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Ruiz v. Commonwealth

Supreme Court of Kentucky

May 14, 2015

NERY J. RUIZ, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

Released for Publication October 29, 2015.

MODIFIED: October 29, 2015.

ON APPEAL FROM CHRISTIAN CIRCUIT COURT. HONORABLE JOHN L. ATKINS, JUDGE. NO. 13-CR-00004.

COUNSEL FOR APPELLANT: Allison E. Coffeen.

COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Taylor Allen Payne, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Rosa Ramsey Groves.

All sitting. Minton, C.J., Abramson, and Noble, JJ., concur. Keller, J., dissents. Cunningham, J., dissents by separate opinion in which Barber, J., joins.

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OPINION

VENTERS, JUSTICE.

Appellant, Nery Ruiz, appeals from a judgment of the Christian Circuit Court convicting him of first-degree sexual abuse and first-degree sodomy. As grounds for relief Appellant contends that (1) flawed jury instructions and a duplicitous indictment violated his right to a unanimous verdict; and (2) the Commonwealth improperly elicited testimony from a police officer which impermissibly bolstered the credibility of the victim.

Because the instructions given in this case denied Appellant his constitutional right to a unanimous verdict, we vacate the judgment and remand for a new trial. Because the bolstering issue may arise upon retrial, we also address that issue on the merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant is the stepfather of " Linda," [1] who was six years old during the relevant

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time frame of July 1, 2012, to November 25, 2012. During that time, Linda's mother, who is Appellant's wife, was deployed overseas with her Army unit. Linda and her younger sister resided with Appellant, their grandmother, and their fifteen-year old aunt. On November 28, 2012, Linda told her grandmother and aunt that Appellant had, on several occasions, subjedted her to various forms of sexual contact. Linda's grandmother and aunt took her to be examined at a nearby Army hospital. At the hospital, they met with police officers Mike Havens and Ben Walden of the Oak Grove (Kentucky) Police Department.

Based upon Linda's allegations, Appellant was indicted on three counts of sexual abuse (KRS 510.110) and three counts of first-degree sodomy (KRS 510.070). At trial, Linda testified that on many occasions within the five-month period, Appellant took her into his bedroom and subjected her to various forms of sexual contact, including anal sodomy, forcing her to perform oral sodomy on him, and forcing her to touch his penis. Officer Havens testified about the demeanor of Linda and her family when he met them at the hospital. Appellant testified at the trial and denied all of the allegations. He suggested that his mother-in-law (Linda's grandmother) disliked him, and for that reason she coached Linda to make the allegations.

At the conclusion of the evidence, the trial court submitted instructions to the jury on one count of first-degree sexual abuse for forcing Linda to touch his penis, one count of sodomy for penetrating Linda anally, and one count of sodomy for having Linda perform oral sodomy on him. The jury acquitted Appellant of anal sodomy, but convicted him of the other two crimes. Consistent with the jury's recommendation, Appellant was sentenced to imprisonment for twenty years. This appeal followed.

II. UNANIMOUS VERDICT/" DUPLICITOUS INDICTMENT" ISSUES

Appellant contends that the jury instructions given in the case deprived him of the constitutional right to the verdict of a unanimous jury, and, further, that both counts of the indictment were " duplicitous" because they each charged a single crime out of numerous indistinguishable allegations, leaving him with " no adequate notice of the charges that he needed to defend himself against." He also contends for the same reason that the jury instructions, which mirrored the charges of the indictment, were duplicitous. Appellant concedes that these issues are not preserved but requests that we undertake review under the manifest injustice standard contained in RCr 10.26.[2]

A. Unanimous Verdict

The two jury instructions under which Appellant was convicted stated as follows:

Instruction No. 5 [first-degree sexual abuse]
You will find the Defendant guilty of First Degree Sexual Abuse 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 between July 1, 2012, and November 25, 2012 and

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before the finding of the indictment herein, he subjected the victim to sexual contact involving the victim's hand on his penis and the victim touching his penis with her hand;
AND
B. That at the time of such conduct the victim was less than 12 years of age.
Instruction No. 6 [first-degree sodomy]
You will find the Defendant guilty of First Degree Sodomy 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 between July 1, 2012, and November 25, 2012 and before the finding of the indictment herein, he engaged in deviate sexual intercourse involving her mouth on his penis.
AND
B. That at the time of such conduct the victim was less than 12 years of age.

Significantly, as the crimes are phrased in these instructions, the jury is not directed to consider a specific, uniquely identifiable event (such as, at a particular place or time, near a notable date, while wearing particular clothing, or while attending a particular birthday or other such event, etc.). Instead, the instructions, without any other particularized distinction, broadly refer to the five month period of July 1, 2012, and November 25, 2012. Such phrasing poses no problem when the evidence itself relates only to a single, unambiguous occurrence; but when the evidence equally suggests the commission of two or more similar crimes, the potential for unanimous verdict problems arise.

Citing to our recent case Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013), Appellant contends that his constitutional right to a unanimous verdict was violated because at trial, the victim testified to multiple indistinguishable instances of sexual abuse and multiple indistinguishable instances of sodomy as having occurred during the relevant time period, and so there is no assurance that each of the jurors were focused upon the same occurrence when they cast their respective guilty votes.

" Section 7 of the Kentucky Constitution requires a unanimous verdict." Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). A violation of this provision may occur in several ways; however, as relevant here and as we explained in Johnson, a general jury verdict based upon a single instruction convicting a criminal defendant of a crime when two or more separate instances of that single crime were presented at trial violates the requirement of a unanimous verdict. 405 S.W.3d at 449. In Johnson, the victim suffered two bone fractures at different times, either of which could have supported a conviction of first-degree criminal abuse. The defendant in Johnson was convicted of criminal abuse under a single crime instruction. We held that a unanimous verdict violation occurred because it was entirely possible that some jurors voted for a guilty verdict based upon one fracture, while other jurors voted for a guilty verdict upon the other. The clear import of Johnson is that a verdict ...


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