## Facts

- H. Drew Mayo was indicted for first-degree rape, first-degree sodomy, and being a second-degree persistent felony offender (PFO 2) based on an alleged sexual assault of his estranged wife.
- The complainant testified the parties had been separated for about two weeks; she brought Mayo to the former marital home to talk, an argument occurred, and Mayo forcibly raped her and forced oral sex by threats and intimidation.
- Mayo testified the sexual acts were consensual, asserting the couple had been spending time together and had engaged in consensual intercourse multiple times shortly before the incident.
- Before trial, the Commonwealth sought to exclude evidence of the complainant’s sexual history; the trial court applied Kentucky Rule of Evidence (KRE) 412 and limited sexual-history evidence.
- The trial court permitted Mayo to testify about recent consensual sex with the complainant in the days immediately preceding the alleged assault, but excluded testimony that the couple had previously engaged in consensual anal intercourse.
- A jury convicted Mayo of rape, sodomy, and PFO 2; it recommended a single 20-year PFO-enhanced sentence, which the court imposed.

## Issues

1. Whether KRE 412 applies when the alleged victim is the defendant’s spouse, and whether the trial court properly excluded evidence of prior consensual anal intercourse between Mayo and the complainant.
2. Whether prosecutorial remarks during cross-examination and closing argument required a mistrial or additional jury admonition.
3. Whether the trial court committed reversible error by not expressly obtaining Mayo’s waiver of the right to poll the jury.

## Decision

- The Supreme Court of Kentucky affirmed the convictions and 20-year sentence.
- The court held KRE 412 applies in spousal sexual-assault prosecutions and the exclusion of prior anal-intercourse evidence was not an abuse of discretion and did not violate the right to present a defense.
- The court held the challenged prosecutorial remarks did not warrant a mistrial or reversal under the circumstances.
- The court held any jury-polling error was unpreserved or harmless because no prejudice was shown.

## Legal Principles

- KRE 412 bars evidence offered to prove a victim’s other sexual behavior or sexual predisposition, subject to limited exceptions and procedural safeguards; marital status does not remove such evidence from KRE 412’s scope.
- Evidence of specific sexual acts between the victim and the accused may be admissible to prove consent, but trial courts retain discretion to exclude details with limited probative value and substantial risk of improper propensity reasoning.
- Excluding some sexual-history details does not violate the constitutional right to present a defense when the defendant can still present the core theory (including consent) through other admitted evidence.
- A mistrial is discretionary and requires prejudice sufficient to deny a fair trial; claims of improper argument are assessed in context and may be cured by trial-court management.
- The right to poll the jury may be waived; absent preservation and a showing of prejudice, a failure to secure an express waiver does not require reversal.

## Conclusion

The Kentucky Supreme Court affirmed Mayo’s rape, sodomy, and PFO 2 convictions, holding that KRE 412 applies to spousal victims and that excluding evidence of prior consensual anal intercourse, while allowing evidence of recent consensual sex, was a permissible exercise of trial-court discretion and did not deny Mayo a fair trial.


Mayo v. Commonwealth, 322 S.W.3d 41 (Ky. 2010)