       IMPOR 7'AN7' N-0          CE
      NOT-TO BE PUBLISHED OPINION




THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMUL GATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE .INANY COURT OF THIS STATE.
                                                        RENDERED : NOVEMBER 22, 2006
                                                               NOT=TO BE PUBLISHED



                 'SixpremE Caurf of ~11
                                         2005-SC-000727-MR
                                                          7~[

WILLIAM SHAKESPEARE WATSON                                                       APPELLANT

V.                        APPEAL FROM CHRISTIAN CIRCUIT COURT
                             HONORABLE EDWIN WHITE, JUDGE
                               INDICTMENT NO . 02-CR-499


COMMONWEALTH OF KENTUCKY                                                           APPELLEE

                           MEMORANDUM OPINION OF THE COURT

                                           AFFIRMING

       The Appellant, William Shakespeare Watson, was indicted on October 18, 2002,

for one count of first degree rape, two counts of first degree sodomy and one count of

failure to comply with sex offender registration . His first trial ended in a mistrial . He was

retried five months later wherein the jury found him guilty of one count of first degree

rape and one count of first degree sodomy, recommending thirty (30) years on each

count to run consecutively for a total of sixty (60) years. Appellant appeals his

conviction as a matter of right pursuant to Ky. Const. § 110(2)(b) asking this court to

reverse his conviction.

                                   Summary of the facts

       The Appellant lived with his girlfriend Gloria Brown. During the Labor Day

weekend of 2002, Brown's grandchildren stayed with her. These children included nine-

year old J.I., her two little brothers, and her one year old baby sister. When the

grandchildren spent the night, Brown and Appellant slept in her room, the two boys slept

in a back room, and J.l. and the baby slept in the living room .
        On that Friday night, J.1 . fell asleep on the couch during a movie . She was

 wearing a nightgown with underwear and sleeping under a comforter. She remembered

the Appellant turning on the kitchen light to get something to drink and then going back

 into Brown's bedroom. However, he came back into the living room and sat on the

couch near her feet. According to J.I ., he began feeling her legs and raised the blanket

up so he could feel her buttocks . He raised her gown and whispered he would give her

some money . He began kissing her on her mouth and taking down her underwear,

putting them in his robe. The underwear was found in his robe by Ms . Brown the next

evening .

       J.I . testified that the Appellant first tried placing his penis in her mouth . Then, he

tried to put his penis in her vagina causing her to scream. When Ms. Brown came out

of her room, J.I . was very shaken and was jumping up and down. The Appellant told

her that J .1. must have been having a bad dream and that she should sleep with her the

rest of the night.

       J .1 . did not tell Ms. Brown what had happened until the next morning. When Ms.

Brown confronted the Appellant, he denied that anything happened; stating that he went

to watch TV and J. I . woke up screaming from a bad dream.

       J.I . was later taken to the hospital and examined . She was interviewed by the

hospital staff and Detective Bickerstaff and told them about the incident.

       Ms. Brown found J.l .'s underwear in the Appellant's robe that night and

confronted the Appellant again . He responded, "Gloria, you[`re] not as dumb as I

thought you were ." When he was confronted by Det. Bickerstaff about the incident, he

denied anything and said that he had been drinking heavily that day and theorized that

the robe and underwear must have been in a clothes hamper together .
         At trial, he argued that he was innocent, that J .I. just had a bad dream . He did

 not present any proof at trial . He now asserts that he was denied due process of law

 and his conviction should be overturned because 1) his charges were amended during

 trial, 2) the Commonwealth failed to charge the aggravating factor in his indictment, 3)

 there was insufficient evidence of first degree sodomy, and 4) he was erroneously

 limited in his closing argument. After review of the record, we affirm.

                               1. Amendment to the Indictment.

        The Appellant argues that the trial court erred to his prejudice when it amended

 his indictment sua sponte. He acknowledges that this supposed error is not preserved,

 but argues it is palpable .

        The Appellant's indictment stated he was being charged with first degree rape

and first degree sodomy by engaging in sexual intercourse or deviate sexual intercourse

with J.1. a minor through the use of forcible compulsion. The indictment cited KRS

510.040 and 510 .070 for its authority .

        The Appellant argues that during his first trial, the trial court erroneously

amended his indictment from a class B felony, forcible compulsion KRS 510.040(1)(a),

to a class A felony, sex with someone less than twelve KRS 510.040(1)(b) and (2).

Specifically, he argues this amendment took place when the trial court stated "the

qualifier here is that she was less than twelve, but he was indicted for forcible rape .

You don't have to have but one qualifier to bump him up to A."

       Thereafter, the trial court instructed the jury it could convict the Appellant of first

degree rape or first degree sodomy, pursuant to KRS 510.040 and 510 .070, if he

engaged in sexual intercourse or deviate sexual intercourse with J.I ., and that at the

time of such intercourse, she was less than 12 years old. The Appellant made no
 objection . That trial ended in a hung jury and he was retried on the same counts five

 months later. At the retrial, the Appellant was convicted of rape and sodomy. Again,

 there was no objection by the Appellant to the counts charged.

        RCr. 6.16 permits the court to amend an indictment at any time before verdict or

finding if no additional or different offense is charged and the substantial rights of the

defendant are not prejudiced . See also Yarnell v. Commonweaath , 833 S.W.2d 834,

837 (Ky. 1992) . KRS 510.040 provides for one offense of rape, with two different

methods of commission. Martin v. Kassulke, 970 F.2d 1539, 1545 (6th Cir. 1992) .

However, an amendment only alleging different methods of committing the same

offense does not prejudice the substantial rights of the defendant. Robards v.

Commonwealth , 419 S.W.2d 570 (Ky. 1967) .

       In this case, the indictment clearly stated that the counts charged were pursuant

to KRS 510.040 and 510.070 and that a minor was involved . The Appellant was well

aware that J.I . was under 12. The so called amendment to the indictment was made

during his first trial, without objection . Before the supposed amendment, the Appellant

stood charged of first degree rape and sodomy . After the amendment, he stood

charged with the same counts. He had ample notice of the counts he was facing and

the amendment did not result in different or additional counts. There was no prejudice

to the Appellant's substantial rights, and thus, there could be no palpable error.

                      II. J.L's age was not an aggravating factor

       The Appellant argues that he was denied due process because the indictment

did not charge the aggravating factor which permitted a greater penalty range on the

first degree rape and first degree sodomy charges . He admits that this error is

unpreserved, but argues again that it meets the palpable error standard.
       "[A]ny complaint about the failure of the indictment to allege a sentence

aggravating or enhancement factor must be raised in the trial court by a timely motion ."

Epperson v. Commonwealth , 197 S.W.3d 46, 59 (Ky. 2006) (citing United States v.

Cotton, 535 U.S. 625 (2002)).     Pursuant to RCr . 8.18, a defendant waives any defects

in his indictment by not bringing those defects to the attention of the trial judge. Thomas

v . Commonwealth, 931 S.W.2d 446, 450 (Ky. 1996) . "Even so, aggravating

circumstances need not be specifically charged in the indictment." Id. at 59 (citing

Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky. 2003)).

       The age of the victim was no surprise to the Appellant. The age factor was

specifically listed in KRS 510.040. Even so, the Appellant made no objection during his

first trial about this alleged error in the indictment . Nor did he object during the second

trial . It is not required that an aggravating circumstance be specifically mentioned, but

here, the indictment did indicate that the offenses involved a minor. Therefore, whether

the age was an aggravating factor or not, there was no substantial prejudice to the

Appellant and his argument of palpable error is without merit.

                    Itl ._ Sufficient evidence of first degree sodomy

      Next Appellant argues that there was insufficient evidence for a conviction of first

degree sodomy because no testimony was presented to show physical contact between

the Appellant's penis and J .l.'s mouth. Penetration can be proven by circumstantial

evidence, but is not required under the sodomy statute . Bills v. Commonwealth 851

S.W .2d 466, 469 (Ky. 1993).

      KRS 510.070(1)(b)(2) states that a person is guilty of first degree sodomy when

he engages in deviate sexual intercourse with another person who is incapable of

consent because she is less than twelve years old . KRS 510.010(1) defines deviate
sexual intercourse as "any act of sexual gratification involving the sex organs of one

person and the mouth or anus of another ."

       Here, J .I. testified that the Appellant tried to put his penis in her mouth. The only

possible inference from the victim's testimony is that the Appellant's penis came in

contact with her mouth . Bills v. Commonwealth, 851 S .W.2d 466, 470 (Ky. 1993) .

Thus, under the evidence presented it was not clearly unreasonable for the jury to have

found him guilty of first degree sodomy. See Benham v. Commonwealth, 816 S.W.2d

186 (Ky. 1991) .

                                  IV. Closing araument

       Finally, the Appellant claims that he was unduly prejudiced and was denied his

right to present a defense when the trial court sustained an objection of the

Commonwealth during his closing argument.

       During the Appellant's closing argument, he argued that if there had actually

been a rape, the Commonwealth would have had medical evidence to prove it.

Specifically, the Appellant's counsel stated :

              So [J .1] herself was not talking when she told you what she though
              happened, she wasn't talking about slight penetration . She was talking
              about sexual intercourse and that's one issue I want you to use your
              common sense on, and I want you to think back on once again the lack of
              medical evidence in this case . We have an adult man and a nine year old
              girl . If sexual intercourse had happened the way she said that is
              happened, there would not have been well, what there would have been
              there would have been a whole lot more than slight redness. I mean we
              can use ou r common sense to know that there would have been tearing.
              There would have been ripping . There would have been bleeding . That
              would have been the kind of stuff you would have heard about.

The Commonwealth then objected and the trial court sustained it.

       "It is a well settled principle that matters pertaining to closing arguments lie within

the discretion of the trial court." Hawkins v. Rosenbloom, 17 S.W.3d 116, 120 (Ky. App.
1999) . "Broad latitude is given counsel so they can recite and interpret the evidence for

the jury" Owensboro Mercy Health System v. Payne , 24 S .W .3d 675, 678 (Ky. App.

2000) . "However, they may not argue facts that are not in evidence [nor] reasonably

inferable from the evidence ." Garrett v. Commonwealth , 48 S.W .3d 6,16 (Ky.

2001)(citing Coates v. Commonwealth , 469 S.W.2d 346 (Ky. 1971) ; Parsley v.

Commonwealth, 306 S.W.2d 284 (Ky. 1957)) .

        The ripping, tearing, and bleeding the Appellant was referring to during closing

arguments was not part of the evidence. There was no medical testimony that

established these injuries would have existed if J.l .'s testimony were true. J.I . testified

that the Appellant "tried to stick his private in my private ." She further testified that when

he did this, she screamed . KRS 510 .010(8) states "(s)exual intercourse occurs upon

any penetration, however slight." (Emphasis added.) Therefore, it is not reasonably

inferable that if there was slight penetration, as the evidence supported, J .I . would have

been bleeding or experienced tearing and ripping of her vagina. As the Appellant's

closing arguments were merely dramatized hypotheticals, not evidence, which were

irrelevant under the facts as existed, there was no abuse of discretion on the part of the

trial court.

                                         Conclusion

        For the foregoing reasons, we affirm the conviction of the Appellant.

        All concur.
COUNSEL FOR APPELLANT :

Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
(502)564-8006

COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General
Room 118, Capitol Building
Frankfort, KY 40601

Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
