LAMBERT, Judge.
Chauncy Rhodes was convicted by the Jefferson Circuit Court of one count of first-degree rape and one count of first-degree sodomy and was sentenced to fifteen years to serve. He now directly appeals his conviction and sentence. After careful review, we affirm.
On November 11, 2009, Rhodes was indicted for the first-degree rape and first-degree sodomy of C.C. which occurred on October 30, 2011. After a jury trial in March 2013, Rhodes, who did not testify, was convicted on both charges. The jury recommended fifteen years on each count to run concurrently for a total of fifteen years' imprisonment. On July 2, 2013, the trial court entered a final judgment, sentencing Rhodes in conformance with the jury's recommendation.
At trial, C.C. testified that she went to a Halloween party a few blocks from her apartment on October 29, 2011. The party was at the apartment of Ellen F. and her roommate, Brittney K. C.C. testified that there were about twenty-five people at the party, and the party-goers consisted mainly of members or former members of the University of Louisville women's rowing team. C.C. had been a member of the team from 2008 to 2010. C.C., a lesbian, was best friends with Ellen, and she and Ellen had dated for about a month a couple of years before the party. At the time of the party, Ellen was dating Kendra B. C.C. testified that Ellen's relationship with Kendra did not upset her.
C.C. arrived at the party around 10:30 or 11:00 p.m. She went alone because her roommate was not feeling well. C.C. brought Jagermeister and Red Bull Energy Drink to drink at the party and remembers drinking three to four "Jager bombs," which are shots of Jagermeister dropped into a glass of Red Bull. C.C. played some music from her iPod and walked around the party socializing and having a good time with her friends. C.C. would go back to the kitchen to make herself a drink when she wanted one. While C.C. was in the kitchen, she started to feel sick and threw up in the kitchen sink. She testified that she had probably been at the party for an hour or an hour and a half when she got sick. After that she was "pretty sure" there was more drinking, but she did not remember much after that point. C.C., who was twenty-three years old at the time of trial, testified that it was uncommon for her to throw up while drinking.
C.C. had "flashes" of throwing up two other times while at the party: in the bathroom sink and on Brittney's bed. The next thing C.C. remembered was waking up in a strange place and something was hurting her; she remembered waking up on her stomach and not being able to get up either because she was drunk or underneath Rhodes. She did not know what hurt; she just knew it was something near her vagina. The second time she woke up she had rolled over and realized that she was having intercourse and that there was a penis inside her vagina. Although she was able to sit up, she was either pushed or grabbed to sit back down. There was a lot of panicking going on in her head. While her shirt and bra were still on, she could not find her shorts or underwear. She grabbed her shoes and socks, found her shorts and underwear, and put her underwear in her pocket. It was still dark outside and it was cold; she sprinted the two blocks to her apartment.
C.C. testified that she made two phone calls while she was running home; both were made to her most recent two ex-girlfriends. She was hysterical and not very coherent on the phone with them. She was not able to talk correctly, and she could not imagine that she made much sense. These calls were made around 3:15 in the morning. Also, while running home, she got an alert on her phone that Rhodes had sent her a Facebook message. It said something to the effect that they should do that again sometime, along with a winkie face emoticon. It also said he would not tell anyone. C.C. passed out again about fifteen minutes after she got back to her own room, and she was still on the phone with Bridget R. at the time she passed out.
Later in the morning, C.C. told her roommate she had been raped and her bottom hurt really bad; she was not sure if anything else had happened near her "butt" area. She called her father at 8:45 a.m. C.C.'s father told her to call the police and said he would be there in a little while. Her father lived in Illinois, seven hours away. C.C.'s roommate helped her call the police because she was a mess. Three officers subsequently showed up. They asked her some basic questions and instructed her to collect the clothing she had worn. She still had the clothes on so she took them off and put them in a bag. On the way to the emergency room, C.C. showed the police where the party had been and told them who had done this to her.
C.C. was at the hospital from 11:00 a.m. to 6:00 p.m. The nurse checked her entire body, including her anus and vagina. The nurse put dye "down there" and took pictures. The nurse also documented some bruising and tearing on her vagina and anus. C.C. stated that she needed to "poop," but that she was too scared because it hurt really badly. Afterward, C.C. returned to her apartment and met with her father.
C.C. explained to the jury that she knew Rhodes—they were acquaintances and had mutual friends. They were also Facebook friends, but they did not "pal around together." She did not remember seeing him at the party or chatting with him at all. She had never flirted with Rhodes, but he had flirted with her the previous summer through Facebook. He had sent a message to the effect that he thought she was pretty cool and wanted to "hang out." C.C. told him they could hang out, but that she was gay. C.C. had come out to her friends in 2007, and she had never had sex with a man. She had dated a guy in high school, but had only held hands with him and kissed him. She never consented to having sex, either vaginally or anally, with Rhodes.
Britney K. testified that C.C. was very intoxicated at the party and described her as not being mentally there at all. C.C. was very out of it. After C.C. vomited in Britney's bedroom, Britney put C.C. out on the porch to get some fresh air and so that Britney could clean up the mess. C.C. was not hanging out with Rhodes at this time. Britney testified that C.C. was outside for two minutes by herself before Ellen and Kendra went out there. Britney never saw Rhodes sitting on the porch with C.C.
Ellen F. was friends with C.C. and had been on the rowing team with her. Ellen testified that she and C.C. dated for about a month approximately four years before the trial. Ellen was also friends with Rhodes; he lived in the apartment above her. Both Rhodes and C.C. were at the party on October 29, 2011. Ellen testified that she had seen C.C. drunk before, but that night was "one of the drunkest" she had ever seen C.C. Ellen did not see C.C. get sick, but was aware she had gotten sick in both the kitchen and the bathroom and saw the aftermath in Britney's room. Ellen made the conscious decision to take C.C. home. C.C. had probably been at the party for an hour and a half to two hours at that point.
Ellen saw C.C. and Rhodes sitting on the porch; she could not tell if they were talking because she was inside. She had gone inside to get a warm coat. When she came back outside, C.C. was walking up the external steps with Rhodes to Rhodes's apartment. Ellen and Kendra followed them into Rhodes's bedroom. C.C. did not have good balance and was not walking very well at this point. She fell into Rhodes's bed. Rhodes indicated that he was okay with C.C. staying the night; she was too drunk to walk the two blocks home. Ellen testified that C.C. was trying to speak but she was not coherent. C.C. was dry heaving and slurring her words. Ellen thought C.C. was the most drunk she had ever been. Rhodes put a trash can beside the bed where C.C. was laying.
Ellen sat in the middle of the bed, with C.C. on one side closest to the trash can and Rhodes on the other side. They were watching TV, and at this point, Kendra left. After a while, C.C. was not crying anymore and kept falling asleep. Ellen was not sure if she was asleep or passed out, but C.C. did not appear to need her assistance anymore, so she left.
Kendra B. was Ellen's girlfriend. She was an officer with the Louisville Metro Police Department, and Rhodes had been in her recruiting class. Kendra and C.C. were good friends. Kendra had met C.C. through a previous girlfriend, Ashley E., who was C.C.'s roommate.
Kendra testified that C.C. arrived at the party in a good mood and was bouncing around talking to different people. She had a bottle of Jagermeister and was mixing it with Red Bull. Kendra became aware that C.C. was getting sick. After C.C. got sick, it appeared she became more depressed. Kendra thought C.C. was embarrassed and did not know where she was or what she was doing. Kendra testified that C.C.'s eyes were open. Kendra knew C.C. was drunk because she was incoherent and was not grasping what people were saying to her.
C.C. had upset a lot of people at the party when she got sick several times, and Kendra and Ellen wanted her to be safe. C.C. was sitting on the back steps of the apartment while Ellen and Kendra were trying to figure out what to do with her. Kendra saw two pairs of legs going up the steps, and she and Ellen followed C.C. and Rhodes to his room. Kendra and Ellen talked to Rhodes, and they agreed that C.C. could stay there. Kendra left and did not see C.C. again. Kendra spent the night at Ellen's apartment that night and did not hear anything from upstairs, even though Rhodes's room was right above Ellen's room.
Detective John Grissom took a taped statement from Rhodes at 1:45 p.m. on October 30, 2011, and this statement was played for the jury at trial. Rhodes said that Ellen and Kendra brought C.C. up to his room and asked if she could stay. He said that was fine. Rhodes said that Ellen and Kendra did not stay long—they just asked if C.C. could stay and left. After Ellen and Kendra left, Rhodes said that he and C.C. lay down and were watching TV. At some point, C.C. kissed Rhodes and asked if he had a condom. Rhodes got one. According to his statement, at first C.C. was "on top." Then Rhodes got on top. The condom broke and Rhodes got another one. Rhodes told the detectives that C.C. kept saying, "f____k me, f____k me, f____k me."
Rhodes insisted during his statement that all the sex was vaginal. He denied having oral or anal sex with C.C. He also denied having an orgasm and said he stopped the sex because he was tired and drunk. C.C. never said stop or do not stop; she did not say anything. She stayed five or ten minutes longer before getting dressed and leaving. She said if she stayed she would not get up to go to work the next day. Rhodes knew C.C. was a lesbian, and he had never known her to be with a guy. He could not explain to detectives why she would have come on to him. He also told Detective Grissom that C.C. never said anything while they were watching TV; if they talked he did not recall it. He said things went from watching TV to kissing to having sex and that C.C. was coherent. He claimed that C.C. never fell asleep while she was in his room; she was awake the whole time she was with him. Rhodes said C.C. was fine when she left and was not upset. He ultimately said when he was "going from behind" his penis would slip out and that he could have penetrated her anus, but he was not looking for it.
Melissa Edin, the Sexual Assault Nurse Examiner (SANE) coordinator at U of L's Trauma Center examined C.C. on the day of the attack. Melissa described C.C. as having a flat sad effect and as crying at different times throughout the examination. The jury was shown photographs of C.C.'s external injuries. She had a red abrasion across her posterior right wrist area, two contusions at the top of her left breast, a red abrasion down the back of her neck, and two parallel abrasions down the left side of her neck. The abrasions on her wrist and on the side and back of her neck were consistent with fingernail abrasions. Something had struck C.C.'s skin to cause the contusions.
The injuries to C.C.'s anus were so significant and so deep that Melissa did not have to apply dye to see them. There were three lacerations and a contusion in the area of her anus. There was a laceration on the medial side of the right labia minora and multiple small lacerations on other parts of the vaginal area. Melissa pointed out to the jury that it could be seen how "gaped open" one of the injuries was. Based on Melissa's education and training, she opined that the injuries were more consistent with sexual assault than consensual penetration.
During closing argument, trial defense counsel argued, inter alia, that C.C. was not helpless because she walked up the stairs to Rhodes's bedroom. She argued that Rhodes and C.C. had consensual sex. As stated above, the jury found Rhodes guilty of first-degree rape and first-degree sodomy. The jury recommended fifteen years on each count to run concurrently for a total of fifteen years' imprisonment. This appeal now follows.
On appeal, Rhodes argues that the trial court abused its discretion when it failed to instruct the jury on his defense of lack of knowledge that C.C. was physically helpless. The Commonwealth argues that the trial court properly refused to instruct the jury because the evidence did not support the instruction.
Kentucky Revised Statutes (KRS) 510.030 provides:
KRS 510.010(6) defines "physically helpless" to mean "that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act." As Rhodes candidly admits in his brief on pages 10-11, this definition "would include the situation where a person is in a deep sleep as a result of barbiturates, unconscious because of excessive alcohol consumption, or a total paralytic." Boone v. Commonwealth, 155 S.W.3d 727, 730-31 (Ky. App. 2005). The trial evidence supported the fact that C.C. was unconscious due to alcohol consumption and unable to consent to the anal and vaginal sex Rhodes perpetrated upon her.
Rhodes, on the other hand, in his voluntary statement to detectives, specifically told the jury that C.C. was coherent and awake the entire time he was in his apartment. Rhodes said that C.C. initiated the sexual contact, asked for a condom, changed sexual positions, and that she repeatedly said "f____k me" while the sexual acts were taking place. The Commonwealth argues that there was simply no evidence that Rhodes did not realize C.C. was unconscious, as his claim throughout his statement was that she
We agree with the Commonwealth that the evidence did not support the jury instruction that Rhodes was not aware that C.C. was unconscious. The trial court must instruct according to the evidence. Commonwealth v. Sanders, 685 S.W.2d 557, 559 (Ky. 1985). Rhodes does not cite to any evidence that he did not realize C.C. was unconscious, in fact all of his testimony was that C.C. was conscious the entire time. Because there was no evidence to sustain the requested instruction, the trial court did not abuse its discretion in refusing to so instruct the jury.
Rhodes urges this Court to find that under Johnson v. Commonwealth, 864 S.W.2d 266 (Ky. 1993), he was entitled to the requested instruction that he lacked knowledge that C.C. was physically helpless. Although the facts in Johnson involved sexual relations with an unconscious victim who had consumed too much alcohol, the similarities between it and the instant case stop there. In Johnson, the evidence revealed that the victim had sexual relations with a number of people at a party in a dark room. There was also evidence that the victim had consented to and actively participated in some of the sexual activity. There was evidence both that she was unconscious and that she was "putting on" with respect to her degree of drunkenness. The issue in Johnson was whether the defendant was entitled to a lesser included offense instruction. The Johnson Court found that given the evidence in the case, the jury might have reasonably doubted that the victim had been "physically helpless" in the sense of being unable to communicate and found Johnson guilty of the lesser rather than the greater offenses. The case in no way suggests that Rhodes was entitled to the instruction he requested.
Rhodes's arguments that C.C. was standing, walking, and talking on her own up to and including being in his bedroom does not give credence to Rhodes's claim now that he was unaware that C.C. was unconscious when he had sexual intercourse with her. In fact, Ellen testified that she left C.C. in Rhodes's bedroom only after C.C. fell asleep or passed out. In any event, Rhodes's own self-serving statement that C.C. was awake the entire time she was in his room and participated in the sexual acts cuts directly against his argument that he was entitled to an instruction that he did not realize C.C. was unconscious. The trial court did not abuse its discretion in refusing Rhodes's requested instruction.
Rhodes next argues that the trial court committed palpable error when it communicated ex parte to the jury after the guilt phase regarding how the case would proceed in the penalty phase. Rhodes requests that this Court review this for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
At the end of the guilt phase of Rhodes's trial, the jury returned guilty verdicts on both charges—first-degree rape and first-degree sodomy. After the jury was polled, the trial court addressed the jury:
Once the jury was sent back into the deliberation room, the trial court stated to the parties that the penalty phase would begin in forty minutes. The trial court next said, "Anything else at this time? Alright, I'm gonna go back and talk to the jury." This statement was followed by an admonition to individuals in the courtroom to be careful about contact with jurors and "watch out for these jurors to make sure that they don't get any information that they shouldn't have at this point."
After a forty-six minute recess, the jury was brought back into the courtroom to begin the penalty phase. Upon returning to the courtroom, the trial court received assurances from the jury that the admonition had been kept. There was no objection from defense counsel.
The Commonwealth argues that this Court should not review Rhodes's argument for palpable error because he had notice that the trial judge planned to speak with the jury and had at least three opportunities to object or ask for a hearing on the matter and failed to do so.
Palpable error will be found only where the movant shows "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Rhodes cites to Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), wherein the Supreme Court held:
Rhodes also cites to Bowling v. Commonwealth, 168 S.W.3d 2, 9-10 (Ky. 2004), where the Kentucky Supreme Court held that "a hearing is required `only when the alleged contact presents a likelihood of affecting the verdict,' and bias is not implied, but must be demonstrated by the moving party[.]" (Citing United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997).
Rhodes also acknowledges that "[e]xpected in the course of a jury trial are numerous opportunities for ex parte conversations between the trial judge and individual jurors." Welch v. Commonwealth, 235 S.W.3d 555, 558 (Ky. 2007) (internal citations omitted).
We find no palpable error in the instant case. Rhodes was notified that the judge planned to explain the sentencing phase to the jury and was also made aware, after the judge talked to the jury, of the substance of the communication. "[T]he mere occurrence of an ex parte communication between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985). The trial judge in this case was scrupulous about admonishing the jury regarding the fact that they were to have no outside influences during the penalty phase of the trial. It would make no sense for the trial judge to then violate his own admonition by privately presenting evidence to the jury. Rhodes has not shown that his presence was required to defend against the charges while the trial judge explained the operation of the penalty phase to the jurors. Accordingly, we find no palpable error.
Rhodes next argues that the trial court erred when it allowed the victim's father, rather than her, to testify at the penalty phase of the trial. Rhodes argues that this is a violation of KRS 532.055(2)(a)(7).
Prior to the jury being brought back for the penalty phase, defense counsel objected, under KRS 532.055(2)(a)(7), to the Commonwealth calling C.C.'s father to testify as the Commonwealth's sole victim impact witness. Defense counsel argued that KRS 532.055 defines "victim" under KRS 421.500—an individual suffering direct harm—and because C.C. was neither a minor, legally incapacitated or deceased, it was only appropriate for C.C. to give victim impact testimony.
In objection, the Commonwealth argued that KRS 532.044 does not mandate that the victim testify, but rather the testimony is about how the crime affected the victim, noting that in child sex trials it was the preference of the Commonwealth and the child's family for a parent or grandparent to testify as to the effect that the crime had on the child, even though the child was available. Defense counsel then elaborated on the meaning of the word "victim" as established by the statute.
In overruling Rhodes's objection, the trial court stated that its interpretation was that KRS 532.055(2)(a)(7) does not by its very terms confine testimony to that of a victim as defined, but that it simply states such evidence may be offered by the Commonwealth relevant to sentencing. The Court ruled that the statute simply defines who the victim is and gives reference to who the Commonwealth can present evidence relative to, but it does not limit the giving of evidence to the actual victim.
Rhodes does not complain that C.C.'s father's testimony was extreme, emotional, or outrageous. He simply claims that the testimony should have been provided by C.C., rather than her father. In McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012), the Kentucky Supreme Court found error where a friend of the victim had presented victim impact evidence. The Court, however, ruled that the error had not resulted in manifest injustice so as to require reversal for new sentencing proceedings under the palpable error standard contained in RCr 10.26. The court found that it was highly unlikely that the penalty phase testimony had dissuaded the jury from imposing a lesser sentence.
We agree with the Court in McGuire that this does not amount to palpable error. In light of the overwhelming evidence of Rhodes's guilt, and in light of the fact that the Commonwealth was entitled to present the testimony, any technical error resulting from C.C.'s father testifying instead of C.C. was harmless. The trial court did not abuse its discretion in allowing the testimony, and its decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.3d 941, 945 (Ky. 1999).
Discerning no reversible error, we affirm the judgment of conviction and sentence entered by the Jefferson Circuit Court on July 2, 2013.
ALL CONCUR.
