Opinion
2012-SC-000063-MR
06-19-2014
JEFF MEADE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Katie L. Benward Assistant Public Advocate COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky James Daryl Havey Assistant Attorney General
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
NO. 10-CR-00126
MEMORANDUM OPINION OF THE COURT
AFFIRMING, IN PART, AND
VACATING AND REMANDING. IN PART
A circuit court jury convicted Jeff Meade, Jr., of use of a minor in a sexual performance, possession of matter portraying a sexual performance by a minor, first-degree sexual abuse, and first-degree wanton endangerment. The jury also adjudicated him a second-degree persistent felony offender (PFO). Following the jury's recommendation, the trial court sentenced Meade to consecutive sentences totaling seventy years' imprisonment. Meade appeals the resulting judgment as a matter of right.
Ky. Const. § 110(2)(b).
Meade alleges that (1) his use of a minor in a sexual performance conviction precludes conviction for possession of matter portraying a sexual performance by a minor and first-degree sexual abuse on double-jeopardy grounds, (2) the trial court's decision to allow the child victim to testify outside the courtroom violated his right to confront witnesses against him, (3) his seventy-year sentence exceeds the maximum permissible aggregation of consecutive sentences, and (4) the trial court failed to properly "fix" his sentences.
We find none of Meade's convictions violate double jeopardy and the trial court did not abuse its discretion in allowing the victim to testify outside the courtroom. Finding no double-jeopardy or confrontation-clause violations, we affirm Meade's convictions. We also conclude Meade's sentence does not exceed the statutory maximum for consecutive sentences but the trial court erred in its final judgment by failing to fix a separate sentence for each conviction. This was a clerical error, so we vacate the judgment and remand the case for entry of an amended judgment correcting the sentencing error.
I. FACTUAL AND PROCEDURAL HISTORY.
Meade was in a relationship with Ida Lambert, the grandmother of nine-year-old Sally. Lambert often kept Sally while her mother was at work. One afternoon, Meade arrived at Lambert's home and asked if he could take Sally for a walk. After receiving Lambert's permission, Meade and Sally departed under the ruse of looking for mica along the nearby railroad tracks.
We have chosen a pseudonym to protect the identity of the child.
After traveling a considerable distance down the tracks, Meade and Sally entered the track-side weeds. Meade then instructed Sally to undress, expose her genitalia, and simulate sexually suggestive positions and actions. While Meade was directing Sally's sexually-charged exploitation, he masturbated and filmed her actions. Scenes of Meade masturbating were also included in the video.
When Max Wiley, the boyfriend of Sally's mother, became concerned about the length of time Meade had been gone with Sally, he began searching for them along the tracks. When Wiley found them, Sally was fully clothed, but Meade's shirt was draped over his shoulder along with a vinyl lunchbox. Wiley demanded to know what was taking place, to which Sally and Meade responded that nothing was happening.
Wiley then asked what was in the lunchbox. Meade evaded, answering the question in a vague manner, which prompted Wiley to demand to see the lunchbox. When Meade finally gave Wiley the,lunchbox, he found a video camera inside. After numerous attempts to view the recording on the camera, Wiley was finally successful. He viewed the video only long enough to see the graphic and perverse nature of the film. The police were contacted, and Meade was arrested later that evening.
Meade was indicted for (1) use of a minor in a sexual performance, (2) possession of matter portraying a sexual performance by a minor, (3) first-degree sexual abuse, (4) first-degree wanton endangerment, (5) promoting a sexual performance by a minor, (6) possession of a firearm by a convicted felon, (7) failure to comply with sex-offender registration, and (8) being a second-degree PFO.
The possession of a firearm by a convicted felon and failure to comply with sex-offender registration counts were severed before trial at Meade's request. The charge of promoting a sexual performance by a minor was dismissed before trial on the Commonwealth's motion because, in the Commonwealth's estimation, conviction for promoting a minor's sexual performance and use of a minor in a sexual performance would constitute double jeopardy.
These counts are not relevant to this appeal and are not discussed any further.
See Clark v. Commonwealth, 267 S.W.3d 668, 677-78 (Ky. 2008) (holding convictions for use of a minor in a sexual performance and promoting a sexual performance by a minor constitute double jeopardy).
The jury convicted Meade on all counts presented during the guilt phase and found him to be a second-degree PFO during the sentencing phase. Following this determination, the jury recommended Meade be sentenced as follows: forty years for use of a minor in a sexual performance, sixteen years for first-degree sexual abuse, seven years for possession of matter portraying a sexual performance by a minor, and seven years for first-degree wanton endangerment. The jury also recommended the sentences be served consecutively for a total of seventy years' imprisonment.
The Commonwealth concedes that the trial court's failure to instruct the jury to assign sentences before determining Meade's status as a PFO was inconsistent with our precedent in Commonwealth v. Reneer, 734 S.W.2d 794, 798 (Ky. 1987). This error is not raised, nor is it acknowledged by Meade, so we consider it to be waived.
At the sentencing hearing, the trial court expressed its intention to accept the jury's recommendation. But this intention is not made explicit in the final judgment because a separate sentence is not listed for each individual conviction. Instead, the judgment contains only the sum of the jury's recommendation—a term of imprisonment for seventy years.
II. ANALYSIS.
A. Meade's Convictions for Use of a Minor in a Sexual Performance and Possession of Matter Portraying a Sexual Performance by a Minor do not Constitute Double Jeopardy.
Meade claims that convictions for use of a minor in a sexual performance and possession of matter portraying a sexual performance by a child categorically violate the double-jeopardy bar. He argues that in order to have used Sally in a sexual performance, he must have also possessed the resulting media portraying the sexual act. This issue is unpreserved, but we review it because "the constitutional protection against double jeopardy is not waived by failing to object at the trial level."
Walden v. Commonwealth, 805 S.W.2d 102, 105 (Ky. 1991), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996).
Section Thirteen of the Kentucky Constitution holds that "[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb[.]" To determine if a person has been in jeopardy for the same offence twice, we apply the test as announced in Blockburger v. United States. Under Blockburger, "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Accordingly, to resolve Meade's double-jeopardy claim we are required to compare the statutes under which he was convicted and the jury instructions used to reach those convictions.
Ky. Const. § 13; accord U.S. CONST, amend. V; KRS 505.020.
284 U.S. 299 (1932); see also Beaty v. Commonwealth, 125 S.W.3d 196, 211 (Ky. 2003) ("Our rule against multiple prosecutions for the same course of conduct parallels the federal rule announced in Blockburger v. United States").
Blockburger, 284 U.S. at 304.
Kentucky Revised Statutes (KRS) 531.310—the use of a child in a sexual performance statute—is violated when an individual (1) employs, consents to, authorizes, or induces (2) a minor (3) to engage in a sexual performance. To ensure these elements were properly proved, the trial court gave the following jury instruction:
You will find the Defendant guilty of Use of a Minor in a Sexual Performance under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about May 14, 2010[,] and before the finding of the Indictment herein, he knowingly employed, authorized or induced [Sally] to engage in a sexual performance;
AND
B. That [Sally] was less than 16 years of age.
Because this instruction contains terms with technical definitions that may differ from the jury's ordinary usage, the court included additional definitions in its instructions. The court defined sexual performance as "any performance or part thereof which includes sexual conduct by a minor." In turn, the court defined performance as "any play, motion picture, photograph, or dance. Performance also means any other visual representation exhibited before an audience." The last relevant definition provided by the court is audience, which the court stated "may consist of one person, e.g., the defendant."
To convict Meade of possession of matter portraying a sexual performance by a minor, the Commonwealth alleged he possessed the recording of Sally's sexual acts while knowing the nature of the recording's content. To prove a violation of KRS 531.335, the Commonwealth must show that Meade (1) knowingly possessed (2) any matter that visually depicts an actual sexual performance by a minor (3) while having knowledge of its content and character as a sexual performance by a minor. The jury instruction the trial court gave regarding this charge was:
You will find the Defendant guilty of Possession of Matter Portraying a Sexual Performance by a Minor under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about May 14, 2010, and, before the finding of the indictment herein, he knowingly had in his possession or control any matter visually depicting an actual sexual performance by a minor;
AND
B. That when he did so, he had knowledge of the content and character of the matter and knew that the person engaged in the sexual performance was a minor.
Meade argues his conviction for use of a minor in a sexual performance could have only been found to be a "performance" on the basis of his recording of Sally's sexual actions. Under Meade's logic, the possession of the video portraying a sexual performance by a minor was an "indivisible component of filming a sexual performance." On this basis, Meade alleges the possession of a video of a sexual performance by a minor is part-and-parcel of the use of a minor in a sexual performance and conviction for both crimes constitutes double jeopardy. Meade draws an analogy to drug cases in support of this argument. He cites Beaty, in which we held that a double-jeopardy violation arises when a defendant is convicted of manufacturing and possessing the same quantity of methamphetamine.
See id.
The Commonwealth, on the other hand, argues that a sexual performance by a minor need not be recorded or reduced to a tangible form of media for a conviction for use of a minor in a sexual performance to lie. The Commonwealth cites the definition of performance included in the jury instructions as including any "visual representation before an audience" and stresses that an "audience may consist of one person, e.g., the defendant."
See also Woodard v. Commonwealth, 219 S.W.3d 723, 727 (Ky. 2007) ("Clearly, common sense dictates that there can be an audience of one . . . ."), overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 2010).
A review of the relevant statutes, jury instructions, and definitions illustrates that convictions for use of a minor in a sexual performance and possession of matter portraying a sexual performance by a minor do not present a categorical violation of double jeopardy. Both crimes require proof of a fact the other does not. The use of a minor in a sexual performance statute requires the jury find the defendant "employ[ed], consent[ed] to, authoriz[ed], or induc[ed]" a minor to engage in a sexual performance, while the possession of matter portraying a sexual performance by a minor statute requires proof that the defendant possessed matter visually depicting the sexual act of a minor. The facts necessary to prove these elements are unarguably independent. An individual can induce a child to engage in a sexual performance without creating any lasting media or possessing any record portraying the event, and an individual may knowingly possess a depiction of a minor engaging in a sexual performance without playing any role in the creation of the media. We, therefore, reject the categorical double-jeopardy bar alleged by Meade.
We can envision, however, a situation in which conviction for both these crimes may violate double jeopardy. Namely, as Meade alleges, if the use conviction may only be grounded in the defendant's creation of some tangible form of media and not the defendant's role as the "audience," then the reasoning announced in Beaty is applicable to the possession conviction. Under that scenario, the possession of the resulting sexually explicit media portraying a minor would be concomitant with the use of a minor in a sexual performance.
That factual scenario is not present here. The facts make clear that Meade was not simply recording Sally's performance. He was also the intended audience of the live performance as evidenced by the jury's conclusion that he was masturbating while viewing Sally's sexual conduct. This passive observation role as an audience member was the basis for Meade's use of a minor in a sexual performance conviction, not his recording of the performance. That is a separate evil prohibited by a separate statute.
See Woodard, 219 S.W.3d at 728 ("Use of a Minor in a Sexual Performance requires passive observation.").
Application of the Blockburger test dictates we conclude that Meade was rightly convicted of two distinct crimes, each of which required proof of an independent fact and addressed a separate evil. Meade's first evil being the inducement of a child to perform sexually explicit actions for his present pleasure, and the second being the retention of a video record of that performance for further exploitation of his victim and later gratification. The legislature was well within its authority to label these activities as separate crimes, and we conclude that Meade's convictions for use of a minor in a sexual performance and possession of matter portraying a sexual performance by a minor do not violate double jeopardy.
B. Meade's Convictions for Use of a Minor in a Sexual Performance and First-Degree Sexual Abuse do not Constitute Double Jeopardy.
Meade makes a similar double-jeopardy argument regarding his convictions for use of a minor in a sexual performance and first-degree sexual abuse. He alleges that because his act of masturbation was included in the same video recording, it became part of Sally's sexual performance; thus, precluding conviction for an independent crime. This issue is also unpreserved, but we nonetheless review it applying the principles of double-jeopardy jurisprudence outlined above.
Meade was convicted of first-degree sexual abuse based on his act of masturbation in Sally's presence. Under this theory, KRS 510.110 requires the Commonwealth prove that the defendant (1) engaged in masturbation (2) in the presence of a minor he knew was present (3) and was at least twenty-one years old. The court instructed the jury regarding this count as follows:
You will find the Defendant guilty of First1Degree Sexual Abuse under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about May 14, 2010[,] and before the finding of the Indictment herein:
The defendant masturbated in the presence of [Sally,] and he knew or had reason to know [Sally] was present;
AND
(1) The defendant knew [Sally] was then less than twelve (12) years old;
AND
(2) [Sally] could see and hear the defendant masturbate, if he did so.
AND
B. That at the time of such occurrence, [Sally] was less than twelve (12) [years] of age;
AND
C. That at the time of such occurrence, defendant was 21 years of age or older.
The inclusion of this instruction in this opinion no way constitutes our endorsement of its language. Some elements of this instruction, such as the element requiring the defendant know the age of the minor-victim do not appear to be grounded in the statute or case law. We do not address the efficacy of this instruction, however, because neither party raises the issue and we do not feel there was significant prejudice to merit raising the issue on our own motion. See 1 WILLIAM S. COOPER & DONALD P. CETRULO, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) §§ 4.47-4.50 (2006) (providing suggested jury instructions for first-degree sexual abuse, none of which require the defendant know the age of the victim).
The inclusion of this instruction in this opinion no way constitutes our endorsement of its language. Some elements of this instruction, such as the element requiring the defendant know the age of the minor-victim do not appear to be grounded in the statute or case law. We do not address the efficacy of this instruction, however, because neither party raises the issue and we do not feel there was significant prejudice to merit raising the issue on our own motion. See 1 WILLIAM S. COOPER & DONALD P. CETRULO, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) §§ 4.47-4.50 (2006) (providing suggested jury instructions for first-degree sexual abuse, none of which require the defendant know the age of the victim).
The elements of use of a minor in a sexual performance and the jury instructions provided are, of course, the same as outlined above. An additional definition provided to the jury does now become relevant. The trial court provided the following definition of sexual conduct by a minor.
This definition is relevant because this phrase is included in the definition of sexual performance, reproduced above.
Sexual Conduct by a Minor means:
(a) Acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
(b) Physical contact with, or a willful or intentional exhibition of the genitals;
(c) Flagellation or excretion for the purpose of sexual stimulation or gratification;
OR
(d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in a matter of a private, family nature, not intended for distribution outside the family.
Meade focuses on this definition's use of the word masturbate in arguing that his act of masturbation was incorporated into the sexual performance included in his use of a minor in a sexual performance conviction. Thus, he argues, double-jeopardy principles prevent him from being twice convicted for the sexual performance that took place on the train tracks. That is not the case. Meade's argument fails to mention the deciding factor in double-jeopardy cases—whether each crime requires proof of an element the other does not. When viewing Meade's convictions through this lens, it is manifest they pass the Blockbuster test and are aimed at preventing specific and distinct conduct.
The Commonwealth's theory of first-degree sexual abuse requires proof that Meade masturbated while use of a minor in a sexual performance requires proof that Sally's body was exploited. These independent elements demonstrate the difference in the conduct meant to be prohibited by each statute. The use-of-a-minor-in-a-sexual-performance statute is aimed at preventing children from being coerced, tricked, or forced to exhibit their bodies in a sexual manner. The definition of sexual conduct by a minor makes this clear. All of the acts included in that definition focus on the child's actions, the child's body, and how the child is being sexually exploited.
On the other hand, the first-degree-sexual-abuse statute is aimed at preventing children from being subjected to the graphic scene of an adult masturbating in their presence. In reaching that end, the statute rightly focuses on the illicit acts of the adult while only requiring that the child be present.
Based on this analysis, it is indisputable that Meade could have been convicted of the use of a minor in a sexual performance without his masturbating and, likewise, could have been convicted of first-degree sexual abuse without his inducing Sally to engage in a sexual performance. On this basis, we cannot find that Meade's act of masturbation constituted part of the sexual performance underlying his conviction for use of a minor in a sexual performance. Although both of Meade's criminal actions took place during the same series of events and involved the same victim, they represent distinct crimes and, therefore, do not constitute double jeopardy.
C. The Trial Court's Decision to Allow Sally to Testify via Closed-Circuit Television did not Impermissibly Deny Meade the Right to Confront his Accuser.
Meade next contends he was denied his constitutional right to confront witnesses against him when the trial court allowed Sally to testify from a remote location outside Meade's presence under the framework established in KRS 421.350. He contends there was not sufficient evidence to allow the trial court to conclude there was a "compelling need" to allow Sally to testify outside Meade's presence in order to protect her welfare and prevent her being traumatized. The issue was preserved by Meade's pretrial opposition to the Commonwealth's KRS 421.350 motion.
Both the federal and Kentucky constitutions grant criminal defendants the right to confront witnesses against them face-to-face. Statutory schemes designed to protect the general welfare of children who would be harmed by testifying in the presence of criminal defendants are an exception to this Constitutional guarantee. The Supreme Court recognized a state's public-policy interest in protecting children who are victims or witnesses of crimes— especially those crimes that are sexual in nature—may overcome a defendant's right to confront witnesses against him. The General Assembly recognized this public-policy interest contemplated by the Supreme Court in Craig and long ago codified KRS 421.350, which provides standards for when it is appropriate for a child to testify outside of the defendant's presence and a mechanism for implementing such testimony.
U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."); Ky. Const. § 11 ("In all criminal prosecutions the accused has the right . . . to meet the witnesses face to face . . . .).
See Maryland v. Craig, 497 U.S. 836 (1990).
KRS 421.350 operates to protect children under the age of twelve who are victims of or witnesses to sexual crimes when testifying at a criminal trial. If the trial court finds that there is a "compelling need," the child may be permitted to testify outside of the courtroom via closed-circuit television. Compelling need is statutorily defined as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." The determination of "compelling need," a prerequisite to applicability of KRS 421.350, does not mandate the court allow a child to testify outside the defendant's presence. Instead, the decision is left to the discretion of the trial court. Because of the inherent discretionary authority vested in trial courts pertaining to the presentation of evidence, the trial court's decision to allow Sally to testify outside of Meade's presence will only be reversed upon a finding of abuse of discretion.
Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998) ("The trial court has broad discretion in this area. The 'presentation of evidence' is within the sound discretion of the trial judge, and will not be disturbed absent abuse of discretion.").
Meade argues that there was not sufficient evidence to allow the trial court to conclude there was a "compelling need" for Sally to testify outside Meade's presence. This argument has no basis in the record. The trial court held an evidentiary hearing regarding the Commonwealth's motion and heard testimony from Sally and her mother. The testimony given at the hearing chronicled Sally's emotional struggles after she was victimized, instances of medical and emotional treatment predicated upon Sally's worries about her impending trial testimony, and Sally's recurring nightmares following the incident.
Meade's argument on this topic mainly asserts principles announced in the Supreme Court's decision in Craig, 497 U.S. 836, which sets forth the Constitutional requirements for allowing children to testify outside the defendant's presence. Because Meade never alleges that the requirements and procedures of KRS 432.350 unconstitutionally violate Craig and he has not properly notified the Attorney General of a constitutional challenge to its validity as required by KRS 418.075(2), we take his arguments couched in the language of Craig in the only light that they are properly reviewable and assume his intended argument is that the "compelling need" element of KRS 421.350 was not met. In fact, at the hearing, Meade's only argument against application of KRS 421.350 was the lack of a compelling need.
Sally and her mother both testified that Sally feared Meade. Sally explained this fear was grounded in Meade's threats to kill her family if she told anyone about what happened with him. After acknowledging how important her testimony at trial would be, Sally admitted she would not be able to testify in Meade's presence. Sally's mother echoed that sentiment and opined that Sally would be unable to express her testimony in front of Meade and that requiring her to do so would be detrimental to Sally.
After taking the evidence into consideration and allowing time for review of Sally's psychological report, the trial court reached the following conclusion:
C/W's Motion to allow victim to testify outside Defs presence Sustained. Ct. finds there is a compelling need to allow child to testify outside the Defendant's presence based upon the testimony of both the mother and the child from the Ct.'s previous hrg on this matter. Child stated she had been threatened by the Defendant not to tell about the sexual conduct and thus was afraid of him and would be unable to testify if he was present.
This finding was handwritten into the record and is reproduced here in its original form, including all shorthand and abbreviations.
This finding was handwritten into the record and is reproduced here in its original form, including all shorthand and abbreviations.
There is nothing in the record to undermine the trial court's conclusion regarding Sally's compelling need to testify outside Meade's presence. Meade does not present any evidence that would favor a conclusion that Sally would have been able to testify in his presence. Meade instead baldly alleges the Commonwealth did not present adequate evidence to allow the court to make a finding of "compelling need." The difficulty of proving the absence of a fact aside, Meade does not even attempt to put forth any evidence to show that the trial court abused its discretion in allowing Sally to testify outside Meade's presence.
Meade also makes what can only be labeled as a disingenuous argument by asserting that because Sally did not testify in Meade's presence at the evidentiary hearing, the court cannot properly determine whether she will be traumatized by testifying in Meade's presence. Meade's counsel made no objection to Meade's leaving the courtroom to allow Sally to testify at the evidentiary hearing. In fact, he helped arrange accommodations whereby Meade was able to watch the testimony via closed-circuit television in order to "preserve all the constitutional issues." Beyond Meade's waiver of this claim, requiring a victim to undergo the trauma of testifying in front of the defendant in order to show she cannot testify in the presence of the defendant is illogical and clearly not a requirement of KRS 421.350. Forcing a victim to testify in front of the defendant so that the trial court can gauge the victim's trauma associated with being in the presence of the defendant is unnecessary and contrary to the purpose of creating a framework for allowing child victims to testify outside the alleged perpetrator's presence.
Meade also argues that Sally's in-court identification of him conclusively shows there was no compelling need for Sally to testify outside the courtroom. We do not find this argument persuasive. A child's ability to provide an in-court identification is not conclusive proof of the child's ability to testify in the presence of her attacker. The Supreme Court has implicitly approved this procedure because the statutory scheme it upheld in Craig provided for in-court identification to supplement the child's outside-of-court testimony. The Michigan Court of Appeals has also addressed this issue and concluded that a child's ability "to simply identify defendant in a brief encounter does not mean that [she] would be able to effectively and understandably testify about the circumstances of the abuse if required to do so in a face-to-face confrontation with defendant." We agree with the reasoning of the Michigan court and find that an in-court identification does not prove the absence of a compelling need for a child to testify outside the presence of a defendant.
People v. Pesquera, 625 N.W.2d 407, 413 (Mich.App. 2001).
So we find that the trial court did not abuse its discretion in granting the Commonwealth's motion to allow Sally to testify outside the courtroom pursuant to KRS 421.350. Meade's right to confront witnesses against him was not violated.
D. The Trial Court did not Err in Sentencing Meade to Serve his Sentences Consecutively for a Total of Seventy Years' Imprisonment, but the Judgment Contains a Clerical Error Because it Fails to Fix a Certain Sentence for Each Conviction.
Meade's last allegation of error deals with the viability of his sentence and the judgment that orders it. He first argues that the maximum aggregation of consecutive sentences is fifty years; therefore, his seventy years' consecutive sentences violate KRS 532.110. Secondly, he asserts that the trial court erred in failing to fix explicitly a sentence for each individual conviction in the final judgment.
1. The Maximum Length of Consecutive Sentences Available Under Kentucky Law is Seventy Years.
Trial courts are granted discretion to determine whether defendants convicted of multiple offenses are to serve their sentences consecutively or concurrently. Along with granting courts the ability to run sentences consecutively, KRS 532.110 also provides limitations on the aggregate length of consecutive sentences. Specifically, KRS 532.110(1)(c) provides:
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years.
KRS 532.080 is the persistent felony offender statute; but the reference made to it in KRS 532.110 is just that, a reference, and does not require a defendant to be found a PFO of any degree in order to have his aggregate consecutive sentence limited by that statute. Meade concedes that KRS 532.080(6)(a) is the appropriate section, reference to which his total aggregate sentence should be made. That section provides that "[i]f the offense for which he presently stands convicted is a Class A or Class B felony, . . . [he] shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than twenty (20) years nor more than fifty (50) years, or life imprisonment[.]"
Castle v. Commonwealth, 411 S.W.3d 754, 757 (Ky. 2013).
Based on these statutory provisions, Meade argues the longest "extended term" authorized by KRS 532.080(6)(a) is fifty years' imprisonment. Based on this premise, he concludes that the maximum aggregation of consecutive sentences that he is subject to is fifty years. We disagree.
We recently decided this exact issue in Castle v. Commonwealth. In Castle, we held that "the maximum 'extended term' sentence available under KRS 532.080(6)(a) for an offender convicted of a Class A or B felony is life imprisonment." We further concluded that "the only limitation on the aggregate length of consecutive sentences for defendants whose highest class of crime is a Class A or B felony is the seventy-year cap found in KRS 532.110(1)(c)."
411 S.W.3d 754 (Ky. 2013).
Id. at 761.
Id.
The highest class of crime that Meade was convicted of was a Class B felony. So the only limitation on the aggregate length of his consecutive sentences is the seventy-year cap in KRS 532.110(1)(c). Because Meade's consecutive sentences did not exceed this seventy-year cap, we affirm the trial court's decision to order his sentences run consecutively for a total of seventy years.
See KRS 531.310(2)(b).
See Castle, 411 S.W.3d at 761.
2. The Trial Court's Failure to Delineate Meade's Sentence on an Offense-by-Offense Basis was Clerical Error.
In what seems to be an afterthought, Meade also argues that the trial court erred in failing adequately to "fix" his sentences in the final judgment. He argues the court failed to outline the final sentence for each conviction, which violates KRS 532.030.
KRS 532.030 provides that "[w]hen a person is convicted[,] . . . he shall have his punishment fixed . . . ." Expanding on that statutory principle in Machniak, we concluded that our "statutes mandate that trial courts fix a defendant's sentence at the time of conviction, i.e., fix a term certain—a specific number of years for each offense—and then determine whether that sentence or those sentences must run consecutively or concurrently with each other or other outstanding judgments."
KRS 532,030; see also Machniak v. Commonwealth, 351 S.W.3d 648, 656 (Ky. 2011) ("The term 'fixed,' as utilized in KRS 532.030, means 'to put into stable or unalterable form' and 'to establish definitely."') (internal citation omitted).
Id. at 657.
A simple reading of the judgment in issue shows this principle was violated. In the portion of the judgment listing the sentence to be imposed, the sentence is simply stated as "(70) seventy years." Because of this error, we must vacate the sentence in the judgment.
This error does not warrant a new sentencing hearing. A review of the videotape of the sentencing hearing makes clear that the trial court intended to adopt fully the recommendation of the jury in fixing Meade's sentence. Wholesale adoption of the jury's recommendation is also the only path the trial court could have taken to reach a permissible aggregate sentence of seventy years. Meade's brief explicitly acknowledges this was the intent of the trial court, and his argument regarding the maximum aggregate sentence assumes the trial court's intent to adopt the jury's recommended sentences and run them consecutively.
We have previously held that "[t]he failure to accurately reduce to writing the trial court's intended sentence, a sentence which was evident from a review of the videotaped record and made known to both parties at the sentencing hearing, was a clerical error[.]" Because clerical errors, by definition, are not the result of judicial reasoning, we do not believe remand for additional substantive proceedings is necessary to correct the trial court's failure to fix Meade's sentences. We opt, instead, to order implementation of the intent of the trial court expressed at the sentencing hearing, which would have been given effect in the judgment absent clerical error. Accordingly, we remand for entry of judgment consistent with the principles expressed in Machniak and the intent expressed by the trial court at the sentencing hearing.
Id. at 654.
See Cardwell v. Commonwealth, 12 S.W.3d 672, 675 (Ky. 2000) ("The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.") (citing Bozza v. United States, 330 U.S. 160 (1947)).
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III. CONCLUSION.
For the foregoing reasons, we affirm Meade's convictions and the aggregate length of his sentence. We also conclude the trial court erred in failing to fix Meade's sentence for each offense in the final judgment. But the error was clerical, and we remand for entry of an amended judgment correcting the sentencing error.
All sitting. All concur. COUNSEL FOR APPELLANT: Katie L. Benward
Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General