FROM BRACKEN CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 17-CR-00016
FOR APPELLANT: Samuel N. Potter Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: COMBS, GOODWINE, AND TAYLOR, JUDGES.
Hiles ("Appellant") appeals, as a matter of right,
her judgment of conviction in the Bracken Circuit Court for
criminal facilitation to incest and being a second-degree
persistent felony offender. Appellant argues the: (1)
Commonwealth failed to meet its burden in proving, beyond a
reasonable doubt, she knew and aided in the crime committed;
(2) Commonwealth introduced irrelevant, and unduly
prejudicial, evidence; and (3) jury instruction presented,
failed to adequately state the law of facilitation. Finding
no error, we affirm.
September 9, 2014, Daniel Hiles and Appellant married. At
that time, Appellant had an eleven-year-old daughter,
Mary. Daniel, Appellant, and Mary lived together
in a trailer for three years. And at some unknown date,
Daniel and Mary began having a sexual relationship. Sexual
activity usually occurred on nights that Appellant was asleep
on a couch in her living room. During this time, Mary would
exit her room, motion Daniel to walk to the back of the
trailer with her, and the two engaged in sexual intercourse.
February 2016, Donna Hurst, a case worker for the Cabinet for
Health and Family Services ("Cabinet"), received
information regarding possible sexual abuse between Daniel
and Mary that occurred the previous month. Due to these
allegations, the Cabinet opened an
investigation. On February 10, Ms. Hurst arrived at
Appellant's trailer with a Kentucky State Police trooper
and interviewed Appellant and Daniel. During the interview,
Daniel denied any sexual abuse and explained to Ms. Hurst
that Mary could be "clingy." Further, Appellant
stated she had no concerns with Daniel and Mary. But
Appellant also mentioned she would get angry at Daniel for
constantly taking up for Mary when she and her daughter would
get into fights.
subsequent interview, with only the Appellant, Ms. Hurst
informed her that she received information about Mary's
sexual abuse in the home. The information included a
statement Daniel made to a police officer, stating
"What's a guy to do if a girl is putting her hand
down his pants?" Appellant made no response to the
statement. Once again, Appellant denied all allegations of
sexual abuse, and the Cabinet closed the investigation.
months later, Mary was removed from the home-on matters not
directly related to this case-and placed in the Cabinet's
custody. The Cabinet placed her in the Holly Hill
Rehabilitation Facility in Campbell County, Kentucky. While
Mary was at Holly Hill, the Cabinet undertook an unrelated
investigation, placing limitations on Appellant's and
Daniel's visitation with Mary. Initially, Holly Hill
restricted family contact, so Mary could acclimate to the new
environment. She started home visits, without restrictions,
in September. Holly Hill revoked the visits shortly after in
November, after receiving a report alleging sex between
Daniel and Mary.
November 2016, the Cabinet opened its second investigation
regarding Daniel's sexual abuse of Mary. The second
investigation began after Ms. Hurst received another report
of sexual contact between Daniel and Mary. Once again, Ms.
Hurst and a state trooper went to the Hiles's trailer to
speak with the couple. At that time, Ms. Hurst told Appellant
the Cabinet had-once again- received allegations of
Daniel's sexual misconduct with Mary. As before,
Appellant and Daniel denied knowledge of any sexual abuse of
the second interview, Ms. Hurst discussed implementing a
"prevention plan" with Appellant. This plan
entailed the following conditions: (1) barred Daniel from
having contact with Mary, while she was in the State's
custody at Holly Hill; (2) neither Appellant nor Daniel would
have any unsupervised contact with Mary until further notice;
and (3) prevented Daniel from being the sole caretaker of
Mary. After Appellant and Ms. Hurst discussed the prevention
plan, she and Daniel acknowledged and signed it. Ms. Hurst
also informed Appellant that Mary would undergo a forensic
interview at the Child Advocacy Center ("CAC"). In
response to this, Appellant asked if Mary was "blaming
Daniel for things that happened in the past?"
the second investigation, Meagon Patton, a supervisor at the
Cabinet, met with Appellant and told her she "had
concerns in regard to sexual abuse, with Daniel as the
perpetrator and [Mary] as the victim." She further told
Appellant that neither she nor Daniel could have contact with
Mary until further investigation was completed. Appellant
assured Ms. Patton that when Mary was released, the two of
them would live in Appellant's Mother's house-and not
February 2017, Mary returned home to Appellant, and the two
began living in Appellant's Mother's
house. At the time of Mary's return, Ms.
Hurst told Appellant she believed Mary was being sexually
abused by Daniel. She told Appellant that in her own
experience, observations, and interviews, she felt there were
"too many red flags." Appellant continued
expressing her disbelief that anything was happening and told
Ms. Hurst that Mary was reporting something that happened in
and Mary lived in the house-but not for long. Shortly after
Mary's return home, Appellant received a letter, which
stated the investigation was determined to be
unsubstantiated and Mary could live with Appellant and
Daniel once again. At some point, Daniel moved back into the
trailer with Appellant and Mary, stating "[The Cabinet]
dropped the case on me or something."
February or early March, Appellant sent photographs to her
friend, Melinda Phillips, by phone. The photographs showed
Mary and Daniel sleeping together on a couch, with Mary lying
on top of Daniel. Appellant told Ms. Phillips to send the
photos to a social worker-but not until after the
3rd of the month because she needed to "pay
her bills and not lose [her other children]."
March 2017, Ms. Patton went to the Hileses' trailer
because the Cabinet received a third allegation of sexual
abuse. Appellant heatedly responded that she "could not
believe this was happening," that it was
"B.S.," and "nothing was going on." Ms.
Patton informed Appellant that she had photographs. She also
noticed Appellant had a black eye, which she told Ms. Patton
Mary gave her.
next morning, Appellant sent a text message to Deputy Bob
Scott,  stating "[Daniel] admitted it and
wants to turn himself in." Before turning himself in,
Daniel had sex with the Appellant. After Daniel went to the
police station, Deputy Scott interviewed him. During his
interviews, Daniel first denied Appellant had knowledge of
the sexual misconduct, but later said she did
Commonwealth charged Appellant with three counts of
facilitation to incest. The indictment charged that she
"knowingly provided Daniel Hiles the means and
opportunity" to commit incest against Mary. At the close
of the Commonwealth's case-in-chief, Appellant moved for
a directed verdict. The trial court denied her motion and
declined making findings of fact on the record.Appellant renewed
her motion for directed verdict after announcing she would
not put on a case. The trial court, once again, denied the
motion. A Bracken County jury convicted Appellant on one
count of facilitation to incest and one count of persistent
felony offender, second degree. It recommended a five-year
sentence for facilitation, enhanced to seven years by the
persistent felony offense, second degree. On February 23,
2018, the trial court sentenced Appellant, in accordance with
the jury's recommendation, and entered its judgment of
conviction. This appeal followed.
review the issues raised by the parties using . . . different
standards. Therefore, as we analyze each issue, we set forth
the appropriate standards as necessary." Banker v.
Univ. of Louisville Athletic Ass'n, Inc., 466 S.W.3d
456, 460 (Ky. 2015).
an appeal of a criminal conviction. In our review, we are
charged with addressing three issues: (1) whether the
Commonwealth introduced sufficient proof of Appellant's
knowledge and providing means and opportunity for the crime
committed; (2) whether the trial court abused its discretion
by allowing certain statements to be introduced at trial; and
(3) whether the trial court correctly instructed the jury on
the crime of facilitation.
The Commonwealth's Burden of Proof
first argument is the trial court erred by denying her motion
for a directed verdict. Generally, the standard of review for
motions for directed verdict is as follows:
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of
the Commonwealth. If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict should not be
given. For the purpose of ruling on the motion, the trial
court must assume that the evidence for the Commonwealth is
true, but reserving to the jury questions as to the
credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991). This standard is deferential to the trial court, and
reversal is only appropriate if it could be "clearly
unreasonable" for the jury to find the defendant guilty.
Id. at 186-87. Finally, we base our review on the
proof introduced at trial and the elements of the statute
defining the offense. Lawton v. Commonwealth, 354
S.W.3d 565, 575 (Ky. 2011).
defendant to be convicted of a crime, the Commonwealth must
prove, beyond a reasonable doubt, each element of the crime
the defendant allegedly committed. Here, Appellant was
convicted of criminal facilitation to incest. Under Kentucky
law, an individual commits criminal facilitation if
"acting with knowledge that another person is committing
or intends to commit a crime, he engages in conduct which
knowingly provides such person with means or opportunity for
the commission of the crime and which in fact aids such
person to commit the crime." KRS 506.080.
based on KRS 506.080, the Commonwealth had to show that
Appellant: (1) acted with knowledge that the principal actor
is committing, or intends to commit, a crime; and (2)
knowingly provided either the means or the opportunity for
the principal actor to commit the crime. The factual timeline
shows that a "reasonable jury" could find that
Appellant committed both elements of the crime.
it was reasonable to conclude Appellant knew Daniel was
committing, or intended to commit, incest. The factual record
from February 2016 to March 2017, does not bode well for
Appellant's defense. The timeline of events below shows
how Appellant ...