Griffin v. Com.
| Decision Date | 19 September 1978 |
| Citation | 576 S.W.2d 514 |
| Parties | Kenneth Lee GRIFFIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack E. Farley, Public Advocate, Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
By judgment of the Warren Circuit Court the appellant was found guilty of first-degree sodomy (KRS 510.070(1)(a)) and kidnapping (KRS 509.040(1)(b), (c)). He was committed to the custody of the Bureau of Corrections to serve a sentence of 20 years for the former offense and 20 years and one day on the latter. The sentences were ordered to run consecutively. This appeal is from the kidnapping conviction only. The appellant argues three grounds for reversal.
The appellant admits anal intercourse with the complaining witness; however, he contends that it was by consent and at the solicitation of the Commonwealth's witness Robert Lyon. His evidence tending to support his defense contradicted that of the Commonwealth. The jury was entitled to reject the testimony offered by the appellant and to accept that offered by the Commonwealth, or to reject that offered by the Commonwealth and accept that offered by the appellant. It chose to believe the Commonwealth's witnesses. A statement of the Commonwealth's evidence is necessary to demonstrate the fallacy of the appellant's alleged errors.
On Saturday, June 25, 1977, at 9:00 p. m., Robert Lyon, 17 years of age, reported to work at the Park City Daily News, a local Bowling Green, Kentucky, newspaper. At about 2:00 a. m. Lyon left his job on a coffee break, ostensibly for the purpose of getting something to eat and to look for a friend. He was unable to locate his friend, and while driving back to work he was stopped by what he thought were two men and a woman. One of the men pulled Lyon out of the car and drove it to a house known as 513 Kentucky Street, Bowling Green, Kentucky, about one-half block away. The appellant and one of the other persons held Lyon and forced him to go with them into the house where the car had been driven. The appellant was dressed as a woman and Lyon was of the opinion that he was in truth and in fact a woman. Once Lyon was inside the house, the two men left the premises and left Lyon alone with the appellant. The appellant then announced that he had a 38-caliber handgun in his purse. He removed Lyon's clothing and threw him face down on a couch. He then rubbed Lyon's rectum with vaseline and committed anal intercourse. The appellant continued this conduct for about one and one-half hours. In an effort to change positions, the appellant momentarily released Lyon, who jumped up, grabbed a bottle and hit the appellant on the head. While the appellant was suffering from the blow to his head, Lyon hurriedly made his escape through a window, but without clothing other than one sock. He grabbed a towel from his automobile as he ran by in his escape and ran back to the place of his employment, where he secured assistance.
As to the charge and conviction of kidnapping, we need to reflect on the definition of the crime (KRS 509.040) and the exemption provision of KRS 509.050. KRS 509.040, the kidnapping statue provides:
"(1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage.
(2) Kidnapping is a capital offense unless the defendant voluntarily releases the victim alive, substantially unharmed, and in a safe place prior to trial, in which case it is a Class B felony."
KRS 509.050, the exemption statute, provides:
The appellant argues that even though the jury found him guilty of kidnapping, the Commonwealth's evidence that Lyon was forced to go a distance of only one-half block and was forcibly restrained for a period of only one and one-half hours brings the case within the exemption provided for by KRS 509.050 and mandates a finding of not guilty of the charge of kidnapping.
In order to determine whether the kidnapping exemption is applicable, we must apply a three-pronged test. First, it must be determined whether the appellant's criminal purpose was the commission of a criminal offense defined outside KRS Chapter 509. Secondly, it must be determined whether the interference with Lyon's liberty occurred immediately with and incidental to the commission of the offense of sodomy. Finally, it is necessary to determine whether the interference with Lyon's liberty exceeded that which is ordinarily incident to the commission of the act of sodomy. The three elements of the exemption statute are joined with the conjunctive "and." If any one of these three factors is not mandated by the evidence, then the appellant is not entitled to the benefit of the exemption statute. Simply stated, the appellant must jump through three hoops and the failure to jump through any one of the three hoops is a failure to establish his entitlement to the benefit of the exemption statute. The appellant failed to at least clear the third hoop and thereby is not entitled to the benefit of KRS 509.050. We find it unnecessary, therefore, to determine whether the appellant cleared hoops one and two.
The offenses of kidnapping and the applicability of the exemption provided by KRS 509.050 have been the subject of much recent consideration and writing by this court. We deem it unnecessary at this time to go into a further instructive dialogue. Calloway v. Commonwealth, Ky., 550 S.W.2d 501 (1977); Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977).
The trial judge did not err in refusing to grant a directed verdict of not guilty.
The appellant next argues that the prosecutor had no authority to elect to try the appellant for a Class A felony of kidnapping. Subsequent to the jurors being qualified by the court and prior to the Commonwealth's voir dire, the following colloquy took place:
"Mr. Caudill: The Commonwealth moves at this time to prosecute the crime of kidnapping as a Class A Felony in this case, Commonwealth vs. Kenneth Lee Griffin.
Mr. Poole: The defendant would join in on that motion, Your Honor."
The trial court granted the joint motion and the trial proceeded as if the appellant was being tried for the offense of kidnapping as a Class A felony rather than as a capital offense.
The court, the Commonwealth's Attorney and counsel for the appellant...
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Murphy v. Com.
...incidental to the commission of the underlying offense. Smith v. Commonwealth, Ky., 610 S.W.2d 602 (1980); see also Griffin v. Commonwealth, Ky., 576 S.W.2d 514 (1978). Here, the first prong of the test is satisfied since the underlying offense was first-degree burglary, defined in KRS 511.......
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Wood v. Com., No. 2003-SC-0535-MR.
...his criminal purpose. This Court employs a three-prong test to determine when the kidnapping exemption statute applies. Griffin v. Commonwealth, 576 S.W.2d 514 (Ky.1978). First, the underlying criminal purpose must be the commission of a crime defined outside of KRS 509. Second, the interfe......
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Moore v. Com., 80-SC-560-MR
...punitive sanctions for rape, robbery, and other offenses than are otherwise available. See commentary, KRS 509.050; Griffin v. Commonwealth, Ky., 576 S.W.2d 514 (1978). Griffin reiterates the three pronged test of the exemption statute. All three requirements listed in KRS 509.050 must be I......
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Douglas v. Commonwealth, No. 2006-SC-000882-MR (Ky. 12/20/2007), 2006-SC-000882-MR.
...incident to the commission of the underlying crime. Wood v. Commonwealth, 178 S.W.3d 500, 515 (Ky. 2005) (citing Griffin v. Commonwealth, 576 S.W.2d 514 (Ky. 1978)). Temporary restraint, of course, is an ordinary incident of robbery, an offense defined outside KRS Chapter 509, but in Timmon......