IMPORTANT NOTICE NOT TO 8,E PUBLISHED OPINION
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE . PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), . · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED ' . . KENTUCKY APPELLATE DECISIONS, . - . ·. RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE BEFORE THE. COURT. OPINIONS CITED FOR CONSIDERATION -BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL ·BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE . ACTION. RENDERED: NOVEMBER 2, 2017 NOT TO BE PUBLISHED ·
foupttttu~ dtnurf nf ~mfurkll
2016-SC-000358-MR
MICHAEL RAYDUNGAN · ·APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT . ·v. HONORABLE DAVID A. TAPP, JUDGE NO. 15-CR-00018 AND NO. 16-CR-00081
COMMONWEALTH OF KENTUCKY APPELLEE
M;EMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, VACATING IN PART AND ·REMANDING
Michael Ray Dungan was convicted of one coul'1:t of third-degree rape,
KRSI 510.060; one count of incest, KRS 530.020; one count of abuse of an
adult, KRS 209.990; and three counts of first-degree persistent felony offender . I .
("PFOl"). The trial court sentenced him to a total of twenty years'.
imprisonment, and he now appeals as a matter of right. For the following
reasons, we affirm in part, vacate in part and remand for resentencing.
·1 Kentucky Revised Statutes. I. Background.
At his home on Saturday, November 2, 2013, Dungan sexually assaulted
his 36-year-old stepdaughter, J.M., who is wheelchair-bound, moderately ..
intellectually impaired, and physically disabled. . . At the time, Dungan was \
J.M.'s pr~mary caretaker; he looked after her while his wife, Janie Dungan
(J~M.'s biological mother), worked. J.M. has progressive cerebellar ataxia; her
condition has gradually worsened throughout her life. She has a low IQ,
attended special education classes while in school, and requires assistance
·using the restroom, taking baths, and eating.
On the day in question, J.M.'s aunt (Dungan's sister-in-law), Bobbie Jo
Helton, arrived at the Dungan residence to' borrow a movie .. Bobbie Jo lives
next door to the Dungans.· At Dungan's triaJ, Bobbie Jo testified that no one
answered when she knocked on the door, which she said was unusual. She
knocked again and again no one answered. Bobbie Jo stated she then opened
the door and hollered; still no one answered. Bobbie Joe entered the home and
observed J.M slumped down in her wheelchair iri Dungan's bedroom, where
J.M. normally does not go. J.M. was turned sideways, facing the bed. Dungan
· emerge.d from the bedroom, pulling up his shorts. Bobbie Jo stated that
neither he, nor J.M., said anything to her. Bobbie Jo turned and left
Bobbie Jo contacted her niece (J.M.'s sister), Erin Wolf, about the·
incident; Erin reported it to J.M.'s motj:ier, Janie, the next morning. When
Dungan returned home from church that morning, Janie and Erin confronted
him. Janie told· Dungan, "You've done it again and you're leaving" and packed
2 up his clothing. Erin called the police.· Dungan told Janie what had happened
was her fault because she would not go to church with him. Janie replied that
he was going back to jail, to which Dungan responded that he did not need jail,.
he needed therapy, because he was sick. Dungan then grabbed a knife and
threatened to kill himself. About that time, the police arrived and arrested
him;
Erin took J.M. to the hospital to be examined. A sexual assault kit was
conducted; the. external genital swab performed on J.M. was. later confirmed to
contain semen, and the Advanced Y-STR analysis of the external genital swab
matched Dungan and his paternal relatives, making it 2,141 times more likely
that the DNA came from Dungan or one of his male paternal relatives than
froni a random caucasian male. The only other two males in Dungan's family
were his son and his nephew. Testimony at trial revealed that neither was in
the area on or around November 2, 2013.
Later, .Erin took J.M. to meet with a forensic investigator· in Russell
County. J.M. testified at trial that she recalled this interview and stated that
she. told the investigator the truth. However, J.M.'s trial testimony was
inconsistent with what she had told the for.eri.sic investigator. At trial, J.M.
testified that she remembered the police coming to her home and that
afterwards Dungan did not live with them anyrpore. She testified. that Dungan
never touched her with his privates~ nor had she ever seen his privates .. She
did not remember Bobbie Jo almost catching them right before he stopped
living with them. She stated she remembered going with Erin to the forensic
3 investigator and that she told the investigator the truth, which was that
Dungan had touched her. She ~as asked by defense counsel.if she told the
police that Dungan did not touch her, and J.M. said, "but he did."
Over defense's objection, the Commonwealth played portions of J.M.'s
recorded interview with the forensic investigator. Because J.M.'s trial
testimony was inconsistent with statements she had made to the forensic
investigatq,r, v the Commonwealth . sought to impeach her using the recorded
interview. J.M. told the forensic investigator .that Dungan had "put his thing iJ:l
her'' by putting her on the bed, standing up and pulling, down his pants. He
then "put his thing . in her crotch" and told J.M. that he did not want her to get .
pregnant. J.M. said that Bobbie Jo almost caught them before the police came.
J.M; explained that she did not want her dad to find out that she was talking (
and she did not want this to happen to anyone else. She knew what had
happened was dirty, and was afraid that her parents would get divorced if
people found out.
To elicit this testimony from J.M., the Commonwealth undel"Went a ·
lengthy process of playing the question asked by the forensic investigator,
pausing the video, asking J.M. if she was asked the question, and, when J.M;
said no, playing her recorded answer. On cross-examination, defense asked
J.M. if Dungan put his thing inside her, and she said it was between her legs
because he was afraid she would get pregnant.
Also over· defense's objection, ·Dungan's 1992 statement, wherein he
admitted to sexually assaulting J.M., was admitted through Dom Acciardo, a \
4 retired KSP trooper. who investigated allegations of sexual misconduct involving·
Dungan in the early 1990's. At defense's request, the trial court admonished
the jury to consider the statement only as it tends to prove, o~ disprove, lack of
mistake, opportunity, common scheme or plan, motive, and state of mind.
Dungan testified in his defense, claiming that the semen found on J.M. 's.
genitals .could have been transferred from the bedsheets where he and Janie '\. had sex the·night before.· Dungan denied sexually assaulting J.M., and - ' . . explained that because she had been complaining about her pants being on
backWard, he had come into the bedroom, stood her up, pulled her pants
down, put her on the bed, pulled her pants off, slipped them back on, stood h~r
up, and put her back in the wheelchair. He said he was in the process of
folding laundry when he heard a knock on the door, and that his shorts got
hung up on J.M.'s wheelchair as he passed by to answer the door. He
explained that was the reason, he was_pulling up his pants when Bobbie Jo saw )
him.
The defense introduced evidence that at aprior plea colloquy in this
case, to complete. the plea, Dungan said "one thing led to another and he
ejaculated on J.M." But because Dungan refused to admit fo having sexual
intercourse with J.M., the Commonwealth rescinded the plea offer.· On the
·stand, Dungan also admitted to pleading guilty to sexual abuse involving J.M.
in the 1990's.. Dungan claimed he signed the 1992 statement to protect his
family from the scrutiny of a trial.
5 At the close of the Commonwealth's case-in-chief and at the close of all
the evidence, defense moved for a directed verdict on the third-degree rape and
incest charges on grourids that no evidence of penetration had been presented.
The Commonwealth responded that the jury could reasonably infer that when ..
J.M.· said Dungan "put his thing in her" that penetration had occurred. The .
Commonwealth further pointed out that the presence of Dungan's sperm on
the external genital swab ofJ.M,. was evidence of sexual contact, from which . . the jury could draw its _own conclusions. The trial court denied Dungan's
motions for a directed verdict, noting that any penetration, howeyer slight, was
· sufficient. Defense also objected to the jury instruction with respe.ct to abuse
of an adult, and requested that a definition be included for "sexual abuse." The
trial court overruled defense's objection and declined to define "sexual abuse."
Ultimately, the jury convicted Dungan of third-degree rape, incest, and
abuse of an ·adult. During sentencing, the ju:ty heard evidence that in 1994,
Dungan pled guiltY to two counts of third-degree rape, and received a 30-
month prison sentence. In 2007, Dungan pl~d guilty to first-degree trafficking
in" a controlled substance (cocaine}, firearm enhanced, and received a 15-year
sentence. Dungan was on parole for this conviction in November 2013.
Dungan testified that he was not guilty of any of these crimes. The jury found
him guilty of PFO 1, and recommended five "years for rape, enhanced to 15 years
by the.PFOl conviction; five years for incest, enhanced to 15 years; and ten
years for abuse of an adult, enhanced to 15 years, for a total recommended
6 sentence of 45 years. The trial court sentenced Dungan to the maximum 20
years''imprisonment .. On appeal, Dungan raises four claims of error.
II. Issues on appeal.
a. The convictions for third-degree rape and abuse of an adult subjected Dungan to double jeopardy. _ Durigan argues that his convictions for third-degree rape and abuse of
an a_dult violated the constitutional and statutory prohibition against double
jeopardy. We review these two related issues in turn.
i. Constitutional protections against double jeopardy.
. Though Durtgan failed to raise this issue before the trial court, "the
constitutional protection against double jeopardy is not waived by failing to
object at the trial level." Kiper v. Commonwealth, 399 S.W.3d 736, 740 (Ky.
2012) (internal quotations and citation omitted). Accordingly, Dungan's
constitutional double jeopardy argument is properly before us.
The Doµble Jeopardy Clause of the Fifth Amendment to the United
States Constitution prohibits convicting or punishing a person. twice for the
same offense. It ·guarantees that no person shall "be subject for the same
offense to be twice put in jeopardy of life or limb[..]" U.S. Const. Amend. V.
Likewise, Section 13 of Kentucky's Constitution includes a virtually identical
provision and affords similar pr:otections as those guaranteed by the Fifth
Amendment.
'fhe jury convicted Dungan: of third-degree rape and abuse of an adult
under the following instructions:
Instruction No. 5 (Rape, 'fhird-Degree) _ 7 You will find the Defendant, Michael Ray Dungan, guilty of Rape, Third-Degree, under this Instruction if, and only if, you believe from the evidence beyond a -reasonable doubt, all of the following: A. That in this county, on or about November 2, 201.3, and before the finding of the Indictment herein, he engaged in sexual intercourse with [J.M.]; AND B. That at the time of.such intercourse, [J.M.] was an individuaI with an intellectual disability.
Instruction No. 7 · (Abuse of an Adult) You will find the Defendant, Michael Ray Dungan, guilty of Abuse of an adult under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all .of the following: A. That in this county, on or around November 2, 2013, and before the finding of the Indictment herein, he ·knowingly sexually abused [J.M.]; AND \
B. That when he did so abuse [J.M.], she was eighte~n (18) years of age or older, and because of her mental and physical dysfunctioning, she is unable to manage her own resources, cany out the activity of daily living, or protect herself form neglect, exploitation, or a hazardous or abusive situation without the assistance of others, and who may be.in need of protective services .. ·
To determine whether a violation of the constitutional double jeopardy
provision occurred, we typically employ the Blockburger same-elements test:
"whether the act or transaction complained of constitutes a violation of two
· distinct statutes and, if it does, if each statute requires proof of a fact the other
does not. Put differently, is one offense included within another?"
Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) (internal citation
omitted) (adopting the test set forth in Blockburger v. U.S., 284 U.S. 299, 304,
52 S.Ct. 180, 76 L.Ed. 306 (1932)). KRS 510.060 provides, in relevant part, "A
8 person is guilty of rape in the third degree when: (a) He or she engages in
sexual intercourse with another person who is incapable of consent because he
or she is an individual with.an intellectual disability[.]" Rape in the third
degree is a Class D felony. KRS 510.060. With respect to the abuse of an
adult charge, KRS 209.990.(2) provides, ''A person who kno~ingly abuses or
neglects an adult is guilty of a Class C felony."
Both third-degree rape and abuse of an adult require an element that the
other does not. Third-degree rape. requires sexual intercourse, which abuse of
.· an adult does not. And abuse of an adult requires the element of knowing
sexual abuse and neglect of a protected adult under KRS Chapter 209, as set
forth in Instruction .7(B), which third-degree rape does not. Hence, convictions
for both third-degree rape and abuse of an adult do not violate the Blockburger ·
test.
ii. St~tutory double jeopardy.
How~ver, Dungan's convictions for both charges are also subject to
analysis under Kentucky's codification of the Blockburger test, KRS 505.020 et
seq. See Kiper, 399 S.W.3d at 741 (while Blockburgertest will most often be
controlling analysis, it is not the exclusive.method for evaluating potential
double jeopardy violation). Since Dungan did not raise the issue of a statutory
double jeopardy violation below, we will review his unpreserved claim for
palpable error; that which affects the substantial rights of a party and results
9 in manifest injustice. RCr2 10.26. "Manifest injustice". authorizes review of
unpreserved errors when "the error so" seriously affected the fairness, integrity,
or public reputation of the proceeding as to be 'shocking or jurisprudentially
intolerable."' Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015) (citation
omitted). r
KRS 505.020 allows prosecution for multiple offenses· arising from a
single course of conduct, but ~KRS 505.020(l}(c) qoes not permit such
· prosecution if the offense is designed to prohibit a continuing course of \ conduct and the defendant's course of conduct was uninterrupted by legal
process, unless the law expressly provides that specific periods of such conduct
constitute separat~ offenses." Welborn v. Commonwealth, 157 S.W.3d 608, 612
(Ky. 2005). This statutory.restriction ensures that "a defendant may not be
convicted of multiple crimes when there was but one course of.,.. conduct and a .
single mens rea." Kiper, 399 S:W.3d at 743.
Dungan urges that the jury was presented with only. one "act" of his
penis being placed in or near J.M.'s crotch, and that single act was
uninterrupted by legal process. He asserts that convicting him of rape and
abuse of an adult is no different from convicting him of rape and sexual abuse, '
which this Court found violated double jeopardy in Johnson v. Commonwealth,
~64 S.W.2d 266 (Ky. 1993). In that case, we observed that first-degree sexual
abuse is a lesser-included offense of first-degree rape, and that the instruction
2 Kentucky Rules of Criminal Procedure.
10 for sexual abuse, couched in general terms of "sexual contact" without
differentiating the act from. the act constituting rape, permitted the jury to find
the defendant guilty twice of the same act, e.g., intercourse constituting rape
and intercourse constituting sexual contact and, therefore, sexu·al abuse. Id.
at 277.
Here, evidence was presented that Dungan "put his thing inside J.M.,"
. "put his thing in her crotch," and "put it between her legs." Lab results from
an external genital swab performed on J.M. revealed the presence of Dungan's
semen. The jury instructions defined "sexual intercourse" as occurring "upon
any penetration, however slight." The jury convicted Dungan of third-degree ' rape, which means it found from the evidence that Dungan penetrated J.M.
The jury's guilty verdict on the sexual abuse of an adult charge reflects its
finding that Dungan engaged in general sexual abuse, which may or may not
have inclu4ed penetration, since the term "sexual abuse" was not defined in
the jury instructions. Since the instructions failed to differentiate the act of
sexual abuse from the act constituting rape, the jury was essentially permitted
to find Dungan guilty twice of the same act; ,
With respect to whether .the act was "uninterrupted by legal process," the
record is unclear as to the exact duration of the act, but showed that it
occurred on one occas.ion on November 2, 2013 . .The Commonwealth has
attempted to parse out discrete acts of Dungan's unbroken course of conduct
toward the same victi:Q:i, but no evidence was presented of any break in the
sequence of events between Dungan penetrating J.M. and Dungan placing his
11 penis between her legs, if in fact both occurred. It ~ppears to have been a
single course of conduct. Therefore, under KRS 505.020(l)(c), Dungan could
. not be charged with both third-degree rape and abuse of an adult arising from the same course of conduct and directed at the same victim.
The remedy for a violation of double jeopardy is to maintain th~ more
severe conviction and vacate the lesser offense. ·Clark v. Commonwealth, 267
S.W.3d 668, 678 (Ky. 2008). Thus, we vacate Du;ngan's conviction for third-
degree rape (the lesser offense). His conviction for abuse of an adult stands.
Due to our holding, and the terms of the final sentencing order, remand is
appropriate. Pursuant to the final sentencing order, the trial court sentenced
Dungan to 20 years' imprisonment: 5 years on third-degree rape (enhanced to
15 years by PFOl); 10 years for incest (enhanced to 15 years by PFOl); and 10
years for. abuse of an adult (enhanced to 15 years by PFOl). ·The trial court ran
the 15-year sentence for third-degree rape partially consecutive and partially . ( concurrent to the 15-year sentence for incest, for a total of 2,0 years. The court
ran the 15-year sentence for abuse of an adult concurrent with that 20-year
sentence for a total of 20 years. The trial court'_s sentencing decision was
unquestionably premised ori Dungan's conviction and sentence for third-degree
rape. Considering our ruling, justice requires that the trial court reconsider its
final sentencing options under the circumstances as they evolve from further
proceedings on remand.
12 · b. The Commonwealth's impeachment of J.M. was proper.
Dungan maintains that the Commonwealth's method of impeaching J.M.
·with her prior inconsistent statements to the forensic investigator was
improper, since the Commonweaith failed to establish.the.necessary
foundation. ·At trial, Dungan objected to the admission of J.M.'s statement to
the forensic investigator on hearsay grounds. The trial court allowed the
statement to come in under KRE3 613, which Dungan argued was prejudicial.
KRE 801A(a)(l) provides that_ "[a] statement is not excluded by the
hearsay rule, even though the declarant is available as a .witness, if the
declarant testifies at the trial or hearing and is .examined concerning the
statement, with a foundation laid as required by KRE 613, and the statement
is: (1) Inconsistent with the declarant's te~timony[.f'.
KRE 613(a) provides:·
(a) Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circum~tances of time, place, and persons present, as ·correctly as the examining party can present them; . and, if it be in writing, it must be shown to the · witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that ·the impeaching party has acted in good faith.
3 Kentucky Rules of Evidence.
13 \
Once J.M.'s in-court testimony contradicted her statements to the
· forensic investigator, the Commonwealth asked her if she remembered her
conversation with the inve::?tigator, which she stated she did. The
Commonwealth played !he tape of certain questions asked by the investigator,
and asked J.M. if she rernembered them. Then, the Commonwealth played her
answers, and asked J.M. if she recalled answering as such. The
Commonwealth asserts that in doing so, it laid the proper foundation for
introducing J.M.'s prior inconsistent statements. The Commonwealth
concedes the process was difficult, and J.M. was embarrassed and
understandably confused, but asserts that it made a good faith effort to comply
with typical impeachment procedures.
Dungan cites to Noel v. Commonwealth, 76 S.W.. 3d 923 (Ky. 2002), in
support of his argument that strict compliance with the foundation
requirements should have been enforced in this case. Noel involved a child
victim who made an allegedly inconsistent statement to a family member, and
this Court held that the family member could not testify as to that inconsistent
statement because the child victim had not been asked whether she made the
statement. Id. at 930. In other words, the Commonwealth in Noel failed to lay
the foundation for impeachment using the prior inconsistent statement. Here,
· the Commonwealth established, through J.M.'s tesµmony, that she
participated in the interview with the forensic investigator and laid the· proper
foundation for introducing her prior inconsistent· statements.
14 Admittedly, the impeachment process was difficult, as one might expect
in examining someone with an intellectual disability. Our review of the record,
however, reveals that the Commonwealth made a good faith effort to comply
with KRE 6I3 and laid a sufficient foundation to admit J.M.'s prior
inconsistent statements. We find the portions of the video that were played
were relevant to the issues at hand, and did not result' in undue preJ~dice to .
Dungan so as to require reversal.
c. Admission of evidence of Dungan's prior sexual assault of J.M. was proper.
Dungan claims the trial court abused its discretion by admitting his
I992 statement, wherein he admitted sexually abusing J.M. Before trial, the
Commonwealth gave notice of its intent to introduce evidence of the I 992
statement arid the resulting conviction. Dungan objected. The trial court
admitted the I 992 statement, but admonished the jury that the statement was . . only to be considered for the limited purpose of proving lack of mistake,
opportunity, GOmmon scheme or plan, or motive. The trial court prohibited the
Commonwealth from introducing evidence of Dungan's resulting conviction for
third-degree rape.during the guilt phase. Dungan now maintains that under
the KRE .403 balancing test; the probative value of the I992 statement was ,/
outweighed by the prejudidal effect, and therefore the trial court abused its
discretion by admitting it. ' . We review a trial court's evidentiary rulings for an abuse of discretion.
Goodyear Tire & Rubber Co. v. Thompson,. I I S.W.3d 575, 577 (Ky. 2000). An abuse of discretion occurs if ~he trial coµrt's ruling is "arbitrary, unreasonable, I5 unfair, or unsupported by sound legal principles." Commonwealth v. English,
993 S.W.2d 941, 945 . (l{y. - 1999). .
KRE 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is
not admissible to. prove the character of a person in order to show conformity
therewith." However, such evidence is admissible if offered for another
purpose, "such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident[.]" In determining the
admissibility of KRE 404(b) evidence, the court is to focus on three issues: (1)
relevance, (2) probativeness, and (3) prejudice. Harp v. Commonwealth, 266
S.W.3d 813, 822 (Ky. 2008).
Clearly, Dungan's 1992 statement is relevant: he admitted committing a
similar sexual ·act against the same victim. Specifically, in his statement
Dungan admitted:
This is what h~ppened as J.M. was getting ready for bed she was naked and I may have touched her breast +back while getting her to bed. We both laid down together I though (sic) about doing something, .. I may have. rolled over and put it (penis) between her legs but I didn't put my penis inside of her. I rubbed her vagina area with my fingers and put them inside of her. I think I have a problem officer and I need counciling (sic). We were in J.M.'s bedroom when this occurred, on Aug. 31, 1992.
This Court has held that "evidence of similar acts perpetrated against the
same victim are almost aiways admissible[.]" Harp, 266 S.W.3d at 822. In the
case at bar, evidence of Dungan's previous sexual assault of J.M. was relevant 1
. . to disprove his defense that the semen discovered on J.M.'s genitals resulted
from the transference of semen from his bedsheets to her labia. The statement 16 also tended to prove intent, opportunity, and absence of mistake or accident.
While introduction of the statement was prejudicial to Dungan, that prejudice
was substantially outweighed by its probative value.
Based on our review_ of the record, the Commonwealth gave proper notice (
of its intent to introduce evidence of Dungan's 1992 statement, the trial court
did not abuse its discretion in admitting the evidence, and the jury was
properly admonished as to how it should consider the evidence presented.
Accordingly, no error occurred.
· d. The trial court properly refused to· grant Dungan a directed verdict as to third-degree rape and incest.
At the close of the Commonwealth's case-in-chief and at the dose of all
the evidence, Dungan moved for a directed verdict on 'third-degree rape and
incest, arguing that the Commonwealth fajled to present any evidence of
penetration. The trial court denied both motions. Dungan now claims the trial
court's ruling was erroneous.
"On 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."
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). In assessing the (
. weight of the evidence, co'l.1:rts are required to draw all fair and reasonable
inferences from the evide.nce in favor of the Commonwealth. Id. Courts must
also be mindful that the credibility and weight to be given the testimony are
questions for the jury exclusively. Commonwealth v. Sawhill, 660 S.'W~2d 3, 5
(Ky. 1983). 17 Dungan was charged with the offense of third-degree rape, KRS 510.060,
and incest, KRS 530.020, both of which require proof of "sexual interqourse."
"Sexual intercourse occurs upon any penetration, however slight[.]" KRS
510.010(8). Circumstantial evidence can support a finding of penetration.
Jones v. Commonwealth, 833 S.W.2d 839, 8.41 (Ky. 1992).
J.M. testified that Dungan put his penis in her "crotch,'' and she told the
forensic investigator the same thing. The fact that Dungan's semen was only
found on.J.M.'s external genitals, and not inside her vagina, does not render
the jury's finding of penetration unreasonable. As the Commonwealth points
out, J.M.'s statement that Dungan "put it between her legs" supports a
reasonable inference of penetration. J.M.'s testimony, combined with the
discovery of Dungan's semen on her genitals more than supports an inference
of penetration. Therefore, the trial court properly denied Duhgan's motions for
directed verdict. Moreover, because Dungan does not dispute that J_.M. is his·
stepdaughter, the trial court also properly refused to grant a directed verdict on
the incest charge.
III. Conclusion.
We vacate Dungan's conviction for third-degree rape, but affirm on all
other grounds. This case is hereby remanded to the trial court to resentence
Dungan considering our ruling.
All sitting. All concur.
18 COUNSEL FOR APPELLANT:
Emily Holt Rhorer Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
· Andy .Beshear Attorney General of Kentucky
Megan K. George Assistant Attorney General Office of the Attomey Gep.eral