*1 Fayette Circuit Court and the of Ap- decision
peals are affirmed. VANCE, J.,
All concur except sitting. HAMILTON, Appellant,
Vondle Lee Kentucky,
COMMONWEALTHof
Appellee.
Supreme Court of Kentucky.
Aug.
Rehearing Denied Nov. Advocate, Farley, Timothy
Jаck E. Public Advocate, Riddell, T. Frank- Asst. Public fort, for appellant. Gen., Beshear, Atty. L. W. Bruce
Steven Gen., Cowden, Jr., Atty. Frankfort, Asst. for appellee.
202
GANT, daughter. Appellant Justice. old that to contends to permit imрose the both sentences jury wife, Pauline, Appellant and his were of this act constitutes violation single jointly tried for the crimes of guarantee his constitutional incest, emanating from a sexual intercourse jeopardy. We by appellant upon ten-year-old their daugh- rule ter. The standard for determination of Appellant was found guilty sen- sufficiently whether two offenses are dis tenced to for the permit imposition the of tinguishable to incest, and ten to sentences be was in punishment cumulative stated Block concurrently. served Three errors as- 299, 304, v. 284 burger United serted on appeal. this 182, 180, 306, (1932): 52 76 309 S.Ct. Appellant first contends the in rule is that where the applicable wife, troduction of evidence the by during a act transaction constitutes vio- or trial, joint sought which she to provisions, distinct statutory lation prоve that she was battered spouse and test to determine the to frightened thus so of her husband that she only there are two offenses or whether demands, to acceded his constituted evi one, is whether each offenses, dence of thereby other nonrelated the proof of a fact which appellant a trial. denying argu fair This ment is without merit. was mo However, is not ap- the test separate herein, tion pursu trials filed abstract, plied merely in the that we look so 9.16; ant to RCr nor was there any contem standing at the statute alone. test poraneous objection to made the evidеnce When we applied subjectively. must be adduced, preserving as it was any thus not case, .present the we find that the view alleged errors for our consideration. Huff to utilized convict Commonweаlth, v. Ky., 560 544 S.W.2d intercourse rape was that he had sexual (1977). Appellant participated in cross-ex child, was, ten-year-old in actu- with abuse, concerning amination this alleged ality, daughter. only his concеrning and even testified himself at father/daughter— fact—the incident, effectively waiving least one thus Thus, in charge. in the incest was any objection Oney to evidence. v. sense, present fact was not 590, Commonwealth, 9 225 723 Ky. S.W.2d case, by Blockburger, as required “each” (1928). but in one case. Appellant argues prejudicial next of Harris analogy is case Of nearest clerk, calling error because the the dоck 2912, Oklahoma, 97 53 v. S.Ct. et day for the and before was even jury Harris (1977). 1054 In empaneled, appel called or read aloud that and convicted of had been tried charged “rape persistent lant was with state then grocery clerk. The record contains no felony offender.” The robbery him the armed sought try and, evidence that this occurred even as course, robbery, of the store. Armed occur, suming evidentiary it did there is no not an included of- separate that it was record heard noted fense, just as incest is a charge, to a murder on jury any or that there was influence of- separatе and not resulting argu therefrom. This verdict Breeding See charge to the fense ment, us, is upon based the record before Commonwealth, 229 S.W. Ky. v. 191 also without merit. Commonwealth, (1921), and Burdue 372 In 296 hold- is 144 138 S.W. brought Ky. The third error beforе us was barred ing prosecution the second apparently impression. Appel one of first Clause, the court Jeopardy instance for both Double lant was convicted lesser of- ingredients оf the from a act held that the resulting necessary prove greater 10-year- his were with then fense sexual intercourse
203 offense, thus constituting two reasoning ignores language trials This same incident. The quoted majori- In re Blockburger, supra, upon which the Nielsen, say 33 L.Ed. The rule does not ty purports rely. (1889), as follows: conviction of two instead, but the rule prohibited, same act is person has been tried and cоn- [A] [who] designed determine when conviction
victed for a crime which has various inci- *3 the same act prohibited. it, dents ... cannot abe prohibited Conviction of two offenses is not second time tried for one of those inci- where of a рrovision requires proof “each dents without being twice put jeopardy fact which the other does not.” The “facts” for the same offense. referred to are the elements of the statuto- рart That of the judgment finding the ry provisions. appellant herein guilty of the rape provision In this case it is clear that “each and sentencing him to requires proof of a fact which the other therеfor is affirmed. That part of the Rape, does not.” as defined in 510.040 judgment finding the appellant guilty of proof and as to this applied requires reversed, incest is and this case is remanded intercourse, (1) (2) with sexual one who is to the lower court with directions to set Incest, less than twelve old. aside the incest conviction. 530.020, requires proof defined in (1) intercourse, (2) with certain All except concur AKER and WINTER- (in fаmily members of one’s this case the SHEIMER, JJ., who dissent and file here- appellant’s daughter). rape While both with separate dissenting opinions. incest require proof each of sexual inter- AKER, Justice, dissenting. course, each of an requires proof I must dissent from portion of the rape fact which the other does not. The majority opinion which reverses the proof herein that the requires partner lant’s conviction for incest. The majority twelve; under requires proof contends that conviction for both rape and family relationship. incest violates the constitutional prohibition The reliance on Harris v. Okla- majority’s against double I jeopardy. respectfully dis- homa, 433 97 S.Ct. unpersuasive. is likewise Un- As the majority correctly out, points der the statute involved in felony murder standard for determining this issue was ease, re- felony conviction of murder stated in Blockburger 284 quired proof underlying felony. of the Ob- 52 S.Ct. L.Ed. 306. then, viously underlying felony was a The applicable rule is that where the felony “lesser-included offense” of same act or transaction constitutes a vio- mur- felony the sense that conviction lation of two distinct statutory provisions, der element of the required proof every the test felony determine did not felony. Conviction whether there are two require proof offenses of a fact not one, is whether each murder.
proof of a fact which the other does opinion I am of the that conviction for of this rape both and incest under the facts Where the majority opinion goes astray prohi- case do not violate the constitutional in its insistence that policy rule is somеhow bition double The something more than a rule of statutory rape behind each statute is distinct. The It construction. is not. The those who majority opin- punish statute seeks to deter and ion appears suggest incap- would have intercourse with children both offenses because both able incest statute seeks consent. act, crimes were committed punish deter and those would have and thus would close members of their substantially involve intercourse with same “proof” at trial. committed both family. That the
crimes same act is of clause Federal jeopardy constitution- double significance. Constitution, al unless each fact that does not. other I would affirm the of the lower Ohio, Brown 97 S.Ct. in all respects. Here the offenses of L.Ed.2d 187 clearly separate incest are and one Justice, WINTERSHEIMER, dissеnting. the other. lesser-included offense of dissent from respectfully part Each requires proof of a fact that majority opinion which reverses the not. The convic- appellant’s conviction for incest because tion of not violate the for both and incest does not constitute double jeopardy prohibition. laws have jeopardy. Two been vio- opinion significant departure from ex- is a lated the appellant. Two penalties isting case law. prejudice should be No imposed. results ignores legisla- majority opinion *4 because he is to serve both sentencеs con- 505.020, tive which states A mandate currently. life sentence means course criminal con- he will be where a eligible parole for in less than duct more eight establishes commission of years. prose- than one bemay accused The legislature has two differ- exceptions cuted for each offense. The ent crimes. there Consequently, logi- is no (b) (c) set out and do 505.020(l)(a), in KRS cal reason why рrejudiced by he is imposing authority not apply here. citations two penalties. and interpretation Child abuse by means illegal persuasive. conduct of incest not a lesser-included The criminal сonduct of the rape. There are le- compounded the convictions. He cannot laws which have violat- been protection of constitu- gitimately claim ed. The majority decision limits severely tional is no mani- prosecutors charging those who abuse injustice infirmity constitutional fest female a new children. It creates technical rape. for both incest conviction defensе and unneeded gives advantage in all re- would affirm to those who law. The break the trial court spects. not err did not violate lant’s guarantee against constitutional dou-
ble jeopardy right as well as his to be free
of multiple prosecutions by permitting incest as well as
The crime of incest denounced 510.040 requires proof of a different fact ASSOCIATION, BAR KENTUCKY rape, than does the offense of Complainant, from A different incest. showing proscribed degree sexual contact within a GREGORY, Respondent. Ernest R. relationship, require- blood and there is no of Kentucky. Supreme compulsion ment that forcible be shown. hand, the other On blood Oct. 1983. irrelevant conviction but forcible Motion Complainant’s comрulsion is element. Incest Denied Nov. Opinion Modified degree not a of the crime of Motion Respondent’s degree the crime of incest. Denied Nov. Reconsideration misinterprets majority totally case of
(1932). Two offenses are the same under