Commonwealth v. Cox

837 S.W.2d 898, 1992 Ky. LEXIS 119, 1992 WL 212063
CourtKentucky Supreme Court
DecidedSeptember 3, 1992
Docket90-SC-618-DG
StatusPublished
Cited by14 cases

This text of 837 S.W.2d 898 (Commonwealth v. Cox) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cox, 837 S.W.2d 898, 1992 Ky. LEXIS 119, 1992 WL 212063 (Ky. 1992).

Opinions

STEPHENS, Chief Justice.

Appellee, Kenneth Cox, was convicted in the Menifee Circuit Court of four counts of rape in the third degree (KRS 510.060(l)(b), sexual intercourse between a person being 21 or more years of age with a person less than 16 years of age), and one count of sodomy in the third degree (KRS 510.-090(l)(b), deviate sexual intercourse by a person being 21 years of age or more with a person less than 16 years of age) and was sentenced to serve five years of imprisonment.

[899]*899The Court of Appeals reversed, holding that the Commonwealth failed to produce sufficient corroborating evidence to support the accusations made by the prosecu-trix, in order to “cause reasonable minds to believe her over [the appellee].” Finding further ground for reversal, the Court of Appeals ruled that the trial court erred when it denied defense counsel the opportunity to cross-examine Commonwealth’s witness, Randy Patrick, concerning his alleged probation on a misdemeanor conviction. The appellee asserted throughout the trial, that the prosecutrix had had sexual encounters with Patrick, who was a neighbor, and a friend, of the Cox’s household.

We remand the case to the trial court for a retrial on all the issues, for the reasons that follow.

The Commonwealth contends that the Court of Appeals erred in ruling that: (1) an accusation of a sexual offense must be supported by corroborating evidence; (2) the evidence was insufficient to support the conviction; and (3) cross-examination of a Commonwealth’s witness concerning his probation for a misdemeanor conviction was improperly denied.

According to testimony of the fifteen-year-old prosecutrix, the appellee, her stepfather, engaged in sexual intercourse with her on six separate occasions. The appel-lee was charged and convicted on five counts. These events the prosecutrix alleged, began in September of 1988, and ended on March 17, 1989.

At trial the prosecutrix claimed that the first incident took place in September, 1988, on her mother’s waterbed, after she drank alcohol offered by the appellee, though detail concerning the alcohol was omitted in her Grand Jury testimony. The prosecu-trix further alleged that during this incident the appellee also placed his mouth upon her breasts and upon her genital region. During the second incident in October, 1988, the prosecutrix testified that before the appellee engaged in sexual intercourse, he touched and kissed her, and placed his hands in her pants. At this moment the prosecutrix claimed her stepbrother and sister entered the front room of the Cox residence, and saw the appellee with her on a couch, a fact corroborated by both her siblings during the trial.

The prosecutrix specifically dated the last two incidents as happening on March 10th and 17th of 1989. During the former incident, the appellee allegedly engaged in sexual intercourse with the prosecutrix on a couch, while her mother was in Morehead shopping. The final occasion, the prosecu-trix alleged, took place in a parked truck off a gravel road, when the appellee and the prosecutrix were returning from an excursion taken to buy some movies for the VCR.

Allegations of the sexual abuse initially aired when the appellee confronted the prosecutrix at the Patrick’s front door. The prosecutrix was at the Patrick’s house on the evening of March 24,1989, after her mother and the appellee became engaged in a disagreement that culminated in the pros-ecutrix, her sister, and her mother going to the Patrick’s house as a refuge.

The prosecutrix, her mother, and Lisa Patrick, testified that the appellee, after asking the girl to give him a light for his cigarette, said, “Would you tell our little secret?” When the prosecutrix answered, “Yeah, go ahead,” and the appellee failed to respond, the prosecutrix then called her mother to the door and asserted that sexual encounters between the appellee and her had occurred.

The examining doctor at the emergency room where the victim’s mother took the prosecutrix after learning of the alleged abuse, testified at trial, that he found the girl’s hymen no longer intact, a condition defined as “marital introitus.”

Another doctor, the regular family physician, testified that beginning in December of 1988, he had treated the prosecutrix for a peptic ulcer, a condition he said that developed “from emotional trauma or emotional stress.” He also testified that the prosecutrix told him, when he was taking her medical history, that she had had sexual intercourse on two prior occasions with her boyfriend in January and June of 1988.

[900]*900The Commonwealth contends that the trial court properly denied defense counsel’s motion for a directed verdict, and that the testimony of the prosecutrix was not so improbable as to require corroborating evidence. See Carrier v. Commonwealth, Ky., 356 S.W.2d 752 (1962). In Carrier, supra, a pre-penal code opinion, this court found the rape victim’s uncorroborated story was insufficient to sustain a rape conviction when her actions, “in light of ordinary rules of behavior,” before and after the alleged offense, indicated no such abuse took place, i.e. the story of the victim was “intrinsically improbable.”

The appellee claims, as the Court of Appeals found, that the evidence was insufficient to support the rape conviction, according to Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983), and Carrier, supra, because the only other evidence submitted to substantiate the charges, other than testimony of the victim herself, were: (1) the prosecutrix’s previous ulcer condition, (2) her marital introitus condition, and (3) the fact that her stepbrother and sister testified that they saw her with the appellee on the couch, as she had claimed earlier during the trial.

An analogous opinion to the case at bar is Bussey v. Commonwealth, Ky., 797 S.W.2d 483 (1990), where the appellant, convicted of sexually abusing a profoundly retarded man, claimed entitlement to a directed verdict, pursuant to Sawhill, supra. Further substantiating his claim the appellant in Bussey, supra, relied on Holland v. Commonwealth, Ky., 272 S.W.2d 458 (1954), a case involving the sexual abuse of small children. In Holland, supra, we said:

‘[If] circumstances ... [are] so incredible or improbable or so at variance with natural laws or common human experiences as to be patently untrue,’ a directed verdict should be given. Bussey, supra, at 484, quoting Holland, supra, at 459.

Bussey, supra, like this case, analyzes the propriety of the trial court’s denying a directed verdict motion when the appellant contends that the victim’s account is improbable. The test on appellate review of a trial court’s denial of a directed verdict motion is whether under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Commonwealth v. Benham,

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Commonwealth v. Cox
837 S.W.2d 898 (Kentucky Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
837 S.W.2d 898, 1992 Ky. LEXIS 119, 1992 WL 212063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cox-ky-1992.