Paul T. Elam Jr v. Commonwealth of Kentucky, 500 S.W.3d 818

Background

Paul T. Elam was indicted on multiple sexual offenses: 32 counts of first-degree sodomy (Brenda), 32 counts of first-degree sexual abuse (Brenda), and 1 count of first-degree sexual abuse (Mary); later two witness-tampering counts were added based on a letter he sent from jail.
The sexual offenses against Brenda were alleged to have occurred May 2011–Nov. 2, 2013; the single count involving Mary alleged conduct Oct. 31–Nov. 2, 2013.
The court consolidated the witness-tampering indictment with the sexual-offense indictment and denied Elam’s motion to sever Count 33 (the single count involving Mary) from the charges involving Brenda.
Before submission, 37 counts were dismissed; the jury convicted Elam on 15 sodomy counts (Brenda), 13 sexual-abuse counts (12 Brenda, 1 Mary), and 2 witness-tampering counts; total sentence = 70 years.
Elam appealed, arguing (1) improper consolidation/denied severance, (2) a duplicitous indictment with indistinguishable counts and jury instructions that violated his Sixth Amendment/Kentucky unanimity right (Johnson line).

Issues

Issue	Plaintiff's Argument (Elam)	Defendant's Argument (Commonwealth)	Held
Whether joinder/consolidation of witness-tampering indictment with sexual-offense indictment was improper	Tampering is not "of the same or similar character" and should not be tried with sexual offenses	Tampering arose from and is logically connected to the sexual charges (attempt to prevent testimony); consolidation proper under RCr rules	Consolidation proper: tampering and sexual offenses are part of the same scheme/transaction and evidence is mutually admissible (no abuse of discretion)
Whether trial court abused discretion in refusing to sever Count 33 (Mary) from counts involving Brenda	Joinder prejudicial because Count 33 is distinct; evidence of Mary’s allegation would be inadmissible in a trial solely about Brenda and would unfairly show multiple victims	Offense against Mary is of same/ similar character and logically connected; both arise from a common scheme/plan—severance unnecessary	Denial of severance not an abuse of discretion; counts are similarly charactered/connected and reciprocal admissibility under KRE 404(b) supports joinder
Whether jury instructions violated unanimity requirement by failing to differentiate identical-form counts (Johnson claim)	Indistinguishable counts + flawed instructions could allow jurors to convict without agreeing on same act	Instructions here identified distinct circumstances for each count; complied with Johnson and Ruiz unanimity guidance	Jury instructions adequate; unanimous-verdict right not violated
Whether indictment was duplicitous and defective for identically worded repeated counts	Identical wording across multiple counts renders indictment duplicitous and prejudicial	Defendant waived objection by not raising it pretrial and did not request a bill of particulars; RCr remedies available	Waiver: defendant failed to timely object or request particulars; no palpable error relief granted

Key Cases Cited

Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (unanimity requirement; jury must be able to identify the specific act on which guilt is based)
Ruiz v. Commonwealth, 471 S.W.3d 675 (Ky. 2015) (indistinguishable counts disfavored; but defendant must timely object; remedies include bill of particulars)
Peacher v. Commonwealth, 391 S.W.3d 821 (Ky. 2013) (liberal joinder policy; advantages of joint trials and requirement of a logical nexus for joinder)
Roark v. Commonwealth, 90 S.W.3d 24 (Ky. 2002) (test for undue prejudice on consolidation: whether evidence for each offense would be admissible in separate trials)
Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998) (evidence of attempts to suppress witness testimony demonstrates consciousness of guilt and is admissible)
Cherry v. Commonwealth, 458 S.W.3d 787 (Ky. 2015) (even when RCr 6.18 met, severance required if joinder is unfairly prejudicial)