THOMAS BUTLER V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0695-MR THOMAS BUTLER APPELLANT v. APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN LAPE, JUDGE ACTION NO. 24-CR-00440 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, EASTON, AND KAREM, JUDGES. KAREM, JUDGE: Thomas Butler (“Butler”) appeals from the Kenton Circuit Court’s judgment sentencing him to five (5) years in prison after a jury trial. Finding no error to compel reversal, we affirm.

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-2- FACTUAL AND PROCEDURAL BACKGROUND On March 9, 2024, Butler came to the home he shared with his girlfriend and discovered her in bed with Alec Puckett (“Puckett”). While Puckett was still asleep, Butler jumped on him and repeatedly punched him in the face. Puckett was able to get away from Butler, escape from the house, and contact the authorities. Butler was subsequently arrested and charged with second-degree assault. At trial, both Butler and his girlfriend, Elizabeth Tabor (“Tabor”) testified that Puckett was the aggressor and had punched Butler first. Butler also testified that Puckett had threatened his life on other occasions, and that Butler feared for his life when he came home and found Puckett there. Puckett testified that Butler was the aggressor. Puckett sustained a broken nose, two fractured orbital bones, and several lacerations on his face, one of which required stitches. He also sustained a serious eye injury. Puckett’s doctor, Dr. Hudak, testified that the facial trauma damaged the muscles in Puckett’s eye. Moreover, he had bleeding underneath the surface of his eye, and the fractured eye socket caused his eye to recede into his skull. Puckett’s eye injuries place him at high risk of “angle recession glaucoma,” which can cause loss of vision.

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-3- After a three-day jury trial in Kenton Circuit Court, Butler was convicted and sentenced to five (5) years in prison. This appeal followed. We will discuss further facts as they become relevant. ANALYSIS I. Did Officer Ulrich Invade the Jury’s Province? Butler first argues that one of the officers involved in the case, Officer Ulrich, inappropriately commented on Butler’s credibility, thereby invading the jury’s province. Butler argues that his counsel preserved this issue twice: when defense counsel stated that Officer Ulrich was “tell[ing] everybody how smart he is” and when defense counsel stated that Officer Ulrich had a “proclivity to put his own spin on this stuff.” As discussed by a panel of this Court, “[s]uch a general objection without specification is insufficient to preserve the error.” Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001) (citation omitted). Indeed, it was necessary for Butler to “make[] known to the court the action which [he] desire[d] the court to take or any objection to the action of the court[.]” Kentucky Rule of Criminal Procedure (“RCr”) 9.22. “[W]hile the form of the objection does not control, the fact that an issue was made known to the trial court is paramount[.]” Gasaway v. Commonwealth, 671 S.W.3d 298, 313 (Ky. 2023) (citation omitted).

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-4- Such an objection was not made in this instance. Butler’s counsel did not object to the specific testimony at issue, nor did Butler make a motion to strike any of Officer Ulrich’s testimony produced on cross-examination. Moreover, the statements that Butler claims preserved his argument on appeal were not made sufficiently close in time to the applicable testimony. Therefore, because Butler failed to adequately preserve this issue, we may only review his claims for palpable error. See RCr 10.26. Moving to the substance of Butler’s claims on appeal, Butler objects to the following testimony on direct examination: Commonwealth: So, when you are speaking with Mr. Butler, like we just saw, you guys are eye-to-eye the whole time? Ulrich: Me and Mr. Butler? Yeah, it’s well represented in the video. He’s basically sitting. Commonwealth: He’s regularly making eye-contact with you the whole time? Ulrich: He is. Commonwealth: When you asked him about who started the fight, did he make eye contact with you then? Ulrich: No, that was the only question that Mr. Butler broke eye contact and looked down avoiding looking me in the face. Additionally, during cross-examination, Butler’s attorney asked Officer Ulrich about his earlier eye contact comments:

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-5- Defense: Butler was very clear when you asked him who started the altercation, that it was Puckett that struck him first. Am I correct? Ulrich: No. Defense: That’s what your report says. Ulrich: As I testified to you on direct, that’s the only time that Mr. Butler failed to maintain eye-contact, looked down, and said it was Mr. Puckett that started throwing the first punch. Defense: Do you know if he had anything in his eye? Do you know whether he had some distraction? Do you know anything about that. Or is that just your observation, your personal observation? Ulrich: Do I know if he, Mr. Puckett, had anything in his eye? Defense: Not Mr. Puckett, Mr. Butler. You seem to attach some significance to that— Ulrich: Yes. Defense: —or you wouldn’t have told the jury. Did you ask him if “you have anything wrong with your eyes?” Ulrich: No, averting your eyes is— Defense: That’s not my question. My question is very simple; did you ask him that question? Yes or no. Ulrich: I’m trying to answer your question— Defense: You’re not trying to answer my question. You never want to answer anybody’s questions— The Court: That’s enough.

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-6- Commonwealth: Objection. The court convened a bench conference, at which the Commonwealth objected that defense counsel had remarked on Officer Ulrich’s credibility. The questioning then resumed: Defense: To rephrase my question, did you ask him if he had anything in his eye? Yes or no. Ulrich: No, I did not. Defense: Did you ask him if he had any problems looking you in your eye? Yes or no. Ulrich: Did I ask him, no, he was looking me in the eye for every other question. Defense: Did you ask him whether he had any difficulty looking you in the eye when you asked that question to him? Ulrich: No. Defense: Did you accuse him of being evasive at that time? Ulrich: That would not have been an appropriate tactic at that time. Defense: Did you accuse him of lying at that time? Ulrich: No. Defense: So you made no further investigation into that act other than you attached some significance to it? Correct?

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-7- Ulrich: Well, there is some significance to it. Defense: But I’m saying you did attach some significance to it. You did. Correct? Ulrich: I did attach significance to it. Absolutely. Defense: I’m not asking what. I’m asking if you did. Correct? Ulrich: Yeah, I did. And I’ve said that a couple of times now. On redirect, the Commonwealth questioned Officer Ulrich further: Commonwealth: So we heard, or I guess [defense counsel] asked you about attaching significance to Mr. Butler looking down when he said, when you asked who started the fight. What was the significance that you’re attaching to that? Ulrich: Yes, sir. So, naturally anyone who has interpersonal communication would recognize that if you’re speaking to someone and they’re looking you in the eye, and then there’s a trigger that causes them to avert their eyes, it’s a frequently associated sign of deception. Turning to the applicable case law, as discussed by the Kentucky Supreme Court: Pursuant to [Kentucky Rule of Evidence (“KRE”)] 701, a lay witness may provide opinion testimony only if their opinion is (1) based on their perception; (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact at issue; and (3) not based on scientific, technical, or specialized knowledge. More often than not this rule permits shorthand testimony regarding certain inferences the witness drew from

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-8- behavior they observed. As a result, Kentucky law permits witnesses to give opinion testimony regarding a person’s apparent intoxication; the apparent age of a person; and a person’s apparent mental or emotional state. The principle connecting each of these cases is that a witness may testify as to a conclusion they drew about a person’s behavior from their personal observation of certain facts. Further, “[t]he degree to which a witness may give an opinion, of course, is predicated in part upon whether and the extent to which the witness has sufficient life experiences that would permit making a judgment as to the matter involved.” Consequentially, law enforcement officers may provide lay opinion testimony as to their experience-based interpretations of certain facts which they personally observed. Pursuant to this rule, this Court has permitted law enforcement officers to testify as to their interpretation of drug-sniffing dog[’s] behavior; that a juice bottle appeared to be a homemade silencer; and that a suspect appeared intoxicated due to his performance on a field sobriety test. But when the subject matter of the officer’s opinion is either not based on personal knowledge or based on specialized knowledge, the trial court must first qualify the officer as an expert. One area in which neither lay nor expert testimony is appropriate is the veracity of a witness. Just as we prohibit the introduction of mechanical polygraphic evidence, we similarly restrict the ability of a witness to act as a human lie detector on the stand. As such, “neither expert nor lay witness may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury.” Carson v. Commonwealth, 621 S.W.3d 443, 446–47 (Ky. 2021) (footnotes omitted).

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-9- In this case, Officer Ulrich’s eye-contact testimony on direct examination was restricted to his fact-based observations regarding Butler’s body language. Indeed, when being re-questioned by the prosecution, Officer Ulrich stated that “anyone who has interpersonal communication would recognize that if you’re speaking to someone and they’re looking you in the eye, and then there’s a trigger that causes them to avert their eyes, it’s a frequently associated sign of deception.” This testimony falls under the Supreme Court’s description of “law enforcement officers . . . provid[ing] lay opinion testimony as to their experience- based interpretations of certain facts which they personally observed.” Id. at 447. Further, Butler’s reliance on Carson is misplaced, as the facts here are distinguishable from those in Carson. In Carson, the Commonwealth underscored the detective’s scientific expertise in “behavioral analysis” and “interrogation technique[s],” and detective testified regarding the specific interrogation techniques he utilized in his questioning of the defendant. Id. at 448–49. The Commonwealth further discussed with the detective the specific “‘clusters’ of non- verbal and verbal cues in [the defendant] that caused him to elevate the interview to an interrogation.” Id. at 449. The Commonwealth continually highlighted the detective’s testimony and used it to impugn the defendant’s credibility. Id. at 449– 50.

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-10- Here, Officer Ulrich stated, and the bodycam footage shown to the jury indicated, that his interview with Butler was fairly abbreviated and not an extensive examination, as was the case in Carson. Moreover, Officer Ulrich limited his eye-contact testimony to his own subjective observations regarding Butler’s behavior in failing to maintain eye contact with Officer Ulrich. Unlike in Carson, Officer Ulrich never stated that he believed Butler was lying to him, and he never claimed to be an expert in “interpersonal communication” or interrogation techniques. The significance of averting eyes when answering questions about responsibility is common knowledge as every parent who has caught a child after a taking from the cookie jar knows. There was no harm in the officer’s isolated comment about deception. The officer here did not “hold forth” at length as an expert as in the Carson case. Thus, Officer Ulrich’s testimony was proper under KRE 701 because it was “based on [his] perception” and was “not based on scientific, technical, or other specialized knowledge[.]” See KRE 701. Moreover, even if his testimony was improper, it was not palpably erroneous. In fact, our Supreme Court “has not yet found such a . . . violation to rise to [the level of] palpable error under RCr 10.26.” Barrett v. Commonwealth, 677 S.W.3d 326, 341 (Ky. 2023) (citation omitted). An error is palpable only if “a substantial possibility exists that the result would have been any different[.]”

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-11- Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App. 1986). Thus, we must analyze whether “the error substantially affects the rights of the defendant in a way so obvious and serious that [there is] manifest injustice.” Brafman v. Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020) (citation omitted). A palpable error “should be so egregious that it jumps off the page . . . and cries out for relief.” Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (quoting Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011) (Cunningham, J., concurring)). Such an error did not occur in this case. Officer Ulrich did not hold himself out as an expert in behavioral analysis, and we can see no evidence that the result of the trial would have been different without such testimony. II. Did the Circuit Court Err in Excluding Evidence of a January 22, 2025, Incident at Tabor’s House? Butler’s second alleged error relates to the court’s decision to exclude evidence concerning two events that occurred in the weeks prior to the trial. The first incident occurred on January 19, 2025. Puckett allegedly came to Tabor’s house in the middle of the night and knocked on her window. Tabor allowed Puckett to enter, and Puckett allegedly asked Tabor to testify that Butler threw the first punch. Puckett also allegedly asked to recommence their relationship and initiated physical contact with Tabor. The second incident occurred three (3) days later, on January 22, 2025. Puckett allegedly returned to Tabor’s house that evening. Tabor refrained

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-12- from speaking to Puckett and called the police. Police directed Tabor to request a restraining order, which she did. The circuit court ruled that the January 19 incident was relevant as to whether Puckett may have tried to convince Tabor to alter her testimony. However, the court determined that Puckett’s alleged attempts to rekindle their relationship or initiate physical contact with Tabor were not relevant. The court further determined that the entire January 22 incident was not relevant. Butler argues on appeal that the circuit court erred in excluding the evidence concerning the January 22 incident. “Rulings upon admissibility of evidence are within the discretion of the trial judge; such rulings should not be reversed on appeal in the absence of a clear abuse of discretion.” Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994). “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) (citations omitted). The circuit court’s exclusion of evidence concerning the January 22 incident was not erroneous. Under KRE 401, “‘[r]elevant evidence’ means 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.” Here, there was no allegation that Puckett

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-13- attempted to coerce Tabor to modify her testimony at the January 22 meeting. Indeed, the evidence indicates that Tabor and Puckett did not even speak that evening. Nothing about the January 22 incident made it more likely that Puckett asked Tabor to change her testimony. Thus, the court did not abuse its discretion in excluding that evidence. Moreover, any error in excluding the evidence was again harmless. “The test for harmlessness is whether the error substantially swayed the verdict.” Allen v. Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013) (citation omitted). “The inquiry is not simply whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (internal quotation marks and citation omitted). Here, it cannot be said that the alleged error had a “substantial influence” on the verdict. Id. The circuit court permitted Butler to present evidence to the jury that Puckett attempted to persuade Tabor to change her testimony on January 19, 2025. It cannot be said that permitting the introduction of the January 22 incident would have had a “substantial influence” on the result. Id.

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-14- III. Was the Commonwealth’s Impeachment of Tabor Improper? At trial, the Commonwealth initially asked Tabor which individual threw the first punch. Tabor testified that Puckett punched Butler first, and that Butler was attempting to defend himself. The Commonwealth endeavored to impeach Tabor’s testimony by asking about her initial interview with Officer Ulrich. Outside of the jury’s presence, the Commonwealth replayed for Tabor her initial conversation with Officer Ulrich, captured by his bodycam footage. Officer Ulrich asked Tabor: “Who started it?” Tabor responded: “Tom, well, Tom came, Alec wasn’t happy about it. Alec threw the first punch.” Once the jury returned, the Commonwealth attempted to impeach Tabor as follows: Commonwealth: [W]hen Specialist Ulrich asked you ‘who started it,’ who did you tell him initially started this? What did you say? Tabor: Was the first word out of my mouth Tom? Commonwealth: Was it? Tabor: It, uhm— Commonwealth: So, in response to his question, the first word was Tom? Correct? Tabor: Yes, followed by the rest of the sentence. Yes sir. Commonwealth: What was the rest of the sentence? Tabor: “Tom came, Alec wasn’t any too happy about it.”

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-15- Commonwealth: But again, the first word out of your mouth was “Tom?” Tabor: Correct. Butler claims that this impeachment was improper because even though the first word out of Tabor’s mouth was “Tom,” she was “obviously” telling Officer Ulrich that “Tom came home” and was not in response to the question of who had punched first. As previously discussed, to properly preserve an issue for appeal, a party must “make[] known to the court the action which that party desires the court to take or any objection to the action of the court[.]” RCr 9.22. While defense counsel interjected that he believed the question was not fully answered, he did not request that the court take any action or note his objection. Therefore, this issue is unpreserved, and we review for palpable error. Even if the trial court erred by allowing the Commonwealth’s impeachment here, the error was not palpable. The jury heard Tabor’s full statement immediately after the Commonwealth impeached her and when it watched Officer Ulrich’s bodycam footage. Additionally, both Butler and Tabor testified that Puckett had punched first. Therefore, the jury heard the full version of what Butler and Tabor alleged happened on the day of the incident. There is no “substantial possibility . . . that the result would have been any different” had the

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-16- Commonwealth not impeached Tabor. Anderson, 706 S.W.3d at 779–80 (citation omitted). IV. Did the Court Err When it Declined to Admit the Entirety of Officer Craymer’s Bodycam Footage? Next, Butler argues that the circuit court committed reversible error by declining to admit the entirety of Officer Craymer’s bodycam footage. Officer Craymer testified that he went to Tabor’s home three (3) times the morning after the incident. During Officer Craymer’s direct examination, the Commonwealth played approximately nine minutes of his bodycam footage for the jury wherein Officer Craymer was questioning Tabor at her house after Butler had been arrested. During cross-examination, defense counsel asked the Commonwealth to play the full bodycam footage of all three (3) of Officer Craymer’s visits to Tabor’s house. At a bench conference, the Commonwealth stated that it did not have all two-and-a-half hours of the bodycam footage on its computer and would not be able to do so. While defense counsel stated that he did have the bodycam footage, he did not have the ability to play the footage. The court ruled that it was not the Commonwealth’s responsibility to provide the defense’s evidence and admonished the jury to that effect. Butler argues that the circuit court’s failure to present the entire bodycam footage evidence violated KRE 106. KRE 106 states that “[w]hen a

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-17- writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” “A trial court’s ruling under KRE 106 (i.e., the ‘rule of completeness’) is discretionary.” Schrimsher v. Commonwealth, 190 S.W.3d 318, 330 (Ky. 2006) (citations omitted). “The objective of that doctrine is to prevent a misleading impression as a result of an incomplete reproduction of a statement or document.” Commonwealth v. Collins, 933 S.W.2d 811, 814 (Ky. 1996) (internal quotation marks and citation omitted). “The issue is whether the meaning of the included portion is altered by the excluded portion.” Schrimsher, 190 S.W.3d at 331 (internal quotation marks and citations omitted). Here, the unplayed portion of the body cam footage did not change the meaning of the portion played to the jury. Butler merely argues that the unplayed portion would have shown him being cooperative with law enforcement, not that the meaning of the bodycam footage was altered by omitting the remaining footage. Therefore, we can discern no abuse of discretion. And while Butler is correct that criminal defendants must be given a meaningful opportunity to present a comprehensive defense, Butler had the

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-18- opportunity to present the remaining bodycam footage but chose not to do so. Thus, his right to present a defense was not hindered. V. Did the Court Err in Excluding Butler from the Courtroom During the Replaying of Dr. Hudak’s Testimony? During deliberations, the jury asked the court to replay testimony from Puckett’s treating physician, Dr. Hudak. There is no record of the parties receiving notice of this request, or of the parties’ discussion of this matter with the circuit court. However, there is a video record of the jurors listening to Dr. Hudak’s testimony. In McAtee v. Commonwealth, the Kentucky Supreme Court held that the court violated RCr 9.74 when it allowed the jury to rehear the witness’s statement outside open court, and outside the defendant’s presence. 413 S.W.3d 608, 625-26 (Ky. 2013). However, the Supreme Court found that the procedural error was harmless. Id. at 626-28. With respect to reviewing evidence outside the defendant’s presence, the court concluded that “[h]ad proper procedure been followed, the jury would have been permitted to re-watch the videotape in its entirety, in open court.” Id. at 628. The court did “not believe that the error that occurred—that is, permitting the jury to re-watch the video privately— substantially swayed their verdict.” Id.

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-19- The court’s reasoning in McAtee applies here. Had proper procedure been followed, the jury would have been provided with the opportunity to rehear Dr. Hudak’s testimony in open court and in Butler’s presence. Had that happened, the Court “can say with fair assurance that [the jury] would have come to the same verdict had it re-watched the video in open court.” Id. In this case, the jury had no contact with a witness outside of Butler’s presence. Rather, the jury privately reheard testimony without Butler being present. As the Court did in McAtee, we find this error to be harmless. VI. Was There Cumulative Error? Finally, Butler seeks to reverse his conviction under the cumulative error doctrine, which states that “multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The cumulative error doctrine is applicable “only where the individual errors were themselves substantial, bordering, at least, on the prejudicial.” Id. (citation omitted). In this case, we have found that any errors in this case did not substantially prejudice Butler’s rights. In cases where “none of the errors individually raised any real question of prejudice, [our Supreme Court has] declined to hold that the absence of prejudice plus the absence of prejudice

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-20- somehow adds up to prejudice.” Id. (citation omitted). Thus, we affirm as to this issue. CONCLUSION For the foregoing reasons, we affirm the Kenton Circuit Court’s judgment. ALL CONCUR. BRIEFS FOR APPELLANT: Paul J. Dickman Covington, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Erik Farleigh Assistant Solicitor General Frankfort, Kentucky

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