Glyndon Eaton v. Commonwealth of Kentucky

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NOT TO BE PUBLISHED OPINION
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RENDERED : AUGUST 21, 2008
NOT TO BE PUBLISHED
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2007-SC-000277-TG
GLYNDON EATON
ON APPEAL FROM MADISON CIRCUIT COURT
V HONORABLE JULIA HYLTON ADAMS, JUDGE
NO. 05-CR-000144
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Glyndon Eaton, was found guilty of one count of kidnapping,
one count of assault in the second-degree, two counts of rape in the first-degree
and two counts of sodomy in the first-degree by a Madison Circuit Court jury and
was sentenced to twenty (20) years imprisonment . Appellant now appeals his
conviction as a matter of right, pursuant to Kentucky Constitution § 110(2)(b),
citing as error the trial court's refusal to instruct the jury as to the lesser-included
offenses of sexual abuse, attempted rape and attempted sodomy . For the
reasons set forth below, we affirm .
BACKGROUND
In October of 2004, Appellant and his wife, Keena Morris, decided to
separate after seventeen years of marriage. Following their separation,
Appellant began to harass Morris, calling her home and driving past her parents'
residence in an attempt to locate her. Morris eventually returned to Appellant's
home three to -bur days after the initial separation in an attempt at reconciliation .
However, after a brief period of improvement, the situation inside the home
worsened as Appellant became paranoid and overly suspicious . Morris
subsequently left for a second time after the holidays in February of 2005,
moving into her parents' home . It was after this move that Appellant's behavior
toward Morris became increasingly violent and threatening . By all accounts,
Appellant also became verbally abusive during this period . Testimony indicated
that Appellant contacted Morris and stated that he would place her family
members' names in a hat and draw them out, killing each of them as he did so .
On the day before the alleged beating and rape occurred, Appellant again
phoned and threatened Morris . Tragically, the following morning Appellant made
good on his threats and carried out the attack . Appellant went to Morris'
residence and lay in wait near her driveway in the early morning hours . As
Morris was leaving for work, Appellant sprang upon her, tackling her to the
ground and held a, knife to her neck Appellant made a cut on her neck with the
knife, threatened to cut her head off, and forced her into her car, driving her
vehicle to his home where he then threw her in his bathroom . While being held
at Appellant's residence, Morris managed to contact her mother by cell phone
and told her to call the police. Shortly thereafter Appellant kicked in the door to
the bathroom, struck her with his fist, and took her back to the car. Appellant
then drove to a secluded area of the woods, forced Morris out of the car, and
slashed the tires of the vehicle, whereupon the assault continued. Appellant then
proceeded to violently remove her clothing with the knife . As he did so, Appellant
used the knife to cut off the victim's hair because "everyone thought it was
beautiful ." Appellant told Morris that his brother had gone to her parents' home
to kill them .
Morris testified that Appellant beat her viciously with his fists and gun,
threw her on top of the car, removed her tampon (Morris was menstruating at the
time), then vaginally and anally raped her with his penis and again with the barrel
of his gun, and forced her to perform oral sex on him . Thereafter, Appellant
continued beating and kicking Morris, causing significant injuries to the head,
mouth, and face. Appellant then directed the victim further into the woods and
threw away the car keys. Appellant then told Morris that he was going to kill her
before anyone could find her. Appellant again began to savagely beat her,
forced her to lie down on the ground and, for a second time raped and
sodomized her. Following this, Appellant forced Morris to perform oral sex on
him while continuing to beat her with the pistol . Morris testified that Appellant
never ejaculated .
Eventually, the victim was released and made her way to a nearby home
in the area where the occupant called 911 and she was subsequently taken to
After
Berea hospital for treatment . a rape kit was performed, Morris was
transferred to the University of Kentucky Hospital for further treatment due to the
severity of her wounds and the extensive damage to her face and mouth . One of
the attending doctors who examined Morris at Berea Hospital stated that it was
the second worst case of injuries he had ever encountered .
Overall, sixteen swabs were taken during her examination and treatment.
There was no semen, pubic hair, or DNA found on the swabs, nor any signs of
trauma inside the vagina . However, the examining doctors found dirt, debris, and
leaves inside the vagina, as well as mud, leaves and debris covering the
perineum and apparent plant material inside the anus. Bridget Holbrook, a
forensic biologist for the Kentucky State Police Forensic Laboratory, testified that
she had found Morris' DNA mixed with Appellant's on a shoe recovered from his
home.
II. ANALYSIS
Appellant contends that due to an alleged lack of physical and DNA
evidence, the jury could have reasonably concluded that he committed the
lesser-included offenses of attempted rape, attempted sodomy, and sexual
abuse. At trial, Appellant requested such instructions be given, but the trial court
ruled that evidence was not presented to support them . Appellant argues that
the trial court's failure to include these lesser-included offense instructions
resulted in substantial prejudice and reversible error. We disagree .
While it is well-settled that the trial judge is under a duty to instruct the jury
on "the whole law of the case," including instructions "applicable to every state of
the case deducible or supported to any extent by the testimony," Williams v.
Commonwealth , 208 S.W.3d 881, 883 (Ky. 2006), a tria l judge's duty to include
instructions on any lesser included offense ceases at the point when a theory has
"no evidentiary foundation ." Houston v. Commonwealth, 975 S .W.2d 925, 929
(Ky. 1998) . A determination of what issues to submit to the jury should be based
on the totality of the circumstances . Commonwealth v. Collins , 821 S.W.2d 488,
491 (Ky. 1991) (quoting Rice v. Commonwealth , 472 S.W.2d 512 (Ky. 1971)) .
Lesser-included offenses should only be given when a reasonable inference can
be drawn from the evidence that the defendant could be guilty of the lesser
offense . Little v. Commonwealth, 424 S.W.2d 819, 821 (Ky. 1967). Moreover,
we have held that lesser-included offenses are appropriate only when a
reasonable juror could afford the defendant reasonable doubt as to the greater
offense, yet believe beyond a reasonable doubt that he was guilty of the lesser
offense . Isaacs v. Commonwealth,, 553 S .W.2d 843, 844 (Ky. 1977) ; Houston,
975 EVAUd at 929 .
Here, Appellant's entire argument rests on the premise that the rape and
sodomy allegations were fabricated and the absence of physical trauma to the
sex organs and the lack of semen necessitate the inclusion of instructions for the
lesser-included offenses of sexual abuse, attempted rape, and attempted
sodomy . Appellant points to the fact that there was no trauma found inside the
vagina, nor was semen or pubic hair found . These facts, however, are not
viewed in isolation, nor are they dispositive, as we are bound to consider them
under the totality of the circumstances - not in a vacuum . See Collins, 821
S .W .3d at 491 .
In the present instance, under the totality of the circumstances, there is
but one reasonable conclusion that may be drawn from the corroborating
evidence: namely that Appellant's contention that the rape and sodomy were
fabricated and that the evidence supports the possibility that Appellant may have
attempted sexual intercourse without penetration, simply has no evidentiary
foundation . When investigators searched the scene of the rape they discovered
Morris' car located in the woods with the tires slashed and her blood inside.
Additionally, scratch marks were found on the hood, where Morris claimed the
initial rape and sodomy occurred . Moreover, Morris' hair and tampon were found
located beside the automobile .
The second instance of rape and sodomy took place in the woods as
Morris lay on the ground . Of significant import, testimony indicated that a
substantial amount of plant matter, dirt, leaves, and debris were located inside of
the anus and vagina. Thus, we are of the opinion that the only reasonable
inference which can be drawn to explain its presence is that penetration occurred
causing the contamination .
Notably, Appellant offers absolutely no evidence or alternative theory to
explain the presence of the debris and plant matter inside the victim's anus and
vagina. Instead, Appellant relies solely on the lack of physical trauma to the sex
organs . However, the Commonwealth presented ample testimony at trial to the
effect that trauma does not occur in all incidences of rape.
In Isaacs, a rape case similar to the present instance, we determined that
when the only reasonable inference that can be drawn from the evidence is that
penetration occurred, an instruction on the lesser-included offense of sexual
abuse was not warranted. See 553 S.W .2d at 844. Finding the presence of a
small laceration on the vaginal wall, we concluded that lesser-included sexual
abuse instructions were not warranted because there existed no reasonable
inference that could be drawn from the evidence which would allow a juror
reasonable doubt that the presence of the tear was caused by anything other
than "a man's penis or some other instrumentality ." Id. Here, it is manifestly
evident that the presence of dirt, debris and plant matter in the victim's anus and
vagina could not have been caused by anything other than penetration . Id .
Thus, we likewise find, from the totality of the circumstances before us,
and given the formidable weight of corroborating evidence against Appellant, that
no reasonable inference can be drawn from the evidence to support instruction
on the lesser-included offenses, as penetration undoubtedly occurred . No
reasonable juror, considering the evidence as a whole, could have concluded
beyond a reasonable doubt that the presence of the leaves, mud, dirt, and debris
inside the anus and vagina was not caused by penetration . As such, the trial
judge was under no duty to instruct on the lesser included offenses . See
Houston, 975 &Wd at 929.
III. CONCLUSION
Accordingly, finding no error and for the reasons set forth herein, we
hereby affirm the sentence and convictions of the trial court.
Minton, CJ, Abramson, Cunningham, Noble, Schroder and Scott, JJ .,
concur. Venters, J., not sifting .
COUNSEL FOR APPELLANT :
Euva D. May
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601