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Date: 04-18-2020
Case Style:
THOMAS D. JACOBS V. COMMONWEALTH OF KENTUCKY
Case Number: 2018-SC-000366-MR
Judge: MEMORANDUM OPINION OF THE COURT
Court: Supreme Court of Kentucky
Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General
Defendant's Attorney:
Need help finding a lawyer for representation for appealing seven claims of error in an appeal, alleging: (1) the trial court erred when it failed to grant a separate trial for the tampering with a witness charge; (2) the trial court erred when it failed to exclude the testimony 2 of Joseph Caldwell or, in the alternative, grant a continuance; (3) the trial court erred when it allowed two witnesses to mention Jacobs’s incarceration on other charges; (4) the trial court erred when it ruled Jacobs “opened the door” to inadmissible evidence that had been previously excluded when he was asked impermissible and highly prejudicial questions; (5) the trial court erred when it failed to grant a directed verdict; (6) the trial court erred when it instructed on multiple offenses for the same act, violating Jacobs’s right to be free from double jeopardy; and (7) he was denied a fair trial due to cumulative error in Kentucky?
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Understanding this case begins with the people involved and their
relationships to each other. Thomas Jacobs and Jackie Moore were long-time
friends. Moore claimed he practically raised Jacobs. Jacobs was also close to
Moore’s wife, Melissa Chesser, who saw Jacobs as a brother and best friend.
Moore, Chesser, and their two daughters Katy and Freda, moved into a house
on Lake Avenue in 2010, a couple of houses down the street from Katy’s best
friend, Melanie.
1 Jacobs often slept in the residence, and sometimes nearby in
his car or in the garage.
Jacobs and Moore worked together doing whatever work they could find,
including tearing down houses and barns. Katy (Moore and Chesser’s oldest
daughter) said that after the family moved into the Lake Avenue home, Jacobs
1 Pseudonyms are used to protect the privacy of the juveniles and victims of
alleged crimes.
3
began molesting her when she was eleven years old. The abuse continued for
three years.
In January 2016, the Lake Avenue house burned. This event is the
central reference point for describing when Jacobs perpetrated some of the acts
of sexual abuse upon Katy, as well as Katy’s age at the time of the acts. After
the old house burned, a new house was built at the same location, and while it
was being built, the family rented a house nearby for a year. The family moved
into the new house on Lake Avenue in January 2017.
After moving into the new house, Chesser suffered increasingly difficult
health problems and was, on at least one occasion, admitted to the University
of Louisville Hospital. Chesser and Moore had marital difficulties during this
time including separating and getting back together. The marital problems and
Chesser’s health problems frequently left the two children in Jacobs’s care.
Jacobs testified he often cooked for the family. After the family moved into the
new Lake Avenue home, Jacobs no longer lived or stayed at the house,
although he continued to be a frequent visitor.
According to Katy, some sexual acts occurred in the old house on Lake
Avenue when she was eleven years old. Other sexual acts occurred at other
locations or in the new house on Lake Avenue when Katy said she was twelve
or thirteen. Katy said everything began with her crush on Jacobs, but nothing
came of this crush until she was eleven years old. Katy said she knew it
happened when she was eleven when “she did not know the difference between
right and wrong.”
4
One evening while the family lived at the old house, Katy and her best
friend Melanie were playing in the yard. When it got dark, Moore walked
Melanie home, a couple of doors down from the old Lake Avenue house.
Jacobs walked down from the garage next to the Lake Avenue house, kissed
Katy, and grabbed her buttocks. Jacobs told her not to tell anyone, but Katy
told Melanie. Katy said she was eleven years old when this happened.
Prior to the house burning, one afternoon Jacobs picked up Katy and her
younger sister Freda from school, an occurrence that other witnesses said was
common, but Jacobs said was unusual. When the three arrived home, no one
else was present. Katy took a shower and after she got out of the shower,
Jacobs walked in on her. Jacobs left but came back and locked the door. Katy
said Jacobs placed his penis in her vagina while she lay on her back on a small
freezer in the bathroom. The sexual intercourse was interrupted when Freda
banged on the door.
Katy testified she was eleven years old at the time of the bathroom
incident. This event is dated to the old house on Lake Avenue because the
freezer was only in the bathroom at the old house.
On another occasion while the family lived at the old house, Jacobs took
the children to the Dickens Christmas parade. After they returned, Katy was
with Moore in the garage while he worked on a car. Jacobs told Katy to come
over to a neighbor’s garage located a few feet from where Moore was working.
There, the two began making out and performed oral sex on each other. No
sexual intercourse happened on this occasion because the activity stopped
5
when Chesser called Katy to come take her medicine. Katy said she was eleven
years old at the time of the garage incident. She made an entry in her diary
describing the sex acts. That diary entry became an important piece of
evidence at Jacobs’s trial.
During the time the family lived in the temporary house and after they
moved into the new house on Lake Avenue, Jacobs took the children to school
in Chesser’s van. The number of times this occurred was the subject of
disagreement between Jacobs who claimed only three times and Chesser who
said it was often. Jacobs claimed Freda, the youngest child, would not ride
with him. According to Katy, on multiple occasions, Jacobs dropped Freda off
at school first and then took Katy to a secluded location near a lumber yard
where he had sexual intercourse with her.
Katy described the acts of sexual intercourse near the lumber yard in
detail—beginning with her removing her pants and sitting in the front
passenger seat on Jacobs’s lap facing him and, on one occasion, facing away
from him. On each occasion, Katy was clear that Jacobs placed his penis in
her vagina. Katy saw Jacobs wipe away ejaculate one time with a napkin and
discard it out the window. After having sexual intercourse with Katy, Jacobs
would take her to school. Katy said these acts occurred when she was twelve
or thirteen.
Katy also testified as to an occasion of sexual abuse when she was
twelve. On that evening, she went in a garage and Jacobs followed her. Katy
6
said the two made out and Jacobs grabbed her buttocks. Jacobs did not
subject the pre-teen to intercourse on this occasion.
The sixth and final incident about which Katy testified occurred at the
new house on Lake Avenue, when Chesser was gone for medical testing. Katy
was asleep on the couch in the living room and Jacobs woke her up. The two
started kissing and Katy performed oral sex on Jacobs. Moore was in his
bedroom located at the end of a hallway connected to the living room, and
when he opened his bedroom door, Jacobs told her to stop. Moore did not see
what had been going on just moments before and Katy pretended she was
asleep.
Several witnesses’ testimony, including Chesser’s and Moore’s, provided
a timeline of events. Jacobs argues on appeal that even if the acts happened
as Katy described them, the acts could not have occurred when Katy was
eleven, the age Katy claimed. Jacobs’s calculation is based on Katy’s school
year and what other witnesses said about various dates.
At trial, witnesses testified regarding observations they had made
indicative of an inappropriate relationship between Jacobs and Katy. For
instance, Joseph Caldwell, a friend of Moore and Jacobs, caught Katy with a
love note. Thinking the note was for a school boy, Caldwell grabbed it and read
part of it. Upon realizing the note was not for a school boy, but, instead, was
intended for Jacobs, Caldwell raised his concerns with Moore and Jacobs.
7
Chesser testified that she became suspicious when Katy had an
emotional melt-down and left the house when Jacobs brought his new
girlfriend, Brittany, to the new Lake Avenue home. Chesser found Katy crying
in the backyard and when she asked her daughter what was wrong, Katy
responded that Chesser would not understand. Following this event, Chesser
set out to figure out what was going on with her daughter.
Over the next four months, Katy would tell her mother very little.
Chesser decided to search Katy’s room and found a hat and shirt belonging to
Jacobs hidden in a closet. A diary with a page missing also turned up in the
search. Later, Chesser found ripped-up paper in a backpack pocket and reassembled the scraps to form the missing diary page. After Chesser read the
diary entry, she spoke to Katy’s pediatrician, the county attorney, and,
ultimately, Sergeant Keene of the Lebanon Police Department.
2 Chesser shared
with Sergeant Keene the items she found and took his advice to have Katy seen
at the Lebanon Physicians for Women Clinic and interviewed by the Silverleaf
Sexual Trauma Recovery Services. Katy’s physical examination proved normal
and Katy told her pediatrician that she had not had sex.
While Chesser’s quest for answer was ongoing, Katy invited her best
friend Melanie to her house for the two to spend some time together. Katy had
previously told Melanie about Jacobs and the three years of sexual abuse, but
2 When this case began, Sergeant Keene was Officer Keene. He was promoted
while the case was ongoing. Keene will be referred to in this opinion as Sergeant
Keene to avoid confusion.
8
initially Melanie did not believe her. During this visit, Melanie decided to
record hers and Katy’s conversation on her phone. In this recorded
conversation, Melanie asked Katy about Jacobs and Katy spoke freely about
the ongoing three-year “relationship,” claiming that she loved Jacobs and was
going to marry him. On the recording, Katy also discussed having sex with
Jacobs on five occasions. Melanie’s mother turned the recording over to
Chesser, who gave it to Sergeant Keene.
As noted above, Caldwell, a friend of Moore and Jacobs, saw Katy with a
note in her hand. After joking and taking it from Katy, Caldwell realized the
note was for Jacobs. Caldwell told Moore someone needed to talk to Katy.
Caldwell also talked with Jacobs and told him this could never happen. As far
as Caldwell knew, nothing was done about the letter. The next time anyone
heard from Caldwell about the note was the week before trial was scheduled to
begin. At that point, Caldwell went to the Lebanon Police Department and gave
a recorded statement to Sergeant Keene about the events surrounding the love
note.
Most of the Lebanon Police Department office staff had left for the
evening and Sergeant Keene was unable to make copies of the interview that
night. On Thursday morning, the recording was entered into the police system
and copies were made. The Commonwealth provided a copy to Jacobs on
Thursday, which was as soon as the Commonwealth had a copy in its
possession to provide. Trial was scheduled to begin the following Monday
morning.
9
Jacobs moved to exclude the testimony of Caldwell citing RCr 7.26’s
requirement to provide witness statements 48 hours before trial. Jacobs
argued the 48 hours did not include the weekend, so delivery was not timely.
The Commonwealth responded that it knew of no reason why the weekend did
not count for the required 48 hours and the Commonwealth provided the
statement as soon as it could.
It is undisputed that neither party had any reason to know about
Caldwell and what he had to say before he walked into the Lebanon Police
Department. The trial court overruled Jacobs’s motion and allowed Caldwell to
testify. Finding the Commonwealth did all it could do to provide the statement
in a timely manner and finding the 48-hour rule did not exclude weekends, the
trial court also denied Jacobs’s motion for a short continuance to investigate
the statement.
After the police investigation began, but prior to Jacobs’s indictment, he
was arrested on other charges unrelated to this appeal. While in jail on those
charges, Jacobs called Sergeant Keene, the lead officer in charge of
investigating the case against Jacobs involving Katy. The calls were recorded.
Jacobs told Sergeant Keene that he had video of Keene raping Jacobs’s wife,
Brittany. Sergeant Keene said for Jacobs to file a complaint and bring in the
video. The next day, Kentucky State Police Trooper Carlock met with Jacobs
who told the trooper he now believed the allegation was not true and he did not
want to pursue the complaint. Jacobs was indicted for tampering with a
witness based on the phone calls to Sergeant Keene.
10
Prior to trial, Jacobs moved to sever the tampering with a witness charge
from the charges involving his alleged sexual acts with Katy. Jacobs claimed
the tampering with a witness charge lacked the required connection to the
underlying sex charges. The Commonwealth disagreed with Jacobs, arguing
the tampering charge had the required connection. The trial court stated it
was a close call, but ultimately denied the motion to sever.
During Moore’s testimony, he made a reference to he and Jacobs both
serving prison time. Jacobs did not object to this reference. Later in the trial,
Sergeant Keene testified that Jacobs “got locked up” (referring to the other
charges for which Jacobs was in jail when he made the phone calls). Sergeant
Keene’s reference drew an objection and a motion for a mistrial. The trial court
overruled the objection, denied the motion for mistrial, and admonished the
jury.
During trial, Katy described sexual acts including intercourse in the
bathroom on the freezer and in the van. Katy was asked on cross examination
about her statement to her pediatrician that she had not had sex. The
Commonwealth asserted this question opened the door to allow previouslyexcluded evidence including the re-assembled diary page, the recording of the
conversation between Katy and Melanie, and Melanie’s testimony about the
things Katy had previously told Melanie regarding sexual acts between Katy
and Jacobs. The trial court ruled the Commonwealth could introduce one of
the three items. The Commonwealth called Katy back to the stand and she
read the re-assembled diary entry. The diary entry described the sexual acts
11
(including oral sex performed by Katy on Jacobs and oral sex performed by
Jacobs on Katy) that occurred in the neighbor’s garage the night of the Dickens
Christmas parade.
While testifying during direct examination, Jacobs denied ever touching
Katy. On cross-examination Jacobs was asked if Katy made the whole thing
up, and if her testimony and the diary entry were total fabrications. After
Jacobs said yes to the questions, the Commonwealth renewed its efforts to put
Melanie on the stand, claiming Jacobs had opened the door to the testimony.
Jacobs’s attorney objected, claiming Jacobs was just asserting his innocence.
Jacobs’s attorney told the court she should have objected to the
Commonwealth’s questions asking Moore to comment on Katy’s truthfulness
and belatedly realized her mistake.
The trial court allowed Melanie to testify in rebuttal and allowed the
Commonwealth to play the recording Melanie made of her conversation with
Katy. Melanie testified Katy told her about the sexual “relationship” with
Jacobs on earlier occasions before the evening that she made the recording.
Melanie’s and Katy’s testimony differed on how many times Katy said Jacobs
had subjected her to sexual intercourse and where in the house the acts
occurred.
The trial court overruled most of Jacobs’s motions for directed verdict
but did grant directed verdicts of acquittal on four counts. Jacobs’s proposed
jury instructions were denied and his objections to the instructions were
overruled. The trial court ultimately instructed the jury on multiple alternative
12
offenses, giving the jury choices for different offenses based on Katy’s age at the
time it believed the crimes took place. The jury returned guilty verdicts for the
above-listed offenses, including offenses that occurred when Katy was eleven.
Jacobs was also found to be a persistent felony offender in the first degree.
Further information will be developed as needed.
II. ANALYSIS
A. Severance of the Tampering Charge
Jacobs asserts the trial court erred when it failed to grant his pretrial
motion to sever the tampering with a witness charge. The charges arose out of
two phone calls from Jacobs to Sergeant Keene prior to Jacobs’s indictment for
the sexual offenses involving Katy.
The timing of events is important in understanding the trial court’s
ruling. Concerned over what she found in Katy’s room (particularly the torn-up
and re-assembled diary entry), Chesser went to the Lebanon Police Department
and met with Sergeant Keene. Sergeant Keene interviewed Jacobs on May 7,
2017, and officially opened his investigation on May 23, 2017. Throughout the
pendency of this case, Sergeant Keene was the primary investigating officer.
While pursuing his investigation, Sergeant Keene sought to collect cell
phones belonging to Jacobs. Eventually, Jacobs was arrested on other
unrelated matters and Sergeant Keene collected two cell phones from Brittany,
Jacobs’s wife. On September 9, 2017, Jacobs called Sergeant Keene and
alleged that Sergeant Keene had raped Brittany, telling her if she did not have
sex with him, he would put Jacobs away. Jacobs told Sergeant Keene that the
13
threats and rape were recorded on video. Sergeant Keene told Jacobs to file a
complaint and bring the video to the police captain. Jacobs said the first time
Sergeant Keene would see the video would be at trial and Sergeant Keene
needed to come see him.
The next day, Kentucky State Trooper Carlock interviewed Jacobs about
the complaint. Jacobs told him he no longer believed the allegations to be true
and that he did not desire to pursue the complaint. Jacobs was indicted on
December 4, 2017.
Prior to trial, Jacobs filed a motion to sever the tampering with a witness
charge from the other charges. Jacobs argued there was not a required nexus
between the tampering with a witness charge and the other charges. Jacobs
further argued he would be prejudiced by joinder of the charges pursuant to
RCr 8.31. The Commonwealth asserted the charges were inextricably
intertwined and relied on Elam v. Commonwealth, 500 S.W.3d 818 (Ky. 2016).
The trial court described the phone call as a delusional rant or inferred threat.
After hearing arguments and reviewing Elam, the trial court overruled Jacobs’s
motion to sever. Jacobs was convicted of tampering with a witness.
“We review the trial court’s denial of a motion to sever for abuse of
discretion . . . and the burden is on the appellant to show that the denial was
in fact unfairly prejudicial.” Peacher v. Commonwealth, 391 S.W.3d 821, 834
(Ky. 2013) (citing Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky.2011)); see
also Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993) (“We start with
the general proposition that a trial court has broad discretion with respect to
14
joinder, and will not be overturned absent a showing of prejudice and clear
abuse of discretion.”); Rachel v. Commonwealth, 523 S.W.2d 395, 400 (Ky.
1975) (“If upon the consideration of the case a trial judge orders a joint trial, we
cannot reverse unless we are clearly convinced that prejudice occurred and
that the likelihood of prejudice was so clearly demonstrated to the trial judge
as to make his failure to grant severance an abuse of discretion.”). “The test for
abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). “A significant
factor in identifying such prejudice is the extent to which evidence of one
offense would be admissible in a trial of the other offense.” Rearick, 858
S.W.2d at 187.
As noted above, the trial court relied on Elam, 500 S.W.3d 818. In that
case, we extensively discussed joinder of a tampering with a witness charge
and charges involving allegations of sexual crimes against children. We
referenced prior authority saying, “[t]here must be a sufficient nexus between
or among them to justify a single trial.” Peacher, 391 S.W.3d at 837. “The
primary test for determining if the consolidation of different crimes for a single
trial creates undue prejudice is whether evidence necessary to prove each
offense would have been admissible in a separate trial of the other.” Roark v.
Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002).
In addition to our holding in Elam, the trial court also relied on this
Court’s decision in Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998).
15
There, we said, “[a]ny attempt to suppress a witness’ testimony by the accused,
whether by persuasion, bribery, or threat, or to induce a witness not to appear
at the trial or to swear falsely, or to interfere with the process of the court is
evidence tending to show guilt.” Id. at 29-30.
In this case, the evidence regarding the alleged acts of sexual abuse
Jacobs perpetrated against Katy would be admissible in a separate trial for
tampering with a witness. If not, Jacobs’s calls to Sergeant Keene (the lead
investigator in the case concerning Katy’s abuse) would lack context, as there
would be no evidence of a connection between the investigating officer and
Jacobs.
Jacobs notes the passage of months between his interview with Sergeant
Keene and the phone calls as indicative of a lack of connection. However, the
calls cannot be viewed in isolation but must be viewed in the context of the
ongoing investigation being conducted by Sergeant Keene. This investigation
took place over several months and the amount of time involved is of little
consequence.
If the counts were severed, and the sex counts tried first, the calls would
be admissible as evidence of Jacobs’s guilt concerning the allegations by Katy.
If the tampering with a witness charge was tried first, the sexual allegations
and evidence relating to those charges, the reason for the investigation by
Sergeant Keene, would be admissible at that trial. Separate trials are not
required.
16
In summary, joinder was appropriate. As we said in Elam, “[f]requently,
for all of the advantages of consolidating charges cited in Peacher, joining a
charge of tampering with a witness with the trial of the underlying charge will
not only be proper, but may also be preferable.” Elam, 500 S.W.3d at 824. The
trial court did not abuse its discretion in overruling Jacobs’s motion to sever
the tampering with a witness charge.
B. Motion to Exclude Testimony or Grant a Continuance
Jacobs claims the trial court erred when it failed to exclude the
testimony of Joseph Caldwell or, in the alternative, grant him a continuance to
investigate the statement. The issue concerns Caldwell’s recorded statement to
police and whether Jacobs received it in a timely manner prior to trial.
Caldwell gave the statement to Sergeant Keene on the evening of Wednesday,
April 18. Sergeant Keene testified that there was no one in the office who could
copy the statement until the following morning. The Commonwealth provided
Jacobs a copy of Caldwell’s recorded statement on Thursday, April 19. On
Monday, April 23, the morning the trial was set to begin, Jacobs moved to
exclude the statement and Caldwell’s testimony, claiming it violated the fortyeight-hour rule in RCr 7.26. In the alternative, Jacobs moved for a
continuance to investigate the statement. Underlying Jacobs’s motion, his
appointed counsel claimed a lack of access to investigative services over
weekends.
17
Katy did not mention Caldwell, or the love note incident, in her
statements to Chesser or to Sergeant Keene. Caldwell’s name did not come up
during any other witness interview.
It is undisputed that Caldwell came to the Lebanon Police Department
on the Wednesday evening before trial of his own volition. When he spoke with
Sergeant Keene that evening, it was the officers’ first knowledge Caldwell had
anything to say about Jacobs’s case . Jacobs’s counsel also indicated no prior
knowledge of Caldwell and what he had to say before receiving the recorded
statement the Thursday before trial.
After Sergeant Keene finished the interview with Caldwell, he was unable
to make copies of the recording asthe office workers that knew how to load the
recording into the police system had already left work for the evening. The next
morning, the recorded interview was entered into the system. A copy was made
and delivered to the Commonwealth, which promptly provided a copy to
Jacobs’s counsel. According to the Commonwealth’s response to Jacobs’s
motion to exclude or continue, the copy was provided by noon on Thursday,
April 19.
The morning of trial, the trial court heard Jacobs’s motion to exclude the
testimony of Caldwell or grant a brief continuance for him to investigate the
statement. Jacobs asserted that because of the intervening weekend, he did
not receive the full forty-eight hours required by RCr 7.26. When asked by the
trial court for authority supporting his argument that the forty-eight-hour-rule
did not include weekends, Jacobs did not provide authority beyond the written
18
motion. In his reply brief, Jacobs states: “While it is true that defense counsel
did not state what rule it was, it did state the rule.” Jacobs makes no reference
to the record in his reply brief in support of this claim. A review of Jacobs’s
pretrial arguments does not reveal counsel stating the rule with or without the
rule number. Trial counsel’s assertions were made only pursuant to RCr 7.26.
On appeal, Jacobs argues that RCr 1.10 excludes weekends in the
calculation of time. The Commonwealth objects to this argument as it was not
raised at the trial level. A review of the record makes clear that no reference to
RCr 1.10 (by number or content) was made. Rather, the defense merely said
the time period should exclude weekends, and when asked for a citation to
support its argument, it could provide none—only emphasizing that it did not
have access to an investigator over the weekend.
The Commonwealth objects to Jacobs’s claim of prejudice when he was
denied a brief continuance because Jacobs did not indicate how a continuance
would have benefitted him. Finally, the Commonwealth asserts Jacobs’s
claims amount to harmless error.
The trial court heard Jacobs’s motion and the Commonwealth’s
response. Jacobs’s motion to exclude was overruled and his motion for a
continuance was denied. Caldwell testified about the incident and the note,
but not about the note’s contents. Caldwell also testified about the dismissive
responses from Moore and Jacobs.
We review the trial court’s decision to permit the testimony of Caldwell
under an abuse of discretion standard. Beaty v. Commonwealth, 125 S.W.3d
19
196, 202 (Ky. 2003), abrogated on other grounds by Geary v. Commonwealth,
490 S.W.3d 354 (Ky. 2016). “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d
575, 581 (2000) (citing Commonwealth v. English, 993 S.W. 2d 941, 945
(1999)).
In our analysis, we must first determine whether the Commonwealth
providing the statement on the Thursday before trial began Monday violated
the forty-eight-hour rule found in RCr 7.26. It is clear, that prior to
Wednesday evening neither party had any indication that Caldwell was a
potential witness. Caldwell’s arrival Wednesday evening at the Lebanon police
station was not at police request. Caldwell’s statement can aptly be described
as dropping out of thin air. There is no indication the Commonwealth or the
police withheld from Jacobs the identity of the witness or the statement.
A review of the orders and documents in this case reveals no written
order of discovery in the file provided for our review—nor does Jacobs provide
us with a citation for such. The trial court’s handwritten arraignment order
has no indication that discovery was ordered. The record includes notices of
discovery and motions for reciprocal discovery filed by the Commonwealth.
Jacobs’s motions regarding discovery and counseling records are also included.
However, no written order of discovery exists in the record we have before us.
Absent an order, we begin with the text of RCr 7.26:
Except for good cause shown, not later than forty-eight (48) hours
prior to trial, the attorney for the Commonwealth shall produce all
20
statements of any witness in the form of a document or recording
in its possession which relates to the subject matter of the
witness’s testimony and which (a) has been signed or initialed by
the witness or (b) is or purports to be a substantially verbatim
statement made by the witness. Such statement shall be made
available for examination and use by the defendant.
There is no language within this rule indicating how an intervening
weekend is to be calculated. Jacobs’s motion to exclude Caldwell’s statement
references RCr 7.24 and RCr 7.26, but not RCr 1.10. On appeal, Jacobs raises
RCr 1.10 in support of his argument on appeal. RCr 1.10 states in relevant
part: “(a) . . . . When the period of time prescribed or allowed is less than seven
(7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded
in the computation.” While we might agree that RCr 1.10 applies to the
circumstances of this case, we note the trial court found that the
Commonwealth provided the statement as soon as possible and remarked that
it did not know what else the Commonwealth could have done. We also note
that Caldwell did not testify as to the letter’s contents; rather, Caldwell testified
about Moore’s, Jacobs’s, and his own reactions to the note.
The Commonwealth directs our attention to RCr 9.24. The rule reads as
follows:
No error in either the admission or the exclusion of evidence and
no error or defect in any ruling or order, or in anything done or
omitted by the court or by any of the parties, is ground for granting
a new trial or for setting aside a verdict or for vacating, modifying
or otherwise disturbing a judgment or order unless it appears to
the court that the denial of such relief would be inconsistent with
substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding that does not affect
the substantial rights of the parties.
21
The trial court observed that any evidence against a defendant is
prejudicial, and that was true of Caldwell’s testimony. In this case, Jacobs’s
appointed counsel asserted investigative services were unavailable over the
weekend due to funding constraints except in special circumstances, but no
witness was called to provide testimony to support that claim or explain what
“special circumstances” merited the assistance of a weekend investigator. No
witness was called to explain to the trial court what steps had been taken once
the statement was received on Thursday or were being taken once trial began
on Monday. Caldwell was not the first witness called to testify and jury
selection consumed most of the first day of trial. Simply stated, the record
clearly indicates the claim of prejudice, but no facts in support of it.
Caldwell’s testimony about the love note being an indicator of a real
problem is less significant in hindsight than it was when it occurred. This
case did not turn on Caldwell’s testimony. The case centered on what Katy had
to say, Chesser’s efforts to help her daughter, the police investigation, and
Jacobs’s actions and testimony. The admission, therefore, of Caldwell’s
testimony was not inconsistent with substantial justice. As we have held,
“even if the forty-eight-hour rule is violated, automatic reversal is not required.
Some prejudice must be found, or the error, if any, is harmless.” Gosser v.
Commonwealth, 31 S.W.3d 897, 905 (Ky. 2000), abrogated on other grounds by
Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (citation omitted).
The trial court’s decision to overrule the motion to exclude the testimony
of Caldwell or, in the alternative, to grant a continuance was not an abuse of
22
discretion. The decision was not arbitrary as there were no indications that the
police or the Commonwealth withheld Caldwell’s identity or his statement to
gain an advantage. Nothing in the record supports Jacobs’s claim that a brief
continuance would have provided him with investigative opportunities he did
not have in the days and hours that were available to him once the statement
was provided. In summary, we find no error meriting reversal on this issue.
C. Prior-incarceration Testimony
Jacobs claims the trial court erred when it overruled his motion for a
mistrial because Sergeant Keene told the jury Jacobs had been “locked up.”
The trial court denied the motion and gave the jury an admonition.
Prior to Sergeant Keene telling the jury Jacobs was locked up, Moore
testified that “me and him both had been in prison.” Jacobs did not object.
Furthermore, when Jacobs testified, he informed the jury he was a convicted
felon and repeatedly talked about his struggles with addiction, relapses, and
how Brittany saved him. Jacobs testified about alcohol, pain pills, methadone,
and going to Moore and Chesser’s home to obtain and use drugs. The
Commonwealth impeached Jacobs with an arrest for controlled substances
during a time when he claimed he was clean and sober. In response, Jacobs
said the drugs he was charged with were different than the pain pills Brittany
had saved him from and that he had been addicted to at one time in his life.
The legal standard for granting and reviewing mistrials is clear. “It is
well established that the decision to grant a mistrial is within the trial court’s
discretion, and such a ruling will not be disturbed absent a showing of an
23
abuse of that discretion.” Woodard v. Commonwealth, 147 S.W.3d 63, 67
(2004). “[M]istrial is an extreme remedy and should be resorted to only when
there is a fundamental defect in the proceedings and there is a ‘manifest
necessity for such an action.’” Id at 68 (quoting Bray v. Commonwealth, 68
S.W.3d 375, 383 (2002). It is also critical to note that “a finding of manifest
necessity is a matter left to the sound discretion of the trial court.”
Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000).
Moreover,
In reviewing a decision to grant a mistrial, the trial court must
have a measure of discretion. “The interest in orderly, impartial
procedure would be impaired if he were deterred from exercising
that power by a concern that at any time a reviewing court
disagreed with his assessment of the trial situation a retrial would
automatically be barred.”
Grimes v. McAnulty, 957 S.W.2d 223, 225 (Ky. 1997) (quoting Arizona v.
Washington, 434 U.S. 497, 513 (1978)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Goodyear Tire, 11 S.W.3d at 581
(citing English, 993 S.W.2d at 945).
In reviewing the trial court’s admonition, there is a strong presumption a
jury will follow the instructions it is given. Concerning this presumption, we
previously said:
A jury is presumed to follow an admonition to disregard evidence
and the admonition thus cures any error. Mills v. Commonwealth,
996 S.W.2d 473, 485 (Ky. 1999) (holding that “there is nothing for
us to review” when trial court cured the Commonwealth's reference
to defendant’s prior incarceration for an unspecified crime and the
defendant failed to “present any argument to rebut the
24
presumption that the trial court's admonition cured the error.”).
See also Maxie v. Commonwealth, Ky., 82 S.W.3d 860, 863 (2002);
Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 859 (1993),
overruled on other grounds by Stringer v. Commonwealth, Ky., 956
S.W.2d 883 (1997).
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). Johnson also
made clear there were limited occasions when the presumption in favor of
admonitions would not be sustained:
There are only two circumstances in which the presumptive
efficacy of an admonition falters: (1) when there is an
overwhelming probability that the jury will be unable to follow the
court's admonition and there is a strong likelihood that the effect
of the inadmissible evidence would be devastating to the
defendant, Alexander, supra, at 859; or (2) when the question was
asked without a factual basis and was “inflammatory” or “highly
prejudicial.” Derossett v. Commonwealth, 867 S.W.2d 195, 198
(Ky. 1993); Bowler v. Commonwealth, 558 S.W.2d 169, 171 (Ky.
1977).
Id. at 441.
As we said in Bartley v. Commonwealth, 400 S.W.3d 714, 736 (Ky. 2013),
we do not expect a jury to erase from their minds what they have heard. We do
not expect testimony or evidence to be “unheard.” Id at 736. We do expect
that instructions from the trial court will make clear what jurors are to
disregard and what they are not allowed to consider.
In this case, while describing his investigation, Sergeant Keene said that
he was trying to locate Jacobs to see if Jacobs would give him access to other
cell phones Jacobs possessed. When asked if he obtained the phones,
Sergeant Keene said he did, when Jacobs got “locked up.” Jacobs raised an
immediate objection and moved for a mistrial. During discussions with
25
counsel, the Commonwealth noted Jacobs had not objected when Moore talked
about he and Jacobs both having been in prison in the past. Jacobs’s counsel
asserted she had not caught the earlier reference because she had a hard time
hearing Moore.
The trial court overruled the motion for a mistrial and gave the following
admonition:
Alright ladies and gentlemen, I need to give you an admonishment
to you, and I need to make sure you listen very, very closely to this
because it’s important. Alright? There might have been an
assertion at some point during the testimony that you’ve heard
about the defendant possibly—about Mr. Jacobs—possibly having
been in jail at some point. First of all, I don’t know if he has been
in jail—and that hasn’t been proven. But, you need to understand
whether or not he has been in jail means nothing to this case.
That has absolutely nothing to do with the facts that you have to
decide, and that is not to be considered by you in any way. And
that testimony, whether true or not, whatever it might have been,
is not evidence, and you are in no way to consider that whatsoever
in your decision in this matter. And that’s the admonishment to
you.
Jacobs correctly asserts that the jury should not have been informed
that he had been in jail. Normally, admission of information about a
defendant’s prior record is limited and proper admission is often restricted to
impeachment under KRE 609 if he chooses to testify or to the sentencing
phase. In some circumstances, prior convictions may be admissible under
KRE 404. Jacobs compares Sergeant Keene’s statement to admitting mug
shots or a defendant appearing in shackles. Jacobs claims an admission such
as this impinges on his presumption of innocence.
The Commonwealth responds that the statement was cumulative and
harmless, further referencing Delaware v. Van Arsdall which stated:
26
The correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a
reasonable doubt. Whether such an error is harmless in a
particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the
importance of the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.
106 S. Ct. 1431, 1438 (1986).
The Kentucky rule regarding harmless error reads:
No error in either the admission or the exclusion of evidence and
no error or defect in any ruling or order, or in anything done or
omitted by the court or by any of the parties, is ground for granting
a new trial or for setting aside a verdict or for vacating, modifying
or otherwise disturbing a judgment or order unless it appears to
the court that the denial of such relief would be inconsistent with
substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding that does not affect
the substantial rights of the parties.
In applying the facts in this case to the above standards, Sergeant Keene
saying Jacobs had been locked up did not affect the substantial rights of the
parties. The crucial issues in this case centered around whether the jury
believed Katy’s allegations that Jacobs perpetrated acts of sexual abuse on her.
Sergeant Keene’s reference did not carry any details about what Jacobs had
been locked up for including whether it was a felony, whether that resulted in a
conviction, or any other damaging and highly prejudicial information. It was
less prejudicial than Moore saying he and Jacobs had both served time and
Moore’s joke about incarceration when he said it took ten minutes to get in and
27
ten years to get out. It is noteworthy that Moore’s comments drew no
objection.
We have held that the admission of improper evidence is not enough to
warrant a mistrial in a case where said evidence was first admitted without
objection. In Parker v. Commonwealth, 291 S.W.3d 647, 658 (Ky. 2009), this
Court held that a comment regarding a witness’s fear of retribution was
admitted in error. However, the trial court in that case admonished the jury.
After discussing the narrow exceptions to the presumption that admonitions
are curative, we stated:
But this case does not fall within those exceptions because the
improper testimony was relatively brief in nature given the lengthy
trial. And defense counsel did not object when Wright first
mentioned fearing retribution and, in fact, raised that issue himself
during cross-examination. Also, although not mentioned by the
parties, the record reflects that at one point, [the witness] testified
without objection that he did not want to “turn against” Parker
because he feared for his safety. In short, we believe the trial
court’s admonition was a sufficient curative measure, rendering a
mistrial unnecessary.
Id. (emphasis added). Here, just as in Parker, a statement about Jacobs being
“locked up” was not objected to the first time it was mentioned—only later,
when Sergeant Keene brought it up during his testimony. Furthermore, when
Jacobs testified, the jury learned from him that he was a convicted felon, used
illegal controlled substances, and engaged in significant illegal drug consuming
behavior around the Moore and Chesser home.
In summary, the solitary reference by Sergeant Keene about Jacobs
being locked up was harmless error. The trial court did not act arbitrarily and
28
did not abuse its discretion when it denied the motion for a mistrial for which
there was no manifest necessity. The admonition given by the trial court was
clear and unequivocal. There is nothing in the record to indicate the jury could
not or did not follow the admonition.
We hold the trial court did not abuse its discretion when it overruled
Jacobs’s motion for a mistrial based on a claim he suffered undue prejudice
when Sergeant Keene said Jacobs had been locked up.
D. Prior Consistent Statements
Jacobs claims as his fourth allegation of error that he “suffered undue
prejudice when the Commonwealth repeatedly asked him to characterize Katy
as fabricating her story and then used that to ‘open the door’ to evidence the
trial court already ruled inadmissible.” Jacobs concedes the error was initially
unpreserved but argues it was later preserved by his objection when the
Commonwealth sought to put Melanie on the witness stand and play the
recording she made of her conversation with Katy in rebuttal. Jacobs seeks
review of these claims based on the objection that was made to the testimony
and recording, and a review under palpable error for objections that were not
made to the Commonwealth’s questions. After review of the record, we hold the
Commonwealth’s questions and the admission of the previously excluded
evidence did not amount to reversible error.
The issue revolves around three pieces of evidence the Commonwealth
sought to admit. The trial court ruled pretrial that a single torn up and
reassembled page from Katy’s diary, Melanie’s testimony about conversations
29
between she and Katy about Jacobs engaging in sex acts with Katy, and the
recording Melanie made of a conversation with Katy were excluded from
evidence. The trial court ruled that unless Jacobs raised a claim of fabrication,
the three items amounted to bolstering evidence. The trial court noted that the
items could become admissible under KRE 801A, which reads in relevant part:
(a) Prior statements of witnesses. A statement is not excluded by
the hearsay rule, even though the declarant is available as a
witness, if the declarant testifies at the trial or hearing… and
the statement is:
. . .
(2) Consistent with the declarant’s testimony and is
offered to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive
During Jacobs’s cross-examination of Katy, counsel asked her about a
statement she made to her pediatrician weeks after the last alleged act of
sexual abuse occurred. In response, Katy admitted that she had told her
doctor that she had not had sex. The Commonwealth sought admission of the
diary page, Melanie’s testimony, and the recording. The trial court allowed the
Commonwealth to admit evidence of Katy’s prior consistent statement, but
limited the Commonwealth to the admission of one of the three items. The
Commonwealth chose to admit the re-assembled diary page containing Katy’s
prior descriptions about the sexual acts that took place in the neighbor’s
garage between her and Jacobs after the Dickens Christmas Parade. The
descriptions in the diary entry aligned with Katy’s trial testimony.
30
When the Commonwealth rested its case-in-chief, the proof of sexual
crimes consisted primarily of Katy’s testimony about sexual acts between her
and Jacobs. Included in Katy’s testimony was the torn-up and reassembled
diary page. Caldwell testified about one love note. Katy, Chesser, and other
witnesses testified about Katy’s emotional breakdown when Jacobs brought
Brittany, his new girlfriend, to the Lake Avenue home. The remaining
witnesses for the Commonwealth testified primarily about background
information, dates, or the course of the police investigation.
During Sergeant Keene’s testimony, he verified one part of Katy’s account
of sexual intercourse in the van. Katy had taken Sergeant Keene and her
mother to the lumber yard location where she said Jacobs had sexual
intercourse with her in the van multiple times. Sergeant Keene was familiar
with the lumber yard, warehouses, and headquarters because he had patrolled
there for several years. From his patrol days in that area, Sergeant Keene said
the police often got early morning calls concerning criminal activity in this
area. The lumber yard was in a business district and few people were in the
area late at night or in the early morning hours.
However, the place where Katy took Sergeant Keene and her mother was
unknown to him. In all his years patrolling, Sergeant Keene had never been
there, and he was unaware it existed. The spot Katy took them was behind the
warehouses and had a thick row of trees on one side. Access to the location
was by a dirt road not easily seen from any of the main roads. With no houses
31
nearby and ordinarily few people around, it was a suitable location for illicit
activity. Sergeant Keene noted his surprise that the area existed.
From the perspective of Jacobs’s defense at the close of the
Commonwealth’s case, witnesses had confirmed on cross-examination that
Katy had a crush on him. Evidence from Katy’s closet (a shirt and hat
belonging to Jacobs that Katy stole from his bag of laundry without his
knowledge) were arguably proof of that crush. When Jacobs brought a new
girlfriend to the Moore and Chesser home, Katy had an emotional meltdown.
Katy conceded that was due to jealousy.
Jacobs chose to testify in his own defense and the following exchange
occurred during his cross-examination:
Commonwealth: Why would she say these things?
Jacobs: What she is accusing me of? I have no idea. I
did not—I am not a child molester. At all. And I
know that. God knows that, and that’s—as long
as God knows that, I am all right with that. You
can take—people can say whatever they want.
Commonwealth: So, she totally fabricated all of this?
Jacobs: Yes, ma’am. She sure did. I am not a child
molester. I never, ever, ever would I do this to a
kid. I promise you. Promise you.
Commonwealth: That entry into that diary, sir, was total
fabrication as well?
Jacobs: Well, a piece of paper will lay there and let you
write whatever you want on it, you know. Won’t
they?
Commonwealth: So, her testimony today was total, complete
fabrication?
Jacobs: Yeah, yeah it was. I don’t know. She—I know
[Katy’s] got mental problems. But I never
dreamed of her accusing me of something like
32
this. Never. I cared for them kids. I loved them
kids like they were my own. I been around kids
my whole life, and no—no kid has ever accused
me of anything like this. Never.
Commonwealth: And you—
Jacobs: I would kill somebody if I caught them hurting a
kid. I would. You wouldn’t have to worry about
no cops.
Commonwealth: So, someone who does this should be treated
harshly?
Jacobs: Yes. Yeah. They should be hung. And that’s
why I am mad for being accused about it. But
what can you do when a little girl at this age?
You know she’s got mental problems.
Commonwealth: Okay. So, what do you mean by that, sir? She
told us she has ADHD.
Jacobs: Every night her mom and dad would tell her to
take her crazy medicine. That’s why I felt sorry
for her.
No objections were made to the questions or answers. After Jacobs
testified, the defense closed its case and renewed its motions for directed
verdict. The Commonwealth then sought to put Melanie on the stand in
rebuttal to play the recording she had made. Jacobs’s counsel objected
and further said:
I realize I made a mistake in not objecting to [the
Commonwealth’s] questions. It’s all on me. She improperly
asked my client to comment on another witness’s
truthfulness. I believe there is caselaw on point that is not
permissible. I did miss that objection and I will admit that
and if it is part of an 11.42 later, I will own it.
The trial court overruled the objection and noted that during trial
was not the appropriate time to discuss matters related to a future
ineffective assistance of counsel claim. The trial court further found that
33
since Jacobs stated Katy totally fabricated everything, Melanie could
testify, and the recording could be played. The trial court accepted the
Commonwealth’s position that Melanie’s testimony and the recording
qualified as prior consistent statements admissible to rebut a claim of
recent fabrication.
Melanie testified that Katy talked about sex between her and
Jacobs that occurred in the old house in her bedroom. Melanie
remembered Katy telling her that Katy and Jacobs had sex three times in
the van. The recording of the conversation between Katy and Melanie
was then played. On the recording, Katy said she and Jacobs had a
three-year relationship, she had sex with Jacobs on multiple occasions,
she loved him, and she was going to marry him.
As noted above, the Commonwealth’s questions to Jacobs about
Katy’s testimony and the diary entry drew no objections and will be
reviewed under a palpable error standard. That standard has multiple
components and is set out as follows:
Under RCr 10.26, an unpreserved error may be reviewed on appeal
if the error is “palpable” and “affects the substantial rights of a
party.” Even then, relief is appropriate only “upon a determination
that manifest injustice has resulted from the error.” Id. An error
is “palpable,” only if it is clear or plain under current law. Brewer
v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Generally, a
palpable error “affects the substantial rights of a party” only if “it is
more likely than ordinary error to have affected the judgment.”
Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). We note
that an unpreserved error that is both palpable and prejudicial,
still does not justify relief unless the reviewing court further
determines that it has resulted in a manifest injustice; in other
words, unless the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be “shocking or
34
jurisprudentially intolerable.” Martin v. Commonwealth, 207
S.W.3d 1, 4 (Ky. 2006).
Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009).
“When an appellate court engages in a palpable error review, its focus is
on what happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin, 207
S.W.3d at 5.
Jacobs’s objection to allowing Melanie to testify and the recording to be
played will be reviewed under an abuse of discretion standard. “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” English, 993
S.W.2d at 945.
Here, the cross-examination questions at issue dealt with Jacobs’s
opinion as to Katy’s truthfulness. The questions dealt with what Katy said
happened between her and Jacobs and the diary entry. The Commonwealth’s
questions used the words “total,” “complete,” and “fabrication.” There is no
ambiguity in the questions or their meaning. Under long standing case
authority in this Commonwealth, it is error to ask a witness to comment on
another witness’s truthfulness. See Moss v. Commonwealth of Kentucky, 949
S.W.2d 579 (Ky. 1997); Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997);
Hall v. Commonwealth, 862 S.W.2d 321 (Ky. 1993); Hellstrom v.
Commonwealth, 825 S.W.2d 612 (Ky. 1992).
However, as noted above, since the error was not preserved, we must
determine whether it was palpable. We have said: “[e]rror can be found
35
[palpable] only if it is more likely than ordinary error to have affected the
judgment.” Ernst, 160 S.W.3d at 762. The questions at issue in this case were
not so far beyond ordinary error that they affected the judgment. The case did
not hinge on Jacobs’s opinion as to whether Katy fabricated her story. Katy’s
and Jacobs’s versions of events had been presented to the jury. Jacobs’s
testimony during direct examination included him denying that anything
sexual had happened between him and Katy. In answering the questions at
issue here, Jacobs’s passionate denials and assurances that he was not a child
molester may well have been strategic. The record is otherwise replete with
objections by Jacobs’s counsel to hearsay, form of the question, child sexual
abuse accommodation syndrome, and other issues, but there is no objection
here. That silence may be something other than an omission. “It is not the
function of this Court to usurp or second guess counsel’s trial strategy.”
Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007).
After review, we hold neither the Commonwealth asking Jacobs whether
Katy fabricated the charges against him nor his answers in the affirmative
amounted to palpable error. The error did not “so seriously affect[] the
fairness, integrity, or public reputation of the proceeding as to be ‘shocking or
jurisprudentially intolerable.’ Miller, 283 S.W.3d at 695 (quoting Martin, 207
S.W.3d at 4). The questions were short, limited and only a small part of the
overall questioning. The questions were not shocking or disturbing—and it was
already obvious to the jury that if it believed Jacobs’s version of events, it had
to disbelieve Katy’s. While, as noted, our case law makes it clear that it is error
36
for a witness to be asked to comment on the truthfulness of another witness’s
testimony, this error could have been cured at trial by a simple objection. Had
the defense objected to the first instance of the Commonwealth asking Jacobs
whether Katy had fabricated the allegations, the trial court could have put a
stop to that line of questioning before Jacobs even provided an answer.
However, since the defense did not do so, the jury heard his answers; we also
note that the defense did not object after Jacobs had provided an answer and
seek an admonition. Under these circumstances, we hold there was no
palpable error.
Jacobs also claims the trial court erred when it permitted Melanie to
testify and permitted the Commonwealth to play the audio recording she made
of a conversation with Katy. After Jacobs’s testimony, the trial court accepted
the Commonwealth’s argument that Jacobs opened the door to prior consistent
statements by claiming Katy’s testimony was fabrication. The trial court ruled
that under KRE 801A, Melanie’s testimony and the recording were now
admissible as prior consistent statements. Jacobs objected, and counsel
admitted she made a mistake in not objecting to the Commonwealth’s
questions to Jacobs about Katy fabricating everything.
As we have acknowledged, “Kentucky Rules of Evidence (KRE) 801A(a)(2)
allows an out-of-court statement by the witness, otherwise excluded by the
hearsay rule, to be admissible as long as it is ‘offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence
37
or motive.’” Murray v. Commonwealth, 399 S.W.3d 398, 403 (Ky. 2013) (quoting
KRE 801A(a)(2)).
The admission of Melanie’s testimony and the recording must be viewed
in the context of the entire trial. The pretrial ruling by the trial court excluded
the three items of evidence: the torn-up and reassembled diary page, Melanie’s
testimony, and the recording Melanie made. As such, the trial court ruled all
three items inadmissible unless Jacobs later made them so. The record is clear
that he did by alleging a recent fabrication by Katy.
During cross examination of Katy, defense counsel asked if she told her
pediatrician that she had never had sex. Katy answered in the affirmative.
The question arose directly from records provided in discovery. In response,
the Commonwealth sought to admit all three items of evidence that contained
prior consistent statements. The trial court balanced the single question
Jacobs asked against the Commonwealth’s sought-after response and
permitted a single piece of evidence to be admitted. The Commonwealth
selected the torn-up and reassembled diary entry.
The Commonwealth argued it was allowed to prove its case and
vigorously objected to being limited to one prior consistent statement. “And we
have consistently held that the Commonwealth may ‘prove its case by
competent evidence of its own choosing . . . .” Hall v. Commonwealth, 468
S.W.3d 814, 825 (Ky. 2015) (quoting Pollini v. Commonwealth, 172 S.W.3d 418,
424 (Ky. 2005). However, the trial court maintains control over the admission
and flow of evidence. The trial court is the gatekeeper of evidence and its
38
decision limiting the Commonwealth to the single choice of the three items was
a measured response to the single question asked by the defense.
Furthermore, the Commonwealth is not the Appellant in the case before us—
and the trial court’s limitation on the evidence at that point in the proceeding is
not before us.
Furthermore, the trial court’s later decision to permit Melanie to testify
and the Commonwealth to play the recording was also a reasoned response to
Jacobs’s answers—in which he responded multiple times that Katy’s version of
events was a fabrication. While, as noted, our case law indicates Jacobs
should not have been asked to characterize another witness’s testimony as
being untruthful, he was not required or compelled to respond or agree that
everything Katy said was a lie. Jacobs was not forced to say the diary entry
was a complete fabrication. It was entirely possible for Jacobs to maintain his
innocence without saying or agreeing that Katy was a liar. However, Jacobs
did not do that. It was Jacobs’s answers, not the Commonwealth’s questions
(to which his counsel did not object), that made the remaining two pieces of
originally excluded evidence admissible.
Jacobs took the stand and assumed the risks associated with cross
examination. What our predecessor Court said decades ago applies with equal
force today:
When a witness takes the stand in his own behalf, he assumes a
dual capacity, (1) as an accused, and (2) as a witness. . . . In such
capacity, he was subject to all the obligations and liabilities of any
other witness, including that of being impeached. He was likewise
entitled to all the rights and immunities of any other witness.
39
Keene v. Commonwealth, 210 S.W.2d 926, 929 (Ky. 1948), overruled on other
grounds by Colbert v. Commonwealth, 306 S.W.2d 825 (Ky. 1957).
In summary, we hold there was no manifest injustice in the
Commonwealth’s improper questions and we further hold the trial court did
not err when it allowed Melanie to testify and the Commonwealth to play the
recording she made in response to Jacobs’s answers that Katy’s testimony and
her diary entry were fabrications. We hold the trial court committed no
reversible error as to Jacobs’s claims in this argument.
E. Directed Verdict
Jacobs claims the trial court erred when it denied his motions for
directed verdict. He moved for directed verdict as to all charges at the close of
the Commonwealth’s case and renewed that motion at the close of all evidence.
We begin the analysis with the legal standards.
The legal standard for a trial court in deciding whether to grant a
directed verdict motion is clear: “[i]f under the evidence as a whole it would not
be clearly unreasonable for a jury to find the defendant guilty, he is not entitled
to a directed verdict of acquittal.” Trowel v. Commonwealth, 550 S.W.2d 530,
533 (Ky. 1977). Furthermore,
The trial court must draw all fair and reasonable inferences from
the evidence in favor of the party opposing the motion, and a
directed verdict should not be given unless the evidence is
insufficient to sustain a conviction. The evidence presented must
be accepted as true. The credibility and the weight to be given the
testimony are questions for the jury exclusively.
Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). The standard for
appellate review is equally clear: “[o]n appellate review, the test of a directed
40
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.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Jacobs contends that the Commonwealth failed to present sufficient
evidence to overcome Jacobs’s presumption of innocence as to any of the
charges. Apart from his general argument that “[t]he Commonwealth failed to
present any sufficient evidence that would prove beyond a reasonable doubt
that [Jacobs] engaged in sexual contact with [Katy],” he specifically argues
there was not sufficient evidence that Katy was under the age of twelve at the
time of any of the alleged incidents of alleged sexual contact occurred. A review
of the facts is necessary for this analysis.
The testimony adduced at trial provides a rough timeline. Katy testified
she knew the sexual abuse began when she was eleven because she “didn’t
know right from wrong at that time.” The family house burned in January
2016 when Katy was twelve. Katy and other witnesses used that significant
event as a time reference. Katy’s birthdate was April 6, 2003.
Katy testified regarding three occasions of abuse she said happened
before the house burned. The first event involved kissing and Jacobs fondling
her buttocks the evening her dad walked Melanie home. The second was
sexual intercourse on the freezer in the bathroom. The third event took place
in the neighbor’s garage after the Dickens Christmas Parade and included
mutual oral sex.
41
Katy testified that she was in eighth grade and had just turned fifteen
(the trial was in April after her birthday). Jacobs asserts that based on school
years, Katy must have been twelve years old when the three events listed above
occurred. However, there was no testimony as to such elicited at trial. This is
merely conjecture and may or may not be accurate. For example, if Katy had
failed seventh grade, it could both be true that Katy was eleven when she was
in sixth grade and that she was fifteen and in eighth grade at the time of trial.
Chesser testified the small freezer was only in the bathroom at the old
Lake Avenue house and never in the new house. The Commonwealth
introduced a picture of the bathroom showing the freezer. Chesser also
testified about times she was in the hospital with severe seizures and periods of
time when she and Moore were separated with marital problems. Katy tied
some of her age claims to when her mother was gone or in the hospital.
Chesser’s dates were at odds with Katy’s testimony about her age.
The Commonwealth asserts in its brief that the events Katy described
happening in the old house occurred in the fall of 2014, not 2015, which meant
Katy was eleven. The trial court gave the jury choices in the instructions
including under age twelve or in the alternative under age fourteen or under
age sixteen based on the charge. The factual argument over Katy’s age boils
down to Katy saying she was eleven and other evidence pointing to her being
twelve.
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The jury returned guilty verdicts consistent with Katy’s testimony that
she was eleven. A jury is permitted to make that finding and we are unwilling
to substitute our decision for theirs. We note,
“‘it is the responsibility of the jury—not the court—to decide what
conclusions should be drawn from evidence admitted at trial. A
reviewing court may set aside the jury's verdict on the ground of
insufficient evidence only if no rational trier of fact could have
agreed with the jury.’”
Jenkins v. Commonwealth, 496 S.W.3d 435, 445 (Ky. 2016) (quoting Coleman v.
Johnson, 566 U.S. 650, 651 (2012) (quoting Cavazos v. Smith, 565 U.S. 1, 2
(2011))).
“Our courts have long held that a jury is free to believe the testimony of
one witness over the testimony of others.” Minter v. Commonwealth, 415
S.W.3d 614, 618 (Ky. 2013). “The testimony of a single witness is enough to
support a conviction.” Id. at 618 (citing Gerlaugh v. Commonwealth, 156
S.W.3d 747, 758 (Ky. 2005)). Further, “[t]he testimony of even a single witness
is sufficient to support a finding of guilt, even when other witnesses testified to
the contrary if, after consideration of all of the evidence, the finder of fact
assigns greater weight to that evidence.” Commonwealth v. Suttles, 80 S.W.3d
424, 426 (Ky. 2002).
We conclude the trial court did not err in denying the motions for
directed verdict based on Katy’s age. The trial court noted Katy’s testimony
that she was eleven when some of the acts occurred. The trial court must
assume for purposes of directed verdict motions that her testimony was true.
As stated above, the jury would decide what weight to give that testimony and
43
Katy’s credibility. When the sexual abuse occurred and what Katy’s age was at
the time were issues left to the jury to resolve. It would not be unreasonable in
light of the evidence as a whole for the jury to find guilt based on how old Katy
said she was when she was abused.
Apart from his argument that the Commonwealth did not present
sufficient evidence proving that Katy was under the age of twelve at the time
the sexual abuse occurred, Jacobs also argues that it did not present sufficient
evidence that Jacobs had engaged in sexual contact with Katy. He points out
that Melanie testified she did not believe Katy at first, that Moore went to talk
to Jacobs about the allegations in case he had not abused his daughter, and
the County Attorney told Chesser there was nothing he could do when she
spoke to him about the case. However, whether other witnesses who testified
believed Katy’s allegations of sexual abuse is without consequence.
As we have stated in our analysis of a similar issue:
Appellant gives us plenty of reasons to disbelieve Tonya, but the
substance of her testimony describing Appellant’s role in the crime
is not so extraordinarily implausible or inherently impossible that
it is manifestly without probative value or patently unworthy of
belief; it could have happened as she testified. Consequently, we
conclude that the credibility and weight to be given to Tonya’s
testimony remained within the province of the jury, and therefore,
was necessarily included in the body of evidence to be considered
when deciding whether a directed verdict was proper.
Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017). Just as the Appellant
in Ross, Jacobs gives us “plenty of reasons to disbelieve” Katy. However, what
he does not show is that her testimony describing the sexual acts she alleged
Jacobs perpetrated upon her was “so extraordinarily implausible or inherently
44
impossible that it is manifestly without probative value or patently unworthy of
belief.” Id.
For the reasons discussed above regarding Katy’s age, we also hold that
the trial court did not err in denying Jacobs’s motions for directed verdict on
the basis of conflicting testimony as to Katy’s credibility and the facts
surrounding the crimes.
The above discussion does not resolve the remaining issue of whether a
directed verdict for the offense of tampering with a witness should have been
granted. Jacobs claims there was no evidence, even in the light most favorable
to the Commonwealth, that Jacobs called Sergeant Keene to attempt to get him
to avoid appearing or testifying at the trial.
KRS 524.050 reads, in pertinent part:
(1) A person is guilty of tampering with a witness when, knowing
that a person is or may be called as a witness in an official
proceeding, he:
(a) Induces or attempts to induce the witness to absent
himself or otherwise avoid appearing or testifying at
the official proceeding with intent to influence the
outcome thereby; or
(b) Knowingly makes any false statement or practices
any fraud or deceit with intent to affect the
testimony of the witness.
We note that KRS 524.050(1) does not require the “official proceeding” in which
the person “may be called as a witness” be a trial. At the time of Jacobs’s
phone calls, Sergeant Keene was still investigating the case involving Katy’s
allegations. Jacobs had neither been charged with a crime regarding Katy nor
had his case been presented to the grand jury. At the time of the phone calls,
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there was no trial on the immediate horizon. It is not unreasonable to
conclude that Jacobs, as a convicted felon with multiple prior offenses, was
aware that grand jury proceedings had to occur before he could be indicted. It
is then not unreasonable to infer Jacobs was attempting to affect Sergeant
Keene’s testimony at whatever proceeding may occur—including proceedings in
front of a potential grand jury.
Although Jacobs never directly asked Sergeant Keene not to testify or
threatened him regarding any potential testimony, the trial court described the
calls as an irrational rant or inferred threat. Viewing the evidence in the light
most favorable to the Commonwealth, Jacobs’s inferred threat can be viewed as
aimed at getting Sergeant Keene to cease his investigation. If successful, the
threat could have resulted in Sergeant Keene stopping his investigation, and
not charging Jacobs, or testifying in front of the grand jury. That conclusion is
sufficient for the trial court to have denied the motion for directed verdict. As
to reasonable inferences, we previously said:
An inference is the act performed by the jury of inferring or
reaching a conclusion from facts or premises in a logical manner
so as to reach a conclusion. A reasonable inference is one in
accordance with reason or sound thinking and within the bounds
of common sense without regard to extremes or excess. It is a
process of reasoning by which a proposition is deduced as a logical
consequence from other facts already proven.
Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999).
It is common sense to infer that Jacobs had a motive when he made the
calls. The jury could decide if the rant was something other than an attempt to
stop the investigation. The jury would decide the weight and credibility to
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assign the testimony of Sergeant Keene and Jacobs and the weight to give the
recordings. The trial court had sufficient evidence before it to deny this motion
for a directed verdict. We hold it did not abuse its discretion in denying
Jacobs’s motions for directed verdict.
F. Double Jeopardy
Four of Jacobs’s convictions resulted from events during a single
“episode” of sexual contact in a neighbor’s garage following the Dickens
Christmas Parade. Jacobs claims that the multiple convictions for the same
act violated the prohibition against double jeopardy. Jacobs asserts the issue
was preserved during arguments for directed verdict or if not, it is reviewable
under palpable error pursuant to RCr 10.26. Regardless, we are bound to
review a double jeopardy claim even if it is improperly preserved. Early v.
Commonwealth, 470 S.W.3d 729 (Ky. 2015).
The Double Jeopardy Clause of the Fifth Amendment of the United
States Constitution mandates that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V; see
also Ky. Const. § 13. We have held that the Fifth Amendment and Section 13
of the Kentucky Constitution are “identical in . . . their prohibition against
double jeopardy.” Jordan v. Commonwealth, 703 S.W.2d 870, 872 (Ky. 1985).
The sex acts at issue happened while the family lived at the old house on
Lake Avenue. Katy testified she was eleven years old at the time. Katy’s
description of what happened lasted approximately two minutes and minced
few words. Katy said the acts began after Jacobs, Katy, and her little sister
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returned from the Dickens Christmas Parade. Jacobs told Katy to leave the
family garage where her father was working on something and join him a dozen
steps away at the neighbor’s garage. Once inside the neighbor’s garage, Jacobs
began kissing Katy.
Jacobs unbuckled his pants and made Katy perform oral sex on him,
then Jacobs pulled down her pants and performed oral sex on her. Katy was
certain no sexual intercourse happened in the garage. When asked if anything
else happened, Katy said Jacobs touched her vaginal area and made her touch
his genital area. The activity stopped when Chesser yelled for Katy to take her
nightly medicine.
Based on Katy’s testimony, the trial court fashioned multiple instructions
for various crimes. Related to these events in the neighbor’s garage, the jury
ultimately returned guilty verdicts for two counts of first-degree sexual abuse,
one count of first-degree sodomy, and one count of first-degree unlawful
transaction with a minor. The instructions are set out as follows:
INSTRUCTION NO. 6(A)
FIRST-DEGREE SEXUAL ABUSE (COMPLAINING WITNESS
UNDER AGE OF 12)
You will find the Defendant, Thomas Jacobs, guilty of
First-Degree Sexual Abuse under this Instruction if,
and only if, you believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about December,
2014, following the Dickens Parade, and
before the finding of the Indictment
herein, Thomas Jacobs subjected [Katy] to
sexual contact at Margaret King’s garage
by touching her vaginal area;
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AND
B. That at the time of such contact, [Katy]
was less than 12 years of age.
INSTRUCTION NO. 7 (A)
FIRST-DEGREE SEXUAL ABUSE (COMPLAINING WITNESS
UNDER AGE OF 12)
You will find the Defendant, Thomas Jacobs, guilty of
First-Degree Sexual Abuse under this Instruction, if,
and only if, you believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about December,
2014 following the Dickens Parade, and
before the finding of the Indictment
herein, Thomas Jacobs subjected [Katy] to
sexual contact at Margaret King’s garage
by having her touch his penis;
AND
B. That at the time of such contact, [Katy]
was less than 12 years of age.
INSTRUCTION NO. 8(A)
FIRST-DEGREE SODOMY
You will find the Defendant guilty of First Degree
Sodomy under this Instruction if, only if, you believe
from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about December
2014, following the Dickens Parade, and
before the finding of the Indictment
herein, Thomas Jacobs engaged in deviate
sexual intercourse with [Katy] at Margaret
King’s garage by placing his mouth on her
vaginal area;
AND
B. That at the time of such occurrence, [Katy]
was less than 12 years of age.
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INSTRUCTION NO. 9(A)
FIRST-DEGREE UNLAWFUL TRANSACTION WITH A MINOR
You will find the Defendant guilty of First Degree
Unlawful Transaction with a Minor under this
Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about December,
2014, following the Dickens Parade, and
before the finding of the Indictment
herein, Thomas Jacobs knowingly
induced, assisted or caused Katy to place
her mouth on his penis at Margaret King’s
garage:
AND
B. That Katy was less than 16 years of age;
AND
C. That Thomas Jacobs knew Katy was less
than 16 years of age.
Jacobs claims these instructions violated double jeopardy and are
cumulative punishment for the same conduct. He asserts the touching
of his mouth on Katy’s vaginal area met the elements for both sexual
abuse and sodomy, as sexual touching (for the sexual abuse charge) was
an inevitable part of deviate sexual intercourse (for the sodomy charge).
Jacobs further argues that Katy placing her mouth on his penis met the
elements for both sexual abuse and unlawful transaction with a minor.
Jacobs claims these acts were a single course of conduct and therefore
merit one conviction. We disagree.
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We previously said, “[g]enerally, the prohibition against double jeopardy
shields a defendant from a second prosecution for the same offense after either
conviction or acquittal, but it also prohibits multiple punishments for the same
offense.” Jordan, 703 S.W.2d at 872 (citing Ohio v. Johnson, 467 U.S. 493
(1984)). However, cumulative punishment is permitted by the double jeopardy
clause “[w]here the same conduct violates two statutory provisions, the first
step in the double jeopardy analysis is to determine whether the legislature . . .
intended that each violation be a separate offense.” Garrett v. United States,
105 S. Ct. 2407, 2411 (1985). “With respect to cumulative sentences imposed
in a single trial, the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the legislature
intended.” Missouri v. Hunter, 103 S. Ct. 673, 678 (1983).
In Blockburger v. United States, the United States Supreme Court held
double jeopardy does not occur when a person is charged with two crimes
arising from the same course of conduct, so long as each statute “requires
proof of an additional fact which the other does not.” 284 U.S. 299, 304 (1932).
While Kentucky courts departed from the Blockburger rule for a time, this
Court stated in Commonwealth v. Burge: “we return to the Blockburger
analysis. We are to determine whether the act or transaction complained of
constitutes a violation of two distinct statutes and, if it does, if each statute
requires proof of a fact the other does not. Put differently, is one offense
included within another?” 947 S.W.2d 805, 811 (Ky. 1996) (internal citations
omitted).
51
We begin with a review of relevant statutory language regarding the
crimes for which the jury was instructed. As to sexual abuse, KRS 510.110
reads, “(1) A person is guilty of sexual abuse in the first degree when: . . . (b) He
or she subjects another person to sexual contact who is incapable of consent
because he or she: . . . 2. Is less than twelve (12) years old.” “Sexual contact” is
defined in 510.010(7) as “any touching of the sexual or other intimate parts of
a person done for the purpose of gratifying the sexual desire of either party.”
As to sodomy, KRS 510.070 reads: “(1) A person is guilty of sodomy in the first
degree when: . . . (b) He engages in deviate sexual intercourse with another
person who is incapable of consent because he: . . . 2. Is less than twelve (12)
years old.” “Deviate sexual intercourse” is defined in KRS 510.010(1) as “any
act of sexual gratification involving the sex organs of one person and the mouth
or anus of another . . . .” Finally, KRS 530.064 reads: “(1) A person is guilty of
unlawful transaction with a minor in the first degree when he or she knowingly
induces, assists, or causes a minor to engage in: (a) Illegal sexual activity . . . .”
Reviewing Katy’s testimony, it is clear she described two separate acts of
oral sex: Jacobs placing his mouth on Katy’s vagina and Jacobs making Katy
place her mouth on his penis. These crimes were listed separately in the jury
instructions. The sodomy instruction referenced Jacobs placing his mouth on
Katy’s vagina (which meets the definition of deviate sexual intercourse required
for a sodomy conviction) and the unlawful transaction with a minor instruction
referenced Jacobs inducing, assisting, or causing Katy to place her mouth on
his penis. Katy testified that she was eleven when these sexual acts occurred
52
and the necessary age requirement for both first-degree sodomy and firstdegree unlawful transaction with a minor were met if the jury found that she
was truthful as to her age.
Sodomy and unlawful transaction with a minor are separate crimes
requiring proof of different elements. Sodomy requires proof of deviate sexual
intercourse, while unlawful transaction with a minor requires proof the
defendant induced, assisted, or caused the victim to engage in illegal sexual
activity.
Jacobs argues that even if the instructions as to sodomy and unlawful
transaction with a minor did not violate his right to be free from double
jeopardy, his convictions for sexual abuse amounted to double jeopardy
violations. According to Jacobs, if the jury found that he had sodomized Katy
by placing his mouth on her vaginal area, it had to also find that he committed
sexual abuse by touching her vaginal area; and, likewise, as the other sexual
abuse charge—if the jury found he had induced Katy to place her mouth on his
penis for the unlawful transaction with a minor charge, it had to find that he
had committed sexual abuse by having Katy touch his penis. We have
addressed these arguments in the past, and disagree with Jacobs that the
charges against him denied him his right to be free from double jeopardy.
We look first at Katy’s testimony concerning the acts of abuse. When
Katy testified about Jacobs touching her vaginal area (the basis of the sexual
abuse charge), that touching was different than the touching that occurred
when Jacobs placed his mouth on Katy’s vaginal area (the basis of the sodomy
53
charge). It is also clear that when Jacobs made Katy touch his penis, that was
separate from when Jacobs made Katy place her mouth on his penis. Notably,
after Katy described the two acts of oral sex during her testimony, she was
asked if sexual intercourse occurred on that occasion in the garage and she
said it did not. Katy was then asked if anything else happened and she said
yes: that Jacobs touched her genital area and made her touch his. It is not
unreasonable to conclude that Katy described four separate acts of sexual
gratification even though they were not separated by any measurable amount
of time. The four separate acts Katy described, the legislature prohibited.
Jacobs asserts that he may not be punished for multiple acts
arising from a single occurrence based on the language of KRS 505.020
which states in relevant part:
(1) When a single course of conduct of a defendant may establish
the commission of more than one (1) offense, he may be prosecuted
for each such offense. He may not, however, be convicted of more
than one (1) offense when:
. . .
(c) The offense is designed to prohibit a continuing course of
conduct and the defendant's course of conduct was uninterrupted
by legal process, unless the law expressly provides that specific
periods of such conduct constitute separate offenses.
Jacobs relies on Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993). In
Grubb, the Commonwealth was limited from carving out multiple offenses from
a single impulse and limited to only the most serious charge. The single
impulse test has not been adopted by this court, and Grubb relies on Ingram v.
Commonwealth, 801 S.W.2d 321, (Ky. 1990) which was expressly overruled by
Burge, 947 S.W.2d 805. Therefore, Jacobs’s reliance on Grubb is misplaced.
54
As to sodomy and sexual abuse, we previously stated:
Appellant argues that first-degree sexual abuse is a lesser-included
offense of first-degree sodomy in the sense that the “sexual
contact” necessary to prove sexual abuse is a necessary
component of sodomy. Nevertheless, here the separate charge of
sexual abuse is based not on incidental contact, but on a separate
act of sexual gratification. The fact that the two sexual acts
occurred either simultaneously or nearly so is irrelevant.
Hampton v. Commonwealth, 666 S.W.2d 737, 739 (Ky. 1984). The
same is true herein. Katy testified to separate touching accounting
for the sexual abuse charge than that of the sodomy charge.
As to unlawful transaction with a minor and sexual abuse,
we previously said:
Each requires an element of proof that the other does not. The
unlawful-transaction statute requires an element of proof that is
not found in the sexual-abuse statute: proof that the defendant
induced, assisted, or caused the minor to engage in the act. The
sexual-abuse statute, on the other hand, requires an element of
proof not found in the unlawful-transaction statute: proof that the
defendant is twenty-one years or older and that the victim is less
than sixteen years old. Applying the Blockburger test, Yates was
not subjected to double jeopardy by being convicted of both crimes.
Yates v. Commonwealth, 539 S.W.3d 654, 665–66 (Ky. 2018). While Yates
dealt with different subsections of the sexual abuse statute, the crimes herein
still required proof of different elements. Here, the sexual abuse charge did not
require proof that Jacobs was any particular age, it did require proof that Katy
was under the age of twelve—an element not required by the unlawful
transaction with a minor statute.
In this case, the acts described by Katy violated statutes containing
different elements as noted above. The four acts Katy described were different
55
acts of sexual gratification, not merely incidental contacts. Katy’s testimony
included her age, Jacobs’s inducement to have sex with him, oral sex by Katy
on Jacobs, oral sex by Jacobs on Katy, Jacobs sexually touching Katy, and
Katy sexually touching Jacobs. All of these are separate elements in the
applicable statutes making legislative intent clear and thereby permitting
multiple punishments.
In summary, the trial court correctly provided the jury with multiple jury
instructions based on Katy’s description of four separate acts of sexual
gratification that happened in the neighbor’s garage. We hold there was no
error in providing the jury with the four choices given in the instructions. We
further hold Jacobs was not deprived of his right to be free from double
jeopardy in the convictions for the four crimes. The trial court’s rulings were
grounded in established precedent and supported by sound legal principles.
G. Cumulative Error
Finally, Jacobs seeks reversal of his conviction under “cumulative error,
the doctrine under which multiple errors, although harmless individually, may
be deemed reversible if their cumulative effect is to render the trial
fundamentally unfair. We have found cumulative error only where the
individual errors were themselves substantial, bordering, at least, on the
prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
Jacobs acknowledges this issue is unpreserved but seeks review. We will
review under a palpable error standard. RCr 10.26 reads, “[a] palpable error
which affects the substantial rights of a party may be considered by the court
56
on motion for a new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the
error.” “Palpable error affects the substantial rights of the party and results in
manifest injustice. Furthermore, an appellant claiming palpable error must
show that the error was more likely than ordinary error to have affected the
jury.” Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014). The
“required showing is probability of a different result or error so fundamental as
to threaten a defendant’s entitlement to due process of law.” Martin, 207
S.W.3d at 3.
We have found no single error sufficiently prejudicial as to merit reversal
and we further find the combination of alleged errors do not create a manifest
injustice. As this Court has held, “[w]hat it really boils down to is that if upon
a consideration of the whole case this court does not believe there is a
substantial possibility that the result would have been any different, the
irregularity will be held nonprejudicial.” Yates, 539 S.W.3d at 666 (quoting
Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)). Upon
review, we do not believe the result would have been different without any of
the alleged irregularities sought by Jacobs to be identified as cumulative error.
We find no manifest injustice in the trial court’s rulings.
Outcome: For the foregoing reasons, we affirm Jacobs’s convictions and
corresponding sentences.
Plaintiff's Experts:
Defendant's Experts:
Comments: