King v. Commonwealth
554 S.W.3d 343
Mo. Ct. App.2018Background
- Victim A.S., born 2005, lived with grandmother Hope King and Ronald King; alleged sexual abuse occurred at two residences ("brown trailer" on Sioux Trail and house on Garvey Avenue) when she was under 12.
- A.S. had two Child Advocacy Center (CAC) interviews (2014 after a trailer fire; 2015 after disclosure). She initially denied abuse in 2014 but disclosed abuse in 2015.
- Indictment charged two counts of first-degree sodomy and two counts of first-degree sexual abuse (one sexual-abuse count per residence); one sodomy count was dismissed at close of the Commonwealth’s case.
- Jury convicted King of one count of first-degree sodomy and both counts of first-degree sexual abuse; recommended life for sodomy and ten years each for the sexual-abuse counts (total sentence: life). King appealed.
- The Commonwealth conceded the jury instructions on the sexual-abuse counts allowed conviction based on multiple acts per count (duplicitous), raising a unanimity problem; other challenges concerned double jeopardy, impeachment/admission of CAC interviews, admissibility of a recorded phone call as an adoptive admission, and sentencing interplay between life and term-of-years sentences.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (King) | Held |
|---|---|---|---|
| 1) Duplicitous jury instructions / unanimity on sexual-abuse counts | Instructions tied each sexual-abuse count to a location and were adequate; evidence supported convictions | Instructions each encompassed multiple distinct acts so jurors might not have unanimously agreed on the same act — violating unanimous verdict requirement | Reversed sexual-abuse convictions and remanded; instructions were duplicitous and violated unanimity (palpable error) |
| 2) Double jeopardy between sodomy and sexual abuse | Charges represent distinct acts; no double jeopardy | Sexual abuse is lesser included of sodomy and overlapping instructions risk double jeopardy | No double jeopardy; sodomy and sexual-abuse acts here were separate and convictions for both may stand when based on separate acts; sodomy conviction affirmed |
| 3) Impeachment and admission of 2014/2015 CAC interviews (including Confrontation Clause) | Prior statements admissible to impeach/rebut; 2015 interview admissible as prior consistent after credibility attacked; A.S. testified so confrontation satisfied | Playing 2015 interview bolstered A.S., was hearsay, and interviewer was not available for cross — violated confrontation | Trial court did not abuse discretion: defense had attacked consistency so 2015 interview admissible under KRE 801A(a)(2); A.S. testified and was cross-examined so Confrontation Clause not violated; impeachment procedures and admission affirmed |
| 4) Admission of recorded jail phone call as adoptive admission (double hearsay) | Hope’s statements and King’s silence/admissions on call were admissible as adoptive admission | Admission improperly let in hearsay and double hearsay (Hope repeating A.S.); King’s silence ambiguous; Confrontation and hearsay rules violated | Admission of the phone call as adoptive admission was erroneous because it produced inadmissible double hearsay, but error was harmless given other admissible evidence; no reversal on that ground |
| 5) Sentencing: term-of-years run consecutively with life sentence | Concurrent/consecutive discretionary within sentencing scheme | KRS prohibits running a term of years consecutively with a life sentence for same action | Remanded to address sentencing error (vacated sexual-abuse convictions also render related sentencing sequencing moot); court directs correction on remand |
Key Cases Cited
- Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (held that an instruction authorizing conviction based on multiple distinct acts violates unanimity)
- Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013) (discussed duplicity and unanimity concerns with instructions charging multiple acts)
- Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016) (reversed conviction where a duplicitous instruction undermined unanimity)
- Martin v. Commonwealth, 456 S.W.3d 1 (Ky. 2015) (held unanimous-verdict violations constitute palpable error)
- Miller v. Commonwealth, 77 S.W.3d 566 (Ky. 2002) (discussed need to differentiate multiple charged offenses so jury and appellate review can identify each offense)
- Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008) (reversed where multiple identical instructions lacked identifying characteristics, violating unanimity)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause governs testimonial out-of-court statements and requires prior opportunity for cross-examination)
- Tackett v. Commonwealth, 445 S.W.3d 20 (Ky. 2014) (explained limits on admitting prior consistent statements and improper vouching)
- Moss v. Commonwealth, 531 S.W.3d 479 (Ky. 2017) (discussed adoptive admissions via silence and cautioned careful analysis)