*1 necessary chemicals are ephedrine (or psuedoephedrine) reducing and a to remove
agent oxygen an atom. pathways are other for
There several occur, using other precur-
the reaction reduction, certainly and most
sors variety
there are a of solvents that could effectively simple This is a oxida- used. taught
tion reduction reaction which are
elementary chemistry. multiple There reducing that can serve as
chemicals Thus, necessary that all the
agents. say
catalysts, reducing agents, solvents present opened up a can
must be has real
of worms. multiple including
There are chemicals merely
water and alcohol that are used as process. for an extraction To list
solvents
all of them make the unwiel- would statute
dy.
I think a more reasonable common sense is that stat-
application the statute if appre-
ute is satisfied the defendant is ephedrine a reducing
hended with
agent.
Wintersheimer, J., joins dissenting
opinion. PURCELL, Appellant,
Jerel KENTUCKY,
COMMONWEALTH OF
Appellee.
No. 2001-SC-0707-DG.
Supreme Kentucky. Court 18, 2004.
Nov. *3 an- On A.B. declined. David a demonstration. Rolph, Flemingsburg, Charles W. Welch, occasion, Welch, told A.B. Office of David 0. Law other Ashland, Appellant. for for him and approached Counsel had young two women in- to have sexual expressed their desire General, Stumbo, Attorney D. Gregory them, the two of but wanted tercourse with Ryan, Attorney T. Assistant Gener- Perry do- before exchange photographs nude General, al, Attorney Criminal Office agreed photographed. to be ing so. A.B. Division, Frankfort, Appellate Counsel res- proceeded two then Appellee. Appel- A.B. undressed and idence where Opinion of the Court Justice to take a full a Polaroid camera lant used *4 COOPER. A.B. A.B. photograph frontal nude of Purcell, undressed, a
Appellant, photographed dressed, Jerel and Appellant then sixteen, age nude male child under the of of photograph a full frontal nude A.B. took by a subsequently was convicted and physical contact occurred Appellant. No jury promoting of a Fleming Circuit Court session, the two nor were during photo minor, by a performance sexual KRS kept Appellant time. nude at the same 531.320, years in and sentenced to ten photographs. both Appeals The of affirmed prison. Court of the two women A.B. never met either granted discretionary Ap- we review. and photo- supposedly wanted see who (1) (b) of pellant asserts that subsection any photo- nor did he ever see graphs; (definition 531.300(4) con- KRS “sexual Appellant admitted graphs of the women. minor”) unconstitutionally duct a is was description of the incident that A.B.’s (2) overbroad; that the instruc- vague and that he had met both accurate and insisted tion under which hе was convicted violated him a verdict; they had shown women and that right to a unanimous and crimes, wrongs of other and acts themselves. He photograph nude him. improperly against admitted We subsequently decided claimed he agree, and reverse conviction “stupid was a mistake” the whole idea for a trial. and remand this case new Al- of A.B. destroyed photograph name of gave police the though Appellant question At the time of the incident approached had of the women who one (estimated 1992), for- Appellant to be him, anyone unable to locate police were victim, A.B., years ty-five age and the County. Fleming lieu by that name years age. Appellant, a was thirteen A.B., the Fleming County, missing photograph sheriff of was an former accuracy ad- acquaintance During of A.B.’s father. parties stipulated 1992, Appellant summer of and A.B.’s fa- pho- rendition of the mission of an artist’s taking together walks began ther young a The rendition showed tograph. accompanied health A.B. them. reasons. nude, straight aheаd standing facing boy subsequently father discontinued his A.B.’s held out at his sides. Con- with his arms but A.B. continued to walk participation testimony, artist’s A.B.’s sistent with that, Appellant. during with A.B. testified an boy with portray rendition did not walks, occasionally initi- these erection. him about sexual
ated conversations occasion, A.B. if one he asked matters. On I. OF STATUTE. VALIDITY and, when A.B. denied he masturbated statutory such, him if he would like A. Present scheme. Appellant asked itals, buttocks, provision Appel pubic under which area or or the convicted, 531.320(1), breast, lant was KRS states: female whether or not subse- quently placed a mark obscured a person guilty promoting sexual thereon, altered, any otherwise when, by a performance knowing minor resulting picture, photograph motion thereof, the character and content he representation, other visual exclu- produces, promotes any per directs or exposure portrayed sive of matter which includes conduct formance private, family of a nature not intend- by a minor. family. ed for distribution outside the added.) (Emphаsis added.) (Emphasis Obviously subsections 531.300(7) “promote”: KRS defines (4)(a) (4)(c) application have no here. publish, to prepare, “Promote” means 4(d) specifically Subsection includes manufacture, print, procure or of- “photograph” “exposure;” as an and be- agree fer or to do the same. “perform- also a cause 531.300(5) “performance”: KRS defines ance,” photograph Appellant took of any play, “Performance” means motion promoting A.B. could constitute a sexual *5 picture, photograph, or dance. Perform- performance that includes sexual conduct any repre- ance also means other visual by a minor under as defined subsection sentation exhibited before an audience. (4)(b). added.)1 Thus, (Emphasis if act of A.B.’s 531.300(3)defines “obscene”: KRS posing by nude for the taken predominate ap- “Obscene” means the conduct a constituted “sexual peal as a is to of the matter taken whole minor,” Appellant properly convicted in conduct in- prurient interest sеxual 531.320(1). of violating KRS KRS volving minors.2 531.300(4) defines “sexual conduct B. Historical context.
minor”: by a minor” “Sexual conduct means: “Pornogra- Chapter KRS entitled phy,” originally enacted 19743 as a (a) masturbation, homosexuality, Acts of part Kentucky Except Penal Code. lesbianism, bestiality, sexual inter- form” in KRS “special for the verdict course, intercourse, or deviant sexual 531.080, un- original provisions its remain simulated; actual or changed. KRS 531.010-.070. The defini- (b) with, Physical contact or willful section, 531.010, tions defines “ob- KRS genitals; intentional exhibition and “sexual conduct” as follows: scene” (c) Flagellation pur- or excretion for the (3) “Obscene” means: pose gratifica- of sexual stimulation or tion; or (a) average person, applying To the (d) contemporary community stan- exposure, The in an obscene man- ner, dards, appeal apparently predominant the unclothed or matter, whole, taken as a is to gen-
unclothed human male or
female
Commonwealth,
"prurient”
Ky.App., 910
held that the word
is not unconsti-
1. In Alcorn v.
(1995),
Appeals
S.W.2d 716
the Court of
held
tutionally vague.
at
Id.
799.
may
person.”
that "an audience
consist of one
Id.
717.
Acts,
265-72,
Ky.
eff. Jan.
3. 1974
ch.
1, 1975.
Commonwealth,
Mattingly
Ky.App.,
v.
2.
In
(1993),
Appeals
the Court of
contact with the
Ferber,
In New York v.
458 U.S.
of sexual
purpose
or excretion
(1982),
by the distribution.” Id. at
Ky.App.,
102 S.Ct.
973 S.W.2d
a case
(use
alleging a violation of KRS
at 3355.
531.310
of
performance),
a minor
a sexual
Thus,
question
under the Miller test
Ap-
Commonwealth asked the Court of
work,
whole,
of whether a
taken
aas
peals to construe
KRS 531.300
accor-
appeals
prurient
interest of the
dance with Ferber and not to apply the
average person bears no сonnection to
Miller definition of “obscene.” Id. at 490.
the issue of whether a child has been
Noting
merely
permits
Ferber
a state
physically
psychologically
harmed in
requirement
obscenity
to eliminate the
of
production
of
“It
the work....
from
if it
pornography
its child
laws
so
irrelevant
to the child [who has been
desires,7
Appeals applied
the Court
or not
...
abused] whether
the material
legislature
statute
“until the
as written
artistic,
literary,
political
has
or social
should
choose otherwise.” Id.
490-91.
value.”
session,
At its next
the General Assem-
(internal
Id. at
389 at the definition KRS genitals or “exhibition of the included within genitals,”11 531.300(4)(d). People (citing Id. at 73-74 purpose ... the stimulation for of sexual Cal.App.4th 37 Cal. viewer,”12 Kongs, v. so define of the as to further (1995), and v. Batch People Rptr.2d 327 unprotected juris conduct. No other the (Colo.1990)). elor, note P.2d 599 We diction, however, employs language the 531.300(4)(d) that the requires that KRS “willful and intentional exhibition of no such be “obscene” whereas exposure purpose. that genitals” for 531.300(4)(b). to applies requirement KRS addressing “vague First or her If child is unaware that his challenge, language ness” “willful being are there genitals photographed, obviously intentional exhibition” refers unless Chapter under KRS no offense victim, the conduct of not the defen is obscene as defined photograph 531.320(1) persоn dant. violates KRS 531.300(3); if but the child intention KRS by knowingly producing, directing pro for a ally poses “performance,” nude moting performance that includes sexual voluntarily or whether induced or whether by a minor. conduct re conduct Such forced, obscenity element of is not objective part a conscious on the quires instance, In that it is the abuse required. i.e., defendant, Mattingly intent. Cf. child, obscenity, that is the not Commonwealth, 2, at 800 supra v. note primary proscribed. evil to be (reaching respect same conclusion with interpretation This is consistent proscribing 531.310 of a minor KRS use holding pro- that can Ferber’s the state in performance). a sexual If “willful and pornography requiring scribe child without tentional exhibition” to the defen referred reproduction visual be obscene rea, dant’s mens the definition statute evil the visual primary because the is not defining would be redundant of the statute consumer, reproduction’s effect Thus, the offense. “willful and intentional Ferber, at its effect on the child. 458 U.S. exhibition” refers the victim’s mental 759-61, 3355-57; at see also 102 S.Ct. Lоgston, at 72 state. See 973 S.W.2d Osborne, at 1697. U.S. S.Ct. 531.300(4)(d) (applying KRS of KRS language conclude We distinguishing Mattingly, supra note be 531.300(4)(b)provides notice to a adequate cause the victim Mattingly intended ordinary person intelligence of what geni the defendant her and, thus, prohibited is not void conduct is tals). Commonwealth, Martin vagueness. Thus, legislative intent was to ex (2003). Ky., 96 S.W.3d 531.300(4)(b) clude from KRS those situa 531.300(4)(b) However, photo tions where defendant filmed or while KRS *8 Ap child’s graphed applied” a nude without the is not unconstitutional “as child Martin, (citing 96 50 knowledge. supported pellant, That is see at conclusion S.W.3d Fox, Appeals’ Log of in Trs. State Univ. N.Y. v. the Court decision Bd of 3037, ston, 469, 485, 3028, holding activity is 109 106 supra, that such 492 U.S. S.Ct. 5-17-301; 272, 31(6); § E.g., § Gen. Laws ch. Nev.Rev. Ark.Code Ann. Del.Code Mass. 11. 11, 1103; 200.700(3); 263.00(3); Comp. § Laws tit. Mich. § Ann. N.Y. Stat. Penal Law 750-145c(1)(f). § 2907.323; § Ann. Okla. Stat. Ohio Rev.Code 1024.1; 163.665; 21, § § tit. Or.Rev.Stat. 311.4; § Code Rev. E.g., 12. Cal.Penal Colo. 43.25; § Ann. Stat. Ann. Tex. Pen.Code Vt. 568.060; 18-6-403; § § Mo.Rev.Stat. St. 2822; § § tit. Wis. Stat. 948.05. 13 Ann. 9.68A.011(3)(e). Wash. Rev.Code 390 (1989)), Id., it facially any
L.Ed.2d 388 is removed claim of overbroad overbreadth. very 112, 110 “because existence 495 U.S. at at [its] cause S.Ct.
others not
court to
before the
refrain from
531.300(4)(b)
KRS
does not contain an
constitutionаlly
speech
protected
or ex
531.300(4)(d),
exemption, as
KRS
does
for
pression.”
(quoting
Id.
Broadrick v. Okla
reproductions
private,
visual
of a
family
homa,
601, 612,
2908,
413
93
U.S.
S.Ct.
nature not
for
intended
distribution out-
2916,
(1973),
emptions:
... court
dealing
When a
is
(a)
performance
The
or
material
challenged
with a ...
statute
as over-
sold, disseminated, displayed, pos-
broad,
course,
should,
it
construe
sessed, controlled, brought or caused
problems,
statute to avoid constitutional
state,
into
brought
pre-
or
subject
if
limiting
the statute
to such a
artistic,
sented for a bona fide
medi-
construction....
Facial overbreadth has
cal, scientific, educational, religious,
limiting
not been
when a
invoked
con
judicial,
governmental,
prop-
or other
placed
struction has
or could be
been
or to
purpose, by
physician, psy-
er
challenged
statute.
scientist,
chologist, sociologist,
teach- Martin,
Ferber,
54 (quoting
S.W.3d at
er, person
bona
pursuing
fide studies
458 U.S. at
at
769 n.
S.Ct.
3361 n.
librarian,
research,
clergyman,
Oklahoma,
and Broadrick v.
413 U.S.
prosecutor,
judge, or other person
2916).
Osbornе,
93 S.Ct. at
having a
interest in
proper
the mate-
supra,
Supreme
the Ohio
Court had nar-
performance;
rial or
rowly
prohibit
statute to
construed the
(b)
person
parents,
knows that the
possession
viewing of
“the
material or
guardian, or custodian has consented
performance
of a minor who is
a state of
in writing
photographing
or use
nudity,
nudity
where such
constitutes a
nudity
the minor in
state
graphic
lewd exhibition
involves a
focus
*9
which the
manner
material
genitals,
person
the
and where the
de-
performance
is used or transferred.
picted is neither the child nor the ward of
2907.323(A)(3)
Id.,
103,
person
Ohio
Ann.
495 U.S. at
charged.”
Rev.Code
(Supp.1989).
strongly suggested
391
female show-
videotape of minor
limiting
produced
Supreme
Court’s
Ohio
undressing
not “sexual conduct”
ering
the statute from a claim
construction saved
Ferber,
to include “actual
by
of
Id. See also
458 as defined
statute
overbreadth.
(“the
764, 102
genitals”);
U.S. at
S.Ct. at 3358
conduct
Asa v.
lewd exhibition of
714,
prohibited
adequately
Commonwealth,
Va.App.
must be
de
441
17
law,
by
26,
applicable
(photograph
fined
state
as mit
of six-
29
S.E.2d
”
authoritatively
(empha
ten or
constmed
standing nude with
teen-year-old female
Martin,
added));
sis
96
at 56
S.W.3d
not “lewd exhibition
her hands at her side
cf.
(“Insofar
Foley,
v.
798
because,
as Commonwealth
nudity”
although exposed, vic-
can be
(Ky.1990)
S.W.2d 947
construed
genitalia were not the
tim’s breasts and
prohibit
limiting construction of a statute
Frantz v.
photograph);
focus of
Com-
overbroad,
challenged
facially
we over
as
monwealth,
348,
273,
9 Va.App.
388 S.E.2d
it
mainstream principle
rule
and follow the
(1990) (full
photo-
nude
276-77
frontal
judicial
exemplified by
construction
Os
boys “just standing
graphs
teenage
”). Thus,
borne v.
....
we construe
Ohio
engaged
there” and
sexual conduct
not
531.300(4)(b)
defining
KRS
as
“sexual con
nudity”).
Those
not “lewd exhibition
by
duct
a minor” as a “willful
intention
depiction
actual
as
cases seem to treat the
genitals” only
al exhibition of the
when
factors,
other
only
consideration
that con
such exhibition is lewd. Under
arousal or intent of the
such as
struction,
does not
from
thе statute
suffer
Gates,
See
photographer, as irrelevant.
Osborne,
overbreadth.
unconstitutional
(“[Defendant’s
at
897 P.2d
intent
1349
112-13,
1698;
characteristic of the
photographed
child
depiction
the visual
in-
is
but of
designed
the exhibition
tended or
to elicit
photogra-
which the
a sexual
response in the viewer.
pher
up
sets
for an audience that consists
of himself or
pedophiles
likeminded
...
Id. at 832. Dost did not require that all
is,
presented
so
photographer
six
present
factors be
depiction
before a
lewd,
as to
satisfy
arouse or
could be found to
the sexual
be
but rather that
cravings
all circumstances
surrounding
of a
voyeur.”);
A,
de-
United States v. Mr.
piction
examined, taking
be
into account
326,
(E.D.Mich.1991) (be-
F.Supp.
756
329
age
jurisdictions
of the child. Id. Most
cause it is child abuse for a photographer
that have addressed the issue have
sexually
pose a
purposes
child for
of the
adopted the Dost factors for determining
photographer’s
sexual gratification, “the
what
constitutes
lewd or lascivious exhi-
apparent motive of
photographer
bition. See United
v. Wolf,
States
890
response
intended
of the viewer are rele-
(10th
241,
Cir.1989); Villard,
F.2d
244-45
vant.”);
State,
Alexander v.
906 S.W.2d
122;
Arvin,
885 F.2d at
United States v.
107,
(“whether
110 (Tex.App.1995)
the con-
(9th
1385,
Cir.1990)
900 F.2d
4
1391 n.
tent of a
constitutes a lewd or
(approving jury instruction based on Dost
lascivious exhibition of a
genitals
child’s
factors);
Rubio,
United States v.
834 F.2d
depends on the intent
photogra-
of the
442,
(5th Cir.1987) (same);
448
United
pher”). We conclude that
the best ap-
Nolan,
1015,
States v.
818 F.2d
1019 n. 5
proach
ie.,
factors,
is to
all
consider
(1st Cir.1987),
grounds
overruled on other
nature of
depiction,
the intent and
Hilton,
58,
United States v.
363 F.3d
67
child,
demeanor of the
photogra-
and the
(1st Cir.2004);
A,
328;
Mr.
F.Supp.
756
at
pher’s
respect
intent with
to the effect of
Stаte,
618,
Cummings v.
Ark.
353
110
the depiction on its intended audience.
272,
(2003);
S.W.3d
People
279 n.
Gagnon,
997 P.2d
(Colo.Ct.App.
Dost,
In United States v.
F.Supp.
1999);
Bimonte,
People v.
187 Misc.2d
(S.D.Cal.1986),
aff'd,
piction
i.e.,
sexually suggestive,
in a
adopt
Kentucky.
lewd and
them for
place
pose generally
or
associated
Whether a depiction meets the Dost test is
activity;
with sexual
Knox,
best left to the fact-finder.
32 F.3d
3)
depicted
whether the child
an
747; Arvin,
(“whether
393 mi- by a Thus, performance a sexual promoting a defen- by conduct a minor. sexual subparagraph beyond under the can be convicted if it from evidence dant nor believed (b) genitals by the the if the exhibition of “knowingly he that a reasonable doubt volitional and a lewd manner. minor was perform- a promoted or produced, directed sub- can be convicted under defendant by sexual conduct which included ance (d) the of regardless whether paragraph than [A.B.],” was then less and that “[A.B.] volitional, only expo- if the exposure The years age.” of instructions sixteen The sure was an obscene manner. conduct” in the exact defined “sexual then evidence presented enough Commonwealth 531.300(4), i.e., only not of wording KRS con- jury in this case for a reasonable to of A.B.’s exhibition requiring that without beyond a that the clude reasonable doubt manner, but also be in a lewd genitals his was a photograph question willful the jury the to consider whether requiring geni- of A.B.’s intentional lewd exhibition “[ajets of masturba- conduct consisted Benham, Ky., v. 816 tals. Commonwealth lesbianism, bestiality, tion, homosexuality, (1991). Momentarily ig- S.W.2d intercourse, inter- or deviant sexual theory that noring the Commonwealth’s simulated,” course, KRS actual produced to sat- Appellant photograph the 531.300(l)(a), “[fjlagellation or excre- isfy allegedly prurient his own homosexual of sexual purpose tion for stimulation interest, Appellant’s theory own was that 531.300(l)(e), none gratification,” KRS satisfy pru- took the to photograph he by supported were the evidence. of which interests two adult who rient females by jury fore- signed verdict form The to desired have sexual intercourse with jury find merely stated: “We the person way, A.B. Either could be Defendant, Purcell, Jerel GUILTY to be lewd under the factors. found Dost a Mi- Promoting a Sexual Performance However, an jury because the did have not nor.” opportunity finding, Appel- to make that lant is entitled to a new trial. address We al presented a jury When they the other claims of error because are guilt and or more ternate theories of one likely to recur retrial. upon by the unsupported are of those theories II. JURY INSTRUCTIONS. evidence, reflect and the verdict does not found, the theory guilt which court under trial instructed to a jury right that it find has denied guilty could defendant been verdict, returning jury to the issue 14. Prior its sent of its decision of submitted State, judge a note to the trial that read: case.” Cardona v. S.W.2d guilty (jury "we (Tex.Ct.Crim.App.1997) we find the will it note that If defendant of # 1 only be understood the Court struggling manslaughter that and not are between [A.B.] sexual conduct the intentional acquittal guilty” was a verdict of not genitals c. d. exhibition of his and that a. murder); charged see also United offense of portion apply? and the first of B do not (8th Bartley, 855 F.2d States /s/ Cir.1988) (note judge signed by twelve all Foreperson asking jurors additional and stat- responded that not The trial court it could they completе ing were in consensus jury give the instructions. This additional presented been insufficient evidence had inquiry, precluding an a note was not verdict “guilt beyond prove a reasonable doubt the jeopardy principles Appellant’s double under “ver- defendant was not a innocence” pursuant of sexual retrial definition setting jury's required aside dict” 531.300(4)(d). by a under KRS conduct minor guilty). verdict later by jury is written "A 'verdict' declaration *12 (b) pu- unanimous verdict. Commonwealth v. genitals, unclothed [A.B.]’s Whitmore, (2002); Ky., 92 exposed S.W.3d bic area or buttocks were Commonwealth, Ky., Burnett v. an exposure S.W.3d obscene manner and the (2000) (wherein trial private, family the court was not of a not nature gave a definition describing instruction dif- distribution intended for outside ways ferent offense of trafficking family. the [A.B.]’s ain controlled substance could be commit- “Intentionally” 4. in- person acts —a ted, supported some of which were the tentionally respect to a to with result or not). evidence and of which others were objective conduct when his conscious to or engage cause that result to in that retrial,
If the evidence is the same on conduct. following specimen the instructions would determining 5. “Lewd manner” —In accurately jury: frame the issues for the genitals whether exhibited his in a [A.B.] 2(a), lewd manner under Definition No. Instruction No. you may the following consider factors: Promoting a Sexual Performance (1) point the focal whether of by a Minor visual was depiction genita- the child’s You will guilty find the defendant of area; pubic lia or promoting performance a sexual aby (2) the setting whether of the visual if, minor under instruction only this i.e., depiction sexually suggestive, was if, you believe beyond from place generally in a pose or associated a all of following: reasonable doubt activity; with sexual county A. during ap- That in this (3) the child depicted whether proximately and before the 1992— pose, in an or in inappropri- unnatural herein, finding of the indictment the de- attire, considering ate age of fendant knowingly produced, or directed child; promoted a performance which included (4) fully whether the child was or [A.B.]; sexual conduct by сlothed, nude; partially or AND (5) depiction whether the visual B. That was then less than [A.B.] suggested coyness willing- or a sexual years sixteen age. of activity; to in sexual engage ness the visual depiction whether Instruction No. designed intended or to elicit a sexual viewer. response Definitions find, required You but are not prepare, 1. “Promote ”—Means find, that all six of these factors are publish, print. or present in order to find that the exhi- 2. “Performance,” purposes for of bition was These factors should lewd. case, this a photograph. means be considered when depiction minor,” 3. a “Sexual conduct age viewed as a whole case, purposes of means: child taken into account. (a) willfully intentionally [A.B.] predomi- “Obscene”—means the exhibited in a lewd man- genitals appeal nant a matter taken as ner; prurient whole is to a interest involving
OR conduct minors. true, Purcell, you Q. Mr. BAD Isn’t it III. “OTHER ACTS.” conduct, pattern have a course case-in- During Commonwealth’s behavior, using the ruse and chief, jury for the prosecutor played boys there’s fish- story young portion audiotape of an poles tackle ing equipment During that testi- grand jury testimony. a creek or a lake the bottom of prose- *13 mony, on cross-examination and go up need to there you that all cutor, whether he had Appellant was asked it and fish it out? dive nude for that told A.B. a boat had overturned ever reservoir, tackle and spilling in the other No, A. I did not. that A.B. should fishing equipment, and an objection, request for Defense counsel’s into the to dive nude reservoir retrieve for were motion a mistrial admonition and equipment. Appellant admitted fishing prosecutor overruled. The continued: A.B. about boat telling the overturned years Q. many true that for Isn’t it telling him nude denied to dive into the in those of you’ve had an interest prosecutor reservoir. asked When sex? [A.B.]’s anyone
whether he had told else about the No, A. I did not. boat, Appellant overturned admitted tell- was objection counsel’s J.P., Again, defense boy, another about it. A.B. was ing continued: prosecutor overruled. The never asked about the boat trial and testify J.P. did not at trial. true, Purcell, Q. you’ve Mr. that Isn’t it young variety used a of stories To rebut the obvious inference created boys them to take their clothes get to prosecutor’s question during his off in your presence? grand jury testimony, on Appellant denied direct examination that he had fabricated No, A. it is not. in story about the boat order to lure objection counsel’s was Again, defense children to the reservoir. He that testified prosecutor then asked overruled. The fact, had, in in a boat overturned the res- Appellant he had told similar whether produced pho- ervoir and and identified a R.S., J.W., fishing stories to equipment tograph recently pulled of a boat from the K.F. them their and to induce to remove portraying reservoir as the boat that had responded that he clothing. Appellant He overturned. further testified as fol- any conversa- could not remember such lows: asking any tions and denied specifically Q. you anything ever Did do this fish- them to order to retrieve undress man, young including taking asking He also ing equipment. denied satisfy photograph, this to some inter- untangle K.F. to nude order to dive yours est of his sex? an line, get K.F. if fishing asking he could No, sir. A. erection, mastur- encouraging K.F. to cross-examination, asking a Appellant Finally, Appellant denied reiter- bate.
On M.M., child, pants to his fourth remove ated that he had told A.B. and J.P. about trip a fish even boat, gigging encourag- overturned but denied underwear only below though pants were wet to dive into the reservoir M.M.’s ing them objected to all Defense counsel fishing gear. He knees. missing retrieve rebuttal, the Com- might questions. else he of these could not remember whom J.W., M.M., K.F. that monwealth called told about boat. He testified have oc- testify as to events R.S. witnesses approxi- the boat overturned and sank years before curring twenty mately approximately 1990. The then asked: prosecutor charged objec- Appropriate offense. K.F. also testified to occasions when he registered testimony tions were into gone wearing had the water shorts all four witnesses. untangle Appellant’s fishing Ap- line and pellant had asked him to take off his forty-onе years age
J.W. was when shorts. On none of those occasions did tried in April case was 1999. He actually Finally, K.F. remove shorts. testified that sometime 1960’sto late KF. testified that Appellant had shown 1970’s, the early when he eleven to kept in pictures him that his tackle old, he box years fourteen him had told him and asked if he had ever masturbated. fishing there a new and reel rod Contrary to the statement made lost in a portion had been shallow prosecutor during cross-examination of Fleming Appel- Creek. J.W. stated that testify Appellant, Appel- K.F. did not lant told him that he would to dive have *14 encouraged lant him to masturbate nude into to fishing the creek retrieve the him if he had an asked had ever erection. equipment, he did as not want the interior get his car to wet from water- J.W.’s M.M., trial, at age thirty-nine the time of logged clothing. Appel- J.W. declined and that years testified when he was fifteen lant drove him home. old, him Appellant fish gigging had taken
R.S., thirty-nine trial, age at the time at a creek near and that Sherburne after- testified that he to when was thirteen four- wards, change him Appellant instructed to old, years teen Appellant he fished with at even pants though his and underwear his a lake near home of Flem- R.S.’s outside pants only were wet below the knees. ingsburg. Appellant R.S. testified that instructed, doing M.M. While as noticed once him into go told to undress and groin Appellant staring at his area. M.M. fishing water to see if he could find some further testified that when he was ten equipment Appellant that had believed old, him years Appellant told that he knew so, been lost in area. and R.S. did reel, he could a new rod and where obtain Appellant clothing removed also his and he to his but that would have remove entered the water. R.S. further testified clothes order to do so. M.M. declined. Appellant place that asked him once to his possi- advances four The Commonwealth naked in the buttocks window of the home theories ble under which staying, Appellant where he was so that (A) have been admitted: to properly could could Al- through see them the window. by Appellant factual rebut assertions dur- though Appеllant approach R.S. saw (B) ing testimony; impeach Appel- his to night, stayed window later that he bed (C) 608; KRE credibility lant’s under and go did not to the window. good charac- rebut evidence of K.F., forty years who was at the old (D) 404(a)(1); prove under KRE ter trial, time fishing testified that he went 404(b)(1). motive under KRE with a Appellant at lake near KF.’s home A. To assertions. rebut factual several 1969 to when he times from ages only further relevant assertion of fact eleven twelve. He him persuaded by Appellant respect testified that to induc- Appellant raised boys presence ing young three to undress and dive into to undress his occasions testimony he did not concoct expensive water to look some fish- was his ing story boat to lure equipment supposedly that was about the overturned (as However, area. Appellant never men- children the reservoir insinuated sunken him during tioned about a boat. asked of anything questions upon this ex seized jury prosecutor 927. The testimony for the jury played grand case-in-chief). if had defendant he and asked the change during the Commonwealth’s woman, Mrs. Hou- another Appel- not assaulted no evidence to rebut There was assault. denied that Appellant also boat overturned ben. assertion that lant’s in 1990. The Commonwealth’s and sank ob- overruled the defendant’s The court occurring about events jury rebuttal evidence jection admonished the Creek, at a lake near Flem- Fleming only could be considered this evidence lake, and at another unnamed ingsburg, the credibili- affecting purpose for the near Sher- fish on a creek gigging while As defendant as witness. ty of the before approximately twenty years fact, burne no evidence there was matter sunken evidence about the did not rebut jury, only implications before fishing spilled reservoir or its boat interrogation and the defendant’s testimo- gear. any Nor did of the rebuttal denials. involving photo- ny relate to incidents Hou then called Mrs. prosecutor Id. The under a ruse that an graphing a nude child guise of im under the as a witness ben inter- woman wanted to have sexual adult had, testify peachment to only aspects Ap- course with him. The indeed, predecessor her. Our assaulted evi- testimony that the rebuttal pellant’s error. held this to be reversible court *15 denials of Appellant’s dence rebutted were justify the cross-exami- sought It is during accusations made improper intro- defendant and the nation of the In that cross-examination. prosecutor’s testimony of Mrs. Houben duction of the evidence, impeachment it was respect, answering that in upon ground discussed To the ex-
which will be infra. the defendant attorney’s question, broad tent that the evidence rebutted assaulted or had he had never testified photo- assertion that he did not take A.B.’s any prosecuting witness raped sex,” satisfy “in his it graph to an interest question person. part The other or evidence was either character evidence prosecuting witness referring to the motive, which will also be discussed course, But the was, proper. other infra. for an It called part improper. credibility. impeach
B. To A wit- an irrelevant matter. answer on on matters may impeached nоt be ness im prosecutor cannot make or collateral that are irrelevant collateral matters proper inquiries about evidence being Incompetent tried. issue and then introduce on cross-examination for im- foundation be made the cannot inadmissible evidence rebuttal otherwise A witness’s of a witness. peachment Stans guise impeachment. under the relating pre- to his questions answers 165, States, 219 F.2d 168- bury v. United far as so regarded are vious conduct Cir.1955). (5th v. 71 Keene Common be contradict- they that cannot collateral (1948), wealth, 308, 926 Ky. 210 S.W.2d 307 cross-examining unless by party ed part grounds on other overruled in permits matter which the law they go to Commonwealth, Ky., 306 S.W.2d Colbert impairing purpose for the to be shown defendant, (1957), 825, on trial for credibility. assault, you was asked: “Did rape (internal quotations citations Id. at 929 assault, any other time either night omitted). any other Dorothy rape beat or Scott in the provision is no Although He an there any place?” time or person at prohibiting Id., Kentucky Rules of Evidence “No, I didn’t.” S.W.2d swered: facts, impeаchment on collateral we have not be for impeachment used purposes. continued recognize prohibition as 2003, See also CR 43.07. As amended in principle valid of evidence. Neal v. KRE 608 does not permit proof specific Commonwealth, 843, Ky., 95 evidence, S.W.3d instances of conduct extrinsic (2003); Commonwealth, Slaven v. Ky., 962 they may, “in the discretion of the (1997); S.W.2d Eldred v. Com- court, if probative of or un- truthfulness monwealth, Ky., 906 S.W.2d 705 truthfulness, inquired into on cross- (1994), abrogated grounds on other examination of the concerning witness Barroso, Ky., Commonwealth v. 122 the witness’ character for truthfulness or ” (2003).15 S.W.3d Professor 608(b) (as untruthfulness .... KRE suggests Lawson the issue is more amended). prosecutor’s cross-exami- properly by applying decided the KRE 403 questions nation Appel- did not address test, ie., balancing weighing the probative truthfulness, lant’s morality. but his Re- impeachment against value of the prej- gardless, Commentary to the 2003 udicial effect of that possi- evidence and its amendment clarifies that “the cross-exam- Lawson, ble confusion of supra issues. iner go beyond not the answers he 4.05[3], note at 276. It would be a gets inquiry from such and later introduce occurrence, think, rare we when preju- extrinsic evidence to contradict the an- dicial effect of evidence of “other bad acts” 608(b), swers.” KRE Evidence Rules Re- would not substantially outweigh im- (2003).16 view Commission Notes This is peachment value of such evidence. That is preexisting consistent with the common especially true here where ad- respect law rule with to the cross-examina- taking mitted to both A.B.’s given tion of a character witness who has taking satisfy prurient and to it to inter- hearsay what amounts to est. good reputation defendant’s for a particu- *16 lar character trait.
Further, the rebuttal evidence good a to specific consisted of When witness testifies instances of miscon . tried, party, may At the time character of a he be asked if duct. this case was KRE he provided party 608 has not heard that had credibility that; supported proof may witness could be attacked or done this or not be only by in in opinion by evidence the form of made other witnesses rebuttal that Thus, reputation community. spe party things ques- had done the cific instances of wrongful conduct could tion. against proof Professor Lawson notes that there is also a criminal defendant in of a impeachment by 1, 1992, no mention in the Rules of prior July crime committed to unless bias, interest, corruption only limited that evidence would have been admissible un- coverage impeachment by prior inconsis- principles prior der evidence in existence to (noting tent statements that KRE 612 deals adoption (Emphasis of these rules.” add- only requirements, imply- with the foundation ed.) 107(b) Although only KRE deals ing impeachment permissible). that such rules, adoption the effective date of the Lawson, Kentucky Robert G. The Evidence i.e., 1, 1992, July principles the same should Handbook, 4.05[3], (4th § Law ed. 275 apply adoption of amendments to the 2003). LexisNexis pointed Commentary rules. As out in the 107(b), pre-exist- KRE “cases tried ... under pre-2003
16. The version of the rule must be ing evidence rules must be retried ... under 107(b) applied at retrial. KRE refers to crim- the same rules if retrial ... becomes neces- “originally brоught inal actions on for trial” 107(b), sary.” Commentary prior to KRE Drafters' the effective date of the rules with the (1989). proviso that "no evidence shall be admitted fact; grand Commonwealth, why play for Ky. testify to that Etherton v. (1932). inci- if the Appellant’s denial jury tape 55 S.W.2d testi- by AB.’s direct proved dent could be character evidence. C. To rebut noted, prosecu- mony? previously As intro The Commonwealth alleged A.B. about tor never asked trait of char pertinent evidence of a duce introduction It was the incident at trial. moral character of the general acter or evidence “bad character” of this irrelevant only in rebuttal of evidence accused case-in-chief during the Commonwealth’s by offered the accused. good character at- Appellant’s the door” “opened 404(a)(1). as KRE The Commonwealth by resulting prejudice tempt to cure statement that he Appellant’s serts that that the sunken boat sto- rebuttal A.B. the nude to photograph did not not interested ry true and that he was satisfy interest “in sex” [A.B.’s] his own did “in This brief rebuttal [A.B.’s] sеx.” good evidence of moral character sub the door for the Common- reopen not true, if ject to rebuttal. Even that were was a ho- prove Appellant wealth only is admissible character evidence specific inadmissible voyeur mosexual opinion, spe not reputation the form of open “The door doc- instances of conduct. 405(a). cific of conduct. KRE instances (not prevent prejudice supposed trine is “By only reputa for the use of providing ” it) .... Law- to introduce or exacerbate situation, opinion tion or evidence in this 1.10[5], son, (quot- § at 46 supra note plainly implies prohibition the rule Laird Christopher C. Mueller & C. ing conduct.” particular evidence of acts of Evidence, (2d § 12 Kirkpatrick, Federal 15, 2.20[4], Lawson, supra note at 116. ed.1994)). Certainly, mere trial court admitted the re the nude statement that he did not take buttal evidence the stated belief that of A.B. because of his interest photograph deny “opened had the door” open “in not the door to the his sex” “did that he A.B. to nude into thе ing told dive that followed.” Sanborn storm of evidence fishing equipment reservoir to look for the Commonwealth, Ky., 754 S.W.2d boat, spilled from the overturned (1988). claiming that he did not A.B. motive. D. To rebut evidence “in satisfy in the nude to his own interest *17 door,” “Opening sex.” some [A.B.’s] Finally, as Commonwealth referred to as “curative admissibili
times
admissible to
that the evidence was
serts
in
ty,”
party
occurs when one
introduces
his motive
Appellant’s denial that
rebut
“opens
admissible evidence that
the door”
nude was to
photographing A.B.
equally
to introduce
party
for the other
“in
sex.” As
satisfy his interest
[AB.’s]
evidence in
Norris
inadmissible
rebuttal.
of
that the rebuttal evidence was
suming
Commonwealth,
411,
Ky.,
v.
89 S.W.3d
motive
prove
Appellant’s
fered
(2002).
course, Appellant’s evi
Of
satisfy
taking
Further,
it
dence was not inadmissible.
voyeurism,
homosexual
evidence
own
injected
was the Commonwealth
KRE
admissible under
other bad acts was
case
voyeurism
homosexual
issue into the
404(b)(1)
three-part
if it satisfied the
only
jury tape
in which
by playing
grand
Commonwealth, Ky.,
v.
test of Bell
Appellant
using
denied
sunken
(1)
(1994),
evidence
viz:
Is the
S.W.2d 882
boаt/fishing gear ruse to lure A.B. into
(2)
probative
it have
val
relevant?
Does
prose
into the
The
diving nude
reservoir.
(3)
substantially
probative
its
value
obviously
that A.B. would not ue?
Is
cutor
knew
outweighed by
prejudicial
its
effect? Id.
...
proving
motive
other
[B]ecause
at 889-91.
may inject
preju-
acts
serious risks of
dice ... considerable caution is need-
1. Relevancy.
end,
In
bring
ed.
other acts that
bearing
relevancy
factor
on the
such risk should not
admitted to
prove
evidence
depends
motive
prove motive where the connection
whether the issue of motive is in actual
with such elements in the case ...
Lawson,
dispute.
supra
note
attenuated,
too
where such elements
2.25[3][b],
§
Appellant
at 127.
admitted
abundantly
are
established
other
taking the photograph and admitted that
...,
they
evidence
or where
are not
satisfy
prurient
he took it to
interest—
seriously contested.
but not
prurient
his own
interest. Whose
prurient
interest
to be satisfied was
greatest
Need is
and relevance is clear-
largely
photo-
irrelevant
to whether the
est when the
dеfense
denial
Thus,
graph was lewd or obscene.
criminal act ....
weak,
relevancy of the evidence was
Lawson,
2.25[5],
§
supra note
at 146
fact,
strongly
best.
it more
tended to
(quoting
Kirkpatrick, supra,
Mueller &
prove only
propensity,
a purpose which
110).
noted,
§
As
we condemned
Pendleton v. Common-
voyeurism
“other bad acts” of homosexual
wealth, Ky.,
685 S.W.2d
was not crucial to the Commonwealth’s
(“Contrary
language
to the
v.
Russell
that he
Appellant
case because
admitted
Com.,
(Ky.1972),
whether there is sufficient evidence that probative weight. their Commonwealth crime, wrong, actually the “other or act” (1999). English, Ky., 993 S.W.2d Bell, 890; occurred. 875 S.W.2d at Law- hand, prejudicial On the other effect son, 15, 2.25[3][c], supra note at 130-31. It identi- devastating. this evidence was J.W., R.S., The testimonies of K.F. and Appellant long-practicing fied as a serial aspect M.M. satisfied this of the test. only purpose predator. homosexual jury Prejudice. encourage S. of this evidence was to of what he to convict because if Even evidence is relevant and was, did on the occa- rather than what he it if probative, pro should be excluded its charged sion of the offense. substantially outweighed by bative value is *18 danger prejudice the of undue and confu decision with re trial court’s KRE sion of issues. 403. balancing KRE test spect to the protection against propensity If evi- reviewed for abuse of discretion. Johnson Commonwealth, Ky., meaningful, to be courts must v. 105 S.W.3d dence is (2003); exception English, to at 945. limit the use of the “motive” 993 S.W.2d Here, however, not pertinent judge situations where motive is the trial did of the purport weigh probative of the case and where the the value issues effect but against prejudicial other crimes evidence shows a motive to its was admissi charged just only commit the offense and not ruled the evidence “opened had some offеnse ble because that he he maintained but photographs, to defer to required are not door.” We so, gratification, for his own sexual did not that was never exercised. discretion Cf. States, instead, neighborhood two to entice 478 F.2d Woosley v. United (deference (8th Cir.1973) him. re- with When having not into sex girls experi- not court not exercise that he did quired where trial did defendant testified sentence). in We con- when he took imposing gratification discretion ence sexual rebut- probative opened that the value of the the door photograph, clude he nude outweighed substantially prosecution testimony tal evidence rebuttal and should have prejudicial its effect effect that his motive which was to the Here, prior excluded. bad gratification. been in time not too remote acts involved were con- Accordingly, we reverse The evidence was inadmissible. imposed therefor viction and the sentence to KRE pursuant admitted properly Fleming Cir- and remand this case to 404(b)(1) to show it was intended because trial in accordance cuit for a new Court committing intent the motive or opinion. with this crime. LAMBERT, C.J.; JOHNSTONE, circumstances, any possi- Under all KELLER, STUMBO, JJ., concur. the defen- error was harmless because ble picture he took the dant testified that
WINTERSHEIMER, J., part concurs in gratification of oth- boy for the sexual part by separate opinion, and dissents in all I affirm the conviction ers. would GRAVES, J., joining opinion. with respects. WINTERSHEIMER, Justice, part.
concurring part dissenting GRAVES, J., joins opinion. majority I with so much of the concur validity of the opinion upholds However, disagree I question.
statute majority the result achieved
with it reverses the conviction and
insofar as disagree
remands for a new trial. I also analysis and result found in the in-
portions opinion jury labeled SHOFNER, Appellant, Chad and “other bad acts.” structions presented against at trial The evidence to withstand
the defendant was sufficient Kentucky, COMMONWEALTH acquit- his motion for a directed verdict Appellee. judge trial denied the properly tal. The No. 2002-SC-1023-MR. motion, and the defendant’s conviction violate his first amendment does not Kentucky. Supreme Court jury not vio- rights. The instructions did of the defen- process rights late the due Nov. nudity.” “simple nor it criminalize
dant did not constitutional. This is
KRS 531.320 is *19 nudity. simple
a case of case, the defendant testified taking and admitted
his own defense