Opinion
NO. 2012-CA-000830-MR
03-15-2013
JOSEPH MAZIARZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jason A. Hart Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 11-CR-00189
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Appellant, Joseph Maziarz was convicted of first-degree attempted rape following a jury trial and received a sentence of five years' imprisonment. On appeal, Maziarz argues that the trial court erred by: (1) failing to instruct the jury on fourth-degree assault; (2) allowing a witness to testify upon the ultimate question of guilt; and (3) permitting his status as a convicted felon to be admitted into evidence. We affirm.
Maziarz and Hanna Parker, the daughter of the victim, Shawna Parker, have two young children and formerly resided with Shawna Parker and her ex-husband. In 2011, Maziarz and Hanna ended their relationship. On July 1, 2011, the children spent the night at Shawna's residence in Berea, Kentucky, while Hanna was visiting her new boyfriend in North Carolina. Shawna and the children fell asleep in the living room after watching a movie. Maziarz came to the residence at approximately 2 a.m. on July 2, 2011. Shawna stated that Maziarz seemed sad and upset over Hanna. Maziarz told Shawna that he had not seen the children in a long time and wanted to just sit with them. Shawna allowed Maziarz into the residence. Shawna went into her bedroom to sleep and left Maziarz with the children. A few minutes later, Maziarz knocked on Shawna's door and told her that he was leaving and would pick the children up the next day.
After lying in bed for several minutes and believing Maziarz had left, Shawna went to sleep in the living room with the children. When she came out of her room, Maziarz grabbed her by the neck and dragged her back into the bedroom. Shawna took a handgun from her nightstand and tried to shoot Maziarz, but she could not cock the gun because her hand was pinned beneath her. Shawna hit Maziarz with the gun. During the struggle, Maziarz took the gun from Shawna and hit her with it on her forehead. Then Maziarz pulled down the front of Shawna's dress and kissed her breast. He stuck his fingers in her vagina and attempted to penetrate her with his penis.
The incident awakened the children and they came to the bedroom screaming and crying. Maziarz and Shawna continued to struggle and wrestled upon the floor. Maziarz pointed the gun at Shawna, told her not to touch the children. He then went outside to the porch. Shawna called her boyfriend and son on the telephone. While outside on the porch, Maziarz called the police and claimed that Shawna had sexually assaulted him. When the police arrived, Officer Bobby Edwards questioned Maziarz outside. Maziarz told Officer Edwards that Shawna had threatened his children and tried to sexually assault him at gunpoint. Officer Edwards stated that Maziarz seemed nervous and excited and smelled of alcohol. Maziarz remained with other officers while Officer Edwards interviewed Shawna inside the residence. Officer Edwards stated that Shawna seemed visibly upset and was crying and did not smell of alcohol. Officer Edwards called for further investigation and no arrest was made at the scene. Maziarz was transported to the police station for his own safety after Shawna's boyfriend and other family members arrived. Following an investigation, Maziarz was arrested later that day.
The Madison County Grand Jury indicted Maziarz on charges of first-degree attempted rape and first-degree sexual abuse. The Madison Circuit Court conducted a jury trial on the charges. At trial, Maziarz maintained that he and Shawna had an on-going consensual sexual relationship and that she pulled a gun on him after he refused to continue having consensual sex with her. Shawna denied any sexual relationship with Maziarz. The jury found Maziarz guilty of first-degree attempted rape and recommended a sentence of five years' imprisonment. The trial court entered judgment accordingly on June 12, 2012. This appeal followed.
Maziarz first argues that the trial court erred by refusing to instruct the jury on fourth-degree assault as a lesser-included offense of first-degree rape. We disagree.
Fourth-degree assault is not a lesser-included offense of first-degree rape. Meadows v. Commonwealth, 178 S.W.3d 527, 532-533 (Ky.App. 2005). This Court stated:
Fourth-degree assault requires proof of "physical injury." But physical injury is not an element of rape. The Kentucky Supreme Court has held that second-degree assault is not a lesser included offense of first-degree rape precisely because physical injury is an element of the former offense but not the latter. The same reasoning would apply to fourth-degree assault. Also, when it is not based on the use of a deadly weapon or dangerous instrument, fourth-degree assault requires proof that the defendant acted "intentionally or wantonly" in causing the physical injury. In contrast, the statute for first-degree rape does not require any particular state of mind, such as intent or knowledge. Because fourth-degree assault cannot be established by proof of the same facts or less than all of the facts needed to establish first-degree rape, it cannot be a lesser included offense of first-degree rape.Id. (Internal citations omitted). Therefore, under Meadows, we conclude that the trial court properly refused to instruct the jury on fourth-degree assault.
Maziarz next argues that the trial court erred by allowing Officer Edwards to identify Shawna as the victim because this statement indirectly conveyed an opinion on the ultimate issue of guilt. Maziarz concedes that this issue was not properly preserved, but requests review for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
RCr 10.26 states:
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 determine whether an error is palpable, "an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different." Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011).
A witness may not offer an opinion on the ultimate question of a defendant's guilt or innocence. Bussey v. Commonwealth, 797 S.W.2d 485-486 (Ky. 1990). The testimony at issue is as follows:
Commonwealth: Was there anything that you noticed about Ms. Parker that you found to be inappropriate or inconsistent with being the victim?
Officer Edwards: No.
We cannot conclude that this testimony constituted an opinion as to Maziarz's guilt. Officer Edwards was simply describing the appearance and demeanor of Shawna at the time he arrived on the scene. Even assuming the testimony was given in error, we cannot conclude that it rose to the level of palpable error given the entire circumstances of the case. Maziarz admitted on direct examination that Shawna did not sexually assault him or threaten his children. We are convinced that the result of the trial would not have been different.
Finally, Maziarz argues that the trial court erred by allowing the Commonwealth to introduce evidence that he was a convicted felon. Again, he requests palpable error review under RCr 10.26.
Kentucky Rules of Evidence (KRE) 609 states:
General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which the conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.The testimony at issue is as follows:
Commonwealth: Did you realize at the time when she was telling you what you had done that being a convicted felon might have been a big problem?
Maziarz: No, ma'am.
We cannot conclude that any palpable error occurred. No details of the conviction were elicited. While the issue perhaps could have been more artfully presented, Maziarz's status as a convicted felon would have been admissible under KRE 609 regardless. Further, contrary to Maziarz's suggestion, KRE 404(b) is not implicated because there is no indication that evidence of the felony conviction was offered to prove that he acted in conformity therewith on a particular occasion.
Accordingly, the judgment of the Madison Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: Jason A. Hart
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky