Criminal: GIBBS V. COM. (SC 9/21/2006)

CRIMINAL:   Crimes (sodomy; sexual abuse); Competency hearing;  Instructions

DATE RENDERED: 9/21/2006

Judge did not read each instruction to the jury in its entirety and that the oral instructions differed from the written instructions . During the reading of jury instructions, the trial court read the instruction for a particular offense. Some offenses contained multiple counts, and the instructions for each count varied only in the location of where the offense occurred.

For some of the multiple counts, the trial court decided not to re-read the instructions, but instead, indicated that the instruction was the same as the prior instruction with the exception as to where the offense occurred.    It is the duty of counsel who wishes to claim error to keep current on the law, and to object with specificity so that the trial judge will be advised on  how to instruct.

Practical considerations must be taken into account for such technical errors in the course of a trial. In the case at bar, the trial court provided the jury a full set of instructions in compliance with the tenor of RCr 9.54(1) and committed no error.

The statute of limitations barred the first four misdemeanor charges complained of and the offense set forth in Instruction 25, was either barred by the statute of limitations and/or the age element was not met. Accordingly, these misdemeanor convictions will be reversed for dismissal .  The longest sentence Appellant could receive for the Class C and Class D felonies for which he was convicted was twenty (20) years . The trial court erred in sentencing Appellant to 105 years imprisonment. While the Commonwealth does not expressly concede error, it does admit it would be difficult to find that there was no error.

SC  remanded this case with instructions to re-sentence Appellant to imprisonment for a period of years not to exceed twenty years.

As for sexual abuse, only contact by force is required, and force cannot be implied. Since sexual contact does not have an implied forcible compulsion element, there must be a close examination of whether physical force or threats of physical force caused the sexual contact, and an offender’s intention must be taken into consideration. Here, Appellant’s act of taking Sarah Smith’s hand and placing it on his penis is required physical force and his intent was to cause the sexual contact between the two.

SC determined that the trial court erred by not conducting a competency hearing following a court ordered competency evaluation, and that the 105 year sentence imposed on Appellant violates the statutory maximum provided by law . As such, this cause is remanded to the trial court for a retrospective competency hearing and re-sentencing . On all other claims, the judgment of the trial court is affirmed.

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