Genuine Jury Deadlock Permits Retrial, and Drug Evidence May Establish Opportunity for Child Sexual Abuse

Commentary on Jereme Riley v. Commonwealth of Kentucky
Supreme Court of Kentucky, No. 2025-SC-0362-MR
Rendered October 22, 2026

1. Introduction

This appeal concerned Jereme Riley’s convictions for sexual offenses against S.W., who was ten years old when the offenses occurred. The Commonwealth’s evidence described a household destabilized by the parents’ methamphetamine addiction. Riley supplied methamphetamine to the parents and lived in their home without paying rent. S.W.’s mother also testified that she exchanged sex with Riley for methamphetamine. According to the parents, their drug use, prolonged sleeping, and absences left the children inadequately supervised.

S.W. testified that Riley gradually initiated sexual contact and first raped her in May 2016. She described repeated abuse and a threat intended to prevent disclosure. She first disclosed the abuse to a therapist in 2019. A separate incident involving anonymous Snapchat messages led to renewed disclosure and police investigation in 2021. The opinion does not identify Riley as the sender of those messages.

The defense challenged S.W.’s credibility and the chronology. In particular, earlier accounts suggested Riley did not move into the home until July 2016, whereas the charged conduct submitted to the second jury was alleged to have occurred in May. The defense also argued that S.W. fabricated the allegations to escape trouble arising from the Snapchat incident.

Riley’s first trial, on October 29, 2024, ended when the jury could not agree. After a second trial, the jury found him guilty of first-degree rape, first-degree sodomy, two counts of first-degree sexual abuse, intimidating a participant in a legal process, and being a second-degree persistent felony offender. His resulting sentence was life imprisonment with the possibility of parole. He appealed as a matter of right under Section 110(2)(b) of the Kentucky Constitution.

The appeal raised double jeopardy, racial discrimination in jury selection, the permissible scope of redirect examination, other-acts evidence, improper credibility testimony, prosecutorial closing argument, and cumulative error.

2. Summary of the Opinion

The Supreme Court of Kentucky affirmed the judgment on every issue:

  1. Retrial was permissible: the first jury’s genuine deadlock established manifest necessity for a mistrial. Defense counsel’s participation also amounted to consent.
  2. The jury-selection challenge failed: the prosecutor supplied a case-related, race-neutral explanation for striking Juror 170, and the trial judge independently observed the relevant demeanor.
  3. The challenged redirect was permissible: although the question exceeded the scope of cross-examination, KRE 611(a) gave the judge discretion to allow relevant testimony.
  4. The drug-related evidence was admissible: it explained Riley’s access to S.W. and was intertwined with the household circumstances surrounding the abuse.
  5. The challenged witness testimony did not require a mistrial: objections, unanswered questions, and jury admonitions sufficiently addressed the improprieties.
  6. The prosecutor’s closing argument did not justify reversal: personal attacks on defense counsel were improper, but the court found any resulting error harmless in context.
  7. There was no cumulative prejudice: the identified problems did not collectively render the trial fundamentally unfair.

All justices agreed with affirmance. Justice Thompson concurred in the result only, rather than joining the court’s reasoning.

3. Analysis: Precedents Cited and Legal Reasoning

A. Review Standards and the Importance of Preservation

Precedents cited

Robertson v. Commonwealth, 677 S.W.3d 309 (Ky. 2023), supplied the framework for reviewing Riley’s unpreserved double-jeopardy claim. Drawing on Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009), the court explained that palpable error must be clear or plain and materially affect substantial rights. Through Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006), it emphasized manifest injustice, a probability of a different result, or a fundamental threat to due process. Through Baumia v. Commonwealth, 402 S.W.3d 530 (Ky. 2013), it focused on defects threatening the integrity of the judicial process.

Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999), supplied the recurring abuse-of-discretion standard: whether a ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Application and significance

Riley conceded that he had not preserved his objection to the first mistrial and requested review under RCr 10.26. The court nevertheless found no underlying error, making the heightened palpable-error threshold unnecessary to the outcome. Other claims were reviewed through the substantial discretion ordinarily afforded to trial judges managing evidence, witnesses, jury selection, and mistrial requests.

These standards matter because an appellate court does not simply substitute its preferred trial-management decision. It asks whether the trial judge acted within legally permissible bounds, while applying additional restrictions where the defendant failed to object.

B. Genuine Jury Deadlock Justified the First Mistrial and Permitted Retrial

Precedents cited

  • Sneed v. Burress, 500 S.W.3d 791 (Ky. 2016), relying on Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009), established that jeopardy attaches when the jury is impaneled and sworn. Once attached, trial before a different jury ordinarily requires either manifest necessity for a mistrial or the defendant’s request or consent.
  • Commonwealth v. Scott, 12 S.W.3d 682 (Ky. 2000), drawing on Stewart v. Commonwealth, 497 S.W.2d 226 (Ky. 1973), defined manifest necessity as an urgent or real necessity and required a case-specific inquiry. It also recognized the trial judge’s discretion in determining whether that necessity exists.
  • Grimes v. McAnulty, 957 S.W.2d 223 (Ky. 1997), identified an irreconcilably deadlocked jury as the most common example of manifest necessity.
  • Allen v. United States, 164 U.S. 492 (1896), supplied the name for the supplemental instruction encouraging further deliberation. The opinion did not separately examine the instruction’s wording or decide a coercion challenge.
  • Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016), upheld a mistrial after substantially longer deliberations following an eleven-day trial. The court distinguished that factual setting rather than treating its deliberation period as a mandatory minimum.

Application

The first jury began deliberating at 3:33 p.m. After an initial question, it remained unable to reach a verdict. At 5:50 p.m., the court gave an Allen charge. Following further deliberations, the jury again reported an impasse. Its foreperson disclosed an 8–4 division and stated that additional deliberations would not be fruitful.

The court emphasized that hunger and fatigue were not preventing agreement. The problem was a settled disagreement over the case. Against the relatively short presentation of evidence, those circumstances supported the judge’s conclusion that continued deliberations would not produce unanimity.

The opinion’s narrative descriptions of elapsed time are not entirely consistent with its recorded clock times. Its essential reasoning, however, does not depend on a precise number of hours: repeated reports of deadlock, the supplemental instruction, the foreperson’s assessment, and the trial’s limited duration together justified the mistrial.

The court also found an independent ground for allowing retrial: consent. Defense counsel told the judge, “I think you’ve already done what you can,” argued that the jurors appeared unlikely to move, and did not object when the mistrial was declared. The holding rests on that affirmative participation combined with nonobjection, not on a general rule that silence alone always establishes consent.

Significance

The decision rejects a stopwatch approach to manifest necessity. Gray v. Commonwealth did not require every jury to deliberate for ten hours. Conversely, this opinion does not establish that roughly three hours always suffices. The relevant question is whether the particular jury has genuinely exhausted a reasonable opportunity to agree.

C. A Case-Related Demeanor Explanation Supported the Peremptory Strike

Precedents cited

  • Batson v. Kentucky, 476 U.S. 79 (1986), established the constitutional prohibition against racially discriminatory peremptory challenges and the three-stage framework for evaluating them.
  • Washington v. Commonwealth, 34 S.W.3d 376 (Ky. 2000), explained both the Equal Protection foundation and the prosecutor’s obligation to provide clear, reasonably specific race-neutral reasons once the initial showing is made. It also identified the judge’s ultimate responsibility to determine whether purposeful discrimination occurred.
  • Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015), described the three stages and clarified that the initial showing requires an inference of racial discrimination.
  • Johnson v. Commonwealth, 450 S.W.3d 696 (Ky. 2014), permitted an instinct-based strike only when accompanied by an articulable, case-related reason. It therefore required more than an unexplained assertion of intuition.
  • Ross v. Commonwealth, 455 S.W.3d 899 (Ky. 2015), supported substantial appellate deference because assessing prosecutorial demeanor and credibility is especially within the trial judge’s province.

Application of the three stages

  1. Initial inference: defense counsel objected that the strike of Juror 170 appeared racially motivated. Although the appellate record did not establish the juror’s race, the trial court accepted an explanation and ruled on the challenge. The Supreme Court treated that sequence as an implicit finding that the initial threshold had been satisfied.
  2. Race-neutral explanation: the prosecutor cited the juror’s response that a child’s reaction to crime “depends on the kid,” together with visible skepticism concerning delayed disclosure. The latter concern directly related to the prosecution because S.W.’s report to law enforcement came years after the alleged abuse.
  3. Purposeful discrimination: the trial judge independently observed the facial reaction underlying the prosecutor’s principal explanation. That observation supported the explanation’s credibility, and the appellate court deferred to the trial judge’s assessment.

Significance and limits

The holding is strongest where the explanation identifies specific behavior, connects it to a genuine trial issue, and receives independent confirmation from the judge. It does not authorize a strike merely because a prosecutor labels an unexplained reaction suspicious.

The distinction between the second and third stages remains important. A facially race-neutral explanation can still be a pretext. The court’s conclusion depended on its acceptance of the explanation as genuine, not simply on its race-neutral wording. The incomplete record concerning the juror’s race also illustrates why careful documentation of jury-selection objections matters.

D. Redirect May Exceed Cross-Examination Within the Judge’s Discretion

Precedents cited

Commonwealth v. Armstrong, 556 S.W.3d 595 (Ky. 2018), quoting Davenport v. Commonwealth, 177 S.W.3d 763 (Ky. 2005), supported abuse-of-discretion review of examination limits.

Brown v. Commonwealth, 174 S.W.3d 421 (Ky. 2005), citing White v. Commonwealth, 166 S.W.2d 873 (Ky. 1942), supplied the ordinary rule that redirect should explain matters developed on cross-examination. The same Brown v. Commonwealth decision, drawing on Robert G. Lawson’s The Kentucky Evidence Law Handbook, recognized substantial discretion to depart from that norm under KRE 611(a).

Application

The prosecutor’s opening statement previewed testimony that S.W. cleaned up blood after the assault, but that detail was omitted from direct examination. On redirect, the prosecutor asked what S.W. noticed about the washcloth used afterward. The defense objected because cross-examination had not addressed that subject.

Both the trial court and Supreme Court agreed that the question exceeded the scope of cross-examination. Nevertheless, KRE 611(a) authorizes reasonable control over the order and manner of presenting evidence to ascertain truth, avoid wasted time, and protect witnesses.

The court connected the testimony to the defense’s attack on S.W.’s credibility. Her description of blood was relevant to the account the defense claimed she had fabricated. The judge cautioned the prosecutor about keeping track of the evidence, and the additional redirect remained brief.

Significance and limits

The decision distinguishes the ordinary scope rule from an absolute prohibition. Exceeding the usual bounds of redirect does not automatically require exclusion when the judge reasonably permits the additional testimony.

Importantly, the washcloth evidence was S.W.’s testimony about an alleged physical consequence; the opinion does not describe an independently tested washcloth or medical confirmation. Its admissibility should not be confused with independent forensic corroboration. Nor does the decision eliminate ordinary relevance, prejudice, and fairness controls over additional questioning.

E. Drug Evidence Explained Opportunity and the Household Context

Precedents cited

  • Hernandez v. Commonwealth, 671 S.W.3d 217 (Ky. 2023), stated the prohibition against using other acts merely to prove criminal disposition. Relying on Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994), it required examination of a legitimate noncharacter purpose, sufficient proof of the other act, and prejudice compared with probative value. Both authorities emphasized caution.
  • Anderson v. Commonwealth, 231 S.W.3d 117 (Ky. 2007), supported abuse-of-discretion review of admission under KRE 404(b).
  • Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013), quoting Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003), explained that KRE 404(b)(2) permits a complete, unfragmented account where the evidence is genuinely intertwined with the case.
  • Jenkins v. Commonwealth (2016), discussed in a footnote, distinguished the character-related prejudice inquiry associated with KRE 404(b) from KRE 403’s potentially broader assessment of unfair prejudice. Although the inquiries may be combined in practice, satisfying a nonpropensity purpose does not eliminate general evidentiary balancing.

Application under KRE 404(b)(1): opportunity

The Commonwealth gave notice under KRE 404(c) that it intended to introduce evidence of Riley’s drug activity. Riley objected before the first trial and renewed his objection before the second.

The court found a direct connection between that activity and opportunity. Supplying methamphetamine explained why Riley lived in the home and had continuing access to S.W. The parents’ drug use also explained deficient supervision, including periods when they slept or left the home.

The logical chain was therefore not that a person who supplies drugs is more likely to commit sexual offenses. Rather, the drug arrangement helped explain the particular access and circumstances through which these offenses could occur. The parents’ testimony provided direct evidence of the exchanges.

Application under KRE 404(b)(2): intertwined evidence

The court separately concluded that removing the methamphetamine evidence would fragment the account of Riley’s presence and the household’s operation. The evidence explained his relationship with the parents and the conditions surrounding S.W.’s lack of protection.

Riley argued that the abuse occurred while the parents were away and that S.W. did not say he was intoxicated during it. The court rejected the premise that either point defeated relevance. The evidentiary connection concerned access, residence, and supervision—not whether intoxication directly caused an assault.

KRE 403 and the limits of contextual evidence

Drug distribution and sex exchanged for drugs carry obvious risks of moral condemnation. The court nonetheless found the evidence’s contextual and opportunity-related value sufficient to overcome unfair-prejudice concerns.

The opinion described the probative value as substantially outweighing potential unfair prejudice. That was its assessment of this record, not a replacement for KRE 403’s ordinary inquiry into whether the danger of unfair prejudice substantially outweighs probative value.

The court treated the methamphetamine-for-sex testimony as part of the same household context, without separately developing an extended analysis of that exchange. Future courts should therefore avoid reading the decision as automatic approval of every inflammatory detail in a defendant’s relationship with other household members. The admissible connection must remain specific and necessary to a legitimate evidentiary purpose.

F. Improper Credibility Evidence Was Addressed Without a Mistrial

Precedents cited

  • Lawless v. Commonwealth, 724 S.W.3d 679 (Ky. 2025), and Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky. 1985), characterized mistrial as an extreme remedy requiring manifest, urgent, or real necessity.
  • Commonwealth v. Padgett, 563 S.W.3d 639 (Ky. 2018), supplied the demanding standard for finding an admonition inadequate: an overwhelming probability that jurors cannot follow it and a strong likelihood of devastating prejudice. The passage quoted in this opinion traces to Justice Venters’s dissent in Sneed v. Burress; the court invoked it through Commonwealth v. Padgett. Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004), reinforced deferential review of mistrial rulings.
  • Robinson v. Commonwealth, 647 S.W.3d 136 (Ky. 2022), and Commonwealth v. McGorman, 489 S.W.3d 731 (Ky. 2016), defined prosecutorial misconduct and required examination of overall trial fairness.
  • Leavell v. Commonwealth, 671 S.W.3d 171 (Ky. 2023), citing Duncan v. Commonwealth, 322 S.W.3d 81 (Ky. 2010), recognized improper questioning as a possible form of misconduct. Its reliance on Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004), tied reversal to fundamental unfairness.
  • Baldwin v. Commonwealth, 723 S.W.3d 676 (Ky. 2025), quoting Murphy v. Commonwealth, 509 S.W.3d 34 (Ky. 2017), framed review of objected-to misconduct around the strength of the evidence and the sufficiency of curative admonitions.
  • Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), established the pertinent evidentiary prohibition: subject to limited exceptions, one witness may not opine on another witness’s truthfulness.

Application

K.W. testified that he recognized something was wrong with S.W. because he himself had suffered childhood sexual abuse. After an objection and admonition, he again referred to her having the same look he had as a child. The prosecutor then redirected him to what he actually observed: tears, confusion, and S.W.’s insistence that nothing was wrong.

The court distinguished those volunteered statements from deliberate improper questioning. Their unsolicited character did not make them admissible, but it weakened the claim that the prosecutor had intentionally elicited them to secure an improper conviction.

The prosecutor later asked whether K.W. had any doubt that the allegations were true. That question was improper under Moss v. Commonwealth. Crucially, defense counsel objected before an answer. The judge reminded jurors that they alone determined credibility and directed them to disregard attempts to obtain another witness’s opinion about truthfulness.

Similar concerns arose when the prosecutor asked Detective Ramsey whether he had reason to disbelieve an initial report, and when CPS worker Conrad volunteered that she could tell when a child was lying. Objections prevented the detective’s answer and interrupted Conrad’s statement; the judge sustained the objections and admonished the jury concerning Conrad’s remark. Riley did not separately request a mistrial during those two episodes.

Significance

The court’s reasoning distinguishes an improper question from an unanswered question, an unsolicited remark from a deliberately elicited opinion, and inadmissible content from incurable prejudice. The prohibited credibility opinions did not reach the jury in a completed form sufficient, in the court’s view, to overcome the curative measures.

The result should not be understood as permitting parents, investigators, or child-protection workers to certify a complainant’s truthfulness. It instead reflects the high threshold for abandoning a trial after the judge has sustained objections and addressed the problem.

G. Closing Argument: Attacking a Defense Position Is Different From Attacking Counsel

Precedents cited

Dickerson v. Commonwealth, 485 S.W.3d 310 (Ky. 2016), drawing on Miller v. Commonwealth, required assessment of closing argument as a whole and recognized the substantial latitude afforded advocates. Robinson v. Commonwealth supplied both the misconduct framework and the principle that misconduct may be harmless in the context of overwhelming evidence.

Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987), permitted criticism of defense tactics, evidence, and the falsity of a defense position. The Commonwealth relied on its approval of forceful rhetoric concerning a defense “scam” and an “octopus” defense. The present court nevertheless treated that permission as bounded rather than unlimited.

Application

The prosecutor accused defense counsel of trying to “trick” witnesses concerning when Riley moved into the home and characterized the defense presentation as lies and deception. The timing dispute was material: the instructions concerned offenses in May, while some prior statements supported a July move-in date.

After the initial objection, the judge instructed jurors that lawyers’ statements and questions were not evidence. When personal accusations continued, the judge directed the prosecutor to “quit attacking counsel” and indicated that continued attacks could result in a mistrial. The prosecutor then moved on.

The Supreme Court recognized both parties’ entitlement to argue competing interpretations of the chronology. But it expressly concluded that accusing counsel of deception over reasonably disputed evidence fell outside the protection of Slaughter v. Commonwealth. A prosecutor may challenge an argument’s accuracy without suggesting that counsel acts dishonestly by advancing a supported defense.

An important qualification in the reasoning

The opinion’s terminology is not entirely uniform. It states that the remarks did not amount to prosecutorial misconduct, yet also calls the attacks improper and analyzes them as harmless. The soundest reading is that the court found no reversible misconduct, not that it approved the accusations.

The operative considerations were the closing argument viewed as a whole, the extensive testimony supporting guilt, the instruction distinguishing argument from evidence, and the judge’s successful intervention. The court considered the personal attacks incidental to the prosecution’s broader evidentiary presentation and insufficient to affect the verdict materially.

Riley’s request for dismissal likewise failed. The opinion did not establish a separate dismissal rule; it rejected that remedy on its resolution of the underlying misconduct claim.

H. The Combined Problems Did Not Establish Cumulative Error

Precedents cited

Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010), supplied the cumulative-error framework. This is a different decision from the 2005 Brown v. Commonwealth addressing redirect examination.

The 2010 decision, citing Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992), explained that cumulative reversal generally involves errors that are themselves substantial and approach prejudicial significance. Citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002), it rejected the proposition that several genuinely nonprejudicial matters necessarily combine into prejudice.

Application

The court found no individual error that created a meaningful question of prejudice. The proper rulings therefore added nothing to the cumulative claim, while the improper questions, interrupted remarks, and personal attacks had been sufficiently addressed or were harmless. Their combined effect did not require reversal.

The governing concept is whether individually harmless errors collectively rendered the trial fundamentally unfair. The supplied opinion’s quotation uses “fundamentally fair,” which appears to be a textual error; its surrounding reasoning plainly addresses the absence of cumulative unfairness.

Significance

The analysis does not make cumulative error unavailable whenever individual errors are harmless. That would defeat the doctrine’s purpose. Rather, the court found no substantial interaction among these particular incidents capable of undermining the trial’s overall fairness.

4. Potential Impact

Because the opinion is unpublished, its practical value lies primarily in illustrating existing doctrine. Any permissible future reliance remains subject to RAP 41.

  • Deadlock determinations should be documented. Judges should establish what prevents agreement, what further deliberation might accomplish, and whether supplemental measures have been tried. A developed record matters more than a predetermined minimum number of hours.
  • Defense participation can affect double-jeopardy rights. Counsel who opposes terminating a trial should make that position clear. Statements encouraging termination may independently support consent to retrial.
  • Demeanor-based strikes require specificity. Identifying the precise reaction, its connection to a material issue, and the judge’s observations strengthens review. A bare assertion of intuition remains inadequate protection against pretext.
  • Other-acts evidence requires a factual bridge. Drug activity may explain residence, access, and inadequate supervision, but a general “complete story” argument should not become a license to introduce unrelated misconduct.
  • Curative action can preserve a trial. Prompt objections, unanswered questions, targeted admonitions, and firm judicial intervention can prevent impropriety from becoming reversible prejudice.
  • Harmlessness is not permission. Prosecutors remain prohibited from eliciting improper credibility opinions or accusing defense counsel of dishonesty. Affirmance here depended on context and corrective measures, not the legitimacy of those practices.

The decision is especially relevant to prosecutions involving delayed disclosure, household access, parental addiction, and conflicting recollections of dates. It does not create a relaxed evidentiary regime for those cases: ordinary relevance, nonpropensity reasoning, prejudice balancing, and constitutional jury-selection protections remain essential.

5. Complex Concepts Simplified

Double jeopardy
The constitutional protection against being prosecuted twice for the same offense. A genuinely deadlocked jury may justify ending one trial and beginning another without violating that protection.
Jeopardy “attaches”
The point when the protection becomes operative. In a jury trial, this occurs when the jury is impaneled and sworn.
Manifest necessity
A compelling, real reason to end a trial before a verdict. An irreconcilable jury deadlock is the classic example.
Allen charge
A supplemental instruction encouraging jurors to continue trying to reach agreement. Its use does not establish that every possible further instruction or delay is required.
Peremptory challenge and Batson objection
A peremptory challenge ordinarily permits removal of a prospective juror without proving disqualification. A Batson objection alleges that the challenge was exercised for an unconstitutional racial reason.
Propensity evidence
Evidence offered to suggest that someone committed the charged offense because that person has a bad character or committed other wrongs. KRE 404(b) generally prohibits that inference while allowing properly supported alternative purposes.
Redirect examination
Further questioning by the party who called a witness after cross-examination. It ordinarily addresses matters raised on cross, subject to the judge’s discretion over presentation.
Admonition
A judicial instruction telling jurors how to treat improper material—for example, to disregard it or to decide credibility themselves.
Harmless, palpable, and cumulative error
Harmless error does not justify reversal because it did not sufficiently affect the result. Palpable-error review addresses serious unpreserved defects. Cumulative-error review considers whether several errors together caused unfairness even when each alone would not warrant reversal.

6. Conclusion

Jereme Riley v. Commonwealth of Kentucky affirms the central role of reasoned trial-court discretion. Genuine deadlock justified retrial; a specifically supported demeanor explanation sustained the challenged juror strike; and evidence explaining access to the child was admissible for nonpropensity purposes.

Equally important, the affirmance did not endorse every aspect of the prosecution’s conduct. Improper credibility questions and attacks on counsel remained improper, but the court found them insufficiently prejudicial to require a new trial. The decision’s broader lesson is the importance of separating permissible evidence and advocacy from curable error—and curable error from fundamental unfairness. Its unpublished status limits its authority to the carefully restricted persuasive use Kentucky’s appellate rules permit.