FROM KENTON CIRCUIT COURT HONORABLE GREGORY M. BARTLETT,
JUDGE ACTION NO. 15-XX-00008
FOR APPELLANT AND AT ORAL ARGUMENTS: Kathleen K. Schmidt
Frankfort, Kentucky Renee Sara Vanderwallbake Frankfort,
FOR APPELLEE AND AT ORAL ARGUMENTS: Andy Beshear Attorney
General of Kentucky Christopher S. Nordloh Assistant Attorney
General Covington, Kentucky
BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES.
LAMBERT, D., JUDGE
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
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.
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
FACTUAL AND PROCEDURAL HISTORY
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.,
 and another boy.
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.
subsequently removed the children from their father's
home and placed them with other relatives.
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.
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.
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
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.
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
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.
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.
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.
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
then moved this Court to exercise discretionary review, which
this Court granted.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING