CAPERTON, JUDGE.
Tanya Baynum appeals from her conviction in the Kenton Circuit Court on one count of third-degree rape, one count of custodial interference, and two counts of first-degree unlawful transaction with a minor, for which she was sentenced to ten years of imprisonment. After a thorough review of the parties' arguments, the record, and the applicable law, we agree with Baynum that the jury instructions given by the trial court were reversible error. Therefore, we reverse and remand to the trial court for a new trial on the charges of unlawful transaction with a minor consistent with this opinion. We also reverse and remand the portion of Baynum's sentence that exceeded the trial court's authority in light of Smith, infra. We affirm Baynum's remaining convictions.
The facts of this case were testified to at a multiple-day jury trial. The Commonwealth presented evidence that Baynum had a sexual relationship with T.R. when Baynum was 28 and T.R. was 15. T.R. moved into Baynum's home in January of 2008.
T.R. testified that he smoked marijuana and methamphetamine with Baynum. T.R. testified that the first time he smoked methamphetamine with Baynum was the night the two met and that he thought the methamphetamine was hers. T.R. testified that on a second occasion he smoked methamphetamine with Baynum after two individuals came to her trailer and provided her with the drug.
During this time, T.R.'s mother (Millburn) tried to locate him. Eventually, C.C. informed Millburn that T.R. was staying in a trailer with somebody named Tanya, and C.C. told Millburn the name of the street on which she would find the trailer. Millburn drove to the trailer and knocked on the door.
On February 22, 2008, Millburn received a tip from C.C.'s younger brother, S.C., that he was getting ready to meet T.R. at a White Castle. Officer Ki Ransdall went to the White Castle with a warrant to take T.R. into custody. Officer Ransdall met S.C. prior to T.R.'s arrival and parked his cruiser behind White Castle. When S.C. sighted T.R. at a gas station across the street, Officer Ransdall then arrested T.R. Officer Ransdall had to remove T.R. from the backseat of a car in which Baynum was a passenger. Thereafter, T.R. stayed at various locations, including Millburn's residence, his father's residence, a mental health facility, and a rehabilitation facility. During this time, T.R. asked Millburn for permission to marry Baynum when he turned 16.
Millburn arranged for a meeting with Baynum and T.R. Millburn recorded the meeting, and the Commonwealth played the tape at trial. On the recording Baynum admitted that T.R. had stayed with her for a month, that the two had a sexual relationship, and that she possessed methamphetamine that she intended to sell to raise cash to buy birthday presents for her child. Millburn took the tape to the police. Thereafter, Baynum was interviewed by the police and admitted that she knew that T.R. was 15. Baynum claimed that T.R. had told her to lie to Millburn so that he could go live with his father. After hearing this evidence, the jury convicted Baynum of one count of third-degree rape, one count of custodial interference, and two counts of first-degree unlawful transaction with a minor. It is from this conviction that Baynum now appeals.
On appeal, Baynum presents three arguments. First, the trial court erred to Baynum's substantial prejudice when defense counsel was barred from recalling a Commonwealth witness and presenting a defense. Second, that the jury instructions on each count of first-degree unlawful transaction with a minor were identical and thus did not protect Baynum against nonunanimous verdicts or double jeopardy. Third, the trial court sentenced Baynum to numerous penalties not authorized by any Kentucky statute.
In response, the Commonwealth presents three arguments that we do not find dispositive. Accordingly, we shall briefly address each in turn. First, the Commonwealth argues that the trial court properly refused to permit the defense to recall T.R., whom the defense had already cross-examined. In support thereof, the Commonwealth states that the issue regarding whether T.R. should be recalled as a witness is moot because: (a) defense counsel announced that she was not going to recall T.R., and (b) the avowal testimony of Remy (an individual whose identity is unknown to this Court) did not provide any evidence that should have been admitted at trial. Upon our review of this argument, we find it unpersuasive and decline to address it further.
Second, the Commonwealth argues that Kentucky law places defense counsel in an ethical dilemma when the jury instructions do not delineate between crimes: either counsel objects and calls the court's attention to the incorrect jury instructions, or, counsel is silent, knowing that his client will benefit from an automatic reversible error. In support thereof, the Commonwealth asserts that Kentucky Rules of Criminal Procedure (RCr) 10.26 is not a substitute for the contemporaneous objection rule contained in RCr 9.54, in reliance on Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002)("The palpable error rule set forth in RCr 10.26 is not a substitute for the requirement that a litigant must contemporaneously object to preserve an error for review. RCr 9.22. The general rule is that a party must make a proper objection to the trial court and request a ruling on that objection, or the issue is waived."). The Commonwealth urges this Court to recommend to the Kentucky Supreme Court that it reconsider the state of our current caselaw. Additionally, the Commonwealth argues that any error was harmless because the evidence at trial clearly showed that on two different occasions Baynum shared crystal methamphetamine with the fifteen-year-old victim. We decline to address this argument because this assumes that defense counsel understood the instruction to be in error and made a conscious decision not to object. The record does not disclose that defense counsel made this decision.
Third, the Commonwealth argues that the judgment did not conform to the recent case of Smith v. Commonwealth, 2010 WL 1005907 (Ky. 2010)(2008-SC-000786-MR), wherein the same trial court imposed requirements almost identical to those imposed sub judice on a sex offender during his conditional discharge. Said requirements were held to be beyond statutory authorization by the Kentucky Supreme Court in an unpublished decision. The Commonwealth further argues that, given the trial court could not have been aware of the Smith holding prior to issuing the order in this case, this Court should only vacate the portions of the sentence that are beyond the trial court's statutory authority and leave the remainder of the sentence intact. After our review of the Commonwealth's argument, we do not find the argument to be dispositive; while Smith is not a published opinion, by virtue of Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) we have considered the merits of Smith and agree with the Kentucky Supreme Court's learned reasoning. In light of Smith, we must agree with Baynum that the requirements placed upon her in her sentence exceeded the trial court's authority and, thus, are in error. Accordingly, we reverse and remand this portion of her sentence.
With these arguments in mind, we now turn to the dispositive issue on appeal, that the jury instructions on each count of first-degree unlawful transaction with a minor were identical and thus did not protect Baynum against nonunanimous verdicts or double jeopardy.
At the outset, we note that Baynum has conceded that this issue concerning jury instructions was not properly preserved for our review and requests a palpable error review pursuant to RCr 10.26. Accordingly, we shall conduct a palpable error review. RCr 10.26 states:
Manifest injustice requires showing a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). "To discover manifest injustice, a reviewing court must plumb the depths of the proceeding...to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable." Martin at 4.
Further refining the parameters of RCr 10.26, the Kentucky Supreme Court in Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), undertook an analysis of what constitutes a palpable error:
Id. at 349. At trial, the court issued Instruction Number 8 to the jury which stated:
The trial court also issued Instruction Number 11 which stated the exact same language as Instruction Number 8 except Instruction Number 11 referenced Count IV of the indictment. In contrast, Instruction Number 8 made no reference to any count of the indictment. The jury found Baynum guilty under both counts.
The Kentucky Supreme Court recently addressed a similar situation in Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009). In Miller, palpable error review was likewise sought for an unpreserved objection to jury instructions on the same grounds now argued by Baynum. The Court in Miller ultimately held that such an unpreserved error may rise to the level of palpable error. In so holding, the Miller Court undertook a learned discussion on the applicable law in Kentucky, which we have set forth herein:
Miller at 695, citing Miller v. Commonwealth 77 S.W.3d at 576. The Court in Miller further noted:
Miller at 695-696 (internal footnotes omitted).
In this case, Baynum's identical jury instructions on multiple counts of first-degree unlawful transaction with a minor failed to factually differentiate the alleged instances of the crime. We do note that one jury instruction references a particular count in the indictment and that the other instruction does not reference the indictment whatsoever, but we do not see this as the differentiation between instructions that is required by Miller, Bell and Harp. Further, we believe this instructional error to be a palpable error affecting Baynum's constitutional rights. See Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002), and Miller v. Commonwealth, 283 S.W.3d 690, 695-696 (Ky. 2009).
We disagree with the argument asserted by the Commonwealth that Baynum was only convicted of two counts of unlawful transaction with a minor and, thus, she cannot realistically argue how she was actually prejudiced. We remind the Commonwealth that the "burden is on the government in a criminal case to prove every element of the charged offense beyond a reasonable doubt and that the failure to do so is an error of constitutional magnitude." Miller v. Commonwealth, 77 S.W.3d 566 at 576.
Second, the burden is not Baynum's to bear. We direct the Commonwealth's attention to Bell, wherein the court stated "Nor has the Commonwealth met its burden to show affirmatively that `no prejudice resulted from the error.'" Bell at 744, quoting Harp, 266 S.W.3d at 818. Clearly, the Commonwealth's violation of Baynum's constitutional rights in this case resulted in actual prejudice.
In light of the foregoing, we reverse Baynum's conviction for unlawful transaction with a minor and that portion of her sentence which exceed the trial court's authority in light of Smith, and remand to the trial court for a new trial and sentencing. We affirm Baynum's remaining convictions sub judice.
VANMETER, JUDGE, CONCURS IN RESULT ONLY.
