Yarnell v. Commonwealth
833 S.W.2d 834
Ky.
1992
Check Treatment

*1 834 by judgments The of conviction are af- drugs been hidden ob could have fact, drugs firmed.

jects, photographs. such as

were discovered in the bottom drawer pho the the same bureau which contained All concur. tographs. Supreme U.S. Court have ruled a lawful both premises generally search of fixed extends object the entire area in which the found, may the authori including

search chests,

ty drawers, search clos

ets, object may and containers where that Ross, v. United States found.

likely be 798, 102 2157, YARNELL, 456 72 L.Ed.2d 572 Appellant, U.S. S.Ct. James Vernon Commonwealth, Ky., Estep 663 (1983). 213 S.W.2d Kentucky, COMMONWEALTH subject The nature matter the Appellee. immediately apparent photographs made it No. 90-SC-820-MR. activity criminal the officer that some top had occurred. It is irrelevant Kentucky. Supreme Court of photograph depict not indic- was 25, June activity ative of criminal since the investi- right to under gating officer had a search presence of mari- photographs for the Estep, supra.

juana or cocaine.

“plain at the view” doctrine invoked photograph

time the officer saw daugh- performing oral sex

Barbara Horton, remaining pho- supra.

ter.

tographs properly were then reviewed and, thereafter,

the officer seized. plain

Regardless view doc

trine, the officer it was inevitable that

would have obtained sufficient evidence to for the sexual offenses

initiate police information from the

since the had investigation Robert sexual

ly abusing stepdaughter. This informa victim, from source inde

tion came seizure in

pendent of the 1987 search and Segu photographs were found.

which the States, 468 U.S. 796, 104

ra v. United S.Ct. Nix

3380, 82 L.Ed.2d 599 2501,

Williams, 467 U.S. S.Ct.

L.Ed.2d trial court to allow

The decision by the Commonwealth of

the introduction sup- evidence was photographs into and is con-

ported by substantial evidence There appeal. RCr 9.78.

clusive on

no error. *2 Murrell, Murrell,

David E. Murrell and Louisville, appellant. for Gorman, Atty. Gen., Chris Michael L. Harned, Gen., Atty. Asst. Appel- Criminal Div., Frankfort, late appellee. WINTERSHEIMER, Justice. appeal judgment This is from a based on verdict which convicted Yarnell of 16 counts of various sexual offenses and sen- imprisonment tenced him to a term of life plus years. presented

The issues are whether there was sufficient evidence as to forcible com- pulsion; required whether evidence misconduct; instruction on sexual whether prejudiced by amending the defendant was indictment; Count One of whether dou- jeopardy ble would be in any involved re- trial on the rape charges; testimony whether the admission of con- cerning proper similar acts was and wheth- er the life sentence and the sentence to a years concurrently. term of should run be allegations This case centers around period approximately years time of during which Yarnell and his wife were fear, placed a subjec- living together with his two threat which married objective than an standard must her natural children. tive rather stepchildren who were Commonwealth, February applied. Salsman v. married wife Ky.App., Dyke 565 S.W.2d 638 Van living together 1982 after since November *3 Commonwealth, Ky., 581 S.W.2d 563 marriage, At the time of the of children, Robbie, aged Tanya two and were 10, respectively. Yarnell and his 12 and compulsion of The definition was ultimately divorced 1989. The wife were commentary accompanying in the discussed school, doing badly in daughter, who was in the 1971final draft. We find statute reported sought counseling. The counselor in our of this case. useful consideration story of to social services sexual abuse part: It states in police. in turn mother who contacted The threat, express The term includes Yarnell arrested and and were both implied, that overcomes earnest resist- counts charged with various of sexual by placing person in fear of imme- ance guilty pled The mother to first- abuse. physical injury to himself diate death degree complicity sexual and to sec- abuse not that ... the definition does ond-degree sodomy and was to a sentenced fear the victim’s be “reasonable” ... years concurrently. five

total of phrase requires “earnest resistance” 11 was Yarnell convicted counts token initial resistance but more than rape, first-degree four counts of first-de- showing victim than that the was less sodomy complicity gree and counts of two incapable strug- of additional physically first-degree He sen- to sexual abuse. was gle against assailant. to consecutive terms of life and tenced that Yar- The evidence established appeal This followed his conviction.

years. against the compulsion nell used forcible argues to a Yarnell that he was entitled they testified two both children because acquittal because the directed verdict of him; he that was al were afraid prove the element of prosecution failed to every ways screaming and oth yelling and first-degree compulsion for obscenity. testified er word was an Robbie first-degree sodomy and Yarnell stay away that to from and he tried no indi- He claims that evidence abuse. room until the would not come out of his against Tan- physical used cated force was gone. several occasions defendant was On overcame their ear- ya and Robbie which against a Tanya, her wall Yarnell hit threw no resistance that there was evi- nest The two children ripped her blouse. physical force. dence of threat of some of the their mother not tell warned because Yarnell sexual attacks appellate review standard things of the mother about them not to tell a denial of a motion directed verdict Tanya said she unaware. which she was evidence if on insufficient based away get from to way no existed believed whole, it not under the evidence as a would crazy. thought he was that she Yarnell and clearly for a to find unreasonable fight Tanya physically that she did testified he is not entitled to a guilty, the defendant she was back at least one occasion acquittal. verdict of Common directed he age. years of She stated about 18 Benham, Ky., 816 S.W.2d 186 wealth bedroom, that her pull tried her into to Sawhill, Ky., Commonwealth begin to swell and arm the door and hit Trowel v. Common 660 S.W.2d raped her. her on the bed he threw (1977). Here wealth, Ky., 550 S.W.2d Yarnell would testified that Both children whole, it clear evidence as a was under the perform to by forcing them punish them jury to find Yarnell reasonable for the ly him. oral sex entitled Consequently, he was not guilty. hap- was she what testified knew acquittal. Tanya Actual a directed verdict thought she right prove pening not but forc force is not needed fi- could mother by sacrificing herself her determining compulsion. whether thought happiness. She nally implied attain because an victim submitted support mentally mother ill and had been evidence in this case did not by Yarnell. Robbie testified on sexual misconduct. Thus brainwashed instruction give that he allowed the sexual abuse because judge correctly the trial declined to family he feared that would lose its such an instruction. security, like to see

financial did not unhappy. The child was also unduly prejudiced mother Yarnell go jail his mother if he afraid that would by the amendment of Count One anyone happening told what was and that from first-degree sodomy indictment take it out on his mother. would first-degree rape to conform to the evi The amendment dence. did not amount chil- evidence indicates that two particulars error. bill of reversible emotional, subject dren were to constant *4 gave this Yarnell notice that the evi case They duress. lived in verbal prosecution rely dence on which the would might do to continued fear of what Yarnell sodomy pertain did not but rather was They them or their mother. testified that first-degree rape. defense tri Yarnell’s at along went with the deviate sexual prejudice by al also indicates no occurred only fear. Under behavior because this simply the amendment because he main whole, clearly the evidence as a charges complete tained a denial to all the jury unreasonable for the to find that Yar- against him and in some instances offered engaged nell in sexual intercourse with charge by children means of an alibi. Whether Count One was a compulsion. forcible Accordingly, sodomy he was not entitled to a direct- of the defense of denial acquittal. present. ed verdict of would have still been There was 9.24; no reversible error. RCr Howard v. judge Yarnell contends that the trial Commonwealth, Ky., 554 S.W.2d 375 erred he refused to instruct on the (1977). lesser-included offense of sexual miscon- through charge duct. Counts Six Fourteen if this Yarnell next claims first-degree rape jury Yarnell with and the first-degree rape charge, would reverse accordingly. was instructed by offense retrial on this would be barred jeopardy. We find no reason to The evidence double did not argument have instruction on sexual A consider this because we misconduct. trial judge first-degree must instruct the on all lesser- affirmed his conviction on supported by included offenses are rape. which Commonwealth,

the evidence. Cannon objected At trial Yarnell to testimo Ky., 777 S.W.2d 591 McClellan v. daughter niece. Commonwealth, ny by his natural and his Ky., 715 S.W.2d 464 she was (1986). daughter His testified that when clearly The evidence established old, engaged in sexual compulsion by years that Yarnell used two touching. The niece testified that when means of threats and intimidation to en old, Tanya. years she was once gage in sexual intercourse with she was twelve touching. sexual judge gave The fact that the trial lesser- awakened Yarnell’s testimony argues that included instructions on Counts Two Yarnell now in time and too dissimilar through Five and Count Fifteen was based was too remote charges on Tanya for the for which was age on the of the victim at the time nature examination of the entire any question not on as trial. A careful of the incident and strong direct that there is compulsion. lack of Counts Two record indicates case, evidence, considering the entire through charged Yarnell first- Five with that the possibility is degree sodomy alleged to occurred in there no substantial have different, and the al Tanya 12 result would be 1982 or 1983. would have been 9.24; leged nonprejudicial. are RCr years age at that time. Count errors Commonwealth, Ky., 439 first-degree charged Abernathy Yarnell with Fifteen v. Common alleged occurred in 1986 when S.W.2d 949 Caudill rape to have wealth, years Ky., 777 S.W.2d Tanya have been 16 old. would ample evi- judge certainly It to But there was error the trial consecutively dence from to conclude that the vic- run life sentence which Commonwealth, year against participation, sentence. See tim’s while (1988) Ky., pursuant wishes, compelled. 746 S.W.2d 401 held was not 532.110(l)(c) term-of-years K.R.S. that a Opinion dissenting in My concern in this consecutively with a sentence could not run jury, is with part failure submit to as Therefore sentences for life sentence. requested, Miscon- instructions Sexual consecutively years may run with terms 510.140, duct, of- KRS as lesser included concurrently must run each other but committing forc- fenses to the case Consequently, a life sentence. occasions, rape on nine cover- Tanya on imposi remanded to the trial court for ing acts of intercourse with the vic- appropriate tion of the sentence. age. years tim when was sixteen she affirmed, judgment of conviction is Fourteen, These are Six Counts for resentenc- but this matter is remanded appellant con- for each of which ing. rape. victed appellant contends that this victim’s C.J., COMBS, STEPHENS, testimony no further than stat- own went REYNOLDS, LAMBERT, SPAIN *5 ing physical “the not but emo- force was JJ., WINTERSHEIMER, concur. testified, And, tional.” indeed she “he J., LEIBSON, separate dissents by it anything physical, was didn’t threaten opinion. emotional, us feel like dirt.” The he made Justice, LEIBSON, dissenting. Majority description the facts in the of properly giving the Com- Opinion, while Respectfully, I dissent. every of reasonable monwealth the benefit error, appellant’s first claim inference, overwhelming far short of falls principal complaint, has been that the Com- force, threat of physical or the proof that necessary monwealth failed to establish the ear- a nature to overcome physical force of respect compulsion with element resistance, accompanied commis- the nest first-degree rape the to of the sion acts. first-degree sodomy against him. made emphatical- premise complaint Majority Opinion this is that no states “the evi- physical physical injury places, nor threat of that ly, force in two different accomplish charged in on was used to the acts an instruction dence alleged provides At the time the But no the indictment. it sexual misconduct.” earlier, 1986, state, except in KRS to offenses occurred this is so explanation why 510.010(2) dealing compulsion” “Forcible as with defined fashion while in backhanded meaning: gave lesser- judge trial the “fact that the Two on Counts included instructions

“[Pjhysical that earnest force overcomes Fifteen,” that through Five and Count threat, implied, express or resistance or age the victim done on the “based resistance earnest overcomes and not Tanya at of the incident the time in of immediate placing person fear com- lack any question on as injury himself or physical death or the victim age pulsion.” It is not in he or person or fear that another of forc- a lack pointing to but the evidence immediately kid- person another will here. is issue compulsion that napped.” describing earnest re- offense of The words “that overcomes The statute 510.140, Misconduct,” the statute states deleted when KRS sistance” were “Sexual apply here. simply in but It states: age was amended no limitations. misconduct guilty of sexual reservations, person “A I concur some With intercourse enough engages there was Majority Opinion another intercourse com- deviate sexual to infer forcible evidence from which latter’s consent.” jury. person without charges to the these pulsion submit this of- The obvious difference between

fense, stated, Sodomy Rape I is as I or require physical it does not force accompanying the acts sufficient

threats resistance, only a lack of earnest

overcome may

consent. be so that While could infer from the evidence that

here here from a threat of

victim submitted overwhelming as to over-

physical force so

come earnest resistance and sustain convic- respectfully suggest I

tion for the lesser offense would also

conviction for that, on evidence while

be reasonable based consent, a lack of the act

there was by general cir- was motivated

submission abuse, of emotional and verbal

cumstances by physical threat of

rather than force or accompanying force the act. event, given in explanation Majority Opinion concluding it was

proper give “lesser-included instructions and Count Counts Two Five victim,” age on the

Fifteen ... based giving proper to refuse such

but *6 Four-

instruction Counts Six

teen, incoherent, is either inconsistent or one at it. In either

depending on how looks

event, it should suffice. JONES, Appellant,

Sherman Kentucky,

COMMONWEALTH

Appellee.

No. 91-SC-316-MR. Kentucky.

Supreme 25, 1992.

June Aug. Amended

As