John Hunter v. Commonwealth of Kentucky ( 2023 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, RAP 40(D), 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OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A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 ALONG
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
THE ACTION.
RENDERED: APRIL 27, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0186-MR
JOHN HUNTER APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT
V. HONORABLE EDDY COLEMAN, JUDGE
NO. 20-CR-00350
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
John Hunter was convicted in the Pike Circuit Court of one count of first-
degree rape and one count of incest by forcible compulsion. These convictions
involved sexual acts against his adult biological daughter, R.A. Hunter was
sentenced to twenty years in prison consistent with the jury’s recommendation
and he now appeals as a matter of right. After careful review, we affirm the
judgment.
FACTS AND PROCEDURAL HISTORY
In large part, there is little dispute regarding the underlying facts of this
case. R.A. is the biological daughter of John Hunter. Hunter separated from
R.A.’s biological mother at the time of her birth. Hunter saw R.A. relatively few
times throughout her life. His counsel stated in opening he had seen her
approximately nine times in her life. Similarly, Detective Chase Maynard with
the Kentucky State Police testified that R.A. told him she had only seen her
father approximately six times in her life. According to R.A., she did not see
him often; however, he did send her birthday cards which caused her to long
for a further relationship with her father.
By all accounts, R.A. reached out to her father in early 2020 to request
his help with the remodel of her home in Pike County. R.A.’s father was in the
construction business, and she believed it was a good idea for him to help her
with the project. Further, she had an idea that perhaps the two of them could
start a construction business. Hunter agreed to come help with the remodel
and subsequently stayed in a camper in the backyard of R.A.’s residence.
On the evening of July 2, 2020, R.A. and Hunter went together in a
Chevy Blazer to look for a rose bush planted by Hunter’s great-grandmother.
Hunter drove the vehicle. Hunter told R.A. that they could replant the bush in
R.A.’s yard. The two of them had gotten into an argument the night before over
a domain name for their company. The excursion to obtain the rose bush was
also characterized as a peace mission between father and daughter.
The record also established on the evening of the assault both had been
drinking. Hunter was drinking “Twisted Teas” and R.A. also acknowledged
drinking vodka shots. While looking for the rose bush, both parties state that
Hunter stopped the truck and said they were stuck. At this point the parties’
stories differ. R.A. states when she exited the vehicle, Hunter came up to her
from behind and grabbed her shorts by the belt loops. He pulled off her pants,
and R.A. was scared and startled. She pleaded with him to look at her, hoping
2
it would make him realize what he was doing. R.A. testified that he performed
oral sex on her as well as penetrated her vagina with his penis. She stated that
he commented “of course she had the best pussy because he made it.” (VR
02/07/22; 03:03:49). R.A. was burned by a cigarette on her wrist and between
her breasts during the incident. Eventually, the assault stopped when R.A.’s
phone rang with her sister calling. She answered the phone but did not tell her
sister what was going on at that point because she did not feel safe to do so.
At that time, the assault stopped. Hunter took R.A. home. She testified
that he told her she “better wash that thing.” (Id. at 03:08:20). R.A. stated her
body hurt and she wanted to get her kids out of the house. She further stated
she wanted to get warm in a hot bath. Later, she took her kids to her
grandmother’s, and her sister took her to the hospital. R.A. had her sister pull
over at a McDonald’s where she called the police to report the incident. She
then went to the emergency room.
At the hospital, a specifically trained sexual assault nurse examiner,
“SANE,” performed an examination. Nurse Cindy Adkins with the Pikeville
Medical Center performed the exam and testified at trial. Nurse Adkins had
been a nurse for sixteen years and had a sexual assault certification. R.A.
testified the exam was very hard for her. She told a story of medical personnel
pulling her open and pouring dye on her so photographs could be taken. She
testified that she was in pain, her back hurt, and she felt like she had rocks
thrown at her.
3
Nurse Adkins detailed the examination of R.A. She took a blood sample,
a vaginal swab, and a buccal swab to preserve any DNA evidence. The nurse
also testified she took hair samples. She explained a diagram of the vagina like
a clock and noted blunt force trauma and tearing to R.A.’s vagina at twelve-o-
clock and six-o-clock. She further photographed the victim’s injuries. The
vaginal swab tested positive for semen. The DNA analyzed from the swab was
consistent with three individuals and both Hunter and R.A.’s DNA were
present. The testimony did not indicate if the DNA was from saliva or semen.
Notwithstanding the uncertainty of which type of fluid, the father’s DNA
appeared on the vaginal swab from his daughter.
Kentucky State Police Trooper Chase Maynard also testified at trial.
Maynard went to the hospital to interview R.A. after the incident. He also
collected the rape kit. Trooper Maynard said that R.A. was banged up, upset,
and scared. He stated he took pictures of her injuries. Trooper Maynard
testified that R.A. indicated the perpetrator was her father. As a result of his
investigation, he obtained an arrest warrant for Hunter. During his testimony,
Trooper Maynard also played an interview he conducted with defendant Hunter
at the jail. Hunter’s Miranda rights were read to him at the beginning of the
interview. The jury heard Hunter repeatedly deny the incident. He stated his
truck had gotten stuck that day on Bear Fork. He acknowledged he was with
R.A., and they were both drinking. Later in the interview, he stated that R.A.
was dancing on him. He also testified she said, “spit on it, Daddy, spit on it for
me.” (Id. at 02:01:25) Hunter stated he suffered from erectile disfunction and
4
did not believe he could have had his penis go inside her. He also stated he
could not remember if he took Viagra that day.
Hunter did not testify at trial and the defense did not call witnesses. In
arguing jury instructions, the defense requested a lesser-included instruction
of sexual misconduct. The trial court ruled it would give a lesser-included
instruction of sexual abuse but declined to give an instruction on sexual
misconduct. After deliberation, the jury found Hunter guilty of first-degree
rape and incest by forcible compulsion. Defense counsel argued that
sentencing on both would violate double jeopardy as they arose from the same
incident. As a result, the Commonwealth dismissed the incest charge. This
left the first-degree rape conviction on the table for the penalty phase. During
the penalty, the defense asked for the minimum sentence and the
Commonwealth did not make an argument. The jury recommended a penalty
of twenty years in prison on the first-degree rape conviction.
Importantly for this review, on February 10, 2022, two days after trial,
Hunter’s counsel filed a motion to set aside the verdict and for a new trial. In
the motion, defense counsel stated the day after trial, counsel for the
Commonwealth informed defense counsel that Hunter’s statement should have
been subject to suppression. The record reflects that Hunter was assigned an
attorney on July 6, 2020. Trooper Maynard’s interview with the defendant was
July 7, 2020. Despite having counsel at the time, Hunter was alone during the
interview. Hunter did not make a motion to suppress his statement prior to
5
the trial. Further, Hunter did not object to the statement when it was
introduced at trial by the Commonwealth.
Judge Coleman held a hearing on the motion for a new trial. At the
hearing, defense counsel argued that the statement influenced her advice to
her client not to take the stand. Counsel argued the trial would have
proceeded differently without the statement. The Commonwealth argued that
there was significant other evidence in the case and the jury’s finding did not
hinge on defendant’s statement. To wit, the jury also heard testimony from the
victim and saw photographs of her injuries. The Commonwealth cited the DNA
results and testimony from witnesses. The trial court overruled defendant’s
motion for a new trial. Ultimately, the trial court imposed the maximum
sentence of twenty years on the conviction for first-degree rape. This appeal
follows.
ANALYSIS
On appeal, Hunter argues two errors. First, the trial court erred by
denying his motion for a new trial. This is based upon the argument that
Hunter’s recorded statement should have been suppressed. Second, the trial
court erred in denying the defense’s requested instruction for sexual
misconduct. We address each argument in turn.
I. The trial court properly denied Hunter’s motion for a new
trial.
Hunter first argues that the trial court erred in denying the defense’s
motion for a new trial because the Commonwealth’s case relied heavily on a
recorded statement that was taken in violation of Hunter’s due process rights.
6
Counsel argues the contents of the recorded statement should have been
suppressed because it likely angered the jurors. Rule of Criminal Procedure
(RCr) 10.02 governs the trial court’s authority to grant a new trial. The rule
states “[u]pon motion of a defendant, the court may grant a new trial for any
cause which prevented the defendant from having a fair trial, or if required in
the interest of justice.” RCr 10.02(1). Defendant’s arguments for a new trial
fail for the following reasons.
First, Hunter failed to properly raise this issue before or at the time of
trial. It is undisputed that Hunter did not object to the introduction of the
recorded statement when it was played during Trooper Maynard’s testimony.
Further, Hunter neither filed a motion to suppress the statement nor a pretrial
motion in limine to exclude the introduction of this evidence. Those were the
proper remedies for excluding the statement. Without knowing either side’s
strategy, it certainly could have been reasonable for the defense to allow the
statement to be played because it presented the defendant’s denial of the
incident to the jury. Hunter further argues that the statement likely angered
the jurors based upon his statements regarding his daughter and his
rationalizations that they had not known each other well. Hunter argues he
was prejudiced by the admission of the statement. For emphasis he points to
the fact that the jury watched Hunter’s statement again during deliberations.
While it is impossible for this Court to know whether the jury interpreted the
statement to characterize Hunter as truthful and misunderstood or pugnacious
7
and dishonest, it seems fundamentally unfair to allow defense counsel to wait
and decide after the verdict whether to seek suppression.
RCr 10.06(1) includes “newly discovered evidence” as a potential basis for
granting a new trial. In fact, the Commonwealth’s brief analyzes defense’s
motion under a “newly discovered evidence” standard, reasoning this was the
only clear basis for the motion. The Commonwealth argues it is an error to
characterize Hunter’s statement as newly discovered evidence. It submits that
Hunter’s motion should have been accompanied by an affidavit showing he
exercised sufficient diligence to obtain this evidence prior to trial. Collins v.
Commonwealth, 951 S.W.2d 569, 576 (Ky. 1997) (citing Wheeler v.
Commonwealth, 395 S.W.2d 569 (Ky. 1965)). There was no such affidavit or
explanation. In fact, the record is clear that the interview was on July 7, 2020,
and that counsel was appointed for Hunter on July 6, 2020. Both the
Commonwealth and the defense had equal access to the dates relevant to this
issue. As a result, this is not a situation of a failure to disclose by the
Commonwealth or where information was hidden from either party.
In addition, even if this Court were to decide that defendant’s motion
presents newly discovered evidence, it is well-accepted that a new trial is only
warranted based upon newly discovered evidence that carries such a
significance that it would change the outcome or verdict with reasonable
certainty. Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008).
Courts have found that new evidence, which is merely cumulative, collateral or
impeaches a witness is not sufficient to warrant a new trial. Id. If the evidence
8
would have probably induced a different conclusion by the jury, then the
interests of justice demand that the defendant is entitled to have the evidence
placed before the court. Id.In this case, the statement at issue was a denial of guilt. Furthermore,
the jury had other significant evidence establishing guilt. The SANE nurse
testified that Hunter’s DNA was in the vagina of the victim. In addition, there
were visible physical injuries to the victim’s vagina that were both documented
and photographed at the hospital. The jury heard testimony from the victim
who described the incidents and the rape in her own words. The jury heard
from other witnesses who observed the victim soon after the incident. Defense
counsel has failed to show with reasonable certainty the outcome of the trial
would have been different but for the admission of the statement.
Hunter countered in his reply brief that it may not be newly discovered
evidence but, “it seems more reasonable upon fair reading of the defense
motion that this is a situation of newly uncovered case law, or a new realization
of the application of case law to existing facts.” Despite this assertion, Hunter
does not cite any new or changed legal authority he alleges support his
position. He declines further to provide an analysis or any prior decisions
applying existing law in a manner consistent with this theory.
This situation is more properly characterized as invited error. Under
Kentucky law, a party is generally estopped from asserting an invited error on
appeal. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) (citing
Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). In Quisenberrry, this
9
Court looked to the Ninth Circuit and stated that a party’s knowing
relinquishment of a right is not subject to review. Id. at 38 (citing United States
v. Perez, 116 F.3d 840 (9th Cir. 1997)). “Invited errors amount to a waiver and
are not subject to appellate review.” Webster v. Commonwealth, 438 S.W.3d
321, 324 (Ky. 2014). In Kelly v. Commonwealth, 554 S.W.3d 854, 866 (Ky.
2018), the Court reiterated this point and noted even a statement made
violating the defendant’s Miranda rights that was later admitted at trial to be
an invited error. See Clay v. Commonwealth, 2012-SC-000421-MR, 2014 WL
4160134, at *3 (Ky. Aug. 21, 2014).
Defendant argues despite his failure to object at trial, this Court’s
reasoning in Keysor v. Commonwealth, 486 S.W.3d 273, 282 (Ky. 2016),
requires a new trial. In Keysor, as here, the defendant was represented by
counsel when the police took a statement from him. Id. at 275. The defendant
made a motion to suppress the statement and entered a plea of guilt reserving
for appeal the issue of the statement. Id. at 275-76. The Court held once the
right to counsel has attached by the commencement of formal criminal
charges, any subsequent waiver of that right during a police in-custody
interview was ineffective. Id. at 282. However, Keysor is distinguishable
because the defendant timely made a motion to suppress the statement prior to
the plea. While Keysor stands for the proposition that Hunter’s waiver of
counsel after Miranda warnings was not sufficient, it does not address a
defendant’s failure to raise the issue until after trial.
10
Finally, this Court reviews a trial court’s decision regarding a motion for
a new trial on an abuse of discretion standard. Bedingfield, 260 S.W.3d at
810. This Court does not find the trial judge’s decision “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Here, Judge
Coleman held a hearing on a motion for a new trial. He further entered a
written order with findings denying the motion. In the order entered on April
13, 2020, the trial judge found the motion lacked merit pursuant to Fortney v.
Commonwealth, 290 Ky. 659, 162 S.W.2d 193, 195 (1942), which provides that
a verdict in a criminal case should be set aside only when it is so flagrantly
against the evidence as to indicate it was reached as a result of passion or
prejudice on the part of the jury. The trial court found that the jury relied on
other evidence outside of the statement in reaching their verdict. The trial
court also noted the defendant denied the rape occurred in the statement. In
addition, the trial court held that the proper vehicle was a suppression motion
or an objection at trial. Overall, the trial court’s decision to deny the motion
was not unreasonable, unfair or unsupported by sound legal principles. We
find no abuse of discretion.
II. The trial court properly denied defendant’s requested
instruction of sexual misconduct.
Hunter’s next argument is that the trial court erred in not providing an
instruction on sexual misconduct as a lesser-included offense of first-degree
rape. Hunter tendered and argued for both a sexual abuse and sexual
misconduct instruction, and therefore, this issue is preserved for appeal.
11
Swan v. Commonwealth, 384 S.W.3d 77, 98 (Ky. 2012). Having determined
this issue is preserved for review, the Court next must decide if such an
instruction was warranted. When a trial court errs in either failing to provide a
requested jury instruction or in providing an unwarranted jury instruction, an
appellate court should review under an abuse of discretion standard.
Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). When reviewing an
allegation of error in an instruction regarding its content, the Court reviews the
decision de novo. Id. Here Hunter alleges the trial court erred in denying his
request for an instruction on sexual misconduct and the Court reviews this
decision under an abuse of discretion standard. Caudill, 540 S.W.3d at 367.
A defendant has the right to have every issue of fact raised by the
evidence and material to his defense submitted to the jury on proper
instructions, including instructing as to lesser-included offenses. Allen v.
Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011). An instruction regarding a
lesser-included offense is warranted if under the evidence presented a
reasonable juror could have a reasonable doubt as to the defendant’s guilt for
the greater charge but find beyond a reasonable doubt that the defendant is
guilty of a lesser charge. Id. In this matter, the jury was instructed on first-
degree rape and first-degree sexual abuse as the lesser-included offense.
Considering the evidence under these instructions, the jury found Hunter
guilty of first-degree rape.
Kentucky Revised Statute (KRS) 510.140(1) states “[a] person is guilty of
sexual misconduct when he engages in sexual intercourse or deviate sexual
12
intercourse with another person without the latter’s consent.” Hunter argues
that there is nothing in the plain language of KRS 510.140 that mentions any
requirement as to the age, relationship, or capacity of the alleged victim.
When considering this argument, at first blush, it appears to carry great
weight. However, there is significant jurisprudence by this Court holding that
sexual misconduct is only a lesser-included offense to first-degree rape in
situations where it is possible, because of the perpetrator’s age, that he or she
is too young to be guilty of a felony offense. In Cooper v. Commonwealth, 550
S.W.2d 478, 480 (Ky. 1977), we stated:
KRS 510.140 therefore, as interpreted by the commentary, is
concerned with cases not specifically covered by other sections of
Chapter 510, and appellant’s argument that he was convicted in
violation of the equal protection amendment is without merit. In
the present case both appellant and the victim were over 21 years
of age and neither was physically or mentally incapacitated. KRS
510.140 was simply not applicable and the trial court properly
refused to instruct the jury on the offense of sexual misconduct.
The Court affirmed this position in Jenkins v. Commonwealth, 496
S.W.3d 435 (Ky. 2016). The Court again analyzed how to construe KRS
510.140 with other statutes outlining nonconsensual intercourse. Following
the same reasoning as Cooper, the Court found defendant’s conviction of first-
degree rape and first-degree sodomy did not warrant sexual misconduct as a
lesser-included offense. Id. at 450. The Court found that because both the
defendant Jenkins and the victim were over the pertinent ages at the time of
the offenses, sexual misconduct had no application to the case. The Court
further observed that while the plain language of the statute overlapped with
other statutes outlining rape and sodomy, the commentary to the statute
13
expressly adopted by the General Assembly indicated that the misdemeanor
was intended to fill the gaps left in statutory rape and statutory sodomy cases.
Id. In Jenkins the Court notes that this interpretation of KRS 510.140 has
been applied a number of times. Id. (citing Deno v. Commonwealth, 177 S.W.3d
753 (Ky. 2005) and Spencer v. Commonwealth, 554 S.W.2d 355 (Ky. 1977)).
Hunter requests this Court instead adopt the reasoning of the dissent in
Jenkins. The dissent notes that the cases supporting this interpretation of the
sexual misconduct statute have respected stare decisis but strongly criticizes
the reliance on legislative commentary rather than the plain language of the
statute. Hunter states that a sexual misconduct instruction is appropriate
because a reasonable juror based on these facts could have believed that the
forcible compulsion necessary for a first-degree rape was not present despite
R.A.’s lack of consent. We disagree.
In this case, Hunter was forty-two years old at the time of the alleged
assault. There is no dispute that R.A. was an adult at the time of the assault.
Further, there is no evidence that either was mentally incapacitated at the time
of the incident. Even assuming the facts in this case merit such an
interpretation, the case law interpreting these statutes does not support using
the instruction as argued by defendant. Additionally, the jury had the lesser
option of sexual abuse first as outlined in KRS 510.110. Both because of
legislative intent and judicial interpretation, the trial court properly declined to
include the charge of sexual misconduct.
14
CONCLUSION
For the forgoing reasons, we affirm the judgment and sentence of the
Pike Circuit Court.
All sitting. Vanmeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,
JJ., concur. Thompson, J., concurs in result only.
COUNSEL FOR APPELLANT:
Molly Mattingly
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Thomas Allen Van De Rostyne
Assistant Attorney General
15