2003-SC-1024-MR 1-IN I JOHN WILLIAMS V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : NOVEMBER 23, 2005
TO BE PUBLISHED
~uyrrmr QLourt of ~mnlo#4# r
2003-SC-1024-MR
1-IN
L-))1f-~;
I
I I- I -i4J-O ,5- ~,
-
JOHN WILLIAMS
V.
, Z%-
APPELLANT
ON APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS FOUST
01-CR-242
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
This appeal is from a judgment based on a jury verdict which convicted Williams
of four counts of use of a minor in a sexual performance . He was sentenced to ten
years on each count to run consecutively for a total of 40 years.
The issues presented in this appeal are as follows : 1) refusal of the trial judge to
grant a directed verdict on all charges ; 2) violation of double jeopardy rights ; 3)
erroneous admission of evidence of other pornographic images ; 4) failure of the trial
judge to require a special verdict on the issue of obscenity; 5) failure to instruct on the
definition of "to engage in" ; 6) erroneous use of "knowingly" rather than "intentionally" in
the instructions ; 7) failure to instruct on voyeurism ; and, 8) the use of a nonfinal
conviction during the sentencing phase.
This case arises from a series of six digital photographs taken by Williams of his
eight-year-old stepdaughter on or about January 22, 2001 . Of the four photographs
upon which the convictions are based, two show the stepdaughter in various stages of
undress, one depicts her sitting naked on the side of the bathtub and another reveals
her standing naked in the shower. A fifth photograph depicts the stepdaughter wrapped
in a towel, and a sixth was determined to be duplicative of another .
The existence of the photographs became known when Williams' wife noticed
him looking at internet pornography sites . This caused her to become concerned that
he may have saved images on the hard drive of the family computer. She asked a
neighbor, a self-taught computer expert, to remove any obscene images from the hard
drive . The neighbor stated that he "slaved" the hard drive to his own computer so that
he would be able to work on it, and while doing so, he discovered the photographs of
the stepdaughter. He also discovered numerous deleted images of child pornography.
The neighbor contacted the sheriff and turned over the computer hard drive to him.
Williams was arrested and indicted on six counts of use of a minor in a sexual
performance and one count of distribution of obscene matter . At trial, the distribution
charge was not presented to the jury and one of the six counts of sexual exploitation
was dismissed because it was believed that one of the photographs was a duplicate .
The jury acquitted Williams of the count pertaining to the photograph of the child
wrapped in a towel, but convicted him on each of the other four photographs . He was
sentenced to ten years on each count to be served consecutively for a total of forty
years in prison . This appeal followed .
I . Directed Verdict
Williams argues that he was entitled to a directed verdict on the charge of use of
a minor in a sexual performance. Specifically, he claims that the statute should be
construed to prohibit the use of minors in sexual acts, not private performances of a
nonsexual nature ; that there is no evidence that he induced the victim "to engage in" a
sexual performance ; and, there is no evidence that the performance included sexual
conduct by a minor.
On motion for a directed verdict, the trial judge must draw all fair and reasonable
inferences from the evidence in favor of the Commonwealth . Commonwealth v.
Benham , 816 S .W .2d 186 (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 . The standard for appellate review of a denial
of a motion for a directed verdict based on insufficient evidence is if, under the evidence
as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty,
he is not entitled to a directed verdict of acquittal . Commonwealth v. Sawhill, 660
S.W.2d 3 (Ky. 1983).
The arguments raised by Williams are without merit. The four photographs of
the victim show her either in various stages of undress, sitting naked on the side of the
bathtub or standing naked in the shower. Three of the photographs show the breast of
the victim and the fourth depicts her buttocks . They were found on the defendant's
computer along with other pornographic material .
Williams entered the bathroom while the child was beginning to bathe, left the
bathroom and then returned to take additional photographs. The stepdaughter testified
that Williams had taken the photographs of her and that she had told him to get out of
the bathroom and leave her alone. She also stated that at least one of the photographs
was taken without her knowledge; that the actions of Williams made her nervous ; that
she did not want him in the bathroom ; and, that she did not want any pictures taken .
The four photographs come within the definition of "sexual conduct by a minor"
contained in KRS 531 .300(4)(d), regardless of whether the stepdaughter was posing or
voluntarily engaging in some kind of sexual performance.
Any reliance on Young v . Commonwealth , 968 S .W .2d 670 (Ky . 1998), is
misplaced because in that case the underlying offense was unlawful transaction with a
minor. Here, the offense is the "use of a minor' in a sexual performance. It is obvious
that when the stepchild expressed her desire for him to leave the bathroom, she was
not in a position from strength, size or the dynamics of their relationship to compel him
to leave .
The argument that the pictures were not that obscene and that they might fall
under the "family nature" exception in the statute is unacceptable . Obviously, these
were not family photographs because the mother of the victim had no knowledge of
their existence until after the neighbor discovered them . No evidence or explanation
was presented to support the claim for a "family nature" exception, and it should not be
used as a false pretext for child pornographers and other persons seeking to exploit
minors .
The jury saw the photographs and observed the demeanor of the witnesses and
the stepdaughter when they described the events. It had no problem in concluding that
the statute had been violated . The trial judge properly denied the motion for a directed
ve rdict.
II . Double Jeopardy
Williams argues that the photographs should have been consolidated into one
count of use of a minor in a sexual performance ; however, he concedes that the issue
was not properly preserved for appellate review. He requests this Court to review the
claim under the provisions of RCr 10 .26 because it is manifestly unfair that he was
convicted of four separate crimes and sentenced accordingly for something that should
be considered as only a single crime . We disagree .
KRS 505 .020 provides in relevant part as follows :
1) When a single course of conduct of a defendant may
establish the commission of more than one (1) offense, he
may be prosecuted for each such offense . He may not,
however, be convicted of more than one (1) offense when :
(c) The offense is designed to prohibit a continuing
course of conduct and the defendant's course of conduct
was uninterrupted by legal process, unless the law expressly
provides that specific periods of such conduct constitute
separate offenses .
Whether a particular course of conduct involves one or more distinct offenses
under a statute depends on how a legislature has defined the allowable unit of
prosecution . See KRS 505.020 (1974 Official Commentary) which states that
Subsection (1)(c) "places the burden on the legislature to determine the instances in
which a continuing course of conduct involves sufficient danger to be treated as
multiple offenses ." See also, Sanabria v. United States, 437 U .S . 54, 98 S.Ct. 2170, 57
L .Ed .2d 43 (1978); Bell v. United States , 349 U .S . 81, 75 S .Ct. 620, 99 L.Ed . 905
(1955) . Consequently, whether the conduct of Williams in creating the multiple different
photographs involved one offense or four separate offenses depends on how the
statute defines the offense and the unit of prosecution intended by the Legislature as
reflected in the plain language of the statute.
KRS 531 .300 et seq . pertains to the Sexual Exploitation of Minors . KRS
531 .310(1) provides that "[a] person is guilty of the use of a minor in a sexual
performance if he employs, consents to, authorizes or induces a minor to engage in a
sexual performance ." A "sexual performance" is defined as "any performance or part
thereof which includes sexual conduct by a minor[ .]" KRS 531 .300(6). A
"[p]erformance" includes any play, motion picture, photograph or dance ." KRS
531 .300(5) (emphasis added) .
Here, the plain language employed in the definition of "performance" focuses on
"any photograph ." The singular form of "photograph" read in conjunction with the term
"any" clearly indicates that the Legislature intended prosecution for each differing
photograph . Accordingly, a person who generates differing and multiple prohibited
photographs or causes a child to engage in the creation of such photographs commits
multiple offenses of KRS 531 .310, even though each such differing photograph involves
the same subject captured in a narrow timeframe .
Our reading of the relevant statutes is in accord with other jurisdictions with
similar statutory language . See , United States v. Esch, 832 F .2d 531, 541 (10th Cir.
1987) (under federal statute prohibiting use of minor for purpose of producing " 'any
visual depiction' " of sexually explicit conduct, correct unit of prosecution held to be per
photograph ; each photograph represented separate and distinct use of child) ; Burk v.
State , 705 So .2d 1003 (FIa .App . 1998) (legislative intent was to make production of
each individual photograph separate crime ; direction of poses and taking of each
photograph sufficient to support separate violations for each photograph) ; State v.
Mather, 646 N .W .2d 605 (Neb. 2002); Vineyard v. State, 958 S.W .2d 834, 837
(Tex.Crim .App . 1998) (use of singular tense in statute meant unit of prosecution for
possession was per "'film image"' ); State v. Morrison , 31 P.3d 547, 556 (Utah 2001)
(each individual " 'visual representation'" of child pornography possessed constitutes
basis for separate offense) ; State v. Multaler , 643 N .W.2d 437, 450 (Wis . 2002) (where
statute referred to possession of " 'any .. . photograph,'" unit of prosecution was each of
28 images found on two computer disks).
III . Admissibility of Additional Material
Williams argues that the trial judge erred by permitting the Commonwealth to
introduce extraneous evidence of other allegedly pornographic images found on the
computer. We disagree .
Before trial, the Commonwealth filed two notices of its intent to introduce
evidence pursuant to KRE 404(b) . The first notice involved evidence that Williams had
been convicted of three counts of third-degree rape against a 14-year old girl . This also
included evidence that he asked that victim if he could take revealing photographs of
her. The second notice involved evidence of up to twenty-one pictures of the
defendant's other stepdaughter in which she allegedly posed in sexually suggestive
manner while fully clothed .
Defense counsel objected to the introduction of any of this evidence at a hearing
on the matter. The trial judge determined that the photographs of the other
stepdaughter were not bad acts, were not relevant and thus were inadmissible . The
Commonwealth then informed the trial judge that there was lots of other adult and child
pornography found on the defendant's computer. Defense counsel objected to the
introduction of other pornographic pictures, claiming that intent was not an element of
the offense. He also claimed that the pornographic material had no bearing on whether
the photographs of the victim were obscene .
The trial judge ruled that the Commonwealth could introduce the evidence from
the third-degree rape or up to six other items in the computer, but not both . The
Commonwealth stated it would choose the latter.
At trial, the Commonwealth presented the testimony of the police detective who
retrieved the evidence from the defendant's computer . He identified the six
photographs of the victim as being the same as the ones found on the hard drive of the
computer . He referred to the six pictures as a "series" of photographs, meaning a
group of photographs taken together, generally of the same subject.
During the testimony of the detective the Commonwealth introduced three
exhibits, Commonwealth's exhibit #11, #12 and collective exhibit #13. Exhibit #11 is not
in the record . Exhibit #12 consists of two pages of 32 thumbnail size photographs,
including the six digital photographs of the victim . Also depicted on this exhibit are six
dark and grainy photographs of an individual who appears in some to be lying in bed
and in others posing in a reclined position . The private areas of this individual are not
discernable . Collective exhibit #13 was apparently enlargements of these six
photographs, but the record contains only a single enlarged photograph . The remaining
twenty photographs in exhibit #12 are irrelevant and consist of generic pictures and
unidentified subjects, some of which may be close ups of the defendant's face .
When the detective was asked about the six dark and grainy photographs, he
stated that they appeared to him to be the victim . Defense counsel objected, but the
ruling, if any, on that objection is inaudible on the videotape record. Thereafter, the trial
judge allowed the Commonwealth to introduce collective exhibit #13 over the
defendant's objection.
The Commonwealth then asked the detective about the other "series" on the
computer . He responded that there were several images in the folder which contained
the photographs taken by the defendant. Defense counsel offered another objection,
claiming the trial judge ruled them inadmissible . A lengthy discussion ensued inchambers and there was some general confusion on what the Commonwealth was
seeking to introduce. The prosecutor explained that he had decided not to introduce
the six pornographic items that the trial judge had previously ruled admissible .
Apparently he was not going to show the jury the pornographic materials, but wanted
the detective to testify to their existence.
Changing tactics, defense counsel expressed concern that the jury was left with
the impression that there was another victim depicted in the other images referenced by
the detective. The prosecutor responded that he could clear that up with a couple of
questions. When trial resumed, the prosecutor asked the detective whether there was
another "series" generated by the defendant. Defense counsel immediately moved for
a mistrial and the prosecutor requested a further opportunity to clear it up. The
prosecutor then asked the detective if there were any other photographs on the
computer that came from a digital camera . The detective responded that the only ones
were those contained in the file he looked at, the same file which was depicted on one
of the exhibits . When asked if he knew the manufacturer of the other child
pornography, the detective responded in the negative. Both counsel then approached
the bench and defense counsel indicated that he thought the issue was cleared up, but
he would have to take it up during cross-examination to make sure.
On cross-examination, defense counsel clarified that the only photographs on
the computer taken with a digital camera were the ones already seen by the jury. He
also verified that there was no contention that the other pictures were generated by the
defendant.
It is abundantly clear from our extensive review of the record that the jury was
only informed about the other pornographic material on the defendant's computer. No
visual depictions were presented and there was no detailed description of the items .
For that reason, reliance on Chumbler v. Commonwealth , 905 S .W .2d 488 (Ky. 1995) is
misplaced .
Considering the entire sequence of events, it is also clear that defense counsel
was objecting to the introduction of pornographic images, not the mentioning of them .
This is evident because the mother of the victim testified, without objection, that she
saw her husband on the "porn sites" and that led her to ask a neighbor to wipe the hard
drive clean . That neighbor then testified, without objection, that when he undertook the
task he found child pornography. He later described finding numerous amounts of
pornography and child pornography. Defense counsel did object at that time, claiming
that "child pornography" was a legal conclusion . The trial judge sustained that objection
and no further relief was requested .
Considering the nature of the offense and its characteristics, the introduction of
this evidence was admissible to show intent or knowledge under KRE 404(b) . The
reference was relevant and probative of the issue of whether photographs taken by
Williams constituted a sexual performance.
IV. Special Verdict - Obscenity
Williams argues that a special verdict should have been given to the jury to
determine whether the photographs were obscene. He concedes that this issue was
not raised before the trial judge and was not properly preserved, but contends that this
issue should be considered as substantial error pursuant to RCr 10 .26 because the
result would likely have been different if this alleged error had not occurred . We
disagree .
Even if a special verdict is required in these circumstances, the failure to do so
here was not palpable error. The jury instructions set out the relevant definitions,
including "performance", "sexual conduct by a minor", and "obscene". Inherent in the
verdict of the jury is a finding of obscenity .
V. "To engage in"
Williams complains that the trial judge erred by failing to instruct the jury on the
meaning of the phrase "to engage in ." He asserts that the jury was not properly
instructed on the "whole law" of the case. Williams claims that the term should be
defined as it is used in the offense of unlawful transaction with a minor, KRS
530.064(1), and as mentioned in Young, supra . The trial judge denied the request
indicating that such an issue would be a matter for the jury to determine .
The language of KRS 530.064(1) states:
A person is guilty of unlawful transaction with a minor in the
first degree when he knowingly induces, assists, or causes a
minor to engage in illegal sexual activity, or in illegal
controlled substances activity other than activity involving
marijuana, except those offenses involving minors in KRS
Chapter 531 and KRS 529.030 . (Emphasis added.)
This statute specifically distinguishes itself from offenses involving sexual
exploitation of minors. Consequently, Young has no application here . Moreover, in
order to be involved in a transaction with a minor, there has to be some mutuality of
action . KRS 531 .310, however, is intended to punish the use of minors in a sexual
performance regardless of the child's assent to being exploited . There was no abuse of
discretion in the decision by the trial judge not to define the phrase.
VI . Instruction on Mental State
Williams asserts that it was error for the trial judge to instruct the jury that he
could commit the offense of use of a minor in a sexual performance knowingly, rather
than intentionally. Williams concedes that this issue is not properly preserved for
appellate review, but asks this Court to consider the matter as palpable error pursuant
to RCr 10 .26.
This Court has repeatedly stated that failure to comply with RCr 9.54(2) prohibits
further consideration of any alleged error in the jury instructions . The language
contained in the instruction in this case complied with a form instruction set out in
Cooper, Kentucky Instructions to Juries § 4 .86 (1999). There is no basis for additional
consideration of this unpreserved issue.
VII . Instruction -Voyeurism
Williams asserts that he was entitled to have the jury instructed on the lesserincluded offense of voyeurism. We disagree .
In 2002, the Kentucky legislature enacted a new statute, KRS 531 .090, for the
offense of voyeurism . It had an effective date of July 15, 2002, which was
approximately 16 months after the commission of the offenses by Williams on or about
January 22, 2001 .
12
Defense counsel, at the conclusion of the defense case, mentioned a request
for a lesser-included offense of voyeurism under the new statute . The trial judge noted
that the statute was not the law in existence at the time of the offense and that an ex
post facto problem would be generated because the defendant could potentially be
found guilty of something that was not an offense at the time of the violation . The trial
judge denied the request .
KRS 446 .080(3) provides that "[n]o statute shall be construed to be retroactive
unless expressly so declared ." There is no retroactivity statement in the new law, KRS
531 .090, and it could not be applied in this matter .
Reliance on Commonwealth v. Phon , 17 S .W.3d 106 (Ky. 2000), is misplaced
because that case is factually distinguishable from the one presented here . In Phon,
supra , there was a change in the penalty range of the existing homicide statute to
include the possibility of life without parole . Here, an existing statute was not amended,
but rather an entirely new offense was created by the enactment of KRS 531 .090.
There was no error in denying the requested instruction .
VIII . Sentencing Error
In the penalty phase, the prosecution called the circuit clerk to testify as to the
defendant's prior record . Over defense objection, the clerk testified that Williams had
been convicted of three counts of third-degree rape and that those convictions were on
appeal at the time of the trial.
Ultimately, the Court of Appeals affirmed the convictions for third-degree rape .
Williams v. Commonwealth , 2003-CA-707-MR . Williams sought discretionary review
which this Court granted on August 17, 2005 . Williams v . Commonwealth , 2004-SC1006-DG .
13
In Melson v. Commonwealth , 772 S.W.2d 631 (Ky. 1989), we stated in pertinent
part:
It is the holding of this court that a prior conviction may not
be utilized under KRS 532 .055 (the truth-in-sentencing
statute) or under KRS 532 .080 (persistent felony offender
act) unless :
(1) The time for appealing the convictions has expired
without appeal having been taken, or
(2) Matter of right appeal has been taken pursuant to § 115
of the Constitution of Kentucky and the judgment of
conviction has been affirmed .
The court went on to state that this holding does not apply to collateral attacks
such as provided in RCr 11 .42, nor does it apply to pending motions for discretionary
review. If discretionary review has been granted, the conviction shall not be used until
the case is disposed of by the reviewing court. The error in admitting nonfinal
convictions was considered harmless in Melson , supra, not only because the
convictions were subsequently affirmed, but each defendant had sufficient other
admissible prior felonies to justify the PFO instruction .
In this case, although the Court of Appeals has subsequently affirmed the
convictions, this Court has granted the defendant's motion for discretionary review.
Furthermore, Williams did not have any other admissible prior convictions .
Consequently, we cannot find the error to be harmless .
In reviewing this case, we have found no error in the guilt phase portion of the
trial. Williams was not denied his due process rights under the state or federal
constitutions .
The singular form of photograph in KRS 531 .300 (5) read in conjunction with the
term "any" indicates that the General Assembly intended prosecution for each differing
14
photograph. Such an interpretation is consistent with the clear intent of the General
Assembly to prevent sexual exploitation of children.
The judgment is affirmed in part as to the conviction of Williams for four counts
of use of a minor in a sexual performance . However, the 40-year sentence is reversed
and this matter is remanded for a new sentencing phase .
All concur.
COUNSEL FOR APPELLANT :
Timothy G . Arnold
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
George G . Seelig
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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.