CHARLES LAMAR JOHNSON V. COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 27, 2009
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2007-SC-000952-MR
CHARLES LAMAR JOHNSON
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C . MCKAY CHAUVIN, JUDGE
NOS . 04-CR-003220, 05-CR-003337, 06-CR-000291
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
On August 1, 2007, Appellant, Charles Lamar Johnson, was found
guilty by a Jefferson Circuit Court jury of five (5) counts of rape in the
first degree, two (2) counts of incest, (2) two counts of sexual abuse in
the first degree, rape in the second degree, rape in the third degree,
criminal attempt to commit rape in the first degree, and sodomy in the
first degree . For these crimes, Appellant was sentenced to life
imprisonment . Appellant now appeals his conviction as a matter of right.
Ky. Const. ยง 110(2)(b) .
I . Background
At trial, five (5) young females alleged that Appellant had various
degrees of sexual contact with them on numerous occasions over the
course of a decade . Two (2) of the females were Appellant's daughters,
A.J. and C.J. and two (2) of them were friends of Appellant's daughters,
F. G. and K.H . The fifth, C . R., was a frequent babysitter in Appellant's
house. The relevant testimony at trial was as follows .
Both A.J. and C .J. testified at trial. A.J. testified that Appellant
engaged in sexual intercourse with her on several occasions, sodomized
her on one occasion, and touched her in a sexual manner more than
twenty-five (25) times when she was between the ages of eight (8) and
twelve (12) . 1 CJ testified that Appellant engaged in sexual intercourse
with her on at least seven specific occasions when she was between the
ages of eleven (11) and fifteen (15) .
F. G., K. H., and C . R. testified as well. F. G . testified that she spent
the weekend at Appellant's house in late October 2004, when she was
eleven (11) years old, and she stated that Appellant engaged in sexual
intercourse with her on each of the two nights she stayed in his home .
A.J. witnessed one of the acts of sexual intercourse and corroborated
F.G.'s testimony. K.H. frequently spent the night at Appellant's house on
weekends, and testified as to two sexual encounters she had with
Appellant when she was eleven (11) years old.2 C .R. testified that she
babysat in Appellant's home when she was eight (8) or nine (9) years old,
and recalled several sexual acts between her and Appellant during this
time (including oral sex, sexual intercourse, sodomy, and fondling) .
1 All five of the females described their sexual encounters with
Appellant in vivid detail, but we do not elaborate here.
2 During one of these incidents, Appellant unsuccessfully attempted to
achieve penetration .
At trial, the parties stipulated that Appellant suffered problems
with sleepwalking. Accordingly, Appellant's primary argument in closing
was that he did not possess the mental state required for commission of
the crimes . At the conclusion of trial, the jury found Appellant not guilty
of rape in the second degree as to A.J., but did find him guilty of: rape in
the first degree, incest, and sexual abuse in the first degree as to A .J . ;
rape in the first degree, rape in the second degree, rape in the third
degree, and incest as to C.J ; two counts of rape in the first degree as to
F.G. ; rape in the first degree and criminal attempt to commit rape in the
first degree as to K.H. ; and rape in the first degree, sodomy in the first
degree, and sexual abuse in the first degree as to C . R. For these crimes,
the Jefferson County Circuit Court jury sentenced Appellant to
imprisonment for life.
On appeal, Appellant raises five principal allegations of error: (1)
that the trial court deviated from the jury selection process in such a way
that systematically excluded African Americans from the venire from
which his petit jury was selected; (2) that African Americans were
systematically excluded from sitting on the grand jury that indicted him;
(3) that he was convicted of multiple crimes constituting a single course
of conduct; (4) that the Commonwealth improperly elicited testimony
known to be perjurious and failed to correct such testimony once
introduced ; and (5) that the Commonwealth failed to prove his age as an
essential element of the charges of rape in the second degree and third
degree. Finding no cause for reversal, we affirm Appellant's convictions .
3
II. ANALYSIS
A. Appellant Does Not Establish A Prima Facie Violation Of The Fair
Cross-Section Requirement Or A Prima Facie Case For Purposeful
Discrimination Because He Failed To Supplement The Record With
Evidence Supporting His Claim.
Appellant argues that his conviction should be reversed because
the trial court deviated from the jury selection process set forth by KRS
29A.0603 and RCr 9.30,4 resulting in a venire that did not satisfy the fair
3
KRS 29A .060 reads :
(1) Each Circuit or District Judge shall inform the Chief
Circuit Judge or the Chief Circuit Judge's designee of
the need for qualified jurors .
(2) The Chief Circuit Judge or designee shall regulate
the random assignment ofjurors for use in Circuit
and District Courts. Any petit juror assigned to a
judge of Circuit or District Court may be used by any
other judge of any other branch or division of Circuit
or District Court when jurors are needed .
(3) If a grand, petit, or other jury is ordered to be~
drawn, the Chief Circuit Judge or designee thereafter
shall cause each person drawn for jury service to be
served with a summons requiring that person to
report for jury service at a specified time and place,
unless otherwise notified by the court, and to be
available for jury service for thirty (30) judicial days
thereafter. The service of summons shall be made by
the court utilizing first class mail, addressed to each
person at his or her usual residence, business, or
post office address . In the event service cannot be
accomplished by first class mail, the court may
cause service to be made personally by the sheriff. In
either case, notice shall be mailed or served to the
prospective juror at least thirty (30) days before he or
she is required to attend.
(4) The juror qualification form required by KRS
29A .070 shall be enclosed with the summons . If the
summons is served by mail, any prospective juror
who does not return the juror qualification form
within ten (10) days may be personally served by the
sheriff at the discretion of the Chief Circuit Judge or
Chief Circuit Judge's designee .
4
(5) When there is an unanticipated shortage of available
jurors obtained from a randomized jury list, the Chief
Circuit Judge may cause to be summonsed a
sufficient number ofjurors selected sequentially from
the randomized jury list beginning with the first
name following the last name previously selected .
The persons so chosen shall be summonsed as
provided in this section, but need not be given the
notice provided in subsection (3) of this section .
(6) Only persons duly qualified and summonsed under
subsection (3) of this section and KRS 29A.070 shall
serve as jurors.
(7) If, after making a fair effort in good faith, the judge
is satisfied that it will be impracticable to obtain a
jury free of bias in the county in which the
prosecution is pending, the judge may obtain a
sufficient number ofjurors from some adjoining
county in which the judge believes there is the
greatest probability of obtaining impartial jurors . The
judge shall request the Chief Circuit Judge for the
adjoining county to draw and summon as many
jurors as are needed. Jurors summonsed under this
subsection need not be given the notice provided in
subsection (3) of this section .
Appellant neither specifies the part of the statute with which he alleges the trial
court
failed to comply in the selection of his venire, nor provides any evidence thereof .
4 RCr 9.30 reads :
(1) (a) In a jury trial in circuit court the clerk, in open
court, shall draw from the jury box sufficient names
of the persons selected and summoned for jury
service to compose a jury as required by law. If one
or more of them is challenged, the clerk shall draw
from the box as many more as are necessary to
complete the jury.
(b) If there is an irregularity in drawing from the jury
box, the names of the jurors so drawn shall be
returned to the box.
(c) When it appears that the names in the jury box
are about to become exhausted, the judge may
obtain additional jurors by drawing from the drum,
or, with the consent of the parties, by ordering the
sheriff or a bailiff appointed by the court to summon
any number of qualified persons.
cross-section requirement as expressed in Taylor v . Louisiana , 419 U .S.
522 (1975), thereby violating his Sixth Amendment right to a jury trial.
Appellant also argues that his Fourteenth Amendment rights to due
process and equal protection of the law were violated through purposeful
discrimination in the jury selection process pursuant to Batson v .
Kentucky, 476 U.S . 79, 93 (1986) . We decline to reverse Appellant's
convictions for reasons that Appellant fails to establish either a violation
of the fair cross-section requirement or a case for purposeful
discrimination .
1.
Fair Cross-Section Requirement
Here, Appellant first claims that the process from which the venire
was selected was flawed in such a way that systematically excluded
African Americans . Indeed, the panel from which a petit jury is selected
must be drawn from a representative cross-section of the community in
order to satisfy the Sixth Amendment's guarantee to a fair and impartial
jury. Taylor , 419 U .S . at 528-530 (citing Smith v. Texas , 311 U .S . 128
(1940)) . However, the burden is upon the Appellant to establish a prima
facie violation of the fair cross-section requirement. Duren v. Missouri,
439 U .S. 357 (1979) .
(2) The jury-selection process shall be conducted in
accordance with Part Two (2) of the Administrative
Procedures of the Court of Justice .
While alleging that the trial court deviated from these procedures, Appellant
neither points to a specific part of the statute from which the trial court
deviated, nor provides any evidence thereof.
Prior to the venire panel's appearance on the first day of trial,
Appellant requested that the trial court permit testimony from a clerk in
the Jefferson Circuit Court regarding the selection of the jury pool.
Appellant then introduced statistical information compiled by the
Administrative Office of the Courts concerning jury selection procedures
in Jefferson County . In response, the Commonwealth argued that the
law does not guarantee that any individual petit jury will reflect the exact
racial composition of the community. Ultimately, the trial court
disallowed testimony by the clerk absent a showing that the process was
flawed in a manner that systematically excluded minority groups . The
trial court, however, stated the subpoenaed records would be sealed in
the record or made available for purposes of appellate review .
Nevertheless, on appeal, it is apparent that Appellant has failed to
supplement the record with this statistical information (or, for that
matter, any other evidence that tends to establish a prima facie violation
of the fair cross-section requirement) . "It is incumbent upon Appellant to
present the Court with a complete record for review ." Chestnut v .
Commonwealth , 250 S .W.3d 288, 303 (Ky. 2008) ; see Steel Technologies,
Inc . v . Con leton , 234 S .W.3d 920, 926 (Ky. 2007) ; Davis v.
Commonwealth , 795 S.W .2d 942, 948-949 (Ky. 1990) .
Without this supplemental information, Appellant cannot establish
a prima facie violation of the fair cross-section requirement, namely:
In order to establish a prima facie violation of the fair-crosssection requirement, the defendant must show (1) that the
group alleged to be excluded is a "distinctive" group in the
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community; (2) that the representation of this group in
venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process .
Duren, 439 U.S . at 364 .
Under the first of the Duren requirements, Appellant does show
that African Americans represent a distinctive group in the community.
Duren, 439 U .S. at 364 . In order for a group to be distinctive, "it must
comprise a substantial percentage of the county population ."
Co mmonwealth v. McFerron, 680 S.W.2d 924, 928 (Ky. 1984) . Appellant
cites figures from the 2008 World Almanac stating that the total
population of Louisville-Jefferson County (as of 2006) was approximately
554,496, with African Americans comprising 13% of the area's total
population. In any event, absent these statistics, it has long been held
that African Americans are a distinctive group in the community. See
Strauder v . West Virginia, 100 U.S . 303, 310 (1880) (abrogated on other
grounds by Taylor , 419 U.S. at 536) .
Yet, though Appellant meets the first of the Duren requirements,
he falls short of demonstrating the remaining two. Also under Duren,
Appellant must establish "that the representation of this group in venires
. . . is not fair and reasonable in relation to the number of such persons
in the community ." Duren, 439 U.S . at 364. In order to satisfy this
requirement, Appellant must "demonstrate the percentage of the
community made up of the group alleged to be underrepresented" and
compare that percentage to the number of African Americans in venires.
Duren , 439 U .S . at 364 . Here, rather than providing statistics, Appellant
merely estimates the number of African Americans which made up his
venire (three to ten) . This is not sufficient.
Since Appellant fails to show any underrepresentation of African
Americans in jury pools over a period of time, he accordingly cannot meet
the third of the Duren requirements : that such underrepresentation was
caused by the "systematic exclusion of the group in the jury-selection
process ." Duren, 439 U.S. at 364 . Appellant makes no attempt to
compare the proportion of African Americans in the population of
Jefferson County to the number called to serve on juries over a
significant time period . Castaneda v. Partida, 430 U.S . 482, 494 (1977)
(citing Hernandez v. Texas, 347 U.S . 475, 480 (1977)) ; see also Duren,
439 U .S . at 366 (without statistics showing that African Americans were
underrepresented not just occasionally, but regularly, Appellant fails to
meet the final Duren requirement) .
2 . Purposeful Discrimination
Appellant also fails to make out a prima facie case for purposeful
discrimination . Though Appellant argues that the trial court's juryselection process violated his Fourteenth Amendment right to equal
protection, the burden in any equal protection case is "on the defendant
who alleges discriminatory selection of the venire `to prove the existence
of purposeful discrimination .' Batson, 476 U.S . at 93 (quoting Whitus v.
Georgia, 385 U.S. 545, 550 (1967)) . To make out this prima facie case,
9
Appellant must first "show that he is a member of a racial group capable
of being singled out for differential treatment." Batson, 476 U.S . at 94
(citin Castenda , 430 U .S. at 494) . Once this burden is met, Appellant
must show that "in the particular jurisdiction members of his race have
not been summoned for jury service over an extended period of time."
Batson, 476 U .S . at 94 citing Castenda , 430 U.S . at 494) . Appellant's
bare argument that the venire from which his petit jury was selected had
only "three to ten" African Americans is not enough to meet this
standard .
B. Appellant Failed To Preserve His Claim That African Americans
Were Systematically Excluded From The Grand Jury Because He Did
Not Object Prior To Trial.
Appellant next argues that his conviction should be reversed
because no African Americans were seated on his grand jury because
they had been systematically excluded from the process in violation of
Taylor, 419 U.S . at 528-530 and Batson , 476 U .S. at 93 . We decline to
reverse Appellant's conviction for reasons that he failed to object to the
composition of the grand jury prior to trial, thereby waiving his claim
here.
We have long held that "the appellant has the duty to make timely
objections and if he wants to preserve his issues for review by this court
the objections must be specific enough to indicate to the trial court and
this court what it is he is objecting to ." Bell v. Commonwealth , 473
S .W.2d 820, 821 (Ky. 1971) (citing Blanton v. Commonwealth, 429
S .W.2d 407 (Ky. 1968) ; RCr 9 .22) . The error is not preserved in a timely
10
manner if one is convicted and only then takes issue with the grand jury
on appeal . Commonwealth v . Nelson, 841 S .W.2d 628, 632 (Ky .1992) .
Even were we to consider Appellant's claim, he still provides no evidence
as to systematic exclusion of African Americans in the grand jury
selection process or that his grand jury was not taken from a fair cross
section of the community. For these reasons, Appellant's claim is
without merit and will not be considered further.
C. There Was No Violation Of The Constitutional Protections
Against Double Jeopardy Because The Incest And Rape Charges Did
Not Arise From A Single Continuing Offense .
Appellant argues that his conviction should be reversed because
his Fifth Amendment protection against double jeopardy was violated
when he was convicted of both rape and incest based upon a single
continuing offense . He insists that he should have only been convicted
of either rape or incest pertaining to each of his daughters, as he
committed no additional acts in order to be convicted of the separate
crimes. We decline to reverse Appellant's conviction for two reasons.
First, Appellant's convictions of both rape and incest for engaging
in multiple acts of sexual intercourse with his daughters did not
constitute double jeopardy because we conclude that his acts did not
constitute a single continuing offense. The jury found Appellant guilty of
two counts of incest: one count for engaging in sexual intercourse with
his daughter, AA., and another for engaging in sexual intercourse with
his daughter, C .J . Appellant contends that he was convicted of both
rape in the first degree and incest for the single continuing offense of
11
engaging in sexual intercourse with. his daughters . We disagree. For an
act to constitute a single continuing offense, it must have some duration,
rather than consist solely of an isolated act. Blockburger v. United
States, 284 U .S . 299, 302-303 (1932) (citing Ex parte Snow , 120 U.S .
274 (1887)) . The offenses of rape and incest do not have a durational
requirement; rather, each offense consists of an isolated act of sexual
intercourse . See KRS 530.020; KRS 510 .040. It was not the course of
abuse that Appellant inflicted upon his daughters that constituted a
prohibited act. Instead, each time Appellant engaged in sexual
intercourse with his adolescent daughters, he committed a separate
offense. Blockburger, 284 U.S. at 302-303 (1932) . In the case at bar, the
Commonwealth proved Appellant engaged in sexual intercourse with
both A .J. and C .J . on numerous occasions.5
Second, even if the Commonwealth had only proved that Appellant
engaged in sexual intercourse with each of his daughters on one
occasion, his Fifth Amendment protection against double jeopardy would
still not have been violated . The test for determining whether a
defendant can be convicted of more than one crime arising out of a single
5 C.J. testified that she and Appellant engaged in sexual intercourse
three to four times a week and described at least seven specific acts of sexual
intercourse in detail . Appellant was convicted of one count of rape in the
first-degree, one count of rape in the second-degree, one count of rape in the
third-degree, and one count of incest as to C.J . A.J . testified that she and
Appellant engaged in sexual intercourse at least four times on at least four
separate occasions, estimated that he had touched her in a sexual manner
over twenty-five times, and stated that the abuse occurred a couple of times
a month. Appellant was convicted of one count of rape in the first-degree,
one count of sexual abuse in the first-degree, and one count of incest as to
A.J.
12
act is whether each charge requires proof of a fact that the other does
not.6 Blockburger, 284 U.S. at 304 . The crimes of rape and incest each
require proof of a fact that the other does not. Specifically, rape requires
proof of age, whereas incest does not; incest requires proof of
relationship, whereas rape does not. See KRS 530 .020; KRS 510.040 .
D. Appellant Fails To Establish A Case Of Prosecutorial Misconduct
Because He Fails To Demonstrate That Any Testimony At Trial Was
Perjurious.
Appellant argues that his Fourteenth Amendment due process
rights were violated because the Commonwealth knowingly elicited
perjured testimony and failed to correct it upon its introduction . We
decline to reverse Appellant's conviction because he cannot show that
the testimony was perjurious.
Although never articulating the legal basis of his argument,
Appellant seems to allege a type of prosecutorial misconduct : knowingly
eliciting false testimony at trial. We have held that, "[i]n order to
establish [this form of] prosecutorial misconduct . . . , the defendant
6 This Court has not always followed Blockburger. However, in
Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996), the line of cases
straying from the Blockburger rule was specifically overruled . Among these
cases were Hamilton v. Commonwealth, 659 S .W.2d 201 (Ky. 1983) and
Denny v. Commonwealth , 670 S .W.2d 847 (Ky. 1984), which addressed the
issue contemplated by Appellantwhether a single act of sexual intercourse
could give rise to charges of both rape and incest. "Neither of these cases
would have required reversal under Blockburger analysis, since the age of
the victim is an element of statutory rape, but not incest, and the
relationship of the victim to the defendant is an element of incest, but not
rape ." Burge, 947 S.W.2d at 810. Therefore, even if the rape and incest
charges had both arisen from the same act of sexual intercourse between
Appellant and his daughters, there would still be no violation of his
constitutional protections against double jeopardy.
13
must show (1) the statement was actually false; (2) the statement was
material; and (3) the prosecution knew it was false." Commonwealth v.
Spaulding, 991 S .W.2d 651, 654 (Ky. 1999) ( quoting United States v.
Lochmondy, 890 F.2d 817, 822 (6th Cir . 1989)) . Accordingly, we review
Appellant's claim through these elements .
Turning to the record, there is no evidence that any of the
statements identified by Appellant as perjury were either actually false or
known to be so by the Commonwealth . Appellant merely cites
inconsistencies in the testimony of various witnesses and then concludes
that they must be perjurious . From here, Appellant makes the
assumption that the Commonwealth must have elicited these statements
knowing of their falsity. Appellant, however, points to no evidence
demonstrating that any witness committed perjury, defined as "a
material false statement, which he does not believe, in any official
proceeding under an oath required or authorized by law." KRS 523 .020 .
Because he can identify no instance of perjury, he cannot show that the
prosecution knew of the statements' falsity and failed to correct the
testimony .?
7 We also note that Appellant relies on Napue v. People of State of Illinois,
360 U .S . 264 (1959) in support of his assertions . Factors existed, however, in
Na ue that are not present in the case at bar, making it readily distinguishable.
In that case, a prosecutor assured the witness that the government would
attempt to seek reduction in the witness's sentence in consideration for his
testimony at trial . Then, during the witness's testimony, the prosecutor asked
the witness if any consideration had been promised in return for his testimony,
but the witness denied any such promise. In Napue , therefore, the prosecution
clearly knew the statement of the witness to be false and failed to correct it.
14
Nevertheless, Appellant relies on the following statement to
buttress his argument that the inconsistent statements made by
witnesses amounted to perjury: "We know of no rule of law, logic, or
nature that dictates that as between two contradictory statements, one of
them must be true . In fact, the law indicates the opposite is true ."
Spaulding, 991 S.W .2d at 657 . Appellant insists that this means that if
there are two contradictory statements, both of them must be necessarily
false . This argument is illogical. Spaulding does not stand for the
assertion that neither of the contradictory statements can be true, but
rather that one of the statements must necessarily be false. Even if
Appellant was correct in his assertion, and both of the inconsistent
statements were automatically deemed to be false, he still fails to show
that the false statements were made intentionally or that the prosecution
knew of their falsity.
E. The Trial Court Did Not Abuse Its Discretion When It Denied
Appellant's Motion For A Directed Verdict Because It Was Not
Unreasonable For The Jury To Find Him Guilty.
Appellant's final contention is that the trial court erred in failing to
grant his motion for a directed verdict because the Commonwealth failed
to prove his age as an essential element of the charges of rape in the
second degree and rape in the third degree . Consequently, he claims
that he was denied his right to a fair trial guaranteed by the Sixth
Amendment of the United States Constitution and his right to due
process guaranteed by the Fourteenth Amendment of the United States
Constitution . We decline to reverse Appellant's convictions and conclude
15
that the trial court did not abuse its discretion by denying his general
motion for a directed verdict based upon insufficiency of the evidence .
As a preliminary issue, we note that Appellant's motion for a
directed verdict did not rise to the level of specificity required for
preservation under CR 50.01 . In pertinent part, CR 50 .01 reads, "[a]
motion for a directed verdict shall state the specific grounds therefor ."
We have consistently applied this rule in criminal cases, holding that the
failure to state a specific ground for directed verdict "will foreclose
appellate review of the trial court's denial of the directed verdict motion ."
Pate v. Commonwealth , 134 S .W.3d 593, 597-598 (Ky. 2004) (citin
Daniel v. Commonwealth, 905 S .W.2d 76, 79 (Ky. 1995) ; Hercules
Powder Co. v. Hicks , 453 S .W.2d 583, 589 (Ky. 1970) ; Gulf Oil Corp. v.
Vance, 431 S .W .2d 864, 866 (Ky. 1968)) . The record shows that
Appellant made a motion for directed verdict at the close of the
Commonwealth's case-in-chief and renewed the motion at the close of all
evidence. However, Appellant did not specify in the motion, or in its
renewal, that the Commonwealth failed to prove his age at the time he
committed the acts that gave rise to the second- and third-degree rape
charges . Rather, Appellant made a general motion for directed verdict
based upon insufficiency of the evidence as to all charges.
When a defendant has been charged with multiple crimes, a
motion for a directed verdict is not the proper procedure for challenging
the sufficiency of the evidence on less than all the charges :
16
A motion for a directed verdict of acquittal should only be
made (or granted) when the defendant is entitled to a
complete acquittal i.e., when, looking at the evidence as a
whole, it would be clearly unreasonable for a jury to find the
defendant guilty, under any possible theory, of any of the
crimes charged in the indictment or of any lesser included
offenses .
Campbell v. Commonwealth , 564 S .W.2d 528, 530 (Ky. 1978) (emphasis
added) ; see Combs v. Commonwealth 198 S .W .3d 574, 578-579 (Ky.
2006) ; Seay v. Commonwealth , 609 S .W.2d 128, 130 (Ky. 1980) ; Miller v.
Commonwealth , 77 S.W.3d 566, 577 (Ky. 2002) ; Kimbrough v.
Commonwealth , 550 S .W.2d 525, 529 (Ky.1977) .
In the case at bar, Appellant made a general motion for a directed
verdict based upon insufficiency of the evidence. Appellant now claims
error as to only two of his several convictions.$ Because Appellant was
not entitled to a complete acquittal based upon the insufficiency of the
8 Just as in the case at bar, we held that the Appellant in Anastasi v .
Commonwealth , 754 S .W .2d 860 (Ky. 1988) failed to preserve the issue of the
sufficiency of the evidence :
Anastasi did not properly preserve for appellate
review the issue of sufficiency of the evidence in
regard to the element of sexual contact. A careful
review of the record indicates that Anastasi did not
argue that the prosecution failed to prove the
element of sexual gratification in any of the various
motions for a directed verdict. It cannot be raised for
the first time on appellate review. Anastasi did not
object to the giving of any instruction . Sexual
gratification is a single element of the crime of sexual
abuse in the first degree. A motion for directed
verdict is not the proper method of challenging the
sufficiency of the evidence on a particular issue.
Anastasi, 754 S .W .2d at 862 (internal citations omitted) .
17
evidence, his general motion for a directed verdict did not preserve this
issue for our review pursuant to Campbell , 564 S.W.2d at 530.
In any event, we find no manifest injustice in the trial court's
denial of Appellant's motion for a directed verdict based upon
insufficiency of the evidence.9
Among the crimes for which Appellant was convicted were one
count of rape in the second degree and one count of rape in the third
degree : both in relation to his daughter, A.J . To satisfy the elements of
second-degree rape, the Commonwealth was required to prove that
Appellant was eighteen (18) years of age or older when he engaged in
sexual intercourse with A.J ., who was under the age of fourteen (14) at
the time . KRS 510 Similarly, to satisfy the elements of third.
.050(1)(b)
degree rape, the Commonwealth was required to prove that Appellant
was twenty-one (21) years of age or older when he engaged in sexual
intercourse with A.J ., who was under the age of sixteen (16) at the time.
KRS 510 Appellant now claims that the Commonwealth failed
.
.060(1)(b)
to prove an essential element of each of these crimes: that he was
eighteen (18) years of age or more with respect to rape in the second
9 Because Appellant failed to properly preserve the issue at trial, we
review only for palpable error pursuant to RCr 10.26, which reads :
A palpable error which affects the substantial rights
of a party may be considered by the court on motion
for a new trial or by an appellate court on appeal,
even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted
from the error.
18
degree and twenty-one (21) years of age or more with respect to rape in
the third degree at the time he engaged in sexual intercourse with A.J .
"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)
(citing Commonwealth v. Sawhill, 660 S.W .2d 3 (Ky. 1983)) . The
dispositive question is whether there was any evidence presented that
Appellant was at least twenty-one (21) years of age at the time the alleged
crimes were committed. We find that there was.
We restated the long-held standards under which we review a
motion for a directed verdict in Benham, 816 S .W .2d at 187 :
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.
(citin Sawhill , 660 S .W.2d at 3 ; Trowel v. Commonwealth , 550 S.W.2d
530 (Ky. 1977)) .
In the case at bar, the indirect evidence as to Appellant's age was
sufficient for a reasonable juror to find him guilty beyond a reasonable
doubt of rape in the second degree and the third degree . Though there
was a time when we required direct evidence of age as an element of a
crime, Hon v. Commonwealth, 670 S.W.2d 851, 852 (Ky. 1984), "sixteen
19
years later, this Court overruled the strict direct evidence standard of
proof enunciated in Hon and. reinstated the general standards set forth in
Kendricks(v. Commonwealth , 557 S .W.2d 417 (Ky. 1977)] ." Moody v.
Commonwealth , 170 S.W .3d 393, 397 (Ky. 2005) (citin Martin v.
Commonwealth , 13 S .W .3d 232, 235 (Ky. 2000)) . Now, the defendant's
age may be proven by both direct and indirect (or circumstantial)
evidence "so long as the indirect evidence is sufficient to create a
reasonable inference" of the defendant's age. Moody, 170 S .W.3d at 397
{citin Martin 13 S. W.3d at 235) . In Martin , we explained that:
An inference is the act performed by the jury of inferring or
reaching a conclusion from facts or premises in a logical
manner so as to reach a conclusion . A reasonable inference
is one in accordance with reason or sound thinking and
within the bounds of common sense without regard to
extremes or excess . It is a process of reasoning by which a
proposition is deduced as a logical consequence from other
facts already proven .
13 S .W.3d at 235 .
In the case at bar, Appellant does not contest the fact that C .J. and
A .J . are his daughters or that their ages met the statutory requirements
for the various degrees of rape at the time he engaged in sexual
intercourse with them. Rather, he merely argues that the
Commonwealth did not explicitly prove his age as an element of the
crimes at trial .lo
to The Commonwealth contends that the testimony of Probation and
Parole Officer Joe A . Miller during the sentencing phase of the trial was
enough to relieve them of their burden of proving Appellant's age as an
element of the crimes of rape in the second degree and third degree.
Testimony during the sentencing phase of the trial, however, is
20
We conclude that, pursuant to Moody, there was sufficient
evidence presented at trial to show that Appellant was above the ages of
eighteen (18) and twenty-one (21) when he engaged in sexual intercourse
with C .J. 11 At the time of trial, C.J. was eighteen (18) years old and A.J .
was fourteen (14) . When the acts that gave rise to the second- and thirddegree rape charges against Appellant occurred (between 2001 and
2004), C .J . was between the ages of twelve (12) and fifteen (15) and A .J .
was between the ages of eight (8) and eleven (11) . Cf. Lair v.
Commonwealth , 330 S .W.2d 938, 940-941 (Ky. 1959) ("No proof was
introduced by the Commonwealth as to the age of the appellant . . . [but
the] evidence convincingly established that the appellant was over
seventeen years of age at the time the offense was committed .) From
these facts, the jury could reasonably infer that in order to have
biological children that were the ages of his daughters, Appellant must
have been above the age of twenty-one (21) so as to satisfy both the age
requirements of rape in the second degree and rape in the first degree . 12
In addition, we must not discount the jury's opportunity to actually see
Appellant at trial and deduce his approximate age .
inconsequential when determining if the Commonwealth proved all elements
of the offences charged during the guilt/innocence phase of the trial.
11 The jury convicted Appellant of second-degree and third-degree rape
in relation to C.J., but found him not guilty of second-degree rape in relation
to A.J.
12 Court documents show that Appellant's date of birth is September
10, 1963, making him forty-three years old at the time of trial and between
the ages of 37 and 41 when the offenses of rape in the second degree and
third degree were committed.
21
Given this evidence, it was not manifestly unjust for the jury to
find that Appellant had reached the requisite ages to commit the crimes.
III. CONCLUSION
Therefore, for the aforementioned reasons, we hereby affirm
Appellant's sentence and convictions .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Charles Lamar Johnson
# 125989
Kentucky State Reformatory
3001 W. Highway 146
LaGrange, KY 40032
COUNSEL FOR APPELLEE:
Jack Conway
Attoreny General
Michael Louis Harned
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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