Opinion
NO. 2011-CA-001752-MR
12-07-2012
CLIFTON B. NEALIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CR-00057
OPINION
AFFIRMING
BEFORE: DIXON, MAZE AND NICKELL, JUDGES. DIXON, JUDGE: Appellant, Clifton Nealis, was convicted in the Bath Circuit Court on one count of first-degree sexual abuse of a victim under twelve years of age. He was sentenced to five years' imprisonment and appeals to this Court as a matter of right. Finding no error, we affirm.
On the morning of August 14, 2010, the victim, five-year-old S.B., and her grandfather went to Robert's Grocery in Sharpsburg, Kentucky. Connie Boggess, a volunteer worker at the store, was working the cash register and observed S.B.'s grandfather tell her she could go pick out a toy or some candy. Boggess explained that she could see down the store aisle because of the parabolic mirror that was mounted on the wall. Boggess stated that as S.B. was looking at the novelty rack, Appellant walked up behind her and put his hand up the back of her dress. At that point, S.B.'s grandfather told her to come back to the cash register. Boggess stated that Appellant called S.B. back to the candy area, telling her he wanted an item of candy like she had. Boggess then witnessed Appellant put his hand up the back of S.B.'s dress two more times. Boggess claimed that each time, Appellant would look around to make sure no one was watching. Boggess then told S.B.'s grandfather he needed to take S.B. out of the store. When Boggess told a coworker what she had witnessed, the coworker immediately went outside and told S.B.'s grandfather what had occurred.
Kentucky State Trooper Nathan Shortridge responded to the complaint and interviewed Boggess, S.B., and her grandfather. The trooper then went to Appellant's apartment to interview him. Appellant explained that he had gone to the grocery to purchase a twist of tobacco and a lottery ticket. Appellant claimed that S.B. had shown him where to find some gum. When Trooper Shortridge asked Appellant if he had touched S.B. he answered "no sir" but then added "well I might have patted her on the back and thanked her." Upon further questioning, Appellant admitted that "I may have smacked her on the butt a time or two," but denied ever putting his hand inside S.B.'s dress.
On September 2, 2010, Appellant was indicted by a Bath County Grand Jury on one count of first-degree sexual abuse. Subsequently, in March 2011, a pretrial hearing was conducted to determine whether S.B. was competent to testify as a witness. The record indicates that S.B., who was six years old at the time, was required to sit in the judge's chambers for around fifteen minutes before the hearing could begin. Apparently, S.B. became quite restless and asked to go home. Nevertheless, when the hearing began, S.B. was able to recite her full name and age, and details as to the day in question at the grocery store. S.B. claimed that Appellant had "patted [her] on the butt" one time. She thereafter stated that she knew the difference between a truth and a lie, and that she would get "whooped" if she lied at home. However, when asked if the trial judge was green and three feet tall, S.B. answered "yes." Following some other questioning, S.B. was again asked whether the trial judge was green and three feet tall, at which time she responded "no", saying only that his tie was green.
At the close of the hearing, the trial court ruled that although there was some "borderlineness" to it, S.B. was competent to testify. The court noted that it believed S.B. had "worn down" during the waiting process and that her focus had dropped off by the time the hearing started. The trial court further noted that it would have had more concern if S.B. was the sole witness, but the fact that there was another witness who would also testify to the events on the day in question weighed in favor of finding S.B. competent.
A trial was held on April 6, 2011. At the close of the Commonwealth's case, Appellant moved for a directed verdict, which was denied. The defense rested without calling any witnesses. The jury subsequently found Appellant guilty of first-degree sexual abuse and recommended the minimum sentence of five years' imprisonment. The trial court entered judgment accordingly and Appellant appeals to this Court as a matter of right.
Appellant first argues that the trial court erred in finding that S.B. was competent to testify. Appellant contends that S.B.'s answers during the competency hearing, as well as the contradiction in her trial testimony, establish that she was not a competent witness. We disagree.
The determination of witness competency is within the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of that discretion. Jarvis v. Commonwealth, 960 S.W.2d 466, 468 (Ky. 1998). Furthermore, an appellate court may review the trial court's competency determination from the entire record, including evidence introduced at trial. B.B. v. Commonwealth, 226 S.W.3d 47, 49 (Ky. 2007) (Citing Kentucky v. Stincer, 482 U.S. 730, 740, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)).
KRE 601(b) provides:
Minimal Qualifications. A person is disqualified to testify as a witness if the trial court determines that he:KRE 601(a) establishes a presumption of witness competency and permits disqualification only upon a showing of incompetency. Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000). Significantly, "[a]ge is not determinative of competency and there is no minimum age for testimonial capacity." Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002) (citation omitted). However, "[a] child's competency varies according to both her developmental level and the subject matter at hand." Jarvis, 960 S.W.2d at 469 (Citation omitted).
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.
S.B. was barely six-years-old at the time of the competency hearing. She knew her full name, where she lived, date of birth, her grade and teacher's name. She acknowledged that she frequented Robert's Grocery and not only remembered going there on the date in question with her grandfather, but also that a man and a woman were working that day. S.B. specifically recalled that Appellant had asked where some candy was and, after she showed him, he patted her on the butt. In response to the prosecutor's questions, S.B. stated that she would get "whooped" at home if she lied and indicated that it was not good to lie. However, when the prosecutor specifically asked her how many times Appellant had patted her she responded that it happened three times.
S.B.'s testimony at trial was consistent with that given during the competency hearing except she stated that Appellant had patted her three times. She further explained that she had been wearing a dress and Appellant touched her under the dress. When confronted with the fact she had stated during the competency hearing that Appellant had only touched her once, S.B. stood by her claim that it was three times. Finally, S.B. recalled telling the trial judge that she would tell the truth.
Appellant is correct that S.B. did not respond to every question asked of her at trial. Further, during the competency hearing she acted in a manner consistent with a six year old when she initially answered that the judge was green and three feet tall. S.B. did, however, when pressed clarify that the judge's skin was not green, but rather his tie was green. Nevertheless, we believe that S.B. met the minimum qualifications of KRE 601 to be competent to testify. She clearly perceived the matter about which she was testifying and had the capacity to recollect the facts about the day in question, she had the ability to express herself as to be understood, and she understood that she could get in trouble for lying.
Furthermore, we do not find Appellant's reliance upon the decision in B.B. v. Commonwealth persuasive. In B.B., the four-year-old victim was unable to comprehend any of the discussion during the competency hearing. "Many answers were not responsive to the questions, and, when asked directly if she understood 'what telling the truth means' or 'what being honest is and telling exactly what happens' means, C.Y. shook her head 'no'." 226 S.W.3d at 49. Nevertheless, the trial court deemed her competent to testify. Subsequently, at trial, the victim repeatedly contradicted herself and gave several different versions of events. In reversing the matter on appeal, the Kentucky Supreme Court held that "[s]uch made-up or false testimony conclusively proves that four year old C.Y. did not understand the obligation of a witness to tell the truth, or, in the alternative, lacked the capacity to recollect facts." Id. at 50.
Unlike the victim in B.B., S.B. demonstrated that she understood the difference between a truth and a lie. Further, although her trial testimony differed from that given in the competency hearing with respect to the number of times Appellant touched her, S.B. was able to recall and remained consistent as to all other facts surrounding the incident. Accordingly, we conclude that the trial court properly found S.B. competent to testify under KRE 601.
Next, Appellant claims that the trial court erred in denying his motion for a directed verdict at the close of the Commonwealth's case. Appellant claims that the Commonwealth failed to prove either the presence of sexual contact or that any such contact was for the purpose of sexual gratification.
In ruling on a motion for a 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 purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the juryCommonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991); Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). 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.2d at 187 (Ky. 1991) (citations omitted).
questions as to the credibility and weight to be given to such testimony.
Appellant was convicted of violating KRS 510.110, which provides in relevant part:
"Sexual contact" is 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).(1) A person is guilty of sexual abuse in the first degree when:....
(c) Being twenty-one (21) years old or more, he or she:
1. Subjects another person who is less than sixteen (16) years old to sexual contact[.]
In Bills v. Commonwealth, 851 S.W.2d 466, 471 (Ky. 1993), our Supreme Court held that sexual contact is not limited to the sex organ. Id. (Citing People v. Graydon, 129 Misc.2d 265, 492 N.Y.S.2d 903 (N.Y.C.Crim.Ct.1985); People v. Morbelli, 144 Misc.2d 482, 544 N.Y.S.2d 442 (N.Y.C.Crim.Ct.1989)). The Bills Court noted:
We find the commentary to Section 7 useful in understanding the term "sexual contact" as any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying the sexual desire of either party. An actual touching is required, but the contact need not be directly with the body. For example, touching another person's sex organs through clothing would be within the purview of this definition. The touching must be done for the purpose of sexual gratification. Clearly, the definition does not include inadvertent or accidental touching of the intimate parts of another person.
Id.
Whether the part of the body is "intimate" requires an examination of three factors: 1) What area of the body is touched; 2) What is the manner of the touching, and 3) Under what circumstances did the touching occur. Id. at 472. Moreover, with respect to whether the touching was for the purposes of sexual gratification, "[i]ntent can be inferred from the actions of an accused and the surrounding circumstances. The jury has wide latitude in inferring intent from the evidence." Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988); see also Tungate v. Commonwealth, 901 S.W.2d 41, 42 (Ky. 1995).
The testimony established that Appellant looked around the store to make sure no one was watching prior to putting his hand under S.B.'s dress and touching her rear end. When S.B.'s grandfather called her to the front of the store, Appellant asked her to come back to the candy aisle to show him where she got a particular candy. At that time, he again reached up S.B.'s dress and touched her. When S.B.'s grandfather approached her, Appellant quickly left the store. The store clerk testified she was 100% positive that Appellant neither patted S.B. on the back nor thanked her for her help.
We are of the opinion that it was within the province of the jury to determine by method of reasonable inference whether the situation described herein amounted to sexual contact and whether such was not incidental but rather related to sexual gratification. As such, based upon the evidence taken as a whole, accepted as true and viewed in a light most favorable to the Commonwealth, it was not clearly unreasonable for the jury to find beyond a reasonable doubt that the Commonwealth met its burden of proving each element of each offense, including that the touching was done for the purpose of sexual gratification. Benham, 816 S.W.2d at 187; Sawhill, 660 S.W.2d at 5. The trial court did not err when it denied the appellant's motion for a directed verdict of acquittal.
The judgment and sentence of the Bath Circuit Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky