         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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                                                         RENDERED: MAY 5, 2016
                                                           NOT TO BE PUBLISHED

               oi5uprrntr          Courf 7,fintfuritv
                               2015-SC-000388-MR


JAMES DEE LANHAM                                                         APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE OLU ALFREDO STEVENS, JUDGE
                             NO. 12-CR-2979


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

       Between the dates of January 15, 2012, through September 8, 2012, the

Appellant, James Dee Lanham committed a series of sexual assaults and other

sex crimes against three minor girls. The majority of the crimes involved a

young girl named Amy,' who was less than twelve years old when the crimes

occurred. The other two victims, Heather and Elizabeth, were less than sixteen

years old at the time of the crimes. Another minor girl, Katie, testified at trial

as having witnessed sexual acts between Lanham and Amy. She was

seventeen at the time she testified.

       After Lanham was arrested and indicted, his home was searched,

revealing several items of evidence that will be discussed as necessary.


             Pseudonyms are being used to protect the anonymity of all the child
victims.
      A Jefferson Circuit Court jury convicted Lanham on four counts of rape,

two counts of sodomy, five counts of promoting sexual performance by a minor,

four counts of first-degree sexual abuse, and three counts of distribution of

obscene matter to minors. The jury acquitted Lanham on one count of

distribution of obscene matter to minor that involved Katie.

      The jury recommended a sentence of 30 years' imprisonment for each

rape conviction, 30 years for each sodomy conviction, 15 years for each

promoting sexual performance by a minor conviction, seven years for each

first-degree sexual abuse conviction, and three years for each distribution

conviction. The jury further recommended that the sentences involving crimes

against Amy shall run concurrently with each other, for a total sentence of 30

years. It also recommended that the sentences involving crimes against

Heather shall run concurrently with each other for a total sentence of 15 years.

The sentences involving crimes against Elizabeth were recommended to run

concurrently with each other for a total sentence of 15 years. The sentences

against each of the three victims were to run consecutively for a total sentence

of 60 years' imprisonment. The trial court accepted the jury's

recommendation. Lanham now appeals his judgment and sentence as a matter

of right pursuant to § 110(2)(b) of the Kentucky Constitution. Five issues are

raised and addressed as follows.

                               Missing Evidence

      One of the items of evidence discovered by police at Lanham's home was

a miniature baseball bat that Amy claims was used by Lanham to vaginally
penetrate her. She testified that the bat was "medium sized" and held her

hands out slightly wider than her shoulders. The Commonwealth presented a

picture of the bat to the jury but could not produce the actual bat itself.

Lanham argues that he was entitled to a missing evidence instruction and that

the Commonwealth's failure to introduce the bat into evidence violated his right

to due process. More specifically, he contends that due to the bat's size and

lack of blood, as well as the absence of any internal injuries to Amy, the bat

was relevant to Amy's credibility. According to Lanham, "[t]he entire case

rested on the credibility of the girls, and mainly that of [Amy]."

Due Process

      "In order to establish a due process violation, the evidence must either be

intentionally destroyed, or destroyed inadvertently outside normal practices."

Tamme v. Commonwealth, 759 S.W.2d 51, 54 (Ky. 1988). "Furthermore, the

lost evidence must 'possess an exculpatory value that was apparent before it

was destroyed."' Id. (citing California v. Trombetta, 467 U.S. 479, 489 (1984)).

The photograph of the bat that was presented to the jury contained a

measuring device that was situated alongside the bat in order to demonstrate

scale. However, the units of measure are difficult to discern from that photo.

During deliberations, the jury posed the question: "how many centimeters are

in one inch?" Lanham claims that this is a clear indication that the jury was

confused as to the bat's dimensions. The court responded to the jury: "you

have all the evidence that you are going to receive in this matter."




                                         3
      Lanham also cites the trial testimony of Dr. Lisa Fitzer, who testified at

trial concerning her sexual assault examination of Amy. Dr. Fitzer testified

that Amy had a "normal exam." In response to questioning by defense counsel,

however, Dr. Fitzer also testified that she would not necessarily expect to see

physical signs that the bat was inserted into Amy's vagina. It is also

noteworthy that Amy's examination occurred almost one month after the

allegation of sexual abuse. In referencing female child patients generally, Dr.

Fitzer testified that "time passes, the body heals, and [the patients] usually

look pretty good on the exam." Forensic evidence was also introduced

indicating that the bat contained Amy and Lanham's DNA.

      During a hearing on the missing evidence issue, which occurred during

trial, the Commonwealth introduced the testimony of Abigail Freedman. M

Freedman is the civilian supervisor of the Louisville Metro Police Department

("LMPD") property room. She testified that the bat and two cigar tubes were

logged into the property room and were not logged out. Ms. Freedman further

testified that all three of those items, the bat and two cigar tubes, were in the

property room but could not be located. Like the miniature bat, the evidence

presented at trial indicated that Lanham used a cigar tube to penetrate Amy

vaginally. One of his rape convictions involved the bat and another involved

the cigar tubes.

      Although the failure of the LMPD and the Commonwealth to ascertain

the location of the bat may have been negligent, Lanham has failed to provide

any evidence that the bat was "intentionally destroyed, or
destroyed inadvertently outside normal practices."    Tamme, 759 S.W.2d at 54

(citation omitted). Moreover, Lanham has failed to present convincing evidence

that the bat possessed "exculpatory value that was apparent before it was

destroyed[,]" or in this case, misplaced. Id. See also Swan v. Commonwealth,

384 S.W.3d 77, 90 (Ky. 2012) ("Speculation is not exculpation as required by

Tamme and Trombetta . . ."). As previously stated, the Commonwealth

presented evidence that the bat contained Amy and Lanham's DNA. Of

course, this proof is not exculpatory.

      Furthermore, the two cigar tubes were also missing from the physical

evidence that was presented to the jury. Yet, Lanham did not take issue with

the absence of those items. Therefore, the jury was presented with additional

evidence that the bat was used in the manner in which Amy testified, and that

items other than the bat were also used in a similar manner. Both of these

facts would have bolstered Amy's credibility regarding her testimony that

Lanham used the bat to penetrate her in a sexual manner. There was no due

process violation here.

Missing Evidence Instruction

      Similar to our preceding due process analysis, any negligence or

inadvertence on the part of the Commonwealth or the LMPD negates a finding

of bad faith. Ordway v. Commonwealth, 391 S.W.3d 762, 793 (Ky. 2013)

("[w]hen it is established that the evidence was lost due to mere negligence or

inadvertence, which, in effect, negates a finding of bad faith, the missing

instruction should not be given.") (citations omitted). Lanham has failed to


                                         5
present evidence that the alleged omissions of the Commonwealth and/or the

LMPD in failing to present the bat at trial were intentional or done in bad faith.

Nor does his unsupported claim of "extreme negligence" satisfy this standard.

Therefore, a missing evidence instruction was not warranted.

                          ,   Fifth Amendment Claim

      For his next assignment of error, Lanham raises two alleged violations of

his right not to testify against himself that is preserved by the Fifth

Amendment of the federal constitution„ as well as Kentucky law. KRS 421.225.

First, he claims that, during voir dire, the prosecutor impermissibly referenced

the possibility that Lanham may choose not to testify during trial. He also

asserts that the jury instructions impermissibly commented on his right not to

testify against himself by drawing undue attention to that issue.

Voir Dire

      During voir dire, the prosecutor informed the venire panel that "if the

defendant decides not to testify you can't consider it." She then asked the

panel if everyone understood and agreed that "it's ok if he doesn't testify."

Lanham's trial counsel moved to discharge the panel, which the court denied.

Lanham does not develop his argument here beyond a facial claim that the

prosecutor's statements constituted error.    However, there was no error here.

It is permissible and, in fact, common for defense counsel to ask these types of

question during voir dire. And if defense counsel is permitted to ask these

questions, then so can the Commonwealth.




                                         6
Jury Instruction

       Lanham requested at trial that the court not instruct the jury on his Fifth

Amendment right against self-incrimination, and that failure to testify cannot

be construed as a presumption of guilt. In support, he cites RCr 9.54(3), which

provides:

      The instructions shall not make any reference to a defendant's
      failure to testify unless so requested by the defendant, in which
      event the court shall give an instruction to the effect that a
      defendant is not compelled to testify and that the jury shall not
      draw any inference of guilt from the defendant's election not to
      testify and shall not allow it to prejudice the defendant in any way.

It appears that Lanham's request not to include the instruction was based on

the prosecutor's previous statement concerning Lanham's decision not to

testify, which, at the time was merely hypothetical. Lanham asserts that his

reasoning for requesting that the court omit this instruction was a strategic

decision not to draw attention to the prosecutor's statement. The trial court

denied Lanham's request and the jury was presented with the contested

instruction.

      As Lanham correctly observes, this Court has previously acknowledged

that it can be a valid trial strategy not to instruct the jury on the defendant's

Fifth Amendment right not to testify. Thornton v. Commonwealth, 421 S.W.3d

372, 377 (Ky. 2013). In that case, the appellant argued that "manifest injustice

occurred because the trial court failed to sua sponte instruct the jury

concerning a defendant's right not to testify during the penalty phase of the

trial." Id. We held that appellant was not entitled to palpable error review of



                                         7
that issue. Id. Unlike Thornton, however, the issue in the present case was

properly preserved, meaning that the court denied Lanham's explicit request

that the instruction be omitted. Thus, we must now decide as a matter of first

impression whether the court's denial of Lanham's request was error, and

whether such error requires reversal.

      In Sargent v. Shaffer, we held that "a trial court's decision on whether to

instruct on a specific claim will be reviewed for abuse of discretion; the

substantive content of the jury instructions will be reviewed de novo." 467

S.W.3d 198, 204 (Ky. 2015). Here, the issue is whether the trial court erred in

authorizing a specific instruction. Thus, we will review for an abuse of

discretion. RCr 9.54(3) is clear: "[t]he instructions shall not make any

reference to a defendant's failure to testify unless so requested by the

defendant . . . ." While some ambiguity may exist where a defendant fails, for

whatever reason, to request the instruction, no such instruction shall be given

when a defendant unequivocally requests that the instruction be omitted.

Although the trial court likely had the best interests of Lanham in mind when

it declined Lanham's request to omit the contested instruction, the court

nevertheless abused its discretion under our rules of criminal procedure. The

issue now turns to the impact of this error on the judgment.

      Before we address whether the error here was harmless, we must first

address Lanham's claim that the trial court violated the Fifth and Fourteenth

Amendments to the U.S. Constitution. If so, then we must determine whether




                                         8
the error was harmless beyond a reasonable doubt.      Chapman v.

California, 386 U.S. 18, 23 (1967).

      When faced with an identical issue, the U.S. Supreme Court held that

"the giving of such an instruction over the defendant's objection does not

violate the privilege against compulsory self-incrimination guaranteed by the

Fifth and Fourteenth Amendments." Lakeside v, Oregon, 435 U.S. 333, 340-41

(1978). Therefore, there is no violation of the federal constitution here. We will

proceed to determine whether the trial court's error was harmless. RCr 9.24.

      There was extensive testimonial and forensic evidence presented by the

Commonwealth in support of its case. This included testimony from the

victims. Moreover, the only real "error" here was the trial court's insistence

that the jury be instructed not to prejudice Lanham for not testifying. There is

no way that the judgment was substantially swayed by this error.     Winstead v.

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). Thus, the trial court's

instruction to the jury concerning Lanham's Fifth Amendment right not to

testify was harmless.

                                      Mistrial

      Lanham also argues that a mistrial was required when the prosecutor

impermissibly attempted to define "reasonable doubt" during closing

arguments. Slide shows accompanied the prosecutor's oral argument to the

jury at closing. One slide was entitled "Reasonable Doubt." Another slide was

entitled "Proof Beyond a Reasonable Doubt" and contained the following

question: "Ask yourself: Do you believe he did it?" That slide also provided


                                         9
that "Proof does not need to eliminate all possible or imaginary doubt." The

prosecutor elaborated as follows: "But you do have to ask yourself, do I believe

that this happened? It does not need to eliminate all possible doubt or

imaginary doubt. It is not beyond a shadow of a doubt, or 100% sure."

        Defense counsel objected to the prosecutor's comments and moved that

the panel be discharged. The court denied the motion, sustained the objection

defining reasonable doubt, and instructed the prosecutor to "move on from this

slide." We will review his motion to "discharge the panel" as a motion for

mistrial.

        We must determine whether there was manifest necessity for a mistrial,

and specifically whether the alleged error here "prejudice[d] [Lanham's] right to

a fair trial." Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997) (citations

omitted). It is also critical to note that "a finding of manifest necessity is a

matter left to the sound discretion of the trial court."   Commonwealth v. Scott,

12 S.W.3d 682, 684 (Ky. 2000). The trial court did not abuse its discretion

here.

        In support of his argument, Lanham cites Rodgers v. Commonwealth,

314 S.W.3d 745 (Ky. App. 2010). In that case, the Court of Appeals determined

that the prosecutor's closing argument regarding reasonable doubt was

inappropriate and required reversal, where the prosecutor told the jury that

"[I]f you know he did it, then this case was proven." Id. at 748. However, the

court also noted in Rodgers that "[o]ver time, our courts have narrowly refined

the rule to construe as harmless error a statement that reasonable doubt does


                                         10
not mean 'beyond all doubt."' Id. at 748 (citing Johnson v. Commonwealth, 184

S.W.3d 544, 550-51 (Ky. 2005)). Unlike the present case, however, the Court

of Appeals reversed in Rodgers because, "the Commonwealth bodaciously

exceeded the Johnson limit that reasonable doubt does not mean beyond all

doubt[.]" Id. The prosecutor's statements here were far from "bodacious." In

fact, the comments at issue in the present case comport with the Johnson

limitation. See also, Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky.

2007); Rogers v. Commonwealth, 315 S.W.3d 303, 308 (Ky. 2010).

                 Improper Testimony and Closing Argument

      Lanham argues that the trial court erred by allowing impermissible

testimony concerning child sexual abuse syndrome. This issue is unpreserved.

Therefore, we will review for palpable error. RCr 10.26; McCleery v.

Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we will not reverse unless "it

can be determined that manifest injustice, i.e., a repugnant and intolerable

outcome, resulted from that error.").

      During direct examination, the Commonwealth questioned LMPD

Detective Jennifer Boyer as follows: "In your experience as a crimes against

children detective, is it more common to have delayed disclosure cases or fresh

cases?" As previously stated, she responded that it is more common to have

delayed cases. The prosecutor also referenced Det. Boyer's testimony during

the Commonwealth's closing argument. The prosecutor stated as follows:

      We heard from the detective, Detective Boyer, who has been a
      crimes against children unit detective for three years, that a
      delayed disclosure case is the norm in her unit. That's because


                                        11
       these children are normal. They believe they would get in trouble.
       They felt shame because of what they had done. And frankly that's
       why people prey on children.

Lanham correctly notes that we have previously held that using testimony

regarding the symptoms of child sexual abuse syndrome, even without

referring directly to the syndrome, is an impermissible way , to bolster the

prosecution's case. Blount v. Commonwealth, 392 S.W.3d 393, 396 (Ky. 2013).

However, Lanham cites no authority from this Court that has held such errors

to be palpable.

      We recently addressed a similar issue in King v. Commonwealth, 472

S.W.3d 523, 527 (Ky. 2015). That case involved the trial court's admission of a

police detective's testimony wherein he stated that the victim's delay in

reporting the sexual abuse was not unusual because, in her experience with

more than 1,500 cases, it was "very rare" for children to immediately report

sexual abuse. Id. at 527. We held that, while obviously erroneous, the

detective's testimony did not result in manifest injustice. Id at 528.

      Having reviewed the relevant portions of Detective Boyer's testimony, we

find no palpable error here. And while the contested statements made during

the Commonwealth's closing argument may have been error, we cannot

conclude that such error did not create the "probability of a different result or

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

law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). There was

extensive testimonial and forensic evidence presented by the Commonwealth in




                                        12
support of its case. This included testimony from the victims. There was no

palpable error here.

                               Cumulative Error

      Lastly, Lanham argues that his conviction should be reversed on the

basis of cumulative error. Under this limited doctrine, we will reverse only

when the "individual errors were themselves substantial, bordering, at least, on

the prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).

Here, there is "insufficient harmless error to create a cumulative effect which

would mandate reversal for a new trial." Tamme v. Commonwealth, 973 S.W.2d

13, 40 (Ky. 1998).

                                   Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Jefferson

Circuit Court.

      All sitting. Minton, C.J.; Cunningham, Keller, and Wright, JJ., concur.

Hughes, Noble, and Venters, JJ., concur in result only.



COUNSEL FOR APPELLANT:

David Lambertus

Tricia Frances Lister


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Thomas Allen Van De Rostyne
Assistant Attorney General
                                        13
