RODGERS (PAUL) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: APRIL 9, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002287-MR
PAUL RODGERS
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CR-00276
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER AND VANMETER, JUDGES.
COMBS, CHIEF JUDGE: Paul Rodgers appeals from his conviction of firstdegree sexual abuse in Graves Circuit Court. After careful review of the record
and the law, we are compelled to vacate and remand for a new trial.
Rodgers and Tammy Sawisch conceived a child, M.D., in 1996.
Although she was born in 1997, Rodgers did not meet M.D. until the summer of
2005 when she was seven and one-half years of age. At that time, Rodgers and
Sawisch rekindled their relationship, and Rodgers began spending time with his
daughter. For a while, Rodgers lived in a tent in Sawisch’s back yard. On
weekends, he and M.D. would stay at the home of his mother.
Rodgers and Sawisch broke up in October 2005, and Rodgers moved
to Memphis. He did not have any more contact with M.D. In January 2006, M.D.
told her mother that Rodgers had touched her inappropriately during one of their
visits at his mother’s house. Sawisch contacted local authorities, and after
interviewing M.D., they obtained a warrant for Rodgers’s arrest. However, they
could not locate him until June 2007 when authorities in King County,
Washington, found him in a homeless shelter in Seattle.
Rodgers stood trial on July 31, 2008, and a jury convicted him of
sexual abuse in the first degree. This appeal follows.
Rodgers argues that his rights to due process and to a fair trial were
violated because the prosecution inappropriately discussed and defined
“reasonable doubt” in its closing argument. In its closing argument, the
Commonwealth expressly commented to the jury as follows:
I’ll ask you guys to remember that the standard is beyond
a reasonable doubt, it’s not beyond all doubt. Only God
knows what happens beyond all doubt. If any of you find
yourself in the jury room saying to yourself or thinking
that “yeah, I know the defendant did it, but I just don’t
think the Commonwealth proved their case,” well, I
submit to you that if you know he did it, then this case
was proven.
-2-
Rodgers immediately objected and made a motion for a mistrial or dismissal,
charging that the Commonwealth had altered its requisite standard of proof by
implying that a lower degree of proof should apply. The court declined to grant
the mistrial but admonished the jury by the following brief commentary: “There’s
a comment made on the burden of proof. It is beyond a reasonable doubt. Follow
the instructions on that.”
Prosecutors enjoy considerable latitude as to the content of closing
arguments. Berry v. Commonwealth, 84 S.W.3d 82, 90 (Ky. App. 2001). In
general, they may comment liberally and extensively on the evidence that was
presented. Maxie v. Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002). We may
reverse only if the “alleged prosecutorial misconduct is so egregious as to render
the trial fundamentally unfair.” Berry, supra. (quoting Partin v. Commonwealth,
918 S.W.2d 219, 224 (Ky. 1996)).
Our Supreme Court has provided a three-prong test to determine if
prosecutorial conduct during closing arguments renders an unfair trial. Those
factors are:
1) proof of defendant’s guilt is not overwhelming;
2) defense counsel objected; and
3) the trial court failed to cure the error with a sufficient
admonition to the jury.
All three conditions must be satisfied. Barnes v. Commonwealth, 91 S.W.3d 564,
568 (Ky. 2002). (citing U.S. v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994) and U.S.
v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)).
-3-
In the case before us, the proof of defendant’s guilt was not
overwhelming. It wholly involved testimony from the accused and the victim that
was mutually contradictory. The Commonwealth possessed no physical evidence
to prove that the touching occurred. Its strongest evidence was M.D.’s testimony,
which was indeed compelling. The only other possible witness to the alleged
abuse was Rodgers himself, and he testified that the misconduct had not happened.
Additionally, his mother testified that he never had the opportunity. She said that
she would have known if Rodgers and M.D. had been in the same room due to the
locations of where the family members slept. Rodgers also presented evidence that
Sawisch had threatened to take him to court to prevent him from ever seeing M.D.
again. This was exclusively a situation for the jury to act as fact-finder based on
the credibility of the witnesses. Therefore, the first prong of the Barnes test was
met. The second prong was satisfied by Rodgers’s prompt and spirited objection.
The third prong requires us to determine whether the trial court’s
admonition to the jury was sufficient to cure the error. Initially, we must
determine whether the Commonwealth’s statement was erroneous or legally
misleading – and if so, to what degree. The Commonwealth argues that it
committed at most harmless error – if any – in its commentary on the reasonabledoubt standard. We vigorously disagree.
The Kentucky Rule[s] of Criminal Procedure (RCr) 9.56 plainly
instructs that jury instructions should not include any definition of reasonable
doubt. Our Supreme Court has expanded the rule to prohibit counsel from
-4-
defining it at any point in a trial. Commonwealth v. Callahan, 675 S.W.2d 391,
393 (Ky. 1984). Over time, our courts have narrowly refined the rule to construe
as harmless error a statement that reasonable doubt does not mean “beyond all
doubt.” Johnson v. Commonwealth, 184 S.W.3d 544, 550-51 (Ky. 2005).
In this case, the Commonwealth bodaciously exceeded the Johnson
limit that reasonable doubt does not mean beyond all doubt. It declared, “if you
find yourself . . . thinking that ‘yeah I know the defendant did it, but I just don’t
think the Commonwealth proved their case,’ well I submit to you that if you
know he did it, then this case was proven.” (Emphases added.)
It is axiomatic that the Commonwealth bears the burden of proving
guilt. Kentucky Revised Statute[s] (KRS) 500.070. The Supreme Court of the
United States has emphasized that “[d]ue process commands that no man shall lose
his liberty unless the Government has borne the burden of producing the evidence
and convincing the factfinder of his guilt.” Speiser v. Randall, 357 U.S. 513, 526,
78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).
The Commonwealth’s wholly inappropriate invitation to the jury to
speculate is similar to the jury instructions addressed by our nation’s highest court
in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).
(overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475,
116 L.Ed.2d 385 (1991). In Cage, the trial court had included the phrase “moral
certainty” in its definition of reasonable doubt.1 Reversing Cage’s conviction, the
1
Not all states prohibit defining reasonable doubt as acknowledged by the U.S. Supreme Court
in Cage and other cases. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d
-5-
Court held that because of that phrase, “a reasonable juror could have interpreted
the instruction to allow a finding of guilt based on a degree of proof below that
required by the Due Process Clause.” Id. at 330. (Emphasis added.) The
Commonwealth clearly erred in urging the jury to employ a subjective, personal
standard far below the requisite objective, legal level of reasonable doubt. The
error is unmistakable.
Next, in order to satisfy the analysis of the Barnes test, we must
examine whether the court’s admonition was sufficient to cure the error. Under
Kentucky law, there is a presumption that “an admonition to the jury to disregard
an improper argument cures the error unless it appears the argument was so
prejudicial, under the circumstances of the case, that an admonition could not
cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001). (emphasis
added). (citations omitted).
In this case, the court overlooked and failed to address the
Commonwealth’s statement that it did not have to prove its case according to the
evidence. It merely recited that “the standard is beyond a reasonable doubt” –
without the further elaboration that the circumstances of this case required. The
court neglected to explain to the jury that the Commonwealth bore the burden to
prove reasonable doubt solely using the evidence – not by appealing to intuition,
common sense, common life experience, or subjective belief of the jury as the
Commonwealth’s argument clearly implied to be permissible. Although the
182 (1993).
-6-
written instructions stated that, “the burden of proof is on the Commonwealth,” we
conclude that the jury was undoubtedly tainted by the Commonwealth’s
commentary and that the court failed to offer a sufficient admonition to cure the
error – if indeed under the egregious circumstances any admonition could have
sufficed. Accordingly, we must vacate and remand for a new trial.
The tragedy of the decision that we are required to make is the
probability that M.D. will have to testify again, further victimizing her. Her
testimony could have been construed as compelling and credible, and the jury was
given sufficient evidence by which it may have found Rodgers guilty without the
objectionable prosecutorial commentary at issue. The jury worked hard and
deliberated for more than four hours. However, there is no way to ascertain the
import of the highly inappropriate argument other than to recognize the obvious –
that the jury was clearly invited to utilize a lesser standard of proof.
Our former court of appeals aptly addressed the duties incumbent
upon a prosecutor and the lamentable price levied upon the cause of justice when
those duties are not fulfilled. In Bowling v. Commonwealth, 279 S.W.2d 23 (Ky.
1955), the court observed:
It is regrettable that a case must be reversed because of
the zeal of a prosecuting attorney. However, it is the
obligation of the prosecuting attorney to conduct himself
with due regard to the properties of his office and to see
that the legal rights of the accused, as well as those of the
Commonwealth, are protected. It is his duty to prosecute
but not persecute. He should endeavor to see that justice
is meted out and that the accused is dealt with fairly.
-7-
Above all, there is an obligation that truth and right shall
prevail.
Also apropos of this case are the words of Justice Story penned some
two hundred sixty-five years ago:
I deny, that, in any case, civil or criminal, [juries] have
the moral right to decide the law according to their own
notions, or pleasure. On the contrary, I hold it the most
sacred constitutional right of every party accused of a
crime, that the jury should respond as to the facts, and the
court as to the law. It is the duty of the court to instruct
the jury as to the law; and it is the duty of the jury to
follow the law, as it is laid down by the court. This is the
right of every citizen; and it is his only protection. . . .
Every person accused as a criminal has a right to be tried
according to the law of the land, the fixed law of the
land; and not by the law as a jury may understand it,
or choose, from wantonness, or ignorance, or accidental
mistake, to interpret it.
U.S. v. Battiste, 2 Sumn. 240, 24 F.Cas. 1042, 1043 (Cir. Ct. Mass. 1835) (No.
14,545). (Emphasis added.) We have long adhered to the concept underlying the
reasonable doubt standard of proof as the “fundamental value determination of our
society that it is far worse to convict an innocent man than to let a guilty man go
free.” In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368
(1970) (Harlan, J., concurring).
Though we are remanding this case for a new trial, we will address
Rodgers’s other allegations of error because they are likely to arise again. He first
argues that he was denied a fair trial when the trial court excluded exculpatory
evidence. We disagree.
-8-
Rodgers contends that the court improperly excluded testimony that
Sawisch had been convicted of misdemeanor child abuse for slapping M.D. in
January 2005 as well as excluding approximately eighty letters that Sawisch had
written to Rodgers during their romantic relationship. He argues that the letters
were inculpatory and therefore admissible as “reverse 404(b)” evidence (evidence
that tends to negate the defendant’s guilt). Blair v. Commonwealth, 144 S.W.3d
801, 810 (Ky. 2004). Rodgers’s reasoning is that Sawisch’s abuse conviction
would have shown that M.D. lived in fear of her mother and that she was
controlled by her. The letters allegedly would have revealed Sawisch’s motivation
to falsely accuse Rodgers of abuse in order to deprive him of contact with M.D.
Kentucky Rule[s] of Evidence (KRE) 103(a) provides that exclusion
of evidence is erroneous if it affects a substantial right of the party seeking
admission. Our standard of review for evidentiary issues is whether the trial court
abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996)
(overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.
2008)). Our Supreme Court has defined abuse of discretion as a court’s acting
arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In order to be admitted, evidence must be relevant. KRE 402.
Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” KRE 401. However, even
-9-
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.” KRE 403.
In a recent discussion about reverse 404(b) evidence, this Court
recognized the well established right for defendants to present evidence of other
crimes of third parties “if in reason it tends . . . to negate [their] guilt of the crime
charged[.]” Ferry v. Commonwealth, 234 S.W.3d 358, 361 (Ky. App. 2007)
(quoting U.S. v. Stevens, 935 F.2d 1380, 1404 (3rd Cir. 1991)). We held that the
exclusion of such evidence without weighing the factors of KRE 403 constituted
an abuse of discretion. Id.
In the case before us, the trial court excluded testimony of Sawisch’s
previous conviction because it found the conviction was irrelevant. The conviction
occurred several months before the alleged abuse. The court supplemented its
finding by explaining that even if the conviction were relevant, its probative value
was outweighed by the likelihood of prejudice and confusion that it would cause.
The issue at trial was whether Rodgers – not Sawisch – had abused M.D. Because
the trial court properly conducted the balancing of factors as required by KRE 403,
we cannot conclude that it abused its discretion in excluding the evidence of
Sawisch’s misdemeanor child abuse conviction.
Nor do we conclude that the trial court abused its discretion in
excluding the letters that Sawisch wrote Rodgers. Rodgers sought admission of the
-10-
letters in order to demonstrate her acrimonious and recriminatory feelings toward
him. There were approximately eighty letters in all. The trial court excluded them,
reasoning that they contained information that would be prejudicial and irrelevant.
Though Rodgers argues that the exclusion prevented him from presenting a
defense, the trial court allowed Rodgers to use one of the letters to impeach
Sawisch’s testimony. In that letter, Sawisch wrote that if Rodgers hurt her, she
would take him to court so that he would never be able to see M.D. again. Rodgers
was able to utilize this evidence to present his defense theory to the jury. It did not
require admission of all eighty letters, which would have been merely cumulative
in nature.
Rodgers next argues that the trial court improperly allowed the
Commonwealth to characterize his move from Kentucky as evidence of guilt. We
disagree.
It is well established that proof of flight is admissible as evidence of a
sense of guilt. Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003);
Noah v. Commonwealth, 116 S.W.2d 315 (Ky. 1938). Flight is admissible as
evidence to be considered along with other evidence in the case. Hamblin v.
Commonwealth, 500 S.W.2d 73, 74 (Ky. 1973).
The Commonwealth argued to the jury that Rodgers fled Kentucky
and lived in homeless shelters in Memphis and Seattle in order to maintain his
anonymity, thereby evading prosecution. However, Rodgers testified in rebuttal
that he had lived in many different places throughout his life; that he had wanted to
-11-
leave Kentucky for some time; that a planned job and housing opportunity fell
through in Memphis; and that he went to Seattle to connect with his brother. The
jury was presented with evidence that it could weigh to decide whether Rodgers
had fled to escape prosecution or for a variety of other possible, plausible reasons.
Rodgers received – and utilized – the opportunity to rebut the Commonwealth’s
evidence. Therefore, the trial court did not err in allowing the Commonwealth to
characterize his actions as flight. Id.
Rodgers’s final argument is that he was denied due process because of
inadequate notice concerning one of the Commonwealth’s witnesses. Since we are
remanding for a new trial, this issue is moot. That witness has testified, giving
Rodgers more than adequate notice of what her testimony is likely to be at a
second trial.
We vacate and remand for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy A. Durham
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.