Opinion
NO. 2013-CA-002044-MR
05-08-2015
GLENN R. GOFF APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dwight Preston Elizabethtown, Kentucky BRIEF FOR APPELLEE: Ken W. Riggs Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY EASTON, JUDGE
ACTION NO. 12-CR-00119
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND D. LAMBERT, JUDGES. D. LAMBERT, JUDGE: The Appellant (hereinafter, Mr. Goff) appeals his conviction of sexual abuse in the first degree following a jury trial in the Hardin Circuit Court. Mr. Goff asserts that the trial court erred in denying his motion to suppress the statement he gave to authorities and asserts that he was entitled to a directed verdict based on his allegations that the Commonwealth failed to present any evidence of sexual gratification. Mr. Goff also asserts that a juror later expressed reservations about the outcome of his case during voir dire proceedings on another case. Upon review, we affirm.
Mr. Goff was indicted for sexual abuse in the first degree on March 29, 2012. The indictment arose from an incident occurring on June 17, 2011, between himself and his then 13 year-old daughter, where Mr. Goff showed his daughter his penis and she touched it.
Mr. Goff was contacted by Detective Jason Propes with the Kentucky State Police, who requested that Mr. Goff come to discuss the allegations at the Kentucky State Police Post. Mr. Goff was an over-the-road truck driver and was out of town when he spoke with the Detective. Mr. Goff voluntarily appeared at the Kentucky State Police Post on September 21, 2011. The Detective and Mr. Goff went into an interview room where a videotaped interview was completed.
During this interview, Mr. Goff ultimately admitted to the Detective that he showed his penis to his daughter. After initially denying that she touched it, he eventually admitted that she did touch his penis. Mr. Goff indicated that he was simply trying to teach his daughter about sex and inquired about whether or not she had ever seen one. Mr. Goff's wife was not aware of what happened and he told her about it at the end of the interview. Mr. Goff was not arrested and left the Kentucky State Police Post in his own vehicle.
On September 21, 2011, Mr. Goff filed a motion to suppress his statements to Detective Propes on the basis that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A suppression hearing was held on October 10, 2012. Detective Propes testified on behalf of the Commonwealth. Detective Propes testified that he was in contact with Mr. Goff two weeks prior to his coming to the Kentucky State Police Post. Because Mr. Goff was an over-the road truck driver, Detective Propes testified that he told Mr. Goff to just contact him when he returned to Kentucky and they would arrange a time to meet.
Detective Propes stated that Mr. Goff told him that he wanted to come in and get things straightened out. According to Detective Propes, he and Mr. Goff mutually arranged the time for the meeting and it occurred sometime in the evening around 8:00 p.m. As far as the detective knew, Mr. Goff came and left the post in his own vehicle with his wife. He testified that he informed Mr. Goff that he was not under arrest, that he was simply closing the door to the interview room for privacy and that they could stop the interview anytime. Detective Propes said that Mr. Goff told him he understood. Detective Propes was the only officer present in the room and Detective Propes testified that Mr. Goff never said anything about not wanting to be there or that he wanted to end the interview. Propes said the door was not locked and the Mr. Goff never attempted to leave the room.
Mr. Goff testified that he had graduated high school and completed a semester of college. Mr. Goff had no prior experiences with the police and confirmed that he had a Commercial Drivers License and that in order to have such, one has to have a good driving record. Mr. Goff confirmed that he had received tickets in the past, but he had never had any conversation or questioning from the officers.
Mr. Goff said that he received a call from Detective Propes and was informed that his daughter had made some allegations against him. He testified that Detective Propes told him that he needed to contact him when he returned to the area to schedule an interview. Mr. Goff completed his run and set up the interview with Detective Propes.
Mr. Goff confirmed that he drove to the police post. He said when he arrived he went into a small room and felt like he had to follow Detective Propes into the room. Mr. Goff said that he was never told he would be arrested if he didn't cooperate, but it was always in his mind. He also testified that he felt like he should leave the interview, but he did not feel like he could leave and that if he did not stay and talk he would be arrested. Mr. Goff said he felt like he was a suspect at all times. He did say that Detective Propes got him a glass of water when he asked and that the interview was approximately 1 ½ hours.
Mr. Goff admitted that he showed his penis to his daughter. He said he was trying to convince her that she did not want to engage in sexual behavior with boys.
Upon cross-examination from the Commonwealth, Mr. Goff confirmed that he was the chief of the fire department for 12 years and had spent a total of 25 years with the fire department. He confirmed that Detective Propes told him he was not under arrest and that he never asked to leave in the course of the interview. He confirmed that was never told that he would be arrested if he did not talk and that he drove there of his own free will. Mr. Goff said he never considered calling an attorney, despite acknowledging that he had known his defense counsel since elementary school.
The trial court denied the motion to suppress on November 2, 2012, finding in light of the facts presented, a reasonable person in Mr. Goff's position would not believe he was in custody, and therefore Miranda warnings were not necessary. The trial court addressed a number of facts, including: Mr. Goff was told he was free to leave at any time; Mr. Goff left after the questioning; at no time was Mr. Goff placed under arrest; Detective Propes was not wearing a police uniform nor did he brandish his weapon; Mr. Goff and Detective Propes set up a time for the interview; Detective Propes was the only officer involved in the questioning; Detective Propes used a proper tone; and that Mr. Goff was not handcuffed or otherwise physically restrained. The trial court stated that simply because Mr. Goff was a suspect does not make the questioning custodial.
The trial was held on August 29 through August 30, 2013. The daughter testified that on June 17, 2011, she was at home with both her Mother and her father, Mr. Goff. At some point, her Mother left. The daughter stated that she was researching on a computer about how to lose weight. Mr. Goff told her she did not need to lose weight. The daughter testified that at this point, her father touched her by poking her stomach and her breast. Mr. Goff told her there was a difference between milk glands and fat. The daughter then confirmed that she saw Mr. Goff's penis soon thereafter when he removed it from his pants. He asked her if she had ever seen one and she confirmed that she touched his penis. The daughter then testified that Mr. Goff asked her to move to a different location in the room.
After the daughter testified, the Commonwealth called Detective Propes. Detective Propes' testimony was similar to that of his testimony at the suppression hearing. He testified that he conducted a voluntary interview with Mr. Goff on November 21, 2011. He testified that at first Mr. Goff denied the allegations, but eventually Mr. Goff admitted to showing his daughter his penis. He stated that at first Mr. Goff said he could not recall whether or not the daughter touched his penis, but then, eventually, Mr. Goff admitted to the detective that his daughter had touched his penis in what the Mr. Goff demonstrated as a jerking motion. Detective Propes testified that it was approximately an hour into the interview before the Mr. Goff admitted what happened.
The Commonwealth produced clips of the video recording from the interview, including segments where Mr. Goff eventually admitted that he showed his penis to his daughter. In the interview tape, Mr. Goff did say he showed her his penis for educational purposes and initially said that he pulled it out and put it back in without his daughter touching it. Mr. Goff told Detective Propes that he did not make his daughter touch it. Eventually, Mr. Goff admitted to the Detective that his daughter did touch his penis and that he told her to not let boys put it inside of her. He said that his daughter touched him only once and Detective Propes confirmed that Mr. Goff made an up and down motion with his hand when describing how his daughter touched him.
At the close of the Commonwealth's case, Mr. Goff moved for directed verdict on the grounds that the Commonwealth had failed to prove that the contact between Mr. Goff and his daughter was done for sexual gratification. The motion was denied by the trial court, who found that the daughter's testimony regarding her father poking her stomach and breast before he showed her his penis, along with the daughter's testimony that he asked her to move to another part of the room, was sufficient evidence for the jury to infer the element of sexual gratification and surpass a directed verdict. The jury found Mr. Goff guilty of sexual abuse in the first degree and he was sentenced to one year in prison. A judgment and order imposing sentence was entered on December 2, 2013. This appeal follows.
In regards to Mr. Goff's appeal of the trial court's denial of the motion for suppression, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law. Jackson v. Commonwealth. 187 S.W.3d 300, 305 (Ky. 2006), citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004); Bradley v. Commonwealth, 327 S.W.3d 512, 514 (Ky. 2010). Additionally, we must review the question of whether a defendant was in custody de novo. Smith v. Commonwealth. 312 S.W.3d 353, 357 (Ky. 2010).
In regards to Mr. Goff's appeal of the trial court's denial of his motion for directed verdict, the Supreme Court has held that "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).
Mr. Goff argues three issues on appeal 1) the trial court erred in failing to suppress his statements to Detective Propes because he was not properly read his Miranda warnings; 2) the trial court erred in failing to grant his motion for directed verdict because the Commonwealth failed to prove an essential element for a charge of sexual abuse in the first degree, that of whether or not Mr. Goff's actions were done for sexual gratification; and 3) that sworn testimony of a juror at a subsequent voir dire should have been considered by the trial court as grounds to set aside the verdict or grant a new trial.
Pursuant to Miranda v. Arizona, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates use of procedural safeguards effective to secure privilege of self-incrimination." 384 U.S. 436, 444 (1966). Miranda goes on to define "custodial interrogation" as "questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. Therefore, "Miranda warnings are only required when the suspect being questioned is 'in custody.'" Commonwealth v. Lucas, 195 S.W.3d 403, 405 (citing Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)).
For a defendant to be in custody he must be either 1) under arrest; 2) there must be a restraint of his freedom; or 3) there must be a reasonable restraint on freedom of movement to the degree associated with formal arrest. Id. "Custody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual." Baker v. Commonwealth, 5 S.W.3d 142, 145, 100 S.Ct. 1870, 64 L.Ed.2d 497 (Ky. 1999).
In Baker v. Commonwealth, the court referenced United States v. Mendenhall, 446 U.S. 544 (1980), and held that when looking at whether or not a defendant is free to leave, it does not depend on the actual belief of the defendant, but rather, when looking at the totality of the circumstances, whether or not a reasonable person would believe that he was free to leave. Id. Courts have looked at a number of factors to demonstrate seizure or custody, including the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request. Id.
Additionally, the United States Supreme Court has also held that being questioned at a police station does not automatically mean a defendant is in custody for purposes of Miranda. California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1257 (1983); see also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (holding that the subject was not in custody where the police initiated contact with the defendant and he voluntarily went into the police station).
For Mr. Goff's argument to be convincing, he must prove one of the prongs in the Miranda test established in Baker v. Commonwealth. That is, he must prove that either 1) he was under arrest; 2) there was a restraint of his freedom; or 3) there was a reasonable restraint on freedom of movement to the degree associated with a formal arrest. Baker, 5 S.W.3d at 145.
Here, it is clear that Mr. Goff was never under arrest. Both Mr. Goff and Detective Propes confirm that Propes told Mr. Goff that he was not under arrest. Therefore, the question is whether there was a restraint of Mr. Goff's freedom or whether there was a reasonable restraint on freedom of movement to the degree associated with a formal arrest.
Mr. Goff was contacted by Detective Propes via telephone. The testimony shows that Detective Propes was understanding and cooperative with Mr. Goff's work obligations and told Mr. Goff to simply contact him to set up an interview when he returned. Like the Defendant in Oregon v. Mathiason, Mr. Goff voluntarily drove to the police station in his own vehicle. Mr. Goff met with Detective Propes, who was not wearing a police uniform, and shown to a room at the police station. Both Mr. Goff and Detective Propes confirmed that Propes told Mr. Goff he was not under arrest and that he was free to leave any time. Mr. Goff was led to a room, where he conversed with the Detective in a cordial tone. The door was not locked, per the testimony of the Detective, and shown by the fact that the Detective got up to get a glass of water for Mr. Goff.
Mr. Goff did not try to leave at any time. He did not try to stop the interview at any time. He did not request or mention a lawyer at any time, despite the fact that he testified that he had known his defense counsel since elementary school. Mr. Goff admitted he was there of his own free will. At the conclusion of the interview, he left in his own vehicle, just as he arrived. There is no evidence that there was any restraint on him whatsoever, other than the fact that he was present at a police station in an interview room. As stated above, pursuant to California v. Beleher, simply because one is being questioned in a police station does not automatically mean that a defendant is in custody. Beleher, 463 U.S. at 1161.
The crux of Mr. Goff's argument is that he "felt" like he was in custody. His testimony was that, despite being told he was not under arrest and would not be under arrest, he felt that if he did not cooperate, he would be arrested. This is simply not the standard of determining when a subject is in custody for purposes of Miranda. It is whether or not a "reasonable person" would have felt he was in custody. Baker, 5 S.W.3d at 145. Here, looking at the totality of the circumstances and the facts listed above, it is clear that a reasonable person would not believe they were in custody. Whether or not Mr. Goff "felt" like he was in custody is irrelevant. Therefore, the trial court's ruling was proper.
Mr. Goff's second argument is that the trial court erred in failing to grant his motion for directed verdict on the basis that the Commonwealth failed to present any proof of "sexual gratification," an essential element to Sexual Abuse, First Degree.
Under KRS 510.110(1)(d):
(1) A person is guilty of sexual abuse in the first degree when:KRS 532.045(1)(a) defines a person of special trust to include the position occupied by a biological parent. Additionally, KRS 510.070(7) defines sexual contact 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." The court properly instructed the jury as to the charge and the definition portion of the law was listed preliminarily in the instructions given the jury.
(d) Being a person in a position of authority or position of special trust, as defined in KRS 532.045, he or she, regardless of his or her age, subjects a minor who is less than eighteen (18) years old, with whom he or she comes into contact as a result of that position, to sexual contact or engages in masturbation in the presence of the minor and knows or has reason to know the minor is present or engages in masturbation while using the Internet, telephone, or other electronic communication device while communicating with a minor who the person knows is less than sixteen (16) years old, and the minor can see or hear the person masturbate.
In regards to motions for directed verdict, a circuit court should deny a motion for directed verdict if, based upon the fair and reasonable inferences drawn in the Commonwealth's favor, "the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty." Benham, 816 S.W.2d at 187. Additionally, the court in Benham stated that any questions as to the credibility and weight to be given to the testimony should be reserved for the jury. Id. Further, "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." Id. Finally, "the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Id at 187-88.
Here, the trial court found that the jury could infer from the testimony of Mr. Goff's daughter that the contact between Mr. Goff and his daughter was for sexual gratification. We agree.
According to the testimony of the child, Mr. Goff touched her stomach and breast prior to showing her his penis and then he asked her to move to another part of the room. Viewing this evidence in a light most favorable to the Commonwealth, these actions could induce a reasonable juror to find that the touching was done for the sexual gratification of Mr. Goff. It is up to the jury to decide what weight to give the daughter's testimony. It is clear, however, that this testimony provided more than the mere scintilla of evidence required of the Commonwealth to meet its burden on a motion for directed verdict.
Sometime after the trial but before sentencing, some unnamed person brought to the attention of Mr. Goff's attorney that a juror from Mr. Goff's trial, had expressed concerns with the result of Mr. Goff's trial while the juror was responding to voir dire questions in a subsequent, unrelated trial. As a result of this information, counsel for Mr. Goff filed a supplemental motion for a new trial. Counsel for Mr. Goff had the pertinent portions of the voir dire transcribed and the matter was presented to the trial court.
Pursuant to RCr 10.04, "A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot." In an examination of the relevant case law, it is apparent that this standard is very high. In Commonwealth v. Abnee, 375 S.W.3d 49 (Ky. 2012), the Court found that a letter from a juror was not sufficient to trigger an inquiry into whether the jury verdict was valid. In Abnee, defense counsel received a letter from a juror who informed him that the defendant's criminal record had been left out in the jury room for the jury to view. Defense counsel argued that Abnee's criminal record created a particularly unfair prejudice due to the nature of the crime charged and the nature of his prior convictions. The Abnee court found that an unsworn letter alleging jury misconduct is not sufficient and that the trial court did not abuse its discretion in denying the defendant's motion for a new trial. The court found that "a matter 'resting in the personal consciousness of one juror' may not be used to upset a jury's verdict 'because, being personal, it is not accessible to other testimony.'" Id at 54, citing Mattox v. United States, 146 U.S. 140, 135 S.Ct. 50, 36 L.Ed. 917 (1982).
Kentucky Rules of Criminal Procedure.
The situation in the present case is that Mr. Goff has presented testimony from a juror who informed the court during voir dire in a subsequent trial that she was a juror in Mr. Goff's case. The juror said that the process had left her feeling "unsettled" and that she worried that Mr. Goff might have actually been innocent. While the juror testimony in the present case was sworn before another court, it is simply a matter of a juror struggling with her personal conscious post-trial. As no statements were made by this juror indicating that the verdict was reached by lot, as required by RCr 10.04, there is simply not enough to launch an investigation into the validity of the jury's verdict, and therefore, the trial court's ruling was proper.
The transcribed statement of the juror was sworn as it was given under oath, in the voir dire phase of another criminal case.
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For the foregoing reasons, the Hardin County Circuit Court's December 2, 2013 judgment and order imposing sentence is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dwight Preston
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Ken W. Riggs
Frankfort, Kentucky