Jamieson v. Commonwealth, 012121 KYSC, 2019-SC-0582-MR

Docket Nº:2019-SC-0582-MR
Party Name:ROBERT JAMIESON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:COUNSEL FOR APPELLANT: Adam Meyer Assistant Public Advocate Department of Public Advocacy COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Aspen Roberts Assistant Attorney General
Case Date:January 21, 2021
Court:Supreme Court of Kentucky

ROBERT JAMIESON APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2019-SC-0582-MR

Supreme Court of Kentucky

January 21, 2021

NOT TO BE PUBLISHED

ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY M. EASTON, JUDGE NO. 18-CR-00049

COUNSEL FOR APPELLANT: Adam Meyer Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Aspen Roberts Assistant Attorney General

MEMORANDUM OPINION

Robert Patrick Jamieson appeals as a matter of right[1] his conviction by a Hardin County jury of first-degree sodomy, first-degree incest, and first-degree sexual abuse of H.J., [2] his granddaughter. Jamieson appeals the trial court's jury instructions regarding the charges of first-degree sodomy (single act) and first-degree incest (single act) as violating his right to a unanimous verdict. Jamieson also alleges the trial court erred when it permitted a police detective to improperly bolster H.J.'s testimony. Having reviewed the record and the parties' arguments, we hereby affirm the judgment of the Hardin Circuit Court.

I. BACKGROUND

H.J. was born on May 7, 2006, to Jamieson's daughter, a struggling drug addict, and a non-participating father. Jamieson and his longtime girlfriend Lorrie took responsibility for H.J. and, in 2007, were granted legal custody. When H.J. was six, Jamieson and Lorrie's relationship ended. Lorrie continued as H.J.'s primary guardian, but Jamieson had visitation every other weekend.3This arrangement continued for approximately six years, until January 2018, when H.J. told Lorrie that Jamieson had been inappropriately touching her since May 2017.

Lorrie contacted the Kentucky State Police to report H.J.'s allegation. Detective Borders was assigned to the case, and authorities set up a forensic interview with H.J. conducted by Silverleaf Sexual Trauma Recovery Services. Detective Borders did not participate in the interview but observed it. During the interview, H.J. provided details of Jamieson's actions. These details included the location of pornographic material and sex toys used by Jamieson on H.J. and that Jamieson had her perform oral sex on him at least once while seated in his recliner. Based on the interview, Detective Borders obtained a search warrant for Jamieson's residence. Officers executed the search warrant and retrieved two vibrators and pornographic magazines from locations identified by H.J. Various items collected were tested by the Kentucky State Police Laboratory. One of the vibrators was found to have H.J.'s DNA on it. A grand jury indicted Jamieson on charges of rape in the first degree, victim under twelve, in a continuing course of conduct; sodomy in the first degree, victim under twelve, in a continuing course of conduct; incest in the first degree, victim under twelve, in a continuing course of conduct; sexual abuse in the first degree, victim under twelve, in a continuing course of conduct; and terroristic threatening in the third degree.

At trial, H.J. testified the abuse began on her eleventh birthday when Jamieson took her into his bedroom and had her undress before touching her. H.J. stated Jamieson told her he would kill her or himself if she told anyone of the incidents. Over the next seven months, the abuse progressed. H.J. stated Jamieson forced her to perform oral sex on him once or twice while he sat in a recliner. In other incidents, Jamison used a vibrator on her and viewed pornography with her. H.J. testified that while the oral sex and penetration by the vibrator each happened once or twice, the touching occurred every time she visited Jamieson.

After H.J.'s testimony, the Commonwealth called Detective Borders to the stand. During his testimony, the Commonwealth introduced physical evidence collected by Detective Borders and other KSP officers during the search. Included in the evidence was a vibrator found in the right-side bedroom nightstand, pornography found in the left-side bedroom nightstand, and fabric samples from the recliner. The vibrator was found to have H.J.'s DNA on it. When asked by the Commonwealth why he searched those areas and chose to collect a sample from the recliner, Detective Borders referenced the statements H.J. made to Silverleaf during the forensic interview. Counsel for Jamieson objected to Detective Borders's statements as impermissible hearsay. The trial court overruled the objection stating that the statements were permitted to the extent they explained why Detective Borders acted as he did. The trial court provided a limiting instruction to the jury explaining the permissible use of the statements during Detective Borders's testimony and again during jury instructions before closing arguments.

At the close of the trial, the trial court, over Jamieson's objection, provided the jury with both a continuing course of conduct instruction for each sexual offense and an alternate single-act instruction for each sexual offense. The jury deliberated for five hours and found Jamieson guilty of three charges: sodomy in the first degree, victim under twelve (single act); incest in the first degree, victim under twelve (single act), and sexual abuse in the first degree, victim under twelve, in a continuing course of conduct. This appeal followed.

II. ANALYSIS

Jamieson asserts the trial court committed two errors justifying that the convictions be vacated. First, he argues that the instructions to the jury regarding sodomy, first degree (single act) and incest, first degree (single act) were deficient and resulted in a non-unanimous verdict. Second, Jamieson asserts the trial court erred in permitting Detective Borders to improperly bolster H.J.'s testimony.

A. The Jury Instructions Properly Avoided a Unanimous Verdict Error.

Jamieson takes issue with the trial court's instructions as to the single acts of sodomy and incest. The trial court's sodomy instruction was as follows: If you do not find the Defendant guilty under Instruction No. 6 [Sodomy, continuing course of conduct], 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 before the finding of the Indictment herein and between May 7, 2017, and December 31, 2017, he engaged in a single act of deviate sexual intercourse with [H.J] with the jury in unanimous agreement on the single act occurring during that time frame;

AND

B. That at the time of such intercourse [H.J.] was less then twelve years old.

The incest instruction stated: If you do not find the Defendant guilty under Instruction No. 8 [Incest, continuing course of conduct], you will find the Defendant guilty of Incest 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 before the finding of the Indictment herein and between May 7, 2017, and December 31, 2017, he engaged in a single act of sexual intercourse or deviate sexual intercourse with [H.J] with the jury in unanimous agreement on the single act occurring during that time frame;

AND

B. That [H.J.] was his granddaughter;

C. That he knew [H.J.] was his granddaughter;

D. That at the time of such intercourse [H.J.] was less then twelve years old.

This Court has identified two forms of "unanimous verdict violations."4The first, not at issue here, can occur when multiple counts of the same offense are adjudicated in a single trial.5 The second form occurs "when a jury instruction may be satisfied by multiple criminal acts by the defendant."6 This second form of unanimous verdict...

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