Ky. Const. § 110(2)(b).

"Q

VUyume Caurf of

2007-SC-000288-MR

i . INTRODUCTION .

CORRECTED: OCTOBER 27, 2008

RENDERF-D:4,-

I_ HJ en Z

.9 LIS

I Vll~P,

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART AND

REVERSING AND REMANDING IN PART

II . FACTUAL AND PROCEDURAL HISTORY.

OBER

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE GEOFFREY P. MORRIS, JUDGE

NO. 06-CR-000714

2

COMMONWEALTH OF KENTUCKY APPELLEE

Wilbert Harp appeals as a matter of right' from his convictions for indecent

exposure, first-degree sodomy, and seven counts of first-degree sexual abuse.

Because the jury instructions on the seven sexual abuse counts were identical,

containing no identifying characteristics that required the jury to differentiate

among each of the counts, we reverse Harp's sexual abuse convictions . We

otherwise affirm Harp's indecent exposure or sodomy convictions.

Harp moved in with his girlfriend and her four-year-old daughter, B .B .

According to B.B ., Harp began sexually molesting her sometime after they all
moved to a different apartment several months later . According to B.B., Harp

engaged in a variety of sexual acts with her while her mother was at work. B.B .

eventually disclosed the incidents to her mother, but the mother took no action at

that time because Harp assured the mother that nothing improper was occurring .

While B.B . and her aunt were looking at a magazine that contained an

advertisement depicting a couple kissing, B .B. told the aunt that Harp had done

the same thing to her. The aunt reported B .B.'s statements, which eventually led

to Harp's being questioned by the police. Harp admitted inappropriate contact

with B .B . but blamed the contact on B .B .'s curiosity about sex. After being

admitted to a psychiatric hospital, Harp wrote a letter to his psychologist

describing sexual contact with B .B. but, again, blaming B .B. for the contact.

Harp was ultimately indicted for one count of first-degree sodomy, seven

counts of first-degree sexual abuse, and one count of indecent exposure . A jury

convicted Harp on all charges contained in the indictment . Harp was sentenced

to twenty-five years for the sodomy conviction; two and one-half years'

imprisonment on each sexual abuse conviction; and ninety days for the indecent

exposure conviction, all to run concurrently. This appeal followed .

Ill . ANALYSIS .

Harp raises six issues. He contends that the trial court erred by

(1) admitting the letter he wrote to his psychologist, (2) admitting evidence of

sexual contact with B .B . not charged in the indictment, (3) finding B .B . competent

to testify, (4) allowing improper bolstering of B.B.'s testimony, (5) failing to direct

a verdict on the indecent exposure charge, and (6) failing to instruct the jury
properly because the instructions on multiple counts of first-degree sex abuse

failed to require the jury to make separate factual findings and reach a

unanimous verdict on each count.

Because we agree with Harp that the jury instructions regarding the sexual

abuse charges were erroneous, we shall discuss that issue first. Since the

flawed sexual abuse instructions caused Harp no discernible prejudice in the

sodomy and indecent exposure convictions, we affirm those convictions . We

must also address the remaining issues because they are either pertinent to the

sodomy or indecent exposure convictions, or concern matters likely to arise upon

remand of the sexual abuse charges.

follows:

Harp argues that it was error for the trial court not to add language to each

of the seven sexual abuse instructions so that the jury would be required to

distinguish from the evidence one count from another. We agree .

Each sexual abuse instruction was identical and read, in pertinent part, as

You will find the defendant, Wilbert Hiatt Harp, guilty under this

instruction if you believe from the evidence beyond a reasonable

doubt, all of the following:

(a) That in this county, between the 1 st day of December 2003

and the 1 st day of February 2006, the defendant subjected

[B .B.] to sexual contact;

AND

A. Trial Court Committed Reversible Error in

Failing to Add Distinguishing Characteristics

to Each Sexual Abuse Charge.

(b) That at the time of such contact, [B.B.] was less than 12 years

of age .
We have previously held that "when multiple offenses are charged in a

single indictment, the Commonwealth must introduce evidence sufficient to prove

each offense and to differentiate each count from the others, and the jury must

Q

be separately instructed on each charged offense.

Thus, we have clearly

held-before Harp's trial-that a trial court errs in a case involving multiple

charges if its instructions to the jury fail "factually [to] differentiate between the

separate offenses.,,3 Very recently-after Harp's trial-we similarly reinforced

that holding by again explaining that "[w]hen the evidence is sufficient to support

multiple counts of the same offense, the jury instructions must be tailored to the

testimony in order to differentiate each count from the others.

,4

Based on this precedent, it is apparent that the trial court erred by

submitting seven identical sexual abuse instructions to the jury. We again

instruct the bench and bar of the Commonwealth that in a case involving multiple

counts of the same offense, a trial court is obliged to include some sort of

identifying characteristic in each instruction that will require the jury to determine

whether it is satisfied from the evidence the existence of facts proving that each

of the separately charged offenses occurred .

Having found that the instructions at issue were erroneous, we now turn to

the more difficult question of whether that error may be deemed harmless .

Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002).

Combs. v. Commonwealth, 198 S.W.3d 574, 580 (Ky. 2006).

Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008). Accord State v. Rudd,

759 S.W.2d 625, 630 (Mo.App. 1988) ("We agree with the general proposition that if

multiple offenses are submitted against a single defendant, the different offenses

submitted should be distinguished. As much is inherent in the well established rule

that the giving of distinctive instructions is a proper method of submitting multiple

offenses.").
Despite our earlier statements seemingly to the contrary, we now hold that a

failure to include proper identifying characteristics in jury instructions is reversible

error, provided that a timely objection to the error has been made.

. We recognize, of course, that an erroneous jury instruction may

sometimes be an unfortunate, yet ultimately harmless error. 5 But a party

claiming that an erroneous jury instruction, or an erroneous failure to give a

necessary jury instruction, bears a steep burden because we have held that "[i]n

this jurisdiction it is a rule of longstanding and frequent repetition that erroneous

instructions to the jury are presumed to be prejudicial ; that an appellee claiming

harmless error bears the burden of showing affirmatively that no prejudice

resulted from the error.

,6 Regrettably, we have sometimes failed to utilize the

presumption of prejudice associated with erroneous jury instructions in at least

some of our recent decisions .' However, to clear up any possible confusion

among the bench and bar of the Commonwealth, we now expressly return and

adhere to the presumption of prejudice inherent in an erroneous instruction as

expressed in McKinnev. Of course, that presumption can be successfully

5

s

See, e.g., Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35

(1999) (finding omission of element of offense in jury instruction harmless error);

RCr 9.24.

McKinnev v .Heisel , 947 S.W.2d 32, 35 (Ky. 1997). We recognize that McKinnev is a

civil case. But we believe the heightened stakes of a criminal case must lead to at

least an equally, if not more rigorous, approach to harmless error in jury instructions .

Indeed, McKinney's proper approach to jury instruction errors has been recognized

in criminal cases. See Batts v. Commonwealth, 2005 WL 3500779 at *3 (Ky.

Dec. 22, 2005); Wilson v. Commonwealth , 2004 WL 2624155 at *3 (Ky. Nov. 18,

2004); Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky.App. 2000).

See, e.g., Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006); Wright v.

Commonwealth , 239 S.W.3d 63,68 (Ky. 2007).
rebutted by showing that the error "did not affect the verdict or judgment.

,8 But

viewed through that proper procedural lens, the erroneous instructions in the

case at hand cannot be deemed harmless.

Our precedent of longstanding leaves no doubt that we have adhered to

the "bare bones" principle of jury instructions . 9 Indeed, former Chief Justice

Palmore apparently coined the "bare bones" phrase in a 1974 civil case, although

the phrase has been similarly applied to criminal cases.° We have explained

this bare bones approach to instructions as meaning that as a general matter,

"evidentiary matters should be omitted from the instructions and left to the

lawyers to flesh out in closing arguments."" Or, as we more recently explained,

jury instructions should tell the jury what it must believe from the evidence in

order to resolve each dispositive factual issue while still "providing enough

information to a jury to make it aware of the respective legal duties of the

parties ."'

We remain committed to the bare bones instructional principle, confident

that it works well in most cases to "pare down unfamiliar and often complicated

issues in a manner that jurors, who are often not familiar with legal principles,

9

10

5 C.J .S. Appeal and Error § 968 (2008). See also Emerson v. Commonwealth,

230 S .W.3d 563, 570 (Ky. 2007) (stating that an error is harmless if there is "no

reasonable possibility it affected the verdict. . . . . . ) .

See, e.g., Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997).

Cox v. Cooper, 510 S.W .2d 530, 535 (Ky. 1974) ("Our approach to instructions is

that they should provide only the bare bones, which can be fleshed out by counsel in

their closing arguments if they so desire.") . We recognized Justice Palmore as the

originator of the "bare bones" phraseology in Olfice, Inc . v. Wilkev, 173 S .W.3d 226,

228 (Ky. 2005).

Baze, 965 S.W.2d at 823.

Wilkev, 173 S.W.3d at 229.
"s can understand. But instructions must not be so bare bones as to be

misleading or misstate the law.'`

As mentioned, we have determined that the law requires specific

identifiers to be placed in each count in a case involving multiple counts of the

same offense . So a failure to include at least some basic evidentiary

identification in the sexual abuse instructions at hand was a misstatement of the

law. Furthermore, the lack of specificity in the instructions readily lends itself to a

potential unanimity problem . ' 5

No doubt able counsel could--and in this case, did--attempt to "flesh out"

the generic sexual abuse instructions in closing argument by telling the jury

which specific act of sexual abuse was covered by which specific count of the

charges . And, in dictum, we have appeared to approve of such attempted

corrective and curative action by the Commonwealth.

Earlier this year, in Bell v. Commonwealth, we encountered a similar

situation whereby a trial court gave multiple jury instructions on sexual offenses

without including any distinguishing characteristics .

16 And earlier in the opinion,

we had already held that Bell's convictions must be reversed due to the trial

13

14

15

16

Bell , 245 S.W.3d at 744 ("The wording of the instructions, however, calls into

question the unanimity of the verdict. A criminal defendant, of course, is entitled to a

unanimous verdict . Ky. Const. § 7, as interpreted in Cannon v. Commonwealth,

291 Ky. 50, 163 S .W.2d 15 (1942); RCr 9.82(1). When the evidence is sufficient to

support multiple counts of the same offense, the jury instructions must be tailored to

the testimony in order to differentiate each count from the others. While the

Commonwealth differentiated the offenses during its closing arguments, there is

nothing in the written instructions to distinguish each count of rape, sexual abuse and

sodomy.") .
17

18

19

20

court's unduly coercive actions during jury deliberations." But we exercised our

discretion to address the jury instruction issue because it was likely to occur on

retrial .We held that the failure to include any distinguishing characteristics in

the instructions was error but found that the error would have been harmless

because

[t]he Commonwealth, in its closing, identified the five distinct

incidents [of rape or sexual abuse]. Because the jury ultimately

found Bell guilty of all five counts of sexual abuse, it can be

rationally and fairly deduced that each juror believed Bell was guilty

of the five distinct incidents identified by the Commonwealth .' 9

In essence, our imprecise and unfortunate dictum in Bell can be taken to

stand for the proposition that able counsel may "cure" a defective jury instruction

in closing argument. But we very recently made it clear in a unanimous opinion

that jury instructions, which a jury is presumed to follow, must be based solely

upon the evidence ; and "an attorney's arguments do not constitute evidence ."2°

/d. at 742-43.

Because we had already found that Bell's convictions must be reversed for other

reasons, our discussion of the jury instruction issue was obviously dictum. Thus, our

statements on the jury instruction issue are not binding precedent . Indeed, perhaps

the most esteemed jurist in our nation's history, Chief Justice John Marshall,

cautioned against later courts being bound by the dicta of a previous court. See

Cohens v. State of Virginia , 19 U.S. 264, 399-00, 5 L.Ed.257, 6 Wheat. 264 (1821)

("It is a maxim not to be disregarded, that general expressions, in every opinion, are

to be taken in connection with the case in which those expressions are used. If they

go beyond the case, they may be respected, but ought not to control the judgment in

a subsequent suit when the very point is presented for decision . The reason of this

maxim is obvious. The question actually before the Court is investigated with care,

and considered in its full extent. Other principles which may serve to illustrate it, are

considered in their relation to the case decided, but their possible bearing on all other

cases is seldom completely investigated .") .

Bell, 245 S.W.3d at 744.

Dixon v. Commonwealth, S .W.3d , 2008 WL 2165961 at * 7 (Ky. May 22,

2008).
Therefore, we reached the plain conclusion that "the arguments of counsel are

not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions ."21

Our conclusion that arguments of counsel cannot rehabilitate erroneous

jury instructions is directly in accordance with the United States Supreme Court's

pronouncement that "arguments of counsel cannot substitute for instructions by

the court" because a defendant's right to have the jury base its deliberations

solely upon the evidence cannot be "permitted to hinge upon a hope that defense

counsel will be a more effective advocate" than the prosecution. 4r, in other

words, the concept of fleshing out bare bones instructions permits counsel to

attempt to explain the instructions to the jury but does not permit counsel to

attempt to correct erroneous jury instructions.

Based on the foregoing, it is clear that the instructional error in the case at

hand was not cured by the Commonwealth's closing argument. Indeed, we have

previously stated in a similar case that if the issue had been preserved, we would

have found a similar instructional error to necessitate reversal. 23 Likewise, we

find that the Commonwealth has failed to overcome the presumption of prejudice

in the case at hand,24 meaning that the failure to include identifying language in

the sexual abuse instructions necessitates reversal of Harp's sexual abuse

21

22

23

24

Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).

Miller, 77 S.W.3d at 576 .

In its brief, the Commonwealth seems mainly to contend that there was evidence to

support the giving of seven distinct sexual abuse instructions . With that

unremarkable conclusion, we agree. Rather than serving as a method to save

Harp's convictions, however, the Commonwealth's argument merely serves to

highlight how easy it would have been for the trial court to have followed our earlier

directive to include identifying characteristics in each instruction .
Harp contends that it was error to admit into evidence a letter he wrote

while being treated at a psychiatric hospital . We disagree.

As we have stated many times, we may disturb a trial court's decision to

admit evidence only if that decision is an abuse of discretion.26 And a trial

judge's decision represents an abuse of discretion only if the decision "was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles .

,27

Generally, Kentucky Rules of Evidence (KRE) 507 protects information

gathered by a "psychotherapist"28 from disclosure . 29 But the General Assembly

has expressly abolished the patient privilege in child abuse cases.30 And the

25

26

27

2s

2s

30

convictions . Bell is overruled to the extent that its dictum suggests that a failure

to include the requisite specific identifying language in jury instructions can be

rendered a harmless error by the curative powers of counsel's closing

argument.

B. No Error in Admitting Letter to Psychologist.

We decline Harp's invitation to find that the sodomy instruction was similarly fatally

flawed . No unanimity problem is apparent in regards to that instruction because

Harp was charged with only one count of sodomy. Our precedent does not support a

conclusion that a trial court is required to include any identifying evidentiary detail in

instructions in which a defendant is charged with only one count of an offense . See

Bell , 245 S.W.3d at 744 ("When the evidence is sufficient to support multiple counts

of the same offense, the jury instructions must be tailored to the testimony in order to

differentiate each count from the others.") (emphasis added).

See, e.g., Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006).

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

A licensed psychologist is considered a psychotherapist . KRE 507(a)(2)(B).

See KRE 507(a)(2)(B).

See Kentucky Revised Statutes (KRS) 620.050(3) ("Neither the husband-wife nor

any professional-client/patient privilege, except the attorney-client and clergypenitent privilege, shall be a ground for refusing to report under this section or for

excluding evidence regarding a dependent, neglected, or abused child or the cause

thereof, in any judicial proceedings resulting from a report pursuant to this section .

1 0
case at hand is a criminal proceeding involving an abused child-B.B. 3' So

KRS 620.050(3) applies, meaning that the trial court did not abuse its discretion

in admitting the letter . 32

C. No Error to Admit Evidence of Other Crimes, Wrongs, or Bad Acts.

Before trial, the Commonwealth gave notice that it intended to introduce

evidence of all sexual contact between Harp and B.B ., regardless of whether the

conduct was specifically contained in the indictment against Harp . Harp

unsuccessfully sought to exclude the evidence of uncharged sexual contact with

B.B., which the trial court denied. On appeal, Harp contends that the admission

of the evidence in question was erroneous. We disagree.

KRE 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

31

32

This subsection shall also apply in any criminal proceeding in District or Circuit Court

regarding a dependent, neglected, or abused child."); Mullins v. Commonwealth,

956 S.W.2d 210, 211-12 (Ky. 1997).

KRS 600.020(1)(e) defines an abused or neglected child as a child whose health or

welfare is harmed or threatened with harm when a parent, guardian or person

exercising custodial control or supervision of the child "[c]ommits or allows to be

committed an act of sexual abuse . . . upon the child. . . ."

Even if we accepted for argument's sake any of Harp's arguments and assumed that

the letter should not have been admitted, its admission would have been a harmless

error because the gist of the letter (i.e ., Harp's admission of having sexual contact

with B.B.) was cumulative of Harp's admission to the authorities that he engaged in

sexual conduct with B.B. See, e.g., Coulthard v. Commonwealth, 230 S.W.3d 572,

585 (Ky. 2007) ("Thus, not only were the circumstances surrounding Appellant's

refusal to provide fingerprint samples undisputed, but also the evidence was

cumulative in the sense that the jury already heard a plethora of evidence regarding

evasive actions taken by Appellant. Under these circumstances, we simply cannot

see how there is any reasonable possibility that this evidence contributed to the

jury's verdict.") (footnote omitted) . Furthermore, the evidence against Harp was

overwhelming . See, e.g., Brewer v. Commonwealth , 206 S.W.3d 343, 352 (Ky.

2006) (holding that admission of improper investigatory hearsay was harmless error

due to its cumulative nature and because evidence of defendant's guilt was

overwhelming).
conformity therewith ." However, such evidence is admissible if offered for

another purpose, "such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

. . . " 33 In determining the

admissibility of KRE 404(b) evidence, we focus upon three matters:

(1) relevance, (2) probativeness, and (3) prejudice . 34 As stated previously, we

may reverse a trial court's decision to admit evidence only if that decision

represents an abuse of discretion .

The Commonwealth bore the burden of proving each element of each

charge against Harp beyond a reasonable doubt. Thus, the Commonwealth

was required to offer proof of Harp's intent. Accordingly, the evidence of other

sexual contact between Harp and B.B ., including, among other things, Harp's

exposing his genitals to B .B. on multiple occasions, was both highly relevant and

probative . Additionally, the evidence Harp challenges on appeal also was

admissible as proof of at least identity and absence of mistake or accident. 38

33

34

35

36

37

38

KRE- 404(b)(1).

Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005).

KRS 500.070(1).

See, e.g., KRS 510.148(1) (requiring, inter alia, person to intentionally expose his

genitals to be guilty of indecent exposure in the first degree)

See, e.g., Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002) ("Appellant

asserts that admission of C.M.'s testimony that Appellant had sexually abused her

` more than one time' violated the KRE 404(b) proscription against admission of

evidence of other crimes, wrongs, or acts. However, this testimony falls within the

exceptions for evidence offered to prove intent, plan, or absence of mistake or

accident. KRE 404(b)(1).").

1 2
As we have definitively held, "evidence of similar acts perpetrated against

the same victim are almost always admissible.

. . .',39 And we do not perceive

that any prejudice suffered by Harp was sufficient to overcome the general rule

regarding admissibility of similar acts perpetrated against the same victim . Thus,

we find no error in the trial court's decision to admit the KRE 404(b) evidence in

question.

D. No Error in Finding-B .B. Competent to Testify .

Harp contends that the trial court erred by finding B .B. competent to

testify . We disagree .

Under KRE 601, a witness is competent if the witness can "perceive

accurately that about which she is to testify, can recall the facts, can express

herself intelligibly, and can understand the need to tell the truth . The competency

bar is low with a child's competency depending on her level of development and

upon the subject matter at hand. ,,40 Of particular bearing to this case is the fact

that "[a]ge is not determinative of competency[,] and there is no minimum age for

testimonial capacity.

'41 Because "[t]he trial court is in the unique position to

observe witnesses and to determine their competency[,]" we have held fast to the

principle that "[t]he trial court has the sound discretion to determine whether a

witness is competent to testify.

,42

39

40

41

42

Id., citing Price v. Commonwealth, 31 S.W.3d 885, 888 n. 4 (Ky. 2000).

Pendleton y. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002).

Id.

Id.

1 3
B.B. demonstrated that she knew such fundamental factual things as her

age, date of birth, grade level, school name, and teacher's name. She also was

able to recall her latest birthday party and Christmas presents, as well as the

names of her former schools. At trial, B .B. identified Harp as the perpetrator and

was able to provide details of the acts committed against her by Harp.

Importantly, B .B. indicated when she was unable to recall a fact or event.

A witness is not deemed incompetent solely because of young age or

inability to recall each and every detail of life with mathematical precision. And

B.B . demonstrated a sufficient ability to recall the most pertinent facts intelligibly

while knowing the importance of telling the truth. So from our review of the

record, we are satisfied that the trial court did not abuse its discretion in finding

B .B. competent to testify . 43

E. No Bolstering of B.B .'s Testimony Sufficient to

Constitute a Palpable Error Occurred .

Harp contends that B.B.'s testimony was improperly bolstered by the

testimony of Valerie Mason, a forensic interviewer, and Detective Rhonda

Speaker of the Louisville Metro Police Department's Crimes Against Children

Unit. Harp admits that this issue is unpreserved . So our review is limited to

determining if any error is palpable. An error is palpable only if it "is so

43

44

See id. at 526 ("A review of D.A.'s testimony reveals that she was able to identify

Appellant as the perpetrator, and could provide details of the acts committed against

her. Furthermore, Appellant had the ability to cross-examine D.A. and undermine

her credibility with the jury, if he felt her testimony had been coerced by the social

worker. No error occurred.").

Kentucky Rules of Criminal Procedure (RCr) 10.26.

1 4
manifest, fundamental and unambiguous that it threatens the integrity of the

judicial process. ,,45

We question whether bolstering occurred at all in this case. Even

assuming that it did, we disagree with Harp's contention that any bolstering

constituted a palpable error.

Generally, "a witness's credibility may not be bolstered until it has been

attacked . ,46 However, the testimony at issue is not a bolstering of B .B.'s

testimony. Indeed, neither Mason nor Speaker directly spoke of B.B.'s character

for truthfulness. However, the jury could have inferred that Mason was indirectly

vouching for B.B .'s credibility by testifying about things like the fact that she had

conducted more than 3,000 interviews with children but that not all of those

cases resulted in the issuance of charges . Similarly, the jury could have inferred

that Speaker was indirectly vouching for B .B.'s credibility by testifying that she

had investigated cases "Men) she had found insufficient evidence to charge a

suspect. It is important to note, however, that B.B.'s credibility was not totally

unchallenged because some evidence was introduced showing that B.B .'s own

mother allegedly did not believe B .B. when she first disclosed Harp's alleged

sexual misconduct.

Because neither Mason nor Speaker directly vouched for B.B .'s credibility,

we question whether any improper bolstering of B .B .'s credibility occurred. But

even if we assume for argument that Mason and Speaker's testimony

45

46

Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

Miller ex rel . Monticello Baking Co. v. Marymount Medical Center, 125 S.W.3d 274,

283 (Ky. 2004).

1 5
47

48

constitutes, at most, an indirect bolstering of B.B.'s credibility, that error is simply

not so fundamental and intolerable as to have threatened the integrity of the trial .

In short, the fact that a jury may have been able to infer that a witness was, at

most, indirectly vouching for the credibility of another witness is simply not the

stuff from which palpable errors are made.

follows:

F . Trial Court Properly Denied Directed

Verdict as to Indecent Exposure Charge .

Harp contends that the trial court erred in denying his motion for a directed

verdict on the indecent exposure charge. We disagree .

The familiar standard for ruling on a motion for directed verdict is as

On motion for directed verdict, the 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.

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 . 48

The parties disagree whether this issue is preserved as Harp raised a different

ground for his directed verdict motion before the trial court than he does on appeal .

Of course, for preservation purposes, an appellant is not permitted to make a

different argument on appeal than was made in the trial court. Kennedy v.

Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976). Thus, preservation of this issue is

questionable, at best. However, Harp's argument would fail even if the issue were

perfectly preserved .

Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991).

1 6
A person commits the offense of indecent exposure in the first degree if he

"intentionally exposes his genitals under circumstances in which he knows or

should know that his conduct is likely to cause affront or alarm to a person under

the age of eighteen (18) years." 49 The jury instruction on this charge was in

accordance with KRS 510.148(1). Nevertheless, Harp contends that the

indecent exposure charge merged with the sexual abuse charge.

B.B . testified that once Harp showed her his penis and masturbated in

front of her to the point of ejaculation . That specific episode could not have been

simultaneously covered by a sexual abuse charge because exposure of Harp's

penis without any touching of or by B .B. would have been insufficient to have

constituted sexual abuse.50 Thus, it was clearly not unreasonable for the jury to

find Harp guilty of indecent exposure .

IV. CONCLUSION.

For the foregoing reasons, Wilbert Harp's indecent exposure and sodomy

convictions are affirmed . Harp's sexual abuse convictions are vacated, and

those offenses are remanded to the trial court for proceedings consistent with

this opinion.

49

50

51

KRS 510.148(1).

KRS 510.110, which governs sexual abuse in the first degree, requires a person to

subject "another person" to sexual contact. Thus, exposing one's own genitals,

without any touching by another person, would not constitute sexual abuse in the first

degree.

Cf. Combs, 198 S.W.3d at 580-81 (stating that evidence that defendant masturbated

could be evidence of indecent exposure);

1 7
All sitting . Minton, C .J . ; Abramson, Cunningham, Noble, and Venters, JJ.,

concur. Schroder, J., concurs in result only by separate opinion . Scott, J .,

concurs in part and dissents in part by separate opinion .

COUNSEL FOR APPELLANT:

Daniel T. Goyette

Louisville Metro Public Defender

Advocacy Plaza

717-719 West Jefferson Street

Louisville, Kentucky 40202

Elizabeth B. McMahon

Assistant Public Defender

Office of the Jefferson District Public Defender

100 Advocacy Plaza

717-719 West Jefferson Street

Louisville, Kentucky 40202

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Bryan Darwin Morrow

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601
,*uyrtmr Courf of ~RrufurkV

2007-SC-000288-MR

WILBERT HARP APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE GEOFFREY P . MORRIS, JUDGE

NO. 06-CR-000714

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION BY JUSTICE SCHRODER

CONCURRING IN RESULT ONLY

RENDERED: OCTOBER 23, 2008

NOT TO BE PUBLISHED

I concur in result only, because, as to part III(E), I believe the majority erred in its

legal analysis and in leaving an issue open which is likely to arise again on retrial. The

majority recognized that the jury could infer that Mason and Speaker were "indirectly"

vouching for B.B .'s credibility, but then questioned whether this was error because they

did not "directly" vouch. In Bell v. Commonwealth, 245 S .W .3d 738, 744-45 (Ky. 2008),

we recognized that a witness does not have to explicitly vouch for another witness's

credibility in order for the testimony to be improper, but that implicit vouching runs afoul

of the law as well. Id . Therefore, under Bell , I believe the testimony was error.

I am also puzzled by the majority's apparent belief that because B.B .'s credibility

was challenged somewhat through the mother's testimony, that this could open the door

for the vouching. If the majority is equating the mother's testimony with evidence

referring to character for untruthfulness, this would open the door only to evidence
referring to character for truthfulness. KRE 608(a). The majority recognized, and I

agree, that Mason's and Speaker's testimony did not refer to character for truthfulness .

Therefore, it would not be admissible under KRE 608(a).

For the aforementioned reasons, I believe the admission of the testimony at

issue was error. As to the convictions we are affirming, however, I agree with the

majority that no palpable error occurred, and would affirm those convictions . However,

because the case is being remanded in part, we also have the issue of the testimony

arising again on retrial . Because I believe the testimony was error, I believe it should be

inadmissible on retrial. The majority, although concluding that even if the testimony was

error, it was not palpable, did not actually decide if it was, in fact, error. In order to avoid

confusion on retrial, or the issue arising again on appeal, I believe it was incumbent

upon the majority to actually decide whether or not this testimony is, in fact, error. For

these reasons, I concur in result only.
RENDERED: OCTOBER 23, 2008

NOT TO BE PUBLISHED

~sixpreme C~aixrE of `irufurkV

2007-SC-000288-MR

WILBERT HARP APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE GEOFFREY P. MORRIS, JUDGE

NO. 06-CR-000714

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION BY JUSTICE SCOTT CONCURRING IN PART

AND DISSE NTING IN PART

Although I concur with the majority's opinion on the other issues, I must

dissent on issue IIIA as the Commonwealth clearly pointed out to the jury the

separate items of evidence supporting each of the seven charges ; thus, the error

was clearly harmless in this instance. I concede, however, that l, too, am

displeased at the frequency with which our trial courts fail to differentiate multiple

instructions from each other. This displeasure, however, is not sufficient to

obviate the "harmless error' rule in instances like these; where there is no

question that differentiating factors existed in the evidence and were pointed out

to the jury in closing by the Commonwealth .

Thus, the majority's reliance on Dixon v. Commonwealth, --- S .W.3d ---,

2006-SC-000682, 2008 WL 2165961 (Ky. May 22, 2008) to overrule the

harmless error analysis in Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky.
2008), is simply inappropriate . As the court in Dixon acknowledged, "the issue

[therein was] not whether the instructions were erroneous"- even though they

did fail to differentiate which of the two "hammer blows" supported the separate

offenses. Dixon, --- S-W.3d ---, 2006-SC-000682, 2008 VVL 2165961 at *7 (Ky.

May 22, 2008). Notably, Dixon only dealt with double jeopardy issues and

affirmed the conviction discussed therein .

Moreover, the comment that "an attorney's arguments do not constitute

evidence," has never been questioned . See, e.-g ., 75A Am.Jur.2d Trial § 443

(2008). Its purpose is to collate the evidence with the instructions, which is what

occurred here. Thus, the commands of RCr 9 .24, that "[n]o error . . . in anything

done or omitted by the court . . . is ground for . . . setting aside a verdict . . .

unless it appears to the court that the denial of such relief would be inconsistent

with substantial justice," should be followed.

Here, as in Bell, the majority acknowledges that, "[n]o doubt able counsel

could -and in this case, did attempt to `flesh out' the generic sexual abuse

instructions in closing argument by telling the jury which specific act of sexual

abuse was covered by which specific count of the charges." These were

reminders by counsel as to what the evidence was - not evidence itself . Now,

by unequivocally holding "that a failure to include proper identifying

characteristics in jury instructions is reversible error" and overruling Bell, the

majority effectively prohibits the application of harmless error in these instances.

It is for this reason I respectively dissent on this issue.

1 The majority opinion refers to the harmless error review in Bell as dicta, which it

was clearly not. Dicta is a statement in an opinion which is unnecessary to the ultimate

determination . Williams v. West, 258 S.W.2d 468, 471 (Ky. 1953). The analysis

referenced in Bell rendered the error harmless. Bell , 245 S.W.2d at 744.

2
'Suprrmt (~Vurf of ~Rrufurhv

2007-SC-000288-MR

WILBERT HARP APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE GEOFFREY P. MORRIS, JUDGE

NO. 06-CR-000714

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER OF CORRECTION

The Memorandum Opinion of the Court, rendered October 23,

2008, is CORRECTED on its face by the substitution of page l . Said

correction does not affect the holding.

ENTERED: October 27, 2008 .

F JUSTICE JOHN D. MINTON