Linville v. Commonwealth

• Court: Supreme Court of Kentucky
• Decision Date: 21 June 2012
• Docket Number: 2011-SC-000109-MR
• Citation: Linville v. Commonwealth, 2011-SC-000109-MR (Ky. Jun 21, 2012)
• Parties: CECIL GENE LINVILLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

CECIL GENE LINVILLE APPELLANT

v.COMMONWEALTH OF KENTUCKY APPELLEE

2011-SC-000109-MR

Supreme Court of Kentucky

RENDERED: JUNE 21, 2012

IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM MASON CIRCUIT COURT

HONORABLE STOCKTON B. WOOD, JUDGE

NO. 10-CR-00008

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Cecil Gene Linville appeals as of right from a February 1, 2011 Judgment of the Mason Circuit Court convicting him following a jury trial of first-degree unlawful imprisonment, Kentucky Revised Statute (KRS) 509.020; fourth-degree assault, KRS 508.030; and third-degree terroristic threatening, KRS 508.080. For the felony unlawful imprisonment offense, Linville was sentenced as a first-degree persistent felon to a maximum term of twenty years in prison; he was sentenced to concurrent twelve month sentences for the misdemeanor assault and terroristic threatening offenses. These charges arose from an incident in December 2009 between Linville and his then-girlfriend AJ. AJ accused Linville of having restrained her in their bedroom one morning and of subjecting her to verbal and physical threats and to physical assaults that culminated in sodomy and rape. The jury acquitted Linville of the sodomy and rape charges, but, as noted, found him guilty of other offenses. On appeal,Linville contends that the trial court erred (1) by denying his motion for a directed verdict; (2) by refusing to dismiss the unlawful imprisonment charge for lack of evidence; (3) by misapplying the kidnapping exemption statute, KRS 509.050; (4) by failing to instruct the jury with respect to that statute; (5) by excluding evidence offered to impeach AJ; (6) by permitting the introduction into evidence of Linville's arrest photo; and (7) by amending the persistent felony offender portion of the indictment. Finding no reversible error, we affirm both Linville's convictions and his sentence.

RELEVANT FACTS

The Commonwealth's case rested largely on the testimony of twenty-five year old AJ. She, it appears, had lived for several years with one Jonathon Henderson with whom she had had two children. In September 2009, Henderson was incarcerated. Not long thereafter AJ and her children, then aged one and two years, began living with Linville. They lived for a few weeks with Linville's mother, in Maysville, but in about the second week of December 2009 they moved to Sardis, Kentucky, into the mobile home of Linville's former girlfriend, Valerie Berry, who shared the three-bedroom home with her then-boyfriend Darrin Mitchell.

According to AJ, at about 7:00 on the morning of December 20, she and Linville were alone in their bedroom in Berry's mobile home when Linville awakened her by hitting her in the face. He was angry because he had found a letter from Henderson to AJ in which Henderson declared his continued love and his hope that he and AJ could resume their life together upon his releasefrom prison. AJ testified that Linville repeatedly struck her, threatened to continue to strike her if she made any noise, and told her how he would kill Henderson in front of her and then kill her. After this had gone on for some time, according to AJ, she tried to dial 911 on her mobile phone. Linville saw her, held an opened pocketknife to her throat, and said, "Try me now, bitch." Several times AJ asked Linville to let her go, but he refused and told her that she was not leaving until he got what he wanted. What he wanted, AJ testified, was sex, and ultimately he forcibly compelled her to engage in both oral sex and intercourse. At that point, according to AJ, Linville became remorseful and finally agreed to let her go.

AJ then went to Berry and Mitchell's bedroom and asked Berry to give her the Christmas gifts for AJ's children that she had stored in Berry's closet. Berry and Mitchell testified that this was sometime between 9:00 and 10:00 a.m. AJ then loaded the gifts and her children in her car and drove to her grandmother's house in Maysville. She told her grandmother some at least of what had happened, and her grandmother advised her to contact the police.. Because Sardis, where the alleged incident occurred, is outside the jurisdiction of the Maysville Police Department, a Maysville police officer referred AJ to the Mason County Sheriff's Department. ,

AJ made her complaint to a Mason County deputy sheriff. The deputy testified that AJ appeared to him to have bruises beneath one of her eyes and inside her upper lip and that her lower lip appeared swollen. He photographed those injuries—the photographs were introduced into evidence—and then tookAJ to the Meadowview Regional Medical Center. A sexual assault nurse examined AJ, and though, aside from the minor facial bruises the deputy had noted, she found no evidence of injury, she collected samples which eventually proved to contain DNA matching that of Linville. Later that evening, still December 20, 2009, the deputy arrested Linville at Berry's mobile home. Linville had on his person two small pocketknives. The deputy did not, at that time, interview either Berry or Mitchell, but Berry gave him a letter written by A J that Berry and Linville had found in AJ's vehicle shortly before the alleged attack. The deputy testified that because this was not a letter from Henderson to AJ, he had not deemed it very important and had lost it. A few months later, the deputy did take a statement from Berry, who told him, among other things, that Linville had been very possessive of AJ.

The Commonwealth's case consisted of AJ's testimony, corroborated to some extent by what appeared to have been minor bruising on her face; by forensic evidence showing that intercourse had occurred; by Linville's possession of the two knives; by Linville's having seen, shortly before the incident, at least one letter apparently not meant for his eyes; and by Berry's statement to the deputy about Linville's possessiveness.

Linville did not testify, but in addition to vigorously cross-examining AJ, he presented testimony by Berry and Mitchell and by AJ's mother and grandmother meant to impeach AJ's account of that December morning and to cast doubt upon her veracity. Berry and Mitchell both testified that the mobile home was small and not at all sound proofed, making it likely that they wouldhave heard an angry and violent assault such as AJ alleged, but they had heard nothing. Berry in particular testified that she had been awake all night playing a computer game and so would have heard any disturbance. Berry and Mitchell also testified that AJ's demeanor that morning was normal and pleasant and that her interaction with Linville appeared affectionate. Berry testified that she had gone to the kitchen that morning and had encountered AJ there getting something to drink. AJ had not appeared at all upset, and she had said nothing about any mistreatment by Linville. On cross-examination, Berry and Mitchell, both convicted felons, conceded that their testimonies did not jibe with statements they had made before trial essentially to the effect that they had heard nothing that morning because they had been asleep until AJ came to their room to retrieve the Christmas gifts. Berry conceded as well that she remained particularly fond of Linville, with whom she had had a child and whom she had known for more than thirty years.

AJ's mother and grandmother—the mother lived with the grandmother and had seen A J the day of the alleged assault when AJ brought her children to her grandmother's house—both testified that AJ's complexion around her eyes was naturally bruised looking and that AJ's eyes appeared normal in the photographs the deputy had taken. This was contrary to the mother's pre-trial statement in which she had described AJ's face that day as not bleeding but as bearing the marks of someone's hand. Both women were also asked about AJ's reputation for truth telling, and both said that it was not good, the grandmother adding that AJ lied when it was convenient, and the mother thatAJ's stories were sometimes true and sometimes not. It was Linville's theory in closing that AJ had fabricated her allegations as a means of terminating the relationship. AJ's mother and grandmother both had known Linville and his family for years.

As noted above, the jury acquitted Linville of rape and sodomy, the most serious charges, but found him guilty of first-degree unlawful imprisonment, of fourth-degree assault, and of third-degree terroristic threatening. Linville's first contention on appeal is that the trial court erred by denying his motion for a directed verdict and in particular by refusing to dismiss the unlawful imprisonment charge. We begin our analysis with these contentions.

ANALYSIS

I. There Was Sufficient Evidence to Support Linville's Convictions.

Linville's attack on the sufficiency of the Commonwealth's unlawful imprisonment evidence is twofold. He first contends that AJ's testimony, which he characterizes as uncorroborated and unreliable, was insufficient as a matter of law to support the Commonwealth's charges. He also contends that even if Linville restrained AJ, there was no evidence that he exposed her to a risk of serious physical injury, one of the elements of first-degree unlawful imprisonment, and thus the...