                                                      RENDERED : NOVEMBER 22, 2006
                                                                  TO BE PUBLISHED

                 'Sixlrrmo 490urf of
                                   2005-SC-000750-MR



CLARENCE ROBINSON                                                           APPELLANT


                       APPEAL FROM LINCOLN CIRCUIT COURT
V.                       HONORABLE DAVID A. TAPP, JUDGE
                                  05-CR-00033


COMMONWEALTH OF KENTUCKY                                                      APPELLEE



                  OPINION OF THE COURT BY JUSTICE McANULTY

            AFFIRMIN G IN PART, REVERSING AND REMANDING IN PART


       A Lincoln Circuit Court jury convicted Clarence Robinson of three counts of

second-degree rape, three counts of third-degree rape and one count of first-degree

rape. Robinson committed all the offenses against S.M .H ., whom Robinson married in

Knox County, Tennessee when Robinson was 37 years old and when S.M.H. had just

turned 14 years old and was six months pregnant with his child at the time of the

marriage . In accordance with the jury's recommendation, the trial court sentenced

Robinson to a total of 61 years in prison (10 years on each count of second-degree

rape ; five years on one count and three years on two counts of third-degree rape ; and

20 years on the single count of first-degree rape to run consecutively) . Thus, he

appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) .

       Robinson presents two issues for our review. First, Robinson contends that the
trial court erred in denying his request that the jury be instructed under KRS 510 .035

that no offense is committed if the parties are married to each other, regardless of the

person's age solely because the other person is less than 16 years old . Second,

Robinson argues that the trial court erred in directing a verdict as to the charge of first-

degree rape as there was no evidence of forcible compulsion .

         Our holding in this case is three-part. (1) We conclude that the trial court erred

in refusing to instruct the jury under KRS 510.035 because the evidence was

undisputed that Robinson and S .M .H. were married when S.M.H. was 14 years old .

Thus, we reverse and remand as to the judgment of conviction for the charges of third-

degree rape. (2) Because the parties were not married, however, until shortly after

S .M.H.'s 14' birthday, we affirm the judgment of conviction on the three counts of

second-degree rape as Robinson was not entitled to an instruction under KRS 510.035

for the time period preceding the marriage . (3) And we affirm the judgment of

conviction on the single count of first-degree rape because under the evidence as a

whole, it was not clearly unreasonable for a jury to find guilt.

                I. Facts Underlying the Convictions and Defense Trial Motions

         The Commonwealth presented only two witnesses at Robinson's trial, S.M.H .

and Detective Van Wright, with whom Robinson had a conversation about his marriage

to S .M.H.

         S.M .H . testified that she, her mother, and her siblings have lived in Robinson's

home since S.M.H. was eight or nine years old . S.M .H .'s date of birth is February 15,

1986 .

         Robinson first had sexual intercourse with S .M.H. in October of 1998 when

S.M .H. was 12 years old . On this occasion, Robinson picked       up S.M.H . from a choral
program at her middle school (where S .M.H. was in seventh grade). Instead of driving

S .M.H. straight home, however, Robinson took S .M.H . off on a country road and had

sexual intercourse with her in his vehicle. After that, Robinson had sexual intercourse

with S.M.H. three to four times a week in his vehicle.

        In the late summer of 1999, S.M.H. conceived her first child with Robinson. At

that point, S .M.H. was 13 years old. Six months later, on Saturday, March 18, 2000,

S .M.H .'s mother, Robinson's mother, and Robinson took S .M.H . to Knox County,

Tennessee . S-.M .H .'s mother altered her birth certificate to appear that S .M .H . was 16

years old by changing her date of birth from February 15, 1986, to February 15, 1984 .

On the application for the marriage license, S .M.H. represented that she was 16 years

old. She testified that she filled out the application as directed by the adults and did so

because she thought that they would leave her in Tennessee if she did not do as

instructed .

       The county clerk issued a Tennessee marriage license, and Robinson and

S.M .H . were married in a church by a minister. They did not have a honeymoon and

did not tell anyone they were married. Their living arrangements continued as they had

been before the marriage -- S .M.H., her siblings and her mother remained in

Robinson's home . S.M.H. had a separate room in the house and did not take

Robinson's last name, although she admits that she did use his last name on hospital

records when she had her children .

       S.M .H . gave birth to her first child, J .A.R., on June 9, 2000, when S.M.H. was 14

years old . No father is listed on J.A.R.'s birth certificate, but Robinson stipulated that

DNA test results confirm that he is J.A.R.'s biological father.

       After J .A .R. was born, Robinson started coming in S.M.H .'s room to have sexual
intercourse with her and would come in her room every night for that purpose.

        S .M .H . gave birth to her second child, A.J.R., on July 28, 2002, when S.M .H . was

16 years old . No father is listed on A.J .R.'s birth certificate, but Robinson stipulated

that DNA test results confirm that he is A.J .R.'s biological father.

        After A.J .R. was born, Robinson continued to have sexual intercourse with

S .M.H. He would threaten her and members of her family . If she would tell him "No,"

he would push her down until she gave in to him .

        S .M.H. gave birth to her third child, C.M.R., on October 18, 2003, when S .M.H .

was 17 years old . No father is listed on C.M.R.'s birth certificate, but Robinson

stipulated that DNA test results confirm that he is C.M.R.'s biological father.

        S.M.H . obtained her driver's license when she was 17. Once she did, she drove

her children to their doctor's appointments at the health clinic . While there, she

requested birth control shots . The last time Robinson had sexual intercourse with

S .M .H . was in November of 2004.

       On January   6,   2005, S.M .H. finally confided in social services after her children

were removed from her home that Robinson had been having sexual intercourse with

her since she was 12 years old. She stated the following on a domestic violence

petition/motion :

              When I was 12 years old, Clarence forced himself on me and
              proceeded to have sexual intercourse with me, unwillingly, and has
              done so for the past six years . Throughout this time, I have also
              given birth to three children who belong to him. I am scared that he
              will harm my children, my siblings, and me . I feel this way because
              he said if I ever told anyone that I would regret it.

       In connection with the domestic violence order, Detective Van Wright spoke with

Robinson in the judge's chambers in the Lincoln County Judicial Center. Detective
Wright testified that Robinson told him that he and S.M.H. had gone to Tennessee to

get married because that is what S .M .H . wanted.

        Detective Wright also spoke with S.M .H .'s mother, Lisa Robinson, regarding

S .M.H.'s allegations . Lisa Robinson stated that S .M.H. and Robinson were married

because they loved each other, yet Lisa Robinson stated that she had had sexual

intercourse with Robinson since he and her daughter had been married . (Lisa

Robinson was indicted and tried jointly with Robinson for three counts of complicity to

commit second-degree rape, three counts of complicity to commit third-degree rape,

and one count of complicity to commit first-degree rape.)

       At the close of the Commonwealth's case-in-chief, Robinson made a motion for

a directed verdict of acquittal . He renewed his motion once he announced that he

would not put on any proof. He also requested that the jury be instructed under KRS

510.035.

       The trial court, in response, denied his motion for a directed verdict and his

request for an instruction under KRS 510.035 . As to KRS 510.035, the trial court held

that a valid marriage was a prerequisite to the defense under KRS 510.035 and

Robinson's marriage to S.M.H. was invalid for three reasons.

       First, the trial court concluded that the marriage in Tennessee was in violation of

at least three Tennessee statutes : (a) the county clerk did not wait the requisite three

days under T.C.A. § 36-3-104(b)(1) before issuing the license; (b) under T.C.A. § 36-3

105(a), it is unlawful for a county clerk to issue a marriage license if one of the

contracting parties is under the age of 16; and (c) T.C.A. § 36-3-106(a) requires the

consent of the parent or guardian when either applicant is between the age of 16 and

18, yet the trial court found no consent in this case.
       Second, the trial court concluded that the marriage was in violation of KRS

402 .020 . KRS 402.020(1)(f) states that a marriage is prohibited and void when at the

time of the marriage, either person is under the age of 16, unless the female is

pregnant, in which case permission to marry must be granted by the district court upon

application .

       Third, the trial court considered KRS 402.040, which states : "[i]f any resident of

this state marries in another state, the marriage shall be valid here if valid in the state

where solemnized, unless the marriage is against Kentucky public policy." The trial

court reasoned that the state of Kentucky has a public policy of protecting those of

tender years who wish to marry and that public policy is not furthered by permitting

individuals to use marriage as a defense to avoid what would otherwise be criminal

sexual contact .

         11. First Issue: Did the trial court err in refusing to instruct the jury under
                                       KRS 510.035?

       Robinson's marriage to S .M.H. was voidable, not void. Thus, we conclude that

the trial court erred in refusing to instruct the jury under KRS 510.035 for that time

period when the parties were married .

       While the trial court's analysis under KRS 402 .040 seems just under the

circumstances of this case, we cannot agree that the legislature has declared that the

marriage of a female under the age of 16 is against the public policy of Kentucky. We

reach this conclusion after considering and harmonizing the language of five Kentucky

statutes : KRS 402 .040, KRS 402.010, KRS 402 .020, KRS 402.030, and KRS 510 .035 .

       Because the parties married in Tennessee, the trial court properly considered

KRS 402 .040 . KRS 402 .040(1), as referenced above, announces the general rule that
an out-of-state marriage shall be valid in Kentucky if valid in the state where solemnized

unless the marriage is against Kentucky public policy . KRS 402 .040(2) affirms that

same-sex marriages are against Kentucky public policy .

         To determine if an underage marriage is against Kentucky public policy, we turn

to KRS 402.010, KRS 402 .020 and KRS 402 .030 . See Mangrum v. Mangrum, 310 Ky.

226, 220 S.W .2d 406, 407-408 (Ky. 1949) (construing KRS 402.010, KRS 402.020 and

KRS 402 .030 in connection with one another and with other statutes and holding that

underage marriages are not void, but merely voidable); Holbert v. West, 730 F.Supp.

50, 53 (E.D. Ky. 1990) (relying on the holding in Mangrum and concluding that under

Kentucky law, minor's marriage without parents' consent is merely voidable rather than

void).

         KRS 402.010 expressly declares void incestuous marriages.

         KRS 402.020 is as follows:

               (1) Marriage is prohibited and void :

                (f) 1 . Except as provided in subparagraph 3. of this paragraph,
                    when at the time of the marriage, the person is under sixteen
                    (16) years of age ;

                      3. In case of pregnancy the male and female, or either of
                  them, specified in subparagraph 1 . or 2. of this paragraph, may
                  apply to a District Judge for permission to marry, which
                  application may be granted, in the form of a written court order,
                  in the discretion of the judge. There shall be a fee of five dollars
                  ($5) for hearing each such application.

         Despite KRS 402.020's plain language that such a marriage is prohibited and

void, KRS 402.030(3) states:

               At the instance of any next friend, courts having general jurisdiction
               may declare void any marriage where:
               (a) The person was under sixteen (16) years of age at the time of
                   the marriage ;
              (b) The marriage was not conducted with the permission of a
                  District Judge, as required by KRS 402.020(1)(f)3 ., in the form
                  of a written court order; and
              (c) The marriage has not been ratified by cohabitation after the
                  person reached eighteen (18) years of age.

       If the legislature had intended to declare an underage marriage against the

public policy of the state, it would have made it absolutely void -- as it has done with

incestuous marriages and same-sex marriages -- and it would not have enacted KRS

402 .030.

       Nor would it have allowed the defense under KRS 510.035 that is at issue in this

case . KRS 510 .035 is as follows:

              A person who engages in sexual intercourse or deviate sexual
              intercourse with another person to whom the person is married, or
              subjects another person to whom the person is married to sexual
              contact, does not commit an offense under this chapter regardless
              of the person's age solely because the other person is less than
              sixteen (16) years old or mentally retarded.

       Interpreting these statutes in connection with one another, we conclude that a

marriage of a person under the age of 16, which is in violation of KRS 402 .020(1)(f), is

voidable, not void. See Mangrum, 220 S.W .2d at 408 . As such, the marriage is not

against Kentucky public policy .

       Likewise, as to the validity of the Tennessee marriage, the marriage was

voidable, not void -- a circumstance which the Commonwealth concedes in this appeal.

See Brown v. Brown , 29 S.W .3d 491, 495 (Tenn . Ct. App. 2000), permission to appeal

denied, ("`A marriage is voidable from the beginning (1) when either party was insane ;

or (2) the complainant was under duress ; or (3) was under the age of consent; or (4)

when the consent was obtained by force, or fraud, and was given by mistake; or (5)

when the defendant was impotent ; or (6) when the woman was pregnant by another
man without the knowledge of the complainant ; or (7) when, for any other reason, the

marriage was not binding on the complainant . . ."'). And a voidable marriage is valid

and binding upon the parties until such time as it is annulled by a competent court. See

Brewer v. Miller , 673 S.W.2d 530, 532 (Tenn. App. 1984) .

        Turning to the facts of this case, the evidence at trial established that Robinson

and S .M .H . married in Knox County, Tennessee on March 18, 2000, when S.M.H. was

14. S .M.H. did not testify that the marriage had been annulled .

       Given the fact of the marriage, Robinson requested that the trial court give an

instruction on marriage as a defense to the second and third-degree rape charges.

This preserved the error for review. See RCr 9.54. Upon review, we conclude that

there was evidence to support the instruction on the third-degree rape charges, but not

on the second-degree rape charges because S.M.H. testified that she and Robinson

did not marry until about one month after her 14th birthday . See KRS 510.050.

Robinson was not entitled to an instruction under KRS 510.035 for the time period

preceding the marriage .

       Upon review, this seems to be the case of a sophisticated child predator. In

holding as we do today, we are not condoning this marriage . We are following the

public policy as established by the legislature . "It is beyond the power of a court to

vitiate an act of the legislature on the grounds that public policy promulgated therein is

contrary to what the court considers to be in the public interest. It is the prerogative of

the legislature to declare that acts constitute a violation of public policy." Com. ex rel.

Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky. 1992) .

       Accordingly, we affirm the judgment in regard to Robinson's convictions and

sentence for three counts of second-degree rape . However, we reverse and remand
for proceedings consistent with this opinion that part of his conviction and sentence for

three counts of third-degree rape .

          11. Did the trial court err in refusing to grant a directed verdict on first-
        degree rape because there was no evidence of forcible compulsion?

       Under the evidence as a whole, it was not clearly unreasonable for a jury to find

guilt on the charge of first-degree rape . Thus, the trial court did not err in denying

Robinson's motion for a directed verdict on that charge.

       On a motion for directed verdict, the trial court must draw all fair and reasonable

inferences from the evidence in favor of the Commonwealth, reserving to the jury all

questions of credibility and weight of the evidence . See Commonwealth v. Benham,

816 S.W .2d 186, 187 (Ky. 1991); Commonwealth v. Sawhill , 660 S.W.2d 3, 4 (Ky.

1983) . "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 ." Benham , 816 S.W .2d at 187.

       A conviction for first-degree rape, as it relates to this case, required the jury to

find that Robinson engaged in sexual intercourse with S.M.H. by forcible compulsion.

KRS 510 .040(1)(a) . As defined in KRS 510.010(2), "'[foorcible compulsion' means

physical force or threat of physical force, express or implied, which places a person in

fear of, immediate death, physical injury to self or another person, fear of the immediate

kidnap of self or another person, or fear of any offense under this chapter . Physical

resistance on the part of the victim shall not be necessary to meet this definition."

       Turning to S.M.H .'s testimony at trial, she stated that (1) Robinson would

threaten her and members of her family, and (2) if she told him "No," he would push her

down until she gave in to him . In addition, S.M.H. testified that in her application for a


                                            -10-
domestic violence order she stated that (1) Robinson forced himself on her when she

was 12 years old and proceeded to have sexual intercourse with her, unwillingly, and

has done so for the past six years ; and (2) she is scared that he will harm her children,

her siblings, and her, because he said if she ever told anyone that she would regret it.

This evidence was sufficient to establish forcible compulsion and to withstand a

directed verdict. Thus, we affirm the judgment in regard to Robinson's conviction and

sentence on the charge of first-degree rape .

       For the reasons set forth above, we affirm the judgment of the Lincoln Circuit

Court in regard to Robinson's convictions and sentence for three counts of second-

degree rape and one count of first-degree rape . We reverse that part of the judgment

in regard to his convictions and sentence for three counts of third-degree rape, and we

remand for proceedings consistent with this opinion .

       Graves, Minton, and Roach, JJ., concur. Wintersheimer, J ., dissents by

separate opinion in which Lambert, C.J . ; and Scott, J ., join .

COUNSEL FOR APPELLANT :

John Kevin West
McCoy, West & Franklin
309 North Broadway
P .O . Box 1660
Lexington, Ky 40588-1660

COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky

Samuel J . Floyd, Jr.
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Ky 40601
                                                       RENDERED : NOVEMBER 22, 2006
                                                                   TO BE PUBLISHED


                 ,;vuyrtmr (;9vurf of ~firufurkt
                                     2005-SC-000750-MR



 CLARENCE ROBINSON                                                              APPELLANT


                        APPEAL FROM LINCOLN CIRCUIT COURT
V.                        HONORABLE DAVID A. TAPP, JUDGE
                            INDICTMENT NO. 05-CR-00033


COMMONWEALTH OF KENTUCKY                                                          APPELLEE


                DISSENTING OPINION BY JUSTICE WINTERSHEIMER

               1 respectfully dissent from Part II of the majority opinion in which the

majority reverses and remands Robinson's conviction and sentence for three counts of

third-degree rape .   I simply cannot agree that upholding this marriage does not offend

Kentucky's public policy due to the fraud perpetuated on Tennessee officials and the

lack of true consent to the marriage by the child, S .M .H. The adults responsible for

protecting S.M.H . purposefully altered her birth certificate and took her to another state

for the marriage, where she was afraid she would be abandoned if she did not go

through with the marriage . So I would hold that the trial court was correct in not

regarding this marriage as valid and in refusing to give an instruction on marriage as a

defense to the third-degree rape charges . I would affirm the trial court's judgment in all

respects .

              Lambert, C.J . ; and Scott, J ., join.
