Kenny Dile, Jr. v. Commonwealth of Kentucky

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Supreme Court of Kentucky 2024-SC-0025-MR

KENNY DILE, JR. APPELLANT

ON APPEAL FROM TAYLOR CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, JUDGE

NO. 23-CR-00080

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Taylor County jury found Kenny Dile, Jr. ("Dile") guilty of one count of incest, one count of first-degree sodomy, one count of unlawful transaction with a minor in the first degree, three counts of sexual abuse in the first degree as to M.R.¹and one count of sexual abuse in the first degree as to E.D. It fixed his punishment at fifty-nine years' imprisonment. Dile now appeals as a matter of right and challenges his convictions. See KY. CONST. § 110(2)(b). Having reviewed the record, the arguments of the parties, and the applicable law, we affirm the Taylor Circuit Court.

1 We use the first and last initial of all victims who were minors at the time the crimes occurred to protect their identity and privacy.

I. BACKGROUND

Prior to meeting Dile, Emily²had three daughters: M.R., born in 2003; E.D., born in early 2007; and A.D., born in late 2007. Emily married Dile on November 28, 2011. The couple had two children together: L.D., born in 2010, and P.D., born in 2012. Dile legally adopted E.D. and A.D. in 2012. Dile sexually abused M.R. for the first time in 2012. At the time, M.R. was nine years old, and the family had just moved into a house on Columbia Avenue in Green County. M.R., E.D., and A.D. shared a bedroom on the upstairs floor. They had a full-size bed, along with a trundle bed that pulled out from underneath the full-size bed. M.R. and E.D. shared the full-size bed, while A.D. slept on the trundle bed. L.D. and P.D. shared a large bedroom with Emily and Dile. The house had one half bathroom on the upstairs floor where M.R., E.D., and A.D. shared their bedroom and one full bathroom on the main floor.

M.R. testified that when they lived in this house, Dile would come into her room while she was sleeping and put his hands in her pants and touch her vagina. M.R. would wake up, realize what was happening, and "kind of wrestle like [she] was waking up" to get Dile to leave. M.R. explained that Dile was very quiet when he did this to ensure that he did not wake up the other girls. M.R. also testified that Dile touched her breast inappropriately while she showered. She stated that Dile would announce that he was entering the

2 We omit Emily's last name to further protect the identity of the minor victims.

bathroom to retrieve something, but once he got into the bathroom, he would look at M.R. and touch her breast. M.R. testified that this happened approximately three times a month.

Around the beginning of 2014, the family then moved to a house on White Wood Road in Green County. Emily testified that her uncle owned the home and offered them a good deal on rent.

At this house, M.R. shared a bedroom with L.D. M.R. testified that Dile's conduct continued at this house. Dile would touch M.R.'s vagina while she was sleeping. M.R. again explained that Dile was quiet to ensure he did not wake L.D. The only time L.D. ever woke up was when M.R. was crying following one of the incidents.

Dile also continued entering the bathroom while M.R. showered under the pretext of retrieving something, only to then look at M.R. and touch her breast. M.R. testified that this conduct occurred approximately three times per month.

In 2016, the family moved to a house on North Central Avenue in Campbellsville, Taylor County. M.R. testified that she was around thirteen years old at the time. She slept in a bedroom in the basement. E.D. and A.D. shared a bedroom on the upstairs floor. There was one half bathroom on the upstairs floor and one full bathroom on the main floor. Dile's conduct continued in this house. He would enter the bathroom while M.R. showered and touch her breast. M.R. testified that Dile commented on her body changing and told her she needed to shave her pubic hair.

M.R. also testified that she often did not fight back because she believed it was "the less-scary option" to just let it happen. On one occasion, however, M.R. explicitly consented to Dile touching her breast. M.R. testified, [Dile] told me that if I just let him one time that he wouldn't ever do it again. And so, once I was willing to let him do it because he said that it wouldn't ever happen again and I'm young and I thought that maybe if he was saying that that it wouldn't ever happen again. However, Dile's conduct continued with the same frequency after that incident. At this house, Dile did not enter M.R.'s bedroom while she slept, but instead told her to come into the bedroom Dile shared with Emily. Dile would touch M.R.'s vagina there. This happened about three times a month. M.R. testified that on one occasion, when her mother was not home, Dile called M.R. into his bedroom and had her take her pants off. Dile then touched M.R.'s vagina with his fingers despite M.R.'s repeated pleas for him to stop. Dile then put his mouth on M.R.'s vagina. M.R. "kicked and fought with all [her] force to get away" and ran to the bathroom and cried. The bathroom door did not lock and Dile forced his way in and apologized. Dile told M.R. that she could not tell anyone, or they would both be in trouble.

On another occasion, M.R. testified that Dile followed her to the basement after her shower. M.R. was in her towel and was going to get dressed in her bedroom in the basement. Dile followed her and told her to take off her towel, go to the other side of the basement, and run toward him. M.R. did as Dile asked and attempted to cover herself with her towel. Dile made her run another lap around the basement before he let her get dressed.

In 2018, the family then moved to a house on Valley View Drive in Campbellsville, Taylor County. M.R. testified that Dile did not touch her at this house. M.R. believed it stopped because she got a boyfriend and Dile seemed to lose interest. After M.R. realized this, she made sure to always have a boyfriend from that point forward.

The main bathroom in this house had a window that was eye-level with the house's deck. M.R. testified that Dile would adjust the blinds on the bathroom window so that he could look into the bathroom from the deck while M.R. was showering. M.R. would hear the screen door open when she started her shower and hear Dile walk on the deck's wooden planks. M.R. testified that Dile would also look into her bedroom window, so she bought blackout curtains to keep him out.

In 2019 or 2020, the family then moved to a house on Forest Hills Drive in Campbellsville, Taylor County. When they first moved into this house, E.D. and A.D. shared the basement. They utilized the entire open space as their bedroom. M.R. lived in this house for a couple months, but then moved out to live with her fiancé. When M.R. moved out, A.D. moved into M.R.'s old bedroom, and E.D. had the basement to herself.

In May 2021, on the Friday before Mother's Day, Emily went out to dinner with some friends. E.D. testified that while Emily was gone, Dile touched her inappropriately. E.D. was fourteen years old at the time. E.D. went to shower in the bathroom connected to Dile's and Emily's room. Dile entered the bathroom under the guise of getting toilet paper, but E.D. was still dressed,

and Dile then left. E.D. then got undressed and got in the shower. Dile again came into the bathroom, and E.D. attempted to cover herself. Dile asked if he could touch her breast, and E.D. responded "no" multiple times. Dile opened the shower door and touched E.D.'s breast as she continued trying to cover herself. Dile eventually left the bathroom, and E.D. finished her shower. E.D. testified that she then used a towel to cover herself as she went to get dressed in her room in the basement. However, Dile was waiting for her at the top of the stairs. E.D. walked past Dile to her bedroom. A.D. was sitting in the basement. A.D. testified that Dile followed E.D. down the steps and told E.D. to get dressed. A.D. held up a blanket to block Dile as E.D. got dressed. Dile sat A.D. and E.D. down on the couch and told them that he was sorry and that he loved them.

Two days later, Emily hosted family and friends at her home for Mother's Day. Emily was sitting on the couch next to E.D., when E.D. told her that she needed to tell her something. E.D. expressed hesitation, so Emily gave E.D. her phone so that E.D. could type out what she wanted to say. E.D. then typed out what Dile had done to her. E.D. wanted to type it out because she did not want Dile, who was in the room, to overhear.

Dile could tell Emily was upset and attempted to talk to her. Emily told Dile to get away from her. Their guests sensed the tension and left. Dile started apologizing and saying that it was a mistake. Emily yelled at Dile to leave, and he did.

E.D. and A.D. had been victims of sexual abuse in the past, and they begged Emily not to make them report Dile to law enforcement. Emily called M.R., and M.R. went to the house. Emily informed M.R. about what E.D. had said, and Emily testified that M.R. "had a weird reaction." M.R. testified that she was angry and blamed herself for what Dile had done to her sister. M.R. went to her upstairs bedroom with her fiancé, where she then told him everything that Dile had done to her. This was the first person M.R. told about the abuse. M.R. testified that she did not want to upset Emily further, and that is why she did not tell her about abuse that day. In the subsequent months, Emily was tasked with figuring out what her next steps would be with Dile and the children. Emily exchanged text messages with Dile regarding the logistics of when and how he would collect his things. They also discussed when Dile could visit with L.D. and P.D. The Commonwealth introduced Emily's screenshots of her Friday, May 14, 2021, text message exchange with Dile:

Emily: Hey did you decide on your check or figure anything out

Emily: Do you need to use my bank

Dile: I'm really sorry about my mistake. I'm sorry I broke ur trust. I wish I could change things. I'm sorry for the times I didn't appreciate u and the kids. I just got so comfortable being ur husband and their dad that I wasn't always my best version. I would give both my arms just to see u and the kids and spend time with yall. I took all that for granted and I am sorry for everything.

Dile: R U off work now?

Emily: I accept your apology. I'll never forgive you. This is so much more than not being the best version of yourself. I accepted you for all of that daily but not this. You are sick and you need help.

Emily: No more half days

Emily: Gotta have all the dollars

Dile: Will you please tell the kids that dad loves them and misses them since I cant do it

Emily: Yes Kenny I wouldn't dare make them feel like you don't love them but how do you think they feel right now

Dile: I know and I cant be there with them or with u to show how sorry I am and how much I hate myself

Emily: At what point did you feel like you would tell me that you had a problem.

Dile: I have missed out on 5 days now and counting. I also am about to miss a 2nd vacation with yall. It all sucks and doesn't get better.

Emily: What you have done has far more impact than what you feel

Emily: I have daughters who will never ever trust a man

Emily: It's just sick and of course you are the victim

Dile: I'm not being a victim. Im just saying I miss yall that's y I text u. And every day I miss yall more. I'm not being a victim. I know I messed up.

Dile: Whatever conversation I can get is a plus. Getting to see 2 kids yesterday was great but also I cried my entire way out of Forrest hills because I didn't want to let go and leave.

Dile: Hey will u call me asap please

Emily: Did you think you could get away with doing that shit to two of my daughters

Emily: What did you think was going to happen

Emily: They would be intimidated to not ever tell me

Dile: I wasn't saying anything bad. I was just hoping to still work and make as much as possible to take stress off of u

Emily: If you was concerned you wouldn't have let this happen In July 2021, Emily moved to Bowling Green with E.D., A.D., L.D., and P.D. for a fresh start. Dile's mother, Tammy Northrup, lived in Bowling Green. Emily lived with Northrup for a month before their house was ready. In May 2022, M.R. got married and decided that she wanted to have a child. A few months later, M.R. experienced complications from her attempts to conceive and she was referred to an obstetrician-gynecologist. Emily testified that M.R. was terrified of the thought of seeing an obstetrician-gynecologist. M.R. made an appointment with the obstetrician-gynecologist, but then missed

it. This prompted Emily to ask M.R. what was going on and what M.R. was not telling her. M.R.'s husband, at M.R.'s request, then informed Emily of the abuse that M.R. had suffered from Dile. The next day, in December 2022, Emily reported E.D.'s and M.R.'s abuse to the Campbellsville Police Department.

At trial, Dile testified and denied all the allegations. Ultimately, the jury found Dile guilty of one count of incest, one count of first-degree sodomy, one count of unlawful transaction with a minor in the first degree, three counts of sexual abuse in the first degree as to M.R. and one count of sexual abuse in the first degree as to E.D. It recommended that Dile receive a fifteen-year sentence for incest, fifteen-year sentence for first-degree sodomy, fifteen-year sentence for first-degree unlawful transaction with a minor, three-year sentence for each of the three first-degree sexual abuse offenses as to M.R., and five-year sentence for the first-degree sexual abuse as to E.D. The jury recommended that Dile serve his sentences consecutively for an aggregate sentence of fifty-nine years' imprisonment. The trial court sentenced Dile in line with that recommendation.

Additional facts will be developed as necessary.

II. ANALYSIS

A. Tammy Northrup's testimony did not result in reversable error.

Dile argues that the trial court committed various errors in its oversight of his mother's testimony. Specifically, Dile alleges that the trial court erred by allowing the Commonwealth to ask a question regarding an ultimate issue in

the case, read impermissible hearsay text messages between Dile's mother and Emily, and by permitting improper impeachment techniques by the Commonwealth.

Dile's mother, Tammy Northrup, testified at trial. She testified that she has a good relationship with Emily and that Emily even lived with her for a period of time. When Emily moved to Bowling Green, Northrup helped Emily find a house and job. After establishing that Northrup communicated with both Emily and Dile frequently, the following testimony took place:

Commonwealth: Okay. Did you ask [Dile] whether or not he had sexually abused these girls?

Northrup: Yes, I did.

Commonwealth: All right, and what did he say?

Northrup: He said no, he did not, that is not what happened.

Commonwealth: He denied that to you?

Northrup: Absolutely.

Commonwealth: Okay and did you believe that?

Northrup: Absolutely.

Commonwealth: Have you ever indicated to Emily that you believe he was guilty?

Northrup: No, I haven't.

Commonwealth: Never said a word to her, or suggested in any communication, that you think that he's guilty of this?

Northrup: There's text messages that could possibly— Defense counsel thereafter objected, claiming that the Commonwealth had asked Northrup a question regarding the ultimate issue in the case. At the bench, the Commonwealth argued that its question regarding whether Northrup believed Dile was guilty was permissible in light of text messages between Northrup and Emily. The Commonwealth argued that the question was permitted, as it intended to introduce a prior inconsistent statement by Northrup to Emily in which Northrup stated that "[Dile] was going to have to

accept the consequences of what he did and stop whining and crying about it."

The trial court, however, agreed with defense counsel, and noted that the Commonwealth should instead ask Northrup, "Did you in fact text [Emily] that you told your son that he was going to have to accept the consequences of what he did? And, if so, why?" The trial court observed that asking the question this way would avoid Northrup giving an opinion as to Dile's guilt while still allowing the Commonwealth to question Northrup regarding her text message. The parties did not argue any further about this specific line of inquiry or text message. Dile did not request an admonition or any further relief. Accordingly, while we agree with Dile that the Commonwealth's question was improper, there is no indication that Dile requested any further action from the trial court. In turn, "this argument is unpreserved for our review because '[m]erely voicing an objection, without a request for a mistrial or at least for an admonition, is not sufficient to establish error once the objection is sustained.'"

Leger v. Commonwealth, 400 S.W.3d 745, 752 (Ky. 2013) (quoting Hayes v. Commonwealth, 698 S.W.2d 827, 829 (Ky. 1985)).

Dile next alleges that the trial court erred in allowing the jury to hear a series of text messages between Northrup and Emily. The trial court discussed the admissibility of these text messages with the parties at the bench. Dile objected to the Commonwealth's use of the following text messages from Northrup to Emily:

(1) I told him that he was going to have to accept the consequences of what he did and stop whining and crying about it. He is going to have to deal with it and move on.

(2) All of this is so stupid. I told him last night that he's the one that has caused all of this, so just deal with it. This isn't something that I can fix.

The trial court advised the Commonwealth that it could use the text messages for impeachment purposes so long as it did not ask Northrup to comment on an ultimate issue in the case.

On appeal, Dile alleges that the text messages were not inconsistent with Northrup's testimony and were thus inadmissible hearsay. Further, Dile argues that the Commonwealth failed to comply with the requirements of KRE³613 because it did not question Northrup about the "time, place, and persons present" prior to having Northrup read the text messages aloud to the jury. Because Dile properly objected to these text messages, we review for abuse of discretion. "Rulings upon admissibility of evidence are within the discretion of the trial judge; such rulings should not be reversed on appeal in the absence of a clear abuse of discretion." Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999).

The Commonwealth argues that its use of the above text messages was permissible impeachment evidence in response to Northrup's testimony that she had never indicated to Emily that she believed Dile was guilty.

3 Kentucky Rules of Evidence.

Impeachment by prior inconsistent statement is a common technique used to discredit witness credibility. "A statement is inconsistent . . . whether the witness presently contradicts or denies the prior statement, or whether he claims to be unable to remember it." Brock v. Commonwealth, 947 S.W.2d 24, 27 (Ky. 1997) (citing Wise v. Commonwealth, 600 S.W.2d 470, 472 (Ky. App. 1978)). To introduce a prior inconsistent statement, a proper foundation must first be established, where the witness is "inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it." KRE 613(a). Where a proper foundation is laid, the prior inconsistent statement represents a hearsay exception and may also be received as substantive evidence. KRE 801A(a)(1); Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969). Trial courts have "broad discretion in deciding whether or not to permit the introduction of such contradictory evidence[.]" Wise, 600 S.W.2d at 472. Here, the Commonwealth asked Northrup, "Have you ever indicated to Emily that you believe he was guilty?" Northrup responded, "No, I haven't." The Commonwealth thereafter had Northrup read her text message, "I told him that he was going to have to accept the consequences of what he did and stop whining and crying about it. He is going to have to deal with it and move on,"

and "All of this is so stupid. I told him last night that he's the one that has caused all of this, so just deal with it. This isn't something that I can fix." These statements are inconsistent with Northrup's explicit testimony where she

alleged that she gave Emily no indication she believed Dile was guilty of the charged offenses.

However, Dile is correct in alleging that the Commonwealth did not lay the proper foundation for admission of the two above statements pursuant to KRE 613. Under KRE 613(a),

Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it.

Here, the proper foundation requirements were not satisfied for both statements. While the Commonwealth asked Northrup if the statements were made by her, it did not outline the time or date when the statements occurred. However, per RCr⁴9.24, this Court "will deem an error in the admittance of evidence harmless 'if [it] can say with fair assurance that the judgment was not substantially swayed by the error.'" Saxton v. Commonwealth, 671 S.W.3d 1, 14 (Ky. 2022) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010)).

"Our inquiry is not simply 'whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.'" Brown, 313 S.W.3d at 595 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

4 Kentucky Rules of Criminal Procedure.

Dile offers no indication—and we perceive none—that the simple failure to establish the time or date of the statements resulted in any substantial influence on the jury's verdict. Northrup was still given the opportunity to explain her statements and place them in the proper context. She explained that her first statement related to Dile not paying child support, and the second statement concerned a disagreement between Dile and Emily regarding visitation of the children. While the Commonwealth's failure to establish the time or date of the above statements was technically erroneous, we discern no prejudice arising therefrom and we are assured that the judgment was not substantially swayed by the error.

Next, we note Dile has waived his right to argue on appeal that it was error for the Commonwealth to use the following statements from Northrup to Emily to impeach Northrup:

(1) I think I finally got it through to his head to leave you alone. I told him last night, would you just fucking leave them alone and stay as far away from them as you can. The damage is already done.

(2) I'm getting him in therapy because he definitely needs it.

(3) I was just wondering if you told them that nothing actually happened, would that work? I know that's not what you want to say, but that may be the only thing that will stop this. Just tell them you guys were fighting. All the time the kids wanted him to leave, so they said that so he would have to leave. I'm just trying to think of how to avoid all the legal crap.

(4) I've been thinking about this, and even if you don't want to press charges the state can still pick it up. You really need to be careful what you say. Just tell them that it was gossip that got blown out of proportion.

During a bench conference in which the parties were discussing the statements with the trial court, defense counsel explicitly agreed that the Commonwealth

could ask about statements (1), (3), and (4). Further, at the end of the bench conference, the trial court noted that there had been no objection to statements (1), (2), (3), and (4), and defense counsel did not disagree. During Northrup's testimony, defense counsel did, however, raise a procedural objection to the manner in which the Commonwealth presented text messages (3) and (4) to Northrup, as the Commonwealth did not first ask whether Northrup had sent the text messages. Following a bench conference, the Commonwealth rephrased its questions, and defense counsel raised no further objection. This Court has repeatedly recognized the difference between unpreserved errors and waived, or forfeited, errors. Howard v. Commonwealth, 595 S.W.3d 462, 475 (Ky. 2020). "When, as here, a party not only forfeits an error by failing to object to the admission of evidence, but specifically waives any objection, the party cannot complain on appeal that the court erroneously admitted that evidence." Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014). "[I]nvited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review." Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011) (citing United States v. Perez,

116 F.3d 840 (9th Cir. 1997)). Here, Dile specifically waived any objection to the above statements during the bench conference when he either explicitly agreed to their propriety or expressed no disagreement with the trial court's statement that there were no objections to the text messages. While Dile did raise a procedural objection to the manner in which the Commonwealth questioned Northrup regarding statements (3) and (4), the Commonwealth

thereafter rephrased and the parties proceeded with no further objections. See Leger, 400 S.W.3d at 752. In turn, we hold that any alleged error as to these text messages was waived, rather than unpreserved, and therefore we decline to review it.

Dile's final argument regarding Northrup's testimony is that the Commonwealth called Northrup as a witness solely to impeach her with otherwise inadmissible text message evidence. Pursuant to KRE 607, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." It is true that "[a]lthough a party can impeach his own witness, he cannot knowingly elicit testimony from a witness as a guise or subterfuge in order to impeach the witness with otherwise inadmissible testimony." Tigue v. Commonwealth, 600 S.W.3d 140, 150-51 (Ky. 2018) (quoting Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky. 1997)). However, we cannot agree that the Commonwealth called Northrup as a witness solely to impeach her with otherwise inadmissible evidence. At the beginning of Northrup's testimony, the Commonwealth clearly asked a series of questions establishing the close relationship she had with Dile and Emily. Northrup had unique insight and observations of their relationship. Indeed, Emily even lived with Northrup for a period of time after Emily moved to Bowling Green. Northrup's testimony here was relevant to provide important context regarding Emily and Dile's relationship, and it was not unduly prejudicial toward Dile. For these reasons, we cannot say that the trial court abused its discretion in permitting Northrup's testimony.

B. The trial court did not err in denying Dile's motions for directed verdicts of acquittal on the charges of first-degree sodomy and first- degree unlawful transaction with a minor.

Dile argues that he was entitled to directed verdicts of acquittal on the charges of first-degree sodomy and first-degree unlawful transaction with a minor. We first address Dile's lack of preservation as to these motions. We delineated the specific requirements for preserving a directed verdict issue for appeal in Ray v. Commonwealth:

[W]e now hold that in order to preserve an alleged directed verdict issue for appeal, criminal defendants must: (1) move for a directed verdict at the close of the Commonwealth's evidence; (2) renew the same directed verdict motion at the close of all the evidence, unless the defendant does not present any evidence; and identify the particular charge the Commonwealth failed to prove, and must identify the particular elements of that charge the Commonwealth failed to prove.

611 S.W.3d 250, 266 (Ky. 2020). Here, at the close of the Commonwealth's case, Dile moved for a general directed verdict on all counts before raising specific arguments regarding the separate counts. However, those arguments had no relation to the arguments Dile now raises on appeal. In renewing his motion at the close of all the evidence, Dile simply renewed his motion "based on previous statements." Dile did not provide any further explanation as to which specific elements the Commonwealth failed to prove. Based on the standard set forth in Ray, Dile's motions for directed verdicts on the charges of first-degree sodomy and first- degree unlawful transaction with a minor were insufficient to preserve this issue for appellate review.

Because this alleged error is unpreserved, we will only review for palpable error pursuant to RCr 10.26. Pursuant to RCr 10.26, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." In general, a palpable error affects the substantial rights of a party only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth,

160 S.W.3d 744, 762 (Ky. 2005). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, or unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth,

207 S.W.3d 1, 4 (Ky. 2006). This Court stated the standard for directed verdicts in Commonwealth v. Benham:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

816 S.W.2d 186, 187 (Ky. 1991). "So long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant's motion for directed verdict should be denied." Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020). "On appellate review, the test of a directed verdict

is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Benham, 816 S.W.2d at 187.

We first address Dile's argument that he was entitled to a directed verdict on the charge of first-degree sodomy. Under KRS⁵510.070(1)(a), an individual is guilty of first-degree sodomy when "[h]e engages in deviate sexual intercourse with another person by forcible compulsion[.]" On appeal, Dile alleges that the Commonwealth failed to prove the "forcible compulsion" prong. Pursuant to

KRS 510.010(2),

"Forcible compulsion" means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition[.] In determining whether the victim felt threatened to engage in sex or feared harm from the attacker, a subjective test is applied from the perspective of the victim. Newcomb v. Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013). Sufficient evidence of forcible compulsion is presented to the jury if, "[t]aking into consideration all of the circumstances, the jury could believe beyond a reasonable doubt that the [alleged victim] was terror-stricken at the time she submitted to [the defendant]." Id. (quoting Salsman v. Commonwealth, 565 S.W.2d 638, 642 (Ky. App. 1978)).

5 Kentucky Revised Statutes.

Here, M.R.'s testimony clearly provided sufficient evidence of forcible compulsion for first-degree sodomy. M.R. testified that Dile called her into his bedroom and had her take her pants off. Dile then began touching M.R.'s vagina with his fingers. M.R. testified that she "asked him to stop multiple times." Despite M.R.'s repeated pleas for Dile to stop, he stated, "Just let me do this," and put his mouth on her vagina. M.R. testified that, "After a few seconds of that, I kicked and fought with all of my force to get away." After M.R. got away from Dile, she attempted to barricade herself in the bathroom by sitting against the door. M.R. testified that "Dile forced himself into the bathroom anyway by pushing it open. He then sat next to me and apologized numerous times as I was sitting there holding my legs, crying into my legs."

Based on the evidence presented at trial, the trial court properly submitted the question of forcible compulsion to the jury. In the light most favorable to the Commonwealth, the evidence showed that Dile used force by ignoring M.R.'s repeated pleas for him to stop. Further, although physical resistance by the victim is not necessary, M.R. testified that she "kicked and fought with all [her] force to get away." Sufficient evidence existed for the jury to determine that M.R. subjectively felt threatened to submit to Dile. Accordingly, Dile was not entitled to a directed verdict because, under the evidence, it was not clearly unreasonable for the jury to find him guilty of first- degree sodomy. No error occurred, let alone palpable error resulting in manifest injustice.

We turn next to Dile's argument that he was entitled to a directed verdict on the charge of first-degree unlawful transaction with a minor. Pursuant to KRS 530.064(1)(a), "[a] person is guilty of unlawful transaction with a minor in the first degree when he or she knowingly induces, assists, or causes a minor to engage in . . . [i]llegal sexual activity[.]" As we have explained:

"To induce" "signifies a successful persuasion; that the act has been effective and the desired result obtained," and that "'to engage' denotes action and means 'to employ one's self; to take part in.'"

"Thus, to complete the offense, the minor must consent to and actively participate in the activity."

Combs v. Commonwealth, 198 S.W.3d 574, 578 (Ky. 2006) (overruled on other grounds by Ray, 611 S.W.3d at 265) (internal citations omitted). M.R. testified that Dile perpetrated various instances of sexual abuse against her. In particular, M.R. testified that Dile would frequently enter the bathroom while she was showering. Dile would pull back the shower curtain to look at M.R., and he would sometimes touch her breast during this time. This would occur approximately three times a month. When describing an incident during which Dile had touched her breast, M.R. testified, [Dile] told me that if I just let him one time that he wouldn't ever do it again. And so, once I was willing to let him do it because he said that it wouldn't ever happen again and I'm young and I thought that maybe if he was saying that that it wouldn't ever happen again. The Commonwealth then asked, "Did you consent to allow it to happen on that occasion?" M.R. responded, "I did."

Dile alleges that while the Commonwealth elicited M.R.'s testimony that she consented to Dile touching her breast, there was no testimony regarding

"active participation," and he is therefore entitled to a directed verdict on that

ground. We disagree. At the time the events at issue took place, M.R. was under the age of sixteen. In Combs, this Court held that to complete the offense of first-degree unlawful transaction with a minor, "the minor must consent to and actively participate in the activity." 198 S.W.3d at 578. However, we accompanied this statement with a footnote, wherein we explained, "'Consent,' as used here, does not mean 'legal consent.' The law deems a person under the age of sixteen to be incapable of consent. KRS 510.020(3)(a). As used here, it means 'to willingly engage in' the activity." Id. at 578 n.2. In turn, the Commonwealth only needed to prove that M.R. willingly engaged in the activity. With M.R.'s testimony that she consented to Dile touching her breast, the Commonwealth clearly met its burden to produce "more than a mere scintilla of evidence to support the [charge.]" Taylor, 617 S.W.3d at 324. Accordingly, the trial court did not err in denying Dile's motion for a directed verdict on this charge.

C. Dile waived his challenges to the trial court's jury instructions.

Dile raises two distinct issues regarding the trial court's jury instructions. First, Dile argues that he was subjected to a constitutional and statutory double jeopardy violation when he was convicted of unlawful transaction with a minor in the first degree (Instruction No. 6) and one count of first-degree sexual abuse (Instruction No. 7) for the same act. Second, Dile alleges that it was error for the trial court to proceed on three counts of first- degree sexual abuse as to M.R. where one count was as a "continuing course of conduct" covering the same time period as the two specific act counts.

The Commonwealth contends that Dile's arguments are not subject to appellate review because he waived that argument by affirmatively agreeing to the instructions that were ultimately submitted to the jury. We agree. Pursuant to RCr 9.54(2), a party is not entitled to challenge "the giving or the failure to give" a particular jury instruction unless that party has first

"fairly and adequately" presented his or her position to the trial court "by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection." A party's failure to properly present his or her arguments to the trial court for its initial consideration in accordance with RCr 9.54(2) operates as a complete bar to any form of appellate review. Martin, 409 S.W.3d at 346. However, where the defendant's assignment of error is not that a particular instruction should or should not have been given, but rather that the trial court's instruction to the jury was "incorrectly stated" or "defective," appellate review of that claim may still be appropriate under RCr 10.26. Id. Indeed, unpreserved allegations of unanimous verdict violations occasioned by the trial court's instructions are generally subject to palpable error review. See, e.g., Johnson v. Commonwealth,

676 S.W.3d 405, 417 (Ky. 2023). There is a distinction, however, between a simple lack of preservation and "waiver" in the context of double jeopardy issues. Sexton v. Commonwealth,

647 S.W.3d 227, 231 (Ky. 2022). "Generally, a party is estopped from asserting an invited error on appeal." Quisenberry, 336 S.W.3d at 37 (citing Gray v.

Commonwealth, 203 S.W.3d 679 (Ky. 2006)). "Invited errors amount to a waiver and are not subject to appellate review." Webster v. Commonwealth, 438 S.W.3d 321, 324 (Ky. 2014) (citing Thornton v. Commonwealth, 421 S.W.3d 372, 376-77 (Ky. 2013)). A party is deemed to have invited an error, and to have therefore waived any assignment of error, when that party's actions amount to a "knowing relinquishment of a right[.]" Quisenberry, 336 S.W.3d at 38 (citing Perez, 116 F.3d at 840). A party is deemed to have waived any appellate challenge to a trial court's jury instructions by tendering

"instructions that are substantially similar to those ultimately given by the trial judge," Rudd v. Commonwealth, 584 S.W.3d 742, 746 (Ky. 2019) (quoting Webster, 438 S.W.3d at 324), or by "expressly agreeing" to those instructions at trial. Sanchez v. Commonwealth, 680 S.W.3d 911, 930 (Ky. 2023). Dile first argues that right to be free from double jeopardy was violated when the jury convicted him of first-degree unlawful transaction with a minor and first-degree sexual abuse based on the same conduct—when M.R. agreed to allow him to touch her breast. However, during a bench conference at the end of the first day of trial, the parties explicitly discussed whether this conduct could satisfy both charges without violating the bar against double jeopardy. The trial court stated:

I think that conduct right there where she ultimately did consent is exactly what the statute of unlawful transaction with a minor would involve assuming the jury believes that happened. I think that would be unlawful transaction with a minor under the statute because it would be an inducement to do something, and the complainant witness consented to it. So, I think that would go on that and obviously since Yates [v. Commonwealth, 539 S.W.3d 654 (Ky.

2018)] is clear it's not double jeopardy, it could also go on the sexual abuse grounds.

The Commonwealth indicated its agreement, and Dile's defense counsel explicitly stated, "I agree." Not only did Dile simply fail to mount an objection to the trial court's instructions, but he also expressly voiced his agreement to the trial court's suggestion regarding the instructions. Dile's agreement with the trial court's explanation was tantamount to an acceptance of the trial court's instructions and evinces a knowing and voluntary relinquishment of his rights. Accordingly, we hold that Dile has waived his ability to challenge these particular instructions on appeal.

We turn next to Dile's argument that it was error for the trial court to proceed on three counts of first-degree sexual abuse as to M.R. where one count was as a "continuing course of conduct" covering the same time period as the two specific act counts. Dile concedes that this error is unpreserved and requests palpable error review pursuant to RCr 10.26. However, the Commonwealth again notes that Dile has waived this issue. Applying the above principles, we again agree with the Commonwealth.

Similar to its handling of the first-degree unlawful transaction with a minor and first-degree sexual abuse charges, the trial court also engaged in extensive discussions with the parties regarding how to instruct on the two specific instances of sexual abuse and on Dile's continuing course of conduct. During the bench conference, the trial court stated:

Could you not give two instructions of the sexual abuse involving the particular acts and then do a third instruction which would basically mirror these instructions except for the difference about

the age and make sure that the instruction is worded that it would have to be two additional acts they agree upon, other than the two provided for in instructions "X" and "X"?

Both the Commonwealth and defense counsel nodded affirmatively and expressed their agreement with the trial court. Defense counsel even stated,

"Yes, that's exactly right, I think." After this bench conference, the trial court thereafter drafted the following instructions in accordance with its statement:

INSTRUCTION NO. 7

FIRST DEGREE SEXUAL ABUSE

You will find Kenny Dile, Jr. guilty of First Degree Sexual Abuse under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That at North Central Avenue in Taylor County, Kentucky, between August 7, 2016, and August 6, 2018, and before the finding of the Indictment herein, Kenny Dile, Jr. subjected [M.R.] to sexual contact by touching her breast in the shower after asking permission and advising [M.R.] it would be the last occurrence;

AND

B. That at the time of such occurrence, [M.R.] was then less than 16 years of age;

AND

C. That at the time of such occurrence, Kenny Dile, Jr. was 21 years of age or older.

INSTRUCTION NO. 8

FIRST DEGREE SEXUAL ABUSE

You will find Kenny Dile, Jr. guilty of First Degree Sexual Abuse under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That at North Central Avenue in Taylor County, Kentucky, between August 7, 2016, and August 6, 2018, and before the finding of the Indictment herein, Kenny Dile, Jr. subjected [M.R.] to sexual

contact by touching her vagina in his bedroom during the same encounter when he engaged in deviate sexual intercourse with her;

AND

B. That at the time of such occurrence, [M.R.] was then less than 16 years of age;

AND

C. That at the time of such occurrence, Kenny Dile, Jr. was 21 years of age or older.

INSTRUCTION NO. 9

FIRST DEGREE SEXUAL ABUSE

You will find Kenny Dile, Jr. guilty of First Degree Sexual Abuse under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That at North Central Avenue in Taylor County, Kentucky, between August 7, 2016, and August 6, 2018, and before the finding of the Indictment herein, Kenny Dile, Jr. engaged in a continuing course of conduct resulting in his subjecting [M.R.] to sexual contact no less than two times other than the two occasions referenced in Instructions Numbers 7 and 8, with the jury in unanimous agreement on the additional two acts occurring during that timeframe;

AND

B. That at the time of such contact [M.R.] was less than 14 years of age.

Dile's explicit statement, "Yes, that's exactly right, I think," in response to the trial court's suggested course of action regarding the above instructions evinced a knowing and voluntary relinquishment of his rights. Dile cannot now claim error. In turn, we hold that he has also waived his ability to challenge these instructions on appeal.

D. The trial court did not err in denying Dile's motion for a mistrial.

Dile alleges that he was denied a fair trial after E.D. testified to information that the trial court had previously ruled was inadmissible in pretrial proceedings. Prior to trial, the trial court determined that while the Commonwealth would be permitted to introduce evidence attributing the victims' delayed reporting to prior acts of abuse in the family, it would not be allowed to identify Dile's father as the perpetrator of that abuse. At trial, E.D. testified that Dile touched her inappropriately while she showered. E.D. recounted how Dile eventually stopped, and E.D. was able to finish her shower. She then walked downstairs in her towel to find clothes. Dile followed E.D. downstairs. E.D. testified that A.D. held up a blanket to shield E.D. from Dile as E.D. got dressed. It was at this point in E.D.'s testimony that the Commonwealth asked, "And then what happened?" E.D. answered the question by stating, "[Dile] sat us down and told us how much he loved us and that he would never do what his dad did." Neither party objected. The Commonwealth immediately asked, "How much he loved you, and what?"

Before E.D. could respond, the trial court called the parties to the bench. Both attorneys admitted that they had not heard the end of E.D.'s answer. The trial court relayed what E.D. had said, and Dile moved for a mistrial.

"The decision to declare a mistrial is properly within the sound discretion of the trial court." Gray v. Commonwealth, 480 S.W.3d 253, 273 (Ky. 2016).

"Although a trial court is vested with discretion in granting a mistrial, the power to grant a mistrial ought to be used sparingly and only with the utmost

caution, under urgent circumstances, and for very plain and obvious causes."

Commonwealth v. Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir.1991)). Indeed, a mistrial is "an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action[.]" Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010). A manifest necessity is an "urgent or real necessity" that is determined based on a consideration of the totality of the circumstances. Scott, 12 S.W.3d at 684; see also Cardine v. Commonwealth,

283 S.W.3d 641, 648 (Ky. 2009). Simply put, "[t]he error must be 'of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by grant of a mistrial].'" Bray, 177 S.W.3d at 752 (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)). In turn, a ruling declaring a mistrial will not be disturbed absent an abuse of discretion by the trial court. Id.

"When deciding whether there is manifest necessity to declare a mistrial, we must look to see if either parties' right to a fair trial has been infringed upon." Radford v. Lovelace, 212 S.W.3d 72, 80 (Ky. 2006), overruled on other grounds by Cardine, 283 S.W.3d at 647. To do this, the court must examine the jury's reaction to what has actually been uttered or presented to them. The circumstances must be scrutinized from the jury's point of view, not the court's. The court has much more information than the jury, often providing much-needed context to otherwise innocuous statements. It is the prejudice that is of import in making the mistrial decision; if the jury's perception has been so greatly affected by the conduct that proceeding would be unfair,

then a mistrial would be appropriate. But, if an otherwise flagrant violation of a court order leaves the jury merely unaffected, or is cured by admonition, then a mistrial is improper, even given a party's impermissible breach of court order. Notably, even an attorney's attempt to prejudice a jury does not always equate to actual prejudice; it is the presence of real and tangible prejudice that creates the need for a mistrial.

Commonwealth v. Padgett, 563 S.W.3d 639, 647 (Ky. 2018) Here, there was no manifest necessity for the declaration of a mistrial. During its conversation with the parties at the bench, the trial court noted that the jury had likely not heard E.D.'s answer to the question, especially given that the parties themselves had not heard it either. We cannot say that E.D.'s brief and mumbled response that Dile "would never do what his dad did" was an error "'of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by grant of a mistrial].'" Bray, 177 S.W.3d at 752 (quoting Gould, 929 S.W.2d at 738). Furthermore, based upon the fact that the parties did not hear E.D.'s answer and the trial court's subsequent observation that the jury also likely did not hear E.D.'s answer, it is clear that "the jury's perception [was not] so greatly affected by the conduct that proceeding [was] unfair[.]" Padgett, 563 S.W.3d at 647. In turn, the trial court did not abuse its discretion in denying Dile's motion for a mistrial.

E. Detective Ford's testimony referencing Dile's right to remain silent did not constitute palpable error.

Next, Dile argues that his Fifth Amendment right against self- incrimination was violated when the trial court failed to exclude a statement by

the lead investigator which improperly referenced his assertion of his right to remain silent. Dile concedes this issue is unpreserved and requests review pursuant to RCr 10.26.

Pursuant to RCr 10.26, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." In general, a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst, 160 S.W.3d at 762. An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, or unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin, 207 S.W.3d at 4.

Detective James Ford of the Kentucky State Police was the lead investigator on the case. At trial, Det. Ford testified that he was asked to work on the case due to the allegations stemming from actions in both Taylor County and Green County. Following his assignment to the case, Det. Ford arranged for A.D. and E.D. to be interviewed at a Children's Advocacy Center in Lexington. The Commonwealth asked Det. Ford further questions about the CAC interview process before eliciting the following testimony at issue:

Commonwealth: Okay, and what else did you do as part of your investigation in this matter?

Det. Ford: I did another follow-up interview on the fifth day of January with [E.D.], excuse me, with Emily []. I attempted to

interview Mr. Dile as well. However, prior to conducting an interview, [defense counsel] reached out to me and said that he informed his client not to speak with me.

Dile alleges that Det. Ford's testimony violated Dile's pre-arrest, pre-Miranda⁶ invocation of his right to remain silent. We disagree.

In Baumia v. Commonwealth, 402 S.W.3d 530, 538 (Ky. 2013), this Court held that a pre-arrest, pre-Miranda warning invocation of rights by a suspect is inadmissible in the Commonwealth's case-in-chief if official compulsion was present in extracting the invocation. We explained,

both the Fifth Amendment and Section 11 [of the Kentucky Constitution] state that an individual cannot be "compelled" to incriminate herself. Thus, official compulsion must be present in order for the privilege against self-incrimination to attach. See Jenkins [v. Anderson], 447 U.S. [231,] 241, 100 S. Ct. 2124 [(1980)] (Stevens, J., concurring) ("[T]he privilege against compulsory self- incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak."). Id.

Here, with regard to whether there was official compulsion for Dile to incriminate himself, the parties do not dispute that Dile was not in custody nor that Dile had not yet been informed of his rights. Indeed, Dile's own argument that "[a] defendant's pre-arrest, pre-Miranda invocation of their Fifth Amendment right to remain silent arising out of official compulsion may not be used in the Commonwealth's case-in-chief" seems to concede this fact. During his testimony, Det. Ford does not mention how he attempted to interview Dile. However, based on the detective's testimony that "prior to conducting an

6 Miranda v. Arizona, 384 U.S. 436 (196 6 ).

interview, [defense counsel] reached out to me and said that he informed his client not to speak with me," it is reasonable to presume the entirety of the interaction happened virtually or over the phone. The simple act of attempting to reach out to a defendant, absent any level of coercion, cannot be said to rise to the level of official compulsion necessary for the attachment of the privilege against self-incrimination. In turn, because Dile's silence did not arise in response to any official compulsion, we cannot say that the detective's testimony was improper.

However, even if Det. Ford's testimony was erroneous, it definitely does not rise to the level of palpable error. See Hunt v. Commonwealth, 304 S.W.3d 15, 37 (Ky. 2009) ("[W]e are not persuaded that the single reference to Hunt's invoking his right to remain silent resulted in palpable error."). Given the brevity of Det. Ford's statement and the evidence presented by the Commonwealth, it is clear beyond a reasonable doubt that the jury's verdict would have been the same in the absence of Det. Ford's statement and manifest injustice did not occur.

F. The trial court did not err in allowing the Commonwealth to introduce evidence of Dile's similar acts against M.R. in Green County.

Dile alleges that the trial court improperly admitted evidence of Dile's sexual abuse of M.R. in Green County under KRE 404(b), thereby causing him to suffer substantial prejudice at trial.

Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence."

KRE 401. Under KRE 402, "[a]ll relevant evidence is admissible" unless otherwise excluded by the law or our rules of evidence. However, even relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403. Unduly prejudicial evidence has been defined as evidence that "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case[.]" Richmond v. Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017) (quoting Butler v. Commonwealth, 367 S.W.3d 609, 615 (Ky. App. 2012) (internal quotation marks omitted)). Despite these general rules regarding relevance, "a defendant may not be convicted on the basis of low character or criminal predisposition, even though such character or predisposition makes it appear more likely that the defendant is guilty of the charged offense." Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992). Thus, under KRE 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The purpose of this Rule is to avoid an unfair inference that a person's character as demonstrated by the commission of other bad acts indicates he likely also engaged in bad acts relevant to the case. Gasaway v. Commonwealth, 671 S.W.3d 298, 333-34 (Ky. 2023) (citing KRE 404(a)).

However, KRE 404(b) provides two exceptions in which evidence of other crimes, wrongs, or acts may be admissible. First, other bad acts evidence may be admissible if offered to prove something other than an impermissible inference on the basis of character, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." KRE 404(b)(1). Second, such evidence may also be admissible if it is

"so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party." KRE 404(b)(2).

In Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994), we set forth the three factors that a trial court must consider in determining whether to admit evidence of other crimes, wrongs, or acts under KRE 404(b): relevance, probativeness, and prejudice. As to relevance, the trial court must consider whether the proffered evidence is relevant for some purpose other than to prove the defendant's criminal disposition. Id. at 889. As to probativeness, the trial court must consider whether there is sufficiently probative evidence that the defendant committed the other crime, wrong, or act. Id. at 890. Finally, in considering prejudice, the trial court must determine whether the potential prejudice from the admission of the proffered evidence substantially outweighs its probative value. Id. In considering these factors, the trial court "must apply [KRE 404(b)] cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime." Id. at 889.

We review evidentiary rulings under KRE 404(b) for abuse of discretion. Gasaway, 671 S.W.3d at 334. An abuse of discretion occurs when "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.

Here, the Commonwealth filed a KRE 404(c) notice of its intent to offer evidence of Dile's other sexual abuse perpetrated against M.R. in Green County. Dile objected to the introduction of the 404(b) evidence, claiming that it had little probative value, and that its probative value was substantially outweighed by the prejudicial impact. The trial court disagreed. It applied the three-prong test from Bell and ruled that the evidence was admissible, as it demonstrated a continuing course of conduct, and it was inextricably intertwined with the criminal acts for which Dile was charged. We agree with the trial court.

This Court has "definitively held" that "evidence of similar acts perpetrated against the same victim are almost always admissible[.]" Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008). Applying this principle here, M.R. was the victim in both cases. The sexual abuse perpetrated against M.R. by Dile in Green County took place from 2012 until 2016. It is inextricably intertwined with the charges levied against Dile in the present matter, and it is therefore both relevant and probative. We note:

This case involves extrinsic acts perpetrated not against an

"extrinsic" victim, as it were, but rather against the same person allegedly the victim of the crimes for which the defendant is being tried. Evidence of similar acts perpetrated against the same victim, we have noted many times, is "almost always admissible," under

KRE 404(b), because it will almost always be significantly probative of a material issue aside from the defendant's character. Jenkins v. Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016) (citations omitted). Furthermore, the Commonwealth is permitted to fully explain the relationship between the parties, and the jury is entitled to see the full picture. See Howard,

595 S.W.3d at 481. Thus, the trial court did not err in its decision to admit the 404(b) evidence in question.

G. Reversal is not required under the cumulative error doctrine.

Dile argues that his convictions should be reversed on the basis of cumulative error. The cumulative error doctrine states that where there are

"multiple errors, although harmless individually, [the errors] may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair."

Brown, 313 S.W.3d at 631.

Dile claims that if the asserted errors do not individually warrant reversal, then the cumulative effect of the errors requires reversal. We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial. See Funk v. Commonwealth,

842 S.W.2d 476, 483 (Ky. 1992). The only error in this case was the Commonwealth's failure to comply with the requirements of KRE 613 prior to having Northrup read aloud two of her text messages. Northrup was, however, still permitted to explain her statements and place them in the proper context. As a result, the simple failure to establish the time or date of the statements did not have substantial

influence on the jury's verdict. Consequently, the cumulative error doctrine does not apply.

H. The trial court did not err in permitting A.D. to give a victim impact statement at sentencing.

Finally, Dile argues that the trial court erred in permitting A.D., who he alleges was not a "victim" as statutorily defined by KRS 421.500, to give a victim impact statement during Dile's sentencing hearing. Dile concedes that this error is unpreserved and requests palpable error review pursuant to RCr

10.26.

After the jury returned its verdict, it recommended that Dile receive a fifteen-year sentence for incest, fifteen-year sentence for first-degree sodomy, fifteen-year sentence for first-degree unlawful transaction with a minor, three- year sentence for each of the three first-degree sexual abuse offenses as to M.R., and five-year sentence for the first-degree sexual abuse as to E.D. The jury recommended that Dile serve his sentences consecutively for an aggregate sentence of fifty-nine years' imprisonment. After the trial court received the jury's sentencing recommendation, it set the subsequent date for final sentencing.

At Dile's final sentencing, on January 16, 2024, the trial court permitted four individuals to read written victim impact statements: M.R., E.D., A.D., and Emily. On appeal, Dile argues that M.R., E.D., and Emily were the only individuals permitted to give impact statements under KRS 421.500(1)(a).

KRS 421.520(1) states that the "victim has the right to submit a written victim impact statement to the probation officer responsible for preparing the presentence investigation report for inclusion in the report or to the court should such a report be waived by the defendant." A "victim" is defined as "an individual directly and proximately harmed as a result of . . . [t]he commission of a crime classified as a felony[.]" KRS 421.500(1)(a)(1). The statute further provides,

If the victim is a minor, incapacitated, or deceased, "victim" also means one (1) or more of the victim's spouse, parents, siblings, children, or other lawful representatives which shall be designated by the court unless the person is the defendant or a person the court finds would not act in the best interests of the victim. KRS 421.500(1)(a).

Here, M.R. and E.D., as the individuals directly harmed as a result of Dile's actions, were clearly victims for purposes of KRS 421.500(1)(a)1. Emily, as the mother of E.D., who was still a minor at the time of sentencing, was also permitted to give a victim impact statement pursuant to KRS 421.500(1)(a). The question, therefore, is whether allowing A.D., who is a sibling of M.R. and E.D., to give a victim impact statement constituted palpable error. We cannot say that it did given that the plain language of KRS 421.500(1)(a) authorizes "one

(1) or more of the victim's . . . siblings" to give an impact statement where the victim is a minor. Furthermore, "[t]he purpose of [KRS 421.500] was to ensure that certain rights were provided for a particular class of victims, not to limit any rights or protections a trial court might choose to provide for other classes of victims." Sherroan v. Commonwealth, 142 S.W.3d 7, 24 (Ky. 2004). As a

result, the trial court retains "the discretion to consider other impact statements from other individuals affected by the crime." Id. A.D. lived with M.R. and E.D. during the period of the abuse. Further, she has maintained a close relationship with M.R. and E.D. and has witnessed firsthand the impact Dile's actions had on them. As a result, we cannot say that the trial court erred in permitting A.D. to give a victim impact statement.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All sitting. All concur.

COUNSEL FOR APPELLANT:

Molly Mattingly

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Kentucky Attorney General James D. Havey

Assistant Solicitor General

Kenny Dile, Jr. v. Commonwealth of Kentucky

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