Opinion
NO. 2014-CA-001138-MR
04-15-2016
ROBERT HENRY MILES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 14-CR-00422 OPINION
AFFIRMING BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Robert Henry Miles brings this appeal from a July 2, 2014, Final Judgment and Sentence of Imprisonment of the Fayette Circuit Court upon a jury verdict finding him guilty of incest, two counts of first-degree attempted sodomy, and two counts of first-degree sexual abuse and sentencing him to a total of seventeen-years' imprisonment. We affirm.
On April 16, 2016, the Fayette County Grand Jury indicted Miles upon incest, two counts of first-degree attempted sodomy, and four counts of first-degree sexual abuse. These charges stemmed from alleged sexual activities with his biological daughter, A.C., who was a minor. A.C. resided with Miles in Michigan until late August or early September 2012 when they moved to Kentucky. On October 19, 2012, A.C. informed her guidance counselor at middle school that her father, Miles, had been sexually abusing her for some time. Thereafter, A.C. underwent a medical examination, and it was discovered that A.C. was pregnant. A.C. then had an abortion, and a DNA test of the fetal tissue revealed that Miles was the biological father.
DNA stands for deoxyribonucleic acid. --------
A jury trial ensued. The circuit court rendered a directed verdict upon two of the four counts of first-degree sexual abuse. Ultimately, the jury found Miles guilty upon the remaining counts in the indictment - incest, two counts of sodomy and two counts of first-degree sexual abuse. By final judgment and sentence of imprisonment entered July 2, 2014, the circuit court sentenced Miles to a total of seventeen-years' imprisonment. This appeal follows.
Miles contends that the circuit court committed reversible error by admitting into evidence the DNA test that confirmed he was the biological father of A.C.'s fetus. Miles believes the pregnancy, abortion, and DNA test results should have been excluded from evidence at trial. Miles states that A.C.'s medical examination occurred on October 23, 2012, and the termination of her pregnancy took place on November 16, 2012. Miles maintains the evidence indicated that the only sexual intercourse occurring in Kentucky purportedly took place shortly before October 19, 2012. Miles points out that Pam Hanshew, investigator for the Cabinet for Health and Family Services, testified that A.C. wept when she listened to the fetal heartbeat on an ultrasound prior to the abortion. Miles asserts that no evidence was presented concerning how long it takes a fetus to develop a heartbeat and:
Certainly it would have been impossible, without medical testimony, for the jury to reach the conclusion that the one incidence of intercourse that occurred in Kentucky one week before pregnancy was discovered, and within one month of the abortion, had resulted in the fetus having already developed a heart and an independent circulatory system. Yet that would be the implication from the testimony of Hanshew. That testimony certainly required the pregnancy to have occurred prior to coming to Kentucky.Miles Brief at 17-18. Miles concedes that this contention of error was not preserved for appellate review but seeks review under the palpable error standard.
. . . .
Since the only episode of incest that occurred in Kentucky was too late to have been the cause of the pregnancy, there was no basis for the evidence of pregnancy, abortion, and DNA. . . .
The palpable error standard is set forth in Kentucky Rules of Criminal Procedure (RCr) 10.26:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.To constitute reversible error under RCr 10.26, a palpable error must affect the substantial right of a party and result in manifest injustice. Manifest injustice occurs when there is a probability that the jury verdict would have been different or the error is "so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Com., 207 S.W.3d 1, 3 (Ky. 2006). Our review proceeds accordingly.
In the case sub judice, there was no expert testimony as to the gestational age of A.C.'s fetus at the time of the ultrasound or as to what gestational age a fetal heartbeat could be acquired by ultrasound. A.C. did testify that Miles forced her to engage in sexual intercourse, sodomy, and other sexual activities while in Kentucky. Considering the offenses charged in the indictment, we think evidence of A.C.'s pregnancy, abortion, and DNA test was relevant to the indicted offenses and was admissible. Ky. R. Evid. (KRE) 402. As set forth in Turner v. Commonwealth, 914 S.W.2d 343, 346 (Ky. 1996):
An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not. . . . It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence.Id. (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.05, at 53 (3d ed. 1993)).
Therefore, the circuit court did not abuse its discretion by admitting evidence of A.C.'s pregnancy, abortion, and the DNA test identifying Miles as the biological father of A.C.'s fetus. See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000). As such, no prejudicial error occurred. See Martin, 207 S.W.3d 1.
Miles next argues that he was denied a fair trial due to prosecutorial misconduct. Miles alleges that the Commonwealth improperly "bolster[ed] the credibility of A.C. in its closing argument." Miles Brief at 10. In particular, Miles cites to the following three statements by the Commonwealth during closing argument: (1) "there had been no proof that A.C.'s story had ever changed," (2) "[i]f A.C.'s story had ever changed . . . those statements would have been played," and (3) "if her story had ever changed the tapes would have been played to show that her story had changed." Miles Brief at 11. Miles contemporaneously objected to the above three statements made during closing argument by the Commonwealth, and the circuit court overruled same.
Miles believes that the above three statements by the Commonwealth were untrue as A.C. had given different accounts of how many times she had been "raped" or had sexual relations with him. Miles Brief at 12. In support thereof, Miles cites to remarks made by the Commonwealth during bench conferences. According to Miles, the Commonwealth inconsistently stated that Miles had raped A.C. a total of twenty times and then stated that Miles has raped A.C. fifty times. Miles also points to the Commonwealth's remarks that A.C. was raped five or six times in Kentucky and ten to twenty times in Michigan.
Our Supreme Court has recognized that prosecutorial misconduct is generally "[a] prosecutor's improper or illegal act . . . involving an attempt to . . . persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Noakes v. Com., 354 S.W.3d 116, 121 (Ky. 2011) (quoting Black's Law Dictionary (9th ed. 2009)). And, "[p]rosecutorial misconduct may result from a variety of acts, including . . . improper closing argument." Id. at 121. During closing argument, trial counsel is given wide latitude, and it is entirely proper for the Commonwealth to comment on the evidence presented during trial. Noakes, 354 S.W.3d 116.
In this case, we do not believe the Commonwealth committed misconduct during closing argument. First, A.C. properly testified to only the offenses charged in the indictment, and her testimony at trial was consistent. Based on the record, Miles may have committed sexual acts with A.C. that were not charged in the indictment and that the Commonwealth referenced such acts during bench conferences. Second, the arguments of counsel at bench conferences are not evidence and were certainly not part of the closing argument heard by the jury. Third, based upon the evidence introduced at trial, there is simply no evidentiary support for Miles' claim that the Commonwealth intentionally misrepresented the evidence or improperly bolstered A.C.'s credibility during closing argument. Upon the whole, we are unable to conclude that prosecutorial misconduct occurred during closing argument. See Noakes, 354 S.W.3d 116.
Miles lastly asserts that the circuit court committed reversible error by admitting into evidence videotaped recordings of the police interrogation of Miles. Miles maintains that the taped interrogation was irrelevant and highly prejudicial. Miles points out that officers accused Miles of lying, of being a monster, of being horrible and of having an illness. Miles claims that the officers bolstered A.C.'s testimony by stating that the DNA test results proved that Miles was the father of A.C.'s fetus and that A.C.'s statements to police were true. Miles admits that he failed to preserve this error for review and request review under the palpable error rule of RCr 10.26. We have previously set forth the standard of review under RCr 10.26, so our review shall proceed accordingly.
In this case, we do not believe that admission of the taped interrogation resulted in a manifest injustice necessitating reversal pursuant to RCr 10.26. Although the tape interrogation contained statements adverse to Miles and supportive of A.C., it is not probable that the result of the trial would have been different absent the admission of same. See Martin, 207 S.W.3d 1. The Commonwealth introduced overwhelming evidence of Miles' guilt of the indicted offenses during the trial. Moreover, any possible error in admitting the taped interrogation was not so fundamental as to deny Miles due process of law. See id. Consequently, we hold that admission of the taped interrogation did not result in manifest injustice under RCr 10.26. See id.
For the foregoing reasons, the Final Judgment and Sentence of Imprisonment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky