Cecil Salyers v. Commonwealth of Kentucky

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NOT TO BE PUBLISHED OPINION

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ED FOR CONSIDERATION
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 RENDERED: MAY 14, 2015
NOT TO BE PUBLISHED

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2014-SC-000186-MR

CECIL SALYERS APPELLANT

ON APPEAL FROM HOPKINS CIRCUIT COURT
V. HONORABLE JAMES CLAUD BRANTLEY, JUDGE
NOS. 11-CR-00249 AND 12 - CR - 00111

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

In 2005, Appellant, Cecil Walter Salyers, Jr., met Alice Nolan,' a single

mother of four children. Although Appellant and Alice were not romantically

involved, he spent a significant amount of time around her and her children.

He took a particularly likening to the youngest daughter, April, who was

approximately six years of age at the time. Over the next five years, Appellant

acted as a father-figure to April, taking her to and from school, attending her

cheerleading practices, and accompanying her to other school functions. On

some occasions, April even stayed overnight at Appellant's residence in

Hopkins County. In July of 2010, Appellant suffered a massive heart attack.

April, who was eleven years old at the time, moved into Appellant's residence

on a full-time basis in order to take care of him.

1 Pseudonyms are being used for the mother and victims in order to protect
their anonymity.
 The crimes at issue in the case before us began when April moved in with

Appellant. More specifically, from July 2010 to November 2010, April, her

older sister Nicole, and several of their overnight guests were sexually abused

by Appellant. While numerous uncharged incidents were described in detail

during the trial, we will focus solely on the facts of the crimes charged.

April testified that while living with Appellant he began showing her sex

toys and explained how the toys worked. These sexual discussions turned into

physical interactions thereafter. April claimed that Appellant touched her

breasts and vagina several times and made her touch his penis. Appellant also

suggested that April bathe with her friends with the door opened or unlocked,

providing him an opportunity to watch the girls in the nude.

April's ten year old friend, Molly, was also victimized by Appellant. Molly

came over to Appellant's residence to visit April on several occasions. During

nearly every visit, Molly would shower or bathe nude with April while Appellant

watched. Molly also alleged that Appellant touched her breasts and "bad spot",

referring to her vagina. She also claimed that she witnessed Appellant touch

April's "bad spot" several times. In addition, April's twelve year old friend,

Kayla, was also sexually abused when she came to visit. According to Kayla,

Appellant rubbed aloe on her legs and then moved his hands all the way up to

her chest. He continued rubbing her breasts under her shirt until she asked

him to stop.

Appellant's abuse was not directed solely at the younger girls. April's

older sister, Nicole, who was fifteen in the summer of 2010, and Nicole's friend,

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Christy, were also subject to Appellant's abuse. On one particular night,

Christy accompanied Nicole to Appellant's house for an overnight visit. The

purpose of the visit was so Appellant could help Christy with her music career

by taking her photograph. Early in the night, both girls went into Appellant's

bedroom where he showed them sex toys and explained how the toys worked.

Appellant then told Christy that he would like to use the toys on her and could

make her feel "like no other could." Subsequently, Appellant had Christy

change into a revealing dress so she could be photographed. Appellant

provided the girls with alcohol, while he changed into his underwear. At some

point in the night, Appellant began rubbing aloe on Christy's sunburned legs.

He then had Christy remove her shirt and told Nicole to rub aloe on Christy's

naked chest. He continued to direct the girls until he became physically

aroused, at which point Christy put her shirt back on.

Nicole also testified that Appellant made sexual advances towards her on

other occasions. On one night, for example, after Nicole had turned sixteen

years old, Appellant asked her to come over so she could help him untangle a

box of cords. While there, Appellant placed his finger inside Nicole's vagina.

Afterwards, Nicole left Appellant's residence and she never returned.

On September 28, 2011, Appellant was indicted by a Hopkins County

Grand Jury in case number 11-CR-249 for sexually abusing April, Molly,

Nicole, and Christy. The indictment alleged three counts of first-degree sexual

abuse of a minor less than twelve years old, two counts of first-degree sexual

abuse of a minor less than sixteen years old, five counts of using a minor in a

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sexual performance, one count of indecent exposure, and one count of

unlawful transaction with a minor in the third degree. More than six months

later, on April 24, 2012, in case number 12-CR-111, Appellant was indicted for

the second time. This indictment alleged that Appellant committed first-degree

sexual abuse against Kayla. The two indictments were consolidated and tried

together.

A Hopkins County Circuit Court found Appellant guilty of the following

seven crimes: four counts of first-degree sexual abuse, including one count for

each victim with the exception of Nicole; two counts of using a minor in a

sexual performance; and third-degree unlawful transaction with a minor. The

jury recommended a sentence of forty years' imprisonment, which the trial

court summarily imposed. Appellant now appeals his conviction and sentence

as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.

Prosecutorial Misconduct

Appellant first argues that the Commonwealth committed prosecutorial

misconduct during its closing argument by using the analogy that Appellant

was a spider, trapping little girls in his web. The Commonwealth's closing

argument included the following fable-type story, which portrayed Appellant as

the spider:

Once upon a time there was a spider . . . [named] Cecil . . . . [H]e
met a woman who was single, divorced, four kids, no help from
husband, no finances, literally drowning. Along came [the. Spider] .
Let me help you out here. Let me take care of those little babies .. .
. And he got a house [nearby] and he put up a web, and he got an
interior decorator to make it look like something it wasn't, and he
began to invite in the little ones . . . . And Cecil the Spider began
spinning his web. He was trying to add [Christy] to the pile, but
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 [she] was smart enough to run away, and she started crying,
"Spider Alert!" And the police responded, and the officer from the
"government" showed up to say, "I see a spider web. I recognize it
because I work with them." And he began plucking the victims off
the web, bringing them one at a time [and asking them], "Tell me
how you got there . . . ." And you tear the web down, and what do
you find? . . . . Cecil the Spider.

Appellant argues that this closing argument was so prejudicial that it

encroached upon his constitutional right to due process of law. Appellant,

however, failed to object to any of the above-referenced statements of the

Commonwealth. Consequently, he must now demonstrate that the

Commonwealth's statements were flagrant, constituting a "manifest injustice."

See Justice v. Commonwealth, 987 S.W.2d 306, 316 (1998) ("Absent

contemporaneous objections, 'prosecutorial misconduct' is not grounds for

reversal, unless the acts complained of rise to palpable error . . . .").

In reviewing Appellant's claim of prosecutorial misconduct, we must

focus on "the overall fairness of the trial and may reverse only if

the prosecutorial misconduct was so improper, prejudicial, and egregious as to

have undermined the overall fairness of the proceedings." Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). The majority of Appellant's

brief focuses on the four factors listed in Hannah v. Commonwealth, 306

S.W.3d 509, 518 (Ky. 2010) which are used when evaluating the flagrant

nature of the Commonwealth's misconduct. However, our analysis does not

proceed that far, as we do not believe that the Commonwealth's statements

were improper.

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 This Court has made clear that "a prosecutor is permitted wide latitude

during closing arguments and is entitled to draw reasonable inferences from

the evidence." Graham v. Commonwealth, 319 S.W.3d 331, 341 (Ky. 2010)

(quoting Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky. 2005)). After

reviewing the Commonwealth's remarks, in the context of the entire trial and

the evidence presented therein, we believe the comments were well within the

bounds of proper argument. The prosecutor's comments were permissible

inferences buttressed by evidentiary support. Indeed, there was no mention of

facts that were not already presented to the jury. The Commonwealth merely

employed a unique method of explaining its theory of guilt to the jury. The use

of metaphor is an entirely legitimate tool of argument and persuasion.

Considering that Appellant was found not guilty of some of the crimes charged,

including a first-degree sexual abuse charge, we can conclude that the

Commonwealth's statements neither impinged upon the jury's ability to adduce

Appellant's guilt, nor did it affect the outcome of trial. The argument was not

error, and certainly does not rise to the level of "palpable" or "manifest

injustice."

KRE 404(b) Evidence

Appellant next complains of the Commonwealth's introduction of

inadmissible KRE 404(b) evidence. Prior to trial and as required by KRE

404(c), the Commonwealth notified Appellant of its intent to present the jury

with evidence that Appellant showed the victims his sex toys, demonstrated

how the toys worked, and even offered to use them on one of the girls. The

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Commonwealth argued that while such evidence may be prejudicial, it was so

inextricably intertwined with the circumstances surrounding the investigation

that its introduction was unavoidable. Appellant filed a motion in limine to

prevent the introduction of the evidence on the grounds that its probative value

was outweighed by its prejudicial effect. The trial court ruled that evidence of

the sex toys was an "integral part of the Commonwealth's case and [was]

inextricably intertwined in the conduct alleged by the Commonwealth." We

agree.

The admissibility of KRE 404(b) evidence is within the sound discretion

of the trial court. E.g., Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007).

A defendant's prior bad acts are inadmissible "to show action in conformity

therewith." KRE 404(b). However, KRE 404(b)(2) allows the admission of

evidence of other wrongs or acts "[i]f 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 the

Court has explained, "the key to understanding this exception is the word

`inextricably.' The exception relates only to evidence that must come in

because 'it is so interwoven with evidence of the crime charged that its

introduction is unavoidable."' Funk v. Commonwealth, 842 S.W.2d 476, 480

(Ky. 1992). We will not exclude the evidence simply because "it may tend to

prejudice the accused in the minds of the jurors . . . ." Schambon v.

Commonwealth, 821 S.W.2d. 804, 811 (Ky. 1991) (quoting Jones v.

Commonwealth, 554 S.W.2d 363, 367 (1977)).

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 During the trial, the jury heard testimony that Appellant had shown

April, Nicole and Christy actual sex toys. Alice in turn showed the toys to

Molly. The jury was also informed that Appellant explained to the girls how the

toys worked and then demonstrated how the toys vibrated by holding a battery

against April's leg and by also holding the actual toy against an unspecified

part of Nicole's and Christy's bodies. In addition, the jury heard testimony that

Appellant offered to use the sex toys on Christy and make her feel "like no

other." As mentioned, Appellant was not charged with committing these

specific acts.

We agree with the trial court that the above-referenced testimony was

allowable in order to provide the jury with a complete, unfragmented detail of

the events surrounding Appellant's victimization of the girls. See Kerr v.

Commonwealth, 400 S.W.3d 250, 261-62 (Ky. 2013) (quoting 1 Federal

Evidence Ch. 4 § 4:33 (Christopher B. Mueller and Laird C. Kirkpatrick 3d

ed.)); (404(b) evidence is inextricably intertwined when the evidence is

"necessary in telling and understanding the story of the charged crimes").

Considering that four of the victims' testimonies would include some account of

Appellant's sex toys, in addition to April, Nicole and Christy's separate

experiences of Appellant demonstrating the toys by touching them, we

conclude that such evidence was likely unavoidable when procuring the girls'

natural account of the crimes as they occurred. This Court has previously

found such evidence to be admitted because it is "germane to the overall

sequence of events surrounding the crimes . . . ." Clark v. Commonwealth, 267

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S.W.3d 668, 681 (Ky. 2008). Furthermore, it can easily be inferred that

Appellant used the toys as a way to gauge the girls' familiarity with sex and

likewise introduce the topic so as to normalize sexual conduct. Such

"normalizing conduct" is admissible even though it also establishes potential

criminal•acts. See Schambon, 821 S.W.2d at 811. For these reasons, we

believe the trial court did not abuse its discretion in allowing the introduction

of the sex toy evidence.

Appellant also mentions four other instances of allegedly inadmissible

KRE 404(b) evidence being presented to the jury. Specifically, Appellant states

that it was error for the Commonwealth to introduce testimony that (1)

Appellant confiscated the phone of one of April's friends who is not a victim in

the case before us; (2) Appellant commented on the aforementioned friend's

breasts; (3) Appellant tried to enter the bathroom when Kayla and April were

bathing and complained because the door was locked; and (4) Appellant

required one of April's friends who has not previously been mentioned to take a

bath with April and demanded that the door remain open.

Appellant never objected to the aforementioned testimony. It is only on

appeal that Appellant complains of this evidence. Unfortunately for Appellant,

he does not provide the Court with even one specific argument as to why the

admission of this evidence constitutes reversible error. In fact, the

Commonwealth did not address this issue due to Appellant's lack of argument.

Consequently, we will not engage in a substantive review. See Webster v.

Commonwealth, 438 S.W.3d 321, 327 (Ky. 2014) (the Court refused to analyze

9
appellant's argument because he did "not state how the alleged error amounts

to palpable error or how he suffered a manifest injustice at the hands of the

trial court."). It is not sufficient to make a blanket statement that all of the

complained of testimony is prejudicial. Such a statement does not

demonstrate that the testimony was so egregious and jurisprudentially

intolerable so as to affect the fairness of the trial. This Court "will not engage

in palpable error review pursuant to RCr 10.26 unless such a request is made

and briefed by the [A]ppellant." Shepherd v. Commonwealth, 251 S.W.3d 309,

316 (Ky. 2008).

Improper Joinder

Appellant's next assignment of error is that he was denied a fair trial and

due process of law when the trial court denied his motion to sever the charges.

As mentioned, Appellant was indicted for the first time in September of 2011.

The first indictment concerned Appellant's sexual misconduct in relation to

April, Molly, Nicole and Christy. Appellant filed a motion to sever the charges

in March of 2012. On April 13, 2012, the trial court denied Appellant's motion

because it believed that there was sufficient resemblance between the crimes to

render joinder proper. The following week, Appellant was indicted for the

second time for sexually abusing Kayla. Both indictments were subsequently

consolidated. Appellant urges this Court to conclude that it was reversible

error to try all the crimes together. Instead, Appellant believes the trial court

should have severed the charges so that he was tried separately for crimes

committed against the victims who were twelve years of age or younger.

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Essentially, Appellant maintains that he was prejudiced by the crimes charged

against the younger girls, April, Molly and Kayla.

Kentucky Rules of Criminal Procedure ("RCr") 9.12 permits two separate

indictments to be tried together if they could have been joined in a single

indictment. Pursuant to RCr 6.18, joinder of offenses in a single indictment is

appropriate "if the offenses are of the same or similar character or are based on

the same acts or transactions connected together or constituting parts of a

common scheme or plan." On the other hand, RCr 8.31 requires the

separation of offenses "[i]f it appears that a defendant or the Commonwealth is

or will be prejudiced by a joinder of offenses . . . ." The trial court has broad

discretion in regard to joinder and its ruling will not be overturned absent a

showing of clear abuse of that discretion. Violett v. Commonwealth, 907 S.W.2d

773, 775 (Ky. 1995).

Appellant contends that prejudice resulted from the trial court's refusal

to sever the charges relating to the younger girls because those offenses would

have been inadmissible in a trial of the offenses against the older girls, Nicole

and Christy. See Commonwealth v. English, 993 S.W.2d 941, 944 (Ky. 1999).

However, we note that "evidence of independent sexual acts between the

accused and persons other than the victim, if similar to the act charged, and

not too remote in time, are admissible to show intent, motive or a common

plan." Anastasi v. Commonwealth, 754 S.W.2d 860, 861 (Ky. 1988) (citing

Pendleton v. Commonwealth, 685 S.W.2d 549 (Ky. 1985).

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 The crimes committed against both sets of victims are similar enough to

show Appellant's intent, motive, and modus operandi. The offenses committed

against the younger and older girls occurred during the same time period and

in Appellant's home while visiting Alice's two daughters. The sexual acts are

similar in nature, as is the method Appellant employed to get the victims to

engage in such conduct. As discussed, Appellant employed the use of sex toys

for both the younger and older victims in an attempt to bring sexuality into the

normal realm of conversation. Appellant rubbed aloe on both sets of victims in

an attempt to fondle the girls' breasts and vaginal areas. In fact, Appellant

used the guise of rubbing aloe to soothe the skin on both Kayla and Christy in

order to touch or view their breasts. Therefore, we must conclude that there

was sufficient similarity between the crimes to render joinder appropriate.

We must also note that even if this Court were to assume that joinder

was erroneous, we cannot conclude that the error was reversible because

Appellant has not demonstrated that he suffered prejudice. Appellant was

found not guilty of sexually abusing Nicole. Clearly, the jury was able to fairly

evaluate each crime and each victim; See Peyton v. Commonwealth, 253

S.W.3d 504, 514 (Ky. 2008). For that reason, we believe that the "efficiency in

judicial administration by the avoidance of needless multiplicity of trials was

not outweighed by any demonstrably unreasonable prejudice to the [Appellant]

as a result of the consolidations." Brown v. Commonwealth, 458 S.W.2d

444, 447 (Ky. 1970).

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Directed Verdict

Appellant's last assignment of error is that the trial court erred in failing

to grant him a directed verdict of acquittal on the consolidated counts of Use of

a Minor in a Sexual Performance ("UMSP"). There were two separate incidents

that the prosecution argued constituted UMSP. The first occurred when April

and Molly took a shower together at Appellant's home. The second alleged

instance of UMSP occurred when Appellant urged Christy to remove her shirt

and bra, and then had Nicole rub aloe on her bare breasts. It is the first

incidence that Appellant claims a directed verdict should have been granted.

At the trial court level, Appellant argued that he was entitled to a directed

verdict on the ground that showering together is not obscene and therefore

cannot be classified as "sexual conduct." The trial court denied Appellant's

motion. On appeal, Appellant brings forth the same argument, but also now

claims that a directed verdict was appropriate because he never actually saw

any of the "private parts" of the girls' bodies. Of course, this second ground

was not raised to the trial court and is therefore not preserved for review.

Nonetheless, Appellant requests palpable error review pursuant to RCr 10.26.

This 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)). In other words, in

reviewing the elements of the crime, the Court must consider whether "the

evidence is sufficient to induce a reasonable juror to believe beyond a

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reasonable doubt that the defendant is guilty . . . ." Benham, 816 S.W.2d at

187. We must also keep in mind that when ruling on a motion for a directed

verdict, the trial court must "assume that the evidence for the Commonwealth

is true, but reserving to the jury questions as to the credibility and weight to be

given to such testimony." Id.

The crime of UMSP is proscribed in KRS 531.310(1), which makes it a

felony for an adult to "induce[] a minor to engage in a sexual performance."

The term "sexual performance" is defined in KRS 531.300(6) as "any

performance or part thereof which includes sexual conduct by a minor." In

pertinent part, KRS 531.300(4)(d) defines "sexual conduct by a minor" as "[t]he

exposure, in an obscene manner, of the unclothed or apparently unclothed

human male or female genitals, pubic area or buttocks, or the female breast . .

. ." The term "obscene" is defined in KRS 531.300(3) as "the predominant

appeal of the matter taken as a whole is to the prurient interest in sexual

conduct involving minors."

With these definitions in mind, we turn to Appellant's first argument that

the girls showering was not a sexual performance within the meaning of KRS

531.300(6), rather it was subjectively non-sexual. Appellant argues that

Jenkins v. Commonwealth, 308 S.W.3d 704 (Ky. 2010) is factually similar. In

that case, the defendant, Jenkins, mentored a six-year old boy. Id. at 706.

One day, Jenkins took the child and his friend to a public swimming pool. Id.

After swimming, the two boys and Jenkins showered together naked in the pool

locker room. Id. at 707. Pool employees peeked in on the group shower and

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noticed nothing out of the ordinary. Id. Even so, Jenkins was charged with

numerous crimes, including one count of indecent exposure for each boy. Id.

at 708. The trial court granted a directed verdict in favor of Jenkins on the

indecent exposure charge as it related to the child's friend. Id. However, he

was found guilty of indecently exposing himself to the child mentoree. Id. On

appeal, this Court held that the Commonwealth failed to prove the elements of

the crime as to each boy. Id. at 714. We concluded that "[m]ale nudity in a

men's locker room with showers is certainly not unusual, and standing alone,

it is not likely to cause affront or alarm, and is not a crime." Id.

We believe the shower situation in Jenkins is distinguishable to the case

before us. First and foremost, Jenkins did not involve the crime UMSP. While

UMSP and indecent exposure have similar elements, the crime of indecent

exposure requires an exposure of one's genitalia which "is likely to cause

affront or alarm . . . ." KRS 510.148. "Affront or alarm" is different from the

UMSP element of exposing oneself in an obscene manner. The Court found

that the "affront or alarm" element was not met because male showering in

these types of situations is fairly common. Id. at 714.

The shower that took place in Appellant's house is completely different

from the shower in Jenkins. An adult male viewing two teenage girls showering

in his residence is far from usual. Such an activity can be viewed as obscene,

falling below contemporary standards and appealing to Appellant's prurient

interest in sexual conduct. We believe the situation before us is more similar

to that in Gilbert v. Commonwealth, 838 S.W.2d 376 (Ky. 1991). In Gilbert, the

15
defendant, who was the victim's step-father, would force his three teenage step-

children to disrobe after which he would stare at the girls until he grew tired.

Id. at 379. He claimed it was a "form or discipline" and therefore did not

involve a "sexual performance." Id. This Court concluded that the acts were

obscene, appealing to the step-father's prurient interest in sexual conduct. Id.

at 380. Likewise, Appellant's request that the girls shower in the nude,

together, and at his residence where he could observe, was enough evidence to

induce a reasonable juror to believe that Appellant's intent was to appeal to his

own prurient interests in sexual conduct.

Appellant also claims that a directed verdict was appropriate because he

never actually saw any of the girls' "private parts." Appellant suggests that

there was no evidence that he saw or could have seen any of the girls' genitals,

pubic area, breasts, or buttocks. After a careful review of this argument, we

can find no palpable error. This Court has made clear that a jury is free to

make reasonable inferences from the evidence presented. E.g., Martin v.

Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999). In the case before us, the jury

was presented with evidence that Molly and April took a shower together

completely nude while Appellant watched. Undoubtedly, the jury could

logically conclude that Appellant saw at the very least the girls' buttocks or

breasts. Consequently, we find that Appellant was not entitled to a directed

verdict of acquittal on the charge of UMSP.

For the forgoing reasons, the Hopkins Circuit Court's judgment is hereby

affirmed.

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 All sitting. All concur.

COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Jeanne Deborah Anderson
Assistant Attorney General

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