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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED : NOVEMBER 18, 2010 N ;UB41S

"Oixprrutr C~Vurf of
WILLIAM HELM

2008-SC-000716-MR

rutf BAT L~,A Ilhew ~;ck s
APPELLANT t,~-y-ta

ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE JANET P. COLEMAN, JUDGE NO . 06-CR-00602

COMMONWEALTH OF KENTUCKY

APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART, REVERSING IN PART, AND REMANDING The charges in this case arose from Appellant William Helm's relationship with two sisters, T.C. and M.C., beginning when each girl was approximately twelve years ,old. The evidence established that Helm was friends with the girls' mother and eventually became close with the entire family, helping them find places to live on several occasions . Helm testified that he first had a sexual relationship with T. C. , the older of the two sisters, and then later had a similar sexual relationship with M.C. after his relationship with T.C . ended. T.C . and M.C. described numerous instances of sexual intercourse, sodomy, and other sexual contact with Helm.

In an interview with Detective Jody Ennis1 of the Radcliff Police Department, Helm admitted to having a sexual relationship with both girls . Helm testified at trial against the advice of counsel and candidly described details of these relationships . However, Helm denied using force, and stated that he waited to have sexual relations with each girl until she was twelve years of age. Helm did admit to engaging in other sexual contact with the T.C. prior to the age of twelve, including kissing and fondling. Helm was charged with eight counts of first-degree rape and three counts of first-degree sodomy. Apparently believing Helm that he waited until each girl was twelve years old before engaging in sexual contact,2 the jury acquitted him of all 11 primary charges, but convicted him of a number of lesserincluded offenses: five counts of second-degree rape, two counts of seconddegree sodomy, and two counts of first-degree sexual abuse . 3 The jury fully acquitted Helm of two counts related to M .C. Helm agreed to concurrent sentences totaling 10 years for all crimes related to each victim, with each 10year sentence to run consecutively for a total of 20 years' imprisonment. He 1 There is a discrepancy as to the proper spelling of Detective Ennis's name. The original Uniform Citations issued in this case, and signed by Detective Ennis, appear to be signed "Ennis." We have therefore adopted that spelling throughout . 2 Engaging in sexual intercourse with a person under twelve years of age constitutes first-degree rape, KRS 510.040(1)(b)2, while engaging in sexual intercourse (in the absence of physical compulsion) with a person twelve or thirteen years of age constitutes second-degree rape if the defendant is eighteen years of age or older. KRS 510 The same elements of age and compulsion apply to first- and . .050(1)(a) second-degree sodomy. See KRS 515.070 & 515 .080. 3 A clerical error in the court's order led to Helm being convicted of second-degree rape on one count, when the jury in fact found him guilty of first-degree sexual abuse . We have listed Helm's convictions as found by the jury, and, as will be discussed further, we remand for correction of the error.

therefore appeals to this Court as a matter of right . 4 We now affirm Helm's convictions, but remand for a new penalty phase to correct two errors in Helm's sentence. I. The Trial Court Did Not Err In Finding Helm Competent To Stand Trial Helm first argues that the trial court erred in finding him competent to stand trial. Helm's attorneys raised the issue of competency a number of times. On May 19, 2007, Helm, through counsel, moved for a competency evaluation. One of Helm's attorneys stated that they (his attorneys) had had
difficulty communicating trial procedure and communicating with Helm on a

level that would allow them to defend him . The trial court ordered a competency evaluation, which Kentucky Correctional and Psychiatric Center (KCPC) referred to J . Robert Noonan, Ph. D. Dr. Noonan interviewed Helm for several hours in the Hardin County Jail. The court conducted a competency hearing on December 4, 2007, at which Dr . Noonan was the only witness . Dr. Noonan's uncontroverted testimony was that Helm was competent to stand trial, and Helm did not seriously question this conclusion. The trial court therefore found Helm competent to stand trial. At a pretrial hearing on May 21, 2008, Helm's attorneys again raised the issue of competency. They stated that it appeared to them that Helm's competency had deteriorated since Dr. Noonan's evaluation. Their primary concern was that Helm did not seem to comprehend that he had done anything wrong, nor the serious nature of the charges against him. The trial court 4 KY.
CONST.

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