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Supreme Court of Kentucky 2023-SC-0453-MR
BOBBY LEE ANDERSON, JR. APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT V. HONORABLE TYLER L. GILL, SPECIAL JUDGE NO. 20-CR-00258
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Graves County jury convicted Bobby Anderson (“Anderson”) of two
counts of unlawful transaction with a minor, three counts of incest, two counts
of third-degree sodomy, one count of third-degree rape, one count of third-
degree attempted rape, eight counts of first-degree sexual abuse, and one
count of being a second-degree persistent felony offender. The Graves Circuit
Court thereafter sentenced Anderson to life imprisonment. Anderson now
appeals as a matter of right and challenges his convictions. See KY. CONST. §
110(2)(b). Having reviewed the record, the arguments of the parties, and the
applicable law, we affirm the Graves Circuit Court.
I. FACTS & BACKGROUND In 2014, Anderson’s minor stepdaughter K.C. accused Anderson of
sexually abusing her over a period of several years while they shared a home. Since 2008 or 2009, K.C. lived with her mother, Jennifer Moore (“Moore”), and
Anderson in a single-room building on land owned by Anderson’s mother. K.C.
was roughly ten or eleven years old at this time. K.C. regularly slept on a
couch, while Moore and Anderson slept in a bed behind that couch. K.C.’s
mother, Moore, faced several health problems and routinely took medication
that affected her alertness. According to K.C.’s testimony at trial, Anderson
made sure that Moore took her medication every night. K.C. testified that
Anderson would regularly use those opportunities, while Moore was asleep, to
sexually abuse her.
K.C. testified that Anderson always abused her on the building’s couch
while her mother was in bed. According to K.C., Anderson usually initiated his
abuse by first rubbing her feet with lotion or Vaseline. K.C. specifically testified
to multiple instances in which Anderson manipulated her clothes and touched
her vagina with his fingers or his penis. K.C. also testified to one occasion in
which Anderson penetrated her vagina with his penis. K.C. testified that there
were multiple instances in which Anderson licked her vagina and
simultaneously put his penis in her mouth. K.C. testified that she frequently
attempted to wake her mother by making sounds while Anderson was abusing
her.
After enduring years of abuse, K.C. revealed Anderson’s abuse to her
stepmother, Tammy Crisp, while she was visiting Tammy’s home. K.C. had a
close relationship with Tammy, who had raised her prior to moving in with
Moore and Anderson. K.C. testified that she told Tammy about Anderson’s
2 abuse because she was aware that Anderson would soon be incarcerated on
different criminal charges. Tammy reported K.C.’s allegations to the authorities
in June 2014. Anderson was later incarcerated in November 2014. It would not
be until December 2020, however, that the Commonwealth charged Anderson,
by way of information, with twelve counts of criminal conduct stemming from
K.C.’s allegations. Specifically, Anderson was charged with eleven counts of
sexual abuse in the first degree, and one count of sodomy in the third degree.
In March 2023, the Commonwealth presented the case to a Graves County
Grand Jury, which returned a superseding eighteen-count indictment charging
Anderson with various sex crimes and with being a persistent felony offender.
The parties proceeded to trial in Graves Circuit Court on April 26, 2023.
Prior to trial, however, the Commonwealth notified Anderson of its
intention to introduce evidence of Anderson’s other crimes and prior bad acts
through the testimony of his biological daughter M.A. According to the
Commonwealth, M.A. planned to testify that Anderson had sexually abused her
after K.C. had moved out of Anderson’s home. During Anderson’s trial, M.A.
did take the stand and testified that she visited Anderson in the summer of
2014. M.A. testified that on one occasion she was asleep in her room at
Anderson’s mother’s house, and she awoke to find that Anderson had put his
hand inside her shorts and was touching her vagina. M.A. testified that she
asked Anderson what he was doing, but he responded, “nothing,” and left the
room. M.A. testified that she told Anderson’s mother, Lorraine, about this
incident and later told her school counselor as well. The record on appeal
3 indicates that Anderson was also separately indicted for crimes he allegedly
perpetrated against M.A.
At his trial on the instant charges, pertaining to K.C., Anderson’s defense
was one of complete innocence. Anderson testified in his own defense and
denied that he had sexually abused K.C. or M.A. He maintained that he treated
K.C. as if she was his own biological child.
Ultimately, the jury convicted Anderson on all eighteen counts: two
counts of unlawful transaction with a minor, three counts of incest, two counts
of third-degree sodomy, one count of third-degree rape, one count of third-
degree attempted rape, eight counts of first-degree sexual abuse, and one
count of being a second-degree persistent felony offender. The Graves Circuit
Court sentenced Anderson to a life of imprisonment.
Further facts will be developed below as necessary.
II. ANALYSIS On appeal, Anderson advances three arguments advocating for the
reversal of his convictions. First, he asserts that the trial court erred in
admitting improper evidence of his other crimes and prior bad acts in
contravention of Kentucky Rule of Evidence (“KRE”) 404(b). Second, he argues
that the trial court erred in denying his pretrial motion to continue his trial due
to the Commonwealth’s desire to introduce M.A.’s testimony. Third, he argues
that the trial court erred in failing to order a continuance on the morning of the
first day of trial after it learned that his defense counsel had failed to review
4 allegedly exculpatory evidence prior to trial. This Court, however, disagrees
with Anderson’s arguments and affirms the Graves Circuit Court.
A. The trial court did not err in admitting evidence of Anderson’s other crimes or prior bad acts.
Anderson first alleges that the trial court improperly admitted extensive
evidence of his other crimes and prior bad acts under KRE 404(b), thereby
causing him to suffer substantial prejudice at trial. Specifically, Anderson
argues that the trial court improperly permitted: (1) K.C. to testify to her
knowledge that Anderson was going to prison; (2) M.A. to testify regarding her
allegation of sexual abuse against Anderson; (3) testimony about Anderson’s
conduct toward K.C.; (4) evidence of Anderson’s insistence that Moore take her
sedative medications; and (5) K.C. to testify that Anderson would blow
marijuana smoke in her face prior to the abuse.
1. KRE 404(b)
Relevant evidence is defined as “evidence having 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. Under KRE 402, “[a]ll relevant evidence is admissible” unless
otherwise excluded by the law or our rules of evidence. “Evidence which is not
relevant is not admissible.” KRE 401. However, even relevant evidence may be
excluded “if its probative value is substantially outweighed by the danger of
undue prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence.” KRE 403. Unduly prejudicial evidence has been defined as evidence 5 that “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.” Richmond v.
Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017) (quoting Butler v.
Commonwealth, 367 S.W.3d 609, 615 (Ky. App. 2012)) (internal quotation
marks omitted).
Despite these general rules regarding relevance, “a defendant may not be
convicted on the basis of low character or criminal predisposition, even though
such character or predisposition makes it appear more likely that the
defendant is guilty of the charged offense.” Billings v. Commonwealth, 843
S.W.2d 890, 892 (Ky. 1992). Thus, under KRE 404(b), “evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” The purpose of this Rule is to
avoid an unfair inference that a person’s character as demonstrated by the
commission of other bad acts indicates he likely also engaged in bad acts
relevant to the case. Gasaway v. Commonwealth, 671 S.W.3d 298, 333 (Ky.
2023) (citing KRE 404(a)).
However, KRE 404(b) provides two exceptions in which evidence of other
crimes, wrongs, or acts may be admissible. First, other bad acts evidence may
be admissible if offered to prove something other than an impermissible
inference on the basis of character, “such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” KRE 404(b)(1). Second, such evidence may also be admissible if it is
6 “so inextricably intertwined with other evidence essential to the case that
separation of the two (2) could not be accomplished without serious adverse
effect on the offering party.” KRE 404(b)(2).
In Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994), we set forth the
three factors that a trial court must consider in determining whether to admit
evidence of other crimes, wrongs, or acts under KRE 404(b): relevance,
probativeness, and prejudice. As to relevance, the trial court must consider
whether the proffered evidence is relevant for some purpose other than to prove
the defendant’s criminal disposition. Id. at 889. As to probativeness, the trial
court must consider whether there is sufficiently probative evidence that the
defendant committed the other crime, wrong, or act. Id. at 890. Finally, in
considering prejudice, the trial court must determine whether the potential
prejudice from the admission of the proffered evidence substantially outweighs
its probative value. Id. In considering these factors, the trial court “must apply
[KRE 404(b)] cautiously, with an eye towards eliminating evidence which is
relevant only as proof of an accused’s propensity to commit a certain type of
crime.” Id. at 889.
We review evidentiary rulings under KRE 404(b) for abuse of discretion.
Gasaway, 671 S.W.3d at 331. An abuse of discretion occurs when “the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
With these evidentiary rules in mind, we address each of Anderson’s
arguments in turn.
7 2. K.C.’s Knowledge That Anderson Was Going to Prison
The trial court permitted K.C. to testify that she reported Anderson’s
abuse in June 2014 because, at that time, she had reason to believe that
Anderson was going to prison. K.C. testified that as a result of this knowledge,
she did not have to be afraid of Anderson’s reaction. In allowing reference to
Anderson’s unrelated imprisonment, the trial court specifically required that
the Commonwealth and the witness avoid using the adjective “federal” when
describing Anderson’s imprisonment. Furthermore, at Anderson’s request, the
trial court issued the following admonition to the jury:
The references to the Defendant going to prison are not to be considered as proof of guilt in this case. His service in prison had nothing to do with any case involving sexual offenses, physical violence, or minors or females. The subject matter of that case is totally irrelevant to the matter you are considering in this case.
Anderson argues that the mention of his imprisonment was unduly prejudicial
and that its admission does not pass the Bell test. We disagree.
In the context of sex offense cases, we have held that evidence
concerning the alleged victim’s fear of retaliation from the defendant is relevant
to prove why the alleged victim did not report the alleged abuse sooner. In
Alford v. Commonwealth, 338 S.W.3d 240, 250 (Ky. 2011), this Court discussed
the admissibility of evidence that the defendant had threatened and beaten the
alleged sexual assault victim and the alleged victim’s family members. In
Alford, the defendant argued that the evidence was inadmissible under KRE
404(b), as it was not probative as to whether the rape and sodomy charges
occurred and served only to poison the sentiment of the jury against him. Id.
8 This Court disagreed and held that the evidence concerning the defendant’s
threats of violence was relevant in light of the alleged victim’s testimony that
she was afraid to report the abuse out of fear that defendant would hurt her or
her family. Id.
Where evidence of prior bad acts provides the setting and context for the
discovery of the crimes, it may be inextricably intertwined with the charged
crimes, and therefore properly admissible under KRE 404(b)(2). In Clark v.
Commonwealth, 267 S.W.3d 668, 681 (Ky. 2008), the mother of sexual abuse
victims did not immediately confront her physically abusive cohabitating
boyfriend about sexually abusing the children because she was afraid that he
would harm her. The mother waited until the next day to report him. Id. The
Clark Court held that:
[T]he setting and context of the events surrounding [the mother’s] discovery of the sexual abuse of her children, and her reasons for not contemporaneously confronting [her long-term boyfriend, the] Appellant about it, were germane to the overall sequence of events surrounding the crimes and to the events which led to them being reported to authorities. As such, this evidence was inextricably intertwined with other evidence critical to the case.
267 S.W.3d at 681.
In the present case, K.C.’s knowledge that Anderson was going to prison
was relevant not only because it explained why K.C. reported the abuse when
she did, but also because it provided necessary context concerning the
discovery of the abuse. Similar to the victim in Alford, K.C. stated that she was
afraid of Anderson and what he may do if she were to report the abuse. She
testified that it was not until she learned that Anderson would be going to
9 prison that she felt safe reporting the abuse to her stepmother, Tammy. As we
recognized in Alford, K.C.’s fear of retaliation by Anderson and her knowledge
of his imprisonment was relevant to prove why she reported the abuse when
she did.
Furthermore, similar to Clark, the purpose of K.C.’s testimony regarding
Anderson’s imprisonment was solely to provide context regarding the “overall
sequence of events surrounding the crimes and to the events which led to them
being reported to authorities.” 267 S.W.3d at 681. Excluding the reason why
K.C. reported Anderson’s abuse, after she had been experiencing it for
approximately three years, would have left the jury with “an incomplete and
fragmented picture of the circumstances” surrounding how K.C.’s abuse was
discovered by the authorities. Kerr v. Commonwealth, 400 S.W.3d 250, 263 (Ky.
2013). K.C.’s knowledge of Anderson’s imprisonment, therefore, was clearly
inextricably intertwined with her decision to report his abuse.
The trial court also took various precautions to ensure Anderson was not
unduly prejudiced by the evidence. At trial, the parties were prevented from
using the adjective “federal” when describing Anderson’s prison sentence, and
the trial court admonished the jury to further reduce any potential unfair
prejudice against Anderson. The admonition was written by Anderson’s
attorney and administered without objection from the Commonwealth. The
“jury is presumed to follow the trial court’s admonition.” Doneghy v.
Commonwealth, 410 S.W.3d 95, 107 (Ky. 2013) (quoting Burton v.
Commonwealth, 300 S.W.3d 126, 143 (Ky. 2009)). In this case, it is evident that
10 the trial court did not abuse its discretion in permitting K.C. to testify to her
knowledge of Anderson’s imprisonment, as her testimony was relevant to her
reasoning for reporting the abuse, inextricably intertwined with the context and
discovery of the abuse, and various precautions were taken to ensure the
evidence did not unfairly prejudice Anderson.
3. Evidence of Alleged Sexual Abuse of M.A.
The trial court allowed M.A. to testify regarding her allegation of sexual
abuse against Anderson. Anderson objected to the testimony in a pretrial
motion and, in a hearing on that motion, argued that it was unduly prejudicial
and irrelevant. The trial court disagreed and ruled that the evidence was
admissible. In its ruling on the matter, the trial court determined that the
similarities between M.A.’s allegation and K.C.’s allegation tended to show a
modus operandi and served to prove motive, intent, preparation, plan, and
absence of mistake. On appeal, Anderson argues that M.A.’s allegation of
sexual abuse did not bear sufficient similarities to K.C.’s allegation to show a
modus operandi. We disagree.
Starting with the first Bell factor, we hold that the trial court did not
abuse its discretion in determining that M.A.’s allegations were relevant for a
purpose other than merely proving Anderson’s criminal disposition. In sex
offense cases, this Court has previously upheld the admission of evidence of
prior sexual misconduct as proof of the corpus delicti where the prior
misconduct is sufficiently similar to the charged offense to indicate that both
acts were committed by the same person. Dickerson v. Commonwealth, 174
11 S.W.3d 451, 467–70 (Ky. 2005) (discussing the sufficient commonality
necessary to establish a “signature crime”). To be admissible for this purpose,
the method of the commission of the charged and uncharged acts must be “so
similar and so unique as to indicate a reasonable probability that the crimes
were committed by the same person.” Id. at 468-69 (quoting Adcock v.
Commonwealth, 702 S.W.2d 440, 443 (Ky. 1986)). Where the factual
similarities rise to a level of modus operandi, admitting evidence of the
uncharged child sexual abuse does not impermissibly ask the jury to infer that
the defendant is guilty simply because he has previously engaged in other child
sexual abuse; rather, it permissibly allows for an inference of guilt based
instead upon the striking factual similarity between the charged and uncharged
acts. Newcomb v. Commonwealth, 410 S.W.3d 63, 74 (Ky. 2013).
In Leach v. Commonwealth, 571 S.W.3d 550, 555 (Ky. 2019), this Court
held that evidence that the defendant had previously sexually abused an
eleven-year-old girl was admissible to prove modus operandi in a prosecution
for the sexual assault of a nine-year-old girl. There, while the crimes were not
identical, they were strikingly similar in that both girls were related to
defendant by marriage, of similar ages when defendant perpetrated the abuse,
the sexual abuse in both cases progressed from kissing to fondling, and in both
cases, defendant devised a game to play in the woods behind his house, using
a motor vehicle, to get the girls alone. Id.
Determining whether child sex abuse allegations bear such striking
factual similarities as to demonstrate modus operandi and are thus admissible
12 under KRE 404(b) is “a difficult, fact-specific inquiry” that requires the trial
court to “engage in a searching analysis of the similarities and dissimilarities”
between the allegations. Clark, 223 S.W.3d at 96-97. In turn, this Court must
examine what similarities exist between Anderson’s abuse of K.C. and his
alleged abuse of M.A., such that Anderson’s abuse of both girls constituted a
distinct pattern necessary to qualify for the modus operandi exception. Id. at
98.
Here, M.A. testified that Anderson abused her at the end of the summer
in 2014 when she was visiting him during her summer break from school. This
was the first summer that M.A. had visited Anderson without K.C. present.
Regarding the alleged abuse, M.A. testified that she was sleeping in a room in
Lorraine’s house, when she woke up to someone putting his hands down the
front of her pants and using his fingers to touch her vagina. M.A. testified that
she was shocked to discover it was her father, Anderson. When she asked what
he was doing, he responded by saying “nothing,” told her to go back to sleep,
and left the room. M.A. testified that she called her mother to pick her up early.
This was the last time M.A. visited the property while Anderson was there.
In support of the testimony’s admissibility, the Commonwealth relies
upon the following similarities: both victims were of the same approximate age;
both were bi-racial and bore a remarkable physical resemblance to each other;
Anderson was a father figure to both; and Anderson abused both girls by
approaching them as they slept and rubbing their vaginas under their
pajamas. Under Clark, the mere facts that Anderson touched M.A.’s genitals
13 and that the girls were roughly the same age—only a year and a half apart—
would not justify admission pursuant to the modus operandi exception.
However, the additional facts that Anderson had abused both K.C. and M.A. on
his mother’s property, that he abused each of them in the same manner while
they were asleep without another conscious adult nearby, that the girls bore a
remarkable physical resemblance to each other, and that Anderson acted as a
father figure to both girls established a pattern of conduct “so similar and so
unique as to indicate a reasonable probability that the crimes were committed
by the same person.” Dickerson, 174 S.W.3d at 468-69 (quoting Adcock, 702
S.W.2d at 443).
K.C. and M.A.’s abuse allegations are not identical, and the differences
are worth discussing. The abuse alleged by M.A. was not as extensive as that
perpetrated against K.C. Further, K.C.’s abuse occurred over a period of years,
while M.A.’s alleged abuse occurred on a single day. Importantly, this
difference does not carry much weight, as M.A. did not visit the property
without K.C. present until the summer of M.A.’s alleged abuse and Anderson’s
access to M.A. was limited because M.A. did not live with him full-time. An
additional difference is that M.A.’s alleged abuse occurred in Lorraine’s house,
whereas K.C.’s abuse occurred in Anderson’s house. However, both buildings
were located in close proximity on the same property, and this Court has
previously found that the exact geographic location of the crimes is not
dispositive on the issue. Clark, 223 S.W.3d at 99. Furthermore, “it is not
required that the facts be identical in all respects.” Leach, 571 S.W.3d at 555.
14 Given the similarities of M.A.’s abuse and K.C.’s abuse, we cannot say that the
trial court abused its discretion admitting M.A.’s testimony as relevant to
establish a distinctive pattern of conduct and modus operandi under KRE
404(b).
The second factor of the Bell inquiry is probativeness, which requires us
to determine whether the trial court abused its discretion in finding that a jury
“could reasonably infer that the prior bad acts occurred and that [Anderson]
committed such acts.’” Leach, 571 S.W.3d at 554 (quoting Parker v.
Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)). We perceive no such abuse
of discretion. M.A. testified that she relayed her allegation to her school
counselor when she returned to school a few months after the alleged abuse.
Moreover, M.A.’s allegation was consistent with the time frame and nature of
K.C.’s allegations. Given the willingness of the victims to make the statements
to her school counselor and the consistencies between the allegations, the trial
court did not abuse its discretion by concluding that a jury could believe
Anderson engaged in the conduct alleged by M.A.
Finally, we perceive no abuse of discretion in the trial court’s conclusion
that admission of M.A.’s testimony was not overly prejudicial. In the present
case, it is undeniable that M.A.’s allegation was prejudicial to Anderson.
However, KRE 403 makes clear that for evidence to be excluded on grounds of
prejudice, “the probative value must be substantially outweighed by the
prejudicial effect.” Leach, 571 S.W.3d at 557. The striking factual similarities
between K.C. and M.A.’s claims are highly probative of the ultimate issue in the
15 case—Anderson’s guilt. Accordingly, M.A.’s testimony concerning her allegation
that Anderson had sexually abused her was relevant for a permissible purpose
under KRE 404(b), sufficiently probative, and did not have a prejudicial impact
which substantially outweighed its probative value. The trial court did not
abuse its discretion in admitting M.A.’s testimony.
4. Anderson’s Inappropriate Conduct Toward K.C.
Prior to trial, the Commonwealth notified Anderson that it would seek to
introduce details of how Anderson had “groomed” K.C. as part of the sequence
of events that directly led to her abuse. Anderson objected and claimed that
evidence was more prejudicial than probative. The trial court ultimately ruled
that any testimony regarding the witnesses’ precise observations about
Anderson’s conduct toward K.C. and their relationship, without subjective
commentary, would be permitted. The parties agreed that the term “grooming”
would not be used at trial. There were no objections during trial that either
party violated this agreement.
On appeal, Anderson argues that allowing testimony from various
witnesses concerning his favorable treatment of K.C. and inappropriately close
relationship was highly prejudicial and unnecessary. Anderson claims that
because K.C. testified about how he sexually assaulted her in detail, there was
no need to introduce evidence regarding the sequence of events or preparation
or plan. We disagree.
Evidence of the defendant’s prior conduct may be admissible to prove the
defendant’s planning and preparation to sexually abuse the victim. In Smith v.
16 Commonwealth, we upheld a trial court’s decision to admit evidence that the
defendant had sexually abused the victim on a prior occasion and had the
victim sit on his lap. 636 S.W.3d 421, 437 (Ky. 2021). Furthermore, the mother
of the victim picked out a specific skirt for the victim that permitted the
defendant to sexually assault the victim without obstacle. Id. We noted that the
defendant’s prior acts toward the victim were relevant to show his plan and
preparation for continued sexual abuse of the victim. Id.
Here, various witnesses testified that Anderson seemed to favor K.C. over
his wife and his biological children. M.A. testified that she and K.C. would often
fight because Anderson gave K.C. more attention. Anderson’s aunt, Judith
Carroll, testified that Anderson and K.C. would sleep in the same bed and were
often sitting very close to each other. Moore and K.C. testified that Anderson
would often have K.C. sit on his lap. K.C. also testified that Anderson would
often only bring take-out food home for her, but not Moore.
The evidence in this case was relevant to show the “sequence of events
that led directly to” Anderson’s abuse of K.C. Id. The witnesses’ testimony
regarding Anderson’s favorable treatment of K.C. and their close relationship
was necessary “to complete a picture by providing context and meaning for the
central events, not to paint other pictures of criminality or misbehavior.” Kerr,
400 S.W.3d at 263. Additionally, similar to Smith, Anderson’s conduct toward
K.C. was relevant to illustrate his preparation and plan to maintain proximity
with K.C. and continue the abuse. The probative value of this evidence is not
substantially outweighed by any prejudice. The trial court curbed any undue
17 prejudice to Anderson by limiting the witnesses’ testimony to their objective,
personal observations and ensuring that the parties did not use the term
“grooming.” For these reasons, we cannot say that the trial court abused its
discretion in admitting this evidence.
5. Anderson’s Insistence that Moore Take Her Sedative Medication
The trial court permitted the Commonwealth to introduce evidence that
Anderson regularly encouraged Moore to take her prescribed, sedative
medications in the evening before he sexually abused K.C. In Anderson’s
pretrial objection to this evidence, he argued that its probative value was
substantially outweighed by its potential prejudicial value. In response, the
Commonwealth argued that the evidence was relevant to prove Anderson’s
common scheme or plan to encourage Moore to consume her sedative
prescriptions and thus causing her to be unaware of her surroundings and
unable to interrupt Anderson’s subsequent sexual abuse of K.C. However, on
appeal, Anderson seems to abandon his pretrial argument and now alleges that
the Commonwealth did not show the probative value of this evidence because it
did not enter any medical or pharmacy records indicating that Moore was on
the drug, nor did it provide testimony from a pharmacological expert
concerning the effects of the drug.
Anderson’s argument misunderstands the probative inquiry required by
KRE 404(b). As noted above, when analyzing the probative value of prior bad
acts evidence, we must determine whether the trial court abused its discretion
in finding that a jury “could reasonably infer that the prior bad acts occurred
18 and that [Anderson] committed such acts.” Leach, 571 S.W.3d at 554 (quoting
Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)). The inquiry under
KRE 404(b), therefore, is not whether Moore’s medications had the alleged
impact on her consciousness, but instead whether the jury could reasonably
infer that Anderson’s alleged bad act (i.e., his insistence that Moore take her
medications) occurred.
Taking this distinction into account, we perceive no abuse of discretion
by the trial court. Here, both K.C. and Moore testified that Anderson would
routinely insist that Moore take her nightly medications. Moore also testified
that Anderson’s insistence was often a point of contention between them, and
that they would frequently argue about his constant reminders to Moore that
she take her medications. Anderson himself admitted that he would frequently
urge Moore to take her medications. Accordingly, there was no dispute that
Anderson routinely insisted Moore take her medications, and we see no reason
why the probative inquiry is not met here.
Anderson makes a brief, conclusory argument that this evidence “was
also highly prejudicial. [Anderson] was portrayed not only as a sexual abuser
but also as a drug pusher, making his wife take a drug that rendered her dead
to the world.” The mere fact that Anderson insisted that Moore take her
prescribed medication is not, itself, unduly prejudicial. Further, this evidence
is highly relevant to prove Anderson’s common scheme or plan to sexually
abuse K.C. Anderson would insist Moore took her medications, because he
knew those medications would render Moore unaware of her surroundings.
19 This would ensure that Moore was unable to intervene in Anderson’s
subsequent sexual abuse of K.C. In turn, we conclude that the trial court did
not abuse its discretion in admitting this evidence.
6. Anderson’s Act of Blowing Marijuana Smoke in K.C.’s Face
At trial, the trial court permitted K.C. to testify about occasions in which
she would be sleeping, or pretending to be asleep, and Anderson would wake
her up by blowing marijuana smoke in her face. The Commonwealth argues
that the evidence was relevant to Anderson’s common plan or scheme and that
it was inextricably intertwined with the sexual abuse. Anderson, however,
argues that this evidence was irrelevant and highly prejudicial.
It is well established that evidence of prior bad acts is allowed when
these acts have a special relationship to the offense charged and tend to prove
the defendant engaged in a “common scheme or plan.” Pendleton v.
Commonwealth, 685 S.W.2d 549, 552 (Ky. 1985). Evidence of prior bad acts is
admissible under this theory when those acts are “part and parcel” of a greater
endeavor that includes the charged offense. English, 993 S.W.2d at 945. The
hallmark of such evidence is that all parts of the common scheme or plan “tend
to a common end.” Id. at 943 (citing Raymond v. Commonwealth, 96 S.W. 515
(Ky. 1906) (Hobson, C.J., dissenting)).
In Gilbert v. Commonwealth, 838 S.W.2d 376, 378 (Ky. 1991), we
considered the admissibility of evidence that one of the defendants, the
stepfather of the victims, had given his stepdaughters marijuana and alcohol
and forced them to watch sexually explicit movies. There, Johnny Gilbert and
20 Arletha Rose Gilbert were convicted of various sex offenses against Arletha’s
three biological daughters. Id. at 377. At the time of the abuse, Johnny was the
stepfather to the three teenage daughters, aged seventeen, sixteen, and fifteen.
Id. In addition to evidence that Johnny gave the girls marijuana and alcohol,
there was also testimony that indicated that he and Arletha had told the girls
that if they did not watch the pornographic movies, Johnny and Arletha would
force the girls to remove their clothing and make them perform the same acts
as depicted in the films. Id. at 378. We held that the evidence that Johnny gave
the girls marijuana and alcohol was properly admitted, regardless of its
potential prejudicial effect, because it reflected a part of the overall scheme to
aid the stepfather in achieving his goal of engaging in sexual intercourse with
his three stepdaughters. Id.
In the present case, K.C.’s testimony that Anderson would blow
marijuana smoke in her face was relevant to reflect that it was often a step in
Anderson’s overall scheme to sexually abuse her. Specifically, K.C. testified
that she would frequently sleep with her head under a blanket and pillows. She
then stated that there were multiple occasions when she would be sleeping, or
pretending to be asleep, and Anderson would blow marijuana smoke into her
face through an airhole in the blanket. K.C. expressly testified that this
particular act would often precede sexual abuse by Anderson. This initiating
act was thus “part and parcel” of Anderson’s greater plan to abuse K.C.
English, 993 S.W.2d at 945. Additionally, similar to the evidence at issue in
Gilbert, Anderson’s repeated act of blowing the marijuana smoke into K.C.’s
21 face “indicate[d] a pattern of conduct and motive for forcing the young [woman]
into adult sexual activity.” 838 S.W.2d at 379.
Furthermore, we have long held that “[j]uries do not have to perform
their functions of fact-finding in a vacuum.” Id. Instead, “[i]n order to determine
exactly what did or did not happen at any particular stage in the sequence, it
was necessary that the jury see the entire picture.” Id. (quoting Ware v.
Commonwealth, 537 S.W.2d 174, 179 (Ky. 1976), overruled on other grounds
in Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016)). Thus, K.C.’s
testimony was highly probative in allowing the jury to view “the entire picture”
or rather, the entirety of the steps involved in Anderson’s common scheme to
sexually abuse K.C.
Furthermore, the probative value of this evidence was not substantially
outweighed by any prejudicial effect. Anderson is correct that any mention of
his marijuana use could be highly prejudicial. However, the trial court also
recognized this fact, and limited mention of Anderson’s marijuana use only to
the occasions described by K.C. in order to limit any unfair prejudice to
Anderson. As a result, the trial court did not abuse its discretion in admitting
this evidence under KRE 404(b).
B. The trial court did not abuse its discretion by denying Anderson’s pretrial motion for continuance. Anderson next argues that the trial court committed a reversible error
when it denied his April 13, 2023, motion to continue his trial, which was
scheduled to begin eleven days later on April 24, 2023. We observe that
22 Anderson’s pretrial motion adequately preserved this issue for our review. See
Helmick v. Commonwealth, 686 S.W.3d 158, 162 (Ky. 2024).
The record suggests that Anderson’s motion for continuance was largely
a result of the Commonwealth’s newfound intention to introduce evidence of
Anderson’s “other crimes” through the testimony of his biological daughter,
M.A. Indeed, roughly two weeks earlier, the Commonwealth had provided
notice pursuant to KRE 404(c) that it intended to introduce evidence proving
that Anderson had previously abused M.A. In response, Anderson requested
that the trial court either exclude M.A.’s testimony or order a two-month
continuance to permit “further investigation” of M.A.’s allegations. At a hearing
on the matter, the trial court asked Anderson’s defense counsel what actions
she would take to establish Anderson’s defense during a two-month
continuance, and defense counsel failed to provide any specifics.
On April 17, 2023, the trial court entered an order denying Anderson’s
motion on the basis that, “Defense counsel could not articulate a specific
action that could be taken after a continuance that could not be taken between
now and the scheduled trial.” The trial court further observed that Anderson
had little reason to be surprised by the Commonwealth’s decision to introduce
M.A.’s testimony because Anderson had separately been indicted for crimes he
allegedly perpetrated against M.A.
The Rules of Criminal Procedure (“RCr”) permit that, “The Court upon
motion and sufficient cause shown by either party, may grant a postponement
of the hearing or trial.” RCr 9.04. Whether to grant a motion for postponement
23 or continuance is a decision left to the discretion of the trial court, and one
that will only be disturbed on appeal if the trial court has abused its discretion.
Taylor v. Commonwealth, 611 S.W.3d 730, 735 (Ky. 2020) (citing Hilton v.
Commonwealth, 539 S.W.3d 1, 10–11 (Ky. 2018)); Slone v. Commonwealth, 382
S.W.3d 851, 856 (Ky. 2012). A trial court abuses its discretion when its
decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” English, 993 S.W.2d at 945.
Of course, whether a continuance is warranted in a particular case is
dependent on the “unique facts and circumstances” of that case. Hilton, 539
S.W.3d at 11 (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky.
1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d
534 (Ky. 2001)). And when assessing whether to grant a motion for
continuance, this Court has instructed the Commonwealth’s trial courts to
balance and consider an array of factors, including: “length of delay; previous
continuances; inconvenience to litigants, witnesses, counsel and the court;
whether the delay is purposeful or is caused by the accused; availability of
other competent counsel; complexity of the case; and whether denying the
continuance will lead to identifiable prejudice.” Snodgrass, 814 S.W.2d at 581
(citing Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985)).
Of all of the Snodgrass factors, however, the moving party’s ability to
identify prejudice to his or her case is “especially important.” Bartley v.
Commonwealth, 400 S.W.3d 714, 733 (Ky. 2013). “The movant . . . must be
able to state with particularity how his or her case will suffer if the motion to
24 postpone is denied.” Id. (citing Hudson v. Commonwealth, 202 S.W.3d 17, 23
(Ky. 2006)). “Conclusory or speculative contentions” are insufficient. Id.
On appeal, Anderson argues that each of the seven Snodgrass factors
weighs in his favor. He asserts that his proposed two-month continuance was
not an “extraordinary inconvenience” to anyone, that the Commonwealth is
largely to blame for the trial’s previous continuances, and that the
Commonwealth’s decision to introduce M.A.’s testimony made his defense
“more complicated” less than a month before trial.
Here, it appears that the trial court only expressly considered two of the
seven Snodgrass factors in ruling on Anderson’s motion for continuance—the
proposed length of delay and identifiable prejudice. But because the record
makes clear that Anderson’s case was punctuated by delay, and that Anderson
failed to identify what prejudice might result from the trial court’s denial of his
motion, we cannot say that the trial court abused its discretion in this
instance.
In April 2023, Anderson had been awaiting trial for more than two years
after having been originally charged via information in December 2020.
Throughout those two years, Anderson’s trial—originally scheduled for July 27,
2021—was postponed on four separate occasions. Most notably, the trial court
ordered a one-year continuance, postponing the trial from March 2022 to
March 2023, after the Graves County Courthouse was severely damaged by a
violent tornado. At Anderson’s request, the trial court ordered a subsequent
continuance, postponing the trial from March 8, 2023, to April 24, 2023, after
25 the grand jury returned a new, superseding indictment charging Anderson with
eighteen distinct crimes. On appeal, Anderson makes no argument that the
trial court’s relief in that instance left him insufficiently prepared for his April
2023 trial date. Accordingly, Anderson’s April 13, 2024, request for a two-
month continuance—premised solely on the Commonwealth’s intention to
introduce testimony from M.A.—would have been the fifth time Anderson’s trial
had been postponed. Obviously, the previous significant delays to Anderson’s
trial weighed against granting his motion.
Most fatal to Anderson’s claim on appeal, however, is that he failed to
show the trial court—with particularity—how his defense would be prejudiced
if his motion for continuance was denied. In his motion for continuance,
Anderson argued that the Commonwealth’s “surprise” decision to introduce
M.A.’s testimony would force him to “try [two] cases at one time,” and that his
counsel “ha[d] not had time to investigate this announced witness.” But when
questioned by the trial court as to what steps he would take to fortify his
defense during his proposed continuance—i.e., what steps he could not feasibly
take in the remaining time before trial—Anderson failed to offer any
particulars. Anderson’s counsel offered only that, “I can’t say what I don’t
know. I’m just saying that it would allow us more time to be better prepared for
trial.” As previously stated, however, such “speculative” concerns are generally
insufficient to warrant a continuance. Bartley, 400 S.W.3d at 733. While a
continuance can be an appropriate remedy to ameliorate the prejudicial effect
of what a party perceives to be “surprise” evidence, the moving party “must be
26 able to state with particularity how his or her case will suffer if the motion to
postpone is denied.” Id. (citing Hudson, 202 S.W.3d at 23). When a party
moving for a continuance does not make a full-throated argument to the trial
court, it becomes increasingly difficult for this Court to say that the trial court
abused its discretion in denying that motion.
Perhaps even more damaging to Anderson’s argument on appeal is that
he has failed to identify any prejudice that actually resulted from the trial
court’s alleged error. Even now, Anderson has not identified what additional
actions he might have taken to more thoroughly investigate M.A.’s testimony
with the benefit of two-months’ additional time. Nor does he allege that he was
unable to effectively cross-examine M.A. at trial. Accordingly, it is clear the trial
court did not abuse its discretion in this instance; its decision was not
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
C. The trial court’s failure to sua sponte order a continuance on the morning of trial did not constitute palpable error.
Anderson next argues that the trial court made a reversible error when it
failed to order a continuance after learning that Anderson’s defense counsel
had not watched a video recording of his previous interview with police prior to
trial.
On the eve of Anderson’s trial, his defense counsel notified the
Commonwealth that she could not access a recording of Anderson’s 2014
interview with the Kentucky State Police that she had received in discovery.
The next morning—the first day of Anderson’s trial—Anderson’s defense 27 counsel intimated to the trial court that she had not watched the recording in
question, that she had “just recently” received the recording from the
Commonwealth, that she could not open the digital file that had been sent to
her, and that the recording purportedly contained exculpatory evidence. 1 The
Commonwealth, however, suggested that the defense had previously received
copies of the recording in question on two occasions—once in August 2022 and
once in February 2023. Perhaps recognizing the predicament at hand, the
Commonwealth also broached the subject of ordering a continuance to the trial
court. The Commonwealth did, however, make clear that it was not seeking a
continuance.
Despite knowing that she had not yet reviewed evidence that her client
perceived as exculpatory on the morning of trial, Anderson’s defense counsel
failed to make a clear motion for continuance. Instead, Anderson’s defense
counsel simply pleaded that the trial court allow her to listen to and discuss
the recording with Anderson. The trial court finally suggested that the parties
proceed to trial and that the defense listen to the recording during that day’s
lunch break—a suggestion that neither party expressly objected to.
After the parties conducted voir dire, the jury was excused for the day,
and the defense was able to successfully access and watch the recording
1 It appears from the record that officials from the Kentucky State Police and
the Cabinet for Health and Family Services interviewed Anderson in 2014 regarding K.C.’s allegations of abuse. During the parties’ pretrial colloquy with the trial court regarding that recorded interview, Anderson’s defense counsel suggested that Anderson had made statements denying K.C.’s allegations during the interview. Upon our review of the record, it seems that the defense perceived Anderson’s prior out-of- court denials to be exculpatory evidence relevant to his defense.
28 during the lunch break. Later that afternoon, the parties and the trial court
discussed whether portions of the recording could be admitted as evidence at
trial. The defense expressed a desire to introduce some portions of the
recording, however, no portion of the recording was ever admitted. 2 The
defense did not request a continuance at this time.
On appeal, Anderson again evokes the Snodgrass factors and argues that
the trial court erred in failing to order a continuance in this instance. More
specifically he asserts that (1) any delay occasioned by a continuance would
not have been lengthy, (2) any delay would be attributable solely to his defense
counsel, not him, and (3) he suffered identifiable prejudice as a result of the
trial court’s alleged error because, “There were facts to be absorbed by the
defense attorney and discussions to be had with [Anderson].” Anderson argues
that the trial court should have postponed his trial “for at least a few days.”
First, we note that Anderson failed to properly preserve his arguments for
our appellate review, because he did not make his desire for a continuance
known before the trial court and only raises that issue now for the first time on
appeal. See RCr 9.22; Cf. Helmick, 686 S.W.3d at 162 (holding that Appellant
properly preserved issue of continuance by pretrial motion). While the
Commonwealth did indeed raise the idea of ordering a continuance to the trial
2 During the defense’s case, Anderson did attempt to introduce a portion of the
recording—assumedly to rebut the trial testimony of a social worker who had participated in his 2014 interview with police and testified to Anderson’s prior out-of- court statements. It appears that Anderson was unable to successfully introduce that portion of the recording due to technical difficulties.
29 court during the parties’ pretrial colloquy, the Commonwealth made its
position clear—it was not seeking a continuance. At that opportune moment,
the defense abjectly failed to broadcast its desire for a continuance.
Accordingly, pursuant to RCr 10.26, we will only review Anderson’s claim
for “palpable error.” An error is palpable if it is “easily perceptible, plain,
obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343,
349 (Ky. 2006). “When an appellate court engages in a palpable error review, its
focus is on . . . 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). “Implicit in the concept of palpable
error correction is that the error is so obvious that the trial court was remiss in
failing to act upon it sua sponte.” Lamb v. Commonwealth, 510 S.W.3d 316,
325 (Ky. 2017).
There was no palpable error here. While it is regrettable that Anderson’s
defense counsel failed to review evidence with her client in a timely manner,
her error should not be imputed to the trial court. As previously stated, the
potential for “identifiable prejudice” is a principal consideration in a trial
court’s decision whether to order a continuance. Here, the potential for
prejudice arising from defense counsel’s failure to review the recording of
Anderson’s 2014 interview with police was not so immediately and obviously
perceptible so as to require the trial court to sua sponte order a continuance.
Further, Anderson’s brief fails to convince this Court that any identifiable
30 prejudice actually occurred as a result of the trial court’s refusal to continue
the trial.
While it would have undoubtedly been the best practice for Anderson’s
defense counsel to review all of the evidence she had received in discovery prior
to the eve of trial, the evidence at issue here—a recording of Anderson’s 2014
interview with police—does not appear to have been particularly important to
Anderson’s defense or the Commonwealth’s prosecution. When the parties first
discussed the recording on the morning of the first day of trial, the defense
could only summarily assert that the recording was exculpatory because it
contained footage of Anderson’s prior out-of-court statements denying K.C.’s
allegations—evidence that the Commonwealth correctly recognized would
generally be barred by the rule against hearsay. See KRE 801. The defense also
suggested that the recording contained references to the fact that Anderson
had previously been incarcerated on separate criminal charges, which was
evidence that Anderson had already previously objected to. The Commonwealth
also told the trial court that Anderson had made certain “concessions” in his
2014 interview with police about previously rubbing K.C.’s feet and walking in
on her in the shower. The parties had, however, already discussed that
evidence in a prior hearing; so this too was not “surprise” evidence to
Anderson. Accordingly, from these preliminary descriptions alone, we cannot
say that the trial court should have immediately recognized that failing to order
a continuance, and allowing the trial to proceed, would result in identifiable
prejudice to Anderson’s defense.
31 Most damaging to Anderson’s claim on appeal, however, is that he has
failed to identify any appreciable prejudice actually occasioned by the trial
court’s refusal to sua sponte order a continuance on the first day of his trial.
He argues only that:
[Anderson] talked to police in 2014. While he denied the allegations generally, there were, as the Commonwealth pointed out, some concessions in the interview like lotion on feet, sleeping in the same bed, etc. In other words, this was not an interrogation where the defendant said, “I didn’t do it,” and then shut his mouth. There were facts to be absorbed by the defense attorney and discussions to be had with Bobby. Defense counsel could not even figure out how to play a portion of the tape for the jury.
Even with the benefit of hindsight, Anderson fails to articulate the significance
of his recorded interview with police to his defense. He does not identify what
actions he would have taken to bolster his defense if the trial court had ordered
a continuance. And Anderson does not even explain how his defense counsel’s
failure to watch the recording prior to trial contributed to his conviction—
presumably because no portion of the recording was ever admitted into
evidence. Accordingly, we cannot say that the court committed a palpable error
here. We have not identified any error “so manifest, fundamental and
unambiguous that it threaten[ed] the integrity of the judicial process.” Martin,
207 S.W.3d at 5.
III. CONCLUSION
For the foregoing reasons, this Court affirms the judgment of the Graves
Circuit Court.
All sitting. Bisig, Conley, Goodwine, Keller, Nickell and Thompson, JJ.,
concur. Lambert, C.J., concurs in result only without opinion. 32 COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Emily Holt Rhorer Kayley Valentien Barnes Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell M. Coleman Kentucky Attorney General
James Daryl Havey Assistant Attorney General