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Date: 10-05-2018
Case Style:
JAMES A. CAMPBELL V. COMMONWEALTH OF KENTUCKY
Case Number: 2017-SC-000063-MR
Judge: MEMORANDUM OPINION OF THE COURT
Court:
Plaintiff's Attorney: Thomas Allen Van De Rostyne
Assistant Attorney General
Defendant's Attorney: John Gerhart Landon
Assistant Public Advocate
Description:
Campbell’s seventeen-year-old daughter, Sarah, t went with her father to
help him go through his deceased mother’s belongings. Sarah testified that
she watched television most of the day and that her father eventually invited
her into his bedroom to watch television with him. She said the two watched
part of a movie before Campbell touched her shoulder, kissed her on the lips,
and began kissing her stomach. Sarah testified her father then removed her
pants and panties and touched her vagina with his hand. She said Campbell
kissed her vagina and she told him to stop, but that he did not. Sarah testified
that she pushed Campbell away, but that after she told him to stop, he
penetrated her vagina with his penis. Sarah stated she was scared because
she did not know what Campbell “was gonna do.” Campbell did not stop until
Sarah pushed him away again—and only after he had ejaculated.
Sarah testified that she put her clothes back on and went back to the
couch in the living room where she had spent most of the day watching
television. She testified that she did not tell her uncle (who was also in the
house) what her father had done because she was scared. She attempted to
reach her mother, but was unable to get in touch with her until the following
morning. When Sarah’s mother picked her up, she told her mother of the
incident and her mother took her to the police station and then to the hospital
1 In keeping with our protection of juvenile victims’ identities, “Sarah” is a pseudonym.
where DNA was collected from Sarah’s panties and a vaginal examination
revealed a tear.
At trial, Sarah denied that her father had expressly threatened her or
used any physical force. However, she said that she did not want to engage in
sexual activity with her father, had told him to stop, and that she was afraid he
was going to hurt her.
Campbell gave a recorded statement to police that was played at trial for
the jury. He said that he had touched Sarah inappropriately while the two
watched a movie. He admitted to touching her breasts. According to
Campbell, he asked Sarah if she wanted to stop at various points during the
sexual contact and that she indicated she did not. He said that when she told
him to stop, he did.
Further facts will be developed below as necessary to our analysis.
IL ANALYSIS
A. Directed Verdict
Campbell made a motion during trial asking the court to direct a verdict
as to the sexual abuse charge, as he alleged the evidence did not support a
finding of forcible compulsion. The trial court denied that motion, and
Campbell now appeals that decision to this Court.
This Court succinctly stated the rule trial courts must follow when faced
with motions for directed verdict in Commonwealth v. Benham, 816 S.W.2d
186, 187 (Ky. 1991):
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 juiy questions as to the credibility and weight to be given to such testimony.
Furthermore, “[o]n 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.”
Id.
Campbell admitted to police that he had touched his daughter
inappropriately. Therefore, his argument now is not that the contact did not
occur, but, rather, that there was no forcible compulsion. In order to
determine whether “it would be clearly unreasonable for a jury to find guilt,” we
will examine the statutes related to the sexual abuse charge. First, KRS
510.110 reads, in pertinent 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 . . . .” Forcible compulsion is defined by KRS 510.010(2) as
physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessaiy to meet this definition.
As noted, Sarah testified that Campbell did not expressly threaten her.
However, she also testified that her father removed her leggings and panties
without her permission and continued sexual advances after she told him to
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stop and attempted to push him away. We hold there was sufficient evidence
to survive Campbell’s motion for a directed verdict as to the sexual abuse
charge.
We recently dealt with a similar issue in Jenkins v. Commonwealth, 496
S.W.Sd 435, 446-47 (Ky. 2016). There, Jenkins was accused of raping and
sodomizing his seventeen-year-old step granddaughter. Much like the case at
bar, “Jane” testified that Jenkins had not hit her, held her down, covered her
mouth or threatened her. However, this Court held that the physical force
Jenkins used was enough for a reasonable jury to conclude it amounted to
forcible compulsion. There, we stated:
Jenkins forcibly rolled her over, removed her pajama pants, and then physically pushed aside her several attempts to block him from sodomizing her. ... A reasonable jury could have believed them acts of physical force compelling sex despite the other person’s unmistakable non-consent. They were not ‘violent’ acts, perhaps, at least not violent in the sense of clearly threatening physical harm, but ‘forcible compulsion’ does not require violence or duress or resistance by the victim. Gibbs v. Commonwealth, 208 S.W.Sd 848, 856 (Ky.2006) (discussing statutory amendments in 1988 and 1996 eliminating any requirement that the victim resist her attacker and holding that, in that case, the defendant's “act of taking [the victim's] hand and placing it on his penis” satisfied the physical force element, at least for the purpose of a directed verdict motion). See also Gordon v. Commonwealth, 214 S.W.Sd 921 (Ky.App.2OO6) (holding that testimony to the effect that the defendant pushed and held apart the twelve-year-old victim's legs in the course of sodomizing her satisfied, for directed verdict purposes, the “forcible compulsion” requirement).
Id. at 446. Just as Sarah contends in the present case, Jane continued to tell
Jenkins no and attempted to physically stop his attempts.
U
In Jenkins, we held, “|c|learly, a reasonable juror who believed Jane's
testimony to be credible could have concluded that Jenkins engaged in sexual
intercourse with her by forcible compulsion.” Id. at 447. Here, Sarah testified
her father physically removed her leggings and panties, that she told him to
stop several times, and that she attempted to push him away more than once.
Just as was the case in Jenkins, we hold that these actions were enough to
satisfy the physical force prong of the forcible compulsion definition. We hold
that a reasonable juror who found Sarah’s testimony to be credible could have
concluded that Campbell sexually abused her by forcible compulsion. That is
all that is required for the Commonwealth to survive a motion for a directed
verdict. The trial court did not err in its denial of Campbell’s motion for a
directed verdict.
Having held that Campbell’s actions satisfied the physical force prong of
forcible compulsion, we need not address his arguments related to the threat of
physical force prong of that test. However, we do reiterate the concept echoed
both by the statute and our caselaw that actual physical force is not a requisite
of forcible compulsion. In the present case, due to the actual physical force
Campbell employed, we need not address whether, from Sarah’s perspective,
Campbell forced her to engage in the charged sexual acts.
In his reply brief, Campbell argues that the Commonwealth is creating a
unanimous verdict issue through the argument in its brief on this issue.
Campbell contends that; “[i]n the context of trial and the other instructions,
and the Commonwealth’s closing arguments, it is clear which acts were
6
supposed to have supported the Sexual Abuse instruction. The
Commonwealth specifically argued that the touching of the breasts and vagina
with his hands constituted the sexual abuse instruction.” Campbell asserts
now that because, in the portion of its brief related to sexual abuse, the
Commonwealth discusses Sarah’s allegations of Campbell penetrating her
vagina with his penis, it “seems to now advance the theory that the Sexual
Abuse charge was treated as some form of lesser included offense of the Rape
charge, despite objecting to such a lesser included offense for that charge at
trial.” Campbell argues that this creates a unanimous verdict issue—as the
jury could have convicted Campbell based upon either sexual intercourse
between Campbell and Sarah or based upon Campbell touching her breasts
and vagina. However, this argument is unavailing. As Campbell admits, the
Commonwealth was clear about which events the jury should consider related
to the sexual abuse charge. He points out that the Commonwealth’s brief to
this Court is the first time it has contended otherwise. We fail to see how the
jury could have been non-unanimous based on a theory that was never
presented to it.
Campbell also argues that somehow the jury’s verdicts as to the other
charges means that a directed verdict should have been granted as to sexual
abuse. Namely, the jury found in the incest instruction that Campbell engaged
in deviate sexual intercourse with his daughter, but found him not guilty of
sodomy. This simply indicates that the jury did not find the act of deviate
sexual intercourse was completed through forcible compulsion. It does not
indicate the jury did not find other acts to have been the result of forcible
compulsion. At any rate, the jury’s ultimate verdicts have no bearing upon
whether the trial court should have granted a directed verdict on the sexual
abuse charge. That is simply not the standard.
B. Jury Instructions
Campbell next argues that the trial court erred in instructing the jury as
to the definition of forcible compulsion. The instruction read:
FORCIBLE COMPULSION—means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injuiy to self or another person, fear of immediate kidnap of self or another person, or fear of rape, sodomy, and/or sexual abuse. Physical resistance on the part of the victim shall not be necessary to meet this definition.
(Emphasis added.) This instruction differed from the statutory definition of
forcible compulsion only in the fact that it replaced the statutory phrase “any
offense under this chapter” with “rape, sodomy, and/or sexual abuse.”
Campbell argues that this instruction “allowed the Commonwealth to argue
that if there was not consent then there was forcible compulsion.” However, as
noted above, Sarah testified that Campbell removed her panties and leggings,
continued his sexual advances after she told him to stop, and ignored her
efforts to push him away. Thus, this was not a case where the victim remained
silent as to whether she consented and no force or threat of force existed, as
was the case in Miller v. Commonwealth, 77 S.W.Sd 566, 575 (Ky. 2002), which
Campbell cites to the Court. There, “[t]he prosecutor conceded at the
instructions conference that the only evidence of forcible compulsion was that
8
A.M. did not give Appellant her permission to have sexual relations with her.”
Id. Those are not the facts here, and we find Campbell’s argument unavailing.
This Court has held “[ijnstructions must be based upon the evidence and
they must properly and intelligibly state the law.” Howard v. Commonwealth,
618 S.W.2d 177, 178 (Ky. 1981). Their purpose “is . . . to state what the jury
must believe from the evidence ... in order to return a verdict in favor of the
party who bears the burden of proof.” Webster v. Commonwealth, 508 S.W.2d
33, 36 (Ky. 1974). In criminal cases, instructions “should conform to the
language of the statute,” Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky.
2006).
“Once the trial judge is satisfied that it is proper to give a particular
instruction, it is reasonable to expect that the instruction will be given
properly.” Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015) (citing Martin v.
Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013)). Because “the trial court has
no discretion to give an instruction that misrepresents the applicable law[, t]he
content of a jury instruction is an issue of law that must remain subject to de
novo review by the appellate courts.” Id. Therefore, we afford the trial court’s
decision regarding the content of the instruction no deference.
As noted, the jury instruction here only differed slightly from the
statutory language. It replaced the words “any offense under this chapter” with
“rape, sodomy, and/or sexual abuse.” In fact, the enumerated offenses are
offenses “under this chapter,” and they were offenses for which evidence was
presented. This instruction did not misstate the applicable law—rather, it just
clarified the language for the jury. The trial court did not err in presenting this
instruction to the jury.
C. For-Cause Strike
Finally, Campbell asserts that the trial court erred in failing to strike a
juror for cause. As this Court has noted, “[l]ong-standing Kentucky law has
held that a trial court’s decision on whether to strike a juror for cause must be
reviewed for abuse of discretion.” Shane v. Commonwealth, 243 S.W.Sd 336,
338 (Ky. 2007) (citing Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003);
Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002)). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
Section 11 of the Kentucky Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution guarantee the right to an
impartial jury. Kentucky Criminal Rule 9.36(1) establishes the standard a trial
court is required to apply during voir dire: “When there is reasonable ground
to believe that a prospective juror cannot render a fair and impartial verdict on
the evidence, he shall be excused as not qualified.” We have held that a trial
court must “determine the credibility of the juror’s answers based on the
entirety of the juror’s responses and demeanor.” Allen v. Commonwealth, 276
S.W.3d 768, 772 (Ky. 2008). In so doing, “The trial court has the duty to
evaluate the answers of prospective jurors in context and in light of the juror’s
10
knowledge of the facts and understanding of the law.” Stopher v.
Commonwealth, 57 S.W.Sd 787, 797 (Ky. 2001).
Here, the juror in question revealed during voir dire that two of her
sisters had accused her uncle of raping them. The sisters did not live in the
same house as the juror and the alleged abuse occurred before the juror was
born. The juror stated that she had seen the lasting impacts of the abuse on
her sisters, but that she still had a relationship with her uncle, who was never
charged for the alleged acts. When asked if she could be impartial and base
her decision on the facts presented, she responded that she could. After
reviewing the video record of voir dire, we note that her response was
unequivocal. The defense moved to strike this juror for cause. The trial court
denied the motion, stating that the juror’s demeanor did not demonstrate bias
or prejudice.
As we have held, “Rule 9.36(1) is the only standard for determining
whether a juror should be stricken for cause.” Sturgeon v. Commonwealth, 521
S.W.3d 189, 193 (Ky. 2017). The juror asserted she could do just that through
her statements. Furthermore, her demeanor did not belie her words. The trial
court was in the best position to determine if the juror in question could
conform her views to the law and render a fair and impartial verdict. We hold
that the court did not abuse its discretion in failing to strike the juror for
cause.
Outcome: For the foregoing reasons, we affirm Campbell’s convictions and their
corresponding sentences.
Plaintiff's Experts:
Defendant's Experts:
Comments: