Alderson v. Commonwealth

670 S.W.3d 884

Eric ALDERSON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0071-MR

Supreme Court of Kentucky.

June 15, 2023

COUNSEL FOR APPELLANT: Emily Holt Rhorer, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Thomas A. Van De Rostyne, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE THOMPSON

After a jury trial, Eric Alderson was convicted by the Ballard Circuit Court of two counts of first-degree rape and two counts of first-degree sexual abuse. He received a total sentence of thirty years. Alderson appeals his conviction as a matter of right, asserting trial errors and a sentencing error. We reverse his conviction and sentence and remand for a new trial because the trial court erred in permitting the Commonwealth to present victim impact testimony during the guilt phase of the trial and this error affected Alderson's substantial rights. We additionally address the other issues raised which could require further relief and to provide guidance to the extent these issues are likely to recur on retrial.

I. FACTUAL BACKGROUND

Alderson, nineteen, lived at home with his mother, stepfather, younger sister (A.A.), and younger brother. A.A. was in high school and often had one of her friends come over to her house and spend the night. Alderson spent time "hanging out" in A.A.’s upstairs bedroom with A.A. and her guests. Alderson was alleged to have raped or sexually abused three of his younger sister's friends, A.R., R.D, and K.M. (the girls), at four separate sleepovers, after the girls had fallen asleep. At the time of each occurrence, only one of the girls was having a sleepover with A.A. and each of the girls was either fourteen or fifteen years old.

A. K.M.’s Testimony Regarding the Initial First-Degree Sexual Abuse Charge (Count III)

According to testimony by K.M., on October 5, 2020, she spent the night with A.A. and woke up feeling something cold down her shirt and found that Alderson had his hands down her pants and shirt. He was touching her breast, nipple and rubbing her vagina.

B. A.R.’s Testimony Regarding the First-Degree Rape Charge (Count I)

A.R. testified that on October 16, 2020, Alderson hung out with her and A.A. in A.A.’s bedroom and watched a movie with them. They fell asleep on the bed with Alderson still in the room. A.R. testified she woke up when she felt Alderson's hand in her pants; he was sitting beside her and had his finger inside her vagina. He stopped when she woke up.

A.R. testified she tied her sweatpants "really tight," went back to sleep and woke up again at 4 a.m. to find Alderson doing the same thing, having his finger inside her vagina. A.R. then moved around to get him to stop.

C. K.M.’s Testimony Regarding the Subsequent First-Degree Sexual Abuse Charge (Count IV)

K.M. testified to a second incident when she spent the night with A.A. again on December 28, 2020. K.M. explained that Alderson made her uncomfortable by sitting too close to her. Fearing that Alderson would sleep in A.A.’s room, K.M. put on her sweatshirt and sweatpants over her shirt and shorts, tied them tightly, and lay down on the floor of A.A.’s room covered by two blankets. K.M. testified she stayed awake as long as she could but awoke to feeling a crawling sensation in her vaginal area and saw Alderson sitting in front of her with his hand in her blankets, with one hand on her vagina and another hand holding the blanket up. He moved his hand away, told her she looked cold, and got her another blanket.

K.M. testified she fell back asleep, awoke again to the same feeling, and found that Alderson had his hands outside of her pants and was rubbing her vagina. She moved, he removed his hand and then put it back again but stopped after she sat up and pretended to have a phone call.

D. R.D.’s Testimony Regarding the First-Degree Rape Charge (Count II)

R.D. testified she spent the night with A.A. on January 1, 2021, and Alderson made her uncomfortable by trying to touch her leg and asking her to sit by him. Then when A.A. was showering and R.D. went downstairs, Alderson went downstairs too, put his hand on her leg again and then made a hand gesture that R.D. interpreted as meaning "suck his dick." When R.D. returned to A.A.’s room, Alderson kept trying to get her to try to sit by him and A.A. while they watched a show.

R.D. testified that after Alderson and A.A. fell asleep in A.A.’s room, R.D. went downstairs to the living room and sat on a couch, with A.A.’s little brother on the other couch. She fell asleep there and woke up to Alderson pulling her pants down. R.D. testified she started crying, saying "No. Stop." Alderson stuck his fingers in her vagina and ignored her requests to stop and R.D. finally pushed herself away. According to R.D., Alderson then stared at her, got up and then told her she knew where to find him if she changed her mind.

R.D. told A.A. later that day what had happened.

E. Report of the Incidents

On February 23, 2021, R.D. reported what Alderson had done to her high school counselor. The next day, K.M. and A.R. made a report to the same counselor. The girls were all interviewed by a detective and then at Lotus, a child advocacy center, by a child forensic interviewer. The Lotus interviews were recorded. K.M. and R.D. received ongoing counseling at Lotus after they made their reports.

F. Alderson's Testimony

Alderson testified in his own defense and stated he was close to his sister A.A. and hung out with A.A. and her friends.

Alderson did not recall any incident involving A.R., but acknowledged she was frequently at his house. He denied all of her allegations.

Alderson recalled an incident with K.M. but did not recall when it occurred. He stated he had misplaced his e-cigarette after waking up in A.A.’s bed, felt around K.M.’s blankets for it and that woke her up. He denied patting anything but the top of the blankets or touching K.M. in an intimate matter but recalled bringing her a blanket because he noticed she was cold.

Alderson testified he recalled hanging out with A.A. and R.D. and watching a movie, R.D. was acting odd, he followed her downstairs and asked what was wrong, motioning at her to try to get her attention but she would not look at him. He went to bed in his room.

The next morning, he woke up and went to the kitchen to get something to eat. The kitchen is across from the living room. He saw R.D. asleep on the ottoman, his brother asleep on a couch, and tapped R.D. on the shoulder to ask her if everything was okay and she "freaked out," swatted at him, did not say anything and acted "frightened beyond belief." Alderson told her that he was here for her if she needed anything and told her he was not into raping a kid.

Alderson stated he went back to bed but before going to work he went to A.A.’s room and R.D. was there. A.A. pushed Alderson out of the room, told him that she hated him and that she never wanted to see him again.

Alderson testified that after further reflection on that night, he realized he was acting in a playful and flirty manner and must have made R.D. feel uncomfortable but he denied touching her inappropriately.

II. PROCEDURAL BACKGROUND

On April 27, 2021, Alderson was indicted on four counts for his conduct on four separate occasions regarding the girls. Two counts were for first-degree rape of a minor "incapable of consent/physically helpless" based on Alderson's digital penetration two of the girls’ vaginas¹ : A.R. (count one) and R.D. (count two). Two counts were for first-degree sexual abuse of K.M. (counts three and four) for the two incidents of touching her genitals.

Prior to trial, Alderson's motion for separate trials was denied on the basis that the circumstances involving each girl were similar enough that this evidence would also be admissible if the trials were separated.

During the Commonwealth's case in chief, the Commonwealth Attorney asked each of the girls how their rape or assault had affected their lives. Alderson objected to this question regarding K.M., but his objection was overruled. He did not make any objection to this question being asked of the other girls.

After the Commonwealth completed its case in chief, Alderson moved for a directed verdict on the rape charge regarding R.D. as she was not physically helpless as stated in the indictment because she was awake before penetration. The trial court granted this motion and then, over Alderson's objection, allowed the Commonwealth to amend this count to rape by forcible penetration.

Alderson wished to impeach two of the girls’ trial testimony regarding inconsistencies with their prior statements but declined to do so after the trial court signaled its willingness to let the girls’ whole recorded interviews and written statements come in if he were to do so. Rather than risk this outcome, Alderson put on this testimony by avowal.

The jury convicted Alderson as charged on the two counts of first-degree rape and two counts of first-degree sexual abuse. The jury recommended Alderson serve ten years on each of the rape convictions and five years on each of the sexual abuse convictions, with these sentences be served consecutively for a total of thirty years of incarceration. On January 21, 2022, the trial court sentenced Alderson in accordance with the jury's recommendation, waiving court costs but imposing jail fees.

III. ANALYSIS

A. Admission of testimony about how the alleged sexual assaults affected the girls in the merits phase constituted impermissible victim impact testimony which deprived Alderson of a fair trial.—Partially preserved

During the direct examination of K.M. (who was the first of the girls to testify), the Commonwealth Attorney asked K.M. "to tell the jury how all of this happening has affected you, how it's changed your life." Alderson objected to this question on relevancy grounds and during the subsequent bench conference explained it sounded like the Commonwealth Attorney was soliciting...