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March 19, 2026 Get Citation Alerts Download PDF Add Note

Christopher T. Thrasher v. Commonwealth of Kentucky

Kentucky Supreme Court

• Citations: None known
• Docket Number: 2024-SC-0031
• Precedential Status: Non-Precedential

• Disposition: MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART, REVERSING IN PART AND REMANDING

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (76.8K)

• PDF

Disposition

MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Combined Opinion

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS
OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR
CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN
UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A
COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
THE ACTION.
RENDERED: MARCH 19, 2026
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2024-SC-0031-MR

CHRISTOPHER T. THRASHER APPELLANT

ON APPEAL FROM CLINTON CIRCUIT COURT
V. HONORABLE DAVID WILLIAMS, JUDGE
NO. 21-CR-00114

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

This case is before the Court as a matter of right following the conviction

of the Appellant, Christopher Thrasher, for twenty-two counts of possession of

a matter portraying a minor in a sexual performance. He was sentenced to

twenty years in prison. His first claim of error is the underlying search warrant

contained a statement made with a reckless disregard for its truth and omitted

a material fact and, thus, lacked probable cause when these alleged errors are

remedied. Second, he argues the trial court committed palpable error in

admitting an email conversation into evidence. Third, the trial court palpably

erred when it informed the jury the maximum possible sentence was seventy

years in prison and failed to inform the jury Thrasher would be parole eligible

upon completion of the Sex Offender Treatment Program. Finally, Thrasher

argues his convictions currently constitute Class C felonies but should properly
be considered Class D felonies pre-dating recent legislative amendments. For

the following reasons, we affirm Thrasher’s convictions but conclude palpable

error occurred during the penalty phase necessitating resentencing.

I. Facts
Thrasher and his ex-wife, Stephanie, separated in the summer of 2020.

While moving out, Stephanie found a printout of a snippet of an email

conversation regarding obtaining images of an underage girl. This conversation

took place in 2007 and was supposedly observed by Stephanie at that time,

who then printed the conversation unbeknownst to Thrasher. She retained the

printout but did nothing with it until November 2020 when she turned it over

to the Kentucky State Police. Trooper Warinner was at that time investigating

Thrasher regarding an accusation that he had sexually abused his eleven-year-

old niece. Based on this allegation and the email conversation, Trooper

Warinner sought and obtained a warrant to seize electronic devices in

Thrasher’s home. A second warrant was obtained to search the contents of four

computers. Three of these computers were found to contain images portraying

minors in a sexual performance and formed the basis for the underlying

convictions.

The warrant affidavit for the second search warrant stated, in relevant

part:

On June 15, 2020, at approximately 8:00 am Trooper Jordan
Carter received information that [J.S.] 1 had concerns about her

1 Out of concern for identifying a potential victim, we use initials for the victim

and victim’s mother. They share the same initials, but this will not be a cause for
confusion.
2
daughter being sexually abused by Chris Thrasher, her brother-in-
law. [J.S.] related to Trooper Carter that her daughter, J.S., told
her that Chris had been touching her “front butt.” J.S. was 11
years old at the time this started occurring. Trooper Carter spoke
to Chris Thrasher’s wife, Stephanie, about the allegation.
Stephanie Thrasher indicated in their conversation that Chris had
been acting differently and she felt like something was wrong.
Stephanie Thrasher indicated to Trooper Carter that he had done
what J.S. said he did, that “something was wrong with him and he
needed help.” She did relate to Trooper Carter that Chris later
recanted this statement to her.

Acting on information received, Affiant [Trooper Warinner]
conducted the following independent investigation: On November
1, 2020, I received a copy of an email from Stephanie Thrasher
that she had found when going through old computers and other
things at her house. The email appears to be a conversation
regarding an underage child, approximately 12 to 13 years old
based on the context of the conversation between Chris Thrasher
and an unidentified subject. Based on my training and experience
and discussions I have had with other investigators and officers
who investigate child exploitation offenses, I am aware that
individuals who have a sexual interest in children or images of
children as referenced in the email I received, may receive sexual
gratification, stimulation, and satisfaction from contact with
children or from viewing children engaged in sexual activity or in
sexually suggestive poses or photographs or other visual media as
referenced in the email I received. Individuals who have a sexual
interest in children almost always maintain a collection of their
child pornography material either in a hard copy form or in a
digital electronic format in a safe environment, such as a computer
or other digital storage media. The five computers that have been
obtained and identified in this affidavit were used by Chris
Thrasher.

Notably, the email conversation was not included in the warrant affidavit.

The warrant-issuing judge did not consider it and neither did the circuit court

when it ruled upon and denied Thrasher’s motion to suppress. Thrasher’s

motion was premised on two contentions. First, that the affidavit states the

email conversation was “between Chris Thrasher and an unidentified subject.”

Thrasher argued the email conversation in fact contains no personal identifying
3
information and that neither of the usernames in the email exchange were

linked to him in the affidavit. Secondly, Thrasher argues the affidavit omits

that the conversation took place in 2007, thirteen years prior to the search

warrant being sought. Thrasher argues this is a material fact reflecting that the

email is stale information. These two errors combined, Thrasher argues, render

the affidavit fatally defective and lacking probable cause.

The Commonwealth responds that the trial court correctly concluded

there is no evidence Trooper Warinner acted intentionally or recklessly when he

filed the warrant affidavit, nor is there any evidence Trooper Warinner’s

apparent assertion that the email conversation was between Thrasher and an

unknown person is false. The Commonwealth highlights that Thrasher had the

burden to support his argument with an “offer of proof” and that he failed to

meet this burden. Franks v. Del., 438 U.S. 154, 171-72 (1978). The

Commonwealth also argues the date of the conversation in 2007 was not

intentionally or recklessly omitted, or that it reflects stale information. The

Commonwealth cites several cases from various federal circuit courts for the

general proposition that “staleness” in the specific context of child pornography

crimes has a longer time threshold because child pornography is frequently

stored electronically and could potentially exist on an electronic storage device

for decades if not longer.

The email conversation would later be introduced as evidence at trial.

Thrasher did not object to its introduction at trial but now argues its admission

was palpable error because the Commonwealth failed to properly authenticate

4
it pursuant to KRE 2 901. Once again, the conversation itself does not contain

any personally identifying information linked to Thrasher and only Stephanie

testified to discovering the conversation on one of Thrasher’s computers and

printing it out in 2007. The Commonwealth argues Stephanie’s testimony was

enough to authenticate the printout as a true and accurate copy of what it

purported to be.

The next issues are also unpreserved and occurred during the penalty

phase. First, Thrasher argues the trial court erred in instructing the jury that

his convictions were Class C felonies eligible for a sentence between five and

ten years each. Although this is currently the law under KRS 531.335(3)(b), the

statute prior to March 23, 2021, designated possession of a matter portraying a

minor under twelve years of age in a sexual performance as a Class D felony.

See 2021 Ky. Acts Ch. 81, § 1; Applegate v. Dickman L. Offs., P.S.C., 507

S.W.3d 28, 30 (Ky. App. 2016) (identifying offense as a Class D felony under

previous statute). Importantly, the indictment and guilt phase instructions

were demarcated by which computer the images were found on and by dates.

Hence, the indictment and instructions for Computer #2 were for October 27,

2012, to January 2, 2021; for Computer #3, the indictment covered dates

between June 2015 to May 2018, while the instructions were for August 2017

to May 2018. For Computer #4, the indictment’s dates were for April 2020 to

January 2021 while the instructions were for April 2021 to July 2021. 3 Thus,

2 Kentucky Rules of Evidence.
3 Thrasher notes in his brief that the “July 2021” date must be a typo based on

the underlying indictment and the fact that the Kentucky State Police had seized this
5
Thrasher argues the conduct occurred prior to the legislative amendment of

KRS 531.335(3)(b) in March 2021, and the jury should have been limited to

considering the offenses he was convicted of as Class D felonies.

In response, the Commonwealth concedes the trial court erred in

misidentifying his offenses as Class C felonies. Nonetheless, because KRS

532.080(6)(b) sets the sentencing range for multiple Class D felony convictions

at twenty years, the Commonwealth argues there is no error to remedy as that

is the sentence Thrasher received. In contrast to Thrasher’s view that the jury

was lenient towards him, the Commonwealth contends the least the jury could

have sentenced him to was five years had it chosen to recommend concurrent

sentencing. Instead, it chose a five-year recommendation on each count to be

served concurrently in part and consecutively in part for a total of twenty-two-

years.

Next, Thrasher argues the trial court erroneously instructed the jury the

maximum sentence he could receive was seventy years. Given the sentencing

cap in KRS 532.110(1)(c), Thrasher argues the maximum sentence he could

receive was twenty years. Thus, he contends the trial court palpably erred in

mis-instructing the jury. He argues the prejudice of this error is demonstrated

by the jury recommending a twenty-two-year sentence, less than a third of the

potential maximum it was erroneously informed of. The Commonwealth, too,

computer in January 2021. We agree, as Thrasher could obviously not be guilty of
possessing or viewing matters portraying a sexual performance by a minor on a
computer in the custody of the Commonwealth after it was seized on January 16,
2021.
6
only argued for a twenty-year sentence. The trial court later declined to follow

the twenty-two-year recommendation because it believed the maximum

sentence available was twenty years. The Commonwealth concedes the trial

court misinformed the jury regarding the maximum length of sentence but

argues there is no palpable error since Thrasher received an authorized

sentence.

Similarly, Thrasher also argues the jury was inaccurately informed of the

conditions of parole eligibility. During the penalty phase, the Commonwealth

elicited testimony that Thrasher would be eligible for parole after serving

twenty percent of his total sentence. Thrasher now argues the jury should have

also been informed that for those convicted of sex crimes, parole is unavailable

until completion of the Sex Offender Treatment Program. KRS 197.045(4). The

Commonwealth responds that Thrasher’s argument that he might have

received a lesser sentence had the jury been informed of this requirement is

speculative and not adequate grounds for reversal.

II. Analysis

A. Probable Cause Existed to Issue Search Warrant
The suppression issue is preserved. 4 Our standard of review is well-

known.

4 The Commonwealth argued in its brief that this issue should not be

considered on the merits because Thrasher had not put forth evidence below making a
prima facie showing that he was not a participant in the email conversation. While
that is the requirement of Franks, 438 U.S. at 171, we must be cognizant that in the
specific context of this case, that would require Thrasher to prove a negative—that he
was not a participant in the email conversation. “Of course, the difficulty, even
impossibility, of proving a negative has been noted frequently in our jurisprudence.”
7
The proper test for appellate review of a suppression hearing ruling
regarding a search pursuant to a warrant is to determine first if
the facts found by the trial judge are supported by substantial
evidence and then to determine whether the trial judge correctly
determined that the issuing judge did or did not have a
“substantial basis for ... concluding” that probable cause existed.

Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010) (quoting Illinois v. Gates,

462 U.S. 213, 236 (1983)) (internal citations omitted).

When a defendant attacks the fruit of a search warrant based on
the premise that the information supplied to the issuing magistrate
is inaccurate . . . the defendant is required to show that: (1) the
affidavit contains intentionally or recklessly false statements, and
(2) the affidavit, purged of its falsities, would not be sufficient to
support a finding of probable cause.

Hayes v. Commonwealth, 320 S.W.3d 93, 101 (Ky. 2010). All agree that

information contained in a warrant affidavit must be truthful but the Supreme

Court of the United States long ago made clear that “[t]his does not mean

‘truthful’ in the sense that every fact recited in the warrant affidavit is

necessarily correct . . . [only] that the information put forth is believed or

appropriately accepted by the affiant as true.” Franks, 438 U.S. at 165.

The flaw in Thrasher’s argument is his assertion that the affidavit asserts

as fact that the email conversation took place “between Chris Thrasher and an

unknown subject.” That is not the full sentence, and we will not read a warrant

Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 874 (Ky. App. 2021). Kentucky courts have
long recognized such an imposition “in the general, should not be done.” Mills v.
Rouse, 12 Ky. 203, 206 (1822). Finally, in previous cases where we have determined
the defendant did not put on sufficient proof to warrant a hearing under Franks, we
have still proceeded to consider “whether the issuing judge had a substantial basis for
concluding that probable cause existed.” Rawls v. Commonwealth, 434 S.W.3d 48, 58
(Ky. 2014).

8
affidavit out of context. The full sentence reads, “The email appears to be a

conversation regarding an underage child, approximately 12 to 13 years old

based on the context of the conversation between Chris Thrasher and an

unidentified subject.” The sentence begins by couching its claim in equivocal

terms—the email “appears to be a conversation” between Chris Thrasher and

an unknown person regarding a thirteen-year-old girl. Importantly, the

conversation itself was not made a part of the warrant affidavit and was not

considered by the courts below. That was correct as reviewing courts are

limited to the four-corners of the affidavit itself. Gates, 462 U.S. at 240.

We conclude the affidavit does not contain an intentionally false

statement or a statement made with reckless disregard for its truth. We read

the statement as nothing more than Trooper Warinner stating he had seen a

conversation which appeared to be between Thrasher and another person on

the topic of exchanging illegal photos. This is supported by the fact that the

conversation itself unambiguously refers to an underage girl by her age—there

is nothing speculative about it on that topic. Thus, the “appears to be”

language is appropriately referred to the participants in the conversation where

there is ambiguity and not the content of the conversation where there is no

ambiguity.

That this statement may not have been or may not now be true in the

sense that it is a brute fact is not the standard. The statement need only be

one “appropriately accepted by the affiant as true[,]” at the time it was made.

Franks, 438 U.S. at 165. Trooper Warinner recounted how he came to possess

9
the conversation, described an open investigation of Thrasher regarding the

sexual abuse of his niece, as well as hearsay statements by his wife that

Thrasher had initially admitted to the abuse of his niece though later recanted.

Thus, we conclude the affidavit contained a sufficient description of the

background to justify why Trooper Warinner would believe the email

conversation included Thrasher as a participant.

As to the omission of the date of the conversation in 2007, it is

blackletter law that “stale information cannot be used in a probable cause

determination.” United States v. Frechette, 583 F.3d 374, 377 (6th Cir. 2009).

As to including time and dates of evidence in warrant affidavits, we have

endorsed “the better practice to include such information, as it forecloses any

complaint about the staleness of the information.” Abney v. Commonwealth,

483 S.W.3d 364, 369 (Ky. 2016). But we have not established a bright line rule

that such information is always required. Time and dates may be omitted so

long as the other information in the affidavit under “the totality of the

circumstances indicates with reasonable reliability that the evidence sought is

located in the place to be searched.” Id.

The Commonwealth correctly notes that in the context of child

pornography contained on electronic devices, federal courts have recognized

that the length of time to determine staleness is significantly longer than in

other contexts. Frechette, 583 F.3d at 377; United States v. Wagner, 951 F.3d

1232, 1246 (10th Cir. 2020); United States v. Bosyk, 933 F.3d 319, 330 (4th

Cir. 2019). At least one court has concluded that events believed to have

10
occurred five to eight years prior to the issuance of the search warrant for child

pornography was not stale; however, that case is distinguishable as the

underlying allegation came from the defendant’s daughter who specifically

accused her father of videotaping her abuse. United States v. Ebert, 61 F.4th

394, 398 (4th Cir. 2023). On the other hand, another court has determined

images uploaded on the internet, alone and without any indication in the

affidavit for when they were uploaded (though were likely two to four years old),

was stale. United States v. Prideaux-Wentz, 543 F.3d 954, 958-59 (7th Cir.

2008).

Courts have spoken in strong language regarding the staying power of

evidence of child pornography: “the images can have an infinite life span.”

Frechette, 583 F.3d at 378. Taken too literally, such language would essentially

nullify the staleness doctrine vis-à-vis child pornography, or indeed any digital

crime. Thus, “there must be some limitation on this principle.” Prideaux-Wentz,

543 F.3d at 958. For example, that collectors of child pornography tend to

hoard their illicit materials over time and secure their possession by some

means is relevant to a probable cause determination but only “if there is

probable cause to believe that a given defendant is such a collector.” United

States v. Raymonda, 780 F.3d 105, 114 (2d Cir. 2015) (quoting United States v.

Coreas, 419 F.3d 151, 156 (2d Cir. 2005)). Boilerplate assertions about the

proclivities of child pornography collectors have no salience if the underlying

circumstances described in the warrant affidavit do not establish probable

cause to believe the suspect is a child pornography collector.

11
Another guardrail is the frequent combination of new evidence so as to

revivify old evidence. Prideaux-Wentz, 543 F.3d at 958 (citing United States v.

Newsom, 402 F.3d 780, 783 (7th Cir. 2005) and United States v. Harvey, 2 F.3d

1318, 1322–23 (3d Cir. 1993)). “[O]therwise stale information may be refreshed

by more recent events.” United States v. Cantu, 405 F.3d 1175, 1177-78 (10th

Cir. 2005). This case is an instance of this scenario. A thirteen-year-old

printout of a conversation without any evidence Thrasher was a participant in

that conversation would likely lead to a conclusion the warrant was based on

stale information if that was the sole evidence detailed in the affidavit. It was

not the sole evidence in the underlying affidavit. Trooper Warinner also

recounted that Thrasher was a suspect in an open investigation regarding the

sexual abuse of his niece; that investigation began in June 2020, only six

months prior to the warrant being sought; and that Thrasher’s ex-wife had

informed Kentucky State Police that he had initially admitted to the abuse but

later recanted. The more recent information, therefore, revivified the relevance

of the email conversation such that the warrant was not based upon stale

information. The warrant was supported by probable cause and the trial court

correctly denied Thrasher’s motion to suppress.

B. Harmless Error in Admission of Email Conversation
The email conversation is once more a subject of controversy as Thrasher

argues the trial court palpably erred when it allowed the conversation to be

admitted into evidence without proper authentication. There was no objection

12
at trial, so we review for a manifest injustice. RCr. 5 10.26. “To discover

manifest injustice, a reviewing court must plumb the depths of the proceeding .

. . to determine whether the defect in the proceeding was shocking or

jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.

2006).

Under KRE 901, to authenticate a document the proponent need only

establish the document is what it purports to be. “The burden on the

proponent of authentication is slight; only a prima facie showing of authenticity

is required.” Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010). In

Brafman v. Commonwealth, we observed “the susceptibility of cellular messages

and screenshots to quick fabrication and alteration requires a more discerning

eye from the trial court and more than mere assertions by a lay witness that

they were sent by the criminal defendant.” 612 S.W.3d 850, 867-68 (Ky. 2020).

In that case, printouts of text messages were introduced into evidence merely

on the assertion of a witness that the defendant was the one who sent the

messages to him. Id. That was inadequate as “[n]othing about the screenshot

links the messages to Brafman [the defendant] personally,” nor did the

Commonwealth even establish the phone number belonged to him. Id. at 867.

In this case, Stephanie testified she discovered the email on Thrasher’s

computer in 2007, printed out the conversation, and then kept it with her

personal belongings until rediscovering it thirteen years later. Similar to

Brafman, nothing about the printout personally links Thrasher to it. There was

5 Kentucky Rules of Criminal Procedure.

13
no evidence indicating that either of the participants in the conversation was in

fact Thrasher. Trooper Warinner testified by deposition that the digital report

after the computers had been searched made no mention of the email

conversation, thus, there was nothing linking the conversation to any of the

images found on his computers. Since Brafman held authentication could not

be established by a participant in a digital conversation absent more direct

evidence linking that conversation to the defendant as a participant, we

conclude a third-party, non-participant to a conversation is obviously

incapable of authenticating a printout of an email conversation insofar as she

is capable of testifying Thrasher in fact participated in the conversation. To be

clear, Stephanie’s testimony was not that she witnessed Thrasher sending or

receiving the messages which would change the analysis, only that she found

the conversation on his computer. The Commonwealth’s inability to link

Thrasher to one of the two email addresses in the conversation even after a

forensic search of four of his computers is fatal. We, therefore, conclude there

was error, but it is not palpable.

Given the weight of the evidence, the more than one hundred images

found on three computers belonging to Thrasher, and that his only defense was

absolute innocence, therefore, someone else must have downloaded such

images, we do not think there is a substantial possibility of a different result

had the email conversation not been introduced into evidence. It is simply not

an error that, upon review of the record, “jumps off the page ... and cries out

for relief.” Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (quoting

14
Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011) (Cunningham, J.,

concurring)).

C. Palpable Error in Misinforming Jury on Felony Status and
Maximum Sentence Length
Finally, there are the penalty phase errors. Notably, the Commonwealth

concedes that error occurred in both instances but argues none were palpable.

We do not agree. The trial judge mis-instructing the jury that Thrasher’s

convictions were Class C felonies, thus subject to a higher mandatory

minimum of five years rather than one year, KRS 532.060(2), combined with

the trial court’s erroneous instruction that the maximum sentence Thrasher

could have received was seventy years, was palpable error. 6

Because the Commonwealth concedes these errors, we need not

discourse at length upon them. The indictment and jury instructions were

predicated upon dates and times that predated the General Assembly’s

elevation of possession of matter portraying a minor in a sexual performance

from a Class D felony to a Class C felony. The trial court erred in instructing

the jury otherwise. The trial court then erred in informing the jury the

maximum sentence possible was seventy years when it was in fact twenty

years. KRS 532.110(1)(c)1; KRS 532.080(6).

The jury having been so instructed then recommended a sentence of

twenty-two years. Realizing its error, the trial court reduced the sentence to

6 To be clear, however, the error regarding the misidentification of the

convictions as Class C felonies rather than Class D felonies is a sentencing issue not
subject to the rule of preservation. Webster v. Commonwealth, 438 S.W.3d 321, 326
(Ky. 2014).
15
twenty years. Thrasher argues the jury’s recommendation shows an inclination

to leniency; it was erroneously told it could give up to seventy years and chose

a sentence less than a third of that. Accordingly, argues Thrasher, had it been

correctly informed the maximum sentence was twenty years, there is a

substantial possibility it might have recommended a lesser sentence. The

Commonwealth makes the strange argument that because the jury did not

recommend the lowest possible sentence it thought it could have given—five

years on each count to be served concurrently—it was not trying to be lenient.

To quote the Commonwealth, “given their sentence recommendation, which

was not the minimum penalty (five years), Thrasher has failed to show any

likelihood of a lighter sentence.” We reject this reasoning. Leniency is not

binary. It operates on a spectrum. A jury’s choice to not give the least possible

sentence does not in and of itself demonstrate that it was not inclined to

leniency. We agree with Thrasher that recommending a sentence of only

twenty-two years after being misinformed it could have given a seventy-year

sentence does in fact indicate a disposition toward leniency.

The Commonwealth also argues that we should reconceptualize the

jury’s recommendation. As that argument goes, Thrasher was found guilty of

twenty-two counts. The jury gamed the math in the sentencing phase so that it

recommended the minimum five-year sentence on each count, then declared

the sentence should be served concurrently in part, consecutively in part for a

total of twenty-two years. Essentially, the Commonwealth argues to

reconceptualize the jury recommendation as one year in prison for each count

16
to be served consecutively. Although this argument is somewhat persuasive as

a plausible explanation of what the jury was doing, the Commonwealth’s

extrapolation from this reconceptualization is conclusory: “they thought he

deserved the twenty-two-year sentence.” That is a truism—every jury believes

the defendant deserves the sentence it recommends. The better extrapolation is

that had the jury been correctly informed of the maximum twenty-year cap, its

recommendation of twenty-two years is not so discordant that it likely would

have recommended less. Nevertheless, we must discern the jury’s mind in the

circumstances as it existed at trial, and we believe those circumstances

demonstrate the jury was not inclined to hand down a maximum sentence but

be lenient.

Lastly, although Thrasher ultimately received an authorized sentence but

for the errors of the trial court, he points out that because of those errors the

trial court ended up giving him the maximum possible sentence contrary to the

leniency evidenced by the jury’s recommendation. We agree. We, therefore,

conclude the foregoing errors combined in such a way that there is a

substantial possibility that had the jury been correctly instructed on the

classification of the sentences and correctly instructed on the maximum

sentence possible, the recommendation would have been less than twenty

years and, consequently, the sentence ultimately given by the trial court would

17
have been different. We vacate Thrasher’s sentence and remand for a new

penalty phase. 7

III. Conclusion
Thrasher’s convictions are affirmed. The search warrant at issue was

supported by probable cause and there was no palpable error in the admission

of the email conversation into evidence at trial. We vacate his sentence. We

conclude the jury was inclined to leniency and the trial court’s errors in

misinforming the jury as to the classification of the offenses and the maximum

sentence allowable had such an impact that a substantial possibility of a

different result exists absent the errors. We remand to Clinton Circuit Court for

resentencing.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Molly Mattingly
Kathleen Kallaher Schmidt
Assistant Public Advocates

COUNSEL FOR APPELLEE:

Russell M. Coleman
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

7 We express no opinion on any other issue presented by this appeal.

18