Summary
The Supreme Court of Kentucky reviewed David A. Clark's convictions for twenty-five felony offenses arising from sexual abuse of three children. The court rejected claims concerning jury bias, indictment and jury-instruction variances, and testimony regarding prior abuse, but held that convictions under Kentucky statutes governing use of a minor in a sexual performance and promotion of a sexual performance by a minor violated double jeopardy. The court vacated the promotion conviction while otherwise affirming the judgment.
Topics
Practice areas
Questions Presented
- Whether the trial court erred by refusing to dismiss the entire jury pool based on alleged bias arising from jurors' contact with a reporter.
- Whether convictions under KRS 531.310 for use of a minor in a sexual performance and KRS 531.320 for promoting a sexual performance by a minor violated double jeopardy when based on the same course of conduct.
- Whether variances between the victims named in the indictment and the victims listed in the jury instructions constituted palpable error requiring reversal.
- Whether testimony by Clark's former live-in girlfriend concerning his prior physical abuse was inadmissible other-acts evidence and prejudicial despite inadequate notice under KRE 404(c).
Holdings
- A defendant is not entitled to dismissal of an entire jury panel based on speculation that prior contact with a reporter created bias; the defendant must demonstrate actual bias, and voir dire provided the proper means to test impartiality.
- Convictions under KRS 531.310 and KRS 531.320 violate double jeopardy when both arise from the same course of conduct and neither offense requires proof of a fact that the other does not.
- A variance in the victims' initials between the indictment and jury instructions does not require reversal absent surprise, prejudice, lack of fair notice, or a different or additional offense.
- The testimony was admissible as evidence inextricably intertwined with the discovery and reporting of the charged crimes, and the lack of notice under KRE 404(c) was harmless because Clark failed to show substantial prejudice.
Key quotations
“Therefore, we hold that Appellant's convictions under KRS 531.310 and KRS 531.320 violate double jeopardy as they fail the Blockburger test, representing convictions which arise out of a single course of conduct and not requiring proof of a fact which the other does not.” (at 678)
“The variance between the indictment and the jury instructions was nothing more than the insertion of the correct set of corresponding initials for the victims of the crimes charged.” (at 680)
“As such, the complained of testimony was cumulative in nature.” (at 681)
Factual background
Clark was convicted of multiple sexual offenses against his two biological children and the child of his live-in girlfriend. The convictions included use of a minor in a sexual performance and promotion of a sexual performance by a minor arising from a single incident in which Clark directed two children to simulate sexual intercourse while he watched and masturbated. Before trial, several prospective jurors had served on another trial and had been criticized by a reporter for acquitting the defendant in that case, but each prospective juror questioned stated that he or she could remain impartial.
Procedural history
A Hardin Circuit Court jury convicted Clark of twenty-five felony offenses involving the sexual abuse and exploitation of three minor children, and the circuit court sentenced him to life imprisonment. Clark appealed as a matter of right, challenging jury-panel impartiality, double jeopardy, variances between the indictment and jury instructions, and the admission of testimony concerning prior physical abuse. The Supreme Court of Kentucky reversed and vacated one conviction on double-jeopardy grounds and affirmed the remaining convictions.
Remand instructions
Reverse and vacate Clark's conviction for promoting a sexual performance by a minor under KRS 531.320; affirm all remaining convictions.