Keram Christensen v. Commonwealth of Kentucky ( 2023 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
RENDERED: FEBRUARY 16, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0041-TG
(2022-CA-0093)
KERAM CHRISTENSEN APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
V. HON. GREGORY M. BARTLETT, JUDGE
NO. 19-CR-01444
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Keram Christensen received a sentence of seventy years’ imprisonment
following his conviction on 313 counts of possessing matter portraying a sexual
performance by a minor, eight counts of distributing matter portraying a sexual
performance by a minor, one count of promoting a sexual performance by a
minor (victim under 18), one count of promoting a sexual performance by a
minor (victim under 16), and one count of using an electronic communications
system to induce or procure a minor to commit a sexual offense. In an opinion
rendered this same date, we affirmed his convictions and sentence.1 During
the pendency of his direct appeal, the Kenton Circuit Court entered an order
forfeiting Christensen’s cash bond and he appealed to the Kentucky Court of
1Christensen v. Commonwealth, 2021-SC-0504-MR (February 16, 2023,
unpublished) (“Christensen I”).
Appeals. In the interest of judicial economy, we granted transfer and now
affirm.
The historical facts and procedural history underlying Christensen’s
convictions are set forth in Christensen I and need not be repeated in detail
here. For purposes of this appeal, only a brief summary of those facts is
necessitated. In August 2019 Christensen used an online dating service in an
attempt to entice a child to engage in illegal sexual conduct. Shortly thereafter,
the National Center for Missing and Exploited Children (NCMEC) generated a
Cyber Tipline Report which was forwarded to the Covington Police Department
for further investigation. A search was conducted pursuant to a warrant and
multiple incriminating pieces of evidence were recovered, resulting in
Christensen’s arrest and indictment on 65 counts of possessing matter
portraying a sexual performance by a minor and one count of distribution of
matter portraying a sexual performance by a minor. He was subsequently
released to home incarceration on October 2, 2019, after personally posting a
$100,000 cash bond. Conditions of release included Christensen having no
access to the internet or a smart phone. On April 14, 2021, after a
comprehensive forensic review of his electronic devices revealed additional
incriminating evidence, Christensen was arraigned on an indictment charging
him with the 324 offenses previously listed.
On the same day as his second arraignment, on motion of the
Commonwealth Christensen’s bond was revoked following a hearing. Evidence
was produced showing a search of Christensen’s cell phone and camera
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revealed he continued to view child pornography. A search of his residence
uncovered binders with printed matters portraying child pornography and
sexual performances by a minor. Additionally, proof was presented that
Christensen had created social profiles on at least two different websites
indicating his desire to meet “nudist boys and men, fathers and sons . . .” or
“fathers and sons, families, etc.” and offering to communicate through an
encrypted messaging application.
After his suppression motion was denied, Christensen entered a
conditional guilty plea and received a sentence of seventy years’ imprisonment
which this Court affirmed in Christensen I. During the pendency of his direct
appeal, the Commonwealth moved to forfeit the entirety of his cash bond. By
order entered on December 21, 2021, the trial court concluded Christensen
violated the conditions of his bond and had continued the course of criminal
conduct which had led to his indictment and convictions. Finding
Christensen’s violations were willful and noting the severity of the conditions
violated—including resumption of the criminal conduct for which he was
ultimately convicted on hundreds of counts of child pornography—the trial
court concluded forfeiture of the bond was appropriate. Christensen’s appeal
was transferred to this Court to be resolved contemporaneously with his direct
appeal.
For his sole allegation of error, Christensen argues forfeiture of the
entirety of his cash bond was excessive and does not comport with the
violations for which his bond was revoked. He concedes the determination of
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the amount of bond to be forfeited lies within the sound discretion of the trial
court but urges this Court to substitute its judgment for that of the trial court.
We decline Christensen’s invitation.
Forfeiture of a defendant’s bail is appropriate if he “shall willfully fail to
comply with the conditions of his release[.]” KRS2 431.545. If a defendant
violates the terms of his release, a trial court may order his arrest and require
him to “show cause why his bail bond should not be forfeited or the conditions
of his release be changed, or both.” RCr3 4.42(1). If, after a hearing, the trial
court finds by clear and convincing evidence the defendant has willfully
violated one or more terms of his release, forfeiture may be ordered. RCr
4.42(3). The trial court has sole authority to determine whether to impose,
forfeit, or remit bond. Commonwealth v. Carman, 455 S.W.3d 916, 925 (Ky.
2015) (citing Clemons v. Commonwealth, 152 S.W.3d 256, 259 (Ky. App. 2004)).
Such decisions will only be reversed when a reviewing court discerns an abuse
of discretion. Clemons, 152 S.W.3d at 260. See Long v. Hamilton, 467 S.W.2d
139, 141 (Ky. 1971) (“Appellate courts will not attempt to substitute their
judgment for that of the trial court and will not interfere in the fixing of bail
unless the trial court has clearly abused its discretionary power.” (internal
citations omitted)). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
2 Kentucky Revised Statutes.
3 Kentucky Rules of Criminal Procedure.
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principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581
(Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
It is undisputed Christensen violated the conditions of his release. Clear
and convincing evidence was presented at an adversarial hearing before the
trial court. It is also undisputed the trial court was acting within its discretion
in deciding to forfeit Christensen’s bond. The sole issue before us then is
whether the trial court abused its discretion when determining the amount of
bond which would be forfeited. We conclude it did not.
“There are no clear-cut rules defining what is and what is not
‘excessive.’” Clemons, 152 S.W.3d at 260. “When considering whether or not
justice requires the enforcement of a forfeiture, a court must look at several
factors, including: (1) the willfulness of the defendant’s breach of the bond, (2)
the cost, inconvenience and prejudice suffered by the government, and (3) any
explanation or mitigating factors.” United States v. Ciotti, 579 F.Supp. 276,
278 (W.D.Pa. 1984). Christensen’s conduct was serious and willful, subjecting
the bond to forfeiture. KRS 431.545; RCr 4.42. The money posted belonged to
Christensen, and he alone was responsible for continuing his course of
criminal conduct. The Commonwealth was required to further investigate
Christensen’s actions which potentially endangered additional minors and
worked an injury to the public interest. Christensen offered nothing in
mitigation related to his egregious violations of the terms of his bond. Applying
the abuse of discretion standard, we simply cannot say the trial court’s
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decision was in error. Although the amount of forfeiture was significant, it was
not inappropriate under the circumstances.
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,
JJ., concur. Thompson, J., concurs in result only.
COUNSEL FOR APPELLANT:
Chase Cox
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General
Courtney J. Hightower
Assistant Attorney General
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