        IMPORTANT NO~'ICE
       NOT TO BE PUBLISHED OPINION




THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMULGATED BY THE
SUPRE1f1E COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED ANA SHALL NOT BE
CITED OR USED AS AUTHORITYINANY OTHER
CASE INANY COURT OF THIS STATE.
                                                          RENDERED : AUGUST 24, 2006
                                                               NOT TO BE PUBLISHED


             "Sixprrms Courf of '~
                                   2005-SC-000722-MR


    PAUL AMBURGEY                                                              APPELLANT


                       ON APPEAL FROM PIKE CIRCUIT COURT
V.                      HONORABLE EDDY COLEMAN, JUDGE
                               NO. 01-CR-0001-001


COMMONWEALTH OF KENTUCKY                                                         APPELLEE


                       MEMORANDUM OPINION OF THE COURT

                                        AFFIRMING



              Appellant, Paul Amburgey, was convicted of two counts of rape in the first

degree by a Pike County Circuit Court jury. Appellant was sentenced to twenty years

on each count, to be served concurrently . This appeal is as a matter of right.'

Appellant asserts that there was insufficient evidence presented by the Commonwealth

and that he should have had a directed verdict of not guilty . Appellant moved for a

directed verdict at the close of the Commonwealth's evidence in chief and again at the

close of all the evidence, thereby preserving the issue for our review. Specifically,

Appellant contends that the testimony of an eight-year-old child is legally insufficient to

establish his guilt beyond a reasonable doubt.




' Ky. Const. § 110(2)(b) .
2
  Pate v. Commonwealth , 134 S.W.3d 593 (Ky. 2004).
                On June 18, 2004, Social Services removed eight-year-old S.J ., the rape

victim in this case, from her home due to her biological parents' involvement with drugs.

She was placed with her maternal aunt, Dottie Amburgey, who was married to

Appellant . S.J.'s younger brother, C.J. (age 3), and an infant, E .J., were also placed in

Appellant's home. On November 30, 2004, the Kentucky State Police (KSP) received a

report from the Children's Hospital in Cincinnati, Ohio, that S .J . had been treated for

injuries that were consistent with a sexual assault . The officer who initially responded to

the hospital's report used a rape kit to collect swab samples from S .J for laboratory

examination .

                At a later time following S .J .'s hospital visit, KSP officers were informed by

Appellant's wife that on November 29, 2004, she noticed the victim "walking funny ."

This prompted Appellant's wife to ask S .J . what was wrong. S .J . told her that she hurt

herself on the preceding Friday by inserting a screwdriver into her vagina because she

thought her aunt, Appellant's wife, no longer loved her. Upon hearing this information,

Appellant and his wife took S.J . to the children's hospital in Cincinnati, Ohio, for

treatment .

                On the same day that the KSP received the report from the children's

hospital in Cincinnati, a search of the Amburgey residence was conducted . The search

was videotaped and evidence was collected for laboratory examination . The evidence

retrieved included a black plastic bag containing bloody clothing of the victim, several

screwdrivers, and a sheet located on the kitchen floor. In addition, an air mattress

positioned at the foot of Appellant's bed was examined by police officers. The victim

had been known to sleep on the air mattress on occasion.
               Following the search of the residence, KSP Detective Billy Hall

 interviewed Appellant and his wife . Both denied any involvement in S .J .'s injuries, and

 maintained that the victim purposely inserted the screwdriver into her vagina . Also,

Appellant's wife informed Detective Hall that there were bloody items located in a trash

bag on the front porch that she alleges S.J . placed there . Appellant denied any direct

knowledge of the injury to SJ's body.

               More than a week after the search of the residence, Appellant's wife

contacted the KSP to report that she had discovered two additional screwdrivers.

Appellant's wife communicated to the authorities that she found the screwdrivers in the

front living room of the residence. However, the police officers who conducted the

search of the dwelling were certain they would have seen such items if they had been in

that location at the time. Subsequent laboratory testing revealed that the victim's blood

appeared on one of the newly discovered screwdrivers.

              Following multiple surgeries and the insertion of a colostomy, S .J . was

released from the hospital to the foster care of a Medical Fragile Foster Care parent,

Shonda Combs. Mrs. Combs reported that on December 24, 2004, S .J. informed her of

an occasion in which Appellant came into the bedroom where S .J. was lying and "put

his thing in her, and it hurt, and made her bleed real bad." She then proceeded to tell

that Appellant took a screwdriver and placed it inside of her. S.J . also conveyed to Mrs.

Combs that Appellant had said he would kill her if she spoke of the incident to anyone.

The victim also told Ms. Combs that the Appellant cleaned the screwdriver off at the

kitchen sink. After receiving this information, Mrs . Combs contacted a social worker.

Pursuant to Mrs. Comb's report of the incident, S.J . underwent a videotaped forensic
 interview by a social worker . During the interview, S.J .'s statements were consistent

 with the prior details of the incident that she had revealed to Mrs. Combs .

               On February 2, 2005, a Pike County Grand Jury returned a three count

 indictment against Appellant . Count one stated that on or about November 26, 2004,

Appellant committed rape in the first degree by engaging in sexual intercourse with a

person less than twelve years of age.3 Count two charged Appellant with the offense of

rape when he engaged in sexual intercourse with a person less than twelve years of

age, during which time the victim sustained a serious injury. The final count alleged

that during the period from November 26-30, 2004, Appellant committed the offense of

criminal abuse in the first degree when he violated KRS § 508 .100 which states:

               (1) A person is guilty of criminal abuse in the first degree
               when he intentionally abuses another person or permits
               another person of whom he has actual custody to be abused
               and thereby : (a) causes serious physical injury; (b) or places
               him in a situation that may cause him serious physical injury ;
               or (c) causes torture, cruel confinement, or cruel
               punishment.

              Appellant's trial took place on June 20, 2005. During the proceedings,

S.J . testified that on November 26, 2004, the Appellant entered the room where she

was lying on an air mattress . S .J. testified that Appellant placed his penis into her

vagina, causing her to bleed, and then placed a screwdriver inside her afterwards .

When confronted with her previous inconsistent statement at the hospital that she had

purposefully placed the screwdriver inside herself, S.J . explained that it was due to the

Appellant's threat of killing her if she told anyone . She explained to the jury her injuries,

past and future surgeries, and displayed her colostomy.


3 KRS 510.040.
4 Id.
                At the close of the commonwealth's case, counsel for Appellant made a

 motion for a directed verdict, which was denied. The motion was renewed at close of all

 the evidence and it too was denied. The    jury   returned a guilty verdict on both counts of

 first degree rape . Appellant was sentenced to twenty years on each count to be served

concurrently.

                Appellant argues that the judgment of first degree rape should be

overturned and the charges dismissed.       He asserts that the Commonwealth's evidence

was insufficient to survive his motion for a directed verdict and that the trial court's ruling

to the contrary was erroneous. Appellant alleges that there was deficient evidence

presented by the Commonwealth during the trial court proceedings. Appellant asserts

that the conflicting and self-contradictory testimony of an .eight-year-old child should not

be sufficient to establish guilt beyond a reasonable doubt . Moreover, Appellant

attempts to support his argument for a reversal by relying on Garmeada Coal Co. v.

Mabe .S The Court stated in Garmeada that "in civil cases the party has the burden of

proof to make out a prima facie case, while in criminal cases the accused must be

proven guilty beyond a reasonable doubt. It is patent it takes strong and convincing

evidence to prove anything beyond a reasonable doubt . . . .s Also, Appellant refers to

the language in Wilke v. Commonwealth7 which states "if the evidence is as consistent

with innocence as with guilt his conviction cannot be sustained. . . ."$

                However, the Appellant's reliance on the aforementioned case law is

misplaced. Instead, the Commonwealth utilizes the proper standard of review to


5 222 S.W .2d 829 (Ky. 1949).
6 Garmeada , 222 S.W.2d at 830 (Ky. 1949).
'452 S.W.2d 420 (Ky. 1970) .
1 Wilkev, 452 S.W.2d at 422.
 determine when a directed verdict is justified . In Commonwealth v. Benham9 this Court

 opined,

                       On motion for directed verdict, the trial court must
              draw all fair and reasonable inferences from the evidence in
              favor of the Commonwealth . If the evidence is sufficient to
              induce a reasonable juror to believe beyond a reasonable
              doubt that the defendant is guilty, a directed verdict should
              not be given. For the purpose of ruling on the motion, the
              trial court must assume that the evidence for the
              Commonwealth is true, but reserving to the jury questions as
              to the credibility and weight to be given to such testimony.

                      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 .'°

From the evidence in this case, and taking the evidence in the light most favorable to

the Commonwealth, it was not clearly unreasonable for the jury to find Appellant guilty

of two counts of rape in the first degree.

              The rape victim, eight-year-old S .J., participated in a video-taped forensic

interview by a social worker in which she explained what Appellant had done to heron

the night of November 26, 2004. She discussed how Appellant raped her and

subsequently placed a screwdriver inside her vagina, with both acts causing her to

bleed. S .J .'s account of this event was consistent during her testimony and with her

initial discussion with Shonda Combs (i.e., the Medical Fragile Foster Care parent) on

December 24, 2004 . In addition, the photographs of her injuries that were viewed by

the jury show the sexual abuse and violence that this child endured at the hands of

Appellant . Moreover, there was no reasonable explanation for the delay in taking S.J .


9 816 S.W.2d 186 (Ky. 1991).
'° Benham , 816 S.W.2d at 187 (Ky. 1991) (citin Commonwealth v. Sawhill , 660 S .W .2d
3, 4-5 (Ky. 1983) (emphasis added)).
to the hospital after the rape had occurred . Lastly, S.J.'s failure to inform Appellant's

wife about the rape was justified by her fear that Appellant would kill her if she told

anyone .

               Clearly, there was sufficient evidence presented from which a reasonable

juror could find guilt beyond a reasonable doubt. This Court has recognized "that it is

within the peculiar province of the jury to determine the credibility of the witnesses and

the weight to be given their testimony, and in the exercise of function they may believe

one witness though contradicted by a number of others, or one set of witnesses to the

exclusion of others ."" Also, this Court has consistently taken the position that "an

appellate court cannot reevaluate the evidence or substitute its judgment as to the

credibility of a witness for that of the trial court and the jury."' 2

               Accordingly, Appellant's convictions are affirmed .

               Lambert, C.J ., and Graves, McAnulty, Minton, Roach, Scott, and

Wintersheimer, JJ., concur.




" Bowling v. Commonwealth , 318 S.W.2d 53,55 (Ky. 1958).
'2
   Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994) (uotin Commonwealth v.
Bivins, 740 S.W.2d 954, 956 (Ky. 1987)) .
COUNSEL FOR APPELLANT :

James W . Craft II
21 North Webb Avenue
Whitesburg, KY 41858




COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky

Louis F. Mathias, Jr.
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
