RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1574-DG
C.S., A CHILD UNDER EIGHTEEN APPELLANT
ON REVIEW FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 19-XX-00005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: We granted discretionary review of this case in which the
Kenton Circuit Court vacated an order of the Kenton District Court. The district
court had dismissed the case. The circuit court reversed that dismissal and
remanded the case to the district court for additional proceedings. After our
review, we affirm the circuit court.
This case involved the prosecution of a juvenile for separate charges
of sodomy in the first degree and sodomy in the third degree. The Kenton Circuit
Court’s order of September 24, 2019, vacating and remanding, summarizes the
background of this case as follows:
C.S. was initially charged with Sodomy in the First
Degree. The event leading to this charge was an incident
between defendant, who was thirteen at the time, and a
neighbor, who was fourteen at the time: the neighbor
reportedly has a diagnosis of moderate to severe autism
but was found competent to testify by the District Court.
Defendant was convicted; that judgment was vacated on
appeal in another division of the Kenton Circuit Court in
case number 18-XX-002 based upon the
Commonwealth’s concession that the evidence was
insufficient to establish forcible compulsion. The
Commonwealth then proceeded to charge defendant with
Sodomy in the Third Degree based on the same incident.
[A charge under similar facts occurring after July 14,
2018 would be Sodomy in the Second Degree under KRS
§510.080(1)(b), not Third Degree, per an amendment to
the statutes. Kentucky Acts chapter 109 §3.] The District
Court, noting that the only potentially applicable section
of KRS §510.090 as it was in effect at the relevant time
was that involving a victim who is incapable to consent
due to their status as an individual with an intellectual
disability, granted a defense motion to dismiss, stating
that she had already found competency.
(Brackets in original.)
The district court’s handwritten order entered on January 16, 2019,
states as follows: “Δ motion – [word scratched out] sustained jeopardy attaches.
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sodomy in the third degree requires incapable of consent victim found competent
charge dismissed.”
By order entered on September 24, 2019, the Kenton Circuit Court
vacated the district court’s order and remanded for further proceedings. The circuit
court explained that different standards govern the determination of competency to
testify under KRE1 601(b) and an “individual with an intellectual disability” under
KRS2 510.080(4) as defined in KRS Chapter 202B:
Both parties agree that these are different standards and
the court’s determination that a potential witness is
competent to testify does not necessarily preclude a
finding that they are an individual with an intellectual
disability. . . . As the standards are different, this court
does not find sufficient evidence in the record to support
the finding of the trial court that the witness did not have
an “intellectual disability,” a finding that affects the
element of capacity to consent.
The circuit court noted that the defendant’s motion to dismiss in the
district court also raised issues of double jeopardy and vindictive prosecution. The
circuit court concluded that because the
Third Degree [Sodomy] charge required proof of
intellectual disability which the First Degree charge had
not, it was not a lesser included offense and is not strictly
barred by the double jeopardy clause of either the Fifth
Amendment to the United States Constitution or Section
Thirteen of the Kentucky Constitution.
1
Kentucky Rules of Evidence.
2
Kentucky Revised Statutes.
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Furthermore, the circuit court concluded that:
Although defendant complains . . . that in the first trial
the Commonwealth did not raise present [sic] the issue of
capacity to consent and specifically stated in closing
argument that it was not pursuing a charge of Sodomy in
the Third Degree as a lesser included offense, the later
filing of the complaint of Third Degree may have been
bad form but does not meet the criteria for prosecutorial
vindictiveness.
On October 18, 2019, C.S. filed a Motion for Discretionary Review,
which this Court granted by order of February 14, 2020.
C.S. first contends that the circuit court’s interpretation of the law
allows the Commonwealth “two bites at the apple.” C.S. relies on KRS 505.040(1)
and argues that successive prosecutions based upon the same course of conduct --
or on evidence that the Commonwealth could have presented but chose not to
present -- are prohibited by law.
KRS 505.040 is entitled “Effects of former prosecution for different
offenses[.]” Its subsection (1) provides as follows:
Although a prosecution is for a violation of a different
statutory provision from a former prosecution or for a
violation of the same provision but based on different
facts, it is barred by the former prosecution under the
following circumstances:
(1) The former prosecution resulted in an
acquittal, a conviction which has not
subsequently been set aside, or a determination
that there was insufficient evidence to warrant
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a conviction, and the subsequent prosecution is
for:
(a) An offense of which the defendant could
have been convicted at the first prosecution; or
(b) An offense involving the same conduct as
the first prosecution, unless each prosecution
requires proof of a fact not required in the
other prosecution or unless the offense was not
consummated when the former prosecution
began[.]
The Commonwealth concedes that the previously vacated
adjudication of sodomy in the first degree constitutes an acquittal on that charge
from which C.S. is protected from retrial. (Appellee’s Brief, p. 3.) However, C.S.
argues that a subsequent prosecution on a charge of sodomy in the third degree is
also barred because it is a lesser-included offense. He contends that even if it is
not a lesser-included offense, a subsequent prosecution for sodomy in the third
degree is barred because it constitutes “an offense of which the defendant could
have been convicted at the first prosecution.”
C.S. also argues that the circuit court erred by holding that due to
different standards, “there was not ‘sufficient evidence in the record’ to support the
trial court’s finding that the victim did not have an ‘intellectual disability.’” We
address that argument first.
The version of KRS 510.090(1)(a) then in effect provided that:
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A person is guilty of sodomy in the third degree when:
He or she engages in deviate sexual intercourse with
another person who is incapable of consent because he or
she is an individual with an intellectual disability[.]3
KRS 510.010(4) defines an “individual with an intellectual disability” as “a person
with significantly subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during the developmental period,
as defined in KRS Chapter 202B[.]”
The district court’s brief, handwritten order entered on January 16,
2019, states that “Sodomy 3rd requires incapable of consent[;] victim found
competent.” It appears that the district court erroneously equated the standard of
capacity to consent with competency to testify. We agree with the Commonwealth
that competency to testify is not dispositive of whether or not the victim has an
“intellectual disability” under KRS 510.010(4). We find no error in the circuit
court order vacating on this basis.
Next, we address C.S.’s argument that sodomy in the third degree is a
lesser-included offense of sodomy in the first degree. “A lesser offense may be
treated as a lesser-included offense if it does not require proof of a fact not required
3
The statute was amended effective July 14, 2018. As the circuit court correctly noted, a charge
under similar facts occurring after that date would be sodomy in the second degree under KRS
510.080(1)(b).
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to prove the greater offense; if it does, the offense is simply a separate, distinct
offense.” Chames v. Commonwealth, 405 S.W.3d 519, 525 (Ky. App. 2012).
A defendant is put in double jeopardy when he is
convicted of two crimes with identical elements, or
where one is simply a lesser-included offense of the
other. In such a case, the defendant has only actually
committed one crime and can only endure one
conviction. “[T]he test to be applied to determine
whether there are two offenses or only one is whether
each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299,
304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The same test is
applied under Kentucky law as well. See Commonwealth
v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) (“Thus, we
return to the Blockburger analysis.”).
Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011).
As the Commonwealth notes, sodomy in the first degree requires
proof of forcible compulsion4 whereas sodomy in the third degree does not.
Sodomy in the third degree requires proof that the victim is incapable of consent
because he or she is an individual with an intellectual disability as defined in KRS
510.010(4); sodomy in the first degree does not. We agree with the circuit court
that sodomy in the third degree is not, therefore, a lesser-included offense of
sodomy in the first degree and is not barred by the double jeopardy clause of either
4
KRS 510.070(1) provides in relevant part that “[a] person is guilty of sodomy in the first
degree when: (a) He engages in deviate sexual intercourse with another person by forcible
compulsion[.]”
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the Fifth Amendment to the United States Constitution or Section Thirteen of the
Kentucky Constitution because each offense requires proof of different facts.
Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014), upon which C.S. relies, is
distinguishable on its facts. See Chames, 405 S.W.3d 519 (appellant not entitled to
jury instruction on second-degree sexual abuse as lesser-included offense of first-
degree sexual abuse because second-degree sexual abuse requires additional facts
to prove victim incapable of consent due to being intellectually disabled).
C.S. also argues that a subsequent prosecution for sodomy in the third
degree is barred under KRS 505.040(1)(a) because it is “‘[a]n offense of which the
defendant could have been convicted at the first prosecution,’ even if it is not
found to be a lesser-included offense.” We do not agree.
Another panel of this Court recently rejected a similar argument in
Steelman v. Commonwealth, No. 2017-CA-001121-MR, 2018 WL 4941736 (Ky.
App. Oct. 12, 2018). In Steelman, the defendant argued that the Commonwealth
was barred from prosecuting him under KRS 505.040(1)(a) for criminal possession
of a forged instrument because he had previously pled guilty to an amended charge
of not possessing his operator’s license based on the same underlying facts which
arose out of a stop for a minor traffic violation on February 10, 2016. Steelman
claimed that the Commonwealth’s failure to charge him simultaneously with all
crimes associated with all the events of February 10, 2016, was fatal.
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Alternatively, he asserted that collateral estoppel provisions of KRS 505.040(2)
barred the subsequent prosecution. This Court disagreed, explaining that these
arguments had been addressed in Commonwealth v. Barnhill, 552 S.W.2d 241 (Ky.
App. 1977).
In Barnhill, the defendant was involved in automobile accident in
which his passenger was killed. He was charged with operating a motor vehicle
under the influence. The next day, he entered a guilty plea and paid a fine in court.
Two weeks later, a grand jury indicted him for reckless homicide. The trial court
granted the defendant’s motion to dismiss the indictment on grounds of former
(i.e., double) jeopardy. The Commonwealth appealed. This Court reversed the
dismissal of the indictment, reasoning as follows:
Although neither the appellant nor the appellee has cited
KRS 505.040 we believe it is controlling here. Section
(1)(b) of that statute provides that a later prosecution is
barred by a former prosecution when the second
prosecution is for “(a)n offense involving the same
conduct as the first prosecution, unless each prosecution
requires proof of a fact not required in the other
prosecution . . . .”
Barnhill, 552 S.W.2d at 242. The Court explained that the offenses of operating a
motor vehicle while under the influence and reckless homicide each required proof
of fact(s) that the other did not. The Barnhill Court relied on Burnett v.
Commonwealth, 284 S.W.2d 654, 656 (Ky. 1955), which held that:
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[T]he rule against splitting an act into separate offenses
does not apply where a single act is common to two
offenses but each contains additional elements not
common to the other, nor if different parts of one
continuous transaction or series of acts are separate
offenses and can be separately proved.
In Barnhill, the Court concluded that the offenses involved “are distinct and
separate offenses growing out of the same conduct. Neither is an offense included
within the other. Consequently, the prosecution of the appellee on the second
charge does not violate Section 13 of our constitution.” 552 S.W.2d at 242
(citation omitted).
Therefore, C.S. cannot avail himself of the defense of double
jeopardy. We find no error on the part of the circuit court as to this issue.
C.S.’s remaining argument is that the Commonwealth’s conduct is
more than “bad form.” He claims that it constitutes vindictive prosecution and that
it should be prohibited as such. “Prosecutorial vindictiveness can manifest itself in
two ways: actual vindictiveness and presumed vindictiveness based upon the facts
and circumstances of the case.” Dickerson v. Commonwealth, 278 S.W.3d 145,
152 (Ky. 2009). C.S. contends that the circumstances of this case strongly support
a presumption of vindictiveness. However, the Commonwealth argues that any
presumption of vindictiveness is rebutted by its change of strategy or perspective
in good faith based on the discrepancy between the victim’s testimony at trial
versus the contradictory content of his pre-trial interview.
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The circuit court concluded as follows:
“Generally, a potentially vindictive superseding
indictment must add additional charges or substitute
more severe charges based on the same conduct charged
less heavily in the first indictment.” Yates v.
Commonwealth, 539 S.W.3d 654, 659 (Ky. 2018).
Although defendant complains of the fact that in the first
trial the Commonwealth did not present raise [sic] the
issue of capacity to consent and specifically stated in
closing argument that it was not pursuing a charge of
Sodomy in the Third Degree as a lesser included offense,
the later filing of the complaint of Third Degree may
have been bad form but does not meet the criteria for
prosecutorial vindictiveness.
We cannot say the circuit court abused its appellate discretion5 in
concluding that the Commonwealth’s later filing of a complaint on the charge of
sodomy in the third degree did not meet the criteria for prosecutorial vindictiveness
under the facts of this case.
We AFFIRM the order of the Kenton Circuit Court, which correctly
vacated and remanded this case to the Kenton District Court for further
proceedings.
ALL CONCUR.
5
In Lee v. Commonwealth, No. 2005-SC-000500-MR, 2006 WL 3386644, at *5 n.13 (Ky. Nov.
22, 2006), our Supreme Court explained that it knew of no Kentucky decision regarding the
standard of review of trial court rulings on motions to dismiss indictments for prosecutorial
vindictiveness, but that “rulings on motions to dismiss indictments are generally subject to abuse
of discretion standard of review with factual findings subject to clearly erroneous standard.”
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
John Wampler Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christopher S. Nordloh
Drew C. Harris
Special Assistant Attorneys General
Covington, Kentucky
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