Concurring.
I do not agree that a person can be convicted of an offense involving sexual intercourse on the basis of statistics that assume a 50% probability of guilt solely because he has been accused. There might be justification for factoring in the 50% probability when the paternity test is used to identify a child’s father in a civil action for the purpose of establishing a child support obligation. KRS 406.011; KRS 406.111. In most such cases, the alleged father admits having had sexual intercourse with the child’s mother but denies that the act resulted in conception. But there is no justification for factoring in a 50% probability of guilt in a criminal case when the alleged father denies having had sexual intercourse with the child’s mother and the act of sexual intercourse is the crime of which he is accused. Use of a statistic that assigns a 50% probability of guilt based solely on the existence of an accusation denigrates the presumption of innocence by shifting the burden of proof from the prosecution to the defense.
However, I agree that the error was rendered harmless when the jury acquitted Appellant of the only charge that was premised upon the victim’s pregnancy, i.e., incest. If the jurors believed Appellant was the father of H.B.’s child, they would have necessarily found him guilty of incest. For whatever reason, they believed H.B.’s accusations that Appellant subjected her to sexual intercourse, deviate sexual intercourse, and sexual abuse prior to her twelfth birthday, but disbelieved her accu*13sation that he subjected her to sexual intercourse again at age fourteen — despite evidence of a 99.74% probability that he was the father of her child. Perhaps the jurors, too, had misgivings about converting an accusation into a 50% probability of guilt.
STUMBO, J., joins this concurring opinion.