Harp v. Commonwealth

266 S.W.3d 813, 2008 Ky. LEXIS 323, 2008 WL 4691847
CourtKentucky Supreme Court
DecidedOctober 27, 2008
Docket2007-SC-000288-MR
StatusPublished
Cited by154 cases

This text of 266 S.W.3d 813 (Harp v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323, 2008 WL 4691847 (Ky. 2008).

Opinions

MEMORANDUM OPINION OF THE COURT

I. INTRODUCTION.

Wilbert Harp appeals as a matter of right1 from his convictions for indecent exposure, first-degree sodomy, and seven counts of first-degree sexual abuse. Because the jury instructions on the seven sexual abuse counts were identical, containing no identifying characteristics that required the jury to differentiate among each of the counts, we reverse Harp’s sexual abuse convictions. We otherwise affirm Harp’s indecent exposure or sodomy convictions.

II. FACTUAL AND PROCEDURAL HISTORY.

Harp moved in with his girlfriend and her four-year-old daughter, B.B. According to B.B., Harp began sexually molesting her sometime after they all moved to a different apartment several months later. According to B.B., Harp engaged in a variety of sexual acts with her while her mother was at work. B.B. eventually disclosed the incidents to her mother, but the mother took no action at that time because Harp assured the mother that nothing improper was occurring.

While B.B. and her aunt were looking at a magazine that contained an advertisement depicting a couple kissing, B.B. told the aunt that Harp had done the same thing to her. The aunt reported B.B.’s [817]*817statements, which eventually led to Harp’s being questioned by the police. Harp admitted inappropriate contact with B.B. but blamed the contact on B.B.’s curiosity about sex. After being admitted to a psychiatric hospital, Harp wrote a letter to his psychologist describing sexual contact with B.B. but, again, blaming B.B. for the contact.

Harp was ultimately indicted for one count of first-degree sodomy, seven counts of first-degree sexual abuse, and one count of indecent exposure. A jury convicted Harp on all charges contained in the indictment. Harp was sentenced to twenty-five years for the sodomy conviction; two and one-half years’ imprisonment on each sexual abuse conviction; and ninety days for the indecent exposure conviction, all to run concurrently. This appeal followed.

III. ANALYSIS.

Harp raises six issues. He contends that the trial court erred by (1) admitting the letter he wrote to his psychologist, (2) admitting evidence of sexual contact with B.B. not charged in the indictment, (3) finding B.B. competent to testify, (4) allowing improper bolstering of B.B.’s testimony, (5) failing to direct a verdict on the indecent exposure charge, and (6) failing to instruct the jury properly because the instructions on multiple counts of first-degree sex abuse failed to require the jury to make separate factual findings and reach a unanimous verdict on each count.

Because we agree with Harp that the jury instructions regarding the sexual abuse charges were erroneous, we shall discuss that issue first. Since the flawed sexual abuse instructions caused Harp no discernible prejudice in the sodomy and indecent exposure convictions, we affirm those convictions. We must also address the remaining issues because they are either pertinent to the sodomy or indecent exposure convictions, or concern matters likely to arise upon remand of the sexual abuse charges.

A. Trial Court Committed Reversible Error in Failing to Add Distinguishing Characteristics to Each Sexual Abuse Charge.

Harp argues that it was error for the trial court not to add language to each of the seven sexual abuse instructions so that the jury would be required to distinguish from the evidence one count from another. We agree.

Each sexual abuse instruction was identical and read, in pertinent part, as follows:

You will find the defendant, Wilbert Hiatt Harp, guilty under this Instruction if you believe from the evidence beyond a reasonable doubt, all of the following:
(a) That in this county, between the 1st day of December 2008 and the 1st day of February 2006, the defendant subjected [B.B.] to sexual contact;
AND
(b) That at the time of such contact, [B.B.] was less than 12 years of age.

We have previously held that “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.”2 Thus, we have clearly held — before Harp’s trial — that a trial court errs in a case involving multiple charges if its instructions to the jury fail “factually [to] differentiate between the separate offenses.”3 Very recently — after Harp’s trial — we sim[818]*818ilarly reinforced that holding by again explaining that “[w]hen the evidence is sufficient to support multiple counts of the same offense, the jury instructions must be tailored to the testimony in order to differentiate each count from the others.”4

Based on this precedent, it is apparent that the trial court erred by submitting seven identical sexual abuse instructions to the jury. We again instruct the bench and bar of the Commonwealth that in a case involving multiple counts of the same offense, a trial court is obliged to include some sort of identifying characteristic in each instruction that will require the jury to determine whether it is satisfied from the evidence the existence of facts proving that each of the separately charged offenses occurred.

Having found that the instructions at issue were erroneous, we now turn to the more difficult question of whether that error may be deemed harmless. Despite our earlier statements seemingly to the contrary, we now hold that a failure to include proper identifying characteristics in jury instructions is reversible error, provided that a timely objection to the error has been made.

We recognize, of course, that an erroneous jury instruction may sometimes be an unfortunate, yet ultimately harmless error.5 But a party claiming that an erroneous jury instruction, or an erroneous failure to give a necessary jury instruction, bears a steep burden because we have held that “[i]n this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial; that an appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error.”6 Regrettably, we have sometimes failed to utilize the presumption of prejudice associated with erroneous jury instructions in at least some of our recent decisions.7 However, to clear up any possible confusion among the bench and bar of the Commonwealth, we now expressly return and adhere to the presumption of prejudice inherent in an erroneous instruction as expressed in McKinney. Of course, that presumption can be successfully rebutted by showing that the error “did not affect the verdict or judgment.”8 But viewed through that proper procedural lens, the erroneous instructions in the case at hand cannot be deemed harmless.

[819]*819Our precedent of longstanding leaves no doubt that we have adhered to the “bare bones” principle of jury instructions.9

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Bluebook (online)
266 S.W.3d 813, 2008 Ky. LEXIS 323, 2008 WL 4691847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harp-v-commonwealth-ky-2008.