RENDERED: JULY 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1705-MR AND NO. 2020-CA-0719-MR
AUSTIN CHANNING MCGRAW APPELLANT
APPEALS FROM CARTER CIRCUIT COURT v. HONORABLE REBECCA K. PHILLIPS, JUDGE ACTION NO. 18-CR-00134
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Austin Channing McGraw (“Appellant”) appeals from
a judgment of the Carter Circuit Court reflecting a jury verdict of guilty on one
count each of sodomy in the first degree and sexual abuse in the first degree.1
1 Kentucky Revised Statutes (“KRS”) 510.070 and KRS 510.110. Appellant also prosecutes a separate appeal, which is consolidated herein, from an
opinion and order denying his motion for a new trial. Appellant raises several
claims of error including the improper admission of incriminating statements, the
improper failure to grant a mistrial, and the impaneling of a compromised jury.
For the reasons addressed below, we find no error and affirm the judgment on
appeal. We also affirm the trial court’s denial of Appellant’s motion for a new
trial.
FACTS AND PROCEDURAL HISTORY
On May 18, 2018, a Carter County grand jury indicted Appellant on
one count each of sodomy in the first degree and sexual abuse in the first degree.
The matter proceeded to a jury trial in Carter Circuit Court on July 16, 2019. At
trial, it was alleged that on April 1, 2018, B.B.,2 a 15-year-old female, went to
Appellant’s house to babysit Appellant’s child. Appellant was then a 24-year-old
man with a wife and young child. Appellant came home around midnight and
drove B.B. to Taco Bell in his truck. B.B. testified that Appellant stopped at an
ATM, withdrew $200, and offered it to her in exchange for a sex act. According to
B.B., she refused to perform the sex act. Upon returning to Appellant’s house,
B.B. testified that Appellant grabbed her head and shoved it toward his crotch.
B.B. again refused to perform the sex act, and testified that Appellant touched her
2 We will use B.B.’s initials because she was a minor in 2018.
-2- breasts in the truck and after entering the residence. B.B. spent the night at
Appellant’s residence, and awoke the next morning to find Appellant grabbing her
butt. B.B. stated that she told her boyfriend, C.F., and a female friend, G.F., about
what happened.
B.B. testified that about four days later, she and G.F. spent the night
at Appellant’s residence. She stated that she felt safe doing so because she
believed Appellant would not be at home. Appellant unexpectedly was at home
that night, however, and, according to B.B., he purchased alcoholic beverages and
provided them to the girls. B.B. drank to the point of intoxication.
According to B.B., after she was intoxicated, Appellant took her into
another room ostensibly to perform what he called a field sobriety test.3 B.B.
testified that Appellant tried to pull her pants down and put his penis in her vagina.
She said he also took her hand and tried to make her touch his penis, which she
refused. B.B. laid down on a weight bench and passed out from apparent alcohol
intoxication. When she awoke, Appellant allegedly had put his penis in her mouth
and his fingers in her vagina.
G.F. also testified and stated that B.B. told her about the April 2
incident. She also testified that Appellant provided alcohol to the girls and that
B.B. was highly intoxicated. G.F. further testified that Appellant repeatedly took
3 Appellant was a correctional officer at Little Sandy Correctional Complex.
-3- B.B. into the back room to perform what he called sobriety tests on her. G.F. was
concerned about Appellant’s behavior and at one point secretly used her phone to
record a short video of B.B. and Appellant. G.F. contacted B.B.’s boyfriend, C.F.,
and either G.F. or C.F. told B.B.’s mother who called the police.
A Kentucky State Police investigation followed. Detective Sam
Lawson interviewed B.B., G.F., and B.B.’s mother that night, and interviewed
Appellant at Appellant’s residence on April 6.
Appellant testified at trial and denied any wrongdoing. While
acknowledging that he was alone with B.B. in the truck on the way to Taco Bell,
Appellant denied withdrawing $200 from the ATM, and stated that he did not buy
alcohol nor provide any alcohol to B.B. Though he did not deny taking B.B. into
the room with the weight bench, he asserted that B.B. was very impressionable and
was making false allegations to get back at her boyfriend. Detective Lawson also
testified.
The matter went before the jury, which returned a verdict of guilty on
both counts. Appellant was sentenced to terms of 18 years and 5 years on the two
counts, to be served concurrently for a total sentence of 18 years in prison.
-4- Appellant’s motion for a new trial was denied, and this consolidated appeal
followed.4
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that he was prejudiced by the
introduction of multiple incriminating statements he allegedly made which were
never disclosed to the defense in conformity with the Kentucky Rules of Criminal
Procedure (“RCr”) and the circuit court’s trial order. Appellant asserts that on
June 6, 2018, the circuit court ordered the Commonwealth to produce “any oral
incriminating statement known by the attorney for the Commonwealth to have
been made by the Defendant to any witness.” According to Appellant, the
Commonwealth responded to the discovery order on June 6, 2018, and June 7,
2018, by providing six incriminating statements on April 2, 2018, purportedly
made by Appellant and to which B.B. was prepared to testify.
At trial, B.B. testified that on April 2, 2018, and while driving down
the road, Appellant stated that no one would find out if she performed the sex act,
that it would all be okay, and that B.B. should just do it. She further testified that
while sitting in the truck in the driveway, Appellant pulled B.B.’s head toward his
4 On June 1, 2020, Appellant filed a notice of appeal (No. 2020-CA-0719-MR) from the May 4, 2020 order denying his motion for a new trial. Appellant now states at footnote 23 of his written argument that he “has elected to not pursue the appeal of the order entered on May 4, 2020.” Appellant has not moved to dismiss No. 2020-CA-0719-MR, and it remains on the active docket. As such, we will briefly address it herein.
-5- crotch and said “just do it.” According to B.B., Appellant also playfully told her to
hurry up and get out of the shower, and that the more she resisted the hotter it was.
B.B. testified that sometime later, Appellant said he was sorry and would never do
it again, and asked her to promise that she would not tell anyone.
Appellant argues that these statements were never disclosed to the
defense before trial, that the failure to disclose the statements violated the court’s
disclosure order, and that the resultant improper introduction of the statements
prejudiced the proceeding against Appellant. He notes that there was no direct
evidence in this case, whether DNA, a rape kit, hair or body fluid samples,
eyewitnesses, or a confession. As such, Appellant maintains that this is a classic
“he said, she said” scenario where the entirety of the Commonwealth’s case was
based on the testimony of the accuser. Since, according to Appellant, the
Commonwealth grossly violated the disclosure order by introducing Appellant’s
incriminating statements without proper notice to the defense, Appellant was
deprived of a fair trial and is entitled to an opinion reversing the judgment on
appeal.
In response, the Commonwealth argues that Appellant did not
preserve this argument for appellate review. It notes that Appellant did not make
any objection to B.B.’s testimony at trial, and never argued before the trial court
that the statements in question were not disclosed. The Commonwealth directs our
-6- attention to RCr 7.24(11), which provides that if it is brought to the court’s
attention that a party has failed to comply with this rule or order, the court may
allow for certain remedies including the aggrieved party’s inspection of the
undisclosed materials, a continuance, or the prohibition of the undisclosed
material’s entry into evidence. The Commonwealth also argues that when
questioned about inconsistencies between her trial testimony and what she told
Detective Lawson, B.B. either did not tell Lawson those things or did not recall if
she did. As such, the Commonwealth asserts that Appellant has not shown that it
was in possession of this information prior to B.B.’s trial testimony and therefore
did not wrongfully fail to disclose it. It also argues that even if B.B. testified as to
Appellant’s incriminating statements which were not disclosed, no manifest
injustice occurred and reversal is not warranted.
Appellant has not complied with Kentucky Rules of Civil Procedure
(CR) 76.12(4)(c)(v), which requires that the appellant state at the beginning of the
written argument if the issue was preserved and, if so, in what manner.5 We are
not required to consider portions of Appellant’s brief not in conformity with CR
76.12, and may summarily affirm the trial court on the issues contained therein.
5 Appellant contends that this issue is preserved by the trial court’s discovery order. “[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation omitted). Appellant never asked the Carter Circuit Court to consider the issue of whether the Commonwealth failed to disclose all incriminating statements made by Appellant. As such, this issue is not preserved for appellate review.
-7- Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky. App. 1985). “In Elwell v. Stone, 799
S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where an
appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only
undertake an overall review of the record for manifest injustice. We believe that
principle applies as well to the failure to comply with CR 76.12(4)(c)(v).” J.M. v.
Commonwealth, Cabinet For Health and Family Services, 325 S.W.3d 901, 902
n.2 (Ky. App. 2010). As in J.M., we have chosen the less severe alternative of
reviewing the proceeding below for manifest injustice rather than summarily
affirming the decision of the trial court. “Manifest injustice is found if the error
seriously affected the fairness, integrity, or public reputation of the proceeding.”
Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (footnote, citation,
and quotation marks omitted).
The question for our consideration, then, is whether the
Commonwealth’s alleged failure to disclose all of Appellant’s incriminating
statements seriously affected the fairness, integrity, or public reputation of the
proceeding. Kingrey, supra. We must answer this question in the negative. As to
inconsistencies between what she told Detective Lawson and her trial testimony,
B.B. stated that she either did not say those things to Lawson or did not remember
saying them. This statement reasonably supports the Commonwealth’s contention
that it was not in possession of this information prior to trial. Further, the
-8- Commonwealth disclosed that B.B. was prepared to testify that Appellant asked
her to perform a sex act, that Appellant offered her $200 to perform a sex act, that
he exposed himself to her and told her to perform the act, that he asked her not to
tell anyone what happened, and that she would ruin his life if she told anyone.
These disclosures broadly encompass the entirety of B.B.’s allegations and
reasonably informed the defense as to the nature and scope of B.B.’s testimony. In
addition, an incriminating statement must be incriminating at the time it was made,
not merely in the context of testimony presented at trial. Thorpe v.
Commonwealth, 295 S.W.3d 458, 461 (Ky. App. 2009) (citation omitted). B.B.’s
testimony that Appellant playfully knocked on the bathroom door and told her to
hurry up, or whether he offered or she asked for Taco Bell, are not in themselves
incriminating outside the context of the testimony presented at trial.
Because the Commonwealth 1) apparently was not aware in advance
of many things to which B.B. testified at trial, and 2) reasonably informed
Appellant as to the nature and scope of B.B.’s testimony, including her claims as to
several incriminating statements made by Appellant, we find no error seriously
affected the fairness, integrity, or public reputation of the proceeding. Kingrey,
supra. As such, we find no manifest injustice.
Appellant next argues that the circuit court erred in failing to grant a
mistrial when the Commonwealth commented on Appellant’s invocation of his
-9- right against self-incrimination. Specifically, the jury was shown a video of
Detective Lawson interviewing Appellant, wherein Lawson stated to Appellant
that, “you didn’t want to talk about it anymore you were afraid you were going to
incriminate yourself?” Appellant, through counsel, objected to the video. After
considering the matter outside the hearing of the jury, the court admonished the
jury to disregard the offending question and not to consider any inferences arising
therefrom. The court told the jury that any inference that Appellant terminated the
interview was inaccurate. Appellant now argues that a mere admonition was not
sufficient and the circuit court erred in failing to so rule.
It is noteworthy that the offending language took the form of a
question to Appellant rather than a statement by Detective Lawson. That is to say,
Lawson asked if Appellant was afraid he was going to incriminate himself.
Lawson did not state that Appellant was afraid he was going to incriminate
himself. Further, Appellant did not invoke his right to remain silent, but rather
continued to talk – albeit not about the question he was being asked.
We may presume that an admonition to disregard evidence is
effective, and that “the admonition cures any error.” Hoppenjans v.
Commonwealth, 299 S.W.3d 290, 292 (Ky. App. 2009) (citation omitted). An
admonition is not curative when 1) there is an “overwhelming probability” that the
jury will be unable to follow the admonition, coupled with a strong likelihood that
-10- the evidence would be devastating to the defendant, or 2) where the question was
asked without a factual basis and was inflammatory or highly prejudicial.
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). We conclude that
neither of the Johnson exceptions applies herein; therefore, we hold that the
admonition was effective and cured the error.
Appellant goes on to argue that he was prejudiced by the impaneling
of a compromised jury. Specifically, he asserts that three jury pool members were
biased. One pool member acknowledged that her husband had been a victim of
sodomy as a child. A second pool member stated that her first cousin’s daughter
was sexually abused by her stepfather. A third potential juror said that his wife’s
nieces allegedly were molested by a family member. Appellant used peremptory
strikes to remove two of the individuals and the third person sat on the jury. He
argues that the circuit court erred in failing to strike all three jurors for cause.
Appellant acknowledges that this issue is not preserved for appellate
review. He argues, however, that the failure to strike the jurors for cause
constitutes palpable error sufficient to require reversal. “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 a determination that manifest injustice has
resulted from the error.” RCr 10.26. “When an appellate court engages in a
-11- palpable error review, its focus is on what happened and whether the defect is so
manifest, fundamental and unambiguous that it threatens the integrity of the
judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
The question for our consideration, then, is whether the failure to
strike the three jurors for cause was a defect so manifest, fundamental, and
unambiguous that it threatened the integrity of the judicial process. We find no
such defect. Manifest injustice has been found, for example, when the
Commonwealth and the trial judge agreed to “send a message” by sentencing a
defendant far in excess of the statutory maximum penalty. Martin v.
Commonwealth, 456 S.W.3d 1, 12 (Ky. 2015). Manifest injustice has also been
found when identical jury instructions for separate offenses potentially deprived
the defendant of his right to a unanimous verdict and to challenge the sufficiency
of the evidence on appeal. Miller v. Commonwealth, 283 S.W.3d 690, 696 (Ky.
2009). The decision of the Carter Circuit Court not to strike these three potential
jurors for cause did not threaten the integrity of the judicial process as in Martin
and Miller. All three jurors stated that they could be fair and impartial; therefore,
we find no basis for reversing the judgment of conviction on this issue.
Appellant’s fourth argument is that the trial court erred in allowing
improper expert opinion testimony to be admitted. On direct examination,
Detective Lawson was questioned as to why he did not use a sexual assault kit as
-12- part of his investigation. He answered that it was likely that any DNA from the
perpetrator in B.B.’s mouth would have been “overpowered” by her DNA given
the length of time between the alleged crime and Lawson’s investigation. Citing
Kentucky Rules of Evidence (“KRE”) 702, Appellant argues that this answer
constituted improper expert testimony requiring scientific, technical, or other
specialized knowledge. As such, Appellant contends that Lawson’s answer should
have been stricken.
Appellant again acknowledges that this issue is not preserved for
appellate review. We do not conclude that Lawson’s answer rises to the level of
error seriously affecting the fairness, integrity, or public reputation of the
proceeding. Kingrey, supra. As such, we find no manifest injustice requiring
reversal on this issue.
Appellant goes on to argue that Lawson improperly stated his opinion
that wine coolers of the type purchased by Appellant are the type of beverage
typically consumed by younger females. Appellant argues that the trial court erred
in failing to admonish the jury that the detective was not qualified to offer such an
opinion. The trial court sustained Appellant’s objection as to Lawson’s statement
about the type of alcohol purchased by Appellant, and defense counsel did not
request an admonition. “Our precedent holds that a failure to request an
admonition after an objection had been sustained means that no error occurred.”
-13- Allen v. Commonwealth, 286 S.W.3d 221, 225-26 (Ky. 2009) (footnote, citation,
and internal quotation marks omitted).
Appellant next argues that the trial court erred in allowing the
Commonwealth to make an improper opening statement. The Commonwealth’s
opening statement included references to child predators, with the Commonwealth
referring to “some individuals who are a wolf in sheep’s clothing . . . .” The
Commonwealth noted that society doesn’t know why these individuals prey on
children, and it recited the story of Dr. Johnny Bardo who was a respected member
of the community yet sexually assaulted 24 children.
Defense counsel objected more than once to the Commonwealth’s
opening statement. The first objection was overruled. After the second objection,
the trial court agreed that the Commonwealth should tell the jury about the
evidence it intended to present rather than engaging in advocacy. The focus of
Appellant’s argument is that the Rules of Criminal Procedure do not allow the
Commonwealth to imply that the Defendant has committed multiple child
molestations when such an implication is not supported by the evidence. Appellant
argues that he was entitled to a mistrial because comparing Appellant to a serial
child molester was improper and prejudicial.
The trial court sustained Appellant’s second objection and directed the
Commonwealth to “move on.” Thereafter, the Commonwealth told the jury,
-14- You’re going to hear the defense argue, why would he do this? Why would this 24 year old man, corrections officer, with a wife and baby, commit these crimes? I can’t answer that. What I can tell you is that on April 1, 2019, he attempted to have sex with a 15 year old girl in his vehicle alone.
“The attorney for the Commonwealth shall state to the jury the nature
of the charge and the evidence upon which the Commonwealth relies to support
it[.]” RCr 9.42(a). The opening statement is not evidence, and the Commonwealth
is entitled to wide latitude in its content. Wheeler v. Commonwealth, 121 S.W.3d
173, 180 (Ky. 2003) (citation omitted). After Appellant’s second objection, the
trial court directed the Commonwealth to move on to the evidence and it complied.
We find no error. Arguendo, error, if any, would be harmless as there was no
substantial possibility that the outcome of the trial could have been different but for
the error. Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006).
Appellant’s sixth argument is his contention that the trial court erred
in allowing B.B. to be referred to as “the victim” throughout the trial, thus
depriving Appellant of due process and his right to the presumption of innocence.
Appellant does not cite to the record as to if and when such references were made.
Further, this argument was not raised at trial and is not preserved for our review.
The Kentucky Supreme Court has held that children subjected to sexual abuse may
properly be referred to at trial as “victims” with no undue prejudice. Whaley v.
Commonwealth, 567 S.W.3d 576, 590 (Ky. 2019). We find no manifest injustice
-15- on this unpreserved argument, and thus no error. For the same reason, we find no
error on Appellant’s related argument that G.F. should not have been allowed to
testify that Appellant was “scary.”
Appellant’s next argument is his contention that he was prejudiced by
the admission of prior bad acts without notice. At trial, G.F. testified that
Appellant would “mess around with us a lot,” that he would frequently tickle her
and “he’d graze over stuff.” Though Appellant did not object to the “graze over
stuff” language, the trial court conducted a bench conference and asked where the
Commonwealth was going with this line of questioning because there was no
notice of Appellant’s alleged prior bad acts. Thereafter, the Commonwealth
moved on and asked G.F. no more questions about it.
We agree with the Commonwealth that this utterance was brief,
spontaneous, and was not cited by the Commonwealth as proof of Appellant’s guilt
on the underlying charges. Error on this issue, if any, was harmless.
Appellant next argues that the trial court erred in failing to grant a
directed verdict on the sodomy charge where the Commonwealth failed to prove
forcible compulsion. A person is guilty of first-degree sodomy when he engages in
sexual intercourse with another person either 1) by forcible compulsion or 2) when
the other person is incapable of consent due to physical helplessness or they are
less than 12 years old. KRS 510.070. The indictment alleged sexual intercourse
-16- by forcible compulsion based on B.B.’s claim that while laying on the weight
bench, she awoke to find Appellant “putting his penis in my mouth.” At trial, the
Commonwealth unsuccessfully sought to amend the indictment to the “physical
helplessness” element. Appellant argues that the Commonwealth failed to prove
forcible compulsion, and as such, Appellant was entitled to a directed verdict of
acquittal.
To satisfy the element of forcible compulsion, the Commonwealth
must prove that there was either actual physical force or the threat of physical
force. KRS 510.010(2). A threat of physical force may be either express or
implied, and is satisfied if the victim was in fear of any sex offense encompassed
by KRS Chapter 510 including rape, sodomy, sexual abuse, sexual misconduct, or
indecent exposure. The Kentucky Supreme Court has held that an act as simple as
grabbing someone’s hand may satisfy the element of forcible compulsion. Yates v.
Commonwealth, 430 S.W.3d 883, 890 (Ky. 2014). This is because forcible
compulsion is always grounded on a lack of consent. Id. That is to say, a person
who consents to contact cannot be said to have been a victim of forcible
compulsion, whereas a person who does not consent may be characterized as a
victim of forcible compulsion. Id.
Since the mere act of holding or grabbing someone’s hand without her
consent may, under the right circumstances, be characterized as an act of forcible
-17- compulsion, we conclude that Appellant’s act of placing his penis in B.B.’s mouth
while she was asleep or unconscious may also be characterized as an act of forcible
compulsion. We draw that conclusion because both acts share the element of lack
of consent. Further, since B.B. testified that Appellant had previously forced her
head toward his crotch, a reasonable juror could conclude that B.B. was in fear of
additional acts of physical compulsion thus satisfying “threat of physical force,
express or implied” language of KRS 510.010(2).
The standard of review on a motion for a directed verdict was set forth
in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), in which the
Kentucky Supreme Court stated:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
(Citations omitted.) The prosecution must produce more than a “mere scintilla of
evidence” regarding the defendant’s guilt. Id. at 188. However, “[t]he testimony
-18- of even a single witness is sufficient to support a finding of guilt, even when other
witnesses testified to the contrary if, after consideration of all of the evidence, the
finder of fact assigns greater weight to that evidence.” Commonwealth v. Suttles,
80 S.W.3d 424, 426 (Ky. 2002) (citation omitted). The Commonwealth produced
more than a mere scintilla of evidence that Appellant was guilty of first-degree
sodomy under KRS 510.070. We find no error on this issue.
Appellant’s final argument is that the cumulative effect of the
foregoing errors requires reversal. Cumulative error can serve as a basis for
reversal if the multiple errors, although individually harmless, have the effect of
rendering the trial fundamentally unfair. Elery v. Commonwealth, 368 S.W.3d 78,
100 (Ky. 2012) (citation omitted). We find no cumulative error which deprived
Appellant of a fair trial. Having determined that Appellant was not deprived of a
fair trial, we find no error in the Carter Circuit Court’s denial of Appellant’s
motion for a new trial in appeal No. 2020-CA-1719-MR.
CONCLUSION
Having closely examined the record and the law and given due
consideration to the arguments of counsel, we do not find any individual or
cumulative error warranting reversal of the judgment on appeal. Appellant is not
entitled to a new trial. We affirm the judgment of the Carter Circuit Court.
-19- ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Paul J. Dickman Daniel Cameron Covington, Kentucky Attorney General of Kentucky
Mark D. Berry Assistant Attorney General Frankfort, Kentucky
-20-