Young v. Com., No. 97-SC-32-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtCOOPER; STEPHENS; STUMBO
Citation968 S.W.2d 670
PartiesJohn Edison YOUNG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Docket NumberNo. 97-SC-32-MR
Decision Date21 May 1998

Page 670

968 S.W.2d 670
John Edison YOUNG, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 97-SC-32-MR.
Supreme Court of Kentucky.
May 21, 1998.

Page 671

Daniel T. Goyette, Frank Wm. Heft, Jr., Jefferson District Public Defender, Louisville, for Appellant.

A.B. Chandler, III, Attorney General, Matthew D. Nelson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for Appellee.

COOPER, Justice.

Appellant was convicted in the Jefferson Circuit Court of three counts of criminal attempt to commit unlawful transaction with a minor in the first degree and of being a persistent felony offender in the first degree. He received three enhanced sentences of twenty years each, which were ordered to be served consecutively for a total of sixty years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

The underlying offenses occurred in April 1996, at which time the three male victims were all less than twelve years of age. P.C., age eleven, testified that he had two encounters with Appellant. The first occurred when Appellant approached him in a wooded area near the Marydale Ball Park, asked him his name, and asked him if he would stay in the woods "and have sex with me." P.C. refused to identify himself, declined Appellant's invitation to "have sex," and ran back to the ball park. P.C. reported the incident to an "umpire" at the ball park, but when they went back into the woods, Appellant had disappeared.

The second incident occurred a week or two later when Appellant approached P.C. near the apartment complex where P.C. lived with his mother and step-father. According to P.C., Appellant asked him "the same thing." P.C. again refused and ran home to tell his mother, who reported the incident to the police.

R.R., also age eleven, testified that he and four other boys, including his brother, K.R., were playing baseball at the Marydale Ball Park when Appellant approached the group and suggested that they build a new clubhouse in the woods. The group followed Appellant to the site of an old clubhouse, where Appellant told them that he was a "priest" and talked about his two children "doing it to each other." R.R. assumed this to mean that Appellant's children "had sex" with each other. Appellant then asked R.R. if he and his brother wanted to "do it with each other." R.R. refused.

K.R., age ten, also related the incident which occurred when the group of boys followed

Page 672

Appellant into the woods. He recalled that Appellant asked him "to do it with my brother," which K.R. interpreted to mean engage in anal sodomy. Appellant also told him that he (Appellant) had a "man lover" and "that his sons did, too ." R.R. and K.R. reported the incident to their mother, who called the police. Following an investigation, Appellant was arrested on April 22, 1996.

I. SUFFICIENCY OF THE EVIDENCE.

Appellant first argues that while this evidence might have sustained convictions of criminal solicitation of an offense, KRS 506.030, mere words are insufficient to support convictions of criminal attempt to commit an offense, KRS 506.010. He does not assert that he was entitled to or desired instructions on criminal solicitation. Defense counsel specifically declined to request such instructions at trial. Thus, the inquiry is not whether the evidence would support convictions of criminal solicitation, but whether it will support the convictions of criminal attempt which were obtained in this case. We note at the outset that if the same act may constitute either of two offenses, the grand jury may elect to indict on either and the other is not considered a lesser included offense. Davidson v. Commonwealth, Ky., 436 S.W.2d 495 (1968); Taylor v. Commonwealth, Ky., 384 S.W.2d 333 (1964); Commonwealth v. Tobin, 140 Ky. 261, 130 S.W. 1116 (1910).

A. Unlawful Transaction with a Minor in the First Degree.

KRS 530.064(1) describes the underlying offense as follows:

A person is guilty of unlawful transaction with a minor in the first degree when he knowingly induces, assists or causes a minor to engage in illegal sexual activity except those offenses involving minors in KRS Chapter 531 and KRS 529.030.

If the minor is less than eighteen years of age, the offense is a Class C felony; if he or she is less than sixteen years of age, it is a Class B felony. KRS 530.064(2). Of course, all three minors in this case were less than sixteen years of age. None of the elements of this offense are statutorily defined. However, "induce" is considered synonymous with "persuade" and "prevail." Webster's Third New International Dictionary 1154 (Merriam-Webster 1993). In interpreting a similar statute, the Supreme Judicial Court of Maine held in State v. Miller, 252 A.2d 321 (Me.1969) that:

The term induce signifies a successful persuasion; that the act has been effective and the desired result obtained. State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934); Hautau v. Kearney & Trecker Corporation, 179 F.Supp. 490 (E.D.Mich.1959); Vol. 21 Words and Phrases, Permanent Ed., p. 481. The charge of inducing one to take indecent liberties means that the persuasion has resulted in the doing of the indecent act.

Id. at 325.

To "engage" denotes action and means "to employ or involve one's self; to take part in." Black's Law Dictionary 528 (6th ed.1990). Thus, to complete the offense, the minor must consent to and actively participate in the activity. Since KRS 530.064(1) does not define "illegal sexual activity," except to exclude those activities proscribed by KRS 529.030 (prostitution) and KRS Chapter 531 (pornography and sexual exploitation of minors), other sections of the penal code must be examined to identify which sexual activities are illegal. Except in a case of incest, KRS 530.020, consensual sexual activity between persons over the age of sixteen is not illegal in Kentucky. KRS 510.020(3)(a); Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992). On the other hand, any sexual activity with a child less than twelve years of age...

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  • Phon v. Com. of Ky., 2016-SC-000468-DG
    • United States
    • Kentucky Supreme Court
    • 26 Abril 2018
    ...which would fulfill the statutory maximum." Id. (citing Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky. 2006) and Young v. Commonwealth, 968 S.W.2d 670 (Ky. 1998) ). Thus, the Court determined it was "necessary for the trial court to fashion a new sentence which" did not violate t......
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 Junio 2004
    ...concurrently for a total of twenty years, the maximum aggregate sentence allowable under KRS 532.110(1)(c). Young v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendley v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). However, because the jury also found Appellant to be a persistent fel......
  • Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Junio 2004
    ...concurrently for a total of twenty years, the maximum aggregate sentence allowable under KRS 532.110(1)(c). Young v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendley v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). However, because the jury also found Appellant to be a persistent fel......
  • Matheney v. Com., No. 2002-SC-0920-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 23 Marzo 2006
    ...less deference under stare decisis); Matthews v. Commonwealth, 163 S.W.3d 11, 26-27 (Ky.2005) (overruling in part Young v. Commonwealth, 968 S.W.2d 670 (Ky.1998)); Commonwealth v. Mobley, 160 S.W.3d 783, 787 (Ky.2005) (overruling in part Mash v. Commonwealth, 769 S.W.2d 42 (Ky.1989)); St. C......
  • Request a trial to view additional results
30 cases
  • Phon v. Com. of Ky., 2016-SC-000468-DG
    • United States
    • Kentucky Supreme Court
    • 26 Abril 2018
    ...which would fulfill the statutory maximum." Id. (citing Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky. 2006) and Young v. Commonwealth, 968 S.W.2d 670 (Ky. 1998) ). Thus, the Court determined it was "necessary for the trial court to fashion a new sentence which" did not violate the aggregate ma......
  • Parson v. Com., No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 Junio 2004
    ...concurrently for a total of twenty years, the maximum aggregate sentence allowable under KRS 532.110(1)(c). Young v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendley v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). However, because the jury also found Appellant to be a persistent fel......
  • Parson v. Commonwealth, No. 2002-SC-0103-MR (KY 6/21/2004), No. 2002-SC-0103-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Junio 2004
    ...concurrently for a total of twenty years, the maximum aggregate sentence allowable under KRS 532.110(1)(c). Young v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendley v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). However, because the jury also found Appellant to be a persistent fel......
  • Matheney v. Com., No. 2002-SC-0920-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 23 Marzo 2006
    ...less deference under stare decisis); Matthews v. Commonwealth, 163 S.W.3d 11, 26-27 (Ky.2005) (overruling in part Young v. Commonwealth, 968 S.W.2d 670 (Ky.1998)); Commonwealth v. Mobley, 160 S.W.3d 783, 787 (Ky.2005) (overruling in part Mash v. Commonwealth, 769 S.W.2d 42 (Ky.1989)); St. C......
  • Request a trial to view additional results

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