Justice v. Commonwealth

• Decision Date: 16 December 2021
• Docket Number: 2020-SC-0464-MR
• Citation: 636 S.W.3d 407
• Parties: Charles JUSTICE, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

636 S.W.3d 407

Charles JUSTICE, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2020-SC-0464-MR

Supreme Court of Kentucky.

DECEMBER 16, 2021

COUNSEL FOR APPELLANT: Shannon Dupree, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General, Kristin L. Condor, Assistant Attorney General, Office of the Solicitor General.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

A circuit court jury convicted Charles Dean Justice of four counts of first-degree sexual abuse, incest, attempted first-degree rape, attempted promotion of a sexual performance by a minor, distribution of matter portraying a sexual performance by a minor, promotion of a sexual performance by a minor, and being a first-degree persistent felony offender. The trial court imposed the 220 years' imprisonment sentence fixed by the jury.

Justice appeals the resulting judgment, raising the following trial errors:

1) The trial court erred by allowing the Commonwealth to amend the indictment against him to include an attempted rape charge after granting a directed verdict on the rape charge;

2) The trial court erred by failing to direct a verdict of acquittal on the attempted rape and sexual performance of a minor charges;

3) Palpable error occurred in the trial proceeding when the testimony of two medical experts named him as the perpetrator;

4) The trial court gave duplicitous instructions to the jury in violation of his right to a unanimous jury and his freedom from the threat of double jeopardy; and

5) The trial court imposed an illegal sentence.

Finding reversible error in the duplicitous jury instructions as asserted by Justice, we overturn the convictions for attempted rape and sexual abuse of E.W. We find no merit in the remaining assignments of error. Accordingly, we affirm the judgment in part, reverse in part, and remand the case to the trial court for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brittney's child, C.J., told her that her biological father, Brittney's ex-husband, Charles Justice, had raped her. After Brittney relayed this to C.J.'s school counselor, a formal police investigation ensued. C.J. was interviewed at the Child Advocacy Center (CAC), and, after watching the interview, the lead detective went to the residence Justice occupied with his girlfriend, Emily, and her three daughters, E.W., L.W., and T.W., and two sons. While there, the detective disclosed to Justice what C.J. had said in her interview and collected from the residence some electronic devices and sex toys. The detective returned to the CAC, where Emily's three daughters were interviewed. The detective also interviewed Justice at the police station.

Meanwhile, the police received a tip from the National Center for Missing and Exploited Children of an apparently homemade image of child pornography depicting a very young child's vagina spread open by two adult fingers. The IP address for the image was traced back to Justice's residence. Detectives executed a search warrant for the electronics located in Justice's residence and requested a DNA test on the sex toys collected from the residence. The DNA test reported matches for both E.W. and Justice on samples taken from several of the sex toys. Detectives also showed the pornographic image to E.W.'s mother, and she identified the adult hand as Justice's hand as well as the bedsheets appearing in the background of the image. Justice's phone was found to have bookmarked the website where the image had been uploaded.

At trial, C.J., E.W., and L.W. testified regarding the abuse they had suffered. C.J. testified that Justice touched her with his hands and penis several times. She also testified he had instructed her to use sex toys and to perform oral sex on him. She testified that E.W. was present during some of these encounters and that Justice instructed E.W. to use the sex toys as well. C.J. also testified that Justice took photographs of her but that she did not realize what he was doing at the time. Finally, C.J. testified that Justice threatened to kill her if she told anyone.

E.W. testified that Justice also touched her with his hands several times. She also testified that Justice touched her vagina with his penis more than once, that she could feel it poking her, and that it hurt, but that his penis never went inside her. E.W. said Justice had asked her to use the sex toys and she did, but they were alone when it happened.

The jury found Justice guilty of attempted rape in the first-degree, four counts of first-degree sexual abuse, one count of incest, one count of promoting a sexual performance by a minor, one count of attempted promotion of a sexual performance by a minor, and one count of distribution of matter portraying a sexual performance by a minor. The jury recommended a sentence of 220 years' imprisonment. The trial court accepted the recommendation and sentenced Justice accordingly.

II. ANALYSIS

A. The trial court did not err in amending the indictment to include an attempted-rape charge at trial.

Justice argues the trial court erred when, after granting his motion for a directed verdict on the indicted charge of rape at the close of the Commonwealth's case-in-chief, it allowed the Commonwealth to amend the indictment to add the charge of attempted rape. This issue is preserved, so we review the trial court's ruling for abuse of discretion, and we will only overturn the trial court's decision if it was arbitrary, unreasonable, or unsupported by law.¹

After the Commonwealth closed its case-in-chief, Justice moved for a directed verdict on the rape count. In her review of the Commonwealth's proof at this juncture, the trial court commented, "I just don't think the Commonwealth is going to be able to prove beyond a reasonable doubt the charge of rape." And the trial court concluded her thought by saying, "So [as to the rape count] the Commonwealth will not be able go forward on that charge." The Commonwealth immediately moved to amend the indictment to charge attempted-rape. After hearing more argument from both sides, the trial court granted the Commonwealth's motion to amend the indictment.

Kentucky Rule of Criminal Procedure (RCr) 6.16 states, "The court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Justice cites to Blane v. Commonwealth , in which we held that the grant of a directed verdict precludes a later amendment of the indictment to add additional or different offenses, unless the directed verdict is first set aside.² Blane held that a trial court reversibly erred by allowing the Commonwealth to amend Blane's indictment after it had granted a directed verdict.³ Blane was charged with trafficking marijuana within 1,000 yards of a school, but the Commonwealth failed to introduce any evidence of the proximity to a school.⁴ So the trial court granted Blane's motion for a directed verdict on the trafficking within 1,000 yards of a school charge, stating the evidence as presented supported a general trafficking charge.⁵ The trial court allowed the Commonwealth to amend the indictment to allow for the jury to consider Blane's guilt on the charge of trafficking in a quantity of marijuana greater-than-eight-ounces.⁶ We found reversible error because, after a directed verdict is granted, the defendant cannot be charged with an additional or different offense unless the directed verdict is first withdrawn.⁷

The Commonwealth responds that the present circumstances differ from those in Blane because the indictment in this case was amended to conform to evidence adduced during the Commonwealth's case-in-chief that amply supported submission to the jury on the lesser-included offense, attempted rape, without the introduction of any additional evidence. The Commonwealth asserts that RCr 6.16 allows such amendment, that the amendment did not name a new or additional offense, and that Justice's defense—a complete denial of any sexual contact with the victim—was not prejudiced. We agree with the Commonwealth. While under Blane , the trial court erred by failing to have unequivocally withdrawn the directed verdict and then considered amending the indictment to allow for a lesser-included offense, the error is harmless because Justice suffered no prejudice by defending against a lesser-included offense of the originally indicted charge.

B. Justice was not entitled to a directed verdict of acquittal on the attempted rape charge or the charge of attempted production of a sexual performance by a minor.

The Commonwealth has the burden of proving every element of an offense beyond a reasonable doubt, and the Commonwealth's failure to meet that burden entitles the defendant to a directed verdict on that offense.⁸ On review of an alleged error for failure to grant a directed verdict, we ask if the entirety of the evidence would make it clearly unreasonable for a jury to find the defendant guilty.⁹ We find Justice was not entitled to a directed verdict on the attempted rape charge because a reasonable jury could conclude that he attempted to rape E.W. Likewise, he was not entitled to a directed verdict on the attempted production of a sexual performance by a minor charge because a reasonable jury could conclude that he took a substantial step toward directing C.J., a minor, in a sexual performance.

First-degree attempted rape occurs when the perpetrator takes a substantial step toward engaging in sexual intercourse with a person incapable of consent because the victim is under the age of 12.¹⁰ A substantial step is defined as an act that leaves no reasonable doubt as to the perpetrator's intention to commit the crime that he is charged with attempting.¹¹ So a directed verdict in this case should have only been granted if there was not even the slightest evidence that Justice took a step toward having sexual intercourse with E.W., a...