Tungate v. Com.
| Decision Date | 06 July 1995 |
| Docket Number | No. 95-SC-10-DG,95-SC-10-DG |
| Parties | Leander TUNGATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
F. Larkin Fore, Mulloy, Walz, Wetterer, Fore & Schwartz, Louisville, for appellant.
Chris Gorman, Atty. Gen., Lana Grandon, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
Leander Tungate was indicted by a Jefferson County Grand Jury and charged with thirteen counts of first-degree sexual abuse of little girls under twelve years of age during the period from November 1986 through December 1991. It was alleged that the incidents occurred while the children were in the daycare center operated by the appellant's wife at the Tungates' residence in Jeffersontown. The alleged sexual abuse involved the little girls sitting in the appellant's lap while he was sitting in a large chair, and consisted of his putting his hand under the clothing of the children and touching their vaginal areas. At the close of its case, the Commonwealth voluntarily dismissed seven of the counts, about which it had offered no proof. At the conclusion of all the evidence, the remaining six counts were submitted to the jury which, after deliberation, returned verdicts of not guilty as to three counts and of guilty as to the remaining three counts. Punishment was fixed at imprisonment for one year on each of the three convictions, with a recommendation of consecutive sentencing. The trial court denied probation and sentenced the appellant to a total of three years' confinement. Shock probation was also denied, after which the Court of Appeals affirmed the conviction and sentence. This Court granted discretionary review, and we now likewise affirm.
The appellant's first contention is that the Commonwealth failed to prove that the alleged sexual contact was done for the purpose of sexual gratification, a necessary element of the crime of first-degree sexual abuse. See KRS 510.010(7) and 510.110. Accordingly, it is argued that the appellant's motions for a directed verdict were erroneously denied. The appellant attempts to support his argument by pointing to the fact that all three of the little girls whom the appellant was convicted of sexually abusing testified that the physical contact or touching felt "bad." Further, it is said that when the appellant testified, he denied any sexual contact with the victims, let alone any touching for the purpose of his sexual gratification.
In Anastasi v. Commonwealth, Ky., 754 S.W.2d 860, 862 (1988), we said:
Sexual gratification is a single element of the crime of sexual abuse in the first degree ... Intent can be inferred from the actions of an accused and the surrounding circumstances. The jury has wide latitude in inferring intent from the evidence.
Also see Waters v. Kassulke, 916 F.2d 329 (6th Cir.1990); State v. Merrifield, 478 A.2d 1131 (Me.1984); People v. Duenaz, 148 Mich.App. 60, 384 N.W.2d 79 (1985).
Based on the evidence taken as a whole, accepted as true and viewed in a light most favorable to the Commonwealth, it was certainly not clearly unreasonable for the jury to find beyond a reasonable doubt that the Commonwealth met its burden of proving each element of each offense, including that the touching was done for the purpose of sexual gratification. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). The trial court did not err when it denied the appellant's motions for a directed verdict of acquittal on all three charges.
For his second ground for seeking reversal, the appellant cites the refusal of the trial court to admit into evidence the testimony of a psychiatrist that the appellant was unlikely to have engaged in the alleged acts of child sexual abuse based upon the doctor's "indicators for pedophilia." The defense offered to call as an expert witness in its behalf, Dr. Richard A. Gardner of New York City, a practicing and board certified psychiatrist and clinical professor of child psychiatry at the College of Physicians and Surgeons of Columbia University. Following an out-of-court hearing, the trial court ruled the proffered evidence inadmissible. The court then proceeded to actually hear all such proffered testimony by avowal on the record. Again the admission was denied. Dr. Gardner's proposed testimony was to the effect that in his practice he had isolated twenty-four "indicators for pedophilia," that he had examined the appellant, and that in his opinion based thereon, the appellant was unlikely to be inclined to engage in pedophilic acts. The doctor stated that pedophilia, a commonly used scientific term, is defined in the Diagnostic and Statistical Manual of the American Psychiatric Association. He indicated that while the definition "has some problems," he used the term as was common in the psychiatric practice to mean a sexual act between an adult and a child. He explained that there is no reliable profile of what a pedophile is. He nevertheless has himself determined certain factors which he believes are indicators of pedophilic tendencies. These factors are complex, sometimes contradictory, and can only be properly evaluated by a competent psychiatrist. Dr. Gardner finally testified that, based on his entire evaluation, it was unlikely that Leander Tungate was inclined to be disposed to pedophilic acts. He nevertheless admitted that whether a person may have these indications or not, no one can conclusively determine whether or not someone has committed a particular pedophilic act, based solely on psychiatric evaluation.
The trial court in ruling the proffered testimony inadmissible, stated that such testimony went to the ultimate issue of guilt or innocence in this case, and as such, invaded the province of the jury. Moreover, the court also ruled that the proffered testimony and conclusions lacked sufficient scientific basis for the opinions offered. The court supported its ruling by citing Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), wherein we stated Id. at 553:
An opinion as to whether the accused had the ability or propensity to commit such an act is improper because it is an opinion on the ultimate fact, that is, innocence or guilt. Consequently it invades the proper province of the jury. Such an opinion is not evidence of mental condition but is a factual conclusion of the witness on the ultimate issue before the jury which can be reached only by consideration of all the facts.
With regard to "profile" evidence similar to Dr. Gardner's "indicators," we said the following in Dyer v. Commonwealth, Ky., 816 S.W.2d 647, 653:
Recently, our Court has been confronted with a series of cases involving a similar problem, wherein...
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