# Harp v. Commonwealth

> Kentucky Supreme Court · October 27, 2008 · 266 S.W.3d 813

URL: https://www.frixlaw.com/law-library/cases/9883831

## Case

- **Full name:** Wilbert HARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** October 27, 2008
- **Citations:** 266 S.W.3d 813; 2008 Ky. LEXIS 323; 2008 WL 4691847
- **Precedential status:** Published
- **Opinion:** Concurring in part by Scott
- **Judges:** Minton, Abramson, Cunningham, Noble, Venters, Schroder, Scott
- **Cited by:** 136 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883831

## How later opinions describe it (automated extraction)

- holding that even assumirig indirect bolstering/vouching occurred and where the child victim's mother may have not believed the abuse occurred, testimony that does not directly speak to the child victim's character for tnithfulness, but rather referenced that many cases of sex…
- holding, based on the Court's "definitive[]" holding in Noel, that "any prejudice suffered by [the defendant] was [in]sufficient to overcome the general rule regarding admissibility of similar acts perpetrated against the same victim"
- holding that "the law requires specific identifiers to be placed in each count in a case involving multiple counts of the same offense."
- stating in dicta that it would reverse a conviction based on an instruction that combined multiple criminal acts
- finding preserved error is not harmless where jury instructions failed to distinguish factually between multiple counts of the same crime

## Opinion text

Opinion by
Justice SCOTT
Concurring in part and dissenting in Part.
Although I concur with the majority’s opinion on the other issues, I must dissent on issue IIIA as the Commonwealth clearly pointed out to the jury the separate items of evidence supporting each of the seven charges; thus, the error was clearly harmless in this instance. I concede, however, that I, too, am displeased at the frequency with which our trial courts fail to differentiate multiple instructions from each other. This displeasure, however, is not sufficient to obviate the “harmless error” rule in instances like these; where there is no question that differentiating factors existed in the evidence and were pointed out to the jury in closing by the Commonwealth.
Thus, the majority’s reliance on Dixon v. Commonwealth, 263 S.W.3d 583 (Ky.2008) to overrule the harmless error analysis in Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky.2008), 1 is simply inappropriate. As the court in Dixon acknowledged, “the issue [therein was] not whether the instructions were erroneous” — even though they did fail to differentiate which of the two “hammer blows” supported the separate offenses. Dixon, 263 S.W.3d at 592-93 (Ky.2008). Notably, Dixon only dealt with double jeopardy issues and affirmed the conviction discussed therein.
Moreover, the comment that “an attorney’s arguments do not constitute evidence,” has never been questioned. See, e.g., 75A Am.Jur.2d Trial § 443 (2008). Its purpose is to collate the evidence with the instructions, which is what occurred here. Thus, the commands of RCr 9.24, that “[n]o error ... in anything done or omitted by the court ... is ground for ... setting aside a verdict ... unless it appears to the court that the denial of such relief would be inconsistent with substantial justice,” should be followed.
Here, as in Bell , the majority acknowledges that, “[n]o doubt able counsel could — and in this case, did attempt to ‘flesh out’ the generic sexual abuse instructions in closing argument by telling the jury which specific act of sexual abuse was covered by which specific count of the charges.” These were reminders by counsel as to what the evidence was — not evidence itself. Now, by unequivocally holding “that a failure to include proper identifying characteristics in jury instructions is reversible error” and overruling Bell , the majority effectively prohibits the application of harmless error in these instances.
It is for this reason I respectively dissent on this issue.
. The majority opinion refers to the harmless error review in Bell as dicta, which it was clearly not. Dicta is a statement in an opinion which is unnecessary to the ultimate determination. Williams v. West, 258 S.W.2d 468, 471 (Ky.1953). The analysis referenced in Bell rendered the error harmless. Bell, 245 S.W.3d at 744 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883831. Public record. Not legal advice.