KYLE SHEETS V. COMMONWEALTH OF KENTUCKY

Kyle Sheets lived with his wife, Rhonda, and her two minor children,

Michelle and Adam,' in a small, two-story residence in Elsmere, Kentucky.

In August 2012, then-nine-year-old Michelle told a friend that Sheets

had previously made her "suck his dick." Adam, thirteen years old at the time,

overheard this and told their mother. Rhonda immediately confronted Sheets

1 Consistent with this Court's present practice, "Michelle" and "Adam" are pseudonyms used to identify the minor children.

2

about the allegations, which he denied. The next day, Rhonda took Michelle

for a drive to talk privately. According to Rhonda, Michelle changed her story

during the drive.2 Ultimately, Rhonda disbelieved Michelle's assertions and

took no further action at that time.

Several months later, the Department of Community Based Services

(DCBS) began an investigation into the allegations. 3 Sheets agreed to move out

of the residence while the allegations against him were investigated, and the

Elsmere Police Department was contacted. Michelle was referred to the

Northern Kentucky Children's Advocacy Center (CAC) in December 2012. A

forensic interview was conducted during which Michelle reported a history of

sexual contact with Sheets, including penile-vaginal, penile-anal, oral-vaginal

contact, and contact with sex objects. The CAC's medical director, Dr.

Berkeley Bennett,4 then conducted a full physical examination, which was

normal and revealed no physical evidence of abuse. At trial, Dr. Bennett

testified that the lack of physical findings of abuse was not particularly relevant

because children heal quickly and that, as a result, it is quite common for child

sexual abuse victims not to have any physical symptoms of such abuse when

examined.

2 The trial court sustained the Commonwealth's objection to the introduction of testimony by Rhonda about what Michelle changed her story to. The exclusion of that testimony is not an issue on appeal.

3 It is unclear how Michelle's allegations were brought to the attention of DCBS.

4 Dr. Bennett is board-certified in child-abuse pediatrics.

3

Because of the history Michelle provided during her forensic interview

with CAC staff, Dr. Bennett also ordered testing for sexually-transmitted

diseases. Michelle tested positive for gonorrhea. As a result, police obtained a

search warrant to test Sheets for gonorrhea, and the results of that test were

negative. Rhonda also tested negative for gonorrhea.

Because of Michelle's positive gonorrhea test, Dr. Bennett had her

undergo a follow-up test and treatment at a hospital one month later. The

results of the follow-up test were negative. Dr. Bennett testified that the

disparity in the two tests could have several explanations: that the follow-up

sample obtained by the hospital may have differed from the first sample

obtained by the CAC due to potential failures by the hospital to follow rigorous

protocols in administering the test; that the infection may have spontaneously

resolved in between the two tests, which is not uncommon with young

children; or that the first test was a false positive, which Dr. Bennett thought

unlikely. In the end, Dr. Bennett estimated an eighty to ninety percent

likelihood that Michelle actually had been infected with gonorrhea when she

was tested by the CAC.

Also as a result of Michelle's allegations, police obtained a warrant to

search the Sheetses' residence. There, in a drawer in the Sheetses' bedroom,

they found several sex objects and lubricants, pornographic movies, and a

digital camera with a memory card containing four homemade pornographic

videos of Rhonda and Sheets. Police also discovered a handgun in the

Sheetses' bedroom closet.

4

Sheets was charged with incest, two counts of first-degree sodomy, first

degree rape, first-degree sexual abuse, distributing obscene matter to a minor,

being a second-degree persistent felony offender (PFO), and possession of a

handgun by a convicted felon. At trial, the Commonwealth moved for and was

granted dismissal of the first-degree rape, incest, and second-degree PFO

charges. The trial court also granted Sheets's motion for a directed verdict on

the charge of distributing obscene matter to a minor. The handgun charge was

severed and tried separately from the other charges.

In the trial of the sex-related offenses, the Commonwealth's case against .

Sheets primarily consisted of Michelle's testimony. At trial, she testified that

Sheets had made her put his "pickle" (her term for penis) in her mouth, that he

would direct her to give him "fifty" (meaning fifty "sucks"), and that this had

often happened when she asked him for something, such as money. She also

testified that he had licked her "ketchup" (her term for vagina) and had

touched it with a silver vibrator, which police found in the bedroom drawer.

She stated that sometimes he would make her watch videos depicting him and

her mother engaging in sexual activities, although she later testified that she

had seen only one video, which she accurately described as showing her

mother using a large, tan dildo (another object police found in the drawer).

Other than Michelle's testimony, the Commonwealth also introduced

testimony from Rhonda that Michelle had always had problems wetting the

bed, but that her bedwetting had stopped when Sheets moved out of the house

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only to resume a couple weeks before trial. The Commonwealth also

introduced the testimony of Dr. Bennett, as recounted above.

The defense theory was that the allegations were untrue and that

Michelle, who had often had opportunities for unsupervised access to her

mother and Sheets's bedroom, had fabricated them based on knowledge of the

sex toys and videos that she had obtained on her own. Her brother testified

that she had a reputation for not telling the truth, and her mother testified that

she commonly told small lies, typically to deflect blame from herself in the face

of some minor alleged wrongdoing (by, for example, claiming she had not eaten

candy that had gone missing, when the empty wrapper was later found in her

bedroom). The defense also attempted to show that any opportunities Sheets

may have had to be alone with Michelle during the four-year period covered by

the indictment (2009 to 2012) would have been seldom and brief.

In the end, the jury found Sheets guilty of the remaining count of first

degree sexual abuse and two counts of first-degree sodomy. They

recommended sentences of forty years' imprisonment for each sodomy

conviction and ten years' imprisonment for the sexual-abuse conviction, all to

run consecutively for a total of ninety years' imprisonment. The trial court

imposed a total maximum aggregate sentence under KRS 532.110(1)(c) of

seventy years' imprisonment. In a separate trial, Sheets was also convicted of

possession of a handgun by a convicted felon, for which he was sentenced to

six years' imprisonment to run consecutively to the other sentences, subject to

the maximum aggregate sentence under the statute.

6

Sheets now appeals as a matter of right. See Ky. Const. § 110(2)(b).

Additional facts will be developed as needed in the discussion below.

II. ANALYSIS

A. Sheets was not entitled to directed verdicts of acquittal.

Sheets argues that the trial court erred in failing to grant directed

verdicts on the sexual-abuse and sodomy charges. The focus of Sheets's

argument is that Michelle's testimony. was "uncorroborated and inherently

improbable" and thus insufficient to support his convictions.

When deciding a motion for directed verdict, a trial court "must draw all

fair and reasonable inferences from the evidence in favor of the

Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

The court must "assume that the evidence for the Commonwealth is true, but

reserv[e] to the jury questions as to the credibility and weight to be given such

testimony." Id. The court should not grant a directed verdict lig the evidence

is sufficient to induce a reasonable juror to believe beyond a reasonable doubt

that the defendant is guilty." Id. Only if a reviewing court determines "under

the evidence as a whole, it would be clearly unreasonable for a jury to find

guilt," will a defendant be entitled to a directed verdict of acquittal on appeal.

Id. After viewing the evidence as a whole, this Court concludes that Sheets is

not entitled to directed verdicts on the sodomy and sexual-abuse charges.

As noted above, the Commonwealth's case was based almost solely on

Michelle's testimony alleging that Sheets had touched her vagina with a silver

vibrator found in Sheets's bedroom, had licked her vagina, and had made her

7

put his penis in her mouth. Michelle further testified that he had shown her at

least one video of her mother engaging in sexual activities with another sex toy

found in the Sheetses' bedroom, and a video matching that description was

also found in the couple's bedroom. Rhonda also testified that Michelle's

bedwetting had stopped when Sheets moved out of the residence but had

resumed leading up to the trial, allowing for the reasonable inference that her

bedwetting was at least in part caused by distress stemming from Sheets's

alleged abuse. Taking all of this evidence as true and drawing all reasonable

inferences in favor of the Commonwealth, it is clear that the evidence was

sufficient to allow a reasonable juror to find Sheets guilty beyond a reasonable

doubt.

Sheets contends, however, that because Michelle's testimony was

"strange" and "inherently improbable," and in light of her positive STD test

results (while Sheets's and Rhonda's tests were negative), her testimony failed

to reach a level of credibility necessary to satisfy the Commonwealth's beyond

a-reasonable-doubt burden standing alone. Thus, Sheets argues corroborating

evidence was required to sustain his convictions.

For support, Sheets cites this Court's holding in Garrett v.

Commonwealth that "[c]orroboration in a child sexual abuse case is required

only if the unsupported testimony of the victim is 'contradictory, or incredible,

or inherently improbable."' 48 S.W.3d 6, 10 (Ky. 2001) (quoting Robinson v.

Commonwealth, 459 S.W.2d 147, 150 (Ky. 1970)). But, this is not such a case.

Other than a few fairly minor discrepancies, which "are matters of credibility

8

going to the weight to be given by the jury to the child's testimony," id., there is

nothing about Michelle's testimony that was truly contradictory, incredible, or

improbable. And, further still, Sheets's argument and reliance on Garrett

presupposes that there was no corroborating evidence whatsoever, which is

incorrect. To be sure, the fact that Michelle's bedwetting ceased when Sheets

left the residence, but resumed in the lead up to trial corroborated Michelle's

testimony despite the absence of any physical evidence of abuse or witnesses to

the abuse. The same can be said for the fact that one of the pornographic

home-video recordings found in the Sheetses' bedroom matched Michelle's

testimonial description.

Sheets's claim is best supported by the gonorrhea-testing evidence,

which suggests that while Michelle may have been abused, it may have been at

someone else's hands. But the gonorrhea-testing evidence was not conclusive,

as Dr. Bennett testified, and it does not render Michelle's account of what

happened impossible. While the evidence may possibly be probative of Sheets's

innocence, it was not conclusive proof, and certainly would not bar a

reasonable jury from finding guilt. Dr. Bennett testified that gonorrhea is often

asymptomatic in men and that the disease is easily treated with a single dose

of antibiotics. Therefore, a reasonable juror could have believed from the

evidence that Michelle's first positive gonorrhea test was correct, but, by the

time of Sheets's test weeks—or possibly even months—after his last alleged

contact with Michelle, he could have had intervening treatment (even a single

shot of antibiotics for an unrelated condition) and been cured.

9

Because it was not clearly unreasonable for the jury to find Sheets guilty

on the sexual-abuse and sodomy convictions, he was not entitled to directed

verdicts of acquittal.

B. Double Jeopardy

Sheets next argues that his right to be free from double jeopardy under

§ 13 of the Kentucky Constitution and the Fifth and Fourteenth Amendment to

the United States Constitution was violated when the jury was instructed on

both sexual abuse and sodomy without proper differentiation. The

Commonwealth concedes that first-degree sexual abuse is a lesser-included

offense of sodomy. Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky.

1993).

In Johnson, we pointed out that "[t]he instruction, couched in general

terms of 'sexual contact' without differentiating the act from those acts

constituting rape and sodomy, permitted the jury to find Johnson guilty twice

for the same act, e.g., intercourse constituting rape and intercourse

constituting sexual contact and, therefore, sexual abuse." Id. Sheets argues

that the same is true in his case. The Commonwealth disagrees with Sheets's

assertion that the trial court failed to adequately differentiate between the

offenses in its instructions to the jury.

Sheets was charged with first-degree sexual abuse and two counts of

sodomy—one for allegedly performing oral sex on Michelle and the other for

having Michelle perform oral sex on him. The jury instruction for first-degree

sexual abuse read:

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You will find the Defendant guilty of First-Degree Sexual abuse under this Instruction and Count V of the Indictment, if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about 2009 to 2012 and before the finding of the Indictment herein, the Defendant subjected [Michelle] to sexual contact; AND

B. That at the time of such contact, [Michelle] was less than 12 years of age.

Sheets argues that this instruction allowed the jury to find him guilty of sexual

abuse for the same conduct for which it found him guilty of sodomy. In fact,

he argues that under the instructions, if the jury found him guilty of either

count of sodomy, it necessarily had to find him guilty of sexual abuse.

The Commonwealth agrees that the language of the written instruction itself

does not properly differentiate the crimes. However, the Commonwealth insists

•the trial court corrected this error in its oral instruction to the jury.

Specifically, after reading the first seven instructions to the jury, the trial

court stated:

[s]ee you've got three separate substantive crimes presented to you. The first count of sodomy deals with the allegation that the defendant had oral contact with [Michelle's] vagina. The second count of first degree sodomy deals with the allegation that [Michelle] had oral contact with the defendant's penis. And the third count of [sexual abuse in the first degree] deals with the allegations surrounding the silver vibrator having contact with [Michelle's] vagina. So three separate and distinct substantive crimes and those are followed with three separate and distinct verdict forms.

Our Criminal Rules address jury instructions in RCr 9.54, which

provides:

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(1) It shall be the duty of the court to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel. These requirements may not be waived except by agreement of both the defense and the prosecution.

(2) No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection. . . .

In support of his position, Sheets points out that this Court has held that

counsel's remarks during closing argument were not sufficient to cure defective

jury instructions. Harp v. Commonwealth, 266 S.W.3d 813, 820-21 (Ky. 2008).

However, that is not what happened in the case at bar. Here, the trial court

itself, when reading the instructions to the jury as required under RCr 9.54,

differentiated the crimes.

Because Appellant did not object to the jury instructions, this matter is

not preserved and we will review it only for palpable error under RCr 10.26.

"Palpable error affects the substantial rights of the party and results in

manifest injustice. Furthermore, an appellant claiming palpable error must

show that the error was more likely than ordinary error to have affected the

jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014). "In

determining whether an error is palpable, 'an appellate court must consider

whether on the whole case there is a substantial possibility that the result

would have been any different."' Commonwealth v. Pace, 82 S.W.3d 894, 895

(Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky. 1983)).

12

Therefore, we are tasked with determining not whether the trial court

erred in its instructions to the jury, but whether there is a substantial

possibility that the outcome of the case would have been different without that

error. While it would have been preferable for the written instructions to have

differentiated between the crimes, we hold that any error in this regard does

not amount to palpable error since the trial court made the differentiation

orally while instructing the jury. There is no substantial possibility the result

would have been different in the absence of the error.

C. Unanimous Verdict

Sheets next asserts that the trial court violated his right to a unanimous

verdict, guaranteed by §7 of the Kentucky Constitution, by giving a single

instruction for multiple alleged acts of abuse in each of his two sodomy

convictions. The two counts of sodomy involved different acts—the first related

to Michelle's mouth contacting Sheets's penis, and the second concerned

Sheets's mouth contacting Michelle's vagina. The Commonwealth concedes

that the jury instructions regarding the sodomy charge involving Michelle's

mouth contacting Sheets's penis constitute reversible error; however, the

Commonwealth disputes that the trial court erred in its instructions regarding

the remaining sodomy charge.

This Court stated in Johnson v. Commonwealth, 405 S.W.3d 439, 449

(Ky. 2013), that a defendant's right to a unanimous verdict is violated by "a

general jury verdict based on an instruction including two or more separate

instances of a criminal offense, whether explicitly stated in the instruction or

13

based on the proof." Here, the instructions for Sheets's two counts of sodomy

did not provide any specifics about the events surrounding the charged

conduct. Rather, they merely provided a four-year time span during which the

events could have taken place.

Michelle testified about multiple times that Sheets made her perform oral

sex on him. These separate acts occurred in various locations in the home over

a period of years. The jury instructions did not direct the jury to one such

instance, nor did the jury otherwise specify on the verdict form that it

unanimously based its ruling on a particular instance of abuse. This

specifically runs afoul of our precedent. in Johnson. Therefore, we reverse

Sheets's conviction for sodomy based upon Michelle's oral contact with his

penis.5

Sheets argues that the same problem exists as to the second sodomy

conviction in which he was charged with engaging in deviate sexual intercourse

with Michelle by having oral contact with her vagina. We disagree. While the

jury instructions on this count also failed to state a specific date or otherwise

identify a particular instance of abuse, Michelle only testified as to one

instance of Sheets orally contacting her vagina. Therefore, the proof simply

5 We note that, as of April 9, 2016, when the Governor signed Senate Bill No. 60 into law on an emergency basis, a new cause of action exists under which "a person may be charged with committing an offense against a vulnerable victim in a continuing course of conduct." When a defendant is charged under this newly-created offense, the jury need only "unanimously agree that two (2) or more acts in violation of the same statute occurred during the specified period of time. The jury need not agree on which specific acts occurred." This new law is not at issue in this case, but we mention it as the Commonwealth may choose to charge future defendants accused of such crimes under this law and avoid the unanimity issues present in the case at bar.

14

does not support a unanimity problem with this instruction. Though all the

parties, as evinced by Sheets's trial counsel's closing arguments, treated this

testimony as denoting one single act of abuse, Sheets now complains that the

testimony was ambiguous and could have referred to more than one instance

of abuse.

As to this count, the Commonwealth presented the following evidence

through Michelle's direct examination:

Commonwealth: [Michelle], did [Sheets] ever do bad things to you?

Michelle: Yes.

Commonwealth: Can you tell me what they were?

Michelle: He licked my ketchup, and that's it.

Commonwealth: He licked your ketchup? Ok. Tell me about that. Where were you when that happened?

Michelle: In his room.

Commonwealth: Okay. When you say he licked your ketchup, do you mean he licked your vagina?

Michelle: Yes.

Unlike the other instances of sodomy involving Sheets forcing Michelle to

perform oral sex on him, the Commonwealth only presented this limited

evidence to support this count of sodomy. Just as the trial court and parties

treated this incident during trial, we also believe Michelle's testimony relates to

a single occurrence. Because Sheets was not convicted "based on an

instruction including two or more separate instances of a criminal offense,

whether explicitly stated in the instruction or based on the proof," Johnson,

15

405 S.W.3d at 449, there is no violation of his right to a unanimous verdict as

to this count of sodomy. Therefore, we affirm the trial court as to Sheets's

sodomy conviction involving him making oral contact with Michelle's vagina,

but reverse Sheets's conviction for sodomizing Michelle on the count involving

Michelle's mouth contacting Sheets's penis and remand that matter to the trial

court for further proceedings consistent with this opinion.

D. Testimony about Sheets and Rhonda's Sexual Activities

During its direct examination of Rhonda, the Commonwealth elicited

testimony about Rhonda's and Sheets's sexual activities. Sheets argues that

this testimony was irrelevant and, furthermore, that it constituted character

evidence which should have been barred as evidence of bad conduct

introduced for no purpose other than to show his and his wife's sexual

proclivities—that is, that they had a propensity for behaving sexually in ways

that some might find unusual. Sheets admits that he did not object to the

introduction of any of the complained-of testimony at trial, but asks us to

review his allegations for palpable error. As explained below, this Court

disagrees and holds that any error in this regard did not rise to the level of

palpable error.

Sheets specifically complains about the Commonwealth's following line of

questions:

Commonwealth: How often would you use [the dildos, lubricants, and pornographic films]?

Rhonda:

Occasionally. I don't have a—I mean, I would get in the drawer if I wanted to use one, randomly.

16

Commonwealth:

Rhonda:

Commonwealth:

Rhonda:

How often would you clean these items?

After I used them, I'd wash them off.

You'd wash them off with soap. Urn, there is one item I want you to take a look at, and it is in the top of what I have marked as Commonwealth's Exhibit 10. What did I just hand you a photo of?

A doctor's instrument from when you have a pap smear.

Commonwealth: Now, I'm sorry, how did you obtain this?

Rhonda:

They are disposable at the doctor's office.

Commonwealth: Disposable. Was this used on you?

Rhonda:

Yes.

Commonwealth: So, you took this, I'm sorry, you took a disposable speculum?

Rhonda: Yes.

Commonwealth: And what would you do with this speculum?

Rhonda: To role play.

Commonwealth: To role play?

Rhonda: With my husband.

Commonwealth: And what do you mean by role play?

Rhonda: We'd play doctor.

Commonwealth: You'd play doctor?

Rhonda: Yes.

17

Commonwealth: And would [Sheets] ever give your son pornography?

Rhonda: Not to my knowledge.

Commonwealth: Do you know if they ever talked about sex and girls?

Rhonda: Yes.

Commonwealth: Are you aware he gave your thirteen-year-old son condoms?

Rhonda: No.

Sheets contends that the questions concerning Rhonda's use and

cleaning of sex toys were irrelevant. We disagree. Relevant evidence is

"evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence." KRE 401. Our Rules further provide

that "[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of undue prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence." KRE 403.

As to the relevancy of the use and cleaning of the sex toys, we point out

that Dr. Bennett testified that if the sex toys were used by others, they could

have infectious material on them, thus increasing the risk of Michelle acquiring

a sexually transmitted disease. In the case at bar, there is an issue as to

whether Michelle contracted gonorrhea, as the results of one test indicated she

18

had the disease, while a later test indicated she did not. Therefore, these

questions posed to Rhonda were relevant and their probative value was not

substantially outweighed by the danger of undue prejudice.

Sheets also argues that Rhonda's testimony concerning the speculum

was irrelevant. We disagree with that contention as well, even though the

Commonwealth concedes the issue. Michelle had knowledge of certain sex toys

found in Rhonda and Sheets's bedroom, but not of others. One of Sheets's

defenses was that Michelle had seen the sex toys on her own. Thus, the

contents of the drawer and when the items were acquired were certainly

relevant and any undue prejudice does not substantially outweigh the

evidence's probative value.

We do agree with Sheets, however, that the testimony about how the

couple used the speculum, and what Rhonda meant by "role playing," were

irrelevant and should not have been admitted at trial. However, as noted,

Sheets did not object to this evidence at trial. Any error in this regard was not

palpable, as further explained below.

Sheets further posits that the Commonwealth's questions concerning

Rhonda's son were irrelevant. However, in the course of this line of

questioning, Rhonda denied any knowledge of Sheets giving her son

pornography or condoms. Therefore, Sheets had no reason to object to these

questions when Rhonda's responses were actually helpful to his defense, as

they rebutted the Commonwealth's assertions. This could have merely been

Sheets' trial strategy—and we should certainly not classify it as palpable error.

19

In addition to his relevancy arguments, Sheets also asserts that the

evidence in question should have been excluded under KRE 404 which

provides that, with enumerated exceptions, "[e]vidence of a person's character

or a trait of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion." As detailed above, most of the

complained-of evidence was not presented in order to show Sheets's character,

but, was admissible for other reasons. To the extent the evidence was not

admitted for another purpose, we will review only for palpable error.

As Sheets admits, he did not object to any of this evidence at trial. He

requests that this Court review this unpreserved claim for palpable error. As

such, reversal will be required only if we determine that the unpreserved error

affected Sheets's substantial rights and resulted in manifest injustice.

RCr 10.26. We hold that there is no "substantial possibility that the result

would have been any different" in the absence of any of the alleged errors.

Pace, 82 S.W.3d at 895. Therefore, any error in this regard was not palpable.

We also point out that the questions and answers were not

confrontational; rather, it appeared as if the questions were asked for purposes

of clarification rather than sensationalism. With the other evidence adduced at

trial, these brief comments were neither shocking nor jurisprudentially

intolerable. Since jurors may form a negative impression from an attorney

making too many objections, or jurors may feel that the attorney is trying to

hide something from them, many attorneys prefer not to object unless

questions would cause significant harm. The few questions that were

20

irrelevant caused little if any harm to Appellant's defense. The failure to object

could just be attributed to trial strategy. It would be improper for us to

highjack what may have been defense counsel's trial strategy and classify it as

palpable error.

E. Immoral or Illegal Defense Investigation

Sheets next alleges that the Commonwealth's questioning of Rhonda and

some of the Commonwealth's comments during its closing argument suggested

that defense counsel acted immorally or illegally in investigating the

allegations. In the complained-of line of questions, the Commonwealth asked

Rhonda about taking her children to Sheets's defense counsel's office. After a

defense objection, the trial court allowed the Commonwealth some leeway,

stating that Sheets's defense counsel had opened the door to questions

concerning the removal of the children during cross examination.

As we recognized in Commonwealth v. Stone, 291 S.W.3d 696, 701-02

(Ky. 2009), "[g]enerally stated, 'opening the door' to otherwise inadmissible

evidence is a form of waiver that happens when one party's use of inadmissible

evidence justifies the opposing party's rebuttal of that evidence with equally

inadmissible proof." As this Court has further explained, "when one party

introduces improper evidence, such 'opens the door' for the other party to

introduce improper evidence in rebuttal whose only claim to admission is that

it explains or rebuts the prior inadmissible evidence." Metcalf v.

Commonwealth, 158 S.W.3d 740, 746 (Ky. 2005) (citing Norris v.

Commonwealth, 89 S.W.3d 411, 414 (Ky.2002)).

21

Specifically, Appellant complains of the following exchange during re

direct examination:

Commonwealth: Did you ever take your two children to meet with the defense about your daughter's allegations against the defendant?

Rhonda: Yes.

Commonwealth: And at that point, your children were taken?.

Rhonda: Yes.

Commonwealth: After writing letters, phone calls, participating with the defense?

Defense: Objection, your honor.

Commonwealth: So you took young [Michelle] to speak with [defense counsel], is that correct?

Rhonda: She didn't speak with him.

Commonwealth: A member of his team?

Rhonda: Yes.

Commonwealth: And [Adam] also?

Rhonda: Yes.

Commonwealth: In preparation for trial, is that correct?

Rhonda: This was a while ago, yes.

Commonwealth: And, at that point, your children were taken away?

Rhonda: Yes.

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Commonwealth: Did you worry your children would be taken away the first time when you found out about these allegations?

Rhonda: No.

Commonwealth: That you did nothing about from August 2012 to December 2012, you didn't think there was a chance that maybe your children would be taken away from you then?

Rhonda: No.

Commonwealth: No? That it would take continued exposure with the defendant before they would finally step in?

Rhonda: I didn't think I'd ever get my kids taken away.

Commonwealth: Did you ever worry, in discussions with the defendant that you would be prosecuted as well?

Rhonda: No.

Commonwealth: Did you ever have discussions about cooperating with [defense counsel] in conversations with the defendant?

Rhonda: About being prosecuted?

Commonwealth: Do you feel like that you've been cooperative with the Commonwealth?

Rhonda: Yes.

Commonwealth: You do?

Rhonda: Yes.

Commonwealth: So, the 200 phone calls, taking your children to the defense, you believe that's cooperation?

Rhonda: No, that was wrong on my part.

23

Though Appellant does not specifically complain that the trial court erred

in its ruling that defense counsel opened the door to this line of questioning,

we will address it as such before delving into his actual argument. We review a

trial court's evidentiary rulings for an abuse of discretion. Goodyear Tire &

Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles." Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999). After reviewing the video record, we do not

believe the trial court abused its discretion in holding that Sheets's defense

counsel opened the door to questions regarding the children being removed

from Rhonda. Appellant's counsel asked Rhonda about the custody of her

children and the Commonwealth sought to explain the circumstances under

which the children were removed. Metcalf, 158 S.W.3d at 746. The trial

court's ruling was not arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. Therefore, to the extent that the Commonwealth's re

direct concerned the removal of the children, the trial court did not abuse its

discretion in allowing the testimony.

Appellant's argument is that the Commonwealth's questions to Rhonda

concerning the custody of her children and some of the Commonwealth's

statements during its closing argument suggested that defense counsel acted

immorally or illegally in investigating the allegations. During its closing

argument, the Commonwealth stated that "no one is on [Michelle's] side" and

that her own mother did not believe her. Sheets argues the Commonwealth's

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closing argument was "more unduly prejudicial than probative. . . . Injecting

the idea that the [d]efense was somehow unethical or acted illegally . . . ." We

disagree. The Commonwealth's questions to Rhonda and statements during

closing argument attempted to show Rhonda's bias toward Sheets—not to

implicate Sheets's counsel in any unethical or illegal conduct. Aside from the

fact that Appellant's defense counsel opened the door to this line of

questioning, it also amounted to an attack on the Commonwealth's own

witness's credibility after Rhonda contradicted Michelle's testimony during

cross-examination. This was proper impeachment. See KRE 607.

As to the Commonwealth's statements during closing argument, Sheets

acknowledges that the Commonwealth enjoyed considerable latitude in

presenting its arguments to the jury. However, he claims "[i]n this case, there

was no accusation or evidence that the [d]efense attempted to influence the

testimony that would be offered." We do not believe that the Commonwealth

implied such. Again, we think the Commonwealth's brief reference to Rhonda

taking her children to Sheets's attorney's office was aimed at its assertion that

Rhonda was biased against her daughter. The Commonwealth neither

explicitly stated nor impliedly asserted that the defense had done anything

illegal or immoral in this regard.

We also reject Appellant's contention that the admission of this evidence

amounted to prosecutorial misconduct, and point out that in order to establish

such a claim, Sheets "must show (1) the statement was actually false; (2) the

statement was material; and (3) the prosecution knew it was false."

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Commonwealth v. Spaulding, 991 S.W.2d 651, 654 (Ky. 1999) (internal

citations and quotations omitted). Sheets fails to make such a showing.

Furthermore, "[d]espite a defendant's characterization, [i]ssues involving the

admission of evidence or testimony, when ruled upon by the trial court, do not

constitute prosecutorial misconduct." Noakes v. Commonwealth, 354 S.W.3d

116, 122 (Ky. 2011)(internal citations and quotations omitted).

F. Dr. Bennett's Testimony

Sheets's next allegation of error centers around his defense counsel's

cross-examination of Dr. Bennett. During cross-examination, Sheets's counsel

asked Dr. Bennett a question and now asserts that her answer was not only

unresponsive, but "careened into completely irrelevant, prejudicial[,] and

disasterous testimony." The Commonwealth points out that, while the

testimony may well have been prejudicial, it was in response to a question

asked not by the Commonwealth, but rather, by defense counsel. Sheets

admits this alleged error is unpreserved, but asks this Court to review for

palpable error.

We have long held, "[o]ne who asks questions which call for an answer

has waived any objection to the answer if it is responsive." Estep v.

Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983). Appellant claims the last

answer in the following exchange was not responsive:

Defense: So, other than the blood test, there's really no purpose at all to do an exam of someone?

Dr. Bennett:

Not necessarily. If there is a medical issue that needs treatment. A lot of children of sex abuse don't believe their bodies are normal, so a part of

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the exam is reassuring the child that you're okay, you're normal. No one is ever going to look at you and know that anything has happened. And we, of course, look for evidence of abuse.

Dr. Bennett:

So, evidence of abuse is further confirmation that there was abuse, correct?

It can be, but we most often don't have it, so that's certainly not necessary.

So, if there is no evidence of abuse that's further confirmation abuse has occurred?

I don't quite understand your question.

Well, I don't quite understand the answer that you've given. Because what you said is that if there is no sign of anything at all of anything here, yet that confirms the allegations that there has been abuse?

No, that's not the correct wording. I wouldn't say that confirms the allegations, but it certainly doesn't make me less concerned there was abuse. A normal physical exam does not in any way make me think that abuse has not occurred.

Defense:

Dr. Bennett:

Defense:

Dr. Bennett:

Defense:

Defense: So, regardless of what the exam shows you are going to think abuse has occurred either way?

Dr. Bennett: It depends on the history. There are certain histories that make you really, really concerned that something has happened. The history that [Michelle] provided, the details she was able to provide was a very, very concerning history for abuse. We get different histories all the time, and I can say honestly there are some I say like "I don't know." But, that is not really my role. I do the exam, and I provide assurance and I test them if I need to. But, there are instance[s] where I feel like the histories are so concerning and it makes me not have any doubt abuse has occurred, regardless of the physical exam.

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Sheets's allegation of error concerns the last question and answer. He

alleges he asked Dr. Bennett a "yes or no" question, but that the answer was

non-responsive. We disagree. Sheets allowed Dr. Bennett to provide this

answer without ever objecting or cutting her off. Her answer did concern the

question asked—whether she would believe abuse had occurred in spite of the

results of her physical examination. It was, in fact, a restatement of a question

Dr. Bennett had already attempted to answer. There is simply no error here.

G. Michelle's Psychotherapy Records

Before trial, Sheets moved the court to compel discovery of records of

Michelle's psychological or psychiatric treatment with the Children's Advocacy

Center (CAC). Michelle's guardian ad litem objected to the request, arguing

that Sheets was not entitled to outright discovery of the privileged records or to

an in camera review of the records by the trial court as he had failed to make

the threshold showing of a reasonable belief that the records contain

exculpatory evidence as required under Commonwealth v. Barroso, 122 S.W.3d

554 (Ky. 2003). Sheets filed a reply to the guardian ad litem's objections,

characterizing his position as a "catch-22" and contending that "proof is in the

pudding" that the records might contain either exculpatory evidence or

evidence relevant to the issue of the alleged victim's competency. He also

specified that the reason for the request was to see whether Michelle may have

recanted or varied her allegations during therapy.

After holding a hearing, the trial court found that Sheets had made an

insufficient preliminary showing of a reasonable belief that the records contain

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exculpatory or impeachment evidence, concluding that the request was merely

an attempt to go fishing into confidential records in the hopes of discovering

some sort of unspecified information which could prove beneficial to his

defense. The judge concluded that the mere fact that Michelle was undergoing

psychological therapy was not an adequate basis, standing alone, to defeat the

evidentiary privilege for such records and overruled Sheets's motion to compel

their production accordingly. Sheets claims this was error.

The psychotherapy records at issue are covered by the psychotherapist

patient privilege provided in KRE 507. The general rule is that "[al patient, or

the patient's authorized representative, has a privilege to refuse to disclose and

to prevent any other person from disclosing confidential communications,

made for the purpose of diagnosis or treatment of the patient's mental

condition." KRE 507(b). Subsection (c) lays out several narrow exceptions to

the general rule of privilege not relevant here, and other than those exceptions,

the psychotherapist-patient privilege is an "absolute" privilege and thus not

subject to avoidance based on a need for the evidence. Barroso, 122 S.W.3d at

558; cf. KRE 506(d)(2) (providing interest-weighing, need-based exception to the

"qualified" counselor-client privilege under KRE 506). 6

6 The exact type of therapeutic services Michelle received from the CAC is not clear, nor are the identity and qualifications of the person or persons that provided her such services.

We note this because KRE 507's absolute privilege applies only to confidential communications made for the purpose of diagnosis or treatment by a "psychotherapist," which is defined as either a state-licensed or certified psychiatrist, KRE 507(a)(2)(A), or psychologist, KRE 507(a)(2)(B); a clinical social worker licensed by the Kentucky Board of Social Work, KRE 507(a)(2)(C); or a licensed registered nurse or

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But this Court has also recognized that the privilege must give way to a

criminal defendant's right to obtain exculpatory evidence under Brady v.

Maryland, 373 U.S. 83 (1963), and right to confront the witnesses against him

under the Fourth Amendment and Section Eleven of the Kentucky

Constitution. This effectively makes for a qualified privilege in the criminal

litigation context. Hodge v. Commonwealth, 17 S.W.3d 824, 844 (Ky. 2000);

see also Barroso, 122 S.W.3d at 561 ("[W]e conclude that the Compulsory

Process Clause affords a criminal defendant the right to obtain and present

exculpatory evidence, including impeachment evidence, in the possession of a

third party that would otherwise be subject to the psychotherapist-patient

privilege.").

Thus, in Barroso, this Court created a process by which a defendant may

obtain an in camera review of the records sought, conducted by the trial court

alone, which protects both the defendant's constitutional right to a fair trial

advanced registered nurse who practices psychiatric or mental-health nursing, KRE 507(a)(2)(D). On the other hand, KRE 506's qualified counselor-client privilege governs confidential communications made for counseling purposes between a client and "counselor," which includes, among others, sexual-assault counselors engaged in rape crisis centers as defined in KRS Chapter 421, KRE 506(a)(1)(B); licensed professional clinical counselors and their associates as defined in KRS 335.500, KRE 506(a)(1)(E); and victim advocates as defined in KRS 421.570, KRE 506(a)(1)(G). If the requested records actually pertained to counseling services captured under KRE 506, rather than psychotherapist services, then the judge should have decided whether to compel production of the CAC records here under KRE 506(d)(2), which removes the privilege in any situation in which a trial court concludes that a need for the evidence outweighs the interests protected by the privilege.

While the record does not make clear exactly which type of services were being rendered by the CAC, and thus which privilege should apply, Sheets has never raised this issue. We therefore assume in our analysis that the trial court was correct in subjecting the requested records to analysis under KRE 507 rather than KRE 506.

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and the witness's interest in the confidentiality of the privileged information

from unnecessary over-disclosure. 122 S.W.3d at 564. That "in camera review

of a witness's psychotherapy records is authorized only upon receipt of

evidence sufficient to establish a reasonable belief that the records contain

exculpatory evidence." Id. at 564. This preliminary showing is required to

prevent defendants from engaging in purely speculative fishing expeditions and

"unrestrained forays into confidential records in the hope that the unearthing

of some unspecified information would enable the defendant to impeach the

witness." Id. at 563 (internal quotation marks and alterations omitted).

With this in mind, we conclude that the trial judge acted within his

discretion in finding that Sheets failed to proffer sufficient proof of a reasonable

belief that the requested records would contain exculpatory or impeachment

evidence. Sheets's motions simply asserted that he knew Michelle was

receiving therapy from the CAC and that the records of such may contain

information that may be exculpatory or useful in impeaching the minor

witness, such as evidence showing that the alleged victim may have recanted or

changed her story when discussing the allegations with CAC personnel. But he

otherwise presented no actual basis to reasonably believe that the records

would in fact contain such evidence outside generally speculating that they

might. Under Barroso, this threshold showing was insufficient to overcome the

privilege, as it would have been in most if not all other jurisdictions. Cf.

Clifford S. Fishman, Defense Access to Prosecution Witness's Psychotherapy or

Counseling Records, 86 Or. L. Rev. 1, 37 (2007) ("In sexual-assault and child

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abuse cases, there is general agreement that a defendant must do more than

speculate that, because the complainant has participated in counseling or

therapy after the alleged assault, the records in question might contain

statements about the incident or incidents that are inconsistent with the

complainant's testimony at trial.").

With Sheets thus having failed to make the requisite preliminary

showing, the trial court did not err in denying his motion for in camera

inspection of MiChelle's psychotherapy records.

H. Handgun Charge

As noted above, the trial court severed the handgun charge from the sex

related charges and held a separate trial with a separate jury. That jury found

Sheets guilty and recommended a six-year prison sentence. The trial court

thus entered a final judgment in that case, Kenton Circuit case number 13-CR

00187, sentencing Sheets in accordance with the jury's recommendation and

ordering the sentence to be run consecutively to the sentence he received in the

sex-crimes case, Kenton Circuit case number 13-CR-00186, subject to the

statutory maximum aggregate sentence of seventy years under

KRS 532.110(1)(c). Each case resulted in its own judgment. And Sheets filed

separate notices of appeal for each case. Apparently due to clerical error,

however, the two cases were improperly consolidated into this single direct

appeal to this Court.

This was improper because Sheets's conviction and six-year prison

sentence for possession of a handgun by a convicted felon was a completely

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separate judgment from that in the sex-crimes case. And while the appeal of

the judgment in the sex-crimes case sentencing Sheets to ninety years subject

to the statutory maximum aggregate sentence of seventy years is properly

before this Court on Sheets's matter of right direct appeal, the handgun case is

not because he received only six years' imprisonment under that judgment.

See Ky. Const. § 110(2)(b). This Court simply does not have jurisdiction to

hear Sheets's direct appeal of the judgment entered in the handgun case.

Instead, jurisdiction over that appeal necessarily lies with the Court of Appeals.

See CR 73.01(2) (providing that all appeals not otherwise subject to matter-of

right review by the Supreme Court "shall be taken to the next higher court").

Of course, this Court could have granted, in its discretion, transfer of the

handgun case from the Court of Appeals, CR 74.02(2), upon any party's

motion, CR 74.02(1), or the recommendation of the Court of Appeals,

CR 74.02(5). But that is not what happened here. There was no such motion

or recommendation made in this case through which a transfer of direct-appeal

jurisdiction to this Court could have been effected.

Therefore, we must dismiss Sheets's appeal of the handgun conviction

and sentence and remand it to the Court of Appeals to properly exercise its

direct-appeal jurisdiction over that judgment. Cf. Leonard v. Commonwealth,

279 S.W.3d 151, 156 (2009) (retaining jurisdiction over case because

jurisdiction was proper when appeal was filed, although intervening

gubernatorial action of commuting the sentence removed it from the Court's

jurisdiction).

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