RENDERED: DECEMBER 19, 2019 TO BE PUBLISHED

2018-SC-000190-MR

RONALD BULLITT, JR. APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE ANN BAILEY SMITH, JUDGE NOS. 15-CR-003385 AND 17-CR-002971

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE HUGHES AFFIRMING Ronald Bullitt, Jr. appeals from a judgment of the Jefferson Circuit Court convicting him of first-degree rape and imposing a twenty-year sentence. The rape sentence was enhanced pursuant to the jury finding Bullitt guilty of being a first-degree persistent felony offender (PFO I), based on an out-of-state statutory rape conviction. Bullitt contends the trial court erred by 1) denying his motion for a directed verdict on the PFO I charge and 2) denying his motion to suppress his statements to police. Finding no error, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND In December 2015, a female reported that she was raped and robbed at gunpoint in an alley. The police investigated and collected physical evidence, including a condom. The victim identified her assailant in a photo array the next day. That identification led to Bullitt’s arrest a few days later and his interrogation at the police department, which was videotaped.

Bullitt was indicted later that month for committing first-degree rape, first-degree robbery, first-degree wanton endangerment, and possession of a handgun by a convicted felon. After a four-day trial, a jury found him guilty of first-degree rape, but acquitted him of the robbery and wanton endangerment charges; the Commonwealth dismissed the possession charge. The jury recommended a ten-year sentence for the rape conviction, and after finding Bullitt guilty of being a PFO I, recommended he serve twenty years in prison.

The trial court sentenced him accordingly, and this appeal followed. Additional facts pertinent to Bullitt’s claims of error are set forth below.

ANALYSIS I. The Commonwealth Introduced Sufficient Evidence to Permit the Jury to Draw a Reasonable Inference that Bullitt Was Previously Convicted of Committing a Sex Crime against a Minor Kentucky Revised Statute (KRS) 532.080(1) requires the imposition of an enhanced sentence for a defendant found to be a persistent felony offender.

Prior felony convictions from other jurisdictions may serve as the basis for a jury making such a finding. KRS 532.080(2),(3).

A Jefferson County, Kentucky grand jury indicted Bullitt in October 2017 as being a PFO I.1 The grand jury charged, pertinently:

The Commonwealth presented proof during the penalty phase that in October 2010 Bullitt was convicted in Georgia of committing the felony offense of statutory rape and sentenced to twenty years in prison and that at the time of the offense Bullitt was twenty (20) years old.2 The Commonwealth did not introduce evidence of the rape victim’s age beyond the witness’s statement that Bullitt was convicted of statutory rape.

At the close of the Commonwealth’s case, Bullitt moved for a directed verdict on the PFO I charge asserting that the Commonwealth failed to prove Bullitt committed a prior sex crime against a minor.3 The Commonwealth responded that based upon its witness’s testimony, relying on certified copies of Bullitt’s Georgia conviction, a reasonable juror could find that statutory rape is a felony sex crime against a minor. Bullitt claims the trial court erred by

indictment as charged to the instant case in Division 13 for purposes of jury instructions. The PFO I indictment was considered during pretrial negotiations.

Although the calculation was not exact according to Bullitt’s brief, Bullitt did not object or cross-examine the witness. Bullitt’s brief states he was nineteen (19) years old at the time of the offense.

Smith, v. Commonwealth, 410 S.W.3d 160, 165-66 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991)) (internal citations and quotation marks omitted).

KRS 532.080(3) provides the elements for proving a defendant is guilty of being a PFO I. Pertinently, a person is guilty of being a PFO I when he stands convicted of committing one or more felony sex crimes against a minor as defined in KRS 17.500 and the previous felony conviction may include

convictions in any other jurisdiction as long as certain conditions are met.4-5 As to other jurisdictions, KRS 17.500(8)(c) defines “sex crime” as a “felony

offense from another state or a territory where the felony offense is similar to a felony offense specified in [KRS Chapter 510, Sexual Offenses*6].” Although Bullitt does not challenge the sufficiency of the Commonwealth’s proof on any other PFO I element, he argues on appeal that because the Commonwealth failed to prove the age of the child involved in the Georgia statutory rape conviction,7 it did not establish that the Georgia offense is similar to an applicable Kentucky felony statutory rape offense, and thus his PFO I conviction must be dismissed.

Georgia Code Annotated (Ga. Code Ann.) 16-6-3(a) relevantly provides that a “person commits the [felony] offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and

AND (B) That the defendant’s prior conviction was a felony sex crime against a minor.

Having found Bullitt guilty of statutory rape, as pled, the Superior Court’s Final Disposition sentenced Bullitt for that crime and dismissed the other two charges. not his or her spouse.”8 KRS Chapter 510 contains Kentucky’s rape statutes. “[I]t is an element of every offense defined in [KRS Chapter 510] that the sexual act was committed without consent of the victim,” KRS 510.020(1), and such lack of consent includes incapacity to consent, KRS 510.020(2)(b). In terms of age, “[a] person is deemed incapable of consent when he or she is: (a) [l]ess than sixteen (16) years old; [or] (b) [sjixteen (16) or seventeen (17) years old and the actor is at least ten (10) years older than the victim at the time of the sexual act.” KRS 510.020(3). Potentially similar felonies to Georgia’s statutory rape law are Kentucky’s first-, second-, and third-degree rape statutes.9 In pertinent part, these rape statutes provide that a defendant is guilty of: first- degree rape when he engages in sexual intercourse with a child less than twelve (12) years old, KRS 510.040;10 second-degree rape when he, being

1. Is physically helpless; or 2. Is less than twelve (12) years old.

In Commonwealth v. Gadd, 665 S.W.2d 915, 917 (Ky. 1984), this Court observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; it does not require the Commonwealth to affirmatively prove the previous conviction was not obtained by constitutionally impermissible means.

Accord McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994) (“KRS 532.080(2) and (3) require proof of the fact of ‘previous felony convictions’ and not their underlying validity.”). The Gadd Court also declared a defendant must file a pretrial motion to challenge the constitutional validity of a prior felony conviction which serves as the basis for a persistent felony offender charge. 665 S.W.2d at 918. Specifically, the Court stated: [The challenge to the validity of an earlier conviction] is a preliminary matter which is properly presented by a motion that must be made before trial as in [Kentucky Rule of Criminal Procedure (RCr)] 8.18. The defendant is apprised of the previous conviction that will be used against him by the face of the indictment. At this point, he should challenge by motion any conviction so appearing if he has evidence that it was obtained by means constitutionally impermissible. The decision to be made is one which is preliminary in nature. The question of some underlying constitutional invalidity should be raised by the defendant and decided before the trial as a threshold issue to the admissibility of the evidence of conviction at the trial itself.

We have since clarified that collateral review of a prior felony conviction serving as the basis for PFO sentence enhancement is only available when a defendant claims a complete denial of counsel in the prior proceeding. See McGuire, 885 S.W.2d at 937; Commonwealth v. Fugate, 527 S.W.3d 43, 46 (Ky. 2017) (explicitly overruling Gadd, 665 S.W.2d 915, and Dunn v. Commonwealth, 703 S.W.2d 874 (Ky. 1985), to the extent they allow constitutional validity challenges to a prior conviction beyond the complete denial of counsel claim). However, the procedural requirement of a pretrial motion to challenge the prior conviction remains unchanged. See RCr 8.18.

As of 2006, the General Assembly decided that PFO I status may apply to a defendant who has been convicted of committing one or more felony sex crimes against a minor, even if the prior conviction(s) occurred in a foreign jurisdiction. KRS 532.080(3). The General Assembly, however, limited the use of the foreign conviction to crimes which can be deemed similar to a Kentucky crime, particularly those defined in KRS 17.500. Id. This amendment to the PFO statute does not change the Commonwealth’s burden of proof. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Under KRS 532.080(3), proof of Bullitt’s prior conviction for committing a felony sex crime against a minor is “an indispensable element of the PFO charge.” Merriweather v. Commonwealth, 99 S.W.3d 448, 452 (Ky. 2003).

However, Bullitt’s argument on appeal goes beyond his trial motion for a directed verdict, which simply alleged the Commonwealth failed to prove he was previously convicted of a sex crime with a minor. His appellate argument challenges the validity of comparing his prior sex crime conviction in Georgia to a sex crime in KRS Chapter 510.13 Bullitt seeks to characterize the question whether his Georgia crime is similar to a Kentucky crime and may be used for purposes of a PFO I charge — a question of law properly addressed by the trial court before trial — as an element of the PFO status to be proved by the Commonwealth during trial.

Because this legal question regarding the admissibility of evidence was not decided by the trial court, it is not properly before this court for review.

Gadd, 665 S.W.2d at 917. Our review is limited to whether it would be clearly unreasonable for a jury to find Bullitt was previously convicted of a sex crime with a minor. Because a “reasonable inference is sufficient to meet the requirements of the PFO statute,” we must determine if the testimony given by

Black’s Law Dictionary (11th ed. 2019) defines statutory rape as “[u]nlawful sexual intercourse with a person under the age of consent (as defined by statute), regardless of whether it is against that person’s will,” and in turn defines age of consent, pertinently, as “[t]he age, [usually] defined by statute as 16 years, at which a person is legally capable of agreeing to . . . sexual intercourse.” Black’s also cites Rollin M. Perkins & Ronald N. Boyce, Criminal Law 198 (3d ed. 1982), under the statutory rape definition to explain that “[cjarnal knowledge of a child is frequently declared to be rape by statute and where this is true the offense is popularly known as ‘statutory rape,’14

However, an early English statute made it a felony to have carnal although not so designated in the statute.” Unlike Georgia, Kentucky’s statutory language does not use the term “statutory rape,” but nevertheless, “statutory rape” terminology has been present in our caselaw since at least the early 1900s.15 In Kentucky, the age of consent has varied up to eighteen years of age.

See Hodge v. Commonwealth, 53 S.W.2d 186, 187 (Ky. 1932) (“[T]he amendment of 1922 to section 1155 of the Statutes . . . simply raised the age of consent from sixteen to eighteen years.”); KRS 435.100 Carnal knowledge of female child under eighteen with her consent, or of male child under eighteen, repealed effective Jan. 1, 1975; see also Perkins v. Commonwealth, 124 S.W. 794, 795 (Ky. 1910) (“Formerly the age of consent was 12 years, but . . . the statute was amended by substituting the word ‘sixteen’ for ‘twelve.’”). However, since 1975, the Kentucky Penal Code has maintained that a minor is statutorily incapable of consensual sexual intercourse if the accused is age

knowledge with a child under the age of ten, with or without the child’s consent. The rationale was that a child under that age “should be regarded by the law as incapable of giving effective consent.” Several states early on enacted similar statutoiy provisions. However, the English statute was old enough to be encompassed within the common law of the United States, which explains why in early times prosecutions based upon the above rationale were permitted in American states lacking a comparable statute. In either event, this variety of rape came to be known as “statutoiy rape,” apparently because it was originally engrafted onto the common law by statute, and that term is so used even today notwithstanding the fact that now statutes virtually everywhere encompass the totality of the crime of rape.

twenty-one or over and the minor is less than age sixteen, if the accused is age eighteen or older and the minor is under age fourteen, and if the minor is less than age twelve, the accused’s age is immaterial. See KRS 510.140, Commentary; KRS 510.040, .050, and .060.16 The majority of states, like Kentucky, have defined age of consent to be sixteen years old. See LaFave, Substantive Criminal Law, vol. 2, § 17.4(c) (citing P. Robinson 8s T. Williams, Mapping American Criminal Law ch. 23 (2018), noting there are thirty-three jurisdictions that set the age at sixteen, while seven states have opted for age seventeen and eleven others for age eighteen.). “Statutory rape” is not a new concept in Kentucky, or elsewhere. Although the definition of age of consent may have changed over time, with the Kentucky Penal Code’s definitions being in effect since 1975, it is generally understood that one who has committed statutory rape has engaged in sexual intercourse with a minor less than sixteen years old.

A basic legal tenet is that “[e]very person is conclusively presumed to know the law,” Oppenheimer v. Commonwealth, 202 S.W.2d 373, 375 (Ky. 1947), and we believe it is safe to say that tenet certainly applies to most citizens in the Commonwealth when it comes to awareness of the illegality of an adult having intercourse with a minor less than sixteen years old. So common is the understanding that lay people often use the slang term “jail

In the federal courts, the U.S. Court of Appeals for the Ninth Circuit has also crafted a generic federal definition which reflects the common understanding of statutory rape.17 This definition is used to determine if a defendant is subject to sentence enhancement under U.S. Sentencing Guidelines when a state has convicted the defendant of statutory rape.18 In regard to whether statutory rape is a crime of violence, the Ninth Circuit has declared that ‘[t]he term ‘statutory rape’ is ordinarily, contemporarily, and

In order to determine whether the committed state crime is a “crime of violence” which subjects the defendant to the sentencing enhancement, the Ninth Circuit employs the categorical approach crafted in Taylor v. United States, 495 U.S. 575 (1990). Id. at 1119. Under that approach “[a] state’s definition of [the crime] must be compared with the [federal] generic definition of that crime to determine if the defendant’s conviction is a crime of violence pursuant to the Sentencing Guidelines.” Id. (citing United States v. Rodriguez-Guzman, 506 F.3d 738, 743-44 (9th Cir. 2007) (first alteration in original) (internal quotation marks omitted)). The Ninth Circuit created the generic federal definition in Gomez-Mendez to compare it to California’s statutory rape definition. commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute.” Gomez-Mendez, 486 F.3d at 603.

In sum, although it is better practice to introduce a minor victim’s age into evidence as part of the PFO proof, we conclude that “statutory rape” is commonly understood to be the offense of unlawful sexual intercourse with a minor. Consequently, we find that the jury could reasonably infer from the evidence that Bullitt was convicted in Georgia of committing a sex crime against a minor. The trial court did not err by denying Bullitt’s motion for a directed verdict on the PFO charge.

II. Bullitt’s Fifth Amendment Rights Were Not Violated Police officers interviewed Bullitt about the sexual assault accusation the same day he was arrested. Prior to questioning, Bullitt was read his Miranda19 rights. He then signed a waiver and agreed to talk to the police. Before trial, Bullitt moved to suppress his statements to police alleging that during the course of his interactions with them, he made statements on several occasions invoking his right to remain silent but the police did not honor that invocation.20 The trial court denied the motion and segments of the videotaped interview were played at trial.

Notably, Bullitt did not confess to any crimes during his interrogation.

He complains, however, that the violation of his right to remain silent allowed the Commonwealth to use certain of his statements to cast him in a negative light. For example, the Commonwealth played for the jury derogatory statements he made about the victim when shown photos of her. Throughout the interview, Bullitt maintained that he did not rape anyone, did not know the victim, and did not have sex with the victim. However, physical evidence (DNA) indicated that Bullitt had had sex with the victim and the Commonwealth introduced videotaped segments of his denial for impeachment purposes.

Bullitt asserts that introduction of the statements obtained after invocation of his constitutional right to remain silent impacted the verdict, and the trial court erred by denying suppression of his statements to police.

The standard of review for a denial of suppression of evidence is generally a two-step process. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).

First, the trial court’s findings of fact are reviewed under a clearly erroneous standard. Id. Second, the trial court’s application of the law to the facts is reviewed de novo. Id. Bullitt only challenges the trial court’s conclusion of law and we do not otherwise find any clearly erroneous factual findings. Bullitt identifies two statements which he alleges should have been understood by the interviewing officer as the invocation of Bullitt’s right to remain silent. We find neither statement sufficient.

It is well established that a custodial interrogation must cease when a defendant invokes his right against self-incrimination. See Miranda, 384 U.S. 17 at 473-74. However, “a suspect must clearly articulate his desire [to remain silent] in a manner that a reasonable police officer in the situation would understand that the suspect wished for questioning to cease.” Meskimen v. Commonwealth, 435 S.W.3d 526, 531 (Ky. 2013). Furthermore, an invocation may be nullified when the defendant initiates further discussion about the incident. Oregon v. Bradshaw, 462 U.S. 1039 (1983).

Bullitt alleges that he first invoked his right to remain silent after about twenty minutes of questioning by stating “if I’m going to jail, I’m saying, let’s go, you know, that’s all I’m saying, sir. I’m innocent, I’m innocent.” These statements are similar to those analyzed in Quisenberry v. Commonwealth, 336 S.W.3d 19, 33 (Ky. 2011). In Quisenberry, Appellant Williams stated, “Y’alljust need to go on and take me to jail.” Id. This Court concluded that even if Williams meant to invoke his right to remain silent, his remarks were far from unambiguous and just as the officer who conducted the interview testified as to his interpretation, Williams’s statements could be viewed as a concession that the police might as well take him to jail. Id. Bullitt argues that his remarks cannot be interpreted in a like manner.

In this area of the law, the essential question is whether the invocation is clear or ambiguous. As described in Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010), the requirement of an unambiguous invocation provides the interrogating officer necessary guidance as to when the interview must be halted. Bullitt’s statement about being taken to jail did not clearly communicate to the officer that he wanted to remain silent or that he did not want to talk with the police. See id. at 382. We agree with the trial court that Bullitt’s request to be taken to jail, made in the context of expressing frustration with being charged with rape, was not an invocation of the right to remain silent.

The other statement at issue, made after about an hour of questioning, is “I’m done talking . . . whatever y’all got to do, man, y’all do it.” On its own, this statement could be viewed as an invocation of the right to remain silent.

However, Bullitt on his own volition continued to talk about the case by stating “if I was the rapist. . . .” Consequently, the facts of this case are unlike those in Buster v. Commonwealth, 364 S.W.3d 157, 164, 167 (Ky. 2012), in which the officers attempted to persuade the suspect to reconsider her position once the suspect invoked her right to silence, and thereby violated the suspect’s right to have questioning halted. Here, after Bullitt stated that he was “done talking,” he himself continued talking spontaneously about the case. Under these circumstances, Bullitt again waived his right to remain silent and was subject to further interrogation. Oregon, 462 U.S. at 1043. Because Bullitt’s Fifth Amendment rights were not violated, the trial court did not err in denying his motion to suppress.

CONCLUSION For the foregoing reasons, the Jefferson Circuit Court’s judgment is affirmed.

Minton, C.J.; Keller, Lambert, VanMeter, and Wright, JJ., concur.

Nickell, J., not sitting.

COUNSEL FOR APPELLANT: Daniel T. Goyette Louisville Metro Public Defender of Counsel Office of the Louisville Metro Public Defender Jazmin P. Smith Assistant Public Defender Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General Office of the Attorney General