Souder v. Com.
| Decision Date | 16 October 1986 |
| Citation | 719 S.W.2d 730 |
| Parties | Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Terry Souder has been convicted of four different criminal offenses associated with the physical and sexual abuse of a small child. These are: (1) first-degree sodomy with sentence of life imprisonment; (2) first-degree assault with sentence of twenty years imprisonment; (3) first-degree criminal abuse with sentence of ten years imprisonment; and (4) first-degree sexual abuse with sentence of five years imprisonment. The judgment orders that these terms be served consecutively. 1
In early December, 1984, the child's mother moved into Souder's trailer, to live with him. She brought along her two and one-half year old daughter, who was thereafter the victim of the child abuse. The abuse allegedly occurred on Monday, December 17, while the child was left alone in the trailer with the appellant. Upon her return, the child's mother found her child obviously injured. The appellant claimed that the child had fallen from the commode while attempting to turn on the lights. After some hesitancy, the child was taken to a nearby hospital for emergency treatment. She had injuries to her mouth which were diagnosed as burns, multiple areas of substantial bruising about her body, and a badly swollen arm.
The child was then moved to a second hospital, ostensibly for further treatment of the arm, but apparently primarily for examination regarding potential child abuse. At the second hospital the child was kept overnight, and physically examined for injuries from sexual abuse. The next morning the child was taken from the second hospital by her grandmother, who then took her to a third hospital in Cincinnati where she was further examined for sexual abuse, and also questioned by a social worker using "anatomically correct dolls" in an effort to discover evidence as to what had occurred. The child had bruising and tearing in both the vaginal and anal areas. The evidence of penetration of the vagina was incomplete, and the jury acquitted appellant of the rape charge, but found him guilty of first-degree sexual abuse.
All of the physical injuries proved to be relatively minor, and were successfully treated by the emergency room treatment that the child received at the various hospitals. None has required subsequent treatment, and there is no indication of any permanent physical injury. The existence or extent of psychological trauma can only be assumed. It is not developed by the evidence.
The child was so young as to be incapable of giving testimony at the trial. She would not answer any questions about the events. However, there was testimony from others, as will be discussed, indicating that the child identified the appellant as the person who had subjected her to the various physical injuries which were observed upon treatment. Further, there was testimony from both the child's grandmother and her mother sufficient to prove that these injuries had occurred while the child was in the appellant's care.
First we consider whether there was any evidence to sustain appellant's conviction for having committed anal sodomy on the child. The small rectal tears found on the victim may have been sufficient to indicate that there had been some effort to penetrate the victim's anus, but there was nothing to prove "deviate sexual intercourse" which is one of the essential elements in sodomy in the first degree as set out in KRS 510.070. The definition of "deviate sexual intercourse," found in KRS 510.010(1), requires (in pertinent part) an "act of sexual gratification ... involving the sex organs of one person and the ... anus of another." (Emphasis added.) The medical evidence of record tends to prove that the rectal tears were not made by a male's sex organ, but on the contrary by some hard object other than a male sex organ. The only direct evidence on this point was testimony from the child's mother that when she asked the child in the hospital "what happened to her tail," "[s]he said Terry [the appellant] hurt it with his finger." The appellant claims that this evidence was inadmissible hearsay, but even if admissible it would add nothing proving the offense of sodomy. The appellant's Motion for Directed Verdict on the charge of first-degree sodomy should have been sustained.
Similarly, there is no evidence to prove an essential element of first-degree assault, namely, "serious physical injury." KRS 500.080(15) defines "Serious physical injury" as "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss of impairment of the function of any bodily organ." The only argument made by the Commonwealth to support "serious physical injury" is that because the child sustained burns in and about the mouth, which, standing alone, admittedly were not serious, that the child may have been exposed to smoke fumes which "create[d] a substantial risk of death." KRS 500.080(15), supra. The child's grandmother testified, over objection, that the child told the grandmother that the appellant "had burnt her with a cigarette, or cigarette lighter." Without in any way depreciating the hideous nature of such an act, the fact remains that there was nothing to prove that this child was in danger of death from this injury, or from any other injury inflicted upon her.
Cooper v. Commonwealth, Ky., 569 S.W.2d 668 (1978), referred to at oral argument, is inapposite. Cooper was a rape case wherein there was a physician's testimony that, although the victim was not in danger of death from the physical injuries inflicted upon her, because she was a "74-year-old woman with heart trouble and chronic lung disease" she was "at risk of death" from being "scared to death." Id. at 670. There was no similar evidence in this case to support a finding of "a substantial risk of death." Therefore, there was no occasion for submitting this determination to a jury. Cf. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977).
The conviction for assault in the first degree must be set aside. Upon a new trial, if the evidence is the same, it is sufficient to sustain a conviction for intentionally causing physical injury to another person by means of a dangerous instrument, which is assault in the second degree. KRS 508.020(1)(b).
There was evidence admitted at the trial from five different witnesses, the child's mother, the grandmother, two different physicians, and a social worker, which the appellant challenges as inadmissible hearsay. This testimony consisted of statements made by the child to her mother and grandmother (at different times and in response to questions) as to how she was injured and who had injured her, statements made to the social worker who was investigating the possibility of sexual abuse with a view toward prosecution of the offender, and statements in the medical records as to who caused the injuries which were testified to by the physicians.
Rule 801(c) of the Federal Rules of Evidence provides a working definition of hearsay, as follows:
" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matters asserted."
As such, all of the statements made by the child victim in the present case qualify as hearsay declarations. They were offered to prove what the child said about how she was injured and who injured her. Therefore, the sole question with reference to each of these various statements is whether such statement qualifies as evidence under some recognized exception to the hearsay rule.
The exceptions to the hearsay rule include spontaneous statements and excited utterances, certain statements made for the purpose of receiving medical treatment, and business records (including medical records) kept in the regular course of business. However, each of the various exceptions to the hearsay rules are defined and circumscribed with conditions, limitations and qualifications which are intended to provide the testimony with the same quality and reliability that would exist if the testimony were presented by a competent witness, in court and under oath, and subject to cross-examination. Anything less would implicate the confrontation clause of our Federal and State Constitutions. U.S. Const. amend. VI, Ky. Const. Sec. 11. Thus, it will not do, as the Commonwealth contends, to create new exceptions simply because the evidence is arguably trustworthy and reliable, or is perceived as necessary to serve the interests of justice. Nor will it suffice to obscure the essential hearsay characteristics of the evidence under broad application of the term "res gestae," which in itself, is "a useless and misleading shibboleth...." Preston v. Commonwealth, Ky., 406 S.W.2d 398, 400 (1966).
The general rule as to when an out-of-court statement should be admitted under the spontaneous statement exception to the hearsay rule is well set out in Lawson, Kentucky Evidence Law Handbook, 8.60(B) (2d ed. 1984). Lawson states:
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