Kenneth John Grabowski v. State
04-15-00699-CR
| Tex. App. | Nov 2, 2016Background
- Defendant Kenneth Grabowski, the complainant’s stepfather, was convicted by a jury of aggravated sexual assault of a disabled individual and prohibited sexual conduct and sentenced to two concurrent 60-year terms.
- The complainant was diagnosed with moderate to severe intellectual disability (IQ ~40), required substantial supervision, and functioned at a kindergarten instructional level despite being 19.
- Medical testing in January 2014 showed the complainant was ~16 weeks pregnant and positive for chlamydia; the complainant gave birth July 2014. DNA testing showed Grabowski could not be excluded as the child’s father.
- School staff observed the complainant’s pregnancy; the complainant told a school counselor that “Daddy did this” and made statements referring to sexual activity.
- At trial, school personnel and a psychologist testified about the complainant’s inability to understand sexual consequences or to consent; the complainant herself gave equivocal testimony that Grabowski had not forced her and that she wanted him to return home.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Grabowski) | Held |
|---|---|---|---|
| Sufficiency of evidence to prove lack of effective consent for aggravated sexual assault of a disabled person | Evidence of the complainant’s severe intellectual disability, expert/school testimony on her inability to appraise or resist sexual acts, plus DNA linking Grabowski to the child, proves lack of consent. | Disability alone cannot be the exclusive basis to negate capacity; Lawrence protects consensual adult sexual liberty; evidence showed complainant consented. | Affirmed. Court rejects Lawrence argument, finds evidence (disability testimony + DNA inference) sufficient for a rational jury to find no effective consent. |
| Admissibility of outcry statement under art. 38.072 (Danner’s testimony recounting the complainant saying “Daddy did this”) | The counselor was the first adult outcry recipient and the complainant’s statements identified the offense to an extent admissible under the statute. | The statements were too vague and lacked required specificity about the alleged offense; thus inadmissible outcry hearsay. | Trial court erred in admitting Danner’s outcry testimony, but error was harmless given other strong evidence (DNA, medical) and thus conviction stands. |
| Qualification to opine on complainant’s ability to consent (expert testimony) | School counselor/teacher testimony about functioning and capacity was within their specialized knowledge and assisted the jury. | Danner was not qualified to render legal conclusions about capacity to consent or sexual ability of disabled persons. | Issue waived (no adequate trial objection on this ground); no reversal. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for reviewing sufficiency of the evidence)
- Lawrence v. Texas, 539 U.S. 558 (distinguishes consensual adult sexual liberty; not applicable to persons unable to consent)
- Rider v. State, 735 S.W.2d 291 (purpose of effective-consent provision to protect those deemed incapable)
- Hooper v. State, 214 S.W.3d 9 (circumstantial evidence may sustain conviction)
- Winfrey v. State, 393 S.W.3d 763 (cumulative circumstantial evidence standard)
- Garcia v. State, 792 S.W.2d 88 (standard of review for outcry admissibility)
- Lopez v. State, 343 S.W.3d 137 (outcry must describe the offense in a discernible manner)
- Davis v. State, 313 S.W.3d 317 (expert must have some knowledge beyond average person but gap need not be large)