IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 16, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0354-MR
CLIFFORD HOWELL APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHLEEN LAPE, JUDGE NO. 18-CR-01236
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Clifford Howell was convicted by the Kenton Circuit Court of six counts
of first-degree sexual abuse and for being a persistent felony offender. Howell
was sentenced to twenty years in prison consistent with the jury’s
recommendation and he now appeals as a matter of right. After review, we
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In 2018, sisters Michelle and Mandy1 disclosed that they were sexually
abused by their maternal grandfather, Clifford Howell, who lived with them for
a period of time. The acts took place between 2011 and 2018 when both girls
1 In his brief, Appellant Howell refers to the victims as MiS and MaS because
the victims are sisters and have the same first and last initials. The Commonwealth refers to the victims using the pseudonyms Michelle and Mandy. To protect their identities and for ease of reference, we refer to the victims as Michelle and Mandy. were under the age of 16. Michelle and Mandy discovered that they both had
been a victim of Howell’s inappropriate sexual behavior and told their mother,
who confronted Howell and kicked him out of the house. The Covington Police
Department investigated, and Michelle and Mandy were interviewed by the
Children’s Advocacy Center.
Michelle lived with her parents and four siblings, including Mandy, in a
mobile home in Elsmere, Kentucky between 2011 and 2013. Howell did not
live with them, but occasionally visited. Michelle testified that uncomfortable
and inappropriate things happened between her and Howell “quite a few times”
at the trailer. She described an incident when Howell came into her bedroom,
took off her pants, and rubbed his penis on her vagina. She believed that she
was 11 or 12 at the time. She recalled another occasion when she was alone
with Howell in the kitchen, and he pulled her pants down and rubbed his penis
on her butt. She remembered the incident because it occurred while the family
was having a cookout and believed it happened while she was a teenager.
Michelle explained that she did not disclose the incidents to anyone for a
while because she was scared and feared that no one would listen to her. A
few years later, she discovered that Mandy had similar experiences with Howell
which prompted both to come forward.
Mandy, who is two years younger than Michelle, testified about incidents
from 2013 to 2018 involving Howell when Mandy, her parents, and four
siblings, including Michelle, lived in a house in Covington, Kentucky. She
stated that when she was 13 or 14 years old, she was in Howell’s bedroom
2 when he made her pull down her pants and show him her “crotch.” During
this incident Howell masturbated and also touched his penis to her leg. Mandy
testified about a separate time when Howell touched her chest over the top of
her clothes in the kitchen.
Police organized a controlled call between Michelle and Howell. Portions
of the call were played for the jury during the trial. During the call, Michelle
told Howell that before she would agree to him moving back in with the family,
she needed to understand what happened and why he had done what he had
done. Throughout the call, Howell apologized, said he did not know why it
happened, and said it would never happen again. He promised to never do
“sex things” again to Michelle or Mandy. Although Michelle pressed, Howell
never apologized for anything more than “bad things” and “sex things.” Howell
stated, “nothing will ever happen to nobody in that house ever, never, ever
again,” and “it stops now.” Later that day, police brought Howell to the police
station where he sat for a recorded interview. At first, Howell claimed not to
know anything about the allegations. He eventually admitted to masturbating
in front of Mandy and touching Michelle’s vagina with his hand.
After a two-day jury trial, Howell was convicted of six counts of first-
degree sexual abuse and of being a persistent felony offender (PFO) in the first
degree. The trial court sentenced Howell to 20 years in prison in accordance
with the jury’s recommendation. On appeal, Howell argues that (1) the trial
court erred by denying his motion for directed verdict; (2) counts in the
indictment and corresponding jury instructions violated double jeopardy; and
3 (3) the presentence investigation (PSI) report contained inflammatory and
prejudicial information. We address each argument in turn.
ANALYSIS
I. The trial court properly denied Howell’s motion for directed verdict.
At the close of the Commonwealth’s case, Howell moved for directed
verdict as to Count 3, one count of first-degree sexual abuse. The
Commonwealth charged Howell with this count of sexual abuse based on
Michelle’s allegation that Howell touched her vagina with his hand or finger.
Defense counsel argued that Michelle did not testify to any incident where
Howell touched her vagina with his hand or finger, and that the sole evidence
that supported Count 3 was Howell’s uncorroborated confession during the
police interview. The trial court deferred its decision until the next morning
and ultimately overruled the motion. The trial court reasoned that Michelle
stated there was more than one incident with Howell and referenced Howell’s
admissions during the controlled call. The trial court also reiterated the jury’s
role as fact-finder.
Under Kentucky Rule of Criminal Procedure (RCr) 9.60, “[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.” “Although
proof beyond a reasonable doubt is necessary to convict of a criminal offense,
the proof required by RCr 9.60 to corroborate an extrajudicial confession need
not be such that, independent of the confession, would establish the corpus
delicti or Appellant's guilt beyond a reasonable doubt[.]” Blades v. 4 Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997). Therefore, proof of the
corpus delicti, i.e., that Howell committed the offense of first-degree sexual
abuse, may be established by considering his confession alongside other
evidence presented at trial.
When presented with a motion for directed verdict,
the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “On appellate
review, the test of a directed verdict is, 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.” Id. On appeal, Howell argues that
the trial court erred in failing to grant a directed verdict on the sexual abuse
charge because Howell’s uncorroborated confession was insufficient to sustain
a conviction.
At trial, Michelle explained that she lived with her family in a mobile
home/trailer in Elsmere before moving to the house in Covington. Howell lived
with the family in the Covington house but only “sometimes” visited them when
they lived in the mobile home. She provided the following testimony:
Commonwealth: Was there ever a time when something happened with your grandpa, Clifford Howell, that was uncomfortable or inappropriate, or something that happened to you?
Michelle: Um, quite a few times at the trailer and . . . 5 Commonwealth: Okay, and you talked about [the Covington house]2 and [trailer], so you’re saying the trailer. Which one of those were they?
Michelle: Um, it’s the [trailer].
Commonwealth: Okay, and you said it happened a couple of times, or more than one time?
Michelle: It happened a couple of times.
Commonwealth: Okay. I want you to think about one of those times and I’m going to ask you some questions about it.
(Emphasis added). Michelle then testified about the incident in her bedroom at
the trailer when Howell took off her pants and rubbed his penis on her vagina.
She then described a separate incident that occurred in the kitchen when
Howell pulled her pants down and rubbed his penis on her butt. Michelle
never directly stated that Howell touched her vagina with his hand. However,
Michelle did provide corroborating information by confirming that he did
inappropriate things “quite a few times,” which means more often than her
specific allegations and “at the trailer,” which provides supporting evidence of
location.
In Banks v. Commonwealth, 313 S.W.3d 567, 569 (Ky. 2010), defendant
Banks admitted to committing sexual acts upon his two minor daughters for a
three-year period. Banks estimated this occurred about six times with each
daughter and he was ultimately indicted on twelve counts of first-degree
sodomy, among other charges. Id. After the Commonwealth dismissed two of
2 We omit the specific addresses of the residences for anonymity. 6 the sodomy charges, the jury returned guilty verdicts on nine of the ten
remaining counts of sodomy. Id. at 569-70.
On appeal, Banks argued that the Commonwealth presented insufficient
evidence to convict him of nine counts of sodomy. Id. at 570. According to the
Court’s summary of the evidence, T.B., Banks’s daughter and victim, testified
at trial and described incidents with her father but only explicitly recounted
sodomy on two occasions. Id at 570-71. C.B., Banks’s other daughter and
victim, testified that she witnessed “something happen” between T.B. and her
father. Id. She also stated that things happened between her and her father
but could not remember how many times. Id. C.B. testified about two types of
sodomy she recalled but could not remember how many times those things
happened. Id.
The Court held that the evidence was sufficient to submit the case to the
jury:
Pursuant to Benham, we assume Banks's confession to be true; that is that he committed acts of sodomy against each of his daughters as admitted in his statement to police. Banks confessed that he did this on about six occasions against each daughter, and from this we draw the inference that he did, in fact, commit a total of twelve acts of sodomy against his children during the three year period from March 2002 to March 2005. C.B. and T.B. corroborated Banks's confession with their testimony of multiple instances of abuse. Upon drawing all inferences from the evidence in favor of the Commonwealth, we cannot conclude that it was unreasonable for the jury to have found the defendant guilty of nine counts of sodomy.
Id. (emphasis added).
7 Like in Banks, Michelle testified that uncomfortable and inappropriate
things happened between her and Howell “quite a few times” when she lived in
the trailer. Although her testimony did not describe each individual instance of
the sex crimes committed against her, she indicated that there was more than
one instance. In addition to Howell’s statement to police about touching
Michelle with his hand, the Commonwealth also presented portions of the
controlled call with Michelle, during which Howell admitted to “sex things”
while apologizing for what he did. Mandy also testified about the inappropriate
encounters she had with Howell. The victims’ testimony, taken as a whole,
established Howell’s opportunity to commit the crimes, i.e., being at the trailer
on multiple occasions and living with the family in the Covington house, and a
pattern of behavior.
We recognize that the evidence presented by the Commonwealth was not
conclusive. But the corroborative evidence required by RCr 9.60 does not have
to rise to the level of proof beyond a reasonable doubt. Lofthouse v.
Commonwealth, 13 S.W.3d 236, 242 (Ky. 2000) (citing Blades, 957 S.W.2d at
250). “[E]ven if the circumstantial evidence in this case standing alone would
not suffice to prove guilt beyond a reasonable doubt, it sufficed to corroborate
Appellant's confession; and the circumstantial evidence and the confession
considered together constituted sufficient proof to take the case to the jury.”
Blades, 957 S.W.3d at 250. The Commonwealth presented sufficient evidence
at trial to allow a reasonable juror to find guilt, particularly in light of the trial
court’s duty to draw all fair and reasonable inferences in favor of the
8 Commonwealth and assume that the evidence is true. Benham, 816 S.W.2d at
187. Any questions as to the credibility and weight given to the testimony are
reserved for the jury. Id. Upon drawing all inferences from the evidence in
favor of the Commonwealth, we cannot conclude that it was unreasonable for
the jury to have found Howell guilty of sexual abuse as described in Count 3.
II. The jury instructions did not violate double jeopardy.
Mandy testified about an incident when she lived in the Covington house
with her parents, siblings, and Howell. She and her siblings shared a bedroom
upstairs, Howell also had a bedroom upstairs, and her parents slept
downstairs. While Mandy was in Howell’s room he directed her to remove her
pants, masturbated in front of her, and ejaculated on her leg. The
Commonwealth asked her about another incident that occurred in the kitchen,
then returned to the bedroom incident. Mandy testified that during that
incident, Howell touched his penis to her leg.
Based on these acts, Howell was charged with two counts of first-degree
sexual abuse—one count for masturbating in front of Mandy and one count for
Howell touching his penis to her leg. At the close of the Commonwealth’s case-
in-chief, Howell argued that the act touching his penis to Mandy’s leg was
incidental to the masturbation and therefore the acts merged. Since there were
not two separate acts, the two charges violated double jeopardy. The
Commonwealth contended that the act of masturbation was separate and
distinct from the act of touching with a penis. The trial court overruled the
motion for directed verdict and determined that Howell touching his penis to
9 Mandy’s leg was not incidental to masturbation and did not violate double
jeopardy.
The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 13 of the Kentucky Constitution preclude
multiple convictions for the same offense. To determine whether a double
jeopardy violation has occurred, Kentucky courts use the test outlined in
Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether
each charge requires proof of a fact that the other does not.3 We review
Howell’s acts under the framework of the sexual abuse statute to determine
whether the convictions violate double jeopardy.
KRS 510.110 defines first-degree sexual abuse as follows:
(1) A person is guilty of sexual abuse in the first degree when: .... (c) Being twenty-one (21) years old or more, he or she: 1. Subjects another person who is less than sixteen (16) years old to sexual contact; 2. Engages in masturbation in the presence of another person who is less than sixteen (16) years old and knows or has reason to know the other person is present; . . . .
3 KRS 505.020-060 contains Kentucky’s statutory codification of the Blockburger test and provides that “[w]hen a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense.” KRS 505.020(1). However, the defendant cannot be convicted of both offenses if “the offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.” KRS 505.020(1)(c). 10 Sexual contact is defined as “any touching of the sexual or other intimate
parts of a person done for the purpose of gratifying the sexual desire of either
party.” KRS 510.010(7).
Each jury instruction at issue defined different conduct. Count 5,
described in Instruction 12, implicated KRS 510.010(1)(c)(1) and stated:
You will find the Defendant, Clifford E. Howell, guilty of Sexual Abuse in the First Degree under this Instruction and under Count 5 of the Indictment if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this County on or between February 18, 2013 and January 31, 2018, and before the finding of the Indictment herein, Clifford E. Howell subjected [Mandy] to sexual contact when he rubbed his penis on her leg, in the Defendant’s bedroom at [the Covington house]; AND B. That at the time of such occurrence, the Defendant was 21 years of age or older and [Mandy] was less than 16 years of age.
Count 7, described in Instruction 14, implicated KRS 510.010(1)(c)(2) and
stated:
You will find the Defendant, Clifford E. Howell, guilty of Sexual Abuse in the First Degree under this Instruction and under Count 7 of the Indictment if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this County on or between February 18, 2013 and January 31, 2018, and before the finding of the Indictment herein, Clifford E. Howell masturbated in the presence of [Mandy] and he knew or had reason to know she was present; AND B. That at the time of such occurrence, the Defendant was 21 years of age or older and [Mandy] was less than 16 years of age.
11 Howell relies on portions of Mandy’s testimony about the masturbation
incident. After Mandy described the incident, the Commonwealth asked
whether anything else happened to which Mandy responded “no.” The
Commonwealth asked if there was a time when Howell’s penis touched any
part of her body and Mandy responded that his penis touched her leg. The
Commonwealth questioned whether that happened at the same time as the
masturbation, and she confirmed that it did. The Commonwealth asked what
Howell did when his penis touched her leg and she explained that Howell was
moving it up and down. Based on this testimony, Howell concludes that
touching his penis to Mandy’s leg was incidental and that the masturbation
and sexual contact coincided, constituting a single act of sexual gratification.
In support of his argument, Howell cites Bills v. Commonwealth, 851
S.W.2d 466 (Ky. 1993).4 In Bills, the Court described “sexual contact” and
stated that the touching “must be done for the purpose of sexual gratification.”
4 We note that Howell also cites Hamilton v. Commonwealth, 659 S.W.2d 201 (Ky. 1983) in support of his argument. The Hamilton Court determined that the defendant’s convictions for rape and incest resulting from a single act of sexual intercourse with his daughter violated double jeopardy because the proof used to convict the defendant of rape was the same evidence used to support the incest conviction. 659 S.W.2d at 202. The Court reasoned that:
When we view the present case, we find that the proof utilized to convict the appellant of rape was that he had sexual intercourse with a ten-year- old child, who was, in actuality, his daughter. The only additional fact— the relationship of father/daughter—was required in the incest charge. Thus, in a sense, the additional fact was not present in “each” case, as required by Blockburger, but in only one case.
While this case appears instructive, Hamilton was overruled by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996). The Court noted that Hamilton was “decided contrary to Blockburger and KRS 505.020.” Id. 12 Id. at 471. The Court ultimately held that an act constituting sexual abuse for
touching the victim’s intimate parts while removing her clothing did not merge
into an ensuing act of sodomy: “[t]he removal of the victim’s clothing was
unnecessary in regard to the sex act involving oral sodomy. The two acts did
not merge even though they may have occurred close in time.” Id. at 472.
Even though the sexual contact and masturbation occurred during the same
encounter with Mandy, during the same course of sexual misconduct, they are
separate and distinct acts, as plainly outlined in KRS 510.110.
Under KRS 510.110, a defendant can be guilty of first-degree sexual
abuse for subjecting another person to “sexual contact,” i.e., touching the
sexual/intimate parts of a person for the purpose of sexual gratification, or for
engaging in masturbation in the presence of another person who is less than
sixteen years old. Each subsection defines different conduct. Howell could
have been found guilty of committing first-degree sexual abuse in two different
ways: (1) subjecting Mandy to sexual contact; or (2) masturbating in her
presence. Howell could have violated KRS 510.110(1)(c)(1) by only touching
Mandy’s leg. He also could have violated KRS 510.110(1)(c)(2) by engaging in
masturbation in her presence. Simply put, first-degree sexual abuse under
KRS 510.110(1)(c)(1) and (2) each require elements that the other does not. In
enacting this statute and creating separate subsections, the legislature
expressed its intent to deter and punish two types of acts. Mandy’s testimony
provided sufficient evidence for the two distinguishable types of first-degree
sexual abuse, and the instructions sufficiently distinguished one instance of
13 sexual abuse (masturbation) from a different instance of sexual abuse (the
touching of Mandy’s leg with the penis). Therefore, no constitutional or
statutory double jeopardy violations occurred.
III. No error resulted from the inclusion of all information in the presentence investigation report.
Howell challenges the trial court’s use of the presentence investigation
(PSI) report and its contents. On October 7, 2020, the trial court scheduled
Howell’s sentencing hearing for December 8, 2020. At the sentencing hearing,
defense counsel objected to the inclusion of allegations relating to a third
grandchild that Howell was never criminally charged with, and Mandy and
Michelle’s allegations which were either expressly controverted by trial
testimony or for which the jury returned a not guilty verdict or convicted
Howell of a lesser included charge. The trial court continued the sentencing
hearing and allowed the parties until February 18, 2021 to submit written
argument on the issue. At a February 22, 2021 hearing, the trial court again
continued the sentencing hearing because a final jury trial order setting out the
convictions had not been entered for consideration in generating the PSI report.
At Howell’s final sentencing hearing on April 26, 2021, the trial court
overruled Howell’s motion to further amend the PSI report, noting Howell’s
multiple opportunities to controvert the PSI report through written and oral
argument. The trial court noted the broad discretion that Probation & Parole
has in what information they consider when generating the PSI report and the
trial court sentenced Howell to 20 years in prison in accordance with the jury’s
14 recommendation. On appeal, Howell argues that he was denied a fair
opportunity to controvert the factual inconsistencies and amend the PSI report.
KRS 532.050 requires a court to order a PSI prior to imposing a sentence
for conviction of a felony. It also requires a court to order a Sex Offender
Evaluation report prior to imposing a sentence on a defendant convicted of a
sex crime, as defined by KRS 17.500. Both reports shall be used by the court
in determining the appropriate sentence, and the court is required to review
the contents of the PSI with the defendant at sentencing. KRS 532.050(6). If
the defendant disputes any information contained in the PSI report, the court
can hear evidence and make appropriate findings. Id. If requested by the
defendant, the court must also afford a “fair opportunity and a reasonable
period of time” for the defendant to controvert the factual contents and
conclusions contained in the PSI report. Id.
Here, a PSI report was prepared by a probation officer and reviewed by
the trial court prior to sentencing. The trial court further ordered and reviewed
a sex offender evaluation. The PSI report is not only reviewed and considered
by a trial court prior to sentencing as required by KRS 532.050, but also
follows a criminal defendant for use by the Parole Board in determination of
parole eligibility. The Parole Board must obtain and consider all “pertinent
information” regarding each prisoner, which includes “the results of his or her
most recent risk and needs assessment, his or her criminal record, his or her
conduct, employment, and the reports of physical and mental examinations
15 that have been made.” KRS 439.340(1) and (2). Given this requirement, the
parole board has discretion to consider various types of evidence.5
Howell was provided a copy of the PSI report and ample opportunity to
controvert the information it contained and argue that it improperly included
information and contained inaccuracies—twice during hearings and once
through written argument. The trial court considered his arguments on
multiple occasions. Further, Howell did not challenge the accuracy of any of
the allegations by his third grandchild but instead objected to inclusion of that
information. We also emphasize that the trial court sentenced Howell in
accordance with the jury’s recommended sentence. Howell was afforded his
statutory rights as prescribed by KRS 532.050 and the trial court did not err in
denying his request to further amend the report.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Kenton Circuit Court.
All sitting. All concur.
5 In Aaron v. Commonwealth, 810 S.W.2d 60, 62 (Ky. App. 1991), the Court of Appeals explained that, generally, a Parole Board has “broad discretion in hearing evidence, including dismissed counts of an indictment, hearsay evidence, and allegations of criminal activity for which the prisoner has not even been charged.” (citing Hackett v. U.S. Parole Comm’n, 851 F.2d 127, 131 (6th Cir., 1987) and Maddox v. Parole Comm’n, 821 F.2d 997, 999 (5th Cir., 1987)). The federal cases cited by the Court of Appeals involved the United States Parole Commission.
16 COUNSEL FOR APPELLANT:
Shannon Dupree Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Mark D. Barry Assistant Attorney General