In overruling Sherley v. Commonwealth, SC held double jeopardy not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim): DIXON V. COM (SC 5/22/2008)

DIXON v. COM
CRIMINAL:  Criminal – Double Jeopardy
2006-SC-000682-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON
COUNTY: GREENUP
DATE RENDERED: 5/22/2008

Separate convictions for first-degree rape premised on serious physical injury and first-degree assault arising from same physical injury did not violate prohibition against double jeopardy, overruling Sherley v. Commonwealth, 558 S.W.2d 615.

SC affirmed Dixon’s convictions and 47 year sentence for first-degree assault, first-degree rape, and first-degree robbery. TC properly denied Defendant’s proposed instruction on facilitation to commit first-degree robbery and facilitation to commit first-degree rape. The assault and rape convictions did not violate the prohibition against double jeopardy. In cases like this one, in which the Commonwealth prosecutes a defendant on a charge of first-degree rape under a theory that the victim suffered a serious physical injury, the elements of first-degree rape are as follows: (1) engaging in sexual intercourse with another person (2) by forcible compulsion, (3) which results in the victim receiving a serious physical injury. SC overruled Sherley v. Commonwealth, 558 S.W.2d 615 (Ky. 1977) and held that the prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim), even if the same serious physical injury to the victim is used to support each conviction.

Digested by Scott C. Byrd
Olgin and Byrd