Paul T. Elam Jr v. Commonwealth of Kentucky

RENDERED: OCTOBER 20, 2016
TO BE PUBLISHED

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2015-SC-000700-MR
AND
2015-SC-000701-MR

PAUL T. ELAM JR APPELLANT

ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V. HONORABLE JOHN L. ATKINS, JUDGE
NO. 13-CR-00680, 14-CR-00438

COMMONWEALTH. OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS .

AFFIRMING

Appellant, Paul T. Elam, appeals from a judgment of the Christian

Circuit Court convicting him of fifteen counts of first degree sodomy, thirteen

counts of first degree sexual abuse, and two counts of witness tampering. As a

result of these convictions, Appellant was sentenced to a total of seventy years

in prison.

Appellant contends that the trial court erred by overruling his motion to

sever Count No. 33 of the indictment from the remaining charges and by

granting the Commonwealth's motion to consolidate for a single trial the sexual

offenses and the witness tampering charges. He also argues that his due

process rights were violated because the indictment contained numerous
 indistinguishable, identically-phrased charges which, in turn, resulted in a

violation of his constitutional right to a unanimous verdict pursuant to the

standards as set forth in Johnson v. Commonwealth, 405 S.W.3d 439 (Ky.

2013).

Upon review of the issues raised by Appellant, we affirm the judgment of

the Christian Circuit Court.

I. FACTUAL AND PROCEDURAL BACKGROUND
Kristen Elam is Appellant's ex-wife and the mother of victims Brenda and

Mary.' Appellant is Mary's biological father and during his marriage to Kristen,

he was Brenda's step-father. After his divorCe from Kristen, Appellant

maintained a paternal relationship with Brenda. Kristen had custody of Mary

and Brenda during the relevant time period, but both girls visited regularly

with Appellant and his current wife, Meagan.

In November 2013, seven-year old Mary told her mother, Kristen, and her

step-mother, Meagan, that Appellant had fondled her vagina by putting his

hand under her clothes. That disclosure prompted Kristen and Meagan to ask

eleven-year-old Brenda if anything improper had occurred between her and

Appellant. Brenda disclosed that Appellant began engaging in sexual acts with

her when she was seven years old and that the abuse continued until the

present time. Brenda said that Appellant forced her to stimulate his genitalia,

Pseudonyms are used to protect the privacy of the juveniles and victims of
alleged crimes.

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 orally and manually, and that he had imposed oral sex on her and fondled her

breasts.

These allegations led to Appellant's indictment on thirty-two counts of

first degree sodomy committed against Brenda (Counts 1-32); one count of first

degree sexual abuse committed against Mary (Count 33); and thirty-two counts

of first degree sexual abuse against Brenda (Counts 34-65). The sixty-four

charges pertaining to Brenda allegedly occurred between May 2011 and

November 2, 2013. The sexual abuse of Mary allegedly occurred between

October 31, 2013 and November 2, 2013.

While in jail awaiting trial, Appellant sent a letter to Meagan asking her

to try to prevent Mary and Brenda from testifying against him. As a result of

the letter, Appellant was indicted on two counts of witness tampering. 2 Over

Appellant's objection, the trial court granted the Commonwealth's motion to

consolidate the witness tampering charges with the sex offenses for purposes of

a trial. Appellant also sought to have Count 33, the only charge relating to

Mary, severed from the other sixty-four counts involving Brenda. The trial

court denied this motion, and all charges were tried together.

Before the submission of the case to the jury, thirty-seven counts of the

indictment were dismissed. The case went to the jury on fifteen counts of first

2 KRS 524.050(1) provides: "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."

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degree sodomy, all involving Brenda; thirteen counts of first degree sexual

abuse, twelve relating to Brenda and one relating to Mary; and two counts of

witness tampering. The jury convicted Appellant of all counts. These appeals

followed. 3

II. CONSOLIDATION AND SEVERANCE ISSUES
Appellant's first argument regarding the consolidation of charges

consists of two parts: 1) he claims that the trial court erred by denying his

motion to sever the trial of the single count involving Mary from the trial of the

remaining sixty-four sexual offenses involving Brenda; and 2) he contends that

the trial court erred by granting the Commonwealth's motion to consolidate for

trial all of the sexual offenses and the two witness tampering charges.

We begin our analysis of these issues with a brief restatement of the

applicable rules of joinder and severance, and a review of how those rules

function together. RCr 6.18 defines the circumstances in which separate acts

of criminal conduct can be properly joined together in a single indictment or

information. It allows for joinder of offenses in the same indictment only when

the offenses are 1) "of the same or similar character" or 2) "are based on the

same acts or transactions connected together or constituting parts of a

common scheme or plan.

3For reasons that remain unclear, perhaps because there are two separate
indictments consolidated into a single trial and a single judgment, Appellant filed two
notices of appeal; two appellate files were opened, and two essentially identical sets of
briefs were filed in each case. When there is but one judgment relating to multiple
indictments, as here, it is unnecessary to file two notices of appeal.

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 RCr 9.12 defines the circumstances in which charges contained in two or

more different indictments may be consolidated for a single trial. RCr 9.12

allows for the consolidation of separate indictments for a single trial only if the

individual charges properly "could have been joined in a single indictment."

RCr 9.12 indirectly incorporates the standard of RCr 6.18.

RCr 8.31, which at the time of Appellant's trial was codified as RCr 9.16,

sets no parameters for the proper joinder or consolidation of different charges;

it does the opposite. RCr 8.31 (formerly RCr 9.16) mandates the separation (or

severance) of charges otherwise properly joined under RCr 6.18 or indictments

properly consolidated under RCr 9.12. It states that "[i]f it appears that a

defendant or the Commonwealth is or will be prejudiced by a joinder of offenses

. in an indictment . . . or by joinder for trial, the court shall order separate

trials of counts . . . or provide whatever other relief justice requires." In other

words, a joinder or consolidation of offenses for a single trial cannot be justified

by the provisions of RCr 8.31. RCr 8.31 sets the standard for the severance or

separation of charges otherwise properly joined or consolidated.

As we stated in Cherry v. Commonwealth, "Even if the requirements of

Criminal Rule 6.18 are met, the trial court should nevertheless order the

offenses be tried separately if joinder would be prejudicial to either the

defendant or the Commonwealth." 458 S.W.3d 787, 793 (Ky. 2015). "Under

RCr 9.16 [now RCr 8.31] a defendant must prove that joinder would be so

prejudicial as to be unfair or unnecessarily or unreasonably hurtful." Ratliff v.

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 Commonwealth, 194 S.W.3d 258, 264 (Ky. 2006) (citations and internal quotes

omitted).

Whether the prejudicial effect of an otherwise proper joinder of offenses

meets the "unfair or unnecessarily or unreasonably hurtful" threshold is a

matter that rests with the sound discretion of the trial judge. "A trial judge has

broad discretion in ruling on an RCr 9.16 [now RCr 8.31] motion, and that

determination will not be overturned on appeal unless an abuse of discretion is

shown." Id. (citations omitted). We "will not overturn a trial court's joinder

determination absent a showing of actual prejudice and a clear abuse of

discretion. We must be clearly convinced that prejudice occurred and that the

likelihood of prejudice was so clearly demonstrated to the trial judge that the

refusal to grant a severance was an abuse of discretion." Murray v.

Commonwealth, 399 S.W.3d 398, 405 (Ky. 2013) (citations omitted).

As further explained below, under the facts and circumstances present

here, we are persuaded that the trial court did not abuse its discretion by

denying Appellant's motion to sever Count 33 from the other sexual

misconduct charges or by joining the tampering indictment with the sexual

misconduct indictment for purposes of trial. We first consider the

consolidation of the witness tampering charges with the sexual misconduct

charges.

A. Consolidating the indictment for sexual offenses with the indictment
for tampering with witnesses for trial was proper.

Appellant's charges of tampering with a witness stem from the letter he

sent to his wife asking her to attempt to dissuade the children from testifying.

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 Those charges arose after he had been indicted for the sexual offenses so they

necessarily are set forth in a separate indictment. As noted above, RCr 9.12

sets the standard for consolidating the charges of separate indictments for a

single trial. Two or more indictments may be tried together "if the offenses

. . . could have been joined in a single indictment, information, complaint or

uniform citation." The standard for joining different criminal acts into a single

indictment is established by RCr 6.18. Different criminal acts may be joined as

separate counts in the same indictment if the offenses are "of the same or

similar character or are based on the same acts or transactions connected

together or constituting parts of a common scheme or plan." Consequently,

crimes charged in different indictments may be consolidated for trial if they are

"of the same or similar character or are based on the same acts or transactions

connected together or constituting parts of a common scheme or plan."

At least in the factual context of this case, the conduct alleged as

Appellant's crime of unlawfully tampering with witnesses is not "of the same or

similar character" as the conduct underlying the sodomy and sexual abuse

charges. 4 The only avenue for the proper consolidation of offenses in this case

is if they are "based on the same acts or transactions connected together or

constituting parts of a common scheme or plan."

4 We do not dismiss the possibility that in other factual circumstances actions

that constitute tampering with a witness might be "of the same or similar character"
as sexual acts constituting other criminal offenses.

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 Construing this language, we said in Peacher v. Commonwealth, 391

S.W.3d 821, 837 (Ky. 2013), that joinder of different offenses requires

a sufficient nexus between or among them to justify a single trial.
. . . [T]he required nexus [arises] from a 'logical' relationship
between them, some indication that they arose one from the other
or otherwise in the course of a single act or transaction, or that
they both arose as parts of a common scheme or plan.

Here, we see a direct nexus linking the underlying sexual offenses and

the tampering charges. The charges of tampering with witnesses plainly arose

from Appellant's alleged attempt to persuade Mary and Brenda not to testify

against him on the sexual charges, providing an extraordinarily direct logical

connection that links the tampering with witness charges to the sexual offenses

against both Mary and Brenda. RCr 6.18 allows for the joinder of these

charges in these circumstances in a single indictment as "transactions

connected together or constituting parts of a common scheme or plan." The

only remaining question is whether this otherwise proper consolidation of

offenses was impermissibly prejudicial under RCr 8.31 (formerly RCr 9.16),

thus mandating separate trials.

"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) (citations omitted). This

test is easily satisfied in this case because the circumstances of Appellant's

alleged sexual crimes would be admissible in a separate trial for tampering

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with the witness under the "inextricably intertwined" prong of KRE 404(b)(2). 5

Likews,Aplant'gdeformpwithnesouldb

admissible in a separate trial of the sexual offenses because it indicates

consciousness of guilt. Tamme v. Commonwealth, 973 S.W.2d 13, 29-30 (Ky.

1998) (citations omitted) ("Any 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.").

Frequently, for all of the advantages of consolidating charges cited in

Peacher,6 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.

Accordingly, we agree that the trial court did not abuse its direction by

5 KRE 404(b) evidence of "other crimes, wrongs, or acts," otherwise inadmissible
under the provisions of KRE 404, may nevertheless be admissible when they are "so
inextricably intertwined with other evidence essential to the case that separation of the
two (2) could not be accomplished without serious adverse effect on the offering party."
KRE 404(b)(2).
6 "The advantages of joint trials, whether of multiple charges or multiple
defendants, are obvious. Trials are costly and burdensome to courts, parties,
witnesses, and victims, so the savings from resolving a matter in a single trial rather
than two or more separate trials are significant. This seems especially so when the
evidence for separate counts will overlap to a considerable extent. It seems wasteful to
require the Commonwealth to put on the same proof multiple times, to require
witnesses to attend and give the same testimony at different trials, and to require
separate juries to consider substantially identical evidence. Joinder also helps assure
that defendants are tried for their alleged offenses in a timely manner. A joint trial,
moreover, by allowing a single jury to pass on all the charges and to hear all the
evidence, minimizes the risk of inconsistent verdicts. Given these many advantages,
RCr 6.18 provides for the liberal joinder of offenses." Peacher v. Commonwealth, 391
S.W.3d 821, 836-37 (Ky. 2013).

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granting the Commonwealth's motion to consolidate the two indictments for a

single trial.

B. The trial court did not abuse its discretion when it refused to sever the
trial of Count 33 from the trial of the other counts of the sexual abuse
and sodomy indictment.

Of the 65 individual counts charged in the first indictment, all but one of

the alleged crimes was against Brenda. Only Count 33 alleged that Appellant

committed a crime against Mary. Appellant filed a pretrial motion to sever the

trial of Count 33 from the remaining counts. The trial court denied the motion.

Argument that the joinder of Count 33 with the remaining counts violated RCr

6.18, and the trial court's failure to separate the trial of Count 33 from the

other charges violated RCr 9.16 (now RCr 8.31).

In support of this argument, Appellant contends that in a trial of the 64

crimes against Brenda, evidence of the single crime against Mary would be

inadmissible under KRE 404(b). The joinder of the offenses, he contends, was

unduly prejudicial as it allowed the jury to know that two daughters accused

him of sexual abuse, not just one.

We are unpersuaded that the trial court abused its discretion when it

permitted the charge involving Mary to be tried together with those involving

her step-sister, Brenda. As noted above, two crimes are properly tried together

"if the offenses are of the same or similar character or . . . connected together

or constituting parts of a common scheme or plan." RCr 6.18. The crime

against Mary was clearly "of the same or similar character" as the crimes

involving Brenda. They are logically connected in the sense that the disclosure

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of the former led directly to the discovery of the latter. All of the crimes alleged

in the indictment charged sexual activities by a father/ step-father against his

daughter/ step-daughter, and both instances began when the victim was about

seven-years-old. The multitude of alleged crimes can also be considered to be

connected together as "parts of a common scheme or plan," specifically

Appellant's continuing scheme to obtain sexual gratification by engaging in

sexual acts with easily accessible and vulnerable victims: little girls who

depended upon him and regularly stayed at his home.

Appellant's letter to Meagan that forms the basis of both charges of

tampering with a witness relates to both of the victims. Parsing it out in

separate trials, one for each of the witnesses affected, would be impractical, but

more importantly, under the factual circumstances here, it is unnecessary.

Appellant relies upon the holding from Roark cited above, and the similar

analysis in Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993), to

support his claim that KRE 404(b) would not support the reciprocal admission

of the sexual acts against both girls in separate trials. We are satisfied that

KRE 404(b) would not stand as a barrier to the admission of the crime against

Mary in the trial of the crimes against Brenda and vice versa.

The 404(b) rule is subject to several exceptions identified in the rule

itself7 and as authorized by our common law holdings. The same

7 KRE 404 (b) states: "Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible: (1) If offered for some
other purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident; or (2) If so inextricably
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circumstances that justified the joinder of the charges in the first place

(appellant's scheme or plan of using vulnerable, easily accessible young girls

within his household for sexual gratification, and the logical connection

between the two sets of charges), also support the mutual admission of the

charges as an exception to KRE 404(b)(2). In fact, Rearick holds that a child

victim in a sexual abuse case could testify that he had seen his father, the

defendant, sodomizing his younger brother because that evidence indicated a

common scheme or plan. 858 S.W.2d at 188. Upon application of this same

analysis, we reach the conclusion that separate trials would not have spared

Appellant the detrimental effect he cites as error. Thus, we cannot conclude

that he was unduly prejudiced by the trial court's refusal to sever the charges

for separate trials.

In summary, the trial court did not abuse its discretion in denying

Appellant's motion to sever the charges involving Mary from the charges

involving Brenda or in granting the Commonwealth's motion to join for a single

trial the indictment alleging witness tampering with the indictment alleging

sexual crimes against Brenda and Mary.

III. UNANIMOUS VERDICT AND DUPLICITOUS INDICTMENT ISSUES

Appellant's second argument also has two components. First, he

complains that the indictment was duplicitous in that all thirty-two sodomy

intertwined with other evidence essential to the case that separation of the two (2)
could not be accomplished without serious adverse effect on the offering party."

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counts contained therein are identical, with absolutely no distinctions between

them, as are the thirty-two counts of sexual abuse allegedly committed against

Brenda. Second, he contends that the jury instructions reiterated the error

and thus violated his right to a unanimous verdict, as set out in Johnson v.

Commonwealth, 405 S.W.3d 439 (Ky. 2013). Appellant concedes that neither

argument is preserved but requests palpable error review. We first consider

the unanimous verdict issue.

A. The jury instructions did not violate Appellant's right to a unanimous
verdict.
Citing Johnson, Appellant contends that his right to a unanimous verdict

was violated due to "flawed jury instructions." "Section 7 of the Kentucky

Constitution requires a unanimous verdict . . . ." Wells v. Commonwealth, 561

S.W.2d 85, 87 (Ky. 1978). A violation of this provision may occur in several

ways; however it may be stated as a general principle that a violation occurs

when a verdict is returned based upon jury instructions and verdict forms that

provide no assurance that all of the jurors based their finding of guilt on the

same event. Johnson, 405 S.W.3d at 449; Ruiz v. Commonwealth, 471 S.W.3d

675, 678 (Ky. 2015).

Appellant fails to fully develop his argument with an explanation of how

the jury instructions in this case failed to differentiate among the multiple

counts of sexual crimes. Contrary to Appellant's assertion, an examination of

the instructions discloses that the instructions did, indeed, carefully

differentiate among the multiple charges by identifying singularly distinctive

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 circumstances associated with each of the individual events underlying each

count presented in the instructions. The jury's verdicts leave no doubt that

each juror agreed upon each specific charge in the instructions, and that the

same charge was not presented twice. Appellant's unanimous verdict

argument is based upon a flawed premise, and contrary to his arguments, the

trial court's instructions to the jury carefully followed the unanimous verdict

mandates set forth in Johnson, Ruiz, and other cases addressing the issue. 8

B. Appellant waived any objections to deficiencies in the form of the
indictment by failing to present a timely objection.

Appellant contends that the indictment handed down in this case was

duplicitous because it combined multiple separate acts of sexual misconduct

into a single description. A duplicitous indictment is "the joining in a single

count of two or more distinct and separate offenses." Ruiz, 471 S.W.3d at 680

(citing Johnson, 405 S.W.3d at 453) (quoting United States v. Starks, 515 F.2d

8 It is worth noting that with the passage of 2016 Ky. Acts ch. 83, § 1, effective
April 9, 2016, now codified as KRS 501.100, the legislature, as suggested by this
Court on a number of occasions, see e.g., Ruiz, 471 S.W.3d at 679, addressed a
persistent problem in prosecuting multiple sexual offenses committed against a young
child victim (and other vulnerable victims), when evidence differentiating one illegal act
from another is difficult to obtain, by permitting the multiple crimes to be charged as a
single "continuing course of conduct" crime. However, under KRS 501.100(5), "[i]f a
.

person is convicted of an offense against a vulnerable victim in a continuing course of
conduct, that person may not also be convicted of charges based on the individual
unlawful acts that were part of the continuing course of conduct." The penalty,
probation and parole eligibility, and other consequences of an offense charged as a
continuing course of conduct "shall be the same as for the offense when charged
based on an individual act." KRS 501.100(6). Thus, while KRS 501.100 presents an
important option for prosecutors when charging multiple sexual offenses against a
single victim, implementing the option created by the legislature precludes the
imposition of multiple sentences that would otherwise be available when multiple
individual counts are charged.

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 112, 116 (3d Cir. 1975)). "In other words, a duplicitous count includes in a

single count what must be charged in multiple counts." Id. (citing Johnson,

405 S.W.3d at 453).

Here all of the thirty-two sodomy charges relating to Brenda were worded

identically, as were each of the thirty-two sexual abuse charges. As we said in

Ruiz, 471 S.W.3d at 680, we do not approve of indistinguishable counts in an

indictment, but seldom will we need to determine such counts are duplicitous

or otherwise in violation of the provisions of RCr 6.10 and RCr 6.18 requiring a

"separate count for each offense." Appellant never raised the issue in the trial

court. A defendant is deemed to have "waived any defects in his indictment by

not bringing those defects to the attention of the trial judge." Thomas v.

Commonwealth, 931 S.W.2d 446, 450 (Ky. 1996); see RCr 8.18(1) ("[T]he

following shall be raised before trial: . . . b) a motion alleging a defect in the

indictment or information . . . .").

Moreover, our rules provide a remedy for the defendant who is unable to

prepare a defense because he cannot differentiate among a multitude of

indistinguishable charges. RCr 6.22 provides for a bill of particulars.

Appellant never requested a bill of particulars. "If the defendant is not

sufficiently informed by the indictment [of the precise nature of each charge

lodged against him] an adequate remedy is at his disposal [under RCr 6.22],

and if he chooses not to avail himself of it he will be considered as having

waived the defect." Strong v. Commonwealth, 507 S.W.2d 691, 694 (Ky. 1974).

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 Accordingly, no manifest injustice occurred as a result of the duplicitous

indictment. Appellant is not entitled to relief under this argument.

IV.CONCLUSION

For the foregoing reasons, the judgment of the Christian Circuit Court is

affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Stephanie Dawn Ritchie
Fry 86 Ritchie

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jason Bradley Moore
Assistant Attorney General

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