Opinion
NO. 2011-CA-001181-MR
02-01-2013
PATRICK COURTNEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE DAVID E. MELCHER, JUDGE
ACTION NO. 10-CR-00230
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Patrick Courtney appeals from the June 7, 2011, final judgment of the Boone Circuit Court sentencing him to five years' imprisonment for his conviction of first-degree sexual assault. For the following reasons, we affirm.
Courtney was indicted for sexual abuse in the first degree based upon an allegation that on or about May 2, 2010, he subjected a five-year-old female to sexual contact. Courtney pled not guilty and a jury trial followed.
At trial, the evidence established that at the time of the offense, Courtney, then eighteen years old, was staying with his cousin, D.B. On the night of the offense, D.B.'s neighbor left her duplex to pick up her boyfriend from work and Courtney went next door to babysit her three children who were already asleep. The following morning, the neighbor's five-year-old daughter informed her that the night before, Courtney had entered her bedroom and "touched her bad part." The neighbor called the police and Courtney voluntarily accompanied Detective Tracy Watson to the police station.
At the police station, Det. Watson read Courtney his Miranda rights and questioned him about the incident. Courtney admitted to accidentally touching the victim's vagina while rubbing her back. Thereafter, he was arrested for sexual abuse in the first degree. Following a jury trial, he was convicted and sentenced to five years' imprisonment. This appeal followed.
First, Courtney argues that the Commonwealth's line of questioning during trial amounts to palpable error. Specifically, he claims that the Commonwealth improperly questioned him during cross-examination by asking him if other witnesses had lied during their testimony. Courtney concedes that this claim was not preserved and requests that we review it for palpable error pursuant to RCr 10.26. Under that rule,
Kentucky Rules of Criminal Procedure.
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law and in general a palpable error "affects the substantial rights of a party" only if 'it is more likely than ordinary error to have affected the judgment." An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable."Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (internal citations omitted).
Generally,
[a] witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying. Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony. Counsel should be sufficiently articulate to show the jury where the testimony of the witnesses differ without resort to blunt force.Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997).
In Moss, despite finding the Commonwealth's line of questioning to be improper, the Kentucky Supreme Court declined to reverse, finding that the improper questioning did not amount to palpable error. Id. Establishing palpable error as a result of this type of improper questioning has proven difficult. See Ernst v. Commonwealth, 160 S.W.3d 744, 764 (Ky. 2005); St. Clair v. Commonwealth, 140 S.W.3d 510, 554 (Ky. 2004); Caudill v. Commonwealth, 120 S.W.3d 635, 662 (Ky. 2003); Tamme v. Commonwealth, 973 S.W.2d 13, 28 (Ky. 1998). Similarly, here, though the Commonwealth's line of questioning was improper, the error did not likely affect the outcome of the case or cause "manifest injustice." On review, we find no palpable error resulted.
Next, Courtney claims that the trial court erred by denying his motions for a directed verdict of acquittal because the Commonwealth failed to prove beyond a reasonable doubt all elements of the charge. Specifically, he alleges that the Commonwealth failed to prove that his touching of the victim's vagina was done "for the purpose of gratifying the sexual desire of either party" as is necessary for proving the "sexual contact" element of first-degree sexual abuse. Courtney points to his interview with Det. Watson in which he denied having any sexual thoughts or behavior in connection with touching the victim's vagina.
Upon consideration of a motion for a directed verdict,
the trial court must draw all fair and reasonable inferences from the evidence in favor of [the non-moving party]. If the evidence is sufficient to induce a reasonable juror to believe . . . that the defendant is [liable], 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 [non-moving party] 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); accord Banks v. Commonwealth, 313 S.W.3d 567, 570 (Ky. 2010).
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 [liability], only then the defendant is entitled to a directed verdict of acquittal.
A person may be found guilty of sexual abuse in the first degree when: "[h]e or she subjects another person to sexual contact who is incapable of consent because he or she [i]s less than twelve (12) years old[.] KRS 510.110(1)(b)(2). "Sexual contact" is defined as "any 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).
Kentucky Revised Statutes.
Kentucky law is clear that intent can be inferred from the actions of the defendant and the surrounding circumstances. Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988) (whether touching was done for purposes of sexual gratification may be inferred from the evidence). See also Tungate v. Commonwealth, 901 S.W.2d 41, 42 (Ky. 1995) (when defendant denied touching victims for sexual gratification, that element of the charge could be inferred from the evidence). In weighing the evidence, "[t]he jury has wide latitude in inferring intent[.]" Anastasi, 754 S.W.2d at 862 (citation omitted).
In the case at bar, the victim testified that Courtney entered her bedroom the night in question and touched her vagina. Courtney admitted to touching the victim in this manner when questioned by Det. Watson, but then at trial denied touching the victim. Based on this evidence, a jury could reasonably infer that Courtney intended to touch her for purposes of sexual gratification. As a result, the trial court did not err by denying Courtney's motions for a directed verdict of acquittal.
Next, Courtney argues that the Commonwealth committed prosecutorial misconduct in its closing argument. Specifically, he alleges that the prosecutor improperly gave a personal opinion as to Courtney's guilt. Courtney concedes that this error was not preserved for review by objection during trial and requests that we review his claim for palpable error under RCr 10.26.
During a trial, "[g]reat leeway is allowed to both counsel in a closing argument. It is just that - an argument. A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). Likewise, we will "reverse for prosecutorial misconduct in a closing argument only if the misconduct is "flagrant[.]" Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006) (citation omitted). When reviewing prosecutorial conduct under the palpable error standard, we are concerned with the overall fairness of the trial. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
We decline to address whether each of the following three conditions is satisfied: "(1) Proof of defendant's guilt is not overwhelming; (2) Defense counsel objected; and (3) The trial court failed to cure the error with a sufficient admonishment to the jury[,]" since Courtney did not object at trial. Matheney, 191 S.W.3d at 606.
Here, Courtney complains the prosecutor stated during closing argument that "no doubt" existed in his mind that the evidence proves beyond a reasonable doubt that Courtney is guilty of sexual abuse in the first degree and asked the jury to find accordingly. The Commonwealth is entitled to ask a jury during closing argument to find a defendant guilty. Crossland v. Commonwealth, 291 S.W.3d 223, 236 (Ky. 2009). Moreover, even if the prosecutor's statement was outside the bounds of a permissible argument, we do not find it to be "flagrant" or to have undermined the overall fairness of the trial. As a result, no palpable error resulted.
Lastly, Courtney claims that palpable error resulted from the testimony of D.B. at trial. Specifically, he alleges that D.B. was erroneously allowed to testify about Courtney's habit of being distant after doing something he should not have done. Courtney concedes this claim was not preserved for review and asks us to review it for palpable error under RCr 10.26.
At trial, D.B. testified that he and Courtney are cousins, that he has known Courtney his whole life, and that the two of them had lived together for a couple of years when they were younger. D.B. testified that Courtney was staying at his duplex the night in question and that Courtney went next door to babysit for his neighbor's children. D.B. stated that when his neighbor returned home that night, Courtney stayed outside until D.B. went to bed. D.B. found that strange and stated that every time Courtney does something he should not have done, he is kind of distant for awhile.
Courtney maintains that D.B.'s testimony that he would be distant after doing something he should not have done constitutes improper habit evidence. Evidence of a person's habit is admissible under KRE 406 and "is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit[.]" KRE 406. Courtney contends that before D.B.'s testimony was admitted, the Commonwealth should have been required to establish exactly how often D.B. saw Courtney, when and where that occurred, and how often and in what circumstances he had observed Courtney's behavior. However, had Courtney objected to D.B.'s testimony during trial, the Commonwealth would have had the opportunity to elicit additional testimony, which Courtney claims is lacking, to establish habit. Based on our review of the record, even if D.B.'s testimony was insufficient to establish habit under KRE 406, in no way did it affect the substantial rights of Courtney or amount to manifest injustice so as to rise to the level of palpable error.
Kentucky Rules of Evidence.
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In summary, Courtney's claims of error are without merit and the final judgment of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky