Rita M. Martin v. Betty Kassulke, Warden, 970 F.2d 1539

Rita M. Martin v. Betty Kassulke, Warden

970 F.2d 1539

6th Cir.

1992

Check Treatment

*1 Furthеrmore, panel in this instance injunction issue MARTIN,

reviewing preliminary Petitioner-Appellee, Rita M. solely adequacy decision on its based must examine May 3 letter. “[W]e KASSULKE, Warden, Betty notice, May 3 not the sufficiency of the Respondent-Appellant. I, F.2d 20 notice.” Weaver November No. 91-5788. indicated dicta The court 1042. inade- 20 renotification was November Appeals, Court of United States financial infor- failing to disclose quate for Sixth Circuit. the unions’ affiliated concerning mation Submitted Nov. 1991. organizations. Id. national labor state reached the same conclu- сourt The district July Decided 1992. judgment and its final independently sion disclose this informa- the union to directed entry judg- days from within 60

tion

ment. judgment, the stay the a motion to the district court advised

union portion of that seek a modification

would de- this court judgment when the final appeal and the district present

cided The union mandate. received our

court all that audits of district court

advised available, and that were not its affiliates propose would union such audits the

lieu agency portion rebate the entire

to charges affiliation attributable

fee any include affiliation not to and there- for 1991 agency fees court will consider The district

after. remand. upon

proposal indicated, reject the we previously

As appeal from in their contentions

plaintiffs’ reject the defen- judgment and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍final indemnification position on the

dants’

clause. the district judgment of cross-appeal appeal аnd

affirmed proceed- for further case is remanded No charges. respect to affiliate

ings with allowed.

costs *2 (briefed),

David R. Lexington, Marshall Ky., for petitioner-appellee. Martin, pro

Rita M. se. Johnson, Joseph R. Atty. Asst. Gen. (briefed), Gorman, Gen., Atty. Chris Frank- fort, Ky., respondent-appellant. NORRIS, Before: BOGGS and Circuit TIMBERS, Judges; and Senior Circuit Judge.* BOGGS, Judge. Circuit 1990,petitioner, In October who has been prison since 1984 on of first- degree rape, petition filed a for a writ of corpus grounds habeas on the that the dif- ference charges against between the her as outlined in the instructions and the charges in her indiсtment constituted an impermissible constructive amendment of the indictment and merely permissi- ble variance. The district court petition on June 1991. We reverse, holding that the difference be- tween the indictment and the tions was permissible variance. I co-defendants, Rita Martin and her Jameson, James Hall and Jesse were indict- assault, ed for first-degree first-degree robbery, first-degree Nancy Bellamy. Martin and Hall were also first-degree burglary. At tri- al, guilty aiding found Martin assisting first-degree Jameson Bellamy guilty of fourth-de- gree jury-recom- assault. She received the years, mended sentеnce of ten served concurrently to a sentence of twelve months and a fine. Hall received $500 same verdicts and sentence. Jameson was first-degree rape found and re- jury-recommended ceived the sentence of years. ten light most Viewed favorable to the prosecution, the facts of the case are as * Timbers, Circuit, sitting by designation. The Honorable William H. Senior Cir- for the Second Judge Appeals cuit of the United States Court of they 7, 1984, Nancy up Bel- came home and when he February On follows. bedroom, people, Bellamy, came out of his he saw two other along with lamy, friend, Treadway, move eye bloody Ronnie he said had a “busted helping who County, Ken- face”; 2) Clark apartment his he then had sex out of said that *3 evening, the During of the course tucky. willing Bellamy, partici- who was a with Rita Martin at Jamesqn to went find foursome trial, the pant. At neither nor Martin Martin Lounge, where Buckboard the testified that Bel- testified. Hall pistol a sought retrieve They to worked. accompany lamy asked to him and Martin Martin while she Treadway given had to Hall that while’ at Jameson’s. said pre- apartment the staying at his had he аnd Martin went to bed and Jameson’s return refused to Martin vious weekend. Bellamy sex while was still the tub. had night, Treadway. Later that to pistol thing that the next he heard was He said a.m., and Mar- defendant Hall 12:30 around knocking uncle on his door the next his knocked Treadway’s apartment, tin went morning. door, demand- in. Martin and broke on the trial, three co-defen- After a left in the that she had the clothes ed 20, On 1984. guilty were found June dants Bellamy previous weekend. apartment the Kentucky Appeals appeal, the Court of On apartment. Treadway at the still was 3, April Martin’s conviction. On affirmed bеlong- collecting her Martin started As 1989, pro petition a for writ Martin filed se Treadway, saying ings, Hall threatened court, corpus federal district habeas of Treadway ran out to gun. he had a denied for failure to exhaust which apart- who lived police a officer get Martin, filing after for and remedies. state gone, Treadway was below. While ment discretionary review being denied Bellamy, whom abducted and Martin Hall filed an- Kentucky, then Supreme Court for drug a informant to be they believed court petition the district habeas with other Bellamy to They drove government. 18, 1991, On Junе October 1990. where Hall was apartment Jameson’s Jesse for a writ of petition There, Hall, living. Mar- temporarily also that a differ- corpus ground on the Bellamy. severely beat tin, and Jameson instructions between ence Bellamy’s then tore off and Hall Martin a constituted indictment tub,.with Hall her and threw into clothes On June to the indictment. somebody amendment to fuck going “he wasn’t saying a motion court granted the district Bellamy testi- over them.” all with blood (cid:127) writ Kentucky stay the habeas dragged her into for Hall then fied her, Hall raped appeal. after which living room and pеnding Appar- bedroom. went into a and Martin woke Bellamy then out and ently blacked II morning in bed with next

up the Jameson’s grabbed point Bellamy At that Jameson. or con question of variance house. a friend’s clothes and ran to her case in this amendment arises structive police to the reported the crimes Bellamy not contain did Martin’s indictment and Hall as both Jameson identified rape that first-degree the elements all rapists. Un instructions. included were state- gave three custody, Martin law, person statutory Kentucky der Tread- 1) Bellamy left said that she ments: first-degreе rape when: voluntarily because way’s apartment intercourse with a) engages in sexual He her; 2) that at Jame- said beating she compulsion; person forcible another Bellamy, and kicked with fought son’s she involved; her, nobody else was but with b) engages in sexual He Bellamy 3) then left said that she she con- incapable of person who is another bed, bathroom, and had sex went to he: sent because statements: gave two Hall. Jameson helpless; or i) physically Is him Hall woke 1) Martin and he said that years ii) proves than twelve old. evidence offered at less triаl Is materially facts different from those al- 510.040. Ky.Rev.Stat.Ann. § leged in the indictment.” first-degree rape indictment Martin’s following: stated the (quoting 872 F.2d Gaither v. Unit- day or about the 8th States, (D.C.Cir. On Count V: ed County, Ken- February, in Clark 1969)) (emphasis original). An amend- named defendants ... tucky, the above per prejudicial, ment is se directly as it of RAPE IN THE committed offense infringes right the defendant’s to know of by knowingly and un- FIRST DEGREE charges against him effectively al- lawfully engaging in sexual intercourse lowing to convict the defendant of Nancy Bellamy by compul- a different crime than that for which he *4 causing Nancy further said Bel- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sion and Ford, charged. was 872 F.2d at 1235. physical injury; lamy serious present This case does not us with an actu- by which The instruction Jameson was amendment; al charged Martin was first-degree rape, by of found aiding rape, clearly a and Jameson was which Hall and Martin found accesso- were committing rape. convicted for a rape, jury: ries to the directed the variance, hand, A on the other “is find You will Jesse defendant not error unless the reversible accused has guilty under this in- “Butch” Jameson proved prejudicial upon a effect his de if, if, only you struction believe fense,” merely permits pros because it beyond a doubt evidence reasonable prove ecution to facts to the crim establish following: all of the charge materially inal different from the a) county in or That this about Febru- charging facts contained in the instrument. 8, ary engaged 1984 in sexual ... Ibid.; Beeler, see also United States v. 587 Nancy Bellamy, intercourse with AND 340, (6th Cir.1978). Although F.2d 342 it is b) compulsion, That he did so forcible generally subject to the harmless error OR test, “infringes upon ‘appri a variance Nancy Bellamy That of incapable sal function’ of the sixth amendment which physically help- consеnt because she was requires prosecutions, that all criminal ‘[i]n less. enjoy right the accused shall ... to be origi- instruction differs from the informed of the nature and cause of the accusation_’” in possi- nal indictment that it mentions the Ford, 872 F.2d at 1235. bility Bellamy incapable of con- infringes strongly upon If a variance too a physical helplessness, sent rights, defendant’s sixth amendment it is possibility that had not been mentioned amendment,” considered a “constructive the indictment. The indictment had which is “a variance that is accorded the charged rape by compulsion. per prejudicial se treatment of an amend- are There several methods which However, although ment.” Ibid. a defen- grand charges contained in prejudice dant need demonstrate actual may dictment altered. be United States to demonstrate that a constructive amend- Ford, (6th Cir.1989), v. 872 F.2d 1231 cert. rights, ment violated his constitutional an — denied, —, 124, 111 112 S.Ct. prejudice clearly element of remains (1990), recognized L.Ed.2d 93 this court term, following as is evident from the dis- categories two basic of indictment modifi cussion: cation: A constructive amendment occurs “An amendment indictment oc- the tеrms of an indictment are in effect charging curs when the terms of the presentation altered of evidence altered, literally indictment are either or modify instructions which effect, so by prosecutor court after essential grand jury passed upon has last them. elements offense like- charging charged A occurs when the that there is a substantial variance unaltered, may terms of an indictment are left lihood that have defendant

1543 physical helplessness other than should seen an as two been convicted offense merely alternative crimes or two alterna in the indictment. crime, tive methods which the one rape, 902, 798 F-.2d Hathaway, v. States United they could have been committed. If are added). Thus, Cir.1986) (6th (emphasis 910 methods, seen as alternative then the addi amend-, the level of a constructive to rise to physical helplessness tion of the ment, change effectively must alter-the However, appellee would abe variance. of the indictment. Hunter substance argues understanding for a more limited (10th Mexico, F.2d 599 Cir. New variance, maintaining that United States — U.S. —, denied, 1990), S.Ct. Peterman, (10th-Cir.1988), (1991), 114 L.Ed.2d 87 t. 488 U.S. cer court, granting The district (1989), S.Ct. 102 L.Ed.2d 774 stands instructions, corpus, held proposition process for the the due “physical helplessness” added the which right to clear notice of criminal theory rape, effectively altered the sub- guaranteed by-the fourteenth amendment indictment, therefore, stance of includes notice of the exact method being tried for a that the defendant was alleged which the criminal actions were had indicted crime than she different agree. have been committed. We do not *5 rights. for, in of her constitutional violation Peterman, In the defendant was indicted argues that the addi- appeal, the state On “using deceptive techniques sales and helplessness” theory “physical tion of making representations false to victim-cus- only a variance and rape statute was including tomers ... the use of ‘bait and constructively amend the substance did not tactics_” Peterman, 841 F.2d switch’ of the indictment.. at 1477. The indictment cited several overt material, is not or does A variance ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Peterman used and acts where these “bait a constructive to the level of not rise However, jury tactics. switch” amendment, unless the variance misleads comрlete included a more definition of tions making defense or ex accused in her tactics and thus exceeded “bait and switch” danger jeopardy. of double poses her to the diverged alleged and activities Commonwealth, 393 S.W.2d Runyon Peterman, indictment. 841 F.2d at denied, 877, 384 U.S. (Ky.1965), cert. 1478. The court held that: (1966). 16 L.Ed.2d 359 86 S.Ct. assuming part that of the definition Even claims that neither of government The instructions of bait and switch happened here. It contends things these alleged in from the activities diverged danger of a second convic that there is no indictment, was offered no evidence theory rape on a different tion for the same prove the offenses described at trial preju was not Martin’s defense and that objectionable parts of the instructi government The diced this variance. ons........ put the indictment Martin argues that charged with first- notice that she produced at trial Thus the evidence Ky.Rev.Stat.Ann. rape, pursuant to degree initial- closely corresponds to the offense authorizes convic That section 510.040. § There in the indictment. ly described either forcible rapes committed tions for record which was no evidence physical helpless through compulsion or to convict have allowed would Therefore, govern ness of the victim. was not an offense that Peterman of would have that her defense ment contends charged in indictment. manner under in the same prepared to reach the did not The court have Ibid. i.e., defending theory, she was either adding a new method to whether issue as it occurred. rape, no matter how against would be a con- expanding the definition determining key question in the defendant The variance because structive correspond- a variancе or a this case involves was convicted on evidence whether charged at the initially rape the offense amendment is whether ed to implication rape due to indictment. compulsion by forcible expanded State, Clayborn if an definition 278 Ark. the case is that instructions created a in the contained case, In S.W.2d 433 the Su indictment, not found new offense preme Court of Arkansas reversed the con illegal constructive would constitute an raped viction of a defendant who had a 78- amendment. year-old victim forcible sexual inter question over thе The courts are divided rape course. The Arkansas statute set and constructive amend of sex crimes rape forth the elements of being as that a Mexico, v. New ments. Hunter person engages commits if he in sexu — (10th Cir.1990), al activity intercourse or deviate sexual (1991), —, 114 L.Ed.2d 87 111 S.Ct. person by compul with another a life sentence for the defendant received 41-1803(1)(a).1 sion. Ark.Stat.Ann. step sexually assaulting daughter his charged court held that the information stepdaughter testified that daughter. The Clayborn rape by forcibly engaging her, beginning when she Hunter assaulted activity, rape by deviatе forcibly sexual old, repeatedly years nine engaging in sexual intercourse. The court seventeen, by plac thereafter until she was rejected government’s argument that it ing finger penis or his inside her either his was sufficient for the a con defendant to be vagina. The instruction allowed first-degree pen criminal sexual viction for charged rape, and convicted of forcible (“CSP”) finding on a etration based of ei the method of was irrelevant. finger pen ther sexual intercourse or The court concluded: etration, while information argument That assumes a fallacious base “unlawfully defendant appellant solely charged was not intentionally engaged in sexual inter rape. charged only If he had been Hunter, course.” 916 F.2d at 597. *6 terms, general might then it have been appeals writ The court of pro- sufficient under our liberal rules of corpus, finding a constructive cedure, especially in the of absence a on the fact amendment based particulars. motion for a bill of But here crime of as CSP defined appellant rape by forci- until tion did not exist New Mexico 1975. bly engaging activity. in deviate sexual involving was defined Until CSP as charge Such a includes the crimes for- only digital pen- sexual intercourse and not etration, merly sodomy which under the definition of labelled statute as fell fourth-degree sexual assault. The court buggery, except bestiality aspect, for the that: held penetration may and the by finger, to convict was allowed Hunter [T]he tongue or dildo. of facts than those on a different set set Clayborn, 647 S.W.2d at 434. possible forth in the information. It is degree dissenting judges him one of the convicted of first only digital pen- assault sexual based Clayborn felt that prior July occurring etration 1975. majоrity’s reasoning argu- The is akin to Further, provided, the on the instruction ing that it a difference whether makes could have found Hunter of knife; a one is killed with a bullet or a assault, a degree fourth sexual shell, or a dum dum bul- copper jacketed not found the information. Conse- let; killing killing a and the exact is jury in- quently, we hold the modified invariably un- is irrelevant method used constituted constructive struction show some kind of the defendant can less amendment of the information which re- prejudice. quires reversal. Hunter, at 599-600. 436, (Hickman, J., at Clayborn, 647 S.W.2d majority dissenting). This view became the support

For of the further view, ratio Clayborn as the decision and position, appellee points amendment us to Charged 1. to Ark.Stat.Ann. 5-14-103 in 1987. §

1545 (em- of Cokeley v. violation overruled explicitly [N.C.Gen.Stat. 14-72.3].” nale was added). However, evidence phasis 705 S.W.2d State, 288 Ark. that the defendant had initi- S.Ct. demonstrated Cokeley ated sexual intercourse with the victim The L.Ed.2d provided asleep. 41-1803 she was The defendant ar- Ark.Stat.Ann. held that while rape prosecution different offense of two had created just gued one overruling Clay- In the indictment ways of commission. fatal variance between trial, born, presented court held: proof because the proceed had to under the theo- prosecution deci- [Clayborn of our main basis ] “physically help- ry that the victim was crimes of separate two was that sion less,” as described N.C.Gen.Stat. 14- rape by rape exist: sexual 72.3(a)(2), claiming instead of that the activity. We said by deviate against the will” of “by involved force and crimes were two different “... victim, provided as N.C.Gen.Stat. 14- essential elements and the ... 72.3(a)(1). Supreme in that wrong The North Carolina We were differ.” crimes Clayborn disagreed, held that the two and overrule Cоurt regard rape law of the North Carolina sections State.... simply represented two different methods at 426. Cokeley, 705 S.W.2d committing the same crime: of meth- its “one support In crime—two implied in law the common law [T]he two decision, court cited Cokeley ods” so of force and lack of consent elements Arkansas court cases where DWI rape complete as to make crime there is one “unanimously held that showing of sexual inter- upon the mere intoxicated with driving while offense asleep, is person with a who un- course act, violating eithеr ways of two conscious, incapacitated or otherwise while in- controlling a vehicle operating or give not resist or con- therefore could controlling a ve- operating or or toxicated essentially codi- rape statutes sent. Our or alcohol content 0.10% hicle blood rape. the case fy the common law cases, the court In the DWI more.” Ibid. similarly incapacitated sleeping, of a that, defendant was where a had held victim, no difference whether it makes method one charged on violation DWI vaginal alleges that the indictment of the other on evidence convicted *7 against and force the by intercourse was even method, charge was sufficient the merely alleges it will or whether victim’s evidentiary requirements though the incapaci- an with vaginal the Cokeley, 705 are different. subsections tated victim. omitted).2 (citations at 426-27 S.W.2d at 505. 358 S.E.2d 320 N.C. by that a decision also note recent We reasoning of the the agree with We sup- Supreme Court the Carolina North courts, and hold Cokeley Moorman Moorman, In v. result. ports this State statute, Ky.Rev. rape Kentucky the 387, 389, 358 S.E.2d 320 N.C. 510.040, of- provides only onе Stat.Ann. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the de- (1987), alleged an indictment different methods rape with two fense of felo- willfully and “unlawfully, fendant in the statute Coke- Like of commission. carnally know niously did ravish [the all to define will, was drafted ley, in 510.040 against her by victim] force arising only significant issue purposes, the recently Eighth Circuit 2. The Lockhart, interpretations is that the conflicting Cokeley the corpus in case. this cert, [Clayborn filed, (8th Cir.1991), interpretation in petition set out two-offense F.2d 916 However, (1983) 22, 1992). 91-1878), (U.S. State, (No. May ] 647 S.W.2d 433 278 Ark. Supreme Cokeley Court’s reject controlling precedent the time not Arkansas at the did interpretation was peri- statute: throughout Arkansas committed crime charged, convicted. tried and od he prop- position regarding the need take no We Thus, added). (emphasis at 919-20 rape statute. interpretation er Arkansas le- does not affect Eighth Circuit’s decision Indeed, distinctly that matter lies resolution of Supreme by gal the Arkansas established rule province and we state court within the Cokeley. Court For our accept decision court. state rape, by kinds of mode physically whatever unable to communicate unwill- actually act,” method. “It makes nо difference ingness to an may thus be violat- law, victim, to the nor even the defen- rapist ed any without need for the dant, act, how he committed the it is the compulsion.” use of Ky.Rev.Stat. “forcible prohibited.” violation that is defined and 510.010(6), 510.040(1). Ann. This lan- §§ 436, (Hickman, J., Clayborn, 647 S.W.2d at guage would not have necessary been dissenting). convict in the case where rapist uses sufficient force to induce a physi- state of We also believe that this case can be case, helplessness. cal In this if the victim Ford, distinguished from States v. United cert, believed, is to participated Jameson Cir.1989), (6th 872 F.2d 1231 de — сompulsion use of forcible nied, —, that induced 111 S.Ct. Ford, Therefore, a state of unconsciousness. L.Ed.2d 93 In the defendant upon Jameson relied being compulsion,” “forcible posses a felon taking sion of a rather than Septem advantage “physical firearm or about “[o]n However, helplessness.” ber 1987.” evidence presented actually showed that the defen Nor can Jameson contend that the in- possession dant had been of a firearm prevented struction him from presenting a September 28, two occasions well before full defense. Jamеson never denied having 1987; one occasion was seven weeks earli victim, sex with the but stated that she was er, the other was eleven months earlier. “willing participant” in whatever sex oc- This court held that because of evi this curred. Martin’s statements corroborated dence, possession “the essential element of defense, evidently rejected which was was so modified at Ford’s trial as to jury. specific Jameson’s comment amount to a constructive amendment of ... that the willingly participated victim in sex Ford, the indictment.” 872 F.2d at 1236. clearly with him negates any рossibility particularly We judge, noted the trial that he staked his defense on the notion supplemental instruction, told the that the victim was physically helpless and it could convict the defendant if it helplessness that her meant that he was possession found him to have of a of the crime with which was any firearm at time an within eleven-month charged. fact, period. this instruction was the Thus, fatal way flaw found this court. it is in no unfair to convict “[T]he possession Jameson, him, modification of the along ... and Martin even at trial the court constituted a construc if it was for a committed Fоrd, tive amendment of the indictment.” victim was unconscious as a result of the 872 F.2d at 1237. we did not savage beating testified to in this case. In hold that a mere difference between the fact, this result could not even be con- language of the instruction and the indict unfair; theoretically prejudicial sidered er- *8 ment would warrant reversal. Presum speculative assumption ror cannot rest on a ably, supported had the evidence only the may presented that have the defendants charge presented indictment, in the the (which different defense would make their supplemеntal instruction alone would not if perjurious) they actual defense had have constituted a constructive amend jury known of the final instruction. Fur- ment. thermore, possibility there is no that the

Thus, jury have convicted on could Jameson the significantly this case differs from Ford, grounds physically that the victim was presents only as it a difference be- helpless, unless it also concluded that tween the indictment and the the tion, prosecu- than a failure of fists and feet of the defendants caused her rather present helplessness. By regarding tion to his statements support evidence to charge. “physical helplessness” willing participation, lan- the victim’s Jameson guage has added to physically statutes to asserted that victim was not Thus, argue take account of cases in which the helpless. victim Martin cannot now any “is unconscious or for other prejudiced reason is that the instruction Jame-

1547 statements, charged only rape by if indictment defense; be- Jameson’s son’s to the lieved, compulsion. a full defense represented help- physically victim was claim that squarely Thus the are lines drawn. The less. majority acknowledged holds that the dis- record, we are con- Having reviewed crepancy between indict- error occurred. prejudicial that no fident ment and instruction is a mere Clayborn, As stated subject I variance to harmless error. court, is to see appellate an it goal, as would hold that is constructive amend- Our trial, a fair not a exists for system prejudicial per ment which is se. one, prejudice. one free of perfect It is the settled law of this Circuit that deny such a trial are that do Errors “A amendment occurs Especially in cases errors. not reversible the terms of аn indictment are in effect guilt is over- the evidence of where presentation altered of evidence whelming. modify which so instructions (Hickman, J., 647 S.W.2d Clayborn, charged essential of the offense elements dissenting). that there is a substantial likelihood that nature of the of- on our view of Based may have the defendant been convicted instructions, indictment, fense, and the of an offense other than that to defen- prejudice lack of as as the well the indictment.” court’s dant, the district we REVERSE Hathaway, 798 F.2d United v. States corpus. writ of habeas grant of the Cir.1986); (6 see also United States Ford, (6 Cir.1989), 1235-37 TIMBERS, Judge, Circuit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Senior (1990). S.Ct. With dissenting. Circuit, clearly in this I the law so settled majori- join I cannot I regret support for see no need to reach out I do so opinion. cannot ty’s innovative majority courts as the decisions of state precept ignores the fundamental holding. support its novel does a “court law that of federal constitutional unpersuaded by particularly I am to be tried on permit a defendant cannot attempted end-run to majority’s circumvent indict- that are not made Circuit, i.e. char- the settled this law States, 361 ment. ...” Stirone United Kentucky rape statute as acterizing the yet And rape with “only one offense of providing majority has condoned precisely what methods of commission.” two different here. invoked to avoid analysis could be Such appears to be one of first In a case that many under other of convictions reversal Court, majority has impression this grounds provide alternative statutes from the law of Circuit departed conduct. The of criminal prosecution Moreover, it has Supreme Court. me as establish- analysis strikes majority’s Kentucky statute its head the turned dangerous precedent. ing a prosecuted. defendant was under which the court’s order the district I would affirm (1990) pro- Ky.Rev.Stat.Ann. 510.040 corpus condi- of habeas granting a writ degree rape may commit- first vides that right to re- on the Commonwealth’s tioned per- with another ted in sexual stay I would vacate try appellee and ” in sexual compulsion son *9 “forcible was entered more appeal which pending person who is another majority’s re- ago. From the year than added). (emphasis helpless”, “physically so, emphati- respectfully do I fusal to acknowledges the trial majority cally dissent. that it could con- instructed incapa- the victim if it found that vict help- physical because of of consent

ble indict-

lessness, charged in the although not acknowledges It further

ment.