Opinion of the Court by
Jason Dant appeals as a matter of right from a June 15, 2006 Judgment of the Hancock Circuit Court convicting him of wanton murder. The victim in this case was Addryana Johnson, the seven-month-old daughter of Dant’s live-in girlfriend, April Johnson. On the morning of January 23, 2005, Dant awoke and heard Addryana struggling to breathe. Dant claimed that he tried to restore Addryana’s breathing by shaking her a little to help her breathe. Addryana was eventually taken by an ambulance to the hospital, where she was pronounced dead. An autopsy revealed that Addryana had died from a subdural hematoma, or what is commonly known as “shaken baby syndrome.” Dant was arrested on January 24, 2005, and indicted by a Hancock County Grand Jury on February 7, 2005 for the murder of Addryana
On appeal, Dant contends that the trial court erred by (1) allowing inadmissible hearsay statements and evidence of his prior bad acts to be introduced through the testimonies of LeDeanna Taylor, Cindy Goatee, Hannah Warner Hall, and Kim Stearsman; (2) permitting the Commonwealth to admit gruesome, autopsy photographs of the baby’s skull and brain during Dr. Schluckebier’s testimony; and (3) allowing the Commonwealth to tell the jury in its closing argument that they were not here to try April Johnson, the victim’s mother, and that her issues would be dealt with in a later proceeding. After reviewing the record in this case and the applicable law, we disagree with Dant’s alleged claims of error and, thus, we affirm the Judgment of the Hancock Circuit Court.
RELEVANT FACTS
When the events surrounding this case transpired, Jason Dant and April Johnson were living together with their two-year-old daughter, Katilyn Dant, 1 and April’s seven-month-old daughter by another relationship, Addryana Johnson, in Lewisport, Kentucky. Although Dant was not Addr-yana’s biological father (April and Dant split up for a period after Katilyn was born, at which point April began seeing Trey Clarke, who was Addryana’s father), Dant, April, and Katilyn had been living together since before Addryana was born and continued to live together after her birth. According to Dant’s statement, on the morning of January 23, 2005, he woke up and heard Addryana gasping for breath. Addryana had been sick several days previously with a high temperature. According to the statement he gave to the police, Dant took Addryana into the living room and gave her some cough medicine with a decongestant to help her breathing. He also ran a bath for her. When it appeared that Addryana had stopped breathing, Dant stated that he shook her a little to help her breathe. When this did not help, Dant woke up April and informed her of the situation. April immediately went to find Troy Roberts, an emergency medical technician who lived four trailers down from theirs, while Dant began performing CPR on Addryana. Troy Roberts testified at trial that upon arriving at Dant’s trailer, he encountered Dant attempting to give Addryana CPR. When he examined Addryana, however, she had no pulse and had mucus around her nose. Roberts then radioed for an ambulance. The ambulance and an Advanced Life Support Unit arrived on the scene and took Addryana and her family to the hospital.
Kim Stearsman, who was one of the nurses working in the emergency room on the night Addryana died, testified at trial that when April and Dant first arrived at the hospital, April was relatively calm and told Dant that he should not blame himself for what happened. However, after Addr-yana was pronounced dead and Stearsman returned to the family in order to ask them if they had had sufficient time to view the body, Stearsman stated that April was yelling at Dant, saying that she would still have her baby if it were not for him and that this was all his fault. Stearsman testified that she could not tell if Dant disputed April’s statement, but that Dant eventually left the room crying.
The Deputy Coroner, Michael Postle-waite, testified that upon examining Addryana’s body externally, he found no significant signs of physical trauma. After listing her cause of death as an “in
In addition to Dr. Schluckebier’s testimony detailing the specific head trauma Addryana suffered from being shaken with great force, the Commonwealth introduced evidence of Dant’s prior abuse of Addrya-na through the testimony of his and April’s coworkers, LeDeanna Taylor and Cindy Goatee. Both women testified that approximately three days before Addryana’s death, while April and Dant were arguing with each other at work, they heard April tell Dant that he was the one who “puts Addryana in the corner and smacks her on the head when she does not mind him.” Dant did not deny this accusation, but rather, replied that he was tired of working forty hours a week to support “a kid” that did not belong to him. Furthermore, through the testimony of Dant’s former girlfriend, Hannah Hall, with whom Dant lived in August 2003, the jury learned that when Dant’s own daughter, Katilyn, was approximately' six months old, he would hold her in a corner and push her face against the wall when she cried. Hall testified that Dant also would wrap Kati-lyn in a blanket so tight that she would be unable to move, smack her bottom when she cried, blow in her face, and shake her to make her stop crying. Hall also stated that Dant physically abused her sixteen-month-old son, Isaac, revealing that on one occasion when Isaac was crying, Dant hit Isaac in the face so many times he left fingerprints and bruising.
Following the Commonwealth’s case-in-chief, Dant called as witnesses his and April’s former roommates, all of whom testified that although they never saw Dant abuse Addryana, Dant became angrier and more apt to “fly off the handle” the longer they lived with him. Dant’s former boss and his oldest brother also testified on his behalf, both stating that they never saw Dant abuse Katilyn or Addryana and that they had recently become concerned about Dant’s mental health because of his odd, apathetic behavior. Lastly, Dant called Dr. Candace Walker, who is a psychiatrist at the Kentucky Correctional Psychiatric Center. After discussing Dant’s mental health, which had become stable since his arrest with the aid of several medications, Dr. Walker testified regarding what Dant had told her about the night of Addryana’s
On June 1, 2006, after hearing all the evidence presented, the jury found Dant guilty of wanton murder and recommended that he receive a sentence of life imprisonment. On June 20, 2006, the Hancock Circuit Court entered its judgment convicting Dant of wanton murder and sentencing him to life in prison in accord with the jury’s recommendation. This appeal followed.
ANALYSIS
1. The Trial Court Violated Neither the Hearsay Rules Nor the Provisions of KRE 404(b) When It Admitted the Testimony of LeDeanna Taylor, Cindy Goatee, and Hannah Hall. Furthermore, Dant’s Objection to the Admission of Kim Stearsman’s Testimony Is Not Preserved For Review.
Prior to trial, Dant objected to the testimonies of LeDeanna Taylor and Cindy Goatee, both co-workers of his and April Johnson’s, on the ground that they violated the provisions in KRE 404(b) and constituted inadmissible hearsay. Part of Taylor’s and Goatee’s testimony involved an argument they overheard at work between Dant and April approximately three days before Addryana’s death, during which April told Dant that he was the one who puts Addryana into a corner and smacks her on the head when she does not mind him. During his pre-trial motion to have this testimony excluded, Dant argued that this evidence of a prior bad act violated KRE 404(b) and that April’s statement, as told to the jury by Taylor and Goatee, was inadmissible hearsay. Although the trial judge reserved his ruling on the hearsay issue until the witnesses testified at trial, he ruled that Taylor and Goatee could testify about Dant’s prior bad act because it was likely evidence of a common scheme. At trial, Dant objected again to the admission of April’s statement during Taylor’s testimony, arguing that it was prejudicial and hearsay. In response, the Commonwealth argued that since Dant did not deny April’s accusation, but rather replied that he was tired of working forty hours a week to support a kid who was not his, he adopted April’s statement and it was admissible as an adoptive admission. The trial court agreed with the Commonwealth and ruled that April’s statement could come in through Taylor’s testimony because it constituted an adoptive admission per KRE 801A(b)(2).
A. The Trial Court Did Not Abuse Its Discretion By Admitting April Johnson’s Statement as an Adoptive Admission.
According to KRE 801 A(b)(2),
A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is: (2)[a] statement of which the party has manifested an adoption or belief in its truth.
Similarly, as this Court held in
Marshall v. Commonwealth,
When incriminating statements are made in the presence of an accused under circumstances that would normally call for his denial of the statements, and it is clear that the accused understood the statements, yet did not contradict them, the statements are admissible as tacit, or adoptive admissions.
In Dant’s case, April’s accusations were made in the presence of Dant and his two coworkers, Taylor and Goatee. Although Dant did not remain silent after April accused him of abusing her seven-month-old daughter, he also did not deny or contradict that he engaged in this conduct. Rather, both Taylor and Goatee testified that in response to April’s allegation, Dant replied that he was tired of working forty hours a week to support a child that was not his. If Dant had remained silent after April’s accusation, it would have been clearer that he was acquiescing in the truth of her statement. However, Dant’s reply nonetheless indicated that he understood April’s accusation and chose not to deny it even though it was made “under circumstances that would normally call for his denial.” Id. Thus, because Dant could have corrected April’s statement but chose not to contradict her accusation, we find that the trial court did not abuse its discretion when it admitted April’s statement as an adoptive admission.
B. Dant’s Prior Bad Act, As Revealed Through April’s Statement, Was Relevant Under KRE 404(b) to Demonstrate His Pattern of Abusing Addryana, and The Statement’s Probative Value Was Not Outweighed By Its Prejudicial Effect.
In its pre-trial ruling, the trial court allowed evidence of Dant previously putting Addryana in the corner and smacking her on the head when she did not mind him to be admitted because it showed Dant’s common plan or scheme. KRE 404(b)(1) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity,intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
A trial court has the discretion to admit evidence of prior bad acts as long as that evidence is “relevant, probative, and the potential for prejudice does not outweigh the probative value of such evidence.”
Parker v. Commonwealth,
The Commonwealth asserts that the evidence of Dant’s prior abuse of Addryana is relevant to proving Dant’s pattern of conduct or his modus operandi. However, this Court has held that for a prior bad act to be admitted to show a pattern of conduct, “the facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same
mens rea
”.
English,
What makes this inquiry particularly difficult in Dant’s case is that the specific facts surrounding the abuse that caused Addryana’s death are relatively unclear. No specific facts were alleged regarding when or exactly how Addryana was abused on the night of her death. It is certain, however, that Addryana died from head trauma. Her autopsy revealed that this head trauma resulted from being struck in the head and from having her head violently shaken back and forth. Although there is no evidence that Dant put Addryana in a comer for not minding him on the night of her death, the evidence of Dant previously smacking the infant on the head could constitute a pattern of conduct since her death was partly caused by being struck on the head. Similarly, the prior act of abuse and what the Commonwealth alleged occurred at the time of Addryana’s death were similar enough to show also that Dant had the same mental state during both acts of abuse: on both occasions, Dant used violence in response to the infant Addryana’s behavior. Therefore, because the evidence of Dant previously smacking Addryana on the head when she did not mind him could support a “reasonable probability” that Dant also struck Addryana on the head and/or used violence to stop her from crying on the night of her death, we find that the trial court did not abuse its discretion when it determined that this evidence was relevant under KRE 404(b).
See also Parker,
This conclusion is further supported by this Court’s holding in
Noel v. Commonwealth,
B. Because Dant Consistently Responded to a Crying Child with Physical Abuse, Hannah Hall’s Testimony Was Relevant to Show His Intention and Pattern of Abusive Conduct.
Prior to Hannah Hall’s testimony at trial, Dant objected to her statements about his prior bad acts with regard to his daughter, Katilyn, and her son, Isaac, arguing that the incidents occurred two years before Addryana’s death and that the prejudicial effect outweighed the evidence’s probative value. In overruling Dant’s objection, the trial court found that Hall’s testimony regarding Dant’s prior conduct was relevant to show an absence of mistake or accident, and its probative value was not outweighed by its prejudicial effect. Thus, Hall testified at trial that when she and Dant were in a relationship and living together in 2003, she saw Dant holding his daughter, Katilyn, who was six-' months-old at the time, up against a corner and pushing her face against the wall when she cried. Hall also testified that when Katilyn would cry, Dant would smack her bottom, blow in her face, and shake her. Dant would also wrap Katilyn in a blanket so that she would be unable to move. Furthermore, Hall stated that on one occasion, when her sixteen-month-old son, Isaac, was crying, Dant hit Isaac in the face so many times he left fingerprints and bruising.
Dant argues on appeal that since he admitted that he shook Addryana on the morning of her death, absence of mistake is not an issue. In addition, Dant contends that Hall’s allegations of prior abuse are not similar enough to the abuse that caused Addryana’s death to be relevant. Regarding Hall’s statement that Dant used to shake Katilyn when she cried, we find that this prior bad act fits squarely into the pattern of conduct or modus operandi exception to the admissibility of KRE 404(b) evidence. In
English, supra,
this Court allowed evidence of prior acts of sexual misconduct against other victims to be admitted because “the evidence was offered to show a modus operandi for the purpose of proving motive, intent, knowledge, and the absence of mistake or accident.”
English,
The other prior bad acts revealed through Hall’s testimony included that on previous occasions when Katilyn, who was six-months old at the time, would cry, Dant would push Katilyn up against a corner, smack her bottom, blow in her face, or wrap her very tightly in a blanket. Similarly, when sixteen-month old Isaac would cry he would hit Isaac. Although Dant is correct that these acts of abuse are not precisely identical to the physical act of shaking a baby, the fact remains that
C. Dant Did Not Object to Kim Stearsman’s Testimony at Trial, and Thus, His Argument That She Discussed Hearsay Statements Is Unpreserved.
At trial, Kim Stearsman, an emergency room nurse, testified regarding her observations of April Johnson and Dant while they were at the hospital. Specifically, Stearsman stated that after April and Dant found out Addryana had died, April yelled at Dant and stated that she would still have her baby if it were not for him. Dant recognizes in his brief that he did not object to Kim Stearsman’s testimony at trial. This alleged error is not preserved for review and we will not consider it on appeal. RCr 9.22;
Edmonds v. Commonwealth,
D. The Trial Court Properly Determined That Dant Received Adequate Notice Under KRE 404(c) of the Commonwealth’s Intent to Introduce Evidence of His Prior Bad Acts.
In a pre-trial motion in limine, Dant challenged both the timeliness of the Commonwealth’s notice required by KRE 404(c) and the admissibility of the KRE 404(b) prior bad act evidence that the Commonwealth intended to introduce at trial. The trial court disagreed and allowed the Commonwealth to present its KRE 404(b) evidence during trial. Regarding the notice issue, Dant argues on appeal that since he received notice from the Commonwealth on the Friday before a holiday weekend, with the trial beginning on Tuesday, he did not receive “reasonable notice” as required by KRE 404(c). We disagree.
According to KRE 404(c), if the Commonwealth intends to introduce prior, bad act evidence pursuant to KRE 404(b), “it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence.” This Court has held that “[t]he intent of KRE 404(c) is to provide the accused with an opportunity to challenge the admissibility of this evidence through a motion
in limine
and to deal with the
II. The Trial Court Properly Admitted the Autopsy Photographs Because They Were Directly Related to Dr. Schluckebier’s Testimony Regarding Addryana’s Internal Brain Injuries.
During Dant’s trial, Dr. Schlucke-bier gave a detailed account of the results of Addryana’s autopsy, specifically describing her many internal injuries and using color photographs to better explain her findings. Dr. Schluckebier testified that upon conducting an initial autopsy of Addryana, she found five different hemorrhages or instances of internal bleeding present in and around Addryana’s brain. First, Addryana had a hemorrhage on the top of her skull, which was consistent with something hitting the top of her head or her head hitting something. Second, she had a hemorrhage under the thick, subdural membrane that covers the brain. Third, she had a subarachnoid hemorrhage, which is an injury to the thin membrane surrounding the brain. Fourth, Addryana had infarct areas of her brain, which are caused by blood clots that leave behind dead tissue in the brain. Lastly, after removing Addryana’s brain, Dr. Schlucke-bier found more bleeding at the base of her skull, which she discovered was caused by a hemorrhage in her retina and optic nerve. Other than the first hemorrhage mentioned, which was caused by something hitting Addryana’s head, Dr. Schluckebier stated that the remaining four hemorrhages were all caused by the fast acceleration and deceleration of the brain, or her head being thrown back and forth with great force.
After performing Addryana’s autopsy, Dr. Schluckebier conducted a follow-up examination the next day in order to determine if the infant had any latent injuries that would not be discoverable through an initial autopsy. During this follow-up exam, Dr. Schluckebier found more infarct areas in Addryana’s brain and concluded that some of her injuries were weeks old. She also found that the cells in her lungs contained iron, which is caused by bleeding in the lungs. Dr. Schluckebier stated that the presence of this iron in Addryana’s lungs is an indication of someone physically suffocating her but not to the point of death. She also testified that this injury could be consistent with someone trying to stop a baby from crying, although she noted that her finding in that regard was not conclusive. Dr. Schluckebier concluded that Addryana’s recent and prior injuries all contributed to her death and ultimately described the cause of her death as trauma to the head. She also stated that Addryana’s injuries would produce symp
To demonstrate Addryana’s head injuries, the Commonwealth introduced six colored photographs taken during Dr. Schluckebier’s autopsy. The photographs were of different portions of Addryana’s brain and skull, and they depicted the hemorrhage on the top of her skull, the subdural hematoma, the subarachnoid hemorrhage, the infarct areas of her brain, the blood at the base of her skull, and the hemorrhage in her eye. In some of the pictures, the baby’s scalp was peeled back to reveal the injured areas of the brain, while in others, the brain was completely removed from the skull. Dr. Schluckebier used a laser pointer to identify where in the photographs Addryana’s hemorrhages were located. Dant objected to the admission of these photographs, arguing that other means could have been employed to illustrate Dr. Schluckebier’s findings and that the prejudice resulting from the photographs outweighed their probative value. The trial court overruled Dant’s objection and held that the photos were admissible because they were tied directly to Dr. Schluckebier’s testimony regarding Addr-yana’s internal injuries.
Dant argues on appeal that since there was no material issue regarding what caused Addryana’s death and since the photos had little or no probative value, their admission should constitute reversible error. We disagree. “The general rule is that a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome and the crime is heinous.”
Funk v. Commonwealth,
[t]he rule prohibiting the exhibition of inflammatory evidence to a jury does not preclude the revelation of the true facts surrounding the commission of a crime when these facts are relevant and necessary. Were the rule otherwise, the state would be precluded from proving the commission of a crime that is by nature heinous and repulsive.
Although Addryana’s death, her injuries, and the photographs depicting her head trauma were indeed gruesome, the Commonwealth was nonetheless entitled to put forth relevant, demonstrative proof regarding the injuries that caused her death. Since Addryana’s injuries resulted in fatal internal bleeding, the photographs depicting her different types of hemorrhages were directly relevant to her cause of death and thus, properly admitted at trial.
This result is consistent with this Court’s previous holdings regarding whether autopsy photographs of child-victims were properly admitted at trial. This Court held in
Ratliff v. Commonwealth,
III. The Commonwealth’s Reference to April Johnson in Its Closing Argument Did Not Constitute Palpable Error.
In Dant’s closing argument, he pointed out to the jury that April Johnson had not testified during trial. In response, the prosecutor stated in his closing argument, “all I can say is we’re not here to try [April Johnson]; her issues will be dealt with at a later time at a later proceeding. We’re here to address what [Dant] did.” Although Dant did not object to this statement at trial, he now contends that its admission constitutes palpable error under RCr 10.26 and entitles him to a new trial. Dant cites to two cases in furtherance of this argument, both of which prohibit the Commonwealth from referring to a co-in-dictee’s subsequent conviction as evidence of the guilt of the defendant now standing trial.
Pando v. Commonwealth,
CONCLUSION
Under KRE 404(b), Dant’s prior acts of abusing Addryana, Katilyn and Isaac when each child cried were relevant to show his pattern of conduct and so were properly admitted at trial. In addition, the trial court did not err by admitting the victim’s autopsy photographs because they were necessary to demonstrate the internal brain injuries that caused Addryana’s death. Lastly, the prosecutor’s reference to April Johnson during his closing argument did not result in manifest injustice and cannot constitute palpable error. Therefore, we affirm the June 15, 2006 Judgment of the Hancock Circuit Court convicting Dant of wanton murder.
Notes
. This child’s name is spelled both as "Kait-lyn” and "Katilyn” in the briefs of the parties. There being no clear spelling of her name in the record, we are using the spelling of “Kati-lyn,” as reflected in the appellant’s brief.
. In his interview with Dr. Walker, Dant told her that he thought his trailer was bugged and that if people heard Addryana crying, they would take her away from him. Dr. Walker testified that based on her observations, Dant was suffering from a paranoid psychosis at the time of Addryana's death, but that his psychosis was eventually resolved with treatment. Although defense counsel never admitted at trial that Dant had anything to do with Addryana’s death, Dant nonetheless presented evidence of an insanity defense and asked the jury to consider his mental health if they wanted to hold him accountable for Addryana’s death. Although the jury was given the option of finding Dant not guilty by reason of insanity or guilty but mentally ill, they rejected both options and found Dant guilty of wanton murder.