Capshaw v. Com.

• Citation: 253 S.W.3d 557
• Decision Date: 05 October 2007
• Docket Number: No. 2006-CA-001918-MR.,2006-CA-001918-MR.
• Parties: Kenneth CAPSHAW, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Court of Appeals of Kentucky

253 S.W.3d 557

Kenneth CAPSHAW, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-CA-001918-MR.

Court of Appeals of Kentucky.

October 5, 2007.

Discretionary Review Denied by Supreme Court June 11, 2008.

Kristi R. Carver, David L. Williams, Kristi Castillo, Burkesville, KY, for appellant.

Ken W. Riggs, Frankfort, KY, for appellee.

Before HOWARD and MOORE, Judges; GUIDUGLI,¹ Senior Judge.

OPINION

MOORE, Judge.

Kenneth Capshaw appeals the Monroe Circuit Court's judgment convicting him of five counts of second degree rape and five counts of second degree sodomy. Following a jury trial, Capshaw was sentenced to serve a total of fifteen years of imprisonment. After a careful review of the record, we affirm the Monroe Circuit Court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to T.T., the victim, she was twelve years old when she and Capshaw, who was thirty-eight years old, began a sexual relationship. T.T. testified at trial that, on five separate occasions, she went to Capshaw's house, performed oral sex on Capshaw, and they then engaged in vaginal intercourse before she returned home.

After T.T. returned home from their fifth sexual encounter, she removed her panties, which had "blood stains[²] and stuff on them," and placed the panties in her dresser drawer. She did so because she did not want her mother to see them, and T.T. planned to wash them later.

Two days later, T.T. went to Capshaw's house, but he did not answer the door. She asked a couple of neighbors if they knew whether Capshaw was home, but neither of them knew for certain. T.T. looked in one of Capshaw's windows to try to determine whether he was home. A police officer saw T.T. in the neighborhood and told her that she needed to go home because he had received complaints from neighbors. She went home and later, a police officer came to her house, awoke her mother, and told her that T.T. had been at Capshaw's house earlier. The police officer asked T.T. why she had been at Capshaw's house looking in the windows, and he told her that she needed to tell him the truth. T.T. informed him of her sexual relationship with Capshaw, and the officer told her that he would have to report it. He then left to speak with Capshaw.

T.T.'s mother took her to the hospital, but because two days had passed and T.T. had showered since her last sexual encounter with Capshaw, the hospital could not perform a sexual abuse examination on her.

T.T.'s mother subsequently asked her if she had any clothes from any of her sexual encounters with Capshaw, and T.T. told her that she had a pair of panties. T.T. gave her mother the panties from her last sexual encounter with Capshaw, and T.T.'s mother called the Kentucky State Police Post. She spoke with Detective Russell Decker about T.T.'s allegations against Capshaw. T.T.'s mother turned over the panties to him.

The state police determined that the panties contained blood and semen, and a DNA analysis was performed. The odds of the semen in the panties not belonging to Capshaw were one in four hundred fifty-five trillion (455,000,000,000,000). Additionally, DNA from T.T. was found on the panties, as would be expected.

During trial, Capshaw was asked how his semen got on T.T.'s panties. Specifically, the Commonwealth asked Capshaw if it was Capshaw's "position ... that any DNA that was on, any semen of [Capshaw's] that was on that pair of panties, had to have been stolen from [Capshaw's] house?" Capshaw responded "if it's on there, yes." Capshaw contended that his semen got on T.T.'s panties because someone stole a used condom from his house and put the semen on her panties.

Detective Decker testified that he had asked Capshaw at one time during the investigation to remove Capshaw's clothes so that Detective Decker could determine whether Capshaw had any identifying marks on his body, and the detective saw a brown mole on Capshaw's body in his pubic hair area. The detective later asked T.T. if Capshaw had any identifying marks and, according to the detective, T.T. told him that Capshaw had a mole in his pubic area. At trial, however, T.T. testified that she had seen a mole in Capshaw's "pelvic" area on the right side.

During trial, Detective Decker testified that when he asked Capshaw how T.T. would have known that he had the mole in his pubic area, Capshaw stated that T.T. must have looked in his window. Capshaw also speculated that T.T. could have seen the mole while he was mowing his lawn without wearing a shirt. During trial, Capshaw was asked to show the jury his mole, which he did. Upon review of the trial tape, it appears that the mole was located on Capshaw's lower abdomen, near his belt line, rather than in his pubic region. Thus, contrary to the Commonwealth's and the Detective's assertions, the mole was in Capshaw's lower abdominal, or pelvic region, as T.T. testified at trial, rather than his pubic region. Other relevant facts will be discussed as necessary, infra.

Capshaw moved for a directed verdict at the close of the Commonwealth's case and at the close of Capshaw's argument. The circuit court denied both motions.

The jury convicted Capshaw on all ten counts. He was sentenced to serve ten years on each of the five second degree rape convictions, as well as five years on each of the five second degree sodomy convictions. However, his sentence for one of his rape convictions was ordered to be served consecutively to his sentence for one of his sodomy convictions, with all other counts to be served concurrently, for a total of fifteen years of imprisonment.

Capshaw moved for a new trial or, alternatively, for a judgment notwithstanding the verdict based on his conviction on all ten counts. He argued that the circuit court erred when it granted the Commonwealth's motion in limine; that the Commonwealth's attorney engaged in various types of misconduct; that there was insufficient evidence to convict him on counts one through eight, and that the evidence used to prove counts nine and ten was not credible; and that he was denied a fair trial based on the cumulative effect of the aforementioned errors. The circuit court denied Capshaw's motion for a new trial and his motion for a judgment notwithstanding the verdict.

Capshaw now appeals, raising the following claims: (A) the circuit court erred by not admitting testimonial evidence regarding the victim's past accusations of rape in violation of the Confrontation Clause; (B) the separation of witnesses rule was violated; (C) the Commonwealth's attorney engaged in misconduct by comments made in his closing arguments; and (D) there was an insufficiency of evidence to support his conviction.

II. STANDARD OF REVIEW

The circuit court denied Capshaw's motion for a judgment notwithstanding the verdict, as well as his alternative motion for a new trial. On appeal, we use the same standard of review for the denial of a judgment notwithstanding the verdict as we do for the denial of a directed verdict. See Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256, 261 (Ky.App.2007). "[T]he test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

Further, we review the denial of a motion for a new trial for an abuse of discretion. See Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky.App.2003).

III. ANALYSIS

We first note that the Commonwealth argues on appeal that Capshaw failed to include a statement at the beginning of each of his arguments showing "whether the issue was properly preserved for review, and if so, in what manner," as is required under Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). It appears that the Commonwealth is correct that Capshaw failed to include such a statement at the beginning of each argument. However, "dismissal based upon a failure to comply with CR 76.12 is not automatic." Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 482 (Ky.App.2005). Because we nevertheless find that Capshaw's claims fail on their merits, we decline to dismiss this appeal under CR 76.12.

A. CLAIM CONCERNING THE VICTIM'S PRIOR ACCUSATIONS

Capshaw contends that his convictions should be overturned and he should receive a new trial because the circuit court erred by excluding, under Kentucky Rule of Evidence (KRE) 412, i.e., the "Rape Shield" law,³ the testimony of two men against whom T.T. had previously made accusations of sexual misconduct. Prior to trial, the Commonwealth filed a motion in limine to exclude the testimony at trial of the two men. One of those men was A.C.⁴ and the other was E.H., a Monroe County Deputy Sheriff. During the trial, when Capshaw's counsel sought to introduce this evidence, the circuit court held an in camera hearing, in which A.C. and E.H. testified, as well as Detective Decker, who had investigated the allegations against E.H.

During the hearing, Detective Decker testified that T.T.'s mother had called the Kentucky State Police Post to report T.T.'s allegations that E.H. had sexual contact with T.T. "twice on one occasion." During the investigation, Detective Decker testified that T.T. made several inconsistent statements regarding her allegations against E.H. Detective Decker also attested that he told T.T.'s mother that T.T. should not have any further contact with E.H. because he did not want his investigation jeopardized.

Despite Detective Decker's admonition to T.T. to not contact E.H., E.H. gave the detective a tape recording of a telephone conversation E.H. made when T.T. called him. Detective Decker surmised after listening to the tape recording that the conversation occurred after he interviewed T.T. In the tape recording, T.T. told E.H. "you are going to have to take a polygraph test" and "you're going to get in trouble." The detective later had a conversation with T.T., in which he asked...