Sweet v. Commonwealth

• Court: Supreme Court of Kentucky
• Writing for the Court: KELLER, JUSTICE
• Docket Number: 2024-SC-0002-MR
• Decision Date: 23 October 2025
• Citation: Sweet v. Commonwealth, 2024-SC-0002-MR (Ky. Oct 23, 2025)
• Parties: GARY SWEET APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• topic: Civil Rights,Family Law,Criminal Law,Civil Procedure

1

GARY SWEET APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2024-SC-0002-MR

Supreme Court of Kentucky

October 23, 2025

ON APPEAL FROM WAYNE CIRCUIT COURT HONORABLE SARA B. GREGORY JUDGE NO. 19-CR-00158-001

COUNSEL FOR APPELLANT: Katherine Kallaher Schmidt Erin Hoffman Yang Assistant Public Advocates

COUNSEL FOR APPELLEE: Russell M. Coleman Kentucky Attorney General, Jenny Lynn Sanders Assistant Attorney General

OPINION

KELLER, JUSTICE

Following a two-day trial, a Wayne County jury convicted Gary Sweet of first-degree rape, Class B incest, and being a first-degree persistent felony offender. He was sentenced to a total of thirty years in prison. Sweet now appeals as a matter of right. See KY. CONST. § 110(2)(b). Having reviewed the record, the arguments of the parties, and the applicable law, we affirm the Wayne Circuit Court.

I. BACKGROUND

The following facts were uncontested at trial. Shortly after Sweet's marriage to Wilma^[1] in April 2018, Sweet moved in with Wilma and her eighteen-year-old daughter, K.W.,^[2] in Monticello, Kentucky. Sweet's marriage to Wilma made K.W. Sweet's stepdaughter. K.W., who was intellectually disabled, functioned mentally, socially, and adaptively at the level of an eight-to-ten-year-old child. K.W. was prone to people-pleasing and manipulation.

Testimony at trial established that K.W. and Sweet had engaged in sexual intercourse approximately four times between April 2018 and May 8, 2019. The circumstances giving rise to this intercourse were disputed, particularly due to Wilma having recited two different version of events to police and yet another at trial. It is clear in all three versions told by Wilma that her relationship with Sweet was tumultuous. On May 8, 2019, Wilma's sister, Sarah, called the police following a domestic dispute between Wilma and Sweet which had prompted Wilma to disclose to Sarah allegations that Sweet had raped K.W. When police arrived, Wilma told an officer with the Monticello Police Department that Sweet had raped K.W. at least four times within the past three months. K.W. confirmed to police that this had happened. K.W. was taken to the hospital and evaluated, and Wilma obtained an emergency protective order for K.W. against Sweet.

Around this time, Sweet went to stay in Tennessee, where Wilma visited him. After a visit to Tennessee, Wilma took K.W. to the Monticello Police Department and asked to speak with an officer concerning her original statement to police that Sweet had raped K.W. Wilma told the officer that her prior statements to police were false in that Sweet did not rape K.W. but admitted that K.W. and Sweet had had sex. Wilma claimed that it was originally K.W.'s idea for them to have sex. Wilma insisted that K.W. had given Sweet consent, Wilma had given them permission, and Sweet never forced K.W. to do anything she did not want to do. Wilma asserted that K.W. would come and tell Wilma that she wanted to "do stuff" with Sweet, but K.W. interjected and stated that she did not remember doing that. Wilma told police that K.W. was prone to lying and that Sweet had killed one of K.W.'s pet roosters for lying, but that K.W. is doing better now about telling the truth. Wilma indicated that K.W. loved her pets more than anything including herself, and K.W. was scared that Sweet would kill another of her animals. Wilma claimed that K.W. admitted to her later that she only did it because she did not want Sweet to leave Wilma, but K.W. interrupted and said she never wanted it to happen.

In this same interview, K.W. told police that Sweet had had sex with her and she never wanted it to happen. She recalled four times that she and Sweet had sex. She denied that he hurt her or held her down. She told Sweet "no" many times, but she was too scared and terrified to defend herself or attempt to escape when this occurred. She recalled that she was fearful that he would kill her animals if she did not let it happen. She told police that her mother knew and let the sex happen.

At Sweet's trial,^[3] Wilma claimed that Sweet was the one to suggest that he have sex with K.W. and offered to be her boyfriend while remaining married to Wilma. Wilma testified that she first became aware that Sweet and K.W. had sex after she came home from work one day in November 2018 and K.W. told her what had happened. This caused strife between Wilma and Sweet, with Wilma continually telling Sweet that he could not do this, and Sweet insisting that it was not a big deal. However, when Wilma and K.W. would object, Sweet's behavior towards them would worsen, eventually leading up to him killing K.W.'s rooster in front of K.W. Wilma testified that she observed Sweet attempting to coach and convince K.W. to proceed with the relations. Wilma testified that she also observed K.W. telling him that she did not want to engage in sex with him, but he would promise to buy her things like a rabbit or other animals.

After the initial encounter in November 2018, Wilma described three more times that she was aware that K.W. and Sweet had sex. The next time was at the end of December 2018 or the beginning of January 2019. Wilma was home and heard the two in K.W.'s bedroom, so she entered the room and witnessed them having sex. She testified that the third time was around the beginning of 2019, and the fourth time was around the end of April 2019.

The couple continued to fight, mainly over K.W., which led to the aforementioned domestic dispute on May 8, 2019. As a result of the domestic dispute, Sweet returned to Tennessee and Sarah reported the alleged rape to the police. Wilma testified that when she went to visit Sweet in Tennessee, Sweet threatened to have K.W. and Sarah killed if she did not recant her allegations to the police. Wilma explained that this was why she thereafter told police that the rape allegations were false.

At trial, Sarah testified that when Wilma returned from Tennessee around May 16, 2019, Wilma yelled at K.W. and told her that K.W. needed to go change her story because Sweet had made threats against K.W.'s and Sarah's lives. Sarah also testified that while K.W. had a history of lying, she has become more truthful as she has gotten older.

K.W. testified that she told Sweet many times that she did not want to have sex with him, but he would not take no for an answer. She testified that the very first time they had sex, she told him "no" numerous times but "he just did it." She testified that she never wanted to do it, never told her mom that she wanted to do it, and never told Sweet that she wanted to do it. She testified that he had sex with her four or five times, and her mother knew it was going on. She testified that she never told anyone what was going on because she was scared of him, and he had threatened her that if word got back to anyone about what he was doing, he would hurt her mother and her pets. She testified that she knew he would do it because he once broke her rooster's neck in front of her when she told him that she did not want to have sex with him.

The jury ultimately convicted Sweet of first-degree rape, Class B incest, and being a first-degree persistent felony offender. He was sentenced to a total of thirty years in prison.

II. ANALYSIS

A. Although it was error for the jury instructions to include elements that did not constitute the crimes charged, this error did not rise to the level of palpable error.

Sweet's first two arguments are intertwined and will be discussed concurrently. Sweet argues that a manifest injustice occurred when the trial court used jury instructions for first-degree rape and Class B incest that did not include elements of those crimes, and that this resulted in non-unanimous verdicts. These issues were not preserved for appeal, but Sweet requests palpable error review under Kentucky Rules of Criminal Procedure ("RCr") 10.26. Applying palpable error review to issues potentially invoking a juror unanimity issue requires first determining whether there has been an error in the jury instructions, then determining whether the error was palpable. Johnson v. Commonwealth, 676 S.W.3d 405, 410 (Ky. 2023).

In this case, the Grand Jury Indictment charged:

Count I

That between April 6, 2018 and April 30, 2019, in Wayne County, Kentucky, Gary Sweet committed the offense of Rape, 1^st Degree, a Class B Felony, in violation of K.R.S. 510.040 as a continuing course of conduct against a vulnerable victim, by engaging in sexual intercourse with K.W., who is incapable of consent and/or by forcible compulsion, against the peace and dignity of the Commonwealth of Kentucky.

Count II

That between April 6, 2018 and April 30, 2019, in Wayne County, Kentucky, Gary Sweet committed the offense of Incest, a Class B Felony, in violation of K.R.S. 530.020 as a continuing course of conduct against a vulnerable victim, by engaging in sexual intercourse with K.W., who is incapable of consent and/or by forcible compulsion, against the peace and dignity of the Commonwealth of Kentucky.

At trial, for first-degree rape, the jury was instructed:

CHARGE NO. 1 RAPE, 1ST DEGREE You will find the Defendant guilty of Rape, 1st Degree under the Instruction if you believe from the evidence beyond a reasonable doubt all of the following:

A. That in Wayne County, Kentucky on or between April 6, 2018, and April 30, 2019, and before the finding of the indictment herein, the Defendant engaged in sexual intercourse with K.W.

AND EITHER: B. He did so by forcible compulsion.

OR

C. That K.W. was a vulnerable victim, AND the Defendant knowingly had sexual intercourse with a vulnerable victim; AND the sexual intercourse with K.W. occurred two or more times between April 6, 2018, and April 30, 2019.

The Commonwealth told the jurors that they all...