Bandy v. Commonwealth
| Decision Date | 28 September 2017 |
| Docket Number | 2016-SC-000489-MR |
| Parties | LLOYD BANDY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM BUTLER CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
A circuit court jury convicted Lloyd Bandy of three counts of first-degree sodomy, five counts of first-degree sexual abuse, and one count of attempted first-degree rape. Bandy now appeals the resulting judgment as a matter of right.1 He argues on that the trial court erred by failing (1) to grant his motions for a directed verdict and (2) to read all the jury instructions to the jury. Finding no merit to either issue, we affirm the judgment.
Lloyd Bandy was an inmate at the Kentucky State Penitentiary, serving a ten-year sentence for four counts of Portraying a Minor in a Sexual Performance and Voyeurism. Bandy wrote several letters from prison confessing his guilt to the crimes charged in the present case—first-degree sodomy, first-degree sexual abuse, and first-degree rape. Bandy claims he wrote these letters only under pressure from another inmate and the alleged victim. The letters found their way into the hands of the Kentucky State Police, who began investigating.
During the investigation, Bandy again confessed to the crimes. Because of the police investigation, a grand jury indicted Bandy on multiple counts of first-degree sodomy, first-degree sexual abuse, and first-degree rape.
In addition to presenting the confession letters themselves, the Commonwealth presented testimony at trial from the victim corroborating Bandy's confession and from the officer responsible for the investigation.
Regarding the first issue on appeal, Bandy alleges that the trial court should have granted his motions for a directed verdict at the close of the Commonwealth's case. Bandy made two motions for directed verdict at that time. His first motion for directed verdict included the following grounds:
It's my position that if they [the Commonwealth] can't narrow a time down more than two years that's not sufficient to go to the jury on. The original indictment stated [the crime] happened between '94 and 2000. The Commonwealth has moved to amend...to say [the crime] happened between '96 and '98. My position is that if you can't narrow it down more than that it's insufficient to go to a jury.
The Commonwealth does not dispute the preservation of this issue as to Bandy's first motion. Bandy's second motion for directed verdict included the following grounds:
...Criminal Rule 9.6 allows that if there is no evidence but a confession that's not sufficient to go forward. My motion for a directed verdict is along those lines because absent his confession the victim in this case would have never been interviewed and there never would have been any other evidence.
The trial court denied both motions for directed verdict. The parties dispute the preservation of the issue as to Bandy's second motion.
Bandy testified in his own defense and countered the Commonwealth's evidence by stating that he only confessed because he was coerced by another inmate and by the victim herself. Bandy also elicited testimony from the victim regarding a potential relationship between the victim's mother and the inmate who allegedly coerced Bandy to confess.
Defense counsel renewed the motions for directed verdict at the close of all evidence, and the trial court denied both motions.
Regarding the second issue, Bandy alleges that the trial court erred when it failed to read all the jury instructions to the jury. Both parties agree that the trial court did not read every jury instruction verbatim and that this issue is unpreserved.
The jury found Bandy guilty of three counts of first-degree sodomy, five counts of first-degree sexual abuse, and one count of attempted first-degree rape. The jury recommended a life sentence on the sodomy counts, ten years on the sexual-abuse counts, and twenty years on the attempted rape, which the trial court followed, sentencing accordingly. This appeal followed.
The standard of review for each issue depends on the preservation of them. The Commonwealth does not dispute the preservation of Bandy's first motion for a directed verdict. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal."2
The parties dispute the preservation of Bandy's second motion for a directed verdict. If the issue is preserved, this Court will apply the Benham standard. If the issue is unpreserved, this Court will only reverse the trial court's ruling if affirming would result in palpable error.3 Palpable error requires a showing that the alleged error affected the "substantial rights" of a defendant, where relief may be granted "upon a determination that manifest injustice has resulted from the error."4 To find that "manifest injustice has resulted from the error," this Court must conclude that the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable."5
The Commonwealth argues that Bandy's second motion is not specific enough to preserve this issue. We think Bandy's motion is specific enough to have alerted the trial court to the issue raised and thus specific enough to have preserved the issue for appellate review. Regardless of which standard is applied, however, the conclusion is the same, as we will show.
Both parties agree that Bandy did not preserve the jury instruction issue. Thus, the standard of review for this issue is palpable error.
On the charges of first-degree sodomy, first-degree sexual abuse, and attempted first-degree rape, a consistent element in these offenses is that the victim be less than 12-years-old.6 "In a felony case, the failure to prove the specific date of the offense is of no consequence unless time is a material ingredient of the offense."7 "[A] child victim's inability to give specific times and dates in a child sex abuse case does not render the evidence insufficient to support a conviction as long as the date of the offense is not a necessary element."8 According to these rules, the prosecution must prove beyond a reasonable doubt that the victim was less than twelve-years-old at the time of the alleged crimes but does not have to prove a specific date of the events.
Bandy essentially asks this Court to require more certainty in the time-frame evidence presented by the Commonwealth as to when the crimes occurred. No case in Kentucky has held to require exact specificity in pinpointing the dates of the alleged crime; in fact, Kentucky cases state the opposite.9 "In each of those cases, the victims described a distinct factual basis for each separate charge so that the jury could determine in each instance whether a separate criminal offense had been committed."10 "Discrepancies in the victim's testimony are matters of credibility going to the weight to be given by the jury to the child's testimony."11
Taking these rules together, it is the jury's prerogative to decide whether a more certain time period is required for a conviction. Our job is to decide "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal."12
The Commonwealth's evidence included the victim's testimony as to Bandy's alleged crimes, confession letters written by Bandy, and testimony by an officer who interviewed Bandy during which Bandy confessed to the crimes again, all confirming a time period when the victim was under the age of twelve. Bandy's evidence included Bandy's testimony denying the alleged crimes, with explanations. Considering this evidence, having heard both sides, it would not be unreasonable for a jury to find that the victim was under the age of twelve during the commission of the alleged crimes, and thus we affirm the trial court's decision to deny Bandy's first motion for a directed verdict.
A question exists as to the correct applicable standard of review for this motion. But under either standard, Bandy's appeal fails. The alleged preservation issue notwithstanding, Bandy argues that the trial court should have generally granted Bandy's motion for a directed verdict, in addition to specifically granting Bandy's motion for a directed verdict regarding jury instructions six, ten, and eleven. Bandy's entire argument on this issue rests on the Commonwealth's alleged violation of RCr 9.60.
As RCr 9.60 states, "A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that such an offense was committed."13 ...
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