Michael Ray Dungan v. Commonwealth of Kentucky

IMPORTANT NOTICE NOT TO 8,E 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· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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 · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED ' . . KENTUCKY APPELLATE DECISIONS, . - . ·. RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE BEFORE THE. COURT. OPINIONS CITED FOR CONSIDERATION -BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL ·BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE . ACTION.

RENDERED: NOVEMBER 2, 2017 NOT TO BE PUBLISHED ·

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2016-SC-000358-MR MICHAEL RAYDUNGAN · ·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

M;EMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, VACATING IN PART AND ·REMANDING

Michael Ray Dungan was convicted of one coul'1:t of third-degree rape, KRSI 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 . I .

("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.

·1 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 pr~mary 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 triaJ, 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 iri Dungan's bedroom, where J.M. normally does not go. J.M. was turned sideways, facing the bed. Dungan · emerge.d 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 motj:ier, 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 *3 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 froni 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 for.eri.sic investigator. At trial, J.M. testified that she remembered the police coming to her home and that afterwards Dungan did not live with them anyrpore. 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 *4 investigator and that she told the investigator the truth, which was that Dungan had touched her. She ~as 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

investigatq,r, v the Commonwealth . sought to impeach her using the recorded

interview. J.M. told the forensic investigator .that Dungan had "put his thing iJ:l 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 undel"Went 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 \

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, o~ 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 h~r 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 aprior 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 fo 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.

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 grourids 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 ofJ.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, howeyer slight, was · sufficient. Defense also objected to the jury instruction with respe.ct 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 ju:ty 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 pl~d 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 PFO 1, 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 *7 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. _ Durigan argues that his convictions for third-degree rape and abuse of

an a_dult violated the constitutional and statutory prohibition against double jeopardy. We review these two related issues in turn.

i. Constitutional protections against double jeopardy.

. Though Durtgan 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 Doµble 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 pr:otections as those guaranteed by the Fifth Amendment.

'fhe jury convicted Dungan: of third-degree rape and abuse of an adult under the following instructions:

Instruction No. 5 (Rape, 'fhird-Degree) _

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, 201.3, 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 individuaI 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, cany 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, 947 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

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 kno~ingly 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. St~tutory double jeopardy.

How~ver, 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

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). r

KRS 505.020 allows prosecution for multiple offenses· arising from a single course of conduct, but ~KRS 505.020(l}(c) qoes 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 separat~ 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, ~64 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 *11 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, sexu·al 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 inclu4ed 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 occas.ion on November 2, 2013 . .The Commonwealth has attempted to parse out discrete acts of Dungan's unbroken course of conduct toward the same victi:Q:i, but no evidence was presented of any break in the sequence of events between Dungan penetrating J.M. and Dungan placing his

penis between her legs, if in fact both occurred. It ~ppears to have been a single course of conduct. Therefore, under KRS 505.020(l)(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 th~ more severe conviction and vacate the lesser offense. ·Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008). Thus, we vacate Du;ngan'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 PFOl); 10 years for incest (enhanced to 15 years by PFOl); 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 2,0 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.

· 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 Commonweaith 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 te~timony[.f'.

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 circum~tances 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.

\

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 inve::?tigator, which she stated she did. The Commonwealth played !he tape of certain questions asked by the investigator, and asked J.M. if she rernembered 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 tesµmony, that she participated in the interview with the forensic investigator and laid the· proper foundation for introducing her prior inconsistent· statements.

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 6I3 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 preJ~dice 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 I992 statement, wherein he admitted sexually abusing J.M. Before trial, the Commonwealth gave notice of its intent to introduce evidence of the I 992 statement arid the resulting conviction. Dungan objected. The trial court

admitted the I 992 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 I992 statement was ,/

outweighed by the prejudidal 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,. I I S.W.3d 575, 577 (Ky. 2000). An abuse of discretion occurs if ~he trial coµrt's ruling is "arbitrary, unreasonable, I5

unfair, or unsupported by sound legal principles." Commonwealth v. English,

993 S.W.2d 941, 945 . (l{y. - 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 h~ppened 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 1

. . 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 *17 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 dose of all the evidence, Dungan moved for a directed verdict on 'third-degree rape and incest, arguing that the Commonwealth fajled 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 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."

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). In assessing the (

. weight of the evidence, co'l.1:rts are required to draw all fair and reasonable inferences from the evide.nce 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).

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 interqourse." "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 Duhgan'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.

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 Attomey Gep.eral

Footnotes

[2] Kentucky Rules of Criminal Procedure.

[3] Kentucky Rules of Evidence.