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RENDERED : OCTOBER 29, 2009 TO BE PUBLISHED

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2008-SC-000159-MR AND 2008-SC-000369-MR MICHAEL CECIL

V.

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE GEOFFREY P. MORRIS, JUDGE NO . 06-CR-002483

COMMONWEALTH OF KENTUCKY OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING IN PART AND REMANDING IN PART

APPELLEE

Appellant, Michael Cecil, was indicted on two counts of rape in the first degree and one count of intimidating a participant in the legal process . The first count of rape was based on allegations made by M.W., Appellant's former niece. The second count of rape was based on allegations made by J .A., Appellant's sister-in-law . M.W . testified that Appellant repeatedly raped her between January 2001 and December 2004, when she was eight years old until she was eleven years old . Appellant was married to M.W.'s aunt during this time and they lived with M.W.'s grandparents . M.W. frequently visited the home where the rapes

occurred. In addition to instances of sexual touching, M.W. testified to three specific instances of rape . The first rape was in her grandmother's bedroom, which she recalled because of a large mirror above the bed . The second rape occurred in Appellant's bedroom during the middle of the day, while the other children in the home were playing outside . M.W . recalled that she was wearing a towel when Appellant began raping her. During the act, M.W .'s brother, M.J .W., walked into the bedroom. Startled, Appellant jumped from the bed . M.J .W. left and returned outside . M.J.W. testified that he went to the bedroom because he had heard M.W . scream. When he entered, he saw that both Appellant and M.W . were unclothed from the waist up, and that M.W. was crying. Appellant leapt from the bed, then followed M.J.W. outside. He told M.J .W. that if he told anyone what he had seen, he would kill him . This threat gave rise to the intimidation charge. M.W . testified that a third rape occurred after the family had moved to another house in Louisville . She stated that Appellant entered her room while everyone was sleeping and raped her . She further testified that Appellant removed her clothing and held her hands back with his arms. The rapes ceased when Appellant and M.W.'s aunt divorced and he moved out of the house. Months later, M.W. ran away from home . When she returned, she confessed the rapes to her grandmother. At this time, M.J .W.

also told what he had seen. M.W .'s grandmother contacted the police and Detective Joshua Judah began investigating the case . During his interviews of the family, he learned that Appellant had also raped his sister-in-law, J .A . J .A. claimed that Appellant raped her in 2001, when she was fourteen years old. She reported to police that Appellant had given her wine coolers to drink while the rest of the family was preparing for Thanksgiving the following day. She passed out from the alcohol and awoke on a bed with her shorts and underwear having been removed . Appellant was on top of her, forcing his penis into her vagina . He was wearing a condom . She screamed and struggled until he left the room. J .A. ran to her own room and pushed a dresser in front of the door to keep him out. Two months after Detective Judah was assigned to the case, he called Appellant in for an interview. Appellant denied any misconduct with M.W. and specifically denied the incident in the bedroom witnessed by M.J.W. Appellant did, however, admit having sexual intercourse with J.A. According to Appellant, J .A. had seduced him and forced herself upon him. Appellant was eventually indicted on the aforementioned charges. He filed a motion to sever the charges involving M.W. and M.J .W. from the rape charge involving J .A. With the Commonwealth's consent, the motion was granted. The Commonwealth elected to proceed first with the rape charge involving M.W. and the intimidation charge involving M.J .W . Following a jury trial, Appellant was found guilty of first-degree rape and

intimidating a participant in the legal process. The jury recommended a twenty-year sentence on the rape count and a five-year sentence on the intimidation count, to be run consecutively. The trial court sentenced Appellant in accordance with the jury's recommendation . Following that trial, the Commonwealth made an offer on a plea of guilty as to the rape charge involving J .A. Appellant agreed to the offer in exchange for a sentence of imprisonment for ten, years . The trial court accepted the offer and, specifically citing KRS 532 .1 10(l)(d), ordered that the ten-year sentence run consecutive to the twenty-year sentence Appellant had received for the other rape conviction, but concurrent to the five-year sentence for intimidation . Appellant reserved the right to appeal the application of KRS 532 .1 10(l)(d) to his sentence. Appellant now appeals his conviction in the M.W . case and his sentence in the J.A. case. The cases have been consolidated for purposes of appeal . We turn first to Appellant's arguments with respect to the convictions involving M.W. and M.J.W. Miranda Warnings . Appellant first claims that his constitutional rights were violated when Detective Judah questioned him without first apprising him of his Miranda rights . Defense counsel moved to suppress Appellant's statements, and a suppression hearing was conducted at which Detective Judah testified. The motion was ultimately denied.

At the suppression hearing, Detective Judah was the only witness to testify. He explained that he called Appellant to schedule an interview and Appellant agreed to come in two days later. During the interview, Detective Judah informed Appellant that the interview was voluntary, that he did not have to participate, and that he could leave at any time. At no time was Appellant under arrest. Following the interview, Appellant left the building. He was not arrested until four days later. In reviewing a motion to suppress, we first determine whether the factual findings of the trial court are clearly erroneous. Adcock v. Commonwealth, 967 S .W.2d 6, 8 (Ky. 1998) . We then review, de novo, the application of the law to the facts found . Id . At the outset, we conclude that the trial court's findings of fact in this case are supported by substantial evidence; specifically, the uncontested testimony of Detective Judah . The trial court concluded that Appellant was not in custody for purposes of Miranda at the time he gave the interview. Miranda warnings are only required when the suspect being questioned is in custody. Commonwealth v. Lucas, 195S .W .3d. 403, 405 (Ky . 2006) . "The inquiry for making a custodial determination is whether the person was under formal arrest or whether there was a restraint of his freedom or whether there was a restraint on freedom of movement to the degree associated with formal arrest." Id. The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave. Baker v. Commonwealth, 5

S .W.3d 142, 145 (Ky . 1999) . The United States Supreme Court has identified factors that might suggest that a seizure has occurred and that a suspect is in custody: the threatening presence of several officers ; the display of a weapon by an officer; physical touching of the suspect; and the use of tone of voice or language that would indicate that compliance with the officer's request would be compelled . United States v. Mendenhall, 446 U.S . 544, 554 (1980) . We agree with the trial court's conclusion that Appellant was not in custody during this interview. He had not been arrested and had appeared voluntarily for the interview. Se Lucas, 195 S .W.3d at 406 . He was expressly informed that he was free to end the interview and leave at any time. No other
officers appeared in the interview room . Appellant was not handcuffed . When

the interview ended, Appellant left the building. In light of these circumstances, a reasonable person would have believed that he or she was free to leave . The trial court correctly concluded that Appellant was not in custody, and the motion to suppress was properly denied .
Application of Rape Shield Law

Appellant moved the trial court to admit evidence of M.W.'s previous sexual conduct under the "catch-all" provision of KRE 412(b)(1)(C) . The trial court declined to hold an evidentiary hearing and denied the motion. However, M.W. was questioned on avowal following submission of the case to the jury. During this avowal testimony, M.W. discussed the period during which she ran away from home for several months . The abuse by Appellant had

stopped before M.W . ran away; however, she did not reveal the abuse to her grandmother until she returned home. While she was away, M.W. testified that she had had sexual intercourse with four men, explaining that she was scared and coerced each time.. One of these men involved her in -prostitution .
KRE 412 (b) (1) (C) permits admission of prior sexual conduct of a victim

where it "is directly pertaining to the offense charged ." Appellant argues that evidence of M.W.'s sexual conduct while she was a runaway is relevant to the rape charge because it establishes a motive for M.W . to fabricate her allegations . According to Appellant, M.W. returned home and feared getting in trouble for having run away, perhaps even fearing that she was pregnant or had contracted a sexually transmitted disease during this time. This fear, defense counsel argued, established a motive for M.W . to falsify the allegations and divert attention away from her own wrongdoing. The purpose of KRE 412 is to protect alleged victims of sex crimes against unfair and unwarranted assaults on their character, particularly the admission of past sexual conduct evidence. The KRE 412 balancing test contains an "obvious tilt toward exclusion over admission ." Commonwealth v. Dunn , 899 S.W.2d 492, 494 (Ky. 1995) (citing Lawson, The Kentucky Evidence Law Handbook,

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