JOHN BROUGHTON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001101-MR
JOHN BROUGHTON
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 99-CR-00042
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and GUIDUGLI, Judges.
COMBS, JUDGE:
The appellant, John Broughton (Broughton), appeals
from the judgment of the Kenton Circuit Court, convicting him of
rape in the first degree and sentencing him to ten-years’
imprisonment.
He argues that the court erred in failing to
instruct the jury on a lesser-include offense and in excluding a
portion of the testimony of a defense witness.
of the record,
After our review
we affirm the judgment of the circuit court.
On January 29, 1999, the Kenton County Grand Jury
indicted Broughton on the count of Rape in the First Degree
(Kentucky Revised Statute (KRS) 510.040).
The indictment charged
that on Thanksgiving Day, November 26, 1998, Broughton forcibly
compelled M.T. to submit to sexual intercourse with him.
Broughton had invited M.T. and her boyfriend, Patrick, to his
mother’s house for Thanksgiving dinner.
M.T. and Patrick
accepted the invitation and spent Thanksgiving Day with the
Broughton family watching television, drinking alcohol, and
eating dinner.
Later that evening, M.T. and Broughton left the house
to walk to a nearby convenience store to buy some ice.
Broughton
led M.T. through a ballfield, claiming it was a short-cut to the
store.
As they were walking across the ballfield, Broughton
grabbed M.T. and made lewd sexual comments to her.
resist his advances and to get away from him.
She tried to
However, Broughton
tackled her to the ground and positioned himself on top of her.
M.T. alleged that Broughton pulled open her shirt and pushed her
pants and underwear down to her knees, exposing her breasts and
genitalia.
She screamed for help and struggled unsuccessfully to
get away from him.
Before the police arrived on the scene,
Broughton penetrated her vagina with his fingers and his penis.
At approximately 8:00 p.m. on the night in question,
Ray Johnson went outside to quiet his barking dog in the
backyard.
While he was outside, he heard a “commotion” on the
ballfield behind his house.
As he listened, Johnson heard a
female voice screaming for help.
immediately called “911" for help.
He went inside his house and
Johnson went outside.
After placing the call,
He could hear the female screaming, and
her screams seemed to be getting louder.
and the police soon arrived at his house.
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He called
“911" again,
Johnson accompanied
the police officers to the ballfield, where they discovered
Broughton on top of M.T.
The police officers forcibly removed
Broughton from M.T., and she was taken to the hospital.
Broughton was arrested and charged with rape in the first degree.
The case proceeded to trial, and the jury found Broughton guilty
as charged.
Subsequently, on April 21, 1999, the court entered
final judgment, sentencing Broughton to ten years’ imprisonment.
This appeal followed.
Broughton first argues on appeal that the court erred
in failing to instruct the jury on the offense of sexual abuse, a
lesser-included offense of rape in the first degree.
He contends
that there was substantial evidence presented at trial that
although he had attempted to have intercourse with M.T., he
failed as he was unable to attain an erection.
Broughton
maintains that there was evidence that M.T. made contradictory
statements as to whether he had penetrated her with his penis and
that the police officers who responded to the “911" call could
not recall whether Broughton had an erection when he was pulled
off M.T.
Based upon this contention, Broughton maintains that
the jury might have reasonably believed that his attempt resulted
only in sexual contact since there was equivocal evidence as to
the element of penetration required for rape.
We disagree.
It is well established in this jurisdiction that a
defendant has a right to have the jury instructed on the whole
law of the case.
(1999).
Taylor v. Commonwealth , Ky., 995 S.W.2d 355
The trial court must instruct the jury on every theory
of the case supported by the evidence -- including any lesser-
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included offenses.
(1994).
Swain v. Commonwealth, Ky, 887 S.W.2d 346
However,
[a]n instruction on a lesser-included offense
is appropriate if and only if on the given
evidence a reasonable juror could entertain
reasonable doubt as to the defendant’s guilt
on the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty
of the lesser offense.
Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 298 (1993).
A person is guilty of rape in the first degree when he
engages in sexual intercourse with another person by forcible
compulsion.
KRS 510.040(1).
As used in KRS Chapter 510,
“‘Sexual intercourse’ means sexual intercourse in its ordinary
sense
. . . . Sexual intercourse occurs upon any penetration,
however slight; emission is not required.”
(Emphasis added).
KRS 510.010(8).
A person is guilty of sexual abuse in the first degree
when he subjects another person to sexual contact by forcible
compulsion.
KRS 510.110(1).
“Sexual contact” is defined as
“touching of the sexual or other intimate parts of a person done
for the purpose of gratifying the sexual desire of either party.”
KRS 510.010(7).
Sexual abuse has been recognized as a lesser-
included offense of rape.
S.W.2d 266 (1993).
Johnson v. Commonwealth, Ky., 864
This court articulated the standard governing
jury instruction as to these related offenses in Salsman v.
Commonwealth, Ky. App., 565 S.W.2d 638 (1978):
When all of the evidence indicates that there
was sexual intercourse and there is no
evidence that there was only sexual contact,
a defendant is not entitled to an instruction
on the lesser included offense of sexual
abuse in the first degree.
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Id. at 642.
At trial, M.T. testified that Broughton forced her to
engage in sexual intercourse.
She stated that he penetrated her
with both his fingers and his penis.
On the night of the
incident and the days following, M.T. had told the police that
Broughton penetrated her vagina with his fingers and his penis.
Ray Johnson testified that he accompanied the police officers to
the ballfield where they found Broughton “on top” of M.T.
He
stated that the lower extremities of both Broughton and M.T. were
unclothed and that Broughton was moving on top of M.T. in a
sexual manner.
Johnson further testified that M.T. was screaming
“get off of me,” “stop,” and “you are hurting me.”
The police officers who responded to the “911" call
corroborated Johnson’s testimony.
They testified that they found
Broughton on top of M.T. in a sexual position and that Broughton
and M.T. were partially nude.
They also stated that M.T. told
them that Broughton had penetrated her vagina with his fingers
and his penis.
However, both officers admitted on cross-
examination that they could not recall whether Broughton had an
erection when he was pulled off M.T.
The doctor who examined
M.T. on the night of November 26, 1998, testified that he did not
find any seminal fluid.
However, he also testified that the
absence of seminal fluid was not conclusive evidence that
Broughton had not penetrated M.T. with his penis.
We find that based upon the totality of the evidence at
trial, Broughton was not entitled to an instruction for sexual
abuse.
M.T. consistently stated that Broughton had penetrated
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her with his penis, and Johnson and the police officers on the
scene testified that Broughton and M.T. appeared to be engaged in
sexual intercourse.
Contrary to Broughton’s assertion, we cannot
agree that there was sufficient evidence for a juror to doubt
that Broughton was guilty of rape but to conclude that he was
guilty of sexual abuse.
We find no error.
Broughton next asserts that the court erred in
excluding evidence that M.T. had offered to drop the charges
against Broughton in exchange for money.
Prior to trial, the
Commonwealth filed a motion in limine to exclude evidence that
M.T. had offered to drop the charges against Broughton in
exchange for money.
The Commonwealth countered by stating that
M.T. had been harassed and bribed by Broughton’s family to drop
the charges against him.
The court granted the motion to the
exclude the evidence.
At trial, Morris was called as a witness for the
defense.
She stated that she had known Broughton and his family
for several years and that she was acquainted with M.T.
Morris
testified that M.T. had admitted to her that Broughton did not
rape her.
After the case was submitted to the jury, Morris
testified by avowal that M.T. had offered to drop the charges
against Broughton in exchange for money and that M.T. demanded
to be paid at least half the money before she went to the police.
On cross-examination, the Commonwealth questioned
Morris as to whether she knew that M.T. was assisting the police
with a “sting” investigation into the attempted bribery of a
witness.
The Commonwealth then explained to the court that M.T.
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complained that she had been harassed and that she was offered
money to drop her charges against Broughton.
She agreed to
assist the police in an investigation into the harassment and
bribery allegations by participating in a “sting” operation.
The court affirmed its exclusion of evidence regarding
this matter, stating that its inclusion would have effectively
created the scenario of a “trial within a trial.”
KRE 403 provides:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of undue prejudice,
confusion of issues, or misleading to the
jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.
[Emphasis added].
The court must balance the probative value of the proffered
evidence against its possible prejudicial effect.
Hall v.
Transit Authority of Lexington Fayette Urban County Government,
Ky. App., 883 S.W.2d 884 (1994).
The decision to admit or
exclude evidence is a matter committed to the sound discretion of
the trial court, and a trial court’s ruling on such matters will
not be disturbed upon appellate review absent an abuse of
discretion.
Transit Authority of River City v. Vinson, Ky. App.,
703 S.W.2d 482 (1985);
Danner v. Commonwealth, Ky., 963 S.W.2d
632 (1998).
In this case, the court excluded the evidence
concerning M.T.’s alleged offer to drop the charges against
Broughton in exchange for money in order to prevent confusion of
issues or to avoid misleading the jury.
The court found that the
introduction of this evidence would have resulted in a “trial
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within a trial” of the bribery allegations against Broughton’s
family and would have had a prejudicial effect on the trial.
Broughton had the opportunity to impeach M.T.’s testimony and
credibility through Morris’s limited testimony without the
necessity of introducing evidence as to M.T.’s alleged bribery.
We do not agree that the court abused its discretion.
Based upon the foregoing reasons, we affirm the
judgment of the Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
Albert B. Chandler III
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, KY
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