RONALD C. BERRY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 2, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001304-MR
RONALD C. BERRY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
INDICTMENT NOS. 00-CR-00099 & 98-CR-00278
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON, AND HUDDLESTON, JUDGES.
DYCHE, JUDGE.
Ronald C. Berry appeals from a final judgment and
sentence of imprisonment entered by the Fayette Circuit Court
after a jury found Berry guilty of twelve counts of sodomy in the
first degree (Kentucky Revised Statute [KRS] 510.090).
Berry was
sentenced to three years’ imprisonment on each count, with all
sentences to run concurrently for a total of three years.
Having
reviewed the record and the applicable law, we affirm.
Berry was the executive director of Micro-City
Government in Lexington, Kentucky.
Micro-City Government is a
nonprofit community service program providing activities for
inner-city youth.
Micro-City Government sought to provide
programs to keep youth off the street and foster a positive
relationship between police and young people.
It is modeled
after the local government, with Lexington teenagers filling the
mock governmental roles.
It provided employment and various
programs in which the teenagers could participate, including a
summer free lunch program, neighborhood block parties and dances,
sports programs, field trips, and a variety of girls’ and boys’
clubs.
The Fayette County grand jury returned an indictment
against Berry in March 1998, charging him with three counts of
indecent or immoral practices1 and twelve counts of third-degree
sodomy.2
The sodomy was alleged to have occurred between late
1977 and 1980.
All five of the victims were participants in
Micro-City Government and most were members of the Playboy Club,
a social club of Micro-City Government which met weekly at
Berry’s home.
All were either fourteen or fifteen years old when
Berry committed various sexual acts with them, including oral sex
and anal penetration.
Berry was at all times over twenty-one
years of age.
The first trial of this action was conducted in
September, 1998.
The jury was unable to agree on a verdict, and
the court declared a mistrial.
The second trial, conducted in
1
One count of indecent or immoral practices was dismissed
on motion of the Commonwealth prior to the first trial. The
remaining two counts were dismissed on motion of the Commonwealth
prior to the third trial. We therefore omit any discussion of
these charges.
2
Counts 14-15 of the original indictment were dismissed on
motion of the Commonwealth prior to the third trial.
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April, 1999, also ended in a mistrial after a witness introduced
polygraph testimony.
A subsequent defense motion for change of
venue was granted, and the trial was moved to Jefferson County.
In January, 2000, the Commonwealth secured another
indictment against Berry for third-degree sodomy against a sixth
victim.
The indictment stated that the offenses occurred
“[b]etween 1982 and March 17, 1986.”
Once again, Berry met the
victim through Micro-City Government and, like the other five
victims, Berry performed a variety of sexual acts on this victim,
including oral sex and anal penetration.
The first offense
occurred when the victim was twelve years old.
Over Berry’s
objection, the new indictment was consolidated with the previous
indictment for trial.
2000.
The third trial was conducted in March,
The jury returned a verdict of guilty to all twelve counts
of third-degree sodomy, and recommended concurrent sentences of
three years’ imprisonment for each count.
This appeal follows.
Berry first alleges error when the trial court denied
his motion to dismiss the charges due to the lengthy
preindictment delay.
Kentucky law provides no statute of
limitations for the prosecution of a felony offense.
KRS
500.050; Reed v. Commonwealth, Ky., 738 S.W.2d 818, 820 (1987).
Because the delay occurred prior to Berry’s indictment or arrest,
the speedy trial provisions in the Sixth Amendment to the United
States Constitution and Kentucky Constitution § 11 are not
implicated.
Reed, 738 S.W.2d at 820.
“Nevertheless, unjustified
and prejudicial preindictment delay may constitute a violation of
due process and require dismissal.
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Prejudice alone will not
suffice.”
Kirk v. Commonwealth, Ky., 6 S.W.3d 823, 826 (1999)
(internal citation omitted).
The United States Supreme Court, in United States v.
Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977),
indicated that a due process inquiry must consider both the
reasons for the delay and the prejudice to the accused.
790, 97 S. Ct. at 2049, 52 L. Ed. 2d at 759.
Id. at
Dismissal of the
indictment is required only where the accused shows substantial
prejudice to the ability to present a defense and where the
prosecutorial delay was intentional in order to gain a tactical
advantage.
United States v. Marion, 404 U.S. 307, 324, 92 S. Ct.
455, 465, 30 L. Ed. 2d 468, 481 (1971); Kirk, 6 S.W.3d at 826;
Reed, 738 S.W.2d at 820.
Berry asserts that because Kentucky has no statute of
limitations applicable to felony prosecutions, only the
substantial prejudice prong of Marion should be applied by this
Court to the case at bar.
We decline his invitation to construct
such an analysis for two reasons.
First, the Supreme Court, both
in Kirk, supra, and Reed, supra, has indicated that both prongs
of the Marion test should be examined where the accused alleges
preindictment delay.
This Court is bound by and must follow
precedents established by opinions of the Supreme Court.
of the Supreme Court 1.030(8)(a).
Rules
We can not, therefore, elect
to apply only one prong of the test when our highest court has
applied the test in full.
Secondly, we disagree with Berry’s assertion that the
Marion test applies only where there is a statute of limitations
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framework in place to protect the rights of the accused.
Marion
states:
[I]t is appropriate to note here that the
statute of limitations does not fully define
the [accused’s] rights with respect to the
events occurring prior to indictment. Thus,
the Government concedes that the Due Process
Clause of the Fifth Amendment would require
dismissal of the indictment if it were shown
at trial that the pre-indictment delay . . .
caused substantial prejudice . . . and that
the delay was an intentional device to gain
tactical advantage over the accused.
404 U.S. at 324, 92 S. Ct. at 465, 30 L. Ed. 2d at 480-81
(emphasis added).
It appears to us that the due process analysis
may be utilized separate from statute of limitations
considerations.
Therefore, an accused must satisfy both prongs
of the analysis, even in the absence of a statute of limitations.
Berry claims that his ability to defend himself against
the charges was prejudiced by the delay in bringing charges, in
some instances of up to twenty years; that the vague time frames
established for the occurrences substantially harmed his ability
to provide an alibi for the times in question; and that records
of Micro-City Government related to the victims and the Playboy
Club had been destroyed.
Similar claims of prejudice were raised
in Reed, supra, where there was an eight-year delay between the
crime and the indictment.
The Court responded:
[A]ppellant has failed to demonstrate actual
prejudice. He has generally asserted that
the delay prevented the discovery of alibi
witnesses, but has shown nothing more. The
mere possibility that some evidence which was
unavailable at trial would have been
available at an earlier time is insufficient.
Appellant was accused of having raped B.R.C.
five times within a period of approximately
two hundred days. Not a single date was
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identified as a date upon which any one of
the crimes occurred. For alibi testimony to
have significantly aided appellant's defense,
witnesses would have been necessary to
account for his whereabouts at all or
substantially all times during this period.
The possibility that any person could produce
such evidence is remote.
738 S.W.2d at 820 (emphasis added; internal citation omitted).
In Kirk, supra, a 1978 murder indictment was dismissed
after the defendant was adjudged to be incompetent to stand
trial.
He was reindicted for the murder in 1997, tried,
convicted, and sentenced to life imprisonment.
The Court
remarked that, in that time, the chief investigating officer for
the Commonwealth had died and the crime scene had been destroyed.
It stated that “the mere passage of time does not give rise to a
constitutional violation per se,” and that absent an “improper
reason for the delay, mere proof of prejudice would be
insufficient to support a dismissal.”
6 S.W.3d at 827.
We do
not believe Berry’s circumstances are markedly different from
Kirk or Reed, and reject his claims of actual prejudice as
insufficient.
Berry has not attempted to argue that there was an
intentional effort on behalf of the Commonwealth to delay the
procurement of an indictment for tactical reasons.
To succeed on
his claim that the delay caused substantial prejudice to him, he
must satisfy both prongs.
Even had we found that Berry had
demonstrated actual prejudice, he has failed to present any
argument related to intentional delay for tactical advantage.
conclude as a matter of law that the trial court properly
rejected his claim of prejudicial preindictment delay.
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We
Berry next claims that the trial court erred by
consolidating the 1998 indictment with the 2000 indictment for
trial, and that certain charges should have been severed for
trial because the sexual acts charged were different in
circumstance and remote in time.3
Kentucky Rule of Criminal
Procedure (RCr) 9.12 permits a court to join two or more
indictments for trial if the offenses could have been joined in a
single indictment.
RCr 6.18 states that separate offenses may be
joined in a single indictment “if the offenses are of the same or
similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or
plan.”
However, RCr 9.16 requires that offenses shall be
separated for trial “[i]f it appears that a defendant or the
Commonwealth is or will be prejudiced by a joinder of offenses.”
The trial court is afforded broad discretion in regard to joinder
and its decision will not be overturned absent a showing of clear
abuse of that discretion.
Violett v. Commonwealth, Ky., 907
S.W.2d 773, 775 (1995).
A significant factor in determining whether joinder is
proper, or whether prejudice exists, is the extent to which
evidence of one offense would be admissible in a trial of the
other offense.
(1999).
Commonwealth v. English, Ky., 993 S.W.2d 941, 944
In this light, “evidence of independent sexual acts
between the accused and persons other than the victim, if similar
3
The heading for this argument in Berry’s brief also
claims error in the trial court’s denial of a continuance of the
trial date. However, he fails to argue this point in the brief
and we therefore decline to address it.
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to the act charged, and not too remote in time, are admissible to
show intent, motive or a common plan.”
Anastasi v. Commonwealth,
Ky., 754 S.W.2d 860, 861 (1988)(citing Pendleton v. Commonwealth,
Ky., 685 S.W.2d 549 [1985]).
Anastasi was charged with abusing four boys, one on two
occasions between 1982 and 1984.
The Court held that it was not
an abuse of discretion to allow testimony of an alleged rape of
another young boy that occurred eight years prior to trial and
five years prior to the sexual abuse charged.
S.W.2d at 861.
Anastasi, 754
Evidence that is remote in time “may only be
admitted when the prior alleged activity indicates ‘a common and
continuing pattern of conduct on the part of the accused,’” and
evidences “not merely an isolated incident which occurred a long
time ago . . . but rather the first in a series of sexual
assaults.”
Id. at 863 (Stephens, C.J., dissenting) (quoting
Pendleton, supra at 552).
In this case, the earliest offense charged in the 1998
indictment occurred in December 1977, and the latest offense in
that indictment occurred in 1980.
The ten counts in the 1998
indictment were committed on five different victims.
The 2000
indictment charged that Berry committed the same criminal act as
in the first indictment — third-degree sodomy4 — on another
victim in 1982, and again in 1986.
4
In every instance, the crime
KRS 510.090(1)(b) states that a person is guilty of
third-degree sodomy when, “[b]eing twenty-one (21) years old or
more, he engages in deviate sexual intercourse with another
person less than sixteen (16) years old.” “Deviate sexual
intercourse” is defined in KRS 510.010(1) in part as “any act of
sexual gratification involving the sex organs of one person and
the mouth or anus of another . . . .”
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involved a boy under the age of sixteen who was participating in
Micro-City Government.
All twelve instances of third-degree
sodomy occurred in Berry’s home while he was there alone with
each boy.
Given these remarkable similarities in character and
circumstance, we do not believe that the events were so remote in
time that joinder at trial amounted to unfair prejudice to Berry.
Berry cites Rearick v. Commonwealth, Ky., 858 S.W.2d
185 (1993), in support of his position that the indictments
should have been severed.
However, Rearick was convicted of
three counts of first-degree sodomy, one count of third-degree
sodomy, and two counts of first-degree sexual abuse from three
separate indictments consolidated for trial.
The Court held that
evidence of other crimes charged in the indictment was not
sufficiently similar to the charge on trial so that it would be
admissible as part of a common scheme or plan, and that the
“other crimes” evidence likely tainted the jury’s belief as to
each of the crimes charged.
Id. at 188.
charged with the same criminal offense.
Berry, however, was
The evidence in each
count was sufficiently similar to demonstrate a common scheme or
plan, and the trial court did not err in consolidating the
indictments, or the charges, for trial.
See Violett, supra.
Berry’s third contention is that the trial court abused
its discretion by overruling his objection to the Commonwealth’s
peremptory challenge to a juror.
Following voir dire, the
Commonwealth exercised one of its peremptory strikes against
juror number 130, an African-American female.
Berry timely
objected to this strike, arguing that the Commonwealth had used
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this peremptory challenge against juror number 130 because of her
race.
The Commonwealth responded that it struck the juror
because she had stated that a family member had been a defendant
in a criminal case, and because she had been a party to a
discrimination lawsuit.
Washington v. Commonwealth, Ky., 34 S.W.3d 376 (2000),
sets forth a three-part test for evaluating a claim that a
potential juror has been removed for racially-motivated reasons.
The defendant must first make a prima facie showing of racial
bias for the peremptory challenge.
If the requisite showing is
made, the burden shifts to the Commonwealth to articulate "clear
and reasonably specific" race-neutral reasons for the peremptory
challenge.
The trial court must then evaluate the credibility of
the proffered reasons to determine if the defendant has
established purposeful discrimination.
Id. at 379 (citing Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
[1986]).
The trial court found that the Commonwealth’s reasons
for striking juror number 130 were valid, race-neutral reasons.
The trial judge's findings in this context largely turn on
evaluation of credibility, and are thus given great deference by
a reviewing court.
112, 114 (1990).
Stanford v. Commonwealth, Ky., 793 S.W.2d
We do not find that the trial court clearly
erred in its determination, and therefore accept its ruling.
Id.
Berry next asserts that the trial court erred by not
granting his motion for a mistrial during the testimony of B. D.,
one of the victims.
At Berry’s first trial, B. D. stated that he
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did not tell his parents about a fondling incident5 by Berry
because B. D.’s father had told him that Berry was a homosexual
and instructed him not to go to Berry’s house.
Berry objected
and requested an admonition to the jury, which the trial court
gave.
At the second trial, prior to asking B. D. why he did not
tell his parents about that same incident, the Commonwealth asked
to approach for a bench conference.
Berry’s attorney requested
that the court instruct B. D. not to refer to Berry’s sexual
preference, arguing that the statement was hearsay and would be
unfairly prejudicial.
The trial court granted the motion, and
B. D. made no mention of his father’s comment.
When asked by the Commonwealth at the third trial why
he went back to Berry’s house and continued meeting with the
Playboy Club after the first incident, B. D. stated, “Well, the
second time I, uh, come [sic] through and I’m thinking, you know,
everything’s cool and, you know, Ron’s my [cousin] because he
knows I’m not that way because, you know, in some sense we all
sensed that Ron was, you know, may have been gay or bi- . . . .”
Berry objected and requested a mistrial.
The trial court denied
the motion, but admonished the jury to disregard the statement.
Berry argues that Chumbler v. Commonwealth, Ky., 905
S.W.2d 488 (1995), held that the admission of evidence related to
a defendant’s sexual habits was reversible error.
this mischaracterizes the holding in Chumbler.
We believe
The Supreme Court
analogized evidence of homosexuality to evidence of extramarital
5
The fondling incident occurred before, and separate from,
the third-degree sodomy incident charged in the indictment.
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affairs, and stated that “[e]vidence of extramarital sexual
activity should be admitted or excluded without regard to . . .
whether homosexual or heterosexual activity is involved.”
492 (emphasis added).
Id. at
The Court ruled that evidence of a
homosexual relationship was admissible in a murder trial because
it was connected to the crime charged and relevant to establish
motive.
Id. at 493.
It further instructed that “testimony about
and references to [defendant’s] relationships with third parties
and evidence of the defendant’s sexual habits unrelated to the
crime charged was improper smear evidence irrelevant to . . .
motive.”
Id. at 493-94 (emphasis added).
The testimony was not hearsay, as it was not introduced
to prove the truth of the matter asserted but rather to show the
victim’s state of mind in not telling his parents about the
incident.
Kentucky Rules of Evidence (KRE) 801(c); 803(3).
We
find that the testimony would have been admissible, because it
was not unrelated to the crime charged, and did not mention any
third parties; it was therefore not improper smear evidence.
Trial court error, if any, would have been in Berry’s favor,
since the jury was admonished to disregard the statement.
Berry’s fifth assignment of error concerns the
testimony of Detective Stella Plunkett.
Plunkett testified that,
based on her experience, it was not unusual for victims of child
sexual abuse to delay reporting that abuse.
Such a delay is an
element of child sexual abuse accommodation syndrome (CSAAS), a
syndrome that has been routinely rejected as expert opinion
evidence in Kentucky.
Newkirk v. Commonwealth, Ky., 937 S.W.2d
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690 (1996); Bussey v. Commonwealth, Ky., 697 S.W.2d 139 (1985).
“The only reason generally advanced for admitting CSAAS testimony
is its relevance to credibility of the victim.”
S.W.2d at 693.
Newkirk, 937
Berry argues to this Court that Detective
Plunkett’s testimony thus improperly bolstered the credibility of
the victims.
However, he failed to make a contemporaneous
objection to the testimony at trial.
RCr 9.22.
The Supreme Court faced a similar situation in Stringer
v. Commonwealth, Ky., 956 S.W.2d 883 (1997).
There, a witness
improperly vouched for the credibility of a child sexual abuse
victim, but there was no contemporaneous objection.
The Court
stated,
If a party does not timely inform the trial
judge of the alleged error and request the
relief to which he considers himself
entitled, the issue is not preserved for
appellate review. Nor do we believe that the
admission of this evidence constituted
‘manifest injustice’ so as to rise to the
level of palpable error. RCr 10.26.
Id. at 888 (internal citations omitted).
Likewise, we decline to
review this unpreserved error, and do not believe that admission
of the testimony amounts to “manifest injustice” to warrant
palpable error review.
RCr 9.22; RCr 10.26.
Berry also charges that the Commonwealth made improper
comments concerning uncharged crimes during its summation to the
jury.
During closing argument, the prosecutor mentioned that the
instances of fondling to which witnesses had testified were also
criminal acts, but Berry had not been charged with them in the
current indictments because the charges were misdemeanor offenses
subject to a one-year statute of limitations.
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Berry’s counsel
objected and requested a mistrial for mention of these prior bad
acts.
The Commonwealth indicated that it was merely trying to
dispel any confusion the jury might have about why these
offenses, which had been introduced through testimony, had not
been charged.
The trial court overruled the objection after
determining that the Commonwealth did not plan to pursue this
line of argument.
Attorneys are granted wide latitude during closing
argument.
Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 39 (1998),
cert. denied, 525 U.S. 1153 (1999).
When reviewing allegations
of error in closing argument, “[t]he required analysis, by an
appellate court, must focus on the overall fairness of the trial,
and not the culpability of the prosecutor. . . .
A prosecutor
may comment on tactics, may comment on evidence, and may comment
as to the falsity of a defense position.”
Slaughter v.
Commonwealth, Ky., 744 S.W.2d 407, 411-12 (1987)(internal
citation omitted).
Reversal is only justified when the alleged
prosecutorial misconduct is so egregious as to render the trial
fundamentally unfair.
Partin v. Commonwealth, Ky., 918 S.W.2d
219, 224 (1996).
We do not believe that the prosecutor went outside the
permissible boundaries of closing argument with his statements.
The fondling testimony to which he referred had been admitted
without objection during the trial.
It was not, as Berry argues,
all related to the acts for which he was charged; in one example
previously discussed, B. D. testified to an incident in an
automobile in which his penis was touched by Berry, an act for
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which Berry was not charged.
Viewing the trial as a whole, we do
not conclude that the fleeting reference by the prosecutor,
explaining why these acts were not charged, rendered the trial
fundamentally unfair.
Berry next argues that the trial court erred by
preventing him from introducing evidence that one of the victims,
K. G., had made other false allegations of sodomy with adult
males.
By avowal at the second trial, K. G. testified that he
had engaged in sexual activity with a preacher after K. G. turned
sixteen years of age.6
By avowal at the third trial, the
preacher denied the charge.
evidence.
The trial court excluded the
Berry claims that the evidence was admissible to
impeach K. G.’s credibility, and that the trial court erred in
relying on KRE 412, which generally prohibits the introduction of
evidence of a victim’s past sexual behavior.
We disagree.
Hall v. Commonwealth, Ky. App., 956 S.W.2d 224 (1997),
is the case most directly on point.
In Hall, the defendant in a
rape trial sought to admit evidence that the victim had claimed
to have been raped a second time, by three men, subsequent to the
incident for which Hall stood accused.
The men denied the rape
allegations and claimed that the victim had consented to sex in
exchange for drugs.
this Court affirmed.
The trial court excluded the evidence, and
Id. at 226-27.
After examining a number of
cases from sister states, the Court adopted the following rule:
6
By order entered March 14, 2000, the trial court ordered
that K. G.’s avowal testimony be made part of the record of the
proceedings of the third trial.
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If the unrelated accusations are true, or
reasonably true, then evidence of such is
clearly inadmissible primarily because of its
irrelevance to the instant proceeding.
Additionally, unrelated allegations which
have neither been proven nor admitted to be
false are properly excluded. If demonstrably
false, the evidence still must survive a
balancing test, i.e., the probative value
must outweigh the prejudicial effect.
Id. at 227.
Thus, the only way such allegations are admissible is
if they are demonstrably false, and if the probative value of the
evidence outweighs its prejudicial effect.
from Hall in two significant respects.
This case differs
First, Berry has not
shown that K. G.’s allegation of sexual activity with the
preacher, unlike the contact with Berry, was a crime7; K. G.
testified that he was over sixteen years of age when the
purported sexual activity with the preacher occurred.
However,
this case also differs in the sense that the preacher’s denial
was made under oath by avowal.
Nevertheless, we can not say that
this denial makes the allegation demonstrably false.
At best,
the allegation has neither been proven nor admitted to be false.
Even if it were demonstrably false, we do not find that its
probative value outweighs its prejudicial effect.
“While
arguably relevant, evidence of this nature is without doubt
extremely prejudicial.
Its admission would undermine the purpose
of KRE 412, shifting the focus from the real issues, and
7
KRE 412(b)(3) states, in pertinent part, that “evidence
of a victim's past sexual behavior other than reputation or
opinion evidence is also not admissible, unless such evidence is
admitted in accordance with subdivision (c) and is . . . [a]ny
other evidence directly pertaining to the offense charged.”
(Emphasis added.)
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effectively put the victim on trial.”
Id.
The trial court did
not abuse its discretion by excluding the evidence.
Berry’s eighth claim of trial error was the failure of
the trial court to give the jury his tendered instruction
defining reasonable doubt.
RCr 9.56(2) prohibits the definition
of the term “reasonable doubt,” and courts in the Commonwealth
have long followed this rule.
S.W.2d 391, 393 (1984).
Commonwealth v. Callahan, Ky., 675
See also Young v. Commonwealth, Ky., 50
S.W.3d 148 (2001); Perdue v. Commonwealth, Ky., 916 S.W.2d 148
(1995); Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990); King
v. Commonwealth, Ky. App., 875 S.W.2d 902 (1993).
Despite the language of RCr 9.56(2), Berry claims that
Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d
640 (1979), and Pevlor v. Commonwealth, Ky., 638 S.W.2d 272
(1982), require the court to determine whether, under the
totality of the circumstances, an instruction on reasonable doubt
should be given.
Giving due consideration to the record, we are
not of the opinion that the failure to instruct the jury on the
definition of reasonable doubt deprived Berry of a fair trial.
Finally, Berry alleges that the trial court erred by
allowing the dates of the offenses listed in the jury
instructions to vary from the dates listed in the indictments.
Specifically, Instruction No. 4 read “in or about 1979 or 1980,”
whereas the corresponding charge in the indictment read “in 1979
or 1980,” and Instruction Nos. 5 and 6 read “in or about 1979,”
and the corresponding charges in the indictment read “in 1979.”
Berry emphasizes that the dates are critical, because if the jury
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found that the offenses occurred after the victims turned sixteen
years old, Berry could not be found guilty; he therefore claims
that the dates are material elements of the offenses charged.
Berry correctly notes that RCr 6.16 permits the court
to amend an indictment prior to rendition of a verdict if no
additional or different offense is charged and the amendment will
not substantially prejudice the defendant.
In this case, the
Commonwealth made no motion to amend the indictment, but merely
asked that the jury instructions be amended.
The critical question is the age of the victim at the
time of the offense, not the specific date of the offense.
Stringer, 956 S.W.2d at 886.
The victims testified that the
offenses occurred before they turned sixteen years old.
Since
the age of the victims is the fundamental question, we do not
believe that the semantic difference between “in” and “in or
about” caused substantial prejudice to Berry or affected his due
process rights.
“[U]nder RCr 6.16 the indictment could and
should have been amended to include . . . the date shown by the
proof and used in the instructions.
However, the failure to do
so did not affect [Berry's] substantial rights.”
Commonwealth v.
Day, Ky., 599 S.W.2d 166, 169 (1980).
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William E. Johnson
Laura K. Stratton
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
ORAL ARGUMENT FOR APPELLANT:
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
William E. Johnson
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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