Ed WOMBLES, Aрpellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 91-SC-384-MR.
Supreme Court of Kentucky.
May 14, 1992.
Contrary to the assertions by the Special Fund that an obstructive respiratory impairment, such as is caused by chronic bronchitis or emphysema, does not result from exposure to coal dust, there was evidence in this case that the incidence of chronic bronchitis, as indicated by a depressed FEV1 value, is significantly higher in coal miners than in non-miners. The two physicians who were asked testified that chronic bronchitis is associated both with the inhalation of coal dust and with cigarette smoking. Once the condition is present, continued exposure to coal dust aggravates the condition. There was also medical evidence that when a рerson who is exposed to coal dust also smokes, the degree of obstructive respiratory impairment caused by either type of exposure cannot be differentiated. There was no testimony to the contrary. While Drs. Anderson and Lane attributed claimant‘s obstructive pulmonary impairment to his history of cigarette smoking, they were not questioned about what role his exposure to coal dust may have played in causing the condition. The two physicians who were questioned on this point testified that, regardless of his smoking history, claimant‘s exposure to coal dust wаs a significant causative factor in the respiratory impairment which he exhibited.
In the case at bar, the record contains proof of each of the elements required by
The question then becomes whether or not the entire 75% occupational disability authorized by
Because claimant has proved that he hаs incurred the requisite respiratory impairment, because he has proved that his exposure to coal dust was a medically significant cause of that impairment, and because the Special Fund has not produced evidence that would compel a contrary finding, we hold that claimant‘s entire occupational disability is compensable. The award of benefits pursuant to
All concur.
Chris Gorman, Atty. Gen., Ann Louise Cheuvront, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
SPAIN, Justice.
Ed Wombles, agе fifty-one, was convicted by a Clay County jury on six counts of first-degree rape of his eleven-year-old daughter, Lisa. Wombles received a total sentence of forty years.
Lisa was a fifth-grade student enrolled in special education classes at Manchester Elementary Schoоl. A social worker, Vern Webb, testified that he had worked with Lisa in 1990. Webb described Lisa as having a level of intelligence lower than her chronological age, that she was “immature,” and that she was incapable of specifically describing events. Webb further stated that Lisa was, however, a friendly and easygoing child.
On March 21 and 22, 1990, Lisa appeared to her teacher to be ill and emotionally upset. A classmate informed the teacher that Lisa was having problems. A school counselor was notified by the teacher, who, in turn, contacted the child welfare authorities.
Susiе Adams, a social worker, was assigned to investigate the claims made by Lisa. Lisa, who was in tears and shaking all over, informed Adams that sexual contact with her father took place on four separate days in March, 1990; and that, on two of those days, sexual contact took place twice.
Lisa testified that on March 7, 1990, her dad took hеr into the bedroom at their house, took their clothes off, put her in bed, and crawled on top of her. He then placed his penis in her and started moving. When Lisa‘s mother came in and saw them, she asked what was going on. Ed Wombles got up, closed the door, and stated that he was having sex with his daughter. At trial, Lisa further stated that her father had sexual intercourse with her twice on both March 14 and 15, 1990, with the last time occurring on March 18, 1990.
Wombles first argues that the trial court abused its discretion when it ruled that Lisa Wombles, then age twelve when the trial began, was competent to testify.
The one-day trial was сonducted on March 18, 1991. A competency hearing was requested by defense counsel prior to Lisa‘s testifying. The trial court conducted an in-chambers interview of Lisa in the presence of counsel to determine her competency to testify. Though Lisa incorrectly stated the dаte of the year and could not formulate any lengthy statement, the trial judge found that Lisa knew her birthday by number and month, that she knew the day of the week by number of the month and name of the month, that she knew how many siblings she had, and that she knew the difference between the truth and a lie. The trial judge had verified this lаst finding of fact by showing Lisa a glass of water and telling her it was empty. When asked if this were the truth or a lie, Lisa replied that it was a lie because the glass was half full.
When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. (Citation omitted.)
Whether the testimony is true or not goes toward the credibility of the witness, not her competency to testify. Capps, supra; Travis v. Commonwealth, Ky., 457 S.W.2d 481 (1970). Moreover,
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
We have reviewed the record, including the competency hearing and the testimony of Lisa Wombles, and find that the trial court did not abuse its discretion in finding Lisa competent to testify. Pendleton, supra. The trial court‘s findings of fact are not clearly erroneous and, therefore, are conclusive on the issue.
Wombles next claims that the trial court abused its discretion when it denied
The first witness, Jim Norris (appellаnt‘s first defense counsel), stated that Lisa, accompanied by her mother, sister, and brother, had come to him on July 2, 1990, to recant the story. Norris and Lisa walked to the prosecutor‘s office but neither the prosecutor nor his assistant was available. Norris claims that he subsequently scheduled an appointment with Lisa to tape-record the statement, but she did not come because she had been taken back into the custody of the Cabinet for Human Resources.
A second witness, Elbert May, testified that Lisa had told him that her father was “messing” with her and “trying” to have intercourse with her. May stated that Lisa told him that she was going to tell social services, regardless of whether the allegation were true or not, so that she could be removed from the house.
The jury rejected appellant‘s theory of the case and returned a verdict of guilty on all six counts of first-degree rape in less than one hour.
The standard which the trial court follows in determining whether a directed verdict motion should be granted was enunciated first in Trowell v. Commonwealth, Ky., 550 S.W.2d 530 (1977), and later in Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). We modified this standard in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991), wherein we stated:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If thе 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 unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
We have reviewed the record and find that the trial court correctly denied Wombles’ motion for a directed verdict. The trial court properly submitted the charges of first-degree rape to the jury for their determination. Taking the evidence as a whole, it was not clearly unreasonable for a jury tо find Ed Wombles guilty on six counts of first-degree rape. Benham, supra.
Moreover, the trial court did not abuse its discretion when it denied the appellant an instruction on incest. The trial court properly instructed the jury on first-degree rape and sexual abuse in the first degree. We acknowledge that the trial court is required to instruct a jury on lesser-included offenses when it is so requested and it is justified by the evidence. Martin v. Commonwealth, Ky., 571 S.W.2d 613, 615 (1978). But it has been held that the crime of incest is neither an offense included in rape nor a lower degree of rape because incest includes elements not present in rape. See 41 Am.Jur.2d Incest, section 4 (footnote omitted). “Generally, the offenses included in a charge of incest by sexual intercourse are not the same as those included in a charge of forcible rape because the essential elements of incest do not include force, viоlence, lack of consent, or assault.” Id. at section 3 (footnote omitted). The Commonwealth, in this case, proved that the appellant forced his eleven-year-old daughter to have intercourse with him without her consent on six separate occasions. Consanguinity between the attacker and the victim is not a necessary element of the crime of rape or statutory rape.
Wombles’ final claim of error is also without merit. Wombles claims that the trial court abused its discretion when it sentenced him contrary to the recommendation of the jury. The jury had recommended a twenty-year sentence on each conviction, with the sentences to run concurrently. The trial court imposed a twenty-year sentence on each count and ran counts one, two, and three concurrently with each other but consecutively with counts four, five, and six, for a total sentence of forty years.
The recommended concurrent sentence returned by the jury was no more than a “recommendation,” and is not binding upon the trial court at the defendant‘s final sentеncing.
The judgment of conviction and the sentence of the Clay Circuit Court are affirmed.
STEPHENS, C.J., and COMBS, LAMBERT, REYNOLDS and WINTERSHEIMER, JJ., concur.
LEIBSON, J., concurs in part and dissents in part by separate opinion.
LEIBSON, Justice, concurring in part/dissenting in part.
I concur in the Majority Opinion on the guilt phase of this case.
Respectfully, I dissent as to the penalty phasе because the Court has approved consecutive sentencing where the jury decided concurrent sentences were appropriate. Thus the sentence provided by the jury has been effectively doubled from 20 to 40 years. My reasons for dissenting are the same as stated in my Dissenting Opinion in Dotson v. Commonwealth, Ky., 740 S.W.2d 930, 932-34 (1987).