LOUISVILLE, Ky. (WDRB) – The Kentucky Court of Appeals on Friday overturned the conviction of a New Albany man who tried to sexually entice a female teenager, ruling that a judge erred in part by letting jurors see a picture of the man’s erect penis.
Dale Thomas Hammond, 63, was convicted in March 2017 on a charge of unlawful use of electronic means to induce a minor to engage in sexual activities for sending lewd texts, emails and a photo of his penis to whom he thought was a 15-year-old girl who lived in Kentucky. He was sentenced to one year behind bars.
In his communications, Hammond described sexual acts he wanted to perform on the teen. But the 15-year-old was actually a law enforcement officer.
Police said Hammond traveled from his home in New Albany to a location in Kentucky, planning to meet the fictitious juvenile and bring her to his Indiana home. When he arrived, he was arrested.
During the trial, the jury was shown an enlarged version of a photograph of Hammond’s penis, despite an objection from his attorney.
The Kentucky Court of Appeals ruled unanimously that Jefferson Circuit Court Judge Olu Stevens' decision to allow jurors to see the photo was improper, concluding it could have a "deleterious effect on a jury and be unfairly prejudicial as it could arouse the jury's sense of horror, provoke its instinct to punish, or base its decision on something other than the established prepositions in the case."
While the photo was relevant to the case, the appeals court ruled, gruesome or graphic photos, including those in murder cases, are often not admissible at trial because of the emotional effect it can have on juries.
Instead, according to the ruling, Hammond had already admitted to sending the picture and the text messages discussing sexual acts, all of which could be described to the jury.
"The photograph showed an erect penis, much like any other, and there was no reason" the investigator "could not adequately describe what was depicted in the photograph."
In other words, the value of showing the picture was fairly low compared with how it would prejudice the jury against Hammond, the court ruled.
In addition, the appeals court ruled Stevens erred in not allowing Hammond to have an expert testify that Hammond knew he wasn’t really communicating with a teen but was "engaging in role play with an adult who was role playing."
Stevens ruled that because the expert was told Hammond's defense before he began working on the case, his opinion would not help Hammond.
The case has been sent back to circuit court. Jeff Cooke, spokesman for the Jefferson Commonwealth's Attorney’s Office, said prosecutors will review the decision and likely take Hammond to trial again.
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