RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0055-MR
RAYMON H. VINSON APPELLANT
APPEAL FROM CALDWELL CIRCUIT COURT v. HONORABLE NATALIE WHITE, JUDGE ACTION NO. 22-CR-00092
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES. ACREE, JUDGE: Raymon Vinson appeals his conviction and sentence for first- degree sexual abuse of a person less than 12 years old. We affirm.
BACKGROUND
Vinson was indicted for first-degree sexual abuse in September 2022.
(Record (R.) 1.) The indictment alleged Vinson subjected a person less than twelve years old to sexual contact. Vinson filed a motion in limine to “to restrict the alleged victim [R.S.] from testifying as to other cases that she had heard
[Vinson] had allegedly perpetrated; specifically [G.H.], [D.F.], and [S.B.].” (R. 37.) The motion did not request that G.H.,1 D.F.,2 or S.B. be restricted from testifying about their own cases.
The Commonwealth noticed its intent to introduce evidence of “prior bad acts” pursuant to KRE3 404(b)(1). (R. 49.) Specifically, the Commonwealth intended to introduce “testimony that [Vinson] previously had illegal sexual contact with two other under-age victims . . . from the victims themselves.” The Commonwealth asserted testimony would be “offered as proof of modus operandi and absence of mistake or accident.”
Vinson filed a second motion in limine to exclude the other victims’
testimony. (R. 54.) In response, the Commonwealth stipulated R.S. would not testify as to the other cases. (R. 70.) However, the trial court denied Vinson’s motion to exclude testimony from G.H. and D.F., concluding their testimony was admissible pursuant to the modus operandi exception to KRE 404(b). (R. 70-73.)
At the conclusion of a one-day trial, the jury returned a guilty verdict on the charge of first-degree sexual abuse. (R. 63-64.) The trial court’s judgment
1 The initials “G.H.” reflect the witness’s maiden name; at trial the witness was identified by her married name. 2 As with G.H., the initials “D.F.” reflect the witness’s maiden name; at trial the witness was identified by her married name. 3 Kentucky Rules of Evidence.
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imposing a 10-year sentence was entered on December 12, 2023, but was twice amended.4 Vinson presents various arguments his conviction should be vacated but concedes several issues he raises are unpreserved. We review each of Vinson’s arguments under the proper standard of review.
ANALYSIS
I. The trial court properly admitted testimony from G.H. and D.F. pursuant to the modus operandi exception, and any errors were harmless.
“[W]e may reverse a trial court’s decision to admit evidence only if that decision represents an abuse of discretion.” Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). A trial court abuses its discretion only if its decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. (internal quotation marks and citation omitted). Vinson argues the trial court abused its discretion by admitting the testimony of G.H. and D.F.
4 Although the second amended judgment was entered after Vinson’s first notice of appeal was already filed and 29 days after entry of the first amended judgment, the parties present no arguments the second amended judgment is void. Of course, “As a general rule, the filing of a notice of appeal divests the trial court of jurisdiction to rule on any issues while the appeal is pending, except with respect to issues of custody and support in a domestic relations case.” Goodlett v. Brittain, 544 S.W.3d 656, 665 (Ky. App. 2018). A trial court also generally “loses jurisdiction over a criminal case ten days after entry of a final judgment.” Commonwealth v. Reed, 577 S.W.3d 467, 470 (Ky. App. 2019). We presume the trial court amended its judgment a second time pursuant to Kentucky Rules of Civil Procedure (CR) 60.01, which allows clerical mistakes in judgments to be corrected “at any time” prior to the docketing of an appeal, and thereafter with the leave of the appellate court. The second amended judgment was entered six days prior to the docketing of the instant appeal. As the second amended judgment is not challenged, we construe this as an appeal of the second amended judgment. Given Vinson’s arguments on appeal, any distinctions between the first and second amended judgments are apparently immaterial.
4
Rule KRE 404(b)’s foundation is this: “Ultimate fairness mandates that an accused be tried only for the particular crime for which he is charged. An accused is entitled to be tried for one offense at a time, and evidence must be confined to that offense.” Clark, 223 S.W.3d at 96 (internal quotation marks and citation omitted). But exceptions make the rule and KRE 404(b)(1) allows evidence “offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Germane to this case, such evidence may be admitted pursuant to the so-called “modus operandi” or “signature crime” exception to KRE 404(b). While the Kentucky Supreme Court notes classic examples such as “Jack the Ripper; the BTK (bind, torture, kill) strangler; and the Unabomber . . . modus operandi may not require commonalities as blatant as those . . . .” Woodlee v. Commonwealth, 306 S.W.3d 461, 465 (Ky. 2010) (citation omitted). What is required is that there be “some peculiar or distinct commonalities that show that the crimes were committed by the same person.” Id. If that similarity and that distinction do not exist, the evidence is irrelevant because it does not “tend[] 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.
To be of “sufficient similarity” to satisfy the test of relevancy, “the facts surrounding the prior misconduct must be so strikingly similar to the charged
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offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea.” Clark, 223 S.W.3d at 96 (internal quotation marks and citation omitted).
In the instant matter, the trial court ruled the conduct alleged by R.S.
was “strikingly similar” to “prior bad acts” Vinson allegedly committed against G.H. and D.F. But, for the exception to apply, there must also be a distinctness in the prior acts in common with the acts committed against the alleged victim.
In Clark, the Kentucky Supreme Court examined the “prior bad acts”
at issue in that matter for a “distinct pattern sufficient to satisfy the modus operandi exception.” 223 S.W.3d at 98 (emphasis added). To be distinct, the factual commonalities must extend beyond those common to the elements of the offense. Id. For example, although several witnesses in Clark testified to being inappropriately touched, the lack of a “consistent allegation” as to the manner of touching weighed against application of the modus operandi exception. Id.
In determining whether a defendant’s alleged sexual abuse evinces a “distinct pattern,” our “searching analysis of the similarities and dissimilarities” can include consideration of the alleged victims’ genders, ages, the specific manner in which each was allegedly abused, whether the defendant sought “reciprocal sexual contact,” the defendant’s “position and status” relative to the alleged victims, and the location where the abuse took place. Id. at 97-99. We first review
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R.S.’s testimony at trial and then consider the relevance of G.H.’s testimony and D.F.’s testimony, respectively, as to a distinct commonality of behavior.5 R.S. was 21 years old when she testified at trial.6 She knew Vinson “[her] whole life,” and said until 2013 he was “like an uncle.” Her family and Vinson’s family spent time together and Vinson’s home was “right across the street.” R.S. testified to spending time with Vinson’s two children, including spending the night at Vinson’s home. Vinson’s daughter, K.V., would spend the night at R.S.’s family’s home.
R.S. testified that Vinson was the only adult living in his home when he inappropriately touched her in the summer of 2013. She was then just 10 years old. She was spending the night at Vinson’s home, and when it was time to go to bed, she and K.V. went to K.V.’s room where R.S. slept on the floor “like I normally would.” R.S. testified that “after we fell asleep, [Vinson] came in, he lay beside me, and first touched my arm, went to my back, and then went under my panties and rubbed my vagina” with his hand. She testified that she had been asleep when Vinson first entered the room. She awakened at a certain point but “pretended to be asleep” while Vinson touched her. R.S. estimated the entire episode lasted “around five (5) minutes.” R.S. testified that Vinson then “just
5 All verbal disfluencies—e.g., “um,” uh,” etc.—have been omitted from quoted testimony.
6 Video Record (V.R.) 10/24/23 at 1:06:40 PM.
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walked out” and she “went back to sleep.” R.S. testified she did not disclose the incident to anybody until April 2022.
G.H. was 25 years old when she testified at trial.7 Like R.S., G.H.
was friends with Vinson’s daughter, K.V., but her dad was also dating Vinson’s ex-wife. G.H. testified that in October 2013, when she was 15 years old, she visited K.V. at Vinson’s home “Several times at that point” including for sleepovers. It was typically just her and K.V. G.H. testified to an “incident” she experienced involving Vinson.
She and K.V. had been to church and later ridden four-wheelers before returning to Vinson’s home where they had dinner and showered. G.H. testified that after showering, Vinson asked his daughter K.V. if he could brush her hair and proceeded to do so. Vinson then asked G.H. if he could brush her hair and she did let him. G.H. testified she and K.V. then went to bed, sleeping in the living room. G.H. slept in a chair while K.V. slept on a couch on the opposite side of the living room. G.H. testified the chair she was sleeping in was “right beside [Vinson’s] bedroom door.” G.H. testified to waking up because Vinson was “rubbing [her] arm.” She said, “I didn’t let [Vinson] know I was awake.” G.H. testified Vinson then proceeded to rub her back. G.H. testified that Vinson proceeded to move his hand into her pants and “under my underwear.” G.H.
7 V.R. 10/24/23 at 2:01:00 PM.
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testified Vinson “was touching my private parts.” She said the touching “didn’t last long because I was on my period.” G.H. testified that Vinson then got up and went back to his bedroom. G.H. testified to calling and texting her dad and her dad’s girlfriend (Vinson’s ex-wife) about Vinson touching her, and that her dad and others soon arrived to take her home.
Vinson argues G.H.’s account is not “strikingly similar” to R.S.’s account but identifies only the following distinctions: he brushed G.H.’s hair before bed; G.H. did not know Vinson as well as R.S.; and G.H. was older than R.S. at the time of the respective incidents. These are distinctions without a true difference.
The commonalities here remind us of Martin v. Commonwealth which concluded the testimony given in that case described sufficiently similar conduct for purposes of the modus operandi exception because witnesses:
[D]escribed similar instances of sexual abuse . . . . [A]ll involved victims that were: (1) family of the [defendant]
or his wife at the time of the occurrence; (2) female; (3)
between the ages of five to eleven years old at the time of the abuse; (4) under the care of the [defendant] when the abuse occurred; (5) alone with the [defendant] when no other adults were present or if present, were asleep in a separate room; (6) bribed with something of importance to a child (money, ice cream, shopping, etc.); (7) abused by similar touching of the vaginal area, always without penetration; and (8) threatened that if they told they would get into trouble.
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170 S.W.3d 374, 380 (Ky. 2005), disagreed with on other grounds in Patterson v. Commonwealth, No. 2008-SC-000236-MR, 2010 WL 1005976, at *2 n.1 (Ky. Mar. 18, 2010).8 We have considered the distinctions Vinson would have us draw and conclude they are no more pronounced than the dissimilarities the Supreme Court deemed insufficient in Martin.9 It observed: “[T]he prior bad acts do not have to be identical to that of the charged offense.” Id.
There is no meaningful difference in the relative qualities of the commonalities and dissimilarities in the cases cited than in the case before us. All can be analyzed by addressing the following question: if we engage in a “searching analysis of the similarities and dissimilarities” between two accounts, do those accounts describe conduct “so strikingly similar . . . as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea”? Clark, 223 S.W.3d at 96-97 (internal quotation marks and citation omitted). The experiences to which R.S. and G.H.
8 Martin also cited Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (holding sufficiently similarity existed on only five similar characteristics: (1) the victims were prepubescent females; (2) the familial relationship to each victim; (3) Each incident occurred while the victim was a visitor to Appellant’s home and took place on a couch or chair; (4) Each incident occurred while the Appellee’s wife was present in the home; and (5) each incident consisted of Appellee touching the victim’s vaginal area.). Martin, 170 S.W.3d at 380 n.16. 9 “The dissimilarities include[d]: (1) that the incidents with [two victims] sometimes occurred while both of those minors were present, while the incidents involving [another victim] always occurred when no one else was present; (2) that none of the incidents involving [two of the victims] involved sodomy; and (3) that [one victim] was bribed with shopping rather than ice cream.” Id.
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testified had too much in common to be merely coincidental. Both had a prior relationship with Vinson and his family; both are female; both were assaulted at Vinson’s home; both were assaulted where Vinson was the only adult present; both describe being asleep when assaulted; both were awakened by a perpetrator touching their arm; both described a progression of touching increasingly to more intimate parts of their bodies; both described vaginal touching; both described touching of relatively short duration; and, in both of their accounts, the perpetrator did not request reciprocal sexual contact. These similarities create a “reasonable probability” the same perpetrator was responsible, and the distinctions Vinson asserts are not sufficiently striking to eclipse the commonalities.
Vinson, however, also challenges the testimony of D.F. on the same grounds. D.F. was 31 years old when she testified at trial.10 She said her family also had a relationship with Vinson’s family because Vinson’s ex-wife is D.F.’s maternal aunt. D.F. testified to knowing Vinson “my whole life.” D.F. testified to being friends with K.V., her maternal cousin. D.F. testified to going to Vinson’s house in October 2013, along with other individuals, in response to G.H. texting and calling various individuals regarding Vinson inappropriately touching her. D.F. testified she was motivated to reveal Vinson’s past conduct toward her after arriving at Vinson’s home and learning of G.H.’s experience.
10 V.R. 10//24/23 at 2:18:00 PM.
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D.F. testified to three separate incidents of inappropriate touching.
The first incident occurred in 2005 when she was 13 years old and she was at Vinson’s house. She and her cousins had been playing, and she later fell asleep. D.F. testified that her cousins were in another room, and that she “woke up to [Vinson] rubbing on my arms, and rubbing on my legs, playing with my hair.” D.F. testified Vinson then “made his way to my private area and rubbed there, and then went into my underwear, and then he fingered me.” D.F. testified that Vinson did not know she was awake at first because she “acted like [she] was asleep,” but that Vinson asked her “if [she] was okay” after. D.F. testified Vinson’s touching lasted approximately 10 to 15 minutes.
D.F. testified that although she told her mother about the incident, she was “still made to go over there” because Vinson was family. “[A] few years later,” after the first incident but while she was still a minor, she was getting ready to leave Vinson’s home, when he asked for “a hug [good]bye,” and he was going to “give [her] a kiss [good]bye” when he “stuck [his] tongue in my mouth.”
D.F. testified to a third incident in 2009. D.F. testified that Vinson’s family had been invited to her family’s home to weather an ice storm. D.F. testified that before going to bed and to sleep, she locked her door. She testified she was awakened by Vinson “jiggling” the lock, and that Vinson “popped [the lock] with something.” D.F. testified that Vinson “come [sic] in and sat there and
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watched me sleep for a few minutes,” and that Vinson then “started to rub on [her] hair and [her] legs again,” but that because she was older, she was able to tell him to stop. D.F. testified that she threatened Vinson that she would tell her maternal aunt, and that Vinson then “got up and walked out.” D.F. said that was the final occasion of inappropriate touching, but that Vinson continued to “play with [her] hair” in front of everyone at family gatherings.
The distinctions in the accounts of these incidents are noteworthy but not disqualifying. In the grander scheme of a modus operandi, they simply demonstrate Vinson’s adroitness in responding to changing circumstances. The commonalities remain: a close relationship; sleepovers, usually at Vinson’s house; D.F.’s gender; the same manner/sequence of touching; an incident of relatively brief duration; and no request for reciprocal sexual contact. Any dissimilarities are overwhelmed by elements sufficiently similar to create a “reasonable probability” the same perpetrator was responsible. That satisfies the test of relevancy because it has a “tendency to make the existence of any fact”—Vinson’s modus operandi— “more probable . . . than it would be without the evidence.” KRE 401.
But we are satisfied that, even if we presume error in allowing D.F. to testify to all three incidents, any such error was harmless. See RCr11 9.24. A trial court’s error in the admission of evidence is harmless “if the reviewing court can
11 Kentucky Rules of Criminal Procedure.
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say with fair assurance that the judgment was not substantially swayed by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (citation omitted). We have refused to deem error harmless where improperly admitted evidence was “clearly the most damning.” Barth v. Commonwealth, 80 S.W.3d 390, 396 (Ky. 2001). Conversely, we have deemed error related to witness testimony harmless where the testimony “was largely duplicative of other witness testimony and not of an indispensable nature[,]” and was otherwise of a “cumulative nature.” Hatfield v. Commonwealth, 250 S.W.3d 590, 595 (Ky. 2008). See also White v. Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999) (testimony “cumulative” and “rendered harmless” by testimony of other witnesses). If this jurisprudence describes a spectrum, D.F.’s testimony falls on its harmless end.12 Of course, that is not the end of our analysis.
Under KRE 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of
12 Vinson does not dispute the facts of the Commonwealth’s harmless error argument that:
During cross-examination of R.S., defense counsel played a recording of her interview with law enforcement. In that interview, R.S. not only went over the details of her own abuse, but also told the officer that Vinson was “prosecuted by [G.H.]” and was a registered sex offender. (VR 10/24/23; 1:48:05.) She then mentioned that D.F. had also accused Vinson but had been unable to bring charges against him. (VR 10/24/23; 1:48:45.) In short, even if G.H. and D.F. had never testified, the jury would have learned that Vinson had been accused of sexual crimes by two other victims, and that proof came in at Vinson’s request.
(Appellee’s Br. at 11.)
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the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” So, “evidence of prior sexual misconduct is properly admitted unless the danger of undue prejudice outweighs its probative value.” Martin, 170 S.W.3d at 380. Vinson argues the girls’ testimony was “highly prejudicial.” (Appellant’s Br. at 20.) But under KRE 403, the probative value of evidence is weighed only against the threat of undue prejudice.
The closest Vinson comes to arguing undue prejudice is his challenge that the trial court’s jury admonition effectively encouraged improperly regarding G.H.’s and D.F.’s testimony as propensity evidence. We are not persuaded.
To start, the Commonwealth addressed G.H.’s and D.F.’s testimony in its opening statement,13 explaining their testimony would be:
very, very similar to the testimony you’ll hear from [R.S.].
That testimony is being offered to you to show the type of—the way his mind works—the type of operation . . . in other words, this is very similar to the very same thing that [R.S.] testified [to]. It’s not being offered to you to show that because he did it once, he did it again. That’s not the reason we’re offering it.
Prior to the reading of the jury instructions, the trial court admonished the jury regarding their testimony:14
The Court is going to admonish you about the testimony from the other witnesses that were not [R.S.] and about
13 V.R. 10/24/23 at 11:44:25 AM.
14 V.R. 10/24/23 at 3:41:12 PM.
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their recollections of an event. The Court instructs you that any testimony that was heard . . . [admonition interrupted due to technical issue] . . . . The testimony today from [G.H.] and [D.F.], that is only to be admitted here today for the limited purpose of modus operandi, and that testimony is only to be considered to you by a pattern, a pattern of conduct, and must not be used as evidence in this case involving [R.S.] And therefore, you must only consider it for that limited purpose, and not for any other purpose here today. So, just remember that for the testimony of those two individuals [is] just for that purpose of pattern, not to be included in this case, with [R.S.]
Vinson argues:
[T]he admonition did more harm than good. While the court told the jury it was to consider the testimony of G.H.
and D.F. “for the limited purpose of modus operandi,” it then stated the testimony was to be considered for “a pattern of conduct.” This phrasing suggests that past criminality can determine present criminality. Courts are to “apply the [KRE 404(b)] rule cautiously, to eliminate evidence which is relevant only as proof of an accused’s propensity to commit a certain type” of act. Bell[ v.
Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994)]. A pattern suggests propensity.
(Appellant’s Br. at 20.) However, the trial court’s “pattern of conduct” phrasing with which Vinson takes issue stems from Kentucky jurisprudence.
In many published opinions, we have characterized modus operandi evidence as evincing a “pattern[.]” See, e.g., Clark, 223 S.W.3d at 98. In Lampkins v. Commonwealth, the Supreme Court said: “‘Modus operandi’ is defined as ‘[a] method of operating or a manner of procedure; esp., a pattern of criminal behavior so distinctive that investigators attribute it to the work of the
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same person[.]’ Modus Operandi, BLACK’S LAW DICTIONARY (11th ed. 2019).” 701 S.W.3d 99, 118 n.16 (Ky. 2024) (emphasis added). Vinson’s argument fails to convince this Court of any undue prejudice but, in fact, reinforces our view of “the legitimate probative force of the evidence.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 716 (Ky. 2009). II. Vinson’s unpreserved allegations of error do not constitute “palpable error.”
We are authorized to review unpreserved claims of error for palpable error by RCr 10.26. Where the rule is applicable, appropriate relief may be granted only upon a determination that manifest injustice has resulted from the error. Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009). An error is “palpable” only if it is clear or plain under current law. Id. In general, a palpable error affects the substantial rights of a party only if “it is more likely than ordinary error to have affected the judgment.” Id. (quoting Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005)). Finding palpable error requires a “substantial possibility” that a different result would have occurred but for the unpreserved error. Johnson v. Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023). We find no palpable error here.
First, Vinson argues “[p]alpable error occurred because the instruction on first degree sexual abuse included an element not applicable to the crime charged.” (Appellant’s Br. at 21.) Vinson was indicted pursuant to KRS15
15 Kentucky Revised Statutes.
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510.110(1)(b)2., and a person is guilty of first-degree sexual abuse under that provision if “[h]e or she subjects another person to sexual contact who is incapable of consent because he or she . . . [is] less than twelve (12) years old.” The jury returned a guilty verdict based on the instruction which read:
You will find the Defendant guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this County on or between January 1, 2012 and December 31, 2013 and before the finding of the indictment herein, the Defendant, RAYMON VINSON, engaged in a continuing course of conduct resulting in him subjecting [R.S.] to sexual contact . . . .
(R. 63) (emphasis added).
So, Vinson’s complaint is that the instruction improperly called for proof of a continuing course of conduct—i.e., a greater quantum of proof than a proper instruction requires. We fail to see the logic in claiming this higher bar for conviction, if removed from the instruction, would have led to a different result. This argument fails.
Vinson’s second argument is that because the instruction included an extra element, the Commonwealth should have been required to prove it and, having failed to do so, the trial court was required to grant him a directed verdict. Oddly, Vinson’s failure to ask for such relief not only means the argument is unpreserved, it means he faults the court for not granting a motion he never made.
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Furthermore, the time for directed verdict had come and gone when instructions were prepared. Vinson’s subsequent failure to object to the technically but not prejudicially flawed instruction made him complicit to it. We believe the reason the jury was unaffected by the flawed instruction is because they saw in this record, as we do, a continuing course of conduct.
Our bottom line is this. If Vinson had made a motion for directed verdict based on the Commonwealth’s failure to prove all elements of the flawed instruction, that would have led to one of two outcomes: (1) the flawed instruction would have been corrected before presentation to the jury; or (2) it would not have been corrected and the jury would have convicted on the flawed instruction. The second outcome happened. But either way, there is no “substantial possibility that a different result would have occurred.” Id.
Finally, Vinson makes the unpreserved argument that the Commonwealth committed prosecutorial misconduct on cross-examination by asking Vinson to “characterize the testimony of other witnesses as lying.” (Appellant’s Br. at 31.) Vinson directs us to Moss v. Commonwealth of Kentucky, 949 S.W.2d 579 (Ky. 1997), and argues the Commonwealth “undermined his entire testimony.” (Appellant’s Br. at 35.) In Moss, the Supreme Court explained:
A witness should not be required to characterize the testimony of another witness . . . as lying. Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony.
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Counsel should be sufficiently articulate to show the jury where the testimony of the witnesses differ[s] without resort to blunt force.
949 S.W.2d at 583. However, in Moss, the Kentucky Supreme Court declined to grant relief, concluding the error did not rise to the level of palpable error. We perceive no palpable error here either.
Vinson states his “defense at trial was one of actual innocence.”
(Appellant’s Br. at 6.) In other words, Vinson’s defense was that R.S. was lying. The Supreme Court addressed a similar argument in Barrett v. Commonwealth, where “[t]he defense’s theory of the case was that [the alleged victim] lied about the sexual abuse . . . The Commonwealth’s cross-examination pressed [the defendant] on that theory. This Court has not yet found such a Moss violation to rise to palpable error.” 677 S.W.3d 326, 341 (Ky. 2023).
CONCLUSION
Based on the foregoing, the December 12, 2023 Judgment of the Caldwell Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General Frankfort, Kentucky