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Deno v. Commonwealth9/22/2005
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
Appellant, James Anthony Deno, was indicted by a Jessamine county grand jury for rape in the first degree and for failing to register as a sex offender. Prior to trial, the latter charge was severed because of its prejudicial effect. At Appellant's trial for rape, the jury found him guilty and recommended a sentence of twenty years. The trial court entered a judgment consistent with the jury's recommendation. Appellant appeals to this Court as a matter of right asserting four claims of reversible error: (1) that the trial court erred when it informed Appellant he had no right to hybrid representation; (2) that the trial court erred when it held an inadequate hearing on Appellant's pro se request for substitute counsel; (3) that Appellant was unfairly prejudiced when the trial court admitted evidence regarding Appellant's refusal to voluntarily provide biological specimens; and (4) that the trial court erred when it refused to instruct the jury on sexual misconduct. Based on Appellant's first claim of error, we reverse and remand for a new trial.
On April 5, 2003, the victim, J.M., was at Appellant's trailer with her boyfriend, Kevin Elder. J.M. and Elder were there to visit with Elder's friends Chris Coleman and Chris's father, Tim Coleman. The Colemans were staying with Appellant. Although J.M. knew the Colemans, she had never met Appellant nor had she ever been to Appellant's home. That evening, J.M., Kevin Elder, the Colemans, and Appellant drank beer and watched a movie. J.M. testified that the Colemans and Appellant also smoked marijuana. Eventually, Chris Coleman went to bed and Appellant, Tim Coleman, J.M., and Elder stayed up to play cards. J.M. testified that she then began taking shots of whiskey. She estimated that over the course of the evening she drank five or six beers and took four to six shots of whiskey. J.M. became intoxicated, vomited, and then passed out on Appellant's couch in the living room. Elder testified that he was under the impression that Appellant also found a spot on the floor to sleep.
J.M. said that throughout the night she slipped in and out of consciousness. She stated that she awoke at one point to find a male on top of her penetrating her vagina. J.M. became scared and confused and tried to stop the man on top of her by rolling over, but she was unable to do so. J.M. said at one point she heard Appellant's voice beside her telling her to be quiet.
Around dawn the following morning J.M. testified that she woke up on the floor. She said her shirt and bra were pulled up exposing her breasts and her pants and panties were pulled down below her knees. J.M. was confused and became hysterical because she was unaware of how she ended up on the floor with her clothes as they were. When Elder awoke he saw J.M.'s condition but was unable to get J.M. to tell him what had happened. Elder testified that he saw Appellant awake, sitting on the couch. Elder said he confronted Appellant about J.M. but that Appellant denied having done anything. J.M. testified that she went to the bathroom and wiped off what she believed to be semen. Then J.M. and Elder left Appellant's home in Elder's car. In the car Elder asked J.M. if Appellant had raped her and J.M. said yes.
Chris Coleman testified that when J.M. and Elder left Appellant's trailer, Appellant told the Colemans a different story about what had happened. He said he was sleeping on the couch when J.M. pulled him to the floor and started to initiate sexual intercourse. Appellant said that when J.M. saw Elder sleeping on the other side of the room, she realized that she h
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