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Yates v. Commonwealth

Supreme Court of Kentucky

February 15, 2018



          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



         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. BACKGROUND

         "Sally"[1] 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 this 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 something sexual" with Yates. At trial, Sally testified that although she had "consented" 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 from 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. 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 not 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 Pulton Circuit Court jury 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 883 (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 Commonwealth indicted Yates 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 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 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 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 believed 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 information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726. "Due process of law, " 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 somehow 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 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 ...

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