Released for Publication June 19, 2014.
[Copyrighted Material Omitted]
ON APPEAL FROM FULTON CIRCUIT COURT. HONORABLE TIMOTHY A. LANGFORD, JUDGE. NO. 11-CR-00064.
COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Micah Brandon Roberts, Assistant Attorney General, Office of the Attorney General, Frankfort, Kentucky.
All sitting. Minton, C.J.; Abramson, Keller, Scott and Venters, JJ., concur. Cunningham, J., concurs in result only by separate opinion.
Appellant, Richard Yates, appeals his convictions for first-degree rape and first-degree sexual abuse. He alleges three errors: (1) that his due process rights were violated when the trial court denied his motion for a directed verdict on the charge of first-degree rape; (2) that the trial court abused its discretion when it admitted testimony about the Appellant's computer password; and (3) that the trial court abused its discretion when it denied defense counsel's request to cross-examine the victim about a prior inconsistent statement. For the reasons set forth herein, the Court reverses Appellant's convictions and sentence.
" Sally"  was a fourteen year-old high school freshman in 2010. She lived with her mother, her two brothers, and her stepfather, the Appellant. Also, significantly, Sally was dating an eighteen-year old upperclassman, Austin.
At the time of the sexual assault, Sally's mother worked the night shift at a local retail store and was often out of the family home during overnight hours. One evening in November 2010, while her mother was at work, Sally told Appellant she was going to a local park with some friends. Once at the park, Sally and her friends met up with Austin, Sally's boyfriend. At trial, Sally testified that she spent between an hour to an hour and a half at the park before returning home.
It is unclear from the record how Appellant discovered Sally's relationship with Austin but several nights after her trip to the park, Appellant confronted Sally about her older boyfriend. Initially, Appellant told Sally that her mother would not approve of her relationship with an older boy, and threatened to tell her mother about the relationship. He then stated that if he told her mother about the relationship, her boyfriend would go to jail for being in a relationship with Sally because she was a minor. The confrontation went on for several hours and Appellant escalated his threats as the night went on--eventually, telling Sally that Austin would go to jail and be " hurt" by other inmates once they found out he had been with a minor. At some time during the confrontation, Appellant told Sally that if she would " do something sexual" with him, he would, in exchange, not tell her mother about her relationship with Austin.
At trial, Sally testified Appellant had repeated his unsavory offer several times during the evening. She estimated Appellant had talked to her about her relationship with Austin for approximately one to two hours, and that between one to three hours elapsed between the time Appellant made his offer and the time when the sexual assault occurred.
After Appellant made his offer, Sally thought about it for some time, and after growing concerned for her boyfriend decided to " do something sexual" with Appellant.
At trial, Sally testified that although she had said " yes" to having sex with Appellant, she had not been sure it was voluntary because she had only had sex with Appellant to protect her boyfriend. Indeed, at trial, she testified that she had refused sexual advances from Appellant on previous occasions, but testified this time had been different because she believed Appellant when he had said Austin would go to jail and get hurt because of their relationship. Sally testified that she felt forced to have sex with the Appellant to protect Austin, but that she did not believe that the Appellant, himself, would physically hurt her boyfriend.
The sexual assault occurred in Appellant's bedroom. After deciding to have sex with Appellant, Sally entered the Appellant's bedroom in the middle of the night, and had sex with him. At trial, Sally testified that Appellant grabbed some kind of bottle from a nightstand, put his hands on it, and then put his hands down her pants and touched her genital area. Sally stated that the Appellant told her, " It was going to feel good, but that she wouldn't like it." Appellant then positioned Sally so that she was bent over the end of the bed on her stomach with her feet on the floor. She testified that Appellant then took something out of a plastic bag between the mattress and box springs of his bed and inserted it into her vagina. Sally did not see what the item was at the time. Appellant then removed the item from Sally's vagina, flipped her on her back and put her legs on his shoulders, and had sexual intercourse with her. After the encounter was over, Appellant told Sally, " This was not going to happen again."
Sally testified that she told her mother and a friend about the sexual assault. Her friend ultimately believed Sally was telling the truth, but her mother did not. Some time thereafter, Sally moved out of the family home for a time, but eventually returned. Upon her return, Appellant and Sally began to argue regularly and Sally felt she couldn't stay at the home. In July 2011, Sally asked a friend's mother--Ginger Alexander--if she could stay with her on nights when Sally's mother was working. Alexander asked why she would make that request, and Sally told her about the sexual assault. Alexander encouraged Sally to report the incident to police, which she did. Local authorities took a statement from Sally and obtained a search warrant for the Appellant's residence. At the residence, local police recovered a sex toy in a plastic bag from between the mattress and box spring in Appellant's bedroom, several computers, as well as several other items.
Appellant was indicted on one count of first-degree rape, one count of first-degree sexual abuse, one count of unlawful transaction with a minor, and one count of being a persistent felony offender in the second degree. The case proceeded to trial on February 27, 2012, and the Appellant was convicted of one count of first-degree rape and one count of first-degree sexual abuse. He was sentenced to twenty-five years' imprisonment and now appeals his conviction and sentence as a matter of right pursuant to Section 110(2)(b) of the Kentucky Constitution.
A. Directed Verdict Issue
Appellant's first argument on appeal is that the Commonwealth failed to produce sufficient evidence of the element of " forcible compulsion" as required for his conviction under KRS 510.040(1)(a), and, thereby, the trial court committed reversible error by denying his motion for a directed verdict. The issue was not properly preserved for appeal, and thus analysis must proceed under the palpable error rule, Criminal Rule 10.26, which states that an unpreserved error may be noticed on appeal when the error is both palpable and affects the substantial rights of a party to such a degree that manifest injustice results from the error.
In a criminal case, the U.S. Constitution requires the government to prove every element of the charged offense beyond a reasonable doubt. Anderson v. Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002); see also KRS 500.070(1)). Failure by the government to do so violates an accused's right to Due Process. Id. (citing In re Winship, 397 U.S. at 364). After reviewing the record, this Court finds there was insufficient proof of the element of forcible compulsion, and to convict Appellant where there is such a failure of proof is a violation of his Due-Process rights and a manifest injustice under Criminal Rule 10.26. Accordingly, Appellant's conviction for first-degree rape must be reversed.
At the outset, the Court recognizes that the issues discussed in this case are difficult, and at times, controversial. Indeed, the factual circumstances of this case highlight the complexity and sensitivity of these issues and underscore their analytic difficulty.
A proper conviction for first-degree rape under KRS 510.040(1)(a) requires the Commonwealth to show that the accused engaged in sexual intercourse with another person without the person's consent " by forcible compulsion." KRS 510.040(1)(a); see also KRS 510.020(1) (stating lack of consent is an element of every sexual offense defined in KRS Chapter 510); KRS 510.020(2) (stating lack of consent can be proved " by forcible compulsion" ). " Forcible compulsion" is defined as " physical
force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under [KRS Chapter 510]." KRS 510.010(2).
As is evident from its definition, forcible compulsion may be shown in two broad ways: an act of physical force or a threat of physical force. Appellant, accordingly, makes a dual argument on appeal. First, he argues that the element of " forcible compulsion" was not met because the sexual intercourse was voluntary and any physical force exerted on the victim by Appellant was incidental to the voluntary sexual intercourse and therefore insufficient under the statute. The Commonwealth responds that Appellant's manipulation of Sally's body (i.e., positioning her on the bed and moving her legs) and the act of penetrating her vagina with his penis were sufficient " physical force" to satisfy the statute.
Second, Appellant contends his statements to the victim did not amount to a threat of physical force under the statute because he did not threaten to hurt the victim's boyfriend himself and that any threat of harm was not immediate enough to be a threat within the definitional scope of forcible compulsion. Again, the Commonwealth argues that because the boyfriend would impliedly be harmed without Sally's agreeing to sexual intercourse, the Appellant made a sufficient threat.
We will address each of Appellant's arguments separately. As such, our analysis into whether forcible compulsion was proven by sufficient evidence is largely segmented into two parts: (1) proof of " physical force," and (2) proof of a " threat of physical force." Before turning to those narrower issues, however, this Court must address an initial concern, namely, the statute's use of the word " by" in the phrase " by forcible compulsion."
1. By Forcible Compulsion
To understand the role and essential features of " forcible compulsion" in the context of sexual offenses, we must turn to KRS Chapter 510. At issue in this case is the offense first-degree rape as defined in KRS 510.040(1)(a). KRS 510.040(1)(a) provides that an individual commits first-degree rape when he " [engages] in sexual intercourse with another person by forcible compulsion." (Emphasis added.) From this definition, the Court recognizes an important distinction: an accused must engage in sexual intercourse " by" forcible compulsion. Forcible compulsion is evidence of lack of consent, which underlies all sexual offenses.
The word " by" as it is commonly used can signify that one action is the consequence of another or the means through which something is achieved. For example, if a person hurts his knee by falling down, it is understood that the injury to his knee occurred because he fell down, even though it was the stones on the ground that actually created the injury; the injury is the consequence of falling down. Or, using by the second way, a person could say that his knee was hurt by the stones on the ground, the stones being the means or direct cause of the injury. Either way, the use of the word " by" requires some sort of cause-effect relationship.
This understanding of " by" is vitally important in understanding how the phrase " by forcible compulsion" is used in Chapter 510 of the Kentucky Revised Statutes, specifically KRS 510.040(1)(a). If we insert this commonly understood definition of " by" into the language of KRS 510.040(1)(a), that statute can be read as stating an individual commits first-degree
rape when he " [engages] in sexual intercourse with another person [as a consequence of or by means of] forcible compulsion." Considering this reading of the statute, it is clear that forcible compulsion must be the means by which a defendant secures sexual intercourse with a victim for the conduct to qualify as first-degree rape. More precisely, considering the definition of forcible compulsion, the sexual intercourse must be the result of an act or threat of physical force done by the defendant . And, while every physical act employs some aspect of physical force in the scientific sense, not every physical act will be sufficient under the statute to constitute rape. Key to understanding lack of consent due to forcible compulsion is the fact that the sexual contact is compelled by force, either as a consequence of the force (threat or indirect cause of the contact) or directly by use of force in the contact.
And, as discussed above, forcible compulsion, which must be the means of effecting the sexual contact, can be accomplished in two ways: by ...