King v. Commonwealth

• Citation: 554 S.W.3d 343
• Decision Date: 16 August 2018
• Docket Number: 2016-SC-000414-MR
• Parties: Ronald Lee KING, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court (Kentucky)

554 S.W.3d 343

Ronald Lee KING, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2016-SC-000414-MR

Supreme Court of Kentucky.

AUGUST 16, 2018

COUNSEL FOR APPELLANT: Shannon Renee, Dupree Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VANMETER

Ronald King appeals as a matter of right from his conviction by jury and life sentence arising from charges of two counts of first-degree sodomy, and two counts of first-degree sexual abuse. Because the jury instructions on the sexual abuse counts violated the unanimity requirement, we reverse and remand King’s sexual abuse convictions. On remand, we also direct the trial court to address the sentencing error in imposing a term of years to run consecutively with a term of life imprisonment. We otherwise affirm King’s sodomy conviction and the trial court’s evidentiary rulings.

I. PROCEDURAL AND FACTUAL BACKGROUND.

A.S. is a minor child, born in 2005. A.S.’s parents are heroin addicts who were frequently absent or incarcerated, so A.S. and her older brother lived with their biological grandmother, Hope King, and her husband, Ronald King, who A.S. knew as "Pawpaw." The family lived in several locations throughout A.S.’s life: the "brown trailer" on Sioux Trail in Elsmere until A.S. was six or seven; the house on Garvey Avenue in Elsmere; and then a trailer on Amber Drive in Latonia. The Amber Drive trailer burned in a fire on May 2014, after which King no longer lived in the home, and A.S. and her brother lived with their grandmother in Crescent Springs. Hope worked full-time, and King was unemployed; he watched A.S. when Hope was at work or at the store and was alone with her often.

In 2014, King was incarcerated for arson for the burning of the Amber Drive trailer, after which A.S. was interviewed at the Child Advocacy Center ("CAC"). During that 2014 CAC interview, A.S. was asked if anyone had touched her where they should not, or if she was afraid of anyone. At that time, A.S. answered no, but she later testified that she had not disclosed King’s abuse because he had threatened to hurt her if she told anyone and she was afraid of him.

In January 2015, A.S. disclosed to her school counselor what King had done to her, and an investigation began, including a second interview at the CAC in 2015. At trial, and during the 2015 CAC interview, A.S. testified that King had started touching her genitals when the family lived in the brown trailer, when she was four, and had also showed her magazines with photographs of people with no clothing. She testified that King had forced her to touch his genitals as well, which she described as two spheres and a cylinder.

A.S. testified that the abuse continued when the family moved to Garvey Avenue, most often occurring when Hope was not at home. She testified that the abuse at the Garvey Avenue home included: King touching A.S.’s genitals when she was naked; King continuing to show A.S. pornographic magazines or videos; and King placing A.S. on the ironing board wearing only a shirt, and moving his mouth around on her genitals, continuing until Hope and A.S.’s brother returned home. No evidence was presented that King continued the abuse in the trailer on Amber Drive.

At the conclusion of the Commonwealth’s case, the trial court dismissed one of the two counts of first-degree sodomy at the Commonwealth’s request. The jury found King guilty of first-degree sodomy, and both counts of first-degree sexual abuse. The jury recommended a sentence of life imprisonment on the sodomy count, and ten years for each of the sexual abuse counts, to run consecutively for a total sentence of life. The trial court sentenced King accordingly. This appeal follows as a matter of right.

II. ANALYSIS.

King’s appeal presents five allegations of error: (A) the trial court erred in allowing duplicitous instructions on sexual abuse, which violated the unanimity requirement for jury verdicts; (B) the jury instructions on the Garvey Avenue sexual abuse subjected King to double jeopardy; (C) the trial court erred in refusing to allow defense counsel to impeach A.S.’s testimony regarding the 2015 CAC interview and in allowing improper bolstering of A.S.; (D) the trial court erred in admitting a recorded phone call as an adoptive admission; and (E) King’s sentence violates KRS 1

532.110 and KRS 532.080. We will address each of these issues in turn.

A. The Trial Court Erred in Allowing Duplicitous Instructions on Sexual Abuse, Which Violated the Unanimity Requirement for Jury Verdicts.

King first argues that the jury instructions on the two counts of first-degree sexual abuse were duplicative and rendered non-unanimous verdicts. This issue is unpreserved, and thus reviewed for palpable error. RCr 2

10.26 dictates:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

" RCr 10.26 authorizes us to reverse the trial court only upon a finding of manifest injustice. This occurs when the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable." Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015) (internal quotations and citations omitted).

A.S. testified that King committed multiple acts of sexual abuse on multiple occasions at both the Garvey and Sioux Trail (brown trailer) addresses. The jury instructions differentiated one count of first-degree sexual abuse for each residence but did not indicate which specific acts within each residence the count related.

Regarding the Garvey Avenue sexual abuse, Jury Instruction No. 5 reads:

You will find the Defendant, Ronald King, guilty of Sexual Abuse in the First Degree under this Instruction and under Count One of the Indictment, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in Kenton County on or between May 2010 and March 2013 and before the finding of the Indictment herein, he subjected A.S. to sexual contact³ at 414 Garvey Avenue;

AND,

B. That at the time of such contact, A.S. was less than twelve years of age.

The brown trailer sexual abuse, Jury Instruction No. 7, reads:

You will find the Defendant, Ronald King, guilty of Sexual Abuse in the First Degree under this Instruction and under Count Three of the Indictment and under this Instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in Kenton County on or between May 2010 and March 2013 and before the finding of the Indictment herein, he subjected A.S. to sexual contact at 119 Sioux Trail (the brown trailer);

AND,

B. That at the time of such contact, A.S. was less than twelve years of age.

King argues that under these two instructions on first-degree sexual abuse, the jury was presented with multiple instances of sexual abuse for each instruction, but that King was only charged with one count each. King argues that this instruction violates Section 7 of the Kentucky Constitution’s requirement for a unanimous verdict. Under Instruction No. 5, A.S. testified to three separate instances of inappropriate sexual contact, one that constituted sodomy, and two that constituted sexual abuse: that King touched her private with his hand when they were in her granny’s bedroom, and that King touched her bottom with his hands during the oral sodomy on the ironing board. Under instruction No. 7, A.S. testified to two episodes of inappropriate touching that occurred in the brown trailer: that King touched her private area and that he made her touch his private area.⁴

This Court has clarified that "such a scenario—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." Johnson v. Commonwealth, 405 S.W.3d 439, 449 (Ky. 2013).

Both of the counts of first-degree sexual abuse were presented to the jury with nearly identical instructions and covered the same date range. As described above, when a trial court fails to adequately distinguish one instruction from another, as is the case with these coupled instructions, a unanimous-verdict violation arises. As this Court discussed in Jenkins, the instructions were "duplicitous," i.e., not deceitful, but rather double, alleging either of two crimes in a single instruction. Jenkins v. Commonwealth, 496 S.W.3d 435, 448 (Ky. 2016). We held:

Duplicitous instructions, however, do not provide the same guarantee that all the jurors agreed as to the offense. Rather, a duplicitous instruction "allow[s] the jury to convict [the defendant] of one crime based on two separate and distinct criminal acts that violated the same criminal statute." [Kingrey ,] 396 S.W.3d at 831. In that situation, we held, the "multiple theories" analysis is inapplicable, and the duplicitous instruction "violates the requirement of a unanimous verdict," regardless of whether sufficient evidence existed of both criminal acts. Id.

In both cases, we held that the constitutional violation amounted to so manifest an injustice as to call for relief under RCr 10.26, the palpable error rule. Extending that conclusion 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."

Given the proof of two sodomies in this case, the sodomy instruction quoted above, which allowed the jury to convict on the basis of either, as though they presented merely alternative theories of a single offense, breached the rule of Johnson and Kingrey.

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