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Boone v. Commonwealth

Court of Appeals of Kentucky

October 18, 2013



BRIEFS FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky.

BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky.




Appellant Phillip Boone appeals the Mason Circuit Court's July 11, 2011 Judgment and Sentence by which he was convicted of first-degree sexual abuse and sentenced to two years' imprisonment. On appeal, Boone raises numerous trial issues which he claims resulted in error and mandate a new trial. Following a careful review, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

I. Facts and Procedure

On October 17, 2009, Boone's fifteen-year-old victim spent the night at the home of her friend. The victim's mother approved the overnight stay with the friend's mother. The victim's mother requested that her daughter not be permitted to leave the house with her friend unsupervised; the friend's mother acknowledged that the victim's mother wanted her daughter to be safe while staying the night at her friend's home. Boone, the friend's mother's fiancé, also lived in the residence. Boone had resided there since approximately October 2007.[1]

On the evening of October 17th, the victim, the friend, the friend's mother, and Boone watched movies in the living room. Boone and the friend's mother sat on the couch; the victim and her friend lay on a mattress on the floor directly in front of the television. A coffee table separated the couch from the mattress.

After the first movie ended, the victim's friend announced she had a headache; she took medication, retired to her bedroom, and went to sleep. The friend's mother started a second movie. However, she quickly fell asleep on the couch.

According to testimony from the victim at trial, during the second movie, Boone, who was not wearing shoes, touched her with his foot. Boone then leaned toward her as if he was about to kiss her; she backed away. Boone apologized and stated "it wasn't the way it looked." A short time later, Boone asked the victim to come into the kitchen. She complied. There, Boone grabbed her, "stuck his tongue down [her] throat, " and squeezed her breast causing pain. She pushed Boone away. She testified that she interpreted Boone's tense body language as an expression of anger. Boone withdrew to his bedroom, and the victim returned to the living room.

She then sent a text message to her mother: "I am scared Mommy." She also woke up her friend and described the incident with Boone. The victim's friend testified that the victim was crying when she told the story. The victim and her friend talked for fifteen to twenty minutes, and ultimately called the friend's neighbor, who the victim's friend described as a "second mom." After relating the evening's events, the neighbor told the victim's friend to wake up her mother, and told the victim to call her mother. The girls complied.

Boone testified in his defense and denied touching the victim. Boone explained he entered the kitchen once during the second movie to get a drink, but said the victim did not accompany him there. According to Boone, after the second movie ended, the victim declared she did not want to watch another. Boone turned off the DVD player, kissed the victim's friend's mother on the forehead, and went to bed. Boone testified he drank two or three beers, but was not drunk.

After speaking to the victim, the victim's mother called the police. Police Officer Justine Merrill accompanied the victim's mother to the residence. The victim, her friend, and her friend's mother were awake when the police arrived; Boone was asleep, but was later wakened. Officer Merrill described the victim and her friend as upset, stressed, and crying. While speaking with Boone, Officer Merrill smelled alcohol; Officer Merrill testified Boone acknowledged he had been drinking. Officer Merrill subsequently charged Boone with third-degree sexual abuse which was later amended to first-degree sexual abuse.

A jury found Boone guilty of first-degree sexual abuse and sentenced him to two years' imprisonment pursuant to a judgment and sentence order entered July 11, 2011. From that order, Boone appeals.

As additional facts become relevant, they will be discussed.

II. Issues on Appeal

Before this Court, Boone raises these four claims of error: (1) the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence that Boone was a person in a position of authority or position of special trust over the victim; (2) his right to an unanimous verdict was violated when the circuit court issued jury instructions on theories unsupported by the evidence; (3) the circuit court failed to instruct the jury on two lesser-included offenses; and (4) the circuit court erroneously ordered Boone, an indigent person, to pay court costs.

III. Standard of Review

A variety of review standards apply to the issues raised. We will set out the applicable review standard within the framework of our analysis.

IV. Analysis

A. Directed Verdict

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