Stringer v. Com.

• Decision Date: 20 November 1997
• Docket Number: No. 94-SC-818-MR,94-SC-818-MR
• Citation: 956 S.W.2d 883
• Court: United States State Supreme Court — District of Kentucky
• Parties: William F. STRINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 883

956 S.W.2d 883

William F. STRINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-818-MR.

Supreme Court of Kentucky.

Nov. 20, 1997.

Mark J. Stanziano, Somerset, for Appellant.

A.B. Chandler, III, Attorney General, Joseph R. Johnson, Criminal Appellate Division, Office of Attorney General, David A. Sexton, Criminal Appellate Division, Office of Attorney General, Dina Abby Jones, Criminal Appellate Division, Office of Attorney General, Frankfort, David A. Tapp, Special Assistant Attorney General, Somerset, for Appellee.

COOPER, Justice.

Appellant was convicted in the Pulaski Circuit Court of three counts of first-degree sodomy and two counts of first-degree sexual abuse. He was sentenced to confinement for twenty years on each of the sodomy convictions and confinement for one year on each of the sexual abuse convictions, all to run concurrently each with the others. He appeals to this court as a matter of right. Ky. Const. § 110(2)(b).

The indictment charged Appellant with four counts of first-degree sodomy and ten counts of first-degree sexual abuse of J.V., a minor child less than twelve years of age. In addition, he was charged with three counts of first-degree sexual abuse of N.P., B.C., and K.G., also children less than twelve years of age. He was acquitted of all counts except three counts of first-degree sodomy of J.V. and two counts of first-degree sexual abuse of J.V.

I. SUFFICIENCY OF THE EVIDENCE

J.V. testified that she was born on October 22, 1983 and that she was ten years old when the trial was held in May-June, 1994. The indictment charged offenses occurring in September and October 1992. At that time, J.V. was enrolled at Bev's Day Care Center, which was owned and operated by Beverly Mitchell, Appellant's daughter. Appellant lived two houses from the day care center and, although he was not employed by the center, he ran errands for Mitchell and transported children in his van. J.V. testified that the first incident of sexual abuse occurred after Appellant had taken all of the other children home in the van. He then drove J.V. to the fairgrounds, where he subjected her to acts of sexual contact and oral sodomy. The second occasion occurred under similar circumstances at Trinity Springs, where Appellant again subjected J.V. to sexual contact and oral sodomy. The third occasion occurred again at the fairgrounds, where J.V. claimed Appellant subjected her to sexual contact and two separate acts of oral sodomy. J.V. testified to other acts of sexual contact which are not relevant to this appeal, since Appellant was found not guilty of those charges.

Appellant claims the evidence was insufficient to prove his guilt because J.V. failed to testify to specific dates and times when the acts of sexual abuse occurred. In a felony case, the failure to prove the specific date of

                the offense is of no consequence unless time is a material ingredient of the offense.  Peyton v. Commonwealth, 288 Ky. 601, 157 S.W.2d 106 (1941).  In both Browning v. Commonwealth, Ky., 351 S.W.2d 499 (1961) and Salyers v. Commonwealth, Ky., 255 S.W.2d 605 (1953), it was held that the date of the act of incest is not a necessary element of the offense and that it sufficed that the Commonwealth proved that the offense was committed prior to the rendition of the indictment.  In Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), another child sex abuse case, the testimony concerning the dates of the offenses was confused and somewhat uncertain.  In one instance, the child testified the offenses occurred on the same date at another place;  in another instance, he testified to an offense occurring on "another Saturday."   We held that the evidence was as specific as is usually found in such cases and ample to separately identify the various offenses charged.  In Farler v. Commonwealth, Ky.App., 880 S.W.2d 882 (1994), the child victim could not pinpoint the exact dates on which the incidents occurred.  However, she testified that all of the sexual contact occurred before she reached twelve years of age and after the defendant had reached eighteen years of age.  "In our view, it was not necessary that [the victim] give specific dates that the offenses occurred.  It would be wholly unreasonable to expect a child of such tender years to remember specific dates...."  Id. at 886.   We agree.  The offenses obviously occurred when J.V. was less than twelve years of age, and that was the only relevant time element necessary to support these convictions.  KRS 510.070(1)(b)2;  KRS 510.110(1)(b)2
                

II. TESTIMONY OF J.V.

On the recommendation of J.V.'s treating psychologist, J.V. was permitted to testify from the circuit court library. Her testimony was transmitted by closed circuit television to a monitor in the courtroom where it was viewed by the jury and courtroom spectators. Appellant was permitted to remain in the library where he could observe J.V. "face to face" during her testimony. Ky. Const., § 11. The trial judge explained his decision as follows:

The Court sympathizes with the need to permit young children to testify in a non-threatening environment. The Court will allow the Commonwealth to present the testimony of the children through closed circuit television transmission from the circuit court library into the circuit courtroom before the jury. Based on the Court's experience with the competency hearing, the Court finds that the children are capable of testifying in the presence of the Defendant. The Court therefore shall allow the Defendant to be present in the library when each child testifies so that his rights under the confrontation clause may be respected. The Defendant may choose, at his option, to remain in the courtroom in the presence of the jury while the children testify.

The procedure used in this case was much more favorable to Appellant than that authorized by KRS 421.350(3) and approved in Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986). Since Appellant was permitted to remain in the same room with the witness during her testimony, there was no implication of the confrontation clauses of the Sixth Amendment of the United States Constitution or Section 11 of our Constitution. Appellant cites no authority for the proposition that a witness and the jury must be in the same room during the witness's testimony. Modern technology permits the procedure allowed in this case without impairing the jury's ability to observe the witness's demeanor during her testimony. The trial judge did not abuse his discretion in permitting this procedure and no violation of Appellant's constitutional rights resulted.

Appellant also claims it was error to permit J.V. to use anatomically detailed dolls while describing the acts perpetrated against her by Appellant. In Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), we held that a social worker could not describe to the jury the child victim's out-of-court manipulation

of anatomically detailed dolls, because the manipulation of the dolls was a nonverbal communication, thus hearsay. Here, the child victim manipulated the dolls as she was testifying. In that context, her use of the dolls was no different than the employment by a witness of any other appropriate visual aid. See Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612, 615-16 (1992).

III. TESTIMONY OF J.V.'S MOTHER

Appellant asserts it was error to permit J.V.'s mother to testify that when she told J.V. on November 4, 1994, that Appellant would bring her home from the day care center on the following day, J.V. responded, "Please don't make me ride with him." This statement is not hearsay, since it does not purport to prove the truth of the matter asserted. What it tends to prove is that J.V. was then in fear of Appellant. Thus, the statement was admissible as a nonhearsay utterance reflecting the state of mind of the declarant. L.K.M. v. Department for Human Resources, Ky.App., 621 S.W.2d 38 (1981); R. Lawson, The Kentucky Evidence Law Handbook § 8.05, pp. 364-65 (3rd ed., Michie, 1993).

Appellant also claims error with respect to a second statement of J.V.'s mother, which she made during the prosecutor's attempt to elicit proof that J.V. was referred to William House for the purpose of treatment and not merely for evaluation. The colloquy was as follows:

Q. Okay--let me back up here. I am not sure that I am phrasing the question correctly. Did you learn--did someone tell you that [J.V.] had been sexually abused?

[Objection.]

[Overruled.]

A. No, [J.V.] was the one that told me that.

Q. Okay--thank you.

A. It was her.

Q. And, as a result of allegations for things that you had heard, did, at some point, you obtain some type of counseling for [J.V.]?

A. Yes, I did.

Q. Okay--with whom?

A. With William House.

In analyzing whether an "out-of-court" statement is inadmissible hearsay, the "ultimate inquiry is ... whether the statement has a relevancy that exists without regard to the truth of the assertions contained in the statement." Lawson, supra, § 8.05, p. 368. In Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), we said with respect to information furnished to police officers that:

The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer's action.

Id. at 541; see also Ruppee v. Commonwealth, Ky., 821 S.W.2d 484, 485 (1991). Whether J.V. was referred to Mr. House for treatment or evaluation and whether the referral was at the behest of J.V.'s mother or the police were both contested issues in this case. Thus, J.V.'s mother's explanation of why she referred J.V. to Mr. House was...