Jordan v. Commonwealth

74 S.W.3d 263, 2002 WL 741627
CourtKentucky Supreme Court
DecidedApril 25, 2002
DocketNos. 1998-SC-0856-MR, 2000-SC-0700-TG
StatusPublished
Cited by5 cases

This text of 74 S.W.3d 263 (Jordan v. Commonwealth) 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
Jordan v. Commonwealth, 74 S.W.3d 263, 2002 WL 741627 (Ky. 2002).

Opinions

MEMORANDUM OPINION OF THE COURT

I. INTRODUCTION

A Lewis Circuit Court jury convicted Appellant of First-Degree Rape of a child under twelve (12) years of age (a Class A felony) and recommended the maximum sentence of life imprisonment. On October 2, 1998, the trial court entered judgment in accordance with the jury’s recommendation, and Appellant appeals from this judgment as a matter of right1 in [264]*2641998-SC-0856-MR. Approximately thirteen (13) months later, on November 16, 1999, the trial court entered an amended judgment identical to the original judgment except that it also ordered:

The Defendant, pursuant to KRS 532.043, shall be sentenced to three (3) years of conditional discharge following his release from incarceration upon expiration of sentence, subject to all orders specified by the Department of Corrections and all other applicable provisions of KRS 532.043.

Appellant initially appealed the amended judgment to the Kentucky Court of Appeals but subsequently moved for — and the Court of Appeals recommended— transfer to this Court, which has exclusive jurisdiction over “[ajppeals from a judgment of the Circuit Court imposing a sentence of ... imprisonment for twenty years or more.”2 We granted transfer, and in 2000-SC-0700-TG we address Appellant’s challenge to the amended judgment.

II. BACKGROUND

In February of 1997, the Lewis County Grand Jury issued a one (1) count indictment against Appellant charging him with engaging in sexual intercourse with his nine (9) year-old stepdaughter:

The Grand Jury charges: That on or about the period between May — June 1991, in Lewis County, Kentucky, the above named defendant: unlawfully committed the offense of RAPE, FIRST DEGREE, KRS 510,040, CLASS A FELONY ... when he had sexual intercourse with D.W., a person then less than twelve years of age.

At trial, the primary evidence for the Commonwealth came from the complaining witness, D.W., then seventeen (17) years of age. D.W. testified that: (1) in the summer months of 1991, she was nine (9) years old and lived with her mother and Appellant, her stepfather, in a trailer on Trace Creek in Lewis County, Kentucky; (2) on the morning in question, her mother was at work, and she woke up and went into the living room/parents’ bedroom where Appellant was watching television; (3) when she laid down on the bed to watch television, Appellant put his foot up her shirt, and when she attempted to run away, Appellant followed her, pulled her down on D.W.’s own bed and then, despite D.W.’s attempts to fight him off, got on top of her, inserted his penis in her vagina and forced her to have sexual intercourse with him; (4) the incident left her bloody and bruised and Appellant ordered her to clean up the mess, which she did; (5) she then ran to her step-grandmother’s residence and phoned her mother, but did not tell either her mother or her step-grandmother about the rape because she did not expect them to believe her; (6) in 1996, approximately five (5) years after the incident, she reported the incident to an aunt and uncle with whom she was then residing; (6) her aunt reported the incident to social services, and D.W. spoke with Pam Botts, a social worker, and Trooper Brian Bowling of the Kentucky State Police regarding the allegation.

Botts and Trooper Bowling interviewed Appellant and his wife the day after D.W. reported the incident, and each of them testified at trial that Appellant stated to Botts during the interview, “Pam, I always knew you would get me” and, although Appellant denied having sexual intercourse with D.W., he admitted that, on three or four different occasions, D.W. came into his room, climbed on top of him, and rubbed on his penis, but that he stopped things before he ejaculated. Botts further [265]*265testified that Appellant appeared hostile during the interview and that Appellant appeared uncomfortable with her presence because of her previous involvement in an investigation of an allegation of sexual abuse against D.W. by Appellant’s father.

Appellant testified in his own defense at trial and denied D.W.’s allegations. Appellant further testified that: (1) he told Trooper Bowling and Botts that D.W. had rubbed his penis because Trooper Bowling told him that he would arrest him unless he admitted to something; (2) D.W.’s version of events was impossible because, while the family did have a television at the relevant time, it did not have cable, an antenna, or a VCR, and thus no one could watch television; (3) because of a childhood accident, he suffered from an erectile dysfunction which prevented him from sustaining an erection; and (4) D.W. had a motive to lie at the time she raised these allegations because the family was preparing to move away from a location where D.W. had developed a romantic relationship.

In his defense, Appellant also emphasized alleged inconsistencies and vagueness in D.W.’s version of the events. During cross-examination, Appellant suggested reasonable doubt because of: (1) D.W.’s lack of specificity regarding the timing of this alleged incident; (2) D.W.’s inconsistent statements or lack of memory concerning the position of herself and Appellant at the time of the rape, whether Appellant removed all of her clothing, whether Appellant tore her panties, whether Appellant ejaculated, whether Appellant threatened to kill her, and whether Appellant gave her a black eye.

Appellant’s wife (D.W.’s mother) testified during the Commonwealth’s ease-in-chief, but her testimony primarily supported her husband’s defense. She verified that: (1) D.W. had a motive to invent this allegation against Appellant; (2) Appellant suffered from a form of erectile dysfunction; (3) Appellant told her after the interview with Botts and Trooper Bowling that he made up the penis rubbing stories because he would have gone to jail if he had not told them something. In addition, Appellant’s wife testified that: (1) she assisted with D.W.’s bathing during this period of time, and she never observed any of the physical injuries D.W. described; (2) D.W. had a poor reputation for truthfulness; and (3) that D.W. had partially recanted her allegations on prior occasions and suggested that Botts was “telling her what to say.”

The defendant also introduced testimony from a number of other witnesses who knew both D.W. and Appellant. These witnesses testified regarding D.W.’s poor reputation for truthfulness (and some specifically referenced D.W.’s prior accusation of sexual abuse against Appellant’s father for which no charges were brought) and explained that they observed interaction between D.W. and Appellant and never saw any indications of - estrangement. Some of these witnesses testified regarding their close relationship with D.W. and explained that D.W. never made any allegations to them concerning sexual abuse at the hands of Appellant.

Following the presentation of evidence, the jury found Appellant guilty of the indicted offense and recommended the maximum penalty of life imprisonment. The trial court entered judgment in accordance with this recommendation.

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Bluebook (online)
74 S.W.3d 263, 2002 WL 741627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-commonwealth-ky-2002.