Opinion
NO. 2014-CA-000782-MR
01-29-2016
ELIAS ANDRES THOMAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEES
BRIEF FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 13-CR-01183 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE: This matter arises from an order by the Fayette Circuit Court, which denied the motion in limine of the Appellant/Defendant in the criminal action below, Elias Andres Thomas, seeking to exclude hearsay statements by the victim. After the Court overruled Thomas's motion, he entered a conditional guilty plea to a lesser included offense, sexual misconduct, a Class A misdemeanor. Having reviewed the record and finding no error, we affirm.
I. Factual and Procedural History
On the night of March 2, 2010, Thomas was employed as the front desk clerk of a motel in Lexington. The victim, along with an unidentified male, were guests at the motel. At some point early in the morning hours of March 3, 2010, a disturbance erupted, which resulted in the male guest being removed from the premises by police. Following the removal of this individual, Thomas asked the victim to come to the office to sign some paperwork related to the disturbance. The victim agreed. Instead of meeting at Thomas's duty station at the front desk, or in the office of the motel, Thomas asked the victim to meet him at the door to the motel's laundry room. According to a statement made by the victim, Thomas informed her that he could have her removed from the premises as well. Consequently, Thomas and the victim engaged in sexual intercourse in the laundry room.
After this encounter, the victim returned to her room and cleaned herself with a washcloth, then called her daughter and son-in-law. The victim informed her that she had just been raped, and then elaborated on the events that had transpired that morning. The daughter suggested to her mother that she preserve the washcloth and the washcloth was preserved. Later, upon testing, DNA evidence matching Thomas's buccal swab was captured from the washcloth.
The daughter also suggested to her mother that she call the police, who arrived in approximately fifteen minutes. The police collected the washcloth for evidence, and transported the victim to the hospital for an examination. The exam was not completed due to the victim's unwillingness to submit to an examination by the nurse on duty. Later, the victim was transported to a different hospital where the examination was performed. Medical records indicated the victim's blood alcohol content was .124 at the time of the second examination, and her blood work indicated the presence of other intoxicants.
By the time the DNA results from the semen on the washcloth were analyzed by the Kentucky State Police laboratory in November 2010, Thomas had moved out of state. The test results confirmed sexual contact had occurred between Thomas and the victim. Thomas was located in 2013, and indicted on the charge of first-degree rape. The victim died of an unrelated cause during the time Thomas had been outside the jurisdiction, complicating matters related to his prosecution.
Defense counsel filed a motion in limine requesting the dismissal of the indictment, owing to the fact that the Commonwealth's primary evidence of rape consisted of the daughter's account of the conversation with the victim shortly after her sexual encounter with Thomas. The trial court conducted a hearing on the motion, wherein neither side presented any witnesses. The only evidence presented consisted of medical records generated as a consequence of the medical examination. Though unquestionably hearsay, the trial court made specific findings on five of the eight factors and determined that the statement fell under the excited utterance hearsay exception. The trial court also concluded that the victim's intoxication did not invalidate her statements. The Appellant reserved the right to appeal this ruling, and subsequently entered a conditional guilty plea.
Thomas entered his conditional guilty plea on March 7, 2014, to the lesser offense of sexual misconduct, a Class A misdemeanor offense under Kentucky Revised Statutes (KRS) 510.140. During the plea colloquy, when asked to describe his crime, Thomas conceded, "I guess... she was just too much under the influence to prove that it was consent [sic]." Thomas received the maximum sentence for a Class A misdemeanor, twelve months of imprisonment, toward which he was credited 224 days of pre-conviction incarceration.
This appeal followed, wherein Thomas makes two arguments. The first argument is that the trial court erred and violated Thomas's rights to due process and confrontation in allowing the victim's hearsay statements. The second argument is that the trial court erred in its ruling that the victim was competent at the time she made the statements to her daughter.
II. Analysis
A. Standard of Review
Admissibility of evidence is entirely within the discretion of the trial court. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Therefore, evidentiary rulings of a trial court are reviewed for abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013). An appellate court must reverse a trial court's ruling as an abuse of discretion if it was "...arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
B. The Trial Court Acted Within Its Discretion When Denying Thomas's
Motion in Limine
Thomas argues in this appeal that the trial court committed two distinct errors when denying the motion in limine seeking to exclude the victim's statements. The first alleged error is that the victim's statements were "testimonial" and thus only admissible in certain circumstances which were not met here. The second alleged error is that the victim's statements were excited utterances.
1. The Victim's Statements Were Not Testimonial
Thomas relies heavily on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Parson v. Commonwealth, 144 S.W.3d 775 (Ky. 2004), which state that hearsay statements which are "testimonial" in nature are inadmissible under the Confrontation Clause, regardless of whether they fit into any exceptions to the hearsay evidence rule. The crucial elements in those two cases were the declarant's constitutional unavailability and the lack of opportunity to cross-examine. Crawford defined "testimonial statement" employing several different definitions, though the most applicable to this situation is a statement which is "...made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52, 124 S.Ct. at 1364.
The victim was unavailable to deliver testimony at trial, and Thomas's counsel was not present in the motel room that morning to cross-examine the victim as she relayed her account of the events of that evening to her daughter and son-in-law. Therefore, if the statements are testimonial in nature, the trial court should have excluded them. The Kentucky Supreme Court was confronted with a nearly identical factual situation in Hartsfield v. Commonwealth, 277 S.W.3d 239 (Ky. 2009), and was asked to determine whether a declarant's statements to her daughter concerning her rape were testimonial or non-testimonial. The victim in Hartsfield made two separate statements: a cry out for help to passersby immediately following her attack, and another statement to her daughter a few minutes later. Id. at 245. Applying the test set forth by the Supreme Court of the United States in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Hartsfield Court found that neither statement was testimonial. The statements were "spontaneous and unprompted by questioning... not formal, not delivered to law enforcement or its equivalent, and were in the nature of seeking help for an emergency (even though it was not ongoing)." Id.
Thomas attempts to distinguish the facts presented here from the facts in Hartsfield. He highlights the fact that the victim's daughter urged her mother to preserve the washcloth, en route to characterizing the conversation as "geared toward the preservation of evidence." Thomas also emphasizes the "several minutes" it must have taken the victim to retreat from the site of her rape to the relative safety of her motel room as ample opportunity to recover, recompose, and clean herself, before placing the call to her daughter. Thomas's attempt to differentiate these two cases strains credibility to this Court as it must have also to the trial court. The trial court's ruling was consistent with the Kentucky Supreme Court's in Hartsfield in a strikingly similar factual situation; therefore this Court cannot conclude that it was unsupported by sound legal principles, or an abuse of discretion.
2. The Victim Statements Were Excited Utterances
Under Rule 803(2) of the Kentucky Rules of Evidence ("KRE"), an excited utterance is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The justification for the admissibility of such evidence is that "statements made under the stress of excitement are more likely to be the product of that excitement and, thus, more trustworthy than statements made after the declarant has had an opportunity to reflect on events and to fabricate." Jackson v. Commonwealth, 343 S.W.3d 647, 651 (Ky. App. 2011) (quoting Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998)).
It is incumbent on the party seeking admission to prove the applicability of a hearsay exception, and thus, the admissibility of the statement. Ernst v. Commonwealth, 160 S.W.3d 744, 755 (Ky. 2005) (citing Noel v. Commonwealth, 960 S.W.3d 923 (Ky. 2002), and Slaven v. Commonwealth, 962 S.W.2d 845 (Ky. 1997)). The test for determining whether a statement is an excited utterance is set forth in Jarvis: 1) the lapse of time between the event and the statement; 2) the opportunity or likelihood of fabrication; 3) inducement to fabricate; 4) actual excitement of the declarant; 5) the place of the declaration; 6) the presence of visible results of the act to which the declaration relates; 7) whether the utterance was prompted by questioning; and 8) whether the utterance was self-serving or against the interest of the declarant. Jarvis, 960 S.W.2d at 470. However, these factors are not a "true-false test for admissibility, but rather are guidelines to be considered in determining admissibility." Id. "Finally, we have held that, in a close case, 'the trial court's decision to admit or exclude the evidence is entitled to deference.'" Jackson v. Commonwealth, 343 S.W. at 651-52 (quoting Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986) (rev'd on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007)).
Thomas argues the Commonwealth failed to carry its burden to show a significant period of time did not lapse between the attack and the victim's call to her daughter. The Supreme Court has previously ruled that the lapse of time is less important than other factors. "Temporal proximity to the 'startling event' is only one factor to consider..., it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection or deliberation." Thomas v. Commonwealth, 170 S.W.3d 343, 350 (Ky. 2005) (emphasis in original). Nonetheless, Thomas argues that the Commonwealth failed to establish an explicit time frame, only noting that it was a short time to her understanding of the content of the conversation from the daughter and son-in-law. The trial court found at the hearing that the statement was made in sufficient proximity in time to be an excited utterance.
Thomas spends little time arguing the second factor, noting only that the victim would have had adequate opportunity to fabricate her statement in the minutes it took her to return to her motel room from the site of the alleged rape. The trial court clearly found this factor weighed heavily against Thomas at the hearing.
In arguing that the third Jarvis factor weighs against admission, Thomas again distinguishes the instant situation from Hartsfield, noting that the Court in that case had found no evidence of inducement to fabricate. In his argument on this factor, Thomas lays out what would likely have been his defense at trial: that the evidence, as it existed at that point, was so sparse that it did not exclude the possibility that the victim had consented to the encounter in order to ensure she could remain in the motel for the rest of the night. He further points to the fact that the victim had indicated during the medical examination later that day that there had been no coercion involved in the sexual encounter. However, this indication was made by checking a box on hospital paperwork, and there was some question raised at the hearing as to whether the paperwork might have been confusing, as it lists only examples of physical coercion. He contends that this set of facts creates an incentive for the victim to have fabricated her allegations against Thomas. Thomas fails to draw any connection between the facts alleged and any motive the victim might have had to fabricate a rape claim.
As to the victim's actual excitement, Thomas argues that no evidence shows the victim was operating under the excitement of the event. The record does contain a handwritten letter from the victim's daughter, who stated that her mother was crying and frightened during the phone call. Moreover, as this Court noted in Mary Breckinridge Healthcare, Inc. v. Eldridge, "...the mere fact that an individual may appear calm does not mean that he is not in mental turmoil and 'excited,' nor that his capacity for reflection and deliberation is not 'stilled.'" 275 S.W.3d 739, 746 (Ky.App. 2008). Further, documentary evidence presented at the hearing indicated the victim was agitated and belligerent, rather than calm and contemplative, when the police were assisting her. This factor also weighed in favor of admissibility.
The utterance was made from the victim's room in the same motel where the encounter occurred, and Thomas worked. The trial court, other than a brief recitation of these facts, did not mention this factor further. The trial court issued no findings or conclusions in regard to the location of the utterance. However, it would stand to reason that the statement made from the crime scene itself would tend to be more significant to suggest its credibility under the Jarvis "place of the declaration" factor.
The record also unquestionably contained visible evidence which tended to confirm the allegation in the statement. This evidence came in the form of the washcloth, which was preserved and taken into evidence by police, and the DNA test results, which confirmed sexual contact between Thomas and the victim. The proof presented in the hearing contrasted the relationship between the evidence and Thomas's initial statement to police: that he had not touched the victim.
Thomas argues that whether the utterance was made in response to questioning was impossible to determine, given that no evidence was presented as to the exact content of the conversation between the victim and the daughter. However, it was presented that it was the victim who placed the call, without prompting.
In regard to the final factor of the Jarvis test, whether the statement was against interest or self-serving, Thomas argues that the victim's statement would have been potentially self-serving. However, the Court finds nothing persuasive in that argument. Though the trial court did not specifically address that factor, there was no evidence presented by Thomas that even suggested that her statement to her daughter was self-serving. As there was no evidence that her statement was self-serving, this factor weighs in favor of admissibility.
Having reviewed the record, this Court must conclude that the trial court did not err when finding that the victim's statements were made with sufficient spontaneity to insure trustworthiness. The trial court's conclusion that the excited utterance exception applies was supported by its analysis of the Jarvis factors. It was therefore not an abuse of discretion.
C. The Intoxication of the Victim at the Time She Made Her Statements
While noting that the victim was intoxicated at the time the statements were made, the trial court based its ruling on the complete lack of evidence indicating the victim was so highly intoxicated that she could not accurately perceive events. Thomas pointed to specific events in the course of the night that indicated the victim's undisputed intoxication. However, when reviewing the medical records specifically to determine if any health care professionals had noted the victim as being "highly intoxicated," the trial court found none. Absent medical evidence of incompetency, the trial court could not presume the incompetence of the victim under KRE 601(a), and correctly concluded that the victim's intoxication went to the credibility of her statements rather than their admissibility.
D. Any Error the Trial Court May Have Committed was Harmless
While Thomas was initially indicted on a charge of rape in the first degree, the charge was eventually amended down to the lesser offense of sexual misconduct and Thomas entered his guilty plea. KRS 510.140 describes the offense of sexual misconduct as having two critical elements: sexual intercourse (or deviate sexual intercourse) coupled with a lack of consent. Under KRS 510.020, the lack of consent as an element of any offense defined in KRS chapter 510 includes lack of capacity to consent. KRS 510.020(1), (2)(b).
Even without the victim's excited utterance hearsay statements being considered, the evidence in the record would support a conviction on this charge. The DNA results confirm sexual intercourse occurred as defined in KRS 510.010(8). The medical records indicate the victim was intoxicated at the time of the offense, indicating a lack of capacity to consent. Moreover, Thomas was aware of the victim's intoxication at the time, as indicated in his statement on the record during his plea colloquy.
Even assuming the trial court committed error, without so ruling, this court finds Thomas would have suffered no prejudice, as the same conviction could have resulted from trial even without the contested evidence. Any error in the trial court's ruling on the motion in limine would therefore be harmless.
III. Conclusion
This Court, having reviewed the record and finding no error, hereby AFFIRMS the ruling of the Fayette Circuit Court. MAZE, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS AND WRITES SEPARATELY.
ACREE, CHIEF JUDGE, CONCURRING: I concur with the majority opinion with the exception of the harmless-error analysis contained in Section II.D. That section opines that the victim's intoxication was such as to "indicat[e] a lack of capacity to consent" to sexual intercourse. Earlier in the opinion we said the trial court correctly concluded there was insufficient evidence that her intoxication rendered her statements incompetent. Recognizing nuances between capacity and competence, I nevertheless believe the harmless-error analysis is unnecessary and potentially confusing.
Otherwise, I concur in the majority opinion. BRIEF FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky