ANTHONY MCDOWELL 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IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION” THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D).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 UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF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 IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.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RENDERED: OCTOBER 22, 2026 NOT TO BE PUBLISHED Supreme Court of Kentucky 2025-SC-0287-MR ANTHONY MCDOWELL APPELLANT V. ON APPEAL FROM WASHINGTON CIRCUIT COURT HONORABLE SAMUEL TODD SPALDING, JUDGE NO. 24-CR-00028 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING A Washington Circuit Court jury convicted Appellant Anthony Michael McDowell of first-degree rape and three counts of first-degree sexual abuse. The jury recommended a sentence of 35 years, which the trial court imposed. McDowell now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Following a careful review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On June 12, 2022, seventeen-year-old S.G. spent the night at the home of her ex-boyfriend Kyle, with whom she had a child.1 Appellant McDowell, who is Kyle’s step-grandfather, also lived in the home, along with his wife Kathy and his father. S.G. would occasionally stay at the home, sleeping on 1 We use initials here to protect the privacy of the minor victim.

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2 the couch when she did so. She would also do chores around the house when asked. S.G. testified that she viewed McDowell as her son’s grandfather, and that she trusted him in that role because she did not have her own dad. On the night in question, Kyle left for work and S.G. got herself and her son ready to go to sleep. As she was lying on the couch, McDowell approached S.G. and asked her if she and Kyle were still together. He then asked S.G. how much he could pay her to give her oral sex. S.G. froze and put her blanket over her head. McDowell left, then came back and told her to forget it and not to tell anyone. McDowell again left, then returned. This time, McDowell told S.G. that she was beautiful and that his wife would not have sex with him. He then licked the inside of S.G.’s ear, rubbed her breast, and moved his hand down and touched her vagina. S.G. pushed McDowell away, and he left. S.G. testified that McDowell then returned again, and again began touching her. He left again, and S.G. dozed but was not fully asleep. McDowell again came back, and this time pulled down S.G.’s shorts and licked her vagina. He then stuck his finger into S.G.’s anus, after which he put his penis in her vagina. S.G. testified McDowell said, “this is what you wanted, right?” She told him to stop and tried to get up, but could not because McDowell was on top of her. After the assault, McDowell told S.G. not to tell Kyle because it would cause issues with his wife. S.G. then went into the bathroom and called Kyle.

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3 The following day, Kyle and his mother took S.G. to law enforcement to report the incident, where she was interviewed by Trooper Austin Mattingly. S.G. also underwent a Sexual Assault Nurse Examiner (“SANE”) exam. Testing results ultimately revealed that McDowell’s DNA was present in swabs taken from S.G.’s vagina and external genitalia area. S.G. also had tenderness on her forehead, abrasions on her lower back, right knee, and right calf, and redness in her vaginal area. McDowell’s home was equipped with security cameras. Law enforcement obtained the footage from McDowell voluntarily, which showed McDowell repeatedly approaching S.G. on the couch throughout the night of the incident. The footage also showed him reaching under the blanket, lifting it, and trying to get close to S.G.’s face when she would turn away. Notably, however, McDowell shut the cameras off shortly before the assault at issue occurred. McDowell asserted he unplugged the camera because it was not working correctly, stating that he “knows how it looks.” After obtaining the results from the SANE examination and testing, law enforcement interviewed McDowell. When he learned the test revealed the presence of his DNA, McDowell stated the results were wrong. However, after being questioned about consensual contact, McDowell stated he and S.G. may have done some sexual things. McDowell said he told S.G. to send him a thumbs-up message on Facebook if she wanted to have sex, that she did send him such a message, and he therefore initiated sexual contact with her. Law enforcement obtained search warrants for the Facebook accounts of S.G. and

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4 McDowell. The warrants revealed that S.G. had messaged a thumbs-up to McDowell approximately twenty minutes before the cameras were shut off and the incident occurred. McDowell replied “what?” to the message. S.G. testified that she accidentally sent the message during a panicked attempt to call her mother or Kyle for help. McDowell was charged with first-degree rape, three counts of first-degree sexual abuse, and one count of first-degree sodomy. The jury convicted McDowell on all charges except for sodomy, of which he was acquitted. The jury recommended a sentence of 35 years, which the trial court imposed. McDowell now appeals as a matter of right. ANALYSIS McDowell raises three issues for our review: (1) whether the admission of hearsay evidence regarding S.G’s statements to others about the assault warrants reversal; (2) whether one of McDowell’s sexual abuse convictions violated the prohibition against double jeopardy; and (3) whether two of McDowell’s sexual abuse convictions are invalid because McDowell was not a person in a position of authority or special trust. We review each issue in turn, providing additional facts as necessary. I. Testimony Regarding S.G.’s Statements To Others About The Assault Was Not Palpable Error. McDowell first argues reversible error occurred when hearsay evidence regarding S.G.’s statements to others about the assault was admitted at trial. More particularly, Trooper Mattingly testified that Kyle stated during his interview with law enforcement that S.G. told him McDowell had attempted to

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5 make her perform oral sex on him and had asked S.G. how much money it would take for him to be able to perform oral sex on her. McDowell’s wife Kathy also testified that S.G. told her shortly after the incident that McDowell had raped her. McDowell acknowledges this allegation of error is unpreserved, and therefore requests palpable error review. See Kentucky Rule of Criminal Procedure (“RCr”) 10.26. When determining whether an error is palpable and warrants reversal, we ask “‘whether on the whole case there is a substantial possibility that the result would have been any different.’ To be palpable, an error must be ‘easily perceptible, plain, obvious and readily noticeable.’ A palpable error must be so grave that, if uncorrected, it would seriously affect the fairness of the proceedings. ‘It should be so egregious that it jumps off the page . . . and cries out for relief.’” Even when an error is palpable, relief is warranted only where it results in manifest injustice. An error results in manifest injustice if it “so seriously affected the fairness, integrity, or public reputation of the proceeding as to be “shocking or jurisprudentially intolerable.” Williams v. Commonwealth, 706 S.W.3d 177, 184 (Ky. 2024) (quoting Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted). McDowell argues that the statements by Kyle and Kathy were inadmissible hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Kentucky Rule of Evidence (“KRE”) 801(c). The hearsay rule bars admission of such evidence unless it falls within a recognized exception. KRE 802.

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6 As we have previously noted, “[n]o general hearsay exception allows a friend, parental figure, guardian, police officer, or other law enforcement personnel to testify to the prior statements of a victim of sexual assault.” Stephens v. Commonwealth, 680 S.W.3d 887, 898 (Ky. 2023). Thus, we conclude—and the Commonwealth does not argue otherwise—that the evidence of what S.G. told Kyle and Kathy about the assault was inadmissible hearsay, and that the admission of that evidence was error.2 That said, because the error is unpreserved, it warrants reversal only if it is palpable. See RCr 10.26. McDowell argues that the error is palpable, pointing to a number of cases in which we have reversed convictions involving unpreserved errors in admitting the hearsay statements of a sexual assault victim. See Stephens, 680 S.W.3d at 906; Alford v. Commonwealth, 338 S.W.3d 240, 246-48 (Ky. 2011); Hoff v. Commonwealth, 394 S.W.3d 368, 379 (Ky. 2011); Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012). Notably, however, in each of those cases, there was no physical evidence directly supporting the Commonwealth’s claim of unlawful sexual contact between the defendant and the victim. Stephens, 680 S.W.3d at 892; Alford, 338 S.W.3d at 246; Hoff, 394 S.W.3d at 377; Chavies, 374 S.W.3d at 323. Under such circumstances, where guilt thus turns solely on the credibility of the victim’s allegations and the defendant’s denials, the admission of hearsay 2 KRE 801A(a)(2) allows prior hearsay statements by a victim regarding a sexual assault to be admitted where there is a claim that the victim’s allegation is a recent fabrication or the product of improper motive or purpose. Riggle v. Commonwealth, 686 S.W.3d 105, 114 (Ky. 2023). There is no indication—and the Commonwealth does not argue—that this exception applies here.

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7 statements by the victim is particularly prejudicial. Stephens, 680 S.W.3d at 906 (“In this case, the admission of this hearsay evidence was highly damaging to [defendant] because the only evidence in this case revolved around [the victim’s] account of the rape.”) (emphasis added); Alford, 338 S.W.3d at 246-247 (noting that in the absence of physical evidence, “[the victim’s] credibility was crucial to the Commonwealth’s case. The extensive hearsay . . . was highly prejudicial and served only to unfairly bolster [the victim’s] credibility.”); Hoff, 394 S.W.3d at 377-78; Chavies, 374 S.W.3d at 323. However, the present circumstances are distinguishable because the Commonwealth also presented physical evidence to support the charges, and thus guilt did not turn solely on the credibility of the witnesses. McDowell acknowledged sexual contact with S.G. but asserted the contact was consensual. Thus, the central issue for the jury to decide with respect to the first-degree rape charge was not whether the contact occurred, but rather whether it was consensual. See Kentucky Revised Statutes (“KRS”) 510.040(1)(a) (providing in relevant part that a person is guilty of first-degree rape when he engages in sexual intercourse with another person “by forcible compulsion”). And notably, the Commonwealth presented physical evidence that supports the jury’s conclusion that S.G. did not consent to sexual contact. More particularly, the video recordings from McDowell’s home security cameras were admitted. Those recordings depicted McDowell repeatedly approaching S.G. while she was lying on a couch trying to go to sleep. The recordings also depicted S.G. turning away from McDowell when he approached. They further

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8 depicted McDowell reaching his hand under S.G.’s blankets. And perhaps most significantly, the recordings depicted McDowell approaching the camera and turning it off shortly before the incident occurred. Taken together, these events depicted on the recordings were physical evidence from which a jury could—and indeed did—conclude that S.G. did not consent to the sexual contact. Quite simply, the recordings showed McDowell repeatedly pursuing and physically touching S.G. as she attempted to sleep, and S.G. turning away from those advances. Moreover, the recordings physically depicted McDowell turning the cameras off shortly before the incident at issue occurred. In light of this evidence, the jury could—and did— conclude that the sexual contact between McDowell and S.G. was the result of forcible compulsion rather than consent. Though it may be rare to have video recordings from which a jury may conclude sexual contact occurred without consent, this is one such case. And these recordings, constituting physical evidence supporting a finding of a lack of consent, also make this case markedly distinguishable from those relied upon by McDowell. As noted above, those cases involved the admission of hearsay statements under circumstances in which the victim’s allegations were the sole proof of criminal conduct. In contrast, the jury here also had the recordings which were strong physical evidence of S.G.’s lack of consent. And, while the test results revealing the presence of McDowell’s DNA do not relate directly to the issue of consent, they are nonetheless also additional physical evidence corroborating his admission that he had sexual contact with S.G.

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9 Thus, because the jury had such evidence, there was not a substantial possibility of a different result at trial had the hearsay statements at issue not been admitted. Quite simply, the video recordings alone were sufficient to establish that S.G. did not consent to the sexual contact at issue. For the same reason, we also cannot say that the error “so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Williams, 706 S.W.3d at 184 (citation omitted). Thus, while the admission of the hearsay statements was error, it was not palpable error warranting reversal. II. McDowell’s Conviction For First-Degree Sexual Assault Does Not Violate The Prohibition Against Double Jeopardy. McDowell next argues the prohibition against double jeopardy was violated when he was convicted of first-degree sexual abuse for touching S.G.’s vagina. More particularly, McDowell alleges this violated double jeopardy because he was also convicted of first-degree rape for having sexual intercourse with S.G., and of first-degree sexual abuse for licking S.G.’s vagina, each of which necessarily included touching S.G.’s vagina. McDowell acknowledges this error is unpreserved and therefore requests palpable error review. The Fifth Amendment of the U.S. Constitution and Section 13 of the Kentucky Constitution both prohibit placing a criminal defendant in double jeopardy for “the same offense.” Notably, however, we have previously held that a defendant’s conviction for multiple sexual acts that occur within the course of a single assault does not violate double jeopardy where each act was for the purpose of sexual gratification, and thus constitutes a “separate

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10 offense.” For example, in Hampton v. Commonwealth, the defendant was charged with one count of sodomy and one count of sexual abuse arising from an incident in which he performed fellatio on the victim while simultaneously also causing the victim to perform fellatio on him. 666 S.W.2d 737, 739 (Ky. 1984). The defendant argued this constituted a double jeopardy violation because the “sexual contact” required to prove the sexual abuse charge was also a necessary component of the sodomy charge. Id. We disagreed because “the separate charge of sexual abuse [was] based not on incidental contact, but a separate act of sexual gratification. The fact that the two sexual acts occurred either simultaneously or nearly so is irrelevant.” Id. (emphasis added). Similarly, in Banks v. Commonwealth we found no double jeopardy violation where the defendant was convicted of both sodomy and sexual abuse for rubbing and touching that occurred before the sodomy, all during the course of a single assault. 313 S.W.3d 567, 575-76 (Ky. 2010). The relevant inquiry is whether the separately charged acts that occurred within the single assault were each for the purpose of sexual gratification and thus were each a separate offense. Hampton, 666 S.W.2d at 739; Benet v. Commonwealth, 253 S.W.3d 528, 536 (Ky. 2008) (finding no double jeopardy violation for sexual abuse and sodomy convictions arising from a single assault because “[the defendant’s] touching of the victim’s genitals through the victim’s clothing [was] an entirely separate act and offense than his orally sodomizing the victim.”).

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11 Here, S.G. testified to three separate forms of sexual contact by McDowell: his touching of her vagina, his licking of her vagina, and sexual intercourse. There was nothing in her testimony, nor any other evidence, to suggest that these separate forms of contact were purely incidental rather than for the otherwise evident purpose of sexual gratification. To the contrary, S.G. testified that immediately before the assault began, McDowell told her his wife would not give him sex and then proceeded to lick the inside of her ear and to rub her breasts. She testified McDowell then moved his hand down and touched her vagina. S.G. testified McDowell then left, came back, pulled down her shorts, and licked her vagina. She further testified McDowell then grabbed her waist and put his penis in her vagina. It is evident from S.G.’s testimony that McDowell’s touching, licking, and penetration of S.G.’s vagina were separate acts during the course of a single assault, all of which were for the purpose of McDowell’s sexual gratification, and thus each constituted a separate offense. Hampton, 666 S.W.2d at 739; Benet, 253 S.W.3d at 536. We also note that the jury instructions differentiated the conduct by specifically identifying the particular act at issue in each charge, with the rape instruction requiring “sexual intercourse,” one of the sexual abuse instructions requiring “licking [S.G.’s] vagina,” and the other sexual abuse instruction requiring “touching [S.G.’s] vagina.” McDowell suggests that a double jeopardy violation occurred because the jury could have found the “touching” required for the sexual abuse conviction to be the same “touching” that was involved in the sexual penetration. We disagree.

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12 In Towe v. Commonwealth, the defendant was convicted under a sexual abuse instruction requiring a finding that he had the victim touch his penis, and under a sodomy instruction requiring a finding that he placed his penis in the victim’s mouth. 617 S.W.3d 355, 359 (Ky. 2021). We rejected the contention that this impermissibly raised a possibility the defendant had been convicted twice for the same conduct, because the sodomy instruction required greater specificity and thus sufficiently distinguished the acts at issue: It is true that under the sexual-abuse instruction, the jury could find that [the victim] touched [the defendant] with her mouth and use that same act to sustain a conviction for sexual abuse. But that same act could not be used under [the sodomy instruction] because the jury had to find that an even more specific act occurred, which required more than touching. A sexual-abuse instruction that explicitly described the body part used to touch the defendant could have made review of this issue clearer, but we are unwilling to say this lack of specificity resulted in [defendant] being convicted twice for the same conduct . . . . [T]he difference in the instructions here was enough for the jury to conclude that if the victim touched [defendant], in any way except for placing his penis into her mouth, he was guilty of sexual abuse. Id. at 361. The same is true here. While the sexual abuse instruction permitted a conviction if the jury found McDowell had “touched” S.G.’s vagina, the rape instruction was more specific in requiring proof that McDowell had had sexual intercourse with S.G. The second sexual abuse instruction was also more specific insofar as it required proof of “licking,” i.e. a touching with the tongue. As in Towe, and in light of S.G.’s specific testimony at trial regarding the three separate acts of sexual contact, the specificity of these instructions was sufficient for the jury to conclude that the touching at issue in

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13 the sexual abuse instruction differed from the sexual intercourse and licking at issue in the other two instructions. As such, we do not find that McDowell’s conviction for touching S.G.’s vagina violated the prohibition against double jeopardy. III. The Trial Court Did Not Err In Providing A Sexual Abuse Instruction Premised On A “Position Of Authority” Or “Position Of Special Trust” Theory Of Liability. Finally, McDowell argues two of his sexual abuse convictions must be reversed because he was not a person in a position of authority or special trust as required for those convictions. McDowell objected to the instructions allowing conviction on such grounds, and his argument is therefore preserved. RCr 9.54(2). We review preserved allegations that a trial court provided an unwarranted instruction for an abuse of discretion. Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). In deciding whether the trial court has erred in giving an instruction, we construe “the evidence favorably to the proponent of the instruction [and] ask whether the evidence would permit a reasonable juror to make the finding the instruction authorizes.” Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011). KRS 510.110(1)(d) provides in relevant part that a person is guilty of sexual abuse in the first degree when, [b]eing a person in a position of authority or position of special trust, as defined in KRS 532.045, he or she, regardless of his or her age, subjects a minor who is less than eighteen (18) years old, with whom he or she comes into contact as a result of that position, to sexual contact.

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14 KRS 532.045, in turn, provides that “‘[p]osition of authority’ means but is not limited to the position occupied by” a number of different roles, including in relevant part here a “household member.” KRS 532.045(1)(a) (emphasis added). As this statutory language makes plain, the list of roles constituting a “position of authority” is non-exclusive, and thus a person may occupy such a position even if they are not in one of the roles specifically set forth in the statute. The statute further defines a “position of special trust” as “a position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the minor.” KRS 532.045(1)(b). In construing the terms “position of authority” and “position of special trust,” we have looked to these statutory definitions as well as “the common sense understanding” of those terms. Dep’t for Cmty. Based Servs. v. Baker, 613 S.W.3d 1, 5-6 (Ky. 2020). We have also noted that the evident purpose of allowing a conviction for the sexual assault of a minor undertaken by a person in a position of authority or special trust is to address circumstances giving rise to “probable coercion arising out of the special relationship the perpetrator has with his victim, which necessarily disables the victim’s resistance.” Stinson v. Commonwealth, 396 S.W.3d 900, 905-06 (Ky. 2013). Indeed, “undue influence or coercion is inherent in the type of relationship defined by the statute.” Id. at 906. Thus, a person is in a “position of authority” or a “position of special trust” for purposes of KRS 510.110(1)(d) when he or she occupies one or more roles set forth in the statutory definitions of these terms,

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15 or when her or she otherwise occupies a position of authority or trust allowing for the exercise of undue influence or coercion over the minor victim. Here, there was sufficient evidence presented at trial from which a reasonable jury could conclude that McDowell occupied such a position vis-à- vis S.G. S.G. was the mother of McDowell’s step-grandson. She testified that she viewed McDowell as her son’s grandfather, that she respected him as an elder, and that she put her trust in him in an effort to cultivate a family relationship for her child. She also slept in McDowell’s home and did chores around the home. Thus, while S.G. may not have been related to McDowell by blood or marriage, she was, in all relevant considerations, the equivalent of a family member who occasionally also stayed in his home. Finally, as a teen mother trying to provide care and a family life for her child, S.G. was in a vulnerable position. McDowell was thus in a position to take advantage of that vulnerability both given his status as an adult householder in the home where S.G. occasionally stayed, and as a quasi-family member whom S.G. respected, trusted, and wished to play a familial role in her son’s life. These facts were sufficient to allow a reasonable jury to conclude—as the jury here did—that McDowell occupied a position of authority or special trust in which he could exercise undue influence or coercion over S.G. Thus, because the evidence could support such a finding by a reasonable jury, the trial court did not err in providing the instructions.

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16 CONCLUSION For the foregoing reasons, we affirm the judgment and sentence of the Washington Circuit Court. All sitting. All concur. Conley, J., also concurs by separate opinion which Thompson, J., joins. CONLEY, J., CONCURRING: I agree with the Court. I write only to add that the statements at issue were brief and were not so extensive or prejudicial as to merit reversal regardless of the other proof presented at trial supporting the charge. Commonwealth v. Mitchell, 165 S.W.3d 129, 134 (Ky. 2005) (hearsay statements not so persistent or prejudicial as to create a manifest injustice); Roach v. Commonwealth, 313 S.W.3d 101, 110 (Ky. 2010) (isolated hearsay statement was not palpable error). Thompson, J., joins. COUNSEL FOR APPELLANT: Steven J. Buck Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Kristin L. Conder Assistant Attorney General

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