Souder v. Commonwealth

SOUDER, Terry Appellant,

COMMONWEALTH of

Kentucky, Appellee.

Supreme Kentucky. Court of

Oct. 1986.

Rehearing Denied Dec.

The child was then to a moved second hospital, ostensibly for further treatment arm, apparently but primarily for potential examination child hospital At the second abuse. child overnight, kept physically was and exam- injuries ined for from sexual abuse. The morning taken next the child was from the hospital by second her who then her to took a third Cincin- nati she where was further examined for Florence, M. Zevely, appel- Wilbur for abuse, questioned by sexual and also lant. using “anatomically social correct worker Atty. Gen., David Armstrong, W. Robert dolls” in an effort to discover evidence as Hensley, Ackman, Jr., Atty. John L. Asst. had child what occurred. The had bruis- Gen., Frankfort, appellee. for tearing vaginal and both and penetration

anal The areas. vagina incomplеte, jury was and the THE OPINION OF COURT appellant acquitted rape charge, but Terry Souder has been convicted of four guilty found him sexual different criminal offenses with associated abuse. physical and sexual abuse of a small proved All injuries (1) child. These be first-degree sodomy are: minor, relatively and successfully were (2) sentence imprisonment; with of life emergency treated room treatment assault with sentence of twen- hospi- that the child received at various years ty imprisonment; (3) first-degree required subsequent tals. has None treat- criminal abuse with sentence years of ten ment, any and there is no indication of imprisonment; (4) first-degree sexual permanent physical injury. The existence with years abuse of five imprison- sentence psychological trauma can extent ment. The judgment orders that these developed by It is assumed. not terms be consecutively.1 served evidence. December, early In young incapa- The child was so to be trailer, mother moved into Souder’s to live giving testimony ble of the trial. at She him. brought along She her two any questions answer not about the year daughter, one-half old who was there- events. there was аfter the victim the abuse. others, discussed, indicating from as will be allegedly abuse Monday, occurred on De- that the child identified the as the cember while the child was left alone person subjected had her to the vari- appellant. the trailer with Upon her physical injuries ous were which observed return, the child’s mother found her upon Further, there treatment. was testi- obviously injured. clаimed from both the child’s child had fallen the commode prove mother her sufficient attempting while Af- lights. to turn these had while occurred the child hesitancy, ter some the child to a was taken appellant’s was in the care. nearby hospital emergency for treatment. had She to her mouth First we consider whether there bums, diagnosed multiple areas of sub- any evidence to sustаin bruising stantial body, having for conviction committed anal sod badly swollen omy arm. on the child. The small rectal tears 532.110(l)(c), aggre- consecutively 1. Under KRS which limits to the life term. Shannon v. Com- gate sentencing, monwealth, Ky., sentences terms of 562 S.W.2d consecutively, could be ordered not served but danger found on the victim have been suffi- this child was of death from cient to indicate that there had been some this injury, injury or from other inflict- penetrate anus, effort to the victim’s upon ed her. nothing there prove “deviate sexual Cooper intercourse” which is one of the essential (1978), argu- referred to at oral sodomy elements in the first ment, inapposite. Cooper rape was a set out in KRS 510.070. The definition of physician’s case there wherein was a testi- intercourse,” “deviate sexual found KRS that, although the victim was not 510.010(1), (in requires pertinent part) an danger physical the death from gratification involving “act of sexual ... her, upon inflicted because she was a “74- organs person the sex of one and the ... year-old woman with heart trouble and added.) (Emphasis anus of another.” The lung chronic disease” she was “at risk of prove medical evidеnce of record tends to being ‍​​‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌​​​‌​​​​‌​‌​​​​‌‌​‌‌‌​​​‌‌​‍death” from “scared to death.” Id. by that the rectal tears were not made a at 670. There was no similar evidence in organ, contrary by male’s sex on the support finding object some hard other than a sex case to a of “a sub- male organ. Therefore, The direct on this stantial risk death.” there point from the child’s moth- submitting was no occаsion for deter- er that when she the child in asked the jury. mination to a Cf. Luttrell Com- tail,” happened “what to “[s]he monwealth, Ky., 554 S.W.2d 75 Terry appellant] said hurt it with his [the The for assault in the first conviction finger.” The claims that this evi- Upon must be set aside. a new hearsay, dence was if inadmissible but even trial, same, if the evidence is the it is nothing it would proving admissible add sufficient to sustain a conviction for inten- sodomy. the offense of tionally causing physical injury to another charge Motion for Directed Verdict person by dangerous means of a instru- first-degree sodomy should have been ment, which is assault in the second de- sustained. 508.020(l)(b). gree. KRS Similarly, there is no evidence to There admitted at the trial was evidence prove an essential element of witnesses, different five assault, namely, рhysical injury.” “serious mother, the two different 500.080(15) KRS defines “Serious worker, physicians, and social which the a injury” “physical injury which creates a death, appellant challenges as inadmissible hear- substantial risk of or causes which prolonged disfigurement, pro say. serious and This consisted state- health, longed impairment prolonged or by ments made the child to her mother and impairment loss of of the function of (at grandmother different times and in re- bodily organ.” only argument made sponse questions) to as to how she was by support the Commonwealth to “serious her, injured injured and who had state- physical injury” is that because the child ments made to the social worker who was mouth, sustained burns in and the about investigating possibility the of sexual which, alone, standing admittedly were not prоsecution abuse with a view toward serious, that the child have been ex offender, and statements in the medical posed to smoke fumes which “create[d] records caused the as who substantial risk of death.” KRS 500.- physicians. were testified to 080(15), supra. grandmother The child’s 801(c) Rule of the Federal Rules of Evi- testified, objection, over that the child told working provides dence definition of “had hearsay, as follows: cigarette, cigarette burnt her with a or “ statement, ‘Hearsay’ is a other than lighter.” any way depreciating Without in act, testify- one made the declarant while the hideous nature of such an nothing prove ing hearing, remains that there was at the trial or offered in prove ‘spontaneous’ depends evidence to of the is upon truth mat- an evaluа- ters asserted.” tion particular circumstances un- made, der which it follow- such, As all of the statements significant: (i) circumstances most present case victim lapse of main time between the act and They declarations. were of- declaration, (ii) opportunity prove fered to what the said fabrication, (iii) likelihood of the induce- injured injured how she was and who her. fabrication, (iv) ment actual excite- Therefore, the sole with reference declarant, (v) place ment of each various these (vi) declaration, presence there of vi- qualifies whether such statement as evi- sible results act or occurrence to recognized exception dence under some (vii) relates, which the utterance the utteranсe was made in to a The exceptions rule in- (viii) question, and whether the declara- spontaneous clude and statements excited tion or against was interest self-serv- utterances, certain made for statements ing.” receiving treatment, the medical particular Whether not a state (including and business records medical qualifies “spontaneous” ment as must “de records) kеpt regular course busi- pend upon particular the circumstances in However, excep- ness. each of the various each case.” Corp. Consolidated Coach hearsay tions to the rules are defined and Adm’r, 814, 6, Ky. Earl’s 263 94 S.W.2d 8 conditions, circumscribed with limitations (1936). Thus, extent, to a certain qualifications and which are intended to the in circumstances each case are differ provide the testimony quali- same the ent, exactly point prece no case in as ty and reliability that if would exist Deciding dent. whether the circumstances presented by competent a particular in which a statement was made witness, oath, in and court and sub- qualify (sufficiently) “spontaneous” as to ject to Anything cross-examination. less evidence, argua admit the is sometimes an implicate the confrontation clause of point, ble when so the this is trial our Federal and State Constitutions. U.S. court’s to decision admit or exclude the Const, VI, Ky. Thus, amend. Const. § evidence is to entitled deference. do, it will not as Commonwealth con- tends, mind, to exceptions simply background create new be- With this in we consid- cause the evidence is arguably trustworthy er the objec- various statements to which reliable, perceived necessary or is tion to was made. justice. serve interests of Nor will it barely Since the was three suffice to obscure the hearsay essential trial, years old time at the refused characteristics of evidence under broad respond any questions application gestae,” term “res which evеnts, court, agreement the trial with the itself, misleading in is “a useless and shib- Commonwealth, ruled that the child Commonwealth, boleth....” Preston v. incompetent to in testify was as a witness 406 S.W.2d 400 decide, us asks .case. general rule as to when an out-of- question, aas threshold that because the statement should court be admitted under incompetent witness, child was spontaneous statement to the out-of-court statements to others Lawson, well rule is set out in regardless be the events should excluded Handbook, Kentucky Evidence Law would otherwise 8.60(B) (2d 1984). ed. states: Lawson However, exceptions to the rule. ‘spontaneous’ “A .is one ut- in deciding statement the issues involved the admissi bility tered under the stress of nervous excite- of a or excit statement ment and not after reflection or delibera- outlined ed utterance as Lawson his tion. or not Kentucky (quot- Whether statement Law Evidence Handbook supra), Next, ed competency do relate to the not we consider the statements declarant, incriminating appellant, of the or to the declarant’s avail However, child to ability testify. commencing her mother answered several days after question reliability the occurrence. The long ago Logsdon v. Com of these subject statements is monwealth, Ky. S.W. passage time, not because of the (1926) wherein we held admissible state initially but because the mother told a sto year ments from a three old victim of at ry support claims, tempted rape effect, to her mother to the stating that the child injured said she was “Mama, me,” look Bill what has done to falling off the commode. It well stating competent, “the stages the initial the child had though the child of such tender prompted up been appel to cover incapable testifying as to be herself.” factor, lant. This inconsistent statements also, Id. at 1067. See Preston v. Common as to the cause is not wealth, (1966) Ky., 406 S.W.2d 398 inadmissibility itself determinative of Commonwealth, Ky., Wilson v. incriminаting of the child’s (1973),recognizing sponta against appellant. as in bystanders neous statements made Hopper supra, testify are not available ‍​​‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌​​​‌​​​​‌​‌​​​​‌‌​‌‌‌​​​‌‌​‍to are admissible mother testified as to statements made under this commencing days at least two after the hand, On the other occurrence. The circumstances of these is incompetent declarant or otherwise un- simply statements are too remote and unre testify available to in itself is no basis for to qualify liable under the ex admitting hearsay evidence which does not ception hearsay to the rule. requirements recognized meet the of a ex- Next, testimony we consider the of ception hearsay to the rule. a social worker who interviewed the victim hospital at the third to whiсh the child was grandmother gave child’s testi clearly taken. The interview was mony hospital that the child told her at the investigating possibility of into the me,” “Terry “Terry hurt and that and, evidence, of child abuse if there was cigarette lighter.” burnt me with a On testifying recognized about it. There is no cross-examination exception hearsay to the rule for social changed cigarette, ciga this to “with a investiga workers or the results of their lighter.” testimony qual rette This cannot pointing tions. This includes the and dem ify exception hearsay as an to the onstrating performed by the in the The child’s statements were more presence worker, using of the social a so- alleged than hours after the incident doll, “anatomically called correct” because occurred, grand and in to the hearsay includes “nonverbal conduct persistent questioning mother’s of the child person, if it is him an intended asser happened Hop what had to her. 801(a)(2). tion.” Fed.R.Evid. Commonwealth, per Ky. v. (1949). Commonwealth, Although passage Recently, Bussey v. (1985), simply of time is one of the relevant consid 697 S.W.2d 139 we held that erations, factor, in this case the time cou of a social worker was inad- pled eliciting hearsay, rejecting with the method of missible Common- statements, disqualified argument necessity these statements “the wealth’s exception hearsay type hearsay as an rule. See evidence should cause Commonwealth, Ky., exception Cook 351 S.W.2d it to fall within the ‘residual’ (1961), recognized by where statements made about the Fed- rule an hour after the occurrence were held eral Rules of Evidence.” This so-called admissible, exception but statements six hours later “residual” to the Federal Rules 803(24) were held inadmissible. of Evidence is stated Fed.R.Evid. 804(b)(5). yet mally wrongdoer Our Court has to decide the name of the is not a “residual” to the hear- to treatment.2 essential is say necessary, proper, rule or constitu- Thus, impermissible because of thе tionally permissible under 11 of the Ken- § against appel use of ap- tucky Constitution. The intermediate lant, appellant’s remaining convictions pellate court has the proposition considered first-degree for criminal abuse and first-de case, Maynard one gree sexual abuse must also reversed. Ky.App., 558 S.W.2d 628 Without charges sodomy first-degree passing validity, Ap- on its the Cоurt of first-degree assault are reversed and dis- peals rejected applicability its to the facts appellant missed for lack of evidence. The in that case. We need not consider subject is to retrial lesser for a present case assault consistent with the evidence. The “residual” as set out in the Fed- charges criminal abuse eral Rules of Evidence circumscribed sexual abuse are reversed requirements which have not be- been met present case. cause inadmissible It would not utilized as evidence, subject and are circumstances. remanded to be- proceedings retried further consist- ‍​​‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌​​​‌​​​​‌​‌​​​​‌‌​‌‌‌​​​‌‌​‍Last, admissibility consider ent opinion. with this physicians par from two ticipated in the medical examination and STEPHENS, C.J., STEPHENSON, investigation of the аbused child which WHITE, JJ., VANCE and concur. place took at the third to which the portion child was taken. That of the testi LEIBSON, J., by separate opin- dissents these two witnesses that incrimi GANT, J., ion in joins. nated the was based on state WINTERSHEIMER, J., by sepa- dissents ments others contained in the medical opinion. rate Principally, records. were statements identifying wrongdoer LEIBSON, Justice, dissenting. based what the social workеr had been I Respectfully, dissent. by told grandmother child’s testimony given by grand- child when the brought child was in for mother statements made examination. Thus the statements are not incriminating per- as the only hearsay, hearsay. causing arguably son her are ad- Next, although recognize excep- an Therefore, decision missible. tion to the involving rule the ad- trial to admit them should court be sus- missibility (Buckler оf medical records tained. Commonwealth, Ky., 541 S.W.2d (1976)), premised made These statements were a number admissibility occurrence, following of information in such records hours and in “important diagnosis to an effective inquiry, both circumstances Lawson, supra, 8.45(B)(1). treatment.” against admissibility. However, mitigating § provided This does not include information there is evidence of record which it part investigation, of a criminal nor can inferred does was still usually it include identifying suffering information from her and in a state wrongdoer the name of the upset nor- of emotional at the time that her testify, qualified plain history If statements at issue otherwise it seems related to proper custodian, treating parent, as admissible as diagnosis for the doctor (which not), they and treatment were guardian or muse of of tender an infant the child or Watts, must also be Miller v. admissible.” grandmother would not be determinative. 515, (1969). S.W.2d history treating an adult "[I]f relate to his doctor, so competent as to make that doctor This, grandmother coupled jury, relying talked to her. assault. A on the evidence youth relationship presented, reasonably with child’s and the could have convicted of trust that existed between the child and the accused assault. presented photographs at trial reveal that inquiry press manner of was to the victim was bruised and beaten. She push large truth rather than the child to in- had a contusion on her forehead as appellant, criminate the are all circum- well a bruised swollen arm. Most bearing stances on whether this evidence noticeаble were the severe burns on her spontaneous lips was admissible and mouth. Such were suffi- satisfy requirement cient to of serious grandmother’s The circumstances of the physical injury contemplated by KRS 508.- inquiry sharp is in contrast those in- scarring 010. The inevitable related to ser- subsequent investigation by volved in the lips ious burns could render the child’s disfigured the social worker. would as a injury prolonged whiсh causes serious and Had the trial court ruled inadmissible the disfigurement 500.080(15). under KRS grandmother’s testimony about the state- incriminating ap- ments the child made My review of the record indicates that pellant, I affirm. tes- the conviction for first assault timony enough falls close to the relevant should be affirmed. permitting factors a hearsay exception in

these circumstances so that I would defer judgment

to the trial court’s that the state-

ments were admissible.

GANT, J., joins in this dissent.

WINTERSHEIMER, Justice, dissenting.

I respectfully dissent. admitting

There was no error in into

evidence the utterances of the half-year-old two and a victim. Preston v. SIMMONS, Jr., Appellant, Beoria A. (cert. Ky. 406 S.W.2d 398 den.) 386 U.S. 87 S.Ct. 17 L.Ed.2d lapse The time between COMMONWEALTH ‍​​‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌​​​‌​​​​‌​‌​​​​‌‌​‌‌‌​​​‌‌​‍crime and the child’s statements to her Kentucky, Appellee.

mother and did not reduce Supreme Kentucky. Court of their value because the child was still un der the stress of nervous excitement. Nov. child-victim had no real to fabricate motive and the trustworthiness of her statements

fit into the exclamation ex

emption rule. Buckler v.

Commonwealth, Ky. 541 S.W.2d

Considering the seriousness of the child’s judge the trial was within his denying

sound discretion motions for acquittal charge

directed verdicts of jury, relying ‍​​‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌​​​‌​​​​‌​‌​​​​‌‌​‌‌‌​​​‌‌​‍A assault. presented, reasonably

the evidence could

have convicted the accused of

Case Details

Case Name: Souder v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Oct 16, 1986

Citation: 719 S.W.2d 730

Court Abbreviation: Ky.