NOT TO BE PUBLISHED
OPINION
THOMPSON, Judge.
David L. Shumake appeals from a judgment of the Hardin Circuit Court following a jury verdict of guilty on one count of first-degree sexual abuse. Shumake argues the trial court committed reversible error by giving a jury instruction that permitted the jury to find him guilty of an uncharged crime and by failing to give an instruction on third-degree sexual abuse. We conclude the trial court committed reversible error when it instructed the jury on an uncharged offense and reverse.
On February 21, 2013, the Hardin County grand jury indicted Shumake on two counts of first-degree sexual abuse. The indictment arose from acts allegedly occurring on December 7, 2012, and December 9, 2012, involving Shumake's alleged inappropriate sexual contact with his stepdaughter, A.H. The jury returned a not guilty verdict as to Count I charging inappropriate sexual contact on December 7, 2012. However, the jury returned a guilty verdict on Count II charging inappropriate sexual contact with A.H. on December 9, 2012. The jury recommended a sentence of four-years' imprisonment.
As to the acts allegedly committed on December 9, 2012, it was alleged that Shumake and his wife, Marion Shumake, spent much of the day drinking and dancing at their home. Marion testified that Shumake drank more than half of a 1.75 liter bottle of tequila. Marion consumed alcohol and took prescription pain medication. At the time, A.H. was younger than sixteen years old.
That evening, A.H. got into bed with her mother. A.H. testified that Shumake later got into the bed and lay down across her and her mother's legs. A.H. alleged that while her mother was asleep, Shumake pulled A.H.'s shorts down and touched her in an inappropriate, sexual manner.
Shumake testified that he would often make sexual advances toward his wife when he was intoxicated. On December 9, 2012, he believed he was having sexual contact with his wife and not A.H. He testified that he had no recollection of touching A.H. in an inappropriate, sexual manner, but did not deny doing so.
Shumake requested an instruction on third-degree sexual abuse on both counts of the indictment. He further requested an instruction on mistake of fact and voluntary intoxication as well as a sexual misconduct instruction on Count II. The trial court denied Shumake's requests for instructions on third-degree sexual abuse, sexual misconduct and voluntary intoxication.
The appropriateness and the content of a mistake of fact instruction were argued by the Commonwealth and Shumake. Shumake argued a mistake of fact instruction was warranted because there was evidence he believed he was touching Marion and not A.H. The Commonwealth argued that a mistake of fact instruction was not appropriate because even if the jury found Shumake believed he was touching his wife, her intoxicated state made it impossible for her to consent so the jury could still find him guilty of first-degree sexual abuse. The trial court pointed out that Shumake had not been charged with first-degree sexual abuse of Marion. Nevertheless, the trial court ultimately gave Instruction No. 6 which included the objected to language referring to Marion's inability to consent. In its entirety, the instruction stated:
Even though the Defendant might otherwise be guilty of First-Degree Sexual Abuse under Instruction Nos. 4 or 5 or both, you shall find him not guilty under those Instructions if, at the time he committed the offense or offenses, he actually, although mistakenly, believed that he was touching his wife and, therefore, did not believe that he was touching a person less than sixteen years of age; however, if you believe from the evidence beyond a reasonable doubt that his wife was at the time incapable of consent due to being physically helpless and that the Defendant knew that she was physically helpless, then the Defendant would be none-the-less guilty of First-Degree Sexual Abuse. (Emphasis added).
The first issue presented is whether Instruction No. 6 was erroneous. The first portion of the instruction is what is referred to as a "mistake of fact" instruction and derived from statutory law. Kentucky Revised Statutes (KRS) 501.070 provides in part as follows:
(1) A person's ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless:
(b) The statute under which he is charged or a statute related thereto expressly provides that such ignorance or mistake constitutes a defense or exemption; or
Subsection (2) of that same statute provides:
When ignorance or mistake relieves a person of criminal liability under subsection (1) but he would be guilty of another offense had the situation been as he supposed it was, he may be convicted of that other offense.
KRS 510.110(1)(c)(1) states a person twenty-one years old or more is guilty of first-degree sexual abuse when he or she "[s]ubjects another person who is less than sixteen years old to sexual contact[.]" A defense specifically provided for in KRS 510.030 states that it applies to crimes based on the victim's lack of consent based on age:
In any prosecution under this chapter in which the victim's lack of consent is based solely on his incapacity to consent because he was less than sixteen (16) years old, an individual with an intellectual disability, mentally incapacitated, or physically helpless, the defendant may prove in exculpation that at the time he engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for such incapacity to consent.
Shumake contends that his mistaken belief he was touching his wife and not A.H. entitled him to a mistake of fact instruction. His quarrel is with the language of the instruction given. On appeal, the Commonwealth suggests Shumake was not entitled to a mistake of fact instruction at all because KRS 510.030 addresses only mistakes regarding the victim's ability to consent and not to questions of who was the intended victim. The Commonwealth points out that sexual abuse is not an intent crime. Isaacs v. Commonwealth, 553 S.W.2d 843 (Ky. 1977).
Any debate regarding whether a mistake of fact instruction was warranted under the evidence is now purely academic. In the Commonwealth's aptly phrased words, "the instruction was given, and it is the language of the instruction which is before this Court."
"Our standard of review governing jury instructions by a trial court is whether the court committed an abuse of discretion." Allen v. Commonwealth, 278 S.W.3d 649, 655 (Ky.App. 2009). Abuse of discretion is defined as conduct by a court acting arbitrarily, unreasonably, unfairly, or in a manner `unsupported by sound legal principles.'" Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
It is a basic underpinning of our criminal justice system that a defendant may be tried only for the crimes charged and does not have to defend against an uncharged crime. Although Kentucky Rules of Criminal Procedure (RCr) 6.16 permits an "indictment, information, complaint or citation to be amended any time before verdict or finding" it may be amended only "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."
The rules for amending an indictment were set forth in Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997):
Our case law provides that an indictment may be amended at any time to conform to the proof providing the substantial rights of the defendant are not prejudiced and no additional evidence is required to amend the offense. See Yarnell v. Commonwealth, Ky., 833 S.W.2d 834 (1992); Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991). It has additionally been held that reasonable certainty about the charge is required, Runyon v. Commonwealth, Ky., 393 S.W.2d 877 (1965), and that a defendant has the right to rely on the fact that he would only have to rebut evidence of which he was given notice. Commonwealth v. Ellis, 133 Ky. 625, 118 S.W. 973 (1909). Finally, the United States Supreme Court held in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), that after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself.
Here, there was no actual formal amendment of the indictment to charge Shumake with first-degree sexual abuse of Marion. However, the instruction given by the trial court which permitted the jury to find guilt based on sexual contact with Marion, was a constructive amendment of the indictment to charge Shumake with first-degree sexual abuse against Marion.
Under Instruction No. 6, even if the jury found Shumake not guilty under Instruction No. 5 of first-degree sexual abuse against A.H., it could find him guilty of first-degree sexual abuse under Instruction No. 5 if it found Marion was incapable of consent. Any reasonable juror would understand the instruction to mean Shumake could be convicted based on a finding he sexually abused Marion. Therefore, the constructive amendment of the indictment through Instruction No. 6 impermissibly charged a new offense. RCr 6.16.
The jury instruction given also implicates the fundamental notion of our criminal justice system that a defendant is entitled to a unanimous verdict. Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15 (1942). We simply do not know whether some or all the jurors decided Shumake's guilt based on Instruction No. 6 or Instruction No. 5. "It is impossible to determine from the proof, the jury instruction, and the verdict what criminal act the jury believed [Shumake] committed. This violated [his] rights to a unanimous verdict and to due process." Johnson v. Commonwealth, 405 S.W.3d 439, 457 (Ky. 2013). Under the circumstances, the error is not only prejudicial but is "a fundamental error that is jurisprudentially intolerable." Id.
Shumake argues that if this Court does not conclude Instruction No. 6 constitutes reversible error, reversal is required because he was entitled to a third-degree assault instruction. We are reversing Shumake's first-degree sexual abuse conviction and, therefore, the issue is moot.
For the foregoing reasons, the judgment of the Hardin Circuit Court is reversed.
LAMBERT, J., JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
STUMBO, Judge, DISSENTING.
I respectfully dissent from the majority Opinion. Though the majority correctly concludes that Instruction No. 6 ("MISTAKE OF FACT") was improperly given to the jury, the dispositive inquiry is whether this instruction prejudiced Shumake's defense or otherwise resulted in harm. I conclude that it did not. While the Mistake of Fact instruction was wholly unwarranted since no culpable mental state was required for the offense (KRS 501.070(1)(a)), and though Marion's ability to consent had no bearing whatsoever on the charged offense as she is not the purported victim and was never improperly touched, I nevertheless must regard the inclusion of this instruction as harmless error. RCr 9.24 states that,
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
An improper jury instruction may be characterized as harmless error if it does not affect the substantial rights of a party. Burton v. CSX Transportation, Inc., 269 S.W.3d 1 (Ky. 2008). In the matter at bar, Shumake was convicted under Instruction No. 5. The Mistake of Fact instruction at issue, Instruction No. 6, did not form the basis for his conviction. Rather, it set out a defense to the charge of First-Degree Sexual Abuse — albeit an improper one — which the jury determined did not operate to relieve Shumake of criminal culpability. Thus, the outcome of the proceeding would not have been different but for Instruction No. 6. Additionally, I am not persuaded by Shumake's contention that Instruction No. 6 was tantamount to charging him with a crime not contained in the indictment. Shumake was never charged with, nor found guilty of, First-Degree Sexual Abuse as against Marion.
The majority concludes that we "simply do not know whether some or all the jurors decided Shumake's guilt based on Instruction No. 6 or Instruction No. 5." Instruction No. 6, however, set out a defense to the charge of First-Degree Sexual Abuse and provided that "you shall find him not guilty if . . . he actually . . . believed he was touching his wife." (Emphasis added). It is crystal clear that Shumake was convicted under Instruction No. 5 and not No. 6 as the majority surmises for at least two reasons. First, Instruction No 6. provided the jury with a means of finding Shumake not guilty; and second, the jury foreperson signed the Jury Instruction at page 6 under the express finding of "guilty . . . under Instruction No. 5." The jury's decision could not be more clear.
I agree with the majority's conclusion that Instruction No. 6 was improperly given to the jury; however, because this instruction was merely a means of finding Shumake not guilty, and because its inclusion had no effect on the outcome of the proceedings, I characterize it as harmless error not affecting the substantial rights of a party. Burton, supra. I would affirm the Judgment of the Hardin Circuit Court.
