Christian Cotton v. Commonwealth of Kentucky ( 2023 )

RENDERED: JUNE 23, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0194-MR
CHRISTIAN L. COTTON APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
v. HONORABLE JAMES T. JAMESON, JUDGE
ACTION NO. 19-CR-00255
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, KAREM, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: In 2021, Appellant, Christian L. Cotton, was convicted by a
Calloway County jury of first-degree sexual abuse involving a minor, Z.W.
Candice Reeder is the victim’s mother and was Cotton’s girlfriend at the time. The
jury recommended a sentence of ten years’ imprisonment, which was ordered by
the court. Cotton now appeals to this Court as a matter of right. For the following
reasons, we affirm.
The facts of the underlying offense are of minimal relevance to the
issues on appeal. Cotton raises two arguments: 1) He was denied his right to
cross-examine Reeder about her felony conviction; and 2) The Commonwealth’s
closing argument was improper and violated the “golden rule.”1 Neither of these
arguments is preserved. Cotton requests that we review for palpable error pursuant
to RCr2 10.26 as follows:
A palpable error which affects the
substantial rights of a party may be considered by
the court on motion for a new trial or 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.
....
For an error to rise to the level of palpable, it must be
easily perceptible, plain, obvious and readily noticeable.
Generally, a palpable error affects the substantial rights
of the party only if it is more likely than ordinary error to
have affected the judgment.
Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation
marks and citations omitted).
1
“In a criminal case a golden rule type of argument is one that urges the jurors collectively or
singularly to place themselves or members of their families or friends in the place of the person
who has been offended and to render a verdict as if they or either of them or a member of their
families or friends was similarly situated.” Lycans v. Commonwealth, 562 S.W.2d 303, 305 (Ky.
1978).
2
Kentucky Rules of Criminal Procedure.
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Cotton’s first argument is that he was denied his right to cross-
examine Reeder about her felony conviction, in violation of KRE3 608(b) and KRE
609(a). We disagree. Reeder never denied being a felon. No record whatsoever
of her alleged felony was established. There was no error here, and certainly no
palpable error. However, having reviewed the relevant portion of the video record
here, we take this opportunity to reiterate the Supreme Court’s admonition in
Marchese v. Aebersold,
[W]e have expressly rejected CourtNet, the Kentucky
Court of Justice’s online database of criminal convictions
from Kentucky courts, as a valid source for taking
judicial notice of a Kentucky criminal conviction.
Instead, a true copy of the authenticated official court
record is required.
530 S.W.3d 441, 447 (Ky. 2017).
As to his second issue on appeal, Cotton correctly states that, during
closing arguments, the Commonwealth’s attorney asked the jury to put themselves
in the shoes of Reeder as to why she would have delayed reporting her daughter’s
abuse. The prosecutor also discussed Z.W. in a similar vein concerning her
reliability as a witness. He did so in response to defense counsel’s closing
argument, who first asked the jury to put themselves in the shoes of Reeder and
Z.W. Defense counsel also alluded to Reeder and Z.W.’s delay in reporting and
3
Kentucky Rules of Evidence.
-3-
asked the jury to draw their inferences accordingly. Therefore, any error here was
proceeded by defense counsel engaging in the same or similar statements.
Furthermore, Z.W. testified at length and in great detail during trial concerning the
sexual abuse. With these considerations in mind, and in light of our palpable error
standard of review, we cannot conclude that the prosecutor’s closing argument
constitutes “manifest injustice” or that it “affected the judgment.” Martin, 409
S.W.3d at 344. Therefore, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
Brett R. Nolan
Principal Deputy Solicitor General
Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky
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