RENDERED: AUGUST 24, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0068-MR
JASON BARRETT APPELLANT
ON APPEAL FROM OHIO CIRCUIT COURT V. HONORABLE TIMOTHY R. COLEMAN, JUDGE NO. 19-CR-00001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
An Ohio County grand jury indicted Jason Barrett on ten counts of first-
degree sexual abuse for actions perpetrated against his stepdaughter, K.V., a
minor at the time of the sexual abuse.1 K.V.’s mother, Katherine Barrett, was
also indicted on multiple counts of complicity to the sexual abuse.2 Barrett and
Katherine were tried jointly. Before the trial commenced, one count of sexual
abuse against Barrett was dismissed. A jury found both Barrett and Katherine
guilty of all other counts. Barrett was sentenced to 20 years in prison. He
1 We use abbreviations to identify the victim and her siblings to protect their
privacy. 2 There are multiple Barretts in this case. To avoid confusion, Jason will be
referred to as Barrett and Katherine will be referred to by her first name. appealed his conviction to this Court as a matter of right. See KY. CONST. §
110(2)(b). After careful review of the record, we affirm the Ohio Circuit Court.
I. BACKGROUND
This case involves nine incidents of sexual abuse that occurred between
February 10, 2016, and December 5, 2018. When Barrett committed these
acts, the victim, K.V., was between the ages of 15 and 17. During this period,
K.V. lived in the same household as Barrett, Katherine, her older sister E.M.,
and her three younger siblings. When K.V. was living with Barrett and
Katherine she also had an older boyfriend who lived in Georgetown, Kentucky.
K.V. told her boyfriend about the sexual abuse and showed him some of her
diary entries recalling events surrounding the abuse.
In December 2018, K.V. wanted to stay with her boyfriend for two weeks
around the holidays. At first Barrett and Katherine said yes but objected when
she wanted to stay longer. Their objection was because she was only 17 years
old. Around the same time, K.V.’s boyfriend reported the sexual abuse to his
teacher on December 6, 2018.
When K.V.’s boyfriend reported the sexual abuse to his teacher, the
teacher contacted the Cabinet for Health and Family Services. The
aforementioned report led to a welfare check at the Barrett home by deputies
with the Ohio County Sheriff’s Department on December 6, 2018. K.V., fearing
a truthful disclosure would lead to her and her siblings being placed in foster
care, denied that any abuse occurred. The police conducted another interview
2 with K.V. outside of the home on December 7, 2018, where she then told
Detective Katie Pate that she was sexually abused by Barrett.
Detective Pate also interviewed Barrett and Katherine. Barrett admitted to
touching K.V. on the buttocks but claimed it was not sexual. Katherine initially
denied seeing Barrett touch K.V. inappropriately but later admitted seeing him
touch her buttocks. Katherine insisted that the touching was not sexual.
At trial, K.V. testified to the nine incidents of sexual abuse and read
aloud from her diary entries. Barrett testified in his own defense and denied he
sexually abused his stepdaughter. Katherine testified she never knew or saw
Barrett touch K.V. inappropriately. E.M. testified she shared a room with K.V.
who never told her anything about Barrett sexually abusing her.
After two days of trial, the jury found Barrett guilty of all nine counts of
first-degree sexual abuse, and Katherine guilty of two counts of complicity to
sexual abuse. The trial court sentenced Barrett to a total of twenty years in
prison. Barrett now appeals to this Court as a matter of right alleging multiple
errors.
II. ANALYSIS
On appeal, Barrett alleges multiple errors by the trial court warranting
reversal of his conviction. First, he argues the Commonwealth engaged in
flagrant prosecutorial misconduct when the prosecutor told the jury in closing
argument, “[t]hat presumption of innocence, I would submit to you is gone
because you’ve heard the proof beyond a reasonable doubt.” Second, he argues
the trial court erroneously allowed K.V. to read from printed screenshots of her
3 iPad diary. Third, Barrett argues the trial court erred by allowing the
Commonwealth to ask a witness to comment on the credibility of another
witness. Fourth, he argues the jury instructions violated his right to a
unanimous verdict. Finally, Barrett argues this Court should overturn his
conviction based on cumulative error. We discuss each argument in turn.
A. The prosecutor’s closing argument was improper but was not flagrant prosecutorial misconduct.
Barrett argues the Commonwealth engaged in flagrant prosecutorial
misconduct during its closing argument. Specifically, he argues that the
flagrant prosecutorial misconduct occurred when the prosecutor told the jury
that the “presumption of innocence, I would submit to you is gone because
you’ve heard the proof beyond a reasonable doubt.” Barrett argues that single
comment was flagrant prosecutorial misconduct and violated his right to a fair
trial.
“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act
involving an attempt to persuade the jury to wrongly convict a defendant or
assess an unjustified punishment.’” Commonwealth v. McGorman, 489 S.W.3d
731, 741–42 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116,
121 (Ky. 2011)). “If the misconduct is objected to, we will reverse on that
ground if proof of the defendant’s guilt was not such as to render the
misconduct harmless, and if the trial court failed to cure the misconduct with a
sufficient admonition to the jury.” Duncan v. Commonwealth, 322 S.W.3d 81,
87 (Ky. 2010). However, if no objection is made, the Court “will reverse only
4 where the misconduct was flagrant and was such as to render the trial
fundamentally unfair.” Id. (citations omitted).
No contemporaneous objection was made, and Barrett concedes that this
issue is unpreserved. Because the issue is unpreserved, Barrett requests we
review it for palpable error. See RCr 10.26.
Barrett argues the Commonwealth committed flagrant prosecutorial
misconduct in its closing argument when the prosecutor told the jury,
By the way, the presumption of innocence at this point in time [sic]. You’ve heard the proof. You’ve heard the evidence. You’ve heard this child tell you, in details that I didn’t want to have to get into in mixed company, but we have to, to hold these people accountable. That presumption of innocence, I would submit to you is gone because you’ve heard the proof beyond a reasonable doubt. There is no reasonable doubt what happened in this case. Because this child told you the truth.
(emphasis added). In support of his argument, Barrett cites to a Washington
Court of Appeals decision that reversed the defendant’s conviction because the
prosecutor made repeated improper comments in closing, including that the
presumption of innocence “kind of stops once you start deliberating.” State v.
Evans, 260 P.3d 934, 938 (Wash. Ct. App. 2011). Barrett argues that in
Kentucky “every person accused of committing a crime is entitled to the
presumption of innocence and to have such presumption continue until guilt[]
is proven beyond a reasonable doubt.” Newkirk v. Commonwealth, 937 S.W.2d
690, 695 (Ky. 1996). Overall, Barrett asserts the Commonwealth’s comment
was flagrant prosecutorial misconduct because it was a misstatement of the
law that “seriously dilutes the State’s burden of proof” and “render[ed] the trial
5 fundamentally unfair.” See Evans, 260 P.3d at 939; Brafman v. Commonwealth,
612 S.W.3d 850, 861 (Ky. 2020) (citation omitted).
Prosecutorial misconduct can occur through an improper closing
argument. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing
Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). Any allegation of
misconduct must be viewed in the context of the overall fairness of the trial.
McGorman, 489 S.W.3d at 742 (citing St. Clair v. Commonwealth, 451 S.W.3d
597, 640 (Ky. 2014)). To justify reversal, the Commonwealth’s misconduct
must be “so serious as to render the entire trial fundamentally unfair.” Soto v.
Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (quoting Stopher v.
Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
This Court holds that the Commonwealth’s comment in its closing
argument “that presumption of innocence, I would submit to you is gone
because you’ve heard the proof beyond a reasonable doubt” is prosecutorial
misconduct. Prosecutors have wide latitude in closing and are free to draw any
and all reasonable inferences from the evidence. Murphy v. Commonwealth, 509
S.W.3d 34, 50 (Ky. 2017) (citations omitted). However, prosecutors do not have
latitude to “shift the burden of proof” or “contravene the presumption of
innocence” during closing arguments. See Tamme v. Commonwealth, 973
S.W.2d 13, 38–39 (Ky. 1998); Grundy v. Commonwealth, 25 S.W.3d 76, 82 (Ky.
2000). “[T]he presumption of innocence mandates the burden of proof and
production fall on the Commonwealth, any burden shifting to a defendant in a
criminal trial would be unjust.” Butcher v. Commonwealth, 96 S.W.3d 3, 10 (Ky.
6 2002). “Every person accused of committing a crime is entitled to the
presumption of innocence and to have such presumption continue until guilt[]
is proved beyond a reasonable doubt.” Newkirk, 937 S.W.2d at 695. Further,
the presumption of innocence “remains with the defendant through every stage
of trial, most importantly, the jury’s deliberations,” and it is only extinguished
upon the jury’s determination of guilty beyond a reasonable doubt. United
States v. Marin, 31 F.4th 1049, 1055 (8th Cir. 2022) (quoting Kellogg v. Skon,
176 F.3d 447, 451 (8th Cir. 1999)); see also United States v. Crumley, 528 F.3d
1053, 1065 (8th Cir. 2008) (holding the prosecutor’s remark that the
presumption of innocence “can be removed by fact, by proof” was improper).
The Commonwealth, in its closing, went through the jury instructions.
When the prosecutor got to Jury Instruction #3, he did not read it verbatim.
That instruction was as follows:
[t]he law presumes the defendant innocent of a crime, and the indictment shall not be considered evidence or as having any weight against the defendant. You shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that the defendant is guilty. If upon the whole case you have reasonable doubt that the defendant is guilty, you shall find the defendant not guilty.
The Commonwealth commented on this instruction by saying that “at this
point in time” the presumption of innocence is gone because “you’ve heard the
proof beyond a reasonable doubt.” The prosecutor followed up that statement
with “there is no reasonable doubt what happened in this case.” The
prosecutor’s comment is improper because it suggests that at closing argument
the defendant is no longer presumed innocent, which is simply not true. Any
7 suggestion otherwise shifts the burden of proof away from the Commonwealth
and on to the defendant. This is also not a reasonable inference from the
evidence because it is a mischaracterization of the jury instruction’s language
and the law. A prosecutor cannot argue that the presumption of innocence is
gone in his or her closing argument because it implies the jury should ignore
the defendant’s presumption of innocence when it begins its deliberations. For
those reasons, this Court finds that the Commonwealth engaged in
prosecutorial misconduct. However, because Barrett did not object, we must
now determine if that prosecutorial misconduct is sufficient to be “flagrant”
prosecutorial misconduct.
Because this issue is unpreserved, we will reverse only if the conduct
was both flagrant and constitutes palpable error resulting in manifest injustice.
RCr 10.26; Matheney v. Commonwealth, 191 S.W.3d 599, 606, 607 n.4 (Ky.
2006). To determine whether improper conduct is flagrant and requires
reversal, this Court weighs four factors: (1) whether the remarks tended to
mislead the jury or to prejudice the accused; (2) whether they were isolated or
extensive; (3) whether they were deliberately or accidentally placed before the
jury; and (4) the strength of the evidence against the accused. Brafman, 612
S.W.3d at 861 (footnotes omitted). We look at the claimed error in context to
determine whether, as a whole, the trial was rendered fundamentally unfair. Id.
(footnote omitted).
Regarding the first part of the test, the Commonwealth’s comment that
the presumption of innocence is gone served to prejudice Barrett. Barrett
8 began the trial from a place of innocence and that innocence stayed with him
throughout the entire trial. Newkirk 937 S.W.2d at 695; Marin, 31 F.4th at
1055. He could only be found guilty if the jury determined that the
Commonwealth had presented enough evidence to overcome that presumption
and had met its burden of proof. The prosecutor suggested however, that the
presumption of innocence was, at the time of closing arguments, gone because
the evidence proved beyond a reasonable doubt that Barrett was guilty. That
comment to a jury of lay people who are not educated in the law invites them to
draw an adverse inference of guilt and indicates that they no longer need to
consider Barrett’s presumption of innocence. This was prejudicial, and this
factor favors Barrett.
As to the second part of the test, the Commonwealth’s remark was
isolated. The prosecutor made the comment once in his approximately 45-
minute-long closing argument. This Court has held that a few sentences that
were spoken in the middle of the Commonwealth’s 55-minute-long closing
argument were isolated because the comments were not repeated or even
emphasized. Hall v. Commonwealth, 645 S.W.3d 383, 399 (Ky. 2022). Since the
Commonwealth’s comment regarding the presumption of innocence was
mentioned only once during its 45-minute-long argument, it was isolated, and
this factor weighs in favor of the Commonwealth.
The third part of the test favors Barrett because the Commonwealth
deliberately placed the comment in front of the jury. The prosecutor went
through the jury instructions and explained the evidence in support of a guilty
9 verdict. He contradicted the jury instruction language regarding presumption of
innocence when he argued that the “presumption of innocence, I would submit
to you is gone because you’ve heard the proof beyond a reasonable doubt.”
There is nothing to suggest that the prosecutor was not acting deliberately
when he placed that comment in front of the jury. See Mayo v. Commonwealth,
322 S.W.3d 41, 56 (Ky. 2010) (holding that the Commonwealth’s comments
that a “good jury” would find the defendant guilty was deliberately placed in
front of the jury). Further, recently in Sanders v. Commonwealth, an attorney
from the same Commonwealth’s Attorney’s office used similar language in his
closing argument. No. 2022-SC-0084-MR, 2023 WL 4037450, *6 (Ky. Jun. 15,
2023). 3 The foregoing considerations, taken in conjunction with each other,
lead us to conclude it was deliberate and not an accidental misstatement.
Finally, we must evaluate the strength of the evidence against Barrett.
This case was a two-day trial with six witnesses. A substantial part of the
Commonwealth’s case against Barrett was K.V.’s testimony and her journal
entries.4 K.V. testified to nine separate incidents of sexual abuse by Barrett.
She could not testify to the exact dates on which the sexual abuse occurred,
3 We acknowledge that in Sanders we held that the prosecutor’s comment
“presumption of innocence is gone” was not misconduct; however, the cases are factually distinguishable. Sanders, 2023 WL 4037450, at *6. The prosecutor in Sanders told the jury before and after he said the “presumption of innocence is gone” that the defendant is presumed innocent unless the jury was satisfied beyond a reasonable doubt that the defendant was guilty. Id. The prosecutor in Sanders repeatedly told the jury that the defendant was presumed innocent. Id. This stands in stark contrast to the case at bar. 4 This Court holds no error in the trial court allowing K.V. to read the printed
screenshots of her diary entries from her iPad, as will be addressed later.
10 but she recalled the room of the house and the specific circumstances
surrounding each incident of sexual abuse. The defense argued that K.V. lied
about the sexual abuse because she was upset that she could not stay with her
boyfriend. To support the defense’s argument, Barrett testified that he never
inappropriately touched his stepdaughter. Katherine, and E.M. testified to
never seeing Barrett sexually abuse K.V. However, Katherine admitted to seeing
Barrett touch K.V.’s buttocks area and Barrett admitted to touching K.V.’s
buttocks area.
K.V.’s journal entries corroborated her testimony and discredited the
defense’s theory of the case. Several journal entries contained details that
matched K.V.’s testimony. Further, the entries were dated months before K.V.
asked to stay with her boyfriend and her alleged motive to lie arose. Finally,
one of the journal entries explained that K.V. lied to the police initially because
she was “scared of losing everything” if she and her siblings were taken into
foster care. Considering all the evidence against Barrett, K.V.’s testimony, and
corroborating journal entries, this factor weighs in favor of the Commonwealth.
Having found two of the four factors weigh in favor of Barrett, “we must
use the general test for whether relief for prosecutorial misconduct is proper:
an examination of the trial as a whole to determine if the improper comments
undermined the essential fairness of [Barrett’s] trial.” Mayo, 322 S.W.3d at 57
(citation omitted) (finding two factors of the flagrant prosecutorial misconduct
analysis in favor of the defendant and two in favor of the Commonwealth). As
stated above, the Commonwealth did not repeat throughout its 45-minute-long
11 closing argument that the defendant’s presumption of innocence is gone.
Before closing arguments, the trial court read the instructions to the jury. The
jury members each also received a copy of the jury instructions to take with
them into deliberations. The Commonwealth’s one improper comment in the
entire closing argument is not likely to have had a great enough impact to
undermine the essential fairness of Barrett’s trial. We hold that the
Commonwealth’s improper comment that the presumption of innocence is gone
did not amount to flagrant prosecutorial misconduct. We cannot conclude that
the Commonwealth’s comment in closing argument was so egregious that it
undermined the essential fairness of Barrett’s trial. Hall, 645 S.W.3d at 400
(citation omitted).
As we have previously explained,
[A]n unpreserved error may be reviewed on appeal if the error is palpable and affects the substantial rights of a party. . . . Even then, relief is appropriate only upon a determination that manifest injustice has resulted from the error. . . . An error is palpable, only if it is clear or plain under current law. . . . Generally, a palpable error affects the substantial rights of a party only if it is more likely than ordinary error to have affected the judgment. . . . We note that an unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable.
Miller v. Commonwealth, 283 S.W.3d 690 695 (Ky. 2009) (internal citations and
quotation marks omitted). For all the reasons discussed above, the
Commonwealth’s closing argument comment about the presumption of
innocence is not palpable error.
12 B. The trial court did not err in allowing K.V. to read the printed screenshots of her diary entries from her iPad.
Barrett next argues that the trial court erred in allowing K.V. to read
from printed screenshots of her iPad diary. Barrett concedes this issue is
unpreserved. Because the issue is unpreserved, Barrett requests palpable error
review. See RCr 10.26.
During a bench conference, the prosecutor alerted the trial court that
K.V. kept dated notes on her iPad, like a diary. The prosecutor wanted to ask
K.V. about her diary entries because he wanted to show the dates she began
writing about the sexual abuse. The dates were important because the diary
entries were written before K.V. was denied her request to stay with her
boyfriend for longer than originally planned. Therefore, the dates disproved the
defense’s theory that she was lying in order to stay longer with her boyfriend.
The trial court ruled that the Commonwealth could not introduce the
diary entries as exhibits, but the prosecutor could ask K.V. about them and
she could read from them. The next day, the trial court reiterated that the
screenshots were not to be admitted as exhibits, but the court ruled that K.V.
could read from them to refresh her memory. After K.V. testified about the nine
incidents of sexual abuse, the Commonwealth’s Attorney asked her about the
screenshots of her diary. The prosecutor instructed K.V. to state the date of the
first diary entry and to read the contents of the diary entry. Then, the
prosecutor instructed K.V. to read the entirety of another diary entry that was
not dated. K.V.’s testimony continued with her reading three more dated diary
entries in their entirety. 13 Barrett notes the prosecutor never stated what rule of evidence permitted
him to ask K.V. to read the contents of her iPad diary. The trial court, however,
saw the readings as a refreshing of K.V.’s recollection. Barrett argues that two
rules of evidence are implicated in this issue: Kentucky Rule of Evidence
(“KRE”) 612 and KRE 803(5).
KRE 612 provides:
[I]f a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Barrett correctly argues that KRE 612 “codifies the common-law rule allowing
any writing to be used to refresh a witness’s memory if necessary.” Martin v.
Commonwealth, 456 S.W.3d 1, 15 (Ky. 2015). “[W]hen that witness refreshes
her memory under this rule, the testimony elicited thereafter ‘is the product of
the refreshed memory, not the writing used to refresh it.’ As a result, the
document itself is not admissible, and the hearsay rule does not apply.” Id.
Barrett argues that the Commonwealth improperly refreshed K.V.’s
recollection. The prosecutor never asked K.V. to read the diary to herself before
reading it aloud to the jury. Barrett argues that a writing cannot be read aloud
and introduced into evidence under the pretext of refreshing the recollection of
a witness. Fisher v. Commonwealth, 620 S.W.3d 1, 15 (Ky. 2021) (citation
omitted).
KRE 803(5), on the other hand, states:
14 Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party.
Barrett argues the prosecutor did not lay the foundation for K.V. to read her
notes into the record under KRE 803(5). Barrett argues K.V. did not have
“insufficient memory” to be able to testify fully and accurately, as she never
expressed any difficulty describing the events.
The Commonwealth, on the other hand, argues that neither KRE 612 nor
KRE 803(5) apply because Barrett’s opening statement made K.V.’s diary
entries admissible as prior consistent statements under KRE 801A.
Under KRE 801A(a)(2),
[a] statement is not excluded by the hearsay rule . . . if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, 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.
See also Murray v. Commonwealth, 399 S.W.3d 398, 403 (Ky. 2013).
Importantly, “a prior consistent statement is admissible to rebut a charge of
recent fabrication only if the statement was made before the alleged motive to
fabricate came into existence.” Slaven v. Commonwealth, 962 S.W.2d 845, 858
(Ky. 1997) (citation omitted).
In his opening statement, defense counsel said the following:
15 What we want you to do is hear what [K.V.] said and also why she said it. What was her aim? Did she have an aim? Did she have an agenda? We think she did. We think that agenda was to get out of the home to go with this boyfriend. That’s what we believe.
The defense implied in its opening statement that K.V. had a motive to lie
about the sexual abuse. Barrett’s attorney argued K.V.’s motive to lie about the
sexual abuse arose in December 2018 when Barrett and Katherine denied her
request to stay with her boyfriend. We do not know the exact date in December
2018 when Barrett and Katherine denied this request. However, we do know
that her boyfriend told his teacher about the sexual abuse on December 6,
2018, and K.V. did not disclose the sexual abuse to the Cabinet for Health and
Family Services during the initial welfare check on that same day. The defense
argued that K.V.’s desire to stay with her boyfriend was the reason K.V. told
Detective Pate about the sexual abuse during her interview with police on
December 7, 2018.
During a bench conference, the Commonwealth explained to the trial
court that it was going to introduce the diary entries to rebut the defense’s
theory that K.V. lied about the sexual abuse. Under KRE 801A(a)(2), the diary
entries are consistent with K.V.’s testimony that she was sexually abused and
were offered to rebut the implied charge that K.V. lied about the sexual abuse.
Further, the prior consistent statements were all made before the motive to lie
arose. Even though K.V. did not document every incident of sexual abuse with
a diary entry, the entries she did document were dated before she asked
Barrett and Katherine to stay with her boyfriend in December 2018. We do not
know the date of the last incident of sexual abuse, but we do know the sexual 16 abuse stopped after December 7, 2018, because K.V. no longer lived with
Barrett.
The first diary entry was dated March 10, 2017. The second diary entry
was undated. We know the second diary entry was composed sometime before
December 2018 because of the contents of the entry and what K.V. did after
writing the diary entry. In the second diary entry, K.V. wrote that Barrett
touched her buttocks area again while she was sleeping, she told her boyfriend
about the incident a week later, and she told no one else. K.V. testified that she
sent screenshots of the diary entry to her boyfriend at least three weeks before
December 6, 2018. When the boyfriend reported the abuse to a teacher on
December 6, 2018, he provided the teacher with screenshots of K.V.’s diary
entries. In addition, we know that the undated diary entry is before December
2018 because the next two diary entries are from June 22, 2018, and June 23,
2018.
The last diary entry is from December 6, 2018. This diary entry does not
discuss any incident of sexual abuse. Instead, the entry is about how K.V. lied
to the police and case worker about the sexual abuse. K.V. initially told the
police that no sexual abuse occurred because she feared a truthful disclosure
would result in her and her siblings being split up. All the diary entries were
made before December 7, when K.V. told the police that Barrett sexually
abused her. All the diary entries that discuss incidents of sexual abuse were
composed before she asked to stay with her boyfriend. The diary entries qualify
under KRE 801A as prior consistent statements because the entries were
17 composed before the “fabrication or improper influence, or motive arose” in
December 2018.
Barrett argues that even if the diary entries were prior consistent
statements, the proper foundation was not laid as required by KRE 613. Under
KRE 613(a),
Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it.
The proper foundation was laid because the prosecutor asked K.V. if she was
the one who made the diary entries, and the prosecutor asked for the date of
the diary entries. K.V. stated that she was the one who created the diary
entries and provided some of the dates for the entries. Regarding the undated
diary entry, K.V. recounted the details of the entry before reading it aloud. We
hold that the proper foundation was laid, and K.V.’s diary entries were
admissible under KRE 801A.
As to Barrett’s argument that the diary entries were prohibited under
KRE 404(b) and KRE 403, we are unconvinced. Barrett argues the entries
contained other uncharged offenses and bad acts prohibited by KRE 404(b).
Evidence of other crimes, wrongs, or acts may be admissible if offered for some
other purpose, such as proof of motive or intent. KRE 404(b)(1). To determine if
the other bad acts evidence is admissible, “the trial court should use a three-
prong test: (1) is the evidence relevant? (2) does it have probative value? (3) is
its probative value substantially outweighed by its prejudicial effect?” Leach v. 18 Commonwealth, 571 S.W.3d 550, 554 (Ky. 2019) (citation omitted). For
evidence to be relevant it must be offered to prove material facts in dispute. Id.
Here, to the extent the diary entries included other bad acts, the contents of
the diary entries were offered to prove Barrett’s intent when he inappropriately
touched K.V. and made lewd comments about her body. This evidence is
relevant because it goes to a material fact in dispute of whether Barrett
sexually abused K.V. The diary entries are also probative because the jury
could reasonably infer that the prior bad acts occurred and that Barrett
committed such acts. Id. (citing Parker v. Commonwealth, 952 S.W.2d 209, 214
(Ky. 1997)). The probative value is not substantially outweighed by the
prejudicial effect because the evidence is not being offered to produce an
emotional response that inflames the passions of the jury. Id. The evidence was
offered to rebut the defense’s theory that K.V. lied about the sexual abuse, and
it shows Barrett’s intent to commit the acts. For the same reasons as above,
K.V.’s diary entries did not violate KRE 403.
Barrett also argues the prosecutor failed to give notice under KRE 404(c).
Defense counsel knew of the diary entries during the bench conference, and
apparently had been provided them in discovery, so there is no violation of KRE
404(c).
Finally, Barrett argues the diary entries improperly bolstered K.V.’s
credibility. Barrett cites Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011), to
support this argument. In Hoff, this Court held that the hearsay statements
were not admissible under KRE 803(4). Id. at 374. K.V.’s diary entries are
19 distinguishable from the statements in Hoff because they were admissible prior
consistent statements under KRE 801A.
For all those stated reasons, K.V.’s diary entries were admissible under
KRE 801A, and the trial court did not err in allowing K.V. to read from those
entries.
C. The trial court did not commit palpable error in allowing the Commonwealth to question Barrett about K.V.’s credibility.
Barrett argues that the trial court erred in allowing the Commonwealth
to question him on cross-examination about K.V.’s credibility. Barrett concedes
this issue is unpreserved. Because the issue is unpreserved, Barrett requests
palpable error review. See RCr 10.26.
Barrett argues that during his testimony, the Commonwealth repeatedly
badgered him about K.V.’s motive to lie in her testimony. The line of
questioning that Barrett argues is in error is as follows:
Commonwealth (“CW”): Now you’re telling this jury that…do you remember in June 2018, did you ever read the note she made in her iPad on that date, June 22, 2018, about how she told her mom about what you’d been doing to her?
Barrett: That never occurred.
CW: You don’t remember having a conversation with your wife and K.V. …
Barrett: That never happened.
CW: … on June 22, 2018, when she told her mom?
CW: Why would she tell the jury that if that never happened?
Barrett: I don’t understand why. 20 CW: You don’t understand why because she has no reason to say it, does she?
Barrett: (No answer) ….
Barrett provides other examples of questioning during his cross examination
where he was asked by the prosecutor to comment on K.V.’s credibility. In one
of those examples, the Commonwealth asked Barrett:
[You are] the one here sitting here on trial looking at 12, 15 people in the face with everything to lose but this child since June 2018 documenting when [she is] telling her mom way before [you are] saying oh she wants to run off to Scott County in December – this is in June. This child has no reason to put in there that [she has] told her mom and had been documented for over a year before that you [were] touching her. You [do not] know any reason for that child to state that other than it would be true, do you?
(emphasis added). Barrett argues that the prosecutor’s repeated questioning
about the truthfulness of K.V.’s testimony violated Moss v. Commonwealth, 949
S.W.2d 579 (Ky. 1997).
In Moss, this Court held that “[a] witness should not be required to
characterize the testimony of another witness, particularly a well-respected
police officer, as lying.” Id. at 583. We noted that, with a few exceptions, “it is
improper to require a witness to comment on the credibility of another
witness.” Id. (quoting State v. James, 557 A.2d 471, 473 (R.I. 1989)). We further
said that “[a] witness’s opinion about the truth of the testimony of another
witness is not permitted. Neither expert nor lay witnesses may testify that
another witness or a defendant is lying or faking. That determination is within
the exclusive province of the jury.” Id. (quoting James, 557 A.2d at 473).
21 In Graham v. Commonwealth, this Court found no Moss violation because
the Commonwealth did not ask the defendant to call other witnesses liars and
did not put the defendant in an unflattering light by its questioning. 571
S.W.3d 575, 585 (Ky. 2019). During cross-examination, the defendant testified
to the last time he had interacted with the victims. Id. at 584–85. The
defendant testified that the victims became upset that he would not take them
fishing. Id. at 585. The Commonwealth asked the defendant whether it was his
belief that the victims’ behavior was “why [he was] here today” in trial. Id.
Defense counsel objected to the question, and the Commonwealth explained
that the defendant implied the two boys conspired against him because they
were angry at him. Id. The trial court overruled the objection, and the
Commonwealth continued to ask the defendant whether the victims
“concocted” the story. Id. The defendant in response stated he did not know
why the charges were brought against him. Id.
This Court held it was clear that the version of events the defendant
testified to stood in stark contrast with the testimony of other witnesses, and
the Commonwealth was attempting to clarify the defendant’s testimony. Id. The
defendant presented a motive for the boys to make up a story concerning the
abuse, and the Commonwealth fleshed that out through a line of questions. Id.
The line of questioning in the case at bar is distinguishable from Graham
because Barrett was repeatedly asked why K.V. would say something if it did
not happen. The questioning went beyond simply fleshing out the defense’s
22 theory. The Commonwealth was trying to have Barrett comment on K.V.’s
credibility as a witness.
The Commonwealth argues its line of questioning in the case at bar was
not improper because the prosecutor did not ask Barrett to state K.V. was
lying. Instead, he asked Barrett what motive K.V. had to give false testimony.
The Commonwealth asked these questions after defense counsel presented the
theory that K.V. conjured the allegations after her parents denied her request
to stay with her boyfriend and after Barrett’s testimony that K.V.’s allegations
“never happened.” The Commonwealth argues that other jurisdictions allow
questioning of a defendant regarding their accuser’s motive to lie and that this
does not cross into improperly asking the defendant if another witness is lying.
See, e.g., United States v. Cole, 41 F.3d 303, 309 (7th Cir. 1994); State v.
Waholic, 897 A.2d 569, 590 (Conn. 2006) (citations omitted) (“[W]e have
distinguished between improperly asking the defendant to comment on the
veracity of another witness’ testimony and properly questioning the defendant
about his accuser’s motive in testifying against him.”).
We agree with Barrett that the Commonwealth’s line of questioning was
improper because the prosecutor repeatedly asked Barrett to opine about the
truth of K.V.’s testimony. The Commonwealth did not explicitly ask Barrett
whether K.V. was lying but repeatedly asked Barrett to give a reason why K.V.
would say something if it never happened. This is like the questioning in Moss
because the Commonwealth’s questions were framed in such a way to get
Barrett to call K.V. a liar. Barrett repeatedly denied that certain events
23 happened, and the Commonwealth repeatedly asked why K.V. would testify
that it occurred if it did not happen. Asking Barrett to question whether K.V. is
someone who would testify to something that did not occur placed him in an
unflattering light and attempted to take the determination of K.V.’s
truthfulness away from the jury.
Although the Commonwealth’s line of questioning was improper it did
not rise to palpable error. “Palpable error will compel us to reverse only where
the error substantially affects the rights of the defendant in a way so obvious
and serious that we find there to be manifest injustice.” Brafman, 612 S.W.3d
at 857 (citation omitted). The defense’s theory of the case was that K.V. lied
about the sexual abuse because Barrett and Katherine did not allow her to stay
with her boyfriend. The Commonwealth’s cross-examination pressed Barrett on
that theory. This Court has not yet found such a Moss violation to rise to
palpable error under RCr 10.26. Parker v. Commonwealth, 482 S.W.3d 394,
406 (Ky. 2016) (citing Luna v. Commonwealth, 460 S.W.3d 851, 879 (Ky.
2015)). Likewise, this Court holds that the Commonwealth’s questioning was a
Moss violation, but it did not amount to palpable error.
D. The jury instructions did not violate Barrett’s right to a unanimous verdict.
We now turn to Barrett’s argument that the jury instructions violated his
right to a unanimous verdict. Barrett concedes this issue is unpreserved.
Because the issue is unpreserved, Barrett requests palpable error review. See
RCr 10.26.
24 Section 7 of the Kentucky Constitution guarantees that “a defendant
cannot be convicted of a criminal offense except by a unanimous verdict.” Miller
v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (citations omitted). “[T]he
Commonwealth must introduce evidence sufficient to prove each offense and to
differentiate each count from the others, and the jury must be separately
instructed on each charged offense.” King v. Commonwealth, 554 S.W.3d 343,
354 (Ky. 2018) (quoting Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky.
2002)). “[A] trial court is obliged to include some sort of identifying
characteristic in each instruction that will require the jury to determine
whether it is satisfied from the evidence the existence of facts proving that each
of the separately charged offenses occurred.” Harp v. Commonwealth, 266
S.W.3d 813, 818 (Ky. 2008). In Johnson v. Commonwealth, we held, “a general
jury verdict based on an instruction including two or more separate instances
of a criminal offense, whether explicitly stated in the instruction or based on
the proof—violates the requirement of a unanimous verdict.” 405 S.W.3d 439,
449 (Ky. 2013).
Barrett argues his right to a unanimous verdict was violated because the
jury instructions made it impossible for the jury to distinguish the nine counts
of sexual abuse from each other. During trial, the Commonwealth elicited proof
that multiple incidents of sexual abuse occurred. The prosecutor asked K.V. to
provide details surrounding each instance of sexual abuse. To distinguish the
incidents, the prosecutor asked K.V. to describe the room she was in when the
sexual abuse occurred and the surrounding circumstances. K.V. also read from
25 multiple diary entries that she kept during the period of the sexual abuse
incidents. Barrett argues that the prosecutor failed to match K.V.’s testimony
to the diary entries, and that this failure made it impossible for the jury to
distinguish one instance from the others. Further, he argues that the
prosecutor, in his closing argument, reminded the jury that K.V. testified that
the sexual abuse occurred often and that it was almost impossible for her to
tell the jury everything that happened to her. Barrett argues that K.V.’s
testimony that the sexual abuse happened “quite often” allowed the jurors to
return nonunanimous verdicts regarding the specific acts of sexual abuse for
which they found him guilty.
We do not agree with Barrett’s argument that the jury instructions
violated his right to a unanimous verdict. Unlike the jury instructions in King,
where the jury was presented with multiple instances of sexual abuse for each
instruction, the jury instructions in Barrett’s case included identifying
characteristics that corresponded with an individual instance of sexual abuse.
King, 554 S.W.3d at 350. In King, Jury Instruction #5 read:
You will find the Defendant, Ronald King, guilty of Sexual Abuse in the First Degree under this Instruction and under Count One of the Indictment, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Kenton County on or between May 2010 and March 2013 and before the finding of the Indictment herein, he subjected A.S. to sexual contact at 414 Garvey Avenue;
AND,
B. That at the time of such contact, A.S. was less than twelve years of age.
26 Id. This Court held that Jury Instruction #5 violated King’s right to a
unanimous verdict because the victim testified to three separate instances of
inappropriate sexual contact that occurred during the applicable time period
and at the applicable location. Id.
In the case at bar, Jury Instructions #4-12 set forth each of the nine
counts of sexual abuse against Barrett. Each jury instruction included details
that corresponded to specific circumstances. By way of example, Jury
Instruction #4 stated as follows:
You will find the Defendant, Jason Barrett, guilty of Sexual Abuse in the First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
a. That in this county on or between February 10, 2016 through December 5, 2018 and before the finding of the Indictment herein, he subjected [K.V.] to sexual contact when he touched her upper inner thigh with his hand for the first time while [K.V.] was laying in her mother’s bed;
AND
b. That at the time of such occurrence, [K.V.] was less than 18 years of age;
c. That at the time of such occurrence, the Defendant was a person in a position of authority;
d. That the Defendant came into contact with [K.V.] as a result of his position of authority.
K.V. testified to the specific incident of sexual abuse provided in Jury
Instruction #4. She stated that sometime between February 10, 2016, and
December 5, 2018, Jason sexually abused her for the first time when she was
in her mother’s bed. K.V. testified that she felt someone touch her leg and 27 inner thigh. She testified that the person who touched her leg and inner thigh
was Barrett.
Each jury instruction between 4 and 12 contained a different set of facts
describing a specific incident of sexual abuse committed by Barrett and
testified to by K.V. Another example is Jury Instruction #6 which instructed
the jury to find Barrett guilty if “he subjected [K.V.] to sexual contact when he
touched [K.V.’s] vagina under her clothing with his hand while she was laying
on her bed on the occurrence where her mother had gone to the store.” K.V.
testified that Barrett touched her vagina under her clothing while she was
laying on her bed. She also testified that this happened when her mother went
to the store. K.V. did not testify to any other sexual abuse that would have fit
within the language of this instruction.
Upon review of each of the instructions and all of K.V.’s testimony, it is
clear that each instruction described a specific instance of sexual abuse
testified to by K.V. Thus, the jury instructions were not in error and did not
violate Barrett’s right to a unanimous jury verdict.
E. There is no cumulative error
Finally, Barrett argues his conviction should be reversed due to
cumulative error. Under the cumulative error doctrine, “multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010). “Where, as in this case, however, none of the
errors individually raised any real question of prejudice, we have declined to
28 hold that the absence of prejudice plus the absence of prejudice somehow adds
up to prejudice.” Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34, 53 (Ky.
2002)).
In this case, there were two errors. It was improper for the prosecutor to
tell the jury in his closing argument that the “presumption of innocence, I
would submit to you is gone because you’ve heard the proof beyond a
reasonable doubt.” It was also improper for the trial court to allow the
Commonwealth to repeatedly question Barrett about K.V.’s credibility. Neither
of these errors “raised any real question of prejudice.” Id. Accordingly, we hold
there was no cumulative error in this case.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Ohio Circuit
Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Robert Lee Baldridge Assistant Attorney General