RENDERED: JULY 2, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1222-MR
SADIKI ROGER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JENNIFER WILCOX, JUDGE ACTION NO. 22-CR-002128
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, KAREM, AND MOYNAHAN, JUDGES.
MOYNAHAN, JUDGE: Appellant Sadiki Roger was convicted of first-degree
rape at trial in the Jefferson Circuit Court. On appeal, he contends: (1) his
statement to police was not knowingly and intelligently made, and (2) admission of
irrelevant and prejudicial evidence denied him a fair trial. For the following
reasons we affirm. BACKGROUND
On August 27, 2022, around 7:00 p.m., Roger and another man went
to an apartment in search of Roger’s friend Frederick. Residing in the apartment at
the time were Frederick, his family, and another family consisting of L.O., her
husband Israel, and their infant child. When Roger arrived, L.O. was home alone
with the baby while Israel was attending a concert. Roger waited inside the
apartment for Frederick to return while the other man departed. The parties’
accounts of the events that follow then diverge significantly.
Roger contends that L.O. initiated sexual advances towards him,
removed her clothing, and pulled him toward her. He claimed that he told her he
was not interested in having sex with a married woman, but that he “fell on top of
her,” and the two engaged in what he described as “brief intercourse” lasting
approximately two minutes, during which he ejaculated. He reported leaving the
apartment afterward, standing behind a tree to “contemplate what happened,” and
then returning to the apartment despite seeing that Israel had come home. Upon
his return, L.O. accused him of rape, and Israel physically assaulted him before
calling the police.
L.O. provided a markedly different account. She testified that she did
not know Roger and after the other man left, Roger began asking about her
husband’s whereabouts and commented that Israel “must not love her” if he left
-2- her alone. L.O. stated that Roger began touching her without consent, prompting
her to retreat to the bedroom, where her phone was charging, to call Israel. The
couple’s infant child was asleep in the bedroom at the time. Israel instructed her
not to let Roger leave and said that he was returning home. L.O. returned to the
living room, where she testified that Roger grabbed her, pushed her onto the couch,
held her down, threatened to kill her if she screamed, put a hand over her mouth,
and forcibly raped her. She reported that he ejaculated inside her and then told her
to clean herself and not to disclose what had occurred. According to L.O., Roger
left but returned sometime later. Israel arrived home shortly thereafter, physically
confronted Roger, and contacted law enforcement around 10:40 p.m.
Both L.O. and Roger were transported to the hospital. L.O.
underwent a sexual assault examination, which revealed genital lacerations as well
as DNA from both Roger and Israel; L.O. reported having had consensual
intercourse with Israel earlier that day. Roger was treated for injuries to his head,
back, and wrists consistent with the altercation with Israel. He received four
staples to close a “small laceration” on his head.
At approximately 4:12 a.m. on August 28, 2022, Detective Cockerel,
of the Louisville Metro Police Department (“LMPD”), advised Roger of his
Miranda1 rights in English during a recorded interview. After the warnings were
1 Miranda v. Arizona, 384 U.S. 436 (1966).
-3- read, Roger indicated he did not understand and requested the assistance of a
Swahili interpreter. An interpreter was contacted and participated in the interview
via speakerphone. Together, Detective Cockerel and the interpreter recited each
Miranda right, with Roger affirming his understanding after each item. They then
conveyed the waiver of these rights to Roger, who appeared to pause before
responding. Following an exchange between Roger and the interpreter,2 the
interpreter indicated that Roger understood his rights and wished to speak to
Detective Cockerel. Roger moved to suppress his statement on the grounds that
his minor head injury and exhaustion rendered any waiver involuntary.3 The trial
court denied the motion.
Additionally, before trial, Roger moved to exclude evidence that L.O.
had undergone a cesarean section (“C-section”) approximately two months before
the alleged assault, arguing that the evidence was irrelevant and prejudicial. The
Commonwealth opposed the motion, asserting that Roger’s consent defense—
specifically his claim that L.O. initiated the encounter—placed her physical
2 Although we cannot independently verify the precise content of the exchange due to the language barrier, based on the audio, the interpreter appears to have repeated the waiver in response to what sounded like Roger’s request for clarification. 3 Roger concedes that the issue of his blood alcohol content (0.171, as measured at the hospital two hours before his LMPD interview) was never raised during the suppression hearing or in post‑suppression briefing. Because intoxication was not presented as a suppression basis, and the trial court was never asked to evaluate it or make findings related to it, the issue is properly deemed to have been waived. See Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012) (“[A]n appellate court cannot consider items that were not first presented to the trial court.”).
-4- condition at issue and made the evidence probative of whether she was likely to
have been the sexual aggressor. The trial court denied the motion and permitted
the Commonwealth to introduce the evidence.
The jury ultimately convicted Roger of first-degree rape, and the trial
court sentenced him to ten years’ imprisonment, with credit for time served. Roger
raises the following arguments on appeal: (1) his Miranda waiver was invalid
because it was not made knowingly and intelligently, and (2) admission of
irrelevant and prejudicial evidence regarding L.O.’s recent C-section denied him a
fair trial.
STANDARD OF REVIEW
On appeal, suppression rulings are reviewed under a two-part
standard. Osborne v. Commonwealth, 718 S.W.3d 622, 627 (Ky. 2025). First, we
“defer to the trial court’s factual findings if they are supported by substantial
evidence and only review such findings for clear error[s.]” Bond v.
Commonwealth, 453 S.W.3d 729, 732 (Ky. 2015) (citations omitted). Second, the
trial court’s application of the law to the particular facts of the case is reviewed de
novo. Id. See also Osborne, 718 S.W.3d at 627. When reviewing the application
of the law to the facts, “we take care to give due weight to inferences drawn from
those facts by resident judges and local law enforcement officers.” Bond, 453
S.W.3d at 732 (internal quotation marks and citation omitted).
-5- “The task of weighing the probative value and undue prejudice of
proffered evidence is inherently factual and, therefore, within the discretion of the
trial court.” Burdette v. Commonwealth, 664 S.W.3d 605 (Ky. 2023) (citing Ross
v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015)); see KRE4 403. As such,
rulings on admissibility of evidence are reviewed for abuse of discretion.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A trial court abuses
its discretion when its decision was arbitrary, unreasonable, unfair, or unsupported
by sound legal principles. Id.; see also Lopez v. Commonwealth, 459 S.W.3d 867,
872-73 (Ky. 2015).
Not every error warrants action on the reviewing court’s part. “The
court at every stage of the proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties.” Ward v.
Commonwealth, 587 S.W.3d 312, 331 (Ky. 2019) (quoting RCr5 9.24).
Consequently, “[a] nonconstitutional 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.” Mason v. Commonwealth, 559 S.W.3d 337,
339-40 (Ky. 2018) (citations omitted). Where there is a constitutional error,
prejudice is presumed, Ellis v. Commonwealth, 694 S.W.3d 294, 304 (Ky. 2024)
4 Kentucky Rules of Evidence. 5 Kentucky Rules of Criminal Procedure.
-6- (citation omitted), but “[r]eversal is not required if the error complained of is
harmless beyond a reasonable doubt.” Dillon v. Commonwealth, 475 S.W.3d 1, 15
(Ky. 2015) (citations omitted); see also Nunn v. Commonwealth, 461 S.W.3d 741,
750 (Ky. 2015).
ANALYSIS
A. The Miranda Waiver Was Knowing and Voluntary.
Roger contends that the trial court erred in denying his motion to
suppress, asserting that his waiver of Miranda rights was ineffective. To be
effective, a waiver must be made “voluntarily, knowingly and intelligently.”
Dillon, 475 S.W.3d at 13 (citing Miranda, 384 U.S. at 444). Determining the
validity of a Miranda waiver is a two-part inquiry, of which each part must be
shown by a totality of the circumstances. Dillon, 475 S.W.3d at 13. “First, the
waiver must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.” Id. (internal
quotation marks and citations omitted).
In assessing Roger’s motion to suppress, the trial court made several
factual findings which were supported by substantial evidence. The rape took
place sometime around 7:00 p.m. or 8:00 p.m., though police were not called until
-7- around 10:40 p.m. Additionally, it found that Detective Cockerel arrived and
began interrogating Roger around 4:12 a.m. After a short introduction in English,
Cockerel began reading Roger his rights, at which time Roger asked for an
interpreter. A Swahili interpreter was found, who was then conferenced in by
phone and assisted in advising Roger regarding his rights. Following the
interpreter’s involvement, Roger acknowledged that he understood his rights.
To these facts, we now apply the two-part Miranda waiver analysis de
novo. The voluntariness component of the Miranda waiver test is readily satisfied
on this record. There is no indication of coercive police activity, and Roger does
not seriously contend otherwise. Thus, the remaining question is whether Roger
knowingly and intelligently waived his Miranda warnings. Roger contends that
the laceration to his head, in addition to alleged sleep deprivation, rendered his
waiver unknowing and unintelligent.
To properly evaluate whether the accused understood the nature of his
rights and the consequences of abandoning them, “we must consider the totality of
the ‘particular facts and circumstances surrounding [the] case, including the
background, experience, and conduct of the accused.’” Cox, 641 S.W.3d at 114.
(quoting Edwards v. Arizona, 451 U.S. 477, 482 (1981)). Upon initial questioning,
Roger provided his name and address in English without difficulty. Through the
interpreter, Roger indicated his understanding of each right as it was read and
-8- acknowledged the consequences of waiving these rights before agreeing to speak
with Cockerel. Taken together, these facts demonstrate that, under the totality of
the circumstances, Roger knowingly and intelligently waived his rights.
Roger’s reliance on Dillon is unavailing. In Dillon, the defendant shot
and killed his girlfriend before turning the gun on himself. Dillon, 475 S.W.3d at
4. Officers found the assailant with a gunshot wound to the top of his head – the
entry wound inside his mouth. Id. at 5. He had to be propped up by officers to
prevent him from choking on his own blood and enable him to speak. Id. After
calling emergency services, an officer asked the defendant his name, to which he
responded verbally. Id. Every question thereafter was a short yes or no question to
which the defendant responded by nodding. Id. The Kentucky Supreme Court
held that while the defendant’s statements were voluntary, there was insufficient
evidence to find that the waiver was knowing and intelligent. Id. at 14. It held that
there must be evidence a defendant has “full awareness” of the right to remain
silent and the “consequences” of waiving it. Id. at 15. The defendant in Dillon
failed this threshold because there was no indication he was capable of cognitively
integrating the rights articulated to him in a way that would have allowed him to
realize their significance. Id.
In stark contrast, here Roger was not seriously injured, and quite
readily and actively engaged in conversation with Detective Cockerel. While
-9- Roger did have a “small laceration” on his head, his pain was treated with Tylenol.
There is no indication that Roger failed to understand the nature of his rights or the
consequences of waiving them.6 To the contrary, he affirmatively acknowledged
his understanding after each right was read and indicated that he understood the
waiver and wished to speak with Detective Cockerel.
Roger’s claim now that exhaustion undermined the knowing and
intelligent nature of his Miranda waiver is unpersuasive. While a defendant’s level
of fatigue may be relevant to the voluntariness inquiry where law enforcement
employs coercive tactics,7 it carries little weight outside that context. Sleepiness
does not make one incoherent or deprive a defendant of the ability to make rational
choices. See Chapman v. Commonwealth, No. 2003-SC-0512-MR, 2004 WL
2364401, at *2 (Ky. Oct. 21, 2004); see also Brock v. Commonwealth, No. 2022-
6 As previously noted, to the extent Roger suggests that intoxication affected the validity of his waiver, that argument was not preserved for review. In any event, Kentucky courts have consistently held that intoxication will not render a statement unknowing or unintelligent unless the accused was intoxicated to the point of mania or was hallucinating, functionally insane, or otherwise unable to understand the meaning of his statements. Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013) (internal quotation marks and citations omitted). Nothing in the record, which includes the recorded interview, suggests that Roger’s level of intoxication approached that standard. Even if considered alongside the other factors, its contribution would not satisfy the threshold for an ineffective waiver. 7 See Greenwald v. Wisconsin, 390 U.S. 519, 519-21 (1968) (per curiam) (confession obtained from defendant with ninth grade education, who was questioned without Miranda warnings for over eighteen hours and was prevented from eating, sleeping, and taking his medication, deemed involuntary); Clewis v. Texas, 386 U.S. 707, 709-10 (1967) (confession resulting from nine-day interrogation with inadequate food and sleep deemed involuntary).
-10- SC-0147-MR, 2024 WL 5179093, at *8 (Ky. Dec. 19, 2024) (appearing sleepy or
yawning not sufficient to make a waiver involuntary).8 Roger was not forced to
remain awake and nothing in the record suggests drowsiness impacted his decision
to waive his rights and respond to Detective Cockerel’s questioning.
Any Error Was Harmless Beyond a Reasonable Doubt
Even if Roger’s waiver was ineffective, any error in admitting the
statement was harmless beyond a reasonable doubt. Harmless error applied to
constitutional errors “involves considering the improper evidence in the context of
the entire trial and asking whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” Ellis, 694
S.W.3d at 302 (internal quotation marks and citations omitted).
Despite finding error in admitting the statement in Dillon, our
Supreme Court nonetheless held that the error was harmless beyond a reasonable
doubt. Dillon, 475 S.W.3d at 15. Part of its reasoning was that the only
incriminating statement Dillon made was that he “killed” the victim, but he never
denied that fact at trial. Id. Indeed, he claimed the entire incident was an
accidental self-defense shooting. Id. at 7. Crucially, in his statements, he never
admitted to the mens rea for murder, the crime for which he was charged. Id. at
8 Pursuant to Kentucky Rules of Appellate Procedure (“RAP”) 41 opinions designated “Not to be Published” are non-binding. We cite to them persuasively.
-11- 15. Thus, the statements he made were not inconsistent with his trial defense and,
standing alone, their admission did not warrant reversal. Id.; cf. Ellis, 694 S.W.3d
at 303 (in a largely circumstantial case, admission of defendant’s remarks that were
“as close as you can get to a confession without confessing” was not harmless
beyond a reasonable doubt).
Here, as in Dillon, even if Roger’s statements were erroneously
admitted, they were harmless beyond a reasonable doubt. In his interview, Roger
claimed the encounter with L.O. was consensual. While he did acknowledge
sexual intercourse occurred – a fact that later DNA evidence would confirm –
he never admitted to forcible rape or any other manner of coercion that would
constitute criminal liability. Further, Roger’s statements did not serve as the
primary evidence against him and the prosecution presented substantial physical
and testimonial evidence apart from those statements.
B. The Trial Court Properly Admitted Evidence of Victim’s C-Section.
Roger argues that the trial court erred in denying his pretrial motion in
limine to exclude evidence. Prior to trial, Roger moved to prevent the
Commonwealth from introducing evidence related to the fact that the victim had a
C-section on July 6, 2022, arguing that it was not relevant, and, alternatively, to the
extent it had any marginal relevance, it should be excluded as unduly prejudicial
under KRE 403. The Commonwealth responded that the C-section was relevant to
-12- refute Roger’s assertion that the sexual encounter was consensual and to call his
account of the events leading up to the alleged assault into question.9 Roger’s
counsel responded that the Commonwealth’s proffered explanation did not hold up
because the victim herself informed hospital staff that she had engaged in
consensual sex with her husband close in time before the alleged rape. The trial
court stated that it agreed with the Commonwealth that the C-section was relevant
and denied Roger’s motion.
For evidence to be relevant, it must make the existence of any fact at
issue more or less probable. English, 993 S.W.2d at 944. However, under KRE
403, even relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of undue prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence.” KRE 403. Unduly prejudicial evidence “appeals to the
jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or
otherwise may cause a jury to base its decision on something other than the
established propositions in the case[.]” Richmond v. Commonwealth, 534 S.W.3d
228, 232 (Ky. 2017) (quoting Butler v. Commonwealth, 367 S.W.3d 609, 615 (Ky.
App. 2012)) (internal quotation marks omitted). When reviewing a trial court’s
9 Although the Commonwealth’s argument was not overly explanatory, the gist was that since the victim was recovering from surgery it was unlikely that she would have initiated sex in the manner described by Roger (removing her clothes and pulling Roger toward her).
-13- balancing under KRE 403 for abuse of discretion, we must “view the evidence in
the light most favorable to its proponent, giving the evidence its maximum
reasonable probative force and its minimum reasonable prejudicial value.”
Commonwealth v. Melton, 670 S.W.3d 861 (Ky. 2023) (quoting Major v.
Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005)); see also Burdette, 664 S.W.3d
at 617.
The trial court did not err in admitting evidence that L.O. had
undergone a C-section approximately two months before the assault. There was no
testimony by the victim that she was still actively recovering from the C-section at
the time of the alleged rape, that due to the C-section she was still under doctor’s
orders not to engage in sex, or that the C-section would have made it difficult or
impossible for her to initiate the sexual encounter as described by
Roger. However, in Roger’s version of events, as conveyed in his LMPD
interview, L.O. was the sexual aggressor who initiated the interaction. Indeed,
Roger claimed that L.O. pulled him on top of her. This clearly put L.O.’s physical
condition at issue – making her C-section surgery relevant as background
information for the Commonwealth to present. L.O.’s physical condition was also
relevant as a consideration of her ability to resist what she recounted as a non-
consensual sexual assault. Thus, the C-section was simply admitted as background
information about the victim.
-14- The C-section evidence was also not unduly prejudicial. Roger did
not object to the jury learning of L.O.’s recent delivery, but just to the fact that the
delivery involved a C-section. Yet, C-sections are commonplace medical
procedures and do not carry the sort of emotional charge that risks overwhelming a
jury’s reason. Wheeler v. Commonwealth, 121 S.W.3d 173, 181 (Ky. 2003)
(Evidence that capital murder victim was pregnant was “not sensational or
shocking or prejudicial or likely to induce any undue sympathy.”). The manner of
L.O.’s delivery had probative value, and that value was not substantially
outweighed by any prejudice the jury might have felt from knowing it was a C-
section birth.
Moreover, Roger’s argument primarily concerns what the
Commonwealth argued about the C-section in its opening and closing statements.
However, Roger neither objected to the arguments of counsel during the trial nor
alleged prosecutorial misconduct as part of this appeal. “[A] reviewing court will
generally confine itself to errors pointed out in the briefs and will not search the
record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Even if
properly presented, “[t]he longstanding rule is that counsel may comment on the
evidence and make all legitimate inferences that can be reasonably drawn
therefrom.” Murphy v. Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017). Here, the
Commonwealth’s argument essentially boiled down to this: Roger’s account was
-15- implausible because it was unreasonable to believe that a new mother who was
home alone with an infant and only a few weeks removed from a C-section would
aggressively initiate sex with a complete stranger. Such an argument was not
beyond the pale of reasonable inference.
CONCLUSION
For the foregoing reasons, the trial court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Russell Coleman Louisville, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-16-