MODIFIED: OCTOBER 31, 2019

RENDERED: SEPTEMBER 26, 2019

TO BE PUBLISHED

2018-SC-000393-MR

JASON RUDD

V. ON APPEAL FROM LIVINGSTON CIRCUIT COURT

HONORABLE CLARENCE A. WOODALL III, JUDGE

NO. 16-CR-00032

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VANMETER

AFFIRMING

In April 2018, Jason Rafuss Rudd was convicted of first-degree sexual

abuse and of being a first-degree persistent felony offender ( “ PFO1 ” ). He was

sentenced to twenty years ’ imprisonment. Rudd appeals as a matter of right 1

and raises two issues on appeal: (1) that he was denied a unanimous verdict

because the jury was only instructed on one count of sexual abuse, when two

separate allegations were introduced at trial, and (2) that he is entitled to a new

trial because the jury pool was tainted and should have been excused. After an

extensive review of the record, we affirm Rudd ’ s conviction and sentence.

1 Ky. Const. § 1 10(2)(b).I. Factual and Procedural Background.

Rudd and his ex-wife have four children together who visited Rudd every

other weekend. In March 2 0 16, Rudd ’ s sixteen-year-old daughter, S.R., was at

Rudd ’ s residence, which Rudd shared with his parents and two brothers.

While watching television, S.R. fell asleep in Rudd ’ s bed wearing a t-shirt,

underwear, and basketball shorts. Rudd returned home from work and got

into his bed, fully dressed. At 4:00 a.m., S.R. felt Rudd ’ s hands on her inner

thigh and stomach. She then felt Rudd ’ s penis against her as he thrusted his

hips against hers and attempted to remove her shorts. Rudd then got up from

bed and went to the bathroom. At approximately 6:00 a.m., Rudd started to

touch S.R. again. Rudd became more aggressive and attempted to remove her

shorts as he thrusted against her. S.R. rolled over when she thought she was

“ not going to be a virgin anymore. ” She then felt Rudd ’ s “ genitalia ” touching

her vaginal area. Eventually, Rudd got up again and went to the bathroom.

S.R. got up and went to a different bathroom where she found a foreign fluid on

the outside of her clothing and underwear. S.R. reported the abuse to her

mother and step-father the following Monday.

Police interviewed Rudd one week later, and he admitted to sleeping in

the same bed as S.R. that night, and claimed he may have had “ wet dreams, ”

but denied sexually abusing her. Rudd was indicted on one count of firstdegree sexual abuse and of being a PFO1. In April 2018, Rudd was convicted

and sentenced to twenty years ’ imprisonment. This appeal followed.

2II. Rudd Waived any Unanimous Verdict Error.

Rudd argues that the jury instructions given at trial were duplicitous, in

violation of the Kentucky Constitution ’ s requirement of a unanimous verdict.

Ky. Const. § 7. The Commonwealth argues that Rudd waived this argument by

submitting virtually identical jury instructions 2 to those he now cites as

reversible error. We agree.

Rudd was indicted on only one count of first-degree sexual abuse. KRS 3

510.110. However, at trial, S.R. described two separate events that would

constitute sexual abuse 4

— one occurring at 4:00 a.m. and another at 6:00 a.m.

2 The only difference was that the final jury instruction included Rudd ’ s full

name instead of simply “ Defendant. ”

3 Kentucky Revised Statutes.

4 The Commonwealth makes two arguments that the verdict was, in fact,

unanimous. First, the Commonwealth argues that the 4:00 a.m. incident where Rudd

thrusted against S.R. and put his hand on her stomach did not constitute “ sexual

contact, ” as required by KRS 510.110. Sexual contact is defined as “ any touching of

the sexual or other intimate parts of a person done for the purpose of gratifying the

sexual desire of either party[.] ” KRS 510.010(7). In Bills v. Commonwealth, we held

that “ [sjexual contact is not limited to the sex organ[,] ” “ [a]n actual touching is

required, but the contact need not be directly with the body[,] ” and “ [i]t was within the

province of the jury to determine by method of reasonable inference whether the

situation described here amounted to sexual contact. ” 851 S.W.2d 466, 471 (Ky.

1993). Accordingly, the 4:00 a.m. incident met the definition of sexual contact.

The Commonwealth also argues that no unanimity issue exists because the

abuse was one continuous criminal act by Rudd, not two separate incidents. “ [F]or

multiple convictions to be proper there must have been a cognizable lapse in [the

defendant ’ s] course of conduct during which the defendant could have reflected upon

his conduct, if only momentarily, and formed the intent to commit additional acts. ”

Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky. 2012). After the initial act of sexual

abuse, Rudd left the bed and the second incident did not occur until two hours later.

Therefore, a lapse in Rudd ’ s course of conduct occurred, and he had two hours to

reflect upon his conduct before forming the intent to abuse S.R. a second time. See

Ratliff v. Commonwealth, 194 S.W.3d 258, 273 (Ky. 2006) ( “ One incident of applying a

hot cigarette lighter to L.M. ’ s body created the prohibited result under KRS 508.100

3The instruction given by the trial court stated, in relevant part:

You will find the Defendant Jason R. Rudd 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 about March 19, 2016, and before the

finding of the Indictment herein:

He subject S.R. to sexual contact[.]

Because Rudd neither objected to this instruction, nor raised a

unanimity issue, he asks this Court to conduct palpable error review under

RCr 5 10.26. However, a difference exists between an unpreserved error and an

invited error. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37-38 (Ky. 2011)

In Quisenberry, we recognized that “ invited errors that amount to a waiver, i.e.,

invitations that reflect the party ’ s knowing relinquishment of a right, are not

subject to appellate review. ” Id. at 38 (citing United States v. Perez, 116 F.3d

840 (9th Cir. 1997)).

In Thornton v. Commonwealth, this Court held that the appellant invited

the jury instruction error he now complained of “ by affirmatively proposing an

instruction that contains the very defect he now opposes. ” 421 S.W.3d 372,

376 (Ky. 2013). We opined, “ [bjecause Appellant himself proposed the []

(intentional infliction of abuse, i.e., ‘ injury ’ under KRS 508.090(1)), and the

subsequent act of re-applying the hot cigarette lighter to a different part of L.M. ’ s body

constituted a second instance of conduct proscribed by KRS 508. 100[J ” ) (relying in

part on State v. Soonalole, 992 P.2d 541, 543-44 (Wash. App. 2000) (holding two

separate acts of fondling that occurred in the same car ride constituted two separate

“ units of prosecution ” )). Therefore, the two incidents to which S.R. testified were two

separate acts of sexual abuse.

5 Kentucky Rules of Criminal Procedure.

4instruction, which was ultimately given, his right to appellate review of the

claimed instructional error was relinquished. ” Id. at 377. In Webster v.

Commonwealth, we extended the holding in Thornton to include

— under the

umbrella of invited errors

— “ instructions that are substantially similar to those

ultimately given by the trial judge. ” 438 S.W.3d 321, 324 (Ky. 2014).

This case falls squarely in line with our jurisprudence on invited errors.

See Moran v. Commonwealth (Moran II), 399 S.W.3d 35, 38 (Ky. App. 2013). 6

Rudd proposed a jury instruction on first-degree sexual abuse virtually

identical to the one given by the trial court. Rudd failed to object to the

instruction, and instead objected to a lesser-included offense instruction,

which was dropped from the final instruction. Therefore, Rudd “ affirmatively

proposfed] [the] instruction that contain [ ed] the very defect he now opposesf,] ”

and thus, invited the error. Thornton, 421 S.W.3d at 376-77. “ Invited errors

amount to a waiver and are not subject to appellate review. ” Webster, 438

S.W.3d at 324 (citing Thornton, 421 S.W.3d at 376-77).

III. The Jury Pool was Not Tainted.

6 The Court of Appeals initially vacated Moran ’ s conviction based on a

unanimity issue, and the Commonwealth appealed. See generally Moran v.

Commonwealth, 2010-CA-001493-MR, 2012 WL 1365860 (Ky. App. Apr. 20, 2012).

We remanded the case and directed the Court of Appeals to reconsider the decision in

light of our ruling in Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012)

— our

original decision holding errors in jury instructions can be waived as invited error. On

remand, the Court of Appeals held that “ even if the instruction was erroneous and

prevented [the defendant] from receiving a unanimous verdict, Graves precludes

further analysis due to [the defendant ’ s] attorney ’ s waiver of the argument. ” Moran n,

399 S.W.3d at 38.

5The trial court ’ s decision on whether an entire venire panel should be

dismissed is reviewed for abuse of discretion. King v. Commonwealth, 374

S.W.3d 281, 288 (Ky. 2012). “ Accordingly, this Court must determine if the

trial court ’ s ruling was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. ” Edmondson v. Commonwealth, 526 S.W.3d 78, 83 (Ky.

2017). “ The pertinent inquiry, [regarding prospective jurors], is whether it was

reasonable for the trial court to find that [the jurors were] qualified to sit. ”

Maxie v. Commonwealth, 82 S.W.3d 860, 862 (Ky. 2002).

Rudd argues that the jury pool was tainted due to a social media post by

Deputy Ryan Burrow of a neighboring county sheriffs office. The post, more

akin to a personal rant, was extremely negative of a Livingston County jury ’ s

decision

— a jury made up of members of the same venire panel hearing Rudd ’ s

case

— to acquit a defendant of criminal possession of a firearm a week earlier.

The upshot of the rant was that the jurors had put a criminal “ back on the

street ” and that the system failed “ in spite of the hard work put in by law

enforcement^] ” Fifty people had “ liked ” the post and nine had “ shared ” it by

the time the post was brought to the attention of the trial court. The post also

contained thirty-three comments, including comments from two members of

the venire panel in support of the officer ’ s sentiments.

Prior to trial, Rudd moved to dismiss the entire venire panel due to Dep.

Burrow ’ s social media post. The trial court denied the motion and elected to

question individual members of the panel to determine the effect of the social

media post. Roughly 25% of the venire panel acknowledged that they knew of

6the social media post. The trial court, defense counsel, and the

Commonwealth questioned each prospective juror at the bench, out of earshot

of the rest of the venire panel. About halfway through the questioning, the

court allowed the remaining venire panel members to go sit out in the

courthouse hallway. These members included those who had not yet heard of

the social media post and those who had knowledge of the post and had

already been questioned by the trial court. The trial court did not admonish

the panel members to not discuss the social media post while outside the

courtroom. After the trial court finished questioning the prospective jurors

—

and striking a few for cause

— it determined that the remaining jurors who had

knowledge of the post seemed genuine when stating they could still be

impartial and fair in determining the verdict of the case. 7

A defendant has the burden to show “ actual jury prejudice^] ” St. Clair v.

Commonwealth, 140 S.W.3d 510, 532 (Ky. 2004) (citation omitted). We

disagree with Rudd ’ s assertion that the social media post affected the venire

panel and prejudiced Rudd. The trial court, defense counsel, and the

Commonwealth meticulously questioned each prospective juror who admitted

knowledge of the social media post regarding what they knew and if it would

7 Two individuals who admitted knowledge of the social media post sat on

Rudd ’ s final jury panel. One of those jurors indicated that he saw the post and

thought it was disrespectful, but it would not impact him if chosen for the final panel.

The other juror

— who became the jury foreperson

— indicated that she did not know

about the post before being informed of its contents that same morning by another

prospective juror. She stated that the post would not affect her ultimate decision.

Further, no one who had commented online on the deputy ’ s post ended up on the final

jury panel.

7affect the way they view the evidence and determine a verdict. The trial court

struck for cause one of the prospective jurors who had commented online on

the social media post and voiced support for the deputy. The other prospective

juror who had commented on the post online supporting the deputy stated that

she had changed her mind about the previous case ’ s outcome once informed of

its facts by another prospective juror. She also stated the post would not affect

her ability to listen to the evidence. She was not sua sponte struck for cause

by the trial court, and defense counsel made no request to strike, but she was

not drawn for the final juror panel. The rest of the trial court ’ s questioning

continued in a similar manner, and every member of the venire panel who

claimed knowledge of the social media post was questioned extensively. The

prospective jurors ’ responses to questions regarding the influence of the social

media post were in line with what one would expect from a reasonable juror.

See State v. Christensen, 929 N.W.2d 646, 679 (Iowa 2019) ( “ Every reasonable

juror knows that a wide variety of vacuous claims and statements may appear

on social media without the slightest veracity [.] ” ).

“ The principal purpose of voir dire is to probe each prospective juror ’ s

state of mind and to enable the trial judge to determine actual bias and to

allow counsel to assess suspected bias or prejudice. ” Shegog v.

Commonwealth, 142 S.W.3d 101, 110 (Ky. 2004) (citation omitted). The trial

court ’ s actions reflected this principal purpose and no actual prejudice

occurred based on Dep. Burrow ’ s post.

8In addition, Rudd argues that the trial court abused its discretion by

failing to admonish the venire panel to not discuss the social media post when

it directed them into the hallway for the remainder of individual questioning.

RCr 9.70, the relevant rule, provides:

The jurors, whether permitted to separate or kept in charge of

officers, must be admonished by the court that it is their duty not

to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so

should be immediately reported by them to the court, and that

they should not converse among themselves on any subject

connected with the trial, nor form, nor express any opinion

thereon, until the cause be finally submitted to them. This

admonition must be given or referred to by the court at each

adjournment.

In St. Clair, we noted the difference between RCr 9.70 ’ s use of the term

“ juror ” and RCr 9.36(2) ’ s use of the term “ prospective juror. ” 140 S.W.3d at

532. We held that “ trial courts have the discretion to admonish prospective

jurors on these subjects early in the voir dire process, and we believe it would

be the better practice to do so, [however,] RCr 9.70 requires this admonition

only after the jury has been selected and sworn to try the case. ” Id. Until the

jury is selected and sworn, each member of the venire panel remains a

prospective juror and no admonition is required. Id. Accordingly, under the

facts of this case, the trial court did not abuse its discretion.

IV. Conclusion.

For the foregoing reasons, this Court finds no reversible error in the

issues brought before us. Rudd ’ s conviction and sentence are affirmed.

All sitting. All concur.

9COUNSEL FOR APPELLANT:

Shannon Renee Dupree

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney

General of Kentucky

Joseph A. Newberg II

Assistant Attorney General

)

102018-SC-000393-MR

JASON RUDD APPELLANT

ON APPEAL FROM LIVINGSTON CIRCUIT COURT

V. HONORABLE CLARENCE A. WOODALL III, JUDGE

NO. 16-CR-00032

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER

The Opinion of the Court by Justice VanMeter rendered September 26,

2019, is corrected on its face by substitution of the attached opinion in lieu of

the original opinion. Said correction does not affect the holding of the original

Opinion of the Court. The correction is made only to reflect the incorrect cite

error on page 3 of the opinion.

ENTERED: October 31, 2019