DANNY LITTLE V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED : JANUARY 22,2009
AS MODIFIED : NOVEMBER 12,2008
RENDERED : OCTOBER 23, 2008
TO BE PUBLISHED
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2005-SC-000578-MR
DANNY LITTLE
V
APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D . COMBS, JUDGE
NO . 04-CR-00152-002
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Danny Little was convicted of two counts of using a minor in a sexual
performance and two counts of promoting a sexual performance by a minor . In
accordance with the jury's recommendation, he was sentenced to twenty (20) years
each on the use charges and fifteen (15) years each on the promoting charges, to be
served consecutively for a total of seventy (70) years' imprisonment. Appealing to this
Court as a matter of right, Little argues the circuit court erred by: (1) allowing convictions
on both charges in violation of the prohibition against double jeopardy and KRS
505 .020; (2) denying his motion for a directed verdict as to both charges ; and (3)
allowing the Commonwealth to introduce unduly prejudicial evidence. For the reasons
set forth herein, we affirm .
In May of 2004, Summit Engineering contacted the Pikeville Police Department
concerning pornographic materials discovered in the locker of an employee, Thaddus
Burke. Police recovered material related to child pornography, including three
videotapes, numerous photos, magazines, news clippings, and a notebook describing
sexual acts. Burke was arrested and a search of his home resulted in the recovery of
additional pornographic material, as well as a computer hard drive with pornographic
material downloaded from the internet.
Burke's wife, Crystal, viewed portions of the videotapes and identified their
daughter, KB, and the family's living room. Crystal also identified Little and Little's son,
DL, and daughter, CL. She recognized Little from his face, as well as from a heart
shaped tattoo on his arm . While Crystal confirmed Little occasionally visited their home,
she could not recall Little's children ever having been guests.
Little was arrested on May 26, 2004. A search of his home failed to lead to any
additional pornographic material . Nor were officers able to locate either a computer or a
VCR in Little's home. Little's ex-wife, Melissa, confirmed that she had custody of CL
and DL. Further, she indicated Little was allowed only supervised visitation . To
Melissa's knowledge, her children had visited the Burkes' home on only one occasion .
Following this unauthorized visit, Little's visitation rights were terminated . Melissa also
confirmed that KB was not a regular playmate of her children .
At trial, the Commonwealth introduced all three videotapes in their entirety. The
first videotape contains various clips of the children, amateurishly spliced together with
pornographic material from other sources . This tape includes footage of KB and CL on
a toy four-wheeler while in their underwear . It also depicts KB on the Burkes' couch
wearing a dress, and includes pictures of the child in various poses, with and without
her underwear . KB can be seen trying to cover her face while being filmed without
underwear. Further, Little can be seen reaching in to touch her stomach and her leg.
The videotape also contains footage of KB and CL in the bathtub ; male voices can be
heard in the background .
The second videotape includes additional footage of KB and CL in the bathtub at
the Burkes' home. Little can be seen assisting them bathe . Burke and Little are
overheard giving the girls verbal directions . The camera focuses on their naked genital
regions . Another scene occurs in the Burkes' living room . Little is tossing the girls in
the air while Burke films the girls' bare buttocks and pubic areas .
The third videotape contains lengthier footage of the incident on the couch . A
voice can be heard asking KB to lean back and bring her heels together . Also, Little
appears to be trying to spread KB's legs apart while KB is crying, "No." Little's tattoo is
visible in this footage . Further, a hand can be seen on at least two occasions reaching
in to reposition KB's dress and spread her legs apart as KB continues to resist . At
another point, a hand appears to be holding KB's legs down. Finally, this footage
includes KB posed on the couch nude.
At trial, Little testified in his defense. While admitting he appeared in the videos,
he characterized the incidents as the filming of family situations. Regarding the bathtub
incident, he claimed Crystal Burke had stepped out. As to the footage of KB on the
Burkes' couch, Little claimed he was outside drinking beer during most of the filming.
He admitted he came in and tickled KB on the stomach and may have touched her leg,
but denied trying to pose the child . He also denied any knowledge as to what Burke
was focusing the camera on during any of the incidents . While he admitted he had
suspicions of Burke's interest in child pornography, he denied ever seeing the
videotapes . Finally, Little admitted that he brought his children to the Burkes' home in
violation of the limitations on his visitation rights .
With respect to KB, the jury was instructed on one count of using a minor in a
sexual performance and one count of promoting a sexual performance by a minor . The
use charge stems from the footage in which Little is seen tossing the girl in the air as
Burke films her pubic area . The promotion charge arises from the incident on the
couch .
The jury was likewise instructed on one count of using a minor in a sexual
performance and one count of promoting a sexual performance by a minor as to CL.
The Commonwealth argued that Little used CL in a sexual performance when he
consented to her being filmed on multiple occasions in various stages of undress. The
promotion charge arises from the filming of CL in the bathtub .
The jury found Little guilty on all four counts. This appeal followed .
Little first argues his convictions for using a minor in a sexual performance and
promoting a sexual performance by a minor amount to a violation of the double jeopardy
clauses of both the state and federal constitutions, and of the limitations set out in KRS
505 .020 for the prosecution of multiple offenses . Little asserts that the Commonwealth
relied on the same facts to establish the elements of both statutes . Thus, Little argues
that in the context of the facts of this case, the statutes do not require proof of distinct
facts .
"The double jeopardy clause of the Fifth Amendment to the United States
Constitution provides in pertinent part that no person shall `be subject for the same
offense to be twice put in jeopardy of life or limb ."' Commonwealth v. Burge, 947
S .W.2d 805, 809 (Ky. 1996) . Section 13 of the Kentucky Constitution contains a
virtually identical clause . Id . In Bur e, this Court returned to the double jeopardy
analysis set out in Blockburger v. U .S . , 284 U .S. 299, 52 S.Ct. 180, 76 L .Ed . 306
(1932) . 947 S.W.2d at 811 . Under Blockburger , when the same act or transaction
violates two statutory provisions, we must determine "whether each provision requires
proof of a fact which the other does not." 284 U .S. at 304, 52 S.Ct. at 182 . The focus of
the analysis is on the proof necessary to establish "the statutory elements of each
offense, rather than on the actual evidence presented at trial ." Polk v. Commonwealth,
679 S.W.2d 231, 233 (Ky. 1984), citing Illinois v. Vitale , 447 U .S. 410, 100 S.Ct. 2260,
65 L.Ed .2d 228 (1980) . So long as "each statute requires proof of an additional fact
which the other does not, the offenses are not the same under the Blockburger test."
See Vitale , 447 U .S. at 416, 100 S.Ct. at 2265 (internal citations omitted) .
We recently considered an identical argument in Clark v. Commonwealth,
S.W.3d
(Ky. 2008). Clark was convicted of one count of promoting a sexual
performance by a minor and one count of using a minor in a sexual performance,
among other charges. These convictions stemmed from an encounter, arranged by
Clark, wherein he directed a minor boy to lie on top of his minor daughter . He then
ordered the boy to simulate sexual intercourse as pornographic movies played in the
background.
In considering Clark's double jeopardy claim, we noted that "an overlap of proof
does not, of its own accord, establish a double jeopardy violation . However, an inability
to point to the requirement of at least one mutually exclusive fact in existence does." Id .
at
(internal citations omitted) . In Clark, we rejected the Commonwealth's assertion
that mutually exclusive facts existed under the circumstances presented by stating :
The Commonwealth asserts that the focus of the "promotion" statute is
the direction of the sexual performance, while the focus of the "use"
statute is the engagement in the performance . However, as the above
discussion clearly demonstrates, the Commonwealth's argument points
to a distinction without a difference . The "use" statute requires only that
the offender either passively ("consent") or actively ("employ") facilitate
5
a minor's participation in a visual representation of a sexual performance
before an audience . And, in effect, under the facts in question , the
promotion, statute, KRS 531 .320 prohibits the same conduct .
(emphasis added) .
Clark,
S .W .3d at
(internal citation omitted) .
The present charges are readily distinguishable because they arise from multiple
incidents memorialized on videotape . Little was not prosecuted twice for the same
conduct, but for distinct actions.
A person uses a minor in a sexual performance when he "employs, consents to,
authorizes or induces a minor to engage in a sexual performance ." KRS 531 .310(1).
Little consented to Burke filming his daughter, CL, in various stages of undress, both
while on the four-wheeler and while being tossed in the air. Little used, or employed,
KB in a sexual performance when he tossed her in the air while Burke filmed her bare
buttocks .
A person promotes a sexual performance by a minor when, "knowing the
character and content thereof, he produces, directs, or promotes any performance
which includes sexual conduct by a minor ." KRS 531 .320 . "The `promotion' statute is
violated when one either actively or passively prepares, agrees, or brings forth through
their efforts the visual representation of a minor in a sexual performance before an
audience." Clark,
S.W .3d at
. By filming KB naked on the couch while
physically positioning her in various poses, Little was directing a sexual performance by
a minor. He promoted a sexual performance by CL when he allowed her to be filmed
while naked in the Burkes' bathtub . His verbal directions to CL assisted Burke in the
organizing, or production, of footage containing sexual conduct.
The convictions in this case do not arise from a single course of conduct.
Rather, they are based on distinct actions as to separate victims . Thus, the rule
6
prescribed in Blockbu[ger is not implicated, and no double jeopardy violation occurred
when Little was convicted under both KIRS 531 .310 and KIRS 31 .320.
284 U.S . at 304, 52
lockburger,
Ct, at 102 .
Next, Little argues he was entitled to a directed verdict as to both offenses . In
particular, he argues the Commonwealth failed to produce any evidence of his intent to
sexually exploit the children . Little claims he had no knowledge of where Burke was
focusing the camera . Further, he claims he had no knowledge that Burke possessed
pornographic material and that police recovered no pornographic material from his
home. He characterizes the nature of the incidents as merely the filming of family
scenes . Under these circumstances, Little argues the Commonwealth failed to
introduce even a scintilla of evidence to show his intent to violate either statute .
In considering a motion for directed verdict,
[T]he trial court must draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth . 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. For the purpose
of ruling on the motion, the trial court must assume that the evidence for
the Commonwealth is true, but reserving to the jury questions as to the
credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 SW2d 186,187 (Ky. 1991). "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).
Little was convicted under KIRS 531 .310 and KIRS 531 .320. Both statutes require
a showing of the defendant's intent. See Mattingly v. Commonwealth, 878 S .W-2d 797,
800 (Ky. App . 1993) (intent is an element under KIRS 531 .310); Purcell v.
Commonwealth, 149 S.W.3d 382, 389 (Ky. 2004) (intent is a requirement under KIRS
7
531 .320) . As to intent, this Court has held that it "may be inferred from the actions of a
defendant or from the circumstances surrounding those actions." Marshall v.
Commonwealth , 60 S.W.3d 513, 518 (Ky. 2001). Likewise, intent may be inferred from
the defendant's knowledge . Id. Finally, we are mindful that a "person is presumed to
intend the logical and probable consequences of his conduct[ .)" Parker v.
Commonwealth , 952 S.W.2d 209, 212 (Ky. 1997) .
The evidence was sufficient to overcome Little's motion for a directed verdict.
With respect to KB, the circumstances of the video footage establish Little's intent. Little
is tossing KB in the air while Burke is filming her bare buttocks . It is wholly unbelievable
that Little would not be aware Burke was filming the child's genital area given the
vantage point Burke must have assumed in order to capture the video . Likewise, Little
himself filmed KB on the couch. He pushed her legs apart and tickled her stomach. A
reasonable juror is entitled to conclude that Little intended these actions .
The circumstantial evidence likewise supports a finding that Little intended the
offenses against his daughter, CL. He testified that he suspected Burke was interested
in pornography, yet he nonetheless brought CL to Burke's home in violation of his
visitation restrictions . He allowed CL to be videotaped while naked on a four-wheeler.
He tossed a partially naked CL in the air while Burke filmed her buttocks from below .
While CL is naked in the bathtub, Little can be overheard giving her verbal directions.
Again, these circumstances reasonably support the conclusion that Little intended to
use CL in a sexual performance and to promote such performances by CL.
When this evidence, and the inferences that can be drawn from it, are viewed in
a light most favorable to the Commonwealth, we find it sufficient to support a finding as
to the intent element necessary for each statute . The trial court did not err in denying
Little's motion for a directed verdict .
Little's final argument concerns the trial court's decision to allow the introduction
of all three videotapes in their entirety. Little argues that, with the exception of the
portions dealing with his children and possibly those dealing with KB on the couch, the
remaining portions were inadmissible . He notes that the videotapes contained spliced
footage, both still photos and motion pictures, of unknown persons . Further, Little
argues there was no evidence that he had either seen this footage or knew it existed .
Finally, Little argues that, contrary to Partin v. Commonwealth, 918 S .W.2d 219 (Ky.
1996), the trial court made no attempt to determine the probative value of these
portions, nor did the court weigh the probative value against any undue prejudice .
Little characterizes the footage depicting graphic child pornography as highly
disturbing and repulsive . While he concedes the videotapes in their entirety were
relevant as to Burke, he argues their undue prejudice outweighed the probative value, if
any, when used against him. Under these circumstances, Little argues the decision to
allow the Commonwealth to admit these portions of video was arbitrary and
unreasonable .
As we noted in Partin , the admissibility of evidence must be determined pursuant
to Kentucky Rule of Evidence (KRE) 401 and KRE 403. Id . at 222. Relevant evidence
is defined as "evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence." See KRE 401 . "Relevant evidence in a criminal case
is any evidence that tends to prove or disprove an element of the offense." Harris v.
Commonwealth , 134 S .W.3d 603, 607 (Ky. 2004) (citation omitted) . For evidence to
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Nor do we accept Little's argument that the evidence was unduly prejudicial. We
need not dispute Little's characterization of the evidence as repulsive. The fact that the
material on the videotapes is disturbing and repulsive follows from the nature of the
crime and does not make the evidence inadmissible . See Clark v. Commonwealth, 833
S.W.2d 793, 794 (Ky. 1991) ("[R]elevant pictures are not rendered inadmissible simply
because they are gruesome and the crime is heinous ."). Under these circumstances,
the trial court did not abuse its discretion in allowing the Commonwealth to introduce the
three videotapes in their entirety.
For the foregoing reasons, the judgment of the Pike Circuit Court is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jeffrey Allan Cross
Assistant Attorney General
Office of Criminal Appeals
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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2005-SC-000578-MR
DANNY LITTLE
V.
APP LLANT
ON APPEAL FROM PIKE 4RCUIT COURT
HONORABLE STEVEN D. OMB, JUDGE
NO. 04-CR
2-002
COMMONWEALTH OF KENTUCKY
APP LLEE
)RDER
On the Court's own motion, the Memorandum Opinion of the Court rendered
October 23, 2008, is hereby modified by substituting pages 1 and 7 of the opinion a
attached hereto, in lieu of pages 1 and 7 of the (opinion as originally rendered . Said
modification changes the first word of page 7 from "proscribed" to "prescribed,"
does not affect the holding .
Entered : November
2008 .
d
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2005-SC-000578-MR
APPELLANT
DANNY LITTLE
V
ON APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D . COMBS, JUDGE
NO . 04-CR-00152-002
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION
The petition for rehearing is hereby denied .
The opinion rendered October 23, 2008 and modified November
12, 2008 is modified by substituting pages 1 and 6 as attached hereto, in lieu
of pages 1 and 6 of the opinion as originally rendered . Said modification does
not affect the holding of the case .
All sitting. All concur.
ENTERED : January 22, 2009 .
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