GARY LYNN KEIM V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 23, 2010
NOT TO BE PUBLISHED
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2009-SC-000445-MR
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BAT
GARY LYNN KEIM
V.
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ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
NO. 08-CR-00568
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING IN PART
In March 2009, Appellant, Gary Lynn Keim, was convicted by a Christian
Circuit Court jury of two counts of Use of
a Minor in a Sexual Performance,
victim under the age of sixteen ; three counts of third-degree Unlawful
Transaction with a Minor; and one count of third-degree Sexual Abuse.' For
these crimes, Appellant was sentenced to thirty years' imprisonment and
assessed fines totaling $1,750 .00. He now appeals to this Court as a matter of
right. Ky. Const. § 110(2)(b) . We now affirm Appellant's conviction and
sentence, but reverse the assessment of fines .
1 It is pertinent to note that Appellant was charged, in addition to these crimes, with
two counts of rape. However, it appears that because of Appellant's testimony, that
he weighed approximately five hundred pounds and was impotent at the time of the
incident, the jury believed that a rape did not transpire .
I. Background
During the summer of 2007, Appellant's nephew, J .G., and his niece,
B.G., both under the age of sixteen, visited Appellant in Christian County.
Sometime during the evening, Appellant asked B .G. to call his neighbor, D .S .,
also a minor under sixteen years of age, and ask her if she wanted to spend the
night at Appellant's residence. Once D. S . arrived, the four went into
Appellant's bedroom where they drank alcohol and watched pornography. B .G.
testified that while they were in the bedroom, Appellant had her and D.S .
undress and dance with each other .
At some point, Appellant began playing "drinking games" with the three
children, which resulted in D .S . falling asleep on Appellant's bed. Thereafter,
in the middle of the night, B .G. awoke and witnessed Appellant initiate coitus
with D .S . J.G. also testified to witnessing this act.
In May 2008, J.G., B .G., and D.S . again visited Appellant. The four went
swimming, and according to J.G . and B.G., Appellant removed his trunks while
in the pool with them. After swimming, they went into the house, drank
alcohol, and smoked cigarettes . There was also testimony that D.S. and
Appellant smoked a "green drug" in a pipe . Eventually, D . S . and B.G. became
intoxicated and Appellant instructed the two to strip and had them bend down
in front of him so that he could subject them to cunnilingus . J .G. and B .G.
testified that Appellant later made J.G . and D .S . have intercourse although
D .S . testified that she was not sure whether intercourse actually took place .
D .S . testified that she believed B .G. and Appellant had sex that night as
well. She testified that she witnessed Appellant unclothed and on top of B.G .
J .G . also witnessed this, but he did not believe B .G. and Appellant were having
sex. J .G. also testified that Appellant told D .S . to perform oral sex on him.
Later, J . G. informed his grandmother about the incidents and the police
were notified . Detective Randall Greene of the Hopkinsville Police Department
investigated the allegations . He interviewed the three victims and discovered
that Appellant had shown them pornography. He then searched Appellant's
house and seized a computer and some "porno movies." However, no results of
any computer search were ever turned over to Appellant.
At trial, three witnesses mentioned Appellant's possession of
pornography. J. G . was the first to testify to Appellant's possession of
pornography at which point Appellant objected on grounds that he had not
received the police's search results concerning his computer . He further
argued that since the Commonwealth seized the computer, allegedly after the
victims informed the police that Appellant had used it to show them
pornography, any mention of pornography should not be allowed. In response,
the Commonwealth acknowledged that Appellant's use of pornography was not
essential to its case . Thereafter, the trial court sustained Appellant's objection
2 At trial, Appellant's counsel acknowledged that while police had seized the
computer they had not "checked" it for pornography. Therefore, we are not
presented with a case where the Commonwealth executed a search warrant and
subsequently refused to provide the defendant with the search results.
and offered an admonition, which Appellant declined. Instead, Appellant
moved for a mistrial, which the court denied.
The next witness, B .G., testifying to the same incident as J.G ., stated
that Appellant went to a pornographic website while the three children visited
Appellant's home. Appellant again objected and the judge stated "it's all right"
indicating, in context, that a bench conference was unnecessary. The
Commonwealth instructed B .G . not to talk about the computer.
Detective Greene was the last witness to mention Appellant's possession
of pornography, stating he had seized Appellant's computer and some
pornographic movies . Appellant again objected, arguing that his possession of
pornography constituted uncharged criminal conduct and that its mention
warranted a mistrial. The trial court again sustained the objection, but denied
the motion for a mistrial. 3
Appellant now asserts that a mistrial was warranted after the jury was
exposed to multiple statements regarding Appellant's possession of
pornography because the testimony was both irrelevant and unduly prejudicial
under KRE 403 . In this regard, he asserts that the testimony did not relate to
"any element of any of the charged crimes" and that its mention created a
"pervasive stink" in the courtroom, which denied him a fair and impartial trial .
3 We note that Appellant's argument at trial, that his possession of pornography
constituted uncharged criminal conduct, alludes to a KRE 404 analysis . However,
that issue is simply not presented in this appeal. Instead, Appellant relies solely on
KRE 401, 402, and 403 for the proposition that he was entitled to a mistrial. See
discussion, infra, pages 7-8 .
Appellant further concludes that an admonition, which he rejected, would not
have adequately remedied the situation.
The Commonwealth responds by noting that the prosecution is allowed
"to present a complete, unfragmented picture of the crime and investigation."
Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003) . Specifically, the
Commonwealth relies on our decision in Gilbert v. Commonwealth, and
maintains that the testimony regarding Appellant's possession of pornographic
materials was relevant in that it explained his overall scheme, plan, and intent.
838 S.W.2d 376, 378 (Ky. 1991) . In the alternative, the Commonwealth asserts
that if any error occurred, an admonition to the jury (which the trial court
offered and Appellant declined) would have rectified the error, thus any error
was waived.
Because we find that the evidence in this case was relevant and passed
the balancing test under KRE 403, we thus hold that a mistrial was
unwarranted as no error, or harmful error, occurred .
II. Analysis
A. Kentucky Rules of Evidence
As framed by Appellant, the issue in this case is whether a mistrial was
merited after the jury was exposed to testimony regarding Appellant's
possession of pornography. The premise of Appellant's argument is that
because the testimony was both irrelevant and unduly prejudicial, its mention
was error and warranted a new trial . Furthermore, Appellant argues that an
admonition would not have cured the alleged error . However, because we find
that the evidence was relevant and that it passes the considerations outlined in
KRE 403 (and KRE 404(b)), no admonition was necessary and a mistrial would
have been inappropriate .
The rules of evidence in this Commonwealth are inclusive in nature and
all evidence, which has 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, is relevant and admissible .
KRE 401 . However, as provided in KRE 402, under certain circumstances
relevant evidence may not be introduced . KRE 403 is such a rule, and directs
a trial court to exclude relevant evidence when its probative value is
substantially outweighed by the danger of undue prejudice . Id. Undue or
"unfair prejudice" means[T]he undue tendency to suggest a decision based on improper
consideration ; it does not mean the damage to a defendant's
case that results from the legitimate probative force of the
evidence. Evidence is unfairly prejudicial only if . . . it appeals
to the jury's sympathies, arouses its sense of horror, provokes
its instinct to punish, or otherwise may cause a jury to base its
decision on something other than the established propositions
in the case.
Ten Broeck Dupont, Inc. v. Brooks, 283 S.W .3d 705 (Ky. 2009) (internal
quotations and citations omitted).
Indeed all evidence is subject to the considerations outlined in KRE 403 .
Brown v. Commonwealth, 313 S.W.3d 577, 606 (Ky. 2010) . But in that same
vein, virtually all evidence submitted by the Commonwealth for the purposes of
implicating a defendant is prejudicial to some degree . Ford Motor Co. v.
Fulkerson, 812 S.W.2d 119 (Ky. 1991) . Nevertheless, the prejudice required by
KRE 403 must be undue and it must substantially outweigh the evidence's
probative value before it may be excluded. KRE 403. Undue or unfair
prejudice as used in rule 403 is not to be equated with testimony simply
adverse to the opposing party. Dollar v. Long Mfg., N. C., Inc., 561 F . 2d 613,
618 .(5th Cir. 1977) .
Applying these rules in a case bearing uncanny resemblance to the case
at bar, we found similar evidence relevant where it is necessary for the jury "to
see the entire picture" and further concluded that "evidence that provides
necessary perspective is competent." Gilbert, 838 S .W .2d at 379 (citing Ware v.
Commonwealth, 537 S.W.2d 174 (Ky. 1976) . And although Appellant
characterized this evidence as "other crimes" at trial and now concentrates only
on KRE 401, 402, and 403, it should be noted that KRE 404 applies only to
other events temporally disconnected from the actual crimes at issue . KRE
404(b)(2) . Thus, to fall within KRE 404's prohibition against "conformity" or
"propensity" evidence, an event must be a prior or subsequent event.
Therefore, one may not segregate one course of conduct into several separate
events or steps so as to artificially create a prior or subsequent event for KRE
404 purposes . KRE 404(b)(2) ; see also Morgan v. Commonwealth, 189 S.W.3d
99, 110 (Ky. 2006) overruled on other grounds by Shane v. Commonwealth, 243
S.W .3d 336 (Ky. 2007) (citing Gilbert, 838 S .W.2d 376, 378 (Ky. 1992) ("This is
no different than Johnny Gilbert's use of alcohol, marijuana and pornographic
movies to control, force or induce his stepdaughters into adult sexual activity ;
wherein we stated, "[i]t was necessary that the jury see the entire picture . . .
evidence that provides necessary perspective is competent. Juries do not have
to perform their function of fact-finding in a vacuum .") ; see also Ware, 537
S .W.2d at 174 (Ky. 1976) ("[T]he Commonwealth was not required to limit its
testimony to any single part of the transaction, but was justified in proving
everything that occurred, from the time that the four defendants took charge of
the wandering young woman and placed her in appellant's automobile until the
termination of the whole execrable excursion.") .
In any event, the application of these rules requires a balancing of the
evidence's tendencies appropriately reserved to the trial courts as they stand in
the best position to make such a determination. Glens Falls Ins. Co. v. Ogden,
310 S .W.2d 547 (Ky. 1958) . Thus, appellate courts should not disturb such a
ruling absent an abuse of discretion. Tumey v. Richardson, 437 S .W .2d 201
(Ky. 1969) .
1. KRE 401 & 402
With these rules in mind, we find that the three witnesses' statements
concerning Appellant's possession of pornography were relevant. Our
conclusion derives from a plain reading of KRS 531 .3 10- , which provides in
pertinent part: "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 ." (emphasis added) . As is clear, the
inducement of a minor to engage in a sexual performance is a violation of this
statute. Thus, it is quite conceivable that the jury could have drawn a
reasonable inference that Appellant used the pornography as a catalyst to
arouse the children, inducing them into performing a sexual act while he
observed. See United States v. Postel, 524 F. Supp . 2d 1120, 1123 (N.D. Iowa
2006) (where the defendant distributed child pornography to induce, arouse,
and entice the child victim to engage in prohibited sexual contact with him) .
Therefore, we find the testimony regarding Appellant's possession of
pornography relevant in this case.
We also agree with the Commonwealth that the evidence tended to show
Appellant's scheme of action and was a necessary part of the entire picture
which the jury was entitled to see. This evidence provided necessary
perspective and we conclude that it was competent as it relates to Appellant's
plan, scheme, and intent . Gilbert, 838 S .W.2d at 379 (citing Ware, 537 S .W .2d
at 174) . We reiterate today that juries "do not have to perform their function of
fact-finding in a vacuum." Id. What's important is still important.
Therefore, because the testimony was relevant (as it supported an
element of the crime charged) and because its admission helped to paint the
entire picture surrounding Appellant's criminal activity, we reject the notion
that it was incompetent evidence in this regard .
2. KRE 403
We next turn to Appellant's contention that even if the testimony was
relevant, the undue prejudice created by its mention outweighed its probative
value and, furthermore, that it misled the jury. KRE 403 .
In response, the Commonwealth posits that the three fleeting statements
regarding Appellant's possession of pornography created little prejudice in light
of the facts and circumstances surrounding this case. Furthermore, the
Commonwealth again relies on our decision in Gilbert, 838 S .W.2d at 378, for
the premise that the testimony was probative to the extent that it established
Appellant's plan and intent.
As noted above, virtually all evidence put forward by the Commonwealth
in an attempt to implicate a criminal defendant is prejudicial. But, again, that
prejudice should not be equated with the adverse nature of the evidence. More
is required, particularly when a defendant requests that a trial court grant the
extraordinary remedy of a mistrial .
We believe that the children's testimony regarding Appellant's possession
of the pornography was probative of the "inducement" element outlined in KRS
531 .310, and was part of the scheme used in Appellant's ploy to seduce the
children . As noted above, the jury could have easily drawn the conclusion that
the pornography induced the children into "performing" for Appellant. Thus,
we conclude that the testimony was probative to this end.
With regard to the prejudicial nature of the testimony, we agree that the
testimony was indeed adverse to Appellant, but nothing more. We conclude
that in light of the facts surrounding this case, the testimony complained of by
Appellant appears almost benign-and certainly not devastating. Johnson v.
Commonwealth, 105 S.W .3d 430, 441 (Ky . 2003) (citations omitted) . There was
graphic testimony of sexual conduct between Appellant and two of the victims
and between the three victims themselves. We cannot say that in this case the
three statements were so inflammatory as to reach the conclusion that their
probative value was substantially outweighed by their prejudicial effect. Id.
Appellant suffered no unfairness when the jury heard these statements, and
neither was the jury misled as the testimony directly proved an element of the
charged crimes .
We do, however, pause to note that Officer Greene's testimony may have
had less probative value than that of the children as we recognize that
Appellant's simple possession did not directly probe the question of
inducement even though it circumstantially supported the children's testimony
of its existence and use. However, in any event, given the context of the
evidence adduced, any error was certainly harmless .
Thus, because we find that the testimony was both relevant and in
compliance with E.RE 403, no mistrial was warranted .
B. Imposition of Fines on an Indigent Defendant
Appellant next argues that because of his indigent status the trial court
violated KRS 534 .040(4) when it fined him $1,750 .00 . Because Appellant did
not object to the imposition of the fines at trial, he now requests that we invoke
our authority under RCr 10 .26, and review this issue for palpable error. In
support of his position, Appellant cites Simpson v. Commonwealth, 889 S .W.2d
781, 784 (Ky. 1994) and Moore v. Commonwealth, No . 2006-SC-000794-MR,
2008 WL 3890168, at *5 (Ky. April 21, 2008) .
The Commonwealth notes that we have found palpable error in other
cases similar to the case at bar, but asserts that any ruling on this issue
should not affect the disposition of the convictions .
To review an error under the palpable error standard, we must find that
a manifest injustice has resulted from an error not properly preserved for
appeal. RCr 10.26. We also require a demonstration that
a different outcome
would have resulted at trial or evidence of an error so fundamental as to
threaten a defendant's entitlement to due process of law. Martin v.
Commonwealth, 207 S .W.3d 1, 3 (Ky. 2006) . The burden to demonstrate
palpable error is high, as a defendant must show that the error involved
prejudice more egregious than that occurring in reversible error. Brewer v.
Commonwealth, 206 S .W.3d 343, 350 (Ky. 2006) . Indeed we must make an
ultimate finding that the error was shocking or jurisprudentially intolerable .
Martin, 207 S .W.3d at 4 . Applying these rules, we conclude that a manifest
injustice has occurred because an assessment of fines against an indigent
defendant is jurisprudentially intolerable .
In Huber v. Commonwealth, we questioned, under palpable error review,
a trial court's imposition of fines on an indigent defendant and noted :
KRS § 534 .040(4) provides : "Fines required by this section
shall not be imposed upon any person determined by the
court to be indigent pursuant to KRS Chapter 31 ."
Furthermore, KRS § 23A .205(2) states that "taxation of court
costs against a defendant, upon conviction in a case, shall
be mandatory . . . unless the court finds that the defendant
is a poor person as defined by KRS 453.190(2) and that he or
she is unable to pay court costs and will be unable to pay
court costs in the foreseeable future ." Here, the jury fixed
Appellant's punishment for twelve of the thirteen
misdemeanor convictions at $500 for each Class A
misdemeanor, pursuant to KRS § 534 .040(2)(a) . This must
have been an oversight by the trial court . Appellant was an
indigent person as provided for by the laws of this
Commonwealth, and thus any levying of fines is specifically
prohibited in this instance.
No. 2004-SC-000912-MR, 2006 WL 2452506, at *7 (Ky. August 24, 2006) . We
find no reason to depart from the position we took in Huber. Therefore, we
vacate the trial court's order imposing fines upon the Appellant.
III. Conclusion
For the aforementioned reasons, we affirm Appellant's conviction and
sentencing, however, we vacate the imposition of the fines therein totaling
1,750.00.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Steven Jared Buck
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive, Suite 200
Frankfort, KY 40601
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