Separate Sexual Acts Support Multiple Convictions, and Informal Family Authority Can Support First-Degree Sexual Abuse

1. Introduction and Background

The decision addresses three recurring questions in sexual-offense prosecutions: when improperly admitted reports of an assault justify reversal despite the absence of an objection; when several sexual acts during one encounter support separate convictions; and when an informal family relationship places an adult in a position of authority or special trust over a minor.

Anthony Michael McDowell was convicted by a Washington Circuit Court jury of first-degree rape and three counts of first-degree sexual abuse. The jury acquitted him of first-degree sodomy. The trial court imposed the recommended aggregate sentence of 35 years, and McDowell appealed as a matter of right under Section 110(2)(b) of the Kentucky Constitution.

The Relationship and Alleged Conduct

S.G., who was seventeen, occasionally stayed at the home of her former boyfriend Kyle, with whom she had a child. McDowell, Kyle’s step-grandfather, also lived there. S.G. testified that she regarded McDowell as her child’s grandfather, respected him, and trusted him in that familial role. She sometimes performed household chores when asked.

On the night in question, S.G. was lying on a couch after preparing herself and her child for sleep. According to her testimony, McDowell repeatedly approached her, proposed sexual activity, touched her, and later engaged in oral contact and sexual intercourse without her consent. She testified that she pushed him away during an earlier approach and later told him to stop, but could not get up because he was on top of her.

The Corroborating and Contested Evidence

• Medical and forensic evidence: A sexual-assault examination documented tenderness, abrasions, and vaginal redness. Testing detected McDowell’s DNA in vaginal and external-genital swabs.
• Security recordings: Cameras showed McDowell repeatedly approaching S.G., reaching beneath her blanket, and seeking proximity while she turned away. They also showed him turning off the cameras shortly before the later alleged assault. The recordings did not capture the intercourse itself.
• McDowell’s account: He initially disputed the DNA results but subsequently acknowledged possible sexual activity, maintaining that it was consensual.
• The Facebook message: McDowell claimed he had instructed S.G. to send a thumbs-up message if she wanted sex. Records showed such a message approximately twenty minutes before the cameras were switched off, followed by his reply, “what?” S.G. testified that she sent it accidentally while attempting to contact someone for help.

The central dispute concerning the rape charge was therefore not simply whether sexual contact occurred, but whether the charged intercourse occurred through forcible compulsion rather than consent.

2. Summary of the Opinion

All participating justices concurred. Justice Conley, joined by Justice Thompson, separately emphasized that the challenged hearsay statements were brief and insufficiently prejudicial to establish manifest injustice regardless of the other supporting evidence.

3. Analysis: Erroneous Hearsay Did Not Require Reversal

A. The Court Identified an Actual Evidentiary Error

Trooper Mattingly recounted Kyle’s statement that S.G. had reported sexual propositions by McDowell. McDowell’s wife, Kathy, also testified that S.G. told her he had raped her. These accounts repeated out-of-court assertions offered to establish their truth.

KRE 801(c) defines hearsay, while KRE 802 generally excludes it unless an exception applies. The court concluded that the challenged testimony was inadmissible. Importantly, it did not create a general exception allowing relatives or police officers to repeat a sexual-assault complainant’s allegations.

B. Precedents Governing Admissibility and Review

Williams v. Commonwealth, 706 S.W.3d 177, 184 (Ky. 2024), and Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021)

These decisions supplied the demanding palpable-error framework. The court asks whether, considering the whole case, there is a substantial possibility of a different result. An error must be plain and seriously affect the fairness of the proceeding; relief further requires manifest injustice. The standard protects against egregious unfairness, rather than providing ordinary appellate correction of every unobjected-to mistake.

Stephens v. Commonwealth, 680 S.W.3d 887 (Ky. 2023)

This decision established that no general hearsay exception permits friends, parental figures, guardians, or law-enforcement personnel to repeat a sexual-assault victim’s prior statements. It supported the finding of evidentiary error. Its reversal analysis also supplied a contrast: repeated allegations can be especially damaging where the prosecution depends entirely on the complainant’s account.

Riggle v. Commonwealth, 686 S.W.3d 105, 114 (Ky. 2023)

The court cited this decision when acknowledging that KRE 801A(a)(2) can permit qualifying prior statements in response to a claim of recent fabrication or improper motive. Neither the record nor the Commonwealth’s argument established that basis here. The exception’s existence therefore did not rescue the challenged testimony.

C. Why Earlier Hearsay Reversals Did Not Control

McDowell relied on Stephens v. Commonwealth, Alford v. Commonwealth, 338 S.W.3d 240 (Ky. 2011), Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011), and Chavies v. Commonwealth, 374 S.W.3d 313 (Ky. 2012). The court distinguished all four because they lacked physical evidence directly supporting the alleged unlawful sexual contact.

As the opinion explained, those cases presented a heightened risk of improper credibility bolstering: additional witnesses repeating the complainant’s accusations could make a single source appear independently corroborated. Alford v. Commonwealth particularly illustrated the danger of extensive hearsay where the complainant’s credibility was crucial and physical evidence was absent. Hoff v. Commonwealth and Chavies v. Commonwealth likewise supported the significance of that evidentiary setting.

Here, however, the recordings independently depicted McDowell’s repeated approaches, S.G.’s turning away, his reaching beneath her blanket, and his disabling the cameras. The majority regarded this combination as strong circumstantial evidence supporting S.G.’s account of nonconsensual conduct.

The court carefully differentiated the DNA evidence’s role. DNA corroborated sexual contact, but did not directly establish whether that contact was consensual. The recordings, rather than DNA alone, were central to distinguishing the earlier reversals.

D. The Holding’s Proper Limits

The majority concluded that excluding the hearsay would not have created a substantial possibility of a different outcome. It also found no error so damaging to the proceeding’s fairness or integrity as to constitute manifest injustice.

This is not a rule that physical evidence automatically cures hearsay error. The relevance and strength of that evidence matter. Evidence proving an admitted sexual encounter may contribute little to resolving a contested issue of force or consent. The majority instead relied on recordings it considered probative of the particular dispute before the jury.

Nor should the opinion be read as generally equating lack of consent with every statutory requirement of first-degree rape. The charged theory under KRS 510.040(1)(a) required forcible compulsion. The court treated the recordings and surrounding circumstances as supporting the jury’s conclusion on that theory; it did not separately redefine forcible compulsion.

E. The Concurrence’s Additional Rationale

Justice Conley stressed the limited extent of the challenged statements, offering a rationale that did not depend on the strength of the other evidence:

• Commonwealth v. Mitchell, 165 S.W.3d 129, 134 (Ky. 2005), supported the conclusion that hearsay insufficiently persistent or prejudicial does not create manifest injustice.
• Roach v. Commonwealth, 313 S.W.3d 101, 110 (Ky. 2010), supported treating an isolated hearsay statement as insufficient to establish palpable error.

The concurrence thus highlights two distinct considerations in assessing prejudice: the strength of independent evidence and the volume and character of the inadmissible repetition.

4. Analysis: Distinct Sexual Acts and Double Jeopardy

A. One Encounter Does Not Necessarily Mean One Offense

The Fifth Amendment and Section 13 of the Kentucky Constitution prohibit double jeopardy for the same offense. McDowell argued that a sexual-abuse conviction for touching S.G.’s vagina duplicated the touching necessarily involved in the separately charged oral contact and intercourse.

The court rejected that argument because the testimony described separate acts, not merely different labels for one act. Its inquiry focused on whether the touching was incidental to another charged act or independently undertaken for sexual gratification.

B. Precedents Supporting Separate Convictions

Hampton v. Commonwealth, 666 S.W.2d 737, 739 (Ky. 1984)

This case involved reciprocal oral sexual acts occurring simultaneously or nearly simultaneously. The court upheld separate sodomy and sexual-abuse convictions because the sexual-abuse charge rested on a distinct act of sexual gratification, not incidental contact. Timing alone did not merge the offenses. That principle directly answered McDowell’s contention that acts within one assault necessarily overlap for double-jeopardy purposes.

Banks v. Commonwealth, 313 S.W.3d 567, 575–76 (Ky. 2010)

The court had upheld separate convictions for sodomy and preceding rubbing or touching during a single assault. It demonstrated that preliminary sexual touching can constitute an independent offense rather than an inseparable component of the later act.

Benet v. Commonwealth, 253 S.W.3d 528, 536 (Ky. 2008)

Touching a victim’s genitals through clothing was treated as an entirely separate act from oral sodomy. The decision reinforced the conduct-specific distinction between an independently completed sexual touching and contact inherent in another offense.

C. Application to the Evidence

S.G.’s account distinguished manual genital touching, later oral contact, and intercourse. Her testimony described changes in conduct and intervening departures and returns. McDowell’s preceding comments and actions also supported the inference that each act served sexual gratification.

The court found nothing suggesting that the separately charged touching was merely incidental to the oral contact or penetration. The fact that the acts involved the same part of the body did not make them the same criminal act.

D. Why the Instructions Were Sufficiently Distinct

McDowell also argued that the instruction requiring “touching” could have allowed the jury to reuse the contact involved in the other offenses. The court relied on Towe v. Commonwealth, 617 S.W.3d 355 (Ky. 2021).

In that case, one instruction required touching the defendant’s penis, while another required placing it in the victim’s mouth. Although the broader instruction could linguistically encompass the more specific act, the court held that the instructions sufficiently differentiated the conduct. It acknowledged that identifying the body part used for touching would have made appellate review clearer, but did not require reversal.

Applying that reasoning, the court found adequate differentiation among “touching,” “licking,” and “sexual intercourse,” particularly when read against S.G.’s testimony describing three separate acts.

The lesson is narrower than a general endorsement of overlapping instructions. Distinct evidence and sufficiently differentiated instructions worked together. More explicit descriptions of each charged act would remain useful in avoiding uncertainty about whether a jury punished the same conduct twice.

5. Analysis: Informal Family Relationships and Authority over a Minor

A. The Statutory Framework

KRS 510.110(1)(d) criminalizes sexual contact with a person under eighteen when the defendant occupies a position of authority or special trust and comes into contact with the minor through that position.

KRS 532.045 provides the relevant definitions:

• Position of authority: Includes specified roles, such as a household member, but the statutory list is expressly nonexclusive.
• Position of special trust: A position occupied by someone in authority who, because of that position, can exercise undue influence over the minor.

The definitions are related but not interchangeable: special trust expressly involves the capacity for undue influence arising from an authoritative position. The statute’s nonexclusive language nevertheless prevents the listed relationships from becoming an exhaustive checklist.

B. Review of the Instructional Decision

Unlike his first two claims, McDowell preserved this challenge by objecting to the instructions under RCr 9.54(2).

Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018), supplied abuse-of-discretion review for the decision to give an allegedly unwarranted instruction. Under Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011), the evidence is viewed favorably to the instruction’s proponent, asking whether a reasonable juror could make the authorized finding.

The appellate question was therefore whether sufficient evidence justified submitting this theory to the jury—not whether the Supreme Court would independently characterize every aspect of the relationship in the same way.

C. Precedents Informing the Relationship-Based Inquiry

Dep't for Cmty. Based Servs. v. Baker, 613 S.W.3d 1, 5–6 (Ky. 2020)

The court relied on this decision for interpreting authority and special trust through both the statutory definitions and the terms’ common-sense meaning. It supported attention to the relationship’s practical operation, rather than formal labels alone.

Stinson v. Commonwealth, 396 S.W.3d 900, 905–06 (Ky. 2013)

This decision explained the statute’s protective rationale: certain relationships carry probable coercion that can disable a minor’s resistance. Undue influence or coercion is inherent in the relationships contemplated by the statute. The present opinion used that reasoning to connect the statutory categories with the adult’s practical capacity to exploit a minor’s dependence or trust.

D. Why McDowell’s Relationship with S.G. Was Sufficient

The court assessed the circumstances cumulatively:

• S.G. regarded McDowell as an elder and a grandfather figure for her child.
• She trusted him and wanted to cultivate a family relationship for her child.
• She occasionally stayed in his home and performed chores there.
• As a teenage mother seeking care and family stability for her child, she occupied a vulnerable position.
• McDowell’s combined status as an adult householder and trusted quasi-family member placed him in a position to exploit that vulnerability.

These circumstances permitted a reasonable jury to find authority or special trust even though S.G. and McDowell were not related by blood or marriage. The court did not need to establish that occasional overnight stays invariably make someone a household member. Its reasoning rested on the relationship’s combined domestic and familial characteristics.

This does not establish that any trusted adult, older acquaintance, or host automatically qualifies. The statutory connection between the position, access to the minor, and the relationship’s authoritative or coercive character remains important. Nor did the decision turn teenage parenthood itself into a substitute for proving the required relationship.

6. Potential Impact and Practical Significance

Because the opinion is unpublished, its principal value is explanatory and potentially persuasive within RAP 41’s limits. It illustrates how existing Kentucky doctrine may operate in several recurring settings.

Evidence and Preservation

The decision reinforces that an evidentiary violation and an entitlement to reversal are separate questions. A timely hearsay objection remains important because an unpreserved challenge must satisfy the demanding manifest-injustice standard. At the same time, corroborating evidence does not make otherwise inadmissible statements admissible.

Digital Evidence

Recordings need not depict the ultimate charged act to be probative. Conduct surrounding an encounter, including avoidance, repeated approaches, and disabling a camera, can support circumstantial inferences. The opinion nevertheless supplies no categorical rule that switching off a camera proves coercion.

Charging and Jury Instructions

Separate sexual acts within one episode can support multiple convictions when each is independently established rather than incidental. Identifying the particular conduct underlying each count remains the clearest way to reduce double-jeopardy concerns.

Protection Beyond Formal Family Structures

The authority analysis accommodates informal caregiving and quasi-family arrangements. Its focus on actual relationships may be relevant where a minor’s dependence and an adult’s influence exist without marriage, blood relationship, or a formal appointment. Future applications should remain sensitive to the full evidentiary context rather than treating one feature as conclusive.

7. Complex Concepts Simplified

Hearsay and credibility bolstering

An out-of-court statement offered as true is generally hearsay. Having several witnesses repeat one person’s allegation can improperly make that allegation seem independently confirmed.

Palpable error

A demanding form of review for an error not properly raised at trial. An obvious mistake is not enough; it must cause manifest injustice.

Double jeopardy

A protection against being prosecuted or punished twice for the same offense. It does not necessarily prohibit separate convictions for distinct criminal acts committed during one encounter.

Incidental contact

Contact that is merely part of another act, rather than a separately established act of sexual gratification. That distinction was central to the multiple-conviction analysis.

Position of authority or special trust

A legally significant relationship that gives an adult authority over a minor or the ability to exert undue influence through that authority. Formal family status is not always required.

Abuse-of-discretion review

Review that gives the trial court latitude. Here, the question was whether the evidence reasonably supported giving the challenged instruction.

Consent and forcible compulsion

Consent concerns voluntary agreement; forcible compulsion is the statutory requirement underlying the rape theory charged here. Evidence about consent can bear on that requirement, but the concepts should not simply be treated as identical.

8. Conclusion

The Supreme Court of Kentucky affirmed McDowell’s convictions and sentence because the inadmissible hearsay did not create palpable error, the challenged sexual acts were separately punishable, and the evidence justified authority-or-special-trust instructions.

The opinion’s broader significance lies in its attention to context: the actual prejudice caused by repeated allegations, the distinct conduct supporting each conviction, and the practical influence exercised within an informal family relationship. Its unpublished status, however, limits its use to permissible nonbinding consideration rather than binding precedent.