Durrum v. Commonwealth

Decision Date25 March 2021
Docket Number2019-SC-0591-MR
PartiesTRAVIS DURRUM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtUnited States State Supreme Court — District of Kentucky

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

NO. 18-CR-00266

MEMORANDUM OPINION OF THE COURT
AFFIRMING

Travis Durrum was convicted of one count of first-degree criminal abuse, one count of first-degree rape, one count of first-degree sexual abuse, and two counts of first-degree sodomy, of a victim under twelve (12) years of age. The jury recommended a sentence of eighty (80) years, which the trial court appropriately reduced to seventy (70) years, the maximum permitted under Kentucky Revised Statute (KRS) 532.110. This appeal followed as a matter of right.1 Having reviewed the record and the arguments of the parties, we affirm the judgment of the Franklin Circuit Court.

I. BACKGROUND

This case rests principally on the credibility and testimony of two individuals, the victim M.S.2 and the defendant Travis Durrum (Travis). In order to adequately understand, and analyze for possible misconduct, the Commonwealth's cross-examination of Travis and closing arguments, it is necessary to summarize in some detail the trial testimony of all seven witnesses.

Travis and his wife Juanita Durrum (Juanita) served as guardians for the victim, M.S. In July 2016, M.S.'s biological mother was in drug rehabilitation, and prior to her residing with the Durrums, M.S. was being cared for by her maternal grandmother. The grandmother would take M.S. to see her mother, which was not permitted. Juanita was related to M.S., and M.S. was put in the custody of Travis and Juanita in late July or early August 2016. M.S. was seven years old when she began living with the Durrums. The record, including M.S.'s testimony, is unclear as to the actual familial relationship between Juanita and M.S. In her testimony, M.S. stated she thought Juanita was her "great-aunt's sister."

During M.S.'s time with the Durrums, they resided at three locations. Initially, they lived in a small apartment in Lawrenceburg in Anderson County. In November 2016, the family moved to a townhouse in Franklin County and in March 2017, to an apartment in Franklin County. In addition to M.S. and theDurrums, Travis's sister Nicole, Nicole's boyfriend, and their children lived with them in the townhouse location. When they moved to the Franklin County apartment, Nicole and her family occupied an apartment across the hall.

This arrangement lasted until November 2017, when M.S. was removed from Travis and Juanita's custody by the Cabinet for Health and Family Services (CHFS) and placed with a foster family. Approximately one month after her placement, M.S. disclosed to her foster mother, Tiffany Parsons, that Travis had sexually abused her. The charged events are all alleged to have occurred in either the townhouse or apartment in Franklin County between October 2016 and November 2017.

At trial, the Commonwealth called four witnesses: CHFS social service investigator, Craig Gonzales; Tiffany Parsons; forensic pediatrician, Dr. Sugarman; and M.S. herself. Gonzales testified that upon receiving Parsons's report, he initiated an investigation and attempted to contact Travis at least four times. Travis refused any interview without an attorney. During visits to the Durrums' residence, Gonzales only spoke with Juanita. Gonzales stated that as he arrived during one of the contact attempts, he saw a male, whom he later recognized as Travis, throwing away a twin mattress. Gonzales further testified that M.S. indicated to him that there was a second child involved with the events. On cross-examination, Gonzales stated he was never able to substantiate the presence of or events regarding a second child.

Tiffany Parsons's testimony was limited. Parsons described the events surrounding M.S.'s first disclosure of the abuse, approximately a month aftercoming to Parsons's home. Parsons stated that upon being told of the abuse, she immediately contacted CHFS. Parsons also testified to M.S.'s good performance in school and M.S.'s concerns over others learning of her abuse. Parsons indicated M.S. became upset on occasion when she thought other people knew of what happened or were talking about her.

Dr. Sugarman's testimony related to the forensic examination she performed on M.S. Dr. Sugarman testified that this examination was "normal," but that a normal examination is not indicative of whether a specific event or series of events did or did not occur. Dr. Sugarman testified that the areas of the human body involved heal rapidly, and it had been a substantial period between the last contact between M.S. and Travis and the examination. At one point, the Commonwealth sought Dr. Sugarman's opinion on whether M.S. was telling the truth, the question was objected to, and the trial court sustained the objection. A copy of Dr. Sugarman's report was entered into evidence, with the portions concerning M.S.'s description of events redacted.

M.S. testified that Travis tried to initiate both vaginal and anal sex on more than one occasion. At the time of her testimony, M.S. was ten years old and testifying to abuse that began when she was seven years old and continued until she was eight. M.S. stated that Travis forced her to perform oral sex and that the abuse would occur after Travis arrived home from work if Juanita was not there. On cross-examination, defense counsel questioned M.S.'s veracity, calling into question the discrepancy between her original statements to authorities that "it happened almost every day" to her currentstatement that "it happened whenever he got a chance." Defense counsel also elicited statements from M.S. that Travis never moved out of the home prior to her removal in November 2017.

Travis called two witnesses and testified on his own behalf in efforts to rebut elements of M.S.'s testimony. Travis's sister Nicole and her family lived with the Durrums in the townhouse location and across the hall at the apartment location. Nicole testified that in her experience, Travis was never alone with M.S., but on cross-examination, she admitted she was not with them all the time so could not be certain they were never alone. Nicole further stated the two households effectively operated as one, with people coming and going without knocking. Nicole also testified that Travis separated from Juanita in August 2017 and never moved back into the home. During cross-examination, the Commonwealth also questioned Nicole regarding Travis's use of the last name "Durrum," with Nicole admitting that Travis took Juanita's last name when they married. Travis's mother, Sandra, also testified to the separation, though she was less specific as to the actual month Travis moved out and could not state that he never returned to the home to visit.

Travis took the stand to testify in his own defense. His defense was principally based on an assertion that he never had an opportunity to commit the acts described by M.S. He testified that during the period in question, he worked for a manufacturer in Shelbyville, often working both day and night shifts and purporting to have an hour-and-a-half commute each way. Travis also stated that he was never alone with M.S., that he never had any sexualcontact with M.S., and that M.S. never confronted him regarding his alleged behavior. Travis testified he moved out of the apartment during the second week of August 2017 after a fight with Juanita and never moved back into the apartment.

On cross-examination, the Commonwealth took issue with Travis's statement that his commute was an hour and a half to travel twenty-six miles of Interstate 64 to get to and from his job. They further questioned Travis's assertion that he worked extreme hours, emphasizing that Travis failed to introduce any corroborating evidence as to this work schedule, despite the fact such evidence should be easily available. The Commonwealth then began a series of questions relating to Travis and Juanita's relationship, specifically their marital fidelity. Specifically, the Commonwealth began by asking Travis if Juanita became pregnant after separating from Travis. Defense counsel objected to this question as irrelevant. The Commonwealth then rephrased the question to ask whether Juanita was having an affair during their marriage. In response, Travis stated it was not an affair, as they had an "open marriage." Travis's admission elicited a noise by the Commonwealth's Attorney, which Travis argues was "Eww" while the Commonwealth argues was "Ooh." The Commonwealth's Attorney then said, "I understand that's kind of outside the normal bounds of morality." The defense objected, and the Commonwealth appended an "[I]sn't it?" in an attempt to turn the statement into a question. The court directed the statement/question to be stricken and for the Commonwealth to "move on to something else." Despite the court's direction,the Commonwealth continued to question Travis on the morality of his lifestyle, effectively forcing Travis to comment on his own morality. Defense counsel did not object to this continued questioning. The Commonwealth then asked follow-up questions regarding Travis's other girlfriends...

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