RENDERED: MARCH 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0019-MR
TRINO JOSE ARREOLA ORTEGA APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT v. HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 19-CR-00203
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
GOODWINE, JUDGE: Trino Jose Arreola Ortega (“Ortega”) appeals from a
Jessamine Circuit Court judgment and sentence after a jury convicted him of one
count of sexual abuse in the first degree (victim under twelve years of age).1 He
1 Kentucky Revised Statute (“KRS”) 510.110, a Class C felony. was sentenced to five years in prison. After carefully reviewing the record and
finding no error, we affirm.
BACKGROUND
A Jessamine County Grand Jury indicted Ortega on charges of rape,
first-degree (victim under twelve years of age); sexual abuse, first-degree (victim
under twelve years of age); and sexual abuse, first-degree (victim over the age of
twelve but under the age of sixteen) based on allegations from D.H.G., Ortega’s
niece by marriage.
D.H.G. testified that in 2011 or 2012, when she was five or six years
old, she visited her cousins2 frequently at their house for sleepovers a few times a
month. She testified that on one such visit, Ortega raped her. There was no
physical injury, bleeding, or trauma.
D.H.G. testified that the rape happened only once but that on multiple
occasions, she would wake during the night to Ortega touching her. Sometimes,
Ortega touched her on top of her clothes, but other times, he put his hands inside
her underwear. D.H.G. testified that the sexual abuse began after the rape, within a
few months but not more than a year, although she could not be more specific. She
testified that the sexual abuse lasted until she was twelve or thirteen years old.
D.H.G. disclosed Ortega’s abuse in 2019, about a year or two after the abuse
2 Ortega and his wife Veronica’s children.
-2- ended. The Commonwealth called four additional witnesses to testify. Their
testimony is not at issue on appeal.
Ortega testified in his defense and denied D.H.G.’s allegations of rape
and sexual abuse. He did not know why she would make up the allegations. No
other witnesses testified on Ortega’s behalf.
After closing arguments, the trial court explained the deliberation
process to the jury. Specifically, as to cell phone use, the trial court said that while
“[s]ome judges take your cell phones away[,] I’m not going to do that. You’re not
kids.” (Video Record (“VR”) 7/19/22; 11:04:40.) But the trial court admonished
that the jurors were prohibited from “us[ing] them unless in the presence of the
bailiff” for purposes of planning logistics with family members. Id. After the
admonition, jurors retired to the jury room and began deliberations. The jurors
retained their cell phones without objection from either party.
At approximately 3:35 p.m., the jury requested D.H.G.’s testimony,
which the parties agreed to play back in the courtroom. While rewatching the
video, the Commonwealth notified the trial court that some recordings were
skipped. The video was rewound, but too far back, and a portion of D.H.G.’s
testimony was played again. The replayed testimony detailed Ortega sexually
abusing D.H.G., including where she stated that he would sometimes touch her
outside and inside her clothes.
-3- Defense counsel timely objected and moved for a mistrial, arguing
poor sound quality of the video playback, concerns about the replay issue, and his
belief that it presented an unbalanced second viewing of D.H.G.’s testimony while
unduly emphasizing portions of her statements. The trial court overruled the
motion for a mistrial and allowed deliberations to continue.
At approximately 5:00 p.m., the jury submitted a question about
logistics, asking if they were expected to finish deliberations that day or if they
could continue the next day. Approximately two hours later, the jury asked to go
home. With the parties’ agreement, the trial court brought the jury back into open
court and asked the foreperson if the jurors were deadlocked or wanted to leave for
another reason.
The foreperson told the trial court and attorneys that the jury had
reached a verdict on one count and was close to reaching a verdict on the other two
counts but wanted to break for the evening. After reading the Allen3 charge, the
trial court told the foreperson that they would see how deliberations were going in
another thirty minutes but did not put a limit on that timeframe.
Approximately twenty minutes later, the jury told the trial court that it
had reached a verdict on Count 1 but not Counts 2 and 3. Thirty minutes later, the
jury unanimously reached a verdict on all three counts, convicting Ortega of sexual
3 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
-4- abuse in the first degree (victim under the age of twelve) (Count 2) and acquitting
Ortega of rape (Count 1) and sexual abuse in the first degree (victim over the age
of twelve but less than sixteen (Count 3).
Before sentencing, Ortega filed a timely motion for a new trial on
Counts 2 and 3.4 Following a hearing, the trial court denied the motion and
sentenced Ortega to five years in prison per the jury’s recommendation. This
appeal followed.
Additional facts will be discussed in the analysis.
STANDARD OF REVIEW
The trial court’s decision to grant a mistrial is within its sound
discretion, and it will not be disturbed absent an abuse of discretion. Shemwell v.
Commonwealth, 294 S.W.3d 430, 437 (Ky. 2009) (citations omitted).
Ortega has requested that we review his unpreserved claims for palpable error
under RCr5 10.26. Under palpable error review, a defendant must show “the
probability of a different result . . . so fundamental as to threaten his entitlement to
due process of law.” Huddleston v. Commonwealth, 542 S.W.3d 237, 245 (Ky.
2018) (citation omitted). We must determine whether the alleged defect “is so
4 It is unclear why Ortega requested a new trial on Count 3 when the jury returned a verdict of not guilty on that count (Record (“R.”) at 88), and the trial court subsequently entered a judgment of acquittal on Count 3. R. at 121. 5 Kentucky Rules of Criminal Procedure.
-5- manifest, fundamental and unambiguous that it threatens the integrity of the
judicial process.” Id. (citation omitted).
ANALYSIS
On appeal, Ortega argues the trial court erred by (1) permitting jurors
to have access to their cell phones during deliberations, (2) allowing jury
separation, (3) denying his motion for a mistrial, (4) utilizing an improper Allen
charge, and (5) cumulative error. We address each in turn.
First, Ortega argues that the trial court erred by permitting jurors to
keep their cell phones during deliberations. Ortega did not object before the jury
began deliberations, and he acknowledges this oversight in his brief. Had Ortega
objected to the trial court allowing jurors to access their cell phones, the standard
of review would be an abuse of discretion. Winstead v. Commonwealth, 327
S.W.3d 386, 402 (Ky. 2010). However, since the issue is not properly preserved, it
is subject to palpable error. Elery v. Commonwealth, 368 S.W.3d 78, 97-98 (Ky.
2012) (internal quotation marks and citations omitted) (“[A]n appellant preserves
for appellate review only those issues fairly brought to the attention of the trial
court. . . . A new theory of error cannot be raised for the first time on appeal.”).
Following closing arguments and before releasing the jury to begin
deliberations, the trial court said, “While some judges take your cell phones
away[,] I’m not going to do that. You’re not kids.” (VR 7/19/22; 11:04:40.) But
-6- the trial court admonished the jurors that they were prohibited from “us[ing] them
unless in the presence of the bailiff” for purposes of planning logistics with family
members. Id.
First, we acknowledge that the best practice for trial judges is to
refrain from allowing jurors to retain electronic communication devices during
deliberations, including but not limited to cell phones. Allowing jurors to keep
such devices during deliberations only invites questions and concerns about
possible juror impropriety, even where none exists. Although it has criticized the
practice, our Supreme Court has not adopted a bright-line rule against jurors
retaining cell phones during deliberations. Arnett v. Commonwealth, 470 S.W.2d
834, 837 (Ky. 1971). This issue could have been addressed had Ortega objected to
the trial court permitting the jurors to retain their cell phones during deliberations.
Ortega argues that permitting jurors to use their cell phones in the
bailiff’s presence but outside other jurors resulted in impermissible jury separation.
Ortega claims this issue was properly preserved under his motion for a new trial.
He explains that he only became aware that jurors could use their cell phones to
call or text family members about scheduling when preparing for sentencing. Once
he became aware of it, he immediately supplemented his motion for a new trial to
include the jury separation issue. After that, the trial court scheduled the motion
for an evidentiary hearing.
-7- Generally, raising an issue for the first time in a post-judgment motion
for a new trial is insufficient to preserve an error for appellate review. Smith v.
Commonwealth, 366 S.W.2d 902 (Ky. 1962). In Smith, our then highest court held
that in cases other than death penalty cases, arguing improper jury separation for
the first time in a motion for a new trial is too late for proper preservation. Under
palpable review, Ortega must show that there was an error that was “clear or plain
under current law” and that it affected his substantial rights. Commonwealth v.
Jones, 283 S.W.3d 665, 668 (Ky. 2009); RCr. 10.26.
However, Ortega’s claim presents a rather unique issue regarding
which standard of review we should undertake. Assuming, arguendo, that Ortega
brought his concerns to the trial court as soon as practicable once he became aware
of the problem, his claims still fail even under the abuse of discretion standard.
Courts in Kentucky have refused to grant a new trial due to improper
jury separation if the bailiff or another supervising official was present, and there is
a showing by the Commonwealth that no outside person exerted improper
influence on the juror. Davenport v. Commonwealth, 285 Ky. 628, 148 S.W.2d
1054, 1062 (Ky. 1941). In this case, Deputy Upton positioned himself where he
could monitor jurors making calls outside of the jury room and jurors inside the
jury room. He could hear whether the jurors on the phone discussed the case.
Deputy Upton testified that he could observe all jury members simultaneously.
-8- (VR 11/22/22; 1:28.) However, Deputy Upton testified that some jurors used text
messages and that he did not review said text messages.
During the evidentiary hearing on his motion for a new trial, the trial
court addressed Ortega’s concerns. The trial court summarized Deputy Upton’s
testimony and indicated that Deputy Upton was following his instructions. He did
not believe the witness who testified that one or more jurors exited the jury room
or room adjacent to the jury room and used their cell phones outside the presence
of Deputy Upton.
Concerning the text messages, the trial court said, “I guess we can
bring all the jurors in here who used text and put them under oath and have them
testify about whether they talked to anybody about the case. . . if you all want to
complete the record, I guess we could get the jurors in here. . . .” (VR 11/22/23;
2:23:09.) Ortega did not take the trial court up on its offer, nor did he object to the
trial court not bringing the jurors in to testify regarding the use of text messages.
Ortega’s rights were not substantially affected. There was no
evidence that the jurors’ use of cell phones swayed their decision. The trial court
admonished the jury several times against using cell phones, telling them that “you
cannot use [cell phones] unless in the presence of the bailiff.” (VR 7/19/22; 11:04-
40.) Deputy Upton testified that all phone calls he overheard related to childcare
or alerting family members that they were unsure when they would be home. (VR
-9- 11/22/22; 1:30:30.) Given the jurors’ limited use of their cell phones to notify
family members of scheduling issues, we cannot conclude that Ortega’s rights
were affected. The trial court did not abuse its discretion. Concerning the text
messages, not having objected to the trial court’s ruling, Ortega waived this issue.
Under palpable review, there is no manifest injustice. Ortega was acquitted of the
most serious allegation and received the minimum sentence for the count of which
he was convicted.
Next, Ortega argues that the technical issues during the requested
replay of D.H.G.’s testimony placed an undue emphasis on her testimony and
resulted in an unfair trial. Ortega asked the trial court for a mistrial because of the
“poor sound and replay” that allegedly “taint[ed] . . . the trial.” (VR 7/19/22;
6:05:30.) “The decision to grant a mistrial is within the sound discretion of the
trial court and such a ruling will not be disturbed absent an abuse of discretion.”
Shemwell, 294 S.W.3d at 437 (citations omitted).
In exercising discretion to replay testimony for the jury, a trial court
must balance the risk of emphasizing testimony against the need to prevent juror
confusion. Baze v. Commonwealth, 965 S.W.2d 817, 825 (Ky. 1997). As such,
courts exercise caution when allowing juries to reexamine testimony during
deliberations because there is some concern that jurors may give greater weight to
testimony they review or hear again. Wright v. Premier Elkhorn Coal Co., 16
-10- S.W.3d 570, 572 (Ky. App. 1999). Ultimately, there is an aversion to unduly
emphasizing testimony or evidence. McAtee v. Commonwealth, 413 S.W.3d 608,
628-29 (Ky. 2013).
It was permissible for the jury to review D.H.G.’s testimony. RCr
9.74 (“No information requested by the jury or any juror after the jury has retired
for deliberation shall be given except in open court in the presence of the defendant
. . . and the entire jury[.]”). Nothing in the record supports Ortega’s claim that the
testimony replay – and accompanying video glitches – resulted in an undue
emphasis on D.H.G.’s testimony.
The jury watched the testimony between 4:30 p.m. and 4:39 p.m. and
then deliberated over two more hours and acquitted him of the most serious
allegation, rape in the first degree, and the least severe allegation of sexual abuse in
the first degree (victim older than the age of twelve but less than the age of
sixteen). The jury recommended a minimum sentence of five years on the more
serious allegation of sexual abuse in the first degree (victim under the age of
twelve).
The Kentucky Supreme Court has held that the skipping and
rewinding of a recording was harmless. Burkhart v. Commonwealth, 125 S.W.3d
848, 850 (Ky. 2003), as modified on denial of reh’g (Feb. 19, 2004). In Burkhart,
the appellant challenged the video playback of a surveillance video in slow motion
-11- during deliberations, arguing that it was unduly prejudicial. Id. at 849. The
Supreme Court found no definitive evidence that the slow-motion replay of the
tape prejudiced the appellant. Id. at 851. The slow-motion replay was not done on
purpose or for any emphasis. Id. Likewise, there was no evidence that the
Commonwealth or the trial court deliberately caused D.H.G.’s testimony to skip.
Instead, like Burkhart, it was a technical mistake. Without an intentional emphasis
and actual prejudice, Ortega’s claim fails. The trial court did not abuse its
discretion in denying the motion for a mistrial because the technical malfunction
did not warrant it.
Next, Ortega argues that the trial court’s Allen charge improperly
forced an agreement among the jurors. This argument was not properly preserved
and will be reviewed for palpable error. Ortega does not argue that the trial court
erred in giving the Allen charge or that the language used was problematic.
Instead, the crux of his argument is that the Allen charge pressured the jury to
render a verdict. Ortega supports this claim by pointing to the amount of time that
lapsed from the issuance of the Allen charge to the jury reaching a verdict.
The lapse between an alleged coercive Allen charge and verdict can be
considered, although it is undoubtedly not outcome-determinative. Bell v.
Commonwealth, 245, S.W.3d 738 (Ky. 2008), overruled on other grounds by Harp
v. Commonwealth, 266 S.W.3d 813 (Ky. 2008). “The time lapse between the
-12- alleged coercive comment and the verdict may be relevant as part of the totality of
circumstances, though not decisive.” Id. at 742. Instead, it is a totality of the
circumstances that matter, including the language of the trial court and whether
taken with the time between the Allen charge and the decision, the trial court’s
language forced, rather than encouraged, a verdict. The jury deliberated fifty
minutes after the Allen charge and until the submission of the verdict form for all
three counts. Ortega points to no evidence in the record to argue that this
timeframe demonstrated coerciveness.
The trial court read an Allen charge6 to the jury, asking if they would
“give it another thirty minutes or so.” (VR 7/19/22; 6:50:40.) Similar language
and circumstances are noncoercive. In Commonwealth v. Gray, the court told the
jury “to give it some more time and a little discussion and see if you guys can
reach a verdict in this matter.” 479 S.W.3d 94, 98 (Ky. App. 2015). This
statement was found to have no “indicia of coercion” but “merely encouraged
6 Specifically, the trial court said:
To return a verdict, each juror must agree to that verdict. Jurors must consult with one another to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. Each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors. In the course of deliberations, a juror should not hesitate to reexamine their views and change their opinion if convinced it is erroneous. No juror should surrender their honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors or for the mere purpose of reaching a verdict.
(VR: 7/19/22; 6:57:03.)
-13- further deliberation.” Id. Here, the trial court suggested that an additional thirty
minutes of deliberation could be helpful to the jury. He encouraged more
thoughtful debate that evening without precluding further deliberations the next
day.
Elders v. Commonwealth, 395 S.W.3d 495 (Ky. App. 2012), further
illustrates the propriety of the trial court’s Allen charge and absence of coercion.
In Elders, the judge did not make any statements about deciding on all counts that
evening but told the jury they could find the defendant guilty of one count and
acquit on another. 395 S.W.3d at 503-04. This was not demanding or hinting at
the need for a verdict. Id. Similarly, the trial court informed the jury that they
could “reach a conclusion on one count and not reach a conclusion on other
counts.” (VR 7/19/22; 6:58:45.) Like Elders, the trial court merely informed the
jury of its options.
Given the totality of the circumstances, including the lack of
intimidating language or action by the trial court and the lapse of time, we cannot
conclude that the Allen charge was coercive. Thus, no palpable error substantially
affecting Ortega’s rights resulted in manifest injustice.
Next, Ortega contends that the jury’s role was complete when the trial
court ordered it to complete the verdict form for Count 1. Logically, the jury
-14- completed its job by filling out a full verdict form. Again, this issue was
unpreserved and will be reviewed for palpable error.
A jury completes its task only when it finishes deliberations,
announces the result in open court, and no juror dissents when polled. The very
nature of deliberations may change the views on counts previously considered. A
judge’s instruction to complete a verdict form does not lead to the end of the jury’s
role if the jury has not reached a unanimous verdict on all counts.
No case law supports Ortega’s contention that the “role of the jury
was finished” when the court directed the jury to complete the verdict form.
Ortega argues that the jury was forbidden from deliberating further on counts two
and three and “disobeyed” the court’s instructions to complete the verdict form for
count one. Neither statutory nor common law provides that juries cannot
deliberate further once the trial judge asks for a verdict form.
At Ortega’s request, the trial court wrote a note to the jury asking if it
could complete Count 1 of the verdict form. (VR 7/19/22; 7:21:30.) The trial
court did not instruct the jury that it was forbidden to continue to deliberate on the
other counts or prohibited from returning all the verdict forms. Given the back-
and-forth between the jury and the trial court that led to the Allen charge, it is
reasonable that the jury believed it was its job to complete all the forms if it could
-15- do so. It is reasonable that, given the intensity of their discussions as indicated by
the foreperson, some consensus may have been reached in these final moments.
This case is distinguishable from York v. Commonwealth, 285 Ky.
492, 148 S.W.2d 337 (1941), the sole case Ortega cites to support his argument. In
York, the jury was released into the public until the court became aware of a
dissenting statement on the back of the instructions. Id. at 338. Nothing factually
similar happened here, where deliberations were ongoing, and the jury had yet to
submit any verdict forms to the court.
Ultimately, the jury’s role was not complete when it returned to
complete the verdict form, and it was permissible for the jury to continue
deliberating. Thus, there was no error. The deliberations were ongoing as the jury
worked to complete its duty of reaching a unanimous verdict. In doing so, the jury
acquitted Ortega on Count 3. Ortega’s rights were not substantially affected to the
point where there was a manifest injustice. Therefore, the jury did not improperly
continue deliberations.
Finally, Ortega requests this Court to reverse for cumulative error.
Because no reversible error occurred, this argument fails. “Cumulative error is the
doctrine under which multiple errors, although harmless individually, may be
deemed reversible if their cumulative effect is to render the trial fundamentally
unfair.” Mason v. Commonwealth, 559 S.W.3d 337, 344 (Ky. 2018) (internal
-16- quotation marks and citation omitted). The Kentucky Supreme Court notes that
“[w]here . . . none of the errors individually raised any real question of prejudice,
[the Court has] declined to hold that the absence of prejudice plus the absence of
prejudice somehow adds up to prejudice.” Id. at 345 (quoting Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). The doctrine of cumulative
error is inapplicable because each of the alleged errors failed, resulting in no
prejudice, and their cumulative effect did not render Ortega’s trial fundamentally
unfair.
CONCLUSION
Based on the foregoing analysis, we AFFIRM the judgment of the
Jessamine Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
David J. Guarnieri Daniel Cameron Lexington, Kentucky Attorney General of Kentucky
Matthew F. Kuhn Solicitor General
Rachel A. Wright Assistant Solicitor General Frankfort, Kentucky
-17-