RENDERED: AUGUST 24, 2017 TO BE PUBLISHED 

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2016-SC-000427-DG
PHILLIP EDMONDSON APPELLANT



### V. ON REVIEW FROM COURT OFAPPEALS
· CASE NO. 2015-CA-001198-MR UNION CIRCUIT COURT NO. 14-CR-00032
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM REVERSING AND REMANDING APPELLEE

On the evening ofJanuary 11, 2014, eleven-year-old Jessica 1 went to the SturgisYouth Center in Union County, Kentucky. Jessica was there with her mother, who was facilitating the Youth Center's concession stand. While Jessica and another child were playing airhockey, Appellant, Phillip Edmondson, offered a dollar to Jessicaifshe could score a goal. Jessica scored four separate goals during the game. Each time Appellant paid her the reward, he grabbed her buttocks. Later

### in the evening, Appellant grabbed Jessica's buttocks once more when saying goodbye. Unable to verbally communicate the prior events;Jessica created

## ·a written note on her cell phone

1 A pseudonymis beingused to protectthe victim's anonymity.describingAppellant's inappropriate touching. Jessica then showed the note to her friend while the two were still atthe Youth Center. Jessica's friend told her mother about the note, who 

### in turn told Jessica's mother. At that time, Jessica's mqther contacted law enforcement. A video from the Youth Center
was collected and, according to law enforcement,2 corroborated Jessica's claims. Appellant was subsequently indicted by a Union Circuit Court grandjury
on a single count offirst-degree sexual abuse. On June 22, 2015, Appellant
was convicted ofthe crime charged. In conformity with thejury's

. recommendation, Appellantwas sentenced to sixyears'imprisonment. Soon thereafter, Appellant filed

# amotion for a new trial pursuant to Kentucky Rule ofCriminal Procedure ("RCr") 10.02, which the trial court denied.· On July 22, 2016, the Court ofAppeals affirmed the trial court'sjudgment and sentence. Appellant's appeal now reaches this Courtbyway ofdiscretionary review. This Court granted discretionaryreview in order to address Appellant's claim thathe was denied a fair and impartialjury due to Mark Danhauer, the juryforeman, being the brother-in-lawofan Assistant Commonwealth Attorney, Mike Williamson. Originally, Mr. Williamson was assigned the case. However, due to Mr. Williamson's previous representation ofAppellant, another CommonwealthAttorney, J. Zachary Greenwell, prosecuted the case. Despite

2 While thevideo was played for thejurynumerous times during the trial, the video is notviewable from the trialrecord. Moreover,'thevideo was notprovided in the appellate record. 2'the conflict, Mr. Williamson assisted Mr. Greenwell duringjury selection. Mr.

·Williamson had no further involvement inAppellant's prosecution. Subsequent to Appellant's conviction, but before his final sentencing, defense counsel discovered Mr. Danhauer's relationship i:o Mr. Williamson. Appellant's motion for a new trial quickly followed. Our review ofAppellant's claim requires a thorough recitation ofthe voir dire proceeding. As voir dire began, the trial court commenced with conducting preliminary examination ofthe venire panel. First, the trialjudge prompted members ofthe venire panel to approac~ the bench ifthey believed they could not serve on thejury. At that time, numerous venire panelists who hada familial relationship with the parties approached the bench. Of.the venire panelists who approached, all but one, were excused for cause including, but not limited to, ironically, 

### Appellant'sbrother-in~law. Jessica's aunt, and a relative ofone ofJessica's family members were also excused. The trialjudge continued her examinationby explaining to the venire panel that, "A few folks in that group were related or knew someone involved in the case." She then asked, "Is there anyone else in the audience that feels for some reason, some pressing reason ... that has an issue with being here today?" Additional venire panel members approached the bench and explained knowledge ofthe situation. At no time did Mr. Danhauer approach the bench. The trialjudge also introduced Mr. Greenwell and asked ifanyone was related to him, to which Mr. Greenwell informed the court that his cousin was in the venire panel. Mr. Greenwell's cousin was then excused. Subsequently, Mr. Greenwell
3informed the trial court thathis friend from college, whom he dated twenty-five years prior, was also sitting on the panel. Again, neither Mr. Greenwell nor Mr. Williamson mentioned anyrelationship with Mr. Danhauer. After these preliminary questions were asked, the trialjudge introduced Mr. Williamson to the venire panel and asked the following question: Is anyone represented byMr. Williamson, orhave a relationship that we've not been made aware ofthat mightimpair their ability to be fair and impartial in this case? Ifyou'll come forward please. Ifyou feel thatyourrelationship would prohibityou from being fair and impartial. The taped recording ofthis portion ofthe record, which the Court has carefully reviewed, focuses solely onthebench. There is no indication that anyone, including Mr. Danhauer, had anyreaction to this question. In fact, the trialjudg~ went on to her next question instantaneously, without any pause orhesitation. Later during voir dire, when Mr. Greenwell took over questioning, Mr. Williamson was once again introduced to the venire panel. Mr. Williamson's wife,3 who was sitting next to Mr. Williamson at the attorney's table, was also introduced to the venire panel. Again, Mr. Danhauer's relationship to Mr. Williamson was not disclosed to the Court. On July 13, 2015, the trial courtconducted a hearing on Appellant's motion for a new trial, during which Mr. Danhauer testified. Mr. Danhauer

3 Mr. Greenwell introduced Mr. Williamson's wife as "LindaWilliamson". A Kentucky BarAssociation search of"LindaWilliamson" revealed no results. The Court isunaware ofMrs. Williamson's role in selecting thejury. 4claimed that when the trialjudge asked ifanyone was related to Mr. Williamson, he raised his hand and stood up to make his way to the bench. However, before Mr. Danhauer reached the bench he returned to his seat because the trialjudge qualified her question by stating that the relationship would need to impede thejuror's ability to make an impartial and fair decision. Consequently, Mr. Danhauer did not believe he was obligated to inform the trial court about his familial relationship with Mr. Williamson because he assumed he could still be fair and impartial. Defense counsel argued thathe had no recollection ofMr. Danhauer

. making any affirmative acknowledgmentfollowing the 

### tri?ljudge's question. Defense counselmaintained thathad he known about the relationship, he would have asked the trial courtto remove Mr. Danhauer for cause, or at the veryleast placed the matter on the record. Defense counsel also provided the trial courtwith numerous cases where a new trial was granted when thejuror falsely answered.questions, or concealed information regarding a relationship

. with a party. At the conclusion ofthe hearing, the trial court denied Appellant's motion. The trialjudge admitted that she liad nothad an·opportunityto review the record. Nonetheless, from her memory, she remembered Mr. Danhauer standing up to approach thebench following her question regarding Mr. Williamson. As the trialjudge further explained, she recalled a number of people, including Mr. Danhauer, raising their hand when asked iftheyhad a relationship with Mr. Williamson. Yet, defense counsel failed to follow-up with
5any ofthese potentialjurors. Ultimately, the trial court denied Appellant's motion since Mr. Danhauerhad not given any false answers during his voir cl.ire examination. The Court ofAppeals agreed with trial court and stated the following: Danhauer tried to disclose his relationship with Williamson. Neither.party explored his reason for initially raising his hand and beginning to approach the bench. Furthermore, Danhauerwas not the onlypotentialjuror to acknowledge having a relationship with Williamson; 

### none ofthose relationships was explored. The failure to do so rests squarelywith the parties, not with the prospective juror and notwith the trial court. (Emphasis in original). We begin our analysis by discussing the trial court and Court ofAppeals' underlying and faulty conclusion thatMr. Danhauer-and other panelistsdisclosed a relationship, or atthe very leastmade affirmative acknowledgments ofsuch. As we have already stated, when the trialjudge asked ifanyone on the venire panel had a relationship with Mr. Williamson, the onlyindividual visible
on the recording is the trialjudge. She presented her question continuously without anypauses or hesitations, indicating that the venire panel had no reactions. Indeed, the recording supports the conclusion that the venire panel remained silent. IfMr. Danhauer and otherpanelists made affirmative gestures, there is E!-bsolutely no indication of such on the record. Practically speaking, since it appears the qualifying sentence ofthejudge was stated within almost the same breath, it is unlikely Mr. Danhauer could have physicallyreacted that quickly-e.g., getup from his seat, start to move from 6the box, retreat, and sit down. Furthermore, it stands to reason that the trial judge would have, at the very least, paused orquestioned those prospective jurors further ifsuch acknowledgements.were made. She had done so with virtually every otherjurorwho previouslyindicated a relationship with the parties. Moreover, we find defense counsel's contention that he had no recollection ofMr. Danhauer making an affirmative gesture compelling. Defense counsel moved to strike numerous venire panelists who had relationships with the parties which were far less vulnerable to bias than Mr. Danhauer. Yet, during the several questions relating to relationships with the Commonwealth Attorneys, Mr. Danhauerwas never identified or questioned. Thusly, the actions ofthe trialjudge and defense counsel greatlyundermine the conclusion that defense counsel was made aware that Mr. Danhauerhad a relationship with Mr. Williamson. We now turn to the merits ofAppellant's claim. In reviewing the trial· court's denial ofAppellant's motion for a new trial, we lookfor an abuse of discretion. 

### SeeAnderson v. Commonwealth, 63 S.W.3d 135, 141 (Ky. 2001). Accordingly, this Court must determine ifthe trial court's ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. 

### Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Since Appellant did not move to strike Mr. Danhauer for cause, his grounds for a new trial were made under a juror mendacity analysis. Under this standard, a new trial may be grantedupon a showing "that ajurorfailed·to answer honestly a material
7question on 

### voirdire, and then further show that a correctresponse would have provided a valid basis for a challenge for cause."_ 

### Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (quoting 

### McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)); see 

### alsoAnderson v. Commonwealth, 864 S.W.2d 909, 911 (Ky. 1993) (reversing whenjuror "concealed vital information on voir dire, information which may havejustified
a challenge for cause in and ofitselfon grounds ofimplied bias."). This Court agrees with the trial court's conclusion thatAppellant's claim·fails under the first prong ofthejuror mendacity analysis. There has been no proofthat Mr. Danhauer purposefully concealedhis relationship with Mr. Williamson or that he failed to answer the voir dire questions honestly. As our thorough recitation ofvoir dire questioning demonstrates, Mr. Danhauer evidently believed his obligation to reveal his relationship to Mr. Williamson to the court was obviated by his personal beliefthathe could decide the case fairly. His beliefis reasonable in light ofthejuror's inexperience and the questions posed by the trialjudge. Despite our finding that thejuror mendacity analysis fails, we believe Appellant is entitled to reliefpursuant to RCr 10.26. It is apparent to this Court thatAppellant's fundamental right to a fair and impartialjurywas violated. The right to a fair and impartialjuryis guaranteed by Section Eleven ofour Kentucky Constitution, as well as the Sixth and Fourteenth · Amendments to the Constitution ofthe United States. 

### Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013) (citing 

### Fugett v. 8Commonwealth, 250 S.W.3d 604, 612 (Ky. 2008)). Providing a criminal defendant with a jury that is able to "render a fair and impartial verdict" is of utmost importance. Id. at 781. In order to protect this right, RCr 9.36(1) mandates that "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, thatjuror shall be excused as not qualified." In fact, this Court has instructed trial courts, as a "fundamental rule" ofjury selection, to "err on the side ofcaution" by strikingpotentialjurors who display uncertainty regarding impartiality. Id. at 780. In regards tojurorrelationships with the parties, this Court has identified numerous relationships where bias may be implied despite the juror's ability to remain impartial. Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985) (quoting Commonwealth v. Stamm, 429 A.2d 4, 7 (1981)} ("[I]rrespective ofthe answers given on voir dire, the court should presume the likelihood ofprejudice on the part ofthe prospectivejuror [when] the potential jurorhas such a close relationship, be it familial, financial or situational, with any ofthe parties, counsei, victims orwitnesses,"). This bias often stems "from thejuror's having some personal reason, such as a relationship with a trial participant orpersonal experience ofa crime like the one alleged, to lean one way or the other." Futrell v. Commonwealth, 471 S.W.3d 258, 272 (Ky. 2015) (citing Gabbard v. Commonwealth, 297 S.W.3d at 844 (Ky. 2009). When these close relationships are identified, thejuror should be excused for cause since he or she is "so susceptible to the relationship as·to be predisposed to be more 9(or less) critical ofone side's evidence .than the other's." 

### Futrell, 471 S.W.3d at 272. Furthermore, this Courthas long held that.a potentialjuror's close relationship .with the prosecutor is presumptively disqualifying. 

### See, e.g., Fugate v. Commonwealth, 993 S.W.2d 931, 938 (Ky. 1999) (holding that "a trial court is required to disqualify for cause prospectivejurors who had a prior professional relationship with a prosecuting attorney and who profess that they would seek such a relationship in the future."). In the case before us, we have
an established relationship where bias must be presumed. 

### Ward, 695 S.W.2d 404 (bias is presumed wherejuroris prosecutor's uncle). It is a very bothersome likelihood that Mr. Danhauer, either knowingly or subconsciously, gave more weight to the evidence presented by the Commonwealth. 'This is easily a situation wherein the familial relationship is "so apt to produce bias that even confident assurances to the.contrarybythejuror cannot erase significant doubts about his impartiality." 

### Futrell, 471 S.W.3d at 274. Thusly, Mr. Danhauerwas not qualified to sit on thejurypanel and, had the relationship been exposed, he would have been removed for cause. Since Appellant neverhad the opportunity to challenge Mr. Danhauer's presence on thejury, he is entitled to a new trial. The purpose ofvoir dire ~is to determine whether ajurorpossesses necessary qualifications, wh~ther he has prejudged the case, and whether his mind is free· from prejudice or bias, so as to enable a party to ascertain whether
cause for challenge exists and to ascertain whether it is expedient to exercise 10the right ofperemptory challenge." 

### Sizemore v. Commonwealth, 306 S.W.2d 832, 834 (Ky. 1957). Ourpredecessor Court aptly explained this principle in 

### Drury v. Franke, 57 S.W.2d 969, 984 (Ky. 1933), wherein a venireman remained silentwhen questioned about a relationship with a party. The Court stated the following: When the right ofchallenge is lost orimpaired, the statutory conditions and terms for settingup an authorizedjury are not met; the right to challenge a given number ofjurors without showing cause is one ofthe mostimportantrights to a litigant; any system for the empaneling ofajury that prevents or embarrasses the full, unrestricted exercise oftlie right ofchallenge must be condemned. In the case before us, the actions ofthe trialjudge, defense counsel, and the Commonwealth, all contributed to this constitutional error. As for the trial judge, a critical error occurred when she compounded her questions so as to only obtain affirmative answers ifthejurorbelieved he or she was unable to decide the case impartially. In doing so, Mr. Danhauer believed he was qualified to sit on thejury and not disclose the relationship. Yet, itis the trial court's evaluation, not Mr. Danhauer's, that determines ifthe proneness to bias impedes the ability to serve. We also note that defense counselhad a responsibility to uncover the relationship through his own questioning. Itis likely that the relationship would have been discovered through follow-up questioninghad defense counsel realized that the trialjudge's questions were inadequate and confusing to the

.. jurors. However, it is Mr. Williamson's silence that troubles this Court the most. As anAssistant Commonwealth Attorney, Mr. Williamson should have been aware ofthe constitutional concerns that arise from havinghis brother11in-law serve on thejury. Mr. Williamson witnessed Mr. Greenwell voluntarily disclose to the trial court the relationships he had with numerousjurors, including a cousin anda friend that he had not seen in over twenty-five years. Mr. Williamson witnessed these disclosures, yet declined to volunteer. information concerning the relationship he had with Mr. Danhauer despite countless opportunities. Such a concealment is in direct odds with our principles of justice. As the Sixth Circuit cautioned, "there is a degree of candor necessary for effective disposition ofcases in [the trial] (c]ourt[s] that counsel owes as an officer ofthe court
.... failure in this regard suggests bad faith.". 

### Cunningham v. Sears, Roebuck & Co., 854 F.2d 914, 916 (6th Cir 1988) (attorney failed to inform the court thathi~ witness knew one ofthejurors). In this situation, where reasonable steps to uncoverjurorrelationships with the parties were unsuccessful, Mr. Williamson shouldhave been forthcoming with the trial court thathis brother-in-law sat in the venire panel. We should also mention that this Courthas seen no evidence that there
was anything but a normal relationship between these two brothers-in-law. In otherwords, there was no estrangement orfissure in the relationship that would have minimized or diminished the closeness ofsuch kinship. For the above-stated reasons, we find thatAppellant was denied his constitutional right to a fair and impartialjury. Such a denial seriously affected "the fairness, integrity, (and] public reputation ofthe proceeding." 

### McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012) (quoting 

### Martin v. I
12

### Commonwealth, 207 S.W.3d 1, 3 (Ky.2006)). Consequently, Appellantis entitled to a new trial. Having determined thatreversible error occurred, we will now address those claims oferror that mayreoccur upon a new trial. Appellant alleges thatprosecutorial misconduct ensued twice during closing arguments. The first statement at issue occurred when the prosecutor analogized Jessica's actions after the abuse, including her failure to immedi~tely come forward with the allegations, to that ofvictims ofmolestation by Catholic priests. More specifically, the prosecutor said, "Why didn't she jumpup and down and scream at the top ofherlungs immediately after these things happened? I wish I had an answerfor these questions, butyou know, with the priest case[s] in the Catholic Church, it tookyears for those kids to
come forward, they still wentto Mass every Sunday." Appellant objected to the Commonwealth's remark and requested an admonition, which was summarily denied. As this Court has previouslyheld, a prosecutor "may comment on evidence, and may comment as to the falsity ofa defense position." ·

### Slaughter

u. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). The Commonwealth's short and isolated reference was made to rebutAppellant's inference that Jessica musthave fabricated the allegations due to her subsequent behavior. We do notfind reversible error, but caution bothAppellant and the Commonwealth to avoid commenting on matters outside the record upon retrial. 13Appellant's second complaintofprosecutorial misconduct occurred when the Commonwealth stated·that surveillance video showed Jessica writing a message on her cell phone regarding Appellant's actions. Appellant claims that the Commonwealth's statement was unsupported by the record. We have reviewed the evidence and agree with the trialjudge that the Commonwealth's remark was a reasonable inference based on totality ofthe evidence. 

### See Commonwealth v. Mitchell, 165 S.W.3d 129, 131-32 (Ky. 2005). The Commonwealth's commentwas within the bounds of.proper closing arguments. Lastly, as the issue will certainlyresurface on retrial, we will address Appellant's argument thatproofofsexual gratification is required to support a sexual abuse conviction. This issue was preserved by way ofAppellant's motion for a directed verdict. The Court will reverse a denial ofa motion for a directed verdict "ifunder the evidence as a whole, it would be clearlyunreasonable for ajuryto find guilt



### ... ." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing 

### Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). Sexual abuse in the first degree is proscribed in Kentucky Revised Statute ("KRS") 510.110. The statute states, in pertinent part, thatfirst-degree sexual abuse occurs when the defendant subjects a child, less than twelve years-old, to sexual contact. KRS 510.010 defines "sexual contact" as any touching ofthe sexual or other intimate parts ofa person done for the purpose ofgratifying the sexual desire ofeitherparty. Appellantposits that he was entitled to a directed verdict of

14acquittal because there was no proofthathe orJessica derived sexual gratification from the act. Appellant's argumenthas no merit. In

### Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988), it was held that "[i]ntent can be inferred from the actions o_fan accused and the surrounding circumstances." Forthat reason, "[t]hejuryhas wide latitude in inferring intentfrom the evidence. 

### /d.; see also, Tungate v. Commonwealth, 901 S.W.2d 41, 42 (Ky. 1995). Jessica testified thatAppellant showed unrelenting interestin her, commented on herfemininity, and stared at her throughout the night in question. In additioi;i, Jessica testified thatAppellant grabbed her buttocks on numerous occasions. Thusly, it was not clearlyunreasonable for thejury to find beyond a reasonable doubt thatAppellant's touching ofJessica
was done for the purpose ofsexual gratification. For the_ aforementioned, we herebyreverse the Union Circuit Court's judgment ofconviction and sentence and remand this case for further proceedings consistentwith this opinion. All sitting. All concur.

15COUNSEL FOR APPELLANT: Dax Ryan Womack WOMACK LAW OFFICE, LLC
COUNSEL FOR APPELLEE: Andy Beshear Attorney General ofKentucky Leilani K.M. Martin Assistant Attorney General

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