Bowles v. Commonwealth

• Decision Date: 07 May 2021
• Docket Number: NO. 2019-CA-1803-MR,2019-CA-1803-MR
• Parties: JASON BOWLES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

JASON BOWLES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2019-CA-1803-MR

Commonwealth of Kentucky Court of Appeals

MAY 7, 2021

NOT TO BE PUBLISHED

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE STEVE ALAN WILSON, JUDGE

ACTION NO. 18-CR-00363

OPINION

AFFIRMING

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BEFORE: GOODWINE, JONES AND KRAMER, JUDGES.

KRAMER, JUDGE:

On March 28, 2018, Jason Bowles was indicted in Warren Circuit Court on two charges of first-degree rape¹ and one charge of first-degree sexual abuse by forcible compulsion² against his second-cousin, A.C., a minor.

Following a jury trial, Jason was ultimately convicted of one charge of rape, as well as the charge of sexual abuse, and he was consequently sentenced to eleven years' imprisonment pursuant to a final judgment of November 12, 2019. Jason now appeals, asserting he was entitled to a directed verdict due to insufficient evidence; a mistrial due to what he believes was the impermissible admission of prior bad acts evidence against him; or that he is entitled to a new trial due to various other evidentiary errors discussed below. Upon review, we affirm.

This matter involves a roughly two-month period between the end of December 2015 and the beginning of February 2016 when Jason, his wife Holly, and his two young daughters moved from Alabama to temporarily reside with the family of Jason's cousin, R.G. R.G. lived in a four-bedroom house with her husband, Chris; her then-thirteen-year-old daughter and the victim herein, A.C.; her daughter, N.G., who was eleven years old at the time; and her son, J.G., who was then about five years old. While they were there, Jason and his family slept in A.C.'s bedroom, and A.C. slept on the couch in the family room. On or about January 20, 2016, however, Holly left R.G.'s house with Jason's two daughters and went to live at her mother's house; Jason slept on the couch; and A.C. returned to sleeping in her own bedroom. In early February of that year, Jason then left R.G.'s house to resume living with his wife and daughters, and they left Kentucky.

The charges in this matter stemmed from A.C.'s allegations that Jason began raping and sexually assaulting her shortly after Jason's daughters and Holly left the home on January 20, 2016. According to A.C., the first rape - and the focus of Count I of the indictment - occurred in her bedroom in the early morning hours on a date between January 20 and January 25. To summarize her recollection of the event, her room was dimly illuminated only by her television set, which she kept on at night to help her sleep. She awoke when Jason came into her room, walked over to her bed, and unbuckled his pants. He pulled the covers off her, pulled her pants down, scooted her to the edge of the bed, and put what she believed was his penis inside of her. When Jason started to take his pants down, A.C. said, "no, stop." Jason put his hand over her mouth, told her it was "okay," and held his hand there the entire time. A.C. recalled being scared and that it "hurt really bad." She alleged she told no one about the incident, at least not immediately after it occurred, because Jason threatened to hurt her if she did.

The sexual abuse - and the focus of Count II of the indictment - allegedly occurred late on January 26, 2016. On that date, R.G. had gone to the emergency room and was spending the night at the hospital after experiencing chest pains at work. Around midnight, she telephoned A.C., asking A.C. to bring her a blanket and some clothes and to have Jason give her a ride there. After they brought her things, along with food from Waffle House, R.G. asked A.C. to staywith her overnight. However, Jason offered to bring A.C. back to the hospital the following morning, and he and A.C. left. According to A.C., and as discussed in more depth below, Jason then sexually abused her in his truck on the drive home.

The second rape - and the focus of Count III - allegedly occurred on January 27, 2016, when Jason and A.C. returned from the hospital around 3:00 or 4:00 a.m. This incident is likewise discussed in more depth below.

In April 2017, A.C. informed R.G. of these three incidents. R.G. contacted the authorities. Following an investigation, Jason was indicted as set forth above. He was eventually arrested on June 27, 2018. And, following a jury trial from September 11, 2019 through September 13, 2019, the jury acquitted Jason of Count I, but convicted him of Counts II and III. This appeal followed.

I. DIRECTED VERDICT

We begin with Jason's assertion that he was entitled to a directed verdict on Counts II and III due to insufficient evidence. In Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the Kentucky Supreme Court delineated the standard for handling a criminal defendant's motion for a directed verdict as follows:

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 onthe 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.

Id. at 187 (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). See also Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002). The standard for appellate review of a denial of a motion for a directed verdict alleging insufficient evidence dictates that if under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. Benham, 816 S.W.2d at 187; Holbrooks v. Commonwealth, 85 S.W.3d 563, 569 (Ky. 2002).

In this vein, Jason notes that Counts II and III each required the jury, as instructed, to find that he raped or sexually abused A.C. through "forcible compulsion." His argument is that no such evidence was adduced. In his brief, he describes the extent of the evidence relevant to those claims, which he deems inadequate in this regard, as follows:

AC testified about two incidents that happened in the early morning hours on January 27, 2016. The first which was the basis of the sex abuse conviction allegedly happened in [Jason's] truck on the way back from the hospital after bringing AC's mother food, clothing and a blanket. AC testified he started tugging at her pants. AC said she told [Jason] to leave her pants alone. He told her to lay down and she said no but he said it more aggressively and "I was scared of him; so I lay down with my head in his lap and my feet toward the passenger door. He pulled my pants down and started to put hisfingers inside me." She said she was not going to do anything so he just kept putting his finger inside her. She did not try to get away because she knew that he was bigger than her and could make her do whatever. She realized at some point they were in back roads and she got mad and told him to take her home.

When they got home, AC testified she yelled at him outside and hit him, and he was getting upset saying "stop", "let's go inside", "the neighbors were going to hear." AC got really angry, slammed the door and stomped to her room. [Jason] pulled her out of her bed and kind of dragged her to the couch and said she was sleeping there because he was really tired. She did not feel like fighting any more. She woke up on the couch to find her pants were down and [Jason] was getting on the couch with her. He was laying on the opposite way with his legs towards her, and he "scooted down" and put his penis inside her. AC explained she did not remember a whole lot from that time probably because she had just woken up and was still kind of asleep. She did not remember how long it lasted. She did not say anything to him when he was doing this on the couch because at that point she did not feel like fighting with him or anything.

(Internal record citations omitted.)

However, Jason's recitation of the evidence omits salient details and warrants further elaboration. We begin by noting that his discussion of the evidence is limited to "the early morning hours on January 27, 2016." His assumption appears to be that because the jury found him "not guilty" of Count I - which asked the jury to determine whether he had committed first-degree or second-degree rape against A.C. on one occasion between January 20, 2016, and January 25, 2016 - the jury was therefore estopped from considering any evidencefrom January 20, 2016 through January 25, 2016 in conjunction with Counts II and III.

However, there is no such rule of estoppel. To the contrary, "[c]redibility and weight of the evidence are matters within the exclusive province of the jury." Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999) (citations omitted). And, jurors are free to believe parts and disbelieve other parts of the evidence including the testimony of each witness. Id. In other words, it is true that within the meaning of the instructions provided, the jury found reasonable doubt regarding A.C.'s claim that Jason raped her on an occasion between January 20, 2016, and January 25, 2016. But, nothing precluded the jury from inferring from the evidence that inappropriate sexual conduct apart from what had been charged had indeed occurred in that timeframe; and, likewise, nothing precluded the jury from lending credence to A.C.'s testimony regarding what happened after it occurred, and prior to January 27, 2016:

COMMONWEALTH: After the night that he came in your room, what happened the next day, if you remember?

A.C.: I tried to kind of stay away from him.

COMMONWEALTH: Did he say anything to you about this after that night?

A.C.: He told me that if I told anyone that he would hurt me and that, um, I knew that if I told anyone, that he would go to jail and that he didn't want that.

COMMONWEALTH: And did you believe him, that he

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