Opinion
NO. 2018-CA-000461-MR
01-03-2020
RICHARD WAYNE ELY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. CONSTANZO, JUDGE
ACTION NO. 17-CR-00458 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE, AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Richard Wayne Ely appeals from his convictions following a jury trial for sexual abuse in the first degree and indecent exposure in the first degree, which resulted in a ten-year sentence. Ely argues he should have received a directed verdict by the Bell Circuit Court on the charges because while there is no dispute that a two and one half-year-old child (victim) was present when Ely masturbated, there was no evidence that victim saw him or was harmed, affronted, or alarmed by his actions.
On August 28, 2017, victim left a haircut appointment with his mother. Victim was being carried on his mother's hip to his mother's car, which was parked in front of the library, when Ely approached them. Ely unzipped his pants, pulled out his penis and began to stroke himself, masturbating. Victim's mother was upset by his actions, but before she could leave she had to get victim into his car seat, Ely sat down while she put victim in his car seat and then stood up and continued masturbating in her view while they drove off. Victim's mother called the police.
Based on victim's mother's description, officers in the vicinity immediately located Ely in an alley near the library. They requested Ely stand and hold his arms out. When he obeyed, they saw that his pants were unzipped, and his penis was outside his pants.
After Ely was arrested, victim's mother identified Ely out of a photo array. Video cameras on the library captured Ely and his actions.
Ely was indicted on September 27, 2017, on one count of sexual exposure in the first degree and two counts of indecent exposure in the first degree. The first two counts were based on Ely's actions towards victim and the third was based on other children likely being present by the library when Ely's actions took place. The second count of indecent exposure was dismissed by the Commonwealth before trial.
At the trial, testimony was provided by the police and victim's mother. After the Commonwealth's case-in-chief and at the conclusion of the trial, Ely made requests for a directed verdict on both counts, which were denied.
The jury found Ely guilty of both counts based on his actions toward victim. The jury recommended the maximum sentence of ten years on first-degree sexual abuse and ninety days and a $250 fine on first-degree indecent exposure. After a presentence investigation report was filed, on March 2, 2018, Ely was sentenced in accordance with the jury's recommendation to concurrent sentences.
The indecent exposure count was amended to allow the jury to convict Ely of first-degree indecent exposure for his actions toward victim or second-degree indecent exposure for his action toward victim's mother. --------
In Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), the Kentucky Supreme Court restated the rule for a directed verdict as follows:
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."To defeat a directed verdict motion, the Commonwealth must only produce 'more than a mere scintilla of evidence.'" Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham, 816 S.W.2d at 188). "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." Benham, 816 S.W.2d at 187.
Ely argues he should have received a directed verdict on sexual abuse in the first degree because while victim was present, there was no evidence that victim saw him or was harmed by his actions.
Pursuant to Kentucky Revised Statues (KRS) 510.110(1)(c)2:
A person is guilty of sexual abuse in the first degree when: . . . Being twenty-one (21) years old or more, he or she: . . . Engages in masturbation in the presence of another person who is less than sixteen (16) years old and knows or has reason to know the other person is present[.]As is evident from the statutory language, KRS 510.110(1)(c)2 does not require any proof of harm. Instead, knowledge of victim's mere presence was enough where it was established that Ely was masturbating, and the relative ages of Ely and victim. It does not matter if Ely intended that his actions be observed by victim's mother rather than victim. Ely knew victim was present and chose to proceed. It was within the jury's purview to decide that Ely's actions warranted the maximum sentence.
Ely argues he should have received a directed verdict on indecent exposure in the first degree because there was no evidence that victim saw him, let alone was affronted or alarmed by his actions.
Pursuant to KRS 510.148(1): "A person is guilty of indecent exposure in the first degree when he intentionally exposes his genitals under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm to a person under the age of eighteen (18) years." The statute does not require that the victim be affronted or alarmed; it only requires that the intentional exposure of Ely's genitals occur "under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm[.]" Id. (emphasis added). Unlike nudity in a public shower, see Jenkins v. Commonwealth, 308 S.W.3d 704, 714 (Ky. 2010), the exposure of a penis and masturbation on a public street is a circumstance which we have no trouble concluding is conduct which Ely should have known was likely to cause affront or alarm to a child, whether or not the particular victim at issue was in fact affronted or alarmed.
Accordingly, we affirm Ely's conviction and sentence by the Bell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Karen Shuff Maurer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky