Ebertshauser v. Commonwealth, No. 2003-CA-002707-MR (KY 2/4/2005)
| Decision Date | 04 February 2005 |
| Docket Number | No. 2003-CA-002707-MR.,2003-CA-002707-MR. |
| Parties | Paul EBERTSHAUSER, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Bullitt Circuit Court, Honorable Thomas Waller, Judge, Action No. 99-CR-00175.
Eric Griffin Farris, Lorie B. Rakes, Shepherdsville, KY, Brief for Appellant.
Lee R. Remington, Shepherdsville, KY, Oral Argument for Appellant.
Gregory D. Stumbo, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Frankfort, KY, Brief for Appellee.
Kenneth Wayne Riggs, Assistant Attorney General, Frankfort, KY, Oral Argument for Appellee.
Before: COMBS, Chief Judge; GUIDUGLI and SCHRODER, Judges.
Paul Ebertshauser appeals the final judgment and sentence of imprisonment entered by the Bullitt Circuit Court on November 21, 2003. The judgment reflected a jury verdict which found Ebertshauser guilty of first-degree sexual abuse, a class D felony in violation of KRS 510.110, and imposed a one (1) year sentence. Ebertshauser raises three (3) issues on appeal. We affirm.
Ebertshauser was indicted on December 21, 1999, on the charge of first-degree sexual abuse. The indictment charged the following:
That on or about the 18th day of April 1999, in Bullitt County, Kentucky, [Ebertshauser] committed the offense of Sexual Abuse in the First Degree by engaging in sexual contact with J.P. a minor less than 12 years of age.
The underlying facts supporting the indictment reveal the following sequence of events. Ebertshauser and his wife, Dana, were babysitting J.P. on April 17, 1999, while J.P.'s mother attended "Thunder over Louisville." Dana is J.P.'s half-sister's grandmother. The Ebertshausers have babysat the children in the past, but J.P. had never stayed overnight unless her mother or another adult had stayed with her. During the day, the Ebertshausers and the children attended a party at a neighbor's home. Alcoholic beverages were consumed by the various adults in attendance. After the party ended, the Ebertshausers and the children returned home. On this night, J.P. was to sleep on the floor in the same bedroom as the Ebertshausers. J.P. testified that sometime during the night she awoke in bed with the Ebertshausers and that Paul Ebertshauser was fondling her genitals and then digitally penetrated her vagina. After this occurred, Ebertshauser left the bed and entered the bathroom. J.P. then left the bed and fell back asleep on the floor. J.P. did not report this incident until July 31, 1999, when she told her mother.
The case was originally brought to trial on January 15, 2002, but that trial ended in a mistrial after J.P. had already testified. Eventually, the case was retried on October 7, 2003. This trial ended in a jury verdict finding Ebertshauser guilty of first-degree sexual abuse and sentencing him to one year. Following a pre-sentencing investigation and a hearing on whether or not Ebertshauser was eligible for probation in light of KRS 532.045, the Bullitt Circuit Court entered judgment imposing the one year sentence and finding Ebertshauser was not eligible for probation. Ebertshauser was released on an appeal bond and this appeal followed.
On appeal, Ebertshauser claims his conviction and sentence should be reversed based upon three trial errors. First, he contends the trial court erred by denying his motion for a directed verdict at the completion of the Commonwealth's case because the Commonwealth had failed to prove venue. Related to this issue is Ebertshauser's claim that the trial court erred by permitting the Commonwealth to reopen its case and present evidence of proper venue. Next, Ebertshauser claims the trial court erred by refusing to permit him to use testimony from the first trial to show inconsistencies in J.P.'s testimony at the second trial. Finally, Ebertshauser argues that the trial court erred in its interpretation of KRS 532.045 in denying him probation because the court found he was in a position of authority when the sexual abuse occurred. We will address each issue in the order presented in the parties' briefs.
We first address Ebertshauser's claim that the trial court erred by permitting the Commonwealth to reopen its case and present proof that the crime occurred in Bullitt County, Kentucky. During the trial, the Commonwealth established only that the alleged abuse occurred at Ebertshauser's residence located at 165 Mockingbird Lane. Ebertshauser requested a directed verdict and specifically argued that the Commonwealth failed to establish proper venue. After discussing the issue for several minutes, the court made the following statement:
THE COURT: Well, Mr. Ferguson [the Assistant Commonwealth Attorney], the Court disagrees that it is not the burden of the Commonwealth to show that the alleged crime took place in the county where the indictment was returned, that being Bullitt County.
The Court made a note at the time that the Commonwealth presented its evidence that there had been no showing that the offense took place in Bullitt County.
On the other hand, in Rounds v. Commonwealth, [Ky., 139 S.W.2d 736 (1940)], it is stated that it only takes slight evidence, either direct or circumstantial, to sustain the venue since that does not affect the issue of guilt or innocence. So the question is whether or not there was sufficient slight circumstantial evidence to show that venue was in Bullitt County.
The parties made additional arguments and the court added:
THE COURT: I don't believe, Mr. Farris [Ebertshauser's attorney], that this Court should grant a Directed Verdict on that issue.
What I am going to do, I am going to allow the Commonwealth an opportunity to re-open its case to establish the venue.
So I will withhold a ruling on that Motion and see if the Commonwealth wants to do that. If they don't, then I may change my mind.
To which the Commonwealth responded:
THE COMMONWEALTH: Yes, sir. We will re-open our case.
The Commonwealth, over Ebertshauser's objection, recalled Detective Rick Melton of the Kentucky State Police who testified that the sexual abuse occurred at 165 Mockingbird Lane which is in the city of Shepherdsville, and in Bullitt County.
There can be no dispute that the burden to prove proper venue rests on the Commonwealth. KRS 452.510 provides as follows:
452.510 Criminal prosecutions
Unless otherwise provided by law, the venue of criminal prosecutions and penal actions is in the county or city in which the offense was committed.
In Commonwealth v. Cheeks, 698 S.W.2d 832 (Ky. 1985), the Supreme Court of Kentucky explained the reason why proper venue is so important when it stated:
The circuit courts of this state are never without "jurisdiction" to preside over the prosecution of offenses committed in Kentucky; rather, KRS 452.510 stipulates that "venue" is improper in the circuit court of a county other than that in which the offense has been committed. The purpose of mandating the prosecution of a case in the county in which the offense has been committed is to insure that the defendant is tried by an impartial jury from the vicinity in which the offense has been committed. The Constitution of Kentucky, Section 11 reads in part:
"... and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage... ."
According to Ballatine, vicinage is "the area surrounding a particular place, specifically the place where the cause of action is alleged to have arisen or where a crime is alleged to have been committed." Prosecution in the county in which the offense has been committed also insures that witnesses and evidence are more readily available to both the prosecutor and the defendant. "Venue" then is merely a statutory prescription that the prosecution be in the county in which the offense has been committed and that the prosecution is in a court which has "jurisdiction" to preside over the case, i.e. the circuit court of that county. The statutory prescription also requires proof by the prosecutor that the offense did in fact occur in the county in which the case is being prosecuted. It has generally been held in this state that it is not necessary to show direct evidence that the crime occurred in the county of its prosecution, but the fact may be inferred from evidence and circumstances which would allow the jury to infer where the crime was committed. See Gilley v. Commonwealth, 280 Ky. 306, 133 S.W.2d 67 (1939); Rounds v. Commonwealth, 282 Ky. 657, 139 S.W.2d 736 (1940); Vinson v. Commonwealth, Ky., 248 S.W.2d 430 (1952); Byrd v. Commonwealth, Ky., 283 S.W.2d 191 (1955); Woosley v. Commonwealth, Ky., 293 S.W.2d 625 (1956).
In the case before us, the trial court acknowledged that the Commonwealth had not presented sufficient proof of venue at the time Ebertshauser made his motion for a directed verdict. But the court, sua sponte, permitted the Commonwealth to re-open its case to establish this essential element of proof.1 Upon re-opening, venue was established. Thus, the issue is not whether the ruling on the motion for directed verdict was proper but rather did the trial court err in permitting the Commonwealth to re-open its case. Ebertshauser argues that the trial court abused its discretion when it allowed the Commonwealth to re-open its case and establish venue. But in the next sentence, he concedes that it is within the sound discretion of the court to permit the case to be re-opened for further testimony, citing Scheben v. George Wiedemann Brewing Co., 170 S.W. 948 (Ky. 1914). He also cites to Martin v. Commonwealth, 141 S.W.54 (Ky. 1911), for the proposition that the court's discretion is to be exercised wisely under the facts of each particular case, and for the purpose of promoting justice. The Commonwealth notes that Ebertshauser fails to cite to any authority that would prohibit such a re-opening in a criminal prosecution and this Court has not found any in its...
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