RENDERED: JUNE 13, 2019

NOT TO BE PUBLIS HED

2017-SC-000401-MR

ALFIE COMPTON APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT

V. HONORABLE GREGORY M. BARTLETT, JUDGE

NO. 16-CR-00498

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, REVERSING AND VACATING IN PART,

AND REMANDING

A Kenton Circuit Court jury convicted Appellant, Alfie Compton, of five

counts: count one, incest (victim under 12 years of age); count two, firstdegree sodomy (victim under 12 years of age); count three, first-degree sexual

abuse (victim under 12 years of age); count four, first-degree sodomy; and

count five, first-degree rape. The jury recommended Compton be sentenced to

imprisonment for twenty years for count one, twenty years for count two, five

years on count three, ten years on count four, and ten years for count five. The

jury recommended the sentences for counts one through four run

concurrently, for a total of twenty years, and the sentence for count five to run

consecutively to that sentence. In accordance with the jury ’ s recommendation,

the trial court sentenced Compton to a total of thirty years ’ imprisonment.

Compton now appeals as a matter of right. Ky. Const. § 1 10(2)(b).Compton asserts four claims of error on appeal. He claims that the trial

court erred by: (1) failing to provide a unanimous verdict in regard to counts

one and two, (2) failing to grant Compton ’ s motion to sever the counts of the

indictments, and (3) allowing certain expert testimony. As his fourth alleged

error, he argues that the combination of these errors, even if harmless when

considered alone, resulted in cumulative error. We hold that the trial court

violated Compton ’ s right to a unanimous verdict but did not err otherwise.

Therefore, we affirm Compton ’ s convictions and corresponding sentences for

count three, first-degree sexual abuse (victim under 12 years of age); count

four, first-degree sodomy; and count five, first-degree rape. However, we

reverse his convictions and vacate the corresponding sentences as to count

one, incest (victim under 12 years of age), and count two, first-degree sodomy

(victim under 12 years of age), as these two convictions violated his right to a

unanimous verdict under this Court ’ s precedent. Therefore, we affirm the trial

court in part, reverse and vacate in part, and remand this matter to the trial

court for further proceedings consistent with this opinion.

I. BACKGROUND

Compton was indicted on June 23, 2016, on five counts. The first four of

these counts (incest, two counts of sodomy, and sexual abuse) were for sexual

crimes Compton allegedly perpetrated against his minor daughter, Ariana. 1

Ariana testified that she was approximately six or seven years old when the

1 In keeping with this Court ’ s practice, throughout this opinion, the minor

victims ’ names will be changed to protect their anonymity.

2acts giving rise to these charges began. Ariana was under the age of twelve at

the time of the first three charged criminal acts and over twelve when her

father sodomized her the final time.

Count five of Compton ’ s indictment was for the alleged first-degree rape

of Bethany, a minor who was Compton ’ s distant relative. Bethany testified that

the rape occurred when she was in sixth grade.

Ariana testified that her mother would wake her and place her in the bed

with Compton before leaving for work in the mornings. Ariana said this is

where the sexual acts occurred. Ariana stated that initially Compton would

ask her to rub his chest, and then his stomach. Compton would continue to

tell her to go lower until she was touching his penis. This led to Compton

forcing his daughter to perform oral sex on him. Ariana also testified that

Compton would rub his penis on her vagina. Compton had told her that he

could not put his penis in her vagina in case her mother took her to be

examined. These acts became a daily routine.

Ariana testified she was scared to tell her mother. She stated several

reasons for this fear. The first, she said, was because Compton had taken her

to a lake in the park and told her he could tie a rope around her legs with

rocks on it and she would sink. Compton made the threat only once, but took

her to the park several times. Second, Ariana said that when she told Compton

she was going to tell her mother, he replied, “ I ’ ll fucking kill you. ” Compton ’ s

employment at the coroner ’ s office also scared Ariana, as she thought he knew

how to get rid of bodies.

3Ariana testified she was around thirteen or fourteen years old the last

time a sexual act occurred between her and Compton. This final act of abuse

happened at Compton ’ s residence following her parents ’ divorce. On this

occasion, Compton engaged in much the same activity as Ariana testified had

happened previously on a daily basis. Specifically, Compton asked Ariana to

rub his chest and stomach before asking her to move her hand down lower.

Compton rubbed his penis against her vagina, then forced Ariana to perform

oral sex on him. She stated that this time he orally manipulated her nipples,

then went to the bathroom to ejaculate. She testified that she told Compton

she knew these acts were wrong.

Ariana was around fourteen or fifteen years old when she told her mother

of the sexual abuse Compton had perpetrated against her for almost a decade.

Ariana stated that she had been at Compton ’ s house when she and Compton

got into a physical altercation. During the altercation, Ariana told Compton

that she was going to tell her mother he raped her if he did not get off her.

After the altercation, Ariana spent the weekend at her friend ’ s house. Ariana

informed her mother that Compton had raped her when her mother picked her

up from the friend ’ s house. Her mother contacted the police.

After Ariana reported Compton ’ s abuse to her mother and authorities,

Compton ’ s other victim, Bethany, also reported being previously raped by

Compton. Bethany stated that she met Compton when she dated his son. She

testified that she lived with Compton and his family for a period of time.

Eventually, Bethany found out that she was related to Compton. She testified

4that she was in the sixth grade when Compton subjected her to the initial

sexual act.

On the day of the charged act, Bethany was at Compton ’ s residence

along with Compton, Ariana, and Ariana ’ s brother (Bethany ’ s boyfriend).

Compton took Bethany upstairs to the bathroom, telling Ariana and Ariana ’ s

brother, who were sitting in the living room, that he was taking Bethany

upstairs to discuss her dad. Once in the bathroom, Compton took Bethany ’ s

jeans and underwear off, and then removed his pants. Bethany testified that

Compton put her legs up on his shoulders and had sexual intercourse with

her. She testified that Compton told her not to tell anyone and reminded her

that he worked at the coroner ’ s office. She said that she was afraid of

Compton.

Bethany testified that Compton had sexual intercourse with her multiple

times. She said that each time, she feared Compton due to his place of

employment and the fact that he owned firearms. Further, like Ariana,

Bethany stated Compton had shown her a lake in the park and she feared he

would get revenge if she told anyone he raped her.

II. ANALYSIS

A. Unanimous Verdict

Compton preserved this issue by objecting at trial. He argues that the

jury instructions pertaining to count one, incest (victim under 12 years of age)

and count two, first-degree sodomy (victim under 12 years of age) lacked

specificity, denying him of his right to a unanimous verdict pursuant to Section

57 of the Kentucky Constitution. The Commonwealth concedes that under

current case law, these instructions violate the requirement of a unanimous

verdict.

During a bench conference, Compton specifically objected to the trial

court giving

jury instructions five and six. Those instructions related to counts

one and two

— incest and sodomy

— both with Ariana when she was under 12

years of age. Compton complained the instructions failed to specify the

particular acts on which they were based out of the plethora of sexual abuse

allegations presented at trial.

Following Compton ’ s argument that the instructions violated his right to

a unanimous verdict, an Assistant Commonwealth ’ s Attorney first offered to

add detail to the instructions. However, in the same bench conference, the

Commonwealth responded to the requested changes, stating that the requested

level of detail was unnecessary. Compton ’ s counsel rebutted the

Commonwealth ’ s contention and cited relevant case law, Martin v.

Commonwealth, 456 S.W.3d 1 (Ky. 2015), arguing that “ under that instruction

we cannot ensure that the jury is reaching a unanimous verdict on the

particular incident that they are finding him guilty of. ”

After this argument, the judge asked the Commonwealth if the jury

instructions contained the date and place of the alleged crimes. Throughout

the bench conference, Compton ’ s counsel reiterated that the instructions on

appeal before this Court violated Compton ’ s right to a unanimous verdict.

Specifically, defense counsel argued:

6Defense: [the ju r y] still need[s] to agree that it happened on a particular occasion. If we do not add the specificity of a particular

occasion, then it violates [Compton ’ s] right to a unanimous verdict.

Trial court: a particular occasion, when you ’ re talking a span of

years, your question is if [the jury] is satisfied that it happened at

least once within this time frame.

Defense: Your honor, I would disagree that ’ s what they have to

decide. They must agree it happened on one particular occasion.

However, we can distinguish it

— it needs to be distinguished.

This Court has long held that “ Section 7 of the Kentucky Constitution

requires a unanimous verdict reached by a jury of twelve persons in all

criminal cases. ” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978); see

also Coomer v. Commonwealth, 238 S.W.2d 161 (1951); Cannon v.

Commonwealth, 163 S.W.2d 15 (1942).

The jury instruction pertaining to incest (victim under 12 years of age)

reads:

You will find the Defendant guilty of Incest under this Instruction

and under Count I of the Indictment 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 December 30, 2006

through December 30, 2012, and before the finding of the

Indictment herein, he engaged in deviate sexual intercourse

with [Ariana] on one occasion by placing his penis inside her

mouth at 114 Pike Street, Bromley, Kentucky;

B. That [Ariana] was his biological daughter;

AND

C. That he knew [Ariana] was his biological daughter;

AND

D. That at the time of such intercourse, [Ariana] was less

than 12 years of age.

7The jury instruction pertaining first-degree sodomy (victim under 12

years of age) reads:

You will find the Defendant guilty of First Degree Sodomy under

this Instruction and under Count II of the Indictment 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 December 30, 2006

through December 30, 2012, and before the finding of the

Indictment herein, he engaged in deviate sexual intercourse

with [Ariana] on one occasion by placing his penis inside her

mouth at 114 Pike Street, Bromley, Kentucky;

AND

B. That at the time of such intercourse, [Ariana] was less

than 12 years of age.

Compton argues, and we agree, that under this Court ’ s current

precedent the tendered jury instructions present a unanimous verdict issue.

Ariana testified that Compton consistently committed the acts giving rise to the

charges. Therefore, count one incest (victim under 12 years of age) and count

two first-degree sodomy (victim under 12 years of age) were based upon

multiple, separate acts of sexual abuse not distinguished from one another in

any way by the jury instructions.

This Court addressed this issue in Johnson v. Commonwealth, 405

S.W.3d 439 (Ky. 2013). See also Martin v. Commonwealth, 456 S.W.3d 1 (Ky.

2015). In Johnson, the jury was instructed on first-degree criminal abuse.

The instructions provided that the jury shall find Johnson guilty

on or about and between the dates of August 28, 2009 and

October 23, 2009 she intentionally abused the victim; caused

serious physical injury to the victim; the victim was at that time 12

years of age or less; and the abuse inflicted was other than the

8fatal injury to the victim ’ s abdomen that occurred on or about

October 23, 2009.

Id. at 448. Similar to the case at hand, the evidence presented in Johnson

showed proof of two injuries that could satisfy this instruction. The Johnson

court held “ that such a scenario

— a general jury verdict based on an

instruction including two or more separate instances of a criminal offense,

whether explicitly stated in the instruction or based on the proof

— violates the

requirement of a unanimous verdict. ” Id. at 449.

Here, Ariana ’ s testimony revealed that the sexual acts committed by

Compton occurred more than once. As mentioned above, the jury instructions

provided that the jury find Compton guilty if they believed he committed the

acts of incest and first-degree sodomy on any one occasion within a six-year

time frame.

After a review of Ariana ’ s testimony and the tendered jury instructions, it

is impossible to determine if all twelve jurors agreed upon the particular set of

criminal acts for which Compton was convicted. The jury instructions did not

require the jury to differentiate which of the instances was the basis of the

conviction, as required by Johnson. Id.

Further, Johnson held:

The unanimity requirement mandates that jurors end up in the

same place. When we give the kind of instruction in this case to

juries, they are forced by its language to appear to end up in the

same place in order to convict. But that appearance is illusory

because we can never know whether the jurors are indeed in the

same place. Such instructions make it possible that some of the

jurors may vote for the first crime, and some may vote for the

second, with all agreeing that the defendant committed a crime.

9(Emphasis added). Id. at 455.

As discussed above, it is impossible to determine from the proof, the jury

instructions, and the verdict forms on which particular criminal act the jury

based its conviction. For that reason, the error in this case requires reversal of

count one, incest (victim under 12 years of age), and count two, first-degree

sodomy (victim under 12 years of age) convictions. We also vacate the

sentences which correspond to these convictions.

B. Failure to Sever

Compton argues that the trial court abused its discretion by denying his

motion to sever the charges related to Ariana from that related to Bethany. He

contends that he suffered actual prejudice as a result of this error when the

trial court held a single trial based on charges for both minors. He argues that

this error violates his Fifth and Fourteenth Amendment rights under the

United States Constitution, as the joinder of the allegations denied his right to

a fair trial. Further, he states that the factual allegations in the motions that

argued for joinder were not sufficient to find that his acts amounted to

signature crimes, as they were not distinctive enough. We are not persuaded

by these arguments.

This Court held in Garrett v. Commonwealth.

The interaction of RCr 9.12 and RCr 6.18 allows the charges

brought in separate indictments to be joined for trial only when the

offenses are “ of the same or similar character ” or are “ based on the

same acts or transactions connected together or constituting parts

of a common scheme or plan. ” When the conditions set forth in

RCr 6.18 and RCr 9.12 are present, the trial judge has broad

discretion to allow the joinder of offenses charged in separate

10indictments. We review such decisions for abuse of discretion.

Nevertheless, to be reversible, an erroneous joinder of offenses

must be accompanied by “ a showing of prejudice ” to the defendant.

This showing of prejudice cannot be based on mere speculation,

but must be supported by the record.

534 S.W.3d 217, 223 (Ky. 2017). The Garrett Court further held “ a significant

factor in identifying prejudice from joining offenses for a single trial is the

extent to which evidence of one offense would be inadmissible in the trial of the

other offense. ” Id. citing Hammond v. Commonwealth, 366 S.W.3d 425, 428-29

(Ky. 2012). While Garrett dealt with the joinder of separate indictments, the

analysis is the same pertaining to severance of charges brought in the same

indictment, as was the case herein.

Also, Garrett cited this Court ’ s precedent stating:

Offenses closely related in character, circumstance [,] and time

need not be severed. If evidence from one of the offenses joined in

the indictment would be admissible in a separate trial of the other

offenses, the joinder of offenses generally will not be prejudicial.

Additionally, considerations of judicial economy and the efficiency

of avoiding multiple trials are reasons for joint trials.

Garrett, 534 S.W.3d at 223; citing Cohron v. Commonwealth, 306 S.W.3d 489,

493-94 (Ky. 2010); see also Peacher v. Commonwealth, 391 S.W.3d 821, 836

(Ky. 2013).

We will examine the relevant Kentucky Rules of Criminal Procedure. RCr

6.18 reads:

Two (2) or more offenses may be charged in the same complaint or

two (2) or more offenses whether felonies or misdemeanors, or

both, may be charged in the same indictment or information in a

separate count for each offense, if the offenses are of the same or

similar character or are based on the same acts or transactions

11connected together or constituting parts of a common scheme or

plan.

Regarding separate trials, RCr 8.31 reads:

If it appears that a defendant or the Commonwealth is or will be

prejudiced by a joinder of offenses or of defendants in an

indictment, information, complaint or uniform citation or by

joinder for trial, the court shall order separate trials of counts,

grant separate trials of defendants or provide whatever other relief

justice requires. A motion for such relief must be made before the

jury is sworn or, if there is no jury, before any evidence is received.

No reference to the motion shall be made during the trial. In ruling

on a motion by a defendant for severance the court may order the

attorney for the Commonwealth to deliver to the court for

inspection in camera any statements or confessions made by the

defendants that the Commonwealth intends to introduce in

evidence at the trial.

RCr 9.12 reads:

The court may order two (2) or more indictments, informations,

complaints or uniform citations to be tried together if the offenses,

and the defendants, if more than one (1), could have been joined in

a single indictment, information, complaint or uniform citation.

The procedure shall be the same as if the prosecution were under a single indictment, information, complaint or uniform citation.

This Court held in Peacher v. Commonwealth:

Because a certain degree of prejudice is inherent in the joinder of

offenses, as it is in any indictment, this Court has explained that

the “ prejudice ” calling for severance or other relief under RCr 9.16

is “ undue prejudice, ” i.e., prejudice that goes beyond the inherent

prejudice to that which is unnecessary and unreasonable. Romans

v. Commonwealth, 547 S.W.2d 128 (Ky. 1977). Although our rule

mandates relief when such undue prejudice appears likely, we

have entrusted application of the rule to the trial court's discretion,

Debruler, 231 S.W.3d at 752 and we have many times noted that

an erroneous severance ruling does not justify appellate relief

unless it resulted in actual prejudice to the party opposing the

ruling. Cohron v. Commonwealth, 306 S.W.3d 489 (Ky.2010)

(citing Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994)).

391 S.W.3d at 838.

12Compton filed a motion for separate trials. He moved the court to sever

counts one through four (related to Ariana) from count five (related to Bethany)

In the Commonwealth ’ s response, it argued that pursuant to RCr 6.18 the

offenses were of the same or similar character. Further, the Commonwealth

contends that the conduct of each count would be admissible in separate trials

under Kentucky Rules of Evidence 404(b) as modus operandi and because the

evidence was inextricably intertwined.

KRE 404 states:

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. It may, however,

be admissible:

(1) If offered for some other purpose, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to

the case that separation of the two (2) could not be accomplished

without serious adverse effect on the offering party.

Herein, the counts all occurred at Compton ’ s residence. 2 Furthermore,

Ariana was present in the residence during the charged count of rape. The

Commonwealth asserts that the trial court did not err in failing to sever the

charges due to several factors. Specifically: both Ariana and Bethany testified

Compton threatened to kill them after the assaults occurred, both victims were

afraid to disclose the assaults because of Compton ’ s employment at the

2 It is notable that count four first-degree sodomy occurred at a different

location, however, the location was Compton ’ s residence after he and his wife

divorced.

13coroner ’ s office and his knowledge of how to dispose of a body, Compton had

taken both victims to a lake in the park to reinforce both victims ’ fear that

Compton would kill them if they reported the crimes, both assaults involved

holding the victim down and using force, the assaults occurred against both

victims until their mid-teenage years, Compton communicated with both

victims through text messaging, Compton was physically violent during the

assaults, Compton ’ s method of gaining access to the victims was when they

were at his residence and he could isolate each child into a room by herself,

both victims were related to Compton, the indictments had common witnesses,

and Bethany reported only after (and on the same day) Ariana reported to the

police.

Compton emphasizes the differences between the alleged crimes. He

argues that the victims alleged completely different types of sexual crimes, that

Compton threatened Ariana explicitly two times, Ariana ’ s testimony did not

appear to involve Compton holding her down, and that communicating through

text messaging was hardly useful to any analysis of joinder. He argues that

there is not a signature crime that would allow the admission of evidence due

to modus operandi.

As we noted in Garrett, “ offenses closely related in character,

circumstance, and time need not be severed. If evidence from one of the

offenses joined in the indictment would be admissible in a separate trial of the

other offenses, the joinder of offenses generally will not be prejudicial. ” 534

S.W.3d at 223. The Commonwealth states that the abuse Compton inflicted on

14Ariana and Bethany was similar in that the abuse was of a sexual nature, it

occurred during an overlapping time period, all the charges arose from sexual

abuse perpetrated at Compton ’ s residence, and Ariana was present in the

home during one of the acts of abuse inflicted on Bethany. We further

emphasize the fact that both girls were scared of Compton due to his place of

employment and threats he appears to have made to both regarding disposing

of their bodies in a lake.

Therefore, consistent with the holding in Garrett, the offenses were

closely related in character, circumstance, and time. The trial court did not

abuse its discretion by denying Compton ’ s motion for separate trials.

C. Expert Testimony

Compton argues that the trial court erred by allowing Dr. Jackie

Anderson, the doctor who performed a physical examination on Ariana, to

testify regarding the results of Ariana ’ s examination.

On appeal, “ [w]e will not disturb a trial court ’ s decision to admit evidence

absent an abuse of discretion. ” Matthews v. Commonwealth, 163 S.W.3d 11,

i

19 (Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996).

“ The test for abuse of discretion is whether the trial judge ’ s decision was

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

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

15Compton contends that the testimony provided by Dr. Anderson is

irrelevant under KRE 40 1 3 and 402. 4 Dr. Anderson conducted an examination

on Ariana about a year and a half after the last act of sexual abuse occurred.

Her testimony revealed that Ariana had a normal physical examination and a

normal hymen. Further, Dr. Anderson testified that she did not expect to find

an injury during the examination.

Compton supports his argument by stating that Ariana did not testify

that Compton penetrated her, and the exam was a long time removed from the

last sexual encounter. Compton indicates that “ [t]he Commonwealth wished to

present a doctor to say that there was no injury and she did not expect there to

be one. ” He maintains that the Commonwealth utilized Dr. Anderson ’ s

testimony to “ paint Ariana ’ s claims in the tone of scientific significance even

while offering no relevant evidence. ”

Here, the evidence may have lacked relevance. However, it is notable

that there is a certain relevance for the jurors to be informed of the

thoroughness of the investigation conducted. However, it was the only

evidence of Ariana ’ s physical examination presented at trial

— and the results

were normal. There was no testimony that Compton ever penetrated Ariana, so

3 KRE 401 reads: “ 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 them it would be without the evidence.

4 KRE 402 reads: All relevant evidence is admissible, except as otherwise

provided by the Constitutions of the United States and the Commonwealth of

Kentucky, by Acts of the General Assembly of the Commonwealth of Kentucky, by

these rules, or by other rules adopted by the Supreme Court of Kentucky. Evidence

which is not relevant is not admissible.

16a normal examination and findings of an intact hymen appear to lack relevance

apart from showing the jury the steps undertaken in investigating the crime.

However, even if the admission of this evidence was in error, it certainly did not

harm Compton. Rather, it supported Compton ’ s statements that he did not

penetrate Ariana. Therefore, even if the admission of this expert evidence was

an abuse of discretion as it lacked relevance, any such error would be

harmless.

D. Cumulative Error

We disagree with Compton ’ s contention that the errors present in this

case amounted to cumulative error necessitating reversal. We have reversed

and remanded on the basis of Compton ’ s first alleged error as to two of the

charges for which he was convicted. The other potential error we found was

not only harmless, but may have even worked in Compton ’ s favor, as it aligned

with his claim that he had not penetrated Ariana. Therefore, Compton ’ s

assertion that we should reverse his case in its entirety due to the cumulative

nature of the errors herein is wholy without merit.

III. CONCLUSION

For the foregoing reasons, we affirm Compton ’ s convictions as to counts

three, four, and five for first-degree sexual abuse (victim under 12 years of age),

first-degree sodomy, and first-degree rape. We reverse Compton ’ s convictions

as to counts one and two for incest (victim under 12 years of age) and firstdegree sodomy (victim under 12 years of age), as the jury instructions violated

Compton ’ s right to a unanimous jury verdict. Therefore, we vacate Compton ’ s

17sentences associated with counts one and two and remand this matter to the

trial court for further proceedings in conformity with this opinion.

Minton, C.J.; Hughes and VanMeter, JJ., concur. Buckingham, J.,

concurs in result only without separate opinion. Keller, J., concurs in part and

dissents in part by separate opinion in which Lambert and Wright, JJ., join.

KELLER, J., CONCURRING IN PART AND DISSENTING IN PART: I

concur with the majority ’ s holdings regarding severance of the charges and

expert testimony, but I dissent from the majority ’ s analysis of the alleged

unanimity error. As the majority notes, this Court has repeatedly held “ general

jury verdicts ” to be reversible under similar circumstances. While the Court is

bound to such precedent, I believe that precedent stems from an inaccurate

reading of our constitutional and statutory requirements for unanimous

verdicts.

Prior to this Court ’ s decision in Johnson v. Commonwealth, 405 S.W.3d

439 (Ky. 2013), alternative-theory instructions satisfied our unanimity

requirement so long as those theories were supported by the evidence. 5 See

Davis v. Commonwealth, 967 S.W.2d 574 (Ky. 1998); Harris v. Commonwealth,

793 S.W.2d 802 (Ky. 1990), overruled on other grounds by St Clair v.

Commonwealth, 451 S.W.3d 597 (Ky. 2014); Wells v. Commonwealth, 561

S.W.2d 85 (Ky. 1978). When the evidence failed to support one or more of those

5 The history of our unanimity decisions is explained in detail in several separate

opinions written by the minority of this Court. See King v. Commonwealth, 554 S.W.3d

343, 365-77 (Ky. 2018) (Keller, J., concurring in part and dissenting in part).

18theories, a unanimity issue arose. See Commonwealth v. Whitmore, 92 S.W.3d

76 (Ky. 2002); Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000) overruled

on other grounds by Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010);

Hayes v. Commonwealth, 625 S.W.2d 583 (Ky. 1981); Boulder v.

Commonwealth, 619 S.W.2d 615 (Ky. 1980), overruled on other grounds by Dale

v. Commonwealth, 715 S.W.2d 227 (Ky. 1986).

Under this line of cases, the jury instructions in Compton ’ s trial would

not present a unanimity issue. Among Compton ’ s charges were one count of

incest (victim under 12 years of age) and one count of first-degree sodomy

(victim under 12 years of age), both for abuse of his daughter when she was

younger than twelve. The instructions identified a specific timeframe,

December 2006 through December 2012, and required that the jurors find that

the specified criminal conduct occurred on at least one occasion within that

time period. The daughter testified to multiple instances occurring within that

timeframe that could have satisfied the individual charges. Thus, the

alternative theories or means by which Compton committed those crimes was

supported by the evidence. Under the case law cited above, there would be no

violation of our unanimous verdict requirement.

In Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008), however, the

Court began to refine its view of our unanimity requirement. In that case, the

jury instructions provided for one count of sodomy first-degree, one count of

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

sexual abuse instructions were identical and factually indistinguishable, with

19each providing the same time period (December 2003 to February 2006). Harp

argued that the instructions should have been factually distinguishable, and

the Court agreed, explaining

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.

Id.

Thus, under Harp, factually indistinguishable jury instructions in

multiple count cases violate our unanimous verdict requirement and constitute

reversible error. However, the Court continued to hold that multiple-theory

instructions were adequate so long as each theory was supported by the

evidence. See Jones v. Commonwealth, 331 S.W.3d 249 (Ky. 2011); Beaumont

v. Commonwealth, 295 S.W.3d 60 (Ky. 2009). The Court followed this

approach until Johnson, when the Court shifted dramatically from this

established view. In that case, the Court addressed a single instruction for one

count of a crime when evidence was presented of multiple instances that could

individually satisfy the instruction. The defendant had been charged with one

count of first-degree criminal abuse. 405 S.W.3d at 448. The instruction on

that charge provided a two-month timeline for the commission of the crime,

and the evidence indicated two incidents within that time period that could

qualify as first-degree criminal abuse. Id. The Court held “ that such a

20scenario

— a general jury verdict based on an instruction including two or more

separate instances of a criminal offense, whether explicitly stated in the

instruction or based on the proof

— violates the requirement of a unanimous

verdict. ” Id. at 449. I believe that this holding, which strayed significantly

from our prior precedent, violated the principles of our unanimity requirement.

The Johnson decision not only contradicts a well-established line of

cases, but it clashes with the sound reasoning of other jurisdictions, as well.

In those jurisdictions, unanimity is satisfied so long as all jurors agree that

each element of the crime was proven beyond a reasonable doubt; they need

not agree on the manner in which the crime was committed. 6 In other words,

these jurisdictions draw a distinction between evidence of multiple crimes and

evidence of alternative means of committing a crime. Simply put, all jurors

must agree that the defendant committed the crime, but they do not need to

unanimously agree on a particular set of facts.

Under the current law in Kentucky, however, we require our jurors to

unanimously agree on the facts. Justice Cunningham ’ s dissent in Johnson

highlights the absurdity of this rule. He explained, “ We are requiring juries to

6 See State v. Gardner, 889 N.E.2d 995, 1005 (Ohio 2008) ( “ Unanimity is not

required

... as to the means by which the crime was committed so long as substantial

evidence supports each alternative means. ” ); State v. Gustafson, 350 N.W.2d 653, 663

(Wis. 1984) (concluding “ that these acts of sexual contact were simply alternative means

of committing the actus reus element, i.e. the wrongful act of sexual contact, involved in

the crime of second-degree sexual assault ” ); State v. Ayala-Leyva, 848 N.W.2d 546, 553-

54 (Minn. Ct. App. 2014) ( “ A jury must unanimously agree that the state has proved

each element of an offense. But the jury is not ‘ always required to agree on alternative

ways in which a crime can be committed. ” ); State v. Godoy, 284 P.3d 410, 413 (N.M. Ct.

App. 2012) ( “ [J]ury unanimity is required only as to the verdict, not to any particular

theory of guilt. ” ).

21be unanimous on matters that the unanimous verdict requirement never

anticipated. ” Id. at 461. In fact, prior to Johnson, nothing in our case law

— or

the Kentucky Constitution

— required unanimity on the facts to achieve due

process. Rather, our constitution requires only unanimity of the verdict. I

would therefore encourage the Court to overrule Johnson.

If the Court declines to overrule this line of cases, it should at least look

to other jurisdictions ’ analysis of this same issue. In most of those

jurisdictions, prosecutors can either choose which particular incident the jury

will consider or give a generalized unanimity instruction. In addition, many

jurisdictions reject a bright line rule that a unanimity error requires reversal;

instead, those jurisdictions consider whether the error prejudiced the

defendant ’ s right to a fair trial under the circumstances of that particular case.

Adoption of a similar approach in the Commonwealth could prove helpful to

the bench and bar.

For the foregoing reasons, I would affirm the convictions for incest (victim

under 12 years of age) and first-degree sodomy (victim under 12 years of age).

Lambert and Wright, JJ., join.

22COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

William Robert Long Jr.

Assistant Attorney General

23