Lloyd Bandy v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 28, 2017 NOT TO BE PUBLISHED

~Upumr ~fond nf ~~WW\ [A [L 20 l 6-SC-000489-MR [5) ffi\lr lE1ah/1; 1<,:n lklm111. be.. LLOYD BANDY. APPELLANT

ON APPEAL FROM BUTLER CIRCUIT COURT v. HONORABLE RONNIE C. DORTCH, JUDGE . NO; 15-CR-00123 ' COMMONWEALTH OF KENTUCKY .APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A circuit court jury convicted Lloyd Bandy of three counts of first-degree.

sodomy, five counts of first-degree sexual abuse, and one count of attempted

first-degree rape. Bandy now .appeals the resulting judgment as a matter of

right. I He argues on that the trial court erred ·by failing (1) to grant his motions

for a directed verdict and (2) to read all the jury instructions to the jury.

Finding no merit to either issue, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lloyd Bandy was an inmate at the Kentucky State Penitentiary, ·serving a \ tert-year sente.nce for four counts of Portraying a Minor in a Sexual

·Performa_nce and Voyeurism. Bandy wrote several letters from prison '

I Ky. Const. § l 10(2)fb).

_, . confessing his guilt to the crimes charged in the present ~ase-first-degre.e

sodomy, first-degree sexual abuse, and first-_degree rape. Bandy claims he

wrote these letters only under pressure from another inmate and the alleged

victim. The letters found their way into the hands of the Kentucky State Police, . .

who began investigating.

During the investigation, Bandy again confessed to the crimes. Because

of the police investigation, a grand jury indicted Bandy on muitiple counts of

first-degree sodomy, first-degree sexual abuse, and first-degree rape.

In addition to presenting the confession letters themselves, the

Commonwealth presented _testimony at trial from the vict~m corroborating

Bandy's c~nfess_io~ a:Q.d from the officer responsible for the ~nvestigation.

Regarding the first issue on appeal, Bandy alleges that the trial court

should have granted his motions for a directed verdict at the close of the.

Commonwealth's case. Bandy made two motions for directed verdict at that

time. His first motion for directed verdict included the following grounds:

It's my position that if they [the Commonwealth] can't narrow a time down more than two years that's not sufficient to go to the jury on. The original indictment stated [the crime] happened between '94 and 2000. The-Commonwealth has moved to amend ... to say [the crime] happened between '96 and '98. My position is that if you can't narrow it down more than that it's insufficient to go to a jury.

The Commonwealth does not dispute the preservation of this issue as to

Bandy's first motion. Bandy's second motion for directed verdict induded the

following grounds:

... Criminal Rufo 9.6 allows that if there is no evidence but a confession that's not sufficient to go forward. My motion for a

directed verdict is along those lines~because absent his confession the victim in this case would have never been interviewed and there never would have been any other evidence.

The trial court denied both motions for directed verdict. The parties dispute the preservation of the issue as to Bandy's second motion.

Bandy testified in his own defense and countered the Commonwealth's evidence by stating that he only confessed because he was coerced by another inmate and by the victim herself. Bandy also elicited testimony from the victim regarding a potential relationship between the victim's mother and the inmate who allegedly coerced Bandy to confess.

Defense counsel renewed the motiQns for directed verdict at the close of all evidence, and the trial court denied both motions.

Regarding the second issue·, Bandy alleges that the trial court erred when it failed to read all the jury instructions t6 the jury. Both parties agree that the trial cnurt did not read every jury instruction verbatim and that this issue is unpreserved.

The jury found Bandy guilty of three counts of first-degree sodomy, five counts of first-degree sexual abuse, and one count of attempted first-degree rape. The jury recommended a life sentence on the sodomy counts, ten years on the sexual-abuse counts, and twenty years on the attempted rape, which the trial court followed, sentencing accordingly. This appeal followed.

II. ANALYSIS

A. Standard of Review

The standard of review for each issue depends on the preservation of

them. The Commonwealth does not dispute the preservation of Bandy's first

motio:r:i for a directed verdict. "On appellate review, the test of a directed verdict

is, if under the evidence as a whole,. it would be ~learly unreasonable for a jury ) to find guilt, only then the defendant is entitled to a directed verdict of

acquittal. "²

The parties dispute the preservation of Bandy's second motion for a ,)

I * directed verdict. If the issue is preserved, this Court will apply the Benham

standard. If the issue is unpreservedr this Court will only reverse the trial

court's ruling if affirmi.ng would result in palpable error.³ Palpable error

requires a showing that the alleged error affected the "substantial rights" of a

defendant, when~ relief may be granted "upon a determinatjon that manifest

injustite has resulted from the error." 4 To find that "manifest injustice has

resulted from the error," this Court must conclude that the error so seriously

affected the fairness, integrity, or public reputation of the proceeding as to b~

/ "shocking or jurisprudentially intolerable. "5

The Commonwealth argues that Bandy's second motion is not specific epough to preserve this issue. We think Bandy's motion is specific enough to have alerted the trial court to the issue raised and thus specific enough to have preserved the issue for appellate review. Regardless of which standard is

applied, however, the conclusion is the same, as we will show. ) Both parties ~gree that Bandy did not pres·erve the jury .instruction issue.

Thus, the standard of review for this issue is palpable error.

B. Handy's Motions for Directed Verdict. / 1. Motion Alleging_ Unspecified Time Period. On the charges of first-degree sodomy, first-degree sexual abuse, and

attempted first-degree rape, a consistent element in these offenses is that the victim be less than 12-years-old.6 "In a felony case, the failure to prove the specific date of the offense is·of no consequence unless time is a material ingredient of the offense."7 "[A] child victim's inabilitY to give specific times and dates in a child sex abuse case does not render the evidence insufficient to support a conviction as long as the date of the offense is not a necessary element." 8 According to these rules, the prosecution must prove beyond a . reasonable doubt that the victim was less than twelve:..years-old at the time of the alleged crimes bu:t does not have to prove a specific date of the events.

6 KRS 510.070(1)(b); KRS 510.040(1)(b); KRS 510. l 10(b)(2): 1 Stringer v. Commonwealth, 956 S.W.2d 883, 886 (Ky. 1997). (citing Peyton v. Commonwealth, 157 S.W.2d 106 (Ky. 1941)). s Dunn v. Commonwealth, 360 S.W.3d 751, 761 (Ky. 2012) (citing Stringe·r, 956 S.W.2d at 885-86).

Bandy essentially asks this Court to require·more certainty in the timeframe evidence presented by the Commonwealth as to when the crimes occurred. No case in Kentucky has held to require exact specificity in pinpointing the dates of the alleged crime; in fact, Kentucky cases state the opposite.9 "In each of those cases, the victims described a distinct factual basis for each separate charge so that the jury could de~ermine in each instance whether a separate criminal offense had been committed."10 "Discrepancies in

the victim's testi.mony are matters of credibility going to the weight to be given '· I

by the jury to the child's testimony." 11

Taking these rules together; it is the jury's prerogative to decide whether ., a more certain time period is required for a conviction. Our job is to decide "if

under the evidence as a whole, it would be clearly unreasonable· for a jury to find guilt, only then the defendant is· entitled to a directed verdict of acquittal." 12

The Commonwealth's evidence included the victim's testimony as to Bandy's alleged crimes, confession letters written by Bandy, and testimony by

· 9Farler v. Commonwealth, 880 S.W.882, 886 (Ky. App. 1994) ("it was not necessary that [juvenile .victim] give specific dates that the offenses occurred"); Garrett v. Commonwealth, 48 S.W.3d 6, 9 (Ky. 2001) ("It would be wholly unreasonable to expect a child of such . tender years . to remember specific dates, especially given the long .time period over which the abuse occurred."); Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002) ("[P]roof of the precise dates ·on which the offenses were committed is not required of a child sexual abuse victim where the evidence is 'ample to separately identify the various offenses charged. m) (quoting Hampton v. Commonwealth, 666 S.W.2d 737 (Ky. 1984). 10 Miller, 77 S.W.3d at 576. 11 Garrett, 48 S.W.3d at 10. 12 Benham, 816 S.W.2d at 187 (citing Sawhill, 660 S.W.2d at 5) (quoting Trowel, 550 S.W.2d at 533). .

~ . ' an officer who interviewed Bandy during which Bandy confessed to the crimes

again, all confirming a time period when the victim was under the age of twelve. Bandy's evidence included Bandy's testimony denying the alleged . crimes, wit5 explanations. Consjderirtg this evidence, having heard both sides, it would not be unreasonable for a jury to find that the victim was under the age of twelve during the commission of the alleged crimes, and thus we affirm the trial court's decision to deny Bandy~s first motion for a· directed verdict.

2. Motion Alleging Insufficient Evidence. A question exists as to the correct applicable standard of review for this . ) . .

motion. But under either standard, Bandy's appeal fails. TJ;le alleged preservation issue notwithstanding, Bandy argues that the trial court should have generally granted Bandy's motion for a directed verdict, in addition to specifically granting Bandy's motion for a directed verdict regarding jury instructions six, ten, and eleven. Bandy's entire argument ·on this issue rests on the Commonwealth's alleged violation of RCr 9.60.

As RCr 9.60 states, "A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that

such an offense was committed."13 "Criminal Rule 9.60 precludes the - ' '

conviction ofa defendant solely on the basis of his own uncorroborated out-of-court statements. But the r:equirement of corroboration relates only to proof

that a crime ~as ·committed, not to whether the defendant committed it." 14 '

13 RCr 9.60. 14 Lofthouse v. Commonwealth, 13 S.W.3d 236, 242 (Ky. 2000) (citing Commonwealth - v. Karnes, 849 S.W.2d 539 (Ky. 1993)).

"Once. the corpus delictilS has been established, the fact that the defendant committed the crime can be proven entirely by his own confession."16 "... [T]he / corroborative evidence need not be such that, independent of the confession, would prove the corpus delicti beyond a reasonable doubt; and proof of the corpus delicti may be established by considering the confession as well as the corroborating evidence." 17 "[EJven if the circumstantial evidence in a case standing alone would not suffice to prove guilt beyond a reasonable doubt, it can suffice to corroborate an out-of-court confession." 18

In this case, the Commonwealth did establish the corpus delicti through the victim's testimony and through the official investigation. Coupled with this corroborating evidence, Bandy's confessions confirmed that he, in fact, ·committed the crime. So because the Commonwealth did meet RCr 9.60 and Lofthouse's sta9dards, no trial court error can be found.

Specifically, regarding jury instructions six, ten, and eleven, Bandy additionally argues that the victim's testimony was not specific enough for a reasonable juror to conclude Bandy was guilty of the crimes specified in these instructions, which include first-degree sexual abuse of a victim under the age of twelve aIJ.d first-degree rape of a victim under the age of twelve. This· argument is without merit because the victim testified in detail to countless

1s ~The fact o_! a crime having been actually committed." Corpus Delicti, Black's Law Dictionary (6th ed. 1994). 16 Id. (citing Dolan v. Commonwealth; 468 S.W.2d 277 (Ky. 1971)). 11 Id. (citing Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997)). 1s W.D.B. v. Commonwealth, 246 S.W.3d 448, 455 (Ky. 2007) (citing Blades, 957 S.W.2d at 250).

. l instances of abuse, supported by the .official investigation. This evidence. corroborates Bandy's confessions. Again, because the Commonwealth did meet RCr.9.60 and Lofthouse's standards, no trial·court error can be found.

We affirm the trial court's, denial of Bandy's second motion for directed verdict.

C. Failure to. Fully R~ad Jury Instructions

Kentucky Rule of Criminal Procedure 9.54(1) states:

It shall be the duty of the court to instruct the jury in writing on~ the law of the case, which instructions shall be read to the jury . prior to the closing summations of counsel. These r~quirements may not be waived except by agreement of both the defense an,d the prosecution.¹⁹ ·

Kentucky Rule of Criminal Procedure 9.54(2) states:

No party .may assign as error the giving or the failure to give an instruction unless the party's position has been fai:ily and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party · objects and the ground I or grounds . . of the objection.2°

"Failure to comply with subsection (2) of RCr 9.54 J::t.as been consistently held to

prohibit review of alleged error ir:i instructions because of the failure to properly

. preserve .J the claimed error. "²¹

Simply stated, Bandy did not comply withRCr 9.54(2). Bandy never

made an opjection to the content of the instructions, nor did he object to the

trial court's method of\reading the instructions to the jury. Stated differently,

' Bandy n·ever fairly ·and adequately presented this alleged failure to the trial

court by an offered instruction or by motion, nor did he make an objection before the court instructed the jury. RCr 9.54(2) statutorily mandates the denial of review of an issue that does not comply with its terms. So, we affirm the trial court on this issue.

III. CONCLUSION.

· Holding that no error occurred both in the denial of Bandy's motions for directed verdict and in the jury instruction reading, we affirm the judgment.

Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, Venters and Wright, JJ., I

sitting. Minton~· C.J.: Cunningham, Keller, VanMeter, Venters arid Wright, JJ., concur. Hughes, J., concurs in result only. COUNSEL FOR APPELLANT:

John Gerhart Landon Assistant Eublic Advocate

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Joseph A. Beckett Assistant Attorney General

10.

Footnotes

[2] Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d 530,533(Ky. 1977)).

[3] Kentucky Rule.of Criminal Procedur~ (RCr) 10.26.

[4] Id. s Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky:2006).

[19] RCr 9 ..54(1).

[20] RCr 9.54(2). .

[21] Gibbs v. Commonwealth, 208 S.W.3d 848,.853 (Ky. 2006), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010).