IMPORTANT NO~'ICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPRE1f1E COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED ANA SHALL NOT BE CITED OR USED AS AUTHORITYINANY OTHER CASE INANY COURT OF THIS STATE. RENDERED : AUGUST 24, 2006 NOT TO BE PUBLISHED
"Sixprrms Courf of '~ 2005-SC-000722-MR
PAUL AMBURGEY APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT V. HONORABLE EDDY COLEMAN, JUDGE NO. 01-CR-0001-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Paul Amburgey, was convicted of two counts of rape in the first
degree by a Pike County Circuit Court jury. Appellant was sentenced to twenty years
on each count, to be served concurrently . This appeal is as a matter of right.'
Appellant asserts that there was insufficient evidence presented by the Commonwealth
and that he should have had a directed verdict of not guilty . Appellant moved for a
directed verdict at the close of the Commonwealth's evidence in chief and again at the
close of all the evidence, thereby preserving the issue for our review. Specifically,
Appellant contends that the testimony of an eight-year-old child is legally insufficient to
establish his guilt beyond a reasonable doubt.
' Ky. Const. § 110(2)(b) . 2 Pate v. Commonwealth , 134 S.W.3d 593 (Ky. 2004). On June 18, 2004, Social Services removed eight-year-old S.J ., the rape
victim in this case, from her home due to her biological parents' involvement with drugs.
She was placed with her maternal aunt, Dottie Amburgey, who was married to
Appellant . S.J.'s younger brother, C.J. (age 3), and an infant, E .J., were also placed in
Appellant's home. On November 30, 2004, the Kentucky State Police (KSP) received a
report from the Children's Hospital in Cincinnati, Ohio, that S .J . had been treated for
injuries that were consistent with a sexual assault . The officer who initially responded to
the hospital's report used a rape kit to collect swab samples from S .J for laboratory
examination .
At a later time following S .J .'s hospital visit, KSP officers were informed by
Appellant's wife that on November 29, 2004, she noticed the victim "walking funny ."
This prompted Appellant's wife to ask S .J . what was wrong. S .J . told her that she hurt
herself on the preceding Friday by inserting a screwdriver into her vagina because she
thought her aunt, Appellant's wife, no longer loved her. Upon hearing this information,
Appellant and his wife took S.J . to the children's hospital in Cincinnati, Ohio, for
treatment .
On the same day that the KSP received the report from the children's
hospital in Cincinnati, a search of the Amburgey residence was conducted . The search
was videotaped and evidence was collected for laboratory examination . The evidence
retrieved included a black plastic bag containing bloody clothing of the victim, several
screwdrivers, and a sheet located on the kitchen floor. In addition, an air mattress
positioned at the foot of Appellant's bed was examined by police officers. The victim
had been known to sleep on the air mattress on occasion. Following the search of the residence, KSP Detective Billy Hall
interviewed Appellant and his wife . Both denied any involvement in S .J .'s injuries, and
maintained that the victim purposely inserted the screwdriver into her vagina . Also,
Appellant's wife informed Detective Hall that there were bloody items located in a trash
bag on the front porch that she alleges S.J . placed there . Appellant denied any direct
knowledge of the injury to SJ's body.
More than a week after the search of the residence, Appellant's wife
contacted the KSP to report that she had discovered two additional screwdrivers.
Appellant's wife communicated to the authorities that she found the screwdrivers in the
front living room of the residence. However, the police officers who conducted the
search of the dwelling were certain they would have seen such items if they had been in
that location at the time. Subsequent laboratory testing revealed that the victim's blood
appeared on one of the newly discovered screwdrivers.
Following multiple surgeries and the insertion of a colostomy, S .J . was
released from the hospital to the foster care of a Medical Fragile Foster Care parent,
Shonda Combs. Mrs. Combs reported that on December 24, 2004, S .J. informed her of
an occasion in which Appellant came into the bedroom where S .J. was lying and "put
his thing in her, and it hurt, and made her bleed real bad." She then proceeded to tell
that Appellant took a screwdriver and placed it inside of her. S.J . also conveyed to Mrs.
Combs that Appellant had said he would kill her if she spoke of the incident to anyone.
The victim also told Ms. Combs that the Appellant cleaned the screwdriver off at the
kitchen sink. After receiving this information, Mrs . Combs contacted a social worker.
Pursuant to Mrs. Comb's report of the incident, S.J . underwent a videotaped forensic interview by a social worker . During the interview, S.J .'s statements were consistent
with the prior details of the incident that she had revealed to Mrs. Combs .
On February 2, 2005, a Pike County Grand Jury returned a three count
indictment against Appellant . Count one stated that on or about November 26, 2004,
Appellant committed rape in the first degree by engaging in sexual intercourse with a
person less than twelve years of age.3 Count two charged Appellant with the offense of
rape when he engaged in sexual intercourse with a person less than twelve years of
age, during which time the victim sustained a serious injury. The final count alleged
that during the period from November 26-30, 2004, Appellant committed the offense of
criminal abuse in the first degree when he violated KRS § 508 .100 which states:
(1) A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby : (a) causes serious physical injury; (b) or places him in a situation that may cause him serious physical injury ; or (c) causes torture, cruel confinement, or cruel punishment.
Appellant's trial took place on June 20, 2005. During the proceedings,
S.J . testified that on November 26, 2004, the Appellant entered the room where she
was lying on an air mattress . S .J. testified that Appellant placed his penis into her
vagina, causing her to bleed, and then placed a screwdriver inside her afterwards .
When confronted with her previous inconsistent statement at the hospital that she had
purposefully placed the screwdriver inside herself, S.J . explained that it was due to the
Appellant's threat of killing her if she told anyone . She explained to the jury her injuries,
past and future surgeries, and displayed her colostomy.
3 KRS 510.040. 4 Id. At the close of the commonwealth's case, counsel for Appellant made a
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IMPORTANT NO~'ICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPRE1f1E COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED ANA SHALL NOT BE CITED OR USED AS AUTHORITYINANY OTHER CASE INANY COURT OF THIS STATE. RENDERED : AUGUST 24, 2006 NOT TO BE PUBLISHED
"Sixprrms Courf of '~ 2005-SC-000722-MR
PAUL AMBURGEY APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT V. HONORABLE EDDY COLEMAN, JUDGE NO. 01-CR-0001-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Paul Amburgey, was convicted of two counts of rape in the first
degree by a Pike County Circuit Court jury. Appellant was sentenced to twenty years
on each count, to be served concurrently . This appeal is as a matter of right.'
Appellant asserts that there was insufficient evidence presented by the Commonwealth
and that he should have had a directed verdict of not guilty . Appellant moved for a
directed verdict at the close of the Commonwealth's evidence in chief and again at the
close of all the evidence, thereby preserving the issue for our review. Specifically,
Appellant contends that the testimony of an eight-year-old child is legally insufficient to
establish his guilt beyond a reasonable doubt.
' Ky. Const. § 110(2)(b) . 2 Pate v. Commonwealth , 134 S.W.3d 593 (Ky. 2004). On June 18, 2004, Social Services removed eight-year-old S.J ., the rape
victim in this case, from her home due to her biological parents' involvement with drugs.
She was placed with her maternal aunt, Dottie Amburgey, who was married to
Appellant . S.J.'s younger brother, C.J. (age 3), and an infant, E .J., were also placed in
Appellant's home. On November 30, 2004, the Kentucky State Police (KSP) received a
report from the Children's Hospital in Cincinnati, Ohio, that S .J . had been treated for
injuries that were consistent with a sexual assault . The officer who initially responded to
the hospital's report used a rape kit to collect swab samples from S .J for laboratory
examination .
At a later time following S .J .'s hospital visit, KSP officers were informed by
Appellant's wife that on November 29, 2004, she noticed the victim "walking funny ."
This prompted Appellant's wife to ask S .J . what was wrong. S .J . told her that she hurt
herself on the preceding Friday by inserting a screwdriver into her vagina because she
thought her aunt, Appellant's wife, no longer loved her. Upon hearing this information,
Appellant and his wife took S.J . to the children's hospital in Cincinnati, Ohio, for
treatment .
On the same day that the KSP received the report from the children's
hospital in Cincinnati, a search of the Amburgey residence was conducted . The search
was videotaped and evidence was collected for laboratory examination . The evidence
retrieved included a black plastic bag containing bloody clothing of the victim, several
screwdrivers, and a sheet located on the kitchen floor. In addition, an air mattress
positioned at the foot of Appellant's bed was examined by police officers. The victim
had been known to sleep on the air mattress on occasion. Following the search of the residence, KSP Detective Billy Hall
interviewed Appellant and his wife . Both denied any involvement in S .J .'s injuries, and
maintained that the victim purposely inserted the screwdriver into her vagina . Also,
Appellant's wife informed Detective Hall that there were bloody items located in a trash
bag on the front porch that she alleges S.J . placed there . Appellant denied any direct
knowledge of the injury to SJ's body.
More than a week after the search of the residence, Appellant's wife
contacted the KSP to report that she had discovered two additional screwdrivers.
Appellant's wife communicated to the authorities that she found the screwdrivers in the
front living room of the residence. However, the police officers who conducted the
search of the dwelling were certain they would have seen such items if they had been in
that location at the time. Subsequent laboratory testing revealed that the victim's blood
appeared on one of the newly discovered screwdrivers.
Following multiple surgeries and the insertion of a colostomy, S .J . was
released from the hospital to the foster care of a Medical Fragile Foster Care parent,
Shonda Combs. Mrs. Combs reported that on December 24, 2004, S .J. informed her of
an occasion in which Appellant came into the bedroom where S .J. was lying and "put
his thing in her, and it hurt, and made her bleed real bad." She then proceeded to tell
that Appellant took a screwdriver and placed it inside of her. S.J . also conveyed to Mrs.
Combs that Appellant had said he would kill her if she spoke of the incident to anyone.
The victim also told Ms. Combs that the Appellant cleaned the screwdriver off at the
kitchen sink. After receiving this information, Mrs . Combs contacted a social worker.
Pursuant to Mrs. Comb's report of the incident, S.J . underwent a videotaped forensic interview by a social worker . During the interview, S.J .'s statements were consistent
with the prior details of the incident that she had revealed to Mrs. Combs .
On February 2, 2005, a Pike County Grand Jury returned a three count
indictment against Appellant . Count one stated that on or about November 26, 2004,
Appellant committed rape in the first degree by engaging in sexual intercourse with a
person less than twelve years of age.3 Count two charged Appellant with the offense of
rape when he engaged in sexual intercourse with a person less than twelve years of
age, during which time the victim sustained a serious injury. The final count alleged
that during the period from November 26-30, 2004, Appellant committed the offense of
criminal abuse in the first degree when he violated KRS § 508 .100 which states:
(1) A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby : (a) causes serious physical injury; (b) or places him in a situation that may cause him serious physical injury ; or (c) causes torture, cruel confinement, or cruel punishment.
Appellant's trial took place on June 20, 2005. During the proceedings,
S.J . testified that on November 26, 2004, the Appellant entered the room where she
was lying on an air mattress . S .J. testified that Appellant placed his penis into her
vagina, causing her to bleed, and then placed a screwdriver inside her afterwards .
When confronted with her previous inconsistent statement at the hospital that she had
purposefully placed the screwdriver inside herself, S.J . explained that it was due to the
Appellant's threat of killing her if she told anyone . She explained to the jury her injuries,
past and future surgeries, and displayed her colostomy.
3 KRS 510.040. 4 Id. At the close of the commonwealth's case, counsel for Appellant made a
motion for a directed verdict, which was denied. The motion was renewed at close of all
the evidence and it too was denied. The jury returned a guilty verdict on both counts of
first degree rape . Appellant was sentenced to twenty years on each count to be served
concurrently.
Appellant argues that the judgment of first degree rape should be
overturned and the charges dismissed. He asserts that the Commonwealth's evidence
was insufficient to survive his motion for a directed verdict and that the trial court's ruling
to the contrary was erroneous. Appellant alleges that there was deficient evidence
presented by the Commonwealth during the trial court proceedings. Appellant asserts
that the conflicting and self-contradictory testimony of an .eight-year-old child should not
be sufficient to establish guilt beyond a reasonable doubt . Moreover, Appellant
attempts to support his argument for a reversal by relying on Garmeada Coal Co. v.
Mabe .S The Court stated in Garmeada that "in civil cases the party has the burden of
proof to make out a prima facie case, while in criminal cases the accused must be
proven guilty beyond a reasonable doubt. It is patent it takes strong and convincing
evidence to prove anything beyond a reasonable doubt . . . .s Also, Appellant refers to
the language in Wilke v. Commonwealth7 which states "if the evidence is as consistent
with innocence as with guilt his conviction cannot be sustained. . . ."$
However, the Appellant's reliance on the aforementioned case law is
misplaced. Instead, the Commonwealth utilizes the proper standard of review to
5 222 S.W .2d 829 (Ky. 1949). 6 Garmeada , 222 S.W.2d at 830 (Ky. 1949). '452 S.W.2d 420 (Ky. 1970) . 1 Wilkev, 452 S.W.2d at 422. determine when a directed verdict is justified . In Commonwealth v. Benham9 this Court
opined,
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 jury questions as to the credibility and weight to be given to such testimony.
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 .'°
From the evidence in this case, and taking the evidence in the light most favorable to
the Commonwealth, it was not clearly unreasonable for the jury to find Appellant guilty
of two counts of rape in the first degree.
The rape victim, eight-year-old S .J., participated in a video-taped forensic
interview by a social worker in which she explained what Appellant had done to heron
the night of November 26, 2004. She discussed how Appellant raped her and
subsequently placed a screwdriver inside her vagina, with both acts causing her to
bleed. S .J .'s account of this event was consistent during her testimony and with her
initial discussion with Shonda Combs (i.e., the Medical Fragile Foster Care parent) on
December 24, 2004 . In addition, the photographs of her injuries that were viewed by
the jury show the sexual abuse and violence that this child endured at the hands of
Appellant . Moreover, there was no reasonable explanation for the delay in taking S.J .
9 816 S.W.2d 186 (Ky. 1991). '° Benham , 816 S.W.2d at 187 (Ky. 1991) (citin Commonwealth v. Sawhill , 660 S .W .2d 3, 4-5 (Ky. 1983) (emphasis added)). to the hospital after the rape had occurred . Lastly, S.J.'s failure to inform Appellant's
wife about the rape was justified by her fear that Appellant would kill her if she told
anyone .
Clearly, there was sufficient evidence presented from which a reasonable
juror could find guilt beyond a reasonable doubt. This Court has recognized "that it is
within the peculiar province of the jury to determine the credibility of the witnesses and
the weight to be given their testimony, and in the exercise of function they may believe
one witness though contradicted by a number of others, or one set of witnesses to the
exclusion of others ."" Also, this Court has consistently taken the position that "an
appellate court cannot reevaluate the evidence or substitute its judgment as to the
credibility of a witness for that of the trial court and the jury."' 2
Accordingly, Appellant's convictions are affirmed .
Lambert, C.J ., and Graves, McAnulty, Minton, Roach, Scott, and
Wintersheimer, JJ., concur.
" Bowling v. Commonwealth , 318 S.W.2d 53,55 (Ky. 1958). '2 Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994) (uotin Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987)) . COUNSEL FOR APPELLANT :
James W . Craft II 21 North Webb Avenue Whitesburg, KY 41858
COUNSEL FOR APPELLEE:
Gregory D. Stumbo Attorney General of Kentucky
Louis F. Mathias, Jr. Assistant Attorney General Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204