ABNEE (JOSHUA R.) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: MARCH 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001324-MR
JOSHUA R. ABNEE
v.
APPELLANT
APPEAL FROM NICHOLAS CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 06-CR-00017
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, TAYLOR, AND WINE, JUDGES.
WINE, JUDGE: Joshua R. Abnee appeals from a judgment of conviction by the
Nicholas Circuit Court. We find that the trial court properly instructed the jury on
second-degree sodomy as a lesser-included offense of first-degree sodomy. Hence,
we affirm.
On May 1, 2006, a Nicholas County grand jury indicted Abnee on two
counts of first-degree sodomy (Kentucky Revised Statute (“KRS”) 510.070), one
count each of first-degree unlawful imprisonment (KRS 509.020), and being a
persistent felony offender in the first degree (“PFO I”) (KRS 532.080(3)). The
unlawful imprisonment and PFO I counts were dismissed prior to the first trial.
The first trial ended in a mistrial due to a discovery violation by the
Commonwealth.
The case proceeded to a second trial in April of 2008. Abnee moved
for a directed verdict at the close of the Commonwealth’s case and at the close of
proof. The trial court granted the latter motion, finding that the Commonwealth
failed to present sufficient evidence of forcible compulsion.1 However, the court
instructed the jury on second-degree sodomy over Abnee’s objection. The jury
returned a verdict of guilty on one count of second-degree sodomy and not guilty
on the other count. Thereafter, the jury fixed Abnee’s sentence at five years’
imprisonment, which the trial court imposed.
On appeal, Abnee challenges the trial court’s amendment of the
charges on three related but separate grounds. First, he argues that the trial court’s
instruction on second-degree sodomy after granting a directed verdict on the first-
1
In its brief, the Commonwealth asks this Court to review the trial court’s decision granting a
directed verdict of acquittal on the charge of first-degree sodomy. However, the Commonwealth
cannot directly appeal that issue, and it did not request a certification of the law under Kentucky
Rule of Civil Procedure (“CR”) 76.37(10) and Ky. Const. § 115. See also Murphy v.
Commonwealth, 50 S.W.3d 173, 186 (Ky. 2001). Therefore, the issue is not properly presented
on appeal.
-2-
degree sodomy violated his rights against double jeopardy. Second, he argues that
the Kentucky Constitution prohibits a conviction of a crime which is not charged in
the indictment. And third, he argues that the amendment of the charge is
prohibited because second-degree sodomy is not a lesser-included offense of firstdegree sodomy.
As an initial matter, we agree with the Commonwealth that Abnee did
not preserve these particular issues for appeal. Kentucky Rule of Criminal
Procedure (“RCr”) 9.54(2) provides that “[n]o party may assign as error the giving
or the failure to give an instruction unless the party's position has been fairly and
adequately presented to the trial judge by an offered instruction or by motion, or
unless the party makes objection before the court instructs the jury, stating
specifically the matter to which the party objects and the ground or grounds of the
objection.” “[T]o preserve any error relating to the failure to give an instruction,
there must be an objection in the record stating specifically the matter to which the
party objects and the ground therefore.” Greene v. Commonwealth, 244 S.W.3d
128, 137 (Ky. App. 2008).
At trial, Abnee’s counsel objected to the instruction for second-degree
sodomy, noting that he had moved for a directed verdict “on the case as a whole.”
However, he did not present any argument objecting to the propriety of the
instruction of second-degree sodomy on particular grounds. Since the trial court
was not given the opportunity to consider the objection to the instruction on this
ground, we must conclude that the issue is not properly preserved for review.
-3-
Abnee asks this Court to review the issue under the palpable error
standard of RCr 10.26. However, the Kentucky Supreme Court recently stated that
palpable error review of an unpreserved error concerning instructions is
discretionary in light of the more specific language of RCr 9.54(2). Chestnut v.
Commonwealth, 250 S.W.3d 288, 305 (Ky. 2008). See also Johnson v.
Commonwealth, 105 S.W.3d 430, 435 (Ky. 2003); Chumbler v. Commonwealth,
905 S.W.2d 488, 499 (Ky. 1995); and Commonwealth v. Thurman, 691 S.W.2d
213, 216 (Ky. 1985). Moreover, the error must “seriously affect the ‘fairness,
integrity, or public reputation’ of a judicial proceeding in order to be considered
palpable under RCr 10.26.” Page v. Commonwealth, 149 S.W.3d 416, 422 (Ky.
2004) (quoting U.S. v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 123 L. Ed. 2d
508 (1993)). Under the circumstances of this case, we decline to address the
merits of these issues.
Accordingly, the judgment of the Nicholas Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy A. Durham
Assistant Public Advocate
Frankfort, Kentucky 40601
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
-4-
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.