Opinion
NO. 2012-CA-001725-MR
06-06-2014
DANA MATHEW PRATHER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 11-CR-00389
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Appellant, Dana Prather, appeals the September 19, 2012 judgment of the McCracken Circuit Court entered pursuant to a jury verdict convicting him of two counts of Complicity to Incest, a Class C felony, and sentencing him to ten-years imprisonment. Prather's sole claim on appeal is that the statute prohibiting incest, Kentucky Revised Statute (KRS) 530.020, is unconstitutional as applied to the facts of this case. Based on the plain meaning of KRS 530.020, we disagree and affirm.
I. Factual and Procedural Background
Prather's conviction stems from his orchestration of a ménage à trois among himself, his wife Jennifer Prather, and his adult son, the victim. The victim is Prather's son from a previous marriage, and Jennifer is the victim's stepmother. Details of the incident emerged July 26, 2011, after the victim awoke in the night, screaming. When his long-time girlfriend asked what was wrong, he told her.
The Court need not, and declines to, identify the victim, and his girlfriend, by name.
According to the victim, earlier that same day he received a call from Prather and Jennifer, asking him to come to the couple's hotel room at the Budget Inn and to come alone. When he arrived, Prather confided in him that he and Jennifer were experiencing marital difficulties and that to cure those difficulties, the victim needed to have sex with his step-mother. The victim protested but eventually acquiesced because he was afraid Prather would beat him. At Prather's behest, Jennifer performed sex acts on the victim while Prather watched. Prather also reportedly engaged in intercourse with Jennifer while she performed oral sex on the victim.
The victim later reported the incident to police, resulting in a full investigation. On September 2, 2011, a grand jury indicted Prather on two counts of complicity to incest, pursuant to KRS 530.020. Prather was convicted on both counts by a jury on June 12, 2012. At trial, Prather's counsel moved for a directed verdict at the close of the Commonwealth's case, arguing the Commonwealth's witnesses provided testimony so inconsistent as to render the Commonwealth's evidence insufficient to prove the offense. Counsel failed to renew his motion after presenting evidence for the defense.
Based on the victim's allegations that Prather threatened force unless he had sex with Jennifer, Prather was indicted on two counts incest, a Class B felony. Finding no forcible compulsion, the jury convicted Prather on two counts incest, a Class C felony. See KRS 530.020.
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On appeal, however, Prather offers a novel argument - that the Commonwealth failed to present sufficient evidence that Prather, Jennifer, and the victim had ever been part of a "family unit," which, according to Prather, is a necessary element of the offense. Therefore, the trial court should have granted Prather's motion for a directed verdict.
Although the term "family unit" is absent from the language of KRS 530.020, Prather maintains this Court must read this "family unit" requirement into the statute, lest it violate both the equal protection and due process clauses of the U.S. Constitution's Fourteenth Amendment.
II. Standard of Review
While Prather couches his argument as an attack on the sufficiency of the evidence, it is really an as-applied constitutional challenge to KRS 530.020. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). Because Prather challenges the constitutionality of KRS 530.020, he was required by KRS 418.075 to notify the Attorney General of his challenge.
At the trial level, KRS 418.075(1) requires any defendant who wishes to challenge the constitutionality of a statute to notify the Attorney General of his claim "before judgment is entered." Similarly, an appellant challenging a statute on constitutional grounds must serve the Attorney General with "a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum" before the appellant files his brief. KRS 418.075(2). The Kentucky Supreme Court has admonished appellate advocates that "strict compliance with the notification provisions of KRS 418.075 is mandatory." Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008). The notification requirement applies even in criminal cases where the Attorney General represents the Commonwealth, regardless of whether a statute is challenged on its face or as applied to a specific case. Id. Failure to give notice leaves the constitutional challenge unpreserved. Jones v. Commonwealth, 319 S.W.3d 295, 296-97 (Ky. 2010).
The record shows no sign of notice to the Attorney General, either at the trial level under KRS 418.075(1) or in this Court under KRS 418.075(2). This failure renders his argument unpreserved. However, this Court may, in its discretion, review unpreserved errors. Matters not properly preserved in a criminal trial are subject to palpable error review.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Kentucky Rule of Criminal Procedure (RCr) 10.26.
Manifest injustice is defined as "[a] direct, obvious, and observable error in a trial court . . . ." Manifest injustice, Black's Law Dictionary (9th ed. 2009). Palpable error analysis asks whether there is a substantial possibility that the outcome of the defendant's case would have been different absent the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006). If so, we must consider "whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
III. Analysis
Explicit in the phrase "palpable error" is the notion that actual error exists. In turning to the merits of Prather's arguments, we fail to see how his conviction was in error, let alone error of such magnitude that it is jurisprudentially or constitutionally intolerable.
KRS 530.020(1) prohibits sex acts between family members, stating explicitly that "[t]he [prohibited] relationships . . . include relationship of stepparent and stepchild . . . ." However, Prather maintains that use of the word "relationships" in KRS 530.020 implies that the statute was only intended to protect the integrity of the family unit by prohibiting sex between persons in a position of authority or influence over a child. Therefore, Prather argues, the statute impliedly requires the Commonwealth to prove that the incestuous activity occurred between a stepparent and stepchild who lived together in a family unit.
Prather says Jennifer neither lived with, nor had any parental role relative to the victim; the record indicates the victim was raised primarily by his biological mother. Accordingly, under Prather's interpretation of the statute, Jennifer and the victim never shared the type of familial "relationship" that the statute was designed to protect.
Instead, Prather claims, any conceivable "relationship" between the victim and Jennifer was merely technical in nature, and but for Prather's marriage to Jennifer, Prather and the victim would have the same freedom as other consenting adults to engage in tandem or sequential sexual relations with Jennifer in the privacy of their motel room.
Ignoring the possibility that some might consider this a distasteful argument, it is sufficient that we note Prather's narrow interpretation of the word "relationship" in KRS 530.020 is at odds with our rules of statutory interpretation.
It is this Court's duty when interpreting statutes to give effect to the General Assembly's intent, but "no rule of interpretation . . . require[s] us to utterly ignore the plain . . . meaning of words in a statute." In fact, "[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source." We "ascertain the intention of the legislature from words used in enacting statutes ratherRevenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005).
than surmising what may have been intended but was not expressed." In other words, we assume that the "[Legislature] meant exactly what it said, and said exactly what it meant." Only "when [it] would produce an injustice or ridiculous result" should we ignore the plain meaning of a statute.
The plain meaning of "relationship" demonstrates that Prather's definition is too narrow, because a relationship is defined simply as "the nature of the association between two or more people." Relationship, Black's Law Dictionary (9th ed. 2009). Absent language in the statute, we may not presume our General Assembly intended to adopt a more narrow definition of "relationship." Therefore, we hold that the General Assembly's use of the word "relationship" does not imply that a steparent and stepchild need to have ever lived as a family unit to support a prosecution under KRS 530.020.
To support his constitutional challenge, Prather cites the United States Supreme Court case, Lawrence v. Texas, 123 S.Ct. 2472 (2003). His reliance on Lawrence is misplaced. In Lawrence, the high court struck down a Texas law prohibiting sodomy, citing a fundamental right of adults to engage in private, consensual relationships. But Lawrence did not expressly declare a steparent's fundamental right to engage in sexual activity with her stepchildren. See Lowe v. Swanson, 663 F.3d 258, 259, 264 (6th Cir. 2011) (upholding Ohio Supreme Court's conclusion that "Lawrence did not announce a 'fundamental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren"); Muth v. Frank, 412 F.3d 808 (7th Cir.), cert. denied, 546 U.S. 988, 126 S.Ct. 575, 163 L.Ed.2d 480 (2005). Accordingly, our General Assembly may regulate such conduct so long as it is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 227, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981).
The General Assembly's interest in prohibiting incest between stepparents and stepchildren is no doubt legitimate because a stepparent possesses inherent influence over a stepchild, regardless of the stepchild's age or the degree of familial bond between them. Lowe, 663 F.3d at 264. Indeed, the facts of this case illustrate how powerful that influence can be, considering the victim was eventually persuaded to have sex with his step-mother even though it was so traumatic that he later awoke screaming and complained to police. Prohibiting sexual relations between stepparents and their stepchildren is rationally related to preventing a parent from using her influence in pursuit of her own sexual gratification.
IV. Conclusion
For the reasons set forth above, the judgment of the circuit court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky