Timothy Ray v. Commonwealth of Kentucky ( 2020 )

RENDERED: AUGUST 21, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000414-MR
TIMOTHY RAY APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 15-CR-00265
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
COMBS, JUDGE: Timothy C. Ray, Sr., the Appellant, challenges a jury verdict
finding him guilty of two counts of sexual abuse, first degree. The jury
recommended a sentence of ten years: five years for each count to run
consecutively. And the trial court sentenced him accordingly.
Ray contends that the Commonwealth committed palpable error in
introducing hearsay and bolstering evidence -- as well as in presenting evidence of
his drinking habits and of an incident of having been stabbed by his wife, Cheryl.
(Cheryl has since divorced him.) After our review, we find no error and affirm his
conviction.
Ray was convicted of sexually abusing two of his granddaughters,
E.L. and E.R., between September 2014 and September 2015; they were less than
twelve years of age at the time. E.L., E.R., their younger sister, and their mother,
Ally, all lived with Ray and Cheryl (the children’s grandmother). The testimony
presented at trial is set forth in the parties’ briefs, and we need not repeat the
salacious details for purposes of this Opinion.
Ray first argues that the Commonwealth introduced “an excessive and
unnecessary amount of inadmissible evidence that improperly vouched for and
bolstered” the testimony of E.L. and E.R. at trial. However, he acknowledges that
the issue was not preserved and requests palpable error review under RCr110.26,
which provides as follows:
A palpable error which affects the substantial rights of a
party may be considered . . . by an appellate court on
appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from
the error.
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Kentucky Rules of Criminal Procedure.
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Chavies v. Commonwealth, 374 S.W.3d 313, 322-23 (Ky. 2012), upon which Ray
relies, holds that:
A party claiming palpable error must show a probability
of a different result or error so fundamental as to threaten
a defendant’s entitlement to due process of law. Martin
v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Justice
Cunningham, in his concurring opinion in Alford v.
Commonwealth, once described the threshold for
palpable error: “It should be so egregious that it jumps
off the page . . . and cries out for relief.” 338 S.W.3d
240, 251 (Ky. 2011).
This case does not meet that criterion of egregiousness.
In its opening statement, Ray argues that the Commonwealth “took
the jury down the line of hearsay and other improper evidence that it later
introduced.” However, as the Commonwealth notes, “[o]pening and closing
statements are not evidence and wide latitude is allowed in both.” Wheeler v.
Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003) (citation omitted).
Ray contends that it was improper for the Commonwealth to ask E.L.
and E.R. whether they had told the truth when they testified at trial and during their
forensic interviews at Hope’s Place -- and that it was improper for them to tell the
jury that they were telling the truth. We do not agree.
In Tackett v. Commonwealth, 445 S.W.3d 20, 33 (Ky. 2014), the
defendant argued that the testimony of a victim of sexual abuse constituted
impermissible bolstering where the Commonwealth had asked if he was telling the
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truth, if he had any reason to lie, and if his testimony was accurate. Our Supreme
Court held that admission of the disputed testimony was not palpable error. The
witness had already been sworn to tell the truth. Therefore, his “testimony that he
was doing so posed little risk of short-circuiting the jury’s credibility
determination.” Id. (internal quotation marks and citation omitted).
Ray also claims that palpable error occurred when several witnesses
improperly bolstered or vouched for the children’s testimony; namely: Deana
Raney, a forensic interviewer with Hope’s Place; K.E., the children’s older cousin;
Megan Hankins, a social worker; and Lieutenant Allan Bowling. “The rule against
bolstering or vouching addresses attempts by one witness to express belief in the
credence of another witness.” Ruiz v. Commonwealth, 471 S.W.3d 675, 683 (Ky.
2015) (citation omitted).
We have carefully reviewed the record in this case, and we conclude
that Ray’s assertions of error do not rise to the level of palpable error. “Implicit in
the concept of palpable error correction is that the error is so obvious that the trial
court was remiss in failing to act upon it sua sponte.” Lamb v. Commonwealth,
510 S.W.3d 316, 325 (Ky. 2017).
Ray next contends that he was denied a fair trial due to allegedly
“irrelevant and prejudicial testimony” about how witnesses learned of the
allegations and to whom they were relayed. Ray submits that “[i]t makes no
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difference that the Commonwealth cleverly attempted to avoid the hearsay
problems by instructing the witnesses in front of the jury to not explicitly say what
was said to them in each instance.” Ray argues that even if the evidence were
“tangentially relevant,” the danger of undue prejudice outweighed any probative
value. His assertions of error are tenuous and conclusory, and they do not rise to
the level of palpable error.
Ray’s final argument is that he was denied a fair trial by the
Commonwealth’s continued emphasis on his drinking habits and the fact that his
ex-wife stabbed and divorced him after learning of the allegations against him.
Ray acknowledges that the issue was not preserved, and again he requests palpable
error review.
Ray addressed his alcoholism directly in his own opening statement as
set forth at page 11 of Appellee’s Brief. Furthermore, Ray “opened the door” by
cross-examining Lieutenant Bowling about the stabbing incident. We agree with
the Commonwealth that any error -- if indeed there was error at all -- was invited.
Therefore, it was waived and is not subject to palpable error review. Mullins v.
Commonwealth, 350 S.W.3d 434, 438-39 (Ky. 2011). See also Hall’s Adm’r v.
Burton Produce Co., 262 Ky. 36, 88 S.W.2d 938, 938 (1935) (in which appellee’s
counsel asked appellee about the cause of an accident). Because appellant’s
counsel made no objection and cross-examined the appellee about it, the Court
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held that if “this were error, it was an error invited by appellant and of which he
cannot complain.” Id.
Finding no error, we AFFIRM the judgment of the Boyd Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Leilani K.M. Martin
Assistant Attorney General
Frankfort, Kentucky
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