Hacker v. Commonwealth

• Decision Date: 13 June 2019
• Docket Number: 2018-SC-000152-MR
• Parties: MATTHEW C. HACKER, SR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: United States State Supreme Court — District of Kentucky

MATTHEW C. HACKER, SR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2018-SC-000152-MR

Supreme Court of Kentucky

June 13, 2019

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED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 GARRARD CIRCUIT COURT

HONORABLE C. HUNTER DAUGHERTY, JUDGE

NO. 14-CR-00038

MEMORANDUM OPINION OF THE COURT

REVERSING AND REMANDING

Appellant, Matthew C. Hacker, Sr., seeks our review of his conviction for first-degree sexual abuse, first-degree rape, and first-degree sodomy. Hacker was sentenced to a total of twenty years in prison.

As grounds for relief Hacker contends that (1) the jury instructions violated his right to a unanimous jury verdict by failing to differentiate between the separate offenses charged; (2) the trial court violated double jeopardy principles when it failed to distinguish the sexual abuse charge from the sodomy charge in the jury instructions; and (3) the trial court erroneously admitted evidence related to Hacker's marital relations.

I. FACTUAL AND PROCEDURAL BACKGROUND

When Shannon¹ was a pre-teen she sometimes stayed with Hacker and his wife Tressa Hacker, Shannon's maternal grandmother, for prolonged periods. Shannon testified that during these stays, Hacker would often have unwanted sexual interactions with her. Shannon testified that she could not remember exactly when Hacker first began abusing her, but the first occasion she could clearly recall occurred "on the higher end of [age] ten" during the summer of 2008. Shannon testified that on this occasion Hacker took her to his bedroom, performed oral sex on her, and touched her vagina. The testimony alleged Hacker's sodomy and sexual touching of Shannon occurred on several other occasions over an extended period of time, typically a couple times per week. According to Shannon, Hacker also tried to force her to touch his penis through his pants and perform oral sex on him, and penetrated her on two separate occasions.

Shannon testified that Hacker would sometimes play transvestite pornography while abusing her. Tressa was permitted to corroborate this with testimony that he would sometimes play the same kind of pornography during their consensual marital relations. However, she was also permitted to testify about other aspects of their marital relationship that lacked any nexus or similarity to Hacker's abuse of Shannon.

At the conclusion of the evidence Hacker was convicted of one count each of first-degree sexual abuse, first-degree rape, and first-degree sodomy, and sentenced to a total of twenty years' imprisonment.

II. THE COMMONWEALTH CONCEDES THATTHE INSTRUCTIONS' FAILURE TO DISTINGUISH BETWEENACTS CONSTITUTING THE CONVICTIONS WAS REVERSIBLE ERROR

In a long line of cases this Court has made clear that "a general jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof—violates the requirement of a unanimous verdict." King v. Commonwealth, 554 S.W.3d 343, 350 (Ky. 2018) (citing Johnson v. Commonwealth, 405 S.W.3d 439, 449 (Ky. 2013)). Because the instructions here failed to properly distinguish between the various acts which may have supported the convictions, the Commonwealth concedes that palpable error occurred and Hacker's convictions must be reversed.

Here, the instructions for first-degree sexual abuse, first-degree rape, and first-degree sodomy stated as follows:

FIRST-DEGREE SEXUAL ABUSE

You will find the Defendant guilty of First-Degree Sexual Abuse under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about January 1, 2006 to October 31, 2008 and before the finding of the Indictment herein, he subjected [Shannon] to sexual contact;

AND

B. That at the time of such contact, [Shannon] was less than 12 years of age.

FIRST-DEGREE RAPE

You will find the Defendant guilty of First-Degree Rape under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about January 1, 2006 to October 31, 2008 and before the finding of the Indictment herein, he engaged in sexual intercourse with [Shannon];

AND

B. That at the time of such intercourse, [Shannon] was less than 12 years of age.

FIRST-DEGREE SODOMY

You will find the Defendant guilty of First-Degree Sodomy under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about January 1, 2006 to October 31, 2008 and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with [Shannon];

AND

B. That at the time of such intercourse, [Shannon] was less than 12 years of age.

In this case, Shannon testified to multiple instances of illegal acts perpetrated by Hacker, each of which would fit within the statutory definitions for first-degree sexual abuse and first-degree sodomy. She also testified concerning at least two acts which would qualify as first-degree rape. However, the jury instructions for each count only provided for a general verdict. This meant that Hacker could be convicted of only one count for each charge out of the multiple instances described by Shannon. The instructions contained nothing to differentiate among the multiple acts identified. Therefore, because the individual jurors may have contemplated different acts committed by Hacker at different times in casting their guilty verdict votes, a unanimous verdict violation occurred as to each conviction.

In Martin v. Commonwealth, 456 S.W.3d 1, 9-10 (Ky. 2015), we held that "all unanimous-verdict violations constitute palpable error resulting in manifest injustice," essentially converting such a violation into structural error. See also Johnson, 405 S.W.3d at 457 ("This Court concludes that this type of error, which violates a defendant's right to a unanimous verdict and also touches on the right to due process, is a fundamental error that is jurisprudentially intolerable.").

Here, the Commonwealth concedes that these instructions allow for a non-unanimous verdict as to all convictions. It therefore agrees that, pursuantto our holdings above, each of Hacker's convictions should be reversed and remanded for a new trial. See also Ky. Const. § 7 (requiring a unanimous verdict to sustain a conviction); Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008); Miller v. Commonwealth, 283 S.W.2d 690, 696 (Ky. 2009); Jenkins v. Commonwealth, 496 S.W.3d 435, 448 (Ky. 2016); Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013); Hall v. Commonwealth, 551 S.W.3d 7, 20 (Ky. 2018); Gullett v. Commonwealth, 514 S.W.3d 518 (Ky. 2017); and Ruiz v. Commonwealth, 471 S.W.3d 675, 678 (Ky. 2015). Cf. Conrad v. Commonwealth, 534 S.W.3d 779, 784 (Ky. 2017) (citing Miller v. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002)) (This court recognizes and has consistently maintained that the jurors may reach a unanimous verdict even though they may not all agree upon the means or method by which a defendant has committed the criminal act).

We accordingly reverse each of Hacker's convictions and remand for a new trial consistent with this opinion.

III. DOUBLE JEOPARDY FOR FAILURE TO DISTINGUISHBETWEEN SEXUAL ABUSE AND SODOMY CHARGES

When a perpetrator commits sodomy against a victim he perforce commits sexual abuse against her. Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky. 1993) (sexual abuse in the first degree is a lesser-included offense of both rape in the first degree and sodomy in the first degree). While Shannon testified to multiple acts of sodomy, these acts could have qualified under the law as both an act of sodomy and sexual abuse. Here, thejury instructions failed to differentiate between the two crimes. However, since we are reversing Hacker's convictions and remanding for a new trial as discussed above, this double jeopardy argument is now moot. Therefore, we need not address this issue. King, 554 S.W.3d at 356. Upon retrial the jury instructions should differentiate between acts which qualify as both sodomy and sexual abuse as necessary.

IV. ADMISSION OF MARITAL RELATIONS EVIDENCE

Hacker also argues that "the trial court abused it discretion to the substantial prejudice of the Appellant when it allowed evidence that Appellant and his wife engaged in strange sexual behavior, violating KRE² 404(b), KRE 403, and KRE 402 and denying Appellant his right to a fair trial."

Hacker first argues that the trial court erred by allowing his wife to testify that Hacker would play transvestite pornography while having sexual relations with her, just as he allegedly did when abusing Shannon. While Hacker bases his argument against the admission of this evidence, in part, on KRE 404(b)(1), we disagree that testimony that the defendant viewed transvestite pornography while engaging in consensual sex with his wife is the type of "bad act" evidence requiring a KRE 404(b)(1) analysis. Instead, we are persuaded that a proper analysis under these circumstances is better limited to an analysis for its relevancy and prejudice under a KRE 401, 402, and 403.

In order to be admitted at trial, evidence must be relevant. KRE 402. Relevant evidence is "evidence having any...