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Commonwealth of Kentucky Court of AppealsMar 9, 2018
NO. 2015-CA-001251-MR (Ky. Ct. App. Mar. 9, 2018)

NO. 2015-CA-001251-MR



BRIEFS FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky Rob Eggert Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky


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BEFORE: JOHNSON, D. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Kenneth McDonald appeals from final judgment and sentence of conviction for one count of incest following his jury trial in Jefferson Circuit Court. After careful review of the record, we find the jury instructions under which McDonald was convicted violated his right to a unanimous verdict. We therefore reverse and remand for a new trial on the single count of incest for which McDonald was convicted.

Kentucky Revised Statutes (KRS) 530.020, a Class B felony.

At the time of the events of this case, McDonald resided with his wife and three daughters in Louisville, Kentucky. McDonald's eldest daughter, A.O., was born in 1994. In June 2011, when A.O. was sixteen years old, she attended White Mills Christian Camp. During a camp discussion group, she disclosed an ongoing sexual relationship with her father. Camp counselors reported her disclosure to the dean of the camp, who then contacted child protective services. The case was assigned to the Louisville Metro Police Department's Crimes Against Children Unit. In the course of the investigation, police searched A.O.'s room and found a used condom, wrapped in toilet paper, hidden in her dresser drawer. Testing later revealed the condom contained DNA matching samples taken from McDonald and A.O. The Jefferson County grand jury thereafter indicted McDonald on four counts of incest, five counts of sexual abuse, and one count of distribution of obscene matter to minors.

At trial, A.O. testified to a continuing sexual relationship with her father, beginning when she was eleven years old, and ending only on her disclosure at camp when she was sixteen. A.O. testified the sexual contact started with her father giving her back rubs, progressing over the years to touching, masturbation, oral sex, sexual intercourse, and anal sex. She testified how sexual intercourse began when she was fourteen years old and resulted in "possibly" hundreds of sexual encounters. She further testified she and McDonald used a package of three condoms before she began taking birth control medication. A.O. also testified about an occasion wherein she fulfilled one of McDonald's fantasies; she surprised McDonald by wearing a homecoming dress in her bed before the two had intercourse.

McDonald testified as the sole witness in his defense and emphatically denied all allegations of sexual contact with A.O. McDonald asserted the incest and abuse claims were A.O.'s attempt to free herself from his overly-strict parenting style. In addition, McDonald alleged the claims were in retaliation for an incident in which A.O. was punished for sending sexually-explicit texts and photographs to a high school boyfriend. Finally, McDonald's testimony suggested A.O. could have planted the used condom, with its associated DNA evidence, in her dresser drawer.

Over the course of the approximately week-long trial, the trial court periodically discussed jury instructions with defense counsel and the Commonwealth. After the close of all evidence in the case, defense counsel made no specific objection to the language of the jury instructions, but generally objected to the instructions alleging insufficiency of the evidence. The trial court overruled the objection, finding there was enough evidence to put the matter before the jury. The trial court gave ten separate instructions relating to McDonald's alleged offenses. Relevant to this appeal, in "Instruction No. 1 - Incest," the Commonwealth in its closing argument described A.O.'s encounter with McDonald in the homecoming dress as the associated criminal act. However, the jury instruction did not specifically describe the circumstances surrounding the homecoming dress incident. The jury convicted McDonald of incest under this instruction, found him not guilty of all other charges, and fixed his sentence at sixteen years' imprisonment.

Prior to formal sentencing, McDonald moved the trial court for a new trial, arguing inter alia he was denied a unanimous verdict by the form of the jury instructions. McDonald specifically cited Martin v. Commonwealth, 456 S.W.3d 1 (Ky. 2015), as support for this argument. After hearing arguments on the motion during McDonald's formal sentencing, the trial court denied McDonald's motion, finding Martin did not apply to the facts of this case. The court also pointed out McDonald did not object to the form of the instructions when they were discussed during trial, and he should have raised Martin as an issue at that time. After denying the motion, the trial court entered judgment and sentence in accord with the jury's recommendation. This appeal followed.

McDonald asserts several issues on appeal. First, he argues the jury instructions violated his constitutional right to a unanimous verdict. Second, he argues the court improperly admitted testimony about McDonald disciplining A.O. by washing out her mouth with soap. McDonald claims this testimony related to a prior bad act for which he received no notice as required by KRE 404(b). Finally, McDonald argues the Commonwealth's personal attacks on defense counsel amounted to prosecutorial misconduct. Because McDonald's unanimity argument requires reversal and remand, we need not consider his other allegations.

Kentucky Rules of Evidence.

McDonald did not object to the jury instructions at trial on the basis of unanimity; this error is unpreserved. He requests palpable error review. "[U]npreserved allegations of defects in the instructions . . . may be accorded palpable error review under RCr 10.26." Martin, 456 S.W.3d at 6 n.6 (citation omitted). The Supreme Court of Kentucky has repeatedly "held unanimous-verdict violations to be palpable error mandating reversal." Martin, 456 S.W.3d at 8 (citing Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013), and Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013)). "Because Johnson and Kingrey were decided after an assessment of the overarching due-process implications that necessarily stem from any unanimous-verdict error, their holdings carry binding precedential weight in all unanimous-verdict error cases, the weight of the evidence against the defendant notwithstanding." Id. at 9. "[A]ll unanimous-verdict violations constitute palpable error resulting in manifest injustice." Id. at 9-10.

Kentucky Rules of Criminal Procedure.

The determinative question is whether the jury instruction at issue in this case led to a unanimous-verdict error. The instruction upon which the jury convicted McDonald, "Instruction No. 1 - Incest," read in its entirety:

You will find Defendant, Kenneth McDonald, guilty under this Instruction if and only if you believe from the evidence beyond a reasonable doubt, all of the

(a) That in Jefferson County, Kentucky, on or about the 18th day of August, 2010, through on or about the 24th day of June, 2011, Defendant engaged in sexual intercourse with [A.O.];
(b) That [A.O.] was his daughter;
(c) That he knew [A.O.] was his daughter;
(d) That at the time of such contact, [A.O.] was less than eighteen (18) years of age.
If you find Defendant, Kenneth McDonald, guilty under this Instruction, you will say so by your verdict and no more. There will be a further proceeding at which you will fix his punishment.

The trial court found this instruction did not present a unanimity error under Martin because it was the only instruction addressing vaginal intercourse, sufficiently differentiating it from other instructions. In so doing, the trial court referred to the first type of unanimity violation described in Martin, in which "multiple counts of the same offense are adjudicated in a single trial" and identical instructions for each count are submitted to the jury. Id. at 6. However, Martin also provides for a second type of unanimous-verdict error in which "a general jury verdict [is] 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." Id. at 6-7 (quoting Johnson, 405 S.W.3d at 449).

For its part, the Commonwealth conceded the trial court applied Martin, at least in part, but urged "an extension, modification or reversal of existing law" pursuant to SCR 3.130(3.1). As briefed to us, the Commonwealth contends the proof adduced at trial only amounted to one specific instance of sexual intercourse during the time period described in the instruction—the incident involving the homecoming dress. In the Commonwealth's view, because no other instance of sexual intercourse was specifically described, there could be no unanimity error. Therefore, McDonald's conviction should be allowed to stand. In addition, the Commonwealth contends any instructional error should not be deemed automatically palpable, which appears to be a reformulation of the argument it made to the trial court urging reversal of Martin. Finally, the Commonwealth contends inclusion of non-statutory language in a jury instruction contravenes precedent and Kentucky's tradition of "bare bones" jury instructions.

Rules of the Supreme Court. --------

The Commonwealth's arguments are riddled with flaws. First and foremost, in response to McDonald's motion for new trial in the trial court, the Commonwealth did not assert the homecoming dress episode was the only specific incident fitting the jury instruction. Indeed, the Commonwealth's response focused explicitly on the presence of DNA on the condom and did not mention the homecoming dress at all, stating:

That the jury acquitted Defendant on all counts covering sexual acts that were not specifically linked with the condom leaves no reasonable doubt that the jury was unanimously convicting Defendant for the sexual intercourse during which the condom introduced into evidence was used.

In its brief to this Court, however, the Commonwealth shifts its focus to the homecoming dress incident—which was not connected to the discovered condom by any testimony or other evidence. The Commonwealth acknowledges this point in its brief, stating "A.O. never specifically testified regarding the sexual intercourse encounter involving this condom." Based on proof presented at trial, some jurors could have convicted McDonald based on the homecoming dress incident, while others may have convicted McDonald based on the condom and its associated DNA evidence. Some jurors may have convicted based upon both. This is a classic example of a unanimous-verdict violation in which "the evidence equally suggests the commission of two or more similar crimes[.]" Ruiz v. Commonwealth, 471 S.W.3d 675, 678 (Ky. 2015).

Next, the Commonwealth takes issue with how defense counsel did not comment on Martin when the jury instructions were discussed, allowing the court to proceed with potentially-erroneous instructions. The Commonwealth argues courts should not condone such behavior and cites Martin's dissent, warning such strategies would be forthcoming: "[w]e are watering down our palpable error standard with holdings such as this to the point that it behooves the defense lawyer not to object on jury instructions and just allow the trial court to walk—unwarned—onto the unanimity land mine." Martin, 456 S.W.3d at 18 (Keller, J., dissenting) (quoting Cunningham, J., dissenting in Johnson, 405 S.W.3d at 461). Although we understand the Commonwealth's frustration, we cannot deviate from Martin's holding. "The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." Matlock v. Commonwealth, 344 S.W.3d 138, 139 (Ky. App. 2011) (quoting SCR 1.030(8)(a)).

Finally, the Commonwealth cites Wright v. Commonwealth, 391 S.W.3d 743 (Ky. 2012), as modified on denial of reh'g (Feb. 21, 2013), asserting including non-statutory language in a jury instruction is contrary to precedent and violates Kentucky's tradition of "bare bones" instructions, which are then "fleshed out" by the closing arguments of counsel. We disagree with the Commonwealth's interpretation and application of Wright to unanimous-verdict errors. Our Supreme Court reversed Wright because the trial court did not define "unmarried couple," a statutorily-defined term and element of domestic violence alleged in that case. Id. at 749. Instructions should include language tailored to reflect the specific evidence adduced at trial, so long as the non-statutory language does not conflict with statutes. "Instructions must be based upon the evidence and they must properly and intelligibly state the law." Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981) (emphasis added), cited with approval in Wright, 391 S.W.3d at 746. Furthermore, contrary to the Commonwealth's argument, instructions containing unanimity errors may not be corrected by counsel's closing arguments. "[T]he arguments of counsel are not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions." Harp v. Commonwealth, 266 S.W.3d 813, 820 (Ky. 2008) (emphasis added).

Based on these precedents, we conclude McDonald's conviction falls squarely into Martin's second category of unanimity error, "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." Martin, 456 S.W.3d at 6-7 (quoting Johnson, 405 S.W.3d at 449). The instruction at issue here described criminal conduct only by what occurred over a period of approximately ten months, from August 2010 to June 2011. A.O. testified to a continuing pattern of criminal activity occurring during this time period, including the condom recovered from A.O.'s dresser and the homecoming dress incident. Our Supreme Court considered a similar factual scenario in Ruiz.

Significantly, as the crimes are phrased in these instructions, the jury is not directed to consider a specific, uniquely identifiable event (such as, at a particular place or time, near a notable date, while wearing particular clothing, or while attending a particular birthday or other such event, etc.). Instead, the instructions, without any other particularized distinction, broadly refer to the five month period of July 1, 2012, and November 25, 2012. Such phrasing poses no problem when the evidence itself relates only to a single, unambiguous occurrence; but when the evidence equally suggests the commission of two or more similar crimes, the potential for unanimous verdict problems arise.

471 S.W.3d at 678. Ruiz reversed and remanded for new trial based on finding a unanimous-verdict error. Id. at 679. In another case, our Supreme Court reversed a sodomy conviction when the jury instructions "did not provide any specifics about the events surrounding the charged conduct. Rather, they merely provided a four-year time span during which the events could have taken place." Sheets v. Commonwealth, 495 S.W.3d 654, 663 (Ky. 2016). Therefore, based on Martin and its progeny, the conviction in the case sub judice must be reversed and remanded due to the unanimous-verdict violation contained in the single instruction on which the jury convicted McDonald.


For the foregoing reasons, we reverse the Jefferson Circuit Court's judgment of conviction and sentence and remand for a new trial on the single count of incest for which McDonald was originally convicted.

Louisville, Kentucky Rob Eggert
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky

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