Opinion
NO. 2018-CA-000566-MR
01-10-2020
THOMAS JAGGERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gary S. Logsdon Brownsville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON FAMILY COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 16-CR-00040 OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND LAMBERT, JUDGES. LAMBERT, JUDGE: Thomas Jaggers has directly appealed from the final judgment of the Edmonson Circuit Court convicting him of attempted rape, sexual abuse, burglary, wanton endangerment, and resisting arrest, and sentencing him to a total of ten years' imprisonment. We affirm.
In June 2016, the Edmonson County grand jury returned a multi-count indictment against Jaggers related to his actions against D. D. on April 12 and 13, 2016, when he refused to leave her house, sexually abused her, and attempted to rape her. He was also indicted for his actions against responding officer Detective Wally Ritter. As to his actions against D.D., Jaggers was charged with one count of first-degree attempted rape (Kentucky Revised Statutes (KRS) 510.040); five counts of first-degree sexual abuse (KRS 510.110); one count of first-degree burglary (KRS 511.020); and second-degree criminal mischief (KRS 512.030). As to Det. Ritter, Jaggers was charged with one count each of third-degree assault (KRS 508.025); first-degree wanton endangerment (KRS 508.060); resisting arrest (KRS 520.090); and third-degree terroristic threatening (KRS 508.080). Jaggers entered a not guilty plea at his arraignment, and a jury trial was scheduled.
The jury trial began on October 30, 2017. Just prior to the trial date, the Commonwealth filed a motion in limine regarding text messages Jaggers had recently provided in reciprocal discovery. The parties discussed that motion as well as an amended indictment tendered by the Commonwealth in chambers before the trial started. The court held a hearing on the Kentucky Rules of Evidence (KRE) 412 issue to determine admissibility of this evidence as it went to consent. The court ruled that several of the text messages, assuming they could be properly authenticated, were admissible.
The first witness to testify was Pat Prunty, a representative of 911. Through his testimony, the Commonwealth introduced three 911 calls from D.D. made on April 13, 2016, at 12:28 am, 12:38 am, and 12:44 am. D.D. said in the calls that Jaggers was in her house and would not leave or stop touching her. She told the 911 operator that he was "drunk as a dog." She could repeatedly be heard to tell another person with her to stop touching her and to turn her loose.
Det. Ritter of the Edmonson County Sheriff's Office testified next. He responded to the call for a trespass complaint at D.D.'s house. While on the way there, he was notified that an assault was taking place. He arrived at 12:46 am. He could hear screaming from inside the house when he got out of the car. He looked through the door and opened it. He saw D.D. and Jaggers on the floor engaged in a struggle. She was on her back but trying to crawl away from Jaggers. She had a top on, and her shorts were pulled down to around her knees. Jagger was on his knees leaning forward between her legs. He had one hand on her vagina and the other hand was on her leg. D.D. was screaming and asked Det. Ritter for help. Det. Ritter drew his handgun as he approached the door. Jaggers did not have an obvious weapon and was wearing his underwear only. Det. Ritter ordered Jaggers to stop, which he did not do, and he used his baton to hit Jaggers multiple times. Jaggers continued to grab at D.D. as she crawled away. Det. Ritter hit Jaggers with a baton on the back of his leg. Jaggers then rolled onto his back, pulled his knees up, and prepared to kick him. Jaggers kept trying to get back to D.D.
Det. Ritter knew he had to separate Jaggers from D.D., who was upset and crying. He kicked Jaggers twice in the abdomen and hit him on the forearm with the baton after he tried to reach for him. Det. Ritter handcuffed Jaggers, cleared the residence, and called EMS for Jaggers in case he had been injured. Jaggers kept trying to get back to D.D.. Det. Ritter put Jaggers on D.D.'s front porch, which had a four-foot drop-off. He positioned Jaggers on his knees with his legs crossed. When Det. Ritter leaned in the door to tell D.D. what he was doing, Jaggers managed to stand up. He would not get back on his knees. He almost chest-bumped Det. Ritter while his back was facing the porch drop-off. Det. Ritter attempted to administer pressure points to get Jagger back to the floor; this did not work. He then delivered a knee strike to the side of Jaggers' thigh, which also did not work. Jaggers kept pushing Det. Ritter toward the drop-off until the Detective had one foot off the porch. Det. Ritter told Jaggers he would put him on the concrete if he did not stop. If Jaggers had knocked Ritter off the drop-off, there was a good chance the detective would have been knocked out and lost control of the situation. Det. Ritter ultimately knocked Jaggers off the porch and onto the concrete sidewalk, rendering him unconscious. Det. Ritter began rendering first aid, and EMTs arrived after that. Jaggers had a laceration on his head, which was bandaged by another deputy who had responded. Jaggers regained consciousness and continued to be belligerent.
Jaggers was transported to the hospital, and Det. Ritter rode with him in the ambulance while other officers stayed to photograph the scene. Jaggers kicked Det. Ritter in the ambulance and threatened to kill him. They struggled both during the trip to the hospital and after they arrived. Jaggers was tied to the hospital bed, and a spit bag was placed over his head. At one point, Jaggers grabbed Det. Ritter's holster. Nurses tried to perform a sexual assault kit on Jaggers. Jaggers was given a sedative, after which he fell asleep around 5:00 or 6:00 am. Det. Ritter transported Jaggers to the jail after he was released from the hospital. Det. Ritter interviewed D.D. about what had happened, wrote case reports, and later presented the case to the grand jury. On cross-examination, Det. Ritter stated that the incidents at the hospital took place in Warren County; no charges had been filed as to those actions.
D.D. testified next. Jaggers is married to her first cousin, and she has known him since the 9h grade. She said she had never really liked him. She had not spoken to him very much before the incident in 2016. She said she made contact with Jaggers earlier that year when she dialed the wrong telephone number while trying to call her uncle. She and Jaggers began talking, and they communicated through telephone calls and text messages. The nature of their communications was sexually explicit. In the beginning, she was interested in having a sexual relationship with him. She was lonely after her divorce. However, D.D. decided that she did not want to start a relationship with Jaggers because he was married to her cousin.
D.D. explained what happened the night of April 12/April 13. She said a man appeared at her door a little after 10:00 pm. She opened the front door and realized it was Jaggers. He had never been to her house before. Jaggers came into the house and said he wanted the vodka that was on her couch. She said she had consumed two shots of vodka from the bottle prior to his arrival. Jaggers grabbed her breast when he walked in the door, but she thought it might be an accident. She poured vodka in a styrofoam cup for Jaggers, and he spilled the drink on the floor and the couch. Jaggers grabbed at her and rubbed her with his hands when they were on the couch. D.D. tried to ignore him by watching the television. He then began lunging on her. Jaggers reached up her shorts and touched her butt. She fought against Jaggers and tried to push his hand away. D.D. said she first called 911 "pretty quick." She did not remember when she made the second and third calls. She called the first time when he refused to leave her house when she asked him to. The grabbing then got worse. Jaggers grabbed her feet while she was on the recliner, pulled her off, and began humping her. The police then arrived and told Jaggers to stop and get off her.
D.D. said she drank a total of three shots of vodka that night; Jaggers finished the half-gallon bottle of vodka. She went to the hospital, and on the way there she called Jaggers' wife to tell her that he had attacked her. She had a rape kit performed at the hospital, and her father picked her up from the hospital. Jaggers had been to her prior homes when she was married; he had never been to this one, where she had been living for about two years. It had been twenty years since she had seen him. D.D. went on to describe how this incident had impacted her life. She said she covers her windows and does not turn on her lights at night. She was terrified, and she described her mind as "warped."
On cross-examination, D.D. was asked about when she first initiated contact with Jaggers, and she again said it happened when she dialed the wrong number. She did not dispute that they were texting back and forth sexually explicit messages. She said she had been drinking since her divorce and that she said things when she had been doing so. She said she still did not like Jaggers but "played the game." Their relationship had ended "long before" April 12, but she did not know the date. D.D. did not recall texting or calling Jaggers on April 12. She acknowledged the text message to him where she said she had started drinking. She also acknowledged that she had left voice messages for Jaggers, which were played for the jury. She said she was probably drunk on some of the messages. She admitted that she had been leading Jaggers on, or "playing the game."
D.D. had not expected Jaggers to come to her house that night; she would have put on makeup and not changed her clothes or taken off the wig she had been wearing that day. He was supposed to call her first, but she clarified that this was for another day. She said Jaggers had two, 16-ounce glasses of vodka. Then he drank from the bottle and finished it. She could not tell if Jaggers was drunk when he arrived. She thought he got drunk while he was there from the vodka she provided him. She said she stopped drinking when Jaggers started pawing at her, but then said he was pawing at her from the time he entered the house. She said even if she had been "playing the game" up until then, she begged him to stop. D.D. admitted that she had consented to and invited Jaggers to have sexual relations with her through explicit telephone calls and text messages. She said she "played the game" but that she ended it when she told him she and his wife were cousins. She told him to call if he planned to come to her house so that she would be ready to stop it. Jaggers did not do this and crossed the line with her.
On redirect examination, she agreed that the voicemail messages were all dated April 3 and were sent when she was drinking. This was at a time she was considering a relationship with Jaggers.
The last witness to testify for the Commonwealth was Edmonson County Sheriff Shane Doyle. He responded to the call at D.D.'s residence after he was notified Det. Ritter was involved in a use-of-force incident. Upon his arrival, he saw another deputy rendering first aid to Jaggers. He went in the house and saw some furniture had been pushed around. He took photographs of the scene after talking with Det. Ritter. He collected D.D.'s clothing at her house after she changed.
The parties entered into a stipulation, during D.D.'s testimony of the results of the rape kit, that no DNA from Jaggers was found on D.D. or her clothing, and no DNA from D.D. was found on Jaggers' clothing.
The Commonwealth closed its case, and it moved to dismiss one of the counts of sexual abuse, leaving four counts remaining. The court granted a directed verdict on the fifth count, and it permitted the indictment to be amended to correct the dates of the offenses against D.D. Jaggers moved for a directed verdict of acquittal on the charges based on the totality of the evidence presented in the Commonwealth's case. The court denied the motion.
Jaggers chose to testify in his own defense. He is married and has two adult children. Prior to April 12, Jaggers and D.D. had been communicating through text message and telephone calls. He said they were "working up to a relationship." Jaggers called her on the morning of April 12. She did not answer but texted him back in the evening. She told him to go to his half-brother Steve's house and then come to her house. Jaggers went to Steve's house for about an hour and then went to her house around 10:00 pm.
Jaggers then told the jury his version of what happened after he arrived at D.D.'s house. He said he and D.D. sat on the couch, and they began drinking and talking. He had two glasses of vodka and drank from the half-gallon bottle after that. There was foreplay and "talking dirty." He said D.D. went into some state around the time she made the first 911 call. He could not leave because he was too drunk, and he did not have his cell phone with him to call for a ride. He remembered her making three 911 calls. He did not remember trying to "hump" her and denied trying to penetrate her. Jaggers recalled the officer arriving when he was on the floor and D.D. was on the couch. The officer came through the door and began hitting him with his baton. He tried to defend himself and shield his face from being hit. The officer rolled him onto his stomach and handcuffed him. He was not able to get up because he had too much to drink. The officer dragged him out of the door and threw him off the porch onto the sidewalk on his head. He did not remember anything until he woke up in the jail. He had a cut over his eye and had a broken nose and leg. He had other injuries on various parts of his body. Jaggers continued to deny all of the charges against him. He had not spoken with or had any contact with D.D. after this date, with the exception of the time she and Det. Ritter came to his house.
On cross-examination, Jaggers admitted the text message from D.D. asking him to go to Steve's house was dated April 4. There was not a text message asking him to do this on April 12.
At the close of the defense's case, Jaggers renewed his motion for a directed verdict, which the court denied. Jaggers objected generally to the jury instructions to preserve his rights.
At the conclusion of the trial, the jury was instructed on the charges and provided with definitions of legal terms. It was also instructed the jury on an intoxication defense. For the attempted rape charge, the court instructed:
Although you might otherwise find the Defendant guilty of Attempted Rape in the First Degree, if at the time, after removing his pants and D.D.'s pants, got on his knees between her legs, he was so drunk (intoxicated) that he did not have the intention of committing a crime, you shall find him not guilty under those instructions.For the burglary charge, the court instructed:
Although you might otherwise find the Defendant guilty of Second-Degree Burglary, if at the time he remained in the dwelling of D.D. without her permission or that of any other person authorized to give such permission he was so drunk (intoxicated) that he did not have the intention of committing a crime, or was so drunk that he did not know he did not have said permission, then you shall find him not guilty under those instructions.After deliberating, the jury found Jaggers guilty of attempted rape, three counts of sexual abuse, second-degree burglary, first-degree wanton endangerment, and resisting arrest. It found him not guilty on one count of sexual abuse, third-degree criminal mischief, third-degree assault, and terroristic threatening. After the penalty phase, the jury recommended one-year sentences on the sexual abuse convictions; five-year sentences on the attempted rape, burglary, and wanton endangerment convictions; and a twelve-month sentence and a $250.00 fine on the resisting arrest conviction. It recommended the five-year sentences for the attempted rape and burglary convictions to run consecutively and the remaining sentences to run concurrently for a sentence totaling ten years. A final judgment was entered on March 21, 2018, and this appeal now follows.
On appeal, Jaggers presents two arguments. First, he argues that the jury's verdicts did not conform to the weight of the evidence regarding the intoxication instructions. Second, he argues that the circuit court erred in denying his motion for a directed verdict of acquittal on the first-degree wanton endangerment charge.
For his first argument, Jaggers contends that the jury's verdicts on the attempted rape and second-degree burglary charges were against the weight of the evidence that he was too intoxicated to intend to commit those crimes. The Commonwealth points out that Jaggers failed to properly preserve this issue for review by filing a motion for a judgment notwithstanding the verdict or include any specific grounds for relief in his motion and renewed motion for a directed verdict pursuant to Kentucky Rules of Civil Procedure (CR) 50.01. Furthermore, Jaggers failed to show where in the record and how this issue was preserved or to seek palpable error relief. Our review of the trial record and Jaggers' appellate brief establishes that the Commonwealth was correct in its observations.
Even on the merits, however, Jaggers' argument must fail. As the Commonwealth argues in its brief, "[w]hen there is proof to support a raised defense, it is the jury's prerogative, not the court's or Commonwealth's, to consider all of the evidence and decide whether to accept or reject it." King v. Commonwealth, 513 S.W.3d 919, 925 (Ky. 2017). The jury has the prerogative to accept or reject a defense. See Caudill v. Commonwealth, 777 S.W.2d 924, 926 (Ky. 1989) ("Appellant did not deny the act, but asserted a defense of consent, which the jury was free to reject[.]")
The jury in the present case clearly rejected Jaggers' intoxication defense. The Commonwealth explained this rejection as follows:
[Jaggers] provided testimony that he drank an impressive amount of alcohol. However, he was also able to provide a detailed account of the events that led up to the attempted rape and his arrest. He was able to recall topics of conversation, where he and Ms. D.D. were positioned at various stages of the night, Ms. D.D.'s calls to police, and that Ms. D.D. became "hysterical" and was "scaring" him. He recalled Det. Ritter arriving and
striking him, his attempts to protect himself from Det. Ritter's strikes, and Det. Ritter throwing him off the porch. He testified that he was physically unable to leave the premises, but he understood what he was doing. He did not allege he blacked out. The only allegations of memory loss was after he fell off the porch, which occurred after the attempted rape. His testimony supports that he was drunk, but also that he remained in control of his mental functioning. Thus, it was not unreasonable for the jury to reject [Jaggers'] intoxication defense.We agree with this description of the evidence and find no error in the jury's verdicts.
For his second argument, Jaggers asserts that the trial court erred when it denied his motion for a directed verdict of acquittal on the wanton endangerment charge. Again, the Commonwealth argues that Jaggers failed to state any specific grounds for his directed verdict motion, only referencing the totality of the circumstances and insufficient evidence.
CR 50.01 provides:
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.In Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), the Supreme Court of Kentucky set out the rule for directed verdicts:
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.
(Citation omitted.) KRS 508.060(1) provides that "[a] person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person."
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.
Here, the trial court instructed the jury that it would find Jaggers guilty of first-degree wanton endangerment if it believed beyond a reasonable doubt that "he chest bumped Det. Wally Ritter to the edge of the porch of D.D.'s residence[,]" which wantonly created a substantial danger of death or serious physical injury to him and manifested extreme indifference of the value of human life. Jaggers argues that it was unreasonable to conclude that his chest-bump and struggle with Det. Ritter created a risk of substantial injury or death because the office had "displayed his ability to handle and physically manage [him]" and "had control of all of his faculties, unlike the beaten, handcuffed and intoxicated [Jaggers.]" Jaggers also argued that Det. Ritter could have mitigated the impact of a fall and accepted the risk and responsibility of handling him.
First, we agree with the Commonwealth that Jaggers did not adequately preserve this error by providing specific grounds for a directed verdict on this charge. Merely referring to the "totality of the circumstances created by the evidence" and insufficient evidence is not enough. See Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004). And even if we were to review the merits, this argument must fail. Det. Ritter testified that Jaggers continued to chest-bump him and back him towards the drop-off from the porch, until he was able to subdue him. Had Jaggers successfully pushed him off the porch, Det. Ritter very well could have suffered injuries such as Jaggers himself did, including broken bones, lacerations, and a head injury. Therefore, we hold that the trial court properly denied the motion for a directed verdict on the charge of wanton endangerment and permitted the jury to decide this charge.
For the foregoing reasons, the judgment of the Edmonson Circuit Court is affirmed.
JONES, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Gary S. Logsdon
Brownsville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James P. Judge
Assistant Attorney General
Frankfort, Kentucky