Opinion
NO. 2014-CA-001660-MR
02-12-2016
JAMES WIRTH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 13-CR-000052 OPINION
AFFIRMING BEFORE: J. LAMBERT; MAZE, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: James Wirth appeals from the Jefferson Circuit Court's judgment of conviction and sentence for sexual abuse in the first degree. Wirth was sentenced to one year's imprisonment, the minimum sentence. For the reasons stated herein, we affirm.
On January 16, 2013, Wirth was indicted by a Jefferson County grand jury for sexual abuse in the first degree. The charges were based upon events that occurred on December 28, 2012, and involved Wirth's fifteen-year-old biological daughter, H.W.
Wirth lived with his wife, Leigh, in Louisville, Kentucky. Wirth had H.W. from a previous relationship, and had always been involved in her life. Wirth had consistently seen H.W. every other weekend, on holidays, and every summer. Wirth testified that he and H.W. were close and loved each other very much, and H.W.'s testimony was consistent with Wirth's observations.
On December 29, 2012, H.W. spent the evening at Wirth's home. Wirth testified at trial that in November 2012, he had knee surgery and that during the relevant times related to this case, he was sleeping on the couch in the living room rather than in his normal bed. It was easier for Wirth to get up and down from the couch, which was lower to the ground. On the day in question, Wirth was still recovering from surgery, and he testified that he and H.W. had an uneventful day playing video games in the living room. Leigh and H.W. decided to have a slumber party with Wirth in the living room and watch a movie, which Wirth testified was the movie "Batman." Wirth explained that everyone fell asleep watching the movie. Wirth testified that Leigh had fallen asleep on part of the sectional couch next to Wirth, but that Leigh normally slept in the recliner, and he normally slept on the sectional. On this particular night, Wirth slept on the other end of the sectional with Leigh, and H.W. fell asleep in the recliner.
Wirth testified that at approximately 12:00 a.m., he took some prescribed pain medication. Because he did not want to wait to take a second dose of medication, he took two pain pills instead of one. After taking the pain medication, Wirth did some of the physical therapy exercises that he was instructed to do. After taking the medication and doing his exercises, Wirth fell asleep on the floor. He woke several hours later and noticed feet dangling off the end of the reclining chair beside him. Wirth testified that he thought they were his wife's feet hanging off the recliner, because that is where she had been sleeping during his recovery.
Wirth and his wife, Leigh, each testified about his foot fetish. Both parties testified that they would engage in consensual sexual acts that involved Leigh's feet. Apparently, the couple had engaged in a foot fetish sexual act in the recliner on a previous occasion. On the night in question, when he saw what he thought were his wife's feet, Wirth became aroused. He placed his penis between the feet, and asked his wife if it felt good and if she liked it. When he did not get a response, Wirth pulled off the blanket and discovered it was not his wife, but his daughter sleeping in the recliner. Wirth testified he stopped, went to the bathroom, and vomited.
Wirth testified that he was unsure of whether his daughter had woken up or knew what had happened. When they all got up the next morning, H.W. did not indicate that anything was wrong or that she knew anything about what had happened. Wirth decided not to say anything to H.W. about the incident. However, Wirth did tell his wife what had happened. He and Leigh concluded that they would no longer have slumber parties in the living room and that they could no longer engage in sexual acts that involved Wirth's foot fetish. Further, they discussed that Wirth would take his pain pills as prescribed and not double up on pain medication ever again.
At trial, H.W. also testified. She remembered falling asleep in the recliner that evening, and that her stepmother, Leigh slept on the sectional couch. H.W. testified that she was awakened at approximately 5:00 a.m. by her father rubbing her feet. Wirth asked her if it "felt good." H.W. testified that Wirth spread her two largest toes apart and placed his penis between them. Wirth then again asked her if it felt good. H.W. did not respond. H.W. described that Wirth then placed his penis in between the arches of her feet. H.W. still did not respond, and Wirth stood up and lifted the blanket off H.W. and then ran into the bathroom.
H.W. testified that at this point, she looked and saw that it was 5:00 a.m. and that her stepmother, Leigh, was asleep on the couch. H.W. then laid back down in the recliner. Wirth returned from the bathroom, sat on the couch, and picked up his phone. H.W. testified that although she never saw Wirth's penis, she was sure that it was his penis that touched her feet.
H.W. told her cousin about the incident, and her cousin advised H.W. to tell her father, a police officer, what had happened. Child Protective Services (CPS) contacted Wirth, and Wirth initially agreed to speak with CPS, but then he obtained an attorney and declined an interview. The police set up taped telephone conversations between H.W. and her father, and the conversations were ultimately played for the jury. During the calls, H.W. explained to Wirth that she had been awakened by him touching her feet. H.W. asked her father why he had touched her feet with his penis. Initially, Wirth denied touching H.W. with his penis, and said he wanted to talk to her face to face. During later phone conversations, Wirth admitted to having a foot fetish and said that on the night in question, he had seen H.W.'s feet and became aroused. After he lifted the blanket and realized that the feet were not Leigh's, he went into the bathroom and got sick at his stomach. He apologized to H.W. and told her it would never happen again.
After the phone calls, Wirth was arrested and charged with first-degree sexual abuse. After both sides had presented their proof, both the Commonwealth and Wirth tendered proposed jury instructions. Wirth tendered a mistake of fact jury instruction and asked the trial court to include a definition of the term intentional in the jury instructions. Wirth argued that the jury would have to find that he intended to touch a minor's feet with his penis in order to be found guilty of first-degree sexual abuse. He further argued that Kentucky Revised Statutes (KRS) 510.110 did not address inadvertent or accidental contact.
The Commonwealth objected to Wirth's mistake instruction, arguing that an intentional touching was not required to be proven. The Commonwealth contended that it was the result of the act itself, the actual touching of H.W.s feet, that constituted the offense in this case, and that no mental state was required. The Commonwealth argued that a mistake of age defense only relates to consensual sexual relations, which would have been the case had Wirth believed H.W. was older than she was and not believed he was touching his wife's feet. Finally, the Commonwealth argued that even with a spouse there cannot be implied consent, and that in Wirth's case, the sexual contact was intentional and was not inadvertent or accidental.
Ultimately, the trial court concluded that KRS 510.110 does not include a culpable mental state. The court held that even if it were to accept Wirth's arguments, more than one culpable mental state could be possibly read into the instruction. The trial court also noted that KRS 510.110 was similar to KRS 510.040 (Sodomy in the First Degree) and KRS 510.070 (Rape in the First Degree), and neither of those statutes required a culpable mental state to commit the offense.
The jury convicted Wirth of Sexual Abuse in the First Degree and recommended a sentence of one year. The trial court followed the jury's recommendation and imposed that sentence. This appeal now follows.
On appeal, Wirth argues that he was entitled to a mistake of fact instruction and that the trial court's holding otherwise was in error. In support of this argument, Wirth argues that his jury instructions were proper and should have been utilized.
This Court's review of a trial court's jury instructions is de novo. Carver v. Commonwealth, 328 S.W.3d 206 (Ky. App. 2010). While we are cognizant of the fact that a defendant has a right to have each issue of fact raised by the evidence and exhibits submitted to the jury through proper instructions, we note that often times, jury instructions are not warranted in a particular case. See Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006). In Gabow v. Commonwealth, 34 S.W.3d 63, 72 (Ky. 2001), the Kentucky Supreme Court explained that an instruction is not warranted unless it is supported by the evidence. See also Kentucky Rules of Criminal Procedure (RCr) 9.54(1), which states that it is the trial court's duty to instruct on the whole law of the case.
Wirth argues that because his entire defense was mistake of fact, he should have been allowed to present a mistake of fact instruction to the jury. In support of this, Wirth contends that he had no intention to touch his daughter's feet and only intended to touch his wife's feet. Thus, he did not have the intent to commit sexual abuse in the first degree. Wirth argues that the surrounding circumstances indicate that his mistake was a reasonable one.
Because we do not read KRS 510.110 as requiring a culpable mental state, we disagree with Wirth. KRS 510.110 defines sexual abuse in the first degree. It states, in relevant part:
(1) A person is guilty of sexual abuse in the first degree when:
(a) He or she subjects another person to sexual contact by forcible compulsion; or
(b) He or she subjects another person to sexual contact who is incapable of consent because he or she:
1. Is physically helpless;
2. Is less than twelve (12) years old; or
3. Is mentally incapacitated; or
(c) Being twenty-one (21) years old or more, he or she:
KRS 510.110. The statute does not include a specific mens rea or state of mind element. Sexual contact is defined in KRS 510.010 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." As mentioned above, sexual abuse in the first degree is not the only statute in KRS Chapter 510 that does not expressly require a mens rea to commit an offense. Rape in the first degree (KRS 510.040) and sodomy in the first degree (KRS 510.070) also do not require a culpable mental state.1. Subjects another person who is less than sixteen (16) years old to sexual contact[.]
Kentucky courts have determined that the legislature's omission of a mental state is intended and have consistently held that a trial court does not have to include a culpable mental state when instructing the jury on these crimes. In French v. Commonwealth, 2006 WL 2987083 (Ky. 2006), the Kentucky Supreme Court addressed this very issue.
Cited pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4). --------
A review of KRS Chapter 510 (Sexual Offenses) illustrates that the drafters of the Penal Code were well aware of the potential interplay of the mental states in regard to the sexual offenses set out therein. See e.g., KRS 510.150(1) "A person is guilty of indecent exposure...when he intentionally exposes...." (emphasis added). Thus, had the Legislature intended to require a specific mental state in the offenses of rape and sodomy, as opposed to the conduct specified, they would have. Moreover, they have been free to do so for the last twenty-nine years, and have not. Their failure to do so
evidences their agreement with the results in Malone and Isaacs, supra, if not their logic.Id. at *2, citing Malone v. Commonwealth, 636 S.W.2d 647-48 (Ky. 1982), and Isaacs v. Commonwealth, 553 S.W.2d 843 (Ky. 1977). This Court has also held that KRS 510.040 does not require a culpable state of mind. See Meadows v. Commonwealth, 178 S.W.3d 527, 532 (Ky. App. 2005) ("[T]he statute for first-degree rape does not require any particular state of mind, such as intent or knowledge.").
Wirth cites to KRS 501.070 in support of his argument that he was entitled to a mistake of fact defense. That statute states:
(1) A person's ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless:KRS 501.070. Wirth contends that he was entitled to a mistake of fact instruction under KRS 501.070(1)(a) and (b). Worth concedes that the statute under which he was prosecuted, KRS 510.110(c)(1), does not expressly provide for a culpable mental state. However, Wirth argues that under KRS 501.030(2), a person cannot be found guilty of a criminal offense unless that person "has engaged in such conduct intentionally, knowingly, wantonly, or recklessly as the law may require, with respect to each element of the offense, except that this requirement does not apply to any offense which imposes absolute liability, as defined in KRS 501.050." KRS 501.050 provides that a person may be guilty of an offense absent a culpable mental state only if the offense is a violation or a misdemeanor, or is defined by a statute outside the penal code. By its own terms, KRS 501.050 does not apply to the offense of sexual abuse in the first degree, which is a Class D felony and is defined within the penal code. Thus, Wirth argues that KRS 510.110(1)(c)(1) cannot be interpreted as imposing absolute liability with respect to any element of the defined offense.
(a) Such ignorance or mistake negatives the existence of the culpable mental state required for commission of an offense; or
(b) The statute under which he is charged or a statute related thereto expressly provides that such ignorance or mistake constitutes a defense or exemption; or
(c) Such ignorance or mistake is of a kind that supports a defense of justification as defined in this Penal Code.
Wirth goes on to argue that the conduct he was convicted of necessarily involves a culpable mental state, meaning that the Commonwealth had to show he intended to touch a minor sexually. In support of this, Wirth cites to KRS 501.040, which provides that "[a]lthough no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state." Wirth contends that in the instant case, the trial court erred when it did not require the jury to determine that he had a culpable mental state. We disagree. The case law surrounding this statute and other similar statutes indicates that the conduct itself is prohibited, with or without a culpable mental state. The Kentucky Supreme Court and this Court have consistently held, in accordance with the plain meaning of KRS Chapter 510, that an instruction for a requisite mental state is not warranted or required when trying sexual assault crimes unless it is contained within the statute. See Hatfield v. Commonwealth, 473 S.W.2d 104, 106 (Ky. 1971) ("The carnal abuse of a child is a crime without regard to the reasons or the intent with which it was done.").
Wirth also argues that he was not aware that he did not have consent to touch HW's feet with his penis and did not know of H.W.'s incapacity to consent to his using her feet for his sexual pleasure, because he was not aware that he was touching a person who was less than sixteen years of age. He contends this mistake warranted a mistake of fact instruction. Wirth cites KRS 510.030 in support of this argument. That statute states:
In any prosecution under this chapter in which the victim's lack of consent is based solely on his incapacity to consent because he was less than sixteen (16) years old, an individual with an intellectual disability, mentally incapacitated, or physically helpless, the defendant may prove in exculpation that at the time he engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for such incapacity to consent.KRS 510.030 follows KRS 510.020, which states, in relevant part:
(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:
Thus, whether or not he had H.W.'s consent is not the issue. The fact that she was under sixteen years old renders her incapable of consent. As such, the physical act of Wirth touching H.W. with his penis was the crime. There is no culpable mental element to sexual abuse in the first degree, and we will not read one into the statute, absent clear intent by the Legislature and the Kentucky Supreme Court.(a) Less than sixteen (16) years old[.]
Finding no error by the Jefferson Circuit Court, we affirm the August 12, 2014, judgment and conviction of sentence.
ALL CONCUR. BRIEF FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky