Arnold v. Commonwealth

1

LANNY R. ARNOLD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-CA-1489-MR

Court of Appeals of Kentucky

March 1, 2024

NOT TO BE PUBLISHED

Appeal from Jefferson Circuit Court Honorable Eric Joseph Haner Judge Action No. 20-CR-000087

Brief for Appellant: Joshua M. Reho Louisville, Kentucky

Brief for Appellee: Daniel J. Cameron Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort Kentucky

Before: Thompson, Chief Judge; Acree and McNeill, Judges.

OPINION

ACREE JUDGE

A jury convicted Appellant, Lanny Arnold, of first-degree rape, first-degree sodomy, two counts of incest, two counts of first-degree sexual abuse, and intimidating a participant in the legal process. Appellant argues the circuit court erred by (1) denying his motion for a directed verdict as to the first-degree rape, first-degree sodomy, and first-degree sexual abuses charges, asserting no reasonable juror could conclude he engaged in these crimes by forcible compulsion; and (2) by permitting the jury to have a copy of Appellant's recorded statement to the police during deliberations. We affirm.

BACKGROUND

Appellant married J.A. in 2008. J.A.'s daughter, H.G., was seven years old at the time of the marriage. Throughout their marriage, Appellant physically abused J.A., believing J.A. was unfaithful to him. H.G. could hear Appellant abusing her mother at night through the walls of their home, and on two occasions J.A. had to go to the hospital with broken ribs. According to H.G., Appellant hurt J.A. "all the time."

One day when H.G. was fourteen years old, H.G. stayed home from school. Appellant entered H.G.'s bedroom and lay down beside her. H.G. did nothing and Appellant eventually left. Appellant did not touch H.G. during this encounter. H.G. called a relative to pick her up because she was not comfortable being alone with Appellant.

Approximately five months later, Appellant came into H.G.'s bedroom in the middle of the night. H.G. was then fifteen years old, and the family had moved in with H.G.'s grandmother. Appellant rubbed H.G.'s bare thigh and told H.G. about J.A.'s suspected infidelity. H.G. told Appellant she felt uncomfortable and, when H.G.'s grandmother shifted in her bed, Appellant got up and left. H.G. did not immediately tell anyone about this incident; she feared Appellant because she was too aware he physically abused her mother.

Two or three weeks later, Appellant picked up H.G. from a friend's house and drove her to an alley instead of taking her straight home. Appellant said to the fifteen-year-old, "You're going to give me some of that pussy."^[1] He parked his SUV and instructed H.G. to take off her clothes. H.G. initially begged Appellant not to do anything to her, and she eventually removed some of her clothes once Appellant told her that he would stop abusing J.A. if she did as he demanded. H.G. removed some of her clothing and Appellant pushed her into the back of the SUV. Appellant performed oral sex on H.G. and inserted his fingers into her vagina. H.G. also believed Appellant rubbed his penis against her vagina, but she was not sure if he inserted it. She cried and pleaded with Appellant to stop. The encounter lasted ten to fifteen minutes. Appellant drove H.G. home and told her that if she told anybody about what happened he would hurt her mom and anyone she cared about. Because she did not want Appellant to continue to hurt her mom, H.G. did not tell anyone about this encounter.

Another two weeks later, Appellant picked up H.G. from a friend's house. When H.G. began vomiting in Appellant's vehicle, he asked her why she was sick. H.G. told him she was scared and because she knew what was about to happen. Heedless to H.G.'s fear, Appellant drove her to a secluded gravel road in Indiana and parked his SUV. Using a variant of the vulgar demand quoted above, Appellant confirmed H.G.'s fears. Though H.G. said she would not have sex with Appellant and asked him to drive her home, Appellant again made H.G. get into the back of the SUV. He removed her jeans and her hoodie. She again asked him to stop and to take her home. Appellant ignored her and, again, inserted his fingers into H.G.'s vagina, then rubbed his penis against her vagina. Appellant had the brutish temerity to then ask H.G. "why [she] didn't like it[.]"

After he stopped, Appellant told H.G. that if she told the police and he went to jail, he would "do what he said he would do" - hurt J.A. and others H.G. cared about - once he was released. Again, H.G. did not tell anybody about the encounter because she knew Appellant was capable of violence.

Approximately two weeks later, Appellant and H.G. were at home. Appellant instructed H.G. to lie down on his bed. Appellant lay down behind her and inserted his penis into her vagina. Again, H.G. did not tell anyone because she was afraid Appellant would hurt people she cared about.

H.G. eventually told J.A. what Appellant had done. When J.A. confronted him, Appellant grabbed J.A. and punched her in the head. The police arrived in time to witness the assault and took him into custody. Appellant admitted to the police he abused J.A. and acknowledged he had done so in front of H.G. and her younger brother. However, Appellant insisted he never struck the children. He believed the children were scared because they observed Appellant and J.A. "fight so much[.]"

Upon a superseding indictment with H.G. the victim, Appellant was charged with one count of first-degree rape, two counts of first-degree sodomy, three counts of incest, one count of third-degree rape, two counts of third-degree sodomy, one count of intimidating a participant in the legal process, and four counts of first-degree sexual abuse.

At trial, the court granted Appellant's motion for directed verdict on one of the sodomy charges but denied his motions for directed verdict as to all other charges. Following closing arguments, the circuit judge told the jury they would have the trial exhibits with them during deliberations. Among these exhibits was a CD containing a recording of Appellant's statement to the police in which he told police about his domestic violence against J.A. throughout their marriage and engaging in domestic violence in front of the children.

The jury convicted Appellant of first-degree rape, first-degree sodomy, two counts of incest, two counts of first-degree sexual abuse, and intimidating a participant in the legal process. Following the jury's recommendation, the trial court sentenced Appellant to a total of fifteen years' incarceration. He now appeals.

ANALYSIS

Appellant presents two arguments to contest his conviction. First, he argues the circuit court erred by not granting his motion for a directed verdict on the first-degree rape charge, the first-degree sodomy charge, and both charges of first-degree sexual abuse; forcible compulsion is an element of each of these crimes, and Appellant argues there was insufficient evidence at trial to demonstrate he ever engaged in any sexual intercourse or contact with H.G. by forcible compulsion. Second, Appellant argues that, because juries are not permitted to review testimonial witness statements in the deliberation room, the circuit court erred by permitting the jury to have a copy of Appellant's recorded police interview with them during deliberations.

Appellant concedes neither of these specific issues was preserved for appellate review. Accordingly, both issues will be reviewed for palpable error. As the Kentucky Rules of Criminal Procedure provide:

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.

RCr^[2] 10.26. Indeed, an unpreserved error "is reversible only if a manifest injustice has resulted from the error." Graves v. Commonwealth, 17 S.W.3d 858 864 (Ky. 2000) (emphasis supplied). "[I]f, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial" and thus manifest injustice will not be found. Id. (citing Jackson v. Commonwealth, 717 S.W.2d 511 (Ky. App. 1986)). The alleged error must also be palpable, which means the errors "must be easily perceptible, plain, obvious and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation marks and citation omitted).

Forcible Compulsion.

First, we detect neither palpable error nor manifest injustice in the circuit court's denial of Appellant's motion for directed verdict as to his first- degree rape, first-degree sodomy, and first-degree sexual abuse charges.

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Gill v. Commonwealth, 465 S.W.3d 35, 37 (Ky. App. 2015) (quoting Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Upon appellate review, a defendant is only entitled to a directed verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Id. (quoting Benham, 816 S.W.2d at 187).

Appellant has only one basis for his challenge: he...