King v. Commonwealth

472 S.W.3d 523

William R. King, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000556–MR

Supreme Court of Kentucky.

RENDERED: OCTOBER 29, 2015

COUNSEL FOR APPELLANT: Michael Romano Mazzoli, Cox & Mazzoli, PLLC

COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, William R. King, appeals from a judgment of the Laurel Circuit Court convicting him of first-degree sodomy and first-degree sexual abuse. For these convictions, Appellant was sentenced to a total of twenty years' imprisonment. Appellant now appeals as a matter of right alleging that: 1) testimony of one of the Commonwealth's witnesses improperly bolstered the alleged victim's credibility resulting in palpable error and manifest injustice; and 2) the trial court erred in denying his motion for a directed verdict on the sodomy charge.

For the reasons that follow, we agree with the Commonwealth that the trial court correctly ruled that Appellant was not entitled to a directed verdict on the sodomy charge. However, we conclude that palpable error occurred when the Commonwealth's investigating officer testified that a local task force on child sexual abuse, comprised of local officials and prominent citizens, recommended Appellant's indictment, resulting in manifest injustice under RCr 10.26. Consequently, we reverse the judgment and remand the case for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Eleven-year old Thomas¹ and his family attended the church where Appellant, William R. King, then aged twenty-six years, served as a youth minister. In early 2012, Thomas participated in a sleepover with other children at Appellant's house. A few days later, Thomas told his mother that during the sleepover Appellant had subjected him to sexual acts. This information was reported to the appropriate authorities, resulting in Appellant being charged with first-degree sodomy and first-degree sexual abuse. At trial, Thomas testified that Appellant "touch[ed] my butt ... with his tongue," the allegation which served as the basis for the sexual abuse charge. Thomas also testified that later the same evening he was awakened because "[Appellant] had his mouth on my [penis]," the allegation which served as the basis for the sodomy charge. Appellant was convicted at trial, based in large part upon Thomas's testimony.

II. ANALYSIS

A. Appellant's Motion for Directed Verdict

Appellant first contends that the trial court erred by denying his motion for a directed verdict on the sodomy charge. After the Commonwealth presented all of its evidence, Appellant's counsel moved for a directed verdict on the sodomy charge. In support of his motion, Appellant argued that the evidence that Appellant's mouth came in contact with Thomas's anus did not satisfy the elements of sodomy. The trial court then clarified that the sodomy count was predicated upon the allegation of Appellant's oral contact with Thomas's penis rather than the act of oral-anal contact. Appellant offered no other grounds in support of his motion. The trial court denied the motion for a directed verdict, holding that if believed by the jury, Thomas's allegation that Appellant made penile-oral contact with him satisfied the elements of first-degree sodomy.

The standard for reviewing a motion for directed verdict is well established:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, the reviewing court may only direct a verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id. ; see also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).

KRS 510.070 provides that:

(1) A person is guilty of sodomy in the first degree when:

(a) He engages in deviate sexual intercourse with another person by forcible compulsion; or(b) He engages in deviate sexual intercourse with another person who is incapable of consent because he:

1. Is physically helpless; or

2. Is less than twelve (12) years old.

As set forth in KRS 510.010(1), " ‘[d]eviate sexual intercourse’ means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another[.]" Thomas's trial testimony established all the necessary elements: there was evidence of an act of sexual gratification involving Appellant's mouth and Thomas's sex organ (penis). As such, the Commonwealth presented evidence that Appellant engaged in deviate sexual intercourse with Thomas. There was also evidence that Thomas was less than twelve years old at the time of the incident. The Commonwealth's evidence therefore was sufficient to establish that Appellant violated KRS 510.070(1)(b)(2).

Appellant further asserts that in this case, where Thomas's credibility is the central issue, inconsistencies and improbable aspects of his testimony were so great as to destroy its credibility, rendering it inadequate to sustain the verdict. We disagree. The testimony of a single witness is enough to support a conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky.2005) (citing La Vigne v. Commonwealth, 353 S.W.2d 376, 378–79 (Ky.1962) ). Our courts have long held that a jury is free to believe the testimony of one witness over the testimony of others. See Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky.App.1977). In ruling on Appellant's motion, the trial court was required to construe conflicting evidence in the light most favorable to the Commonwealth. Benham, 816 S.W.2d at 187.

Specifically, for example, Appellant argues that Thomas testified that he was lying on his stomach when Appellant put his mouth on Thomas's penis, something that Appellant contends is a physical impossibility. Whatever the flaws or inconsistencies that could be drawn from Thomas's testimony, we do not find it so fantastic as to render the testimony unworthy of belief. Thomas's testimony had only the kinds of routine inconsistencies and flaws common to child witnesses, all of which go to the weight to be accorded his testimony. The jury was capable of fairly weighing any conflicting or inconsistent aspects of the testimony, and rendering its verdict accordingly. Matters of a witness's credibility and of the weight to be given to a witness's testimony are solely within the province of the jury. Appellate courts may not substitute their own judgment of the facts for that of the jury. Brewer v. Commonwealth, 206 S.W.3d 313, 319 (Ky.2006) (citing Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.1994) ). "Determining the proper weight to assign to conflicting evidence is a matter for the trier of fact and not an appellate court." Washington v. Commonwealth, 231 S.W.3d 762, 765 (Ky.App.2007) (overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.2010) ) (citing Bierman v. Klapheke, 967 S.W.2d 16, 19 (Ky.1998) ).

We therefore conclude that the trial court did not err in denying Appellant's motion for a directed verdict.

B. The Introduction of Improper Testimony from Detective Anderkin Was Palpable Error.

Appellant contends that palpable error occurred when Thomas's credibility was improperly bolstered by Detective Anderkin's testimony relating to the discredited theory of child sexual abuse accommodation syndrome [CSAAS]² and by Anderkin's testimony about the role of the Laurel County Task Force on Child Sexual and Physical Abuse in the pre-indictment process. Because this portion of Anderkin's testimony was clearly improper and resulted in manifest injustice, we agree with Appellant and find that reversible palpable error occurred.

Detective Anderkin was the Commonwealth's chief investigator in this case. She testified that Thomas's five-day delay in reporting the incident to his mother was not unusual because in her experience with more than 1,500 cases, it was "very rare" for children to immediately report sexual abuse. She added, "They seldom [report sex abuse immediately]; sometimes it is years after the event." Anderkin cited to no scientific studies or other data to confirm her claim that delayed reporting is indicative of a credible claim of sexual abuse.³ As the Commonwealth readily concedes, Appellant never claimed that Thomas's delayed report to his mother was indicative of a false report. Therefore, it cannot be claimed that Anderkin's statement was admissible to refute an attack on Thomas's credibility based on the delay in his report.

Anderkin also testified about the procedure used in Laurel County for assessing whether to bring charges against a suspect in a child sexual abuse case, and she noted that this procedure was used in making the decision to prosecute Appellant. As she explained, accusations of sex abuse upon children are reviewed by the Laurel County Task Force on Child Sexual and Physical Abuse (the Task Force), a committee comprised of local law enforcement officers, the Commonwealth's Attorney, the County Attorney, social workers, and school counselors, all of whom are experienced in the area of child sexual abuse. The Task Force reviews the evidence and if it determines that the case is meritorious, it may recommend that the prosecutor proceed with indictment and prosecution. Anderkin's testimony thereby implies to the jury that, in addition to the ordinary grand jury review, a prestigious body of experienced law enforcement and child welfare experts reviewed the evidence against Appellant and decided that he...