Austin Channing McGraw v. Commonwealth of Kentucky

RENDERED: JULY 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-1705-MR
AND
NO. 2020-CA-0719-MR

AUSTIN CHANNING MCGRAW APPELLANT

APPEALS FROM CARTER CIRCUIT COURT
v. HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 18-CR-00134

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Austin Channing McGraw (“Appellant”) appeals from

a judgment of the Carter Circuit Court reflecting a jury verdict of guilty on one

count each of sodomy in the first degree and sexual abuse in the first degree.1

1
Kentucky Revised Statutes (“KRS”) 510.070 and KRS 510.110.
Appellant also prosecutes a separate appeal, which is consolidated herein, from an

opinion and order denying his motion for a new trial. Appellant raises several

claims of error including the improper admission of incriminating statements, the

improper failure to grant a mistrial, and the impaneling of a compromised jury.

For the reasons addressed below, we find no error and affirm the judgment on

appeal. We also affirm the trial court’s denial of Appellant’s motion for a new

trial.

FACTS AND PROCEDURAL HISTORY

On May 18, 2018, a Carter County grand jury indicted Appellant on

one count each of sodomy in the first degree and sexual abuse in the first degree.

The matter proceeded to a jury trial in Carter Circuit Court on July 16, 2019. At

trial, it was alleged that on April 1, 2018, B.B.,2 a 15-year-old female, went to

Appellant’s house to babysit Appellant’s child. Appellant was then a 24-year-old

man with a wife and young child. Appellant came home around midnight and

drove B.B. to Taco Bell in his truck. B.B. testified that Appellant stopped at an

ATM, withdrew $200, and offered it to her in exchange for a sex act. According to

B.B., she refused to perform the sex act. Upon returning to Appellant’s house,

B.B. testified that Appellant grabbed her head and shoved it toward his crotch.

B.B. again refused to perform the sex act, and testified that Appellant touched her

2
We will use B.B.’s initials because she was a minor in 2018.

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breasts in the truck and after entering the residence. B.B. spent the night at

Appellant’s residence, and awoke the next morning to find Appellant grabbing her

butt. B.B. stated that she told her boyfriend, C.F., and a female friend, G.F., about

what happened.

B.B. testified that about four days later, she and G.F. spent the night

at Appellant’s residence. She stated that she felt safe doing so because she

believed Appellant would not be at home. Appellant unexpectedly was at home

that night, however, and, according to B.B., he purchased alcoholic beverages and

provided them to the girls. B.B. drank to the point of intoxication.

According to B.B., after she was intoxicated, Appellant took her into

another room ostensibly to perform what he called a field sobriety test.3 B.B.

testified that Appellant tried to pull her pants down and put his penis in her vagina.

She said he also took her hand and tried to make her touch his penis, which she

refused. B.B. laid down on a weight bench and passed out from apparent alcohol

intoxication. When she awoke, Appellant allegedly had put his penis in her mouth

and his fingers in her vagina.

G.F. also testified and stated that B.B. told her about the April 2

incident. She also testified that Appellant provided alcohol to the girls and that

B.B. was highly intoxicated. G.F. further testified that Appellant repeatedly took

3
Appellant was a correctional officer at Little Sandy Correctional Complex.

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B.B. into the back room to perform what he called sobriety tests on her. G.F. was

concerned about Appellant’s behavior and at one point secretly used her phone to

record a short video of B.B. and Appellant. G.F. contacted B.B.’s boyfriend, C.F.,

and either G.F. or C.F. told B.B.’s mother who called the police.

A Kentucky State Police investigation followed. Detective Sam

Lawson interviewed B.B., G.F., and B.B.’s mother that night, and interviewed

Appellant at Appellant’s residence on April 6.

Appellant testified at trial and denied any wrongdoing. While

acknowledging that he was alone with B.B. in the truck on the way to Taco Bell,

Appellant denied withdrawing $200 from the ATM, and stated that he did not buy

alcohol nor provide any alcohol to B.B. Though he did not deny taking B.B. into

the room with the weight bench, he asserted that B.B. was very impressionable and

was making false allegations to get back at her boyfriend. Detective Lawson also

testified.

The matter went before the jury, which returned a verdict of guilty on

both counts. Appellant was sentenced to terms of 18 years and 5 years on the two

counts, to be served concurrently for a total sentence of 18 years in prison.

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Appellant’s motion for a new trial was denied, and this consolidated appeal

followed.4

ARGUMENTS AND ANALYSIS

Appellant, through counsel, first argues that he was prejudiced by the

introduction of multiple incriminating statements he allegedly made which were

never disclosed to the defense in conformity with the Kentucky Rules of Criminal

Procedure (“RCr”) and the circuit court’s trial order. Appellant asserts that on

June 6, 2018, the circuit court ordered the Commonwealth to produce “any oral

incriminating statement known by the attorney for the Commonwealth to have

been made by the Defendant to any witness.” According to Appellant, the

Commonwealth responded to the discovery order on June 6, 2018, and June 7,

2018, by providing six incriminating statements on April 2, 2018, purportedly

made by Appellant and to which B.B. was prepared to testify.

At trial, B.B. testified that on April 2, 2018, and while driving down

the road, Appellant stated that no one would find out if she performed the sex act,

that it would all be okay, and that B.B. should just do it. She further testified that

while sitting in the truck in the driveway, Appellant pulled B.B.’s head toward his

4
On June 1, 2020, Appellant filed a notice of appeal (No. 2020-CA-0719-MR) from the May 4,
2020 order denying his motion for a new trial. Appellant now states at footnote 23 of his written
argument that he “has elected to not pursue the appeal of the order entered on May 4, 2020.”
Appellant has not moved to dismiss No. 2020-CA-0719-MR, and it remains on the active docket.
As such, we will briefly address it herein.

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crotch and said “just do it.” According to B.B., Appellant also playfully told her to

hurry up and get out of the shower, and that the more she resisted the hotter it was.

B.B. testified that sometime later, Appellant said he was sorry and would never do

it again, and asked her to promise that she would not tell anyone.

Appellant argues that these statements were never disclosed to the

defense before trial, that the failure to disclose the statements violated the court’s

disclosure order, and that the resultant improper introduction of the statements

prejudiced the proceeding against Appellant. He notes that there was no direct

evidence in this case, whether DNA, a rape kit, hair or body fluid samples,

eyewitnesses, or a confession. As such, Appellant maintains that this is a classic

“he said, she said” scenario where the entirety of the Commonwealth’s case was

based on the testimony of the accuser. Since, according to Appellant, the

Commonwealth grossly violated the disclosure order by introducing Appellant’s

incriminating statements without proper notice to the defense, Appellant was

deprived of a fair trial and is entitled to an opinion reversing the judgment on

appeal.

In response, the Commonwealth argues that Appellant did not

preserve this argument for appellate review. It notes that Appellant did not make

any objection to B.B.’s testimony at trial, and never argued before the trial court

that the statements in question were not disclosed. The Commonwealth directs our

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attention to RCr 7.24(11), which provides that if it is brought to the court’s

attention that a party has failed to comply with this rule or order, the court may

allow for certain remedies including the aggrieved party’s inspection of the

undisclosed materials, a continuance, or the prohibition of the undisclosed

material’s entry into evidence. The Commonwealth also argues that when

questioned about inconsistencies between her trial testimony and what she told

Detective Lawson, B.B. either did not tell Lawson those things or did not recall if

she did. As such, the Commonwealth asserts that Appellant has not shown that it

was in possession of this information prior to B.B.’s trial testimony and therefore

did not wrongfully fail to disclose it. It also argues that even if B.B. testified as to

Appellant’s incriminating statements which were not disclosed, no manifest

injustice occurred and reversal is not warranted.

Appellant has not complied with Kentucky Rules of Civil Procedure

(CR) 76.12(4)(c)(v), which requires that the appellant state at the beginning of the

written argument if the issue was preserved and, if so, in what manner.5 We are

not required to consider portions of Appellant’s brief not in conformity with CR

76.12, and may summarily affirm the trial court on the issues contained therein.

5
Appellant contends that this issue is preserved by the trial court’s discovery order. “[E]rrors to
be considered for appellate review must be precisely preserved and identified in the lower
court.” Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation
omitted). Appellant never asked the Carter Circuit Court to consider the issue of whether the
Commonwealth failed to disclose all incriminating statements made by Appellant. As such, this
issue is not preserved for appellate review.

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Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky. App. 1985). “In Elwell v. Stone, 799

S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where an

appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only

undertake an overall review of the record for manifest injustice. We believe that

principle applies as well to the failure to comply with CR 76.12(4)(c)(v).” J.M. v.

Commonwealth, Cabinet For Health and Family Services, 325 S.W.3d 901, 902

n.2 (Ky. App. 2010). As in J.M., we have chosen the less severe alternative of

reviewing the proceeding below for manifest injustice rather than summarily

affirming the decision of the trial court. “Manifest injustice is found if the error

seriously affected the fairness, integrity, or public reputation of the proceeding.”

Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (footnote, citation,

and quotation marks omitted).

The question for our consideration, then, is whether the

Commonwealth’s alleged failure to disclose all of Appellant’s incriminating

statements seriously affected the fairness, integrity, or public reputation of the

proceeding. Kingrey, supra. We must answer this question in the negative. As to

inconsistencies between what she told Detective Lawson and her trial testimony,

B.B. stated that she either did not say those things to Lawson or did not remember

saying them. This statement reasonably supports the Commonwealth’s contention

that it was not in possession of this information prior to trial. Further, the

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Commonwealth disclosed that B.B. was prepared to testify that Appellant asked

her to perform a sex act, that Appellant offered her $200 to perform a sex act, that

he exposed himself to her and told her to perform the act, that he asked her not to

tell anyone what happened, and that she would ruin his life if she told anyone.

These disclosures broadly encompass the entirety of B.B.’s allegations and

reasonably informed the defense as to the nature and scope of B.B.’s testimony. In

addition, an incriminating statement must be incriminating at the time it was made,

not merely in the context of testimony presented at trial. Thorpe v.

Commonwealth, 295 S.W.3d 458, 461 (Ky. App. 2009) (citation omitted). B.B.’s

testimony that Appellant playfully knocked on the bathroom door and told her to

hurry up, or whether he offered or she asked for Taco Bell, are not in themselves

incriminating outside the context of the testimony presented at trial.

Because the Commonwealth 1) apparently was not aware in advance

of many things to which B.B. testified at trial, and 2) reasonably informed

Appellant as to the nature and scope of B.B.’s testimony, including her claims as to

several incriminating statements made by Appellant, we find no error seriously

affected the fairness, integrity, or public reputation of the proceeding. Kingrey,

supra. As such, we find no manifest injustice.

Appellant next argues that the circuit court erred in failing to grant a

mistrial when the Commonwealth commented on Appellant’s invocation of his

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right against self-incrimination. Specifically, the jury was shown a video of

Detective Lawson interviewing Appellant, wherein Lawson stated to Appellant

that, “you didn’t want to talk about it anymore you were afraid you were going to

incriminate yourself?” Appellant, through counsel, objected to the video. After

considering the matter outside the hearing of the jury, the court admonished the

jury to disregard the offending question and not to consider any inferences arising

therefrom. The court told the jury that any inference that Appellant terminated the

interview was inaccurate. Appellant now argues that a mere admonition was not

sufficient and the circuit court erred in failing to so rule.

It is noteworthy that the offending language took the form of a

question to Appellant rather than a statement by Detective Lawson. That is to say,

Lawson asked if Appellant was afraid he was going to incriminate himself.

Lawson did not state that Appellant was afraid he was going to incriminate

himself. Further, Appellant did not invoke his right to remain silent, but rather

continued to talk – albeit not about the question he was being asked.

We may presume that an admonition to disregard evidence is

effective, and that “the admonition cures any error.” Hoppenjans v.

Commonwealth, 299 S.W.3d 290, 292 (Ky. App. 2009) (citation omitted). An

admonition is not curative when 1) there is an “overwhelming probability” that the

jury will be unable to follow the admonition, coupled with a strong likelihood that

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the evidence would be devastating to the defendant, or 2) where the question was

asked without a factual basis and was inflammatory or highly prejudicial.

Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). We conclude that

neither of the Johnson exceptions applies herein; therefore, we hold that the

admonition was effective and cured the error.

Appellant goes on to argue that he was prejudiced by the impaneling

of a compromised jury. Specifically, he asserts that three jury pool members were

biased. One pool member acknowledged that her husband had been a victim of

sodomy as a child. A second pool member stated that her first cousin’s daughter

was sexually abused by her stepfather. A third potential juror said that his wife’s

nieces allegedly were molested by a family member. Appellant used peremptory

strikes to remove two of the individuals and the third person sat on the jury. He

argues that the circuit court erred in failing to strike all three jurors for cause.

Appellant acknowledges that this issue is not preserved for appellate

review. He argues, however, that the failure to strike the jurors for cause

constitutes palpable error sufficient to require reversal. “A palpable error which

affects the substantial rights of a party may be considered . . . by an appellate court

on appeal, even though insufficiently raised or preserved for review, and

appropriate relief may be granted upon a determination that manifest injustice has

resulted from the error.” RCr 10.26. “When an appellate court engages in a

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palpable error review, its focus is on what happened and whether the defect is so

manifest, fundamental and unambiguous that it threatens the integrity of the

judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

The question for our consideration, then, is whether the failure to

strike the three jurors for cause was a defect so manifest, fundamental, and

unambiguous that it threatened the integrity of the judicial process. We find no

such defect. Manifest injustice has been found, for example, when the

Commonwealth and the trial judge agreed to “send a message” by sentencing a

defendant far in excess of the statutory maximum penalty. Martin v.

Commonwealth, 456 S.W.3d 1, 12 (Ky. 2015). Manifest injustice has also been

found when identical jury instructions for separate offenses potentially deprived

the defendant of his right to a unanimous verdict and to challenge the sufficiency

of the evidence on appeal. Miller v. Commonwealth, 283 S.W.3d 690, 696 (Ky.

2009). The decision of the Carter Circuit Court not to strike these three potential

jurors for cause did not threaten the integrity of the judicial process as in Martin

and Miller. All three jurors stated that they could be fair and impartial; therefore,

we find no basis for reversing the judgment of conviction on this issue.

Appellant’s fourth argument is that the trial court erred in allowing

improper expert opinion testimony to be admitted. On direct examination,

Detective Lawson was questioned as to why he did not use a sexual assault kit as

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part of his investigation. He answered that it was likely that any DNA from the

perpetrator in B.B.’s mouth would have been “overpowered” by her DNA given

the length of time between the alleged crime and Lawson’s investigation. Citing

Kentucky Rules of Evidence (“KRE”) 702, Appellant argues that this answer

constituted improper expert testimony requiring scientific, technical, or other

specialized knowledge. As such, Appellant contends that Lawson’s answer should

have been stricken.

Appellant again acknowledges that this issue is not preserved for

appellate review. We do not conclude that Lawson’s answer rises to the level of

error seriously affecting the fairness, integrity, or public reputation of the

proceeding. Kingrey, supra. As such, we find no manifest injustice requiring

reversal on this issue.

Appellant goes on to argue that Lawson improperly stated his opinion

that wine coolers of the type purchased by Appellant are the type of beverage

typically consumed by younger females. Appellant argues that the trial court erred

in failing to admonish the jury that the detective was not qualified to offer such an

opinion. The trial court sustained Appellant’s objection as to Lawson’s statement

about the type of alcohol purchased by Appellant, and defense counsel did not

request an admonition. “Our precedent holds that a failure to request an

admonition after an objection had been sustained means that no error occurred.”

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Allen v. Commonwealth, 286 S.W.3d 221, 225-26 (Ky. 2009) (footnote, citation,

and internal quotation marks omitted).

Appellant next argues that the trial court erred in allowing the

Commonwealth to make an improper opening statement. The Commonwealth’s

opening statement included references to child predators, with the Commonwealth

referring to “some individuals who are a wolf in sheep’s clothing . . . .” The

Commonwealth noted that society doesn’t know why these individuals prey on

children, and it recited the story of Dr. Johnny Bardo who was a respected member

of the community yet sexually assaulted 24 children.

Defense counsel objected more than once to the Commonwealth’s

opening statement. The first objection was overruled. After the second objection,

the trial court agreed that the Commonwealth should tell the jury about the

evidence it intended to present rather than engaging in advocacy. The focus of

Appellant’s argument is that the Rules of Criminal Procedure do not allow the

Commonwealth to imply that the Defendant has committed multiple child

molestations when such an implication is not supported by the evidence. Appellant

argues that he was entitled to a mistrial because comparing Appellant to a serial

child molester was improper and prejudicial.

The trial court sustained Appellant’s second objection and directed the

Commonwealth to “move on.” Thereafter, the Commonwealth told the jury,

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 You’re going to hear the defense argue, why would he do
this? Why would this 24 year old man, corrections
officer, with a wife and baby, commit these crimes? I
can’t answer that. What I can tell you is that on April 1,
2019, he attempted to have sex with a 15 year old girl in
his vehicle alone.

“The attorney for the Commonwealth shall state to the jury the nature

of the charge and the evidence upon which the Commonwealth relies to support

it[.]” RCr 9.42(a). The opening statement is not evidence, and the Commonwealth

is entitled to wide latitude in its content. Wheeler v. Commonwealth, 121 S.W.3d

173, 180 (Ky. 2003) (citation omitted). After Appellant’s second objection, the

trial court directed the Commonwealth to move on to the evidence and it complied.

We find no error. Arguendo, error, if any, would be harmless as there was no

substantial possibility that the outcome of the trial could have been different but for

the error. Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006).

Appellant’s sixth argument is his contention that the trial court erred

in allowing B.B. to be referred to as “the victim” throughout the trial, thus

depriving Appellant of due process and his right to the presumption of innocence.

Appellant does not cite to the record as to if and when such references were made.

Further, this argument was not raised at trial and is not preserved for our review.

The Kentucky Supreme Court has held that children subjected to sexual abuse may

properly be referred to at trial as “victims” with no undue prejudice. Whaley v.

Commonwealth, 567 S.W.3d 576, 590 (Ky. 2019). We find no manifest injustice

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on this unpreserved argument, and thus no error. For the same reason, we find no

error on Appellant’s related argument that G.F. should not have been allowed to

testify that Appellant was “scary.”

Appellant’s next argument is his contention that he was prejudiced by

the admission of prior bad acts without notice. At trial, G.F. testified that

Appellant would “mess around with us a lot,” that he would frequently tickle her

and “he’d graze over stuff.” Though Appellant did not object to the “graze over

stuff” language, the trial court conducted a bench conference and asked where the

Commonwealth was going with this line of questioning because there was no

notice of Appellant’s alleged prior bad acts. Thereafter, the Commonwealth

moved on and asked G.F. no more questions about it.

We agree with the Commonwealth that this utterance was brief,

spontaneous, and was not cited by the Commonwealth as proof of Appellant’s guilt

on the underlying charges. Error on this issue, if any, was harmless.

Appellant next argues that the trial court erred in failing to grant a

directed verdict on the sodomy charge where the Commonwealth failed to prove

forcible compulsion. A person is guilty of first-degree sodomy when he engages in

sexual intercourse with another person either 1) by forcible compulsion or 2) when

the other person is incapable of consent due to physical helplessness or they are

less than 12 years old. KRS 510.070. The indictment alleged sexual intercourse

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by forcible compulsion based on B.B.’s claim that while laying on the weight

bench, she awoke to find Appellant “putting his penis in my mouth.” At trial, the

Commonwealth unsuccessfully sought to amend the indictment to the “physical

helplessness” element. Appellant argues that the Commonwealth failed to prove

forcible compulsion, and as such, Appellant was entitled to a directed verdict of

acquittal.

To satisfy the element of forcible compulsion, the Commonwealth

must prove that there was either actual physical force or the threat of physical

force. KRS 510.010(2). A threat of physical force may be either express or

implied, and is satisfied if the victim was in fear of any sex offense encompassed

by KRS Chapter 510 including rape, sodomy, sexual abuse, sexual misconduct, or

indecent exposure. The Kentucky Supreme Court has held that an act as simple as

grabbing someone’s hand may satisfy the element of forcible compulsion. Yates v.

Commonwealth, 430 S.W.3d 883, 890 (Ky. 2014). This is because forcible

compulsion is always grounded on a lack of consent. Id. That is to say, a person

who consents to contact cannot be said to have been a victim of forcible

compulsion, whereas a person who does not consent may be characterized as a

victim of forcible compulsion. Id.

Since the mere act of holding or grabbing someone’s hand without her

consent may, under the right circumstances, be characterized as an act of forcible

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compulsion, we conclude that Appellant’s act of placing his penis in B.B.’s mouth

while she was asleep or unconscious may also be characterized as an act of forcible

compulsion. We draw that conclusion because both acts share the element of lack

of consent. Further, since B.B. testified that Appellant had previously forced her

head toward his crotch, a reasonable juror could conclude that B.B. was in fear of

additional acts of physical compulsion thus satisfying “threat of physical force,

express or implied” language of KRS 510.010(2).

The standard of review on a motion for a directed verdict was set forth

in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), in which the

Kentucky Supreme Court stated:

On motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, 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.

On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.

(Citations omitted.) The prosecution must produce more than a “mere scintilla of

evidence” regarding the defendant’s guilt. Id. at 188. However, “[t]he testimony

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of even a single witness is sufficient to support a finding of guilt, even when other

witnesses testified to the contrary if, after consideration of all of the evidence, the

finder of fact assigns greater weight to that evidence.” Commonwealth v. Suttles,

80 S.W.3d 424, 426 (Ky. 2002) (citation omitted). The Commonwealth produced

more than a mere scintilla of evidence that Appellant was guilty of first-degree

sodomy under KRS 510.070. We find no error on this issue.

Appellant’s final argument is that the cumulative effect of the

foregoing errors requires reversal. Cumulative error can serve as a basis for

reversal if the multiple errors, although individually harmless, have the effect of

rendering the trial fundamentally unfair. Elery v. Commonwealth, 368 S.W.3d 78,

100 (Ky. 2012) (citation omitted). We find no cumulative error which deprived

Appellant of a fair trial. Having determined that Appellant was not deprived of a

fair trial, we find no error in the Carter Circuit Court’s denial of Appellant’s

motion for a new trial in appeal No. 2020-CA-1719-MR.

CONCLUSION

Having closely examined the record and the law and given due

consideration to the arguments of counsel, we do not find any individual or

cumulative error warranting reversal of the judgment on appeal. Appellant is not

entitled to a new trial. We affirm the judgment of the Carter Circuit Court.

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 ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Paul J. Dickman Daniel Cameron
Covington, Kentucky Attorney General of Kentucky

Mark D. Berry
Assistant Attorney General
Frankfort, Kentucky

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