Opinion
NO. 2016-CA-000461-MR
03-09-2018
GERALD WEST APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Gerhart Landon Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED ON BELATED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 14-CR-00443 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Gerald West has directly appealed, via a belated appeal, from the final judgment of the Campbell Circuit Court convicting him following a jury trial of first-degree sexual abuse and second-degree unlawful transaction with a minor. For these offenses, he was sentenced to three years' imprisonment. Both offenses involved his granddaughter. West argues on appeal that the circuit court erred in permitting the Commonwealth to introduce evidence of subsequent bad acts. Having reviewed the record and the parties' arguments, we affirm.
In June 2014, the Campbell County grand jury indicted West on two counts of first-degree sexual abuse pursuant to Kentucky Revised Statutes (KRS) 510.110 for subjecting J.W. (the Child) to sexual abuse between November 2009 and March 2010, when she was under the age of 12. Detective Jason Gabbard of the Newport Police Department arrested West on April 7, 2014, and he described the circumstances of the alleged offense that had occurred years earlier in the Uniform Citation:
Between 01/01/2010 and 5/31/2010 above had sexual contact with his 11 year old granddaughter. Victim stated that while she was sleeping she was awoke [sic] to above's hand inside her underwear. Victim stated that he put his finger inside her vagina then removed her shirt. Victim stated that he then placed his mouth on her breasts and wanted her to remove her pants but she ran out of the room. Above stated that he was intoxicated and woke to the victim kissing him on the mouth. Above stated that he may have touched her breast since he thought it was his wife kissing him not his granddaughter.West had originally been charged with first-degree sodomy and first-degree sexual abuse. In December 2014, the grand jury returned an indictment on a third charge; namely, second-degree unlawful transaction with a minor pursuant to KRS 530.065. The indictment stated that between December 2010 and March 19, 2014, West knowingly caused a minor to engage in illegal controlled substances activity involving marijuana. And in January 2015, an amended indictment was returned, which consolidated the charges against West as one count of first-degree sexual abuse between November 1, 2010, and March 10, 2011, with the victim under the age of 16 and West being 21 years old or more and one count of second-degree unlawful transaction with a minor between May 31, 2013, and March 19, 2014.
West entered a not guilty plea at his arraignment in July 2014, and a jury trial was scheduled for later that year. Prior to trial, the Commonwealth filed a notice pursuant to Kentucky Rules of Evidence (KRE) 404(c) that it intended to introduce other bad acts of West in order to show the absence of mistake or accident, intent, modus operandi, identity, opportunity, or plan. The prior bad acts involved West telling his daughter that a five-year-old family member had accused him of touching her in a sexual manner, and West said this family member tried to French kiss him and play in the closet with him. The Commonwealth described these acts as being "strikingly similar" to the present case. West filed a motion in limine to exclude KRE 404(b) material, to postpone the trial, and for a hearing on the Commonwealth's KRE 404(c) notice. West stated that the incident mentioned in the notice took place in Ohio and did not involve him. He also asserted a right to investigate the Ohio conduct as another person might be named who could be relevant to the present case. The trial was rescheduled for January 2015.
The Commonwealth filed a motion in limine to prohibit any testimony as to the child's sexual activity with another person pursuant to KRE 412, any evidence as to any witness's character for truthfulness not based on a proper foundation pursuant to KRE 608, and any inadmissible evidence pursuant to KRE 401, 402, and 403. West filed another motion in limine to prevent the Commonwealth from introducing a school photo of the child taken at the time the offense occurred as well as district court records from 2010 and 2011. The court permitted the introduction of the photo.
During the trial, West stated that he did not require a KRE 412 hearing on the child's sexual activity with another person or alleged pornography because there was not a sufficient basis for those allegations.
A two-day jury trial commenced on January 12, 2015. West's defense to the charges was that he did not commit any sexual abuse and that the child and her mother made up the allegations as revenge. We shall only detail the witness testimony that is necessary for our resolution of this appeal.
Detective Gabbard testified that he investigated the accusation of child sex abuse that began with the receipt of a 911 call on March 19, 2014, from the child's mother. The child was interviewed in early April by a third party at the Child Advocacy Center pursuant to the protocols in place, and West became the suspect. Detective Gabbard, along with another detective, met West at his house shortly thereafter to discuss the allegations. During an interview at the police station, West said the allegations were a lie and came about because the child was trying to get marijuana from him. He also said the allegations were in retaliation for him bringing charges against the child's mother for assault. West told the detectives that on the night in question, he had been drinking and came home. The child was at the house, and she began feeding him shots of alcohol to get him drunk. West said he passed out in the living room. When he woke up, the child was French kissing him on the mouth. He said he thought it was his wife, Elaine Hall, and he pushed the child off when he realized it was not her. He said he told his wife that morning what had happened. The detectives stopped the interview to ask his wife if she could confirm that West had told her what had happened in the morning. She did not confirm this information and said he had only recently told her.
In addition to talking with West, Detective Gabbard spoke with the child's mother. No exact timeframe was given for the allegations, but the sex abuse and marijuana allegations took place at different residences. Also as a part of his investigation, Detective Gabbard listened to recorded telephone conversations, including one where West stated that he was keeping the child from smoking marijuana on the street by allowing her to smoke it at his house. On cross-examination, Detective Gabbard stated that the police department did not further investigate allegations that the mother was providing the child with marijuana. He confirmed that the child and West stated that the kissing incident happened in different places in the house.
Qwantea Dancer, the child's mother, testified next. The child is the eldest of her five children, and they all live in Newport along with her husband. West is her father, who lives with his partner/wife, Elaine, her half-sister, and Elaine's sister and daughter. Dancer described her relationship in the past with West as mostly good, stating that they spent holidays together and socialized. Her children would visit at West's house, and the child saw him more than the others. The child would go by herself or with her brother. Dancer stayed with her father for a short time. In 2010, the child was in 6th grade. Dancer was living in Cincinnati, while West lived in two places in Newport that year.
Dancer did not find out about the sex abuse allegation until 2014. The day the child told her what had happened with West, Dancer said she and West had had an argument over the phone. Three days before this, Dancer had reached out to Elaine to say she did not approve of West showing her son some text messages. West was upset that Dancer had spoken with Elaine and that she had told Elaine he had been with another woman. West was angry that Dancer had "stabbed him in the back." West then told Dancer that the child had been lying to her and that she had asked him to buy marijuana for her two weeks previously. Dancer asked why West had not told her earlier so that she could have dealt with it. The child did not know West had told Dancer about her trying to get drugs from him. The child arrived home with a friend and told Dancer that something had happened and started crying. Dancer "lost it" and left the house. She went to West's house to confront him but instead called 911 while she was standing outside of his house. Dancer returned home, and the police arrived to take statements from her and the child.
Dancer did not allow her daughter to smoke marijuana, although she found out she had done so. She had punished the child for several months as a result. Dancer intended to ask the child about West's accusation, but she said she never got around to it because the child told her about the sex abuse allegation. Dancer admitted that she had smoked marijuana in the past with West, but she never had with her daughter. She knew her daughter was aware that she smoked marijuana.
The child testified next. At the time of the trial, she was sixteen years old; she was born in 1998. She lived with her mother, step-father, and four siblings. West is her grandfather, and the child testified about the good relationship she had with him prior to the incident. The Commonwealth asked the child to describe incidents with West that made her uncomfortable. She said he had done inappropriate things to her at his house. She admitted that she could not remember exactly when the incident happened and that she did not tell anyone immediately after it happened.
The incident took place at West's house when other residents were present in other rooms. West was not at home when the child went into the back room to watch television on the foot of the bed, where she fell asleep. The child was wearing sweatpants and a shirt with a sports bra under it. West arrived home and entered the room where she was sleeping, which woke her up for a short time. West got onto the bed, and she stated that she was not all the way asleep. The child then described what West did to her. She said West touched her and put his hands down her pants and under her underwear. He rolled her over onto her back and told her, "Boo, you need to shave." He touched her vagina and moved his hands around and his fingers inside of her. West then lifted her shirt and sports bra and sucked on her breasts. He did not say anything to her. She did not say anything to him and kept her eyes closed. When he was finished, he pulled the bra and shirt back down. He told her to take her pants off. She said no and ran to the bathroom, where she stayed for a period of time. West knocked on the door and asked if she was okay. She did not respond. The child exited the bathroom but did not see anyone. She went back into the back room and laid down. West came back into the room, got into bed with her, and told her to pull her pants down. The child got up and went to the living room to lay on the couch with Elaine, who was asleep. She did not wake up Elaine or anyone else to tell them what had happened. The child fell asleep on the couch.
In the morning, Elaine had already gotten up by the time the child awoke. West tried to help her get off the couch, but she told him she was fine. Elaine and West were in the kitchen, and West told Elaine that he was going to have to leave soon and go far away. He asked the child if she wanted him to "cut them off" referring, she thought, to his arms. The child then got dressed to go home. She did not tell her mother what had happened because West asked her not to when he was walking her home. West asked her if she was going to tell anyone and whether she was going to come back the following weekend. She did not respond. When the child saw her mother that day, her mother asked if anything was wrong. The child said nothing was wrong. She could not remember what happened after that.
The Commonwealth asked the child if West had done anything else that made her feel uncomfortable. The child said that she was sitting on the bed wearing loose pajama pants with her legs crossed when he put his hand up the legs of her pants. She would not let his hand get past her knees. The child said West showed her how to smoke through his nose. She also said he sucked on her toes. She said she told him that was nasty. She did not relate anything else that was inappropriate. The child continued to see West after he did this. She felt scared but did not think he was going to do it again. She thought he believed she was not going to tell anyone what had happened. She said she and West shared a lot of secrets.
The child lived in Cincinnati at the time the sex abuse incident happened and later moved back to Kentucky. During her 9th grade year when she attended Newport High School, the child said West would give her money for school and "other stuff" when she went over in the morning. By "other stuff," she meant marijuana. She described smoking marijuana with West, and sometimes her friends, at his residence several days a week before and after school beginning on her fifteenth birthday
The child said she had been at West's house the morning of the day she decided to tell her mother about the sex abuse. West had not been there. At school, she told a friend about what had happened, and her friend convinced her to tell her mother. The child called her mother to tell her she had something to tell her after school. Her mother said she could stop at West's house on the way home, but she might not want to because they had gotten into an argument. The child went straight home. She only told her mother about the molestation when she went home that day but had since told her about the marijuana usage. She also did not mention the marijuana usage when she was interviewed. She did not return to West's house to smoke after she reported the molestation.
At the conclusion of the trial, the jury returned a verdict finding West guilty of first-degree sexual abuse and of second-degree unlawful transaction with a minor. The jury fixed his sentence for the sexual abuse conviction at three years and for the unlawful transaction conviction at two years, to be served concurrently. The circuit court entered a judgment finding West guilty pursuant to the jury's verdict and scheduling a sentencing hearing.
Prior to the sentencing hearing, West moved the circuit court to enter a judgment of acquittal based upon the evidence presented at trial and for a new trial. West's brief on the motions addressed the credibility of witness testimony, while the Commonwealth argued in its brief that the convictions were supported by the evidence at trial. The court entered a judgment and sentence on April 15, 2015, sentencing West to three years' incarceration pursuant to the jury's verdict, thereby denying West's motions. This appeal now follows.
A duplicate judgment was entered on September 28, 2016, following the entry of an order by the circuit court related to West's motion for a belated appeal. --------
On appeal, West contends that the circuit court abused its discretion when it permitted the Commonwealth to present subsequent bad acts evidence, which he asserts violated several rules of evidence and his right to a fair trial. The disputed evidence consisted of testimony about separate incidents where the child claimed West made her feel uncomfortable when he put his hand up her pants leg and sucked on her toes.
We review a trial court's decision to admit or exclude evidence for abuse of discretion:
Trial courts must apply the rules of evidence to control the trial and to avoid the injection of collateral and overly prejudicial matters. To this end, the trial courts are given the power to determine the admissibility of all evidence and are given substantial leeway - sound discretion - in making those determinations. For this reason, an appellate court will review a trial court's evidentiary rulings for an abuse of discretion, and will determine that a trial court acted within that discretion absent a showing that its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).Commonwealth v. Bell, 400 S.W.3d 278, 283 (Ky. 2013).
We shall begin with a discussion of the applicable rules regarding the introduction of evidence. KRE 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Generally, "[a]ll relevant evidence is admissible," unless otherwise provided, and "[e]vidence which is not relevant is not admissible." KRE 402. But KRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."
KRE 404 governs the introduction of character evidence and evidence of other crimes. KRE 404(b) specifically addresses evidence of other crimes, wrongs, or actions, and provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
KRE 404(c) includes a notice requirement for criminal cases:(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
[I]f the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.
In Graves v. Commonwealth, 384 S.W.3d 144, 147-48 (Ky. 2012), the Supreme Court cautioned that:
KRE 404(b) is "exclusionary in nature," and "any exceptions to the general rule that evidence of prior bad acts is inadmissible should be 'closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.'" Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982)).In Bell v. Commonwealth, 875 S.W.2d 882, 889-90 (Ky. 1994), the Supreme Court set forth a three-prong test a party must meet before evidence of other crimes or bad acts may be admitted. The proffered evidence must be relevant and probative, and its prejudice must not substantially outweigh it probativeness. "Showing the evidence comes within KRE 404(b) is only the first step in deciding the admissibility of the evidence. Additionally, the trial court must weigh the evidence's probativeness against the danger of undue prejudice." Bell, 400 S.W.3d at 283. "Undue prejudice is most often found when there is a risk that the evidence 'might produce a decision grounded in emotion rather than reason' or where the evidence 'might be used for an improper purpose.' Kentucky Evidence Law at § 2.15[3][b]." Wilson v. Commonwealth, 438 S.W.3d 345, 350 (Ky. 2014).
Both parties have cited to Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002), for the rule of law that "evidence of similar acts [of sexual abuse] perpetrated against the same victim are almost always admissible for those reasons [to prove intent, plan or absence of mistake or accident]. Price v. Commonwealth, Ky., 31 S.W.3d 885, 888 n.4 (2000)." West contends that the separate incidents were not intertwined with or close in time to the incident for which he was convicted. Because his defense was that the touching did not happen at all, the disputed evidence the Commonwealth sought to introduce to show the touching was not accidental, was not probative.
We have reviewed the testimony in question, and while we agree that there is some confusion as to when the separate incidents occurred, we hold that the circuit court did not abuse its discretion in permitting the Commonwealth to introduce this testimony through the child. The child had already testified extensively about the sexual abuse incident and she only briefly testified about the other two incidents, which did not amount to sexual abuse. The jury had the prerogative to believe the child's testimony or not, and it clearly believed her allegation of sexual abuse and that West was the perpetrator. Even if the introduction of this testimony constituted error, we hold that this error was harmless because it did not affect West's substantial rights based upon the properly admitted testimony. Kentucky Rules of Criminal Procedure (RCr) 9.24.
For the foregoing reasons, the Campbell Circuit Court's judgment of conviction is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John Gerhart Landon
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky