APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANN BAILEY
SMITH, JUDGE NO. 14-CR-002203
COUNSEL FOR APPELLANT: Julia Karol Pearson Assistant Public
Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Leilani K.M. Martin Assistant Attorney General
Roger Ward appeals as a matter of right from the Jefferson
Circuit Court judgment convicting him of first-degree sodomy,
possession of a handgun by a convicted felon, and being a
persistent felony offender (PFO) in the first degree. Ward
was sentenced to twenty-five years for sodomy and fifteen
years for possession of a handgun, with the sentences running
consecutively for a total sentence of forty years. On appeal,
Ward raises several evidentiary and procedural issues.
Finding no error, we affirm the trial court.
AND PROCEDURAL HISTORY
trial, both Ward and the seventeen-year-old victim, S.R.,
testified about the events that transpired and provided
varying accounts of what happened.
early morning hours of August 18, 2014, Ward was driving
alone in downtown Louisville and saw S.R. by a bus stop. S.R.
testified that Ward stopped her, while he stated that S.R.
waved to him. Ward offered her a ride, and she informed him
that she did not have anywhere to go, but he told her they
could ride around. The two drove around for a little while.
According to S.R., Ward asked her if she would perform oral
sex on him for fifteen dollars, and she declined. Ward
alleged that S.R. brought up the topic of oral sex and
directed him to a church parking lot. According to S.R., Ward
told her that he lived near the church.
approximately 3:57 a.m., someone who identified himself only
as "Richard" called 911. Richard told the 911
operator that he saw a car sitting in a church parking lot
for fifteen minutes with its lights off. He lived across the
street from the parking lot and provided a general
description of the vehicle he was observing. He stated,
"I don't know who it is, they got their lights off .
. . they do turn a lot of tricks in this lot so that might be
what it is."
testified that after they parked, they talked for a few
minutes and then, suddenly, Ward had his pants down and she
saw a gun. She stated that he put the gun to her cheek and
her phone fell from her lap to the floorboard. He threatened
to "put a hot one" in her and push her out of the
car. S.R. understood this to mean that he was going to shoot
her if she did not comply. S.R. started to perform oral sex
on Ward, and within five minutes, she noticed the red and
blue lights of the police car and sat up.
testified to a different sequence of events, denying that he
forced S.R. to perform oral sex. He stated that while he was
riding around collecting salvage to sell to the junkyard, he
noticed S.R. waving to him. He asked if she needed a ride,
and she said "yes." He stated that a conversation
about oral sex came about at some point after they were
driving around for twenty to thirty minutes. He stated that
S.R. directed him to the church parking lot. Ward denied
telling S.R. that he lived near the church but acknowledged
that his uncle lived nearby. Ward testified that S.R. wanted
a place to shower and sleep in exchange for sex, and that the
oral sex was consensual.
trial, Ward claimed that he tried to start the car and drive
away afterwards but could not get his foot to press down on
the pedal because something was in the way. Due to a surgery,
he was wearing a medical boot at the time and needed a cane
to walk. He stated that S.R. moved his leg over and went down
to the floorboard to move whatever was keeping his foot from
pressing the pedal, then sat back up when the police arrived.
Ward testified that he did not know where S.R. placed the
item once she moved it.
the officers testified that he believed he was dispatched to
the parking lot to investigate possible prostitution. When
the officers arrived, they asked for identification and for
Ward and S.R. to exit the vehicle. After running a quick
search based on the information provided, the officer
immediately learned that Ward was a convicted sex offender.
The officer called a detective with the sex crimes unit to
see whether S.R., who was seventeen years old at the time,
could be in Ward's presence given his sex offender
status. The detective stated that without more information,
she could not say whether a crime had occurred.
one officer went to perform the identification search, S.R.
and Ward were separated, with S.R. standing toward the rear
of the vehicle with the other officer. S.R. disclosed to that
officer that Ward forced her to perform an act. The officers
then contacted the sex crimes detective again, and she
arrived at the scene shortly thereafter. The detective
interviewed S.R. and digitally recorded her statement and
also conferred with the officers to make sure S.R.'s
statement was similar to what she initially disclosed. S.R.
told the detective that she had engaged in prostitution
previously, but she was not prostituting herself that night
taking S.R.'s statement, the detective arrested Ward. She
searched him, then placed him in handcuffs in the back of the
police car, while she searched his vehicle to locate the
firearm S.R. claimed Ward had used to threaten her. The
firearm was located immediately under the driver's seat.
trial was trifurcated. At the end of the first phase, the
jury found him guilty of first-degree sodomy, and at the
close of the second phase, the jury found him guilty of
possession of a handgun by a convicted felon. Finally, at the
close of the third phase, the jury found Ward guilty of being
a first-degree persistent felony offender (PFO), enhancing
the recommended sentences from the first two phases.
Consistent with the jury's recommendation, the trial
court entered a judgment sentencing Ward to twenty-five years
for sodomy and fifteen years for possession of a handgun, to
run consecutively for a total of forty years.
appeal, Ward argues that the trial court erred: (1) by not
suppressing the handgun and S.R.'s testimony; (2) by
improperly applying the protection of the Rape Shield Law to
exclude evidence that S.R. had performed acts of prostitution
in her past; (3) by allowing evidence that S.R. was seventeen
at the time of the charged offense; (4) by ruling that the
admission of evidence of S.R.'s age at the time of the
offense did not open the door to evidence of S.R.'s prior
prostitution; (5) by not allowing Ward to stipulate in the
second phase of the trial that he was a convicted felon; and
(6) by not severing Ward's possession of a handgun by a
convicted felon charge for separate trial. Additional facts
will be presented as necessary.
The trial court did not err in denying Ward's motion to
suppress the handgun or S.R.'s testimony.
moved to suppress the handgun and S.R.'s testimony on the
grounds the evidence was obtained as a result of an illegal
stop and search. The trial court denied the motion, including
the following findings in its opinion and order:
According to [the detective's] testimony, the Defendant
was placed under arrest, handcuffed, and then seated in the
back of a police car for transport. [The detective] searched
the defendant's vehicle finding a firearm under the
driver's seat. The Defendant seeks to have this evidence
suppressed arguing that the "stop" was based on a
911 call which was uncorroborated and that the warrantless
search was illegal because the Defendant was secured in the
backseat of a police car at the time the search was made.
The testimony before the Court is that the vehicle was parked
in the church parking lot at 4:04 a.m. when Off. Drury
approached the car. Officer Drury saw two people in the car
and, upon questioning them about their presence, learned
their identities and quickly ascertained that the Defendant
was a registered sex offender and the other occupant was a
juvenile female. Shortly thereafter the seventeen year old
told Off. Drury that she was forced at gunpoint to perform
oral sex on the Defendant. This brief detention was
reasonable under the circumstances and does not invalidate a
subsequent search of the vehicle. ... In the case before this
Court the police were notified of a suspicious car parked in
a church parking lot at approximately 4:00 a.m. When Officer
Drury arrives, he sees the Defendant's parked [sic] in
the church parking lot with two individuals inside. There was
no arrest made or subsequent search of the car conducted
based on the 911 call. It wasn't until the seventeen year
old made her accusation that the Defendant was placed under
arrest and the car searched for evidence of the crime that
the seventeen year old reported.
appeal, Ward argues that the trial court erred in denying his
motion to suppress the gun and S.R.'s testimony. More
specifically, Ward argues that (1) he was seized; (2) the
police lacked reasonable suspicion; (3) the
"Richard" 911 call was an anonymous tip that was
uncorroborated; and (4) S.R.'s testimony was tainted and
should have been suppressed.
review of a suppression decision is two-fold. First,
"[w]e review the trial court's factual findings for
clear error, and deem conclusive the trial court's
factual findings if supported by substantial evidence. The
trial court's application of the law to the facts we
review de novo." Williams v. Commonwealth, 364
S.W.3d 65, 68 (Ky. 2011).
seminal case, Terry v. Ohio, the Supreme Court held
that police may briefly detain someone for investigative
purposes if "the police officer [can] point to specific
and articulable facts" which lead him to reasonably
conclude "that criminal activity may be afoot." 392
U.S. 1, 21 (1968). In Ward's case, the police officers
conducted a Terry stop based on a 911 tip about a
suspicious vehicle parked in a church parking lot at 4:00
a.m. In order to detain Ward for investigative ...