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Deno v. Commonwealth9/22/2005
upon retrial, an objection to the use of such evidence and argument should be sustained.
Finally, Appellant asserts error with the trial court's refusal to instruct the jury on sexual misconduct. During the trial, the Appellant requested that the jury instructions include not only the charged offense of first-degree rape under KRS 510.040, but also, as a lesser included crime, sexual misconduct. The Commonwealth responded to Appellant's instruction request with the argument that the commentary of the sexual misconduct statute, KRS 510.140, states that it is intended to apply only to cases where the defendant and victim are of a young age. The trial court denied Appellant's request and the jury received an instruction only on the charge of first-degree rape. The Appellant now argues that it was erroneous for the trial judge to instruct the jury to convict Appellant for first-degree rape or acquit. Appellant points to the commentary to KRS 510.140 which states that the sexual misconduct statute also acts as "a useful plea-bargaining tool for the prosecution in certain cases even though some degree of forcible compulsion/incapacity to consent may be present."
A person is guilty of sexual misconduct when "he engages in sexual intercourse or deviate sexual intercourse with another person without the latter's consent., Although this statute would seem to apply to the case at bar, "our 'longstanding rule' is that this statute was intended to apply only in cases where the victim is fourteen or fifteen and the defendant less than twenty-one, or when the victim is twelve-to-fifteen and the defendant is less than eighteen years of age." This rule was developed from reading KRS 510.140 as interpreted by its commentary. Therefore, because the victim was of majority age and the Appellant was of majority age, the trial judge's refusal to instruct the jury on sexual misconduct was not erroneous.
Moreover, the evidence does not indicate that such an instruction would be appropriate. While the victim was profoundly intoxicated, there is no indication that Appellant was similarly impaired. Thus, if he engaged in sexual intercourse with the victim while she was so impaired and without her consent, KRS 510.040 is the appropriate statute.
Based on the error made by the trial judge regarding hybrid representation, this case is reversed and remanded for a new trial.
Cooper, Graves, Johnstone, Roach, Scott, and Wintersheimer, JJ., concur.
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