RENDERED: MAY 14, 2015 

TO BE PUBLISHED 

uprrtur (Court of eicfirnfurku 

2014-SC-000124-MR 

NERY J. RUIZ APPELLANT 

ON APPEAL FROM CHRISTIAN CIRCUIT COURT 

V. HONORABLE JOHN L. ATKINS, JUDGE 

NO. 13-CR-00004 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION OF THE COURT BY JUSTICE VENTERS 

VACATING AND REMANDING 

Appellant, Nery Ruiz, appeals from a judgment of the Christian Circuit 

Court convicting him of first-degree sexual abuse and first-degree sodomy. As 

grounds for relief Appellant contends that (1) flawed jury instructions and a 

duplicitous indictment violated his right to a unanimous verdict; and (2) the 

Commonwealth improperly elicited testimony from a police officer which 

impermissibly bolstered the credibility of the victim. 

Because the instructions given in this case denied Appellant his 

constitutional right to a unanimous verdict, we vacate the judgment and 

remand for a new trial. Because the bolstering issue may arise upon retrial, we 

also address that issue on the merits. 
I. FACTUAL AND PROCEDURAL BACKGROUND 

Appellant is the stepfather of "Linda," who was six years old during the 

relevant time frame of July 1, 2012, to November 25, 2012. During that time, 

Linda's mother, who is Appellant's wife, was deployed overseas with her Army 

unit. Linda and her younger sister resided with Appellant, their grandmother, 

and their fifteen-year old aunt. On November 28, 2012, Linda told her 

grandmother and aunt that Appellant had, on several occasions, subjected her 

to various forms of sexual contact. Linda's grandmother and aunt took her to 

be examined at a nearby Army hospital. At the hospital, they met with police 

officers Mike Havens and Ben Walden of the Oak Grove (Kentucky) Police 

Department. 

Based upon Linda's allegations, Appellant was indicted on three counts 

of sexual abuse (KRS 510.110) and three counts of first-degree sodomy (KRS 

510.070). At trial, Linda testified that on many occasions within the fivemonth period, Appellant took her into his bedroom and subjected her to 

various forms of sexual contact, including anal sodomy, forcing her to perform 

oral sodomy on him, and forcing her to touch his penis. Officer Havens 

testified about the demeanor of Linda and her family when he met them at the 

hospital. Appellant testified at the trial and denied all of the allegations. He 

suggested that his mother-in-law (Linda's grandmother) disliked him, and for 

that reason she coached Linda to make the allegations. 

P`Linda" is a pseudonym we use here to protect the anonymity of a child 

victim/witness. 

2 
At the conclusion of the evidence, the trial court submitted instructions 

to the jury on one count of first-degree sexual abuse for forcing Linda to touch 

his penis, one count of sodomy for penetrating Linda anally, and one count of 

sodomy for having Linda perform oral sodomy on him. The jury acquitted 

Appellant of anal sodomy, but convicted him of the other two crimes. 

Consistent with the jury's recommendation, Appellant was sentenced to 

imprisonment for twenty years. This appeal followed. 

II. UNANIMOUS VERDICT/"DUPLICITOUS INDICTMENT" ISSUES 

Appellant contends that the jury instructions given in the case deprived 

him of the constitutional right to the verdict of a unanimous jury, and, further, 

that both counts of the indictment were "duplicitous" because they each 

charged a single crime out of numerous indistinguishable allegations, leaving 

him with "no adequate notice of the charges that he needed to defend himself 

against." He also contends for the same reason that the jury instructions, 

which mirrored the charges of the indictment, were duplicitous. Appellant 

concedes that these issues are not preserved but requests that we undertake 

review under the manifest injustice standard contained in RCr 10.26. 2 

A. Unanimous Verdict 

The two jury instructions under which Appellant was convicted stated as 

follows: 

2RCr 10.26 provides that "A palpable error which affects the substantial rights 

of a party may be considered by the court on motion for a new trial or by an appellate 

court on appeal, even though insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination that manifest injustice has 

resulted from the error." 

3 
Instruction No. 5 [first-degree sexual abuse] 

You will find the Defendant guilty of First Degree Sexual Abuse 

under this instruction if and only if, you believe from the evidence 

beyond a reasonable doubt all of the following: 

A. That in this county on or between July 1, 2012, and November 

25, 2012 and before the finding of the indictment herein, he 

subjected the victim to sexual contact involving the victim's hand 

on his penis and the victim touching his penis with her hand; 

AND 

B. That at the time of such conduct the victim was less than 12 

years of age. 

Instruction No. 6 [first-degree sodomy] 

You will find the Defendant guilty of First Degree Sodomy under 

this instruction if and only if, you believe from the evidence beyond 

a reasonable doubt all of the following: 

A. That in this county on or between July 1, 2012, and November 

25, 2012 and before the finding of the indictment herein, he 

engaged in deviate sexual intercourse involving her mouth on his 

penis. 

AND 

B. That at the time of such conduct the victim was less than 12 

years of age. 

Significantly, as the crimes are phrased in these instructions, the jury is 

not directed to consider a specific, uniquely identifiable event (such as, at a 

particular place or time, near a notable date, while wearing particular clothing, 

or while attending a particular birthday or other such event, etc.). Instead, the 

instructions, without any other particularized distinction, broadly refer to the 

five month period of July 1, 2012, and November 25, 2012. Such phrasing 

poses no problem when the evidence itself relates only to a single, 

unambiguous occurrence; but when the evidence equally suggests the 
commission of two or more similar crimes, the potential for unanimous verdict 

problems arise. 

Citing to our recent case Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 

2013), Appellant contends that his constitutional right to a unanimous verdict 

was violated because at trial, the victim testified to multiple indistinguishable 

instances of sexual abuse and multiple indistinguishable instances of sodomy 

as having occurred during the relevant time period, and so there is no 

assurance that each of the jurors were focused upon the same occurrence 

when they cast their respective guilty votes. 

"Section 7 of the Kentucky Constitution requires a unanimous verdict." 

Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). A violation of this 

provision may occur in several ways; however, as relevant here and as we 

explained in Johnson, a general jury verdict based upon a single instruction 

convicting a criminal defendant of a crime when two or more separate 

instances of that single crime were presented at trial violates the requirement 

of a unanimous verdict. 405 S.W.3d at 449. In Johnson, the victim suffered 

two bone fractures at different times, either of which could have supported a 

conviction of first-degree criminal abuse. The defendant in Johnson was 

convicted of criminal abuse under a single crime instruction. We held that a 

unanimous verdict violation occurred because it was entirely possible that 

some jurors voted for a guilty verdict based upon one fracture, while other 

jurors voted for a guilty verdict upon the other. The clear import of Johnson is 

that a verdict is not unanimous unless all of the jurors based their conviction 

5 
of the defendant on the same criminal act; and that the instructions and 

verdict forms must be couched in language that eliminates any ambiguity 

regarding the jury's consensus. 

Here, as Appellant contends, the rule of Johnson was violated. As in 

many cases of child sex abuse, Linda was the only eye-witness to the crimes 

charged against Appellant. Although his brief is conspicuously deficient in 

providing precise citations to Linda's testimony, our review of her one hour and 

forty-one minutes of testimony bears out Appellant's claim. 

Linda testified that Appellant fondled her many times, and on multiple 

occasions forced her to perform oral and anal sex. In its examination of Linda, 

the Commonwealth did not have her isolate and identify any individual episode 

of sexual abuse or sodomy that would relate the specific crime to the 

instructions to be given to the jury. Instead, her testimony described a 

generalized, nonspecific and undifferentiated continuing course of conduct of 

sexual misconduct perpetrated by Appellant using descriptions such as: 

"sometimes he would make me touch his front 3and would make me suck on it 

sometimes"; "sometimes I would be watching TV"; "it would normally happen 

after I got back from school"; "sometimes he would call me to go in there 

because he was going to do all that stuff to me"; when he had me get under the 

covers he "would just tell me to suck on his front"; when Appellant would have 

her suck his front it would be in the bedroom; and that this conduct would 

occur "two or three times per week." 

3"Front" was the term Linda used as a reference to male and female genitalia. 

6 
Consequently, the instructions were prepared on these two charges with 

no distinguishing descriptions that would fairly apprise the jury of exactly 

which criminal episode it was charged to consider. Without an instruction to 

channel the jury's deliberation, the jury was left to adjudicate guilt on any or 

all of the vaguely alleged incidents, resulting in a verdict of doubtful unanimity. 

We are unable to distinguish what occurred in this case from the situation in 

Johnson. Indeed, the violation here is even more apparent, because as the 

number of indistinguishable criminal events described in the evidence 

increases, from two as in Johnson, to the non-specific "many" times and "2 or 3 

times a week" for a five-month period that we see in this case, the probability 

that all jurors agreed on the same event substantially declines. Upon 

application of Johnson and cases preceding it, we are constrained to conclude 

that Appellant's right to a unanimous verdict was violated. 

It is worth noting that the Kentucky Penal Code, KRS Chapters 500-534, 

does not criminalize serial acts of sex abuse or sodomy as a "course of conduct" 

crime, such that a similar series of indistinguishable criminal acts would be 

deemed to constitute the commission of a single crime, and could then be 

prosecuted as such. As suggested by Justice Abramson in her comment below, 

the General Assembly could enact such a crime; however, until it does, 

prosecutors must charge and prove sex crimes as specific, individual acts of 

criminal behavior. 

Having concluded that Appellant's conviction is tainted by unpreserved 

error, we must consider whether the error was palpable under CR 10.26, so as 

7 
to compel relief despite his failure to bring the error to the attention of the trial 

court. When confronted with the same question in Johnson, we said: 

This Court concludes that this type of error, which violates a 

defendant's right to a unanimous verdict and also touches on the 

right to due process, is a fundamental error that is 

jurisprudentially intolerable. For that reason, the error in this case 

was palpable and requires reversal of Appellant's criminal-abuse 

conviction. 

Johnson, 405 S.W.3d at 457. Accordingly, we must regard the error as 

jurisprudentially intolerable. We reverse the judgment and remand the matter 

for a new trial. 

B. Duplicitous Indictment 

Appellant contends that the indictment handed down in this case was 

duplicitous because it combined multiple separate acts of sexual misconduct 

into a single description. A duplicitous indictment is "the joining in a single 

count of two or more distinct and separate offenses." Johnson at 453 (quoting 

United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)). "In other words, a 

duplicitous count includes in a single count that must be charged in multiple 

counts." Id. 

An examination of the indictment in this case discloses that Counts 1-3 

are identical as to the three first-degree sexual abuse charges and that Counts 

1-4 are identical as to the three first-degree sodomy charges. Thus, it would 

seem that the indictment is indeed duplicitous and a violation of the 

parameters as set forth in Johnson. Id. at 453-455. However, because we have 

8 
reversed on other grounds we need not further review this unpreserved issue 

on the merits. 

III. EVIDENTIARY ISSUES: THE MISNOMER OF "INVESTIGATIVE 

HEARSAY;" BOLSTERING/VOUCHING; AND OPINION TESTIMONY ON 

PROBABLE CAUSE 

Appellant also cited as error testimony of Officer Havens, which 

Appellant contends was improper "investigative hearsay," and which, in turn, 

impermissibly bolstered the allegations and credibility of the victim. He also 

cites as error Officer Havens' testimony that "there was probable cause to file a 

report." Because these matters may recur upon retrial, we address them on 

the merits. 

A. Out of court statements to Officer Havens; so-called "investigative 

hearsay" 

The trial court granted Appellant's pre-trial motion to prevent the 

Commonwealth from eliciting "investigative hearsay" from any of its witnesses. 

Despite the order, Appellant complains on appeal that the Commonwealth's 

first witness was permitted to introduce improper "investigative hearsay." Lest 

our repetition of the term "investigative hearsay" be misconstrued, we state 

here without equivocation: there is no such thing in our jurisprudence as 

"investigative hearsay." There is no special rule of evidence known as 

"investigative hearsay." The term simply is not a part of the evidentiary 

lexicon. 

Despite our condemnation in Sanborn v. Commonwealth, 754 S.W.2d 

534, 541 (Ky. 1988) (overruled on other grounds by Hudson v. Commonwealth, 

9 
202 S.W.3d 17, 22 (Ky. 2006)), of what has been termed the "investigative 

hearsay" rule, it is still invoked on occasion. Perhaps we have failed in our 

decisions to vanquish it with sufficient vigor to send the message. We said in 

Sanborn, "Prosecutors should, once and for all, abandon the term 'investigative 

hearsay' as a misnomer, an oxymoron." We now extend that suggestion to all 

of the bench and bar. 

The use of the term exposes a fundamental misconception about the 

nature of the evidence it purports to describe; what it purports to describe is 

far more effectively, and more precisely, explained by the basic definition of 

hearsay itself and the conventional rules of evidence pertaining to hearsay. 

The term, "investigative hearsay" creates the false impression that there is a 

special or unique species of hearsay evidence that abides by its own rules 

removed from the rigors of ordinary hearsay law. Using this inartful term 

serves only to muddle the analysis of issue at hand and to distort the language 

by which hearsay issues must be resolved. 

In its most common application, the term "investigative hearsay" is 

tagged to an out-of-court statement made to, or in the presence of, a police 

officer, such that it tends to explain subsequent investigative action taken by 

the police as a result of the statement. See Gordon v. Commonwealth, 916 

S.W.2d 176, 179 (Ky. 1995); and Young v. Commonwealth, 50 S.W.3d 148, 167 

(Ky. 2001). We said recently in McDaniel v. Commonwealth: "[I]nvestigative 

hearsay' is a 'misnomer . . . derived from an attempt to create a hearsay 

exception permitting law enforcement officers to testify to the results of their 

10 
investigations.' This erroneous basis for the admission of hearsay evidence was 

rejected in a line of cases beginning with Sanborn []." 415 S.W.3d 643, 652 

(Ky. 2013) (citations omitted). 

To be clear, there is no special rule regarding out-of-court statements 

made to police officers investigating crimes. Nor do we need such a special 

rule. The conventional rules of evidence and the traditional evidentiary 

vocabulary are perfectly suited to describe the legal concept at hand. 

"Hearsay" is "a statement, other than one made by the declarant while 

testifying at the trial [ ], offered in evidence to prove the truth of the matter 

asserted." KRE 801(c). "Hearsay is not admissible except as provided by [the 

Rules of Evidence] or by rules of the Supreme Court of Kentucky." KRE 802. 

The principal exceptions to the hearsay rule are found in KRE 801A, KRE 803, 

and KRE 804. There is no exception particularly dealing with statements 

made to police officers. 

An out-of-court statement made to a police officer is judged by the same 

rules of evidence that govern any out-of-court statement by any out-of-court 

declarant. If it is relevant and probative only to prove the truth of the matter 

asserted by the out-of-court declarant, then the statement is hearsay, and its 

admission into evidence is governed by the traditional hearsay rule. And, as 

any other statement, if the out-of-court statement made to a police officer has 

relevance and probative value that is not dependent upon its truthfulness, and 

it is not offered into evidence as proof of the matter asserted, then by definition 

the evidence is not hearsay. 

11 
For example, we held in Daniel v. Commonwealth that a police officer's 

testimony that he had been told by a woman that the defendant had raped 

her, and that, as a result of her statement, he took the woman into protective 

custody, was inadmissible hearsay because its only relevance was to prove the 

fact of the rape; that the officer acted upon the statement to protect the 

woman was not relevant to any issue in the case. 905 S.W.2d 76, 79 (Ky. 

1995). Similarly, in Young v. Commonwealth, we held that because "[t]he only 

purpose for introducing the details of [the out-of-court statement to a police 

officer] would be to prove that Combs's description did not fit Thomas; thus, it 

would have been offered to prove the truth of Combs's description and, thus, 

that Thomas was not the killer." 50 S.W.3d 148, 167 (Ky. 2001). 

Correspondingly, when the reason that a witness has taken certain 

actions is an issue in the case, an out-of-court statement that tends to explain 

that action would not be hearsay because it is not offered "to prove the truth of 

the matter asserted." Rather, it is offered to explain the action that was taken 

and has relevance regardless of whether the statement was true or false. See 

Id. at 167 ("If so, the out-of-court statement is not hearsay, because it is not 

offered to prove the truth of the matter asserted but to explain why the officer 

acted as he did."). It matters not whether the witness was a police officer; the 

same rules applies. 

In such circumstances, because the out-of-court statement would not be 

subject to the hearsay rule, its admissibility would be determined by 

12 
application of other rules of evidence. 4So-called "investigative hearsay" is 

still, fundamentally, hearsay. Chestnut v. Commonwealth, 250 S.W.3d 288, 

294 (Ky. 2008). There is no special kind of evidence known as "investigative 

hearsay;" we have no rule of evidence called the "investigative hearsay rule." 

Use of the term imparts no meaningful information to the analysis that is not 

otherwise supplied by the word "hearsay." 

Of further difficulty in the review of the "hearsay" issue raised by 

Appellant, is that he does not identify with any specificity a single instance 

where Officer Havens offered into evidence an out-of-court statement that we 

can review to determine if it is hearsay. Despite his complaint about 

unspecified "investigative hearsay," Appellant's larger concern with Havens' 

testimony seems to be Havens' description of the demeanor of Linda and her 

family members as he interviewed them about the allegations of rape and 

sexual abuse. The issue seems to fall more naturally within Appellant's 

argument that Havens was improperly permitted to bolster the family members' 

testimony, and we discuss that argument below. 

B. Bolstering 

In response to the prosecutor's questioning, Havens testified that he 

spoke with Linda about "the events that occurred," and based upon this 

discussion he found probable cause to issue a report. In response to a 

question regarding the demeanor of Linda, her aunt, and her grandmother at 

4For example, if a proffered out-of-court statement was relevant for reasons 

unrelated to whether it was true, factors such as those mentioned in KRE 403 may 

influence the trial court's discretion in admitting or excluding the statement. 

13 
the time he met with them to investigate the accusations, Havens said that 

Linda would not look him in the eye. He also explained that the aunt and 

grandmother were upset and anxious. He said they "broke down" as they 

discussed the abuse, and that he, too, at that point, was overcome with 

emotion. 

Appellant complains that the Commonwealth used this demeanor 

testimony in its closing argument to bolster the credibility of its witnesses. 

Appellant concedes that "Havens was very careful not to testify as to the actual 

statements given to him by the witnesses" but "the purpose of his testimony 

was to indirectly vouch for the credibility of the witnesses that would follow." 

He complains that in a case without forensic medical evidence to support the 

charges the prejudicial effect of that testimony is significant. 

As a general rule, a competent witness may testify concerning matters of 

which he has personal knowledge, including events he has personally observed 

and perceived. KRE 602. See Marshall v. Commonwealth, 60 S.W.3d 513, 520 

(Ky. 2001) (Witness's] testimony as to what she observed during that time was 

competent testimony, not hearsay."). We further clarified in Ordway v. 

Commonwealth that a witness may describe another person's "conduct, 

demeanor, and statements [ ] based upon his or her observations to the extent 

that the testimony is not otherwise excluded by the Rules of Evidence." 391 

S.W.3d 762, 777 (Ky. 2013). 

In McKinney v. Commonwealth, we agreed that characterizations by 

witnesses of a defendant's demeanor upon learning of the death of his wife and 

14 
stepchildren and the destruction of his home, as "non-emotional," "nothing out 

of the ordinary," and "calm, didn't show any emotion," were relevant because 

inferences of guilt or innocence could be drawn from such evidence. 60 S.W.3d 

499, 503 (Ky. 2001). The same rule would apply to the demeanor of any 

witness whose demeanor at a specific time was relevant. 5 

In opposition to the general rule, Appellant contends that statements 

describing the anguish of Linda, her aunt and her grandmother were relevant 

only to bolster, or vouch for, their testimony. It is well established that a 

witness may not vouch for the truthfulness of another witness. Stringer v. 

Commonwealth, 956 S.W.2d. 883, 888 (Ky. 1997) (citing Hall v. Commonwealth, 

862 S.W.2d 321, 323 (Ky. 1993)); Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 

2011). We are not persuaded that the situation here implicates our rule 

against improper bolstering. 

Havens did not express a view upon the veracity of Linda and her family. 

He described their demeanor immediately after claims surfaced that another 

family member had engaged in a disturbing pattern of child sexual abuse. He 

said the aunt's and the grandmother's "eyes were swollen" because they had 

been crying; and that they all "broke down." The rule against bolstering or 

vouching addresses attempts by one witness to express belief in the credence of 

another witness. Cf. Bell v. Commonwealth, 245 S.W.3d 738, 744-45 (Ky. 

5KRE 401: "'Relevant evidence' means 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." 

15 
2008) 6(a social worker's statement that a child's testimony seemed 

"spontaneous" and "unrehearsed" constituted implicit improper bolstering, 

because it was an attempt to opine upon the veracity of the child.). Here, the 

overwrought demeanor of Linda's aunt and grandmother as described by 

Haven was not so much of an effort to enhance their credibility—the child's 

accusation alone, believable or not, would reasonably give rise to anguish and 

sorrow. Rather, the testimony more clearly suggests an effort to arouse 

sympathy for Linda and her family, which may pose its own relevancy 

concerns. 

Nevertheless, the witnesses' distress upon hearing of the allegation of 

abuse says nothing about the truth of the allegation. In other words, the 

revelation of the accusation alone, whether true or false and whether believed 

or doubted, would understandably provoke emotions of distress and sadness, 

and it bears little, if any, relevance to a fact in controversy. Upon retrial 

Havens' testimony that Linda's family members were overwrought by the 

allegations, and that he, too, was emotionally affected by their anguish, should 

not be admitted. 

C. Police Report/Probable Cause 

Appellant also complains of Havens' testimony that upon speaking to 

Linda about her experience, he "found probable cause" to prepare a report so 

further investigation would ensue. Although ambiguous, Havens' testimony 

6Overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 

2008). 

.16 
could be readily understood to mean that he personally believed Linda's 

account. While it was certainly relevant and admissible for Havens to explain 

that he filed his report and further investigation followed, his characterization 

of the process as having "found probable cause" certainly expresses sufficient 

belief in the truthfulness of the victim to run afoul of the rule against vouching, 

and more importantly, the officer's belief that "probable cause" existed is 

absolutely irrelevant. Upon retrial, Officer Havens should not be permitted to 

testify as to his personal finding of "probable cause." 

IV. CONCLUSION 

For the foregoing reasons, the judgment of the Christian Circuit Court is 

vacated, and the proceeding is remanded for a new trial consistent with this 

opinion. 

All sitting. Minton, C.J., Abramson, and Noble, JJ., concur. Keller, J., 

dissents. Cunningham, J., dissents by separate opinion in which Barber, J., 

joins. 

ABRAMSON, J., I join the majority but share the dissent's grave concerns 

about this type of continuing sexual abuse case and reiterate that the General 

Assembly can address the problem, as have the legislatures in sister states, by 

adopting a "course of conduct" statute for multiple sex crimes against a minor. 

Johnson, 405 S.W.3d at 456 n.1.' 

CUNNINGHAM, J., DISSENTING: With an abiding and profound respect 

for the members of the majority, I must fervently dissent. 

17 
A bright, articulate and pretty little seven year old girl, we call Linda, 

testified that for a period of time covering the charge under the indictment, and 

while she was six years old, her step-father sexually abused her. The stepfather was entrusted with her care while her mother was deployed with the 

military overseas. That step-father is the Appellant. 

With the assistance of pictures and anatomical dolls, Linda recalled how 

at least two or three times a week, Appellant would take her into his bed and 

sometimes have her commit oral sex upon him, and sometimes make her touch 

his penis. The multiple acts, occurring weekly over a five month period were 

always in his bed, at the same house and usually about the same times. There 

was nothing more distinguishable about these acts than that. No "specific, 

identifiable event." No "notable date, while wearing particular clothing, or 

while attending a particular birthday party or other such event . . . ." There 

was an awful redundancy to the perversion. 

Our Supreme Court today is directing the prosecutor and trial judge to 

do that which is impossible to do—give vivid definition to each individual act. 

Justice Scott and I protested the fallacy of this requirement in Johnson v. 

Commonwealth, 405 S.W.3d 439, 461 (Ky. 2013). We wrote in part: 

The most disturbing result of our decision here today is that it will 

seriously impair the prosecutions and convictions of those charged 

with the molestation and rape of small children. A defendant is 

typically charged with one count of rape of a child under 12 years 

of age. A small four-year-old toddler testifies and, perhaps with 

the aid of anatomical dolls, describes the criminal acts committed 

upon him or her. The victim testifies that the act happened more 

than once—maybe weekly. It will be impossible for the prosecutor 

to nail down a certain one as identified by date and place in order 

to comply with the results of our decision here today. 

18 
Except for the age, this is exactly what we have before us. The ugly old 

chicken given flight in Johnson has come home to roost. 

We will never see this case again. It will be impossible for it to be retried 

under the dictates of the majority. 

Counsel for the Appellant did not object to the instructions given in this 

case. Why should he? Instead of facing scores of charges of sodomy which 

would have been justified under the evidence, he faced only two with 

particularized manner of the offense. The majority today punishes both the 

prosecutor for showing admirable restraint in charging the Appellant, and the 

trial judge for giving the instruction agreed upon by the Appellant, yet rewards 

the defense lawyer for allegedly being asleep at the switch. 

Just as it did in Johnson, we once again encourage the defense bar to 

blind side trial judges by simply remaining mute while the trial court gives 

instructions we now hold as "palpable error." Again, as Justice Scott and I 

lamented in Johnson: 

Our trial judges are being ambushed by such decisions as this one 

when we so lightly deem palpable error when the mistake has not 

been preserved. We are watering down our palpable error 

standard with holdings such as this to the point that it behooves 

the defense lawyer not to object on jury instructions and just allow 

the trial court to walk—unwarned—onto the unanimity land mine. 

Id. at 461. 

A unanimous jury found that the small child we call Linda was 

sodomized by her step-father, not once, but numerous times. We are reversing 

the conviction under such terms as he will now go free. Therein, lies the 

"manifest injustice" in the majority opinion. 

19 
I appreciate the suggestion by the Majority—and as emphasized by 

Justice Abramson's concurrence—that the legislature needs to give their 

attention to a "course of conduct" crime. If that would appease the majority 

and change future outcomes such as the one we have in this case, I welcome it. 

However, I would respectfully submit that we do not need legislative assistance 

to solve a problem we have ourselves created. Furthermore, since the 

unanimity issue arises under our own state constitution, any new crime 

created by our legislature is still going to run afoul of Section 7 of our 

constitution as it is now interpreted by the majority in this case. 

The whole unanimity issue discussed in this opinion exploded upon the 

appellate scene within the last ten years or so. As noted in the Johnson 

majority, the "federal constitution's requirement of unanimity has been held 

not to apply to the states." We recognize, however, that under Section 7 of our 

state constitution, a unanimous decision by the jury has long been required in 

criminal cases. 

Our Section 7 unanimity cases over the first 110 years of our 

constitution were fairly simple and straightforward. The 1942 Cannon decision 

and the 1951 Coomer case dealt with recalcitrant jurors who reported being 

coerced into a vote, thus undermining the unanimous verdict. Cannon v. 

Commonwealth, 163 S.W.2d 15 (1942); Coomer v. Commonwealth, 238 S.W.2d 

161 (Ky. 1951). Even the 1978 Wells case held that alternative methods of an 

assault case—intentional or wanton—was not a breach of the unanimity 

requirement. 

20 
I submit that we jumped the tracks in the Harp case, as well as in Miller 

v. Commonwealth, 283 S.W.3d 690 (Ky. 2009). We focused on the wrong issue. 

Harp was charged with numerous counts of the same crime. These went to the 

jury with identical instructions. The jury found Harp guilty of all counts. 

While the wording is less than clear in Harp, it appears we reversed that case 

on the unanimity issue. And we have thrown Harp into our growing line of 

unanimity cases. 

Miller is similar to Harp, except for one major difference. Miller was not 

convicted on all identical instructions, as Harp was. Miller was rightly decided, 

I believe, for the wrong reason. It was not a unanimity problem. I respectfully 

submit that it was actually an appellate due process problem. Miller was 

denied his right to appeal because he did not know, from the jury verdict, 

which crimes he had been convicted. 

Miller dealt solely with the lack of unanimity of which crimes the 

defendant committed—not acts. Out of seven identical instructions for thirddegree rape, Miller was convicted on only four. It was impossible to determine 

for which of the crimes the jury reached unanimous verdicts. But there was no 

unanimity problem. The jury was unanimous in finding Miller guilty of some 

crimes, but not others. But which ones? 

The critical issue in Miller and in many of our so-called "unanimity" issue 

cases is that the reviewing court cannot be certain Which offense or offenses 

were committed—not whether the jury voted unanimously. So it is not a 

unanimity issue. It is a review problem. 

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I would respectfully submit that the reason we are just recently wrestling 

so much at the appellate level with the so called "unanimity question" is 

because we have mislabeled it. Section 115 of our state constitution states in 

part: "In all cases, civil and criminal, there shall be allowed as a matter of right 

at least one appeal to another court . . . ." Not knowing for which crime you 

are convicted deprives one of any effective means to appeal. 

The jury instruction on unanimity is simple. "The verdict of the jury 

must be in writing, must be unanimous and must be signed by one of you as 

FOREPERSON." 1 Cooper, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 2.07A 

(5th ed. 2006) (emphasis added). The jury is commanded only to reach a 

unanimous decision on the verdict. 

There is no Section 115 review problem in this case. 

Therefore, I strongly dissent. 

Barber, J., joins. 

COUNSEL FOR APPELLANT: 

Allison E. Coffeen 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General 

Taylor Allen Payne 

Assistant Attorney General 

Office of Criminal Appeals 

Office of the Attorney General 

Rosa Ramsey Groves 

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