PAUL HURT v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 13, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
MODIFIED: APRIL 27, 2007; 2:00 P.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001590-MR
PAUL HURT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 00-CR-000487
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND TAYLOR, JUDGES; PAISLEY,1 SENIOR JUDGE.
TAYLOR, JUDGE: Paul Hurt brings this pro se appeal from a July 25, 2005, Opinion
and Order of the Jefferson Circuit Court denying his Ky. R. Crim. P. (RCr) 11.42 motion
to vacate sentence without an evidentiary hearing. We affirm.
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
In February 2000, appellant was indicted upon three counts of first-degree
sodomy (Kentucky Revised Statutes (KRS) 510.070) and three counts of first-degree
sexual abuse (KRS 510.110). Appellant was accused of having inappropriate sexual
contact with his stepdaughter, who was then six years old. The inappropriate sexual
contact included appellant rubbing his penis upon the victim's vagina, performing oral
sodomy upon the victim, performing anal sodomy upon the victim, and the victim
performing oral sodomy upon appellant. Following trial by jury, appellant was found
guilty of three counts of first-degree sodomy and two counts of first-degree sexual abuse.
The third count of first-degree sexual abuse was dismissed prior to verdict. The jury
ultimately recommended life imprisonment upon each count of sodomy and five years
upon each count of sexual abuse. The jury recommended that these sentences run
concurrently for a total sentence of life imprisonment. In a February 8, 2002, judgment
of conviction and sentence, the trial court followed the jury's recommendation and
sentenced appellant to a total term of life imprisonment.
Appellant challenged his sentence by direct appeal to the Kentucky
Supreme Court. The Supreme Court ultimately affirmed the February 8, 2002, judgment
in Appeal No. 2002-SC-0209-MR by opinion rendered October 23, 2003. Thereafter, in
December 2004, appellant filed a motion to vacate sentence under RCr 11.42, Ky. R. Civ.
P. (CR) 60.02, and CR 60.03. Therein, appellant asserted various grounds upon which
his trial counsel was allegedly ineffective. Without an evidentiary hearing, the circuit
court denied the motion on July 25, 2005. This appeal follows.
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Appellant contends the circuit court committed error by denying his RCr
11.42 motion to vacate sentence without an evidentiary hearing. Appellant alleges that
his trial counsel rendered ineffective assistance, thus mandating reversal of his judgment
of conviction.
To prevail upon a claim on ineffective assistance of trial counsel, a
petitioner must demonstrate that trial counsel's performance was ineffective and that such
ineffectiveness was prejudicial. Strickland v. Washington, 466 U.S. 668 (1984). To
demonstrate prejudice, there must exist a reasonable probability that but for counsel's
errors the result of the proceedings would have been different. Id.
Appellant initially argues that trial counsel was ineffective for failing to
secure an expert witness who specialized in obstetrics and gynecology to testify at trial.
Specifically, appellant theorizes that:
Had a mature adult male anally sodomized a six (6) year
child, there would have at least been scar tissue present. This
fact should have been brought to the attention of the jury by
an expert witness, who specialized in obstetrics and
gynecology, for the defense. . . .
Appellant's Brief at 7. However, appellant offers no basis for his theory that there would
have been scar tissue present in a six-year-old child anally sodomized. Moreover, our
Supreme Court has recognized that “[d]ecisions relating to witness selection are normally
left to counsel's judgment and this judgment will not be second-guessed by hindsight.”
Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000)(quoting Fretwell v. Norris, 133
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F.3d 621, 627 (8th Cir. 1998)).2 Additionally, the Commonwealth's medical expert
testified that there was no traumatic injury to any of the sexual organs of the victim and
that such finding was consistent with the type of abuse that occurred. We believe that
defense counsel's decision upon whether to call such an expert witness is left to counsel's
discretion and trial strategy. In this case, appellant has failed to allege facts
demonstrating that a medical expert for the defense would have changed the outcome of
his trial proceeding.
Appellant next argues that his trial counsel was ineffective for failing to
request a jury instruction upon the lesser included offense of first-degree sexual abuse.
Appellant claims that the lesser included offense of first-degree sodomy was first-degree
sexual abuse and that trial counsel was ineffective for failing to request such an
instruction.
In Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977), the Supreme
Court held that “[a]n instruction on a lesser included offense should not be given unless
the evidence is such that a reasonable juror could doubt that the defendant is guilty of the
crime charged but conclude that he is guilty of the lesser included offense.” In his brief,
appellant argues that a reasonable juror could have concluded that he was guilty of sexual
abuse and not guilty of sodomy because:
There is not physical evidence that [victim's] vagina, anus or
mouth was penetrated with a penis, or that [appellant] had
inserted his tongue in [victim's] vagina. The Commonwealth
did not offer any physical evidence conclusively
2
Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000) was overruled upon other grounds by
Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005).
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demonstrating penetration by a penis, tongue or fingers.
[Victim] did not offer any testimony explaining just how she
would know the [sic] if she was being penetrated by a penis, a
finger or other object. Thus, there was no physical evidence
offered conclusively establishing that [victim] had been
penetrated by a penis, or tongue, which would have ruled out
a lesser included offense instruction. . . .
Appellant's Brief at 10.
While there was no physical evidence, the victim testified that appellant
performed oral sodomy on her, that she performed oral sodomy on appellant, and that
appellant performed anal sodomy on her. Appellant' s defense was complete denial to the
charges. Thus, the jury was left to either believe the victim's testimony of oral and anal
sodomy or to believe appellant's testimony that nothing occurred. Under these
circumstances, we cannot say that trial counsel was ineffective for failing to request the
jury be instructed upon the offense of sexual abuse. Simply put, we do not believe the
evidence warranted such an instruction.
Appellant next contends that his trial counsel was ineffective for failing to
object to:
The prosecution's accusing witness, [victim], holding and
hugging a “teddy bear” during her trial testimony and in the
presence of the jury[.]
Appellant's Brief at 13. Specifically, appellant contends that trial counsel was ineffective
for failing to object to the victim holding a teddy bear while testifying at trial. Appellant
believes that such act prejudiced the jury and denied him an impartial jury to hear his
case. We reject this contention. We believe the decision of whether to object to the
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victim holding a teddy bear during cross-examination is properly characterized as trial
strategy. Moreover, appellant has failed to demonstrate how the mere presence of the
teddy bear was so prejudicial that the outcome of his trial would have been different.
Appellant also alleges that his trial counsel was ineffective for failing to
object to remarks during the sentencing phase of the trial and during the Commonwealth's
closing argument that appellant would be eligible for parole after serving eighty-five
percent of his sentence. Appellant points out that such information was erroneous and
prejudicial. In fact, appellant states that the law actually required him to serve the lesser
of eighty-five percent of the term or twenty years before becoming eligible for parole.
Although the parole information offered by the Commonwealth may have been
erroneous, appellant has failed to raise sufficient allegations demonstrating how such
information was prejudicial. Considering the evidence amassed against appellant and the
particularly troubling nature of the offenses, we simply do not believe that there exists a
reasonable probability that the alleged incorrect parole information changed the outcome
of the proceedings.
Appellant further contends that trial counsel was ineffective for failing to
interview and present testimony from certain character witnesses during the sentencing
phase of trial. Appellant generally alleges that there were witnesses consisting of friends,
family, employees, and co-workers who would have testified as to his good character,
reputation, and credibility. Appellant, however, has failed to provide the names of such
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alleged witnesses and what the specific testimony would have been. As such, we do not
believe that trial counsel was ineffective for failing to call alleged witnesses.
In sum, we are of the opinion that appellant's claims of ineffective
assistance of counsel were adequately refuted upon the face of the record and that the
circuit court properly denied appellant's RCr 11.42 motion without an evidentiary
hearing. See Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
For the foregoing reasons, the Opinion and Order of the Jefferson Circuit
Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul Hurt, Pro Se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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