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Bullitt v. Commonwealth

Supreme Court of Kentucky

December 19, 2019

RONALD BULLITT, JR. APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANN BAILEY SMITH, JUDGE NOS. 15-CR-003385AND 17-CR-002971

          COUNSEL FOR APPELLANT: Daniel T. Goyette Louisville Metro Public Defender of Counsel Office of the Louisville Metro Public Defender Jazmin P. Smith Assistant Public Defender Louisville Metro Public Defender's Office

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General Office of the Attorney General

          OPINION

          HUGHES, JUSTICE.

         Ronald Bullitt, Jr. appeals from a judgment of the Jefferson Circuit Court convicting him of first-degree rape and imposing a twenty-year sentence. The rape sentence was enhanced pursuant to the jury finding Bullitt guilty of being a first-degree persistent felony offender (PFO I), based on an out-of-state statutory rape conviction. Bullitt contends the trial court erred by 1) denying his motion for a directed verdict on the PFO I charge and 2) denying his motion to suppress his statements to police. Finding no error, we affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         In December 2015, a female reported that she was raped and robbed at gunpoint in an alley. The police investigated and collected physical evidence, including a condom. The victim identified her assailant in a photo array the next day. That identification led to Bullitt's arrest a few days later and his interrogation at the police department, which was videotaped.

         Bullitt was indicted later that month for committing first-degree rape, first-degree robbery, first-degree wanton endangerment, and possession of a handgun by a convicted felon. After a four-day trial, a jury found him guilty of first-degree rape, but acquitted him of the robbery and wanton endangerment charges; the Commonwealth dismissed the possession charge. The jury recommended a ten-year sentence for the rape conviction, and after finding Bullitt guilty of being a PFO I, recommended he serve twenty years in prison. The trial court sentenced him accordingly, and this appeal followed. Additional facts pertinent to Bullitt's claims of error are set forth below.

         ANALYSIS

         I. The Commonwealth Introduced Sufficient Evidence to Permit the Jury to Draw a Reasonable Inference that Bullitt Was Previously Convicted of Committing a Sex Crime against a Minor

         Kentucky Revised Statute (KRS) 532.080(1) requires the imposition of an enhanced sentence for a defendant found to be a persistent felony offender. Prior felony convictions from other jurisdictions may serve as the basis for a jury making such a finding. KRS 532.080(2), (3).

         A Jefferson County, Kentucky grand jury indicted Bullitt in October 2017 as being a PFO I.[1] The grand jury charged, pertinently:

(1) That on or about the 4th day of October 2010, in Clayton County, Georgia, [Defendant Ronald L. Bullitt, Jr.] appeared in the Superior Court of Clayton County, a court of general jurisdiction, pursuant to Indictment No. 2010CR01513-05, charging him with Statutory Rape, a felony in violation of the Georgia Criminal Codes and that said court convicted and sentenced the defendant to twenty (20) years in the Georgia Department of Corrections;
AND
(2) That [Defendant Ronald L. Bullitt, Jr.] was convicted of one or more felony sex crimes against a minor as defined in KRS 17.500.

         The Commonwealth presented proof during the penalty phase that in October 2010 Bullitt was convicted in Georgia of committing the felony offense of statutory rape and sentenced to twenty years in prison and that at the time of the offense Bullitt was twenty (20) years old.[2] The Commonwealth did not introduce evidence of the rape victim's age beyond the witness's statement that Bullitt was convicted of statutory rape.

         At the close of the Commonwealth's case, Bullitt moved for a directed verdict on the PFO I charge asserting that the Commonwealth failed to prove Bullitt committed a prior sex crime against a minor.[3] The Commonwealth responded that based upon its witness's testimony, relying on certified copies of Bullitt's Georgia conviction, a reasonable juror could find that statutory rape is a felony sex crime against a minor. Bullitt claims the trial court erred by denying the motion for directed verdict. Our appellate standard of review is clear:

When considering a motion for a directed verdict, the trial court is required to draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Only when the evidence is insufficient to induce reasonable jurors to believe beyond a reasonable doubt that defendant is guilty, should a directed verdict 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 directed verdict is, if under the evidence as whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Smith v. Commonwealth, 410 S.W.3d 160, 165-66 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991)) (internal citations and quotation marks omitted).

         KRS 532.080(3) provides the elements for proving a defendant is guilty of being a PFO I. Pertinently, a person is guilty of being a PFO I when he stands convicted of committing one or more felony sex crimes against a minor as defined in KRS 17.500 and the previous felony conviction may include convictions in any other jurisdiction as long as certain conditions are met.[4], [5]As to other jurisdictions, KRS 17.500(8)(c) defines "sex crime" as a "felony offense from another state or a territory where the felony offense is similar to a felony offense specified in [KRS Chapter 510, Sexual Offenses[6]." Although Bullitt does not challenge the sufficiency of the Commonwealth's proof on any other PFO I element, he argues on appeal that because the Commonwealth failed to prove the age of the child involved in the Georgia statutory rape conviction, [7] it did not establish that the Georgia offense is similar to an applicable Kentucky felony statutory rape offense, and thus his PFO I conviction must be dismissed.

         Georgia Code Annotated (Ga. Code Ann.) 16-6-3(a) relevantly provides that a "person commits the [felony] offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse."[8] KRS Chapter 510 contains Kentucky's rape statutes. "[I]t is an element of every offense defined in [KRS Chapter 510] that the sexual act was committed without consent of the victim," KRS 510.020(1), and such lack of consent includes incapacity to consent, KRS 510.020(2)(b). In terms of age, "[a] person is deemed incapable of consent when he or she is: (a) [l]ess than sixteen (16) years old; [or] (b) [s]ixteen (16) or seventeen (17) years old and the actor is at least ten (10) years older than the victim at the time of the sexual act." KRS 510.020(3). Potentially similar felonies to Georgia's statutory rape law are Kentucky's first-, second-, and third-degree rape statutes.[9] In pertinent part, these rape statutes provide that a defendant is guilty of: first-degree rape when he engages in sexual intercourse with a child less than twelve (12) years old, KRS 510.040;[10] second-degree rape when he, being eighteen (18) years old or more, engages in sexual intercourse with a child less than fourteen (14) years old, KRS 510.050;[11] and third-degree rape when he, being twenty-one (21) years old or more, engages in sexual intercourse with a child less than sixteen (16) years old, KRS 510.060.[12]

         Bullitt specifically argues that Georgia's and Kentucky's statutes are not similar because they do not share comparable "age of the child" and "age of the defendant" provisions, and that since Bullitt was nineteen years old at the time of commission of the Georgia offense, Kentucky's third-degree rape statute, wherein the defendant must be a minimum of twenty-one (21) years old, is inapplicable here. Considering KRS 510.060 irrelevant, Bullitt contends that because the Commonwealth did not prove the Georgia victim's age (known only to be less than sixteen years old by the terms of Ga. Code Ann. 16-6-3(a)), the Commonwealth failed to prove that Bullitt was guilty of a crime similar to Kentucky's applicable KRS 510.040 (victim less than age 12) and KRS 510.050 (victim less than age 14), and consequently failed to prove that Bullitt was guilty of a prior felony sex crime against a minor. We disagree.

         In Commonwealth v. Gadd, 665 S.W.2d 915, 917 (Ky. 1984), this Court observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; it does not require the Commonwealth to affirmatively prove the previous conviction was not obtained by constitutionally impermissible means. Accord McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994) ("KRS 532.080(2) and (3) require proof of the fact of 'previous felony convictions' and not their underlying validity."). The Gadd Court also declared a defendant must file a pretrial motion to challenge the constitutional validity of a prior felony conviction which serves as the basis for a persistent felony offender charge. 665 S.W.2d at 918. Specifically, the Court stated:

[The challenge to the validity of an earlier conviction] is a preliminary matter which is properly presented by a motion that must be made before trial as in [Kentucky Rule of Criminal Procedure (RCr)] 8.18. The defendant is apprised of the previous conviction that will be used against him by the face of the indictment. At this point, he should challenge by motion any conviction so appearing if he has evidence that it was obtained by means constitutionally impermissible. The decision to be made is one which is preliminary in nature. The question of some underlying constitutional invalidity should be raised by the defendant and decided before the trial as a threshold issue to the admissibility of the evidence of conviction at the trial itself.

         We have since clarified that collateral review of a prior felony conviction serving as the basis for PFO sentence enhancement is only available when a defendant claims a complete denial of counsel in the prior proceeding. See McGuire, 885 S.W.2d at 937; Commonwealth v. Fugate, 527 S.W.3d 43, 46 (Ky. 2017) (explicitly overruling Gadd, 665 S.W.2d 915, and Dunn v. Commonwealth, 703 S.W.2d 874 (Ky. 1985), to the extent they allow constitutional validity challenges to a prior conviction beyond the complete denial of counsel claim). However, the procedural requirement of a pretrial motion to challenge the prior conviction remains unchanged. See RCr 8.18.

         As of 2006, the General Assembly decided that PFO I status may apply to a defendant who has been convicted of committing one or more felony sex crimes against a minor, even if the prior conviction(s) occurred in a foreign jurisdiction. KRS 532.080(3). The General Assembly, however, limited the use of the foreign conviction to crimes which can be deemed similar to a Kentucky crime, particularly those defined in KRS 17.500. Id. This amendment to the PFO statute does not change the Commonwealth's burden of proof. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

         Under KRS 532.080(3), proof of Bullitt's prior conviction for committing a felony sex crime against a minor is "an indispensable element of the PFO charge." Merriweather v. Commonwealth, 99 S.W.3d 448, 452 (Ky. 2003). However, Bullitt's argument on appeal goes beyond his trial motion for a directed verdict, which simply alleged the Commonwealth failed to prove he was previously convicted of a sex crime with a minor. His appellate argument challenges the validity of comparing his prior sex crime conviction in Georgia to a sex crime in KRS Chapter 510.[13] Bullitt seeks to characterize the question whether his Georgia crime is similar to a Kentucky crime and may be used for purposes of a PFO I charge - a question of law properly addressed by the trial court before trial - as an element of the PFO status to be proved by the Commonwealth during trial.

         Because this legal question regarding the admissibility of evidence was not decided by the trial court, it is not properly before this court for review. Gadd, 665 S.W.2d at 917. Our review is limited to whether it would be clearly unreasonable for a jury to find Bullitt was previously convicted of a sex crime with a minor. Because a "reasonable inference is sufficient to meet the requirements of the PFO statute," we must determine if the testimony given by the Commonwealth's witness - including that Bullitt was convicted of statutory rape and that he was twenty years old at the time he committed the crime - allowed the jury "in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess" to deduce that Bullitt was convicted of a sex crime with a minor. Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999). The Commonwealth argues that it put ...


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