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J.E. v. Commonwealth

Court of Appeals of Kentucky

April 28, 2017



          BRIEF FOR APPELLANT AND AT ORAL ARGUMENTS: Kathleen K. Schmidt Frankfort, Kentucky Renee Sara Vanderwallbake Frankfort, Kentucky

          BRIEF FOR APPELLEE AND AT ORAL ARGUMENTS: Andy Beshear Attorney General of Kentucky Christopher S. Nordloh Assistant Attorney General Covington, Kentucky



          LAMBERT, D., JUDGE

         This matter comes before this Court for discretionary review of a decision by the Kenton Circuit Court, sitting in appellate jurisdiction of a decision by the Kenton District Court. The Appellant, J.E., a minor, seeks review of the Circuit Court's affirmation of the District Court's adjudication of his guilt of the offense of Sodomy in the First Degree where the victim was under the age of twelve years.

         The Appellant (hereafter, J.E.), contends that the Kenton District Court committed several reversible errors. J.E. argues the trial court improperly found the eight-year-old victim competent to testify. He also contends that the District Court violated the Confrontation Clause of Sixth Amendment by placing screens between himself and victim during her testimony. He also asserts the District Court committed error in allowing the victim's grandmother to sit near her and hold her hand during testimony, though he failed to properly preserve this claim of error. J.E.'s final argument challenges the District Court's finding that the evidence was sufficient to show guilt. Having reviewed the record, we affirm the District and Circuit Courts' rulings as to the issues relating to the child victim's competency and the grandmother's alleged interference in the victim's testimony.

         However, we also conclude that the screening procedures implemented by the District Court violated the Confrontation Clause contained in the Sixth Amendment of the U.S. Constitution. We further conclude that the trial court's ruling regarding the sufficiency of the evidence, in light of our conclusion regarding the confrontation issue, cannot stand. Consequently, we must reverse as it relates to those two issues.


         The Cabinet for Health and Family Services ("CHFS"), removed the victim and her brother from their home, and placed them with their father on July 18, 2013. At the time, the victim was 6 years old, and the brother was 10 years old. The father's residence had two bedrooms, but housed six people, including the Appellant, age 14 at the time. The victim shared one of those bedrooms with her brother, J.E., [1] and another boy.

         During a visit by a CHFS social worker, the victim disclosed that J.E. had touched her in the genital area, and that her brother had caught J.E. in the act. The children were subsequently interviewed at the Children's Advocacy Center ("C.A.C."). The victim gave a statement that J.E. had "licked my kitty cat, " (which is the name by which she referred to her vagina) and her brother gave a statement indicating that he had gone into the bedroom and pulled the covers off the bed to find J.E. stroking the victim's genitals with his fingers and digitally penetrating her. J.E. gave a statement (and later offered similar testimony at the adjudication hearing) that the victim had asked him to perform these acts, but he refused her requests. J.E. also stated that he would have told his mother about the victim's behavior, but the mother was heavily under the influence of drugs and would not have acted on this information.

         CHFS subsequently removed the children from their father's home and placed them with other relatives.

         The juvenile complaint alleging J.E. had committed sodomy was sworn on December 12, 2013. The Kenton District Court conducted a competency hearing for the victim and the brother on August 20, 2014. The victim gave satisfactory responses to questions regarding the difference between telling the truth and lying, but refused to answer the District Court's questions about the incident giving rise to the charges. The court stated that there was a potential issue with the victim's ability to recall facts, but deferred ruling on her competency until the date of the adjudication hearing. The court also denied the defense's request to have a psychologist examine the victim and determine her competency. The District Court found the brother competent without issue.

         The District Court conducted a hearing on January 14, 2015, which related to confrontation issues. At the outset of this hearing, Commonwealth noted that the victim and her brother had not yet been evaluated by a psychologist, and consequently conceded that a compelling need for testimony by closed circuit television under KRS 421.350 could not be shown. The District Court then heard arguments from all parties, including the victim's guardian ad litem, regarding what procedures should be put in place under KRS 26A.140 to shield the child victim from the alleged perpetrator of the offense against her. The court noted that the victim was "extremely hesitant" to testify, and concluded that screens were necessary in order to allow the child to do so under KRS 26A.140.

         The final adjudication hearing took place on March 20, 2015. Noting that the victim had "expressed apprehension" at the idea of testifying while able to see J.E. and vice versa, the District Court, pursuant to KRS 26A.140, directed that shields be set up to obstruct the view of the defense table from the witness stand during her testimony. The District Court heard the defense arguments that the Confrontation Clause required the Commonwealth to show compelling need for obstructing the defendant's view of the witnesses, but, relying on its earlier conclusion, ultimately allowed the shields. The victim was the only witness so screened. The district court also allowed the victim's grandmother, who was her custodian and guardian, to sit beside the victim as she testified from counsel's table.

         Before the adjudication hearing commenced, the court again conducted a brief hearing to determine whether the victim possessed the competency to offer testimony. The court was satisfied with her responses to questions intended to reveal whether the victim understood the difference between telling the truth and lying. When asked about details from the alleged incident, the victim appeared hesitant to answer, but after encouragement from her grandmother, gave responses that satisfied the court that she was capable of recalling facts and relaying them to others. The district court thus found the victim competent.

         The Commonwealth's case consisted of the victim's testimony and that of her brother. The victim, who was by then 8 years old, testified that J.E. had licked her genitals under the covers of the bed they shared, as well as touched her with his fingers. She testified that her brother witnessed this behavior when he entered the room and pulled the covers off the bed. Defense counsel impeached this testimony by pointing out that the victim had denied any digital contact in her C.A.C. statement. The brother testified that he had seen J.E. licking the victim's genital region "where she pees, " as well as stroking her and digitally penetrating her. Defense counsel impeached this testimony using the brother's C.A.C. statement that failed to mention seeing any oral-genital contact.

         J.E.'s case consisted of the testimony of himself and the investigating officer from the Erlanger Police Department. J.E. testified that on the night in question, the victim had asked him to lick her vagina, and when he refused, she went into the bedroom on her own. J.E. then testified that the brother emerged from the bedroom and informed him "Well, I did it." J.E. further testified that he would have told his mother, but for her intoxicated and unconscious state. The investigating officer testified that J.E. had maintained his innocence and that J.E.'s hearing testimony was consistent with a statement he had previously given to law enforcement.

         After the close of evidence, the District Court noted that it found the testimony of the victim and her brother credible, and the testimony of J.E. lacked credibility. The District Court concluded that the evidence did not prove beyond a reasonable doubt that J.E. had engaged in deviant sexual contact by manual contact, but the evidence did prove beyond a reasonable doubt that the oral-genital contact had occurred, and such contact satisfied the elements of first-degree sodomy on a victim under the age of twelve.

         The court adjudged J.E. guilty of a Class A felony sexual offense and he was committed to the custody of the Department of Juvenile Justice. The Department of Juvenile Justice conducted a juvenile sexual offender assessment, concluding that J.E. presented a low risk of re-offense, and displayed no signs of sexual preoccupation or deviant sexual fantasies.

         J.E. filed a timely appeal to the Circuit Court, wherein he argued the same errors alleged before this Court. The Circuit Court affirmed the District Court. Specifically, the Circuit Court held that the District Court: did not abuse its discretion in finding the victim competent to testify, had made a finding of compelling need sufficient to justify the intrusion upon J.E's right to confrontation, did not err when allowing the grandmother to reassure the victim during her testimony, and that the District Court had correctly concluded the evidence was sufficient to support the adjudication of guilt. The Circuit Court held that although use of closed circuit television method to screen "is preferred, the limitation of the Appellant's right to confront by use of screen[s] in this matter was harmless given the totality of the circumstances."

         J.E. then moved this Court to exercise discretionary review, which this Court granted.

         II. ANALYSIS


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