Court orders new trial in Lawrence sex crimes case

By TONY FYFFE

BSN Editor

LOUISA — The Kentucky Supreme Court Thursday ordered a new trial for a Lawrence County man convicted of raping, sodomizing and sexually abusing a juvenile in 2016 and 2017.

The state’s highest court reversed James Gartin’s conviction and 70-year sentence, saying the jury was not properly instructed by the judge.

Gartin was indicted on charges he engaged in sexual intercourse and deviate sexual intercourse with a girl under the age of 12 on two or more occasions between Jan. 13, 2016, and Jan. 13, 2017. He was convicted by a Lawrence Circuit Court jury of the charges in May 2019.

Gartin argued on appeal that the jury instructions on the rape, sodomy and sexual abuse charges were “duplicative and resulted in non-unanimous verdicts,” according to the Supreme Court.

“During deliberations, the jury asked the trial court to explain the difference between the two identically-worded sodomy instructions,” the Supreme Court said. “The court indicated it could not do so after conferring with Gartin and the Commonwealth and instructed the jury to make its determination based on their memory of the evidence as a whole.”

The instructions did not include “necessary elements of the crimes for which Gartin stood charged,” the court said, and did not “comport with the indictment or statutory requirements as they omit the ‘continuing course of conduct’ element of KRS 501.100.”

“Prosecuting child sexual abuse cases can be extremely difficult, especially where, as here, the child cannot separate with specificity the numerous instances of abuse occurring over an extended period of time but instead describes patterns of illicit conduct,” the court wrote. “By enacting KRS 501.100, at this Court’s suggestion, the Legislature heeded the call to address this problem and thereby gave prosecutors an important option when presented with the difficulty of charging—and convicting—a person accused of multiple sexual offenses against a child or other vulnerable victim. This statutory tool was designed to avoid the very scenario presented today.”

The jury deliberating Gartin’s case was instructed on standard rape and sodomy counts rather than properly instructed under the statute and its continuing course of conduct requirements, the Supreme Court said.

“It is axiomatic that the trial court has a duty to prepare and give instructions to the jury on the offenses supported by the evidence introduced at trial and reject any proposed jury instructions that do not accurately reflect the law,” the Supreme Court said. “Had the trial court but taken greater care to fulfill this duty, it is unlikely we would now be constrained to reverse Gartin’s convictions. We pause to note that although it had no absolute duty to do so, the Commonwealth could have objected to the instructions or otherwise apprised the trial court of its misstep rather than allowing it to proceed headlong into committing reversible error. Whether by design, inattention, or otherwise, it did not do so. Nevertheless, because the trial court ultimately bears the obligation to properly instruct the jury, its failure to do so has led to this unfortunate result which will undoubtedly cause the young victim to return to court to testify about and relive once again the horrible abuses she endured. This simply should not have happened.”

The court directed the judge on retrial to “instruct the jury with specificity as to each act being charged for each count of the indictment to avoid a unanimity problem.”