        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   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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                                              RENDERED: NOVEMBER 2, 2017
                                                     NOT TO BE PUBLISHED




                             2016-SC-000358-MR []~u~ ll{1.?pl f(',M           (/J,J.r4',bC..

MICHAEL RAY DUNGAN                                                    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



                  MEMORANDUM OPINION OF THE COURT

           AFFIRMING IN PART, VACATING IN PART AND REMANDING

      Michael Ray Dungan was convicted of one count of third-degree rape,

KRS 1 510 .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

("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.




      11
       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 primary 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 trial, 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 in Dungan's bedroom, where

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

emerged 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 mother, 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

from 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 forensic investigator. At trial, J .M.

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

afterwards Dungan did not live with them anymore. 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 was 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

investigator, the Commonwealth sought to impeach her using the recorded
          ,;




interview. J.M. told the forensic investigator that Dungan had "put his thing in

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 underwent 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, or 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 her

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 a prior 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 to 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 grounds 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 of J.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, however slight, was

sufficient. Defense also objected to the jury instruction with respect 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 jury 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 pled 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 PFOl, 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.
      Dungan argues that his convictions for third-degree rape and abuse of

an adult violated the constitutional and statutory prohibition against double

jeopardy. We review these two related issues in turn.

                i. Constitutional protections against double jeopardy.

      Though Dungan 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 Double 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 protections as those guaranteed by the Fifth

Amendment.

      The jury convicted Dungan of third-degree rape and abuse of an adult

under the following instructions:

            Instruction No. 5
            (Rape, Third-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, 2013,
            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
            individual 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, carry 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, 94 7 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 knowingly 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. Statutory double jeopardy.

         However, 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) .

      KRS 505.020 allows prosecution for multiple offenses arising from a

single course of conduct, but "KRS 505.020(1)(c) does 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 separate 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,

864 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, sexual 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 included 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 occasion on November 2, 2013. The Commonwealth has

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

toward the same victim, 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 appears to have been a

single course of conduct. Therefore, under KRS 505.020(1)(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 the more

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

S.W.3d 668, 678 (Ky. 2008). Thus, we vacate Dungan'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 PFO 1); 10 years for incest (enhanced to 15 years by PFO 1); 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 20 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 Commonwe8..lth 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 testimony[.]"

      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
               circumstances 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 investigator, which she stated she did. The

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

and asked J.M. if she remembered 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 testimony, 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 613 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 prejudice 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

1992 statement, wherein he admitted sexually abusing J.M. Before trial, the

Commonwealth gave notice of its intent to introduce evidence of the 1992

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

admitted the 1992 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 1992 statement was

outweighed by the prejudiCial 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, 11 S.W.3d 575, 577 (Ky. 2000). An

abuse of discretion occurs if the trial court's ruling is "arbitrary, unreasonable,
                                        15
unfair, or unsupported by sound legal principles." Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 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 happened 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

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 close of all

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

incest, arguing that the Commonwealth failed 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 ofa 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, courts are required to draw all fair and reasonable

inferences from the evidence 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 intercourse."

"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 Dungan'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 Attorney General




                                 19
