KRS Chapter 531 Pornography

 

TITLE L – KENTUCKY PENAL CODEIndex  

KRS ANNOTATED

KRS Chapter 531 Pornography

KRS 531.010 Thru KRS 531.370

KRS 531.010 Definitions

KRS 531.020 Distribution of obscene matter

KRS 531.030 Distribution of obscene matter to minors

KRS 531.040 Using minors to distribute obscene material

KRS 531.050 Advertising obscene material

KRS 531.060 Promoting sale of obscenity

KRS 531.070 Exemptions

KRS 531.080 Special verdict

KRS 531.090 Voyeurism

KRS 531.100 Video voyeurism

KRS 531.105 Application of KRS 531.100

KRS 531.110 Sealing and destruction of images in cases of video voyeurism

Sexual Exploitation of Minors

KRS 531.300 Definitions for KRS 531.080 and 531.310 to 531.370

KRS 531.310 Use of a minor in a sexual performance

KRS 531.320 Promoting a sexual performance by a minor

KRS 531.330 Presumption as to minority

KRS 531.335 Possession of matter portraying a sexual performance by a minor — Applicability.       June 25, 2013

KRS 531.340 Distribution of matter portraying a sexual performance by a minor

KRS 531.350 Promoting sale of material portraying a sexual performance by a minor

KRS 531.360 Advertising material portraying a sexual performance by a minor

KRS 531.370 Using minors to distribute material portraying a sexual performance by a minor

 

Updated 8/24/2013  (2013) GB

 
 
 
 

KRS 531.010 Definitions.

As used in this chapter:

(1) "Distribute" means to transfer possession of, whether with or without consideration.

(2) "Matter" means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, live image transmitted over the Internet or other electronic network, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials.

(3) "Obscene" means:

(a) To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and

(b) The matter depicts or describes the sexual conduct in a patently offensive way; and

(c) The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(4) "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse; or physical contact with the genitals, flagellation, or excretion for the purpose of sexual stimulation or gratification.

Effective: June 25, 2009  History: Amended 2009 Ky. Acts ch. 100, sec. 3, effective June 25, 2009. — Created 1974 Ky. Acts ch. 406, sec. 265, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 

Purcell v. Commonwealth of Kentucky, No. 2001-SC-0707-DG (KY 11/18/2004) (KY, 2004)

KRS Chapter 531, entitled "Pornography," was originally enacted in 19743 as a part of the Kentucky Penal Code. Except for the "special verdict form" in KRS 531.080, its original provisions remain unchanged. KRS 531.010-.070. The definitions section, KRS 531.010, defines "obscene" and "sexual conduct" as follows:

(3) "Obscene" means:

(a) To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and

(b) The matter depicts or describes the sexual conduct in a patently offensive way; and

(c) The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 (4) "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse; or physical contact with the genitals, flagellation, or excretion for the purpose of sexual stimulation or gratification.

The definition of "obscene" was adopted almost verbatim from the test established by the United States Supreme Court Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L. Ed.2d 419 (1973).

        The 1978 General Assembly expanded KRS Chapter 531 to add sections proscribing "Sexual Exploitation of Minors," including child pornography. KRS 531.300-.370.4 As initially enacted in 1978,5 KRS 531.300(3) defined "obscene" the same as it is defined in KRS 531.010(3), i.e., per Miller v. California, supra, except that KRS 531.300(3)(b) read:

        (b) The matter depicts or describes the sexual conduct by a minor in a patently offensive way; . . .

        (Emphasis added.) As originally enacted,6 KRS 531.300(4) was the same as it is today except that subsection (4)(b) provided:

        (4) "Sexual conduct by a minor" means:

        . . .

        (b) Physical contact with, or obscene exhibition of the genitals;

        . . .

        Thus, the definition of "sexual conduct" in KRS 531.300(4)(a) and (c), and the "physical contact with . . . the genitals" language in KRS 531.300(4)(b) were lifted verbatim from KRS 531.010(4), supra. The "obscene exhibition of the genitals" language in KRS 531.300(4)(b) and all of KRS 531.010(4)(d) was new. In Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), we upheld the statute as written against charges that it was unconstitutionally vague and/or overbroad. Id. at 870-72.

 
 
 

KRS 531.020 Distribution of obscene matter.

(1) A person is guilty of distribution of obscene matter when, having knowledge of its content and character, he:

(a) Sends or causes to be sent into this state for sale or distribution; or

(b) Brings or causes to be brought into this state for sale or distribution; or

(c) In this state, he:
1. Prepares, or
2. Publishes, or
3. Prints, or
4. Exhibits, or
5. Distributes, or

6. Offers to distribute, or

7. Has in his possession with intent to distribute, exhibit or offer to distribute, any obscene matter.

(2) Distribution of obscene matter is a Class B misdemeanor unless the defendant has in his possession more than one unit of material coming within the provisions of this chapter, in which case it shall be a Class A misdemeanor.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 266, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 

Heflin v. Com., 689 S.W.2d 621 (Ky. App., 1985)

This is an appeal from the judgment of the McCracken Circuit Court which affirmed appellant’s conviction in district court of distributing obscene materials under KRS 531.020.

        Appellant’s arrest and conviction arose out of her employment with Beltline News and Arcade Club, Inc., a Kentucky corporation. The club’s "members" enjoyed access to exotic literature, motion pictures, novelties and artifacts, and appellant’s duties included renting or selling the inventory, assisting customers, and admitting new members. Appellant was charged with violating KRS 531.020 after she sold a movie entitled "Craig’s Double Dream" and a magazine called "Swedish Erotica No. 26" to an undercover investigator with the Kentucky State Police.

        The prosecution called the investigating officer and the Paducah City License Inspector as witnesses at trial, and their testimony comprised the Commonwealth’s case-in-chief. At that point, appellant moved for a directed verdict on the theory that the state failed to prove she sold the items with knowledge of their content and character, an essential element of the crime under the statute. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Although the Commonwealth’s evidence was extremely weak, the trial court denied the motion, so appellant took the stand and presented her case.

        The jury found appellant guilty, and imposed a $250.00 fine and a thirty-day jail sentence.

        The sole issue on appeal is whether the trial court erred in overruling appellant’s motion for a directed verdict at the close of the state’s case. There is no criminal rule in Kentucky dealing with directed verdicts as such, but RCr 13.04 imports the Civil Rules into criminal proceedings to the extent that they are not superceded by or inconsistent with the criminal rules.

        CR 50.01 states that "(a) party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted … to the same extent as if the motion had not been made." However, if a party chooses to proceed with his case after the motion is denied, he assumes the risk that his evidence will fill the gaps in his opponent’s case, forfeiting his claim of error. According to Lyon v. Prater, Ky., 351 S.W.2d 173 (1961), "an error in denying such a motion at the close of the plaintiff’s evidence is held to be cured when the defendant by his subsequent testimony has supplied the omission in the plaintiff’s case."

        In this case, the record shows that appellant’s testimony cured any defect in the state’s case, so the lower court did not err in affirming her conviction.

 

Video Village v. Com., 825 S.W.2d 288 (Ky. App., 1992)

This appeal is before us on discretionary review from the criminal conviction of the appellant, Video Village, Inc., for distributing obscene material under KRS 531.020. A fine of $10,000 was imposed upon the appellant by the Kenton District Court. The Kenton Circuit Court affirmed. We, however, must reverse.

        The instant case centered on the question whether the two films, "The Slut" and "Black Moon Rising," were obscene. The only witness to testify for the Commonwealth was Detective Rick Brockwell. It was stipulated that Detective Brockwell rented the tapes from Video Village. After the testimony of Detective Brockwell, the two movies were then shown to the jury. The Commonwealth rested. The appellant introduced limited testimony through Alan Webster, the regional director of Video Village.

        The appellant first asserts that the trial court erred in not allowing the testimony of Dr. Judith Siefer, a sex therapist concerning contemporary community standards and the scientific value of the video tapes. The trial court was correct in its conclusion that the prosecution is not required to introduce expert testimony to prove that the video tapes are obscene. Paris Adult Theater I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628 (1973). Yet, such conclusion does not preclude the defendant from being entitled to introduce appropriate expert testimony on his own behalf at trial. Keene v. Commonwealth, Ky., 516 S.W.2d 852, 855 (1974), [In Dicta]; Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590 (1974); and Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973). The trial court is vested with wide discretion in determining to admit or exclude expert testimony. Keene, supra, and Hamling, supra. In the instant case the trial court abused its discretion in not allowing any expert testimony. The appellant has shown on avowal that Dr. Judy Siefer was qualified as an expert to testify as to her opinion concerning the scientific value of the video tapes in question. The trial court on remand should consider the additional question of whether Dr. Siefer is qualified to testify as to the community standards of Kenton County. 1

        The appellant next contends that the trial court erred in excluding statistical evidence of the number of adult video rentals from the same store. During a 30-month period, 79,994 adult movies were rented, equal to approximately 2633 video rentals per month. The statistical evidence was derived from business records of Video Village. We agree with the trial court that statistics concerning the specific videos in question are admissible because of its relevant and probative value. Keller v. State of Texas, Tx., 606 S.W.2d 931 (1980), and United States v. Pryba, 678 F.Supp. 1225 (E.D.Va.1988), adopted United States v. Pryba, 900 F.2d 748 (4th Cir.1990) (considering the question of whether a public opinion poll is admissible). The appellant however sought to include statistics concerning the entire listing of adult movies. On remand the trial court will have to determine if the statistical compilation is relevant based upon the following criteria: (1) whether or not the statistical data refers to material that is closely akin to the videotapes in question and (2) whether the assembled document goes to show that the charged materials are acceptable in the locality. United States v. Pryba, supra.

        The opinion of the Kenton Circuit Court is reversed. The Kenton Circuit is respectfully directed to enter an order granting the appellant a new trial upon remand to the Kenton District Court

 
 
 

KRS 531.030 Distribution of obscene matter to minors.

(1) A person is guilty of distribution of obscene material to minors when, knowing a person to be a minor, or having possession of such facts that he should reasonably know that such person is a minor, and with knowledge of the content and character of the material, he knowingly:

(a) Sends or causes to be sent; or

(b) Exhibits; or

(c) Distributes, or offers to distribute, obscene material to a minor.

(2) Distribution of obscene materials to minors is a Class A misdemeanor unless the defendant has previously been convicted of violation of this section or of KRS 531.020, in which case it shall be a Class D felony.

Effective: January 1, 1975 History: Created 1974 Ky. Acts ch. 406, sec. 267, effective January 1, 1975.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.040 Using minors to distribute obscene material.

(1) A person is guilty of using minors to distribute obscene material when knowing a person to be a minor, or having possession of such facts that he should reasonably know such person is a minor, and knowing of the content and character of the material, he knowingly:

(a) Hires; or
(b) Employs; or

(c) Uses, a minor to do or assist in doing any of the acts prohibited by KRS 531.020.

(2) Using minors to distribute obscene material is a Class A misdemeanor unless the defendant has previously been convicted of violation of this section or KRS 531.030, in which case it shall be a Class D felony.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 268, effective January 1, 1975.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.050 Advertising obscene material.

(1) A person is guilty of advertising obscene material when, having knowledge of its content and character thereof, he writes or creates advertising or solicits anyone to publish such advertising or otherwise promotes the sale or distribution of obscene matter.

(2) Advertising obscene material is a Class B misdemeanor.

Effective: January 1, 1975   History: Created 1974 Ky. Acts ch. 406, sec. 269, effective January 1, 1975.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.060 Promoting sale of obscenity.

(1) A person is guilty of promoting sale of obscenity when he knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter reasonably believed by the purchaser or consignee to be obscene, or he denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept such matter, or by reason of the return of such matter.

(2) Promoting sale of obscenity is a Class B misdemeanor for the first offense, a Class A misdemeanor for the second offense, and a Class D felony for each subsequent offense.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 270, effective January 1, 1975.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.070 Exemptions.

The prohibitions and penalties imposed in this chapter shall not extend to persons having a bona fide scientific, educational, governmental, or other similar justification for conduct which would, except for such justification, be criminal under this chapter.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 271, effective January 1, 1975.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.080 Special verdict.

(1) The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene. The special verdict or findings on the issue of obscenity may be: "We find the …. (title or description of matter) to be obscene," or, "We find the …. (title or description of matter) not to be obscene," as they may find each item is or is not obscene.

(2) Whenever a person is tried for distribution of matter portraying a sexual performance by a minor, the jury, or the court, if a jury trial is waived, shall render a special verdict as to whether the matter named in the charge portrays a sexual performance by a minor. The special verdict or findings on the issue of whether or not the matter portrays a sexual performance by a minor may be: "We find the . . . . . (title or description of matter) to portray a sexual performance by a minor," or, "We find the . . . . . (title or description of matter) not to portray a sexual performance by a minor," as they may find each item to portray or not to portray a sexual performance by a minor.

(3) Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the Attorney General, Commonwealth’s attorney, county attorney, city attorney or their authorized assistants, or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.

Effective: June 17, 1978  History: Amended 1978 Ky. Acts ch. 219, sec. 8, effective June 17, 1978. – Created  1974 Ky. Acts ch. 406, sec. 272, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 

Commonwealth v. Durham, 2001 KY 245 (KY, 2001)

See KRS 531.080: (1) The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene. The special verdict or findings on the issue of obscenity may be: ‘We find the (title or description of matter) to be obscene,’ or, ‘We find the (title or description of matter) not to be obscene,’ as they may find each item is or is not obscene. (2) Whenever a person is tried for distribution of matter portraying a sexual performance by a minor, the jury, or the court, if a jury trial is waived, shall render a special verdict as to whether the matter named in the charge portrays a sexual performance by a minor. The special verdict or findings on the issue of whether or not the matter portrays a sexual performance by a minor may be: ‘We find the (title or description of matter) to portray a sexual performance by a minor,’ or, ‘We find the (title or description of matter) not to portray a sexual performance by a minor,’ as they may find each item to portray or not to portray a sexual performance by a minor. Id.; Smith v. Commonwealth, Ky., 465 S.W.2d 918, 920 (1971) ("The instructions to the jury specifically required the jury to find beyond a reasonable doubt that the accused ‘had knowledge’ of the obscenity of the material before any finding of guilt could be had.").

 

Commonwealth v. Durham, 2001 KY 245 (KY, 2001)

       *fn22 See KRS 531.080: (1) The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene. The special verdict or findings on the issue of obscenity may be: ‘We find the (title or description of matter) to be obscene,’ or, ‘We find the (title or description of matter) not to be obscene,’ as they may find each item is or is not obscene. (2) Whenever a person is tried for distribution of matter portraying a sexual performance by a minor, the jury, or the court, if a jury trial is waived, shall render a special verdict as to whether the matter named in the charge portrays a sexual performance by a minor. The special verdict or findings on the issue of whether or not the matter portrays a sexual performance by a minor may be: ‘We find the (title or description of matter) to portray a sexual performance by a minor,’ or, ‘We find the (title or description of matter) not to portray a sexual performance by a minor,’ as they may find each item to portray or not to portray a sexual performance by a minor. Id.; Smith v. Commonwealth, Ky., 465 S.W.2d 918, 920 (1971) ("The instructions to the jury specifically required the jury to find beyond a reasonable doubt that the accused ‘had knowledge’ of the obscenity of the material before any finding of guilt could be had.").

 

Purcell v. Commonwealth of Kentucky, No. 2001-SC-0707-DG (KY 11/18/2004) (KY, 2004)  and  

Purcell v. Com., 149 S.W.3d 382 (Ky., 2004)

    KRS Chapter 531, entitled "Pornography," was originally enacted in 1974 as a part of the Kentucky Penal Code. Except for the "special verdict form" in KRS 531.080, its original provisions remain unchanged. KRS 531.010-.070

 
 

KRS 531.090 Voyeurism.

(1) A person is guilty of voyeurism when:

(a) He or she intentionally:

1. Uses or causes the use of any camera, videotape, photooptical, photoelectric, or other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping the sexual conduct, genitals, or nipple of the female breast of another person without that person’s consent; or

2. Uses the unaided eye or any device designed to improve visual acuity for the purpose of observing or viewing the sexual conduct, genitals, or nipple of the female breast of another person without that person’s consent; or

3. Enters or remains unlawfully in or upon the premises of another for the purpose of observing or viewing the sexual conduct, genitals, or nipple of the female breast of another person without the person’s consent; and

(b) The other person is in a place where a reasonable person would believe that his or her sexual conduct, genitals, or nipple of the female breast will not be observed, viewed, photographed, filmed, or videotaped without his or her knowledge.

(2) The provisions of subsection (1) of this section shall not apply to:

(a) A law enforcement officer during a lawful criminal investigation; or

(b) An employee of the Department of Corrections, the Department of Juvenile Justice, a private prison, a local jail, or a local correctional facility whose actions have been authorized for security or investigative purposes.

(3) Unless objected to by the victim or victims of voyeurism, the court on its own motion or on motion of the Commonwealth’s attorney shall:

(a) Order the sealing of all photographs, film, videotapes, or other images that are introduced into evidence during a prosecution under this section or are in the possession of law enforcement, the prosecution, or the court as the result of a prosecution under this section; and

(b) At the conclusion of a prosecution under this section, unless required for additional prosecutions, order the destruction of all of the photographs, film, videotapes, or other images that are in possession of law enforcement, the prosecution, or the court.

(4) Voyeurism is a Class A misdemeanor.

Effective: July 15, 2002 History: Created 2002 Ky. Acts ch. 336, sec. 1, effective July 15, 2002.
 
ANNOTATION FOR THIS STATUTE:
 

S.M. v. Commonwealth, No. 2007-CA-001353-DGE (Ky. App. 7/11/2008) (Ky. App., 2008)

   On March 26, 2006, S.M., who was 13 years old at the time, entered a women’s restroom and looked under the door of an occupied stall. On August 21, 2006, S.M. again entered a women’s restroom and looked over the top of an occupied stall.1 S.M. was originally charged with criminal trespass in the second degree but the charges were amended to voyeurism. KRS 531.090(1)(a)(3). On October 9, 2006, S.M. pled guilty to the amended charges. We note that, following the first offense, S.M. was referred to diversion but failed to follow through.

      Based on the above, we hold that the district court inappropriately ordered a juvenile sexual offender assessment. Therefore, we reverse and remand. On remand, and pursuant to KRS 610.100(1), the district court may order any other evaluations or assessments it deems appropriate. The court may then determine what disposition to make based on the results of any such evaluations or assessments.

 

Williams v. Com., 178 S.W.3d 491 (KY, 2005)

 In 2002, the Kentucky legislature enacted a new statute, KRS 531.090, for the offense of voyeurism. It had an effective date of July 15, 2002, which was approximately 16 months after the commission of the offenses by Williams on or about January 22, 2001.

        Defense counsel, at the conclusion of the defense case, mentioned a request for a lesser-included offense of voyeurism under the new statute. The trial judge noted that the statute was not the law in existence at the time of the offense and that an ex post facto problem would be generated because the defendant could potentially be found guilty of something that was not an offense at the time of the violation. The trial judge denied the request.

        KRS 446.080(3) provides that "[n]o statute shall be construed to be retroactive unless expressly so declared." There is no retroactivity statement in the new law, KRS 531.090, and it could not be applied in this matter.

        Reliance on Commonwealth v. Phon, 17 S.W.3d 106 (Ky.2000), is misplaced because that case is factually distinguishable from the one presented here. In Phon, supra, there was a change in the penalty range of the existing homicide statute to include the possibility of life without parole. Here, an existing statute was not amended, but rather an entirely new offense was created by the enactment of KRS 531.090. There was no error in denying the requested instruction.

    In this case, although the Court of Appeals has subsequently affirmed the convictions, this Court has granted the defendant’s motion for discretionary review. Furthermore, Williams did not have any other admissible prior convictions. Consequently, we cannot find the error to be harmless.

        In reviewing this case, we have found no error in the guilt phase portion of the trial. Williams was not denied his due process rights under the state or federal constitutions.

 

Com. v. Mixon, 827 S.W.2d 689 (Ky., 1992)  

"In Hayes, supra, the judgment was reversed because there was ‘no indication in the record from either the testimony during the PFO trial or the transcript of the official stenographer, which lists the exhibits filed as evidence, that any evidence, indictments or otherwise, was ever introduced before the jury showing date of the commission of the offenses.’ Id. at 831. In Callison v. Commonwealth, Ky.App., 706 S.W.2d 434 (1986), we held that probation and parole records may not be used to prove prior felony convictions under KRS 532.080. Earlier cases, arising under the former habitual criminal act, KRS 531.090, required authenticated records of foreign jurisdictions to show previous convictions. Hardin v. Commonwealth, Ky., 428 S.W.2d 224 (1968); CR 44.01. In the case at bar, we are unable to determine whether there were proper records available or whether the clerk was simply testifying from ‘a statement of charges’ prepared by the prosecution. At any rate, we believe that only a duly authenticated or certified record of a judgment and conviction can be used to prove the fact of a prior conviction. If the statute does not impose that simple requirement, the case law certainly implies it. See, e.g., Commonwealth v. Gadd, Ky., 665 S.W.2d 915, 917 (1984); Hayes, supra; and, Jackson, supra, at 885.

 

Morgan v. Com., 189 S.W.3d 99 (Ky., 2006)

First-degree burglary is committed when a person, with the intent to commit a crime, knowingly enters or remains unlawfully in a building and, when effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime: (a) is armed with explosives or a deadly weapon; or (b) causes physical injury to any person who is not a participant in the crime; or (c) uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.44 In comparison, KRS 531.090(1) provides, in pertinent part, that a person is guilty of voyeurism when:

 (a) He or she intentionally:          . . . .

(3) Enters or remains unlawfully in or upon the premises of another for the purpose of observing or viewing the sexual conduct, genitals, or nipple of the female breast of another person without the person’s consent; and

(b) The other person is in a place where a reasonable person would believe that his or her sexual conduct, genitals, or nipple of the female breast will not be observed, viewed, photographed, filmed, or videotaped without his or her knowledge.

        Voyeurism requires proof that the defendant entered or remained unlawfully for the purpose of viewing another individual’s body or sexual conduct. Proof of that fact is not required to convict a person of burglary and, as such, voyeurism is not a lesser-included offense. Under Morgan’s theory, i.e., that he entered D.C.’s trailer only to look at her and not to commit a crime (although he fails to recognize that voyeurism is a crime), he was entitled to an instruction on criminal trespass, which he was, in fact, given.

        Moreover, the jury found beyond a reasonable doubt that Morgan unlawfully entered D.C.’s trailer "with the intention of committing a crime therein" and "was armed with a deadly weapon." Under the facts presented, the jury could not possibly have believed that Morgan entered without the intent to commit a crime and thus, even had he been entitled to a voyeurism instruction, any failure to give such would have been harmless. 

 
 
 

KRS 531.100 Video voyeurism.

(1) A person is guilty of video voyeurism when he or she intentionally:

(a) Uses or causes the use of any camera, videotape, photooptical, photoelectric, or other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping the sexual conduct, genitals, or nipple of the female breast of another person without that person’s consent; and

(b) Uses or divulges any image so obtained for consideration; or

(c) Distributes any image so obtained by live or recorded visual medium, electronic mail, the Internet, or a commercial on-line service.

(2) Video voyeurism is a Class D felony.

Effective: July 15, 2002  History: Created 2002 Ky. Acts ch. 149, sec. 1, effective July 15, 2002.

 
ANNOTATION FOR THIS STATUTE:
 

Daniels v. Kentucky Bar Association, 247 S.W.3d 530 (Ky., 2008)

  Movant was indicted in Jefferson County for video voyeurism, KRS 531.100, a felony that criminalizes the non-consensual videotaping of another person’s sexual conduct, or of certain private parts even without sexual conduct. He was later indicted in Hardin County for intimidating a participant in the legal process, KRS 524.040, the factual basis for which was an alleged attempt to influence Stevens by an overt or implied threat. On February 15, 2006, Movant resolved both charges by entering into a five-year Pretrial Diversion Agreement. Pursuant to the agreement, he pleaded guilty to the video voyeurism charge and entered an Alford plea to the intimidating a participant in the legal process charge. Under the agreement, his diversion period is five years and represents the conditional discharge of a two year sentence. If he completes the diversion program, the charges against him will be dismissed.

        Because he pleaded guilty to a felony, Movant’s license to practice law was automatically suspended on February 16, 2006 under SCR 3.166. That suspension was formalized by Order of this Court on June 15, 2006. Daniels, 193 S.W.3d at 754-55.

   The current motion requests that Movant be allowed to resolve these disciplinary proceedings by his suspension under SCR 3.480(3). In his verified motion, Movant asks that his suspension be for five years, unless his period of diversion is reduced, in which case he may seek to have his suspension reduced by this Court to the same amount of time, though in no case would his suspension be reduced to less than three years. The motion also states that Movant had no clients as of the time of his automatic suspension and that he sent no notices of his suspension as a result.

     The KBA cites to several cases showing that Movant’s proposed suspension/withdrawal is appropriate. See Bertram v. Kentucky Bar Ass’n, 126 S.W.3d 358 (Ky.2004) (imposing five year suspension or suspension until criminal probation expires, whichever occurred first, with a minimum three year suspension for a felony); see also Kentucky Bar Ass’n v. Hickey, 31 S.W.3d 434 (Ky.2000) (four year suspension for felony tax evasion retroactive to date of conviction); Kentucky Bar Ass’n v. Horn, 4 S.W.3d 135 (Ky.1999) (five year suspension retroactive to date of automatic temporary suspension). This Court agrees that the proposed sanction and conditions are appropriate.

        Accordingly, the motion is GRANTED and it is hereby ORDERED:

        (1) Movant, Kenneth Daniels, is allowed to withdraw from the Kentucky Bar Association under terms of suspension from the practice of law for period of five years, with said suspension beginning on February 16, 2006. Should Movant’s term of pretrial diversion be reduced from its current five years, he may petition this Court for a similar reduction of his suspension, but in no case will his suspension be reduced to less than three years.

        (2) Movant may not apply for reinstatement to the practice of law until after the expiration of his period of suspension……

 

Kentucky Bar Association v. Daniels, 193 S.W.3d 754 (Ky., 2006)

       This matter is before the Court on the motion of the Kentucky Bar Association (KBA) for an Order of temporary suspension of Respondent, Kenneth E. Daniels, KBA Member No. 85515, whose bar roster address is 2957 Coral Strip Parkway, Gulf Breeze, Florida 32563. The Court grants the motion in accordance with SCR 3.166 due to Respondent’s felony convictions in Jefferson Circuit Court and Hardin Circuit Court.

        On February 15, 2006, Respondent pled guilty in Jefferson Circuit Court to one count of Video Voyeurism, KRS 531.100, and in Hardin Circuit Court to one count of Intimidating a Participant in the Legal Process, Complicity, KRS 524.040. Both of these crimes are Class D felonies.

        Pursuant to SCR 3.166(1), "Any member of the Kentucky Bar Association who pleads guilty to, or is convicted by a judge or jury of, a felony in this State or in any other jurisdiction shall be automatically suspended from the practice of law in this Commonwealth. . . . The suspension shall take effect automatically beginning on the day following the plea of guilty or finding of guilt by a judge or jury or upon the entry of judgment whichever occurs first."

 
 

KRS 531.105 Application of KRS 531.100.

The provisions of KRS 531.100 shall not apply to the transference of prohibited images by a telephone company, a cable television company or any of its affiliates, an Internet provider, or a commercial on-line service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial on-line services.

Effective: July 15, 2002  History: Created 2002 Ky. Acts ch. 149, sec. 2, effective July 15, 2002.   

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.110 Sealing and destruction of images in cases of video voyeurism.

Unless objected to by the victim or victims of the video voyeurism, the court, on its own motion, or on motion of the attorney for the Commonwealth shall:

(1) Order all photographs, film, videotapes, or other images that are introduced into evidence or are in the possession of law enforcement, the prosecution, or the court to be sealed; and

(2) At the conclusion of the case, unless required for additional prosecutions, order all of the photographs, film, videotapes, or other images that are in the possession of law enforcement, the prosecution, or the court to be destroyed.

Effective: July 15, 2002  History: Created 2002 Ky. Acts ch. 149, sec. 3, effective July 15, 2002.

 

NO ANNOTATION FOR THIS STATUTE: 

 
 

Sexual Exploitation of Minors

 

KRS 531.300 Definitions for KRS 531.080 and 531.310 to 531.370.

As used in KRS 531.080 and 531.310 to 531.370:

(1) "Distribute" means to transfer possession of, whether with or without consideration;

(2) "Matter" means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, live image transmitted over the Internet or other electronic network, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials;

(3) "Obscene" means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors;

(4) "Sexual conduct by a minor" means:

(a) Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;

(b) Physical contact with, or willful or intentional exhibition of the genitals;

(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or

(d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family;

(5) "Performance" means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;

(6) "Sexual performance" means any performance or part thereof which includes sexual conduct by a minor; and

(7) "Promote" means to prepare, publish, print, procure or manufacture, or to offer or agree to do the same.

Effective: June 25, 2009   History: Amended 2009 Ky. Acts ch. 100, sec. 4, effective June 25, 2009. — Amended 1986 Ky. Acts ch. 439, sec. 6, effective July 15, 1986. — Created 1978 Ky. Acts ch. 219, sec. 2, effective June 17, 1978.

 
ANNOTATION FOR THIS STATUTE:
 

[U] Keim v. Commonwealth (Ky., 2010)   SEPTEMBER 23, 2010  2009-SC-000445-MR.pdf

With these rules in mind, we find that the three witnesses’ statements concerning Appellant’s possession of pornography were relevant. Our conclusion derives from a plain reading of KRS 531.310, which provides in pertinent part: "A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." (emphasis added). As is clear, the inducement of a minor to engage in a sexual performance is a violation of this statute. Thus, it is quite conceivable that the jury could have drawn a reasonable inference that Appellant used the pornography as a catalyst to arouse the children, inducing them into performing a sexual act while he observed. See United States v. Postel, 524 F. Supp. 2d 1120, 1123 (N.D. Iowa 2006) (where the defendant distributed child pornography to induce, arouse, and entice the child victim to engage in prohibited sexual contact with him). Therefore, we find the testimony regarding Appellant’s possession of pornography relevant in this case.

We also agree with the Commonwealth that the evidence tended to show Appellant’s scheme of action and was a necessary part of the entire picture which the jury was entitled to see. This evidence provided necessary perspective and we conclude that it was competent as it relates to Appellant’s plan, scheme, and intent. Gilbert, 838 S.W.2d at 379 (citing Ware, 537 S.W.2d at 174). We reiterate today that juries "do not have to perform their function of fact-finding in a vacuum." Id. What’s important is still important.

Therefore, because the testimony was relevant (as it supported an element of the crime charged) and because its admission helped to paint the entire picture surrounding Appellant’s criminal activity, we reject the notion that it was incompetent evidence in this regard.

 

Clark v. Commonwealth of Kentucky, No. 2008-CA-001906-MR (Ky. App. 12/30/2009) (Ky. App., 2009)

   ,,,,, The term "promote" is defined in KRS 531.300(7) as: "to prepare, publish, print, procure or manufacture, or to offer or agree to do the same." Although "procure" is not defined in the Kentucky Revised Statutes, the term is defined in the New World Dictionary of the American Language, Second College Edition (1978) as: "to get or bring about by some effort; obtain; secure."

        Thus, to survive Clark’s motion for a directed verdict, the Commonwealth merely had to produce evidence showing that Clark knowingly used a computer for the purpose of getting a minor, or a peace officer whom Clark believed was a minor, to take a sexually explicit photograph of herself. Therefore, a crime was committed if Clark merely intended to use the computer to get a minor to take a sexually explicit photograph of herself and, contrary to Clark’s assertion, no actual photograph was required to be taken for his conviction under KRS 510.155 to withstand a challenge regarding the sufficiency of the evidence.

 

Jenkins v. Com., 275 S.W.3d 226 (Ky. App., 2008)

  Appellant’s first argument is that there was insufficient evidence to convict him of use of a minor in a sexual performance and that a directed verdict should have been granted. Specifically, his argument revolves around the "sexual conduct" element of the crime. "A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." Kentucky Revised Statutes (KRS) 531.310(1). "`Sexual performance’ means any performance or part thereof which includes sexual conduct by a minor[.]" KRS 531.300(6). KRS 531.300(4) defines "sexual conduct by a minor" as:

(a) Acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;

(b) Physical contact with, or willful or intentional exhibition of the genitals;

(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or

 (d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family….

        Appellant argues that none of the definitions for sexual conduct apply to him. The act which resulted in the charge of use of a minor in a sexual performance involved Appellant putting a dog toy down the underwear of Child 1 and Child 2, holding the children down, and watching the dog get the toy out. Both children testified that the dog toy would touch the child’s "private parts" and that the dog’s mouth would come in contact with the skin around their "private area." The Commonwealth argued that the bestiality and physical contact with the genitals portions of KRS 531.300(4)(a) and (b) would be satisfied

Appellant notes that bestiality is not defined in the Kentucky Revised Statutes, but that it is defined in the Model Penal Code as "sexual intercourse with an animal." Model Penal Code § 213.0 (2001). There was no testimony introduced to establish sexual intercourse with the dog. Assuming, arguendo, that the dog toy incident was not bestiality, we find that KRS 531.300(4)(b) is applicable. There was testimony that both the dog toy and dog’s mouth came in contact with the children’s "private area." Appellant argues that there was no testimony that he touched the children’s genitals.

        Even though this is true, there was sufficient evidence presented that either the dog’s mouth or the dog toy came in contact with the genitals. The commentary for KRS 510.010, the definition section for sexual offenses, states that sexual contact [275 S.W.3d 229] "must be with either the victim or the actor but need not be contact between them." It further states that subjecting a person to sexual contact with an animal would be covered by the definition. We find that either the dog toy or dog’s mouth touching the genitals of the child comports with KRS 531.300(4)(b) and hold that a directed verdict was not warranted.

 

 Westerfield v. Commonwealth, No. 2006-CA-000592-MR (Ky. App. 4/6/2007) (Ky. App., 2007)

      Westerfield next argues that he was entitled to a direct verdict on the charges of use of a minor in a sexual performance and possession of matter portraying a minor in a sexual performance because of insufficient evidence. He argues that the topless photograph of A.M.R. depicts "mere nudity" and is not obscene. Westerfield admitted before the trial court that there was sufficient evidence to take the possession charge to the jury. So we will examine only the whether the denial of a directed verdict on the use of a minor in a sexual performance was proper.

        KRS 531.310(1) states "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." KRS 531.300(6) defines "sexual performance" as "any performance or part thereof which includes sexual conduct by a minor." KRS 531.300(4)(d) defines sexual conduct by a minor as follows:

        The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family.

        Under KRS 531.300(3), the word "obscene" means "the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors." Logston v. Commonwealth, 973 S.W.2d 70, 71 (Ky.App. 1998) (emphasis in original); KRS 531.300(3). Insofar as Westerfield’s argument relies on the standard of obscenity set forth Miller v. California, 413 U.S. 15 (1973), it is misplaced. The purpose of KRS 531.300(4) is to forbid child pornography. Logston, 973 S.W.2d at 73. Therefore, under New York v. Ferber, 458 U.S. 747 (1982), "the state is not required to limit that prohibition to obscene sexual conduct as obscenity is defined in Miller." Id. The difference between the Miller standard for obscenity and the standard for child pornography is as follows:

        The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. Id. (quoting Ferber, 458 U.S. at 764).

        The Kentucky Supreme Court recently held that a jury could properly conclude that photographs of the victim’s breasts were obscene. Williams v. Commonwealth, 178 S.W.3d 491, 494 (Ky. 2005). In the present case, the photograph depicted a fifteen year old girl seated on Westerfield’s bed without her shirt on. Contrary to Westerfield’s assertion, the focal point of the photograph is the girl’s breasts and the pose is sexually suggestive. The jury observed the photograph and heard testimony describing the circumstances surrounding it. It found that the photograph was obscene. The trial court did not err in denying the motion for a directed verdict. 

Purcell v. Commonwealth of Kentucky, No. 2001-SC-0707-DG (KY 11/18/2004) (KY, 2004)  and

Purcell v. Com., 149 S.W.3d 382 (Ky., 2004)

 Thus, the legislative intent was to exclude from KRS 531.300(4)(b) those situations where the defendant filmed or photographed a nude child without the child’s knowledge. That conclusion is supported by the Court of Appeals’ decision in Logston, supra, holding that such activity is included within the definition at KRS 531.300(4)(d). Id. at 73-74 (citing People v. Kongs, 37 Cal.Rptr.2d 327 (Cal. Ct. App. 1995), and People v. Batchelor, 800 P.2d 599 (Colo. 1990)). We note that KRS 531.300(4)(d) requires that the exposure be "obscene" whereas no such requirement applies to KRS 531.300(4)(b). If the child is unaware that his or her genitals are being photographed, there is no offense under KRS Chapter 531 unless the photograph is obscene as defined in KRS 531.300(3); but if the child intentionally poses for a nude "performance," whether voluntarily or whether induced or forced, the element of obscenity is not required. In that instance, it is the abuse of the child, not the obscenity that is the primary evil to be proscribed.

        This interpretation is consistent with Ferber’s holding that the state can proscribe child pornography without requiring that the visual reproduction be obscene because the primary evil is not the visual reproduction’s effect on the consumer, but its effect on the child. Ferber, 458 U.S. at 759-61, 102 S.Ct. at 3355-57; see also Osborne, 495 U.S. at 111, 110 S.Ct. at 1697. We conclude that the language of KRS 531.300(4)(b) provides adequate notice to a person of ordinary intelligence of what conduct is prohibited and, thus, is not void for vagueness. Martin v. Commonwealth, Ky., 96 S.W.3d 38, 59-62 (2003).

        However, while KRS 531.300(4)(b) is not unconstitutional "as applied" to Appellant, see Martin, 96 S.W.3d at 50 (citing Bd of Trs. of State Univ. of N.Y. v. Fox, 491 U.S. 469, 485, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 338 (1989)), it is facially overbroad "because [its] very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973), and citing Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)). Specifically, the lower court in Ferber struck down the New York statute because it believed the statute would criminalize protected expression, e.g., pictorials in National Geographic Magazine. Ferber, 458 U.S. at 773, 102 S.Ct. at 3363. Justice Brennan worried about the statute’s effect on "depictions of children that are in themselves serious contributions to art, literature, or science." Id. at 776, 102 S.Ct. at 3365 (Brennan, J., concurring in judgment). The statute at issue in Osborne v. Ohio, supra, contained the following exemptions:

(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance;

(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.

        Ohio Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989). Osborne strongly suggested that these "proper purposes" provisions removed any claim of overbreadth. Id., 495 U.S. at 112, 110 S.Ct. at 1698.

        KRS 531.300(4)(b) does not contain an exemption, as does KRS 531.300(4)(d), for visual reproductions of a private, family nature not intended for distribution outside the family. Nor does it contain an exemption, as do other state statutes, for visual reproductions that are created with the permission of the child’s parents and are not obscene, lewd, or designed for the purpose of sexual stimulation of the viewer. It facially criminalizes every instance in which a child is photographed while willfully and intentionally exhibiting his or her genitals. Since mere nudity enjoys First Amendment protection, KRS 531.300(4)(b) as written is facially overbroad and, thus, unconstitutional. However, that does not require us to invalidate the statute.

D. Limiting construction.

        When a . . . court is dealing with a . . . statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction . . . . Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.

        Martin, 96 S.W.3d at 54 (quoting Ferber, 458 U.S. at 769 n.24, 102 S.Ct. at 3361 n.24, and Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916). In Osborne, supra, the Ohio Supreme Court had narrowly construed the statute to prohibit "the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged." Id., 495 U.S. at 103, 110 S.Ct. at 1698 (quotation and citation omitted). The U.S. Supreme Court held that the Ohio Supreme Court’s limiting construction saved the statute from a claim of overbreadth. Id. See also Ferber, 458 U.S. at 764, 102 S.Ct. at 3358 ("the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed" (emphasis added)); cf. Martin, 96 S.W.3d at 56  ("Insofar as Commonwealth v. Foley can be construed to prohibit a limiting construction of a statute challenged as facially overbroad, we overrule it and follow the mainstream principle of judicial construction exemplified by Osborne v. Ohio. . . ."). Thus, we construe KRS 531.300(4)(b) as defining "sexual conduct by a minor" as a "willful or intentional exhibition of the genitals" only when such exhibition is lewd. Under that construction, the statute does not suffer from unconstitutional overbreadth. Osborne, 495 U.S. at 112-13, 110 S.Ct. at 1698; Ferber, 458 U.S. at 765, 102 S.Ct. at 3359 (statute that only proscribed depictions containing "lewd exhibition" of minor’s genitals did not violate First Amendment); Miller, 413 U.S. at 25, 93 S.Ct. at 2615 (noting "lewd exhibition of the genitals" as an example of what a state statute could validly define for regulation).

   In summary, we construe KRS 531.300(4)(b) as requiring that the "willful or intentional exhibition of the genitals" be in a lewd manner in order to constitute sexual conduct by a minor. Thus, a defendant can be convicted under subparagraph (b) if the exhibition of the genitals by the minor was volitional and in a lewd manner. A defendant can be convicted under subparagraph (d) regardless of whether the exposure is volitional, but only if the exposure was in an obscene manner. The Commonwealth presented enough evidence in this case for a reasonable jury to conclude beyond a reasonable doubt that the photograph in question was a willful and intentional lewd exhibition of A.B.’s genitals. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). Momentarily ignoring the Commonwealth’s theory that Appellant produced the photograph to satisfy his own allegedly homosexual prurient interest, Appellant’s own theory was that he took the photograph to satisfy the prurient interests of two adult females who desired to have sexual intercourse with A.B. Either way, the photograph could be found to be lewd under the Dost factors. However, because the jury did not have an opportunity to make that finding, Appellant is entitled to a new trial. We address the other claims of error because they are likely to recur upon retrial.

 

Woodard v. Commonwealth, 2005-SC-000411-MR (Ky. 4/19/2007) (Ky., 2007)  and  Woodard v. Com., 219 S.W.3d 723 (Ky., 2007)

  The specific facts of this case undercut what might otherwise be a valid argument. Each of the victims committed sex acts at the urging of Woodard or Franklin while one or the other, or other children, watched. The fact that each of them may also have participated throughout the acts in no way negates the voyeuristic aspect of watching when not actively engaged. The plain language of KRS 531.300(5) defines performance as not only a play, motion picture, photograph or dance, but also "any other visual representation" exhibited before an "audience."

        Clearly, common sense dictates that there can be an audience of one; in this case there was often more than one. Appellants urge this Court to read Allen v. Commonwealth, 997 S.W.2d 483 (Ky. App. 1999), to say that if one participates in a sex act with a child that he or she can not also be an "audience." That is not the holding of the case. Admitting that Allen is a fact-specific case, the Court of Appeals merely found that the minor involved did more than simply exhibit herself to each customer; she actively sought to, and did, commit prostitution. Here, in addition to committing sex acts, each Appellant also watched sex acts performed by other people. The watching

was obviously for a prurient purpose. This is the essence of what pornography is designed to do. Under the facts of this case, "an audience may consist of one person, such as the accused herein." Alcorn v. Commonwealth, 910 S.W.2d 716 (Ky. App. 1995). Consequently, the Appellants were not entitled to a directed verdict, and the trial court is affirmed on this issue.

 

Clark v. Com., 267 S.W.3d 668 (Ky., 2008)

    Appellant, David A. Clark, appeals his conviction by a Hardin Circuit Court jury of one count of first-degree rape, seven counts of first-degree sodomy, three counts of second-degree sodomy, eight counts of incest, one count of promoting a sexual performance by a minor, two counts of using a minor in a sexual performance, one count of criminal attempt to commit a sexual performance by a minor, and two counts of criminal attempt to commit use of a minor in a sexual performance. In sum, Appellant was found guilty of twenty-five felony offenses, all of which were committed [267 S.W.3d 672] against his two biological children and the child of his live-in girlfriend. Appellant appealed his convictions as a matter of right pursuant to Ky. Const. § 110(2)(b). Thereafter, this Court designated the case for oral argument.

     Under KRS 531.320, "[a] person is guilty of promoting 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." (emphasis added). The definition of produce is "to compose, create, or bring out by intellectual or physical effort." Merriam Webster’s Collegiate Dictionary 930 (10th ed.1998). The definition of direct is "to carry out the organizing, energizing, and supervising of an act. Id. at 328. Additionally, KRS 531.300(7) defines "promote" as meaning "to prepare, publish, print, procure or manufacture, or to offer or agree to do the same."

     Of import, however, is that the common course of conduct which supports both of these convictions did not require the proof of a fact in existence which the other did not. It is true that an overlap of proof does not, of its own accord, establish a double jeopardy violation. Dishman v. Commonwealth, 906 S.W.2d 335, 341 (Ky. 1995) (citing United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992)). However, an inability to point to the requirement of at least one mutually exclusive fact in existence does. Although, the Commonwealth argues that KRS 531.310 requires the additional element of engaging the minor in the sexual performance, which was satisfied when Appellant pushed V.P. up and down on M.C., we are unpersuaded by this logic.

     For the foregoing reasons, we hereby reverse and vacate Appellant’s conviction for promotion of a sexual performance with a minor as violative of double jeopardy, but affirm all remaining convictions.

 

Logston v. Com., 973 S.W.2d 70 (Ky. App., 1998)      

We begin our case law decision with Mattingly v. Commonwealth, Ky.App., 878 S.W.2d 797 (1993). While Mattingly is factually distinguishable from the case at bar, it provides some helpful discussion of the relevant issues. In Mattingly, the eleven-year-old girl was photographed with her knowledge in various stages of undressing, including being totally nude. Since the victim’s conduct included the "willful or intentional exhibition of the genitals," the sexual conduct by a minor at issue in Mattingly involved the definition under KRS 531.300(4)(b). To the extent that Mattingly discusses the KRS 531.300(4)(b) definition, it is not in point. However, Mattingly also had at issue the definition of sexual conduct by a minor at KRS 531.300(4)(d)–the same issue that is before us. In fact, this Court in Mattingly went so far as to state that the conduct set out in KRS 531.300(4)(d) did not "enjoy the protection of the First Amendment[.]" Id. at 799.

        Mattingly correctly recognized the importance of New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). To fully understand Mattingly and the Kentucky statutory scheme regarding sexual exploitation of minors, we too must examine Ferber. In Ferber the Supreme Court of the United States stated: "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id., 458 U.S. at 757, 102 S.Ct. at 3355. See also Mattingly, 878 S.W.2d at 799. While the two films at issue in Ferber were "devoted almost exclusively to depicting young boys masturbating[,]" the Supreme Court discussed in broad terms the First Amendment considerations of a state legislature prohibiting the "dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene[.]" Id., 458 U.S. at 752, 753, 102 S.Ct. at 3352. The Supreme Court noted that Ferber constituted its "first examination of a statute directed at and limited to depictions of sexual activity involving children." Id., 458 U.S. at 753, 102 S.Ct. at 3352-53. In discussing obscenity, the Supreme Court in Ferber stated that Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), "a majority of the Court agreed that a ‘state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.’ " Id., 458 U.S. at 755, 102 S.Ct. at 3353. The Supreme Court then contrasted the constitutional issues regarding child pornography statutes with the constitutional issues regarding obscenity statutes as follows:

Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

        First. It is evident beyond the need for elaboration that a State’s interest in "safeguarding the physical and psychological wellbeing of a minor" is "compelling." … "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens."….

        The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance…..

The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

        Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. ….

        Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material … has a literary, artistic, political or social value." Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.

        Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation….

        Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work….

        Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not[ ] incompatible with our earlier decisions…. When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.

        Ferber, 458 U.S. at 756-764, 102 S.Ct. at 3354-58 (footnotes omitted).

        The prohibition against "sexual conduct by a minor" set forth in KRS 531.300(4) is directed at forbidding child pornography; therefore, under Ferber the state is not required to limit that prohibition to obscene sexual conduct as obscenity is defined in Miller. Rather, as the Supreme Court in Ferber stated:

        The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.

        Id., 458 U.S. at 764, 102 S.Ct. at 3358. Thus, the definition of "obscene" at KRS 531.300(3) is constitutional under the ruling of the Supreme Court in Ferber.

        Having determined that KRS 531.310 is constitutional, we will now address the question of whether Logston’s conduct is covered by the statute. We find two cases to be persuasive in determining whether Logston’s actions violated KRS 531.300(4)(d). In People v. Batchelor, 800 P.2d 599 (Colo.1990), the Supreme Court of Colorado affirmed the conviction of a father for sexual exploitation of his nine-year-old daughter on the theory that the photographs he had taken of the young girl depicted "erotic nudity." The statute defines "erotic nudity" in part as follows:

[T]he display of the … undeveloped or developing genitals or pubic area of the human male or female child, … or the undeveloped or developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

        Id. at 600, note 1. While the young girl was asleep, her father photographed her without her knowledge. The photographs showed her in the nude from the waist down. Before photographing her, the father had moved her body into various positions to expose her genitals and anus for close-up pictures. The Court noted that the statute "contains sufficiently particularized standards so that it is not unconstitutionally vague…. Thus, only those depictions of nudity taken for the purpose of sexual gratification or stimulation are proscribed by the statute." Id. at 603. The Court held that there "was sufficient evidence from which the trier of fact could conclude beyond a reasonable doubt that Batchelor took the photographs for the purpose of sexual gratification as required by the statute." Id. at 605.

        In a California case, People v. Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327 (1995), the Court of Appeal reversed the trial court’s dismissal of various charges against the defendant including "three counts of using a minor to pose for visual depictions of sexual conduct[.]" Id., 30 Cal.App.4th at 1747, 37 Cal.Rptr.2d at 330. The statute at issue "authorizes felony charges against someone who ‘knowingly … induces … a minor under the age of 17 … to engage in … posing … for purposes of preparing a … photograph … involving sexual conduct by a minor under the age of 17 years….’ " Id., 30 Cal.App.4th at 1752, 37 Cal.Rptr.2d at 333. "The statute defines ‘sexual conduct’ as … ‘exhibition of the genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer[.]’ " Id., 30 Cal.App.4th at 1753, note 4, 37 Cal.Rptr.2d at 333, note 4. The Court held that "[t]he statute describes the forbidden ‘sexual conduct’ with sufficient particularity to satisfy the specificity requirement in Ferber." Id., 30 Cal.App.4th at 1753, 37 Cal.Rptr.2d at 333.

        Kongs’ conduct included commercially photographing young girls while they were fully clothed but posed in such a manner as to expose their underwear. The photographs at issue focused on the area between the young girls’ legs and were referred to as "crotch shots." Kongs admitted that the photographs of the young girls’ panties gave him the feeling of "exhilaration" and described it as "a fetish." Id., 30 Cal.App.4th at 1747, 37 Cal.Rptr.2d at 330. In applying the California statute, the Court noted six factors that have been used by numerous federal courts "for a trier of fact to consider when determining what constitutes a ‘lascivious exhibition of the genitals or pubic area.’ " Id., 30 Cal.App.4th at 1754, 37 Cal.Rptr.2d at 334. In holding that there was sufficient evidence to try Kongs, the Court stated: "This ‘unnatural focus[ ] on a minor child’s clothed genital area with the obvious intent to produce an image sexually arousing to pedophiles’ is precisely the harm addressed by the child pornography laws." Id., 30 Cal.App.4th at 1756, 37 Cal.Rptr.2d at 335 quoting U.S. v. Knox, 32 F.3d 733, 750 (3rd Cir.1994), cert. den., 513 U.S. 1109, 115 S.Ct. 897, 130 L.Ed.2d 782. 513 U.S. 1109, 115 S.Ct. 897, 130 L.Ed.2d 782 (1995).

        Thus, the Court in Batchelor concluded that the nude photographs of the sleeping daughter depicted "erotic nudity" because they were for the purpose of "sexual gratification." The Court in Kongs concluded that the "crotch shots" of the young models exhibited the pubic area for the "purpose of sexual stimulation of the viewer." And, we conclude that the videotape at issue herein depicts the victim in a manner that "the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving a minor." KRS 531.300.

        Logston’s other arguments that rely upon Miller v. California, supra, and Bach v. Commonwealth, Ky.App., 703 S.W.2d 489  (1985), are without merit. As thoroughly discussed previously, Ferber provides the constitutional standards for child pornography, not Miller. In Bach this Court specifically noted that the Legislature had not amended the definition of "obscene" as defined at KRS 531.300(3), and this Court applied the then existing definition of "obscene" which followed the Miller standard. In apparent response to Bach, which was rendered on November 22, 1985, the Legislature during its 1996 Regular Session changed the definition of "obscene" at KRS 531.300(3) to its current version. The judgment of the Fayette Circuit Court is affirmed.

 

Payne v. Com., 623 S.W.2d 867 (Ky., 1981)

Appellant complains that it is unclear whether the homosexual or lesbian activity prohibition includes such seemingly innocuous activity as "two females embracing or two males standing with their arms around each other." As this court has noted, "… common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Insurance Commission, Ky., 450 S.W.2d 235, 237 (1970). The definitional section read as a whole, coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. The possibility of unreasonable enforcement of any statutory prohibition always exists no matter how precise the statute and judicial interpretations of it.

        A similar analysis dispenses with appellant’s "circular definition" contention. It is true that KRS 531.300(4)(b) and (d) include in the definition of "sexual conduct by a minor" the obscene exhibitions of genitals and nudity. It is also true, as appellant claims, that KRS 531.300(3)(b), in providing a part of the definition "obscene," requires the material to depict or describe sexual conduct by a minor in a patently offensive way. Were this the entire definition of obscene, the reference back and forth between the sections may well be confusing to the ordinary person of common sense. However, appellant fails to note that the other two subsections in the definition of obscene, KRS 531.300(3)(a) and (c), which, together with KRS 531.300(3)(b), must be considered in determining whether the exhibition of male or female genitals or nudity constitutes "sexual conduct by a minor." Thus, in the subject action the exhibition or exposure of the unclothed human male or female genitals, pubic area or buttocks, or the female breast, as included in KRS 531.300(4)(b) and (d), is obscene and sexual conduct under the statute. The method of legislation by definitional cross-reference is one of common usage. It makes for clarity rather than vagueness.

        Appellant submits that a clear and precise enactment may nevertheless be broad if in its reach it prohibits constitutionally protected conduct.

        The primary purpose of the Kentucky statute relating to sexual exploitation of minors is clearly to protect children from the conduct of being used in a sexual performance. The word "use" is the cornerstone of the statute (KRS 531.310), and appellant’s argument relating to statutes dealing with promoting and distributing materials portraying a sexual performance by a minor misses the mark when applied to the statute upon which he was charged and convicted. A greater degree of constitutional scrutiny is given statutes prohibiting the promotion and distribution of such materials. The courts clearly distinguish statutes protecting a minor from actual use in a sexual performance. Such conduct does not give rise to the same special free speech protection given the film or other media. In U.S. v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672, 679 (1968), the Supreme Court of the United States stated: "We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea."   

Gilbert v. Com., 838 S.W.2d 376 (Ky., 1991)

     The terms used to specify the elements of the offense set out in KRS 531.310 are assigned statutory definitions in KRS 531.300. We have yet to confront what the General Assembly means by a "sexual performance." KRS 531.300(6) defines "sexual performance" as "any performance or part thereof which includes sexual conduct by a minor." [Emphasis added.] In turn, "sexual conduct by a minor" is defined in KRS 531.300(4) in four subparts. KRS 531.300(4)(d) covers "[t]he exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, … in any resulting motion picture, photograph or other visual representation," and it contains a family exclusion: "exclusive of exposure portrayed in matter[s] of a private, family nature not intended for distribution outside the family." The Majority Opinion has avoided the family exclusion in subpart (d) ("exposure, in an obscene manner") by suggesting that the present situation fits instead under subpart (b), which defines "sexual conduct by a minor" as including "willful or intentional exhibition of the genitals." This is illogical, for two reasons:

        1) The phrase being defined in KRS 531.300(4) is "sexual conduct by a minor" and the proof offered in this case to convict the appellants is that the conduct by the minors was not their "willful or intentional exhibition of the genitals," but on the contrary was the coerced exposure of their unclothed bodies. The terms "willful or intentional" as used in the statutory definition refer to the conduct of the exploited child, not to the conduct of the criminal offender. It is the conduct of the minor which is being defined.

        2) It would be irrational for the General Assembly to provide a "family exclusion" for the "exposure" of the child’s "unclothed" body but not for the child’s "willful or intentional exhibition of the genitals." We should not interpret a statute to provide "an absurd or wholly unreasonable conclusion." Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), and cases cited therein

 

Williams v. Com., 178 S.W.3d 491 (KY, 2005)       

KRS 531.300 et seq. pertains to the Sexual Exploitation of Minors. KRS 531.310(1) provides that "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." A "sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a minor[.]" KRS 531.300(6). A "[p]erformance" includes "any play, motion picture, photograph or dance." KRS 531.300(5) (emphasis added).

        Here, the plain language employed in the definition of "performance" focuses on "any photograph." The singular form of "photograph" read in conjunction with the term "any" clearly indicates that the Legislature intended prosecution for each differing photograph. Accordingly, a person who generates differing and multiple prohibited photographs or causes a child to engage in the creation of such photographs commits multiple offenses of KRS 531.310, even though each such differing photograph involves the same subject captured in a narrow timeframe

 

Baker v. Com., 103 S.W.3d 90 (Ky., 2003)   

Although not presented to the trial court, Appellant also offers the novel theory that suppression was warranted because undeveloped film does not constitute a "photograph" within the context of KRS 531.300(5), and thus was not evidence of the crime for which he was charged. Relying on chemistry principles, Appellant asserts that undeveloped film has no visual image until it undergoes a chemical reaction during the developing process. Albeit interesting, we find no merit in Appellant’s proposition, and agree with the reasoning of the Florida District Court of Appeals Schneider v. Florida, 700 So.2d 1239, 1240 (Fla.Dist.Ct.App.1997):

        Webster’s defines the term photograph as "a picture or likeness obtained by photography" with the root word photography defined as "the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light." Merriam Webster’s Collegiate Dictionary 857 (10th ed.1993) (emphasis added). Hence, by definition, a photograph is the exposure of the film at the time the picture is snapped. A hard copy of the photograph is a print and the developed film would be a negative.

        United States v. Smith, 795 F.2d 841 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987) (undeveloped film constitutes a "visual depiction" within the meaning of 18 U.S.C. § 2252(a), the Federal Sexual Exploitation Statute). Furthermore, the trial court found that seizure of the camera and film was proper and, once processed, the pictures developed from the film were certainly evidence of Appellant’s use of a minor in a sexual performance.

 
 

KRS 531.310 Use of a minor in a sexual performance.

(1) A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance.

(2) Use of a minor in a sexual performance is:

(a) A Class C felony if the minor so used is less than eighteen (18) years old at the time the minor engages in the prohibited activity;

(b) A Class B felony if the minor so used is less than sixteen (16) years old at the time the minor engages in the prohibited activity; and

(c) A Class A felony if the minor so used incurs physical injury thereby.

Effective: July 15, 1986    History: Amended 1986 Ky. Acts ch. 289, sec. 8, effective July 15, 1986. – Created  1978 Ky. Acts ch. 219, sec. 3, effective June 17, 1978.

 
ANNOTATION FOR THIS STATUTE:
 

 Keim v. Commonwealth Of Ky. (Ky., 2010)

     With these rules in mind, we find that the three witnesses’ statements concerning Appellant’s possession of pornography were relevant. Our conclusion derives from a plain reading of KRS 531.310, which provides in pertinent part: "A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor toengage in a sexual performance." As is clear, the inducement of a minor to engage in a sexual performance is a violation of this statute. Thus, it is quite conceivable that the jury could have drawn a reasonable inference that Appellant used the pornography as a catalyst to arouse the children, inducing them into performing a sexual act while he observed. See United States v. Postel, 524 F. Supp. 2d 1120, 1123 (N.D. Iowa 2006) (where the defendant distributed child pornography to induce, arouse, and entice the child victim to engage in prohibited sexual contact with him). Therefore, we find the testimony regarding Appellant’s possession of pornography relevant in this case. 

Little v. Commonwealth, No. 2005-SC-000578-MR (Ky. 1/22/2009) (Ky., 2009)

   Little was convicted under KRS 531.310 and KRS 531.320. Both statutes require a showing of the defendant’s intent. See Mattingly v. Commonwealth, 878 S.W.2d 797, 800 (Ky. App. 1993) (intent is an element under KRS 531.310); Purcell v. Commonwealth, 149 S.W.3d 382, 389 (Ky. 2004) (intent is a requirement under KRS 531.320). As to intent, this Court has held that it "may be inferred from the actions of a defendant or from the circumstances surrounding those actions." Marshall v. Commonwealth, 60 S.W.3d 513, 518 (Ky. 2001). Likewise, intent may be inferred from the defendant’s knowledge. Id. Finally, we are mindful that a "person is presumed to intend the logical and probable consequences of his conduct[.]" Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky. 1997).

        The evidence was sufficient to overcome Little’s motion for a directed verdict. With respect to KB, the circumstances of the video footage establish Little’s intent. Little is tossing KB in the air while Burke is filming her bare buttocks. It is wholly unbelievable that Little would not be aware Burke was filming the child’s genital area given the vantage point Burke must have assumed in order to capture the video. Likewise, Little himself filmed KB on the couch. He pushed her legs apart and tickled her stomach. A reasonable juror is entitled to conclude that Little intended these actions. 

Starr v. Commonwealth, No. 2007-CA-002067-MR (Ky. App. 5/8/2009) (Ky. App., 2009)

    Mark Starr brings this appeal from a September 11, 2007, Order of the Bullitt Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate sentence. We affirm.

     Appellant was indicted by the Bullitt County Grand Jury upon the offenses of use of a minor in a sexual performance (Kentucky Revised Statutes (KRS) 531.310) and tampering with physical evidence (KRS 524.100). Pursuant to a plea agreement with the Commonwealth, appellant plead guilty to both charges and was sentenced to ten-years’ imprisonment on March 20, 2006. The judgment also reflected that the ten-year sentence was to run concurrently with a federal sentence he was serving. 

Clark v. Com., 267 S.W.3d 668 (Ky., 2008)

  Of import, however, is that the common course of conduct which supports both of these convictions did not require the proof of a fact in existence which the other did not. It is true that an overlap of proof does not, of its own accord, establish a double jeopardy violation. Dishman v. Commonwealth, 906 S.W.2d 335, 341 (Ky. 1995) (citing United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992)). However, an inability to point to the requirement of at least one mutually exclusive fact in existence does. Although, the Commonwealth argues that KRS 531.310 requires the additional element of engaging the minor in the sexual performance, which was satisfied when Appellant pushed V.P. up and down on M.C., we are unpersuaded by this logic.

        The Commonwealth asserts that the focus of the "promotion" statute is the direction of the sexual performance, while the focus of the "use" statute is the engagement in the performance. However, as the above discussion clearly demonstrates, the Commonwealth’s argument points to a distinction without a difference. The "use" statute requires only that the offender either passively ("consent") or actively ("employ") facilitate a minor’s participation in a visual representation of a sexual [267 S.W.3d 678] performance before an audience. Woodard, 219 S.W.3d at 728. ("Use of a Minor in a Sexual Performance requires passive observation."); KRS 531.310. And, in effect, under the facts in question, the promotion statute, KRS 531.320 prohibits the same conduct. 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.

        Therefore, we hold that Appellant’s convictions under KRS 531.310 and KRS 531.320 violate double jeopardy as they fail the Blockburger test, representing convictions which arise out of a single course of conduct and not requiring proof of a fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182; Burge, 947 S.W.2d at 811.

    In the present instance, however, Appellant’s convictions under KRS 531.310 and KRS 531.320 carry the same weight of punishment. In particular, both are Class B felonies by virtue of the fact that the minor(s) involved were less than sixteen years of age at the time. KRS 531.310(2)(b); KRS 531.320(2)(b). Because the facts which gave rise to these convictions arose from a single episode and each carries identical weight upon sentencing, vacating either sentence would suffice to remedy the double jeopardy violation. Thus, finding no viable distinction between Appellant’s convictions under KRS 531.310 and KRS 531.320, we hereby reverse and vacate Appellant’s conviction for promoting a sexual performance by a minor under KRS 531.320. 

Westerfield v. Commonwealth, No. 2006-CA-000592-MR (Ky. App. 4/6/2007) (Ky. App., 2007)

   The Blockburger rule is the "sole basis for determining whether multiple convictions arising out of a single course of conduct constitutes double jeopardy." Barth v. Commonwealth, 80 S.W.3d 390, 399 (Ky. 2001) (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999)). "The test… to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. (quoting Blockburger v. United States, 284 U.S. 299, 305 (1932)). As stated above KRS 531.310 requires: (1) to employ, consent, authorize or induce; (2) a minor; (3) to engage in a sexual performance. The elements of KRS 531.335 are to: (1)knowingly; (2) have in possession or control; (3) any matter visually depicting an actual sexual performance by a minor; and (4) with knowledge of the matter’s content, character, and that the sexual performance is by a minor. Westerfield concedes that KRS 531.310 requires additional proof of consent, authorization, or inducement for the minor to engage in a sexual performance. KRS 531.335 requires possession of the material depicting the sexual performance which KRS 531.310 does not. As a result, KRS 531.335 is not a lesser included offense of KRS 531.310. The offense of use of a minor in a sexual performance was completed when Westerfield induced A.M.R. to remove her shirt and photographed her. His decision to retain the photograph in his possession was a distinct step that constituted a separate criminal offense under 531.335. Therefore, the double jeopardy protection was not implicated.

 
Baker v. Com., 103 S.W.3d 90 (Ky., 2003)

      Furthermore, we fail to perceive any prejudice to Appellant. Defense counsel conceded during the conference that the indictment sufficiently charged Appellant with violating KRS 531.310, and readily admitted that he was familiar with all of the language contained therein. And while Appellant claims prejudice because he had already questioned witnesses about whether there was inducement, defense counsel neither requested additional time nor recalled any witnesses following the trial court’s ruling on instructions despite being told he could do so.

        Contrary to Appellant’s assertion, the indictment was not amended to include the additional language of KRS 531.310. However, the trial court had the discretion to amend the indictment in this case pursuant to RCr 6.16. Appellant was aware of the language contained in KRS 531.310, and the evidence was certainly sufficient to warrant an instruction including that additional language. We find no error in the instructions.

        For the reasons stated herein, the judgment and sentence of the Madison Circuit Court are affirmed.

      Justice Keller-concurring: Here, the jury instructions unquestionably broadened the indictment’s specific allegation and permitted the jury to find Appellant guilty without finding that Appellant undertook some affirmative act to cause J.R. to participate in a sexual performance.13 I conclude, however, that the indictment did not mislead Appellant or cause him to believe that the Commonwealth was alleging liability only under KRS 531.310 "induces" language. Four (4) months before trial, Appellant filed a Motion to Consolidate Counts in which he stated both that he was "charged with eleven counts of `employ[ing], consent[ing] to, authoriz[ing], or induc[ing] a minor to engage in a sexual performance’" and that "[t]he key element as pertaining to the defendant’s guilt is whether he employed, consented to, authorized, or induced a minor to engage in a sexual performance." In my view, this motion evidences Appellant’s understanding that the Commonwealth would seek to impose liability for each of the bases outlined in KRS 531.310, and, as such, it reflects knowledge that refutes Appellant’s assertion that he was misled. Further, the actions taken (and not taken) by Appellant after the trial court overruled his motion for a directed verdict (and informed counsel that it intended to instruct the jury on not only the "induces" basis, but also the "employs" and "authorizes" bases of KRS 531.310 liability) are not what one would expect from someone who had just been "sucker-punched" by an unexpected, mid-trial change of theory on the part of the Commonwealth. Specifically, Appellant, through his trial counsel: (1) made little effort to minimize his exposure to allegedly unexpected bases of liability and, in fact, argued that, if the court had decided not to limit liability to "induces," it should instruct on all of the KRS 531.310 bases of liability, including "consents to," which the trial court had indicated its intention not to include in the instructions; (2) did not ask for a continuance to retool the defense; (3) presented no evidence in his own defense, and did not recall any of the Commonwealth’s witnesses in order to mount a factual defense to the alternative bases for KRS 531.310 liability; and (4) focused his closing argument upon a technical, legal argument, which was wholly unrelated to the difference between "induces" and the other KRS 531.310 bases of liability and which Appellant had raised previously in a pre-trial motion four (4) months prior to trial. I also observe that, in support of this argument, counsel referenced the previous day’s cross-examination testimonyand utilized poster-sized exhibits reproducing statutory language during his closing — suggesting that this defense was not cobbled together overnight after a surprise ruling by the trial court. In short, Appellant’s trial counsel, no doubt recognizing that he had little ability to muster a factual defense to this offense given his client’s admission that he took nude photographs of his pre-teen step-granddaughter, made a clever attempt — albeit a bit of a "Hail Mary" — to win a directed verdict on a technicality. Appellant, however, "was not misled, surprised or thrown off guard except insofar as he chose to shoot the gap in reliance upon a mere technical defect of which he was fully aware."  And, here, even "reliance" was absent because, when the trial court denied Appellant’s motion for a directed verdict of acquittal — and thereby prevented Appellant from exploiting this technicality — Appellant was equipped to mount a defense against the indictment on legal rather than factual grounds. As such, Appellant’s defense preparations would not have been prejudiced by an amendment of the indictment, and the variance between the indictment and the instruction was thus a harmless error 

Payne v. Com., 623 S.W.2d 867 (Ky., 1981) IV.

Appellant was improperly convicted of Counts 3, 4, 8, 9, 17, 19, 20, 21, 23, 24, 27, 28 and 29 of use of a minor in a sexual performance because the evidence which the Commonwealth introduced did not depict sexual conduct by a minor."

        In support of his argument on this issue, appellant relies on the Fourteenth Amendment to the United States Constitution and to Section Eleven of the Kentucky Constitution. Having found that KRS 531.310 is not unconstitutionally vague or broad as measured by the First and Fourteenth Amendments to the United States Constitution and by Sections Eight and Eleven of the Kentucky Constitution, such finding carries with it the validity of the definition statute (KRS 531.300) since it was an integral part of the consideration required to be given in the determination of the validity of KRS 531.310.

        Appellant challenges the sufficiency of the evidence as measured by these constitutional provisions to prove some of the counts of using a minor in a sexual performance. While admitting that the evidence does depict sexual conduct as defined by KRS 531.300(4)(a) and (b) as to some of the counts of the indictment, appellant charges that the evidence does not however show sexual conduct as to other counts of the indictment.

        Appellant unsuccessfully sought to have the trial judge dismiss all counts of the indictment in which videotapes or photographs were involved. He argued that these particular counts of the indictment were not covered by KRS 531.310, since, allegedly, neither the photographs nor videotapes depict sexual conduct and were taken for personal viewing and not for profit. This argument of the appellant must fall for two reasons: (1) the statute under which the appellant was indicted, tried, and convicted properly charged the offenses, and (2) there was sufficient evidence to take the case to the jury. Counsel for appellant argues that, "Appellant was denied due process of law because ‘no rational trier of fact could have found guilt beyond a reasonable doubt.’ " However, a review of the evidence as it pertained to the challenged counts does not support appellant’s contention. The answer to this issue is found in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), wherein we said:

        "If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. Applying that criterion, we cannot avoid the conclusion that the verdict of the jury in this case was not unreasonable."

        The trial court correctly weighed the evidence and properly submitted to the jury the issue of using a minor in a sexual performance as charged in the above-numbered counts.

        "V. Appellant’s convictions for eight counts of first degree sodomy and one count of first degree of sexual abuse must be reversed because of the unconstitutional conclusive presumption that a child under twelve is incapable of consenting to those sexual acts."

        Eight counts of the indictment for first-degree sodomy (KRS 510.070(1)(b)(2), a Class A felony, and one count for first-degree sexual abuse (KRS 510.110(1) (b)(2), a Class D felony, involve a minor less than twelve years of age. Both KRS 510.070 and 510.110 contain a conclusive presumption provision that a minor twelve years of age cannot consent to sodomy or sexual abuse. In further dealing with lack of consent, it is stated in KRS 510.020(1) and (3)(a) that:

"Lack of consent.-(1) Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim. ….

(3) A person is deemed incapable of consent when he is:

(a) Less than 16 years old …."

        Appellant asserts that his convictions cannot stand because they are based on an irrational conclusive presumption in violation of the Fourteenth Amendment to the United States Constitution and Section Eleven of the Kentucky Constitution.

        In dealing with the philosophy, not constitutionality of the legislation but with the philosophy itself, of establishing an age at which a person is conclusively presumed to be unable to consent to an act of sex, this court has dealt with it at length. We have not, however, answered the question of whether the legislature can constitutionally establish an age at which a person is conclusively presumed to be unable to consent to an act of sex. Neither counsel for appellant nor counsel for the Commonwealth has referred this court to an opinion of any court which would deny or sanction the constitutionality of such legislation. Our independent research has not revealed such authority.

        It is hornbook law that sex-oriented offenses, especially those involving minors and more especially involving minors in the age bracket of ten to twelve years, have had special attention not only by the legislature but by the courts generally. This court, in speaking to the age of consent proposition, Merriss v. Commonwealth, 287 Ky. 58, 151 S.W.2d 1030 (1941), said, "In the reign of Queen Elizabeth carnal knowledge of a female child under ten years of age was by statute made a felony even though she consented to the act …." Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024 (1910), this court was faced with a conviction of the crime of carnally knowing a female under the age of sixteen years. The purpose of the statute was discussed at length with this conclusion:

        "… The statute was enacted to protect female children who are of such tender years as to be unable to appreciate the enormity of this offense, and the law should be so administered and construed as to not only protect them from persons who actually commit the act of carnal intercourse, but as well to save them from those who endeavor to do so…."

        Lair v. Commonwealth, Ky., 330 S.W.2d 938 (1960), this court was concerned with the violation of the statute prohibiting indecent and immoral practices. In differentiating this statute from others dealing with sex offenses, we wrote:

        "… KRS 435.100 was enacted to protect infants, either male or female, under the age of eighteen years from being carnally known, while KRS 435.105 is directed to the protection of infants under the age of fifteen years against indecent and immoral practices by one over the age of seventeen years. Each is directed to a specific but different social problem and constitutes a separate and distinct offense…."

        Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (1977), this court was faced with a conviction on charges of sodomy in the first degree, assault in the second degree, and unlawful imprisonment in the second degree. In the course of the opinion we undertook to demonstrate the wisdom of statutes dealing with different ages of consent. In doing so, we quoted liberally from the Commentary accompanying KRS 510.140 as follows:

        "But the basic purpose of KRS 510.140 is to preserve the concept of statutory rape and statutory sodomy. When read in conjunction with the rape and sodomy statutes, KRS 510.140 is designed primarily to prohibit nonconsensual sexual intercourse or deviate sexual intercourse under two circumstances: (i) when the victim is 14 or 15 and the defendant is less than 21; or (ii) when the victim is 12, 13, 14, or 15 and the defendant is less than 18 years of age. In this context the ages of the defendant and the victim are critical. Force is not an element of this offense. The victim is statutorily incapable of consent. However, mistake as to age is a defense under KRS 510.030.

        The purpose in denominating such conduct between persons within the specified age groups as sexual misconduct rather than rape or sodomy is to eliminate an undesirable stigma. In such cases the defendant may well have been persuaded by the ‘victim’ to engage in the proscribed conduct. It seems unnecessarily harsh to have a defendant within the prescribed age limitation who has been convicted of such a statutory offense to bear a criminal record labeling him as a ‘rapist’ or ‘sodomist.’ KRS 510.140 takes a more realistic approach to the penalty imposed while at the same time prohibiting the undesirable conduct.

        If the accused is 21 or over and the victim is less than 16, the offense constitutes third degree rape. If the accused is 18 or older and the victim is under 14, the offense constitutes second degree rape. Any sexual intercourse with a person less than 12 years old constitutes first degree rape regardless of the age of the accused."

        The Commentary to Chapter 510, Sexual Offenses, deals with the ages of consent, with the following reasoning:

        "The critical ages for offenses prohibited by this Chapter are 12, 14 and 16. Age 12 was chosen to protect pre-puberty victims. Sexual intercourse with a child less than 12 years of age indicates a considerable probability of aberration in the aggressor. Age 14 was chosen to protect children in the period of puberty when the child arrives at the physical capacity to engage in intercourse but remains seriously deficient in comprehension of the social, psychological, emotional and even physical significance of sexuality. It is still realistic to regard a child under 14 years of age as victimized. Age 16 was chosen to cover that period of later adolescence when the chief significance of sexual behavior is its contravention of the moral standards of the community."

"Age limit-In most jurisdictions, an arbitrary age of consent has been designated by statute without reference to the physical development of the female. The age of consent has been fixed at ages varying from 10 to 18 years…."

65 Am.Jur.2d, Rape, Sec. 17, p. 770.

"Consent-Since, by statutes in many jurisdictions, a female under a certain age is declared incapable of consenting to an act of intercourse, it is no defense in a prosecution for statutory rape that she did, in fact, consent."

65 Am.Jur.2d, Rape, Sec. 38, p. 782.

        Michael M. v. Superior Court of Sonoma County, Calif., — U.S. —-, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), the question presented to the Supreme Court of the United States was whether California’s statutory rape law violated the equal protection clause of the Fourteenth Amendment to the United States Constitution by providing gender-based classifications. Appellant, a 17 1/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18 years in violation of the California statutory rape law. Challenge to the statute was made on constitutional grounds asserting that the statute unlawfully discriminated on the basis of gender. In dealing with the subject, the Supreme Court wrote that the legislature may provide for special problems of women. Appellant contended that the statute was unconstitutional as it applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Therein, it is stated:

        "… Petitioner argues that the statute is flawed because it presumes that as between two persons under 18, the male is the culpable aggressor. We find petitioner’s contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by the legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men …."

        The Supreme Court of California found that the classification "male and female" was supported not by mere social convention but by the psychological fact that it is the female exclusively who can become pregnant. It then portrayed the tragic human cost of illegal teenage pregnancies, including the large number of teenage abortions, the medical risks associated with teenage pregnancies, and the social consequences of teenage childbearing. It concluded that the state has a compelling interest in preventing such conditions and that the California statute did not violate the Fourteenth Amendment to the United States Constitution. The United States Supreme Court affirmed the reasoning of the California Supreme Court.

        Appellant stresses the impropriety of an irrebuttable presumption against consent. The United States Supreme Court has dealt with the irrebuttable presumption doctrine as it applies to age, but only as it has been considered in civil actions, not in criminal proceedings. Presumptions in the annals of criminal law, both rebuttable and irrebuttable, have been narrowly and cautiously applied. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), it is held that a rebuttable presumption must at least be said, with substantial assurance, to have likely flowed from the proven facts on which it is made to depend. So much for rebuttable presumptions. More stringent must be the test as applied to irrebuttable presumptions. The conclusive presumption of inability to consent is not of recent vintage. It has been with us at least from the reign of Queen Elizabeth of England (1558-1603). Coming to this country as a part of our common law, the doctrine has universally been spoken to by the state legislative bodies. The truth of the facts upon which the presumption has been based are beyond cavil. The state has a recognized interest in the welfare of its citizens who, by reason of age or physical or mental disability, cannot care for themselves. So it is with children of tender years. The conclusive presumption that children less than sixteen years of age are unable to give consent to sex acts is but a further extension of the protective arm of government which is universally followed.

        We have no hesitancy in holding that the irrebuttable presumption that minors, male or female, less than sixteen years of age, which would, of course, encompass those minors twelve years of age, are unable to give consent to sex acts does not violate the Fourteenth Amendment to the United States Constitution or Section Eleven of the Constitution of the Commonwealth of Kentucky   

Mattingly v. Com., 878 S.W.2d 797 (Ky. App., 1993)

To the extent that KRS 531.310 or 531.320 read in conjunction with KRS 531.300(4)(b) might be said to make a crime of the depiction of the mere nudity of a minor, it would certainly run afoul of the First Amendment. Even though this would be so, the other conduct set out in the definitional section does not enjoy the protection of the First Amendment, and the appellants were also charged with some of this conduct. If the definition of "sexual conduct by a minor" is unconstitutional only because it includes "willful or intentional exhibition of the genitals," there is no reason why the remainder of the statutory definition should not stand and KRS 531.310 and 531.320 be interpreted accordingly. See KRS 446.090; City of Pineville v. Farrow, Ky., 273 S.W.2d 56 (1954); also United States v. Thirty Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Nothing in Commonwealth v. Ashcraft, Ky.App., 691 S.W.2d 229 (1985), cited by the appellants, suggests otherwise. We might point out that the jury here was actually instructed that the "sexual conduct by a minor" insofar as exhibition of the genitals was concerned meant "exhibition … in an obscene manner." 

Westerfield v. Commonwealth, No. 2006-CA-000592-MR (Ky. App. 4/6/2007) (Ky. App., 2007)      

The Blockburger rule is the "sole basis for determining whether multiple convictions arising out of a single course of conduct constitutes double jeopardy." Barth v. Commonwealth, 80 S.W.3d 390, 399 (Ky. 2001)  (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999)). "The test… to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."

 

Allen v. Com., 997 S.W.2d 483 (Ky. App., 1998)      

 KRS 531.300(5) defines "performance" as "any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience." KRS 531.300(6) defines "sexual performance" as "any performance or part thereof which includes sexual conduct by a minor."

        The Commonwealth takes the position that a customer who participates in sexual conduct with a minor is an "audience," as that word is used in the definition of "performance." However, we believe the fact that L.M. did more with each customer than merely exhibit herself to him, i.e. she participated in sexual conduct with each customer, removes this case from the ambit of KRS 531.310. We do not believe that KRS 531.310 is intended to apply to instances where one actively participates in sexual conduct with the minor. As such, we do not believe sufficient evidence has been adduced to convict appellant of using L.M. in a sexual performance. Rather, it is our opinion the crime of promoting prostitution in the first degree is the only offense for which appellant could be convicted, given the factual circumstances of this case.

        Accordingly, we affirm appellant’s conviction for the offense of promoting prostitution in the first degree, reverse his conviction of the offense of use of a minor in a sexual performance, and remand this case to the trial court with instructions to dismiss the latter charge

 

Logston v. Com., 973 S.W.2d 70 (Ky. App., 1998)    

Since the decision in this case turns on the definitions used in the statutes, we begin our analysis by addressing the statutory definitions that are at issue. KRS 531.310(1) provides: "A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance [emphasis added]." KRS 531.300(6) provides: " ‘Sexual performance’ means any performance or part thereof which includes sexual conduct by a minor [emphases added][.]" KRS 531.300(5) states that "performance" means in part "any … motion picture…." "Sexual conduct by a minor" is defined at KRS 531.300(4), as follows:

        (a) Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;

        (b) Physical contact with, or willful or intentional exhibition of the genitals;

        (c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or

        (d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family [emphasis added][.]

        For purposes of KRS 531.310, "obscene" means that "the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors [emphases added][.]" KRS 531.300(3). "Matter" means in part "any … motion picture…." KRS 531.300(2). It is agreed by the parties that the definition at issue in this case is the definition of "sexual conduct by a minor" found at KRS 531.300(4)(d).

        Logston argues that "mere nudity of the minor was not ‘obscene’ sexual conduct." We believe that this issue can be narrowly stated as whether the videotape depicting the twelve-year-old nude girl exposing her breasts, buttocks and pubic area while she is in the process of changing her clothes, has as its predominate appeal, when taken as a whole, a prurient interest in sexual conduct involving a minor. We conclude that it does. This conclusion is based upon Logston’s carefully planned manipulation of this young girl dressing and undressing in sexually appealing clothing, his surreptitiously videotaping of her in the nude while her breasts, buttocks and pubic area were exposed and his dubbing of that videotape onto a sexually explicit adult videotape.

        We begin our case law decision with Mattingly v. Commonwealth, Ky.App., 878 S.W.2d 797 (1993). While Mattingly is factually distinguishable from the case at bar, it provides some helpful discussion of the relevant issues. In Mattingly, the eleven-year-old girl was photographed with her knowledge in various stages of undressing, including being totally nude. Since the victim’s conduct included the "willful or intentional exhibition of the genitals," the sexual conduct by a minor at issue in Mattingly involved the definition under KRS 531.300(4)(b). To the extent that Mattingly discusses the KRS 531.300(4)(b) definition, it is not in point. However, Mattingly also had at issue the definition of sexual conduct by a minor at KRS 531.300(4)(d)–the same issue that is before us. In fact, this Court in Mattingly went so far as to state that the conduct set out in KRS 531.300(4)(d) did not "enjoy the protection of the First Amendment[.]" Id. at 799.

        Mattingly correctly recognized the importance of New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). To fully understand Mattingly and the Kentucky statutory scheme regarding sexual exploitation of minors, we too must examine Ferber. In Ferber the Supreme Court of the United States stated: "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id., 458 U.S. at 757, 102 S.Ct. at 3355. See also Mattingly, 878 S.W.2d at 799. While the two films at issue in Ferber were "devoted almost exclusively to depicting young boys masturbating[,]" the Supreme Court discussed in broad terms the First Amendment considerations of a state legislature prohibiting the "dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene[.]" Id., 458 U.S. at 752, 753, 102 S.Ct. at 3352. The Supreme Court noted that Ferber constituted its "first examination of a statute directed at and limited to depictions of sexual activity involving children." Id., 458 U.S. at 753, 102 S.Ct. at 3352-53. In discussing obscenity, the Supreme Court in Ferber stated that Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), "a majority of the Court agreed that a ‘state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.’ " Id., 458 U.S. at 755, 102 S.Ct. at 3353. The Supreme Court then contrasted the constitutional issues regarding child pornography statutes with the constitutional issues regarding obscenity statutes as follows:

Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. 

Williams v. Com., 178 S.W.3d 491 (KY, 2005)               

KRS 531.300 et seq. pertains to the Sexual Exploitation of Minors. KRS 531.310(1) provides that "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." A "sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a minor[.]"

 

Berg v. Com., 20 S.W.3d 475 (Ky. App., 2000)

KRS 532.050(4) provides, in pertinent part, as follows:

        (4) If the defendant has been convicted of any felony offense under KRS Chapter 510, 530.020, 530.064, 531.310, any sexual offense under KRS 506.010 or 506.030, or any other felony offense committed in conjunction with a misdemeanor under KRS Chapter 510, the court shall, prior to determining the sentence, order an evaluation of the defendant to be conducted by the sexual offender treatment program operated or approved by the Department of Corrections or the Department for Mental Health and Mental Retardation Services. The evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant’s amenability to treatment and shall be considered by the court in determining the appropriate sentence. A copy of the evaluation shall be furnished to the Commonwealth and to the defendant. If the defendant is eligible and the court suspends the sentence and places the defendant on probation or conditional discharge, the provisions of KRS 532.045(3) to (8) shall apply. All communications relative to the evaluation and treatment of the sex offender shall fall under the provisions of KRS 197.440 and shall not be made a part of the court record subject to review in appellate proceedings. The defendant shall pay for any evaluation or treatment required pursuant to this section up to the defendant’s ability to pay but no more than the actual cost of the evaluation or treatment.

        (6) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant’s counsel a copy of the presentence investigation report. It shall not be necessary to disclose the sources of confidential information.

        Berg argues that under subsection (6), he is entitled to be advised of the factual contents or conclusions of the sexual offender evaluation and be afforded an opportunity to controvert them. We do not agree, based on the plain language of the statute.

        KRS 532.050 addresses the procedural requirements for sentencing persons convicted of a felony. Subsection (1) requires a presentence investigation report for all persons convicted of a felony. Subsection (3) allows the court to order a defendant to submit to psychiatric observation and examination. Subsection (4) then refers to the evaluation of the defendant "to be conducted by the sexual offender treatment program operated or approved by the Department of Corrections or the Department for Mental Health and Mental Retardation Services." Subsection (6) then mandates that the court advise the defendant of the factual contents and conclusions "of any presentence investigation or psychiatric examinations" and afford an opportunity to controvert them.

        We are of the opinion that subsection (6) refers only to the PSI and to the psychiatric examinations as referred to in subsection (3). The legislature could have included language regarding the sexual offender evaluation in subsection (6); however, it did not. We believe that the legislature intended for the sexual offender evaluation to be treated separately from the PSI and psychiatric examinations. Firstly, subsection (4) specifically provides that a copy of the sex offender evaluation shall be provided to the defendant. There is no similar provision regarding the psychiatric examinations in subsection (3). There is a provision for a copy of the PSI to be furnished to defendant’s counsel. Secondly, subsection (6) states, in regard to the PSI, that "lilt shall not be necessary to disclose the sources of confidential information." Similarly, subsection (4) provides that all communications relative to the evaluation and

treatment of the sex offender shall be privileged, pursuant to KRS 197.440. These distinctions evidence the legislature’s intention that the PSI, psychiatric examination and the sexual offender evaluation be treated differently.

        Accordingly, we conclude that the language in subsection (6) which permits the defendant an opportunity to controvert factual contents and conclusions does not apply to the sexual offender evaluation. Subsection (4) merely states that the defendant shall receive a copy of the evaluation. The defendant is not permitted to controvert the conclusions or recommendations contained therein

 

Jones v. Com., 200 S.W.3d 495 (Ky. App., 2006)

KRS 532.043 provides in unequivocal and mandatory language as follows:

        (1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, KRS 529.030, 530.020, 530.064, 531.310, or 531.320 shall be subject to a period of conditional discharge following release from:

        (a) Incarceration upon expiration of sentence; or

        (b) Completion of parole.

        (2) The period of conditional discharge shall be three (3) years.

        (3) During the period of conditional discharge, the defendant shall:

        (a) Be subject to all orders specified by the Department of Corrections; and

        (b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.

        (4) Persons under conditional discharge pursuant to this section shall be subject to the supervision of the Division of Probation and Parole.

        (5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth’s attorney may petition the court to revoke the defendant’s conditional discharge and reincarcerate the defendant as set forth in KRS 532.060.

        (6) The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.

        While a former version of KRS 532.043 provided that "any person convicted of, pleading guilty to, or entering an Alford plea to a felony [sex] offense . . . shall be sentenced to a period of conditional discharge[,]" the amended version (pursuant to which Jones was sentenced) provided that the felon "shall be subject to a period of conditional discharge[.]" (Emphases added.) Under the amended version of the statute, a three-year period of conditional discharge was not imposed by the trial court as a part of Jones’s sentence. Instead, upon her conviction as a sex offender sentenced in 2001, Jones automatically became subject to the period of conditional discharge as a matter of law. Therefore, the omission of any mention of the statute or of its requirements in the court’s written judgment is not erroneous. Jones is bound by its provisions

 

Com. v. Taylor, 945 S.W.2d 420 (Ky., 1997)  

The Commonwealth argues that Tommy is barred from probation by KRS 532.045(2) which provides as follows:

Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.040, 510.050, 510.070, 510.080, 529.030 to 529.050, 529.070, 530.020, 531.310, 531.320, 531.370, or criminal attempt to commit any of these offenses under KRS 506.010, and, who meets one (1) or more of the following criteria: ….

        (h) A person who in committing any of the offenses enumerated in this subsection has substantial sexual conduct with a minor under the age of fourteen (14) years; or

        (i) A person who occupies a position of special trust and commits an act of substantial sexual conduct.

        (Emphasis added).

        "Position of special trust" is defined in KRS 532.045(1)(b) as a position occupied by a person in a "position of authority" which is defined in (1)(a) as, inter alia, a relative or household member. Consequently, the Commonwealth argues, Tommy is barred from probation because: (1) he is a relative of the victim; (2) he is a member of the same household; and (3) the victim was under the age of fourteen (14) years.

        The Commonwealth also argues that while KRS 640.040 exempts youthful offenders from the limitations of KRS 532.080 (persistent felony offender sentencing) and KRS 533.060 (use of firearms, commission of felonies while on probation, parole, awaiting trial, etc.), it does not exempt the youthful offender from the above provisions of KRS 532.045.

        Tommy counters with two arguments. First, he submits that the Commonwealth cannot appeal the issue of probation at this juncture due to its failure to raise the issue at the initial sentencing hearing of July 22, 1994. At that time, the trial court informed all parties that, depending upon Tommy’s performance in the sexual offender treatment program, he would either be released on probation or remanded to prison to serve the balance of his sentence. Having failed to object or appeal the probation comments of the trial court, Tommy urges that the procedure outlined at the first sentencing hearing has become the "law of the case" and "res judicata."

        The Commonwealth responds that the mere fact the trial judge mentioned that it might consider probation in the future does not put the matter in issue. It contends that it could not appeal from an order which did not finally adjudicate the issue. We agree.

 
 

KRS 531.320 Promoting a sexual performance by a minor.

(1) A person is guilty of promoting 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.

(2) Promoting a sexual performance by a minor is:

(a) A Class C felony if the minor involved in the sexual performance is less than eighteen (18) years old at the time the minor engages in the prohibited activity;

(b) A Class B felony if the minor involved in the sexual performance is less than sixteen (16) years old at the time the minor engages in the prohibited activity; and

(c) A Class A felony if the minor involved in the sexual performance incurs physical injury thereby.

Effective: July 15, 1986  History: Amended 1986 Ky. Acts ch. 289, sec. 9, effective July 15, 1986. – Created  1978 Ky. Acts ch. 219, sec. 4, effective June 17, 1978.

 
ANNOTATION FOR THIS STATUTE:
 

Clark v. Com., 267 S.W.3d 668 (Ky., 2008)

    Therefore, we hold that Appellant’s convictions under KRS 531.310 and KRS 531.320 violate double jeopardy as they fail the Blockburger test, representing convictions which arise out of a single course of conduct and not requiring proof of a fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182; Burge, 947 S.W.2d at 811.

        In Jones v. Commonwealth, we recognized that double jeopardy prohibits the Commonwealth from "`carving out of one act or transaction two or more offenses.’" 756 S.W.2d 462, 463 (Ky.1988) (overruled on other grounds by Burge, 947 S.W.2d at 811) (quoting Milward, Kentucky Criminal Practice § 5.07 (1984)). However, we noted "the Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses." Id. In the circumstance where the Commonwealth has failed to make such an election and a single criminal episode gives rise to multiple convictions, the courts must do so. See id. at 463-464 (holding that when multiple convictions for robbery and receiving stolen property arose from a single criminal event, but were prosecuted as separate offenses, the Court would set the conviction for receiving stolen property aside). Generally, this is accomplished by maintaining the more severe conviction and vacating the lesser offense. See Jordan v. Commonwealth, 703 S.W.2d 870 (Ky.1985) (vacating a conviction for theft—the lesser offense— which was part of a robbery because it violated the principle of multiple punishments for the same crime).

        In the present instance, however, Appellant’s convictions under KRS 531.310 and KRS 531.320 carry the same weight of punishment. In particular, both are Class B felonies by virtue of the fact that the minor(s) involved were less than sixteen years of age at the time. KRS 531.310(2)(b); KRS 531.320(2)(b). Because the facts which gave rise to these convictions arose from a single episode and each carries identical weight upon sentencing, vacating either sentence would suffice to remedy the double jeopardy violation. Thus, finding no viable distinction between Appellant’s convictions under KRS 531.310 and KRS 531.320, we hereby reverse and vacate Appellant’s conviction for promoting a sexual performance by a minor under KRS 531.320.

 

Little v. Com., 272 S.W.3d 180 (Ky., 2008)

 Little was convicted under KRS 531.310 and KRS 531.320. Both statutes require a showing of the defendant’s intent. Mattingly v. Commonwealth, 878 S.W.2d 797, 800 (Ky.App.1993) (intent is an element under KRS 531.310); Purcell v. Commonwealth, 149 S.W.3d 382, 389 (Ky.2004) (intent is a requirement under KRS 531.320). As to intent, this Court has held that it "may be inferred from the actions of a defendant or from the circumstances surrounding those actions." Marshall v. Commonwealth, 60 S.W.3d 513, 518 (Ky.2001). Likewise, intent may be inferred from the defendant’s knowledge. Id. Finally, we are mindful that a "person is presumed to intend the logical and probable consequences of his conduct[.]" Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky.1997).

        The evidence was sufficient to overcome Little’s motion for a directed verdict. With respect to KB, the circumstances of the video footage establish Little’s intent. Little is tossing KB in the air while Burke is filming her bare buttocks. It is wholly unbelievable that Little would not be aware Burke was filming the child’s genital area given the vantage point Burke must have assumed in order to capture the video. Likewise, Little himself filmed KB on the couch. He pushed her legs apart and tickled her stomach. A reasonable juror is entitled to conclude that Little intended these actions.

 

Purcell v. Commonwealth of Kentucky, No. 2001-SC-0707-DG (KY 11/18/2004) (KY, 2004) 

Purcell v. Com., 149 S.W.3d 382 (Ky., 2004)

     Appellant, Jerel Purcell, photographed a nude male child under the age of sixteen, and was subsequently convicted by a Fleming Circuit Court jury of promoting a sexual performance by a minor, KRS 531.320, and sentenced to ten years in prison. The Court of Appeals affirmed and we granted discretionary review. Appellant asserts (1) that subsection (b) of KRS 531.300(4) (definition of "sexual conduct by a minor") is unconstitutionally vague and overbroad; (2) that the instruction under which he was convicted violated his right to a unanimous verdict; and (3) evidence of other crimes, wrongs and acts was improperly admitted against him. We agree, and reverse Appellant’s conviction and remand this case for a new trial.

 
 

Mattingly v. Com., 878 S.W.2d 797 (Ky. App., 1993)   

The appellant Mattingly was originally charged with having committed the offense of Promoting a Sexual Performance by a Minor "when he photographed her in an intentional exhibition of her genitals; or depicting her unclothed pubic area, buttocks or breasts in an obscene manner …," in violation of KRS 531.320. Because the minor was less than 16 years old at the time of the alleged performance, the charge was a Class B felony. At the sentencing phase of his trial, and while the jury was deliberating, this appellant was permitted to plead guilty to an amended charge of criminal facilitation of the use of a minor in a sexual performance, a Class D felony. See KRS 506.080(2)(a). He reserved the right to appeal the constitutionality of KRS 531.320 which he had attacked unsuccessfully in the trial court.

        The appellant Hundley was charged with inducing her child "to engage in a sexual performance in which she posed for photographs in an intentional exhibition of her genitals or depicting her unclothed pubic area, buttocks or breasts, in an obscene manner…." At the sentencing phase of her trial, she, too, requested that she be allowed to plead guilty to a Class D felony so as to be treated the same as Mr. Mattingly.

        The appellants argue that KRS 531.310 and 531.320 are unconstitutionally vague and overbroad because they do not fairly warn what conduct is proscribed and they can be interpreted as proscribing the depiction of simple nudity.

        KRS 531.320 provides that a person is guilty of promoting a sexual performance by a minor when, knowing the character and content of a performance, "he produces, directs or promotes any performance which includes sexual conduct by a minor." KRS 531.300(4) defines "sexual conduct by a minor" as:

(a) Acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;

(b) Physical contact with, or willful or intentional exhibition of the genitals;

(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or

(d) The exposure, in an obscene manner, of the unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family[.]

        The appellants point to subsection (4)(b) of the definitional statute as rendering KRS 531.320 overbroad. According to them, the inclusion of "intentional exhibition of the genitals" within the definition of "sexual conduct of a minor" would criminalize simple nudity which is not permitted under the First Amendment to the United States Constitution.

        The Supreme Court of the United States has stated that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982). For this reason, that Court concluded that child pornography, specifically the portrayal of sexual acts by children or lewd exhibitions of genitalia by children, does not come under the protection of the First Amendment. Id., 458 U.S. at 764, 102 S.Ct. at 3358. Furthermore, the constitutional test for child pornography is different from that for obscenity in that with child pornography a trier of fact need not find that the material appeals to the prurient interest of the average person; the sexual conduct portrayed need not be done so in a patently offensive manner; and the material at issue need not be considered as a whole. Id. Nevertheless, even in the context of child pornography "depictions of nudity, without more, constitute protected expression." Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 1697, 109 L.Ed.2d 98 (1990).

        To the extent that KRS 531.310 or 531.320 read in conjunction with KRS 531.300(4)(b) might be said to make a crime of the depiction of the mere nudity of a minor, it would certainly run afoul of the First Amendment. Even though this would be so, the other conduct set out in the definitional section does not enjoy the protection of the First Amendment, and the appellants were also charged with some of this conduct. If the definition of "sexual conduct by a minor" is unconstitutional only because it includes "willful or intentional exhibition of the genitals," there is no reason why the remainder of the statutory definition should not stand and KRS 531.310 and 531.320 be interpreted accordingly. See KRS 446.090; City of Pineville v. Farrow, Ky., 273 S.W.2d 56 (1954); also United States v. Thirty Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Nothing in Commonwealth v. Ashcraft, Ky.App., 691 S.W.2d 229 (1985), cited by the appellants, suggests otherwise. We might point out that the jury here was actually instructed that the "sexual conduct by a minor" insofar as exhibition of the genitals was concerned meant "exhibition … in an obscene manner."

        The appellants also argue that the definitional section applying to KRS 531.310 and 531.320 is unconstitutionally vague. One of the grounds they advance for this proposition is identical to that raised but rejected by the Kentucky Court in Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981). The appellant Hundley maintains that KRS 531.310 is unconstitutionally vague because the definition of the word "obscene" set out in KRS 531.300 contains the word "prurient" and does not further define that word. This position is untenable. The word "prurient" was used by the Supreme Court in the three-prong test for obscenity announced Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It apparently did not occur to the Court at that time, and it has not occurred to it since, that the word "prurient" is unconstitutionally vague. We are certainly in no position to hold otherwise. Hall v. Commonwealth, Ky., 505 S.W.2d 166 (1974).

        Also, Ms. Hundley maintains that KRS 531.310 is invalid because it does not require a mental state for its violation, thereby violating the requirement set out in New York v. Ferber, supra, that in obscenity cases as well as child pornography cases criminal responsibility may not be imposed without some element of scienter on the part of the defendant. The statute is violated if a defendant "employs, consents to, authorizes or induces a minor to engage in a sexual performance," KRS 531.310(1). Thus, it appears to proscribe conduct by a defendant whose conscious objective is to bring about or facilitate by consent the sexual performance of a minor. The culpable mental state for violation of this statute is, therefore, intent. See KRS 501.020(1) and KRS 501.040.

 

Porter v. Com., 841 S.W.2d 166 (Ky., 1992)

Appellant maintains the language of KRS 532.045 does not prohibit "community service" as an alternative to imprisonment. The proposed community service is considered to be a form of conditional discharge (KRS 533.010 ) and is therefore comparable to probation.

        Thus, the primary issue in this case is whether the 1990 enactment of KRS 500.095 overrules the sentencing prohibition set for the KRS 532.045 enacted in 1984. We hold it does not.

        Under similar facts, the Court of Appeals in Williams v. Commonwealth, Ky.App., 829 S.W.2d 942, at 944 (1992), reasoned as follows:

Several principles of statutory construction come in for consideration in resolving this problem. Where a conflict exists between two statutes, the later statute enacted is generally controlling. Commonwealth v. Hunt, Ky.App., 619 S.W.2d 733 (1981). This principle standing alone would favor KRS 500.095, which was enacted in 1990. KRS 533.060(1) was enacted in 1976. We also note, however, that where there is conflict between statutes or sections thereof, it is the duty of the court to attempt to harmonize the interpretation so as to give effect to both sections or statutes, if possible. Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983). The court must not interpret a statute so as to bring about an absurd or unreasonable result. George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569 (1967). If we agreed with Williams and concluded that KRS 500.095 were controlling, we would make a nullity of KRS 533.060(1). . . . . .

A similar conflict arose between the provisions of KRS 532.110(1) and (2) and KRS 533.060 in Commonwealth v. Martin, Ky.App., 777 S.W.2d 236 (1989). In Martin, it was held that the provisions of KRS 533.060(3), requiring consecutive sentencing for an offense occurring while one was awaiting trial for another crime, were more "specific" and "tailored" to the facts, and that those provisions should override the more general provisions of KRS 532.110, which allowed some concurrent or consecutive sentences for conviction of multiple offenses.

        In the event two statutory provisions directly conflict, it has been long established the specific provision takes precedence over the general provision. Morgan County Board of Education v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935).

        Appellant was convicted of the very crimes enumerated in KRS 532.045. The legislative intent contributing to this prohibition against probation of sentences pursuant to sexual abuse of a minor mirrors both the legislature’s and society’s vehement disdain for such acts and the seriousness of the crime. On the other hand, KRS 500.095 is intended to allow the trial judge to create innovative and effective sentencing alternatives. We are called to decide which provision should prevail.

        Appellant cites Brown v. Hoblitzell, Ky., 307 S.W.2d 739, 744 (1956) on the issue of statutory construction. This case is readily distinguished from the case herein as it deals with interpretation of an ambiguous statute. We find neither of the statutes in question to be ambiguous. Appellant seeks to distinguish the statutory conflict from that presented Brown v. Commonwealth, Ky., 818 S.W.2d 600 (1991) on the grounds KRS 532.045 and 500.095 are recorded in different chapters of the penal code. This reasoning is unpersuasive.

        In light of differing policies we have chosen to apply strict rules of statutory construction. Therefore, the more specific statute shall govern and the trial judge correctly sentenced appellant under the provisions of KRS 532.045.

 
 

KRS 531.330 Presumption as to minority.

(1) For purposes of KRS 529.040 or 529.100 where the offense involves commercial sexual activity and for the purposes of KRS 530.070, 531.080, and 531.300 to 531.370, any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be.

(2) In any prosecution under KRS 529.040 or 529.100 where the offense involves commercial sexual activity by a minor and in any prosecution under KRS 530.070, 531.080, and 531.300 to 531.370, the defendant may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor.

(3) The presumption raised in subsection (1) of this section may be rebutted by any competent evidence.

Effective: June 26, 2007   History: Amended 2007 Ky. Acts ch. 19, sec. 14, effective June 26, 2007. — Created 1978 Ky. Acts ch. 219, sec. 5, effective June 17, 1978.

 
ANNOTATION FOR THIS STATUTE:
 

Hause v. Com., 83 S.W.3d 1 (Ky. App., 2001)   

On appeal, Hause asserts that: (1) the circuit court erred in failing to declare KRS 531.330 and KRS 531.340 unconstitutionally overbroad; (2) the court erred in failing to declare KRS 531.330 unconstitutionally vague; (3) the court erred in failing to suppress all evidence seized in Virginia; (4) the court erred in failing to suppress all evidence seized in Kentucky because it was obtained as fruit of the poisonous tree; (5) the court erred in failing to suppress all evidence seized in Kentucky because the information that served as the basis for the warrant was stale and no-good faith exception applies; and (6) the court erred in failing to suppress all evidence seized in Kentucky because the search warrant was overbroad.

Are KRS 531.330 and KRS 531.340 Unconstitutionally Overbroad?

Hause argues that KRS 531.340 is unconstitutionally overbroad because it allows for the prosecution of individuals possessing material portraying a sexual performance by a person over the age of eighteen. Hause also argues that KRS 531.330 is unconstitutionally overbroad because it regulates protected speech in that a person could be prosecuted for distribution of matter portraying a sexual performance of a virtual or computer-generated person that appears to be a minor.

A challenge to the constitutionality of an act of the General Assembly must "necessarily begin with the strong presumption in favor of constitutionality and [the Court] should so hold if possible." "A challenge to a statute on the basis that it is overbroad is essentially an argument that in an effort to control impermissible conduct, the statute also prohibits conduct which is constitutionally permissible."  "[A] statute may be perfectly clear and unambiguous but nevertheless unconstitutional if it prohibits constitutionally protected activities or may be enforced in an arbitrary manner."

The statute under attack, KRS 531.330, provides that: (1) For purposes of KRS 529.030, 530.070, 531.080 and 531.300 to 531.370, any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be. (2) In any prosecution under KRS 529.030, 530.070, 531.080 and 531.300 to 531.370 the defendant may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor.

(3) The presumption raised in subsection (1) of this section may be rebutted by any competent evidence.

Arguably, a person could portray a constitutionally permissible sexual performance involving an individual who is not a minor, but appears to be under the age of eighteen; however, KRS 531.330 does not prohibit that conduct. All that KRS 531.330 establishes is an evidentiary presumption and the burden shifting analysis that courts are to employ when an individual is prosecuted under KRS 529.030, 530.070, 531.080 or 531.300 to 531.370. Therefore, KRS 531.330 is not unconstitutionally overbroad.

KRS 531.340 provides that:….

Hause does not argue that he committed no crime; the argument preserved and presented on appeal is whether KRS 531.340 is unconstitutionally overbroad. While we recognize the principle that "[t]here can be no penalty if there is no crime[,]" *fn9 we also acknowledge that "the overbreadth doctrine allows challenges from one whose own conduct may be clearly unprotected[.]"

Hause argues that KRS 531.340 is unconstitutionally overbroad because virtual child pornography is protected speech and cannot be regulated by the government. Hause directs our attention to Free Speech Coalition v. Reno in which it was held that "Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children[,]"and, therefore, making criminal "the generation of images of fictitious children engaged in imaginary but explicit sexual conduct [is prohibited by the First Amendment to the United States Constitution]."

While this Court is not bound by the decision in Free Speech Coalition v. Reno, its persuasive value can be considered. However, upon review of Free Speech Coalition, we find that the terms of the federal statute at issue in that case, which were held to be unconstitutionally vague and overbroad, are not found in KRS 531.340. Therefore, Hause’s reliance on Free Speech Coalition is misplaced. Unlike the statute in Free Speech Coalition, KRS 531.340 requires proof that a person distributed "matter portraying a sexual performance by a minor[.]" According to KRS 531.330, minors are persons.

   [L]aws which create crime should be sufficiently explicit that men subject to [its] penalties may know what acts are forbidden, and before a man can be punished, his case must be plainly within the statute. Crime is not to arise upon doubtful construction of a statute where a person of ordinary intelligence, reading the statute, would not understand from it that the act was forbidden. Criminal statutes are not cunningly and darkly framed to catch the unwary, and they are not extended for this purpose beyond the fair and natural meaning of the words used.

"[T]he law never favors penalties and will not exact them unless the statute is clear and convincing." Therefore, "if [a] statute [is] so ambiguous as to leave reasonable minds in doubt, [a] penalty [will] not be exacted beyond the letter of the statute." It is an elementary principle that where the validity of a statute is assailed, and there are two possible interpretations, by one of which the statute would be constitutional, and by the other it would not, it is the duty of the court to adopt that construction which would uphold it.

In construing a statute, "words and phrases employed by the lawmaking body must be given their plain and ordinary meaning according to popular usage, unless they have acquired a technical sense, in which event, they will be given such accepted technical meaning." "In the construction of [] statutes[,] simple words must be given their ordinary meaning and cannot be given a strained interpretation for the purpose of effecting a result not contemplated by the members of the assembly which framed the provisions under consideration." *

We have held that basic reparations benefits were not available to the estate of a decedent killed in an automobile accident because "[t]he language of the law as it relates to the word `person’ refers only to living human beings and not to the estate of a deceased individual. The word `person’ as used in the definition of work loss in KRS 304.39-020(5)(b) also refers only to living human beings." We have found no Kentucky statutory or decisional definition stating that the term "person" includes computer-generated or virtual persons.

Thus, the argument that KRS 531.340 is overbroad because it could be applied to prosecute an individual who has distributed virtual or computer-generated child pornography is without merit. The reach of KRS 531.340 is simply not as broad as Hause says it is. The word "person" has not gained, as an accepted, ordinary or technical meaning, a definition that includes virtual or computer-generated persons.

"[T]he burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, [and] an accused has the right to rely upon failure of the prosecution to establish such proof." In a prosecution brought against an individual accused of violating KRS 531.340, it is incumbent upon the Commonwealth to prove beyond a reasonable doubt that the "person" depicted in the matter portraying a minor in a sexual performance is a real person. Therefore, we hold that KRS 531.340 is not unconstitutionally overbroad because the distribution of virtual or computer-generated child pornography is not within the reach of the criminal activity prohibited by KRS 531.340.

Is KRS 531.330 Unconstitutionally Vague?

Hause asserts that the language in the statute, "appears to be under the age of eighteen," does not give the average person a clear standard by which an individual can determine whether his or her conduct is unlawful and, therefore, KRS 531.330 is unconstitutionally vague.

"The void-for-vagueness doctrine emanates from the due process provisions of the United States and Kentucky Constitutions. To survive vagueness analysis a statute must provide `fair notice’ of prohibited conduct and contain `reason-ably [sic] clear’ guidelines to thwart `arbitrary and discriminatory’ enforcement." Unlike an overbreadth challenge, "a vagueness challenge focuses squarely on the conduct of the party before the court[.]"

Again, Hause considers only some language in the statute without giving consideration to the full meaning and intended application of the statute. As previously mentioned, KRS 531.330 establishes an evidentiary presumption and the burden shifting analysis that courts are to employ when an individual is prosecuted under KRS 529.030, 530.070, 531.080 or 531.300 to 531.370. Any person prosecuted under these statutes is permitted to rebut the presumption by competent evidence, and that person "may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor."

KRS 531.330 does not fail for vagueness. KRS 531.330, in conjunction with the statutes that it governs, provides fair notice of prohibited conduct and contains reasonably clear guidelines to thwart arbitrary and discriminatory enforcement. We are not troubled by the language of KRS 531.330 because the language does not establish an irrebuttable presumption.

   Further, Hause asserts that the language of KRS 531.330 allows and encourages arbitrary and discriminatory enforcement of the law as evidenced by the inherent, subjective perspective of law enforcement personnel. "Vague statutes are [] prohibited on the basis that they fail to provide explicit standards for those who enforce them, thus permitting discriminatory and arbitrary enforcement." But, "[t]he possibility of unreasonable enforcement of any statutory prohibition always exists no matter how precise the statute and judicial interpretations of it."  

We recognize that the specter of unreasonable enforcement is always present. However, we disagree with Hause’s bald assertion that the language of KRS 531.330 allows and encourages arbitrary and discriminatory enforcement of the law as evidenced by the inherent, subjective perspective of law enforcement personnel. We find no evidence in the record, nor are we aware of any objective evidence, that judges, jurors, prosecuting attorneys or law enforcement officers hold inherent subjective enforcement perspectives. The Kentucky Supreme Court has recognized that "[a] conviction must be obtained through the proper and lawful admission of evidence in order to maintain the integrity and fairness that is the bedrock of our jurisprudence." Hause’s allegation that an inherent, subjective perspective exists in law enforcement is an unsubstantiated assault on the bedrock principles of integrity and fairness that exist in law enforcement.

We must take a "man on the street" approach to analyzing the language of KRS 531.330.  The analysis of this case and the resultant answers are exactly that same as announced in Hardin v. Commonwealth:

Has the statute defined what can or cannot be done with such clarity that persons upon whom it is designed to operate can understand it? We think that it does. Does the statute provide fair warning[?] We think it does. So as to avoid arbitrary treatment, does it provide explicit standards for those persons who apply it — the judge, the jury, the prosecuting attorney, and the arresting officers? We think that it does. Does it prohibit the exercise of any constitutional freedom? We think it does not.  

In short, we find no merit to Hause’s argument that KRS 531.330 is unconstitutionally void for vagueness.

 
Love v. Com., 55 S.W.3d 816 (Ky., 2001)  

Unlike Covington, Appellant’s culpable mental state with respect to both his conduct and the status of his victims was at issue in this case. Pursuant to KRS 501.040, Appellant could not be convicted of assaulting a police officer absent knowledge on his part that his victim was a police officer. Illustrative of offenses requiring a culpable mental state with respect to the status of the victim are those defining sexual offenses against children in which the age status of the child is an enhancing element of the offense, e.g., KRS 510.040(2) and KRS 510.070(2). It is a defense to those offenses that the defendant did not know the age status of the victim. KRS 510.030; see also KRS 531.330(2).

 
 

KRS 531.335 Possession of matter portraying a sexual performance by a minor.

— Applicability.

(1) A person is guilty of possession or viewing of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he or she:

(a) Knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person; or

(b) Intentionally views any matter which visually depicts an actual sexual performance by a minor person.

(2) The provisions of subsection (1)(b) of this section:

(a) Shall only apply to the deliberate, purposeful, and voluntary viewing of matter depicting sexual conduct by a minor person and not to the accidental or inadvertent viewing of such matter;

(b) Shall not apply to persons viewing the matter in the course of a law enforcement investigation or criminal or civil litigation involving the matter; and

(c) Shall not apply to viewing the matter by a minor or the minor’s parents or guardians, or to school administrators investigating violations of subsection (1)(b) of this section.

(3) Possession or viewing of matter portraying a sexual performance by a minor is a Class D felony.

Effective: June 25, 2013  History: Amended 2013 Ky. Acts ch. 41, sec. 5, effective June 25, 2013. —  Amended 2006 Ky. Acts ch. 182, sec. 39, effective July 12, 2006. – Created 1992 Ky. Acts ch. 201, sec. 1, effective July 14, 1992. 

 
ANNOTATION FOR THIS STATUTE:
 

Miller v. Commonwealth, 391 S.W.3d 857 (Ky., 2013)   February 21, 2013

 3. This Court has applied this approach in an unpublished opinion, Steitz v. Commonwealth, 2008–SC–000108–MR, 2009 WL 3526655, (Ky. Oct. 29, 2009). While it is therefore not binding, it is nevertheless persuasive. In that case, the Court considered this precise issue for the first and only time. The indictment contained a specific date that was after a 2006 amendment to KRS 531.335 that increased possession of matter portraying a minor in a sexual performance from a misdemeanor to a felony. The jury instruction, however, included a date range from August 2005 (11 months prior to the amendment) to August 2006 (one month after the amendment). The Court recognized this as an ex post facto violation, and cited no authority as if to suggest that the answer was obvious. The Court had remanded the case for retrial on a separate juror issue, but noted that on retrial the jury instruction should be changed to include the specific date stated in the indictment rather than the date range. Thus, while the Court technically misclassified the constitutional violation as a direct ex post facto violation rather than a due process violation, it undeniably recognized that such a retrospective application of an amended version of a statute is a constitutional violation. 

Crabtree v. Commonwealth (Ky. App., 2012) 2011-CA-000452-MR  August 17, 2012

  Crabtree argues that the evidence did not support a charge that he knowingly possessed the illegal materials.

A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he or she knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person …. (KRS) 531.335(1). The Ninth Circuit has held that "a person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer." U.S. v. Kuchinski, 469 F.3d 853, 861 (9th Cir. 2006) It has also articulated a more stringent standard, holding that downloading is not a prerequisite to the crime of possession of child pornography: "In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it." U.S. v. Romm, 455 F.3d 990, 998 (9th Cir. 2006) (citing U.S. v. Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002)). A viewer is deemed to have control while the image is on the screen because at that moment, he has the ability to enlarge, save, print, or share the image. Id.

Crabtree urges us to consider that his merely viewing child pornography images before deleting them should not be deemed to constitute actual possession. After reviewing the facts of this case, we are not persuaded that this is a valid argument in light of the Ninth Circuit’s definition of possession in Romm, supra: that the act of seeking out child pornography and exercising control over it constitutes criminal possession – regardless of whether it is downloaded. Crabtree admitted to seeking out the material and to having it on his computer. Some of the videos remained, and numerous videos and images left their traces in the thumbcache. His attempt to clean up the computer by deleting the files does not purge him of the crime committed.Rather, it clearly illustrates an attempt at a cover-up after the fact. Furthermore, as Romm holds, Crabtree had the images in his control: he could have saved, printed, or shared them before he deleted them.

Crabtree next argues that it was error for the court not to provide the jury with an instruction regarding temporary innocent possession. The trial court denied the request at a hearing for a motion for a new trial on March 3, 2011.

 "Temporary innocent possession" is a defense recognized by our Supreme Court in the context of controlled substances. Commonwealth v. Adkins, 331 S.W.3d 260 (Ky. 2011). It is available when a person has taken "possession of a controlled substance without any unlawful intent." Id. at 263. Common examples of where it applies are: parents confiscating drugs from their children, teachers confiscating drugs from students, or homeowners finding medications left behind by guests. Id. at 264.

We agree with the trial court that the facts of this case do not warrant an innocent possession instruction. As we have already discussed, the elements for possession of electronic illegal images are satisfied when a person seeks them and downloads them. The evidence – including Crabtree’s own statement – indicated that Crabtree sought out child pornography and downloaded it to his computer. Crabtree did not present any contradicting evidence. We hold that the defense of innocent possession could not be invoked in this case, which involved obvious and lurid filenames of videos that were downloaded, a clear confession, and numerous images that remained after professionals had begun cleaning off the computer’s history. The facts of this case did not render it appropriate for analysis of this defense. Therefore, the trial court did not err in refusing to instruct the jury on innocent possession. 

Steitz v. Commonwealth, No. 2008-SC-000108-MR (Ky. 10/29/2009) (Ky., 2009)

  The General Assembly also amended KRS 531.335, increasing the penalty for possession of matter portraying a minor in a sexual performance from a misdemeanor to a felony (effective July 12, 2006). The indictment charged that Appellant committed the offense of possession of matter portraying a sexual performance by a minor on or about August 12, 2006 (five days before police executed the search warrant). Therefore, the indictment as written presents no ex post facto issues. However, the jury instructions gave the date range for the offense as "between the 25 day of August, 2005 and the 11th day of August, 2006."

        As written, the jury instructions could have led the jury to convict Appellant of a felony for conduct occurring prior to July 12, 2006. On retrial, the jury instructions should be rewritten to parallel the language of the indictment ("on or about the 12th day of August, 2006").

 

Peterson v. Com., 160 S.W.3d 730 (KY, 2005)

III. Virtual Child Pornography

Appellant contends the Commonwealth failed to prove that the images seized from his computer portrayed real, living children, as opposed to computer-generated or "virtual" child pornography. Appellant first raised this issue during pretrial motions, then later as part of a motion for a directed verdict, asking the trial court to declare unconstitutional the statutes relating to possession and distribution of matter portraying a sexual performance by a minor. KRS 531.335 and KRS 531.340.

The basis for Appellant’s claim stems from the United States Supreme Court’s decision Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which found certain provisions of the Child Pornography Prevention Act of 1996 unconstitutional. Specifically, the Supreme Court held that language contained in 18 U.S.C. § 2256(8)(B) (1997), criminalizing possession of pornographic material which "appears to be" a minor engaging in sexually explicit conduct, was impermissibly overbroad. Free Speech Coalition, 535 U.S. at 258, 122 S.Ct. 1389. The Supreme Court reasoned that the sweeping language of § 2256(8)(B) could possibly prohibit possession of images that were not the direct product of child exploitation. Id. at 250-55, 122 S.Ct. 1389.

 In his appeal before this Court, Appellant does not challenge the constitutionality of KRS 531.335 and KRS 531.340. Instead, Appellant raises a question alluded to in Free Speech Coalition: what type and quantum of evidence is required to prove that pornographic images found in an accused’s possession depict "real" children? The Court of Appeals made reference to this issue Hause v. Commonwealth, 83 S.W.3d 1 (Ky.App.2002), stating:

 "[T]he burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, [and] an accused has the right to rely upon failure of the prosecution to establish such proof." In a prosecution brought against an individual accused of violating KRS 531.340, it is incumbent upon the Commonwealth to prove beyond a reasonable doubt that the "person" depicted in the matter portraying a minor in a sexual performance is a real person.

 Id. at 8-9, quoting Whorton v. Commonwealth, 570 S.W.2d 627, 629 (Ky.1978)      

 Appellant notes that at trial, Detective French testified that he did not know if the seized images depicted "virtual" child pornography. No expert testified regarding whether the images portrayed actual children. However, in the wake of Free Speech Coalition, several courts have ruled that expert testimony is not required to establish that pornographic images depict real rather than "virtual" children. See United States v. Farrelly, 389 F.3d 649 (6th Cir.2004); United States v. Kimler, 335 F.3d 1132 (10th Cir.2003), cert. denied, 540 U.S. 1083, 124 S.Ct. 945, 157 L.Ed.2d 759 (2003); United States v. Richardson, 304 F.3d 1061 (11th Cir.2002), cert. denied, 537 U.S. 1138, 123 S.Ct. 930, 154 L.Ed.2d 832 (2003). "Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge." Farrelly, supra, at 655.

In the present matter, no evidence suggests that the time has arrived when experts are needed to distinguish real from virtual pornography. The jurors themselves viewed the images upon which they based Appellant’s conviction. Therefore, under the standard established Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991), we cannot say it was "clearly unreasonable" for the jury to find guilt, or that Appellant is entitled to a directed verdict of acquittal.

 

Westerfield v. Commonwealth, No. 2006-CA-000592-MR (Ky. App. 4/6/2007) (Ky. App., 2007)

The Blockburger rule is the "sole basis for determining whether multiple convictions arising out of a single course of conduct constitutes double jeopardy." Barth v. Commonwealth, 80 S.W.3d 390, 399 (Ky. 2001) (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999)). "The test… to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. (quoting Blockburger v. United States, 284 U.S. 299, 305 (1932)). As stated above KRS 531.310 requires: (1) to employ, consent, authorize or induce; (2) a minor; (3) to engage in a sexual performance. The elements of KRS 531.335 are to: (1)knowingly; (2) have in possession or control; (3) any matter visually depicting an actual sexual performance by a minor; and (4) with knowledge of the matter’s content, character, and that the sexual performance is by a minor. Westerfield concedes that KRS 531.310 requires additional proof of consent, authorization, or inducement for the minor to engage in a sexual performance. KRS 531.335 requires possession of the material depicting the sexual performance which KRS 531.310 does not. As a result, KRS 531.335 is not a lesser included offense of KRS 531.310. The offense of use of a minor in a sexual performance was completed when Westerfield induced A.M.R. to remove her shirt and photographed her. His decision to retain the photograph in his possession was a distinct step that constituted a separate criminal offense under 531.335. Therefore, the double jeopardy protection was not implicated.

 
 

KRS 531.340 Distribution of matter portraying a sexual performance by a minor.

(1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she:

(a) Sends or causes to be sent into this state for sale or distribution; or

(b) Brings or causes to be brought into this state for sale or distribution; or

(c)  In this state, he or she:

1. Exhibits for profit or gain; or

2. Distributes; or

3. Offers to distribute; or

4. Has in his or her possession with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying a sexual performance by a minor.

(2) Any person who has in his or her possession more than one (1) unit of material coming within the provision of KRS 531.300(2) shall be rebuttably presumed to have such material in his or her possession with the intent to distribute it.

(3) Distribution of matter portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 182, sec. 40, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 201, sec. 2, effective July 14, 1992. — Created 1978 Ky. Acts ch. 219, sec. 6, effective June 17, 1978.  

ANNOTATION FOR THIS STATUTE: 

Dumas v. Commonwealth (Ky., 2011) September 22, 2011    2010-SC-000378-MR.PDF

Dumas was convicted for violating KRS 531.335 (possession of matter portraying a sexual performance by a minor) and KRS 531.340 (distribution of matter portraying a sexual performance by a minor). In 2001, the Kentucky Court of Appeals considered a constitutional challenge to KRS 531.340 in House v. Commonwealth.In House, the court rejected the argument that KRS 531.340 prohibited constitutionally permissible conduct (distribution of virtual portrayals of fictitious minors). The court found the plain meaning of the word "minor" referred to a person.Consequently, the statute did not control distribution of computer-generated pornography.

Dumas calls into question the constitutional validity of a companion statute that uses the same language considered by the Court of Appeals in House. We agree with the House analysis and find it applicable in this case.

The statute does not attempt to control fictitious or virtual images of minors. In Free Speech Coalition v. Reno,the court stated, "Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children."While that may be true, our General Assembly has a great interest in protecting actual children from involvement in the exhibition of sexual performances. Regarding KRS 531.335, the word minor means a real person under the age of eighteen. The statute criminalizes the activity of individuals who possess sexually explicit images of real people under the age of eighteen. This statute is neither overbroad nor confusing in its intent.

III. CONCLUSION.
We affirm the judgment of the trial court.
 
 

Estrada v. Commonwealth, No. 2008-CA-000814-MR (Ky. App. 10/2/2009) (Ky. App., 2009)

… Thus, Estrada was indicted for possession with intent to distribute or intent to exhibit. Although the indictment did not specifically include "offer to distribute," such ground may fairly be included in the category of "intent to distribute." Further, KRS 531.340(2) states that any person possessing more than one unit of child pornography is presumed to possess it with the intent to distribute. Estrada fails to address this presumption. He clearly admitted to possessing more than one unit of such material (although he may not have realized the legal import of such admission at the time), and thus he is presumed to have possessed it with the intent to distribute. If the presumption lies that he intended to distribute it, it is certainly within the same scope to presume that he intended to "offer" to distribute it. Estrada further argues that no evidence was presented that he intended to exhibit the images for profit or gain. We disagree. Estrada stated in his interview with police that he intended to open an adult website. Specifically, he stated: "I wanted to get out of the junk yard — working at the junk yard. So, I wanted to . . . you know, start my . . . own adult website." This statement alone might indicate that Estrada intended to exhibit the images for profit or gain. Although he did not specifically admit that he wanted to put images involving children on the website, the jury certainly could have inferred that he intended to do so and the credibility of witnesses is a matter for jury determination. Dunn v. Commonwealth, 286 Ky. 695, 151 S.W.2d 763, 764-65 (1941).

        Further, Detective Durham found evidence that Estrada had printed out images portraying sexual performances by minors. Thus, a jury might reasonably infer that Estrada showed the images he printed out to others or that he intended to show those images to others. Accordingly, we find that the evidence in the case was sufficient to support a finding by the jury under any of the prongs of KRS 531.340(1)(c). As such, we affirm the trial court on this ground.

 

Rosario v. Commonwealth, No. 2008-CA-002053-MR (Ky. App. 10/2/2009) (Ky. App., 2009)

 Information was filed in the Madison Circuit Court on June 12, 2008, in which Rosario was charged with felony distribution of child pornography pursuant to Kentucky Revised Statutes (KRS) 531.340(2). As part of a plea offer from the Commonwealth, Rosario pled guilty to the charge in return for which the Commonwealth Attorney agreed to recommend a lower sentence.

        On August 19, 2008, the circuit court entered a final judgment against Rosario sentencing him to two and a half years, probated for five years with certain specific conditions. At no time was the obligation to register mentioned as one of these conditions. Nevertheless, after meeting with his probation officer, it was revealed to Rosario that, even though he was not considered a sex offender under the law of this Commonwealth at the time the offense was committed, he now must register under the sex offender registration statute due to a 2006 amendment to KRS 17.500 that requires those found guilty of KRS 531.340(2) to register. Thus, even though Rosario would not have been required to register in 2004 when he committed the offense, he was required to register in 2008 because of the amendment to the sex offender statute.

 

Hause v. Com., 83 S.W.3d 1 (Ky. App., 2001)

While this Court is not bound by the decision in Free Speech Coalition v. Reno, its persuasive value can be considered. However, upon review of Free Speech Coalition, we find that the termsof the federal statuteat issue in that case, which were held to be unconstitutionally vague and overbroad, are not found in KRS 531.340. Therefore, Hause’s reliance on Free Speech Coalition is misplaced. Unlike the statute in Free Speech Coalition, KRS 531.340 requires proof that a person distributed "matter portraying a sexual performance by a minor[.]" According to KRS 531.330, minors are persons.

 

Peterson v. Com., 160 S.W.3d 730 (KY, 2005)     

Appellant contends the Commonwealth failed to prove that the images seized from his computer portrayed real, living children, as opposed to computer-generated or "virtual" child pornography. Appellant first raised this issue during pretrial motions, then later as part of a motion for a directed verdict, asking the trial court to declare unconstitutional the statutes relating to possession and distribution of matter portraying a sexual performance by a minor. KRS 531.335 and KRS 531.340.

        The basis for Appellant’s claim stems from the United States Supreme Court’s decision Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which found certain provisions of the Child Pornography Prevention Act of 1996 unconstitutional. Specifically, the Supreme Court held that language contained in 18 U.S.C. § 2256(8)(B) (1997), criminalizing possession of pornographic material which "appears to be" a minor engaging in sexually explicit conduct, was impermissibly overbroad. Free Speech Coalition, 535 U.S. at 258, 122 S.Ct. 1389. The Supreme Court reasoned that the sweeping language of § 2256(8)(B) could possibly prohibit possession of images that were not the direct product of child exploitation. Id. at 250-55, 122 S.Ct. 1389.

        In his appeal before this Court, Appellant does not challenge the constitutionality of KRS 531.335 and KRS 531.340. Instead, Appellant raises a question alluded to in Free Speech Coalition: what type and quantum of evidence is required to prove that pornographic images found in an accused’s possession depict "real" children? The Court of Appeals made reference to this issue Hause v. Commonwealth, 83 S.W.3d 1 (Ky.App.2002), stating:

        "[T]he burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, [and] an accused has the right to rely upon failure of the prosecution to establish such proof." In a prosecution brought against an individual accused of violating KRS 531.340, it is incumbent upon the Commonwealth to prove beyond a reasonable doubt that the "person" depicted in the matter portraying a minor in a sexual performance is a real person.

        Id. at 8-9, quoting Whorton v. Commonwealth, 570 S.W.2d 627, 629 (Ky.1978) (emphasis added).

 
 
 

KRS 531.350 Promoting sale of material portraying a sexual performance by a minor.

(1) A person is guilty of promoting sale of material portraying a sexual performance by a minor when he knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter portraying a sexual performance by a minor, or he denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept such matter, or by reason of the return of such matter.

(2) Promoting sale of matter portraying a sexual performance by a minor is a Class A misdemeanor for the first offense, a Class D felony for the second offense, and a Class C felony for each subsequent offense.

Effective: June 17, 1978  History: Created 1978 Ky. Acts ch. 219, sec. 7, effective June 17, 1978.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.360 Advertising material portraying a sexual performance by a minor.

(1) A person is guilty of advertising material portraying a sexual performance by a minor when, having knowledge of its content and character thereof, he or she writes or creates advertising or solicits anyone to publish such advertising or otherwise promotes the sale or distribution of matter portraying a sexual performance by a minor.

(2) Advertising material portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 182, sec. 41, effective July 12, 2006. — Created 1978 Ky. Acts ch. 219, sec. 9, effective June 17, 1978.

 

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 531.370 Using minors to distribute material portraying a sexual performance by a minor.

(1) A person is guilty of using minors to distribute material portraying a sexual performance by a minor when knowing a person to be a minor, or having possession of such facts that he should reasonably know such person is a minor, and knowing of the content and character of the material, he knowingly:

(a) Hires; or
(b) Employs; or

(c) Uses, a minor to do or assist in doing any of the acts prohibited by KRS 531.340.

(2) Using minors to distribute material portraying a sexual performance by a minor is a Class D felony unless the defendant has previously been convicted of violation of this section or KRS 531.030, in which case it shall be a Class C felony.

Effective: June 17, 1978  History: Created 1978 Ky. Acts ch. 219, sec. 10, effective June 17, 1978.

 
ANNOTATION FOR THIS STATUTE:
 

Danner v. Com., 963 S.W.2d 632 (Ky., 1998)               

1 Although "child" is not defined for the purposes of KRS Chapter 421, "child" has been defined in other KRS sections as a person who has not yet reached her eighteenth birthday. KRS 15.900,

 

Porter v. Com., 841 S.W.2d 166 (Ky., 1992)

Appellant maintains the language of KRS 532.045 does not prohibit "community service" as an alternative to imprisonment. The proposed community service is considered to be a form of conditional discharge (KRS 533.010 ) and is therefore comparable to probation.

        Thus, the primary issue in this case is whether the 1990 enactment of KRS 500.095 overrules the sentencing prohibition set for the KRS 532.045 enacted in 1984. We hold it does not.

        Under similar facts, the Court of Appeals in Williams v. Commonwealth, Ky.App., 829 S.W.2d 942, at 944 (1992), reasoned as follows:

Several principles of statutory construction come in for consideration in resolving this problem. Where a conflict exists between two statutes, the later statute enacted is generally controlling. Commonwealth v. Hunt, Ky.App., 619 S.W.2d 733 (1981). This principle standing alone would favor KRS 500.095, which was enacted in 1990. KRS 533.060(1) was enacted in 1976. We also note, however, that where there is conflict between statutes or sections thereof, it is the duty of the court to attempt to harmonize the interpretation so as to give effect to both sections or statutes, if possible. Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983). The court must not interpret a statute so as to bring about an absurd or unreasonable result. George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569 (1967). If we agreed with Williams and concluded that KRS 500.095 were controlling, we would make a nullity of KRS 533.060(1). . . . . .

A similar conflict arose between the provisions of KRS 532.110(1) and (2) and KRS 533.060 in Commonwealth v. Martin, Ky.App., 777 S.W.2d 236 (1989). In Martin, it was held that the provisions of KRS 533.060(3), requiring consecutive sentencing for an offense occurring while one was awaiting trial for another crime, were more "specific" and "tailored" to the facts, and that those provisions should override the more general provisions of KRS 532.110, which allowed some concurrent or consecutive sentences for conviction of multiple offenses.

        In the event two statutory provisions directly conflict, it has been long established the specific provision takes precedence over the general provision. Morgan County Board of Education v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935).

        Appellant was convicted of the very crimes enumerated in KRS 532.045. The legislative intent contributing to this prohibition against probation of sentences pursuant to sexual abuse of a minor mirrors both the legislature’s and society’s vehement disdain for such acts and the seriousness of the crime. On the other hand, KRS 500.095 is intended to allow the trial judge to create innovative and effective sentencing alternatives. We are called to decide which provision should prevail.

        Appellant cites Brown v. Hoblitzell, Ky., 307 S.W.2d 739, 744 (1956) on the issue of statutory construction. This case is readily distinguished from the case herein as it deals with interpretation of an ambiguous statute. We find neither of the statutes in question to be ambiguous. Appellant seeks to distinguish the statutory conflict from that presented Brown v. Commonwealth, Ky., 818 S.W.2d 600 (1991) on the grounds KRS 532.045 and 500.095 are recorded in different chapters of the penal code. This reasoning is unpersuasive.

        In light of differing policies we have chosen to apply strict rules of statutory construction. Therefore, the more specific statute shall govern and the trial judge correctly sentenced appellant under the provisions of KRS 532.045.

 
 
 

 

 
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