Stump v. Commonwealth

JESSE ALLEN STUMP APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2017-SC-000557-MR

Supreme Court of Kentucky

DECEMBER 13, 2018

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM SHELBY CIRCUIT COURT

HONORABLE CHARLES R. HICKMAN, JUDGE

NO. 12-CR-00129

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Shelby Circuit Court jury convicted Appellant, Jesse Allen Stump, of first-degree rape. In accordance with the jury's recommendation, Stump was sentenced to twenty years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred in its handling of evidence of prior bad acts and denying his proposed jury instruction regarding missing evidence.

I. BACKGROUND

Stump was indicted on July 11, 2012, of first-degree rape and incest¹ for the rape of his step-granddaughter, Sally,² on April 14, 2012. After a two-day trial, beginning July 31, 2017, Stump was convicted of one count of first-degree rape and sentenced to twenty years' imprisonment.

Sally indicated that she first reported the charged rape to her best friend. The record reflects that she then reported the rape to a teacher at her school on April 23, 2012. The teacher referred her to a school guidance counselor, who called the Commonwealth's abuse hotline. After speaking to the counselor, Sally underwent a forensic interview on May 16. This interview was conducted by Kimberly Cook at the Child Advocacy Center in Louisville, Kentucky.

During this interview, Cook asked Sally if anything like the rape she reported had happened before with Stump. Sally answered "[w]ith him? No. Maybe. I think when I was little it happened before." Cook proceeded questioning Sally regarding possible rapes, to which Sally answered that she was smaller and couldn't remember what occurred and nothing else had happened on any other day that she remembered. Following this interview, Sally underwent a medical examination on June 8 at the Child Advocacy Center.

Regarding the charged rape, Sally testified that Stump told her to go into his bedroom, asked her to take off her shirt, pants, and underwear, and instructed her to lie down on the bed. Sally said she complied with Stump's orders, and he touched on her sides and then put his penis inside her. Sally further testified that she asked Stump to stop because it hurt. She said that afterwards, he told her not to tell anyone about what he had done to her and she went to be with her sister.

On October 27, 2016, (nine months prior to trial) the Commonwealth filed a motion to introduce evidence pursuant to KRE 404(b). The motion indicated that Stump had sexually assaulted Sally on numerous occasions before April 2012. This motion was for an order to allow the Commonwealth to introduce evidence—expected to be in the form of Sally's testimony—of other acts of sexual abuse Stump perpetrated upon Sally other than the isolated incident set forth in the indictment. As attached in an appendix to Stump's brief to this Court, it appears the Commonwealth also emailed a copy of a notice and motion pursuant to KRE 404(b) to Stump's counsel on July 21, 2017. It was only after the Commonwealth sent this email to Stump's counsel providing a second notice (presumably as a courtesy, as the required notice had been filed with the trial court nine months before) that Stump's counsel filed a motion in limine to exclude the KRE 404(b) prior bad acts evidence due to lack of adequate notice pursuant to KRE 404(c). The trial court denied Stump's motion and indicated it would admit evidence pertaining to the alleged prior rape.

During trial, Sally testified as to Stump's prior bad acts—specifically an alleged rape that she had not reported to authorities. She testified that Stump had previously raped her when she was twelve years old. She stated that Stump had told her to go to his room, pull down her pants, and lie down on his bed. She stated that he turned around and used a penis pump, and then laid on her and held himself up. She testified that he put his penis "in" her, and, once he had finished, that he went to the bathroom and she went to be with her sister in a different room. The Commonwealth then asked Sally if Stump put his penis "on" her vagina, and Sally answered yes. In spite of the Commonwealth's inartful question given the fact that Sally had clearly stated Stump had put his penis "in" her, Sally went on to make it clear that Stump had done more than merely put his penis "on" her vagina. Sally indicated in her testimony that she bled from the encounter and that it hurt more than the second rape. Furthermore, Sally testified that she told Stump it hurt, but he did not stop. She stated Stump also told her not to tell anyone what he had done to her on this occasion.

Sally testified that she spent one weekend a month at Stump's residence prior to the first rape. However after, the first rape occurred, she said she did not go back to Stump's residence for a while. When she started visiting Stump's residence again, the charged rape occurred.

II. ANALYSIS

A. Prior Bad Acts

1. Motion in Limine

Stump alleges that the trial court erred when it overruled his motion in limine concerning the admission of KRE 404(b) prior bad acts evidence. On appeal, "[w]e will not disturb a trial court's decision to admit evidence absent an abuse of discretion." Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Applying this test to the case at bar, we will not overturn the trial court's decision, as the trial court did not abuse its discretion in denying's Stump's motion in limine and admitting the evidence of the prior alleged rape.

Stump filed his motion to exclude evidence of uncharged crimes due to the Commonwealth's alleged failure to provide proper notice. The uncharged crime in question is the alleged rape that Sally testified to. According to Sally, on this occasion, Stump raped her when she was twelve using a penis pump before inserting his penis into her vagina.

At the in-chambers hearing on this motion conducted prior to trial, the Commonwealth argued that Stump had been put on notice, as allegations of prior sexual assault and an approximate timeline for these assaults were produced in discovery—and Stump was aware that the Commonwealth had medical records referencing a prescription for the penis pump. Also, a notice and motion to introduce evidence pursuant to KRE 404(b) filed on October 27, 2016, reflected the Commonwealth's intent to introduce evidence of prior sexual assaults Stump perpetrated against Sally.

Stump also argues that he was unfairly prejudiced by Sally's testimony in which she referred to the alleged prior rape. He contends that the Commonwealth withheld the information of the alleged rape and the medical records referencing a penis pump prescription in bad faith. However, Sally's allegation that Stump had sexually assaulted her on numerous occasions was included in discovery. The Commonwealth also claims that Stump's counsel had visited its office and viewed the medical records referencing the penis pump. During the nine months between the Commonwealth's notice and Stump's motion in limine, he had ample opportunity to request additional information regarding the allegations of uncharged sexual assault.

Stump maintains that he was not given adequate notice pursuant to KRE 404(c) to prepare his defense. KRE 404(c) reads:

In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.

Here, the KRE 404(c) requirement that the Commonwealth give "reasonable pretrial notice" of intention to introduce other criminal evidence was satisfied as the fact that Sally alleged sexual assaults happening on numerous occasions was included in discovery.

"The 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 reliability and prejudice problems at trial." Bowling v. Commonwealth, 942 S.W.2d 293, 300 (Ky. 1997); Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25 (3rd Ed. 1993). This requires us to examine the facts surrounding the admission of the evidence in question.

On August 12, 2012—nearly five years before trial—the Commonwealth filed discovery materials containing a Kentucky State Police supplemental report. This report details that Sally claimed that Stump had raped her in April 2012 and that it had happened numerous times before. A crime supplement document of the KSP records provides an approximate timeline concerning...