Chames v. Commonwealth

• Decision Date: 02 November 2012
• Docket Number: NO. 2011-CA-000173-MR,2011-CA-000173-MR
• Parties: WILLIAM CHAMES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

WILLIAM CHAMES APPELLANT

v.COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011-CA-000173-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: NOVEMBER 2, 2012

TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE PATRICIA M. SUMME, JUDGE

ACTION NO. 10-CR-00126

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

BEFORE: MOORE, STUMBO, AND VANMETER, JUDGES.

VANMETER, JUDGE: William Chames appeals from the Kenton Circuit Court's judgment and sentence finding him guilty of sexual abuse in the first degree (two counts) and attempted sodomy in the first degree and sentencing him to two and a half years' imprisonment for each count of sexual abuse and seven and a halfyears' imprisonment for attempted sodomy, to run concurrently. For the following reasons we affirm in part, vacate in part, and remand for further proceedings.

In February 2007, Chames moved in with a woman named Mary, and Mary's daughter, S.S., who was sixteen years old at the time. Chames married Mary four months later. In November 2009, S.S. was placed into foster care. Once in foster care, S.S. changed high schools, bringing her into contact with Michelle Kruse, a teacher for students with moderate to severe functional and mental disabilities. During a meeting with Ms. Kruse, S.S. alleged that Chames had sexually abused her on several occasions. Ms. Kruse later reported the disclosures.

The Child Advocacy Center ("Center") conducted a forensic interview with S.S., which Detective Joanne Rigney of the Covington Police Abuse Unit attended. S.S. maintained that on separate occasions, Chames lifted her shirt and sucked on her breasts, forced her hand onto his exposed penis, and placed his penis in her face, directed at her mouth. In January 2010, Det. Rigney interviewed Chames and Mary regarding S.S.'s allegations. Thereafter, Chames was indicted on two counts of sexual abuse in the first degree and attempted sodomy in the first degree.

Prior to trial, the Commonwealth filed a motion in limine requesting that the court prevent Chames from introducing evidence of prior allegations of sexual abuse made by S.S. against him at a family court adjudication in July 2008. The trial court granted the Commonwealth's motion on the basis that character trait evidence of the victim of criminal sexual conduct is inadmissible. Chames alsofiled a motion in limine requesting that the trial court exclude evidence of him providing S.S. with pornographic materials, and allowing S.S. to watch pornographic movies with him and Mary. He also sought to exclude a portion of Mary's testimony in which she stated that he had acted violently towards S.S. when he was taking her dog away. The trial court denied Chames' motion and admitted the evidence.

During cross-examination of S.S., she was questioned about inconsistencies between her testimony at trial and statements she had made during the forensic interview with the Center. The Commonwealth then examined Det. Rigney regarding the forensic interview, who testified that S.S. made consistent statements in her testimony. Chames objected on the basis of improper bolstering of a witness, which the trial court overruled. At the close of the Commonwealth's case, Chames moved for a directed verdict, which the trial court denied.

Following the close of all evidence, Chames asked the trial court to include a jury instruction for sexual abuse in the second degree as a lesser-included offense of sexual abuse in the first degree. The trial court declined to include the instruction. The jury found Chames guilty of all three counts and sentenced him to a total of seven and a half years' imprisonment. Chames appeals, alleging a litany of errors.

Chames first argues the trial court abused its discretion by excluding evidence of prior allegations of sexual abuse made by S.S. against him. We disagree.

We review a trial court's ruling on the admissibility of evidence for an abuse of its discretion. Childers v. Commonwealth, 332 S.W.3d 64, 68 (Ky. 2010) (citation omitted). An abuse of discretion occurs when a decision by the trial court is "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Id. (citation omitted).

Generally, an attack on a witness' credibility by reference to specific instances of conduct during cross-examination of the witness is permitted if probative of truthfulness or untruthfulness and the inquiry has a factual basis. KRE¹ 608(b). Kentucky's highest court recently undertook the issue of whether a defendant accused of sexual abuse may attack the credibility of their accuser during cross-examination on a prior false accusation in Dennis v. Commonwealth, 306 S.W.3d 466 (Ky. 2010). The Court noted that both federal and state courts have held such evidence to be admissible, but the proponent of such evidence must make a preliminary showing that the prosecuting witness made a prior accusation and that the accusation was demonstrably false. Id. at 475. This requires the proponent to prove "there is a distinct and substantial probability that the prior accusation was false[,]" rather than merely "an inconclusive investigation of the allegation." Id. For example, in Capshaw v. Commonwealth, 253 S.W.3d 557, 565 (Ky.App. 2007), we held that prior accusations are demonstrably false if the victim has admitted the charges were false or the charges have been disproved.(citations omitted). But a defendant's "inference that the accusation is false is insufficient to meet the demonstrably false standard." Id. (citation omitted).

In the case at bar, the record reveals that S.S. made prior allegations against Chames, which, after being substantiated by the Cabinet for Health and Family Services, were addressed in a petition before a family court in 2008. The family court dismissed the petition against Chames, finding S.S. to not be credible, and therefore unable to substantiate her sexual abuse allegations against Chames. However, nothing in the record indicates S.S. admitted that the allegations were false or had a motive to fabricate, nor has Chames proved the allegations were false. Our review of the record reveals that S.S.'s testimony before the family court was deemed as unreliable to support the petition. Thus, we find no abuse of discretion in the trial court's decision to exclude the evidence regarding the prior accusations against Chames made by S.S.

Next, Chames contends the trial court abused its discretion by allowing the Commonwealth to introduce evidence that Chames supplied S.S. with, and made her view, pornographic material, and pushed and elbowed her on one occasion. We disagree.

KRE 404(b) prohibits evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith[,]" unless "offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;" or if "so inextricably intertwined with other evidence essential to the case[.]"

S.S. testified that Chames gave her pornographic magazines and on one occasion forced her to watch a pornographic movie. The Commonwealth argued the evidence was indicative of an overall plan concocted by Chames to increase S.S.'s comfort level with sexual behavior. Though prejudicial to Chames' character, the evidence clearly serves a purpose other than to vilify Chames; the evidence was relevant to show that Chames had the intent and concocted a scheme to perform sexual acts with S.S., and used the pornography to aid him in his objective. See Gilbert v. Commonwealth, 838 S.W.2d 376, 378 (Ky. 1991) (holding that evidence of defendant forcing his stepdaughters to watch pornographic movies reflected a part of the overall scheme to aid him in engaging in sexual intercourse with stepdaughters). Further, such evidence has been held to be "necessary for the jury to see the entire picture and evidence that provides the necessary perspective is competent." Id. at 379 (citation omitted).

Mary testified about an incident in which Chames took away S.S.'s puppy, and when S.S. tried to stop him, Chames pushed her out of the way and elbowed her. Since Chames was accused of crimes that involve the element of forcible compulsion, evidence regarding prior incidents in which he used force against S.S. was relevant to the issue of forcible compulsion. Forcible compulsion can involve the implied threat of physical force which places a person in fear of physical harm. KRS² 510.010(2). Thus, Chames' prior acts of violence towards S.S. are admissible to prove S.S. feared that Chames would use physical force if she didn'tcomply with his sexual advances. See Yarnell v. Commonwealth, 833 S.W.2d 834, 837 (Ky. 1992) (holding that evidence of past physical and emotional duress is admissible to prove children lived in continued fear of what defendant would do to them or their mother, which caused them to go along with deviate sexual behavior). Accordingly, the trial court did not abuse its discretion by admitting evidence of Chames providing S.S. with pornography or being violent towards her.

Chames also makes the argument that the trial court abused its discretion by permitting the Commonwealth to bolster S.S.'s testimony. Specifically, Chames claims the trial court should not have admitted Det. Rigney's testimony that S.S. made prior consistent statements in her interview with the Center. We disagree.

KRE 801A(a)(2) provides that a prior out-of-court statement of a witness is inadmissible unless "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive[.]" Chames introduced evidence that S.S. made statements during her testimony that were inconsistent with statements made during her interview with the Center. During Det. Rigney's testimony, evidence was elicited that S.S. made some consistent statements in her testimony with those made in her interview by the Center. Chames' defense throughout trial...