Commonweath of Kentucky v. Brent Michael Watson ( 2020 )

RENDERED: OCTOBER 23, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1272-MR
AND
NO. 2018-CA-1340-MR
COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 14-CR-000797
BRENT MICHAEL WATSON APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: Brent Michael Watson was convicted of one count of first-
degree sexual abuse after a jury trial before the Jefferson Circuit Court. Watson
entered into a plea agreement for a five-year sentence, which preserved his right to
appeal. In his judgment of conviction and sentence, the trial court found that credit
for his pretrial incarceration entitled Watson to immediate release. The
Commonwealth appealed on the basis that the trial court had no authority to
determine that Watson’s custody credit was sufficient to discharge his five-year
sentence. Watson cross-appealed as a matter of right claiming that the trial court
erred by denying his motion to strike a juror for cause, denying his motion for a
directed verdict, and refusing to instruct the jury on harassment with physical
contact as a lesser-included offense.
Having reviewed the record in conjunction with all applicable legal
authority, we find no error with respect to the issues raised in Watson’s cross-
appeal, and we affirm with respect to those issues. Under these circumstances,
however, we must conclude that the trial court exceeded its authority in ordering
Watson’s immediate release and, therefore, reverse with respect to that issue.
I. BACKGROUND
Watson was arrested on March 20, 2014, after the victim’s mother
reported that Watson had touched the victim’s vagina and Watson confessed to
police. On March 27, 2014, Watson was indicted for having committed the
offense of sexual abuse in the first-degree by subjecting the victim, a person less
than twelve years of age, to sexual contact, a Class C felony. Kentucky Revised
Statutes (KRS) 510.110. At the time of the incident the victim (“Victim”),
Watson’s cousin, was nine years old; Watson was nineteen.
-2-
Watson remained in custody, first in jail and then on home
incarceration pursuant to the Louisville Metro Department of Corrections’ Home
Incarceration Program (HIP). See KRS 431.517(1). He was eligible to earn credit
towards his maximum expiration date if convicted for the time he spent on HIP
pursuant to KRS 532.120 and KRS 532.245(1). Watson maintained employment
while on home incarceration and otherwise complied with all of the program’s
requirements.
On June 25, 2015, Watson accepted an offer to plead guilty as charged
with a recommended sentence of five years of incarceration and submitted a
motion to enter a guilty plea. This was the minimum incarceration available for a
defendant who had committed a Class C felony. KRS 532.060(2)(c). By pleading
guilty to a felony sexual offense under Chapter 510, Watson would be classified as
a violent offender pursuant to KRS 439.3401(1)(f) and be ineligible for probation
pursuant to KRS 532.047.
Initially, the trial court entered a judgment on Watson’s guilty plea
and set the matter for sentencing, ordering a presentence investigation (PSI). A
comprehensive sexual offender presentence evaluation revealed that Watson
scored similarly to individuals in the low risk range for reoffending and was
amenable to treatment. The sentencing was repeatedly continued, but ultimately
the trial court declined to accept the guilty plea based on its opinion that five years
-3-
was too much time for the offense. The Commonwealth was unwilling to amend
the charge and no other plea deal was offered. The Commonwealth sought
appointment of a special judge, claiming the trial judge was biased, but the
Kentucky Supreme Court denied the request. Ultimately the matter proceeded to a
jury trial on April 23, 2018.
During jury selection, Watson asked for Juror 2128828 to be stricken
for cause based on bias. After the trial court denied this request, Watson used a
peremptory challenge to remove this juror and ultimately used all of his
peremptory challenges.
After the Commonwealth’s case in chief and at the conclusion of the
case, Watson requested a directed verdict on the basis that the Commonwealth
failed to establish he touched Victim for the purpose of sexual gratification. The
trial court denied Watson’s motion.
Watson proposed jury instructions on sexual abuse in the first degree
and harassment with physical contact as a lesser-included offense. However, the
trial court instructed the jury on sexual abuse in the first degree and criminal
attempt to commit sexual abuse in the first degree.
After deliberating, on April 25, 2018, the jury found Watson guilty of
sexual abuse in the first degree. The following day, before the sentencing phase of
the trial commenced, Watson entered into a plea agreement with the
-4-
Commonwealth for five years of incarceration, reserving his right to appeal any
trial errors.
On May 10, 2018, Watson filed a motion for judgment
notwithstanding the verdict or, in the alternative, a motion for a new trial, arguing
that the trial court erroneously failed to strike Juror 2128828 and failed to provide
a jury instruction on harassment with physical contact. The trial court denied
Watson’s motion. On July 26, 2018, Watson’s judgment of conviction and
sentence was entered. Based on the credits Watson accumulated during home
incarceration, the trial court ordered him immediately discharged from custody.
II. ANALYSIS
We first address Watson’s arguments of trial error in his cross-appeal,
beginning with the trial court’s refusal to strike Juror 2128828 for cause. During
jury selection, members of the panel were asked whether their reactions to the
allegation of sexual abuse would make it difficult to be impartial. Juror 2128828
did not participate in this exchange but did respond when the panel was asked
whether any of the jurors, their immediate families, or their close friends had ever
been charged with a criminal offense, convicted, or arrested. Juror 2128828 stated
that her husband raped her and committed domestic violence against her. She
stated the system treated her fairly and the system also treated her husband fairly,
although her husband could have gotten more time. She then laughed. When
-5-
asked whether this experience would affect her ability to be fair, Juror 2128828
replied, “oh no, not at all.” No further questions were asked of this juror.
Watson moved to strike Juror 2128828 for cause on the basis that a
reasonable ground existed to believe that she could not be fair or impartial due to
her involvement in the rape and domestic violence allegations against her husband.
The trial court denied the motion, finding Juror 2128828’s response did not
indicate that she could not be impartial. Ultimately, Watson used one of his nine
peremptory strikes to remove Juror 2128828 from the panel.
Watson used all of his peremptory strikes and argues that if the trial
court had granted his motion to strike Juror 2128828, he would have stricken Juror
2128694, who ultimately served on the jury that convicted Watson. Watson
properly preserved this issue by using a preemptory challenge to strike this juror
and using all of his preemptory challenges. Morrison v. Commonwealth, 528
S.W.3d 896, 899 (Ky. 2017).
A defendant’s right to an impartial jury is protected by the Sixth and
Fourteenth Amendments to the United States Constitution and Section 11 of the
Kentucky Constitution. Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky.
2013). “When there is reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that juror shall be excused as
not qualified.” Kentucky Rules of Criminal Procedure (RCr) 9.36(1). “[T]rial
-6-
courts [are] to strike jurors any time reasonable questions about their impartiality
persist and cannot be resolved conclusively.” Wallace v. Commonwealth, 478
S.W.3d 291, 298 (Ky. 2015).
“We have long recognized that a determination as to whether to
exclude a juror for cause lies within the sound discretion of the trial court, and
unless the action of the trial court is an abuse of discretion or is clearly erroneous,
an appellate court will not reverse the trial court’s determination.” Ordway, 391
S.W.3d at 781 (quoting Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008)
(internal quotation marks omitted)). “[T]he trial court possesses considerable
discretion [in determining whether to strike a juror for cause] and its view of the
juror’s demeanor and apparent candor must be duly considered.” Moss v.
Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997). “The court must weigh the
probability of bias or prejudice based on the entirety of the juror’s responses and
demeanor.” Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007).
“[T]he mere fact that a prospective juror has been the victim of a
crime similar to the crime being tried does not by itself imply a disqualifying bias.
Additional evidence of bias is required.” Brown v. Commonwealth, 313 S.W.3d
577, 598 (Ky. 2010).
Obvious factors bearing on the likelihood of bias are the
similarity between the crimes, the length of time since
the prospective juror’s experience, and the degree of
trauma the prospective juror suffered. It is the totality of
-7-
all the circumstances, however, and the prospective
juror’s responses that must inform the trial court’s ruling.
Id. “[A] categorical disqualification [due to a juror’s life experience] reflects a
paternalistic approach to the issue that, while understandable, is simply wrong.”
Little v. Commonwealth, 422 S.W.3d 238, 244 (Ky. 2013).
While judges should never abdicate their responsibility to
strike a juror when circumstances clearly require it,
judges must make an individualized decision with respect
to the qualifications of a specific juror, giving due
deference to a credible juror’s own assessment of how
her life’s experiences, however tragic they may be,
would influence her ability to serve fairly and
impartially.
Id.
While Watson believes Juror 2128828’s failure to speak up earlier and
her laugh indicated that she was trying to hide her difficulties in dealing with this
kind of a case, the trial court believed her actions did not indicate bias. Having
reviewed the video recording, there was nothing about Juror 2128828’s tone to
indicate she was upset when discussing the issue, and she unequivocally indicated
without any hesitation that she could be impartial. Additionally, Watson did not
ask additional questions to explore whether this juror was biased.
Ultimately, the trial court acted within its discretion in determining
that Juror 2128828’s assurances that she could be fair and impartial were not
negated by her behavior. Such a determination was particularly within the trial
-8-
court’s sound discretion and not clearly erroneous. Therefore, the trial court did
not err in refusing to allow this juror to be stricken for cause.
Next, Watson argues his motion for a directed verdict should have
been granted because the Commonwealth failed to prove he touched Victim for
purposes of sexual gratification.
In Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), the
Kentucky Supreme Court restated the rule for a directed verdict as follows:
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
“To defeat a directed verdict motion, the Commonwealth must only produce ‘more
than a mere scintilla of evidence.’” Lackey v. Commonwealth, 468 S.W.3d 348,
352 (Ky. 2015) (quoting Benham, 816 S.W.2d at 187). “On appellate review, the
test of a directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.” Benham, 816 S.W.2d at 187.
Pursuant to KRS 510.110(1)(b)2.: “A person is guilty of sexual abuse
in the first degree when: . . . [h]e or she subjects another person to sexual contact
-9-
who is incapable of consent because he or she: . . . [i]s less than twelve (12) years
old[.]” KRS 510.010(7) provides: “‘Sexual contact’ means any touching of the
sexual or other intimate parts of a person done for the purpose of gratifying the
sexual desire of either party[.]”
The “[i]ntent [to gratify sexual desire of either party] can be inferred
from the actions of an accused and the surrounding circumstances. The jury has
wide latitude in inferring intent from the evidence.” Anastasi v. Commonwealth,
754 S.W.2d 860, 862 (Ky. 1988). An inference that the touching was performed
deliberately for the purpose of sexual gratification can be inferred by the
circumstances.
In Tungate v. Commonwealth, 901 S.W.2d 41, 42 (Ky. 1995), “the
alleged sexual abuse involved the little girls sitting in the appellant’s lap while he
was sitting in a large chair, and consisted of [him] putting his hand under the
clothing of the children and touching their vaginal areas.” The Court concluded:
Based on the evidence taken as a whole, accepted as true
and viewed in a light most favorable to the
Commonwealth, it was certainly not clearly unreasonable
for the jury to find beyond a reasonable doubt that the
Commonwealth met its burden of proving each element
of each offense, including that the touching was done for
the purpose of sexual gratification.
Id.; see also Calloway v. Commonwealth, 187 S.W.3d 861, 864 (Ky. App. 2006)
(upholding the denial of a directed verdict where victim testified that perpetrator
-10-
asked her to sit on his lap, “placed his hands underneath her shorts and underwear
and touched her vaginal area[,]” victim denied perpetrator was trying to tickle her,
and victim reported perpetrator asked her if she liked it and directed her not to tell);
Boone v. Commonwealth, 155 S.W.3d 727, 730 (Ky. App. 2004) (holding
sufficient evidence to prove contact was for sexual gratification where victim
testified perpetrator fondled his genitals and officer testified that perpetrator
admitted the contact was intentional).
Victim, her younger sister, her mother, a police officer, and Watson
testified. Victim recounted falling asleep on a couch while being hugged by
Watson and waking up next to Watson, with his hand inside her pants and
underwear, touching her vagina. She did not know how long he was touching her
before she woke up, but it was only a few seconds after she woke up when he
stopped. She did not know if he was sexually aroused. Victim’s sister testified
that she saw Watson with his hand down her sister’s pants while Victim and
Watson were on the couch. Victim’s mother testified that she became suspicious
after reading Victim’s journal. She confronted Watson and he ultimately
confessed to her that he had touched Victim inappropriately and repeatedly
apologized.
The police officer testified that Watson confessed to the crime and his
confession was played to the jury. On the recording, Watson admitted he reached
-11-
into Victim’s pants and underwear while she was asleep and touched her vagina
with his finger, rubbing it. He claimed he only touched Victim for “maybe two to
three seconds” or up to five seconds. When Watson was asked whether he was
“aroused, turned on,” at first he did not answer the question. He was then asked:
“So were you?” He answered: “No. I mean at the moment I guess I was but . . .”
and then denied having an erection. Watson told the officer he apologized to
Victim. Watson disclosed he had been sexually molested as a child by his older
cousins.
Watson testified at trial that he touched Victim for only seconds and
did not know why he touched her. He denied having an erection, trying to kiss her,
or touching other parts of Victim’s body. However, he did admit that at the time
he guessed he was aroused even though he did not have an erection. There was no
evidence that Watson’s actions, though brief, were anything other than intentional,
and he did not provide any alternative motivation for his actions. Therefore, the
jury could properly infer that Watson’s touching of Victim’s vagina was done for
the purpose of sexual gratification, however brief the gratification may have been
at the time. Therefore, we conclude that the trial court properly denied Watson’s
motion for a directed verdict.
Watson next argues that the trial court erred by failing to instruct the
jury on harassment as a lesser-included offense to sexual abuse. The proposed
-12-
harassment instruction that Watson submitted provided that Watson subjected
Victim to physical contact and “[t]hat in doing so, he intended to harass, annoy or
alarm [Victim].”
“We review a trial court’s ruling on jury instructions for abuse of
discretion.” Sasser v. Commonwealth, 485 S.W.3d 290, 296-97 (Ky. 2016).
“It is well settled that the trial court should instruct the jury on every theory of the
case supported by the evidence, including lesser offenses.” Swain v.
Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994). Pursuant to KRS 505.020(2)(a)
a lesser-included offense is “established by proof of the same or less than all the
facts required to establish the commission of the offense charged[.]” Therefore, “if
the lesser offense requires proof of a fact not required to prove the greater offense,
then the lesser offense is not included in the greater offense, but is simply a
separate, uncharged offense.” Colwell v. Commonwealth, 37 S.W.3d 721, 726
(Ky. 2000).
As discussed above: “A person is guilty of sexual abuse in the first
degree when: . . . [h]e or she subjects another person to sexual contact [touching of
the sexual or other intimate parts for the purpose of sexual gratification] who is
incapable of consent[.]” KRS 510.110(1)(b)2. In contrast, “[a] person is guilty of
harassment when, with intent to intimidate, harass, annoy, or alarm another person,
-13-
he or she: . . . [s]trikes, shoves, kicks, or otherwise subjects him to physical
contact[.]” KRS 525.070(1)(a).
Harassment with physical contact is not a lesser-included offense of
sexual abuse in the first degree because each offense requires proof of a fact that
the other offense does not—a different kind of intent. Harassment with physical
contact requires an intent to intimidate, harass, annoy, or alarm while sexual abuse
in the first degree requires an intent to gratify the sexual desire of either party.
These intents are inconsistent with one another.
Additionally, as explained in Boone v. Commonwealth, No. 2011-CA-
001359-MR, 2013 WL 5663089, at *7-8 (Ky. App. Oct. 18, 2013) (unpublished)
and Bailey v. Commonwealth, No. 2008-CA-001108-MR, 2009 WL 2633507, at
*2-3 (Ky. App. Aug. 28, 2009) (unpublished),1 the jury need not be instructed on
harassment with physical contact as a lesser-included offense of sexual abuse
where this defense lacks an evidentiary foundation. Watson testified he did not
know why he touched Victim’s vagina, and there was no other evidence to
conclude that his purpose in doing so was not for sexual gratification but to annoy
her.
1
Pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), we cite to these unpublished
decisions because there is no published opinion that adequately addresses this issue.
-14-
We now turn to the Commonwealth’s argument that the trial court
erred in ordering Watson immediately released.
On July 18, 2018, Watson’s sentencing hearing was held. The trial
court stated that Watson was being sentenced to five years of incarceration
pursuant to the plea agreement and the mandatory minimum sentence for his crime.
Because of delays in Watson being tried, he earned a substantial amount of credit
while on HIP pursuant to KRS 532.245(1), which was required to be credited as
time served in prison by the Department of Corrections. KRS 532.120(3), (7).
The trial court confirmed that the PSI report stated Watson served
1,539 days as of June 5, 2018. The trial court added credit accrued after the PSI
report and found Watson served a total of 1,582 days. The trial court
acknowledged that Watson had not served five years prior to sentencing, which
would be 1,825 days. However, after performing some calculations, the trial court
opined that 1,582 days was essentially five years of credit and more than 85% of
Watson’s sentence, entitling Watson to immediate release.
During the hearing, after listening to arguments from counsel, the trial
court announced it would exercise its discretion under KRS 532.120(8) to allow
Watson to be immediately discharged, reasoning because Watson had served more
than 85% of his sentence, it could deem Watson’s entire sentence served.
-15-
In the judgment, the trial court stated in pertinent part: “In keeping
with KRS 532.120(8), and insofar as the presentence report indicates that [Watson]
has accumulated sufficient sentencing credits to allow of an immediate discharge
from confinement upon pronouncement of sentence, the amount of credit (i.e.
1,582 days) is CONFIRMED and AWARDED[.]” Watson was also sentenced to a
five-year period of conditional discharge following release, required to enroll in
and complete a sex offender treatment program (SOTP), and register as a sex
offender as required of all sexual offenders.
The Commonwealth argues the trial court had no authority to
determine that Watson’s credit of 1,582 days was sufficient to discharge his five-
year sentence, resulting in his immediate release subject to the five-year period of
conditional discharge mandated for sexual offenders. The Commonwealth argues
the trial court abused its discretion because Watson needed to serve the balance of
his sentence day-for-day until he either completed his sentence or he completed his
SOTP, which would then make him eligible to apply other credit to reduce the
remaining balance of his sentence.
The right to jail-time credit is derived purely from statute. As such, it
is governed by and interpreted according to legislative intent. “As with any case
involving statutory interpretation, our duty is to ascertain and give effect to the
intent of the General Assembly.” Stogner v. Commonwealth, 35 S.W.3d 831, 834
-16-
(Ky. App. 2000) (quoting Beckham v. Board of Education of Jefferson Co., 873
S.W.2d 575, 577 (Ky. 1994) (citations omitted)).
Prior to June 8, 2011, KRS 532.120(3) provided that the
presentencing time spent in custody “shall be credited by the court imposing
sentence.” Under this version of the statute, trial courts had the duty to ensure the
credit was properly applied, requiring courts to address presentencing jail-time
credit in their judgments. The current language of KRS 532.120(3), which became
effective June 8, 2011, removed the trial court’s authority to determine jail-time
credit except in very rare circumstances. The current version of the statute
provides that in felony cases the trial court only has the authority to determine jail-
time credit where: “a presentence report indicates that a defendant has
accumulated sufficient sentencing credits under this section to allow for an
immediate discharge from confinement upon pronouncement of sentence, the court
may confirm the amount of the credit and award the credit at pronouncement.”
KRS 532.120(8).
As noted, the trial court acknowledged that Watson had not served
five years prior to sentencing, which would be 1,825 days. However, the trial
court determined that the amount of time Watson had served as of the date of
sentencing, 1,582 days, was essentially enough time to allow for immediate
discharge based on KRS 439.3401(4) (“In no event shall a violent offender be
-17-
given credit on his or her sentence if the credit reduces the term of imprisonment to
less than eighty-five percent (85%) of the sentence.”). The trial court reasoned that
85% of Watson’s five-year sentence would amount to 1,551 days, which exceeded
the number of days Watson had spent in pretrial detention. According to the trial
court, this made Watson eligible for immediate release at the time of sentencing.
Even though Watson had spent more than 85% of his sentence in
pretrial detention, we cannot agree with the trial court’s conclusion that Watson
was entitled to immediate discharge. Serving 85% of his sentence would have
made Watson eligible for parole based on the amount of time served. Eligibility
for parole is not the same thing as entitlement to immediate discharge. Because
Watson’s conviction made him a sexual offender, parole eligibility depends on
more than time served. KRS 197.045(4) provides:
Until successful completion of the sex offender treatment
program, an eligible sexual offender may earn sentencing
credit. However, the sentencing credit shall not be
credited to the eligible sexual offender’s sentence. Upon
the successful completion of the sex offender treatment
program, as determined by the program director, the
offender shall be eligible for all sentencing credit earned
but not otherwise forfeited under administrative
regulations promulgated by the Department of
Corrections. After successful completion of the sex
offender treatment program, an eligible sexual offender
may continue to earn sentencing credit in the manner
provided by administrative regulations promulgated by
the Department of Corrections. Any eligible sexual
offender, as defined in KRS 197.410, who has not
successfully completed the sex offender treatment
-18-
program as determined by the program director shall not
be entitled to the benefit of any credit on his or her
sentence. A sexual offender who does not complete
the sex offender treatment program for any reason
shall serve his or her entire sentence without benefit
of sentencing credit, parole, or other form of early
release. The provisions of this section shall not apply to
any sexual offender convicted before July 15, 1998, or to
any sexual offender with an intellectual disability.
KRS 197.045(4) (emphasis added).
Based on the express language of KRS 197.045(4), Watson, who had
not completed the sex offender treatment program, was only eligible for immediate
release if he had been in custody a sufficient amount of time to equal service of his
“entire sentence.” Watson would have only been entitled to immediate release if
he had served enough time in pretrial detention to satisfy his entire five-year
sentence, which he had not done. Therefore, we must conclude that the trial court
exceeded its authority when it determined that Watson was entitled to immediate
release based on its own calculation of pretrial jail time credit and parole
eligibility.
Of course, this does not mean that Watson would have not ever been
entitled to jail-time credit. It means the Department of Corrections, not the trial
court, has the authority to calculate the amount of credit and to determine the
appropriate release date. The trial court abused its discretion by ordering Watson’s
-19-
immediate release. Under these circumstances, the trial court had no authority to
order immediate release. Accordingly, we must reverse on this ground.
ACREE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS AND DOES NOT FILE A
SEPARATE OPINION.
BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
Andy Beshear Christopher Barrett Thurman
Attorney General of Kentucky Assistant Appellate Defender
Frankfort, Kentucky Louisville Metro Public Defender
Louisville, Kentucky
Dorislee J. Gilbert
Special Assistant Attorney General
Louisville, Kentucky
-20-