RENDERED: AUGUST 24, 2017
TO BE PUBLISHED

Suprem`e Tuurt of Bentnckg

2016-sc-000427-DG
PHI`LLIP EDMONDSON APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. ' CASE NO. 2015-CA-001 198-MR
UNION CIRCUIT COURT NO. 14-CR-00032

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY J'USTICE CUNNINGHAM

REVERSING AND REMANDING

On the evening of January 11, 2014, eleven-year-old Jessica1 went to the
Sturgis Youth Center in Union County, Kentucky. Jessica was there with her
mother, who was facilitating the Youth Center’s concession stand. While
Jessica and another child were playing air hockey, Appellant, Phillip
Edmondson, offered a dollar ito Jessica if she lcould score a goal. Jessica
scored four separate goals during the game. Each time Appellant paid her the
reward, he grabbed her buttocks. Later in the evening, Appellant grabbed
Jessica’s buttocks once more when saying goodbye. Unable to Verbally

communicate the prior events,'Jessica created -a written note on her cell phone

 

1 A pseudonym is being used to protect the victim’s _anonymity.

describing Appellant’s inappropriate touching Jessica then showed the note to
her friend while the two were still at the Youth Center. Jessica’s friend told her
mother about the note, who in turn told Jessica’s mother. At that time,
Jessica’s mother contacted law enforcement A video from the Youth Center'
was collected and, according to law enforcement,2 corroborated Jessica’s
claims. o

Appellant was subsequently indicted by a Union Circuit Court grand jury
on a single count of first-degree sexual abuse. On June 22, 2015, Appellant
was convicted of the crime charged. In conformity with the jury’s_
recommendation, Appellant was sentenced to six years’ imprisonment Soon
thereafter, Appellant filed a motion for a new trial pursuant to Kentucky Rule
of Criminal Procedure (“RCr”) 10.02, which the trial court denied.' On July 22,
2016, the Court of Appeals affirmed the' trial court’sl judgment and sentence.
Appellant’s appeal now reaches this Court by way of discretionary review.

This Court granted discretionary review in order to address Appellant’s
claim that he was denied a fair and impartial jury due to Mark Danhauer, the
jury foreman, being the brother-in-law of an Assistant Commonwealth
Attorney, Mike Williamson. Originally, Mr. Williamson was assigned the case.
However, due to Mr. Williamson’s previous representation of Appellant, another

Commonwealth Attorney, J. Zachary Greenwell, prosecuted the case. Despite

 

2 While the video was played for the jury numerous times during the trial, the
video is not viewable from the trial record. Moreover,`the video was not provided in the

appellate record. -

the conflict, Mr. Williarnso`n assisted Mr. Greenwell during jury selection. Mr,

`Williarnson had no further involvement in Appellant’s prosecution. Subsequent
to Appellant’s conviction, but before his final sentencing, defense counsel
discovered Mr. Danhauer’s relationship to Mr. Williarnson. Appellant’s motion
for a new trial quickly followed.

Our review of Appellant’s claim requires a thorough recitation of the voir
dire proceeding As' voir dire began, the trial court commenced with conducting
preliminary examination of the venire panel. First, the trial judge prompted
members of the venire panel to approach the bench if they believed they could
not serve on the jury. At that time, numerous venire panelists who had a
familial relationship with the parties approached the bench. Of_.the venire
panelists Who approached', all but one, were excused for cause including, but
not limited to, ironically, Appellant’s brother-in`-law. Jessica’s aunt, and a n
relative of one of Jessica’s family members were also excused. The trial judge
continued her examination by explaining to the venire panel that, “A few folks
in that group were related or knew someone involved in the case.” She then
asked, “Is there anyone else in the audience that feels for some reason, some
pressing reason . .. . that has an issue with being here today?” Additional
venire panel members approached the bench and explained knowledge of the
situation. At no time did Mr. Danhauer approach the bench. The trial judge
also introduced Mr. Greenwell and asked if anyone was related to him, to
which Mr. Greenwell informed the court that his cousin was in the venire

panel. Mr. Greenwell’s cousin was then excused. Subsequently, Mr. Greenwell

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informed the trial court that his friend from college, Whorn he dated-twenty-f"ive
years prior, was also sitting on the panel. Again, neither Mr. Greenwell nor Mr.
Williarrison mentioned any relationship with lVlr. Danhauer.

After these preliminary questions were asked', the trial judge introduced
Mr. Williarnson to the venire panel and asked the'following question:

-Is anyone represented by Mr. Williamson, or have a relationship

that we’ve not been made aware of that might impair their ability

to be fair and impartial in this case? If you’ll come forward please_

If you feel that your relationship would prohibit you from being fair

and impartial

The taped recording of this portion of the record, which the Court has
carefully reviewed, focuses solely on the bench. There is no indication that
anyone, including Mr. Danhauer, had any reaction to this question. In fact,
the trial judge went on to her next question instantaneously, without any
pause or hesitation.

Later during voir dire, when Mr. Greenwell took over questioning, Mr.
Williamson was once again introduced to the venire panel. Mr. Williarnson’s
wife,3 who was sitting next to Mr. Willianison at the attorney’s table, was also
introduced to the venire panel. Again, Mr. Danhauer’s relationship to Mr.
Williamson was not disclosed to the Court.

On July 13, 2015, the trial court conducted a hearing on Appellant’s

motion for a new trial, during which Mr. Danhauer testified. Mr. Danhauer

 

3 Mr. Greenwell introduced Mr. Williarrison’s wife as “Li.nda Williamson”. A
Kentucky Bar Association search of “Linda Williamson” revealed no results. The Court
is unaware of Mrs. Williamson’s role in selecting the jury.

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Claimed that when the trial judge asked if anyone was related to Mr.
ilVilliamson, he raised his hand and stood up to make his way to the bench.
However, before Mr. Danhauer reached the bench he returned to his seat
because the trial judge qualified her question by stating that the relationship
would need to impede the juror’s ability to make an impartial and fair decision.
Consequently, Mr. Danhauer did not believe he was obligated to inform the 4
trial court about his familial relationship with Mr. Williamson because -he
assumed he could still be fair and impartial

Defense counsel argued that he had no recollection of Mr. Danhauer . _
making any affirmative acknowledgment following the trial judge’s question.

d l Defense counsel maintained that had he known about the relationship, he
would have asked the trial court to remove Mr. Danhauer for cause, or at the
very least placed the matter on the record. Defense counsel also provided the
trial court with numerous cases where a new trial was granted when the juror
falsely answered`questions, or concealed information regarding a relationship .
with a party.

At the conclusion of the hearing, the trial court denied Appellant’s
motion. '_I`he_ trial judge admitted that she had not had an'opportunity to
review the record. Nonetheless, from her memory, she remembered Mr.

. Danhauer standing up to approach the bench following her question regarding
Mr. Williamson. As the trial judge further explained, she recalled a number of
people, including Mr. Danhauer, raising their hand when asked if'they had a

relationship with _Mr. Williamson. Yet, defense counsel failed to follow~up with

any of these potential jurors. Ultimately, the trial court denied Appellant’s
motion since Mr. Danhauer had not given any false answers during his voir
dire examination

The Court of Appeals agreed with trial court and stated the following:

Danhauer tried to disclose his relationship with Williamson.

Neither_ party explored his reason for initiallyraisirig his hand and

beginning to approach the bench. Furthermore, Danhauer was not

the only potential juror to acknowledge having a relationship with

Williamson; none of those relationships was explored. The failure

to do so rests squarely with the parties, not with the prospective

juror and not with the trial court.

(Ern`phasis in original).

We begin our analysis by discussing the trial court and Court of Appeals’
underlying and faulty conclusion that Mr. Danhauer_-and other panelists_
disclosed a relationship, or at the very least made affirmative acknowledgments
of such.

As we have already stated, when the trial judge asked if anyone on the
venire panel had a relationship with Mr. Williamson, the only individual visible
on the recording is the trial judge. She presented her question continuously
without any pauses or hesitations,`indicating that the venire panel had rio
reactions. lndeed, the recording supports the conclusion th'at the venire panel
remained silent If Mr. Danhauer and other panelists made affirmative
gestures, there is absolutely no indication of such on the record. Practically
speaking, since it appears the qualifying sentence of the judge was stated

within almost the same breath, it is unlikely Mr. Danhauer could have

physically reacted that quickly-e.g., get up from his seat, start to move from

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the box, retreat, and sit down. Furtlierrnore, it stands to reason that the trial
judge would have, at the very least, paused or questioned those prospective
jurors further if such acknowledgements-were made. She had done so with
virtually every other juror who previously indicated a relationship with the
parties.

Moreover, we find defense counsel’s contention that he had no
recollection of Mr. Danhauer making an affirmative gesture compelling
Defense counsel moved to strike numerous venire panelists who had
relationships with the parties which were far less vulnerable to bias than Mr.
Danhauer. Yet, during the several questions relating to relationships with the
Commonwealth Attorneys, Mr. Danhauer was never identified or questioned.
Thusly, the actions of the trial judge and defense counsel greatly undermine
the conclusion that defense counsel was made aware that Mr. Danhauer had a
relationship with Mr. Williamson.

We now turn to the merits of Appellant’s claim. In reviewing the trial-
court’s denial of Appellant’s motion for a new `trial, we look for an abuse of -
discretion. See Anderson i). Commonwealth 63,S.W.3d 135, _141 (Ky. 2001).
Accordingly, this Court must determine if the trial court’s ruling was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Since Appellant
did not move to strike Mr. Danhauer for cause, his grounds for a new trial were
made under a juror mendacity analysis. Under this standard, a new trial may

be granted upon a showing “that a juror failed~to answer honestly a material

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question on voir dire, and then further show that a correct response would
have provided a valid basis for a challenge for cause.”_ Adki'ns v. .
Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (quoting McDonough Power
Equi'p., Inc. v. Greenwood, 464 U.S. 548 (1984)); see also Anderson v.
Commonwealth, 864 S.W.2d 909, 911 (Ky. 1993] (reversing when juror
_ “concealed vital information on voir dire, information which may have justified
a challenge for cause in and of itself `on grounds of implied bias.”). This Court
agrees with the trial court’s conclusion that Appellant’s claim'fails under the
first prong of the juror mendacity analysis. There has been no proof that Mr.
Danhauer purposefully concealed his relationship with Mr. Williamson or that
he failed to answer the voir dire questions honestly. As our thorough recitation
of voir dire questioning demonstrates, Mr. Danhauer evidently believed his
obligation to reveal his relationship to Mr. Williamson to the court was obviated
by his personal belief that he could decide the case fairly. His belief is
reasonable in light of the juror’s inexperience and_the questions posed by the
trial judge.

v Despite our finding that the juror mendacity analysis fails, we believe
Appellant is entitled to relief pursuant to RCr 10.26. lt is apparent'to this
Court that Appellant’s fundamental right to a fair and impartial jury was
violated. The right to a fair and impartial jury is guaranteed by Section Ele‘ven
of our Kentucky Constitution, as well as the Sixth and Fourteenth `
Amendments to the Constitution of the United States. Ordway v.

Commonwealth 391 -S.W.3d 762, 780_(Ky. 2013) (citing Fugett i).

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Commonii)ealth, 250 S.W.Sd 604, 612 (Ky. 2008)). Providing a criminal
defendant with a jury that is able to “render a fair and impartial verdict” is of
utmost importance7 Id. at 781. ln order to protect this right, RCr 9.36(1)
mandates that “[w]hen there is reasonable ground to believe that a prospective
juror cannot render a fair and impartial verdict on the evidence, that juror
shall be excused as not qualified.” ln fact, this Court has instructed trial
courts, as a “fundamental rule” of jury selection, to “err on the side of caution”
by striking potential jurors who display uncertainty regarding impartiality. Id.
eirso.

ln regards to juror relationships with the parties, this Court has
identified numerous relationships where bias may be implied despite the
juror’s ability to remain impartial Ward v. Commonwealth, 695 S.W.2d 404,
407 (Ky. 1985) (quoting Commonwealth v. Stamm, 429 A.2d 4, 7 (1981))
(“[l]rrespective of the answers given on voir dire, the court should presume the
likelihood of prejudice on the part of the prospective juror [when] the potential
juror has such a close relationship, be it familial, financial or situational, with
any of the parties, counsel, victims or witnesses._”). This bias often stems “from
the juror's having some personal reason, such as a relationship with a trial
participant or personal experience of a crime like the one alleged, to lean one
way or the other.” `Futrell v. Commonwealth 471 S.W.3d 258, 272 (Ky. 2015)
(erting _Gebberd_e. commonwealth 297 s.w.ad er 844 (Ky. 2009). when these
close relationships are identified, the juror should be excused for cause since

he or she is “so susceptible to the relationship as~to be predisposed to be more

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(or less) critical of one side's evidence than the other's.” Futre_ll_, 471 S.W.3d at
272.

Furtherrnore, this Court has long held that.a potential juror‘s close
relationship with the prosecutor is presumptively disqualifying See, e.g.,
Fugate v. Commonwealth 993 S.W.2d 931, 938 (Ky. 1999) (holding that .“a trial
court is required to" disqualify for cause prospective jurors who had a prior
professional relationship with a prosecuting attorney and who profess that they
would seek such a relationship in the future.”). ln the case before us, we have
an established relationship where bias must be presumed. Ward, 695 S.W.2d
404 (b_ias is presumed where juror is prosecutor’s uncle). lt is a very
bothersome likelihood that Mr. Danhauer, either knowingly or subconsciously,
gave more weight to the evidence presented by the Commonwealth. `This is
_ easily a situation wherein the familial relationship is “so apt to produce bias
that even confident assurances to the'contrary by the juror cannot erase
significant doubts about his impartiality.” Futrell, 471 S.W.Sd at 274. Thusly,
Mr. Danhauer was.not qualified to sit on the jury panel and, had the
relationship been exposed, he would have been removed for cause, Since
Appellant never had the opportunity to challenge Mr. Danhauer’s presence on
the jury,'he is entitled to a new trial.

The purpose of voir dire “is to determine whether a juror possesses
necessary qualifications, whether he has prejudged the case, and whether_his '
. mind is free from prejudice or bias, so as to enable a party to ascertain whether

cause for challenge exists and _to ascertain whether it is expedient to exercise

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the right of peremptory challenge.” Si'zemore v. Commonwealth, 306 S.W.2d
832, 834 (Ky. 1957). Our predecessor Court aptly explained this principle in v
Drwy o. laronlee, 57 s.W.2d 969, 984 (Ky. 1933), wherein n veniremen
remained silent when questioned about a relationship with a party. The Court
stated the following: n l

When the right of challenge is lost or impaired, the statutory

conditions and terms for setting up an authorized jury are not met; '

the right to challenge a given number of jurors without showing

cause is one of the most important rights to a litigant; any system

for the empaneling of a jury that prevents or embarrasses the full,

unrestricted exercise of the right of challenge must be condemned

In the case before us, the actions of the trial judge, defense counsel, and
the Commonwealth, all contributed to this constitutional error.- As for the trial
judge, a critical error occurred when she compounded her questions sonas to
only obtain affirmative answers if the juror believed he or she was unable tol
deoicie the ease impartially in doing eo, Mr. Danhauer believed he wee
qualified to sit on the jury and riot disclose the relationship, Yet, it is the trial
court’s evaluation, not Mr. Danhauer’s, that determines if the proneness to
bias impedes the ability to serve.

We also note that defense counsel had a responsibility to uncover the
relationship through his own questioningl lt is likely that the relationship
would have been discovered through follow-up questioning had defense counsel '
realized that the trial judge’s questions were inadequate and confusing to the
jurors.' However, it is Mr. Williamson’s silence that troubles this Court the

most. As an Assistant Commonwealth Attorney, Mr. Williamson should have

been aware of the constitutional concerns that arise from having his brother-
` ` i i '

in-law serve on the jury. Mr. Williamson witnessed Mr. Greenwell voluntarily
disclose to the trial court the relationships he had with numerous jurors,
including a cousin and ~a friend that he had not seen in over twenty-five years.
Mr. Williamson witnessed these disclosures, yet declined to volunteer.
information-concerning the relationship he had with Mr. Danhauer despite
countless opportunities Such a concealment is_ in direct odds with our
principles of justice. As the Sixth Circuit cautioned, “there is a degree of
candor necessary for effective disposition of cases in [the trial] [c]ourt[s] that
counsel owes as an officer of the court. . . . failure in this regard suggests bad
ioiih.”. cunningham o. seore, Roebnok a co., 854 F.:zd 914, 916 loih cir 1988)
(attorney failed to inform the court that his witness knew one of the jurors). In
this situation, where reasonable steps to uncover juror relationships with the
parties were unsuccessful, Mr. Williamson should have been forthcoming with
the trial court that his brother-in-law sat in the.venire panel.
life should also mention that this Court has seen no evidence that there
was anything but a normal relationship between these two brothers-in-law. In
- other words, there was no estrangement or fissure in the relationship that
would have minimized or diminished the closeness of such kinship.
For the above-stated reasons, we find that Appellant was denied his
constitutional right to a fair and impartial jury. Such a denial seriously
affected “the fairness, integrity, [and] public reputation of the proceeding.”

McGuire v. Commonwealth 368 S.W.3d 100, 112 (Ky. 2012) (quoting Martin v.

!

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Commonwealth 207 S.W.3d 1, 3 (Ky.2‘006)). Consequently, Appellant is
entitled to a new trial. -

Having determined that reversible error occurred, we will now address
those claims of error that may reoccur upon'a new trial.

Appellant alleges that prosecutorial misconduct ensued twice during
closing arguments The first statement at issue occurred when the prosecutor
analogized Jessica’s actions after the abuse, including her failure to
immediately come forward with the allegations, to that of victims of molestation
by Catholic priests. More specifically, the prosecutor said, “Why didn’t she
jump up and down and scream at the top of her lungs immediately after these
things happened? l wish l had an answer for these questions, but you know,
with the priest case[s] in the Catholic Church, it took years for those kids to
come forward, they still went to Mass every Sunday.” Appellant objected to the
Commonwealth’s remark and requested an admo-nition, which was summarily
denied.

As this Court has previously held, a prosecutor “may comment on
evidence, and may comment as to the falsity of a defense position.” `Slaughter
v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). The Commonwealth’s
short and isolated reference was made to rebut Appellant’s inference that
Jessica must have fabricated the allegations due to her subsequent behavior.
We do not find reversible error, but caution both Appellant and the
_ Commonwealth to avoid commenting on matters outside the record upon l

retrial.

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Appellant’s second complaint of prosecutorial misconduct occurred when -
the Commonwealth stated that surveillance video showed Jessica writing a
message on her cell phone regarding Appellant’s actions. Appellant claims that
the Commonwealth’s statement was unsupported by the record. We have
reviewed the evidence and agree with the trial judge that the Commonwealth’s
remark was a reasonable inference based on totality of the evidence. See
Commonwealth v. .Mi`tchell, 165 S.W.3d 129, 131-32 V(Ky. 2005). The
Commonwealth’s comment was within the bounds of proper closing arguments

Lastly, as me.issue will certainly resurface on retrial, we will address
Appellant’s argument that proof lof sexual gratification is required to support a
sexual abuse conviction. This issue was preserved by way of Appellant’s
motion for a directed verdict

The Court will reverse a denial of a motion for a directed verdict “if under
the evidence as a whole, it would be clearly unreasonable for a jury to find guilt

. .” commonwealth o. Bennom, 816 s.w.zo 186, 187 (Ky. 199 i) (oin‘ng

Commonwealth v. Sawhi'll, 660 S.W.2d 3 (Ky. 1983)). Sexual abuse in the first
degree is proscribed in Kentucky Revised Statute (“KRS”) 510.110. The statute
states, in pertinent part, that first-degree sexual abuse occurs when the
defendant subjects a child, less than twelve years-old, to sexual contact. KRS
510.010 defines “sexual contact” as any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying the sexual desire

_of either party. Appellant posits that he Was entitled to a directed verdict of '

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acquittal because there was no proof that he or Jessica derived sexual
gratification from the act. Appellant’s argument has no merit.

In Anastasi' v. Commonwealth 754 S.W.2d 860, 862 (Ky. 1988), it was
held that “[i]ntent can be inferred from the actions of an accused and the
surrounding circumstances.” For that reason, “[t]he jury has wide latitude in
inferring intent from the evidence. Id.; see also, fl‘ungate v. Commonwealth 901
S.W.2d 41, 42 (Ky. 1995). Jessica testified that Appellant showed unrelenting
interest in her, commented on her femininity, and stared at her throughout the
night in question. In addition, Jessica testified that Appellant grabbed her
buttocks on numerous occasions. Thusly, it was not clearly unreasonable for
the jury to find beyond a reasonable doubt that Appellant’s touching of Jessica
was done for the purpose of sexual gratification.

. For the_ aforementioned, we hereby reverse the Union Circuit Court’s
judgment of conviction and sentence and remand this case for further
l proceedings consistent with this opinion.

All sitting. All concur.

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COUNSEL F(_)R APPELLANT:
Dax Ryan Womack
WOMACK LAW OFFICE, LLC
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Leilani K.M. Martin
Assistant Attorney General

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