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LLOYD BANDY. APPELLANT
ON APPEAL FROM BUTLER CIRCUIT COURT
v. HONORABLE RONNIE C. DORTCH, JUDGE
. NO; 15-CR-00123
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COMMONWEALTH OF KENTUCKY .APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit court jury convicted Lloyd Bandy of three counts of first-degree.
sodomy, five counts of first-degree sexual abuse, and one count of attempted
first-degree rape. Bandy now .appeals the resulting judgment as a matter of
right. I He argues on that the trial court erred ·by failing (1) to grant his motions
for a directed verdict and (2) to read all the jury instructions to the jury.
Finding no merit to either issue, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lloyd Bandy was an inmate at the Kentucky State Penitentiary, ·serving a
\ tert-year sente.nce for four counts of Portraying a Minor in a Sexual
·Performa_nce and Voyeurism. Bandy wrote several letters from prison '
I Ky. Const. § l 10(2)fb).
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confessing his guilt to the crimes charged in the present ~ase-first-degre.e
sodomy, first-degree sexual abuse, and first-_degree rape. Bandy claims he
wrote these letters only under pressure from another inmate and the alleged
victim. The letters found their way into the hands of the Kentucky State Police,
. .
who began investigating.
During the investigation, Bandy again confessed to the crimes. Because
of the police investigation, a grand jury indicted Bandy on muitiple counts of
first-degree sodomy, first-degree sexual abuse, and first-degree rape.
In addition to presenting the confession letters themselves, the
Commonwealth presented _testimony at trial from the vict~m corroborating
Bandy's c~nfess_io~ a:Q.d from the officer responsible for the ~nvestigation.
Regarding the first issue on appeal, Bandy alleges that the trial court
should have granted his motions for a directed verdict at the close of the.
Commonwealth's case. Bandy made two motions for directed verdict at that
time. His first motion for directed verdict included the following grounds:
It's my position that if they [the Commonwealth] can't narrow a
time down more than two years that's not sufficient to go to the
jury on. The original indictment stated [the crime] happened
between '94 and 2000. The-Commonwealth has moved to
amend ... to say [the crime] happened between '96 and '98. My
position is that if you can't narrow it down more than that it's
insufficient to go to a jury.
The Commonwealth does not dispute the preservation of this issue as to
Bandy's first motion. Bandy's second motion for directed verdict induded the
following grounds:
... Criminal Rufo 9.6 allows that if there is no evidence but a
confession that's not sufficient to go forward. My motion for a
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directed verdict is along those lines~because absent his confession
the victim in this case would have never been interviewed and
there never would have been any other evidence.
The trial court denied both motions for directed verdict. The parties dispute the
preservation of the issue as to Bandy's second motion.
Bandy testified in his own defense and countered the Commonwealth's
evidence by stating that he only confessed because he was coerced by another
inmate and by the victim herself. Bandy also elicited testimony from the victim
regarding a potential relationship between the victim's mother and the inmate
who allegedly coerced Bandy to confess.
Defense counsel renewed the motiQns for directed verdict at the close of
all evidence, and the trial court denied both motions.
Regarding the second issue·, Bandy alleges that the trial court erred when
it failed to read all the jury instructions t6 the jury. Both parties agree that the
trial cnurt did not read every jury instruction verbatim and that this issue is
unpreserved.
The jury found Bandy guilty of three counts of first-degree sodomy, five
counts of first-degree sexual abuse, and one count of attempted first-degree
rape. The jury recommended a life sentence on the sodomy counts, ten years
on the sexual-abuse counts, and twenty years on the attempted rape, which
the trial court followed, sentencing accordingly. This appeal followed.
3
II. ANALYSIS
A. Standard of Review
The standard of review for each issue depends on the preservation of
them. The Commonwealth does not dispute the preservation of Bandy's first
motio:r:i for a directed verdict. "On appellate review, the test of a directed verdict
is, if under the evidence as a whole,. it would be ~learly unreasonable for a jury
)
to find guilt, only then the defendant is entitled to a directed verdict of
acquittal. "2
The parties dispute the preservation of Bandy's second motion for a
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directed verdict. If the issue is preserved, this Court will apply the Benham
standard. If the issue is unpreservedr this Court will only reverse the trial
court's ruling if affirmi.ng would result in palpable error.3 Palpable error
requires a showing that the alleged error affected the "substantial rights" of a
defendant, when~ relief may be granted "upon a determinatjon that manifest
injustite has resulted from the error." 4 To find that "manifest injustice has
resulted from the error," this Court must conclude that the error so seriously
affected the fairness, integrity, or public reputation of the proceeding as to b~
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"shocking or jurisprudentially intolerable. "5
2 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v.
Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d
530,533(Ky. 1977)).
3 Kentucky Rule.of Criminal Procedur~ (RCr) 10.26.
4 Id.
s Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky:2006).
4
The Commonwealth argues that Bandy's second motion is not specific
epough to preserve this issue. We think Bandy's motion is specific enough to
have alerted the trial court to the issue raised and thus specific enough to have
preserved the issue for appellate review. Regardless of which standard is
applied, however, the conclusion is the same, as we will show.
)
Both parties ~gree that Bandy did not pres·erve the jury .instruction issue.
Thus, the standard of review for this issue is palpable error.
B. Handy's Motions for Directed Verdict.
/
1. Motion Alleging_ Unspecified Time Period.
On the charges of first-degree sodomy, first-degree sexual abuse, and
attempted first-degree rape, a consistent element in these offenses is that the
victim be less than 12-years-old.6 "In a felony case, the failure to prove the
specific date of the offense is·of no consequence unless time is a material
ingredient of the offense."7 "[A] child victim's inabilitY to give specific times and
dates in a child sex abuse case does not render the evidence insufficient to
support a conviction as long as the date of the offense is not a necessary
element." 8 According to these rules, the prosecution must prove beyond a
. reasonable doubt that the victim was less than twelve:..years-old at the time of
the alleged crimes bu:t does not have to prove a specific date of the events.
6 KRS 510.070(1)(b); KRS 510.040(1)(b); KRS 510. l 10(b)(2):
1 Stringer v. Commonwealth, 956 S.W.2d 883, 886 (Ky. 1997). (citing Peyton v.
Commonwealth, 157 S.W.2d 106 (Ky. 1941)).
s Dunn v. Commonwealth, 360 S.W.3d 751, 761 (Ky. 2012) (citing Stringe·r, 956 S.W.2d
at 885-86).
5
Bandy essentially asks this Court to require·more certainty in the time-
frame evidence presented by the Commonwealth as to when the crimes
occurred. No case in Kentucky has held to require exact specificity in
pinpointing the dates of the alleged crime; in fact, Kentucky cases state the
opposite.9 "In each of those cases, the victims described a distinct factual basis
for each separate charge so that the jury could de~ermine in each instance
whether a separate criminal offense had been committed."10 "Discrepancies in
the victim's testi.mony are matters of credibility going to the weight to be given
'· I
by the jury to the child's testimony." 11
Taking these rules together; it is the jury's prerogative to decide whether
.,
a more certain time period is required for a conviction. Our job is to decide "if
under the evidence as a whole, it would be clearly unreasonable· for a jury to
find guilt, only then the defendant is· entitled to a directed verdict of
acquittal." 12
The Commonwealth's evidence included the victim's testimony as to
Bandy's alleged crimes, confession letters written by Bandy, and testimony by
· 9Farler v. Commonwealth, 880 S.W.882, 886 (Ky. App. 1994) ("it was not necessary
that [juvenile .victim] give specific dates that the offenses occurred"); Garrett v.
Commonwealth, 48 S.W.3d 6, 9 (Ky. 2001) ("It would be wholly unreasonable to expect
a child of such
. tender years
. to remember specific dates, especially given the long .time
period over which the abuse occurred."); Miller v. Commonwealth, 77 S.W.3d 566, 576
(Ky. 2002) ("[P]roof of the precise dates ·on which the offenses were committed is not
required of a child sexual abuse victim where the evidence is 'ample to separately
identify the various offenses charged. m) (quoting Hampton v. Commonwealth, 666
S.W.2d 737 (Ky. 1984).
10 Miller, 77 S.W.3d at 576.
11 Garrett, 48 S.W.3d at 10.
12 Benham, 816 S.W.2d at 187 (citing Sawhill, 660 S.W.2d at 5) (quoting Trowel, 550
S.W.2d at 533). .
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an officer who interviewed Bandy during which Bandy confessed to the crimes
again, all confirming a time period when the victim was under the age of
twelve. Bandy's evidence included Bandy's testimony denying the alleged
. crimes, wit5 explanations. Consjderirtg this evidence, having heard both sides,
it would not be unreasonable for a jury to find that the victim was under the
age of twelve during the commission of the alleged crimes, and thus we affirm
the trial court's decision to deny Bandy~s first motion for a· directed verdict.
2. Motion Alleging Insufficient Evidence.
A question exists as to the correct applicable standard of review for this
. ) . .
motion. But under either standard, Bandy's appeal fails. TJ;le alleged
preservation issue notwithstanding, Bandy argues that the trial court should
have generally granted Bandy's motion for a directed verdict, in addition to
specifically granting Bandy's motion for a directed verdict regarding jury
instructions six, ten, and eleven. Bandy's entire argument ·on this issue rests
on the Commonwealth's alleged violation of RCr 9.60.
As RCr 9.60 states, "A confession of a defendant, unless made in open
court, will not warrant a conviction unless accompanied by other proof that
such an offense was committed."13 "Criminal Rule 9.60 precludes the
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conviction ofa defendant solely on the basis of his own uncorroborated out-of-
court statements. But the r:equirement of corroboration relates only to proof
that a crime ~as ·committed, not to whether the defendant committed it." 14
'
13 RCr 9.60.
14 Lofthouse v. Commonwealth, 13 S.W.3d 236, 242 (Ky. 2000) (citing Commonwealth
- v. Karnes, 849 S.W.2d 539 (Ky. 1993)).
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"Once. the corpus delictilS has been established, the fact that the defendant
committed the crime can be proven entirely by his own confession."16 "... [T]he /
corroborative evidence need not be such that, independent of the confession,
would prove the corpus delicti beyond a reasonable doubt; and proof of the
corpus delicti may be established by considering the confession as well as the
corroborating evidence." 17 "[EJven if the circumstantial evidence in a case
standing alone would not suffice to prove guilt beyond a reasonable doubt, it
can suffice to corroborate an out-of-court confession." 18
In this case, the Commonwealth did establish the corpus delicti through
the victim's testimony and through the official investigation. Coupled with this
corroborating evidence, Bandy's confessions confirmed that he, in fact,
·committed the crime. So because the Commonwealth did meet RCr 9.60 and
Lofthouse's sta9dards, no trial court error can be found.
Specifically, regarding jury instructions six, ten, and eleven, Bandy
additionally argues that the victim's testimony was not specific enough for a
reasonable juror to conclude Bandy was guilty of the crimes specified in these
instructions, which include first-degree sexual abuse of a victim under the age
of twelve aIJ.d first-degree rape of a victim under the age of twelve. This·
argument is without merit because the victim testified in detail to countless
1s ~The fact o_! a crime having been actually committed." Corpus Delicti, Black's Law
Dictionary (6th ed. 1994).
16 Id. (citing Dolan v. Commonwealth; 468 S.W.2d 277 (Ky. 1971)).
11 Id. (citing Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997)).
1s W.D.B. v. Commonwealth, 246 S.W.3d 448, 455 (Ky. 2007) (citing Blades, 957
S.W.2d at 250).
8
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instances of abuse, supported by the .official investigation. This evidence.
corroborates Bandy's confessions. Again, because the Commonwealth did meet
RCr.9.60 and Lofthouse's standards, no trial·court error can be found.
We affirm the trial court's, denial of Bandy's second motion for directed
verdict.
C. Failure to. Fully R~ad Jury Instructions
Kentucky Rule of Criminal Procedure 9.54(1) states:
It shall be the duty of the court to instruct the jury in writing on~
the law of the case, which instructions shall be read to the jury
. prior to the closing summations of counsel. These r~quirements
may not be waived except by agreement of both the defense an,d
the prosecution.19 ·
Kentucky Rule of Criminal Procedure 9.54(2) states:
No party .may assign as error the giving or the failure to give an
instruction unless the party's position has been fai:ily and
adequately presented to the trial judge by an offered instruction or
by motion, or unless the party makes objection before the court
instructs the jury, stating specifically the matter to which the party
· objects and the ground
I
or grounds
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of the objection.2°
"Failure to comply with subsection (2) of RCr 9.54 J::t.as been consistently held to
prohibit review of alleged error ir:i instructions because of the failure to properly
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preserve
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the claimed error. "21
Simply stated, Bandy did not comply withRCr 9.54(2). Bandy never
made an opjection to the content of the instructions, nor did he object to the
trial court's method of\reading the instructions to the jury. Stated differently,
19 RCr 9 ..54(1).
20 RCr 9.54(2). .
21 Gibbs v. Commonwealth, 208 S.W.3d 848,.853 (Ky. 2006), overruled on other
grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010).
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Bandy n·ever fairly ·and adequately presented this alleged failure to the trial
court by an offered instruction or by motion, nor did he make an objection
before the court instructed the jury. RCr 9.54(2) statutorily mandates the
denial of review of an issue that does not comply with its terms. So, we affirm
the trial court on this issue.
III. CONCLUSION.
· Holding that no error occurred both in the denial of Bandy's motions for
directed verdict and in the jury instruction reading, we affirm the judgment.
Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, Venters and Wright, JJ.,
I
sitting. Minton~· C.J.: Cunningham, Keller, VanMeter, Venters arid Wright, JJ.,
concur. Hughes, J., concurs in result only.
COUNSEL FOR APPELLANT:
John Gerhart Landon
Assistant Eublic Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
10.