IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 27, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0495-MR
JOSHUA TURNER APPELLANT
V. ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN LAPE, JUDGE NO. 20-CR-01275
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case comes before the Court on appeal as a matter of right1 by
Joshua Turner, the Appellant, from the judgment and sentence of the Kenton
Circuit Court. Turner was convicted by a jury of first-degree rape (victim under
twelve); two counts of first-degree sodomy (victim under twelve); and three
counts of incest. He was sentenced to life in prison. He now appeals for two
alleged errors. First, the trial court failed to give lesser-included offense
instructions for sexual abuse in the first degree under the two greater offenses
of first-degree sodomy. Second, that the prosecutor committed misconduct in
his closing argument. For the following reasons, we affirm.
1 Ky. Const. § 110(2)(b). I. Facts Rachel Irwin was the longtime girlfriend of Turner, and the couple had
two children together, one of whom is A.T.,2 one of Turner’s victims. Turner
had another daughter, B.H., by another woman and who did not live with the
family but visited regularly. She was his second victim. B.H. was eleven years
old at the time of the abuse and A.T. was eight years old. In September of 2020,
Turner began to sell the belongings of his two children by Irwin. Irwin wanted
to see if she could identify the buyers and get those possessions back, so she
took an opportunity to look through Turner’s phone while he was asleep. It was
then she discovered videos on the phone that showed Turner engaging in
sexual acts with A.T. and B.H. Turner was identifiable due to distinguishing
tattoos on his hands. A.T. and B.H. were identifiable due to underwear Irwin
knew to be theirs from doing the laundry. A.T. was also identifiable due to her
bedsheets.
Irwin took the phone to the Park Hills Police Department. A search
warrant was executed on Turner’s home and the underwear and bedsheets in
the videos were gathered into evidence. Detective Nick Klaiss was assigned to
the case and testified to finding photographs and videos on Turner’s phone
depicting his abuse. One video of A.T. depicts Turner thrusting his penis in
between her buttocks. Another video of B.H. depicts the same conduct. Again,
the underwear the girls were wearing are what made the victims identifiable,
2 We use initials to protect the identity of the victims. 2 and Turner’s tattoos made him identifiable. These two videos predicated the
counts of first-degree sodomy.
After the close of evidence, Turner submitted three lesser-included
instructions of first-degree sexual abuse: two for the counts of sodomy and one
for the count of rape. The Commonwealth conceded the lesser-included
instruction was justified for the count of rape, but it opposed the instructions
for the counts of sodomy. Turner first argued that the videos did not show
penetration, which his counsel believed was a necessary element. Informed
penetration was not a necessary element of sodomy, trial counsel then argued
for the lesser-included instructions on the basis of the presence, or lack
thereof, of sexual gratification, arguing it was an issue for the jury. The
Commonwealth argued that the lesser-included instructions were not merited
by the evidence and the trial court agreed. The trial court concluded, “The
videos speak to themselves. To the sodomies, there’s no facts that support the
lesser-included [offenses].”
Finally, Turner alleges during closing arguments for the penalty phase of
the trial the Commonwealth stated to the jury, “It’s no secret that victims of
sexual abuse look forward to a life of mental health issues, substance abuse
[and] depression.” Turner concedes he did not object to this statement at trial
therefore it is unpreserved. He now argues, however, that neither victims
testified to their mental state nor did an expert testify as to mental issues
involving sexual abuse victims; thus, the statement had no evidentiary basis
3 nor was it a reasonable inference from the evidence and therefore palpable
error.
II. Analysis
A. Lesser-included Instructions not Justified “An instruction on a lesser included offense is required only if,
considering the totality of the evidence, the jury might have a reasonable doubt
as to the defendant's guilt of the greater offense, and yet believe beyond a
reasonable doubt that he is guilty of the lesser offense.” Mash v.
Commonwealth, 376 S.W.3d 548, 559 (Ky. 2012) (quoting Miller v.
Commonwealth, 283 S.W.3d 690, 699 (Ky. 2009)). We review for an abuse of
discretion in the failing to give a requested jury instruction. Thus, we will not
disturb the ruling unless it is arbitrary, unfair, or not based on sound legal
principles. In the civil context—though equally applicable in the criminal law as
well—we have admonished that
Appellate courts must be careful to avoid the sort of unfettered review of the record and of the trial court's rulings that indicates a de novo review. And appellate courts must recognize the unfortunate but necessary corollaries of deference to the trial court: that it is possible for a trial court to rule contrary to what an appellate court would rule without abusing its discretion or being clearly erroneous, and that an appellate court is powerless to disturb such rulings.
Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004).
In Mash, we had occasion to discuss the difference between sodomy and
first-degree sexual abuse, stating
Pursuant to KRS 510.110(1), “[a] person is guilty of sexual abuse in the first degree when . . . [h]e or she subjects another person to
4 sexual contact by forcible compulsion . . . .” KRS 510.110(1). Sexual contact is statutorily defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party.” KRS 510.010(7).
…
First-degree sexual abuse is properly classified as a lesser included offense of first-degree sodomy. Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky.1993). The distinction between the two offenses is the body part touched for purposes of sexual gratification. Sexual abuse requires “sexual contact,” KRS 510.110, which means “touching of the sexual or other intimate parts of a person,” KRS 510.010(7). Sodomy, on the other hand, requires “deviate sexual intercourse,” KRS 510.070, which means “any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another,” KRS 510.010(1). The additional element in a sodomy offense is the specific sexual or intimate parts involved, namely, the mouth or anus.
376 S.W.3d at 559. Turner ostensibly argues the trial court abused its
discretion when it refused to give the lesser-included offense instructions of
sexual abuse in the first degree for the two counts of sodomy because the jury
could view the video evidence predicating those charges and conclude that
while his penis touched the buttocks of the victims, it did not touch their
anuses. Turner’s argument, however, is disingenuous. Elsewhere in his brief he
states plainly, “It [the videos] does not show Mr. Turner’s penis touching AT’s
anus, or deviate sexual intercourse under KRS 510.070. Commonwealth’s
Exhibit 58 shows Mr. Turner’s penis touching BH’s buttocks, which are ‘other
intimate parts,’ not her anus.” In other words, Turner’s argument establishes
an all-or-nothing proposition—the videos either demonstrate sodomy, or they
do not.
5 Generally, “[w]e permit a trial court to not instruct on lesser-included
offenses only where the evidence presents an all-or-nothing proposition,
allowing only a single account of the degree of the offense or demanding an
acquittal.” Swan v. Commonwealth, 384 S.W.3d 77, 100 (Ky. 2012). See also
Gordon v. Commonwealth, 214 S.W.3d 921, 924 (Ky. App. 2006). In this
instance, by Turner’s own reasoning, either the video evidence establishes
sodomy by showing penile contact with the anuses of his victims or it
establishes no sodomy by showing no penile contact with the anuses of his
victims. Because this is an essential element of sodomy, Mash, 376 S.W.3d at
559, Turner’s argument is an all-or-nothing proposition—he is either guilty of
sodomy or the Commonwealth has failed to establish a necessary element
beyond reasonable doubt. Moreover, having reviewed the opening and closing
arguments of Turner’s defense, he at no point conceded to mere sexual contact
with his victims as opposed to sodomy. After making a motion for directed
verdict at the close of the Commonwealth’s evidence, he once again did not
concede to mere sexual contact with his victims as opposed to sodomy. Finally,
Turner did not testify in his own defense, nor did he call any witnesses or put
on any evidence whatsoever. Therefore, the trial court acted properly in
refusing to give a jury instruction on the lesser-included offenses of first-degree
sexual abuse.
Secondly, we note that that we will not consider arguments raised for the
first time on appeal. Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky.
2013). This rule does not merely apply to the general issue at stake, but to the
6 specific arguments raised for or against that issue. Id. “Error is not preserved if
the wrong reason is stated for the objection.” Young v. Commonwealth, 50
S.W.3d 148, 168 (Ky. 2001). And when a new reason in support of an
argument appears for the first time on appeal, the “Appellant is precluded from
raising that question . . . because it was not raised or relied upon in the court
below.” Combs v. Knott County Fiscal Court, 141 S.W.2d 859, 860 (Ky. 1940).
Turner never argued at trial that the videos in question did not
demonstrate the crime of sodomy by failing to show penile contact with the
anus. In his argument for the lesser-included instructions of sexual abuse in
the first degree, trial counsel first mistakenly argued that sodomy required
penetration, which it does not. Bills v. Commonwealth, 851 S.W.2d 466, 469
(Ky. 1993). The trial court properly rejected that argument. Counsel’s next
argument was that there must be some difference between sodomy and sexual
abuse, or, in the language of the statutes, between deviate sexual intercourse
and sexual contact. Turner’s counsel then stated that difference was the
presence or lack thereof of sexual gratification. The trial court was
unpersuaded by this argument. As we stated in Mash, “[t]he distinction
between the two offenses” is not the presence of sexual gratification per se but
“is the body part touched for purposes of sexual gratification.” 376 S.W.3d at
559. The trial court properly rejected the second argument as well. Therefore,
the trial court’s refusal to give the lesser-included offense instructions for
sexual abuse in the first degree is affirmed.
7 B. Commonwealth did not Commit Flagrant Misconduct in Penalty- phase Closing Argument Next, Turner argues the Commonwealth committed prosecutorial
misconduct in its closing argument for the penalty phase, wherein counsel
made a statement that “It’s no secret victims of sexual abuse look forward to
nothing but a life of mental health issues, substance abuse, [and] depression.”
This statement was not objected to and will only be reviewed for palpable error,
as requested and briefed by Turner. RCr3 10.26. “A palpable error must be so
grave in nature that if it were uncorrected, it would seriously affect the fairness
of the proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
In Hannah v. Commonwealth, we set down the test whereby appellate courts
must first determine whether the Commonwealth’s statements or actions were
misconduct, and if so, then assess whether the misconduct was flagrant. 306
S.W.3d 509, 518 (Ky. 2010), superseded on other grounds by statute, KRS
503.055 and KRS 503.050(4), as recognized in Commonwealth v. Hasch, 421
S.W.3d 349 (Ky. 2013). To determine whether misconduct is flagrant, we look
to 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.” Id. (quoting United States v.
Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994)).
3 Kentucky Rules of Criminal Procedure. 8 In closing arguments, lawyers may make those arguments which are
either directly supported by the evidentiary record, or reasonably deducible
from the record. They may not make arguments which have no evidentiary
foundation or are not reasonably deducible therefrom. Newcomb v.
Commonwealth, 410 S.W.3d 63, 89 (Ky. 2013). Neither of the victims in this
case testified and there was no medical testimony about their mental health,
nor expert testimony regarding the trauma sexual abuse victims can typically
expect to undergo throughout their lives. The statement of the prosecutor had
no evidentiary foundation. Child abuse cases are already highly emotional
affairs as it is, and references to the distraught lives victims potentially have in
store, without evidentiary basis, can only exacerbate the piteousness natural to
such cases. For that reason, we hold the statement was misconduct.
Having made that determination, we must proceed to the Hannah
factors. As to the third factor, the statement was clearly deliberate and there’s
no argument it was not. As to the second factor, the comment was neither
isolated nor extensive. The theme of the Commonwealth’s closing was for the
jury to do what was fair and just, and this focused on the impact of Turner’s
crimes upon his children. The Commonwealth argued that Turner had not just
physically harmed the girls but had “robbed” them of the father they should
have had; robbed them of their virginity and negatively affecting their future
love life; and then the Commonwealth mentioned the mental health and
substance abuse issues but did not dwell on them. These two factors weigh in
favor of Turner.
9 As to the first factor, however, although without evidentiary foundation
in this record, generally speaking it is well-known that sexual abuse victims
tend to suffer a mental trauma as well as a physical trauma, and some struggle
to overcome it. It is not uncommon they do so by turning to substance abuse.
It is going too far to characterize the statement as misleading, with the
connotations of maliciousness implied by that word.4 Instead, it was
pretentious and did presume facts not in evidence, but that does not always
equate to misleading. Despite this, the prejudicial impact of the statement is
dubious. We emphasize that this statement was made in the penalty phase of
the trial and not the guilt phase; guilt had already been determined. The jury
had seen the evidence and the statement by itself could not have inflamed the
jury with undue passion any more than what the evidence itself elicited.
This leads us to the fourth factor—the evidence of Turner’s guilt is
overwhelming. Dozens of videos and photographs were submitted into evidence
and Turner was readily identifiable as the perpetrator by his tattoos. The trial
judge expressed her own opinion when imposing the sentence, that the
evidence was among the most disturbing she had ever seen. The third factor is,
at worst, neutral to both Turner and the Commonwealth, but the fourth factor
undoubtedly weighs in favor of the Commonwealth. As we said in Brewer, the
essential question for palpable review is whether “the result in the case would
have been different without the error.” 206 S.W.3d at 349. And the Hannah
4Johnson defines mislead as “to guide a wrong way; to betray to mischief or mistake.” Samuel Johnson, A Dictionary of the English Language 469 (Barnes & Noble Books 1994) (1756). 10 factors are to be balanced with one another—it is not a rote checklist. Because
of the overwhelming evidence of guilt and its nature, we are confident that the
sentence imposed by the jury would have been the same even without the
Commonwealth’s statement therefore, there is no palpable error.
III. Conclusion Turner’s argument that lesser-included offense instructions for sexual
abuse were justified because the video evidence underlying the sodomy charges
did not show penile contact with the anuses of the victims establishes an all-
or-nothing proposition, so the trial court correctly declined to give lesser-
included offense instructions for sexual abuse in the first degree. Moreover, the
specific argument advanced before this Court was not presented to the trial
court thus, it was not properly preserved for review. The statement of the
Commonwealth during closing arguments in the penalty phase was misconduct
because not based in the evidentiary record. But the statement itself was not
flagrant misconduct and it did not result in a palpable error. The judgment and
sentence of the Kenton Circuit Court is affirmed.
All sitting. Conley, Keller, Lambert, Nickell, and Thompson, JJ., concur.
Bisig, J., concurs in result only by separate opinion in which VanMeter, C.J.,
joins.
BISIG, J., CONCURRING IN RESULT ONLY: I concur in result only.
Although I agree with the majority that Turner’s conviction should be affirmed,
I disagree with the conclusion that the prosecutor committed misconduct in
closing argument during the penalty phase. While the majority ultimately
11 determines that the statement did not constitute palpable error, I do not
believe the statement was improper.
In reviewing a claim of prosecutorial misconduct during closing
argument, we must remember that “counsel is granted wide latitude during
closing argument[,]” and that “‘[i]t is just that—an argument.’” Murphy v.
Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017) (quotation and citations
omitted). The majority notes that the prosecutor’s statement had no
evidentiary foundation, but prosecutors are permitted to “draw all reasonable
inferences from the evidence.” Tamme v. Commonwealth, 973 S.W.2d 13, 39
(Ky. 1998). The majority opinion further states that “generally speaking it is
well-known that sexual abuse victims tend to suffer a mental trauma as well as
a physical trauma, and some struggle to overcome it. It is not uncommon they
do so by turning to substance abuse.” These sensible considerations that can
reasonably be inferred from the evidence lead me to conclude that the
prosecutor’s reference to mental health issues as a plausible impact of this
crime was not improper.
I further emphasize that the prosecutor’s comment occurred during
closing argument of the penalty phase, which directly followed a two-day trial
in which the jury was presented with an abundance of unequivocal evidence
and ultimately found Turner guilty. Therefore, it was not unreasonable for the
prosecutor to argue that the victims could suffer from the effects of this abuse
for the rest of their lives.
VanMeter, C.J., joins.
12 COUNSEL FOR APPELLANT:
Julia K. Pearson Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General