Criminal: Sexual conduct with child — Everett Jenkins v. Com. of Kentucky (COA 12/19/2008)

Everett Jenkins v. Com. of Kentucky
Criminal:  Sexual conduct with child
2007-CA-001268
PUBLISHED: REVERSING AND REMANDING
PANEL: STUMBO PRESIDING; LAMBERT, THOMPSON CONCUR
JEFFERSON (JUDGE MCCAY CHAUVIN)
DATE RENDERED: 12/19/2008

Opinion by Judge Stumbo; Judges Lambert and Thompson concurred. The Court
reversed, and remanded for a new trial, a final judgment and sentencing in which
appellant received 12 years’ imprisonment for the use of a minor in a sexual
performance. The Court first held that appellant was not entitled to a directed
verdict. The evidence that appellant put a dog toy down the underwear of the
child, held the child down and watched the dog get the toy out, and that either
the dog toy or the dog’s mouth touched the genitals of the child comported
with KRS 531.300(4)(b), which required physical contact with the genitals of a
minor. The Court then held that while evidence about inappropriate touching;
sexual comments made to the children; a trip to a strip club that resulted in a
phone call to one of the children; and the placing of a sex toy in a child’s
room was relevant to establish intent and motive, testimony of sex toys in the
house, general trips to strip clubs and marijuana use were impermissibly entered
to establish bad character in violation of KRE 404(b). The Court next held that
the trial court did not err in failing to give an instruction on attempted use
of a minor in a sexual performance when appellant denied the alleged conduct and
the only other evidence showed that the act was completed. The Court finally
held that the trial court erred when it allowed more than one victim impact
statement in violation of KRS 532.055. However, the issue on retrial was moot as
KRS 532.055 was amended to allow for multiple victims to give impact statements.

Digest from COA Monthly Summaries – Dec.
2008
 

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