CRIMINAL LAW: Stone v. Commonwealth (COA 1/8/2010)

Stone v. Commonwealth
2008-CA-001424 01/08/2010 2010 WL 45885

Opinion by Judge Wine; Judge Stumbo concurred; Judge Thompson concurred in result by separate opinion. The Court affirmed appellant’s conviction and sentence for first-degree attempted unlawful transaction with a minor. The Court first held that the trial court properly denied appellant’s motion for a directed verdict. KRS 506.010, the criminal attempt statute, did not contain a requirement that an actual minor be involved and there was significant evidence that appellant believed he was dealing with a thirteen-year-old child, even though he was actually dealing with an adult male. Further, KRS 530.064 did not require that the sexual activity of the minor be illegal but rather, made the sexual activity with a minor illegal. The Court next held that the trial court did not err by denying appellant’s motion for a mistrial after sexually explicit photographs of his penis were shown to the jury during opening arguments when the photographs were later properly authenticated and admitted at trial. The Court next held that the trial court did not err in precluding appellant from raising impossibility as a defense to the crime of attempt because the defense of impossibility is inapplicable to the crime of attempt. The Court next held that the trial court properly instructed the jury. There was no evidence to support a finding of not guilty on the charge of attempted unlawful transaction with a minor but that would support a conviction for a lesser offense of attempted rape, attempted sodomy, or attempted sexual abuse. The Court next held that the trial court properly refused to instruct the jury on entrapment as a defense, as neither element for a valid defense of entrapment was present when appellant approached the decoys first and initiated the sexual discussions and the discussion of setting up an in-person meeting. The Court then struck the portion of appellant’s brief containing an alleged error regarding an oral instruction to the jury when appellant failed to cite to the record to support the argument and failed to cite any legal authority for the claim. The Court next held that the trial court did not err by sustaining the Commonwealth’s objection during closing argument concerning the language of KRS 503.064 when defense counsel was arguing an erroneous interpretation of the statute.

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