Harp v. Commonwealth

to his individual close clients that their HARP, Appellant, Wilbert being

settlement amounts were deter- by a mined settlement devel- protocol oped and administered their own law- Kentucky,

yers, of Defendant. COMMONWEALTH Appellee. KBA strongly urges The this Court to sustain the motion In and disbar Movant. No. 2007-SC-000288-MR. light of the charges seriousness of the against guilt, Movant and his admission Supreme Kentucky. Court of grant Movant’s motion. Oct. 2008. Thus, it is ORDERED that: to be Ordered Published Oct.

1) Movant, Shirley Cunningham, A. Jr.’s membership motion withdraw his in the

Kentucky Bar Association under terms of

permanent disbarment Mov- granted. is thusly, may

ant never apply for reinstate- Bar rules;

ment under the current

2) Movant in accordance with SCR

3.890, notify shall all Courts in which he pending

has matters and all clients for he is actively litigation

whom involved matters, inability

and similar his con- representation;

tinue

3) Movant shall immediately cancel and any

cease advertising accor- activities 3.390; with

dance SCR

4) proceed- All current bar disciplinary

ings against hereby Movant are terminat-

ed;

5) 3.450, In accordance with Mov- SCR

ant directed pay all associated costs these disciplinary proceedings in the $24,970.07

amount execution finality issue from this Court

this Order. sitting.

All All concur.

ENTERED: October John D. Minton

/s/ Justice

Chief Defender, Public

sistant Office Jef- Defender, Louisville, District ferson Public KY, Counsel for Appellant. Conway, Attorney General Ken-

Jack Morrow, Bryan tucky, Darwin Office General, Frankfort, KY, Attorney Counsel Appellee. MEMORANDUM OPINION OF THE COURT INTRODUCTION. I. Harp a matter appeals Wilbert from his for indecent right1 convictions first-degree exposure, sodomy, seven first-degree abuse. counts sexual Be- cause the instructions on the seven identical, con- sexual abuse counts were taining identifying no characteristics that required among to differentiate counts, Harp’s we reverse sex- each affirm ual abuse convictions. We otherwise sodomy con- Harp’s exposure indecent or victions.

II. FACTUAL AND PROCEDURAL HISTORY.

Harp girlfriend moved with his four-year-old According B.B. daughter, her B.B., Harp sexually began molesting they all moved to a her sometime after different apartment several months later. B.B., in a According Harp engaged vari- ety of sexual acts her while her moth- eventually at work. B.B. disclosed er was mother, incidents to her but the moth- no action time er took at because nothing im- Harp assured mother occurring. was proper looking B.B. and her aunt were While an advertise- magazine contained kissing, B.B. told depicting couple ment Pub- aunt that done the same Goyette, Harp T. Metro had Daniel Louisville Defender, McMahon, reported thing B. As- to her. The aunt B.B.’s lic Elizabeth 110(2)(b). § Ky. Const. statements, eventually led to those convictions. We must also address being questioned by police. Harp remaining they ad- issues because are ei- inappropriate mitted contact with B.B. but pertinent sodomy ther or indecent blamed the curiosity convictions, contact on B.B.’s exposure or concern matters about sex. After being psy- admitted to a likely to arise remand of the sexual chiatric hospital, Harp wrote a letter to his charges. abuse psychologist describing sexual contact with A. Trial Court Committed Reversible but, B.B. again, blaming B.B. for the con- Failing Distinguishing Error to Add tact. Characteristics Each Sexual Abuse

Harp ultimately Charge. was indicted for one count of first-degree sodomy, seven counts Harp argues that it error first-degree abuse, sexual and one count language the trial court not to add each exposure. of indecent juryA convicted of the seven sexual abuse instructions so on charges all in- contained required that the would be to distin dictment. Harp twenty- was sentenced to guish from the evidence count one from years conviction; five for the sodomy two agree. another. We years’ imprisonment and one-half on each Each sexual abuse instruction was iden- conviction; sexual abuse ninety days and read, pertinent tical and in part, as follows: exposure conviction, the indecent all to defendant, You will find the Wilbert run concurrently. appeal This followed. Hiatt Harp, guilty under this Instruction you if from beyond believe the evidence III. ANALYSIS. doubt, a reasonable all of the following: Harp raises six issues. He contends (a) That in this county, between the 1st (1) that the trial court admitting erred day of December 2008 and the 1st (2) the letter he wrote to psychologist, his day February of the defendant admitting evidence of sexual contact with contact; subjected [B.B.] to sexual (3) B.B. charged indictment, in the AND (4) finding competent B.B. testify, to allow-

ing improper bolstering (b) of B.B.’s testimo- contact, That at the time of such (5) ny, failing to direct a verdict on the years age. was less than 12 [B.B.] of (6) exposure indecent charge, failing and to previously We have held that “when jury properly instruct the because the in- multiple charged offenses are single a multiple structions on counts of first-de- indictment, the Commonwealth must intro- gree sex require jury abuse failed to the to duce prove evidence sufficient to each of- separate make findings factual and a reach fense and to differentiate each count from unanimous verdict on each count. others, jury the and the separate- must be Because agree Harp we with that ly charged instructed on each offense.”2 jury regarding instructions the sexual clearly we have held—before charges erroneous, abuse were we shall trial —that a trial court errs in a case discuss that issue first. Since the flawed involving multiple charges if its instruc- sexual abuse instructions jury “factually caused no tions to the fail differ- [to] prejudice sodomy discernible in the separate and entiate between the offenses.”3 convictions, exposure indecent Very recently we affirm Harp’s trial —we sim- —after Combs, Commonwealth, 2. Miller v. 77 S.W.3d course, holding by again recognize, that ex- of that an

ilarly reinforced We jury erroneous instruction sometimes that is suffi- plaining “[w]hen evidence unfortunate, yet ultimately be an harmless multiple support cient to counts of claiming error.5 But a that party an erro offense, jury same instructions must be instruction, or an jury neous erroneous testimony in tailored to the order to differ- jury instruction, necessary failure to give entiate each count from the others.”4 we steep bears burden because have held precedent, apparent Based on this it is jurisdiction it is a “[i]n this rule of by submitting trial erred court repetition longstanding frequent and seven sexual abuse identical instructions pre erroneous instructions are jury. again instruct the bench that an prejudicial; appellee sumed be bar of the Commonwealth that in a case claiming harmless error bears burden counts of involving multiple the same of- affirmatively that no showing prejudice fense, obliged a trial court is to include Regrettably, resulted error.”6 from the identifying some sort characteristic we have sometimes failed utilize the each that will require instruction presumption prejudice associated it is determine whether satisfied from erroneous at instructions least proving the existence of facts However, some of decisions.7 our recent separately charged each of the of- confusion any possible among to clear up fenses occurred. the bench and bar Having found that the instructions we now return adhere to the expressly erroneous, turn to issue were now presumption inherent in an prejudice that more difficult whether expressed in erroneous instruction Despite course, error be deemed harmless. McKinney. Of presumption that our seemingly earlier statements to the successfully showing can be rebutted hold that contrary, we now a failure error “did not affect verdict or proper identifying through include characteristics judgment.”8 But viewed error, lens, in jury proper procedural instructions is reversible the erroneous in objection provided timely that a structions in the case at hand cannot be made. deemed harmless. error has been Commonwealth, 738, ly, rigorous, approach to 4. 245 744 if not harmless Bell v. S.W.3d more Indeed, Rudd, (Ky.2008). Accord State v. S.W.2d jury 759 error in instructions. McKin 625, (“We (Mo.App.1988) agree ney’s jury 630 with proper approach to instruction er general proposition multiple that if offenses recognized rors has in criminal cases. been defendant, single against Commonwealth, a are submitted WL 2005 See Batts v. submitted different offenses should be distin- Dec.22, 2005); (Ky. Wilson v. 3500779 at *3 guished. As much is inherent in the well Commonwealth, (Ky. at WL 2624155 *3 2004 giving rule that the established of distinctive 18, 2004); Hager, v. 35 Nov. Commonwealth proper submitting is a method of instructions 377, (Ky.App.2000). S.W.3d 379 offenses.”). multiple See, e.g., 7. Thacker v. 194 1, See, States, e.g., Neder v. United U.S. 527 287, Wright (Ky.2006); S.W.3d v. Com- 291 1827, 15, (1999) S.Ct. 144 L.Ed.2d 35 monwealth, 239 S.W.3d (finding jury omission of element of offense in error); instruction harmless RCr 9.24. (2008). § 968 See Appeal 8. 5 C and Error J.S. Heisel, 230 S.W.3d also Emerson v. McKinney (Ky. (stating (Ky.2007) that an 1997). error recognize McKinney is a civil possibility reasonable heightened harmless if there is "no But we believe the stakes of case. verdict....”). equal a must lead to at an it affected the criminal case least precedent mentioned, Our longstanding As we have determined that leaves no doubt we have adhered to requires specific the law identifiers to be principle jury the “bare bones” instruct placed involving each count in a case Indeed, ions.9 former Chief Justice Pal- multiple counts same offense. So more apparently coined the “bare bones” failure to include least some basic evi- phrase case, in a although 1974 civil dentiary identification in the sexual abuse phrase similarly has been applied to crimi instructions at hand was a misstatement of nal explained cases.10 We have this bare Furthermore, the law. the lack of specific- bones approach meaning instructions as ity readily in the instructions lends itself to matter, general that as a “evidentiary mat potential unanimity problem.15 ters should be omitted from the instruc No doubt able counsel could—and in this lawyers tions and left to the to flesh out in case, attempt ge- to “flesh out” the did— closing arguments.”11 Or, as we more neric sexual in closing abuse instructions recently explained, jury instructions argument by telling specific should tell the what it must believe act of sexual abuse was covered which from the evidence in order to resolve each specific And, charges. count of the dispositive factual issue “provid while still dictum, appeared we have approve ing enough information to a to make attempted such corrective and curative ac- it aware of the respective legal duties of tion the Commonwealth. parties.”12 year, this in Bell v. Com Earlier We remain committed to the bare monwealth, we encountered a similar situ bones instructional principle, confident whereby gave ation a trial court multiple that it works well “pare most cases to jury instructions on sexual offenses with down unfamiliar and often complicated is any out including distinguishing sues in a jurors, manner that characteri who are often not familiar stics.16 And earlier in legal opinion, we had principles, can understand.”13 already But held that Bell’s instructions must not convictions must be so bare bones as misleading to be or be reversed to unduly due the trial court’s misstate the law.14 coercive during jury actions deliberá- See, Commonwealth, e.g., Bell, 9. ("The wording 965 15. S.W.3d at Baze 245 744 of 817, S.W.2d instructions, however, 823 the calls into unanimity the of the verdict. A criminal de 530, Cooper, 10. Cox v. 510 (Ky. S.W.2d course, fendant, of is entitled ato unanimous 1974) ("Our approach to instructions is that Ky. interpreted § verdict. Const. in bones, they provide only should the bare Ky. Cannon v. by can be fleshed out counsel in their (1942); 9.82(1). S.W.2d 15 RCr When the closing desire.”). arguments they if so support multiple evidence is sufficient to recognized originator Justice Palmore as the offense, jury counts of the the same instruc phraseology Olfice, “bare bones” in tions must be tailored to the Wilkey, Inc. v. order to differentiate each count from the others. While the Commonwealth differenti Baze, 965 S.W.2d at 823. during closing argu ated the offenses its ments, nothing there is in the written instruc Wilkey, 173 S.W.3d at 229. distinguish rape, tions to each count sexual sodomy.”). abuse and 13. Id. 14. Id. 16. Id. But to or impre-

tions.17 we exercised our discretion rehabilitate otherwise erroneous jury jury address the issue because cise instructions.”21 instruction likely it to occur held was on retrial.18 We coun- arguments Our conclusion that any distinguish- that the failure to include jury in- sel cannot rehabilitate erroneous characteristics in instructions was ing directly is in accordance with structions found have error but that the error would pro- States Court’s Supreme United harmless been because “arguments nouncement of counsel closing, iden- cannot substitute for instructions its [t]he right to have rape court” because defendant’s tified the five distinct incidents [of solely upon its jury base deliberations ulti- jury or sexual abuse]. Because hinge cannot to “permitted the evidence be mately of all five guilty found Bell hope will be a upon defense counsel abuse, counts of sexual it can be ration- prosecu- than the more effective advocate” juror ally fairly that each deduced Or, words, concept in other tion.22 Bell of the five dis- guilty believed per- out bare fleshing bones instructions tinct incidents identified the Com- explain attempt mits counsel monwealth.19 per- not jury instructions but does essence, In our and unfortu- imprecise mit counsel to to correct errone- attempt nate dictum in Bell be taken to stand can jury ous instructions. proposition for the able counsel “cure” a defective instruction clos- it is foregoing, Based on the But ing argument. very recently made we in the clear that the instructional error in a opinion it clear unanimous at hand was cured the Com case instructions, presumed Indeed, which a is closing argument. monwealth’s follow, solely must be the evi- based case previously have stated in a similar we dence; “an attorney’s arguments do we preserved, that if the issue had been Therefore, not constitute instructional evidence.”20 would have found a similar Likewise, ar- plain reached the that “the to necessitate reversal.23 conclusion error has failed guments of counsel are not sufficient we find that Commonwealth The of this maxim 17. Id. at 742-43. for decision. reason question actually before the obvious. The care, investigated and consid- Court is already 18. Because we had found that Bell’s principles which ered in its full extent. Other convictions must be reversed for other rea- it, may are considered in serve to illustrate sons, our instruction discussion decided, the but their relation to case their obviously issue was dictum. our state- possible bearing on cases is seldom all other ments on the issue are not instruction investigated.”). completely Indeed, binding precedent. perhaps the most jurist history, in Chief esteemed our nation’s Bell, 245 S.W.3d at 744. 19. Marshall, against later Justice John cautioned previous being bound a courts the dicta of S.W.3d at 263 20. Dixon Virginia, Cohens 19 U.S. court. See v. State of 264, 399-00, 257, 592-93 Wheat. 264 5 L.Ed. 6 (1821) ("It disregarded, is a to be maxim not Id. 21. general expressions, every opinion, are in in the case in to be taken connection with 488-89, Kentucky, they go Taylor v. U.S. expressions If 22. which those are used. (1978). case, 98 S.Ct. 56 L.Ed.2d beyond they may respected, the but be ought judgment not to in a subse- control the Miller, quent very point presented when 23. 77 S.W.3d at 576. suit is times, overcome presumption prejudice many As we have stated we a trial hand,24 disturb court’s decision to in the case at meaning that only admit evidence if that an decision is identifying language failure to include in judge’s abuse of discretion.26 And a trial the sexual abuse instructions necessitates represents decision an abuse of discretion of Harp’s reversal sexual abuse convic- only if arbitrary, the decision “was unrea tions. Bell is overruled to the extent that sonable, unfair, or unsupported sound dictum suggests its that a failure to in- legal principles.”27 requisite specific clude the identifying lan- guage in jury Generally, Kentucky instructions can be rendered Rules of Evi (KRE) dence protects information a harmless error powers the curative gathered by “psychotherapist”28 a from closing argument.25 counsel’s Assembly disclosure.29 But the General has B. No Error Admitting in Letter expressly abolished the patient privilege in Psychologist. child abuse cases.30 And the case at hand proceeding is a criminal involving an Harp contends that it was error 620.050(3) abused child—B.B.31 So KRS admit into evidence a letter he wrote while applies, meaning that the trial court did being treated at a psychiatric hospital. not abuse its in admitting discretion disagree. letter.32 brief, 507(a)(2)(B). In its the Commonwealth seems 29. See KRE mainly to contend that there was evidence to support giving of seven distinct sexual (KRS) Kentucky 30. See Revised Statutes abuse instructions. With that unremarkable 620.050(3) ("Neither the husband-wife nor conclusion, agree. serving Rather than any professional-client/patient privilege, ex convictions, a er, method to save howev- cept attorney-client clergy-penitent argument merely Commonwealth’s privilege, ground refusing shall be a highlight easy serves to how it would have report excluding under this section or for been for the trial court to have followed our regarding dependent, neglected, a or earlier identifying directive to include charac- thereof, any abused child or the cause in teristics in each instruction. judicial proceedings resulting report from a pursuant to this section. This subsection Harp's We decline invitation to find that apply any proceeding shall also in criminal sodomy similarly fatally instruction was regarding depen District or Circuit Court unanimity problem flawed. No apparent dent, child.”); neglected, or abused Mullins v. regards to that instruction because (Ky. 211-12 charged only with sodomy. one count of Our 1997). precedent support does not a conclusion that required a trial any court is to include identi- 600.020(l)(e) 31. KRS defines an abused or fying evidentiary detail in instructions neglected child as a child whose health or charged only which a defendant is one welfare is harmed or threatened with harm Bell, count of an offense. 245 S.W.3d at See parent, guardian person exercising when or ("When sup- the evidence is sufficient to supervision custodial control or offense, of the child port multiple counts of the same or allows to be committed an "[c]ommits act jury instructions must be tailored to the testi- of sexual abuse ... the child....” mony in order to differentiate each count others.”) added). (emphasis from the accepted argument’s 32. if we Even for sake See, Commonwealth, e.g., 26. Brewer v. 206 any arguments Harp's of and that assumed 313, (Ky.2006). S.W.3d 320 admitted, the letter should not have been its admission would have been harmless error English, 27. Commonwealth v. 993 S.W.2d (i.e., gist Harp’s because the ad- letter 941, (Ky.1999). 945 B.B.) having mission of sexual contact with psychologist Harp’s 28. A licensed is considered a was cumulative of admission to the 507(a)(2)(B). psychotherapist. engaged KRE authorities that he in sexual conduct 822 (3) previously, As stated prejudice.34 and Admit Evidence

C. No Error of Crimes, trial decision to or Bad Acts. reverse a court’s Wrongs, we Other repre- only if that decision admit evidence trial, Before the Commonwealth an abuse of discretion.35 sents it intended to introduce gave notice that contact between of all sexual evidence the burden of bore The Commonwealth B.B., of regardless whether Harp charge element of each proving each in the specifically contained conduct was doubt.36 Harp beyond a reasonable against Harp. Harp unsuccess against indictment required to was the Commonwealth of to exclude the evidence fully sought According- of intent.37 proof offer B.B., which sexual contact with uncharged sexual contact ly, the evidence of other appeal, court denied. On the trial B.B., including, among Harp between evi that the admission of the contends genitals his things, Harp’s exposing other erroneous. We dis dence in was occasions, was both multiple B.B. on agree. Additional- highly probative. relevant and appeal on Harp challenges 404(b) ly, the evidence provides KRE proof of at least was admissible as crimes, also wrongs, or of other “[e]vidence acci- of mistake or identity and absence the charac prove not admissible to acts is action dent.38 person of a in order show ter However,

conformity such ev therewith.” held, definitively “evi As we have if offered for another idence is admissible against acts perpetrated dence of similar motive, opportu purpose, proof “such as always admissi are almost the same victim intent, plan, knowledge, nity, preparation, perceive do not ble ....”39 And we acci of mistake or identity, or absence 33 by Harp was suffi any prejudice suffered determining admissibility dent” In regard general rule 404(b) cient to overcome evidence, KRE three we focus (2) (1) admissibility perpetrat- of similar acts relevance, ing probativeness, matters: See, Id. e.g., v. Common- 35. B.B. Coulthard 572, wealth, (Ky.2007) 585 230 S.W.3d ("Thus, only were the circumstances sur- 500.070(1). KRS 36. rounding provide fin- Appellant’s refusal to undisputed, evi- gerprint samples but also the See, 510.148(1) (requiring, inter e.g., KRS 37. that the was cumulative in the sense dence alia, intentionally expose geni- his person to plethora evidence re- jury already heard a exposure in the guilty of indecent tals to be by Appellant. taken garding evasive actions degree) first circumstances, simply cannot Under these any possibility there is reasonable see how Commonwealth, See, e.g., 76 S.W.3d Noel v. jury’s evidence contributed that this 923, (Ky.2002) asserts ("Appellant Furthermore, omitted). verdict.”) (footnote testimony Appellant of C.M.’s admission overwhelming. against Harp was the evidence time’ sexually her 'more than one Commonwealth, had abused See, e.g., Brewer v. 404(b) against proscription (holding violated the KRE (Ky.2006) that ad- S.W.3d crimes, hearsay other improper investigatory evidence of admission of mission of However, na- error due to its cumulative wrongs, was harmless this or acts. guilt evidence of defendant’s ture and because of- exceptions within the falls overwhelming). intent, plan, prove or absence fered to 404(b)(1).”). accident. KRE mistake or 404(b)(1). 33. KRE Id., citing Price v. 34. Matthews 888 n. 4 S.W.3d against ed Harp perpetrator same victim. we find as the and was able to no error the trial court’s decision to provide details of the acts committed 404(b) the KRE in ques- against admit B.B. Harp. Importantly, her tion. indicated when she was unable to recall fact or event.

D. Finding Compe- No Error in B.B. Testify. tent to incompe A witness is not deemed solely tent young age because of or inabili

Harp contends that the trial court ty every to recall each and detail of life by finding competent testify. erred B.B. precision. with mathematical And B.B. disagree. We ability demonstrated sufficient to recall Under KRE a witness is pertinent intelligibly most facts while competent if the can “perceive witness ac knowing importance telling curately testify, that about which she is to record, truth. So from our review of the facts, express can recall the can herself we are that the trial satisfied court did not intelligibly, and can understand the need in finding compe abuse its discretion B.B. competency to tell the truth. The bar is testify.43 tent to competency depending low with a child’s Bolstering Testimony E. No B.B.’s on her level of development a Palpable to Constitute Error subject matter hand.”40 particular Of Sufficient Occurred. bearing to “[a]ge this case is the fact that is not determinative of competency[,] and Harp contends that B.B.’s testi there age is no minimum for testimonial mony improperly bolstered tes capacity.”41 Because trial court is “[t]he Mason, timony of Valerie a forensic inter in the unique position to observe witnesses viewer, Speaker and Detective Rhonda and to competency[,]” determine their we the Louisville Metro Department’s Police held principle have fast to the that “[t]he Crimes Against Children Unit. ad trial court has the sound discretion to de unpreserved. mits this issue is So termine whether a competent witness is determining any our review is limited to if testify.”42 palpable.44 palpable error is An error is B.B. demonstrated that she knew such manifest, only if it “is so fundamental and fundamental things age, factual as her date unambiguous that it integri threatens the birth, level, grade name, school ty judicial process.”45

teacher’s name. She also was able to re- call her birthday party latest bolstering and Christ- whether presents, mas as well as the names of her all in occurred at this case. Even assum trial, did, former schools. At B.B. ing disagree identified that it Furthermore, Appellant ability 40. Pendleton v. 83 S.W.3d had the cross-examine D.A. and undermine credi- her bility jury, with the if he felt her had been coerced the social worker. No 41. Id. occurred.”). error Id. Kentucky Rules of Criminal Procedure (RCr) 10.26. ("A 43. See id. at 526 review of D.A.’stestimo- ny identify Appel- reveals that she was able to perpetrator, provide lant as the and could 45. Martin v. against details of the acts committed her. was, most, indirectly at any bolstering contention that that a constituted witness palpable a vouching credibility error. for of another wit- the simply is not the stuff from which ness Generally, credibility “a witness’s are made. palpable errors may not it has been be bolstered until Properly F. Trial Denied Di- However, Court attacked.”46 the at Exposure rected as to Indecent Verdict bolstering is testimo issue not a of B.B.’s Charge. Indeed, ny. Speaker neither Mason nor directly spoke of B.B.’s character for trial Harp contends that the However, jury truthfulness. the could denying court erred in his for a motion indirectly have inferred Mason was exposure directed verdict on indecent

vouching credibility by for B.B.’s testifying charge. disagree.47 about things like the fact that she had for a ruling The familiar standard on 3,000 than conducted more interviews with for verdict follows: motion directed is as children but that not all of those cases verdict, motion for directed the trial On charges. resulted in issuance of Simi all fair court must draw and reasonable larly, jury could have inferred that inferences from the evidence favor indirectly Speaker vouching for was B.B.’s If evidence is the Commonwealth. testifying inves credibility by that she had juror sufficient induce a reasonable to to tigated cases where she had found insuffi beyond believe a reasonable doubt charge suspect. cient to a It ver- guilty, the defendant is directed note, however, important B.B.’s given. pur- dict should not be For totally credibility unchallenged was not be motion, pose of on the the trial ruling cause some evidence introduced show for court must assume the evidence ing that allegedly B.B.’s own mother did true, the Commonwealth is but reserv- not believe B.B. when first she disclosed ing to the credi- questions as Harp’s alleged sexual misconduct. given bility weight to be to such Speaker Mason Because neither nor di- testimony. rectly credibility, vouched for B.B.’s review, appellate the test of a di- On any improper bolstering whether is, rected if under the evidence verdict credibility of B.B.’s But occurred. even if whole, clearly as a it be unreason- would argument we assume for that Mason and guilt, only for a find then able constitutes, most, Speaker’s testimony is entitled defendant directed bolstering credibility, an indirect of B.B.’s of acquittal.48 verdict simply that error is fundamental so A inde- person intolerable as have threatened the commits offense of short, if integrity exposure degree trial. in the first he In fact cent “intentionally genitals that a his under exposes have been able to infer Baking appeal Mar than in the Ken- 46. Miller ex rel. Monticello Co. v. was made trial court. Center, ymount nedy Medical 125 S.W.3d v. (Ky.2004). preservation this issue is However, argu- questionable, at best. parties disagree 47. The whether this issue is perfect- ment would even if the issue were fail preserved ground raised a different ly preserved. for his verdict directed motion before trial course, appeal. court on than he does Of Benham, S.W.2d 48.Commonwealth preservation purposes, appellant an is not permitted argument to make a different on in legal analysis leaving circumstances which he knows or should its and in an issue likely know that his conduct is to cause open likely again which is to arise on retri- affront or alarm to a person age under the majority recognized al. The that the (18) eighteen years.”49 The in- Speaker could infer that Mason and were struction on this in charge was accordance “indirectly” vouching credibility, for B.B.’s 510.148(1). Nevertheless, with Harp KRS questioned but then whether this was er- exposure contends indecent they “directly” ror did not because vouch. charge merged with the sexual abuse In Bell v.

charge. (Ky.2008), recognized 744-45 that a explicitly witness does not have to vouch

B.B. testified that once showed credibility for another witness’s in order penis her and his masturbated front of testimony for the to be improper, but ejaculation. point spe- her to the That implicit vouching runs afoul of the law episode cific as could not have been simulta- Therefore, Bell, well. under I neously charge covered a sexual Id. believe abuse exposure testimony because was error. Harp’s penis without any touching of or B.B. would have I am puzzled majority’s ap- also been insufficient to have constituted sexual parent credibility belief that because B.B.’s abuse.50 it clearly was not unrea- challenged through was somewhat sonable for the to find Harp guilty of testimony, open mother’s that this could exposure.51 indecent vouching. majority the door for the If the equating testimony the mother’s

IV. CONCLUSION. referring to character for un- reasons, For the foregoing Wilbert truthfulness, only this would open the door exposure sodomy indecent and con- referring to evidence to character victions are affirmed. Harp’s sexual abuse 608(a). majority KRE truthfulness. The vacated, convictions are and those offenses recognized, and I agree, that Mason’s and are remanded to the trial court for pro- Speaker’s testimony did not refer to char- ceedings consistent with opinion. this Therefore, acter for truthfulness. it would MINTON, C.J.; 608(a). All sitting. not be admissible under KRE ABRAMSON, CUNNINGHAM, NOBLE, reasons, For the aforementioned I be- VENTERS, JJ., concur. testimony lieve the admission of the SCHRODER, J., only by concurs result issue was error. As to the convictions we SCOTT, separate opinion. J., concurs in however, I affirming, agree are with the part in part by separate and dissents occurred, majority that no palpable error opinion. and would affirm those convictions. How- Opinion by Justice SCHRODER ever, being because the case is remanded Concurring Only. in Result in part, we also have the issue of the because,

I only, testimony concur result arising again on retrial. Be- III(E), part error, I majority testimony believe the erred in I I cause believe the was 510.148(1). 49. KRS any touching by person, another would not degree. constitute sexual abuse in the first 510.110, governs 50. KRS sexual abuse Combs, degree, requires person (stating in the first to sub- 198 S.W.3d at 580-81 51.Cf. ject person” "another to sexual contact. that evidence that defendant masturbated Thus, exposing genitals, exposure). one’s own without could be evidence indecent jeopardy it should be on retrial. with double issues affirmed believe inadmissible majority, although concluding that the conviction discussed therein. The error, even if the it was not Moreover, that the comment “an attor- was, actually did not if it palpable, decide ney’s do not arguments constitute evi- fact, in In order to confusion error. avoid dence,” See, questioned. been has never retrial, on the issue arising again or on (2008). § 75A Trial e.g., Am.Jur.2d appeal, I it was believe incumbent purpose Its is to collate the evidence with actually the majority to decide whether or instructions, the which is what occurred is, fact, not in this error. For Thus, 9.24, here. the commands of RCr reasons, in only. these I concur result in anything error ... or “[n]o done ground ... is by omitted the court for ... Opinion by Concurring Justice SCOTT ... setting ap- a verdict unless it aside part in in dissenting Part. pears to denial the court the of such Although majority’s I concur with the relief would be inconsistent substan- issues, opinion on the other I must dissent justice,” tial followed. should be on IIIA as the Commonwealth clear- issue Here, Bell, majority the ly jury in acknowl- pointed separate out as edges that, doubt able supporting each of the counsel “[n]o items of evidence case, thus, in did charges; clearly attempt the error could—and this seven concede, generic in I ‘flesh out’ the sexual abuse in- harmless this instance. how- ever, I, too, by displeased closing argument telling am at the structions in act of sexual specific which our trial courts fail which abuse frequency with multiple specific from was which count of the differentiate instructions covered however, displeasure, charges.” each This is These were reminders other. not counsel to what the evidence was—not sufficient to obviate “harmless er- Now, these; by unequivocally ror” in instances like evidence itself. rule where include holding proper “that a failure to differentiating there is no in instruc- identifying existed in the evidence and were characteristics factors pointed overruling tions is error” closing out to reversible Bell, effectively prohibits majority Commonwealth. in- application harmless error these majority’s reliance on Dixon v. stances. (Ky.2008) 263 S.W.3d 583 harmless analysis to overrule the error respectively It is I dis- for this reason Bell v. S.W.3d on sent this issue. (Ky.2008),1 simply inappropriate. acknowledged, As in Dixon “the the court the in- was]

issue whether [therein though

structions were erroneous” —even fail differentiate

they did which supported sepa-

two “hammer blows” Dixon, 263

rate offenses. at 592- S.W.3d Notably, only Dixon dealt West, opinion Williams v. majority refers to the harmless termination. The dicta, analysis it was The referenced error review in Bell as Bell, clearly opin- in Bell the error harmless. not. Dicta is statement in an rendered unnecessary to de- 245 S.W.3d at 744. ion which is the ultimate

Case Details

Case Name: Harp v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Oct 27, 2008

Citation: 266 S.W.3d 813

Docket Number: 2007-SC-000288-MR

Court Abbreviation: Ky.