Opinion
NO. 2015-CA-001508-MR
01-27-2017
FRANK H. HICKS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey R. Prather Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 13-CR-00693 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Frank H. Hicks appeals from a Fayette Circuit Court judgment entered September 10, 2015, imposing a sentence of seven years after a jury found him guilty of one count of knowingly abuse of an adult. Hicks argues that he was entitled to a directed verdict due to an insufficiency of the evidence. We affirm.
Hicks had been employed as a certified nursing assistant at Cambridge Place, a nursing home, for about one year. On April 4, 2013, he was driving home from a family visit in Chicago when he was contacted by the scheduling supervisor at Cambridge Place to ask whether he could come to work because the home was short-staffed. He agreed and arrived at work at approximately 12:30 a.m. At some time between 12:30 a.m. and 1:00 a.m., one of the residents, Bertha Medley, alerted the nurses' station that she needed something. Medley was eighty-six years of age at the time, and suffered from diabetes and dementia. She shared a room with another resident.
Hicks told the others at the nurses' station that he knew what Medley wanted and would take care of her. Apparently, it was usual practice for Medley to have a late-night snack. Hicks gave snacks to Medley and another resident.
Later, between 2:00 a.m. and 2:30 a.m., Carol Young, the acting nurse supervisor, was making her rounds. Evidence was presented at trial that a rumor had gone around the nursing home that Nurse Young and Hicks had dated in the past. Nurse Young confronted Hicks about it on several occasions; she was very upset and her manner was described as loud and boisterous but Hicks denied the rumor and laughed it off.
When Nurse Young went into Medley's room to check her oxygen, she noticed that the privacy curtain had been pulled. Pulling the curtain was the routine procedure when a nursing assistant was changing a resident's protective undergarment. Nurse Young did not turn on the lights when she entered the room because there was sufficient light coming from the bathroom and hallway to check the oxygen concentrators. When she went around the curtain, she saw that Hicks was crouching over Medley. She described Medley as lying sideways across the bed with her legs up and held by Hicks near his chest. Nurse Young said Hicks was grinning and intent on Medley, but when he saw Young he repositioned himself and immediately tried to leave the room. Nurse Young asked him if Medley was sliding or had fallen out of bed, and he replied that she had. Nurse Young turned on the lights so that she and Hicks could put Medley in her bed. With the lights on, she could see an erection through Hicks's pants and that his belt was hanging open. She confronted Hicks and told him to wait for her by the nurses' station. She checked quickly on Medley, who said she was fine, and determined that she did not need emergency attention. When she went to the nurses' station, Hicks had already left without clocking out.
Nurse Young called the director of nursing, and then she and Medley's nurse, Andrew Elam, returned to Medley's room to perform a more thorough assessment. When they questioned Medley, she stated that she had been receiving "therapy" on her bottom. They found her vaginal area was red, irritated and moist; she complained of pain in her bottom and left side. Nurse Young sat with Medley until she could be transported to the hospital. Nurse Young noticed an open and empty packet of lubricant next to a fresh spot of undried lubricant on Medley's bedside table. She picked up the packet before realizing that she should not have touched it. She placed the packet in a bag for the police.
Medley was evaluated in the emergency room at the University of Kentucky Hospital by Anita Capello, a sexual assault nurse examiner. Her examination of Medley revealed a tear at the bottom of her vagina which was fresh and still bleeding. Nurse Capello testified that the tear would have most likely been caused by blunt force consistent with penetration. She also testified that it could have been caused by a scratch of a fingernail and that the genital area of a woman Medley's age is very fragile and easily damaged. She also testified that the diffuse redness in the area could be typical of an elderly woman with low estrogen who uses adult protective undergarments. Nurse Cappello did not rule out the possibility that perineal care could have caused the injury, although she thought it unlikely. Nurse Capello also collected samples and standards for a sex assault kit. The samples were tested at a forensic lab and Hicks was excluded as a contributor. The police collected clothing, samples, and standards from Hicks, but this physical evidence did not show that he had sexually assaulted Medley. The police also found latex gloves under the edge of the bed. Testing found Medley's DNA on the gloves, but not Hicks's.
According to Hicks, Medley informed him that she was wet so he closed the privacy curtain and removed her protective undergarment. Hicks placed the soiled item in the bathroom trash can, and then washed her off. No soiled undergarments were found in Medley's bathroom or the trashcan at the nursing home. Debbie Minor of adult protective services took photos to document the absence of dirty undergarments. At trial, Hicks testified that although he disposed of the wet undergarment in the trash can in the bathroom, he then took the entire trash bag out to the trash bag on his cart. There was another clear trash bag in the can under the one he took out, so when the photographs were taken of the bathroom trash can, there was an empty clean bag in it.
Hicks testified that he turned Medley diagonally on the bed, because he is left-handed, and that she had both feet on the bed so she could raise her bottom up. According to Hicks, at that moment Nurse Young entered the room. He confirmed that Medley's legs were up to his chest. He also stated that he could see through the curtain when someone entered the room from the hall. Hicks's first trial ended in a mistrial. He was retried and convicted. This appeal followed.
Kentucky Revised Statutes (KRS) 209.990(2) provides that "[a]ny person who knowingly abuses or neglects an adult is guilty of a Class C felony." "Adult" is defined as "a person eighteen (18) years of age or older who, because of mental or physical dysfunctioning, is unable to manage his or her own resources, carry out the activity of daily living, or protect himself or herself from neglect, exploitation, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services[.]" KRS 209.020(4). "Abuse" means "the infliction of injury, sexual abuse, unreasonable confinement, intimidation, or punishment that results in physical pain or injury, including mental injury[.]" KRS 209.020(8).
Hicks argues on appeal that he was entitled to a directed verdict because there was insufficient evidence that he ever committed sexual abuse against Medley.
A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal[,] i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.Acosta v. Commonwealth, 391 S.W.3d 809, 817 (Ky. 2013) (quoting Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky. 1978)).
"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). The evidence presented by the prosecution must be more than a mere scintilla. Id. at 188.
Hicks argues that we should adopt a standard used in some federal circuits which requires "substantial evidence" to support the nonmoving party's case in order to defeat a motion for a directed verdict. The standard to which Hicks refers is applied in civil cases. See e.g. Millers Mut. Ins. Ass'n of Ill. v. S. Ry. Corp., 483 F.2d 1044, 1046 (4th Cir. 1973). In criminal cases, the federal standard is similar to Kentucky's:
To uphold the denial of a motion for a judgment of acquittal [in a federal criminal prosecution], the evidence does not have to exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt; instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt.75A Am. Jur. 2d Trial § 898 (citing United States v. Medina-Martinez, 396 F.3d 1 (1st Cir. 2005), cert. denied, 544 U.S. 1007, 125 S. Ct. 1955, 161 L. Ed. 2d 786 (2005); United States v. Simmons, 470 F.3d 1115 (5th Cir. 2006), cert. denied 551 U.S. 1147, 127 S.Ct. 3002, 168 L. Ed. 2d 731 (2007); United States v. Lopez-Medina, 461 F.3d 724, 71 Fed. R. Evid. Serv. 50, 2006 FED App. 0321P (6th Cir. 2006); United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006), cert. denied, 550 U.S. 938, 127 S.Ct. 2249 (Mem), 167 L.Ed.2d 1097 (2007); United States v. Hernandez, 433 F.3d 1328 (11th Cir. 2005), cert. denied, 126 S. Ct. 1635, 164 L. Ed. 2d 346 (U.S. 2006)).
Hicks contends that the sexual assault kits obtained from Medley and himself prove that he never assaulted her because there were no findings of his or her DNA on the other person. He also points out that the gloves found in the room did not have DNA on them that matched his, and the open packet of lubricant did not have identifiable fingerprints. He contends that, at most, the evidence supports a finding of attempted knowing abuse of an adult.
In our view, the evidence in this case was more than sufficient to defeat a motion for a directed verdict, and did not require the jury to pile inference upon inference as alleged by Hicks in reliance on Briner v. General Motors Corp., 461 S.W.2d 99, 102 (Ky. 1970).
Although Hicks's DNA was not recovered from Medley and Medley's DNA was not recovered from Hicks, there is no requirement that a perpetrator must deposit DNA on a victim in order for a jury to make a finding of sexual abuse. The felony of "sexual abuse" of a person who is physically helpless or mentally incapacitated requires only a finding of "sexual contact," which 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 510.110(1)(b); KRS 510.010(7). Thus, the absence of DNA is not automatically exculpatory. The "absence of DNA does not necessarily mean the perpetrator was not in contact with the crime scene or victim. Similarly, the absence of a victim's DNA on a perpetrator or his property does not mean there was no contact between the two." Bedingfield v. Commonwealth, 260 S.W.3d 805, 811 (Ky. 2008) (quoting People v. Dodds, 344 Ill.App.3d 513, 279 Ill.Dec. 771, 801 N.E.2d 63, at 68 n. 2 (2003) citing Comment, Motions for Postconviction DNA Testing: Determining the Standard of Proof Necessary in Granting Requests, 31 Cap. U.L.Rev. 243, 264 (2003)). The jury may make reasonable inferences from the evidence. "The effect of excluding the movant by an absence of his DNA on the item tested must also be weighed in light of the facts in a given case." Bowling v. Commonwealth, 357 S.W.3d 462, 470 (Ky. 2010), as modified on denial of reh'g (Mar. 24, 2011). In this case, there was no question as to the identity of the alleged perpetrator, nor was there any requirement that DNA be recovered in order to prove an element of the offense.
Evidence was presented that Nurse Young found Hicks crouched down on the far side of Medley's bed, and observed Medley was lying sideways with her legs up and held by Hicks near his chest. When Hicks saw Nurse Young, and stood up, his belt was hanging open and the nurse could see that he had an erection. He fled after she confronted him. When questioned, Medley stated that she had been receiving "therapy" on her bottom. Her vaginal area was red, irritated, and moist, and she complained of pain in her bottom and left side. An empty pack of lubricant was found on her bedside table. The hospital examination by Nurse Capello found a fresh tear at the bottom of Medley's vagina, most likely caused by blunt force trauma consistent with penetration.
A jury is entitled to draw all reasonable inferences from the evidence and its findings will be sustained on appeal if there was competent and relevant evidence affording a reasonable and logical inference or conclusion of a definite fact. Moore v. Commonwealth, 462 S.W.3d 378, 388 (Ky. 2015). The jury was entitled to give credibility and weight to the testimony of Nurse Young and Nurse Cappello because "[w]itness credibility is distinctly within the province of the jury." Ratliff v. Commonwealth, 194 S.W.3d 258, 269 (Ky. 2006), as modified (July 28, 2006). "For the purpose of ruling on the motion [for a directed verdict], 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." Benham, 816 S.W.2d at 187. There was ample testimonial and physical evidence when viewed as a whole to conclude that it was not unreasonable for the jury to find Hicks guilty of knowingly abuse of an adult.
The judgment of the Fayette Circuit Court is affirmed.
COMBS, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey R. Prather
Frankfort, Kentucky