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                    foupttttu~ dtnurf nf ~mfurkll

                                   2016-SC-000358-MR


  MICHAEL RAYDUNGAN ·                                                    ·APPELLANT


                       ON APPEAL FROM PULASKI CIRCUIT COURT
. ·v.                     HONORABLE DAVID A. TAPP, JUDGE
                        NO. 15-CR-00018 AND NO. 16-CR-00081


  COMMONWEALTH OF KENTUCKY                                                   APPELLEE



                           M;EMORANDUM OPINION OF THE COURT

             AFFIRMING IN PART, VACATING IN PART AND ·REMANDING

         Michael Ray Dungan was convicted of one coul'1:t of third-degree rape,

  KRSI 510.060; one count of incest, KRS 530.020; one count of abuse of an

  adult, KRS 209.990; and three counts of first-degree persistent felony offender
                .      I                                                 .




  ("PFOl"). The trial court sentenced him to a total of twenty years'.

  imprisonment, and he now appeals as a matter of right. For the following

  reasons, we affirm in part, vacate in part and remand for resentencing.




        ·1   Kentucky Revised Statutes.
                                      I. Background.

         At his home on Saturday, November 2, 2013, Dungan sexually assaulted

his 36-year-old stepdaughter, J.M., who is wheelchair-bound, moderately ..

intellectually impaired, and physically disabled.
                                 .      .
                                                  At the time, Dungan was
                                                           \




J.M.'s    pr~mary   caretaker; he looked after her while his wife, Janie Dungan

(J~M.'s   biological mother), worked. J.M. has progressive cerebellar ataxia; her

condition has gradually worsened throughout her life. She has a low IQ,

attended special education classes while in school, and requires assistance

·using the restroom, taking baths, and eating.

         On the day in question, J.M.'s aunt (Dungan's sister-in-law), Bobbie Jo

Helton, arrived at the Dungan residence to' borrow a movie .. Bobbie Jo lives

next door to the Dungans.· At Dungan's triaJ, Bobbie Jo testified that no one

answered when she knocked on the door, which she said was unusual. She

knocked again and again no one answered. Bobbie Jo stated she then opened

the door and hollered; still no one answered. Bobbie Joe entered the home and

observed J.M slumped down in her wheelchair iri Dungan's bedroom, where

J.M. normally does not go. J.M. was turned sideways, facing the bed. Dungan

· emerge.d from the bedroom, pulling up his shorts. Bobbie Jo stated that

neither he, nor J.M., said anything to her. Bobbie Jo turned and left

         Bobbie Jo contacted her niece (J.M.'s sister), Erin Wolf, about the·

incident; Erin reported it to J.M.'s motj:ier, Janie, the next morning. When

Dungan returned home from church that morning, Janie and Erin confronted

him. Janie told· Dungan, "You've done it again and you're leaving" and packed

                                           2
up his clothing. Erin called the police.· Dungan told Janie what had happened

was her fault because she would not go to church with him. Janie replied that

he was going back to jail, to which Dungan responded that he did not need jail,.

he needed therapy, because he was sick. Dungan then grabbed a knife and

threatened to kill himself. About that time, the police arrived and arrested

him;

       Erin took J.M. to the hospital to be examined. A sexual assault kit was

conducted; the. external genital swab performed on J.M. was. later confirmed to

contain semen, and the Advanced Y-STR analysis of the external genital swab

matched Dungan and his paternal relatives, making it 2,141 times more likely

that the DNA came from Dungan or one of his male paternal relatives than

froni a random caucasian male. The only other two males in Dungan's family

were his son and his nephew. Testimony at trial revealed that neither was in

the area on or around November 2, 2013.

       Later, .Erin took J.M. to meet with a forensic investigator· in Russell

County. J.M. testified at trial that she recalled this interview and stated that

she. told the investigator the truth. However, J.M.'s trial testimony was

inconsistent with what she had told the for.eri.sic investigator. At trial, J.M.

testified that she remembered the police coming to her home and that

afterwards Dungan did not live with them anyrpore. She testified. that Dungan

never touched her with his privates~ nor had she ever seen his privates .. She

did not remember Bobbie Jo almost catching them right before he stopped

living with them. She stated she remembered going with Erin to the forensic

                                          3
investigator and that she told the investigator the truth, which was that

Dungan had touched her. She ~as asked by defense counsel.if she told the

police that Dungan did not touch her, and J.M. said, "but he did."

      Over defense's objection, the Commonwealth played portions of J.M.'s

recorded interview with the forensic investigator. Because J.M.'s trial

testimony was inconsistent with statements she had made to the forensic

investigatq,r,
           v
               the Commonwealth
                             .
                                sought to impeach her using the recorded

interview. J.M. told the forensic investigator .that Dungan had "put his thing iJ:l

her'' by putting her on the bed, standing up and pulling, down his pants. He

then "put his thing
                 .
                    in her crotch" and told J.M. that he did not want her to get
                                                                              .

pregnant. J.M. said that Bobbie Jo almost caught them before the police came.

J.M; explained that she did not want her dad to find out that she was talking
                                                                  (

and she did not want this to happen to anyone else. She knew what had

happened was dirty, and was afraid that her parents would get divorced if

people found out.

      To elicit this testimony from J.M., the Commonwealth undel"Went a ·

lengthy process of playing the question asked by the forensic investigator,

pausing the video, asking J.M. if she was asked the question, and, when J.M;

said no, playing her recorded answer. On cross-examination, defense asked

J.M. if Dungan put his thing inside her, and she said it was between her legs

because he was afraid she would get pregnant.

      Also over· defense's objection, ·Dungan's 1992 statement, wherein he

admitted to sexually assaulting J.M., was admitted through Dom Acciardo, a
                                                                          \

                                        4
retired KSP trooper. who investigated allegations of sexual misconduct involving·

Dungan in the early 1990's. At defense's request, the trial court admonished

the jury to consider the statement only as it tends to prove,   o~   disprove, lack of

mistake, opportunity, common scheme or plan, motive, and state of mind.

       Dungan testified in his defense, claiming that the semen found on J.M. 's.

genitals .could have been transferred from the bedsheets where he and Janie
                           '\.
had sex the·night before.· Dungan denied sexually assaulting J.M., and
                   -             '                                   .    .
explained that because she had been complaining about her pants being on

backWard, he had come into the bedroom, stood her up, pulled her pants

down, put her on the bed, pulled her pants off, slipped them back on, stood        h~r


up, and put her back in the wheelchair. He said he was in the process of

folding laundry when he heard a knock on the door, and that his shorts got

hung up on J.M.'s wheelchair as he passed by to answer the door. He

explained that was the reason, he was_pulling up his pants when Bobbie Jo saw
                                                                                         )

him.

       The defense introduced evidence that at aprior plea colloquy in this

case, to complete. the plea, Dungan said "one thing led to another and he

ejaculated on J.M." But because Dungan refused to admit fo having sexual

intercourse with J.M., the Commonwealth rescinded the plea offer.· On the

·stand, Dungan also admitted to pleading guilty to sexual abuse involving J.M.

in the 1990's.. Dungan claimed he signed the 1992 statement to protect his

family from the scrutiny of a trial.




                                        5
       At the close of the Commonwealth's case-in-chief and at the close of all

 the evidence, defense moved for a directed verdict on the third-degree rape and

 incest charges on grourids that no evidence of penetration had been presented.

The Commonwealth responded that the jury could reasonably infer that when ..

J.M.· said Dungan "put his thing in her" that penetration had occurred. The .

 Commonwealth further pointed out that the presence of Dungan's sperm on

 the external genital swab ofJ.M,. was evidence of sexual contact, from which
   .                                   .
the jury could draw its _own conclusions. The trial court denied Dungan's

motions for a directed verdict, noting that any penetration, howeyer slight, was

· sufficient. Defense also objected to the jury instruction with respe.ct to abuse

of an adult, and requested that a definition be included for "sexual abuse." The

 trial court overruled defense's objection and declined to define "sexual abuse."

       Ultimately, the jury convicted Dungan of third-degree rape, incest, and

abuse of an ·adult. During sentencing, the ju:ty heard evidence that in 1994,

 Dungan pled guiltY to two counts of third-degree rape, and received a 30-

month prison sentence. In 2007, Dungan         pl~d   guilty to first-degree trafficking

in" a controlled substance (cocaine}, firearm enhanced, and received a 15-year

sentence. Dungan was on parole for this conviction in November 2013.

Dungan testified that he was not guilty of any of these crimes. The jury found

him guilty of PFO 1, and recommended five "years for rape, enhanced to 15 years

by the.PFOl conviction; five years for incest, enhanced to 15 years; and ten

years for abuse of an adult, enhanced to 15 years, for a total recommended



                                           6
sentence of 45 years. The trial court sentenced Dungan to the maximum 20

years''imprisonment .. On appeal, Dungan raises four claims of error.

                                II. Issues on appeal.

          a. The convictions for third-degree rape and abuse of an adult
                        subjected Dungan to double jeopardy. _
      Durigan argues that his convictions for third-degree rape and abuse of

an a_dult violated the constitutional and statutory prohibition against double

jeopardy. We review these two related issues in turn.

                i. Constitutional protections against double jeopardy.

     . Though Durtgan failed to raise this issue before the trial court, "the

constitutional protection against double jeopardy is not waived by failing to

object at the trial level." Kiper v. Commonwealth, 399 S.W.3d 736, 740 (Ky.

2012) (internal quotations and citation omitted). Accordingly, Dungan's

constitutional double jeopardy argument is properly before us.

      The Doµble Jeopardy Clause of the Fifth Amendment to the United

States Constitution prohibits convicting or punishing a person. twice for the

same offense. It ·guarantees that no person shall "be subject for the same

offense to be twice put in jeopardy of life or limb[..]" U.S. Const. Amend. V.

Likewise, Section 13 of Kentucky's Constitution includes a virtually identical

provision and affords similar pr:otections as those guaranteed by the Fifth

Amendment.

      'fhe jury convicted Dungan: of third-degree rape and abuse of an adult

under the following instructions:

            Instruction No. 5
            (Rape, 'fhird-Degree) _
                                         7
              You will find the Defendant, Michael Ray Dungan,
              guilty of Rape, Third-Degree, under this Instruction if,
              and only if, you believe from the evidence beyond a
              -reasonable doubt, all of the following:
           A. That in this county, on or about November 2, 201.3,
              and before the finding of the Indictment herein, he
              engaged in sexual intercourse with [J.M.];
              AND
           B. That at the time of.such intercourse, [J.M.] was an
              individuaI with an intellectual disability.

               Instruction No. 7
             · (Abuse of an Adult)
               You will find the Defendant, Michael Ray Dungan,
               guilty of Abuse of an adult under this Instruction if,
               and only if, you believe from the evidence beyond a
               reasonable doubt, all .of the following:
           A. That in this county, on or around November 2, 2013,
               and before the finding of the Indictment herein, he
             ·knowingly sexually abused [J.M.];
               AND                        \

           B. That when he did so abuse [J.M.], she was eighte~n
               (18) years of age or older, and because of her mental
               and physical dysfunctioning, she is unable to manage
               her own resources, cany out the activity of daily living,
               or protect herself form neglect, exploitation, or a
               hazardous or abusive situation without the assistance
               of others, and who may be.in need of protective
               services .. ·

       To determine whether a violation of the constitutional double jeopardy

 provision occurred, we typically employ the Blockburger same-elements test:

 "whether the act or transaction complained of constitutes a violation of two

· distinct statutes and, if it does, if each statute requires proof of a fact the other

 does not. Put differently, is one offense included within another?"

 Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) (internal citation

 omitted) (adopting the test set forth in Blockburger v. U.S., 284 U.S. 299, 304,

 52 S.Ct. 180, 76 L.Ed. 306 (1932)). KRS 510.060 provides, in relevant part, "A

                                              8
 person is guilty of rape in the third degree when: (a) He or she engages in

 sexual intercourse with another person who is incapable of consent because he

 or she is an individual with.an intellectual disability[.]" Rape in the third

 degree is a Class D felony. KRS 510.060. With respect to the abuse of an

 adult charge, KRS 209.990.(2) provides, ''A person who kno~ingly abuses or

 neglects an adult is guilty of a Class C felony."

         Both third-degree rape and abuse of an adult require an element that the

 other does not. Third-degree rape. requires sexual intercourse, which abuse of

.· an adult does not. And abuse of an adult requires the element of knowing

 sexual abuse and neglect of a protected adult under KRS Chapter 209, as set

 forth in Instruction .7(B), which third-degree rape does not. Hence, convictions

 for both third-degree rape and abuse of an adult do not violate the Blockburger ·

 test.

                 ii.   St~tutory   double jeopardy.

         How~ver,   Dungan's convictions for both charges are also subject to

 analysis under Kentucky's codification of the Blockburger test, KRS 505.020 et

 seq. See Kiper, 399 S.W.3d at 741 (while Blockburgertest will most often be

 controlling analysis, it is not the exclusive.method for evaluating potential

 double jeopardy violation). Since Dungan did not raise the issue of a statutory

 double jeopardy violation below, we will review his unpreserved claim for

palpable error; that which affects the substantial rights of a party and results




                                            9
 in manifest injustice. RCr2 10.26. "Manifest injustice". authorizes review of

 unpreserved errors when "the error so" seriously affected the fairness, integrity,

 or public reputation of the proceeding as to be 'shocking or jurisprudentially

 intolerable."' Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015) (citation

 omitted).                              r

        KRS 505.020 allows prosecution for multiple offenses· arising from a

 single course of conduct, but ~KRS 505.020(l}(c) qoes not permit such

· prosecution if the offense is designed to prohibit a continuing course of
                                            \
 conduct and the defendant's course of conduct was uninterrupted by legal

 process, unless the law expressly provides that specific periods of such conduct

 constitute    separat~   offenses." Welborn v. Commonwealth, 157 S.W.3d 608, 612

 (Ky. 2005). This statutory.restriction ensures that "a defendant may not be

 convicted of multiple crimes when there was but one course of.,.. conduct and a   .




 single mens rea." Kiper, 399 S:W.3d at 743.

        Dungan urges that the jury was presented with only. one "act" of his

 penis being placed in or near J.M.'s crotch, and that single act was

 uninterrupted by legal process. He asserts that convicting him of rape and

 abuse of an adult is no different from convicting him of rape and sexual abuse, '

 which this Court found violated double jeopardy in Johnson v. Commonwealth,

 ~64   S.W.2d 266 (Ky. 1993). In that case, we observed that first-degree sexual

 abuse is a lesser-included offense of first-degree rape, and that the instruction



        2   Kentucky Rules of Criminal Procedure.

                                                10
for sexual abuse, couched in general terms of "sexual contact" without

differentiating the act from. the act constituting rape, permitted the jury to find

the defendant guilty twice of the same act, e.g., intercourse constituting rape

and intercourse constituting sexual contact and, therefore, sexu·al abuse. Id.

at 277.

       Here, evidence was presented that Dungan "put his thing inside J.M.,"

. "put his thing in her crotch," and "put it between her legs." Lab results from

an external genital swab performed on J.M. revealed the presence of Dungan's

semen. The jury instructions defined "sexual intercourse" as occurring "upon

any penetration, however slight." The jury convicted Dungan of third-degree
                                         '
rape, which means it found from the evidence that Dungan penetrated J.M.

The jury's guilty verdict on the sexual abuse of an adult charge reflects its

finding that Dungan engaged in general sexual abuse, which may or may not

have inclu4ed penetration, since the term "sexual abuse" was not defined in

the jury instructions. Since the instructions failed to differentiate the act of

sexual abuse from the act constituting rape, the jury was essentially permitted

to find Dungan guilty twice of the same act; ,

      With respect to whether .the act was "uninterrupted by legal process," the

record is unclear as to the exact duration of the act, but showed that it

occurred on one occas.ion on November 2, 2013 . .The Commonwealth has

attempted to parse out discrete acts of Dungan's unbroken course of conduct

toward the same victi:Q:i, but no evidence was presented of any break in the

sequence of events between Dungan penetrating J.M. and Dungan placing his

                                        11
 penis between her legs, if in fact both occurred. It ~ppears to have been a

 single course of conduct. Therefore, under KRS 505.020(l)(c), Dungan could

. not be charged with both third-degree rape and abuse of   an adult arising from
 the same course of conduct and directed at the same victim.

       The remedy for a violation of double jeopardy is to maintain th~ more

 severe conviction and vacate the lesser offense. ·Clark v. Commonwealth, 267

 S.W.3d 668, 678 (Ky. 2008). Thus, we vacate Du;ngan's conviction for third-

 degree rape (the lesser offense). His conviction for abuse of an adult stands.

 Due to our holding, and the terms of the final sentencing order, remand is

 appropriate. Pursuant to the final sentencing order, the trial court sentenced

 Dungan to 20 years' imprisonment: 5 years on third-degree rape (enhanced to

 15 years by PFOl); 10 years for incest (enhanced to 15 years by PFOl); and 10

years for. abuse of an adult (enhanced to 15 years by PFOl). ·The trial court ran

 the 15-year sentence for third-degree rape partially consecutive and partially
                    .            (
 concurrent to the 15-year sentence for incest, for a total of 2,0 years. The court

 ran the 15-year sentence for abuse of an adult concurrent with that 20-year

 sentence for a total of 20 years. The trial court'_s sentencing decision was

unquestionably premised ori Dungan's conviction and sentence for third-degree

 rape. Considering our ruling, justice requires that the trial court reconsider its

final sentencing options under the circumstances as they evolve from further

proceedings on remand.




                                         12
           · b. The Commonwealth's impeachment of J.M. was proper.

      Dungan maintains that the Commonwealth's method of impeaching J.M.

·with her prior inconsistent statements to the forensic investigator was

improper, since the Commonweaith failed to establish.the.necessary

foundation. ·At trial, Dungan objected to the admission of J.M.'s statement to

the forensic investigator on hearsay grounds. The trial court allowed the

statement to come in under KRE3 613, which Dungan argued was prejudicial.

      KRE 801A(a)(l) provides that_ "[a] statement is not excluded by the

hearsay rule, even though the declarant is available as a .witness, if the

declarant testifies at the trial or hearing and is .examined concerning the

statement, with a foundation laid as required by KRE 613, and the statement

is: (1) Inconsistent with the declarant's   te~timony[.f'.


      KRE 613(a) provides:·

               (a) Examining witness concerning prior statement.
               Before other evidence can be offered of the witness
               having made at another time a different statement, he
               must be inquired of concerning it, with the
               circum~tances of time, place, and persons present, as
              ·correctly as the examining party can present them; .
               and, if it be in writing, it must be shown to the ·
               witness, with opportunity to explain it. The court may
               allow such evidence to be introduced when it is
               impossible to comply with this rule because of the
               absence at the trial or hearing of the witness sought to
               be contradicted, and when the court finds that ·the
               impeaching party has acted in good faith.




      3   Kentucky Rules of Evidence.

                                         13
                                                                            \




       Once J.M.'s in-court testimony contradicted her statements to the

· forensic investigator, the Commonwealth asked her if she remembered her

 conversation with the inve::?tigator, which she stated she did. The

 Commonwealth played !he tape of certain questions asked by the investigator,

 and asked J.M. if she rernembered them. Then, the Commonwealth played her

 answers, and asked J.M. if she recalled answering as such. The

 Commonwealth asserts that in doing so, it laid the proper foundation for

 introducing J.M.'s prior inconsistent statements. The Commonwealth

concedes the process was difficult, and J.M. was embarrassed and

understandably confused, but asserts that it made a good faith effort to comply

with typical impeachment procedures.

       Dungan cites to Noel v. Commonwealth, 76 S.W.. 3d 923 (Ky. 2002), in

 support of his argument that strict compliance with the foundation

 requirements should have been enforced in this case. Noel involved a child

 victim who made an allegedly inconsistent statement to a family member, and

 this Court held that the family member could not testify as to that inconsistent

 statement because the child victim had not been asked whether she made the

 statement. Id. at 930. In other words, the Commonwealth in Noel failed to lay

 the foundation for impeachment using the prior inconsistent statement. Here,

· the Commonwealth established, through J.M.'s tesµmony, that she

 participated in the interview with the forensic investigator and laid the· proper

foundation for introducing her prior inconsistent· statements.




                                         14
      Admittedly, the impeachment process was difficult, as one might expect

in examining someone with an intellectual disability. Our review of the record,

however, reveals that the Commonwealth made a good faith effort to comply

with KRE 6I3 and laid a sufficient foundation to admit J.M.'s prior

inconsistent statements. We find the portions of the video that were played

were relevant to the issues at hand, and did not result' in undue preJ~dice to .

Dungan so as to require reversal.

         c. Admission of evidence of Dungan's prior sexual assault of J.M.
            was proper.

      Dungan claims the trial court abused its discretion by admitting his

I992 statement, wherein he admitted sexually abusing J.M. Before trial, the

Commonwealth gave notice of its intent to introduce evidence of the I 992

statement arid the resulting conviction. Dungan objected. The trial court

admitted the I 992 statement, but admonished the jury that the statement was
  .                                              .
only to be considered for the limited purpose of proving lack of mistake,

opportunity, GOmmon scheme or plan, or motive. The trial court prohibited the

Commonwealth from introducing evidence of Dungan's resulting conviction for

third-degree rape.during the guilt phase. Dungan now maintains that under

the KRE .403 balancing test; the probative value of the I992 statement was
 ,/




outweighed by the prejudidal effect, and therefore the trial court abused its

discretion by admitting it.
                '      .
      We review a trial court's evidentiary rulings for an abuse of discretion.

Goodyear Tire & Rubber Co. v. Thompson,. I I S.W.3d 575, 577 (Ky. 2000).      An
abuse of discretion occurs if ~he trial coµrt's ruling is "arbitrary, unreasonable,
                                        I5
unfair, or unsupported by sound legal principles." Commonwealth v. English,

993 S.W.2d 941, 945
                .
                    (l{y.
                      - 1999).
                          .


      KRE 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is

not admissible to. prove the character of a person in order to show conformity

therewith." However, such evidence is admissible if offered for another

purpose, "such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident[.]" In determining the

admissibility of KRE 404(b) evidence, the court is to focus on three issues: (1)

relevance, (2) probativeness, and (3) prejudice. Harp v. Commonwealth, 266

S.W.3d 813, 822 (Ky. 2008).

      Clearly, Dungan's 1992 statement is relevant: he admitted committing a

similar sexual ·act against the same victim. Specifically, in his statement

Dungan admitted:

            This is what h~ppened as J.M. was getting ready for
            bed she was naked and I may have touched her breast
            +back while getting her to bed. We both laid down
            together I though (sic) about doing something, .. I
            may have. rolled over and put it (penis) between her
            legs but I didn't put my penis inside of her. I rubbed
            her vagina area with my fingers and put them inside of
            her. I think I have a problem officer and I need
            counciling (sic). We were in J.M.'s bedroom when this
            occurred, on Aug. 31, 1992.

      This Court has held that "evidence of similar acts perpetrated against the

same victim are almost aiways admissible[.]" Harp, 266 S.W.3d at 822. In the

case at bar, evidence of Dungan's previous sexual assault of J.M. was relevant     1



                     .               .
to disprove his defense that the semen discovered on J.M.'s genitals resulted

from the transference of semen from his bedsheets to her labia. The statement
                                         16
also tended to prove intent, opportunity, and absence of mistake or accident.

While introduction of the statement was prejudicial to Dungan, that prejudice

was substantially outweighed by its probative value.

       Based on our review_ of the record, the Commonwealth gave proper notice
                        (

of its intent to introduce evidence of Dungan's 1992 statement, the trial court

did not abuse its discretion in admitting the evidence, and the jury was

properly admonished as to how it should consider the evidence presented.

Accordingly, no error occurred.

         · d. The trial court properly refused to· grant Dungan a directed
              verdict as to third-degree rape and incest.

       At the close of the Commonwealth's case-in-chief and at the dose of all

the evidence, Dungan moved for a directed verdict on 'third-degree rape and

incest, arguing that the Commonwealth fajled to present any evidence of

penetration. The trial court denied both motions. Dungan now claims the trial

court's ruling was erroneous.

       "On appellate review, the test of.a directed verdict is; if under the
              ..              .   .
evidence as a whole, it would be clearly unreasonable for a jury to find guilt,

·only then the defendant is entitled to a directed verdict of acquittal."

 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). In assessing the
                   (

. weight of the evidence, co'l.1:rts are required to draw all fair and reasonable

inferences from the evide.nce in favor of the Commonwealth. Id. Courts must

also be mindful that the credibility and weight to be given the testimony are

questions for the jury exclusively. Commonwealth v. Sawhill, 660        S.'W~2d     3, 5

(Ky. 1983).
                                          17
      Dungan was charged with the offense of third-degree rape, KRS 510.060,

and incest, KRS 530.020, both of which require proof of "sexual interqourse."

"Sexual intercourse occurs upon any penetration, however slight[.]" KRS

510.010(8). Circumstantial evidence can support a finding of penetration.

Jones v. Commonwealth, 833 S.W.2d 839, 8.41 (Ky. 1992).

      J.M. testified that Dungan put his penis in her "crotch,'' and she told the

forensic investigator the same thing. The fact that Dungan's semen was only

found on.J.M.'s external genitals, and not inside her vagina, does not render

the jury's finding of penetration unreasonable. As the Commonwealth points

out, J.M.'s statement that Dungan "put it between her legs" supports a

reasonable inference of penetration. J.M.'s testimony, combined with the

discovery of Dungan's semen on her genitals more than supports an inference

of penetration. Therefore, the trial court properly denied Duhgan's motions for

directed verdict. Moreover, because Dungan does not dispute that J_.M. is his·

stepdaughter, the trial court also properly refused to grant a directed verdict on

the incest charge.

                                 III.   Conclusion.

      We vacate Dungan's conviction for third-degree rape, but affirm on all

other grounds. This case is hereby remanded to the trial court to resentence

Dungan considering our ruling.

      All sitting. All concur.




                                        18
 COUNSEL FOR APPELLANT:

 Emily Holt Rhorer
 Assistant Public Advocate
 Department of Public Advocacy


 COUNSEL FOR APPELLEE:

· Andy .Beshear
  Attorney General of Kentucky

 Megan K. George
 Assistant Attorney General
 Office of the Attomey Gep.eral




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