Jacobs v. Commonwealth
| Decision Date | 26 March 2020 |
| Docket Number | 2018-SC-000366-MR |
| Parties | THOMAS D. JACOBS 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED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 MARION CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
A Marion Circuit Court jury convicted Appellant, Thomas D. Jacobs, of three counts of first-degree sexual abuse, victim under twelve years of age; four counts of first-degree unlawful transaction with a minor; two counts of second-degree rape; one count of first-degree sodomy, victim under twelve; and tampering with a witness. The jury recommended concurrent sentences totaling thirty years' imprisonment. The jury also found Jacobs to be a first-degree persistent felony offender and enhanced its recommended sentence to a total of thirty-five years' imprisonment. The trial court sentenced Jacobs in accordance with the jury's recommendation. He now appeals to this Court as a matter of right. Ky. Const. §110(2)(b).
Jacobs raises seven claims of error in his appeal, alleging: (1) the trial court erred when it failed to grant a separate trial for the tampering with a witness charge; (2) the trial court erred when it failed to exclude the testimonyof Joseph Caldwell or, in the alternative, grant a continuance; (3) the trial court erred when it allowed two witnesses to mention Jacobs's incarceration on other charges; (4) the trial court erred when it ruled Jacobs "opened the door" to inadmissible evidence that had been previously excluded when he was asked impermissible and highly prejudicial questions; (5) the trial court erred when it failed to grant a directed verdict; (6) the trial court erred when it instructed on multiple offenses for the same act, violating Jacobs's right to be free from double jeopardy; and (7) he was denied a fair trial due to cumulative error. For the following reasons, we affirm.
Understanding this case begins with the people involved and their relationships to each other. Thomas Jacobs and Jackie Moore were long-time friends. Moore claimed he practically raised Jacobs. Jacobs was also close to Moore's wife, Melissa Chesser, who saw Jacobs as a brother and best friend. Moore, Chesser, and their two daughters Katy and Freda, moved into a house on Lake Avenue in 2010, a couple of houses down the street from Katy's best friend, Melanie.1 Jacobs often slept in the residence, and sometimes nearby in his car or in the garage.
Jacobs and Moore worked together doing whatever work they could find, including tearing down houses and barns. Katy (Moore and Chesser's oldest daughter) said that after the family moved into the Lake Avenue home, Jacobsbegan molesting her when she was eleven years old. The abuse continued for three years.
In January 2016, the Lake Avenue house burned. This event is the central reference point for describing when Jacobs perpetrated some of the acts of sexual abuse upon Katy, as well as Katy's age at the time of the acts. After the old house burned, a new house was built at the same location, and while it was being built, the family rented a house nearby for a year. The family moved into the new house on Lake Avenue in January 2017.
After moving into the new house, Chesser suffered increasingly difficult health problems and was, on at least one occasion, admitted to the University of Louisville Hospital. Chesser and Moore had marital difficulties during this time including separating and getting back together. The marital problems and Chesser's health problems frequently left the two children in Jacobs's care. Jacobs testified he often cooked for the family. After the family moved into the new Lake Avenue home, Jacobs no longer lived or stayed at the house, although he continued to be a frequent visitor.
According to Katy, some sexual acts occurred in the old house on Lake Avenue when she was eleven years old. Other sexual acts occurred at other locations or in the new house on Lake Avenue when Katy said she was twelve or thirteen. Katy said everything began with her crush on Jacobs, but nothing came of this crush until she was eleven years old. Katy said she knew it happened when she was eleven when "she did not know the difference between right and wrong."
One evening while the family lived at the old house, Katy and her best friend Melanie were playing in the yard. When it got dark, Moore walked Melanie home, a couple of doors down from the old Lake Avenue house. Jacobs walked down from the garage next to the Lake Avenue house, kissed Katy, and grabbed her buttocks. Jacobs told her not to tell anyone, but Katy told Melanie. Katy said she was eleven years old when this happened.
Prior to the house burning, one afternoon Jacobs picked up Katy and her younger sister Freda from school, an occurrence that other witnesses said was common, but Jacobs said was unusual. When the three arrived home, no one else was present. Katy took a shower and after she got out of the shower, Jacobs walked in on her. Jacobs left but came back and locked the door. Katy said Jacobs placed his penis in her vagina while she lay on her back on a small freezer in the bathroom. The sexual intercourse was interrupted when Freda banged on the door.
Katy testified she was eleven years old at the time of the bathroom incident. This event is dated to the old house on Lake Avenue because the freezer was only in the bathroom at the old house.
On another occasion while the family lived at the old house, Jacobs took the children to the Dickens Christmas parade. After they returned, Katy was with Moore in the garage while he worked on a car. Jacobs told Katy to come over to a neighbor's garage located a few feet from where Moore was working. There, the two began making out and performed oral sex on each other. No sexual intercourse happened on this occasion because the activity stoppedwhen Chesser called Katy to come take her medicine. Katy said she was eleven years old at the time of the garage incident. She made an entry in her diary describing the sex acts. That diary entry became an important piece of evidence at Jacobs's trial.
During the time the family lived in the temporary house and after they moved into the new house on Lake Avenue, Jacobs took the children to school in Chesser's van. The number of times this occurred was the subject of disagreement between Jacobs who claimed only three times and Chesser who said it was often. Jacobs claimed Freda, the youngest child, would not ride with him. According to Katy, on multiple occasions, Jacobs dropped Freda off at school first and then took Katy to a secluded location near a lumber yard where he had sexual intercourse with her.
Katy described the acts of sexual intercourse near the lumber yard in detail—beginning with her removing her pants and sitting in the front passenger seat on Jacobs's lap facing him and, on one occasion, facing away from him. On each occasion, Katy was clear that Jacobs placed his penis in her vagina. Katy saw Jacobs wipe away ejaculate one time with a napkin and discard it out the window. After having sexual intercourse with Katy, Jacobs would take her to school. Katy said these acts occurred when she was twelve or thirteen.
Katy also testified as to an occasion of sexual abuse when she was twelve. On that evening, she went in a garage and Jacobs followed her. Katysaid the two made out and Jacobs grabbed her buttocks. Jacobs did not subject the pre-teen to intercourse on this occasion.
The sixth and final incident about which Katy testified occurred at the new house on Lake Avenue, when Chesser was gone for medical testing. Katy was asleep on the couch in the living room and Jacobs woke her up. The two started kissing and Katy performed oral sex on Jacobs. Moore was in his bedroom located at the end of a hallway connected to the living room, and when he opened his bedroom door, Jacobs told her to stop. Moore did not see what had been going on just moments before and Katy pretended she was asleep.
Several witnesses' testimony, including Chesser's and Moore's, provided a timeline of events. Jacobs argues on appeal that even if the acts happened as Katy described them, the acts could not have occurred when Katy was eleven, the age Katy claimed. Jacobs's calculation is based on Katy's school year and what other witnesses said about various dates.
At trial, witnesses testified regarding observations they had made indicative of an inappropriate relationship between Jacobs and Katy. For instance, Joseph Caldwell, a friend of Moore and Jacobs, caught Katy with a love note. Thinking the note was for a school boy, Caldwell grabbed it and read part of it. Upon realizing the note was not for a school boy, but, instead, was intended for Jacobs, Caldwell raised his concerns with Moore and Jacobs.
Chesser testified that she became suspicious when Katy had an emotional melt-down and left the house when Jacobs brought his new girlfriend, Brittany, to the new Lake Avenue home. Chesser found Katy crying in the backyard and when she asked her daughter what was wrong, Katy responded that Chesser would not understand. Following this event, Chesser set out to figure out what was going on with her daughter.
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