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2007-SC-000128-DG

RENDERED: AUGUST 21, 2008

TO BE PUBLISHED

LACY BEDINGFIELD APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NUMBER 2005-CA-000971

FAYETTE CIRCUIT COURT NO. 95-CR-000866

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE SCOTT

REVERSING

The following appeal comes to this Court upon discretionary review of the

Court of Appeals' opinion affirming the Fayette Circuit Court's order denying

Appellant, Lacy Bedingfield's, motion to vacate his judgment and grant a new

trial . At the outset, we pause to note the procedural path Appellant's case has

taken.

The underlying judgment upon which Appellant's motion rests, concerns

his 1996 conviction of rape in the first degree and of being a persistent felony

offender. As a result of his conviction, Appellant was sentenced to twenty-five

(25) years imprisonment. Appellant appealed his conviction to this Court as a

matter of right, and in an unpublished memorandum opinion of the Court

rendered on September 4, 1997, we affirmed the trial court's conviction.
During the pendency of this matter of right appeal, Appellant filed an RCr

11 .42 motion asserting ineffective assistance of counsel on grounds that counsel

did not adequately pursue DNA testing. Thereafter, this motion was denied by

the trial court and the denial was subsequently affirmed by the Court of Appeals.

On July 6, 2004, Appellant filed a motion requesting release of certain

physical evidence, consisting of the alleged victim's rape kit and other physical

evidence, to be used in forensic testing of the semen samples contained therein .

Appellant alleged that the methodologies of testing minute samples presently

available were not in existence in 1996, and thus the samples would offer new

forensic evidence . The results obtained from the subsequent testing give rise to

Appellant's present motion to vacate judgment and to grant a new trial pursuant

to CR 60 .02, RCr 10.02 and RCr 10.06(l).

Appellant now claims that the results of the DNA testing performed on the

forensic evidence definitively exclude him as the source of the semen recovered

from the alleged victim and, therefore, give rise to sufficient justification for a new

trial based on newly discovered evidence. In order to assess Appellant's claim,

we now turn to the evidence and events which led to Appellant's underlying

conviction.

1 . BACKGROUND

On June 2, 1995, Officers James Stockard and Leroy Richardson were

patrolling a park in the Centre Parkway area of Lexington when they were

approached by a young female, T.B ., wearing only a t-shirt . The officers

observed that T.B. was visibly shaken, hysterical and crying. T.B . repeatedly

stated that she had been raped and that her friend, K.P., may be in the process
of being roped . As other officers and T.B .'s mother arrived, T.B. directed the

officers to the residence of Gwendolyn Bedingfield where she claimed the rape

occurred . When police arrived at the location, they apprehended Appellant as he

was exiting the residence. According to testimony, Appellant,was not wearing a

shirt and was sweating profusely. The police led Appellant to the street where

T.B . identified him as the perpetrator.

After Gwendolyn Bedingfield, who was Appellant's ex-wife, and her

daughter, K.P ., arrived at the scene, T.B . was taken to the University of Kentucky

Medical Center, where she was examined by a nurse and doctor who took

samples from her for a rape kit . T.B. had a contusion on her left cheek and an

abrasion on her right elbow. An examination of T.B .'s vagina discovered her

hymen was not intact but detected no blood . T.B . told the medical professionals

that she had been vaginally raped but claimed that Appellant did not attempt to

touch or penetrate her anus.

After Appellant was arrested, he declined to voluntarily give the evidence

required for the rape Q and thus the officers obtained a warrant compelling

Appellant to submit evidence . Appellant was taken to Central Baptist Hospital

and cooperated fully with the examination until he was told that a swab would be

inserted into his penis . At this point, Appellant objected and became upset,

eventually having to be physically restrained. Testimony from one of the

attending officers indicated that Appellant stated that he would tell them he did it

if they would not insert the swab into his penis. According to the nurse who

performed the penile swab, Appellant said he had consensual sex with T.B . but

claimed he did not know she was underage. Subsequently, Appellant stated that
he made this confession only to prevent the swab from being inserted into his

penis.

Blood, head hair, pubic hair and other samples taken from T.B . and

Appellant were examined at the Kentucky State Police Crime Laboratory.

Significantly, sperm cells were identified in a vaginal smear and a vaginal swab

taken from T.B . during the rape kit examination, but the semen was insufficient to

establish a blood group or to permit DNA analysis. Additionally, semen was

located on certain articles of clothing T.B . was wearing. A comparison of pubic

hair combings from T.B . and Appellant found no hairs from either party on the

other. The Commonwealth's serologist stated that the results of his tests could

not establish that Appellant had engaged in sexual intercourse with T.B.

At trial, T.B. testified for the Commonwealth . During her testimony, she

stated that after school, on June 2, 1995, she and a friend, K.P., met at the Tates

Creek Country Club swimming pool . While the girls were swimming, Appellant

arrived at the pool. When the pool closed, the girls and Appellant went to the

residence of Gwendolyn Bedingfield, K.P.'s mother and Appellant's ex-wife.

Some time thereafter Appellant left for the liquor store and returned with

and drank a bottle of fortified wine. According to T.B., while the girls were

watching television in the den, Appellant entered and sat next to T.B. Appellant

then began to rub T.B.'s calf and thighs. Although T.B. moved her leg and told

Appellant to stop, she testified that Appellant persisted in inappropriately

touching her. Although her testimony on the matter is conflicting, T.B . claimed

that Appellant engaged in oral sex with her on the couch. T.B . and K.P. then

ostensibly went to K.P.'s room and locked the door leaning against it in order to
prevent Appellant from entering. According to T .B ., Appellant shoved his way

through the door and entered the room . T.B. testified that when she refused to

lie down on the bed, Appellant grabbed her by the hair, threw her on the bed, and

ripped off her bathing suit. T.B . then stated that Appellant beat- her in the head

with his fist while he called her derogatory names. T.B . testified that while she

was on her stomach she felt Appellant's penis touch but not penetrate her anus.

T.B. then claimed Appellant threatened her to remain still so he could insert his

penis in her vagina or he would beat her, whereupon he then forced her legs

open and engaged in vaginal rape. Immediately thereafter, he told T.B . to gather

her belongings and leave.

According to T.B .'s trial testimony, as she was collecting her things,

Appellant again grabbed her and took her into another bedroom. T.B . testified

that he told her he "wanted it again," threw her onto the bed and once more

vaginally raped her. Although T.B. testified that she told Detective Basehart

about the second rape before trial, a tape of the interview played for the jury

revealed that T.B . did not tell Basehart about the alleged second rape. When

Appellant got up to go into another room, T.B . ran out of the house, knocking

over a lamp and other items in the process.

Conversely, Appellant maintains that T.B. attempted to seduce him as a

result of a dare by K.P. for T.B . to have sex with Appellant. He contends that he

was sitting in the den when T.B. walked in and began to rub his chest in an

attempt to entice sexual intercourse . Appellant claimed that he became angry

and told T.B . to leave. However, T.B . then went to K.P.'s bedroom where he

overheard her say, "did you do it," whereupon T.B. responded, "no, he wasn't
down for that." Appellant claimed he became irate upon hearing this and

engaged in a physical struggle with T.B. while attempting to eject her from the

house . Appellant was then apprehended as he was leaving the house. At trial,

Appellant testified that he did not have sex with T. B . forcefully -or otherwise .

Subsequently, Appellant was changed and convicted of first-degree rape

and of being a persistent felony offender. Now, Appellant introduces postconviction DNA evidence which conclusively excludes him as the source of the

semen found in the rape kit . Upon a motion for a new trial, the trial court held

that this evidence would not likely change the outcome of the trial with a

reasonable certainty. The Court of Appeals affirmed this decision and we granted

discretionary review.

11 . ANALYSIS

Appellant argues that he is entitled to a new trial and that his motion for

such was improperly denied in light of the exculpatory nature of the DNA

evidence which proves that the semen sample found in the alleged victim's rape

kit did not belong to him.

Preliminarily, we note that this Court has recognized the expansive

advances in technology which have occurred over the course of the past decade

concerning DNA testing technology. As Appellant argues, and we concede,

technological advances in the field now permit testing of minute sample sizes

which were, heretofore, inconceivable even as recently as a few years ago . It is

a recognition of these advances in DNA testing which has led to grants of funding

to the Kentucky Innocence Project though IOLTA - which gave rise to the instant

case -- and various other agencies to aid in testing of unresolved or "cold cases,"
as well as disputed rulings. See Walker v. Commonwealth, No . 2006-SC000480-MR, 2007 WL 2404508, at *1 (Ky. August 23, 2007).

In Walker, we upheld the trial court's conviction of a rapist obtained in

large part, due to newly discovered DNA identification taken from -samples

collected some twenty (20) years prior . In doing so, we noted that advances in

DNA technology allowed for testing of samples from the victim's rape kit which

led to the subsequent positive identification of the unidentified perpetrator of the

unsolved rape and burglary. Id. at *3. This Court in Harris v. Commonwealth,

846 S .W.2d 678, 681 (Ky. 1992) (overruled in part by Mitchell v. Commonwealth,

908 S .W .2d 100, 101-102 (Ky. 1995)), originally turned a cautious eye toward

DNA technology, due largely to its relative novelty at that time and a lack of

consensus among both the legal and scientific community as to how to handle

DNA evidence . Ultimately, we determined, however, that such evidence, though

admissible, would be determined on a case by case basis . Id. Qrr !g~~ United

States v. Two Bulls , 918 F.2d 56, 58 (8th Cir. 1990)) (en bane granted 925 F.2d

1127 (1991)). Nevertheless, in the years subsequent, DNA testing has garnered

nearly unanimous favor in the medical, scientific, and legal communities and has

come to represent the gold standard of genetic identification . See, e .g . , Fu ate

v. Commonwealth, 993 &W.2d 931, 931V937 (Ky. 1999) (overruling Mitchell and

holding that because of the widespread recognition of DNA evidence as valid and

scientifically reliable such evidence was admissible per se).

Noting this evolution as such, we are now faced with the question of what

weight we should attribute to newly discovered, quasi-exculpatory evidence in

the form of DNA data and, thus, whether the post-conviction introduction of such
information warrants Appellant's request for a new trial under these

circumstances .

A. Standard of Review.

RCr,1-0 .02 establishes that the granting of a new trial is warranted in

circumstances wherein a defendant was somehow prevented from having a fair

trial, or if otherwise required in the interests of justice . RCr 10 .02(1). It is well

accepted that the standard for adjudging whether a new trial is warranted based

upon newly discovered evidence is whether such evidence carries a significance

which "'would with reasonable certainty, change the verdict or that it would

probably change the result if a new trial should be granted ."' E .,g_, Collins v.

Commonwealth , 951 S.W.2d 569, 576 (Ky. 1997) (quoting Coots v.

Commonwealth, 418 S.W .2d 752 (Ky. 1967)); see also Caldwell v.

Commonwealth , 133 S.W.3d 445, 454 (Ky. 2004). Likewise, we have

consistently held that evidence which is merely cumulative, collateral, or which

impeaches a nonmaterial witness is insufficient to warrant a new trial . See Foley

v. Commonwealth , 55 S .W.3d 809, 814 (Ky. 2000). Logically, however, the

converse is equally true. When newly discovered evidence is of such a nature

that it is manifest to the conviction, substantially impacts the testimony of a

material witness, or would have probably induced a different conclusion by the

jury had the evidence been heard, then assuredly, the interests of justice

demand that a criminal defendant is entitled to have such evidence set before the

court.
We review the denial of a motion for a new trial to determine whether such

decision was an abuse of discretion . Id. ; Collins , 951 S .W.2d at 576 ; Epperson

v. Commonwealth, 809 S.W.2d 835, 841 (Ky. 1991).

A. Timeliness of Motion for a New Trial

We note that typically RCr 10 .02 motions based upon newly discovered

evidence should be made within one year of the rendering of a final judgment.

However, RCr 10.06(1) allows entry of a motion "for a new trial based upon the

ground of newly discovered evidence . . . made within one (1) year after the entry

of the judgment or at a later time if the court for good cause so permits."

(emphasis added).

Similarly, CR 60.02 permits,

On motion a court may, upon such terms as are just, relieve a

party or his legal representative from its final judgment, order, or

proceeding upon the following grounds: (a) mistake,

inadvertence, surprise or excusable neglect; (b) newly

discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule

59.02; [ten days after judgment] (c) perjury or falsified evidence;

(d) fraud affecting the proceedings, other than perjury or falsified

evidence; (e) the judgment is void, or has been satisfied,

released, or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application ;

or (f) any other reason of an extraordinary nature justifying

relief. The motion shall be made within a reasonable time, and

on grounds (a), (b), and (c) not more than one year after the

judgment, order, or proceeding was entered or taken . A motion

under this rule does not affect the finality of a judgment or

suspend its operation .

(emphasis added). However, as we recognized in Bowling v. Commonwealth,

168 S .W.3d 2, 5 (Ky. 2004), "[u]nlike RCr 10 .06(1) . . . CR 60 .02 contains no

provision for extending the time limit past one year" for reasons of newly

discovered evidence. Yet, as we implicitly noted in Bowling, and as is explicitly

9
present in the rule, justifications under CR 60.02(d), (e), or (f) may be asserted

outside of this one year time frame. See Bowling , 168 S .W.3d at 6 n.3 (quoting

Hartford Accident & Indem . Co . v. Lewis, 296 S.W.2d 228, 231 (Ky. 1956))

.(noting that CR 60.02(f) must be explicitly invoked to be applicable) .

While such consideration is not an issue in the present instance as

Appellant, here, specifically pleaded relief under both RCr 10 .06(1) and CR

60.02(f), we now call into question the efficacy of a rule which fails to

acknowledge that an "extraordinary nature" may likewise exist under CR

60.02(b), such is the case here. An "extraordinary" circumstance under CR

60.02(f) always establishes good cause under RCr 10 .06(1) and thus, if good

cause is shown, a motion for a new trial can be made outside of the one year

limitations period . Here, it should not be overlooked that the DNA technology

which gave rise to this newly discovered evidence did not exist in the time frame

when it could have been timely brought under CR 60.02(b). Despite the

disconnect between the permissive time frame of RCr 10.06(1) and the more

rigid time frame under CR 60 .02, Appellant is permitted to make a .motion for a

new trial because he proceeded under both RCr 10.06(1) and CR 60 .02(f).

Therefore, as Appellant has demonstrated good cause, the one year limitation is

not applicable here.

B. DNA Evidence.

Despite the prevalence of guidance concerning the grant of a new trial, the

circumstance at hand appears to be an issue of first impression in Kentucky. It

would seem that this Court has never thoroughly examined the exculpatory effect

of newly discovered DNA evidence in this context. However, many of our sister

10
jurisdictions, acknowledging the accuracy, effectiveness, and implicit interests of

justice inherent in DNA testing have recognized the exculpatory effect that such

evidence may have in post-conviction criminal proceedings .

In People v. Dodds, 801 N .E.2d 63, 67-68 (Ill . App. Ct. 2003), appellant,

convicted of murder, initiated a motion for a new trial based on newly discovered

DNA evidence . The motion was based, in part, on new "non-match" DNA

evidence removed from blood stains, purported to be the victim's, found on

appellant's pants. Id . In that vein, the appellant argued that, at his trial, the state

relied heavily on the blood evidence as indicative of his guilt . Conversely, the

state maintained that the blood evidence was but one indication of guilt, along

with appellant's confession . Noting the relative novelty of the use of post-trial

"non-match" DNA evidence, the Dodds court defined such evidence as:

Negative or non-match results are those, as in the instant case,

where the results show that the victim was not the source of a

certain sample (defendant's clothing here), but which results do not

necessarily exclude the defendant as the perpetrator. In other

words, although defendant here may have shown that the blood on

his clothing was not that of the victims, this does not rule him out as

the murderer.

Id . at 68 n .2 (citing Comment, Motions for Postconviction DNA Testing :

Determining the Standard of Proof Necessary in Granting Requests, 31 Cap.

U.L.Rev. 243, 264 (2003) (the "absence of DNA does not necessarily mean the

perpetrator was not in contact with the crime scene or victim. Similarly, the

absence of a victim's DNA on a perpetrator or his property does not mean there

was no contact between the two").

Recognizing that post-conviction, newly discovered, non-match DNA

evidence - that which, standing alone, neither explicitly exculpates or inculpates
a defendant - is rarely addressed in case law, the Dodds court sought to discern

the legal significance of such evidence. Id . at 68-69 (citing 31 Cap U. L. Rev. at

245) . In doing so, the court articulated that in order to warrant a claim of actual

. innocence, the evidence should be new, noncumulative evidence which was not

obtainable with due diligence during trial and that would probably induce a

different result upon retrial . Id. at 69.

Similarly, we are now faced with a situation of non-match DNA evidence

discovered years after the alleged commission of the crime. Moreover, what is

likewise noteworthy is that the Dodds court, as in the present instance, reviewed

the newly discovered evidence despite the fact that appellant had already

confessed to the crime. Id. at 67. The court justified its decision by relying on

the compelling exculpatory effect of DNA evidence as well as the dubious nature

of the confession . See id . at 71 .

Likewise, in In Re Bradford , 165 P.3d 31, 32 (Wash. App. 2007), after

serving his full sentence, appellant appealed his rape and burglary convictions

based on newly discovered DNA evidence. Again, the court found that non

match DNA, which did not conclusively exculpate the defendant, supported a

new trial . Using techniques not available at the time of the trial (1995), the

laboratory extracted the DNA of an unidentified male from the surface of tape

used to secure a mask that the perpetrator had forced the victim to wear during

the commission of the crime. Id . at 32-33. Subsequent DNA testing excluded

appellant as a source of the specimen found on the tape . Id. The court, while

acknowledging that this new evidence did not positively exclude appellant as the
person responsible for of the crime, proposed that this new evidence would

minimize the probability that he was the perpetrator. See id .

Similar to Dodds, the Bradford court was faced with the conundrum of

.granting a new trial despite the appellant's confession. Id. . at 32 . . The trial court

below had found that the jury relied heavily on Bradford's confession, but that its

reliability was questionable . Id . 32 . Recognizing that this newly discovered

evidence would probably change the result of the initial trial, the Washington

Court of Appeals determined that this was a question for the jury and that they

should have the opportunity to determine whether the confession was reliable or

not in light of the newly discovered DNA evidence. Id . at 35 .

In Commonwealth v. Reese, 663 A.2d 206, 210 (Pa . Super. 1995), a

convicted rapist was granted a new trial based on newly discovered non-match

DNA from the victim's vaginal smear. Laboratory tests conducted on the sperm

found on the vaginal smear concluded that Reese was not the source of the

semen. Id . The Commonwealth's principal argument on appeal was that the

new evidence did not exculpate the defendant, but merely showed that the victim

and her live-in boyfriend had engaged in intercourse prior to the rape . Id . at 209.

This theory was strengthened by the victim's testimony that she was unsure

whether or not the assailant had ejaculated. Id . Nevertheless, the court

concluded that DNA evidence which excludes a defendant as the donor of

semen may be sufficient to create reasonable doubt sufficient enough to secure

an acquittal . Id . at 208.

In Brewer v. State, 819 So.2d 1169 (Miss . 2002), appellant was granted

an evidentiary hearing to determine if he should receive a new trial . In 1995,

13
appellant was sentenced to death for the rape and murder of a female child . Id .

at 1171 . In 2001, appellant moved for DNA testing to be conducted on certain

evidence. Subsequent testing discovered semen from two unknown male donors

-on the. victim's body; however, the appellant's DNA was not present. Id. at1174.

The circumstantial evidence against appellant was mountainous. He was the

only person with the children during the time period in which the rape and murder

took place; experts testified that the bite marks on the child's body were his; and

a team of dogs, following the scent of his clothing, eventually led them to the site

where the victim's body was found. Id . at 1173 n. 1 . Nevertheless, the court

granted the evidentiary hearing, recognizing the exculpatory nature of the DNA

evidence and finding that the trial court should determine whether it was

sufficient to induce a reasonable fact finder to reach a different result. Id . at

1174.

In the present instance, we are confronted with the stark reality that

Appellant was convicted based, at least in part, on suppositions that we now

know to be fundamentally false: namely, that Appellant was the source of semen

identified from RKs vaginal swab and that taken from her clothing . Moreover,

we simply cannot ignore the permeating and saturating effect that the evidence,

which was construed to identify Appellant as the source of the semen, played in

enhancing the viability and credibility of all of the Commonwealth's arguments.

And although we are mindful of the circumstantial evidence which would seem to

inculpate Appellant, we are likewise heedful of, and troubled by, the numerous

inconsistencies in the testimony and evidence presented at trial .
The semen evidence collected from the rape kit and clothing played a

substantial, if not central, role in Appellant's trial . The Commonwealth focused

on the semen evidence in calling Edward Taylor of the Kentucky State Police

Crime Lab, who testified that trace amounts of semen andsperm cells were

collected from the vaginal smear and the vaghal swabs, as well as from the

clothing. Taylor likewise gave testimony concerning the significance of the blood

type testing and remarked that eighty percent of individuals secrete their blood

type in their body fluids and that both Appellant and T.B.VVere secretors . While

Taylor testified that he could not draw conclusive results from the tests to prove

Appellant as the source of the semen, he gave a detailed explanation as to the

possibility of Appellant's blood type secretions being mixed with T.B .'0 Vaginal

fluid secretions .

Moreover, and of significant import, is the fact that the Commonwealth

argued throughout Appellant's trial that the presence of semen corroborated

T.B.'S allegations that she was raped because she had not had sex with anyone

else that day. In fact, the Commonwealth excused Appellant's contention that

the semen was from a sexual encounter with someone other than Appellant as a

"bizarre theory" given the young age of T.B. and the fact that she had been at

school and at the pool prior to the alleged incident. As to her presence at the

pool, the Commonwealth emphasized this as further evidence that the semen

must have belonged to Appellant, because if it wa0from someone else it would

have been washed away. Likewise, the Commonwealth also argued that the

semen discharge found on T.B.'s pants had to be from recent intercourse .
The foregoing problems are correspondingly buttressed by the numerous

and -troubling testimonial inconsistencies involved in Appellant's trial . The

primary witness, T.B ., contradicted many of her previous statements both during

her testimony .and before trial . Additionally, the only other alleged witness, K.P.,

also gave conflicting and inconsistent accounts. Moreover, it cannot be ignored

that there were serious credibility problems with both of these witnesses. K.P .'s

mother conceded that she "was not very good at telling the truth," and her

testimony would seem to substantiate this conclusion; K.P. had also made at

least three prior false rape allegations against her mother's previous boyfriends .

Similarly, K.P. had just been released from an institution where she was being

treated for depression the day prior to the alleged event.

T.B .'s testimony at trial differed in many regards from the statements that

she gave to Detective Basehart after the rape. T.B . told Basehart in a taped

interview prior to trial that Appellant did not attempt anal intercourse and that she

was never on her stomach during the incident. However, at trial, she denied that

she told Basehart this and testified that she was on her stomach and Appellant

attempted to have anal intercourse with her. T .B.'s trial testimony was similarly

inconsistent with statements she gave to the attending physician at the hospital.

The physician testified that when he specifically questioned T.B. about whether

there was any contact with the anus, she said there was none. Further troubling

is that T.B .'s claim that Appellant engaged in oral sex with her did not surface

until cross examination at trial . Furthermore, T.B . testified on direct examination

that Appellant raped her a second time in a separate bedroom and that she

informed Detective Basehart of this . However, the taped interview with the

16
Detective revealed that no such statement was made prior to trial . When asked

whether Appellant had done anything to her apart from rubbing her that made her

uncomfortable, T.B. mentioned nothing about the alleged oral sex .

. . . . . T.-B . further testified that her one-piece bathing suit was ripped off by

Appellant during the alleged rape. However, when asked on cross-examination

how her bathing suit came off, she said that she wasn't sure and that it must

have fallen off. Moreover, at trial she denied telling Basehart that Appellant

ripped the swimsuit off, though the tape revealed that she, indeed, had done so .

T.B.'s testimony regarding the bathing suit is especially troubling considering that

it was of a one-piece design and T.B. consistently testified that her t-shirt

remained on throughout the encounter.

There are also marked inconsistencies between T.B. and K.P .'s stories.

For instance, K.P. testified that she witnessed the alleged oral sex in the living

room. However, T.B . did not mention the oral sex until cross-examination and

testified that K.P. did not know about the incident in the living room until she told

her in the bedroom. Although K.P. testified that Appellant forced T.B. to allow

him to perform oral sex, she could not explain how Appellant managed to push

aside T.B .'s shorts and bathing suit in order to put his mouth to her vagina . K.P.

also testified that she witnessed the anal intercourse . She stated that T.B . told

Appellant that the anal intercourse was painful and asked Appellant to allow her

to turn around . K.P. testified that Appellant obliged this request and the vaginal

rape occurred when T.B. turned around . As we have noted this is contrary to

T.B's testimony. Assuredly, these testimonial inconsistencies are unsettling
Thus, the circumstantial evidence in this case was far from irrefutable .

Ultimately, the substantive exculpatory nature of the newly discovered DNA

evidence coupled with the blatant testimonial inconsistencies of the material

witnesscs , and, the substantial impact which this newly discovered evidence has

upon said testimony, along with the fact that this evidence would probably induce

a different conclusion by a jury, all serve to warrant a new trial to avoid a

substantial miscarriage of justice . RCr 10.02

III . CONCLUSION

For clarity's sake we emphasize: the presence of sperm which DNA

testing proves did not belong to Appellant does not exonerate him ; however, the

presence of this new evidence does cast a long shadow and assuredly merits

consideration in the form a new trial . It cannot be overlooked that in Appellant's

initial trial, all other arguments were enhanced and corroborated by the

supposition that the sperm found belonged to Appellant. Indeed, this theme was

central to the Commonwealth's prosecution . Because the technology was not

available for Appellant to refute that claim, Appellant was left to rely on his word

against that of the Commonwealth. This new evidence is substantial, if not

pivotal, and we are inclined to believe that it is precisely the type of evidence that

is envisioned by the rule and that may change the result if a new trial were

granted. See Commonwealth v. Tammg, 83 S .W.3d 465, 468 (Ky. 2002); RCr

10.02.

Accordingly, we hereby reverse the Court of Appeals' decision affirming,

vacate Appellant's sentence pursuant to CR 60.02, and grant his motion for a
new trial based upon newly discovered evidence. This matter is therefore

remanded to the trial court for further proceedings consistent herewith.

Minton, C.J ., Abramson, Cunningham, Noble, and Schroder, JJ ., concur.

Venters, J., not sifting . 1 -1 I
COUNSEL FOR APPELLANT:

Melanie L. Lowe

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane Ste . 301

Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

James Daryl Havey

Office of the Commonwealth's Attorney

116 N . Upper St. Ste. 300

Lexington, KY 40507-1161

Traci Courtney Caneer

Office of the Commonwealth's Attorney

116 N. Upper St. Ste . 300

Lexington, KY 40507-1161