Daniel Scott Neal v. Commonwealth of Kentucky ( 2021 )

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Supreme Court of Kentucky
2019-SC-0649-MR
DANIEL SCOTT NEAL APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT
V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
NO. 12-CR-00646
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Daviess Circuit Court jury convicted Appellant, Daniel Scott Neal, of
twelve counts of possession of a matter portraying a sexual performance by a
minor under Kentucky Revised Statute (“KRS”) 531.335. The jury
recommended a sentence of two years’ imprisonment on each count to run
consecutively. The trial court sentenced Neal to a total of twenty years’
imprisonment, the statutory maximum. See KRS 532.110(1)(c). Neal now
appeals as a matter of right, arguing multiple points of error. See KY. CONST.
Section 110(2)(b). After careful review of the record and arguments of the
parties, we affirm the Daviess Circuit Court.
I. BACKGROUND
In May 2012, the Office of the Attorney General noticed activity it deemed
suspicious from a certain IP address. Investigators considered the activity
suspicious because of the number of files downloaded and the similarity of
those files to known child pornography. The files with which they were
concerned were located in a “shared” folder of a peer-to-peer file-sharing
network called Emule. Investigators could not see the contents of the files
because the files could not be downloaded from the shared folder. However,
investigators with the Attorney General’s Office were able to compare the files’
“hash values” to the “hash values” of known child pornography files in a
national law enforcement database. The hash value acts as “digital DNA” for
that specific file and therefore aids in the identification of child pornography
files even if the file name has been changed. Of the 607 files in the shared
folder, investigators determined that five of them matched known child
pornography files. Further investigation determined that the IP address
belonged to Neal.
On May 17, 2012, Tom Bell, a cybercrimes investigator with the Office of
the Attorney General, executed a search warrant on Neal’s home. Pursuant to
the search warrant, a desktop computer, laptop computer, external hard
drives, and CDs and DVDs used for data storage were seized. While at Neal’s
home, Bell made contact with Neal by telephone. Neal, who was a teacher and
track and cross-country coach at Hancock County High School, was at a state
meet for one of the teams he coached. Neal denied knowledge of the child
pornography but acknowledged he had used Emule for file sharing before
2
uninstalling it. Neal further stated that he was the sole user of the desktop
computer but that he and his wife Barbara1 shared the laptop.
Investigators analyzed the contents of the various devices seized from
Neal’s home, finding a total of over 400 items of suspected child pornography
on the desktop and laptop computers as well as the external hard drive. On
November 12, 2012, a Daviess County grand jury indicted Neal on thirty-nine
counts of possession of a matter portraying a sexual performance by a minor
for videos that were found in allocated space on the laptop computer.2 The
videos were found in folders created under the user account “Scott,” which,
according to Barbara, was password-protected. Barbara did, however, admit at
trial that she knew the password at one time but had since forgotten it. The
remaining items of suspected child pornography were located in unallocated
space, so they could not be recovered. Before trial, the Commonwealth
dismissed twenty-seven counts of the indictment so that trial proceeded on
only twelve counts.
Of the twelve videos upon which Neal went to trial, Bell opined that eight
were written to the hard drive of the laptop on April 7, 2012, at 5:39 p.m., and
four were written to the hard drive of the laptop on May 3, 2012, at 9:42 p.m.
The Commonwealth presented evidence that Barbara was at work on May 3,
1 Scott and Barbara Neal were married during the time period at issue in this
case. However, at the time of Neal’s trial, the two were divorced. We refer to Barbara
Neal as Scott Neal’s ex-wife in the remainder of this Opinion.
2 Allocated space contains active files on a computer that have not been deleted.
Once a file is deleted from the computer, it moves from allocated space to unallocated
space, where it remains until the space on the drive is written over.
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2012, at the time when the four videos were written to the hard drive. Neal
presented evidence that he was at his mother’s house on April 7, 2012, when
the eight videos were written to the hard drive.
Bell testified that the videos ranged in length from less than thirty
seconds to over an hour. During trial, the Commonwealth played excerpts of
each of the videos for the jury which ranged in length from about thirty
seconds to approximately two minutes. Neal never disputed that the videos
contained images of child pornography.
The Commonwealth also presented evidence that investigators located
hundreds of encrypted files on the laptop computer. However, because they
were encrypted, the files could not be recovered or examined. Neal
acknowledged during his testimony to encrypting files, specifically student
records and personal financial documents. Bell also found a copy of the August
2009 edition of “Modern Boylover Magazine” in PDF format. Bell read the titles
of the articles contained in the magazine to the jury including, “Top Ten
Reasons Why Boys Should Get an Adult Friend”; “The Joys of Drawing Boys”;
“The Expatriate Boylover Living and Working in a Foreign Country”; “Ten
Boylove Novels You Must Read Before You Die (Or Go To Jail)”; “Making the
Case for Full Disk Encryption”; and “The Gross Indecency of Michael Jackson.”
The magazine was located on the desktop computer in a previous installation of
Windows under the “Scott” user account in a folder with various school-related
files. Several of the encrypted files contained “MBM” in the file name. Although
the Commonwealth posited that the “MBM” stood for “Modern Boylover
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Magazine,” Neal testified that he may have used the initials “MBM” on
documents related to the book “To Kill a Mockingbird.”
On the laptop computer, Bell found evidence of a school-issued iPad that
had previously been synced to that computer. Although the iPad was not
recovered during the execution of the search warrant, Bell was able to analyze
its contents because it was backed up to the laptop. The iPad was registered to
an email address of “scott.neal” at the Hancock County school district. On the
iPad, Bell found traces of the following internet searches: “privacy issues –
deleted files can be recovered”; “how to safely secure a hard drive from forensic
examination”; and a news story about a man going to prison after
“accidentally” downloading child pornography.
Finally, on the desktop computer, Bell found items related to fifty-nine
internet newsgroups under an old installation of Windows. The newsgroups
were found in a program registered to “Daniel Neal,” and the topic of discussion
in many of the newsgroups was young boys. Bell found evidence that the
“Daniel Neal” account had sent a message to at least one of the newsgroups
explaining how to share files in separate parts in order to avoid detection. Neal
admitted to previously interacting with newsgroups about Ford Mustangs and
high school cross-country but denied knowledge of the newsgroups found
during the investigation.
Neal also presented evidence to the jury from multiple witnesses that he
had a good reputation in the community. The trial court, however, prevented
those witnesses from testifying to their personal opinions of Neal’s character.
5
Neal’s cousin testified that she witnessed Barbara watching homosexual
pornography on the laptop, but the trial court prevented her from testifying to
any statements Barbara may have made to her about Barbara’s “interest” in
homosexual pornography.
After hearing all of the evidence, the jury found Neal guilty of all twelve
counts of possession of a matter portraying a sexual performance by a minor.
The jury recommended a sentence of two years on each count to run
consecutively for a total of twenty-four years. The trial court sentenced Neal to
the statutory maximum of twenty years in prison. Further facts will be
discussed as necessary to our analysis.
II. ANALYSIS
On appeal, Neal argues the trial court erred in numerous ways. He
alleges the trial court erred: (1) in allowing the Commonwealth to play the
pornographic videos for the jury; (2) in failing to dismiss the indictment; (3) in
allowing the Commonwealth’s expert to testify; (4) in admitting certain other
acts evidence under Kentucky Rule of Evidence (“KRE”) 404(b); (5) in excluding
evidence of his character; (6) in excluding evidence of his ex-wife’s supposed
“obsession with homosexual male pornography;” (7) in denying his motion for a
directed verdict; and (8) in failing to give the jury an innocent-possession
instruction. We will review each of these arguments in turn.
A. The trial court did not err in admitting the pornographic videos into
evidence.
Neal’s first allegation of error lies in the trial court’s admission of the
actual pornographic videos with which he was charged in the indictment. This
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issue was preserved by Neal’s multiple pretrial motions to exclude the playing
of the videos to the jury and his motion for a new trial. We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion. Little v.
Commonwealth, 272 S.W.3d 180, 187 (Ky. 2008). A trial court abuses its
discretion only where its decision is “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Neal argues that he stipulated that the videos with which he was charged
contained child pornography. He further argues that because he stipulated to
their content, showing the videos themselves had “virtually no probative value
at all” and that “the prejudicial effect is so great that it is immeasurable.” He
argues that the videos were inadmissible under KRE 403 which allows relevant
evidence to be excluded “if its probative value is substantially outweighed by
the danger of undue prejudice.”
Under KRE 401, relevant evidence is defined as “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.” Under KRE 402, “[a]ll relevant evidence is admissible”
unless otherwise excluded by the law or our rules of evidence. “Evidence which
is not relevant is not admissible.” KRE 401. However, under 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
7
presentation of cumulative evidence.” Unduly prejudicial evidence has been
defined as evidence that “appeals to the jury’s sympathies, arouses its sense of
horror, provokes its instinct to punish, or otherwise may cause a jury to base
its decision on something other than the established propositions in the
case.” Richmond v. Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017)
(quoting Butler v. Commonwealth, 367 S.W.3d 609, 615 (Ky. App. 2012))
(internal quotation marks omitted).
We first note that there is no stipulation in the record. Neal argued
throughout the proceedings that he was not contesting the content of the
videos, but any stipulation must be agreed upon by both parties. Furthermore,
even if offered, “the Commonwealth is not obligated to accept an offer of
stipulation just because it has been presented.” Helton v. Commonwealth, 595
S.W.3d 128, 136 (Ky. 2020). Instead,
[t]his Court has repeatedly held that “a stipulation offer cannot
provide the foundation for a KRE 403 argument on appeal”
because “the prosecution is permitted to prove its case by
competent evidence of its own choosing, and the defendant may
not stipulate away the parts of the case that he does not want the
jury to see.”
Pollini v. Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005) (quoting Johnson v.
Commonwealth, 105 S.W.3d 430, 438-39 (Ky. 2003)); see also Payne v.
Commonwealth, 623 S.W.2d 867, 877 (Ky. 1981) (“This court knows of no rule
or principle of law that requires the Commonwealth’s Attorney to try his case
by stipulation.”). As we stated in Helton, “even if [Neal]’s arguments … could be
viewed as an offer to stipulate to the content of the videos, the Commonwealth
8
was still entitled to present relevant evidence of its choosing, including the
videos. As always, the Commonwealth’s evidence remains subject to KRE 403.”
595 S.W.3d at 136.
In order to determine the relevancy and probative value of the proffered
evidence, we must first understand what the Commonwealth needed to prove
to secure a conviction for the charged crime. A person is guilty of possession of
a matter portraying a sexual performance by a minor “when, having knowledge
of its content, character, and that the sexual performance is by a minor, he…
[k]nowingly has in his…possession or control any matter which visually depicts
an actual sexual performance by a minor person.” KRS 531.335(1)(a). As such,
the essential elements are (1) knowingly having possession or
control (2) of a visual depiction (3) of an actual sexual performance
by a minor, and (4) having knowledge of its contents. The statute
contains two separate mental states: the defendant must know the
content of the images and videos (i.e., that they depict a sexual
performance by a minor) and the defendant must knowingly
possess the images or videos.
Crabtree v. Commonwealth, 455 S.W.3d 390, 396 (Ky. 2014).
In this case, the Commonwealth did not seek to admit each of the videos
in their entirety. It only sought to admit portions of each of the videos. The trial
court reviewed those videos in chambers before ruling on their admissibility.
The court then found the videos were the most relevant evidence the
Commonwealth could offer to prove that the videos did, in fact, contain an
actual sexual performance by a minor. The trial court further found that the
probative value of the videos was not substantially outweighed by the danger of
undue prejudice to Neal.
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We cannot hold the trial court abused its discretion in making this
determination and allowing the videos to be played to the jury. We first note
that although the Commonwealth asked during the trial that the videos be
sealed in the record and made available for appellate review, the videos
themselves were not included in the record on appeal. “It has long been held
that, when the complete record is not before the appellate court, that court
must assume that the omitted record supports the decision of the trial court.”
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). There is no
doubt in this case that “the videos themselves were highly probative of the fact
that they did, in fact, contain child pornography.” Helton, 595 S.W.3d at 136.
“While the very nature of child pornography videos renders them inherently
prejudicial,” the videos were the best evidence to prove at least some of the
elements of the offense. As such, in this case, the risk of undue prejudice did
not outweigh the probative value of the videos, and the trial court did not
abuse its discretion in allowing the videos to be shown to the jury.
B. The trial court did not err in refusing to dismiss the indictment.
Neal next argues that the trial court erred in denying his motion to
dismiss the indictment. This issue is preserved by Neal’s pretrial motions to
dismiss and post-trial motion for a new trial. Neal argues that the trial court’s
denial of his motion to dismiss denied him his rights to due process and
fundamental fairness.
In arguing that the trial court should have dismissed the indictment
pending against him, Neal emphasizes the timeline of the events in his
10
prosecution. Although not dispositive of this issue, a limited understanding of
the timeline is necessary to understand his argument.
The Office of the Attorney General first noticed suspicious activity from
Neal’s IP address in May 2012 and began its investigation. Neal was thereafter
indicted on November 20, 2012. The case remained pending against him for
several years. In May 2018, Bell stated in a report, “In my review I did not find
any files that indicated that the user interacted with the video files listed in the
indictment.” Based on this report, Neal filed a motion to dismiss the
indictment, arguing that the Commonwealth could not muster proof beyond a
reasonable doubt to convict him. Subsequent to Neal’s motion to dismiss, Bell
wrote a supplemental report in which he stated that he re-analyzed the original
data using new software and found evidence that the files had been interacted
with. Then, on April 26, 2019, Neal filed another motion to dismiss the
indictment and motion to exclude Bell from testifying. The trial court entered a
written order denying Neal’s motions to dismiss and exclude Bell’s testimony
finding that a continuance of the trial was an adequate remedy. The trial
proceeded in July 2019.
“This Court has consistently held that a trial judge has no authority to
weigh the sufficiency of the evidence prior to trial or to summarily dismiss
indictments in criminal cases.” Commonwealth v. Bishop, 245 S.W.3d 733, 735
(Ky. 2008) (citing Commonwealth v. Hayden, 489 S.W.2d 513, 516 (Ky. 1972);
Barth v. Commonwealth, 80 S.W.3d 390, 404 (Ky. 2001); Flynt v.
11
Commonwealth, 105 S.W.3d 415, 425 (Ky. 2003)). There are only limited
circumstances within which a trial court is
permitted to dismiss criminal indictments in the pre-trial stage.
These include the unconstitutionality of the criminal statute,
Hayden, 489 S.W.2d at 514–515; prosecutorial misconduct that
prejudices the defendant, Commonwealth v. Hill, 228 S.W.3d 15,
17 (Ky. App. 2007); a defect in the grand jury proceeding, Partin v.
Commonwealth, 168 S.W.3d 23, 30–31 (Ky. 2005); an insufficiency
on the face of the indictment, Thomas v. Commonwealth, 931
S.W.2d 446 (Ky. 1996); or a lack of jurisdiction by the court
itself, RCr 8.18.
Id. None of those limited circumstances exist in this case. “[I]t [is] not the
province of a trial judge to evaluate evidence in advance in order to decide
whether a trial should be held…. [T]he proper time for such an evaluation is
upon motion for a directed verdict.” Commonwealth v. Isham, 98 S.W.3d 59, 62
(Ky. 2003) (citing Commonwealth v. Hicks, 869 S.W.2d 35, 37 (Ky. 1994)).
Accordingly, the trial court did not err in denying Neal’s motions to dismiss the
indictment.
C. The trial court did not err in allowing the Commonwealth’s expert
witness to testify.
Neal’s next claim of error lies in the trial court’s refusal to disqualify the
Commonwealth’s expert witness, Bell, from testifying. This argument is closely
tied to Neal’s previous argument regarding the trial court’s refusal to dismiss
the indictment. In essence, Neal argues that because Bell “diametrically
change[d] his testimony,” his testimony should have been disqualified as
unreliable. This issue is preserved by Neal’s pretrial motion to exclude and
post-trial motion for a new trial.
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This Court reviews a trial court’s ruling on the admissibility of expert
testimony for an abuse of discretion. Miller v. Eldridge, 146 S.W.3d 909, 915
(Ky. 2004). Trial courts have a “considerable breadth of discretion…in
performing their gate keeping function under KRE 702.” Toyota Motor Corp. v.
Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (citing Sand Hill Energy, Inc. v. Ford
Motor Co., 83 S.W.3d 483, 489 (Ky. 2002), vacated on other grounds by Ford
Motor Co. v. Smith, 538 U.S. 1028 (2003)). Further, “a reviewing court must
‘give great deference to the trial court's ruling and reverse only in
circumstances of clear abuse.’” Id. (quoting Sand Hill Energy, Inc., 83 S.W.3d at
489).
This Court has made clear,
Expert opinion evidence is admissible so long as (1) the witness is
qualified to render an opinion on the subject matter, (2) the subject
matter satisfies the requirements of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993), (3) the subject matter satisfies the test of relevancy set
forth in KRE 401, subject to the balancing of probativeness against
prejudice required by KRE 403, and (4) the opinion will assist the
trier of fact per KRE 702.
Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). In turn, KRE 702
provides,
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods;
and
(3) The witness has applied the principles and methods reliably to
the facts of the case.
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Neal argues that because Bell changed his opinion, the opinion was not
reliable and therefore should have been excluded. However, the reliability
determination under Daubert and KRE 702 is not a credibility determination.
As we have previously stated, “the consideration of reliability entails an
assessment into the validity of the reasoning and methodology upon which the
expert testimony is based.” Gregory, 136 S.W.3d at 39 (internal quotation
marks and citation omitted). The trial court’s gatekeeper function in this area
is “not designed or intended to assess the weight of the testimony; this role is
reserved for the jury.” Epperson v. Commonwealth, 437 S.W.3d 157, 165 (Ky.
App. 2014). “It is only where the testimony is so incredible on its face as to
require its rejection as a matter of law that the jury will not be permitted to
consider it.” Daulton v. Commonwealth, 220 S.W.2d 109, 110 (Ky. 1949).
In this case, the trial court denied Neal’s motion to exclude Bell’s
testimony finding that “with technology advancements and software changes, it
is not uncommon for new evidence to be developed in this type of case.” Neal’s
arguments did not go to “the validity of the reasoning and methodology upon
which” Bell’s testimony was based. See Gregory, 136 S.W.3d at 39. Instead, his
arguments focused on Bell’s credibility, given that he changed his opinion after
receiving Neal’s motion to dismiss based on his prior opinion. This is not a
sufficient reason for the trial court to exclude Bell’s expert testimony. Further,
Bell’s testimony was not “so incredible on its face as to require its rejection as a
14
matter of law.” Daulton, 220 S.W.2d at 110. Accordingly, the trial court did not
abuse its discretion in denying Neal’s motion to exclude Bell’s testimony.
D. The trial court did not err in admitting KRE 404(b) evidence.
Neal next argues that the trial court erred in admitting various pieces of
KRE 404(b) evidence. His brief to this Court does not specify any particular
piece of evidence to which he is objecting but instead argues “the trial court
erred in its admission of a myriad of uncharged, unrelated and
mischaracterized documents and testimony.” The record contains two notices
by the Commonwealth of its intention to introduce KRE 404(b) evidence. It also
contains a motion in limine and two objections to the introduction of KRE
404(b) evidence filed by Neal. Finally, it includes a memorandum filed by each
party in support of its position. Subsequent to the filing of these documents
and a hearing,3 the trial court entered a seven-page order denying Neal’s
objections to the KRE 404(b) evidence. We review a trial court’s decision to
admit KRE 404(b) evidence for an abuse of discretion. Commonwealth v.
King, 950 S.W.2d 807, 809 (Ky. 1997).
Through its KRE 404(b) notices, the Commonwealth provided notice that
it sought to introduce the following KRE 404(b) evidence:
(1) That Neal had other uncharged images of child pornography on devices
seized from his residence;
3 The written record indicates that a hearing was held; however, no pretrial
hearing recordings are included in the record on appeal.
15
(2) That Neal was a “member” and interacted with various “newsgroups” that
were involved with child pornography;
(3) That numerous encrypted files were found on Neal’s devices;
(4) That electronic searches were discovered in which Neal used certain
keywords to search for child pornography on his devices;
(5) That certain Emule artifacts found on Neal’s devices indicate that he
downloaded child pornography;
(6) That artifacts of certain files were found on Neal’s devices;
(7) That a magazine entitled “Modern Boylover Magazine” was found on one
of Neal’s devices; and
(8) That Neal had searched the following on his school-issued iPad:
a. “privacy issues: deleted files can be recovered?”;
b. “how to safely secure your hardrive [sic] from forensic examination
– Google search”;
c. “Man Downloads Child Pornography ‘Accidentally,’ Faces Up to 20
Years in Prison”;
d. “how to safely secure your hardcore [sic] from forensic
examination”; and
e. “how to safely secure your hardrive [sic] from forensic
examination.”
Because Neal did not specify which item or items of KRE 404(b) evidence he
alleges were admitted in error, we will only discuss the evidence generally and
do so relatively briefly.
KRE 404(b) provides that evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
16
conformity therewith. It may be admissible “[i]f offered for some other purpose,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” KRE 404(b)(1). It may also be
admissible if it is “so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be accomplished without
serious adverse effect on the offering party.” KRE 404(b)(2). KRE 404(b) is
exclusionary in nature. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky.
1994).
In order to determine if other bad acts evidence is admissible, the trial
court should use a three-prong test: (1) Is the evidence relevant for a purpose
other than criminal disposition? (2) Does it have probative value? (3) Is its
probative value substantially outweighed by its prejudicial effect? Purcell v.
Commonwealth, 149 S.W.3d 382, 399-400 (Ky. 2004).
In his briefs to this Court, Neal argues almost exclusively that the
proffered KRE 404(b) evidence was not inextricably intertwined with the
charged offenses such that its exclusion would seriously adversely affect the
Commonwealth’s case. Being inextricably intertwined, however, is only one
reason that KRE 404(b) evidence can be admitted at trial. Even if the evidence
is not inextricably intertwined, it may still be admissible at trial if it is relevant
for another purpose, such as “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1). In this
case, the Commonwealth argues that the proffered evidence is relevant to
17
Neal’s knowledge of the items found on his computer, his intent to possess
them, and his lack of mistake in possessing them.
The trial court overruled all of Neal’s objections to the proffered evidence.
It found that the encryption programs and internet searches regarding
encryption were relevant to show that Neal attempted to conceal his possession
of child pornography. The court found the “Modern Boylover Magazine”
included an article advising its readers to encrypt files in order to evade
detection by law enforcement, and that the magazine and its articles were
relevant to show lack of accident or to counter an assertion that someone else
downloaded the files. It further found that evidence of the newsgroups was
relevant to counter a defense that Neal was unaware the files contained child
pornography, as most of the charged files contained minor males engaged in
conduct with adult men, and the newsgroups focused on minor males. In
determining probativeness, the trial court found that these items were all found
on devices owned by or issued specifically to Neal. Finally, the court found the
evidence was not overly prejudicial compared to its probative value. The trial
court, in its order, stated it would provide a limiting instruction to the jury.
During the trial, the court provided a limiting instruction to the jury regarding
testimony about other child pornography videos located on the computers but
did not, and was not asked to, provide an instruction on any of the other pieces
of KRE 404(b) evidence.
The trial court did not abuse its discretion in admitting the various
pieces of KRE 404(b) evidence. Each of the items was relevant to prove
18
knowledge, intent, or absence of mistake. Evidence of each was sufficiently
probative of Neal’s commission of the acts as all of the evidence was found on
devices under his user name or on devices issued specifically to him from his
employer. Finally, the probative value of these items was high, and such
probative value was not substantially outweighed by the evidence’s prejudicial
effect.
E. The trial court erred in excluding certain character evidence of Neal,
but that error was harmless.
Neal next argues that the trial court erred in excluding evidence of his
personal and professional accomplishments, overall good character, and
reputation for honesty and trustworthiness. We review the trial court’s decision
to exclude evidence for an abuse of discretion. Little, 272 S.W.3d at 187.
During Neal’s opening statement, the trial court ruled that although Neal
could introduce character evidence by way of testimony as to his general
reputation in the community or by testimony in the form of an opinion, he
could not introduce evidence of specific instances of his conduct. During the
trial, Neal testified, and the Commonwealth attacked his credibility. After he
testified, Neal called three witnesses to testify to his good character: Jerry
Smith, Denise Hayden, and Thomas McGahan. Each witness testified as to
Neal’s reputation in the community but was not permitted to testify any
further. Outside the presence of the jury, each witness testified to his or her
personal opinion of Neal’s good character by avowal. McGahan also specifically
testified to Scott’s trustworthiness. During the avowal testimony, only Hayden
testified to a specific instance of conduct. She testified to an instance when a
19
track team member unexpectedly lost a parent. Scott went to the funeral home,
fixed the boys’ ties, and generally supported them through the loss.
Under KRE 103(a)(2), an error excluding evidence is not preserved unless
“the substance of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked.” As we
explained in Henderson v. Commonwealth, “[t]o preserve a trial court's ruling
for appeal ... the substance of the excluded testimony must be provided to the
trial court” by way of an offer of proof “adducing what that lawyer expects to be
able to prove through a witness's testimony.” 438 S.W.3d 335, 339–40 (Ky.
2014) (citing KRE 103(a)(2)). We further explained that the offer of proof serves
two purposes: it “provides the trial court with a foundation to evaluate properly
the objection based upon the actual substance of the evidence[;]” and it “gives
an appellate court a record from which it is possible to determine accurately
the extent to which, if at all, a party's substantial rights were affected.” Id.
Because Neal’s argument to this Court is only partially preserved by the
avowal testimony, and he did not request palpable error review, we will only
review whether the specific testimony elicited during the offer of proof was
excluded in error.
Under KRE 404(a), generally, “[e]vidence of a person's character or a trait
of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion.” However, “evidence of a pertinent trait of
character or of general moral character offered by an accused” is admissible.
KRE 404(a)(1). KRE 405 governs how character evidence can be proven. “In all
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cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to general reputation in the
community or by testimony in the form of opinion.” KRE 405(a). Specific
instances of a person’s conduct, however, are only admissible “[i]n cases in
which character or a trait of character of a person is an essential element of a
charge, claim, or defense.” KRE 405(c). Further,
[t]he credibility of a witness may be … supported by evidence in the
form of opinion or reputation, but subject to these limitations: (1)
the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
KRE 608(a).
In the case before us, Neal elicited testimony on avowal of three
witnesses’ personal opinions of his general good moral character. Under KRE
404 and 405, this testimony was erroneously excluded. He also elicited
testimony of McGahan’s personal opinion of his trustworthiness. “[E]vidence of
a particular character trait will be relevant only if it tends logically to prove that
[the defendant] did not commit the specific crime charged. Thus, for example,
character for honesty is relevant to prove innocence of theft, fraud, and similar
crimes.” Crabtree v. Commonwealth, 455 S.W.3d 390, 414 (Ky. 2014) (internal
citations, quotation marks, and brackets omitted). Trustworthiness is not
relevant to the charge of possession of a matter portraying a sexual
performance by a minor. See id. However, because Neal testified on his own
behalf and his credibility was attacked, his character for truthfulness was at
issue. See id. (“If the Commonwealth had attacked [the defendant’s]
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truthfulness to undermine a statement he had made, or if he had taken the
stand, then his character for truthfulness would be at issue and thus relevant
and pertinent.”) Therefore, under KRE 608, the trial court erred in excluding
McGahan’s personal opinion of Neal’s trustworthiness.
Finally, Neal elicited testimony of a specific instance of his conduct that
occurred after a track team member lost a parent. The character traits
evidenced by this episode were not “an essential element of a charge, claim, or
defense,” and therefore, the trial court did not err in excluding that testimony.
KRE 405(c).
Having found the trial court erred in excluding some of Neal’s proffered
character evidence, we must now determine whether that error was harmless
under Rule of Criminal Procedure (“RCr”) 9.24. Under the harmless error rule,
errors may only be used as a basis to reverse or vacate a judgment if we cannot
“say with fair assurance that the judgment was not substantially swayed by the
error.” Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013). In this
instance, the erroneously excluded evidence consisted only of personal opinion
testimony from witnesses who were clearly biased in favor of Neal. The jury
was, however, permitted to hear about Neal’s reputation in the community as
having a good moral character. Given all of the other evidence elicited at Neal’s
trial, we can “say with fair assurance that the judgment was not substantially
swayed by the error.” Id.
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 F. The trial court did not err in excluding evidence of Neal’s ex-wife’s
supposed “obsession with homosexual male pornography.”
Neal next argues that the trial court erred in excluding evidence of his
ex-wife’s “obsession with homosexual male pornography.” He argues that this
evidence was relevant and material to his defense. We review the trial court’s
decision for an abuse of discretion. Little, 272 S.W.3d at 187.
Neal’s ex-wife, Barbara Neal, testified on behalf of the Commonwealth.
During cross-examination, defense counsel asked her if she watched
homosexual male pornography on the computers, whether she “ha[d] a thing
for” homosexual male pornography, whether she had a fetish, and whether she
ordered homosexual male pornography on pay-per-view. She denied all of these
activities. She did, however, admit to watching, with Neal, a certain television
show that was about “the homosexual lifestyle.”
During Neal’s case-in-chief, Melissa Bruce, his first cousin, testified. She
told the jury about an instance when she witnessed Barbara watching
homosexual male pornography on the laptop computer. Barbara did not know
Bruce saw this. Defense counsel then asked Bruce, “Did Barbara ever express
to you any interests in that regard that you felt disturbing?” The
Commonwealth objected on hearsay grounds. During the bench conference to
discuss the objection, defense counsel argued that Barbara had specifically
denied an interest in or fetish for male homosexual pornography and that
Bruce’s answer would go directly to Barbara’s credibility. After some arguing,
the trial court told defense counsel that Barbara would need to be called back
to the stand and given the opportunity to deny the specific conduct or
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statement before Bruce could testify in contradiction. Defense counsel then
asked Bruce if Barbara ever “express[ed] an interest in any type of TV show.”
The Commonwealth again objected, and the trial court again told defense
counsel that he “need[ed] to bring Barbara in. There is a proper way to do it.”
Bruce’s testimony ended shortly after, but the court told her that she
was subject to being recalled. Neal never called Barbara back to the stand, and
he did not recall Bruce or pursue that line of questioning any further.
Regardless of whether further testimony by Barbara was actually necessary
under our rules, the trial court did not exclude the evidence in its entirety. It
merely required Neal to ask Barbara about the specific statements or events
before he impeached her about those statements or events through Bruce. Neal
chose not to do so. Because the evidence was not actually excluded, we decline
to decide whether the trial court committed an error regarding this evidence.
G. The trial court did not err in denying Neal’s motion for a directed
verdict.
Neal next argues that the trial court erred in denying his motion for a
directed verdict. He argues primarily that the Commonwealth’s case was made
of circumstantial evidence that was inadequate to lead a reasonable juror to
convict him. He further points to facts, such as the Commonwealth’s expert
witness’s statement in one report that he “did not find any files that indicated
that the user interacted with the video files listed in the indictment,” to support
his argument.
Our directed verdict standard was firmly established in Commonwealth v.
Benham:
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On a 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 purposes of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony. On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly unreasonable for
a jury to find guilt, only then the defendant is entitled to a directed
verdict of acquittal.
816 S.W.2d 186, 187 (Ky. 1991). Neal was charged with multiple counts of
possession of a matter portraying a sexual performance by a minor. Under KRS
531.335(1)(a), a person is guilty of this offense “when, having knowledge of its
content, character, and that the sexual performance is by a minor, he or she:
(a) Knowingly has in his or her possession or control any matter which visually
depicts an actual sexual performance by a minor person.” We have previously
explained,
the essential elements are (1) knowingly having possession or
control (2) of a visual depiction (3) of an actual sexual performance
by a minor, and (4) having knowledge of its contents. The statute
contains two separate mental states: the defendant must know the
content of the images and videos (i.e., that they depict a sexual
performance by a minor) and the defendant must knowingly
possess the images or videos.
Crabtree, 455 S.W.3d at 396. In this case, the only element at issue is whether
Neal knowingly possessed the images or videos.
Because Neal argues about the circumstantial nature of much of the
Commonwealth’s proof, in this case, we find it necessary to reiterate that “[i]t
has long been the law that the Commonwealth can prove all the elements of a
crime by circumstantial evidence.” Commonwealth v. Goss, 428 S.W.3d 619,
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625 (Ky. 2014) (citing Commonwealth v. O'Conner, 372 S.W.3d 855, 857 (Ky.
2012) (citing cases going back to 1937)). This includes proof of knowledge. Love
v. Commonwealth, 55 S.W.3d 816, 825 (Ky. 2001).
In this case, the Commonwealth presented sufficient evidence for a
reasonable juror to find Neal guilty of possession of a matter portraying a
sexual performance by a minor. The child pornography videos that were the
basis of the indictment were found on the laptop computer under the user
account “Scott,” which was password protected. Some of those videos were
written to the hard drive of the computer on a date and time when Barbara was
at work. Further, an iPad, which was issued by Neal’s employer and registered
to him, was backed up onto the laptop. On the iPad, investigators found search
histories involving “accidentally” downloading child pornography and how to
protect a hard drive from forensic examination. A PDF version of “Modern
Boylover Magazine” was found on the desktop computer in a previous
installation of Windows under the “Scott” user account in a folder with various
school-related files. Under the evidence as a whole, it was not unreasonable for
a juror to find Neal guilty of possession of a matter portraying a sexual
performance by a minor, and therefore, the trial court did not err in denying
Neal’s motions for a directed verdict.
H. The trial court did not err in refusing to instruct the jury on
innocent possession.
Neal’s final argument is that the trial court erred in refusing to instruct
the jury on innocent possession. This issue was preserved by Neal’s request for
the instruction and submission of a proposed instruction. We review a trial
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court’s decision of whether to give the jury a requested instruction for abuse of
discretion. Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).
This Court has previously held that
under very limited circumstances, temporary, incidental
possession of child pornography does not amount to a criminal
offense under Kentucky law. Like the drug statutes, our child-
pornography statute “allows for a defense of innocent possession
where there is evidence that the possession came about
incidentally and continued no longer than reasonably necessary to
allow for lawful and appropriate disposal.” If the proof shows the
very limited circumstances of innocent possession, then a
defendant would be entitled to a jury instruction laying out the
defense.
Crabtree, 455 S.W.3d at 411 (citing Commonwealth v. Adkins, 331 S.W.3d 260,
267 (Ky. 2011)) (internal citation omitted). We explained that, for example, “the
person who accidentally stumbles upon child pornography and immediately
deletes it cannot be criminally liable, whereas the person who similarly
encounters such material but then chooses to keep it with no intent to turn it
over to law enforcement has violated the statute and committed the offense.”
Id.
In this case, there was no evidence that Neal “incidentally” or
“accidentally” came to possess the images of child pornography. Further, there
was no evidence presented that upon finding the images of child pornography,
Neal immediately deleted them or attempted to turn them over to law
enforcement. Accordingly, the trial court did not err in refusing to instruct the
jury on Neal’s defense of innocent possession.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Daviess Circuit
Court in this matter.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Matthew James Baker
Matthew J. Baker Attorney
W. Currie Milliken
Wesley Vernon Milliken
Milliken Law Firm
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Mark Daniel Barry
Assistant Attorney General
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