Supreme Court of Kentucky

2021-SC-0339-MR

BYRON SEYMOUR APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE MITCH PERRY, JUDGE

 NOS. 19-CR-000314 & 21-CR-000979

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER GRANTING PETITION FOR MODIFICATION

The Petition for Modification, filed by the Appellee, of the Opinion of the 

Court, rendered September 22, 2022, is GRANTED.

All sitting. All concur.

 ENTERED: August 24, 2023

 ________________________________________

 CHIEF JUSTICE
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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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, RAP 40(D), 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OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A 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: SEPTEMBER 22, 2022

MODIFIED: AUGUST 24, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0339-MR

BYRON SEYMOUR APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE MITCH PERRY, JUDGE 

NOS. 19-CR-000314 & 21-CR-000979

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A circuit court jury convicted Byron Seymour of first-degree rape and 

being a second-degree persistent felony offender. Upon recommendation of the 

jury, the trial court sentenced Seymour to 20 years in prison. Seymour now 

appeals the resulting judgment as a matter of right,1 alleging six errors. 

Finding none of Seymour’s arguments meritorious, we affirm the trial court’s 

judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

One morning, Seymour visited the home of T.J., an acquaintance of his. 

Seymour had previously visited T.J.’s home to visit Heather, T.J.’s daughter. 

1 Ky. Const. § 110(2)(b).
2

On this specific visit, T.J., Seymour, Heather, and Will, another friend of 

Heather’s, were present. At some point, Will left T.J.’s home to purchase 

drinks for the group. Heather then went into the bathroom to take a shower, 

leaving Seymour alone with T.J. 

Seymour entered one of the home’s bedrooms and allegedly used a ruse 

to convince T.J. to enter the bedroom. Once T.J. entered the room, she claims 

Seymour closed the door and drew two knives on her. Seymour threatened her 

and told her not to say anything. Seymour unsuccessfully attempted to 

sexually assault T.J. at knifepoint. He then commanded T.J. to snort drugs on 

a table in the bedroom while he viewed pornography on his cell phone. He then 

sexually assaulted T.J. at knifepoint. 

During the assault, Heather entered the bedroom and saw Seymour and 

T.J. engaged in intercourse. Heather yelled at Seymour to get off of T.J., and 

Heather and T.J. fled from the house. Once T.J. and Heather were outside, 

Seymour locked the door so they could not re-enter, and he exited the house by 

the back door.

While outside the house, T.J., who was partially naked, screamed for 

someone to call the police. An unknown neighbor or bystander called 911. 

When officers arrived on the scene, they took statements from T.J. and Heather 

and then transported T.J. to a hospital to undergo a sexual assault 

examination. Nurse Vickie Yazel, a sexual assault nurse examiner (SANE),

performed the exam and collected DNA evidence.
3

Based on the statements provided to the officers by T.J. and Heather, 

police obtained a warrant to locate Seymour using his real-time cell site 

location information (CSLI). Once located, Seymour was taken into custody 

and interviewed. Seymour denied raping T.J. or having sex with her. 

When the DNA samples collected from T.J. were examined, the DNA 

profile from the vaginal swab was consistent with a mixture of T.J.’s DNA and 

Seymour’s DNA. Seymour was charged with first-degree rape, first-degree 

wanton endangerment, and being a second-degree persistent felony offender.

At trial, a jury convicted Seymour of first-degree rape and being a 

second-degree persistent felony offender. The jury recommended a sentence of 

20 years in prison, and the trial court sentenced Seymour in accordance with 

the jury’s recommendation.

II. ANALYSIS

Seymour brings his appeal making several claims of alleged error. We 

address each alleged error in turn, providing additional facts as necessary.

A. The trial court did not err in qualifying Nurse Yazel as an expert 

witness.

On appeal, Seymour argues that the trial court erred in qualifying Nurse 

Yazel as an expert witness. But this argument is unpreserved. So we review it 

only for palpable error, meaning that we will reverse the trial court’s decision 

only if “[a] defect is so manifest, fundamental and unambiguous that it 
4

threatens the integrity of the judicial process.”2 In order to establish that a 

palpable error occurred, Seymour must show “the probability of a different 

result or error so fundamental as to threaten his entitlement to due process of 

law.”3

“[A] trial court has wide latitude in deciding how to test an expert's 

reliability and in deciding whether or when special briefing or other 

proceedings, i.e., at a Daubert hearing, is needed to investigate reliability.”4

However, a Daubert hearing is not always required, so long as the trial court 

makes the decision to qualify an expert based on an adequate record.5

In this case, Seymour concedes that he did not make a pretrial motion to 

exclude Nurse Yazel as unqualified, nor did he request a Daubert hearing to 

challenge her credentials as an expert. Further, Seymour does not identify any 

criteria that would make Nurse Yazel unqualified. Thus, we uphold the trial 

court’s qualification of Nurse Yazel as an expert so long as that decision was 

based on an adequate record.

At trial, Nurse Yazel testified about her qualifications: she earned her 

nursing degree in 2009, she completed SANE training in 2013, and she had 

eight years of experience as a SANE at University of Louisville Hospital, where 

2 Huddleston v. Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018) (quoting Martin 

v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006)).

3 Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007) (internal citation 

omitted).

4 Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky. 2004) (citing Kumho Tire 

Co. v. Carmichael, 526 U.S. 137, 152 (1999)). 

5 Luna v. Commonwealth, 460 S.W.3d 851, 865 (Ky. 2015). 
5

she had seen more than 1,000 patients and was the manager of the SANE 

program. We find Nurse Yazel’s provision of her extensive qualifications to the 

trial court to be sufficient evidence on which the trial court could premise its 

decision to qualify her as an expert. Thus, we find the trial court’s decision to 

qualify Nurse Yazel as an expert was not in error, palpable or otherwise.

B. The trial court did not err in permitting Nurse Yazel to testify that, 

in her opinion, T.J.’s injuries were caused by forcible intercourse.

Next, Seymour alleges that the trial court’s admission of Nurse Yazel’s 

testimony that T.J.’s injuries were caused by forcible penetration was improper 

because it was opinion testimony regarding the ultimate issue in the case. 

Seymour concedes that this issue is unpreserved, so we review it only for 

palpable error. 

KRE6 702 provides that “[i]f scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to 

determine a fact issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto[,]” so long as the 

testimony is based on sufficient facts or data, is the product of reliable 

principles and methods, and those principles and methods have been reliably 

applied to the facts of the case. 

A witness presents an opinion on the “ultimate issue” in a criminal case 

when he or she opines as to the defendant’s guilt with regard to the charged 

6 Kentucky Rule of Evidence.
6

offenses.7 Historically, such testimony as to the “ultimate issue” in a case has 

been prohibited.8 But in Stringer v. Commonwealth, this Court clarified that 

admissibility of statements regarding the “ultimate issue” in a case should be 

analyzed based on the testimony’s ability to aid the factfinder “in the solution 

of the ultimate problem.”9 The Court in Stringer outlined a four-part test for 

trial courts to consider in determining the admissibility of expert opinion 

testimony: 1) whether “the witness is qualified to render an opinion on the 

subject matter,” 2) whether the subject matter of the testimony satisfies 

Daubert, 3) whether “the subject matter satisfies the test of relevancy set forth 

in KRE 401, subject to the balancing of probativeness against prejudice 

required by KRE 403,” and 4) whether “the opinion will assist the trier of fact 

per KRE 702.”

10

Regarding the first element of the Stringer analysis, we concluded above 

in Part A that the trial court based its decision to qualify Nurse Yazel as an 

expert witness upon an adequate record detailing her experience and 

qualifications. As such, we find element one met.

Element two of the Stringer analysis concerns the sufficiency of an 

expert’s testimony under Daubert. Because Seymour made no request for a 

Daubert hearing regarding Nurse Yazel’s testimony or methodology, nor does he 

7 Stringer v. Commonwealth, 956 S.W.2d 883, 889 (Ky. 1997).

8 See Commonwealth, Dep’t of Highways v. Widner, 388 S.W.2d 583, 586–87 

(Ky. 1965). 

9 956 S.W.2d at 891–92.

10 Id. 
7

provide any argument in his brief alleging Nurse Yazel’s testimony to be 

deficient under the Daubert standard, we find the second element of the 

Stringer analysis to be met.

The third element of the Stringer analysis requires the trial court to 

consider whether the evidence in question meets the threshold relevancy 

requirement outlined in KRE 401: “‘Relevant evidence’ means evidence having 

any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.” This standard is “powerfully inclusionary and is met 

upon a showing of minimal probativeness.”11

In this case, the jury was tasked with weighing the contravening 

testimonies of T.J. and Seymour and determining whether Seymour raped T.J. 

The fact that T.J.’s examination after the incident revealed injuries consistent 

with those a person would sustain from forcible intercourse is highly probative. 

The primary difference between T.J.’s and Seymour’s testimonies was whether 

T.J. consented to the sexual encounter between them. Evidence that T.J. 

sustained injuries in the encounter of the nature usually caused by forcible 

intercourse is certainly helpful to the jury in determining which testimony to 

believe.

11 Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015).
8

Even applying the KRE 403 balancing test12 and weighing the evidence’s 

probativeness against its prejudicial nature, we find that Nurse Yazel’s 

conclusions drawn from her examination of T.J. are highly probative and not 

unfairly prejudicial to Seymour—her observations of T.J.’s injuries and 

opinions about the cause of those injuries simply supported T.J.’s narrative of 

the incident. 

Lastly, the Stringer analysis requires the Court to consider whether the 

expert opinion testimony will assist the jury in determining a fact at issue in 

the cause. As described above, Nurse Yazel’s opinion about the cause of T.J.’s 

injuries supports the narrative of the incident as described by T.J.—that she 

did not consent to the sexual encounter with Seymour. As such, Nurse Yazel’s 

testimony was certainly useful to the jury in determining the factual question 

of the consensual nature of the interaction between Seymour and T.J.

In conclusion, we first clarify that Nurse Yazel’s testimony did not 

necessarily go to the ultimate issue in this case—whether Seymour raped T.J. 

Instead, Nurse Yazel’s testimony merely described T.J.’s injuries and opined 

about a possible cause of those injuries. But even when considered under the 

framework provided in Stringer, we find that Nurse Yazel’s statement that T.J.’s 

injuries were caused by forcible intercourse was admissible. Any issue 

Seymour takes with the contents of Nurse Yazel’s testimony, like other possible 

12 “Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of undue prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, or needless presentation of 

cumulative evidence.”
9

causes of T.J.’s injuries, could have been addressed in cross-examination. As 

such, the trial court did not err in allowing the jury to hear such testimony.

C. The trial court did not err in allowing Nurse Yazel to testify about 

the statements made to her by T.J.

When T.J. was undergoing a sexual assault examination by Nurse Yazel, 

she recounted to Yazel that her assailant had a knife, told her he would stab 

her, raped her, and tried to force her to use drugs. Before Nurse Yazel testified 

at trial, Seymour made a general objection to Yazel’s testimony as inadmissible 

hearsay. The trial court ruled that the statements were admissible, and, as a 

compromise, the Commonwealth suggested it be permitted to lead the witness. 

All parties agreed with this suggestion as Nurse Yazel took the stand. 

The Commonwealth contends that, in so agreeing, Seymour waived his 

objection to Nurse Yazel’s testimony as inadmissible hearsay, and thus the 

issue is not subject to appellate review. But Seymour contends that his 

objection to Nurse Yazel’s testimony and the trial court’s ruling of admissibility 

were separate and distinct from the Commonwealth’s suggestion that it be 

permitted to lead Nurse Yazel’s testimony. So he argues that his objection 

regarding admissibility is preserved even though he acquiesced to the 

Commonwealth’s leading Nurse Yazel’s testimony.

The relevant exchange among the parties and the trial court went as 

follows:

Defense Counsel: I’ll admit, she got a few sentences in, but I don’t see 

how this isn’t hearsay. I don’t see how this isn’t an out-of-court 

statement used to prove what [T.J.] is saying happened.
10

Commonwealth: Your Honor, SANE nurses regularly get a medical 

history from the victim. She stated it prior to this question. She needs a 

history in order to treat and collect evidence. There is a portion of the 

statement, if [Defense Counsel] has an objection to the whole thing, there 

is a portion of the statement that is directly made for the purpose of 

medical treatment, which is an exception to the hearsay rule. 

Trial Court: It is, and I’ll allow this to pass. I don’t know of any new case 

law that would say you couldn’t do this. 

Commonwealth: I’m sorry, I didn’t hear that last part.

Trial Court: I’ve allowed this to pass. I don’t know of any new case law 

that would say this is inappropriate. 

Commonwealth: I don’t either.

Trial Court: It’s the medical history of why she is there. This is pretty 

descriptive, are you reading along with her? 

Commonwealth: I am.

Trial Court: I mean, how long is it?

Commonwealth: It’s relatively long. There is quite a lengthy paragraph.

Trial Court: My fear would be it gets turned into, effectively, a second 

statement of the prosecuting witness. So is there a way to shorten or 

summarize it?

Commonwealth: Absolutely, and if the court will allow me to lead her to 

whereTrial Court: Yeah, do that. 

Commonwealth: We’ll do that. 

An error is deemed waived when the failure to object is reflective of the 

party’s “knowing relinquishment” of the right to object.13 We cannot consider

Defense Counsel’s actions a “knowing relinquishment” of the right to object in 

13 Tackett v. Commonwealth, 445 S.W.3d 20, 28 (Ky. 2014).
11

this case. First, Defense Counsel objected to the hearsay in Nurse Yazel’s 

testimony. He made an objection and the trial court overruled the objection. 

Next, Defense Counsel’s approval of the Commonwealth’s leading Nurse Yazel’s 

testimony was neither sought nor given. In no way did Defense Counsel waive 

or invite the alleged error in this case. Rather, under RCr14 9.22, “when an 

appropriate objection is made to a particular line of inquiry, it is sufficient to 

preserve the issue for review as to that line of inquiry upon the grounds of the 

objection previously made.”

15 As such, we conclude that Seymour’s objection 

to the hearsay in Nurse Yazel’s testimony was properly preserved for our 

review.

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

review for abuse of discretion.16 We will conclude a trial court abused its 

discretion only if we find its decision to be “arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.”17

At trial, the Commonwealth argued that the hearsay portions of Nurse 

Yazel’s testimony were admissible under the KRE 803(4) exception to the 

hearsay rule for statements made for the purpose of medical treatment or 

diagnosis. And this exception provided the grounds on which the trial court 

14 Kentucky Rule of Criminal Procedure.

15 Rice v. Commonwealth, No. 2004-SC-1076-MR, 2006 WL 436123 at *8 (Ky.

Feb. 23, 2006) (citing Osborne v. Commonwealth, 867 S.W.2d 484, 491–92 (Ky. App. 

1993)).

16 Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).

17 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
12

overruled Seymour’s objection. But the Commonwealth abandons this 

argument on appeal and instead presents new grounds on which the hearsay 

portions of Nurse Yazel’s testimony were admissible. The Commonwealth now 

claims that the hearsay portions of Nurse Yazel’s testimony were admissible as 

prior consistent statements made by T.J. While the only preserved argument is 

that Nurse Yazel’s testimony was admissible as a statement made for the 

purpose of medical treatment or diagnosis, this Court is not precluded from 

reviewing the new justification raised by the Commonwealth. Jarvis v. 

Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998). As this Court has previously 

held, an appellee may present alternative reasons justifying the decision of the 

trial judge and an appellate court may affirm a lower court ruling for any 

reason supported by the record. Commonwealth v. Mitchell, 610 S.W.3d 263, 

271 (Ky. 2020). In the present case however, there is no need to review 

alternative justifications.

The determination of whether statements are excluded from the general 

prohibition on hearsay under the medical diagnosis and treatment exception 

“is governed by a two-part test: ‘(1) the declarant's motive in making the 

statement must be consistent with the purposes of promoting treatment; and, 

(2) the content of the statement must be such as is reasonably relied on by a 

physician in treatment or diagnosis.’”

18

18 Colvard v. Commonwealth, 309 S.W.3d 239, 245 (Ky. 2010) (quoting 

Willingham v. Crooke, 412 F.3d 553, 561–62 (4th Cir. 2005) (internal citation omitted)).
13

Upon review of Nurse Yazel’s testimony, led by the Commonwealth, we 

find that the hearsay contained therein is admissible as statements made for 

the purposes of medical treatment and diagnosis. Although a medical provider 

may not testify about all conversations with a patient,19 the provider may 

testify about the patient’s statements of the “type reasonably relied on by a 

physician in treatment or diagnosis . . . and ar[ising] from the declarant’s 

purpose of promoting treatment.”20 The Commonwealth mischaracterizes this 

rule, stating that only T.J.’s statements Nurse Yazel actually used in treating 

T.J. are admissible. However, KRE 803(4) grants admissibility to those 

statements made for the purpose of obtaining treatment, so long as they are 

the type of statements that a physician would use for treatment or diagnosis. 

There is no requirement that the statements were determinative of the 

treatment or diagnosis provided, but only that they were pertinent for the 

patient to disclose under the circumstances.

We find T.J.’s three primary statements to Nurse Yazel—(1) she had been 

raped, (2) the assailant had held her at knifepoint, and (3) that the assailant 

had tried to force her to consume drugs—were statements made by T.J. for the 

purpose of obtaining medical treatment, and they were the type of information 

a medical provider would rely upon in treating a patient. These statements 

would alert a medical provider to the patient’s potential consumption of or 

exposure to recreational drugs, potential knife wounds, and potential vaginal 

19 Tackett, 445 S.W.3d at 27.

20 Edmonds v. Commonwealth, 433 S.W.3d 309, 315 (Ky. 2014).
14

trauma—factors which would inform the care provided to the patient. As such, 

we find the trial court did not abuse its discretion in concluding that the KRE 

803(4) hearsay exception applied to Nurse Yazel’s testimony concerning T.J.’s 

statements to her.

D. The trial court did not err in admitting the 911 call into evidence.

Before trial, Seymour objected to the Commonwealth’s intended 

introduction of the 911 call into evidence. Seymour alleged that admission of 

the call into evidence violated his Sixth Amendment right to confrontation 

because he would be unable to examine the caller at trial. At trial, Seymour’s 

objection was also based on the assertion that the 911 call was inadmissible 

hearsay. The trial court ruled that the evidence was admissible because it was 

not being offered for the truth of the matter asserted, and thus the call was not 

inadmissible hearsay. The trial court did not make a ruling about the 

Confrontation Clause issue.

On appeal, Seymour abandons his argument that the 911 call was 

inadmissible hearsay and instead only argues that the call should have been 

excluded to preserve his Sixth Amendment right to confront a witness against 

him. 

“[T]he Confrontation Clause precludes admission of the statements of a 

witness unavailable to testify at trial if the witness' out-of-court statements 

were ‘testimonial,’ unless the accused had a prior opportunity to cross-examine 
15

the witness.”

21 We review such constitutional errors under a harmless-error 

standard, meaning that we will affirm the lower court only if we find that any 

error committed is harmless beyond a reasonable doubt.22

As a threshold matter to addressing Seymour’s argument, we must first 

determine whether the 911 call audio submitted into evidence is testimonial in 

nature such that Seymour’s right to confrontation is implicated. This Court 

has held that “statements that tell ‘what is happening’ are nontestimonial, 

while statements that tell ‘what happened’ are testimonial.”23 And we consider 

the perspective and intent of the speaker, rather than the listener, when 

determining whether a statement is testimonial.24

The 911 caller provided the following information to the 911 operator: 

“There’s a lady outside naked saying a man broke into her apartment and 

raped her and she’s screaming for me to call 911.” Further, the 911 caller 

stated that T.J.’s assailant had attacked her with a knife, and he was running 

“toward the YMCA behind the apartments.” Lastly, the caller relayed to the 

911 operator that T.J. was requesting an ambulance. The caller appeared to be 

primarily summoning aid for T.J., who was screaming and locked outside of 

21 Hartsfield v. Commonwealth, 277 S.W.3d 239, 242 (Ky. 2009) (citing Crawford 

v. Washington, 541 U.S. 36, 53-54 (2004)). 

22 Nunn v. Commonwealth, 461 S.W.3d 741, 750 (Ky. 2015) (internal citations 

omitted).

23 Rankins v. Commonwealth, 237 S.W.3d 128, 131 (Ky. 2007) (quoting Davis v. 

Washington, 547 U.S. 813, 830 (2006)). 

24 Fisher v. Commonwealth, 620 S.W.3d 1, 6 (Ky. 2021) (internal citation 

omitted). 
16

her home naked. While the caller did relay some of T.J. and Heather’s 

statements about the details of the attack, like the assailant’s use of a knife, 

her statements were primarily reports of what appeared to be an ongoing 

emergency.

We conclude that the 911 call did not constitute a testimonial statement 

and, thus, Seymour’s right to confrontation was not implicated. So we affirm 

the decision of the trial court to admit the 911 call into evidence, but we do so 

on different grounds.25 As such, the trial court did not err in allowing the 911 

call to be admitted into evidence.

E. The trial court did not err in allowing the jury access to a computer 

during deliberations.

During deliberations, the jury requested access to a computer so it could 

view evidence that was contained on a CD. The trial court obliged and 

provided the jury with a computer. The CD in question contained three 

exhibits: audio of the 911 call, silent body-camera footage from one of the 

officers who responded to the 911 call, and video footage of Seymour’s 

interview with police. The jury did not specify which of these exhibits it 

intended to review. Seymour did not object to the trial court’s grant of the 

jury’s request for a computer on which to view the exhibits.

Seymour now alleges that the trial court erred in allowing the jury to 

have a computer because one of the exhibits on the CD was video footage of 

25 Pace v. Commonwealth, 529 S.W.3d 747, 758 (Ky. 2017) (citing Kentucky

Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803, 805 n.3 (Ky. 

2010)).
17

Seymour’s interview with police—a testimonial witness statement. Because 

this argument is unpreserved, we review it only for palpable error.26 Palpable 

error is that which creates “manifest injustice” or which is “shocking or 

jurisprudentially intolerable.”27 On review, we consider whether there is a 

substantial possibility that the outcome of the case would have been different 

but for the alleged error.28

RCr 9.72 provides that, “[u]pon retiring for deliberation the jury may take 

all papers and other things received as evidence in the case.” This rule has 

been interpreted as granting the trial court discretion in determining those 

items of evidence a jury is permitting to bring into the jury room during 

deliberations.29 But several categories of evidence have been designated as 

exceptions to this rule: “expert opinion letters or summaries, depositions, [and] 

recorded witness statements[.]”30 Although these items may be admitted into 

evidence, they are not permitted to be taken into the jury room because “doing 

so would be akin to sending a witness back to the jury room.”31

Seymour correctly states that testimonial witness statements are 

categorically prohibited from being brought to the jury room for review.32 He 

26 Kentucky Rule of Criminal Procedure (RCr) 10.26.

27 Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006). 

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

29 Johnson v. Commonwealth, 134 S.W.3d 563, 567 (Ky. 2004). 

30 McAtee v. Commonwealth, 413 S.W.3d 608, 620 (Ky. 2013).

31 Id. 

32 Id. at 622.
18

also correctly identifies his recorded interview with police as a testimonial 

witness statement.33 At the outset, we reaffirm this Court’s longstanding rule 

that testimonial witness statements cannot be taken into the jury room. So the 

trial court erred in allowing the jury to take the CD containing the video of 

Seymour’s interview with police into the jury room. However, Seymour fails to 

provide evidence that the testimonial witness statement was viewed by the jury 

in the jury room. In cases where improper evidence was taken into the jury 

room but was not actually viewed by the jury during deliberations, this Court 

has found that the “mere possibility” of improper evidence being viewed by the 

jury during deliberations cannot be said to have affected the substantial rights 

of the parties.

34

Additionally, Seymour fails to show that, if the jury did view his 

testimonial witness statement in the jury room, a substantial probability exists 

that viewing this video changed the outcome of the jury’s decision. The video of 

his interview with police had already been viewed by the jury as an exhibit 

during the trial, so even if the jury re-watched the video while deliberating, it 

was presented with no new evidence or testimony. So we find no substantial 

probability that the trial court’s error in allowing the CD containing Seymour’s 

interview with police to enter the jury room changed the outcome of the jury’s 

decision, and we conclude that the trial court’s allowing the CD into the jury 

room did not rise to the level of palpable error.

33 Id. at 623.

34 See Commonwealth v. Wright, 467 S.W.3d 238, 244 (Ky. 2015).
19

F. The trial court did not err in failing to strike Juror No. 2615470 for 

cause. 

During voir dire, defense counsel asked prospective jurors if they had a 

personal experience or a friend or family member who had an experience with 

sexual assault. Juror No. 2615470 responded that his sister was involved in 

an unresolved sexual assault 30 years earlier. When asked by defense counsel 

whether it would be “hard to hear allegations and stories from witnesses” in 

this case, he said, “Somewhat.” Defense counsel moved to strike Juror No. 

2615470 for cause, and the trial court denied the motion. As a result, defense 

counsel used a peremptory strike to exclude Juror No. 2615470 from the jury 

pool.

We review a trial court’s decision whether to strike a juror for cause 

under an abuse-of-discretion standard.35 We will conclude a trial court abused 

its discretion only if we find its decision to be “arbitrary, unreasonable, unfair, 

or unsupported by sound legal principles.”36 

In determining whether to strike a potential juror for cause, the trial 

court “must weigh the probability of bias or prejudice based on the entirety of 

the juror's responses and demeanor.”

37 Under RCr 9.36(1), a judge is required 

to excuse a prospective juror when there is reasonable ground to believe he or 

35 Basham v. Commonwealth, 455 S.W.3d 415, 420–21 (Ky. 2014) (internal 

citation omitted). 

36 Goodyear, 11 S.W.3d at 581.

37 McDaniel v. Commonwealth, 341 S.W.3d 89, 92 (Ky. 2011) (citing Shane v. 

Commonwealth, 243 S.W.3d 336, 338 (Ky. 2008)).
20

she cannot be impartial. Such impartiality may manifest itself as a general 

state of mind or through a direct response to questioning.38

Seymour argues that because Juror No. 2615470 said that it would be 

“somewhat” difficult for him to hear the testimony and allegations in this case, 

he lacked the ability to act as an impartial juror. We disagree. It would, no 

doubt, be difficult for anyone to hear testimony about an alleged violent rape. 

Juror No. 2615470’s difficulty in hearing about the incident at issue in this 

case, without more, is not grounds for striking him for cause. This Court has 

held that the mere fact that a juror, or, in this case, a juror’s sister, “has been 

the victim of a crime like the crime being tried does not by itself imply a 

disqualifying bias. Additional evidence of bias is required.”39 Several factors 

bearing on the existence of bias are “the similarity between the crimes, the 

length of time since the prospective juror’s experience, and the degree of 

trauma the prospective juror suffered.”40 

Juror No. 2615470’s statements that his sister was involved in an 

unresolved incident 30 years prior and that he was close to his sister are an 

insufficient basis from which to conclude that he could not participate as an 

impartial juror. Juror No. 2615470 did not say or imply that his prior 

experience would prevent him from acting impartially, and Seymour did not 

38 See id. (citing United States v. Wood, 299 U.S. 123 (1936); Pennington v. 

Commonwealth, 316 S.W.2d 221 (Ky. 1958)).

39 Ward v. Commonwealth, 587 S.W.3d 312, 328 (Ky. 2019) (citing Brown v. 

Commonwealth, 313 S.W.3d 577, 598 (Ky. 2010) (internal citations omitted)).

40 Id.
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ask Juror No. 2615470 if his experience would affect his ability to act as an 

impartial juror. Based on this record, we cannot conclude that Juror No. 

2615470 lacked the ability to act as an impartial juror. As such, we conclude 

that the trial court did not err in denying Seymour’s motion to strike Juror No. 

2615470 for cause.

III. CONCLUSION

Finding none of Seymour’s assertions of error meritorious, we affirm the

judgment of the Jefferson Circuit Court.

All sitting. All concur.
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COUNSEL FOR APPELLANT:

Joshua Michael Reho

Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General