BRADFORD (ROBERT E.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 24, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001314-MR
ROBERT EUGENE BRADFORD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 10-CR-00083
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
WITH DIRECTIONS
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BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
LAMBERT, JUDGE: Robert Eugene Bradford has appealed from the final
judgment of the Fayette Circuit Court entered pursuant to a conditional guilty plea,
convicting him of incest and sentencing him to ten years’ imprisonment. Because
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Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
we must hold in this case of first impression that the plain language of KRS
530.020, the incest statute, does not apply to a step-grandparent/step-grandchild
relationship, we must reverse Bradford’s conviction.
In January 2010, the Fayette County grand jury indicted Bradford on
one charge of incest for subjecting his then-fourteen-year-old step-grandson to
deviate sexual intercourse. This occurred between August and November 2009.
Bradford moved the circuit court to either dismiss the indictment or amend the
charge to sodomy in the third degree. In support of his motion, Bradford stated
that KRS 530.020(1) does not apply to the step-grandparent/step-grandchild
relationship. The only “step” relationship addressed by the statute and its
commentary is the stepparent/stepchild relationship. Therefore, because KRS
530.020 does not apply to his relationship with the victim, Bradford contends he
should not have been indicted under that statute.
In response, the Commonwealth argued that through expanding the
reach of the statute, the General Assembly intended to include all relationships
created not only through birth, but also through adoption and marriage. This
would include the step-grandparent/step-grandchild relationship. In support, the
Commonwealth cited to the unpublished opinion of Lewis v. Commonwealth, 2009
WL 414583 (2008-CA-000764-MR) (Ky. App. 2009). With this opinion, the
Commonwealth argued that this Court implicitly concluded that KRS 530.020
prohibited sexual intercourse between a step-grandparent and a step-grandchild.
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The circuit court agreed with the Commonwealth and denied
Bradford’s motion. Bradford then moved the circuit court enter a guilty plea
conditioned upon his right to appeal the adverse ruling. The circuit court accepted
his plea, found him guilty as charged in the indictment, sentenced him to the
minimum term of ten years’ imprisonment, and imposed upon him other
requirements due to his status as a sex offender. The court permitted Bradford to
remain on bond pending his appeal. This appeal follows.
We begin our analysis by recognizing that “[a]ll statutes of this state shall be
liberally construed with a view to promote their objects and carry out the intent of
the legislature, and the rule that statutes in derogation of the common law are to be
strictly construed shall not apply to the statutes of this state.” KRS 446.080(1).
Furthermore, we recognize that the interpretation of a statute represents a question
of law and that we “must interpret the statute according to the plain meaning of the
act and in accordance with the legislative intent.” Floyd County Bd. of Educ. v.
Ratliff, 955 S.W.2d 921, 925 (Ky. 1997). Likewise, we must afford statutory
language its literal meaning. Coy v. Metropolitan Prop. & Cas. Ins. Co., 920
S.W.2d 73, 74 (Ky. App. 1995). It is also “a well-known rule of statutory
construction that an unambiguous statute is to be applied without resort to any
outside aids.” Dennis v. Commonwealth, 156 S.W.3d 759, 761 (Ky. App. 2005)
(internal quotation marks and brackets omitted).
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The statute at issue in the present case is KRS 530.020, in which the
legislature defined the crime of incest. That statute provides, in relevant part, as
follows:
(1) A person is guilty of incest when he or she has sexual
intercourse or deviate sexual intercourse, as defined in
KRS 510.010, with a person whom he or she knows to be
an ancestor, descendant, brother, or sister. The
relationships referred to herein include blood
relationships of either the whole or half blood without
regard to legitimacy, relationship of parent and child by
adoption, and relationship of stepparent and stepchild.
Bradford argues that the circuit court erred in determining that KRS
530.020 prohibits sexual intercourse between a step-grandparent and a stepgrandchild. Based upon the plain language of the statute, Bradford maintains that
the only “step” relationship it prohibits is one between a stepparent and a stepchild.
On the other hand, the Commonwealth contends that the statute does not include
an exhaustive list of those who could be ancestors or descendants, meaning that the
legislature intended to prohibit multi-generational relationships related by marriage
as well as by blood. It continues to rely upon Lewis, supra, to argue that this Court
has implicitly approved this interpretation of the statute.
Based upon the plain language of the statute as well as the commentary, we
must hold that the legislature did not intend to extend the reach of KRS 530.020 to
the step-grandparent/step-grandchild relationship. Regarding the “step”
relationship, the statutory language itself only refers to the relationship between a
stepparent and a stepchild. The commentary describes the changes in this statute
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from the former law, which prohibited only parent-child lineal relationships. It
explains that KRS 530.020 “extends the prohibited lineal relationship to include
ancestors and descendants. . . . [and] also extends this relationship to include the
relationship of parent and child by adoption and the relationship of step-parent and
step-child.” The legislature did not include the step-grandparent/step-grandchild
relationship in the expanded version of the incest law.
The circuit court, relying on the Commonwealth’s response, cited to Dennis,
supra, to support its conclusion that the legislature intended to extend the reach of
the statute to the step-grandparent/step-grandchild relationship. We disagree with
this assessment. On the contrary, Dennis provides support for Bradford’s
argument. Dennis addresses a situation where the defendant was convicted for
having sexual intercourse with his stepdaughter. The defendant’s argument was
that the statute only prohibited this relationship if there was a blood relationship
between the two persons. This Court disagreed and specifically stated that “[t]he
[prohibited] relationships referred to herein include (1) blood relationships of
either the whole or half blood without regard to legitimacy, (2) relationship of
parent and child by adoption, and (3) relationship of stepparent and stepchild.”
Dennis, 156 S.W.3d at 761.
We further rely upon this Court’s unpublished opinion in Jones v.
Commonwealth, 2007 WL 288280 (2004-CA-002639-MR & 2005-CA-001790MR) (Ky. App. 2007), in which we addressed the definition of stepchild for
purposes of KRS 530.020. The defendant argued that the victim did not fit the
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definition of a stepchild because she was over the age of eighteen. The Court
chose to interpret “stepchild” broadly, and concluded that it meant “a son or
daughter of one’s wife or husband” and encompassed both an adult and a minor
child. Id. at *2. Notably, this definition could not include a step-grandchild.
We also reject the Commonwealth’s and the circuit court’s reliance upon our
unpublished opinion in Lewis, supra, and the statement that this Court implicitly
approved the extension of the statute to the step-grandparent/step-grandchild
relationship. The opinion makes it clear that Lewis was proceeding pro se before
both the circuit court and this Court and, as such, he perhaps would not have had
the legal expertise to raise this issue as a possible defense. Furthermore, Lewis had
entered an unconditional guilty plea, and the only issue he raised in either court
addressed excessive sentencing under KRS 532.110(1). Therefore, this issue was
never raised or considered by this Court.
We appreciate that the Commonwealth brought to our attention the
unpublished opinion of Watkins v. Commonwealth, 2009 WL 4251785 (2008-SC000177-MR) (Ky. 2009), which addressed a sodomy conviction. In a footnote, the
Supreme Court stated that “Watkins was indicted for incest but that charge was
subsequently dismissed because Watkins was M.P.’s step-grandfather, a
relationship not included in the incest statute.” Id. at *1 n.1.
Because this is an issue of first impression, we have also looked for
guidance in other states. In State v. Handyside, 42 Wash. App. 412, 711 P.2d 379
(1985), the Washington appellate court declined to include any “step” relationships
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other than stepparent and stepchild in its interpretation of that state’s incest statute.
RCW 9A.64.020(1)(a) and (2)(a) define the crime of incest as sexual intercourse or
sexual contact “with a person whom he or she knows to be related to him or her,
either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of
either the whole or the half blood.” Descendant is then defined to include
“stepchildren and adopted children under eighteen years of age[.]” RCW
9A.64.020(3)(a). In declining to extend the reach of the statute, the court stated
that “[t]o include the relationship of step-grandparent and step-grandchild in the
incest statute would write a term into the statute not included by the Legislature.
This we cannot do.” Handyside, 42 Wash. App. at 414.
The Georgia appellate court addressed this issue in Glisson v. State,
188 Ga. App. 152, 372 S.E.2d 462 (1988), when it reversed an incest conviction
for acts between a step-grandfather and a step-granddaughter. The current version
OCGA § 16-6-22,2 Georgia’s incest statute, states:
(a) A person commits the offense of incest when such
person engages in sexual intercourse or sodomy . . . with
a person whom he or she knows he or she is related to
either by blood or by marriage as follows:
(1) Father and child or stepchild;
(2) Mother and child or stepchild;
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The version in effect at the time Glisson was rendered provided: “OCGA § 16-6-22(a)
provides: ‘A person commits the offense of incest when he engages in sexual intercourse with a
person to whom he knows he is related either by blood or by marriage as follows: (1) Father and
daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole
blood or of the half blood; (4) Grandparent and grandchild; (5) Aunt and nephew; or (6) Uncle
and niece.’ (Emphasis supplied.)” Glisson, 188 Ga. App. at 152.
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(3) Siblings of the whole blood or of the half blood;
(4) Grandparent and grandchild;
(5) Aunt and niece or nephew; or
(6) Uncle and niece or nephew.
The Glisson court recognized that despite the egregiousness of the acts, “since the
statute does not include a prohibition against sexual intercourse between a
‘stepgrandfather’ and ‘stepgranddaughter,’ it is excluded under the maxim
expression unios est exclusion alterius.” Glisson, 188 Ga. App. at 153.
The Louisiana Court of Appeals affirmed a conviction of aggravated incest
between a step-grandfather and step-granddaughter in State v. Ponsell, 33, 543 (La.
App. 2d Cir. 8/23/00), 766 S.2d 678 (2000). However, unlike in Kentucky, this
relationship was specifically included in the statute. LSA-R.S. 14:78.1(A) defines
“aggravated incest” as:
the engaging in of any prohibited act enumerated in
Subsection B with a person who is under eighteen years
of age and who is known to the offender to be related to
the offender as any of the following biological, step, or
adoptive relatives: child, grandchild of any degree,
brother, sister, half-brother, half-sister, uncle, aunt,
nephew, or niece.”
Like Louisiana’s statute, Arkansas’s incest statute specifically includes the stepgrandparent/step-grandchild relationship. A.C.A. § 5-26-202 provides:
(a) A person commits incest if the person, being sixteen
(16) years of age or older, purports to marry, has sexual
intercourse with, or engages in deviate sexual activity
with another person sixteen (16) years of age or older
whom the actor knows to be:
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(1) An ancestor or a descendant;
(2) A stepchild or adopted child;
(3) A brother or sister of the whole or half
blood;
(4) An uncle, aunt, nephew, or niece; or
(5) A stepgrandchild or adopted grandchild.
Kentucky’s incest statute is more like those of Washington and Georgia
because all three omit any reference to the step-grandparent/step-grandchild
relationship. As our research has proven, courts have declined to apply their
states’ respective incest statute to the step-grandparent/step-grandchild relationship
unless it is specifically included in the statutory language.
We recognize that the purpose of Kentucky’s incest statute is both to
prohibit sexual intercourse between individuals within certain degrees of
relationship to one another and to protect the family unit. Had our legislature
wanted to define such acts between a step-grandparent and a step-grandchild as
incest, it certainly could have included such language in the statute. With so many
of Kentucky’s children now being raised by their grandparents, one of whom might
be a step-grandparent, it might be wise to extend to statute to encompass that
“step” relationship. However, that is a public policy consideration which is best
left to the legislature. See Caneyville Volunteer Fire Dept. v. Green’s Motorcycle
Salvage, Inc., 286 S.W.3d 790, 807 (Ky. 2009) (“Shaping public policy is the
exclusive domain of the General Assembly. We have held that ‘[t]he
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establishment of public policy is granted to the legislature alone. It is beyond the
power of a court to vitiate an act of the legislature on the grounds that public policy
promulgated therein is contrary to what the court considers to be in the public
interest.’”). Therefore, we decline to extend the reach of the statute to the stepgrandparent/step-grandchild relationship based upon the specific language of KRS
530.020. Accordingly, the circuit court committed reversible error when it denied
Bradford’s motion to dismiss or to amend the indictment.
For the foregoing reasons, the final judgment and sentence of the Fayette
Circuit Court is reversed, and this matter is remanded to the circuit court for further
proceedings in accordance with this opinion and with directions that the charge in
the indictment be amended to sodomy in the third degree.
SHAKE, SENIOR JUDGE, CONCURS.
KELLER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Adele Burt Brown
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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