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Basham v. Commonwealth

Supreme Court of Kentucky

December 18, 2014

AARON BASHAM, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

Released for Publication April 2, 2015.

ON APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE FREDERIC J. COWAN, JUDGE. NO. 10-CR-003354.

FOR APPELLANT: Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, Kentucky; Daniel T. Goyette, Louisville Metro Public Defender of Counsel, Office of the Louisville Metro Public Defender, Louisville, Kentucky.

FOR APPELLEE: Jack Conway, Attorney General, Thomas Allen Van De Rostyne, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.

OPINION OF THE COURT BY JUSTICE NOBLE. All sitting. Minton, C.J.; Abramson, Keller, Scott and Venters, JJ., concur. Cunningham, J., concurs by separate opinion.

OPINION

Page 416

NOBLE, JUSTICE.

The Appellant, Aaron Basham, was convicted of first-degree rape, first-degree sexual abuse, and being a first-degree persistent felony offender. He was sentenced to life without the possibility of probation or parole for 25 years. On appeal, he challenges his convictions on two grounds: (1) that the trial court should not have excluded evidence that the alleged victim

Page 417

had been previously exposed to pornographic material on the internet, and (2) that the trial court should not have granted the Commonwealth's motion to strike a juror for cause over defense objection. Finding that Basham has failed to establish grounds for relief, this Court affirms his convictions and sentence.

I. Background

Aaron Basham lived with a former co-worker and his family for several months in late 2007 and early 2008. The former co-worker's wife and three minor children--his step-daughter (then age 12), daughter (age 7), and infant son[1] --resided at the home. Basham was asked to babysit the children on several occasions when the former co-worker and his wife had to work overlapping shifts and when they played bingo on Friday and Saturday nights. In February 2007, upon learning that Basham was a convicted sex offender,[2] the former co-worker forced Basham to move out of his house and have no further contact with his family. The former co-worker and his wife also questioned their daughters at that time, and both denied that Basham had ever inappropriately touched them.

On October 28, 2009, the former co-worker received a call from the teacher of his then eight-year-old daughter, Sally.[3] The teacher reported that Sally had said the word " sex" to another student and that when the teacher asked her if she knew what the word means, Sally had burst into tears and responded that something bad had happened to her and that she knew who had done it. Sally was then taken to Clark Memorial Hospital by her step-mother, reporting that she had been sexually abused by a man that had lived with the family two years earlier. According to the hospital's intake form, Sally had stated that " when my parents would leave and [Basham] would babysit us, he would make me get down on the couch and start having it with him," and that " he would make me pull down my pants and put his thing in me." No physical examination was conducted at that time due to the remoteness of the allegation.

Rebecca League from the Child Advocacy Center conducted a forensic interview of Sally on November 16, 2009. According to League's notes, Sally was reticent to discuss the details of the abuse, but Sally did tell the interviewer that she had pulled down her own pants, that Basham had kissed her on her mouth and chest, that he had touched her on her chest and butt with his hands, and that she had gotten on top of him. She stated that Basham's penis had had " gray spots" on it that had wiped off on her, were still on her private, and ...


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