IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: OCTOBER 28, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0251-MR
ROBERT WAYNE CLINE APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
V. HONORABLE JOHN GRISE, JUDGE
NO. 18-CR-00889
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Robert Wayne Cline was convicted following a jury trial in Warren Circuit
Court of two counts of rape in the first degree with the victim being under
twelve years of age. Cline received a sentence of twenty-five years’
imprisonment on each count, with the sentences to be served concurrently. He
now appeals as a matter of right1 raising four allegations of error. We affirm.
I. Facts and Procedural Background
On April 2, 2018, Warren County Sheriff’s Detective Evan Cook received
a report of alleged sexual abuse perpetrated by Cline against his minor step-
daughter, Amy.2 The allegations stemmed from events which occurred three or
1 Ky. Const. §110(2)(b).
2 “Amy” is a pseudonym we use here to protect the anonymity of the child
victim/witness.
four years prior to the report date. Following an investigation, Cline was
directly indicted for two counts of rape in the first degree. At a trial convened
in March 2020, the jury heard testimony from Amy, her mother, her paternal
grandmother, Cline, and Detective Cook. The following factual background is
gleaned from that testimony.
In 2014, Cline began dating April, a woman 24 years his junior and the
daughter of one of his good friends. April moved into Cline’s house in the
summer of 2014. April had two daughters from her prior marriages to Daniel.3
The oldest, Amy, spent most of her time with Daniel, while the youngest
primarily lived with April. The girls stayed together on weekends, alternating
between parents. Daniel obtained full custody of the girls in October 2015 and
refused to permit them to visit Cline’s home. April was granted supervised
visitation. She and Cline married on June 4, 2016, following which April did
not visit Amy again.
One night during the 2014-2015 school year while it was cold outside,
Amy awoke with a dry throat. She went to the kitchen to get a drink of water
and saw Cline sitting in the living room wearing only boxer shorts. Amy stated
Cline approached her, grabbed her arm, and forced her into his bedroom.
Cline pushed her to the bed, placed one leg on top of her, pulled up her
nightgown, and pulled down her panties. He then removed his boxer shorts
and penetrated her vagina with his penis. Cline moved back and forth and
3April and Daniel were married to each other twice. Each marriage produced a
daughter.
2
began moaning. When he withdrew, Cline left semen on Amy’s leg, then
returned to the living room. Amy went back to her room, wiped off the semen,
and cried herself to asleep. She did not tell anyone what happened.
The following weekend, Cline woke Amy up sometime during the night.
He pulled her from the top bunk where she had been sleeping and dragged her
to his bedroom. Again, Cline pulled up her nightgown, pulled down her
panties, and penetrated her vagina with his penis. Amy believed she saw
someone—possibly April—in the doorway during the assault. Cline rocked
back and forth inside of Amy but did not ejaculate. He returned to the living
room and Amy returned to her own room. She said she was too scared at that
time to seek out her mother.
Approximately a week later, Amy informed April what had happened.
April responded Cline would not do such things and dismissed the allegations.
In late March 2018 Amy told Daniel and her paternal grandmother about the
rapes. The following week, Amy’s therapist recorded an interview about the
incidents. Shortly thereafter, a forensic interview was conducted at Barren
River Area Child Advocacy Center. Subsequently, a report was made to the
Warren County Sheriff’s Office and Detective Cook began his investigation.
Based on the delay between the incidents and the reporting, Detective
Cook testified his investigation was different from one in which the rape was
recent. In delayed reporting cases, he indicated physical or trace evidence
would likely have perished or could no longer be collected, witnesses are more
difficult to locate, and obtaining specific details from witnesses about what
3
happened is hampered. He did not attempt to collect any forensic evidence,
nor did he request a physical or medical examination of Amy.
Detective Cook interviewed Cline and April separately at their home.
Cline admitted his relationship with Amy was strained and denied ever
spending any time alone with her. Cline indicated Amy wanted him out of the
picture so April and Daniel could get back together. He and April each believed
Daniel encouraged Amy to fabricate the allegations. Cline categorically denied
sexually abusing Amy. April told Detective Cook if he could get Amy away from
Daniel the truth would come out.
Although April had initially told Detective Cook she moved in with Cline
in 2014, she and Cline later testified the actual date they began cohabitating
was in September of 2015, shortly before April lost custody of the girls. Based
on that date, they insisted there was no way Cline could have perpetrated the
acts he was accused of and the allegations had to be false. Further, April
stated the girls were never at her house on consecutive weekends, so Amy’s
story could not be true. April testified Cline was never alone with Amy and
denied Amy ever reported any sexual abuse to her. She blamed Daniel for
“putting stuff in her head” and trying to use Amy to break up her relationship
with Cline.
Amy’s grandmother told the jury since her disclosure, Amy had gained
confidence and self-esteem and had amassed a small group of friends. Her
sleep had improved. Before that time, Amy had seemed quiet, withdrawn,
angry, and sad. She had been hesitant and scared to stay with April and Cline.
4
Amy still harbored anger toward her mother. The grandmother contradicted
April and Cline’s claims Amy was never left alone with Cline, recounting
statements directly made by April.
The jury found Cline guilty of both counts of rape. In accordance with
the jury’s recommendation, Cline was sentenced to an aggregate term of
twenty-five years’ imprisonment. This appeal followed.
II. Analysis
Cline raises four allegations of error in seeking reversal. First, he asserts
indistinguishable counts in the indictment and flaws in the jury instructions
deprived him of a unanimous verdict. Second, Cline argues the evidence
presented at trial was insufficient to support the jury’s verdict and he should
have been granted a directed verdict of acquittal. Third, he contends the trial
court erroneously permitted the Commonwealth to present victim impact
testimony in the guilt phase of trial. Finally, Cline maintains Detective Cook’s
testimony regarding challenges in investigating “delayed reporting” crimes
impermissibly reduced the Commonwealth’s burden of proof. Cline concedes
his first, third, and fourth alleged errors are unpreserved for appellate review
and requests palpable error review of those issues under RCr4 10.26. He
asserts his second argument was properly preserved for review by his motions
for directed verdict, a position challenged by the Commonwealth. No request
for palpable error review is made as to that argument.
4 Kentucky Rules of Criminal Procedure.
5
Pursuant to RCr 10.26, a palpable error occurs if a defendant’s
substantial rights are affected and a manifest injustice occurs. Martin v.
Commonwealth, 207 S.W.3d 1, 2 (Ky. 2006). Such injustice occurs only when
the alleged error seriously affected the “fairness, integrity or public reputation
of the judicial proceedings.” Id. at 4 (citation omitted); Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
In Brewer, this Court stated:
For an error to be palpable, it must be “easily perceptible, plain,
obvious and readily noticeable.” A palpable error “must involve
prejudice more egregious than that occurring in reversible error[.]”
A palpable error must be so grave in nature that if it were
uncorrected, it would seriously affect the fairness of the
proceedings. Thus, what a palpable error analysis “boils down to”
is whether the reviewing court believes there is a “substantial
possibility” that the result in the case would have been different
without the error. If not, the error cannot be palpable.
206 S.W.3d at 349 (footnotes omitted). Brewer was later strengthened,
requiring the probability “of a different result or error so fundamental as to
threaten [an appellant’s] entitlement to due process of law” must exist. Martin,
207 S.W.3d at 3. With these standards in mind, we turn to Cline’s allegations
of error.
A. Challenges to Indictment and Jury Instructions
Cline first argues the indictment and jury instructions were flawed and
denied him proper notice of the offenses for which he stood charged and
deprived him of a unanimous verdict. We disagree. Cline cannot now, for the
first time on appeal, challenge the indictment as defective as RCr 8.18(1)
plainly requires such assertions be presented in the trial court. Under that
6
rule, “defenses or objections based on defects in the indictment may be raised
only by a motion before trial, and failure to present any such objections
constitutes a waiver thereof. The defective indictment argument, therefore, was
not properly preserved for appellate review.” Wood v. Commonwealth, 567
S.W.2d 121, 123 (Ky. 1978).
Cline contends the jury instructions were not sufficiently specific enough
to ensure the jury would be able to differentiate between the two counts of rape
and thus ensure the verdicts were unanimous. Although this allegation is
unpreserved, we have held “all unanimous-verdict violations constitute
palpable error resulting in manifest injustice.” King v. Commonwealth, 554
S.W.3d 343, 351 (Ky. 2018). The instruction for Count One stated, in pertinent
part: “That in this county on or between July 17, 2014, and October 30, 2015,
before the finding of the indictment herein, [Cline] engaged in sexual
intercourse with [Amy] in his bedroom of his residence after taking [Amy] from
the kitchen into his bedroom[.]” The instruction for Count Two was quite
similar, stating: “That in this county on or between July 17, 2014, and
October 30, 2015, before the finding of the indictment herein, [Cline] engaged
in sexual intercourse with [Amy] in his bedroom of his residence after taking
[Amy] from her bedroom into his bedroom[.]” Cline contends the distinction in
the two instructions is meager and insufficient to assure him of a unanimous
verdict. He avers the testimony from Amy elicited by the Commonwealth at
trial was vague and inconsistent, thereby exacerbating the problem. Cline cites
7
no case law supportive of his claim, but rather recounts additional language he
believes could have been inserted to further distinguish the two counts.
The Commonwealth counters the instructions sufficiently identified and
differentiated the two charged acts under the facts of this case. Amy was twice
raped by Cline on dates about which she was uncertain, but she was certain
where she was when each act began—first in the kitchen, and second in her
bunkbed. The Commonwealth maintains including these distinctions in the
instructions was sufficient. We agree.
Whether the issue is viewed as one of insufficient evidence, or
double jeopardy, or denial of a unanimous verdict, when multiple
offenses are charged in a single indictment, the Commonwealth
must introduce evidence sufficient to prove each offense and to
differentiate each count from the others, and the jury must be
separately instructed on each charged offense.
Id. at 353-54 (quoting Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002)).
Our review of the record reveals the instructions appropriately included the
statutory elements of the offense for which Cline stood charged. Each of the
instructions further identifies the specific act, based on the evidence adduced
at trial, the jury was to consider in making its decision. Cline was charged
with two counts of rape and Amy testified as to only two instances of rape, both
of which occurred in Cline’s bed. Amy distinguished the two instances by
telling the jury her location when Cline began the assaults along with other
unique facts specific to the different offenses. Inclusion of the differentiating
starting locations pertaining to each instance of rape was sufficient to ensure
no uncertainty exists as to the crime the jury convicted Cline of on each count.
8
Cline was not deprived of a unanimous verdict. There was no error, palpable
or otherwise.
B. Entitlement to Directed Verdict
Cline next argues the evidence adduced at trial was insufficient to
convict him of either count of rape and he was therefore entitled to a directed
verdict. As previously noted, Cline asserts this argument was preserved by his
directed verdict motions, while the Commonwealth contends it is unpreserved
because no specific reasons were presented supportive of the motions. We
agree with the Commonwealth.
Our review of the record reveals trial counsel thrice made perfunctory
motions for directed verdict, offering no indication or argument as to the
grounds for same. As we stated recently, “[t]he defendant’s motions for
directed verdict must be specific about the particular charge the
Commonwealth failed to prove, and state the specific element(s) of that charge
the Commonwealth failed to prove.” Ray v. Commonwealth, 611 S.W.3d 250,
257-58 (Ky. 2020), cert. denied, No. 20-8236, 2021 WL 4508153 (Oct. 4, 2021).
See also CR5 50.01 (“A motion for a directed verdict shall state the specific
grounds therefor.”); Potts v. Commonwealth, 172 S.W.3d 345, 347-48 (Ky.
2005) (mere motion for directed verdict without stating specific ground for relief
inadequate to preserve issue on review). We do not believe this issue was
properly preserved for review.
5 Kentucky Rules of Civil Procedure.
9
Nevertheless, we believe there was sufficient evidence to support Cline’s
convictions. “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.”
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). At trial, Amy
testified to two specific instances of rape perpetrated by Cline. Although Cline
and April offered differing testimony challenging Amy’s version of events, the
jury was free to believe Amy’s testimony, and it was not clearly unreasonable
for them to do so. Cline was not entitled to a directed verdict of acquittal.
C. Introduction of Victim Impact Testimony in Guilt Phase
Next, Cline asserts the Commonwealth improperly introduced victim
impact testimony during the guilt phase when Amy’s grandmother was
permitted to testify regarding Amy’s demeanor before and after the rapes.
Although he objected during the grandmother’s testimony, the grounds for that
objection were wholly different from the challenge espoused on appeal.
Conceding the lack of preservation, Cline requests palpable error review.
During her testimony, the grandmother was asked to provide her
observations of Amy’s demeanor and emotional state in the time leading up to
the rapes. She testified Amy was a normal little girl growing up. Following the
incidents, Amy became sad, withdrawn, and would have little to say when
returning from visits with April at Cline’s residence. In the months preceding
trial, Amy had begun acting more normal. The grandmother was not asked to
explain the significance of Amy’s behavior nor did she elaborate on her belief as
10
to the root cause of the changes. She merely recounted her personal
observations.
Evidence of emotional injuries is directly relevant to prove an alleged
victim was sexually assaulted and becomes more relevant when the alleged
perpetrator denies the improper conduct occurred. Dickerson v.
Commonwealth, 174 S.W.3d 451, 471-72 (Ky. 2005). Behaviors that are within
the common experience of ordinary people have nearly-universally recognized
significance and are admissible when probative of a fact in issue. Blount v.
Commonwealth, 392 S.W.3d 393, 397 n.3 (Ky. 2013). The testimony elicited by
the Commonwealth was nothing more than a common experience of a
grandmother watching her grandchild grow and observing her demeanor.
There was no attempt to arouse sympathy or to inflame the jury. Introduction
of the testimony was proper, and no palpable error occurred.
D. Detective Cook’s Testimony
Finally, Cline contends the trial court erred in permitting Detective Cook
to testify about the effect of delayed reporting of sexual offenses on
investigations and the collection of evidence. He asserts this testimony acted
to lower the Commonwealth’s burden of proof by explaining away the lack of
physical evidence. Cline further argues the Detective’s testimony justifying the
delay in Amy’s disclosure improperly bolstered the Commonwealth’s case by
implying such delays were normal in child sexual assault cases. He likens
Detective Cook’s statements to prohibited Child Sexual Abuse Accommodation
11
Syndrome (CSAAS) testimony.6 Acknowledging a failure of preservation, Cline
requests palpable error review. We discern no error.
Detective Cook generally outlined the differences in investigative
techniques and procedures in recent sexual assault cases and those for which
reporting does not occur for a significant period of time. His testimony was
mainly centered on how he conducted the investigation into Amy’s allegations
and why he did not make attempts to collect physical evidence. Contrary to
Cline’s assertions, none of Detective Cook’s statements crossed into the
prohibited realm of CSAAS testimony. He offered no opinion on the
commonness or normality of delayed reporting in child rape cases. Detective
Cook made no insinuation Amy’s delay in speaking out was evidence the rapes
happened. He did not attempt to bolster Amy’s testimony. He did not suggest
the delay was consistent with other child sex abuse victims. In short, the
detective’s testimony, which focused on his investigative practices, was not
improper. Cline’s allegation to the contrary is without merit. There was no
error.
III. Conclusion
For the foregoing reasons, the judgment of the Warren Circuit Court is
affirmed.
All sitting. All concur.
“[T]his Court has consistently held that the symptoms, or signs, of the ‘so-
6
called’ child sexual abuse accommodation syndrome are not admissible” because they
lack scientific acceptance. Blount, 392 S.W.3d at 395.
12
COUNSEL FOR APPELLANT:
Michael Lawrence Goodwin
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
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