Opinion
NO. 2013-CA-000719-MR NO. 2013-CA-000720-MR
06-27-2014
JAMES EARL BUNCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James W. Craft, II Whitesburg, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky William Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NOS. 12-CR-00057 & 12-CR-00059
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. COMBS, JUDGE: James Earl Bunch appeals from a conviction of sexual abuse by the Letcher Circuit Court. After our review, we affirm.
Bunch was tried by a jury on January 14 and 15, 2013. After the close of the Commonwealth's evidence, he entered a motion for a directed verdict, which the trial court denied. Bunch did not present any evidence. The jury found him guilty of two counts of first-degree sexual abuse, and he was sentenced to fourteen years of incarceration. He now appeals that conviction.
Bunch's sole argument is that the trial court erroneously overruled his motion for a directed verdict. We disagree.
When presented with a motion for directed verdict, "the trial court must 'draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict.'" Kroger Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky. 1996) (quoting Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky. 1974)). The motion only should be granted in a case of "a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Dollar General Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. App. 2006) (quoting Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985)).
The only evidence presented at Bunch's trial was testimony from the victim and from the detective who had conducted the initial investigation. Again, Bunch presented no evidence. The victim testified about the incidents of abuse in detail. It had begun when she was four years of age and continued until she was eleven. She recalled her approximate age when the acts took place, but she was unable to identify the precise dates. The detective testified that the victim's testimony was consistent with her initial report and with all subsequent interviews.
Bunch argues that the victim's testimony was insufficient to uphold his conviction. However, our Supreme Court has held that a victim's testimony is sufficient evidence to support a conviction as long as it has been consistent. Garrett v. Commonwealth, 48 S.W.3d 6, 9-10 (Ky. 2001). Bunch contends that the victim's testimony was inconsistent because she was not certain of the exact dates of the abuse. However, the Garrett Court addressed this argument as well. In Garrett, the victim was uncertain about the exact dates. The Court held that it was "wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the abuse occurred." Id. (quoting Farler v. Commonwealth, 880 S.W.2d 882, 886 (Ky. App. 1994). It held that the victim's testimony was sufficient to overcome the motion for directed verdict.
Because Bunch has presented the identical argument of Garrett, we conclude that the trial court was correct when it overruled his motion for directed verdict. Accordingly, we affirm the Letcher Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: James W. Craft, II
Whitesburg, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky