RENDERED: APRIL 10, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0004-MR
JOHN AULT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 22-CR-00683
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND KAREM, JUDGES.
THOMPSON, CHIEF JUDGE: John W. Ault (Appellant) appeals from a
judgment of the Fayette Circuit Court arising from a conditional guilty plea to one
count each of sexual abuse in the first degree and incest.1 He argues that the circuit
court erred in denying his request to withdraw his guilty plea, and in its disposition
1 Kentucky Revised Statutes (KRS) 510.110 and KRS 530.020. of several rulings entered prior to and after the plea. After careful review, we find
no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On August 2, 2022, a Fayette County grand jury indicted Appellant on
four counts of sexual abuse in the first degree against victim “G.R.,” and one count
each of sexual abuse in the first degree, sodomy in the first degree, and incest
against victim “A.F.”2 G.R. is Appellant’s step-granddaughter, who was
approximately six years old in 2019 when the offenses began. She alleged that
they continued for three years. A.F. is Appellant’s biological daughter, who is now
approximately 39 years old. She alleged that the offenses committed against her
by Appellant occurred in the mid-1990s, when she was between seven and nine
years old. The explicit sexual nature of these offenses is detailed in the circuit
court record.
The matter proceeded in Fayette Circuit Court for approximately two
years, during which time Appellant moved to represent himself. The circuit court
granted the motion, and licensed counsel was retained to oversee Appellant’s self-
representation. Appellant filed several motions, including motions for a bill of
particulars, for discovery, for access to resources, to continue the trial, and to have
a victim evaluated.
2 We will use the victims’ initials as these charges involve sexual offenses against children.
-2- Shortly before trial, Appellant entered a conditional guilty plea to one
count of sexual abuse in the first degree and one count of incest, reserving the right
to appeal all pretrial motions. Per the plea offer, the Commonwealth
recommended a sentence of ten years in prison.
Shortly thereafter, Appellant moved to withdraw his guilty plea. In
support of the motion, Appellant argued that his hybrid counsel failed to advise
him regarding how long the appellate process would take and how the possible
death of witnesses could affect a trial. The circuit court denied the motion, and
sentenced Appellant to ten years in prison in accordance with the Commonwealth’s
recommendation. This appeal followed.3
ARGUMENTS AND ANALYSIS
Appellant first argues that the charges in the indictment involving
A.F. should have been severed from the charges involving G.R., and that the
Fayette Circuit Court erred in failing to so rule. Citing Peacher v. Commonwealth,
391 S.W.3d 821, 837 (Ky. 2013), Appellant argues that for separate offenses to be
tried together, there must be a sufficient nexus between them to justify a single
3 The Commonwealth questions Appellant’s preservation of the pretrial issues that he raises on appeal because he did not specify at the time of the guilty plea which issues he was reserving the right to appeal. The Commonwealth notes that Appellant entered a guilty plea conditioned on his “right to appeal all pretrial motions,” which number almost 100 filings. We have chosen to ignore the deficiency in preservation, if any, and proceed with the review. K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193, 196 (Ky. App. 2016).
-3- trial. He asserts that this nexus must be grounded on a logical relationship between
the offenses, a single transaction or occurrence, or a common scheme.
Appellant maintains that there is no sufficient connection between the
charges involving A.F. and G.R. to form a nexus between them sufficient to justify
a single trial. He notes that the allegations made by A.F. included digital
penetration, ejaculation, and professions of love. In contrast, G.R. alleged no
penetration or ejaculation, and Appellant told her she was a terrible person and
deserved the things he was doing to her. Appellant also points out that the
allegations made by A.F. centered on acts occurring between 1992 and 1994,
whereas those made by G.R. involved acts occurring between 2016 and 2019.
Based on the lack of a proper nexus required to justify a single trial, Appellant
argues that the circuit court erred in denying his motion to sever the charges.
Kentucky Rules of Criminal Procedure (RCr) 6.18 states that,
[t]wo (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
This rule exists in the interest of judicial economy and for the efficiency of
avoiding multiple trials. Garrett v. Commonwealth, 534 S.W.3d 217, 223 (Ky.
2017). In contrast, RCr 8.31 provides that,
-4- [i]f it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. A motion for such relief must be made before the jury is sworn or, if there is no jury, before any evidence is received. No reference to the motion shall be made during the trial. In ruling on a motion by a defendant for severance the court may order the attorney for the Commonwealth to deliver to the court for inspection in camera any statements or confessions made by the defendants that the Commonwealth intends to introduce in evidence at the trial.
A trial judge has broad discretion in ruling on a motion for separate
trials, and that determination will not be overturned on appeal unless an abuse of
discretion is shown. Elam v. Commonwealth, 500 S.W.3d 818, 822 (Ky. 2016). It
abuses its discretion if its decision was “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999). “A criminal defendant is not entitled to severance unless he
positively shows prior to trial that joinder would be unduly prejudicial.” Cohron v.
Commonwealth, 306 S.W.3d 489, 493 (Ky. 2010) (footnote and citation omitted).
Finally, “[t]rial judges are vested with great discretion in determining whether to
join or sever offenses, and this Court has consistently declined to disturb that
discretion absent a showing of clear abuse and actual prejudice.” Cherry v.
Commonwealth, 458 S.W.3d 787, 793 (Ky. 2015) (citations omitted).
-5- The question before us, then, is whether Appellant has shown that the
circuit court’s denial of its motion to sever the offenses constitutes a clear abuse of
discretion resulting in actual prejudice. Id. Here, the span of 12 years between the
acts of sexual abuse against A.F. and G.R. was a factor in support of Appellant’s
motion to sever. In contrast, Appellant was alleged to have sexually assaulted both
victims in about the same way, that is, by touching their genital areas and forcing
them to perform oral sex. Both victims were minors; both were allegedly assaulted
at Appellant’s residence during their cohabitation with Appellant; and, both were
familial victims – A.F. being Appellant’s daughter, and G.R. being his step-
granddaughter. Further, both victims were told by Appellant not to tell anyone
about the assaults, and in both instances the assaults allegedly occurred over a
period of between three to four years.
Based on the totality of the record, and in light of the court’s great
discretion in ruling on a motion to sever, we do not find the clear abuse and actual
prejudice required to reverse the circuit court’s ruling. We find no error on this
issue.
Appellant also points to Kentucky Rules of Evidence (KRE) 404(b) in
support of his claim that the risk of undue prejudice in combining the evidence
against A.F. and G.R. outweighs the probative value of that evidence. He weaves
into this argument his claim from above that the 12 years between the events
-6- increases the likelihood of undue prejudice resulting from the circuit court’s
alleged improper failure to sever the charges.
KRE 404(b) states that,
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]
Thus, evidence of Appellant’s other crimes, wrongs, or acts may be
admissible if offered as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. In Whaley v.
Commonwealth, 567 S.W.3d 576 (Ky. 2019), the Kentucky Supreme Court
determined that evidence relating to each of the defendant's four sexual abuse
victims was sufficiently similar to be admissible to show opportunity, intent, plan,
absence of mistake and modus operandi. In so doing, it found that all charges
involved an adult allegedly sexually assaulting a child who he had authority over;
the charged offenses occurred at defendant’s residence; and, the incidents involved
the same or similar acts with each victim.
In the matter before us, the charges involved allegations of
Appellant’s sexual abuse of minor females to whom he was related, with who he
-7- was residing, involving the same or similar acts with both victims. As in Whaley,
we believe the evidence herein was sufficiently similar to be admissible to show
opportunity, intent, plan, absence of mistake, and modus operandi per KRE
404(b)(1). We find no error.
Appellant goes on to argue that the Fayette Circuit Court erred in
denying his renewed motion for a bill of particulars. Below, Appellant alleged that
the indictment setting out charges related to G.R. contained no specifics with
respect to when or where or how the acts were allegedly to have occurred. Based
on this claim, he sought a bill of particulars in which the Commonwealth would
specify when and where the bad acts allegedly occurred.
The circuit court granted Appellant’s motion to compel the
Commonwealth to produce a bill of particulars. The Commonwealth responded
with a statement setting out the street address where the crimes allegedly occurred,
and stated that an interview conducted at the Children’s Advocacy Center (CAC)
provided information as to each charge.
Not satisfied with the Commonwealth’s response, Appellant
continued to file additional motions seeking more specific bills of particulars. The
Commonwealth again stated that Appellant should be prepared to defend charges
of sexual abuse in the first degree and sodomy in the first degree against victim
G.R. occurring between 2016-2019 at the residence previously indicated. The
-8- circuit court denied Appellant’s final request for an additional bill of particulars
upon ruling that Appellant was given adequate notice of the charges against him,
and the time frame and location of the alleged criminal acts. Appellant now argues
that the circuit court erred in failing to granted his renewed motion for a bill of
particulars.
RCr 6.22 states that, “[t]he court for cause shall direct the filing of a
bill of particulars. A motion for such bill may be made at any time prior to
arraignment, or thereafter in the discretion of the court. A bill of particulars may
be amended at any time subject to such conditions as justice requires.” The
purpose of a bill of particulars is to provide to the defendant information
reasonably necessary to help him understand the charges against him and prepare a
defense without prejudicial surprise at trial. Wolbrecht v. Commonwealth, 955
S.W.2d 533, 538 (Ky. 1997). The trial court is vested with sound discretion in
determining whether to grant a request for a bill of particulars after the indictment.
Deskins v. Commonwealth, 512 S.W.2d 520, 524 (Ky. 1974). The trial court’s
decision will not be overturned on appeal absent an abuse of discretion. Id.
Here, the Commonwealth informed Appellant of the charges against
him; the names of the alleged victims; the precise location where the crimes were
alleged to have occurred; and, the time frames as to each victim during which the
bad acts were alleged to have occurred. This information provided Appellant with
-9- the information reasonably necessary to help him understand the charges against
him and to prepare a defense without prejudicial surprise at trial. This complies
with RCr 6.22 and the supportive case law; therefore, we find no error.
Appellant next argues that the Fayette Circuit Court erred in failing to
dismiss the indictment. He argues that four false and misleading statements were
made to the grand jury which improperly resulted in the grand jury returning
charges against him. He claims that Detective Hogan gave knowingly false and
misleading information when he told the grand jury that the police allowed the
CAC to handle G.R.’s interview, and implied that the police had not already
interviewed G.R. Appellant also argues that Detective Hogan improperly implied
to the grand jury that Appellant was incarcerated in Georgia on a sexual offense,
when in reality it was non-sexual abuse charges. Third, Appellant contends that
Detective Hogan improperly suggested that Appellant had previously committed
other, similar bad acts. And last, Appellant argues that the prosecutor ended the
grand jury testimony by saying that Appellant had previously been convicted of
certain charges, when the truth was that all but one of those charges occurred after
the charges at issue. In sum, Appellant argues that but for these false or misleading
statements, “the grand jury might not have indicted Mr. Ault, or at least they would
have indicted him for fewer charges.” On this basis, Appellant argues that the
circuit court committed reversible error in failing to dismissing the indictment.
-10- “We review a circuit court’s decision to dismiss an indictment for an
abuse of discretion.” Commonwealth v. Grider, 390 S.W.3d 803, 817 (Ky. App.
2012) (citation omitted). There is a strong presumption of regularity that attaches
to grand jury proceedings. Haney v. Commonwealth, 653 S.W.3d 559, 569 (Ky.
2022). And as noted by the Commonwealth, “subject to rare exceptions usually
related to a defendant’s claim of a denial of the right to a speedy trial, the trial
judge has no authority, absent consent of the Commonwealth’s attorney, to
dismiss, amend, or file away before trial a prosecution based on a good
indictment.” Grider, 390 S.W.3d at 817-18 (emphasis in original) (internal
quotation marks and citation omitted).
“The grand jury proceeding is not a trial. . . . The grand jury is merely
required to find an indictment where they have received what they believe to be
sufficient competent evidence to support it.” Rice v. Commonwealth, 387 S.W.2d
4, 5 (Ky. 1965) (citation omitted). Here, sufficient competent evidence supported
the indictment. When viewed in light of the strong presumption of regularity that
attaches to such proceedings, and the failure of Appellant to demonstrate one of the
rare exceptions supporting dismissal of the indictment, we find no error in the
Fayette Circuit Court’s denial of Appellant’s motion to dismiss the indictment.
Appellant next argues that the circuit court abused its discretion when
it granted the Commonwealth’s motion under KRS 404(b) to introduce evidence
-11- relating to what Appellant refers to as the “Lincoln County incident.” Below, in its
KRE 404(c) notice4 the Commonwealth sought to introduce evidence of three
specific prior bad acts committed by Appellant. The circuit court granted the
motion only as to one prior bad act, in which Appellant was text messaging a
minor in 2019. In those messages, Appellant made explicit statements about the
sexual acts he wanted the minor to perform when they met. The minor’s father
became aware of the texts and notified the Kentucky State Police (KSP). KSP
personnel took over the minor’s role in the text conversations.
On May 29, 2019, Appellant travelled to Lincoln County, Kentucky,
to meet who he thought was the minor. He was arrested by the KSP and ultimately
pleaded guilty to prohibited use of electronic communication system to procure
minor/peace officer for sex,5 and possession of matter portraying a sexual
performance by a minor.6
As addressed above, evidence of “other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” KRE 404(b). It may be admissible, however, if “offered for some
other purpose, such as proof of motive, opportunity, intent, preparation, plan,
4 KRE 404(c) requires the Commonwealth to give notice if it intends to introduce evidence pursuant to subdivision (b). 5 KRS 510.155. 6 KRS 531.335.
-12- knowledge, identity, or absence of mistake or accident” or “[i]f so inextricably
intertwined with other evidence essential to the case that separation of the two (2)
could not be accomplished without serious adverse effect on the offering party.”
KRE 404(b)(1) and (2).
Both parties direct our attention to the three-part test of admissibility
of evidence of other crimes, wrongs or acts set out in Bell v. Commonwealth, 875
S.W.2d 882 (Ky. 1994). In Bell, the Kentucky Supreme Court held that in order
for evidence of other crimes, wrongs or acts to be admissible, (1) the evidence
must be relevant; (2) it must be probative; and (3) the probative value cannot be
substantially outweighed by its prejudicial effect. Bell, 875 S.W.2d at 889-91.
Evidence is relevant if it tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” KRE 401. And finally, “[t]he standard of
review of an evidentiary ruling is abuse of discretion.” Anderson v.
Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (footnote and citation omitted).
As our review of this issue centers on whether the Fayette Circuit
Court abused its discretion in granting the Commonwealth’s motion to introduce
evidence arising from the Lincoln County incident, the dispositive question is
whether the decision was “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” English, 993 S.W.2d at 945. We conclude that it was not.
-13- Evidence of the Lincoln County incident was both relevant and probative per Bell,
as it was offered to rebut Appellant’s claim that G.R. was lying, and that Appellant
would never engage in the acts of which she accused him. Appellant’s text
messages to the Lincoln County minor occurred in 2019, around the same time of
the acts involving G.R. In addition, the sex acts described in graphic detail in the
text messages to the Lincoln County minor parallel the acts G.R. alleged Appellant
committed. Further, we do not conclude that the probative value of the Lincoln
County evidence was substantially outweighed by its prejudicial effect. Bell, 875
S.W.2d at 889-91. In sum, the Fayette Circuit Court’s decision to grant the
Commonwealth’s motion was not arbitrary, unreasonable, unfair, nor unsupported
by sound legal principles. English, 993 S.W.2d at 945. We find no error.
Appellant’s final argument is that the Fayette Circuit Court committed
reversible error in denying his motion to withdraw his guilty plea. Below,
Appellant entered a conditional guilty plea to sexual abuse in the first degree
(victim G.R., under 12 years of age) and incest (victim A.F., under 12 years of
age), with a recommended sentence of 10 years in prison. Appellant represented
himself pro se with hybrid counsel. One week later, and prior to sentencing,
Appellant filed a motion to withdraw his conditional guilty plea.
In support of his motion, Appellant alleged that he was not adequately
informed of the disadvantages to pleading guilty, which included the loss of a
-14- lengthy delay for a new trial if an appellate court ordered such a trial. The focus of
his argument is that he would have chosen to take the matter to trial had he been
informed of the possibility of a lengthy delay in the appellate process.
RCr 8.10 states that, “[a]t any time before judgment the court may
permit the plea of guilty . . . to be withdrawn and a plea of not guilty substituted.”
A trial court has discretion in granting or denying a motion to withdraw a
voluntary guilty plea. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App.
2004). We will not disturb that decision absent an abuse of discretion. Id.
Here, Appellant’s guilty plea was knowingly, intelligently, and
voluntarily entered. Appellant served as his own counsel, and engaged in the
majority of the motion practice and hearings with the supervision of hybrid
counsel. Having chosen to represent himself, Appellant cannot reasonably argue
that hybrid counsel improperly failed to inform him of the benefit of extended
appellate process delays. Further, the purported benefit of an extended appellate
process, if any, is wholly hypothetical, as it is premised on Appellant 1) having
pleaded not guilty; 2) gone to trial resulting in a guilty verdict; and, 3) prosecuting
an appeal which resulted in a reversal and remand for a new trial. The Fayette
Circuit Court’s denial of Appellant’s motion to withdraw his guilty plea was not
arbitrary, unreasonable, unfair, nor unsupported by sound legal principles. As
such, it did not constitute an abuse of discretion and we find no error.
-15- CONCLUSION
For the foregoing reasons, we affirm the judgment of the Fayette
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Russell Coleman Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-16-