Eric Alderson v. Commonwealth of Kentucky

RENDERED: JUNE 15, 2023
TO BE PUBLISHED

Supreme Court of Kentucky
2022-SC-0071-MR

ERIC ALDERSON APPELLANT

ON APPEAL FROM BALLARD CIRCUIT COURT
V. HONORABLE TIMOTHY A. LANGFORD, JUDGE
NO. 21-CR-00004

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE THOMPSON

REVERSING AND REMANDING

After a jury trial, Eric Alderson was convicted by the Ballard Circuit

Court of two counts of first-degree rape and two counts of first-degree sexual

abuse. He received a total sentence of thirty years. Alderson appeals his

conviction as a matter of right, asserting trial errors and a sentencing error. We

reverse his conviction and sentence and remand for a new trial because the

trial court erred in permitting the Commonwealth to present victim impact

testimony during the guilt phase of the trial and this error affected Alderson’s

substantial rights. We additionally address the other issues raised which could

require further relief and to provide guidance to the extent these issues are

likely to recur on retrial.
 I. FACTUAL BACKGROUND

Alderson, nineteen, lived at home with his mother, stepfather, younger

sister (A.A.), and younger brother. A.A. was in high school and often had one of

her friends come over to her house and spend the night. Alderson spent time

“hanging out” in A.A.’s upstairs bedroom with A.A. and her guests. Alderson

was alleged to have raped or sexually abused three of his younger sister’s

friends, A.R., R.D, and K.M. (the girls), at four separate sleepovers, after the

girls had fallen asleep. At the time of each occurrence, only one of the girls was

having a sleepover with A.A. and each of the girls was either fourteen or fifteen

years old.

A. K.M.’s Testimony Regarding the Initial First-Degree Sexual
Abuse Charge (Count III)

According to testimony by K.M., on October 5, 2020, she spent the night

with A.A. and woke up feeling something cold down her shirt and found that

Alderson had his hands down her pants and shirt. He was touching her breast,

nipple and rubbing her vagina.

B. A.R.’s Testimony Regarding the First-Degree Rape Charge
(Count I)

A.R. testified that on October 16, 2020, Alderson hung out with her and

A.A. in A.A.’s bedroom and watched a movie with them. They fell asleep on the

bed with Alderson still in the room. A.R. testified she woke up when she felt

Alderson’s hand in her pants; he was sitting beside her and had his finger

inside her vagina. He stopped when she woke up.

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 A.R. testified she tied her sweatpants “really tight,” went back to sleep

and woke up again at 4 a.m. to find Alderson doing the same thing, having his

finger inside her vagina. A.R. then moved around to get him to stop.

C. K.M.’s Testimony Regarding the Subsequent First-Degree
Sexual Abuse Charge (Count IV)

K.M. testified to a second incident when she spent the night with A.A.

again on December 28, 2020. K.M. explained that Alderson made her

uncomfortable by sitting too close to her. Fearing that Alderson would sleep in

A.A.’s room, K.M. put on her sweatshirt and sweatpants over her shirt and

shorts, tied them tightly, and lay down on the floor of A.A.’s room covered by

two blankets. K.M. testified she stayed awake as long as she could but awoke

to feeling a crawling sensation in her vaginal area and saw Alderson sitting in

front of her with his hand in her blankets, with one hand on her vagina and

another hand holding the blanket up. He moved his hand away, told her she

looked cold, and got her another blanket.

K.M. testified she fell back asleep, awoke again to the same feeling, and

found that Alderson had his hands outside of her pants and was rubbing her

vagina. She moved, he removed his hand and then put it back again but

stopped after she sat up and pretended to have a phone call.

D. R.D.’s Testimony Regarding the First-Degree Rape Charge
(Count II)

R.D. testified she spent the night with A.A. on January 1, 2021, and

Alderson made her uncomfortable by trying to touch her leg and asking her to

sit by him. Then when A.A. was showering and R.D. went downstairs, Alderson

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went downstairs too, put his hand on her leg again and then made a hand

gesture that R.D. interpreted as meaning “suck his dick.” When R.D. returned

to A.A.’s room, Alderson kept trying to get her to try to sit by him and A.A.

while they watched a show.

R.D. testified that after Alderson and A.A. fell asleep in A.A.’s room, R.D.

went downstairs to the living room and sat on a couch, with A.A.’s little brother

on the other couch. She fell asleep there and woke up to Alderson pulling her

pants down. R.D. testified she started crying, saying “No. Stop.” Alderson stuck

his fingers in her vagina and ignored her requests to stop and R.D. finally

pushed herself away. According to R.D., Alderson then stared at her, got up

and then told her she knew where to find him if she changed her mind.

R.D. told A.A. later that day what had happened.

E. Report of the Incidents

On February 23, 2021, R.D. reported what Alderson had done to her

high school counselor. The next day, K.M. and A.R. made a report to the same

counselor. The girls were all interviewed by a detective and then at Lotus, a

child advocacy center, by a child forensic interviewer. The Lotus interviews

were recorded. K.M. and R.D. received ongoing counseling at Lotus after they

made their reports.

F. Alderson’s Testimony

Alderson testified in his own defense and stated he was close to his sister

A.A. and hung out with A.A. and her friends.

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 Alderson did not recall any incident involving A.R., but acknowledged she

was frequently at his house. He denied all of her allegations.

Alderson recalled an incident with K.M. but did not recall when it

occurred. He stated he had misplaced his e-cigarette after waking up in A.A.’s

bed, felt around K.M.’s blankets for it and that woke her up. He denied patting

anything but the top of the blankets or touching K.M. in an intimate matter but

recalled bringing her a blanket because he noticed she was cold.

Alderson testified he recalled hanging out with A.A. and R.D. and

watching a movie, R.D. was acting odd, he followed her downstairs and asked

what was wrong, motioning at her to try to get her attention but she would not

look at him. He went to bed in his room.

The next morning, he woke up and went to the kitchen to get something

to eat. The kitchen is across from the living room. He saw R.D. asleep on the

ottoman, his brother asleep on a couch, and tapped R.D. on the shoulder to

ask her if everything was okay and she “freaked out,” swatted at him, did not

say anything and acted “frightened beyond belief.” Alderson told her that he

was here for her if she needed anything and told her he was not into raping a

kid.

Alderson stated he went back to bed but before going to work he went to

A.A.’s room and R.D. was there. A.A. pushed Alderson out of the room, told

him that she hated him and that she never wanted to see him again.

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 Alderson testified that after further reflection on that night, he realized

he was acting in a playful and flirty manner and must have made R.D. feel

uncomfortable but he denied touching her inappropriately.

II. PROCEDURAL BACKGROUND

On April 27, 2021, Alderson was indicted on four counts for his conduct

on four separate occasions regarding the girls. Two counts were for first-degree

rape of a minor “incapable of consent/physically helpless” based on Alderson’s

digital penetration two of the girls’ vaginas1: A.R. (count one) and R.D. (count

two). Two counts were for first-degree sexual abuse of K.M. (counts three and

four) for the two incidents of touching her genitals.

Prior to trial, Alderson’s motion for separate trials was denied on the

basis that the circumstances involving each girl were similar enough that this

evidence would also be admissible if the trials were separated.

During the Commonwealth’s case in chief, the Commonwealth Attorney

asked each of the girls how their rape or assault had affected their lives.

Alderson objected to this question regarding K.M., but his objection was

overruled. He did not make any objection to this question being asked of the

other girls.

1 In Kentucky, first-degree rape includes “sexual intercourse with another

person” either by “forcible compulsion” or “who is incapable of consent because” that
person “[i]s physically helpless[.]” Kentucky Revised Statutes (KRS) 510.040(1).
“Sexual intercourse” is defined as including “penetration [however slight] of the sex
organs of one person by any body part or a foreign object manipulated by another
person.” KRS 510.010(8).

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 After the Commonwealth completed its case in chief, Alderson moved for

a directed verdict on the rape charge regarding R.D. as she was not physically

helpless as stated in the indictment because she was awake before penetration.

The trial court granted this motion and then, over Alderson’s objection, allowed

the Commonwealth to amend this count to rape by forcible penetration.

Alderson wished to impeach two of the girls’ trial testimony regarding

inconsistencies with their prior statements but declined to do so after the trial

court signaled its willingness to let the girls’ whole recorded interviews and

written statements come in if he were to do so. Rather than risk this outcome,

Alderson put on this testimony by avowal.

The jury convicted Alderson as charged on the two counts of first-degree

rape and two counts of first-degree sexual abuse. The jury recommended

Alderson serve ten years on each of the rape convictions and five years on each

of the sexual abuse convictions, with these sentences be served consecutively

for a total of thirty years of incarceration. On January 21, 2022, the trial court

sentenced Alderson in accordance with the jury’s recommendation, waiving

court costs but imposing jail fees.

III. ANALYSIS

A. Admission of testimony about how the alleged sexual assaults
affected the girls in the merits phase constituted
impermissible victim impact testimony which deprived
Alderson of a fair trial.—Partially preserved

During the direct examination of K.M. (who was the first of the girls to

testify), the Commonwealth Attorney asked K.M. “to tell the jury how all of this

happening has affected you, how it’s changed your life.” Alderson objected to
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this question on relevancy grounds and during the subsequent bench

conference explained it sounded like the Commonwealth Attorney was soliciting

victim impact evidence that was not appropriate at this stage of the

proceedings. The Commonwealth Attorney responded that K.M.’s answer would

go to credibility because victims who are traumatized “will have symptoms of

trauma that the jury should be aware of to use in the analysis of their

credibility.” The trial court ruled “I’ll give you some limited latitude, don’t dwell

on this, but it could go to credibility.”

The following direct examination then occurred:

CW: Alright so, let’s kind of start at the beginning. I just want
you to tell me and the jury how this has affected you, how
it’s changed your life going forward, and what has happened
to you because of this. You can take as long as you want.

KM: I have to go to therapy once a week, every week at a clinic in
Paducah for abuse. I often have to take medicine to sleep at
night, and even if I do end up getting sleep, I have, I have
recent night terrors most nights. It’s hard for me to be
around family members that are male because I fear being
close to them now. I often have flashbacks to the night in
school and I’ll have to go to the counselor’s office to
recuperate, I guess. Um, a lot of my friends at school found
out and most people walk on eggshells around me which
sucks because, uh, it took away my high school experience,
my first year of high school. I can’t see my best friend
anymore because her house is my crime scene. And I’m
scared all the time. It’s hard to . . .

DA: Judge, may we approach?

At the bench conference, Alderson argued K.M.’s answer had gone far

beyond what the trial court had allowed and constituted pure victim impact

testimony as K.M. was talking about how other people treat her. The trial court

said it was sustaining the objection going forward. The trial court then clarified
8
that K.M. was allowed to answer how it affected her, but she could not go any

further.

During the direct testimony of A.R., the following exchange took place:

CW: So, I just kind of want you to tell me and the jury, how did
this happening affect you going forward?

AR: It made me very depressed, and I couldn’t trust. I still can’t
really trust anyone that well, and [it] makes me very
uncomfortable in some situations I’m in, and I couldn’t hang
out with my best friend for a long time because she came
over to my house once, but like it just kind of reminded me
of the whole situation and when I went over there on
February 13th, it just like brought me back a lot so, and my
grades really got bad. I got on medicine and I couldn’t sleep
for a really long time, just scared.

Alderson did not object to this question.

During the direct testimony of R.D., the following exchange took place:

CW: Just for the jury and myself, can you please tell us how this
happening has affected you and how it’s changed your life
going forward.

RD: It’s made me really uncomfortable around a lot of people.
I’ve been really scared of a lot of people since then.

These statements were then used by the Commonwealth in its guilt

phase closing argument as follows:

What happens when all three people harmed that were harmed by
the defendant Eric Alderson, K.M., R.D., and A.R., what happens
when all three of them get up on the stand and relate to you the
worst things that have ever happened to them, and how they have
been affected, how they have developed mental issues because of
it, how they’ve been harmed, how their status in the community
has been affected, how they have suffered because of what
happened.

These statements were also referenced by the Commonwealth in its

penalty phase closing argument:
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 During the proof phase I had each victim testify to you about how
what had been done to them affected them. At that time the
testimony was about credibility, to prove that their trauma was
real and therefore the traumatic event was real. And I want you to
think back on that.

Initially, we must consider whether this issue was preserved as to each

girl’s testimony. Alderson argues his objection to the question during K.M.’s

testimony should sufficiently preserve it for both her testimony and the

identical questions asked of the other girls later, but requests palpable error

review if he is incorrect. The Commonwealth disagrees, arguing that Alderson

waived any objection to the question being asked of the other girls as he failed

to either request a continuing objection or to object to these questions when

they were made. Alderson argues in his reply brief that his objection and the

trial court’s ruling on his objection, “should apply to the exact same question

as to the two other alleged victims” as “[t]he initial objection put the court on

notice that the defense believed the evidence should have been excluded.”

We recognize that the trial court’s ruling, that it was sustaining the

objection going forward, is subject to two interpretations: it was sustaining the

objection as to K.M.’s further testimony or it was sustaining the objection as to

any of the girls being asked such a question. However, we do not believe this

question needs to be resolved, or the question of preservation addressed

further, because we are confident that allowing the victim impact testimony

from K.M. was harmful to Alderson and deprived him of a fair trial, and that

the addition of the other girls’ victim impact testimony was sufficient to

constitute palpable error.

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 Alderson argues that the questions asked of the girls were designed to

elicit “victim impact” evidence, which is limited to the sentencing phase of the

trial pursuant to KRS 532.055(2)(a)7 which provides for truth-in-sentencing.

KRS 532.055(2)(a)7 specifies that during the sentencing phase of the trial, the

Commonwealth is allowed to offer evidence regarding “[t]he impact of the crime

upon the victim or victims, as defined in KRS 421.500, including a description

of the nature and extent of any physical, psychological, or financial harm

suffered by the victim or victims[.]” Alderson argues permitting such evidence

during the guilt phase of his trial is a reversable error. He also argues that

such evidence was not admissible for credibility purposes as Child Sex Abuse

Accommodation Syndrome (CSAAS) has no scientific support and cannot be

used to identify children that have been abused, their behavior after the alleged

abuse cannot establish that their trauma was real and, therefore, the

traumatic event was real (as the Commonwealth Attorney stated was done

during the proof phase). He additionally argues allowing such testimony

impermissibly allowed the girls to vouch for their own credibility and each

other’s credibility.

The Commonwealth counters that once the girls’ credibility was attacked,

it was appropriate to ask each victim just one question to support their

credibility and that questions regarding therapy are not improper. The

Commonwealth argues Alderson had already questioned the girls’ credibility in

his opening statement regarding it being a “he said, she said” case. The

Commonwealth explains that “Alderson’s defense focused exclusively on the

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credibility and recollection of the juvenile victims” with him questioning K.M.

as to why she would return to the house after being sexually assaulted and

attempting to impeach A.R. and R.D. “with alleged prior inconsistent

statements in which they allegedly named someone else as the perpetrator of

the sexual assaults.” The Commonwealth further claims that even if there were

error as to K.M.’s testimony, it was harmless and would not have changed the

outcome of the trial given the strong case against Alderson formed by the

consistent testimony of the girls which was only countered by Alderson’s self-

serving testimony.

We have before us for consideration the intersection of three different

rules: (1) victim-impact evidence is typically inadmissible until the penalty

phase of the trial; (2) victim background evidence is generally admissible; and

(3) a witness can generally bolster her own testimony after her credibility has

been attacked. See Roe v. Commonwealth, 493 S.W.3d 814, 823 (Ky. 2015)

(“The prohibition of victim-impact evidence during the criminal responsibility

phase of trial is deeply rooted in both our precedent and Kentucky statutory

law.”); Bennett v. Commonwealth, 978 S.W.2d 322, 325-26 (Ky. 1998)

(explaining that victim background information is generally admissible); Tackett

v. Commonwealth, 445 S.W.3d 20, 32 (Ky. 2014) (“A witness is not permitted to

bolster her own testimony unless and until her credibility has been attacked.”).

As explained in Tackett, victim impact evidence masquerading as victim

background evidence is not permissible as the “introduction of victim impact

evidence during the guilt phase is reversible error.” Id. at 33 (quoting Ernst v.

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Commonwealth, 160 S.W.3d 744, 763 (Ky. 2005), overruled on other grounds by

Mason v. Commonwealth, 559 S.W.3d 337, 341-42 (Ky. 2018)). One way to

determine the difference between victim impact evidence and victim

background evidence is whether the evidence is “aimed primarily at appealing

to the jurors’ sympathies” or “providing an understanding of the nature of the

crime[.]” Tackett, 445 S.W.3d at 33. See Ernst, 160 S.W.3d at 763–64

(comparing collecting cases of appropriate victim background evidence

contrasted with cases in which improper victim impact testimony was made).

“[H]ighly inflammatory” evidence with “little or no probative value” which

concerns the “terrible loss” suffered based on the crime is not appropriate for

introduction during the guilt phase of a trial. Ice v. Commonwealth, 667 S.W.2d

675-76 (Ky. 1984). Arousing the jurors’ sympathy “although relevant to the

issue of penalty, is largely irrelevant to the issue of guilt or innocence.” Bennett,

978 S.W.2d at 325.

K.M.’s answer provided a great deal of information about how her life had

changed for the worse after the crime was committed and had a long-term

impact on her life. When it is evaluated for whether it constituted victim impact

testimony or victim background information, by its very nature it constitutes

victim impact testimony because it established the terrible consequences of the

defendant’s actions on her life going forward and was likely to arouse the

jurors’ sympathy.

The next consideration is whether this question was nevertheless

appropriate to bolster K.M.’s credibility because, as the Commonwealth argued,

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Alderson attacked her credibility during his opening statement on the basis

that this case was a “she said, he said” type of case.

The Commonwealth heavily relies on Tackett, but Tackett’s appeal was

on a different procedural posture than Alderson’s because Tackett did not

preserve the claimed error through objection or put on any evidence in his

defense. Tackett, 445 S.W.3d at 26. Under those circumstances, it would have

been very difficult for any defendant to establish manifest injustice or a

different result at trial in the absence of this evidence.

Having reviewed Alderson’s opening statement, we disagree with the

Commonwealth’s premise and conclusion. The defense stressed the importance

of keeping an open mind throughout the trial, analogizing the progression of

the trial to seeing everyone adding to a painting, with the jury not knowing

what the painting would look like until the end. The defense explained the

evidence presented would be exclusively testimonial and then stated: “At the

end of the case what you’re gonna find is it is essentially a ‘he said, she said’

situation and you won’t know the entire story until you’ve heard from every

single witness here today, and at that point you’ll have to make up your mind

about this case.”

Alderson did not make any particular attack on the girls’ credibility in

this opening statement, certainly nothing to justify the Commonwealth

Attorney asking this question and soliciting very inflammatory information

before Alderson had even cross-examined the girls about any inconsistencies in

their testimony. The defense’s opening statement innocuously informed the

14
jurors about what sort of evidence to expect and cautioned them to reserve

judgment until the end of proof.

Such an opening statement cannot properly be interpreted as attacking

the girls’ credibility; therefore, it cannot justify the Commonwealth Attorney

asking such questions to bolster their credibility on direct examination.

Otherwise, in practically all cases, bolstering evidence would automatically be

allowed, as credibility is typically at issue when a defendant claims actual

innocence while the victims and other witnesses provide evidence that the

crime in fact occurred.

Additionally, even had Alderson attacked the girls’ credibility in his

opening statement, we disagree with the Commonwealth’s implied premise that

this would justify rehabilitation by any means. Victim impact testimony is not

appropriate for bolstering credibility. Instead, another method of bolstering

credibility could have been used.

A vigorous defense was provided in this case, with Alderson testifying

and denying he engaged in any inappropriate conduct with the girls. Because

there was a lack of any physical evidence, the perception of the girls as victims

who were suffering long-term damage would arouse the jurors’ sympathy and

could result in a verdict rooted in that sympathy rather than based on the

evidence properly admitted.

K.M. testified that after the assault she had to go to therapy, take

sleeping pills to combat recent night terrors, feared male family members, had

flashbacks and went to the counselor’s office to recuperate, once people found

15
out they treated her differently, she could not visit A.A.’s house because it was

the crime scene, and she is scared all of the time. K.M.’s testimony was devoted

to her own recitation of her emotional state and how she had suffered since

reporting the assault. As such, this testimony had little relevancy as to whether

the crime had in fact occurred and at least some of what she described could

be the result of the criminal process itself or other people learning about the

assault. Admitting such evidence at this stage of the trial had little relevance

and even if relevant was clearly more prejudicial than probative and could

mislead the jury as to what were appropriate bases for finding guilt.

Similarly, while the victim impact testimony from the other girls was not

as devastating as K.M.’s statement, the picture they formed for the jury was

highly inflammatory and only added to the problematic nature of what had

been allowed as to K.M. The aftereffects A.R. testified to were that she cannot

trust, is now uncomfortable, had difficulty being in A.A.’s house after reporting

the incident, her grades declined, she had to go on medicine, and she couldn’t

sleep. R.D. indicated that she is now uncomfortable and scared around people.

Allowing repeated and extensive victim impact testimony in the guilt

phase was a serious and glaring error. Such testimony was not background

evidence, was premature as the girls’ credibility had not been attacked yet (and

in any event would have been inappropriate for bolstering their credibility) and

was not relevant to establish the underlying crime. There is no acceptable

justification whatsoever for admitting victim impact testimony at this phase of

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the criminal trial and this error impacted Alderson’s substantial rights.

Therefore, reversal is required for a new trial.

B. Granting a directed verdict on the rape count involving R.D.
being “physically helpless” but then allowing the
Commonwealth to amend the indictment to rape by “forcible
compulsion” was technically improper but harmless as the
amendment did not prejudice Alderson.—Preserved

During the trial, after the Commonwealth completed its case, Alderson

moved for a directed verdict on the rape of R.D. as the evidence did not show

she was “physically helpless.” He explained R.D.’s testimony was that she had

awoken to Alderson pulling her pants down, with the penetration occurring

after she was awake.

The trial court agreed that a directed verdict should be granted on that

basis but instructed the Commonwealth Attorney to file a motion to amend

that count of the indictment to forcible compulsion as that was a better fit with

the evidence, stating the court would grant such an amendment. A written

motion and an order to that effect were filed and entered that day.

RCr 6.16 provides:

The court may permit an indictment, information, complaint or
citation to be amended any time before verdict or finding if no
additional or different offense is charged and if substantial rights
of the defendant are not prejudiced. If justice requires, however,
the court shall grant the defendant a continuance when such an
amendment is permitted.

Alderson argues the trial court abused its discretion in allowing for this

amendment because it had already sustained the directed verdict as to R.D.

not being physically helpless and, thus, could not order this count amended,

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relying on Blane v. Commonwealth, 364 S.W.3d 140, 150-51 (Ky. 2012),

abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky.

2015). Alderson emphasizes he could not be guilty of the original count based

on R.D.’s testimony that she woke up and said “no” prior to the penetration. He

argues that amending the indictment was inappropriate because it was

presenting a completely new theory of the case, even though R.D.’s testimony

was consistent with her disclosure to Lotus which had been produced for him,

because the defense had prepared its case on the theory of the specific format

of rape that was charged. Alderson argues that under the circumstances he

was prejudiced by the amendment as it was made after R.D. testified and

“[h]aving been tasked with defending four counts of various sexual offenses

involving three different girls, it was an insurmountable task for the defense to

have to switch gears and defend one count under a forcible compulsion theory

and three counts under the physically helpless theory.”

Accordingly, Alderson argues the trial court lacked jurisdiction over the

subject matter of the offense, had no authority to submit the instruction to the

jury, allow it to return a verdict on such a theory, or sentence him for it. He

concludes that his rights were violated under the federal and Kentucky

constitution and his conviction must be reversed and dismissed with prejudice

as double jeopardy bars retrial of this count.

We disagree. Blane involved an amendment to an “additional or different

offense” of trafficking in greater than eight ounces of marijuana, KRS

218A.1421(3), after a directed verdict had been granted to the original offense

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of trafficking in a controlled substance within 1,000 yards of a school, KRS

218A.1411. Blane, 364 S.W.3d at 150-51. The original offense did not require a

specific quantity of marijuana be involved under the definition provided for

“traffic” in KRS 218A.010(56). Therefore, not only was it a different KRS

number, but also was truly a different crime.

In contrast, first-degree rape allows for conviction through either

engaging in sexual intercourse with someone “by forcible compulsion” or with

someone “who is incapable of consent because [that person] . . . ‘[i]s physically

helpless[.]’ ” KRS 510.040(1). Thus, the amendment did not constitute a change

in the charge itself, only the circumstances regarding how it was committed.

Since Blane, Justice v. Commonwealth, 636 S.W.3d 407, 411-12 (Ky.

2021), abrogated on other grounds by Sexton v. Commonwealth, 647 S.W.3d

227, 232 (Ky. 2022), was decided. In Justice, the Court distinguished Blane

and agreed with the Commonwealth that it was appropriate to amend the

indictment to conform to the evidence adduced at trial, to dismiss the charge of

rape and submit the case to the jury on the lesser-included offense of

attempted rape as the Commonwealth’s case amply supported this change

without the introduction of any additional evidence, the amendment was

permitted by RCr 6.16, did not name a new or additional offense, and

importantly “Justice’s defense—a complete denial of any sexual contact with

the victim—was not prejudiced.” Justice, 636 S.W.3d at 412. The Court

acknowledged that pursuant to its ruling in Blane, although “the trial court

erred by failing to have unequivocally withdrawn the directed verdict and then

19
considered amending the indictment to allow for a lesser-included offense, the

error is harmless because Justice suffered no prejudice by defending against a

lesser-included offense of the originally indicted charge.” Justice, 636 S.W.3d at

412.

Whether an amendment of an indictment during a trial to allow for a

different method of committing the same crime is permissible, is a highly fact-

specific inquiry depending on the evidence available to the defendant, the

defenses offered and whether the defendant would be prejudiced (beyond the

“prejudice” of not being wholly relieved from having to defend against a charge

at all). In Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537-38 (Ky. 1997), an

amendment during the trial did cause prejudice because it radically changed

the nature of the crime; originally the appellants were indicted for being

principals and accomplices to a murder, but as amended none of the

defendants had committed the murder and had instead solicited an unnamed

and unknown person to kill the victim. The appellants could not adequately

defend against this charge because their defense had focused on establishing

alibis, and it was fundamentally unfair to deny them a continuance to

investigate and refute the additional accusations. In contrast, in

Commonwealth v. Combs, 316 S.W.3d 877, 879-80 (Ky. 2010), an amendment

before trial from trafficking to complicity to trafficking was appropriate because

complicity was not an additional or different offense; the essential facts

remained the same and the appellant was aware of the person he was to have

20
been complicit with because the appellant had subpoenaed her to testify at the

trial.

While the trial court should have followed the appropriate method of

amending Alderson’s indictment, rather than dismissing the charge and then

allowing the indictment to be amended, this error was harmless because

Alderson was not thereby prejudiced. Alderson was aware from the disclosures

provided to him from R.D.’s Lotus interview that R.D. stated she was awake

and saying “no” before the rape occurred and the indictment was still for first-

degree rape. His denial of any untoward behavior regarding R.D. did not need

any alteration to equally defend against this alternative method of how the rape

occurred. Additionally, Alderson failed to request a continuance, which belies

his current argument that he could not adequately defend against the amended

charge. Therefore, no prejudice was established in allowing the amendment

and this count need not be dismissed with prejudice. Given that we are

reversing and remanding on another issue, Alderson will have a new

opportunity to prepare for and present whatever defense he wishes to this

amended charge.

C. Denying the motion for separate trials as to each victim did
not violate Alderson’s right to due process because evidence as
to each crime would have properly been admissible pursuant
to Kentucky Rules of Evidence (KRE) 404(b) had separate trials
taken place.—Preserved

On October 11, 2021, Alderson filed a motion for separate trials, arguing

that none of the girls were witnesses to the others’ allegations and he would be

prejudiced pursuant to RCr 8.31 because the joint trials would allow

21
inadmissible character evidence against him to be admitted. The

Commonwealth Attorney countered that joinder was appropriate because the

offenses were of the same or similar character, Alderson’s behavior

demonstrated a recurring pattern, Alderson engaged in a signature crime with

a discernable modus operandi, and even if the trials were separate that

evidence of the crimes Alderson committed against all the girls would thereby

be admissible.

After a hearing, the trial court agreed with the Commonwealth and

denied Alderson’s motion, opining it was not prejudicial to Alderson to have

one trial because if there were separate trials the evidence regarding the other

crimes could still be admitted “to show opportunity, intent, preparation and

plan” but not identity because everyone knew who he was. The trial court

explained that Alderson “scoped” the girls out, waited until they were asleep,

kept going back and prepared for assaulting them while they were vulnerable.

Alderson then suggested that a partial cure could be had through an

admonition. The trial court gave the jury the admonition that Alderson

suggested in the jury instructions:

Offenses to be Considered Separately

The Defendant has been charged with multiple offenses. You
should consider each offense separately. You must return a not
guilty verdict as to any offense for which you have reasonable
doubt that the Commonwealth has proven every element beyond a
reasonable doubt.

Alderson argues he was denied his right to due process by having to

defend against all the charges together and was prejudiced in having

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inadmissible character evidence admitted when none of the KRE 404(b)

exceptions applied. He also argues it was unfair to allow the girls’ testimony to

bolster one another when they had no personal knowledge of the charges

involving each other. In support of his bolstering argument, he points to the

Commonwealth Attorney’s closing argument in which it was argued that

multiple instances of the same crime provided support for the fact that they

had occurred.

While Alderson acknowledges that joinder can be permitted pursuant to

RCr 6.18, if the crimes are of the same or similar character, or part of a

common scheme or plan, he argues that pursuant to RCr 8.31, the trials

should have been severed because having the offenses joined prejudiced him.

In support of this argument, he relies on Peacher v. Commonwealth, 391

S.W.3d 821, 837-38 (Ky. 2013), in which reversal was granted for not severing

the crimes of murder against one child and a criminal abuse charge against

another where both children were left in Peacher’s care, but there was not a

common scheme or plan behind his actions toward them.

Alderson argues he was prejudiced because the evidence as to the other

assaults and rapes would have been inadmissible had the trials been severed.

Alderson specifically denies that the evidence showed he had a plan as the

specifics of how all the alleged illegal encounters played out differed with each

of the girls.

If the evidence presented at trial regarding Alderson’s conduct toward the

girls would have been admissible during separate trials under KRE 404(b), he

23
cannot establish prejudice in being denied his motion to sever the trials.

Newcomb v. Commonwealth, 410 S.W.3d 63, 73 (Ky. 2013). KRE 404(a)

provides a prohibition on using the evidence of a person’s character or trait of

character “for the purpose of proving conformity therewith[.]” KRE 404(b)

provides that while “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith” that it may be admissible “[i]f offered for some other

purpose, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident[.]”

As noted in Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007), “that

list of exceptions is illustrative, not exhaustive.” Evidence of prior sexual

misconduct can be

offered to show a modus operandi for the purpose of proving
motive, intent, knowledge, and the absence of mistake or accident,
i.e., contrary to his statements to the police, Appellee knew what
he was doing (knowledge), he did it on purpose (intent, absence of
mistake or accident), and he did it for his own sexual gratification
(motive).

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

[T]o prove the elements of a subsequent offense by evidence of
modus operandi, the facts surrounding the prior misconduct must
be so strikingly similar to the charged offense as to create a
reasonable probability that (1) the acts were committed by the
same person, and/or (2) the acts were accompanied by the same
mens rea.

Id. Conduct that is a necessary element to establish the crime, such as the

victims’ ages and the type of sexual contact involved “is not strong evidence of

a distinct pattern of conduct sufficient to meet the modus operandi exception.”

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Clark, 223 S.W.3d at 98. “Instead, the modus operandi exception is met only if

the conduct that meets the statutory elements evidences such a distinctive

pattern as to rise to the level of a signature crime.” Id.

Newcomb and English are more closely analogous to Alderson’s situation

than Peacher. In Newcomb, two rape offenses were joined and this joinder was

upheld based on Newcomb having a common modus operandi in committing

rape against the two women even though some of the specifics of the rapes

varied. As to each woman, Newcomb had a similar, pre-existing relationship

but had not been romantically involved with them, they were the same gender,

race and approximate age, with the attacks beginning and continuing in a

similar manner. Newcomb, 410 S.W.3d at 75. While the Court pointed out that

there were some differences between the attacks, it did not think those

differences were dispositive. Id. at 76. The Court also emphasized that while

“reasonable minds can differ on whether the two attacks are so strikingly

similar as to demonstrate a modus operandi[,]” such a determination was

within the trial court’s broad discretion so long as there was not a clear abuse

of that discretion and prejudice. Id. at 77. Additionally, it rejected Newcomb’s

assertion that the credibility of the victims was unfairly bolstered by the

joinder, explaining that “this prejudice is inherent in the joinder of all offenses

and is not undue prejudice.”2 Id.

2 However, because of this inherent prejudice, trial courts must be especially
cognizant that they should not allow the defendant to be prejudiced further by letting
in improper bolstering evidence, as the nature of the joint trial has already bolstered
the complaining witnesses’ credibility.

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 Similarly, in English, 993 S.W.2d at 945, modus operandi evidence was

proper based on sufficient similarity of facts:

In each instance, the victim was a prepubescent female relative of
Appellee’s wife. In fact, the familial relationship with each victim
was the same, except for the generational gap. Each incident
occurred while the victim was a visitor in Appellee’s home and
either on a couch or in a chair, presumably in a living room area
as opposed to, e.g., a bedroom. Each incident occurred while
Appellee’s wife was also present in the home. Finally, each incident
consisted of Appellee touching the victim’s vaginal area.

While certain specifics may have varied, such as whether the assaults

occurred in A.A.’s room or the living room, and that A.R. woke up before

Alderson penetrated her, the key modus operandi conduct was that Alderson

only committed these alleged crimes when his sister was having a sleepover

with her friend at the family home, with Alderson beginning to violate each

fourteen- or fifteen-year-old while she was asleep, wherever each was sleeping

in the house, while other family members were also sleeping nearby. These

incidents happened close in time with one another over a span of less than four

months. While the level of violation varied, such violation was consistent as

being only a matter of degree with Alderson consistently using his fingers

(rather than any other body part or instrument) to touch or penetrate the girls’

vaginas. The fact that he desisted with two of the girls when they demonstrated

they were awake and was not dissuaded when the final victim, R.D., awoke, is

not enough to make these acts distinct enough to require separate trials. We

also are confident that had separate trials been granted, the evidence of the

other assaults and rapes would have nevertheless been admissible pursuant to

KRE 404(b). As was the case in Newcomb,
26
 [g]iven the probative value of the strikingly similar
crimes, we cannot say that the prejudice to [Alderson
in having a joint trial] was unreasonable or
unnecessary. So the trial court did not abuse its
discretion by joining the offenses where the evidence
would have been mutually admissible in separate
trials and [Alderson] alleges only the type of prejudice
attendant with all joinder of offenses.

Newcomb, 410 S.W.3d at 78. Therefore, a joint trial will again be allowed on

remand.

D. The ruling that Alderson could not refresh the girls’ testimony
with prior inconsistent statements without opening the door
to the admission of the entirety of their video statements to
Lotus was incorrect.—Preserved

Testimony from K.M., R.D. and their Lotus interviewer, Nicole Wadley,

was inconsistent in some details from what was recorded that K.M. and R.D.

reported to Wadley and the police, with the witnesses either not recalling

certain things or remembering and testifying about them differently from what

had been recorded. Alderson proposed to refresh the witnesses’ memories by

showing them a portion of their Lotus interviews. The Commonwealth Attorney

objected to allowing a portion of any video to be played without admitting the

whole video, noting that the girls may have clarified earlier statements later in

their interviews.

The trial court opined that if Alderson used a document or a video, he

would be “opening the door” to its admittance and stated that a recorded

statement or video would be the best evidence of what the witness said before.

The defense responded that it had no intention of introducing any portion of

the videos into evidence.

27
 The trial court opined that the videos and transcripts of statements were

the “best evidence” of what occurred. The trial court concluded that if the

defense showed part of the videos or the transcripts that the defense “opened

the door” and that it had no intention of allowing the defense to buttress its

questions with these materials without the jury seeing the entire source

material because given the girls’ ages, they communicate differently than

adults. The trial court concluded by clearly stating, “That’s my ruling.”

The defense opted to “not take the chance” that the girls’ entire Lotus

interviews would thereby be admissible and chose not to question these

witnesses about these inconsistent statements during the defense case in chief.

Instead, the defense asked to have the opportunity to proffer the testimony by

avowal outside the viewing of the jury, and the trial court granted that motion,

indicating it was appropriate for Alderson to do that to preserve the error.

Alderson argues that the trial court’s ruling violated his constitutional

right under the due process clause to present his defense through questioning

these witnesses about prior inconsistent statements and abused its discretion

in doing so. He argues it was appropriate under KRE 612 to use prior

statements to refresh the witnesses’ recollection and using statements from the

Lotus video did not open the door to introducing the entire one- and one-half

hour videos of R.D. and K.M. Instead, if he were to use portions of those videos,

under KRE 106 what the Commonwealth could introduce was only the further

portion which ought to be considered contemporaneously with it, not the entire

video which would just be prior consistent statements. Alderson argues he was

28
prejudiced by not being able to show the jury that R.D. initially denied he had

assaulted her and not being able to show the other inconsistencies in the

testimony.

The Commonwealth argues that Alderson did not appropriately preserve

this issue as he “could have impeached the juvenile victims with their prior

inconsistent statements if he so chose, [but] he simply declined to do so for

tactical reasons.” The Commonwealth argues that Alderson should have

proceeded with his impeachment, and if the trial court had then allowed the

Commonwealth to play some or all of the Lotus interviews over his objection,

then the issue would have been preserved, and otherwise, any claimed error

can only be reviewed under the palpable error review standard.

As we are reversing on another issue, we address this issue only to

provide guidance on remand. We disagree that Alderson did not sufficiently

preserve this issue, where the trial court made a clear ruling about what it

would do after Alderson appropriately explained his position. While the extent

to which the trial court would have allowed the playing of the Lotus interview

was unknown, it was known that the trial court would have allowed at least

part of it to be played while Alderson argued none of it should be played, and

through avowal Alderson established what the witnesses’ testimony would have

been.

The trial court was simply incorrect in its conclusion that Alderson could

not use the Lotus interview to refresh the witnesses’ recollections without the

underlying materials being presented as evidence to the jury. As was clarified

29
in Brock v. Commonwealth, 947 S.W.2d 24, 30 (Ky. 1997), it is appropriate to

use a tape recording of a conversation (and ostensibly also a video recording) to

refresh a witness’s recollection. However, “any attempt to impeach or refresh

the recollection of a witness with a tape recorded statement must be conducted

first in chambers outside the hearing of the jury so that the jury will not be

prejudiced by having heard the recording in the event it is determined to be

inadmissible.” Id. at 31. Similarly, a writing used “to refresh a witness’s

recollection per KRE 612 . . . ‘cannot be read [aloud] under the pretext of

refreshing the witness’s recollection.’” Fisher v. Commonwealth, 620 S.W.3d 1,

15 (Ky. 2021) (quoting Robert G. Lawson, The Kentucky Evidence Law

Handbook, § 3.20[6][c] (on KRE 612) (2020) (citing Payne v. Zapp, 431 S.W.2d

890, 892 (Ky. 1968))).

“[W]hen a witness refreshes her memory under [KRE 612], the testimony

elicited thereafter ‘is the product of the refreshed memory, not the writing [or

recording] used to refresh it.’ As a result, the document [or recording] itself is

not admissible into evidence[.]” Martin v. Commonwealth, 456 S.W.3d 1, 15 (Ky.

2015), (quoting Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky. 2001)) (abrogated on

other grounds by Sexton, 647 S.W.3d at 232). See also Disabled American

Veterans, Dept. of Kentucky, Inc. v. Crabb, 182 S.W.3d 541, 551-52 (Ky. App.

2005) (relying upon and quoting from Lawson, The Kentucky Evidence

Handbook, 3.20[2], [7], and § 8.85[1] (4th ed.2003) for the propositions that

almost any writing can be used to refresh a tarnished memory, but such

writing does not become evidence, as the refreshed memory is the evidence).

30
 If refreshment is unsuccessful, and instead a witness is impeached with

her prior inconsistent statement, that is a different matter.

Under KRE 801A(a)(1), relating to prior statements of witnesses,
“[a] statement is not excluded by the hearsay rule, even though the
declarant is available as a witness, if the declarant testifies at the
trial or hearing and is examined concerning the statement, with a
foundation laid as required by KRE 613, and the statement is ...
[i]nconsistent with the declarant’s testimony[.]” An inconsistent
statement for purposes of KRE 801A(a)(1) includes a witness's
claimed inability to recall making the statement. McAtee v.
Commonwealth, 413 S.W.3d 608, 618 (Ky. 2013). And under
Kentucky law, “prior inconsistent statements may be introduced as
an impeachment device and as substantive evidence.” Id.

Downs v. Commonwealth, 620 S.W.3d 604, 617 (Ky. 2020).

If a portion of a Lotus recording was admitted into evidence pursuant to

KRE 801A(a)(1), the question would then become whether other portions of that

interview would then need to be admitted into evidence pursuant to KRE 106,

which provides that “[w]hen a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require the introduction at that

time of any other part or any other writing or recorded statement which ought

in fairness to be considered contemporaneously with it.” As explained in James

v. Commonwealth, 360 S.W.3d 189, 205 (Ky. 2012), and Meece v.

Commonwealth, 348 S.W.3d 627, 671 (Ky. 2011), this does not “open the door”

to entire videos being admitted into evidence. Instead, it must be resolved

whether the portions of the videos admitted would be misleading or altered by

31
the exclusion of other portions of the videos and, if so, what other portions of

the videos thereby ought to also be admitted into evidence.3

E. The trial court erred when it imposed jail fees without
evidence of a jail fee reimbursement policy.—Unpreserved

The trial court entered an order requiring Alderson to pay a jail fee,

stating that “Ballard County had adopted a jail fee ordinance pursuant to

applicable statute.” Alderson argues that the trial court erred in imposing such

a fee “because it is unclear when or how the Ballard County jail adopted a jail

fee reimbursement policy pursuant to KRS 441.265(2)(a)” and, therefore,

reversal of the imposition of this fee is warranted.

Alderson concedes this issue is unpreserved, but correctly states that

because sentencing is jurisdictional, a failure to object cannot waive sentencing

errors, which may properly be raised for the first time on appeal. Travis v.

Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010).

Pursuant to Capstraw v. Commonwealth, 641 S.W.3d 148, 161-62 (Ky.

2022), “in order to impose jail fees against a criminal defendant during

sentencing, there must be some evidence presented that a jail fee

reimbursement policy has been adopted by the county jailer with approval of

3 We acknowledge it may be more difficult to easily assert which portions of a
video should be presented contemporaneously for completeness in such
circumstances. Videos may need to be reviewed in real time to make such a
determination, while a transcript or statement could quickly be skimmed. However,
that does not provide a valid basis for simply admitting the entirety of these videos.
The solution in such a situation, while cumbersome, is to allow the party seeking to
admit additional portions of the videos to review the videos and then mark and explain
what portions of necessity should also be admitted, thus allowing for discussion and
resolution.

32
the county’s governing body in accordance with KRS 441.265(2)(a).” (Emphasis

added).

The Commonwealth argues there is “some evidence” that Ballard County

properly adopted a jail fee ordinance because the trial court’s order stated: it

had been advised that Ballard County adopted a jail fee, the rate of $22.00 per

day was established prior to July 1, 2021, and the rate of $30.00 per day

became effective July 1, 2021. We disagree that the trial court simply stating

this constitutes “some evidence.” Instead, it is clear in Capstraw that some

evidence was lacking if “there was no such evidence presented during . . .

sentencing[.]” 641 S.W.3d at 162 (emphasis added).

Therefore, should Alderson be convicted again on remand, appropriate

evidence as to the proper adoption of a jail fee should be presented during

sentencing. This could be as simple as the Commonwealth Attorney providing

a copy of the relevant ordinances.

IV. CONCLUSION

Accordingly, we reverse Alderson’s conviction and sentence by the Ballard

Circuit Court and remand for a new trial.

All sitting. All concur.

33
COUNSEL FOR APPELLANT:

Emily Holt Rhorer
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron
Attorney General of Kentucky

Thomas A. Van De Rostyne
Assistant Attorney General

34