Sotoy A. MINTER, Appellant
COMMONWEALTH of Kentucky, Appellee.
[Copyrighted Material Omitted]
Julia Karol Pearson, Assistant Public Advocate, Department of Public Advocacy, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, James Hays Lawson, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Counsel for Appellee.
Appellant, Sotoy J. Minter, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Madison Circuit Court convicting him of first-degree sodomy and first-degree burglary, enhanced by the status offense of persistent felony offender (PFO) in the second-degree. For these offenses, Appellant was sentenced to thirty-five years' imprisonment.
On appeal Appellant raises the following arguments: (1) the trial court erred by denying his motion for a directed verdict on the burglary charge because the Commonwealth failed to prove the statutory element of criminal intent; (2) the trial court improperly applied KRE 412 to prohibit admission of evidence of the victim's sexual history; and (3) the trial court erred in allowing the Commonwealth to proceed to trial on the PFO charge. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
According to evidence presented at trial, Appellant attended a party at an apartment next door to the apartment of Larry Griffin and his girlfriend, Beth, who were also attending the party. Appellant, Larry,
and many others attending the party became intoxicated. Because of his intoxication, Larry decided to leave, so Beth asked Appellant to help her get Larry back to their apartment. Upon arriving at his apartment, Larry fell asleep and Beth returned to the party. Larry testified that the next thing he remembered was waking up with Appellant on top of him, holding him down by the shoulders. Larry testified that he was resistant and repeatedly asked Appellant to leave, but that Appellant was too strong and ultimately overpowered him, forcibly imposing upon him an act of anal intercourse. After the incident, Larry, bleeding from his rectum and in pain, contacted police and was taken to the emergency room by ambulance, where a rape kit examination was performed. DNA results from an anal swab taken from Larry were a positive match for Appellant.
Some seventeen months after the incident, Appellant was indicted and charged with first-degree sodomy, first-degree burglary, and assault in the fourth-degree. Only a few months of the delay can be attributed to the DNA testing. Trial was scheduled for six months later, twenty-three months' after the event. Just one month before the first scheduled trial date, the Commonwealth procured a superseding indictment charging Appellant with the same three offenses, but adding a fourth count charging Appellant with being a persistent felony offender in the second-degree. Appellant moved to dismiss the additional count or to exclude it from the scheduled trial. The trial court denied the motion. The case proceeded to trial in February 2012, some twenty-five months after the alleged crimes occurred.
At trial, Appellant disputed Larry's version of the incident. Appellant insisted that the sexual encounter was entirely consensual. He claimed that after Beth returned to the party, Larry invited him into the apartment and invited Appellant's sexual advances. Appellant testified that Larry did not resist, but was instead a willing participant in the encounter.
At the conclusion of the trial, the jury returned a verdict convicting Appellant as set forth above. The trial court entered final judgment imposing the sentence as recommended by ...