CRIMINAL LAW – Crime, pattern of criminal abuse, range of dates: Roy Applegate v. Commonwealth of Kentucky (SC 10/29/2009)

Roy Applegate v. Commonwealth of Kentucky
2007-SC-000444-MR October 29, 2009
Opinion by Justice Schroder; all sitting.

Applegate was convicted of one count each of first degree rape, first degree sodomy and incest and was sentenced to 30 years imprisonment. On appeal, he argued that the indictment alleged that he raped and sodomized his daughter an unspecified number of times and thus the prosecutor was criminalizing “a pattern of criminal abuse”– an offense not enacted by the General Assembly. In so doing, Applegate argued, the prosecution had usurped the authority of the legislative branch, in violation of the separation of powers clause. The Court held the indictment was proper, noting that Applegate was not charged with multiple, identical indictments for the same offenses, rather he had only been charged with one count each of rape, sodomy and incest and that it is unreasonable to expect a victim of “tender years” to remember specific dates, given the long period of time over which the abuse occurred. Applegate next argued that the indictment’s lack of specificity violated his protection against double jeopardy because he could be arrested, indicted or convicted in the future for crimes against the victim during the same time period. The Court held that since such future jeopardy had not yet occurred, there was no real and justiciable controversy, thus the issue was not ripe for appeal. However, the Court ruled that “a defendant who is charged and convicted of a sexual crime that occurred during a range of time cannot subsequently be charged with the same crime against the same person during the period stated in the
original conviction.”

Applegate also argued that since the indictment alleged a range of dates, there was no way to know if the jury agreed on a specific incident of sexual abuse, thus violating his right to a unanimous jury verdict. The Court held that there was no unanimity problem since Applegate was only charged with one count per offense and noted that trial courts are not required to identify evidentiary detail in jury instructions when a defendant is charged with only one count of an offense. Applegate also claimed the trial court erred by not allowing him to personally crossexamine a prosecution expert and the victim. The Court agreed that the trial court’s reason for denying the request was unsound (i.e. Applegate was not a trained attorney), but held that Applegate’s request, which was made on the second day of trial, was not timely. Further, the Court noted that Applegate had no right to personally cross-examine the victim and that he had no basis for his proposed line of questioning to the prosecutor’s expert (that the expert had not really examined the victim and had fabricated medical records). Lastly, Applegate argued it was an error for the trial court to determine, in the presence of the jury, that two of the prosecution’s witnesses were experts, thus bolstering the credibility of the witnesses, as well as that of the victim, whose testimony these witnesses corroborated. The Court, relying on Luttrell, observed that such determination should be made outside the presence of the jury. However, in light of the evidence and the fact that Applegate had been able to crossexamine the witnesses, the Court concluded that the error was harmless and the conviction was affirmed. Justice Cunningham concurred in result only by separate opinion, contending that Luttrell does not prohibit informing the jury that a witness is an expert and that the purpose of qualifying witnesses is to enhance their credibility in the eyes of the jury.

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