KRE 412 Hearings Must Include All Co‑Defendants: Kentucky Supreme Court Affirms Convictions and Clarifies Translation, Bruton, and Record‑Supplement Rules

Case: Isabel Tzunux‑Zacarias v. Commonwealth of Kentucky; Mario Tzunux‑Zacarias v. Commonwealth of Kentucky

Court: Supreme Court of Kentucky

Date: October 23, 2025

Disposition: Affirmed

Publication status: Not to be published (RAP 40(D))

Introduction

This memorandum opinion arises from a joint trial of brothers Isabel and Mario Tzunux‑Zacarias on charges stemming from a November 2020 home invasion and sexual assault in Hardin County, Kentucky. A jury convicted both of complicity to first‑degree rape, complicity to first‑degree burglary, and complicity to kidnapping, and acquitted them of sodomy. Each received a 30‑year sentence.

On appeal, the Kentucky Supreme Court confronted a broad set of evidentiary, constitutional, and procedural issues frequently encountered in complex, multi‑defendant prosecutions. The Court’s analysis clarifies several practical points of trial and appellate practice, including:

How appellate courts should use narrative statements to supplement an incomplete trial record under RAP 25;
Confrontation Clause limits (Bruton/Gray/Richardson/Samia) for non‑testifying codefendants’ statements and the necessity of a limiting instruction upon request—even when statements are properly redacted;
When a detective’s summary of defendants’ statements is permissible and does not trigger the rule of completeness or the “no‐interpretation‑of‐recordings” rule;
Whether translated text messages require the translator’s in‑court testimony and how the “language‑conduit” doctrine applies to written translations, with a significant concurrence urging a narrower approach;
The scope and operation of the rape‑shield rule (KRE 412), including a clear directive that in joint trials “all co‑defendants are ‘parties’ entitled to attend and be heard” at KRE 412 hearings;
Rule of completeness (KRE 106) applied to post‑attack text messages and harmless error analysis;
Miranda warnings and waivers for non‑native English speakers using translated advisements displayed on an officer’s phone;
Cause challenges during voir dire involving jurors with prior exposure to sexual assault; and
Directed‑verdict standards for rape, burglary, and kidnapping, including the “incidental restraint” limitation in KRS 509.050.

Although designated “not to be published,” the opinion offers detailed guidance. Under RAP 40(D), such decisions rendered after January 1, 2003 may be cited for consideration when no published opinion adequately addresses the issue, provided the decision is tendered to the court and all parties.

Summary of the Opinion

The Supreme Court of Kentucky affirmed the convictions and sentences of Isabel and Mario Tzunux‑Zacarias. Notable rulings include:

Record supplementation (RAP 25): The Court approved the trial court’s use of a settled and approved narrative statement to supplement partially inaudible bench conferences and reiterated that any remaining gaps are construed to support the trial court’s rulings.
Bruton/Samia: The admission of each brother’s own statement (redacted to eliminate reference to the other) did not violate the Confrontation Clause. However, because both requested a limiting instruction, the trial court erred by not giving one; the error was harmless given the mirror‑image admissions and other evidence.
Detective’s summaries: The detective’s testimony summarizing each defendant’s own statements was permissible; it did not mislead, violate KRE 106’s rule of completeness, or contravene the prohibition on witnesses “interpreting” recordings.
Translated text messages: Admitting translations by a non‑testifying officer did not violate hearsay rules or the Confrontation Clause under Kentucky’s “language‑conduit” approach where the defense offered no proof of material inaccuracy. A separate concurrence would limit the conduit theory to contemporaneous oral interpretation and require a qualified translation witness for written translations.
KRE 412: The trial court properly excluded alleged prior consensual sexual activity as minimally probative and substantially prejudicial under KRE 403, despite the consent exception in KRE 412(b)(1)(B). Critically, the Court held it was error to exclude a co‑defendant and his counsel from the KRE 412 hearing because “parties” in KRE 412(c)(2) includes all co‑defendants in a joint trial. The error was harmless.
Threatening texts and KRE 106: Mario’s post‑attack threat was admissible against him as a party admission but was hearsay as to Isabel. The trial court erred by not admitting subsequent messages under KRE 106. Both errors were harmless given overwhelming evidence.
Miranda/translation: Suppression was correctly denied. Both defendants received Miranda warnings in English and were shown Spanish‑language warnings on a phone, indicated understanding, and signed waivers; no evidence undermined the adequacy of the warnings or the knowing/voluntary nature of the waivers.
Juror strike: No abuse of discretion in refusing to strike a juror with past indirect exposure to sexual assault and a prior attorney‑client relationship with defense counsel; answers did not establish actual bias.
SANE nurse testimony: It was permissible for the SANE to opine that injuries like the victim’s were “not probable” from consensual sex, particularly after the defense opened the door; this falls within accepted “consistent with” medical causation opinion testimony.
Directed verdicts: Properly denied. Lack of victim testimony does not preclude conviction; circumstantial evidence sufficed. Kidnapping was not barred by KRS 509.050 because the restraint (including blindfolding/binding during the offense and taping the legs afterwards) exceeded what is ordinarily incidental to rape.

Analysis

Precedents Cited and Their Influence

Confrontation Clause and codefendant statements:
- Bruton v. United States, 391 U.S. 123 (1968) and Gray v. Maryland, 523 U.S. 185 (1998) prohibit admission of a non‑testifying codefendant’s statement that facially or effectively names the other defendant;
- Richardson v. Marsh, 481 U.S. 200 (1987) allows admission of a redacted statement that eliminates reference to the co‑defendant, with a proper limiting instruction;
- Samia v. United States, 599 U.S. 635 (2023) confirms that admission of neutral, non‑inculpatory portions with a limiting instruction is permissible;
- Kentucky has emphasized the limiting‑instruction requirement upon request, even when redaction eliminates co‑defendant references: Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011); strategic non‑request may waive: Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003).
Confrontation Clause baseline: Crawford v. Washington, 541 U.S. 36 (2004) teaches testimonial statements require unavailability and a prior opportunity to cross‑examine.
Language‑conduit/translations: Kentucky relies on Lopez v. Commonwealth, 459 S.W.3d 867 (Ky. 2015) to treat interpreters as conduits rather than witnesses for hearsay purposes, and cites State v. Lopez‑Ramos, 929 N.W.2d 414 (Minn. 2019) to support a similar view under the Confrontation Clause. A concurrence points to an ongoing split (e.g., United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012); United States v. Charles, 722 F.3d 1319 (11th Cir. 2013)) and urges a narrower application.
Completeness and testimonial interpretation: KRE 106 and cases such as Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006) and Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009) limit completeness to material necessary to avoid misleading impressions; Gordon v. Commonwealth, 916 S.W.2d 176 (Ky. 1995) bars a witness from “interpreting” a recording for a jury but allows testimony from recollection of what was said.
Rape shield: KRE 412 shows an “obvious tilt toward exclusion” (Commonwealth v. Dunn, 899 S.W.2d 492 (Ky. 1995)), with exceptions used “sparingly and carefully” (Powers v. Commonwealth, 626 S.W.3d 563 (Ky. 2021); Violett v. Commonwealth, 907 S.W.2d 773 (Ky. 1995)). Evidence must still pass KRE 403 balancing; prior consensual acts rarely prove consent at the charged event (Mayo v. Commonwealth, 322 S.W.3d 41 (Ky. 2010)).
Record supplementation: RAP 25 permits settled narrative statements to supplement or replace an insufficient record; when the record is incomplete, appellate courts assume it supports the trial court (Commonwealth v. Thompson, 697 S.W.2d 143 (Ky. 1985); King v. Commonwealth, 384 S.W.3d 193 (Ky. App. 2012)).
Harmless error tests: For constitutional errors, the question is whether there is a reasonable possibility the error contributed to the verdict (Staples v. Commonwealth, 454 S.W.3d 803 (Ky. 2014); Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998)). For non‑constitutional evidentiary errors, whether the judgment was substantially swayed (Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009); Kotteakos v. United States, 328 U.S. 750 (1946)).
Miranda/waiver: Miranda v. Arizona, 384 U.S. 436 (1966); voluntariness and knowing, intelligent waiver under totality of circumstances (Moran v. Burbine, 475 U.S. 412 (1986)); independent review of waiver validity (Dillon v. Commonwealth, 475 S.W.3d 1 (Ky. 2015); Mincey v. Arizona, 437 U.S. 385 (1978)). Standards of review: facts (clear error), law (de novo) (Cox v. Commonwealth, 641 S.W.3d 101 (Ky. 2022)).
Juror bias and cause strikes: RCr 9.36(1); standards in Walker v. Commonwealth, 288 S.W.3d 729 (Ky. 2009), Fugett v. Commonwealth, 250 S.W.3d 604 (Ky. 2008); prior victimization and similarity factors (Little v. Commonwealth, 422 S.W.3d 238 (Ky. 2013); Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010)); preservation via peremptory exhaustion protocol (Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019)). Prior professional relationship law distinguished (Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999)).
SANE causation testimony: Medical opinions expressing whether injuries are “consistent with” or “probable” given a factual scenario are permissible (Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)); curative admissibility permits response when the defense opens the door (Norris v. Commonwealth, 89 S.W.3d 411 (Ky. 2002)).
Directed verdict: Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) standard; circumstantial evidence suffices (Southworth v. Commonwealth, 435 S.W.3d 32 (Ky. 2014)). Kidnapping incidental restraint exception (KRS 509.050) applied to duct taping and blindfolding exceeding force incident to rape.

Legal Reasoning

1) Incomplete Record: A Three‑Step Appellate Framework

The Court sets out a practical sequence for handling an imperfect trial record under RAP 25:

Use the original record where comprehensible;
Supplement with the settled and approved narrative statement for the incomprehensible portions;
If ambiguity remains after both, presume the missing/unclear material supports the trial court (Thompson).

This structured approach aligns with RAP 25(A) and preserves the presumption of regularity when gaps cannot be cured.

2) Bruton and Limiting Instructions: Error, But Harmless

Although both statements were redacted to each speaker’s actions and contained no facial or implicit reference to the other (avoiding Bruton/Gray issues), Quisenberry requires a limiting instruction upon request. The trial court did not give one, which was error. Harmlessness turned on the fact that each brother’s account overlapped on the core facts—entry through an unlocked door, duct tape, holding the victim down, both having sex—so the absence of an instruction reasonably could not have contributed to the verdicts.

3) Detective Summaries: No Misleading, No Completeness Violation

The detective’s testimony about Isabel’s responses—interpreting “okay, yeah” to questions about consent—was one fair reading of the exchange; defense cross‑examination presented the competing view. Similarly, the “they were going to use the card” versus “he was going to use the card” nuance did not mislead; the detective’s wording choice was driven by Bruton‑safe redaction. KRE 106 did not require playing an entire recording because the summaries were not materially misleading. Nor did Gordon bar this testimony: the detective did not purport to interpret a recording; he testified to his recollection.

4) Translated Text Messages: Majority Applies Lopez Conduit; Concurrence Urges Limits

The Court held that admitting the translated text messages did not violate hearsay rules or the Confrontation Clause because the translator acted as a “mere conduit,” and the defense offered no proof of material inaccuracies. The majority relied on Lopez (treating interpreters as conduits), and found persuasive Lopez‑Ramos (Minnesota) that interpreters are not “witnesses” under Crawford’s testimonial framework.

Justice Nickell, joined by two justices, concurred in the result but would limit the conduit theory to contemporaneous interpretation of oral statements. For non‑contemporaneous translations of written materials (like text messages), he would:

Decline to deem the author the declarant of the English translation without a qualified witness;
Require a qualified translator at trial (or a stipulated translation), akin to transcript practice for recordings;
Use the widely adopted four‑factor test (e.g., Nazemian) to determine conduit status when applicable.

Even under his approach, the error would be harmless for lack of demonstrated inaccuracies and overwhelming evidence.

5) KRE 412: Tilt Toward Exclusion; All Co‑Defendants Are “Parties” at the Hearing

The defense proffer was bare assertions of prior consensual sex—sometimes involving restraints—and of prior access to the apartment. The trial court excluded the evidence under KRE 412 and, critically, KRE 403 because its probative value on consent was minimal (see Mayo) and risked substantial prejudice and embarrassment to the victim, consistent with KRE 412’s protective purpose.

Procedurally, the Court held the trial court erred by excluding a co‑defendant from the KRE 412 hearing: KRE 412(c)(2) grants “the victim and parties a right to attend and be heard,” and in a joint trial “parties” includes all co‑defendants, even if they have separate case numbers. The error was harmless because the same exclusion ruling would have ensued.

6) Threatening Texts and Completeness

Mario’s threat (“if something happens to me, I’ll kill you”) was admissible against him as a party admission, but hearsay as to Isabel; admission against Isabel was error. The trial court also erred under KRE 106 by refusing to admit subsequent messages (“I’ve done nothing to you”/“I know”), which could meaningfully alter the jury’s understanding of the threat. Both errors were harmless given the context (used to explain absence, not guilt) and the strength of the balance of the Commonwealth’s proof.

7) Miranda for Non‑Native English Speakers

On suppression, the Court credited testimony that both brothers received English‑language warnings, reviewed Spanish‑language warnings displayed on a phone, indicated understanding, and signed waivers. Absent any proof undermining the adequacy of the Spanish advisements or the defendants’ comprehension, the waivers were knowing and intelligent under the totality of the circumstances.

8) Juror 149: No Abuse of Discretion

The juror’s personal connections to sexual assault victims and prior use of defense counsel in a divorce did not, without more, establish bias. His equivocal statements (uncertainty about penalties, anxiety) did not show he could not be fair when viewed in context. The trial court’s refusal to strike for cause was within its discretion.

9) SANE Nurse Testimony

The SANE nurse’s opinion that the injuries were “not probable” from consensual sex was proper “consistent with” medical causation testimony under Stringer and, in any event, was invited by the defense’s questioning. The trial court’s pretrial limitation (no ultimate‑issue guilt opinions) was respected.

10) Directed Verdicts and Kidnapping

The absence of victim testimony did not mandate acquittal; circumstantial evidence (texts about entry and restraints, statements acknowledging holding the victim down and sex, duct tape, injuries, post‑offense concealment) was ample under Benham. For kidnapping, the restraints—blindfolding and taping during the offense plus taping the legs afterward—exceeded what is ordinarily incidental to rape, placing the case outside KRS 509.050’s incidental‑restraint carve‑out.

Impact and Practical Implications

Key Takeaways for Future Cases

KRE 412 hearing participation (new, clear directive): In joint trials, all co‑defendants are “parties” under KRE 412(c)(2) and are entitled to attend and be heard at rape‑shield hearings. Trial courts should not exclude a co‑defendant or counsel simply because only one defendant filed the motion.
Record supplementation protocol: Counsel should proactively seek settled narrative statements when recordings are inaudible. On appeal, expect a hierarchy: original record, then narrative supplement, then presumption in favor of the trial court if uncertainty persists.
Bruton/Samia compliance and limiting instructions: Prosecutors in joint trials should:
- Redact confessions to eliminate references to the co‑defendant’s existence;
- Offer limiting instructions upon request (and ideally propose them proactively) to ensure compliance with Richardson/Quisenberry.
Detective summaries: Where recordings themselves are not played, careful, neutral summaries that fairly reflect the speaker’s own conduct are permissible. Defense should cross‑examine to explore ambiguous language or tone.
Translated digital evidence—diverging views:
- Majority path: Kentucky remains receptive to the language‑conduit theory for translations (even of written texts) absent a showing of material inaccuracy. A translator’s live testimony is not automatically required for Confrontation Clause purposes.
- Concurrence caution: For written translations, best practice is to present a qualified translation witness (or stipulate to a translation), akin to transcript practice for recordings, and be prepared to address conduit factors. Counsel should be ready with their own translations if accuracy is disputed.
Rule of completeness: When introducing snippets of text messages that can carry multiple meanings (such as threats), courts should admit contextually necessary follow‑on messages to prevent misleading impressions. Litigants should specifically identify the segments needed to cure any misimpression.
Miranda and language access: Officers should preserve the exact foreign‑language advisement shown to a suspect (e.g., capture and file the PDF/screen). Defense challenges to the knowing and intelligent nature of waivers should marshal concrete evidence of language deficits or flawed translations.
Voir dire: Past exposure to similar crimes does not, standing alone, disqualify a juror. Counsel should probe for actual bias and inability to follow the law, and ensure preservation via the peremptory‑exhaustion method if a cause strike is denied.
SANE testimony boundaries: Trained examiners may opine on the probability of injuries occurring in consensual encounters as causation assistance; defense should anticipate “consistent with/not probable” opinions if they raise the consent‑injury nexus.
Kidnapping overlay: KRS 509.050’s “incidental restraint” limitation is inapplicable when the victim is blindfolded/bound beyond what is ordinarily necessary to accomplish the predicate offense, particularly where restraint continues or is added after the offense.

Complex Concepts Simplified

Bruton problem: In a joint trial, you cannot admit a non‑testifying defendant’s confession that names the co‑defendant, because the co‑defendant cannot cross‑examine. Redaction plus a limiting instruction can solve this in many cases.
Language‑conduit doctrine: If a translator is merely conveying what a speaker said, courts may treat the translated statement as the speaker’s own words rather than the translator’s. The concurrence warns this should be used cautiously, especially for written materials, and recommends a qualified translator’s testimony or stipulation.
KRE 412 (rape‑shield): The rule generally bars evidence of a victim’s other sexual behavior. A narrow exception allows specific prior sexual behavior with the accused to prove consent, but only if it passes ordinary admissibility (especially KRE 403). Courts apply a strong presumption against admission.
KRE 106 (completeness): If one side introduces part of a statement or writing, the other side can require introducing other portions necessary to avoid a misleading impression.
Miranda waiver (knowing and intelligent): The question is whether the suspect understood the rights and the consequences of waiving them, considering language, age, experience, and the way the warnings were conveyed.
Directed verdict in criminal cases: The judge asks whether a reasonable juror could find guilt beyond a reasonable doubt, assuming the Commonwealth’s evidence is true and drawing reasonable inferences in its favor.
Kidnapping incidental restraint: If the restraint of the victim is no more than what is ordinarily necessary to commit another crime (like robbery or rape), a separate kidnapping conviction may be barred. But additional or prolonged restraint beyond what is necessary permits a kidnapping conviction.

Conclusion

Even as a non‑published decision, this opinion provides important guidance on several recurring trial and appellate issues. Most notably, it squarely holds that all co‑defendants in a joint trial are “parties” entitled to attend and be heard at KRE 412 hearings. It also supplies a clear, stepwise method for appellate courts to address partially inaudible records and reaffirms that, upon request, limiting instructions are required for Bruton‑compliant codefendant statements—even when redactions eliminate co‑defendant references—while recognizing harmlessness where admissions overlap and the evidence is overwhelming.

On translated evidence, the majority adheres to Kentucky’s language‑conduit approach, while a thoughtful concurrence urges a narrower, translation‑as‑transcript model for written communications and recommends presenting a qualified translation witness at trial. Practitioners should heed that caution, especially as courts nationwide continue to develop doctrine at the intersection of translation, hearsay, and confrontation.

Finally, the opinion underscores long‑standing principles: KRE 412’s strong preference against admitting a victim’s other sexual behavior; the propriety of “consistent with/not probable” medical causation testimony; the sufficiency of circumstantial evidence; and the limits of the “incidental restraint” defense to kidnapping when the restraint meaningfully exceeds what is ordinarily necessary to commit the predicate offense. Taken together, these rulings offer a practical roadmap for handling multilingual defendants and digital communications, preserving and supplementing the record, managing joint trials, and litigating complex evidentiary questions in serious felony prosecutions.