Cuthbertson v. Commonwealth: Clarifying “Forcible Compulsion” and the Limits of Reading Surplusage in Indictments

Introduction

This commentary examines the Kentucky Supreme Court’s unpublished memorandum opinion in Dusty Alan Cuthbertson v. Commonwealth of Kentucky, rendered August 14 2025. The Appellant, Dusty Cuthbertson, was convicted of multiple counts of first-degree sodomy, first-degree incest, and first-degree sexual abuse against his adopted son, A.C. He received a seventy-year sentence. On appeal he raised three principal issues:

Whether the trial court’s decision to read to the venire and jury an indictment that referenced dismissed counts (and alleged abuse on “at least thirty occasions”) constituted reversible error.
Whether the Commonwealth produced sufficient evidence of the statutory element of “forcible compulsion.”
Whether the incest jury instructions were fatally defective for omitting the element that the defendant be three or more years older than the victim.

The Court affirmed on all grounds, providing fresh guidance on the treatment of surplusage in indictments, the breadth of “forcible compulsion,” and the non-retroactivity of statutory amendments to incest offences.

Summary of the Judgment

Indictment Reading: The Court deemed it error to read dismissed counts to the jury but held the error was not palpable because the trial court simply noted their dismissal without detailing their substance.
“Thirty Occasions” Language: This phrasing was unnecessary surplusage. Because the Commonwealth never pursued a continuous-course-of-conduct theory under KRS 501.100, the allegation did not have to be proven, yet A.C.’s testimony nevertheless met it.
Forcible Compulsion: A.C.’s fear of the defendant repeating sexual abuse satisfied KRS 510.010(2), which expressly includes fear of “any offense under this chapter.”
Jury Instructions on Incest: The 2023 statutory amendment requiring a three-year age differential does not apply retroactively; therefore its omission was not error.
Outcome: All convictions and the seventy-year sentence were affirmed.

Analysis

Precedents Cited and Their Influence

Lewis v. Commonwealth, 642 S.W.3d 640 (Ky. 2022) – Confirmed that reading an indictment is no longer mandatory under RCr 9.42 and can constitute error when prejudicial matter is disclosed.
United States v. Sivils, 960 F.2d 587 (6th Cir. 1992) – Held that reference to dismissed counts during voir dire is error; the Kentucky Court echoed but distinguished on prejudice.
Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) & Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023) – Articulated the “palpable error” threshold: an error so fundamental it “cries out for relief.”
Peyton v. Commonwealth, 157 S.W.2d 106 (Ky. 1941) – Described unproven language as “surplusage” that will not invalidate an otherwise sufficient indictment.
Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014) – Interpreted “by forcible compulsion” as the causal means for sexual offenses.
Goncalves v. Commonwealth, 404 S.W.3d 180 (Ky. 2013) – Emphasized that witness inconsistencies go to weight and credibility, not sufficiency.
Statutory guidance: KRS 501.100 (continuous course of conduct), KRS 510.010 (forcible compulsion), KRS 530.020 (incest), as amended in 2023.

Legal Reasoning

Reading the Indictment: The Court accepted that referencing dismissed counts is error under Lewis and Sivils. Yet, because the trial court simultaneously told jurors those counts were dismissed and gave no details, prejudice was minimal. Under palpable-error review (RCr 10.26), the error did not “threaten the integrity of the judicial process.”
Surplusage (“at least 30 occasions”): The Commonwealth’s drafting hinted at a continuous-conduct charge but never invoked KRS 501.100’s special pleading and unanimity safeguards. Accordingly, the surplus allegation could be ignored. Moreover, testimony described abuse that did occur weekly or more, so even if the number mattered, the record supported it.
Forcible Compulsion: The statutory definition is broad, covering implied threats that place the victim in fear of “any offense under this chapter.” A.C. feared precisely the offenses already inflicted (sodomy). That fear satisfied the element. The Court rejected conceptual arguments that one cannot be compelled by fear of the same act.
Incest Instructions: Because the age-difference requirement was only added in 2023, it was properly omitted for conduct spanning 2021-2022. Under KRS 446.110, statutes operate prospectively unless the legislature clearly states otherwise.

Impact of the Judgment

Although designated “Not to be Published,” the opinion offers valuable practical guidance:

Trial Practice — Indictment Readings: Judges who continue the tradition of reading indictments must excise dismissed counts or potentially prejudicial surplusage. Failure to do so is error, though reversal will depend on demonstrable prejudice.
Pleading Strategy: Prosecutors contemplating “continuous course of conduct” charges must comply strictly with KRS 501.100 or omit numeric allegations entirely. Careless insertion of “30 occasions” adds no value and invites appellate scrutiny.
Substantive Law — Forcible Compulsion: The case reaffirms that intimidation or psychological dominance, not just threats of bodily harm, can satisfy “forcible compulsion” when the victim fears a sexual offense.
Retroactivity of Offense Elements: Statutory amendments adding new elements (e.g., age differentials in incest) will not be read into prior conduct absent clear retroactive intent.

Complex Concepts Simplified

Palpable Error (RCr 10.26): An unpreserved error serious enough that it would create a “manifest injustice” if left uncorrected. Think of it as an emergency exit—courts use it sparingly.
Surplusage: Extraneous words in an indictment that exceed what must be proven. Surplusage does not invalidate a charge and need not be proven unless it is essential to the offense.
Continuous Course of Conduct (KRS 501.100): A procedural tool allowing prosecutors to charge multiple identical acts against a single victim within one count, provided they specifically plead it and the jury unanimously finds two or more acts.
Forcible Compulsion: Not limited to guns or fists; it includes implied threats that create fear of immediate sexual offences or other listed harms.
Combination Instructions: Jury instructions that present two alternative factual paths (e.g., victim under 18 or forcible compulsion). They are permissible if evidence supports each path.

Conclusion

The Kentucky Supreme Court’s decision in Cuthbertson underscores three doctrinal points:

The mere mention of dismissed counts is erroneous, but reversal requires a showing of real prejudice.
“Forcible compulsion” is interpreted broadly; fear of renewed sexual assault falls squarely within the statute.
New statutory elements do not retroactively attach to pre-amendment conduct.

For trial courts, the opinion serves as a cautionary tale: avoid reading superfluous or prejudicial portions of indictments. For prosecutors, it highlights the need for precise charging decisions and strict adherence to continuous-conduct statutes when multiple acts are alleged. And for defense counsel, it delineates the evidentiary threshold for “forcible compulsion” and signals that retroactivity arguments will rarely succeed absent legislative clarity.

While unpublished and non-precedential, Cuthbertson will likely be cited as persuasive authority where no published opinion addresses identical issues, particularly regarding indictment readings and the scope of forcible compulsion.