Opinion
NO. 2015-CA-000390-MR
05-20-2016
BRANDON HAWKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Richard Boling Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 13-CR-00513 OPINION
AFFIRMING BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Brandon Hawkins brings this appeal from a February 11, 2015, judgment of the Christian Circuit Court sentencing Hawkins to one-year imprisonment upon a jury verdict finding him guilty of first-degree official misconduct, third-degree sodomy, and two counts of third-degree rape. We affirm.
Hawkins was employed as a lieutenant jailer at the Christian County Detention Center and as a deputy sheriff in the Patrol/K-9 unit with the Christian County Sheriff's Department. At the detention center, Hawkins was in charge of the jail commissary.
In 2012, Angela Butler was an inmate at the detention center. Hawkins met Butler while working in the commissary, and Hawkins would give Butler free items from the commissary. Butler was granted parole on December 19, 2012, and as a condition thereon, she was required to attend and complete an in-house program at the Women's Addiction Recovery Manor (WARM) in Henderson, Kentucky.
In early 2013, while housed at WARM, Hawkins sent Butler a letter that included his phone number. Hawkins and Butler eventually began meeting and having sexual relations while Butler was a parolee at WARM. These sexual encounters occurred between March 9, 2013, and April 3, 2013, while Hawkins was on duty as a deputy sheriff. Butler ultimately left WARM without completing the program in violation of her parole. She was subsequently arrested in North Carolina for a parole violation and extradited back to Kentucky.
On October 4, 2013, Hawkins was indicted by a Christian County Grand Jury upon official misconduct in the first degree (Kentucky Revised Statutes (KRS) 522.020); hindering prosecution/apprehension in the second degree (KRS 520.130); sodomy in the third degree, and two counts of rape in the third degree (KRS 510.060). The rape and sodomy charges emanated from KRS 510.060(1)(e) and KRS 510.090(1)(e) respectively, which criminalize sexual intercourse/deviate sexual intercourse between, inter alios, an employee of a detention facility and a parolee who is under the supervision of the Department of Corrections.
Hawkins filed a motion in the circuit court to declare KRS 510.060(1)(e) and KRS 510.090(1)(e) unconstitutional. Hawkins argued that as he and Butler engaged in "consensual" sexual acts as adults, KRS 510.060(1)(e) and KRS 510.090(1)(e) were unconstitutionally overbroad for criminalizing otherwise constitutionally permitted behavior. By order entered March 25, 2014, the circuit court denied Hawkins motion and upheld the constitutionality of KRS 510.060(1)(e) and KRS 510.090(1)(e).
The case was then tried before a jury in October 2014. The jury found Hawkins guilty of first-degree official misconduct, third-degree sodomy and two counts of third-degree rape. The jury, however, acquitted Hawkins upon the offense of hindering prosecution/apprehension. By judgment entered February 11, 2015, the circuit court sentenced Hawkins to a total of one-year imprisonment to run concurrently for all four offenses. This appeal follows.
Hawkins contends that the circuit court improperly instructed the jury upon the offenses of third-degree rape (two counts) and third-degree sodomy. Specifically, Hawkins argues that the circuit court erroneously failed to include a jury instruction upon the consent provisions found in KRS 510.020 in relation to the offenses of third-degree rape and third-degree sodomy. Hawkins acknowledges that this issue was unpreserved for appellate review and argues that the erroneous instructions constitute palpable error.
The palpable error or substantial error rule is set forth in Kentucky Rules of Criminal Procedure (RCr) 10.26 and provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.To be entitled to relief, Hawkins must demonstrate that the alleged erroneous jury instructions affected his substantial rights resulting in manifest injustice. See Howe v. Com., 462 S.W.2d 935 (Ky. 1971). Our review proceeds accordingly.
Rape in the third degree is codified in KRS 510.060 and reads in relevant part:
(1) A person is guilty of rape in the third degree when:
And, sodomy in the third degree is codified in KRS 510.090 and states, in pertinent part:(e) Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010, or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to sexual intercourse.
(1) A person is guilty of sodomy in the third degree when:
Relevant to our case, a person commits the crime of third-degree rape/sodomy, if while employed by a detention facility, he has sexual intercourse/deviate sexual intercourse with a person he knows is supervised or treated by the Department of Corrections. KRS 510.060(1)(e); KRS 510.090(1)(e). Thus, the elements of third-degree rape/sodomy are: (a) a person who is an employee of a detention facility, (b) engages in sexual intercourse/deviate sexual intercourse, and (c) with an individual he knows to be supervised by the Department of Corrections.(e) Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010, or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to deviate sexual intercourse.
The jury instructions submitted by the circuit court clearly mirrored KRS 510.060(1)(e) and KRS 510.090(1)(e). The instructions submitted read as follows:
INSTRUCTION NO. 5
RAPE, THIRD-DEGREE (FOP Lodge)
You will find [Hawkins] guilty of Rape, Third-Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or between March 9, 2013[,] and April 3, 2013, and before the finding of the Indictment herein, [Hawkins] engaged in sexual intercourse with Angela Butler at the FPO Lodge;
AND
B. That Angela Butler was being supervised, evaluated or treated by the Department of Corrections;
AND
C. That Brandon Hawkins was an employee of the Christian County Jail[.]
INSTRUCTION NO. 6
RAPE, THIRD-DEGREE
(Maintenance building and/or Berghammer's Office)
You will find [Hawkins] guilty of Rape, Third-Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or between March 9, 2013[,] and April 3, 2013, and before the finding of the Indictment herein, [Hawkins] engaged in sexual intercourse with Angela Butler at the maintenance building behind the jail and/or Det. Berghammer's Office[;]
AND
B. That Angela Butler was being supervised, evaluated or treated by the Department of Corrections;
AND
C. That Brandon Hawkins was an employee of the Christian County Jail[.]
INSTRUCTION NO. 7
SODOMY, THIRD-DEGREE
You will find [Hawkins] guilty of Sodomy, Third-Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or between March 9, 2013[,] and April 3, 2013, and before the finding of the Indictment herein, [Hawkins] engaged in deviate sexual intercourse with Angela Butler at the rock quarry;
AND
B. That Angela Butler was being supervised, evaluated or treated by the Department of Corrections;
AND
C. That Brandon Hawkins was an employee of the Christian County Jail[.]
Hawkins believes that the circuit court, nevertheless, erred by not including a separate consent element, as set forth in KRS 510.020, for these instructions. Citing to KRS 510.020, Hawkins points out that lack of consent is considered an element in every sexual offense, and the circuit court erred by not including the consent provisions of KRS 510.020 in the jury instructions for third-degree rape (two counts) and third-degree sodomy.
KRS 510.020 is entitled "Lack of Consent" and provides:
(1) Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim.
(2) Lack of consent results from:
(a) Forcible compulsion;
(b) Incapacity to consent; or
(c) If the offense charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.
(3) A person is deemed incapable of consent when he or she is:
(a) Less than sixteen (16) years old;
(b) An individual with an intellectual disability or an individual that suffers from a mental illness;
(c) Mentally incapacitated;
(d) Physically helpless; or
(e) Under the care or custody of a state or local agency pursuant to court order and the actor is employed by or working on behalf of the state or local agency.
(4) The provisions of subsection (3)(e) of this section shall not apply to persons who are lawfully married to each other and no court order is in effect prohibiting contact between the parties.
It is true that the General Assembly has declared lack of consent a necessary element in every sexual offense. KRS 510.020; 4 Leslie W. Abramson, Kentucky Practice - Substantive Criminal Law § 4:33 (2015 ed.). This lack of consent on the part of the victim may occur when the victim is considered by law to be incapable of giving consent. See Stinson v. Com., 396 S.W.3d 900 (Ky. 2013).
In KRS 510.060(1)(e) and KRS 510.090(1)(e), sexual intercourse/deviate sexual intercourse is criminalized between two classes of persons. Relevant to the facts of this appeal, these two classes are an employee of a detention facility and a person who is being supervised by the Department of Corrections. In enacting KRS 510.060(1)(e) and KRS 510.090(1)(e), the General Assembly was aware that persons in the first class may have undue influence and/or hold positions of authority over those in the second class. KRS 510.060(1)(e) and KRS 510.090(1)(e) were undoubtedly designed to protect persons incarcerated and/or paroled from sexual exploitation.
Under KRS 510.060(1)(e) and KRS 510.090(1)(e), the General Assembly has decreed that a person paroled is legally incapable of consenting to sexual intercourse/deviate sexual intercourse with a person who is employed by a detention facility. The lack of consent element is included in the statutes by the plain language utilized therein. See Stinson, 396 S.W.3d 900. Thus, we conclude that KRS 510.060(1)(e) and KRS 510.090(1)(e) include the element of lack of consent and that the consent provisions of KRS 510.020 are inapplicable. See Stinson, 396 S.W.3d 900. For this reason, we further hold that the circuit court's jury instructions setting forth the offenses of third-degree rape under KRS 510.060(1)(e) and third-degree sodomy under KRS 510.090(1)(e) were not erroneous for failure to include the consent provisions of KRS 510.020. Consequently, no palpable error occurred per RCr 10.26.
Hawkins next maintains that KRS 510.060(1)(e) and KRS 510.090(1)(e) are unconstitutionally overbroad. Hawkins argues that these statutes "broadly include[s] victims and defendants that have no direct connection other than sex." Hawkins Brief at 11. Hawkins gives the following as an example of KRS 510.060(1)(e) and KRS 510.090(1)(e) overbreadth:
[A] Pepsi Delivery person (vendor) for the Christian County Detention Center . . . meets and has sex with a female on probation from Jefferson County. She says in passing that "I was in Hopkinsville to get my probation transferred to Louisville." Since she is under the supervision of the Department of Corrections and he is a vendor for the detention facility, he is guilty of Rape of Sodomy.Hawkins Reply Brief at 3.
The overbreadth doctrine permits a facial challenge to the constitutionality of a statute. 16 C.J.S. Constitutional Law § 169 (2015). Our Supreme Court has held that a criminal statute may be only attacked as overbroad upon First Amendment grounds. Stinson, 396 S.W.3d 900. In this case, Hawkins does not claim that either KRS 510.060(1)(e) or KRS 510.090(1)(e) offended any First Amendment privilege. Moreover, Hawkins never cites to any particular constitutional section or amendment that is purportedly violated by KRS 510.060(1)(e) or KRS 510.090(1)(e). Hence, we are of the opinion that KRS 510.060(1)(e) and KRS 510.090(1)(e) are not unconstitutionally overbroad.
Hawkins also asserts that the circuit court erroneously denied his motions for a new trial and for a judgment notwithstanding the verdict (JNOV). Hawkins argues that "had the jury been instructed on KRS 510.020, no juror could have found that Angela Butler did not consent to the sexual acts, or that she was not capable of consent." Hawkins Brief at 10. Again, Hawkins maintains that the jury's verdict was improper as KRS 510.060(1)(e) and KRS 510.090(1)(e) are unconstitutionally overbroad.
We have previously addressed the constitutional argument in this opinion and have concluded it to be without merit. Also, we have held that the consent provisions of KRS 510.020 are simply inapplicable to KRS 510.060(1)(e) and KRS 510.090(1)(e). For these reasons, we are unable to agree with Hawkins' argument that he was entitled to either a JNOV or new trial.
We view any remaining contentions as moot or to be without merit.
For the forgoing reasons the judgment of the Christian Circuit Court is therefore affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: Richard Boling
Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLEE: Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky