Austin Channing McGraw v. Commonwealth of Kentucky
2019 CA 001705
Ky. Ct. App.Jul 29, 2021Background
- Appellant Austin McGraw, then 24, was indicted for first-degree sodomy and first-degree sexual abuse for alleged sexual acts with B.B., a 15-year-old babysitter, occurring April 1–2, 2018.
- Allegations: McGraw drove B.B. to Taco Bell, offered money for a sex act, forced her head toward his crotch, later provided alcohol, and while she was highly intoxicated or unconscious engaged in oral and digital sexual contact.
- Police interviewed victims and witnesses; Detective Lawson interviewed McGraw. McGraw denied wrongdoing at trial.
- A jury convicted McGraw on both counts; he received concurrent sentences totaling 18 years. The trial court denied his motion for a new trial.
- McGraw appealed raising multiple claims: discovery violations (undisclosed incriminating statements), failure to grant mistrial for a comment implying invocation of rights, biased jurors, improper expert testimony and opening statement, admission of prior bad acts, insufficiency of evidence for forcible compulsion, and cumulative error.
Issues
| Issue | Plaintiff's Argument (McGraw) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Failure to disclose incriminating statements | Commonwealth failed to produce multiple incriminating oral statements per discovery order, prejudicing a he-said/she-said case | Commonwealth had broadly disclosed expected incriminating testimony and was not aware of some details; defense failed to preserve objection | No manifest injustice; disclosures were adequate and court reviews for manifest injustice; no reversal |
| Mistrial for comment about invocation of rights | Video showed detective asking if McGraw "was afraid" to talk (implying invocation); admonition insufficient—mistrial required | The question was phrased as a question, not fact; McGraw did not remain silent; jury admonition cured any error | Admonition was effective; no Johnson exception; no mistrial warranted |
| Impaneling allegedly biased jurors | Three venire members had family histories of sexual abuse; trial court should have struck them for cause | Jurors said they could be fair; two were peremptorily struck and one remained but voir dire showed impartiality | No palpable error or manifest injustice; no cause strike required |
| Alleged improper expert testimony (DNA comment/wine coolers) | Detective’s DNA/consumption comments amounted to improper expert/scientific opinion | Detective’s DNA remark not prejudicial; objection to wine-cooler remark was sustained and no admonition requested by defense | No manifest injustice; no reversible error on expert testimony objections |
| Improper opening statement (comparisons to child predators) | Prosecutor’s rhetorical comparison to predators was prejudicial and invited jury bias; mistrial needed | Opening broadly described evidence; trial court directed prosecutor to stick to evidence and prosecutor complied | Court sustained objection and ordered prosecutor to move on; any error harmless |
| Referring to alleged victim as "the victim" and prior bad acts | Use of "victim" labels and testimony implying prior bad acts denied presumption of innocence and notice requirements | Whaley allows referring to children as victims; prior-acts utterance was brief, unsolicited, and not relied upon | No manifest injustice; references permissible and any brief testimony harmless |
| Directed verdict on forcible compulsion/sodomy | Commonwealth failed to prove forcible compulsion for first-degree sodomy | Victim testified to being unconscious with penis in her mouth and prior forcive conduct; jury could infer lack of consent/threat | Evidence sufficient; reasonable juror could find forcible compulsion; directed verdict denied |
| Cumulative error/new trial | Multiple errors combined to deprive fair trial | Errors were individually harmless and not cumulatively prejudicial | No cumulative error; denial of new trial affirmed |
Key Cases Cited
- Pierson v. Coffey, 706 S.W.2d 409 (Ky. App. 1985) (appellate briefs nonconformity and consequence)
- Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990) (standard for appellate review when preservation rules not followed)
- J.M. v. Commonwealth, Cabinet for Health & Family Services, 325 S.W.3d 901 (Ky. App. 2010) (review for manifest injustice where preservation lacking)
- Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013) (definition of "manifest injustice")
- Thorpe v. Commonwealth, 295 S.W.3d 458 (Ky. App. 2009) (incriminating statement must be incriminating when made)
- Hoppenjans v. Commonwealth, 299 S.W.3d 290 (Ky. App. 2009) (admonition to jury presumed effective)
- Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003) (exceptions when admonition is not curative)
- Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) (palpable error and appellate review focus)
- Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014) (forcible compulsion grounded in lack of consent)
- Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (directed verdict standard)
- Suttles v. Commonwealth, 80 S.W.3d 424 (Ky. 2002) (single witness testimony can support conviction)
- Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky. 2003) (opening statement latitude)
- Thacker v. Commonwealth, 194 S.W.3d 287 (Ky. 2006) (harmless error standard)
- Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012) (cumulative-error doctrine)
- Whaley v. Commonwealth, 567 S.W.3d 576 (Ky. 2019) (children in sexual-abuse trials may be called "victims")
- Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009) (failure to request admonition after sustained objection waives error)