Ward v. Commonwealth, 2018-SC-000056-MR

• Decision Date: 31 October 2019
• Docket Number: 2018-SC-000056-MR
• Citation: 587 S.W.3d 312
• Parties: Benjamin Dwayne WARD, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

587 S.W.3d 312

Benjamin Dwayne WARD, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2018-SC-000056-MR

Supreme Court of Kentucky.

OCTOBER 31, 2019

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

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Micah Brandon Roberts, Assistant Attorney General.

OPINION OP THE COURT BY CHIEF JUSTICE MINTON

A Boone County jury found Benjamin Dwayne Ward guilty of three counts of first-degree sexual abuse, two counts of third-degree rape, four counts of third-degree sodomy, one count of use of a minor in a sexual performance, and two counts of possession of matter portraying a sexual performance by a minor. For these crimes, Ward was sentenced to 70 years' imprisonment. Ward now appeals the resulting judgment as a matter of right,¹ raising several allegations of trial court error. Finding that the trial court erred by not striking one of the jurors for cause, Ward’s conviction must be reversed.

I. BACKGROUND.

The victim moved in with her father when she was eight years old after her parents divorced. The victim, her siblings, her father, and her step-mother lived together near Ward and his wife, Cindy. The families became friends and often spent time together.

When the victim was around 11 or 12 years old, she began spending more time at the Wards' house, usually without her siblings. The Wards were truck drivers and spent much of their time away from home. But when the Wards were home, the victim was frequently there with them.

Initially, Ward behaved as a father figure toward the victim, but his attraction to her became sexual. Ward began to embrace her and touch her and refer to her as "his little girlfriend."

Ward bought the victim gifts, including a pair of expensive boots, jewelry, and clothes, and gave her a credit card. Ward devised a scheme to give gifts to the victim without Cindy’s knowledge. To that end, Ward would leave the gifts in his truck and inform the victim he had left a gift for her. The victim would then sneak out at night and retrieve them.

The first instance of sexual touching occurred when the victim was about 11-years-old. Ward started rubbing the victim’s pants, which led to him using his hand to rub the victim’s vagina over her pants. Ward also kissed the victim on the lips and touched her breasts and buttocks. Another instance of sexual touching occurred in Ward’s pickup truck. Ward would often pick the victim up a few streets away from their houses and drive her to school. On one occasion in the truck, Ward rubbed the victim’s vagina with his hand, then started kissing her, which led to him almost driving off the road. Yet another instance of sexual touching occurred when the victim was sitting on Ward’s lap in a computer chair, where he rubbed the victim’s vagina over her pants.

The first time Ward had sexual intercourse with the victim was when they were in a room in the Ward residence called the "bat cave." The victim was between 12 and 14-years-old at the time. Ward asked for sex, and the victim replied, "You're my boyfriend. Sure." Ward then engaged in sexual intercourse with the victim, but he stopped after she began crying because of the pain. The second time Ward had intercourse with the victim was when they were in Ward’s basement. The victim testified that she was about 13-years-old at this time. Again, Ward stopped engaging in intercourse with her after she started crying because of the pain.

Ward also caused the victim to perform oral sex on him. One instance occurred in the "bat cave" when the victim was either 13 or 14-years-old. Another instance occurred either in the "bat cave" or in the basement of the Ward residence. A third instance occurred outside after Ward asked the victim to sneak outside and meet him, which she did after Ward begged for an hour.

Ward and the victim often engaged in sexting. On one occasion, Ward told the victim that he was upset about something and needed the victim to cheer him up, asking the victim to send him nude photos. The victim complied and sent him four nude photos.

Cindy eventually suspected impropriety between Ward and the victim. Cindy began to find the victim alone with Ward in the Ward residence. On one occasion, Cindy found the victim clad only in her underwear asleep on the futon in the "bat cave." Cindy eventually learned of the gifts Ward had been leaving for the victim in his truck.

The victim’s father and step-mother discovered a letter written by her that claimed she was in a romantic relationship with Ward. That same month, the Northern Kentucky Children’s Advocacy Center interviewed the victim. She told the advocacy center that she and Ward were engaged in a "romantic relationship" and that they would communicate via Facebook. During the interview, the victim explicitly and repeatedly denied any physical contact or sexual activity with Ward. The victim also stated that she had written the letter because she was angry at Ward for not buying her an iPad. Following a second interview, the sheriff’s department determined that the victim was "out of control" because of her tumultuous family situation but insufficient evidence was available to proceed with a criminal investigation.

Soon thereafter, Cindy received a sexually explicit text message from Ward that was intended for the victim. In the text message, Ward communicated his desire to perform oral sex on the victim. When confronted, Ward and the victim both claimed that they had never engaged in a sexual act together.

One night, while Ward and Cindy were watching a movie in the "bat cave," Cindy turned to see Ward looking at his phone. Cindy then noticed Ward squirming in his seat and rubbing his penis. When Cindy viewed Ward’s phone, she became aware that Ward was engaged in a live video chat with the victim in which the victim was nude and displaying her genitals.

Cindy called the sheriff, stating that she had just witnessed her husband watching on his phone a live video of a naked minor. Cindy provided the officers with several pieces of paper that she had found in the trash containing sexually explicit drawings and references to the victim, presumably created by Ward. The victim testified that Ward used these drawings to communicate silent sexual conversations with her and give her directions over video. After Cindy’s report, the sheriff’s department arranged for Cindy to attempt a recorded, controlled phone call with Ward.

During the call, Cindy repeatedly asked Ward for details on the live-stream video incident she witnessed and for details of his relationship with the victim. Ward stated that the victim approached him and that they had engaged in sexting. As the call with Cindy continued, the couple argued, with Cindy making accusations and Ward issuing repeated denials. Ward stated he was going to set the house on fire, to which the sheriff’s department responded by sending two officers to secure the residence.

Following the officers' securing and searching the residence, one of the officers interviewed the victim. The victim stated that she and Ward had sexted several times, but she denied any physical, sexual contact between them. Following this interview, investigators took no further action for six months while waiting on a full analysis of all electronic devices seized during the search of the Ward residence.

Finally, the victim had a third interview with the Northern Kentucky Children’s Advocacy Center. The victim said that she was in a "healthy, normal relationship" with a young man her own age who encouraged her to tell her full story. The victim then admitted that she and Ward had engaged in sexual acts together. The victim described how the relationship began when she was around 11 years old and continued until she was 15 years old. The victim said that she had become infatuated with Ward and considered him her boyfriend. She then described the events recounted above. Based on this interview, the Commonwealth brought charges against Ward that led to his indictment.

At trial, the jury found Ward guilty of three counts of first-degree sexual abuse, two counts of third-degree rape, four counts of third-degree sodomy, one count of use of a minor in a sexual performance, and two counts of possession of matter portraying a sexual performance by a minor. For these convictions, Ward was sentenced to a total of 70 years' imprisonment. And the trial court entered judgment accordingly. This appeal followed.

II. ANALYSIS.

A. The trial court did not err in denying Ward’s motion to dismiss the indictment or, in the alternative, to disqualify the Commonwealth Attorney’s Office and Sheriff's Department.

1. Ward's recorded phone calls from jail included privileged attorney-client communications.

Ward first challenges as error the trial court’s denial of his motion to disqualify the Office of the Commonwealth’s Attorney for the 54th Judicial Circuit and the Boone County Sheriff’s Department for violating his right to privileged attorney-client communication. The background for this motion was the fact that the Commonwealth’s Attorney’s office and the sheriff’s office reviewed recordings of all telephone calls Ward made from the jail while incarcerated pretrial. The basis for this motion was the fact that among those recordings were several conversations about trial strategy between Ward and his defense counsel. This issue is preserved for our review.

"Any prosecuting attorney may be disqualified by the court ... upon a showing of actual prejudice."² We review a trial court’s denial of a defendant’s motion to disqualify a prosecutor for abuse of discretion.³ "The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."⁴

Ward moved to disqualify the Commonwealth’s Attorney’s Office and the Boone County Sheriff’s Office after he received from the Commonwealth through pretrial discovery recordings of telephone calls Ward made from jail...