JEREME RILEY V. COMMONWEALTH OF KENTUCKY — MEMORANDUM OPINION OF THE COURT AFFIRMING

IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION” THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.

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RENDERED: OCTOBER 22, 2026 NOT TO BE PUBLISHED Supreme Court of Kentucky 2025-SC-0362-MR JEREME RILEY APPELLANT V. ON APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE NO. 24-CR-00365 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING A jury found Jereme Riley1 guilty of rape in the first degree, victim under 12; sodomy in the first degree, victim under 12; two counts of sexual abuse in the first degree, victim under 12; one count of intimidating a participant in a legal process; and being a persistent felony offender in the second degree. He was sentenced to life in prison with the possibility of parole pursuant to the jury’s recommendation. He now appeals as a matter of right. K Y . CONST . § 110(2)(b). We affirm the trial court. 1 Riley’s nickname is “Alabama,” and he was referred to by this name several times during the trial.

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2 I. Background S.W.2 is the victim in this case. She was ten years old at the time of the alleged offenses giving rise to this case.3 In March 2016, S.W., her mother, J.W., her father, K.W., and her three brothers lived in Henderson County. S.W.’s parents were addicted to methamphetamine. K.W. testified that he started using methamphetamine at this time because his mother was having health problems and he was suffering from mental health problems. He testified that he did not remember much of the time period in question because he was constantly high on methamphetamine. K.W. testified that he first met Riley through a friend in March 2016 when he and his wife were drinking. He further testified that his mother passed away about a month later on April 16, 2016, which triggered him to want to get high. K.W. knew that Riley could supply him with drugs, and he and S.W. walked from their home to a nearby gas station to meet Riley. He did not testify to the specific date that this interaction occurred, but he clarified that this interaction happened “about a month after” he first met Riley in March. Riley then drove them to their home, and K.W. gave Riley money. Riley left to get methamphetamine. Riley then returned with methamphetamine, and he got high with K.W. 2 To preserve anonymity, we identify victim and her parents by their initials. 3 S.W. was born in November 2005.

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3 Riley informed S.W.’s parents that he had an apartment in Evansville, Indiana.4 However, K.W. testified that he noticed that Riley was sleeping in their driveway, so he invited him inside of the family home. Riley then started living in the home, and K.W. stated that he lived in the home from late April 2016 until September 2016. K.W. testified that Riley did not pay rent during this time but provided S.W.’s parents with methamphetamine in exchange for housing. J.W. testified that she started sleeping with Riley in exchange for methamphetamine.5 She testified that Riley slept in the bedroom with her and her husband. They both testified that they continuously used methamphetamine during this time. They could not keep a job, so they often left the house to find a way to get money. There were several times that the children were left alone with Riley at the home. S.W.’s parents would also sleep for long periods of time due to their drug use. J.W. testified that when K.W. was not present, Riley was demanding, controlling, and intimidating. S.W. testified that during this time, Riley started to interact with her. She testified that it started with Riley asking how her day had gone at school. Riley then started to ask her whether she was interested in boys. Eventually, when her parents were gone, Riley asked her to go into her parents’ bedroom 4 Detective Eric Ramsey testified that he investigated this address, and he confirmed that it is not an actual address in Vanderburgh County. 5 The nature of this relationship is unclear. At the time of the Child Protective Services (CPS) investigation, J.W. informed Ashley Conrad, the family’s assigned CPS worker, that J.W., Riley, and K.W. were in a polyamorous relationship and that J.W. had feelings for Riley. At trial, J.W. acknowledged that she could have told Conrad this but blamed it on her being high and denied it being true.

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4 with him, away from her siblings. She testified that Riley had started by just talking to her in the bedroom, but Riley gradually started to initiate inappropriate sexual contact with her. Riley began by touching her arm, shoulder, legs, and thighs. She testified that this inappropriate touching eventually led to her being raped by Riley. She testified that Riley first raped her in May 2016, two weeks before school ended.6 She testified that on that day, Riley asked her to help him clean her parents’ bedroom. After cleaning the room, Riley asked her to come sit by him on the bed. Riley asked her questions about boys and relationships, and he began placing his hands on her inner thigh and her shoulder. She testified that Riley then asked her to lie down, and she complied out of fear. Riley then took his shirt off and asked her to lift her legs. He put his shirt underneath her and began touching her. She testified that Riley pulled her pants and underwear down and began to kiss her inner thighs. He then inserted his finger into her vagina and became more aggressive. She testified that Riley 6 The timeline of Riley moving into the family home was disputed at trial. During the first trial, Det. Ramsey testified that Riley moved into the home at the end of July 2016. However, Det. Ramsey was unclear on the dates during the second trial. He stated that he would have narrowed the dates down due to the victim’s statements and the initial police report. K.W. had previously told Det. Ramsey that Riley moved into the home late July 2016. During the second trial, K.W. testified that Riley would have moved into the home in April after his mother died. During J.W.’s testimony on cross-examination, J.W. agreed with defense counsel that Riley moved in July 2016. However, on re-direct, J.W. clarified that Riley moved in April 2016 when the children were still enrolled in school. S.W. could not recall the exact date that Riley moved in, but she knew it was sometime soon after her grandmother’s death and while she was still enrolled in school.

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5 then put his penis into her vagina. Afterward, she went to the bathroom to take a bath. S.W. testified that Riley initiated inappropriate sexual contact with her eight times in total over a period of time. She testified that Riley would kiss her thighs, stomach, breasts, and vagina. He would also use his hands to touch her thighs and breasts. She testified that the sexual contact usually lasted anywhere from fifteen to thirty minutes, but sometimes it lasted longer. Riley told her not to tell anyone, but if she did, he would come back, and it would be worse. Eventually, CPS removed S.W. and her siblings from their parents’ custody due to a substantiated report of risk of harm.7 S.W. testified that when CPS first became involved, she did not disclose the sexual abuse because she was afraid of being separated from her family. S.W. first disclosed to a therapist in 2019 that she was raped by Riley. At this time, while she and her siblings remained in foster care, her parents learned that she had been “touched” after she disclosed the sexual abuse. Conrad testified that there were two CPS reports regarding S.W.’s sexual abuse allegations; however, CPS did not investigate further because the report did not meet criteria. In 2021, S.W. attended Henderson County High School. In November 2021, S.W. initiated a meeting with her guidance counselor because she had been receiving anonymous Snapchat messages from an individual. The 7 This included drug use in the home and the needs of the children not being met.

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6 individual threatened to share nude photographs of her if she did not send more nude photographs. The school contacted Lieutenant Stuart O’Nan with the Henderson Police Department, who was the school resource officer at the time. Lt. O’Nan informed her that there was nothing that could be done because the messages were sent through an anonymous Snapchat profile, making it difficult to identify the individual responsible. She testified that this angered her and she blurted out: “Just like you guys . . . could not do anything when I spoke up in 2016.”8 She testified that she was referencing the first time she disclosed the rape to a therapist. While disclosing sexual abuse to Lt. O’Nan, S.W. identified Riley by his nickname “Alabama,” and described what his vehicle looked like. Lt. O’Nan then contacted Det. Ramsey, and Det. Ramsey took over the case. Det. Ramsey was able to figure out Riley’s identity by finding Riley’s previous traffic citations. One citation confirmed that Riley was in Henderson County on May 3, 2016, which confirmed that Riley was in the area during the time S.W. had indicated. Based on this information, Det. Ramsey was able to collect photographs of Riley. Det. Ramsey then presented a photo lineup to her, and she selected Riley’s photo out of the lineup. Riley was then indicted on nine counts of rape in the first degree, victim under 12; two counts of sodomy in the first degree, victim under 12; nine 8 It appears that S.W. misspoke, and she seemingly meant to say “2019.” In the same line of questioning, the Commonwealth clarified that she first disclosed the rape in 2019.

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7 counts of criminal abuse in the first degree, victim under 12; two counts of sexual abuse in the first degree, victim under 12; one count of intimidating a participant in a legal process; one count of third-degree terroristic threatening; and being a persistent felony offender in the second degree. Riley was first tried on October 29, 2024, and it resulted in a mistrial. Subsequently, he was tried again. His defense at trial was that S.W. lied about the sexual abuse because she was getting in trouble for the nude Snapchat messages. He further argued that there were inconsistencies regarding the date that she alleged he first raped her and when he would have been present in the home. On April 23, 2025, he was found guilty of one count of rape in the first degree, victim under 12; one count of sodomy in the first degree, victim under 12; two counts of sexual abuse in the first degree, victim under 12; one count of intimidating a participant in a legal process; and being a persistent felony offender in the second degree. Riley was sentenced to life on the rape and sodomy convictions, twenty and fifteen years on the sexual abuse convictions, and ten years for his intimidating a participant in the legal process conviction. He now appeals. II. Analysis On appeal, Riley argues the following: because there was no manifest necessity, the trial court erred when it declared a mistrial on October 29, 2024, preventing him from being retried; the trial court erred in overruling defense

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8 counsel’s Batson9 motion; the trial court erred in permitting the prosecutor to exceed the scope of cross-examination on redirect examination of S.W.; the trial court erred in allowing the Commonwealth to introduce evidence of drug trafficking pursuant to KRE10 404(b); the trial court abused its discretion in denying Riley’s motion for mistrial during the Commonwealth’s examination of K.W.; the trial court erred in denying Riley’s motion for a mistrial during the Commonwealth’s guilt phase closing argument; and the errors in this case amount to cumulative error. A. The trial court did not abuse its discretion when declaring a mistrial on October 29, 2024. Riley’s first trial was held on October 29, 2024. The trial lasted one day. At 3:33 P.M., the jury was taken back to the jury room to deliberate. Just over an hour later, the jury sent out a question regarding available details related to S.W.’s conversations with her therapist and details regarding the timeline. The trial court responded that it could not provide an answer, and that the jury had to make a decision based on the proof that was presented during the trial. At 5:50 P.M., the trial court brought the jury out to ask if they had a verdict. The jury informed the court that it did not. The trial court gave the jury an Allen11 charge and instructed it to return to deliberations. At 6:45 P.M., the trial court and the parties had the following discussion: 9 Batson v. Kentucky, 476 U.S. 79 (1986). 10 Kentucky Rules of Evidence. 11 Allen v. United States, 164 U.S. 492 (1896).

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9 Trial Court: The jury has sent security Officer Vincent to tell me that they still are at an impasse. There has been some movement. However, they feel like they’re getting aggravated. And I think everybody feels like they’re settled in on where they’re at. If you want me to give them another instruction and send them back, I will. Defense Counsel: I think you’ve already done what you can, Judge. Commonwealth: It is still fairly early. Trial Court: They started at 3:30. Defense Counsel: It’s been three hours, and if they’re indicating that they’re deadlocked and not moving, Judge, it doesn’t sound like they’re gonna move any more. Commonwealth: If there’s been some movement. Defense Counsel: You could ask the foreperson, Judge, if there’s further deliberations. . . . Trial Court: I can ask. I don’t know that that’s. . . . Defense Counsel: But it sounds like probably not. Trial Court: Bring them back and let me talk to them again. The jury was then brought back out. The foreperson informed the court that they were deadlocked at a vote of 8–4 and that further deliberations would not be “fruitful.” The trial court entered a written order declaring a mistrial, which stated: “After hours of deliberation, the jurors twice reported that they were unable to reach a unanimous verdict. The second time, the jurors reported that further deliberations would not be helpful.”

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10 On appeal, Riley argues that the trial court erred by declaring a mistrial on October 29, 2024, because there was no “manifest necessity” to do so. Riley therefore claims that his retrial violated the Double Jeopardy Clause.12 Riley concedes that this issue is unpreserved and requests palpable error review.13 “An error is ‘palpable’ only if it is clear or plain under current law . . . . Generally, a palpable error ‘affects the substantial rights of a party’ only if ‘it is more likely than ordinary error to have affected the judgment.’” Robertson v. Commonwealth, 677 S.W.3d 309, 319 (Ky. 2023) (quoting Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)). “Finally, manifest injustice is found only where, after consideration of the record, the defect alleged was ‘shocking or jurisprudentially intolerable’ and where ‘the error seriously affected the ‘fairness, integrity, or public reputation of the proceeding.’’” Id. (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). “The required showing is probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Id. (quoting Martin, 207 S.W.3d at 3). “When we engage in palpable error review, our ‘focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.’” Id. (quoting Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013)). We hold 12 KY . CONST . § 13 (“No person shall, for the same offense, be twice put in jeopardy of his life or limb. . . .”); U.S. C ONST . A MEND. V. (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . .”). 13 Kentucky Rules of Criminal Procedure (RCr) 10.26.

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11 that the trial court did not commit an error, palpable or otherwise, when declaring a mistrial on October 29, 2024. “Jeopardy attaches when the jury is impaneled and sworn.” Sneed v. Burress, 500 S.W.3d 791, 793 (Ky. 2016) (citing Cardine v. Commonwealth, 283 S.W.3d 641, 645–47 (Ky. 2009)). Here, jeopardy attached during the first trial because the jury was impaneled and sworn. Id. “Once jeopardy attaches . . . the prosecution of a defendant before a jury other than the original jury or contemporaneously-impaneled alternates is barred unless 1) there is a “manifest necessity” for a mistrial or 2) the defendant either requests or consents to a mistrial.” Id. (quoting Cardine, 283 S.W.3d at 647). First, we hold that there was a “manifest necessity” for a mistrial. “Manifest necessity has been described as an ‘urgent or real necessity.’” Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000) (quoting Stewart v. Commonwealth, 497 S.W.2d 226, 227 (Ky. 1973)). “The propriety of granting a mistrial is determined on a case by case basis.” Id. (citing Stewart, 497 S.W.2d at 227). “A classic situation in which a mistrial is manifestly necessary is when jurors are unable to agree on a verdict.” Id.; see also Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997) (“The most common example of ‘manifest necessity’ to grant a mistrial is when a jury is deadlocked and unable to reach a verdict.”). “[A] finding of manifest necessity is a matter left to the sound discretion of the trial court. Thus, a trial court’s grant of a mistrial will be overturned only if it is clearly erroneous or constitutes an abuse of discretion.” Scott, 12 S.W.3d at 684 (internal quotations omitted).

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12 As the Commonwealth mentions, the trial was around four and a half hours long. After deliberating for about three hours, the jury notified the court that they were deadlocked, and the court delivered an Allen charge. The jury then deliberated for another hour. It then sent a bailiff to tell the trial court that it was still at an impasse. The trial court brought the jury out again and asked the jury how the court could accommodate them in coming to a unanimous verdict. At that time, the jury foreperson stated clearly that it was not hunger or fatigue preventing the jury from reaching a unanimous verdict. Rather, the jury was divided. When asked whether further deliberations would be helpful, the foreperson indicated that they would not be. Thus, the record supports the trial court’s decision to grant a mistrial on the manifest necessity that the jury was deadlocked. Riley argues that Gray is unfavorable to the Commonwealth because this Court upheld the trial court’s declaration of a mistrial after the jury had been deadlocked for over ten hours, two of which occurred after the Allen charge. See Gray v. Commonwealth, 480 S.W.3d 253, 273 (Ky. 2016). However, Gray does not set a precedent that a mistrial is only appropriate if the jury deliberates for ten hours. We determine whether the trial court properly granted a mistrial on a case-by-case basis. Scott, 12 S.W.3d at 684 (citing Stewart, 497 S.W.2d at 227). In Gray, the trial lasted eleven days. Id. at 272. Therefore, because of the length and amount of evidence the jury had to consider, ten hours of

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13 being deadlocked was an appropriate amount of time to declare a mistrial. Here, the jury only heard about four and a half hours of evidence. Therefore, the trial court did not err when it found that three hours of the jury being deadlocked was an appropriate amount of time to declare a mistrial. Thus, “we see no evidence here jarring enough to displace the trial court’s determination.” Id. at 273. Second, Riley consented to the mistrial when he encouraged the court to declare a mistrial. When the trial court offered to give a second Allen charge, defense counsel responded: “I think you’ve already done what you can, Judge.” When the trial court granted a mistrial, Riley did not object. Therefore, Riley’s retrial was not barred. Sneed, 500 S.W.3d at 793 (citing Cardine, 283 S.W.3d at 645–47). B. The trial court did not abuse its discretion when it overruled defense counsel’s Batson motion. Riley argues that the trial court erred in overruling his Batson challenge to the Commonwealth’s use of a peremptory challenge to strike Juror 170. During voir dire, the Commonwealth used a peremptory strike to strike Juror 170. Riley objected to the Commonwealth’s peremptory strike: “I would object to him being struck by the Commonwealth. I didn’t hear anything done during voir dire to suggest any reason other than race to strike that juror.” This issue is preserved for appeal because Riley objected to Juror 170 being struck on the basis of racial discrimination, and the trial court overruled that objection.

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14 “Challenging prospective jurors on the basis of race violates the Equal Protection Clause.” Washington v. Commonwealth, 34 S.W.3d 376, 378–79 (Ky. 2000). “In Batson, the United States Supreme Court set out a three-step process for trial courts to follow in adjudicating a claim that a peremptory challenge was based on race.” Roe v. Commonwealth, 493 S.W.3d 814, 827 (Ky. 2015). “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race . . . .” Id. “[A]ll a defendant must show in raising a prima facie Batson case is an inference of racial discrimination in exercising a challenge to remove a juror from the venire. . . .” Id. at 828. The record is unclear regarding Juror 170’s race because Riley fails to indicate this juror’s race in his brief, and this Court is unable to view this individual on the video record. The Commonwealth immediately provided two race-neutral reasons for striking Juror 170. By allowing the Commonwealth to provide race-neutral reasons and ruling on the matter, the trial court implicitly determined that Riley established a prima facie case of racial discrimination. We will not disrupt the holding of the trial court on this prong, and we will proceed to Batson’s second prong. Because Riley made a prima facie showing, “the burden [shifted] to the Commonwealth to articulate ‘clear and reasonably specific’ race-neutral reasons for its use of a peremptory challenge.” Washington, 34 S.W.3d at 378– 79. “Like age and personal knowledge, a trial lawyer’s instinct or gut feeling can be the legitimate basis for a race-neutral reason to strike a juror of a

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15 protected class, but there must be some articulable, case-related reason attached to it.” Johnson v. Commonwealth, 450 S.W.3d 696, 705 (Ky. 2014). We review the trial court’s acceptance of the explanations proffered by the Commonwealth for an abuse of discretion. Id. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The Commonwealth provided two race-neutral reasons: (1) “Whenever I asked if a child may react differently to a crime than an adult, he did say that it depends on the kid” and (2) “When I asked about the delay in the disclosure, he was very visibly disturbed by that and very skeptical when we were talking about that delay and disclosure. And we did, everybody on my team saw that, including myself, and that’s why we struck him.” The trial court responded that it “observed a facial reaction . . . when that question was asked. The court then found a legitimate cause for the strike.” We accordingly hold that the Commonwealth provided a legitimate race-neutral reason for striking Juror 170 when it reasoned that Juror 170 was visibly disturbed and skeptical about the delay and disclosure. The proffered reason was related to the case because there was a significant gap in time between when S.W. alleged the abuse occurred and when she disclosed it. The trial court ruled that this was a legitimate race-neutral reason because it also witnessed Juror 170’s facial expressions when Commonwealth asked about the delay in disclosure. We will

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16 not question the trial court’s observations. Therefore, we will proceed to Batson’s third prong. Under Batson’s third prong, “the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination.” Washington, 34 S.W.3d at 379. Based on the evidence, we hold that the race-neutral reasons cited to the court by the Commonwealth for striking Juror 170 satisfied the requirements of Batson’s third prong. The Commonwealth’s main evidence was S.W.’s testimony. The crimes against S.W. occurred in 2016 when she was ten years old. However, S.W. did not disclose the abuse to law enforcement until 2021, and the second trial did not take place until 2025 when S.W. was nineteen years old. The Commonwealth had a legitimate interest in striking a juror who it believed would not believe S.W.’s testimony because of the delay in the disclosure. “A trial court’s decision on a Batson challenge is given great deference on appellate review because the trial court’s analysis will be based upon issues ‘peculiarly within the trial judge’s province,’ such as the ‘demeanor and credibility of the prosecutor.’” Ross v. Commonwealth, 455 S.W.3d 899, 906 (Ky. 2015). Because we give great deference to the trial court in determining whether the prosecutor’s strike is racially motivated, we will not disrupt the ruling of the trial court in this instance. Therefore, we affirm. C. The trial court did not abuse its discretion when it permitted the prosecutor to question S.W. on re-direct exanimation regarding the bloody washcloth.

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17 During the Commonwealth’s opening statements, it told the jury that S.W. would testify that she had to clean up her own blood after Riley raped her. However, on direct examination, S.W. did not testify regarding this evidence. Subsequently, on redirect, the Commonwealth asked: “Earlier you testified about how you had to clean yourself up afterwards. Was there anything about the washcloth that you noticed?” Riley then objected, arguing that the question exceeded the scope of cross-examination. He further mentioned that this testimony was from the first trial that resulted in a mistrial. The trial court ruled that “it does exceed the scope of cross; however, the court will allow it and would caution counsel to keep track of what you are doing. . . .” The Commonwealth then asked S.W.: “Was there anything you noticed about the washcloth when you were cleaning yourself up?” S.W. responded that “there was blood on it.” On appeal, Riley argues that the trial court committed error when it permitted the Commonwealth to exceed the scope of re-direct under KRE 611. “[T]he trial court’s rulings concerning limits on cross-examination are reviewed for abuse of discretion.” Commonwealth v. Armstrong, 556 S.W.3d 595, 604 (Ky. 2018) (quoting Davenport v. Commonwealth, 177 S.W.3d 763, 771 (Ky. 2005)). Under KRE 611(a), “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) [m]ake the interrogation and presentation effective for the ascertainment of the truth; (2) [a]void needless consumption of time; and (3) [p]rotect witnesses from

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18 harassment or undue embarrassment.” Under KRE 611(b), “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the trial court may limit cross- examination with respect to matters not testified to on direct examination.” Accordingly, “redirect examination should be limited to questions explaining matters that have been developed in cross-examination.” Brown v. Commonwealth, 174 S.W.3d 421, 431 (Ky. 2005) (citing White v. Commonwealth, 166 S.W.2d 873, 877 (Ky. 1942)). During its cross-examination, defense counsel questioned S.W. on various parts of her testimony, including the timeline of the abuse, the dates of disclosure, and whether she disclosed alleged abuse to get out of trouble. Defense counsel did not question S.W. regarding the details of the sexual abuse or whether she cleaned herself up after it occurred. Therefore, we agree with the trial court that the Commonwealth’s question exceeded the scope of cross- examination. Nevertheless, “trial courts have always had substantial discretion to allow departure from these norms . . . . The language of KRE 611(a), giving a trial judges ‘reasonable control over the mode and order of interrogating witnesses,’ is consistent with the wide discretion trial courts have always had over the nature and scope of redirect and recross examination.” Id. (citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 3.20[5], at 245 (4th ed. LexisNexis 2003)). We hold that under KRE 611(a), the trial court did not abuse its discretion in allowing the Commonwealth to ask S.W. about the blood on the washcloth. Defense counsel challenged S.W.’s credibility on cross-

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19 examination. This included suggesting that she fabricated the allegations of abuse to avoid disciplinary consequences at school. In response, the Commonwealth sought to rehabilitate her credibility by eliciting testimony concerning a physical manifestation that directly resulted from the alleged assault. Although outside the scope of Riley’s cross-examination, the evidence was relevant as to S.W.’s credibility. Furthermore, the trial court cautioned the Commonwealth to keep track of its evidence, and if it did not, it was going to be a “wide open back and forth.” Subsequently, the Commonwealth only asked S.W. about the washcloth and then ended its re-direct. We cannot hold that the trial court abused its substantial discretion in this instance, and affirm. D. The trial court did not abuse its discretion when it permitted the prosecution to produce evidence under KRE 404(b). Prior to Riley’s first trial, the Commonwealth filed a notice under KRE 404(c) regarding its intent to produce KRE 404(b) evidence at trial. Among other things, the Commonwealth sought to introduce evidence of Riley’s drug activity during the time of the abuse. Specifically, that Riley provided methamphetamine to S.W.’s parents, and that he gave methamphetamine to S.W.’s mother in exchange for sex. Riley objected to the Commonwealth’s notice. The trial court overruled Riley’s objection and allowed the Commonwealth to produce this evidence through the testimony of S.W.’s parents. Prior to Riley’s second trial, he renewed his objections to the Commonwealth introducing evidence that Riley was supplying drugs to S.W.’s parents. The trial court overruled this objection. At trial, S.W.’s father testified that Riley provided him with methamphetamine in exchange for housing.

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20 S.W.’s mother also testified that she started sleeping with Riley in exchange for methamphetamine. On appeal, Riley argues that the trial court committed error when it allowed the Commonwealth to introduce evidence of Riley’s drug activity under KRE 404(b) and KRE 403. Riley argues that it was improper because S.W. testified that Riley abused her while her parents were away from the home, and she did not testify that Riley was under the influence when the abuse occurred. “KRE 404(b) governs the admissibility of evidence of other crimes, wrongs, or acts. It provides that such evidence is ‘not admissible to prove the character of a person in order to show action in conformity therewith.’” Hernandez v. Commonwealth, 671 S.W.3d 217, 227 (Ky. 2023) (citing KRE 404(b)). It may, however, be admissible: (1) [i]f offered for some other purpose, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident; or (2) [i]f so inextricably intertwined with other evidence essential to the case that separation of the two . . . could not be accomplished without serious adverse effect on the offering party. KRE 404(b). In determining whether to admit evidence under KRE 404(b), the trial court must consider 1) whether the preferred evidence is relevant for some purpose other than to prove the defendant’s criminal disposition, 2) whether evidence of the other crime, wrong, or act is sufficiently probative of its commission by the defendant, and 3) whether the potential prejudice from admission of the preferred evidence substantially outweighs its probative value. Hernandez, 671 S.W.3d at 227 (citing Bell v. Commonwealth, 875 S.W.2d 882, 889–91 (Ky. 1994)). “In considering these factors, the trial court

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21 ‘must apply [KRE 404(b)] cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused’s propensity to commit a certain type of crime.’” Id. (citing Bell, 875 S.W.2d at 889–91). “We review a trial court’s decision to admit evidence under KRE 404(b) for abuse of discretion.” Id. (citing Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007)). We hold that the trial court did not abuse its discretion. This evidence falls squarely within the two exceptions laid out in KRE 404(b). First, under KRE 404(b)(1), this evidence showed that Riley had the opportunity to sexually abuse S.W. Riley had access to S.W.’s home during the time of the abuse because he lived in the family home while he supplied S.W.’s parents with methamphetamine. Furthermore, S.W.’s parents testified that they were not properly supervising her because they were high on methamphetamine or asleep during much of this time period. Second, we agree with the Commonwealth that Riley supplying S.W.’s parents with methamphetamine is “so inextricably intertwined with other evidence essential to the case that separation of the two . . . could not be accomplished without serious adverse effect on the offering party.” KRE 404(b)(2). “KRE 404(b)(2) allows the Commonwealth to present a complete, unfragmented picture of the crime and investigation[.]” Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013) (quoting Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003))

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22 (internal quotations omitted). Here, Riley’s supplying S.W.’s parents with methamphetamine was inextricably intertwined with the evidence because it provided context for Riley’s presence in the home. The evidence further established the lack of supervision over S.W. and explained how Riley was able to gain access to her by supplying her parents with methamphetamine. Under KRE 404(b)(2), the Commonwealth was permitted to present this evidence to the jury. Finally, under KRE 403, this evidence has probative value that substantially outweighs any potential for unfair prejudice. The jury could appropriately consider these acts because they fit squarely under the exceptions laid out in KRE 404(b). KRE 403; KRE 404(b)(1). This is true even in light of KRE 404(b)’s stringent prejudice standard.14 Therefore, we affirm on this issue. E. The trial court did not abuse its discretion in denying Riley’s motion for a mistrial based on the Commonwealth’s examination of K.W. 14 In Jenkins v. Commonwealth, this Court remarked: It should be noted that, technically, the prejudice/probative value inquiry under Bell and KRE 404(b) is a part of, but not necessarily all of, the prejudice/probative value inquiry required under KRE 403, which applies to relevant evidence generally and which allows for exclusion notwithstanding relevance when the evidence would be unduly prejudicial for any reason, not just because it invites an improper character inference. Trial courts thus should be mindful that the prejudice/probative value inquiry under KRE 403 is potentially broader than the similar inquiry Bell suggests is required under KRE 404(b). That does not mean, however, that in practice the two inquiries (if, indeed there are two inquiries) cannot be merged, as they often are. 496 S.W.3d at 435, 458 n.17(Ky. 2016).

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23 Riley next argues that the trial court abused its discretion by denying his motion for a mistrial during the Commonwealth’s questioning of K.W. During that questioning, K.W. described an incident during which he had returned home and noticed S.W. was upset. He stated that S.W. had a “look on her face” and that, despite her insistence to the contrary, he knew something was wrong because he “was a rape victim by [his] mom and dad.” Defense counsel objected. The trial court sustained the objection and admonished the jury it was to disregard the testimony. The Commonwealth instructed K.W. to continue, and he stated that S.W. “had this look on her face, the same look [he] had when [he] was four years old.” Defense counsel again objected, and the trial court again sustained the objection. The Commonwealth then instructed K.W. to discuss only what he observed that day. K.W. continued by stating that S.W. had tears in her eyes and looked confused, but that she continued to tell him that nothing was wrong, so he stopped asking. Later, the Commonwealth asked K.W. if he “[had] any doubt at all that these allegations [were] true?” Before K.W. could respond, defense counsel objected, and the trial court sustained the objection. Defense counsel then approached the bench and requested a mistrial on the basis of prosecutorial misconduct. The trial court overruled the motion and provided the following admonition to the jury: The court would admonish the jury that . . . they are the fact finders. They listen to all of the witnesses, look at the witnesses, hear how they testify, . . . see how they hold themselves. You’re the trier of the fact, and that is your job . . . . You are to disregard

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24 any attempt to solicit an opinion as to the truth or veracity from any witness. You are to do that yourself. “A mistrial is an extreme remedy for trial courts.” Lawless v. Commonwealth, 724 S.W.3d 679, 685 (Ky. 2025). “For a mistrial to be granted, there must be ‘a manifest necessity for such action or an urgent or real necessity.’” Id. (quoting Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985)). “[A] mistrial is acceptable only if there is an overwhelming probability that the jury will be unable to follow the court’s admonition and a strong likelihood that the effect of the inadmissible evidence would be devastating[.]” See Commonwealth v. Padgett, 563 S.W.3d 639, 647–48 (Ky. 2018) (quoting Sneed, 500 S.W.3d at 805 (Venters, J., dissenting)). A trial court’s ruling on a motion for a mistrial is well within its discretion, and this Court will not disturb that ruling absent a showing that the trial court abused its discretion. See id. at 645 (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004)). Riley argues that the Commonwealth’s questioning of K.W. amounted to prosecutorial misconduct and, therefore, a mistrial was required. Prosecutorial misconduct is “‘a prosecutor’s improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.’” Robinson v. Commonwealth, 647 S.W.3d 136, 143 (Ky. 2022) (quoting Commonwealth v. McGorman, 489 S.W.3d 731, 741–42 (Ky. 2016)). Prosecutorial misconduct can occur through improper questioning. Leavell v. Commonwealth, 671 S.W.3d 171, 183–84 (Ky. 2023) (citing Duncan v.

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25 Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). However, “[a]ny allegation of misconduct must be viewed in the context of the overall fairness of the trial.” Id. (citing McGorman, 489 S.W.3d at 742). And, “[t]o justify reversal, the Commonwealth’s misconduct must be ‘so serious as to render the entire trial fundamentally unfair.’” Id. (quoting Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)). “When the alleged misconduct is challenged by an objection, we will reverse ‘if proof of the defendant’s guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury.’” Baldwin v. Commonwealth, 723 S.W.3d 676, 697 (Ky. 2025) (quoting Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017)). K.W.’s testimony that he knew something had happened to S.W. because he had been sexually assaulted as a child was not in response to a direct question by the Commonwealth, and the Commonwealth re-directed K.W. to discuss only what he observed during the incident he was describing. The Commonwealth accordingly did not engage in improper questioning meant to persuade the jury to wrongfully convict Riley. Robinson, 647 S.W.3d at 143. Moreover, the jury was admonished to disregard that testimony. And, although the Commonwealth’s question regarding whether K.W. had any doubt that S.W.’s allegations were true was improper,15 it did not warrant a mistrial. 15 See Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) (holding “With few exceptions, it is improper to require a witness to comment on the credibility of another witness. A witness’s opinion about the truth of the testimony of another witness is not permitted.”).

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26 Defense counsel objected before K.W. could answer the question, the trial court properly admonished the jury that it is the sole arbiter of victim credibility, and proof of Riley’s guilt was sufficient to render any error harmless. Baldwin, 723 S.W.3d at 697. Riley further mentions that during Det. Ramsey’s testimony, who testified immediately prior to K.W., the Commonwealth asked Det. Ramsey if he had any reason not to believe the initial case report filed by Lt. O’Nan. But, again, defense counsel objected before Det. Ramsey could answer that question and the trial court sustained the objection. He likewise complains about Conrad’s testimony. Conrad, who testified after K.W., stated that she could “tell when a child is lying to [her] based on . . .” This testimony was not in response to a question posed by the Commonwealth, and her statement was cut off by an objection from defense counsel. That objection was sustained, and the trial court admonished the jury to disregard Conrad’s statement.16 Based on the foregoing, we hold that the trial court’s denial of Riley’s motion for a mistrial was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles[,]” and affirm. English, 993 S.W.2d at 945. F. The trial court did not abuse its discretion in denying Riley’s motion for a mistrial during the Commonwealth’s closing argument. During closing arguments, defense counsel argued that Riley did not move into the family residence until the end of July based on S.W.’s parents’ 16 Riley did not request a mistrial during either of the complained of portions of Det. Ramsey’s and Conrad’s testimonies.

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27 statements to Det. Ramsey. This was relevant because the jury instructions instructed the jury to find Riley guilty if it found that he committed the offenses in May 2016. During closing argument, the Commonwealth stated: You know, I’ve been a prosecutor for most of my career now as an attorney. And there is not much that gets to me at this point. But the things that you just heard, they really got to me. They say that this is about lies and deception. But the only person who has gotten up here today and said that he moved in, Riley moved in, in July of 2016 was defense counsel. Defense counsel objected on the basis that the Commonwealth informed the jury that defense counsel testified. The trial court instructed the jury: “Statements by both counsel and questions by counsel are not evidence. It is the answers given by witnesses that are the evidence in this case.” Subsequently, the Commonwealth stated: “The only person that has argued today that Riley moved in in July of 2016 was counsel. He has repeatedly tried to trick the witnesses into saying that Riley didn’t move in until July of 2016.” In response, defense counsel requested a mistrial on the basis that the Commonwealth was attacking counsel. The Commonwealth stated that it would move on and then said: “Don’t let this man hide behind the distractions that he’s presented through his attorney. They’re all nonsense. It’s always to trick and deceive. It is about lies and deception.” Defense counsel objected on the basis that the Commonwealth was inferring that defense counsel was lying to and deceiving the jury. The trial court instructed the Commonwealth to “quit attacking counsel,” and implied it would declare a mistrial if the attacks on defense counsel continued.

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28 On appeal, Riley argues that the Commonwealth’s statements resulted in prosecutorial misconduct that warranted a mistrial. “Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.’” Robinson, 647 S.W.3d at 143 (quoting McGorman, 489 S.W.3d at 741–42). “The misconduct can occur in a variety of forms, including improper closing argument.” Id. (citing Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016)). However, “we must always consider these closing arguments ‘as a whole’ and keep in mind the wide latitude we allow parties during closing argument.” Dickerson, 485 S.W.3d at 329 (quoting Miller, 283 S.W.3d at 704). We hold that the Commonwealth’s statements during closing argument did not amount to prosecutorial misconduct. First, with respect to the statements concerning the conflicting dates, the evidence presented at trial left the timing of Riley’s move into the family home disputed. Although defense counsel, relying on Det. Ramsey’s testimony, argued that Riley moved into the home at the end of July, S.W., K.W., and J.W. testified that Riley moved into the home in May, or shortly after K.W.’s mother died in April. Because the timing was disputed by the evidence and the parties presented competing accounts of when it occurred, both parties had latitude to argue their respective positions regarding the dates during closing argument. Furthermore, the trial court cured any misconduct when it admonished the jury. See Padgett, 563 S.W.3d at 647–48 (Ky. 2018) (quoting Sneed, 500 S.W.3d at 805 (Venters, J., dissenting)).

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29 As for Riley’s argument that the Commonwealth improperly implied that defense counsel was lying or attempting to deceive the jury, we hold that the statements did not amount to prosecutorial misconduct. We agree with the trial court that it was improper for the Commonwealth to suggest that defense counsel was lying to or attempting to deceive the jury. The Commonwealth directs us to Slaughter v. Commonwealth, which states: “Great leeway is allowed to both counsel in a closing argument. It is just that—an argument. A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position.” 744 S.W.2d 407, 412 (Ky. 1987) (holding “that the remarks . . . were well within the proper bounds of closing argument and certainly did not affect the outcome of the trial” when the prosecutor “criticized the defense counsel for presenting a ‘great octopus’ defense[,]” “accused counsel of pulling a ‘scam,’” and “questioned the sharpness of counsel.”). However, the Commonwealth’s suggestion that defense counsel was lying or attempting to deceive the jury, when made in the context of reasonably disputed evidence, falls outside the bounds of Slaughter. Nevertheless, we conclude that the trial court properly instructed the Commonwealth to refrain from attacking defense counsel. Following the court’s instruction, the Commonwealth moved on and did not engage in any further improper attacks on counsel. Accordingly, we hold that any error was harmless when the closing arguments are considered as a whole. See Robinson, 647 S.W.3d at 144 (“Nonetheless, we will not reverse a conviction even for prosecutorial

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30 misconduct if, in the whole context, the evidence of guilt is overwhelming, rendering the error harmless.”). Any improper personal attacks on defense counsel were harmless in light of the extensive testimony presented by S.W. concerning the sexual abuse. The Commonwealth’s closing argument, viewed as a whole, focused primarily on the evidence supporting the charges and S.W.’s account of the offenses. Thus, even assuming that some of the Commonwealth’s remarks crossed the line into improper personal commentary, those remarks were incidental to the Commonwealth’s overall argument and did not substantially influence the jury’s verdict. Additionally, the court appropriately admonished the jury. Riley also argues that he is entitled to dismissal due to the Commonwealth’s alleged prosecutorial misconduct. However, we hold that the Commonwealth’s statements during closing argument did not result in prosecutorial misconduct. For the reasons stated above, we reject Riley’s argument. G. There is no cumulative error. Riley requests reversal for cumulative error. Cumulative error is “the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally fair.” Brown v. Commonwealth, 313 S.W.3d at 577, 631 (Ky. 2010). “We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial.” Id. (citing Funk v. Commonwealth, 842 S.W.2d

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31 476, 483 (Ky. 1992)). “Where, . . . however, none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice.” Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34, 53 (Ky. 2002)). Here, because we do not find any of the errors prejudiced Riley, we decline to find cumulative error. III. Conclusion Based on the foregoing, we affirm. All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and Nickell, JJ., concur. Thompson, J., concurs in result only. COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Christopher Henry Assistant Solicitor General

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