Stone v. Commonwealth, No. 2008-CA-001424-MR (Ky. App. 1/8/2010)
| Decision Date | 08 January 2010 |
| Docket Number | No. 2008-CA-001424-MR.,2008-CA-001424-MR. |
| Parties | Randy STONE, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Appeal from Campbell Circuit Court, Honorable Fred A. Stine, V, Judge, Action No. 07-CR-00358.
Michael W. Bouldin, Covington, Kentucky, Brief and Oral Argument, for Appellant.
Jack Conway, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Frankfort, Kentucky, Brief and Oral Argument, for Appellee.
Before: STUMBO, THOMPSON, and WINE, Judges.
Randy Stone ("Stone") appeals his conviction and sentence in the Campbell Circuit Court for attempted unlawful transaction with a minor. On appeal, he raises several allegations of error: (1) that he was entitled to a directed verdict because the Commonwealth failed to prove an essential element of the charged offense; (2) that the trial court erred by failing to grant his motion for a mistrial after a sexually explicit photograph was shown to the jury during opening statements; (3) that the trial court erred by granting the Commonwealth's motion in limine to preclude him from raising "impossibility" as a defense; (4) that the trial court erred by failing to instruct the jury on lesser-included offenses; (5) that the trial court erred by refusing to instruct the jury on entrapment as a defense; (6) that the trial court erred by failing to grant his motion for a mistrial based on allegedly improper comments about Jury Instruction Number Four; and (7) that the trial court erred by sustaining the Commonwealth's objection during his closing argument to his characterization of Kentucky Revised Statute ("KRS") 503.064. Upon review of the record and following oral arguments, we affirm.
In April of 2007, Stone was forty-three years of age. During that month, Stone began "chatting" with whom he believed to be a thirteen-year-old girl, "Tanya," over the internet. However, Tanya was never a real person. Instead, two members of a child-protection organization called "Perverted Justice" (an organization that collaborates with law enforcement to catch internet childpredators), played the role of Tanya. The two individuals who posed as Tanya were Thomas Donovan ("Donovan") and Eric Walker ("Walker"), volunteers for the organization.
The first "chat" occurred on April 9, 2007. Within the first few minutes of chatting, Donovan (pretending to be Tanya) told Stone that he was a thirteen-year-old female. Thereafter, Stone initiated a discussion about sex and asked Tanya whether she had ever had sex before. Stone further talked about setting up a meeting with Tanya. He indicated that he lived about five hours away from her. He sent pictures of his penis to Tanya during this first meeting using a webcam. Before sending the pictures, Stone asked Tanya whether the door to her room was closed. At the end of the first chat, Stone asked Tanya to erase any evidence of their discussion and told her not to tell anyone about it.
These "chats" between Stone and Tanya continued over the next fifty-eight day period. On three occasions (April 8, May 9, and May 22, 2007), Stone sent videos of himself masturbating to Tanya. The chats were transcribed and read to the jury. Stone frequently told Tanya to take steps to hide their conversations, such as deleting their chats or shutting her bedroom door. Stone told Tanya that he wanted to engage in sexual intercourse, touch her vagina, and asked her if she would perform oral sex on him. Further, he expressed to Tanya that he could get into a lot of trouble with a thirteen-year-old girl.
On June 12, 2007, Stone and Tanya discussed setting up a meeting. They originally planned to meet on June 21, 2007; however, Stone was not able to get off work that day, and a new meeting was set up for July 5, 2007. The meeting was to be held at what Stone believed to be Tanya's house1 in Highland Heights. Stone made the five hour drive from Almo, Kentucky to meet Tanya; however, police were not there that day due to a miscommunication. The meeting was rescheduled until the next day. Stone drove home to Almo and then returned the next day to meet Tanya. After driving a total of fifteen hours in a two-day period, Stone waited in a Lowe's parking lot (the meeting place) for Tanya to arrive.
For obvious reasons, Tanya never arrived. However, after observing Stone waiting in the parking lot for 20 to 30 minutes, Chief Mullins ("Mullins") of the Highland Heights police department approached Stone's vehicle. Mullins showed Stone a photograph, which was a picture of Stone that he had sent to Tanya online. Mullins asked Stone whether it was him in the photograph. Stone confirmed that it was. Mullins then said to Stone that he guessed Stone knew why he was there. Stone said, "Yeah, I do."
In his police interview, Stone later denied knowing that Tanya was thirteen-years-old. Instead, he averred that he believed Tanya was eighteen years of age. A search of Stone's house revealed webcams and handwritten directions to the sting house (the house where he believed Tanya lived).
On July 15, 2008, Stone was convicted by a Campbell County jury of first-degree attempted unlawful transaction with a minor. He was sentenced to nine-years' imprisonment.
Stone's first argument on appeal is that he was entitled to a directed verdict because the Commonwealth failed to prove an essential element of first-degree attempted unlawful transaction with a minor. Specifically, Stone argues that the KRS 530.064 requires that an actual minor be involved. As "Tanya" was actually an adult male, Stone argues that he could not be found guilty of the crime of attempt. Stone's second argument for directed verdict is that KRS 530.064 requires that the defendant "induces, assists, or causes a minor to engage in . . . illegal sexual activity." For this second argument, Stone argues that even if all of the alleged facts were true, the minor's activity would not have been illegal (rather, that only his own actions would have been illegal).
As is well established, upon a trial court's consideration of a motion for directed verdict:
[T]he 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 on the 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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Upon appellate review, the test for a directed verdict is whether, "under the evidence as a whole it would not be clearly unreasonable for a jury to find guilt." Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983). Only then is a defendant entitled to a directed verdict. Id.
Unlawful transaction with a minor in the first degree is defined by KRS 530.064(1), which states (1) A person is guilty of unlawful transaction with a minor in the first degree when he . . . knowingly induces, assists, or causes a minor to engage in:
(a) Illegal sexual activity . . . .
In the present case, Stone was charged with criminal attempt to engage in an unlawful transaction with a minor. KRS 506.010, the criminal attempt statute, provides in pertinent part:
(1) A person is guilty of criminal attempt to commit a crime when, acting with the kind of culpability otherwise required for the commission of the crime, he:
(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) Intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
(Emphasis added.) In addition to the above requirements, KRS 506.010 requires that the existence of a substantial step be found beyond a reasonable doubt. Id. However, as our Supreme Court has previously stated, whether a substantial step has been taken is a question for the jury. Young v. Commonwealth, 968 S.W.2d 670, 673 (Ky. 1998), overruled on other grounds by Matthews v. Commonwealth, 163 S.W.3d 11, 26-27 (Ky. 2005).
We first address Stone's argument that the statute requires the involvement of an "actual" minor. This argument may be quickly dispensed with as Stone was charged with criminal attempt, rather than with unlawful transaction with a minor. Although KRS 530.064 requires that an actual minor be involved, the criminal attempt statute (KRS 506.010) has no such requirement. Rather, KRS 506.010 creates culpability where the defendant's actions constitute a substantial step toward the commission of what would be a crime "under the circumstances as he believes them to be." Here, there was significant evidence that Stone believed he was dealing with a thirteen-year-old child, which is sufficient for the purposes of KRS 506.010.2
We now address Stone's next argument, that KRS 530.064 requires that the sexual activity of the minor be illegal. Stone interprets the language in KRS 530.064, requiring that the person "knowingly induces, assists or causes a minor to engage in illegal sexual activity," to mean that the minor's sexual activity must be illegal. Here, Stone argues that Tanya's behavior would not have been illegal, but rather that it would have been his own behavior that would have been illegal (if a sexual encounter had actually taken place between the two). However, this argument misinterprets the statute. In the case of sexual activity with minors, it is the sexual activity itself which is illegal. See, e.g., Young, 968 S.W.2d at 672. As any sexual activity between a forty-three year old man and a thirteen-year-old girl would have been illegal, the requirements of the statute...
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