IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0384-MR
EDWIN KNOX APPELLANT
ON APPEAL FROM HICKMAN CIRCUIT COURT V. HONORABLE TIMOTHY A. LANGFORD, JUDGE NO. 18-CR-00020
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING IN PART
Edwin Knox appeals from his convictions by the Hickman Circuit Court
after a jury trial on first-degree rape, first-degree sodomy, first-degree unlawful
transaction with a minor under sixteen (UTM), and two counts of first-degree
sexual abuse of a minor under sixteen, resulting in a total sentence of thirty
years. On appeal, Knox argues the trial court committed palpable error by
utilizing deficient jury instructions which allowed for double jeopardy
violations, impermissible bolstering testimony, and cumulative error. We agree
that double jeopardy violations occurred in Knox’s trial.
The jury instructions in Knox’s trial were deficient in failing to identify
which particular act aligned with each charged count and failing to identify, or
recognize, lesser included offenses in the instructions. The risk of double
jeopardy errors inherent in the instructions is obvious and otherwise palpable. Under the circumstance of this case, we have determined that Knox’s
convictions for UTM and sexual abuse must be reversed. However, the rape
and sodomy convictions and their concurrent twenty year sentences remain
valid and we affirm them.
I. FACTUAL AND LEGAL BACKGROUND
The mother in this matter (Mother) 1 has four daughters. Three of these
daughters. Kelli, Kimberly, and Janice, 2 would later make allegations against
Knox. Kelli and Kimberly are the oldest of the girls and are twins. The twins
were twelve years old but “almost thirteen,” in April 2017, when Mother moved
her family into Knox’s residence. Mother had met Knox when he was working
as a physical therapist treating Mother’s sister. Knox is not related to any of
the children.
In January 2018, Mother and her daughters moved out of Knox’s
residence after police responded to an altercation between Mother and Knox at
1 The mother of these four children will only be referenced as “Mother” to avoid
risk of identifying any of her four children. 2 The victims in this case are all sisters and were each minors when these
crimes allegedly occurred. Significant confusion arose during the prosecution of this action because the twin sisters shared the same initials. The trial court would eventually refer to the twins by adding both the second and third letters of each of their first names which lessened the confusion but made their first names clearly known. Repeating the use of those initials within this opinion would unnecessarily expose the minors’ identities. We have therefore adopted pseudonyms for the sisters and refer to the twin who is the primary focus of this appeal as “Kelli” “Ke.B” and/or “Kel.B.” and her twin sister as “Kimberly,” “KiB,” and/or “Kim.B” with their younger sister being “Janice” or “J.B.” In matters such as this where using the initials of child victims creates, or may cause confusion, we encourage courts to consider the use of pseudonyms like we have utilized here to distinguish twin girls with the same initials. In other matters using clear identifiers such as “Twelve-Year-Old Girl” or “Seven-Year-Old Boy,” may be more appropriate.
2 the residence. According to Mother, after her family had left the residence Knox
asked to see, or offered to watch, all four daughters but only Kelli wanted to
visit him. Kelli however testified that her mother forced her, but none of her
sisters, to visit Knox. The number of times Kelli visited Knox was uncertain.
Approximately six months after the family left Knox’s residence, Kelli
informed her grandmother and aunt that she had been sexually abused by
Knox both when she was living with Knox and afterward during visits. Mother
testified that she had no idea that Knox had committed any inappropriate acts
with any of her children. At trial, Kimberly stated that she had never informed
her mother about any abuse because she had been “taken advantage of” prior
to living with Knox and had told her mother, but that her mother “did nothing.”
After Kelli came forward, Kimberly later informed authorities that she too had
been violated once by Knox when the family was living with him. On one
occasion Knox had tried to grab the inside of Kimberly’s thigh, and then one of
her breasts, before Kimberly pushed him away. Although she refused to testify
at either of Knox’s subsequent trials, their sister Janice made an allegation
against Knox as well.
The confusing facts—there were three minor victims, two of the victims
had the same initials and were twins, there were two different time periods
during which crimes allegedly occurred, there were multiple and varying
criminal acts alleged, and the alleged sexual acts could each be prosecuted
under more than one criminal statute—led to an array of inconsistent charged
offenses. This plagued the criminal action throughout Knox’s prosecution.
3 The matter was investigated by the Kentucky State Police and a criminal
complaint was filed on August 30, 2018, alleging there were two victims (not
identified) of Knox’s abuse. One victim (presumably Kelli) reported she was
twelve years old when: (1) Knox forcibly pulled down her pants without her
consent and “penetrated her vagina with the head of his penis”; (2) “she was
told to put her mouth on the penis of the defendant”; and (3) “over four more
incidents where the defendant touched her vagina and/or she was told to grab
the defendant’s penis for sexual gratification.” The second victim (presumably
Janice) reported that when she was eleven years old, she was awakened one
night by Knox pulling at her legs and that he “put his hand under her pants
but over her underwear.” A uniform citation was generated and filed on
September 4, 2018, with four charges: (1) Rape, first-degree; (2) Sodomy, first-
degree; (3) Sexual Abuse,
first-degree; and (4) Sexual Abuse, first-degree, victim under twelve years of
age.
However, the Hickman County grand jury would return a nine-count
indictment against Knox. The two victims in this indictment were now
identified as “[K.B.]” (initials shared by Kelli and Kimberly) and “[J.B.]” The
indictment incorporated the originally charged offenses of sodomy and rape but
now there were four counts of sexual abuse regarding K.B., one count of sexual
abuse regarding Janice, and two counts of UTM, one count each for K.B. and
Janice.
4 At this juncture there were seven charged offenses relating to K.B.
(presumably Kelli) and two regarding Janice. All counts stated that the covered
time period was between the “1st day of September 2016 and the 31st day of
May 2018” which covered both the period when the sisters lived with Knox and
the subsequent period when only Kelli visited him.
On May 21, 2019, after two scheduled trials had been continued, the
Commonwealth moved to convene a special grand jury stating that during
recent preparations for trial, it was discovered that “a third victim, [K.B.] who is
the twin sister of [K.B.]” had disclosed sexual abuse.
On July 23, 2019, the grand jury returned a “new” indictment which
then identified the victims as “[J.B.],” and (using three initials now) “[Ke.B.]”
and “[Ki.B.]” to distinguish the twins from one another. 3 Even though Kimberly
had been added as a victim, this indictment again had nine counts. This
indictment now charged Knox with rape, sodomy, UTM, and three counts of
sexual abuse regarding Kelli (six charged offenses now instead of seven); one
count of sexual abuse regarding Kimberly; and one count each of sexual abuse
and UTM regarding Janice.
Problematically, both indictments only couched the offenses in terms of
“sexual intercourse,” “deviant sexual intercourse,” “sexual contact” or “illegal
sexual activity” without any description whatsoever of what Knox had
3 The trial court would ultimately use four initials to identify each twin and we
follow suit substituting “[Kel.B.]” for Kelli and “[Kim.B.]” for Kimberly where needed to more closely mirror the record.
5 specifically done to commit each offense during the nine-month period covered
in the indictment. This lack of specificity would never be remedied.
Mother was also charged with human trafficking and endangering the
welfare of a child. Both Knox and Mother were tried as co-defendants by a jury
on January 24, 2020. Janice did not testify, and a directed verdict was granted
regarding the two counts concerning her. The jury ultimately deadlocked, and a
mistrial was declared.
Prior to the second trial, Mother pled guilty to two counts of wanton
endangerment and testified in Knox’s second trial which began on April 5,
2022. Immediately prior to the trial commencing, a conference was held in
chambers and there was discussion about the as-yet to be completed jury
instructions and the initials that would be used for the minor victims. The trial
judge also recognized risks associated with the multiple charges and multiple
victims and advised both counsel that there needed to be clarity in the final
instructions stating:
We just need to be sure they [the jury] understand who they are talking about and there may be some differentiation like in the green room, in the bathroom, in the dining room, I’ve forgotten the facts of the case in terms of where it happened, but whatever we can put so it’s clear that the jury is making a decision on that particular charge.
That advice went unheeded by the Commonwealth and Knox’s counsel.
At the conclusion of the evidence, the trial court granted a directed
verdict on the two counts (UTM and sexual abuse) related to Janice because
she refused to testify.
6 The jury was erroneously given instructions for UTM regarding Kimberly
even though Knox had not been indicted for such. The jury acquitted Knox of
sexual abuse (the actual indicted offense) regarding Kimberly but convicted
him of UTM under the instruction given to them in error. Only after the trial
did the parties recognize this error. Subsequently, the trial court “dismissed”
that conviction.
With the charges regarding both Janice and Kimberly all being resolved
in Knox’s favor, we are able to focus on those convictions related to Kelli.
Regarding Kelli, the jury convicted Knox of: (1) rape in the first-degree
(Kentucky Revised Statutes (KRS) 510.040); (2) sodomy in the first-degree (KRS
510.070); (3) UTM under the age of sixteen (KRS 530.064(2)(b)); (4) one count of
sexual abuse in the first-degree of a minor under the age of sixteen (KRS
510.110(3)(c)(1)) for an act occurring while Kelli was residing with Knox; and (5)
one count of sexual abuse in the first-degree of a minor under the age of
sixteen (KRS 510.110(3)(c)(1)) for an act occurring while Kelli was visiting Knox
after her family had left his residence.
The trial court sentenced Knox in accordance with the jury’s
recommendation to a total of thirty years in prison consisting of twenty-year
concurrent sentences for each of the three Class B felony convictions (rape,
sodomy, and UTM) and five-year consecutive sentences for the two Class D
felony convictions for sexual abuse. Knox appeals to this Court as a matter of
right.
7 II. LEGAL ANALYSIS
Knox’s arguments are: (1) a double jeopardy violation, couched in terms
of “inconsistent findings of fact,” occurred relative to his rape, sodomy and
unlawful transaction with a minor convictions; (2) a double jeopardy violation
occurred regarding his rape, sodomy and sexual abuse convictions; (3) another
double jeopardy violation occurred because sexual abuse is a lesser included
offense of unlawful transaction with a minor; (4) Mother impermissibly
bolstered her daughters’ testimony; and (5) cumulative error rendered the trial
fundamentally unfair.
None of these alleged errors were preserved by a contemporaneous
objection. Consequently, we may only afford relief to Knox upon satisfaction of
the rigorous palpable error standard found in Kentucky Rules of Criminal
Procedure (RCr) 10.26, which states: “A palpable error which affects the
substantial rights of a party may be considered . . . by an appellate court on
appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice
has resulted from the error.”
As summarized in Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.
2006):
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error[.] A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different 8 without the error. If not, the error cannot be palpable.
(Internal citations and quotation marks omitted).
In Johnson v. Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023), a matter
concerning unanimity errors, we most recently phrased our palpable error
standard of review as follows:
Only if, upon review, a court can conclude the error is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process, will reversal be warranted. It should be so egregious that it jumps off the page . . . and cries out for relief.
When presented with jury instructions lacking specificity, we have
repeatedly held “it is now settled that a trial court errs in a case involving
multiple charges if its instructions to the jury fail to factually differentiate
between the separate offenses according to the evidence.” Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009). If jury instructions do not
include factual differentiation between the charges, this constitutes reversible
error, even if the error is unpreserved. Id. See also Harp v. Commonwealth, 266
S.W.3d 813 (Ky. 2008); Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008)
(overruled on other grounds by Harp, 266 S.W.3d at 813); and Miller v.
Commonwealth, 77 S.W.3d 566 (Ky. 2002).
This case demonstrates circumstances where, even without objections
being made at trial, otherwise potentially reversible errors rise to the level of
palpable error.
9 A. Were Knox’s Convictions the Result of Palpable Double Jeopardy Errors Caused by the Jury Instructions? – Unpreserved.
We consider the first three issues raised by Knox together as they all
ultimately relate to the language, and lack thereof, contained in the jury
instructions and the risk of double jeopardy errors attendant thereto.
In Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002), we stated
that regardless of whether such issues were viewed as:
[O]nes of insufficient evidence, or double jeopardy, or denials of a unanimous verdict, when multiple offenses are charged in a single indictment, the Commonwealth must introduce evidence sufficient to prove each offense and to differentiate each count from the others, and the jury must be separately instructed on each charged offense.
(Emphasis added).
We have stated previously in a case presenting an unpreserved error
regarding a unanimous jury, that courts must “plumb the depths of the
proceeding” and “scrutinize the factual idiosyncrasies of the individual case,”
and that is what we are compelled to do here. Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006). An analysis of the instructions in this case will reveal
how failures to differentiate alleged acts from charged offenses will lead to
double jeopardy violations and palpable error.
10 1. Kelli’s Testimony
Kelli testified to Knox committing the following acts: (1) while she was
living with Knox he came into her room, lifted her blouse, and touched her
breast; (2) once, when the rest of her family was attending a soccer game, he
pulled her pants down and unsuccessfully attempted to put his penis into her
vagina and told her she needed to “stretch it out;” (3) later on the same night
he made her do “the 69” and perform oral sex on him; (4) prior to her family
leaving Knox’s residence, she also stated that one time he put a cream on her
vagina which burned; (5) during her subsequent visits to Knox, she testified
that he came into the bathroom while she was bathing and refused to leave
after she asked him to do so; and (6) Knox had her give him oral sex an
unknown number of times during these later visits to his home. There were no
witnesses to any of these encounters and no physical evidence. The difficulty
moving forward will be attempting to positively “match” each of these
allegations to any of Knox’s convictions.
2. The Jury Instructions and Closing Arguments
The instructions tendered to the jury were as follows:
a. Rape, First-Degree:
The instruction for rape in the first-degree (Instruction No. 8), stated:
You, the Jury, will find the Defendant, Edwin A. Knox, guilty under this Instruction 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 the 1st day of April, 2017 and the 31st day of January, 2018, and before the finding of the Indictment herein, the Defendant,
11 Edwin A. Knox, engaged in sexual intercourse with [Kel.B.];
AND
B. That the Defendant, Edwin A. Knox, did so by forcible compulsion.
The date range of April 1, 2017, to January 21, 2018, covered only the
period of time when Kelli was residing in Knox’s home with her mother and
sisters. The language in this instruction comports with KRS 510.040(1)(a) for
the offense of rape in the first-degree of a victim aged twelve or older. Neither
the term “sexual intercourse” nor “forcible compulsion” was defined within
Instruction No. 8. All definitions were combined on one page preceding each
criminal count in Instruction No. 5.
In conformity with KRS 510.010(8), the definition of sexual intercourse in
Instruction No. 5 was given as:
Mean[ing] sexual intercourse in its ordinary sense and includes penetration of the sex organs of one person by any body part or a foreign object manipulated by another person. “Sexual intercourse” occurs upon any penetration, however slight; emission is not required. Sexual intercourse does not include penetration of the sex organ by any body part or a foreign object in the course of the performance of generally recognized health- care practices.
Instruction No. 5 also gave a definition of forcible compulsion in accord
with KRS 510.010(2) as “[m]ean[ing] physical force or threat of physical force,
express or implied, which places a person in fear of immediate death or
physical injury to self or another person. Physical resistance on the part of the
12 person subjected to forcible compulsion is not necessary to meet this
definition.”
b. Sodomy, First-Degree:
The instruction for sodomy in the first-degree stated:
You, the Jury, will find the Defendant, Edwin A. Knox, guilty of First-Degree Sodomy under this Instruction 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 the 1st day of April, 2017 and the 31st day of January, 2018, and before the finding of the Indictment herein, the Defendant, Edwin A. Knox, engaged in deviate sexual intercourse with [Kel.B.];
B. That the Defendant, Edwin A. Knox, did so by forcible compulsion.
The only substantive difference in the rape and sodomy instructions was
the addition of the term “deviate.” Like the rape charge, neither deviate sexual
intercourse nor forcible compulsion were defined within the stand-alone
instruction. We know that the jury was, at least temporarily, confused by this
instruction because it sent a note to the trial court during deliberations asking
“What is sodomy[?]”
Deviate Sexual Intercourse was defined in Instruction No. 5 in accord
with KRS 510.010(1) as:
Mean[ing] any act of sexual gratification involving the sex organs of one person and the mouth or anus of another; or penetration of the anus of one person by any body part or a foreign object manipulated by another person. “Deviate sexual intercourse” 13 does not include penetration of the anus by any body part or a foreign object in the course of the performance of generally recognized health-care practices[.]
c. Unlawful Transaction with a Minor, First-Degree:
Unlawful transaction with a minor was set forth under Jury Instruction
No. 12. Unlike the rape and sodomy instructions, this instruction gave a date
range which incorporated not only the time period of Kelli’s residence with
Knox, but also the date range of her visits to him. The instruction read:
You will find the Defendant, Edwin A. Knox, guilty under this Instruction 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 the 1st day of April, 2017 and the 31st day of May, 2018, and before the finding of the Indictment herein, the Defendant, Edwin A. Knox, knowingly induced, assisted or caused the minor, [Kel.B.] to engage in illegal sexual acts;
B. That the victim, [Kel.B.] was less than 16 years of age,
C. That the Defendant, Edwin A. Knox, knew the minor, [Kel.B.] was less than 16 years of age.
The definition of “illegal sexual activity” was given by the trial court
separately in Instruction No. 5 as “[a]ny and all consensual sexual contact
with a minor under the age of Sixteen (16).” (Emphasis added).
d. Sexual Abuse, First-Degree:
The two Class D felony counts of sexual abuse in the first-degree
(Instructions No. 10 and 11) were distinguished in the jury instructions by 14 language regarding when (either during Kelli’s residency with Knox or during
her visits to him) unlawful sexual contact allegedly occurred.
Instruction No. 10 stated:
You, the Jury, will find the Defendant, Edwin A. Knox, guilty under this Instruction 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 the 1st day of April, 2017 and the 31st day of January, 2018, before the finding of the Indictment herein, the Defendant, Edwin A. Knox, subjected [Kel.B.] to sexual contact (while residing in the Defendant’s home);
B. That at the time of such occurrence, [Kel.B.] was less than 16 years of age;
AND That at the time of the occurrence of (sic) the Defendant, Edwin A. Knox, was 21 years of age or older.
(Emphasis added, both bolded and underlined).
Instruction No. 11 was identical except for giving the date range of
“between the 21st day of January, 2018 and the 31st day of May, 2018” with
the additional language of “(while [Kel.B.] was visiting the home)[.]”
Sexual contact was defined in Instruction No. 5 as “any touching of the
sexual or other intimate parts of a person do (sic) for purpose of gratifying the
sexual desire of either party.” (Emphasis added). See KRS 510.010(7).
During its closing argument, the Commonwealth did not review Kelli’s
testimony regarding the criminal sexual acts she testified occurred. Instead,
the Commonwealth focused on rebutting Knox’s claim that he had a parental-
like relationship with the girls, countering that he took these actions to groom 15 the girls. Therefore, there was not even an attempt to clarify which criminal
sexual act matched up with each indicted offense. 4
No attempt was made by the Commonwealth in its closing argument to
clarify which criminal sexual act matched up to each of the charged offenses.
The Commonwealth also did not state which of the acts Kelli testified to were
the crimes for which Knox had been indicted.
3. Double Jeopardy
The Double Jeopardy Clause contained in the Fifth Amendment to the
United States Constitution guarantees that no person shall “be subject for the
same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V.
Similarly, Section 13 of the Kentucky Constitution ensures no person shall “be
twice put in jeopardy of his life or limb” for the same offense.
Unpreserved double jeopardy violations are subject in Kentucky to
palpable error review, but we have long held convictions tainted by double
jeopardy cannot stand. Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky.
2009). A double jeopardy violation satisfies the palpable error rule because it
necessarily requires a different result. Id. In other words, a conviction tainted
by double jeopardy results in manifest injustice. Id.
4 We note that the Commonwealth acting to clarify jury instructions in its
closing argument cannot cure a properly preserved objection regarding instructional errors. Harp v. Commonwealth, 266 S.W.3d 813, 820 (Ky. 2008). However, such clarification could potentially help to render such an error harmless. See generally Miller v. Commonwealth, 283 S.W.3d 690, 695-96 (Ky. 2009) (quoting Harp, 266 S.W.3d at 818) (explaining that a failure to differentiate which act each jury instruction relates to can constitute palpable error if the Commonwealth has failed to meet its burden to establish that “no prejudice resulted from the error”).
16 In conducting our double jeopardy review, we must look to see whether
or not the jury did, or likely could have, convicted Knox of two separate
criminal offenses based on one criminal act. For instance, did the jury
determine that when Knox committed the singular act of attempting to put his
penis into Kelli’s vagina, that he was guilty of rape (prohibiting “sexual
intercourse”) and sexual abuse (prohibiting “sexual abuse”) and unlawful
transaction with a minor (prohibiting “illegal sexual activity”)?
Further complicating our analysis further is the fact that there was a
failure of the instructions to differentiate between the element of “forcible
compulsion” required for both the rape and sodomy convictions, 5 which is not
an element of the crimes of UTM as prosecuted here (criminalizing any
otherwise consensual, albeit unlawful, sexual acts 6 with persons under the age
of sixteen) or sexual abuse. Under the instructions given this jury for UTM and
sexual abuse, any sexual contact was sufficient to convict Knox only because
Kelli was under the age of sixteen.
5 KRS 510.010(2):
“Forcible compulsion” means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition. 6 KRS 510.010 does not offer a definition for “illegal sexual activity” but we have
determined that to complete the offense of unlawful transaction with a minor in the first-degree, the minor must consent to and actively participate in the activity. The term “consent” as used here, does not mean legal consent, but only means to willingly engage in the activity. See Combs v. Commonwealth, 198 S.W.3d 574, 578 (Ky. 2006), overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020).
17 Knox points out the inconsistency of the jury making “inconsistent
findings of fact” when determining Knox to be guilty of both “forcibly” raping
and sodomizing Kelli but also engaging in other—or possibly the same—
“consensual” sex acts with Kelli. It is important to note here that, assuming the
jury followed the instructions as tendered, it decided that “forcible compulsion”
existed regarding the rape and sodomy charges, but then curiously determined
that such forcible compulsion did not occur regarding either the UTM charge
(“all consensual contact”) for which they convicted Knox, and was unnecessary
(since it was not stated) for the two sexual abuse convictions (“any touching of
the sexual or other intimate parts . . .”).
Additionally, the instructions do not actually distinguish between UTM (a
Class B felony) and sexual abuse (a Class D felony). 7 By not specifying which
act Knox was being accused of, Knox was again susceptible of being convicted
of both charges based on the exact same event including those actions for
which the jury had already convicted Knox of rape or sodomy. Under sexual
abuse, Knox could be found guilty of “sexual contact” with Kelli because she
was under sixteen, while under UTM he could be found guilty of “illegal sex
acts” which are statutorily defined as illegal only because she was under
sixteen.
7 We have previously discussed the “overlap” between Kentucky’s UTM and
sexual abuse statutes and stated that, “[t]he General Assembly has recognized that complexity by defining several sex offenses broadly and by allowing some degree of overlap among them. Where conduct implicates more than one offense, fitting the charge (if any) to the conduct is a matter of prosecutorial and grand jury discretion. Hale v. Commonwealth, 396 S.W.3d 841, 849 (Ky. 2013).
18 The fact that sexual abuse in the first-degree can be a lesser included
offense to both rape in the first-degree 8 and sodomy in the first-degree 9
highlights the general similarities between the elements of the various sexual
crimes and the Commonwealth’s concomitant duty to distinguish between the
specific facts it alleges prove each of the similar crimes charged.
The jury, as instructed, could not have known whether the UTM and
sexual abuse instructions pertained to their own set of unique alleged facts and
which act was matched up to each instruction, or were “alternative” or
“additional” charges of rape and sodomy for which they could also convict
Knox.
The instructions, couched in general terms of “sexual contact” without
differentiating the specific act alleged for each count of UTM and sexual abuse
from the “other” acts which the jury found to constitute rape and sodomy,
permitted the jury to find Knox guilty twice for the same act, e.g., one act
constituting rape and same act also constituting sexual abuse and/or UTM.
See Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky.1993). The
instructions furthermore do not advise the jury that one singular act cannot be
8 “If there is evidence that sexual intercourse did not occur, an instruction on
First-Degree Sexual Abuse should be given as a lesser included offense.” 1 William S. Cooper & Donald P. Cetrulo, Kentucky Instructions to Juries, Criminal § 4.22 (6th ed. 2016) (May 2016 supp.). 9 “If there is evidence that forcible compulsion did not occur and the victim was
less than sixteen years of age, instructions on Second-Degree Sodomy, Third-Degree Sodomy, Sexual Misconduct, Second-Degree Sexual Abuse and/or Third-Degree Sexual Abuse.” Id. at § 4.34.
19 the basis for convicting Knox of multiple offenses. 10 For example, if the jury
was convinced that Knox had penetrated Kelli, it could have convicted Knox of
rape, UTM and sexual abuse based upon that one act. Also, based on the
instructions given, each of the acts of sexual contact described by Kelli could
have each constituted both sexual abuse and UTM.
The lack of specificity in the jury instructions also implicate unanimity
errors. In Hampton v. Commonwealth, 666 S.W.2d 737, 740 (Ky. 1984), we
determined that proof 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.” Id. at 740. See also
Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001); Stringer v.
Commonwealth, 956 S.W.2d 883, 886 (Ky. 1997). In each of those cases
though, while the child victims may not have been able testify to a date or time
frame with precision, they did testify to, and described, a distinct factual basis
for each distinct charge so that the jury could determine, in each instance,
whether each separately charged criminal offense had been committed. We do
not have that here. Here there is a lack of “connectivity” in this case between
the testimony, the jury instructions, and the resultant convictions. Regarding
UTM, the instruction did not specify a particular sex act and any of the sex
10 Only in one context, sexual abuse, was a separate jury instruction
(Instruction No. 4) given stating: “[t]he Court instructs the Jury that in order to convict the Defendant, Edwin A. Knox, of sexual abuse, all 12 jurors must agree that the Defendant committed the same act.” Why this type of instruction was not given applicable to all counts is unknown. Its mention regarding only sexual abuse only adds to the confusion.
20 acts Kelli described could have formed the basis for the conviction. The
instructions also did not differentiate any act from those for which Knox was
convicted of sexual abuse. The phrase in the statute, “any. . . sexual contact,”
is explicitly broad enough to include any and all sexual contact alleged between
Knox and Kelli. Further complicating this issue is the fact that the date range
covered in the UTM instruction was not limited to either the acts committed
when Kelli lived with Knox or the later period of time when she visited him but
encompassed both.
With the broad date range found in the instruction and the number of
sexual acts alleged coupled with the failure of this instruction to specify which
of the alleged acts constituted the offense, this Court is left without any ability
to determine whether or not the jurors all agreed that any one specific violation
occurred. Some jurors may have determined Knox touched Kelli’s vagina but
not believed that Knox forced her to perform oral sex, while other jurors may
have determined that Knox had her perform oral sex but did not touch her
vagina. Even with these disagreements, under the instructions as they were
given, the jurors could still have “unanimously” convicted Knox of UTM
presenting clear unanimity errors which could have easily been avoided.
The trial court, the Commonwealth, and Knox’s counsel could have
ensured that the instructions comported with the proof presented during the
guilt phase of the trial. Instead, significantly deficient instructions were given.
We have a situation here where it cannot be ignored that the jury
instructions did not differentiate between the separate alleged offenses. The
21 jury instructions, like the indictments before, only reference the broad
definitional terms found in their respective criminal statutes without even
approximately specifying what Knox allegedly did for each criminal act. The
Commonwealth did not attempt to remedy this omission during the
presentation of its case against Knox or even within its closing argument. In
the simplest terms, the instructions failed to distinguish what alleged criminal
act “matched up” to any of the charged offenses creating significant uncertainty
as to whether the jury convicted Knox of UTM and sexual abuse in addition to
rape and sodomy based on the same act(s).
Finding errors within the instructions regarding the UTM and sexual
abuse convictions does not however mean that Knox’s convictions for rape or
sodomy must also be reversed. This Court has repeatedly held “[t]he remedy for
these types of double jeopardy violations is to vacate the conviction for the
lesser offense.” Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n. 26 (Ky.
2010); Brown v. Commonwealth, 297 S.W.3d 557, 562–563 (Ky. 2009) (“Given
that first-degree fleeing or evading police is a felony and that second-degree
wanton endangerment is a misdemeanor, the remedy is to vacate the lesser
offenses of wanton endangerment”); Clark v. Commonwealth, 267 S.W.3d 668,
678 (Ky. 2008) (When a person is improperly convicted of two or more offenses
arising “out of a single course of conduct and not requiring proof of a fact
which the other does not[,]” the double jeopardy violation is remedied “by
maintaining the more severe conviction and vacating the lesser” conviction).
22 Standing by themselves, we see no risk of error affecting either the rape
or sodomy convictions. For rape, the jury was only presented with one episode
of potential “sexual intercourse” occurring during the time Kelli resided with
Knox and there was only one charge (rape) which contained the term “sexual
intercourse.” Although the rape instruction does not state the specific act that
Knox allegedly committed, or give an approximate date within the ten months
covered, the date range that is stated covers only the months when Kelli lived
in Knox’s residence so we may confine our analysis to Knox’s misconduct
during that period. At trial, Kelli specifically testified that while she was living
with Knox, and the rest of her family was attending a soccer game, he pulled
her pants down and attempted to put his penis into her vagina unsuccessfully
and told her she needed to “stretch it out.” The totality of the evidence
presented at trial was sufficient to find Knox guilty of rape. His act of putting
his penis into her vagina resulting in “any penetration, however slight[,]”
supported the jury’s conclusion. KRS 510.010(8). Most importantly for this
analysis, this was the only instance of Kelli testifying to an incident of “sexual
intercourse” as defined in the instructions and the only time he tried to put his
penis inside her. We can therefore discern no risk that the jury’s determination
here was faulty.
The same is true regarding Knox’s conviction for sodomy. The jury
instruction here set the same time period for when Kelli resided with Knox and
was otherwise identical to the rape instruction except for stating that Knox
“engaged in deviate sexual intercourse with [Kelli].” Kelli testified that later the
23 same night that Knox attempted to penetrate her, he made her do “the 69” and
perform oral sex on him. Such act would constitute deviate sexual intercourse
as “any act of sexual gratification involving the sex organs of one person . . .
and the mouth of another . . . .” KRS 510.010(1). That incident was the only
one that Kelli testified to regarding her mouth or Knox’s mouth ever contacting
the other’s genitals while she resided with him.
We affirm Knox’s convictions and sentences for rape and sodomy and
vacate his convictions for the “lesser” offenses of unlawful transaction with a
minor and sexual abuse. Knox’s total sentence of thirty years is reduced to
twenty years with the reversal of his two sexual abuse convictions. For the
sexual abuse convictions, Knox was sentenced to five years per conviction to
run consecutively to his rape, sodomy and UTM convictions. The reversal of
Knox’s UTM conviction does not affect Knox’s total sentence because the
twenty-year sentence for UTM was to be served concurrently with the twenty-
year sentences for rape and sodomy.
B. Did the Commonwealth Commit Palpable Error by Offering Bolstering Testimony from Mother? – Unpreserved.
Knox also argues that it was palpable error for the trial court to permit
the Commonwealth to ask Mother “[d]o you believe your children’s allegations?”
Mother answered, “Yes, I do.”
“We have consistently recognized that such testimony is highly
prejudicial and unfairly bolsters the credibility of the allege victim.” Chavies,
374 S.W.3d 313, 322 (Ky. 2012). However, “[I]f upon consideration of the whole
case this court does not believe there is a substantial possibility that the result 24 would have been any different, the irregularity will be held nonprejudicial.”
Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (internal
citation omitted).
This one question and answer was quite limited compared to the
testimony elicited from Mother by Knox’s own counsel who revisited the topic to
show the jury that Mother had previously denied believing abuse had occurred,
contradicted any assertion that she’d walked in on, or in any way been aware
of, Knox abusing any of the girls, and did not force Kelli to visit Knox. Although
Mother’s testimony vouching for her daughters’ veracity was error, we are not
persuaded that Mother’s affirmative response significantly affected the ultimate
conclusions reached by the jury and therefore such error was harmless and
certainly not palpable.
C. Did Cumulative Error Render the Trial Fundamentally Unfair?
For his last argument, Knox asserts that when considering the combined
errors cumulatively, his trial was fundamentally unfair citing to Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010), for the proposition that
“multiple errors, although harmless individually, may be deemed reversible if
their cumulative effect is to render the trial fundamentally unfair.”
While there were certainly “multiple errors” identified within the jury
instructions in this matter, we have corrected those matters within our
analysis of the double jeopardy issues presented and our determination to
reverse Knox’s convictions for UTM and sexual abuse is sufficient and
25 additionally reversing Knox’s convictions for rape and sodomy is not warranted
here.
III. CONCLUSION
The trial court committed palpable error by permitting significantly
deficient instructions to be given to the jury. We vacate Knox’s conviction for
Unlawful Transaction with a Minor (UTM) and both convictions for Sexual
Abuse.
We affirm Knox’s convictions for Rape and Sodomy and remand this
matter to the Hickman Circuit Court for entry of judgment consistent with this
opinion.
All sitting. VanMeter, C.J.; Keller, Lambert, and Thompson, JJ., concur.
Nickell, J., concurs in part and dissents in part by separate opinion in which
Bisig, Conley, JJ., join.
NICKELL, J., CONCURRING IN PART, DISSENTING IN PART: I concur
with majority opinion affirming Knox’s convictions for first-degree rape and
first-degree sodomy. However, I respectfully dissent from the reversal of Knox’s
convictions for first-degree unlawful transaction with a minor and two counts
of first-degree sexual abuse. In my estimation, Knox has waived appellate
review of the purported defects in the jury instructions by inviting the alleged
errors. Therefore, I concur in part and dissent in part.
Generally, a reviewing court will not permit a party to seek relief from an
invited error. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011)
(citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). The law
26 distinguishes “between forfeited errors, which are subject to plain error review,
and waived errors, which are not[.]” Id. at 38; see also Gasaway v.
Commonwealth, 671 S.W.3d 298, 313 (Ky. 2023). Invited errors constitute a
waiver and are defined as “invitations that reflect the party’s knowing
relinquishment of a right[.]” Quisenberry, 336 S.W.3d at 38 (citing United
States v. Perez, 116 F.3d 840 (9th Cir. 1997)). In other words, “the defendant
cannot well complain of being prejudiced by a situation that he or she has
created.” 24 C.J.S. Criminal Procedure & Rights of Accused § 2548 (2024).
The invited error doctrine applies to defective jury instructions. Graves
v. Commonwealth, 384 S.W.3d 144, 152 (Ky. 2012) (holding defendant’s
affirmative agreement to a defective instruction constituted invited error). This
Court has specifically refused to address an alleged unanimity error under the
invited error doctrine where the defendant proposed a jury instruction
“virtually identical to the one given by the trial court.” Rudd v. Commonwealth,
584 S.W.3d 742, 746 (Ky. 2019). Similarly, a party’s litigation conduct may
operate as a waiver of double jeopardy protection. See Couch v. Maricle, 998
S.W.2d 469, 470 (Ky. 1999) (“[I]f the accused makes the motion for a mistrial,
the accused is deemed to have waived his double jeopardy claim.”).
Importantly, the protection of the Double Jeopardy Clause, “which guards
against Government oppression, does not relieve a defendant from the
consequences of his voluntary choice.” Currier v. Virginia, 585 U.S. 493, 502
(2018) (quoting United States v. Scott, 437 U.S. 82, 99 (1976)).
27 Prior to trial in the present matter, the trial court specifically mentioned
the necessity for factual differentiation in the jury instructions and advised the
parties that the instructions must be crafted “so it is clear that the jury is
making a decision on that particular charge.” Upon the denial of Knox’s
renewed motion for directed verdict, the trial court again emphasized the
importance of factual differentiation in the instructions and remarked:
[u]ntil we work through these jury instructions and I’ve heard your all’s arguments with regard to how we are going to differentiate some of the charges, the Court has heard sufficient proof to find there is a factual question for the jury. . . . The motion for directed verdict is overruled at this point. However, you can renew it in regard to specific charges because we have 8 or 9 here . . . and I will be glad to rule on it at that time. The Court will take the motion under advisement for purposes of the record until we work through these jury instructions. Any objection if we work through the jury instructions off the record?
Neither party objected to discussing the content of the jury instructions off the
record. 11 After the instructions were completed, the parties reviewed them on
the record in the presence of the trial court and declined to offer any proposed
revisions or otherwise voice any objections.
Thus, the present appeal does not involve the situation where the
defendant’s failure to object resulted from a lurking prejudicial error that
escaped the notice of the parties and trial court. On the contrary, the trial
court ensured sufficient factual differentiation remained a primary
consideration when the instructions were crafted. Although the parties’
11 Despite the parties’ consent to discuss the jury instructions off the record, I
would note that documentation of these conferences facilitates meaningful appellate review. See Graves v. Commonwealth, 384 S.W.3d at 152.
28 subsequent discussion on factual differentiation was unrecorded, the lack of
any objection after this issue was raised twice by the trial court convinces me
that Knox’s litigation conduct was tantamount to affirmative assent to the
instructions as written.
Moreover, prejudice cannot be presumed by a silent record. Walker v.
Commonwealth, 476 S.W.2d 630, 631 (Ky. 1972). Indeed, it is the appellant’s
“duty to designate and file a record sufficient to enable the court to pass on the
alleged errors.” Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968). To hold
otherwise would contradict this Court’s steadfast refusal to allow a defendant
to inject reversible error into a proceeding by remaining idle in the face of
unmistakable aggrievement. See Crutcher v. Commonwealth, 500 S.W.3d 811,
815 (Ky. 2016); see also Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (“To
countenance a setting aside of the verdicts in this case would place a premium
on agreeable acquiescence to perceivable error as a weapon of appellate
advocacy.”). Under our precedents on invited error, Knox should not be heard
to complain when the trial court passed specifically upon the issue of sufficient
factual differentiation with Knox’s input and without his objection.
In Johnson v. Commonwealth, 676 S.W.3d 405, 414-15 (Ky. 2023), we
recently abandoned our minority position deeming this type of instructional
error to be a structural error mandating reversal. Nevertheless, the task of
crafting instructions on multiple charges remains “pregnant with possibilities
for error[.]” See United States v. U.S. Gypsum Co., 438 U.S. 422, 460 (1978).
29 Recognizing this risk, the trial court adroitly brought the issue of
sufficient factual differentiation to the attention of the parties. Knox had every
opportunity to address this known issue, but he did not, and thus indicated
his affirmative assent by conduct. Moreover, Knox should not be permitted to
“hide the ball” by failing to make a record of the pertinent discussions. In my
view, an appellate court should not encourage tactics which “allow a litigant to
lead a trial court down a primrose path and later, on appeal, profit from the
invited error.” United States v. Gates, 709 F.3d 58, 63 (1st Cir. 2013).
Therefore, I concur in part, dissent in part, and would affirm the judgment of
the trial court in its entirety.
Bisig and Conley, JJ., join.
COUNSEL FOR APPELLANT:
Aaron Reed Baker Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Rachel A. Wright Assistant Solicitor General