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Supreme Court of Kentucky 2024-SC-0549-MR
BENJAMIN WARD APPELLANT
ON APPEAL FROM BOONE CIRCUIT COURT V. HONORABLE REBECCA LESLIE KNIGHT, JUDGE NO. 16-CR-00044
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury of the Boone Circuit Court found Appellant Benjamin Ward guilty
of one count of use of a minor in a sexual performance, one count of
possession of matter portraying a sexual performance by a minor, and multiple
counts of first-degree sexual abuse, third-degree sodomy, and third-degree
rape. 1 The jury recommended a total sentence of 63 years, which the trial
court imposed. Ward now appeals to this Court as a matter of right. Ky.
Const. § 110(2)(b). Following a careful review, we affirm.
1 Ward was previously tried and convicted of these same charges, which this
Court reversed for failure of the trial court to strike a juror when there was reasonable ground to believe the juror would be unable to render an impartial verdict. Ward v. Commonwealth, 587 S.W.3d 312, 328-30 (Ky. 2019). The present convictions resulted from the retrial following our remand of the case to the Circuit Court. FACTUAL AND PROCEDURAL BACKGROUND
H.G. 2 moved to her father’s house in Hebron, Kentucky, which was
located across the street from Appellant Ward’s residence. H.G.’s move was
precipitated by her mother’s drug addiction issues. After the move, H.G. did
not get along with her father or stepmother.
H.G. met Ward and his wife, Cindy, and began to spend a lot of time at
their home, eventually developing a close relationship with them. Ward began
touching H.G. in a sexual way in 2009, when she was around 11 years old.
Ward was in his fifties. He eventually began having oral and vaginal sex with
H.G. when she was around 11 or 12 years old. H.G. testified to experiencing
pain and being scared when these incidents occurred.
H.G. testified that she frequently texted and messaged Ward on various
apps, and that she sent him lots of pictures, including nude photos. She
further testified that Ward asked for nude photos frequently, that she sent him
many such photos, and that he also directed her to wear certain clothing or
use certain poses in photos. H.G. read text messages between Ward and
herself to the jury that corroborated her testimony. 3
In 2012, H.G. informed her father in a written letter that Ward was her
“boyfriend” and that he had been trying to make her have sex with him for two
years. H.G. later stated she did not reveal at this time that Ward was already
2 We use initials here to protect the privacy of the child victim.
3 In the text messages, Ward directed H.G. to wear a particular pair of shorts, to
“do a striptease,” and to bend over more in a video. He also referred to H.G. as his “wife,” and stated “come home, I need to [expletive] you.” 2 raping her because she was trying to protect Ward. H.G.’s father called the
police. On January 30, 2013, the Child Advocacy Center (CAC) conducted an
interview with H.G. in which she stated she wrote the letter to her father
because Ward would not buy her an item she wanted. She disclosed Ward’s
messages to her but denied having any sexual contact with him. No charges
were pursued at that time, and H.G. continued to sneak out to see the Wards
even though she had been forbidden from visiting them. Ward continued to
abuse and rape H.G.
Around this time, Ward’s wife Cindy became suspicious of Ward’s
relationship with H.G. On Cindy’s 50th birthday, she received an explicit
message from Ward she believed was intended for H.G. and that included
H.G.’s name. Cindy also testified at trial that in February 2014 she saw a nude
image of H.G. on Ward’s phone, and that Ward was “sitting in his chair
squirming” and rubbing himself.
Cindy subsequently went to the police. During a controlled phone call
between Cindy and Ward, Ward admitted to “sex texting” with H.G. but denied
having sexual contact. Police subsequently executed a search warrant at the
Wards’ residence. Law enforcement seized and examined computer and
electronic devices which revealed nude photographs of H.G. However, the
images were not in an ordinary photo folder, but rather were in a thumbcache
and thus viewable only with special software. At trial, a detective testified that
Ward’s computer had no password and thus was accessible by anyone. He
also testified that while the nude images were in the thumbcache, he did not
3 know for how long they were there or even if a user, or which user, would have
known it was there.
H.G. later disclosed Ward’s abuse to her fiancé Austin. At Austin’s
urging, H.G. then disclosed Ward’s abuse during an August 2015 CAC
interview. Ward was indicted and, following a jury trial, convicted of use of a
minor in a sexual performance, possession of matter portraying a sexual
performance by a minor, first-degree sexual abuse, third-degree sodomy, and
third-degree rape. 4 The jury recommended a total sentence of 63 years, which
the trial court imposed. Ward now appeals as a matter of right.
ANALYSIS
Ward raises four issues for our review: (1) whether testimony by H.G.’s
fiancé was irrelevant, inadmissible hearsay, and impermissible bolstering;
(2) whether the trial court improperly limited closing arguments to 15 minutes;
(3) whether there was insufficient evidence to sustain Ward’s conviction for
possession of matter portraying a sexual performance by a minor; and (4)
whether Ward suffered prejudice as a result of erroneous testimony regarding
sentencing during the penalty phase of the trial. We review each issue in turn,
providing additional facts as necessary.
I. The Trial Court Did Not Abuse Its Discretion In Admitting Testimony By H.G.’s Fiancé.
Ward first argues that the trial court erred in admitting testimony by
H.G.’s fiancé Austin. By way of background, Ward’s counsel asked H.G. on
4 Judge R. Leslie Knight presided over the trial sitting as a Special Judge.
4 cross-examination whether she or her mother had received monetary payments
from a victim’s compensation fund. Counsel asserted the questions were
relevant because while H.G. denied sexual contact during the 2013 CAC
interview, she made rape and sexual abuse allegations in her 2015 CAC
interview, close in time to the alleged receipt of victim’s compensation funds.
H.G. testified she did not receive any funds and was unaware of her mother
receiving any funds.
After this testimony, the Commonwealth stated its intention to call
Austin to the stand. The Commonwealth sought to elicit testimony from Austin
that H.G. told him about Ward’s abuse and that he urged her to report it to law
enforcement. The Commonwealth contended the testimony was relevant
because the defense’s questioning of H.G. regarding the victim’s compensation
fund suggested that H.G. had a financial motive to lie, and the Commonwealth
therefore needed to rebut that suggestion by demonstrating that H.G. reported
the abuse due to Austin’s urging rather than monetary payments. Defense
counsel objected that the testimony was not relevant and thus inadmissible.
The trial court overruled the objection and allowed the Commonwealth to
proceed with Austin’s testimony.
Austin testified that Ward was “not a very good person” and that H.G.
had told him about “the whole situation” with Ward. When the Commonwealth
inquired further, Austin stated he was talking about “how [Ward] was raping
her, I guess.” Austin testified H.G. was upset and scared, and that he
encouraged her “to go tell.” Austin’s testimony lasted around six minutes,
5 during which he did not go into any further detail regarding what H.G. had
reported to him about Ward.
Ward now contends admission of this testimony was error. Ward first
argues that Austin’s testimony was irrelevant and thus inadmissible. Ward
objected to Austin’s testimony on grounds of relevance, and thus this argument
is preserved. Kentucky Rule of Evidence (“KRE”) 103(a)(1) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected [and, if] the ruling is one admitting
evidence, a timely objection . . . appears of record, stating the specific ground
of objection, if the specific ground was not apparent from the context.”). We
review evidentiary rulings for abuse of discretion, and thus consider whether
the trial court’s decision was “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Roberson v. Commonwealth, 694 S.W.3d 272, 279
(Ky. 2024) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575,
581 (Ky. 2000)).
KRE 402 provides that “[e]vidence which is not relevant is not
admissible.” Thus, evidence is admissible only if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
KRE 401. Ward first asserts Austin’s testimony was irrelevant because H.G.
testified she was unaware of her family receiving any victim’s compensation
funds, and because Austin was unaware of when H.G. disclosed the abuse to
him. However, defense counsel’s questioning of H.G. about victim’s
6 compensation funds would naturally raise in the minds of the jury a question
as to whether H.G. made her allegations for financial gain. Once such a
specter was raised, it became relevant for the Commonwealth to demonstrate
H.G. reported the abuse not for financial gain, but rather for another reason—
the urging of her fiancé after her disclosure of Ward’s abuse. Further, the mere
fact that Austin did not recall when H.G. disclosed the abuse was generally
immaterial and did not render his testimony irrelevant. Thus, because Austin’s
testimony that he urged H.G. to disclose the abuse made it more probable that
she reported the abuse for that reason rather than for financial gain, the
evidence was relevant and admissible under KRE 402.
Ward further asserts that even if relevant, Austin’s testimony was more
prejudicial than probative because Austin stated Ward was “not a very good
person” and that Ward had raped H.G. KRE 403 provides that “evidence may
be excluded if its probative value is substantially outweighed by the danger of
undue prejudice.” In considering whether evidence should be excluded under
KRE 403, a trial court must consider three factors “the probative worth of the
evidence, the probability that the evidence will cause undue prejudice, and
whether the harmful effects substantially outweigh the probative worth.” Yates
v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014). On appellate review, we
“must consider the evidence in the light most favorable to its proponent, giving
the evidence its maximum reasonable probative force and its minimum
prejudicial value.” Id.
7 We perceive no undue prejudice in the statement that Ward was “not a
very good person.” Evidence that is “unduly” prejudicial is that which
is harmful beyond its natural probative force: “Evidence is unfairly prejudicial only if . . . it ‘appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish,’ or otherwise ‘may cause a jury to base its decision on something other than the established propositions in the case.’”
McLemore v. Commonwealth, 590 S.W.3d 229, 234 (Ky. 2019) (citation omitted).
A mild reference to the defendant as “not a very good person” does not rise to
the level of opprobrium that might be expected to cause a jury to base its
decisions on factors beyond the core facts of the case. Thus, there was no
abuse of discretion in the admission of that testimony.
Nor do we perceive any abuse of discretion in allowing Austin to testify
that Ward had been raping H.G. First, that testimony was highly probative of
the purpose for which the Commonwealth sought to introduce it—namely, to
establish that H.G. reported Ward’s abuse at Austin’s urging rather than for
financial gain. Indeed, Austin’s testimony that Ward had been raping H.G. was
strong evidence that he believed H.G. had been subjected to severe criminal
abuse, and thus lent credibility to his assertion that he therefore urged H.G. to
report that abuse.
Second, while the assertion was also plainly prejudicial, it was not
unduly so. See Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (“KRE
403 . . . does not offer protection against evidence that is merely prejudicial in
the sense that it is detrimental to a party’s case.”). Austin did not go into
graphic detail nor linger further on the point, nor did the Commonwealth. 8 Indeed, Austin’s testimony was cursory, involved only the bare assertion that
Ward had raped H.G., and lasted less than ten minutes. Thus, because the
probative value of the testimony was strong and the testimony was of limited
prejudicial impact, we find no abuse of discretion in admitting that testimony.
While Ward argued relevance to the trial court, he did not argue there, as
he does now, that Austin’s testimony was also inadmissible hearsay and
bolstering. As such, those arguments are unpreserved and thus reviewable
only for palpable error. 5 Id.; Rule of Criminal Procedure (RCr) 10.26 (“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.”).
In determining whether an error is palpable, we consider
“whether on the whole case there is a substantial possibility that the result would have been any different.” To be palpable, an error must be “easily perceptible, plain, obvious and readily noticeable.” A palpable error must be so grave that, if uncorrected, it would seriously affect the fairness of the proceedings. “It should be so egregious that it jumps off the page . . . and cries out for relief.”
Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted). Even
where an error is palpable and thus meets this standard, however, relief is
warranted only where the error also results in manifest injustice.
Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). An error results in
5 Ward requests palpable error review as to his hearsay and bolstering
arguments. 9 manifest injustice if it “so seriously affected the fairness, integrity, or public
reputation of the proceeding as to be ‘shocking or jurisprudentially
intolerable.’” Conrad v. Commonwealth, 534 S.W.3d 779, 783 (Ky. 2017)
(quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).
Ward asserts that H.G.’s statement to Austin that Ward raped her was
not admissible as a prior consistent statement, and thus was inadmissible
hearsay. More particularly, Ward asserts the Commonwealth failed to
establish that H.G. made the statements to Austin before the alleged receipt of
victim’s compensation funds provided a financial motive to make false
allegations against Ward.
KRE 801A(a)(2) provides that
[a] statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement . . . and the statement is . . . [c]onsistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
As both parties acknowledge, the Rule applies only “to statements the
declarant made pre-dating their supposed motive to fabricate their sworn
testimony.” Riggle v. Commonwealth, 686 S.W.3d 105, 114 (Ky. 2023).
However, we have previously explained that a “post-motive” prior
consistent statement nonetheless also may be admitted—independently of KRE
801A—to rehabilitate a witness after an express or implied suggestion at trial
that the witness’s testimony was fabricated or motivated by improper purpose
or motive:
10 A witness’s prior consistent statements made post-motive are naturally not barred by the hearsay rule when they do not constitute hearsay—namely when offered primarily for rehabilitative, not substantive purposes. In such a case, the statement is not admitted under KRE 801A(a)(2) as a prior consistent statement. Indeed, KRE 801A(a)(2) does not even address this scenario. Rather the statement is admitted as non-hearsay because it is offered not for the truth of the matter but to rehabilitate credibility.
Id. (cleaned up).
Such was the case here. By cross-examining H.G. about the victim’s
compensation fund, defense counsel implied H.G. had a financial motive to
make allegations against Ward. In response, the Commonwealth called Austin
for the express purpose of rebutting the implication that H.G. made her
allegations out of financial motive by demonstrating that, in reality, H.G.
reported Ward’s abuse at Austin’s urging after she disclosed Ward’s crimes to
Austin. Thus, Austin’s testimony regarding H.G.’s statements to him were not
admitted to prove the truth of the matter asserted—that Ward had actually
raped and abused H.G.—but rather to prove that H.G. reported the abuse at
Austin’s urging rather than for financial gain. As such, Austin’s testimony did
not involve impermissible hearsay. See id.; KRE 801(c) (“‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”)
(emphasis added).
Nor do we find that Austin’s testimony constituted improper bolstering.
Ward points us to Stephens v. Commonwealth, 680 S.W.3d 887 (Ky. 2023), and
Chavies v. Commonwealth, 374 S.W.3d 313 (Ky. 2012), for the proposition that
11 a witness’s repetition of a victim’s allegations constitutes improper bolstering.
Admittedly, both cases—and many others—hold that it is generally improper
for a witness, in the absence of an allegation of recent fabrication or improper
purpose or motive, to bolster a victim’s allegations by repeating hearsay
statements the victim previously made making the same allegations. See, e.g.,
Stephens, 680 S.W.3d at 898. However, Stephens and Chavies are
distinguishable because, unlike here, neither involved a witness’s repetition of
the victim’s allegations to rebut a defense suggestion that the victim’s
allegations were a recent fabrication or motivated by an improper purpose or
motive. Stephens, 680 S.W.3d at 898 (“[Defendant] did not imply a charge of
recent fabrication by [the victim].”); Chavies, 374 S.W.3d at 321-22.
In contrast, in the present case, the Commonwealth elicited Austin’s
testimony that H.G. told him Ward had raped and abused her in an effort to
confront the defense’s implication that H.G. only reported the abuse for
financial gain. We have previously held that where a witness repeats a
witness’s allegations for the purpose of confronting an implication of
fabrication or improper purpose or motive, such testimony does not constitute
improper bolstering but rather appropriate rehabilitation. Riggle, 686 S.W.3d
at 115 (holding that admission of prior consistent statement of sexual abuse
was not improper bolstering because it “went to rehabilitate [the victim’s]
credibility after multiple insinuations from defense counsel that [the victim]
had fabricated her testimony.”). We further note that, unlike Stephens, where
the testimony went far beyond what was necessary to establish that the victim
12 had disclosed a rape to the witness, Austin provided no more detail than was
necessary to prove that H.G. had disclosed Ward’s crimes to him. Compare
Stephens, 680 S.W.3d at 899 (finding statements were impermissible bolstering
hearsay because they went “far beyond” what was necessary merely to
establish that the victim disclosed). Thus, because Austin testified to H.G.’s
disclosures only for the purpose of rehabilitating her after the implication of
improper financial motive, the testimony was not improper bolstering and the
trial court did not abuse its discretion in admitting it.
II. The Trial Court Did Not Abuse Its Discretion In Limiting Closing Argument To Fifteen Minutes.
Ward next argues the trial court erred in limiting each side to only 15
minutes of closing argument. When the trial court announced this limitation,
Ward objected that 15 minutes was not sufficient given the complexity and
length of the case. Thus, this allegation of error is preserved. RCr 9.22.
Under our long-standing guidelines for determining an appropriate
length of time for closing arguments, “[t]he trial court should, of course, allow
counsel for the accused in every case reasonable time and opportunity to
present the reasons why there should be an acquittal.” Young v.
Commonwealth, 119 S.W.2d 647, 651 (Ky. 1938). The determination of
whether the allotted time is reasonable “depends upon the facts and
circumstances of each particular case.” Id. Relevant factors to consider
include the “complexity or simplicity [of the case], the amount and character,
whether direct or circumstantial, of the testimony taken, the number of
witnesses which have been examined, contradictions in the evidence, and the 13 time which has already been consumed” in hearing the case. Thomas v.
Commonwealth, 193 S.W. 653, 656 (Ky. 1917) (citation omitted).
We review a trial court’s temporal limitation of closing argument for
abuse of discretion. Young, 119 S.W.2d at 650 (“The limiting of the argument
is always in the sound discretion of the trial court and only when that
discretion is abused will this court reverse a judgment.”). Notably, reversal is
warranted only where it is shown that the temporal limitation operates to the
prejudice of the defendant. Stout v. Commonwealth, 146 S.W. 407 (Ky. 1912)
(noting that the time allotted for argument is not reversible error “unless it
affirmatively appears that this discretion has been abused to the prejudice of
the accused.”); RCr 9.24 (“The court at every stage of the proceeding must
disregard any error or defect in the proceeding that does not affect the
substantial rights of the parties.”).
Here, Ward argues 15 minutes was an insufficient amount of time for
closing argument because trial lasted for several days, involved more than 100
exhibits, and related to allegations covering a span of years. Ward also notes
there was a significant amount of digital forensic evidence, and that with
additional time he would have presented argument to the jury regarding
metadata and the forensic evidence. Ward further asserts that with additional
time, he also could have highlighted the lack of evidence of a video call or
messages including photos in the record. Ward further points to H.G.’s
changing allegations against him and the fact that his expert was called out of
14 order (and thus temporally distant from the jury’s deliberations) as warranting
further time for closing argument.
While the trial judge offered no factual basis for the 15-minute limit on
each side’s closing arguments—and while we also cannot independently think
of any, nor do we consider such a limitation in a case such as this one good
practice—we nonetheless also conclude reversal is not warranted because
Ward has not shown that he suffered any actual prejudice as a result of the
limitation. Though the trial lasted several days, it ultimately involved
straightforward determinations of whether Ward possessed images of H.G.
engaged in a sexual performance at his request, and whether he had engaged
in various forms of sexual contact with H.G. The jury instructions setting forth
the substantive law governing these charges covered a total of 11 pages, each
of which was at least half devoid of any text whatsoever. Thus, we do not
perceive a complexity so significant that we can find prejudice merely from the
nature of the case itself. In addition, while Ward cursorily asserts he was
prevented from providing evidence regarding metadata or forensic evidence, he
does not further explain or develop that argument in any meaningful way to
demonstrate that he was prejudiced by the alleged inability to discuss such
evidence. Finally, while Ward also asserts he lacked an opportunity to point
out a lack of video evidence or messages that included illicit photographic
content, such an observation could, of course, be highlighted in a matter of
seconds. Thus, because Ward has not demonstrated that he suffered any
15 actual prejudice as a result of the temporal limitation, we do not find that it
warrants reversal.
III. Ward Was Not Entitled To A Directed Verdict On The Possession Charge.
Ward next argues there was insufficient evidence to sustain his
conviction for possession of matter portraying a sexual performance of a minor.
Ward moved for directed verdict on this count and thus his argument is
preserved.
The standards for a motion for directed verdict in a criminal case are well
established:
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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “[T]here must be
evidence of substance, and the trial court is expressly authorized to direct a
verdict for the defendant if the prosecution produces no more than a mere
scintilla of evidence.” Id. at 187-88.
When reviewing a trial court’s decision regarding directed verdict in a
criminal case, our test “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.” Id. at 187. In sum, “the relevant question is
16 whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Crabtree v. Commonwealth, 455
S.W.3d 390, 396 (Ky. 2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
Kentucky Revised Statute (KRS) 531.335(1)(a) provides in relevant part
that a person is guilty of possession of matter portraying a sexual performance
of a minor “when, having knowledge of its content, character, and that the
sexual performance is by a minor, he or she . . . [k]nowingly has in his or her
possession or control any matter which visually depicts an actual sexual
performance by a minor person.” As this statutory language makes plain, a
defendant is guilty only if he knows that he has such matter in his possession
or control, knows the content and character of the matter, and knows that the
matter involves a sexual performance by a minor. Id.; Crabtree, 455 S.W.3d at
402 (“The mens rea requirements of KRS 531.355 are satisfied by showing that
the defendant knew the videos were child pornography and that he knowingly
possessed them.”). Thus, there is no crime of mere negligent but unknowing
possession of such material. Crabtree, 455 S.W.3d at 398. Rather, the
requisite mental state required for criminal liability is “described in a single
word—awareness.” Id. (citation omitted).
Ward’s conviction for possession of matter portraying a sexual
performance by a minor followed the discovery of nude images of H.G. in his
computer’s “thumbcache” which were viewable only with special software. We
17 have previously explained the distinction between ordinary images accessible
by any ordinary computer user, and “thumbcache” images such as those at
issue here viewable only with special software:
[T]he thumbcache allows for the quicker display of images without having to load them from the hard drive each time, and works as an index of images and videos. . . . The thumbnail is a smaller version of the image or the first frame of a video, and serves as a preview of the original file. Separate thumbnail images are automatically generated in the thumbcache, which is a separate file.
[T]he thumbcache is separate from the original image file. Thumbcache images are not deleted when the original file is deleted, and the images contained in the cache are not readily accessible to the average user but instead require special software to view.
Id. at 403. However, images that led to thumbnails found in a thumbcache
must have been on the computer at one time. Id. (“The original images that led
to the thumbcache images were not found on [defendant’s] computer, though
they had to have been there at one time.”) (emphasis added).
Ward argues that the proof at trial was insufficient to allow a reasonable
juror to conclude that he knowingly possessed the nude images of H.G. located
in his computer’s thumbcache—i.e., that he was aware such images were on
his computer. Ward points out that both his expert and the Commonwealth’s
expert agreed it is unknown how the photos came to be on Ward’s computer, or
if they were even viewed. The Commonwealth’s expert testified that the photos
were not located in the computer’s photo folder where they might be accessed
by an ordinary computer user. Rather, the photos were located in the
thumbcache that could not be accessed without special software. Such
18 software was not found on Ward’s computer. Ward further points out that
there was also testimony that his computer was not password-protected, and
thus was accessible by anyone.
Ward argues that given these facts, his conviction is similar to that of the
defendant in Crabtree and likewise should be reversed. However, Crabtree is
distinguishable. In Crabtree, the defendant was convicted on the basis of
images containing child pornography found in his computer’s thumbcache.
455 S.W.3d at 405. We reversed because while the thumbcache images were
proof of prior possession of the original images that lead to the thumbcache
images, they were not—without more—proof of knowing possession of the
original images:
At the time the original images are downloaded (and the thumbcache image is created), the defendant possesses the image. That the original download occurred, even though the images are later deleted, is shown indirectly by the persistence of the thumbcache images. Those images show that at some point in the past, the defendant possessed the original images. The thumbcache is evidence of a previous possession just as a fingerprint can be evidence of a defendant’s earlier presence at a crime scene.
The Commonwealth’s burden, however, is not merely to show that Crabtree literally had the original images on his computer but to show he knowingly possessed them. In other words, although the thumbcache is evidence of prior possession (at least in some sense), is it evidence of knowing prior possession of the original images?
By itself, it is not. There are numerous reasons why those images could have been on Crabtree’s computer [for example, innocent searches that returned child pornography or unintentional downloading of files with innocent file names that contained child pornography].
19 Id. Thus, because “the Commonwealth had no evidence related to the source of
the original files, what their names were, or anything,” there was not sufficient
evidence to show knowing possession as required to sustain the conviction. Id.
Here, in contrast, the Commonwealth did present proof of how Ward
came to be in possession of nude images of H.G. that led to the creation of the
thumbcache images. More particularly, H.G. testified that she recognized the
images and that she had sent them to Ward. Indeed, the photos were of H.G.
herself. H.G. also read to the jury text messages in which Ward directed H.G.
to wear certain clothing, do certain acts, and adopt certain poses in photos he
asked her to send. A detective also testified that because the thumbnails were
present on Ward’s computer, the original images also must have been present
at some point.
Taken together—and unlike Crabtree in which the Commonwealth lacked
evidence as to how the images came to be in the defendant’s thumbcache—this
proof was sufficient to allow a reasonable juror to conclude beyond a
reasonable doubt that Ward knowingly possessed the nude images of H.G.
Significantly, “direct proof of knowledge is not necessary” to obtain a conviction
for possession of child pornography. Id. at 399. Rather, “[p]roof of actual
knowledge can be by circumstantial evidence.” Id. (quoting Love v.
Commonwealth, 55 S.W.3d 816, 825 (Ky. 2001)). And where there is sufficient
circumstantial evidence from which the jury may infer a culpable mental state,
the case is properly submitted to the jury. Id. at 399-400. Quite simply, it can
reasonably be inferred from H.G.’s testimony that she recognized and sent
20 those photos to Ward that he knowingly received and possessed them.
Moreover, H.G.’s testimony that she sent Ward the photos shown in the
thumbcache demonstrated not only that Ward knowingly possessed some nude
photos of H.G., but rather that he knowingly possessed the same photos for
which he was charged. See id. at 408 (“[T]here must be an evidentiary nexus
between the evidence that could show knowledge and the illegal images found
on the computer.”). Thus, because there was sufficient evidence to allow a
reasonable juror to conclude beyond a reasonable doubt that Ward knowingly
possessed the nude images of H.G. that she had sent him, the trial court did
not err in denying Ward’s motion for directed verdict on the possession charge.
IV. Though The Parole Officer’s Penalty Phase Testimony Regarding Parole Eligibility And Time Credits Was Incorrect, It Did Not Result In Palpable Error.
Ward next argues reversal is warranted because erroneous sentencing
information was presented to the jury during the penalty phase of the trial.
Ward acknowledges this error is unpreserved, and we therefore review for
palpable error.
During the penalty phase, the Commonwealth called a parole officer to
testify about, among other things, parole eligibility, time credits, and
serve-outs. During that testimony, the officer told the jury that violent
offenders could receive a 7-day reduction of their sentence for each month of
good behavior. He sometimes referred to the credit as “good time” credit, and
21 at other times referred to it as “meritorious” credit. 6 The officer further testified
that while violent offenders must serve 85% of their sentence before being
considered for parole, good behavior credit could accumulate such that the
offender would be deemed to have completed the sentence and released even
before the offender reached the necessary 85% threshold for an initial parole
hearing. He further provided an example in which someone who was given a
20-year sentence—and thus entitled to appear before the parole board at 17
years—might be released after 14 or 15 years due to the accumulation of good
behavior credit. On cross-examination, Ward’s counsel clarified that under the
relevant statute, a violent offender should not be released until they have
served at least 85% of the sentence, or at least 20 years, whichever comes first.
Under KRS 439.3401(1)(a)(3), Ward qualifies as a violent offender
because he was convicted of a felony sexual offense. The statute also makes
clear that a violent offender sentenced to a term of years “shall not be released
on . . . parole . . . until he or she has served at least eighty-five percent (85%) of
the sentence imposed.” KRS 439.3401(4). 7 Thus, the parole officer’s testimony
that good behavior credits could accumulate and allow a violent offender to be
6 The full context of the officer’s testimony makes clear he was addressing “good
behavior” credit rather than “meritorious service” credit. Indeed, he told the jury the credit he was discussing was earned “as long as you’re doing what you’re supposed to be doing in the institution, not getting any write-ups, you’re not in any fights, as long as you are doing what they’re telling you to do.” 7 Technically, prior versions of this statute were in effect at the time of the
crimes at issue here. However, the differences between the prior and current versions are immaterial as both would require Ward to serve 85% of his sentence before he could be considered for parole. We therefore cite to the present version for ease of reference. 22 released prior to reaching the 85% threshold was incorrect. See James v.
Commonwealth, 681 S.W.3d 60, 73 (Ky. 2023) (“[A] prisoner does not actually
receive good time credit until he or she reaches the minimum parole
eligibility.”). In addition, the officer’s testimony was mistaken insofar as he
sometimes referred to “good behavior” credit as “meritorious” credit. Compare
KRS 197.045(1)(b)(1) (addressing “good behavior” credit) and KRS
197.045(1)(b)(2) (addressing “meritorious service” credit).
However, we do not find those errors to have resulted in manifest
injustice. As noted above, manifest injustice occurs only where the error so
seriously affects the fairness, integrity, or public reputation of the proceeding
as to be shocking or jurisprudentially intolerable. Conrad, 534 S.W.3d at 783.
While the officer incorrectly testified that a violent offender could receive good
behavior credits and such credits might result in release before the 85%
threshold required for a violent offender to be considered for parole, defense
counsel significantly mitigated that error by subsequently eliciting testimony
that, in fact, such offenders must serve 85% of their sentence before they can
be released on parole. See James, 681 S.W.3d at 74 (finding no palpable error
where parole officer incorrectly stated good time credit can affect parole
eligibility, given that Commonwealth subsequently pointed out that parole was
available only after 20 years). While defense counsel did not specifically
address the interplay of time credits with the 85% threshold, the jury
nonetheless was left with the correct impression that the 85% threshold had to
be met before parole could be considered. Moreover, there is no indication the
23 Commonwealth relied upon the officer’s incorrect testimony in order to obtain a
higher sentence from the jury. Compare Robinson v. Commonwealth, 181
S.W.3d 30, 38 (Ky. 2005) (finding palpable error where Commonwealth in
closing argument pointed to inaccurate testimony that good behavior credit
could affect parole eligibility) and James, 681 S.W.3d at 74 (finding no palpable
error where subsequent testimony correctly stated parole eligibility
requirements and “[t]he Commonwealth did not reference parole eligibility or
the effect of any good time credits during its closing argument.”). Indeed, in its
closing argument, the Commonwealth did not mention at all the timing or even
the possibility that Ward might be placed on parole. Finally, the officer’s
mistaken reference to “good behavior” credit as “meritorious” credit was wholly
harmless, as it was clear he was referring only to “good behavior” credit. In
sum, though the testimony was erroneous, it did not so seriously undermine
the fairness, integrity, or public reputation of the proceedings as to be shocking
or jurisprudentially intolerable. As such, the testimony did not constitute
palpable error warranting reversal.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Boone Circuit Court.
All sitting. Bisig, Conley, Goodwine, Keller, and Nickell, JJ., concur.
Thompson, J., concurs in result only by separate opinion which Lambert, C.J.,
joins.
24 THOMPSON, J., CONCURRING IN RESULT ONLY: Given the relative
complexity of the case and the evidence presented, the trial court abused its
discretion in limiting closing argument to fifteen minutes. However, the trial
court’s error was ultimately harmless.
Accordingly, I concur in result only.
Lambert, C.J., joins.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Graham Pilotte Assistant Solicitor General