Opinion
NO. 2016-CA-000324-MR
02-17-2017
MICHAEL ADAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kevin R. Croslin Bowling Green, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON CIRCUIT COURT
HON. RONNIE C. DORTCH, JUDGE
ACTION NO. 14-CR-00038 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Michael Adams appeals from the Edmonson Circuit Court's order and judgment finding him guilty of sexual abuse in the first degree and sentencing him to a term of five years, consistent with the jury's verdict. Discerning no error, we affirm.
Kentucky Revised Statutes (KRS) 510.110, a Class D felony.
In the early morning hours of May 1, 2014, twenty-year-old Michael Adams entered the bedroom of his fourteen-year-old female cousin. She awoke to find Adams' hand on her leg, under her shorts, but was too terrified to say or do anything. Adams proceeded to digitally penetrate her vagina for approximately one minute, leaving the room only after the victim's dog barked. The next day the victim informed her mother and was taken to the hospital where she described the incident to police.
The victim is the stepdaughter of the appellant's uncle.
On June 16, 2014, Adams was indicted on a single count of first-degree sexual abuse. Following a one-day trial, jurors convicted him. On February 23, 2016, the trial court entered final judgment, sentencing Adams to serve five years in accordance with the jury's recommendation. This appeal followed.
Adams presents only one issue on appeal—that the trial court improperly granted the Commonwealth's motion in limine, thereby preventing him from cross-examining the victim about her purported refusal to submit to a physical examination as requested by police. When determining whether a trial court has erroneously excluded evidence, the relevant inquiry is whether the ruling "was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
We will not reach the merit of Adams' claim because he did not comply with CR 76.12(4)(c)(v). That rule requires the brief for appellant to
Kentucky Rules of Civil Procedure.
contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review, and, if so, in what manner.The argument section of Adams' brief contains no statement of preservation; indeed, it does not cite the record at all. As an appellate court, we will not search the record to flesh out an argument for a party. We confine our review "to errors pointed out in the briefs." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).
Close inspection of the record reveals no court order granting the Commonwealth's motion to exclude the victim's supposed refusal to submit to a physical exam. The record shows the Commonwealth filed such a motion, but it was not received by the trial court until November 23, 2015—four days after Adams' trial had ended in conviction. Adams does not direct us to a trial court order granting the motion and the Commonwealth asserts the record is silent. Additionally, we discern no directive from the trial court forbidding the defense from exploring the absence of a physical exam of the victim, and the record reflects no attempt by Adams to cross-examine the victim on the topic—thus, there is no evidence of prejudice to the defense.
"[A] motion in limine resolved by order of record is sufficient to preserve error for appellate review." Lanham v. Commonwealth, 171 S.W.3d 14, 19-20 (Ky. 2005) (quoting KRE 103(d)) (emphasis added). Here, the record shows only an unresolved motion for which no one pressed for a ruling. An unresolved motion does not preserve a claim for our review. Id. As the record stands, we cannot determine whether the trial court saw and considered the Commonwealth's motion. We have no grounds on which to say the trial court granted the motion as Adams contends. "On appeal, a party may only present those issues that were fully presented to the trial court and, further, may not bring forward new legal grounds on appeal to challenge those errors." Henderson v. Commonwealth, 438 S.W.3d 335, 343 (Ky. 2014).
Kentucky Rules of Evidence. --------
Even if the trial court ruled on the motion in limine, absence of the order from the record requires the same denial of relief for Adams. "It is incumbent upon Appellant to present the Court with a complete record for review. When the record is incomplete, this Court must assume that the omitted record supports the trial court." Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008) (citations omitted). Based on the record presented to us, we assume the record supports the trial order and judgment and discern no error.
For the foregoing reasons, we affirm the Edmonson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kevin R. Croslin
Bowling Green, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky