RENDERED: AUGUST 28, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000326-MR
JANTZEN KNIGHT BRICKEEN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIMOTHY J. KALTENBACH, JUDGE
ACTION NO. 18-CR-00027
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES.
ACREE, JUDGE: Jantzen Brickeen appeals the McCracken Circuit Court’s
February 13, 2019 final judgment and sentence of imprisonment. He contends the
circuit court erred in three ways: (1) by refusing to strike a juror for cause; (2) by
refusing to grant a mistrial for prosecutorial misconduct; and (3) by instructing the
jury on a second-degree rape charge, which he argues was not decided
unanimously. Finding no error, we affirm.
BACKGROUND
On the evening of November 25, 2017, Ashley Daughtery went to a
bar with her friend, Dustin Lassiter, in Paducah, Kentucky. She gave Lassiter her
license and car keys because she did not have any pockets. However, she
eventually got separated from Lassiter, who ultimately left her alone at the bar.
Instead of leaving the establishment, she decided to stay and order another drink.
At that time, she met Brickeen.
While drinking with Brickeen, Daughtery began feeling “kind of
weird.” Nevertheless, Brickeen convinced Daughtery to accompany him to a party
at his friend’s house. She agreed to leave, and they got in a cab together and left.
After some time at the party, Daughtery asked if Brickeen had anything to “make
[her] feel better.” She followed him into the basement where he gave her a pill,
later found to be a Xanax tablet. Daughtery testified she could not remember what
happened next.
Around 2:00 a.m., two guests went to the basement and found
Daughtery unconscious, lying on the floor, partially covered by a blanket. When
the two guests tried to move her to a chair, they discovered she was not wearing
any pants. Brickeen told the guests Daughtery was fine, so they left her alone.
-2-
When Daughtery regained consciousness she noticed she had a couple
of scratches on the inside of her legs and some red marks or bruises on her neck.
She also found Brickeen’s phone that contained a partially nude photograph of her
and a video of her and Brickeen engaging in sexual intercourse. Using her phone,
she photographed the picture and recorded the video. She left the house and
obtained a ride to Western Baptist Hospital. When she arrived at the hospital, she
was tested for sexually transmitted infections and submitted to a rape kit. Charges
were brought by the Commonwealth, indicting Brickeen for his conduct.
The jury eventually found Brickeen guilty of second-degree rape and
third-degree trafficking in a controlled substance. He was sentenced to three
months’ imprisonment for trafficking and five years’ imprisonment for second-
degree rape, to run concurrently. This appeal followed.
STANDARD OF REVIEW
We review a circuit court’s decision not to strike jurors for cause and
the denial of a mistrial under an abuse of discretion standard. Sluss v.
Commonwealth, 450 S.W.3d 279, 282 (Ky. 2014); Bray v. Commonwealth, 68
S.W.3d 375, 383 (Ky. 2002). “When the question is whether a trial court erred by:
(1) giving an instruction that was not supported by the evidence; or (2) not giving
an instruction that was required by the evidence[,] the appropriate standard for
-3-
appellate review is whether the trial court abused its discretion.” Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).
ANALYSIS
Brickeen alleges the circuit court erred in three ways: (1) refusing to
strike a juror for cause; (2) refusing to grant a mistrial for prosecutorial
misconduct; and (3) instructing the jury on a second-degree rape charge. We take
each issue in turn.
Refusing to Strike a Juror for Cause
During voir dire, the Commonwealth asked the venire members if
there was any reason they could not serve on the jury. This prompted Juror 301 to
approach the bench and inform the court that “when [she] was about twelve years
old, [her] mom’s boyfriend at the time would . . . sexually molest [her].” She also
said she was “a little uncomfortable with the . . . concept of . . . rape . . . .” The
circuit court then asked if she could impartially serve as a juror in this case. The
following exchange took place:
Court: The question is, is whether or not you can
judge the facts of this case based solely on
what you hear in this courtroom during this
trial, or whether that experience is going to,
to taint the way you might judge the facts,
whether, and when I say that, taint the way
you’re judging the facts fairly, and only you
know that in your mind. So, you, you, you
tell me whether or not that’s going to affect
the way you judge the facts of this case.
-4-
Juror 301: I think I’ll be able to do it fairly.
After this, Brickeen’s counsel asked if it would affect her judgment if
the victim in this case was helpless in the same way that she had been helpless.
Juror 301 answered that she did not think her past was going to sway her opinion
because her abuse was different from the facts of this case, considering that this
case involved “date rape.” Thereafter, the circuit court questioned her again
regarding her impartiality. It asked:
Court: The question is, is whether or not you can
fairly judge the facts of this case, or whether
or not and, and, so, or whether or not the prior
experiences is going to keep you from that,
and that’s really what . . . if you’re
comfortable then that’s, I’m not, then . . .
you’re fine to sit. The question is, but if you
have any doubt, then you need to let us know.
That’s–
Juror 301: You know, when, whenever he mentioned
that there’s going to be photography and
videos, that kind of made me feel a little
uncomfortable.
Court: All right, feeling uncomfortable is one thing.
The question is, is, is whether or not your
prior experience, if you see videos, is going
to affect your ability to judge the facts fairly
in this, in this case, or might affect your
ability.
Juror 301: I think I’ll be okay.
-5-
Brickeen’s counsel attempted to strike Juror 301 for cause, but the
circuit court would not allow it. Therefore, Brickeen’s counsel was forced to use a
preemptory strike against Juror 301. Brickeen now argues the circuit court erred
by denying his attempt to strike Juror 301 for cause because she was a victim of
sexual abuse. We disagree.
A juror should be struck for cause “[w]hen there is reasonable ground
to believe [the] prospective juror cannot render a fair and impartial verdict on the
evidence.” RCr1 9.36(1) (emphasis added). “In ruling on a motion to strike a juror
for cause, a judge must make a determination of the juror’s ability to serve based
on the entirety of his response.” Little v. Commonwealth, 422 S.W.3d 238, 242
(Ky. 2013); see also Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007).
Therefore, “the trial court possesses considerable discretion and its view of the
juror’s demeanor and apparent candor must be duly considered.” Moss v.
Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997) (citation omitted).
Brickeen argues that Juror 301 was unable to sit on the jury because
of her history with sexual assault. However,
[t]his Court has consistently held that the mere fact that a
juror or her family member has been the victim of a crime
similar to the one charged against the defendant does not,
in and of itself, justify that juror’s excusal. Brown v.
Commonwealth, 313 S.W.3d 577, 598 (Ky. 2010) (juror
victim of burglary); Richardson v. Commonwealth, 161
1
Kentucky Rules of Criminal Procedure.
-6-
S.W.3d 327, 330 (Ky. 2005) (juror victim of sexual
abuse); Woodall v. Commonwealth, 63 S.W.3d 104, 118
(Ky. 2001) (juror sister of rape victim); Hodge v.
Commonwealth, 17 S.W.3d 824 (Ky. 2000) (citing several
earlier cases holding similarly).
Little, 422 S.W.3d at 242. In cases such as these, additional evidence of bias is
required. Id. There must be “[o]bvious factors bearing on the likelihood of bias
[such as] the similarity between the crimes, the length of time since the prospective
juror’s experience, and the degree of trauma the prospective juror suffered.”
Brown, 313 S.W.3d at 598. Ultimately, “[i]t is the totality of all the circumstances,
however, and the prospective juror’s responses that must inform the trial court’s
ruling.” Id.
Given this standard, and the discretion awarded to the circuit court,
we are satisfied that Juror 301 could be impartial, and the circuit court did not err
by denying Brickeen’s motion to strike for cause. The circuit court’s colloquy
with Juror 301 demonstrated that her personal tragedies would not affect her ability
to render a fair and impartial verdict. Additionally, considerable time had passed
since her abuse. See Richardson, 161 S.W.3d at 331 (no abuse of discretion
occurred when trial court allowed a juror to remain on the panel in sexual abuse
case despite the fact that the juror had been sexually abused fourteen years earlier).
We find no abuse of discretion in the circuit court’s denial of
Brickeen’s motion to strike Juror 301 for cause.
-7-
Prosecutorial Misconduct
During closing argument, the prosecutor commented regarding what
he interpreted as Brickeen’s conflicting stories of what happened. After noting the
differences, the prosecutor told the jury the defendant had “a little explaining to
do.” Brickeen immediately moved for a mistrial arguing the Commonwealth’s
closing included improper comments regarding Brickeen’s right to remain silent.
The circuit court denied the motion for a mistrial but, instead, admonished the jury.
Brickeen believes this is insufficient and an error. Given our standard of review
pertaining to mistrials, we disagree with Brickeen and conclude the circuit court
did not err.
“A jury is presumed to follow an admonition to disregard evidence[,]”
and an admonition is presumed sufficient to cure errors. Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). The only two circumstances in
which an admonition is deemed an insufficient curative measure are:
(1) when there is an overwhelming probability that the jury
will be unable to follow the court’s admonition and there
is a strong likelihood that the effect of the inadmissible
evidence would be devastating to the defendant, or (2)
when the question was asked without a factual basis and
was inflammatory or highly prejudicial.
Id. (internal quotation marks and citations omitted). But this case does not satisfy
the requirements of either exception.
-8-
The only exception that could reasonably pertain to the prosecutor’s
comment at closing is the first. It requires an overwhelming probability the jury
would not follow the admonition and a strong likelihood it would be devastating to
the defendant. Although this comment pushes the permissible/impermissible
comment envelope, this Court is not convinced there is an overwhelming
probability the jury would not follow the admonition. Given the presumption that
an admonition cures errors, coupled with the colloquial nature of the saying –
“you’ve got some explaining to do” – we find the jury would be able to follow the
admonition. In short, we believe the circuit court’s admonition was a sufficient
curative measure, and not an abuse of discretion, rendering a mistrial unnecessary.
Jury Instruction
Lastly, Brickeen argues the circuit court erred by instructing the jury
on second-degree rape. The Commonwealth believes this Court is unable to
review this issue due to lack of preservation under RCr 9.54. We disagree. Our
predecessor Court previously held, “although it is not necessary to raise objection
to the instructions at the time they are given, it is imperative that claimed errors in
instructions, given or omitted, be presented to the trial court at some time, either by
proper objection or by motion, and certainly no later than the motion for a new
trial, before they may receive appellate review.” Hartsock v. Commonwealth, 382
S.W.2d 861, 864 (Ky. 1964). The Court held an objection must be presented to the
-9-
trial court “at some time[.]” Id. Therefore, we find that Brickeen preserved his
argument by filing a motion in the circuit court, prior to appealing. We now move
to Brickeen’s substantive argument.
After the conclusion of proof, the circuit court instructed the jury on
first-degree and second-degree rape. Brickeen argues that while a trial court must
instruct a jury on the whole law of the case, the Commonwealth never proved an
essential element of second-degree rape. Therefore, it should not have given that
instruction because it was not supported by evidence.
KRS2 510.050 identifies the elements of second-degree rape. For the
purposes of this case, a person is guilty of second-degree rape when: “He or she
engages in sexual intercourse with another person who is mentally incapacitated
. . . .” KRS 510.050(1)(b). Mental incapacity is defined by KRS 510.010(5) as a
person “rendered temporarily incapable of appraising or controlling his conduct as
a result of the influence of an intoxicating substance administered to him without
his consent or as a result of any other act committed upon him without his
consent[.]” Given these definitions, Brickeen argues that because Daughtery took
the Xanax pill of her own accord, she was not mentally incapacitated and,
therefore, he did not commit second-degree rape.
2
Kentucky Revised Statutes.
-10-
We understand Brickeen’s argument. However, the Commonwealth
provided testimony that Daughtery believed she was drugged at the bar, before she
took the Xanax pill.
Daughtery testified that: (1) she felt “like the lights were messing
with [her] eyes”; (2) her “body was really heavy”; and (3) “everything sounded
echo-y.” She also testified to telling Brickeen she thought she was drugged. Our
Supreme Court recognized in Commonwealth v. Gross that direct proof of a crime
is not necessary. 428 S.W.3d 619, 625 (Ky. 2014). “It has long been the law that
the Commonwealth can prove all the elements of a crime by circumstantial
evidence.” Id. (citation omitted). Circumstantial evidence is “sufficient to support
a criminal conviction as long as the evidence taken as a whole shows that it was
not clearly unreasonable for the jury to find guilt.” Bussell v. Commonwealth, 882
S.W.2d 111, 114 (Ky. 1994) (citations omitted). Given this, we find the circuit
court did not err by instructing the jury on second-degree rape.
Brickeen briefly suggests the instruction violated his right to a
unanimous verdict. He only states, “[a]s the Commonwealth argued in its
Response, ‘there are multiple ways the jury could have arrived at a conviction of
second degree rape.’” (Appellant’s Brief p. 20.) Even though the Commonwealth
mentioned various ways Daughtery could have become incapacitated, the law does
not require Brickeen to be the one who incapacitated Daughtery. It only requires
-11-
proof that he had sexual intercourse with the victim while she was incapacitated.
See KRS 510.050(1)(b).
Recently, our Supreme Court held that the existence of multiple ways
of finding guilt does not render a jury instruction invalid. Cox v. Commonwealth,
553 S.W.3d 808, 812-13 (Ky. 2018). It stated, “a disagreement about means—
would not matter as long as all 12 jurors unanimously concluded that the
Government had proved the necessary related element[.]” Id. at 813. In reliance
on Cox, we hold that regardless of who potentially drugged Daughtery, or when
Daughtery was drugged, the jury just needed to conclude Brickeen had sexual
intercourse with Daughtery while she was incapacitated. We find no error in the
circuit court’s jury instructions.
CONCLUSION
For the foregoing reasons, we affirm the McCracken Circuit Court’s
February 13, 2019 final judgement and sentence of imprisonment.
ALL CONCUR.
-12-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jeremy Ian Smith Andy Beshear
Paducah, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
-13-