Criminal: COMBS V. COMMONWEALTH (SCOKY; 4/20/2006)

CRIMINAL – UTM, Sexual Abuse
DATE:  4/20/2006

SC affirmed Defendant’s conviction of Sexual Abuse 1st and reversed conviction of Unlawful Transaction with a Minor 1st Degree and remanded that count for a new trial on the lesser offense of Sexual Abuse 1st Degree.

KRS 530.064(1) provides : A person is guilty of unlawful transaction with a minor in the first degree when he knowingly induces, assists or causes a minor to engage in illegal sexual activity, . . . except those offenses involving minors in KRS Chapter 531 [pornography and sexual exploitation of minors] and KRS 529.030 [prostitution].Any sexual activity with a child less than twelve years of age is illegal, regardless of the age of the perpetrator.  “To induce" signifies a successful persuasion; that the act has been effective and the desired result obtained." and that "’to engage’ denotes action and means ‘to employ one’s self; to take part in ."’ Thus, to complete the offense, the minor must consent to and actively participate in the activity.  By A.H .’s own account that she "did not want him to do it," she did not consent to and actively participate in Defendant’s fondling of her breasts and vagina or his digital penetration of her vagina.  She specifically testified with respect to the masturbation incident that Defendant attempted to induce her to touch his penis but that she refused to engage in that activity. Thus, she did not testify to any activity that could constitute a violation of KRS 530.064(1).Thus, all of the sexual conduct described by A.H., except the masturbation incident, constituted Sexual Abuse 1st, not UTM 1st. 

While the evidence of the masturbation incident would have supported an instruction on a lesser included offense of criminal attempt to commit UTM 1st, KRS 506.010(1)(b) & (2), an instruction on that offense was neither requested nor given. We note in passing that logic supports the legislature’s determination to assign a more severe penalty to a violation of KRS 530.064(1)(b) than to a violation of KRS 510.110(1)(b), thus concluding that it is more egregious to induce a child to willingly engage in illegal sexual activity than to subject an unwilling child to illegal sexual conduct.

The proscription against double jeopardy precludes the Commonwealth from prosecuting Defendant for criminal attempt to commit UTM 1st for the conduct at issue.

Digested by Scott Byrd.

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