DANA TONY BANKS V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 17, 2010
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2009-SC-000161-MR
DANA TONY BANKS
V
ON APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
NO . 07-CR-00112
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
Appellant, Dana Tony Banks, appeals from a judgment entered upon a
jury verdict by the Hardin Circuit Court convicting him of nine counts of firstdegree sodomy, five counts of incest, and four counts of first-degree sexual
abuse. He was sentenced to a total term of life imprisonment . Banks now
appeals as a matter of right. Ky. Const. ยง 110(2) (b) .
Before us, Banks raises various arguments relating to the sufficiency of
the evidence and the jury instructions . More specifically he contends that he
was entitled to a directed verdict on the sodomy charges, that the sodomy
instructions were insufficiently differentiated, that he was entitled to a directed
verdict on the incest charges, and that the jury was improperly instructed on
the sexual abuse convictions. For the reasons stated below, we affirm in part,
reverse in part, and remand for proceedings consistent with this opinion.
FACUTAL AND PROCEDURAL BACKGROUND
Banks has two daughters, C.B., born on July 15, 1996, and T.B ., born
on April 20, 1995 .
On June 9, 2005, Kentucky State Police received a complaint of possible
sexual crimes committed by Banks against his two daughters. Later that day,
Banks made a statement to Detective David Norris during which he admitted to
committing sex acts upon the children, including acts of sodomy. He confessed
that he engaged in criminal sexual conduct against the children for about a
three-year period extending from March 2002 to March 2005. Detective Norris
asked Banks how many times this occurred and Banks responded about six
times with each daughter. During the course of the investigation, Banks made
additional statements confessing to sexual crimes committed against the
children .
On February 27, 2007, Banks was indicted on twelve counts of firstdegree sodomy, six counts of incest, and six counts of first-degree sexual
abuse . As further discussed below, at trial the children testified generally to
instances of sexual abuse, but for the most part were unable to recount
specific dates or distinguishing details concerning the crimes. Banks's
confessions were admitted, but those statements likewise contained little in the
way of distinguishing details, although they did identify that the last occasion
occurred in March 2005 on an occasion when he ingested ecstasy. The
medical evidence was inconclusive regarding whether the children had been
sexually abused . After the Commonwealth completed its case, Banks rested
without calling any witnesses on his behalf.
Before the case was submitted to the jury, the Commonwealth dismissed
two counts of first-degree sodomy, one count of incest, and two counts of firstdegree sexual abuse . The jury returned guilty verdicts on nine of the ten
remaining counts of first-degree sodomy, five counts of incest, and four counts
of first-degree sexual abuse. The jury recommended punishments of life
imprisonment for each sodomy count, ten years' imprisonment for each incest
count, and five years' imprisonment for each sexual abuse count, and
recommended that the sentences run concurrently . On February 24, 2009, the
trial court entered a judgment consistent with the jury's verdict and sentencing
recommendation . This appeal follows.
I. SUFFICIENY OF THE EVIDENCE - SODOMY
Banks contends that the Commonwealth presented insufficient evidence
to convict him of the nine sodomy counts,' and thus the trial court erred by
denying his motion for a directed verdict. Banks was indicted for twelve counts
of sodomy, six against each child . One count against each child was dismissed
1 In his brief Banks addresses his sufficiency of evidence argument on the sodomy
counts and his challenge to the sodomy instructions together under Argument I.
For clarity, we address the two arguments in separate sections . Banks' arguments
concerning the sodomy instructions are addressed in the following section.
prior to submission of the case to the jury. The jury acquitted Banks of one of
the remaining ten counts, resulting in a total of nine sodomy convictions.
On motion for directed verdict, the trial court must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth .
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) . If the evidence is
sufficient to induce a reasonable juror to believe beyond a reasonable doubt
that the defendant is guilty, a directed verdict should not be given. Id. For the
purpose of ruling on the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserve for the jury questions as to the
credibility and weight to be given to such testimony. Id. "On appellate review,
the test of a directed verdict is, if under the evidence as a whole, it would be
clearly unreasonable for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal ." Id. (citing Commonwealth v. Sawhill, 660
S .W.2d 3 (Ky. 1983)) . "[T]here must be evidence of substance, and the trial
court is expressly authorized to direct a verdict for the defendant if the
prosecution produces no more than a mere scintilla of evidence." Benham, 816
S .W .2d at 186-87 .
The evidence presented to support the sodomy charges is as follows.
Detective Norris testified concerning his June 2005 interview with Banks and
played an audio tape of the statement. In this statement, Banks described
sexually abusing the children . Banks testified that he would go into the
children's rooms while they were asleep, start touching and rubbing them, and
then commit acts of sodomy against them . Specifically, he confessed that he
would digitally penetrate, make oral contact with, and lay his penis on their
anuses. Banks stated that he did this over a three-year period . The one
specific date he identified as engaging in the conduct was March 17, 2005, on
an occasion when he ingested ecstasy. When asked how many times the abuse
occurred over the three-year period, Banks responded about six times with
each child.
T.B . had a very difficult time testifying . She testified that "things
happened" when she was eight or nine and attending a certain elementary
school . Due to her difficulty testifying she was excused from the stand but
later returned . With continued difficulty she then testified that Banks "raped"
her while the family was living in Elizabethtown. She testified that the "rape"
happened "at night" when no one else was around. She said she was around
six when it happened. T.B. also testified to an occasion when she felt
something "wet" on her "rear end ." She stated that she was sure that what she
felt was Banks's tongue. T.B . also testified regarding an occasion in the first
grade when she had to stay home from school because of an eye infection and
Banks did something to her, but did not describe specific acts which occurred
on that occasion. She also referred to an occasion when she and her sister had
scratched up their bed, but again did not provide specifics about what Banks
did on that occasion.
C .B . testified that she had witnessed "something happen" between T.B .
and Banks in her room. She further testified that things would happen
between her and Banks "during the day" and at night, but she could not
remember how many times those things happened . She also testified that
Banks "raped her" when she was seven or eight; she at first said she was not
sure how many times it happened, but then testified it happened "once a day
and just one time at night." C .B. testified that she would be asleep when she
would feel Banks begin to touch her "with his hands and with his private ."
She testified that Banks would "put his private inside" the "private" between
her legs and "sometimes stuck his hand up her butt." She then testified
concerning an event that occurred in her parents' room during which she
witnessed Banks "put his private inside" T.B., she thought "in the back." She
did not remember how old she was but believed T.B. was six or seven at the
time .
Pursuant to Benham, we assume Banks's confession to be true ; that is
that he committed acts of sodomy against each of his daughters as admitted in
his statement to police . 2 Banks confessed that he did this on about six
occasions against each daughter, and from this we draw the inference that he
did, in fact, commit a total of twelve acts of sodomy against his children during
the three year period from March 2002 to March 2005. C .B. and T.B.
2 RCr 9 .60 provides that a confession not made in open court will not warrant a
conviction unless corroborated by other proof that such an offense occurred . Here,
the children's testimony provides the necessary corroboration . Lofthouse v.
Commonwealth, 13 S .W.3d 236 (Ky. 2000) (requirement that defendant's out-ofcourt statements must be corroborated to support conviction relates only to proof
that a crime was committed, not to whether the defendant committed it; once the
corpus delicti has been established, the fact that the defendant committed the
crime can be proven entirely by his own confession) .
corroborated Banks's confession with their testimony of multiple instances of
abuse . Upon drawing all inferences from the evidence in favor of the
Commonwealth, we cannot conclude that it was unreasonable for the jury to
have found the defendant guilty of nine counts of sodomy . There was sufficient
evidence presented by the Commonwealth to submit the case to the jury. Id.
The trial court did not err by denying Banks's motion for a directed verdict on
the sodomy charges.
II . THE SODOMY INSTRUCTIONS SUFFICIENTLY DIFFERENTIATED
BETWEEN INCIDENTS EXCEPT IN TWO INSTANCES
Citing Miller v. Commonwealth, 283 S.W .3d 690 (Ky. 2009), Banks next
contends that the jury instructions pertaining to the sodomy counts
insufficiently distinguished the incidents so as to assure an unanimous verdict
as to the convictions.
"[I]t is now settled that a trial court errs in a case involving multiple
charges if its instructions to the jury fail to factually differentiate between the
separate offenses according to the evidence." Id. at 695. If the jury
instructions do not include factual differentiation between the charges, it is
reversible error, even if the error is unpreserved. Id. See also Harp v.
Commonwealth, 266 S.W.3d 813 (Ky. 2008), Bell v. Commonwealth, 245 S .W.3d
738, 744 (Ky. 2008) (overruled on other grounds by Harp, 266 S .W.3d 813) ;
and Miller v. Commonwealth, 77 S.W.3d 566 (Ky. 2002) .
In reviewing the sodomy instructions, we first list those relating to T.B .,
followed by those relating to C .B. In the caption of each instruction the
indictment count no . and the instruction no . were listed; that information is
indicated as the lead-in to each instruction presented below. Further, each
jury instruction began with the preamble "You will find the Defendant guilty of
First-Degree Sodomy under this instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:" ; and concluded with
the paragraph "AND B. That at the time of such intercourse, [the child] was
less than 12 years of age." We omit this repetitive language . Finally, language
that is distinguishing in factual detail from the other sodomy instructions is
emphasized .
T.B . Sodo mv Instructions
Count 1 / Instruction No. 5 - A. That in this county during a period of time
from the 17th day ofMarch, 2002, through the 17th day of March, 2005, and
when T.B. was age 6, while T.B . was sleeping and before the finding of the
Indictment herein, he engaged in deviate sexual intercourse with T.B. by
placing his tongue on her anus;
Count 2 / Instruction No. 6 - A. That in this county on or about the 17th day of
March, 2005, while T.B. was sleeping and before the finding of the Indictment
herein, he engaged in deviate sexual intercourse with T.B. by making oral
contact with T.B.'s anus.
Count 3 / Instruction No . 7 - A. That in this county during a period of time in
2005, while T.B . was sleeping and before the finding of the Indictment herein,
he engaged in deviate sexual intercourse with T.B. by licking her anus.
Count 7 / Instruction No . 11 - A. That in this county during a period of time
from the 17th day of March, 2002, through the 17th day ofMarch, 2005, while
T.B. was in herfather's room and before the finding of the Indictment herein, he
engaged in deviate sexual intercourse with T. B. by placing his penis in her
anus. *BANKS WAS ACQUITTED OF THIS COUNT .
Count 8 / Instruction No. 12 - A. That in this county during a period of time
from the 17h day of March, 2002, through the 17th day of March, 2005, while
T.B . was sleeping and before the finding of the Indictment herein, he engaged
in deviate sexual intercourse with T. B. by touching his penis to her anus.
C .B. Sodomy Instructions
Count 4 / Instruction No. 8 - A. That in this county during a period of time in
2005, while C.B. was sleeping and before the finding of the Indictment herein,
he engaged in deviate sexual intercourse with C .B. by licking her anus. *THIS
INSTRUCTION IS THE SAME AS INSTRUCTION 10.
Count 5 / Instruction No. 9 - A. That in this county during a period of time
from the 17h day ofMarch 2002, through the 17h day ofMarch 2005, while C .B.
was sleeping and before the finding of the Indictment herein, he engaged in
deviate sexual intercourse with C .B. by licking her anus.
Count 6 / Instruction No. 10 - A. That in this county during a period of time in
2005, while C.B. was sleeping and before the finding of the Indictment herein,
he engaged in deviate sexual intercourse with C .B. by licking her anus. *THIS
INSTRUCTION IS THE SAME AS INSTRUCTION 8 .
Count 10 / Instruction No. 14 - A. That in this county during a period of time
from the 17th day ofMarch, 2002, through the 17th day ofMarch, 2005, while
C.B. was in herfather's room and before the finding of the Indictment herein,
he engaged in deviate sexual intercourse with C . B. by placing his penis in her
anus.
Count 11 / Instruction No. 15 - A. That in this county during a period of time
from the 17th day ofMarch, 2002, through the 17h day ofMarch, 2005, while
C .B. was sleeping in her room and before the finding of the Indictment herein,
he engaged in deviate sexual intercourse with C . B. by touching his penis to her
anus.
The jury instruction conference between the trial court, defense counsel,
and the Commonwealth demonstrated an awareness that differentiation
between the instructions was required to comply with Kentucky law, and this
concern was translated into the jury instructions, beginning with the
differentiation of each instruction by relating it to a separate count in the
indictment .
Banks argues that there is overlap in Instructions No . 6 and No . 7 in
relation to the time period when the criminal acts occurred .3 Instruction No . 6
refers to the act addressed in that instruction occurring "on or about the 17th
day of March, 2005," and Instruction No . 7 refers to the act occurring "during a
period of time in 2005 ." Obviously, there is an overlap between the two time
periods . Additionally, the acts described - - "by making oral contact with T.B's
anus" in Instruction No. 6, and "by licking her anus" in Instruction No. 7 - are for all intents and purposes synonymous . Banks contends that this
overlap in time and conduct violates the distinguishment requirements of
Miller. We agree.
An examination of Miller discloses that its principal purpose is to ensure
that the instructions for each count are distinguishable enough to permit the
jury to relate each verdict to a specific crime shown by the evidence . Clearly,
simply varying the words of the instruction for each count, without any
substantive difference in meaning, does not satisfy Miller. However, the test is
not simply one of mutual exclusivity. So long as the instruction for each count
enables the jury to identify the instruction with a specific crime established by
the evidence and avoids the likelihood of confusion with other offenses
3 He also refers to an overlap in time with respect to Instruction No. 5, which refers to
"during a period of time from the 17th day of March, 2002, through the 17th day of
March, 2005" ; however, Instruction No. 5 also limits the time period for the act to
when T.B. was age six. T.B . was born April 20, 1995, and thus the act referred to
could not have occurred in 2005. Because of the age limitation, there was no time
overlap between Instruction 5 and Instructions 6 and 7.
presented against defendant in the same trial, then the instructions are
adequately differentiated . Here, this standard was not met.
Except for the more specific date provided in Instruction 6, Instruction 6
and Instruction 7 are essentially identical. The conduct described is the same .
There is no substantive difference between "making oral contact" and "licking."
Moreover, "on or about the 17th day of March, 2005," as stated in Instruction 6,
is encompassed within "during a period of time in 2005" as stated in
Instruction 7. Because of this multiple overlapping, there is insufficient
differentiation to meet the requirements as explained in Miller.
While the Instructions are also differentiated by reference to the Count
Number in the indictment, and the language of the indictment provided that
the conduct identified in each count occurred "at a time different from" the
conduct charged in any other count, it is unreasonable to suppose that the
fleeting reference to this differentiation during the reading of the indictment
would be sufficiently noted by the jury to instill confidence that the difference
was remembered by the jury and considered in its deliberations. Under Miller,
we would expect the instructions alone to adequately differentiate the offenses
so that one need not cross-reference the indictment, which the jury would
never see . In this vein, we note that if Instruction No . 7 had simply
incorporated the language "at a time in 2005 other than March 17," there
would have been sufficient differentiation to have satisfied the requirements of
Miller. As such, we would counsel, as a final assurance of differentiation, that
trial courts use this construct where additional clarity is needed.
While Instruction No. 6 and Instruction No . 7, in combination, failed to
satisfy the requirements of Miller, nonetheless, it is necessary only that we
vacate the conviction related to Instruction No. 7. By clearly identifying March
17, 2007, as the date of the crime in Instruction No . 6, we may have confidence
that the jury unanimously voted that an act of sodomy occurred on that date .
However, with respect to Instruction No . 7, we cannot say with confidence that
one or more jurors did not vote for conviction under that Instruction based
upon the March 17, 2005, conduct. We accordingly vacate the conviction
related to Instruction No. 7. Upon retrial, if any, for the charge related to
Instruction 7, the trial court should assure that it is properly differentiated
from any other charge.
An examination of the other individual sodomy instructions for T.B .
reveals that there is complete differentiation between all instructions in terms
of date, location, T.B.'s age, and conduct . Consequently, unlike Miller, there is
an absolute distinction between the charges in these instructions so as to
remove any chance that the jurors were unable to distinguish between the
multiple counts of sodomy . In light of the differentiation in the instructions,
Banks was not denied a unanimous verdict in relation to these sodomy
convictions. There was no error in the sodomy instructions relating to T.B.
Similarly, an examination of the sodomy instructions referring to C .B.
discloses a comprehensive distinction among the instructions with the
exception of Instruction 8 and Instruction 10 . These two instructions are
identical, and thus fall within the prohibition as explained in Miller. As such,
we are constrained to reverse the convictions relating to those two instructions .
Upon retrial, if any, instructions upon these two counts should be
differentiated . There was no error in the remaining sodomy instructions, and
those convictions are affirmed.
III . BANKS WAS NOT ENTITLED TO A DIRECTED
VERDICT ON THE INCEST CHARGES
Banks next contends that he was entitled to a directed verdict on the
three counts of incest against C.B. contained in Instructions 20 - 22 (Counts
16 - 18 of the indictment) . He argues that the instructions define the conduct
supporting the charges as Banks having had "deviate sexual intercourse" with
C .B., whereas C.B. testified to instances of vaginal sexual intercourse with her.
Banks argues that C.B . differentiated between her vagina, calling it
"between her legs" and her anus, calling it "below her back," and described that
Banks "put his private" "between her legs," thus describing sexual intercourse,
not "deviate sexual intercourse." He further argues that C .B . testified that
Banks "raped" her, which in its normal sense describes vaginal intercourse.
At trial, the Commonwealth represented that incest Instruction
20/Count 16 referred to sodomy Instruction 4 /Count 8; that incest Instruction
21 / Count 17 referred to sodomy Instruction 10/ Count 6 ; and that incest
Instruction 22 /Count 18 referred to sodomy Instruction 14/Count 10 . Each of
these instructions refers to deviate sexual intercourse.
As previously set forth, we review Banks's argument claiming entitlement
to a directed verdict on the three incest counts pursuant to the standard
contained in Benham.
Banks' argument is unpersuasive because it focuses solely on C .B.'s
testimony. However, Banks confessed to six instances of sodomy against C.B .,
including instances of oral sodomy as described in Instructions 20 - 22 . Upon
accepting Banks's confession as true and drawing all consequent inferences in
favor of the Commonwealth, we are persuaded that the evidence was sufficient
to present the charges to the jury.
Guilty verdicts were returned under Instructions 4, 10, and 14, the
sodomy charges underlying the incest Instructions. However, as previously
discussed, Instruction 10 was identical and redundant with Instruction 8, thus
requiring that the sodomy conviction under Instruction 10 be vacated pursuant
to Miller, 283 S .W.3d 690. Because the underpinning of incest Instruction 21
was the conduct relating to Instruction 10, we are constrained to similarly
vacate the incest conviction associated with Instruction 21 . In the event of
retrial, upon the presentation of appropriate proof, the incest charge relating to
Instruction 21, may again be submitted to a jury. Id.
IV. THE JURY WAS PROPERLY INSTRUCTED
ON THE SEXUAL ABUSE CHARGES
Banks's final argument is that the jury was improperly instructed on the
four sexual abuse convictions4 because the conduct supporting these charges
was merely a continuing course of the conduct supporting the sodomy and
incest charges . He argues the preliminary rubbing and touching supporting
the sexual abuse charges was part of a single continuous act culminating in
the acts of sodomy, and, accordingly, those acts merged with the sodomy and
did not constitute a separate crime .
In Bills v. Commonwealth, 851 S .W.2d 466 (Ky. 1993), the defendant was
charged with, among other things, sodomy and first-degree sexual abuse. The
defendant forced the victim to drive to a remote area where he removed her
clothing and forced her to perform oral sex on him. We held that the acts of
removing the clothing and the forced sodomy did not merge, stating, "The act of
touching while removing the clothing was totally unnecessary and independent
of the act of oral sodomy ." Id. at 471 -- 472 . Similarly, the acts of touching and
rubbing preliminary to the sodomy in this case were totally unrelated to the
actual sodomy. The abusive acts of touching and rubbing did not merge into
the acts of sodomy, and Banks was properly convicted of the first-degree sexual
abuse charges . Id.
Banks' reliance on Stark v. Commonwealth, 828 S.W.2d 603 (Ky. 1991),
(overruled on other grounds by Thomas v. Commonwealth, 931 S.W .2d 446 (Ky.
1996)), is misplaced . In Stark we held that two robbery charges would not lie
when business funds and an individual's property were taken during a single
4 One count of first-degree sexual abuse against each child was dismissed by the
Commonwealth prior to submission to the jury .
robbery incident on the basis that "[t]his is simply a continuing course of
conduct and a single criminal impulse ." We stated:
Herein we have but a single act constituting a single offense and
violation of only one statute (KRS 515.020) . When the impulse is
single, only one indictment lies. The present interpretation of
Section 13 of the Kentucky Constitution which prohibits an
accused from being placed in double jeopardy for the same offense,
prohibits the Commonwealth from carving out of one act or
transaction two or more offenses. Ingram v. Commonwealth, Ky.,
801 S.W.2d 321 (1990) . The prohibition extends to indicting
appellant both for robbery in the first degree of Mr. Muth,
individually, and indicting appellant for the robbery of Mr. Muth in
his counterpart status as Sav-a-Step Food Mart.
Id. at 607 .
In Stark, by any standard there was but a single act by the defendant,
during which two forms of property (personal and business) were stolen. In
contrast, as noted above, in the present case two unrelated acts occurred : the
acts of rubbing and touching, which comprise the first-degree sexual abuse
convictions, and the separate and unrelated acts of sodomy, which comprise
the first-degree sodomy convictions . As such, Stark is not applicable to the
present facts.
V. CONCLUSION
For the foregoing reasons the judgment of the Hardin Circuit Court is
affirmed in part, reversed in part, and remanded for additional proceedings
consistent with this opinion.
Minton, C.J., Abramson, Noble, and Schroder, JJ., concur. Scott, J .,
concurs in part and dissents in part by separate opinion, in which
Cunningham, J ., joins. Cunningham, J ., concurs in part and dissents in part
by separate opinion.
SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART:
Although I concur with the majority on the other issues, I must dissent as the
instructional error here was absolutely harmless . I say this because Appellant
admitted to twelve counts of sodomy with the children, was tried on ten of them
(the other two having been dismissed during trial) and was convicted of nine of
them. If he admitted to twelve, but was only convicted of nine, how could a
"unanimity error" ever be harmful? In my opinion, it could not . Thus, I
dissent on this issue and would affirm the conviction . Cunningham, J., joins .
CUNNINGHAM, J., CONCURRING IN PART AND DISSENTING IN PART:
Justice Venters does an excellent job of sorting out a confusing array of
numerous counts and instructions . I concur for the most part, but dissent as
to the Court's reversal on instructions 8 and 10 . These instructions were
identical, but there was sufficient evidence to convict on both . And since the
jury convicted on both, I see no unanimity problem as to these two
instructions. Although they were overlapping, as opposed to identical, I would
apply the same logic to instructions 6 and 7 . Again, there was sufficient and
differential evidence on both, and the jury convicted on both. This is
consistent with my dissent in Miller v. Commonwealth, 283 S .W.3d 690 (Ky.
2009) . I concur in every other aspect of the opinion and also commend the
trial court's work in dealing with a complex set of instructions .
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
William Bryan Jones
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
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