ON REVIEW FROM COURT OF APPEALS. CASE NO. 2012-CA-000628-MR. CRITTENDEN CIRCUIT COURT NO. 10-CR-00044.
FOR APPELLANT: V. Gene Lewter, Department of Public Advocacy.
FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE SCOTT. Cunningham, Noble, and Venters, JJ., join. Abramson, J., dissents by separate opinion in which Minton, C.J., and Keller, J., join.
A Crittenden Circuit Court jury found Appellant, Ethan Hughes, guilty of second-degree rape, for which he was sentenced to ten years' imprisonment. The Court of Appeals affirmed the circuit court, and this Court granted Appellant's request for discretionary review. Appellant makes the following arguments on appeal: 1) a prejudicial photograph of the victim was improperly introduced at trial, 2) a jury instruction improperly stated that the burden of proof for a defense was on Appellant, 3) the trial court erred in not permitting Appellant to call a relevant witness, and 4) the trial court improperly conducted a pseudo-deposition of a defense witness without Appellant's knowledge or presence.
At the time of the sexual encounter which is the basis for this case, Appellant was nineteen years old, and the victim, Ashley, was twelve years old. Late one night, after she and her mother had gone to bed, Ashley got back up to get something to eat. While up, she walked over to Appellant, who was watching television alone on the couch, and sat down beside him. They watched a few minutes of a movie and then engaged in sexual intercourse. The pair also engaged in sexual intercourse two more times over the course of the weekend.
Ashley testified that she told Appellant she was sixteen years old at the time, and that she thought he believed her. Appellant testified he did in fact believe Ashley when she told him she was sixteen, that she acted and sounded older than her true age, and that he looked up her " MySpace" page, which listed her age as seventeen. He acknowledged however, that he might have been wearing " beer goggles" that weekend, impacting his judgment as to Ashley's real age.
Nine months after the pair's three-day tryst, Ashley gave birth to a child. Given Ashley's young age, the birth caught the attention of medical personnel at the hospital, who responded by alerting authorities. Police Officer Jerry Parker interviewed Appellant, who admitted to having sexual intercourse more than once with Ashley. Based on this information, Appellant was charged with second-degree rape. At trial, Appellant's defense was based on his belief that Ashley was sixteen years old at the time of the sexual encounters. At the conclusion of the trial, Appellant was convicted and sentenced as previously noted.
A. The Prejudicial Photograph
Appellant's first argument on appeal is that the trial court erred by permitting the Commonwealth to introduce a photograph at trial of Ashley lying in a hospital bed on the day after she had given birth. Specifically, Appellant argues that this photograph was irrelevant to the case, highly prejudicial, and lacked any probative
value. The Commonwealth disagrees and believes the photograph was both relevant and probative.
When the photograph was introduced at trial, Appellant objected on the grounds that it did not accurately reflect how Ashley looked nine months previously, during the three-day period she was around Appellant. Ashley testified that she normally wore makeup, and that she was wearing makeup when she met and engaged in sexual intercourse with Appellant. In the photograph, however, Ashley is not only wearing no makeup, but is also holding her newborn child while lying in a hospital bed. Nonetheless, the trial court overruled Appellant's objection and ...