C.S. v. Commonwealth

C.S., A CHILD UNDER EIGHTEEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2019-CA-1574-DG

Commonwealth of Kentucky Court of Appeals

FEBRUARY 5, 2021

NOT TO BE PUBLISHED

ON REVIEW FROM KENTON CIRCUIT COURT

HONORABLE PATRICIA M. SUMME, JUDGE

ACTION NO. 19-XX-00005

OPINION

AFFIRMING

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BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: We granted discretionary review of this case in which the Kenton Circuit Court vacated an order of the Kenton District Court. The district court had dismissed the case. The circuit court reversed that dismissal and remanded the case to the district court for additional proceedings. After our review, we affirm the circuit court.

This case involved the prosecution of a juvenile for separate charges of sodomy in the first degree and sodomy in the third degree. The Kenton Circuit Court's order of September 24, 2019, vacating and remanding, summarizes the background of this case as follows:

C.S. was initially charged with Sodomy in the First Degree. The event leading to this charge was an incident between defendant, who was thirteen at the time, and a neighbor, who was fourteen at the time: the neighbor reportedly has a diagnosis of moderate to severe autism but was found competent to testify by the District Court. Defendant was convicted; that judgment was vacated on appeal in another division of the Kenton Circuit Court in case number 18-XX-002 based upon the Commonwealth's concession that the evidence was insufficient to establish forcible compulsion. The Commonwealth then proceeded to charge defendant with Sodomy in the Third Degree based on the same incident. [A charge under similar facts occurring after July 14, 2018 would be Sodomy in the Second Degree under KRS §510.080(1)(b), not Third Degree, per an amendment to the statutes. Kentucky Acts chapter 109 §3.] The District Court, noting that the only potentially applicable section of KRS §510.090 as it was in effect at the relevant time was that involving a victim who is incapable to consent due to their status as an individual with an intellectual disability, granted a defense motion to dismiss, stating that she had already found competency.

(Brackets in original.)

The district court's handwritten order entered on January 16, 2019, states as follows: "Δ motion - [word scratched out] sustained jeopardy attaches.sodomy in the third degree requires incapable of consent victim found competent charge dismissed."

By order entered on September 24, 2019, the Kenton Circuit Court vacated the district court's order and remanded for further proceedings. The circuit court explained that different standards govern the determination of competency to testify under KRE¹ 601(b) and an "individual with an intellectual disability" under KRS² 510.080(4) as defined in KRS Chapter 202B:

Both parties agree that these are different standards and the court's determination that a potential witness is competent to testify does not necessarily preclude a finding that they are an individual with an intellectual disability. . . . As the standards are different, this court does not find sufficient evidence in the record to support the finding of the trial court that the witness did not have an "intellectual disability," a finding that affects the element of capacity to consent.

The circuit court noted that the defendant's motion to dismiss in the district court also raised issues of double jeopardy and vindictive prosecution. The circuit court concluded that because the

Third Degree [Sodomy] charge required proof of intellectual disability which the First Degree charge had not, it was not a lesser included offense and is not strictly barred by the double jeopardy clause of either the Fifth Amendment to the United States Constitution or Section Thirteen of the Kentucky Constitution.

Furthermore, the circuit court concluded that:

Although defendant complains . . . that in the first trial the Commonwealth did not raise present [sic] the issue of capacity to consent and specifically stated in closing argument that it was not pursuing a charge of Sodomy in the Third Degree as a lesser included offense, the later filing of the complaint of Third Degree may have been bad form but does not meet the criteria for prosecutorial vindictiveness.

On October 18, 2019, C.S. filed a Motion for Discretionary Review, which this Court granted by order of February 14, 2020.

C.S. first contends that the circuit court's interpretation of the law allows the Commonwealth "two bites at the apple." C.S. relies on KRS 505.040(1) and argues that successive prosecutions based upon the same course of conduct -- or on evidence that the Commonwealth could have presented but chose not to present -- are prohibited by law.

KRS 505.040 is entitled "Effects of former prosecution for different offenses[.]" Its subsection (1) provides as follows:

Although a prosecution is for a violation of a different statutory provision from a former prosecution or for a violation of the same provision but based on different facts, it is barred by the former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside, or a determination that there was insufficient evidence to warranta conviction, and the subsequent prosecution is for:

(a) An offense of which the defendant could have been convicted at the first prosecution; or

(b) An offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution or unless the offense was not consummated when the former prosecution began[.]

The Commonwealth concedes that the previously vacated adjudication of sodomy in the first degree constitutes an acquittal on that charge from which C.S. is protected from retrial. (Appellee's Brief, p. 3.) However, C.S. argues that a subsequent prosecution on a charge of sodomy in the third degree is also barred because it is a lesser-included offense. He contends that even if it is not a lesser-included offense, a subsequent prosecution for sodomy in the third degree is barred because it constitutes "an offense of which the defendant could have been convicted at the first prosecution."

C.S. also argues that the circuit court erred by holding that due to different standards, "there was not 'sufficient evidence in the record' to support the trial court's finding that the victim did not have an 'intellectual disability.'" We address that argument first.

The version of KRS 510.090(1)(a) then in effect provided that:

A person is guilty of sodomy in the third degree when: He or she engages in deviate sexual intercourse with another person who is incapable of consent because he or she is an individual with an intellectual disability[.]³

KRS 510.010(4) defines an "individual with an intellectual disability" as "a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B[.]"

The district court's brief, handwritten order entered on January 16, 2019, states that "Sodomy 3^rd requires incapable of consent[;] victim found competent." It appears that the district court erroneously equated the standard of capacity to consent with competency to testify. We agree with the Commonwealth that competency to testify is not dispositive of whether or not the victim has an "intellectual disability" under KRS 510.010(4). We find no error in the circuit court order vacating on this basis.

Next, we address C.S.'s argument that sodomy in the third degree is a lesser-included offense of sodomy in the first degree. "A lesser offense may be treated as a lesser-included offense if it does not require proof of a fact not requiredto prove the greater offense; if it does, the offense is simply a separate, distinct offense." Chames v. Commonwealth, 405 S.W.3d 519, 525 (Ky. App. 2012).

A defendant is put in double jeopardy when he is convicted of two crimes with identical elements, or where one is simply a lesser-included offense of the other. In such a case, the defendant has only actually committed one crime and can only endure one conviction. "[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The same test is applied under Kentucky law as well. See Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) ("Thus, we return to the Blockburger analysis.").

Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011).

As the Commonwealth notes, sodomy in the first degree requires proof of forcible compulsion⁴ whereas sodomy in the third degree does not. Sodomy in the third degree requires proof that the victim is incapable of consent because he or she is an individual with an intellectual disability as defined in KRS 510.010(4); sodomy in the first degree does not. We agree with the circuit court that sodomy in the third degree is not, therefore, a lesser-included offense of sodomy in the first degree and is not barred by the double jeopardy clause of eitherthe Fifth Amendment to the United States Constitution or Section Thirteen of the Kentucky Constitution because each offense requires proof of different facts. Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014), upon which C.S. relies, is distinguishable on its facts. See Chames, 405 S.W.3d 519 (appellant not entitled to jury instruction on second-degree sexual abuse as lesser-included offense of first-degree sexual abuse because second-degree sexual abuse requires additional facts to prove victim incapable of consent due to being intellectually disabled).

C.S. also argues that a subsequent prosecution for sodomy in the third degree is barred under KRS 505.040(1)(a) because it is "'[a]n offense of which the defendant...