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RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0031-MR
ANTHONY ARMATO APPELLANT
ON APPEAL FROM CARROLL CIRCUIT COURT V. HONORABLE REBECCA LESLIE KNIGHT, JUDGE NO. 21-CR-00103
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT AFFIRMING
A jury found Anthony Armato guilty of one count first-degree sodomy and one count first-degree sexual abuse. Armato was sentenced to twenty years’ imprisonment and now appeals as a matter of right. KY. CONST. § 110(2)(b). On appeal, Armato alleges that he was denied a unanimous verdict and due process because Jury Instruction 6 lacked specificity, and the trial court erred in rejecting defense counsel’s request for a missing evidence instruction. We hold that Armato has failed to show that Jury Instruction 6 resulted in palpable error, and that the trial court did not commit error when denying his request for a missing evidence instruction. We affirm.
I. Background
C.G. 1 and R.G. are parents of three daughters, A.G., V.G., and B.G. The family initially lived in a trailer in Shelby County, but they subsequently moved to a cabin in Carroll County. The family’s living conditions were poor, and the children periodically went without electricity, food, and water. Because of these living conditions, the parents stopped sending the children to school, and their grandmother, P.F., homeschooled them during the week. While the children mainly stayed with their grandmother, P.F., they would visit with their parents on some weekends. Armato was connected to the family because he and the mother were friends when they were in school. They remained in touch, and Armato intermittently lived with the family between 2020 and 2022. As the parents were often not home, the children were left alone with Armato on multiple occasions.
A.G., who was born in 2007, was a thirteen-year-old girl at the time the events herein occurred. Armato was in his thirties. Armato first initiated inappropriate sexual contact with A.G. at the family trailer in Shelby County. A.G. and Armato were sitting on the couch together, and Armato instructed her sisters to move to a different couch. Armato had a blanket over A.G., and he placed his hand on her thigh. Armato only stopped when A.G.’s parents entered the room and told the children to go to bed. Armato followed A.G. to her bedroom and proceeded to get on top of her. When A.G.’s parents entered
1 To preserve anonymity, we will refer to the victim and her family members by their respective initials.
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the bedroom, Armato hid in the bathroom. On another occasion, Armato tried kissing A.G. while they were outside of the trailer.
The parents later moved to a cabin in Carrollton, Kentucky. The children still lived primarily with their grandmother, and they only went to the cabin when their parents requested that they visit. The cabin had three levels, including an upstairs loft, a main floor, and a basement. All three children slept in a three-bed bunk bed in the basement. The parents slept on the main floor. Armato slept in the upstairs loft. However, Armato would sometimes sleep in the basement when the children stayed over.
A.G. testified that Armato’s inappropriate sexual contact with her worsened once the family moved to the cabin. Armato initiated inappropriate conversations with A.G. He called A.G. his girlfriend, and he told A.G. he would buy her lingerie and perfume. He also told her that she would no longer have to live this way, referencing her poor living conditions. Furthermore, Armato told A.G. that she was his future wife and that he loved her. Armato would threaten to fight A.G.’s parents if she told her parents about his behavior. Armato often physically touched A.G. He held her hand, hugged her, kissed her, and touched her body with his hands. On various occasions, Armato would lock the other children outside of the cabin while he remained inside alone with A.G.
One night at the cabin, Armato decided to sleep in the basement with the children. He instructed A.G. to move to the bottom bunk. He then got on top of A.G and put his mouth on her breast. He began to masturbate, and he kept
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one hand on her chest as he did so. A.G. testified that “stuff” came out of his penis, and he then went to the bathroom. Subsequently, Armato went to sleep on the couch, and A.G. went to bed. That same night, Armato woke A.G. and instructed her to go to the couch. A.G. testified that Armato wanted her to place her mouth on his penis. A.G. complied and he placed his hands on A.G.’s head while this happened. A.G. testified that “stuff” came out of his penis, and it got in her mouth. She then went to the bathroom to spit it out in the sink and she went to sleep. Armato proceeded to wake A.G. again, and he instructed her to place her mouth on his penis while he sat in the reclining chair. She again complied, and he placed his hands on her head while this happened. A.G. testified that “stuff” came out of his penis. After this night, Armato continued to hug and kiss A.G., and he told her he loved her.
Later, her mother found a letter written by Armato to A.G. 2 in the cabin.
The letter reflects Armato’s professed romantic feelings toward A.G. and contains references to A.G. in a sexual context, including Armato’s expressed concern regarding with whom she might lose her virginity. A second letter written by Armato reflects his professed romantic feelings toward A.G., and it references his sexual contact with A.G. One part of the letter stated:
I told them nothing has happened. If they push you and question you hard, you need to just tell them you just like me and had a fantasy in your head, and that’s all it was. You didn’t mean it and didn’t know you could get me in trouble. I promise you won’t get in that much trouble honey. They may just call you a liar, and I’m sorry but don’t worry about saying anything unless they ask. They
2 Armato admitted to Detective Steve Goodale that he wrote the letter.
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may not just be smart and ready and defend me. I trust you baby, and I believe in you.
The grandmother gifted A.G. a tablet for Christmas in 2020, and Armato was communicating with A.G. via messaging apps on her tablet. The messages admitted into evidence demonstrate Armato messaging A.G. in February 2021. A.G. testified that Armato had also messaged her on TextNow, but he requested that they communicate on Snapchat instead of TextNow. Subsequently, A.G. made a Snapchat account with the username “Badgirl2007,” which Armato helped her come up with. During the investigation, officers received a search warrant to gather messages from both TextNow and Snapchat; however, they were only able to collect the messages from Snapchat. Several of the Snapchat messages were recovered and admitted into evidence. Snapchat messages sent to A.G. from Armato 3 again reflect Armato’s professed romantic feelings toward A.G. and contained references to A.G. in a sexual context. Among other things, the messages included explicit sexual content describing acts Armato wished to engage in with A.G. Additionally, a message sent on February 16, 2021, corroborated evidence that Armato made threats against A.G.’s parents:
Your parents and family is Gonna have to Accept and get over it and Be Happy for us. Or I swear to God when the time comes if they come for me I am not going to let them have me lol.
On February 18, 2021, A.G.’s grandmother caught Armato messaging A.G. Thereafter, her grandmother started messaging Armato using A.G.’s Snapchat
3 Armato’s Snapchat username was “Tonyg Armato gets g.”
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account. The messages included, among others, the following interaction between Armato and P.F.:
Badgirl2007: You are sick you need help[.]
Tonyg Armato gets g: I truly am sorry [P.F.] and I hope one day you all forgive me. I didn’t think anything was wrong with waiting on a possible future I don’t understand . . . [.]
Badgirl2007: You didn’t wait you actually had her go down on you and you actually sucked on her boobs you are sick[.]
Tonyg Armato gets g: What the heck? That shot [sic] was said other shit was said and it’s not true. How is that gonna happen in front of the girls and [C.G] and [R.G.]? That’s not true . . [.
.]
Badgirl2007: [A.G.] told me everything[.]
Tonyg Armato gets g: I really am sorry nanny [P.F.]. I really am.
I just believed that one day when she’s older we would have a potential magic and I meant that. And I guess I should have never said it she’s smart and ahead of her time and I didn’t think she was boy crazy.
I really believed she really liked me so I figured if she really did like me for that long then of course I would ask all of you when she was old enough. That’s all it is.
I really am sorry and I will leave all of you alone and I am truly heartbroken that you all think of this me it really breaks my heart.
Badgirl2007: [A.G.] told me bits and pieces.
I gotta go bye[.]
Tonyg Armato gets g: I’m really sorry about any of those things were said. It’s not true . . [.] I am sorry.
Didn’t mean to upset everyone and ruin everything. I’ll leave you all be[.]
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On February 26, 2021, A.G. participated in a forensic interview, and she revealed that Armato had initiated sexual contact with her. Armato was then charged with first-degree sodomy and first-degree sexual abuse. Based on the foregoing evidence, a jury found Armato guilty of both first-degree sodomy and first-degree sexual abuse.
II. Analysis
On appeal, Armato requests that this court reverse his conviction and remand for a new trial. He alleges that he was denied a unanimous verdict and due process because Jury Instruction 6 lacked specificity, and that the trial court erred in rejecting counsel’s request for a missing evidence instruction.
A. Jury Instruction 6 did not result in palpable error.
Armato alleges that he was denied a unanimous verdict and due process because Jury Instruction 6 for sodomy in the first degree lacked specificity. Jury Instruction 6 stated:
You will find the Defendant guilty of Sodomy in the First Degree if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Carroll County on or about a time period between September of 2020 and February of 2021, and before the finding of the Indictment herein, he engaged in a deviate sexual intercourse with [A.G.];
AND
B. That he did so by forcible compulsion.
Armato relies on Martin v. Commonwealth, 4 which held:
4 Herein referred to as Martin II.
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More recently, we clarified a second type of unanimous-verdict violation. In Johnson v. Commonwealth, we held that the requirement of a unanimous verdict is violated when “a general jury verdict [is] 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.” This type of unanimous-
verdict violation occurs when a jury instruction may be satisfied by multiple criminal acts by the defendant. When that is the case, and the instruction does not specify which specific act it is meant to cover, we cannot be sure that the jurors were unanimous in concluding the defendant committed a single act satisfying the instruction. Instead, the jury’s verdict only reflects their unanimous view that the defendant committed the crime, without necessarily resulting in a unanimous conclusion that the defendant committed a single criminal act beyond a reasonable doubt. Therefore, in those circumstances, the jury fails to reach a unanimous verdict.
456 S.W.3d 1, 6–7 (Ky. 2015). Armato alleges that his right to a unanimous verdict was violated because A.G. testified to multiple acts of oral sex, yet Jury Instruction 6 did not require the jury to unanimously agree on which specific act formed the basis of the conviction. Armato concedes that this issue was not preserved for appeal, and he requests palpable error review. 5 “[A] defendant cannot be convicted of a criminal offense except by a unanimous verdict.” Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (citing KY. CONST. § 7; Cannon v. Commonwealth, 163 S.W.2d 15 (Ky. 1942)); RCr 9.82(1). In Martin II, we recognized “the two archetypal unanimous-verdict violations.” 456 S.W.3d at 6. “The first type of unanimous-verdict violation occurs when multiple counts of the same offense are adjudicated in a single trial. In those situations, we have repeatedly found it a unanimous-verdict
5 Kentucky Rules of Criminal Procedure (RCr) 10.26.
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violation for a trial court to submit identical instructions to the jury.” Id. (citing Harp v. Commonwealth, 266 S.W.3d 813, 817–18 (Ky. 2008); Bell v. Commonwealth, 245 S.W.3d 739, 744 (Ky. 2008); Combs v. Commonwealth, 198 S.W.3d 574, 580 (Ky. 2006)). However, relevant to Armato’s case is the “second type of unanimous-verdict violation.” Id. As established in Johnson v. Commonwealth, 6 405 S.W.3d 439, 449 (Ky. 2013), a unanimous verdict cannot be assured where “a general jury verdict [is] 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.” Martin II, 456 S.W.3d at 6–7 (citing Johnson I, 405 S.W.3d at 449. In Johnson I, Johnson was charged and convicted under one count of first-degree criminal abuse. 405 S.W.3d at 449. However, evidence presented at trial showed two different leg fractures, and the jury instruction failed to specify which of the leg fractures the jury should have considered when determining Johnson’s guilt. Id. We noted:
While the lack of specific details in this jury instruction could not have led to confusion with another identical jury instruction, it does make it unclear what criminal act the verdict covered. As the jury was instructed, its verdict could have covered either of the fractures that were caused by abuse, since the time frame listed in the instruction included both of them. Specifically, the jury instruction described a two-month period in which the abuse allegedly occurred. But the proof in this case showed two instances of abuse—the second and third leg fractures—during that time frame. The instruction itself did not require the jury to differentiate which of the two instances was the basis of the conviction.
6 Herein referred to as Johnson I.
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Id. Ultimately, we concluded that Johnson “was deprived of her right to a unanimous verdict by the criminal abuse jury instruction.” Id. at 459.
Similarly to Johnson I, Armato was only charged with one count of first-
degree sodomy; however, A.G. testified that that Armato forced her to perform oral sex on him three separate times on the same night between September of 2020 and February of 2021. The jury returned a general verdict because the instruction did not require the jurors to agree on the specific act of oral sex that supported the conviction. We acknowledge that A.G. testified that Armato forced her to perform oral sex on him three times in one night. However, this constitutes three separate criminal acts. In Brown v. Commonwealth,
we followed the Supreme Court in applying the rule that “[a] . . .
jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of the several possible means the defendant used to commit an element of the crime.”
553 S.W.3d 826, 839 (Ky. 2018) (quoting Richardson v. United States, 526 U.S. 813, 817 (1999) (citing Schad v. Arizona, 501 U.S. 624, 631–32 (1991))). In Johnson v. Commonwealth, 7 we distinguished between multiple acts and alternative theories, “which defines how to distinguish multiple acts from a continuous course of conduct” in assessing whether jury instructions adequately ensured a unanimous verdict. 676 S.W.3d 405, 412 (Ky. 2023). “The difference between multiple, independent criminal acts and one continuous course of criminal conduct generally is ‘a sufficient break in the
7 Herein referred to as Johnson II.
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conduct and time so that the acts constituted separate and distinct offenses.’’’ Id. (citing Welborn v. Commonwealth, 157 S.W.3d 608, 612 (Ky. 2005)). “This break need only be ‘a cognizable lapse in his course of conduct during which the defendant could have reflected upon his conduct, if only momentarily, and formed the intent to commit additional acts.’” Id. (citing Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky. 2012)). A.G.’s testimony was clear that each act of oral sex was separated by a period of time when A.G. was asleep. Therefore, there was a cognizable lapse in Armato’s conduct for which he formed the intent to commit the additional acts of sodomy. Accordingly, the Commonwealth did not present two alternative theories for the preparation of one crime; it presented proof of two separate criminal acts. Based on this Court’s precedent, we hold that Jury Instruction 6 resulted in a unanimous- verdict violation because it is unclear which criminal act of sodomy the jury unanimously believed Armato committed.
We must now review whether there was palpable error. “A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon determination that manifest injustice has resulted from the error.” RCr 10.26. “That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.” Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000) (citing Jackson v. Commonwealth, 717 S.W.2d 511 (1986)). “[T]he required
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showing is 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). 8 In Johnson I, we held that “this type of error, which violates a defendant’s right to a unanimous verdict and also touches on the right to due process, is a fundamental error that is jurisprudentially intolerable[,]” and was therefore palpable error. Johnson, 405 S.W.3d at 457. In Martin II, we held that “we must conclude that all unanimous-verdict violations constitute palpable error resulting in manifest injustice.” Martin II, 456 S.W.3d at 9–10. However, those holdings in Johnson I and Martin II were overruled in Johnson II:
There is no separate category of palpable error review for “errors so fundamental as to threaten a defendant’s entitlement of due process of law.” Instead, that language is an explanation as to the “degree of prejudice” that must be demonstrated in order for a court to determine there is a “substantial possibility” a different result would have resulted but for the unpreserved error. In all cases presenting an unpreserved error regarding a unanimous jury, the court must “plumb the depths of the proceeding” and scrutinize the factual idiosyncrasies of the individual case. This includes consideration of the weight of the evidence. Only if, upon review, a court can conclude “the error is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process,” will reversal be warranted. “It should be so egregious that it jumps off the page . . . and cries out for relief.” To the extent that Johnson [I]. . . [and] Martin II . . . can be read to the contrary they are overruled.
676 S.W.3d at 417. Therefore, we must consider the weight of the evidence to determine whether the error resulted in manifest injustice.
8 Herein referred to as Martin I.
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In light of the overwhelming evidence against Armato, the error in Jury Instruction 6 did not result in manifest injustice. A.G. testified that the acts occurred during a single night, and the testimony concerning those acts was similar in nature. For whatever reason, the Commonwealth charged him with only one count. Furthermore, A.G.’s testimony was corroborated by the letters, Snapchat messages, and witness testimony admitted at trial. Therefore, it is reasonable to conclude that the jury found A.G.’s testimony regarding each occurrence to be credible. Accordingly, Armato has failed to establish palpable error. We affirm.
B. The trial court did not commit error in rejecting counsel’s request for a missing evidence instruction.
Armato asks this Court to reverse his convictions and remand his case
for a new trial with instructions to provide a missing evidence instruction. A.G. testified that she and Armato messaged on both TextNow and Snapchat. However, officers testified that they did not recover TextNow messages even though they were part of the search warrant. Only messages made through Snapchat were introduced at trial.
“[T]o preserve any error relating to the failure to give an instruction, there must be an objection in the record stating specifically the matter to which the party objects and the ground therefore.” Greene v. Commonwealth, 244 S.W.3d 128, 137 (Ky. App. 2008). This issue was preserved for appeal because Armato requested a missing evidence instruction regarding the messages sent through TextNow, and the trial court denied Armato’s request for a missing evidence instruction.
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The missing evidence rule in this case would have permitted the jury to draw an adverse inference against the Commonwealth and in favor of Armato with respect to “missing evidence” that the TextNow messages produced. See Estep v. Commonwealth, 64 S.W.3d 805, 809 (Ky. 2002). The missing evidence instruction has evolved through a series of Kentucky cases. See Johnson v. Commonwealth, 892 S.W.2d 558 (Ky. 1994); Tinsley v. Jackson, 771 S.W.2d 331 (Ky. 1989); Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988); Tamme v. Commonwealth, 759 S.W.2d 51 (Ky. 1988).
[I]n Collins v. Commonwealth 9 . . ., we adopted the view expressed in Arizona v. Youngblood 10 . . . that, absent a showing of bad faith, the Due Process Clause is not implicated by “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.”
Estep, 64 S.W.3d at 809–10. In Estep, we held:
Several principles emerge from the evolution of our case law on this subject. First, the purpose of a “missing evidence” instruction is to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence. Thus, there is no basis for an instruction permitting the jury to infer that missing evidence, if available, would be adverse to the defendant and favorable to the Commonwealth. Second, the Due Process Clause is implicated only when the failure to preserve or collect the missing evidence was intentional and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed.
Id. at 810. “When it is established that the evidence was lost due to mere negligence or inadvertence, which in effect, negates a finding of bad faith, the
9 951 S.W.2d 569 (Ky. 1997).
10 488 U.S. 51 (1988).
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missing instruction should not be given.” Ordway v. Commonwealth, 391 S.W.3d 762, 793 (Ky. 2013) (citing Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011)).
On appeal, Armato concedes that “the trial court did not err in denying [Armato’s] request for a missing-evidence instruction under the current state of the law.” Armato is unable to show that the Commonwealth acted in bad faith by not recovering the TextNow messages. However, Armato requests that we reverse his convictions and remand his case for a new trial by reexamining case law that erroneously places a heightened burden on criminal defendants when they want a missing evidence instruction. We decline to do so. Kentucky case law, consistent with United States Supreme Court precedent, 11 reflects the principle that the missing evidence rule is designed to safeguard a defendant from the Commonwealth’s bad-faith suppression or destruction of materially exculpatory evidence. Pursuant to RCr 7.24, the Commonwealth has no affirmative duty to seek out or create evidence for the defense, and the missing evidence doctrine cannot be extended to hold the Commonwealth accountable for every item of evidence it does not possess or retain. Accordingly, we decline to expand or overturn existing precedent governing missing evidence instructions.
On the merits, Armato concedes that the Commonwealth did not act in bad faith. Moreover, in light of the text messages recovered from Snapchat,
11 See Youngblood, 488 U.S. 51.
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there is no basis to conclude that the messages allegedly contained in TextNow were exculpatory because there is no indication that they would have produced evidence favorable to the defense. Therefore, we affirm.
III. Conclusion
Based on the foregoing, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Adam Meyer Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Graham Pilotte Assistant Solicitor General