RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0813-MR
XAVIER D. SMITH APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 21-CR-00306
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON,1 AND EASTON, JUDGES.
CALDWELL, JUDGE: Xavier D. Smith appeals from the Christian Circuit
Court’s denial of his motion for a directed verdict on the charge of sexual abuse in
the first degree. For the following reasons, we affirm.
1 Judge Donna Dixon concurred in the Opinion prior to her retirement effective November 20, 2023. Release of this Opinion was delayed by administrative handling. FACTS
On the afternoon of April 18, 2021, R.B. was jogging in a park in
Hopkinsville, Kentucky. Though she had headphones on, she suddenly realized
footsteps were rapidly approaching her from behind. Next, someone “slammed”
into her “very hard,” and then caught her in a tight embrace from behind and
grabbed her breasts. She was able to get out of the grasp of her assailant by “pretty
forcibly pushing him off” her and then turned to face him. The man then grabbed
her crotch and buttocks before running away. He said nothing during the
encounter. R.B. was able to gain her composure and snap a picture of her assailant
using her phone, which she then used to call 911.
Shaquilla Lawson (Lawson) was sitting in her vehicle in the park’s
parking lot with her five young daughters. While they were eating lunch, she
noticed someone walk past her vehicle and into the park. A short time later, she
saw R.B. running out of the park, and noticed she seemed upset.
Police were dispatched to the park and the surveillance footage was
obtained. Both Lawson and R.B. were interviewed. A screenshot of the assailant
was obtained from the surveillance footage, but he was not known to the officers.
Several days later, Xavier Smith (Smith) and his mother came to the
police station.2 Smith told police that he was the man in the surveillance photo and
2 The record provides no reason why Smith felt compelled to come to the police station.
-2- that he had been the one to grab R.B. He was charged with sexual abuse in the
first degree.
At trial, the only contested fact was whether the crime had been
accomplished with the use of forcible compulsion. The defense requested an
instruction on sexual abuse in the third degree, but that request was denied. Smith
moved for a directed verdict of acquittal, arguing that the Commonwealth had not
met its burden on the element of forcible compulsion. That request was also
denied.
During deliberations, the jury asked the trial court if there was any
alternative to finding Smith guilty of the felony sexual abuse in the first degree
charge and was told there was no alternative charge for them to consider. The jury
rendered a guilty verdict on the charge and recommended a one-year sentence.
The trial court imposed the sentence, which Smith had already
satisfied as he had been either incarcerated or on home incarceration while
awaiting trial. He was placed on sexual offender post-incarceration supervision,
which is to end in April of 2025. Smith was ordered to complete the sex offender
treatment program and to register as a sex offender.3
3 Per Kentucky Revised Statute (KRS) 17.520(3), his term of registration is twenty (20) years.
-3- Smith appeals the trial court’s denial of his motion for a directed
verdict.4
STANDARD OF REVIEW
The standard of review when an appellate court reviews a trial court’s
denial of a motion for directed verdict involves the following standard:
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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
ANALYSIS
Smith argues that the trial court erred when it allowed the jury to
deliberate on the charge of sexual abuse in the first degree as he insists there was
insufficient evidence provided to support a finding of guilt as there was no
evidence of forcible compulsion. He insists that the only contact he made with
4 We note that the brief originally filed by Smith included an argument concerning the denial of an instruction on sexual abuse in the third degree as a lesser-included offense. Smith moved for permission to withdraw that argument, and another concerning the length of the sentence received, and to file an amended brief for appellant. We granted that motion and the amended brief, raising only the directed verdict issue, was filed.
-4- R.B. was the sexual touching; therefore, he could only have been guilty of the
misdemeanor of sexual abuse in the third degree.5
KRS 510.110, in relevant 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[.]
The Commonwealth insists that R.B.’s testimony that a person
“slammed” into her from behind while she jogged is sufficient force to satisfy the
element of “forcible compulsion.” We agree.
In Yates v. Commonwealth, the Kentucky Supreme Court ultimately
found that forcible compulsion could not be found when the defendant had
threatened to tell a teenager’s mother about her relationship with an older man if
5 (1) A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent.
(2) In any prosecution under this section, it is a defense that:
(a) The other person’s lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and
(b) The other person was at least fourteen (14) years old; and
(c) The actor was less than eighteen (18) years old.
(3) Sexual abuse in the third degree is a Class B misdemeanor.
KRS 510.130.
-5- she did not engage in sexual acts with him. 430 S.W.3d 883 (Ky. 2014). Finding
the threat that her boyfriend could be charged with a crime for having sexual
relations with her, a minor, and would face physical danger in jail or prison was
too attenuated to satisfy the statutory definition of “forcible compulsion,” the Court
reversed Yates’ first-degree rape conviction. In doing so, the Court held
“[f]orcible compulsion is evidence of lack of consent, which underlies all sexual
offenses.” Id. at 889. It is clear in the present case that R.B. did not consent to the
touching in any way.
Smith argued to the trial court and to this Court that the only touching
which occurred was the sexual touching, and to find that such touching amounts to
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RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0813-MR
XAVIER D. SMITH APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 21-CR-00306
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON,1 AND EASTON, JUDGES.
CALDWELL, JUDGE: Xavier D. Smith appeals from the Christian Circuit
Court’s denial of his motion for a directed verdict on the charge of sexual abuse in
the first degree. For the following reasons, we affirm.
1 Judge Donna Dixon concurred in the Opinion prior to her retirement effective November 20, 2023. Release of this Opinion was delayed by administrative handling. FACTS
On the afternoon of April 18, 2021, R.B. was jogging in a park in
Hopkinsville, Kentucky. Though she had headphones on, she suddenly realized
footsteps were rapidly approaching her from behind. Next, someone “slammed”
into her “very hard,” and then caught her in a tight embrace from behind and
grabbed her breasts. She was able to get out of the grasp of her assailant by “pretty
forcibly pushing him off” her and then turned to face him. The man then grabbed
her crotch and buttocks before running away. He said nothing during the
encounter. R.B. was able to gain her composure and snap a picture of her assailant
using her phone, which she then used to call 911.
Shaquilla Lawson (Lawson) was sitting in her vehicle in the park’s
parking lot with her five young daughters. While they were eating lunch, she
noticed someone walk past her vehicle and into the park. A short time later, she
saw R.B. running out of the park, and noticed she seemed upset.
Police were dispatched to the park and the surveillance footage was
obtained. Both Lawson and R.B. were interviewed. A screenshot of the assailant
was obtained from the surveillance footage, but he was not known to the officers.
Several days later, Xavier Smith (Smith) and his mother came to the
police station.2 Smith told police that he was the man in the surveillance photo and
2 The record provides no reason why Smith felt compelled to come to the police station.
-2- that he had been the one to grab R.B. He was charged with sexual abuse in the
first degree.
At trial, the only contested fact was whether the crime had been
accomplished with the use of forcible compulsion. The defense requested an
instruction on sexual abuse in the third degree, but that request was denied. Smith
moved for a directed verdict of acquittal, arguing that the Commonwealth had not
met its burden on the element of forcible compulsion. That request was also
denied.
During deliberations, the jury asked the trial court if there was any
alternative to finding Smith guilty of the felony sexual abuse in the first degree
charge and was told there was no alternative charge for them to consider. The jury
rendered a guilty verdict on the charge and recommended a one-year sentence.
The trial court imposed the sentence, which Smith had already
satisfied as he had been either incarcerated or on home incarceration while
awaiting trial. He was placed on sexual offender post-incarceration supervision,
which is to end in April of 2025. Smith was ordered to complete the sex offender
treatment program and to register as a sex offender.3
3 Per Kentucky Revised Statute (KRS) 17.520(3), his term of registration is twenty (20) years.
-3- Smith appeals the trial court’s denial of his motion for a directed
verdict.4
STANDARD OF REVIEW
The standard of review when an appellate court reviews a trial court’s
denial of a motion for directed verdict involves the following standard:
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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
ANALYSIS
Smith argues that the trial court erred when it allowed the jury to
deliberate on the charge of sexual abuse in the first degree as he insists there was
insufficient evidence provided to support a finding of guilt as there was no
evidence of forcible compulsion. He insists that the only contact he made with
4 We note that the brief originally filed by Smith included an argument concerning the denial of an instruction on sexual abuse in the third degree as a lesser-included offense. Smith moved for permission to withdraw that argument, and another concerning the length of the sentence received, and to file an amended brief for appellant. We granted that motion and the amended brief, raising only the directed verdict issue, was filed.
-4- R.B. was the sexual touching; therefore, he could only have been guilty of the
misdemeanor of sexual abuse in the third degree.5
KRS 510.110, in relevant 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[.]
The Commonwealth insists that R.B.’s testimony that a person
“slammed” into her from behind while she jogged is sufficient force to satisfy the
element of “forcible compulsion.” We agree.
In Yates v. Commonwealth, the Kentucky Supreme Court ultimately
found that forcible compulsion could not be found when the defendant had
threatened to tell a teenager’s mother about her relationship with an older man if
5 (1) A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent.
(2) In any prosecution under this section, it is a defense that:
(a) The other person’s lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and
(b) The other person was at least fourteen (14) years old; and
(c) The actor was less than eighteen (18) years old.
(3) Sexual abuse in the third degree is a Class B misdemeanor.
KRS 510.130.
-5- she did not engage in sexual acts with him. 430 S.W.3d 883 (Ky. 2014). Finding
the threat that her boyfriend could be charged with a crime for having sexual
relations with her, a minor, and would face physical danger in jail or prison was
too attenuated to satisfy the statutory definition of “forcible compulsion,” the Court
reversed Yates’ first-degree rape conviction. In doing so, the Court held
“[f]orcible compulsion is evidence of lack of consent, which underlies all sexual
offenses.” Id. at 889. It is clear in the present case that R.B. did not consent to the
touching in any way.
Smith argued to the trial court and to this Court that the only touching
which occurred was the sexual touching, and to find that such touching amounts to
the required forcible compulsion would render sexual abuse in the third-degree
moot. As every sexual abuse case requires touching of some sort, not requiring
either the use of force or the threat of the use of force to accomplish the assault
renders no difference between the felony first-degree sexual abuse and sexual
abuse in the third degree. We agree that we must always interpret statutes to
determine and implement the intent of the legislature, and statutes should not be
interpreted in a way which renders them “meaningless or ineffectual.”6 However,
6 “The essence of statutory construction is to determine and effectuate legislative intent” by drawing insight from “the legislative policy and purpose of the statute” and interpreting the entire statute in context without distorting its intended meaning by focusing on a single sentence, clause, or phrase. Sweasy v. Wal-
-6- we disagree with Smith that there was no use of force here which was not sexual in
nature. There was forcible compulsion in this case sufficient to uphold the verdict.
Smith’s act of slamming his body into R.B.’s from behind to take her by surprise
and to allow him to then touch her in a sexual manner satisfies the element of
forcible compulsion in this case.
Going back to the Supreme Court’s decision in Yates, the Court
analyzed the phrase in the statutory definition of “forcible compulsion” in KRS
510.010(2):
“Forcible compulsion” means 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 necessary to meet this definition[.]
As a part of this analysis, the Court held that the sexual act must be the result of
“an act or threat of physical force done by the defendant.” 430 S.W.3d at 890
(emphasis in original). The Court noted that as every sexual act requires some
force, forcible compulsion must be something more. It is the “compulsion” part of
Mart Stores, Inc., 295 S.W.3d 835, 838 (Ky. 2009) (citations omitted). A statute must be read and applied so that “no part of it is meaningless or ineffectual.” Stevenson v. Anthem Cas. Ins. Grp., 15 S.W.3d 720, 724 (Ky. 1999).
Kindred Healthcare v. Harper, 642 S.W.3d 672, 680 (Ky. 2022).
-7- the element which ensures that it is not the sexual touching itself which is the
“force” required by the statute, but the “phrase ‘forcible compulsion’ requires
another factual element, namely, lack of consent by the victim, in the sense of lack
of voluntariness or permissiveness. This is dictated by use of the word
‘compulsion.’” Id.
Employing the Supreme Court’s analysis to the present facts, the
“slamming” into R.B. from behind is the non-sexual force used by Smith which
arguably allowed for the non-consensual sexual touching to occur. Approaching
from the back, quickly, and grabbing R.B. rendered her incapable of consenting to
the touching which immediately thereafter occurred. Further, R.B. testified she
was in fear for her physical safety during the assault, and it was for the jury to
determine whether R.B.’s testimony concerning her fear for her physical safety and
the force used by Smith were sufficient to constitute “forcible compulsion.”
It is for the jury to determine whether the evidence is sufficient for a
finding of guilt, and the trial court must not enter a directed verdict and remove the
question from the jury unless after drawing all fair and reasonable inferences from
the evidence in favor of the Commonwealth, no reasonable juror could find guilt.
We cannot say that the trial court erred in not directing a verdict of acquittal here.
See Commonwealth v. Goss, 428 S.W.3d 619, 629 (Ky. 2014).
-8- CONCLUSION
The trial court properly denied Smith’s motion for a directed verdict
and allowed the jury to determine the facts it found which supported a finding of
guilt. There was no error.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
-9-