David Alan Jenkins v. Commonwealth of Kentucky

RENDERED: AUGUST 25, 2016
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DAVID ALAN JENKINS APPELLANT

ON APPEAL FROM OHIO CIRCUIT COURT
V. HONORABLE RONNIE C. DORTCH, JUDGE
NO. 06-CR-00121

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

David Jenkins appeals as a matter of right from a Judgment of the Ohio

Circuit Court convicting him of rape in the first degree (Kentucky Revised

Statute (KRS) 510.040) and sodomy in the first degree (KRS 510.070). The

Commonwealth accused Jenkins of committing those crimes against his

seventeen-year-old step-granddaughter. The jury so found and recommended

sentences of twenty years' imprisonment for both crimes, the sentences to be

served consecutively. The trial court sentenced Jenkins in accord with the

jury's recommendation to a total maximum term of forty years in prison. On

appeal, Jenkins contends that the evidence adduced at trial was not sufficient

to support the jury's verdicts and that, accordingly, he is entitled to a dismissal

of the charges. He also contends that, even if the evidence was not so lacking

as to require a directed verdict, a number of trial court errors rendered the
proceedings unfair and entitle him to a new trial. In particular, Jenkins

contends that the trial court erred (1) by admitting evidence of Jenkins's prior

bad acts; (2) by admitting into evidence statements Jenkins made during a

post-polygraph interview; (3) by disallowing the introduction of additional

statements from that interview; (4) by refusing Jenkins's request for a jury

instruction on the offense of sexual misconduct; and (5) by instructing the jury

on a single count of sodomy, when the evidence reflected two such acts. .

Agreeing with Jenkins on this last point, that the sodomy instruction does not

comport with our recent cases construing the Kentucky Constitution's

unanimous verdict requirement, we reverse the sodomy conviction and the

sodomy portion of Jenkins's sentence and remand for additional proceedings.

Finding none of his other contentions sufficient to undermine the verdict, we

affirm Jenkins's rape conviction and corresponding twenty-year sentence for

that crime.

RELEVANT FACTS

The record indicates that in early 2006, the alleged victim in this case,

"Jane," 1 was residing at the Genesis Home in Mayfield, Graves County,

Kentucky. At that time the Mayfield Genesis Home provided group-home

services to girls. According to the Commonwealth, Jane had been sent there in

conjunction with a juvenile prosecution. Jane revealed to one of the home's

counselors that in September 2005, while Jane was seventeen, she had stayed

1 Consistent with our practice, "Jane" is a pseudonym.

2
for a couple of days with her grandmother at her grandmother's home outside

Fordsville, Kentucky, in Ohio County. Jane told the counselor that during her

visit, her grandmother's husband, Jane's step-grandfather, David Jenkins, had

forced her to engage in sexual acts, including intercourse. The counselor

notified state authorities, and before long the case was assigned jointly to

investigators from the Cabinet for Families and Children and the Ohio County

post of the Kentucky State Police.

Those investigators, Cabinet worker Kerry White Kellman and then State

Police Detective Bryan Whittaker, 2 arranged for a State Police detective

stationed in Graves County, Detective Michelle Kent, to interview Jane at the

Genesis Home. Detective Kent recorded the interview and forwarded both the

recording and a transcript of it to the Ohio County investigators. In about May

2006, Kellman and Whittaker together interviewed Jenkins and his wife, Susan

Jenkins, at their home. In July 2006, Jenkins agreed to take a polygraph

exam. Immediately following that exam, Sergeant Whittaker interviewed him

again. In August 2006, an Ohio County Grand Jury indicted Jenkins on

charges of first-degree rape ("engag[ing] in sexual intercourse with a minor by

forcible compulsion") and first-degree sodomy ("engage[ing] in deviate sexual

intercourse with a minor by forcible compulsion"). 3 The matter finally came to

2 By the time of trial, Detective Whittaker had become Sergeant Whittaker.
3 Notwithstanding the grand jury's phrasing, Jane's minority was not an

element of the crimes with which Jenkins was charged.

3
trial before the Ohio Circuit Court in March of 2014, by which time Jane was

twenty-five. 4

At trial, the investigators testified concerning their roles leading up to the

indictment. Although no mention was made of Jenkins's polygraph exam, over

Jenkins's objection the Commonwealth was permitted to introduce during

Sergeant Whittaker's testimony two brief excerpts, "snippets" as the

Commonwealth referred to them, from the audio portion of Jenkins's post-

polygraph interview. The Commonwealth argued that in these audio snippets

Jenkins admitted having fantasized about Jane during her September 2005

visit, and admitted the possibility that under the influence of certain

prescription medicines he could have engaged in sexual activity with Jane, but

have been left with no recollection of it. (We address below Jenkins's

objections to the post-polygraph evidence.) Otherwise, the Commonwealth's

case rested entirely on the testimony of Jane.

Jane testified that she was born in May 1988 to parents who never

married. Her father, she implied, had essentially abandoned her, but in her

early years her paternal grandmother, Susan, had been very involved in her life

and for some time had had regular, court-ordered visitation. According to Jane

(and confirmed by Susan), Susan married Jenkins in about 1995, when Jane

4Although the record is by no means satisfactory on this point, it appears that
over the intervening seven-and-a-half or so years Jenkins's trial was scheduled and
continued nearly a dozen times, the majority of those continuances necessitated by
the unavailability (for reasons undisclosed) of the complaining witness. The unusually
long pre-trial delay has not been made an issue on appeal.

4
was about seven. Jane testified that at first she got along well with Jenkins.

She was not asked explicitly when or why that relationship changed, but her

testimony clearly implied that at some point Jenkins had begun sexually

abusing her. She testified that she had reported the abuse both to the police

and to school officials, but apparently nothing came of those allegations beyond

the rupture of her relationship with her grandmother. Whether at her

grandmother's insistence, or her mother's, or both (the testimony was not

clear), Jane testified that in September 2005, when the incidents giving rise to

this case occurred, she had not seen her grandmother or Jenkins for about

four years.

According to Jane, on about September 15, 2005, she was visiting a

friend in Pembroke, Kentucky when she began having significant pain in her

mouth from what proved to be an abscessed tooth. Jane's mother, with whom

Jane was living during that period, had recently moved to a new residence and

did not yet have phone service, so Jane called her grandmother for help. Her

grandmother and Jenkins came to Pembroke from Fordsville and took Jane to

the hospital in Owensboro where a doctor examined her and prescribed an

antibiotic. By then, apparently, it was fairly late in the day, but the three

found an open pharmacy, had the prescription filled, and then proceeded to

Susan and Jenkins's house. Jane remembered the three of them watching

television for a little while that night, but believed that before long they had all

gone to bed, a mattress having been provided for her in the living room. Jane

testified that that night was uneventful.

5
 She had little recollection of what they did during most of the next day.

That evening, however, according to Jane, her grandmother had fallen asleep

on the living room couch, and Jane had been allowed to use Susan and

Jenkins's computer. She had played computer games and had written what

she characterized as a "perverted" email to her boyfriend.

Jane testified that while she was using the computer, Jenkins was in

and out of the computer room several times. While she was writing the letter

to her boyfriend, Jenkins, she claimed, read the letter over her shoulder and

made a remark to the effect, "You're the best because I made you the best." He

also, at about that point, massaged her shoulders. , Not long after that, Jane

testified, Jenkins asked if he could take a picture of her. That request had not

seemed inappropriate to her, and she complied. She became alarmed,

however, when, shortly after the photo, Jenkins asked her if she "liked to be

ate out," a reference, Jane knew, to oral sex. Jane testified that she did her

best to ignore that remark and that soon thereafter Jenkins woke Susan from

the couch and they all made preparations to go to bed. As they were parting

for the night, however, Jenkins frightened Jane again by saying that he would

"see you later."

Since Jane's testimony concerning what took place when Jenkins did

indeed come back to see her early the next morning is the crux of the

Commonwealth's case, we include the pertinent portions of that testimony

verbatim, as follows:

CW: [following a brief pause while the witness, who had become
tearful, composed herself] OK. Are you ok now to go forward.
6
Jane: Yeah.

CW: We'd talked a little bit about back in September 2005. You'd
gone to your grandmother's house, spent the night. Second day
you were on the computer, talked to your step-grandfather, the
defendant in this case, and he had said something to you about
coming back. Did he come back?

Jane: Yes.

CW OK. Do you know about what time that occurred?

Jane: I want to say about 5:00, maybe.

CW: And where were you?

Jane: I was asleep on the air-mattress on the living room floor.

CW: Do you recall what you were wearing?

Jane: Pajamas. I don't remember specifically what kind.

CW: OK. And when did you first see the defendant?

Jane: Umm. He tried to wake me up. And I tried to act like I was
asleep.

CW: How was he trying to wake you up?

Jane: He tapped me on my leg.

CW: OK. You said you tried to act like you were still asleep. What
happened next?

Jane: It never worked. I'd tried it a lot, so it never worked.

CW: So what happened?

Jane: Umm. When he tried to wake me up, I ended up just
waking up, and, um, he performed oral sex on me. And then [he]
asked for it in return. Umm, and after that, he, I don't know the
correct word in the courtroom to say. Um. He "had sex" with me, I
guess.

CW: Alright. Let's kind of back up just a little bit. You said that
once he woke you up. What specifically did he do at that time?
7
Jane: That's when he performed oral sex.

CW: OK. Now, let's kind of . . . What happened to your pajamas?

Jane: He just took my pants off.

CW: OK. He did . . . He did that?

Jane: Urn huh.

CW: And then what did he . . . We've got to be very specific.
You're going to have to tell this jury exactly what happened. OK? I
know that's kind of difficult to do. What—he took your pants off—
what happened next?

Jane: He went down on me.

CW: Is that something you wanted him to do?

Jane: No. I didn't want him to do that. [I] never wanted him to do
anything to me.

CW: OK. Did you tell him that?

Jane: I told him that several times.

CW: What did you say, specifically?

Jane: I just told him "no."

CW: Did you resist him?

Jane: I couldn't really fight him. I felt like, . . . I guess going
through it at seventeen, I thought I could handle it, that I was
older and that, you know, that I was a little bad butt and I could
fight back. Until I was put in that situation and I felt like I
couldn't fight. I felt like I was helpless, and I was a little kid all
over again.

CW: Were you scared?

Jane: Yeah.

CW: So, he takes your pants off?

Jane: Um huh.

8
CW: Step-by-step, what did he do?

Jane: After he took my pants off, he performed oral sex.

CW: When you say, "oral sex," what did he do?

Jane: He put his mouth on my vagina.

CW: Was that with your consent?

Jane: No.

CW: What happened next?

Jane: Umm. He asked me to go down on him.

CW: And did you do that?

Jane: Yes.

CW: OK. Why?

Jane: Umm. I don't know. I didn't want to, and I didn't feel
comfortable to. It was just kind of, . . . It was always what
happened. It was just something that I guess I was used to, 'cause
that's always what happened.

CW: We can only talk about this time. What exactly . . . Where
did he . . . What happened? You say, "oral sex." What do you
mean? We have to be very graphic.

Jane: He put his penis in my mouth.

CW: OK. And did you want to do that?

Jane: No.

CW: Did you tell him that you didn't want to do that?

Jane: Yes.

CW: So, after that . . . How long did that last?

Jane: Not very long.

CW: How did it make you feel?
9
 Jane: Like I was . . . I felt disgusted.

CW: What happened then?

Jane: Umm. He . . .proceeded to put his penis in my vagina.

CW: I understand. You're being graphic. I I. . . That's exactly what
we have to do. So, where were you when that happened?

Jane: Laying on the bed still.

CW: And how'd that make you feel?

Jane: I felt the same way. I felt disgusted. I didn't even want to
be there. I didn't want to do that. I just wanted my grandma to
wake up, or somebody. I just wanted somebody to walk in, and
somebody just to catch it. And, never . . . It just never happened
that way.

CW: How long did that last?

Jane: Not very long. The alarm clock ended up going off, and he
went back in the bedroom. And I remember Susan asking, "What
are you doing up already?" I don't remember what his response
was. But I remember just going back, and them driving me to my
court.

The prosecutor then asked Jane how she had come to report the

incident, and he wound up his direct examination of her by asking,

CW: Are you telling this jury the truth?

Jane: Yes.

CW: Did he rape you?

Jane: Yes.

CW: Did he sodomize you?

Jane: Yes.

CW: Who did that?

10
 Jane: Dave Jenkins.

CW: No further questions.

Defense counsel spent the first twenty minutes or so of his cross-

examination trying to confront Jane with inconsistent statements she

purportedly made to several people both before and after the alleged incident.

He then questioned her as follows:

Def: When he [Jenkins] came out to the living room, I guess, and
woke you up, did he ever say anything to you?

Jane: He never really said much during that time, no. He just
kind of rolled me over and pretty much, I mean, just took my pants
off.

Def: Did you ever say anything to him, to stop . . .? Did you ever
tell him to stop?

Jane: I tried to block him several times. And I told him "no."

Def: Did you, uh . . . Now of course, this had been carried over
from the day before. Is that correct?

Jane: No. Nothing happened the first night.

Def: Well, you mentioned that he was coming in the bedroom and
making comments to you—in the computer room?

Jane: Right. That was the night before, but he didn't do nothing
physically to me other than rub my shoulders and make
comments.

Def: Well, did you say anything to your grandmother?

Jane: No. She was asleep during all that time.

Def: Did she wake up at any point?

Jane: She woke up and went to bed.

Def: Did you say anything to her before she went to bed?

11
Jane: No.

Def: Is there any reason why you wouldn't tell her about that?

Jane: Umm. I mean, I just figured he was . . . I mean, no, not
really. I didn't have a reason to tell her or a reason not to tell her.

Def: OK. Now, did you consider David's comments inappropriate?

Jane: Umm. I really didn't pay 'ern no attention. I could care less
what he had to say, because I was still on the computer doing what
I had to do on the computer.

Def: Well, did you like it that he rubbed your shoulders?

Jane: I mean, he wasn't touching me sexually, so .

Def: But you didn't feel good about it either?

Jane: It didn't bother me.

Def: Did he threaten you at all at any time?

Jane: No. He never threatened me.

Def: Did he hit you or hold you down?

Jane: Not that I recall. He never hit me. No.

Def: Did he ever keep you from getting up or walking away?

Jane: Not during when I was seventeen, no.

Def: OK. Did he ever cover your mouth to keep you from
screaming out?

Jane: No.

Def: You said this was a double wide trailer?

Jane: Um huh.

Def: The wall's pretty thin?

Jane: I don't know; I didn't build it.

12
 Def: You could have yelled out? You could have yelled out for
your grandmother?

Jane: I probably could have. Yeah.

' Def: Now, you also said he had you perform oral sex on him?

Jane: Because that's what he wanted. He asked me for it.

Def: So you did it?

Jane: Yes.

Def: He didn't make you do it?

Jane: He asked me for it, and, no, I mean .. .

Def: He didn't make you do it?

Jane: No. I put myself back to being a kid again. So, no, he didn't
make me do it. It was just something that always happened, .. .
so . . .

Def: Alright. Did you ever kick or punch David?

Jane: No.

Def: Did you ever try to hit him?

Jane: No.

After a few more questions meant to cast doubt on Jane's credibility, the cross-

examination came to a close.

In pertinent part, the prosecutor's brief redirect-examination was as

follows:

CW: Just a couple of questions. [Jane], when he was raping you,
was that something you wanted to happen?

Jane: No.

CW: Did you consent to it?

13
 Jane: No.

CW: Did you tell him to stop?

Jane: I told him, "no."

CW: Did he listen to you?

Jane: No.

CW: Did he just continue?

Jane: Yes.

At the close of the Commonwealth's proof and then again at the close of

the defense proof, Jenkins moved for a directed verdict. He argued that the

Commonwealth had failed to prove that either the alleged intercourse or the

alleged sodomy had been forcibly compelled. The Commonwealth countered by

recalling Jane's testimony to the effect that she was afraid of Jenkins, had told

him "no," and had tried to block him. The trial court agreed with the

Commonwealth that Jane's testimony allowed the jury to find that Jane had

been forcibly compelled to engage in sex with Jenkins and so denied the

defense motion. Jenkins, who testified at trial and denied having had any

sexual contact with Jane, now contends that the facts the trial court

apparently relied upon in denying his directed verdict motion do not add up to

"forcible compulsion" as that term is statutorily defined for the purposes of

KRS Chapter 510, the sexual offense chapter. We begin our analysis with that

contention.

14
 ANALYSIS

I. Jenkins Was Not Entitled to a Directed Verdict or to the Dismissal of
Either Charge.

As Jenkins correctly notes, the United States Supreme Court has held

that the Due Process Clause of the Fourteenth Amendment "protects a

defendant in a criminal case against conviction 'except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he

is charged."' Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting In re

Winship, 397 U.S. 358, 364 (1970)). The Supreme Court has also made clear,

however, that Jackson did not alter the jury's fundamental role as finder of fact

in criminal cases. In the context of direct appeals, the Court has explained

that

`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.'

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (quoting Cavazos v. Smith,

565 U.S. 1, 132 S. Ct. 2, 4 (2011)). "Under Jackson," in other words,

evidence is sufficient to support a conviction if, 'after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of faCt could have found the essential elements of the
crime beyond a reasonable doubt.'

Coleman, 132 S. Ct. at 2064 (quoting Jackson, 443 U.S. at 319). See also

Commonwealth v. Benham, 816 S.W.2d 186-87 (Ky. 1991) ("On appellate

review, the test of a directed verdict is, if under the evidence as a whole, it

15
would be clearly unreasonable for a jury to find guilt, only then the defendant

is entitled to a directed verdict of acquittal.").

In pertinent part, the elements of first-degree rape are set forth in KRS

510.040(1)(a) as follows:

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

(a) He engages in sexual intercourse with another person by
forcible compulsion. 5

Jenkins does not dispute that the evidence was sufficient to create a jury

question as to whether he engaged in sexual intercourse with Jane. He

contends, however, that the Commonwealth failed to offer evidence of

substance that he did so by "forcible compulsion."

KRS 510.010(2) defines 6 "forcible compulsion" as

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

Jenkins asserts that the Commonwealth failed to produce sufficient

evidence that the alleged sex acts resulted from either "physical force" or "the

5 KRS 510.070 outlaws sodomy in similar terms: "(1) A person is guilty of

sodomy in the first degree when: (a) He engages in deviate sexual intercourse with
another person by forcible compulsion." In pertinent part, "deviate sexual intercourse"
is defined as "any act of sexual gratification involving the sex organs of one person and
the mouth or anus another." KRS 510.010(1). Because the forcible compulsion
element is common to both first-degree rape and first-degree sodomy, we limit our
discussion of the directed verdict issue to the alleged rape, with the understanding
that our discussion applies as well to Jenkins's claim that the sodomy charge should
also have been dismissed.
6 The quoted statutory provisions, which are the current versions, were also in

effect in September 2005 when the offenses are alleged to have occurred.

16
threat of physical force . . . , which place[d Jane] in fear of immediate death [or]

physical injury." We are convinced, however, that there was sufficient evidence

of physical force to raise a jury question.?

As set out above, Jane testified that at the outset of the encounter

Jenkins forcibly rolled her over, removed her pajama pants, and then

physically pushed aside her several attempts to block him from sodomizing

her. Jenkins's acts were not, as he maintains, actions merely incidental to sex.

A reasonable jury could have believed them acts of physical force compelling

sex despite the other person's unmistakable non-consent. They were not

7 Jenkins devotes much of his discussion of this issue to the statute's other
prong, the "threat of physical force" prong, and argues that while Jane testified that
she was afraid and overwhelmed by bad memories, she did not testify to the sort of
fear, the "fear of immediate death or physical injury," that the statute requires. He
refers us to two of our recent cases, Yates v. Commonwealth, 430 S.W.3d 883 (Ky.
2014), and Stowers v. Commonwealth, 2014 WL 702180 (Ky. Feb. 20, 2014), as
illustrating both the sort of threat that does not amount to forcible compulsion under
KRS 510.010(2) (Yates: defendant threatened to reveal to the fourteen-year-old victim's
mother the victim's relationship with her boyfriend) and the sort of circumstances
necessary to permit an inference of a sufficient threat (Stowers: thirteen-year-old
victim suddenly confronted by mother's boyfriend climbing into her bed). See also
Miller v. Commonwealth, 77 S.W.3d 566 (Ky. 2002) (noting that rape defendant's
statement to alleged victim that if she told anyone about the sexual activity both
participants would get in trouble was not the sort of threat that would sustain a
finding of "forcible compulsion"); David P. Bryden, Redefining Rape, 3 Buff. Crim. L.
Rev. 317, 358 (2000) (noting that courts routinely assume that "[lull -len a stranger
demands sex, . . . there is at least a tacit threat of force"); Newcomb v. Commonwealth,
410 S.W.3d 63 (Ky. 2013) (implicit threat of harm when casual friend appeared
unexpectedly in victim's home and aggressively initiated sexual encounter). Jenkins
insists that the vague fears and psychological unease about which Jane testified make
this case more like Yates than Stowers and are not sufficient to permit a finding of
forcible compulsion under the statute's "threat" prong. The question is an interesting
one, to be sure, cf. State v. Meyers, 799 N.W.2d 132 (Iowa 2011) (considering, in a case
also involving a seventeen year-old victim whose alleged attacker had abused her
several years previously, whether the "force" element of a sex-abuse statute could be
satisfied by psychological overpowering alone), but since we are convinced that there
was sufficient evidence under the statute's other prong—physical force—we need not
address it.

17
"violent" acts, perhaps, at least not violent in the sense of clearly threatening

physical harm, but "forcible compulsion" does not require violence or duress or

resistance by the victim. Gibbs v. Commonwealth, 208 S.W.3d 848, 856 (Ky.

2006) (discussing statutory amendments in 1988 and 1996 eliminating any

requirement that the victim resist her attacker and holding that, in that case,

the defendant's "act of taking [the victim's] hand and placing it on his penis"

satisfied the physical force element, at least for the purpose of a directed

verdict motion). See also Gordon v. Commonwealth, 214 S.W.3d 921 (Ky. App.

2006) (holding that testimony to the effect that the defendant pushed and held

apart the twelve-year-old victim's legs in the course of sodomizing her satisfied,

for directed verdict purposes, the "forcible compulsion" requirement).

Jane further testified that she continued to express her unwillingness

throughout the encounter, but that Jenkins ignored her protests and subjected

her to additional acts of sodomy and intercourse. Jane's testimony did not

make clear whether she continued physically to try to block Jenkins's actions,

but even if she did not, the additional acts all occurred in a brief period of time

and so, one could reasonably infer, were just as compelled as the initial

sodomy by the "continuum of force" 8 that Jenkins put in motion at the outset

of the episode. Clearly, a reasonable juror who believed Jane's testimony to be

credible could have concluded that Jenkins engaged in sexual intercourse with

8 Van Dyke v. Commonwealth, 581 S.W.2d 563, 564 (Ky. 1979) (holding that
separate acts of rape and sodomy constituted, separate offenses, notwithstanding the
fact that they occurred "in a brief period of time with the same victim and in a
continuum of force").

18
her by forcible compulsion. The trial court did not err, therefore, by denying

Jenkins's motion for a directed verdict. Benham, 816 S.W.2d at 186

(reiterating that the denial of a directed verdict motion will be upheld on appeal

unless "under the evidence as a whole, it would be clearly unreasonable for a

jury to find guilt"); Coleman, 132 S. Ct. at 2064 ("Under Jacicson . . . the

minimum amount of evidence that the Due Process Clause requires to prove

the offense is purely a matter of federal law. . . . [T]he deferential federal

standard, . . . leaves juries broad discretion in deciding what inferences to draw

from the evidence presented at trial, requiring only that jurors 'draw reasonable

inferences from basic facts to ultimate facts."') (quoting Jackson, 443 U.S. at

319).

H. Jenkins's Sodomy Conviction Must Be Reversed Because the
"Duplicitous" Jury Instruction Makes it Unclear Whether Jenkins Was
Found Guilty By a Unanimous Verdict.

While we thus agree with the Commonwealth that Jenkins is not entitled

to the dismissal of either charge, we must conclude that he is entitled to relief

from his sodomy conviction. The jury instruction addressing that charge ran

afoul of the rule articulated in Johnson v. Commonwealth, 405 S.W.3d 439 (Ky.

2013) and Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013) which

disallows so-called duplicitous instructions. He is not entitled to relief from the

rape conviction, however, because Jane's allegations that Jenkins abused her

when she was younger did not contravene Kentucky Rule of Evidence (KRE)

404(b), disallowing evidence of prior bad acts, and because Jenkins's other

allegations of error fare no better. We first address the problem with the

19
sodomy instruction, and then explain why Jenkins's other allegations of error

do not entitle him to any additional relief.

As noted above, Jane testified that prior to the rape Jenkins orally

sodomized her and had her orally sodomize him. Jenkins was charged,

however, with a single count of sodomy, and the jury instruction pertaining to

that charge provided only. that

You will find the Defendant guilty of Sodomy—First Degree under
this Instruction if, and only if, you believe from the evidence
beyond a reasonable doubt all of the following:

1. That in this county on or about September 15, 2005, and before
the finding of the indictment herein;

2. He engaged in deviant sexual intercourse with [Jane]; and

3. That he did so by forcible compulsion.

During his closing argument, the prosecutor noted the evidence of two

sodomies and told the jury that either one would justify a guilty verdict under

this instruction.

Similar scenarios occurred in both Johnson and Kingrey. In Johnson, the

defendant was charged with, and under a jury instruction comparable to the

one at issue here was found guilty of, a single count of child abuse. The

evidence, however, included proof of two distinct leg fractures that established

that the child likely had been abused on at least two different occasions. In

Kingrey, there was evidence that the defendant twice used a particular minor in

a sexual performance, but the jury instruction alleged only one such crime and

did not require the jury to specify a particular incident. In both cases we noted

that the instructions were "duplicitous," i.e., not deceitful, but rather double,
20
alleging either of two crimes in a single instruction. 9 We distinguished

duplicitous instructions from so called combination instructions—instructions

which allow the jury to agree that a particular set of actions by the defendant

amount to a particular crime, but to disagree (when the evidence supports

such disagreement) about which theory of the crime applies. Combination

instructions, we explained, do not run afoul of the Kentucky Constitution's

requirement that felony jury verdicts be unanimous, 10 because "no matter

which theory they accepted, all the jurors convicted under a theory supported

by the evidence and all the jurors convicted the defendant of the same offense."

Kingrey, 396 S.W.3d at 830. (emphasis supplied; citation and internal

quotation marks omitted).

Duplicitous instructions, however, do not provide the same guarantee

that all the jurors agreed as to the offense. Rather, a duplicitous instruction

"allow[s] the jury to convict [the defendant] of one crime based on two separate

and distinct criminal acts that violated the same criminal statute." 396 S.W.3d

at 831. In that situation, we held, the "multiple theories" analysis is

inapplicable, and the duplicitous instruction "violates the requirement of a

9Compare the pertinent part of the definition of "duplicity" in Black's Law
Dictionary: "The pleading of two or more distinct grounds of complaint or defense for
the same issue. In criminal procedure, this takes the form of joining two or more
offenses in the same count of an indictment. Also termed double pleading." BLACK'S
LAW DICTIONARY, p. 578 (9th ed. 2009).
10 Section 7 of the Kentucky Constitution guarantees felony defendants the

right to a "trial by jury," and our Courts have long held that that right includes a right
to the jury's unanimous verdict. Johnson, 405 S.W.3d at 448.

21
unanimous verdict," regardless of whether sufficient evidence existed of both

criminal acts. Id.

In both cases, we held that the constitutional violation amounted to so

manifest an injustice as to call for relief under Kentucky Rule of Criminal

Procedure (RCr) 10.26, the palpable error rule. Extending that conclusion in

Martin v. Commonwealth, 456 S.W.3d 1, 9-10 (Ky. 2015), we held that "all

unanimous-verdict violations constitute palpable error resulting in manifest

injustice." 11

Given the proof of two sodomies in this case, the sodomy instruction

quoted above, which allowed the jury to convict on the basis of either, as

though they presented merely alternative theories of a single offense, breached

the rule of Johnson and Kingrey. Under Martin, furthermore, the breach must

be deemed a palpable error. In light of this authority, Jenkins's sodomy

conviction, however well justified it may appear factually, must be reversed.

11 These cases thus, implicitly at least, overrule much of Ware v.
Commonwealth, 537 S.W.2d 174 (Ky. 1976), a case in which the defendant was
charged with and convicted of a single count of rape, whereas the proof at trial tended
to show that during the evening in question the defendant committed several sex
offenses against the alleged victim, including a number of rapes. Rejecting the
defendant's contention that the jury should have been admonished to limit the
purposes for which it could consider the evidence of rapes other than the first one, the
Court noted the frequency, in both adult-victim and child-victim cases, with which sex
offenses occur in bunches, and broadly approved, in light of that reality, the
prosecutor's use in that case of a single-count indictment, the introduction of
extrinsic-act evidence inextricably a part of the charged offense's context, and the use
of a jury instruction that "permit[ed] the state to prove its case in the alternative." 537
S.W.2d at 178.

22
III. The Trial Court Did Not Err By Denying Jenkins's Request For a
Sexual Misconduct Jury Instruction.

Jenkins next contends that for a number of reasons his rape conviction

should be reversed as well. That conviction was rendered unfair, he insists, by

the trial court's refusal to instruct on the lesser included offense of sexual

misconduct and by trial court evidentiary rulings concerning both Jenkins's

alleged prior bad acts against Jane and his responses during a post-polygraph

interview. None of these alleged errors, we conclude, entitles Jenkins to further

relief.

We begin with the alleged instructional error. KRS 510.140 provides

(and provided in September 2005) as follows:

(1) A person is guilty of sexual misconduct when he engages in
sexual intercourse or deviate sexual intercourse with another
person without the latter's consent.

(2) Sexual misconduct is a Class A misdemeanor.

At trial, Jenkins requested an instruction based on this statute and argued

that by requiring the element of intercourse without consent, but not the

element of forcible compulsion, KRS 510.140 defines a lesser included offense

of first-degree rape. The general rule, of course, is that, if requested, a trial

court must give a lesser-included offense instruction if, but only if,

"'considering the totality of the evidence, the jury might have a reasonable

doubt as to the defendant's guilt of the greater offense, and yet believe beyond

a reasonable doubt that he is guilty of the lesser offense."' Commonwealth v.

Swift, 237 S.W.3d 193, 195 (Ky. 2007) (quoting Houston v. Commonwealth, 975

S.W.2d 925, 929 (Ky. 1998)). Jenkins contends that a sexual misconduct

23
instruction was called for here because a reasonable juror could have believed

that, although the sexual intercourse Jenkins imposed upon Jane was non-

consensual (sexual misconduct), it was not forcibly compelled (rape). Jenkins's

premise is wrong: as explained fully infra, sexual misconduct is not a lesser

included offense of rape.

As Jenkins concedes, not long after the Penal Code went into effect

(January 1, 1975), this Court was asked to construe the apparent overlap of

KRS 510.140 with other statutes outlawing non-consensual intercourse and

non-consensual deviant intercourse, the rape and sodomy statutes. The Court

held that the sexual misconduct statute, with its misdemeanor penalty, was

intended to apply only in cases where the victim's non-consent was premised

on her age, and the perpetrator's young age, likewise—under eighteen if the

victim was under sixteen but not under twelve, and under twenty-one if the

victim was fourteen or fifteen—could be considered a mitigating factor. Cooper

v. Commonwealth, 550 S.W.2d 478 (Ky. 1977).

The Court based this construction on the Commentary that accompanied

the final draft of the Penal Code and that the General Assembly adopted along

with the Code in 1974. As the Court noted, the Commentary explains that

[t]he purpose in denominating such conduct between persons
within the specified age groups as sexual misconduct rather than
rape or sodomy is to eliminate an undesirable stigma. In such
cases the defendant may well have been persuaded by the 'victim'
to engage in the proscribed conduct. It seems unnecessarily harsh
to have a defendant within the prescribed age limitation who has
been convicted of such a statutory offense to bear a criminal record
labeling him as a 'rapist' or a `sodomist.' KRS 510.140 takes a
more realistic approach to the penalty imposed while at the same
time prohibiting the undesirable conduct.
24
Cooper, 550 S.W.2d at 479 (quoting Kentucky Penal Code, Final Draft, p. 138-

39 (Nov. 1971)). As construed in Cooper, therefore, because both Jenkins and

Jane were over the pertinent ages at the time of the alleged offenses, KRS

510.140 has no application to this case and did not allow for Jenkins's

requested jury instruction.

In the four decades since Cooper, this Court has applied and reaffirmed

the Cooper construction of KRS 510.140 a number of times, most recently in

Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 2005). See also, Spencer v.

Commonwealth, 554 S.W.2d 355 (Ky. 1977); Johnson v. Commonwealth, 864

S.W.2d 266, 277 (Ky. 1993); Iseral v. Commonwealth, 2003 WL 22227193 (Ky.

Sept. 18, 2003); Campbell v. Commonwealth, 2004 WL 314638 (Ky. Feb. 19,

2004). Nevertheless, noting that the Commentary could reasonably be read

less categorically than the Cooper Court read it, 12 Jenkins contends that the

Cooper Court's reading was, in fact, a misreading and asks us to reconsider it.

Implicitly relying on the principle of stare decisis, the principle that a

court ought to "adher[e] to the law of decided cases," Matheney v.

Commonwealth, 191 S.W.3d 599, 615 (Ky. 2006), (Cooper, J., dissenting), we

have summarily declined similar requests in the past. See e.g., Deno, 177

S.W.3d at 762. Judicial economy might suggest that we do so again but given

12 For example, the Commentary states that while preserving the concept of
statutory rape is the "basic" purpose of KRS 510.140, the statute also "provides a
useful plea-bargaining tool for the prosecutor in certain cases even though some
degree of forcible compulsion or incapacity to consent may be present." Kentucky
Penal Code, Final Draft, p. 138.

25
the concerns advanced by Jenkins and our dissenting colleagues, we explain

why criticism of Cooper is inappropriate. In short, it was correctly decided.

The initial question before us is not, as Justice Venters seems to suggest,

`how is KRS 510.140, the sexual misconduct statute, to be construed?' The

statute has already been construed. As noted above, nearly forty years ago the

unanimous Cooper court, followed less than four-and-a-half months later by

the unanimous decision in Spenser, observed that while the plain language

("[t]he bare wording," Cooper, 550 S.W.2d at 479) of that statute overlapped the

other statutes outlawing rape and sodomy, the Commentary accompanying

KRS 510.140 (Commentary expressly adopted by the General Assembly to aid

in interpreting the then-new Penal Code) together with the scheme of rape and

sodomy statutes, indicated that the overlap was not the General Assembly's

intent. 13 Rather, the Court believed, the misdemeanor offense was intended

merely to fill the gaps left in the statutory rape and statutory sodomy statutes

(KRS 510.050(a), rape in the second degree; KRS 510.060(b), rape in the third

degree; KRS 510.080(a), sodomy in the second degree; and KRS 510.090(b),

sodomy in the third degree) for perpetrators too young to be guilty of the felony

offenses. Thus understood, the sexual misconduct statute implicated neither

13 As we have noted in numerous cases "[i]n construing statutes, our goal . . . is
to give effect to the intent of the General Assembly." Shawnee Telecom Resources Inc.
v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). "[T]he cardinal rule of statutory
construction is that the intention of the legislature should be ascertained and given
effect." "MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193 (Ky. 2009).

26
the equal protection nor the jury instruction questions advanced by the

defendants in those first cases.

Given Cooper and Spenser and the long line of subsequent cases

applying Cooper, the initial question before us, as Justice Cunningham

implicitly acknowledges, is not whether the Cooper Court "got it right," i.e.,

construed KRS 510.140 the way we would construe it in the first instance, but

rather whether a settled precedent in our law should be undone. Stare decisis,

as noted, is the doctrine or principle that courts should respect their own

decisions. For if they do not, then why should anyone else? Justice Cooper's

dissent in Matheney, supra, discusses at length the history of and rationales

behind the stare decisis doctrine, the current understanding of which in the

United States "is generally . . . that precedent is presumptively binding. In

other words, courts cannot depart from previous decisions simply because they

disagree with them. . . .However, judges may disregard precedent if they offer

some special justification for doing so." 191 S.W.3d at 619-20 (citations and

internal quotation marks omitted; emphasis in the original). See also, 191

S.W.3d at 623-25 (noting Kentucky cases in accord with that general

understanding of the doctrine).

The escape hatch is necessary because, while judicial economy, stability,

and legitimacy—values promoted by the stare decisis principle—are all of key

importance, no less important is the assurance that the law not "bell shackled

to past folly." (Cunningham, J., dissenting) See also, Allen v. Commonwealth,

395 S.W.3d 451 (Ky. 2013) ("[T]he doctrine of stare decisis does not commit us

27
to the sanctification of . . . fallacy.") (quoting Morrow v. Commonwealth, 77

S.W.3d 558, 559 (Ky. 2002)). Balancing these interests poses an obvious

problem, inasmuch as the exception can easily be thought to swallow the rule.

Justice Brandeis reflected on the dilemma in his dissent in Burnet v.

Coronado Oil & Gas Co., 285 U.S. 393 (1932):

Stare decisis is not, like the rule of res judicata, [a] universal
inexorable command. The rule of stare decisis, though one tending
to consistency and uniformity of decision, is not inflexible.
Whether it shall be followed or departed from is a question entirely
within the discretion of the court, which is again called upon to
consider a question once decided. . . . Stare decisis is usually the
wise policy, because in most matters it is more important that the
applicable rule of law be settled than that it be settled right. . . .
This is commonly true even where the error is a matter of serious
concern, provided correction can be had by legislation. But in
cases involving the Federal Constitution, where correction through
legislative action is practically impossible, this court has often
overruled its earlier decisions. The court bows to the lessons of
experience and the force of better reasoning, recognizing that the
process of trial and error, so fruitful in the physical sciences, is
appropriate also in the judicial function.

285 U.S. at 405-08 (citations, internal quotation marks, and footnotes omitted).

This is a statutory and not a constitutional case, so the stare decisis

interest is even stronger than it is in the constitutional cases to which Justice

Brandeis referred. Simply put, in the forty years since Cooper, the Kentucky

legislature could have "provided correction" if that decision were truly flawed,

and it has not done so. Putting aside the statutory/ constitutional distinction

for the moment, however, have experience and the force of better reasoning

truly reduced to "folly" the Cooper Court's construction of KRS 510.140? They

have not.

28
 The defendant in Cooper, as does Jenkins here, maintained that he was

entitled to a jury instruction on sexual misconduct as a lesser offense included

within the more serious rape and/or sodomy accusation. Under the Cooper

Court's construction of KRS 510.140, limiting that statute to a subset of

statutory rape/sodomy, the requested instruction was clearly not appropriate,

since neither victim nor perpetrator was within the statute's supposed age

limits. However, even construing KRS 510.140 as overlapping the rape and

sodomy statutes, as Jenkins and the dissenters advocate, it would not entitle

Jenkins to the misdemeanor jury instruction because it is not a lesser included

offense.

The United States Supreme Court addressed the jury instruction issues

posed by the "lesser-included offense doctrine" in Sansone v. United States, 380

U.S. 343 (1965). In that case, the defendant was accused of willfully

attempting to evade federal income taxes, a felony under section 7201 of the

Internal Revenue Code of 1954. In the circumstances of the case, that statute

overlapped two misdemeanor provisions of the Code. The defendant sought

jury instructions on the misdemeanors, but the trial court denied his request.

The Court of Appeals for the Eighth Circuit affirmed. The Supreme Court

accepted review "to consider the applicability of the lesser-included offense

doctrine," 380 U.S. at 347, and it, too, affirmed.

As the Court explained, under Federal Rule of Criminal Procedure 31(c),

"[i]n a case where some of the elements of the crime charged
themselves constitute a lesser crime, the defendant, if the evidence
justifie[s] it . . . [is] entitled to an instruction which would permit a
finding of guilt of the lesser offense." . . . But a lesser-offense
29
 charge is not proper where, on the evidence presented, the factual
issues to be resolved by the jury are the same as to both the lesser
and greater offenses. . . . In other words, the lesser offense must be
included within but not, on the facts of the case, be completely
encompassed by the greater. A lesser-included offense instruction
is only proper where the charged greater offense requires the jury
to find a disputed factual element which is not required for
conviction of the lesser-included offense.

380 U.S. at 349-50 (quoting Berra v. United States, 351 U.S. 131, 134 (1956),

other citations omitted). In a footnote, the Court observed that otherwise, the

instructions would only be inviting the jury to pick arbitrarily between the

felony and the misdemeanor, an encroachment, the Court believed, on the

judge's duty "to determine the punishment to be imposed." Id., n.6.

A number of state courts have noted their agreement with Sansone. See,

e.g., People v. Cornell, 646 N.W.2d 127 (Mich. 2002) (holding that Michigan's

approach to lesser-included offense instructions is in accord with that of

Sansone); Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) (same for

Texas). Of particular interest is New York's adoption of Sansone and

application of the principle to the rape/sexual misconduct question because

our sexual offense statutes are patterned on the New York statutes. 14

14 As we have noted many times, our Penal Code was heavily influenced by the
Model Penal Code. See, e.g., Johnson v. Commonwealth, 449 S.W.3d 350, 354 (Ky.
2014) (Cunningham, J., concurring) (noting that the 1974 enactment of "much of the
Model Penal Code" was part of a broader reform effort that included the creation of our
unified court system); Dannye Holley, The Influence of the Model Penal Code's
Culpability Provisions on State Legislatures, 27 Sw. U. L. Rev. 229 (1997) (noting that
at least thirty-five states, Kentucky among them, adopted or revised their criminal
codes in light of the Model Penal Code). However, for much of KRS Chapter 510,
including its rape, sodomy, and sexual misconduct provisions, the General Assembly
relied not on the Model Penal Code, but rather on Article 130 of the Penal Laws of New
York. American Law Institute, Model Penal Code and Commentaries, Part II, § 213.1,
p. 300 n.67 (1980) (noting that Kentucky, along with at least Alabama and Oregon,
adopted provisions "virtually identical" to provisions in the New York statutes); Shapo,
30
 [T]he submission (to the jury) of a lesser degree or an included
crime is justified only where there is some basis in the evidence for
finding the accused innocent of the higher crime, and yet guilty of
the lower one. . . . The trial court may not, however, permit the
jury to choose between the crime charged and some lesser offense
where the evidence essential to support a verdict of guilt of the
latter necessarily proves guilt of the greater crime as well.

People v. Richette, 349 N.Y.S.2d 65, 68 (N.Y. 1973) (citing Sansone; other

citations and internal quotation marks omitted).

The New York courts have held repeatedly that sexual misconduct, in a

case where it overlaps the alleged felony offense, is "not a lesser included

offense of [the felony] since an acquittal of the [felony] charge would also, as a

matter of law, be an acquittal of the sexual misconduct charge." People v.

Maxwell, 688 N.Y.S.2d 262 (App. Div. 1999) (citations and internal quotation

marks omitted); People v. McEaddy, 330 N.Y.S.2d 65 (N.Y. 1972) (holding that

acquittal of forcible rape charge precluded conviction of sexual misconduct for

the same behavior); People v. Cole, 622 N.Y.S.2d 354, 356 (App. Div. 1995)

(explaining that where the evidence is such that there is no elemental

difference between the alleged felony offense, rape in the first degree, and the

sexual misconduct misdemeanor, "[s]exual misconduct is not a lesser included

offense of rape in the first degree," and hence the trial court did not err by

refusing to instruct the jury on sexual misconduct). 15

Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500,
1513 (1975) (contrasting the Model Penal Code and New York approaches and noting
Kentucky, Hawaii, and Oregon's adoption of certain aspects of the New York
provisions).
15 This Court has indicated that sexual misconduct can be a lesser included
offense of forcible rape when the jury might doubt the allegation of forcible compulsion
but still find that the victim and the perpetrator were the right ages for the incapacity

31
 The wisdom of the New York courts' approach is underscored by simply

looking at the elements of first-degree rape and sexual misconduct as stated in

our own statutes. As noted, Jenkins was convicted of first-degree rape under

KRS 510.040(1) (a) based on his having "engage[d] in sexual intercourse with

another person by forcible compulsion." The sexual misconduct statute, KRS

510.140, criminalizes "engag[ing] in sexual intercourse or deviate sexual

intercourse with another person without the latter's consent." Jenkins and the

dissenters obviously see some "daylight" between "forcible compulsion" and

"without the latter's consent" but, in fact, there is none as a matter of law, at

least not on these facts. "Lack of consent" is expressly defined in KRS 510.020

in pertinent part as follows:

(1) Whether or not specifically stated, it is an element of every
offense defined in this chapter that the sexual act was
committed without consent of the victim.
(2) Lack of consent results from:
(a) Forcible compulsion;
(b) Incapacity to consent; or
(c) If the offense charged is sexual abuse, any
circumstances in addition to forcible compulsion or
incapacity to consent in which the victim does not
expressly or impliedly acquiesce in the actor's conduct.

As for "incapacity to consent," in subsection (3) the statute deems the following

persons incapable of consent: those who are less than sixteen years old, who

have an intellectual disability or mental illness, who are mentally incapable or

physically helpless, or who are in the custody of state or local authorities and

to consent form of the crime. Johnson v. Commonwealth, 864 S.W.2d 266 (Ky. 1993).
This case does not present that scenario, and so we need not address that question
here.

32
are abused by someone employed by that governmental authority. The

incapacity to consent provision is clearly not applicable to Jenkins's charges

nor is KRS 510.020(2)(c) because he has not been charged with sexual abuse. 16

SobyprcesflimnathONLYorflacknsetogizdur

Kentucky law and applicable to this case is "forcible compulsion," KRS

510.020(a). With this simple process of statutory construction, it is patently

clear that the rape statute criminalizes engaging in sexual intercourse with

another by forcible compulsion and (absent the rule in Cooper] the sexual

misconduct statute criminalizes the exact same conduct. Both offenses are

reduced to (1) sexual intercourse and (2) forcible compulsion. Under the

lesser-included offense doctrine, Sansone, 380 U.S. at 349-50, instructions on

both offenses cannot be justified because the "factual issues to be resolved by

the jury are the same as to both."

Kentucky has never had cause to adopt Sansone but it certainly is

consistent with this Court's precedent regarding when a lesser-included offense

instruction is justified. "[A]n instruction on a lesser included offense is

required only if, considering the totality of the evidence, the jury might have a

reasonable doubt as to the defendant's guilt of the greater offense, and yet

believe beyond a reasonable doubt that the defendant is guilty of the lesser

16 This subsection is, however, instructive. By including for sexual abuse
charges only a form of non-consent "in which the victim does not expressly or
impliedly acquiesce in the actor's conduct," our General Assembly has shown it knows
how to provide a different definition if it chooses to do so. In fact, this definition
appears to be what Justice Cunningham contemplates for the sexual misconduct
statute but the legislature expressly limited it to sexual abuse charges.

33
offense." Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky. 2004). See also,

Swift, 237 S.W.3d at 195. Obviously, where the elements of the two offenses

are identical it is impossible for a jury to have a reasonable doubt as to one

offense (here, rape in the first-degree by forcible compulsion) but not as to the

other (in this case, sexual misconduct through forcible compulsion).

So, statutory construction supports Cooper (which relied on legislative

intent as discerned from the Commentary accompanying the statute), and New

York precedent illustrates that the state from which we drew our sexual offense

statutes long ago reached the same conclusion. Although that would seem to

be more than enough to establish that "experience and the force of better

reasoning", Burnet, 285 U.S. at 408, have not shown that Cooper was folly, we

are compelled to note some obvious additional reasons for rejecting the

dissenters' new reading of KRS 510.140.

A properly instructed jury, under the dissenters' theory, would receive

both a rape and a sexual misconduct instruction but how would the jurors

possibly distinguish between the two offenses, given that "without the latter's

consent" would be defined under KRS 510.020 and the only applicable option

would be by "forcible compulsion"? There would be no principled grounds for

distinguishing the two offenses because guilt of one would equate with guilt of

the other. Construing "without the latter's consent" as "something less" than

forcible compulsion as Justice Cunningham suggests is not appropriate.

Where the legislature has defined a term or phrase, as it has with "lack of

consent," the courts are not free to ignore it. Schroader v. Atkins, 657 S.W.2d

34
945, 947 (Ky. 1983) ("When the General Assembly specifically provides that a

word used in a statute shall have a particular meaning, the courts must accept

that statutory definition in construing the statute even though the statutory

definition is quite different from the ordinary meaning of the word.")

And once a jury convicted, how would the appellate court possibly

respond to the defense argument that the jury should have seen what he did as

sexual misconduct, a misdemeanor, and not rape, a felony? When that type of

error is raised, appellate courts typically survey the evidence and apply the

statutory elements to determine if a reasonable juror could find guilt beyond a

reasonable doubt. Benham, 816 S.W.2d at 186-87. By what standard would

that thorny issue be judged when the elements of the two offenses are the same

as a matter of law? Finally, and most concerning of all, this new reading of

KRS 510.140 would mean that this Class A misdemeanor offense would be an

option in the jury instructions in many, if not most, rape and sodomy cases

premised on forcible compulsion, and the jury would be invited to make up

their own standards of "bad" forcible compulsion versus "not so bad" forcible

compulsion in order to distinguish the charged offense of rape or sodomy from

sexual misconduct. Surely, most surely, that cannot have been the legislative

intent.

As Justice Brandeis noted all those years ago in Burnet, stare decisis is

usually the wise course. It is so here.

IV. The Trial Court Did Not Err By Allowing Evidence of "Same Victim"
Prior Bad Acts.

35
 We turn now to Jenkins's allegations of evidentiary error, beginning with

his claim that Jane's testimony relating the alleged 2005 episode of sodomy

and intercourse to similar episodes in the past ran afoul of KRE 404(b)'s

disallowance of evidence of extrinsic acts reflecting adversely on the actor's

character. Because Jane's testimony was relevant to and sufficiently probative

of material issues in the case and did not merely cast a bad light on Jenkins's

character, the trial court did not abuse its discretion by allowing the testimony.

Before trial, the Commonwealth gave notice, pursuant to KRE 404(c),

that it intended to introduce evidence that Jenkins had "in the past,"

committed acts against Jane similar to those with which he was then charged.

The Commonwealth also noticed its intent to introduce evidence that in 1992

Jenkins had been convicted in Ohio of "gross sexual imposition" for forcibly

touching a female relative in a sexual manner. Jenkins moved to exclude both

types of evidence. He argued that the Ohio matter was too temporally remote

to be relevant, and that the allegations regarding Jane had never been

substantiated or prosecuted and thus would be unduly prejudicial. The trial

court granted Jenkins's motion with respect to the Ohio charge, thus

disallowing mention of it during the guilt phase of the trial, but it ruled that

Jane could testify regarding Jenkins's alleged mistreatment of her while she

was between the ages of approximately seven to thirteen. The court answered

defense counsel's objection by assuring him that he could cross-examine Jane

concerning how her prior accusations had been received. For his part, the

36
prosecutor assured the court that he would stay as clear of the earlier

allegations as he could and would touch upon them only "very lightly."

As noted, Jane testified at trial that when Jenkins woke her the morning

of the offenses, she at first pretended not to wake up, in hopes that he would

give up and go away. But, she testified, "It never worked. I tried it a lot. So, it

never worked." Later, when she was asked if, despite not wanting to do so, she

had sodomized Jenkins merely because he had asked her to, she testified,

Jane: Yes.

Def: He didn't make you do it?

Jane: He asked me for it, and, no, I mean .. .

Def: He didn't make you do it?

Jane: No. I put myself back to being a kid again. So, no, he didn't
make me do it. It was just something that always happened.

When later defense counsel wondered why Jane had waited so long (from

September 2005 until the beginning of 2006) to report the incident, Jane

retorted that she had not delayed, that she had reported earlier incidents to

school authorities and to the police.

The earlier allegations also came up during the Commonwealth's cross-

examination of Susan Jenkins, Jane's grandmother and the defendant's wife.

Susan agreed that she had had a close relationship and a great deal of contact

with Jane until Jane was about thirteen or fourteen years-old, but at that point

the relationship had been severed abruptly. Susan elaborated that the

severing had been her choice, that she had come to feel that Jane was not to be

trusted. The Commonwealth responded along the lines of, "Or at least
37
 somebody in the household was not to be trusted?" At that point, a defense

objection moved the questioning in a different direction.

Jenkins contends that the jury would have attributed to him these and a

couple of other references to Jane's having been subjected to sexual contact at

an earlier age, notwithstanding the fact that the attribution was never made

)express or the allegations specific. He insists that as references to him this

prior-act evidence violated KRE 404, which addresses character evidence and

evidence of other crimes. In response, the Commonwealth asserts that Jane's

"cryptic" references to prior abuse would not have been attributed to Jenkins

and so do not implicate the character evidence rule. On the question of

attribution, we must agree with Jenkins.

As set out in detail above, although Jane never referred to her prior

abuser by name, she indicated clearly enough that it was an earlier pattern of

activity with Jenkins that she found herself slipping back into against her will.

The prosecutor himself laid to rest any possibility of doubt on that score when,

during his cross-examination of Susan Jenkins, he implied that David Jenkins,

not Jane, was the reason Jane stopped being a visitor at Susan's house. KRE

404 applies, moreover, even to "suggestive references to the defendant's prior

crimes, wrongs, or bad acts." Wiley v. Commonwealth, 348 S.W.3d 570, 581

(Ky. 2010). Jenkins is correct, therefore, that KRE 404 applies, but we

ultimately agree with the Commonwealth that Jane's testimony did not violate

that rule.

In pertinent part, KRE 404 provides that

38
 [e]vidence 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 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).

The rule protects against the introduction of extrinsic act evidence when

that evidence is offered solely to prove character, or criminal disposition, the

concern being that juries are unduly susceptible to that type of evidence. Bell

v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). The rule does not,

however, preclude the use of extrinsic act evidence for proper purposes, such

as the purposes listed in KRE 404(b)(1) and 404(b)(2). To help with the often

difficult distinction between proper and improper uses of extrinsic act evidence,

the Bell Court (following a suggestion by Professor Lawson) recommended the

assessment of such evidence by means of a three-part inquiry into relevance,

probativeness, and prejudice.

With respect to relevance, the assessing court asks, is the evidence

relevant "for some purpose other than to prove the criminal disposition of the

accused?" Bell, 875 S.W.2d at 889. Aside from showing criminal propensity,

that is, the extrinsic act evidence must bear materially on an element of the

offense or on some other fact actually in dispute. Southworth v.

Commonwealth, 435 S.W.3d 32 (Ky. 2014) (noting that prior act evidence

tending to show the defendant's knowledge of a process did not pass the

39
relevance inquiry because the process had not been shown to bear materially

on the case); but cf. Estelle v. McGuire, 502 U.S. 62 (1991) (noting that,

generally, material evidence is not rendered immaterial by the defendant's

decision not to contest it).

The court should also consider whether the extrinsic act evidence is

"sufficiently probative," Bell, 875 S.W.2d at 890, i.e., could the jury "reasonably

infer that the prior bad acts occurred and that [the defendant] committed such

acts[?]" Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997) (citing

Huddleston v. United States, 485 U.S. 681, 689 (1988), which discusses the

virtually identical federal rule). In O'Bryan v. Commonwealth, 634 S.W.2d 153,

157 (Ky. 1982 ), for example, the Commonwealth alleged that the defendant

had murdered her husband by poisoning him with arsenic, but it was not

allowed to introduce evidence that her former husband died from arsenic

poisoning because there was "no evidence of a substantial nature to indicate

that [the defendant] committed such crime."

And finally, the court asks, is the extrinsic act evidence unduly

prejudicial, that is, is the tendency of the evidence so strongly to lead the jury

into improper character inferences that that tendency "substantially

outweigh[s] [the evidence's] probative value" with regard to its proper uses?

Bell, 875 S.W.2d at 890. 17 In Bell itself, a case in which the defendant was

17 It should be noted that, technically, the prejudice/probative value inquiry
under Bell and KRE 404(b) is a part of, but not necessarily all of, the
prejudice/probative value inquiry required under KRE 403, which applies to relevant
evidence generally and which allows for exclusion notwithstanding relevance when the
evidence would be unduly prejudicial for any reason, not just because it invites an
40
charged with sodomy against his girlfriend's child, the Commonwealth was

allowed to introduce testimony by the alleged victim's older sibling, testimony

to the effect that the defendant had also perpetrated two acts of sodomy

against him. Using its three-inquiry analysis, the Court held that the older

sibling's testimony should not have been admitted. In the Court's view, the

acts the older child alleged did not bear a close enough resemblance to the acts

allegedly perpetrated against the victim to suggest much more than that the

defendant was disposed to commit that class of crime, the very sort of

character-based implication that KRE 404 is meant to preclude. Because the

risk of undue prejudice was thus high and the legitimate probative value of the

evidence low, if any, the third part of the Bell analysis indicated that the older

sibling's evidence ought not to have been allowed.

Unlike Bell, however, this case involves extrinsic acts perpetrated not

against an "extrinsic" victim, as it were, but rather against the same person

allegedly the victim of the crimes for which the defendant is being tried.

Evidence of similar acts perpetrated against the same victim, we have noted

many times, is "almost always admissible," under KRE 404(b), because it will

almost always be significantly probative of a material issue aside from the

improper character inference. Trial courts thus should be mindful that the
prejudice/probative value inquiry under KRE 403 is potentially broader than the
similar inquiry Bell suggests is required under KRE 404(b). That does not mean,
however, that in practice the two inquiries (if, indeed there are two inquiries) cannot
be merged, as they often are. See, e.g., Soto v. Commonwealth, 139 S.W.3d 827, 859
(Ky. 2004) (noting that the effect of remoteness on the probative value of a prior bad
act is part of the KRE 403 balancing test, but suggesting that balancing need be
assessed only once); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)
(same).

41
defendant's character. Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002).

See also, e.g., Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008); Driver v.

Commonwealth, 361 S.W.3d 877 (Ky. 2012); Lopez v. Commonwealth, 459

S.W.3d 867 (Ky. 2015). That does not mean, of course, that evidence of prior

acts against the same victim is automatically admissible—relevance to a

material issue and probativeness must be shown, and the possibility of undue

prejudice must still be considered—but our experience with these cases has

taught that in most of them the Bell inquiry leads to admission.

This case is no exception. As is often the case when sex offenses are

alleged, one of the principal issues was whether a crime occurred at all. Jane

alleged that Jenkins forced her into sex acts, while Jenkins denied sexual

contact altogether. Relevant to that issue was whether Jenkins had a motive to

do as Jane alleged, and Jane's testimony to the effect that Jenkins had done

similar things to her during her childhood (seemingly without consequence)

tended to show that Jenkins did indeed find Jane attractive as a vulnerable

object of his sexual impulses. In this instance, therefore, Jane's "same victim"

testimony served not as propensity evidence tending to show merely that

Jenkins had a propensity for this type of crime; it related rather to this

particular crime by tending to show that Jenkins had a motive involving this

particular victim.

Jane's prior-act testimony was also relevant to another material issue.

KRS 510.020 makes "lack of consent," as statutorily defined, an element of

every offense defined in KRS Chapter 510. The Commonwealth alleged that in

42
this case the lack of consent resulted from forcible compulsion. Jane herself

testified, however, that while she repeatedly told Jenkins that she did not want

to engage in sex with him and physically resisted his advances, her response

was largely passive. Jane's very limited prior-act testimony about childhood

abuse bore on that passivity and was likely to help the jury assess the manner

of Jane's response to this episode and to determine whether her participation

was forcibly compelled. The prior-act testimony was relevant, therefore, to the

material issue of consent/ forcible compulsion. For both reasons, Jane's prior-

act testimony was relevant "for some other purpose" and was not excludable as

mere evidence of bad character.

With respect to the Bell "probativeness" factor, Jane's testimony was

sufficient to permit a reasonable juror to conclude that the prior act occurred

and that Jenkins was the actor. Purcell v. Commonwealth, 149 S.W.3d 382,

400 (Ky. 2004) (noting that "[t]he testimonies of [alleged prior victims of sex

offenses] satisfied this [the "probativeness"] aspect of the test.").

Relevance and probativeness, of course, do not exhaust the Bell analysis.

As we noted in Newcomb v. Commonwealth, 410 S.W.3d at 77, under Bell's

third step, "a trial court should exclude evidence otherwise admissible under

KRE 404(b) if its probative value is substantially outweighed by the danger of

undue prejudice." The Bell Court thought it axiomatic that a risk of undue

prejudice (the forbidden character inference) is inherent in prior-bad-acts

evidence and so urged trial courts to "apply the rule [KRE 404(b)] cautiously."

Bell, 875 S.W.2d at 889. That risk will vary to some extent with the

43
opprobrium attached to the prior act, i.e., the degree to which the evidence is

apt to "rouse the jury to overmastering hostility." Newcomb, 410 S.W.3d at 77

(citation and internal quotation marks omitted). 18 As Professor Lawson notes,

the risk of undue prejudice may be mitigated in some cases by an admonition

limiting how the prior act evidence may be used, Lawson, § 2.30[2][d], and also

by limiting "how much the jurors are permitted to hear about 'other crimes."'

Id.

A wide variety of factors can bear on the probative value of the prior-

crime evidence,

including the strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the interval of
time that has elapsed between the crimes, the need for the
evidence, [and] the efficacy of alternative proof.

Newcomb, 410 S.W.3d at 77 (quoting McCormick on Evidence, Ch. 17 § 190

(citations omitted)). Among these factors, the proponent's need for the other-

crime evidence is of particular importance, since "it is the incremental probity

of the evidence that is to be balanced against its potential for undue

prejudice."' Lawson, § 2.30[2][d] (quoting United States v. Beechum, 582 F.2d

898, 914 (5th Cir. 1978)). At the end of the day, however, the trial court has a

great deal of discretion in carrying out the balancing, and its ruling will not be

18 Kentucky has thus far rejected modifications to the Federal Rules of
Evidence—federal rules 413, 414, and 415—that in essence create an exception to
Rule 404(b) for evidence of prior sex crimes. This Court has, however, at least with
respect to "same victim" cases, expressed for the most part "a very liberal attitude
toward the admissibility of other crimes evidence." Robert G. Lawson, The Kentucky
Evidence Law Handbook § 2.30[5][e] (5th ed. 2013) (hereafter, Lawson).

44
disturbed absent an abuse thereof. Bell, 875 S.W.2d at 890; Commonwealth v.

English, 993 S.W.2d at 945. There was no abuse of discretion here.

The "incremental probity" of Jane's prior-act testimony was substantial,

because it gave the jury insight it otherwise would not have had into a possible

motive for Jenkins's seemingly out-of-the-blue sexual assault on his seventeen

year-old step-granddaughter. Indeed, the need for prior-crime evidence of

motive "is greatest and [its] relevance is clearest when the defense is denial of

the criminal act." Lawson, § 2.30[4][e]. Jane's prior-act testimony also

provided key contextual evidence bearing on the issue of forcible compulsion,

an issue of some subtlety and complexity in this case. 19

On the prejudice side of the balance, the prior acts were not unduly

emphasized by repeated mention or excessive detail, and Jenkins was granted

a full opportunity to contest Jane's prior-act allegations. The probative value

being substantial, and the risk of undue prejudice being recognized and

mitigated, such that it did not substantially outweigh the former, the trial

court's decision to admit Jane's limited prior-act testimony was not an abuse of

discretion. 20

19 As an important aspect of Jane's account of the current 2005 offenses, the
prior acts from her childhood could arguably be deemed "inextricably intertwined"
with them and could thus be thought to implicate KRE 404(b)(2) as well as 404(b)(1).
We need not pursue that possibility, however, since admission of Jane's testimony
under section 404(b)(1) was appropriate.
20Jenkins contends that his forty-year sentence, the maximum possible
sentence for the crimes of which he was convicted, indicates that the prior-act
testimony proved prejudicial at sentencing. This argument confuses different senses
of the word "prejudice" and different standards of review. Had the trial court erred by
admitting the prior-act testimony, the effect of that testimony would have been
relevant to a consideration of whether the error was harmless, say, or palpable.
45
V. The Trial Court Did Not Abuse its Discretion By Allowing Into
Evidence Portions of Jenkins's Post-Polygraph Interview.

A. The Interview Evidence Did Not Impose an Unconstitutional
Burden on the Exercise of Jenkins's Rights.

Finally, Jenkins contends that the trial court erred by allowing the

Commonwealth to introduce into evidence statements he made in the course of

a post-polygraph interview. As noted above, in July 2006 Jenkins voluntarily

submitted to a polygraph exam. At the conclusion of the exam, Jenkins was

advised that there had been some deceit, and he was referred to the lead

detective, Bryan Whittaker. Whittaker then questioned Jenkins about the

"failed" exam. Prior to trial, Jenkins moved to exclude any reference to the

polygraph exam, including any reference to the post-exam interview.

Generally, however, properly admitted evidence simply has the effect that it has; it
does not become improperly admitted because the jury happens to give it weight. The
actual prejudice that pertains to harmless-error and to palpable-error analysis should
not be confused with the potential for undue prejudice that bears upon a court's
admissibility ruling under KRE 403 and 404.
That said, we certainly agree with Jenkins that the risk of punishment for an
uncharged prior bad act is one of the main reasons courts are to treat KRE 404(b)
evidence cautiously. It is also one of the main reasons an admonition limiting how the
jury may use such evidence might well be appropriate in a given case. In this case, as
noted above, the trial court's KRE 404(b) ruling was duly considered and was within
the court's discretion. Jenkins did not request a limiting admonition. See KRE 105(a)
("[U]pon request" a trial court shall admonish the jury with respect to the permissible
use of "limited admissibility" evidence.). The prosecutor's guilt-phase closing,
moreover, made no direct and little indirect reference to Jenkins's alleged prior acts. It
certainly did not harp on them. Instead, the prosecutor focused on Jane's having no
reason to fabricate her allegations, and on the seriousness of these charges.
During the sentencing phase, the Commonwealth introduced Jenkins's 1992
Ohio conviction for gross sexual imposition, and then it did indeed argue, again
without any direct reference to Jane's prior-act allegations, that a repeat sex offender
merited the maximum sentence. In their totality, the circumstances simply do not
suggest that these proceedings were rendered unfair or unjust by the admission
during trial of Jane's KRE 404(b) testimony.

46
 The Commonwealth agreed that reference to the exam itself would be

improper, but it argued that, once redacted so as not to mention or imply the

polygraph exam, Jenkins's post-exam statement was admissible. It advised

Jenkins and the court, furthermore, that it had prepared some duly sanitized

"snippets" from the audio portion of Jenkins's interview and intended to

introduce them during Whittaker's testimony.

Jenkins objected to the introduction of any interview "snippets" and

argued, essentially, that the post-exam interview was so inextricably

intertwined with the polygraph that redacting that exam from the interview

would inevitably give the jury a false impression of the interview, whereas any

attempt adequately to explain the context of the interview would inevitably

expose the jury to the polygraph exam. In light of this alleged dilemma,

Jenkins moved to exclude the Commonwealth's proposed interview evidence.

The trial court overruled the defense objection, but noted that the

Commonwealth's "snippets" would be subject to the rule of completeness in its

present guise as KRE 106 ("Remainder of or related writings or recorded

statements").

As promised, during Sergeant Whittaker's direct examination, the

Commonwealth introduced two excerpts from Jenkins's post-polygraph

interview. We have reproduced the pertinent portions of the interview with the

47
excerpts introduced by the Commonwealth in bold. 21 The interview began with

Jenkins asserting that he had told the examiner the truth, notwithstanding

any indication to the contrary by the polygraph machine. Whittaker greeted

him with, "So, [Mr. Jenkins], what are we gonna do now?" The transcript of the

ensuing interview fills some thirty pages. In the course of the interview,

Jenkins asserted repeatedly that he told the truth during the polygraph exam

and that he "never touch[ed] that girl." Jenkins followed one such denial by

saying, "Now, maybe, in my mind, I might have wanted to at one time when she

was good looking or something like that, but I have never touched that girl."

The detective continued as follows:

Det. Whittaker: Is that what was going through your mind, you
think?

Jenkins: I don't know, maybe. But I have never touched that girl.
She's my granddaughter, for God's sake.

Det. Whittaker: She's your step-granddaughter; that's a big
difference.

Jenkins: I look, I look at it like she's my real granddaughter.

Det. Whittaker: Uh hm. So maybe that's what screwed up the test.
Have you had fantasies about [Jane]?

Jenkins: No, not really.

Det. Whittaker: Not really? What's that mean?

Jenkins: Just, well, you know what happens when you ..

Det. Whittaker: I know. That's, that's what I'm saying. Tell

21 We have also indicated by means of underlining those portions of the
interview Jenkins sought to have admitted pursuant to KRE 106. Jenkins's motion
and the trial court's ruling are discussed below.

48
 me about what you think might have went through your head
while he was asking you these questions.

Jenkins: She's gotten big, bigger and everything and . .

Det. Whittaker: What [inaudible]

Jenkins: She's more developed than what she was.

Det. Whittaker: She used to look better—is that what you're
saying—than she does now?

Jenkins: Yeah, a lot better.

Det. Whittaker: When did she start getting bigger?

Jenkins: [inaudible] That's before, before, uh, this last episode
when she stayed two nights at our house.

Det. Whittaker: Uh hm.

Jenkins: I hadn't seen her in four years.

Det. Whittaker: I think that's pretty much what she said. She
hadn't been over in a while. You think that, maybe that's what
screwed up the test then?

Jenkins: It could, may, maybe, you know [inaudible], yeah. But I
have never touched her, and I'll swear that before God on a stack
of Bibles. I promise you I did never touch that girl.

After that exchange, Detective Whittaker confronted Jenkins with the

possibility that he (Jenkins) and Jane had had consensual sex, that for some

reason Jane had changed her mind about it, and that now Jenkins was

reluctant to admit his mistake to his wife and to the other members of his

church. Jenkins reiterated, however, that "I don't remember ever having sex

with her, I don't." .. .

Det. Whittaker: So you don't remember?

Jenkins: I ain't never, ever.

49
Det. Whittaker: What about your medication?

Jenkins: What about 'em?

Det. Whittaker: Ain't you had stuff to make you [inaudible] there at
the time?

Jenkins: One of them was a [inaudible] sleep.

Det. Whittaker: Is there anything in your sleep that you don't, you
know—you see what I'm getting at here? There may be a
medication problem. You've already told me you've had, you've
had these thoughts about [Jane].

Jenkins: Yeah.

Det. Whittaker: Alright, so your subconscious is working
against you.

Jenkins: I have about, I have about a lot of women.

Det. Whittaker: No, I mean . . .

Jenkins: But that doesn't mean I put my hands on them.

Det. Whittaker: A lot of women don't come in your house and
spend the night. So, there she is, sleeping in the living room.
If you get your medication, and your subconscious is already
working against you here: . . . See what I'm getting at? Is that
possible?

Jenkins: It's possible.

Det. Whittaker: Well that could explain it.

Jenkins: But I don't remember anything.

Det. Whittaker: Okay, I think we're getting closer to the truth
now.

Jenkins: I think it is possible. I didn't think about that, but it
is possible. But I swear to you on a stack of Bibles I never put my
hands on her, never.

Det. Whittaker: But you just told me it was possible you might,
50
 could, might, maybe, could have done it after you took your
medication.

Jenkins: In my mind, maybe, I don't . . . maybe, I don't, I don't
know, I don't know. My [inaudible]

Det. Whittaker: Well, that's what I'm getting at. You got a lot of
health problems; you're taking a bunch of medication, you know;
there she is laying on the floor.

Jenkins: [inaudible]

Det. Whittaker: But it's possible after you took this medication
something could have happened. Of course your sub . . you
know, whether you, you're trying not to remember it or what
happened . . you know, we know it did, so you gotta get it right
in your head and tell me what exactly happened. You remember
parts of it at all, any of it?

Jenkins: No, I don't remember me leaving the room.

The interview continues for approximately another ten transcript pages,

and during that questioning Jenkins concedes, in effect, another four or five

times that "like you said, the medication and everything, it's, there's a

poss[ibility]." He reiterates each time, however, that, "I'm serious, I really don't

remember it."

Jenkins contends that the trial court abused its discretion in conjunction

with this post-polygraph evidence, 22 and he offers two reasons for doing so, one

based on a supposed constitutional violation and one based on the rule of

completeness. Ultimately, neither is compelling.

22 As the parties correctly note, "[t]he standard of review for a trial court's
evidentiary rulings is 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."' McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (Ky.
2013) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000) and
quoting Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999)).

51
 First, expanding upon the "dilemma" argument he made to the trial

court, Jenkins insists that introduction of the post-polygraph evidence put him

"in a position where he . . . had to give up his constitutional right to defend

himself [by explaining to the jury the context of his "fantasy" and "it's possible"

statements] in order [to exercise his constitutional right] not to be convicted

based on unreliable polygraph evidence." The trial court, thus, according to

Jenkins, forced him to surrender one constitutional right in order to-assert

another, contrary to the Supreme Court's statement in Simmons v. United

States, 390 U.S. 377, 394 (1968), that such a choice between constitutional

rights is "intolerable."

Even aside from his rather free-wheeling declaration of constitutional

rights, we think Jenkins has overstated his "dilemma." The Supreme Court

itself, after all, has qualified Simmons (which involved the prosecution's use at

trial of the defendant's testimony at a suppression hearing) by noting that

the Constitution does not forbid 'every government-imposed choice
in the criminal process that has the effect of discouraging the
exercise of constitutional rights.' . . . The 'threshold question is
whether compelling the election impairs to an appreciable extent
any of the policies behind the rights involved.'

Jenkins v. Anderson, 447 U.S. 231, 236 (1980) (quoting Chaffin v.

Stynchcombe, 412 U.S. 17, 30 (1973) other citations and internal quotation

marks omitted). The Court has also rejected the idea that interrogations

following a polygraph exam are inherently and unduly coercive. Wyrick v.

Fields, 459 U.S. 42, 49 (1982) (reversing an Eighth Circuit holding to that effect

52
and characterizing post-polygraph interviews as "reasonable police

questioning").

To be sure, we have long sought "to inoculate trial proceedings against

evidence of dubious scientific value" by disallowing evidence of polygraph

results or examinations. Rogers v. Commonwealth, 86 S.W.3d 29, 39 (Ky.

2002) (citations omitted). At the same time, however, we have, in accord with

Wyrick, rejected claims that polygraph exams, whether "real" or staged,

invalidate the confessions they induce or render the confession evidence

(cleansed of polygraph reference) inadmissible. Rogers, 86 S.W.3d at 37; Wise

v. Commonwealth, 422 S.W.3d 262 (Ky. 2013); Silverburg v. Commonwealth,

587 S.W.2d 241 (Ky. 1979). In Rogers, however, this Court recognized an

exception to the general rule against polygraph evidence for such evidence

introduced by a defendant trying to show that his or her confession had been

coerced. 86 S.W.3d at 40.

Undoubtedly, a defendant who confesses or who otherwise makes

inculpating admissions during a post-polygraph interview faces a hard choice

when it comes to deciding how best to confront that evidence, whether by

revealing the polygraph, as he may under Rogers, or by some other means.

But since, under Wyrick, there is nothing inherently improper about post-

polygraph interrogations, and since the confessing defendant who proceeds

under Rogers would likely be entitled to an admonition limiting how the

polygraph evidence could be used, the confessing defendant's supposed

"dilemma" strikes us as one of those tough but constitutionally permissible

53
choices acknowledged in Jenkins v. Anderson, rather than a constitutionally

"intolerable" one such as confronted the suppression-seeking defendant in

Simmons.

Our reasoning is as follows: Since the defendant is challenging a

presumptively valid interrogation procedure, placing the burden of going

forward on him is not unfair. Under Rogers, the defendant is free, if he wishes,

to introduce polygraph evidence, so his right to present a defense is respected.

And, although the point has not been raised and argued in this case in such a

way as to allow a definitive statement, it would seem that a defendant

mounting a Rogers defense would be entitled, upon request (KRE 105), to an

admonition limiting the jury's use of the (otherwise inadmissible) polygraph

evidence to the "coerced confession" issue, although the Commonwealth would

be free to introduce other polygraph evidence subject to the same limitations,

i.e., the door would be opened to polygraph evidence on the issue of a "coerced

confession." In that way the defendant's "right" not to be found guilty on the

basis of unreliable evidence would likewise be preserved. To the extent, then,

that Jenkins contends that Simmons precludes the Commonwealth's use at

trial of all post-polygraph confessions, we disagree.

B. The Limits the Trial Court Imposed on Jenkins's Use of Interview
Evidence Did Not Violate the Rule of Completeness.

That is not quite the end of Jenkins's constitutional claim, but to

understand that claim's final wrinkle it is necessary first to consider Jenkins's

alternative reason for objecting to the Commonwealth's use of excerpts from his

post-polygraph interview. The alternative, as noted above, is based on the so

54
called rule of completeness, a common-law rule now codified in KRE 106

("Remainder of or related writings or recorded statements.").

That rule provides that when one party introduces "a writing or recorded

statement or part thereof . . . an adverse party may require the introduction at

that time of any other part or any other writing or recorded statement which

ought in fairness to be considered contemporaneously with it." "KRE 106 is a

rule of admission, not exclusion," Soto v. Commonwealth, 139 S.W.3d 827, 865

(Ky. 2004), and at first glance its general terms ("any other part," "any other

writing or recorded statement") could suggest a broad rule. As Professor

Lawson has noted, however, "Rule 106 does not open the door to a routine use

of other parts of a writing or recordi ng (or related writing or recording), only to

parts (or related items) that should be produced "in fairness" to the opposing

party." Lawson, § 1.20[2][b].

Elaborating on this point, this Court has explained that

[t]he completeness doctrine is based upon the notion of fairness—
namely, whether the meaning of the included portion is altered by
the excluded portion. The objective of that doctrine is to prevent a
misleading impression as a result of an incomplete reproduction of
a statement. This does not mean that by introducing a portion of a
defendant's confession in which the defendant admits the
commission of the criminal offense, the Commonwealth opens the
door for the defendant to use the remainder of that out-of-court
statement for the purpose of asserting a defense without subjecting
it to cross-examination.

Schrimsher v. Commonwealth, 190 S.W.3d 318, 331 (Ky. 2006) (quoting (with

added emphasis) Gabow v. Commonwealth, 34 S.W.3d 63, 69 (Ky. 2000)).

The United States Supreme Court has said much the same regarding the

identical federal rule:
55
 [W]hen one party has made use of a portion of a document, such
that misunderstanding or distortion can be averted only through
presentation of another portion, the material required for
completeness is ipso facto relevant and therefore admissible under
Rules 401 and 402.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988).

It is not "misleading" for the purposes of KRE 106, we have held

numerous times, for the Commonwealth to introduce an incriminating portion

of a defendant's statement shorn of the defendant's additional statements

backtracking from, rationalizing, or otherwise attempting to explain or to lessen

the effect of his admission. See, e.g., Bond v. Commonwealth, 453 S.W.3d 729,

736 (Ky. 2015) (holding that, while the excluded portions of the murder

defendant's statement "may have given the jury a more complete description of

[the defendant's] relationship to [the victim]," the exclusion did not "alter the

meaning," for KRE 106 purposes, of the included confession); Commonwealth v.

Stone, 291 S.W.3d 696, 702 (Ky. 2009) (rejecting assault defendant's claim that

he should have been permitted to supplement the introduced portion of his

statement, in which he admitted stabbing the victim in self-defense, with "his

entire version of the events in its proper context").

In Sykes v. Commonwealth, 453 S.W.3d 722 (Ky. 2015), on the other

hand, we held that the trial court abused its discretion under KRE 106 when it

denied the defendant's request to correct a false impression that resulted from

the manner in which the Commonwealth redacted the defendant's statement to

investigators. The defendant had admitted that in the course of a restaurant

56
robbery he shot the restaurant's owner. At some point thereafter the detective

continued the interview as follows:

Detective: Well, the fortunate thing about this is that, as of now,
the Chinese guy [the owner/ shooting victim], he's still alive.

Sykes: Yes sir. So I'm being charged with attempted murder.

Detective: No. No, a shooting is a shooting. I don't think that it's
an attempted murder. Were you trying to kill him?

Sykes: No sir. I didn't even mean to shoot the guns. It was like
my reaction, how he was coming.

Among other crimes, the defendant was charged with attempted murder,

and at trial the Commonwealth presented to the jury, as evidence of Sykes's

intent to kill, the detective's and Sykes's first statements just quoted. Sykes

moved under Rule 106 to present the jury with the ensuing question and

answer, but the trial court denied the motion. We held that by themselves, the

first two statements distorted and gave a misleading impression of the

exchange, such that the trial court's ruling amounted to an abuse of discretion.

See also, Beech Aircraft, 488 U.S. at 153 (holding that the redacted version of a

letter presented to the jury gave a false impression of the letter's true tenor so

as to bring the pertinent federal rule (FRE 106) into play).

Jenkins contends that here, too, the Commonwealth's use of excerpts

from his post-polygraph statement created a false impression and thereby

implicated KRE 106. His contention is twofold. As previously noted, during

the Commonwealth's direct examination of Sergeant Whittaker the prosecutor

played for the jury two brief excerpts from Whittaker's post-polygraph interview

of Jenkins. In the first excerpt Jenkins admits having had "fantasies"
57
regarding Jane during her September 2005 visit to Jenkins's home, and in the

second he admits that under the influence of his medications he might

unconsciously have acted on those fantasy impulses and engaged in sex with

her.

As noted above, during his cross-examination of Sergeant Whittaker

Jenkins sought to supplement the "it's possible" portion of his post-polygraph

statement, as introduced by the Commonwealth, by having read to the jury the

portions of the interview immediately preceding and immediately succeeding

the already admitted portion. 23 The preceding portion, Jenkins argued, helped

clarify the context of his statements by showing that the interview was then

focused on the topic of medications, and the succeeding portion showed that

while Jenkins admitted, hypothetically, that medications might lead a person

to engage in sex unconsciously, he denied that that had happened to him. In

particular, he insisted that his response when asked if he remembered

anything, any part, of the alleged incident with Jane—"No. I don't remember

me leaving the room."—made clear that his supposed admission was actually a

denial.

The trial court granted Jenkins's request with respect to the lines

preceding the Commonwealth's excerpt, and defense counsel read those lines

to the jury. The trial court denied Jenkins's request with respect to the lines

23 We note again that in the transcript of the interview reproduced above, the

lines Jenkins moved to have introduced under KRE 106 have been underscored.

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after the Commonwealth's excerpt, however, and that denial, Jenkins asserts,

amounted to an abuse of the court's KRE 106 discretion. We disagree.

In our view, this is not a case, like Sykes, where the Commonwealth, by

carefully choosing a defendant's isolated remark, created the impression of an

admission when in context the remark gives a contrary, or at least a much

different impression. Here, the excerpt the Commonwealth introduced

accurately reflected Jenkins's limited admission that under the influence of

medications, such as those he was taking at the time of the alleged incident, a

person could possibly engage in sex without realizing it. The excerpt included

Jenkins's denial of any memory suggesting that that had happened to him.

The fact that Jenkins made other statements—such as his "I don't remember

leaving the room" remark—that give his admission a somewhat stronger

defense spin, does not render the Commonwealth's excerpt misleading or

distorting, it only makes this case like Bond and Stone. Like the defendants in

those cases, Jenkins "was free to testify at trial and fully present the facts as

he understood them to be." Stone, 291 S.W.3d at 703. KRE 106 did not

require more.

This brings us to the second part of Jenkins's KRE 106 argument, which

is also the last twist to his "unconstitutional dilemma" claim. According to

Jenkins, when he responded to Sergeant Whittaker's question about fantasies

and medications by saying, "It's possible," what he meant was not that it was

possible he had raped Jane under the influence of his medicines, but rather .

that it was possible his fantasies and medications somehow affected his

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reaction to the polygraph exam such that certain true answers had seemed

false to the machine. To clarify this meaning, Jenkins's argument runs, KRE

106 entitled him to reveal to the jury that the object of Sergeant Whittaker's

questioning was to discover what "had screwed up the exam," but that remedy,

the KRE 106 remedy, was inadequate. It was inadequate, Jenkins contends,

because once again it placed him in the unconstitutional bind of either

revealing the polygraph exam or allowing the Commonwealth to use a

misleading excerpt from the post-exam interview. To spare him from that

dilemma, Jenkins concludes, the trial court should have excluded (and should

exclude in the event of a retrial) any and all evidence of the interview.

Although there may be legal merit to Jenkins's claim that the

Commonwealth should not be permitted to use a misleading excerpt from a

writing or recording to pressure a defendant to reveal a polygraph exam, we

need not assess that merit here because the factual premise is missing. The

interview excerpts quoted above show, we believe, that while Sergeant

Whittaker did indeed confront Jenkins several times with the need to account

for the polygraph results and with the suggestion that subconscious deceit may

have been a factor, he never suggested that medication, in and of itself, could

compromise a polygraph. Jenkins, moreover, when asked if it was "possible,"

clearly understood that he was being asked, not whether his medication might

somehow trigger a polygraph machine, but whether someone under the

influence of certain medications might act on sexual impulses without being

conscious of it, the unconscious awareness of the act then causing the

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polygraph failure. If that were not Jenkins's understanding, he would not have

added that he had no recollection of acting that way.

Because it is clear that the "it's possible" interview excerpt introduced by

the Commonwealth did not misrepresent Jenkins's answer in the way he

contends, it is also clear that the admission of that excerpt did not confront

him with the untenable dilemma he claims. The trial court did not, in sum,

abuse its discretion by allowing the Commonwealth to introduce the excerpts

from Jenkins's statement.

CONCLUSION

In sum, we affirm the part of the trial court's Judgment convicting

Jenkins of rape in the first degree and sentencing him to twenty years'

imprisonment. There was sufficient evidence that Jenkins forcibly compelled

his step-granddaughter to engage in sexual intercourse to support the jury's

guilty verdict, and neither the trial court's refusal to instruct the jury on the

offense of sexual misconduct; the court's admission of very limited testimony

by the victim that Jenkins had sexually abused her in the past; nor the court's

admission of some portions of Jenkins's post-polygraph interview, but

exclusion of other portions constituted an error or an abuse of the court's

discretion. Although the evidence that Jenkins forcibly subjected his step-

granddaughter to oral/genital sodomy was also sufficient, we reverse the

conviction for that offense and its corresponding twenty-year sentence because

the pertinent jury instruction was "duplicitous," as recent cases have explained

that term, in violation of the Kentucky Constitution's unanimous verdict

61
requirement. We hereby remand the matter, accordingly, to the Ohio Circuit

Court for entry of an amended Judgment, and for additional proceedings

consistent with this Opinion.

All sitting. Minton, C.J.; Keller, Noble, and Wright, JJ., concur.

Cunningham, J., dissents by separate opinion in which Venters, J., joins.

Venters, J., dissents by separate opinion in which Cunningham, J., joins.

CUNNINGHAM, J., DISSENTING: A woman should be able to say no to

any sexual advance without resisting physically. That is the current law.

Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky. 2006). A woman should be able

to resist a sexual advance by simply saying no and the violator still be

accountable, even if force or threat of force is not used. According to the

majority, that is not the current law. Our holding today disputes that right

because of a case decided almost forty years ago.

Therefore, I respectfully dissent. I also join Justice Venters' dissent.

One of the proudest boasts I have of my brothers and sisters on this Court is

that we have maintained a steady respect for state decisions without being

shackled to past folly. Yet, today we perpetuate an aberration by once again

following the Cooper case. By doing so we hold that it is not a crime to have

sex against another's will, unless physical force or the threat of physical force

is used.

The evidence of physical force in this case was very weak. We have a

seventeen year old woman. She was in her room admitting she was sending a

"perverted" message to her boyfriend. She said she thought nothing was wrong

62
with her step-grandfather massaging her shoulders. Nor, did she see anything

wrong with him wanting to take her picture. She was knowledgeable for the

slang for oral sex. She testified that she was not threatened. She testified that

the Appellant never kept her from getting up and leaving the room. She

testified that he did not make her do it. She admitted that her grandmother

was in the next room where any protest could have easily been heard.

The majority relies upon her testimony that the Appellant "forcibly rolled

her over, removed her pajama pants, and then physically pushed aside her

several attempts to block him from sodomizing her." The jury is at liberty to

believe or disbelieve any or all of the complaining witness' testimony. It could

have easily not believed this aspect of her testimony, but also be fully

convinced that it was against her will.

The jury would have had good reason to believe that she did not consent,

but did not physically resist. The jury could have easily concluded that he did

not use force or the threat of force.

"I didn't want to, and I didn't feel comfortable to. It was just kind of . . . it

was always what happened. It was just something that I guess I was used to,

`cause that's always what happened.'"

It was "always what happened." We can only interpret that as there was

no need for either him to use force, or for her to resist. But, it was still against

her will. The jury could have reasonably found that it was without both force

and her consent. But they could not find him guilty of a lessor included crime

because the lessor included instruction was not given.

63
 In KRS 510.140, the crime of sexual misconduct reads:

(1) A person is guilty of sexual misconduct when he engages in sexual
intercourse or deviate sexual intercourse with another person without
the latter's consent.

(2) Sexual misconduct is a Class A misdemeanor.

The statute is simple, clear, and unequivocal. There is nothing in the

body of this statute which restricts it to juvenile participants. Our

interpretation of it, beginning with the Cooper case, relies on the Commentary

and ignores the glaring fallacy of that interpretation.

Like Justice Venters in his aptly written dissent, I take serious issue with

the interpretation that both the Cooper Court and the present majority give to

the Commentary to KRS 510.140.

First of all, it implicitly acknowledges this crime being a lesser offense to

more serious sexual crimes when it states as follows. "It provides a useful

plea-bargaining tool for the prosecutor in certain cases even though some

degree of forcible compulsion or incapacity to consent may be present." KRS

510.140.

Secondly, it states that the statute is "designed primarily to prohibit

nonconsensual sexual intercourse of deviate sexual intercourse" when the

participants are under certain ages. KRS 510.140 (emphasis added). This

"primary" purpose is not mutually exclusive of it being a lesser included of rape

in the first degree in all cases. Otherwise, the language of the plea-bargaining

utilization makes no sense.

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 It is clear in reading the Commentary closely that the Cooper decision is

a misconstruction of what the Commentary actually says.

As noted by the majority, there have been some subsequent cases

following Cooper. However, as this Court has wisely concluded in the past, "the

doctrine of stare decisis does not commit us to the sanctification of ancient

fallacy." Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984).

If that had been the intent of the legislature, it would have restricted it to

only application in cases where both parties involved are under age. Why

should it be a crime to commit a sexual act against a person under sixteen and

not with a thirty year old victim?

The majority also complains that to read KRS 510.140 as I read it "would

allow rape and sodomy to be treated as either a felony or misdemeanor at the

prosecutor's or the jury's discretion without legislative guidance as to the

distinction." The distinction is clear on its face. Sexual intercourse by forcible

compulsion is rape in the first degree; sexual intercourse without forcible

compulsion but against the will of the victim is sexual misconduct. I fail to see

the need for "legislative guidance." It's not unlike our assault statutes. A .

person is guilty of a serious felony (5 to 10 years) if that person intentionally

causes serious physical injury to another person. KRS 508.020. But the same

person is guilty only of a misdemeanor if the jury determines that he or she

intentionally inflicted only physical injury upon a person. KRS 508.030.

Prosecutor and jury discretion permeates our entire justice system.

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 In recent years we have changed our criminal law to provide the right to

a wife to say no to a husband's sexual advancement and mean it. We have

seen the alarming escalation of sexual assaults upon children and grand-

children which carry on even after the victims have reached sixteen years of

age. After the nightmarish repetition of such vile acts, the victims become

physically compliant, although not consensual, creating continual

opportunities for the offender to commit the acts without force or the threat of

force.

It's impossible to anticipate all the other diabolical designs where non-

consensual sex may invade the integrity of the victim's body without physical

force or threat of force.

These incredibly mean acts should be recognized as criminal under the

plain reading of KRS 510.140.

I've searched in vain to find any other state which gives such a clearly

stated statute such an off the page interpretation as we continue to do with

this opinion. All that I've found with similar, if not identical, sexual

proscription do not limit the crime to juveniles. See Johnson v. State of

Delaware, 929 A.2d 784 (De. 2007); Burton v. State of Delaware, 2000 WL

703810 (De. April 19, 2000).

Mark Twain reportedly said, "if the world ever comes to an end, I want to

be in Kentucky. Everything there happens 20 years after it does anywhere

else." It's an unfair and inaccurate slam at our beloved Commonwealth. But

here, it just seems to fit.

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 Venters, J., joins.

VENTERS, J., DISSENTING: I join Justice Cunningham's dissent, and to

his voice, I add my concern about the majority's distortion of a statute that is

crystal clear in its meaning and effect. Few if any statutes are as concise and

unambiguous as KRS 510.140, both as it stands alone and when read in

context with the whole of KRS Chapter 510. It makes perfect sense as written

and requires none of the excess verbiage grafted onto it by the majority

opinion. "When the statute is plain and unambiguous, the language of the

statute is to be given full effect as written . . . . This Court should not resort to

the task of deciphering legislative intent in order to interpret the language of a

statute which is abundantly clear." Mohammad v. Commonwealth, 202 S.W.3d

589, 590 (Ky. 2006) (citations omitted). The LRC Commentary is to be used "as

an aid in construing provisions" of the penal code, KRS 500.100, but the

majority arrogates the commentary to the dignity of the statute itself.

Moreover, it does so in derogation of the plain language of the statute,

apparently because it disagrees with the obvious meaning of the plain

language. Worse yet, the majority's interpretation of the commentary is just

plain wrong.

KRS Chapter 510 set forth a judiciously crafted schedule of graduated

offenses designed to punish a wide range of unacceptable acts of sexual

aggression. It comprehensively matches the severity of punishment for the

offender with the egregiousness of his conduct, scaling the offenses based upon

specific factors: the degree of force used by the perpetrator; the degree to which

67
the victim suffered physical injury; the unique vulnerability of the specific

classes of victims (for example, children and physically helpless or mentally

incapacitated adults); the age of the perpetrator in relation to the victim; and

the perpetrator's abuse of a position of authority or special trust relating to the

victim.

Within this cohesive and interlocking structure, the offenses of unlawful

sexual intercourse range from Rape in the First Degree for the perpetrator who

uses forcible compulsion to overpower the victim and causes the victim to suffer

serious physical injury (or whose victim is physically helpless or less than 12

years of age) under KRS 510.040, through Rape in the Second Degree under

KRS 510.050 and Rape in the Third Degree under KRS 510.060, to Sexual

Misconduct under KRS 510.140 for the perpetrator who, without forcible

compulsion, engages another person in an act of sexual intercourse or sodomy

without that person's consent. Each descending step from first degree rape to

sexual misconduct involves a progressively lesser sentence reflecting the

General Assembly's judgment of progressively less injurious or less egregious

conduct. Given the meticulous specificity employed by the legislature to

delineate each of the crimes established in Chapter 510, it is inconceivable that

such a critical limitation as the one that the majority reads into KRS 510.140

was simply left unstated, to be deciphered like a secret code hidden, not in the

language of the statue, but in commentary.

The plain language of KRS 510.140 as it is plainly written dovetails

precisely into the legislative scheme. It makes perfect sense within the

68
spectrum of crimes laid out by the legislature. It criminalizes the offensive act

of having sexual intercourse with one who had not consented even when the

perpetrator did not resort to forcible compulsion or physical injury, but has

instead simply acted without the victim's permission. The language of the

statute alone is plain and complete, enabling any reasonable person to discern

its meaning. Nevertheless, the majority strips the law of its simplicity and

shrouds it under a complex construction based upon a faulty interpretation of

the legislative commentary.

The commentary explains that the statute was "designed primarily" for

nonconsensual intercourse in the two specific situations identified by the

majority. However, "primarily" does not mean exclusively; the use of the word

"primarily" expressly signifies the existence of other, albeit secondary,

applications. One such application is identified in the very first paragraph of

the commentary relied upon by the majority: "[KRS 510.140] provides a useful

plea-bargaining tool . . . in certain cases even though some degree of forcible

compulsion or incapacity to consent may be present."

Those "certain cases" would be situations like the instant case where

fitting the perpetrator's conduct into the statutorily definition of "forcible

compulsion" is a close call at best, and one which the jury may not readily

accept. The majority's strained and complex construction restricts the

application of KRS 510.140 to situations involving minors and others incapable

of consent, thereby eliminating the offense of sexual misconduct for other

classes of victims in cases where a finding of "forcible compulsion" is far from

69
certain, but a lack of consent is clear. As Justice Cunningham explains in his

dissenting opinion, without the option provided by KRS 510.140, jurors (and

sometimes prosecutors and judges) in such cases who cannot conscientiously

regard the perpetrator's conduct as "forcible compulsion" will feel bound to

acquit, leaving the victim of unwelcome sexual aggression without justice.

Sexual misconduct is a crime created by the General Assembly as a

lesser-included crime within the spectrum of rape offenses applicable when the

victim did not consent to intercourse (or sodomy) and the proof of forcible

compulsion is less than compelling. KRS 510.140 expresses the General

Assembly's intent to criminalizing the conduct of those who, while not resorting

to "forcible compulsion," nonetheless act reprehensibly to deprive a victim of

her right to say "no" and the sexual dignity that goes with that right.

Despite the plain delineation of the legislature to the contrary, the

majority seems to believe that every act of nonconsensual sexual intercourse is

inherently an act of "forcible compulsion," thus eliminating the crime of sexual

misconduct in all but the few applications involving juvenile victims and

youthful perpetrators. By writing its belief into the law the majority casts itself

into the role of the legislature, putting words into the statute in derogation of

the legislature's preference and diminishing the prospects for justice for both

the perpetrator and the victim in close cases like this one. For these reasons, I

respectfully dissent and join the dissent of Justice Cunningham.

Cunningham, J., joins.

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COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Be shear, Attorney General of Kentucky

Perry Thomas Ryan
Assistant Attorney General

71