Via v. Commonwealth

NOT TO BE PUBLISHED

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE NO. 20-CR-000080

COUNSEL FOR APPELLANT:

F. Todd Lewis

Lewis Law PLLC

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General

MEMORANDUM OPINION

AFFIRMING

Michael Wayne Via was convicted by a Jefferson County jury of first-degree rape, first-degree sodomy, first-degree sexual abuse, voyeurism, and being a first-degree persistent felony offender (PFO I). He received a total sentence of twenty years' imprisonment and appeals to this Court as a matter of right. Having carefully considered the record, law, and briefs, we affirm.

KY. CONST. § 110(2)(b).

FACTS AND PROCEDURAL HISTORY

Via and Jane Doe were married in 1997 and divorced approximately two years later. They have one child in common who is now an adult. Via and Jane reunited in 2017, but, in Jane's words, the relationship became "dysfunctional" and "terrorizing," and the couple broke up in November 2019. Approximately one week after the breakup, Jane discovered three graphic videos on a cellphone which the parties had shared. The videos were dated June 15, 2019, and depicted Via performing various sexual acts upon Jane while she was asleep. Jane was completely unresponsive throughout the video and could be heard snoring. In two instances, she could be heard making unintelligible noises as if being awakened, but it was apparent that she never fully regained consciousness at any point on the videos.

We refer to the victim by a pseudonym to protect her privacy. Rules of Appellate Procedure 31(B).

A few days to a week after discovering the videos, Jane obtained an emergency protective order (EPO) against Via but did not allege any sexual abuse at this time. She notified police about the videos the day after the EPO was entered. Jane claimed to have no recollection of the events depicted on the videos and that she was unconscious at the time. Although Jane acknowledged that Via had previously recorded their consensual sexual activity, she maintained the events on these particular videos were nonconsensual.

Via was charged with first-degree rape, first-degree sodomy, first-degree sexual abuse, voyeurism, and PFO I. He was released from custody pending trial after posting a $25,000 full cash bond. On the first day of trial, Via requested a continuance and informed the court he was not ready to proceed because he was unable to interview Jane prior to trial and he was unable to subpoena certain cellphone records. The court refused to postpone the trial. Additionally, the trial court granted the Commonwealth's motion in limine to exclude any evidence of Jane's sexual behavior beyond that pertaining to the incident in question because Via failed to provide notice of his intent to introduce such evidence in violation of KRE 412(c)(1). This ruling, and defense counsel's inability to conform to it, would color the remainder of the proceedings.

Kentucky Rules of Evidence.

KRE 412 is colloquially referred to as the "Rape Shield."

As will be discussed in further detail in Section 3 of this Opinion, trial counsel persisted in violating the trial court's order excluding the evidence of Jane's sexual behavior.

Following the conclusion of proof, the Commonwealth informed the trial court that Via agreed to plead guilty to the charged offenses in exchange for a recommended sentence of twelve years' imprisonment at eighty-five percent parole eligibility. Under the agreement, Via would be placed on home incarceration for five days to complete a previously scheduled medical procedure after which time he would be taken into custody. However, the trial court refused to accept this provision of the agreement because it would not otherwise allow a defendant to remain out of custody after a determination of guilt on serious felony charges. The trial court presented Via with the option to accept a modified plea agreement with the understanding that he would be placed into custody immediately. Against the advice of counsel, Via elected to proceed with trial.

During closing argument at the guilt phase of trial, defense counsel referred to a copy of the EPO which Jane had obtained against Via. The Commonwealth objected that counsel was arguing facts not in evidence. After the trial court sustained the objection, defense counsel turned from the bench and tore up the EPO. The trial court called a ten-minute recess and held defense counsel in contempt. Defense counsel can be heard on the record whispering to Via, "Now I have got to get a lawyer."

Counsel later purged himself of contempt by apologizing to the trial court.

Via did not return to court following the recess. Noting that Via had previously been warned about tardiness, the trial court made an explicit finding he had purposefully absented himself from the proceedings. Via was not present for the completion of closing arguments, for deliberation and return of the verdict, and the entirety of the penalty phase. The jury ultimately found Via guilty on all charges and recommended a total sentence of twenty years' imprisonment. Via was subsequently arrested and obtained new counsel. The trial court scheduled final sentencing for August 17, 2022, which was later continued to August 31, 2022.

The trial court subsequently ordered the forfeiture of Via's bond. Additionally, Via was separately indicted for bail jumping. Neither the forfeiture of the bond nor the bail jumping charge are presently at issue.

The day before final sentencing, Via filed a motion for new trial. At final sentencing, the trial court denied the motion for new trial from the bench and imposed the jury's recommended sentence of twenty years' imprisonment. The trial court entered a written order denying the motion for new trial on September 8, 2022. The final judgment of conviction and imposition of sentence was entered on September 12, 2022. This appeal followed. Additional facts will be developed as necessary.

LAW AND ANALYSIS

1. Trial court properly denied motion for continuance.

Via first argues the trial court erred by denying his motion for a continuance. We disagree.

RCr 9.04 governs the postponement of trial in a criminal case and states in pertinent part:

Kentucky Rules of Criminal Procedure.

The court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial. A motion by the defendant for a postponement on account of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it.

The denial of a motion for continuance is generally reviewed for abuse of discretion. Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014). In determining whether to grant a continuance in a particular case, the trial court should consider the

length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.

Id. (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991)). Moreover, we recently interpreted the plain language of RCr 9.03 "makes it mandatory that any motion to continue made on the basis of 'absence of evidence' be accompanied by an 'affidavit showing the materiality of the evidence . . . and that due diligence has been used to obtain it.'" Helmick v. Commonwealth, 686 S.W.3d 158, 163 (Ky. 2024) (quoting Jeter v. Commonwealth, 531 S.W.3d 488, 497 (Ky. 2017)).

On the first day of trial, Via announced that he was not ready to proceed. He explained he was unable to conduct a pre-trial interview with Jane because he had not received her contact information. Via further asserted he had not had the opportunity to subpoena Jane's phone records to conclusively establish that she sent him a text message requesting money and pizza eight days after she discovered the videos of the rape. He further stated that he would be ready for trial if the Commonwealth would stipulate that Jane sent this message. The trial court responded, "Well, you are going to have to be ready. I'm not going to make an inquiry of the Commonwealth.... So, if that is a motion to continue, it is denied."

Clearly, Via's inability to conduct a pre-trial interview with Jane and secure her phone records constitutes the absence of evidence. There is no indication in the present record that Via presented an affidavit to the trial court outlining the materiality of this evidence and counsel's due diligence in obtaining same. Thus, under Helmick, we cannot conclude the trial court abused its discretion in denying the motion for continuance.

Additionally, the dissent overlooks the mandatory affidavit requirement under RCr 9.04 and purports to excuse Via's failure to comply with the plain terms of the rule by faulting the trial court for neglecting to consider the merits of the continuance. This argument puts the cart before the horse and was squarely rejected by our unanimous decision in Helmick. 686 S.W.3d at 163. Therefore, the trial court had "had no alternative but to" deny Via's motion to continue the trial on this basis. Id.

2. Trial court did not abuse its discretion by excluding evidence of the victim's other sexual behavior for lack of proper notice.

Via next argues the trial court improperly excluded evidence of prior consensual sexual acts between Jane and himself. We disagree.

When a criminal defendant intends to introduce specific evidence of a victim's sexual behavior as proof of consent, KRE 412(c)(1) requires the defendant to:

(A) file a written motion at least fourteen (14) days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

In construing the federal counterpart to KRE 412, the United States Court of Appeals for the Tenth Circuit explained the purpose of the notice requirement:

First, the notice provision contained in Rule 412 is not arbitrary. The rule supports important interests implicated in sexual assault cases. The advisory committee notes that follow Rule 412 indicate that the rule is intended to safeguard the victim against invasion of privacy, potential embarrassment, and stereotyping. See Fed.R.Evid. 412 advisory committee's note. "By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders." Id. The notice requirement contained in the rule also works to protect both the victim and the prosecution against surprise and prejudice due to late disclosure of evidence.

United States v. Ramone, 218 F.3d 1229, 1235-36 (10th Cir 2000) Thus, contrary to the view of the dissent, the notice requirements of KRE 412 cannot be reduced to a mere technicality See Cates v Kroger, 627 S.W.3d 864, 877 (Ky 2021) (Nickell, J, concurring in part, dissenting in part) ("An ignored rule is little better than no rule.").

In Mayo v. Commonwealth, this Court observed that a trial court has "the discretion to rely upon the lack of notice alone to exclude testimony about the victim's sexual history." 322 S.W.3d 41, 49 (Ky. 2010) (emphasis added). This statement of law is consistent with the decision of the United States Supreme Court in Michigan v. Lucas, 500 U.S. 145, 153 (1991), which held the exclusion of relevant evidence for failure to comply with the notice requirements of a rape shield law does not violate a criminal defendant's Sixth Amendment right to present a defense.

Professor Lawson has further explained the plain language of KRE 412 "clearly contemplates that noncompliance provides grounds for exclusion of the evidence, but leaves room for trial court discretion to accept a motion for admission during trial upon a showing of 'good cause' for noncompliance." Robert G. Lawson, Kentucky Evidence Law Handbook § 2.35[5][a] (2023) (footnote omitted). In this context, "good cause" generally refers to "whether the evidence is newly discovered and could not have been obtained earlier through the existence of due diligence, and whether the issue to which such evidence relates has newly arisen in the case." Id. at § 2.35 n.60 (quoting FRE412 , Notes of Advisory Committee 1994 Amendment).

Federal Rules of Evidence.

Here, Via did not file the required written motion at any time and first informed the Commonwealth of his intent to introduce evidence of Jane's prior sexual activity approximately seven days before trial. As part of the reciprocal discovery process, Via provided the Commonwealth with a flash drive containing videos and still photographs depicting various consensual sex acts between Jane and himself. Subsequent to the receipt of these materials, the Commonwealth filed a motion in limine seeking to exclude this evidence, arguing that Via failed to provide the required notice under KRE 412 and that the videos and images were otherwise inadmissible.

The trial court granted the Commonwealth's motion solely on the basis that Via failed to provide notice under KRE 412(c)(1). At the hearing on the motion, Via was afforded an opportunity to demonstrate good cause for noncompliance. Via stated that he believed formal notice was unnecessary because consent was obviously at issue. He further claimed excusable neglect because of technical difficulties relative to the transfer of the videos and images to the flash drive. The trial court did not accept these excuses as justification for Via's failure to comply with the notice requirement.

We cannot conclude the trial court abused its discretion. There is no indication the proffered evidence was first discovered after the deadline for notice had lapsed, and likewise, the issue of the victim's consent did not arise for the first time at this stage of the proceedings. On the contrary, Via had ample time to provide written notice in this case having been aware of the scheduled trial date for approximately nine months. Therefore, we cannot conclude Via established good cause for his failure to provide notice under KRE 412(c)(1).

The dissent attempts to excuse Via's failure to comply with the plain language of KRE 412 by shifting the blame to the timing of Commonwealth's supposed "trial by ambush" tactics despite the fact that Via did not raise any argument pertaining to the timing of the Commonwealth's motion in limine before the trial court or in his brief to this Court. However, it is axiomatic that a party's failure to address an issue in an appellate brief results in the abandonment of that issue. CSX Transp., Inc. v. Moody, 313 S.W.3d 72, 88 (Ky. 2010). Additionally, we find it difficult to reproach the Commonwealth for merely responding to Via's late disclosure of evidence which is precisely the situation that the KRE 412 notice requirement was designed to prevent. See Ramone, 218 F.3d at 1236.

Additionally, the dissent faults the trial court for failing to inquire into the substantive admissibility of Via's consent evidence. Again, this argument puts the cart before the horse and runs afoul of the procedural requirements contained in KRE 412(c). Further, the dissent's position on the substantive relevance of Via's proposed evidence contradicts our holding in Mayo. 322 S.W.3d at 49.

The protections of the KRE 412 apply with equal force "to inter-spousal sexual relations." Id. at 48. When a criminal defendant asserts a consent defense to a sexual offense, "the only real issue" at trial is "whether the victim consented to the intercourse in question." Id. at 49. Thus, "the fact that the victim and [defendant] may have had consensual . . . sex in the past does not make it more or less likely that she consented to having any type of sex . . . with [the defendant] at the time in question[.]" Id. We conclude the reasoning of Mayo is controlling here. Therefore, the fact that Via and Jane recorded conscious and consensual sexual encounters in the past does not make it any more or less likely that she consented to the sexual acts in question especially because she was not conscious and otherwise physically helpless at the time of the charged offenses were committed.

3. Allegations of error raised for the first time in a tardy motion for new trial are unpreserved for appellate review.

Via's remaining claims of error were raised for the first time in a motion for new trial. Specifically, he contends the trial court erred by denying his right to be present at critical stages of trial and otherwise directly depriving him of the right to counsel. Via further argues entitlement to a new trial on the grounds of ineffective assistance of trial counsel.

At the outset, we observe that Via's motion for new trial was untimely. It is well-established that all grounds for a new trial, except for claims involving newly discovered evidence, must be raised by service of a motion "not later than five (5) days after return of the verdict." RCr 10.06(1); Price v. Commonwealth, 59 S.W.3d 878, 881-82 (Ky. 2001). "The rule clearly provides that, although a motion for a new trial premised upon newly discovered evidence may be filed within one year of the judgment, a motion premised upon any other grounds must be filed within five days of the verdict." Johnson v. Commonwealth, 17 S.W.3d 109, 112 (Ky. 2000). Accordingly, in this context, "the time runs from the return of the verdict or finding of guilt rather than the date of sentence." Wright & Miller, 3 Fed. Prac. & Proc. Crim. § 590 (5th ed.) (explaining analogous Federal Criminal Rule 33). RCr 1.10(e) further provides, "[t]he time for a motion for new trial . . . shall not be extended."

RCr 10.06 is analogous to Kentucky Rules of Civil Procedure (CR) 59.02, which specifies, "[a] motion for a new trial shall be served not later than 10 days after the entry of the judgment." See Supreme Court Commentary to RCr 10.06 (1962).

Because "the rule expressly forbids an extension of time, certainly the time cannot be extended by a failure to object to timeliness or waiver[.]" Perkins v. Commonwealth, 442 S.W.2d 310, 312 (Ky. 1969). Thus, "[i]n the instance where the motion for new trial is not timely served or filed, the trial court may not exercise any discretion and is obligated to deny the motion for lack of power to grant new trial relief." Ford Motor Credit Co. v. Swarens, 447 S.W.2d 53, 55 (Ky. 1969). Further, issues raised for the first time in an untimely motion for new trial are not properly preserved for appellate review. Ligon Specialized Hauler, Inc. v. Smith, 691 S.W.2d 902, 904 (Ky. App. 1985).

We note the United States Supreme Court has held the time limit relative to a motion for new trial is not jurisdictional, but instead, constitutes an inflexible claims-processing rule which is subject to waiver. Eberhart v. United States, 546 U.S. 12, 19 (2005). With due respect to our Nation's highest Court, it is well-established that federal decisions interpreting federal procedural rules "may be accepted as persuasive authority when examining" our corresponding Kentucky rules. Taylor v. Morris, 62 S.W.3d 377, 379 (Ky. 2001). Here, we perceive no basis to depart from longstanding Kentucky precedent on this issue. See Thompson v. Killary, 683 S.W.3d 641, 651 (Ky. 2024) (Nickell, J., concurring) (noting this Court "may properly diverge" from contrary federal authority on the basis of relevant Kentucky precedents and tradition). We further note the federal rules do not contain an analogue to RCr 1.10(e) which specifically prohibits a trial court from extending the time for filing a motion for new trial.

In the present matter, the jury returned a guilty verdict and recommended sentence on June 3, 2022. Via did not file his motion for new trial until August 30, 2022. Read together, we perceive the terms of RCr 10.06(1) and RCr 1.10(e) to explicitly mandate a definite time after which a criminal verdict becomes free from attack by a motion for new trial. Although the Commonwealth did not raise the issue of timeliness and the trial court entertained the tardy motion, litigation conduct cannot operate to waive or extend the procedural requirements in contravention of the Criminal Rules. Thus, we conclude Via's motion for new trial was untimely and the trial court should have denied it on that basis without a determination on the merits.

From our review of the record, it appears the parties believed a motion for new trial could be properly filed at any time before sentencing.

Additionally, Via has failed to request palpable error review. We have consistently held that "[a]bsent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008). Further, "the constitutional nature of [an unpreserved] claim does not automatically elevate any alleged error to the point where we should review it under RCr 10.26." Henson v. Commonwealth, 20 S.W.3d 466, 470-71 (Ky. 1999). "In the past, we have held that a failure to properly preserve by objection even those alleged errors with constitutional dimensions means that this Court will not review them." Id. at 471.

Because the ineffective assistance of counsel claim was untimely raised in the first instance and does not involve a direct trial error, we decline to review it for palpable error here. See Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009) ("The ineffective-assistance claim is collateral to the direct error, as it is alleged against the trial attorney[.]"). Additionally, we fail to discern any extreme or manifestly unjust circumstances surrounding the trial court's explicit finding that Via voluntarily absented himself from the later stages of trial, and thus, decline to engage in palpable error review. However, considering the alleged deprivation of counsel could constitute a structural error mandating reversal, we elect to address Via's claim on this issue. See McCleery v. Commonwealth, 410 S.W.3d 597, 605 (Ky. 2013) (identifying the "complete denial of counsel" among the limited class of structural errors).

We further note that RCr 8.28(1) clearly provides, "[t]he defendant's voluntary absence after the trial has been commenced in his or her presence shall not prevent proceeding with the trial up to and including the verdict."

Via argues he was effectively deprived of counsel by the manner in which the trial court conducted the proceedings and that "the utter breakdown of civility and demeanor" otherwise violated his right to a fair trial. We disagree.

This Court has recognized the complete denial of counsel constitutes a per se violation of the Sixth Amendment. Commonwealth v. Tigue, 459 S.W.3d 372, 385 (Ky. 2015). "In essence, a complete denial of counsel occurs in one of two situations: 'when counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.'" Id. (quoting United States v. Cronic, 466 U.S. 648, 659 n.25 (1984)).

We observe that each of the cases Via has cited relative to this issue is clearly distinguishable from the present appeal. In Downs v. Commonwealth, 620 S.W.3d 604, 610 (Ky. 2020), the trial court excluded the defendant from an in camera hearing concerning counsel's fitness to continue representation at trial. In Eversole v. Commonwealth, 600 S.W.3d 209, 216 (Ky. 2020), the trial court excluded counsel from a colloquy with a juror who had been offered a bribe. In Tigue, 459 S.W.3d at 385, the trial court allowed counsel to refuse to assist the defendant with a motion to withdraw a guilty plea. In Geders v. United States, 425 U.S. 80, 91 (1976), the trial court ordered the defendant not to consult with counsel during a 17-hour overnight recess due to a perceived risk of improper "coaching." In Herring v. New York, 422 U.S. 853, 863 (1975), the trial court completely denied the defendant the opportunity to make any closing argument at all. We cannot conclude the foregoing cases mandate reversal due to the patent factual differences from the present matter.

Further, there is no indication counsel was physically absent at any stage of trial court, and we cannot conclude he was otherwise prevented from assisting Via at any critical stage of trial. On the contrary, it is apparent that the difficulties counsel experienced at trial resulted from his own unwillingness or inability to comply with the trial court's order excluding evidence of the victim's prior sexual behavior for lack of proper notice. Trial counsel repeatedly violated this order throughout opening argument, closing argument, and the examination of witnesses. Moreover, counsel often ran afoul of the court's rules on decorum, particularly the requirement of avoiding familiarity with the parties and witnesses. Additionally, trial counsel baselessly asserted the trial court or its staff had ex parte contact with Jane in chambers during the proceedings. Counsel's pattern of behavior culminated in the tearing of the EPO in response to a ruling of the court which resulted in the contempt finding during closing argument. Via's claim regarding the direct deprivation of counsel must necessarily be viewed against this backdrop.

We further note that Via's argument concerning the alleged violation of counsel's due process rights relative to the contempt finding is not properly before this Court and we express no opinion in connection therewith.

We agree with the dissent that this was far from a model trial. However, we perceive the responsibility for the breakdown in order and decorum to fall directly on Via and his counsel. Kentucky law has long recognized that "[a] client must necessarily risk the propriety of his counsel's conduct in the trial of his own case[.]" McGill v. Commonwealth, 216 Ky. 430, 287 S.W. 949, 950 (1926).

Moreover, a party may not challenge a trial court's order by violating it. United States v. Cutler, 58 F.3d 825, 832 (2nd Cir. 1995). "Instead, he must move to vacate or modify the order, or seek relief" in the appropriate appellate court. Id. While there are limits on a trial court's inherent authority to reprimand counsel, we simply do not perceive any violation of Via's right to counsel in this regard.

These limits are particularly applicable where trial court reprimands counsel in the presence of the jury, which, notably, did not occur in the present case. See McGill, 287 S.W. at 950.

Finally, as it is not the function of this Court to issue advisory opinions on an issue that has not been properly presented for review, we express no opinion on whether Via will be entitled to additional relief on a claim of ineffective assistance of counsel in any subsequent proceedings. Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992).

CONCLUSION

It is a bedrock principle of Kentucky law that the "necessity for procedural regularity in the conduct of trials" must be observed. Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977). "Substantive rights, even of constitutional magnitude, do not transcend procedural rules, because without such rules those rights would smother in chaos and could not survive." Id.

Moreover, "[i]f the courts must stop to inquire where substantial justice on the merits lies every time a litigant refuses or fails to abide the reasonable and known rules of procedure, there will be no administration of justice." Cates, 627 S.W.3d at 877 (Nickell, J., concurring in part, dissenting in part) (quoting United States v. Seigel, 168 F.2d 143, 146 (D.C. Cir. 1948)). To penalize the Commonwealth, the victim, and the trial court for Via's failure to comply with our well-established procedural rules would merely incentivize continued disdain and denigration of their essential importance in the future. Brown, 551 S.W.2d at 559. We cannot countenance such an evasion of our procedural law. For the foregoing reasons, the judgment of the Jefferson Circuit Court is hereby affirmed.

All sitting.

VanMeter, C.J.; Bisig, Conley, Keller, Lambert and Nickell concur.

Thompson, J., concurs in part and dissents in part by separate opinion.

THOMPSON, J., CONCURRING IN PART, DISSENTING IN PART.

I concur with the majority opinion's analysis and disposition as to Michael Via's voluntary absence from the later stages of the trial. There can be no excuse for his absconding from the courthouse and there are separate crimes and penalties for that conduct.

I dissent from the decision to affirm his conviction. Via did not receive a fair trial. In fact, the lack of due process at this trial shocks my conscience. The vast majority of Via's relevant and probative exculpatory evidence was suppressed. The jury's verdict was little more than a default judgment. The jury was deprived any context for the allegations when a sexual relationship spanning more than twenty years was reduced to one event because of Via's counsel's noncompliance with the fourteen-day notice rule found in Kentucky Rules of Evidence (KRE) 412, known as our "rape shield rule." This could have all been avoided by granting a continuance. We can debate whether the innumerable faults in Via's trial were the result of the trial court, Via's attorneys, or the Commonwealth's successful gamesmanship, but the result was a flagrant violation of Via's due process rights.

Via and the victim were married twenty-two years prior to the events of the indictment. They had one child together before divorcing and had been reunited for more than two years before the alleged rape. The parties had consensual sexual relations immediately prior to the alleged rape. The victim informed the investigating detective that they, the couple, had made sex videos "many times" and that she had consented to such.

At his trial, Via would also attempt to produce evidence from text messages that the victim had initiated their sexual relations on the day of the alleged rape. All of this history would be withheld from the jury under the broad sweep of the trial court's ruling.

The issues presented on this appeal could have been easily avoided by either Via's counsel giving timely written notice of his intent to introduce evidence pursuant to KRE 412(b)(1)(B), or the trial court either: (a) conducting a pre-trial hearing pursuant to KRE 412(c)(2) to review what the defense intended to offer into evidence and what if any reason there would be to exclude any portion thereof; or (b) simply granting a continuance. The trial court's refusal to grant a continuance, coupled with its peremptory ruling on the exclusion of evidence, should be considered by this court together. If viewed en toto, it should be determined that the trial court abused its discretion and Via's convictions should be reversed.

Via was indicted January 9, 2020, arrested, and held on a $25,000.00 full cash bond. The Public Defender's office was appointed to represent him, and two named public advocates appear from the record to have represented Via at different stages in his prosecution. At least three motions were made for bond reduction and/or home incarceration, each of which were denied. A private attorney entered an appearance on Via's behalf in October of 2020. In December of 2021, bond was posted on Via's behalf after he had been in jail for almost two full years.

On May 3, 2022, less than one month before Via's scheduled trial, another attorney entered his appearance for Via. By this time, Via had been represented by four different attorneys and his case had been pending for two and half years.

On May 23, 2021, only eight days before the scheduled trial, Via's new counsel made motion for the court to order the Commonwealth to produce the alleged victim's contact information. This was his first appearance in the matter. No other issues, or potential issues, with the fast-approaching trial were discussed. On that day, Via's new counsel also provided video and photographic evidence to the Commonwealth which he later described as "involving] interactions and sex acts between Mr. Via and the complaining witness other than that of the immediate event portrayed in the videos which formed the charges herein." Counsel would later explain his failure to file a written motion along with the motion for production by stating, "I am now aware that, ordinarily, this would be material subject to the 14-day notice requirement of KRE 412. I simply overlooked or forgot this requirement of notice and have no other explanation for not having completed the proper notice."

Affidavit of Hon. John Olash offered in support of Via's Motion for New Trial and/or Motion for J.N.O.V; August 30, 2022 (TR 178).

On May 31, 2022, the first day of the scheduled trial, the trial court began by asking counsel if they were ready to proceed and Via's counsel responded in the negative stating,

No, your honor. As you know your honor, I got on the case a month ago and had every anticipation of, every plan to be ready, I didn't want to be a late arriving lawyer and ask for a continuance, so I've done everything I can to get ready, but one thing after another has occurred and it's put me in a position where I don't think I can put forward my client's best defense today.

Following that, counsel explained one issue dealing with his inability to interview the alleged victim or get confirmation that a phone number from which Via received texts asking for money and a pizza, after she'd seen the "rape video" and on the day she filed an EPO against Via, was in fact from the victim. The trial court firmly interrupted any further explanation of the reason and resolutely stated, "[t]oday's the date, so if that's a motion to continue, it's denied."

Finally, the trial court asked about any other matters and the Commonwealth only then approached and bench-filed a motion in limine to exclude "improper KRE 412 Evidence." This motion had not been filed in advance of trial and was hand-delivered, with no notice, to Via's counsel as well. The Commonwealth noted that no KRE 412 notice had been given but, explained its desire to make sure no improper KRE 412 evidence could be used:

I do have some concerns that [defense counsel] perhaps does have an intent due to the fact that last Monday, I believe, I received a flash drive that contained multiple videos and photographs that are essentially of the defendant and the victim engaging in sexual activity, there have also been statements made by [defense counsel] in motions that he intends to question the victim about the fact she and the defendant may have previously filmed consensual sexual activity.

The trial court responded, "That's the first I am hearing of that kind of evidence." (Emphasis added).

The trial court's statement was correct and unacceptable. There was no reason why, on the morning of trial, that the trial court had not been informed of the evidence and issues attendant thereto. Despite the two and half years since indictment, and despite the number of counsel who had appeared, the record does not reflect any mention being made by the Commonwealth or by any of Via's counsel relating to what should have been recognized by all to be the ultimate issues in Via's upcoming trial: the admissibility of evidence of the alleged victim's consent including the couple's prior, consensual, photographed and videotaped sexual history.

The investigating detective, even prior to an indictment being sought, had noted in his records that the victim herself had informed him that she and Via had made "many" recordings of sexual relations, yet nothing was ever said of this matter again before the morning of trial. This is inexcusable. Consent was "the issue" and the parties' consensual sexual history would obviously constitute Via's exculpatory evidence. Despite this, none of Via's counsel (current or past) had discussed the issue with the trial court previously, even though it could have been broached initially in any of the motions for bond reduction, later in pretrial compliance with the trial court's reciprocal discovery order, or at a pretrial conference. The Commonwealth as well should have noted the existence, or potential existence, of such recordings as known exculpatory evidence within its tendered pretrial discovery, given that the victim had already informed law enforcement that such videos had been made prior to the indictment. Regardless, the Commonwealth was not restricted to waiting until the last possible minute to hand-tender a motion in limine, when such motion could have been heard well in advance and concerned not only the notice requirements of KRE 412, but also the overall issues of the relevancy and probativeness of any and all evidence and testimony concerning the extensive sexual history of the parties.

When queried by the trial court about not providing prior notice, Via's counsel responded as follows:

Notice is obvious in this case, even obvious before I got involved, this is going to be a consent issue. The detective interviewed the alleged victim and he asked her if, where there any other did you videotape each other having sex and she said 'yes, we videotaped our sex on lots of occasions,' so this is pretty clear this is a consent case. I provided the video thumb drive to the prosecution last week, it's, it's crucial . . . there's no way I can put forward a defense without . . . .

(Emphasis added).

The trial court interrupted and asked counsel "procedurally" about notice, to which defense counsel responded as follows:

I didn't file notice because I had a difficult time with my client's situation to get video from his phone to a flash drive, he struggled with it, my office struggled with it, in fact, part of the . . . such a mess, part of the, some of the discovery that went into that was information I really didn't want to share with the prosecution but we were in such a rush because of my late entry into the case that I filed that with the prosecutor knowing that it would be pretty obvious when she saw this [that] it would be something I planned to use in order to establish consent. I didn't think it was necessary to file a written motion on something that was so obvious. . . that was the basis for the reciprocal discovery.

The trial court, focusing on the notice requirement, asked how it could admit any such evidence without prior notice and counsel responded, "[j]ust the due process that my client has the opportunity to present a defense and it's excusable neglect." The trial court stated that "this video" could not be used or mentioned, solely on the basis that Via failed to provide notice under KRE 412(c)(1). However, in the course of the trial not only were all of Via's videos and photographs suppressed, but any mention of the couple's sexual history was categorically excluded because the trial court signed the Commonwealth's just-tendered order which stated, "defense counsel is prohibited from questioning witnesses about, introducing evidence of, or making references to the sexual history of the victim, T.M. during all phases of this trial, including opening statements and closing arguments."

Ultimately, the restrictions on Via's ability to testify, elicit testimony, or to produce evidence were not limited to merely the contents of the videos and photographs he had provided to the Commonwealth (none of which were apparently ever viewed by the trial court). Eventually, the trial court admonished Via's counsel that he could not even allude to "anything that happened one second before that" referencing the sex acts produced on the Commonwealth's video. At least five bench conferences were held interrupting Via's counsel's opening statement before the trial court unilaterally stopped the opening. By this juncture it should have been evident to the trial court that the case could not proceed and that further hearings were necessary on the issue of KRE 412 evidence.

During Via's testimony he was not allowed to testify about sexual activity the parties engaged in which began the morning of the alleged crimes. Via's counsel argued that the testimony regarded the victim's initiation of the sexual encounter and that the victim fell asleep later, during a consensual sexual encounter. The trial court specifically refused to allow testimony regarding any "sexual activity that doesn't involve this actual incident." Via was, effectively, barred from testifying as to why he thought the victim had consented to sex, including consensual foreplay initiated by the victim, because, as the trial court stated, "[h]e can't talk about things that happened prior to the incident." When questioned by his counsel as to, "[w]hy did you think it was okay to touch her like that," the trial court excused the jury and admonished Via to not talk about the couples' "history of sex" and to not describe "any prior kind of sexual behavior." Later, a series of profane text messages exchanged between the victim and Via on the morning of the alleged crimes, which involved discussion of the type of sexual activity they would later engage in that day, were also excluded by the trial court.

Defense counsel's closing argument gives us a glimpse of not only how far the trial court's order had gone to limit Via's presentation, but of how the trial had devolved overall. In the closing, and immediately prior to interruption, counsel stated:

They get married, and they had a honeymoon, but there is absolutely no sex, no way, but in 1998, a good three or four years after they start their relationship a child is born, okay, and they're married, so technically, what is the conclusion? They had sex okay. And then, this is the prosecutor's version okay, so then in 2000 they get divorced, and I guess they got divorced because they were only allowed to have sex once.

While blunt, defense counsel's synapsis was accurate. The jury had never been allowed to hear anything regarding the couple's sexual history (even including earlier that day) or their common practices outside the confines of what could be viewed on one video offered by the Commonwealth. Immediately following this statement, the Commonwealth objected and another interruption resulted in a bench conference where the trial court again admonished counsel, "[t]his court ordered that you make no reference to any sexual activity between these parties." Problematically for Via, "sexual activity between these parties" had been, and was, the whole crux of Via's attempted defense.

Via's counsel would ultimately be found in contempt during presentation of his closing argument. In his later affidavit he would state,

When the court ultimately did hold me in contempt and announced that I was being put in custody [for 48 hours], I was in no position at all to be attentive to [ sic] reasonably competent

(during closing argument), I just told Mr. Via that I needed to get my own lawyer at this point, and paid little attention to whether Mr. Via even understood what was happening in the proceedings at that point.

Via's counsels should have been aware of the full import of KRE 412 and the necessity of providing notice and a motion at least fourteen days prior to trial even when the nature of the evidence the defense intended to provide was "obvious." However, I cannot condone the Commonwealth's last possible minute, after the deadline had passed, bench-filing of its motion in limine. This was a classic example of" trial by ambush." The Commonwealth consciously chose not to provide Via's counsel with any advanced notice whatsoever, not even the courtesy of scanning the motion and proposed order the night before or hand-tendering these items to defense counsel immediately upon arrival at the courtroom. This left Via's counsel absolutely no opportunity to research the issue or prepare any response. The Commonwealth could have filed a motion in limine concerning testimony or evidence falling under the umbrella of "rape shield" at any point prior to trial. The Commonwealth was well aware that any rape trial regarding a couple with such a long sexual history would involve issues of alleged consent and, in this case in particular, would involve this particular couple's unique sexual practices. The Commonwealth knew, from the victim herself, at the beginning of its prosecution that the victim and Via had repeatedly videotaped consensual sex acts.

When the trial court granted the Commonwealth's motion in limine, it exhibited no curiosity whatsoever as to either the exculpatory value of the evidence it had excluded or how its exclusion would affect Via's ability to put forth any meaningful defense. There was no analysis by the trial court regarding the complex issues raised by the Commonwealth's bench-filing immediately before trial.

When the trial court granted the heretofore unknown motion in limine, it should have immediately revisited the merits of Via's previously denied motion to continue in order to examine how any decision it made would affect Via's ability to offer a defense. The limitations placed on Via by the trial court should have been unquestionably recognized by the trial court as an "identifiable prejudice" to Via. See Morgan v. Commonwealth, 421 S.W3d 388, 392 (Ky. 2014).

The granting of a continuance would have forestalled all the issues faced during the trial and those this Court must attempt to unwind. The effects of the trial court's granting of the motion in limine and the resultant exclusion of the majority of Via's exculpatory evidence made a continuance compulsory. While we view denials of motions to continue under an abuse of discretion standard, trial courts are instructed to consider previous requests for continuances and whether "denying the continuance will lead to identifiable prejudice." Morgan, 421 S.W3d at 392. Denial of the ability to provide relevant, probative, necessary, and exculpatory evidence to a jury only because of a missed deadline and the ignorance of one's own counsel must qualify as "identifiable prejudice." The record demonstrates no prior requests for a continuance made by Via and certainly the trial court exhibited no urgency to conduct a trial in the two years Via sat in custody. The record here is devoid of any reason, stated or written, as to why the trial court denied this request.

Under KRE 412, evidence is generally not allowed which is offered to prove that an alleged victim engaged in other sexual behavior or to prove an alleged victim's sexual predisposition. However, that rule contains three exceptions, two of which are relevant to Via's case. First, KRE 412(b)(1)(B) provides that evidence offered by the defense of the victim's past sexual experience with the accused is admissible "to prove consent." Second, and generally, evidence of the victim's past sexual behavior is admissible if it "directly pertain[s] to the offense charged." Montgomery v. Commonwealth, 320 S.W.3d 28, 39-40 (Ky. 2010).

In Montgomery, we noted the prior United States Supreme Court opinion in Michigan v. Lucas, 500 U.S. 145, 149 (1991), where the Court addressed "the need to balance these competing concerns in the context of a rape shield law," and declared that the Sixth Amendment right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Montgomery, 320 S.W.3d at 41. In upholding Michigan's rape shield law's notice provision, the Supreme Court emphasized that any restrictions on a criminal defendant's right to confront witnesses and to present relevant evidence, "may not be arbitrary or disproportionate to the purposes they are designed to serve." Michigan v. Lucas, 500 U.S. at 151 (quoting from Rock v. Arkansas, 483 U.S.44, 56 (1987).

This Court ultimately stated:

In the wake of Lucas and Rock, numerous courts have held that with those cases the Supreme Court established a balancing test for evaluating, on a case-by-case basis, Confrontation Clause and other Sixth Amendment challenges premised upon the exclusion of evidence. Under that test, courts must determine whether the rule relied upon for the exclusion of evidence is 'arbitrary or disproportionate' to the 'State's legitimate interests.'

Montgomery, 320 S.W.3d at 42 (citations omitted).

Under the basics of our rules, evidence is admissible only if it is relevant. KRE 402. Evidence is relevant if it is material and probative. KRE 401. It is material if it goes to a fact of consequence in the case, and it is probative if it tends to make a matter of fact even marginally more or less likely. KRE 401.

None of the evidence or testimony excluded by the trial court was considered under these rules. The trial court's wholesale exclusion of all "sexually related" evidence pursuant to KRE 412 has denied the defendant due process and denied this Court any real ability to adjudge the value of the evidence Via sought to offer and, therefore, the impact its exclusion had on his defense. Via had rights under the federal Constitution and the Kentucky Constitution to "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986).

In this case, the victim's consent, or lack thereof, was the issue to be decided by the jury. It was essential for Via to be able to present a defense, based upon his belief he had consent, to counter the evidence provided by the Commonwealth. Via and the alleged victim had consensual, videotaped, and photographed sexual relations on numerous occasions. The jury was only permitted to see, or even hear about, one event, because of the trial court's rulings. These rulings denied the jury the ability to contextualize what was alleged versus all other similar instances, past behaviors, and sexual practices between the parties and such evidence would have weighed on not only the issue of consent, but the alleged victim's truthfulness and any motive she may have had for the substantially delayed reporting the alleged assault. In sum, one isolated incident, among many, was presented by the prosecution's evidence in a complete factual vacuum.

Certainly video-taping a woman during sexual acts after she has fallen asleep or lost consciousness is very offensive and would be seen as such by any jury. However, it is in that awful context that we must also recognize the essentialness of Via's corresponding need to present and demonstrate that the one episode shown by the Commonwealth was really a common course of conduct between the parties. The "other" instances that Via could not provide or explain were all a part of the body of evidence available which should not have been excluded peremptorily, and without even any glancing consideration, by the trial court based upon a notice technicality, especially so when a continuance could have remedied every alleged error and provided Via with a proper trial.

I close by stating that if Via's convictions and sentences cannot be reversed on this direct appeal, they should subsequently be reversed in accord with Rules of Criminal Procedure (RCr) 11.42 since all of his counsel failed to file a timely notice of his intention to proffer evidence of the victim's sexual history with Via and such clearly establishes a claim for ineffective assistance of counsel.

Accordingly, I vote to reverse and remand for a new jury trial.