Case Information
*1 RENDERED: FEBRUARY TO BE PUBLISHED 2017-SC-000439-MR APPELLANT ROBBIE WHALEY ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHY LAPE, JUDGE NO. 15-CR-00792 COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT AFFIRMING
A Kenton Circuit jury convicted Appellant, Robbie Whaley, of seventeen counts: six counts of third-degree sodomy; criminal attempt commit third-degree sodomy; six counts first-degree abuse; three counts first-degree sodomy; and, final count, found be first- degree persistent felony offender. accordance jury
recommendation, fixed sentences totaling life without
possibility parole twenty-five years. now appeals matter right, Ky. Const. § 110(2)(b). asserts six claims error appeal. He claims erred by: (1) failing sever counts indictments, (2) allowing crimes, wrongs acts, (3) disallowing cross-examination pornographic images, (4) allowing expert testimony regarding anal
sodomy, (5) allowing complaining witnesses referred victims, and
(6) denying Whaley ’ s motion for mistrial. For following reasons, we affirm Whaley ’ s convictions and their corresponding sentences.
I. BACKGROUND was indicted on October 8, 2015, for live counts of third-degree
sodomy for offenses committed against Sander, 1 a minor less than sixteen years of age; three counts of third-degree sodomy; and one count of first-degree sexual abuse for offenses committed against Logan, a minor less than sixteen years age. He also indicted one count being a first-degree
persistent felony offender.
A year after his initial indictment, also indicted October 2016, for first-degree sodomy first-degree sexual abuse for offenses committed against Matt, minor less than twelve years age; for two counts first-degree sodomy three counts first-degree for offenses committed against John, minor less than twelve years age. originally moved sever
indictments one another hold two separate trials. However, hearing sever, requested sever indictments into four separate trials — separate events surrounding each alleged victims. denied this motion. keeping practices, throughout opinion, minor names will changed protect their anonymity.
We will now turn facts surrounding indictments. Whaley was mixed-martial-arts trainer classes at his residence. alleged victims from indictment both Whaley ’ s martial arts students.
Sander, first alleged victims, began training at Whaley ’ s residence in summer 2014. first sexual act that Sander testified
about was uncharged. Sander testified that initial contact with Whaley occurred Whaley ’ s vehicle, with minor both performing oral sex receiving oral sex Whaley.
Regarding charged acts, Sander testified that, while using kiwi- flavored lubricant, Whaley touched his mouth Sander ’ s penis Whaley ’ s bedroom. Sander also said he touched Whaley ’ s penis his mouth.
Further, Sander stated he inserted his penis into Whaley ’ s anus. Sander said that Whaley attempted put his penis Sander ’ s anus but was unable to.
Sander testified that after these incidents, he stopped visiting Whaley ’ s
residence. Soon after events question, police contacted Sander ’ s mother began investigation.
Logan Whaley ’ s next alleged victim. Logan said he began training Whaley ’ s residence but stopped after couple sessions. Logan continued visit residence after he stopped training. He he fifteen years old when touched him. He stated Whaley supplied marijuana moonshine during his visits residence. Logan stated touched Logan penis more than once.
Further, said he placed mouth penis more than once.
Logan testified first time Whaley touched him they on couch and he was fully clothed. He said that Whaley touched his penis and stopped when he told him to.
Logan said second time Whaley touched him, he (Logan) was intoxicated. Logan stated that he was on Whaley ’ s bed when Whaley pulled his
(Whaley ’ s) pants down and started touching Logan ’ s body. Logan said he put his mouth on Whaley ’ s penis, then told Whaley he did want to, and encounter ended. When asked if Whaley said anything about telling anyone, Logan stated that Whaley told him tell anyone. Logan testified that on third occasion he was also intoxicated. He stated that he was on Whaley ’ s bed and he placed his mouth on Whaley penis again. Logan said that on last occasion, he passed out intoxication. He said that he woke
Whaley penis penetrating his anus. Logan testified that he told Whaley get off him, and so. Logan said told him tell anyone about these incidents, but told mother what happened. Logan mother when Logan told her, she contacted police her worker, then took Child Advocacy Center upon their advice. arrested on August 6, offenses committed
against Sander Logan. indictment states offenses Sander occurred on between October 1, January 23, 2015. It stated offenses Logan occurred between July 15, July 15, 2015. released March 2016. *5 two remaining victims are Whaley ’ s twin nephews. The indictment states that offenses John and Matt occurred between June 11, and July 2016. nephews, John and Matt, were eight years old when they testified. John testified that he had used his hands touch Whaley ’ s penis and Whaley had used his hands touch his penis. Further, he said that he had also touched Whaley ’ penis with his mouth Whaley had touched John ’ penis with his mouth. He stated these occurrences each happened more than once. John testified Whaley showed him two boys doing stuff their private parts his television.
Matt Whaley made him perform oral sex bathroom residence. Further, he said Whaley had given baths touched his penis his hands during bath. Matt told cousin about what done, cousin text-messaged twins grandmother. police contacted twins were interviewed Children s
Advocacy Center. took stand denied committing any offenses
against four alleged victims. Further, denied supplying drugs or
alcohol.
II. ANALYSIS
A. Failure Sever argues abused its denying his sever, and, instead, holding single trial. We persuaded by argument. *6 initially moved to sever counts contained in the two indictments from one another and grant two separate trials pursuant to RCr 8.31. He so in a written request, requesting counts one-nine (counts against Sander Logan) be tried separately from counts eleven-seventeen
(counts against John Matt). However, hearing on sever, requested four separate trials opposed originally requested two. trial denied motion, determining circumstances of charged offenses similar.
This Court held in Garrett v. Commonwealth. interaction of RCr 9.12 RCr 6.18 allows charges
brought in separate indictments be joined for trial only when offenses are “ of same or similar character ” or are “ based same transactions connected together or constituting parts of a common scheme plan. ” When conditions set forth in RCr 6.18 RCr 9.12 present, trial judge has broad allow joinder of offenses charged in separate indictments. We review such decisions for of discretion. Nevertheless, be reversible, erroneous joinder offenses must be accompanied a showing prejudice defendant. showing prejudice cannot be based mere speculation, but must be supported record. S.W.3d 217, (Ky. 2017). Garrett Court further significant
factor in identifying prejudice from joining offenses single the extent which one offense would be inadmissible the offense. Id. citing Hammond 428-29 2012).
Also, Garrett cited precedent stating: Offenses closely related character, circumstance [,] time need be severed. If one offenses joined indictment would admissible separate other *7 offenses, the joinder of offenses generally will be prejudicial. Additionally, considerations of judicial economy the efficiency of avoiding multiple trials are reasons for joint trials.
Garrett, S.W.3d 223; citing Cohron v. Commonwealth, 306 S.W.3d 493-94 (Ky. 2010); see also Peacher 821, 2013). We will examine the relevant Kentucky Rules Criminal Procedure. RCr 6.18 reads:
Two (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in same indictment or information in a separate count for each offense, if offenses are same or similar character or based same or transactions connected together or constituting parts a common scheme or plan.
Regarding separate trials, RCr 8.31 reads:
If it appears a defendant or Commonwealth is or will be prejudiced by a joinder offenses or defendants indictment, information, complaint or uniform citation or by joinder for trial, court shall order separate trials counts, grant separate trials defendants or provide whatever relief justice requires. A motion for such relief must be made before jury sworn or, if there no jury, before any is received. No reference motion shall be made during trial. ruling defendant for severance may order attorney Commonwealth deliver for inspection camera any statements or confessions made defendants intends introduce trial. RCr 9.12 reads: may order two (2) or more indictments, informations,
complaints or uniform citations be tried together if offenses, defendants, if more than one (1), could have been joined single indictment, information, complaint uniform citation. procedure shall same if prosecution under a single indictment, information, complaint uniform citation. *8 Court Peacher v. Commonwealth: Because certain degree of prejudice is inherent the joinder of offenses, it is any indictment, has explained the “ prejudice calling severance other relief under RCr 9.16 undue prejudice, i.e., prejudice goes beyond inherent prejudice which unnecessary and unreasonable. Romans v. Commonwealth, 547 S.W.2d 128 (Ky. 1977). Although our rule mandates relief when such undue prejudice appears likely, we have entrusted application rule court's discretion, Debruler, 231 S.W.3d 752 and we have many times noted erroneous severance ruling does justify appellate relief unless it resulted actual prejudice party opposing ruling. Cohron v. Commonwealth, 306 S.W.3d 489 (Ky.2010) (citing Sherley S.W.2d 1994)). 838. argues joinder indictments caused be unfairly prejudiced, violated his Fifth Fourteenth Amendment rights, violated rights pursuant sections Two Eleven Kentucky Constitution. He supports argument stating [t]he proof concerning one unduly influenced jury when proof complaining witnesses allowed heard same jury. ”
Further, emphasizes differences between offenses: first two charges occurred years apart last two; two victims were family members two were related him; two victims seven years old when assaults occurred two were fifteen years old when assaults occurred.
In denying the motion to sever, the trial court found the circumstances surrounding the offenses were very similar. Specifically, it found that: acts were same or similar, they all involved an adult allegedly
sexually assaulting a child who authority over, either teacher, babysitter, a relative . . . they all took place residence, they took place, it seems, either bedroom or . . . bathroom, all of children invited for overnights, they all involved very same if not similar acts ... I think shows opportunity, intent, plan, absence of mistake modus operandi will overrule defendant motion to sever. We agree trial court, evidence introduced trial would have been admissible trial of other offenses. turning rules evidence, KRE states:
(b) Other crimes, wrongs, or acts. Evidence other crimes, wrongs, or acts admissible prove character person order show action conformity therewith. It may, however, be admissible:
(1) If offered some other purpose, such proof motive, opportunity, intent, preparation, plan, knowledge, identity, absence mistake accident; or
(2) If so inextricably intertwined evidence essential separation two (2) could accomplished without serious adverse effect offering party.
(Emphasis added).
As discussed above, denied sever grounds presented throughout single fell under 404(b). Specifically, pertaining four victims demonstrated very similar show opportunity, intent, plan, absence mistake modus operandi. its in *10 finding the evidence offered satisfies KRE 404(b). Therefore, the evidence each would have been admissible in separate trials. As we noted in Garrett, offenses closely related in character, circumstance [,] time need be severed. If evidence one offenses joined in the
indictment would be admissible separate trial offenses, joinder offenses generally will be prejudicial. at 223. Since evidence would have been admissible under KRE 404(b), trials not need be severed.
Not only would evidence admissible under 404(b), trial court ruling also conformity with relevant Kentucky Rules of
Criminal Procedure. As cited above, RCr 6.18 allows two or more offenses be charged same complaint if offenses same or similar
character. . . or constituting parts common scheme or plan.
hand, ruled, charged offenses occurred residence, authoritative role over each victim, presented same or similar each victim.
Under these circumstances, we do believe abused its joining offenses trial, or has identified unfair prejudice connected joinder sufficient require new trial.
B. Evidence Other Crimes, Wrongs Acts argues erred allowing into provided drugs alcohol Sander Logan, pornographic images internet web history, uncharged act sodomy against Sander.
On appeal, [w]e will disturb ’ s decision to admit evidence absent abuse discretion. Matthews v. Commonwealth, 163 S.W.3d 11, (Ky. 2005) citing Partin v. 918 S.W.2d 219, 222 (Ky. 1996). The test for whether judge ’ s decision
arbitrary, unreasonable, unfair, or unsupported sound legal principles.
Commonwealth English, 1999).
1. Evidence Drugs or Alcohol Commonwealth filed 404(c) notices seeking to admit evidence that Whaley provided drugs or alcohol to Sander Logan prior to sexual assaults. motion regarding Sander indicated that Commonwealth intended
to introduce evidence that Whaley provided alcohol to Sander on one occasion, which provided scheme or plan Whaley reduce Sander ’ s resistance or entice him alcohol so that Whaley could perform sexual acts on Sander. regarding Logan indicated that intended
introduce evidence Whaley provided drugs or alcohol Logan prior sexual assaults. based reasoning went scheme or plan reduce Logan resistance or entice drugs alcohol so could perform Logan. objected admission evidence, overruled objection. At trial, only Logan testified regarding question. argues Logan testimony drugs alcohol served no legitimate purpose trial. However, Logan was *12 intoxicated by drugs or alcohol provided by Whaley before each three times Whaley engaged in sodomy or attempted sodomy. Alford, Appellant charged first degree
sodomy and abuse. 2011). Appellant forced her her sister drink wine coolers and
had forced her smoke marijuana one occasion. This Court Alford that, [t]he testimony regarding marijuana alcohol use Appellant forced use children necessary for a full presentation case. . .
. Id. (other citations omitted). upheld admission testimony. Likewise, at hand, testimony regarding Logan ’ s intoxication during sodomy necessary for a full presentation.
Accordingly, we find err admitting drug alcohol usage.
2. Pornographic Images filed a 404(c) notice indicating its intent admit pornographic images internet web history taken a computer seized at ’ s residence. It sought admit images taken they depicted very young men teenagers having sex one another.
During John interview Child Advocacy Center, indicated made watch videos depicting men having sex television bedroom.
Further, month after arrest, police executed search warrant residence electronic devices. officers seized HP laptop a *13 Toshiba laptop, which were forensically searched. search the HP laptop revealed thumbnail photo images young adult males engaging sexual acts each other.
Whaley filed a to exclude computer evidence. allowed evidence. Further, Whaley argues that no witness identified introduced photographs as having been shown witness by Whaley.
During John testimony, said that had computer that could hooked up television. He stated that showed video boys doing stuff their private parts. Further, Sander that had computer hooked up television bedroom. However, Sander testify regarding pornography. asserts pornographic pictures prejudicial “ since images could provide any additional information indicted offenses. He argues prejudice, which presumed by very nature pictures, far outweighs any probative value such should have never been admitted shown jury. ” held Jones must identify sexual image image they been shown defendant. 2007). Specifically, we made
no effort hand link these sexually explicit images any contact. ... Id. 161. We find it error allow these pornographic images into absent such identification. However, *14 we hold this error was harmless. Regarding harmless error analysis, this in Hall v. Commonwealth:
We must next determine whether error warrants reversal of Hall's conviction. Since was non-constitutional evidentiary error, we apply test laid out in Winstead v. 283 S.W.3d 678, 688-89, n.l (Ky.2009), determine whether error was harmless. Such error may deemed harmless, . . . if reviewing can say fair assurance judgment was substantially swayed error. Id. at 689 (citing Kotteakos United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The inquiry is simply ‘ whether there enough [evidence] support result, apart from phase affected error. It rather, even so, whether error itself substantial influence. If so, if one left grave doubt, conviction cannot stand. Id. (quoting Kotteakos, U.S. 765, S.Ct. 1239). 827-28 2015). The pornographic images seized HP laptop residence admitted through presenting images Commonwealth witness, Campbell County detective electronic crimes unit, Steve Kush. The Commonwealth entered HP laptop, well Toshiba laptop, into evidence. Kush he examined both laptops. Commonwealth asked Kush if found any pornographic images
computer, which Kush replied affirmative. Commonwealth asked Kush if pornographic images depicted young white males engaged white males, which Kush also replied yes. presented exhibits containing pornographic images Kush during testimony. Kush stated images indeed *15 ones viewed on computer. The pornographic images admitted through detective Kush testimony, and sent jury room. The images
aligned with John testimony images Whaley had shown him on computer.
John regard pornographic images, stating that shown him two boys television doing same things wanted do, i.e., “ stuff their private parts. ” We persuaded admittance these pornographic images substantially swayed judgment. error committed was harmless. After thorough
review record weight sufficiency other evidence, we hold judgment was substantially swayed erroneous admission these images.
3. Evidence Uncharged Sodomy filed KRE 404(c) notice introduce evidence sexually assaulted abused Sander another (uncharged) occasion Boone County. motion stated incident disclosed Sander interview Child Advocacy Center. It further stated evidence being introduced pursuant KRE 404(b)(1) KRE 404(b)(2). objected overruled objection. Lopez Commonwealth: 404(b)(1) states “ crimes, wrongs, or admissible unless offered prove motive, opportunity,
intent, preparation, plan, knowledge, identity, absence mistake accident. Such also admissible [i]f so *16 inextricably intertwined with evidence essential separation of two (2) could accomplished without serious adverse effect on offering party. ” KRE 404(b)(2). Furthermore, “ evidence of similar acts perpetrated against the same victim are [sic] almost always admissible ” prove intent, plan, absence mistake accident. Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002).
459 S.W.3d 867, 875 (Ky. 2015).
Sander presented testimony regarding this incident. As discussed above, his first sexual encounter with was in ’ s car. He said made Sander perform oral sex on him, then performed oral sex Sander.
Consistent Court precedent, “ evidence similar acts perpetrated against same victim almost always admissible . . . . ” Noel v.
Commonwealth, S.W.3d 923, 931 (Ky. 2002). Applying rule facts in Harp Court upheld admission evidence regardless whether conduct specifically contained indictment against [the appellant]. [The appellant] unsuccessfully sought exclude evidence uncharged contact [the victim]. 2008). 404(b) prior bad acts Harp included appellant
exposing genitals multiple occasions. reasoned that: we do perceive any prejudice suffered Harp sufficient overcome general rule admissibility similar perpetrated against same victim. Thus, we find no error decision admit 404(b) question. Id. 822-23 (emphasis added). *17 standard quoted Harp, evidence similar acts perpetrated against same victim is almost always admissible, is clearly applicable at hand as initial act is similar sexual acts listed the
indictment. Therefore, uncharged act sodomy would have been
admissible evidence under Harp KRE 404(b). argues allegations so inextricably intertwined
under KRE 404(b)(2). However, discussed above, almost always finds evidence similar against same admissible. Noel, 76 S.W.3d at 931. Further, argues there no independent corroborating evidence initial act sodomy make evidence admissible under 404(b). insists evidence serves no legitimate purpose at trial, potential prejudice substantially
outweighed any probative value. These arguments fail, portrayed Harp.
No independent corroborating evidence necessary similar act committed upon same victim. err allowing this evidence.
C. Cross-examination Regarding Pornographic Evidence As discussed above, pornographic images admitted at trial. attempted cross-examine Matt John father boys looking pornography phone. sustained objection.
On appeal, [w]e will disturb decision admit absent discretion. Matthews, citing Partin, *18 S.W.2d at 222. “ test abuse discretion whether trial judge ’ s decision was arbitrary, unreasonable, unfair, or unsupported sound legal principles. English, S.W.2d at 945.
Applying this test to case at bar, we will overturn trial court ’ s decision, its sustaining Commonwealth ’ s objection.
Irene Clark, mother child, Matt John ’ father said he had been surprised when he caught one boys on phone looking at pornography. During cross-examination Matt John father, asked father if recalled saying . . . to let boys on phone tablet . . . because you caught them looking at porn your phone. Commonwealth objected this question, based on rape shield. objection sustained admonished jury disregard question. addressed issue Basham 2014). Basham, appellant argued
erred barring introducing had previously been exposed sexually explicit material internet. Id. 418. Similar hand, [t]he objected, arguing prior behavior sexual predisposition thus subject ‘ rape shield provisions defense failed *19 comply the rule requirement that written filed at least days before trial. ” Id. Basham, much like Whaley, argued that: . . . the proposed evidence of [the victim s] incidental exposure to pornographic websites neither “ evidence offered to prove that [the victim] engaged sexual behavior, ” KRE 412(a)(1), nor evidence offered to prove [the victim]'s sexual predisposition, 412(a)(2). He contends that instead alternative-source-of- knowledge evidence offered to rebut the sexual innocence inference, which makes evidence defense.
Id. Basham further held:
[The victim] was eight years old at the time she made her initial report description molestation. That being case, an alternative source knowledge could have probative force rebut an inference that she would only have been able describe charged acts if they had fact occurred. In her report abuse, [the victim] described various including vaginal intercourse. If had been she viewed websites depicting men women engaged intercourse, would tend rebut inference only way eight- year-old knew about sex was through Basham's abuse.
Id. 419-20. Basham case at hand similar victim in Basham testify actual content websites. only presented testimony websites had shown naked people. at hand, testimony objected consisted asking father if he had told let twins use phone tablet computer because he caught John looking pornography. As Basham, there no testimony presented pornography father caught child
watching. Basham further held:
But merely seeing images naked people does provide *20 alternate source [the s] knowledge specific behaviors she described her allegations against Basham. Since offer proof failed demonstrate that [the victim] was exposed prior source knowledge about specific sex acts charged, it was not probative or relevant, was therefore inadmissible. Id. at 420. trial court ruled that was not admissible under KRE even had it been admissible, had not given notice under
412(c). requested testimony put avowal.
We affirm ruling grounds. We hold, consistent reasoning Basham, offer proof failed
demonstrate [the victim] was exposed prior source knowledge about specific sex acts charged, it was not probative relevant, was therefore inadmissible. at 420.
Although John showed images boys doing stuff their private parts, (the specific sex acts charged), question cross-examination issue not specific sex charged. inadmissible, it probative relevant. its discretion disallowing cross-examination.
D. Expert Witness Testimony argues abused its allowing Dr. Berkeley Bennett, who examined Matt John while they Child Advocacy Center, testify she would necessarily expect see
2 KRE 412(a) reads: Evidence generally inadmissible. following not admissible in any civil criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) (c):
(1) Evidence offered to prove any alleged victim engaged sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition. injury after an anal sodomy. A trial court determination to whether to allow expert opinion testimony under KRE 702 3 reviewed for an abuse discretion. Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky. 1999). asked Dr. Bennett if she would expect to see injury anal sodomy. objected allowed Dr. Bennett
testify her opinion she would not necessarily expect see injury anal sodomy. did abuse its discretion allowing Dr.
Bennett testify her opinion.
Consistent holding Collins 1997), Dr. Bennett qualified under an expert due her knowledge, experience training. Collins, rape had medical report indicated she had an
intact hymen. its allowing expert witness offer testimony it uncommon women who have numerous encounters still have hymen. Id. 574. *22 reads: If scientific, technical, or specialized knowledge will
assist trier of fact to understand or to determine a fact in issue, a witness qualified as an expert knowledge, skill, experience, training, or education, may testify thereto in form an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data; (2) The testimony product reliable principles and methods; and (3) witness has applied principles methods reliably to facts case. Dr. Bennett testimony clearly assisted trier fact to understand a
fact in issue, i.e., anal sodomy may appear in physical examination. trial its allowing Dr.
Bennett expert testimony.
E. Use Word Victims ” filed motion limine for an order instructing representatives witnesses, to abstain making any direct or indirect reference whatsoever, before prospective jurors or jury Sander, Logan, John Matt victims. overruled this motion. contends he entitled to reversal remand new because denied limine allowed the
children referred as victims. Specifically, states allowing Commonwealth its witnesses express [their] opinion[s] as whether [the children] victims invasion upon province jury. ” its opening statement, referred children victims four times. Further, Elsmere Police Department detective Tony Embry- referred children victims. made no objection those
references. cites Arnett (1935) support
of argument its witnesses expressed a personal belief accuser telling truth is guilty referring to children as victims.
In Arnett, appellants convicted selling liquor habitual drunkard. During trial, witnesses regarding how often they had seen purchaser drunk. Arnett held . . . witnesses should be permitted express their opinions conclusions . . . but should confine their such facts as when, where, how often they seen [the purchaser] drunk. Id. 277.
Arnett distinguishable hand as Arnett definition habitual drunkard provided incorrect, thus resulting reversible error. Id. Referring accusers as alleged victims during course would be cumbersome untenable. Identifying group children manner no way constituted judgment identity perpetrator these crimes. reference children victims would unduly prejudicial. fact, it would be no more so than reading indictment listing charges against Whaley.
Furthermore, three Kentucky Revised Statutes apply both adults children, KRS 510.110, 510.120, *24 510.130 refer to subject child as a victim. trial not abuse its discretion in denying motion in
limine allowing children be referred victims. F. Post-Trial Motion for Mistrial argues record is incomplete for review on appeal.
Specifically, argues record is incomplete because certain photographic jury questions (which been answered writing but not placed record) went jury room during deliberations recovered after conclusion trial. Clearly, a desirable
outcome. To protect record, trial courts should always collect all exhibits
Regarding incomplete records for review appellate courts, [i]t has long been that, when the complete record before the appellate court, that court must assume that the omitted record supports the decision the trial court. Commonwealth Thompson, 1985).
Therefore, we must assume that if there missing portions the record provided us, the missing portions support the trial court ’ s decision. However, hand, court requested that both parties provided duplicates photographs admitted into well written jury questions were placed record. Commonwealth states "... prosecutor and defense attorney represented court they knew which photographs been introduced, and they provided
duplicates. It further states [t]he prosecutor also provided written list questions jury asked during deliberation trial court ’ s responses. ” court found its Judgment Sentence Plea Guilty
after motion for mistrial overruled, made finding photos presented for record true accurate photos both defense ’ s original exhibits.
Aligned precedent set Thompson, even if record considered incomplete for review, its denying mistrial.
III. CONCLUSION For foregoing reasons, we affirm convictions sentence. *26 Minton, C. J.; Hughes, Keller, Lambert, VanMeter Wright, JJ., sitting. All concur. COUNSEL FOR APPELLANT:
Jeffrey Brunk Brunk Firm, PLLC
Trisha Brunk Brunk Firm, PLLC
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General Kentucky
James Daryl Havey
Assistant Attorney General preserve all notes jury before jury is excused. made an oral written for a mistrial based argument. trial overruled motion. Hammond v. Commonwealth: decision declare a mistrial properly within sound discretion court. A mistrial an extreme remedy should be resorted only when there appears record a manifest necessity for such an action an urgent real necessity. A manifest necessity can be understood be an urgent need new consideration totality circumstances. As such, ruling declaring mistrial will disturbed absent court. 44, (Ky. 2016) quoting Gray 480 S.W.3d 2016).