         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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                                                   RENDERED: MARCH 17, 2016
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JAMES T. HINMAN II
                               2014-SC-000474-MR
                                                        a/r
                                                       --                   to w 1 lc 1.3Auke,‘,",Asilc.
                                                                        APPELLANT


                 ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V.                  HONORABLE ANDREW C. SELF, JUDGE
                             NO. 13-CR-00245


COMMONWEALTH OF KENTUCKY                                                 APPELLEE


                   MEMORANDUM OPINION OF THE COURT

       AFFIRMING IN PART, REVERSING IN PART AND REMANDING

      Appellant, James Hinman, appeals from a judgment of the Christian

Circuit Court convicting him of second-degree assault and first-degree rape.

He was sentenced to imprisonment for 10 years for assault and 40 years for

rape, to be served concurrently. On appeal to this Court, Appellant argues

that: 1) he was denied a unanimous verdict on the first-degree rape guilt

determination; 2) he was denied a unanimous verdict on the first-degree rape

sentence determination; 3) he was denied a unanimous verdict on the second-

degree assault guilt determination; 4) the trial court erred in failing to grant a

directed verdict on the second-degree assault charge; and 5) hearsay and

bolstering testimony were improperly admitted into evidence.
       For the reasons stated below, we reverse the judgment as to the first-

degree rape conviction and remand for a new trial on that charge; and we

affirm the conviction and sentence imposed for second-degree assault.


                   I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellant and his wife, Lily,' married in the fall of 2012. Almost

immediately, the relationship began to deteriorate. According to Lily's trial

testimony, Appellant became angry on March 12, 2013 after she rejected his

sexual advances. He warned Lily that he would teach her to never to reject him

again and, for the next two hours, he repeatedly struck her about the face and

head with his fists and kicked her legs and torso. At one point, he jumped onto

her chest with all his weight. He then removed her clothing, commented on the

battered condition of her body, and resumed kicking and hitting her until she

passed out. He roused her back to consciousness by shaking her and resumed

beating her.

       After the attack, according to Lily's testimony, Appellant demanded her

assurance that she would not again reject his sexual advances. He then forced

Lily to wear a dress belonging to her daughter. 2 He began fondling her and

calling her by her daughter's name as he looked at a photograph of her




       'Lily is a pseudonym. Ordinarily, we have used pseudonyms only to protect the
anonymity of juveniles. Appellant's wife is not a juvenile but in his brief to this Court,
he used this pseudonym and the Commonwealth continued to do so in its brief. We
continue the use of this pseudonym to be consistent with the parties' arguments.
      2 Lily's daughter lived with the daughter's father. Lily had two sons living with
her and Appellant.

                                            2
 daughter. He then initiated vaginal intercourse to which Lily acceded out of

 fear that she would again be beaten, or even killed.

         The next evening, March 13, Appellant told Lily he would not physically

 hurt her again but that he was not finished punishing her. He took Lily,

 dressed only in pajamas, outside in freezing weather where he placed a dog

 collar around her neck and ordered her into the doghouse. He left her there for

 about an hour before he returned, allowing her into the residence only after

 she agreed to his demand to do everything her "master" told her to do. 3 When

back in the house, Appellant forced her to lick his feet and fellate him. After

that, Appellant forced Lily to' commit acts of anal sodomy on him, and then he

subjected her to vaginal and oral intercourse repeatedly through the night.

         The next morning, March 14, Lily was unable to walk. She was dizzy,

sore, and bleeding from her vagina. She testified that later that evening,

Appellant again made sexual advances and they had vaginal intercourse. She

testified that she had no desire for intercourse, but she did not refuse him

because she "wanted to stay alive" and escape with her children when she

could.

         On the morning of March 15, Lily devised a plan to get away from the

house with her children. After escaping, she reported the preceding events to

law enforcement authorities and had a CT scan and a rape examination

performed. As a result of the assault, she sustained a concussion and severe



       3 Lily testified that she could have escaped when she was left outside but she
did not do so out of fear for her sons who remained in the house with Appellant.

                                           3
bruising about her head and body. She suffered from headaches, dizziness,

and pain for several weeks.

       Appellant was indicted for first-degree rape, first-degree sodomy, second-

degree assault, first-degree unlawful imprisonment, and first-degree criminal

abuse. The jury acquitted Appellant of sodomy, unlawful imprisonment, and

criminal abuse; it found him guilty of first-degree rape and second-degree

assault. This appeal followed.


                                    II. ANALYSIS

A. UNANIMOUS VERDICT ISSUES

1. The Jury Instruction for First-Degree Rape Violated Appellant's Right
   to a Unanimous Verdict.

      Citing Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013), Appellant

argues that his right to a unanimous jury verdict was violated because the

phrasing of the jury instruction allowed the jury to convict him of first-degree

rape, even though the jurors may not have unanimously agreed upon the same

act of rape. A unanimous verdict is required under Section 7 of the Kentucky

Constitution. Id. at 448 (Unanimous verdict means that to convict a defendant

of a specific criminal act, all twelve jurors must agree on the specific criminal

act committed by defendant). The Commonwealth and Appellant both

acknowledge that, although Appellant was charged with a single act of rape by

forcible compulsion against Lily, the evidence at trial was sufficient to prove

that Appellant raped Lily on any of at least three occasions over the March 12-

15 time frame.



                                         4
        Because the issue was not preserved at trial, Appellant seeks palpable

 error review under RCr 10.26. 4 The Commonwealth concedes the instruction is

 erroneous under our prevailing case law but it asserts that the error was not

 palpable. The jury instruction relevant to this issue stated:

        You will find the Defendant guilty of Rape, First 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 between March 12-15, 2013 and
          before the finding of the Indictment herein, he engaged in
          sexual intercourse with [Lily].

       AND

       B. That he did so by forcible compulsion.

       Upon reading the instruction, it is immediately apparent that the jury

was authorized to convict Appellant of only one rape, but individual jurors

could base their finding of guilt on any of several different criminal acts

occurring "between March 12-15." In Johnson, the defendant was convicted of

a single act of first-degree criminal abuse based on evidence that the victim

suffered from two different acts of criminal abuse inflicted at different times.

The lack of specificity in the jury instruction created'the possibility that some

jurors found the defendant guilty based upon one act of abuse, while other

jurors found the defendant guilty based upon a different act. Id. at 448. We




       4 Per RCr 10.26, "[a] palpable error which affects the substantial rights of a
party may be considered by the court on motion for a new trial or by an appellate
court on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice has
resulted from the error."

                                            5
 held that "a general jury verdict based on an instruction including two or more

 separate instances of a criminal offense, whether explicitly stated in the

 instruction or based on the proof—violates the requirement of a unanimous

 verdict." Id. at 449. More recently, in Ruiz v. Commonwealth, we noted that

the "clear import of Johnson is that a verdict is not unanimous unless all of the

jurors based their conviction of the defendant on the same criminal act; and

that the instructions and verdict forms must be couched in language that

eliminates any ambiguity regarding the jury's consensus." 471 S.W.3d 675,

678 (Ky. 2015). 5

       The rape instruction in the instant case suffers the same defect. The

evidence presented at least three instances in the March 12-15 time span that

would support a conviction for first-degree rape. The jury instruction did not

direct the jury to consider any specific instance of alleged rape, and it did not

provide a verdict form that would clearly indicate unanimity based upon the

same criminal act. In these circumstances, as in Johnson and Ruiz, the

unanimous agreement of the jury is not assured. The ambiguity in the

instruction and the associated verdict form results in a violation of Appellant's

right to a unanimous verdict.




       5 In Ruiz, we also suggested that the General Assembly could enact a
continuing course of conduct crime to permit the Commonwealth to prosecute serial
offenders when the evidence does not readily distinguish one criminal act from
another. Such a statute would not be necessary here, however, because the evidence
clearly distinguished the different acts of rape.

                                         6
        It is worth noting that the problem in this case could have been easily

 avoided. Unlike cases in which the victims are very young children unable to

 distinctly identify specific instances of abuse, Lily's clear and distinct testimony

 articulated each occasion on which Appellant raped her. Drafting the proper

jury instruction would have been very simple, and need only have singled out

 one of the three occasions as the corpus delecti of the rape charge, and then

 phrased the jury instruction so that each of the jurors was focused on that

 single episode when they reached their verdict.

       The Commonwealth contends that reversal is not justified because

Appellant failed to bring this error to the attention of the trial court, and if he

had done so, the deficiency in the instruction could have been cured before the

case was submitted to the jury. 6 We addressed the same argument in Ruiz,

where we relied upon Johnson to guide our determination that the violation of a

defendant's right to a unanimous verdict is jurisprudentially intolerable as a

fundamental error touching upon the right to due process. Ruiz, 471 S.W.3d

at 679 (citing Johnson, 405 S.W.3d at 457). Finding no distinction in this case

for a ruling otherwise, we find the error here to be palpable. Accordingly, we

reverse the judgment as to Appellant's first-degree rape conviction and remand

the matter for a new trial on the rape charge. We note that upon remand,

unless the evidence has changed, Appellant would be subject to prosecution




       6 We also note that the deficiency could be cured by a verdict form that specified
jury unanimity on a specific criminal event.

                                            7
 under a supplemental indictment charging him with any or all of the three

 instances of rape alleged to have occurred over the March 12-15 time span.

       Appellant also seeks palpable error review of another unpreserved claim

related to the first-degree rape conviction. Rape by forcible compulsion is a

class B felony that can be elevated to a class A felony if the victim suffered a

serious physical injury. KRS 510.040(2). The jury was instructed on the

serious physical injury element by way of a special interrogatory instruction

which it answered in the affirmative. Appellant contends that the interrogatory

on serious physical injury suffered from the same ambiguity because it, too,

failed to link the resulting serious physical injury to a specific act of rape

during the March 12-15 time span. Having reversed on other grounds for a

new trial on the rape charge, we need not address the particulars of this issue.

On remand, the jury instructions should relate the element of serious physical

injury to the specific act of rape during which it was inflicted.

2. The Jury Instruction for Second-Degree Assault Did Not Violate
   Appellant's Right to a Unanimous Verdict.

      Appellant next contends that the jury instruction for second-degree

assault violated his right to a unanimous verdict. This issue was also

unpreserved, and so we review it for palpable error under RCr 10.26. Based

upon KRS 508.020(1)(a) and (b), the jury instructions in this case authorized

Appellant's conviction for second-degree assault on two different factual

predicates: the jury could convict Appellant if it believed that he either

"intentionally inflicted a serious physical injury upon [Lily] by using his hands

and feet to strike, kick, choke and/or jump on her;" or "intentionally caused

                                         8
 physical injury to [Lily] by means of a dangerous instrument." 7 Nothing in the

 instructions required all jurors to agree on either alternative, and it is

 impossible to determine from the verdict form if all jurors agreed on the same

 factual basis. However, as Appellant points out, the jury heard no evidence

about the use of a dangerous instrument as set out in the instruction's second

alternative theory of second-degree assault.

       Our case law provides support for Appellant's argument.        See Davis v.

Commonwealth, 967 S.W.2d 574, 582 (Ky. 1998) (citing Hayes v.

Commonwealth, 625 S.W.2d 583 (Ky. 1981)) ("[I]f the evidence would support a

conviction under only one of two alternative theories, the requirement of

unanimity is violated."). However, our decision in Travis v. Commonwealth,

327 S.W.3d 456 (Ky. 2010) defeats his argument.        Travis holds that when

"there is no reasonable possibility that the jury actually relied upon the

erroneous theory [of guilt}—in particular where there is no evidence of the

theory that could mislead the jury—then there is no unanimity problem."          Id. at

463.

       In the instant case, there was no evidence to support the theory that

Appellant used a dangerous instrument. Travis thus compels our conclusion

that there is no reasonable probability that the jury would have relied on this

theory when it convicted Appellant of assault in the second degree. No



       7 Subsection (c) of KRS 508.020(1) permits a second-degree assault conviction
when a defendant wantonly causes serious physical injury to another person by
means of a deadly weapon or a dangerous instrument. That theory of second-degree
assault was not presented in this case.

                                          9
 violation of Appellant's right to a unanimous verdict occurred. Consequently,

palpable error cannot be found upon review of the second-degree assault

instruction.


B. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON
     RAPE AND ASSAULT CHARGES.

       Causing serious physical injury to Lily was an essential element of the

Commonwealth's case against Appellant for first-degree rape (as a class A

felony) and for second-degree assault. Following the close of the

Commonwealth's case, Appellant moved for a directed verdict on both the first-

degree rape, as a class A felony, and on the second-degree assault charge on

the basis that the Commonwealth did not prove that Lily sustained a serious

physical injury as that term is defined in KRS 500.080(15). A defendant is

entitled to a directed verdict "if under the evidence as a whole, it would be

clearly unreasonable for a jury to find guilt." Commonwealth v. Benham, 816

S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3

(Ky. 1983)).

      KRS 500.080(15) defines "serious physical injury" as a "physical injury

which creates a substantial risk of death, or which causes serious and

prolonged disfigurement, prolonged impairment of health, or prolonged loss or

impairment of the function of any bodily organ." Appellant contrasts Lily's

physical injury with the injuries sustained by the victims in Arnold v.

Commonwealth, 192 S.W.3d 420 (Ky. 2006), and Parson v. Commonwealth, 144




                                        10
 S.W.3d 775 (Ky. 2004), to support his assertion that the Commonwealth did

 not prove that Lily suffered serious physical injury.

       In Arnold, the victim was hit in the head with a hammer and suffered a

concussion and loss of blood. For two weeks the victim was "substantially

incapacitated." Periodic vertigo and/or dizziness continued for fifteen months

after the attack and her doctor testified that the condition was likely

permanent. The attack left a permanent dent in the victim's head over which

hair no longer grew properly. While able to return to work, movements were

adjusted to avoid triggering the vertigo and dizziness. This evidence was found

sufficient to induce a reasonable juror to believe beyond a reasonable doubt

that the victim suffered serious physical injury. 192 S.W.3d at 427.

       In Parson, the victim initially suffered multiple contusions and strains, a

laceration of the elbow which was sutured, and a cervical strain from a

collision. While in physical therapy due to the injuries, the victim was

diagnosed with headaches, cervical neck pain, lack of range of cervical motion

caused by muscle spasms, upper thoracic pain, and numbness of the right

arm; treatment continued about four months. The victim was subsequently

referred to a pain management specialist. Treatment by the specialist for

headaches and neck pain began about three months prior to trial and

continued up to trial. At trial, the victim still suffered from neck pain; the

numbness in her arms had improved and her headaches had dramatically

improved. Anti-inflammatory medications and muscle relaxants were still

being taken and referral for additional physical therapy was being considered.

                                         11
The victim did not return to public employment in part because of the pain.

While the defendant viewed the victim as suffering only substantial physical

pain, this Court determined otherwise. We held that prolonged pain is a

prolonged impairment of health and thus constitutes a serious physical injury,

and that a jury could reasonably believe that the victim's ongoing suffering

from the effects of her injuries constituted a "prolonged" impairment of health.

144 S.W.3d at 787-788.

      Appellant notes that Lily had a concussion but was not admitted to the

hospital, and that she testified that she was not in imminent danger of dying

from her injuries. She testified that her bruises faded after a few weeks and

that her dizziness and pain lasted a few weeks. Appellant argues that none of

Lily's injuries amounted to serious physical injury because there was no

substantial risk of death, no serious or prolonged disfigurement, no prolonged

impairment of health, and no prolonged loss or impairment of the function of

any bodily organ.

      Lily clearly suffered an "impairment of health" in the form of a

concussion, dizziness, headaches, and pain — all conditions similar to those

suffered by the victims in Arnold and Parson. The question is whether Lily's

condition constituted a "prolonged" impairment of health. Although the victims

in Arnold and Parson suffered for a longer time than Lily, we have not

prescribed the minimum time required for qualifying a painful condition as

"prolonged," and we do not purport to do so here. As in Arnold and Parson, we

conclude that the evidence regarding Lily's injuries and associated outcomes

                                       12
 was sufficient to induce a reasonable juror to believe beyond a reasonable

 doubt that the victim suffered a serious physical injury as that term is defined

 in the penal code. Appellant was not entitled to a directed verdict on the rape

and assault charges.

C. THE EVIDENTIARY ISSUES OF HEARSAY AND BOLSTERING DO NOT
   WARRANT RELIEF.

       Lily's stepmother, Peggy Vass, testified that she "was just shocked at the

way [Lily] looked" immediately after escaping from Appellant. Vass described

Lily as "skin and bones, she was pale, eyes sunken, black eyes, bruises on her

collar bone and red marks around her neck." She added, "I knew what had

happened without [Lily] even saying." Vass also testified that Lily told her that

Appellant "was after [Lily's daughter]." Trial counsel objected only to this

statement on the basis of hearsay, and his objection was sustained.

      On appeal, Appellant complains that Vass's testimony was replete with

improper hearsay and bolstering. Because this issue was not preserved at

trial, Appellant seeks review under RCr 10.26.

      Upon review of the brief hearsay testimony to which Appellant objected

at trial, we are convinced that a single brief statement was harmless. It was

also information that was presented directly through Lily's testimony and was

subject to cross-examination. Appellant identifies no other testimony to be

scrutinized as improper hearsay. As to Appellant's unpreserved complaint that

Vass's testimony improperly bolstered Lily's testimony, we simply disagree.

The fact that Vass's observation tended to corroborate Lily's complaint about



                                        13
the apparently vicious attack does not make it objectionable. Appellant is

entitled to no relief on this issue.


                                HI.      CONCLUSION

      For the foregoing reasons, the judgment of the Christian Circuit Court as

to Appellant's first-degree rape conviction is reversed and the matter is

remanded to the trial court for further proceedings consistent with this

opinion. Appellant's conviction for second-degree assault is affirmed.

      All sitting. Minton, C.J.; Hughes, Noble, and Venters, JJ., concur.

Cunningham, J., concurs in part and dissents in part by separate opinion in

which Keller, J., joins. Wright, J., concurs in part and dissents in part by

separate opinion in which Cunningham and Keller, JJ., join.

      CUNNINGHAM, J., CONCURRING IN PART AND DISSENTING IN PART:

With profound respect and affection for members of the Majority, I continue to

be mystified how we continue to reverse serious cases over the issue of

unanimity regarding jury instructions.

      However, I will spare the reader of the rewriting of my previous

lamentations as to how over the past 10 years we have created a procedural

monster with our hyper-technical and unnecessary interpretation of our

unanimous verdict requirement.

      In this dissent, Igo directly to the palpable error analysis.

      We continue to allow our trial judges to be ambushed by such decisions

as this one when we so lightly deem palpable error when the mistake has not

been preserved. We are watering down our palpable error standard with

                                         14
holdings such as this to the point that it behooves the defense lawyer not to

object on jury instructions and just allow the trial court to walk—unwarned-

onto the unanimity land, mine.

       In our decision here today, however, we create a unique and bizarre

result which carries the potential of making appellate counsel for the Appellant

to look incompetent and this court to look foolish. It sets in motion a swirl of

procedural activity which will result in us chasing our own proverbial tail.

      It's not hard to understand why the trial counsel did not object to either

the one count of rape against his client, nor the instructions given pursuant to

the charge. Over a three day period; the Appellant subjected his victim to such

a harrowing experience as to constitute a marathon of torture. As the Majority

recounts, he raped his wife on three and distinct separate days. The evidence

was overwhelming that he was guilty of three counts of rape. But, the

prosecution, in displaying rare restraint, charged him with only one count.

Instead of being subject to three counts of rape carrying twenty years to life on

each, the Appellant was subjected to one.

      What is difficult to understand is why Appellant's counsel raises this

issue on appeal. With our reversal here today on that issue, this charge will be

returned to the trial court to try over. However, the vigilant and industrious

prosecutor is going to salute the rationale of the Majority and move to dismiss

the troublesome charge. The case will be re-submitted to the grand jury and

one count of rape—with the alacrity of an amoeba—divide into three. This

Appellant will return to court defending three separate counts instead of one.

                                       15
         It will be a most curious phone conversation between the lawyer for the

Appellant and the Appellant when this case is rendered. "There is good news

and bad news," the lawyer will begin, "the good news is we won the appeal, but

the bad news is now you are going to court on three counts of rape instead of

one."

         That's not all. Rest assured this case will return to the appellate ladder

when the Appellant understandably claims ineffective assistance of counsel at

the appellate level. Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010). It

takes creative powers to appeal a case and end up getting your client more time

because of the appeal.

         Yet, this court has set all this in motion by holding that the Appellant

was subjected to manifest injustice for being convicted on one count of rape

instead of three.

         Therefore, I respectfully, but vigorously dissent, as to the unanimity

issue.

         Keller, J., joins.

         WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: While I

concur with the majority as to the other issues, I respectfully dissent from its

holding that the jury instructions on first-degree rape amount to palpable

error, as they denied Appellant a unanimous verdict. The majority accepts

Appellant's argument that the Commonwealth presented a case under which

he could have been convicted of three counts of first-degree rape for his actions

between March 12 and March 15, 2013. The Commonwealth chose to only

                                          16
 indict him on one count of rape in the first degree and identified it as occurring

during the four-day period.

       A jury verdict must be unanimous and Appellant contends that jurors

could have been considering different alleged rapes when they reached a

verdict finding him guilty of rape in the first degree. His position is that, even

though the jury found him guilty of all elements of first-degree rape, if it was

possible for one juror to base the conviction on one rape and another juror to

base the conviction on a different rape, then the verdict was not unanimous.

The Commonwealth concedes that "the instruction given in this case appears

to be erroneous under this Court's case law." I disagree.

      The Commonwealth charged Appellant with first-degree rape based on

Appellant's wife refusing his sexual advances on the night of March 12, 2013.

After Lily's refusal, Appellant attacked her—hitting, biting, jumping on her

chest with both feet, and kicking Lily for approximately two hours. As a result

of this attack, she suffered a concussion, bite marks, bruises, and vaginal

bleeding. He only stopped his assault when Lily assured him that she would

never refuse him again.

      Appellant then left the room and returned with a dress that belonged to

Lily's twelve-year-old daughter and had Lily put it on. Appellant began groping

her body and calling Lily by her daughter's name, causing Lily to become

startled and pull back. When Appellant asked Lily if there was a problem, Lily

immediately assured him that there was not. Appellant, however, indicated

that there was a problem, namely, that he could see Lily's face instead of her

                                        17
 daughter's. Appellant turned off the lights and initiated sex with Lily. He

 continued to call her by her daughter's name and even pulled up a picture of

 Lily's daughter on his cell phone and laid it on Lily's chest. Whenever the

 picture would fade, Appellant would say "don't close your eyes, look at daddy,"

 and tap the phone to bring the picture back up. He continued to have sex with

Lily while commenting on the woman her daughter had become. Lily testified

that the next morning, it was as if a switch had been flipped and he acted as if

everything were normal.

       During its opening statement, the Commonwealth told the jury that there

were other times during the course of the four days covered by the indictment

when Appellant had sex with Lily. However, the Commonwealth indicated that

Lily just gave in to Appellant's advances without any objection because she was

scared and didn't want to be beaten anymore. The Commonwealth then made

the admission that the other sexual encounters would be considered

consensual under the law because she went along with them. 8 This was a

misstatement of the law, but was binding upon the Commonwealth. We have
                          ,




held: "[jury] instructions must be considered as a whole, taking into account

the evidence and closing argument of counsel." Epperson v. Commonwealth,

197 S.W.3d 46, 60 (Ky. 2006). If closing arguments should be taken into




       8 I note that it was within the Commonwealth's discretion to choose which
crimes to prosecute. Hoskins v. Maricle, 150 S.W.3d 1, 20 (Ky. 2004); see also Wayte
v. United States, 470 U.S. 598, 607 (1985). Obviously, the Commonwealth mistakenly
believed could only charge Appellant with one count of rape and chose to prosecute
him based on the events on the night of March 12.

                                         18
account, opening statements should as well. The Commonwealth's

misstatement of the law permeated the entire trial: from opening statement to

jury instructions, and ultimately, to the jury's verdict.

      The fact that the other sexual encounters were consensual under the law

was conclusively established by the Commonwealth's admission. As set out in

CR 36.02: "[a]ny matter admitted under Rule 36 is conclusively established

unless the court on motion permits withdrawal or amendment of the

admission." Although CR 36.02 is referring to admissions made pursuant to a

pretrial request for admissions, an admission made during trial would have at

least as much impact. The Commonwealth never attempted to amend its

admission. The court never corrected the misstatement of law. And Appellant,

who benefited from a reduction in the possible number of rape charges against

him, relied upon the admission.

      Appellant's only argument in closing concerning the rape charge was that

it was a matter of "he said/she said." Appellant urged the jury to believe his

statement to the police that his wife did not refuse him sexually as opposed to

her testimony that she did refuse him on the night of March 12, 2013. His

defense was based entirely on his assertion that his wife never refused his

sexual advances. He obviously knew the Commonwealth had made an

admission and relied upon that in his closing argument.

      Since the Commonwealth incorrectly admitted that the sexual

encounters, other than the night of March 12, 2013, and the acts of sodomy on

the night of March 13, 2013, were consensual, that fact was conclusively

                                         19
 established. Therefore, the remaining sexual encounters—those occurring

 times other than the night of March 12—could not be considered rape under

 the case presented by the Commonwealth and the jury's verdict must,

 therefore, have resulted only from the sexual encounter occurring on that

 night.

          Appellant also raises the issue of whether the victim suffered a serious

physical injury as a part of first-degree rape. Only one physical assault

occurred. That assault took place when Lily refused Appellant's sexual

advances on the night of March 12, 2013, and he attacked and raped her.

Appellant admitted the domestic assault and only argued that it should be

fourth-degree assault rather than second-degree assault. I reiterate that,

according to Lily's testimony, Appellant attacked her—hitting, biting, jumping

on her chest with both feet, and kicking Lily for approximately two hours. As a

result of this attack, she suffered a concussion, bite marks, bruises, and

vaginal bleeding. The jury's determination that the victim received serious

physical injuries can only be connected to the assault and rape on the night of

March 12, 2013. Therefore, the jury's verdict was clearly unanimous.

      Cunningham and Keller, JJ., join.



COUNSEL FOR APPELLANT:

Julia Karol Pearson
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:


                                          20
Andy Beshear
Attorney General of Kentucky
Office of the Attorney General

Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General




                                 21
