Adam Boone v. Commonwealth of Kentucky ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1067-MR
ADAM BOONE APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 20-CR-00102
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND K. THOMPSON, JUDGES.
GOODWINE, JUDGE: Adam Michael Boone (“Boone”) appeals from the August
30, 2021 judgment and sentence on verdict of the jury of the Kenton Circuit Court.
We affirm.
Boone was indicted by the Kenton County grand jury on one count of
unlawful use of electronic means to induce a minor to engage in sexual activity
(“UUEM”)1 and one count of sexual abuse in the first degree.2
On November 19, 2019, Boone believed he was conversing with C.C.,
a thirteen-year-old girl, via Facebook Messenger.3 In reality, C.C.’s father initiated
the conversation posing as his daughter. Throughout the conversation, Boone sent
multiple messages of a sexual nature. He requested to meet C.C. to engage in
sexual activities. He also requested she send him a video of herself. When C.C.’s
father asked him to send a video first, Boone sent a video recording showing a man
stroking his erect penis. C.C.’s father responded, “That ain’t you.” Boone then
initiated a video chat. C.C.’s father asked her to answer the call and when she did,
Boone first showed his face before moving to show his erect penis.4 The call then
ended.
At trial, the Commonwealth presented the testimony of five witnesses
including C.C. and her father. C.C. testified that she did not see the first video
recording Boone sent to her phone but did see him “rubbing” and “playing with”
his penis during the video chat. Boone did not testify or present any evidence on
his own behalf.
1
Kentucky Revised Statutes (“KRS”) 510.155(1), a Class D felony.
2
KRS 510.110(1)(c)3., a Class D felony.
3
Boone and C.C. had met previously because she was a friend of Boone’s girlfriend’s daughter.
4
Although C.C.’s father initiated contact with Boone, she was present during part of the
conversation and saw some of Boone’s messages.
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The jury was instructed on both UUEM and sexual abuse in the first
degree. The trial court rejected Boone’s request for the jury to be instructed on
criminal attempt for both offenses. The jury found Boone guilty on both counts
and recommended the maximum sentence. The trial court sentenced Boone to five
years’ imprisonment for each offense to be served consecutively. This appeal
followed.
On appeal, Boone argues the trial court should have instructed the jury
on attempted UUEM and sexual abuse in the first degree. We review a trial court’s
decision not to give an instruction for abuse of discretion. Harris v.
Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010) (citation omitted).
Boone was not entitled to have the jury instructed on attempt for
either offense. “A person is guilty of criminal attempt to commit a crime when,
acting with the kind of culpability otherwise required for commission of the crime,
he . . . [i]ntentionally engages in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be[.]” KRS 506.010(1)(a).
An instruction on attempt, like any lesser-included offense, is required only where
a juror could reasonably find the defendant is not guilty of the greater offense but
was guilty of the lesser one. Quist v. Commonwealth, 338 S.W.3d 778, 786 (Ky.
App. 2010) (citation omitted). A trial court may reject instructions not supported
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by the evidence. Hunt v. Commonwealth, 304 S.W.3d 15, 30 (Ky. 2009) (citation
omitted); see also Harris, 313 S.W.3d at 50 (citation omitted).
First, Boone argues he was entitled to the attempt instruction for
UUEM because he did not actually converse with C.C. but rather communicated
with her father. A person is guilty of UUEM where he
knowingly use[s] a communications system, including
computers, computer networks, computer bulletin boards,
cellular telephones, or any other electronic means, for the
purpose of procuring or promoting the use of a minor, or
a peace officer posing as a minor if the person believes
that the peace officer is a minor or is wanton or reckless
in that belief, for any activity in violation of KRS
510.040, 510.050, 510.060, 510.070, 510.080, 510.090,
510.110, 529.100 where that offense involves
commercial sexual activity, or 530.064(1)(a), or KRS
Chapter 531.
KRS 510.155(1).5 This Court has previously held “the identity of the person
receiving the communication is not the dispositive issue under KRS 510.155(1).”
Cayton v. Commonwealth, 580 S.W.3d 553, 556 (Ky. App. 2019) (citing Filzek v.
Commonwealth, 309 S.W.3d 790, 791 (Ky. App. 2009)). Instead, the question is
whether the defendant believed he was soliciting a minor for sexual activities. Id.Here, Boone did not know he was communicating with C.C.’s father
but believed he was sending sexually explicit messages to a minor and requested to
5
This version of KRS 510.155(1) was effective in 2019. The statute has since been amended
and the new version became effective on June 29, 2021.
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meet her for the purposes of engaging in sexual activities. Given the evidence in
the record, the trial court did not abuse its discretion by rejecting the attempt
instruction for UUEM. No juror could reasonably believe Boone was not guilty of
UUEM but was guilty of attempted UUEM.
Next, Boone argues he was entitled to an instruction on attempted
sexual abuse in the first degree because his poor internet connection during the
video chat prevented him from committing sexual abuse in the first degree. He
further argues a juror could reasonably believe he had only attempted to
masturbate during the video chat. A person is guilty of first degree sexual abuse
when, “[b]eing twenty-one (21) years old or more, he or she . . . [e]ngages in
masturbation while using the Internet, telephone, or other electronic
communication device while communicating with a minor who the person knows
is less than sixteen (16) years old, and the minor can see or hear the person
masturbate[.]” KRS 510.110(1)(c)3.
Here, C.C. testified she saw Boone rubbing and playing with his erect
penis during the video chat. The jury was also shown a recording of the chat.
Regardless of the strength of his internet connection or the length of the video chat,
evidence supports the jury’s conclusion that he completed the offense under KRS
510.110(1)(c)3. Given the evidence presented at trial, no juror could reasonably
believe Boone was not guilty of sexual abuse in the first degree but was guilty of
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attempt of the offense. Again, the trial court did not abuse its discretion in refusing
to instruct the jury on attempt.
Based on the foregoing, we affirm the judgment and sentence on
verdict of the jury of the Kenton Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
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