DANIEL CLEMANS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE (2026)

Appellant, Daniel Clemans, appeals as a matter of right from a judgment of the Meade Circuit Court convicting him of murder and sentencing him to life in prison. KY. CONST. § 110(2)(b). After careful review, we affirm.

BACKGROUND

On January 10, 2022, B.I.,¹ a five-year-old male, was transported via ambulance to an Indiana hospital where he was pronounced deceased. B.I.’s manner of death was ruled a homicide, and his cause of death was attributed to multiple injuries sustained in an assault. B.I. is the biological child of Stephen and Kayla (collectively, “Parents”)² .

In 2019, Parents separated and eventually divorced, splitting physical custody of B.I. and his older sister R.I. (collectively, the “Children”) on a week-to-week basis with custodial exchanges occurring on Sundays. At the time, Parents maintained separate residences in Tell City, Indiana.

In September of 2021, Kayla began dating Clemans, who resided in an apartment located in Meade County, Kentucky. By November of 2021, the Children regularly accompanied Kayla to visit Clemans at his apartment, including overnight visits. Shortly thereafter, the Children began complaining about visiting Clemans’ apartment during Kayla's parenting time. B.I. also started vomiting frequently during Kayla's parenting time. Kayla discounted B.I.’s vomiting, assuming these episodes were a result of B.I.’s jealousy of her relationship with Clemans. Specifically, Clemans would not permit Kayla to sleep with B.I. and was concerned she was raising a “sissy.”

In mid-December of 2021, B.I. returned to Stephen's care, exhibiting considerable bruising. Stephen testified that this incident precipitated his December 14, 2021, initiation of legal proceedings to obtain full physical custody of the Children. Stephen expressed to Kayla that he was concerned Clemans was harming B.I., and the Children did not want to go to his apartment anymore. The week before B.I.’s death, during Stephen's parenting time, he sought medical treatment for B.I. on two occasions.

On January 4, 2022, Stephen sought care from B.I.’s pediatrician due to B.I.’s vomiting. The pediatrician diagnosed B.I. with anxiety and ascribed his vomiting to the same. Two days later, Stephen became more concerned with B.I.’s abdominal issues and took him to the emergency room. B.I. presented with severe abdominal pain. Following an ultrasound, the emergency room physician diagnosed B.I. with constipation and gas and prescribed B.I. a laxative. Notably, the ultrasound report recommended a CT scan to rule out bowel obstruction. Stephen claims the emergency room physician did not order a CT scan and did not inform him of the recommendation. Accordingly, B.I. was released that same day with instructions to follow up with B.I.’s pediatrician. Stephen testified that B.I. resumed bowel movements and was doing well shortly thereafter.

On Sunday, January 9, 2022, Stephen begrudgingly returned the Children to Kayla pursuant to their parenting arrangement. Clemans observed no bruising on B.I. prior to the exchange. Afterward, the Children went to Kayla's family residence in Tell City, Indiana, to belatedly celebrate the holidays. Later in the evening, Kayla and Children left Tell City for Meade County to stay at Clemans’ apartment. They arrived around 9:30 p.m. Upon arrival, B.I. vomited in the bathroom.

The following day, Kayla was awakened by Clemans, who informed her that he was taking A.C. to her school in Tell City and that B.I. insisted on joining them. After dropping A.C. off at school, Clemans and B.I. went to McDonald's and ate breakfast. B.I. and Clemans returned to the apartment, and he left B.I. in Kayla's exclusive care at approximately 11:00 a.m.

At some point prior to 3:00 p.m., Clemans returned to his apartment to greet his nine-year-old daughter, E.C., and to continue watching B.I. while Kayla attended school. At approximately 3:00 p.m., Kayla left the apartment to attend school in Owensboro, Kentucky. According to Kayla, when she left the apartment, B.I. was resting on the couch with a stomachache. She did not recall B.I. having any noticeable bruising. Later, E.C. arrived at Clemans’ residence. The events that subsequently transpired are critical and highly disputed.

Trial evidence reveals that at 5:53 p.m., Clemans placed a 911 call requesting emergency care for B.I., who was unresponsive and not breathing. The 911 dispatcher instructed Clemans to perform CPR. Clemans responded that he was following instructions but continuously noted the difficulties he encountered. Emergency Medical Services (“EMS”) arrived at Clemans’ apartment within three to five minutes following Clemans’ 911 call.

Paramedics discovered B.I. at the front door. B.I. had no pulse, was cool to the touch, and was dressed in Spider-Man pajamas. Paramedics transported B.I. to the Harrison County Hospital in Indiana. During transport, paramedics utilized numerous resuscitative efforts. B.I. was pronounced dead upon arrival at the hospital. EMS staff noticed that B.I. had bruising on his torso and scraping and bruising on numerous parts of his body. While Kayla and Stephen rushed to the hospital, Clemans did not go to the hospital.

Detective Pesis, of the Meade County Sheriff's Office, arrived at Clemans’ apartment within thirty-five minutes of Clemans’ 911 call. Detective Pesis testified that he noticed that there were no signs that B.I. had used the bathtub.³ There were no children's clothing or wet toys in the bathroom that would indicate B.I. had taken a bath. Detective Pesis also found the bathtub was dry. He was also suspicious of the fact that there were children's clothing and bedding in the washing machine.

The Meade County Coroner, Dr. Jeffery Springer, a forensic pathologist, was informed of the potential homicide and drove to Harrison County to conduct B.I.’s autopsy the following day, January 11, 2022. The Harrison County Coroner, two deputy Harrison County sheriffs, and Detective Pesis were present during the autopsy.

In his autopsy report, Dr. Springer identified twenty-two injuries, including contusions and abrasions on most of the body, and an acute mesentery laceration (“mesentery tear”). His report concluded that B.I.’s death was “due to multiple injuries to the body sustained in an assault.” Further, the detailed postmortem examination of B.I. revealed that he was a healthy five-year-old boy who was well-developed, well-nourished, and had no signs of any disease progression.

Following an investigation, a Meade County Grand Jury separately indicted Clemans and Kayla on one count each of conspiracy to commit murder and tampering with physical evidence.

In a recorded post-arrest interview with Detective Pesis, Clemans maintained that following Kayla's departure, E.C. and B.I. left the apartment to play outside with a neighbor. Clemans stated that B.I. intended to play with the neighbor and ride Clemans’ dirt bike. He claimed that B.I. often rode the dirt bike and was involved in a “couple” of “wrecks.” Clemans recounted that on the afternoon in question, B.I. was sitting on the dirt bike and accidentally pressed the accelerator, causing B.I. to fall off the bike.

At some point thereafter, the Children came inside. Clemans placed their muddy clothes in the washing machine and directed B.I. to take a bath. At approximately 4:46 p.m., Clemans sent Kayla a Snapchat picture of B.I. sleeping on the bed wearing red pajamas. Clemans alleges that B.I. took a bath for approximately thirty minutes. Clemans stated that he later found B.I. hunched over the side of the bathtub, unable to stand without assistance. At that point, B.I. began expressing excessive amounts of liquid from his mouth and nose before becoming unresponsive. Clemans stated that he immediately called 911.

On January 12, 2024, the Commonwealth dismissed Kayla's indictment without prejudice. Ten days later, Clemans’ jury trial began. At trial, the Commonwealth presented the following witnesses whose testimony has already been described: a 911 records custodian, the paramedic who responded to Clemans’ 911 call and transported B.I. to the hospital, and Detective Pesis. In addition to these witnesses, the Commonwealth called a nurse, Stephen, Kayla, Dr. Springer, and E.C. Clemans produced one witness, Dr. John Feczko, a forensic pathologist. Clemans did not testify at trial.

Nurse Michelle Allen testified as to B.I.’s medical records spanning his entire life. She testified that there was no indication that B.I. suffered systematic medical issues or signs of abuse.

Dr. Jeffery Springer, the forensic pathologist who performed B.I.’s autopsy, testified for the Commonwealth. In addition to the information already presented herein, Dr. Springer described B.I.’s injuries to the jury. Dr. Springer explained that B.I. suffered an acute mesentery tear. He clarified that the mesentery supplies blood to the small intestines and holds the bowels in place.

Dr. Springer testified that he recovered approximately 300 milliliters of blood from B.I.’s abdomen. The blood was “fresh” and showed no evidence of clotting, thereby indicating that the injury was less than 24 hours old. Dr. Springer concluded that the blood was the result of the mesentery tear, as he found no evidence of any other source of the abdominal bleeding.

Dr. Springer also provided the jury with his medical opinion that B.I.’s prior vomiting and constipation during the week leading up to his death were not correlated with the acute mesentery tear. Dr. Springer also ruled out the possibility that B.I. suffered from a bowel obstruction. Dr. Springer also explained that there were no signs of necrosis. In his opinion, the mesentery tear was caused by blunt force trauma that occurred less than twenty-four hours before his death. Dr. Springer opined, based on the entirety of his autopsy findings, that the mesentery tear was not caused by a dirt bike accident.

Dr. Springer continued his testimony observing that B.I. suffered an “innumerable” amount of contusions on his body, including contusions on his head, ears, neck, thorax, abdomen, back, arms, genitals, buttocks, legs, and feet. Dr. Springer found additional contusions under B.I.’s scalp. In Dr. Springer's opinion, the contusions demonstrated several instances of blunt force trauma inflicted upon B.I.’s body. While the mechanism of the blunt force trauma was not ascertainable, Dr. Springer stated the injuries were not accidental; rather, the injuries were consistent with blunt force trauma inflicted from a fist or another object.

Dr. Springer also found the presence of alcohol in B.I.’s blood and urine. He opined that the presence of ethanol in B.I.’s blood and urine indicated that the alcohol came from an exogenous source-i.e., B.I. ingested the alcohol as opposed to it naturally occurring. Dr. Springer further opined that the vitreous humor, a type of material collected from the eye, did not contain ethanol. Dr. Springer explained the clinical significance of this finding: that ethanol absorption in the vitreous humor lags two hours behind ethanol concentration in the blood. Since the vitreous humor, which is reliant on blood circulation, halts absorption post-mortem, the presence of alcohol in B.I.’s blood but not in the vitreous humor indicated that B.I. ingested the alcohol within two hours of his death.

Importantly, Dr. Springer testified that none of the injuries alone would have caused B.I.’s death. This fact was highlighted during Clemans’ cross-examination of Dr. Springer. Dr. Springer explained that when non-fatal blood loss and non-fatal contusions are present, there is some other unidentified trauma that contributed to B.I.’s death.

The defense's expert, Dr. Feczko reviewed Dr. Springer's autopsy report, photos, and other evidence. Dr. Feczko challenged Dr. Springer's identified cause of death as injuries sustained in an assault. In his opinion, B.I.’s cause of death was “exsanguination”-i.e., extreme loss of blood leading to death due to a mesentery tear. In his medical opinion, Dr. Feczko believed the mesentery tear may have resulted from the dirt bike accident. In the alternative, the mesentery tear may have resulted from chronic bowel obstruction that eventually caused the mesentery laceration. Dr. Feczko explained that while rare, bowel obstruction, in some cases, can cause mesentery tears. Dr. Feczko also disputed Dr. Springer's conclusion that B.I.’s manner of death was a homicide. Due to the accidental nature of dirt bike accidents, and the bowel obstruction naturally occurring, Dr. Feczko classified B.I.’s manner of death as “undetermined.” On cross-examination, Dr. Feczko admitted that he had no medical proof B.I. suffered from a bowel obstruction.

Dr. Feczko further challenged the veracity of Dr. Springer's autopsy report findings on the following grounds: (1) Dr. Springer's conclusion was tainted by confirmation bias, as he was aware of Clemans’ alleged assault before commencing the autopsy and had law enforcement present when conducting the autopsy; (2) Dr. Springer failed to quantify an exact amount of abdominal fluid necessary to assess B.I. for hypovolemic shock; (3) Dr. Springer did not cut into B.I.’s bruising and examine the bruising under a microscope; and (4) Dr. Springer did not review B.I.’s prior radiology report, revealing that B.I. needed a CT scan to rule out bowel obstruction.

Clemans moved for a directed verdict at the close of the Commonwealth's case-in-chief and at the close of proof. The trial court granted Clemans a directed verdict with respect to the tampering with physical evidence charge but determined the murder charge required a jury's determination of guilt or innocence.

The jury was instructed on four criminal charges of homicide; to wit: (1) wanton murder; (2) first-degree manslaughter; (3) second-degree manslaughter; and (4) reckless homicide. The trial court also instructed the jury on the statutory definitions of intentional, wanton, and reckless. On January 26, 2024, the jury found Clemans guilty of murder and recommended a sentence of life in prison. On April 16, 2024, the trial court entered a final judgment consistent with the jury's recommendation.

This appeal followed.⁴ Clemans raises numerous issues on appeal. He argues the trial court committed reversible error by (1) misapplying Marsy's Law; (2) failing to declare a mistrial; (3) erroneously denying Clemans’ motion for a directed verdict; (4) providing the jury with erroneous jury instructions; (5) refusing to conduct a competency evaluation for E.C.; and (6) erroneously admitting into evidence autopsy photographs.

ANALYSIS

1. The trial court did not err in its application of Marsy's Law.

Following jury selection, the Commonwealth invoked Parents’ rights under Section 26A of the Kentucky Constitution, often referred to as “Marsy's Law.” In doing so, the Commonwealth requested the trial court's permission for Parents to remain in the courtroom during the jury trial, including prior to their testimony. Clemans objected to the Commonwealth's request and sought removal of the witnesses from the courtroom prior to their testimony pursuant to Kentucky Rules of Evidence (“KRE”) 615. The trial court determined that Parents qualified as B.I.’s representatives under Marsy's Law and Kentucky Revised Statute (“KRS”) 421.500(1)(a) and allowed both to remain in the courtroom.

On appeal, Clemans contends that the trial court's ruling violated his constitutional right to a fair trial and a presumption of innocence in contravention of the 5th, 6th, and 14th Amendments to the U.S. Constitution and Sections 2, 3, 7, and 11 of the Kentucky Constitution.

Marsy's Law provides certain rights to “victims” of a crime. The right central to this appeal is the right to be “present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused.” Ky. Const. § 26A. Applicable to Parents, KRS 421.500(1)(a), states that “[i]f the victim is a minor, incapacitated, or deceased, ‘victim’ also means one (1) or more of the victim's ․ parents ․ shall be designated by the court unless the person is the defendant or a person the court finds would not act in the best interests of the victim.” Thus, under Marsy's Law, Parents possessed a constitutional right to remain in the courtroom during the jury trial just as Clemans.

Also at play is KRE 615, which states as follows:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

The purpose of KRE 615 “is to ensure that witnesses do not alter their own testimony based on what they hear from other witnesses.” Cavanaugh v. Commonwealth, 671 S.W.3d 17, 20 (Ky. 2022) (citing Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008)).

Here, KRE 615 and Marsy's Law reveal discordant interests; that is, Clemans’ right to separate or sequester witnesses and Parents’ rights to be present during the jury trial. See Cavanaugh, 671 S.W.3d at 21 (noting the conflicting interest). This Court has addressed the conflict in several published opinions, all in which we concluded that KRE 615 does not trump the constitutional rights enumerated in Marsy's Law. Robertson v. Commonwealth, 677 S.W.3d 309, 314 (Ky. 2023); Cavanaugh, 671 S.W.3d at 21. Our reasoning has been based on the well-accepted tenet of law “that ‘constitutional rights prevail over conflicting statutes and rules.’ ” Robertson, 677 S.W.3d at 314 (quoting Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky. 2003)). Considering an accused does not have a constitutional right to the separation of witnesses, proper application of Marsy's Law does not raise meritorious allegations of error unless such application “violate[s] a defendant's federal constitutional rights.” Cavanaugh, 671 S.W.3d at 21.

Thus, we turn to Clemans’ argument that the trial court's decision to permit Parents to remain in the courtroom encroached on his constitutional rights to a presumption of innocence as encompassed within his right to a fair trial and due process of law. Clemans argues that these constitutional infringements occurred when (1) Parents were permitted to sit “behind the Commonwealth's table crying during the presentation of evidence” and (2) by permitting Parents to testify after listening to other witnesses.

As to Clemans’ first ground, this Court fails to perceive how Parents’ “crying” while sitting in the audience unfairly impacted Clemans’ right to a fair trial. The only citation to the record in which Parents were crying while sitting in the audience prior to their testimony occurred when the Commonwealth played the 911 call recording to the jury.

While irrelevant for purposes of our evaluation of the trial court's application of Marsy's Law, Clemans also mentions the Commonwealth's direct examination of Kayla wherein the Commonwealth began its questioning by stating rhetorically “yesterday was a kind of upsetting day?” These circumstances do not rise to the level of creating an unfair trial and Clemans provides no legal support for such a proposition. Notwithstanding that it was completely understandable that Parents displayed emotion as they listened to the details of the death of their child, the jury also witnessed Parents cry during their respective testimony. Thus, Clemans did not suffer prejudice solely because of one instance of Parents “crying” prior to their testimony.

Clemans’ second ground that his right to a presumption of innocence was infringed upon is founded on Parents’ ability to hear the witnesses that preceded their testimony. The three witnesses that testified before Parents included the 911 records custodian, the paramedic, and Detective Pesis. On this point, a large portion of Detective Pesis’ testimony was concentrated on Clemans’ post-arrest recorded interview that was played for the jury. Parents’ testimonies were confined to their respective experiences with B.I. leading up to his death. Except for Kayla's recall testimony concerning alcohol, which we discuss next, Clemans does not point to any specific testimony of the three preceding witness which could have influenced Parents’ testimony. Instead, Clemans cites Moore v. Commonwealth, for the proposition that Parents maintained a “peculiar relationship” with the prosecution. 323 S.W.2d 577, 578 (Ky. 1958). The facts described in Moore are brief. The defendant, a prisoner incarcerated in the state penitentiary, was convicted of killing a prison guard. Id. All eyewitnesses were also incarcerated. Id. The Court permitted the witnesses to remain in the courtroom and hear each other's testimony. Id. In doing so, the Court found reversible error “because of the nature of this action and because of the peculiar relationship existing between these witnesses and persons interested in the prosecution․” Id.

We find the facts clearly distinguishable from the appeal before us. The most obvious distinguishing characteristic is that Moore predates Marsy's Law. Even if this Court rendered Moore after Marsy's Law became effective, the witnesses did not qualify as victims with constitutional rights thereunder. Thus, the Court was not tasked with weighing incongruous constitutional rights. In addition, we presume that the witnesses, all incarcerated, who witnessed the death of a supervising guard, would normally qualify for separation upon request.

Clemans argues that failure to separate the witnesses permitted Parents to conform their testimony so that Clemans would be convicted, as opposed to either of the two facing criminal responsibility.⁵ However, again, Clemans does not point to any specific testimony that demonstrates Clemans was unduly prejudiced by Parents presence in the courtroom. Indisputably, Parents testimony could not have been altered by the testimony of the 911 records custodian or the paramedic. Both witnesses merely relayed the events surrounding the 911 call and measures taken to save B.I.’s life. Parents did not testify to these subjects. Regarding Detective Pesis, we do not believe his testimony, which contained the recording of Clemans’ post-arrest interview, unduly prejudiced Clemans.

Other than categorical references, Clemans seems to argue that Parents may have conformed their testimony regarding B.I. bruising prior to Kayla's departure on the day in question, and Stephen's alleged medical neglect of B.I. We disagree. Stephen testified to the history of B.I.’s digestive issues and abdominal pain. Stephen was extensively cross-examined regarding B.I.’s prior emergency room visit wherein a radiologist's summary stated that he was advised that B.I. needed a CT scan to rule out bowel obstruction or other issues, but allegedly he refused to wait. Moreover, Stephen testified that he noticed bruising on B.I.’s body upon his return from Kayla's custody on at least one prior occasion. Similarly, Kayla's testimony was consistent that she did not notice bruising when she left B.I. in Clemans’ care on the day in question. Any inconsistencies were addressed in the defense's cross-examination of Kayla.

In Robertson, this Court rejected a comparable argument. 677 S.W.3d at 314-15. Therein, the trial court appointed the victim's father as the representative and permitted him to remain in the courtroom prior to his testimony pursuant to Marsy's Law. Id. at 314. Like the appeal sub judice, the father was the third witness to testify on behalf of the Commonwealth. Id. at 315. The first witness was the minor victim whom the defendant was accused of raping. Id. 313; 315. The second witness was an individual who was with the defendant and the minor victim just prior to the rape. Id. This Court reasoned that it was improbable that the testimony of the two prior witnesses influenced the father's testimony. Id. This Court further reasoned that the defendant “could have cross-examined [the father] regarding the effect the previous testimony had on his own but did not.” Id. Similarly, here, to the extent Clemans articulates any specific testimony that Parents conformed, defense counsel could have raised such inconsistencies during cross-examination.

Turning to Kayla's recall testimony, the Commonwealth recalled Kayla following Dr. Springer's testimony. The recall was narrow and confined merely to whether Kayla saw alcohol in Clemans’ apartment. Kayla's testimony to this fact falls short of demonstrating prejudice. The Commonwealth's theory of guilt, as supported by the record, was that Clemans assaulted B.I., causing his death.

Dr. Springer was thoroughly cross-examined on the presence of alcohol in B.I.’s autopsy report and the potential reasons for the same. Whether Kayla testified to seeing alcohol in Clemans’ apartment is likely inconsequential, considering no witnesses testified that Clemans provided alcohol to B.I., and considering the vigorous cross-examination Dr. Springer encountered on the subject. In other words, Kayla's testimony on this specific point did not rise to the level of undue prejudice. The trial court did not err, as we discern no error in the trial court's application of Marsy's Law.

2. The trial court did not err in denying Clemans’ motion for a mistrial due to Dr. Springer's improper testimony.

Clemans’ second allegation of error is that the trial court erred in denying his motion for a mistrial based on improper witness testimony. The testimony Clemans complains of occurred during the Commonwealth's direct examination of Dr. Springer. While being questioned on his autopsy findings and his opinion on B.I.’s cause of death, Dr. Springer discussed the mesentery tear and the extent of B.I.’s contusions. Dr. Springer explained that while none of the injuries alone caused B.I.’s death, it was apparent, based on a lack of any finding of a natural disease process, and considering what appeared to be a mesentery tear and numerous contusions consistent with inflicted trauma, that some other trauma contributed to B.I.’s death. When discussing these other types of traumas associated with B.I.’s death, Dr. Springer testified that he may have suffered a concussion due to the contusions found under B.I.’s scalp. Dr. Springer further opined that B.I. may have been asphyxiated by strangulation or smothering. Clemans did not contemporaneously object.

Following the conclusion of the Commonwealth's direct examination of Dr. Springer, Clemans moved to strike Dr. Springer's testimony regarding strangulation or smothering. Clemans argued that Dr. Springer made no mention of a theory of asphyxiation in his autopsy report in violation of Kentucky Rule of Criminal Procedure (“RCr”) 7.24. As such, Clemans requested a mistrial, or, in its absence, a curative admonition. The Commonwealth was equally uninformed of Dr. Springer's asphyxiation opinion. Yet, the Commonwealth argued that Dr. Springer was free to opine on other potential actions that occurred during the assault that contributed to B.I.’s death because his autopsy report opined that neither the blood loss from the mesentery tear, nor the contusions, alone, could have caused B.I.’s death. The Commonwealth believed that any possible theory explaining how the assault resulted in B.I.’s death was fair testimony to elicit.

The trial court orally ruled that the Commonwealth's failure to disclose Dr. Springer's asphyxiation theory was not intended, as it was apparent that the Commonwealth was unaware of its expert's opinions regarding additional theories of trauma. Nonetheless, the trial court agreed that Dr. Springer's testimony was impermissible because Clemans was not sufficiently noticed that Dr. Springer would testify that Clemans asphyxiated B.I. during the assault and was thereby prevented from mounting a proper defense. As a result, the trial court ruled that the jury could not consider the testimony in deliberations. To cure the error, the trial court denied Clemans’ motion for a mistrial, opting to direct Dr. Springer to refrain from opining on asphyxiation. The trial court also admonished the jury in conformity with Clemans’ suggested admonition, directing the jury that it shall disregard and not consider Dr. Springer's testimony “regarding strangulation and suffocation.” Clemans then placed an objection on the record that the trial court's admonition fell short of curing the violation.

Clemans fails to address preservation. Instead, he focused solely on whether Dr. Springer's testimony constituted error under RCr 7.24 and the manifest necessity of a mistrial. However, the timeliness of Clemans’ motion for a mistrial is problematic in this case. Clemans failed to object to the content of Dr. Springer's testimony concerning asphyxiation until after the Commonwealth concluded its direct examination of Dr. Springer, and after a short jury break. Thus, Clemans invited the admission of the testimony by idly standing by without any objection. Since Clemans failed to advise the trial court of the error at the time of Dr. Springer's testimony with a contemporaneous objection, the trial court was not offered the opportunity to rule on the admissibility of the testimony prior to its introduction, which would have obviated the need for a mistrial motion.

In a properly preserved case, our review of a trial court's denial of a motion for a mistrial is subject to an abuse-of-discretion standard of review. Graves v. Commonwealth, 285 S.W.3d 734, 737 (Ky. 2009) (stating that a trial court possesses broad discretion in determining the appropriateness of a requested mistrial). Id. Yet, we agree with the Commonwealth that this issue was not properly preserved. A party seeking a mistrial must timely request that the court grant such relief. RCr 9.22; West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) (citing Jenkins v. Commonwealth, 477 S.W.2d 795 (Ky. 1972)). A motion for a mistrial is timely if it provides the trial court the opportunity to correct an error. Olden v. Commonwealth, 203 S.W.3d 672, 675 (Ky. 2006). Here, while the trial court attempted to cure the error after it occurred, we believe Clemans’ delayed objection to the underlying testimony, coupled with his request for a mistrial only after the Commonwealth elicited all of Dr. Springer's direct testimony, renders his motion untimely.

The Commonwealth suggests Clemans is barred from challenging the trial court's denial of his motion for a mistrial because he invited the error by failing to contemporaneously object to the problematic testimony as required under RCr 9.22. See Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011) (“[I]nvited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review.”). We do not agree with the Commonwealth that Clemans’ actions constituted waiver; rather, Clemans forfeited his claim of error by failing to timely bring the evidentiary error to the trial court's attention and request a mistrial based on the ruling and testimony elicited. See Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023) (distinguishing issue waiver from issue forfeiture). This Court applies palpable error review to forfeited claims of error. Id.

Palpable error occurs if the error “affect[s] the complaining party's substantial rights, and if uncorrected would result in a manifest injustice.” RCr 10.26; see, e.g., Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009). “The error must be shocking or jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). As discussed below, the trial court's denial of Clemans’ mistrial motion did not result in palpable error.

To begin, we address the discovery error underlying Clemans’ mistrial motion. We find it palpable that a discovery violation occurred. RCr 7.24(1)(b) required the Commonwealth to provide Clemans with “results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case.” Dr. Springer's autopsy report made no mention of asphyxiation. Thus, the trial court correctly ruled that Dr. Springer's testimony regarding asphyxiation was improper. This Court has long observed that “[a] discovery violation justifies setting aside a conviction ‘only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different.’ ” Weaver v. Commonwealth, 955 S.W.2d 722, 725 (Ky.1997) (quoting Wood v. Bartholomew, 516 U.S. 1, 5 (1995)).

Unlike situations where the Commonwealth withholds the defendant's incriminating statements, which obviously undermines the fairness of a trial, the degree of prejudice is not always apparent in situations, as here, where the discovery violation does not necessarily prevent the defendant from properly preparing a defense. See Akers v. Commonwealth, 172 S.W.3d 414, 416-17 (Ky. 2005).

In Akers, the defendant was charged with stalking, assault, and unlawful imprisonment. Id. at 416. The accused mounted a defense to the assault charge on the contention that the victims fabricated the incident based on any proof of injuries, in part, due to the investigating officer's report that the victims did not suffer any physical injuries. Id. At trial, however, the officer testified to the injuries the victims sustained during the incident. Id. On cross-examination, the officer explained that he completed a separate report for each offense and noted no injuries in the report associated with unlawful imprisonment. Id. The Commonwealth acknowledged the error and explained that it was unaware of the additional reports showing the victims were injured. Id. Ultimately, the trial court denied the defendant's motion for a mistrial. Id. On appeal, this Court held that the discovery violation constituted reversible error because the undisclosed reports “gutted” the defendant's defense and prevented him from defending against the charges stemming from the incident. Id. at 417.

The problem with Clemans’ argument is that, unlike Akers and cases alleging similar prejudice, the Commonwealth did not fail to provide an undisclosed report. The Commonwealth failed to disclose an inference from the report which it was unaware of until trial. Further, Clemans’ defense was not based on a “misconception that there was no physical evidence.” Akers, 172 S.W.3d at 417.

Dr. Springer's superfluous opinions merely presented additional trauma that B.I. may have sustained during the assault, opinions that were duplicative of his ultimate opinion that B.I. died from injuries sustained during an assault. Clemans’ defense was that he was not the source of the injuries. Therefore, Dr. Springer's undisclosed asphyxiation testimony did not prejudice his defense to the extent that he would have proceeded in a different manner, or the jury would have reached a different result. See Trigg v. Commonwealth, 460 S.W.3d 322, 326 (Ky. 2015) (a discovery violation that creates the existence of “a reasonable probability that had the evidence been disclosed, the result at trial would have been different” mandates reversal).

Either the jury believed Clemans beat B.I. to death or it did not. There was no direct proof that any specific injury caused his death; rather, it was the cumulative injuries sustained from such conduct that rendered Clemans culpable. In other words, Clemans’ defense that he did not inflict the injuries would not have changed with prior notice that another possible trauma inflicted was asphyxiation. Consequently, we cannot reasonably conclude that had Clemans been aware of Dr. Springer's asphyxiation opinions, defense counsel would have proceeded in a different manner, or the jury would have reached a different result.

In further support of our conclusion, we highlight that Dr. Springer's recitation of other possible trauma was overwhelmingly comprised of his medical knowledge in general. Dr. Springer spent much of his time discussing the different forms of asphyxiation and autopsy findings, or in the case of smothering, the lack thereof, indicating asphyxiation.

For example, Dr. Springer spent ample time discussing petechia, classified as signs of ruptured capillaries, and the implications of finding petechia in different locations. While informative in a general sense, Dr. Springer then testified that he did not find petechia on B.I.’s body. Throughout the detailed testimony, Dr. Springer could only find one indicator of asphyxiation, and that was the presence of contusions and abrasions around B.I.’s neck, possibly indicating strangulation.

In contrast to his testimony regarding asphyxiation, most of Dr. Springer's testimony focused on the mesentery tear and various contusions. Indeed, Dr. Springer's testimony is replete with evidence demonstrating that Clemans inflicted trauma on B.I. during an assault, injuries that cumulatively led to his death. Dr. Springer described at length the clinical significance of each of B.I.’s “innumerable” contusions and the mesentery tear.

Accordingly, any prejudice resulting from Dr. Springers additional contentions that a concussion or asphyxiation may have contributed to B.I.’s death would not have resulted in a different verdict. Our holding is bolstered by the fact that the trial court admonished the jury not to consider Dr. Springer's asphyxiation testimony and disallowed any further testimony on the same. We must presume a jury will follow a trial court's instructions to disregard evidence presented in error. Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). Clemans has not identified any reason for this Court to deviate from this presumption.

Clemans’ reliance on Barnett v. Commonwealth, 763 S.W.2d 119 (Ky. 1988), is misplaced. In Barnett, this Court found reversible error from a discovery violation encompassing an expert's report that failed to identify “a significant piece of information ․” Therein, the defendant was convicted of murdering his wife. Id. at 120. The defense maintained that the defendant discovered the grisly murder upon his return to his vehicle, which he left in search of help upon the vehicle's malfunction. Id. 120-121. There was no physical proof that the defendant committed the murder except for traces of blood on the defendant, which he maintained may have occurred when he attempted to evaluate her condition. Id. During the trial, the Commonwealth's expert, a serologist, testified that the traces of blood found on the defendant were consistent with a conclusion that he attempted to remove the blood from his hands using a nearby puddle. Id. at 123. However, the expert failed to disclose his theory that Barnett washed his hands at all, and certainly not in a nearby puddle. Id. In reversing, this Court did not elucidate as to its reasoning, except to say the defendant “was entitled under RCr 7.24 to be confronted with the fact that this opinion would be presented against him before the trial started so that he had a reasonable opportunity to defend against the premise.” Id. In other words, Barnett had no indication that he needed to obtain proof to combat the expert's testimony. Id. In sum, Barnett stands for the legal tenet that an expert may not testify to an undisclosed opinion not deducible from the information contained in the expert's report, because doing so constitutes a deliberate surprise on the defendant at trial.

Additionally, Barnett is distinguishable. Barnett advanced the proposition that any blood found on his person was based on his attempt to evaluate his wife's condition, and she was covered in blood. An expert opinion that the blood found on his person demonstrated that he attempted to wash the blood off in a nearby puddle certainly undermines the only physical evidence connecting the defendant to the crime.

That is not the case here. There is no direct proof that Clemans inflicted the injuries upon B.I. Clemans’ defense was simply that he was not the source of the injuries causing B.I.’s death. Dr. Springer's extraneous theories of additional trauma did not undercut Clemans’ defense. In other words, regardless of whether B.I. succumbed to death from being strangled or by inflicted blows to his body, it did not discredit Clemans’ defense that he did not inflict the injuries. The jury did not believe him.

Thus, the trial court did not err in denying Clemans’ mistrial motion because no manifest injustice occurred requiring reversal pursuant to RCr 10.26.

3. The trial court did not err in denying Clemans’ second motion for a mistrial based on improper prosecutorial statements.

Clemans further argues that the trial court erred by failing to grant his second motion for a mistrial due to the Commonwealth's statements during closing arguments, wherein he compared B.I.’s blood-alcohol level of .025 percent to being above the threshold amount for the criminal offense of driving under the influence (“DUI”).

Clemans objected, arguing that the Commonwealth mischaracterized the evidence based on the autopsy findings. Said findings were based on B.I.’s abdominal blood serum levels, which are higher than the whole blood testing method, thereby requiring a conversion to make the comparison accurate. On these grounds, Clemans moved for a mistrial based on the Commonwealth's statements. The trial court agreed that the Commonwealth erred in making such comparisons. However, the trial court denied Clemans’ motion for a mistrial and admonished the jury to disregard the Commonwealth's statements regarding blood alcohol levels and DUIs.

On appeal, Clemans maintains that the Commonwealth's statements amounted to prosecutorial misconduct that “misled the jury to believe that Daniel fed B.I. alcohol during the course of the alleged crime.” The record reflects otherwise.

Prosecutorial misconduct is defined as “a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.” Commonwealth v. McGorman, 489 S.W.3d 731, 741-42 (Ky. 2016) (cleaned up). Reversal is mandated only if the misconduct is so serious as to render the entire trial fundamentally unfair. Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001) (citing Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir. 1979) and Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995)).

Notably, the alleged prosecutorial misconduct here occurred during closing arguments, a phase of trial wherein the Commonwealth is given wide latitude in drawing reasonable inferences from the proof. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006). Whether a prosecutor's closing arguments constitute prosecutorial misconduct mandates proof that the conduct is flagrant, or that defense counsel objected, the defendant's guilt is not overwhelming, and the trial court failed to cure the error with a sufficient admonition to the jury. Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002). Flagrant misconduct is found where the strength of the evidence against the accused is strong, and the prosecutor's remarks (1) mislead the jury or prejudiced the accused, (2) were extensive, and (3) were deliberate, not accidental. Hannah v. Commonwealth, 306 S.W. 3d 509, 518 (Ky. 2010) (internal citations omitted)

The prosecutor's comments were not flagrant. They were brief, and any prejudice did not influence the jury. In fact, even the prosecutor failed to recognize the inaccurate comparison between whole-blood and serum concentrations. Objectively, the crux of the Commonwealth's closing argument was to induce the jury to recognize that an otherwise healthy child was found deceased with clinical indications of abuse—e.g., injuries and findings that are consistent with inflicted trauma.

Based on the autopsy report, we find it apparent the Commonwealth was attempting to convey Dr. Springer's opinion that the amount of blood alcohol concentration detected from B.I.’s autopsy demonstrated a level of alcohol that is suspicious of abuse and did not occur naturally. In the Commonwealth's attempt to emphasize Dr. Springer's finding, the Commonwealth utilized a comparison an average juror could understand; that is B.I.’s blood alcohol level was elevated to a level equal to an individual's consumption of alcohol which could result in a DUI if the individual was driving. As explained, and as the record on appeal demonstrates, the Commonwealth's improper comparison was not made to deliberately mislead the jury.

In this specific instance, and in the absence of flagrant misconduct, the trial court cured the error by admonishing the jury. See Barnes, 91 S.W.3d at 568. Clemans has not provided any evidence that the jury was so influenced by the Commonwealth's passing closing arguments that it was unable to follow the trial court's admonition. Moreover, proof of B.I.’s blood alcohol level is arguably the least persuasive evidence implicating Clemans in killing B.I. Consequently, we are unpersuaded by Clemans’ assertion that he is entitled to a new trial based upon the Commonwealth's improper closing statements.

4. The trial court did not err in denying Clemans’ motion for a directed verdict on the murder charge.

At the close of the Commonwealth's case-in-chief, Clemans moved for a directed verdict of acquittal on all charges.⁶ As the trial court granted Clemans’ motion for a directed verdict of acquittal on the tampering with physical evidence charge, we will only address the trial court's denial of Clemans’ motion for a directed verdict on the murder charge. The basis for Clemans’ motion was that the Commonwealth failed to prove B.I.’s cause of death or that Clemans was the perpetrator.

Specifically, Clemans took aim at Dr. Springer's testimony that neither the contusions nor the meniscal tear, alone, caused B.I.’s death. Clemans further argued that the Commonwealth failed to provide any direct proof that Clemans caused the meniscal tear or the contusions. In denying Clemans’ motion, the trial court reasoned that there was sufficient testimony to induce a reasonable juror to find that B.I. died from multiple blunt force injuries sustained during an assault and that Clemans was the individual who inflicted those injuries.

In Commonwealth v. Benham, we clarified the directed verdict standard as follows:

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.

816 S.W.2d 186, 187 (Ky. 1991).

Further, the Court reiterated that “[o]n 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.” Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). Such is the case where the Commonwealth produces “no more than a mere scintilla” of evidence to supporting the elements of charged crime. Id. at 187-88.

Murder may be committed by one acting intentionally (KRS 507.020 (1)(a)), or wantonly (KRS 507.020(1)(b)). Here, the Commonwealth ultimately sought Clemans’ conviction based on the theory that Clemans wantonly murdered B.I. The elements of wanton murder are promulgated in KRS 507.020(1)(b), which states as follows: “A person is guilty of murder when ․ under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” A person acts “wantonly” when he is “aware of and consciously disregards a substantial and unjustifiable risk ․ of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” KRS 501.020(3).

Therefore, the elements necessary to convict Clemans of murder required the jury to find more than just wantonness, which is reserved for the crime of manslaughter in the second degree. Clemans’ murder conviction required the jury to find that Clemans caused B.I.’s death by (1) wantonly engaging in conduct that (2) created a grave risk of death to B.I. (3) under circumstances manifesting extreme indifference to B.I.’s life.

It is important to underscore that whether Clemans’ wantonness demonstrated an extreme indifference to B.I.’s life is a question that must be left to the jury. See Simpson v. Commonwealth, 718 S.W.3d 900, 915 (Ky. 2025) (“The question of whether a defendant's conduct demonstrates extreme indifference to human life must be answered by the trier of fact.”) (citing Brown v. Commonwealth, 975 S.W.2d 922, 924 (Ky. 1998)). In considering the evidence in its totality, and drawing all reasonable inferences in the Commonwealth's favor, the trial court properly denied Clemans’ motion for a directed verdict.

We reject the notion that the Commonwealth failed to meet its burden of proof merely because the Commonwealth failed to provide direct proof that Clemans caused B.I.’s death. Direct proof is not necessary to support a criminal conviction, including that of murder. Sloss v. Commonwealth, 709 S.W.3d 102, 127 (Ky. 2024) (circumstantial evidence of murder did not entitle the defendant to a directed verdict of acquittal). The same holds true at the directed verdict stage of trial proceedings. Compare Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) (holding that circumstantial evidence was sufficient to support a murder conviction because the evidence taken as a whole shows that it was not clearly unreasonable for the jury to find guilt) with Collinsworth v. Commonwealth, 476 S.W.2d 201, 202 (Ky. 1972) (holding that circumstantial proof that was equally consistent with the defendants’ innocence required a directed verdict of acquittal). Thus, where the circumstantial proof weighs in the prosecution's favor, our focus is on the sufficiency of proof, not on whether such proof is circumstantial. Commonwealth v. Goss, 428 S.W.3d 619, 625-26 (Ky. 2014); see generally Commonwealth v. O'Conner, 372 S.W.3d 855, 857 (Ky. 2012) (citing cases extending back to 1937). Indeed, our standard of review considers the evidence, including circumstantial evidence, and contemplates whether it would be clearly unreasonable for a jury to find the defendant guilty. Benham, 816 S.W.2d at 187.

Turning to the sufficiency of the evidence, most of the evidence set forth herein above favors the Commonwealth. While this evidence cannot be characterized as overwhelming, we cannot say as a matter of law, that it was unreasonable for the jury to conclude that (1) Clemans inflicted numerous injuries upon B.I. during the twenty-four hours preceding his death, (2) whether classified as an assault or any other synonymous term, Clemans beat B.I. so severely that it caused numerous injuries, including internal bleeding from a mesentery tear and contusions on most parts of B.I.’s body, all of which cumulatively resulted in B.I.’s death; and (3) that Clemans acted wantonly in assaulting B.I. with such severity that it posed a grave risk death and manifested an extreme indifference to life. Indeed, the above-detailed evidence exceeds “a mere scintilla” of evidence evincing the requisite proof to withstand Clemans’ motion for a directed verdict on the charge of murder.

Clemans asserts that there was also proof supporting his innocence, specifically pointing to the following: (1) B.I. had suffered severe abdominal pain requiring medical intervention the week prior to his death; (2) Stephen failed to wait for a CT scan to rule out bowel obstruction; (3) Kayla and other members of her family were present with B.I. and had the opportunity to inflict injuries on him within twenty-four hours of his death; (4) Dr. Springer's autopsy and findings failed to definitively explain how BI's death occurred other than to generally state that the cumulative effect of the injuries was the cause of death despite his testimony that none of the injuries alone resulted in B.I.’s death; (5) that Dr. Springer could not rule out that B.I. suffered from a bowel obstruction not identifiable at the time of autopsy; and (6) Dr. Fazzo provided contradicting conclusions.

However, as already explained, our review is limited to asking whether it would be clearly unreasonable for a jury to find guilt. Benham, 816 S.W.2d at 187. This standard “requires ‘some deference’ to the trial court's appraisal of the proof.” Southworth v. Commonwealth, 435 S.W.3d 32, 42 (Ky. 2014) (quoting McCleery v. Commonwealth, 410 S.W.3d 597, 601 (Ky. 2013)). In this posture, therefore, we are mindful that the trial court was required to assume the Commonwealth's proof, and reasonable inferences therefrom, were true, reserving the task of weight and credibility of such proof to the jury. Benham, 816 S.W.2d at 187. For these reasons, we hold that the trial court did not err in denying Clemans’ motion for a directed verdict of acquittal, as it was clearly not unreasonable for the jury to conclude that Clemans wantonly murdered B.I.

5. The trial court did not err in its jury instructions.

Next, Clemans alleges distinct claims of instructional errors relating to the offenses of murder and first-degree manslaughter. Clemans pro se arguments are difficult to follow and intertwine numerous errors, some in passing, without providing corresponding legal support. Accordingly, we attempt to frame Clemans’ arguments in a manner to provide meaningful review.

Before addressing Clemans’ assignments of error, we must first address preservation, waiver, and palpable error review.

RCr 9.54 states the following:

(1) It shall be the duty of the court to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel. These requirements may not be waived except by agreement of both the defense and the prosecution.

(2) No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.

Expounding on subsection (2), we note that in some circumstances, palpable error review under RCr 10.26 is permitted despite the party's failure to preserve the alleged instructional error. Under RCr 10.26, an unpreserved error may be corrected on appeal if the error is palpable, “affecting the complaining party's substantial rights, and if uncorrected would result in a manifest injustice.” See, e.g., Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009). In Martin, this Court expounded on the concept of manifest injustice, stating that “a reviewing court must plumb the depths of the proceeding ․ to determine whether the defect ․ was shocking or jurisprudentially intolerable.” 207 S.W.3d at 4.

Here, Clemans tendered proposed jury instructions in July of 2023 on the charge of complicity to commit murder. Thereafter, the Commonwealth dismissed the indictment against Kayla and proceeded to prosecute Clemans solely under an amended charge of murder. It is unclear from the record if Clemans tendered additional proposed jury instructions comporting with the Commonwealth's amended charge.

During the sole discussion of the instructions, the trial court asked on the record if either party had objections to the finalized jury instructions. Clemans’ defense counsel stated the following: “Judge, I think as to the final instructions that we have, we have no objections, we agree to the language that I think we worked through, and the different lesser-includeds.”⁷ The Commonwealth likewise offered no objections.

A. Murder Instruction.

Clemans’ instructional errors contained within the murder instruction comprise both defects and failures to provide additional instructions. The instruction at issue states the following:

You will find [Clemans] guilty of murder under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

(A) That on or about January 10, 2022, in Meade County, Kentucky, and before the finding of the Indictment herein he caused the death of [BI] by assaulting him:

AND

(B) That in so doing, he was wantonly engaging in conduct which created a grave risk of death to [B.I.] and thereby caused the death of [B.I.] under circumstances manifesting an extreme indifference to human life.

First, Clemans alleges that the murder instruction permitted the jury to find him guilty of wanton murder if it believed that by “assaulting [B.I.]” [he] was wantonly engaging in conduct which created a grave risk of death to another and that he thereby caused the victim's death under circumstances manifesting an extreme indifference to human life. KRS 507.020(1)(b). Clemans argues the instruction improperly embedded the additional crime of assault.

Clemans further argues that the instruction improperly required the jury to find he committed the crime of assault, thereby requiring the jury to find that he acted intentionally, not wantonly. He also contends that the instructions’ implication he committed a criminal assault, coupled with “on or about” language when identifying the day the crime occurred, led at least one juror to convict him of wanton murder based on injuries B.I. sustained in prior dirt bike accidents.

Regarding preservation, Clemans tendered proposed jury instructions in July of 2023, including a combined instruction on complicity to commit intentional and wanton murder. The instruction did not include the use of the term “assaulting.” Again, however, the record is unclear as to whether Clemans tendered additional proposed jury instructions that comported with the Commonwealth's amended charge. “Fundamental to the concept of preservation of trial error in any context is that the trial judge was explicitly made aware of the action desired by the party.” Smith v. Commonwealth, 410 S.W.3d 169 (Ky. 2013). Consequently, this Court is unable to identify whether the issue was properly preserved.

We are also unable to ascertain whether Clemans “affirmatively propos[ed] [the] instruction that contain[ed] the very defect he now opposes[,]” and thus, invited the error. See Quisenberry v. Commonwealth, 336 S.W.3d 19, 37-38 (Ky. 2011) (explaining that “invited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review.”). Likewise, we are unable to determine whether Clemans overtly waived his right to contest the jury instructions on unanimity grounds through defense counsel's general agreement to the jury instructions. See, e.g., Sanchez v. Commonwealth, 680 S.W.3d 911, 930 (Ky. 2023). We are unaware of what issues the parties worked through, and if those issues involved unanimity, or whether the trial court was advised of such issues prior to Clemans’ agreement to the instructions.

Therefore, we cannot conclusively opine whether Clemans’ express agreement to the jury instructions, “waived his ability to now challenge those instructions on appeal.” Sanchez, 680 S.W.3d at 930. Consequently, considering our in-depth clarification of the general principles of error preservation in Gasaway, 671 S.W.3d at 314, we opt to classify Clemans’ argument as a forfeited claim of error, which we will review for palpable error.

Having reached this Court on the unpreserved issue of unanimity, we underscore that Clemans has a constitutional right to a unanimous verdict on all elements of the charged offense. Ky. Const. § 7; U.S. Const. amend. VI. “Juror unanimity means that jurors must agree upon the specific instance of criminal behavior committed by the defendant, but they need not agree upon his means or method of committing the act or causing the prohibited result.” King v. Commonwealth, 554 S.W.3d 343, 352 (Ky. 2018), overruled on other grounds by Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023).

A unanimous-verdict violation occurs in generally three categorical manners. Johnson, 676 S.W.3d at 410-11. The first occurs when there are multiple counts of the same offense, yet the instructions fail to distinguish or identify the separate counts, which, in turn, prevents the jury from determining guilt as to each charged offense. Id. (quoting Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008)). The second occurs when multiple criminal acts by the defendant satisfy a verdict of conviction for a single offense. Martin v. Commonwealth, 456 S.W.3d 1, 7 (Ky. 2015), abrogated on other grounds by Sexton v. Commonwealth, 647 S.W.3d 227 (Ky. 2022). The third instance of potential unanimity error occurs when the jury is given a “combination jury instruction” that permits a conviction of an offense under alternative theories, and none of the theories presented is supported by the evidence. Brown v. Commonwealth, 553 S.W.3d 826, 839 (Ky. 2018).

Clemans’ arguments supporting instructional error based on unanimity do not squarely fit into any of these categories. Nonetheless, we will evaluate each argument. Regarding use of the phrase “assaulting [B.I.],” this potential error conceivably fits within the second type of unanimity violations as enunciated in Martin v. Commonwealth, 456 S.W.3d 1. That is, the instruction alleged multiple criminal acts resulting in Clemans’ conviction of the single offense of wanton murder.

We do not perceive the instruction as alleging multiple criminal acts. The subject instruction did not require the jury to find Clemans committed a separate crime of “assault” in any degree. A criminal charge of assault was not alleged or instructed upon. It is further obvious that the instruction did not use the term “assault;” rather, the instruction stated Clemans “caused the death of [B.I.] by assaulting him,” thereby illustrating the means or method Clemans utilized to cause B.I.’s death. Thus, the jury was not required to find Clemans guilty of an uncharged crime of assault in any degree to satisfy the elements of wanton murder. Perhaps the term “beat” or “attacked” would have prevented Clemans’ claim of error, yet we find it clear that the jury was aware that a separate criminal charge of assault was neither alleged nor required to be found to convict Clemans of wanton murder.

Assuming, arguendo, that the use of the term “assaulting” did present a palpable unanimity error, such error did not result in manifest injustice. The jury was aware of the prosecution's theory of guilt. The jury heard Dr. Springer's testimony and autopsy findings that B.I. died from injuries that occurred during an assault. The jury heard additional medical testimony from both experts explaining that a tremendous level of force is generally required to inflict a mesentery tear. Moreover, the jury was provided evidence that B.I. sustained extensive bruising that was not identified prior to leaving his Stephen's home on the morning of January 9, 2022, or at the time Kayla left B.I. in Clemans’ care on January 10, 2022.

Importantly, and unlike other terms, the word “assaulting” was not defined within the instructions, thereby signifying an ordinary use of the term, one not legally defined. Considering the context of the evidence in conjunction with the Commonwealth's theory of guilt and jury instruction language, the jurors were cognizant that the subject conduct on which a guilty verdict of wanton murder was based was that Clemans beat or harmed B.I., whether through a continuous course of inflicting injuries or through a single beating.

Thus, the generic use of the phrase “assaulting [BI]” was tantamount to Clemans’ physically inflicting the injuries that cumulatively led to BI's death. Thus, the jury was not confused that a guilty verdict required four conclusions: (1) Clemans’ conduct, classified as “assaulting B.I.,” caused his death, (2) Clemans acted wantonly in engaging such conduct, (3) his conduct created a grave risk of death to [B.I.], and (4) manifested an extreme indifference to B.I.’s life.

Whether Clemans’ subject conduct qualified as a criminal assault was not pertinent to these four required findings. If anything, Clemans’ contention that the jury was required to find he committed a separate crime of criminal assault in any degree inured to his benefit, as such would require additional elements, and in the context of first-degree assault, requires a higher standard of culpability than wantonness. See KRS 508.010(1)(a); see also Commonwealth v. Wolford, 4 S.W.3d 534, 536 (Ky.1999). Thusly, Clemans is not entitled to reversal of the jury verdict on this ground.

Clemans also advances an argument that the phrase “assaulting [B.I.]” coupled with “[o]n or about January 10, 2022,” led some jurors to convict him on a theory that B.I. suffered an assault ascribed to a dirt bike accident that occurred on dates prior to January 10, 2022. Clemans’ additional arguments likely fall within the third recognized example of unanimous verdict errors discussed in Brown, 553 S.W.3d at 839 (identifying a potential unanimity violation where a conviction of an offense is based on alternative theories and one or more is not supported by the evidence). Clemans’ argument is that the jury did not unanimously agree on the method in which Clemans assaulted B.I. Clemans primary contention on this point appears to be that “both experts stated dirt bike riding/wrecks could have caused the blunt force injuries.” Clemans does not provide a citation to the record wherein the Commonwealth asserted an alternative theory that Clemans inflicted the injuries using a dirt bike. In fact, one of Clemans’ main defenses was that B.I. sustained the subject injuries from a dirt bike accident, and the Commonwealth fervently attempted to prove that B.I. did not ride the dirt bike that fateful afternoon. Even if a juror may have reasonably inferred that Clemans attacked B.I. by utilizing the dirt bike in a manner causing B.I. injuries, such a scenario does not present a unanimous verdict violation.

Our jurisprudence does not require the jury to unanimously agree on the underlying facts satisfying the elements of wanton murder -- here, the means Clemans utilized in injuring B.I. Our opinion in Brown, is instructive. 553 S.W.3d 826. In that case, this Court held that a jury instruction on complicity to commit first-degree robbery did not present a unanimous verdict violation where it identified several items of property taken, any one of which satisfied the element that movable property was taken. Id. at 840. In reaching its holding, the Court quoted the U.S. Supreme Court's description of the principle as follows:

[A] ․ jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime. Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement—a disagreement about means—would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.

Id. at 839-40 (quoting Richardson v. United States, 526 U.S. 813, 817-18 (1999)).

Wanton murder requires a showing that the defendant (1) wantonly (2) engaged in conduct that creates a grave risk of death (3) under circumstances manifesting an extreme indifference to human life. The pertinent element here is engaging in conduct which creates a grave risk of death. The jury instruction identified Clemans “assaulting B.I.” as the factual basis proving the element that Clemans engaged in the requisite conduct necessary for a wanton murder conviction. The means by which Clemans assaulted B.I. is thus considered an “underlying brute fact” that does not require juror unanimity. Brown, 553. S.W.3d at 839-40 (quoting Richardson, 526 U.S. at 817-18).

Like the hypothetical robbery example illustrated in Richardson, it does not matter if the jurors believed Clemans used a dirt bike or his fists to attack B.I., so “long as all 12 jurors unanimously concluded that the Government had proved the necessary related element” that Clemans wantonly engaged in conduct which created a grave risk of death to B.I. 526 U.S. 813, 817-18. Accordingly, we find that unanimity was not lacking in the jury's verdict. The jury was free to find that Clemans’ conduct of “assaulting BI” occurred using Clemans’ own hands or using another object that was consistent with the evidence, including a dirt bike.

Next, Clemans argues that using the “on or about January 10, 2023” language deprived him of a unanimous verdict. Generally, this type of allegation of error falls within the first category of unanimous verdict errors, where there are multiple counts of the same crime and the jury instructions fail to differentiate each count by date. See Harp, 266 S.W.3d 813, 817 (Ky. 2008).

In this instance, Clemans seems to believe such language could have led some jurors to convict him of wanton murder based on injuries B.I. sustained in dirt bike accidents that occurred on prior occasions. We are not persuaded by this argument. If the jury believed Clemans’ wanton conduct, described as “assaulting B.I.,” caused his death, then there was simply no other evidence that Clemans engaged in this specific conduct on a prior occasion. There was simply no testimony or proof that B.I. suffered injuries from a prior dirt bike accident at the hands of Clemans prior to January 10, 2022.

“On or about” is common language used in jury instructions to reference a specific date, including the hours before and after said date. It is undisputed that B.I. did not see Clemans from late December 2021, until arriving at his apartment on the evening of January 9, 2022. Accordingly, the instruction comports with the evidence that Clemans engaged in the harmful conduct which caused B.I.’s death at some point on or near January 10, 2022. Consequently, we find no error, let alone one that is palpable.

Lastly, Clemans argues the trial court failed to instruct the jury on the elements of assault, failed to “instruct on ANY of the dirt bike-riding/accidents causing injuries/death,” and failed to instruct on an alternative perpetrator. Clemans fails to provide any record that counsel provided proposed instructions on the topics he now complains were missing. He also fails to address whether these topics were ever brought to the attention of the trial court. In Martin v. Commonwealth, 409 S.W.3d 340, 345 (Ky. 2013), this Court confirmed that “RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or the failure to give a specific instruction.” (emphasis added). As these errors were unpreserved, they are barred from our review.

B. First-degree Manslaughter Instruction.

Clemans argues the trial court erred in instructing the jury on first-degree manslaughter. Here, the final jury instruction mirrored the corresponding statute, KRS 507.030(1)(c), and provided:

[Y]ou will find [Clemans] guilty of first-degree manslaughter under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

(A) That on or about January 10, 2022, in Meade County, Kentucky, and before the finding of the Indictment herein, he intentionally abused [B.I.] by assaulting him and thereby caused the death of [B.I.].

AND

(B) That at the time of such abuse, he had actual physical custody of [B.I.].

AND

(C) That at the time of such abuse, [B.I.] was less than twelve (12) years of age.

Clemans tendered a jury instruction for complicity to first-degree manslaughter. However, the instruction was confined to the extreme emotional disturbance theory promulgated in KRS 507.030(1)(b). Clemans’ counsel agreed to the final instructions, noting no objections. As a result, palpable error review is not appropriate here. This Court stated in Martin that both the defendant and the Commonwealth maintain strategic reasons for objecting to, or insisting upon, the giving of a lesser offense. 409 S.W.3d at 345-46. A “trial judge cannot be expected to distinguish a neglectful omission from a deliberate choice.” Id. at 346.

Based on Martin and RCr 9.54(2), Clemans’ instructional error allegation is barred from appellate review.

6. The trial court did not err in denying Clemans’ motion for a competency hearing for the Commonwealth's witness.

Clemans next argues that the trial court erred in failing to conduct a competency hearing to establish the credibility of his daughter, E.C., as a witness. E.C. was nine years old at the time of the B.I.’s death, and twelve years old at the time of her testimony. Clemans supports his argument by citing Moore v. Commonwealth, 384 S.W.2d 498, 500 (Ky. 1964). Clemans contends that, at minimum, KRE 601 and KRE 104(a) required the trial court to evaluate E.C.’s competency immediately prior to her testimony via a direct assessment pursuant to Swan v Commonwealth, 384 S.W. 3d 77, 97 (Ky. 2012).

It is within the sound discretion of the trial court to determine whether E.C. was competent to testify. Burton v. Commonwealth, 300 S.W.3d 126, 142 (Ky. 2009) (citing Whitehead v. Stith, 268 Ky. 703, 105 S.W.2d 834, 837 (1937)). The governing rule of evidence is KRE 601, which sets forth the minimum qualifications of a testifying witness. Under this rule, a witness may be disqualified if the trial court determines the witness lacks the following: (1) the capacity to perceive accurately the matters about which he proposes to testify; (2) the capacity to recollect facts; (3) the capacity to express herself so as to be understood, either directly or through an interpreter; or (4) the capacity to understand the obligation of a witness to tell the truth.

As the Commonwealth points out, the competency of a child witness is relatively lower than that of an adult witness. Jarvis v. Commonwealth, 960 S.W.2d 466 (Ky. 1998). A witness is presumed to be competent to testify, and a party wishing to rebut this assumption bears the burden of proving the witness lacks one of the necessary requirements. Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000).

Clemans’ reliance on Moore v. Commonwealth, 384 S.W.2d 498, 500 (Ky. 1964) is misplaced. The holding in Moore is based on a situation in which the competency of a young child was properly raised. Id. In the appeal before us, Clemans did not raise a genuine issue of E.C.’s competency. If he had, then our examination would be different. However, when E.C.’s competency was discussed during a pretrial hearing wherein Clemans maintained that E.C.’s medical records would establish she lacked the capacity to recall the events in question, and that she has a propensity to lie, the trial court preliminarily ruled that Clemans was free to seek proof of such records and the trial court would evaluate her competency. At no point prior to trial did Clemans’ attorney raise competency via such records. During the jury trial, Clemans, without his attorney, attempted to hand the trial court E.C.’s mental health records, which obviously was not permitted. Clemans’ attorney then raised competency before and after E.C.’s testimony without any substantiated grounds.

During E.C.’s testimony, which lasted approximately three minutes, she acknowledged that she understood the oath and swore to be truthful in her testimony. The Commonwealth initially asked E.C. if she remembered January of 2022, when B.I. “last came to [her] house.” E.C. said she did not remember.” The Commonwealth then asked if she remembered the day B.I. passed away, to which E.C. testified that she thought it was January 15, 2022.

When asked if she remembered the events of the day B.I. died, she testified to remembering “bits and pieces” but was not able to testify to timing. The Commonwealth then asked if E.C. rode the dirt bike on the date B.I. died, or if B.I. rode the dirt bike without her on the day he died. E.C. stated that she did not recall her or B.I. riding the dirt bike on the date B.I. died. E.C. then testified that B.I. did not ride the dirt bike alone on prior occasions. E.C. explained that she previously rode the dirt bike with B.I., and identified the method she would use to situate B.I. on the bike to protect him from injury. Clemans did not cross-examine E.C. Her testimony lasted less than five minutes and elicited her recollection that neither rode the dirt bike on the day B.I. died, and that she had not witnessed B.I. ride the dirt bike by himself.

Following E.C.’s testimony, Clemans renewed his objection based on competency grounds, claiming that E.C. clearly could not remember the events of January 10, 2022. The trial court acknowledged that E.C. was unable to identify the exact date that B.I. died. However, the trial court ruled that once she understood it was acceptable to simply recall her memories of the date B.I. died, E.C. was able to testify to having remembered certain information. The trial court found that E.C. clearly recalled her memory, which consisted of her recollection that neither she nor B.I. rode the dirt bike on the day he died.

We discern no abuse of discretion. The trial court's pre-trial determination that Clemans’ unsupported allegations that E.C. suffered from mental health issues and had trouble discerning the truth did not adequately raise a competency issue necessitating further examination. If the trial court is not satisfied that an opposing party alleged a sufficient basis to overcome the presumption of testimonial competency, then the trial court is not required to engage in any formal pre-trial hearing or determination assessing the competency of the witness to testify. See Swan v. Commonwealth, 384 S.W.3d at 97, overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020).

We also perceive no error in the trial court's ruling that E.C. was competent to testify. Despite Clemans’ argument that E.C. had trouble answering the Commonwealth's questions concerning January 10, 2022, it is not unusual for a child to testify to acts based on other events encountered on that same day as opposed to remembering the specific calendar date in which it occurred, nor is it unusual for a child to remember only bits and pieces of events that occurred two years prior. Consequently, we do not find an abuse of discretion.

In Jarvis, this Court explained that both the subject matter and the child's developmental level are critical. 960 S.W.2d at 469. In Jarvis, the five-year-old child testified at trial she witnessed her father throw a knife at her mother. Id. This Court found that, unlike questions requiring specific numbers, a question posing the occurrence of a single event was proper. Id. Similarly, here, E.C.’s testimony was generally confined to a single question of whether B.I. rode the dirt bike on the day he died. While E.C. was unable to recall the exact date or all circumstances surrounding his death, she was able to recall the nonoccurrence of a dirt bike accident. See Price, 31 S.W.3d at 891 (“Though [the thirteen-year-old witness] could not recollect all of the specific details surrounding her abuse by Appellant, that affected only the credibility of her testimony, not her competency to testify.”). Thus, we find the trial court acted within its discretion.

Moreover, the trial court is free to assess competency during witness testimony. For example, in Burton v. Commonwealth, this Court was presented with the competency of a witness who was severely disabled in a head-on motor vehicle accident that served as the basis for the defendant's criminal conviction. 300 S.W.3d at 141-42. On direct examination, the witness was difficult to understand, at one point having to utilize his hands to confirm which side of the road the accident occurred on. Id. at 142. This Court held that the trial court did not abuse its discretion in its continuous evaluation of the witness. Id. As the Court reasoned, the witness “was awake and attentive and he appeared to be listening to and understanding the questions.” Id. Moreover, the witness stated “yeah” when asked if he remembered the accident. Id. The defense, however, chose not to cross-examine the witness nor present evidence to discount his credibility. Id.

Clemans failed to sufficiently raise E.C.’s competency to testify, and the trial court did not abuse its discretion in permitting her testimony.⁸

7. The trial court did not err in admitting B.I.’s autopsy photographs.

As his final allegation of reversible error, Clemans argues the trial court erroneously permitted the jury to view fifteen photographs of B.I.’s autopsy. Following the trial court's ruling that the autopsy photographs were admissible, the Commonwealth called Dr. Springer to testify. During parts of his testimony, the Commonwealth displayed photographs while Dr. Springer simultaneously identified the displayed injury, the clinical significance of the injury, and his medical opinion as to how the injury occurred.

The standard of review for a trial court's evidentiary ruling is abuse of discretion. Rucker v. Commonwealth, 521 S.W.3d 562 (Ky. 2017) (citing Meskimen v. Commonwealth, 435 S.W.3d 526, 534 (Ky. 2013)). A trial court abuses its discretion if its decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). To evaluate the admissibility of the photographs, the Court must find that the photographs are relevant, and that the photographs’ probative value substantially outweighs their prejudicial effect. KRE 403; Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003).

Pursuant to KRE 403, even relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” As a generally well-accepted principle, a trial court's admission of gruesome photographs is rarely reversed under this standard. See Hall v. Commonwealth, 468 S.W.3d 814, 822 (Ky. 2015) (citing Brown v. Commonwealth, 934 S.W.2d 242, 248 (Ky. 1996)). However, even under the general presumption of admission, such photographs must still pass KRE 403’s balancing test. Hall, 468 S.W.3d at 823 (“We now make clear that in all cases in which visual media showing gruesome or repulsive depictions of victims are sought to be introduced over objection, as with all other types of evidence, the trial court must conduct the Rule 403 balancing test to determine the admissibility of the proffered evidence.”).

Clemans argues that the trial court abused its discretion by failing to review the photographs and conduct a KRE 403 analysis before admitting the evidence. Based on recent precedential authority, such a dereliction of duty mandates reversal absent a finding that the error was harmless. Hall, 468 S.W.3d at 828 (citing Winstead v. Commonwealth, 283 S.W.3d 678, 688–89, & n.1 (Ky. 2009))

During the pretrial conference on January 12, 2024, the Commonwealth expressed to Clemans’ newly obtained counsel that it intended to introduce roughly twelve autopsy photographs out of more than 200. The parties even discussed with the trial court the courtroom technology to be used to display these photographs.

Clemans made no written or oral motion in limine or otherwise to exclude or limit the Commonwealth's photographs. In fact, it was not until the third day of trial, on January 25, 2024, when the parties were already discussing other motions during an on-the-record bench conference, that the Commonwealth brought the issue up that it was calling Dr. Springer as the next witness. The Commonwealth informed the trial court that it intended to introduce fifteen photographs taken during B.I.’s autopsy and have Dr. Springer testify to injuries depicted therein and physically handed the trial court the proffered exhibits. The Commonwealth explained that Clemans had an opportunity to review the photographs and seemingly encouraged the defense to place any objections on the record prior to calling Dr. Springer.

In turn, Clemans supplied an oral “general objection,” simply noting that the body of a deceased child is prejudicial. Clemans’ counsel then made an additional specific objection relating to two photographs depicting B.I.’s genitals. Clemans argued that the two pictures were cumulative and posed unnecessary prejudice. The Commonwealth responded to the general objection first, stating that the basis for the photographs’ relevancy and expounded on the photographs’ probative worth, specifically considering the circumstantial nature of the prosecution's case.

More specifically, the Commonwealth explained that the pictures would aid the jury in understanding the extent of B.I.’s injuries to conclude that an assault, not an accident or resuscitative efforts, was the source of those injuries. Despite the Commonwealth's specific reference thereto, and perhaps anticipating a negative ruling with respect to the most graphic pictures, the Commonwealth further detailed its careful selection of the fifteen photographs, and narratively described the most prejudicial pictures and why their relevancy and probative worth made them necessary. They depicted an open incision, the removed mesentery tear, and scalp contusions. As for the two pictures noted in Clemans’ specific objection, the Commonwealth explained that both photographs were necessary, as one picture depicted the bruising to the penis, while the second picture depicted contusions that can only be seen by lifting the scrotum.

From our review of the record, we cannot discern whether the trial court viewed the proffered photographs. The trial court ultimately ruled in favor of the Commonwealth, stating that it accepted the Commonwealth's position and “factual necessity of the pictures.” The trial court further found that its understanding of the governing authority is that the prejudicial effect of the autopsy photographs is minimal, as juries are not as susceptible to “shock” as previously presumed. The trial court then expressed that if the defense has any future “procedural objections,” the trial court will rule on those at the time made.

Regarding whether the trial court abused its discretion by failing to view the pictures, we underscore that viewing the proffered photographs is mandatory. In our recent case, Carpenter v. Commonwealth, this Court restated the principle that a trial court abuses its discretion when it fails to view proffered evidence before weighing the evidence's probative value against its prejudicial effect pursuant KRE 403. 681 S.W.3d 36, 45 (Ky. 2023). Even when the parties fail to request the trial court review the evidence, the trial court must know what images are depicted in the video or photograph so it may conduct a KRE 403 analysis. Id. at 46.

Similarly, in Jones v. Commonwealth, this Court found that the trial court abused its discretion in “purposely never view[ing]” the challenged photographs before determining their admissibility. 237 S.W.3d 153 (Ky. 2007). In remanding the case to the trial court, we instructed it that it cannot abdicate its role as the gatekeeper of evidence by ruling on the admissibility of unseen images. Id. at 161.

Here, however, we are unable to establish from the record whether the trial court reviewed the proffered autopsy photographs prior to the impromptu conference immediately preceding the witness’ testimony. After reviewing the five-minute conference, it is clear the trial court did not review the photographs at that very moment. However, the trial court was aware the Commonwealth would utilize photographs along with Dr. Springer's testimony, and the trial court, under normal circumstances, would have reviewed proposed exhibits well in advance of five minutes before a party's intended introduction of the same. Therefore, we cannot speculate that the trial court did not have an opportunity to view the photographs in advance, as the defense clearly was able to do so. Clemans did not submit any other oral or written motions or objections regarding the photographs prior to the conference or thereafter. Accordingly, we cannot conclude that the trial court abused its discretion because we are unable to affirmatively conclude that it did not review the autopsy photographs before allowing them into evidence.

We also reject Clemans’ assertion that the trial court failed to conduct the requisite KRE 403 balancing test. Albeit brief and without any citations to any authority, the trial court heard the parties’ respective arguments. The trial court chose to adopt the Commonwealth's stated position on the photograph's evidentiary value, and ruled the photographs posed minimal prejudicial effect based on the jury's sensibilities as acknowledged by the appellate courts-i.e., gruesome pictures generally pass the KRE 403 balancing test. We acknowledge that the trial court could have better articulated its findings to aid this Court's review. Nonetheless, the trial court's oral ruling passes muster under our governing case law for the reasons stated below. See Cox v. Commonwealth, 553 S.W.3d 808 (Ky. 2018) (“We also do not require trial courts to make detailed written findings to support the many evidentiary rulings they must make in the course of a trial.”)

As to the photographs’ relevance and probative value, the trial court adopted the Commonwealth's position, as detailed above. Albeit brief, the trial court chose to accept the Commonwealth's position that the photographs aided the jury in perceiving the extent of trauma B.I. endured, and the intentional nature of injuries B.I. sustained. The trial court further accepted the Commonwealth's explanation that it chose two photographs of B.I.’s genitals, which Clemans specifically objected to as cumulative, due to the nature of the contusions being in two distinct areas, thus demonstrating their probative nature.

To distinguish the case sub judice from the central case in Hall, 468 S.W.3d 814, we underscore that the reversal in Hall was due to the trial court's categorical admission of twenty-eight photographs, a majority of which depicted the same injuries and were cumulative to other evidence and testimony provided to the jury, in which the defense based its objection, constituted error. Id. at 827. Here, there are only two photos that Clemans specifically objected to, and those were on cumulative grounds. The Commonwealth provided a sound and factual basis for the need for both photographs, which the trial court accepted. Therefore, unlike Hall, the trial court here was not required to provide specific findings in the record discussing whether all fifteen proffered pictures were impermissibly cumulative.

Regarding prejudice, the trial court attempted to articulate its reasoning by explaining, albeit inartfully, that appellate courts now generally permit these types of photographs on the grounds that the prejudicial effect is limited. See Hall, 468 S.W.3d at 822-23 (stating the general rule that “gruesome victim photos are per se admissible subject only to clearly delineated exceptions, such as when the body had been mutilated or has decomposed.”).

Considering Clemans’ objection was stated as a “general objection” simply based on the unsettling nature of photographs depicting a deceased child, the trial court's ruling sufficiently addressed the prejudicial effect of the photographs. Thus, considering the limited record on this issue, we find that the trial court conducted a KRE 403 analysis and opted to proceed on the merits.

Turning to the merits, we review the probative nature of the photographs. In contrast to prosecutions involving direct proof, and especially in cases where the cause and manner of death are at issue, the probative value of photographic evidence that buttresses the prosecution's theory is substantial in circumstantially based prosecutions. See, e.g., Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010) (concluding that autopsy pictures, when introduced in conjunction with a medical examiner's testimony explaining the cause and manner of the victim's injuries and death, are probative).

In Staples v. Commonwealth, we detailed a long line of precedent upholding “the Commonwealth's use of autopsy photographs introduced in conjunction with a medical examiner's testimony concerning the cause and manner of a homicide victim's injuries and death.” 454 S.W.3d 803, 825 (Ky. 2014). Similarly, here, the Commonwealth utilized the autopsy pictures to support Dr. Springer's opinion that BI's cause of death was due to inflicted trauma sustained during an assault and that the manner of death was homicide. In doing so, the Commonwealth sought to disprove the defense's contention that B.I. either suffered injury prior to the day in question, or that B.I. sustained injuries from an accident, including a dirt bike accident, an accidental fall from the couch, or by accidentally slipping on a wet floor.

After reviewing each photograph, we agree the evidence was highly probative and assisted the jury in ascertaining B.I.’s cause of death and that Clemans was the individual who inflicted the subject injuries. In Rucker, this Court reached the same conclusion, stating that the jury's determination that the defendant caused the injuries that resulted in the victim's death “was particularly difficult for the jury to deduce based on [the defendant's] denial of causing [the victim] a serious injury and the medical examiner's inability to pinpoint a cause of death.” 521 S.W.3d at 573. Similarly, Clemans denied causing any injury to B.I., and Dr. Springer was unable to articulate how the injuries caused B.I.’s death, except as to say the cumulative effect of the trauma, and potentially additional trauma not clearly evidenced by the autopsy, led to B.I.’s death. Here, the photographs aided Dr. Springer in explaining his opinion that B.I.’s injuries were consistent with inflicted, not accidental, trauma. The photographs were also substantially probative of Dr. Springer's opinion that B.I. sustained the injuries during an assault. For example, the photographs illustrated to the jury the sheer amount and size of B.I.’s contusions. The photographs showing contusions under B.I.’s scalp, behind his ears, on his genitals, and on his feet demonstrated that such injuries were not likely to be attributed to an accident.

Photographs revealing the sizeable contusion on B.I.’s abdomen were probative of Dr. Springer's opinion that B.I. suffered blunt force trauma, causing the mesentery tear. Photographs of the mesentery tear were probative in aiding Dr. Springer's findings, which cast doubt on Clemans’ theory that a possible bowel obstruction caused necrosis leading to the tear. As a general matter, all photographs depicting B.I.’s contusions were probative of the Commonwealth's theory that B.I. suffered the injuries on the day in question, as such bruising could not have gone unnoticed. In our view, notwithstanding Dr. Springer's testimony, there was no other evidentiary method of demonstrating the extent of B.I.’s trauma. Cf. Hall v. Commonwealth, 468 S.W.3d 814, 824 (Ky. 2015) (“When there is already overwhelming evidence tending to prove a particular fact, any additional evidence introduced to prove the same fact necessarily has lower probative worth, regardless of how much persuasive force it might otherwise have by itself.”). Id. In sum, we conclude the admitted photographs were highly probative.

Having identified the probative value of the photographs, we address the prejudicial effect the photographs had on the jury. This Court has previously explained that “photographs that are probative of the nature of the injuries inflicted are not excluded unless they are so inflammatory that their probative value is substantially outweighed by their prejudicial effect.” Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003). We recognize that photographs of a child's badly bruised, deceased body will evoke some measure of prejudice in a reasonable juror. However, this Court has permitted probative photographs depicting far more disturbing images than those in the appeal before us. See, e.g., Rucker, 521 S.W.3d at 573 (photographs and video recording depicting a severely decomposed body that was “bloated, discolored, and insects were present.”); Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015) (photographs of a body “charred nearly beyond recognition as a human corpse with the intestines protruding from his abdomen․.”). Indeed, perhaps the most gruesome picture was one depicting B.I.’s subsurface scalp contusion. In those pictures, B.I.’s scalp was essentially removed, so Dr. Springer could identify and evaluate the bruising. Even in this instance, our precedential authority permits such photographs where it is probative of the victim's contested cause of death. See Dant v. Commonwealth, 258 S.W.3d 12, 23 (Ky. 2008) (holding that autopsy photographs of a baby's scalp peeled back to reveal injuries were admissible because the cause of death was attributed to “injuries that resulted in fatal internal bleeding, and the photographs depicting her different types of hemorrhages were directly relevant to her cause of death and thus, properly admitted.”)

In sum, the challenged photographs contained significant probative value that was not substantially outweighed by any prejudicial effect or needless presentation of cumulative evidence. Therefore, the trial court's decision to admit the autopsy photographs was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Thus, we discern no error.

CONCLUSION

For the foregoing reasons, we affirm the Meade Circuit Court.

FOOTNOTES

1.   We utilize the minor child's initials to protect his anonymity.

2.   We omit Parents’ last name to further protect the child's anonymity.

3.   Clemans stated in a post-arrest interview that B.I. had taken a bath.

4.   During the pendency of the appeal, Clemans’ appointed counsel withdrew after filing Clemans’ initial brief. This Court permitted Clemans to proceed pro se and granted him leave to file a supplemental brief.

5.   Clemans’ pro se supplemental Reply Brief also argues that the trial court abused its discretion in failing to conduct a hearing on whether Parents were adequate victim representatives. Clemans’ argument further suggests that Parents are without the constitutional rights enumerated in Marsy's Law because they gained “victim” status by virtue of KRS. 421.500(1)(a). These arguments were not preserved, and we quickly dispose of each under a palpable review standard. RCr 10.26. Marsy's Law is clear that the term “victim” is one “defined by law.” Here, that law defining victim is found in KRS 421.500(1)(a). The rights enumerated in Marsy's Law remain constitutionally protected so long as the person asserting the right is a victim's representative. See, e.g., Robertson, 677 S.W.3d at 314 (father is a “victim”). In addition, Clemans supplies no authority for his contention that the trial court was required to conduct, sua sponte, a separate hearing to support its finding that Parents qualify as B.I.’s representatives under Marsy's Law.

6.   Due to a scheduling conflict, the trial court permitted Clemans’ sole witness, Dr. Feczko, to testify during the Commonwealth's case-in-chief. As a result, at the close of the Commonwealth's proof, Clemans rested his defense and renewed his motion for a directed verdict, which the trial court summarily denied.

7.   Clemans first objected to the jury instructions in his pro se motion for a new trial.

8.   Within this issue, Clemans embeds a separate and distinct argument that “the Commonwealth committed a gross “Napue Violation” by eliciting testimony from E.C., which it knew was “incorrect or false.” See Napue v Illinois, 360 U.S. 264, 269, 272 (1959). We will not opine on this issue except to state that whether B.I. was injured in a dirt bike accident on January 10, 2022, was a highly disputed fact. The Commonwealth simply questioned whether E.C. recalled B.I. riding the dirt bike on the day B.I. died.

OPINION OF THE COURT BY JUSTICE GOODWINE

All sitting. All concur.