DANNY WILLIAM NEAL v. COMMONWEALTH OF KENTUCKY

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RENDERED: February 26, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-003158-MR DANNY WILLIAM NEAL v. APPELLANT APPEAL FROM BARREN CIRCUIT COURT HONORABLE BENJAMIN L. DICKINSON, JUDGE ACTION NO. 97-CR-000155 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: BUCKINGHAM, JOHNSON, AND KNOX, JUDGES. JOHNSON, JUDGE: Danny William Neal (Neal) has appealed from the judgment of the Barren Circuit Court entered on December 3, 1997, convicting him of sexual abuse in the first degree (Kentucky Revised Statutes 510.110), and sentencing him to serve three years in the penitentiary. We affirm. The charge of sexual abuse against Neal relates to conduct which was alleged to have occurred on May 23, 1997, in Gorin Park (the park) in Glasgow, Kentucky. On that day, Neal went to the home of Mary Neal (Mary), the sister and neighbor of Neal's grandmother. Neal, who was twenty-five-years old, asked Mary if her granddaughter, D.N., could accompany him and his three-year-old son to the park to play. Mary consented. D.N. and Neal walked to the park, but Neal's son did not go with them. D.N. testified that at the park Neal asked her how old she was. After she told him she was eight years old, he responded, "That's old enough." D.N. then testified that he felt her "between her legs" and told her to take her clothes off. away from him. She declined and ran She further related that he exposed his penis, urinated and masturbated in front of her. On cross-examination D.N. revealed that Neal was "far away" when he engaged in these later activities. Finally, D.N. testified that Neal warned her not to tell anyone what happened and that if she did he would drown her in the creek. D.N. eventually told her seven-year-old cousin what had occurred at the park and five days later, at her cousin's urging, D.N. informed her grandmother, Mary, about the incident. notified D.N.'s mother and the police were notified. Mary On June 4, 1997, the Barren County Grand Jury returned an indictment charging Neal with sexual abuse in the first degree. Neal was tried on November 6, 1997, and sentenced on December 1, 1997, pursuant to the jury's recommendation. Neal maintains that the Commonwealth failed to present sufficient evidence against him to support a conviction of sexual abuse in the first degree. Neal was prosecuted under KRS 510.110, which states, inter alia, that a person is guilty of -2- sexual abuse in the first degree when "[h]e subjects another person to sexual contact who is incapable of consent because [s]he: . . . [i]s less than twelve (12) years old." (b)(2). Id. at "Sexual contact" is defined in KRS 510.010(7) to mean "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party." Neal contends that there was not sufficient evidence for the jury to reasonably determine that he subjected D.N. to "sexual contact." He argues as follows: DN never did say that Danny Neal touched her vaginal area. The most she said was that Danny touched her between her legs, and she did not specify where between the legs. It is embarrassing for a prosecutor to have to ask a little girl if someone touched her vagina. But it should be even more embarrassing to send a man to prison without requiring specific proof —from the child and not from her friends or relatives—that a crime was committed. There was no specific proof in this case, and directed verdict should have been granted. The standard this Court must apply in reviewing a trial court's denial of a criminal defendant's motion for directed verdict was articulated in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991), as follows: 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. -3- See also Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983), and Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). It is true that D.N. did not use the word "vagina." It is also true that the prosecutor did not ask D.N. whether Neal touched her "vagina." Instead, the prosecutor asked D.N. if she knew that difference between a "good" touch and a "bad" touch to which D.N. responded "yes." She described a "bad" touch as a touch to one's "privacy," which she stated included the area "between the legs." She told the jury that Neal had given her a "bad" touch "between her legs." Neal insists that the area “between her legs” also could include anywhere from D.N.’s toes to her knees. "It could have been a touch between her ankles, her calves, her knees, or some other non-intimate part of her legs." We believe that there is sufficient evidence from which the jury could reasonably infer that Neal touched D.N. in her vaginal area between her legs. That evidence includes the fact that Neal made a sexually suggestive remark to D.N., that he asked her to remove her clothing, and that he masturbated in front of her. In any event, it is not necessary for D.N. to identify that part of her body touched by Neal with anatomical specificity, or to use proper words. "It is not necessary for the victim/witness to completely articulate what sexual or other intimate parts of her body were touched by the aggressor." S.W.2d 466, 471 (1993). Bills v. Commonwealth, Ky., 851 See also Sharp v. Commonwealth supra, 849 S.W.2d at 547 (although the defendant's conviction was -4- reversed on other grounds, the victim's testimony that defendant "touched her 'middle part' with his 'middle part' or 'private thing' and that the act 'hurt'" was sufficient to support jury's conviction for rape). Accordingly, the judgment of the Barren Circuit Court is affirmed. ALL CONCUR. BRIEFS AND ORAL ARGUMENT FOR APPELLANT: BRIEF FOR APPELLEE: Hon. A. B. Chandler III Attorney General Hon. Susan Jackson Balliet Louisville, KY Hon. Dana M. Todd Assistant Attorney General Frankfort, KY ORAL ARGUMENT FOR APPELLEE: Hon. Dana M. Todd Assistant Attorney General Frankfort, KY -5-

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