Clyde Martin v. Commonwealth of Kentucky

Opinion

IMPORTANT NOTICE

“NOT TO BE PUBLISHED OPINION”

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.

RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2025-SC-0419-MR

CLYDE MARTIN APPELLANT

ON APPEAL FROM BUTLER CIRCUIT COURT V. HONORABLE TIMOTHY R. COLEMAN, JUDGE NO. 24-CR-00043

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING

A Butler County jury convicted Clyde Martin of four counts of first-degree sexual abuse (victim under 12) and of being a first-degree persistent felony offender and recommended a 20-year sentence. The trial court sentenced Martin in accordance with the jury’s recommendation. Martin appealed, alleging that the trial court erred in denying his motion for a directed verdict. For the reasons below, we affirm.

BACKGROUND

On March 23, 2024, nine-year-old I.A. asked her mother, Drew, if she could spend the night with her aunt, Lana, Drew’s sister. Drew agreed, and Lana picked up I.A. around 11:00 a.m. and took her to the home she shared with Martin, her boyfriend of six years. Lana and I.A. spent the rest of the day together and drove to Bowling Green for dinner that evening.

That night, after Lana was asleep, I.A. testified that she went to bed on a cot set out for her in Lana’s room. I.A. watched videos on Lana’s phone before she fell asleep. At some point, I.A. woke up to use the bathroom. She left Lana’s phone on the bed when she got up. After I.A. used the bathroom, she went into the living room. Martin was watching television. I.A. joined him. As they watched television, Martin reached over, took I.A.’s hand, and held it for approximately two minutes. He then began touching her breasts. I.A. said that Martin then ran his hand down her back and touched her buttocks. Martin then began touching I.A.’s vagina through her clothes.

I.A. testified that at that point, Martin left and went outside. She did not know why he went outside or what he did out there. When Martin came back in, he told her he was cold and asked her to come sit on his lap. Martin told I.A. she could pick a movie to watch. She did, and he pulled a blanket over them. I.A. said he touched her buttocks when he scooted her back on his lap. When Martin told I.A. he was warm, I.A. got off his lap and went back into Lana’s bedroom.

The next morning, Lana made breakfast and then took I.A. to church, where Drew picked her up. Drew testified that she asked I.A. several times whether anything was wrong because she could tell that “something was up,” but I.A. would not say what was wrong. The next day, Drew returned I.A. to her father under an existing visitation schedule, and I.A. remained with him until the following Sunday, which was Easter.

3

I.A. celebrated Easter with Drew’s family who gathered at I.A.’s great-

grandmother’s house, including I.A.’s aunts, Lana and Corey. I.A. testified that she had not been able to forget what Martin had done to her all week but had been afraid to tell her father. She said she feared her father would kill Martin if he found out what Martin had done to her and would go to jail. Ultimately, I.A. decided to tell Lana what Martin had done.

Before dinner, I.A. told Lana and Corey that Martin had touched her in three places he was not supposed to. As they were talking, Drew emerged. She had noticed I.A. was missing and went looking for her. She testified that she found I.A. with Lana and Corey, and that all three were crying. She asked what was going on, and I.A. told her what Martin had done. Lana wanted to confront Martin immediately, but Drew said she needed to talk to I.A.’s father first.

Lana then left with Corey to return to her house and confront Martin.

Lana testified that Martin told her I.A. got up during the night because she was scared, sat on the couch, and watched part of a movie with him. Corey confirmed that this was what Martin told Lana, and that Martin said I.A. did not like the movie, so she went back to bed. After the confrontation, Martin told Lana to get her stuff and get out of his house. Lana gathered some of her things and spent the night with Corey but went back to Martin’s the next day.

Drew called I.A.’s father and told him about I.A.’s allegations. They decided to go to the sheriff’s office the same day. The sheriff’s office referred the case to Trooper Brent Davis of the Kentucky State Police. Trooper Davis

4

arranged for I.A. to be interviewed by the Child Advocacy Center. He also spoke with Martin about the allegations.

In contrast to what he told Lana and Corey earlier, Martin told Trooper Davis that I.A. never came in to watch a movie or sit on the couch with him. Martin testified that after Lana was asleep, I.A. came through the living room to get a drink from the kitchen and had a cellphone with her. He claimed that she had never sat on the couch with him but might have stood by it for a minute before going back to bed. He adamantly denied ever touching I.A.

On June 18, 2024, a Butler County grand jury indicted Martin on four counts of first-degree sexual abuse (victim under 12). On March 18, 2025, a superseding indictment added a count of being a first-degree persistent felony offender. A Butler County jury convicted Martin on all counts and recommended a 20-year sentence. The trial court sentenced Martin in accordance with the jury’s recommendation. This appeal followed.

ANALYSIS

Martin’s sole allegation on appeal is that the trial court erred by denying his motion for a directed verdict because I.A.’s testimony describing her abuse by Martin was uncorroborated and, at the same time, so incredible or improbable as to be patently untrue. Martin contends he properly preserved his argument. The Commonwealth contends he did not properly preserve it and that he did not seek palpable error review under Kentucky Rules of Criminal Procedure (RCr) 10.26. The Commonwealth contends that Martin’s reason for seeking a directed verdict was “lack of proof of gratification,” not lack of

5

corroboration or that I.A.’s testimony was so incredible or improbable as to be patently untrue. “Fundamental to the concept of preservation of trial error in any context is that the trial judge was explicitly made aware of the action desired by the party.” Smith v. Commonwealth, 410 S.W.3d 169 (Ky. 2013). Even if Martin’s argument is preserved, the Commonwealth contends that the trial court did not err in denying Martin’s motion for a directed verdict. We agree.

Kentucky Rule of Civil Procedure (CR) 50.01 states, in pertinent part, “[a]

motion for a directed verdict shall state the specific grounds therefor.” CR 50.01 has previously been applied to criminal cases and “its requirement of ‘specific grounds’ must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal.” Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005). The failure to identify a particular ground in a motion for directed verdict forecloses appellate review of the trial court’s denial of the motion except to the extent that palpable error is shown. McCleery v. Commonwealth, 410 S.W.3d 597, 601-02 (Ky. 2013) (citing Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004)); RCr 10.26. See also Commonwealth v. Jones, 283 S.W.3d 665, 669 (Ky. 2009) (A directed-verdict motion must state “specific grounds for relief and should identify which elements of the alleged offense the Commonwealth has failed to prove.”).

Under KRS 510.110(1)(b)2, a person is guilty of first-degree sexual abuse when he engages in sexual contact with a person who is incapable of consent because she is less than 12 years old. “Sexual contact” is defined as “the

6

touching of a person’s intimate parts or the touching of the clothing . . . intended to cover . . . a person’s intimate parts, if that touching can be construed by a reasonable person as being done . . . [f]or the purpose of sexual arousal or gratification of either party.” KRS 510.010(7)(a). “The burden is on the Commonwealth in a criminal case to prove every element of the charged offense beyond a reasonable doubt and . . . the failure to do so is an error of Constitutional magnitude.” Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009).

At the conclusion of the Commonwealth’s case, and later, when the defense rested, Martin moved for a directed verdict. Martin argued that the Commonwealth failed to show that he touched I.A. for the purpose of sexual gratification, which is an element of sexual abuse. KRS 510.010(7)(a). Martin did not argue that I.A.’s testimony could not serve as the basis for a conviction without corroboration because it was too improbable. Though Martin made a motion for a directed verdict that satisfied the specificity requirement of Kentucky’s jurisprudence and CR 50.01, he abandoned that argument for a new one on appeal: that I.A.’s testimony describing Martin’s abuse was uncorroborated and, at the same time, so incredible or improbable as to be patently untrue.

In Henson v. Commonwealth, this Court held that [appellate courts] are “not at liberty to review alleged errors when the issue was not presented to the trial court for decision.” 20 S.W.3d 466, 470 (Ky. 1999). Martin failed to argue before the trial court that I.A.’s testimony describing Martin’s abuse was

7

uncorroborated and, at the same time, so incredible or improbable as to be patently untrue. This error is unpreserved, and we are not at liberty to review alleged errors when the issue was not presented to the trial court for a decision. Henson, 20 S.W.3d at 470 (citing McDonald v. Commonwealth, 554 S.W.2d 84 (Ky. 1977)).

This Court has held that where a directed verdict motion was not properly preserved at trial, the issue is subject to review on appeal not under the Benham standard 1 but under the palpable error standard of RCr 10.26. Relief may only be granted if the error is “easily perceptible, plain, obvious and readily noticeable,” affects “the substantial rights of the defendant,” and results in manifest injustice that is so “fundamental and unambiguous that it threatens the integrity of the judicial process.” Commonwealth v. Moore, 664 S.W.3d 582, 592 (Ky. 2023).

Martin argues that I.A.’s testimony lacked corroboration and at the same time was so incredible or improbable as to be patently untrue. As noted above, this issue was not properly preserved, and Martin did not request palpable error review. Even if he had, Martin loses under both standards of review. The trial court did not err, palpably or otherwise. “Just as we decline to dine upon this new can of worms submitted to us by [Martin], we decline to open a third

1 Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). Therein, this Court reiterated

the well-established rule that where a directed verdict has been preserved in the trial court, the question on appeal is whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

8

can of worms by grossly expanding the scope of our palpable error review.” Henson, 20 S.W.3d at 471.

It is well established that the uncorroborated testimony of the victim in a sex crime is sufficient to sustain a conviction, if the proof is clear and convincing and the surrounding circumstances either point to the probable guilt of the defendant or, at least, indirectly corroborate the victim’s testimony. Carrier v. Commonwealth, 356 S.W.2d 752, 754 (Ky. 1962). “Corroboration in a child sexual abuse case is required only if the unsupported testimony of the victim is ‘contradictory, or incredible, or inherently improbable. Otherwise, discrepancies in the victim's testimony are matters of credibility going to the weight to be given by the jury to the child’s testimony.” Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001) (citations omitted).

Thirty years after Carrier, this Court considered a trial court’s denial of a directed-verdict motion where the defendant was charged with raping his stepdaughter. Commonwealth v. Cox, 837 S.W.2d 898, 900 (Ky. 1992). In Cox, the defendant claimed that the victim’s account of her rape was improbable. This Court noted that there was “no behavior [by the victim] that is inconsistent with the rules of ‘ordinary behavior,’ in light of the alleged sexual abuse.” Id.

Martin argues that I.A.’s allegations lack even a scintilla of corroboration —no eye or ear witnesses; no audio and/or video evidence; no medical proof; no confession or admission; and Martin denied the allegations. Martin’s claim that I.A.’s testimony was so “intrinsically improbable” that he was entitled to a

9

directed verdict is because Lana gave I.A. her cellphone to play with before Lana went to bed. Martin argues that although I.A. must have had this cellphone with her the rest of the night, at no point did she call anyone for help or wake her aunt up and tell her what had happened. Martin claims that “I.A. had the access, the means, the ability, and the maturity to simply dial three numbers—911—and report what had happened, but she did not do so.” Martin ignores the fact that I.A. testified that she left the phone in her aunt’s bedroom when she got up to use the bathroom and thus did not have it with her when Martin sexually abused her in the living room. He seems to imply that this Court should just accept as true his conflicting testimony that I.A. had the phone with her in the living room.

Notwithstanding whether I.A. had the phone with her in the living room, Martin is arguing that a nine-year-old little girl’s failure to call 911 minutes after she had been sexually abused by her aunt’s boyfriend and while her abuser was still present in the house with her made her testimony “highly improbable” and “calls it into question.” But that argument ignores Cox, which held that there is “no behavior [by the victim] that is inconsistent with the rules of ‘ordinary behavior,’ in light of the alleged sexual abuse.” 837 S.W.2d at 900.

Here, I.A. acted abnormally prior to telling her aunts, Lana and Corey, what happened. When I.A. told her aunts what Martin did to her, the three of them cried. She never wavered. She testified consistently at trial. I.A.’s testimony did not need to be corroborated just because she did not call for help

10

as soon as Martin left the room. In fact, Martin’s counsel did not make this argument at any point during the trial.

During his closing argument, defense counsel argued that the Commonwealth had not proven its case beyond a reasonable doubt because there were two conflicting accounts. When Martin’s counsel went over I.A.’s testimony in his closing argument, he did not argue that it was inherently improbable or unreliable. Instead, he told the jury that it had an “unenviable task,” with two conflicting accounts. He argued that two conflicting stories “cannot be beyond a reasonable doubt.” If that were indeed the standard, there would rarely be any criminal convictions. Defense counsel acknowledged to the jury that the case came down to the credibility of the witnesses and that I.A.’s testimony, including her reasons for not reporting immediately, were “matters of credibility going to the weight given by the jury to [I.A.’s] testimony.” Cox, 837 S.W.2d at 900. Defense counsel concluded that “[a]t the end of the day it was two people with their testimony.” The trial court recognized that as well and properly denied Martin’s motion for a directed verdict. The trial court did not err, palpably or otherwise.

CONCLUSION

For the foregoing reasons, we affirm the Butler Circuit Court’s September 9, 2025 final judgment and sentencing order.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and Nickell, JJ., concur. Thompson, J., concurs in result only.

11

COUNSEL FOR APPELLANT:

Matthew J. Baker Matthew J. Baker Law Office

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General