Opinion
NO. 2010-CA-001737-MR NO. 2011-CA-002141-MR
04-25-2014
MYRON PARSONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 10-CR-00064
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: This opinion addresses two appeals which have been combined for purposes of convenience. The first, No. 2010-CA-1737, consists of Myron Parsons' direct appeal from a judgment convicting him of first-degree rape. The second, No. 2011-CA-2141, is Parsons' appeal from an order denying his motion for relief from the conviction on the basis of Kentucky Rule of Civil Procedure (CR) 60.02. We affirm both the judgment and the order.
I. Background
Following heavy drinking during the early morning hours of December 12, 2009, Parsons was accused of raping an adult female on the dance floor of a local bar. A jury found Parsons guilty of First-Degree Rape, Physically Helpless in July of 2010.
Parsons was acquitted of a persistent felony offender charge.
Parsons filed a CR 60.02 motion subsequent to his conviction, in which he claimed to have discovered evidence which had not been available to him at trial. More specifically, Parsons learned shortly after his trial that following an investigation which began in June 2010, his victim had been indicted on September 17, 2010, on one count of Forgery of a Prescription, first offense, to which she ultimately pleaded guilty in November of that year. The circuit court concluded the new evidence was not admissible at trial and would have had no impact on its outcome. Parsons' motion was overruled.
We introduce additional facts where they are relevant to our analysis.
II. Discussion
A. No. 2010-CA-1737
Kentucky Revised Statutes (KRS) 510.040 provides in pertinent part, "A person is guilty of rape in the first degree when . . . (h)e engages in sexual intercourse with another person who is incapable of consent because he . . . [i]s physically helpless . . . ." A person is physically helpless when he "is unconscious or for any other reason is physically unable to communicate unwillingness to an act." KRS 510.010(6). It is a defense to first-degree rape "that at the time [the defendant] engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for" the victim's physical helplessness. KRS 510.030.
Parsons argues he was entitled to a directed verdict on the charge of first-degree rape because the Commonwealth failed to prove: (1) that his victim was physically helpless at the time of the incident; (2) that Parsons knew his victim was physically helpless; and (3) that penetration had occurred.
The standards governing a motion for directed verdict are well established:
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.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citation omitted).
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.
This standard applies only to arguments which have been preserved; unpreserved arguments are governed by RCr 10.26 which authorizes this Court to grant "appropriate relief" but only when we determine "that manifest injustice has resulted from the error." RCr 10.26; see also Stinnett v. Commonwealth, 364 S.W.3d 70, 80 (Ky. 2011). Parsons acknowledges that only the first of his arguments concerning his motion for a directed verdict was preserved. We turn to the matters presented for our review with these standards in mind.
Parsons first argues the Commonwealth did not present sufficient proof that his victim was physically helpless at the time of the assault. We are not persuaded.
There was considerable evidence that Parsons' victim had been drinking heavily during the two-hour period prior to the rape and was significantly impaired. The Commonwealth presented the following relevant evidence: although the victim could remember consuming only three drinks in that time frame, several other witnesses saw her consume significantly more; one witness testified it could have been as many as nine alcoholic beverages. Parsons had pulled his victim's pants down partially, and she was too weak to pull them up although she tried to do so. One witness testified to his belief the victim had been unconscious on the dance floor; he testified that she was slumped over in front of Parsons and that Parsons was holding her up by her hips. Another witness said the victim "looked helpless" at the time of the incident. She was unable to walk or talk; a witness who helped carry the victim out of the bar immediately after the rape testified that it was like carrying "a dead body." At the emergency room approximately two hours after leaving the bar, the victim's behavior varied from incoherent to nonresponsive; her blood alcohol level at that time was more than two times the legal limit.
This evidence was enough for a juror to reasonably conclude the victim had been physically helpless at the time of the rape. There was evidence that she could not speak and that she lacked even basic physical coordination. It is reasonable to believe this would have prevented the victim from communicating to Parsons that his actions were unwanted. Parsons' argument falls far short of convincing us that the jury's verdict was unreasonable.
The next ground Parsons argues is unpreserved. He claims there was insufficient proof that he was aware that his victim was physically helpless. However, there is evidence which supports an inference to the contrary.
Several witnesses testified to their observations of the victim's helplessness; all of them were farther from the victim than Parsons. Due to his physical proximity to the victim, he was in the best position to observe her symptoms of physical helplessness. Given this evidence and the testimony that Parsons had been holding up the victim by her hips because she was unable to support herself, a jury could reasonably believe that Parsons was aware of the woman's condition. Parsons' argument does not present a sufficiently compelling scenario that would justify our finding of manifest injustice in the guilty verdict.
Lastly, and also unpreserved, is Parsons' argument that there was insufficient proof of penetration. A conviction of first-degree rape requires proof of sexual intercourse, which is defined as "sexual intercourse in its ordinary sense" and which "occurs upon any penetration, however slight . . . ." KRS 510.010(8).
The testimony was sufficient to permit a jury to believe penetration had occurred. Nearby witnesses saw Parsons on the dance floor with his penis out of his pants; the victim was bent over in front of him with her pants partially down. It appeared to more than one witness that the two were having sex on the dance floor. A forensic analysis revealed the presence of Parsons' sperm inside his victim's vagina. A swab of Parsons' penis revealed the presence of his victim's DNA. Based on this evidence, a jury could easily conclude penetration had occurred; we find no manifest injustice here.
B. No. 2011-CA-2141
Parsons asserts the circuit court erroneously denied his motion for a new trial based upon CR 60.02(b). He claims the circuit court's denial was prejudicial because it resulted in a deprivation of his right to cross-examine an adverse witness against him, namely, his victim.
Although Parsons' circuit court motion sought relief under CR 60.02(f) in addition to CR 60.02(b), he has asserted only the latter on appeal. Our analysis will be limited accordingly.
The evidence he discovered following conviction was that shortly before trial, police had begun investigating Parsons' victim for forgery of a prescription for Lortab, a controlled substance. Following her indictment in September of 2010, and after Parsons had been convicted, she pleaded guilty to one count of Forgery of a Controlled Substance, first offense.
CR 60.02(b) permits a trial court to relieve a defendant of a judgment against him upon a showing that there is "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]" To succeed on this basis of CR 60.02 relief, a defendant must show:
(1) the evidence was newly discovered since the trial, (2) the moving party was diligent in discovering the new evidence, (3) the newly discovered evidence is not merely cumulative or impeaching, (4) the newly discovered evidence is material, and (5) the evidence, if introduced, would probably result in a different outcome.7 Kurt A. Phillips, Jr., et al. Kentucky Practice: Rules of Civil Procedure Annotated, Rule 60.02 (6th Ed. 2005) (citing Joseph v. Terminix Intern. Co., 17 F.3d 1282, 40 (10th Cir. 1994); FDIC v. Oldenburg, 38 F.3d 1119 (10th Cir. 1994)). We review denial of a CR 60.02 motion for abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000).
The primary purpose for which Parsons wishes to introduce evidence of his victim's conviction and the surrounding investigation is to impeach her testimony. Even if this evidence had been admissible under KRE 608(b), as Parsons argues, mere impeachment of a witness is an insufficient reason to disturb a conviction on CR 60.02 grounds. 7 Kurt A. Phillips, Jr., Kentucky Practice, Rule 60.02.
He also contends, however, that the newly discovered evidence would have helped him assail the Commonwealth's evidence on an element of the defense, namely that he was aware that his victim was physically helpless at the time of the rape. Read in the best light, Parsons' argument appears to be that the investigation and conviction were evidence that his victim had abused narcotics at some point prior to trial. Evidence of this fact would have permitted the jury to infer the possibility that, unbeknownst to Parsons, his victim had consumed Lortab the night of the alleged rape. Therefore, even though he was present while his victim consumed many shots of alcohol and others observed her inability to walk or speak coherently, his victim had been even more incapacitated than Parsons had realized due to her possible use of narcotics in addition to the alcohol.
In support of this argument, Parsons claims the jury was instructed on second-degree rape in addition to first-degree rape. This is patently false. The jury was instructed only on charges of first-degree rape and second-degree persistent felony offender.
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We agree with the circuit court that the evidence Parsons has identified likely would not have affected the outcome of his trial. The circuit court correctly noted that evidence of additional use of intoxicating substances on the part of the victim would only have made it more likely that she was incapacitated and that her behavior would have reflected as much.
Furthermore, Parsons does not attempt to explain why he would need to be aware of precisely which substances his victim had consumed on the night in question in order to perceive her incapacity. For a conviction of first-degree rape, all that must be shown is the victim's actual physical helplessness and the defendant's perception of it. The Commonwealth met its burden with respect to both facts by providing evidence of the victim's alcohol consumption and her obvious inability to communicate. Had the jury been presented evidence that the victim had ingested an intoxicating substance in addition to the alcohol but unknown to Parsons, the verdict would have been no less likely. The circuit court did not abuse its discretion in denying Parsons' CR 60.02 motion.
III. Conclusion
The circuit court correctly denied Parsons' motions for a directed verdict and for relief pursuant to CR 60.02(b). We affirm as to both appeals.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky