Clarence Robinson v. Commonwealth of Kentucky ( 2006 )


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  •                                                       RENDERED : NOVEMBER 22, 2006
    TO BE PUBLISHED
    'Sixlrrmo 490urf of
    2005-SC-000750-MR
    CLARENCE ROBINSON                                                           APPELLANT
    APPEAL FROM LINCOLN CIRCUIT COURT
    V.                       HONORABLE DAVID A. TAPP, JUDGE
    05-CR-00033
    COMMONWEALTH OF KENTUCKY                                                      APPELLEE
    OPINION OF THE COURT BY JUSTICE McANULTY
    AFFIRMIN G IN PART, REVERSING AND REMANDING IN PART
    A Lincoln Circuit Court jury convicted Clarence Robinson of three counts of
    second-degree rape, three counts of third-degree rape and one count of first-degree
    rape. Robinson committed all the offenses against S.M .H ., whom Robinson married in
    Knox County, Tennessee when Robinson was 37 years old and when S.M.H. had just
    turned 14 years old and was six months pregnant with his child at the time of the
    marriage . In accordance with the jury's recommendation, the trial court sentenced
    Robinson to a total of 61 years in prison (10 years on each count of second-degree
    rape ; five years on one count and three years on two counts of third-degree rape ; and
    20 years on the single count of first-degree rape to run consecutively) . Thus, he
    appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) .
    Robinson presents two issues for our review. First, Robinson contends that the
    trial court erred in denying his request that the jury be instructed under KRS 510 .035
    that no offense is committed if the parties are married to each other, regardless of the
    person's age solely because the other person is less than 16 years old . Second,
    Robinson argues that the trial court erred in directing a verdict as to the charge of first-
    degree rape as there was no evidence of forcible compulsion .
    Our holding in this case is three-part. (1) We conclude that the trial court erred
    in refusing to instruct the jury under KRS 510.035 because the evidence was
    undisputed that Robinson and S .M .H. were married when S.M.H. was 14 years old .
    Thus, we reverse and remand as to the judgment of conviction for the charges of third-
    degree rape. (2) Because the parties were not married, however, until shortly after
    S .M.H.'s 14' birthday, we affirm the judgment of conviction on the three counts of
    second-degree rape as Robinson was not entitled to an instruction under KRS 510.035
    for the time period preceding the marriage . (3) And we affirm the judgment of
    conviction on the single count of first-degree rape because under the evidence as a
    whole, it was not clearly unreasonable for a jury to find guilt.
    I. Facts Underlying the Convictions and Defense Trial Motions
    The Commonwealth presented only two witnesses at Robinson's trial, S.M.H .
    and Detective Van Wright, with whom Robinson had a conversation about his marriage
    to S .M.H.
    S.M .H . testified that she, her mother, and her siblings have lived in Robinson's
    home since S.M.H. was eight or nine years old . S.M .H .'s date of birth is February 15,
    1986 .
    Robinson first had sexual intercourse with S .M.H. in October of 1998 when
    S.M .H. was 12 years old . On this occasion, Robinson picked       up S.M.H . from a choral
    program at her middle school (where S .M.H. was in seventh grade). Instead of driving
    S .M.H. straight home, however, Robinson took S .M.H . off on a country road and had
    sexual intercourse with her in his vehicle. After that, Robinson had sexual intercourse
    with S.M.H. three to four times a week in his vehicle.
    In the late summer of 1999, S.M.H. conceived her first child with Robinson. At
    that point, S .M.H. was 13 years old. Six months later, on Saturday, March 18, 2000,
    S .M.H .'s mother, Robinson's mother, and Robinson took S .M.H . to Knox County,
    Tennessee . S-.M .H .'s mother altered her birth certificate to appear that S .M .H . was 16
    years old by changing her date of birth from February 15, 1986, to February 15, 1984 .
    On the application for the marriage license, S .M.H. represented that she was 16 years
    old. She testified that she filled out the application as directed by the adults and did so
    because she thought that they would leave her in Tennessee if she did not do as
    instructed .
    The county clerk issued a Tennessee marriage license, and Robinson and
    S.M .H . were married in a church by a minister. They did not have a honeymoon and
    did not tell anyone they were married. Their living arrangements continued as they had
    been before the marriage -- S .M.H., her siblings and her mother remained in
    Robinson's home . S.M.H. had a separate room in the house and did not take
    Robinson's last name, although she admits that she did use his last name on hospital
    records when she had her children .
    S.M .H . gave birth to her first child, J .A.R., on June 9, 2000, when S.M.H. was 14
    years old . No father is listed on J.A.R.'s birth certificate, but Robinson stipulated that
    DNA test results confirm that he is J.A.R.'s biological father.
    After J .A .R. was born, Robinson started coming in S.M.H .'s room to have sexual
    intercourse with her and would come in her room every night for that purpose.
    S .M .H . gave birth to her second child, A.J.R., on July 28, 2002, when S.M .H . was
    16 years old . No father is listed on A.J .R.'s birth certificate, but Robinson stipulated
    that DNA test results confirm that he is A.J .R.'s biological father.
    After A.J .R. was born, Robinson continued to have sexual intercourse with
    S .M.H. He would threaten her and members of her family . If she would tell him "No,"
    he would push her down until she gave in to him .
    S .M.H. gave birth to her third child, C.M.R., on October 18, 2003, when S .M.H .
    was 17 years old . No father is listed on C.M.R.'s birth certificate, but Robinson
    stipulated that DNA test results confirm that he is C.M.R.'s biological father.
    S.M.H . obtained her driver's license when she was 17. Once she did, she drove
    her children to their doctor's appointments at the health clinic . While there, she
    requested birth control shots . The last time Robinson had sexual intercourse with
    S .M .H . was in November of 2004.
    On January   6,   2005, S.M .H. finally confided in social services after her children
    were removed from her home that Robinson had been having sexual intercourse with
    her since she was 12 years old. She stated the following on a domestic violence
    petition/motion :
    When I was 12 years old, Clarence forced himself on me and
    proceeded to have sexual intercourse with me, unwillingly, and has
    done so for the past six years . Throughout this time, I have also
    given birth to three children who belong to him. I am scared that he
    will harm my children, my siblings, and me . I feel this way because
    he said if I ever told anyone that I would regret it.
    In connection with the domestic violence order, Detective Van Wright spoke with
    Robinson in the judge's chambers in the Lincoln County Judicial Center. Detective
    Wright testified that Robinson told him that he and S.M.H. had gone to Tennessee to
    get married because that is what S .M .H . wanted.
    Detective Wright also spoke with S.M .H .'s mother, Lisa Robinson, regarding
    S .M.H.'s allegations . Lisa Robinson stated that S .M.H. and Robinson were married
    because they loved each other, yet Lisa Robinson stated that she had had sexual
    intercourse with Robinson since he and her daughter had been married . (Lisa
    Robinson was indicted and tried jointly with Robinson for three counts of complicity to
    commit second-degree rape, three counts of complicity to commit third-degree rape,
    and one count of complicity to commit first-degree rape.)
    At the close of the Commonwealth's case-in-chief, Robinson made a motion for
    a directed verdict of acquittal . He renewed his motion once he announced that he
    would not put on any proof. He also requested that the jury be instructed under KRS
    510.035.
    The trial court, in response, denied his motion for a directed verdict and his
    request for an instruction under KRS 510.035 . As to KRS 510.035, the trial court held
    that a valid marriage was a prerequisite to the defense under KRS 510.035 and
    Robinson's marriage to S.M.H. was invalid for three reasons.
    First, the trial court concluded that the marriage in Tennessee was in violation of
    at least three Tennessee statutes : (a) the county clerk did not wait the requisite three
    days under T.C.A. § 36-3-104(b)(1) before issuing the license; (b) under T.C.A. § 36-3
    105(a), it is unlawful for a county clerk to issue a marriage license if one of the
    contracting parties is under the age of 16; and (c) T.C.A. § 36-3-106(a) requires the
    consent of the parent or guardian when either applicant is between the age of 16 and
    18, yet the trial court found no consent in this case.
    Second, the trial court concluded that the marriage was in violation of KRS
    402 .020 . KRS 402.020(1)(f) states that a marriage is prohibited and void when at the
    time of the marriage, either person is under the age of 16, unless the female is
    pregnant, in which case permission to marry must be granted by the district court upon
    application .
    Third, the trial court considered KRS 402.040, which states : "[i]f any resident of
    this state marries in another state, the marriage shall be valid here if valid in the state
    where solemnized, unless the marriage is against Kentucky public policy." The trial
    court reasoned that the state of Kentucky has a public policy of protecting those of
    tender years who wish to marry and that public policy is not furthered by permitting
    individuals to use marriage as a defense to avoid what would otherwise be criminal
    sexual contact .
    11. First Issue: Did the trial court err in refusing to instruct the jury under
    KRS 510.035?
    Robinson's marriage to S .M.H. was voidable, not void. Thus, we conclude that
    the trial court erred in refusing to instruct the jury under KRS 510.035 for that time
    period when the parties were married .
    While the trial court's analysis under KRS 402 .040 seems just under the
    circumstances of this case, we cannot agree that the legislature has declared that the
    marriage of a female under the age of 16 is against the public policy of Kentucky. We
    reach this conclusion after considering and harmonizing the language of five Kentucky
    statutes : KRS 402 .040, KRS 402.010, KRS 402 .020, KRS 402.030, and KRS 510 .035 .
    Because the parties married in Tennessee, the trial court properly considered
    KRS 402 .040 . KRS 402 .040(1), as referenced above, announces the general rule that
    an out-of-state marriage shall be valid in Kentucky if valid in the state where solemnized
    unless the marriage is against Kentucky public policy . KRS 402 .040(2) affirms that
    same-sex marriages are against Kentucky public policy .
    To determine if an underage marriage is against Kentucky public policy, we turn
    to KRS 402.010, KRS 402 .020 and KRS 402 .030 . See Mangrum v. Mangrum, 
    310 Ky. 226
    , 220 S.W .2d 406, 407-408 (Ky. 1949) (construing KRS 402.010, KRS 402.020 and
    KRS 402 .030 in connection with one another and with other statutes and holding that
    underage marriages are not void, but merely voidable); Holbert v. West, 
    730 F. Supp. 50
    , 53 (E.D. Ky. 1990) (relying on the holding in Mangrum and concluding that under
    Kentucky law, minor's marriage without parents' consent is merely voidable rather than
    void).
    KRS 402.010 expressly declares void incestuous marriages.
    KRS 402.020 is as follows:
    (1) Marriage is prohibited and void :
    (f) 1 . Except as provided in subparagraph 3. of this paragraph,
    when at the time of the marriage, the person is under sixteen
    (16) years of age ;
    3. In case of pregnancy the male and female, or either of
    them, specified in subparagraph 1 . or 2. of this paragraph, may
    apply to a District Judge for permission to marry, which
    application may be granted, in the form of a written court order,
    in the discretion of the judge. There shall be a fee of five dollars
    ($5) for hearing each such application.
    Despite KRS 402.020's plain language that such a marriage is prohibited and
    void, KRS 402.030(3) states:
    At the instance of any next friend, courts having general jurisdiction
    may declare void any marriage where:
    (a) The person was under sixteen (16) years of age at the time of
    the marriage ;
    (b) The marriage was not conducted with the permission of a
    District Judge, as required by KRS 402.020(1)(f)3 ., in the form
    of a written court order; and
    (c) The marriage has not been ratified by cohabitation after the
    person reached eighteen (18) years of age.
    If the legislature had intended to declare an underage marriage against the
    public policy of the state, it would have made it absolutely void -- as it has done with
    incestuous marriages and same-sex marriages -- and it would not have enacted KRS
    402 .030.
    Nor would it have allowed the defense under KRS 510.035 that is at issue in this
    case . KRS 510 .035 is as follows:
    A person who engages in sexual intercourse or deviate sexual
    intercourse with another person to whom the person is married, or
    subjects another person to whom the person is married to sexual
    contact, does not commit an offense under this chapter regardless
    of the person's age solely because the other person is less than
    sixteen (16) years old or mentally retarded.
    Interpreting these statutes in connection with one another, we conclude that a
    marriage of a person under the age of 16, which is in violation of KRS 402 .020(1)(f), is
    voidable, not void. See Mangrum, 220 S.W .2d at 408 . As such, the marriage is not
    against Kentucky public policy .
    Likewise, as to the validity of the Tennessee marriage, the marriage was
    voidable, not void -- a circumstance which the Commonwealth concedes in this appeal.
    See Brown v. Brown , 29 S.W .3d 491, 495 (Tenn . Ct. App. 2000), permission to appeal
    denied, ("``A marriage is voidable from the beginning (1) when either party was insane ;
    or (2) the complainant was under duress ; or (3) was under the age of consent; or (4)
    when the consent was obtained by force, or fraud, and was given by mistake; or (5)
    when the defendant was impotent ; or (6) when the woman was pregnant by another
    man without the knowledge of the complainant ; or (7) when, for any other reason, the
    marriage was not binding on the complainant . . ."'). And a voidable marriage is valid
    and binding upon the parties until such time as it is annulled by a competent court. See
    Brewer v. Miller , 
    673 S.W.2d 530
    , 532 (Tenn. App. 1984) .
    Turning to the facts of this case, the evidence at trial established that Robinson
    and S .M .H . married in Knox County, Tennessee on March 18, 2000, when S.M.H. was
    14. S .M.H. did not testify that the marriage had been annulled .
    Given the fact of the marriage, Robinson requested that the trial court give an
    instruction on marriage as a defense to the second and third-degree rape charges.
    This preserved the error for review. See RCr 9.54. Upon review, we conclude that
    there was evidence to support the instruction on the third-degree rape charges, but not
    on the second-degree rape charges because S.M.H. testified that she and Robinson
    did not marry until about one month after her 14th birthday . See KRS 510.050.
    Robinson was not entitled to an instruction under KRS 510.035 for the time period
    preceding the marriage .
    Upon review, this seems to be the case of a sophisticated child predator. In
    holding as we do today, we are not condoning this marriage . We are following the
    public policy as established by the legislature . "It is beyond the power of a court to
    vitiate an act of the legislature on the grounds that public policy promulgated therein is
    contrary to what the court considers to be in the public interest. It is the prerogative of
    the legislature to declare that acts constitute a violation of public policy." Com. ex rel.
    Cowan v. Wilkinson, 
    828 S.W.2d 610
    , 614 (Ky. 1992) .
    Accordingly, we affirm the judgment in regard to Robinson's convictions and
    sentence for three counts of second-degree rape . However, we reverse and remand
    for proceedings consistent with this opinion that part of his conviction and sentence for
    three counts of third-degree rape .
    11. Did the trial court err in refusing to grant a directed verdict on first-
    degree rape because there was no evidence of forcible compulsion?
    Under the evidence as a whole, it was not clearly unreasonable for a jury to find
    guilt on the charge of first-degree rape . Thus, the trial court did not err in denying
    Robinson's motion for a directed verdict on that charge.
    On a motion for directed verdict, the trial court must draw all fair and reasonable
    inferences from the evidence in favor of the Commonwealth, reserving to the jury all
    questions of credibility and weight of the evidence . See Commonwealth v. Benham,
    816 S.W .2d 186, 187 (Ky. 1991); Commonwealth v. Sawhill , 
    660 S.W.2d 3
    , 4 (Ky.
    1983) . "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 ." Benham , 816 S.W .2d at 187.
    A conviction for first-degree rape, as it relates to this case, required the jury to
    find that Robinson engaged in sexual intercourse with S.M.H. by forcible compulsion.
    KRS 510 .040(1)(a) . As defined in KRS 510.010(2), "'[foorcible 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."
    Turning to S.M.H .'s testimony at trial, she stated that (1) Robinson would
    threaten her and members of her family, and (2) if she told him "No," he would push her
    down until she gave in to him . In addition, S.M.H. testified that in her application for a
    -10-
    domestic violence order she stated that (1) Robinson forced himself on her when she
    was 12 years old and proceeded to have sexual intercourse with her, unwillingly, and
    has done so for the past six years ; and (2) she is scared that he will harm her children,
    her siblings, and her, because he said if she ever told anyone that she would regret it.
    This evidence was sufficient to establish forcible compulsion and to withstand a
    directed verdict. Thus, we affirm the judgment in regard to Robinson's conviction and
    sentence on the charge of first-degree rape .
    For the reasons set forth above, we affirm the judgment of the Lincoln Circuit
    Court in regard to Robinson's convictions and sentence for three counts of second-
    degree rape and one count of first-degree rape . We reverse that part of the judgment
    in regard to his convictions and sentence for three counts of third-degree rape, and we
    remand for proceedings consistent with this opinion .
    Graves, Minton, and Roach, JJ., concur. Wintersheimer, J ., dissents by
    separate opinion in which Lambert, C.J . ; and Scott, J ., join .
    COUNSEL FOR APPELLANT :
    John Kevin West
    McCoy, West & Franklin
    309 North Broadway
    P .O . Box 1660
    Lexington, Ky 40588-1660
    COUNSEL FOR APPELLEE:
    Gregory D. Stumbo
    Attorney General of Kentucky
    Samuel J . Floyd, Jr.
    Assistant Attorney General
    Office of Criminal Appeals
    Office of the Attorney General
    1024 Capital Center Drive
    Frankfort, Ky 40601
    RENDERED : NOVEMBER 22, 2006
    TO BE PUBLISHED
    ,;vuyrtmr (;9vurf of ~firufurkt
    2005-SC-000750-MR
    CLARENCE ROBINSON                                                              APPELLANT
    APPEAL FROM LINCOLN CIRCUIT COURT
    V.                        HONORABLE DAVID A. TAPP, JUDGE
    INDICTMENT NO. 05-CR-00033
    COMMONWEALTH OF KENTUCKY                                                          APPELLEE
    DISSENTING OPINION BY JUSTICE WINTERSHEIMER
    1 respectfully dissent from Part II of the majority opinion in which the
    majority reverses and remands Robinson's conviction and sentence for three counts of
    third-degree rape .   I simply cannot agree that upholding this marriage does not offend
    Kentucky's public policy due to the fraud perpetuated on Tennessee officials and the
    lack of true consent to the marriage by the child, S .M .H. The adults responsible for
    protecting S.M.H . purposefully altered her birth certificate and took her to another state
    for the marriage, where she was afraid she would be abandoned if she did not go
    through with the marriage . So I would hold that the trial court was correct in not
    regarding this marriage as valid and in refusing to give an instruction on marriage as a
    defense to the third-degree rape charges . I would affirm the trial court's judgment in all
    respects .
    Lambert, C.J . ; and Scott, J ., join.
    

Document Info

Docket Number: 2005 SC 000750

Filed Date: 11/22/2006

Precedential Status: Precedential

Modified Date: 4/28/2017