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ASA PIERATT GULLETT, IV APPELLANT

 

 

 

 

ON APPEAL FROM SHELBY CIRCUIT COURT
V. HONORABLE CHARLES R. HICKMAN, JUDGE
NOS. 14-CR-00058 AND 15-CR-00159

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS
EVERSING ALREMANDI_N(_}_

Appellant, Asa Pieratt Gullett, IV, appeals from a judgment convicting
him of .incest, first-degree rape, first-degree sodomy, first-degree sexual abuse,
and second-degree sexual abuse and sentencing him to a total of sixty-five
years in prison, which is the maximum sentence allowable in this case.

Appellant argues that he is entitled to relief because (1) during voir dire,
the juror who ultimately became foreperson improperly Withheld material
information which would have justified al for-cause challenge or would have
prompted Appellant to use a peremptory challenge against her; (2) a directed
verdict should have been granted on the first-degree sodomy and first-degree
sexual abuse charges because there was a lack of evidence of forcible
compulsion; (3) the phrasing of the first-degree sodomy and first-degree sexual
abuse instructions resulted in a unanimous verdict violation; and (4) the trial

court erroneously permitted the introduction of prior bad act evidence.

Because the jury foreperson wrongfully withheld material information
concerning the past criminal record of her close relatives, and the concealment
of that information denied Appellant the opportunity to challenge the juror for
cause or alternatively, use a peremptory strike to remove the juror, we
conclude that Appellant was deprived “of a substantial right” not subject to
harmless error analysis. Shane v. Commonwealth, 243 S.W.3d'336, 341 (Ky.

2007 ). For that reason we reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant grew up in Perry County and in 2000, at the age of nineteen,
he moved with his parents to Shelby County. In 2003 or 2004, Appellant
moved to Maryland. A few years later, Appellant’s parents discovered that
Appellant had fathered a child in Perry County. That child, who we refer to as
Betty,1 Was born in 2000. It was only at this time that Betty, too, first came to
know of her father and grandparents.

Betty had a difficult home life, and so in 'January of 2008, she moved
into the Shelby County home of her grandparents, Appellant’s parents. They
became her permanent guardians. While Appellant was still in Maryland, he
began to develop a relationship with Betty by talking with her on the telephone
every night. A year later, he returned to Kentucky and resumed living at his

parents’ home. Appellant began to develop a closer relationship With Betty.

 

1 In order to protect her privacy we have used a pseudonym in our references to
the victim.

According to the evidence, Appellant’s interest in Betty became
increasingly sexual and his parents began to suspect improprieties. They
Would later report information to police leading to an investigation. Betty then
began to disclose more details of her relationship with Appellant, including
details of the crimes that were eventually charged.

Police interviewed Appellant and the suspicions that had arisen based
upon Betty’s allegations were confirmed. Appellant was initially indicted on
one count of first-degree rape, one count of first-degree sodomy, and three
counts of first-degree sexual abuse (one count age related and the other two
based upon forcible compulsion). He was later separately indicted for one
count of incest and that count was joined into the original indictment

At trial, the court dismissed one count of sexual abuse. The remaining
charges were submitted to the jury. Ultimately, the jury convicted Appellant of z
incest (victim under eighteen years of age); first-degree forcible rape; first-
degree forcible sodomy; first-degree forcible sexual abuse; and second-degree
sexual abuse. As a result of these convictions Appellant was sentenced to a

total of sixty-five years in prison. This appeal followed.

II. ANALYSIS
A. Appellant is entitled to a new trial based upon juror misconduct.

We first consider Appellant’s contention that he is entitled to a new trial
because the jury foreperson, Marla Ethington, lied on her juror qualification
form and also during the voir dire proceedings concerning whether a member

of her family had ever been prosecuted in a criminal matter. After being

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summonsed for jury duty, Ethington completed a juror qualification form
Which included the following question: “Have you or a family member been a
defendant, witness, or complainant in a criminal case?” Ethington answered
“No.”

lt is undisputed that Ethington has a brother, a sister, and a nephew
who have each been convicted of criminal offenses; and, indeed, her siblings
had each served time in prison as a result of previous criminal convictions, and
her nephew Was currently undergoing a criminal prosecution. Although
Appellant’s trial counsel, public defender Elizabeth Curtin, was unaware of the
relationship, she had previously represented Ethington’s siblings in their
respective criminal prosecutions, and another lawyer in her office Was currently
representing Ethington’s nephew.

Ethington was not among the jury initially drawn to fill the jury box, but

. as a member of the reserve pool, she was in the courtroom throughout the voir

dire proceedings, and presumably she was aware of the proceedings as they
unfolded. During the voir dire examination, the trial court asked the venire if
any of them had had any dealings with “[the prosecutor’s] office? Friends?
Family? Anybody that may have had dealings with [the prosecutor’s office]?”
The question was clearlyintended to discover if any prospective juror,
personally or indirectly through friends or family, had had dealings with the
prosecutor’s office. A similar question was asked concerning defense counsel.

After a juror on the venire was excused for cause, another juror, “Juror

A,” was called to replace him. When the trial court asked Juror A if any of the

4

questions asked so far indicated a reason for concern, he answered that his
stepson had been prosecuted for rape by the prosecutor’s office and that
defense counsel had been his attorney. Juror A was then excused for cause,
. Ethington was selected to replace him.

Similarly asked by the trial court if she had “[any] concerns to this point
[based upon the questions asked so far],” and even though Juror A had just
identified his stepson’s prosecution as a concern, for which he was excused for
cause, Ethington responded “No.”

Later in the voir dire process, the Commonwealth asked whether “anyone
had a family member, friend, or close acquaintance that’s been a witness, a
victim, or a defendant in a criminal case.” Ethington-again failed to disclose
that she had a brother, a sister, and a nephew who had been prosecuted for
criminal conduct. The Commonwealth then asked specifically whether anyone
in the second row, where Ethington was seated, had a “friend or family member
who was a witness or charged with a crime,” and then repeated “witness,
Victim, or defendant?” Another juror responded that she had a friend who was
prosecuted, but again, Ethington did not disclose the prosecutions of her close
relatives.

It was not until after Appellant’s convictions that defense counsel learned
of the prosecutions of Ethington’s relatives. Based upon that discovery and
other reasons not relevant here, Appellant moved for a new trial. At the
hearing on Appellant’s motion, the court records establishing the prior

prosecutions of Ethington’s relatives were introduced. The validity of those

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records is not in dispute. Ethington was called as a witness to explain her
failure to respond to the voir dire questions. She explained that she construed
the questions about her family to mean only members of her present
household, which consisted of her, her son, and her daughter, and therefore
did not include her siblings, nephew, and other family members outside of her
immediate household. She further testified that she was not deliberately trying
to mislead anyone about the criminal backgrounds of her siblings and nephew,
and that everyone in the county knew her and so she supposed the prosecutors
and defense counsel would have known the relevant information without her
assistance. She further testified that the undisclosed backgrounds of her
kinsmen did not have any impact on her deliberations in the case, and did not
create any bias in her one way or the other.

Defense counsel explained at the hearing that she had actively
represented a brother and sister of Ethington’s, and that her office was
' currently representing a nephew. Defense counsel explained that if she had
known of Ethington’s relationship to her other clients, she would have
challenged her for cause or used a peremptory challenge to remove her.
Defense counsel also said: “During the course of my representation [of
Ethington’s siblings] l have knowledge that would have precluded me . . . I
would never have allowed her to serve, not only serve but be the jury

foreperson.”
Defense counsel added that truthful responses identifying the relatives

“was essential to our ability to select a fair and impartial jury.” She further

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stated, “I’ve been practicing out here for over 20 years [and] not a year goes by
an Ethington is not in court.”2 Finally, defense counsel reiterated that the fact
that the information was not disclosed impacted “our ability to select . . . a fair
and impartial jury.”

The Commonwealth argued that the burden was on the defendant to
prove “actual bias,” and that with greater diligence Appellant could have found
out the information before trial, or could have asked better questions during
voir dire to have obtained the information

The trial court concluded that Appellant had the burden of showing
actual bias _in order to obtain relief; that Ethington denied having a bias, but
even so, one would expect her bias to run against the Commonwealth since it
was the prosecutors who had taken actions against her family members; that
Ethington had simply misconstrued “family members” to mean “household
members”; and that the jury disclosure form read “Have you or a family
member . . . ?” rather than “Have you or any family member . . . ?” Based
upon these factors, the trial court denied Appellant’s motion for a new trial.

On appeal, the factual findings of the trial court “shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses.” CR 52.01. A factual

 

2 At this point Ethington, who was present in the courtroom, created a
disturbance and was told by the court “you need to be seated.” That spontaneous
outburst suggests a sensitivity concerning the criminal backgrounds of her relatives,
and may suggest a reason for her reluctance to volunteer this information publicly
during the trial proceedings.

finding is not clearly erroneous if it is supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is
“[e]vidence that a reasonable mind would accept as adequate to support a
conclusion and evidence that, When taken alone or in the light of all the
evidence . . . has sufficient probative value to induce conviction in the minds of
reasonable men.” Id. at 354. We review issues of law de novo. Nash v.
Campbell County Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011).

We first address the trial court’s conclusion that Ethington’s failure to
disclose the criminal prosecutions of her family was not deliberate deception.
On the juror qualification form and several times during the voir dire
examination, the questions posed asked straight-forwardly whether a family
member, friend or acquaintance had been involved in a criminal prosecution.
There is no ambiguity surrounding this inquiry, especially When it was asked
several times. Among the first rudiments of personal knowledge and identity a
person obtains is that a sister and brother are among “family members.” That
familial status is not lost when siblings live in separate households. It is
commonly understood that siblings residing in a different household are,
nonetheless, members of the same family. It is equally certain that Ethington
knew of her siblings’ prior criminal prosecutions Consequently, at least as to
her failure to admit kinship to her siblings, the conclusion that Ethington’s
silent dissembling did not mislead counsel and the court is not supported by
evidence of sufficient probative value to induce conviction in the minds of

reasonable men. We cannot disregard the obvious. Ethington was deliberately

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deceptive in her responses concerning whether members of her family had been
involved with the criminal justice system.

In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984),
a personal injury action, the jury venire on voir dire was asked if “any members
of your immediate family sustained any severe injury . .'. that resulted in any
disability or prolonged pain and suffering, that is you or any members of your
immediate family?” Id. at 550. Juror Payton failed to respond even though it
was determined after trial that Payton’s son had been injured in the explosion
of a truck tire. Juror Payton apparently believed that his son’s broken leg
resulting from the incident did not fall within the scope of the question. In
addressing whether the plaintiffs were entitled to a new trial based upon the
juror’s failure to respond, the Suprerne Court held:

To invalidate the result of a three-week trial because of a juror’s

mistaken, though honest response to a question, is to insist on

something closer to perfection than our judicial system can be

expected to give. . . . We hold that to obtain a new trial in such a

situation, a party must first demonstrate that a juror failed to

answer honestly a material question on voir dire, and then further

show that a correct response would have provided a valid basis for

a challenge for cause. The motives for concealing information may

vary, but only those reasons that affect a juror’s impartiality can

truly be said to anect the fairness of a trial.
Id. at 556 (emphasis added).

This Court followed the McDonough rule in Brown v. Commonwealth, 174
S.W.3d 421, 430 (Ky. 2005) (“It is well settled that ‘[t]o obtain a new trial

because of juror mendacity, ‘a party must first demonstrate that a juror failed

to answer honestly a material question on voir dire, and then further show that

a correct response would have provided a valid basis for a challenge for cause.’”
(quoting Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003))). We agree
that “the necessity of truthful answers by prospective jurors if [voir dire] is to
serve its purpose is obvious.” McDonough, 464 U.S. at 554.

It is virtually certain that an honest answer from Ethington would have
resulted in a valid dismissal for cause because just moments before she was
seated, the trial court summarily struck Juror A for cause for precisely the
same reason - his close kinship to a defendant in another criminal case, The
significance of that subject of inquiry cannot be doubted. Not only does the
question appear on the juror qualification form published by the Court of
Justice for statewide use in all cases, every trial participant in this case who
could inquire about it during voir dire did so. The trial judge asked it directly
during his opening questions, and the prosecutor'and defense counsel each
addressed the subject with the jury, even to the extent of taking a row-by-row
poll of the jurors.

We do not have a rule that kinship to a criminal defendant in another
case is, per se, grounds to strike a juror for cause. In its discretion, the trial
court during voir dire seems to have taken that approach and we have no
criticism of it. The attention given to the subject in this case by the court and
by counsel, and its inclusion on the juror qualification form, proves beyond
doubt that it presents a matter of serious concern about likely bias or
prejudice, but it is one that a literal application of the McDonough test fails to

address.

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We agree with the concurring opinion of Justices Blackmun, Stevens,
and O’Conner in McDonough that “the honesty or dishonesty of a juror's
response is the best initial indicator of whether the juror in fact was impartial.”
Id. at 556. Whether Ethington actually had a disqualifying bias for or against
either party because her sister, brother, and nephew had been criminal 4
defendants in other cases may be open to question. However, her dishonesty is
a strong indicator of bias, a point reinforced by her emotional outburst when
the criminality of her family was mentioned in open court. See footnote 2.

The real problem with Ethington’s mendacity is that her deceptive silence
blocked all further inquiry into the subject. Her tacit dishonesty prevented the
trial court and counsel from asking the additional questions needed to
ascertain whether she harbored disqualifying biases against Appellant’s
prosecutors or defense attorneys based upon their respective roles in her
family’s troubles. Consequently, the test for obtaining a new trial based upon
juror mendacity cannot be limited to showing that “a correct response would
have provided a Valid basis for a challenge for cause.” Often, existing bias or
prejudice cannot be exposed by simply reversing the false answer to one
question. The test for obtaining a new trial, therefore, may also be satisfied by
showing that the juror’s dishonesty prevented inquiry into a critical subject
that may have exposed a disqualifying bias or prejudice,

In addition to the effect of Ethington’s deception on Appellant’s ability to
challenge her for cause, we do not overlook the fact that her mendacity also

affected Appellant’s right to freely exercise his peremptory strikes. Appellant’s

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trial counsel made it clear that had she known of the relationship, she would
have removed Ethington with a peremptory strike based upon knowledge
acquired during her representation of Ethington’s relatives. We noted in Shane
v. Commonwealth that, unlike the federal courts, Kentucky law regards the
right to exercise peremptory strikes as a substantial right not subject to
harmless error analysis. 243 S.W.3d 336, 340-341 (Ky. 2007).

The detrimental effect of juror mendacity on the free and fair use of a
peremptory challenge is no less egregious than its effect on the inability to
make a challenge for cause. In Olympic Realty Co. v. Kamer, 141 S.W.2d 293,
297 (Ky. 1940), two jurors Who were intimately acquainted with a key witness
failed to disclose that information despite a direct question on the point during
voir dire. Our predecessor Court in Kamer, 141 S.W.2d at 297-298, reiterated
the principles adopted in Drury v. Franke, 57 S.W.2d 969, 984-985 (Ky. 1933)
(citing Shulinsky v. Boston & Maine R. R. Co., 139 A. 189 (N.H. 1927)), a
passage we find well-worth recalling here:

When the right [to challenge a juror] is lost or impaired, the

statutory conditions and terms for setting up an authorized jury

are not met; the right to challenge a given number of jurors

without showing cause is one of the most important rights to a

litigant; any system for the empaneling of a jury that prevents or

embarrasses the full, unrestricted exercise of the right_of challenge

must be condemned; a litigant cannot be compelled to make a

peremptory challenge until he has been brought face to face in the

presence of the court, with each proposed juror, and an

opportunity given for such inspection and examination of him as is

required for the due administration of justice; the right to reject

jurors by peremptory challenge is material in its tendency to give

the parties assurance of the fairness of a trial in a valuable and

effective way; the terms of the statutes with reference to
peremptory challenges are substantial rather than technical; such

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rules, as aiding to secure an impartial, or avoid a partial, jury, are
to be fully enforced; the voir dire is of service not only to enable the
court to pass upon a juror’s qualifications, but also in assisting
counsel in their decision as to peremptory challenge; the right of
challenge includes the incidental right that the information elicited
on the voir dire examination shall be true; the right to challenge
implies its fair exercise, and, if a party is misled by erroneous
information, the right of rejection is impaired; a verdict is illegal
when a peremptory challenge is not exercised by reason of false
information; the question is not whether an improperly established
tribunal acted fairly, but it is whether a proper tribunal was
established,' if false information prevents a challenge, the right is so
disabled and crippled as to lose its essential value and ejj‘icacy, as
to amount to its deprivation; the fact that a juror disqualified either
on principal cause or to the favor has served on a panel is
sufficient ground for setting aside the verdict,' Without affirmatively
showing that that fact accounts for the verdict; it is highly
important that the conflicting rights of individuals should be
adjudged by jurors as impartial as the lot of humanity will admit;
next to securing a fair and impartial trial for parties, it is important
that they should feel that they have had such a trial, and anything
that tends to impair their belief in this respect must seriously
diminish their confidence and that of the public generally in the
ability of the state to provide impartial tribunals for dispensing
justice between its subjects; the fact that the false information was
unintentional and that there was no bad faith, does not affect the
question, as the harm lies in the falsity of the information,
regardless of the knowledge of its falsity on the part of the
informant; while willful falsehood may intensify the wrong done, it is
not essential to constitute the wrong; that the injury is brought
about by falsehood, regardless of its dishonesty, and the effect of
the information is misleading, rather than a purpose to give
misleading information is the gist of the injury; when the fact
appears that false information was given, and that it was relied
upon, the right to a new trial follows as a matter of law.

(Emphasis added.) See Leadingham v. Commonwealth, 201 S.W. 500 (Ky.
1918) (where a juror was in fact related to the deceased, one convicted by the
jury of which he was a member was entitled to reversal, unless the juror was in
fact ignorant of the relationship, a.nd the burden was on the state to show that

he was ignorant of such fact); Pennington v. Commonwealth, 316 S.W.2d 221,

13

224 (Ky. '1958) (“[I]t is a requirement for the due administration of justice that
, revelation be made of material and significant facts affecting the qualification of
a juror in order that a party may, if he desires, exercise his right of peremptory
challenge.” (citation omitted)); and Anderson v. Commonwealth, 864 S.W.2d
909 (Ky. 1993) (juror’s failure to reveal, in response to voir dire question, that
he was relative of complainant’s boyfriend, mandated that defendants be
granted new trial, regardless of whether juror failed to respond intentionally or
inadvertently); but cf. Moss v. Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997)
(“[I]t is entirely speculative and quite possibly self-serving for appellant to
assert that he would have used a peremptory challenge to exclude this juror. If
we allowed such a practice, after-acquired information could always be used in
post-trial assertions that a particular juror would have been excused had the
undisclosed information been known.”).

Upon application of the above authorities, we are constrained to
conclude that Appellant should have been granted a new trial, The alternative
is to uphold a sixty-five year prison sentence imposed by a jury led by a
foreperson who remained deceitfully silent when asked, on no less than four
occasions, about an important fact regarding her qualifications to serve. Under
the most fundamental precepts of due process and fairness, such a conviction
may not be allowed to survive.

Ethington’s deception regarding the criminal background of her close
family members, whether intentional or not, deprived Appellant of the

opportunity to either have Ethington stricken for cause, or, alternatively, to

14

exercise a peremptory strike against her. The judgment of the circuit court is
accordingly reversed. We address the remaining issues raised by Appellant
insofar as they may arise upon retrial.

B. Appellant was not entitled to a'directed verdict.

Appellant contends that a directed Verdict should have been granted on
the first-degree forcible compulsion sodomy charge and the first-degree forcible
compulsion sexual abuse charge because there was a lack of evidence of
forcible compulsion as to each charge,3 We-address this issue because if the
evidence at trial was not sufficient to warrant his conviction under the
applicable standards, retrial of the case is barred on double jeopardy grounds.
For the reasons explained below we reject this argument and conclude that
Appellant may be retried upon these charges. n

In reviewing a motion for a directed verdict the trial court must draw all
fair and reasonable inferences from the evidence in favor of the
Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
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, Id. For the purpose of ruling on the motion, the trial court must

 

3 While Appellant frames this argument as being entitled to a “directed verdict,”
he actually challenges only the forcible compulsion element of the charge, in the
absence of which he would still be subject to conviction for age-related statutory
sexual charges. Accordingly, more accurately he is contending that instructions for
first-degree sodomy and sexual abuse should not have been given, not that he is
entitled to an absolute acquittal by a directed verdict. However, because the same
result is obtained and that is how the issue has been briefed, we will apply the
directed verdict standard in our analysis.

15

assume that the evidence for the Commonwealth is true, but reserve for the
jury questions as to the credibility and weight to be given to such testimony.
Id. “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.” Id. (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). “[T]here must be evidence
of substance, and the trial court is expressly authorized to direct a verdict for
the defendant if the prosecution produces no more than a mere scintilla of
evidence.” Benham, 816 S.W.2d at 186-187; Banks v. Commonwealth, 313

S.W.3d 567, 570 (Ky. 2010).

1) First-Degree Sodomy

We first consider whether Appellant was entitled to a directed verdict on
the first-degree sodomy charge which allegedly occurred in March of 2012.
KRS 510.070 provides as follows:

(1) A person is guilty of sodomy in the first degree when:

(a) He engages in deviate sexual intercourse with another person by
forcible compulsion. . . .

(Emphasis added.) KRS 510.010(2) defines forcible compulsion as follows:

‘Forcible compulsion’ means physical force or threat of physical
force, express or implied, which places a person in fear of
immediate death, physical injury to self or another person, fear of
the immediate kidnap of self or another person, or fear of any
offense under this chapter. Physical resistance on the part of the
victim shall not be necessary to meet this definition.

16

In our prior interpretations of this section We have concluded that l
“‘forcible’ compulsion does not require violence or duress or resistance by the
victim.” Jenkins v. Commonwealth, 496 S.W.3d 435, 446 (Ky. 2016) (citing
Gibbs v. Commonwealth, 208 S.W.3d 848, 856 (Ky. 2006) (discussing statutory
amendments in 1988 and 1996 eliminating any requirement that the victim
resist her attacker and holding that, in that case, the defendant’s “act of taking
[the victim’s] hand and placing it on his penis” satisfied the physical force
element for purposes of a directed verdict motion)).

The Commonwealth alleged that Appellant, who wasn six feet, two inches
tall and weighed over 300 pounds, committed sodomy in March of 2012 when
he performed oral sex (deviate sexual intercourse) on Betty, who was less than
five feet tall and weighed a third of what Appellant weighed. Betty testified to
the act of oral sodomy and she described her effort to resist Appellant’s
' advances and to push him off of her, She explained that he succeeded only
after she got “just so tired of trying to fight it” that she just “let it happen.”
That testimony satisfies the Commonwealth’s burden for overcoming a directed

verdict on that charge.

2) First-Degree Sexual Abuse

Appellant further contends that he was entitled to a directed verdict on
the first-degree sexual abuse charge which allegedly occurred in Betty’s
bedroom in January of 2012. Betty testified that Appellant entered her room
wearing only boxer shorts, got into bed with her and asked her to remove her

pants. Betty removed her outer shorts but kept on a pair of spandex

17

undershorts. She resisted Appellant’s attempt to pull down the spandex shorts
but he persisted. According to Betty, Appellant’s persistent effort caused her to
touch his penis “open-handedly,” as she described it, causing Appellant to
attain an erection.

KRS 510. 1 10 provides that:

(1) A person is guilty of sexual abuse in the first degree When:

(a) He or she subjects another person to sexual contact by forcible
compulsion. . . . '

(Emphasis added.) Betty’s testimony satisfies the Commonwealth’s burden for
overcoming a directed verdict on that charge,

Accordingly, we conclude that Appellant was not entitled to a directed
verdict and that a retrial of the foregoing charges is not barred.

C. Upon retrial, the jury instructions must be redrafted to assure jury
unanimity.

Because the issue may arise upon retrial, we address Appellant’s
argument that the jury instructions for first-degree sodomy and first-degree
sexual abuse resulted in a unanimous verdict violation. We agree with
Appellant on that point.

“Section 7 of the Kentucky Constitution requires a unanimous verdict.”
Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). “A violation of this
provision may occur in several ways; however, as relevant here and as we
explained in Johnson, a general jury verdict based upon a single instruction
convicting a criminal defendant of a crime when two or more separate

instances of that single crime were presented at trial violates the requirement

18

of a unanimous verdict.” Ruiz v. Commonwealth, 471 S.W.3d 675, 678 (Ky.
2015), as modified (OCt. 29, 2015) (citing Johnson v. Commonwealth, 405
S.W.3d 439, 449 (Ky. 2013)). “The clear import of Johnson is that a verdict is
not unanimous unless all of the jurors based their conviction of the defendant
on the same criminal act; and that the instructions and verdict forms must be
couched in language that eliminates any ambiguity regarding the jury’s '

consensus.” Id.

1) First-Degree Sodomy Instruction

The first-degree sodomy instruction under which Appellant was found
guilty referenced specifically the March 2012 event and was intended to refer to
Appellant’s act of oral sex on Betty. However, as Appellant notes, Betty’s
testimony also included on the same occasion, Appellant’s demand that Betty
perform oral sex on him, and she complied. That act also constituted sodomy
as defined in the jury instruction but Appellant was not charged with that act.
The jury instructions given did not distinguish between the two acts or inform
the jury as to Which act was being prosecuted, Consequently, it cannot be
concluded with any certainty that the jurors unanimously agreed upon the
same act When reaching their verdict. Upon retrial, assuming the evidence to
be substantially the same, the instructions must describe more specifically the
particular act for which Appellant was charged. The phrase “engaged in
deviate sexual intercourse with B.N. by performing oral sex on [Betty]” would
adequately distinguish between the two acts of sodomy which occurred in the
. March 2012 episode.

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2) First-Degree Sexual Abuse Instruction

The relevant first-degree sexual abuse instruction specifically referred to
the January 2012 episode and was intended to refer to the event Betty testified
to when she touched Appellant’s penis “open-handedly.” Appellant’s statement
to the police referred to a second touching of Betty’s hand on Appellant’s penis
when he had her stimulate him to ejaculation. Betty’s testimony confirmed
that incident. Upon retrial the instruction on this charge should be phrased so
as to more clearly direct the jury that the instruction is in relation to Betty’s
testimony that in January 2012 she touched Appellant’s penis “open-
handedly.”

D. KRE 404(b) issues
Appellant next contends that in violation of KRE 404(b), the trial court

allowed the Commonwealth to introduce five instances of prior bad acts he had
committed. Appellant concedes that four instances were not preserved, and so
he requests review of those under the palpable error standard of RCr 10.26.
The preserved error relates to-the evidence of the January 20 12

uncharged act of sodomy when Betty stimulated Appellant’s penis. KRS 404(a)
prohibits the introduction of “[e]vidence of a person’s character or a trait of
character . . . for the purpose of proving action in conformity therewith on a
particular occasion[.]” However, KRE 404(b) provides an exception to KRE

404(a) as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible: (1) If offered for some
other purpose, such as proof of motive, opportunity, intent,

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preparation, plan, knowledge, identity, or absence of mistake or
accident.

We have observed that prior acts committed against the same victim,
similar to the conduct on trial, will often if not usually, have relevance other
than merely establishing a propensity to commit the crime charged, thus falling
within the KRE 404(b) exception. Dn`ver v. Commonwealth, 361 S.W.3d 87 7 ,
884 (Ky. 2012). Betty’s testimony that she previously fondled Appellant’s penis
is relevant to prove the motive and intent of the act charged. We find no error
in its admission as evidence.

We decline to address the instances of unpreserved error. Because no
objection was made at trial, we have no trial court ruling on the issue to review.
Since the case is remanded for further proceedings in the trial court, Appellant
will have a sufficient opportunity to secure the trial court’s ruling if the same

evidence is proffered by the Commonwealth upon retrial.

III. CONCLUSION
For the foregoing reasons, the judgment of the Shelby Circuit Court is

reversed and the matter is remanded for a new trial.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Wright, JJ.,

concur. VanMeter, J., concurs in result only.

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COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Joseph Todd Henning
Assistant Attorney General

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