Garrett v. Com., 1999-SC-0356-MR.

• Decision Date: 14 June 2001
• Docket Number: No. 1999-SC-0356-MR.,1999-SC-0356-MR.
• Citation: 48 S.W.3d 6
• Parties: Bernice Milton GARRETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

48 S.W.3d 6

Bernice Milton GARRETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0356-MR.

Supreme Court of Kentucky.

June 14, 2001.

As Amended June 19, 2001.

COPYRIGHT MATERIAL OMITTED

V. Gene Lewter, Fayette County Legal Aid, Inc., Lexington, Counsel for Appellant.

A.B. Chandler, III, Attorney General, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

Appellant Bernice Milton Garrett was convicted in the Fayette Circuit Court of one count of first-degree rape, one count of second-degree sodomy, three counts of first-degree sexual abuse, and two counts of second-degree sexual abuse, all perpetrated against his biological daughter, T.J., during the period extending from approximately 1991 through December 1997. Appellant was sentenced to concurrent terms of imprisonment of twenty-four years for rape, six years for sodomy, two years each for first-degree sexual abuse, and twelve months each for second-degree sexual abuse. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting that (1) there was insufficient evidence to convict him of first-degree rape; (2) Dr. Katherine Bright should not have been permitted to repeat the history of sexual abuse related to her by T.J.; (3) the contents of a diary kept by T.J. during the period in question should have been admitted in its entirety; and (4) defense counsel should have been permitted during closing argument to discuss the fact that T.J. was pregnant at the time of trial. Finding no reversible error, we affirm.

T.J.'s date of birth was December 26, 1984. Until December 1997, she lived in the same household with Appellant. T.J. testified that Appellant began sexually abusing her when she was six years old, at first fondling her chest and vaginal areas, later subjecting her to oral sodomy, and, finally, to sexual intercourse. Three other witnesses partially corroborated her testimony. T.J.'s mother, Hazel Garrett, testified that when T.J. was approximately ten years old, she (Mrs. Garrett) entered a bedroom and discovered T.J. lying on her back on the bed with her legs up and Appellant positioned between her legs looking at her vaginal area. Appellant explained that T.J. had complained of a rash and that he was examining it. T.J.'s elementary school friend, E.C., testified that, when she and T.J. were in the fifth grade, she visited the Garrett residence and observed Appellant place his hand on T.J.'s upper thigh. Upon becoming aware of E.C.'s presence, Appellant removed his hand from T.J.'s thigh and T.J. became visibly upset. A neighbor, Georgia Duncan, testified that, on December 5, 1997, she went to the Garrett home to inform Appellant of the death of a mutual acquaintance. Upon reaching the front door, she observed T.J. lying on her back on the couch wearing a short nightgown with Appellant crouched between her legs and fondling her vagina. Duncan testified that it appeared as if Appellant was giving T.J. a pelvic examination.

Appellant was arrested on January 19, 1998 and arraigned in the Fayette District Court the following day. He was waived to the grand jury on January 27, 1998 and indicted on March 23, 1998. Meanwhile, Dr. Katherine Bright, a pediatrician specializing in sexual abuse evaluations, examined T.J. on February 9, 1998. She obtained a history from T.J., then performed a complete pediatric examination. Examination of T.J.'s vaginal area revealed no abnormalities except a nonspecific fragility of the posterior fourchette, which Dr. Bright testified could be attributable to any one of a number of possible causes unrelated to sexual abuse. The examination revealed no sexually transmitted diseases, no pregnancy, and an intact hymen. The doctor testified that a normal pelvic examination does not rule out a history of sexual abuse and an intact hymen does not rule out a history of sexual intercourse. She explained that the hymen does not always rupture during intercourse and that child victims are often too inexperienced to accurately describe the extent of penetration that occurred during an alleged act of sexual intercourse. Since the examination was essentially normal, no treatment was rendered.

I. SUFFICIENCY OF THE EVIDENCE.

Appellant asserts there was insufficient evidence to convict him of first-degree rape. He argues that T.J.'s trial testimony with respect to the dates on which the alleged abuse occurred so varied from the statements she gave to the police, as reflected by the indictment, that her credibility was insufficient to support a conviction absent corroboration; and that Dr. Bright's testimony did not corroborate T.J.'s claim that she had engaged in sexual intercourse. See Carrier v. Commonwealth, Ky., 356 S.W.2d 752 (1962).

The standard of review with respect to the sufficiency of the evidence is as stated in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991):

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

The indictment described eleven separate offenses and recited the year each offense was alleged to have occurred. At trial, T.J. testified not to the year each offense was committed, but to her age at the time each offense was committed. We agree with the Court of Appeals' observation in Farler v. Commonwealth, Ky.App., 880 S.W.2d 882, 886 (1994), that it is "wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the abuse occurred." As in Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), the evidence here was as specific as is usually found in such cases and ample to separately identify the various offenses charged.

Corroboration in a child sexual abuse case is required only if the unsupported testimony of the victim is "... contradictory, or incredible, or inherently improbable." Robinson v. Commonwealth, Ky., 459 S.W.2d 147, 150 (1970); see also Commonwealth v. Cox, Ky., 837 S.W.2d 898, 900 (1992); Dyer v. Commonwealth, Ky., 816 S.W.2d 647, 651 (1991), overruled on other grounds, Baker v. Commonwealth, Ky., 973 S.W2d 54 (1998). Otherwise, discrepancies in the victim's testimony are matters of credibility going to the weight to be given by the jury to the child's testimony. Commonwealth v. Cox, supra, at 900.

T.J.'s testimony occasionally contradicted her previous statements to the police as to her age and the exact nature of Appellant's conduct with respect to the alleged offenses. To the extent that her testimony as to her age and Appellant's conduct corresponded with the year and the offense charged in the indictment, Appellant's motions for directed verdict were overruled. To the extent that it did not, the motions were granted. The trial judge directed verdicts of acquittal with respect to Count 4 (second-degree rape in 1996), Count 7 (first-degree sodomy in 1995), and Count 8 (first-degree sexual abuse in 1995); and reduced Count 1 (first-degree rape in 1991) and Count 6 (first-degree sodomy in 1994) to first-degree sexual abuse and second-degree sodomy, respectively. The jury found Appellant not guilty under Count 2 (first-degree rape in 1994) and found Appellant guilty under Count 5 not of the charged offense of first-degree sodomy, but of the lesser included offense of first-degree sexual abuse. Thus, the trial judge carefully considered the evidence in ruling on the motion for directed verdicts of acquittal, and the jury found Appellant guilty only of those offenses that were supported by T.J.'s testimony at trial. As to Count 3, first-degree rape in 1995 or 1996, T.J. testified that when she was eleven years old, Appellant had sexual intercourse with her, that the penetration was "just a little bit," and that it "hurt." (T.J.'s eleventh birthday occurred on December 26, 1995.) There was nothing so contradictory, incredible or inherently improbable about this testimony as to require corroboration.

II. HEARSAY EVIDENCE: KRE 803(4).

Dr. Bright testified that when she examined T.J. on February 9, 1998, T.J. gave her a history of being sexually abused from age seven, including sexual touching, oral sodomy, and sexual intercourse. Dr. Bright was not permitted to repeat T.J.'s identification of the perpetrator or the details of the sexual acts described by T.J. Appellant asserts that Dr. Bright was an examining physician, not a treating physician, and, thus, her repetition of the history related to her by T.J. should have been excluded on grounds that its prejudicial effect outweighed its probative value. Drumm v. Commonwealth, Ky., 783 S.W.2d 380, 385 (1990); see also Miller v. Commonwealth, Ky., 925 S.W.2d 449, 451 (1995); Bell v. Commonwealth, Ky., 875 S.W.2d 882, 887-88 (1994); Sharp v. Commonwealth, Ky., 849 S.W.2d 542, 544-45 (1993). The Commonwealth responds that Dr. Bright was, in fact, a treating physician, because she testified that she saw T.J. for the purpose of both examination and treatment, thus obviating the need to apply the balancing test described in Drumm, supra. We conclude that the distinction between treating and examining physicians was eliminated by the adoption of KRE 803(4); thus, the balancing test as described in Drumm no longer applies.

Prior to Drumm, the common law rule in Kentucky was that a physician consulted for the purpose of prescribing treatment could testify to the case history related by the patient, but that a physician consulted only for the purpose of examination or...