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Henry v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Oct 21, 2016
NO. 2014-CA-001976-MR (Ky. Ct. App. Oct. 21, 2016)

Opinion

NO. 2014-CA-001976-MR NO. 2015-CA-000303-MR

10-21-2016

JASON HENRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Steven J. Megerle Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General J. Hays Lawson Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEALS FROM CAMPBELL CIRCUIT COURT
HON. JULIE REINHARDT WARD, JUDGE
INDICTMENT NO. 13-CR-01061 OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: Jason Henry has simultaneously appealed from the Campbell Circuit Court's Judgment and Sentence on Plea of Not Guilty (Jury Trial) entered November 10, 2014, as well as the Campbell Circuit Court's Order Overruling Defendant's Motion to Set Aside His Conviction pursuant to RCr 11.42, entered January 21, 2015. Finding no error, we affirm.

Kentucky Rules of Criminal Procedure.

BACKGROUND

At the time of the incidents for which he was charged, the appellant, Jason Henry, was employed by the Campbell County Detention Center as a deputy jailer. As a deputy jailer, his assignment was to guard female prisoners at the facility. On or about the evening of September 18, 2013, Henry allowed D.N., an inmate under his supervision, to perform oral sex upon him while he was standing behind the control counter in the detention cell. After D.N. left the control counter, Henry approached a second inmate, M.C., who then also performed oral sex upon Henry. A video recording from the detention center showed an inmate identified later as D.N. crawling behind the control counter where Henry was stationed.

An investigation at the detention center led to Henry being indicted on two counts of Sodomy in the Third Degree. Henry's trial took place on September 15-17, 2014. D.N. failed to appear, but M.C. testified for the Commonwealth. M.C.'s testimony included the facts that she witnessed Henry exposing himself to her when she asked him for a pen, and that she witnessed D.N. perform oral sex on Henry. Furthermore, in viewing the detention center video at trial, M.C. identified the person crawling under Henry's control counter as D.N. M.C. then testified that it was after the event in the video that Henry approached her, telling her "now it's your turn." She interpreted this to mean that she should now also provide oral sex, which she performed for about five seconds before stopping. The incident between Henry and M.C. was not captured on video.

Kentucky Revised Statutes (KRS) 510.090(1)(e).

The jury was instructed on two counts of Sodomy in the Third Degree - one concerning the incident with D.N. and one concerning the incident with M.C. The jury found Henry not guilty on the count relating to D.N., and guilty on the count relating to M.C. On November 10, 2014, the circuit court entered judgment, sentencing Henry to one year in prison. In addition, the circuit court required Henry, inter alia, to successfully complete the Department of Corrections Sex Offender Treatment Program, to be registered as a sex offender for a period of twenty years, and "pursuant to KRS Chapter 510" to be subject to "a period of conditional discharge for a period of five (5) years starting November 6, 2014." On November 25, 2014, Henry entered his motion to set aside conviction and suspend imposition of sentence under RCr 11.42 and RCr 12.76. Henry also filed notice of his direct appeal, which was entered December 5, 2014. The circuit court denied the motion to set aside conviction and suspend imposition of sentence on January 21, 2015. Henry then filed a notice of appeal with regard to the denial of the motion to set aside conviction, which was entered February 19, 2015. This consolidated appeal followed.

We believe that the circuit court is referring to KRS 532.043, "Requirement of postincarceration supervision for certain felonies." This statute mandates supervision by the Division of Probation and Parole for five years following conviction of any felony under KRS Chapter 510. In addition, "conditional discharge" was the term used by the statute prior to it being revised by the General Assembly in 2011 to use the term "postincarceration supervision." 2011 Ky. Acts, ch. 2, § 91.

ANALYSIS

As a preliminary matter, we should note that at the time of Henry's RCr 11.42 motion he had already served his one-year sentence, due to being credited for time under home incarceration in the year leading up to trial. Indeed, he was released from custody on October 22, 2014, and his sentencing in open court was held November 6, 2014. Ordinarily, RCr 11.42 motions are not appropriate after the movant's sentence has been completed. Reyna v. Commonwealth, 217 S.W.3d 274, 275 (Ky. App. 2007) (citing Wilson v. Commonwealth, 403 S.W.2d 710 (Ky.1966)). On the other hand, RCr 11.42 motions are also appropriate when the movant is on probation, parole or conditional discharge. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Because Henry is subject to a five-year period of postincarceration supervision administered by the Division of Probation and Parole as part of his sentencing, and the Kentucky Supreme Court has referred to this supervision period as being "akin to parole or an extension of parole," Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), we will consider the RCr 11.42 issue on its merits.

In the matter before us, Henry is simultaneously pursuing both his direct appeal and his motion to vacate sentence under RCr 11.42. With regard to his direct appeal, Henry alleges the following errors: (1) that the circuit court erred in denying his proffered definition of "subjected," for inclusion in the jury instructions; (2) that the Commonwealth did not prove the victims were inmates by producing a court order indicating their status; (3) that the jury instructions erred in not containing the entire language of the statute; (4) that the jury instructions failed to include lesser offenses; and (5) that the circuit court erred by inappropriate joinder, conducting a trial on the incidents involving both M.C. and D.N. instead of severing them. With regard to his motion to vacate sentence pursuant to RCr 11.42, Henry alleges that that trial counsel was ineffective for failure to file a motion to sever the two charges against him, and that the circuit court erred in denying the motion to vacate on that basis.

The statutes directly at issue in this case are KRS 510.090, Sodomy in the Third Degree, and KRS 510.020, Lack of Consent. KRS 510.090 reads in pertinent part as follows:

(1) A person is guilty of sodomy in the third degree when:

(e) Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010, or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to deviate sexual intercourse.

(2) Sodomy in the third degree is a Class D felony.
With regard to KRS 510.020, Lack of Consent, the statute reads in pertinent part as follows:
(1) Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim.

(2) Lack of consent results from:

(b) Incapacity to consent.
(3) A person is deemed incapable of consent when he or she is:

(e) Under the care or custody of a state or local agency pursuant to court order and the actor is employed by or working on behalf of the state or local agency.

Henry's first issue on appeal concerns the definitions included within the jury instructions. At trial, Henry propounded jury instructions that would have defined "subjected to" in KRS 510.090(1)(e) as: "Subjected to - means to bring under control or dominion. To cause or force to undergo or endure. It is more than merely engaging in and must include an element of force or compulsion." It should be noted that "subjected to" is not defined in the statutes. The circuit court denied the motion to include the definition in the jury instructions. We believe there is no error. The instructions mirror the statute, and without a specific statutory definition, there is no need to provide an external definition. "A formal definition is not required to be included in jury instructions where the jury can understand the term without such a definition." Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky. App. 2000) (citing Hardin v. Savageau, 906 S.W.2d 356, 358 (Ky. 1995)).

Next, Henry's second argument contends the Commonwealth failed to show proof to the jury that the victims in this case were properly deemed incapable of consent under KRS 510.020(3). Specifically, Henry argues that the Commonwealth was obligated to produce the court order for each inmate, showing that they were "[u]nder the care or custody of a state or local agency pursuant to court order." The appellant concedes that this was not preserved at trial by objection or written motion, and there does not appear to be a motion for directed verdict in the record. The Commonwealth argues that this forecloses the possibility of review even under palpable error:

When a defendant fails to preserve an error based upon the sufficiency of the evidence, an appellate court can review the issue for palpable error. But palpable error review will not be granted when a defendant did not move for a directed verdict or affirmatively waived the objection in the trial court.
Chavies v. Commonwealth, 354 S.W.3d 103, 113 (Ky. 2011) (internal citations and footnotes omitted). Even if review were appropriate, however, there appears to be no error, let alone palpable error. M.C. testified multiple times, both on direct examination and on cross-examination, that she and D.N. were inmates incarcerated at the Campbell County Detention Center. Furthermore, she testified that she was there because she violated the conditions of her probation, which is something that can only happen through a court order. There is no genuine question that M.C. and D.N. were appropriately deemed incapable of consent due to court-ordered incarceration, in accord with the terms of KRS 510.020(3). Because there was sufficient testimonial evidence in support of those requirements, we find no error.

In a similar vein, we find no error in Henry's third issue, wherein he argues the jury instructions were defective for failing to contain the entire language of the statute. The instruction for each charge mirrors the language of the Third Degree Sodomy statute, KRS 510.090, in requiring the jury to find that Henry was an employee of a detention facility, and also that he subjected each named inmate, "a person he knew to be incarcerated," to deviate sexual intercourse. Henry argues that the instructions should have contained language from KRS 510.020(3)(e) indicating that the persons in question were "[u]nder the care and custody of a state or local agency pursuant to court order." Henry states that this error was preserved through the submission of alternate jury instructions which were rejected by the circuit court. This is a questionable argument, however, since Henry's proposed instructions also contain the "person he knew to be incarcerated" formulation found in the final instructions, and not the "pursuant to court order" language he now believes was error to exclude. Henry's objection to the instructions at trial were on the issue of "subjects to," which we have already considered.

Assuming arguendo that the issue was preserved, we do not believe it to be error. The court's final instructions specifically require the jury to find that Henry was an employee of a detention facility, and that the inmate was "a person [Henry] knew to be incarcerated." We believe the language in the instructions not only contains the elements of the third degree Sodomy statute, but also functionally encompasses the factors in KRS 510.020(3)(e) regarding lack of consent; that Henry was "the actor is employed by or working on behalf of the state or local agency," where the persons affected were "under the care and custody of a state or local agency pursuant to court order." Incarceration is the quintessential model of such a scenario. Accordingly, we find no error on this issue.

Henry's fourth assignment of error is that the jury instructions failed to include the lesser offenses of Official Misconduct in the first degree, or Sexual Abuse in the second degree. Henry admits that the purported error is not preserved, and the record shows that Henry did not tender instructions on those alternative offenses. RCr 9.54(2) states that "[n]o party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction[.]" Thornton v. Commonwealth, 421 S.W.3d 372, 375-76 (Ky. 2013). Henry's failure to give instructions on lesser included offenses renders the issue unreviewable at the appellate level.

Henry's fifth assignment of error is that the circuit court inappropriately joined the charges in this case, contending he was unfairly prejudiced by being tried for sodomy against both M.C. and D.N. in the same proceeding. He concedes that this issue was not preserved by contemporaneous objection or written motion, as trial counsel did not move to sever the counts.

If it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. A motion for such relief must be made before the jury is sworn or, if there is no jury, before any evidence is received.
RCr 9.16, now RCr 8.31, (emphasis added). Our case law is very clear that there is no requirement for a trial court to sever charges sua sponte:
RCr 9.16 provides that separate trials are required only where it appears that the defendant or the prosecution is or will be prejudiced by the joinder of the offenses or defendants at trial. A criminal defendant is not entitled to severance unless there is a positive showing prior to trial that joinder would be unduly prejudicial.
Dishman v. Commonwealth, 906 S.W.2d 335, 340 (Ky. 1995). Furthermore, the burden is on the defendant to show why joinder is inappropriate: "Under RCr 9.16, a defendant must prove that joinder would be so prejudicial as to be 'unfair' or 'unnecessarily or unreasonably hurtful.'" Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky. 2006) (citing Commonwealth v. Rogers, 698 S.W.2d 839, 840 (Ky.1985)). As there was no motion to sever the charges at Henry's trial, we find that no error may be assigned to the circuit court on this issue.

RCr 9.16, "Separate Trials," has been deleted by Order 2014-22, eff. 1-1-15, as this rule has been shifted to RCr 8.31 "Separate Trials."

Finally, Henry also appeals pursuant to RCr 11.42, arguing that trial counsel rendered ineffective assistance by failing to move to sever the charges against him, and that the circuit court erred by denying the motion to vacate the judgment and sentence. A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" given to us in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), accord Gall v. Commonwealth, 702 S.W. 2d 37 (Ky. 1985); see also Parrish v. Commonwealth, 272 S.W.3d 161 (Ky. 2008).

The "performance" prong of Strickland requires that the "[a]ppellant must show that counsel's performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, or that counsel's representation fell below an objective standard of reasonableness." Parrish, 272 SW3d at 168 (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064) (internal quotations and citations omitted).

In its excellent analysis of the RCr 11.42 motion under Strickland, the circuit court found no deficient performance. Even if trial counsel had made the required motion to sever the charges, the motion would not have been granted.

RCr 6.18 allows for the joinder of offenses in separate counts of an indictment provided that the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
Peacher v. Commonwealth, 391 S.W.3d 821, 836 (Ky. 2013). The circuit court recited the following facts in order to reach its conclusion:
[W]hile he was a deputy jailer, Mr. Henry subjected M.C. and D.N. (both inmates in the female dorm) to deviate sexual intercourse - oral sex. The prosecution alleged that Mr. Henry first received oral sex from D.N. while sitting at his desk. M.C. testified at trial that she watched this happen. After D.N. finished, M.C. testified that Mr. Henry walked over to her bunk, exposed his genitals to her, and said "it was her turn." She then testified that she performed oral sex on him.
On those facts, the circuit court found that the crimes were "so alike as to be properly joined under the 'same or similar character' prong of RCr 6.18. Both crimes were the same offense; committed in the same place, and at nearly the same time; both involved inmates subject to the authority of Mr. Henry; and in both cases he received oral sex."

The circuit court also found that there was no undue prejudice to Henry because of the joinder. The court, citing Peacher at 838, properly analyzed whether evidence from both incidents would be admissible to prove each offense under Kentucky Rules of Evidence (KRE) 404(b). The circuit court held that evidence from both offenses falls into the inextricably intertwined, modus operandi, and part of a common scheme or plan exceptions under KRE 404(b). Ultimately, in denying the motion to set aside the conviction under RCr 11.42, the court stated its holding as follows:

"[B]ecause evidence from the two offenses would have been admissible in each trial, Mr. Henry was not entitled to severance under RCr 916. Therefore, because any RCr 9.16 based motion would have been meritless, his trial attorney was not deficient. Because Mr. Henry has not met his burden under this prong of Strickland, it is not necessary for this Court to analyze his claim under the second prong of Strickland.
We agree and therefore conclude there was no error in this regard.

CONCLUSION

For the foregoing reasons, we affirm Henry's conviction in the Campbell Circuit Court, as well as the court's order denying RCr 11.42 relief.

ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Megerle
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Henry v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Oct 21, 2016
NO. 2014-CA-001976-MR (Ky. Ct. App. Oct. 21, 2016)
Case details for

Henry v. Commonwealth

Case Details

Full title:JASON HENRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Oct 21, 2016

Citations

NO. 2014-CA-001976-MR (Ky. Ct. App. Oct. 21, 2016)