Charles Justice v. Commonwealth of Kentucky

Summary

The Supreme Court of Kentucky affirmed in part, reversed in part, and remanded Charles Dean Justice's convictions arising from sexual offenses involving minors. The court held that the trial court did not err in permitting amendment of the indictment or denying directed verdict motions, and that improper medical-expert testimony identifying Justice as the perpetrator did not constitute palpable error requiring reversal. The court found reversible error in duplicitous jury instructions concerning attempted rape and sexual abuse of E.W., requiring reversal of those convictions.

Holdings

1. The trial court erred under Blane by allowing amendment of the indictment after granting a directed verdict without first unequivocally withdrawing the directed verdict, but the error was harmless because the amendment added a lesser-included offense and did not prejudice Justice's defense.
2. Justice was not entitled to a directed verdict on attempted first-degree rape because E.W.'s testimony that Justice touched his penis to the outside of her vagina was sufficient for a reasonable jury to find a substantial step toward sexual intercourse.
3. Justice was not entitled to a directed verdict on the attempted-promotion charge involving C.J. because testimony that he supplied a sex toy, instructed C.J. to use it, and may have photographed her permitted a reasonable jury to find a substantial step toward promoting a sexual performance by a minor.
4. It was error to admit medical experts' testimony that the victims identified Justice as their abuser because those identifications were not necessary for medical diagnosis or treatment, but the error did not constitute palpable error warranting reversal.
5. Jury instructions 4 and 5 violated Justice's right to a unanimous verdict and created a double-jeopardy problem because they did not distinguish the conduct supporting attempted rape from the conduct supporting sexual abuse of E.W.; the convictions for attempted rape and sexual abuse of E.W. must therefore be reversed.
6. Jury instructions 7 and 8 did not violate double jeopardy because incest and sexual abuse each required proof of a fact the other did not: incest required proof of a familial relationship, while sexual abuse required proof of the victim's age.
7. The phrase 'two or more times' in the challenged instructions did not itself violate unanimity requirements because Kentucky law permits conviction based on a continuing course of conduct without requiring jurors to agree on the same two instances.
8. The 220-year sentence was illegal because KRS 532.110(c) capped the aggregate sentence at 70 years; KRS 532.110(d)'s requirement of consecutive sentences for multiple sex offenses involving multiple victims did not eliminate that cap under controlling precedent.

Questions Presented

1. Whether the trial court improperly amended the indictment to add attempted rape after granting a directed verdict on the charged rape count.
2. Whether the evidence required directed verdicts of acquittal on attempted first-degree rape and attempted promotion of a sexual performance by a minor.
3. Whether admission of medical experts' testimony that the victims identified Justice as the perpetrator constituted palpable error.
4. Whether jury instructions 4 and 5 violated the Kentucky Constitution's unanimous-verdict requirement and the Fifth Amendment's prohibition against double jeopardy, and whether the same defect existed in instructions 7 and 8 or in the use of 'two or more times.'
5. Whether the 220-year sentence exceeded the statutory sentencing cap in KRS 532.110.

Disposition

reversed_and_remanded