Kingrey v. Commonwealth

• Decision Date: 25 April 2013
• Docket Number: No. 2010–SC–000784–MR.,2010–SC–000784–MR.
• Citation: 396 S.W.3d 824
• Parties: Troy KINGREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

396 S.W.3d 824

Troy KINGREY, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000784–MR.

Supreme Court of Kentucky.

April 25, 2013.

Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.

Jack Conway, Attorney General of Kentucky, Micah Brandon Roberts, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, for Appellee.

Opinion of the Court by Chief Justice MINTON.

A circuit court jury convicted Troy Kingrey of one count of use of a minor under the age of 16 in a sexual performance and six counts of use of a minor under the age of 18 in a sexual performance. In accordance with the jury's recommendation, the trial court sentenced Kingrey to a total of 25 years' imprisonment. He now appeals as a matter of right,¹ contending that (1) (1) the trial court erroneously denied his motion for a mistrial, and (2) one of the jury instructions denied him a unanimous verdict. Because we find merit to Kingrey's second argument, we reverse Kingrey's conviction and sentence for use of a minor under the age of 18 in a sexual performance as to victim Sophia ² and remand for further proceedings. We affirm the remainder of Kingrey's convictions and sentences.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Kingrey hosted a party for his 16–year–old daughter, Emma, and her friends. He rented a party venue and purchased a large volume of vodka. Except for Kingrey, who was 34 years old at the time, everyone attending the party was under 18 years of age. He set one rule for the party—anyone who arrived at the party a virgin had to leave a virgin.

A truth-or-dare game arose at the party. An intoxicated Kingrey was in charge of the game. He drew from a deck of cards, and the color of the card drawn required a player either to accept a dare or tell a truth; and the higher the value of the card, the more extreme the dare. Most of the dares were sexual in nature, and Kingrey offered $50 to the winner.

As part of this truth-or-dare game, several of the teenagers at the party undressed, including Emma and Kingrey's 16–year–old niece, Sophia. While naked, Sophia received a lap dance from another girl. Sophia also performed oral sex on her boyfriend. Jacob and Alex each performed oral sex on the other. Ryan completed a dare to remove all of his clothing. James accepted a dare to streak nude and kiss another person at the party. Emma removed her top so that her chest was bare, and Kingrey dared her to sit in Ethan's lap and have Ethan hold her breasts.³

Several months after the party, Emma and Sophia ran away from home. When located by Florida authorities, the girls said they ran away because of what transpired at the party. Sophia also told authorities of an event involving Kingrey, herself, and her former boyfriend, Blake.⁴ At trial, Blake testified to this event, which occurred when he was 14 years old and Sophia was 15 years old. Kingrey had brought Blake and Sophia home from a family reunion when he asked Sophia to model bra and underwear sets. Sophia complied and also walked around in the nude while Blake and Kingrey watched. Kingrey then gave the two teenagers a condom and told them to have fun.

At trial, Sophia testified to substantially different events, claiming that she gave a false statement to the authorities because she was angry with Kingrey. She denied that she was naked in front of Kingrey and denied that Kingrey asked her to take her clothes off that day. She also testified that Kingrey advised her that having sex “was not the best thing”; but if she was going to have sex with Blake, she needed to use a condom.

The grand jury indicted Kingrey on one count of use of a minor under the age of 18 in a sexual performance. Later, the grand jury returned a superseding indictment charging Kingrey with two counts of use of a minor under the age of 16 in a sexual performance ⁵ and six counts of use of a minor under the age of 18 in a sexual performance. The jury convicted Kingrey of one count of use of a minor under the age of 16 in a sexual performance as to victim Jacob and six counts of use of a minor under the age of 18 in a sexual performance as to victims Emma, Sophia, Alex, Ethan, Ryan, and James. The jury recommended 10 years' imprisonment on the count relating to Jacob, 10 years' imprisonment on the count relating to Emma, and 5 years' imprisonment on each of the five remaining counts. The jury recommended that the five 5–year sentences run concurrently with each other but consecutively with the two 10–year sentences, for a total of 25 years' imprisonment. The trial court sentenced Kingrey in accordance with the jury's recommendation.

II. ANALYSIS.

Kingrey raises two issues on appeal. He contends that (1) the trial court erroneously denied his motion for a mistrial, and (2) the jury instruction on the count regarding victim Sophia denied him a unanimous verdict because it failed to distinguish factually two alleged criminal acts.

A. The Trial Court Properly Denied Kingrey's Motion for Mistrial.

Kingrey argues that a statement made at trial by Cabinet for Health and Family Services (CHFS) investigator Erin Morgan concerning allegations of sexual abuse was improper under Kentucky Rules of Evidence (KRE) 403⁶ as unduly prejudicial and under KRE 404(b)⁷ as bad-character evidence to show propensity. He claims the trial court abused its discretion by denying his motion for a mistrial, and Morgan's additional testimony did not cure the error.

Before trial, the trial court granted Kingrey's motion in limine to exclude mention of allegations that he had a sexual relationship with Emma and Sophia. At trial, the Commonwealth asked Morgan if she received a referral regarding Sophia and Emma and what the allegations were. Morgan responded that there were several allegations, including some “allegations of some possible sexual abuse by—.” Defense counsel objected and moved for a mistrial before Morgan completed her sentence.

At the ensuing bench conference, the Commonwealth offered to elicit testimony from Morgan that an accusation does not mean an allegation is true and that the charges of sexual abuse were not substantiated. The defense stated that if the trial court would not grant a mistrial, the witness should testify that the allegations were unfounded. The trial court denied Kingrey's motion for a mistrial and instructed the Commonwealth to question Morgan accordingly. Morgan then testified that a sexual abuse allegation may not be true, the purpose of an investigation is to determine the truth of an accusation, and that the allegation that Sophia and Emma were sexually abused was unsubstantiated.

The Commonwealth admits that Morgan's testimony regarding the sexual abuse allegations was improper. So, for our analysis, we assume that the testimony was improper. But “a trial court's decision to deny a motion for mistrial will not be disturbed absent an abuse of discretion.” ⁸ “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” ⁹ We find that the trial court did not abuse its discretion in denying Kingrey's motion for a mistrial.

A mistrial is an extraordinary remedy that “should only be granted where there is a ‘manifest necessity for such an action or an urgent or real necessity.’ ” ¹⁰ Mistrial should only be “used in those situations where an error of such import has been committed that a litigant's right to a fair and impartial jury would be violated if a new trial were not held.” ¹¹ A new trial is not warranted if the evidentiary error is harmless. The improper introduction of prior-bad-acts evidence is harmless when the judgment was not substantially swayed by the error.¹² This Court must look at all of the evidence to determine whether the defendant has been unduly prejudiced by the improper testimony. ¹³ We also note that if inadmissible prior-bad-acts evidence is introduced and the defendant requests a jury admonition, the trial judge should provide it.¹⁴ An admonition to the jury may be sufficient to cure the error.¹⁵

Assuming that Morgan's testimony was improper, the error was harmless. Morgan never mentioned Kingrey's name in connection with the allegations of sexual abuse. The testimony concerning sexual abuse was isolated, and the Commonwealth did not try to use Morgan's statement to Kingrey's detriment. On the contrary, the Commonwealth elicited testimony from Morgan that helped limit any prejudice that may have occurred if the jury assumed that the sexual abuse allegations involved Kingrey. And any improper implication that Kingrey sexually abused the teenagers could have been cured by an admonition had Kingrey asked for one. Kingrey received the relief he requested in lieu of a mistrial; and although it was not in the form of an admonition,it reduced the limited prejudice that may have occurred.

We cannot say that the defendant was unduly prejudiced by Morgan's statement, especially considering the vast evidence presented by a multitude of witnesses at trial and Kingrey's own admissions to CHFS.¹⁶ Because the admission of Morgan's statement was harmless, a mistrial was not warranted. And the trial court did not abuse its discretion in denying Kingrey's motion for a mistrial.

B. The Jury Instruction for Use of a Minor Under the Age of 18 in a Sexual Performance as to Sophia Violated Kingrey's Right to a Unanimous Verdict.

The jury instruction for use of a minor under the age of 18 in a sexual performance as to victim Sophia required the jury to find that Kingrey committed the crime between January 1, 2007, and May 31, 2008.¹⁷ This time frame included the date of the party and the date of the incident with Kingrey, Sophia, and Blake. Kingrey argues that this combination jury instruction denied him a unanimous verdict because it failed to differentiate factually between the alleged instances of sexual...