Marlon Henson v. Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: DECEMBER 16, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0343-MR
MARLON HENSON APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KEN M. HOWARD, JUDGE
NO. 19-CR-00687
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The grand jury indicted Marlon Henson on one count of first-degree
sodomy and one count of first-degree sexual abuse for allegedly engaging in
deviate sexual intercourse with J.G., his stepdaughter, and subjecting her to
sexual contact. At trial, the jury found Henson guilty on both counts and
recommended concurrent sentences totaling 20 years. He now appeals the
resulting judgment as a matter of right.1 We affirm the judgment.
In his appeal, Henson alleges more than 25 errors by the trial court.
Numerous arguments made in his brief are improperly preserved, inadequately
1 Ky. Const. § 110(2)(b).
cited, insufficiently argued, and unsupported by statute or case law. We
address those arguments that comply with CR2 76.12.
I. FACTS AND PROCEDURAL HISTORY
J.G. confided to her friends and grandmother that her stepfather, Marlon
Henson, had made sexual contact with her. Specifically, J.G. alleged that, on
one occasion, she had fallen asleep in the bedroom of Henson and her mother
when Henson put his hand under her clothing and touched her “lower private
area” between her legs. On another occasion, Henson had come to J.G.’s
bedroom while she was awake but lying down, pulled down her shorts, and
touched and licked between her legs.
When J.G.’s mother, Joy Gray, was informed of these allegations, she
contacted the Kentucky State Police. In response, Trooper Kevin Dreisbach
went to Joy’s location where they composed and sent on Joy’s phone a series of
text messages to Henson. Via return text message, Henson denied knowledge of
doing anything to J.G., but he apologized if he had done so.
Afterward, Trooper Dreisbach drove to Henson’s location, and Henson
agreed to go with him to the post to be interviewed. Henson was released after
being interviewed. Henson agreed to be interviewed by police again two days
later and was again released.
The police investigated J.G.’s allegations, interviewing countless friends
and relatives of both J.G. and Henson. After nearly a year of investigation,
Henson was indicted.
2 Kentucky Rules of Civil Procedure.
2
Jury selection for Henson’s trial began on March 12, 2020, and the jury
was sworn in on March 13. At trial, Henson denied any sexual interaction with
J.G. After both parties made closing arguments, the jury deliberated for
approximately 14 hours before reaching a guilty verdict on both charges and
recommending a concurrent sentence totaling 20 years. The trial court
sentenced Henson in accordance with this recommendation.
II. ANALYSIS
A. The trial court did not abuse its discretion by proceeding with
Henson’s trial in light of Order 2020-08 from the Kentucky Supreme
Court.
Henson contends that the trial court committed reversible error in failing
to grant a postponement of his trial to a later time. In the face of the threat of
COVID-19, Henson alleges the members of the jury were unable to give their
full attention to their duties as jurors. Additionally, he contends the language
of this Court’s Order No. 2020-08 mandated the trial court reschedule his trial
to a later time, and that by failing to do so the trial court committed reversible
error.
We review a trial court’s decision on whether to postpone a trial under an
abuse of discretion standard.3 A trial court has wide discretion in deciding
whether to grant a motion for continuance, and we will not overturn such a
decision unless we find the trial court’s decision arbitrary, unreasonable, or
unsupported by sound legal principles.4
3 Hilton v. Commonwealth, 539 S.W.3d 1, 7 (Ky. 2018).
4 Id. at 10-11; Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
3
Motions for a continuance are generally governed by RCr5 9.04, which
reads: “The court, upon motion and sufficient cause shown by either party,
may grant a postponement of the hearing or trial.”6 In this case, however, the
trial court was also operating under Kentucky Supreme Court Administrative
Order No. 2020-08. The order issued on March 12, 2020, directs, in pertinent
part, that “reasonable attempts shall be made to reschedule all criminal trials .
. . .”
Order No. 2020-08 imposed a standard of reasonableness upon the trial
courts in deciding whether to reschedule criminal trials. It was within the trial
court’s discretion to find it impracticable to reschedule Henson’s trial after the
trial was underway. We find no abuse of discretion in the trial court’s decision
to swear in the jury on March 13, 2020, and proceed with trial to completion.
Henson also alleges the trial court impermissibly delegated the authority
to postpone the trial to the jury when the judge consulted with the jurors
regarding their ability to focus and participate in the trial. However, a trial
court is entrusted with broad discretion in the way a trial is conducted.7
Without a clear abuse of such discretion, an appellate court should not so
encroach upon the purview of the trial court.8 We refuse to do so now. We find
this communication between the trial court and members of the jury was a
reasonable consultation with the jurors to determine whether the threat of
5 Kentucky Rules of Criminal Procedure.
6 Taylor v. Commonwealth, 611 S.W.3d 730, 735 (Ky. 2020).
7 Transit Auth. of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky.
1992).
8 Id.
4
COVID-19 posed an insurmountable distraction from participation in the trial.
Upon the jurors’ response that they felt prepared to participate in the trial, the
court did not abuse its discretion in proceeding with the trial.
B. The trial court did not err in closing Henson’s trial to the public in
response to the threat of COVID-19.
Henson argues that the trial court denied him his right to a public trial
on March 16, 18, and 19, 2020, when the court limited attendance of the trial
to attorneys, parties, and necessary witnesses, in compliance with
Administrative Order No. 2020-08. Henson claims that the exclusion of his
family and friends from the courtroom during trial fatally prejudiced his
defense.
Both the Sixth Amendment to the United States Constitution and Section
11 of the Kentucky Constitution guarantee a criminal defendant the right to a
public trial. In United States v. Gonzalez-Lopez, the United States Supreme
Court held that the denial of a defendant’s right to a public trial was a
structural error.9 Structural errors are those affecting the entire framework of
the trial and necessarily render the trial fundamentally unfair.10 These errors
are not considered under the harmless-error rule but instead require automatic
reversal.11 In reviewing whether a trial court denied a defendant’s right to a
public trial, we apply a presumption of prejudice if such a denial is found to
have occurred.12
United States v. Gonzalez-Lopez, 547 U.S. 140, 148-49 (2006); McCleery v.
9
Commonwealth, 410 S.W.3d 597, 605 (Ky. 2013).
10 Neder v. United States, 527 U.S. 1, 8-9 (1999).
11 McCleery, 410 S.W.3d at 604.
12 Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018).
5
In Waller v. Georgia, the United States Supreme Court outlined the test
for determining if the closure of a trial constitutes a violation of the Sixth
Amendment by denying the defendant’s right to a public trial:
[T]he party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, the closure must
be no broader than necessary to protect that interest, the trial
court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the
closure.13
The application of the test to the circumstances in our case is imperfect
because the closure of Henson’s trial was not a matter of the trial court’s
judicial discretion but instead a matter of the trial court’s adherence to this
Court’s emergency administrative orders. As such, our analysis considers
whether the Kentucky Supreme Court fulfilled the Waller test in issuing Order
No. 2020-08. We consider each of the test’s four elements in turn.
First, the party seeking closure of the trial must provide an “overriding
interest” likely to be prejudiced if the trial is not closed.14 The preamble to
Order No. 2020-08 outlines the emergent circumstances under which the order
was issued. Governor Beshear had declared Kentucky to be under a state of
emergency in response to the threat of COVID-19. Public-health guidance at
that time advised social distancing, masking, and quarantining as the primary
means of defense from the virus. Thus, this Court found the best way to
protect the health and safety of the employees of Kentucky’s courts, our elected
officials, and the public was the closure of courtrooms to spectators. Without
13 467 U.S. 39, 48 (1984).
14 Id.
6
such closure, the social distancing prescribed by the Centers for Disease
Control would have been impossible to maintain. With the benefit of hindsight
and the immense loss of life in Kentucky as a result of COVID-19, it is clear the
precautions taken were a proportionate response to the threat posed by
COVID-19.
Second, the closure enacted must be narrowly tailored to the interest
threatened.15 In issuing Order No. 2020-08, this Court left to the discretion of
our trial courts the decision to reschedule criminal trials underway at that
time. The order sought to limit the dangers posed by COVID-19 while allowing
criminal trials to proceed as each trial court saw fit. Rather than suspending
proceedings altogether, this Court sought to mitigate the danger posed by
COVID-19 while permitting ongoing criminal trials to proceed to resolution
without interruption.
Third, the court must consider reasonable alternatives to the closure of
the proceeding.16 In issuing Order No. 2020-08, this Court found that, in
March 2020, closure of the courtroom to spectators was the most feasible way
to continue the work of the judiciary while protecting employees, officials, and
litigants from the threat of COVID-19. At present, technologies are available
that provide streaming of proceedings live to any computer or phone with
access to the internet. However, Kentucky’s courts were not equipped with
such technology at the outset of the COVID-19 pandemic. Among the options
of full closure, closure to spectators, or full access to the public, this Court
15 Id.
16 Id.
7
reasoned that completing criminal trials in progress while closing the
courtroom to spectators was the course of action best suited to accomplish this
Court’s purpose of keeping courts operating while preventing the spread of
COVID-19.
Lastly, the court is required to make findings adequate to support
closure of the courtroom.17 In this case, the preamble to Order No. 2020-08
states the reasoning behind the order’s issuance. Additionally, the trial court
informed the jury of Order No. 2020-08 and the reason spectators were
excluded from the courtroom during the trial. So both the trial court and this
Court provided sufficient findings to support the courtroom’s closure to
spectators during the trial. We find Order No. 2020-08 satisfies the elements
of the Waller test. Therefore, the trial court’s adherence with Order No. 2020-
08 did not constitute a denial of Henson’s right to a public trial.
The crux of Henson’s argument regarding the closure of his trial is that
the jury was unable to see the many friends and family members he
anticipated would attend the trial and show their support for him, and thereby
the jury was unfairly prejudiced against him. However, this theory lacks legal
support. Although the right to a public trial is “for the benefit of the accused,”
the guarantee of a public trial is intended to allow the public to “see for
themselves how their laws are impartially applied.”18 We find this purpose is
adequately served by the availability of the digital recording of the trial to the
17 Id.
18 Waller, 467 U.S. at 46; Lexington Herald Leader Co., Inc. v. Tackett, 601 S.W.
905, 907 (Ky. 1980).
8
public after the conclusion of the trial, and we therefore find Henson’s
argument to be without merit.
C. The trial court did not abuse its discretion in denying Henson’s
various motions to declare a mistrial.
A mistrial is granted at the discretion of the trial court.19 Absent an
abuse of discretion, an appellate court will not disturb the ruling of the trial
court. Furthermore, a mistrial is appropriate only where the record reveals “a
manifest necessity for such action or an urgent or real necessity.”20 A mistrial
is an extreme remedy only appropriate when a fundamental defect occurs that
will result in apparent injustice.21 A mistrial should only be declared if
prejudice can be avoided in no other way.22
Henson’s brief cites two instances in which he requested the trial court
declare a mistrial. In both instances, Henson argued that, in response to
Order No. 2020-08’s instruction that spectators be excluded from the
courtroom, a mistrial was required. However, Henson’s brief provides no
citation to pertinent authority in its contention that a mistrial was merited and
wrongly denied. Because Henson’s brief is not in conformity with CR 76.12, we
may summarily affirm the trial court on this issue.23 Despite this deficiency,
19 Chapman v. Richardson, 740 S.W.2d 929 (Ky.1987).
Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002) (citing Clay v.
20
Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993)).
21 Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996).
22 Id.
23 See also RCr 12.02 regarding the applicability of CR 76 to criminal appeals;
Harris v. Commonwealth, 384 S.W.3d 117, 130-31 (Ky. 2012).
9
we will still address the merits of this claim as if they had been properly
briefed.
As addressed above in Section B, the right to a public trial is not
intended to bolster the jury’s perception of the defendant and his support from
the community. So the exclusion of Henson’s family and friends from the
courtroom during the trial did not improperly prejudice the jury against him.
Henson provides no alternative grounds on which the trial court’s failure to
declare a mistrial would result in manifest injustice.24 Thus, we find the trial
court did not abuse its discretion in refusing to grant Henson’s requests for a
mistrial.
D. The trial court did not abuse its discretion in allowing J.G., the
alleged victim, and her parents to be present in the courtroom for
portions of the trial.
A trial court is entrusted with broad discretion in conducting a trial, and
the trial court’s decisions will not be disturbed unless clearly erroneous.25 Per
the directive of Order No. 2020-08, only “attorneys, parties, and necessary
witnesses” were permitted in the courtroom during the trial. In ruling that the
victim and her guardians were parties to the case for this purpose, we find the
trial court exercised reasonable discretion. We find the allowance of J.G., the
alleged underaged victim, and her parents to remain in the courtroom during
closing arguments did not unfairly prejudice Henson, and the decision of the
trial court to allow J.G. and her parents to remain in the courtroom was not
24 Although Henson requested the trial court declare a mistrial on several other
occasions, none of those instances were addressed in his brief. Therefore, we do not
consider them in our present analysis.
25 Furnish v. Commonwealth, 267 S.W.3d 656, 664 (Ky. 2007).
10
clearly erroneous. We therefore find Henson’s arguments on this matter to be
without merit.
E. The trial court did not err in denying Henson’s motions to suppress
his statements made to Joy Grey and the evidence obtained
therefrom.
When Henson conversed with Joy via text message during the
investigation of this case, Joy was in the presence of Trooper Dreisbach.
Henson alleges that, in conspiring with Dreisbach to compose messages to
send to Henson, Grey became an agent of the Commonwealth. Henson
contends that, as an agent of the Commonwealth, Grey was required to
administer Miranda warnings before conversing with him. Because she failed
to do so, Henson argues, the statements he made to Grey via text message and
all the evidence the police obtained from these messages should have been
suppressed.
Before we address the merits of Henson’s argument, the Court finds it
important to note the argument on this topic provided in Henson’s brief is
lacking in documentation of preservation, citation to legal authority, and
analysis in general. By proffering a novel argument and providing no reference
to analogous precedent, Henson simply makes a broad statement of error and
asks this Court to make his analysis for him. Because of Henson’s failure to
comply with CR 76.12, this Court may summarily affirm the trial court’s ruling
on this matter.26 Despite this deficiency, we will address this argument as if it
had been properly briefed.
26 Harris, 384 S.W.3d at 130-31.
11
When reviewing a trial court’s denial of a motion to suppress, this Court
uses a clear-error standard of review for factual findings and a de-novo
standard of review for conclusions of law.27 We will consider Henson’s factual
contentions to determine whether the trial court committed clear error.
Henson claims that, acting at the direction of Trooper Dreisbach, Joy
sent text messages to Henson. Those messages contained the false assertion
that Grey possessed video evidence incriminating Henson. Testimony from
both Grey and Trooper Dreisbach confirms Grey text messaged Henson at the
direction of Trooper Dreisbach and the messages contained this false assertion.
As the factual findings that form the basis of Henson’s motion for suppression
are not in dispute, the trial court’s acceptance of these facts was not
erroneous.
We review de novo the legal conclusions formed by the trial court
regarding Henson’s suppression motion. The trial court properly concluded
that using deceptive investigatory techniques is legal. Thus, it would be
permissible for Trooper Dreisbach to use deceptive techniques to question
Henson. By extension, the trial court reasoned, an agent of Trooper Dreisbach
could do the same. We agree. Under both Kentucky and United States
Supreme Court precedent, the use of deceptive interrogation practices does not
automatically render a statement involuntary.28 Instead, the courts consider
27 Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006).
28 Frazier v. Cupp, 394 U.S. 731, 739 (1969); Matthews v. Commonwealth, 168
S.W.3d 14, 21 (Ky. 2005).
12
the totality of the circumstances under which a statement is made to determine
if it was the product of coercion and, as such, inadmissible.29
Given the totality of the circumstances surrounding Henson’s text
messages with Grey, we find the deception that occurred did not rise to the
level of coercion necessary to render Henson’s statements inadmissible.
Therefore, the trial court properly dismissed Henson’s motion to have such
statements suppressed.
F. The trial court did not err in denying Henson’s motion to suppress
his statements to police.
Before trial, Henson filed a motion seeking the suppression both of his
text message conversation with Grey (see Section E) as well as the statements
he made to police “on or about” October 22, 2018, and any time thereafter.
Henson claimed that his statement to police on October 22, 2018, was made
during a custodial interrogation at which he had not been provided his Miranda
rights. As such, he argued the statements were made involuntarily and thus
suppression was required.
At a pre-trial suppression hearing, the trial court conducted an
exhaustive analysis of both the undisputed facts as well as the relevant legal
precedent, concluding Henson was not in custody during either of his
interviews with police. As a result, Henson was not entitled to receive Miranda
warnings. The trial court denied Henson’s pretrial motion for suppression.
Henson renewed his motion for suppression at trial, where it was denied on the
same grounds as his pretrial motion.
29 Matthews, 168 S.W.3d at 21 (citing Illinois v. Perkins, 296 U.S. 292, 297
(1990)).
13
In reviewing a trial court’s denial of a motion to suppress, this Court
applies a clear-error standard to the trial court’s factual findings.30 The trial
court conducted an evidentiary hearing at which the officers who interviewed
Henson testified. The trial court also considered the transcripts of Henson’s
interviews with police in reviewing Henson’s motion to suppress the statements
elicited in the interviews. Henson’s motion contained no objection to the facts
presented, and thus we find the essential facts that form the basis of his
argument are not in dispute. Therefore, we find the trial court’s acceptance of
these facts as true was not erroneous.
In reviewing a trial court’s denial of a motion to suppress, we consider
the trial court’s legal conclusions de novo.31 Under Miranda v. Arizona, law
enforcement officers are required to advise a suspect of the right to remain
silent and the right to the assistance of legal counsel before performing a
custodial interrogation.32 In order to determine if a suspect was subjected to a
custodial interrogation, the court must consider both whether the suspect was
in police custody and whether the suspect was interrogated.33
In determining whether a suspect was in police custody, we consider the
totality of the circumstances surrounding the interaction.34 A suspect is in
custody if he has formally been placed under arrest or if his movements have
been restrained to the degree a reasonable person would equate with being
30 Jackson, 187 S.W.3d at 305.
31 Id.
32 384 U.S. 436, 471-72 (1966).
33 Smith v. Commonwealth, 520 S.W.3d 340, 346 (Ky. 2017).
34 Wilson v. Commonwealth, 199 S.W.3d 175, 180 (Ky. 2006).
14
formally placed under arrest.35 Custody indicates that the suspect’s
statements are at risk of being coerced.36 In analyzing whether a suspect is in
custody, we consider the following factors: the purpose of the questioning; the
location of the questioning; the behavior of the officers; the display of a weapon
by the officers; the length of the interview; the officers’ tone and language; the
officers’ notification to the suspect that he was free to leave; and any other
indications of coercion.37
In this case, the trial court found that a reasonable person in Henson’s
position would have felt free to terminate the interview at any time. Henson
willingly traveled to the state police post to be interviewed by the officers, the
officers notified him of his right to leave, and, in the case of the second
interview, Henson exercised that right to terminate the interview and leave.
The officers spoke calmly and unthreateningly to Henson throughout his
interviews.
We find, under the totality of the circumstances, Henson was not in
police custody for purposes of Miranda, his statements made to police were
voluntarily made, and those statements were admissible into evidence. The
trial court did not err in denying Henson’s motion to suppress these statements
from evidence.
35Stansbury v. California, 511 U.S. 318, 320 (1994); Jackson v. Commonwealth,
187 S.W.3d 300, 310 (Ky. 2006).
36 Howes v. Fields, 565 U.S. 499, 508 (2012).
37 Smith, 312 S.W.3d at 358.
15
G. The trial court did not err in refusing to admit the testimony of
Miley Rogers into evidence.
Henson makes a fleeting argument that the trial court erred by refusing
to admit portions of the testimony of Miley Rogers into evidence. He alleges
this evidence was placed in the record by avowal. However, Henson does not
identify which exhibit contains this evidence, nor does he accurately cite to
relevant portions of the record. Last, Henson makes no argument regarding
the substance of the excluded testimony or the impact that testimony would
have had on his defense. Henson again simply makes a claim of error and
expects this Court to construct an argument for him. We decline to do so.
Because Henson’s brief is deficient under CR 76.12 with regard to this
argument, we decline to consider his claim of error and instead summarily
affirm the decision of the trial court.
H. The trial court did not abuse its discretion in refusing to admit the
entire text-message exchange between Sybil Humphrey and Vicky
Basham into evidence.
At trial, Henson called Sybil Humphrey as a witness. During both
Humphrey’s testimony and the testimony of other witnesses, Henson attempted
to introduce records of Humphrey’s text-message exchanges as impeachment
evidence to prove that J.G. had ulterior motives in her allegations against
Henson. The Commonwealth objected to the use of the messages because they
contained inadmissible hearsay. The trial court did not permit the messages
containing hearsay to be presented to the jury. Additionally, the trial court
required the hearsay portions of the messages to be redacted before the
messages were submitted as an exhibit to the jury.
16
Under CR 76.12, Henson’s brief is substantively and structurally
deficient with regard to this argument. Henson provides no citation to any
precedent or rule of evidence in support of his argument.38 Despite this
deficiency, we will address Henson’s argument as if it had been properly
briefed.
A court’s refusal to admit testimony into evidence is an evidentiary ruling
that we review for abuse of discretion.39 We will disturb the trial court’s
decision only if we find the decision was “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”40
This Court assumes the legal principle on which Henson’s argument is
founded is KRE41 106, the Rule of Completeness: “When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it.” The goal of this rule is to ensure statements
admitted into evidence are fully understandable and clear.42
38 Henson’s argument on this topic also contains a disparate paragraph
regarding a Barroso motion that seems to be mistakenly placed within this section.
This argument is not contained in the brief’s Statement of Points and Authorities, the
argument is both substantively and structurally deficient, and Henson fails to
correctly spell the name Barroso or cite to the relevant case. Thus, we decline to
entertain this argument.
39 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
40 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
41 Kentucky Rule of Evidence.
42 James v. Commonwealth, 369 S.W.189, 205 (Ky. 2012).
17
In determining fairness in the context of an alleged violation of the rule of
completeness, the issue is whether the meaning of the included portion of the
evidence is altered by the excluded portion.43 At trial, the party seeking to
invoke KRE 106 must provide an explanation to the trial court of how the
statements admitted would be understood differently in the context of those
statements not admitted.44
Neither at trial nor in briefing did Henson explain how any statement
admitted from Sybil Humphrey’s text messages was taken out of context or
plucked from the conversation as a whole such that it misled the jury as to its
meaning. The statements admitted into evidence were expressions of concern
that Henson may have been wrongly accused. The portion of the conversation
the trial court ruled to be hearsay expressed how Basham “got told” that J.G.
made false allegations because she did not want to live with Henson any
longer. The omission of this hearsay from evidence does not alter the meaning
of the portion of the conversation admitted into evidence. Therefore, we find
the trial court did not abuse its discretion in refusing to admit the entirety of
the text message conversation at hand.
I. The trial court did not abuse its discretion in interpreting and
applying the trial court’s reciprocal-discovery order.
Before trial, the court granted Henson’s motion for a discovery order
requiring the Commonwealth to provide any exculpating evidence to him as
well as any evidence the Commonwealth intended to introduce at trial. Under
43 Sykes v. Commonwealth, 453 S.W.3d 722, 726 (Ky. 2015).
44 Meece v. Commonwealth, 348 S.W.3d 627, 671 (Ky. 2011).
18
RCr 7.24(3)(b), if such a request by a defendant is granted, the court may order
that the defendant similarly disclose to the Commonwealth evidence intended
to be introduced at trial.
Before the trial began, Henson made no objection to these orders. At
trial, however, Henson attempted to introduce into evidence a text message
conversation between Sybil Humphrey and Vicky Basham. The
Commonwealth objected to the introduction of such evidence claiming it had
not previously been disclosed to the Commonwealth, per the instruction of the
trial court’s reciprocal-discovery agreement. The Commonwealth argued that
Henson should have reasonably anticipated that this text-message
conversation would come into evidence for impeachment purposes, and thus
he had a duty to disclose the evidence to the Commonwealth before trial.
While acknowledging the validity of the Commonwealth’s objection, the
trial court chose not to exclude the evidence in question because of the
violation of the order but instead required Henson to disclose the evidence to
the Commonwealth at that time. Despite this late disclosure, the trial court
permitted Henson to introduce the text-message conversation into evidence.45
In reviewing a trial court’s interpretation and application of a discovery
order, this Court will find error only if the trial court abused its discretion in
interpreting the order.46 Thus, we will not overturn the decision of the trial
45 Portions of the text message conversation in question were ultimately
excluded from evidence on hearsay grounds. However, this exclusion was unrelated to
Henson’s failure to make proper disclosure of the evidence to the Commonwealth prior
to trial.
46 Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 931 (Ky. 2013).
19
court unless we find it to be unreasonable, unfair, arbitrary, or unsupported by
sound legal principles.47 Generally speaking, trial courts are granted broad
leeway and discretion in entering and enforcing their discovery orders.48
Henson’s argument regarding this issue confounds this Court. Henson
sought to have the text-message conversation entered into evidence. The trial
court permitted the text-message conversation to be entered into evidence,
despite acknowledging Henson’s violation of the reciprocal-discovery order.
Henson was hardly prejudiced by the trial court’s requirement that he provide
the text-message conversation to the Commonwealth once the trial had already
begun. Most importantly, the video record cited by Henson to show
preservation of this issue includes footage of Henson withdrawing his objection.
We find his argument on this topic to be entirely without merit.49 The trial
court did not abuse its discretion in enforcement of the reciprocal-discovery
order.
J. The trial court did not abuse its discretion in refusing to allow
hearsay to be included in Trooper Dreisbach’s testimony at trial.
Before trial, Trooper Dreisbach interviewed four of J.G.’s friends
regarding what she had told them about the alleged sexual assault. At trial,
Henson called Trooper Dreisbach as a witness. Specifically, Henson inquired
as to the statements made by J.G.’s friends whom Trooper Dreisbach
47 English, 993 S.W.2d at 945.
48 Id.
In addition to the incoherence of Henson’s argument, the section of his brief
49
on this topic is deficient under of CR 76.12, lacking citation to legal precedent, a
factual premise for his argument, and any allegation of prejudice created by the trial
court’s actions.
20
interviewed. The Commonwealth objected to Trooper Dreisbach’s testimony
regarding the contents of those conversations as inadmissible hearsay.
In response to the objection, Henson argued that the Commonwealth had
failed to aid him in locating the four friends of J.G. and thus that he was
entitled to inquire about the content of their statements made to Trooper
Dreisbach. The trial court sustained the Commonwealth’s objection,
prohibiting Trooper Dreisbach from testifying about the statements made to
him by J.G.’s four friends.
A trial court’s decision to refuse to admit testimony is an evidentiary
ruling that this Court reviews under an abuse-of-discretion standard.50 We will
disturb the trial court’s ruling only if we find it to be “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.”51
Under KRE 801, hearsay is defined as “a statement, other than one made
by the declarant while testifying at the trial . . . offered in evidence to prove the
truth of the matter asserted.”52 In this case, statements made by J.G.’s friends
in interviews with Trooper Dreisbach were certainly out-of-court statements
made by one other than Trooper Dreisbach. In fact, because the friends’
statements were regarding what J.G. had told them, the statements were
hearsay within hearsay.
We first address Henson’s contention that the Commonwealth failed to
help him locate witnesses before trial. Henson claims that he requested the aid
50 Goodyear Tire & Rubber Co., 11 S.W.3d at 577.
51 English, 993 S.W.2d at 945.
52 KRE 801(c).
21
of the Commonwealth by letter. But this letter is not included as an appendix
to Henson’s brief, nor is a citation to the trial record provided. Henson has not
properly preserved the argument that the declarant was unavailable to testify
at trial, meriting an exception to KRE 802’s rule against hearsay, so we decline
to address it.
Henson claims he attempted to introduce these statements into evidence
as prior inconsistent statements to impeach the testimony of J.G., the victim of
the alleged crimes. If J.G.’s friends themselves were called to testify to J.G.’s
prior inconsistent statements, such hearsay could be permitted in evidence
under KRE 801A provided that a proper foundation were laid.53 But because
no hearsay exception applies to Trooper Dreisbach’s testimony, it was properly
excluded under KRE 802. So we find the trial court did not abuse its
discretion in ruling that Trooper Dreisbach’s testimony regarding the interviews
of J.G.’s friends was inadmissible hearsay.
K. The trial court did not abuse its discretion in denying Henson’s
motion to limit the scope of the Commonwealth’s cross-examination
of Henson’s character witnesses.
On the second day of trial, Henson filed a motion with the court
requesting that the scope of cross examination of his character witnesses be
53The Commonwealth succinctly and accurately outlines the series of events
that would have been required to find Trooper Dreisbach’s hearsay-within-hearsay
testimony admissible:
J.G.’s out-of-court statements to her friends would have been admissible
under KRE 801[A](a)(1), had she testified inconsistently at trial. However,
under KRS 613(a), Henson had to first confront J.G. with her alleged
prior inconsistent statements. If J.G. denied making the statements,
Henson could have called J.G.’s friends to testify as to what J.G. had
earlier told them. Only if J.G.’s friends denied that J.G. had made the
statements, could Henson call Trooper Dreisbach to testify as to what
J.G.’s friends had told him.
22
preemptively limited to Henson’s reputation for honesty and veracity. The trial
court denied the motion, explaining that the scope of cross-examination is
determined by the testimony of Henson’s witnesses on direct examination and
limited to those traits or characteristics raised during direct examination.
The scope of cross examination falls squarely within the sound discretion
of the trial court.54 So we review the court’s ruling on a motion to limit the
scope of cross examination under an abuse of discretion standard.55 Under
KRE 404(a)(1), the Commonwealth may only offer evidence of the defendant’s
bad character in rebuttal of evidence of the defendant’s good character offered
by the defense. However, the evidence that may be offered by the
Commonwealth is limited in scope to that which rebuts the good character trait
proffered by the defendant.
In this case, the trial court properly stated that the scope of permissible
cross examination is determined by the testimony given by the witness on
direct examination and not by counsel’s questions on direct examination.
Thus, the trial court properly declined to preemptively limit the scope of cross-
examination before the witness has testified on direct. We find that the trial
court did not abuse its discretion in refusing to grant Henson’s motion to limit
the scope of the Commonwealth’s cross-examination.
54 Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997).
55 Baker v. Kammerer, 187 S.W.3d 292, 297 (Ky. 2006).
23
L. The trial court’s admonition to the jury cured any prejudice that
may have been created by the Commonwealth’s misstatement about
the findings of Henson’s domestic-violence hearing.56
During the Commonwealth’s cross-examination of Henson, the
Commonwealth mentioned a previous domestic-violence order that had been
entered against Henson for sexual abuse. Henson objected, stating that the
domestic-violence order was not entered upon a finding of sexual abuse. The
trial court sustained his objection and admonished the jury to disregard the
Commonwealth’s statement that the domestic-violence order was issued upon
a finding of sexual abuse. Henson now argues, without citation to binding
authority, that the trial court’s admonition did not cure the error and the jury
was improperly prejudiced against him.
The decision to give an admonition to the jury is an evidentiary ruling
that we review under an abuse-of-discretion standard.57 We will disturb the
trial court’s decision only if it is arbitrary, unfair, unreasonable, or
unsupported by sound legal principles.
A jury is presumed to follow a curative admonition and thus such an
admonition cures any error.58 The presumption of an admonition’s curative
effect is overcome only by showing that there is either an “overwhelming
probability that the jury will be unable to follow the admonition and there is a
56 In this section of Henson’s brief, he also raises arguments concerning
allegedly improper evidence regarding Child Protective Services, the existence of an
allegedly incriminating note found in J.G.’s backpack, and the spoliation of evidence.
Because none of these arguments are included in Henson’s Statement of Points and
Authorities nor are they sufficiently briefed in compliance with CR 76.12, we decline to
address them here.
57 Goodyear Tire & Rubber Co., 11 S.W.3d at 577.
58 Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021).
24
strong likelihood that the effect of the inadmissible evidence would be
devastating to the defendant” or that the question was highly prejudicial or
inflammatory and lacked any factual basis.59
In this case, upon Henson’s request, the trial court gave the jury an
admonition. The jury was told to disregard the Commonwealth’s question as it
related to a domestic-violence order entered upon a finding of sexual abuse.
Henson did not object to the language of the admonition, nor did he request
that the trial court declare a mistrial. Given the curative presumption of the
admonition and Henson’s failure to preserve any other objection, we find that
the trial court did not abuse its discretion in admonishing the jury in order to
cure any error created by the Commonwealth’s mischaracterization of this
evidence.
M. The trial court did not abuse its discretion in overruling Henson’s
objections to admission of images of a “kegerator” into evidence.
At trial, the Commonwealth introduced into evidence a series of
photographs taken at the home where J.G. and Henson resided at the time of
the alleged crimes. Two of those photographs depicted a kegerator—a small
refrigerator that holds a keg from which beer can be dispensed. The
photographs were authenticated by Joy, and she stated that she did not know
when the photographs were taken. Henson did not allege that the photographs
inaccurately represented the rooms and items they depicted. While on the
stand, Trooper Dreisbach testified that he took the photographs during his
59 Id. (citing Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003));
Johnson, 105 S.W.3d at 441.
25
investigation. Henson did not dispute the presence of the kegerator in the
home.
The determination of the sufficiency of the authentication of evidence is
within the discretion of the trial court.60 We review the trial court’s
determination of the authenticity of evidence for abuse of discretion.61
Generally, the foundational authenticity of a photograph can be laid by
testimonial verification of its fair and accurate portrayal of that which it is
supposed to represent.62 It is unnecessary for the witness testifying as to the
authenticity of a photograph to be the photographer, nor does he or she need
to have personal knowledge of the time when the photograph was taken.63
Henson’s brief is critically deficient on this argument. First and
foremost, he makes insufficient reference to the record documenting where this
argument is preserved. Henson’s reference to “Post Trial Motions ROA 133-
162” does not constitute a citation to the record sufficient to inform this Court
of the location of his properly preserved arguments. CR 76.12 requires that an
appellant’s argument begin with a statement of preservation “with reference to
the record showing whether the issue was properly preserved for review and, if
so, in what manner.” A reference to Henson’s post-trial motions is not such a
reference. Although this argument may have been preserved by objection at
60 Braufman v. Commonwealth, 612 S.W.3d 850, 866 (Ky. 2020).
61 Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004).
62 KRE 901; R. Lawson, The Kentucky Evidence Law Handbook § 11.05, at 599
(3d ed. Michie 1993).
63 Litton v. Commonwealth, 597 S.W.2d 616, 618-19 (Ky. 1980).
26
trial, that objection is not cited in Henson’s statement of preservation as
mandated by CR 76.12.
Second, within Henson’s argument, the facts asserted do not align with
the citations made to the trial record. Additionally, he does not state with
specificity those exhibits with which he takes issue. This Court will not search
the trial record for verification of Henson’s asserted facts. This Court has made
clear that it “will not sift through a voluminous record to try to ascertain facts
when a party has failed to comply with its obligation under [the] Kentucky
Rules of Civil Procedure . . . to provide specific references to the record.”64
Third, Henson’s argument on this topic is not founded on sound legal
principles. His argument makes no citation to either binding or persuasive
legal precedent. Instead, he simply claims the evidence admitted was “highly
prejudicial,” though he provides no legal foundation for claiming that the trial
court erred in admitting the evidence. Henson’s threadbare and inaccurate
recitation of facts does not form an intelligible argument, and we refuse to craft
one for him.
Due to the incoherence and deficiency of Henson’s argument on this
matter, we summarily affirm the ruling of the trial court that the photos were
sufficiently authenticated and properly admitted into evidence.
N. The trial court did not abuse its discretion in refusing to instruct
the jury on attempted sodomy or voluntary intoxication.
Upon conclusion of the evidence, Henson requested that the trial court
instruct the jury on voluntary intoxication and attempted sodomy. The trial
64 Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009).
27
court denied this request, instead instructing the jury on first-degree sodomy
and first-degree sexual abuse as charged in the indictment. Henson now
contends that the trial court erred in denying his proposed instructions.
A trial court’s decision to instruct the jury on a specific claim is reviewed
for abuse of discretion.65 We will disturb the trial court’s decision only if we
find it to be unfair, unreasonable, arbitrary, or unsupported by sound legal
principles.
A trial judge has a duty to instruct the jury on “the whole law of the
case,” which includes instructions that might apply to every state of the case
supported to any extent by the testimony provided.66 But the duty to instruct
the jury on lesser-included offenses, like attempted sodomy, does not extend
past the evidentiary foundation laid at trial.67 In determining which issues
should be submitted to the jury, the trial court should take into account the
totality of the circumstances.68
In this case, it was within the trial court’s discretion to determine that
the evidence presented at trial could not support a reasonable inference that
Henson could be guilty of attempted sodomy. As Henson produces no legal
basis in support of his position, nor does he provide specific facts that he
alleges support an instruction on attempted sodomy, we find that the trial
65 Herp v. Commonwealth, 491 S.W.3d 507, 512 (Ky. 2016).
66 Williams v. Commonwealth, 208 S.W.3d 881, 883 (Ky. 2006).
67 Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).
68 Commonwealth v. Collins, 821 S.W.2d 488, 491 (Ky. 1991).
28
court did not abuse its discretion in refusing to instruct the jury on attempted
sodomy.
Similarly, the trial court did not err in refusing to instruct the jury on
voluntary intoxication. Neither first-degree sodomy nor first-degree sexual
abuse has a requisite intent element.69 There is no mental state required for
the commission of these crimes. As a result, this Court has held that voluntary
intoxication is not a defense to sodomy.70 Because there is no requisite intent,
we find, on the same grounds, that voluntary intoxication is not a defense to
sexual abuse. Therefore, the trial court did not abuse its discretion in refusing
to instruct the jury on the defense of voluntary intoxication.
O. The trial court did not err in overruling Henson’s Motion for a
Directed Verdict of Acquittal.
At the end of the Commonwealth’s case-in-chief, Henson moved for a
directed verdict of acquittal, arguing that the Commonwealth had produced
insufficient evidence to support a guilty verdict on the counts with which he
was charged. In support of this position, Henson stated that there was no
evidence of his sexual gratification; that his statements to police were
improperly admitted into evidence; that there was no evidence of penetration
provided; and that no evidence was provided to corroborate J.G.’s accusations
against him. Upon the Commonwealth’s refutation of each of these arguments,
the trial court denied Henson’s motion for a directed verdict of acquittal.
69 See KRS 510.070; KRS 510.110.
70 Malone v. Commonwealth, 636 S.W.2d 647, 648 (Ky. 1982).
29
In reviewing a trial court’s denial of a motion for a directed verdict, we
consider whether, under the evidence as a whole, it would be clearly
unreasonable for a jury to find the defendant guilty of the offenses charged.
Only upon such a finding can we conclude that an appellant was entitled to a
directed verdict of acquittal.71 We construe all evidence in the light most
favorable to the Commonwealth, the non-moving party.72
Several of the grounds on which Henson moved for a directed verdict are
clearly without merit. First, he contends that no evidence was provided that he
intended to receive sexual gratification from touching J.G. However, intent
may be inferred from the defendant’s actions and the circumstances
surrounding those actions.73 Additionally, the jury is permitted broad latitude
in inferring intent of the defendant from the evidence presented.74 Second,
Henson alleges that the Commonwealth’s case is inadequate because no
evidence was offered that he penetrated the victim. However, this Court has
long held that penetration is not a necessary element to the crime of sodomy.75
Last, Henson alleges that, without corroboration, J.G.’s accusation against him
is not sufficient evidence under which a jury could convict him. We disagree.
It is within the purview of the jury to weigh J.G.’s accusations and determine
her credibility.76
71 Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001).
72 Jones, 283 S.W.3d at 668.
73Edmondson v. Commonwealth, 526 S.W.3d 78, 87 (Ky. 2017) (quoting
Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988)).
74 Id.
75 Hulan v. Commonwealth, 634 S.W.2d 410 (Ky. 1982).
76 Commonwealth v. Cox, 837 S.W.2d 898, 900 (Ky. 1992).
30
The grounds on which Henson’s motion for a directed verdict rest are
insufficient. Henson understands neither the law nor the role of the jury. The
Commonwealth presented sufficient evidence in its case in chief under which a
reasonable jury could find the elements of first-degree sexual abuse and first-
degree sodomy to have been met. As such, we find that the trial court did not
err in denying Henson’s motion for a directed verdict of acquittal.
P. The trial court did not err in giving an Allen charge to the jury in
response to their note at 9:05 p.m.
At 10:50 a.m. on March 18, 2020, the parties completed their closing
arguments, and the jury began deliberations. At 9:05 p.m., the jury sent a
note to the trial court judge, reading, “Q: We are [at] a hung jury (11-1) and the
final juror says there is not anymore evidence that can swing them one way or
another? Do we continue to deliberate?” The trial court ordered the jury to
return to the courtroom where he read them an Allen charge.77 The charge
given by the judge was taken verbatim from RCr 9.57. The judge then ordered
the jurors to return to the jury room to continue deliberations.
In reviewing the trial court’s provision of an Allen charge to the jury, we
consider whether, under the totality of the circumstances, the charge coerced
the jury to come to an agreement.78 The U.S. Supreme Court has held that
there is no error in providing such an instruction to the jury in an effort to
prevent a hung jury.79
77 Allen v. United States, 164 U.S. 492, 501 (1896).
78 Gray v. Commonwealth, 480 S.W.3d 253, 272 (Ky. 2016).
79 Allen, 164 U.S. at 501.
31
In this case, in the face of a deadlocked jury, the trial court did precisely
what this Court has instructed trial courts to do under RCr 9.57(1).80 Careful
review of the trial court record reveals no evidence of coercion in the court’s
instruction to the jury. In the absence of other coercive factors, we decline to
find an abuse of discretion to have occurred when the trial court followed this
Court’s explicit instructions.
Henson also contends that the trial court’s provision of an Allen charge
was improper because the trial court was aware of the vote count among the
jurors at that time. Although under RCr 9.57(2) the trial court is not permitted
to poll the jury during its deliberations, in this case, the foreperson voluntarily
revealed the numerical division of the jurors without prompting from the trial
court. This information was volunteered to the trial court, outside the presence
of the other jurors, and we do not find that such a revelation had a coercive
effect on the jury.
Upon receiving the unsolicited poll of the jury, Henson requested that the
poll be shared with the parties. The trial court denied this request. Henson
now claims that this constitutes a grievous error, but he fails to cite any rule or
precedent under which he is entitled to this information. Both Henson and the
Commonwealth were denied this information, and we find that such a denial
neither prejudiced Henson nor constituted error on the part of the trial court.
In his brief, Henson argues extensively about the impropriety of a trial
court providing a jury with multiple Allen charges. This argument lacks merit
80 Commonwealth v. Mitchell, 943 S.W.2d 625, 627 (Ky. 1997).
32
on several grounds. Primarily, the trial court in this case only offered one Allen
charge to the jury. Further, Henson clearly and consistently misunderstands
the distinction between mandatory, binding authority and those authorities
that are merely persuasive to this Court. Henson’s brief makes many citations
to the Ninth Circuit Court of Appeals and its rule that repetition of an Allen
charge to a deadlocked jury constitutes reversible error. However, he fails to
recognize that the Ninth Circuit is the only circuit that has adopted such a
rule. Because this issue is not factually before us today, we decline to take a
position on it.
Lastly, Henson contends that provision of an Allen charge to a jury with a
single “holdout” juror is necessarily coercive. He cites to the Ninth Circuit
Court of Appeals’ rule that when the trial court inquires into the numerical
division of the jurors and then provides them an Allen charge, the charge is per
se coercive and requires reversal. We decline to adopt such a rule. Instead, we
consider the totality of the circumstances in determining whether the trial
court coerced the jury into coming to a verdict.
After careful consideration of the totality of the circumstances, we find
that the trial court’s 9:05 p.m. Allen charge to the jury was not coercive and
thus the trial court did not err in providing such an instruction.
Q. The trial court did not err in communicating with the jury at 12:11
a.m.
After the 9:05 p.m. Allen charge was delivered, the jury continued to
deliberate until approximately 12:11 a.m. when the judge sent a note to the
jury, reading, “Jurors, Do you believe continued deliberations would be
productive to reach a verdict? If yes, do you want to continue to deliberate
33
tonight or break until later on Thursday? If you take a break, I will make
arrangements for each of you to stay in a hotel tonight.” Henson consented to
the judge’s sending this note to the jury while the Commonwealth objected. At
1:08 a.m., the jury returned to the courtroom and announced its verdict—
Henson was guilty of both first-degree sodomy and first-degree sexual abuse.
Henson now contends that the trial court’s note to the jury was coercive
and inappropriate. In determining whether the actions of a trial court were
coercive to the jury, we consider whether the instruction provided forced an
agreement on a verdict or whether it simply forced deliberation which resulted
in an agreement.81
Before communicating with the jury, the trial court consulted the parties
regarding whether they wanted the jury to continue deliberating through the
night or to break until the next day. Henson recommended that the judge
interrupt the jury and send them his note. With this statement, Henson waived
any objection to the trial court’s communication with the jury, instead inviting
this supposed error. As this potential error was invited by Henson, it is not
subject to appellate review, and we decline to address it any further.
III. CONCLUSION
For the reasons stated, we affirm the judgment.
All sitting. All concur.
81 Bell v. Commonwealth, 245 S.W.3d 738, 742 (Ky. 2008), overruled on other
grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008).
34
COUNSEL FOR APPELLANT:
Dwight Preston
Lewis & Preston, PLLC
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Office of the Solicitor General
35