RENDERED: FEBRUARY 15, 2018 TO BE PUBLISHED
juprtttt!o~~~~s!!M~fM ~ l [D)~IJ(E:3/8'/J~ )d.;,~Ml~n,l)<:_ RICHARD YATES 'APPELLANT
ON APPEAL FROM FULTON CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD, JUDGE NO. 14-CR-00052
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING IN PART, REVERSING IN PART
A jury convicted Richard Yates of incest, first-degree unlawful
transaction with a minor, use of a minor in a sexual performance, first-degree
unlawful imprisonment, and first-degree sexual abuse. The jury recommended
sentences of twenty years' imprisonment for incest, unlawful transaction with a
minor, and use of a minor in a sexual performance; and five years'
imprisonment each for unlawful imprisonment and sexual abuse. The jury
recommended that these sentences should run consecutively. Consistent with
the jury's sentencing recommendations, the trial court fixed Yates's sentence at
seventy years' imprisonment.
Yates now appeals as a matter of right, Kentucky Constitution§
110(2)(b), arguing that the trial court erred by: (1) overruling his motion to
dismiss his indictment due to prosecutorial vindictiveness; (2) overruling his
motions for a directed verdict for insufficiency of evidence; (3) permitting
various double jeopardy violations; and (4) permitting the victim's mother to improperly vouch for the victim's credibility. For the reasons set forth below, ·
we affirm in part and reverse in part. . \
I I. BACKGROUND
"Sally"I was a fourteen-year-old high school freshman in 2010, and lived
with her mother and her stepfather, Richard Yates. Sally's mother worked the
night shift at a local retail store and was often out of the family home during
overnight hours. During ~his time, Yates would supervise Sally.
At the time, Sally was dating an eighteen-year old upperclassman,
Austin. Yates learned about her relationship with Austin and initially told
Sally that her mother would not approve· of her relationship with an older boy,
threatening to tell her mother about the relationship. He told her that if her
mother found out about the relationship, her boyfriend would go to jail for
being in a relationship with a minor. The two argued for several hours before
Yates escalated his threats, eventually telling Sally that Austin would go to jail
and be "hurt" by other inmates once they found out he had been with a minor.
At some time during the confrontation, Yates told Sally that if she would "do
· something sexual" with him, he would, in exchange, not tell her mother about ' her relationship with Austin.
Following Yates's proposition, Sally eventually decided to "do somethip.g ( sexual" with Yates. At trial, Sally testified that although she had "consented"
. i Consistent with this Court's previous opinion and the parties' briefs, "Sally" is a pseudonym employed in this opinion to protect the minor victim's true identity to the extent possible. r / i/ 2 to having sex with Yates, she felt she had to in order to protect Austin. After
deciding to have sex with Yates, Sally entered his bedroom in the middle of the
night. Sally testified that Yates grabbed some kind of bottle fro:r;n a nightstand,
put his hands on it, and then put his hands down her pants and touched her
genital area. Sally stated that he told her, "It was going to feel good, but that
she wouldn't like it." Yates then positioned Sally so that she was bent over the
end of the bed on her stomach with her feet on the floor. She testified that
Yates took something out of a plastic bag between the mattress and box . . ' springs of his bed and inserted it into her vagina. Sally did not see what the
item was at the time. He then removed the item from Sally's vagina, flipped her
on her back, and had sexual intercourse with her.
. Sally testified . that she told her mother and a friend about the sexual
assault. Her friend ultimately believed Sally was telling the truth, but her
mother did not. In July 2011, Sally asked a friend's mother, Ginger Alexander,
if she could stay with her on nights when Sally's mother was working.
Alexander asked why she would make that request, and Sally told her about
the sexual assault. Alexander encouraged Sally to report the incident to police,
which she did. Local authorities took a statement from Sally and obtained a
search warrant for the Yates's residence. At the residence, local police
recovered a sex toy in a plastic bag from between the mattress and box spring . in Yates's bedroom~ several computers, as well as several other items.
When police confiscated Yates's computers, he requested that he be able
to remove the passwords from the computers in order to assist the police.
3 Police informed him that he would not be able to access the computers and
asked for his password. Yates wrote it down on a business card so ·that his wife
could not see and told the officer, "It's no't what it seems like." The password
was "Toriistight"-Tori being a nickname of Sally's.
Yates went to trial based on these events and a Fulton Circuit Courtjury
convicted him of first-degree rape and first-degree sexual abuse. He was
sentenced to twenty years' imprisonment on the rape charge and five years'
imprisonment on the sexual, abuse charge. Those sentences were set to run
consecutively, for a total of twenty-five years' imprisonment. Yates·then.
appealed his original conviction·to this Court.· In our opinion in Yates v.
Commonwealth, 430 S.W.3d 88~ (Ky. 2014), we held that there was insufficient
evidence to prove first-degree rape, and that an evidentiary error required
. reversal on the first-degree sexual abuse charge .. Therefore, we reversed
Yates's convictions and remanded to the trial court for further proceedings.
Pertinently, we noted:
Because the Commonwealth did not prove the forcible-compulsion element, Appellant's conviction for first-degree rape cannot stand and must be reversed. This means that he may be retried for any . lesser-included offenses that were included in the instructions at . · trial. The trial court, however, only instructed on the lesser offense of unlawful transaction with a minor, not third-degree rape. For that reason, if Appellant is retried, he cannot be convicted of third- degree rape.
Id. at 895.
Following this Court's remand for a new trial, the 9ommonwealth
indicted Yat~s on six charges, four of which were not charged in·the. first trial.
Therefore, in addition to charges of first-degree unlawful transaction with a 4 minor and first-degree sexual abuse, Appellant faced charges in his second
trial for incest, use of a minor in a sexual performance, first-degree unlawful
imprisonment-and, in spite of this Court's explicit directive to the contrary-
third-degree rape. The trial court dismissed the third-degree rape charge and
the jury convicted Yates of the remaining five charges. The jury recommended
a sentence of seventy years, which the trial court imposed. This appeal
followed. We set forth additional facts as necessary below.
II. ANALYSIS
A. Prosecutorial Vindictiveness As noted above, following this Court's remand for a new trial, the
Commonwealth indicted Yates on four charges not charged in the first trial:
incest, use of a minor in a sexual performance, first-degree unlawful
imprisonment, and third-degree rape. Although the third-degree rape charge -
was ultimately dismissed per this Court's opinion remanding, its inclusion
supports Yates's argument of prosecutorial vindictiveness, given that this
Court expressly admonished the Commonwealth that it could not convict Yates
of third-degree rape. See Yates, 430 S.W.3d at 895 ("[I]f Appellant is retried, he
cannot be convicted of third-degree rape.").
On the morning of his second trial, Yates moved the trial court to dismiss . I
his indictment for prosecutorial vindictiveness based on the Commonwealth's
addition of four new charges (all of which could have been charged in the first
trial) after his successful appeal. The Commonwealth responded that this
Court's opinion forced it to reexamine the case from the perspective of consent
5 rather than force. The Commonwealth contended that it had not indicted Yates
on incest, use of a minor in a sexual performance, or unlawful imprisonment in
the first trial because it belie~ed that those charges contained an element of
consent which, it believed, contradicted the forcible-compulsion theory it
pursued in the first trial and would have confused the jury.
-The United States Supreme Court first recognized. prosecutorial
vindictiveness in North Carolina v. Pearce. 395 U.S. 711 (1969). In Pearce, the
Court held that for a judge to impose a more severe sentence after a new trial,
the decision .to do so must "be based. upon objective ir~.formation concerning
identifiable conduct on the part of the defendant occurring after the time of the
original sentencing proceeding." Id. at 726. "Due process oflaw," the Court
made clear, "requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the sentence he ,
receives after a new trial." Id. at 725.
"Generally, a potentially vindictive superseding indictment must add
additional charges or substitute more severe charges based on the same
conduct charged less heavily in the first indictment." United States v. Suarez,
263 F.3d 468, 480 (6th Cir. 2001). Once a defendant establishes that "the ·
prosecutor has some stake in deterring the defendant's exercise of his rights
and ... the prosecutor's conduct was ~omehow unreasonable,' then the ...
court may find that there is a 'reasonable likelihood of vindictiveness' and may
presume an improper vindictive motive." United States v. LaDeau, 734_ F.3d
6 561, 566 (6th Cir. 2013) (brackets omitted) (quoting Bragan v. Poindexter, 249
F.3d 476, 482 (6th Cir. 2001)).
There are two types of prosecutorial vindictiveness: actual and
presumptive. Actual vindictiveness requires "objective evidence that a
prosecutor acted in order to punish the defendant for standing on his legal
rights." United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005) (quoting
United States v. Dupree, 323 F.3d 480, 489 (6th Cir. 2003)). Yates does not
argue that the Commonwealth acted with actual vindictiveness.
lnst_ead, he argues that the Commonwealth's actions were presumptively
vindictive. "Given the severity of such a presumption, ... which may operate
in the absence of any proof of an improper motive and thus may block a
legitimate response to criminal conduct," we have made clear that _this Court
will presume vindictiveness "only in cases in which a reasonable likelihood of
vindictiveness exists." Commonwealth v. Leap, 179 S.W.3d 809, 813 (Ky. 2005)
(quoting United States v. Goodwin, 457 U.S. 368, 373, (1982)).
The Commonwealth's argument againstYates's prosecutorial
vindictiveness claim is two-fold. First, it argues that this Court, in its opinion
remanding Yates's case for retrial, contemplated charges other than the o~es
contained in the original indictment. As we noted above, in that opinion, we
stated:
Because the Commonwealth did not prove the forcible-compulsion element, Appellant's conviction for first-degree rape cannot stand and must be reversed. This means that he may_be retried for any lesser-included offenses that were included in the instructions at trial. The trial court, however, only instructed on the lesser offense of unlawful transaction with a minor, not third-degree rape. For 7 that reason, if Appellant is retried, he cannot be convicted of third- degree rape.
Yates, 430 S.W.3d at 895. Given that the Court qualified "lesser-included
offenses" as those "that were included in the instructions at trial," the Court
was not commenting on whether additional charges not presented in the first
indictment were appropriate in the second. This is not-to say that additional
charges could not have been added in the second trial, only that, in making the
statement above, the Court was not commenting thereon.
The Commonwealth's sec0nd argument is that this Court's holding that
the element of forcible compulsion was not present in Yates's conduct
prompted it to "re-examine the case, regarding the act as consensual rather
than forced.~ The Commonwealth added four new charges following Yates's
successful appeal to this Court-two Class Band two Class D felonies.2
Although none of the addit.ional charges were of a higher class than the original
charges, they carried the potential to (and actually did) increase Yates's original
sentence _by forty-five years.
As previously noted, the Commonwealth argued that it added these
charges after this Court's opinion forced it to re-examine Yates's prosecution,
focusing on consent. However, that contention is belied by the
Commonwealth's 'indicting Yates for unlawful transaction with a'minor during
his first trial. During that trial, the jury was instructed on both first-degree
.rape and unlawful transaction with a minor, the primary distinguishing factor ',
2 Including third-degree rape, which, as noted above\ was dismissed by the trial court. 8 between the two being that the fo~mer require~ forcible compulsion, while the
latter implies consent. This point was emphasized by the Commonwealth in its
closing argument. As the prosecutor explained, if the jury. believed Yates had
used force, it could convict him of first-degree rape; however, if the jury
believed Sally had consented to the illegal act, it could convict Yates of
unlawful transaction with a minor. Specifically, the prosecutor argued in
closing: "Either rape first or unlawful transaction with a minor, you can't do
both, you must do one of two." Therefore, it is clear that the Commonwealth
had considered and charged Yates with,crimes in which the victim consented
to. the sexual activity in the first trial.
Furthermore, the issue of consent was either immaterial .or would have
been a defense to the new charges brought by the Commonwealth. First, as to
incest, we note that Sally was less than eighteen years of age. Therefore, her
consent was irrelevant to the elements of the charge. Next, consent is
irrelevant to the elements of the crime of u~e of a minor in a sexual
performance. The crime is the same whether the minor was forced or
consented. As to the unlawful imprisonment cha_rge, the Commonwealth is
. mistaken in any analysis finding a consensual element to the crime. This
crime requires that the victim be knowingly and unlawfully restrained-and
KRS 501.010(2) defines "res.train" as confining another person "without
consent." Finally, Yates was also indicted for third-degree rape, a crime for
which this Court had specifically said he _could not be properly convicted on
retrial. While the trial court dismissed this charge, consent was likewise
9 immaterial to its elements. It is impossible to understand the Commonwealth's
analysis that led it to conclude the new charges contained elements of consent.
Therefore, the Commonwealth failed to present a viable analysis as to its
reasoning behind bringing the four new charges.·
We note that a prosecutor "simply may come to realize that information
possessed by the State has a broader significance," Goodwin, 457 U.S. at 381,
and that would not be grounds for a claim of prosecutorial vindictiveness.
However,
once a trial begins-and certainly by the time a conviction has been obtained-it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Id. Even the fact that charges added after a successful appeal are "much more
likely tc::i be improperly motivated" does not necessarily preclude them entirely.
In some cases, new information may have come to light, properly necessitating
new charges or a change in strategy. Those are simply not the facts here. The
new charges added after Yates's successful appeal were based on no new
evidence or testimony, and the Commonwealth's reasoning for adding the new
charges is contradicted by its strategy during the first trial. This situation,
then, presents a reasonable likelihood of vindictiveness. Therefore, we reverse
Yates's convictions for incest, use of a minor in a sexual performance, and
unlawful imprisonment, and remand to the trial court to dismiss these
charges. However, because unlawful transaction with a minor and first-degree 10 sexual abuse were both charged in the origirtal indictment and, thus, were not
the result of prosecutorial viridictiveness, we address Yates's remaining claims
of error as applied to those convictions.
B. Directed Verdict Yates claims that the trial court erred by not granting a directed verdict
on the charge of unlawful transaction with a minor. He concedes that the
issue is not preserved, and asks this Court to review the trial court's decision
for palpable error. RCr 10.26; McCleery v. c;ommonwealth, 410 S.W.3d 597,
606 (Ky. 2013) (We will not reverse for palpable error unless "it can be . I determined that manifest injustice, i.e., a repugnant and intolerable outcome, I
resulted from that error.").
The Commonwealth, however, contends that by making a motion for
directed verdict on the unlawful transaction with· a minor charge at the end of
the first trial, but not doing so at the end of the second trial, Yates waived the
sufficiency of the evidence issue. To support that contention, the _
Commonwealth relies on Chavies v. Commonwealth, 354 S.W.3d 103, 113 (Ky.
2011). However, the Commonwealth's reliance is misplaced. In Chavies, the
defendant "conceded that the Commonwealth's proof was sufficient to survive a
motion for a directed verdict," and, thus, Chavies affirmatively waived his
objection. But here, no such concession occurred-Yates merely did not move
for adirected verdict at the close of the second trial. Although the issue was J not preserved for appeal, Yates did not affirmatively waive it in the trial court
as in Chavies. Thus, we will review this claim for palpable error as requested.
11 When reviewing achallenge to a trial court's denial of a motion for . directed verdict, this Court construes all evidence in the light most favorable to (
the Commonwealth. Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).
In doing so, we must draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186,
187 (Ky. 1991). "On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a jury to find
guilt, only then the defendant is entitled to a directed verdict of acquittal." Id.
"A person is guilty of unlawful transaction with a minor in the first
degree when he or she induces, assists, or causes a minor to engage in ...
illegal sexual activity." KRS 534.060(1). As we have explained: )
"To induce" signifies a successful persuasion; that the act has been effective and the desired result obtained, and that "to engage" denotes action and means to employ one's self; to take part in. Thus, to complete the offense, the minor must consent to and actively participate in the activity.
Combs v. Commonwealth, 198 S.W.3d 574, 578 (Ky. 2006).
Yates concedes Sally testified that ·she "consented" even though she did
not want to. Nonetheless, he contends that her "consent" was based on
duress. Sally felt threated to have sex with him, he argues, because he told her
that unless she did so, he would tell her mother about her relationship with
her eighteen-year-old boyfriend.
Yates cites to Combs to support his argument. There, this Court held
that the "consent" element of first-degree unlawful transaction with a minor
was not-met where the victim "'did not want him to do it,' [and] she did not
12 consent to and actively participate in" the illegal sexual activity. Id. This case.
is easily distinguishable from Combs, though, because the victim herself
testified that she had indeed "consented" to the sexual act. Based on her
testimony, both as to consent and.participation, a reasonable juror could find
Yates guilty of first-degree unlawful transaction with a minor. Therefore, the ' trial court did not err in refusing to direct a verdict of acquittal on that charge.
C. Double Jeopardy-Retrial of Unlawful Transaction with a Minor At Yates's first trial, the jury was instructed on first-degree rape and, in
the alternative, first-degree unlawful transaction with a minor. The unlawful
transaction with a minor instruction immediately followed the first-degree rape
instruction and was separated by "or" at the bottom of the rape instruction.
The unlawful transaction with a minor instruction began, "If you find the
Defendant Not Guilty under Instruction No. 5 of Rape First-Degree, you will
find the Defendant guilty of First-Degree Unlawful Transaction with a Minor
under this instruction if [the listed elements are satisfied]." The trial court also
explained to the jury that "there's an 'or~ at the bottom of that page because five
and six are coupled together." Again, the Commonwealth, too, emphasized this
point in its closing: "Either rape first or unlawful transaction with a minor, you
can't do both, you must do one of two." -The jury found Yates guilty of first-
degree rape and did not complete the unlawful-transaction verdict form.
When the trial court entered its final judgment, the court dismissed the
unlawful transaction with a minor charge. Four days later, the trial court
issued a written order, finding: ·
13 [T]he Jury having found the Defendant guilty of Rape in the First Degree and Sexual Abuse in the First Degree, but finding the Defendant not guilty of Unlawful Transaction with a Minor in the First Degree, and the Court having heard Counsel, and the Court being otherwise sufficiently advise; IT IS HEREBY THE ORDER OF THIS COURT that the Defendant is found not guilty of Count III of the Indictment, Unlawful Transaction with a Minor in the first Degree by the findings of the Jury in the above styled action.
After this Court's reversal on Yates's first direct appeal, the"
Commonwealth re-indicted Yates on unlawful transaction with a minor. Yates
objected, arguing that the jury found him not guilty of the charge and pointing
to the trial court's order stating as much. Thu~, re-indicting him of unlawful
transaction with a minor,-Yates contended, violated double jeopardy.
The trial court rejected Yates's argument, ruling that, based on this
Court's opinion, the unlawful-transaction charge was a lesser-included offense
that this Court authorized for retrial. We do not take issue with that
. interpretation. As noted above, we stated in Yates's first direct appeal that on
remand he could be retried for "any lesser-included offenses that were included
in the instructions at trial"-the only lesser-included offense included in the
instructions, we noted, was unlawful transaction with a minor. After rejecting
Yates's double-jeopardy argument, the trial court set aside its order finding
him not guilty of unlawful transaction with a minor and denied his motion to
dismiss that charge.
The Double Jeopardy Clause of the Fifth Amendment mandates that no
person shall "be subject for the same offence to be twice put in jeopardy of life
or limb." U.S. Const, amend. V; see also Ky. Const. § 13. We have held that
the Fifth.Amendment and Section 13 of the Kentucky Constitution are 14 "identical in ... their prohibition against double jeopardy." Jordan v.
Commonwealth; 703 S.W.2d 870, 872 (Ky. 1985). The General Assembly
codified this principle in KRS 505.040, which states in part:.
Although a prosecution is for a violation of a different statutory provision from a former prosecution or for a violation of the same provision but based on different facts, it is barred by the former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside, or a determination that there was insufficient evidence to warr;:tnt a conviction ...
or
(2) The former prosecution was terminated by a final order or judgment which has not subsequently been set aside and which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution ....
Because the trial court subsequently' set aside its order acquitting Yates of
unlawful transaction with a minor, under subsection (2), double jeopardy did
not bar Yates's being retried on that charge.
In Acosta v. Commonwealth, 391 S.W.3d 806 (Ky. 2013), this Court was
presented with a situation similar to Yates'~. There, the trial court instructed '
the jury as to two different theories of guilt on criminal abuse. Id. One was
characterized as direct abuse, and the other, permitted abuse. Id. As here, the
two theories were presented in separate, alternative instructions. Id. After the I
jury found Acosta guilty under the first instruction without reaching the
second, this Court held on appeal that the first instruction was unsupported
by the evidence. Id. at 820. · In remanding the case, although we did not
permit retrial on the direct-abuse theory, we did on permitted abuse "because
15 the jury never reached that question, and [Acosta] was not entitled to a
directed verdict of acquhtal" under that theory. Id. Here, as there, the jury
never reached the unlawful-transaction question, so his retrial on that charge
was appropriate.
Yates_, however, contends that his rape conviction during the first trial
operated as an implied acquittal on the 'charge of unlawful transaction with a
. minor. To support his argument, he cites Green v. Uftited States, 355 U.S. 184,
190 (1957). In Green, the United States Supreme Court held that conviction of
one offense operates, in some circumstances, as an implied acquittal of
another. Id at 214. However, Yates's case is distinguishable from Greenin
that Green was originally convicted of the lesser offense of second-degree
murder-the United States Supreme. Court. held, then, that he could not be
subsequently tried for the greater offense of first-degree murder. Here,
unlawful transaction with a minor was an alternative offense on which the jury
could have reached a conclusion, but did not. "[T]he concept of acquittal by
implication climbs up the ladder,_ not down." McGinnis v. Wine, 959 S.W.2d
437, 439 (Ky. 1998).
"The established test for determining whether a trial court's ruling
constitutes an acquittal depends 'on whether the ruling of the judge, whatever
its label, actually represents a resolution, correct or not, of some or all .of the
factual elements of the.offense charged."' Walker v. Commonwealth, 288
S.W.3d 729, 743 (Ky. 2009) (quoting ~nited States v. Martin Linen Supply Co.,
· 430 U.S. 564, 571 (1977)); As the United State Supreme Court held in Martin
16 Linen, a trial court's determination of the sufficiency of the evidence resolves
the factual elements of the offense charged. 430 U.S. at 571-72. Here, in
contrast, the trial court made no findings of fact and did not discuss the
sufficiency of the evidence. "Both procedural dismissals and substantive
rulings result in an early end to ttial, but ... the dou'J?le jeopardy I
consequences of each differ." Evans v. Michigan, 568 U.S. 313, 319 (2013)
(citing United States v.. Scott, 437 U.S. 82, 91 (1978)). "[A] merits-related ruling
concludes proceedings absolutely." Id. "In contrast, a 'termination of the.
proceedings against [a defendant] on a basis unrelated to factual guilt or
innocence of the offence of which he is accused,' . . . i.e., some procedural
ground, does not pose the same concerns, because no expectation of finality
attaches to a properly granted mistrial." Id. at 319-20 (quoting Scott, 437 U.S.
at 98-99).
Because the Jury did not make a finding on unlawful transaction with a
minor, the trial court's acquittal, whether in error or not, was a procedural
dismissal-not a substantive ruling. Because it subsequently, set that
. procedural dismissal aside, Yates's reindictment on unlawful transaction with
a minor was not barred by double jeopardy.
D. Double Jeopardy-IndiCtments for Both Unlawful Transaction with a Minor and Se_xu~l Abuse ~ Yates next argues that. being charged with both unlawful transaction
with a minor and sexual abuse also violated the constitutional proscription
against double jeopardy. He contends that both charges were based on the
same conduct, and [u]nder both the U.S. Constitution and the Kentucky
17 Constitution, double jeopardy prohibits multiple punishments for the same .
offense. See United States v. Halper, 490 U.S. 435, 448-49 (1989); see also
Hourigan v. Commonwealth, 962 S.W.2d 860, 862 (Ky. 1998). He concedes that . . . he did not adequately preserve this issue and asks this Court for palpable-error
review. See RCr 10.26.
This Court ~dopted what is known as the "the Blockburger test" to resolve
double-jeopardy claims arising from multiple offenses. See Commonwealth v.
Burge, 947 S.W.2d 805, 811 (Ky. 1996). In Blockburger v. United States, 284
U.S. 299 (1932), the United States Supreme Court held that "[w]here tpe same
act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact whic:p. the other does not." Id.
at 304; see also Burge, 947 S.W.2d at 809.
Yates, however, contends that this Court departed from Burge and
Blockburgerin Hall v. Commonwealth 337 S.W.3d 595 (Ky. 2011). There, we
rejected Hall's request for a "strict same-elements te~t". in favor of a facts-based
approach. Id. at 598. But we utilized that test to determine if a jury can be
instructed on lesser-included offenses-·not for double-jeopardy purposes. Id.
at 607. In fact, we expressly· limited our facts-based approach to "determining
whether a trial court can properly instruct a·jury on an uncharged offense as a
lesser-include offense of a charged offense." Id.
Furthermore, as the Commonwealth notes, we have applied a strict
statut9ry-elements approach for double-jeopardy purposes on many occasions
18 since Hall. See, e.g., Early v. Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015);
Biederman v. Commonwealth, 434 S.W.3d 40, 43 (Ky. 2014). Yates's argument
that we have departed from Burge is misplaced.
"A person is guilty of sexual abuse in the first degree when being twenty-
one (21) years old or more, he or she subjects another person who is less than
sixteen (16) years old to sexual contact .... " KRS 510.1 lO(l)(c)(l). "A person
is guilty of unlawful transaction with a ml.nor in the first degree when he or she
knowingly induces, assists, or causes a minor to engage in ... [i]llegal sexual
activity.". KRS 534.060(1).
Each requires an element of proof that the other does not. The unlawful-
transaction statute requ!res an element of proof that is not found in the sexual-
abuse statute: proof that the defendant induced,. assisted, or caused the minor . . I
to engage in the act. The sexual-abuse statute, on the other hand, requires an
element of proof not .found in .the unlawful-transaction . statute: proof that the
defendant is twenty-one years or older and that the victim is less than sixteen
years old. Applying the Blockburger test, Yates was not subjected to double
jeopardy by being convicted of both crimes.
Additionally, Yates similarly argues that the sexual-abuse and unlawful-
transaction instructions violated his right to be free from double jeopardy
because the trial court did not properly differentiate the act ideptified as sexual
abuse from the act identified as unlawful transaction with a minor. This claim
is unpreserved as well, and Yates requests palpable-error review.
19 The Blockburger test also provides the answer here; and that answer is l
also contrary to Yates's position. "If the legislature wants to impose multiple .
punishment for the same offense, it rriay do so." McNeil v. Commonwealth, 468
S.W.3d 858, 866-67 (Ky. 2015) (citing Garrett v. United States, 471 U.S. 773
(1985)). The frial court did not err in so instructing the jury.
E. Vouching Testimony During trial, Sally testified that when she first told her mother about
Yates's actions, her mother did not believe her. Later, she testified, her mother
began believing her. When Sally's mothe~ took the stand, the Commonwealth
asked, "Do you believe her now?" She answered, "I do." Yates did not object to \
this exchange and again asks for palpable-error review. RCr 10.26.
Yates is correct that when a witness vouches for another witness, that
testimony "remove[s] the jury from its historic function of assessing credibility"
and is error. Newkirk v. Commonwealth, 937 S.W.2d 690, 696 (Ky._ 1996).
However, no manifest injustice arose from Sally's or her mother's testimony.
"[I]f upon consideration of the whole case this court does not believe there is a
substantial possibility that the result would have been any different, the
irregularity will be held nonpredjudicial." Schoenbachler v. Commonwealth, 95
S.W.3d 830, 836 (Ky. 2003) (internal citation omitted).
There is no substantial possibility that the result would have been any .·1 different had Sally's mother not vouched for Sally's credibility. At trial, Sally
testified to the graphic nature ofYates's sexual assault. That information was
the same information she gave to the police following the incident, and the
20 police corroborated that information by locating the sex toy that Yates used on
her precisely where she told them it would be. The jury also heard that Yates's
computer password was "Toriistight"-Tori being Sally's nickname. The
improper vouching testimony paled in comparison to the compelling evidence of
Yates's guilt. Although Sally's mother's testimony vouching for Sally's veracity
was error, that error was harmless and certainly not palpable.
III. CONCLUSION For the foregoing reasons, the judgment of the Fulton Circuit Court in
this matter is affirmed in part and reversed in part. We affirm Yates's
convictions and corresponding sentences totaling twenty-five years for unlawful
transaction with a minor and sexual abuse, and remand to the trial court to
dismiss his convictions of incest, use of a minor in a sexual performance, and
unlawful imprisonment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen ,Kallaher Schmidt Department of Public Advocacy
COUNSEL FOR THE COMMONWEALTH:
Andy Beshear Attorney General of Kentucky
Micah Brandon Roberts Assistant Attorney General