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                                2015-SC-000359-MR


CURTIS HOWARD                                                              APPELLANT


                 ON APPEAL FROM GARRARD CIRCUIT COURT
V.               HONORABLE C. HUNTER DAUGHERTY, JUDGE
                             NO. 12-CR-00077


COMMONWEALTH OF KENTUCKY                                                    APPELLEE



                 OPINION OF THE COURT BY JUSTICE KELLER

                                     AFFIRMING

       Following the trial court's denial of his motion to dismiss, Curtis Howard

entered a conditional guilty plea to three counts of incest, one count of first-

degree sexual abuse, and to being a first-degree persistent felony offender (PFO)

and was sentenced to 20 years' imprisonment. 1 The charges arose from

allegations that Howard had sexual intercourse with his adult stepdaughter.

Howard now appeals as a matter of right and argues that the incest statute

does not criminalize consensual sexual intercourse between non-blood related

adults who never had a parent/child relationship. We disagree and affirm the

trial court's judgment.

        1 Howard was originally indicted on six counts of incest, six counts of first-
degree rape, six counts of first-degree sodomy, and being a second-degree PFO. Half
of the rape and sodomy charges were alleged to have been committed against his wife
and the other half were against his stepdaughter. It is not clear from the record why
Howard plead guilty to being a first-degree PFO.
                                  I. ANALYSIS.

      Kentucky's incest statute states:

      A person is guilty of incest when he or she has sexual intercourse
      or deviate sexual intercourse, as defined in KRS 510.010, with a
      person whom he or she knows to be an ancestor, descendant,
      uncle, aunt, brother, or sister. The relationships referred to herein
      include blood relationships of either the whole or half blood
      without regard to legitimacy, relationship of parent and child by
      adoption, relationship of stepparent and stepchild, and
      relationship of step-grandparent and step-grandchild.

Kentucky Revised Statute (KRS) 530.020(1). Howard concedes that the plain

language of the statute criminalizes sexual intercourse between a stepparent

and a stepchild; however, he argues that, based on the ordinary meaning of the

word "child," "stepchild" refers only to the minor child of one's spouse by a

former partner. Given that definition, Howard argues KRS 530.020 does not

criminalize sexual intercourse between a stepfather and his adult

stepdaughter. Because this reading of the statute fails to comport with the

complete definition of "child," the remainder of KRS 530.020, and persuasive

case law, we disagree.

      While we do not wholly reject Howard's interpretation of "child," we find

that it is incomplete. The Oxford American Dictionary defines "child" as "a

young human being below the age of puberty" and also as "one's son or

daughter (at any age)." The Oxford American Dictionary of Current English 130

(Oxford University Press 1999). Thus, contrary to Howard's contention, the

definition of "child" is not limited to a minor; rather, the term applies to an

offspring of a parent, regardless of age. In the context of KRS 530.020(1),

"stepchild" refers to the son or daughter of one's spouse by a former partner at
                                          2
any age. Therefore, we hold that Kentucky's incest statute criminalizes sexual

intercourse between a stepparent and a stepchild, regardless of age and

consent.

      This interpretation is further bolstered by a full reading of KRS 530.020.

The second section of the statute provides:

      (a) Incest is a Class C felony if the act is committed by consenting

      adults.

      (b) Incest is a Class B felony if committed:

             1. By forcible compulsion as defined in KRS 510.010(2); or

             2. On a victim who is:

                    a. Less than eighteen (18) years of age; or

                    b. Incapable of consent because he or she is physically

                    helpless or mentally incapacitated.

      (c) Incest is a Class A felony if:

             1. Committed on a victim less than twelve (12) years of age;

             or

             2. The victim receives serious physical injury.

KRS 530.020(2). Where section (1) of the statute does not mention age,

subsection (2)(a) clearly characterizes incest between consenting adults as a

Class C felony. After reading both sections of the statute together, it becomes

clear that the age of the victim is not an element of the offense except for

determining the class of the felony committed. Thus, the General Assembly

undoubtedly intended to prohibit sexual intercourse with an adult stepchild


                                           3
and a minor stepchild alike. Howard's argument that Kentucky's incest statute

does not criminalize sexual intercourse between related, consenting adults

must fail because the statute contemplates and prohibits such a scenario.

      This interpretation of KRS 530.020 is not novel; the Court of Appeals has

construed stepparent-incest similarly in at least two published opinions. In

2004, the Court, in Dennis v. Commonwealth, 156 S.W.3d 759, 762 (Ky. Ct.

App. 2004), held that Kentucky's incest statute 2 prohibited sexual intercourse

between a stepparent and stepchild. Dennis argued that KRS 530.020

prohibited sexual intercourse between a stepparent and stepchild only if a

blood relationship also existed. Id. at 760-61. The Court disagreed,

considering legislative commentary from 1974 and a Kentucky Attorney

General Opinion, which both interpreted KRS 530.020 to prohibit sexual

intercourse between a stepparent and a stepchild, regardless of blood

relationship. Furthermore, the Dennis Court noted that the Supreme Court

had impliedly concluded that KRS 530.020 prohibited sexual intercourse

between a stepparent and stepchild. Id. at 762 (citing Talbott v.

Commonwealth, 968 S.W.2d 76, 85 n. 1 (Ky.1998) (in dicta, the Court noted

that "sexual intercourse between stepparent and stepchild is incest[.]") and

Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997) (the Court affirmed an

incest conviction against a defendant who sexually abused his stepdaughter

without addressing the fact that the victim was his stepdaughter)).


      2 We note that the Dennis Court interpreted a prior version of KRS 530.020;

however, the substance of the statute as to stepparent-incest has remained
unchanged.
                                          4
       In Raines v. Commonwealth, 379 S.W.3d 152 (Ky. Ct. App. 2012), the

Court of Appeals considered the effect of age on stepparent-incest. There,

Raines argued that KRS 530.020 3 did not criminalize sexual intercourse

between a stepfather and an adult stepdaughter who was not related by blood.

Id. at 153-54. After briefly discussing Dennis, the Court disagreed with Raines

and found that a plain reading of KRS 530.020 did not include the victim's age

as an element of the crime and that "the primary element for incest [was] the

relationship of the parties." Id. at 154. Therefore, the Court held that "the

legislative intent [was] to prohibit sexual intercourse between persons with

such relationships, including stepparents and stepchildren."          Id.

       The Raines Court found further support for its holding in the

unpublished decision in Jones v. Commonwealth, No. 2004-CA-002639-MR,

2007 WL 288280 (Ky. Ct. App. Feb. 2, 2007). On nearly identical facts to

Raines, the Court considered Jones's Kentucky Rule of Criminal Procedure

(RCr) 11.42 motion, in which Jones argued that his trial counsel was ineffective

for advising him to plead guilty to incest. Id. at *1-*2. Jones, like Howard

herein and Raines, maintained that KRS 530.020 only prohibited sexual

intercourse between a stepparent and a minor stepchild. Id. at *2. The Court

disagreed, reasoning that "stepchild" encompassed both an adult and minor

child of one's wife or husband and finding that the "family unit is equally

threatened by sexual relations between a stepparent and adult stepchild as



       3 Again, we note that the Raines Court considered a version of KRS 530.020
that was slightly different from the version interpreted in Dennis as well as the version
interpreted herein. Those differences do not alter the analysis as to stepparent-incest.
                                            5
between a stepparent and minor stepchild." 4 Id. at *3. The Raines Court

concurred with this reasoning and holding without reservation.            Raines, 379

S.W.3d at 155.

       Howard urges this Court to overrule Raines and Jones, but we are not

persuaded. Both cases are factually on point and present nearly identical

issues and arguments to the case at hand. While it is true that Jones is an

unpublished decision and its procedural posture is framed differently, i.e.

considering the stepparent-incest issue in the context of an RCr 11.42 appeal,

the analysis and reasoning of the substantive law is nonetheless relevant and

persuasive. Furthermore, Raines adopts Jones's reasoning to support its

nearly identical holding.

       We are also persuaded by Raines and Jones on the merits of their

reasoning. As stated above, the complete definition of "child" includes minor

and adult offspring of a parent. To ignore this portion of the definition is

untenable. Moreover, it is evident that sexual intercourse between a

stepparent and an adult stepchild threatens the family unit, and Howard's

arguments to the contrary do not persuade us to depart from this position.

       Howard submits two cases from outside of Kentucky that he argues

support his contention; however, we do not find them persuasive. Both Beam

v. State, 1 So. 3d 331 (Fla. Dist. Ct. App. 2009) and Commonwealth v. Rahim,



        4 Special Judge Miller dissented from Jones, saying, "I do not interpret KRS

530.020 as criminalizing sexual relationships between a stepparent and a stepchild
over 18 years of age as it does not deprecate the family unit nor implicate hereditary
risk. I do not believe the legislature intended the term "stepchild" to apply to a person
over 18 years of age." Id.
                                              6
805 N.E.2d 13 (Mass. 2004) interpret state statutes which require sexual

relations between individuals related by consanguinity, or blood, for incest to

be committed. See Fla. Stat. Ann. § 826.04 (West 2006) and Mass. Gen. Laws

Ann. ch. 272 § 17 (West 2002). KRS 530.020 requires no such relationship

and by its own terms contemplates incest between non-blood relatives,

including a parent and a child by adoption, a stepparent and a stepchild, and a

step-grandparent and a step-grandchild. 5 KRS 530.020(1). Therefore, because

Kentucky's incest statute is wholly different from those of Florida and

Massachusetts, the cases interpreting those statutes are distinguishable and

not persuasive.

                                 II.. CONCLUSION.

      For the reasons stated above, we affirm the trial court's denial of

Howard's motion to dismiss and judgment.


      All sitting. All concur.




       5 Howard argues that this Court should consider Bradford v. Commonwealth,
345 S.W.3d 245 (Ky. Ct. App. 2011), wherein the Court of Appeals held that the
General Assembly did not intend to extend the reach of KRS 530.020 to the step-
grandparent/step-grandchild relationship. We note that this case has been overruled
by statute, as the following year the General Assembly amended KRS 530.020(1) to
explicitly include the relationship of step-grandparent and step-grandchild. 2012 Ky.
Acts ch. 148, § 4 (effective July 12, 2012).
COUNSEL FOR APPELLANT:

Jason Apollo Hart
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General

Jason Bradley Moore
Assistant Attorney General




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