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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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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, RAP 40(D), THIS
OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
THE ACTION.
RENDERED: JUNE 20, 2025
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0472-MR
ELSIE FRANKLIN APPELLANT
ON APPEAL FROM ANDERSON CIRCUIT COURT
V. HONORABLE MELANIE BRUMMER, JUDGE
NO. 19-CR-00067
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Anderson County jury convicted Elsie Franklin (“Franklin”) of two
counts of first-degree rape, one count of first-degree sodomy, two counts of
incest, and two counts of first-degree sexual abuse. Franklin was sentenced to
twenty years of imprisonment. This appeal followed as a matter of right. See
KY. CONST. § 110(2)(b). Having reviewed the record and the parties' arguments,
we affirm the judgment of the Anderson Circuit Court.
I. BACKGROUND
On April 19, 2019, Franklin was indicted by an Anderson County grand
jury on the following charges: three counts of first-degree rape, one count of
first-degree sodomy, two counts of incest, and two counts of first-degree sexual
abuse. The victim, Sam, 1 Franklin’s grandson, was less than twelve years of
age when these crimes occurred.
Franklin’s first jury trial began on October 4, 2021. During the
Commonwealth’s case-in-chief, after Sam testified, the circuit court declared a
mistrial when it learned that Franklin’s son, Warren, had inappropriate contact
with a juror. The court held a hearing, held Franklin’s son in contempt, and
banned him from attending any future trial.
On August 17, 2022, the Commonwealth moved to revoke Franklin’s
bond, alleging Franklin violated her bond conditions by having contact with
Sam. Franklin picked Sam up from his foster-care placement in Ashland,
Kentucky, and drove him to Franklin’s sister’s house in Missouri. Sam was
detained in Missouri after having an accident while driving Franklin’s car. Sam
was traveling at 100 mph when he lost control and rolled the car three times.
Sam’s social worker traveled to Missouri to bring him home, but he eluded her
and was on the run for about a month.
In response to the motion, Franklin denied having contact with Sam.
She claimed she learned from her son and Sam’s father, Travis, that Sam ran
away from his foster home and went to Travis’ home in Ashland. While Sam
was there, Travis had his brother Warren come over. They recorded a video of
1 “Sam” is a pseudonym to protect the privacy of the victim who was a minor
child when the abuse occurred.
2
Warren interviewing Sam, which Franklin alleged was a “recantation” of his
trial testimony.
The circuit court held a revocation hearing, and on December 20, 2022,
the court overruled the motion to revoke Franklin’s bond because there was no
clear and convincing evidence that Franklin had contact with Sam. However,
the court noted that given the circumstances, it seemed that those who
testified on Franklin’s behalf were being dishonest.
Franklin’s second trial began on April 16, 2023. Sam refused to testify,
and the circuit court deemed him unavailable. The circuit court allowed a
video recording of Sam’s testimony from the first trial to be played because he
was unavailable. Sam testified regarding the specific acts of sexual abuse
Franklin subjected him to, which escalated from mutual touching to
masturbation, oral sex, and finally to forced sexual intercourse. He testified
Franklin forced his penis into her vagina in his bedroom and her bedroom.
Sam testified the abuse occurred while his grandfather was at work and his
siblings were at school. Sam testified he was frequently absent from school
during the fourth and fifth grade and was homeschooled in the sixth grade
while his siblings remained in public school. Sam testified that all of the abuse
occurred before Child Protective Services was called to the home.
Sam’s two interviews at the Child Advocacy Center (“CAC”) were entered
into evidence. Sam’s first forensic interview took place on May 24, 2017, at the
CAC of the Bluegrass in Lexington, Kentucky. A second interview took place on
January 23, 2019, at Silverleaf Sexual Trauma Services in Elizabethtown,
3
Kentucky. The first CAC interview was conducted by an interviewer who died
prior to the second trial, so it was admitted as a business record under KRE 2
803(6).
Detective Matthew Rogers testified that Franklin denied the allegations
during his investigation when he interviewed her. He further testified that
Franklin behaved strangely and showed no reaction to being accused of
sexually abusing and raping Sam. Detective Rogers noted that people usually
get upset about such accusations, but Franklin did not.
Detective Rogers also executed a search warrant at Franklin’s house. He
said Franklin and her son, Warren, were present during the search. Warren
recorded a video during the entire search. Detective Rogers did not find any
DNA evidence, but he testified that it is not unusual not to find DNA evidence
because it is easy to clean up semen.
Detective Rogers provided Sam with no materials or preparation for his
CAC interviews. Detective Rogers interviewed other children who lived with
Franklin, and they did not witness the abuse.
Franklin’s defense was denial of the allegations, and she accused law
enforcement of influencing Sam to make false allegations through coercion and
medication. Franklin testified on her own behalf. She testified that she met
Sam the day he was born and frequently babysat him before he came to live
2 Kentucky Rules of Evidence.
4
with her. She talked about taking care of Sam and his siblings. Franklin
denied all allegations against her.
Franklin testified that during a second interview at a Kentucky State
Police post, she again denied the allegations and told the interviewer she was a
cheerleader in high school and could still do the “splits.” Franklin then
performed the splits during the interview.
Warren, Sam’s uncle, testified on Franklin’s behalf. Through Warren,
Franklin introduced a video that Warren recorded while Sam was at his father’s
trailer. In the video, Sam talked to his uncle Warren about the false allegations
against Franklin and that he had been coached on what to say.
In the video, Warren asked Sam questions in an interview style, and Sam
answered. Warren asked Sam who told him Franklin molested him, and Sam
said it was his first foster family. Warren asked Sam if he remembered
anything happening between him and Franklin, and Sam said no. Warren
asked Sam if detectives or social services gave him a script about what he
should say in court, and Sam said they met before court to discuss what Sam
should say and how he should act in court. Warren asked if the scripted
statements were false, and Sam said yes. Warren also asked Sam about the
prescription medications he was on for ADHD and depression.
The Commonwealth cross-examined Warren on the video and the
circumstances under which it was created. Warren testified he lived in
Ashland for twenty-seven years, and when asked whether he was present when
any of the abuse occurred, Warren stated none occurred. Warren responded
5
affirmatively when asked if he never wanted anything bad to happen to his
mother. Warren testified that Sam got to his father’s house in Ashland by bus
when he fled foster care. Warren said Sam stated he wanted to set the record
straight and said what he wanted to talk about in the video, but Warren led the
conversation. The Commonwealth established that Warren was not trained to
interview trauma victims and was not qualified to testify about mental health
and medications.
The defense also presented testimony from a former coworker of Warren.
The coworker testified Sam told him two to three times that the allegations
were false.
At the close of evidence, the Commonwealth dismissed one first-degree
rape charge.
After initial deliberations, the jury was hung. The trial court delivered an
Allen 3 charge. Eventually, the jury returned a guilty verdict. The jury found
Franklin guilty of two counts of first-degree rape, and one count of first-degree
sodomy, two counts of incest, victim under twelve years of age; and two counts
of sexual abuse. The jury recommended the statutory minimum sentence of
twenty years for each rape, sodomy, and incest offense and five years for each
3 Allen v. United States, 164 U.S. 492 (1896).
6
of the sexual abuse offenses to run concurrently. The circuit court sentenced
Franklin to a total of twenty years in prison.
After trial, the Commonwealth moved to hold Franklin in contempt. The
Commonwealth alleged the jailer relayed that Franklin was having third
parties, her son, Warren; her sister, Mary; and her ex-husband, Leonard,
contact Sam on her behalf. The Commonwealth alleged Franklin was trying to
convince Sam to meet with her attorney to get her conviction overturned. The
circuit court found Franklin in contempt and took away her phone privileges
except for legal or medical matters. This appeal followed.
II. ANALYSIS
On appeal, Franklin argues the circuit court erred in: (1) violating her
right to confront and cross-examine Sam when the circuit court allowed prior
testimony, CAC interviews, and the “recantation” video to be played at trial; (2)
allowing inadmissible statements in Sam’s prior trial testimony and in the
recordings of the CAC interviews; (3) denying her a unanimous verdict because
the jury instructions were not sufficiently specific; (4) denying her motion for
directed verdict; (5) allowing the Commonwealth to present evidence Franklin
lost custody of Sam and his siblings; and (6) cumulative error.
A. Constitutional Right to Confront
First, Franklin argues that because the circuit court deemed Sam
unavailable to testify at the second trial, she was denied the ability to confront
Sam. She makes separate arguments under the Fifth, Sixth, and Fourteenth
Amendment to the U.S. Constitution and Section 11 of the Kentucky
7
Constitution. Franklin argues the circuit court violated her right to confront
and cross-examine Sam under the Fifth, Sixth, and Fourteenth Amendments
by allowing the Commonwealth to put into evidence recordings of his prior trial
testimony and forensic interviews and allowing Franklin to enter a
“recantation” video into evidence through her son, Warren, when Sam was
unavailable for the second trial. This argument was preserved in Franklin’s
pretrial response.
Though Franklin objected to the reliability and completeness of Sam’s
prior testimony citing the “Confrontation Clause,” she never specifically
referred to the Kentucky Constitution or the “face-to-face” language of Section
11 at the circuit court. R. at 266. Though Franklin failed to specifically
reference Section 11, this omission is immaterial to our analysis.
The right to confront witnesses is enshrined in the Sixth Amendment to
the United States Constitution. The Confrontation Clause provides that “in all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” Manery v. Commonwealth, 492 S.W.3d 140,
144 (Ky. 2016) (footnote omitted). Additionally, “[t]he Due Process Clause of
the Fourteenth Amendment incorporates this right to state proceedings in
addition to federal prosecutions.” Id. (footnote omitted). Section 11 of the
Kentucky Constitution further protects a defendant’s right to confront
witnesses against him. “Despite noteworthy textual differences, we have not
8
yet held that Section 11 is to be construed more strictly than its Sixth
Amendment counterpart.” Id. (footnote omitted).
Sam testified using a closed-circuit video feed from the judge’s chambers
during the first trial. He underwent direct examination, cross-examination,
and redirect examination. During cross-examination, defense counsel
questioned Sam’s truthfulness. During the redirect, the Commonwealth moved
to enter the CAC interviews as prior consistent statements because defense
counsel questioned Sam’s truthfulness. The circuit court granted the
Commonwealth’s motion and called a recess, so the video could be played in
the courtroom. The circuit court did not dismiss Sam as a witness.
As the jurors returned from recess, Franklin’s son, Warren, conversed
with one juror as he entered the door. Warren said they talked about diabetes,
blood pressure medication, and exercise. In an in-chambers hearing, the
circuit court found he had inappropriate contact with a juror and declared a
mistrial. The court held Warren in contempt and banned him from the
courtroom during the rescheduled trial.
Thus, the jury did not see the CAC interview videos, and Sam was not
subject to redirect examination or cross-examination on his statements in
those interviews.
Between the two trials, Sam fled to Missouri and gave the alleged
recantation in the video recorded by Warren.
On the morning the second trial began, the circuit court held an in-
chambers hearing to determine whether Sam was unavailable to testify at trial
9
because he refused despite being ordered to do so. The circuit court ruled that
Sam was unavailable to testify and permitted the Commonwealth to play Sam’s
prior trial testimony because his cross-examination was “meaningful.” R. at
410. Additionally, due to defense counsel’s prior attack on Sam’s credibility
and questioning regarding the CAC interviews, the circuit court allowed the
Commonwealth to enter Sam’s forensic interviews as prior consistent
statements and allowed Franklin to enter the “recantation” video under KRE
801A(a)(2). Id.
i. Sam’s Prior Trial Testimony
First, we address whether the circuit court erred in admitting Sam’s prior
trial testimony under KRE 804(b)(1). There is no real dispute that the circuit
court did not abuse its discretion in finding Sam unavailable. Sam meets the
definition of “unavailable” because he persisted “in refusing to testify
concerning the subject matter of the declarant's statement despite an order of
the court to do so” as required by KRE 804(a)(2).
Since Sam was unavailable, KRE 804(b)(1) permits prior testimony to be
played at trial under the following circumstances:
Testimony given as a witness at another hearing of the
same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same
or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
In Crawford v. Washington, 541 U.S. 36, 53-54 (2004) “the Supreme
Court held that testimonial statements of a witness who does not appear at
10
trial are inadmissible, regardless of hearsay rules, unless he is (1) unavailable
to testify and (2) his statements were previously subject to cross-examination.”
McAtee v. Commonwealth, 413 S.W.3d 608, 618 (Ky. 2013).
Based on its review, the circuit court found that Sam’s prior testimony
had been taken on the record, under oath, and that both the Commonwealth
and Franklin had an opportunity to examine the witness. The circuit court
determined that the cross-examinations were meaningful. It concluded that
playing Sam’s prior testimony would not violate the Confrontation Clause and
was therefore admissible.
In determining whether evidence constitutes inadmissible hearsay,
whether we review for abuse of discretion or clear error, “both standards
accomplish the same essential goal—giving proper deference to the evidentiary
determination of the trial court.” Mason v. Commonwealth, 559 S.W.3d 337,
342 (Ky. 2018). Here, the circuit court’s written order states that it reviewed
the record and concluded that Sam’s original cross-examination was
“meaningful." Thus, Franklin had an adequate opportunity to cross-examine
Sam under Crawford and KRE 804(b)(1). She was not entitled to recross-
examine Sam under either standard. Thus, the circuit court did not abuse its
discretion in admitting the recording of Sam’s prior trial testimony into
evidence.
ii. Sam’s CAC Interviews
Next, we determine whether Franklin’s right to confront Sam was
violated when the circuit court admitted recordings of two CAC interviews at
11
the second trial as prior consistent statements. KRE 801A(a)(2) allows for
impeachment of an unavailable witness’ prior statements in certain
circumstances:
(a) Prior statements of witnesses. A statement is not
excluded by the hearsay rule, even though the
declarant is available as a witness, if the declarant
testifies at the trial or hearing and is examined
concerning the statement, with a foundation laid as
required by KRE 613, and the statement is:
...
(2) Consistent with the declarant's testimony
and is offered to rebut an express or implied
charge against the declarant of recent
fabrication or improper influence or motive[.]
KRE 613 provides:
(a) Examining witness concerning prior statement.
Before other evidence can be offered of the witness
having made at another time a different statement, he
must be inquired of concerning it, with the
circumstances of time, place, and persons present, as
correctly as the examining party can present them;
and, if it be in writing, it must be shown to the
witness, with opportunity to explain it. The court may
allow such evidence to be introduced when it is
impossible to comply with this rule because of the
absence at the trial or hearing of the witness sought to
12
be contradicted, and when the court finds that the
impeaching party has acted in good faith.
King v. Commonwealth, 554 S.W.3d 343, 359 (Ky. 2018), overruled on other
grounds by Johnson v. Commonwealth, 676 S.W.3d 405, 422 (Ky. 2023).
Additionally,
Trial judge has broad discretion in designating the
order of trial so as to protect the various rights of
competing interests. And we will not disturb an action
of the trial court in conducting a trial, unless clearly
erroneous or arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.
Davis v. Commonwealth, 365 S.W.3d 920, 922 (Ky. 2012) (internal quotations
and footnote omitted).
This Court has examined admissibility of a witness’s prior out of court
statement under KRE 801A(a)(2) and the confrontation clause as separate but
related issues. King, 554 S.W.3d at 363. In King, this Court addressed
whether a child’s CAC interview was admissible under KRE 801(A)(a)(2) to show
the child’s consistency after her credibility was questioned regarding specific
statements in a CAC interview. The King “case [was] somewhat unique in that
these prior consistent statements were introduced via a recording of the 2015
CAC interview after the child had finished testifying; however, . . . the decision
of the trial court to spare the child contemporaneous impeachment was within
its discretion.” Id. at 362. Thus, this Court found “no error in playing portions
13
of the 2015 CAC interview for the jury” because defense counsel cross-
examined the witness before the interview was played. Id.
Next, King addressed whether the circuit court violated his right to
confrontation under the Sixth Amendment of the United States Constitution,
Section 11 of the Kentucky Constitution, and Crawford, “by playing the taped
2015 CAC interview for the jury after A.S. had been excused as a witness and
without calling the interviewer as a witness.” Id. To meet the confrontation
requirement, an out of court statement is only admissible under the following
circumstances:
Out-of-court statements by witnesses that are
testimonial are barred, unless the witness is
unavailable, and the defendant had a prior
opportunity to cross-examine the witness; “[w]here
testimonial statements are at issue, the only indicium
of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually
prescribes: confrontation.” Crawford, 541 U.S. at 68-
69, 124 S.Ct. at 1374. Statements are “testimonial
when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822,
126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).
Id.
In King, this Court held the defendant was not denied his right to
confront the victim because “defense counsel engaged in a lengthy cross-
14
examination of the child, in fact concerning the 2015 CAC interview.” Id. at
363.
The facts in this case are analogous to King. Though Franklin did not
get to cross-examine Sam after the CAC interview videos were played, Franklin
cross-examined Sam about the interviews before the circuit court declared the
mistrial. The Commonwealth sought to rebut Sam’s cross-examination
testimony by playing the CAC interviews to show Sam’s prior consistent
statements regarding the allegations against Franklin. As in King, Franklin
was not denied her right to confront Sam about his statements in the CAC
interviews because defense counsel cross-examined Sam about them before
they were played.
iii. Video of Sam’s Recantation
Finally, Franklin argues that because Sam had yet to recant before the
first trial, she did not have an “opportunity” and “similar motive” to develop
cross-examination under Shields v. Commonwealth, 647 S.W.3d 144, 158 (Ky.
2022). Below, Franklin argued “since the initial testimony was given,
circumstances have drastically changed. Sam has recanted this testimony,
and said it was not true.” R. at 270. However, she did not specifically raise the
Shields argument.
Just as Sam’s prior consistent statement in the CAC interviews was
admissible under KRE 801A(a)(1), so is his inconsistent statement in the
“recantation” video. “There is an exception to a defendant's constitutional right
to be confronted with the witnesses against him where a witness is unavailable
15
and has given testimony at previous judicial proceedings against the same
defendant which was subject to cross-examination by that defendant.” Brooks
v. Commonwealth, 114 S.W.3d 818, 822 (Ky. 2003) (citing Barber v. Page, 390
U.S. 719).
“A statement is inconsistent . . . [when] the witness presently contradicts
or denies the prior statement[.]” Brock v. Commonwealth, 947 S.W.2d 24, 27-28
(Ky. 1997) (citing Wise v. Commonwealth, 600 S.W.2d 470, 472 (Ky. App.
1978)). Though KRE 613 generally requires a proper foundation to be laid, it
also permits a trial court to “allow such evidence to be introduced when it is
impossible to comply with this rule because of the absence at the trial or
hearing of the witness sought to be contradicted, and when the court finds that
the impeaching party has acted in good faith.” Trial courts have “broad
discretion in deciding whether or not to permit the introduction of such
contradictory evidence[.]” Wise, 600 S.W.2d at 472.
Here, Franklin had a meaningful opportunity to cross-examine Sam
during the first trial and questioned Sam’s truthfulness regarding his
allegations against Franklin. The rules of evidence and the Confrontation
Clause allow the trial court to use its discretion in admitting prior inconsistent
statements into evidence when defense counsel previously cross-examined a
witness on the statement at issue. Though Sam was never cross-examined
regarding his statements in the “recantation” video specifically, defense counsel
cross-examined Sam regarding the veracity of his allegations against Franklin
at the first trial. That is all the Confrontation Clause and rules of evidence
16
require. Thus, the “recantation” video was admissible, and Franklin’s right to
confront Sam was not violated.
B. Admissibility of Specific Statements in Videos
Second, Franklin argues that the recordings of Sam’s prior trial
testimony and forensic interviews contained numerous inadmissible
statements, which further highlight the violation of her right to confront Sam.
The Commonwealth asserts Franklin waived any error contained in the
recordings of Sam’s prior trial testimony and CAC interviews because defense
counsel stated no contemporaneous objection to any of the three videos.
Franklin requests review for palpable error under RCr 4 10.26, but that
rule “is not a substitute for the requirement that a litigant must
contemporaneously object to preserve an error for review” under RCr 9.22.
Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). To avoid waiving an
issue for appeal, “[t]he general rule is that a party must make a proper
objection to the trial court and request a ruling on that objection.” Id. (citing
Bell v. Commonwealth, 473 S.W.2d 820 (Ky. 1971)). This Court has the
discretion to review for palpable error:
We will reverse under the palpable error standard only
when a “manifest injustice has resulted from the
error.” RCr 10.26. “[T]he required showing is probability
of a different result or error so fundamental as to threaten
a defendant’s entitlement to due process of law.” Martin v.
Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). When we
engage in palpable error review, our “focus is on what
happened and whether the defect is so manifest,
fundamental and unambiguous that it threatens the
4 Kentucky Rules of Criminal Procedure.
17
integrity of the judicial process.”
Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).
i. Admissibility of Statements in Prior Trial Testimony
Regarding the prior trial testimony, the Commonwealth argues Franklin
waived this argument on appeal because she admits in her brief that she did
not object to the Commonwealth’s edits of Sam’s testimony from the first trial.
Prior to playing the video, the Commonwealth made proposed redactions to the
prior trial testimony, and the circuit court granted Franklin’s counsel a recess
to review the redacted video. Defense counsel reviewed the video and informed
the court that it accurately reflected the admissible portions of Sam’s testimony
and did not object to it being published to the jury. Defense counsel was okay
with the circuit court stating Sam was unavailable to testify, and that the
Commonwealth was playing previously recorded sworn testimony.
Franklin argues there were three inadmissible statements in Sam’s prior
trial testimony. None of these arguments are preserved and were arguably
waived when defense counsel consented to playing the recording of Sam’s of
the prior trial testimony. However, we elect to review the three statements
Franklin complains about for palpable error.
Franklin argues Sam’s testimony about Franklin physically abusing him
and his siblings including whipping them with a “paint stick” was not relevant
to the allegations, was prejudicial, violated KRE 404(b), KRE 403, and KRE
402, and is even reversible error under the palpable error standard. Franklin
did not specifically object to the “paint stick” comment or any other testimony
18
about physical abuse when Sam’s recorded testimony was played during the
second trial. Franklin cites no case law in support of this argument.
Generally, in cases of sexual abuse where the indictment does not
include allegations of other physical abuse, “evidence of . . . physical abuse of
[the victim] and other members of his family would . . . be inadmissible if
offered only to prove his bad character or criminal predisposition.” Bartley v.
Commonwealth, 485 S.W.3d 335, 344 (Ky. 2016) (citing Alford v.
Commonwealth, 338 S.W.3d 240, 250 (Ky. 2011)). However, “[s]uch evidence
‘is admissible only if probative of an issue independent of character or criminal
predisposition, and only if its probative value on that issue outweighs the
unfair prejudice with respect to character.’” Id. (quoting Billings v.
Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992)).
Here, Sam’s reference to physical abuse and the paint stick spankings
was brief. Additionally, though not argued by either party, Franklin was
charged with first-degree rape and first-degree sodomy. KRS 5 510.040(1)(a);
KRS 510.070(1)(a). “Forcible compulsion” is an element of both offenses and is
defined as: “means physical force or threat of physical force, express or
implied, which places a person in fear of immediate death, physical injury to
self or another person. . .” KRS 510.010(2). Thus, these statements went to
proving an element of the offenses and did not amount to manifest injustice to
warrant to palpable error.
5 Kentucky Revised Statutes.
19
Next, Franklin argues Sam’s testimony about the escalating acts of
sexual abuse coupled with a reference to CPS’s involvement amounted to
bolstering and vouching in violation of KRE 404(b), KRE 403, and KRE 402.
On the recording of Sam’s prior trial testimony, Franklin objected, and the
circuit court overruled the objection as recounting events. Franklin did not
object to this portion of the video being played during the second trial.
“KRE 404(b)(2) allows the Commonwealth to present a complete,
unfragmented picture of the crime and investigation.” Adkins v.
Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003). “[A] jury cannot be expected
to make its decision in a void—without knowledge of the time, place, and
circumstances of the acts which form the basis of the charge.” Kerr v.
Commonwealth, 400 S.W.3d 250, 262 (Ky. 2013) (footnote and internal
quotation marks omitted).
We agree with the circuit court’s finding that Sam’s reference to CPS was
part of his recounting of events as they occurred. Sam did not state why CPS
visited Franklin’s house, and the reference was brief. As such, this remark did
not amount to manifest injustice required to meet the palpable error standard.
Additionally, Franklin argues Sam’s testimony that he had been in
therapy for many years, including intensive inpatient therapy, due to
Franklin’s sexually abusive acts which rendered him sexually dysfunctional,
was inadmissible. She argues it amounted to impermissible victim impact
testimony, bolstering, vouching, and Child Sexual Abuse Accommodation
Syndrome evidence mandating reversal under RCr 10.26. Franklin did not
20
object to this testimony when the recording was played during the second trial.
Evidence of a victim’s “emotional injury [is] directly relevant to prove that
[he] was sexually assaulted, an element of the Commonwealth’s case-in-chief.”
Dickerson v. Commonwealth, 174 S.W.3d 451, 471 (Ky. 2005). Because such
testimony was relevant to proving the Commonwealth’s case, it did not amount
to palpable error.
ii. Admissibility of Statements in Forensic Interviews
Franklin argues playing almost all the lengthy CAC interviews as prior
consistent statements was reversible error, and she points out seventeen
inadmissible statements in the two CAC interviews.
Above, we held playing the forensic interviews did not violate the
Confrontation Clause because Sam was cross-examined on them before a
mistrial was declared in the first trial. Defense counsel did not object to the
playing of the forensic interviews, except for two individual answers. Franklin
only raises one of the issues she objected to at trial on appeal.
Franklin argues Sam’s statements in the first CAC interview about
physical abuse against Sam and his sibling involving a paint stick were
inadmissible under KRE 404(b), KRE 403, KRE 402, and RCr 10.26. Franklin
objected to Sam’s statement in his first CAC interview about Franklin hitting
his siblings with a paint stick and other physical abuse against them. The
Commonwealth argued the statement was admissible as a prior consistent
statement after Sam’s credibility was attacked by defense counsel on cross-
examination. The trial court allowed the statements to stand but would
21
exclude anything beyond what was already said.
Above, we held Sam’s statements about physical abuse and the paint
stick were admissible for the purpose of proving “forcible compulsion,” which is
an element of first-degree rape and first-degree sodomy. Additionally, the
reference to physical abuse and the paint stick were consistent with Sam’s
prior trial testimony. The circuit court admitted the CAC interviews as prior
consistent statements. Thus, the circuit court did not abuse its discretion in
admitting Sam’s CAC interview statements about physical abuse and hitting
with a “paint stick.”
As Franklin did not object to playing the CAC interviews or any of the
sixteen other statements complained of on appeal, we deem her arguments
about the other inadmissible statements waived. Pace, 82 S.W.3d at 895. We
decline to review for palpable error as Franklin does not explain how, had the
trial court excluded alleged erroneous statements in the CAC videos, there was
a substantial possibility of a different result. Id.
C. Specificity of Jury Instructions
Third, Franklin argues the circuit court erred in denying her a
unanimous verdict because the jury instructions were not sufficiently specific
to differentiate between which testimony supported which of the two first-
degree rape charges. The Commonwealth asserts this issue is unpreserved or
even waived as defense counsel proposed nearly identical instructions and
specifically approved the instructions as written because counsel agreed they
eliminated any unanimity problem. Franklin’s brief even seems to cede that
22
there is a preservation issue. As such, Franklin waived her right to appeal this
issue. “We recognized that ‘invited errors that amount to a waiver, i.e.,
invitations that reflect the party's knowing relinquishment of a right, are not
subject to appellate review.” Thornton v. Commonwealth, 421 S.W.3d 372, 377
(Ky. 2013) (citation omitted).
Even if Franklin had not waived this issue, the jury instructions did not
amount to palpable error. The first first-degree instruction stated, “the
Defendant engaged in sexual intercourse with [Sam], when [Sam] was held
down in Defendant’s bedroom.” R. at 376. The second first-degree charge
stated, “the Defendant engaged in sexual intercourse with [Sam], when [Sam]
was held down in his bed.” R. at 378. Both charges contained the same date
range. Similar differentiation was used to distinguish between instructions for
the two counts of incest.
The Kentucky Constitution and case law require a defendant be
convicted by unanimous verdict, and part of that right requires differentiated
jury instructions for multiple counts of the same charge:
Section 7 of the Kentucky Constitution guarantees
that “a defendant cannot be convicted of a criminal
offense except by a unanimous verdict.” Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)
(citations omitted). “[T]he Commonwealth must
introduce evidence sufficient to prove each offense and
to differentiate each count from the others, and the
jury must be separately instructed on each charged
offense.” King v. Commonwealth, 554 S.W.3d 343, 354
(Ky. 2018) (quoting Miller v. Commonwealth, 77 S.W.3d
566, 576 (Ky. 2002)). “[A] trial court is obliged to
include some sort of identifying characteristic in each
instruction that will require the jury to determine
23
whether it is satisfied from the evidence the existence
of facts proving that each of the separately charged
offenses occurred.” Harp v. Commonwealth, 266
S.W.3d 813, 818 (Ky. 2008). In Johnson v.
Commonwealth, we held, “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 based on the proof—
violates the requirement of a unanimous verdict.” 405
S.W.3d 439, 449 (Ky. 2013).
Barrett v. Commonwealth, 677 S.W.3d 326, 341–42 (Ky. 2023).
In Barrett, the jury instructions contained nine counts of sexual abuse
that occurred during the same timeframe, and each jury instruction “contained
a different set of facts describing a specific incident of sexual abuse.” Id. at
343. There, Jury Instruction #4 instructed the jury to find the defendant guilty
if he “subjected [K.V.] to sexual contact when he touched her upper inner thigh
with his hand for the first time while [K.V.] was laying in her mother's bed.” Id.
Jury Instruction #6 contained a distinct set of facts and “instructed the jury to
find Barrett guilty if ‘he subjected [K.V.] to sexual contact when he touched
[K.V.’s] vagina under her clothing with his hand while she was laying on her
bed on the occurrence where her mother had gone to the store.’” Id.
In Barrett, one of the main differentiating facts was whether the act
occurred in the victim’s bed or her mother’s bed. Here, there were only two
counts of first-degree rape, so differentiating between whether the act occurred
in Franklin’s bed or Sam’s bed is sufficiently specific to meet the unanimous
verdict requirement. Thus, whether we deem this issue waived or review for
palpable error, Franklin was not denied her right to a unanimous verdict.
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D. Denial of Motion for Directed Verdict
Fourth, Franklin argues the circuit court erred in denying her motion for
directed verdict. Franklin moved for directed verdict at the close of the
Commonwealth’s evidence, and she renewed the motion at the close of all
evidence as required in Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky.
2020). The circuit court denied the motion finding, in the light most favorable
to the Commonwealth, a reasonable juror could make a finding in this case.
The court further found credibility was an issue for the jury to determine.
Franklin argues that, in the CAC interviews, Sam admitted to fabricating
sexual abuse claims against other people while claiming the allegations against
Franklin were true. She asserts that later Sam recanted the allegations against
her, but then Sam refused to testify at trial. Franklin also asserts Sam was
unable to describe physical characteristics about her body that he should have
been able to identify if his allegations were true. Aside from the issues with
Sam’s testimony, Franklin notes that there was no physical evidence in this
case, the Commonwealth presented no witnesses to the abuse, and Franklin
did not admit to the allegations.
On appeal, we “must ascribe to the evidence all reasonable inferences
and deductions which support the claim of the prevailing party.” Holland v.
United Servs. Auto. Ass’n, 707 S.W.3d 541, 550 (Ky. App. 2025) (quoting
Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)). Our review is highly
deferential to the trial court because “a reviewing court cannot substitute its
judgment for that of the trial judge unless the trial judge was completely
25
erroneous.” Id. (citation omitted). In reviewing a denial of a directed verdict,
“the test . . . is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.” Ray, 611 S.W.3d at 266 (footnote omitted).
It is well settled 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.’” Sheets v. Commonwealth, 495 S.W.3d
654, 661 (Ky. 2016) (quoting Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky.
2001)). However, discrepancies in the victim’s testimony “are matters of
credibility going to the weight to be given by the jury to the child’s testimony.”
Id.
Sam’s allegations against Franklin were consistent in two CAC interviews
and his testimony from the first trial. In each setting, Sam described Franklin
undressing in front of him, and their contact escalated from mutual touching
to masturbation, oral sex, and finally sexual intercourse. He provided similar
details each time.
During cross-examination in the first trial, Sam, admitted he made up
allegations of sexual abuse against other individuals in the first CAC interview.
Those fabricated allegations did not involve Franklin. Instead, he remained
consistent, despite admitting to lying, that he did not make up the allegations
against Franklin. Thus, Sam’s actual testimony was consistent regarding his
allegations about Franklin.
Sam’s statements in the “recantation” video contradicted his allegations
26
in the CAC interviews and first trial testimony. However, this out-of-court
interrogation by Franklin’s son/Sam’s Uncle Warren was entered into evidence
by Franklin through Warren’s testimony. Sam’s trial testimony was consistent.
Whether the jury chose to believe Sam’s trial testimony and CAC interviews or
his statements in Warren’s “recantation” video was a credibility issue for the
jury to decide. Thus, the circuit court did not err in denying Franklin’s motion
for directed verdict.
E. Testimony about Loss of Custody
Fifth, Franklin argues the circuit court erred in allowing the
Commonwealth to present evidence Franklin lost custody of Sam and his
siblings. During Franklin’s testimony, she denied the allegations of abuse and
discussed all the things she did for her grandkids to show she was a good
caregiver. On cross-examination, the Commonwealth asked Franklin if she lost
custody of Sam. Defense counsel objected arguing the Commonwealth asked
Franklin to testify about custody cases involving the other grandchildren,
which had already been excluded from evidence. The Commonwealth argued
Franklin opened the door to character evidence by talking about loving her
grandchildren and all the places she took them. The circuit court allowed the
Commonwealth to ask if Sam and Franklin’s other grandchildren were removed
from her care to demonstrate Franklin was not a good caregiver, but the
Commonwealth could not ask about allegations of abuse of the other
grandchildren unless Franklin opened the door to it.
The Commonwealth asked Franklin if she lost custody of Sam and her
27
other grandchildren. Franklin initially responded she had not lost custody of
her grandchildren. Upon further questioning, Franklin responded that her loss
of custody was temporary until the judge made a final ruling in the other
grandchildren’s cases. Sam was a ward of the state and four days away from
being emancipated. The Commonwealth asked if the children were removed
from the home because things were not great at home, and Franklin said
things were great.
We review evidentiary issues for abuse of discretion. Stansbury v.
Commonwealth, 454 S.W.3d 293, 297 (Ky. 2015) (citation omitted). “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).
Character evidence is only admissible in certain circumstances:
Generally, “[C]haracter can be proven only by evidence
of general reputation or by opinion, not by specific
instances of conduct.” Tamme v. Commonwealth, 973
S.W.2d 13, 29 (Ky.1998); KRE 405. Moreover, KRE
404(a) holds that “[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.” KRE 404.
Stansbury, 454 S.W.3d at 300.
However, an exception arises “[w]hen 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.” Id. (quoting Metcalf v. Commonwealth, 158
28
S.W.3d 740, 746 (Ky. 2005)). This Court has held that even when a witness
opens the door “only slightly,” the Commonwealth may cross-examine on
“specific instances of conduct.” Johnson v. Commonwealth, 105 S.W.3d 430,
441 (Ky. 2003).
Here, Franklin opened the door to character evidence when she testified
about the positive things she did for her grandchildren, including getting them
on the school bus early in the morning, homeschooling Sam, and taking them
on trips. As held in Metcalf and Stansbury, once Franklin “opened the door to
the introduction of ‘good’ character evidence, [s]he cannot complain if the
Commonwealth walked through that door and introduced character evidence
not to [her] liking.” Stansbury, 454 S.W.3d at 301. Franklin testified to
specific acts to show the jury she was a good caregiver to her grandchildren. It
was then permissible for the Commonwealth to introduce evidence that
Franklin lost custody of her grandchildren to rebut her insinuation that she
was a good caregiver. As such, the circuit court did not abuse its discretion in
admitting testimony regarding Franklin’s loss of custody.
F. Cumulative Error
Finally, Franklin argues the sum of these alleged errors amounts to
cumulative error. This Court will find cumulative error only when:
multiple errors, although harmless individually, may
be deemed reversible if their cumulative effect is to
render the trial fundamentally unfair.
We have found cumulative error only where the
individual errors were themselves substantial,
bordering, at least, on the prejudicial. Where . . . none
of the errors individually raised any real question of
prejudice, we have declined to hold that the absence of
29
prejudice plus the absence of prejudice somehow adds
up to prejudice.
Faughn v. Commonwealth, 694 S.W.3d 339, 356–57 (Ky. 2024) (quoting Brown
v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). In our review of
Franklin’s case, we found no errors in trial let alone any that were prejudicial
enough to warrant reversal. Even though the parties presented conflicting
evidence, Franklin’s trial was not fundamentally unfair. As such, there was no
cumulative error.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Anderson Circuit Court.
All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, and Keller, JJ.,
concur. Nickell and Thompson, JJ., concur in result only.
COUNSEL FOR APPELLANT:
John Gerhart Landon
Landon Law, PLLC
COUNSEL FOR APPELLEE:
Russell Coleman
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
30
Case Information
- Court
- Ky.
- Decision Date
- June 20, 2025
- Status
- Precedential