Jerry Boggess v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: October 23, 2025
• Docket: 2024-SC-0028
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 23, 2025 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0028-MR

JERRY BOGGESS APPELLANT

ON APPEAL FROM MUHLENBERG CIRCUIT COURT V. HONORABLE BRIAN W. WIGGINS, JUDGE NO. 23-CR-00140

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Following a jury trial in which the jury convicted Jerry Boggess of

committing multiple counts of sexual abuse and sodomy against his step-

grandchild N.G. (child), the Muhlenberg Circuit Court sentenced Jerry Boggess

to a total of thirty years of incarceration. Boggess appeals, arguing that

reversible errors occurred during his trial. Although errors occurred, the

preserved errors were harmless, and the unpreserved errors were not palpable.

Accordingly, reversal for a new trial is unwarranted.

I. FACTUAL AND LEGAL BACKGROUND

Child, who had recently turned twelve-years-old, lived with her maternal

grandmother and her step-grandfather, Boggess. Child’s grandmother and

Boggess had lived together for sixteen years before they married in February

2022. On February 12, 2023, at child’s belated birthday party, law enforcement

was called to their home in Greenup, Kentucky for an unruly subject and

possible sexual assault. Child told family members that Boggess began

sexually abusing her when she was seven years old, and that she had video

evidence to support her accusations, but her family members did not believe

her.

The brief video presented as evidence by child (the bedroom video)

depicted Boggess shirtless on the bed in his room, touching child’s body. The

footage is ambiguous as to whether something inappropriate occurred as

certain actions were blocked by child’s body or happened “off screen.” Still

screen shots taken from the video which were admitted into evidence showed

that Boggess’s hand was moving up child’s inner thigh but did not definitively

show whether he touched her vaginal area. In child’s initial statements to the

police and a social worker, she accused Boggess of touching her vagina, which

she called her goose in the video and also of having committed various other

acts of inappropriate sexual contact toward her. According to Detective Chris

Flener’s testimony, this video evidence led to his decision to seek charges

against Boggess.

Child was temporarily removed from her home, placed with another

relative, and then later placed with her biological mother. Although child’s

relatives were warned against discussing the situation with child, there was

evidence they did not honor this request.

2 In her child advocacy center (CAC) interview, child made the following

detailed allegations: (1) Boggess would touch and penetrate her vagina with his

finger every morning before school; (2) Boggess made her give him oral sex for

the return of her phone; (3) Boggess made her give him oral sex in the garage;

(4) Boggess sucked on her breasts; (5) Boggess sucked on her vagina; and (6)

child was touched inappropriately according to the video evidence presented by

child at her twelfth birthday party.

On April 14, 2023, Boggess was charged by indictment with five counts

of first-degree sexual abuse, victim less than twelve years of age, and three

counts of incest, victim less than twelve (12) years of age. On October 20, 2023,

two counts of sexual abuse were dismissed with prejudice. On October 30,

2023, the Court amended the indictment to change the counts relating to

incest to sodomy in the first-degree, victim less than twelve (12) years of age.

This change was warranted because Boggess had not been child’s step-

grandfather until after those alleged events occurred.

Child was brought by her mother to a meeting with the prosecutor, and

presented a letter to him stating she lied about the initial allegations she made

against Boggess. This letter 1 was admitted into evidence at the trial:

Date: 7-7-2023 Dear [Prosecutor], I [child’s first and last name] has something to say about Jerry Boggess I lied about him touching me inapropret I was just mad because he wouldn’t help me clean my room so I took my camrea in the room and while he was tickling me i videoed it to make it

1 This letter is transcribed exactly as written with child’s errors.

3 look like it. im sorry I lied I just didnt want to clean my room bye myself. sincerly [child’s first and last name],

Later during that meeting, when child met separately with the prosecutor

and the victim advocate, child stated that the letter was a lie.

At trial, the bedroom video was the centerpiece of the Commonwealth’s

case against Boggess. The trial court granted the Commonwealth’s motion to

treat child as a hostile witness. Child stated that she had lied and had never

been touched inappropriately but admitted to making the statements regarding

the abuse during her CAC interview. These prior CAC interview statements

were used to impeach her trial testimony and as substantive evidence. Child

testified that in the video Boggess was tickling her and not touching her

inappropriately. She testified she made the allegations because Boggess did not

help her clean her room and the details she provided were based on the Fifty

Shades of Grey film series. Boggess testified that in the video he was tickling

child and he had never engaged in any inappropriate contact with child.

There was no physical evidence and therefore, the jury primarily had to

determine what the bedroom video depicted, whether child was telling the truth

at trial, or whether child was telling the truth in her previous statements.

Other evidence included jailhouse phone calls between Boggess, his wife, and

child’s mother, and Boggess’s statement to the police.

The jury returned a verdict finding Boggess guilty of three counts of

sexual abuse in the first-degree (two counts for a victim less than twelve years

4 of age and one for victim less than sixteen years of age) 2 and three counts of

sodomy in the first-degree, victim less than twelve years of age. The jury

recommended sentences of five years on all of the sexual abuse counts, twenty

years on all of the sodomy counts, and that all the sodomy counts and one of

the sexual abuse counts be run concurrent, and the two other sexual abuse

counts be run consecutive, for a total of thirty years of incarceration. The trial

court sentenced Boggess in accordance with this recommendation and also

imposed the statutorily required five years of conditional discharge.

Boggess appeals to this Court as a matter of right.

II. ANALYSIS

Boggess argues the following trial errors occurred: (1) the trial court

erred when it declared child a hostile witness when she recanted and allowed

the Commonwealth to ask leading questions that went beyond impeachment

into testimony; (2) the trial court erred when it allowed the Commonwealth to

elicit interpretation of an ambiguous video and unclear audio recordings; (3)

the prosecutor’s questions about his personal conversation with child were

improper; and (4) the errors amounted to cumulative and reversible error.

Regarding the claimed errors which were preserved by contemporaneous

objection, we review the trial court’s evidentiary rulings for abuse of discretion.

Boyd v. Commonwealth, 439 S.W.3d 126, 129 (Ky. 2014). The trial court

2 The count for sexual abuse in the first degree, victim less than sixteen years of

age, was for Boggess’s conduct at child’s birthday party (which was partially recorded in the bedroom video) which occurred after child’s twelfth birthday.

5 abuses its discretion when its decisions are arbitrary, unreasonable, unfair, or

unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999). However, “[a] non-constitutional evidentiary error may be

deemed harmless . . . if the reviewing court can say with fair assurance that

the judgment was not substantially swayed by the error.” Winstead v.

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).

We review the non-preserved errors under the palpable error standard

provided in Kentucky Rules of Criminal Procedure (RCr) 10.26: “A palpable

error which affects the substantial rights of a party may be considered . . . by

an appellate court on appeal, even though insufficiently raised or preserved for

review, and appropriate relief may be granted upon a determination that

manifest injustice has resulted from the error.”

A. The Trial Court did not Err in Allowing the Commonwealth to Treat Child as a Hostile Witness and in Allowing the Admission of her Prior Inconsistent Statements into Evidence.

At trial the defense was sure child would recant when she testified based

on its opening statement; the defense stated that the jury was going to hear

testimony from child herself that: the sexual abuse did not happen, she told

the police it did because she was mad at Boggess, she is sorry, they were just

playing a game they usually play, and he did not touch her private parts.

The Commonwealth asked child various preliminary questions. After

establishing when child stopped living with her grandmother and Boggess, the

following two exchanges took place:

6 Com 3: Do you remember what was going on that day?

Child: I told a lie that I shouldn’t have told because my grandparents would not help me clean my room.

Com: Well, um, I was just talking about what was going on in your life that day. ....

Com: Do you know why you don’t live with your Mamaw and Papaw anymore?

Child: Because I told a lie.

Com: Do you know why you are here today?

Child: Because I told that lie, and then I told the truth and we’re trying to figure out which one’s the truth.

These two exchanges with the Commonwealth confirmed that child’s testimony

would support Boggess as the defense had anticipated.

The Commonwealth then asked permission to treat child as a hostile

witness. The trial court asked if defense counsel had any issue with that and

the defense answered: “I’m not sure we’ve necessarily gotten there yet, but I’m

sure it’s coming.” Thus, defense counsel only suggested that the motion was

premature (rather than unwarranted). The trial court granted the

Commonwealth’s request to declare child a hostile witness and the

Commonwealth proceeded to use leading questions to question child’s account.

The Commonwealth questioned child about the statements she made in

her CAC interview, intermittently playing portions of the interview for child.

3 The Commonwealth.

7 This included child agreeing during the interview that she would tell the truth.

Each time, child confirmed that her previous statements were false.

Substantially later during child’s testimony (after child had been

questioned about the statements she made at the CAC regarding Boggess

penetrating her vagina with his finger, and being made to perform oral sex on

Boggess in his room and in the garage, and the Commonwealth was beginning

to ask child about telling the CAC that Boggess had sucked on her breasts and

performed oral sex on her), the defense objected on a variety of grounds to the

way the Commonwealth was questioning child, including that child should not

have been declared a hostile witness. The trial court again determined that the

answers child provided to the questions posed by the Commonwealth, in which

she stated that her prior statements were not true, were sufficient to establish

child as a hostile witness.

1. It was Proper to Treat Child as a Hostile Witness where she Recanted her Previous Statements at Trial.

The Kentucky Rules of Evidence (KRE) 611(c) states that “[l]eading

questions should not be used on the direct examination of a witness except as

may be necessary to develop the witness’ testimony.” However, KRE 611(c)

establishes an exception to this general rule: “When a party calls a hostile

witness, an adverse party, or a witness identified with an adverse party,

interrogation may be by leading questions.”

As noted in Tamme v. Commonwealth, 973 S.W.2d 13, 27 (Ky. 1998), “the

proscription against leading questions is not absolute” and “judgments will not

be reversed because [the trial court allowed the use] of leading questions 8 unless the trial judge abused his discretion and a shocking miscarriage of

justice resulted.” Where it is obvious that the Commonwealth’s own witness is

hostile to the prosecution, the trial court may properly exercise its discretion

“by invoking the familiar rule permitting a hostile witness to be examined as if

upon cross-examination.” Brown v. Commonwealth, 440 S.W.2d 520, 524 (Ky.

1969). Treating such a witness as a hostile witness, serves “to promote the

orderly proceeding of the trial so that competent evidence [can] be elicited from

the reluctant witness[.]” Id.

Here, by repudiating her prior statements which supported the

prosecution of Boggess, child became a hostile witness. All statements made by

child after this motion was granted support child’s status as a hostile witness.

We are satisfied that the trial court did not abuse its discretion in allowing the

Commonwealth to treat child as a hostile witness and ask her leading

questions.

2. Any Misleading or Inaccurate Leading Questions Asked of Child Did Not Result in Palpable Error.

Boggess connects his claimed error of the trial court’s ruling that child

could be treated as a hostile witness as prejudicing him based on certain

questions that were asked of child about her previous statements, which

resulted in her admitting she had previously made such statements.

Since we have determined that the trial court did not err in permitting

the Commonwealth to treat child as a hostile witness, we must conclude that

Boggess’s objections on that basis did not preserve any claim of error as to the

inaccuracy of certain leading questions asked of child. While some of the 9 Commonwealth’s questions may have been unartfully worded and the

Commonwealth may have interpreted ambiguous language in a manner

favorable to the Commonwealth, without any specific objections being made to

those questions, they may only be reviewed for palpable error at this juncture.

We further note that Boggess had the opportunity to clarify any misleading

testimony by child on cross-examination, but failed to examine her about her

admissions to statements that she may not have actually made or whether any

of her statements were misinterpreted by the Commonwealth as summarized

through its questions.

KRE 613(a) provides the method for questioning a witness as to prior

statements:

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.

Our Court has noted that Cole v. State, 65 Tenn. 239 (1873), provides the

best rationale behind this process:

Where it is intended to impeach the witness by proving that he made statements out of court contrary to what he has testified in court, the witness should be asked whether he said or declared that which it is proposed to prove by the impeaching witness, that he did say or declare, and the time and place and person to whom the declaration was made should be stated in the question.

The object of the question is to contradict him, and it is but fair to the witness to refresh his recollection as to the declaration or words used and proposed to be proved, and also by stating time, place and other circumstances calculated to refresh his memory.

10 Noel v. Commonwealth, 76 S.W.3d 923, 930 (Ky. 2002) (overruled on other

grounds by Mason v. Commonwealth, 559 S.W.3d 337, 341–42 (Ky. 2018))

(quoting Cole, 65 Tenn. at 241 (citations omitted)).

The Commonwealth properly complied with this rule by asking child with

specificity about the prior statements she made during the CAC interview.

Once she denied such statements were true, the Commonwealth showed her

the video of what she had previously stated, asked if she had in fact made such

statements, and gave her an opportunity to explain the contradictions. When

child confirmed that she had made such statements, but continued to state

that she had lied then, impeachment with her prior inconsistent statements

was appropriate.

These prior inconsistent statements were also admissible as substantive

evidence under the Jett rule 4 as codified by KRE 801A. Shepherd v.

Commonwealth, 251 S.W.3d 309, 322 (Ky. 2008); Thurman v. Commonwealth,

975 S.W.2d 888, 893–94 (Ky. 1998); Porter v. Commonwealth, 892 S.W.2d 594,

596 (Ky. 1995).

KRE 801A(a) provides in relevant part:

Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is:

(1) Inconsistent with the declarant’s testimony[.]

4 Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969). See Askew v.

Commonwealth, 768 S.W.2d 51, 56 (Ky. 1989) (explaining the Jett rule).

11 As explained in Thurman, “even if the Commonwealth’s ‘primary purpose’

in calling [child] as a witness had been to impeach her with her prior

inconsistent statements, the evidence contained in those statements was not

‘otherwise inadmissible.’” Thurman, 975 S.W.2d at 894 (quoting United States

v. Morlang, 531 F.2d 183 (4th Cir. 1975)). However, just as in Thurman, we will

not assume that the Commonwealth in calling child did so with the purpose of

impeaching her so that her prior inconsistent statements could be admitted

rather than having her testify truthfully 5 about what Boggess had done to her.

Id.

As to the specific instances when Boggess states that suggestive leading

questions resulted in child agreeing to more damning actions than were on the

video of her CAC interview, we disagree that most of these questions were

improper.

a. Boggess Pushing his Finger “Up to the Bottom Knuckle”

The Commonwealth asked child if during her CAC interview she said

Boggess “would stick his finger in [her] goose all the way up to the bottom

knuckle” and she agreed that she said that. The basis for this question was

child’s description of the vaginal touching and digital penetration which would

occur while she was in Boggess’s bedroom in the mornings before school when

5 The prosecutor in continuing to prosecute the case must have had a good

faith basis for believing that child’s statements confirming that sexual abuse occurred (given on the day of her birthday party, at her CAC interview, and in the Commonwealth Attorney’s office the day she brought in the recantation letter) were true statements, and her repudiation in the letter and at trial were false statements.

12 her grandmother was outside with child’s brother, waiting with him for the bus

to arrive.

When asked to describe the digital penetration of her vagina, child

explained: “He would stick his hand—his hands are big—he would take this

finger [child indicates the index finger on her right hand, touching the base of

it with her other hand] and he would stick it all the way up in me and I would

push him off because it hurt[.]”

In clarifying this statement, the following exchange took place between

the CAC interviewer and child:

CAC: He takes that hand, which is the right hand, right?

Child: Uh-huh. Right.

CAC: And he takes the right hand and goes in your pants.

Child: Yeah.

CAC: And you said he takes his whole finger, which is the finger you showed me.

CAC: Okay. And are you saying inside of your goose, is that what you are saying?

Child: Yes.

CAC: Okay. And when he would put it inside you, what would he do with his finger when he put it inside of you?

Child: He would shove it there until it got right here [indicating the base of her right index finger] and then he’d push it out because it hurt[.] ....

13 CAC: And his right hand is in your pants and his whole finger is going inside of you.

Any penetration by Boggess with a part of his body into child’s vagina

constituted sexual abuse regardless of how deeply she was penetrated. In fact,

such conduct constituted first-degree rape.

KRS 510.040 provides that “(1) A person is guilty of rape in the first

degree when: . . . (b) He engages in sexual intercourse with another person who

is incapable of consent because he: . . . 2. Is less than twelve (12) years old.”

KRS 510.010(8) defines “sexual intercourse” as “includ[ing] penetration of the

sex organs of one person by any body part” and specifies that “[s]exual

intercourse occurs upon any penetration, however slight[.]” (Emphasis added).

The question of penetration was irrelevant for the charged offense of

sexual abuse in the first degree. KRS 510.110 provides: “(1) A person is guilty

of sexual abuse in the first degree when: . . . (b) He or she subjects another

person to sexual contact who is incapable of consent because he or she: . . . 2.

Is less than twelve (12) years old” or “(c) Being twenty-one (21) years old or

more, he or she: 1. Subjects another person who is less than sixteen (16) years

old to sexual contact[.]”

KRS 510.010(7) defines “sexual contact” in relevant part as:

[M]ean[ing] the touching of a person’s intimate parts or the touching of the clothing or other material intended to cover the immediate area of a person’s intimate parts, if that touching can be construed by a reasonable person as being done: (a) For the purpose of sexual arousal or gratification of either party; [or] (b) For a sexual purpose[.]

14 Penetration of any amount is irrelevant to the crime of sexual contact as that is

not an element of that crime. Therefore, the depth to which Boggess inserted

his finger was immaterial.

Having watched the CAC interview played for child before the question

was asked, it appears that child is pointing to the base of her right index finger

both times. However, even if her gesture was more generally to her hand, child

also specifically stated that Boggess “would stick it all the way up in me” and

agreed with the characterization that Boggess’s “whole finger is going inside of

you.”

“All the way up” and “whole finger” can reasonably be interpreted to

mean Boggess’s finger penetrated child to the point where this finger met

Boggess’s hand, which would be the same as “up to the bottom knuckle” of his

finger. Even if the characterization of “up to the bottom knuckle” was suggested

by the leading question and not child’s exact phrasing, this was not an

unreasonable interpretation of child’s gesture toward her finger and

conversation at the CAC.

b. Boggess Screaming when He Received Oral Sex

Child admitted to stating at the CAC interview that Boggess made her

give him oral sex by making her suck his “man private” to get her phone back.

Boggess argues that it was a mischaracterization for the Commonwealth to ask

whether when she started to “suck it” that Boggess “screamed” and that child

instead said he was “grunting” on the CAC video. The Commonwealth, after

reviewing the CAC video regarding child’s statement that she gave Boggess oral

15 sex in exchange for getting her phone back, had the following exchange with

child:

Com: Now isn’t it true as well that when you would start to suck it, Papaw Jerry would scream or make noises.

Child: He didn’t, no.

Com: Okay.

Child: We didn’t even do anything.

Com: You did tell the child advocacy center that he would scream, right?

Having reviewed the CAC video that was played for child, child did indeed

state that Boggess would scream when she started to give him oral sex.

CAC: And when you, when he made you start to suck it, what happened?

Child: He would scream.

CAC: He would scream. Tell me about that.

Child: Like he would say, “keep doing it[.]”

We also note that a mischaracterization of child’s prior statement if made

in good faith would not have even prejudiced Boggess in that his exact reaction

to receiving oral sex was not relevant to whether he committed the underlying

crime. KRS 510.070(1) specifies: “A person is guilty of sodomy in the first

degree when: . . . (b) He engages in deviate sexual intercourse with another

person who is incapable of consent because he: . . . 2. Is less than twelve (12)

years old.” KRS 510.010(1) defines “deviate sexual intercourse” as including

“any act of sexual gratification involving the sex organs of one person and the 16 mouth . . . of another[.]” Screaming is not necessary to establish that Boggess

had child engage in the act for “sexual gratification.”

c. Taking Longer to Examine Child about her Prior Statement than the Time It Took her to Make her Prior Statement

Child admitted to stating that Boggess made her perform oral sex on him

in the garage. Boggess argues on appeal that it prejudiced him to allow the

Commonwealth to examine child about this statement in a manner that took

longer than when she talked to the CAC about what occurred. There is no error

in the Commonwealth choosing to examine child carefully about every detail of

this statement, which made the questioning take longer than the child’s

original statement about this conduct, especially where child repeatedly denied

that this event had taken place but admitted that was what she had told the

CAC and the Commonwealth was trying to make the point that child had given

a lot of details about this supposedly made-up event.

d. Characterizing Child as Saying During the CAC Interview that Boggess had Performed Oral Sex on her More than One Time

Boggess argues that the Commonwealth harmed him by asking child a

question that was not supported by the evidence, namely that she told the CAC

that Boggess had performed oral sex on her more than one time, to which she

responded “yes.” We agree that this mischaracterization was not supported by

the evidence. In fact, in her interview to the CAC, when asked if Boggess had

sucked on her “goose” one time or more than one time, child responded “one

time.”

17 However, Boggess fails to establish this error prejudiced him, let alone

constituted manifest injustice under the palpable error standard. Child had

also detailed that many other acts of abuse had happened over many years,

stating in her CAC interview that this had been going on since she was six or

seven years old. So, this mischaracterization was unlikely to have much of an

impact considering that child admitted that she had told the CAC that Boggess

had penetrated her vagina with his finger in the mornings before school and at

night when he tucked her into bed and made her give him oral sex on more

than the occasions for which she provided a detailed account. Additionally, the

Commonwealth did not linger on this mischaracterization or emphasize it.

Therefore, the suggestion that there was at least one additional uncharged act,

while in error, had little potential for prejudicing him. Accordingly, this untruth

does not satisfy the palpable error standard.

e. Mischaracterizing Child’s Previous Statement as Being that Boggess Was Going to Tell the Police He Was Trying to Tickle Her

Boggess argues that child was asked questions that mischaracterized

what her statements were to the child advocacy center regarding Boggess’s

statement as to what he was doing during the bedroom video. Child stated

during her CAC interview that “he [Boggess] tried to tickle me, is what he told

the police, but he tried to go for my goose but I wouldn’t let him, so I pushed

him off.” Later child stated to the CAC that Boggess touched her vagina

through her clothing.

18 The Commonwealth asked child about this prior statement as follows:

Com: [Y]ou did tell the child advocacy center that he was trying to tickle you, right?

Com: Or you told the child advocacy center, you told the police, he was going to tell the police he was trying to tickle you.

Child’s CAC interview statement did not include child communicating

that Boggess ever expressed an intent to her that he planned to lie to the police

with a prefabricated answer.

We agree that there was not a good faith basis for such a question, and

this question was therefore inappropriate as not grounded in child’s previous

statement. We also agree that this statement implied that Boggess was aware

of his guilt and trying to cover it up through a premeditated lie. However,

Boggess does not suggest that the Commonwealth engaged in prosecutorial

misconduct by deliberately asking a misleading question to try to gain a

conviction.

As is true of all such questions, Boggess never objected to this question

and also failed to question the child further during cross-examination to clarify

what she said and what she meant.

Therefore, we must examine whether asking a leading question which

called for the child to answer falsely by confirming she made a statement that

she did not in fact make, constituted palpable error. While the statement child

confirmed she made, that Boggess had a plan to answer falsely that he was 19 tickling her, does not in fact conform to her previous statements, its likelihood

of harming Boggess’s defense was actually quite small. Either the jury was

going to believe that child’s previous statements of abuse were true, or her

recantation and Boggess’s account was true. The case simply did not hinge on

whether Boggess had formulated a plan of how to lie that he told child about,

or he simply spontaneously lied when questioned by police. Therefore, while

clear error occurred when the Commonwealth asked child this question and

she confirmed she made a statement she did not in fact make, such error did

not constitute palpable error.

While clear error occurred regarding the two leading questions which

resulted in confirmatory answers that were not supported by child’s previous

statements, no manifest injustice was thereby established.

B. It was Error to Allow Video and Audio Narration and Interpretation by Persons without Personal Knowledge, but Such Error Did Not Constitute Reversible Error.

Boggess seeks review of narration and interpretation provided regarding

three different recordings played for the jury: the bedroom video, audio of his

police interview, and audio of his jail phone calls.

As to the bedroom video, Boggess argued narration was inappropriately

provided during the opening statement, during Detective Flener’s testimony,

and during child’s testimony. As to the audio of his police interview and jail

phone calls, which were both played during Detective Flener’s testimony,

Boggess argues that Detective Flener should not have been allowed to interpret

incomprehensible audio content.

20 Regarding whether such narrative interpretation of the video and audio

recordings was in error, this is governed by KRE 701 and KRE 602. As

explained in Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014):

KRE 701 limits opinion testimony by a lay witness to that which is “[r]ationally based on the perception of the witness; [and] . . . [h]elpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” KRE 701(a)-(b). In addition, KRE 602 requires a witness to have personal knowledge before being allowed to testify about a subject. We have held that a lay witness “may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.” Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky. 2009) (emphasis in original). “It is for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness.” Gordon v. Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995).

Therefore, how or if a witness can properly testify about a video or audio

recording will depend upon whether the witness actually witnessed the

recorded events as they were occurring and has personal knowledge of them,

as is required for proper lay opinion testimony, or is merely interpreting them

from the recording (in which case the jury can draw its own inferences from the

recording and the opinion testimony is unnecessary). See Davidson v.

Commonwealth, 548 S.W.3d 255, 258-59 (Ky. 2018) (relying on Robert G.

Lawson, Kentucky Evidence Law Handbook § 6.05[2][c], 417 (5th ed. 2013) and

7 John Henry Wigmore, Evidence in Trials at Common Law § 1917 (4th ed.

1978)). A witness may properly narrate events that the witness perceived in

real time which are also depicted on a video. Boyd v. Commonwealth, 439

S.W.3d 126, 131 (Ky. 2014).

21 Where a witness testifies to an event that the witness did not perceive in

real time, that part of the witness’s narration violates KRE 602 and KRE 702,

because it exceeds the witness’s personal knowledge based on the witness’s

own perception. McRae v. Commonwealth, 635 S.W.3d 60, 70 (Ky. 2021);

Davidson, 548 S.W.3d at 258; Boyd, 439 S.W.3d at 131–32. However, such

error may be harmless if the jury watched the video or heard the audio

recording and could interpret the source material independently from the

witness’s testimony interpreting the recording, thus providing “fair assurance

that the judgment was not ‘substantially swayed by the error.’” Boyd, 439

S.W.3d at 32 (quoting Winstead, 283 S.W.3d at 388).

A police officer who investigates a crime may appropriately offer lay

witness testimony which explains the relationship between different items of

evidence in the context of how the officer investigated what occurred. McRae,

635 S.W.3d at 70.

1. The Bedroom Video

In total, the bedroom video was played nine times: once in opening, four

times with child, once with Detective Flener, three times with Boggess, and

once in closing. Boggess argues that the narrative interpretation of the video—

by the Commonwealth during opening statements, by Detective Flener during

his testimony, and by child during her testimony—was in error. Boggess states

he objected to this narration during opening statements and during Detective

Flener’s testimony, thus preserving that issue those times, and seeks palpable

error review for the narration during child’s testimony.

22 While Boggess makes general complaints about the number of times the

bedroom video was played to the jury, he did not object to the number of times

the video was played at trial by the Commonwealth (for being cumulative or

otherwise) and he does not raise this as an issue for appellate review. Boggess

fails to argue on appeal that this “piling on” of repeatedly playing the bedroom

video was in error and prejudiced him. The inordinate emphasis placed on the

video and the playing of it numerous times appears to be inappropriate.

However, as that is not the basis of Boggess’s appeal, we only consider whether

the narration and interpretation of this video was in error under the relevant

standards of review.

a. Opening Statement

Prior to opening statements, the trial court properly instructed the jury

that opening statements are not evidence.

In its opening statement, the Commonwealth explained that Boggess had

been engaging in inappropriate sexual contact with child, detailed what this

conduct entailed, and explained that child knew something had to change and

made a video on the day of her twelfth birthday party. When the

Commonwealth stated it would play child’s video for the jury, Boggess objected

to this display of evidence during opening statements. During their sidebar,

defense counsel stated that “I think certainly he [the prosecutor] is allowed to

outline what he believes the contents of the video are[.]” Defense counsel

explained that he did not think the video could be showed because it was not

23 yet in evidence but agreed that it would be admitted into evidence later. 6 After

the trial court overruled the objection due to both sides agreeing that there was

no question as to whether the bedroom video would be entered into evidence,

the Commonwealth played the full video.

Boggess objected to the Commonwealth’s subsequent interpretive

commentary when the Commonwealth stated: “And as you saw, the defendant

reaches his hand toward [child’s] vagina.”

The defense counsel argued “that’s not what the video shows[,]” “he’s

making one conclusory statement[,]” and “he’s interpreting what this video is

showing[,]” and he’s “describing it incorrectly.” The trial court overruled this

objection on the basis that the Commonwealth could properly provide an

outline of what the evidence shows and was not moving into argument.

Once the Commonwealth’s opening statement resumed, the

Commonwealth stated: “The defendant stuck his hands between [child’s] legs,

touching her vagina. You see on the video, defendant’s hand.”

The Commonwealth attempted to re-play a specific portion of the footage

but was stopped by the trial court who instructed “we need to move on.”

The Commonwealth proceeded to describe its interpretation of the video

footage:

In the video you see the defendant’s hand go down and touch [child’s] vagina, which she refers to as her “goose.” You can see as [child] moves her wrist, the defendant turned his hand, and there, the defendant’s hand is on [child’s] vagina in the bottom left-hand corner of the screen. Then the defendant pulls his hand away,

6 The video was in fact introduced into evidence during child’s testimony.

24 [child] closes her legs and pulls them together. Yet, the defendant was not finished. He tried to grab [child’s] breasts. [Child] attempted to get the defendant off of her. Finally, the defendant then raises up and motions for [child] to go on.

The defense made no additional objections to these statements.

In the defense’s opening statement, it described how Boggess and child

had a good relationship, commonly engaged in “horse-play” which would be

corroborated by the testimony of child’s family members, and focused on her

admission that she had made up the allegations of abuse and would testify

that it never happened. The defense then provided its own interpretation of

what the video depicted, that it “showed them [Boggess and child] playing

around.”

“The purpose of opening statement is to outline for the jury what the

proponent expects his proof to be.” Parker v. Commonwealth, 241 S.W.3d 805,

808 (Ky. 2007). See RCr 9.42. “The parties are granted wide latitude in making

their opening statements, in part, because what is said in opening statement is

not evidence. However, that latitude is not limitless, and a party should avoid

discussing matters that are not admissible.” Jefferson v. Eggemeyer, 516

S.W.3d 325, 338 (Ky. 2017) (internal citation omitted).

While there is certainly the temptation to advance one’s argument at the beginning of the trial so that the jury understands not only what the testimony is expected to be, but the proponent’s theory of the case as well, this is not the intent of opening statement, and pushing the envelope results in error[.]

Parker, 241 S.W.3d at 808.

25 Our Court has allowed prosecutors to display admissible items of real

evidence to the jury during opening statement as noted in Fields v.

Commonwealth, 12 S.W.3d 275, 281 (Ky. 2000), and demonstrative materials

as noted in Parker, 241 S.W.3d at 808. However, “when evidentiary materials

are used [in opening statements], they must at least be authenticated or their

admissibility determined before their use. Likewise, commentary should be

linked to that which can be supported by the evidence reasonably expected to

be admitted.” Id. at 809.

Prior to opening statements, the trial court correctly instructed the jury

that opening statements are not evidence. While the Commonwealth explained

its theory of what had occurred in the video and the defense provided its own

theory, it was the evidence that followed at trial which the jury was to rely

upon in making its decision. Boggess does not intimate that the jury failed to

follow the trial court’s instruction to not consider the opening statements as

evidence.

The parties agreed that the bedroom video was admissible and would

come into evidence; it did in fact come into evidence without the defense

making any objection to it during child’s testimony. We are not satisfied that it

was proper for the bedroom video to be played during the Commonwealth’s

opening statement. However, this error was ultimately harmless as the video

was admitted into evidence and the parties depicted in the video testified and

made statements about the incident depicted by the video.

26 Playing video evidence and then arguing about the inferences to be

gleaned from it goes far beyond what is proper for an opening statement.

However, the defense only objected to one statement the Commonwealth made

about what the bedroom video depicted, that the video showed Boggess

reaching toward child’s vagina. The defense’s objection to this statement is well

taken. The video footage was ambiguous as to what was occurring, and the

Commonwealth was making an argument about the inferences that could be

drawn from the footage and stating those inferences as established fact. The

trial court erred when it permitted the Commonwealth to make such a “closing

argument style” conclusion in its opening statement.

Boggess also argues that other statements the Commonwealth made

about the bedroom video after his objection was overruled were also in error.

They include the even more damning statements that the video showed

Boggess touching child’s vagina and having his hand on child’s vagina (rather

than merely reaching toward it). Boggess’s prior objection did not preserve an

objection to these later statements which went far beyond the Commonwealth’s

previous statement.

However, we conclude that as to the preserved error, the

Commonwealth’s statement was ultimately harmless and as to the unpreserved

errors, the Commonwealth’s statements did not constitute palpable error. The

presentation of the evidence included: the video; still shots from the video that

the Commonwealth purported established that Boggess touched child’s vagina

through her clothing; the testimony of child and Boggess, who were the two

27 people who were present and depicted on the video, and who both had personal

knowledge about what occurred when the video was being filmed; and child’s

and Boggess’s prior statements about what occurred. The jury had sufficient

evidence to able to decide for itself what the video depicted, how it supported or

did not support specific count tied to the events depicted and the other the

allegations, and what occurred on that occasion that was not memorialized by

the video.

b. Detective Flener’s testimony

During Detective Flener’s testimony, the Commonwealth asked him if he

had seen the video presented by child. Detective Flener responded

affirmatively. The prosecutor then stated he would show the video to Detective

Flener.

Prior to the video being played, defense counsel objected to Detective

Flener offering any interpretation of the video as the video itself was the “best

evidence.” The Commonwealth argued that Detective Flener had to review the

video as part of his investigation in deciding to bring charges. While the trial

court expressed reservations regarding the showing of the video, the trial court

concluded that the Detective Flener could state what he thinks the video shows

and permitted the Commonwealth to proceed.

After the Commonwealth showed the video to Detective Flener and began

to question him, the trial court had counsel approach and cautioned the

Commonwealth to limit its questions to how seeing the video led to the bringing

of charges. The following exchange then took place:

28 Com: Based on your review of that video, what did you believe had occurred as far as contact between the defendant and the victim [child] here?

Flener: It appeared that Mr. Boggess motioned for her to come over to get on the bed beside him. He reached his hand up between her knees, up on her inner thigh and grabbed her vaginal area.

Com: Is that what led you to seek the charges in this case?

Flener: Yes.

The Commonwealth then introduced a series of still pictures taken from

screen shots of the video for identification and Detective Flener confirmed they

were accurate stills from the video and described them as showing how

Boggess began to touch child, with his arm going up her leg or inner thigh area

through to her vaginal area. The photos were then admitted.

It was appropriate for the Commonwealth to ask Detective Flener about

the video and the still photographs for purposes of establishing why he chose

to bring charges. Had he merely stated that reviewing these materials lent

support to child’s allegations, leading him to file charges, that would have been

permissible. What was unwarranted was to allow Detective Flenner to state

what he thought the bedroom video showed, specifically allowing him to opine

that it showed Boggess touching child’s vaginal area. It was the province of the

jury to decide what the video showed. Yet this specific testimony did not result

in another objection.

Detective Flener did not have any personal knowledge about what was

depicted in the video.

29 Having reviewed this evidence, the video and the screenshots show that

Boggess had his hand near the general area of child’s crotch, but it is unclear

whether he touched her inappropriately or instead only had his hand on her

leg and her lower abdomen. This evidence was not definitive and instead could

support varied inferences about what conduct it was depicting.

As with the similar statement provided by the Commonwealth during its

opening statement, we conclude that Detective Flener should not have been

allowed to opine that the bedroom video showed Boggess was touching child’s

vaginal area. This error, to the extent it was preserved, was ultimately

harmless; this error, to the extent it was not preserved, did not constitute

palpable error as the jury could judge for itself what the video depicted.

c. Child’s Testimony

Throughout child’s testimony, the Commonwealth played the bedroom

video four times, asking her to confirm what the video depicted through leading

questions backed up by her prior inconsistent statements. Boggess argues that

the Commonwealth exceeded the bounds of questioning child about her prior

statements and any inconsistencies with her current recantation testimony

when it “inserted an interpretation of the video into the questioning” and

requests palpable error review.

The examples that Boggess provides are that “the Commonwealth asked

if [child] hesitated going back because she was afraid that Jerry would touch

her vagina[,]” “used freeze frame images to interpret that Jerry’s hand was on

[child’s] vagina at exact moments when [child’s] original statement was not

30 specific as to any exact moment when touching occurred,” and “sought to

contradict [child’s] testimony by playing a short isolated clip.”

These examples occurred in the course of the Commonwealth’s detailed

questioning of child about her prior statements and what the video showed.

Child denied that her previous statements to the CAC about this incident were

true, and instead stated that Boggess was tickling her thighs, under her thighs

and her bellybutton, rather than putting his hand on her vagina and going for

her breasts as she had previously stated. These series of detailed questions,

backed up by still photos from the video, were appropriate to clarify child’s

statements. How child was reacting in the video could cast doubt on her

recantation.

Child testified that she set out to fabricate “fake evidence” that Boggess

was touching her because she was mad that he would not help her clean her

room and explained “I knew he was going to tickle me like he does every

morning so I figured I could make it look like he was touching me when he was

not.” 7

Child, as a party to the events recorded in the video, could certainly

interpret the actions depicted on the video and what was happening at that

time, whether captured in the video footage or not. The Commonwealth could

7 Boggess also comments about inappropriate commentary regarding the video

during the Commonwealth’s closing argument, in which the Commonwealth claims to hear child gasp. This is not raised as a specific error, and furthermore, great latitude is permitted in closing arguments, including to make inferences from the evidence presented.

31 properly question her about those events to try to examine her for any

inconsistencies in her current account. Additionally, Boggess testified and gave

his own interpretation of the events depicted and what was really going on

during this time. The jury saw the bedroom video and had still photographs

from the video. Because the jury could properly judge what was depicted

therein, these questions regarding what could be inferred from the video

certainly do not constitute palpable error. It was properly left for the jury to

judge what had occurred given all the evidence before it.

2. Audio of Boggess’s Police Interview

Boggess seeks palpable error review of Detective Flener’s interpretation of

Boggess’s police interview, arguing that many portions of the audio recording of

the interview were incomprehensible and playing portions of the audio and

then asking Flener to interpret and summarize the conversation was

inappropriate.

Detective Flener was the person who interviewed Boggess. He thus had

personal knowledge of what occurred. The playing of the audio was used to

refresh his recollection of the questions that were asked and how Boggess

answered them. The audio recording was also introduced into evidence.

While the sound quality on the recording as memorialized on the video

record of the trial was poor, 8 we disagree with Boggess that many portions of

8 The audio recording of this interview should have been of better quality when

listened to in-person by the jury, than when it was played in the courtroom and recorded second-hand for appellate review. However, we were unable to compare the audio quality of the recording itself, as though it was admitted into evidence it is not in the physical record before us on appeal. We observe, however, that the audio quality of 32 the audio recording were incomprehensible. However, to the extent that they

were, yet the audio refreshed Detective Flener’s recollection, he could

appropriately testify about what he remembered occurred. The defense could

have also questioned Detective Flener further about the accuracy of his

summaries. Additionally, Boggess testified about the interview, too, and

provided his recollection of what occurred. Finally, as the audio was admitted

into evidence, the jury could judge for itself whether Detective Flener or

Boggess accurately summarized the interview. There is no palpable error under

these circumstances.

3. Audio of Boggess’s Jail Phone Calls

Boggess seeks palpable error review of Detective Flener’s interpretation of

Boggess’s jail phone calls, arguing that this prejudiced him because the jury

had to rely upon Detective Flener’s interpretation because the recorded

statements were largely unintelligible. In this instance, Detective Flener did not

hear these calls as they occurred but instead reviewed the recordings later.

We agree that it was clear error to allow Detective Flener to interpret

these phone calls, but we disagree that manifest injustice resulted from this

error. While we agree that it was difficult to make out who was speaking and

what they were saying on these audio recordings as memorialized in the video

recording of his testimony, we observe that these recordings were admitted into

evidence. Having reviewed the recordings as entered into evidence, it was easy

the jail phone calls in evidence when directly played is far superior to the trial video record in which they were played to the jury.

33 to understand all of the persons who were speaking as the quality was much

better in that format. Therefore, the jury should have been able to hear the

recordings much better at the trial when they were played directly to the jury.

This makes Detective Flener’s interpretation of less importance, as does the

fact that he was cross-examined about his interpretations, and that Boggess

also testified about the phone calls.

While the jury should have been allowed to judge for itself what was said

during the recorded phone calls rather than be given an interpretation by a

witness who did not hear the phone calls as they were taking place, the jury

had the opportunity to listen to the audio of the phone calls for itself and judge

how they should be interpreted. While allowing Detective Flener to interpret the

contents of the calls was clear error, Boggess has failed to establish that

reversal is warranted because allowing such interpretation resulted in manifest

injustice to him.

C. The Prosecutor Erred in Acting as a Witness in Asking Child Questions about Their Personal Conversation, but this Error was Not Palpable.

Boggess argues that he is entitled to a reversal of his conviction because

the prosecutor committed prosecutorial misconduct by acting as a witness

while questioning child about a personal conversation which took place on July

7, 2023, when child gave him the letter and met privately with him and the

victim advocate. Boggess seeks palpable error review.

The prosecutor questioned child twice about her visit to his office.

Specifically, child was questioned about whether she remembered “coming into

my office” and having a meeting with “myself and Miss Marla Laycock in my 34 office” and what child said at that meeting. Child indicated initially that she did

not remember telling the prosecutor and Laycock that everything child “told

law enforcement, social services, and the child advocacy center, . . . was true[.]”

Then child admitted “I did, but you scared me.”

Child also admitted to remembering talking to the prosecutor and victim

advocate about the paper she had brought the prosecutor and remembered

stating to them that “this was hard on [her] family[.]”

Later, near the end of child’s testimony, the prosecutor asked child

additional questions about this meeting between the prosecutor, Laycock and

child, specifically about being asked whether the statement in the letter or in

her previous statement to the police, the social workers, and the child advocacy

center was true, and being asked to pick an option between the two. Child

admitted to telling them that “what [she] put in the letter was not true,” and

that “[she] had been pressured into writing that letter[.]” When asked an open-

ended question about why child had “[told] me and Miss Laycock . . . that what

you wrote in the letter was not true[,]” child indicated that she answered that

way “[b]ecause you were screaming at me and you scared me” and “my mom

could hear you in the front of the building.”

The prosecutor’s repeated questioning of child about matters in which he

had personal knowledge, based on his previous conversations with child, was

highly inappropriate and a violation of the Kentucky Rules of the Supreme

Court (SCR), the Kentucky Rules of Professional Responsibility, specifically

SCR 3.130(3.4)(e), which prohibits lawyers while in trial from acting to “assert

35 personal knowledge of facts in issue except when testifying as a witness” and

SCR 3.130(3.7) which prohibits lawyers from acting as advocates in a trial in

which such a lawyer is likely to be a necessary witness in most circumstances.

Furthermore, the prosecutor’s assertion of facts from his prior conversation

with child also violates KRE 603 and KRE 802 as explained in Holt v.

Commonwealth, 219 S.W.3d 731, 737 (Ky. 2007), because the prosecutor was

unsworn and testifying as to hearsay. As noted in Fisher v. Commonwealth, 620

S.W.3d 1, 13 (Ky. 2021): “Deliberate violations of these rules, depending on

how deliberate and effective they are, can amount to prosecutorial misconduct

and might require reversal.”

Asking about events to which the prosecutor and victim advocate had

personal knowledge, rather than having other counsel question child, made

this prosecutor a witness as to what his questions indicated had occurred.

Perhaps the prosecutor should have withdrawn from representing the

Commonwealth so that he could be called as a witness, but at minimum,

someone else should have questioned child regarding these events.

As in Dillon v. Commonwealth, 475 S.W.3d 1, 19-20 (Ky. 2015), the

prosecutor erred by introducing his own interaction with child in an attempt to

impeach her, thus improperly becoming a witness, in violation of more than

125 years of Kentucky precedent. While child ultimately agreed she had made

the statements he attributed to her, this method of questioning child based on

his own personal knowledge in violation of these rules would make Boggess’s

convictions subject to reversal had the error been preserved.

36 However, we conclude, based upon Dillon, that while the prosecutor’s

impeachment “testimony” regarding his prior conversation with child was error,

and he should have certainly known better, his conduct did not constitute

palpable error because it had little substantive effect on the case as a whole. Id.

at 21-22. Simply put, this exchange was a small portion of the trial and does

not rise to the level of constituting manifest injustice, where child had made

her position clear that she had lied every time she previously stated that the

abuse occurred, and that her recantation in the letter and during her

testimony was her telling the truth. Child’s previous statements as to all the

incidents were well established by her recorded CAC interview answers and

how she had previously answered the prosecutor in telling him that those prior

statements were true was concomitantly of less importance as it was part of a

larger narrative and did not break much “new ground.”

D. No Cumulative Error Occurred.

Finally, Boggess seeks reversal for cumulative error. We have before us

preserved errors that were harmless and unpreserved errors that did not rise to

the level of constituting manifest injustice. The cumulative error doctrine

provides that “multiple errors, although harmless individually, may be deemed

reversible if their cumulative effect is to render the trial fundamentally unfair.

We have found cumulative error only where the individual errors were

themselves substantial, bordering, at least, on the prejudicial.” Brown v.

Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).

37 While it is a close issue, having considered all the errors that occurred

we do not conclude that they rendered Boggess’s trial fundamentally unfair.

III. CONCLUSION

We affirm Boggess’s conviction and sentences by the Muhlenberg Circuit

Court. While Boggess did not receive a perfect trial, he received a fair trial. See

McDonald v. Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). Ultimately, it was

up to the jury to determine what occurred based on the evidence before it, and

this was exactly what the jury did in convicting Boggess of the crimes with

which he had been charged.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller and

Thompson, JJ., concur. Nickell, J., concurs in result only.

COUNSEL FOR APPELLANT:

Jennifer Wade Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General