NOT TO BE PUBLISHED

OPINION

COMBS, Judge.

Darrin K. Cole appeals from a judgment of the Fayette Circuit Court after a jury convicted him of one count of sexual abuse in the first degree. After reviewing his arguments and the applicable law, we affirm.

Cole was employed as a maintenance/custodial supervisor by the Todd County Board of Education. He also worked with the Todd County Band and routinely acted as a chaperone on school trips. Rory Fundora, who is the district coordinator for the Student Technology Leadership Program (STLP), asked Cole to drive a group of students in the Todd County bus to Lexington to attend an STLP statewide event. One of the students on the trip was C.W., a seventeen-year-old high school student who had never been on an overnight trip before. C.W. was selected for the trip because he had developed an STLP project under the guidance of Matthew Laughter, who was the technology adviser at C.W.'s school. C.W. had a good rapport and relationship with Laughter.

When the group arrived in Lexington, C.W. was assigned to a hotel room at the Hyatt Regency with Cole, two of C.W.'s high school friends, and Jason Wilson, principal of the middle school. CW. did not know Wilson and Cole personally beyond being able to identify them and their roles in the Todd County educational system.

Wilson and the students went out to explore the hotel and the attached Rupp Arena. After watching some TV, Cole put in his earphones to drown out any noise and went to sleep on the bed on the far right side of the room. He was fast asleep when the others returned to the room. C.W. returned at about 11:30 p.m. He observed that both beds in the room were taken, with the two other boys in one bed and Cole in the bed by the window. Wilson, the principal, had bedded down on the floor directly in front of the door so he could keep track of the students' comings and goings. C.W. decided to lie down on the floor between the two beds with his head pointing toward the night stand and his feet pointing towards the foot of the beds. He was wearing boxers, socks, and his cargo shorts, which he testified were buttoned and zipped.

C.W. testified that at some point, he awakened from a "weird dream" to find Cole fondling his testicles and penis. Cole was still on the bed. C.W. testified that he said, under his breath, "get the f**ck off me," got up, took his room key and iPod, and left the room. As he left, he awakened Wilson, who was sleeping across the doorway. C.W. testified that he did not want to speak or confide in Principal Wilson because he did not really know him and he just wanted to get out. C.W. testified that he felt he could trust Laughter.

Wilson allowed C.W. to leave the room. C.W. went down the hall and thought about whether he wanted to report the incident. He felt embarrassed and "weak," but he concluded that reporting the incident was the right thing to do because Cole chaperoned school bands and was the school photographer. Accordingly, C.W. reported what had happened to Laughter and Fundora. The other students were removed from the room while Cole was still sleeping. He was later awakened by law enforcement officers. He seemed shocked. He told them that he had issues with sleep walking and that he did not remember touching C.W.

Following his trial, Cole was sentenced to one year and six months, probated for a period of five years, and was adjudicated to be a sex offender.

Cole raises three arguments on appeal: (1) that the trial court erred in admitting hearsay statements made by the victim, C.W., as excited utterance exceptions; (2) that the trial court erred in allowing the Commonwealth to perform experiments with Cole and with a table that Cole provided and used in a demonstration; and (3) that he was entitled to a directed verdict.

Cole argues that the trial court erred in admitting hearsay statements made by the victim, C.W., as excited utterance exceptions. In reviewing a question of admissibility of evidence, our standard is whether the trial court abused its discretion. Johnson v. Commonwealth, 105 S.W.3d 430, 438 (Ky.2003). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Our review of this argument is hampered by the fact that Cole does not specify or describe the content of the disputed testimony or where it was preserved in the record. He states only that the error was preserved by filing a motion in limine, by objecting at trial, and by making a motion for a new trial. CR1 76.12(4)(c)(iv) requires a "STATEMENT OF THE CASE" containing a chronological summary of facts and procedural events supported by "ample references to the specific pages of the record, or tape and digital counter number[.]" Similarly, CR 76.12(4)(c)(v) requires an "ARGUMENT," which must contain:

It is axiomatic that "[i]t is not the job of the appellate courts to scour the record in support of an appellant's . . . argument," Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011). Nonetheless, we have located the motion in limine in the record after a search. It was filed by the Commonwealth — not by Cole — and sought a ruling in advance of trial on the admissibility of C.W.'s statements to Wilson and Laughter immediately after the incident at the hotel. Cole filed a response opposing admission of the statements.

The Commonwealth's brief contains more specific references to the trial record than does the appellant's. It describes the contested statements as having been made by C.W. to Fundora and Laughter rather than to Wilson and Laughter. According to the Commonwealth, Laughter testified that C.W. was "crying, shaking, very angry and was the same color red as his hair." Laughter also testified that C.W. told him he had awakened and found that Cole had his hand down his pants.

KRE2 803(2) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. In determining whether a statement was an excited utterance, the court is directed to consider eight factors:

Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky.1986).

Cole argues that C.W.'s statements (which he does not describe or otherwise characterize) did not meet these requirements. He points out that C.W. left the hotel room without mentioning anything to Wilson, the chaperone who was present there; that no one can corroborate the amount of time between the incident and the time when C.W. decided to leave the room; that C.W. took the elevator to the next floor and reflected upon the incident before making his report; and finally, that it is unknown whether C.W.'s declaration was self-serving.

The trial court found that the incident was still immediate in C.W.'s mind and that he was visibly shaking and had tears in his eyes when he reported to the chaperones. The trial court concluded that "pulling his pants up and going down one floor does not cause me to conclude that there was enough time for reflection." We conclude that the trial court adequately considered the relevant factors, and we hold that its decision to admit the hearsay testimony under the excited utterance exception was not an abuse of discretion.

Next, Cole argues that the trial court erred in admitting demonstrative evidence regarding whether Cole could have reached C.W. from the bed as alleged by C.W. During the trial, Cole's attorney conducted an experiment using a table of the same height as the bed in the hotel room. Cole was placed on the table, and a summer intern was placed on the floor in the same position as that occupied by C.W. Cole's attorney tried to demonstrate to the jury logistically how Cole could not have touched C.W. if C.W. had been in the position that he claimed. On cross-examination, the Commonwealth Attorney positioned herself on the table and demonstrated to the contrary how the incident could have occurred.

Cole now argues that the trial court erred in allowing the demonstration by the Commonwealth Attorney because it was purely conjectural or speculative.

We disagree. It was Cole who initiated the demonstration, and the trial court did not abuse its discretion in allowing the Commonwealth to challenge Cole's reenactment of what occurred:

Rankin v. Commonwealth, 327 S.W.3d 492, 498 (Ky. 2010) (citing United States v. Williams, 461 F.3d 441 (4th Cir.2006); United States v. Baldwin, 418 F.3d 575 (6th Cir.2005); United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993); Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434 (10th Cir.1992)). In this case, the experiment or demonstration was initiated by the defendant, who cannot now raise objections to its admission. Cole opened the door to all that ensued.

Robert G. Lawson, The Kentucky Evidence Law Handbook § 1.10[5] (4th ed. 2011) (quoting 1 Mueller & Kirkpatrick, Federal Evidence, § 12 (2d ed. 1994)). The trial court did not abuse its discretion in allowing the Commonwealth Attorney to conduct the demonstration.

Cole also argues that he was entitled to a directed verdict. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). The evidence presented by the prosecution must be more than a mere scintilla. Id. at 188.

Cole claims he was entitled to a directed verdict because the jury instructions defined sexual contact as "any touching of the sexual or intimate parts of a person done for the purpose of gratifying the sexual desire of either party." He contends that there is no evidence that Cole touched C.W. for sexual gratification — or that he touched him at all — other than C.W.'s "confusing" testimony. He claims that the incident could not have occurred without awakening the other people sleeping in the room and that if C.W. had truly been the victim of a sexual assault, he would have reacted in a more agitated manner.

We agree with the Commonwealth that evidence of sexual gratification could be inferred from C.W.'s testimony regarding the parts of his body that Cole touched. As to his other arguments, "[i]t is the sole province of the jury to determine the credibility of evidence." Mishler v. Commonwealth, 556 S.W.2d 676, 680 (Ky. 1977). The trial court did not err in denying the motion for a directed verdict.

Finally, Cole argues that the statement of the Commonwealth Attorney in closing argument that Cole had "been caught" assaulting C.W. was misleading because he was not "caught" by a third person who witnessed the assault. In order to justify reversal for improper closing arguments, "the misconduct of the prosecutor must be flagrant." Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002). According to the Commonwealth, this error is not preserved, nor has Cole requested palpable error review. We agree that it is unpreserved, and we decline to review for palpable error.

We affirm the judgment of the Fayette Circuit Court.

ALL CONCUR.