                                                CORRECTED : OCTOBER 27, 2008
                                                 RENDERF-D:4,- OBER     2
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                 VUyume Caurf of
                                 2007-SC-000288-MR




                      ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                     HONORABLE GEOFFREY P. MORRIS, JUDGE
                                NO. 06-CR-000714


COMMONWEALTH OF KENTUCKY                                                           APPELLEE


                      MEMORANDUM OPINION OF THE COURT

                            AFFIRMING IN PART AND
                       REVERSING AND REMANDING IN PART


                                 i . INTRODUCTION .

         Wilbert Harp appeals as a matter of right' from his convictions for indecent

exposure, first-degree sodomy, and seven counts of first-degree sexual abuse.

Because the jury instructions on the seven sexual abuse counts were identical,

containing no identifying characteristics that required the jury to differentiate

among each of the counts, we reverse Harp's sexual abuse convictions . We

otherwise affirm Harp's indecent exposure or sodomy convictions .


                     II. FACTUAL AND PROCEDURAL HISTORY.

        Harp moved in with his girlfriend and her four-year-old daughter, B .B .

According to B.B ., Harp began sexually molesting her sometime after they all


     Ky. Const . § 110(2)(b).
 moved to a different apartment several months later.       According to B.B., Harp

 engaged in a variety of sexual acts with her while her mother was at work. B.B .

 eventually disclosed the incidents to her mother, but the mother took no action at

 that time because Harp assured the mother that nothing improper was occurring .

        While B.B . and her aunt were looking at a magazine that contained an

 advertisement depicting a couple kissing, B .B. told the aunt that Harp had done

the same thing to her. The aunt reported B .B.'s statements, which eventually led

to Harp's being questioned by the police. Harp admitted inappropriate contact

with B .B . but blamed the contact on B .B .'s curiosity about sex. After being

admitted to a psychiatric hospital, Harp wrote a letter to his psychologist

describing sexual contact with B .B. but, again, blaming B .B. for the contact .

       Harp was ultimately indicted for one count of first-degree sodomy, seven

counts of first-degree sexual abuse, and one count of indecent exposure . A jury

convicted Harp on all charges contained in the indictment . Harp was sentenced

to twenty-five years for the sodomy conviction ; two and one-half years'

imprisonment on each sexual abuse conviction ; and ninety days for the indecent

exposure conviction, all to run concurrently . This appeal followed .


                                    Ill. ANALYSIS .

       Harp raises six issues . He contends that the trial court erred by

(1) admitting the letter he wrote to his psychologist, (2) admitting evidence of

sexual contact with B .B . not charged in the indictment, (3) finding B .B . competent

to testify, (4) allowing improper bolstering of B.B.'s testimony, (5) failing to direct

a verdict on the indecent exposure charge, and (6) failing to instruct the jury
 properly because the instructions on multiple counts of first-degree sex abuse

failed to require the jury to make separate factual findings and reach a

unanimous verdict on each count.

           Because we agree with Harp that the jury instructions regarding the sexual

abuse charges were erroneous, we shall discuss that issue first. Since the

flawed sexual abuse instructions caused Harp no discernible prejudice in the

sodomy and indecent exposure convictions, we affirm those convictions . We

must also address the remaining issues because they are either pertinent to the

sodomy or indecent exposure convictions, or concern matters likely to arise upon

remand of the sexual abuse charges.

                     A. Trial Court Committed Reversible Error in
                        Failing to Add Distinguishing Characteristics
                        to Each Sexual Abuse Charge.

       Harp argues that it was error for the trial court not to add language to each

of the seven sexual abuse instructions so that the jury would be required to

distinguish from the evidence one count from another . We agree .

       Each sexual abuse instruction was identical and read, in pertinent part, as

follows:

       You will find the defendant, Wilbert Hiatt Harp, guilty under this
       instruction if you believe from the evidence beyond a reasonable
       doubt, all of the following:

       (a)     That in this county, between the 1 st day of December 2003
               and the 1 st day of February 2006, the defendant subjected
               [B .B.] to sexual contact ;

       AND

       (b)     That at the time of such contact, [B.B.] was less than 12 years
               of age .
       We have previously held that "when multiple offenses are charged in a

single indictment, the Commonwealth must introduce evidence sufficient to prove

each offense and to differentiate each count from the others, and the jury must

be separately instructed on each charged offense . Q Thus, we have clearly

held-before Harp's trial-that a trial court errs in a case involving multiple

charges if its instructions to the jury fail "factually [to] differentiate between the

separate offenses .,,3 Very recently-after Harp's trial-we similarly reinforced

that holding by again explaining that "[w]hen the evidence is sufficient to support

multiple counts of the same offense, the jury instructions must be tailored to the

testimony in order to differentiate each count from the others . ,4

       Based on this precedent, it is apparent that the trial court erred by

submitting seven identical sexual abuse instructions to the jury. We again

instruct the bench and bar of the Commonwealth that in a case involving multiple

counts of the same offense, a trial court is obliged to include some sort of

identifying characteristic in each instruction that will require the jury to determine

whether it is satisfied from the evidence the existence of facts proving that each

of the separately charged offenses occurred .

       Having found that the instructions at issue were erroneous, we now turn to

the more difficult question of whether that error may be deemed harmless .

   Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002).
   Combs . v. Commonwealth, 198 S.W.3d 574, 580 (Ky. 2006).
   Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008). Accord State v. Rudd,
   759 S.W.2d 625, 630 (Mo .App. 1988) ("We agree with the general proposition that if
   multiple offenses are submitted against a single defendant, the different offenses
   submitted should be distinguished . As much is inherent in the well established rule
   that the giving of distinctive instructions is a proper method of submitting multiple
   offenses .").
    Despite our earlier statements seemingly to the contrary, we now hold that a

 failure to include proper identifying characteristics in jury instructions is reversible

 error, provided that a timely objection to the error has been made .

         . We recognize, of course, that an erroneous jury instruction may

 sometimes be an unfortunate, yet ultimately harmless error.5 But a party

 claiming that an erroneous jury instruction, or an erroneous failure to give a

necessary jury instruction, bears a steep burden because we have held that "[i]n

this jurisdiction it is a rule of longstanding and frequent repetition that erroneous

instructions to the jury are presumed to be prejudicial ; that an appellee claiming

harmless error bears the burden of showing affirmatively that no prejudice

resulted from the error. ,6 Regrettably, we have sometimes failed to utilize the

presumption of prejudice associated with erroneous jury instructions in at least

some of our recent decisions .' However, to clear up any possible confusion

among the bench and bar of the Commonwealth, we now expressly return and

adhere to the presumption of prejudice inherent in an erroneous instruction as

expressed in McKinnev . Of course, that presumption can be successfully



5
      See, e.g., Neder v. United States, 527 U.S. 1, 15, 119 S .Ct. 1827, 144 L.Ed.2d 35
      (1999) (finding omission of element of offense in jury instruction harmless error);
      RCr 9.24.
s
      McKinnev v .Heisel , 947 S.W.2d 32, 35 (Ky. 1997). We recognize that McKinnev is a
      civil case . But we believe the heightened stakes of a criminal case must lead to at
      least an equally, if not more rigorous, approach to harmless error in jury instructions .
      Indeed, McKinney's proper approach to jury instruction errors has been recognized
      in criminal cases . See Batts v. Commonwealth, 2005 WL 3500779 at *3 (Ky.
      Dec. 22, 2005); Wilson v. Commonwealth , 2004 WL 2624155 at *3 (Ky. Nov. 18,
      2004); Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky.App. 2000).
      See, e.g., Thacker v. Commonwealth , 194 S.W.3d 287, 291 (Ky. 2006); Wright v.
      Commonwealth , 239 S.W.3d 63,68 (Ky. 2007).
    rebutted by showing that the error "did not affect the verdict or judgment. ,8 But

 viewed through that proper procedural lens, the erroneous instructions in the

 case at hand cannot be deemed harmless.

           Our precedent of longstanding leaves no doubt that we have adhered to

the "bare bones" principle of jury instructions .9 Indeed, former Chief Justice

 Palmore apparently coined the "bare bones" phrase in a 1974 civil case, although

the phrase has been similarly applied to criminal cases.° We have explained

this bare bones approach to instructions as meaning that as a general matter,

"evidentiary matters should be omitted from the instructions and left to the

lawyers to flesh out in closing arguments ."" Or, as we more recently explained,

jury instructions should tell the jury what it must believe from the evidence in

order to resolve each dispositive factual issue while still "providing enough

information to a jury to make it aware of the respective legal duties of the

parties ."'

          We remain committed to the bare bones instructional principle, confident

that it works well in most cases to "pare down unfamiliar and often complicated

issues in a manner that jurors, who are often not familiar with legal principles,

      5 C.J.S . Appeal and Error § 968 (2008) . See also Emerson v. Commonwealth,
      230 S .W.3d 563, 570 (Ky. 2007) (stating that an error is harmless if there is "no
      reasonable possibility it affected the verdict. . . ...).
9
      See, e.g., Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997).
10
      Cox v. Cooper, 510 S.W .2d 530, 535 (Ky. 1974) ("Our approach to instructions is
      that they should provide only the bare bones, which can be fleshed out by counsel in
      their closing arguments if they so desire."). We recognized Justice Palmore as the
      originator of the "bare bones" phraseology in Olfice, Inc . v. Wilkev , 173 S .W .3d 226,
      228 (Ky. 2005).
      Baze , 965 S.W.2d at 823.
      Wilkev , 173 S.W.3d at 229.
 can understand . "s But instructions must not be so bare bones as to be

 misleading or misstate the law.'`

         As mentioned, we have determined that the law requires specific

 identifiers to be placed in each count in a case involving multiple counts of the

 same offense . So a failure to include at least some basic evidentiary

 identification in the sexual abuse instructions at hand was a misstatement of the

 law. Furthermore, the lack of specificity in the instructions readily lends itself to a

 potential unanimity problem . '5

         No doubt able counsel could--and in this case, did--attempt to "flesh out"

the generic sexual abuse instructions in closing argument by telling the jury

which specific act of sexual abuse was covered by which specific count of the

charges . And, in dictum, we have appeared to approve of such attempted

corrective and curative action by the Commonwealth .

         Earlier this year, in Bell v. Commonwealth, we encountered a similar

situation whereby a trial court gave multiple jury instructions on sexual offenses

without including any distinguishing characteristics . 16 And earlier in the opinion,

we had already held that Bell's convictions must be reversed due to the trial

13

14

15
     Bell, 245 S.W.3d at 744 ("The wording of the instructions, however, calls into
     question the unanimity of the verdict. A criminal defendant, of course, is entitled to a
     unanimous verdict . Ky. Const . § 7, as interpreted in Cannon v. Commonwealth,
     291 Ky. 50, 163 S .W.2d 15 (1942); RCr 9.82(1). When the evidence is sufficient to
     support multiple counts of the same offense, the jury instructions must be tailored to
     the testimony in order to differentiate each count from the others. While the
     Commonwealth differentiated the offenses during its closing arguments, there is
     nothing in the written instructions to distinguish each count of rape, sexual abuse and
     sodomy.").
16
 court's unduly coercive actions during jury deliberations." But we exercised our

 discretion to address the jury instruction issue because it was likely to occur on

 retrial .     We held that the failure to include any distinguishing characteristics in

 the instructions was error but found that the error would have been harmless

 because

             [t]he Commonwealth, in its closing, identified the five distinct
             incidents [of rape or sexual abuse]. Because the jury ultimately
             found Bell guilty of all five counts of sexual abuse, it can be
             rationally and fairly deduced that each juror believed Bell was guilty
             of the five distinct incidents identified by the Commonwealth .'9

             In essence, our imprecise and unfortunate dictum in Bell can be taken to

 stand for the proposition that able counsel may "cure" a defective jury instruction

 in closing argument. But we very recently made it clear in a unanimous opinion

that jury instructions, which a jury is presumed to follow, must be based solely

upon the evidence ; and "an attorney's arguments do not constitute evidence ."2°



17
     /d. at 742-43.
18
      Because we had already found that Bell's convictions must be reversed for other
      reasons, our discussion of the jury instruction issue was obviously dictum . Thus, our
     statements on the jury instruction issue are not binding precedent . Indeed, perhaps
     the most esteemed jurist in our nation's history, Chief Justice John Marshall,
     cautioned against later courts being bound by the dicta of a previous court. See
     Cohens v. State of Virginia , 19 U.S. 264, 399-00, 5 L.Ed.257, 6 Wheat. 264 (1821)
     ("It is a maxim not to be disregarded, that general expressions, in every opinion, are
     to be taken in connection with the case in which those expressions are used . If they
     go beyond the case, they may be respected, but ought not to control the judgment in
     a subsequent suit when the very point is presented for decision . The reason of this
     maxim is obvious. The question actually before the Court is investigated with care,
     and considered in its full extent. Other principles which may serve to illustrate it, are
     considered in their relation to the case decided, but their possible bearing on all other
     cases is seldom completely investigated .").
19
     Bell, 245 S.W.3d at 744.
20
     Dixon v. Commonwealth,          S .W.3d     , 2008 WL 2165961 at * 7 (Ky. May 22,
     2008).
 Therefore, we reached the plain conclusion that "the arguments of counsel are

 not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions ."21

          Our conclusion that arguments of counsel cannot rehabilitate erroneous

 jury instructions is directly in accordance with the United States Supreme Court's

 pronouncement that "arguments of counsel cannot substitute for instructions by

 the court" because a defendant's right to have the jury base its deliberations

 solely upon the evidence cannot be "permitted to hinge upon a hope that defense

 counsel will be a more effective advocate" than the prosecution . 4r, in other

words, the concept of fleshing out bare bones instructions permits counsel to

attempt to explain the instructions to the jury but does not permit counsel to

attempt to correct erroneous jury instructions .

         Based on the foregoing, it is clear that the instructional error in the case at

hand was not cured by the Commonwealth's closing argument. Indeed, we have

previously stated in a similar case that if the issue had been preserved, we would

have found a similar instructional error to necessitate reversal .23 Likewise, we

find that the Commonwealth has failed to overcome the presumption of prejudice

in the case at hand, 24 meaning that the failure to include identifying language in

the sexual abuse instructions necessitates reversal of Harp's sexual abuse

21

22
     Taylor v. Kentucky , 436 U.S. 478, 488-89, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) .
23
     Miller, 77 S.W.3d at 576 .
24
     In its brief, the Commonwealth seems mainly to contend that there was evidence to
     support the giving of seven distinct sexual abuse instructions . With that
     unremarkable conclusion, we agree . Rather than serving as a method to save
     Harp's convictions, however, the Commonwealth's argument merely serves to
     highlight how easy it would have been for the trial court to have followed our earlier
     directive to include identifying characteristics in each instruction.
 convictions . Bell is overruled to the extent that its dictum suggests that a failure

 to include the requisite specific identifying language in jury instructions can be

 rendered a harmless error by the curative powers of counsel's closing

 argument.

                     B. No Error in Admitting Letter to Psychologist.

         Harp contends that it was error to admit into evidence a letter he wrote

while being treated at a psychiatric hospital . We disagree .

         As we have stated many times, we may disturb a trial court's decision to

admit evidence only if that decision is an abuse of discretion .26 And a trial

judge's decision represents an abuse of discretion only if the decision "was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles . ,27

         Generally, Kentucky Rules of Evidence (KRE) 507 protects information

gathered by a "psychotherapist"28 from disclosure .29 But the General Assembly

has expressly abolished the patient privilege in child abuse cases .30 And the


25
     We decline Harp's invitation to find that the sodomy instruction was similarly fatally
     flawed . No unanimity problem is apparent in regards to that instruction because
     Harp was charged with only one count of sodomy. Our precedent does not support a
     conclusion that a trial court is required to include any identifying evidentiary detail in
     instructions in which a defendant is charged with only one count of an offense . See
     Bell , 245 S.W.3d at 744 ("When the evidence is sufficient to support multiple counts
     of the same offense, the jury instructions must be tailored to the testimony in order to
     differentiate each count from the others.") (emphasis added).
26
     See, e.g., Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006).
27
     Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
2s
     A licensed psychologist is considered a psychotherapist . KRE 507(a)(2)(B) .
2s
     See KRE 507(a)(2)(B) .
30
     See Kentucky Revised Statutes (KRS) 620 .050(3) ("Neither the husband-wife nor
     any professional-client/patient privilege, except the attorney-client and clergy-
     penitent privilege, shall be a ground for refusing to report under this section or for
     excluding evidence regarding a dependent, neglected, or abused child or the cause
     thereof, in any judicial proceedings resulting from a report pursuant to this section .

                                              10
 case at hand is a criminal proceeding involving an abused child-B.B .3' So

 KRS 620.050(3) applies, meaning that the trial court did not abuse its discretion

 in admitting the letter .32

        C. No Error to Admit Evidence of Other Crimes, Wrongs, or Bad Acts .

         Before trial, the Commonwealth gave notice that it intended to introduce

evidence of all sexual contact between Harp and B.B ., regardless of whether the

conduct was specifically contained in the indictment against Harp . Harp

unsuccessfully sought to exclude the evidence of uncharged sexual contact with

B .B., which the trial court denied. On appeal, Harp contends that the admission

of the evidence in question was erroneous. We disagree .

         KRE 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in



     This subsection shall also apply in any criminal proceeding in District or Circuit Court
     regarding a dependent, neglected, or abused child."); Mullins v. Commonwealth,
     956 S.W.2d 210, 211-12 (Ky. 1997).
31
     KRS 600.020(1)(e) defines an abused or neglected child as a child whose health or
     welfare is harmed or threatened with harm when a parent, guardian or person
     exercising custodial control or supervision of the child "[c]ommits or allows to be
     committed an act of sexual abuse . . . upon the child. . . ."
32
     Even if we accepted for argument's sake any of Harp's arguments and assumed that
     the letter should not have been admitted, its admission would have been a harmless
     error because the gist of the letter (i.e., Harp's admission of having sexual contact
     with B.B .) was cumulative of Harp's admission to the authorities that he engaged in
     sexual conduct with B.B . See, e.g., Coulthard v. Commonwealth, 230 S.W.3d 572,
     585 (Ky. 2007) ("Thus, not only were the circumstances surrounding Appellant's
     refusal to provide fingerprint samples undisputed, but also the evidence was
     cumulative in the sense that the jury already heard a plethora of evidence regarding
     evasive actions taken by Appellant. Under these circumstances, we simply cannot
     see how there is any reasonable possibility that this evidence contributed to the
     jury's verdict .") (footnote omitted) . Furthermore, the evidence against Harp was
     overwhelming . See, e.g., Brewer v. Commonwealth , 206 S.W.3d 343, 352 (Ky.
     2006) (holding that admission of improper investigatory hearsay was harmless error
     due to its cumulative nature and because evidence of defendant's guilt was
     overwhelming).
 conformity therewith ." However, such evidence is admissible if offered for

 another purpose, "such as proof of motive, opportunity, intent, preparation, plan,

 knowledge, identity, or absence of mistake or accident . . . ." 33 In determining the

 admissibility of KRE 404(b) evidence, we focus upon three matters:

 (1) relevance, (2) probativeness, and (3) prejudice .34 As stated previously, we

 may reverse a trial court's decision to admit evidence only if that decision

 represents an abuse of discretion .

         The Commonwealth bore the burden of proving each element of each

charge against Harp beyond a reasonable doubt. Thus, the Commonwealth

was required to offer proof of Harp's intent . Accordingly, the evidence of other

sexual contact between Harp and B.B ., including, among other things, Harp's

exposing his genitals to B .B. on multiple occasions, was both highly relevant and

probative . Additionally, the evidence Harp challenges on appeal also was

admissible as proof of at least identity and absence of mistake or accident .38




33
     KRE - 404(b)(1).
34
     Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005).
35

36
     KRS 500.070(1).
37
     See, e.g., KRS 510.148(1) (requiring, inter alia, person to intentionally expose his
     genitals to be guilty of indecent exposure in the first degree)
38
     See, e.g., Noel v. Commonwealth , 76 S .W.3d 923, 931 (Ky. 2002) ("Appellant
     asserts that admission of C.M.'s testimony that Appellant had sexually abused her
     ` more than one time' violated the KRE 404(b) proscription against admission of
     evidence of other crimes, wrongs, or acts . However, this testimony falls within the
     exceptions for evidence offered to prove intent, plan, or absence of mistake or
     accident. KRE 404(b)(1).").


                                             12
           As we have definitively held, "evidence of similar acts perpetrated against

 the same victim are almost always admissible . . .    .',39
                                                               And we do not perceive

 that any prejudice suffered by Harp was sufficient to overcome the general rule

 regarding admissibility of similar acts perpetrated against the same victim . Thus,

 we find no error in the trial court's decision to admit the KRE 404(b) evidence in

 question .

                    D. No Error in Finding-B .B. Competent to Testify .

           Harp contends that the trial court erred by finding B .B. competent to

 testify . We disagree .

           Under KRE 601, a witness is competent if the witness can "perceive

 accurately that about which she is to testify, can recall the facts, can express

 herself intelligibly, and can understand the need to tell the truth . The competency

 bar is low with a child's competency depending on her level of development and

upon the subject matter at hand .,,40 Of particular bearing to this case is the fact

that "[a]ge is not determinative of competency[,] and there is no minimum age for

testimonial capacity . '41 Because "[t]he trial court is in the unique position to

observe witnesses and to determine their competency[,]" we have held fast to the

principle that "[t]he trial court has the sound discretion to determine whether a

witness is competent to testify. ,42




39
     Id., citing Price v. Commonwealth, 31 S.W.3d 885, 888 n. 4 (Ky. 2000).
40
     Pendleton y. Commonwealth , 83 S.W.3d 522, 525 (Ky. 2002).
41
     Id.
42
     Id.


                                            13
         B.B. demonstrated that she knew such fundamental factual things as her

 age, date of birth, grade level, school name, and teacher's name . She also was

 able to recall her latest birthday party and Christmas presents, as well as the

 names of her former schools. At trial, B .B. identified Harp as the perpetrator and

 was able to provide details of the acts committed against her by Harp.

 Importantly, B .B. indicated when she was unable to recall a fact or event.

         A witness is not deemed incompetent solely because of young age or

 inability to recall each and every detail of life with mathematical precision. And

 B.B . demonstrated a sufficient ability to recall the most pertinent facts intelligibly

while knowing the importance of telling the truth. So from our review of the

record, we are satisfied that the trial court did not abuse its discretion in finding

B .B. competent to testify . 43

                   E. No Bolstering of B.B .'s Testimony Sufficient to
                      Constitute a Palpable Error Occurred .

         Harp contends that B.B.'s testimony was improperly bolstered by the

testimony of Valerie Mason, a forensic interviewer, and Detective Rhonda

Speaker of the Louisville Metro Police Department's Crimes Against Children

Unit. Harp admits that this issue is unpreserved . So our review is limited to

determining if any error is palpable . An error is palpable only if it "is so




43
     See id. at 526 ("A review of D.A.'s testimony reveals that she was able to identify
     Appellant as the perpetrator, and could provide details of the acts committed against
     her. Furthermore, Appellant had the ability to cross-examine D.A. and undermine
     her credibility with the jury, if he felt her testimony had been coerced by the social
     worker. No error occurred .").
44
     Kentucky Rules of Criminal Procedure (RCr) 10.26.


                                             14
 manifest, fundamental and unambiguous that it threatens the integrity of the

 judicial process .,,45

         We question whether bolstering occurred at all in this case . Even

 assuming that it did, we disagree with Harp's contention that any bolstering

 constituted a palpable error.

         Generally, "a witness's credibility may not be bolstered until it has been

 attacked .,46 However, the testimony at issue is not a bolstering of B .B.'s

 testimony. Indeed, neither Mason nor Speaker directly spoke of B.B.'s character

 for truthfulness. However, the jury could have inferred that Mason was indirectly

 vouching for B.B .'s credibility by testifying about things like the fact that she had

 conducted more than 3,000 interviews with children but that not all of those

 cases resulted in the issuance of charges . Similarly, the jury could have inferred

that Speaker was indirectly vouching for B .B.'s credibility by testifying that she

had investigated cases "Men) she had found insufficient evidence to charge a

suspect. It is important to note, however, that B.B.'s credibility was not totally

unchallenged because some evidence was introduced showing that B .B .'s own

mother allegedly did not believe B .B. when she first disclosed Harp's alleged

sexual misconduct .

         Because neither Mason nor Speaker directly vouched for B .B .'s credibility,

we question whether any improper bolstering of B .B .'s credibility occurred . But

even if we assume for argument that Mason and Speaker's testimony


45
     Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
46
     Miller ex rel. Monticello Baking Co. v. Marymount Medical Center , 125 S.W.3d 274,
     283 (Ky . 2004).


                                            15
 constitutes, at most, an indirect bolstering of B.B.'s credibility, that error is simply

 not so fundamental and intolerable as to have threatened the integrity of the trial.

 In short, the fact that a jury may have been able to infer that a witness was, at

 most, indirectly vouching for the credibility of another witness is simply not the

 stuff from which palpable errors are made .

                        F . Trial Court Properly Denied Directed
                            Verdi ct as to Indecent Exposure Charge .

         Harp contends that the trial court erred in denying his motion for a directed

 verdict on the indecent exposure charge. We disagree .

         The familiar standard for ruling on a motion for directed verdict is as

 follows:

         On motion for directed verdict, the trial court must draw all fair and
         reasonable inferences from the evidence in favor of the
         Commonwealth . If the evidence is sufficient to induce a reasonable
         juror to believe beyond a reasonable doubt that the defendant is
         guilty, a directed verdict should not be given . For the purpose of
         ruling on the motion, the trial court must assume that the evidence
         for the Commonwealth is true, but reserving to the jury questions as
         to the credibility and weight to be given to such testimony.

                 On appellate review, the test of a directed verdict is, if under
         the evidence as a whole, it would be clearly unreasonable for a jury
         to find guilt, only then the defendant is entitled to a directed verdict
         of acquittal .48




47
     The parties disagree whether this issue is preserved as Harp raised a different
     ground for his directed verdict motion before the trial court than he does on appeal .
     Of course, for preservation purposes, an appellant is not permitted to make a
     different argument on appeal than was made in the trial court. Kennedy v.
     Commonwealth , 544 S.W.2d 219, 222 (Ky. 1976). Thus, preservation of this issue is
     questionable, at best. However, Harp's argument would fail even if the issue were
     perfectly preserved .
48
     Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991).


                                             16
         A person commits the offense of indecent exposure in the first degree if he

 "intentionally exposes his genitals under circumstances in which he knows or

 should know that his conduct is likely to cause affront or alarm to a person under

 the age of eighteen (18) years ." 49 The jury instruction on this charge was in

 accordance with KRS 510.148(1). Nevertheless, Harp contends that the

 indecent exposure charge merged with the sexual abuse charge.

         B.B . testified that once Harp showed her his penis and masturbated in

 front of her to the point of ejaculation . That specific episode could not have been

 simultaneously covered by a sexual abuse charge because exposure of Harp's

 penis without any touching of or by B .B. would have been insufficient to have

 constituted sexual abuse .50 Thus, it was clearly not unreasonable for the jury to

find Harp guilty of indecent exposure .


                                   IV. CONCLUSION.

         For the foregoing reasons, Wilbert Harp's indecent exposure and sodomy

convictions are affirmed . Harp's sexual abuse convictions are vacated, and

those offenses are remanded to the trial court for proceedings consistent with

this opinion.




49
     KRS 510.148(1).
50
     KRS 510.110, which governs sexual abuse in the first degree, requires a person to
     subject "another person" to sexual contact. Thus, exposing one's own genitals,
     without any touching by another person, would not constitute sexual abuse in the first
     degree .
51
     Cf. Combs, 198 S.W.3d at 580-81 (stating that evidence that defendant masturbated
     could be evidence of indecent exposure);


                                            17
       All sitting . Minton, C .J . ; Abramson, Cunningham, Noble, and Venters, JJ.,

concur. Schroder, J., concurs in result only by separate opinion . Scott, J .,

concurs in part and dissents in part by separate opinion .




COUNSEL FOR APPELLANT :

Daniel T. Goyette
Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202

Elizabeth B. McMahon
Assistant Public Defender
Office of the Jefferson District Public Defender
100 Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
                                                          RENDERED : OCTOBER 23, 2008
                                                                NOT TO BE PUBLISHED


                 ,*uyrtmr Courf of ~RrufurkV
                                    2007-SC-000288-MR


WILBERT HARP                                                                     APPELLANT



                   ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                  HONORABLE GEOFFREY P . MORRIS, JUDGE
                               NO. 06-CR-000714


COMMONWEALTH OF KENTUCKY                                                           APPELLEE


                           OPINION BY JUSTICE SCHRODER
                            CONCURRING IN RESULT ONLY

       I concur in result only, because, as to part III(E), I believe the majority erred in its

legal analysis and in leaving an issue open which is likely to arise again on retrial . The

majority recognized that the jury could infer that Mason and Speaker were "indirectly"

vouching for B.B .'s credibility, but then questioned whether this was error because they

did not "directly" vouch. In Bell v. Commonwealth, 245 S .W .3d 738, 744-45 (Ky. 2008),

we recognized that a witness does not have to explicitly vouch for another witness's

credibility in order for the testimony to be improper, but that implicit vouching runs afoul

of the law as well. Id . Therefore, under Bell , I believe the testimony was error.

       I am also puzzled by the majority's apparent belief that because B.B .'s credibility

was challenged somewhat through the mother's testimony, that this could open the door

for the vouching. If the majority is equating the mother's testimony with evidence

referring to character for untruthfulness, this would open the door only to evidence
referring to character for truthfulness. KRE 608(a). The majority recognized, and I

agree, that Mason's and Speaker's testimony did not refer to character for truthfulness .

Therefore, it would not be admissible under KRE 608(a).

       For the aforementioned reasons, I believe the admission of the testimony at

issue was error. As to the convictions we are affirming, however, I agree with the

majority that no palpable error occurred, and would affirm those convictions . However,

because the case is being remanded in part, we also have the issue of the testimony

arising again on retrial . Because I believe the testimony was error, I believe it should be

inadmissible on retrial. The majority, although concluding that even if the testimony was

error, it was not palpable, did not actually decide if it was, in fact, error. In order to avoid

confusion on retrial, or the issue arising again on appeal, I believe it was incumbent

upon the majority to actually decide whether or not this testimony is, in fact, error. For

these reasons, I concur in result only.
                                                  RENDERED : OCTOBER 23, 2008
                                                        NOT TO BE PUBLISHED


          ~sixpreme C~aixrE of `irufurkV
                                2007-SC-000288-MR

WILBERT HARP                                                            APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.               HONORABLE GEOFFREY P. MORRIS, JUDGE
                            NO. 06-CR-000714


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


             OPINION BY JUSTICE SCOTT CONCURRING IN PART
                        AND DISSE NTING IN PART

       Altho ugh I concur with the majority's opinion on the other issues, I must

dissent on issue IIIA as the Commonwealth clearly pointed out to the jury the

separate items of evidence supporting each of the seven charges ; thus, the error

was clearly harmless in this instance . I concede, however, that l, too, am

displeased at the frequency with which our trial courts fail to differentiate multiple

instructions from each other. This displeasure, however, is not sufficient to

obviate the "harmless error' rule in instances like these ; where there is no

question that differentiating factors existed in the evidence and were pointed out

to the jury in closing by the Commonwealth .

       Thus, the majority's reliance on Dixon v. Commonwealth, --- S .W.3d ---,

2006-SC-000682, 2008 WL 2165961 (Ky. May 22, 2008) to overrule the

harmless error analysis in Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky.
 2008), is simply inappropriate . As the court in Dixon acknowledged, "the issue

 [therein was] not whether the instructions were erroneous"- even though they

 did fail to differentiate which of the two "hammer blows" supported the separate

 offenses . Dixon, --- S-W.3d ---, 2006-SC-000682, 2008 VVL 2165961 at *7 (Ky.

 May 22, 2008). Notably, Dixon only dealt with double jeopardy issues and

 affirmed the conviction discussed therein .

        Moreover, the comment that "an attorney's arguments do not constitute

evidence," has never been questioned . See, e.-g., 75A Am .Jur .2d Trial § 443

(2008). Its purpose is to collate the evidence with the instructions, which is what

occurred here . Thus, the commands of RCr 9 .24, that "[n]o error . . . in anything

done or omitted by the court . . . is ground for . . . setting aside a verdict . . .

unless it appears to the court that the denial of such relief would be inconsistent

with substantial justice," should be followed .

        Here, as in Bell, the majority acknowledges that, "[n]o doubt able counsel

could - and in this case, did attempt to `flesh out' the generic sexual abuse

instructions in closing argument by telling the jury which specific act of sexual

abuse was covered by which specific count of the charges." These were

reminders by counsel as to what the evidence was - not evidence itself. Now,

by unequivocally holding "that a failure to include proper identifying

characteristics in jury instructions is reversible error" and overruling Bell, the

majority effectively prohibits the application of harmless error in these instances .

        It is for this reason I respectively dissent on this issue .


       1 The majority opinion refers to the harmless error review in Bell as dicta, which it
was clearly not. Dicta is a statement in an opinion which is unnecessary to the ultimate
determination . Williams v. West, 258 S.W.2d 468, 471 (Ky. 1953). The analysis
referenced in Bell rendered the error harmless. Bell, 245 S.W.2d at 744.
                                             2
           'Suprrmt (~Vurf of ~Rrufurhv
                           2007-SC-000288-MR


WILBERT HARP                                               APPELLANT


            ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.           HONORABLE GEOFFREY P. MORRIS, JUDGE
                        NO . 06-CR-000714


COMMONWEALTH OF KENTUCKY                                     APPELLEE


                        ORDER OF CORRECTION

      The Memorandum Opinion of the Court, rendered October 23,

2008, is CORRECTED on its face by the substitution of page l . Said

correction does not affect the holding.

      ENTERED : October 27, 2008 .




                                     F JUSTICE JOHN D . MINTON
