Kennedy v. State
385 S.W.3d 729
Ky. Ct. App.2012Background
- Appellant Joseph Kennedy was convicted by a jury of one count of continuous sexual abuse of a child and two counts of indecency with a child by contact after a not guilty plea.
- Sentence: 35 years for continuous abuse and 2 years on each indecency count, to be served consecutively.
- Appellant challenged § 21.02's lack of jury unanimity on specific acts of abuse as unconstitutional under federal and Texas constitutions.
- Statute § 21.02 requires two or more acts within a 30+ day period, with the acts constituting the actus reus; jurors need not unanimously agree on specific acts.
- Austin Court of Appeals previously held § 21.02 does not violate unanimous jury verdict or due process in Jacobsen and Martin; this case follows that precedent.
- Appellant relied on Richardson for arguments about lack of conduct-specific element; the court distinguishes actus reus from acts as evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 21.02 violate the right to a unanimous jury verdict? | Kennedy argues lack of unanimity on specific acts violates unanimity guarantees. | Kennedy contends the statute permits conviction without agreeing on specific acts, risking proof beyond reasonable doubt. | Section 21.02 does not violate unanimity. |
Key Cases Cited
- Jacobsen v. State, 325 S.W.3d 733 (Tex.App.-Austin 2010) (unanimity on course of conduct; acts are evidentiary, not elements)
- Martin v. State, 335 S.W.3d 867 (Tex.App.-Austin 2011) (continues Jacobsen analysis on § 21.02 unanimity)
- Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App.2005) (unanimity requirement in Texas criminal trials)
- Young v. State, 341 S.W.3d 417 (Tex.Crim.App.2011) (juror unanimity in relation to specific elements)