Opinion
2012-SC-000587-MR
04-17-2014
JEFFERY BURKS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Shannon Renee Dupree Assistant Public Advocate Department of Public Advocacy COUNSEL FOR APPELLEE: Jack Conway Attorney General James Daryl Havey Assistant Attorney General Office of the 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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED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 HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
NO. 10-CR-00001
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Jeffrey Wayne Burks, was convicted of five counts of sexual abuse in the first degree (victim under twelve years of age), two counts of sexual abuse in the first degree (victim under sixteen years of age), three counts of sodomy in the first degree (victim under twelve years of age), and two counts of sodomy in the second degree. For these convictions, Appellant was sentenced to twenty years' imprisonment and now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that: 1) the jury instructions did not protect him against a non-unanimous verdict or double jeopardy; 2) he was substantially prejudiced when the trial court overruled his motion for a directed verdict; 3) he was substantially prejudiced by the lack of information in the indictment; 4) his convictions violated his due process rights against double jeopardy; and 5) he was denied a fair trial when portions of the victims' testimony were played back during closing arguments. For the reasons that follow, we affirm the trial court.
I. BACKGROUND
Appellant and his wife, Tina, married when they were very young, but Tina was killed in a car accident when she was eighteen-years old. Appellant remained close with his wife's brother who had three young sons, John, Dave, and Henry. The three boys often spent the night with Appellant where they typically slept on the couch. When John, the oldest of the three boys, was thirteen-years old he spent the summer with Appellant, and later claimed that late one night Appellant began rubbing his penis through his gym shorts. John also said that Appellant attempted to put his hands inside his shorts, but that he turned over to prevent Appellant from doing so. Neither Appellant nor John ever discussed the event. John reported three similar events which are not at issue in this appeal.
The Court will use pseudonyms in order to protect the privacy of the young victims.
Dave, the middle brother, testified about a single incident of unlawful sexual touching that occurred when he was riding behind Appellant on a four-wheeler. At one point, Appellant reached behind him and touched his penis through his pants. At the time Appellant told Dave it was an accident and Dave believed him until he learned of the other incidents involving his brothers.
Henry, the youngest of the three brothers, testified that Appellant subjected him to repeated acts of sexual abuse and sodomy, including more than ten encounters at Appellant's "old" house, and at least ten similar acts at his "new" house. Henry claimed that Appellant first touched his penis when he was nine-years old while he was sleeping on Appellant's couch. Henry described a number of specific incidents. Henry testified that on one occasion, Appellant awakened him in the middle of the night and then began rubbing his penis through his clothing. Appellant eventually moved his hand inside to touch his penis. Henry tried to turn his back, but Appellant forcefully rolled him back over and continued to fondle him. The same thing happened again a day or two later.
The "old" house refers to Appellant's house on State Route 2181.
The "new" house refers to a trailer that Appellant purchased on South Lane directly across the street from where the three boys lived with their father.
Henry testified that after five or six instances of sexual abuse (unlawful touching) had occurred, Appellant began to sodomize him. The first instance of sodomy occurred on the couch at Appellant's house. Henry said that Appellant began fondling him as before, but then moved Henry's pants down and started performing oral sex on him. Henry said that he tried to roll over, but was afraid to say anything for fear Appellant might hurt him.
Appellant was ultimately indicted by a Hancock County Grand Jury on 101 counts of sexual abuse and sodomy, but on the morning of the trial, the number of charges was reduced to twenty-four. Appellant was acquitted on twelve charges, but he was convicted of five counts of sexual abuse in the first degree (victim under twelve); two counts of sexual abuse in the first degree (victim under sixteen); three counts of sodomy in the first degree (victim under twelve); and two counts of sodomy in the second degree. For these convictions Appellant received twenty years' imprisonment, and it is from those convictions that he now appeals.
II. ANALYSIS
A. Jury Instructions Did Not Violate Appellants Right to a Unanimous Verdict or Double Jeopardy
Appellant first argues that Jury Instructions 1 through 7 did not adequately differentiate among the various charges, and therefore failed to protect him against a non-unanimous verdict or double jeopardy.
With respect to the sexual abuse testimony of Henry, the jury was instructed under Instruction 1 as follows:
You will find the Defendant, Jeffrey Burks, guilty of Sexual Abuse in the First Degree - Victim Under 12 under this Instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:Jury Instruction 2 was identical to that of Instruction 1, except that it pertained to the second incidence of sexual abuse, and read "second time" instead of first.
1. That in this county on or about August 22, 2006 through August 22, 2007, and before the finding of the indictment herein, the Defendant subjected [Henry] to sexual contact when he rubbed [Henry's] penis for the first time while [Henry] was on the large couch at the Defendant's residence located at 11780 State Route 2181, Hawesville, KY 42348; AND
2. That at the time of such contact, [Henry] was less than 12 years of age. (emphasis added).
With respect to Henry's testimony concerning the acts of sodomy Appellant committed against him, the jury received Instruction 3, which read as follows:
You will find the Defendant, Jeffrey Burks, guilt [sic] of Sodomy in the First Degree - Victim Under 12 under this Instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:Instructions 5 and 7 were identical to 3, except that they contained the language "the second time" and "the last time." Instruction 7 also contained the phrase "old" house instead of listing the actual address of Appellant's residence.
1. That in this county on or about August 22, 2006 through June 1, 2009, and before the finding of the indictment herein, the Defendant engaged in deviate sexual intercourse with [Henry] when the Defendant put his mouth on [Henry's] penis for the first time while [Henry] lay on the large couch located at the Defendant's residence at 11780 State Route 2181, Hawesville, KY 42348;
2. That at the time of such intercourse, [Henry] was less than 12 years of age.
(emphasis added).
The jury ultimately convicted Appellant of five counts of sexual abuse and three counts of sodomy based upon the aforementioned instructions. Appellant argues on appeal that the instructions referenced above, with the only differentiations being in "ordinal" phrases, violated both his due process rights to a unanimous verdict and the Double Jeopardy Clause of the Fifth Amendment.
This Court has held that "[w]hether the issue is viewed as one of insufficient evidence, or double jeopardy, or denial of a unanimous verdict, must introduce evidence sufficient to prove each offense and to differentiate each count from the others, and the jury must be separately instructed on each charged offense." Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (citing Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002)).
In Miller, this Court found reversible error when a jury received identically worded instructions for a count of third-degree rape and a count of sodomy. Id. Given that the two instructions were identical, with no differentiating factors, we held that "it is now settled that a trial court errs in a case involving multiple charges if its instructions to the jury fail to factually differentiate between the separate offenses according to the evidence." Miller, 283 S.W.3d at 695 (citing Combs v. Commonwealth, 198 S.W.3d 574, 580 (Ky. 2006)).
However, that is not the situation in the present case. Here, the instructions are not identically worded because they do differentiate among each particular count by referring to the "first," "second," and "last" time that the abuse occurred. Even if the differentiating factor is simply the sequential order of the events as testified to by the victim, a mere difference in an "ordinal" phrase, it is sufficient to distinguish the counts and link each conviction to the specific testimony that supports it. Banks v. Commonwealth, 313 S.W.3d 567, 573 (Ky. 2010) ("So long as the instruction for each count enables the jury to identify the instruction with a specific crime established by the evidence and avoids the likelihood of confusion with other offenses presented against defendant in the same trial, then the instructions are adequately differentiated.").
Therefore, the simple distinction of events by the first, second, or last times is a sufficient descriptor to indicate separate instances where the witness's testimony has indicated a specific memory of each criminal incident. Obviously, the instructions should incorporate the most specific detail available to distinguish one allegation from another, so as to enable the jury to unambiguously indicate its verdicts and to enable the courts to know with certainty which specific event resulted in each of the jury's guilty verdicts. We are satisfied that the trial court did so in this case.
B. Appellant Was Not Entitled to a Directed Verdict
Appellant next argues that he was substantially prejudiced when the trial court denied his motion for a directed verdict on various counts of sodomy and sexual abuse involving Henry. We will reverse the trial court's denial of a motion for directed verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). (emphasis added). Our review is confined to the proof at trial and the statutory elements of the alleged offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011).
The jury acquitted Appellant of the charges relating to John and Dave, rendering moot Appellant's motions for directed verdicts on those charges.
Appellant alleges that he was entitled to a directed verdict regarding five of the sexual abuse counts and three of the sodomy counts pertaining to Henry. Appellant argues that regarding these specific counts Henry's testimony was vague and essentially the same for all of the offenses that occurred at the "old" house.
As noted above, a reversal of a trial court's denial of a directed verdict is only warranted if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. The testimony of children, such as Henry, Dave, and John, is always subject to the limitations imposed by the maturity, educational development, and intellect commensurate with the age of the witness. See Farler v Commonwealth, 880 S.W.2d 882, 886 (Ky. App. 1994) ("It would be wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the [sexual] abuse occurred.")
Moreover, while Henry apparently could not provide the specific dates of the offenses committed against him, he provided sufficient information to establish the commission of the crimes such that a finding of guilt upon his testimony cannot be decried as being "clearly unreasonable." See Stringer v. Commonwealth, 956 S.W.2d 883, 885-86 (Ky. 1997) ("In a felony case, the failure to prove the specific date of the offense is of no consequence unless time is a material ingredient of the offense."). Therefore, we are satisfied that the trial court properly denied Appellant's motion for directed verdicts of acquittal.
C. Appellant Was Sufficiently Informed of the Charges Against Him
Appellant next argues that he was denied a fair opportunity to defend himself against the Commonwealth's allegations given that the indictment lacked sufficient information and his motion for a bill of particulars was denied. Furthermore, Appellant alleges that he was substantially prejudiced by the reading of the amended twenty-four count indictment, given that the Commonwealth could only meet its burden of proof on five to seven of those counts.
Appellant was indicted on July 2, 2010, and was arraigned on that same day. His trial was originally set for February 7, 2011, but was repeatedly postponed. Eventually, it began on Monday, June 11, 2012. On the Friday before the trial was to begin, Appellant's attorney belatedly filed a motion for a bill of particulars, and noticed it to be heard at 9:00 a.m. on the day the trial was to begin. Appellant argued that the indictment did not specify which victim related to any of the counts, and requested dates and specific times for each allegation.
Over the course of the weekend, the Commonwealth drafted an amended indictment which reduced the number of counts to twenty-four, and identified the victim of each count by initials. On the morning of the trial, the parties addressed the motion and the amended indictment with the judge. Appellant's attorney argued that the Commonwealth could only meet its burden of proof for five to seven of the counts, and thus, it would be prejudicial to read the twenty-four count indictment to the jury. The Commonwealth argued that the amended indictment represented those counts that it would be able to address with specificity. The trial court ultimately denied Appellant's motion for a bill of particulars, and allowed the twenty-four count indictment to be read. 1 . Bill of Particulars
"If a defendant needs more information than what is included in the indictment in order to prepare his defense, he may file a motion for a bill of particulars." Dunn v. Commonwealth, 360 S.W.3d 751, 760 (Ky. 2012) (citing RCr 6.22; Parker v. Commonwealth, 291 S.W.3d 647, 656 (Ky. 2009)). However, an untimely demand for a ruling on a motion for a bill of particulars or a failure to object to such a ruling constitutes a waiver of the right to raise the issue on appeal. Id. (citing Hampton v. Commonwealth, 666 S.W.2d 737, 740 (Ky. 1984)).
If the indictment did not adequately apprise Appellant of the particulars of the charges against him, he had over two years prior to trial to ask for more information. The Commonwealth provided Appellant's attorney full access to information throughout the discovery process. Appellant's filing of the motion for a bill of particulars on the last business day before the trial was to start is not a timely motion. For this reason we find that the right to appellate review was waived, and thus we decline to further address the issue. See Hampton, 666 S.W.2d 737 at 740.
2. Reading of Indictment
Appellant also argues that he was prejudiced when the amended twenty-four count indictment was read to the jury alleging that the Commonwealth could only meet its burden of proof on five to seven of those counts. However, RCr 9.42 states that "[t]he jury shall be sworn to try the issue after which the trial shall proceed in the following order, unless the court for special reasons otherwise directs: (a) The attorney for the Commonwealth shall state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it . . . ." Therefore, as we interpret this rule, the Commonwealth was required to inform the jury of exactly what Appellant was charged with, thus a full reading of the indictment was consistent with RCr 9.42 and, therefore, is permissible.
Furthermore, it is not up to the trial court to amend an indictment or weigh the evidence prior to trial. RCr 9.64 provides that "[t]he attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior, to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness." We held in Commonwealth v. Hicks, that it was not the province of a trial judge to evaluate evidence in advance in order to decide whether a trial should be held. 869 S.W.2d 35,37 (Ky. 1994). See also Commonwealth v. Isham, 98 S.W.3d 59, 62 (Ky. 2003). It was further held that the proper time for such an evaluation is upon motion for a directed verdict. Id.
For the aforementioned reason, we find that the trial court acted based upon sound legal principles, and thus, did not abuse its discretion when it allowed the reading of the amended indictment to the jury. A contrary ruling, allowing a reading of only the five to seven counts for which Appellant's attorney believed there was sufficient proof, would have amounted to the trial court making a ruling on the sufficiency of the evidence prior to trial, and thus amending the indictment, neither of which it has the power to do. See also Jarvis v. Commonwealth, 960 S.W.2d 466, 472 (Ky. 1998) ("We believe that whether to read the entire indictment during voir dire, while a motion to dismiss or sever one or more counts of the indictment is still pending, should likewise be left to the discretion of the trial court.").
D. Convictions for Both Sodomy and Sexual Abuse Do Not Constitute Double Jeopardy
Appellant next argues that his convictions for both sexual abuse and sodomy, based on a single series of events, violated his due process rights against double jeopardy. Appellant contends that any single act of first-degree sodomy inherently includes an act of first-degree sexual abuse, and therefore, the two separate crimes cannot be made out of the same act.
Under our present rule, however, "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." Fagan v. Commonwealth, 374 S.W.3d 274, 277 (Ky. 2012) (applying the test established by the United States Supreme Court in Blockburger v. United States, 284, 299 (1932)). The Blockburger test "focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence presented at trial." Id. So the test can be satisfied despite substantial overlap in the evidence used to prove each of the multiple offenses. Id.
In order to make that determination, we must compare the statutory elements of first-degree sexual abuse, KRS 510.110, with the statutory elements of sodomy in the first degree under KRS 510.070. A plain reading of the statutes demonstrates that sodomy requires some form of deviate sexual intercourse, whereas first-degree sexual abuse does not. Moreover, Appellant's convictions are predicated upon separate and distinct acts. The fact they may have occurred at or near the same time, does not eliminate their individual character. As the jury instructions and the corresponding verdicts clearly delineate, Appellant's crimes of sexual abuse consisted of rubbing Henry's penis, while his acts of sodomy consisted of deviate sexual intercourse. Appellant's convictions under both statutes do not constitute double jeopardy violations. Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008) (Conviction for sexual abuse was not lesser included offense of sodomy, and thus, separate convictions for each did not violate prohibition against double jeopardy, where defendant's touching of five-year-old child's genitals through his clothing, which formed basis for sexual abuse charge, was completely separate from act of sodomizing child).
KRS § 510.110 provides:
1) A person is guilty of sexual abuse in the first degree when:
a. He or she subjects another person to sexual contact by forcible compulsion; or
b. He or she subjects another person to sexual contact who is incapable of consent because he or she:
i. Is physically helpless;c. Being twenty-one (21) years old or more, he or she:
ii. Is less than twelve (12) years old; or
iii. Is mentally incapacitated; or
i. Subjects another person who is less than sixteen (16) years old to sexual contact;. . .
ii. Engages in masturbation in the presence of another person who is less than sixteen (16) years old and knows or has reason to know the other person is present; or
iii. Engages in masturbation while using the Internet, telephone, or other electronic communication device while communicating with a minor who the person knows is less than sixteen (16) years old, and the minor can see or hear the person masturbate;
KRS 510.070 provides:
1) A person is guilty of sodomy in the first degree when:
a. He engages is deviate sexual intercourse with another person by forcible compulsion; or
b. He engages in deviate sexual intercourse with another person who is incapable of consent because he:
i. Is physically helpless; or
ii. Is less than twelve (12) years old.
E. Playback of Victim Testimony Did Not Violate Appellant's Due Process Rights
Lastly, Appellant argues that he suffered substantial prejudice when the Commonwealth replayed portions of the victim's testimony during its closing argument. Appellant concedes that this issue is unpreserved, but asks that it be reviewed for palpable error. RCr 10.26; KRE 103. Under KRE 103(e), we review unpreserved claims of evidentiary error for palpable error. Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005). "A finding of palpable error must involve prejudice more egregious than that occurring in reversible error, . . . and the error must have resulted in 'manifest injustice."' Id. (citing Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997)).
During the Commonwealth's closing argument it replayed videotaped excerpts of the victims' testimony that pertained to each particular instruction given. Appellant alleges by replaying the videos, the Commonwealth was essentially bolstering its witnesses' testimony without the opportunity for cross-examination. Appellant does however concede that the Commonwealth would have been allowed to read back portions of the testimony, but nevertheless argues that by playing the video the jury was again allowed to see the victims, which he argues was unduly prejudicial.
In making his argument, Appellant relies on Fields v. Commonwealth, which found error in the Commonwealth being allowed to play a videotaped re-enactment of the criminal investigation during its opening statement, case-in-chief, and closing argument. 12 S.W.3d 275, 281-82 (Ky. 2000). However, what Appellant failed to take into account is that, in Fields, this Court found that the defendant was prejudiced by the repetition of inadmissible evidence regarding disputed facts. Id. In the present case, the testimony that was replayed was not in dispute. As Appellant concedes, the Commonwealth would have been allowed during its closing argument to read, or repeat, word-for-word the victim's testimony. We discern no heightened measure of prejudice simply because the recorded testimony was played for the jury to hear, rather than being read by the prosecutor. As noted in Fields, during "closing argument, attorneys are generally allowed to replay excerpts from recorded testimony, which is analogous to reading excerpts from the record." Id.
Appellant also concedes that "[i]t is a well settled principle that matters pertaining to closing arguments lie within the discretion of the trial court." Hawkins v. Rosenbloom, 17 S.W.3d 116, 120 (Ky. App. 1999) (Reed v. Craig, 244 S.W.2d 733 (Ky. 1951)). "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Webb, 387 S.W.3d 319 at 324 (citing Goodyear, 11 S.W.3d 575 at 581).
Appellant also concedes that "the rule in Kentucky is that counsel has wide latitude while making opening or closing statements." We do not find it arbitrary or unreasonable for the trial court to allow the presentation of such evidence during closing arguments. It is for this reason that it was not erroneous to allow the Commonwealth to simply replay portions of testimony that it would have been allowed to read in the first place.
However, even if we did find the Commonwealth's actions to be in error, that error certainly would not rise to the level of a "manifest injustice," as this was testimony the jury had already heard. Ernst, 160 S.W.3d 744 at 758. Thus, we find no palpable error.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial court. Thus, Appellant's convictions and sentence shall stand.
All sitting. All concur. COUNSEL FOR APPELLANT: Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE: Jack Conway
Attorney General
James Daryl Havey
Assistant Attorney General
Office of the Attorney General