Billy Clark, III v. Commonwealth of Kentucky ( 2023 )

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RENDERED: FEBRUARY 16, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0477-MR
BILLY CLARK, III APPELLANT
V. ON APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE TIMOTHY COLEMAN, JUDGE
NO. 20-CR-00007
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case comes before the Court on appeal as a matter of right1 by Billy
Clark, the Appellant, from the judgment and sentence of the Butler Circuit
Court. After a jury trial, Clark was convicted of first-degree rape (victim under
twelve); first-degree sodomy (victim under twelve); two counts of sexual abuse
in the first degree; and use of a minor in a sexual performance.2 The jury then
found him guilty of being a persistent felony offender in the first degree. He was
sentenced to fifty years in prison and now appeals. For the following reasons,
we affirm.
Ky. Const. § 110(2)(b).
1
2Clark had also been charged with kidnapping, but the trial court had granted
a directed verdict in favor of Clark on that charge.
I. Facts
In July 2014, the victim, M.R., lived with her mother at Roger Garner’s
house.3 M.R. was eight years old. Her mother was a drug user, and Garner’s
house was frequented by other drug users who would stay at the house for
random periods of time. At this time, Billy Clark used Garner’s house to
hideout as he was wanted by law enforcement in connection with a stolen
hearse.
Approximately five years later in July 2019, M.R. was thirteen years old and
living with her grandmother. M.R. ran away and stayed with a friend for a
couple of days. During this time M.R. first disclosed to her friend that she had
been sexually assaulted in July 2014. After that, M.R. told her grandmother,
and the latter told M.R.’s father. M.R.’s father reported the assault to the
police.
State Trooper Carlock was the initial lead investigator of the case and he
scheduled M.R. for an interview with Dr. Patricia Faulkner-Simmons at the
Barron River Child Advocacy Center. State Trooper Edwards eventually took
over as lead investigator. He showed a 2018 photo of Billy Clark to M.R. who,
seeing the photo, identified Clark as her assailant. M.R. also testified that she
remembered the assault taking place when a hearse was on Garner’s property
and a man was staying there who was on the run from the police.
M.R. testified as to the details of the assault. Her mother had gone to the
store, and M.R. was in a bedroom folding laundry. Clark entered the bedroom
3 We use initials to protect the privacy of the victim.
2
and she tried to leave. She testified that Clark brought a knife and gun with
him into the room but did not use them in the assault. M.R. attempted to leave
but Clark grabbed her arm and pulled her back into the room. He then
instructed her to remove her clothing and had her walk around the room. He
then forced her to bend over on the bed, where he touched various parts of her
body and held her by the wrists, threatening her with violence if she told
anyone about what was happening. Clark then put on a condom and M.R.
testified that her vagina hurt “really bad” for a number of minutes. Afterward,
Clark instructed M.R. to sit up and compelled her to remove the condom from
his penis. Although she did not identify the substance, M.R. testified something
was in the condom, presumably semen. Clark next instructed M.R. to put
another condom on his penis and forced her to perform oral sex. After that was
over, Clark noticed M.R. was bleeding and told her to go take a shower. He also
once again threatened to hurt her and her mother if she told anyone what
happened.
Dr. Faulkner-Simmons testified that M.R. was born with an abnormally
webbed vagina which would have made sexual intercourse painful for M.R. Dr.
Faulkner-Simmons indicated that this condition would have prevented full
penetration, but her examination of M.R. after five years could not discount
whether an attempt at penetration had been made. Additionally, she testified
any wounds stemming from the assault would have been healed by the time of
her examination. In short, there is no medical evidence confirming or
disproving M.R.’s account.
3
Dr. Faulkner-Simmons testified about a statement M.R. made, which Clark
challenges as inadmissible hearsay. First, Dr. Faulkner-Simmons read from
her report summarizing M.R.’s statements during her interview of her, that
she did disclose to me as well that she was sexually abused by an
individual, um, and she described, where she was, who some of
the people that were there. Uh, she also named the individual that
she said abused her, um, and she said that he actually had a knife
and a gun and showed them to her. And, um, she was told, excuse
me, told not to tell anyone . . .
This testimony was objected to at trial in regard to referencing the knife and
gun, hence preserved. Later, Dr. Faulkner-Simmons testified,
I forgot to mention that when he came in, he had turned all the
lights off in the room where she was. He also had her to put his
penis in her mouth, and then from there, she kind of closed down
and said she had blocked out all the other details and couldn’t
remember anymore. Which is not an unusual occurrence.
This last statement was not objected to at trial hence the alleged error is
unpreserved.
Finally, there is one instance during voir dire that is subject to appeal. Clark
moved the trial court to strike Jurors 18 and 19 for cause. These motions were
denied, forcing him to use peremptory challenges which he would have used on
Jurors 32 and 3, and these jurors were identified to the trial court on the strike
sheet prior to seating the jury. Juror 32 was excused because 16 jurors had
already been selected thus mooting any challenge to Juror 18. But Juror 3 sat
on the jury, serving as foreperson. Because Juror 3 did sit on the jury, we
review for error as to Juror 19 since Clark’s preservation of this issue comports
with Neal v. Floyd, 590 S.W.3d 245, 252 (Ky. 2019). See also Gabbard v.
4
Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009) (holding that failure to strike
a juror for cause “can be shown to be non-prejudicial if the other jurors the
defendant would have used his peremptory strikes on do not actually sit on the
jury.”).
As for Juror 19, he was a former coroner in Ohio County and had previously
served as a witness in a case which the lead prosecutor in this case had also
prosecuted. It was the prosecutor who brought this to the attention of the
Court. Juror 19 was brought to the bench and informed the Court he did not
remember the prosecutor and would not be preferential to the Commonwealth
if selected as a juror.
Clark argues the trial court committed error by: refusing to strike Jurors 18
and 19 for cause, as noted, however, the challenge to Juror 18 is mooted
because Juror 32 did not sit on the jury; allowing Dr. Faulkner-Simmons’
hearsay statements; prohibiting Clark’s attorney from questioning M.R.
regarding her knowledge of her uncle’s alleged rape and sodomy charges; and
failing to direct a verdict on the charge for rape, as M.R. never specifically
testified to vaginal penetration by Clark and Dr. Faulkner-Simmons’ stated that
in her medical opinion M.R. was not penetrated vaginally by Clark. We now
address the merits and further facts will be developed as necessary.
II. Analysis
A. No Abuse in Refusal to Strike Juror 19
“When there is reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that juror shall be excused
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as not qualified.” RCr4 9.36. We have held time and again that partiality is a
state of mind and not a technical question, thus “the test is whether the nature
and strength of the opinion formed are such as in law necessarily . . . raise the
presumption of partiality.” Gabbard, 297 S.W.3d at 854 (quoting Montgomery v.
Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991)). This requires the trial court
to “weigh the probability of bias or prejudice based on the entirety of the juror's
responses and demeanor[,]” as well as “the credibility of the juror's answers.”
Jackson v. Commonwealth, 392 S.W.3d 907, 913 (Ky. 2013). We have also
emphasized that there is no such thing as rehabilitation. Gabbard, supra, at
853-54. Where a juror has made statements evincing a reasonable ground to
believe he or she is partial the juror ought to be disqualified, and neither the
Commonwealth, defense, nor the trial court may subject the juror in question
to a colloquy in hopes of salvaging that juror. Indeed, even where a juror’s
partiality is in a “gray area, he should be stricken.” Wallace v. Commonwealth,
478 S.W.3d 291, 298 (Ky. 2015).
As for Juror 19, the sole basis advanced for his disqualification is that he
was a coroner in an adjacent county and had previously been a witness in a
rape and murder case that the prosecutor in this case had also prosecuted.
Clark cites no statements during voir dire by Juror 19 that could be construed
as giving a reasonable basis for partiality to the Commonwealth. We reject his
citation to Futrell v. Commonwealth, 471 S.W.3d 258, 274 (Ky. 2015) as
4 Kentucky Rules of Criminal Procedure.
6
distinguishable. In that case, the juror with a previous relationship to the
assistant prosecutor had stated
When asked during the prosecutor's voir dire whether his
relationship with attorney Tobbe would “cause you to
automatically give the Commonwealth's case or witnesses more
weight than you would anything else?” Juror 75 replied, “I think
so.” The prosecutor then asked whether Juror 75's relationship
with attorney Tobbe would make it difficult for the juror to vote to
acquit the defendants even if he felt the Commonwealth had failed
to prove its case, and Juror 75 responded, “I really can't answer
that. I'm trying to be honest with you.”
Id. at 273. No similar responses occurred here, and the Futrell court obviously
found partiality for Juror 75 based on his responses and not merely his
connection to the assistant prosecutor alone. The other juror that should have
been disqualified for his relationship to the assistant prosecutor was based on
his son being a current client of the attorney. Id. at 274. But this Court noted
other reasons existed to disqualify that juror as well. Id. at 275.
In Fugate v. Commonwealth, we held the trial court should have disqualified
two jurors for cause because they had a previous relationship with the
prosecutor. 993 S.W.2d 931, 938 (Ky. 1999). One had had a living will and
incorporation papers for a business prepared by the prosecutor five years prior
to trial. Id. He expressed his satisfaction with the work and stated he might
seek his services in the future. The second was involved with the prosecutor
because of a bad check criminal case that was pending at the time of voir dire.
The juror and prosecutor had apparently gotten close enough to be on a first
name basis. Id. at 939. This Court explicitly endorsed the rule that “a trial
court is required to disqualify for cause prospective jurors who had a prior
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professional relationship with a prosecuting attorney and who profess that they
would seek such a relationship in the future.” Id. at 938.
Fugate is distinguishable because Juror 19 was not professionally involved
with the prosecutor in the same manner as in Fugate. In Fugate, both jurors
had a relationship with the prosecutor in which they had a personal interest at
stake—one had a will and business incorporation papers filed on his behalf,
and the other had a criminal case pending wherein his business was the
victim. Here, the only relationship between Juror 19 and the prosecutor was
brought about by their mutual professional obligations where Juror 19 had to
testify as coroner in a murder case. Indeed, Juror 19 denied recognizing the
prosecutor despite that. Additionally, Clark has argued that Juror 19 should be
considered a member of law enforcement. But we have held that even police
officers should not be disqualified merely because they are police officers, and
thus work with the Commonwealth Attorney’s office in a professional capacity.
Brown v. Commonwealth, 313 S.W.3d 577, 597 (Ky. 2010). Because we find
Fugate distinguishable, and there being no statement identified by Clark that
could lead to a reasonable basis of partiality, we find no abuse of discretion by
the trial court in declining to strike him for cause.
B. Harmless Error in Dr. Faulkner-Simmons’ Hearsay Statements
The Kentucky Rules of Evidence provide an exception to hearsay for medical
treatment when the “[s]tatements [are] made for purposes of medical treatment
or diagnosis and describing medical history . . .” KRE 803(4). The
Commonwealth concedes the hearsay in this case. Dr. Faulkner-Simmons’
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mention of the gun and knife had no relation to her medical treatment or
diagnosis since there was no evidence the gun and knife were used to inflict a
physical injury upon M.R. or that they had caused her some kind of emotional
trauma. As to her statement that it was not an “unusual occurrence” when
M.R. described blocking out memories of her assault, that too is generally
prohibited because it is testimony as to a “habit of a class of individuals[,]”
Sanderson v. Commonwealth, 291 S.W.3d 610, 613 (Ky. 2009) (quoting Kurtz v.
Commonwealth, 172 S.W.3d 409, 414 (Ky. 2005)), intending “to prove that the
person was a member of that class because he/she acted the same way under
similar circumstances.” Id. Sanderson gives an adequate review of this Court’s
jurisprudence demonstrating our distrust of testimony which tends to invade
the province of the jury by finding criminal conduct based on a psychological
syndrome of a victim. Id. at 612-14.
But “[n]o error . . . is ground for granting a new trial or for setting aside a
verdict or for vacating, modifying or otherwise disturbing a judgment or order
unless it appears to the court that the denial of such relief would be
inconsistent with substantial justice.” RCr 9.24. Regarding Dr. Faulkner-
Simmons’ statement about the gun and knife, the error was harmless. The
Commonwealth correctly notes that defense counsel did not ask for the
statement to be stricken from the record nor for an admonition to the jury to
disregard it. She only asked that the doctor’s testimony be kept within proper
bounds regarding medical treatment and diagnosis. The rest of her testimony
conformed (with one exception that was not objected to at trial, discussed
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below) to that request despite the trial court overruling her motion. Technically
speaking, the trial court ought to have sustained the objection but
substantively Clark “received all the relief he requested . . . thus, there is no
error to review.” Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
As to the “not an unusual occurrence” statement, being an unpreserved
objection, our review is for palpable error. “A palpable error must be so grave in
nature that if it were uncorrected, it would seriously affect the fairness of the
proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Only
if the reviewing court is convinced “the result in the case would have been
different without the error[,]” will palpable error be found. Id. In King v.
Commonwealth, we held that it was not palpable error when a police
investigator testified that “delayed reporting” was not unusual in child sexual
abuse cases, and in fact it was “very rare” for children to immediately report
such abuse. 472 S.W.3d 523, 527 (Ky. 2015). Although the testimony here was
qualitatively different, relating to M.R.’s blocked memory of the assault rather
than the five-year delay in reporting, both fundamentally involve typical
behavior of a victim of sexual abuse. But in like manner as in King, the
testimony here did not result in a manifest injustice. The testimony in King was
much more extensive than the one-off sentence expressed, unprompted, by Dr.
Faulkner-Simmons here. The Commonwealth did not pursue an improper line
of inquiry afterwards but rather moved Dr. Faulkner-Simmons’ testimony along
to the concrete, physical facts of M.R.’s case. We are not convinced the result in
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this case would have been different but for Dr. Faulkner-Simmons’ one short
statement.
C. Right to Cross-Examination was not Infringed
Clark also contends that his right to cross-examination was violated when
the trial court precluded him from asking M.R. about how she acquired
knowledge regarding the sexual acts she described as being perpetrated by
Clark. In other words, Clark alleges that M.R. had previously heard familial
discussions regarding her uncle who also had been charged with rape and
sodomy prior to her first reporting the assault. Clark contends that it was her
knowledge of these charges against her uncle that allowed M.R. to concoct the
allegations against him. Moreover, Clark implies in his briefing that M.R. made
up the story of an assault to avoid getting in trouble for running away; and her
knowledge of her uncle’s alleged rape and sodomy charges was relevant to that
alternate theory. We note that while the trial court prohibited questions
regarding her uncle, it did say Clark could cross examine M.R. regarding her
alleged motivation to accuse him of rape in order to avoid getting in trouble for
running away.
In Basham v. Commonwealth, we held the constitutional right to cross
examination “does not give criminal defendants a right to present evidence that
is not probative, nor does it authorize a fishing expedition at trial.” 455 S.W.3d
415, 420 (Ky. 2014). Basham had sought to cross examine the victim regarding
her visiting pornographic websites in order to provide evidence that she “was
previously exposed to the sort of sexual acts that she described in her
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allegations of abuse.” Id. at 419. This has come to be known as the “sexual
innocence inference.” “[B]ecause most children of tender years are ignorant of
matters relating to sexual conduct, a child complainant's ability to describe
such conduct may persuade the jury that the charged conduct in fact
occurred.” Id. at 418 n.7 (quoting Grant v. Demskie, 75 F.Supp.2d 201, 213–16
(S.D.N.Y. 1999)). Basham, however, had only sought to ask the victim if she
had ever visited a website with naked people on it. Consequently, we held
“merely seeing images of naked people” was not an adequate alternate source
of knowledge for the sexual acts alleged in that case, thus the offer of proof was
neither probative nor relevant and therefore inadmissible. Id. at 420.
Although Clark has not alleged the jury would have inferred from M.R.’s age
alone that her knowledge of sexual acts could only be explained by her
experiencing them because of Clark’s assault, the underlying rationale of
Basham is still applicable. Like in Basham, Clark’s offer of proof lacks the
requisite specificity for the Court to say it was relevant. There is nothing in the
record to demonstrate M.R.’s uncle’s alleged rape and sodomy were in anywise
similar to what she claims to have undergone, nor is there any avowal
testimony that she overheard any family discussions regarding her uncle’s
alleged actions. The line of questioning was irrelevant and inadmissible, and
the trial court properly excluded it.
D. No Error in Refusal to Direct a Verdict on Rape Charge
Finally, Clark argues the trial court should have directed a verdict in his
favor on the rape charge because Dr. Faulkner-Simmons testified she did not
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believe penetration occurred and M.R. never specifically testified to being
penetrated vaginally by Clark.
The legal standards for a directed verdict motion are clear: ‘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.’ Trowel v. Commonwealth, 550 S.W.2d 530,
533 (Ky. 1977). ‘The trial court must draw all fair and reasonable
inferences from the evidence in favor of the party opposing the
motion, and a directed verdict should not be given unless the
evidence is insufficient to sustain a conviction. The evidence
presented must be accepted as true. The credibility and the weight
to be given the testimony are questions for the jury
exclusively.’ Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
The standard for appellate review is equally clear: ‘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.’ Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991).
Eversole v. Commonwealth, 600 S.W.3d 209, 217-18 (Ky. 2020). “We construe
all evidence below in a light most favorable to the Commonwealth.”
Commonwealth v. Jones, 497 S.W.3d 222, 225 (Ky. 2016).
Our analysis depends first and foremost on the statute. First-degree rape
occurs when one “engages in sexual intercourse with another person” by
forcible compulsion or the victim is either physically helpless or is twelve years
or younger. KRS5 510.040. “Sexual intercourse” has been defined by the
General Assembly as “its ordinary sense and includes penetration of the sex
organs of one person by any body part or a foreign object manipulated by
another person.” KRS 510.010(8). Any penetration, “however slight[,]” is all that
5 Kentucky Revised Statutes.
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is required to meet the element of the crime. Id. Because the legislature has
also defined “deviate sexual intercourse” to mean “any act of sexual
gratification involving the sex organs of one person and the mouth or anus of
another[,]” rape in the first degree of a female is necessarily limited to
penetration of her vagina. KRS 510.010(1).
The peculiarity of this case arises from M.R.’s vaginal abnormality. Because
of this abnormality, Dr. Faulkner-Simmons did state “I do not believe she had a
penis penetrating her vaginal area.” But that is one, isolated sentence and does
not accurately convey the whole of her testimony. Dr. Faulkner-Simmons
described M.R.’s abnormality as “The vaginal opening wasn’t a normal one-hole
opening. It was webbed, if you will, and had multiple openings because there
was tissue that criss—you know, crossed over from each side.” Because of this
she also stated, “If there was a potential for penetration, it probably would not
have gone through, but it would have been painful.” Thus, the Commonwealth
asked “Could the penis have penetrated the vagina, just not fully?” To which
she responded unequivocally “Right. Correct.” It is therefore incorrect to
describe Dr. Faulkner-Simmons’ opinion as no penetration whatsoever
occurred. She admitted an attempt at penetration could have occurred and
that it could have been less than full penetration, i.e., “however slight.” But we
have already detailed that the physical medical evidence was lacking to confirm
any kind of penetration, so the case depended upon M.R.’s own testimony.6
6 “The testimony of a single witness is enough to support a conviction.” King,
supra, at 526.
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M.R.’s testimony never included an explicit statement with the term
“penetration.” But “[t]he fact of penetration may be proved by circumstances.”
Jones v. Commonwealth, 833 S.W.2d 839, 841-42 (Ky. 1992). Moreover,
“[a] jury may make reasonable inferences from circumstantial evidence.”
Commonwealth v. James, 586 S.W.3d 717, 721-22 (Ky. 2019). And as we have
just stated, on a motion for a directed verdict the trial court is required to make
all fair and reasonable inferences in favor of the Commonwealth, as well as
accepting M.R.’s account as true. Eversole, supra.
M.R. testified during Clark’s attack that “I just looked down and something
hurt really, really bad.” In another colloquy with the Commonwealth she again
stated,
M.R.: “Something really, really bad hurt.”
Commonwealth: “What part of your body hurt?”
M.R.: “My vagina.”
Commonwealth: “Was that before or after he put on the
condom?”
M.R.: “After.”
Finally, she testified after the attack “I was bleeding and stuff . . . he told me to
go take a shower.” Dr. Faulkner-Simmons testified that M.R.’s abnormality
would have made penetration painful, and common sense tells us that an
eight-year-old would have experienced pain upon being penetrated vaginally.
There is no logical explanation for the pain M.R. described if penetration did
not occur. M.R.’s testimony of bleeding after the attack also has no logical
explanation without penetration as there was no other testimony that he
otherwise beat her or cut her. We cannot say, viewing the evidence as a whole,
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that it was unreasonable for a jury to find Clark had raped M.R. Dr. Faulkner-
Simmons’ testimony does not discount some kind of penetration occurring, and
a juror could (in fact, did) make reasonable inferences from M.R.’s testimony
that some kind of penetration of her vagina had occurred.
III. Conclusion
For the aforementioned reasons, we affirm Clark’s convictions.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Mark D. Berry
Assistant Attorney General
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