IMPORTANT NOTICE
"NOT TO BE PUBLISHED OPINION"
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED" PURSUANT TO RULE OF APPELLATE
PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT
BE CITED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE.
UNDER RAP 41, UNPUBLISHED OPINIONS OF
KENTUCKY APPELLATE COURTS RENDERED
AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER
RAP 40(G), MAY BE CITED BY A PARTY FOR
CONSIDERATION BY A COURT IF THERE IS NO
PUBLISHED OPINION THAT ADEQUATELY
ADDRESSES THE POINT OF LAW BEING ARGUED
BY A PARTY.
IF AN UNPUBLISHED OPINION IS CITED FOR
CONSIDERATION BY A COURT THE OPINION SHALL
BE SET OUT AS AN UNPUBLISHED OPINION IN THE
DOCUMENT IN WHICH THE UNPUBLISHED
OPINION IS CITED.
1
RENDERED: JUNE 25, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0054-MR
JAMES ALDEN SAINT APPELLANT
V.
ON APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
NO. 21-CR-00021
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Following a two-day trial, a Daviess County jury convicted Appellant, James Alden Saint ("Saint"), of one count of second-degree rape and three counts of first-degree sexual abuse. He was sentenced in accordance with the jury's recommendation to twenty years of incarceration. Saint now appeals as a matter of right. See KY. CONST. § 110(2)(b). Having reviewed the record, the arguments of the parties, and the applicable law, we affirm the Daviess Circuit Court.
BACKGROUND
The events giving rise to the facts of the case took place in July 2020. Saint lived in an apartment with his three children, whose ages ranged from three to eight years of age, and a friend, Rudy Galloway. Saint lived in a two- story apartment, with the living room and kitchen downstairs and the three
2
2
bedrooms and bathroom upstairs. The children shared a bedroom, and Rudy and Saint each had a bedroom of their own. Around the local neighborhood, Saint was commonly viewed as the "neighborhood dad." M.H., a thirteen-year- old who had befriended Saint's children when she lived in the same apartment complex as Saint, often spent time with Saint's children. In July 2020, Saint asked M.H.'s stepmother, Kelsi, if M.H. could spend the weekend with him and his children and go to the lake. Kelsi agreed. Saint and his children picked up M.H. from her home that Friday morning before meeting up with several other adults at the lake. In total, the group of lake- goers included Saint, his three children, M.H., Rudy, Michelle (Saint's ex- girlfriend), and Michelle's two children. After spending the day at the lake, the group returned to Saint's apartment, got cleaned up, then gathered in the living room to watch a movie.
M.H. testified at trial that after the other children went to sleep, she went to Saint's room to play Grand Theft Auto, a video game. M.H. sat in a large recliner. Michelle later came into the room and laid down on a pile of clothes because there was no bed. Around 10:00 p.m. to 11:00 p.m., Saint also joined, and he became "super touchy" towards M.H. He touched her thigh, then touched her stomach and breasts underneath her shirt and bra. He left the room but returned around 2:00 a.m. or 3:00 a.m., while M.H. was still playing video games. Saint again was "super touchy," touching M.H.'s stomach before removing her shorts and underwear. He proceeded to touch M.H.'s vagina and digitally penetrate her. M.H. told Saint to stop several times and tried pushing
3
3
him away with her feet. Saint then told M.H. to put her hand on his penis, to which she complied, and asked M.H. to "jerk him off." M.H. told Saint that she did not want to, and Saint responded that that was okay and that he would not force her. M.H. did not alert Michelle because she was afraid Saint would hurt her. She finished the weekend at Saint's home without further incident and returned to her home on Sunday. M.H. denied returning to the lake that weekend.
M.H. did not tell anyone what had happened until about a month later, when she told Kelsi. Kelsi took M.H. to the Owensboro Police Department to report the events. M.H. later underwent a forensic interview and examination at the Child Advocacy Center with Dr. Jennifer Liles. Dr. Liles testified that M.H. disclosed that a man touched her over and underneath her clothes, that he put his finger in her vagina, and that he made her touch his penis. M.H.'s physical examination was normal, and her hymen was intact. Michelle also testified at trial. Michelle shares three children with Saint. Around the time of the events in question, Michelle was pregnant with their third child and stayed with Saint at his apartment on the weekends. Michelle recalled the weekend in the summer of 2020 when the group went to the lake and stayed over at Saint's apartment. Between 9:00 p.m. and 10:00 p.m. one night that weekend, she was lying on a pile of clothes in Saint's bedroom watching a movie while Saint and M.H. were sitting on the oversized recliner. She observed Saint put his hand on M.H.'s lap and his fingers between her legs and then move his hand to her stomach and chest area. Michelle attempted to
4
4
alert Saint to the fact that she was still awake as a means of discouraging Saint from touching M.H. by clearing her throat. Saint left the bedroom at one point but then returned to the bedroom, again sitting with M.H. in the recliner. After some time, Saint again touched M.H.'s stomach, chest, and shoulder areas. Michelle engaged Saint and M.H. in conversation in a successful attempt to temporarily disrupt the touching. Michelle then announced that it was time for bed, and M.H. stayed in the recliner while Saint went into the children's bedroom. Michelle did not see Saint touching M.H. inappropriately after that, although around 2:00 a.m. or 3:00 a.m., she heard heavy footsteps but could not discern if they belonged to Saint or Rudy.
Owensboro Police Department Detective Allen Schrecker testified that during his investigation of the allegations, Saint denied the allegations and claimed that the only time he had touched M.H. was to remove a tick from her back at the lake.
Rudy, a United States Navy veteran, retired jailer, and self-proclaimed godparent of Saint, testified that he and Saint lived together during 2020. When people stay over at his home, Rudy is a light sleeper and sleeps with his door open. On the weekend of July 31, 2020, M.H. stayed over, but Rudy did not see anything inappropriate or unusual. He recalled seeing M.H. and Michelle in Saint's bedroom watching movies and Michelle lying on the floor. Saint testified at trial on his own behalf. Saint testified that around the weekend of July 31, 2020, he picked M.H. up and a group of children and adults went to the lake. After coming back from the lake, everyone took
5
5
showers before the children gathered in Saint's bedroom to watch television and play video games. Michelle was downstairs with Rudy. Around 9:40 p.m., Michelle began putting the children to bed. By 10:45 p.m., all children except M.H. were downstairs to sleep for the night. Michelle then went upstairs to Saint's room to lie down on a pallet near M.H. Around 10:35, Saint came upstairs to check on M.H., who asked Saint whether she could play Grand Theft Auto. Saint did not give M.H. permission to play Grand Theft Auto because it was a violent game, and he did not know if her parents would be okay with it. Instead, M.H. played another video game that was not rated
"Mature." Saint sat in a brown chair, M.H. sat in the blue recliner, and Michelle was lying down, awake, on a pallet on the floor. Although Michelle was awake, she did not clear her throat or attempt to engage Saint or M.H. in conversation in any way. Saint denied making any flirty or sexual advances towards M.H. Around 10:55 p.m., Saint went downstairs to get something to drink. He returned upstairs and advised M.H. that her curfew was midnight because the family would be getting up early the next day to go to the lake. Saint then went downstairs to go to sleep. However, a noise awakened him around 3:00 a.m., so he checked on all the children, both downstairs and upstairs, before returning downstairs. At that time, Rudy was asleep and snoring loudly. At 3:20 a.m., he heard Rudy get up to use the bathroom upstairs. He fell back asleep and did not wake up again until morning. On Saturday, the group followed the same routine as the day prior, including going to the lake, with the only notable difference being that M.H. slept in the
6
6
children's room upstairs with one of Saint's daughters instead of in Saint's room. On Sunday, the group again went to the lake, but M.H. did not have her parents' permission to spend another night away, so Saint dropped M.H. off at her home that evening. Two weeks later, M.H. went with the family to the lake again for a day trip, but M.H. did not spend the night this time. While at the lake, M.H. required Saint's assistance to remove a tick from her back, and Saint also grabbed M.H. to keep her from falling after she lost her footing. He only touched her rib area, nowhere near her breast. This day at the lake was the last time that Saint had seen M.H.
The jury ultimately convicted Saint of rape in the second degree, no force, and three counts of sexual abuse in the first degree. The jury recommended eight years' incarceration on the charge of rape in the second degree, no force, and four years on each count of sexual abuse in the first degree. The jury recommended that these charges run consecutively, for a total of twenty years. The trial court adopted the jury's recommendation and sentenced Saint to a total of twenty years' incarceration. This appeal followed.
ANALYSIS
On appeal, Saint alleges three errors: (1) the trial court erred by giving an instruction for second-degree rape as a lesser-included offense to first-degree rape; (2) the trial court erred in allowing Dr. Liles to testify as to what M.H. discussed during M.H.'s physical and genital examination; and (3) the prosecutor committed misconduct during closing arguments by opining on the credibility of witnesses. Each claim of error will be addressed in turn.
7
7
A. It was not an abuse of discretion for the trial court to instruct the jury on second-degree rape.
During discussion about jury instructions, defense counsel initially requested that the jury be instructed on sexual abuse in the first degree as a lesser included offense to rape in the first degree. The Commonwealth requested that the jury be instructed on the lesser included offense of rape in the second degree, reasoning that it was the appropriate instruction if the jury believed Saint digitally penetrated M.H. without using forcible compulsion. Defense counsel argued against a rape in the second degree instruction, stating, "I would ask that we not have a rape second instruction simply because our defense is that this did not happen at all." Defense counsel later withdrew her request for a sexual abuse instruction and asked that the only instruction given be rape in the first degree. The trial court ultimately granted an instruction on rape in the second degree, agreeing with the Commonwealth that the jury could believe that sexual intercourse occurred but that it occurred without physical force or threat of physical force. Defense counsel objected and asked again for an instruction on sexual abuse, which was likewise given. Saint argues now on appeal that it was an abuse of discretion for the trial court to instruct the jury on rape in the second degree because there was insufficient evidence to support such an instruction.
Standard of Review
"Our review of alleged errors in jury instructions differs, depending upon the type of error alleged. When the error arises from giving an unwarranted instruction or failing to give a warranted instruction, we review the decision for
8
8
abuse of discretion." Commonwealth v. Caudill, 540 S.W.3d 364, 366-67 (Ky. 2018) (citing Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). "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). Discussion
"[T]he giving of an instruction on lesser-included offenses when the evidence would permit a jury to rationally find a defendant guilty of the lesser- included offense and acquit him of the greater offense is not erroneous, even if given over the defendant's objection." Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky. 1987). In reviewing a trial court's giving of a criminal offense jury instruction, "we ask whether the evidence would permit a reasonable juror to make the finding the instruction authorizes." Springfield v. Commonwealth,
410 S.W.3d 589, 594 (Ky. 2013). It is well established that the trial court is required to instruct the jury on the "whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Additionally, the trial court is required to
"instruct the jury on all lesser-included offenses which are supported by the evidence."
Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016) (internal citations omitted). "An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Hudson v.
9
9
Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)). Saint was charged with one count of rape in the first degree under a forcible compulsion theory and three counts of sexual abuse in the first degree. As for the count of rape in the first degree, the jury was instructed on both rape in the first degree and the lesser included offense of rape in the second degree. Saint was ultimately convicted of rape in the second degree. A person is guilty of rape in the first degree when he engages in sexual intercourse with another person by forcible compulsion. KRS1510.040.
"'Sexual intercourse' . . . includes penetration of the sex organs of one person by any body part or a foreign object manipulated by another person." KRS
510.010. KRS 510.010 defines "forcible compulsion" as 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[.]
Rape in the second degree, on the other hand, does not require forcible compulsion. A person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person less than fourteen years old. KRS 510.050. Here, given that M.H. was thirteen years old at the time of the offenses, for the instruction of rape in the second degree to be proper, a reasonable jury
10
10
must have been able to find that the evidence supported a finding that sexual intercourse occurred between Saint and M.H. without forcible compulsion. The evidence supports such a finding. Although M.H. testified that she did not attempt to seek help at the time of the offenses because she was afraid that Saint would hurt her, the jury still could have found this portion of the testimony to be either uncredible or to not rise to the threat of physical force required for "forcible compulsion" under KRS 510.010. M.H. did not elaborate on what made her be in fear of Saint. She testified that they had a good relationship up until that point and that she viewed him as a neighborhood dad. While M.H. testified that she told Saint to stop and that she pushed him away with her legs, whether this suffices to meet "physical force or threat of physical force" is a factual question for the jury. A jury also could have found M.H.'s testimony that she resisted Saint's advances to lack credibility. Furthermore, they could have also believed that it took time for M.H. to recognize that she had been assaulted, while at the same time finding her testimony that the assault occurred credible.
Saint argues that M.H.'s testimony was "contradictory, incredible, and inherently improbable" and thus her testimony cannot support a finding of rape in the second degree. He alleges that
[b]ecause the only evidence that may have supported a rape in the second degree instruction was M.H.'s testimony, and an abundance of other evidence presented at trial supported the improbability of her testimony, the trial court erred when it instructed the jury on the lesser included offense of rape in the second degree.
11
11
Namely, Saint points to the fact that M.H. did not attempt to capture the attention or assistance of Michelle, nor did M.H. report to law enforcement or social services during their investigations that Michelle was in the room during the assault. M.H. did not report the incident until several weeks later, and she returned to Saint's home voluntarily after the assault occurred. Rudy testified that he did not see anything inappropriate that night, and Dr. Liles testified that M.H.'s physical examination was normal and did not reveal signs of sexual trauma. Saint also points out inconsistencies in the testimony of witnesses, including moments during M.H.'s testimony that she could not fully recall details of the events. Because of this, according to Saint, "the evidence presented at trial was insufficient to support the trial court instructing the jury on the lesser included offense of rape in the second degree [and] the trial court erred when it instructed the jury on the lesser included offense."
We cannot find an abuse of discretion in the trial court's granting of an instruction merely because the victim's testimony was contradicted by other evidence in the record. It is the responsibility of the jury to make credibility assessments and "to determine the weight and effectiveness of the evidence."
Ross v. Commonwealth, 531 S.W.3d 471, 475-76 (Ky. 2017). Even when a witness' credibility is objectively lacking,2we do not disregard the evidence "as having absolutely no probative value as a matter of law" unless "the testimony
12
12
is so incredible on its face as to require its rejection as a matter of law that the jury will not be permitted to consider it." Id. at 475. Even then, we do so only because "it is the inherent lack of probative value in the testimony itself, not the witness's lack of credibility, that allows the court to disregard it." Id. None of the evidence in this case makes M.H.'s testimony completely improbable, nor does it bring this case outside the typical range of conflicting testimony that criminal courts see every day. This case is not unique in the fact that some evidence bolsters M.H.'s testimony, some evidence contradicts it, but no evidence outright disproves it. It was rightly in the jury's hands to weigh the evidence. Having done so, the jury found that Saint met the elements of rape in the second degree. Ultimately, the trial court did not err in instructing the jury.
B. The trial court did not err in allowing Dr. Liles to testify as to what M.H. discussed during M.H.'s physical and genital examination.
During Saint's trial, Dr. Liles testified that she was previously employed by the Henderson County Child Advocacy Center ("CAC") to assist in investigations involving children who have potentially been abused. Dr. Liles testified that she performed medical histories on children during this process, which she acknowledged was important for medical treatment and diagnoses. She testified that she performed a physical and genital examination of M.H. in September 2020. The Commonwealth asked if a medical history was taken in this case, and if so, what M.H. had disclosed in that history. Defense counsel objected, arguing the testimony was hearsay evidence and asserting that Dr. Liles should testify "exclusively to her physical findings rather than to patient
13
13
disclosures that would implicate that she was sexually abused." The Commonwealth asserted that the testimony should come in under the exception to the hearsay rule as information used for medical treatment or diagnosis. The trial court overruled defense counsel's objection. Dr. Liles went on to testify:
[M.H.] then disclosed today that he — she did name a name — touched her. I asked her to tell me about it, and she stated, "he rubbed all over my back and thighs and on top of my clothes, and then after the other kids were put to sleep, he touched my chest and private area under my clothes. He put his fingers in my 'vagina,' and he also made me touch his private area."
Saint argues that this statement was impermissible bolstering of M.H.'s testimony by Dr. Liles, and that the statement was hearsay not subject to any exception.
Standard of Review
"We shall review the trial court's admission of purported hearsay evidence . . . for abuse of discretion." Mason v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
Discussion
To begin, it is true that this Court has consistently held that witnesses may not bolster the credibility of other witnesses, as credibility is a determination solely reserved for the jury. "It is well-settled that a witness cannot vouch for the truthfulness of another witness. In the context of child sex abuse cases, this Court has repeatedly held that no expert, including a
14
14
medical doctor, can vouch for the truth of the victim's out-of-court statements."
Hoff v. Commonwealth, 394 S.W.3d 368, 376 (Ky. 2011) (internal citations omitted). In Hoff, this Court was concerned with witnesses testifying as to the child's credibility based on the child's demeanor while describing sexual abuse. We specifically said:
This Court has held that social workers and psychologists are not qualified to testify that they believe a child has been sexually abused based on the child's demeanor. However, a physician may in some situations be able to give an opinion that the child has been sexually abused based on physical evidence of abuse, but not based solely on the child's demeanor.
Given that the physical evidence was inconclusive, Dr. Calhoun could not say, based on that evidence alone, that sexual assault had occurred. The most that he could legitimately say was that based on her history, whether true or not, when coupled with the physical findings which were consistent with sexual penetration, there was a reasonable probability that sexual assault had occurred. The distinction is that this language does not profess a belief in the truth of the victim's claims, but instead leaves that question to the jury. Obviously, if the jury does not find her testimony to be credible, then the diagnosis cannot be correct.
Here, the language used by the doctor, "And I have no reason not to believe this child," can create an inference that he does believe her, and thus by its certainty serves to bolster her testimony. It is not appropriate for medical experts to vouch for the truth of a victim's statement, but only to make a diagnosis under stated conditions, which does not require a personal judgment from the doctor as to whether he believes the patient, unless his belief is a necessary part of determining what treatment to use.
Hoff, 394 S.W.3d at 376-77 (citing Hall v. Commonwealth, 862 S.W.2d 321, 322-23 (Ky. 1993)).
However, Hoff is of limited relevance here because, to put it simply, Dr. Liles' statements were not improper bolstering. Unlike the types of bolstering
15
15
discussed in Hoff and elsewhere in our case law, Dr. Liles' statements did not vouch for the credibility of the statements made by M.H. Dr. Liles flatly stated what M.H. told her, and she then stated that, because M.H. alleged penetration, she performed a genital examination of M.H. Saint offers no explanation for how Dr. Liles' testimony bolstered the credibility of M.H.'s testimony other than alleging that Dr. Liles' statement was "purposefully introduced by the Commonwealth through Dr. Liles to not only vouch for the truthfulness of M.H., but to prove the truth of the matter asserted, i.e., that Mr. Saint had raped and sexually abused M.H." Intertwining hearsay allegations with a claim of bolstering does not provide support for a bolstering claim that will not stand on its own. To the extent that Dr. Liles' explanation that a genital exam can reveal trauma to the hymen, which could corroborate a victim's allegations of sexual assault, such could not possibly be considered bolstering here, given that M.H.'s hymen was still intact. In the same vein, Dr. Liles' assertions that a normal genital exam is present in 95 to 96 percent of cases in which penetration has occurred was not bolstering of M.H.'s testimony. Instead, Dr. Liles' testimony only indicated that accusations of penetration are not necessarily disproven by a normal examination, which she acknowledged when she stated that the exam was consistent with M.H.'s disclosure but that the exam itself did not reveal anything. Saint's bolstering claim does not stand, so we turn now to Saint's claim of hearsay.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
16
16
matter asserted." KRE3801. Hearsay evidence is generally not admissible at trial, subject to some exceptions. KRE 802. KRE 803(4) excepts from hearsay rules "[s]tatements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis."
In determining whether a statement falls within the scope of KRE 803(4), it must be determined whether the content of the declarant's statement was of the type "reasonably relied on by a physician in treatment or diagnosis," and arose from the declarant's purpose of promoting treatment. There is little doubt that a statement about recent anal sexual activity is relevant to the "inception or general character of the cause or external source" of an injury to the anus reported to be the product of nonconsensual sex, and is the type of statement that a physician may rely on in treatment or diagnosis. Edmonds v. Commonwealth, 433 S.W.3d 309, 315 (Ky. 2014). Here, the out of court statements in question are M.H.'s disclosures of sexual abuse to Dr. Liles during the medical history. Dr. Liles testified that this disclosure informed her decision to do a genital exam to check for injuries. While Saint claims that "M.H.'s disclosure to Dr. Liles during her physical and genital examination was not pertinent to the treatment or diagnosis of M.H. because M.H. had no physical injuries," it was not known at the time Dr. Liles obtained M.H.'s medical history whether M.H. had injuries. The entire examination, which begins with a comprehensive history, is directed at diagnosing injuries and infections potentially caused by sexual abuse. As for
17
17
Saint's contention that "Dr. Liles was not treating or diagnosing M.H. but rather conducting a routine examination," this is contradicted by Dr. Liles testimony that when signs of an infection are present, she will swab the area and test for infection. When directly asked whether the medical history is important for medical treatment and diagnosis, Dr. Liles stated, "Yes, sir, it is. It is one of the most important."
Ultimately, because M.H.'s disclosure of sexual abuse was subject to the medical treatment and diagnosis exception to hearsay evidence per KRE 803(4), the trial court did not abuse its discretion when it denied defense counsel's objection to the introduction of the testimony.
C. The prosecutor's comments during its closing argument did not amount to error.
During its closing argument, the Commonwealth stated:
Let's talk for one second about what motive Mr. Saint here has to come into this courtroom and lie to you. What's his motive? Well, that's to stay out of prison. Also, when you judge credibility of witnesses, it's what they say and how they act. Their demeanor. Okay? You saw [M.H.]'s demeanor on the stand. You saw her break down. And you got to observe Mr. Saint and what he said. His demeanor. His testimony, which I'm telling you, is rehearsed. At this point, defense counsel objected, stating that Saint's testimony was not rehearsed, and she did not rehearse Saint's testimony with him. The Commonwealth countered that it did not say that defense counsel rehearsed Saint's testimony; instead, the Commonwealth stated that Saint rehearsed his own testimony. The trial court suggested that counsel for the Commonwealth should qualify his statement by indicating that it appears rehearsed to him, not that it is rehearsed. Defense counsel indicated that she would still object to
18
18
the statement and, in addition, ask for a mistrial. The trial court overruled the objection and motion for a mistrial, noting that it was "a fair comment."
The Commonwealth continued its closing argument, encouraging the jury, when assessing credibility, to remember that Saint had a very precise timeline, recalling the exact time of events four years after they occurred. Saint argues on appeal that the statement amounted to prosecutorial misconduct.
Saint further argues on appeal that the Commonwealth opined on the credibility of M.H. during its closing argument, specifically by commenting that she had no motive to lie and was therefore telling the truth. The Commonwealth stated that "if you believe [M.H.] is telling the truth, that is all that is needed for you to convict Mr. Saint." The Commonwealth went on, I think the first question you should all ask yourselves when you retire to the jury room: if [M.H.] is lying, why? There has to be some motive, right? There is no motive in this case for her to lie. . . . And if she has no motive to lie, then she is telling the truth. Unlike the claims related to Saint's credibility, the claims concerning M.H.'s credibility were not preserved at trial and thus may only be reviewed for palpable error.
Standard of Review
When an objection was made at trial
[r]egarding the Commonwealth's statement during closing argument and the charge of prosecutorial misconduct, "we will reverse for prosecutorial misconduct only if the misconduct was 'flagrant' or if we find all of the following to be true: (1) the proof of guilt is not overwhelming, (2) a contemporaneous objection was made, and (3) the trial court failed to cure the misconduct with a sufficient admonition."
19
19
Robinson v. Commonwealth, 647 S.W.3d 136, 141 (Ky. 2022) (citing Dickerson
v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (internal citations omitted)).
"Where there was no objection, we will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010) (citing Barnes v. Commonwealth,
91 S.W.3d 564 (Ky. 2002)). Discussion
We aptly addressed prosecutorial misconduct in Robinson, 647 S.W.3d at
143:
"Prosecutorial misconduct is 'a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.'" Commonwealth v. McGorman, 489 S.W.3d 731, 741-42 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116, 117 (Ky. 2011)). The misconduct can occur in a variety of forms, including improper closing argument. [Dickerson, 485 S.W.3d at 329] (citing [Duncan, 322 S.W.3d at 87]). When considering prosecutorial misconduct, the Court must view the allegation in the context of the overall fairness of the trial. McGorman, 489 S.W.3d at 742. In order for reversal to be justified, the Commonwealth's misconduct must be so serious as to render the entire trial fundamentally unfair. Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (internal quotations and citations omitted). "If the misconduct is objected to, we will reverse on that ground if proof of the defendant's guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury." Duncan, 322 S.W.3d at 87 (citing [Barnes, 91 S.W.3d 564]). Regarding an allegation of prosecutorial misconduct in a closing argument, the Court must consider the argument "as a whole" while remembering that counsel is granted wide latitude during closing argument. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006) (quoting Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2000)). It well-established that counsel may comment on the evidence and make all legitimate inferences that can be reasonably
20
20
drawn from it. Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky.
2010).
On the other hand, a prosecutor is not permitted to vilify the accused. Timmons v. Commonwealth, 555 S.W.2d 234, 241 (Ky. 1977). There is a fine line, however, between vilification and "[t]he legitimate scope of the argument to the jury [which] is affected to some extent by the nature of the evidence[,]" thus, "[o]utrageous conduct warrants stronger words than might otherwise be justified."
Id. As such, this Court has tolerated severe characterizations of defendants previously. See Murphy v. Commonwealth, 509 S.W.3d 34, 53 (Ky. 2017) (referring to the defendant as a "monster"); Dean
v. Commonwealth, 844 S.W.2d 417, 421 (Ky. 1992) (referring to the defendants as "crazed animals"); Ferguson v. Commonwealth, 401 S.W.2d 225, 228 (Ky. 1965) (referring to the defendant as a "beast"). In Robinson, this Court held that referring to the defendant as a "pedophile"
was error, "even when the evidence thoroughly establishes the fact," because
"the word pedophile goes to the ultimate conduct at issue in trial." Robinson,
647 S.W.3d at 144. Robinson distinguished between general descriptive terms, such as "monster" and "crazed animal", and terms which assume the ultimate issue at trial.
Here, the Commonwealth did not outright reach an ultimate issue in its closing argument. The Commonwealth informed the jury that credibility was a determination for them to make and told them things to consider — the substance of the witness' testimony as well as the witness' demeanor. From this, the Commonwealth provided arguments as to why the jury should see the ultimate issue of credibility from the Commonwealth's perspective. This is no different from what closing arguments are designed to do. Closing arguments are designed for trial attorneys to make their best arguments as to why the jury
21
21
should side with them on ultimate issues. Just as this Court said in Soto, 139 S.W.3d at 873,
The prosecutor's comment was mild compared to other comments that we have declined to characterize[] as misconduct. E.g., Stopher, supra, at 806 (classification of defense theory as "stupid"); Luttrell v. Commonwealth, Ky., 952 S.W.2d 216, 218 (1997) (characterization of defense witnesses' testimony as a "story"); Slaughter, supra, at 412 (criticism of defense counsel for presenting a "great octopus defense" and "pulling a scam").
Saint claims that the Commonwealth's assertion that Saint's testimony was rehearsed improperly impressed the jury upon the ultimate issue of credibility. However, even if Saint's testimony was rehearsed, that doesn't necessarily mean that he is lying. It only means that his testimony has been practiced, and the jury could then infer from this that the testimony was not credible, but they could also infer otherwise.
Our precedent also recognizes instances where the jury could imply that the prosecutor is making statements with special knowledge not introduced during trial.
In Hall v. Commonwealth[, 551 S.W.3d 7 (Ky. 2018)], we stated
"generally, improper vouching involves either blunt comments, such as, 'I think [the witness] was candid. I think he is honest,' or comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.'"
Towe v. Commonwealth, 617 S.W.3d 355 (Ky. 2021). Here, the Commonwealth supported its assertion that Saint's testimony was rehearsed with details of Saint's testimony already before the jury — that Saint used precise times when describing the events of the night in question. This restrains any implication
22
22
that the prosecutor was opining on the integrity of Saint's testimony with special knowledge of facts not in front of the jury. Ultimately, our case law has drawn a line that the prosecutor here did not cross. The prosecutor's statements during closing arguments did not amount to misconduct.
CONCLUSION
For all the foregoing reasons, we affirm the judgment of the Daviess Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jennifer Elizabeth Hubbard Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Kentucky Attorney General Stephanie Lynne McKeehan Assistant Attorney General
23