FRANK S. RODEFER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: September 25, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1996-CA-003072-MR
FRANK S. RODEFER
v.
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 95-CR-00081
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, EMBERTON and GUIDUGLI, Judges.
EMBERTON, JUDGE.
The appellant, Frank S. Rodefer, was convicted
of sexual abuse in the first degree and sentenced to four years’
imprisonment.
He alleges that he was acquitted of sexual abuse
in a prior trial and his retrial and conviction violates double
jeopardy principles.
We disagree.
Appellant was indicted on September 6, 1995, for two
counts of sexual abuse in the first degree and one count of rape
in the first degree.
On April 10, 1996, a jury returned a
verdict of not guilty of Count I, sexual abuse in the first
degree and Count III, rape in the first degree, but reported that
it was deadlocked on Count II, sexual abuse in the first degree.
The trial court set the remaining count for retrial.
On June 26, 1996, appellant filed a motion for the
Commonwealth to specify the nature of the offense to be tried
noting that the indictment was not fact specific on either count
of sexual abuse.
The indictment referred to one count of sexual
abuse in the fall of 1994, and another in the fall or winter of
1994.
At the first trial S.B. testified to two separate acts of
sexual abuse.
The first occurred when she and appellant were
sitting on a couch and appellant put his hand down her pants.
The other act occurred in the fall or winter of that same year
when S.B. was sleeping in the bed with appellant who forced S.B.
to touch his genitals.
S.B. was unable to specify the date of
either event.
On June 28, 1996, the trial court held a hearing on
appellant’s motion.
It is clear from what transpired at the
hearing that there was an agreement among counsel and the court
that appellant was being retried for his act of forcing S.B. to
touch his genitals.
On July 10, 1996, the trial court entered
the following order:
This matter being before the Court upon
the Defendant’s motion for the Commonwealth
Attorney to specify which charge of Sexual
Abuse the Defendant would be tried for on
July 9, 1996 and the parties and the Court
being in agreement in their understanding
that the charge involved is the charge that
-2-
the Defendant forced the complaining witness
to touch his “private parts” and that being
the charge and fact pattern the Commonwealth
would attempt to prove and the Defendant
being entitled to such knowledge prior to the
trial and the Court being sufficiently
advised;
IT IS HEREBY ORDERED that the count for
which the Defendant will stand trial on July
9, 1996 is and will be that count involving
the allegation that the Defendant forced the
child to touch his genitals.
It is elementary that if the charge as set forth in the
trial court’s order is that on which the first jury was unable to
reach a verdict, a retrial on the same charge does not violate
double jeopardy principles.
S.W.2d 530, 531 (1977).
Trowel v. Commonwealth, Ky., 550
If, however, as appellant suggests he
was again tried for the same act for which he was acquitted,
double jeopardy requires reversal of his conviction.
Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984).
Appellant concedes that his double jeopardy claim is
unpreserved.
Our Supreme Court, with reluctance, has accepted
the legal proposition that such a claim need not be preserved.
In Baker v. Commonwealth, Ky., 922 S.W.2d 371 (1996), the court
explained the difficulty faced by an appellate court when
reviewing an issue not presented below.
[W]e have held in Sherley v. Commonwealth,
Ky., 558 S.W.2d 615, 618 (1977), and Gunter
v. Commonwealth, Ky., 576 S.W.2d 518, 522
(1978), that failure to object on the grounds
of double jeopardy does not constitute a
waiver of the right to raise the issue for
the first time on appeal. This view appears
-3-
to be based on Menna v. New York, 423 U.S.
61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), a
per curiam opinion which held that a plea of
guilty after an unsuccessful plea of double
jeopardy would not constitute waiver; that
the merits of the double jeopardy claim
should be reviewed on appeal. Menna, 423
U.S. at 62, 96 S.Ct. at 242. From Menna to
Sherley and Gunter is a significant leap of
logic and we now question its soundness. A
principal reason for doubting the soundness
of the rule, in addition to the general
reasons for requiring preservation, is the
difficulty of analyzing a double jeopardy
claim when there is no context from the trial
court. In such a circumstance, an appellate
court must decide from the entire record
whether double jeopardy principles have been
violated on any one of multiple bases. As
such, appellant’s counsel is at liberty to
throw every possible double jeopardy theory
at the Court without having had to analyze
and present such claims in the trial court.
Deciding issues in such a manner is fraught
with danger of error or omission and we can
think of no compelling reason for such
deference to double jeopardy principles. As
with other rights, constitutional rights may
be waived by failure to timely and properly
present the issue. West v. Commonwealth,
Ky., 780 S.W.2d 600, 602 (1989).
Nevertheless, we will observe the Sherley
rule in this case and address the merits of
appellant’s double jeopardy claim.
Id. at 374.
In this case, whether appellant’s double jeopardy claim
can survive on the merits is dependent upon a determination as to
which charge he was initially acquitted.
It is this issue, not
the double jeopardy claim, which we find that appellant has
waived, and therefore, we affirm his conviction.
The court conducted a hearing to determine this precise
issue.
A review of that proceeding reveals that the colloquy
-4-
between the court and counsel established that all agreed
appellant was acquitted of the charge of touching S.B. and was
being retried on the charge of forcing S.B. to touch his genitals
while in bed with her.
Appellant’s double jeopardy claim is
fraught with the dangers envisioned by the court in Baker, supra.
Under the guise of an unpreserved double jeopardy claim,
appellant seeks review of the trial court’s finding as to which
act he was being retried for.
After review of the record, we are
convinced that appellant agreed that the first jury was unable to
reach a verdict on the sexual abuse charge arising from the act
of forcing S.B. to touch his genitals.
The judgment of the Harlan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
A. B. Chandler
Attorney General
Amy F. Howard
Assistant Attorney General
Frankfort, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
