Turner v. Commonwealth
2011 Ky. LEXIS 112
Ky.2011Background
- Appellant James B. Turner, Jr. was convicted in Boyle County of incest and first-degree sexual abuse and sentenced to 22 years (17 for incest, 5 for sexual abuse, consecutive).
- The victim, S.F., was the stepdaughter; Turner began abusing when she was between age 15 and 18, with acts occurring in various locations including the camper-home, backyard, and Garrard County trips.
- Turner challenged venue, sufficiency of incest evidence, and potential double jeopardy.
- The evidence showed some sexual contact occurred during 2005–2008; location of the offenses was not an element of the offenses.
- The Supreme Court of Kentucky held the sexual-abuse conviction erroneous due to a statute-enactment timing issue, affirmed the incest conviction, and remanded for judgment and sentencing consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue properly challenged? | Turner argues Boyle County wasn't proven; Garrard County evidence suggests proper venue. | Commonwealth did not prove proper venue and Turner failed to timely move for transfer. | Venue not required to be proven as an element; waived by failure to move transfer. |
| Sufficiency of incest evidence? | Venue insufficiency undermines incest evidence. | Venue error does not affect incest element sufficiency. | Incest conviction affirmed; venue issue does not render insufficiency. |
| Double jeopardy related to first-degree sexual abuse conviction? | Concedes potential double jeopardy concerns due to overlapping elements. | Instruction error rendered conviction problematic due to timing of statute changes. | First-degree sexual abuse conviction reversed due to misinstruction and timing; no double jeopardy finding; remand for appropriate action. |
Key Cases Cited
- Derry v. Commonwealth, 274 S.W.3d 439 (Ky. 2008) (venue not an element; waiver if no transfer motion)
- Blockburger v. United States, 284 U.S. 299 (1932) (whether offenses contain elements not present in the other)
- Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996) (Blockburger test applied under Kentucky law)