Dunn v. Commonwealth

• Decision Date: 23 February 2012
• Docket Number: No. 2010–SC–000234–MR.,2010–SC–000234–MR.
• Citation: 360 S.W.3d 751
• Parties: Michael DUNN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

360 S.W.3d 751

Michael DUNN, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000234–MR.

Supreme Court of Kentucky.

Feb. 23, 2012.

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant Michael Dunn was convicted in Montgomery Circuit Court of five counts of first-degree sodomy. He was sentenced to ten years' imprisonment for each count, to run consecutively for a total of fifty years. Appellant now challenges his convictions before this Court as a matter of right. Ky. Const. § 110(2)(b). This Court affirms.

I. BACKGROUND

This case arose when L.M., a fourteen-year-old boy, reported that Appellant had forced him to have anal and oral sex at least seven times. L.M. is the nephew of Appellant's live-in girlfriend Delaine.¹ L.M. visited Appellant's house several times to go hunting or to do yard work. Appellant, who worked as an electrician, would sometimes ask L.M. to help him at job sites. L.M.'s father, John, also worked for Appellant from time to time.

L.M. testified that the first incident of sodomy occurred when he slept over at Appellant's house. Appellant, L.M., and John went hunting together one afternoon, and then Appellant invited L.M. to stay the night and go hunting again the next morning. That evening, while Appellant was showing L.M. his gun collection in the bedroom, he told L.M. to take off his pants. When L.M. refused, Appellant threatened to shoot him. Appellant then had anal sex with L.M. after again threatening to shoot him. He used a condom and lubricant. L.M. said this happened in the fall of 2007, when L.M. was thirteen years old.

The next incident happened around Thanksgiving 2007. L.M. and John went to Appellant's house to do yard work. Appellant again asked L.M. to stay the night, and L.M. agreed because Appellant threatened him. That night, after John left, Appellant forced L.M. to have anal sex in the bedroom after threatening him with a knife. The next morning, Appellant told L.M. not to tell anyone about what had happened or else Appellant would slit his throat.

The next two incidents happened in March or April of 2008 when L.M. was helping Appellant do electrical work in an unfinished house. The house was in Montgomery County near the Powell County line. Several other men were working at the house, including John. When the other men left to get some supplies, Appellant grabbed L.M., pulled his pants down, forced him to bend over, and had anal sex with L.M. He did not use a condom, but he did use lubricant. Later that day, Appellant again forced L.M. to have anal sex at the house.

The final incident of anal sodomy happened in the fall of 2008. L.M. went to Appellant's house to go hunting early one morning. After hunting for some time, Appellant and L.M. went to an area near a deer stand on Appellant's land. Appellant told L.M. to bend over the four-wheeler they were using. When L.M. refused, Appellant laid his gun on the four-wheeler, which L.M. interpreted as a threat. Appellant forced L.M. to have anal sex, using a condom and lubricant. Appellant discarded the condom on the ground in the woods.

L.M. also testified that Appellant forced him to perform oral sex on Appellant two times.

In November 2008, L.M. was sent to Stoner Creek Psychiatric Center because he was accused of killing cats and dogs. He disclosed to a counselor that Appellant had sodomized him. He was interviewed by Kentucky State Trooper Sam Hunt in December of 2008. L.M. believed he could find the place in the woods where he was sodomized in the fall of 2008, and so Trooper Hunt, L.M., and several other law enforcement officers hiked to the spot on Appellant's land where L.M. said the incident happened. After searching in the leaves and undergrowth, one of the officers found the condom that Appellant had discarded. The condom was later analyzed by a crime lab and found to contain semen that matched Appellant's DNA. L.M.'s DNA was also found on the condom.

At trial, Appellant called several witnesses to point out the inconsistencies in the dates that L.M. gave for the incidents, as well as in some of the details that he described. For example, Appellant argued that L.M. changed his story about what type of weapon Appellant used to threaten him, as well as when he was forced to have oral sex.

Appellant also took the stand himself and denied abusing L.M. at any time. He described trying to help L.M. and his family. In August of 2007, John asked Appellant if L.M. and his sister could live with Appellant for a brief time because John was having financial problems and was about to lose his home. L.M. and his sister lived with Appellant and Delaine for about three weeks. Appellant said he bought L.M. and his sister clothes and school supplies while the children were living with him.

At some point, a conflict developed between John and Appellant. John believed that Appellant and Delaine were trying to obtain custody of L.M. and his sister. When they were working at a job site together, John admitted to physically abusing L.M., and Appellant reported the abuse to social services. John continued to work for Appellant occasionally despite the conflict between them.

Appellant also explained why the condom with his semen was found near the deer blind in the woods. He said that a young woman named Lisa met him and L.M. when they were hunting in October of 2008. Appellant took Lisa for a ride on the four-wheeler, and then they had sex near the place where the condom was eventually found. Appellant said that he discarded the condom on the ground.

The jury convicted Appellant on five of the seven charged counts of sodomy. The jury recommended a sentence of ten years for each of the counts, and Appellant was sentenced to a total of fifty years' imprisonment.

II. ANALYSIS

A. Search and Seizure.

Appellant argues that the trial court erred when it refused to suppress the condom seized from his property during the search carried out by Trooper Hunt and other law enforcement officers. Appellant argues that the search violated his rights under the federal and state constitutions. For the reasons explained below, the trial court did not err and the condom was properly entered into evidence.

The trial court conducted a hearing on the motion for suppression of evidence and considered testimony from Trooper Hunt, the investigating officer. Trooper Hunt testified that soon after he interviewed L.M. in December 2008, he and four or five other officers from the Kentucky State Police and the local sheriffs department accompanied L.M. onto Appellant's property to search for the condom that L.M. said Appellant had used when he sodomized him in the fall of 2008. No warrant was secured before the search. The group of officers met on a third party's property and then hiked through the woods for about twenty minutes to reach the spot on Appellant's property where L.M. said the sodomy occurred, crossing a fence in the process. After arriving at the spot that L.M. described, the officers searched the ground and several minutes later found a condom under some leaves. The condom was collected and analyzed at a crime lab. It was later established that there was DNA material on the condom that matched Appellant's DNA and the victim's DNA.² At trial, the condom was the only physical evidence linking Appellant to the crimes.

The location where the condom was found was a heavily wooded area just off a four-wheeler trail and near a deer blind. Trooper Hunt estimated at the hearing that the spot was about 300 or 400 feet from a junkyard, which Trooper Hunt could see through the woods the day of the search. It was established that the junkyard was directly behind Appellant's house, so the spot where the officers searched was within several hundred feet of Appellant's house. The Commonwealth offered into evidence an aerial photograph of the area, and the defense provided a topographical map. Trooper Hunt was able to mark on the photograph and map all the relevant areas: Appellant's house, the junkyard, the area near the deer blind where the condom was found, and the location on a neighboring property where the officers parked before starting the search.

Appellant testified that he owned the land surrounding his house in common with other family members. Neither Appellant nor the other owners of the land gave permission to search the property. In the months and years before the search occurred, Appellant had made several efforts to prevent people from coming onto his land. He posted “no trespassing” signs and maintained a fence along parts of the property line. He put a letter in the local newspaper describing the boundaries of his property and stating that people who wished to use the trails on the property were required to ask permission. (Apparently, some members of the public had believed-incorrectly-that there was a public right-of-way across the property.)

Appellant argues that the area that was searched falls under the protection of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution because of the area's close proximity to his home and his efforts to keep the area private. He argues that the warrantless search was unconstitutional and so the evidence obtained should have been suppressed by the trial court.

Generally, a house and its surrounding curtilage are protected by the Fourth Amendment's proscription against warrantless searches and seizures. United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The curtilage is defined as the area around a house that can be considered part of the home itself because it harbors the “intimate activity” associated with the private life of the home. Id. (quo...