RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0764-MR
THOMAS J. MILLER APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE KENNETH HAROLD GOFF, II, JUDGE
ACTION NO. 11-CR-00050
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Thomas J. Miller brings this appeal from a May 27, 2020,
Opinion and Order of the Meade Circuit Court denying his Kentucky Rules of
Criminal Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment.
We vacate and remand.
The underlying relevant facts have been previously summarized by
the Kentucky Supreme Court in Miller’s direct appeal as follows:
Miller and Misty Walton were married for
approximately two and a half months in 1994. After their
divorce, Walton gave birth to their daughter, [K.M.]
[K.M.] lived with Walton for approximately three and a
half years then lived with Miller, his second wife, Rene,
and their children until 2004, when she returned to live
with Walton. From 2004 until 2007 [K.M.] did not have
any contact with Miller; however, in 2007, [K.M.] began
regular visitation with Miller, which she continued until
late 2009.
In mid–December 2009, [K.M.], who was then
fourteen years old, told her mother that Miller had
sexually abused her. Walton took [K.M.] to the sheriff’s
office and to the Kentucky State Police post where she
was interviewed by Det. Gabhart. [K.M.] told Det.
Gabhart that, when she was between the ages of five and
eight, she and Miller engaged in oral sexual activity a
number of times. Det. Gabhart then interviewed Miller,
who denied any sexual contact with [K.M.] Miller stated
that he believed [K.M.] had made the allegations because
he had told her to stop spending time with a boy she
liked. Miller also stated that he had told his son, who
went to the same school, to tell the boy to stay away from
[K.M.]
Approximately one month later, Walton advised
Det. Gabhart that another girl, [S.P.], stated that Miller
had also sexually abused her. Det. Gabhart interviewed
[S.P.] in early May 2010. [S.P.] told Det. Gabhart that,
sometime between Thanksgiving and Christmas of 2009,
she was at Miller’s house when he touched her breasts
twice and forced her to perform oral sex on him. Det.
Gabhart then re-interviewed Miller. Miller denied
touching [S.P.] and stated that he did not know why
[S.P.] would make such allegations. We note that, at the
time, Miller was being held in the Meade County jail.
In April 2011, a grand jury indicted Miller on one
count of first-degree sodomy involving a victim less than
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12 years of age for engaging in deviate sexual intercourse
with [K.M.] between 2000 and 2003. The grand jury also
indicted Miller on one count of sodomy for an act of
deviate sexual intercourse with [S.P.] in November or
December 2009.
At trial, Det. Gabhart testified generally about the
interviews he conducted with [K.M.], [S.P.], and Miller.
On cross-examination, Miller’s counsel asked Det.
Gabhart if he advised Miller of his rights before
conducting the second interview with him. Det. Gabhart
responded as follows: “He was in jail in Meade County,
yes sir.” Miller immediately moved for a mistrial. The
trial court, after conducting an in-chambers discussion
with counsel, denied that motion. The court did,
however, admonish the jury as follows: “The only thing
you are to consider in relationship to his [Det. Gabhart’s]
last answer is that he did in fact read Mr. Miller his
rights.”
At trial, [K.M.], who was 18 at the time, testified
that when she was three or four years of age she and
Miller were on the couch watching a movie when he
began to fondle her vagina and to rub her chest. She also
testified that he came into her room at night and fondled
her and that he fondled her in the bathtub. According to
[K.M.], Miller called her into his room numerous times
and they performed oral sex on each other while
watching pornographic videos. Furthermore, [K.M.]
testified that Miller attempted to perform anal sex with
her but stopped when he got feces on his penis and that
he tried to engage her in sexual activity outside but she
refused because she feared they would be seen.
....
[S.P.], who was extremely upset on the witness
stand, testified that she and her family were at the
Millers’ house to celebrate the birthday of [K.M.]’s
younger half-sister. When asked what happened that
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night, [S.P.] initially said that she could not remember
the details. The judge called a recess and took [S.P.] and
the parties into his chambers, where he advised [S.P.]
that she needed to try to calm down and to tell the truth
about what she remembered. [S.P.] regained some
control and, when she returned to the stand, she testified
about Miller forcing her to perform oral sex. On cross-
examination, Miller pointed out discrepancies between
[S.P.]’s testimony and her statement to Det. Gabhart,
noting in particular her failure to mention anything about
Miller touching her breasts.
Miller v. Commonwealth, Nos. 2014-SC-000046-MR and 2014-SC-000178-TG,
2015 WL 6560448, at *1-2 (Ky. Oct. 29, 2015) (footnotes omitted).
The jury ultimately convicted Miller upon both counts of sodomy. By
judgment entered January 9, 2014, Miller was sentenced to fifty-years’
imprisonment for the offense of first-degree sodomy as to K.M., and to twenty-
years’ imprisonment as for the offense of first-degree sodomy as to S.P., to run
consecutively for a total of seventy-years’ imprisonment. A direct appeal ensued
to the Kentucky Supreme Court, and the Supreme Court affirmed in Miller v.
Commonwealth, Nos. 2014-SC-000046-MR and 2014-SC-000178-TG, 2015 WL
6560448 (Ky. Oct. 29, 2015).
Miller then filed the instant RCr 11.42 motion alleging that trial
counsel and appellate counsel rendered ineffective assistance. The circuit court
denied the RCr 11.42 motion by Opinion and Order entered May 27, 2020. This
appeal follows.
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Miller contends that the circuit court erroneously denied his RCr
11.42 motion to vacate his sentence of imprisonment. Miller argues that trial
counsel rendered ineffective assistance by failing to object to the jury instruction
upon first-degree sodomy of K.M. as violative of the unanimity requirement of
Section 7 of the Kentucky Constitution. Miller points out that during trial, K.M.
testified to at least two separate instances of sodomy occurring between January 1,
2000, and December 21, 2003. Miller argues that trial counsel, however, failed to
object to the jury instruction upon first-degree sodomy even though it was violative
of the unanimity requirement. Miller also asserts that appellate counsel was
ineffective for failing to raise the issue of jury verdict unanimity in the direct
appeal to the Supreme Court (Appeal Nos. 2014-SC-000046-MR and 2014-SC-
000178-TG, 2015 WL 6560448 (Ky. Oct. 29, 2015)).
To prevail upon the claim of ineffective assistance of trial counsel,
defendant must demonstrate that trial counsel’s performance was deficient and that
such deficient performance was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984). Prejudice occurs when there is a reasonable probability that the
outcome of the trial would have been different. Id. As to ineffective assistance of
appellate counsel, defendant must, likewise, demonstrate that appellant counsel’s
performance was deficient and that such deficient performance was prejudicial.
Hollon v. Commonwealth, 334 S.W.3d 431, 436-37 (Ky. 2010). Prejudice occurs
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when there is a reasonable probability that the appeal would have succeeded. Id. at
431. And, an evidentiary hearing is required if there are allegations that cannot be
resolved upon the face of the record. Robbins v. Commonwealth, 365 S.W.3d 211,
213 (Ky. App. 2012).
The jury instruction at issue read:
INSTRUCTION NO. 1
SODOMY IN THE 1ST DEGREE, VICTIM LESS
THAN 12 YEARS OF AGE
You will find [Miller] guilty of Sodomy in the First
Degree, Victim Less than Twelve (12) Years of Age
under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
A. That in this county on, about, or between
January 1, 2000 and December 31, 2003, and before
the finding of the Indictment herein, [Miller]
engaged in deviate sexual intercourse with [K.M.];
AND
B. That [K.M.] was less than twelve (12) years of
age at the time of such deviate sexual intercourse.
September 12, 2003, Instructions to the Jury at 1-2.
In King v. Commonwealth, 554 S.W.3d 343, 352 (Ky. 2018), the
Supreme Court recognized that a jury instruction constitutes a violation of the
unanimity requirement:
[W]hen a single jury instruction, based on evidence of
two or more separate instances of criminal conduct,
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authorizes the jury to convict the defendant of only one
crime.
The King Court explained that such duplicitous jury instruction violated the
constitutional unanimity requirement as:
[E]ach charge of sexual abuse contained in the jury
instructions was based upon multiple, separate acts of
sexual abuse mentioned in the evidence, and so it cannot
be determined that all twelve jurors agreed upon the
criminal acts for which King was convicted.
King, 554 S.W.3d at 352.
In its May 27, 2020, Opinion and Order, the circuit court reasoned
that the jury instruction was not duplicitous as K.M.’s testimony as to separate acts
of sodomy was admissible evidence. The circuit court also believed “[h]ad the
Commonwealth indicted Miller on more than one count of Sodomy in the First
Degree, Victim Less than 12 Years of Age, it would have been required to include
specifics in the instructions; however, that is not the case here.” Opinion and
Order at 6.
The admissibility of evidence of multiple acts perpetrated by a
defendant under Kentucky Rules of Evidence (KRE) 404(b) and the unanimity
requirement as to a jury instruction requires the court to engage in separate and
distinct legal analysis. Id. Therefore, even if multiple acts evidence is admissible,
a jury instruction may still violate the unanimity requirement.
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Moreover, King recognized that there are two “variants” of unanimous
verdict issues. King, 554 S.W.3d at 351-52. The first variant exists where multiple
offenses are charged but the jury instructions fail to factually differentiate between
each offense. Id. at 351; Harp v. Commonwealth, 266 S.W.3d 813, 817-18 (Ky.
2008). The second variant exists where a jury instruction authorizes the jury to
convict upon one crime but there is evidence of at least two separate crimes. King,
554 S.W.3d at 352. The circuit court failed to recognize that this case potentially
involved the second variant and not the first. As such, the circuit court’s legal
reasoning was flawed.
For this reason, we vacate and remand for the circuit court to
reconsider Miller’s allegations of ineffective assistance of trial counsel and
appellate counsel based upon the jury verdict unanimity issue. In doing so, the
circuit court shall follow the dictates of King, 554 S.W.3d 343, and of this Opinion.
For the foregoing reasons, the Opinion and Order of the Meade
Circuit Court is vacated and remanded for proceedings consistent with this
Opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Javier Esteve Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy Frankfort, Kentucky
Frankfort, Kentucky
Matthew R. Krygiel
ORAL ARGUMENT FOR Assistant Attorney General
APPELLANT: Frankfort, Kentucky
Dennis J. Burke ORAL ARGUMENT FOR
Assistant Public Advocate APPELLEE:
Department of Public Advocacy
Frankfort, Kentucky Bryan Morrow
Assistant Attorney General
Frankfort, Kentucky
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