dissenting.
I respectfully dissent because the majority’s construction of KRS 530.064 violates two fundamental constitutional principles: (1) a criminal defendant’s right to sufficient notice of the charges against him or her, and (2) the requirement that the government must prove every element of the offense charged. These violations require reversal of this case. Besides these constitutional violations, an additional reversible error occurred when the Commonwealth’s Attorney used an unauthorized, extrajudicial subpoena to compel trial witnesses to give pre-trial statements.
I. Notice of Charges
On August 30, 2001, Hillard was indicted for the offenses of use of a minor in a sexual performance, unlawful transaction with a minor in the first degree, and three counts of unlawful transaction with a minor in the third degree. Later, he was convicted and sentenced. He appealed and the majority has reached a decision herein. But it is this decision — not the indictment, not the proof at trial, and not the jury instructions — that gives Hillard his first notice of the specific charges for which he now stands convicted. This is the untenable result reached by the majority today.
Hillard was convicted of first-degree unlawful transaction with a minor in connection with paying A.W. to “fist” him. KRS 530.064, which sets forth the elements of unlawful transaction with a minor in the first degree, provides in relevant part that “[a] person is guilty of unlawful transaction with a minor in the first degree when he knowingly induces, assists, or causes a minor to engage in illegal sexual activity _” As used in the statute, “illegal sexual activity” refers to sexual activity prohibited elsewhere in the penal code. Young v. Commonwealth, 968 S.W.2d 670 (Ky.1998). Hillard’s indictment failed to specify which statutorily prohibited sexual activity he was accused of inducing A.W. to engage in. Failure to specify the underlying illegal sexual offense renders the indictment and the conviction upon which it is based constitutionally infirm. This infirmity is evidenced by the arguments on appeal and the majority’s rejection of such.
Hillard contends that the jury’s findings do not support the conclusion that he committed any sexual act prohibited by statute. The Commonwealth responds that the underlying illegal sexual offense was prostitution. The majority disagrees with both parties. While it concludes that the definition of prostitution does not fit, the majority does not reverse Hillard’s conviction. Rather, the majority formulates its own theory of the case and retroactively applies this new theory to a trial that ended long ago. After carefully sifting through the evidence adduced at trial, the majority concludes that the evidence supports a finding that Hillard was guilty of third-degree sexual abuse. Of course, Hil-lard was never charged with the underlying offense of third-degree sexual abuse. And, the elements of third-degree sexual abuse were never submitted to the jury. Nonetheless, since the definition fits, the majority concludes that Hillard’s conviction for unlawful transaction with a minor in the first degree was supported by the evidence at trial.
*768The absurdity of the majority’s analysis can be further illustrated by a very slight alteration. Suppose the General Assembly enacted a statute that made “engaging in illegal sexual activity” a felony offense. Further, suppose the Commonwealth indicted someone for violation of this statute. After indictment, a trial was had, evidence adduced, a conviction obtained, a sentence rendered, and a subsequent appeal taken. In accordance with today’s opinion, our task on appeal would be to look at the evidence adduced at trial, and then determine whether the jury’s factual findings fit all of the elements of any sexual act banned by the statute. For all intents and purposes, the majority opinion does just that. This is justice in reverse. And it’s a serious violation of Hillard’s constitutional rights.
Hillard had the basic and fundamental constitutional right to be given notice of the specific charges against him before he was put on trial. See, e.g., Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); Malone v. Commonwealth, 30 S.W.3d 180, 183 (Ky.2000). Giving him notice only now is truly sentence first, verdict second. His conviction must be reversed.
II. Proof of Every Element of the Offense
The theory that Hillard’s conviction for unlawful transaction with a minor in the first degree is based on the underlying offense of third-degree sexual abuse did not exist until the majority opinion was drafted. While this new theory might conform to the evidence, it does not conform to the jury instructions. Apart from the lack of notice, this requires reversal of Hillard’s conviction.
In a criminal case, the government must prove every element of the offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1070-71, 25 L.Ed.2d 368 (1970); Commonwealth v. Collins, 821 S.W.2d 488, 490 (Ky.1991). The jury instruction for unlawful transaction with a minor in the first degree violated this fundamental principle because it did not require the jury to find every element of the underlying illegal sexual offense. And, of course, we discovered for the first time in the majority’s opinion that the underlying offense is third-degree sexual abuse.
There are only two elements to third-degree sexual abuse: (1) subjecting another person to sexual contact (2) without the latter’s consent. KRS 510.130. The instructions given at trial allowed the jury to find that Hillard was guilty of unlawful transaction with a minor in the first degree if it found that Hillard “knowingly induced, assisted, or caused [A.W.] to place [A.W.’s] hand in the anus of Kevin Hil-lard.” Obviously, because A.W. was a minor, the consent element is not applicable. However, notably absent from the instruction was also any requirement that the jury had to find that Hillard subjected A.W. to “sexual contact.”
“Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.” KRS 510.010(7). Nothing in the jury instructions required the jury to find that Hillard’s purpose for inducing A.W. to “fist” him was to gratify his or A.W.’s sexual desire. Rather, the trial court’s instructions simply presumed that this was so. In other words, the trial court directed the jury to find against Hillard on one element of the offense. This was clear error.
Like the majority, I have “no difficulty concluding that A.W.’s ‘fisting’ of Appellant was ‘sexual contact.’ ” But unlike the majority, I believe that this was an issue *769for the jury to decide, not this Court or the trial court. As we recently stated, “[i]t is never pi'oper for a trial court to direct a verdict of guilty where there is a plea of not guilty, despite the fact that the evidence of his guilt may be convincing and wholly uncontradicted.” See Taylor v. Commonwealth, 125 S.W.3d 216, 219 (Ky.2003) (emphasis added). Of course, there is a simple explanation as to why the instructions did not require the jury to find that “fisting” constituted “sexual contact.” This theory of the case did not exist until today. Thus, the trial court certainly could not have known to include the element of sexual contact in the instructions.
Hillard admittedly did not preserve the error by objecting to the instructions. But, in his defense, the error did not exist at the time. Rather, it came into being with the majority’s retroactive theory of the case. As such, I simply cannot fault the defense for failing to object to an error that did not yet exist.
III. Abuse of Subpoena Power
The majority concedes that the prosecutor unlawfully subpoenaed two teenage witnesses to his office and unlawfully compelled them to give him a statement under the threat of perjury. But the majority deftly changes the issue from the Commonwealth’s violation of the law to one of trial error. This slight of hand permits the majority to characterize the Commonwealth’s blatant violation of the law as unpreserved error.
The prosecutor’s abuse of power first came to light at trial during the following exchange during the Commonwealth’s Attorney’s cross-examination of N.M., who was a defense witness:
CA: Can you tell the jury whether or not you have ever spoken to me before?
N.M.: Urn huh.
CA: And when I spoke to you, I let you know that anything you said was pretty serious. I mean this is a serious matter.
N.M.: Right.
CA: And I actually subpoenaed you to come to my office?
N.M.: Right, you brought me a subpoena at Dairy Queen.
CA.: And I also brought out there a subpoena for [J.S.], is that correct?
N.M.: Correct.
C.A.: Now, you showed up at my office?
N.M.: Correct.
C.A.: And I let you know right off the bat how serious a charge this man is facing, and I read you the definition of perjury?
N.M.: Right, every time ... before I spoke, you brought that up.
C.A.: So, that’s a yes or is that a—
N.M.: Right.
C.A.: So, I wanted you to know that this was serious?
N.M.: Right.
C.A.: Now—
N.M.: But ... I don’t feel that you wanted me to know it was serious. I feel [that] you were trying to intimidate me—
C.A.: O.K.
N.M.: —into saying what you thought was true.
C.A.: O.K., that’s your feeling and you’re entitled to that. Now, do you recall talking to me in that office with [J.S.]?
N.M.: Urn huh.
C.A.: And you noticed at that time I made a lot of notes? Do you remember me making a bunch of notes? In fact, I made them with a blue-colored pen—
*770When the prosecutor referenced the notes, defense counsel objected on the grounds it had not been provided these notes. The majority opinion chides defense counsel for not asking the trial court for appropriate relief to cure the error. But it is erroneous to characterize what happened as trial error that required an objection to be preserved for appellate review. There was a violation of the law and the controlling criminal rules that occurred before trial. The defense should not be punished simply because these violations first came to light during trial.
I would agree with the majority if the defense had learned of the Commonwealth’s Attorney’s unlawful actions prior to trial. In such instance, the defense would have had time to formulate a strategy and determine what relief was available. And in such a scenario, the defense fairly could be held accountable for failing to take appropriate action. But I cannot reward the Commonwealth, as the majority does herein, for successfully concealing its unlawful acts until trial. These are not mere technical violations of complicated rules. Rather, the Commonwealth’s unlawful acts remove any “justice” from the criminal justice system.
Relying on the color of his office, the Commonwealth’s Attorney used unlawful subpoenas to compel two witnesses to come to his office. Neither Hillard nor defense counsel was given notice of the subpoenas. So, of course, neither was present when the witnesses were compelled to give their statements. Once the witnesses were in his office, the Commonwealth’s Attorney further abused his office by falsely threatening the teenage witnesses with perjury.1 One of the teenagers testified that he felt intimidated and coerced by the Commonwealth’s Attorney’s unchecked and unrecorded show of force. While the Commonwealth has the authority to fully investigate its cases, it cannot compel a witness in a criminal case to make an extrajudicial, pre-trial statement without the presence of defense counsel or the defendant. The potential for abuse, e.g., witness intimidation, denial of the defendant’s constitutional rights, etc., is just too great.
The majority flippantly implies that these violations do not warrant reversal because the Commonwealth could have obtained the same information through voluntary interviews. I believe, however, that what the Commonwealth could have obtained through proper methods of discovery is entirely irrelevant. The end does not justify the means.
The only authorized, lawful means for securing a prospective witness’s statement before a criminal trial is by deposition, and then, only upon a showing of the witness’s unavailability at trial. RCr 7.10. When taking depositions, “[t]he order authorizing the taking of a deposition shall contain such specification as will fully protect the rights of personal confrontation and cross-examination of the witness by the defendant.” RCr 7.12. The methods used by the Commonwealth’s Attorney in this case ran completely roughshod over the important constitutional rights zealously protected by RCr 7.12. As a direct result of the Commonwealth’s violations of the law, Hil-*771lard was deprived of the most basic and rudimentary protections of due process of law.
“As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it, we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). The Commonwealth’s Attorney in this case acted outside of the law and beyond the powers of his office in direct contravention of his sworn duty to enforce and to uphold the law. This gross distortion of the judicial process is utterly incompatible with basic notions of fairness and justice. And no matter what the majority calls it, it stinks. To paraphrase Gertrude Stein, “a skunk is a skunk is a skunk.”
While the usually able members of the majority may be able to hold their collective noses to affirm this case, I cannot. Therefore, I dissent.
. The elements of perjury could not be met in connection with the witnesses’ oral statements made in the Commonwealth’s Attorney’s office. The elements of first-degree perjury were not present because the statements were not made in an official proceeding. KRS 523.020. The elements of second-degree peijury were not present because the statements were not made in a ''subscribed instrument.” KRS 523.030. Additionally, even the elements of false swearing were not present because the statements were not made under oath or required by law. KRS 523.040.