King v. Commonwealth

OPINION OF THE COURT BY

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 *525not 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 “touchfed] 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 thai 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

*526(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), “ ‘[deviate 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(l)(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 á 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 Ms 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 Ander-kin’s testimony relating to the discredited theory of child sexual abuse accommodation syndrome [CSAAS]2 and by Ander-*527kin’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 Ander-kin’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 should be prosecuted.

Since at trial Appellant objected to neither of these- claims of improper evidence, he now argues that individually or in combination they rise to the level of palpable error. RCr 10.26 provides: ■

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

*528 1. Anderkin’s testimony of the victim’s delayed reporting of abuse

The Commonwealth concedes that the “delayed reporting” aspect of Ander-kin’s testimony was improper. We held in Miller v. Commonwealth, 77 S.W.3d 566 (Ky.2002), that testimony nearly identical to Anderkin’s was improper.4 In Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky.1992) we reversed a conviction based upon testimony that “ ‘delayed disclosure’ is common in- these types of cases.” We noted that “[b]oth sides recognize that we have reversed a number of cases because of trial error in permitting the use of testimony regarding the so-called ‘child abuse accommodation syndrome’ to bolster the prosecution’s case.” Id, at 613 (citations omitted).

The phenomenon of “delayed reporting” is but one of several (usually stated as five) symptoms claimed to be characteristic of the so-called “child sexual, abuse accommodation syndrome” (CSAAS), a theoretical construct promoted by some social and psychological professionals as a useful tool for diagnosing young victims of sexual abuse and for verifying claims of sexual abuse. That Detective Anderkin did not use the term “child abuse accommodation syndrome” and did not relate all of its symptoms to Thomas is inconsequential; omission of the term “syndrome” does not transform the objectionable nature of the testimony into reliable scientific evidence. Blount v. Commonwealth, 392 S.W.3d 393, 395 (Ky.2013).

Notably,, in the foregoing cases the error was properly preserved for ordinary appellate review, and so a showing of manifest injustice was not required. ’ Here, the'error was not preserved by a contemporaneous objection and so our review is for palpable error pursuant to RCr 10.26. “Authorities discussing palpable error consider it to be composed of two elements: obviousness and seriousness.” Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky.2005). Given the substantial body of case law against the use of “delayed reporting” to validate a claim of sexual abuse,5 we have to conclude that the inadmissibility of Anderkin’s statement was obvious. However, with respect to the second element, we are satisfied from our review of the record that, while serious and prejudicial, the evidence was' not so damaging to Appellant’s case that it resulted in manifest injustice. This aspect of Anderkin’s testimony was not palpable error.

At this point, it is worth taking note of the history of CSAAS evidence in Kentucky. Justice Abramson’s separate opinion echoes the lament of Justice Graves’s dissenting opinion nearly twenty years ago in Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky.1996): “Kentucky remains as one of the few jurisdictions that still rejects all testimony regarding the phenomenon clinically identified and demonstrated as the Child Sexual Abuse Accommodation Syndrome which provides jurors a psychological explanation for certain behavior in small children following sexual abuse.” Id. at 696. Whether that is a good thing or a bad thing is yet to be shown. Kentucky is also the only state to eliminate commercial bail bonding and the first state to institute video recording in all of its courtrooms. Being exceptional is per se neither good nor bad. What is clear is that the validity of the CSAAS theory is not readily self-*529evident. The theory is not self-proving and an appellate court cannot spontaneously decide that, from now on, CSAAS evidence should be admissible. Like khy scientific or technical theory, the validity of CSAAS as a diagnostic tool for verifying claims of sexual abuse is a matter based upon facts.. Facts are determined from evidence presented to a trial court,- ordinarily at a pre-trial- hearing by adverse parties. As far as we can tell, no trial court in Kentucky has ever been asked to hold such a hearing with respect to CSAAS.

Having reviewed every reported decision of a Kentucky court on the subject of CSAAS admissibility, we are unable to find any conscientious effort by any party to establish the validity of the CSAAS theory under either the “Frye test”6 (whether the evidence had gained general acceptance in the relevant scientific community) which was prevalent prior to 1993; or under the less restrictive “Daubert test”7 which we adopted in 1995. See Mitchell v. Commonwealth, 908 S.W.2d 100,102 (Ky.1995) (“[Pjursuant to KRE 702 and Daubert, expert scientific testimony must be proffered to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards' set forth in Daubert.”). The standards include: “(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79 (Ky.2000).

The first appellate decision in Kentucky to address the subject of CSAAS evidence is Bussey v. Commonwealth, 697 S.W.2d 139 (Ky.1985). In Bussey, we noted “the record does not réveal any attempt mádé by the prosecution to establish the credibility' of the child sexual abuse accommodation syndrome as a concept generally accepted in the medical community.” Id. at 141. The following year, we noted in Lantrip v. Commonwealth, “There was no evidence that the so-called ‘sexual abuse accommodation syndrome’ has attained a scientific acceptance or credibility among clinical psychologists or psychiatrists.” 713 S.W.2d 816, 817 (Ky.1986).

In the next case, Hester v. Commonwealth, 734 S.W.2d 457, 458 (Ky.1987), we held that the need .to prove the scientific validity of the CSAAS theory could not be evaded, simply by avoiding the use of the term “child sexual abuse accommodation syndrome.” The Commonwealth’s failure to offer adequate evidence to prove the validity of the theory was again noted in Mitchell v. Commonwealth, 777 S.W.2d 930 (Ky.1989):

[fy social worker] testified that this sexual abuse accommodation syndrome was generally accepted by “clinicians” without specifying what clinicians she referred to, but there was no medical testimony .of any nature whatsoever that this syndrome has become. a generally accepted medical concept. , . .

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There was no testimony that all children who are sexually abused exhibit these symptoms, nor was there testimony that children who have not been sexually abused do not' sometimes exhibit some of *530the elements of the syndrome. There was no testimony that sexual abuse by other persons than the accused could not have produced the same symptoms in the victims.

Id. at 932. See also Brown v. Commonwealth, 812 S.W.2d 502, 504 (Ky.1991)8 (“This Court held in Bussey ... that the trial court erred in allowing evidence of the Syndrome into evidence because it was not established as a ‘generally accepted medical concept.’ In the cases following Bussey, this court has consistently held that the admission of evidence of the Syndrome or symptoms thereof is reversible error.”)

In Dyer v. Commonwealth, 816 S.W.2d 647, 653 (Ky.1991),9 we noted again that “[w]e reversed all of these cases [Bussey, Lantrip, Hester, and Mitchell ] because the evidence was insufficient to admit the evidence under the ‘Frye’ test: There was no evidence that the so-called ‘sexual abuse accommodation syndrome’ has attained a scientific acceptance or credibility among clinical psychologists or psychiatrists.’ ” Id. (quoting Lantrip, 713 S.W.2d at 817) (emphasis added).

A review of all of the post -Daubert decisions relating to CSAAS reveals the same thing: many times the Commonwealth has attempted to prove its case using CSAAS evidence at trial, but not once has the Commonwealth attempted to prove at a Daubert hearing the scientific reliability and validity of the CSAAS theory. Not once. In Bussey, the very first case in which this issue arose, we highlighted the need to properly establish the validity of the theory. In the thirty years since Bus-sey, our ruling on the issue has not changed because the evidentiary record has not changed: “the record [still] does not reveal any attempt made by the prosecution to establish the credibility of the child sexual abuse accommodation syndrome.” Bussey at 141.

The validity of the theory was not self-evident in 1985 and it is not self-evident today. However, the gravity of the issue is self-evident. Given the serious personal and social consequences at stake, it would seem likely that over the past three decades the theory would have been exposed to thorough and rigorous research to enable its proponents to demonstrate the validity of the theory. To be clear: we have never ruled the theory to be inadmissible because it is demonstrably wrong; rather, we have ruled it inadmissible because no one has offered proof of its validity. That ruling is not likely to change unless proponents of the theory provide proof of the relevant factors weighing on the theory’s credibility.

2. Anderkin’s testimony that the “Task Force on Child Sexual and Physical Abuse” recommended that Appellant be prosecuted

Appellant also complains on appeal that his trial was tainted by Detective Anderkin’s testimony that prominent local officials serving on the child sex abuse task force recommended Appellant’s prosecution. Anderkin testified that after she was informed by social workers of Thomas’s claims, and after then speaking to Thomas’s parents:

I presented the matter to the members of the Laurel County MultiDisciplinary Task Force on Child Sexual and Physical Abuse ... this Task Force is mandated by Kentucky law10 *531and it’s composed of members from the Commonwealth Attorney’s office, the County Attorney’s office, victim’s advocates, social services, school guidance counselors, police officers ... and we meet once a month and we discuss, our cases ... we look at each case on its individual basis, and based upon the decision made by the Task Force it is recommended' whether, you know, you go forward with the prosecution or to the giand jury, or not. '

The prosecutor then asked Anderkin, “In this case, obviously, ah indictment was returned?” And she testified: “Yes, [indict-mentj was recommended by the Task Force.”

In purpose and effect, Anderkin’s testimony states directly to the jury that a committee of esteemed local officials and respected sex abuse experts, after carefully screening the evidence “on an individual basis,” substantiated Thomas’s claims by recommending that Appellant be charged and prosecuted. The clear implication is that such an august body would not have recommended Appellant’s prosecution if they did not believe Thomas’s testimony. Thus, by testifying that the Task Force approved the charges, the Commonwealth was permitted to vouch for Thomas’s credibility as having been verified by a panel of respected experts.

It is well established that an. opinion vouching for the truthfulness of another witness is improper. Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997) (citing Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky.1993). For example, physicians may give an opinion concerning their patients’ medical diagnosis, but they may not give an opinion as to .the truthfulness of their patient. Hall, 862 S.W.2d at 323.

We liken this case to the improper bolstering that occurred in Hoff v. Commonwealth, 394 S.W.3d 368 (Ky.2011). In Hoff, a physician who treated the child victim of an alleged rape testified that he “had no reason not to believe” what the victim told him, reasoning that the child’s explanation of the events was “within [a] reasonable medical probability” of being an- actual account of what had happened. Id. at 375. Upon-review, we determined that while the physician’s testimony regarding his medical diagnosis was proper, his statement that he did not disbelieve the victim’s story was improper bolstering culminating in palpable error. Id.

By the same line of reasoning, the testimony that the Task Force had “recommended” prosecution is the same thing as saying that it was the opinion of the members of the Task' Force that Thomas’s charges were true. The information thus relayed to the jury impermissibly bolstered the victim’s testimony with the opinion of Task Force members. In a sense, the issue is even more egregious than in Hall and Hoff because in those cases, the improper bolstering was the opinion of a witness who was present for cross-examination; here,- the victim’s testimony was bolstered by the opinion of the Task Force members who were not even present.

We also note that whether the Task Force believed Thomas’s story was obviously irrelevant to the case. The most elementary rule of evidence is that irrelevant information is not admissible. KRE 402.11 The Task Force’s recommendation *532tended neither to prove nor disprove that the sexual assault actually occurred, but its prejudicial nature is clearly apparent. The only purpose served by the introduction of the Task Force testimony was to improperly influence the jury’s perception of Thomas’s account by suggesting that knowledgeable and reputable members had already accepted his testimony as truthful. Thus even assuming that there was some relevance to the evidence, that probative value of the testimony was substantially outweighed by its prejudicial effect. KRE 403.

3. The testimony challenged on appeal resulted in manifest injustice

The second element identified in Ernst for finding palpable error, the seriousness of the error, is present when “a failure to notice and correct' such an error would ‘seriously affect the fairness, integrity, and public reputation of the judicial proceeding.’ ” Id. at 758, quoting Robert G. Lawson, The Kentuoky Evidence Law Handbook, § 1.10[8][b] (4th ed. Lexis-Nexis 2003) and 1 McLaughlin, Wein-stein’s Federal Evidence, § 103.42[3] (2d ed.2003)). The “seriousness” aspect of a palpable error determinátion is captured by the requirement of RCr 10.26, which allows for relief from unpreserved error only when it results in “manifest injustice.” THe proponent of palpable error must show the “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). “To discover manifest injustice, a reviewing court must plumb the depths of the proceeding ... to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable;” Id. at 4. In other words, when reviewing'for manifest injustice, the court must discern whether there is a substantial possibility that, but for the error, the verdict would have been different or whether the error resulted in a fundamentally unfair trial. Otherwise, the unpre-served error will be held non-prejudicial. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.2003).

Upon review, we conclude that the prejudicial impact of the Task Force testimony resulted in manifest injustice. In Hoff, 394 S.W.3d 368 (Ky.2011), we determined that a single expert witness’s improper opinion that the victim was telling the truth compelled a reversal under our manifest injustice standard. Here, a case in which the verdict was totally, dependent upon the credibility of the accuser, the jury was erroneously informed that the esteemed local professionals on the Task Force placed their stamp of approval on Thomas’s testimony by recommending that Appellant be indicted.

The scales- were tilted even further against Appellant by the improper introduction of the delayed-reporting evidence. The gravity of these- obvious errors is such that we ate persuaded that there exists a substantial possibility that the result of the trial would have been different, but for their introduction.

These errors, compounded in a case based almost entirely upon the veracity of a single witness, resulted in a judgment that is jurisprudentially intolerable. As such, we are constrained to reverse Appellant’s convictions for first-degree sodomy and first-degree sexual abuse and remand the proceeding for a new trial.

III. CONCLUSION

‘ For the aforementioned reasons, we reverse and remand this matter to the Laurel Circuit Court for a new trial.