Background
A Kentucky jury convicted Anthony Armato of first-degree sodomy and first-degree sexual abuse involving A.G., who was 13 when the conduct occurred. A.G. testified that Armato forced her to perform oral sex three separate times during one night, with periods of sleep between the acts. Letters and Snapchat messages reflecting Armato’s romantic and sexual interest in A.G. corroborated portions of her account.
Armato received a 20-year prison sentence and appealed as a matter of right. He argued that the first-degree-sodomy instruction denied him a unanimous verdict because it did not identify which of the three acts supported the single sodomy charge. He also challenged the trial court’s refusal to give a missing-evidence instruction concerning TextNow messages that investigators did not recover.
The Court’s Holding
The Kentucky Supreme Court held that the sodomy instruction created a unanimous-verdict violation. Because the three acts were separated by cognizable lapses during which Armato could have reflected and formed a new intent, they were distinct criminal acts rather than one continuous course of conduct. The general verdict therefore did not establish that every juror agreed on the same act.
Because Armato had not preserved the instructional issue, however, he was entitled to relief only for palpable error. The Court found no manifest injustice given the overwhelming evidence, including A.G.’s similar account of each occurrence and corroborating letters, messages, and witness testimony. It also upheld the denial of a missing-evidence instruction because Armato conceded that the Commonwealth had not acted in bad faith, and nothing indicated that the unrecovered TextNow messages were exculpatory. The Court declined to expand or overrule Kentucky’s existing missing-evidence precedent.
Key Takeaways
- A single instruction encompassing multiple distinct criminal acts can violate Kentucky’s jury-unanimity requirement when it does not identify the act supporting conviction.
- An unpreserved unanimity violation does not automatically require reversal; the defendant must satisfy palpable-error review by showing manifest injustice.
- A missing-evidence instruction was unwarranted absent bad faith by the Commonwealth and an indication that the unavailable evidence was potentially exculpatory.
Why It Matters
The decision underscores the need for Kentucky trial courts and prosecutors to tailor instructions to a specific criminal act when the proof establishes multiple chargeable incidents but the Commonwealth submits only one count. It also confirms that even a constitutional unanimity violation may be harmless under Kentucky’s demanding palpable-error standard when the issue was not preserved and the evidence is overwhelming.
The opinion is designated “Not to Be Published” under Kentucky RAP 40(D) and is not binding precedent, though a final unpublished Kentucky appellate opinion rendered after January 1, 2003, may be cited for consideration under RAP 41 when no published opinion adequately addresses the point of law.