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                                  2016-SC-000427-DG


PHILLIP EDMONDSON                                                        APPELLANT


                       ON REVIEW FROM COURT OF APPEALS
V.                       · CASE NO. 2015-CA-001198-MR
                      UNION CIRCUIT COURT NO. 14-CR-00032


COMMONWEALTH OF KENTUCKY                                                 APPELLEE


               OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                           REVERSING AND REMANDING


      On the evening of January 11, 2014, eleven-year-old Jessica 1 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 to Jessica if she could 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 mqther contacted law enforcement. A video from the Youth Center

was collected and, according to law enforcement,2 corroborated Jessica's

claims.

       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   amotion 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'sjudgment 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.

                                           2
'the conflict, Mr. Williamson assisted Mr. Greenwell during jury selection. Mr.

· Williamson 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 i:o Mr. Williamson. 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 approac~ 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

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

                                        3
informed the trial court that his friend from college, whom he dated twenty-five

years prior, was also sitting on the panel. Again, neither Mr. Greenwell nor Mr.

Williamson mentioned any relationship with Mr. Danhauer.

       After these preliminary questions were asked, the trial judge introduced

Mr. Williamson 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 trialjudg~ 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. Williamson's

wife,3 who was sitting next to Mr. Williamson 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




      3Mr. Greenwell introduced Mr. Williamson's wife as "Linda 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.

                                         4
claimed that when the trial judge asked if anyone was related to Mr.

Williamson, 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 trialjudge 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

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 tri?l judge's question.

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. The trial judge admitted that she liad 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

                                       5
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

cl.ire 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 initially raising 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.

(Emphasis 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 no

reactions. Indeed, the recording supports the conclusion that the venire panel

remained silent. If Mr. Danhauer and other panelists made affirmative

gestures, there is E!-bsolutely 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

                                         6
the box, retreat, and sit down. Furthermore, 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 v. 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

                                        7
question on voir dire, and then further show that a correct response would

have provided a valid basis for a challenge for cause."_ Adkins v.

Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (quoting McDonough Power

Equip., 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 itselfon 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.

      Despite our finding that the juror mendacity analysis fails, we believe

Appellant is entitled to relief pursuant to RCr 10.26. It 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 Eleven

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 v.

                                        8
Commonwealth, 250 S.W.3d 604, 612 (Ky. 2008)). Providing a criminal

defendant with a jury that is able to "render a fair and impartial verdict" is of

utmost importance. Id. at 781. In 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." In 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.

at 780.

      In 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)}

("[I]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, counsei, 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)

(citing Gabbard v. Commonwealth, 297 S.W.3d at 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

                                         9
(or less) critical of one side's evidence .than the other's." Futrell, 471 S.W.3d at

272.

       Furthermore, 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."). In the case before us, we have

an established relationship where bias must be presumed. Ward, 695 S.W.2d

404 (bias is presumed where juror is prosecutor's uncle). It 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.3d 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, wh~ther 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

                                           10
the right of peremptory challenge." Sizemore v. Commonwealth, 306 S.W.2d

832, 834 (Ky. 1957). Our predecessor Court aptly explained this principle in

Drury v. Franke, 57 S.W.2d 969, 984 (Ky. 1933), wherein a venireman

remained silent when questioned about a relationship with a party. The Court

stated the following:

      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 tlie 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 so as to

only obtain affirmative answers if the juror believed he or she was unable to

decide the case impartially. In doing so, Mr. Danhauer believed he was

qualified to sit on the jury and not 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 questioning. It 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-
                                         11
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

faith.". Cunningham v. Sears, Roebuck & Co., 854 F.2d 914, 916 (6th Cir 1988)

(attorney failed to inform the court that hi~ 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.

      We 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.
                                                                   I



                                         12
Commonwealth, 207 S.W.3d 1, 3 (Ky.2006)). 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

immedi~tely 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? I wish I 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 admonition, 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

u. 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

retrial.

                                          13
       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. Mitchell, 165 S.W.3d 129, 131-32 (Ky. 2005). The

Commonwealth's comment was within the bounds of.proper closing arguments.

      Lastly, as the issue will certainly resurface on retrial, we will address

Appellant's argument that proofof 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 v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing

Commonwealth v. Sawhill, 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



                                        14
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 o_f an accused and the

surrounding circumstances." For that reason, "[t]he jury has wide latitude in

inferring intent from the evidence. /d.; see also, Tungate 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 additioi;i, 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

proceedings consistent with this opinion.

      All sitting. All concur.




                                        15
COUNSEL FOR 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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