Prima Facie Authentication of Jail Calls and Rejection of Speculative Lesser-Included Instructions in Child-Sex Offense Trials: The Unpublished Clarification in Ronnie Duvall v. Commonwealth of Kentucky

Introduction

This commentary analyzes the Supreme Court of Kentucky’s unpublished memorandum opinion in Ronnie Duvall v. Commonwealth of Kentucky (rendered March 20, 2025), affirming convictions for first-degree rape, first-degree sodomy, and second-degree sodomy arising from the sexual abuse of a minor, J.D. The case turns on four appellate issues: (1) whether a recorded jail call was properly authenticated under KRE 901; (2) whether a mistrial was required after a witness referenced the defendant’s pretrial incarceration; (3) whether the jury should have received lesser-included instructions for second-degree rape and sodomy; and (4) whether cumulative error necessitated reversal.

While the opinion is designated “Not to be Published” under RAP 40(D) and therefore is not binding precedent, it offers clear, practical guidance on evidentiary foundations for jail calls, the stringent threshold for mistrials, when lesser-included instructions tied to a child’s age are warranted, and the limits of the cumulative error doctrine. The parties were the appellant, Ronnie Duvall, and the appellee, the Commonwealth of Kentucky. The Hopkins Circuit Court’s life sentence was affirmed.

Summary of the Opinion

The Supreme Court of Kentucky affirmed the trial court on all four challenged rulings:

Authentication of jail call: The Commonwealth made a prima facie showing of authenticity under KRE 901 through the detective’s testimony that he personally reviewed and preserved the March 2, 2022 jail call. The trial court did not abuse its discretion by admitting the recording, which contained remorseful statements by the caller alleged to be Duvall.
Mistrial request after incarceration reference: A witness’s brief remark that Duvall was “in jail” before trial was curable by admonition. Because the defense declined the court’s offer to admonish, and no manifest necessity for mistrial existed, the denial of a mistrial was not an abuse of discretion.
Lesser-included instructions: The defense sought instructions for second-degree rape and sodomy (victim under 14, defendant 18+) based on a purported date inconsistency that would place the victim over 12 at the time. The Court held that a typographical or corrected error in an officer’s report, standing alone, is speculative and not evidence from which a reasonable juror could convict on the lesser while doubting the greater (which required victim under 12). The trial court correctly declined to instruct on the lesser-included offenses.
Cumulative error: With no discrete errors established, cumulative error did not apply.

Factual Background

J.D., born June 2009, disclosed that Duvall and Brittany (mother of J.D. and partner of Duvall) engaged in sexual acts with her beginning when she was 11. At trial, J.D. testified the first abuse occurred the day after her 11th birthday and described penile-vaginal intercourse and oral sex by Duvall. She also recounted a later incident in a van when she was about 12, where she performed oral sex on Duvall. A recorded police interview of Duvall was played to the jury; he initially denied intercourse but eventually acknowledged having intercourse “once” and later said “probably not even three or four times,” adding that J.D. performed oral sex “maybe twice.”

Brittany pleaded guilty to various offenses but, at Duvall’s trial, attempted to exculpate him while admitting her own sexual acts with J.D. She also acknowledged prior statements to police about “threesomes” involving Duvall and J.D., which she attempted to recant as statements made under pressure.

The Commonwealth introduced a recorded jail call from March 2, 2022, containing remorseful statements by the caller alleged to be Duvall (e.g., “I threw my life away”; “I don’t blame nobody but myself”). Duvall objected on authentication grounds. The trial court admitted the call. The jury found Duvall guilty on all three tried counts and he received a life sentence.

Analysis

Precedents Cited and Their Influence

KRE 901(a), 901(b)(1), (b)(5)-(6): Establishes that authentication is a condition precedent to admissibility and may be satisfied by a prima facie showing. Voice identification and telephone conversation illustrations are non-exclusive methods. The Court relied on the low threshold and the permissive, illustrative nature of 901(b).
Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004): Confirms the “prima facie showing” standard for authentication and the abuse-of-discretion appellate review. The Court leaned on Johnson to emphasize how minimal the Commonwealth’s burden can be at the threshold stage.
United States v. Reilly, 33 F.3d 1396 (3d Cir. 1994) and United States v. Jones, 107 F.3d 1147 (6th Cir. 1997): Federal cases supporting the prima facie authentication concept and abuse-of-discretion review.
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999): Defines abuse of discretion as a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles; used throughout the opinion as the lodestar for appellate deference.
Commonwealth v. Padgett, 563 S.W.3d 639 (Ky. 2018); Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004); Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009); Bray v. Commonwealth, 177 S.W.3d 741 (Ky. 2005): Together, these define the narrow circumstances warranting a mistrial (manifest necessity; used sparingly).
Sherroan v. Commonwealth, 142 S.W.3d 7 (Ky. 2004) and Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003): Articulate the strong presumption that juries follow admonitions, and outline the two narrow exceptions.
Hilton v. Commonwealth, 539 S.W.3d 1 (Ky. 2018); United States v. Aichele, 941 F.2d 761 (9th Cir. 1991); Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005); Kelly v. Commonwealth, No. 2004-SC-000786-MR, 2006 WL 3386636 (Ky. Nov. 22, 2006): Establish that admonitions can effectively address improper references to prior incarceration without requiring a mistrial.
Daniel v. Commonwealth, 607 S.W.3d 626 (Ky. 2020); Sasser v. Commonwealth, 485 S.W.3d 290 (Ky. 2016); Taylor v. Commonwealth, 671 S.W.3d 36 (Ky. 2023); Parker v. Commonwealth, 952 S.W.2d 209 (Ky. 1997): Frame the trial court’s duty to instruct on the “whole law,” including lesser-included offenses supported by the evidence and the standard for when a jury could rationally convict on a lesser while doubting the greater.
Downs v. Commonwealth, 620 S.W.3d 604 (Ky. 2020); Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015); Sutton v. Commonwealth, 627 S.W.3d 836 (Ky. 2021); Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020): Reinforce deference to trial judges on instruction decisions tied to evidence.
Breazeale v. Commonwealth, 600 S.W.3d 682 (Ky. 2020); Lackey v. Commonwealth, 468 S.W.3d 348 (Ky. 2015): Clarify that speculative theories do not justify instructions; there must be competent evidentiary support for the distinguishing element.
Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010); Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012): State the cumulative error rule; multiple substantial errors may cumulatively render a trial unfair, but if individual errors raise no real question of prejudice, cumulative error does not apply.
Statutes: KRS 510.040(1)(b)(2) (first-degree rape, victim under 12); KRS 510.050(1)(a) (second-degree rape, victim under 14, defendant 18+); KRS 510.070(1)(b)(2) (first-degree sodomy, victim under 12); KRS 510.080(1)(a) (second-degree sodomy, victim under 14, defendant 18+); KRS 505.020(2)(a) (lesser-included offense definition). RCr 9.54 (instructions and preservation).

Legal Reasoning

1) Authentication of the Jail Call (KRE 901)

The Court emphasized the modest threshold of KRE 901(a): authentication requires only a prima facie showing that the item is what its proponent claims. The detective’s testimony that he personally reviewed the calls attributed to Duvall from the jail system, identified a particular call on March 2, 2022, and verified that it was preserved, supplied sufficient foundation under KRE 901(b)(1) (testimony of a witness with knowledge). While the Court acknowledged that stronger foundations exist (e.g., voice identification under KRE 901(b)(5), call system records under KRE 901(b)(6), or corroborating metadata), it concluded that the trial court did not abuse its discretion by finding the Commonwealth met the prima facie bar.

Importantly, the Court framed this as an authentication ruling, not a sufficiency-of-evidence or weight-of-evidence determination for the jury. Once a prima facie showing is made, the jury may decide identity and weight. The opinion does not analyze KRE 403 balancing because the defense’s challenge was authentication, not undue prejudice.

2) Denial of a Mistrial After Mention of Pretrial Incarceration

The Court reiterated that mistrials are an “extreme remedy,” reserved for manifest necessity. A brief, unsolicited reference by a witness to pretrial incarceration can be cured by admonition, a proposition well-supported by Kentucky and federal cases. The trial court offered to admonish the jury; the defense declined. The Court held that, because admonitions are presumed effective and the remark was fleeting, there was no “overwhelming probability” the jury could not follow an admonition. The trial court’s refusal to declare a mistrial was therefore within its discretion.

3) Refusal to Instruct on Lesser-Included Offenses

The defense theory hinged on a potential date discrepancy: the victim consistently testified that the first abuse occurred the day after her 11th birthday (June 27, 2020), but the detective’s report mistakenly listed June 27, 2021 (which would make the victim 12 and place the offenses under second-degree statutes). The detective acknowledged the error and corrected it on the stand. The Court held that this typo-cum-correction is not substantive evidence from which a reasonable juror could find the age element of the lesser-included offenses while harboring reasonable doubt on the greater offenses requiring victim under 12.

Citing Breazeale and Lackey, the Court reiterated that trial courts need not (and should not) instruct on speculative theories. Because there was no competent conflicting evidence of the victim’s age at the critical time—only an acknowledged error in a report—the lesser-included instructions were properly denied.

4) Cumulative Error

Because no individual error was found, the cumulative error doctrine did not apply. Even if some challenged events were assumed arguendo to be harmless errors, they were neither substantial nor aggregative in a way that rendered the trial fundamentally unfair under Brown and Elery.

Impact and Practical Implications

Although unpublished, the decision offers several practical guideposts for Kentucky trial practice:

Authentication of jail calls remains a low hurdle: A single officer’s testimony of personal review and preservation can suffice to cross KRE 901’s prima facie threshold. While best practice for prosecutors remains to add corroborating features (call logs, system records, PIN usage, voice familiarity comparisons), this case underscores the deference appellate courts give to trial judges on authentication decisions.
Admonition over mistrial for incarceration references: Short, unsolicited mentions that a defendant is “in jail” are generally curable with an admonition. Defense counsel should strongly consider accepting an admonition to preserve and mitigate prejudice; declining can undercut a later mistrial claim.
Speculation does not warrant lesser-included instructions: When the age of a minor victim is the dividing element between degrees, trial courts require concrete evidence that supports the lesser-included theory. A clerical error in a report, corrected at trial, is insufficient. Defense counsel seeking lesser-included instructions should adduce affirmative, reliable evidence that could permit the jury to find the victim’s age at the time consistent with the lesser offense (e.g., independent records, timeline evidence, testimony establishing dates).
Cumulative error remains a high bar: Without multiple substantial errors raising real questions of prejudice, the doctrine does not provide relief.

For bench and bar, the opinion signals continued adherence to:

Abuse-of-discretion review as a powerful, deferential standard across authentication, mistrial, and instructional rulings.
RAP 40(D) limits: As an unpublished opinion, it is not binding precedent and should be cited, if at all, only as permitted where no published opinion adequately addresses the issue, with the required tendering of the full decision.

Complex Concepts Simplified

Prima facie authentication (KRE 901): The proponent must present enough evidence for a reasonable juror to believe the item is what it is claimed to be. It is a low threshold. Once met, the opponent can still argue the item is not genuine; that goes to weight, not admissibility.
Abuse of discretion: An appellate court will not overturn a trial court’s ruling unless it was arbitrary, unreasonable, unfair, or contrary to legal principles. This gives trial judges wide latitude in evidentiary and instructional rulings.
Admonition: A curative instruction directing the jury to disregard improper testimony. Courts presume juries follow admonitions, and that presumption is hard to overcome.
Manifest necessity for mistrial: A mistrial is reserved for urgent circumstances where no other remedy can ensure a fair trial. If an admonition can cure the prejudice, a mistrial is generally inappropriate.
Lesser-included offense: A crime that can be established by proof of the same or fewer facts than the charged offense. A jury should be instructed on a lesser-included only if the evidence would allow them to reasonably acquit on the greater while convicting on the lesser.
Age-graded sex offenses in Kentucky: First-degree rape/sodomy includes sexual intercourse or deviate sexual intercourse with a person under 12. Second-degree involves a defendant 18 or older with a victim under 14. Thus, the age element is the key differentiator that may justify or defeat lesser-included instructions.
Cumulative error: Multiple minor errors, each harmless alone, might cumulatively render a trial unfair. But the errors must be substantial and create real prejudice; absent individual errors, there is no cumulative error.

Conclusion

In affirming Duvall’s convictions, the Supreme Court of Kentucky (in an unpublished memorandum) clarified four recurring trial issues:

Jail calls can be authenticated under KRE 901 by modest testimony from an officer with personal knowledge, satisfying the prima facie threshold.
Brief, unelicited references to pretrial incarceration are generally curable by admonition; mistrials are exceptional and were not warranted here.
Lesser-included instructions keyed to the age of a minor victim require concrete evidentiary support; an acknowledged clerical error does not justify placing a speculative theory before the jury.
Cumulative error is inapplicable absent discrete errors raising real prejudice.

Although not binding precedent under RAP 40(D), the opinion reinforces Kentucky’s deferential appellate posture toward trial courts on evidentiary authentication, mistrial decisions, and jury instructions, and it offers pragmatic lessons for litigants in cases where age elements delineate degrees of sexual offenses against minors. The core takeaway is a suite of evidentiary and instructional guardrails: a low bar for authentication, a high bar for mistrials, a demand for non-speculative evidentiary bases for lesser-includeds, and a constrained view of cumulative error.

Notice on citation: This opinion is “Not to be Published” under RAP 40(D) and may not be cited as binding authority. Unpublished Kentucky appellate decisions rendered after January 1, 2003, may be cited only for consideration when no published opinion adequately addresses the issue, and must be tendered in full to the court and parties.