Opinion
NO. 2017-CA-000359-MR
01-11-2019
RAYMOND J. HEMMERLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: David A. Lambertus Louisville, Kentucky BRIEF FOR APPELLEE: Andrew G. Beshear Attorney General Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Leilani K. M. Martin Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MEADE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 14-CR-00153 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: In 2016, a Meade County jury convicted Raymond J. Hemmerle, a Catholic priest, of indecent or immoral practices with another, child under fifteen years old in 1973. The Meade Circuit Court imposed a seven-year prison sentence. Hemmerle now appeals, asserting multiple errors relating to his motion for directed verdict, the jury instructions, and a double jeopardy violation. After reviewing the record, we find no error and consequently affirm.
Judge Debra Hembree Lambert authored this opinion prior to her accepting election to the Kentucky Supreme Court effective January 7, 2019.
Formerly Kentucky Revised Statute ("KRS") 435.105. The language of the statute relevant to this appeal is:
Any person of the age of seventeen (17) years or over who . . . indulges in any Indecent or immoral practices with the body or organs of any child under the age of fifteen (15) years . . . shall be guilty of a felony, punishable on conviction thereof by imprisonment in the penitentiary for not less than one (1) year not more than ten (10) years.
I. BACKGROUND
As a ten-year-old in 1973, M.N. attended summer camp at Camp Tall Trees. After exposure to poison ivy while playing in the woods, he developed an extensive skin rash. M.N. thereafter sought treatment from Hemmerle, a Catholic priest and the camp's director, who routinely treated campers with poison ivy reactions.
The name of M.N. is abbreviated to protect his privacy.
Further factual background is taken from the Commonwealth's proof, itself based on M.N.'s account of the events. Hemmerle, upon learning from another camper that M.N. had developed poison ivy, directed M.N. to come to his private cabin that night. There, he demanded M.N. completely disrobe and applied rubbing alcohol to M.N.'s rash with his bare hands. During the interaction, Hemmerle allegedly touched M.N.'s genitals for "maybe a minute or two" and then performed an oral sex act. [T.R. Vol. 1 176-179].
In 2001, M.N. sent a letter to Hemmerle detailing the allegations. M.N. copied Archbishop Tomas Kelly, as well as the principal of Trinity High School. In 2008, M.N. confronted Hemmerle about the incident, in person, at a church rectory in Bardstown, Kentucky.
Hemmerle also taught M.N. while a student at Trinity High School.
Hemmerle was later indicted on two counts of indecent or immoral practices against another. The first count stemmed from the allegation that Hemmerle fondled M.N.'s genitals. The second count stemmed from the oral sex allegation. Hemmerle filed a motion to merge these counts, claiming the allegations only supported one charge for an indecent or immoral act. The trial court denied that motion.
KRS 435.105 is the applicable statute in this case. It has since been repealed. Currently, acts constituting indecent or immoral practices against infants are codified in the provisions of Kentucky's penal code relating to sex abuse. See KRS 510.110 to 510.140.
Hemmerle's trial eventually took place in November of 2016. The prosecution presented its case consistent with M.N.'s account. The defense countered that M.N., motivated by revenge and general attention-seeking behavior, fabricated the sexual abuse claims. The defense also argued M.N. "could not have walked to Hemmerle's 'cabin' by himself, as [alleged], because campers were not allowed to be out alone after dinner and such a cabin did not exist." [Appellant Brief at 7].
Following the prosecution's case-in-chief, and again at the closing of all evidence, Hemmerle moved for a directed verdict of acquittal, arguing the evidence was insufficient to support the charges. The defense also renewed its motion to merge the indicted offenses into one count. These motions were denied, and the following instructions were given to the jury:
INSTRUCTION NO. 2
INDECENT OR IMMORAL PRACTICES WITH ANOTHER,
CHILD UNDER 15 YEARS OLD
You will find the Defendant guilty of [i]ndecent or immoral practices with another, child under 15 years old 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 Summer of 1973, and before the finding of this indictment, the Defendant placed his mouth on the penis of [M.N.]; and
B. That when he did so, the Defendant was 17 years of age or older; and
C. That [M.N.] was less than 15 years of age at the time; and
D. That such act of placing his mouth on the [M.N.'s] penis was an indecent or immoral act.
INSTRUCTION NO. 3
INDECENT OR IMMORAL PRACTICES WITH ANOTHER,
CHILD UNDER 15 YEARS OLD
You will find the Defendant guilty of [i]ndecent or immoral practices with another, child under 15 years old 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 Summer of 1973, and before the finding of this indictment, the Defendant touched the genitals of [M.N.]; and
B. That when he did so, the Defendant was 17 years of age or older; and
C. That [M.N.] was less than 15 years of age at the time; and
D. That such act of touching [M.N.'s] genitals was an indecent or immoral act.
After deliberation, the jury found Hemmerle guilty of the offense described in INSTRUCTION NO. 3, the molestation count, but not the offense described in INSTRUCTION NO. 2 relating to the oral sex allegation. The circuit court ultimately imposed a seven-year prison sentence, consistent with the jury's post-hearing recommendation. This appeal followed.
II. STANDARD OF REVIEW
When reviewing a trial court's denial of a motion for directed verdict of acquittal, appellate courts examine the evidence in its entirety to ascertain whether it would have been clearly unreasonable for the jury to return a guilty verdict. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The evidence is considered in a light most favorable to the prosecution, and questions of weight and credibility are left to the factfinder. Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013). The focus of the directed verdict analysis is also on the statutes creating the offense, rather than the law described in the jury instructions. Id. Jury instructions merely track the language of the statute and stand as a skeleton for the attorneys to flesh out in closing arguments. Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006). Nevertheless, statutory interpretation is a question of law reviewed de novo. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011).
Finally, Kentucky adheres to the test outlined in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), when an indictment is challenged for jeopardizing multiple punishments for the same offense. McNeil v. Commonwealth, 468 S.W.3d 858, 866 (Ky. 2015). The Blockburger test provides:
where the same act or transaction constitutes a violation of two (or more) distinct statutory provisions, the test to be applied to determine whether there are two (or more) offenses or only one, is whether each provision requires proof of a fact which the other does not.
III. DISCUSSION
On appeal, Hemmerle contends the judgment and sentence must be reversed because the Commonwealth did not sufficiently prove a criminal act. He also argues that KRS 435.105 requires a degree of criminal intent he did not possess, and that the jury instructions were flawed because they did not recite this mental state as an element of the offense. Lastly, Hemmerle claims that the two indicted offenses were unconstitutional attempts to punish him for only one simultaneous act. For the following reasons, we disagree.
A. THE TRIAL COURT PROPERLY DENIED HEMMERLE'S MOTIONS
FOR DIRECTED VERDICT
The Benham standard for denying a motion for directed verdict also applies when a criminal defendant challenges the sufficiency of the evidence. Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002). Under that standard, "[t]he testimony of even a single witness is sufficient to support a finding of guilt, even when other witnesses testified to the contrary . . . [.]" Id. This includes victim testimony in KRS 435.105 prosecutions. Bennington v. Commonwealth, 348 S.W.3d 613, 620-21 (Ky. 2011) (citing Faulkner v. Commonwealth, 343 S.W.2d 581, 583 (Ky. 1961)).
When it was in operation, KRS 435.105 contemplated a broad range of sexual contact other than intercourse. Bennington, 348 S.W.3d at 620. Sexual contact with a child, whether oral or manual, fell within the purview of the statute and was sufficient to convict the defendant of "carnal abuse," and equally an "indecent or immoral practice." See id. at 620-21. There is no mens rea element requiring a specific lustful intent. Id. at 621 (citing Hatfield v. Commonwealth, 473 S.W.2d 104, 106 (Ky. 1971) ("The carnal abuse of a child is a crime without regard to the reasons or the intent with which it was done.")). Moreover, there is no evidentiary presumption for defendants claiming an innocent motive (see McDonald v. Commonwealth, 331 S.W.2d 716, 718 (Ky. 1960) (overruling Koch v. Commonwealth, 290 S.W.2d 783 (Ky. 1955), because its procedural doctrine "would, in effect, license [adults] under the guise of kindness and charity to take indecent liberties with [children].").
The Commonwealth's case-in-chief consisted of testimony from four witnesses. M.N., a fellow camper, M.N.'s mother, and an expert physician. M.N. testified that one evening, while ostensibly receiving treatment for a poison ivy reaction, Hemmerle "grabbed my penis with his hand" for at least a minute . . . "and before I knew it, my penis was in his mouth." [T.R. Vol. 1 at 176-179]. The fellow camper supported M.N.'s story when he testified that M.N. was missing for an extended period one evening when the two were at Camp Tall Trees. M.N.'s mother verified that he returned from Camp Tall Trees with a severe reaction to poison ivy. Finally, the expert physician stated that Hemmerle had admitted to routinely applying lotion to boys' genitals in the past.
The defense did argue for a directed verdict at the close of the Commonwealth's evidence and again at the close of all evidence. However, that argument hinged solely on the sufficiency of the evidence and did not concern the issue of intent. The defense contends on appeal that the trial court erred in denying the directed verdict motion also on the issue of intent.
The Commonwealth argues on appeal that the failure to raise the issue of intent in the motion was a failure to preserve it. If so, our review would be limited to a palpable error standard under Kentucky Rule of Criminal Procedure ("RCr") 10.26. However, the issue of preservation is immaterial. Even if this Court were to interpret the insufficiency of the evidence argument made by Hemmerle at trial broadly enough to include the idea that the Commonwealth lacked insufficient proof on the issue of criminal intent, such intent was not an element of the offense as defined in KRS 435.105. Hatfield, supra.
The Commonwealth offered sufficient evidence for the jury to deliberate on whether Hemmerle committed two violations under KRS 435.105, one based on the alleged oral sex act and another for allegedly grabbing M.N.'s penis. From there, the jury weighed the competing evidence and found that Hemmerle committed a single indecent or immoral act by touching M.N.'s genitals. Our review of the record shows that M.N.'s testimony, if believed by the jury, was certainly sufficient to withstand a directed verdict motion and guilty verdict. We further hold that the separate establishment of intent was unnecessary under KRS 435.105. Thus, the trial court did not err in denying Hemmerle's motions for directed verdict, either on the evidentiary issue or the intent issue.
B. THE TRIAL COURT COMMITTED NO ERROR IN REGARD TO THE
JURY INSTRUCTIONS
Hemmerle asserts two errors related to the instructions given to the jury at his trial. First, he argues that the jury instructions should have included an instruction requiring the jury to make a factual finding that he acted with a culpable state of mind. Second, he argues that the instructions were confusing and permitted the jury to reach inconsistent verdicts. However, his brief fails to direct us to where in the record he has preserved this argument by either making an objection or submitting proposed instructions.
Hemmerle's arguments implicate both types of jury instruction error identified by the Kentucky Supreme Court in Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015). The first type of error, the decision whether to give a particular instruction, "inherently requires complete familiarity with the factual and evidentiary subtleties of the case . . . . [T]he trial judge's superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard." Id. at 204. The second type of error regarding the content of a jury instruction; that is, whether it correctly states the law, "is an issue of law that must remain subject to de novo review by appellate courts." Id.
As to Hemmerle's first argument, the Commonwealth argued that he both failed to preserve the issue and waived it under Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013), because he neither tendered his own jury instructions nor objected to the instructions prior to the trial court's reading them to the jury.
We agree with the Commonwealth. Martin makes it explicitly clear that RCr 9.54 operates as a bar to appellate review unless the issue was presented to the trial court. "A criminal defendant is entitled to 'have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions.'" Martin at 345 (citing Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005) (citing Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993)).
However, RCr 9.54(2) puts the burden on the parties to make their instructional preferences known to the trial judge. We emphasized that point in Bartley v. Commonwealth, when we said, "[i]t is not an error, however, palpable or otherwise, for the trial court not to instruct on a lesser included offense that has not been requested." 400 S.W.3d 714, 731 (Ky.2013)[.] Although palpable error under RCr 10.26 may be available for certain kinds of instructional error, for the reasons set forth herein, we now conclude RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or the failure to give a specific instruction.Id. Thus, Hemmerle's failure to tender jury instructions bars even palpable error review by this court.
Additionally, cases interpreting the language of the statute in effect at the time held that it did not require the Commonwealth to prove any specific intent. See Hatfield, 473 S.W.2d at 106. That our current statute criminalizing the same behavior contains a mens rea requirement does not invalidate a prior court's contemporaneous interpretation of a different statute criminalizing such behavior. The law does not entitle Hemmerle to an instruction on an issue which is not a component of the offense. The trial court did not commit an abuse of discretion in failing to grant a jury instruction on the issue of criminal intent.
In his second argument, Hemmerle contends that the jury instructions quoted above, which contain identical recitations of law but differentiate the offenses based on M.N.'s factual allegations, were confusing to the jury and led to verdicts which were both inconsistent and "repugnant to common sense." Hemmerle argues that an acquittal on one charge should automatically have acquitted him on both, because the two counts alleged the same offense.
However, Hemmerle's position ignores the fact that the two counts alleged different actions comprising two distinct instances of the same offense. As previously discussed, the evidence presented was that while Hemmerle was rubbing alcohol on M.N.'s legs he stopped and grabbed M.N.'s penis for one to two minutes. When Hemmerle let go of M.N.'s penis he resumed rubbing alcohol on his body, and then put M.N.'s penis in his mouth for one to two minutes. Hemmerle was charged with two separate counts of violating KRS 435.105: one for grabbing M.N.'s penis, and one for putting M.N.'s penis in his mouth. These are two separate offenses and the circuit court did not act arbitrarily, unreasonably, unfairly, or in a way unsupported by sound legal principles in ruling that they could be charged as two separate offenses under KRS 435.105.
Further, the jury instructions here differ from the instructions given to the jury in Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009). The defendant in Miller faced multiple counts of the same offense, and the jury instructions as to those counts were identical in their entirety. The Supreme Court noted that it is "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." Id. at 696 (citing Combs v. Commonwealth, 198 S.W.3d 574 (Ky. 2006)). Though Hemmerle's position attempts to minimize the language in the jury instructions that delineates one offense from the other, the instructions in this case clearly avoid the error exemplified in Miller.
Having been properly instructed, the jury was free to believe or disbelieve any evidence, in whole or in part, that either the Commonwealth or Hemmerle introduced into the record, including the testimony of any witnesses. Reynolds v. Commonwealth, 113 S.W.3d 647, 650 (Ky. App. 2003). That the jury believed part, but not all, of the Commonwealth's evidence was well within the jury's purview as the finder of fact. The disparate verdicts simply reflect that belief.
C. PROSECUTION FOR TWO COUNTS OF THE SAME OFFENSE DID
NOT VIOLATE DOUBLE JEOPARDY
"A defendant is put in double jeopardy when he is convicted of two crimes with identical elements[.]" Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2012) (quoting Turner v. Commonwealth, 345 S.W.3d 844 (Ky. 2011). The Blockburger test examines when crimes have the same elements, or "whether there are two offenses or only one, . . . whether each provision requires proof of a fact which the other does not." 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Double Jeopardy Clause protects defendants against three types of abuses: 1) a second prosecution for the same offense after an acquittal, 2) a second prosecution for the same crime after a conviction, and 3) multiple punishments for the same offense. Hourigan v. Commonwealth, 962 S.W.2d 860, 862 (Ky. 1998) (citing U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989), 104 L.Ed.2d 487 abrogated by U.S. v. Hudson, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). This case presents an example of the third category.
The Supreme Court held in Hudson that the "Double Jeopardy Clause does not prohibit the imposition of additional sanctions that could 'in common parlance,' be described as punishment[,]" but are not criminal in nature. Hudson, 522 U.S. at 98-99 (quoting U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943)). --------
Kentucky's statutory double jeopardy protections are found in KRS 505.020, and the portion of that provision most pertinent to our analysis is KRS 505.020(1)(c):
When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:The Kentucky constitutional double jeopardy protections are found in Section 13: "No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him." The Kentucky Supreme Court held in Jones v. Commonwealth, 756 S.W.2d 462 (Ky. 1988), that the two should be read in conjunction to stand for the proposition that "[t]he Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses." Id. at 463, overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996). Subsequent courts have recognized this prohibition.
(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
In Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008), a defendant faced charges for multiple sexual offenses against his two biological children and the child of his live-in girlfriend, resulting in 25 convictions. The Supreme Court held that the defendant's convictions on two of those charges, use of a minor in a sexual performance and promoting the sexual performance of a minor, arose from the same course of conduct under the same-elements test from Blockburger and thus violated double jeopardy. Id. at 677. In reaching its conclusion, the Court opined that "the exact same facts could prove the commission of two separate offenses, then the double jeopardy clause mandates that while a defendant may be prosecuted under both offenses, he may be convicted under only one of the statutes." Id. at 675.
A panel of this Court applied Clark to hold that a convicted felon found in possession of two handguns could only be convicted of a single count of being a felon in possession of a handgun. Hinchey v. Commonwealth, 432 S.W.3d 710 (Ky. App. 2014). The Court interpreted KRS 505.020(1)(c) to require a ruling that the possession of two handguns only amounts to one offense because the statute prohibiting such behavior does not specifically designate separate offenses for each gun. Id. at 714. Thus, the Court vacated one of the convictions, noting that "[u]nder both the U.S. Constitution and the Kentucky Constitution, double jeopardy prohibits multiple punishments for the same offense."
Hemmerle's position, that double jeopardy prohibits the prosecution of both offenses which arose out of the same course of conduct contradicts both the plain language of KRS 505.020(1)(c) and the cases interpreting it. Those authorities forbid not the prosecution of such offenses, but convictions, and the remedy for such violation is to vacate one of the convictions, not to reverse for new trial proceedings. Kiper, 399 S.W.3d at 746 (quoting Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n.26 (Ky. 2010)).
This Court need not concern itself with the issue of remedy, however, because there has been no violation of double jeopardy. Under the authorities cited herein, it is a second conviction arising out of the same course of conduct that creates the double jeopardy situation, and the jury only convicted Hemmerle of one count.
IV. CONCLUSION
This Court concludes that the trial court committed no reversible error in the proceedings below. Having so concluded, we affirm the judgment of conviction entered by the Meade Circuit Court.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: David A. Lambertus
Louisville, Kentucky BRIEF FOR APPELLEE: Andrew G. Beshear
Attorney General Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLEE: Leilani K. M. Martin
Frankfort, Kentucky