CRIMINAL: No double jeopardy re counts of using minor in sexual performance and promoting sexual performance by minor per Blockburger application: Danny Little v. Com. (SC 10/23/2008)

SC affirmed Little's convictions and 70 year sentence for two counts of using a minor in a sexual performance and two counts of promoting a sexual performance by a minor. SC rejected argument that convictions for using a minor in a sexual performance and promoting a sexual performance by a minor amount to a violation of the double jeopardy clauses of both the state and federal constitutions, and of the limitations set out in KRS 505.020 for the prosecution of multiple offenses.

In Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996), SC returned to the double jeopardy analysis set out in Blockburqer v. U.S., 284 U.S. 299, 52
S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, when the same act or transaction violates two statutory provisions, court must determine "whether each provision requires proof of a fact which the other does not." 284 U.S . at 304, 52 S .Ct. at 182 . The focus of the analysis is on the proof necessary to establish "the statutory elements of each offense, rather than on the actual evidence presented at trial." So long as "each statute requires proof of an additional fact which the other does not, the offenses are not the same under the Blockburger test."

A person uses a minor in a sexual performance when he "employs, consents to, authorizes or induces a minor to engage in a sexual performance." KRS 531.130(1). Little consented to Burke filming his daughter, CL, in various stages of undress, both while on the four-wheeler and while being tossed in the air. Little used, or employed, KB in a sexual performance when he tossed her in the air while Burke filmed her bare buttocks. A person promotes a sexual performance by a minor when, "knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a minor." KRS 531.320. "The `promotion' statute is violated when one either actively or passively prepares, agrees, or brings forth through their efforts the visual representation of a minor in a sexual performance before an audience." By filming KB naked on the couch while physically positioning her in various poses, Little was directing a sexual performance by a minor. He promoted a sexual performance by CL when he allowed her to be filmed while naked in the Burkes' bathtub. His verbal directions to CL assisted Burke in the organizing, or production, of footage containing sexual conduct. The convictions in this case do not arise from a single course of conduct. Rather, they are based on distinct actions as to separate victims . Thus, the rule prescribed in Blockburger is not implicated, and no double jeopardy violation occurred when Little was convicted under both KRS 531.310 and KRS 531.320.