all strikes were utilized, eighteen jurors remained.

Davis now argues that because he had to use a peremptory strike on Juror A,

who should have been stricken for cause, that he was prejudiced by being

unable to identify an alternate juror that he would have stricken. 7

RCr 9.36(1) provides that the trial court shall excuse a juror for cause

when “ there is reasonable ground to believe that the prospective juror cannot

render a fair and impartial verdict. ” A trial court ’ s decision “ to exclude a juror

for cause is based on the totality of the circumstances, not on a response to

any one question. ” Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008).

A determination of whether to exclude a juror for cause is reviewed for an

abuse of discretion. Little v. Commonwealth, 422 S.W.3d 238, 241 (Ky, 2013).

The test for abuse of discretion is whether the trial court ’ s decision was

“ arbitrary, unreasonable, unfair, or unsupported by sound legal principles. ”

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

7 It is unclear why Davis could not have identified who he would have stricken

because at the time he exercised peremptory challenges he did not know whether the

Commonwealth would use some or all of their challenges or who they would challenge.

Several jurors remained at that juncture who Davis could have identified.

22In Little, this Court summarized the appropriate analysis where a

defendant has moved to strike a juror because that juror had been the victim of

a similar crime:

“ [T]his Court has consistently held that the mere fact that a

juror or her family member has been the victim of a crime

similar to the one charged against the defendant does not, in

and of itself, justify that juror's excusal. Brown v.

Commonwealth, 313 S.W.3d 577, 598 (Ky.2010) (juror victim of

burglary); Richardson v. Commonwealth, 161 S.W.3d 327, 330

(Ky.2005) (juror victim of sexual abuse); Woodall v.

Commonwealth, 63 S.W.3d 104, 118 (Ky.2001) (juror sister of

rape victim); Hodge v. Commonwealth, 17 S.W.3d 824

(Ky.2000) (citing several earlier cases holding similarly). In

those cases, additional evidence of bias is required, with

“ [ojbvious factors bearing on the likelihood of bias [being] the

similarity between the crimes, the length of time since the

prospective juror's experience, and the degree of trauma the

prospective juror suffered. ” Brown, 313 S.W.3d at 598.

Ultimately, “ [i]t is the totality of all the circumstances, however,

and the prospective juror ’ s responses that must inform the trial

court ’ s ruling. ” Id.

422 S.W.3d at 242.

Juror A repeatedly stated that she could compartmentalize her personal

experience and decide Davis ’ s case solely upon the evidence presented. Early

in the bench conference the trial court expressed its concerns over whether she

was suitable for the jury, worrying that it may be difficult for Juror A to be

honest. Juror A assured the trial court that she could separate what happened

to her and only convict Davis if warranted by the evidence. In its lengthy

findings after Davis moved to strike Juror A, the trial court assessed her

answers to all questions, attitude and demeanor. Juror A never opined that

she believed Davis was guilty, and when asked whether she could set aside her

23experience and decide the case based solely upon the evidence presented, she

responded affirmatively. The totality of the circumstances indicated that she

could remain fair and impartial. Accordingly, the trial court did not abuse its

discretion in refusing to strike Juror A for cause.

Davis also argues that the absence of venire members ultimately proved

prejudicial because he was unable to identify another juror he would have

stricken if he did not peremptorily strike Juror A. He asserts that this

irregularity in jury selection proceedings substantially impacted his right to a

fair and impartial jury.

In Peterson v. Commonwealth, 160 S.W.3d 730, 731 (Ky. 2005), the

defendant moved for a continuance because twenty-one potential jurors failed

to appear. The trial court denied the motion, holding that the fifty-three

potential jurors present were sufficient. Id. On appeal, this Court held that

the defendant could not show that he was prejudiced or demonstrate that the

trial court erred in denying his motion for a continuance or dismissal. Id. at

732. “ A mere complaint that some members of the venire did not appear for

jury duty is insufficient to demonstrate the trial court erred in this matter. ” Id.

Davis has not articulated how he has been prejudiced or otherwise harmed by

being unable to designate a juror he would have stricken had there been more

prospective jurors. The fact that he cannot identify anyone who sat on the jury

who he would have peremptorily striken indicates a lack of prejudice.

Further, this Court has held that “ in order to complain on appeal that he

was denied a peremptory strike challenge by a trial judge ’ s erroneous failure to

24grant a for-cause strike, the defendant must identify on his strike sheet any

additional jurors he would have struck. ” Gabbard v. Commonwealth, 297

S.W.3d 844, 854 (Ky. 2009). Davis did not comply with this standard. Davis

was unable to identify any additional jurors he would have struck. Therefore,

he cannot argue that he was prejudiced by the jury selection procedures or

anyone that actually sat on the jury.

CONCLUSION

For the foregoing reasons, the judgment of the Scott Circuit Court is

affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Brent L. Caldwell

Caldwell Law Firm, PLLC

Bryce L. Caldwell

Gordan, Goetz, Johnson & Caldwell, PSC

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky <

Joseph A. Newberg, II

Assistant Attorney General

Office of Criminal Appeals

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