Clark v. Com.

• Decision Date: 24 May 2007
• Docket Number: No. 2005-SC-000177-DG.,2005-SC-000177-DG.
• Citation: 223 S.W.3d 90
• Parties: Daniel C. CLARK, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

223 S.W.3d 90

Daniel C. CLARK, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000177-DG.

Supreme Court of Kentucky.

May 24, 2007.

David A. Lambertus, Louisville, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice MINTON.

I. INTRODUCTION.

A jury convicted Daniel Clark of two counts of sexual abuse in the first degree for which he was sentenced to a total of ten years' imprisonment. A divided panel of the Court of Appeals affirmed Clark's convictions, and we granted discretionary review.

Clark contends that the trial court erred (1) by refusing to instruct the jury on sexual abuse in the second degree, (2) by permitting the Commonwealth to present testimony to the jury of Clark's prior sexual misconduct involving another victim, and (3) by refusing to permit him to play for the jury a social worker's videotaped interviews of the alleged victims. We find merit in Clark's first two arguments, and we reverse on those issues. Of necessity, we find no error in Clark's third contention because the videotapes are not in the record for us to review.

II. FACTUAL AND PROCEDURAL HISTORY.

Clark's indictment charged him with committing two counts of first-degree sexual abuse — one count as to E.H. and one count as to L.H.—of children less than twelve years of age and two counts of first-degree sodomy—one count as to E.H. and one count as to L.H.—of children less than twelve years of age between 1998 and May 2002.¹ The charges proceeded to trial. During jury selection, the trial court granted the Commonwealth's motion to dismiss the charge of sodomy of L.H. During trial, the trial court allowed the Commonwealth to amend the indictment to accuse Clark of committing the offenses between 1999 and May 2002, rather than between 1998 and 2002.

L.H. and E.H. testified that Clark, who was a family friend, repeatedly and over a course of years reached his hands into their pants and fondled their penises. Generally, each testified that such contact occurred when he was alone with Clark, either in the child's home or in Clark's vehicle. L.H. testified that Clark once fondled his penis while he, Clark, L.H.'s grandmother, and E.H. were watching television together. And E.H. testified that Clark placed his mouth on his penis on at least one occasion, but L.H. did not testify to any oral sexual contact with Clark. Both E.H. and L.H. testified that Clark did not request that either of them touch him in a sexual manner.

The Commonwealth was also permitted to call M.M. as a witness.² M.M., who was thirty-three years of age at the time of trial, testified that Clark, in his former role as a Roman Catholic priest, counseled M.M. when he was in the sixth grade. According to M.M., during counseling sessions, which usually occurred during and after school when only Clark and M.M. were present, Clark repeatedly placed his hands down M.M.'s pants and fondled M.M.'s penis. M.M. testified that Clark repeatedly placed his mouth on M.M.'s penis. M.M. also testified that Clark never asked M.M. to touch Clark in a sexual manner. Several years later, Clark pleaded guilty to a criminal offense based on his sexual misconduct toward M.M.

The jury found Clark guilty of sexual abuse in the first degree against both L.H. and E.H. but found Clark not guilty of the sodomy charge against E.H. Consistent with the jury's recommendation, the trial court sentenced Clark to five years' imprisonment on each sexual abuse charge, to be served consecutively, for a total of ten years' imprisonment. The trial court denied Clark's motion for a new trial, and his appeal to the Court of Appeals was unavailing. We then granted discretionary review.

III. ANALYSIS.

A. Refusal to Instruct on Sexual Abuse in the Second-Degree Was Improper.

After oral amendment of the indictment during trial, Clark was charged with committing the first-degree sexual abuse of both L.H. and E.H. between 1999 and May 2002. Clark argues that based on these charges, he was entitled to an additional jury instruction on second-degree sexual abuse as to L.H. because L.H. turned twelve in November 2001, approximately seven months before May 2002, when the time period alleged in the indictment expired. Since the line dividing the offense of first-degree sexual abuse from second-degree sexual abuse is whether the victim is under twelve years old,³ we agree with Clark.

A court is required to instruct a jury on all offenses that are supported by the evidence.⁴ L.H. understandably could not pinpoint the date(s) when Clark abused him.⁵ So the indictment covered the broad time period from when L.H. moved to Bullitt County in September 1999 until May 2002, which L.H.'s mother testified was the last time the family had contact with Clark. The obvious problem with the time frame included in the indictment is that it includes several months when L.H. was twelve, even though the charged crime can only be committed against a child who is less than twelve.

The Commonwealth conceded at oral argument that it erred by not seeking to amend the indictment to limit the charge to that period of time before L.H. turned twelve. The Commonwealth's inexplicable failure to do so led to a situation in which the victim was unable to testify conclusively about when the abuse occurred, leaving the jury to speculate as to whether the abuse described by L.H. happened before L.H. turned twelve, after he turned twelve, or both. This problem is magnified by the fact that L.H. testified to having been repeatedly abused by Clark, yet the indictment charged Clark with a single count of abuse of L.H. Thus, if the jury believed beyond a reasonable doubt that Clark sexually abused L.H., it was forced to speculate both as to which instance of abuse was covered by the indictment and as to whether that particular act of abuse occurred before or after L.H.'s twelfth birthday.

A lesser-included offense is an offense that includes the same or fewer elements than the primary offense.⁶ And second-degree sexual abuse is not a classic lesser-included offense of first-degree sexual abuse because the age of the victim at the time of the abuse is usually clear. But in those rare instances where the age of the victim at the time of the abuse is in question, sexual abuse in the second degree can be deemed a lesser-included offense of sexual abuse in the first-degree. So a trial court must instruct on both offenses, thereby leaving it to the jury to decide which offense, if any, better fits the testimony.⁷ This is the precise scenario present in this case because L.H.'s testimony was so vague that the jury could have believed beyond a reasonable doubt that Clark sexually abused him before L.H. turned twelve, after he turned twelve, or both. Since there was evidence to support a finding of either first or second-degree sexual abuse, it was incumbent upon the trial court to instruct the jury on both charges.

Our review of the record also reveals that the trial court's refusal to instruct the jury on second-degree sexual abuse caused the instruction on first-degree sexual abuse as to L.H. to be seriously flawed. That instruction stated that the jury could find Clark guilty of first-degree sexual abuse of L.H. only if it believed beyond a reasonable doubt:

A. That in this county, beginning in 1999 and continuing through and including the month of May[ ] 2002, and before the finding of the Indictment herein, he subjected [L.H.] to sexual contact,

AND

B. That at the time of such contact, [L.H.] was less than twelve (12) years of age.

So in order to convict Clark of first-degree sexual abuse, the jury had to find beyond a' reasonable doubt that: (a) Clark subjected L.H. to sexual contact between 1999 "and including the month of May[] 2002" (emphasis added) and that such sexual contact occurred (b) while L.H. was less than twelve years old.⁸ Those two discrete findings are inherently inconsistent since it is uncontested that L.H. turned twelve several months before May 2002. The jury simply could not have found beyond a reasonable doubt that Clark subjected L.H. to sexual contact "through and including the month of May[ ] 2002" while also finding beyond a reasonable doubt that L.H. was less than twelve years of age when that sexual contact occurred. L.H. was not less than twelve years of age by May 2002.

Since a juror could have had a reasonable doubt that Clark sexually abused L.H. before L.H.'s twelfth birthday, yet have been convinced beyond a reasonable doubt that Clark sexually abused L.H. after L.H.'s twelfth birthday, the failure to instruct the jury on second-degree sexual abuse cannot be deemed a mere harmless error.⁹

In summary, we acknowledge that in most situations, an instruction on second-degree sexual abuse is not a lesser-included offense when the primary charge is first-degree sexual abuse. And the trial court in this case acted properly in refusing to instruct the jury on second-degree abuse as to Clark's alleged conduct toward E.H. since E.H. turned twelve in October 2002, several months after the expiration of the time period set forth in the indictment. But in a situation like the charge involving L.H., where the date(s) of the abuse are not described with particularity in either the indictment or the testimony such that a reasonable juror could have concluded that the victim was either eleven or twelve when the abuse occurred, a trial court errs by failing to instruct a jury on both first and second-degree sexual abuse. Thus, Clark's conviction for sexual abuse in the first degree of L.H. must be reversed.

B. Allowing Evidence of Clark's Prior Sexual Misconduct to be Introduced During the Guilt Phase Was an Abuse of Discretion.

In 1988, Clark pleaded guilty to first-degree sexual abuse and second-degree...