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King v. Commonwealth - 554 S.W.3d 343 (Ky. 2018)

Rule:

Duplicitous instructions do not provide the same guarantee that all the jurors agreed as to the offense. Rather, a duplicitous instruction allows the jury to convict a defendant of one crime based on two separate and distinct criminal acts that violated the same criminal statute. In that situation, the "multiple theories" analysis is inapplicable, and the duplicitous instruction violates the requirement of a unanimous verdict, regardless of whether sufficient evidence existed of both criminal acts.

Facts:

A.S. was a minor child, born in 2005. A.S.'s parents were heroin addicts who were frequently absent or incarcerated, so A.S. and her older brother lived with their biological grandmother, Hope King, and her husband, defendant Ronald King. Hope worked full-time, and King was unemployed; he watched A.S. when Hope was at work or at the store and was alone with her often. When King was incarcerated in 2014, it was discovered that King had started touching A.S.'s genitals when the family lived in the brown trailer, when she was four, and had also showed her magazines with photographs of people with no clothing. She testified that King had forced her to touch his genitals as well, which she described as two spheres and a cylinder. The jury found King guilty of first-degree sodomy, and both counts of first-degree sexual abuse. The jury recommended a sentence of life imprisonment on the sodomy count, and ten years for each of the sexual abuse counts, to run consecutively for a total sentence of life. The trial court sentenced King accordingly. King appealed as a matter of right.

Issue:

Was King's conviction for sexual abuse proper?

Answer:

No.

Conclusion:

The court reversed King's convictions on two counts for first degree sexual abuse because it found that the pertinent jury instructions were "duplicitous" in violation of the Kentucky Constitution's unanimous verdict requirement. The court, however, did note that the trial court did not err in impeaching the victim's testimony or admitting a prior Child Advocacy Center interview, as King had ample opportunity to impeach the victim's testimony and the manner was properly suited for a child, and the prior interview was not admitted to vouch for or bolder the victim's testimony. Lastly, although the trial court erred by admitting recorded phone calls as an adoptive admission under Ky. R. Evid. 801A(b)(2), the error was harmless given the other evidence presented at trial, especially the victim's in-court testimony.

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