ANTONIO SALLEE V. COMMONWEALTH OF KENTUCKY

Sallee and Rosetta Sallee (“Rosetta”) had been married for seven years

and resided in Hopkinsville, Kentucky. Between July 2015 and February

2016, Rosetta’s daughter Emily (mother of Jane) and Jane1 lived in the Sallee

household for about a month and a half. Rosetta’s other daughter, April

(Mary’s mother), and Mary, also spent time in the Sallee home during the same

time period.

In December 2016, April reported to police that Mary had been sexually

abused by Sallee. After an investigation, Sallee was indicted on the following

six charges stemming from the alleged sexual abuse of his step-grandchildren:



1 Jane and Mary are used to identify the underage children in the case, all

names related to the children have been changed in an effort to protect their identity.

3

sexual abuse, first-degree (Mary); sodomy, first-degree (Jane); rape, first-degree

(Jane); unlawful transaction with a minor, first-degree (Mary); incest (Jane);

and indecent exposure, first-degree (Mary). The indictment was amended

about a year later to add three additional charges pertaining to Mary: sodomy,

first-degree; rape, first-degree; and incest.

The first trial was held April 26, 2018. At the conclusion of the trial, the

court granted a directed verdict on the charges of rape, first-degree (Mary);

sodomy, first-degree (Jane); indecent exposure, first degree (Mary); and

unlawful transaction with a minor. Because the jury was unable to reach a

verdict on the remaining charges, a mistrial was declared.

When the case was tried again a couple of months later, both children

testified. Mary, who was eight at the time of the trial, testified Sallee touched

her on her “front part” with his tongue, licking her. When asked, she testified

that this type of encounter happened more than once. Mary testified that it

happened in the living room on the couch at her grandma’s when she was six.

Mary also stated that sometimes when her cousins would come to their

grandmother’s house Sallee would put her in the laundry room and would do a

similar act with her on the dryer.

The prosecutor then asked Mary if Sallee did anything else to her and

she stated “no.” Then the prosecutor asked her if Sallee touched her with any

other parts of his body. Mary testified that Sallee put his “front part” into her

“bottom” and moved it back and forth. She stated this occurred when she was

six, that it hurt, and that Sallee told her to keep it secret. Mary testified that it

was always on the living room couch and that it occurred more than one time.

4

April, Mary’s mother, testified about behavioral changes in Mary that she

noticed before she went to police. She testified that Mary began having

accidents on herself, refused to bathe on her own, and exhibited a different

attitude.

Jane was seven when she testified at the second trial and she carried her

doll Annabelle with her to the stand. She initially had trouble verbalizing

where she was touched, but finally did say he touched her “front spot.” Jane

stated that Sallee touched her where he was not supposed to touch her. When

the prosecutor asked her to come off the witness stand and identify Sallee, she

became very upset. Jane stated she could not answer questions, could not say

where he touched her, the court then stated she did not have to look around

the courtroom. The prosecutor tried to have her declared unavailable, but the

court denied the request. The court then took a break.

When Jane returned she had two dolls, and the prosecutor asked her to

show where Sallee touched her. She paused for almost a minute before she

would answer. Jane then indicated that Sallee touched her crotch, pointing to

the crotch on the doll, and said he touched her crotch with his tongue. She

stated that it happened at his house, in the living room on the couch. The

prosecutor then asked if Sallee touched her with his tongue more than once,

and Jane responded “more.” Jane also stated that on another occasion it

happened in the laundry room, on top of the dryer.

Jane further testified that Sallee had put his “private part” in her “private

part.” The prosecutor asked her if this had occurred more than once, to which

Jane responded “more.” Jane said she was in the laundry room when it

happened, and that her grandmother was in her room when it happened. Jane

5

was five years old at the time and she said that her three-year-old sister walked

in, but Sallee did not do anything. Jane testified that she does not remember if

Sallee said anything to her when it happened, and that she did not remember

anything else from when she was five.

At the close of the second trial Sallee was found guilty of fifteen (15)

separate counts: one count of sexual abuse; six counts of sodomy; one count of

rape; and seven counts of incest. Sallee was sentenced to ten years for the one

count of sexual abuse, thirty years on each count of sodomy, thirty-five years

on the count of rape, and thirty years on each count of incest to run for a total

of seventy (70) years.

II. ANALYSIS

A. THE COMMONWEALTH CONCEDES THAT THE TRIAL COURT

ERRED BY ADDING ADDITIONAL UNINDICTED FELONY CHARGES

The Fifth Amendment requires that a defendant only be tried for criminal

conduct that is presented in an indictment handed down by a grand jury.2

Sallee submits that he went to trial facing five charges yet was convicted of

fifteen. Further, it is a constitutional requirement of an indictment to

“sufficiently apprise a defendant of the conduct for which he is called to

answer.”3 Sallee claims that as a result of these additional charges without an

amended indictment he was not presented with an opportunity to plan a

defense to all of the state’s accusations, violating his Fourteenth Amendment

rights. Furthermore, pursuant to Kentucky Rules of Criminal Procedure (RCr)



2 Stirone v. United States, 361 U.S. 212, 217-19 (1960).

3 Kelly v. Commonwealth, 554 S.W.3d 854, 861 (Ky. 2018) (quoting Schrimsher

v. Commonwealth, 190 S.W.3d 318, 325 (Ky. 2006)).

6

6.16, “[t]he court may permit an indictment, information, complaint or citation

to be amended any time before verdict or finding if no additional or different

offense is charged and if substantial rights of the defendant are not

prejudiced.”

The Commonwealth notes that the jury convicted Sallee on ten felony

counts that had not been charged in the indictment. The Commonwealth

states that while an indictment can be amended at any time pursuant to RCr

6.16, and while these additional charges were of the same type of crime, they

are ten entirely separate criminal acts.

The Commonwealth concedes that Sallee was not provided notice of the

ten additional felonies of which he was ultimately convicted. Additionally, the

Commonwealth concedes that it was improper to subject Sallee to conviction

on these ten unindicted charges. Upon retrial, the jury shall only be instructed

on charges as per the indictment.

B.UNANIMOUS JURY VERDICT ISSUE

Sallee argues that the jury instructions provided were not unanimous

since both Mary and Jane testified that the acts perpetrated by Sallee occurred

more than once. “Section 7 of the Kentucky Constitution requires a

unanimous verdict.”4 Sallee claims that in the present case, the jury could not

differentiate which of the incidents they were being instructed on. The

Commonwealth concedes that the instructions were deficient “since they did

not have the jury identify which ‘more than once’ instance on which it was

convicting.”



4 Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978).

7

Because we are reversing on other grounds, we decline to address this

issue on the merits. However, we believe it is important to provide some

guidance for this issue on remand as it will almost undoubtedly reoccur. In

Johnson v. Commonwealth, this Court held that “a general jury verdict based

on an instruction including two or more separate instances of a criminal

offense, whether explicitly stated in the instruction or based on the proof—

violates the requirement to a unanimous verdict.”5 We further acknowledged

the particular difficulty child sex abuse cases, such as the one at bar, could

present when trying to honor this rule:

[a]dmittedly, there are a variety of crimes where

complying with this mandate will not be easy because

of the difficulty in breaking the crimes down into

specific but distinct instances based on witness

recollections. We frequently see this in child sexabuse cases, where the child is unable to testify to

specific instances of abuse (such as on a certain date)

but instead describes patterns of conduct over time

(such as that the act occurred every night).

Frequently, the defendants in such cases get jury

instructions that apply to the time period in which the

multiple incidents occurred and for which, if the proof

was more specific and multiple counts were charged,

multiple convictions could result.6

We directed that in such cases “lawyers and trial courts must take steps

to assure the unanimity of the jury and the due process rights of the

defendant,”

7 and that “the best option may be to require the Commonwealth to

elect before trial which instance to prosecute and then be careful to limit the



5 405 S.W.3d 439, 449 (Ky. 2013).

6 Id. at 456.

7 Id. at 455.

8

proof at trial to that single instance of the crime.”8 These safeguarding

principles should be carefully adhered to on remand.

In addition, we note that if a child is asked whether the alleged abuse

occurred more than once, or if a child states that it happened more than once

unprompted, an admonition to the jury can cure a potential unanimity

violation. Specifically, the trial court should inform the jury that the victim’s

acknowledgement of multiple instances of abuse should not be considered

additional acts upon which they may base a finding of guilt. This will ensure

that the jury’s guilty verdict, if found, is based on a single instance of conduct,

thereby protecting the defendant’s right to a unanimous verdict.

The trial court and the parties must take great care on remand to follow

the foregoing principles.

C. DOUBLE JEOPARDY DOES NOT BAR A SEPARATE CONVICTION

FOR INCEST

Sallee argues that double jeopardy bars him from being convicted of

incest since it is included in the offenses of rape and sodomy. Sallee asserts

that the convictions fail the Blockburger9 test. This issue is unpreserved but is

subject to palpable error review under RCr 10.26.

In Commonwealth v. Burge, we adopted the Blockburger analysis of

double jeopardy.

[W]e now depart from the ‘same conduct’ test…and the

‘single impulse’ test…, and declare that double

jeopardy issues arising out of multiple prosecutions

henceforth will be analyzed in accordance with the



8 Id. at 456.

9 Blockburger v. United States, 284 U.S. 299 (1931).

9

principles set forth in Blockburger v. United

States…and KRS 505.020.10

The Blockburger analysis requires a determination of “whether the act or

transgression complained of constitutes a violation of two distinct statutes and,

if it does, if each statute requires proof of a fact the other does not.”11

Sallee argues that the instructions in the present case permitted the jury

to find him guilty of two crimes from the exact same act. Specifically, he

argues that a double jeopardy violation occurs as to the charge of sodomy and

its corresponding charge of incest regarding Mary, and as to the charge of rape

and corresponding incest regarding Jane. Sallee contends that the incest

instructions contained all the same elements of the corresponding sodomy and

rape instructions plus the element of relationship.

Pursuant to Kentucky Revised Statute (“KRS”) 530.020(1), a person is

guilty of incest when he has “sexual intercourse or deviate sexual

intercourse…with a person whom he…knows to be [a]…descendant[.]” KRS

530.020(2)(c)(1) makes incest a class A felony if the victim is less than twelve

years old. Rape occurs when a person engages in sexual intercourse with

another person incapable of consent because they are less than twelve years

old.12 Sodomy occurs when a person engages in deviate sexual intercourse

with a person incapable of consent because they are less than twelve years

old.13 In Johnson v. Commonwealth, this Court held that rape and incest



10 947 S.W.2d 805, 811 (Ky. 1996).

11 Id. (citing Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994)).

12 KRS 510.040(1)(b)(2).

13 KRS 510.070(1)(b)(2).

10

satisfy Blockburger, as rape requires proof of age while incest requires proof of

descendant relationship.14

[E]ven if the Commonwealth had only proved that

Appellant engaged in sexual intercourse with each of

his daughters on one occasion, his Fifth Amendment

protection against double jeopardy would still not have

been violated. The test for determining whether a

defendant can be convicted of more than one crime

arising out of a single act is whether each charge

requires proof of a fact that the other does

not. Blockburger, 284 U.S. at 304, 52 S.Ct. 180. The

crimes of rape and incest each require proof of a fact

that the other does not. Specifically, rape requires

proof of age, whereas incest does not; incest requires

proof of relationship, whereas rape does not. See KRS

530.020; KRS 510.040.

15

Analogously, sodomy requires proof of age, whereas incest does not. Sallee

argues that double jeopardy issues arose because the incest instructions

included the victims were under twelve years old. However, age is not an

element of the charge of incest, rather the age of a victim changes the

classification of the felony for which the defendant can be prosecuted.

Therefore, we do not find error, much less palpable error, because we

hold no double jeopardy violation occurred when Sallee was convicted of incest

related to the rape conviction as to Jane and incest related to the sodomy

conviction as to Mary.

D. DOUBLE JEOPARDY BARRED SALLEE’S CONVICTIONS FOR

TWO COUNTS OF SODOMY AND TWO CORRESPONDING

COUNTS OF INCEST REGARDING JANE

Sallee was originally indicted on one count each of sodomy and incest

corresponding to the sodomy count as to Jane. Here, Sallee argues that at the



14 292 S.W.3d 889, 897 (Ky. 2009).

15 Id.

11

close of the Commonwealth’s case, during the April 2018 trial, defense counsel

made a directed verdict motion on these offenses, as Jane did not testify about

all of the charges relating to the indictment. The prosecutor agreed that the

evidence as to Jane only supported rape and incest stemming from the rape.

The trial court granted the directed verdict motion and ruled the only

instructions given would be those consistent with the evidence presented.

Ultimately, the trial court declared a mistrial when the jury could not reach a

verdict on any charges.

The Commonwealth then tried Sallee again on the same indictment in

June 2018. Sallee claims the error is preserved as defense counsel objected in

chambers at the beginning of the trial to instructions on any offense which a

directed verdict had been granted. This Court has held that a directed verdict

is the equivalent of an acquittal under the laws of double jeopardy.16 Sallee

further argues that even if this Court found that defense counsel failed to

properly preserve the error to the instructions that “constitutional protection

against double jeopardy is not waived by failure to object at the trial level.”17

This Court has held, double jeopardy issues fall within the palpable error rule

because this Court “do[es] not want to let stand a conviction possibly tainted

by double jeopardy.”18

Moreover, the Commonwealth concedes that since Sallee was acquitted

of the sodomy and incest charge as to Jane in the first trial, erroneously



16 Walker v. Commonwealth, 288 S.W.3d 729, 743 (Ky. 2009) (citing

Commonwealth v. Mullins, 405 S.W.2d 28, 29 (Ky. App. 1966)).

17 Montgomery v. Commonwealth, 505 S.W.3d 274, 279 (Ky. App. 2016).

18 Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009) (citing Terry v.

Commonwealth, 253 S.W.3d 466, 470 (Ky. 2007)).

12

instructing the jury on two counts of sodomy in the second trial place Sallee in

double jeopardy. As a consequence, this Court must vacate the convictions for

first-degree sodomy and the corresponding incest as it relates to Jane.

E. TESTIMONY BY THE MOTHER REGARDING MARY’S BEHAVIORAL

CHANGES IMPROPERLY BOLSTERED MARY’S CREDIBILITY.

During opening statement, the prosecutor told the jury they would hear

from Mary’s mother about behavioral changes she observed in Mary prior to

reporting the abuse to police. After Mary testified, April testified that Mary

began to urinate on herself, did not want to take a bath by herself, did not

want to use the bathroom alone, and that she was not acting normal.

The issue is unpreserved, but Sallee requests palpable review, claiming

that it was the improper use of Child Abuse Accommodation Syndrome

(CSAAS) testimony through a non-expert witness and that it improperly

bolstered Mary’s testimony, depriving him of a fair trial. Our court has held on

several occasions that CSAAS testimony, either by way of expert or lay

testimony, is inadmissible. We have held that it lacks sufficient scientific

standing in the community to be admissible to prove that a child has been

sexually abused.19

But what is CSAAS? Ronald Summit, M.D. published a paper in 1983

which described what he asserted were five reactions children might exhibit



19 Bussey v. Commonwealth, 697 S.W.2d 139 (Ky. 1985) (expert testimony); King

v. Commonwealth, 472 S.W.3d 523 (Ky. 2015) (detective’s testimony regarding the

delay of reporting sexual abuse was error); Blount v. Commonwealth, 392 S.W.3d 393

(Ky. 2013) (parents testified that after consulting with a clinical psychologist they

believed their child’s change in appearance and emotional state were because she had

been sexually abused by Blount).

13

when sexually abused: (1) secrecy, (2) helplessness, (3) entrapment and

accommodation, (4) delayed, and unconvincing disclosure, and (5) retraction.20

In Sallee’s case, no expert testimony was solicited regarding CSAAS, and

April did not link her observations to a mental health professional as did the

parents in Blount, nor did she mention CSAAS. Without expert testimony, it is

only speculation that the behaviors described by April were probative in any

way to the issue of whether she had been sexually abused by Sallee, or anyone.

In the context presented, first in opening, then with her testimony, and finally

with the closing, it appears that the prosecution believed it was a highly

probative link. However, without any expert testimony to support it, April’s

testimony as to her daughter’s behavioral changes was speculative and

improperly admitted under our caselaw.

Sallee also alleges that April’s testimony was used to improperly bolster

Mary’s testimony.21 Our court recently held that testimony by a mother that

vouched for the truthfulness of her daughter, a sexual abuse victim, was error

because such testimony “remove[s] the jury from its historic function of

assessing credibility” and is in error.22 While the testimony here is not as direct

a statement regarding believing another witness, to point to a group of

behaviors and infer that it is probative of her having suffered abuse is likewise

vouching for another witness. Having reviewed Mary’s cross examination



20 Summit, R.C. (1983). The child sexual abuse accommodation syndrome.

Child Abuse Neglect, 7(2), 177-93. https://doi.org/10.1016/0145-2134(83)90070-4

(last visited April 2020).

21 April testified after her daughter.

22 Yates v. Commonwealth, 539 S.W.3d 654, 666 (Ky. 2018) (quoting, in part,

Newkirk v. Commonwealth, 937 S.W.2d 690, 696 (Ky. 1996)).

14

testimony, it can hardly be said that defense counsel attacked her credibility.

Therefore, we hold that the changed behavior testimony could not be viewed as

proper rehabilitation evidence as her credibility had not been assailed.

Since we are reversing on other grounds, we will not analyze the issue

further as to whether palpable error occurred. Upon retrial, if the

Commonwealth wishes to present testimony from April regarding Mary’s

changes in behavior, the trial court must determine prior to trial whether the

evidence is CSAAS-related testimony. Or, if the trial court finds the evidence is

admissible on other grounds, it must determine whether an expert is necessary

to lay a proper foundation and establish its relevance and probativeness.

THE TRIAL COURT DID NOT ERR IN FINDING MARY AND JANE

COMPETENT TO TESTIFY

Sallee claims that the trial court did not apply the correct standards for

competency, and that Jane and Mary were not competent to testify. Sallee

alleges the trial court went beyond questioning Jane and Mary about their

obligations to tell the truth and determining if they were able to testify about

their recollections. Sallee argues that the trial court led the children into

rehearsing their testimony regarding the allegations against him.

Kentucky Rule of Evidence (“KRE”) 601(b)(1)-(4) sets forth the preliminary

areas of inquiry where the competency of a witness to testify is at issue. A

witness is competent unless the witness (1) lacks the capacity to accurately

perceive the matters about which the witness proposes to testify; (2) lacks the

capacity to recall facts; (3) lacks the capacity to express himself or herself so as

to be understood, either directly or indirectly or via interpreter; and (4) lacks

the capacity to understand the obligation to tell the truth.

15

A trial court has the sound discretion to determine whether a witness

is competent to testify.23 The trial court is in the unique position to observe

witnesses and to determine their competency.

24 Unless there was a clear

abuse of discretion, the trial court’s ruling on competency will not be disturbed

on appeal.25

The trial court conducted a competency hearing on April 5, 2018. Prior

to speaking with the children, the Court spoke with April and Donna26,

individually, regarding the allegations, including when they each found out

about the allegations, and what each girl had said to them. The judge also

asked how many people the girls had talked to and who they had talked to. He

explained that the purpose of his in-chamber interview was to determine if the

children understood being truthful. The Court told the women that they each

could sit in with their child during the interview. The judge informed Donna

she could be supportive and encourage her to tell the judge the truth, but not

to make any other comments.

The trial court then brought Mary and April into chambers and asked

Mary a series of questions, including whether she understood that it was

important to tell the truth. The trial court asked Mary if she understood the

difference between the truth and a story, she told him that she knew she would

have to testify in court, and that she was willing to testify in court. The trial

court then interviewed Jane, in the presence of Donna, and asked Jane if she



23 Pendleton v. Commonwealth, 685 S.W.2d 549, 551 (Ky. 1985).

24 Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978).

25 Pendleton, 685 S.W.2d at 551.

26 Donna is Jane’s stepmother.

16

remembered telling people what happened and if she had told the truth. Jane

confirmed that she had told the truth. Once the court began asking her about

the allegations, she became quiet and Donna offered to hold her hand during

the interview and Jane accepted. Jane would not answer aloud, but she

would nod affirmatively to the questions.

From the bench, at the conclusion to the interviews, the trial court

stated, “Based on my interviews of the girls, I find that they are competent to

testify, and that they appreciate the seriousness of their allegations and they

will testify truthfully at trial and [the Commonwealth] is going to take steps to

make sure they are familiar with the courtroom and they will be able to testify

truthfully before the jury.”

Here, Mary and Jane both testified that they knew the difference between

truth and a lie, they recognized that it was a bad thing to tell a lie, and that

they had an obligation to tell the truth. Accordingly, we hold that the trial

court did not abuse its discretion in finding the children competent to testify.

However, we agree with Sallee that the trial court went outside the

parameters of KRE 601 when the children were questioned about matters

relating to the trial. In Kentucky v. Stincer, the United States Supreme Court

stated,

[Q]uestions at a competency hearing usually are

limited to matters that are unrelated to the basic

issues of the trial. Children often are asked their

names, where they go to school, how old they are,

whether they know who the judge is, whether they

know what a lie is, and whether they know what

happens when one tells a lie.27



27 482 U.S. 730, 741 (1987) (emphasis added).

17

Upon retrial, the questions to the children’s competency shall not

address the specific allegations but shall be limited to the parameters of KRE

601.

i. Additionally, Sallee argues that the trial court erred by not

formally swearing either child in before testimony.

As for the lack of an oath prior to testifying, we again review for abuse of

discretion. This Court has held that the trial court may determine whether a

formal oath is necessary in the case of a young child having been already found

competent to testify:

It is apparent that this has been left to the good

judgment of the trial court to decide whether a solemn

obligation to tell the truth is to be reinforced with a

formal oath in the case of very young children. In any

event, after a child has been found competent to

testify, the child becomes a witness the same as

any other witness who has taken an oath or

affirmed.28

The following exchanges occurred between the court and the children before

their testimony.

Judge: Hi Mary

Mary: Hi

Judge: You know, Ms. Gigandet is going to ask you some

questions?

Mary: responds in affirmative

Judge: Are you going to tell the truth?

Mary: Yes

Judge: Alright, thank you.



28 Gaines v. Commonwealth, 728 S.W.2d 525, 526 (Ky. 1987) (emphasis added).

18

When Jane was in the witness box, the following exchange occurred.

Judge: Hello.

Jane: Hi

Judge: Do you know Ms. Maggie is going to ask you some

questions? Are you going to tell us the truth?

Jane: Nods in the affirmative.

The trial court properly both found the children to be competent and

appropriately communicated with the children as to their solemn obligation to

tell the truth, pursuant to Gaines.

F. THE SENTENCING PHASE WAS NOT TAINTED

Lastly, Sallee claims that he was substantially prejudiced because the

Commonwealth presented incorrect or false testimony during the sentencing

phase regarding “custody credit” to be applied to his sentence. Though

unpreserved, Sallee now requests palpable error review as he believes that the

testimony affected the fairness and integrity of the sentencing phase rendering

it “shocking and jurisprudentially intolerable.”29

During the sentencing phase of the trial, the Commonwealth elicited

testimony from Probation and Parole Officer Tim Sending. Officer Sending

testified that all but one of Sallee’s convictions were Class A felonies.

Therefore, Sallee would have to serve 85% of his sentence before being eligible

for parole. The prosecutor asked Officer Sending to explain custody credits, to

which Officer Sending explained that it was the amount of time an individual

spends in custody prior to sentencing. The prosecutor then asked, “What is



29 Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).

19

the effect of that custody credit time on the sentence?” To which Sending

responded, “That time comes off whatever the individual has to serve before

parole eligibility.” Officer Sending then testified that Sallee had around 620-

630 days of custody credit.

Sallee argues that Officer Sending’s testimony was inaccurate and

confusing to the jury as it could have misled the jury, causing them to believe

that custody credit reduced parole eligibility to less than 85%.

We hold that nothing about Officer Sending’s statement gives the

impression that it reduced Sallee’s parole eligibility. The statement correctly

stated that custody credit reduces the time remaining to serve. We find no

error in this testimony.

For the foregoing reasons the judgment is reversed, and the case is

remanded to the Christian Circuit Court for a new trial.