RENDERED: JUNE 15, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0120-MR
ALEX RYAN PAYNE APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT V. HONORABLE LISA P. JONES, JUDGE NO. 19-CR-00834
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
Alex Ryan Payne was convicted in Daviess Circuit Court of twelve counts
of possession of matter portraying a sexual performance by a minor; six counts
of use of a minor in a sexual performance with a victim under age sixteen; and
one count of use of minor in a sexual performance with a victim under age
eighteen. He was sentenced to a total of seventy years’ imprisonment and
appeals to this Court as a matter of right.1 Payne asserts the trial court erred
by: (1) denying his motion to suppress evidence obtained from the seizure of
his cellphone and passcode; and (2) incorrectly instructing the jury regarding
its discretion to recommend consecutive and concurrent sentences. After a
careful review, we affirm.
1 Ky. Const. § 110(2)(b). In 2012, when Payne was twenty-three years of age, he met T.K., who
was then twelve years of age, on Facebook. Payne initially posed as a fifteen-
year-old boy. T.K. discovered Payne was not fifteen years of age when he sent
her a photo of himself. Payne eventually requested nude photos from T.K.,
which she provided. He would also send explicit photos of himself. They
remained in contact online and over the phone for two years until T.K. broke off
contact with Payne.
T.K. later resumed contact with Payne when she was seventeen years of
age because Payne had begun communicating with her younger sister. Payne
asked T.K. if they could meet so that T.K. could perform oral sex on him. T.K.
complied, believing Payne would expose their prior relationship if she did not
agree. Payne and T.K. met several other times and engaged in oral and
penetrative sex. During one of these encounters, Payne recorded T.K.
performing oral sex on him, without her knowledge.
Payne began to stalk and harass T.K. After T.K. again cut off contact
with Payne, Payne sent nude pictures of T.K. to her boyfriend and created a
fake Facebook account using a photograph of T.K. performing oral sex as the
profile picture. Following this incident, T.K. reported Payne to the police.
Based on information provided by T.K. and additional investigation,
Detective Brad Youngman obtained a warrant to search the residence of
Payne’s mother. During the search, Det. Youngman seized one of Payne’s
cellphones. Det. Youngman also coordinated with Indiana law enforcement
officers who obtained a warrant to search the residence of Payne’s girlfriend,
2 Payne’s vehicles, and his electronic devices. The Indiana warrant did not
authorize the search of Payne’s person.
Indiana State Police Det. Brock Werne and another detective located
Payne at his workplace in Perry County, Indiana. Det. Werne did not mention
the search warrant and asked Payne to turn over his cellphone and password.
Payne voluntarily agreed. A forensic search of Payne’s two cellphones revealed
sexually explicit material containing minors.
Det. Youngman identified one of the girls, A.D., who in turn identified
M.W. Payne began contacting A.D. when she was fourteen years old and M.W.
when she was twelve years old. As with T.K., Payne initially posed as a
teenager. He eventually requested that each of the girls take off their shirts
while talking to him online and they complied. Det. Youngman identified six
photographs of another victim, S.B., who was ten years old. In this instance,
Payne pretended to be a twelve-year old boy and requested that S.B. send him
nude photos. Unfortunately, Det. Youngman was unable to identify another
young girl who appeared in ten explicit photographs found on Payne’s
cellphone.
Payne was indicted on twelve counts of possession of matter portraying a
sexual performance by a minor; six counts of use of a minor in a sexual
performance with a victim under 16 years of age; and one count of use of a
minor in a sexual performance with a victim under 18 years of age. Prior to
trial, Payne filed a motion to suppress the evidence obtained from the search of
his cellphones, which the trial court denied. Following trial, the jury convicted
3 Payne on all charges. The trial court imposed a total sentence of seventy years’
imprisonment. This appeal followed.
Payne first argues the trial court erred by denying his motion to suppress
the evidence obtained from his cellphone. Specifically, he argues that he did
not voluntarily consent to provide his cellphone and password to law
enforcement. We disagree.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” All warrantless searches are unreasonable, per se, under the Fourth
Amendment unless an established exception applies. Commonwealth v.
Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). Consent is a valid exception to the
warrant requirement under the Fourth Amendment. Commonwealth v. Neal,
84 S.W.3d 920, 923 (Ky. App. 2002). The Commonwealth bears the burden of
satisfying the requirements of a claimed exception. Id. “Whether a consent to
search was voluntarily given is a question of fact to be determined by a
preponderance of the evidence from the totality of all the circumstances.” Id. at
925 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998)).
We review a trial court’s decision on a motion to suppress on two levels.
Id. at 923. First, we must “determine whether the trial court’s findings of fact
are supported by substantial evidence.” Id. If so, they are conclusive. Id.
Second, we must “conduct a de novo review of the trial court’s application of
the law to those facts to determine whether its decision is correct as a matter of
law.” Id.
4 The trial court entered detailed findings of fact. In cooperation with
Kentucky authorities, Det. Werne obtained a search warrant from the
magistrate of Perry County, Indiana, to search and seize any “computers or
electronic devices,” belonging to Payne, including cellular phones. The warrant
authorized Det. Werne to search the residence of Payne’s girlfriend, and the
three vehicles registered to Payne. The Indiana warrant did not authorize the
search of Payne’s person.
Det. Werne located Payne at his place of employment in Perry County,
Indiana. Det. Werne and another detective were dressed in plain clothes. The
trial court described the encounter that followed:
They identified themselves as law enforcement and asked at the office if they could speak with [Payne] who subsequently joined them in a private room. The Defendant was not placed under arrest. No guns were drawn. No voices were raised. No mention was made of the search warrant. [Det.] Werne asked [Payne] for his cell phone and password, and [Payne] willingly provided the device and information then requested an attorney. . . . There was no show of force. [Payne] was not in custody.
After Payne voluntarily produced his cellphone and password, Det. Werne
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RENDERED: JUNE 15, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0120-MR
ALEX RYAN PAYNE APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT V. HONORABLE LISA P. JONES, JUDGE NO. 19-CR-00834
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
Alex Ryan Payne was convicted in Daviess Circuit Court of twelve counts
of possession of matter portraying a sexual performance by a minor; six counts
of use of a minor in a sexual performance with a victim under age sixteen; and
one count of use of minor in a sexual performance with a victim under age
eighteen. He was sentenced to a total of seventy years’ imprisonment and
appeals to this Court as a matter of right.1 Payne asserts the trial court erred
by: (1) denying his motion to suppress evidence obtained from the seizure of
his cellphone and passcode; and (2) incorrectly instructing the jury regarding
its discretion to recommend consecutive and concurrent sentences. After a
careful review, we affirm.
1 Ky. Const. § 110(2)(b). In 2012, when Payne was twenty-three years of age, he met T.K., who
was then twelve years of age, on Facebook. Payne initially posed as a fifteen-
year-old boy. T.K. discovered Payne was not fifteen years of age when he sent
her a photo of himself. Payne eventually requested nude photos from T.K.,
which she provided. He would also send explicit photos of himself. They
remained in contact online and over the phone for two years until T.K. broke off
contact with Payne.
T.K. later resumed contact with Payne when she was seventeen years of
age because Payne had begun communicating with her younger sister. Payne
asked T.K. if they could meet so that T.K. could perform oral sex on him. T.K.
complied, believing Payne would expose their prior relationship if she did not
agree. Payne and T.K. met several other times and engaged in oral and
penetrative sex. During one of these encounters, Payne recorded T.K.
performing oral sex on him, without her knowledge.
Payne began to stalk and harass T.K. After T.K. again cut off contact
with Payne, Payne sent nude pictures of T.K. to her boyfriend and created a
fake Facebook account using a photograph of T.K. performing oral sex as the
profile picture. Following this incident, T.K. reported Payne to the police.
Based on information provided by T.K. and additional investigation,
Detective Brad Youngman obtained a warrant to search the residence of
Payne’s mother. During the search, Det. Youngman seized one of Payne’s
cellphones. Det. Youngman also coordinated with Indiana law enforcement
officers who obtained a warrant to search the residence of Payne’s girlfriend,
2 Payne’s vehicles, and his electronic devices. The Indiana warrant did not
authorize the search of Payne’s person.
Indiana State Police Det. Brock Werne and another detective located
Payne at his workplace in Perry County, Indiana. Det. Werne did not mention
the search warrant and asked Payne to turn over his cellphone and password.
Payne voluntarily agreed. A forensic search of Payne’s two cellphones revealed
sexually explicit material containing minors.
Det. Youngman identified one of the girls, A.D., who in turn identified
M.W. Payne began contacting A.D. when she was fourteen years old and M.W.
when she was twelve years old. As with T.K., Payne initially posed as a
teenager. He eventually requested that each of the girls take off their shirts
while talking to him online and they complied. Det. Youngman identified six
photographs of another victim, S.B., who was ten years old. In this instance,
Payne pretended to be a twelve-year old boy and requested that S.B. send him
nude photos. Unfortunately, Det. Youngman was unable to identify another
young girl who appeared in ten explicit photographs found on Payne’s
cellphone.
Payne was indicted on twelve counts of possession of matter portraying a
sexual performance by a minor; six counts of use of a minor in a sexual
performance with a victim under 16 years of age; and one count of use of a
minor in a sexual performance with a victim under 18 years of age. Prior to
trial, Payne filed a motion to suppress the evidence obtained from the search of
his cellphones, which the trial court denied. Following trial, the jury convicted
3 Payne on all charges. The trial court imposed a total sentence of seventy years’
imprisonment. This appeal followed.
Payne first argues the trial court erred by denying his motion to suppress
the evidence obtained from his cellphone. Specifically, he argues that he did
not voluntarily consent to provide his cellphone and password to law
enforcement. We disagree.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” All warrantless searches are unreasonable, per se, under the Fourth
Amendment unless an established exception applies. Commonwealth v.
Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). Consent is a valid exception to the
warrant requirement under the Fourth Amendment. Commonwealth v. Neal,
84 S.W.3d 920, 923 (Ky. App. 2002). The Commonwealth bears the burden of
satisfying the requirements of a claimed exception. Id. “Whether a consent to
search was voluntarily given is a question of fact to be determined by a
preponderance of the evidence from the totality of all the circumstances.” Id. at
925 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998)).
We review a trial court’s decision on a motion to suppress on two levels.
Id. at 923. First, we must “determine whether the trial court’s findings of fact
are supported by substantial evidence.” Id. If so, they are conclusive. Id.
Second, we must “conduct a de novo review of the trial court’s application of
the law to those facts to determine whether its decision is correct as a matter of
law.” Id.
4 The trial court entered detailed findings of fact. In cooperation with
Kentucky authorities, Det. Werne obtained a search warrant from the
magistrate of Perry County, Indiana, to search and seize any “computers or
electronic devices,” belonging to Payne, including cellular phones. The warrant
authorized Det. Werne to search the residence of Payne’s girlfriend, and the
three vehicles registered to Payne. The Indiana warrant did not authorize the
search of Payne’s person.
Det. Werne located Payne at his place of employment in Perry County,
Indiana. Det. Werne and another detective were dressed in plain clothes. The
trial court described the encounter that followed:
They identified themselves as law enforcement and asked at the office if they could speak with [Payne] who subsequently joined them in a private room. The Defendant was not placed under arrest. No guns were drawn. No voices were raised. No mention was made of the search warrant. [Det.] Werne asked [Payne] for his cell phone and password, and [Payne] willingly provided the device and information then requested an attorney. . . . There was no show of force. [Payne] was not in custody.
After Payne voluntarily produced his cellphone and password, Det. Werne
informed Payne that he had a search warrant.
Payne now attempts to recast his voluntary consent as the product of
coercion by show of authority and deception. Contrary to Payne’s contention
that Det. Werne “insisted” that Payne turn over his cellphone, Det. Werne
testified that he simply asked for it and Payne willingly complied. Payne has
not pointed out any evidence of record to controvert the trial court’s factual
findings. He simply asks this Court to substitute our view of the evidence for
that of the trial court. This is not the function of an appellate court. Hampton 5 v. Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007). We have reviewed the
record and determined the trial court’s findings of fact were supported by
substantial evidence.
Payne attempts to liken his situation to United States v. Mendenhall, 446
U.S. 544, 552 (1980). In Mendenhall, the Supreme Court identified several
factors to determine whether the seizure of a person has occurred, such that
consent may be deemed involuntary: “the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id. at 555. None of
these factors are present here. We cannot conclude the trial court erred by
denying Payne’s motion to suppress.
Payne next argues the trial court improperly instructed the jury
concerning their discretion to recommend consecutive or concurrent sentences
because it was not informed of the effect of KRS 532.110(1)(d). He concedes
this error was not properly preserved for review and requests palpable error
review.
RCr2 10.26 authorizes an appellate court to review an unpreserved error
as follows:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
2 Kentucky Rules of Criminal Procedure.
6 A palpable error is “easily perceptible, plain, obvious, and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To demonstrate
manifest injustice, a party must show the “probability of a different result or
error so fundamental as to threaten a defendant’s entitlement to due process of
law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). In other words, a
palpable error occurs where “the defect in the proceeding was shocking or
jurisprudentially intolerable.” Id. at 4.
The jury initially recommended a total of sentence of seventeen years’
imprisonment which was structured as follows:
• Count 1— possession of matter portraying a sexual performance by a minor relating to victim, M.W. Class D felony. The jury recommended a sentence of one year.
• Count 2— possession of matter portraying a sexual performance by a minor relating to victim, A.D. Class D felony. The jury recommended a sentence of one year.
• Counts 3-8—use of a minor in a sexual performance, victim less than sixteen years of age—relating to S.B. Class B felony. The jury recommended a sentence of ten years on each count.
• Count 9—use of a minor in a sexual performance victim less than sixteen years of age—relating to victim, T.K. Class C felony. The jury recommended a sentence of five years.
• Counts 10-19—possession of matter portraying a sexual performance by a minor relating to an unidentified victim. Class D felony. The jury recommended a sentence of one year for each count.
The jury further recommended each one-year sentence under counts 1,
2, and 10-19 run consecutively for a total of twelve years, to be run
consecutively with the five-year sentence imposed under count 9. The
7 jury further recommended each ten-year sentence under counts 3-8 run
concurrently with the other sentences for a total, combined sentence of
seventeen years’ imprisonment.
Before final sentence was imposed, defense counsel informed the trial
court that the jury’s recommendation that counts 3-8 run concurrently with
the other sentences did not comply with KRS 532.110(1)(d), which requires
multiple sentences against multiple victims to run consecutively.
Subsequently, the trial court notified the parties that it may deviate from the
jury’s recommendation as to whether the sentences be run consecutively or
concurrently. The trial court further instructed the parties to present
arguments concerning whether the sentences should run consecutively or
concurrently.
Prior to the final sentencing hearing, the trial court conducted a
conference in chambers and informed the parties it needed additional time to
review the applicable sentencing statutes, particularly KRS 532.110(1)(d), and
caselaw. The trial court then continued the final sentencing. After the final
sentencing hearing, the trial court ultimately concluded it was required to run
each of Payne’s individual sentences consecutively under KRS 532.110(1)(d) for
a total of seventy-seven years’ imprisonment, which it then reduced to seventy-
years under the statutory cap contained in KRS 532.110(1)(c).
As a general matter, a trial court has the discretion to determine whether
multiple sentences should run consecutively or concurrently. KRS 532.110(1).
This discretion includes the authority to deviate from a jury’s recommendation
8 on consecutive or concurrent sentences. Jones v. Commonwealth, 833 S.W.2d
839, 842 (Ky. 1992). KRS 532.110(1)(d) is an exception to the general rule and
provides “[t]he sentences of a defendant convicted of two (2) or more felony sex
crimes, as defined in KRS 17.500, involving two (2) or more victims shall run
consecutively.” This Court has specifically held that the purpose KRS
532.110(1)(d) is “to remove judicial discretion when sentencing sex offenses
generally by requiring that the sentences be run consecutively.”
Commonwealth v. Stambaugh, 327 S.W.3d 435, 438 (Ky. 2010).
Payne argues that, while KRS 532.110(1)(d) requires the multiple
sentences involving multiple victims to be run consecutively, it allows for
multiple sentences involving the same victim to be run concurrently.
Specifically, Payne argues his sentences for offenses against S.B. could have
been run concurrently to each other, but consecutively to the sentences
imposed for offenses against A.D., M.W., and T.K. This formula would have
resulted in a recommended sentence of eighteen years’ imprisonment.
However, our decision in Stambaugh forecloses Payne’s argument.
Before addressing Stambaugh, we note Payne’s citation to the
unpublished decision of the Court of Appeals in Johnson v. Commonwealth, No.
2016-CA-000421-MR, 2018 WL 1779365 (Ky. App. April 13, 2018). In
Johnson, the defendant was found guilty of multiple counts of sexual abuse
involving two victims. Id. at *2. The trial court determined the sentence
imposed on multiple counts involving Victim 1 were to run concurrently with
each other, but consecutive to the sentences imposed on multiple counts
9 involving Victim 2. Id. We are not persuaded by the unpublished Johnson
decision because our published decision in Stambaugh speaks directly to the
issue. Further, the propriety of the defendant’s sentence was not at issue in
Johnson—so the Court of Appeals did not address it. Id.
In Stambaugh, the defendant was charged with four counts of sexual
abuse relating to three separate victims. 327 S.W.3d at 436. The jury
recommended each count run consecutively for a total sentence of forty years’
imprisonment. Id. However, the trial court reduced the sentence to twenty
years’ imprisonment after applying the statutory cap contained in KRS
532.110(1)(c). Id. The Commonwealth appealed to determine whether the trial
court properly applied the statutory cap. Id. at 437.
We determined there was a conflict between the statutory cap in KRS
532.110(1)(c) and the requirement that sentences for multiple sexual felonies
against multiples victim be run consecutively. Id. at 438. In resolving the
conflict, we determined the cap contained in KRS 532.110(1)(c) controls over
the consecutive-sentence requirement in KRS 532.110(1)(d). Id. While the
propriety of running each of Stambaugh’s sentences was not specifically at
issue, this Court thoroughly interpreted the requirements of KRS 532.110(1)(d):
KRS 532.110(1)(d) provides, in essence, that a person convicted of two or more qualifying sexual felonies involving two or more victims must be sentenced to consecutive terms of imprisonment. There is no question that Stambaugh’s four convictions for sexual abuse in the first degree are qualifying sexual felonies for purposes of KRS 532.110(1)(d). There is also no question that Stambaugh’s crimes were committed against multiple victims, three to be exact, as is required for KRS 532.110(1)(d) to apply.
10 Id. at 437-38 (footnote omitted). Each of Stambaugh’s convictions were
required to run consecutively even though two counts related to a single victim.
Id. “It is clear, then, that the legislature intended for sentencing judges to run
sex offense sentences consecutively, but with a limit on the allowable aggregate
sentence.” Id. at 439.
We cannot conclude the trial court committed palpable error by failing to
instruct the jury as to the effect of KRS 532.110(1)(d) on its discretion to
recommend consecutive or concurrent sentences. As stated above, the purpose
of KRS 532.110(1)(d) is to eliminate judicial discretion concerning whether to
impose consecutive or concurrent sentences when a person is convicted of
multiple sexual felonies involving multiple victims. Stambaugh, 327 S.W.3d at
438. The trial court was constrained to impose consecutive sentences for each
count pursuant to KRS 532.110(1)(d) and Stambaugh. Therefore, any error in
the jury instructions was immaterial.
Accordingly, the judgment of the Daviess Circuit Court is affirmed.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, and Lambert, JJ.,
concur. Thompson, J., concurs in result only.
11 COUNSEL FOR APPELLANT:
Kayla D. Deatherage Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General