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NOT TO BE PUBLISHED OPINION

IMPOR 'ANT NOTICE

THIS OPINION IS DESICNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCED URE PROMUL OA TED B Y THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY INANY OTHER CASE INANY CO UR T OF THIS STA TE.

RENDERED : JUNE 16, 2005 NOT TO BE PUBLISHED '

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2004-SC-000198-MR l "1~~A

WILLIAM J . DAUGHERTY

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-7 - 7APPELLANT

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APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE GEOFFREY P. MORRIS, JUDGE INDICTMENT NO. 02-CR-001190 APPELLEE

COMMONWEALTH OF KENTUCKY MEMORANDUM OPINION OF THE COURT AFFIRMING

On May 13, 2002, police officers responded to a "911" call reporting trouble in an alley in downtown Louisville . When the officers arrived, they found two men, both with their pants down, standing over the battered and bruised female victim . The two men, William J. Daugherty and William Brooks, were jointly indicted for two counts of rape, acting alone or in complicity, and two counts of sodomy, acting alone or in complicity . It is undisputed that Daugherty had sexual intercourse with the victim and that Brooks put his penis in her mouth. However, there was conflicting evidence concerning whether Brooks had sexual intercourse with the victim. Ultimately, Brooks pled guilty to all four counts and Daugherty proceeded to trial . He contended that the victim consented to all of the sexual acts that occurred . A jury found Daugherty guilty of rape in the first degree as a principal, rape in the first degree by complicity and sodomy

in the first degree by complicity . He was sentenced to ten years on each count to run consecutively, for a total of thirty years. Daugherty appeals to this court as a matter of right and asserts that there was insufficient evidence to convict him of complicity to rape . He also attacks the jury instructions on several grounds. Under Kentucky's complicity statute a person is guilty of an offense committed by another if he acts with the intention of promoting or facilitating the other person's commission of the offense .' In addition to Daugherty's conviction of rape in the first degree for his conduct as a principal actor, he was also convicted of a second count of rape in the first degree as an accomplice to Brooks . He urges that the evidence was insufficient to prove that Brooks committed the act of rape in the first degree and, consequently, insufficient to prove his own complicity in the alleged act. Daugherty is correct that he cannot be guilty of complicity without proof that Brooks committed the offense and, on that basis, Daugherty moved for a directed verdict based on insufficient evidence, thereby properly preserving the issue for our review. Sexual intercourse by forcible compulsion constitutes rape in the first degree. Daugherty argues that there was insufficient evidence of sexual intercourse between Brooks and the victim . The victim testified that Brooks' penis never penetrated her vagina. Likewise, Brooks told the police that he was unable to maintain an erection because he had been smoking crack cocaine. The Commonwealth points out, however, that after the incident the victim told the police that both men had penetrated her. The Commonwealth further highlights Brooks' own statement that his penis "kept

2KRS 502 .020(1). Harper v. Commonwealth , 43 S .W .3d 261 (Ky . 2001). 3KRS 510.040(1)(a) . 2

slidin' out," arguing the logical inference of such a statement, that at some point it had been "in." Given that "[s]exual intercourse occurs upon any penetration, however slight,
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we agree with the trial court that the evidence supported an instruction on rape

in the first degree as well as attempted rape . Daugherty's motion for directed verdict was properly overruled . Daugherty challenges the trial court's instructions for each of the offenses that concerned his conduct as Brooks' accomplice . In addition to Daugherty's conviction of complicity to rape in the first degree, he was convicted of sodomy in the first degree for his conduct as Brooks' accomplice Even though the instructions were

directed at Daugherty's acts as an accomplice, the literal wording of these two instructions permitted the jury to find Daugherty guilty if, either "acting alone or in complicity with" Brooks, he committed the offenses . Daugherty argues that these instructions deprived him of a unanimous verdict on the complicity charges. Specifically, he asserts that the jury was permitted to convict him as a principal or as an accomplice notwithstanding the complete lack of evidence that he committed sodomy as a principal . Similarly, the complicity instructions permitted the jury to convict him of rape as a principal or as an accomplice even though rape as a principal was covered in a separate instruction. In other words, he views the instructions as allowing two principal rape convictions . Section 7 of the Kentucky Constitution mandates that a jury of twelve persons reach a unanimous verdict to convict a person of a crime .5 An instruction presenting alternate theories of guilt may violate a defendant's right to a unanimous

4KRS 510 .010(8) . 5Wells v. Commonwealth , 561 S.W .2d 85 (Ky. 1978) .
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verdict if one of those theories is totally unsupported by the evidence .6 Furthermore, we have held that the error, if preserved, is not subject to a harmless error analysis .' However, Daugherty neither objected to these instructions, nor did he tender his own . Therefore, this issue is not properly preserved .8 Accordingly, we must decide whether the instructions constitute palpable error. 9 To constitute palpable error, a review of the entire record must reveal a substantial possibility that the result would have been different but for the error.'

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