RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0890-MR
ANGELO MAJORETA APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE MARY K. MOLLOY, JUDGE
ACTION NO. 23-CR-00645
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, ECKERLE, AND MOYNAHAN, JUDGES.
ECKERLE, JUDGE: Appellant, Angelo Majoreta (“Majoreta”), seeks reversal of
a judgment of the Kenton Circuit Court sentencing him to a total of ten years’
imprisonment after a jury found him guilty of two counts of rape in the third
degree. After careful review, we affirm.
I. Factual and Procedural History
Majoreta immigrated to the United States from the Democratic
Republic of the Congo. At some point thereafter he began communicating via
Instagram with “Regina” (the minor victim), who had immigrated to the United
States from Brazil but whose mother was from the Congo.1 Majoreta told Regina
that he knew her uncle, Manix. Majoreta was nearly 30; after initially telling him
she was much older, Regina eventually told Majoreta her true age—14. Majoreta
and Regina’s relationship became sexual, and Regina became pregnant.
After Regina revealed her pregnancy to Manix, he went to the
authorities. Kenton and Boone County law enforcement conducted a joint
investigation, as Majoreta lived in Kenton County and Regina lived in Boone
County. Regina was subjected to two interviews at a child advocacy center. In the
first one, she denied that Majoreta had inappropriate contact with her; but in the
second interview, she admitted that Majoreta had been sexually intimate with her.
Eventually, Regina underwent an abortion. DNA testing of the fetus showed a
99.9999% likelihood that Majoreta was the father.
A Kenton County grand jury indicted Majoreta for five counts of rape
in the third degree. As it pertains here, a person is guilty of rape in the third degree
1
We shall refer to the minor victim with a pseudonym pursuant to our Supreme Court’s practice and Kentucky Rule of Appellate Procedure (“RAP”) 5(B)(2).
-2-if he is at least 21 years of age and has sexual intercourse with a person less than
16 years old. See Kentucky Revised Statute (“KRS”) 510.050(1)(a). Majoreta
eventually entered an Alford2 plea to four counts of rape in the third degree in
Boone Circuit Court, for which he received a total sentence of five years’
imprisonment. While briefing in this appeal was ongoing, we affirmed the Boone
Circuit Court’s denial of Majoreta’s motion to withdraw his Alford plea. Majoreta
v. Commonwealth, No. 2024-CA-0448-MR, 2025 WL 3180585 (Ky. App. Nov.
14, 2025) (unpublished).
The Kenton Circuit Court charges against Majoreta proceeded to a
multi-day jury trial, which was held in April 2025. The guilt-phase witnesses
included law enforcement officers who had investigated the case, DNA analysts,
and Regina. We shall describe the crucial evidence presented in the guilt phase,
and the Commonwealth’s closing argument, in more detail infra in our discussion
of Majoreta’s claims for relief.
The jury found Majoreta guilty of two counts of rape in the third
degree but acquitted him of the remaining three counts. Majoreta and his sister
each testified in the subsequent penalty phase, which we will also describe infra,
2
Based on North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), an Alford plea is “[a] guilty plea that a defendant enters as part of a plea bargain without admitting guilt.” Alford Plea, Black’s Law Dictionary (12th ed. 2024). It is accorded the same treatment as a guilty plea.
-3-adding crucial portions of their testimony. The jury recommended that Majoreta
receive the maximum penalty—ten years’ imprisonment (five years on each count,
to be served consecutively). The Trial Court accepted the recommendation and
sentenced Majoreta in accordance with the jury’s verdict and suggested sentence,
after which he filed this appeal.
II. Analysis
Majoreta raises three main issues. First, he argues that the Trial Court
erred by limiting his cross-examination of Regina during the guilt phase. Second,
he opines that the Commonwealth twice committed prosecutorial misconduct
during its closing argument. Third, he contends that the Trial Court improperly
allowed the Commonwealth to question his sister and himself in the penalty phase.
Before we analyze those claims, we note that our analysis does not
always precisely track that utilized by the Trial Court or urged upon us by the
Commonwealth, but we may affirm the Trial Court on alternate grounds that are
supported by the record and applicable law. Mark D. Dean, P.S.C. v.
Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014). As a final
prefatory note, we have closely examined the parties’ briefs and have determined
that any arguments therein which we do not address in this detailed Opinion are
redundant, irrelevant, or otherwise without merit. Schell v. Young, 640 S.W.3d 24,
29 n.1 (Ky. App. 2021).
-4-A. Limitation on Cross-Examination of Regina
On direct examination during the guilt phase, the Commonwealth
asked Regina to explain the reasons that she had lied during her first interview.
Regina said that she had done so because she was trying to protect Majoreta, with
whom she was in love. The following exchange occurred soon thereafter:
Q. And did you tell them in that first interview, did you
tell them that you had sex with someone else?
A. Yes.
Q. And did you tell them you were pregnant in the first
interview?
A. Yes.
Q. Ok. And did you tell them about Angelo [Majoreta]
at all?
A. I did, but I was lying.
Q. Oh, well, that first interview, did you tell them about
Angelo?
A. Yes.
Q. And how . . . I’m confused now. If you told them
about Angelo in the first interview, how were you lying?
A. I don’t really remember what I said.
Video Record (“VR”) 4/23/25, 11:46:40.
On cross-examination, Majoreta asked Regina if she had said during
the first interview that she had a relationship with someone else, and Regina
-5-answered in the affirmative. Majoreta’s counsel then asked if Regina had
“disclosed to them whether that other person was an adult,” after which the
Commonwealth objected. Id. at 11:57:53 et seq.
At the ensuing bench conference, the Commonwealth asserted that
Majoreta’s questions were barred by Kentucky Rule of Evidence (“KRE”) 412,
commonly known as Kentucky’s rape-shield law. Majoreta claimed that the
Commonwealth had opened the door to questions about Regina’s sexual history;
and the Commonwealth countered that the opening-the-door principle cannot
overcome the exclusionary nature of KRE 412. The Trial Court sustained the
Commonwealth’s objection.
When the trial resumed after a lunch break, the Trial Court addressed
a note that had been written by a juror asking if the jury was supposed to disregard
the possibility that Regina had a sexual relationship with someone besides
Majoreta. The Trial Court gave a detailed oral response in which it specifically
cited KRE 412 for the principle that evidence about a victim’s sexual history is
generally inadmissible except for limited exceptions which were not present. VR
4/23/25, 2:13:38. The question before us now is essentially the same one that was
presented to the Trial Court.
1. KRE 412 and Our Standard of Review
KRE 412 provides in relevant part:
-6-(a) Evidence generally inadmissible. The following
evidence is not admissible in any civil or criminal
proceeding involving alleged sexual misconduct except
as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged
victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s
sexual predisposition.
(b) Exceptions:
(1) In a criminal case, the following evidence is
admissible, if otherwise admissible under these
rules:
(A) evidence of specific instances of sexual
behavior by the alleged victim offered to
prove that a person other than the accused
was the source of semen, injury, or other
physical evidence;
(B) evidence of specific instances of sexual
behavior by the alleged victim with respect
to the person accused of the sexual
misconduct offered by the accused to prove
consent or by the prosecution; and
(C) any other evidence directly pertaining to
the offense charged.
Our Supreme Court has held that KRE 412 is “primarily an
exclusionary evidentiary rule” whose exceptions should be used “sparingly and
carefully.” Powers v. Commonwealth, 626 S.W.3d 563, 566 (Ky. 2021) (internal
quotation marks and citations omitted). The rule’s purpose is to protect the victims
-7-of sex crimes “from painful and embarrassing questions and disclosures about their
private sexual activities” by excluding “irrelevant attacks on the victim’s character
. . . .” Id. (block quote format and citation omitted). We review a Trial Court’s
evidentiary decisions pursuant to the deferential, abuse-of-discretion standard. Id.
2. The Exceptions in KRE 412(b)(1)
Before we examine the relationship between the opening-the-door
principle and evidence excluded by KRE 412, we must ensure that the evidence at
issue was inadmissible under KRE 412. At the outset, we discount the obvious by
first noting that Majoreta could not claim consent, which is not a valid defense to
rape in the third degree because a person under the age of 16 lacks the legal
capacity to consent to sexual intercourse. See KRS 510.020(3)(a). Second, the
exception for attempting to show that another person was the source of the semen
or injury was inapplicable here, as there is neither an indication that Regina was
physically injured nor a dispute about the source of any semen. And the DNA
results overwhelmingly showed Majoreta to have been the father of the aborted
child.3
3
Majoreta tersely states in his opening brief that allowing him to elicit testimony from Regina regarding another sexual partner would have “provided an alternate father to the aborted fetus . . . .” Appellant’s Opening Brief, p. 14. But Majoreta does not provide any citation to the record claiming that he had informed the Trial Court that he had wanted to question Regina about her sexual history to raise an “alternate father” argument. In fact, Majoreta’s counsel admitted in closing argument that testimony about the DNA test results showed that Majoreta was the father. VR 4/24/25, 9:27:30 et seq. Majoreta’s fatal, proffered conclusion of an alternate father on appeal thus facially violates Kentucky’s “long-standing prohibition against
-8-Third, the line of questions Majoreta sought to pursue did not pertain
directly to the charged offenses. The residual exception in KRE 412(b)(1)(C) for
“evidence directly pertaining to the offense charged” only applies in “an
exceptional or unforeseeable case which justifies an exception to the general rule
of exclusion.” Ward v. Commonwealth, 568 S.W.3d 824, 831 (Ky. 2019) (internal
quotation marks and citation omitted). Majoreta does not explicitly argue that this
exception is applicable, and, in any event, this case is not so extraordinary as to fall
within the exception’s narrow bounds. Thus, we conclude that the evidence
Majoreta sought to elicit was inadmissible under KRE 412’s listed exceptions.
3. Curative Admissions
Nonetheless, Majoreta argues the evidence that he sought from Regina
was admissible under the opening-the-door principle. That principle, also known
as the rule of curative admissions, allows evidence that would otherwise be
rendered inadmissible in certain circumstances. Under this standard, “when a
witness makes an inadmissible assertion, the opposing party is then permitted to
introduce evidence to the contrary that would otherwise be inadmissible.” Leach v.
Commonwealth, 571 S.W.3d 550, 560 (Ky. 2019).
presenting a new theory of error at the appellate level—the overwrought but irresistibly descriptive prohibition against feeding a different can of worms” to an Appellate Court than was presented to the Trial Court. Henderson v. Commonwealth, 438 S.W.3d 335, 343 (Ky. 2014).
-9-The parties have not cited, and we did not independently locate,
published, Kentucky authority containing a detailed analysis of the relationship
between curative admissions and KRE 412. However, our Supreme Court has,
albeit succinctly and in dicta, held that the rule regarding curative admissions does
not allow the admission of evidence otherwise barred by KRE 412.
In Ward, the Commonwealth had presented evidence about the
victim’s age at the time of the alleged sodomy; Ward sought to use the openingthe-door principle to introduce evidence that the victim had been a prostitute.
Ward, 568 S.W.3d at 833-34. Our Supreme Court rejected Ward’s attempt for two
reasons.
First, the Court held that no curative admission was applicable
because the age of the victim in Ward was “properly admissible evidence . . . .” Id.
at 835. Similarly, in the case sub judice, Majoreta neither robustly focuses upon
nor explains the manner by which any testimony elicited by the Commonwealth
regarding Regina’s having lied to the child advocacy center was inadmissible.
Regardless, we need not reach a definitive conclusion on that initial,
inadmissibility question because the opening-the-door rule is inapplicable under
subsequent language in Ward.
Turning to the second reason for holding that the opening-the-door
rule was inapplicable in Ward, the Supreme Court flatly stated that “even if it were
-10-not admissible, the admission of her statement regarding prostitution would
sacrifice [the] important value reflected in KRE 412.” Id. (brackets in Ward)
(internal quotation marks omitted). Unfortunately, our Supreme Court has not
subsequently explained in detail its language in Ward that applying the openingthe-door rule to allow introduction of evidence that KRE 412 otherwise excludes
would impermissibly sacrifice bedrock juridical scruples. Nonetheless, Ward’s
conclusion is directly on point and controlling here.
The “important value” language in Ward was facially dicta. After all,
our highest Court had already held that the opening-the-door rule was inapplicable
on other grounds. The Court typically would have ended its analysis at that point.
Yet our Supreme Court chose to expound, adding language regarding effect, i.e.,
that applying the opening-the-door rule to allow evidence otherwise barred by
KRE 412 would sacrifice fundamental jurisprudential values. We will not ignore
that language, even if it is fleeting, obiter dictum because “[d]icta may be
persuasive or entitled to respect according to its reasoning and applicability and
where it was intended to lay down a controlling principle.” Dunn v. Solomon
Foundation, 723 S.W.3d 711, 730 n.29 (Ky. 2025) (internal quotation marks and
citation omitted).
Here, our Supreme Court must have intended to illuminate the bench
and bar about the viability of the opening-the-door rule vis-à-vis KRE 412 because
-11-it added strictly unnecessary language to Ward to address that topic. We construe
the language in Ward holding that allowing evidence otherwise barred by KRE 412
to be admitted under the curative admissions doctrine would sacrifice KRE 412’s
important values to mean that the curative admissions doctrine cannot overcome
the principles embodied in KRE 412. That very evidentiary rule was enacted for
the higher and noble purposes fundamental to notions of humanity and privacy,
protecting sexual assault victims from reliving trauma and shielding them from the
unnecessary embarrassment and intrusion of publicizing irrelevant past details of
their personal lives. Consequently, we must reject Majoreta’s argument that the
Commonwealth opened the door to allowing him to ask questions of Regina which
were barred under KRE 412.4
4. Right to Present a Complete Defense
Majoreta also argues that preventing him from pursuing questions
about Regina’s sexual history with another person violated his right to confront
witnesses against him or present a complete defense. Of course, as Professor
Lawson notes in his esteemed treatise on Kentucky evidence, “[l]ike all evidence
4
But see, e.g., 75 C.J.S. Rape § 66 (Apr. 2026 update) (“The concept of ‘opening the door’ may provide a proper basis for asserting an offer of proof and overcoming the presumption of irrelevance of victim’s prior sexual conduct created by rape shield statute.”); 29 Am. Jur. 2d Evidence § 505 (May 2026 update) (noting that, under the federal equivalent of KRE 412, a defendant’s constitutional right to confront his or her accusers may allow him or her to inquire about the alleged victim’s prior sexual conduct “where the government first opens the door on this line of cross-examination”).
-12-rules, rape shield laws like KRE 412 must be used without offending the
constitutional rights of criminal defendants . . . .” Robert G. Lawson, The
Kentucky Evidence Law Handbook § 2.35[6][c] (2025 ed.).
However, Regina’s sexual history had no bearing on the charges
against Majoreta since any prior sexual activity by Regina with another person
would not have been relevant to Majoreta’s sexual crimes with her when she was
14 years of age on or about the dates listed in the indictment. A defendant’s
constitutional rights may not impinge upon those of others without limitations.
Declining to allow a defendant to present irrelevant evidence whose only impact
would be to embarrass a victim—especially a minor victim—on collateral matters
does not violate a defendant’s constitutional rights. Powers, 626 S.W.3d at 568
(“KRE 412 constitutes a proper application of the principle that, in limited and
specific situations, the right of a criminal defendant to confront and cross-examine
witnesses must yield to other legitimate state interests. In sexual assault cases, the
Commonwealth’s interest is in protecting the privacy of sexual assault victims.”)
(internal parenthetical quotation marks and citation omitted); Ward, 568 S.W.3d at
833 (“Even if S.R. had been a prostitute in the past, Ward’s sodomy charge was
based on his use of forcible compulsion by means of a handgun to threaten S.R.
into performing oral sex; her prior conduct was irrelevant to whether she consented
to perform oral sex at gunpoint on the night in question. Employing the language
-13-of KRE 412(b)(1)(C), S.R.’s past prostitution did not ‘directly’ pertain to the crime
charged and indeed was irrelevant.”) (citations omitted); Howard v.
Commonwealth, 318 S.W.3d 607, 614 (Ky. App. 2010) (“KRE 412 was enacted to
protect the interests of a victim from the admission of evidence that is neither
material nor relevant to the crime charged.”); Montgomery v. Commonwealth, 320
S.W.3d 28, 39 (Ky. 2010) (holding that KRE 412 “is meant both to shield the
victims of sex crimes from painful and embarrassing questions and disclosures
about their private sexual activities as well as to preserve the fairness of the
proceedings by excluding irrelevant attacks on the victim’s character and guarding
against distracting the jury with collateral matters”).
Here, Regina admitted on direct examination that she had lied during
her first interview at the child advocacy center. Majoreta could have explored
Regina’s credibility and veracity without delving into her sexual history. Powers,
626 S.W.3d at 568 (“Here, the trial court permitted Powers to extensively crossexamine Sarah to develop his defense and attack her credibility. The only topic the
trial court prohibited inquiry into was the single consensual sexual act with another
man. Exclusion of this topic was not arbitrary and was plainly within the bounds
of the purpose of KRE 412. Powers had sufficient opportunities to develop his
various theories of defense and his right to do so was not improperly abridged by
the trial court’s ruling. There was no constitutional violation and Powers’ assertion
-14-to the contrary is without merit.”). In sum, we discern no abuse of discretion by
the Trial Court in its decision to forbid Majoreta to question the young Regina
about her sexual history.
B. Prosecutorial Misconduct
In addition to his claims about the limitation of cross-examination of
the victim, Majoreta also contends that the Commonwealth committed
prosecutorial misconduct twice in its closing argument. “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, which includes
making improper comments during closing arguments.” Brown v. Commonwealth,
553 S.W.3d 826, 837 (Ky. 2018) (internal quotation marks, footnotes, and citations
omitted).
1. Standard of Review
The Commonwealth urges us to use the standards governing
unpreserved claims of prosecutorial misconduct, under which we would provide
relief only for “flagrant” misconduct which “render[ed] the trial fundamentally
unfair.” Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017) (internal
quotation marks and citations omitted). However, Majoreta’s counsel objected to
both statements at issue. When, as here, “the [alleged] misconduct is objected to,
we will reverse on that ground if proof of the defendant’s guilt was not such as to
-15-render the misconduct harmless, and if the trial court failed to cure the misconduct
with a sufficient admonition to the jury.” Id. (internal quotation marks and
citations omitted).
In making that determination, we must “view that allegation [of
prosecutorial misconduct] in the context of the overall fairness of the trial” because
“[t]o justify reversal, the Commonwealth’s misconduct must be so serious as to
render the entire trial fundamentally unfair.” Id. (internal quotation marks and
citations omitted). “[C]ounsel is granted wide latitude during closing argument”
and “may comment on the evidence and make all legitimate inferences that can be
reasonably drawn from it.” Robinson v. Commonwealth, 647 S.W.3d 136, 143
(Ky. 2022). In sum, “we will not reverse a conviction even for prosecutorial
misconduct if, in the whole context, the evidence of guilt is overwhelming,
rendering the error harmless.” Id. at 144.
2. Purportedly Dishonest Defense Strategy
Before we analyze the Commonwealth’s comment about a
purportedly dishonest representation by defense counsel, we must place the
comment in context by discussing that which preceded it. Regina testified that she
had sometimes skipped school, going instead to Majoreta’s apartment in Kenton
County, where the two engaged in sex. Regina had written her own school-excuse
notes for those days and forged her mother’s signature thereto.
-16-In her closing argument, Majoreta’s counsel highlighted that some of
those notes were undated, insinuating that the Commonwealth had not proven
beyond a reasonable doubt that Majoreta had had sex with Regina in Kenton
County on the dates alleged in the indictment. In response, the Commonwealth
asserted in its closing argument that there were five school-excuse notes to which
Regina had signed her mother’s name, one for each count of the indictment. Soon
thereafter, the Commonwealth stated that “yes, two of them [the school-excuse
notes] don’t have dates on them, but there’s dates here.” VR 4/24/25, 9:57:50.
Immediately thereafter, the Commonwealth made the comment which Majoreta
contends is prosecutorial misconduct: “When the defense tells you that there are
no dates, and those notes can’t be matched up to the indictment dates, that’s just
dishonest in the representation, to be sure.” Id. at 9:57:54. Majoreta objected.
The Trial Court sustained the objection but denied Majoreta’s request to admonish
the jury.
Majoreta asserts that the Commonwealth’s remark about a dishonest
representation was reversible, prosecutorial misconduct, especially because the
Trial Court refused to admonish the jury. Precedent does generally encourage a
Trial Court to admonish the jury upon request after sustaining an objection. See,
e.g., Commonwealth v. Tramble, 409 S.W.3d 333, 339 (Ky. 2013) (“Once it
became clear that an improper argument had been made, it was error for the trial
-17-court to deny the request for an admonition. Delegating the task of correcting the
mistake to the prosecutor was an unacceptable alternative. The judge is the neutral
and detached authority upon whom the jury must depend for crucial guidance and
instruction.”); Rankin v. Commonwealth, 265 S.W.3d 227, 235 (Ky. App. 2007)
(“As to the Commonwealth’s misstatement of fact, during a bench conference, the
trial court sustained Rankin’s objection to the Commonwealth’s factual assertion
that Muir’s caller ID established that Rankin had been the caller. However, the
trial court denied Rankin’s motion to admonish the jury but ordered the
Commonwealth to restate the facts without repeating the misrepresentation . . . .
After reviewing the facts, we conclude that the trial court erred by not giving an
admonition.”) (paragraph break omitted).
However, under longstanding, Kentucky precedent, the
Commonwealth may “comment in a reasonable manner on how counsel for the
defense conducts himself [or herself] during the course of the trial.” Johnson v.
Commonwealth, 302 S.W.2d 585, 587 (Ky. 1957). But the prosecution should not
be permitted to “vilify and abuse a defendant on trial, nor counsel representing him
[or her] . . . .” East v. Commonwealth, 249 Ky. 46, 60 S.W.2d 137, 139 (Ky.
1933).
Here, the Commonwealth’s remark that Majoreta’s counsel’s
representation to the jury about the school-excuse notes was dishonest does not
-18-align precisely with the evidence or reasonable inferences that could be drawn
from it. Two of the school-excuse notes were undated. The Commonwealth bore
the burden to show that Majoreta had sexual intercourse with Regina in Kenton
County on or about the dates in the indictment. Thus, defense counsel did nothing
improper by urging the jury to construe the undated notes as indicating that the
Commonwealth did not prove beyond a reasonable doubt that Majoreta was guilty
on at least some counts in the indictment. Indeed, that strategy appears to have
been successful because the jury only convicted Majoreta of two of the five counts
contained in the indictment. In short, Majoreta’s counsel was not facially
dishonest in her remarks to the jury regarding counsel’s interpretation of the
evidence.
Regardless, the comment at issue by the Commonwealth was not
impermissible. Our Supreme Court has held that an even more direct,
inflammatory accusation—that defense counsel was “pulling a ‘scam’”—was a
remark “well within the proper bounds of a closing argument . . . .” Slaughter v.
Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). The Court also found it
permissible for the Commonwealth to “comment as to the falsity of a defense
position.” Id.
A scam is “a fraudulent or deceptive act or operation[.]” Scam,
Merriam-Webster Online Dictionary, https://www.merriam-19-webster.com/dictionary/scam (last visited Aug. 4, 2026). Thus, in Slaughter, our
Supreme Court held that it was permissible for the Commonwealth to have directly
accused defense counsel of trying to defraud or deceive the jury. Here, the
Commonwealth’s statement characterizing the defense counsel’s interpretation of
the evidence as being dishonest is much less unambiguously derogatory and
accusatory. The statement at hand did not contain a direct, unmistakably vilifying
accusation that defense counsel was intentionally lying to the jury. Arguing that
the Commonwealth construed the evidence differently, and so defense counsel’s
theory was dishonest, was suboptimal phrasing. The Trial Court rightly sustained
the objection. However, implying dishonesty in defense counsel’s evaluation of
the evidence is not reversible prosecutorial misconduct if it is “well within the
proper bounds of a closing argument” for the Commonwealth to directly accuse
defense counsel of committing a patently fraudulent act by “pulling a ‘scam . . . .’”
Slaughter, 744 S.W.2d at 412. Moreover, the Commonwealth may opine that a
defense position is false, which we construe to be the general tenor underlying the
Commonwealth’s dishonesty remark.
Also, even if we were to conclude that the dishonesty remark was
improper, Majoreta would not be entitled to relief. The comment was fleeting as it
occupied only a few seconds of a multi-day trial. The overall evidence of
Majoreta’s guilt was strong (given Regina’s essentially unrebutted testimony that
-20-she had had sex with Majoreta at his apartment and the DNA results showing an
overwhelming probability that Majoreta was the father of the aborted child).
Therefore, any error arising from the Commonwealth’s remark would be harmless.
Robinson, 647 S.W.3d at 144. As the Commonwealth’s remark was permissible
under binding Kentucky precedent, the Trial Court’s refusal to admonish the jury
here does not entitle Majoreta to relief. However, we remind the Trial bench that
requested admonitions are preferred when objections are sustained. Tramble, 409
S.W.3d at 339.
3. Purportedly Defining Reasonable Doubt
The second, alleged, prosecutorial misconduct occurred roughly ten
minutes after the first purported instance when, after remarking that Majoreta had
conceded that he had had sex with Regina in Boone County but contested the
Kenton County charges, the Commonwealth stated: “And here’s why—99.9999%
that the defendant is guilty of rape. That’s what that [DNA] test means. So, they
can’t deny that he’s guilty. They can only deny that he’s guilty in Kenton
County.”5 VR 4/24/25, 10:09:37.
5
As the Commonwealth accurately notes in its brief, Majoreta’s insistence that the comment at issue began with “here’s the law” is incorrect. Our review shows that the comment began with “[a]nd here’s why.” Thus, we decline to address further Majoreta’s argument that the prejudice to him was amplified by the Commonwealth cloaking its argument as being an explanation of the applicable law.
-21-Majoreta’s counsel objected and insisted the Commonwealth had
improperly defined reasonable doubt to the jury. The Trial Court disagreed and
overruled the objection. On appeal, Majoreta repeats his argument. See, e.g.,
Cuzick v. Commonwealth, 276 S.W.3d 260, 267 (Ky. 2009) (noting the “wellsettled prohibition of defining reasonable doubt to all points in a trial’s
proceedings.”).
The DNA results showed that Majoreta was 99.9999% likely to be the
father of the aborted child, which in turn tends to prove that he had sex with
Regina. But that DNA evidence did not show that the sex occurred in Kenton
County on any of the dates listed in the indictment. The Commonwealth thus
ventured into extrapolating too much purported information from the DNA results,
damning though they certainly were. “[T]he Commonwealth must abide by the
limitations of its own proof and not make claims that its DNA evidence is more
probative than the expert’s testimony has shown it to be.” Duncan v.
Commonwealth, 322 S.W.3d 81, 93 (Ky. 2010).
However, while no party is permitted to define reasonable doubt, the
Commonwealth is permitted to emphasize the strength of the evidence presented
and to urge the jury to find a defendant guilty. Though the DNA evidence alone
does not show that Majoreta had intercourse with Regina in Kenton County on the
dates listed in the indictment, that evidence conclusively showed that Majoreta had
-22-engaged in sex with Regina. In closing argument, defense counsel even conceded
that Majoreta fathered the aborted child, thereby admitting that Majoreta had
sexual intercourse with Regina. And significantly, Regina’s testimony that she had
sex with Majoreta in his apartment in Kenton County multiple times was not
meaningfully rebutted.
In sum, we agree with the limited point that the Commonwealth’s
statement about the DNA test results did not mean that Majoreta was 99.9999%
guilty of the charges in the indictment. However, the statement appears to be a
merely hyperbolic emphasis of the general damning nature of the DNA test results
more than an impermissible attempt to define the meaning of reasonable doubt. In
any event, the fleeting remark did not render the trial as a whole fundamentally
unfair when we consider the entire trial, and we find the statement to be a harmless
error given the prodigious evidence of Majoreta’s guilt. Murphy, 509 S.W.3d at
49.
C. Penalty Phase Testimony
Majoreta’s final argument is that he is entitled to appellate relief
because the Trial Court allowed the Commonwealth to ask improper questions of
himself and his sister in the penalty phase. In Majoreta’s view, those improper
questions caused the jury to recommend that he receive the maximum sentence.
-23-1. Majoreta’s Sister
Majoreta asserts that the Commonwealth should not have been
permitted to ask his sister about text messages of which she had no personal
knowledge. We must relate the immediately preceding testimony to put those
questions in context.
Majoreta’s sister testified on direct examination in the penalty phase
that Majoreta was a good person and “couldn’t do something like this [the charged
crimes].” VR 4/24/25, 2:05:40. She also opined that Majoreta “doesn’t deserve to,
to be in prison.” Id. at 2:07:28.
On cross-examination, the Commonwealth’s first question was
whether it was correct that Majoreta had impregnated a 14-year-old girl;
Majoreta’s sister answered “of course, it is.” Id. at 2:09:43. Soon thereafter the
Commonwealth asked if Majoreta had told her that he was in a sexual relationship
with a 14-year-old child. Majoreta’s sister asserted in her response: “Angelo
[Majoreta] didn’t know that. The girl [Regina] told me that Angelo didn’t know
that she was 14 before [presumably referring to before their relationship became
sexual].” Id. at 2:10:54. The Commonwealth then asked if Majoreta had told her
about texts he had exchanged with Regina. The sister answered “no.” Id. at
2:11:07.
-24-The Commonwealth then asked the sister to read a text message
between Majoreta and Regina. Majoreta’s counsel objected, but the Trial Court
overruled the objection. The Commonwealth then directed Majoreta’s sister to
read aloud more text messages between Regina and Majoreta. Those messages
showed Regina had disclosed her age to Majoreta. The Commonwealth then
asked: “So, obviously he [Majoreta] did know in those messages that she [Regina]
was 14, correct?” Majoreta’s sister simply responded “correct.” Id. at 2:14:47.
Majoreta contends that questions to his sister about those texts were
improper because she had not testified about them on direct examination and had
no personal knowledge of them. Majoreta cites no precedent with similar facts to
support his brief argument.
“As a general rule, a competent witness may testify concerning
matters of which he has personal knowledge, including events he has personally
observed and perceived.” Ruiz v. Commonwealth, 471 S.W.3d 675, 683 (Ky.
2015). Indeed, “KRE 602 limits testimony to matters within the personal
knowledge of the witness . . . .” Boyd v. Commonwealth, 439 S.W.3d 126, 131
(Ky. 2014).
However, credibility is always an issue, and Majoreta placed his own
directly in issue by calling his sister to testify and asking her questions designed to
elicit her opinion of his good character. See KRS 532.055(2)(b) (permitting a
-25-defendant to present evidence in the penalty phase “in mitigation or in support of
leniency[.]”). We discern no abuse of discretion in the Trial Court’s conclusion
that the Commonwealth was entitled to rebut Majoreta’s sister’s testimony
regarding Majoreta’s supposedly good, moral character. We also do not find any
abuse of discretion in the Trial Court’s allowing the Commonwealth to present
evidence to Majoreta’s sister showing that she was mistaken as to the facts
supporting her opinion when she testified that Regina had not disclosed her age to
Majoreta.
Though not cited by the parties, KRE 405(b) expressly provides that
“[o]n cross-examination of a character witness, it is proper to inquire if the witness
has heard of or knows about relevant specific instances of conduct.” Under that
Rule, as one leading Kentucky treatise puts it, “[t]he prosecutor may also crossexamine the defense character witnesses so as to test their knowledge of the
defendant by asking whether the witness has heard of specific unsavory things
about the defendant that relate to the trait of his or her character that is in
question.” Leslie W. Abramson, 9 Ky. Prac. Crim. Prac. & Proc. § 27:132 (6th
ed. Nov. 2025 Update).
The Commonwealth’s questions to Majoreta’s sister ostensibly fall
within the scope of KRE 405. Moreover, they were responsive to testimony given
by Majoreta’s sister on direct examination. Therefore, we reject Majoreta’s
-26-argument that he is entitled to relief because the Commonwealth asked Majoreta’s
sister its own questions about these text messages.
As our Supreme Court has held, albeit in a distinguishable context,
“[t]he price a defendant must pay for attempting to prove his good name is to
throw open the entire subject which the law has kept closed for his benefit and to
make himself vulnerable where the law otherwise shields him.” Johnson v.
Commonwealth, 694 S.W.3d 232, 244 (Ky. 2023) (internal quotation marks and
citation omitted).
We also summarily reject Majoreta’s extraordinarily laconic
argument, which is less than one paragraph long and cites no supporting precedent,
that having Majoreta’s sister read aloud texts, which had already been introduced
into evidence in the guilt phase, resulted in the presentation of cumulative
evidence. See KRE 403 (providing that a Court may exclude “needless
presentation of cumulative evidence.”). “Such a terse, conclusory assertion wholly
unaccompanied by meaningfully developed argument or citation to authority is
insufficient to merit appellate relief.” Schell, 640 S.W.3d at 32. Moreover,
Majoreta has not cited a location in the record where he raised that specific issue in
the Trial Court, and therefore, the alleged error is unpreserved. We discern no
manifest injustice stemming from the Commonwealth’s asking Majoreta’s sister to
read aloud and briefly texts that had already been admitted into evidence in the
-27-guilt phase of the jury trial. See Kentucky Rule of Criminal Procedure (“RCr”)
10.26.
2. Majoreta Himself
Majoreta’s second argument about the penalty phase centers around
his claim that the Commonwealth should not have been allowed to cross-examine
him in a manner that required him to admit that he had engaged in sex with Regina.
We conclude that Majoreta has waived any potential error regarding those
questions.
On direct examination, Majoreta generally testified about his
employment history and his assistance to his family and others in the Congolese
community. He also discussed his similar charges in Boone County and his
immigration status. VR 04/24/25, 2:18:40 et seq. On cross-examination, Majoreta
was generally uncooperative and frequently gave nonresponsive, rambling answers
to the Commonwealth’s questions.
For example, the Commonwealth asked Majoreta if he had admitted
that he had raped Regina in Boone County since he had pleaded guilty in the
Boone Circuit Court; Majoreta nonresponsively began to discuss how rape was
hated in the Congo, and he encouraged the jurors to perform research on the Congo
when they got home. Id. at 2:31:25. The Trial Court directed Majoreta to answer
the Commonwealth’s questions. The Commonwealth then asked Majoreta how
-28-many times he had sex with Regina in Boone County; Majoreta responded that he
did not remember. Id. at 2:32:47
Soon thereafter, the Commonwealth asked Majoreta how many times
he had had sex with Regina in his apartment (in Kenton County). Id. at 2:33:38.
Majoreta again did not directly answer. He instead stated that if the
Commonwealth wanted to know “the true truth” then it needed to present the “real
report from the detectives” so he could tell “the whole story” because the
Commonwealth did not want the jury to know “the true story.” Id. at 2:33:49.
Majoreta’s counsel did not object to any of those questions. Instead, Majoreta’s
counsel only objected after the Commonwealth asked whether Regina had come to
Majoreta’s apartment each time she had skipped school.
We note here that it is difficult to understand every word spoken at
this ensuing bench conference (and others), especially those from the Trial Court.
But defense counsel plainly opined that the Commonwealth could ask Majoreta
about the two dates listed in the counts of the indictment for which he had been
found guilty but could not ask about the three dates listed in the counts of the
indictment for which Majoreta had been found not guilty.6 Thus, Majoreta
6
Defense counsel stated: “There’s [sic] two days that she [Regina] allegedly skipped school that were on the indictment, days that they did find [Majoreta] guilty for and I think you [the Commonwealth] can ask on those two dates but asking for every time that she skipped school she was at his [Majoreta’s] apartment was rejected by this jury when they came back not guilty on three of those dates.” Id. at 2:35:10 (emphasis added).
-29-explicitly waived any objection to the Commonwealth questioning him about
having sex with Regina related to the two counts of the indictment for which he
had been found guilty—which are, of course, the only counts which are before us
in this appeal.
When the Trial Court remarked at the bench conference that Majoreta
had not answered the Commonwealth’s question, defense counsel’s response also
included this statement: “I think the proper response would be to re-ask the
question and say answer the question, you cannot, you have to answer the question
first.” Id. at 2:36:22. Thus, counsel explicitly invited the Trial Court to direct
Majoreta to answer the question to which counsel had objected.
Almost immediately thereafter, defense counsel again asked the Trial
Court to direct Majoreta to answer the questions—the very inquiries that Majoreta
attacks on appeal: “he [Majoreta] needs to be told again, Judge, to just answer the
question. The question was how many times did you have sex with her [Regina]
in” at which point the Court interrupted to remark that “really, this has nothing to
do with sentencing, frankly. I think it has to do with the guilt phase of the trial,
which is done.” Id. at 2:36:37. But just afterwards, the Trial Court reversed course
and agreed with the Commonwealth’s assertion that the questions were relevant to
Majoreta’s character. Majoreta’s counsel did not seek, nor receive, a continuing
objection to questions regarding Majoreta’s sexual history with Regina.
-30-The Trial Court eventually instructed Majoreta to answer the
questions posed to him, thus complying with Majoreta’s counsel’s request and
implicitly overruling Majoreta’s objection. Majoreta did not subsequently object
to any of the following questions, which directly or indirectly relate to his sexual
history with Regina. The Commonwealth asked Majoreta how many times Regina
came to his apartment; Majoreta responded that she had visited him twice. Id. at
2:40:50. A few minutes later, the Commonwealth asked Majoreta if he had had
sex with Regina the two times that he admitted that she had gone to his apartment;
Majoreta began a nonresponsive digression about having spoken to his attorneys,
at which point the Trial Court directed him to answer the question. Id. at 2:43:28.
Eventually, Majoreta testified (twice) that he had had intercourse with Regina once
at his apartment. Id. at 2:44:10; 2:46:00. When asked again, Majoreta repeated
that he did not know how many times he had had sex with Regina in Boone
County. Id. at 2:46:40.
Majoreta later denied having raped Regina because they had been in a
relationship. Id. at 2:48:30. He also denied having known Regina was only 14
years old until after she became pregnant. Id. at 2:48:50. Majoreta eventually
admitted that he had pleaded guilty to four counts of third-degree rape in Boone
County, although he decried having been allegedly disrespected in Boone County
and purportedly not having been allowed to go to trial there. Id. at 2:51:07.
-31-Finally, the Commonwealth asked Majoreta to state reasons for his decision to
refuse to admit at the Kenton County trial that he knew Regina was less than 16
years old when he had admitted that very fact in Boone County by pleading guilty
there; Majoreta responded: “I don’t have an answer to give you.” Id. at 2:54:16.
Majoreta argues that the “apparent purpose” of asking him how many
times he had engaged in sex with Regina “was to get an irrelevant admission to
criminal offenses,” and the prejudicial impact of the questions “far outweighed”
their “scant probative value.” Appellant’s Opening Brief, p. 26. But there are two
defects in Majoreta’s argument. First, he allowed the Commonwealth to ask
numerous questions related to his sexual relationship with Regina without raising
any objections. Those questions occurred both before and after Majoreta objected
to the question about whether Regina had gone to his apartment each time that she
had skipped school. Majoreta has plainly not preserved any issues stemming from
questions to which he did not object.
Second, Majoreta criticizes the Trial Court for having directed him to
answer questions about his sexual history with Regina, but he has affirmatively
waived any potential error therein because his counsel at least twice urged the Trial
Court to direct him to answer the questions posed to him. “[A] party cannot ask a
trial court to do something and, when the court does it, complain on appeal that the
court erred.” Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014). We thus
-32-decline to address Majoreta’s argument that the Trial Court erred when it directed
him to answer the Commonwealth’s questions because his counsel encouraged the
Trial Court to take that very act. Moreover, Majoreta’s counsel conceded at the
bench conference that the Commonwealth could inquire as to the sexual incidences
underlying the two counts for which the jury had already found Majoreta guilty
which, again, are the only two counts of the indictment at issue in this appeal.
Even if we leniently reviewed the issue on the merits in this instance,
we would affirm. At best, Majoreta’s arguments are unpreserved for appellate
review under these facts. As our Supreme Court has explained:
an unpreserved error may be noticed on appeal only if the
error is palpable and affects the substantial rights of a
party, and even then relief is appropriate only upon a
determination that manifest injustice has resulted from
the error. An error is palpable, we have explained, only
if it is clear or plain under current law, and in general a
palpable error affects the substantial rights of a party only
if it is more likely than ordinary error to have affected the
judgment. An unpreserved error that is both palpable and
prejudicial still does not justify relief unless the
reviewing court further determines that it has resulted in
a manifest injustice, unless, in other words, the error so
seriously affected the fairness, integrity, or public
reputation of the proceeding as to be shocking or
jurisprudentially intolerable.
Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (internal quotation
marks and citations omitted).
-33-Majoreta has not shown that the questions that he now challenges
were so shocking or jurisprudentially intolerable as to constitute palpable errors.
He placed his character in evidence by presenting testimony of his sister and
himself regarding his purportedly good character, including his history of helping
his family and others in the Congolese community. The Commonwealth’s
questions about Majoreta’s criminal sexual history with Regina were related to
showing a less flattering viewpoint of his character.7 We strongly question
whether the questions were improper. However, even if we were to assume
arguendo that they were, Majoreta would still not be entitled to relief.
The fact that Majoreta received the maximum sentence does not
automatically entitle him to relief. Although the record cannot invade the sanctity
of the jury’s deliberations to show the reasons that they recommended that
Majoreta receive the maximum sentence, it is plain that they were not entirely
inflamed against him because they acquitted him of most of the charges against
him. Also, a review of the record reveals many other potential and reasonable
bases for the jury’s recommendation that do not involve any alleged improprieties
by the Commonwealth. For example, Majoreta refused to admit that his having
intercourse with Regina constituted rape under the law of Kentucky; he persistently
7
Majoreta has not cited to where he invoked his Fifth Amendment right against selfincrimination at trial. Accordingly, we decline to address whether the Commonwealth’s incriminating questions may have violated that right, had Majoreta invoked it.
-34-digressed and refused to answer questions posed to him; and he insisted, despite
copious evidence to the contrary, that he did not know Regina’s age. Also, we
reiterate that the damning evidence against Majoreta was strong. Moreover, rape
in the third degree is an offense that a jury is unlikely to take lightly. Finally, the
jury was made aware that Majoreta had been convicted of many counts of the same
offense in Boone County with the same victim but had received only a five-year
sentence.
III. Conclusion
For the foregoing reasons, the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher B. Thurman Russell Coleman
Robert C. Yang Attorney General of Kentucky Louisville, Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
-35-