Murphy v. Commonwealth

509 S.W.3d 34

Rex Allen MURPHY, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2015–SC–000487–MR

Supreme Court of Kentucky.

FEBRUARY 16, 2017

COUNSEL FOR APPELLANT: John Gerhart Landon, Assistant Public Advocate, Department of Public Advocacy

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Jeffrey Ray Prather, Assistant Attorney General, Office of the Attorney General

OPINION OF THE COURT BY JUSTICE HUGHES

Appellant, Rex Allen Murphy, appeals as a matter of right from a judgment of the Pulaski Circuit Court sentencing him to thirty years' imprisonment for first-degree sodomy, first-degree sexual abuse, and use of a minor in a sexual performance. Murphy raises seven issues on appeal: 1) the trial court erred by failing to direct a verdict of acquittal for first-degree sodomy and first-degree sexual abuse; 2) the trial court violated double jeopardy when it failed to differentiate between first-degree sodomy and first-degree sexual abuse in the jury instructions; 3) the trial court erred by failing to include an instruction for the lesser included offense of sexual misconduct; 4) the trial court erred by permitting the Commonwealth to ask lay witnesses for legal conclusions; 5) the Commonwealth's statements during closing argument constituted palpable error; 6) the trial court erred by excluding mitigation evidence; and 7) cumulative error supports reversal. For the following reasons, we affirm Murphy's conviction for use of a minor in a sexual performance, reverse his convictions for first-degree sodomy and first-degree sexual abuse, and remand this case to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, when Paul was fifteen-years-old, Murphy, who was almost thirty-years old, became a member of the church Paul attended.¹ In April 2014, Murphy began to teach the church's Sunday school class. There were only seventeen members of the congregation and the Sunday school class only had two to three pupils, including Paul and his brother. These classes, which initially focused on bible study and discussion, over time became focused on personal and sexual topics.

During the course of Paul and Murphy's discussions, Murphy claimed to have "dark magic powers" and that he had the ability to erase a person's mind. Murphy also asserted that he was able to see a person's sins and sexuality by touching their hands. Murphy convinced Paul that his sin was bisexuality and offered to help Paul fight this "sin" by tempting him sexually, so that he would become stronger and not give into his urges.

Several weeks into teaching Paul's Sunday school class, Murphy asked Paul to help him with work on his residence. With Paul's parents' approval, Murphy would pick up Paul and drive him to Murphy's residence, where the two would work together every other week. While driving to the residence, the pair would not only discuss Paul's day, but also sexual topics. On more than one occasion, Murphy would bring up a sexual topic as a "test" and then during the resulting discussion check to see whether Murphy had an erection. Other examples of Murphy's conduct during their time in the truck included: 1) touching Paul's genitals over his clothing; 2) discussing oral sex with Paul; and 3) requesting to see Paul's genitals.

One evening after a cross-country race, in which Paul participated, Paul and Murphy were alone in Murphy's truck. After Murphy discussed homosexuality and sexual temptation, he played a pornographic video on his phone and watched it with Paul. Afterwards, Murphy had Paul expose his penis so that Murphy could sexually stimulate him. Later in the evening, Paul and Murphy exited the vehicle and entered the woods, where Murphy asked Paul to anally sodomize him. Despite Paul's efforts, he was unable to complete the sexual act. Subsequently, Paul informed Murphy that he did not want to engage in sodomy, which made Murphy upset. After this incident, Paul stopped going to Murphy's residence.

In September 2014, Murphy contacted Paul to inform him that he had completed the work on the residence and wanted to celebrate. Paul agreed to let Murphy pick him up, due to his belief that Murphy's wife would be home during his visit. Unbeknownst to Paul, Murphy's wife was at church, and consequently he would be alone with Murphy. Once at the residence, Murphy began to discuss sexual topics with Paul. Afterwards, he asked Paul to masturbate in front of him and provided him with lubricant to do so. Paul agreed and Murphy watched him perform the sex act. Subsequently, Murphy and Paul went into the bedroom where Paul removed his clothes. Murphy then began to kiss Paul's torso and groin area and put his mouth and hands on Paul's penis. When Murphy's wife returned home, Paul and Murphy discontinued the sexual acts. Before driving Paul home that evening, Murphy threatened to kill him if he were to reveal what had happened.²

In October 2014, Paul admitted to a co-worker at the hospital where he volunteered that Murphy had inappropriately touched him and threatened him with witchcraft. The co-worker reported the abuse to the police who began an investigation. As part of that investigation, Eubank Police Chief Colin Hatfield and social service worker Brittany Penick spoke with Murphy at his residence. Murphy told Chief Hatfield and Penick that he had been cursed with witchcraft, and that the Lord revealed things to him when he touched a person's hand. Murphy went on to say that the Lord had informed him that Paul was dealing with homosexuality. Additionally, Murphy admitted to touching and engaging in sexual acts with Paul. Murphy's admission was only partially recorded, as the tape recorder that Chief Hatfield and Penick used stopped working during the recording.

Murphy was indicted by the Pulaski County grand jury in November 2014, for first-degree sodomy, first-degree sexual abuse, and use of a minor in a sexual performance. In Murphy's February 2015 trial, the Commonwealth called three witnesses: Paul, Chief Hatfield, and Penick. In his testimony, Paul explained that he went along with Murphy's sexual requests because of his fear of Murphy's black magic powers. Specifically, Paul was worried that Murphy would use those powers to erase his mind. Additionally, Paul testified that Murphy had previously threatened him with the use of black magic.

Murphy declined to testify or call any witnesses in the guilt phase of his trial. His defense was that the sexual acts with Paul were legal and consensual, as Paul was sixteen years old when the sexual offenses alleged at trial occurred. Additionally, Murphy claimed that the Commonwealth provided insufficient evidence to establish forcible compulsion and that his providing lubricant to Paul did not constitute inducement so as to convict him of use of a minor in a sexual performance.

Murphy was convicted of all charges and the jury recommended fifteen years' imprisonment for first-degree sodomy, five years' imprisonment for first-degree sexual abuse, and ten years' imprisonment for use of a minor in a sexual performance. The jury recommended that those sentences be served consecutively for a total sentence of thirty years' imprisonment. After denying Murphy's motion for a new trial and for a judgment of acquittal, the trial court sentenced Murphy in conformance with the jury's recommendation. Murphy brings this appeal as a matter of right.

ANALYSIS

I. The Trial Court Erred by Failing to Direct a Verdict of Acquittal for First–Degree Sodomy and First–Degree Sexual Abuse .

Murphy argues that the Commonwealth failed to produce sufficient evidence of the element of "forcible compulsion" to convict him of first-degree sodomy and first-degree sexual abuse.³ As such, he contends that the trial court committed reversible error in denying his motion for directed verdict.

At the close of the Commonwealth's case, Murphy made a motion for a directed verdict on both the first-degree sodomy and first-degree sexual abuse charges. Murphy first argued that there was insufficient evidence presented to prove the forcible compulsion element of first-degree sodomy. In denying Murphy's motion, the trial court found that Murphy had engaged in a pattern of behavior that groomed Paul to be receptive of further sexual advances by using Paul's fear of Murphy's alleged black magic powers. Additionally, the trial court concluded that Murphy's behavior rose to the level of an implicit threat of force. Subsequently, Murphy made a motion for directed verdict for first-degree sexual abuse, arguing that that this offense was part of the same continuous act as first-degree sodomy. The trial court also denied this motion. After declining to present any proof, Murphy made a renewed motion for a directed verdict which was also denied.

On appeal, Murphy alleges that the trial court erred by denying his motion for directed verdict for first-degree sodomy and first-degree sexual abuse due to insufficient evidence of forcible compulsion. While Murphy's directed verdict argument for first-degree sodomy was properly preserved for appellate review, his directed verdict argument for first-degree sexual abuse is unpreserved.

Kentucky Rule of Civil Procedure (CR) 50.01 states, in pertinent part "[a] motion for a directed verdict shall state the specific grounds therefor." CR 50.01 has previously been applied to criminal cases and "its requirement of ‘specific grounds' must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal." Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005). The failure to identify a particular ground in a motion for directed verdict forecloses appellate review of the trial court's denial of the motion except to the extent that palpable error is shown. McCleery v. Commonwealth, 410 S.W.3d 597, 601–602 (Ky. 2013) (citing Pate v. Commonwealth, 134 S.W.3d 593, 597–98 (Ky. 2004) ) Kentucky Rule of Criminal Procedure (RCr) 10.26.⁴

As Murphy failed to raise his...