CORRECTED: JULY 17, 2013
Final Date May 16, 2013
ON APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE ANDREW C. SELF, JUDGE NO. 10-CR-00401
COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Kenneth Wayne Riggs Assistant Attorney General Office of the Attorney General Office of Criminal Appeals
A Christian Circuit Court jury found Appellant, Francisco Gilberto Rodriguez, guilty of Class A felony incest. For this crime, Appellant received a sentence of thirty years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that: (1) the trial court erred by failing to grant his motion for a directed verdict because there was insufficient evidence of the victim's age at the time of the offense, (2) the trial court issued erroneous jury instructions on his incest charge that denied him a unanimous verdict, and (3) retrial of the incest charge would violate his rights guaranteed by the Fifth Amendment's Double Jeopardy Clause.
Because Appellant was denied his right to a unanimous verdict due to the instruction given to the jury in this case, we reverse Appellant's conviction and sentence and remand this case for further proceedings consistent with this opinion.
Appellant was indicted for having sexual intercourse with his daughter "Patty, " a minor under the age of twelve. Patty testified that Appellant began having sexual intercourse with her in 2005 when she was eight years old and continued to do so on a regular basis until July 2010 when Appellant was arrested. Although Appellant originally admitted in a taped confession to - having sexual intercourse with his daughter, he denied having sex with Patty when he testified at his trial. He was indicted for Class A felony incest (specifically, "Incest, Victim under 12 years of Age") on August 20, 2010.
During the guilt phase, the trial court provided the jury with instructions on the incest charge that did not require a determination of Patty's age at the time of the alleged offense. Thereafter, the jury found Appellant guilty of incest under the instructions given and, during the penalty phase, it determined that Patty was under the age of twelve at the time of the offense by putting a check mark on the verdict form for offenses against a victim under twelve, Class A Incest. However, it did not determine a sentence on this verdict form which had a range from twenty to fifty years or life if the victim was under twelve. Following direction from the court, they returned to deliberate and then recommended a thirty-year sentence that the trial court adopted.
Further facts will be developed as required.
A. Directed Verdict
Appellant first asserts that the trial court erred in failing to grant his motion for a directed verdict because the Commonwealth presented insufficient evidence of Patty's age. In his reply, however, he admits this argument is unpreserved because he failed to object on the specific grounds mentioned above. Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004) ("Kentucky appellate courts have steadfastly held that failure to [object on specific grounds on a motion for a directed verdict] will foreclose appellate review of the trial court's denial of the directed verdict motion."). Thus, we review for palpable error. RCr 10.26.
We therefore ask whether sufficient evidence of Patty's age was presented to support Appellant's conviction for Class A felony incest:
[T]he standard of review required by the Due Process Clause with respect to the sufficiency of the evidence to support a criminal conviction ... is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Potts v. Commonwealth, 172 S.W.3d 345, 349 (Ky. 2005) (citing Jackson v. Virginia, 433 U.S. 307, 318-319 (1979)). This standard "looks to whether there is sufficient evidence which, if credited, could support the conviction . . . ." Potts, 172 S.W.3d at 349 [citing Schlup v. Delo, 513 U.S. 298, 330 (1995) (emphasis added)).
Class A felony incest is defined by KRS 530.020, which states, in pertinent part: "A person is guilty of incest when he or she has sexual intercourse . . . with a person whom he or she knows to be [a] . . . descendant . . . ." Incest is "a Class A felony if . . . [c]ommitted on a victim less than twelve years of age . . . ."
After reviewing the evidence in a light most favorable to the Commonwealth, we find that it was sufficient to support a conviction for Class A felony incest. Despite the fact that Appellant testified otherwise, he admitted in a taped confession to having vaginal intercourse with his daughter. As to the victim's age, Patty testified that Appellant began having sexual intercourse with her when she was eight years old and continued to do so until he was arrested. Thus, any rational trier of fact could have found beyond a reasonable doubt that Patty was under the age of twelve when Appellant began having sexual intercourse with her.
B. Unanimous Verdict
Appellant next asserts that his conviction violated due process because the jury's verdict was not based on a theory of guilt in which the Commonwealth proved all the required elements of Class A felony incest beyond a reasonable doubt. Specifically, Appellant argues that the jury's instruction failed to require a unanimous determination beyond a reasonable doubt that Patty was under twelve years old at the time of the offense. As this issue is also unpreserved, we again review for palpable error under RCr 10.26.
KRS 530.020, our incest statute, was amended on July 12, 2006. Prior to these amendments, the statute did not include the age of the victim at the time of the offense and defined the crime as a Class C felony. However, the July 12, 2006 amendments divided incest into separate categories of crimes based on the victim's age.
Under the amended version of KRS 530.020, Appellant was guilty of Class A felony incest if he had "sexual intercourse . . . with a person whom he . . . [knew] to be [a] . . . descendant" and the crime was "[committed on a victim less than twelve (12) years of age . . . ." Conversely, he was guilty of Class B felony incest if he had "sexual intercourse . . . with a person whom he . . . [knew] to be [a] . . . descendant" and the crime was committed "[o]n a victim who [was] . . . [l]ess than eighteen (18) years of age . . . ." Finally, he was guilty of Class C felony incest if he had "sexual intercourse . . . with a ...