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Powers v. Commonwealth

Court of Appeals of Kentucky

May 24, 2019



          BRIEFS FOR APPELLANT: Steven Nathan Goens Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky



          LAMBERT, JUDGE.

         Ray William Powers has directly appealed from the January 18, 2018, judgment of the Calloway Circuit Court convicting him of one count each of first-degree sodomy (incapable of consent/physically helpless) and of first-degree rape (incapable of consent/physically helpless), and sentencing him to seventeen years' imprisonment. Finding no error or abuse of discretion, we affirm.

         In November 2016, the Calloway County grand jury returned a four-count indictment against Powers, charging him with one count each of first-degree sodomy (incapable of consent/physically helpless) pursuant to Kentucky Revised Statutes (KRS) 510.070, first-degree rape (incapable of consent/physically helpless) pursuant to KRS 510.040, tampering with evidence pursuant to KRS 524.100, and incest (forcible compulsion/incapable of consent) pursuant to KRS 530.020.[1] Powers was 48 years old at the time of the offense, which took place on September 21, 2016, at a storage unit. The victim[2] was Powers' 19-year-old cousin by adoption, who had been living with Powers and his wife since the previous summer. In the criminal complaint dated October 7, 2016, Kentucky State Police Officer Jody Cash described the circumstances as follows:

. . . . On 09/23/2016, [the victim] reported to Kentucky State Police that she had been sexually assaulted by her uncle, Ray Powers, on 09/21/2016 while at Garland Storage Unit #37 in Calloway County. [The victim] reported the following: she arrived at the storage unit to meet her uncle, by adoption, Ray Powers at approximately midnight. While there, [the victim] was provided alcohol by Mr. Powers. After drinking 3 or 4 "Straw-ber-itas", [the victim] became unable to move or speak. While still conscious but physically helpless, [the victim] recalled Mr. Powers removing one pant leg and performing oral and vaginal sex with her. [The victim] provided a sworn statement at the time of the report.
During the investigation, video footage from Garland Storage confirmed two vehicles, one matching Mr. Powers' vehicle and one matching [the victim's] vehicle, at the storage unit from approximately midnight until approximately 0300 on 09/21/2016.
Also during the investigation, two phones belonging to Mr. Powers were taken into evidence. These phones were, by way of a search warrant, downloaded. Located in Mr. Powers' main phone, the one he was using on 09/21/2016, were numerous photos which pertain to this investigation. Once specific video shows Mr. Powers performing oral sex on a female believed to be the victim. The female has one pants leg on and one pants leg off, exactly as the victim reported. Also, a ring belonging to the victim can be seen on her hand. During the videos and photos, the victim remains in the same physical position and appears to be physically helpless. The location of the videos/photos appears to be the same as the storage unit, as verified by the couch in both. Mr. Powers' face can be seen in the video of his performing oral sex. The photos and videos are time stamped 09/21/2016 between 0230 and 0245.
The videos and photos related to this investigation had been deleted from the phone prior to it being taken into evidence. However, the download was able to recover them.

         Powers entered a plea of not guilty, was found to be indigent, and was appointed counsel. A jury trial was scheduled for October 2017.

         Prior to trial, Powers filed a motion requesting a hearing to determine the admissibility of evidence of prior specific instances of consensual sexual behavior between the victim and another person pursuant to Kentucky Rules of Evidence (KRE) 412(b)(1)(A).[3] Powers was attempting to introduce evidence that the victim had had unprotected sex with her boyfriend after her alleged rape but before she had reported it. Powers wanted to offer this evidence to show that the victim's boyfriend was the source of semen, injury, or other physical evidence pursuant to the Rule.

         The court held a hearing in chambers to consider Powers' motion. During the hearing, Powers' attorney stated that no injury to the victim had been alleged as a result of the assault and a rape kit had not been collected so there was no semen to be tested. However, she believed the evidence of the later sexual encounter with a third party was relevant. She stated that in her mind, a person would not have consensual sex with another person before reporting a prior rape. The Commonwealth disputed Powers' argument. The court held that the evidence was irrelevant without even reaching the KRE 412 question, while Powers argued that it was highly relevant to show the victim's state of mind. The court stated that without expert testimony to support the claim that such behavior was inconsistent with the behavior of someone who had been raped, it was not relevant evidence. The court also rejected Powers' argument that if the victim lied to her boyfriend about being raped to cover a legitimate encounter with Powers, this somehow made such evidence admissible. In discussing the boyfriend's possible testimony, the court stated that such information could be used to impeach any inconsistent testimony. By order entered October 9, 2017, the court denied Powers' motion and ruled that evidence of the victim's sexual encounter with her boyfriend after the alleged assault but prior to her hospital examination was not admissible in Powers' case-in-chief pursuant to KRE 401, 403, and 412.

         The court held a jury trial in October 2017, after which the jury returned guilty verdicts on the sodomy and rape charges and recommended concurrent 17-year prison sentences. Prior to the entry of the final judgment, Powers moved the court for a judgment of acquittal pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.24 as well as the Kentucky and United States Constitutions. The basis for the motion was information obtained by Powers' investigator from the foreman of the jury. The foreman stated that she voted to find Powers guilty based upon her disregard of the toxicologist's testimony in light of her own belief as to the effect drugs might have on a person, her extrapolated belief that Powers had been grooming the victim for a long time, and her speculation that Powers had replaced the storage unit in a video recorder that might have held evidence with a blank storage unit. Powers argued that her verdict was not based on evidence that was presented during the trial. The court determined that the three instances raised in the motion could have been argued as reasonable inferences from the evidence during closing argument. Furthermore, the court noted on the record that there was no evidence the juror did her own investigation, but rather she made her own inferences based on the evidence that was presented. Finally, the court did not find a basis to permit the juror in question to testify at the hearing. The court entered a written order denying Powers' motion by order entered December 15, 2017, concluding that "it is impossible to say that a reasonable juror could not believe beyond a reasonable doubt that the Defendant was guilty of rape in the first degree and sodomy in the first degree."

         The court entered a final judgment on January 19, 2018, convicting Powers of the sodomy and rape charges and sentencing him to concurrent 17-year sentences pursuant to the jury's recommendation.[4] Powers was also required to register as a lifetime sex offender. This appeal now follows.

         On appeal, Powers raises three arguments. Namely, whether the trial court abused its discretion in refusing to admit evidence that the victim had a sexual encounter with her boyfriend after Powers raped her, whether unpreserved prosecutorial errors amounted to palpable error, and whether the court abused its ...

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