RENDERED: JULY 7, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0625-MR
DONALD HOSKINS APPELLANT
APPEAL FROM TRIMBLE CIRCUIT COURT v. HONORABLE JERRY D. CROSBY, II, JUDGE ACTION NO. 19-CR-00032
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
COMBS, JUDGE: In this criminal case, the Appellant, Donald Hoskins (Hoskins),
appeals his conviction of two counts of sexual abuse in the first degree and his
sentence of 15-years’ imprisonment.
Hoskins was indicted for three counts of first-degree sexual abuse of a
victim under 12 years of age. In 2009, Hoskins’s longtime friend, Jeana, was
divorced and needed a place to stay. Hoskins allowed Jeana; her two sons; and her
then ten-year-old daughter, H.L., to move in with him. Jeana and her three children lived with Hoskins from January 2009 until April 2010. After they moved
out, Jeana remarried. Her husband, Mickey Gonterman, is a Kentucky State Police
(KSP) Trooper.
Some ten years later, in 2019, H.L. disclosed to her mother, Jeana,
that Hoskins had sexually assaulted her on three occasions beginning in January
2009. The next day, March 30, 2019, Jeana confronted Hoskins about the
allegations, which he denied. Later that day, Hoskins texted Jeana’s husband,
Mickey. The two men met in a school parking lot to talk.
Mickey was in his personal vehicle and recorded the conversation on
his cell phone. In that recording, Hoskins admitted to being drunk and thought that
maybe his penis fell out of his boxer shorts when he reached over to get the
television remote from H.L. Ultimately, Hoskins admitted having put H.L.’s hand
on his penis -- once. Hoskins did not think that it could have happened more than
twice or three times “at the most.” Hoskins knew that it was wrong. Hoskins and
Mickey met again in the parking lot on April 1, 2019, and that conversation was
also recorded. Hoskins said he thought that it happened “at the most three” times.
Both recordings were played for the jury.
On April 3, 2019, Jeana and Mickey met with Hoskins in the parking
lot. That conversation was also recorded and was played for the jury. Hoskins
said that the first time was inadvertent -- that he was reaching for the television
-2- remote while in his underwear. Hoskins admitted to putting H.L.’s hand on his
penis twice. That day, Hoskins sent Mickey a text message apologizing to H.L.
and Jeana. That message was shown and was also read to the jury during Mickey’s
testimony.
KSP Detective Dave Roberts investigated the case. Detective Roberts
conducted a recorded interview of Hoskins in which he admitted that he made H.L.
touch his penis. That audio recording was also played for the jury.
At the conclusion of the Commonwealth’s case, Hoskins’s attorney
advised that Hoskins would testify. The trial court asked Hoskins if he understood
his right to remain silent. Hoskins affirmed that he did but that he had made the
decision to testify after consulting with his attorney. The Commonwealth stated
that it believed Hoskins could open the door to what the court had redacted from
the recorded statements.1 However, the trial court did not agree that it would allow
the Commonwealth to ask questions concerning evidence of other crimes. The
trial court took a break so that defense counsel could speak with Hoskins.
The parties reconvened in chambers about 14 minutes later. The court
said it wanted to make sure of the status. The court stated that if Hoskins took the
1 By Orders entered January 24, 2022, the trial court noted that the Commonwealth had not made a motion pursuant to Kentucky Rules of Evidence (KRE) 404(b) for introduction of prior bad acts or uncharged acts. The trial court excluded/redacted any references in the recorded statements to allegations regarding uncharged acts of oral sodomy and to victim impact evidence.
-3- stand, he would potentially open the door “for a lot of stuff to come in that was not
coming in.” The court explained that it was “still reluctant to give the
Commonwealth leeway” to ask about uncharged acts, but that “if the defendant
puts his character into play, the Commonwealth’s cross-examination can go down
a lot of different ways.” Defense counsel stated he had tried to explain it to his
client. The trial court stated as follows:
the best I can do to advise you to and create a level playing field for everybody, but please understand the Commonwealth does get to cross and if your character is put into question the Commonwealth does get to into different areas that they may not have explored before.
The court again allowed defense counsel time to discuss the matter with Hoskins.
Approximately 12 minutes later, defense counsel advised the court
that after further consideration, Hoskins had decided not to testify. The trial court
reiterated that if the defendant put his good character in issue, the Commonwealth
would have the right to rebut that with evidence of bad character.
The jury convicted Hoskins of two counts of first-degree sexual
abuse, victim under 12, and acquitted him of the third count. He was sentenced to
15-years’ imprisonment.
In his appeal, Hoskins argues that the trial court “improperly coerced
him” into relinquishing his right to testify. The “denial of a defendant’s right to
testify on his or her own behalf is a constitutional ‘trial-type’ error that is amenable
-4- to the harmless error analysis . . . .” Quarels v. Commonwealth, 142 S.W.3d 73, 82
(Ky. 2004). Hoskins concedes that the issue was not preserved2 and requests
palpable error review under Kentucky Rule of Criminal Procedure (RCr) 10.26.3
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error[.] A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error. If not, the error cannot be palpable.
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation
marks, footnotes, and citations omitted).
Hoskins contends that the trial court incorrectly warned him that if he
testified, “it could open the door to all kinds of things that the court ha[d]
previously excluded from trial.” Hoskins explains that the “only things the court
had previously excluded” were in its orders regarding the recorded conversations
2 As our Supreme Court explained in Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006), the concepts of palpable error and harmless error are distinct. “A claim of palpable error presupposes a lack of preservation . . . . Harmless error, on the other hand, presupposes preservation . . . .” Id.
3 In relevant part RCr 10.26 provides that “[a] palpable error which affects the substantial rights of a party may be considered . . .
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RENDERED: JULY 7, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0625-MR
DONALD HOSKINS APPELLANT
APPEAL FROM TRIMBLE CIRCUIT COURT v. HONORABLE JERRY D. CROSBY, II, JUDGE ACTION NO. 19-CR-00032
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
COMBS, JUDGE: In this criminal case, the Appellant, Donald Hoskins (Hoskins),
appeals his conviction of two counts of sexual abuse in the first degree and his
sentence of 15-years’ imprisonment.
Hoskins was indicted for three counts of first-degree sexual abuse of a
victim under 12 years of age. In 2009, Hoskins’s longtime friend, Jeana, was
divorced and needed a place to stay. Hoskins allowed Jeana; her two sons; and her
then ten-year-old daughter, H.L., to move in with him. Jeana and her three children lived with Hoskins from January 2009 until April 2010. After they moved
out, Jeana remarried. Her husband, Mickey Gonterman, is a Kentucky State Police
(KSP) Trooper.
Some ten years later, in 2019, H.L. disclosed to her mother, Jeana,
that Hoskins had sexually assaulted her on three occasions beginning in January
2009. The next day, March 30, 2019, Jeana confronted Hoskins about the
allegations, which he denied. Later that day, Hoskins texted Jeana’s husband,
Mickey. The two men met in a school parking lot to talk.
Mickey was in his personal vehicle and recorded the conversation on
his cell phone. In that recording, Hoskins admitted to being drunk and thought that
maybe his penis fell out of his boxer shorts when he reached over to get the
television remote from H.L. Ultimately, Hoskins admitted having put H.L.’s hand
on his penis -- once. Hoskins did not think that it could have happened more than
twice or three times “at the most.” Hoskins knew that it was wrong. Hoskins and
Mickey met again in the parking lot on April 1, 2019, and that conversation was
also recorded. Hoskins said he thought that it happened “at the most three” times.
Both recordings were played for the jury.
On April 3, 2019, Jeana and Mickey met with Hoskins in the parking
lot. That conversation was also recorded and was played for the jury. Hoskins
said that the first time was inadvertent -- that he was reaching for the television
-2- remote while in his underwear. Hoskins admitted to putting H.L.’s hand on his
penis twice. That day, Hoskins sent Mickey a text message apologizing to H.L.
and Jeana. That message was shown and was also read to the jury during Mickey’s
testimony.
KSP Detective Dave Roberts investigated the case. Detective Roberts
conducted a recorded interview of Hoskins in which he admitted that he made H.L.
touch his penis. That audio recording was also played for the jury.
At the conclusion of the Commonwealth’s case, Hoskins’s attorney
advised that Hoskins would testify. The trial court asked Hoskins if he understood
his right to remain silent. Hoskins affirmed that he did but that he had made the
decision to testify after consulting with his attorney. The Commonwealth stated
that it believed Hoskins could open the door to what the court had redacted from
the recorded statements.1 However, the trial court did not agree that it would allow
the Commonwealth to ask questions concerning evidence of other crimes. The
trial court took a break so that defense counsel could speak with Hoskins.
The parties reconvened in chambers about 14 minutes later. The court
said it wanted to make sure of the status. The court stated that if Hoskins took the
1 By Orders entered January 24, 2022, the trial court noted that the Commonwealth had not made a motion pursuant to Kentucky Rules of Evidence (KRE) 404(b) for introduction of prior bad acts or uncharged acts. The trial court excluded/redacted any references in the recorded statements to allegations regarding uncharged acts of oral sodomy and to victim impact evidence.
-3- stand, he would potentially open the door “for a lot of stuff to come in that was not
coming in.” The court explained that it was “still reluctant to give the
Commonwealth leeway” to ask about uncharged acts, but that “if the defendant
puts his character into play, the Commonwealth’s cross-examination can go down
a lot of different ways.” Defense counsel stated he had tried to explain it to his
client. The trial court stated as follows:
the best I can do to advise you to and create a level playing field for everybody, but please understand the Commonwealth does get to cross and if your character is put into question the Commonwealth does get to into different areas that they may not have explored before.
The court again allowed defense counsel time to discuss the matter with Hoskins.
Approximately 12 minutes later, defense counsel advised the court
that after further consideration, Hoskins had decided not to testify. The trial court
reiterated that if the defendant put his good character in issue, the Commonwealth
would have the right to rebut that with evidence of bad character.
The jury convicted Hoskins of two counts of first-degree sexual
abuse, victim under 12, and acquitted him of the third count. He was sentenced to
15-years’ imprisonment.
In his appeal, Hoskins argues that the trial court “improperly coerced
him” into relinquishing his right to testify. The “denial of a defendant’s right to
testify on his or her own behalf is a constitutional ‘trial-type’ error that is amenable
-4- to the harmless error analysis . . . .” Quarels v. Commonwealth, 142 S.W.3d 73, 82
(Ky. 2004). Hoskins concedes that the issue was not preserved2 and requests
palpable error review under Kentucky Rule of Criminal Procedure (RCr) 10.26.3
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error[.] A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error. If not, the error cannot be palpable.
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation
marks, footnotes, and citations omitted).
Hoskins contends that the trial court incorrectly warned him that if he
testified, “it could open the door to all kinds of things that the court ha[d]
previously excluded from trial.” Hoskins explains that the “only things the court
had previously excluded” were in its orders regarding the recorded conversations
2 As our Supreme Court explained in Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006), the concepts of palpable error and harmless error are distinct. “A claim of palpable error presupposes a lack of preservation . . . . Harmless error, on the other hand, presupposes preservation . . . .” Id.
3 In relevant part RCr 10.26 provides that “[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.”
-5- as noted above. Hoskins contends that his testimony could not have opened the
door to admission of hearsay allegations of uncharged offenses or victim impact
evidence “as these type[s] of evidence are inadmissible regardless of whether the
defendant testified.” Hoskins also claims that instead of preserving the issue,
defense counsel “joined in coercing the defendant into not testifying[.]”
Hoskins relies upon Woolfolk v. Commonwealth, 339 S.W.3d 411, 418
(Ky. 2011), which holds that “the trial court’s inaccurate warning to a criminal
defendant that a perjury charge is a likely consequence of his election to testify,
when in fact it is not, is always error.” Hoskins also draws our attention to an
unpublished decision of this Court, Doe v. Ramey, No. 2018-CA-001154-DG, 2020
WL 1898418, at *8 (Ky. App. Apr. 17, 2020), for the proposition that “[a] waiver
of [the defendant’s] right to present his own testimony as evidence could not be
knowingly, voluntarily, and intelligently made where he was given inaccurate
advice by the district court.” We have reviewed these cases, and we conclude that
they are distinguishable from the case before us and offer no basis for us to reverse
in this case.
There is no evidence to support Hoskins’s claim that he was coerced
by the trial court. Nor is there any error. As the Commonwealth observes, the trial
court cautioned Hoskins about the “possibility” of the admissibility of rebuttal
character evidence -- if he opened the door. “The prosecutor may introduce
-6- evidence of the accused’s bad character only to rebut evidence of the accused’s
good character[.]” Metcalf v. Commonwealth, 158 S.W.3d 740, 745 (Ky. 2005).
Even were we to assume, arguendo, that the trial court’s cautioning
Hoskins was error, it would not rise to the level of palpable error. The evidence
against Hoskins was overwhelming. The jury heard the recordings. They heard
Hoskins admit -- several times -- that he put H.L.’s hand on his penis. We do not
believe that “there is a substantial possibility that the result in the case would have
been different without the error.” Brewer, supra (internal quotation marks
omitted).
Accordingly, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael L. Goodwin Daniel Cameron Rob Eggert Attorney General of Kentucky Louisville, Kentucky Melissa A. Pile Assistant Attorney General Frankfort, Kentucky
-7-