496 S.W.3d 435 (Ky. 2016), 2014-SC-000353-MR, Jenkins v. Commonwealth

Docket Nº:2014-SC-000353-MR
Citation:496 S.W.3d 435
Opinion Judge:HUGHES, JUSTICE
Party Name:DAVID ALAN JENKINS, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE
Attorney:COUNSEL FOR APPELLANT: Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy. COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky; Perry Thomas Ryan, Assistant Attorney General.
Judge Panel:OPINION OF THE COURT BY JUSTICE HUGHES. All sitting. Minton, C.J.; Keller, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Venters, J., joins. Venters, J., dissents by separate opinion in which Cunningham, J., joins. All sitting. Minton, C.J.; Keller, Noble, ...
Case Date:August 25, 2016
Court:Supreme Court of Kentucky
 
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Page 435

496 S.W.3d 435 (Ky. 2016)

DAVID ALAN JENKINS, APPELLANT

v.

COMMONWEALTH OF KENTUCKY, APPELLEE

2014-SC-000353-MR

Supreme Court of Kentucky

August 25, 2016

         Released for Publication September 15, 2016.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          ON APPEAL FROM OHIO CIRCUIT COURT. HONORABLE RONNIE C. DORTCH, JUDGE. NO. 06-CR-00121.

         COUNSEL FOR APPELLANT: Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy.

         COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky; Perry Thomas Ryan, Assistant Attorney General.

         OPINION OF THE COURT BY JUSTICE HUGHES. All sitting. Minton, C.J.; Keller, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Venters, J., joins. Venters, J., dissents by separate opinion in which Cunningham, J., joins.

          OPINION

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         AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

         HUGHES, JUSTICE

         David Jenkins appeals as a matter of right from a Judgment of the Ohio Circuit Court convicting him of rape in the first degree (Kentucky Revised Statute (KRS) 510.040) and sodomy in the first degree (KRS 510.070). The Commonwealth accused Jenkins of committing those crimes against his seventeen-year-old step-granddaughter. The jury so found and recommended sentences of twenty years' imprisonment for both crimes, the sentences to be served consecutively. The trial court sentenced Jenkins in accord with the jury's recommendation to a total maximum term of forty years in prison. On appeal, Jenkins contends that the evidence adduced at trial was not sufficient to support the jury's verdicts and that, accordingly, he is entitled to a dismissal of the charges. He also contends that, even if the evidence was not so lacking as to require a directed verdict, a number of trial court errors rendered the proceedings unfair and entitle him to a new trial. In particular, Jenkins contends that the trial court erred (1) by admitting evidence of Jenkins's prior bad acts; (2) by admitting into evidence statements Jenkins made during a post-polygraph interview; (3) by disallowing the introduction of additional statements from that interview; (4) by refusing Jenkins's request for a jury instruction on the offense of sexual misconduct; and (5) by instructing the jury on a single count of sodomy, when the evidence reflected two such acts. Agreeing with Jenkins on this last point, that the sodomy instruction does not comport with our recent cases construing the Kentucky Constitution's unanimous verdict requirement, we reverse the sodomy conviction and the sodomy portion of Jenkins's sentence and remand for additional proceedings. Finding none of his other contentions sufficient to undermine the verdict, we affirm Jenkins's rape conviction and corresponding twenty-year sentence for that crime.

         RELEVANT FACTS

         The record indicates that in early 2006, the alleged victim in this case, " Jane," 1 was residing at the Genesis Home in Mayfield, Graves County, Kentucky. At that time the Mayfield Genesis Home provided group-home services to girls. According to the Commonwealth, Jane had been sent there in conjunction with a juvenile prosecution. Jane revealed to one of the home's counselors that in September 2005, while Jane was seventeen, she had stayed for a couple of days with her grandmother at her grandmother's home outside Fordsville, Kentucky, in Ohio County. Jane told the counselor that during her visit, her grandmother's husband, Jane's step-grandfather, David Jenkins, had forced her to engage in sexual acts, including intercourse. The counselor notified state authorities, and before long the case was assigned jointly to investigators from the Cabinet for Families and Children and the Ohio County post of the Kentucky State Police.

         Those investigators, Cabinet worker Kerry White Kellman and then State Police Detective Bryan Whittaker, 2 arranged

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for a State Police detective stationed in Graves County, Detective Michelle Kent, to interview Jane at the Genesis Home. Detective Kent recorded the interview and forwarded both the recording and a transcript of it to the Ohio County investigators. In about May 2006, Kellman and Whittaker together interviewed Jenkins and his wife, Susan Jenkins, at their home. In July 2006, Jenkins agreed to take a polygraph exam. Immediately following that exam, Sergeant Whittaker interviewed him again. In August 2006, an Ohio County Grand Jury indicted Jenkins on charges of first-degree rape (" engag[ing] in sexual intercourse with a minor by forcible compulsion" ) and first-degree sodomy (" engage[ing] in deviate sexual intercourse with a minor by forcible compulsion" ).3 The matter finally came to trial before the Ohio Circuit Court in March of 2014, by which time Jane was twenty-five.4

         At trial, the investigators testified concerning their roles leading up to the indictment. Although no mention was made of Jenkins's polygraph exam, over Jenkins's objection the Commonwealth was permitted to introduce during Sergeant Whittaker's testimony two brief excerpts, " snippets" as the Commonwealth referred to them, from the audio portion of Jenkins's post-polygraph interview. The Commonwealth argued that in these audio snippets Jenkins admitted having fantasized about Jane during her September 2005 visit, and admitted the possibility that under the influence of certain prescription medicines he could have engaged in sexual activity with Jane, but have been left with no recollection of it. (We address below Jenkins's objections to the post-polygraph evidence.) Otherwise, the Commonwealth's case rested entirely on the testimony of Jane.

         Jane testified that she was born in May 1988 to parents who never married. Her father, she implied, had essentially abandoned her, but in her early years her paternal grandmother, Susan, had been very involved in her life and for some time had had regular, court-ordered visitation. According to Jane (and confirmed by Susan), Susan married Jenkins in about 1995, when Jane was about seven. Jane testified that at first she got along well with Jenkins. She was not asked explicitly when or why that relationship changed, but her testimony clearly implied that at some point Jenkins had begun sexually abusing her. She testified that she had reported the abuse both to the police and to school officials, but apparently nothing came of those allegations beyond the rupture of her relationship with her grandmother. Whether at her grandmother's insistence, or her mother's, or both (the testimony was not clear), Jane testified that in September 2005, when the incidents giving rise to this case occurred, she had not seen her grandmother or Jenkins for about four years.

         According to Jane, on about September 15, 2005, she was visiting a friend in Pembroke, Kentucky when she began having significant pain in her mouth from what proved to be an abscessed tooth. Jane's mother, with whom Jane was living during that period, had recently moved to a new residence and did not yet have phone service, so Jane called her grandmother for help. Her grandmother and Jenkins came

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to Pembroke from Fordsville and took Jane to the hospital in Owensboro where a doctor examined her and prescribed an antibiotic. By then, apparently, it was fairly late in the day, but the three found an open pharmacy, had the prescription filled, and then proceeded to Susan and Jenkins's house. Jane remembered the three of them watching television for a little while that night, but believed that before long they had all gone to bed, a mattress having been provided for her in the living room. Jane testified that that night was uneventful.

         She had little recollection of what they did during most of the next day. That evening, however, according to Jane, her grandmother had fallen asleep on the living room couch, and Jane had been allowed to use Susan and Jenkins's computer. She had played computer games and had written what she characterized as a " perverted" email to her boyfriend.

         Jane testified that while she was using the computer, Jenkins was in and out of the computer room several times. While she was writing the letter to her boyfriend, Jenkins, she claimed, read the letter over her shoulder and made a remark to the effect, " You're the best because I made you the best." He also, at about that point, massaged her shoulders. Not long after that, Jane testified, Jenkins asked if he could take a picture of her. That request had not seemed inappropriate to her, and she complied. She became alarmed, however, when, shortly after the photo, Jenkins asked her if she " liked to be ate out," a reference, Jane knew, to oral sex. Jane testified that she did her best to ignore that remark and that soon thereafter Jenkins woke Susan from the couch and they all made preparations to go to bed. As they were parting for the night, however, Jenkins frightened Jane...

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