The Kentucky Court of Appeals has upheld the conviction of Somerset man serving five years for recording video of a teen while showering back in 2016.
In a 15-page decision released Friday, Appellate Judge Kelly Thompson -- writing for a three-judge panel -- stated the April 2017 verdict against 39-year-old James Bradley Phelps was unanimously affirmed.
"We again have no difficulty in upholding the jury's verdict," Judge Thompson wrote. "Phelps admitted he used his cell phone to make a video recording of [the] victim while she was naked in the shower and then deleted the recording. The jury could reasonably infer that in doing so, Phelps recorded…without her consent and that the shower was a place where a reasonable person would believe that her genital or nipples would not be filmed."
A Pulaski County jury convicted Phelps of felony Promoting a Sexual Performance of a Minor, Tampering with Physical Evidence and misdemeanor Voyeurism in connection to the May 2016 incident when Phelps entered his bathroom while a relative through marriage, 16 at the time, was showering and shot video with his cell phone but said he deleted it before he actually viewed it.
At sentencing, the defense sought to have the verdict set aside -- arguing that there was no evidence that the video showed anything but the victim's face and that Phelps didn't direct the victim to do anything that would constitute pornography. At the time, Pulaski Circuit Judge David Tapp imposed the jury's recommended sentence: five years for Promoting a Sexual Performance of a Minor under 18, Tampering with Physical Evidence (one year concurrent) and Voyeurism (a misdemeanor for which the jury recommended six months concurrent).
On appeal, Frankfort-based attorney Roy A. Durham II made similar lack-of-evidence arguments on Phelps' behalf.
Assistant Commonwealth's Attorney David Dalton, who prosecuted the case, said he was gratified that the Kentucky Court of Appeals, just like the jury, ignored those arguments and found Phelps' behavior worthy of conviction.
"As a prosecutor, it is a relief that common sense carried the day," Dalton said. "In no world, is videotaping a minor female (or any child), in an intimate moment, appropriate. If we can't protect our children from this predatory conduct, we might as well give it up and start over. Behavior like this is why we build jails."
Dalton thanked the victim for her bravery in testifying and the Somerset Police Department - particularly Detective Larry Patterson - for their efforts. "Larry did a great job. He got to the truth of the matter," Dalton said.
The prosecutor also thanked Tom Bell and his team at the Attorney General's Office Cybercrime division for their assistance at trial. "Tom, when the software improved, took that phone and found more evidence. He is a true professional," Dalton said.
Eddy F. Montgomery, Commonwealth's Attorney for Pulaski, Lincoln and Rockcastle counties, thanked Dalton for his efforts.
"This was an unusual and novel case involving disturbing behavior," Montgomery stated. "David found a way to apply the 'sexual performance' statute to Phelps' conduct and put a strong case in front of the jury. Hopefully, this verdict will dissuade other people from making poor choices with their cell phones and their cameras."
The Court of Appeals decision can be found at: http://opinions.kycourts.net/coa/2017-CA-001362.pdf.