Syed Joseph Ali v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 23, 2023
• Docket: 2022 CA 000291
• Status: Unknown

Opinion

RENDERED: AUGUST 25, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0291-MR

SYED JOSEPH ALI APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 16-CR-002004

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Syed Joseph Ali brings this appeal from a March 2, 2022,

Amended Judgment of Correction and Sentence of the Jefferson Circuit Court that

sentenced Ali to five-years’ imprisonment. We affirm.

On July 25, 2016, Ali was indicted by the Jefferson County Grand

Jury upon two counts of first-degree sexual abuse (victim under twelve years of

age) and upon one count of distributing obscene material to a minor. The

indictment stemmed from Ali’s alleged sexual abuse of a four-year-old girl, M.W. At trial, it was established that Ali was babysitting M.W. at his residence for a few

hours during the day of April 4, 2016. N.M. (M.W.’s mother) testified that before

going to bed that night, M.W. told her that something had happened to her at Ali’s

home. N.M. called the police and reported the incident. Later, N.M. testified that

she initiated a “controlled” or recorded phone call with Ali at the direction of a

Louisville Metro police detective and while at the detective’s office. According to

N.M., the detective instructed her to call Ali in order to discuss the sexual abuse

allegations. The recorded phone call was played for the jury. In the phone call,

Ali admitted that he rubbed lotion on M.W.’s behind and all the way up. Ali then

stated that M.W. started “grinding” on his hand. Ali further stated that M.W.

wanted him to continue to do it more. Because M.W. grinded upon his hand, Ali

claimed that he then became suspicious that M.W. had been previously abused.

So, according to Ali, he then showed M.W. an animated video that shocked M.W.

N.M. told Ali that M.W. said that the animated video depicted a girl character

licking a boy character, and he said “yeah.”

After a three-day trial in 2018, the jury found Ali guilty of one count

of sexual abuse in the first degree and of distributing obscene material to a minor.

The jury was unable to reach a unanimous verdict on the remaining count of first-

degree sexual abuse. The Commonwealth and Ali then reached a sentencing plea

agreement. Thereunder, Ali would receive a total term of five-years’

-2- imprisonment and would waive his right to an appeal. The Commonwealth agreed

to dismiss the other first-degree sexual abuse charge. The court then conducted a

plea colloquy with Ali and he accepted the agreement.

Before sentencing, Ali filed a pro se motion for a new trial and

appointment of new counsel. The circuit court denied the motion for appointment

of counsel as Ali was not indigent. Eventually, new counsel entered an appearance

on behalf of Ali. Ali filed a motion to withdraw from the sentencing plea

agreement. Ali claimed that he did not knowingly or intelligently enter into the

agreement due to ineffective assistance of trial counsel. Ali also sought a

continuance of the sentencing hearing.

The circuit court denied the motion for continuance, the motion for a

new trial, and the motion to withdraw from the sentencing plea agreement. By

Amended Judgment of Conviction and Sentence entered May 21, 2019, the circuit

court sentenced Ali to a total of five-years’ imprisonment.

Ali pursued a direct appeal of the May 21, 2019, judgment to the

Court of Appeals. In Ali v. Commonwealth, No. 2019-CA-000842-MR, 2020 WL

4917934 (Aug. 21, 2020), the Court of Appeals vacated in part, affirmed in part,

and remanded. The Court held that the circuit court committed reversible error by

not granting Ali’s motion to continue the sentencing hearing. The Court of

-3- Appeals also concluded that the circuit court properly determined that Ali was

ineligible for probation and considered the remaining issues moot.

Upon remand, the Commonwealth and Ali reached another sentencing

agreement. Thereunder, Ali would be sentenced to a total of five-years’

imprisonment and retain his right to appeal the underlying conviction. By a March

2, 2022, Amended Judgment of Conviction and Sentence, the circuit court

sentenced Ali to a total of five-years’ imprisonment. This appeal follows.

Ali initially contends that the circuit court committed reversible error

by admitting into evidence a ten-second clip of a video that contained animated

pornography. Ali pointed out that the animated video was on a DVD that was

seized from his residence by police when executing a search warrant. Ali argues

that the DVD was improperly admitted because M.W. “denied that the defendant

showed her any obscene images, and the DVD had not been properly authenticated

or identified as something shown to the child.” Ali’s Brief at 10. Additionally, Ali

alleges that the animated video was not relevant because there was no evidence

showing that the animated video on the DVD was the one, in fact, shown to M.W.

And, if relevant, Ali maintains that it was unduly prejudicial.

Relevant evidence is evidence that 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.” Kentucky Rules of Evidence

-4- (KRE) 401. Relevant evidence is generally admissible as provided for in KRE 402

unless “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 403.1 When

evidence is tangible or physical, the foundation or authentication requirement

found in KRE 901 is triggered. KRE 901 provides, in relevant part:

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Physical evidence may be authenticated by direct or circumstantial evidence.

Dooley v. Commonwealth, 626 S.W.3d 487, 496 (Ky. 2021). Our Supreme Court

has recognized that “a party seeking to introduce an item of tangible evidence need

not satisfy an ‘absolute’ identification requirement, and evidence is admissible if

the offering party’s evidence reasonably identifies the item.” Grundy v.

Commonwealth, 25 S.W.3d 76, 80 (Ky. 2000). This Court reviews the circuit

court’s ruling on the admission or exclusion of evidence for an abuse of discretion.

Dooley, 626 S.W.3d at 493.

At trial, the Commonwealth introduced evidence (controlled phone

call) that Ali showed M.W. an animated video portraying a girl character licking a

1 Relevant evidence may be deemed inadmissible per specific rules of evidence or law.

-5- boy character. The ten-second animated video on the DVD played for the jury

depicted a girl character licking a boy character. Through a detective’s testimony,

it was established that the DVD was seized from Ali’s residence during execution

of the search warrant. Also, there was evidence that Ali played the animated video

for M.W. at his residence. Upon the whole, we believe the animated video was

relevant and that its probative value was not substantially outweighed by undue

prejudice. Accordingly, the circuit court did not abuse its discretion in concluding

that the animated video was properly authenticated and in admitting the video into

evidence.

Ali next asserts that he was entitled to a directed verdict of acquittal

upon the offense of distributing obscene matter to a minor. In support thereof, Ali

points out that at trial, “M.W. denied that [Ali] had shown her any images of

obscene material.” Ali’s Brief at 12. Ali maintains that the only evidence

introduced by the Commonwealth was the controlled phone call with N.M. and the

ten-second animated video. Ali believes that the animated video should have been

excluded, and that absent its admission, the Commonwealth failed to produce

sufficient evidence that a reasonable juror could find him guilty of distributing

obscene matter to a minor.

The offense of distribution of obscene matter to minors is codified in

KRS 531.030 and provides, in part:

-6- (1) A person is guilty of distribution of obscene material to minors when, knowing a person to be a minor, or having possession of such facts that he should reasonably know that such person is a minor, and with knowledge of the content and character of the material, he knowingly:

(a) Sends or causes to be sent; or

(b) Exhibits; or

(c) Distributes, or offers to distribute, obscene material to a minor.

The term “obscene” is defined as:

(3) “Obscene” means:

(a) To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and

(b) The matter depicts or describes the sexual conduct in a patently offensive way; and

(c) The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

KRS 531.010(3). Upon appellate review, we must determine whether it was

clearly unreasonable for the jury to have found defendant guilty. Commonwealth v

Benham, 816 S.W.2d 186, 187 (Ky. 1991).

The Commonwealth introduced evidence that M.W. was four years

old and was a minor at the time of the crime. It is uncontroverted that Ali knew

M.W. was a minor. In the controlled phone call, N.M. described the animated

-7- video shown to M.W. as a girl character licking a boy character. The jury could

reasonably infer that the animated video depicted a female character engaged in

oral sex with a male character. In the controlled phone call, Ali admitted that it

was a mistake to have shown M.W. the video and that she was too young to watch

the video. Considering the evidence most favorably to the Commonwealth, we

conclude that the jury could have reasonably found that Ali showed M.W. an

obscene animated video. Accordingly, the circuit court properly denied Ali’s

motion for directed verdict upon the offense of distributing obscene matter to a

minor.

Ali also argues that the circuit court committed reversible error by

concluding that M.W. was competent to testify at trial. Ali states that M.W. was

four years old at the time of the incident and six-years old at the time of trial. Ali

alleges that M.W. could not recall facts before the age of five during the

competency hearing. Ali further maintains that M.W. demonstrated she lacked the

ability to discern a truth from a lie during the competency hearing. At trial, Ali

contends that M.W. falsely claimed she had met with the prosecution four times

prior to trial. Taken together, Ali insists that M.W. was not competent to testify at

trial.

The competency of a witness to testify at trial is addressed in KRE

601, which provides:

-8- (a) General. Every person is competent to be a witness except as otherwise provided in these rules or by statute.

(b) Minimal qualifications. A person is disqualified to testify as a witness if the trial court determines that he:

(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;

(2) Lacks the capacity to recollect facts;

(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or

(4) Lacks the capacity to understand the obligation of a witness to tell the truth.

It is well-established that “there is no minimum age for testimonial

capacity.” Harp v. Commonwealth, 266 S.W.3d 813, 823 (Ky. 2008) (quoting

Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002)). Under KRE 601,

there is a presumption of competency, and the party seeking exclusion of the

witness must demonstrate incompetency. Burton v. Commonwealth, 300 S.W.3d

126, 142 (Ky. 2009). When competency is challenged, it is incumbent upon the

trial court to hold a hearing to determine the witness’s competency. And, it is

within the trial court’s sound discretion to determine the competency of a witness,

and the trial court’s decision will only be disturbed on appeal where there is an

abuse of discretion. Howard v. Commonwealth, 318 S.W.3d 607, 612 (Ky. App.

2010).

-9- The record on appeal reveals that the circuit court conducted a

competency hearing as to M.W. However, the hearing was not recorded for

appellate review, although both parties confirmed at oral argument that counsel

were present for this hearing. It is the duty of appellant to ensure a complete

record is available on appeal, and in the absence thereof, this Court will not

consider any allegation based upon the omitted record. Kentucky Rules of

Appellate Procedure 25(B).

Nonetheless, we have reviewed the arguments that counsel made on

the record after the competency hearing and the trial testimony of M.W. At trial,

M.W. identified Ali and was able to recollect the events surrounding her abuse.

M.W. stated that Ali pulled down her pants and underwear and rubbed medicine

inside her private area. In an exhibit, M.W. drew on a girl where her private area

was located. M.W. also stated that she did not ask Ali to put medicine on her and

did not like it. M.W. also recounted that the abuse took place in Ali’s bedroom.

While M.W. was confused about how many times she met with the prosecutor

before trial, M.W. was crystal clear concerning the abuse perpetrated by Ali and

her recollection of it. M.W. also understood that she was to tell the truth. And, Ali

extensively cross-examined M.W. and pointed out any inconsistent statements to

undermine her credibility to the jury. Upon the whole, we conclude that the circuit

court did not abuse its discretion by finding M.W. competent to testify.

-10- Ali further contends that the circuit court committed reversible error

by limiting defense counsel’s closing argument. In particular, Ali argues:

The trial court erred in ordering defense counsel not to comment on the indictment, and how the proof at trial differed from the indictment. “[C]ounsel is granted wide latitude during closing argument. . . .”

Here, the defense had a convincing argument based upon the indictment. In count three, the indictment charged Mr. Ali with showing the child one item of obscene material, prior to trial the prosecutors identified a second item, and at trial, the prosecutors showed the jury a third different item that the prosecution claimed was the obscene material. The appellant has a strong argument that the changes to the prosecution’s theory demonstrate the lack of evidence to support it. . . .

Ali’s Brief at 17, 18.

In response, the Commonwealth points out that during closing

argument, defense counsel started to assert that the Commonwealth’s allegations in

the indictment as to one count of sexual abuse differed from the evidence

introduced at trial to prove that charge. However, the Commonwealth maintains

that defense counsel did not make such arguments related to distribution of

obscene matter to a minor. The Commonwealth argues that the error was not

preserved for appellate review.

A review of the record reveals that the Commonwealth is correct, and

this alleged error was not properly preserved for appellate review. If inadequately

-11- preserved, Ali requests this Court to conduct a review for palpable error under

Kentucky Rules of Criminal Procedure (RCr) 10.26.

Under RCr 10.26, a palpable error occurs if a defendant’s substantial

rights are affected, and a manifest injustice would occur. Martin v.

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Stated differently, an error is

regarded as palpable if there is a substantial possibility that the result would have

been different. Sigrist v. Commonwealth, 660 S.W.3d 636, 641 (Ky. App. 2022)

(quoting Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).

Based on our review, Ali has failed to demonstrate that the alleged

error in restricting defense counsel’s closing argument constituted palpable error.

Therefore, we hold that the circuit court did not commit palpable error in regard to

defense counsel’s closing argument.

Ali lastly asserts that the circuit court committed reversible error by

excluding certain testimony of Ali’s mother. Ali maintains that his mother would

have testified concerning Ali’s “background, training, education, and history,

including his medical background in providing direct care and in home care, both

in and out of the military.” Ali’s Brief at 14. Ali sought to introduce his medical

background to advance his defense that he put lotion on M.W. due to a rash or

irritation. Ali argues that such evidence was relevant to his defense and that its

exclusion denied him a fair trial.

-12- RCr 9.24 reads:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. 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.

Additionally, KRE 103(a) provides that “[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is

affected . . . .”

At trial, other witnesses testified concerning Ali’s medical

background and referenced his military service. So, the jury was aware of Ali’s

medical background and military service. In the final analysis, Ali has simply

failed to demonstrate that the exclusion of his mother’s testimony affected his

substantial rights. Therefore, we cannot conclude that the circuit court committed

reversible error by excluding certain testimony of Ali’s mother.

For the foregoing reasons, the Amended Judgment of Correction and

Sentence of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

-13- BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE: FOR APPELLANT: Daniel J. Cameron Michael L. Goodwin Attorney General of Kentucky Louisville, Kentucky Frankfort, Kentucky

Matthew Robert Krygiel Assistant Attorney General Frankfort, Kentucky

ORAL ARGUMENT FOR APPELLEE:

Rachel A. Wright Assistant Attorney General Frankfort, Kentucky

-14-