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
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
rightand 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.
Factual and Procedural Background.
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.
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
Rudd Waived any Unanimous Verdict Error.
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 to those he now cites as reversible error.
was indicted on only one count of first-degree sexual abuse.
501.110(d). However, at trial, S.R. described two separate
events that would constitute sexual abuse-one occurring at
4:00 a.m. and another at 6:00 a.m.
instruction given by the trial court stated, in relevant
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 ...