Released for Publication June 4, 2015.
ON APPEAL FROM BARREN CIRCUIT COURT. HONORABLE PHILLIP R. PATTON, JUDGE. NO. 2013-CR-00055.
COUNSEL FOR APPELLANT: Jason Apollo Hart, Department of Public Advocacy.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Jeanne Deborah Anderson, Assistant Attorney General.
A Barren County Circuit Court jury convicted Jose Lopez (Lopez) of: first-degree unlawful transaction with a minor, third degree rape, incest, and first-degree sexual abuse. The parties subsequently agreed that the convictions for rape and sexual abuse violated Lopez's right to be free from being placed in jeopardy twice for the same criminal activity and dismissed those convictions. The trial court, for reasons discussed below, sentenced Lopez to a total of forty (40) years' imprisonment on the remaining two convictions.
Lopez appeals as a matter of right under Ky. Const. § 110(2) (b) arguing that the trial court committed reversible error: (1) by admitting into evidence Lopez's statement to a detective that was translated by a non-certified translator; (2) by admitting into evidence Lopez's statement and the detective's testimony regarding that statement; (3) by prematurely taking the sentencing determination away from the jury; and (4) by denying Lopez's motion to exclude KRE 404(b) prior bad acts evidence. Having reviewed the record and the parties' arguments, we affirm.
Lopez, who was born in Honduras, traveled to the United States illegally where he married Johanna Lopez (Mrs. Lopez). Mrs. Lopez had a daughter from a previous relationship, Jane, and the couple had three children of their own. The family resided in New York prior to moving to Glasgow, Kentucky in May 2010, where they lived until May 2011, when they moved to Pennsylvania.
Mrs. Lopez testified that in February 2012, while the family was living in Pennsylvania, Lopez and Jane admitted they had been having a sexual relationship for several years. The sexual conduct began in New York when Jane was twelve or thirteen and continued while the family lived in Kentucky in 2010-2011, when Jane was fifteen. After learning of the relationship, Mrs. Lopez and the children returned to Glasgow, Kentucky, without Lopez, who returned to New York.
After returning to Kentucky, Mrs. Lopez came into contact with Kentucky State Police Detective Tim Adams (Detective Adams), who investigated her allegations of rape and sexual abuse regarding her daughter. At the urging of Detective Adams, Mrs. Lopez recorded several phone conversations she had with Lopez, during which Lopez admitted that he had sex with Jane multiple times.
Based on the preceding, Lopez was arrested and extradited to Kentucky where Detective Adams and a translator, Eddie F. Melgar, conducted a recorded interview. Melgar testified at trial that Detective Adams read Lopez his Miranda  rights, which Melgar translated for Lopez. Melgar also testified about his experience as an interpreter; that Lopez understood and waived his Miranda rights; that he believed Lopez answered questions voluntarily; and that his translations were true and accurate. Melgar did not testify regarding the contents of Lopez's statement; however, Detective Adams testified that, based on Melgar's translations, Lopez had admitted to having sex with Jane. Furthermore, over Lopez's objection, the Commonwealth played his recorded statement for the jury.
Based on the preceding, as well as testimony from Jane, the jury convicted Lopez as set forth above. During penalty phase deliberations, and before the parties agreed to dismiss the convictions, the jury was able to reach a verdict on the third-degree rape and first-degree sexual abuse charges; however, after approximately one hour of deliberations, the jurors indicated they could not reach a verdict on the sentences for the remaining two convictions. Pursuant to the Kentucky Rule of Criminal Procedure (RCr) 9.84 and Kentucky Revised Statute (KRS) 532.055(4) the court
then rendered sentences of twenty years' imprisonment each on the unlawful transaction with a minor and incest convictions, with the sentences to run consecutively for a total of forty years. ...