Opinion
NO. 2018-CA-001594-MR
01-31-2020
ERIC RAMSEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 16-CR-002328 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES. KRAMER, JUDGE: Eric Ramsey was convicted of three counts of first-degree sexual abuse and two counts of second-degree rape by a jury in the Jefferson Circuit Court. He was sentenced to a total of seven years' incarceration. He now appeals his conviction. After careful review of the record, we affirm.
Ramsey received a sentence of five years on each sex abuse count and seven years on each rape count, all to run concurrently for a total of seven years' incarceration.
FACTUAL AND PROCEDURAL BACKGROUND
Between August 1, 2015 and August 20, 2016, Ramsey lived with his wife, S.R., in Louisville, Kentucky. The minor victim in this case is J.H., S.R.'s cousin; S.R. has legal custody of J.H. Additionally, two other minor children lived in the home: I.B. (S.R.'s minor child from a prior relationship) and A.R. (minor child of Ramsey and S.R.).
We have elected to use the initials of Ramsey's wife and all of the minor children referred to in this case in an effort to protect the identity of the minor sexual assault victim.
On or about August 20, 2016, S.R. was working in her bedroom, located on the third floor of the home. I.B. and A.R. were in the basement playroom. S.R. could see the children through a live-feed camera that was installed in the playroom. After some time, S.R. saw Ramsey instructing I.B. and A.R. to go back upstairs. The lights in the basement then went out and the camera switched to night-vision mode. S.R. saw J.H. walk past the camera with Ramsey following behind her. Feeling that something was wrong, S.R. proceeded to the basement. After entering, she saw Ramsey and J.H. in the hallway that connected the playroom to Ramsey's "man cave." Ramsey was kneeling over J.H. His pants were down, and his genitals were exposed. He was penetrating J.H.'s vagina with his fingers. J.H. was lying on the floor with a pillow over her face. She was not wearing pants or underwear. Upon realizing that S.R. had entered the basement, Ramsey jumped up and shouted, "You told me to!" He kept saying that he was just "checking" J.H. to see if she had "been with" boys. J.H. was thirteen years old at the time.
S.R. gathered the children, including J.H., and left the home. She called 911 and eventually made her way to the Crimes Against Children Unit (CAC) at the Louisville Metro Police Department (LMPD) with J.H. There, S.R. told Detective Stacy Roby about what she had just witnessed between Ramsey and J.H. in the basement of her home. While S.R. and J.H. were with Detective Roby, Ramsey began calling their cellular telephones. With S.R.'s permission, Detective Roby conducted a series of controlled telephone calls between S.R. and Ramsey and J.H. and Ramsey. While speaking to S.R., Ramsey made various statements admitting that he had touched J.H.'s genitals. While speaking to J.H., Ramsey told her that he was proud of her, that he was not going to do "it" anymore, and that he was going to give her ten dollars ($10.00). He also told J.H. that, if S.R. asked, to say that J.H. asked him to "check" her. The police arrested Ramsey on counts of rape and sexual abuse later that day. Once Ramsey was in custody, Detective Roby conducted an interrogation. The interrogation lasted approximately four hours, and approximately three hours were played for the jury at trial. Towards the end of the interrogation, Ramsey admitted he touched J.H.'s vagina on the day in question.
The controlled telephone calls were played for the jury during the trial.
The LMPD Crime Scene Unit (CSU) went to the residence at the direction of Detective Roby on or about August 28, 2016. Prior to that date, J.H. had described other instances of sexual abuse by Ramsey that occurred in various areas throughout the home. CSU took numerous carpet samples from the residence after a forensic light revealed the presence of possible semen. Analysis of a carpet sample taken from the basement hallway revealed that there was semen present, and the DNA in the semen matched Ramsey's DNA profile.
During her testimony, J.H. reported that, in addition to the incident on August 20, 2016, Ramsey had sexually assaulted her one other time in the basement hallway. J.H. also testified about numerous other instances of sexual assault by Ramsey that took place within the residence; however, the jury convicted Ramsey of two counts of first-degree sexual abuse and two counts of first-degree rape that occurred during two separate occasions in the basement hallway. The jury also convicted Ramsey of first-degree sexual abuse for another instance that took place in Ramsey's "man cave." This appeal followed.
Ramsey makes three arguments on appeal. First, he claims that the trial court erred when it refused to allow defense counsel "to argue to the jury [Ramsey's] denials in the interrogation played by the Commonwealth." Second, Ramsey argues that he was denied a right to present a defense when the trial court ruled he could not admit into evidence specific acts of dishonesty of J.H., sources of J.H.'s sexual knowledge, and texts between J.H. and a friend who was a teenage boy. Finally, Ramsey argues that the trial court erred in denying his challenges for cause related to three jurors.
STANDARD OF REVIEW
Ramsey's first two arguments pertain to admission of evidence. The standard of review for admission of evidence is whether the trial court abused its discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). Similarly, in sexual abuse cases, "[t]he trial court has broad discretion when determining the admissibility of such evidence [under KRE 412], and reversal is not required unless the trial court's ruling constitutes an abuse of discretion." Howard v. Commonwealth, 318 S.W.3d 607, 614-15 (Ky. App. 2010) (citation omitted). Finally, "[a] determination whether to excuse a juror for cause lies within the sound discretion of the trial court and is reviewed only for a clear abuse of discretion." Soto v. Commonwealth, 139 S.W.3d 827, 848 (Ky. 2004) (citation omitted). In each instance, "[t]he 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).
Kentucky Rule of Evidence.
ANALYSIS
Regarding his first argument, the trial court prevented Ramsey from offering as substantive evidence the many denials he made during the three hours of recorded interrogation played for the jury. The following exchange occurred between defense counsel and Detective Roby during cross examination:
Counsel: He never would say that he inserted his fingers in the vagina, correct?
Witness: No, he said he touched her.
Counsel: He never did say that he had penile penetration, correct?
Witness: Correct.
. . . .
Counsel: But he did not confess, did he? He did not confess, correct?
Witness: He admitted to touching her.
Counsel: Outside the vagina for non-sexual purposes, correct?
At that point, the trial court called the parties to the bench and informed defense counsel that he could not admit those statements into evidence. The trial court's reasoning was that, pursuant to KRE 801A(b), Ramsey's repeated denials during the interrogation were hearsay, and his attempts to use the statements as substantive proof of the matter asserted (i.e., to prove that he never penetrated J.H.'s vagina with his fingers or penis) violated the rule. Defense counsel argued that by playing the interrogation, the Commonwealth had already admitted the statements and that, because the statements were admitted into evidence, he should be permitted to cover them on cross-examination of Detective Roby. The court responded, "You cannot offer your defense through [those] statement[s]. You can't do it. It's not allowed by the rules. He can testify and say whatever he wants, but you can't get it in through that statement." The trial court then admonished the jury stating, in relevant part,
There is nothing that the defendant said on that tape that can be offered into evidence as his defense. There is nothing in that tape that can be offered as substantive evidence to show that what he is saying is true. It is hearsay. And you may not consider it for the truth of the matter asserted. Whatever he said may be offered for other purposes, but not to show that what he was saying was true. It cannot happen. The only exception to that under the rules is where the Commonwealth uses it against him. Now that may not seem fair, but it is the rule and they'll make it clear in their closing statements, I imagine, what they're offering against him for your consideration, but that is the only time you may consider, to the extent that you think it's appropriate, what he said in that statement as substantive evidence. Period. That's why you have to disregard anything [defense counsel] says about anything his client says if he's offering it for proof that his client was telling the truth when he talked to the officer.
Defense counsel continued to refer to Ramsey's denials during cross-examination of Detective Roby, and the trial court continued to admonish the jury. The trial court also prevented Ramsey from arguing the same denials in his closing argument.
KRE 801A(b)(1) states that, "A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is . . . [t]he party's own statement, in either an individual or a representative capacity[.]" Ramsey frames his argument by asserting that, because the Commonwealth introduced the statements by playing the interrogation for the jury, "the defense had every right to use those statements." Ramsey also argues that "[i]f the Commonwealth did not want the defense to be able to argue his denials to the jury, it should not have played three of the four hours of the interrogation to the jury." We disagree.
See Appellant's brief to this Court, page 15.
Ramsey cites Sykes v. Commonwealth, 453 S.W.3d 722 (Ky. 2015), and Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), in support of his assertion that he should have been permitted to argue his denials to the jury. However, both Sykes and Rodgers address the issue of completeness under KRE 106 and are distinguishable from the instant action. Not only is completeness not an issue raised on appeal, it is inapplicable because Ramsey's interrogation was played in its near entirety. In Sykes, the Kentucky Supreme Court ruled that the defendant should have been allowed to admit certain exculpatory statements made by the defendant during the interrogation. The Court ruled that the statements should have been permitted "to complete what was arguably an incomplete and potentially misleading reproduction of that statement." Sykes, 453 S.W.3d at 727 (citation omitted). The statements were not entered to prove the truth of the matter asserted (which, in Sykes, was the defendant's assertions that he did not mean to shoot the victim).
In Rodgers, the detective in the case testified and paraphrased the defendant's interrogation in which the defendant said, "I shot him." The trial court permitted defense counsel to cross-examine the detective about statements the defendant made immediately prior to that statement, but again, this was for the sake of completeness pursuant to KRE 106 and to prevent the jury from being misled by the statement. See Rodgers, 285 S.W.3d at 749. However, the Kentucky Supreme Court stated
Rodgers contends that he should have been permitted to ask the detective about other self-defense portions of his statement . . . . We disagree.
As the Commonwealth noted during trial, the statements Rodgers made during his interrogation were inadmissible hearsay—admissible when offered by the Commonwealth as admissions of a party opponent under KRE 801(A)(b), but not admissible when offered by Rodgers himself. Rodgers argued, however, that KRE 106, the so-called rule of completeness, trumped the hearsay rule in this instance and permitted him to introduce those portions of his statement which would place the portion introduced by the Commonwealth into context and so prevent an unfair use of his "I shot at him" admission. We addressed this situation in Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006), where we explained that
Rodgers, 285 S.W.3d at 748.a party purporting to invoke KRE 106 for the admission of otherwise inadmissible hearsay statements may only do so to the extent that an opposing party's introduction of an incomplete out-of-court statement would render the statement misleading or alter its perceived meaning. . . . The completeness doctrine is based upon the notion of fairness—namely, whether the meaning of the included portion is altered by the excluded portion. The objective of that doctrine is to prevent a misleading impression as a result of an incomplete reproduction of a statement. This does not mean that by introducing a portion of a defendant's confession in which the defendant admits the commission of the criminal offense, the Commonwealth opens the door for the defendant to use the remainder of that out-of-court statement for the purpose of asserting a defense without subjecting it to cross-examination. 190 S.W.3d at 330-31 (emphasis in original).
Ramsey contends that he should have been allowed to cross-examine Detective Roby regarding his denials during the interrogation, but his argument misses the mark. Ramsey fails to take into account that the Commonwealth was unable to cross-examine him regarding the denials. Ramsey cannot assert his defense through an unsworn, out-of-court statement that is not subject to cross- examination. See Schrimsher, 190 S.W.3d at 330-31. As previously stated, completeness pursuant to KRE 106 is not an issue before this Court. The jury heard all relevant parts of the interrogation, including Ramsey's denials. Therefore, we discern no abuse of discretion in the trial court's refusal to allow Ramsey to use his denials during the interrogation as substantive evidence. The denials were hearsay.
Ramsey did not testify at trial.
Ramsey's second argument is that he was denied a right to present a defense when the trial court ruled he could not admit into evidence specific acts of dishonesty of J.H., sources of J.H.'s sexual knowledge, and texts between J.H. and a friend who was a teenage boy. We disagree.
Citing KRE 608(b), the trial court refused to allow Ramsey to question S.R. or J.H. regarding specific instances of conduct by J.H. Specifically, Ramsey wished to question J.H. about an allegedly stolen cellular telephone and other items. KRE 608(b) provides:
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.Ramsey argues that he had a factual basis for the inquiry because J.H.'s therapy notes, which were used in other lines of questioning, reportedly mentioned the specific instances. We disagree.
J.H.'s therapist did not testify at the trial.
Ramsey addressed J.H.'s reputation for truthfulness through the testimony of S.R., J.H., and Ramsey's mother, Candace Ramsey. S.R. testified that J.H. was seeing a therapist, in part, because of concerns regarding J.H.'s dishonesty. Ramsey's mother testified that J.H. was not allowed to come to her home due to her dishonesty. In her own testimony, J.H. also acknowledged that she does not always tell the truth. We agree that any evidence that J.H. stole a cellular telephone or any other items was irrelevant because, as the trial court stated from the bench, "this is not a theft case." The trial court did not abuse its discretion by refusing to let in extrinsic evidence as specific instances of misconduct to attack J.H.'s credibility. We also agree with the Commonwealth that because J.H. admitted that she does not always tell the truth, there was no inconsistent testimony inviting impeachment through introduction of specific instances of conduct by J.H. The evidence at trial included that J.H. was not always honest; therefore, the credibility of her overall testimony was at issue. This was a matter well within the jury's providence.
S.R. did clarify that she believed that, although J.H. was caught lying, she believed J.H. lied "like any other teenager" and that it was "about normal stuff."
Ramsey also contends that he should have been allowed to introduce into evidence sources of J.H.'s sexual knowledge (specifically, that J.H. allegedly had pornography on her cellular telephone), and text messages between J.H. and a minor male acquaintance, in which they discussed sexual topics. Ramsey offered that J.H. was able to describe sexual acts because she had knowledge through viewing pornography, (i.e., not because Ramsey perpetrated sexual acts upon her). Ramsey also argued that the text messages were relevant to the defense because they showed that J.H. admitted she was a virgin and had never been digitally penetrated. We disagree.
Known as Kentucky's "Rape Shield Law," KRE 412 governs the admissibility of a victim's behavior and sexual predisposition. KRE 412 serves "to prevent the victim in a sexually related crime from becoming the defendant at a trial." Smith v. Commonwealth, 566 S.W.2d 181, 183 (Ky. App. 1978). It prevents the introduction of evidence that is neither material nor relevant to the crime charged. Anderson v. Commonwealth, 63 S.W.3d 135, 140 (Ky. 2001) (citation omitted). KRE 412 states:
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) any other evidence directly pertaining to the offense charged.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) file a written motion at least fourteen (14) days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
Regarding J.H.'s alleged exposure to pornography, this Court has ruled that "evidence that [the victim] could have been exposed to [ ] pornography is precisely the type of evidence that the rape shield law was meant to exclude from trial. The sole purpose of such evidence would have been to show that [the victim] engaged in sexual behavior and had a sexual predisposition." Howard, 318 S.W.3d at 615. Whether J.H. had viewed pornography is simply immaterial and unrelated to whether Ramsey sexually assaulted her. Moreover, J.H. admitted in her testimony that she had knowledge of sexual activity. If Ramsey believed the pornography was an exception to the rule, the record before us shows that Ramsey did not follow the proper notice and procedural requirements to have the evidence admitted pursuant to KRE 412(c). Accordingly, the trial court did not abuse its discretion in excluding the any evidence to whether J.H. had possessed or viewed pornography.
Similarly, we find Ramsey's argument regarding admission of the text messages unpersuasive. J.H. admitted on cross-examination that she had told a minor male acquaintance, via text message, that she was a virgin. J.H. also acknowledged that she had completed an intake form at her pediatrician's office and answered "No" to the question of whether she had engaged in sexual activity. Regardless of whether the text messages showed that J.H. stated she was a virgin, the overall nature of the text messages would have demonstrated J.H.'s sexual predisposition, in contravention of KRE 412. We again note that, if Ramsey believed the text messages were an exception, he failed to follow the proper notice and procedural requirements of KRE 412(c). Accordingly, the trial court did not abuse its discretion.
The first page of the questionnaire was admitted into evidence at the trial.
Ramsey's third and final argument is that the trial court erred in denying his challenges for cause regarding three jurors. He argues that, because the trial court denied his challenges for cause, he was forced to use peremptory strikes, which could have been used on other jurors. We are unpersuaded by Ramsey's argument.
RCr 9.36(1) states, in relevant part, "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." "[T]he trial court should base its decision to excuse a prospective juror on the totality of the circumstances, not on a response to any one question." Hilton v. Commonwealth, 539 S.W.3d 1, 12 (Ky. 2018) (internal quotation marks and citation omitted).
Kentucky Rule of Criminal Procedure. --------
The first juror, Juror 30, indicated to the trial court that his daughter had been sexually assaulted, and he sat through the trial, which took place in Colorado. Although the juror stated, "If I was the defense, I don't know if I'd want me sitting here," he agreed to listen to the evidence upon further questioning. Moreover, the juror agreed that if the Commonwealth did not prove its case, he would have to find the defendant not guilty. Juror 30 also indicated that he could find the defendant not guilty if the evidence warranted it, even if the decision would make him "feel bad." Given the totality of circumstances around Juror 30's answers during voir dire, the trial court did not abuse its discretion in denying Ramsey's challenge for cause.
The next juror, Juror 3, informed the trial court that her husband was a retired law enforcement officer with LMPD and that he had also worked for the Sheriff. Juror 3 answered "probably yes" when asked if she would identify or give more credibility to a police officer. However, the trial court pointed out that the question was improper because everyone would answer "yes" because police officers are symbols of authority. Furthermore, the Commonwealth correctly points out that personal or familial ties to law enforcement do not automatically disqualify a juror. See, e.g., Stopher v. Commonwealth, 57 S.W.3d 787, 797 (Ky. 2001). Juror 3's follow-up answers indicated that she would listen to all of the evidence and not base any belief simply on the fact that a person is a police officer. She stated that she could be fair. RCr 9.36 gives the trial court discretion to determine bias from any circumstances or relationships between the juror and the case at bar. Accordingly, we cannot say that the trial court abused its discretion in denying Ramsey's challenge for cause regarding Juror 3.
Finally, Juror 8 informed the trial court that she was a probation and parole officer and that she had supervised sex offenders. She indicated that she was familiar with the sentencing ranges of the crimes for which Ramsey was charged and knew the supervision requirements. However, she also indicated that she would not impart her knowledge to other jurors and would not be inclined to give a higher penalty. She made no comments that spoke to an inability to be fair and impartial. Similar to Juror 3, Juror 8's personal ties to law enforcement do not automatically disqualify her as a juror. Id. We cannot say that the trial court abused its discretion in denying Ramsey's challenge for cause regarding Juror 8.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky