Yarnell v. Commonwealth

833 S.W.2d 834, 1992 Ky. LEXIS 155, 1992 WL 141815
CourtKentucky Supreme Court
DecidedJune 25, 1992
Docket90-SC-820-MR
StatusPublished
Cited by30 cases

This text of 833 S.W.2d 834 (Yarnell 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
Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155, 1992 WL 141815 (Ky. 1992).

Opinions

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Yarnell of 16 counts of various sexual offenses and sentenced him to a term of life imprisonment plus 290 years.

The issues presented are whether there was sufficient evidence as to forcible compulsion; whether the evidence required an instruction on sexual misconduct; whether the defendant was prejudiced by amending Count One of the indictment; whether double jeopardy would be involved in any retrial on the first-degree rape charges; whether the admission of testimony concerning similar acts was proper and whether the life sentence and the sentence to a term of years should be run concurrently.

This case centers around allegations for a period of time of approximately 9 years during which Yarnell and his wife were [836]*836married or living together with his two stepchildren who were her natural children. Yarnell and wife married in February of 1982 after living together since November of 1981. At the time of the marriage, the two children, Tanya and Robbie, were aged 12 and 10, respectively. Yarnell and his wife were ultimately divorced in 1989. The daughter, who was doing badly in school, sought counseling. The counselor reported the story of sexual abuse to social services who in turn contacted police. The mother and Yarnell were both arrested and charged with various counts of sexual abuse. The mother pled guilty to first-degree sexual abuse and complicity to second-degree sodomy and was sentenced to a total of five years concurrently.

Yarnell was convicted of 11 counts of first-degree rape, four counts of first-degree sodomy and two counts of complicity to first-degree sexual abuse. He was sentenced to consecutive terms of life and 290 years. This appeal followed his conviction.

Yarnell argues that he was entitled to a directed verdict of acquittal because the prosecution failed to prove the element of forcible compulsion for first-degree rape, first-degree sodomy and first-degree sexual abuse. He claims that no evidence indicated physical force was used against Tanya and Robbie which overcame their earnest resistance and that there was no evidence of any threat of physical force.

The standard for appellate review of a denial of a motion for directed verdict based on insufficient evidence is that if under the evidence as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983); Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). Here under the evidence as a whole, it was clearly reasonable for the jury to find Yarnell guilty. Consequently, he was not entitled to a directed verdict of acquittal. Actual physical force is not needed to prove forcible compulsion. In determining whether the victim submitted because of an implied threat which placed her in fear, a subjective rather than an objective standard must be applied. Salsman v. Commonwealth, Ky.App., 565 S.W.2d 638 (1978); Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979).

The definition of forcible compulsion was discussed in the commentary accompanying the statute in the 1971 final draft. We find it useful in our consideration of this case. It states in part:

The term also includes a threat, express or implied, that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself ... the definition does not require that the victim’s fear be “reasonable” ... the phrase “earnest resistance” requires more than token initial resistance but less than showing that the victim was physically incapable of additional struggle against the assailant.

The evidence established that Yar-nell used forcible compulsion against the two children because they both testified they were afraid of him; that he was always yelling and screaming and every other word was an obscenity. Robbie testified that he tried to stay away from Yarnell and would not come out of his room until the defendant was gone. On several occasions Yarnell hit Tanya, threw her against a wall and ripped her blouse. The two children did not tell their mother of some of the sexual attacks because Yarnell warned them not to tell the mother about things of which she was unaware. Tanya said she believed no way existed to get away from Yarnell and that she thought he was crazy. Tanya testified that she did physically fight back on at least one occasion when she was about 18 years of age. She stated that he tried to pull her into the bedroom, that her arm hit the door and begin to swell and that he threw her on the bed and raped her. Both children testified that Yarnell would punish them by forcing them to perform oral sex with him.

Tanya testified she knew what was happening was not right but that she thought by sacrificing herself her mother could finally attain happiness. She thought her [837]*837mother was mentally ill and had been brainwashed by Yarnell. Robbie testified that he allowed the sexual abuse because he feared that the family would lose its financial security, and he did not like to see his mother unhappy. The child was also afraid that his mother would go to jail if he told anyone what was happening and that Yarnell would take it out on his mother.

The evidence indicates that the two children were subject to constant emotional, verbal and physical duress. They lived in continued fear of what Yarnell might do to them or their mother. They testified that they went along with the deviate sexual behavior only because of this fear. Under the evidence as a whole, it was not clearly unreasonable for the jury to find that Yar-nell engaged in sexual intercourse with the children by means of forcible compulsion. Accordingly, he was not entitled to a directed verdict of acquittal.

Yarnell contends that the trial judge erred when he refused to instruct on the lesser-included offense of sexual misconduct. Counts Six through Fourteen charge Yarnell with first-degree rape and the jury was instructed accordingly.

The evidence did not require an instruction on sexual misconduct. A trial judge must instruct the jury on all lesser-included offenses which are supported by the evidence. Cannon v. Commonwealth, Ky., 777 S.W.2d 591 (1989); McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986). The evidence clearly established that Yarnell used forcible compulsion by means of threats and intimidation to engage in sexual intercourse with Tanya. The fact that the trial judge gave lesser-included instructions on Counts Two through Five and Count Fifteen was based on the age of the victim Tanya at the time of the incident and not on any question as to lack of forcible compulsion. Counts Two through Five charged Yarnell with first-degree sodomy alleged to have occurred in 1982 or 1983. Tanya would have been 12 or 13 years of age at that time.

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Cite This Page — Counsel Stack

Bluebook (online)
833 S.W.2d 834, 1992 Ky. LEXIS 155, 1992 WL 141815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yarnell-v-commonwealth-ky-1992.