Jacob Abercrombie v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: April 18, 2024
• Docket: 2022 SC 0511
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2024 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0511-MR

JACOB ABERCROMBIE APPELLANT

ON APPEAL FROM BRACKEN CIRCUIT COURT V. HONORABLE STOCKTON B. WOOD, JUDGE NO. 21-CR-00043

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Jacob Abercrombie was convicted of first-degree rape (victim less than

twelve years old), first-degree sodomy (victim less than twelve years old), and

first-degree sexual abuse (victim less than twelve years old). He received a

sentence of seventy years’ imprisonment and appeals to this Court as a matter

of right. 1 Abercrombie argues: (1) the victim was improperly permitted to

testify outside his sightline; (2) he was entitled to a directed verdict of acquittal

on all charges; and (3) the jury instructions violated his right to a unanimous

verdict and the prohibition against double jeopardy. Because the jury

instructions failed to adequately differentiate the instruction on sexual abuse

from the instructions on rape and sodomy, we are constrained to reverse the

1 KY. CONST. § 110(2)(b). sexual abuse conviction. However, this error does not affect the validity of the

rape and sodomy convictions. Therefore, we affirm in part, reverse in part, and

remand for dismissal of the first-degree sexual abuse charge.

Abercrombie lived with his father and stepmother who often babysat the

minor victim, A.R. 2 At all relevant times, Abercrombie was between 25 and 27

years of age while A.R. was between 6 and 8 years of age. A.R. would often go

into Abercrombie’s room and request to play video games. Since Abercrombie

would not allow A.R. to play video games, she would play with her dolls on his

bed.

At some point, when A.R. was six or seven years of age, Abercrombie

began a course of ongoing molestation. After removing A.R.’s clothes, he would

hold her on top of him and rub his penis on her vagina. A.R. would struggle to

get away but was unable to break free from Abercrombie’s grasp. The incidents

occurred multiple times and caused A.R.’s vagina to hurt. Abercrombie also

placed his penis in her anus and placed his mouth on her vagina and anus on

multiple occasions. Abercrombie also touched A.R.’s vagina, anus, and breasts

on more than ten occasions. He told A.R. not to tell anyone or else he would go

to jail. A.R. testified that she did not tell anyone because she feared

Abercrombie would kill her.

In April 2021, A.R. disclosed the ongoing abuse to her mother who

contacted law enforcement. Kentucky State Trooper 3 Joshua Wise investigated

2 To protect the victim’s privacy, we refer to her by initials.

3 By the time of trial, Trooper Wise had been promoted to the rank of Detective.

2 the allegations. Trooper Wise contacted the Child Advocacy Center to arrange

for a forensic interview of A.R. Tasha Craft, a social worker and special

investigator for the Cabinet for Health and Family Services, also interviewed

Abercrombie, A.R., and several other witnesses. Craft further conducted a

walkthrough of the Abercrombie residence. A.R. underwent a sexual-assault

examination. The physical examination revealed abnormal findings including

very little tissue in the posterior half of the hymen as well as a notch on the

hymen at the 9 o’clock position. The examining doctor, Dr. Consuela Alley,

concluded these findings were highly suggestive of vaginal penetration.

On August 19, 2021, Abercrombie was indicted on multiple counts of

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

indictment was subsequently amended to charge Abercrombie with one count

each of first-degree rape, first-degree sodomy, and first-degree sexual abuse as

part of a continuing course of conduct pursuant to KRS 501.100.

A jury trial commenced on August 22, 2022. Abercrombie testified in his

own defense and denied the allegations. He was found guilty on all three

counts of the indictment. The jury recommended a total sentence of 110 years’

imprisonment, which the trial court properly reduced to the statutory

maximum of 70 years’ imprisonment. This appeal followed.

I. Trial court properly shielded child victim from visual contact with Abercrombie.

Abercrombie first argues the trial court erred by permitting A.R. to testify

outside of his line of sight in the absence of compelling need. We disagree.

3 Prior to trial, a guardian ad litem (GAL) was appointed for A.R. The GAL

filed a motion to allow “testimonial accommodations” pursuant to KRS 421.350

and 26A.140. Specifically, the GAL requested the trial court to allow A.R. to

testify outside of Abercrombie’s presence. The GAL stated that A.R. feared

Abercrombie and would likely be unable to testify in his presence. After a

hearing, the trial court determined that a screen would be placed between A.R.

and Abercrombie during A.R.’s testimony at trial. Abercrombie renewed his

objection to the use of the screen at trial, which the trial court denied. A.R.

testified from the witness stand with the screen shielding her from

Abercrombie’s sightline. Abercrombie was able to view A.R.’s testimony in real

time on a video screen.

At the outset, we conclude KRS 421.350 is inapplicable to the present

appeal. KRS 421.350 allows a child victim, under the age of twelve, to testify

outside the courtroom via closed circuit equipment or video recording upon a

showing of compelling need. By contrast, the use of a screen to shield a child

victim from visual contact with the alleged perpetrator during in-court

testimony constitutes an accommodation governed by KRS 26A.140(1)(d). A

finding of compelling need is not required under this statute.

“In appropriate cases,” KRS 26A.140(1)(d) mandates the use of

“procedures . . . to shield children from visual contact with [the] alleged

perpetrator.” The standard governing such accommodations is whether the

procedure used is “unduly burdensome to the rights of the defendant[.]” KRS

26A.140(1); Walker v. Commonwealth, 548 S.W.3d 250, 252 (Ky. 2018). In this

4 context, “a burden is ‘undue’ only when the defendant’s rights are negatively

and materially impacted by the contested action.” Id.

Abercrombie has failed to demonstrate the accommodation by the trial

court substantially interfered with his rights. In Walker, we reiterated “the

primary right secured by the Confrontation Clause is that of cross-

examination.” Id. (quoting Sparkman v. Commonwealth, 250 S.W.3d 667, 669

(Ky. 2008)). In the present appeal, Abercrombie was able to view A.R.’s in-

court testimony through a video monitor and consult with counsel in real-time.

Without a concrete showing of prejudice, we cannot accept Abercrombie’s claim

of per se prejudice. We discern no error.

II. Abercrombie was not entitled to a direct verdict.

Abercrombie next argues he was entitled to a directed verdict of acquittal

on each of the charged offenses. We disagree.

The denial of a motion for directed verdict will not be reversed unless the

appellate court determines “it would be clearly unreasonable for a jury to find

guilt.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When

confronted with a motion for directed verdict, the trial court must assume the

truth of the Commonwealth’s evidence and “draw all fair and reasonable

inferences from the evidence in favor of the Commonwealth.” Id. A conviction

must be based on “evidence of substance, and the trial court is expressly

authorized to direct a verdict for the defendant if the prosecution produces no

more than a mere scintilla of evidence.” Id. at 188.

5 Direct evidence of guilt is not required to support a conviction.

Southworth v. Commonwealth, 435 S.W.3d 32, 42 (Ky. 2014). A conviction may

rest on purely circumstantial evidence if the Commonwealth can prove each of

the elements of the offense beyond a reasonable doubt. Id. Similarly, the

ability of a jury to draw a reasonable inference does not depend on the

existence of direct evidence. McGruder v. Commonwealth, 487 S.W.3d 884, 890

(Ky. 2016). A reasonable inference arises from “a process of reasoning by

which a proposition is deduced as a logical consequence from other facts

already proven.” Id. (quoting Martin v. Commonwealth, 13 S.W.3d 232, 253

(Ky. 1999)). Because a conviction may stand on circumstantial evidence, a

reasonable inference may also be drawn from circumstantial evidence. Id.

Ultimately, the directed-verdict standard depends on “the statutes creating the

offense[,]” and “is not controlled by the law as described in the jury

instructions[.]” Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013),

overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky.

2020).

Each count of the indictment charged Abercrombie with engaging in a

continuous course of conduct against a vulnerable victim under KRS 501.100,

which provides in part:

(1) As used in this section, “offense against a vulnerable victim” means any violation of:

...

(d) KRS 510.040 [first-degree rape], 510.050, 510.060, 510.070 [first-degree sodomy], 510.080, 510.090, 510.110 [first-degree

6 sexual abuse], 510.120, or 530.020, if the victim is under the age of fourteen (14), . . .

(2) A person may be charged with committing an offense against a vulnerable victim in a continuing course of conduct if the unlawful act was committed against the same person two (2) or more times over a specified period of time.

(4) To convict a person of an offense against a vulnerable victim in a continuing course of conduct, the jury shall unanimously agree that two (2) or more acts in violation of the same statute occurred during the specified period of time. The jury need not agree on which specific acts occurred.

When considering the sufficiency of the evidence to prove a continuing course

of conduct under KRS 501.100, trial courts must remain mindful that

“multiple similar offenses [cannot] be proven by mere mathematical

extrapolation.” See Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002).

Indeed, “[m]ere mathematical extrapolation of a described offense based on

such vague testimony as ‘almost every other weekend,’ ‘about ten weeks per

year,’ or ‘every other time’ will not support convictions of separate offenses.”

Id. However, this testimony remains highly relevant because “such evidence of

other crimes of the same nature perpetrated against the same victim [is]

admissible to prove intent, motive or plan to commit the specifically described

offense.” Id. at n.1. Thus, contrary to the Commonwealth’s argument, A.R.’s

testimony, that she was raped “more than ten times”—sodomized “more than

ten times”—and inappropriately touched “more than ten times[,]” is

insufficient, without further factual differentiation, to prove “that two (2) or

7 more acts in violation of the same statute occurred during the specified period

of time.” KRS 500.100(4). Nevertheless, upon consideration of the evidence as

a whole, we are convinced the trial court properly denied Abercrombie’s motion

for a directed verdict on each of the charged offenses.

Under Count 1 of the superseding indictment, Abercrombie was charged

with first-degree rape, victim less than twelve years old, in a continuing course

of conduct. The elements of first-degree rape are set forth in KRS 510.040:

(1) A person is guilty of rape in the first degree when:

(a) He engages in sexual intercourse with another person by forcible compulsion; or

(b) He engages in sexual intercourse with another person who is incapable of consent because he:

1. Is physically helpless; or

2. Is less than twelve (12) years old.

KRS 510.010(8) defines “sexual intercourse” as:

[S]exual 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[.]”

A child victim’s limited knowledge of sexual terminology does not

necessitate further clarification or corroboration unless “the unsupported

testimony of the victim is ‘. . . contradictory, or incredible, or inherently

improbable.’” Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001) (quoting

Robinson v. Commonwealth, 459 S.W.2d 147, 150 (Ky. 1970)). Technical or

8 clinical descriptions of vaginal penetration are not required to sustain a

conviction for rape: it is enough that the witness and jury knew what was

meant by the words used “in the connection [the victim] used [them].” See

Taliaferro v. Commonwealth, 151 Ky. 10, 150 S.W. 977, 978 (1912). Moreover,

“[t]he fact of penetration may be proved by the circumstances.” Jones v.

Commonwealth, 833 S.W.2d 839, 841 (Ky. 1992) (quoting Causey v.

Commonwealth, 550 S.W.2d 494 (Ky. 1977)). Specifically, we have recognized

that “genital touching and resulting pain, taken together with . . . medical

evidence” may constitute sufficient evidence of penetration. Sharp v.

Commonwealth, 849 S.W.2d 542, 548 (Ky. 1993).

The evidence was sufficient to sustain Abercrombie’s conviction of first-

degree rape as part of a continuing course of conduct. It is undisputed that

A.R. was less than twelve years old when the crime occurred. A.R. positively

identified Abercrombie as the perpetrator. She stated the rapes occurred on

the bed in Abercrombie’s room when they were alone. A.R. testified that

Abercrombie would rub his “pee-pee” on her “pee-pee.” She clarified this

terminology meant that Abercrombie would touch his “front” to her “front.”

A.R. described how Abercrombie would hold her on top of him so she could not

get away. She stated these incidents hurt “on her pee-pee.” A.R. also told her

mother and Abercrombie’s mother about her “pee-pee” hurting on multiple

occasions. A.R.’s mother further described a specific occasion when A.R.

returned from an overnight visit to the Abercrombie residence with a “brown

stain” and “little brown speckles” in the crotch of her undergarments.

9 Additionally, Abercrombie’s mother testified she called A.R.’s mother to ask

permission to apply medication to A.R.’s vagina and anus on two separate

occasions after A.R. complained of pain in those areas. Dr. Alley testified the

physical examination of A.R. revealed “very little hymenal tissue remaining in

the posterior half as well as a notch at 9 o’clock.” Dr. Alley further opined

these findings were “highly suggestive” of vaginal penetration. A.R. testified the

abuse stopped after she told her mother and stopped going to the Abercrombie

residence. While A.R. may not have precisely described the occurrence of

penetration and other details concerning the events, the circumstantial

evidence provided an adequate basis from which the jury could reasonably

infer that vaginal penetration occurred on two or more separate occasions.

Ultimately, we conclude “the evidence here was as specific as is usually found

in such cases and ample to separately identify the various offenses charged.”

Garrett, 48 S.W.3d at 10.

Moreover, we cannot conclude the inconsistencies in A.R.’s testimony

were so “contradictory, or incredible, or inherently improbable” as to require

additional corroboration. Id. A.R. testified Abercrombie would close and lock

his bedroom door when the abuse occurred. However, other witnesses testified

Abercrombie’s room had no door. Additionally, A.R. testified no one other than

Abercrombie had ever touched her “pee-pee” and that her sister had never

touched her “pee-pee.” She further testified she never saw her mother and

stepfather do anything with their “pee-pees.” But A.R.’s mother testified she

discovered A.R. and her sister “experimenting” with each other. When

10 confronted by her mother, A.R. stated she had witnessed her mother and

stepfather having sex through a hole in the door. We reject Abercrombie’s

contention that these inconsistencies impacted the sufficiency of the evidence

to support his convictions. Instead, these “discrepancies in the victim’s

testimony are matters of credibility going to the weight to be given by the jury

to the child’s testimony.” Garrett, 48 S.W.3d at 10 (citing Commonwealth v.

Cox, 837 S.W.2d 898, 900 (Ky. 1992)).

Under Count 2 of the superseding indictment, Abercrombie was charged

with first-degree sodomy, victim under twelve years old, in a continuing course

of conduct. KRS 510.070 sets forth the elements of first-degree sodomy as

follows:

(1) A person is guilty of sodomy in the first degree when:

(a) He engages in deviate sexual intercourse with another person by forcible compulsion; or

(b) He engages in deviate sexual intercourse with another person who is incapable of consent because he:

KRS 510.010(1) defines “deviate sexual intercourse” as

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.

Penetration involving the sex organs of one person and the mouth or anus of

another is not required to sustain a conviction for first-degree sodomy. Bills v.

Commonwealth, 851 S.W.2d 466, 470 (Ky. 1993). 11 Based on our review of the record, we conclude there was ample evidence

to support Abercrombie’s conviction for first-degree sodomy as a continuing

course of conduct. It is undisputed that A.R. was less than twelve years old at

the time these crimes occurred. A.R. directly testified that Abercrombie placed

his “pee-pee” in her “butthole.” A.R.’s mother testified that A.R. was

“constantly” complaining about her “butt” hurting. A.R. also directly stated

that Abercrombie placed his mouth on her “butt and pee-pee.” A.R.’s

testimony concerning the anal intercourse, the oral-genital contact, and the

oral-anal contact is sufficient to establish two or more separate and distinct

instances of first-degree sodomy. Again, “[a] victim . . . is not required to use

technical or anatomically accurate terminology in describing sexual abuse to

support a conviction for sodomy when the words actually used are clear.” 70C

Am. Jur. 2d Sodomy § 54 (2023).

Under Count 3 of the superseding indictment, Abercrombie was charged

with first-degree sexual abuse, victim under twelve years old, in a continuing

course of conduct. KRS 510.110 sets forth the elements of first-degree sexual

abuse in pertinent part:

(1) A person is guilty of sexual abuse in the first degree when:

(b) He or she subjects another person to sexual contact who is incapable of consent because he or she:

2. Is less than twelve (12) years old[.]

KRS 510.010(7) defines “sexual contact” as: 12 the touching of a person’s intimate parts or the touching of the clothing or other material intended to cover the immediate area of a person’s intimate parts, if that touching can be construed by a reasonable person as being done:

(a) For the purpose of sexual arousal or gratification of either party;

(b) For a sexual purpose; or

(c) In a sexual manner for the purpose of:

1. Exacting revenge or retribution;

2. Humiliating or degrading; or

3. Punishment[.]

In Bills, this Court approvingly quoted the following examples of sexual contact

from the commentary to KRS 510.010(7): “such acts as the manipulation of

genitals, digital penetration of the vagina, and non-consensual fondling of a

woman’s breast; it would also include such acts as removing a child’s

undergarments.” 851 S.W.2d at 471.

We conclude the evidence presented at trial was sufficient to sustain the

conviction of first-degree sexual abuse. A.R. testified that Abercrombie touched

her on “the pee-pee and the butt.” She also stated that Abercrombie touched

her “up here” while pointing with both hands to her chest. Additionally, A.R.

testified he removed her clothing before the acts of molestation occurred.

These incidents support more than two separate and distinct convictions of

first-degree sexual abuse. We conclude the trial court properly denied the

motion for directed verdict.

13 III. The jury instructions failed to adequately differentiate between the charged offenses.

Finally, Abercrombie contends the jury instructions violated his right to a

unanimous verdict and the prohibition against double jeopardy. He concedes

these arguments are unpreserved and requests palpable error review under

RCr 4 10.26, which provides:

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.

“‘Manifest injustice’ is error [that] so seriously affect[s] the fairness, integrity, or

public reputation of the proceeding as to be ‘shocking or jurisprudentially

intolerable.’” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018)

(quoting Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)). We agree

that palpable error occurred because the instructions for rape, sodomy, and

sexual abuse violated double jeopardy by permitting Abercrombie to be

convicted twice for the same conduct. Therefore, we must reverse the lesser

conviction of sexual abuse. We further conclude the instructions for rape and

sodomy violated Abercrombie’s right to a unanimous verdict. However, we

conclude that reversal of these two convictions is unwarranted because the

unanimity error does not rise to the level of manifest injustice.

“Section 7 of the Kentucky Constitution requires a unanimous verdict

reached by a jury of twelve persons in all criminal cases.” Wells v.

4 Rules of Criminal Procedure.

14 Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). “[I]t 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, 283 S.W.3d at 695. While improper instructions can give

rise to a variety of constitutional errors, we have explained

[w]hether the issue is viewed as one of insufficient evidence, or double jeopardy, or denial 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.

Miller, 77 S.W.3d at 576.

The challenged instructions include Nos. 4-7, which state in pertinent

part:

• Instruction No. 4

For the purposes of these Instructions, the following words or terms have the following meanings:

Sexual Intercourse – Means sexual intercourse in its ordinary sense, and includes the penetration of the sex organ of one person by any body part manipulated by another person. Sexual intercourse occurs upon any penetration, however slight: emission is not required.

Deviate sexual intercourse – Means 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 manipulated by another person.

Sexual Contact – Means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.

• Instruction No. 5

15 You will find the Defendant guilty of Rape in the First Degree in a Continuing Course of Conduct as charged in Count One of the Indictment 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 about December 30, 2019 through April 7, 2021 and before the finding of the Indictment herein, he engaged in a continuing course of conduct resulting in his having sexual intercourse with A.R. no less than two times[.]

• Instruction No. 6

You will find the Defendant Guilty of Sodomy in the First Degree in a Continuing Course of Conduct as charged in Count 2 of the Indictment 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 about December 30, 2019 though April 7, 2021 and before the finding of the Indictment herein, he engaged in a continuing course of conduct resulting in his having deviate sexual intercourse with A.R. no less than two times[.]

• Instruction No. 7

You will find the Defendant Guilty of Sexual Abuse in the [First] Degree in a Continuing Course of Conduct as charged in Count Three of the Indictment 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 about December 30, 2019 though April 7, 2021 and before the finding of the Indictment herein, he engaged in a continuing course of conduct resulting in his subjecting A.R. to sexual contact no less than two times[.]

Each instruction charged Abercrombie with engaging in a continuous course of

conduct against a vulnerable victim under KRS 501.100. This statute was

designed to relieve unanimity issues arising from multiple instances of a

16 particular offense. Justice v. Commonwealth, 636 S.W.3d 407, 418 (Ky. 2021),

abrogated on other grounds by Sexton v. Commonwealth, 647 S.W.3d 227 (Ky.

2022); KRS 501.100(4). Thus, in the present appeal, the jury did not have to

agree on which two or more instances of rape occurred; which two or more

instances of sodomy occurred; and which two or more instances of sexual

abuse occurred.

Nevertheless, by its plain terms, KRS 501.100 does not alleviate the

failure to differentiate between separately charged offenses. Id. at 417. In

Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky. 1993), as in present

appeal, the defendant was charged with rape, sodomy, and sexual abuse. In

that decision, the jury instructions differentiated between rape and sexual

abuse only by substituting the terms “sexual contact” and “sexual intercourse”

for one another. Id. We held these instructions were erroneous because

sexual abuse in the first degree is a lesser-included offense of both rape in the first degree and sodomy in the first degree, while at the same time it was in this case a primary charge of the indictment, relating to a separate instance of sexual contact (the insertion of the foreign objects and the touching of the breasts). The instruction, couched in general terms of “sexual contact” without differentiating the act from those acts constituting rape and sodomy, permitted the jury to find Johnson guilty twice for the same act, e.g., intercourse constituting rape and intercourse constituting sexual contact and, therefore, sexual abuse.

Id. at 277.

In the present appeal, as in Johnson, the sole distinction between the

instruction for first-degree rape and the instruction for first-degree sexual

abuse was the substitution of the terms “sexual intercourse” and “sexual

17 contact.” Additionally, the instructions defined “sexual intercourse” to include

“the penetration of the sex organ of one person by any body part manipulated

by another person.” A.R.’s trial testimony demonstrated both ordinary

intercourse and the touching of the vagina. Thus, the touching of A.R.’s vagina

could have convinced a reasonable juror to conclude that the same act could

constitute both sexual intercourse and sexual contact.

Factual differentiation is imperative in this context because “[t]he

addition of penetration by ‘any body part’ enacted by the 2018 General

Assembly” into the definition of sexual intercourse “comes close to merging the

crimes of Rape and Sexual Abuse.” 1 Cooper & Cetrulo, Kentucky Jury

Instructions § 4.01 (2023). Given the inevitable overlap of these charges, trial

courts must include “some distinction between abusive acts, however trivial,

minute, or obscure.” See King, 554 S.W.3d at 355. Because the instructions

for rape and sexual abuse did not contain any factual differentiation, we are

constrained to conclude they are erroneous under Johnson. Further, we

cannot accept the Commonwealth’s suggestion that its reference to

Abercrombie’s touching of A.R.’s breasts in closing argument cured the

deficient instructions. Dixon v. Commonwealth, 263 S.W.3d 583, 593 (Ky.

2008) (“[T]he arguments of counsel are not sufficient to rehabilitate otherwise

erroneous or imprecise jury instructions.”). Our precedents maintain that a

double jeopardy violation necessarily results in manifest injustice. Cardine v.

Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009). The remedy for a double

jeopardy violation is to reverse or vacate the lesser offense. See Clark v.

18 Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008). Therefore, Abercrombie’s

conviction for first-degree sexual abuse must be reversed. To be clear, the

reversal of the sexual abuse conviction will not affect Abercrombie’s overall

sentence because we are affirming his remaining convictions for rape and

sodomy. The trial court properly imposed the jury’s recommended sentence of

consecutive 50-year sentences as reduced to the statutory cap of 70 years’

imprisonment.

Although we are reversing Abercrombie’s sexual abuse conviction for

impermissible overlap with the rape instruction, we will also briefly address the

erroneous overlap between the sexual abuse and sodomy instructions to the

extent it constitutes a separate double jeopardy violation and calls the validity

of the sodomy conviction into question. See King, 554 S.W.3d at 355. Again,

the inclusion of the “any body part” language in the definition of deviate sexual

intercourse comes close to merging the crimes of sodomy and sexual abuse.

See 1 Cooper & Cetrulo, at § 4.01. The expansion of the definition of deviate

sexual intercourse to include digital penetration of the anus distinguishes the

present appeal from our decision in Mash v. Commonwealth, 376 S.W.3d 548,

559 (Ky. 2012). In Mash, we described the difference between sodomy and

sexual abuse:

First-degree sexual abuse is properly classified as a lesser included offense of first-degree sodomy. Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky. 1993). The distinction between the two offenses is the body part touched for purposes of sexual gratification. Sexual abuse requires “sexual contact,” KRS 510.110, which means “touching of the sexual or other intimate parts of a person,” KRS 510.010(7). Sodomy, on the other hand,

19 requires “deviate sexual intercourse,” KRS 510.070, which means “any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another,” KRS 510.010(1). The additional element in a sodomy offense is the specific sexual or intimate parts involved, namely, the mouth or anus.

(Emphasis added). Thus, “[w]hether . . . convictions for sodomy and

sexual abuse violate double jeopardy depends on whether the sexual abuse

was incidental to the sodomy or a separate criminal act.” King, 554 S.W.3d at

357. Here, the amended indictment alleged that Abercrombie committed first-

degree sodomy “by inserting his finger(s) into A.R.’s anus and/or by performing

oral sex on A.R.” A.R.’s trial testimony described both anal intercourse and

touching of the anus. Because the definitions in the present appeal do not

distinguish sodomy and sexual abuse by the body part used, the touching of

A.R.’s anus could have convinced a reasonable juror that the same act

constituted sodomy and sexual abuse. Therefore, the sexual abuse conviction

was also subject to reversal as the lesser offense on this basis.

Moreover, the inclusion of the “any body part” language in the definition

of sexual intercourse fails to adequately differentiate between the charges of

rape and sodomy in the present appeal because the evidence of oral-genital

contact could have induced a reasonable juror to conclude the same act

satisfied the definitions of both sexual intercourse and deviate sexual

intercourse. Compare KRS 510.010(8) (defining “sexual intercourse” as “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[,]”), with KRS 510.010(1)(defining “deviate sexual intercourse” as “any

20 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.”). Because [s]exual

intercourse occurs upon any penetration, however slight[,]” A.R.’s testimony

that Abercrombie placed his mouth on her “pee-pee” could conceivably

constitute rape. See KRS 510.010(8); KRS 510.040. Indeed, “it is sometimes

elaborated that penetration between the labia or of the vulva will suffice. Entry

of the vagina . . . is not necessary.” 2 Wayne R. LaFave, Subst. Crim. L. §

17.2(a) (3d ed. 2023). With such a broad definition of sexual intercourse, it

was incumbent upon the trial court to prevent overlap between the rape and

sodomy instructions by some degree of factual differentiation. We view this

impermissible overlap between the rape and sodomy instructions as strictly a

unanimity problem, as opposed to a double jeopardy violation because the

statutes for first-degree rape and first-degree sodomy satisfy the Blockburger 5

test.

In Kentucky, the test for double jeopardy is whether “each statute

requires proof of a fact the other does not. Put differently, is one offense

included within another?” Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.

1996) (internal citation omitted) (adopting the test set forth in Blockburger, 284

U.S. at 304)). Clearly, first-degree rape requires proof of sexual intercourse

while first-degree sodomy requires proof of deviate sexual intercourse.

5 Blockburger v. United States, 284 U.S. 299, 304 (1932).

21 Compare KRS 510.040 with KRS 510.070. Thus, there is no situation where

first-degree rape and first-degree sodomy could be lesser included offenses of

each other. Likewise, we fail to discern, and Abercrombie has not claimed, any

statutory double jeopardy violation relating to the jury instructions. KRS

505.020; see also King, 554 S.W.3d at 356-57.

Having determined the rape and sodomy instructions contained a

unanimity error as opposed to a double jeopardy violation, we must determine

whether the error was palpable. In our recent decision in Johnson v.

Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023), this Court recently set forth

the appropriate standard:

In all cases presenting an unpreserved error regarding a unanimous jury, the courts must “plumb the depths of the proceeding” and scrutinize the factual idiosyncrasies of the individual case. That includes a consideration of the weight of the evidence. 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.”

In other words, “reversal is not the universal, essential result of a unanimous

verdict error. Where manifest injustice will not result, this Court can find no

palpable error.” See Sexton v. Commonwealth, 647 S.W.3d 227, 232 (Ky. 2022).

Despite the shortcomings of the instructions, we cannot conclude the

error “cries out for relief” or has otherwise impugned the fairness and integrity

of the judicial process. In the present appeal, Abercrombie was afforded proper

notice of the distinction between the rape and sodomy allegations. There is no

indication, by indictment or argument, that the evidence of oral-genital contact

22 was used as proof of rape. Further, the evidence for the sodomy conviction was

overwhelming. A.R. testified to separate instances of anal intercourse, oral-

genital contact, and oral-anal contact. While the evidence of a continuing

course of rape depended on circumstance and inference, we nevertheless

perceive no manifest injustice in the context of a latent unanimity issue as

between the rape and sodomy instructions when the error clearly had no

bearing on the jury’s verdict. Therefore, we affirm Abercrombie’s convictions

for first-degree rape and sodomy.

While the reversal of Abercrombie’s conviction of first-degree sexual

abuse will not diminish his total sentence 6, this double jeopardy violation was

totally unnecessary because there was clearly sufficient evidence to distinguish

the instruction for sexual abuse from those for rape and sodomy. This Court

has repeatedly demonstrated that instructional errors of this nature are easily

“avoided by simply differentiating each individual jury instruction by

incorporating into each instruction whatever distinguishing feature was

presented in the evidence.” King, 554 S.W.3d at 353. We further implore trial

courts to exercise caution when including the “any body part” language in

definitional instructions for sexual intercourse and deviate sexual intercourse.

Instructions should only include this verbiage “if warranted by the facts of the

particular case.” 1 Cooper & Cetrulo, at § 4.01.

6 Again, our affirmance of Abercrombie’s rape and sodomy convictions validates

the sentence imposed for these offenses.

23 IV. Conclusion

Accordingly, the judgment of the Bracken Circuit Court is affirmed in

part, reversed in part, and remanded for dismissal of the first-degree sexual

abuse charge.

All sitting. VanMeter, C.J.; Bisig, Conley, Lambert, Nickell, and

Thompson, JJ., concur. Keller, J., concurs in result only.

COUNSEL FOR APPELLANT:

Roy Alyette Durham, II Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Joseph A. Beckett Assistant Attorney General