Opinion
NO. 2012-CA-002139-MR
05-16-2014
JOSHUA CROSTHWAITE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Paul J. Dickman Covington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 12-CR-00095
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Joshua Crosthwaite appeals from the final judgment and sentence of imprisonment for his convictions of one count each of third-degree rape, first-degree sexual assault, and trafficking in a legend drug for an aggregated sentence of seven years' imprisonment. After careful consideration, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 7, 2012, the Boone County grand jury indicted Crosthwaite on one count of third-degree rape, one count of first-degree sexual assault, and one count of third-degree unlawful transaction with a minor. Subsequently, on April 17, 2012, the Grand Jury added one count of trafficking in a legend drug.
In July 2012, a trial was held. The jury found Crosthwaite guilty of trafficking in a legend drug (based on Crosthwaite's procurement of the "morning after" pill for a minor) and not guilty of an unlawful transaction with a minor. The jury, however, could not reach a verdict on the other two counts. A second trial was held on September 24, 25, and 26, 2012.
The following facts are based on the testimony presented at the second trial. Some years prior to the incident herein, Crosthwaite had worked at Sears Automotive where he became acquainted with the manager, Scott Barry. After Barry got to know Crosthwaite, Barry asked him to care for Barry's children as a live-in nanny. Crosthwaite did so for the next eight years. Besides serving as the live-in nanny, he also attended nursing school and graduated in 2010. Crosthwaite then moved to Lexington, Kentucky, to work as an intensive care nurse at the University of Kentucky.
In 2011, over Thanksgiving weekend, Crosthwaite, who was then 29 years old, visited Barry's teenage son, S.B. (S.B.'s parents were out of town.) Crosthwaite, S.B., and several individuals went shopping together on "Black Friday." On the way, they picked up E.D., who was 14 years old. Crosthwaite purchased a Playstation 3 video game system, and the group went back to S.B.'s home to play video games. Later, some individuals began drinking alcohol, including Crosthwaite and E.D. Further, whipped cream was sprayed on E.D.'s abdomen, which Crosthwaite admitted he licked off her abdomen. Later that day, according to E.D.'s testimony, Crosthwaite came into a bedroom and sexually assaulted her.
The individuals were minors.
The next morning, E.D. sent a text message to a friend to come and get her. The friend and her mother, Angie, picked up E.D., who eventually told Angie what had happened. Angie did not tell E.D.'s mother about the incident until the next day because E.D. begged her not to. After Angie shared the information with E.D.'s mother, the decision was made to report the event to the police, which they did.
Following the report, E.D. went to the hospital for an examination. Although E.D. refused to have a vaginal examination, the Sexual Assault Nurse Examiner (hereinafter "SANE"), Kristie Beatty, conducted the remaining portion of the SANE exam. On cross-examination, Crosthwaite's counsel asked E.D. about statements made during the SANE examination. In particular, E.D. confirmed that she was unaware of any pertinent, distinguishing characteristics of Crosthwaite that would help identify him as the perpetrator.
Crosthwaite testified at the second trial. He admitted being at the Barrys' residence on Thanksgiving weekend, going shopping "Black Friday" with S.B., E.D., and others, but denied sexually assaulting E.D. Crosthwaite acknowledged, however, that he had licked whipped cream off E.D.'s abdomen and provided her with the "morning after" pill.
In addition, Crosthwaite, during direct examination, explained that six or seven years ago he had gotten a penile piercing. He testified that since the piercing every person with whom he had sexual relations had noticed it. According to Crosthwaite, it was quite noticeable. On cross-examination, the Commonwealth asked him to describe the piercing.
After Crosthwaite answered the Commonwealth's questions, the Assistant Commonwealth Attorney asked to approach the bench. He stated that Crosthwaite's description did not match the picture of his penis that the Commonwealth had discovered on his cell phone. It was the Commonwealth's contention that Crosthwaite's disclosure of the piercing permitted them to show Crosthwaite the cell phone photo. The photo itself was never introduced into evidence or shown to the jury.
The jury found Crosthwaite guilty of rape in the third degree and sexual abuse in the first degree. On December 11, 2012, he was sentenced to five years on the rape conviction, two years on the sexual abuse conviction, and 12 months on the trafficking conviction. The two felony convictions were to run consecutively, while the trafficking conviction was to run concurrently with the other two sentences. In sum, Crosthwaite was sentenced to imprisonment for seven years. Crosthwaite appeals the judgment and sentence.
ANALYSIS
On appeal, Crosthwaite proffers two grounds of error. First, the trial court erred when it allowed the jury to view a picture of Crosthwaite's penis because it was highly prejudicial. He maintains that the ensuing reaction of counsel, spectators, and the court was extremely detrimental to his case, resulted in manifest injustice, and deprived him of a fair trial. Second, Crosthwaite contends that the trial court also committed palpable error when it allowed the hearsay testimony of E.D. to be presented to the jury through the testimony of the SANE nurse.
Initially, we address Crosthwaite's argument regarding the trial court's error in permitting the use of the photo. As noted by Crosthwaite, the error is not preserved because his counsel did not object to the use of the photo. (In fact, during trial, Crosthwaite's counsel opined that it was relevant.) Notwithstanding the failure to preserve this error, Crosthwaite argues that the court's actions merit palpable error review since manifest injustice resulted and he was deprived of a fair trial.
The Commonwealth counters that this Court should not review the issue since Crosthwaite did not request palpable error review or brief the issue as such. Contrary to the Commonwealth's proposition, although Crosthwaite did not specifically cite palpable error review under Kentucky Rules of Criminal Procedure (RCr) 10.26, he clearly indicated that he is seeking review under the palpable error standard. Crosthwaite cited Kentucky Rules of Evidence (KRE) 103, which refers to palpable error in applying the Kentucky Rules of Evidence.
To decide if an unpreserved error is palpable, an appellate court must consider "whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006). In essence, for an error to be palpable, we must believe that a substantial possibility exists that the result in the case would have been different without the error. If not, the error cannot be palpable. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Further, even if an error is both palpable and prejudicial, it does not justify relief unless the reviewing court also determines that it resulted in manifest injustice; that is, the error is so serious that it affects the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable. Martin, 207 S.W.3d at 5.
Nonetheless, although seeking palpable error review, Crosthwaite's analysis of the issue is under KRE 403. His argument discusses plain error under this evidentiary rule. We will not address the plain error analysis under KRE 403. Rather, given our palpable error review, we observe that Crosthwaite does not proffer any arguments that establish palpable error resulting in manifest injustice.
Notably, Crosthwaite does not demonstrate the use of the photo created a substantial possibility that the result of the case would have been different without its use or that its use was egregious. Nor does he establish that if the court's action was an error, it was so horrific that it affected the fairness of the proceeding in a jurisprudentially intolerable manner.
The facts show that Crosthwaite's attorney introduced the evidence of the penile piercing in an effort to prove that his client could not have sexually assaulted E.D. When the Commonwealth asked to show the photo to Crosthwaite to dispute this contention, his counsel agreed that the photo was relevant. Moreover, Crosthwaite's description in his brief of what happened in the courtroom is disingenuous at best. The photo was not seen by the jury or introduced into evidence. The picture was only used for cross-examination purposes. Crosthwaite corroborated that the photo was of his penis. Additionally, the photo was only seen by the judge, Crosthwaite, and the attorneys. And while defense counsel, Crosthwaite's counsel, covered his eyes, there is no indication that he laughed nor that laughter filled the courtroom. There was some nervous twittering after another exchange between the Commonwealth and Crosthwaite. The reaction was minimal after the presentation of the photo to Crosthwaite.
Lastly, Crosthwaite provided no relationship between the trial court's action and the concomitant reaction in the court room during the cross-examination about the penile piercing. Hence, no evidence or reasoning was introduced in the brief that showed the trial court's actions were outrageous and shocking. For instance, the reaction of his counsel was certainly outside the trial court's purview. In conclusion, no palpable error occurred when the trial court allowed Crosthwaite to be cross-examined about the penile piercing by showing him a photo, taken by him, on his cell phone.
Next, we address Crosthwaite's contention that the trial court erred when, during the Commonwealth's direct examination of the SANE nurse, she read into the record a section of her report, titled "History," wherein E.D. had told the nurse what had happened, and the SANE nurse had written it down word-for-word. Crosthwaite alleges that this testimony implicated him through inadmissible hearsay under KRE 801. Again, Crosthwaite admits that the issue was not preserved and, consequently, a palpable error review is required.
Although Crosthwaite seeks reversal based on palpable error since the issue was not preserved, his analysis is again based on plain error. Crosthwaite articulates that under KRE 801 and KRE 803(4), statements made by a declarant to a medical provider that are not made for purposes of medical treatment or diagnosis are inadmissible hearsay. But, as noted by Crosthwaite, statements made to a SANE nurse serve two purposes - medical treatment and the collection of evidence against a perpetrator. Hartsfield v. Commonwealth, 277 S.W.3d 239, 244 (Ky. 2009). Thus, since the statements read by the SANE nurse identify Crosthwaite as the perpetrator, the statements are testimonial in nature and, therefore, inadmissible hearsay.
Yet, as noted by Crosthwaite, E.D. testified during the trial and, therefore, his right to confrontation was not impacted. Moreover, it was Crosthwaite's attorney who asked questions of the SANE nurse on cross- examination about the narrative. Clearly, counsel was aware of the narrative since it had been provided in discovery. And he used the narrative to bolster Crosthwaite's contention that he did not sexually assault E.D. Having used it to his own purpose, Crosthwaite cannot now claim palpable error.
Keeping in mind that our review is a palpable error review, we must determine whether manifest injustice has resulted from this purported error. Further, Crosthwaite must demonstrate that a different outcome would have occurred at the trial because the error was so fundamental as to threaten his entitlement to due process of law. Martin, 207 S.W.3d at 3. As previously highlighted, the burden to demonstrate palpable error is high. Crosthwaite must show that the so-called error created prejudice much more grievous than that occurring in reversible error. Brewer, 206 S.W.3d at 350.
In the case at hand, any possible error that might have occurred by the SANE nurse's reading of the "history" into the record is simply not shocking. Martin, 207 S.W.3d at 4. Any confrontational issues were addressed by the fact that E.D. testified at trial and could have been addressed by the defense on cross-examination. Indeed, the defense did so when it questioned the SANE nurse. Here, no palpable error resulting in manifest injustice that is jurisprudentially intolerable happened.
CONCLUSION
Thus, we conclude that Crosthwaite failed to establish any palpable error on the part of the trial court occurred, and we affirm the decision of the Boone Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Paul J. Dickman
Covington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Frankfort, Kentucky