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Rudd v. Commonwealth

Supreme Court of Kentucky

September 26, 2019

JASON RUDD APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM LIVINGSTON CIRCUIT COURT HONORABLE CLARENCE A. WOODALL III, JUDGE NO. 16-CR-00032

          COUNSEL FOR APPELLANT: Shannon Renee Dupree Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Newberg II Assistant Attorney General

          OPINION

          VANMETER, JUSTICE

         In April 2018, Jason Rafuss Rudd was convicted of first-degree sexual abuse and of being a first-degree persistent felony offender ("PFO1"). He was sentenced to twenty years' imprisonment. Rudd appeals as a matter of right[1]and raises two issues on appeal: (1) that he was denied a unanimous verdict because the jury was only instructed on one count of sexual abuse, when two separate allegations were introduced at trial, and (2) that he is entitled to a new trial because the jury pool was tainted and should have been excused. After an extensive review of the record, we affirm Rudd's conviction and sentence.

         I. Factual and Procedural Background.

         Rudd and his ex-wife have four children together who visited Rudd every other weekend. In March 2016, Rudd's sixteen-year-old daughter, S.R., was at Rudd's residence, which Rudd shared with his parents and two brothers. While watching television, S.R. fell asleep in Rudd's bed wearing a t-shirt, underwear, and basketball shorts. Rudd returned home from work and got into his bed, fully dressed. At 4:00 a.m., S.R. felt Rudd's hands on her inner thigh and stomach. She then felt Rudd's penis against her as he thrusted his hips against hers and attempted to remove her shorts. Rudd then got up from bed and went to the bathroom. At approximately 6:00 a.m., Rudd started to touch S.R. again. Rudd became more aggressive and attempted to remove her shorts as he thrusted against her. S.R. rolled over when she thought she was "not going to be a virgin anymore." She then felt Rudd's "genitalia" touching her vaginal area. Eventually, Rudd got up again and went to the bathroom. S.R. got up and went to a different bathroom where she found a foreign fluid on the outside of her clothing and underwear. S.R. reported the abuse to her mother and step-father the following Monday.

         Police interviewed Rudd one week later, and he admitted to sleeping in the same bed as S.R. that night, and claimed he may have had "wet dreams, " but denied sexually abusing her. Rudd was indicted on one count of first-degree sexual abuse and of being a PFO1. In April 2018, Rudd was convicted and sentenced to twenty years' imprisonment. This appeal followed.

         II. Rudd Waived any Unanimous Verdict Error.

         Rudd argues that the jury instructions given at trial were duplicitous, in violation of the Kentucky Constitution's requirement of a unanimous verdict. Ky. Const. § 7. The Commonwealth argues that Rudd waived this argument by submitting virtually identical jury instructions[2] to those he now cites as reversible error. We agree.

         Rudd was indicted on only one count of first-degree sexual abuse. KRS[3] 501.110(d). However, at trial, S.R. described two separate events that would constitute sexual abuse[4]-one occurring at 4:00 a.m. and another at 6:00 a.m.

         The instruction given by the trial court stated, in relevant part:

You will find the Defendant Jason R. Rudd guilty of First[-]Degree Sexual Abuse under this Instruction if, and only if, you believe from the evidence beyond a ...

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