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RENDERED: SEPTEMBER 22, 2011
NOT TO BE PUBLISHED
S5ujarrtur Gurf of Ifirttfurkv
2010-SC-000410-MR
JAMES C. POTTER, II
V.
APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
NO. 08-CR-00386
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
James C. Potter, II appeals as a matter of right, Ky. Const. § 110, from a
judgment of the McCracken Circuit Court convicting him of multiple sexual
offenses against the victim, J.A. As a result of these convictions, he was
sentenced to a total punishment of life imprisonment.
Potter now raises the following claims of error for our review: (1) that the
trial court erred by permitting the Commonwealth to amend the indictment
following the completion of the Commonwealth's evidence; (2) that the jury
instructions for first-degree sexual abuse found in Instruction Nos. 5 and 8
resulted in a double jeopardy violation, and that the jury instructions for
second-degree sexual abuse found in Instruction Nos. 16 and 19 resulted in a
double jeopardy violation; (3) that the trial court erred when it denied his
request for a "taint hearing" to determine whether the victim's version of the
facts had been manipulated; (4) that the trial court erred by allowing the
Commonwealth to ask leading questions to the child witness; (5) that the trial
court erred by allowing the Commonwealth to display "sex toys" that had not
been used on the victim; and (6) that the trial court violated Kentucky law
when it imposed misdemeanor fines upon him even though he is an indigent
defendant.
Because the instructions for two of the first-degree sexual abuse
convictions and two of the second-degree sexual abuse convictions resulted in
double jeopardy violations under Miller v. Commonwealth, 283 S.W.3d 690 (Ky.
2009), we reverse one of each of these two sets of convictions. Additionally,
because the imposition of a $500.00 fine against Potter for each of his
misdemeanor convictions of two counts of second-degree sexual abuse and one
count of attempted second-degree sodomy violates KRS 534.040(4), we further
reverse the imposition of these misdemeanor fines. We affirm upon all other
issues.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim, J.A., was born in December 1994. Potter was a friend of
J.A.'s mother and frequently babysat J.A. and her younger sister while their
mother worked. Potter began abusing J.A. in July 2002.
In July 2008 J.A. disclosed that over an approximately six-year period,
beginning when she was seven-years-old, Potter had engaged in multiple
instances of sexual contact with her. After a police investigation Potter was
indicted for six counts of first-degree sexual abuse; four counts of first-degree
sodomy; six counts of second-degree rape; and three counts of second-degree
sexual abuse. The indictment alleged that Potter had committed the offenses
(
from approximately July 8, 2002, through May 2008.
At trial J.A. described numerous sexual offenses committed against her
by Potter.' Potter's defense was denial that he had committed any of the
alleged crimes. At the conclusion of its case-in-chief the Commonwealth moved
to amend the indictment to correspond with the evidence presented through
J.A.'s trial testimony. The effect was to merge the three counts of first-degree
rape into a single count; merge the four counts of first-degree sodomy into a
single count; and _merge three of the first-degree sexual abuse counts into a
single count.
At the conclusion of the evidence the jury returned a verdict convicting
Potter of three counts of first-degree sexual abuse; one count of first-degree
rape; one count of first-degree sodomy; two counts of second-degree sexual
abuse; one count of second-degree sodomy; two counts of second-degree rape;
and one count of attempted second-degree sodomy. Pursuant to the jury's
recommendation, Potter was sentenced to a total punishment of life
imprisonment.
This appeal followed.
1
Based upon the arguments raised by Potter, a detailed discussion of the various
crimes is unnecessary.
II. THE INDICTMENT WAS PROPERLY AMENDED
At the conclusion of its case-in-chief the Commonwealth moved to amend
the indictment to conform to the evidence presented through J.A.'s trial
testimony. Potter contends that the trial court erred by granting the
Commonwealth's motion to amend.
More specifically, the Commonwealth sought the following amendments:
Count 5 of the indictment for first-degree rape
1.
(Instruction 6) was amended to reflect a change in the time
period for commission of the crime from "in the three month
period after December 16, 2003" to in the period of "July 8,
2002 through June of 2005." Because the time-frame for
Count 5 as amended overlapped with the first-degree rape
charges contained in Counts 9 and 12, and the charges were
otherwise indistinguishable, those counts were dismissed.
Count 8 of the indictment for first-degree sodomy
2.
(Instruction 7) was amended to reflect a change in the time
period from "in the fall of 2004" to the period of "July 8,
2002 through June of 2005." Because the new time fame
overlapped with the time periods in the first-degree sodomy
charges contained in Counts 3, 6, and 13, and the charges
were otherwise indistinguishable, these charges were
dismissed.
3. Count 4 of the indictment for first-degree sexual abuse
(Instruction 5) was amended to change the time frame from
"the three month period after December 16, 2003" to "the
approximate period after July 8, 2002 through June of
2005." Because Counts 1, 2, 7, and 10 encompassed this
same time period, and the charges were otherwise
indistinguishable, those charges were likewise dismissed.
The trial court granted the Commonwealth's motion to amend over
Potter's objection. Defense counsel argued that the amendment should not be
granted because this made it "impossible" for her to do anything in Potter's
4
defense because her trial preparations were based upon the original dates as
alleged in the indictment. She further argued that because the Commonwealth
had failed to meet its burden in proving the charges as originally stated in the
indictment, the proper remedy was dismissal of the charges rather than
amendment of the indictment. Potter reiterates these arguments upon appeal.
RCr 6.16 states:
The court may permit an indictment, information, complaint, or
citation to be amended at any time before the verdict or finding if
no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced. If justice requires,
however, the court shall grant the defendant a continuance when
such an amendment is permitted.
The amendment of the indictment satisfies RCr 6.16 because it was
made before the verdict and did not charge Potter with a new or different
offense. Owens v. Commonwealth, 329 S.W.3d 307, 315 (Ky. 2011); Hawkins
v. Commonwealth, 481 S.W.2d 259, 260-261 (Ky. 1972) (An indictment may be
amended at the close of all of the proof).
Potter had ample notice of the nature of the charges against him to
prepare and present an effective defense, and he has failed to explain with
specificity how he was prejudiced by the amendments. Potter's defense was
that he was not involved with the criminal acts charged, regardless of the time
period, and he does not suggest that the amendments undermined any
particular alibi or any other particular aspect of his defense. Further, the
amendments were compatible with the well established rule that young child
victims are not required, or expected, to identify with specificity the date a
particular instance of abuse occurred. Applegate v. Commonwealth, 299
S.W.3d 266; 270 (Ky. 2009). Moreover, it is permissible to merge multiple
occasions of sexual crimes into a single charge. Id. In addition, as noted by
the Commonwealth, the amendments were arguably to Potter's benefit in the
sense that two of the first-degree rape charges, three of the first-degree sodomy
charges, and three of the first-degree sexual abuse charges were dismissed as a
result of the amendments. As such, Potter has failed to show that his
substantial rights were prejudiced as a result of the amendments.
In any event, rather than dismissal of the indictment, the appropriate
relief under RCr 6.16 when "justice requires" it, is a continuance, which Potter
did not request. Nor does Potter now suggest how he could have benefitted
from a continuance. Because justice did not require a continuance under the
circumstances of this case, the trial court did not abuse its discretion by
granting the Commonwealth's motion to amend the indictment.
Wolbrecht v.
Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997) ("Our case law provides that
an indictment may be amended at any time to conform to the proof providing
the substantial rights of the defendant are not prejudiced and no additional
evidence is required to amend the offense.")
III. JURY INSTRUCTIONS 5 AND 8 AND 16 AND 19
RESULTED IN DOUBLE JEOPARDY VIOLATIONS
Potter next contends that double jeopardy violations occurred as a result
of his two first-degree sexual abuse convictions under Instructions 5 and 8,
and for his two second-degree sexual abuse convictions under Instructions 16
6
and 19. Potter concedes that the issue is not preserved but requests palpable
error review.
"[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." Miller v. Commonwealth, 283
S.W.3d 690, 695 (Ky. 2009). If the jury instructions do not include factual
differentiation between the charges, it is reversible error, even if the error is
unpreserved. Banks v. Commonwealth, 313 S.W.3d 567, 571-572 (Ky. 2010).
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 presented against defendant in the
same trial, then the instructions are adequately differentiated.
Id. at 573. Here, as argued by Potter and conceded by the Commonwealth, this
standard was not met under Instruction Nos. 5 and 8 and Instruction Nos. 16
and 19.
1. Instruction Nos. 5 and 8
Instruction No. 5 stated as follows:
You will find the defendant, James C. Potter II, guilty of First
Degree Sexual Abuse under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county in the approximate period after July 8, 2002
through June of 2005, and before the finding of the Indictment
7
herein, he subjected [J.A.] to sexual contact at the defendant's
home by touching her vagina with his hands;
AND
B. That at the time of such contact, [J.A.] was less than 12 years
of age. (Emphasis added).
Instruction No. 8 provided as follows:
You will find the defendant, James C. Potter II, guilty of First
Degree Sexual Abuse under this Instruction if, and only if, you
(
believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county in the winter of 2004, and before the finding
of the Indictment herein, he subjected [J.A.] to sexual contact at
the defendant's home by touching her vagina with his hand while
watching a movie.
AND
B. That at the time of such contact, [J.A.] was less than 12 years
of age. (Emphasis added).
In comparing the instructions, clearly the "winter of 2004" is included
within "the approximate period between July 8, 2002 through June of 2005."
Similarly, the criminal conduct described in each instruction is the touching of
J.A.'s vagina by Potter with his hands. While the instructions are seemingly
differentiated in that Instruction 5 required that the touching have occurred at
"at the defendant's home" whereas Instruction 8 required the touching to have
occurred while they were "watching a movie," and while this may in other
circumstances be sufficient differentiation, nevertheless, here, J.A. testified
that Potter touched her vagina while they were watching a movie at his
residence, thereby negating the differentiation. Because it is possible that the
8
jury could have returned a guilty verdict on each of the instructions based
upon a single instance when Potter touched J.A.'s vagina while they were
watching a movie at Potter's residence, the instructions resulted in a double
jeopardy violation, requiring that one of the first-degree sexual abuse
convictions be reversed.
2. Instruction Nos. 16 and 19
Instruction No. 16 stated as follows:
You will find the defendant, James C. Potter II, guilty of Second
Degree Sexual Abuse under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county in the spring of 2008, and before the finding
of the Indictment herein, he subjected [J.A.] to sexual contact by
touching her vagina with his hands;
AND
B. That at the time of such contact, [J.A.] was less than 14 years
of age. (Emphasis added).
Instruction No. 19 stated as follows:
You will find the defendant, James C. Potter II, guilty of Second
Degree Sexual Abuse under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county in May of 2008, and before the finding of
the Indictment herein, he subjected [J.A.] to sexual contact by
touching her vagina with his hands;
AND
B. That at the time of such contact, [J.A.] was less than 14 years
of age. (Emphasis added).
9
For reasons similar to those stated above, a double jeopardy violation
occurred as a result of the similar wording between Instruction No. 16 and
Instruction No. 19. The criminal conduct described in the two instructions is
the same, and the only differentiation is that the timing of the conduct is
described in Instruction No. 16 as being "in the spring of 2008" whereas in
Instruction No. 19 it is described as being "in May of 2008." Obviously May
2008 was in the spring of 2008, and, it follows, there was insufficient
differentiation between the two charges. Because the jury believed that Potter
touched J.A.'s vagina in May of 2008, it necessarily also believed that he
touched her in the spring of 2008. Because this resulted in a double jeopardy
violation, one of the two second-degree sexual abuse convictions must be
reversed.
3. Conclusion
For the reasons stated, the convictions associated with Instruction 8 and
Instruction 19 are reversed.
IV. THE TRIAL COURT PROPERLY DENIED POTTER'S
MOTION FOR A "TAINT HEARING"
Potter next contends that the trial court erred by denying his request for
a "taint hearing" to determine whether J.A.'s recollection of events was unduly
influenced by her family, by her questioning by police and social workers, or by
other persons involved with the investigation of the charges. He argues that a
hearing was necessary to determine whether the events surrounding the
allegation and investigation may have resulted in manipulation of the victim's
10
memory.
In Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002), defense
counsel moved to disqualify the child victim's testimony on the grounds that it
was the product of interview techniques employed by the social worker that
were "leading, suggestive, cajoling, and coercive." In discussing the issue in
Pendleton, we cited with approval the trial court's view that "Kentucky does not
follow the holding in State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (N.J.
1994), which upheld a taint hearing to determine whether interviewing
techniques were so flawed as to distort a child witness's recollection of events
and thereby undermine the reliability of the testimony," and determined that
no error occurred as a result of the trial court's rejection of a "taint" analysis in
assessing the child victim's competency to testify.
More recently, in Jenkins v. Commonwealth, 308 S.W.3d 704 (Ky. 2010),
we considered the issue of alleged suggestive interviewing procedures of an
alleged sexual abuse victim in the context of whether a defendant should be
allowed to call a highly qualified forensic psychologist to provide expert
testimony on the scientific principle that improper interviewing practices can
result in unreliable allegations. We concluded that such expert testimony is
scientifically reliable, otherwise admissible for the same reasons as any other
qualified expert testimony would be, and that the trial court erred by excluding
the testimony. Accordingly, the holding in Pendleton is now subject to the
important caveat established in Jenkins.
11
Here, Potter did not proffer expert testimony in support of his theory, and
so this case is more akin to Pendleton than Jenkins. Nevertheless, we believe
that neither Pendleton nor Jenkins is applicable in this case. We reach this
conclusion based upon the age of the victim and Potter's conflicting theories
about why the victim implicated him in the crimes.
In Jenkins, we recognized that suggestibility (taint) relates to the
reliability of evidence, not to competency or credibility. 308 S.W.3d at 711.
Suggestibility, however, is primarily of concern with children of tender years, 2
and,furtheosntaperobimplcatedunrhfactsoiae.Th
alleged victim was fifteen years old at the time of trial. Further, Potter appears
to argue that the victim consciously made up her story to diffuse the situation
with her father, which implicates a situation far removed from the concept of
taint, whereby the concern is that the victim believes the suggested story.
J.A. was otherwise found competent to testify, and Potter makes no
opposing claim. Further, Potter was otherwise availed the opportunity to
cross-examine the victim and her interviewers concerning any efforts to
influence her testimony. We see no error.
2
See Jean Montoya, Something Not So Funny Happened on the Way to Conviction: The
Pretrial Interrogation of Child Witnesses, 35 Ariz.L.Rev. 927, 933 (1993) (maintaining
that "[s]ocial science evidence of children's suggestibility indicates that persistent
pretrial interrogation of child witnesses can impair the search for truth in
litigation," and that "preschool children can be manipulated by interviewers to level
false accusations") (emphasis added); State v. Carrizales, 528 N.W.2d 29, 36 fn 3
(Wis.App. 1995).
12
V. THE LEADING QUESTIONS TO J.A. WERE PROPER
Potter next contends that reversible error occurred when, on two
occasions, the Commonwealth suggested the answer to the question it was
asking J.A.
In the first instance the Commonwealth was asking where Potter had
placed plastic rings in her vaginal area. As J.A. struggled to describe and
explain exactly where Potter had placed the rings, the Commonwealth asked if
J.A. knew what the word "clitoris" meant and J.A. responded that she did. The
Commonwealth then asked her if that was where Potter placed the rings, and
J.A. responded that it was. Potter objected to this as leading the witness, and
the trial court overruled the objection, explaining "I think everybody else
understood what she was saying, I think she maybe couldn't remember the
word."
In the second instance, the Commonwealth was questioning J.A. about
one of the occurrences and, while doing so, used the transcript of an interview
J.A. had with Lori Brown of the Purchase Area Sexual Assault Center to refresh
her memory. As the prosecutor did this, he referred to the time frame of "the
winter of 2004" as when a particular touching occurred. In objecting to this
interjection as leading, trial counsel acknowledged that the use of interview
references was to refresh J.A.'s memory, and the trial court stated that it did
not hear the prosecutor leading the witness.
13
KRE 611(c) provides that "Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witness' testimony." Nevertheless, violations of this rule are subjected to a high
standard before reversal will be imposed. As we stated in Tamme v.
Commonwealth, 973 S.W.2d 13 (Ky. 1998), "[w]hile the use of leading questions
on direct examination is generally unacceptable . . judgments will not be
reversed because of leading questions unless the trial judge abused his
discretion and a shocking miscarriage of justice resulted."
Id. at 27.
Here, we have significant doubts that the trial court abused its discretion
in either of the instances cited; however, we need not examine that issue in
detail because, in any event, we can say with certainty that a "shocking
miscarriage of justice" did not result as a consequence of the two episodes.
Potter is not entitled to relief under this argument.
VI. THE COMMONWEALTH'S INTRODUCTION
OF POTTER'S "SEX TOYS" WAS PROPER
Potter next contends that error occurred as a result of the
Commonwealth's displaying of a bag of "sex toys" retrieved from Potter's
residence during its examination of J.A. Potter concedes that the alleged error
is not preserved, but requests palpable error review under RCr 10.26.
During its direct examination of J.A. the Commonwealth showed J.A. a
bag seized from Potter's residence which contained thirteen separate items. All
of the items were sexual in nature and included vibrators, lotion, and condoms.
J.A. testified that she had seen the bag in Potter's residence and stated that the
14
bag had "sex toys" in it. The Commonwealth went through the thirteen items
found in the bag and asked J.A. if she had ever seen the items before and if
Potter had used them on her. J.A. identified eight of the items as being ones
that she had seen before and that Potter had used on her. J.A. testified that
she had not seen the other five items.
Potter contends that the Commonwealth's displaying of the five items
J.A. had not seen was error because the items were irrelevant and/or were
inadmissible under the KRE 403 balancing test.
"A palpable error is one which affects the substantial rights of a party
and relief may be granted for palpable errors only upon a determination that a
manifest injustice has resulted from the error. This means, upon consideration
of the whole case, the reviewing court must conclude that a substantial
possibility exists that the result would have been different in order to grant
relief." Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996) overruled on other
grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008).
Most of the items in the bag had been used on J.A., and the items were
therefore relevant to establishing the various sexual offenses committed against
J.A. KRE 401. Even assuming, however, that the five items she had never
seen should not have been interjected into the trial, considering the prejudicial
effect of the eight items that were properly admitted, the marginal, additional
prejudice associated with the displaying of the other five items did not result in
a manifest injustice. From our review of the evidence, we cannot say that a
15
substantial possibility exists that the result of the trial would have been
different had the Commonwealth not displayed the five additional items to the
jury.
VII. BECAUSE POTTER IS AN INDIGENT
THE IMPOSITION OF FINES WAS IMPROPER
Finally, Potter contends that the trial court erred by imposing a $500.00
fine for each of his misdemeanor convictions of two counts of second-degree
sexual abuse and one count of attempted second-degree sodomy because he
had previously been adjudicated as indigent.
KRS 534.040 generally permits fines to be imposed for misdemeanors at
the discretion of the trial court or jury as the case may be. However, KRS
534.040(4) provides that "Mines required by this section shall not be imposed
upon any person determined by the court to be indigent pursuant to KRS
Chapter 31." Nor may court costs be levied upon defendants found to be
indigent. KRS 23A.205(2). At the time of trial, Potter was receiving the services
of a public defender, and, following his conviction, was granted the right to
appeal in forma pauperis. Potter was clearly indigent. Thus, the trial court
clearly erred in imposing a fine and court costs upon him. Simpson v.
Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994); Travis v. Commonwealth, 327
S.W.3d 456, 459 (Ky. 2010).
Potter concedes that this error is not preserved for appellate review.
"Nonetheless, since sentencing is jurisdictional it cannot be waived by failure to
object." Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985). "Thus,
16
sentencing issues may be raised for the first time on appeal and Appellant is
proceeding properly before this Court."
Cummings v. Commonwealth, 226
S.W.3d 62, 66 (Ky. 2007). Fines and costs, being part of the punishment
imposed by the court, are part of the sentence imposed in a criminal case.
Having the inherent jurisdiction to cure such sentencing errors, this Court
vacates the fines imposed for the two counts of second-degree sexual abuse
and one count of attempted second-degree sodomy.
Travis, 327 S.W.3d at 459.
VIII. CONCLUSION
For the foregoing reasons the Judgment of the McCracken Circuit Court
is affirmed in part, reversed in part, and the cause is remanded to the trial
court for entry of a new judgment consistent with this opinion.
Minton, C.J., Abramson, Noble, Schroder, and Venters, JJ., concur.
Cunningham, J. concurs in part and dissents in part with the majority in
which Scott, J., joins, in all but the issue of the jury instructions and dissents
as to that issue. He does not agree that the instructions were error, consistent
with his dissent in Banks v. Commonwealth, 313 S.W.3d 567, 576 (Ky. 2010).
17
COUNSEL FOR APPELLANT:
Steven Jared Buck
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
18
