RENDERED: OCTOBER 31, 2019

TO BE PUBLISHED

2018-SC-0000056-MR

BENJAMIN DWAYNE WARD APPELLANT

ON APPEAL FROM BOONE CIRCUIT COURT

V. HONORABLE JAMES ROGER SCHRAND II, JUDGE

NO. 16-CR-00044

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING AND REMANDING

A Boone County jury found Benjamin Dwayne Ward guilty of three

counts of first-degree sexual abuse, two counts of third-degree rape, four

counts of third-degree sodomy, one count of use of a minor in a sexual

performance, and two counts of possession of matter portraying a sexual

performance by a minor. For these crimes, Ward was sentenced to 70 years ’

imprisonment. Ward now appeals the resulting judgment as a matter of right, 1

raising several allegations of trial court error. Finding that the trial court erred

by not striking one of the jurors for cause, Ward ’ s conviction must be reversed.

1 Ky. Const. § 110(2)(b) ( “ Appeals from a judgment of the Circuit Court imposing a

sentence of

. . . imprisonment for twenty years or more shall be taken directly to the

Supreme Court. ” ).I. BACKGROUND.

The victim moved in with her father when she was eight years old after

her parents divorced. The victim, her siblings, her father, and her step-mother

lived together near Ward and his wife, Cindy. The families became friends and

often spent time together.

When the victim was around 11 or 12 years old, she began spending

more time at the Wards ’ house, usually without her siblings. The Wards were

truck drivers and spent much of their time away from home. But when the

Wards were home, the victim was frequently there with them.

Initially, Ward behaved as a father figure toward the victim, but his

attraction to her became sexual. Ward began to embrace her and touch her

and refer to her as “ his little girlfriend. ”

Ward bought the victim gifts, including a pair of expensive boots, jewelry,

and clothes, and gave her a credit card. Ward devised a scheme to give gifts to

the victim without Cindy ’ s knowledge. To that end, Ward would leave the gifts

in his truck and inform the victim he had left a gift for her. The victim would

then sneak out at night and retrieve them.

The first instance of sexual touching occurred when the victim was about

11 -years-old. Ward started rubbing the victim ’ s pants, which led to him using

his hand to rub the victim ’ s vagina over her pants. Ward also kissed the victim

on the lips and touched her breasts and buttocks. Another instance of sexual

touching occurred in Ward ’ s pickup truck. Ward would often pick the victim up

a few streets away from their houses and drive her to school. On one occasion

in the truck, Ward rubbed the victim ’ s vagina with his hand, then started

kissing her, which led to him almost driving off the road. Yet another instance

2of sexual touching occurred when the victim was sitting on Ward ’ s lap in a

computer chair, where he rubbed the victim ’ s vagina over her pants.

The first time Ward had sexual intercourse with the victim was when

they were in a room in the Ward residence called the “ bat cave. ” The victim was

between 12 and 14-years-old at the time. Ward asked for sex, and the victim

replied, “ You ’ re my boyfriend. Sure. ” Ward then engaged in sexual intercourse

with the victim, but he stopped after she began crying because of the pain. The

second time Ward had intercourse with the victim was when they were in

Ward ’ s basement. The victim testified that she was about 13-years-old at this

time. Again, Ward stopped engaging in intercourse with her after she started

crying because of the pain.

Ward also caused the victim to perform oral sex on him. One instance

occurred in the “ bat cave ” when the victim was either 13 or 14-years-old.

Another instance occurred either in the “ bat cave ” or in the basement of the

Ward residence. A third instance occurred outside after Ward asked the victim

to sneak outside and meet him, which she did after Ward begged for an hour.

Ward and the victim often engaged in sexting. On one occasion, Ward

told the victim that he was upset about something and needed the victim to

cheer him up, asking the victim to send him nude photos. The victim complied

and sent him four nude photos.

Cindy eventually suspected impropriety between Ward and the victim.

Cindy began to find the victim alone with Ward in the Ward residence. On one

occasion, Cindy found the victim clad only in her underwear asleep on the

futon in the “ bat cave. ” Cindy eventually learned of the gifts Ward had been

leaving for the victim in his truck.

3The victim ’ s father and step-mother discovered a letter written by her

that claimed she was in a romantic relationship with Ward. That same month,

the Northern Kentucky Children ’ s Advocacy Center interviewed the victim. She

told the advocacy center that she and Ward were engaged in a “ romantic

relationship ” and that they would communicate via Facebook. During the

interview, the victim explicitly and repeatedly denied any physical contact or

sexual activity with Ward. The victim also stated that she had written the letter

because she was angry at Ward for not buying her an iPad. Following a second

interview, the sheriffs department determined that the victim was “ out of

control ” because of her tumultuous family situation but insufficient evidence

was available to proceed with a criminal investigation.

Soon thereafter, Cindy received a sexually explicit text message from

Ward that was intended for the victim. In the text message, Ward

communicated his desire to perform oral sex on the victim. When confronted,

Ward and the victim both claimed that they had never engaged in a sexual act

together.

One night, while Ward and Cindy were watching a movie in the “ bat

cave, ” Cindy turned to see Ward looking at his phone. Cindy then noticed Ward

squirming in his seat and rubbing his penis. When Cindy viewed Ward ’ s phone,

she became aware that Ward was engaged in a live video chat with the victim in

which the victim was nude and displaying her genitals.

Cindy called the sheriff, stating that she had just witnessed her husband

watching on his phone a live video of a naked minor. Cindy provided the

officers with several pieces of paper that she had found in the trash containing

sexually explicit drawings and references to the victim, presumably created by

4Ward. The victim testified that Ward used these drawings to communicate

silent sexual conversations with her and give her directions over video. After

Cindy ’ s report, the sheriffs department arranged for Cindy to attempt a

recorded, controlled phone call with Ward.

During the call, Cindy repeatedly asked Ward for details on the livestream video incident she witnessed and for details of his relationship with the

victim. Ward stated that the victim approached him and that they had engaged

in sexting. As the call with Cindy continued, the couple argued, with Cindy

making accusations and Ward issuing repeated denials. Ward stated he was

going to set the house on fire, to which the sheriffs department responded by

sending two officers to secure the residence.

Following the officers ’ securing and searching the residence, one of the

officers interviewed the victim. The victim stated that she and Ward had sexted

several times, but she denied any physical, sexual contact between them.

Following this interview, investigators took no further action for six months

while waiting on a full analysis of all electronic devices seized during the search

of the Ward residence.

Finally, the victim had a third interview with the Northern Kentucky

Children ’ s Advocacy Center. The victim said that she was in a “ healthy, normal

relationship ” with a young man her own age who encouraged her to tell her full

story. The victim then admitted that she and Ward had engaged in sexual acts

together. The victim described how the relationship began when she was

around 11 years old and continued until she was 15 years old. The victim said

that she had become infatuated with Ward and considered him her boyfriend.

5She then described the events recounted above. Based on this interview, the

Commonwealth brought charges against Ward that led to his indictment.

At trial, the jury found Ward guilty of three counts of first-degree sexual

abuse, two counts of third-degree rape, four counts of third-degree sodomy,

one count of use of a minor in a sexual performance, and two counts of

possession of matter portraying a sexual performance by a minor. For these

convictions, Ward was sentenced to a total of 70 years ’ imprisonment. And the

trial court entered judgment accordingly. This appeal followed.

II. ANALYSIS.

A. The trial court did not err in denying Ward ’ s motion to dismiss the

indictment or, in the alternative, to disqualify the Commonwealth

Attorney ’ s Office and Sheriff's Department.

1. Ward ’ s recorded phone calls from jail included privileged

attorney-client communications.

Ward first challenges as error the trial court ’ s denial of his motion to

disqualify the Office of the Commonwealth ’ s Attorney for the 54th Judicial

Circuit and the Boone County Sheriffs Department for violating his right to

privileged attorney-client communication. The background for this motion was

the fact that the Commonwealth ’ s Attorney ’ s office and the sheriffs office

reviewed recordings of all telephone calls Ward made from the jail while

incarcerated pretrial. The basis for this motion was the fact that among those

recordings were several conversations about trial strategy between Ward and

his defense counsel. This issue is preserved for our review.

6“ Any prosecuting attorney may be disqualified by the court

. . . upon a

showing of actual prejudice. ” 2 We review a trial court ’ s denial of a defendant ’ s

motion to disqualify a prosecutor for abuse of discretion. 3 “ The test for abuse of

discretion is whether the trial judge ’ s decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles. ” 4

Ward moved to disqualify the Commonwealth ’ s Attorney ’ s Office and the

Boone County Sheriffs Office after he received from the Commonwealth

through pretrial discovery recordings of telephone calls Ward made from jail

over a 20 to 21 -month period of pretrial incarceration. Contained within those

recorded calls were 48 recorded calls between Ward and his defense counsel.

Because the Commonwealth ’ s Attorney and the Sheriffs Department were in

possession of these recordings containing privileged attorney-client

communications, Ward argued, both entities should be disqualified from

prosecuting the case. Ward proposed a remedy of new prosecution and law

enforcement investigators to ensure that his Sixth Amendment right to counsel

would not be violated.

The trial court conducted an initial hearing in response to Ward ’ s

motion. Defense counsel explained that included in the 48 phone calls was

substantive communication between Ward and defense counsel regarding trial

strategy and witnesses, although defense counsel acknowledged that he had no

evidence that the Commonwealth listened to any of the recorded calls.

2 KRS 15.733(3).

3 Calhoun v. Commonwealth, 492 S.W.3d 132, 138 (Ky. 2016) ( “ The trial court did not

abuse its discretion in allowing the prosecution to proceed. ” ).

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

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

7Assistant Commonwealth ’ s Attorney Corey Gamm responded that to

prepare for trial he routinely subpoenas the recordings of a defendant ’ s

incoming and outgoing jail calls. Gamm then explained, “ In cases where there

are attorney calls

. . . we don ’ t listen to them.

... As long as I ’ ve been doing

this that ’ s how we ’ ve always done it. ” Gamm stated that he had not listened to

any of the calls between Ward and defense counsel because “ that ’ s just not

what we do. ” Another prosecutor explained that both parties to a jail call

receive a recorded message stating that the call is being recorded, but defense

counsel responded to that assertion by stating that the message also includes

an assurance that attorney-client conversations are not recorded. 5 Finally,

Gamm stated that while listening to Ward ’ s calls, if he happened across a call

between Ward and defense counsel, he skipped that call.

Clearly concerned about the potential breach of confidential attorneyclient communication, the trial court held a second hearing a couple of weeks

later. At this hearing, defense counsel called Gamm to testify under oath.

Gamm began his testimony by explaining that, as a rule, he files in the record

the subpoena of the inmate ’ s telephone record, but he did not do so in the

present case because he forgot to do so. 6 Gamm admitted that he did not give

defense counsel notice of the issuance of the subpoena.

5 As revealed by testimony at a second hearing, theses calls do, in fact, contain a

message excepting attorney-client calls from being subject to recording.

6 Testimony provided at the hearing revealed that the jail contracts with a privatesector communications company for phone services for jail inmates. For this reason,

the Commonwealth needed a subpoena directed to that company to obtain its phone

records.

8Gamm then testified that he received the calls sometime in March. He

placed the discs containing the calls in an office file and did not listen to them

until August. Gamm sent a message to defense counsel on August 16 and

made a copy of the discs, which defense counsel obtained. Gamm testified that

he had not listened to any of Ward ’ s phone calls at that point in time.

When Gamm began the process of listening to the phone calls, he

encountered such a high volume of calls that he assigned listening duties of

one of the discs to Detective Parker of the Boone County Sheriffs Department.

Gamm played the recording of the calls “ in the background while [he] was

working on other things. ” Gamm stated, “ I can ’ t tell you how far I got into it,

but at one point I did realize there was a call between Mr. Ward and [defense

counsel]. ” Gamm could not pinpoint a specific day or time when he

encountered that call, but he thought that it was either “ several days or a

couple weeks ” after August 16.

Defense counsel then asked Gamm, “ So you listened to a conversation

between Mr. Ward and [defense counsel]? ” Gamm stated that he listened to no

more than ten seconds of the call and stopped listening when he realized he

was hearing a conversation between Ward and defense counsel. Defense

counsel then asked Gamm whether he had received jail-call recordings in the

past with attorney-client conversations on them, to which Gamm responded

that he had never heard an attorney-client call when listening to recorded jail

calls before. Gamm also stated that the possibility of hearing attorney-client

conversations on recorded jail calls had never occurred to him.

Defense counsel then asked what action Gamm took after realizing that

the Commonwealth was in possession of privileged attorney-client

9communications. Gamm responded by stating that he assumed that a mistake

had been made. He assumed that whatever system was in place to screen that

kind of conversation had failed with respect to that conversation. Gamm

testified that he thought, “ not a big deal. ” He stopped listening to that call and

only listened to a few more calls because the recordings were not divulging

information that would help his case. Gamm admitted that he should have

notified someone immediately when he heard the call to defense counsel, that

he did not give such notice, and that he wished he had. Gamm then testified

that he did not hear any privileged attorney-client communications other than

the ten seconds of the one call about which he testified.

Defense counsel then asked whether Gamm took any action to purge the

information from his office. Gamm had not. After defense counsel filed the

motion to disqualify, Gamm also asked Detective Parker to return the disc to

him.

During examination by the Commonwealth, Gamm backed away from his

statement made at the prior hearing that “ attorney-client calls are frequently

contained in the recordings. ” Gamm explained that his earlier statement came

from speaking with administrative personnel about another case that involved

this issue.

Detective Parker testified at the second hearing that she received two

discs from Gamm containing recorded phone calls. She testified that she did

not hear any conversations between Ward and defense counsel, and, in fact,

she listened to a small number of the total calls in general

— she only heard

conversations between Ward and his mother and sister and between Ward and

a man she did not know but whom she believed to be another inmate. While

10Detective Parker testified that she never heard defense counsel ’ s voice in any of

the phone calls she listened to, she did admit that she would have no way of

knowing whether the call she was listening to was between Ward and defense

counsel without Ward identifying defense counsel by name. She also testified

that she was not sure about the total number of phone calls to which she

listened.

2. Despite the Commonwealth ’ s possession of recordings of

privileged conversations, no Sixth Amendment violation

occurred; and trial court did not abuse its discretion by

declining to disqualify the prosecutor and the sheriff ’ s

department.

Ward argues that his Sixth Amendment right to counsel was violated

when the trial court denied his motion to disqualify the Commonwealth ’ s

Attorney ’ s Office and the Sheriffs Department. The facts here are troublesome,

but we conclude that the trial court did not abuse its discretion in denying

Ward ’ s disqualification motion because no Sixth Amendment violation occurred

here.

We dealt with the Commonwealth ’ s possession of privileged attorneyclient material in Brown v. Commonwealth. 7 The issue in Brown was “ [wjhether

the seizure of privileged material from a defendant ’ s jail cell violates that

person ’ s right to counself.] ” 8 In concluding that the defendant ’ s Sixth

Amendment right to counsel had not been violated, we began our analysis by

examining the U.S. Supreme Court ’ s decision in Weatherford v. Burse y 9 on this

7 416 S.W.3d 302 (Ky. 2013).

8 Id. at 306.

9 429 U.S. 545 (1977).

11issue. 10 In Weatherford, an undercover law enforcement agent accidentally

learned of attorney-client privileged information while working undercover. 11

The U.S. Supreme Court found no violation of the defendant ’ s Sixth

Amendment right to counsel because the intrusion was accidental and because

the undercover agent did not disclose any of the information gathered to the

prosecution. 12

In Brown, we also recognized the Sixth Circuit ’ s decision in U.S. v.

Steele 13 as providing guidance on this issue. 14 Specifically, the Sixth Circuit in

Steele listed the following four factors to consider when determining whether

the government has violated a defendant ’ s Sixth Amendment right to counsel:

1) whether the presence of the informant was purposely caused by

the government in order to garner confidential, privileged

information, or whether the presence of the informant was the

result of other inadvertent occurrences;

2) whether the government obtained, directly or indirectly, any

evidence which was used at trial as the result of the informant ’ s

intrusion;

3) whether any information gained by the informant ’ s intrusion

was used in any other manner to the substantial detriment of

the defendant; and

4) whether the details about trial preparations were learned by the

government. 15

In this case, the “ informant ” is the third-party company that records jail

calls through which the Commonwealth can obtain recordings of those calls by

10 Brown, 416 S.W.3d at 306.

11 Weatherford, 429 U.S. at 547-58.

12 Id.

13 727 F.2d 580 (6th Cir. 1984).

1 4 Brown, 416 S.W.3d at 306.

1 5 Id. (quoting Steele, 727 F.2d at 585).

12subpoenaing the records in the hands of the company. The weight of the

evidence adduced at the hearings before the trial court supports the conclusion

that an inmate ’ s incoming or outgoing telephone calls are recorded for several

reasons not considered improper government conduct

— reasons like preventing

an inmate from committing additional crimes either inside or outside the jail or

discovering when an inmate might instruct individuals on the outside to

destroy potentially incriminating evidence. The weight of the evidence supports

the additional conclusion that the Commonwealth obtains recorded jail calls to

gather information helpful to the defendant ’ s prosecution.

The weight of the evidence presented to the trial court does not support

the conclusion that the Commonwealth obtains a defendant ’ s incoming and

outgoing

jail calls to receive privileged communications between an inmate and

his or her attorney. And Ward does not identify any specific trial evidence that

the Commonwealth obtained through these recorded conversations or any

evidence that could not have been obtained outside of the Commonwealth ’ s

learning of it through these calls.

Evaluation of the third and fourth Brown factors proves to be more

difficult. There is no dispute that the Commonwealth was in possession of

recordings of all the phone calls between Ward and defense counsel. Without

revealing the content of the communications, we can say that the phone calls

contain conversations between Ward and defense counsel about trial strategy.

But Assistant Commonwealth ’ s Attorney Gamm swore under oath that he only

inadvertently heard around five to fifteen seconds of one conversation between

Ward and defense counsel, while Detective Parker swore that she heard no

13conversation between the two. Taking the witnesses at their word, 16 the issue

then becomes whether mere possession of privileged attorney-client

information by the state violates the Sixth Amendment. In this case, under

these facts, we cannot find that to be the case.

Searching for case law from other jurisdictions to aid our analysis, the

most analogous case we found is the unreported decision of the U.S. District

Court for the District of Arizona in U.S. v. Guzman-Solis. 17 Just as in this case,

the defendant sought to dismiss his case because the prosecution had

recordings of

jail phone calls, some of which included conversations between

the defendant and his attorney. 18 Similar to the ratio of attorney-client

conversations to the total number of calls at issue in the case at hand, the

prosecution in Guzman-Solis had ten hours of recordings of jail telephone calls

that included “ approximately 45 minutes of privileged attorney-client

conversations between counsel and Defendant, during which they discussed

trial strategy. ” 19 The conversations between the defendant and his attorney

16 Detective Parker did not appear to contradict herself in any way, but Attorney

Gamm made contradictory statements in the second hearing that also contradicted

statements he made in the first hearing, including: 1) at the first hearing he stated

that it was the policy of the Commonwealth ’ s Attorney ’ s Office simply to skip over

recorded attorney-client phone calls but recanted that statement at the second

hearing; 2) at the first hearing, he stated that he had not listened to any of the

privileged calls but admitted to having listened to the first ten seconds of one call in

the second hearing; and 3) at the second hearing, he stated that he had to click on

each phone call individually to be able to listen to it but then minutes later stated that

the recordings played automatically. Even so, the credibility of witnesses is for the

factfinder, here, the trial court, to determine, see Morgan v. Commonwealth, 421

S.W.3d 388, 393 (Ky. 2014), and we cannot say that the trial court abused its

discretion in its ultimate decision.

17 No. CR-14-01729-001-TUC-CKJ, 2015 WL 13283396, (D. Ariz. Oct. 19, 2015).

18 Id. at *5.

1 9 Id.

14were in Spanish, so the prosecutor had a detective who spoke Spanish listen to

the phone calls. 20 While the prosecutor never heard a conversation between the

defendant and his attorney, the detective did hear the beginning of one

conversation “ but she stopped listening when she recognized the attorney ’ s

voice. ” 21

The Court in Guzman-Solis began by examining the Ninth Circuit ’ s

decision in U.S. v. Danielson 22 for guidance. 23 The Court explained that in

Danielson, “ the prosecution team deliberately and affirmatively took steps[] that

resulted in obtaining privileged information about Danielson ’ s trial strategy. ” 24

The Court then specifically described the prosecution ’ s actions in Danielson:

Members of the prosecution team wrote and retained memoranda

containing privileged trial strategy information, as well as recorded,

listened to, transcribed, and retained the tapes and transcripts

containing the privileged information. In addition, the Assistant

United States Attorney in charge of the prosecution retained in his

private office memoranda and unredacted transcripts containing

the privileged information. None of this material was produced to

Danielson or his counsel during pre-trial discovery. 25

The Court then highlighted the holding in Danielson:

The government ’ s interference with Danielson ’ s attorney-client

relationship was neither accidental nor unavoidable, but was

rather the result of deliberate and affirmative acts. We therefore

hold that if there was prejudice there was a violation of the Sixth

Amendment under Weatherford[.]

. . . For a determination of

prejudice, we rely on United States u. Mastroianni 26 and Kastigar v.

20 id.

21 Id.

22 325 F.3d 1054 (9th Cir. 2003).

23 Guzman-Solis, 2015 WL 13283396, at *5.

24 Id. (citing Danielson, 325 F.3d at 1059).

25 Guzman-Solis, 2015 WL 13283396 at *5 (quoting Danielson, 325 F.3d at 1059).

26 749 p.2d 900 (1st Cir. 1984).

15United States 27 to hold that the government has the “ heavy

burden ” of proving non-use of Danielson ’ s trial strategy

information. We remand to the district court for an evidentiary

hearing for a determination of prejudice under this case. 28

The Court then dissected the analysis and holding of the Danielson Court.

“ To prevail [ ,]

... a defendant must first make a prima facie showing of

prejudice. ” 29 “ The Danielson court rejected a perse rule of prejudice; that is,

mere possession by the prosecution of otherwise confidential trial strategy

information does not establish prejudice. ” 30 “ Rather,

. . . the government

informant must have acted affirmatively to intrude into the attorney-client

relationship and thereby to obtain the privileged information. ” 31 “ Other cases

support the requirement that the government must act affirmatively to intrude

into the attorney-client relationship. ” 32

The Guzman-Solis Court then broke down the analysis that courts

should conduct

in this situation:

27 406 U.S. 441 (1972).

28 Guzman-Solis, 2015 WL 13283396 at *5 (quoting Danielson, 325 F.3d at 1059).

29 Id. (citing Danielson, 325 F.3d at 1071).

30 Id.

31 Id. (quoting Danielson, 325 F.3d at 1071).

32 Id. (citing U.S. v. Ramos, No. CR 13-403-CAS, 2014 WL 8817652, at *4-5 (C.D. Cal.

2014); Cooper v. Mayfi, No. C 06-4872 MJJ (PR), 2008 WL 608336, at *13 (N.D. Cal.

2008)). In Ramos, the court declined to hold a Danielson hearing where the defendant

had obtained a confidential informant file by subpoena from the Department of

Homeland Security ( “ DHS ” ) and the court ordered the DHS subpoena turned over to

the case agent, who discussed the subpoena with the prosecution team, because there

was no evidence that trial strategy had been revealed. Ramos, 2014 WL 8817652 at

*4-5. In Cooper, documents had been seized from the defendant ’ s jail cell pursuant to

a search warrant. Cooper, 2008 WL 608336 at *13. The court in Cooper found no

evidence that the government had deliberately intruded on the attorney clientrelationship to obtain defense trial strategy because the search warrant related to an

investigation of threats to potential witnesses, the prosecutor filed a declaration

stating that he had not seen the material, and the officer conducting the search

assured the prosecutor that it was done in a manner to respect attorney-client

privilege. Id.

16The burden is on Defendant to demonstrate that the

circumstances of the taping of any privileged call from the jail

constitute an affirmative action by the government to intrude into

the attorney-client privilege, rather than an inadvertent recording

of such a call.

. . . Mere possession by the prosecution of otherwise

confidential trial strategy information does not establish

prejudice. 33

The Guzman-Solis Court then examined the facts of the case before it:

In the present case, there was no government informant or meeting

in the attorney ’ s office. The conversation was improperly recorded

at the jail, and the Court assumed that Defendant discussed trial

strategy with his attorney. But there is no allegation, much less

evidence, that the [jail] routinely tape records attorney-client

telephone calls or visits or that [the jail] has no protocol for

privileged calls or visits. In fact, the declarations of [two witnesses]

establish procedures for both visits and ingoing and outgoing

telephone calls and generally for maintaining confidentiality where

appropriate. And there is no allegation or evidence that the

prosecutor sought to obtain recordings of privileged conversations.

Even defense counsel conceded at oral argument that the

recording was negligent but inadvertent. Thus, the Court finds no

evidence that taping the confidential attorney-client conversation

was anything other than a mistake[.]

... In other words, the

recording itself does not demonstrate the kind of affirmative

intrusion into the attorney-client relationship that concerned the

court in Danielson.

In addition, at oral argument, the prosecutor made an offer of proof

regarding the circumstances of her request for jail recordings. She

asserted that she requested Defendant ’ s jail calls in preparation for

trial and that because there were more than 10 hours of calls and

the prosecutor believed that they were in Spanish, she asked a

Border Patrol agent fluent in Spanish to listen to specific days of

the calls relevant to the timeline of the case. The Border Patrol

agent was not the case agent and not a member of the prosecution

team. The agent listened to the specified calls and informed the

prosecutor that at the beginning of one of the calls she recognized

the defense attorney ’ s voice and immediately turned off the call. No

other calls were identified by the agent. Defendant submits

evidence that the prosecutor was in possession of the taped call for

approximately five months before notifying defense counsel and

still has possession of the recording. But the prosecutor

specifically represented that no calls between the Defendant and

his attorney were listened to by anyone on the prosecution team.

33 Guzman-Solis, 2015 WL 13283396 at *6 (citing Danielson, 325 F.3d at 1071-72)

17The Court finds that here, in contrast to Danielson, there is no

evidence that the tape-recorded conversation was listened to by the

prosecution or that the prosecution otherwise acquired knowledge

of the contents of the privileged conversation. Therefore, there was

no prejudice to Defendant. 34

The Court concluded, “ Because Defendant has not met his initial burden to

show that the government purposefully intruded into Defendant ’ s attorneyclient relationship and there is no evidence that defense strategy was

communicated to the prosecutor, the Court need not hold a Kastigar hearing.

Nor will the Court disqualify the [prosecution]. ” 35

Just as the court in Guzman-Solis, we find in the present case, “ there is

no allegation, much less evidence, that the [jail] routinely tape records

attorney-client telephone calls or visits or that [the jail] has no protocol for

privileged calls or visits. ” 36 In fact, at the second hearing, an individual from

the third-party company that records the jail phone calls testified to such. The

individual testified that the system has a mechanism for screening calls

between attorneys and their clients. That mechanism is triggered by either (1)

the attorney calling the company to notify the company of all the attorney ’ s

phone numbers so that the system can recognize those numbers and stop the

recording of calls when those numbers appear or (2) the company itself obtains

all phone numbers of attorneys listed in the phone book and manually inputs

them to prevent the recording of calls associated with those numbers. Here, it

appears that defense counsel called from a cell phone, which is why the system

did not screen those calls. While the company ’ s system is not flawless, it does

34 id. at *8.

35 Id. at *9.

36 Id. at *8.

18erect safeguards against routine recording of attorney-client calls, supporting a

conclusion that attorney-client calls are not routinely recorded.

Moreover, just as in Guzman-Solis, in this case, “ there is no allegation or

evidence that the prosecutor sought to obtain recordings of privileged

conversations. ” 37 In other words, no evidence appears in this record to support

a claim that the Commonwealth ’ s Attorney ’ s Office or the Sheriffs Department

affirmatively sought to obtain Ward ’ s privileged phone calls; rather, the

obtaining of such calls was a mistake.

We acknowledge the one distinctive fact separating Guzman-Solis and

this case

— in Guzman-Solis, the prosecution heard none of the calls, 38 while in

this case the evidence reveals that the prosecution admits to having heard no

more than five to fifteen seconds of one call. Even so, the Guzman-Solis Court

concluded that no Sixth Amendment violation occurred in that case because

“ there [was] no evidence that defense strategy was communicated to the

prosecutor. ” 39 Likewise in the case before us, no evidence suggests that defense

strategy was communicated to the prosecutor. The content of the conversations

that Attorney Gamm heard was never disclosed at the hearings. And Detective

Parker testified that the calls she heard only included calls between Ward and

his mother and sister and one call between Ward and what she believed to be

another inmate. As such, the difference in that fact alone between GuzmanSolis and this case cannot provide the basis for us to conclude that a Sixth

37 id.

38 Id.

39 Id. at *9.

19Amendment violation occurred here because there is no evidence that the

prosecution learned of Ward ’ s defense strategy.

A recusal by Attorney Gamm would have been appropriate and could

have averted to a large degree the struggle on this troublesome issue. But upon

careful review of this record and the law, we find no abuse of discretion in the

trial court ’ s denying Ward ’ s motion to disqualify the Commonwealth ’ s

Attorney

’ s Office and the Sheriffs Department because Ward ’ s Sixth

Amendment right to counsel was not actually compromised.

B. The trial court ’ s denial of Ward ’ s request to remove Juror 277 during

jury selection was an error mandating reversal.

Ward next challenges the trial court ’ s denial of his motion to remove

three jurors

— Juror 277, Juror 183, and Juror 238

— for cause. The

Commonwealth does not dispute preservation of these alleged errors, but we

think the issue warrants discussion.

As outlined in Gabbard v. Commonwealth, to complain on appeal that a

defendant was denied a peremptory challenge by a trial judge ’ s erroneous

failure to grant a for-cause strike, the defendant must use a peremptory

challenge to remove the complained-of juror and then identify on his strike

sheet any additional jurors he would have struck. 40 In this case, Ward ’ s

attorney clearly used a peremptory strike on Jurors 277 and 238. Whether

Ward ’ s attorney used a peremptory strike on Juror 183, however, is less clear.

But after careful examination of the record, we conclude that he did.

40 297 S.W.3d 844, 854 (Ky. 2009).

20Ward ’ s attorney ’ s strike sheet contains a list of jurors that made up the

venire, identified by their juror numbers. A blue “ X ” appears on the sheet next

to the names of eight of those jurors, signaling to the reviewing court that a

peremptory strike was used on that juror. While a blue “ X ” appears next to

Jurors 277 l and 238, one does not appear next to Juror 183.

Nevertheless, immediately after the attorneys turned in their strike

sheets to the bench clerk, but before the jury panel was selected, Ward ’ s

attorney approached the bench and made clear his effort to preserve the

alleged errors with respect to Jurors 277, 238, and 183. The attorney stated to

the trial court that he had used peremptory strikes for Jurors 277, 238, and

183 and that in order “ to comply with Gabbard ’ he needed to designate on the

record three jurors that he would have struck in their place had those

peremptory strikes been available to him. He then stated that the jurors he

would have struck were Jurors 153, 228, and 183. After the trial court pointed

out that Juror 183 was one of the jurors for whom a peremptory strike was

allegedly used, Ward ’ s attorney turned to another attorney on Ward ’ s team and

asked him to find a different juror to designate instead of Juror 183. Still at the

bench, Ward ’ s attorney then addressed his co-counsel and asked, “ [W]e did

strike 183, right? ” After the co-counsel gave an answer inaudible on the record,

Ward ’ s attorney turned to the bench clerk and asked, “ Can I see that strike

sheet? ” The conversation with the clerk was not audible on the record, but

after several moments, Ward ’ s attorney returned to the bench and informed the

trial court that he would have struck Juror 205.

Faced with Ward ’ s attorney ’ s interactions with the trial court and the

bench clerk after he turned in his strike sheet, and his representation that he

21had in fact used a peremptory strike on Juror 183, we are hesitant to rely

solely on the face of the strike sheet as it appears in the record. Even if Ward ’ s

attorney had initially failed to use a peremptory strike for Juror 183, we think

it is likely that he changed his peremptory strike selections to include Juror

183 when he conferred with the bench clerk, having not told the trial court

anything else to correct his representation that he had in fact used a

peremptory strike on Juror 183.

Based on the whole record before us, we take Ward ’ s attorney at his word

and conclude for the sake of this appeal that he did in fact exercise a

peremptory strike on Juror 183. As such, Ward ’ s attorney complied with

Gabbard with respect to the alleged errors for Jurors 277, 238, and 183: He

made motions to remove each of the three jurors for cause, and, after the trial

court denied each motion, he used one of his allotment of peremptory strikes to

remove each of them from the venire. He then identified orally on the record

three additional jurors he would have struck: Jurors 153, 228, and 205. 41

Moving forward, however, this Court finds it necessary to instate a new

rule with respect to juror errors: To complain on appeal that a party was forced

to use one of the party ’ s peremptory challenges because of the trial court ’ s

erroneous failure to grant a for-cause strike, the defendant must use a

peremptory strike on that juror and show that the peremptory strike was used

41 In Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), we held that a defendant

substantially complied with Gabbard ’ s requirement “ that the defendant must identify

on the strike sheet other jurors he would have struck ” by instead identifying those

jurors orally on the record. See id. at 284-85 (citing Gabbard, 297 S.W.3d at 854)

(emphasis in original). Accordingly, Ward ’ s attorneys adequately identified for our

review the jurors they would have struck.

22on their strike sheet. The defendant must then designate, again on his

peremptory strike sheet, the jurors he would have struck had the peremptory

strike been available to him. We recognize trial practice varies across the

Commonwealth, but we find it necessary to require each of these designations

to appear clearly on the party ’ s strike sheet to achieve for appellate review a

precise preservation of alleged jury-selection errors.

Finding that these errors are preserved in the case at hand, we now must

determine whether the trial judge erred in denying Ward ’ s motion to strike for

cause Jurors 277, 238, or 183.

“ Defendants are guaranteed the right to an impartial jury by the Sixth

Amendment to the United States Constitution, as well as Section Eleven of the

Kentucky Constitution. Denial of a defendant ’ s right to an impartial jury is a

structural error. ” 42 Accordingly, we review claims of a tainted jury for

structural error. As such, harmless error analysis is not appropriate, and

prejudice is presumed. 43

Kentucky Rule of Criminal Procedure ( “ RCr ” ) 9.36(1) identifies when a

trial court should excuse a juror for cause: “ 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 as not qualified. ” A trial court ’ s

decision on whether to strike a juror for cause is reviewed for abuse of

discretion. 44 “ Ultimately, ‘ [i]t is the totality of all the circumstances

. . . and the

42 Commonwealth v. Douglas, 553 S.W.3d 795, 799 (Ky. 2018) (citing Hayes v.

Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005)).

43 Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007).

44 Id. at 338.

23prospective juror ’ s responses that must inform the trial court ’ s ruling. ’ ” 45 And

“ the mere fact that a prospective juror 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. ” 46 “ Obvious factors bearing on the likelihood 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. ” 47

At the same time, we must adhere to the principle “ that objective bias

renders a juror legally partial, despite his claim of impartiality. ” 48 It is the

“ probability of bias or prejudice that is determinative in ruling on a challenge

for cause. ” 49 The trial judge must “ weigh the probability of bias or prejudice

based on the entirety of the juror ’ s responses and demeanor. There is no

‘ magical question ’ that can rehabilitate a juror as impartiality is not a technical

question but a state of mind. ” 50

1. Juror 277.

Juror 277 stated that she had been raped between 2000 and 2001 when

she was 17 years old. When asked why the perpetrator had never been

charged, Juror 277 paused, began to cry, and explained that she never

reported the rape because she was only 17 at the time and was not supposed

45 Little v. Commonwealth, 422 S.W.3d 238, 242 (Ky. 2013).

46 Brown v. Commonwealth, 313 S.W.3d 577, 598 (Ky. 2010) (citing Woodall v.

Commonwealth, 63 S.W.3d 104 (Ky. 2001); Hodge v. Commonwealth, 17 S.W.3d 824

(Ky. 2000); Sanders v. Commonwealth, 801 S.W.2d 655 (Ky. 1990)).

47 Brown, 313 S.W. 3d at 598.

48 Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky. 1991).

49 Id. (citing Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky. 1958))

50 Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007) (emphasis added).

24to be at the place where the crime occurred. When the prosecutor asked Juror

277 if she would be able to put aside her experiences and focus only on the

facts of this case, she said “ I would really like to think, that as a mother and as

a woman that it would be an honor and a duty to do that, knowing the

statistics of unreported abuse and rape, that ’ s what I am sitting back in my

bench evaluating. ”

The prosecutor then asked Juror Til if she had done research on

statistics regarding sexual abuse, and she said “ yes, and I was a social worker

for a while. ” When pressed further by the prosecutor as to whether she could

be a “ neutral juror, and not form any opinions until everything is done and

over with, ” Juror Til sighed and paused for 16 seconds on the record,

appearing to fight back tears, and finally stated “ I believe so, I believe I can do

it. ”

When Ward ’ s attorney asked if she would lean even the slightest bit

toward a guilty verdict based upon her experience and not the facts, Juror 277

said “ No because a couple reasons is that particularly what

. . . happened to

myself if I were in his shoes, so I think flipping the perspective helps. Two, I

could never even pick that person out of a lineup to this day

... I have moved

on with my life, I ’ m a warrior and I ’ m not a victim and I think that

. . . that

speaks volumes to my ability to look at the case objectively and to say ‘ hey, you

know sometimes things happen but sometimes things don ’ t happen. ’ ”

The prosecutor said he thought Juror 277 was qualified, focusing on the

juror ’ s claims that she could be impartial. After Ward ’ s attorney made a motion

to strike for cause, the trial court denied the motion without explanation.

25Though we acknowledge that the decision to strike a juror for cause in

the face of the juror ’ s claims that she could look objectively at the case is a

difficult one, this Court is constrained to conclude that the trial court

nevertheless abused its discretion in not striking Juror 277 for cause. The

totality of the circumstances indicates that there was reasonable ground to

believe that Juror 277 could not render a fair and impartial verdict on the

evidence. Despite the rape occurring some sixteen years before this case and

the fact that she had “ moved on with [her] life, ” it was apparent from Juror

277 ’ s demeanor in answering defense counsel and the Commonwealth ’ s

questions that she had suffered a significant degree of trauma. Juror 277

initially stated that she “ would really like to think ” that she would be able to

set aside her experiences and focus only on the facts of the case, but she then

stated that she was still “ evaluating ” that. And, even though she eventually told

the prosecutor that she “ believe[d] ” that she could be a neutral juror, it was

only after a significant pause and sigh and several moments of holding back

tears.

From our careful review of the record, we conclude that the combination

of Juror 277 ’ s demeanor and answers to the individual voir dire questions,

coupled with the fact that the juror suffered a similar sexual offense crime as

alleged by the victim in this case, should have prompted in the trial court a

reasonable ground to believe that Juror 277 would not have been able to

render an impartial verdict. While we commend Juror 277 ’ s candor and effort

to participate in our justice system as an impartial juror, we cannot hold that

allowing her on the jury would not infringe on Ward ’ s guaranteed right to an

impartial jury.

26“ The question then is whether the trial court's erroneous failure to grant

the for-cause strike is a reversible error. ” 51 As previously stated, “ ordinarily,

such an error affects a substantial right of a defendant and is presumed

prejudicial. ” 52 “ However, such an error 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. ” 53 In that scenario, the error is “ effectively cured ”

and the defendant ’ s substantive rights are ultimately not violated because he

“ received the ju r

y he wanted. ” 54

But this exception is not applicable in this case because one of the jurors

that Ward ’ s attorney would have struck

— Juror 153

— did in fact sit on the jury

and deliberate. So the presumption of prejudice stemming from the trial court ’ s

failure to grant Ward ’ s motion to strike for cause Juror 277 has not been

refuted. Accordingly, Ward ’ s conviction must be reversed. 55

Though Ward ’ s conviction is being reversed, we find it necessary to

address other alleged errors as they are likely to recur on remand.

C. Reversible error did not occur from the trial court ’ s denial of Ward ’ s

motion to suppress.

Ward next argues that the trial court erred in denying Ward ’ s motion to

suppress evidence recovered by officers at the Ward residence in response to

51 Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009).

52 Id. (quoting Shane, 243 S.W.3d at 341) (quotation marks omitted).

53 Id. (citing King v. Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009)).

54 King, 276 S.W.3d at 279.

55 Because we find that Ward ’ s conviction must be reversed based on the trial court ’ s

failure to strike Juror Til

, we do not address whether the trial court erred in denying

Ward ’ s motion to strike Jurors 238 and 183.

27Ward ’ s statement during a recorded phone call with Cindy that he was going to

burn the house down. That this issue is preserved for our review is undisputed

As described earlier, after Cindy caught Ward livestreaming with the

victim while the victim displayed herself naked, Cindy notified authorities.

Authorities set up a controlled call between Cindy and Ward. During that call,

Ward stated that he was going to burn his house down. In response to that

statement, authorities were dispatched to the Ward residence to prevent Ward

from destroying potential evidence. One officer stayed behind to obtain a

search warrant.

Officers arrived at the Ward residence and attempted to contact Ward by

knocking on the door, ringing the doorbell, and calling Ward ’ s phone. Ward did

not open the door for several minutes, but finally did so. The testifying officer

could not recall whether the officers asked for permission to enter the Ward

residence before doing so. When the officers entered the residence, they patted

Ward down and discovered his cell phone. The officers asked Ward whether

they could take his cell phone, to which Ward responded in the affirmative. An

officer put Ward ’ s cell phone in airplane mode, later explaining that authorities

put cell phones in airplane mode to prevent a defendant from remotely wiping

out any incriminating information on them. The officer then told Ward that

they should all go have a seat so that the officers could explain the purpose of

their presence.

An officer escorted Ward to the kitchen area where he informed Ward of

the allegations against him and read Ward his Miranda 56 rights, but explicitly

56 Miranda v. Arizona, 384 U.S. 436 (1966).

28stated that Ward was not under arrest. While that occurred, other officers

conducted a sweep of the house. After several minutes, Ward asked to leave in

his car. An officer told Ward that he was free to leave but, suspecting potential

evidence inside Ward ’ s truck, that someone would have to pick him up or he

could leave on foot. The officer then told Ward he could leave in his truck if

Ward consented to the officers ’ search of the truck. Ward agreed, the officers

searched the truck, and Ward left shortly thereafter.

Before Ward left, however, one of the officers had gone to get Ward a

shirt and his wallet. While doing so, the officer saw a cell phone in plain view

and gave it to another officer who, after Ward left the residence, put it in

airplane mode and then placed the phone where it had been found. Officers

found a third phone and put that one on airplane mode, as well. The officers

testified that they did not take any photos, examine any devices, or open any

drawers or other enclosures before the arrival of the search warrant. Once the

warrant arrived, the officers conducted a full search of the Ward residence,

seizing various electronic devices.

“ In reviewing a trial court ’ s ruling on a motion to suppress evidence, the

reviewing court must first determine whether the trial court ’ s findings of fact

are supported by substantial evidence. If so, those findings are conclusive. The

reviewing court then must conduct a de novo review of the trial court ’ s

application of the law to those facts. ” 57

57 Epps v. Commonwealth, 295 S.W.3d 807, 809 (Ky. 2009) (overruled on other grounds

by Davis v. Comm, 484 S.W.3d 288 (Ky. 2016)) (citing Ornelas v. U.S., 517 U.S. 690,

697 (1996); U.S. v. Martin, 289 F.3d 392, 396 (6th Cir. 2002); Adcock v.

Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998)).

29Ward challenges the constitutionality of essentially all the officers ’

actions before obtaining a search warrant. But even if we were to agree with

Ward that the trial court erred in denying his motion to suppress, we can say

with assurance that the trial court ’ s purported error was harmless beyond a

reasonable doubt.

“ No error in

. . . the admission

... of evidence

... 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. ” 58 “ The court at

every stage of the proceeding must disregard any error or defect in the

proceeding that does not affect the substantial rights of the parties. ” 59 “ [T]he

inquiry is not simply ‘ whether there was enough [evidence] to support the

result, apart from the phase affected by the error. It is rather, even so, whether

the error itself had substantial influence. If so, or if one is left in grave doubt,

the conviction cannot stand. ” 60 “ As to those preserved constitutional errors

which are subject to harmless error review, they must be shown to be

‘ harmless beyond a reasonable doubt ’ to be deemed harmless. ” 61 “ It is well

settled that constitutional search and seizure violations are not structural

58 Kentucky Rules of Criminal Procedure ( “ RCr ” ) 9.24.

59 Id.

60 Murray v. Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)).

61 Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010) (quoting Kotteakos, 328

U.S. at 765).

30improprieties requiring reversal, but rather, are subject to harmless error

analysis. ” 62

While Ward ’ s argument is well-taken, Ward has not articulated how he

was prejudiced by the trial court ’ s denial of his motion. Ward has not pointed

to any specific evidence discovered by the police during this sweep that the

Commonwealth used against him at trial. Based on the officers ’ testimony, it

appears that the only evidence recovered by the officers during their

questionable searches and seizures was one or two cell phones, in addition to

the cell phone that officers obtained when patting down Ward in their initial

encounter with him. Yet Ward has not explained how the admission into

evidence of the cell phones or any of their contents, or any other electronic

devices or their contents that may have been seized before the obtaining of the

search warrant, harmed him during his trial. In sum, Ward has not articulated

any incriminating evidence recovered or potentially recovered during any of the

purported unconstitutional searches and seizures that the Commonwealth

used against him at trial, so we must conclude that any purported error

committed by the trial court in denying Ward ’ s motion to suppress was

harmless error beyond a reasonable doubt.

D. The trial court did not err in refusing to admit a social worker ’ s

conclusions about the victim ’ s credibility stemming from past allegations

of sexual abuse.

Ward argues that the trial court erroneously excluded from evidence

accusations by the victim that her brother sexually abused her. That this issue

is preserved for our review is undisputed.

62 State v. Esarey, 67 A.3d 1001, 1009 (Conn. 2013) (internal citations omitted).

31Two witnesses, a detective and a social worker, testified concerning the

victim ’ s prior allegations against her brother. Both witnesses investigated

claims by the victim that the victim ’ s brother “ put toys in [the victim ’ s] rear

end, ” “ tried to rape [the victim], ” attempted to see the victim naked, and played

a game with the victim where he would touch the victim over her clothes,

simulate sexual intercourse on her, and touch her private area. The detective

testified that she believed the allegations to be true but non-criminal in nature,

so she closed her investigation. The social worker testified that she was “ unable

to substantiate ” the victim ’ s claims and closed the investigation. However, the

social worker testified that “ unable to substantiate ” did not mean that the

allegations were false

— it simply meant that there was no basis for continuing

the investigation.

Kentucky Rules of Evidence ( “ KRE ” ) 412(a) prohibits “ in any

. . . criminal

proceeding involving alleged sexual misconduct

. . . [e]vidence offered to prove

that any alleged victim engaged in other sexual behavior [and] [e]vidence

offered to prove any alleged victim ’ s sexual predisposition. ” But “ [o]n its face,

KRE 412(a) does not apply to evidence that a witness has made prior false

accusations of sexual abuse. ” 63 “ [EJvidence, including cross-examination,

concerning an alleged sex-crime victim ’ s allegations of sexual impropriety

against another is not admissible at trial unless the proponent of the evidence

establishes at a KRE 104 hearing that the prior accusation was demonstrably

63 Perry v. Commonwealth, 390 S.W.3d 122, 129 (Ky. 2012) (emphasis in original).

32false. ” 64 “ To meet that standard, the proponent must show that there is a

distinct and substantial probability that the prior accusation was false. ” 65

“ The standard of review of an evidentiary ruling is abuse of discretion. ” 66

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

arbitrary, unreasonable, unfair, or unsupported by sound legal principles. ” 67

After review of the record, we cannot say that the trial court abused its

discretion when excluding from evidence testimony regarding the victim ’ s prior

allegations of sexual misconduct made against her brother. The investigating

detective testified that she believed the victim ’ s accusations to be true. The

investigating social worker testified that her concluding that she was “ unable to

substantiate ” the victim ’ s claims is different from concluding that they were

false. The sum of the witnesses ’ testimony leans toward supporting a

conclusion that there is more truth in the victim ’ s allegations than not.

Therefore, the trial court did not act arbitrarily, unreasonably, or unfairly in

believing that there was not “ a distinct and substantial probability that the

prior accusation was false. ” 68 The trial court did not abuse its discretion in

excluding the victim ’ s allegations from evidence.

E. Ward ’ s Unanimity Challenges.

Finally, Ward argues that he was denied a unanimous verdict on several

of his convictions and requests palpable error review of this issue, conceding

64 Dennis v. Commonwealth, 306 S.W.3d 466, 475 (Ky. 2010).

65 id.

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

67 Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

68 Dennis, 306 S.W.3d at 475.

33that it was unpreserved. Having reversed and remanded Ward ’ s case for a new

trial because of the trial court ’ s failure to strike a juror for cause, we decline to

address errors stemming from the jury instructions. But we note that this

Court has held in several cases that “ a general jury verdict based on an

instruction including two or more separate instances of a criminal offense,

whether explicitly stated in the instruction or based on the proof

— violates the

requirement of a unanimous verdict. ” 69 On remand, all jury instructions must

be more carefully crafted to comply with our requirements set out in these

cases.

I. CONCLUSION.

For the foregoing reasons, the judgment is reversed, and the case is

remanded to the trial court for further proceedings in conformity with this

opinion.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Shannon Renee Dupree

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Micah Brandon Roberts

Assistant Attorney General

69 Johnson v. Commonwealth, 405 S.W.3d 439, 449 (Ky. 2013). See also Kingrey v.

Commonwealth, 396 S.W.3d 824 (Ky. 2013); Martin v. Commonwealth, 456 S.W.3d 1

(Ky. 2015); Ruiz v. Commonwealth, 471 S.W.3d 675 (Ky. 2015); and Jenkins v.

Commonwealth, 496 S.W.3d 435 (Ky. 2016).

34