Released for Publication April 10, 2014
ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE. NO. 11-CI-00560.
COUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky; James Hays Lawson, Assistant Attorney General.
Darryl A. Galloway, Jr. (Galloway) appeals from a judgment of the Warren Circuit Court convicting him of two counts of rape in the first degree, sodomy in the first degree, and assault in the fourth degree, third offense, and sentencing him to forty-five years' imprisonment. Galloway appeals as a matter of right from the resulting judgment. Ky. Const. § 110(2)(b). For the foregoing reasons, we affirm in part, reverse in part, vacate in part, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND.
The following facts are not in dispute. In 2011, Galloway and Lisa Sexton (Sexton) began living together. Galloway worked at Sun Products, and in June 2011, Galloway helped Sexton get a job there. On Sexton's first day of work, Galloway apparently became jealous and angry during Sexton's shift. After leaving work together, Galloway backhanded Sexton causing her nose and the left side of her face to swell and bruise. Additionally, there was a struggle in the car between Sexton and Galloway. Sexton's necklace and a car vent were broken, and a footprint was made on a window in the vehicle.
The following facts regarding what occurred thereafter are disputed. Galloway continued to hit Sexton while he was driving. At some point, Galloway told Sexton that he was going to take her somewhere where no one could hear her scream or help her. According to Sexton, Galloway drove her to a secluded spot. Galloway then got out of the car, walked around to the passenger side where Sexton was sitting, and forced Sexton to perform oral sex on him. Sexton further testified that Galloway then threw the car seats for her children out of the backseat of the car, grabbed her by the neck, threw her in the backseat, and raped her. On the way back to their apartment, Galloway stopped at a gas station. While at the gas station, Galloway pulled out a butcher knife from his pants and told Sexton he would kill her and her kids if she moved.
When they returned to their apartment, Galloway told Sexton that he was going to get her help if she would say she was robbed. Sexton testified that Galloway held the knife as they walked into their apartment. Once inside, Galloway turned over the television to make it look like Sexton had been robbed. Galloway made Sexton bathe and then raped her again in their bedroom on a bare mattress. Afterwards, he grabbed a knife and stabbed the mattress around Sexton while laughing and calling her names. Sexton testified
that Galloway later tossed his phone to her and told her to call for medical assistance. Sexton told the 911 operator she had been robbed and needed help. Galloway then drove Sexton to the hospital and waited for her to be examined.
Detective Michael Myrick (Detective Myrick) testified that he interviewed Galloway in a quiet room of the hospital. The Commonwealth played the recording of the interview during its case-in-chief at trial. In the interview, Galloway stated that Sexton had been robbed, and that when he came home, Sexton was crying and her purse strap was torn. Galloway denied assaulting Sexton numerous times throughout the interview.
In this case, the trial was trifurcated. During the first phase, the jury convicted Galloway of two counts of first-degree rape, first-degree sodomy, and fourth-degree assault. The jury acquitted Galloway of unlawful imprisonment. During the second phase, the jury convicted Galloway of fourth-degree assault, third offense based on two prior convictions of fourth-degree assault. During the third phase, the penalty phase, the jury returned with a sentence of twenty years' imprisonment for each first-degree rape conviction, to run consecutively; twenty years' imprisonment for the first-degree sodomy conviction, to run concurrently; and five years' imprisonment for the fourth-degree assault, third offense, to run consecutively, for a total of forty-five years' imprisonment. Consistent with the jury's recommendation, the trial court sentenced Galloway to forty-five years' imprisonment. This appeal followed.
Additional facts are set forth as necessary below.
A. Sodomy Charge.
Galloway argues that the trial court erred in denying his motion for directed verdict as to the sodomy charge. We disagree.
In order to overcome a motion for a directed verdict, the Commonwealth must present " more than a mere scintilla of evidence." Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991). When ruling on a directed verdict motion, " the trial court must assume that the evidence for the Commonwealth is true," and must draw all fair and reasonable inferences in the Commonwealth's favor. On appeal, we will reverse a trial court's denial of a directed verdict only if, " under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt ...." Id. at 187.
KRS 510.070(1)(a) states that, " A person is guilty of sodomy in the first degree when . . . [h]e engages in deviate sexual intercourse with another person by forcible compulsion[.]" As set forth in KRS 510.010(1), " '[d]eviate sexual intercourse' means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another[.]"
At trial, Sexton testified that Galloway forced her to perform oral sex on him. Galloway forced her head and mouth down on his penis. Sexton further testified that because she could not open her mouth due to her swollen jaw, Galloway's penis did not go past her lips and teeth. Galloway argues that, because his penis did not go farther than Sexton's lips and teeth, there was no evidence that he engaged in " deviate sexual intercourse." We disagree. Lips and teeth are part of " the mouth." Therefore, Sexton's testimony was sufficient evidence that there was an " act of sexual gratification involving the sex ...