                                                   RENDERED: FEBRUARY 19, 2015
                                                              rrI3E7PUIZIS ED

                     uprrnw Court of 71 tiffurtvil                          §-\\
                                 2013-SC-000833-MR
                                                            1AT                            D. .
GARY STEVEN BOND                                                             APPELLANT


                 ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                    HONORABLE MITCH PERRY, JUDGE
                             NO. 10-CR-001550


COMMONWEALTH OF KENTUCKY                                                       APPELLEE



                 OPINION OF THE COURT BY JUSTICE KELLER

                                      AFFIRMING

       A jury found Gary Steven Bond (Bond) guilty of murder and sodomy in

the first degree. The court, consistent with the jury's recommendation,

sentenced Bond to life without the possibility of parole for 25 years on the

murder conviction.' The court, consistent with an agreement between Bond

and the Commonwealth, sentenced Bond to 20 years' imprisonment on the

sodomy charge, to run concurrently with the sentence for murder. Bond

appeals his convictions arguing: (1) the court should have suppressed a

statement he gave to police; (2) absent suppression, the court should have

permitted Bond to play his entire statement for the jury; and (3) the court

should have granted a directed verdict on the sodomy charge because there




      I The jury found that sodomy in the first degree was an aggravator under KRS
532.025, justifying the sentence of life without the possibility of parole for 25 years.
was no corroborating proof to support his confession to that crime. For the

following reasons, we affirm.

                                   I. BACKGROUND.

      In May of 2010, Mark Shelby (Shelby) was temporarily living with Bond

and sleeping on Bond's couch. At approximately 5:30 p.m. on May 11, Shelby

arrived at Bond's apartment and found Bond and his girlfriend, Julie

Hendricks (Hendricks), getting dressed in the bedroom. The three ate dinner

and drank some beer and Jagermeister. 2 At approximately 8:00 p.m.

Hendricks passed out on the living room floor. Because Hendricks weighed in

excess of 250 pounds, Bond and Shelby could not lift her. Therefore, they

dragged her into the bedroom and left her on the floor. Bond covered

Hendricks, who was clothed, with a blanket and he and Shelby returned to the

living room. At approximately 10:00 p.m., Bond went into the bedroom, and

Shelby went to sleep on the couch.

      At approximately 1:45 a.m. Bond woke Shelby and said that he thought

Hendricks had died. Shelby went into the bedroom and saw that Hendricks,

Who was nude, was turning blue and appeared to be dead. Shelby encouraged

Bond to call 911, which Bond did approximately a half hour later. Emergency

personnel confirmed that Hendricks had died and, because the death appeared

suspicious, the deputy coroner called the police. Detective Brenda Wescott

(Detective Wescott) arrived at Bond's apartment at approximately 4:30 a.m. and

interviewed Bond and Shelby. However, because she did not initially believe


      2   A fruit flavored German liqueur.

                                             2
Hendricks's death was a homicide, Wescott did not take any physical evidence

from Bond's apartment.

      The autopsy report indicated that Hendricks had died as the result of

strangulation and that she had had anal sex sometime prior to her death.

Based on these findings, police officers returned to Bond's apartment and

asked him if he would go to the station to be interviewed. Bond agreed. After

reading Bond his rights and obtaining a waiver, Detective John Lesher

(Detective Lesher) questioned Bond at length. During that interview, Bond

admitted that he had had anal sex with Hendricks while she was unconscious

on the bedroom floor and that he had pulled on Hendricks's tee shirt while

doing so. However, he stated that he did not think Hendricks died at that time.

Later, Bond denied that he had anal sex with Hendricks while she was

unconscious, stating that the couple had consensual anal sex earlier in the day

and were interrupted by Shelby. Bond also claimed that Lesher concocted the

story about him having anal sex with Hendricks while she was unconscious.

      The officers arrested Bond and charged him with murder and first-degree

sodomy. Prior to trial, Bond moved to suppress his statement, a motion the

court denied. At trial, the Commonwealth played portions of Bond's statement

and Bond moved for leave to play the entire statement, a motion the court

denied. We set forth additional facts about Bond's statement, which is at the

center of this appeal, as necessary below.




                                        3
                           II. STANDARD OF REVIEW.

      The issues raised by Bond have differing standards of review. Therefore,

we set forth the appropriate standard as we address each of the issues Bond

raises.

                                  III. ANALYSIS.

A.    Motion to Suppress.

      The standard of review on a suppression motion is twofold. First, we

defer to the trial court's factual findings if they are supported by substantial

evidence and only review such findings for clear error. RCr 9.78;

Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). Second, when the

findings of fact are supported by substantial evidence, we review the court's

application of the law to those facts de novo. Roberson v. Commonwealth, 185

S.W.3d 634, 637 (Ky. 2006). When undertaking that review we take care "to

give due weight to inferences drawn from those facts by resident judges and

local law enforcement officers." Ornelas v. United States, 517 U.S. 690 at 699

(1996).

      On July 17, 2013, Bond filed a motion to suppress the May 13, 2010,

statement he gave to Detectives Lesher, Cohn, and Wescott. 3 Bond did not

challenge the fact that he had been advised he had the right to remain silent

and to counsel and that he waived those rights before agreeing to speak with


        3 Bond raised an issue in his motion before the trial court regarding the
statement he gave to Detective Wescott on May 12, 2010. However, his counsel
admitted after the evidentiary hearing on that motion that he was not pursuing any
issues regarding that statement. Furthermore, he does not raise any issues regarding
that statement in this appeal. Therefore, we do not address it.

                                          4
the detectives. However, he argued that the detectives intentionally minimized

the significance of the warning about the implications of waiving his rights so

as to negate the knowingness of his waiver. He also argued that police conduct

during the interviews was unduly oppressive and coercive, thus negating the

voluntariness of his waiver. The Commonwealth argued that Bond was not in

custody and that he had knowingly and voluntarily waived his rights.

         Following an evidentiary hearing, the trial court denied Bond's motion

finding that the interrogation was custodial; that Bond had been advised of his

rights; and that he had waived them. In doing so, the court noted that Bond

never asked the detectives to stop the interrogation, and he never asked to

speak with an attorney. The court also found that the tactics used by the

detective were "fairly standard." 4 Bond did not file any motions seeking

additional findings of fact from the court.

         Bond continues to argue on appeal that the detectives' actions vitiated

the knowingness and voluntariness of his waiver and were unduly coercive. He

also argues that the trial court did not make sufficient findings of fact. The

Commonwealth argues to the contrary. We address each issue separately

below.

    1. Knowingness of Waiver.

         Bond argues that the detectives negated the waiver of his rights by

misleading him as to the significance of the waiver and the nature of the



        4 The trial court issued an oral order on the record following the hearing and
later entered into the record a similarly worded written order.

                                            5
interview. In support of his argument, he points to several statements made by

the detectives during the interview. At the beginning of the interview, Detective

Lesher told Bond that he had a digital audio recorder for his use because he

"forget[s] a lot." Detective Lesher then asked Bond if it was okay to record the

interview, and Bond said it was. However, Detective Lesher did not tell Bond

that the interview was being recorded by a video camera as well as the audio

recorder.

      After obtaining Bond's consent to record the interview, Detective Lesher

asked Bond if he ever watched any true crime stories on television. Bond

stated that he did, and Detective Lesher then said, "Okay. Uh, I'm gonna read

you your rights, we do this all the time. It's no big deal. Okay?" Detective

Lesher then read Bond his rights; Bond agreed that he understood his rights;

and he signed a written waiver form. Later in the interview, Detective Lesher

described his wife as "a freak" when it comes to sex, and began describing his

sex life. Bond, referring to the digital recorder, said, "Turn that off." Lesher

said, "Oh, I don't care about that. It's just for me." Bond then said, "Oh,

Okay." And Detective Lesher reiterated, "[T]hat's just for me to remember."

      Bond argues that this behavior by Detective Lesher is the same type of

behavior this Court condemned in Leger v. Commonwealth, 400 S.W.3d 745

(Ky. 2013.) In Leger, after being read his rights, Leger agreed to speak with a

police officer about several crimes he allegedly committed. Id. at 747. When

questioned about specific incidents, Leger asked the officer, "What I am telling

you now is between us, right. It ain't goin' [unintelligible]?" To which the


                                         6
officer replied, "Right." Id. Leger then confessed to several of the alleged

offenses. Id. Leger sought to suppress his statement arguing that the officer's

assurance the statement would be "between us" had vitiated the previously

given Miranda warnings. Leger also argued that the officer's interrogation style

was "so deceptive that it unfairly induced [Leger] to forget that the [officer] was

an 'adversary,' and 'revealed an atmosphere' that prompted [Leger] to speak

against his better interest." Id. at 748.

      As to the officer's interrogation style, we discerned "absolutely nothing

improper about" his "courteous and friendly demeanor or the impression of

cordiality created by his manner of speaking with [Leger]."    Id. Furthermore,

we recognized that "[a]rtful deception is an invaluable and legitimate tool in the

police officer's bag of clever investigative devices, but deception about the rights

protected by Miranda and the legal effects of giving up those rights is not one of

those tools." Id. at 750.

      As in Leger, we discern nothing improper about Detective Lesher's

interrogation style. Although Detective Lesher's statements about his wife may

have been deceptive and may have lulled Bond into a sense of security, they

were not beyond the bounds of acceptable "clever investigative devices."

      Furthermore, Detective Lesher's comments that the digital recorder was

"just for me" because he "forgets a lot" do not rise to the level of the statements

by the officer in Leger and the cases we cited therein. In those cases, the

officers specifically stated that the conversation was going to be kept

confidential or between the officer and the defendant. That is not what


                                            7
occurred here. Here, Detective Lesher simply stated that the recorder was for

his use. He did not state that what Bond said would be kept confidential or

that what Bond said would be kept between them. It is the statements a

defendant makes that "can and will be used against" him, not necessarily the

recording of those statements. If there had been no recorder present or if the

recorder had been turned off, the Commonwealth would still have been able to

use any statements made against him by Bond.

      We are, however, somewhat concerned about Detective Lesher's

statement - "We do this all the time. It's no big deal" - prior to reading Bond

his rights. Taken out of context, this statement by Detective Lesher could be

construed as minimizing the significance of the rights Bond was being asked to

waive. However, in the context in which it was made, i.e. Bond's familiarity

with the process from watching true crime television shows, we cannot say that

it vitiated Bond's knowing waiver of his rights.

   2. Voluntariness of Waiver.

      During the course of the interview, Detectives Lesher and Cohn told

Bond several times that the detectives just wanted to get additional

information, that Bond was not "in trouble," and that they did not think there

had been an intentional or criminal act. Bond argues this questioning

"subverted the Miranda warnings that anything [Bond] said could and would be

used against him in court" by indicating that "what he said or 'explained' was

not going to get him in trouble and ultimately was not a crime." Detective

Lesher testified at the suppression hearing that, when he made those


                                         8
comments, they were true. The detectives had received information from the

medical examiner indicating that Hendricks had been strangled to death. At

that time they did not know who had strangled her or how she had been

strangled. Therefore, the detectives' statements to Bond were not obviously

false when made. Furthermore, while the detectives may have downplayed

Bond's culpability, they did not, after reading Bond his Miranda warning, state

that they would not use any statements against him. Statements such as

those made by the detectives, while coming close to crossing the line between

"clever investigative devices" and prohibited behavior, did not cross that line.

        Additionally, Bond argues that the detectives' conduct violated Kentucky

Revised Statute (KRS) 422.110, the "anti-sweating" statute by "plying" him with

questions. KRS 422.110 provides that:

        No peace officer, or other person having lawful custody of any
        person charged with crime, shall attempt to obtain information
        from the accused concerning his connection with or knowledge of
        crime by plying him with questions, or extort information to be
        used against him on his trial by threats or other wrongful means,
        nor shall the person having custody of the accused permit any
        other person to do so.

        Detectives Lesher and Wescott testified at the suppression hearing that

they   and Detective Cohn asked Bond the same or similar questions several
times throughout the course of the interview. By way of explanation, Detective

Lesher stated that, to the extent Bond was repeatedly questioned about the

events of May 12, it was because Bond kept changing his story. The trial court

found this conduct was within the bounds of acceptable and "fairly standard"

police practice. We agree.


                                         9
      As our predecessor Court held: "Plying with questions means the

persistent and repeated propounding of inquiries to elicit a desired answer,

carried to such an extent that the prisoner feels required to answer as the

questioner wishes in order, to escape from the pressure." Bennett v.

Commonwealth, 242 Ky. 244, 46 S.W.2d 84, 85 (1932). Detectives Lesher and

Wescott admitted that they asked Bond the same or similar questions several

times. However, a reading of the transcript of the interview does not support

Bond's argument that repeated questioning by the detectives was designed to

elicit a desired answer. Rather, it was designed to clarify Bond's changing

version of events. Furthermore, there is no indication that the detectives

exerted any undue pressure from which Bond would have wanted to escape.

   3. Sufficiency of Trial Court's Findings of Fact.

      Finally, Bond argues that the trial court's findings of fact were not

sufficient to meet the requirements of Kentucky Rule of Criminal Procedure

1RCr) 9.78. However, Bond did not ask the trial court to make additional

findings of fact. Therefore, we need not and do not address that issue.       See

Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky. 2004).

C. Admission of Entire Statement.

      The Commonwealth indicated that it intended to play portions of Bond's

interview for the jury. Bond argued that, if the court permitted the

Commonwealth to play part of the interview, it had to play the entire interview.

In the alternative, Bond moved the court for an order permitting him to play

those parts of the interview wherein he expressed his love for Hendricks. He


                                        10
also sought permission to play those portions of the interview that he believed

showed that the detectives planted the seed that he sodomized Hendricks while

she was unconscious. The Commonwealth argued that the portions Bond

wanted to play amounted to inadmissible hearsay. The court ruled that the

Commonwealth could play selected portions of the interview and that Bond

could not play the redacted portions of the interview. In doing so, the court

noted that what Bond wanted to play for the jury was "classic hearsay," and he

could attempt to put the excluded portions of the statement before the jury by

testifying or through cross-examination of the detectives.

      On appeal, Bond argues that he should have been permitted to play the

redacted portions of the statement based on "the rule of completeness."

Kentucky Rule of Evidence (KRE) 106. He also argues that the court limited

his cross-examination of Detective Lesher so that he could not get the excluded

information before the jury. The Commonwealth argues that the trial court did

not abuse its discretion by keeping the redacted portions of Bond's statement

out of evidence. 5 We address each issue in turn.

      The standard of review on evidentiary issues is abuse of discretion. Clark

v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse of

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




       5 The Commonwealth also argues that the redacted portions of the statement
would not have been admissible under KRE 412. While Bond made an argument
regarding KRE 412 to the trial court, he does not make it here. Therefore, we do not
address it.

                                          11
unfair, or unsupported by sound legal principles." Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999).

      KRE 106 provides that: When a writing or recorded statement or part

thereof is introduced by a party, an adverse party may require the introduction

at that time of any other part or any other writing or recorded statement which

ought in fairness to be considered contemporaneously with it." A party may

admit otherwise inadmissible hearsay statements pursuant to KRE 106, but

only if "an opposing party's introduction of an incomplete out-of-court

statement would render the statement misleading or alter its perceived

meaning." Schrimsher v. Commonwealth, 190 S.W.3d 318, 330-31 (Ky. 2006)

(footnote omitted). Therefore, we must determine "whether the meaning of the

included portion is altered by the excluded portion."

Commonwealth v. Collins, 933 S.W.2d 811, 814 (Ky. 1996).

      The portions of Bond's statement played to the jury included descriptions

of his sexual activity with Hendricks in the early morning hours of May 12,

2010. Bond argues that, to get a complete picture, the jury needed to hear: his

descriptions of their varied and active sex life; his statements that he loved

Hendricks and intended to marry her; his statements that he did not intend to

hurt Hendricks and had not known that he had hurt her; and his statement

that he and Hendricks had engaged in consensual anal sex the preceding

afternoon.•

      We agree that the excluded portions of Bond's statements may have

given the jury a more complete description of his relationship to Hendricks.


                                         12
However, after reviewing the transcript, we agree with the trial court that the

exclusion of those portions did not alter the meaning of the included portions.

Furthermore, we note that Bond established through Detective Lesher that

Bond and Hendricks were engaged in consensual anal sex the afternoon of May

11 when Shelby arrived and interrupted them; that Detective Lesher brought

up rough sex and choking; that Bond had accidentally strangled Hendricks;

that Bond denied ever striking Hendricks; and that Bond believed that

Hendricks was not dead when he finished having sex with her. Thus, Bond

was able to get into evidence the majority of what he wanted through Detective

Lesher. Furthermore, the portions Bond was not able to otherwise get into

evidence did not alter the meaning of the included portions. Therefore, we

discern no abuse of discretion in the trial court's refusal to admit Bond's entire

statement.

B. The Trial Court did not Err in Denying Bond's Motion for a Directed
     Verdict as to the Sodomy Charge.

      Bond was convicted of sodomy in the first degree. "A person is guilty of

sodomy in the first degree when: . . . (b) He engages in deviate sexual

intercourse with another person who is incapable of consent because he:

1. Is physically helpless . . . ." KRS 510.070. Bond's conviction was based on

his having had anal sex with Hendricks after she had passed out from drinking

too much alcohol. He argues that the only evidence that Hendricks was

"physically helpless" when he engaged in anal sex with her was his May 13,

2010, statement, which was not, by itself, sufficient to support his conviction.



                                        13
      Bond is correct that, pursuant to RCr 9.60, "A confession of a defendant,

unless made in open court, will not warrant a conviction unless accompanied

by other proof that such an offense was committed." However, Bond is

incorrect that there was not sufficient other proof to support his conviction.

The other proof required by RCr 9.60 "relates only to proof that a crime was

committed, not to whether the defendant committed it." Lofthouse v.

Commonwealth, 13 S.W.3d 236, 242 (Ky. 2000). Furthermore, the

corroborating proof need not establish beyond a reasonable doubt that a crime

occurred, and the court may consider that proof in conjunction with a

confession to determine whether a crime occurred.     Young v. Commonwealth,

426 S.W.3d 577, 583 (Ky. 2014).

      Other than Bond's confession, the Commonwealth presented the

following evidence that Bond engaged in anal sex with Hendricks while she was

unconscious and physically helpless. Shelby testified that Hendricks was

unconscious and clothed when he and Bond dragged her into the bedroom and

left her on the floor. When Shelby went into the bedroom later that night,

Hendricks was nude. The medical examiner testified that she found evidence

of anal tearing and contusions when she examined Hendricks. Although the

medical examiner could not state conclusively that the tearing occurred

through anal sex, she testified that it could have and that the tearing occurred

within hours of Hendricks's death. Furthermore, the medical examiner

testified that Hendricks was significantly intoxicated, and her level of




                                        14
intoxication 6 would have been consistent with her having passed out and

would have impeded her ability to struggle or otherwise resist while being

strangled.

      Bond argues that Shelby testified that Bond and Hendricks may have

been having sex when he got to the apartment, which would be consistent with

him having had anal sex with Hendricks several hours before her death, and

would have accounted for her anal injuries. He also argues that the medical

examiner could not conclusively tie Hendricks's anal tearing to anal sex; could

not state whether Hendricks was conscious or not when the tearing occurred;

could not state whether any anal sex was consensual or not; and "could not

state whether the strangulation and the tearing occurred at the same time. All

of that is true. However, the issue is not whether Bond presented proof that

contradicted his statement; the issue is whether the Commonwealth presented

proof that corroborated Bond's statement. As set forth above, the

Commonwealth's other proof, in conjunction with Bond's confession, was

sufficient to establish that the crime of first-degree sodomy occurred. That is

all the Commonwealth was required to prove; therefore, we discern no error in

the trial court's denial of Bond's motion for a directed verdict.




      6 The medical examiner testified that Hendricks had a blood alcohol level
between 0.317% and 0.38%.

                                          15
                               IV. CONCLUSION.

      For the reasons set forth above, we affirm.

      Minton, C.J.; Abramson, Cunningham, Noble and Venters, JJ., sitting.

All concur.




COUNSEL FOR APPELLANT:

Daniel T. Goyette
Cicely Jaracz Lambert
Office of the Louisville Metro Public Defender


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Coleman Shackelford
Assistant Attorney General




                                        16
