Opinion
2023-SC-0119-MR
08-22-2024
DENNIS KEITH SIMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Jenny Lynn Sanders Assistant Attorney General
ON APPEAL FROM CASEY CIRCUIT COURT HONORABLE JUDY VANCE MURPHY, JUDGE NO. 22-CR-00020
COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate
COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Jenny Lynn Sanders Assistant Attorney General
OPINION
KELLER JUSTICE A Casey County jury convicted Dennis Keith Sims of two counts of sexual abuse in the first degree. The Casey Circuit Court sentenced Sims to twenty years' imprisonment, consistent with the jury's recommendation. This appeal followed as a matter of right. See KY. CONST. § 110(2)(b). Having reviewed the record and the arguments of the parties, we affirm the Casey Circuit Court.
I. FACTS AND BACKGROUND
Sara lived in an apartment in Casey County with her two daughters, nine-year-old D.C. and seven-year-old Z.C. Sara's father, Dennis Keith Sims, lived in an apartment across the street. In November 2020, Sara contracted COVID-19 and sent her daughters to stay with Sims at his apartment for an indefinite period of time while she recovered. D.C. and Z.C. had previously stayed with Sims multiple times. Sims lived in a one-bedroom apartment that was minimally furnished, and he slept in a full-sized bed. Sara expected that D.C. and Z.C. would sleep in that bed with Sims while he cared for them. Sara developed bronchitis after recovering from COVID-19, and the girls did not return to their home at Sara's apartment until January 2021.
To protect the identity of the minor victims in this case, we refer to their mother simply as "Sara." We will refer to the minor victims as D.C. and Z.C.
When the girls returned home from their time at Sims's apartment, Sara noticed that D.C. was not as "active" as she normally was. Sara testified at Sims's trial that D.C. did not want to be around a lot of people, that she wore baggy clothes, that she would stay in her room, and that she stopped hugging people. Sara testified that D.C. eventually told her that "something" had happened while she stayed at Sims's apartment. Sara testified that D.C. did not share all of the details about what had happened at Sims's apartment because she did not want to talk about it. Sara also testified that she did not want to speak about the subject either because she did not want D.C.'s allegations to be true. However, Sara did testify that after speaking with D.C. she "knew that it had to be reported," but she could not be the one to make a report. She testified that she "couldn't say what [Sims] did or didn't. I couldn't be responsible for him being in trouble for it." Sara contacted one of the elders of her church who spoke with D.C. over the phone and then contacted authorities. Sara was then contacted by Child Protective Services, and the girls were interviewed at the Children's Advocacy Center in March 2021. According to a Forensic Interview Summary prepared by a social worker at the Children's Advocacy Center, D.C. told her interviewer that Sims had taken her pants off in bed and touched her butt with his hand. According to the same summary, D.C. also told her interviewer that she had seen Sims touch and rub her sister Z.C.'s butt.
Kentucky State Police Trooper Billy Begley was assigned to investigate the case in February 2021. Trooper Begley eventually interviewed Sims on August 31, 2021. In that interview, Sims maintained that he did not molest D.C. or Z.C., but he did admit that he had permitted them to sleep naked with him in his bed on one occasion. Sims told Trooper Begley that he got out of the shower and both girls told him that they intended to sleep naked that night. Sims stated that he told the girls to put their clothes on, but they were jumping on his bed, making noise, goofing off, and fooling around. When Trooper Begley asked Sims whether he had touched either one of the girls on their butt or their vagina, Sims replied, "I probably did. I mean like I said they were just goofing off." When Trooper Begley asked Sims whether either of the girls had touched him on his penis or butt, Sims replied, "I'm sure they did, but I don't remember everything that happened." Sims also maintained that after he let D.C. and Z.C. sleep in his bed naked, he took them home the next morning and told them they could not come back to his house.
In January 2022, Sims was eventually indicted and charged with two counts of sexual abuse in the first degree-one count corresponding to each girl. According to Sara, it was only when an officer came to her house with a warrant for Sims's arrest that Sims revealed to her that he had been interviewed by police and that he had permitted D.C. and Z.C. to sleep naked in his bed. Sara testified that Sims told her Z.C. was the one that wanted to sleep naked, that she kept asking, and finally D.C. and Sims caved to Z.C.'s request and all three of them slept naked in Sims's bed together.
At Sims's two-day trial in November 2022, the trial court permitted D.C. and Z.C. to testify in chambers outside of Sims's presence. Z.C. testified that she was nine years old at the time of trial. Z.C. testified that she remembered staying with Sims at his apartment while her mother was sick. Z.C. testified that while she was there, Sims touched the middle of her butt with his hand outside of her underwear. Z.C. testified that she was asleep but woke up when Sims touched her, and that she felt "weird" when Sims did this. Z.C. testified that she did not think Sims touched her on purpose and that she thought he might have been asleep at the time because she heard him snoring. Z.C. also testified that she did not remember ever asking Sims to sleep naked in his bed.
D.C. testified that she was 11 years old at the time of trial. She testified that Sims touched her "down there" on her "veevee" when she was in bed. She testified that Sims had touched her on the inside and outside of her underwear on more than one occasion. D.C. testified that this "felt wrong." D.C. also testified that Sims had touched her on the inside of her body. D.C. testified that she also saw Sims touch Z.C. on her "bad spot" and she tried to get Z.C. to sleep next to her in bed so Z.C. would not have to sleep next to Sims. She also testified that all three of them had slept naked in Sims's bed on one occasion. D.C. testified that she could see Sims's "bad spot" when he slept naked and that it looked "small and disgusting." She also testified that Sims once tried to pull her hand to his "bad spot," and she pulled her hand back. Z.C. testified that she slept on the kitchen floor one night because she did not want to be in the bedroom.
Sims testified in his own defense. He testified that he was 71 years old at the time of trial. He testified that one night while he was watching D.C. and Z.C., he got out of the shower and the girls were both already naked. Sims testified that Z.C. told him they were going to sleep naked, and he responded that they were not and that they should get into bed. Sims testified, however, that he "gave into them" like he always does and just told the girls to be quiet and go to bed. He confirmed that Z.C. and D.C. did not have their clothes on when they got into bed. Sims testified that he had shorts on in bed until Z.C. jerked them down and he pulled them back up. Sims also testified that it was not possible to sleep through the night without touching one another because his bed was too small. Sims explained the prior statements he made to Trooper Begley about touching the girls by testifying that he meant he "could have" touched them while they all slept in bed together. Sims testified that he had previously suffered a "mini stroke" that affected his memory. Sims maintained that he never deliberately touched D.C. and Z.C and they never deliberately touched him.
The jury convicted Sims of both counts of sexual abuse in the first degree and recommended that he serve the maximum 20-year sentence of imprisonment. The Casey Circuit Court sentenced Sims in accordance with the jury's recommendation. Sims now appeals to this Court and alleges several errors occurred throughout his trial that should warrant a reversal of his convictions.
Further facts will be developed below as necessary.
II. ANALYSIS
On appeal, Sims alleges five reversible errors occurred during his trial. First, Sims argues that the trial court failed to administer an oath to the prospective jurors prior to voir dire, and that the trial court's failure to swear in the venire constitutes a reversible error. Second, Sims argues that the trial court abridged his Sixth Amendment right to confront the witnesses against him by erroneously permitting D.C. and Z.C. to testify in chambers outside of his presence. Sims also argues that he was improperly separated from, and unable to communicate with, his attorney during the examination of these witnesses. Third, Sims alleges that the Commonwealth committed a discovery violation by failing to timely proffer evidence of text messages, or "Chirps," that Sims had sent to his daughter Sara while he was incarcerated. Sims argues that the trial court abused its discretion in admitting this evidence. Fourth, Sims alleges that the trial court improperly excluded testimony from Trooper Begley concerning a Child Protective Services investigation into D.C.'s and Z.C.'s allegations. Last, Sims argues that the Commonwealth failed to present sufficient evidence at trial to warrant a conviction of sexual abuse in the first degree as it pertained to Z.C., and the trial court erred in denying his motion for a directed verdict of acquittal.
This Court now affirms the Casey Circuit Court.
A. The trial court's failure to administer an oath to the venire does not constitute error.
On the first day of Sims's trial, the trial court spent most of the morning in chambers with the parties discussing various pre-trial motions on the record. Shortly after 1 p.m., the court was called to order, and the clerk called 32 names to comprise the venire panel of prospective jurors. After the venire panel was seated, the trial court offered some information about the case, introduced the parties, read the indictment, and began some preliminary voir dire examination of its own. The Commonwealth began its voir dire examination around 1:35 p.m., and the defense undertook its own voir dire examination around 2:45 p.m. After voir dire was completed, the jury was seated, and the trial court administered the petit jury oath to the chosen jurors around 3:51 p.m. See KRS 29A.300. At no point prior to voir dire did the trial court administer an oath to the panel of prospective jurors; nor did either of the parties object to the trial court's failure to administer such an oath. Sims now argues on appeal that the trial court's failure to swear in the prospective jurors with an oath was a structural error that requires reversal of his convictions. Because no rule of Kentucky law requires the trial court to administer an oath to the venire, we affirm the trial court.
An "oath" is "[a] solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise." Oath, BLACK'S LAW DICTIONARY (11th ed. 2019). The making of oaths has been a common practice throughout the history of the American judicial system, and some traditional oaths still underpin legal proceedings in this Commonwealth today. Members of the judiciary and the bar are constitutionally required to take an oath to support the Constitution of the United States and the Constitution of this Commonwealth before discharging their duties. KY. CONST. § 228. Before testifying, witnesses are required by statute to "declare that the witness will testify truthfully, by oath or affirmation[.]" KRE 603. The officers in charge of the jury "must be sworn to keep the jurors together, and to suffer no person to speak to, or communicate with, them on any subject connected with the trial, and not to do so themselves." RCr 9.68. Even jurors themselves are statutorily required to "swear or affirm" that they will "impartially try the case between the parties and give a true verdict according to the evidence and the law, unless dismissed by the court[.]" KRS 29A.300.
Similarly, it has long been the traditional practice in this Commonwealth-and throughout the country-that prospective jurors take an oath or make an affirmation, prior to voir dire. See, e.g., Miller v. Commonwealth, 262 S.W. 579 (Ky. 1924) ("A solemn oath is administered to prospective jurors, and they are then subjected to the voir dire examination to bring to light any facts that may constitute grounds for challenge for cause."). The precise form of the voir dire oath or affirmation varies across American jurisdictions, but the common impetus among these oaths is to impart on prospective jurors an obligation to truthfully answer questions regarding their qualifications as a juror. See, e.g., Fla. R. Crim. P. 3.300 ("Do you solemnly swear (or affirm) that you will answer truthfully all questions asked of you as prospective jurors, so help you God?"). Indeed, the Old French term "voir dire" means "to speak the truth." Voir Dire, BLACK'S LAW DICTIONARY (11th ed. 2019). The voir dire examination itself is a means to protect the criminal defendant's Sixth Amendment right to an impartial jury by
exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984).
Despite the importance of the voir dire process, and the continued tradition of administering the voir dire oath in this Commonwealth, this Court can ascertain no applicable rule of law that would require prospective jurors to take an oath of truthfulness prior to voir dire. The same can be said for the federal court system. United States v. Wiman, 875 F.3d 384, 386 (7th Cir. 2017) ("We have found no rule or decision requiring that a venire be administered an oath."). The lack of a voir dire oath requirement in this Commonwealth is particularly telling considering the plethora of oaths discussed, supra, that are required by statute, constitution, or court rule. In the absence of any legal authority requiring otherwise, this Court must conclude that a failure to administer the traditional voir dire oath to prospective jurors does not constitute error. We do, however, recognize the value in the voir dire oath, and suggest that the continued administration of such an oath or affirmation is the best practice in the courts of this Commonwealth.
B. The trial court did not abuse its discretion in permitting D.C. and Z.C. to testify outside of Sims's presence.
Prior to trial, the Commonwealth filed a motion in limine requesting that D.C. and Z.C. be permitted to testify outside of the courtroom-and outside of Sims's presence-via closed circuit television. Sims opposed the motion and argued that allowing the children to testify outside of his presence would impermissibly violate his constitutional right to confrontation. The trial court held a hearing on the matter and heard testimony from the children's mother, Sara, as well as from Sims, regarding the children's alleged inability to testify in front of Sims. The trial court ultimately granted the Commonwealth's motion and permitted D.C. and Z.C. to testify in chambers with only the trial court, the Commonwealth's Attorney, and defense counsel present. Sims and the jury remained in the courtroom and watched D.C.'s and Z.C.'s testimony via closed circuit television. Sims now argues on appeal that the trial court abused its discretion in permitting the children to testify in chambers.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. The Constitution of this Commonwealth similarly guarantees the defendant the right "to meet the witnesses face to face." KY. CONST. § 11. In interpreting our own constitutional provision regarding confrontation, this Court has before stated that Section 11's requirement is congruent with that of the United States Constitution. Commonwealth v. Willis, 716 S.W.2d 224, 227 (Ky. 1986). The right to confront, however, is "not absolute and may be limited to accommodate legitimate competing interests," like the Commonwealth's interest in safeguarding "the physical and psychological well-being of child abuse victims." Sparkman v. Commonwealth, 250 S.W.3d 667, 669 (Ky. 2008); Maryland v. Craig, 497 U.S. 836, 853 (1990).
In situations where a child under 12 years of age is the alleged victim of a sex crime, the legislature of this Commonwealth has accordingly restricted the criminal defendant's confrontation rights by enacting KRS 421.350(2):
The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
The statute, however, "does not provide a blanket process for taking the testimony of every child witness by TV simply because testifying may be stressful." George v. Commonwealth, 885 S.W.2d 938, 941 (Ky. 1994). The United States Constitution requires that the state first make "an adequate showing of necessity" before it abridges the defendant's right to confrontation by procuring the testimony of a child witness via use of a one-way closed circuit television. Craig, 497 U.S. at 855.
The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify[.]"Id. at 855-56 (citations omitted). In consonance with that requirement, Kentucky's statute requires the trial court to make a finding that a "compelling need" exists for such procedures. KRS 421.350(2).
The statute defines a "compelling need" as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." KRS 421.350(5). In determining whether a compelling need exists that would warrant testimony from a child to be taken outside of the defendant's presence, this Court has previously instructed trial courts to consider "the age and demeanor of the child witness, the nature of the offense and the likely impact of testimony in court or facing the defendant." Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998) (quoting Willis, 716 S.W.2d at 230).
A trial court's finding of compelling need and its resulting decision to permit a child witness to testify outside the presence of the defendant is reviewed for an abuse of discretion. Danner, 963 S.W.2d at 634 (Ky. 1998). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Here, the trial court heard sufficient testimony from D.C.'s and Z.C's mother, Sara, regarding the girls' inability to testify in Sims's presence. Sara testified that the girls would not be able to testify near Sims because "they don't want to say anything that will get him in trouble." Sara elaborated with testimony indicating that the girls would not be able to effectively communicate in Sims's presence: "D.C. will just sit there and cry, and Z.C. will mumble and stick her hands in her mouth. They're also embarrassed by it, so they don't want to say it out loud." Sara also testified that D.C. had told her that she could not testify against Sims. Sara testified that D.C. is "already hurt by it, so having to talk about it . . . it's going to hurt her even more."
The trial court also heard competing testimony from Sims. He testified that he had been around D.C. and Z.C. on multiple occasions in the months leading up to his trial. He testified that D.C. had not appeared to be afraid of him and that Z.C. always wanted to be around him. Sara also acknowledged in her testimony that the girls had indeed wanted to see Sims prior to his trial.
Despite any evidence to the contrary, the trial court was presented with unambiguous testimony from D.C.'s and Z.C.'s mother indicating that each of the girls would struggle to articulately testify aloud in Sims's presence. Accordingly, we cannot say that the trial court's finding that a compelling need existed to procure the testimony of those witnesses in chambers was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945. The trial court did not abuse its discretion. These minor victims-age 9 and 11 at the time of trial-were not only expected to testify against their alleged abuser, but against one who was among their closest family members. We cannot second-guess the trial court's conclusion that whatever trauma would be occasioned by such face-to-face testimony would indeed rise to the level of "serious emotional distress." KRS 421.350(5).
C. Sims was not deprived of the effective assistance of counsel while briefly separated from his defense counsel.
Just prior to D.C.'s and Z.C.'s testimony in the trial court's chambers, Sims objected that he would be separated from, and thus unable to communicate with, his defense counsel during the examination of those witnesses. The trial court overruled Sims's objection and stated that it would permit Sims to take notes on the witnesses' testimony using pen and paper while he was seated in the courtroom, and that he could confer with his counsel during D.C.'s and Z.C.'s testimony. The trial court specifically told defense counsel that, "[Sims] can have a notebook and pen out here. After you all question the children, I'll give you an opportunity to come and confer with him and ask more questions if you have more." Sims now argues on appeal that the Sixth Amendment guaranteed him the right to maintain "constant audio contact" with his attorney during D.C.'s and Z.C.'s testimony.
We surmise that any constitutional error occasioned by a denial of constant communication with one's counsel would most appropriately be couched as a violation of the defendant's right to the effective assistance of counsel. The Sixth Amendment states that, "In all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defence." U.S. CONST. amend. VI. "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970) (emphasis added).
As support for his contention that he maintained a right to be in constant audio contact with his attorney during the examination of witnesses, Sims relies most predominantly on two of this Court's prior decisions involving the implementation of the procedures in KRS 421.350. Nearly 40 years ago, in Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986), this Court considered the constitutionality of a prior version of KRS 421.350 as it existed at the time. In holding that the statute did not run afoul of the Confrontation Clause, this Court expressed concern that in employing the statute the
Commonwealth should be required to persuade the trial judge that such is reasonably necessary and provide the technical details whereby the testimony will be taken with the child screened from the sight and hearing of the defendant while at the same time the defendant can view and hear the child and maintain continuous audio contact with defense counsel.Willis, 716 S.W.2d at 227 (emphasis added). The issue of whether constant audio contact with one's attorney is essential to the right of effective assistance of counsel, however, was not before this Court in Willis. A review of our decision in that case further makes clear that we failed to support our conclusory statement with any meaningful legal reasoning. As such, we do not treat Willis as binding precedent on the issue of whether constant audio contact with one's attorney is essential to maintain the effective assistance of counsel. See Cawood v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952) ("A statement in an opinion not necessary to the decision of the case is obiter dictum.").
Roughly 15 years later, in Price v. Commonwealth, 31 S.W.3d 885 (Ky. 2000), this Court was tasked with considering whether a trial court had properly complied with the procedures set forth in KRS 421.350 so as to preserve the defendant's constitutional rights. During the testimony of an alleged minor victim, the defendant was excluded from the courtroom and required to view the witness's testimony on a monitor in another room. Id. at 892. The defendant was given a legal pad and a pen with which to take notes, and was advised that if he wished to consult directly with his attorney he should notify the bailiff, who would then notify the judge. Id. The judge would then stop the trial and permit the attorney to leave the courtroom to consult with the defendant. Id. On appeal, the defendant placed directly before the Court the issue of whether his Sixth Amendment right to the effective assistance of counsel was violated when he was denied "continuous audio contact" with his counsel. Id. at 893. This Court held that error occurred when
Appellant was not in continuous audio contact with his defense counsel. No argument is made that the technology to accomplish this purpose is unavailable. If that argument were made, the
response would have to be that the statutory procedure is unavailable until and unless the technology is available. (Apparently, it is available in Maryland. Maryland v. Craig, supra, at 842, 110 S.Ct. at 3161.)Id. at 894.
In Price, it appears that this Court did condition the constitutional use of the procedures prescribed in KRS 421.350 on the defendant's ability to remain in "continuous audio contact with his defense counsel." Id. However, this Court, again, failed to support its holding with any thorough legal analysis. The only support for our limited holding appears to be that the state of Maryland ensured the use of continuous audio contact technology in its own statutory scheme related to child witness testimony. See Craig, 497 U.S. at 841-42. The issue of whether the defendant's lack of continuous audio contact with his attorney violated his right to effective assistance of counsel was not before the Supreme Court in Craig. We, therefore, assign little precedential value to our conclusory holding in Price.
Instead, we undertake our own analysis and hold today that Sims did not suffer a "complete denial" of the assistance of counsel where the trial court failed to ensure that he maintained constant audio contact with his attorney during the examination of witnesses. Sims's opportunity to consult with his counsel before dismissing D.C. and Z.C. as witnesses ensured that he received the effective assistance of counsel.
"In the vast majority of cases, to succeed on a claim of ineffectiveness of counsel, a defendant must show: (1) deficient representation by counsel, and (2) resulting prejudice to the defense." Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel." United States v. Cronic, 466 U.S. 648, 658-59 (1984). Where the government completely denies the defendant the assistance of counsel "at a critical stage of his trial" it violates his rights under the Sixth Amendment and renders his trial unfair. Id. at 659. "[A] complete denial of counsel occurs in one of two situations: 'when counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.'" Tigue, 459 S.W.3d at 385 (quoting Cronic, 466 U.S. at 659 n.25).
Relevant to the issue at hand, the Supreme Court has held that a trial court's obstruction of the defendant's communication with his counsel can result in an unconstitutional denial of the right to effective assistance of counsel. Geders v. United States, 425 U.S. 80, 91 (1976). In Geders, the Supreme Court considered the constitutional implications of a trial court order that barred the criminal defendant from having any communication with anyone, including his counsel, during an overnight recess between his own direct and cross-examination. Id. at 82. The trial court's attempt to limit improper influences on the defendant's testimony was plainly at odds with the defendant's constitutional right to consult with his counsel during the course of trial. Id. at 88-91. Despite recognizing the trial court's broad authority to sequester witnesses, the Supreme Court held that the "sustained barrier to communication" between the defendant and his attorney impermissibly burdened the defendant's Sixth Amendment right to effective assistance of counsel during a time when the accused would normally confer with his counsel. Id. at 91.
When faced with a similar case involving a shorter 15-minute bar on attorney-client communication between the defendant's direct and crossexamination, the Supreme Court, however, held that the government had not deprived the defendant of the effective assistance of counsel. Perry v. Leeke, 488 U.S. 272, 284 (1989). The Supreme Court stated that the defendant, like any other witness, did not enjoy a constitutional right to consult with his counsel while he was testifying, and that "it was appropriate to presume that nothing but the [defendant's] testimony" would be discussed during such a short, 15-minute recess. Id. Relevantly, the Supreme Court distinguished its prior holding in Geders by reasoning that any communications between the defendant and his attorney during the 17-hour overnight recess in Geders "would encompass matters that go beyond the content of the defendant's own testimony-matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain." Id. (emphasis added). The Supreme Court stated that the criminal defendant generally has the "right to unrestricted access to his lawyer for advice on a variety of trial-related matters." Id.
The Supreme Court, however, has never interpreted the Sixth Amendment to guarantee the right to constant, continuous, or contemporaneous contact with one's counsel at all stages of trial. In fact, few courts have ever had occasion to consider the constitutional ramifications of a trial court's interference with the defendant's ability to consult with his counsel, and those decisions that have addressed the subject are not binding on this Court.
This Court, examining the issue itself for the first time, is cognizant of the Sixth Amendment concerns occasioned by the statutory procedures of KRS 421.350. During D.C.'s and Z.C.'s testimony, the statute permitted that Sims remain in the courtroom, unable to contemporaneously communicate with his defense counsel who was in another room. Such an arrangement is unquestionably a departure from the typical trial procedure whereby the defendant remains seated at the counsel table, in close proximity to his attorney, as counsel for both parties examine the witness.
Even during a conventional trial, however, we could hardly expect the criminal defendant to always maintain constant, continuous, or contemporaneous audio contact with his counsel. There are of course times when counsel will routinely be separated from, or unable to immediately communicate with the defendant, for instance: when counsel approaches the bench, when counsel addresses the jury, or even when counsel takes the lectern to question a witness. The criminal defendant's ability to communicate in real-time with his counsel is regularly obstructed throughout trial, and the trial court's limited restriction in this case is not materially different.
Despite the limited barrier to his contemporaneous communication with his counsel, we are certain that Sims did not suffer a complete denial of his right to effective assistance of counsel, because the trial court aptly afforded Sims an adequate opportunity to communicate with his counsel. Although KRS 421.350 did not require so, the trial court provided Sims the means to take notes as well as the opportunity to consult with his counsel during the witnesses' testimony. The video record is unclear as to whether Sims or his counsel actually availed themselves of this opportunity, but the record does reveal that the trial court at least once explicitly requested that defense counsel return to the courtroom to confer with Sims before dismissing a witness.
What communication Sims and his counsel might have had if they were not otherwise separated during the actual direct and cross-examination of the witnesses cannot be known, but we are certain that delaying that communication until a break in examination is not the kind of presumptively prejudicial error the Supreme Court spoke of in Cronic. 466 U.S. at 658-59. Whatever matters pertaining to his defense that Sims may have sought to discuss with his counsel could have certainly been meaningfully addressed when counsel returned to the courtroom. However, we must make clear that trial courts employing the procedures available to them under KRS 421.350, should always attempt to foster an open communication between defense counsel and defendant; requests for leave to consult with one another should be liberally granted.
Here, we cannot say that Sims's Sixth Amendment right to the effective assistance of counsel guaranteed that he be in constant audio contact with his counsel during D.C.'s and Z.C.'s testimony. The trial court did not violate Sims's Sixth Amendment rights.
D. The trial court did not abuse its discretion in crafting a remedy to the Commonwealth's discovery violation.
On the first day of trial, after the jury had been seated, Sims brought the trial court's attention to an alleged discovery violation. Sims's defense counsel stated that the Commonwealth had recently produced 167 pages of "Chirps"that Sims had sent while he was incarcerated and awaiting trial. Defense counsel objected to the fact that he had allegedly received these discovery documents 15 hours before trial and did not have time to discuss them with his client. The Commonwealth stated that it did not intend to introduce all 167 pages of the discovery into evidence and maintained that Sims had received some of the discovery multiple days before trial.
Chirps are a means of communication between jail inmates and their friends and family that are similar to text messages.
The following day, the trial court again heard arguments from the parties regarding the admission of Sims's Chirp messages. The Commonwealth stated that it planned to introduce two Chirps-one that Sims had sent on February 23, 2022, and one that he had sent on March 1, 2022. The February Chirp reads as follows:
We will refer to these messages collectively as the "February and March Chirps."
Good morning. Shanna is in Columbia one hour behind us. Please call her and explain I cant afford a lawyer and tell her how Im in here because of a stroke and
didnt have the ability tp think right. I have never hurt the girls and I never wpuld have if they had not started the whole thing. I am sorry it happened. I lov
them and if I cant be arpund them it will break their heart and mine. Let me know you have talked to her or what is going on. I love you guys.
The March Chirp reads as follows:
Tell [D.C.] I am sorry about this. My mind isnt right and I didnt have control of myself. It is not her falt and she should not feel bad over it. I love her.
It hurts me when she cries. I ho
Pe she doesnt blame herself for me being in here
The Commonwealth contended that it had produced the March Chirp on November 9, 2022-eight days prior to trial. Sims's defense counsel stated that he was away from his office for a number of days when the March Chirp was produced, and he was responsible for not reviewing it in a timely manner. He specifically stated that, "I wasn't here . . . I mean, I can't object to that. I may not have been in my office, but I'm responsible for that." The Commonwealth conceded that it had produced the remaining Chirps, including the February Chirp, the day before trial.
The trial court, after hearing the arguments of the parties, ruled that the February and March Chirps were admissible at trial, but excluded the remaining pages of Chirps. Prior to making its ruling, the trial court also offered Sims more time during the lunch break to assess the Chirps. The trial court was persuaded to admit the Chirps, at least in part, by the fact that they were evidence of Sims's own prior statements. The trial court stated on the record that Sims could not be surprised by his own statements. Sims now argues on appeal that the Commonwealth was required to produce the February and March Chirps more than a day in advance of trial-pursuant to Kentucky Rule of Criminal Procedure (RCr) 7.24(1) and local Adair and Casey Circuit Court Rule 8.1b-and that the trial court erred in failing to exclude the Chirps from evidence.
RCr 7.24(1) states in part:
Upon written request by the defense, the attorney for the Commonwealth shall disclose the substance, including time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody, or control of the Commonwealth[.]
As a preliminary matter, this Court is unsure as to whether Sims ever made a "written request" for the kind of discovery materials contemplated by RCr 7.24(1). No such request appears in the written record. Further, no discovery order issued by the trial court appears in the written record. Without such a developed record, it is difficult for this Court to state definitively whether the Rules of Criminal Procedure placed the Commonwealth under any affirmative obligation to produce the discovery materials that Sims now contends were admitted in error. Regardless, in their briefs, both parties seem to operate under the assumption that the Commonwealth had an obligation to produce the February and March Chirps and that at least the February Chirp was untimely produced. For purposes of this analysis only, we will assume that the Commonwealth did commit a discovery violation in contravention of RCr 7.24(1) by failing to timely disclose the February and March Chirps. Even assuming so, this Court cannot say that the trial court abused its discretion by admitting the February and March Chirps into evidence.
We are aware, however, that some jurisdictions, by local rule, require that some discovery materials be affirmatively produced absent a written request from the defendant. See, e.g., KY R JEFFERSON CIR CT Rule 803 (The Commonwealth may provide discovery to the Defendant on the day of arraignment, but shall provide no later than ten (10) days prior to the first pretrial conference, the following . . . Written or recorded statements or confessions made by the Defendant(s), or copies thereof, that are known by the attorney for the Commonwealth or its agents[.]). In his brief, Sims references local Adair and Casey Circuit Court Rule 8.1b, which states: "The Commonwealth Attorney is to provide discovery to the Defendant's Attorney at least 7 days prior to the pre-trial conference." We assume that the 29th Judicial Circuit has followed suit of other jurisdictions that require the Commonwealth to make affirmative discovery disclosures.
If a party does commit a discovery violation under RCr 7.24(1), the criminal rules leave the remedy for such a violation to the discretion of the trial court. RCr 7.24(11) states that when a party fails to comply with RCr 7.24, the trial court may "direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as may be just under the circumstances." Accordingly, the exclusion of the two February and March Chirps was but one potential remedy left to the discretion of the trial court. We review the trial court's ruling remedying the discovery violation for an abuse of that discretion. Stieritz v. Commonwealth, 671 S.W.3d 353, 368 (Ky. 2023) (citing Gray v. Commonwealth, 203 S.W.3d 679, 685 (Ky. 2006)). A trial court abuses its discretion when its "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
Taking into consideration the relative length of the two February and March Chirps-a mere few paragraphs-and the length of time they were available to Sims prior to their admission, we cannot say that the trial court abused its discretion in declining to exclude them from evidence despite any untimely production. Rather than exclude the two Chirps from evidence, the trial court offered Sims more time during the lunch hour to review them, with the understanding that the Commonwealth would not seek to introduce them until later in the afternoon. Further, immediately after the trial court made its ruling on the admissibility of the Chirps, the video record likewise reveals that the Commonwealth furnished the defense with a hard copy of the Chirps, and Sims and his defense counsel can be seen conferring at counsel table. It would be another five hours before the Commonwealth actually sought to admit the Chirps-over 48 hours after Sims first had access to them. We note that when the Commonwealth did finally seek to admit the Chirps into evidence, the trial court asked Sims whether he had any objection to their admission, and defense counsel responded in the negative. We also emphasize that Sims did have access to the February and March Chirps during the overnight break between the first and second days of trial, and the Commonwealth had stated that it did not intend to admit all 167 pages of Chirps it had given the defense.
We do take this opportunity, however, to make clear that we do not place as much weight as the trial court did on the fact that the evidence sought to be admitted was evidence of Sims's own prior statements.
That the statements were Appellant's own is immaterial. The premise underlying RCr 7.24(1) is not only to inform the defendant that he has made these statements, as he should be clearly aware, but rather to inform the defendant (and to make sure his counsel knows) that the Commonwealth is aware that he has made these statements.Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky. 2008).
Our holding should not be construed as to grant the Commonwealth license to withhold the defendant's own incriminating statements in violation of the discovery rules when those statements appear minor to its case or easily digestible for the defense. Rather, "[t]he overarching purpose of our criminal discovery rules is to prevent '[a] cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused.'" Stieritz, 671 S.W.3d at 368 (quoting James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972)). Our holding, however, is rooted in the reality that those same discovery rules entrust the trial court, as gatekeeper of the evidence, with the discretion to fashion a fair and just remedy to discovery violations. We cannot say that the trial court's remedy was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
E. Sims did not properly preserve his argument regarding the exclusion of hearsay testimony.
Sims next alleges that the trial court committed a reversible error when it excluded evidence from Trooper Begley's testimony that it deemed to be hearsay. We review the trial court's evidentiary rulings for an abuse of discretion. Goodyear Tire &Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
On Sims's cross-examination of Trooper Begley, defense counsel inquired into whether Trooper Begley had communicated with any of the social workers from Child Protective Services who had previously investigated D.C.'s and Z.C.'s allegations against Sims. Trooper Begley stated that he had received a report from Child Protective Services, and that he "may have talked to them off and on." According to Trooper Begley, those social workers also attended D.C.'s and Z.C.'s interviews at the Children's Advocacy Center, as did he. Defense counsel continued along a line of questioning concerning Child Protective Services and the following exchange occurred:
Defense counsel: Alright. And you also considered not only the forensic interview down there, but you also considered social workers at . . . Children's Advocacy Center or social workers, their investigation?
Trooper Begley: We work side by side. Yes, sir.
DC: Alright. Now the allegations were considered by the social workers . . .
At this point, the Commonwealth objected on hearsay grounds and argued that Trooper Begley could not testify as to what the social workers considered. A bench conference ensued. While approaching the bench, defense counsel stated that "the jury needs to hear what the social workers investigated." At the bench conference, defense counsel stated that the social workers who investigated D.C.'s and Z.C.'s allegations had "unsubstantiated" those allegations. We assume that this statement is the statement that defense counsel sought to admit via Trooper Begley's testimony. Defense counsel also stated that he wanted to know whether Trooper Begley had considered the social workers' report. The trial court responded that Trooper Begley could not state that the social workers had unsubstantiated the girls' allegations. In response, defense counsel argued that the Commonwealth had a duty to protect the innocent, and that he failed to call the social workers as witnesses. Defense counsel stated that he thought the social workers needed to be at the trial to testify. However, defense counsel admitted that he also had not subpoenaed those potential witnesses. At the conclusion of the bench conference, the trial court stated that there was no way to get into what the social workers had said, but defense counsel could ask Trooper Begley what he had considered during his own investigation. This Court interprets the trial court's statements at the bench conference as ruling that the defense could not elicit hearsay testimony from Trooper Begley repeating what the social workers had said in their report, including the conclusion of that report.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." KRE 801(c). Hearsay is generally inadmissible at trial. KRE 802. Out of court statements that are not offered for their truth, however, are considered non-hearsay and may be admissible at trial. Sims now contends on appeal that he was attempting to elicit the social workers' prior, out of court statements from Trooper Begley, not for their truth, but to prove that Trooper Begley was aware of these statements and his own investigation was "onesided" by virtue of his failure to consider the statements. We conclude, however, that Sims failed to properly make this argument before the trial court, and we decline to entertain the argument now on appeal. "[S]pecific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal." Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), abrogated on other grounds by Nami Res. Co., L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018).
At no point during the parties' bench conference did defense counsel make a precise argument that he was attempting to offer the social workers' statements in their report for some reason other than the truth of the matter asserted-that the children's allegations were unsubstantiated. Rather, it appears to this Court that defense counsel took issue with the Commonwealth's decision not to call those witnesses to testify. If it was, in fact, defense counsel's intention to introduce the social workers' out of court statements for some other purpose than their truth, we certainly cannot fault the trial court for not recognizing that legal issue among defense counsel's arguments. We cannot say that the trial court's decision to exclude this evidence was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.
F. The trial court did not err in denying Sims's motion for a directed verdict.
Sims next argues that the trial court erred in failing to grant his motion for a directed verdict of acquittal as to the charge of sexual abuse in the first degree that pertained to Z.C. Sims specifically argues that the Commonwealth failed to present sufficient evidence of the essential element of "sexual contact."
This Court made its directed verdict standard clear in Commonwealth v. Benham:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the 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 purposes 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.816 S.W.2d 186, 187 (Ky. 1991). "So long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant's motion for directed verdict should be denied." Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020). "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Benham, 816 S.W.3d at 187.
"A person is guilty of sexual abuse in the first degree when . . . [h]e or she subjects another person to sexual contact who is incapable of consent because he or she . . . [i]s less than twelve (12) years old[.]" KRS 510.110(1)(b)2. At the time of Sims's trial, "sexual contact" was defined as, "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party[.]" KRS 510.010(7) (2021) (prior to the 2023 amendment).
Relevant to whether the Commonwealth presented sufficient evidence that Sims had touched Z.C.'s "sexual or other intimate parts," Z.C. testified at trial that Sims touched her "butt" with his hand on two different occasions while she slept in his bed. Z.C. specified that Sims touched her "right in the middle" of her butt. Z.C. also testified that she thought she was wearing only her underwear when Sims touched her, and that he touched her on the outside of her underwear. Z.C. testified that Sims's contact with her butt lasted "like two seconds."
Z.C.'s own testimony was supported in part by D.C. who testified that she saw Sims touch Z.C.'s "bad spot" while the three were in bed together. The jury was also presented with a summary of D.C.'s Forensic Interview at the Children's Advocacy Center in which D.C. stated that she saw Sims touch and rub Z.C.'s butt.
The jury also heard several potentially incriminating statements that Sims himself had made during his recorded interview with Trooper Begley. When Trooper Begley asked Sims whether he had touched either of the girls on their butt or vagina, Sims responded, "I probably did. Like I said they were just goofing off." When Trooper Begley later asked Sims again whether he had touched either one of the girls or both, Sims responded, "Probably. Yeah." When Trooper Begley asked Sims a third time whether he had touched either one of the girls on their butt or vagina, Sims responded that he did not know.
As previously stated, KRS 510.010(7) required the Commonwealth to prove that the defendant touched the victim "for the purpose of gratifying the sexual desire of either party." Relevantly, Z.C. testified that she could not tell whether Sims was asleep at the time he touched her butt, but she thought he was asleep because she heard him snoring. When asked whether Sims touched her on purpose, Z.C. responded she did not think so, "but it might be." Z.C. did testify, however, that the incidents woke her up and that it was "uncomfortable" and "felt weird" when Sims touched her butt.
D.C. testified that when she witnessed Sims touch Z.C., he was positioned in the middle of the bed. D.C. further testified that she attempted to get Z.C. to sleep next to her on the side of the bed so that Sims would have to go over her to touch Z.C. According to D.C., she did this because she wanted to protect her sister. The summary of D.C.'s Forensic Interview also reveals that she told her interviewer that she did not like when she saw Sims touch Z.C., and that "she tries to forget about it and think it is a dream because she does not like it." We also emphasize that D.C. told her forensic interviewer that Sims not only touched Z.C.'s butt, but that he also rubbed her butt. From this evidence, the jury could have certainly inferred that Sims acted purposefully with the intent to touch Z.C.'s butt.
There was also other testimony admitted at trial that was relevant to prove Sims acted purposefully when he touched the girls. D.C. testified that Sims once tried to pull her hand toward his "bad spot," and she pulled it back. D.C. also testified that on at least one occasion Sims touched her inappropriately and she thought he was awake. Confronted with evidence of multiple purposeful acts of inappropriate touching, it would not have been unreasonable for the jury to infer that when Sims touched Z.C.'s butt he did so intentionally, for the purpose of gratifying his sexual desire. Id.
We conclude that the above evidence amounted to more than the "scintilla" of inculpatory evidence needed to defeat Sims's motion for a directed verdict at the trial court. Taylor, 617 S.W.3d at 324. It would then follow that we cannot say it would be "clearly unreasonable" for the jury to have found Sims guilty of sexual abuse in the first degree. Benham, 816 S.W.3d at 187. The trial court did not err in denying Sims's motion for a directed verdict of acquittal.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Casey Circuit Court.
All sitting.
VanMeter, CJ; Bisig, Nickell and Thompson, JJ, concur Lambert, J, concursin result only by separate opinion in which Conley, J., joins.
LAMBERT, J., CONCURRING IN RESULT ONLY
I concur with the Majority's Opinion except for one issue. In contrast to the Majority, I conclude that the Commonwealth, relying on the mother's testimony, did not meet its burden under KRS 421.350(2), and consequently, the trial court abused its discretion by permitting D.C. and Z.C. to testify outside of Sims' presence. However, I conclude that the error was harmless.
KRS 421.350(2) allows the testimony of a child sex abuse victim to be taken outside the presence of the defendant if a compelling need is shown. A compelling need is defined as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." KRS 421.350(5). Craig, 497 U.S. at 856, instructs that statutes like KRS 421.350 are concerned with the child witness being traumatized by the presence of the defendant and that the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than "mere nervousness or excitement or some reluctance to testify." Summarizing the mother's testimony, the children remained affectionate with their grandfather, were not afraid to be in the same room with him, were embarrassed to talk about the abuse, and did not want to get their grandfather in trouble. The testimony does not support the trial court's implicit finding that a compelling need existed, i.e., that rather than experiencing a level of discomfort because of embarrassment or not wanting to get their grandfather in trouble, the children would be traumatized by testifying in their grandfather's presence. See Danner, 963 S.W.2d at 635.
The transcription of the testimony is provided in the last footnote of this separate opinion. In the transcription, the child's initials are substituted in place of her name.
The Commonwealth suggests that the mother's testimony relating to the likely impact on the girls, if they were required to testify in front of their grandfather, should be looked at in the context of the avoidance the family engaged in from the time the allegations of abuse were made and throughout the criminal investigation. For example, the Commonwealth points to Sara's trial testimony that after D.C. initially disclosed the abuse to her, Sara did not speak to D.C. about it again because D.C. did not seem to want to talk about it, and Sara was glad because she didn't want to talk about it either. While the Commonwealth offers that testimony or evidence not included within the KRS 421.350 hearing may also be considered to determine whether a compelling need existed for the child witness to testify outside of the defendant's presence, our review rests on the KRS 421.350 hearing testimony. The mother's testimony is not clear that the children could not have communicated effectively and would have suffered serious emotional harm if required to testify in the presence of Sims.
Nevertheless, violations of the confrontation clause of the Sixth Amendment under the United States Constitution and Section 11 of the Kentucky Constitution are subject to a harmless error analysis. See Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988). Harmlessness in this instance "must . . . be determined on the basis of the remaining evidence." Id. at 1022. Based on the remaining evidence, there does not appear to a likely possibility that the result would have been different had the error not occurred. The error was harmless. See Scott v. Commonwealth, 495 S.W.2d 800, 801-02 (Ky. 1972).
I respectfully concur in result only with the Majority Opinion in regard to the trial court's decision.
The Commonwealth's direct and re-direct and defense counsel's cross and recross examination follows. Commonwealth's (CW) direct examination of the children's mother:
CW: Sara, you testified yesterday and the jury, of course, was present at that time. I want to ask you now about your two daughters, Z.C. and D.C. They are going to be called to testify in this case. Let me ask you, do you think they will be able to testify in the same physical situation that you were yesterday and that proximity to their grandfather?
Sara: No.
CW: Why do you say that?
Sara: They don't want to say anything that will get him in trouble.
CW: Do you think him being present or being physically there in their presence when they're asked to testify will impact their ability to communicate?
Sara: D.C. will just sit there and cry and Z.C. will mumble and stick her hands in her mouth. They just, they're, they're also embarrassed by it, so they don't, they don't want to say it out loud. And having him there, they don't, like I said, they don't want to say anything that'll get him in trouble.
CW: Do you think it would impact them emotionally if they were somehow forced or required to do that?
Sara: Oh yeah. D.C, she'll, she already knowing that we were coming to this, she's not, she just cries. Every time she thinks about it, she's like, mom, I can't, I can't do it, I can't do it. And she's already hurt by it, so having to talk about it, she's not, it's going to hurt her even more.
Defense (Def) cross-examination:
Def: How old are the children again?
Sara: Nine and eleven.
Def: When will the eleven-year-old be twelve?
Sara: Next year in June.
Def: [I]n July of this year, I have a note that indicates that you came to the home of, I guess it's your great aunt, Aunt June. Do you remember that?
Sara: Yes. Def: OK. And I guess your father's car was there?
Sara: Yes.
Def: And you could tell he was there because you knew his car was there, right?
Sara: Yes.
Def: And at that time you came in, and did you have a conversation with your father?
Sara: We stayed in the car and he came out to the car.
Def: OK. Did you tell your father that the children wanted to see Dad?
Sara: To see their Papa, yes.
Def: Yeah, and they wanted to see him many times since this occurred, haven't they?
Sara: Yes.
Def: And Sara, then again, that was in early July, the day before July the 4th. And then three days after July the 4th, on the 7th, you talked to your great aunt, didn't you? Do you recall that?
Sara: I talked to Aunt June?
Def: You talked to your father. Three days later. Sara: I talked to my dad. I don't remember talking to my Aunt June.
Def: But at that time, there was a discussion again about the children. It's always about the children because he loves the children, doesn't he?
Sara Yeah. Def: You told him, again, that the children wanted to see him. Do you remember that?
Sara: Yes.
Def: Alright. And that was within four days of one another, the 3rd and the 7th. And then, on the 10th of July, you, your children came to your aunt's house, great aunt's house. Do you recall that? And said that you wanted to talk to your dad, who was there, do you recall that?
Sara: We went there a few times to see him.
Def: A few times, OK, yeah. But anyway, on each of those occasions, of course the children were with you, and they wanted to see their Poppy, right?
Sara: Yes.
Def: Now let's fast forward to October 24th. On another occasion, you had the eleven-year-old there. And wanted to talk to the children. Is that correct? The children wanted to talk to their father, grandfather.
Sara: Yes.
Def: OK. And then on November the 8th, I have a note here, at 6:00, a little past 6:00 in the evening, you talked to your father, said the children want to see their Poppy. You talked about other things, but that was mentioned too, wasn't it? If you recall?
Sara: No, I never talked to my dad in November. He called Z.C. and he talked to Z.C., he never talked to me.
Def: Alright. Now, did you ask to have your father take a picture with the children recently?
Sara: No, we went to a football game and he asked me to take a picture of him with the girls.
Def: Alright. Did you? Did you agree to do that?
Sara: Yes, I took the picture. Def: Did the children want to be in the picture with their [grand]dad?
Sara: Yes.
Def: They did. Alright. Did you ask him to come to the ball game?
Sara: Yes, because the girls still wanted to spend time with him and I figured it was a public place that [].
Def: So the girls wanted to be with granddaddy?
Sara: Yeah.
Def: And you told him about the game, that they would be there. And he came, is that correct?
Sara: Yes.
Def: That would be because you indicated that would be OK to do that?
Sara: Yes.
Def: Did you make the statement that there wasn't any court orders that prohibited you all from contacting him?
Sara: No. I asked him if he would get in trouble, and he said they never told him anything. And I said they never told me anything.
Def: But anyway, the children on all these occasions that I've talked to you about wanted to be with their grandfather?
Sara: Yes.
Def: And still do.
Sara: Not in court, no.
Def: Well, this has heightened the problem, hasn't it? This court business has created some tension, is that correct?
Sara: D.C. doesn't want to talk about what he did in front of him.
Def: What he, what she says he did, right?
Sara: Yes.
Def: But otherwise, she's always wanted to see her Poppy?
Sara: Except for the few times when I told her that he was coming over and she went to her room.
Def: But on occasions when he did come over, he played video games with her in her room?
Sara: Not on those occasions when she went to her room, she stayed in her room, and he stayed in the living room.
Def: On other occasions?
Sara: Yes, on other occasions when I asked her if it was OK, she said yes, but she always stayed within my eyesight.
Def: And that was after Covid, wasn't it?
Sara: Yes.
Def: Alright. And that happened on a number of occasions?
Sara: Yes.
Commonwealth's re-direct examination:
CW: Has D.C. ever wanted to be alone with your father?
Sara: No.
CW: Since this happened?
Sara: No.
CW: And she always expressed to you that she did not want to be alone with your father?
Sara: Yes, she wanted where I can always see her.
CW: Has she ever discussed in his presence what he did to her?
Sara: No.
CW: Would that be impossible for her or difficult at least to do?
Sara: Yes, like I said, she doesn't, she doesn't want him to get in trouble. So, she knows she has to come in here and testify because she knows what he did was wrong. She just doesn't want to be the one that gets him in trouble.
Defense re-cross examination: Def:
On occasion she has been alone with Poppy since Covid and played with her?
Sara: No, he went to her room and I went to my room so I could still see her.
Def: But he's been with her?
Sara: Yes, but never alone with her.
Def: He's been by her side working with her?
Sara: Yes.
Def: The child didn't run from him? . . . And how would they greet each other? Hug one another?
Sara: Yes.
Def: Kiss one another?
Sara: She's never once stopped loving him and wanting to be with him. She just doesn't want to be alone with him.