             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                                 RENDERED: OCTOBER 23, 2014
                                                         T TO BE PUBLISHED

               ,i5uprrtur Gurf of
                               2013-SC-000446-MR               11'1_
STEPH6N SLONE
                                                      DAT           \\"'‘:\tk
                                                                         APPELLANT


                   ON APPEAL FROM PERRY CIRCUIT COURT
V.                 HONORABLE WILLIAM ENGLE III, JUDGE
                             NO. 12-CR-00220


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      Appellant, Stephon Slone, appeals from a judgment of the Perry Circuit

Court convicting him of fifst-degree rape and of being a second-degree

persistent felony offender. As a result of these convictions Appellant was

sentenced to twenty years' imprisonment.

      As grounds for relief Appellant contends that (1) he was entitled to a

directed verdict of acquittal on the rape charge; (2) he did not receive a fair trial

because of prosecutorial misconduct; (3) the trial court's failure to declare a

mistrial in response to the Commonwealth's discovery violations produced a

manifest injustice; (4) he was denied the right to present his defense when the

trial court refused to permit him to introduce into evidence a juvenile court

petition filed against the victim; and (5) the trial court erroneously permitted

the Commonwealth to introduce evidence concerning his prior drug use.

      For the reasons stated below, we affirm.
                 I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant and his girlfriend, Teresa, had lived together with her son and

her daughter, "Helen," as a family household for over a decade when for a few

months in 2011, Teresa was incarcerated. Helen was fourteen years old.

Appellant was thirty.

      Several weeks after her mother's release, Helen made a 911-call to report

that Appellant had raped her three times. When interviewed later that day,

Helen told Kentucky State Police detective Chris Collins that she had been

raped only once. She also told a child welfare worker that she had been raped

only once, and she made the same allegation when she testified before the

grand jury.

      As a result of Helen's allegation, Appellant was indicted on one count of

first-degree rape by forcible compulsion, KRS 510.040(1)(a), and second-degree

persistent felony offender status.

      Appellant denied the charge of rape, and he asserted at trial that Helen

had invented the allegation as retaliation against him because he had objected

to her romantic involvement with an eighteen-year old boy. Contrary to her

earlier statements, Helen testified at trial that Appellant had raped her on

many occasions. The jury returned a guilty verdict and judgment was entered

as noted above. On appeal, Appellant raises five grounds for reversal.




      1 Helen is a pseudonym we have used to protect the privacy of the minor
involved.

                                          2
                       II. SUFFICIENCY OF THE EVIDENCE
      Appellant first contends that he was entitled to a directed verdict on the

first-degree rape charge. Our standard for review of such claims is well

established in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). On

appellate review, the reviewing court may only direct a verdict "if under the

evidence as a whole, it would be clearly unreasonable for a jury to find guilt."

Id. at 187. See also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)

("The trial court must draw all fair and reasonable inferences from the evidence

in favor of the [Commonwealth], and a directed verdict should not be given

unless the evidence is insufficient to sustain a conviction.").

      To convict on first-degree rape by forcible compulsion, the

Commonwealth must show that the accused engaged in sexual intercourse

with another person, without that person's consent, by using "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, fear of the

immediate kidnap of self or another person, or fear of any offense under [KRS

Chapter 510]." KRS 510.010(2). Upon review of the record, we are satisfied

that the Commonwealth met that burden.        Sufficient evidence was presented at

trial to support a reasonable juror's belief that Appellant engaged in conduct

that met the statutory standard for first-degree rape.

      Helen testified that Appellant entered her bedroom, told her to lie down

on her bed, put his hands around her throat, and sexually penetrated her with

his penis against her will. She testified that afterward, Appellant threatened


                                         3
that he would kill her, her mother, her brother, and himself if she told anyone

what had happened. Helen testified that Appellant's act caused her pain and

vaginal bleeding. In addition, testimony provided by sexual assault nurse

examiner Alicia Cook established that there was physical evidence to support

the allegation. Cook testified that her physical examination of Helen revealed

indications of trauma to the victim's vaginal area, including a tear on the

posterior fourchette, which despite the intact hymen, could have been the

result of penile penetration. The injury to the victim's genital area supports the

allegation of forced sexual activity.

      Appellant argues that the evidence tending to establish his guilt was so

convincingly negated by exculpatory evidence that, as a whole, the proof was

more consistent with his innocence than his guilt, and therefore, the finding of

guilt was clearly unreasonable under the Benham and Sawhill standard. He

cites testimony which showed that he had a "father-daughter" relationship with

Helen; Helen's inconsistent statements regarding the number of times she had

been raped; her delay in reporting the rapes; and the fact that she only

reported the rapes while staying with a friend. He also cites evidence casting

doubt upon Helen's credibility, including her motive to fabricate the charge

because Appellant objected to her relationship with an eighteen-year old boy

and her lies to conceal her relationship with the boy. Appellant also contends

that because the victim cried and was emotional during her testimony that the

jury's verdict was a product of passion and prejudice brought about by the

victim's poignant testimony.


                                        4
      We disagree with Appellant's position. It is well established that a jury is

free to believe the testimony of one witness over the testimony of others.     See

Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky. App. 1977). In ruling

upon Appellant's motion, the trial court was required to construe conflicting

evidence in the light most favorable to the Commonwealth.       Benham, 816

S.W.2d at 187. The testimony of a single witness is enough to support a

conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky. 2005)

(citing LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky. 1962)).

Further, matters of credibility and of the weight to be given to a witness's

testimony are solely within the province of the jury. An appellate court cannot

substitute its judgment on such matters for that of the jury.    Brewer v.

Commonwealth, 206 S.W.3d 313, 319 (Ky. 2006) (citing Commonwealth v.

Jones, 880 S.W.2d 544, 545 (Ky. 1994)). Therefore, we may not simply reject

the victim's testimony and instead choose to believe Appellant's version

because "[d}etermining the proper weight to assign to conflicting evidence is a

matter for the trier of fact and not an appellate court."   Washington v.

Commonwealth, 231 S.W.3d 762, 765 (Ky. App. 2007) 2 (citing Bierman v.

Klapheke, 967 S.W.2d 16, 19 (Ky. 1998)).

      Based upon the evidence as a whole, and upon viewing that evidence in

the light most favorable to the verdict, we are constrained to conclude that it

was not unreasonable for a jury to believe that Appellant raped the victim by



      2 Overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.

2010) (reversed and remanded by Kentucky v. King, 131 S.Ct. 1849 (2011)).

                                         5
forcible compulsion. Accordingly, the trial court did not err in denying

Appellant's motion for a directed verdict on the first-degree rape charge.


                    III. PROSECUTORIAL MISCONDUCT ISSUES

       Appellant next argues that he was denied a fair trial becauSe the

prosecutor persistently and deliberately engaged in misconduct. Specifically

Appellant contends that prosecutorial misconduct occurred when the

prosecutor: (1) accused the defense of fabricating evidence, of having its

witnesses lie on the stand, of the defense witnesses collaborating with one

another about their testimony, and accusing defense counsel of lying; (2) failed

to make timely disclosure of the victim's inconsistent allegation of multiple

rapes; 3 (3) failed to make timely disclosure of Alicia Cook's medical report; 4

(4) accused defense counsel of fabricating evidence and lying to the trial court

in connection with a screenshot of the victim's Facebook page; (5) implied that

witnesses for the defense were testifying from a "script" prepared by defense

counsel and the victim's mother; (6) accused defense counsel during cross-

examination of the victim of "being argumentative and badgering this little girl";

(7) stated rhetorically aloud, "That's sad, you know that," in response to the

victim's testimony that she could not trust anyone; (8) during a recess

approached in an intimidating manner a sixteen-year old witness without the

witness's parents being present, which Appellant claims was an attempt to


       3 This allegation of error was clearly preserved for appellate review and is
discussed in the following section of this opinion.
       4 This allegation of error was clearly preserved for appellate review and is

discussed in the following section of this opinion.

                                             6
intimidate the witness; and (9) knowingly asked improper questions and then

responded to trial counsel's objection by chuckling and withdrawing the

improper question.

      The Commonwealth responds that, with two exceptions, none of the

above allegations were preserved for appellate review by a contemporaneous

objection at trial. 5 To rebut the claim of inadequate preservation, Appellant

notes that his brief cited to nineteen points in the video record where he

objected to the prosecutor's misconduct. However, Appellant merely provided a

list of citations to the record without indicating how any particular point

relates to any particular allegation of misconduct. CR 76.12(4)(c)(v) requires

the argument in support of each claim to have "ample supportive references to

the record and citations of authority pertinent to each issue of law and . . . at

the beginning of the argument a statement with reference to the record

showing whether the issue was properly preserved for review and, if so, in what

manner." Appellant's collage of citations to the video record without correlating

them to a specific issue does not comply with 76.12(4)(c)(v). When an appellate

advocate fails to abide by this rule our options are: (1) to ignore the deficiency

and proceed with the review; (2) to strike the brief or its offending portions, CR

76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice

only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

      Here, we employ the third option and examine Appellant's argument of

prosecutorial misconduct for manifest injustice only. "Where there was no


      5   See n. 3 and n. 4.

                                          7
objection [to prosecutorial misconduct], we will reverse only where the

misconduct was flagrant and was such as to render the trial fundamentally

unfair." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).

      Generally, Appellant's claims of prosecutorial misconduct consist of

demeaning comments that tend to degrade Appellant's case and his witnesses,

insinuations of a defense effort to present false testimony at trial, and attempts

to sway the jury with undue sympathy for the victim. Upon review, we are

unpersuaded that these tactics, individually or cumulatively, resulted in a

manifest injustice or rendered the trial fundamentally unfair. RCr 10.26.

"Manifest injustice" requires showing a probability of a different result or error

so fundamental as to threaten a defendant's entitlement to due process of law,

i.e., the error so seriously affected the fairness, integrity, or public reputation of

the proceeding as to be "shocking or jurisprudentially intolerable."     Martin v.

Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006). While we may find some of the

prosecutor's behavior at trial to be offensive, we cannot say that Appellant is

entitled to relief under the manifest injustice standard.


                        IV. DISCOVERY VIOLATION ISSUES

      Appellant next claims that he was deprived of a fair trial because the

Commonwealth failed to make timely disclosure of exculpatory evidence

contained in (1) the medical report prepared by Alicia Cook in connection with

her physical examination of Helen; and (2) Helen's prior statements that

Appellant had raped her on multiple occasions.




                                          8
      Appellant frames this issue as violations of Brady v. Maryland, 373 U.S.

83 (1963). Under Brady and its progeny, a defendant's due process rights are

violated when the prosecution fails to disclose material exculpatory evidence to

the defense, regardless of the prosecution's good or bad faith.   Id. at 87; United

States v. Agurs, 427 U.S. 97, 107 (1976). Impeachment evidence is included

within the scope of exculpatory evidence that is subject to Brady. United

States v. Bagley, 473 U.S. 667, 676 (1985).

      However, the disclosure requirement applies only to "those cases in

which the government possesses information that the defense does not."

Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002). Further, "Brady

applies only to the discovery, after trial, of information which had been known

to the prosecution but unknown to the defense."'    Id., (quoting Agurs, 427 U.S.

at 103) (emphasis added). In other words, Brady and its progeny address

situations in which a defendant goes through a trial unaware of the availability

of exculpatory information withheld by the prosecution. Here however,

Appellant became aware of Cook's report and the victim's prior inconsistent

statement either before or during his trial, and so Brady is not directly

implicated. Instead, RCr 7.24 is the controlling authority which will guide our

review of the issues presented in this argument. This rule broadly requires,

among other things, the prosecution to provide a defendant with disclosure of

information in its possession which is material to his defense. RCr 7.24(9)

provides the remedy:




                                        9
       If at any time during the course of the proceedings it is brought to
       the attention of the court that a party has failed to comply with
       this rule or an order issued pursuant thereto, the court may direct
       such party to permit the discovery or inspection of materials not
       previously disclosed, grant a continuance, or prohibit the party
       from introducing in evidence the material not disclosed, or it may
       enter such other order as may be just under the circumstances.

"[A] trial court generally has broad discretion under RCr 7.24(9) to impose an

appropriate sanction for a discovery violation." Jones v. Commonwealth, 237

S.W.3d 153, 157 (Ky. 2007). With these principles in mind we now address the

two areas of alleged discovery violations raised by Appellant.

A. Medical Examination Report

      In connection with the rape investigation, Cook examined Helen and

prepared a report that was subject to the trial court's pre-trial discovery order.

Despite earlier claims of the Commonwealth that no medical report existed, one

week before the trial, defense counsel was given a copy of Cook's three-page

report. 6 The late disclosure prompted Appellant to move to suppress the report

and to prohibit Cook from testifying.

      To resolve the pending motion, and apparently to ascertain the tenor of

Cook's anticipated testimony, on the second day of trial the court allowed the

parties to examine Cook outside the presence of the jury. It was at that point

that Cook revealed a fact she had omitted from the written report: the victim's

hymen was intact and undamaged, although other indications of vaginal

trauma were present. Cook agreed that her observations were consistent with


      6 The Commonwealth asserts that it was unaware of the report's existence until
a week before the trial at which time it promptly supplied the report to defense
counsel.

                                         10
Helen's claim of being raped once. Cook further admitted that the intact

hymen made it possible that Helen was a virgin and unlikely that she had been

raped on multiple occasions as she claimed at trial.

      After Cook's in camera testimony, the Commonwealth elected not to call

her as a witness. Appellant promptly withdrew his objection to Cook's

testimony and instead elected to call her as a witness for the defense. He now

argues that these late disclosures prevented him: 1) from getting his own

expert on the possibility of rape despite the intact hymen; 2) from examining

the jury on the subject during the voir dire stage; and 3) discussing those facts

in his opening statement. Instead, defense counsel was left between a rock

and hard place: he could ask for a mistrial and a continuance to better prepare

a defense based upon the recent disclosure, which would further prolong

Appellant's pretrial incarceration; or, he could make the best of the evidentiary

turn by using the newly discovered information to his best advantage.

Appellant chose the latter.

      We appreciate the difficult and stressful challenges that trial attorneys

face in even the best of circumstances, and we recognize the difficulties

presented when sudden disclosures change the evidentiary landscape. When

late disclosures are caused by an opposing party, whether from excusable

neglect or deliberate deception, we must be attentive to remedy any injustice

that results. But, by parsing out the particulars of Appellant's argument, we

come to the conclusion that no violation occurred here.




                                        11
      The central point of Appellant's claim is that he was prejudiced because

he was not told prior to trial that the physical examination of the victim

disclosed an intact hymen. There is, however, no indication that the

Commonwealth was aware of the fact any sooner than Appellant. The

Commonwealth claims that it, too, was caught off-guard when, on the second

day of the trial, Cook first mentioned it. The Commonwealth's sudden decision

not to call Cook as its witness tends to support that claim of ignorance. The

rules for discovery in criminal cases do not require the Commonwealth to

disclose information it does not have. RCr 7.24. To establish a due process

violation based upon a failure to disclose exculpatory information, it must be

shown that the prosecutor, in good faith or bad, knew of the evidence and

failed to disclose it. Nunley v. Commonwealth, 393 S.W.3d 9, 13 (Ky. 2013).

The prosecution was under no obligation or affirmative duty to acquire that

information. Appellant's claim that he was prejudiced by a late disclosure of

the medical report is unavailing because the exculpatory evidence he

complains about was not in the written report. Having the report sooner would

not have prevented the dilemma he faced at trial.

      In summary, we find no grounds upon which Cook's testimony or the

late disclosure of her medical report would warrant reversal. Under the

circumstances before us, we are simply unable to discern any error in the trial

court's rulings relating to the medical report or to Cook's testimony.




                                        12
B. Prior Inconsistent Statements

       As previously noted, Helen made conflicting statements about the

number of times Appellant had raped her. She told the 911 operator that it

happened' "like three times." On several other occasions before trial, including

in her grand jury testimony, she said Appellant had raped her only one time.

At trial, she testified that Appellant had raped her so many times in fact that

she lost count.

      At trial, the Commonwealth conceded that it had known for several

weeks prior to trial that Helen had made numerous inconsistent statements

about the number of times Appellant had raped her. Based upon the failure to

disclose that information prior to trial, Appellant moved for a mistrial. The trial

court agreed that the prosecution should have disclosed that information, but

it nevertheless denied Appellant's motion. The trial court reasoned that

Appellant was aware of Helen's statement to the 911 dispatcher and therefore

was on notice prior to trial that the victim had previously claimed that

Appellant had raped her more than one time.

      We agree with the trial court. Under the present circumstances, where

Appellant was aware of and was able to impeach the witness on her

inconsistent statements, the failure of the Commonwealth to disclose all of the

known occasions upon which the victim made similar inconsistent claims did

not result in a manifest necessity for a mistrial.   Winstead v. Commonwealth,

327 S.W.3d 386, 402 (Ky. 2010) (A party must make a clear showing of

"manifest necessity" for a mistrial, and we review a trial court's denial of a


                                         13
motion for a mistrial for an abuse of discretion). Appellant was able at trial to

impeach the victim's testimony by cross-examining her upon her multiple prior

inconsistent statements that there had been only one sexual assault. A

manifest necessity occurs only when the error is "of such character and

magnitude that a litigant will be denied a fair and impartial trial and the

prejudicial effect can be removed in no other way [except by grant of a

mistrial]." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). While

the Commonwealth's failure to disclose all of the known occasions upon which

the victim made inconsistent statements relevant to the crime was a violation

of RCr 7.24, the error did not result in the level of prejudice required to

establish a manifest necessity to terminate the proceedings.

      In summary, we are unpersuaded that the delayed production of the

medical examination report and the victim's inconsistent statement were errors

such as would require the reversal of Appellant's conviction and sentence.


    V. EXCLUSION OF JUVENILE COURT PETITION AGAINST VICTIM DID
       NOT DEPRIVE APPELLANT OF HIS RIGHT TO PRESENT A DEFENSE

      Appellant next contends that the trial court erred by prohibiting him

from introducing into evidence a juvenile court petition relating to Helen that

was filed by her mother. The petition charged that Helen was "beyond control"

of her parents because she was not following the rules of household and was

attempting to date an eighteen-year old boy against her parents' will. The trial

court ruled that the juvenile court pleading could not be introduced into




                                         14
evidence because it was hearsay. On appeal, Appellant frames this argument

as a denial of his "right to present a defense."

      The defense that Appellant sought to present was that Helen had

fabricated the allegations against him as retaliation for his disapproval of her

desire to date an older boy. The juvenile court petition asserted that "[Helen]

will not obey the household rules, said juvenile has been communicating with

over 18 years old [sic]; social workers have been investigated [sic] said case and

requested that the family file beyond control." Appellant wanted to introduce

the report to corroborate his claim that the victim had, indeed, been dating an

older boy, thereby lending credence to his theory about her motive to lie about

being raped. There is no doubt that the petition is an out-of-court statement

that Appellant sought to use as evidence to prove the truth of the matters

asserted in the petition. The statement was clearly hearsay. KRE 801(c).

      Under the United States Constitution and the Kentucky Constitution, an

accused has a right to present a complete and meaningful defense.         Brown v.

Commonwealth, 313 S.W.3d 577, 624-25 (Ky., 2010). "An exclusion of evidence

will almost invariably be declared unconstitutional when it significantly

undermine[s] fundamental elements of the defendant's defense."       Beaty v.

Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003) (citation and internal

quotation omitted). But the right to present a defense does not abrogate the

rules of evidence. "[T]he defendant's interest in the challenged evidence must

be weighed against the interest the evidentiary rule is meant to serve, and only

if application of the rule would be arbitrary in the particular case or


                                         15
disproportionate to the state's legitimate interest must the rule bow to the

defendant's right." McPherson v. Commonwealth, 360 S.W.3d 207, 214 (Ky.

2012) (citations omitted); Newcomb v. Commonwealth, 410 S.W.3d 63, 85-86

(Ky. 2013).

       In weighing Appellant's evidentiary interest in the juvenile court pleading

against the jurisprudential interests served by the hearsay rule, we are

satisfied that the trial court's application of the hearsay rule was neither

arbitrary, nor was it disproportionate to the state's legitimate interest in the

enforcement of this most basic and fundamental rule of evidence. Moreover,

since the evidentiary content of the juvenile court document that Appellant

wanted to introduce consisted entirely of statements made by Helen's mother,

Appellant could have simply called her as a witness and examined her on the

subject, thereby obtaining the same evidence in a manner that was consistent

with, not in derogation of, our rules of evidence.

      In the alternative, Appellant now asserts for the first time, that the

evidence was admissible under the exception to the hearsay rule for business

and/or public records exception.    See Combs v. Stortz, 276 S.W.3d 282, 295

(Ky. App. 2009) ("KRE 803(6), (8), and (10) provide hearsay exceptions for

records which are maintained by businesses and public agencies. Those rules

require that minimal foundation be laid for the introduction of such records

when self-authenticated under KRE 902.")

      Appellant failed to assert this ground for admissibility at trial, and so

may not raise this theory for the first time on appeal.   See Kennedy v.


                                         16
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds

by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)).

   Moreover, Helen's brother testified that Helen had animosity toward

Appellant because of his opposition to her boyfriend, and that she had

threatened to have Appellant put in jail if she was not allowed to date.

Furthermore, a juvenile court worker testified that the beyond-parental-control

petition had been filed. Consequently, we are satisfied that Appellant was not

deprived of the opportunity to present his defense.


                VI. EVIDENCE OF APPELLANT'S PAST DRUG USE

      On direct examination, and not in response to the question posed by the

prosecutor, Helen spontaneously testified that she had on occasion purchased

illegal drugs for Appellant. Appellant objected and moved for a mistrial. The

trial court overruled the objection based upon the rationale that the

information was admissible under KRE 404(b)(2). As a follow up, Helen, was

then permitted to testify that Appellant used drugs every day.

      KRS 404(b) prohibits the admission of evidence of other crimes, wrongs,

or acts to prove the character of a person in order to show action in conformity

therewith. An exception to this general rule is codified in KRE 404(b)(2) such

that prior bad act evidence may be introduced if it is "so inextricably

intertwined with other evidence essential to the case that separation of the two

(2) could not be accomplished without serious adverse effect on the offering

party." As Professor Lawson points out, the words of KRE 404(b)(2)

("inextricably intertwined with other evidence essential to the case") "are

                                        17
designed to be flexible enough to permit the,state to present a complete and

realistic picture of the crime committed by the defendant, including necessary

context . . . and perspective." Robert G. Lawson, The Kentucky Evidence Law

Handbook, § 2.25[4][b] (4th ed. 2003).

      One of the accepted bases for the admissibility of evidence of other
      crimes arises when such evidence "furnishes part of the context of
      the crime" or is necessary to a "full presentation" of the case, or is
      so intimately connected with and explanatory of the crime charged
      against the defendant and is so much a part of the setting of the
      case and its "environment" that its proof is appropriate in order "to
      complete the story of the crime on trial by proving its immediate
      context [ 1."

Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994); see also Webb

v. Commonwealth, 387 S.W.3d 319 (Ky. 2012).

      The Commonwealth argues that the evidence was properly admitted

because its overall theory of the case was, that during the period when the rape

occurred Appellant exercised an extraordinary level of "domination and control"

over the victim and the rest of the household. In this vein other evidence was

elicited to the effect that Appellant had the windows of the home boarded;

would not allow the victim to leave the house; that the victim's brother usually

stayed away from the house; that Appellant beat the victim and Appellant's

mother; that the victim's mother would lie to social services about the beatings;

and that Appellant would go looking for her if she was delayed in returning

home from school. Thus, the trial court reasoned that having Helen buy drugs

was part and parcel to Appellant's "domination and control" over her during

the time of the sexual assault.



                                         18
      The standard of review for a trial court's evidentiary rulings is 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).

      Certainly there are situations in which a defendant's drug use is

inextricably intertwined with the crime, and thus is admissible under KRE

404(b)(2). But, this is not such a case. Helen's claim that Appellant used

drugs every day and that he would send her to buy drugs was not necessary for

a complete and realistic picture of the forcible rape, including any necessary

context and perspective for it. There is simply no other evidence linking

Appellant's drug use to the rapes. The Commonwealth's evidence of

Appellant's role in the household generally established his "domination and

control" over fourteen-year old Helen, and the evidence of his drug use did

nothing to further prove the point.

      At most, the drug evidence was only marginally relevant under KRE 401

and its probative value was substantially outweighed by the risk of undue

prejudice. KRE 403; Bell v. Commonwealth, 875 S.W.2d 882, 888-91 (Ky.

1994) (evidence of prior bad acts pursuant to KRE 404(b) should be excluded

even if relevant and probative if its probative value is substantially outweighed

by its prejudicial effect). Undue prejudice is most often found when there is a

risk that the evidence "might produce a decision grounded in emotion rather

than reason" or where the evidence "might be used for an improper purpose."


                                        19
Kentucky Evidence Law at § 2.15[3][b].        See, e.g., Purcell v. Commonwealth, 149

S.W.3d 382, 400 (Ky. 2004) 7 (although prior acts of sexual voyeurism were

relevant and probative, evidence should have been excluded because of its

devastating effect in that it encouraged conviction because of "what [defendant]

was, rather than what he did on the occasion of the charged offense."); Brown

v. Commonwealth, 313 S':W.3d 577, 618 (Ky. 2010) (evidence is unduly

prejudicial if it will induce the jury to decide a case based on an emotional

response rather than the evidence presented.).

        The trial court abused its discretion by allowing Helen's testimony of

Appellant's drug use to be admitted into evidence under KRE 404(b)(2).

Nevertheless, the presentation of the evidence was fleeting and was not

otherwise emphasized by the Commonwealth. Since it was not used as a

prosecutorial tool and did not tend to bolster the victim's version'of events nor

denigrate Appellant's denial, we are further persuaded that the error did not

substantially sway the verdict and was, therefore, harmless.        Winstead v.

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).


                                    VII. CONCLUSION

        For the foregoing reasons, the judgment of the Perry Circuit Court is

affirmed.

        All sitting. All concur.




        7   Overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky.
2010)

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COUNSEL FOR APPELLANT:

Karen Shuff Maurer
Assistant Public Advocate
Department Of Public Advocacy


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Taylor Allen Payne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General




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