348 S.W.3d 613
Ky.2011Background
- Appellant Perry Bennington was convicted by a Bullitt County jury of multiple sex offenses against his daughter, proceeding over more than fifteen years, beginning when she was six.
- T.R. testified to a pattern of oral sex and intercourse with Appellant nearly daily starting when she turned fourteen, including a pregnancy at fifteen and continued activity into early adulthood.
- Indictments charged five counts of first-degree sodomy, three counts of first-degree rape, and six counts of incest (one sodomy count later amended to first-degree sexual abuse).
- At sentencing, the court applied the penalty for indecent or immoral practices with a child (KRS 435.105) to a count originally charged as first-degree sodomy (KRS 510.070) because that crime did not exist in 1974, and imposed a 70-year aggregate sentence.
- The Kentucky Supreme Court majority remanded to amend the judgment to reflect the proper historical offense (indecent or immoral practices with a child under 15 in violation of KRS 435.105) while affirming the remaining convictions; Justice Cunningham partially dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Palpable error for pre- statute conviction | Bennington | Commonwealth | No palpable error; indictment adequate; remand for judgment amendment only. |
| Unanimous verdict sufficiency from identical instructions | Bennington | Commonwealth | Not reversible; distinct year-based identifications preserve unanimity. |
| Sufficiency of evidence for counts 4-5, 6-8, and incest | Bennington | Commonwealth | Sufficient evidence; count 6 reversed for insufficiency; others affirmed. |
| Discovery rulings on bill of particulars and medical records | Bennington | Commonwealth | Rulings within trial court discretion; discovery denied for lack of material showing. |
| Admission of hospital records without authentication | Bennington | Commonwealth | Denied; records not authenticated; proper ruling under KRE 901. |
Key Cases Cited
- Strong v. Commonwealth, 507 S.W.2d 691 (Ky.1974) (waiver of defective indictment allowed; no manifest injustice.)
- Malone v. Commonwealth, 30 S.W.3d 180 (Ky.2000) (jurisdiction for felonies may be waived via information; indictment rules.)
- Crouch v. Commonwealth, 323 S.W.3d 668 (Ky.2010) (indictment amendment cannot charge a different offense; information may be used with consent.)
- Miller v. Commonwealth, 283 S.W.3d 690 (Ky.2009) (presumed prejudice when identical jury instructions obscure which crime applied.)
- Edwards v. Commonwealth, 500 S.W.2d 396 (Ky.1973) (oral sexual contact violated indecent or immoral practices statute.)
- Lair v. Commonwealth, 330 S.W.2d 938 (Ky.1960) (distinction between indecent or immoral practices and carnal knowledge.)