Alcorn v. Com., 94-CA-604-MR
| Decision Date | 19 May 1995 |
| Docket Number | No. 94-CA-604-MR,94-CA-604-MR |
| Citation | 910 S.W.2d 716 |
| Parties | Edward ALCORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
J. David Niehaus, Deputy Appellate Defender, Louisville, Daniel T. Goyette, Dist. Public Defender, Louisville, for appellant.
Chris Gorman, Atty. Gen., E.M. Lowery, Asst. Atty. Gen., Frankfort, for appellee.
Before LESTER, C.J., and DYCHE and McDONALD, JJ.
This is an appeal from a judgment entered upon a guilty plea pursuant to RCr 8.09 to the offense of using a minor in a sexual performance and imposing a probated sentence of five years imprisonment.
According to a thirteen-year-old boy, D.T., Edward Alcorn had approached the youngster several times at Holy Name ball field with an offer of money to accompany him to the men's room where D.T. would expose his genitals while he, Alcorn, masturbated himself. D.T. did this several times with appellant.
Alcorn was indicted under KRS 531.310(1) which provides in subsection (1):
A person is guilty of the use of a minor in a sexual performance if he employs, consents to, or authorizes or induces a minor to engage in a sexual performance.
KRS 531.300(5) defines "performance" as meaning:
... any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;
while KRS 531.300(6) states:
"Sexual performance" means any performance or part thereof which includes sexual conduct by a minor;
In accepting the conditional plea, the trial court acknowledged that appellant could challenge the conviction by raising the issues of whether one person can constitute an audience and whether D.T.'s acts were a "performance."
There can be little or no argument that the Legislature sought to prohibit the sexual exploitation of minors including such deviate behavior as Alcorn engaged in in the presence of a child. This would be especially true where the actor used the child in any manner whatsoever whether he physically touched him or not. In an effort to escape the consequences of his action, appellant presents us with six standard dictionary definitions of audience, all of which indicate the presence of more than one person. This is all well and good but bearing in mind the purpose of the statute, we are all too aware that many types...
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Purcell v. Com., No. 2001-SC-0707-DG.
...J., concurs in part and dissents in part by separate opinion, with GRAVES, J., joining that opinion. 1. In Alcorn v. Commonwealth, Ky.App., 910 S.W.2d 716 (1995), the Court of Appeals held that "an audience may consist of one person." Id. at 2. In Mattingly v. Commonwealth, Ky.App., 878 S.W......
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Commonwealth v. Bundy
...exhibited before an audience,” jury instruction defining “audience” as “[a]n individual” correctly stated law); Alcorn v. Commonwealth, 910 S.W.2d 716, 717 (Ky.Ct.App.1995) (holding that “audience” required for “performance” “may consist of one person, such as the accused”). 9. We adopt the......
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Chambers v. Commonwealth
...Ky., 715 S.W.2d 227, 228 (1986). 18. KRS 529.030. 19. Neal v. Commonwealth, Ky., 95 S.W.3d 843, 849 (2003). 20. Alcorn v. Commonwealth, Ky.App., 910 S.W.2d 716, 717 (1995). 21. Allen v. Commonwealth, Ky.App., 997 S.W.2d 483, 487 22. Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962); Bowling......
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Baker v. Com.
...act of taking the pictures of J.R.'s exposed breasts and genitalia was sufficient to satisfy the statute. See also Alcorn v. Commonwealth, Ky.App., 910 S.W.2d 716 (1995). An instruction on a lesser-included offense is required only if, considering the totality of the evidence, the jury coul......