IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 14, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0359-MR
MICHAEL DODSON APPELLANT
ON APPEAL FROM GRAYSON CIRCUIT COURT V. HONORABLE KENNETH GOFF, JUDGE NO. 23-CR-00060
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is before the Court as a matter of right from the Appellant’s,
Michael Dodson, convictions for rape in the first degree (victim under twelve),
sodomy in the first degree (victim under twelve), and sexual abuse in the first
degree (victim under twelve). He was sentenced to life in prison. On appeal, he
argues the jury instructions violated the unanimity requirement and double
jeopardy. He also argues hearsay statements contained in the authenticated
medical records submitted at trial were improperly admitted. Because we
conclude these arguments were either waived or harmless, we will not go into
significant detail on the underlying facts as they are largely irrelevant to our
disposition. For the following reasons, Dodson’s convictions are affirmed. Dodson lived with the victim, J.T., 1 for approximately six months to one
year beginning when she was four years old and into her fifth year of life. He is
her half-uncle. J.T. testified at trial that Dodson would abuse her in his
bedroom by putting his tongue on and inside her vagina. She testified to seeing
images of pornography on his phone depicting the same act. After reporting the
abuse to her cousin and older sister, J.T.’s mother was informed, and Dodson
was told to leave the home. J.T. was taken to the local Children’s Advocacy
Center and interviewed. Her forensic interview, played at trial at Dodson’s
behest, repeated the same allegations as well as an allegation that Dodson
used his hands on and inside her vagina.
Dodson testified in his own defense. He recounted a sexually precocious
young girl who would crawl on him while he was in bed and would grab ahold
of his crotch in order to pull herself up onto him. She would then place her
butt in his face which he would then have to touch in order to remove her. He
also asserted J.T. would sit on his lap and wiggle inappropriately upon him;
this, too, prompting him to remove J.T. Finally, he testified J.T. accessed
pornography on his phone (despite being five years old and illiterate at the
time) and he took the phone from her when he noticed it. Despite claiming J.T.
was acting sexually inappropriate for her age, he never told her grandmother
(her legal custodian) about his alleged misgivings.
1 We use initials to protect the identity of the victim. J.T. was seven years old at
the time of trial. 2 After forty-five minutes of deliberation, the jury sentenced Dodson to life
in prison plus thirty-five years consecutive. The trial court properly reduced the
sentence to life in prison. Dodson now argues the instructions below violated
the unanimity requirement and double jeopardy. To quote his brief,
although there were a sufficient number of different acts to support three different criminal charges, the instructions to the jury provided no way to differentiate between the three charges. All three charges could have been satisfied by a single act of Mr. Dodson’s mouth penetrating J.T.’s private parts. There can be no confidence that the jury did not find guilt on all three charges for that single act. Similarly, regarding double jeopardy, Dodson argues [t]he jury, as instructed, could not have known whether the rape, sodomy, and sexual abuse instructions pertained to their own unique alleged facts and which act was supposed to match each instruction, or whether they were permitted to find Mr. Dodson guilty of all three crimes for the same conduct. Despite these arguments, Dodson concedes the issue is unpreserved and
requests palpable error review. The Commonwealth responds the issue is in
fact waived. When asked by the trial court whether he agreed with the
proposed jury instructions, Dodson’s counsel stated, “[r]egarding the
instructions themselves I think, generally speaking, the defense is okay with
these instructions, Judge.” The only issue counsel raised was the numbering of
the instructions as a typographical error.
Finally, during trial, the medical records of J.T. regarding her abuse and
visit to the hospital were properly authenticated and certified. Dodson made no
objection to this. He did, however, object to certain statements within the
medical records both of which, generally, identify Dodson as her abuser and
3 how the abuse was perpetrated. The wording of the records also makes it
ambiguous who exactly was reporting the details: J.T., her sister, or her
mother. Dodson, therefore, argues that there is hearsay-within-hearsay (and
perhaps hearsay-within-hearsay-within-hearsay). The Commonwealth argues
the facts of how the abuse occurred fall within the hearsay exception for
statements made for medical treatment under KRE 2 803(4). It also rejects the
contention that there are multiple layers of hearsay in the statements. It
concedes the identification of Dodson as the abuser was erroneous, but
harmless as J.T. testified at trial, identifying Dodson as her abuser and
affirming the same facts of abuse as recounted in the medical records. In other
words, to the extent the medical records could be considered hearsay, they are
merely cumulative and harmless.
We agree with the Commonwealth on all issues. As to the arguments
regarding unanimity and double jeopardy, we conclude these errors were
invited because defense counsel told the trial court “the defense is okay with
these instructions, Judge.” In Sanchez v. Commonwealth, we held the
appellant, “[b]y expressly agreeing to the jury instructions, apart from the
absence of a missing evidence instruction . . . waived his ability to now
challenge those instructions on appeal.” 680 S.W.3d 911, 930 (Ky. 2023). In
Boggs v. Commonwealth, we reached a similar conclusion when the trial court
asked the parties if they had any objections to the proposed jury instructions
2 Kentucky Rules of Evidence.
4 and defense counsel responded in the negative. --- S.W.3d --- (Ky. 2025), 2025
WL 1717814, at *4 (Ky. June 20, 2025) (finality achieved on 07/11/2025). 3
Similarly, in Boggs, we held “double jeopardy claims are subject to an
invited error analysis.” Id. We explained that double jeopardy arguments have
previously been held to be subject to waiver. Id. (citing Couch v. Maricle, 998
S.W.2d 469, 470-71 (Ky. 1999)). We then expressed our agreement with the
First Circuit Court of Appeals, that “[t]he protection embodied in the Double
Jeopardy Clause is a personal defense that may be waived or foreclosed by a
Free access — add to your briefcase to read the full text and ask questions with AI
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: AUGUST 14, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0359-MR
MICHAEL DODSON APPELLANT
ON APPEAL FROM GRAYSON CIRCUIT COURT V. HONORABLE KENNETH GOFF, JUDGE NO. 23-CR-00060
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is before the Court as a matter of right from the Appellant’s,
Michael Dodson, convictions for rape in the first degree (victim under twelve),
sodomy in the first degree (victim under twelve), and sexual abuse in the first
degree (victim under twelve). He was sentenced to life in prison. On appeal, he
argues the jury instructions violated the unanimity requirement and double
jeopardy. He also argues hearsay statements contained in the authenticated
medical records submitted at trial were improperly admitted. Because we
conclude these arguments were either waived or harmless, we will not go into
significant detail on the underlying facts as they are largely irrelevant to our
disposition. For the following reasons, Dodson’s convictions are affirmed. Dodson lived with the victim, J.T., 1 for approximately six months to one
year beginning when she was four years old and into her fifth year of life. He is
her half-uncle. J.T. testified at trial that Dodson would abuse her in his
bedroom by putting his tongue on and inside her vagina. She testified to seeing
images of pornography on his phone depicting the same act. After reporting the
abuse to her cousin and older sister, J.T.’s mother was informed, and Dodson
was told to leave the home. J.T. was taken to the local Children’s Advocacy
Center and interviewed. Her forensic interview, played at trial at Dodson’s
behest, repeated the same allegations as well as an allegation that Dodson
used his hands on and inside her vagina.
Dodson testified in his own defense. He recounted a sexually precocious
young girl who would crawl on him while he was in bed and would grab ahold
of his crotch in order to pull herself up onto him. She would then place her
butt in his face which he would then have to touch in order to remove her. He
also asserted J.T. would sit on his lap and wiggle inappropriately upon him;
this, too, prompting him to remove J.T. Finally, he testified J.T. accessed
pornography on his phone (despite being five years old and illiterate at the
time) and he took the phone from her when he noticed it. Despite claiming J.T.
was acting sexually inappropriate for her age, he never told her grandmother
(her legal custodian) about his alleged misgivings.
1 We use initials to protect the identity of the victim. J.T. was seven years old at
the time of trial. 2 After forty-five minutes of deliberation, the jury sentenced Dodson to life
in prison plus thirty-five years consecutive. The trial court properly reduced the
sentence to life in prison. Dodson now argues the instructions below violated
the unanimity requirement and double jeopardy. To quote his brief,
although there were a sufficient number of different acts to support three different criminal charges, the instructions to the jury provided no way to differentiate between the three charges. All three charges could have been satisfied by a single act of Mr. Dodson’s mouth penetrating J.T.’s private parts. There can be no confidence that the jury did not find guilt on all three charges for that single act. Similarly, regarding double jeopardy, Dodson argues [t]he jury, as instructed, could not have known whether the rape, sodomy, and sexual abuse instructions pertained to their own unique alleged facts and which act was supposed to match each instruction, or whether they were permitted to find Mr. Dodson guilty of all three crimes for the same conduct. Despite these arguments, Dodson concedes the issue is unpreserved and
requests palpable error review. The Commonwealth responds the issue is in
fact waived. When asked by the trial court whether he agreed with the
proposed jury instructions, Dodson’s counsel stated, “[r]egarding the
instructions themselves I think, generally speaking, the defense is okay with
these instructions, Judge.” The only issue counsel raised was the numbering of
the instructions as a typographical error.
Finally, during trial, the medical records of J.T. regarding her abuse and
visit to the hospital were properly authenticated and certified. Dodson made no
objection to this. He did, however, object to certain statements within the
medical records both of which, generally, identify Dodson as her abuser and
3 how the abuse was perpetrated. The wording of the records also makes it
ambiguous who exactly was reporting the details: J.T., her sister, or her
mother. Dodson, therefore, argues that there is hearsay-within-hearsay (and
perhaps hearsay-within-hearsay-within-hearsay). The Commonwealth argues
the facts of how the abuse occurred fall within the hearsay exception for
statements made for medical treatment under KRE 2 803(4). It also rejects the
contention that there are multiple layers of hearsay in the statements. It
concedes the identification of Dodson as the abuser was erroneous, but
harmless as J.T. testified at trial, identifying Dodson as her abuser and
affirming the same facts of abuse as recounted in the medical records. In other
words, to the extent the medical records could be considered hearsay, they are
merely cumulative and harmless.
We agree with the Commonwealth on all issues. As to the arguments
regarding unanimity and double jeopardy, we conclude these errors were
invited because defense counsel told the trial court “the defense is okay with
these instructions, Judge.” In Sanchez v. Commonwealth, we held the
appellant, “[b]y expressly agreeing to the jury instructions, apart from the
absence of a missing evidence instruction . . . waived his ability to now
challenge those instructions on appeal.” 680 S.W.3d 911, 930 (Ky. 2023). In
Boggs v. Commonwealth, we reached a similar conclusion when the trial court
asked the parties if they had any objections to the proposed jury instructions
2 Kentucky Rules of Evidence.
4 and defense counsel responded in the negative. --- S.W.3d --- (Ky. 2025), 2025
WL 1717814, at *4 (Ky. June 20, 2025) (finality achieved on 07/11/2025). 3
Similarly, in Boggs, we held “double jeopardy claims are subject to an
invited error analysis.” Id. We explained that double jeopardy arguments have
previously been held to be subject to waiver. Id. (citing Couch v. Maricle, 998
S.W.2d 469, 470-71 (Ky. 1999)). We then expressed our agreement with the
First Circuit Court of Appeals, that “[t]he protection embodied in the Double
Jeopardy Clause is a personal defense that may be waived or foreclosed by a
defendant's voluntary actions[.]” Id. (citing United States v. Newton, 327 F.3d
17, 21 (1st Cir. 2003)). Accordingly, Dodson has waived his unanimity and
double jeopardy arguments by expressly agreeing to the instructions at trial. 4
As to the medical hearsay argument, we generally agree with the
Commonwealth that the statements describing the abuse were subject to KRE
3 The Opinion of the Court in Boggs is a plurality opinion. Two justices
concurred in part and dissented in part. Two justices concurred in result only. None of the four, however, took issue with the conclusion regarding the waiver of Boggs’ unanimity and double jeopardy arguments. Therefore, the opinion is a controlling 5-2 decision so far as these issues are concerned. 4 Our law does hold that failure to object does not constitute waiver of a double
jeopardy claim. Kiper v. Commonwealth, 399 S.W.3d 736, 740 (Ky. 2012). The difference here, as in Sanchez and Boggs, is the affirmation that there is no objection, i.e., an affirmative expression of agreement. That is the difference between an unpreserved error and invited error. Even the Supreme Court of the United States has acknowledged double jeopardy claims can be waived. Jeffers v. United States, 432 U.S. 137, 152 (1977); Menna v. New York, 423 U.S. 61, 62 n.2 (1975). Finally, Kentucky is not the only state to hold double jeopardy claims are barred by the invited error doctrine. See e.g., Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000); Bradley v. State, 925 So.2d 232, 241 (Al. 2005); People v. Echevarria, 843 N.E.2d 149 (N.Y. App. 2005); Flowers v. State, 149 So. 3d 1206, 1209 (Fla. Dist. Ct. App. 2014); State v. Quinn, 414 P.3d 753 (Kan. Ct. App. 2018); State v. Hugayes, 867 S.E.2d 262 (N.C. App. 2022); Bush v. State, 208 N.E.3d 605, 611 (Ind. App. 2023).
5 803(4). Hoff v. Commonwealth, 394 S W 3d 368, 374 (Ky. 2011). We also agree
the identity of the perpetrator in those statements should have been redacted.
Colvard v. Commonwealth, 309 S.W.3d 239, 246 (Ky. 2010). Rather than parse
the verbiage of the statements to determine whether they constitute multiple
layers of hearsay, we will, for the sake of argument, assume error and proceed
to a harmless error analysis. See, e.g., Johnson v. Commonwealth, 694 S.W.3d
232, 251 (Ky. 2023) (“We assume without deciding that Johnson is correct that
the statements do not fall within a hearsay exception and proceed to a
harmless error analysis.”).
Our jurisprudence has consistently held “the erroneous admission of
cumulative evidence is a harmless error.” Torrence v. Commonwealth, 269
S.W.3d 842, 846 (Ky. 2008). Torrence specifically involved the hearsay
testimony of a nurse regarding statements of the victim. Id. In Combs v.
Commonwealth, we held evidence of a blood test improperly admitted was
nonetheless “merely cumulative and, thus, harmless error in this case.” 965
S.W.2d 161, 165 (Ky. 1998). Finally, in Wells v. Commonwealth, then-Justice
Minton held “the introduction of the DNA report, though improper, was a
harmless error” because it was cumulative. 206 S.W.3d 332, 335-36 (Ky. 2006)
(Minton, J., concurring). 5 Consequently, even assuming error, we find it
harmless as J.T. testified in person to the substance of her abuse and
identified Dodson as its perpetrator; and Dodson introduced the forensic
5 Justice Minton was joined by three other justices in this opinion, making his
concurrence an authoritative statement of law. Wells, 206 S.W.3d at 335. 6 interview of J.T. which did the same. The medical reports were cumulative and
therefore, at worst, harmless.
For the aforementioned reasons, we affirm Dodson’s convictions and
sentence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Aaron Reed Baker Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Ryan D. Mosley Assistant Solicitor General