David Alan Jenkins v. Comm., affirming in part, reversing in part, and remanding, Kentucky Supreme Court, To Be Published.
71 page Opinion. Convictions for rape first and sodomy first, forty-year sentence.
· Reversal of sodomy conviction b/c of unanimity issue in jury instruction.
· Very, very slight evidence of physical force was sufficient to raise a jury question on rape and sodomy.
· No error in refusal to provide a sexual misconduct jury instruction; sexual misconduct is not a lesser included of rape. Sexual misconduct available only where non-consent is based on age. But see dissents, below.
· Complaining witness’s testimony that Jenkins committed the same acts against her as a child was relevant to motive and lack of consent. No 404(b) violation.
· No abuse of discretion in trial court’s allowing portions of Jenkins’s post-polygraph interview into evidence, rejecting Jenkins’ arguments on rule of completeness and being forced to give up his right to defend himself in order to exercise his right not to be convicted based on unreliable polygraph evidence.
· Dissents: Cunningham, joined by Venters, and Venters, joined by Cunningham, would have overruled Cooper and held sexual misconduct to be a lesser included offense of forcible rape.
Susan Balliet represented Jenkins on appeal.