Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hammond v. Commonwealth

Court of Appeals of Kentucky

April 12, 2019

DALE THOMAS HAMMOND APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 15-CR-002596

          BRIEFS FOR APPELLANT: Cassandra F. Kennedy Assistant Appellate Defender Louisville Metro Public Defender Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky

          BEFORE: DIXON, NICKELL AND K. THOMPSON, JUDGES.

          OPINION REVERSING AND REMANDING

          K THOMPSON, JUDGE

          Dale Thomas Hammond appeals from the judgment and sentence of the Jefferson Circuit Court following a jury trial. He argues the trial court abused its discretion by excluding his expert witness and admitting a prejudicial photograph. We agree the trial court abused its discretion by excluding Hammond's expert's testimony about sexual role playing without conducting a proper Daubert hearing and admitting the photograph of Hammond's genitals.

         In September 2015, Hammond was indicted for unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities.

         Hammond's jury trial began on March 21, 2017. During the trial, Investigator Matt Hedden testified Hammond responded to an advertisement Investigator Hedden placed on Louisville Craigslist personals section from a young woman named "Jenna Bruce" who was new to the area and seeking companionship. Investigator Hedden, who posed as Jenna, testified he exchanged texts and emails with Hammond. Although Jenna informed Hammond that she lived at home with her mother, she was fifteen and did not want to get pregnant given her age, Hammond sent Jenna very sexually explicit messages discussing the sexual acts he wished to perform on her, sent her a photograph of his erect penis and attempted to meet with her. A greatly enlarged version of the photograph Hammond sent Jenna was admitted into evidence[1] despite Hammond's attempts to exclude it through a previous motion in limine and contemporaneous objection.

         Hammond testified that he did not believe Jenna was fifteen and instead believed he was chatting with an adult who was role playing. Hammond attempted to introduce testimony of an expert witness to explain sexual role playing and fantasies to support his own testimony. The trial court excluded this testimony.

         The jury found Hammond guilty of unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities and recommended a sentence of one year of incarceration. On June 1, 2017, in a judgment of conviction and sentence, Hammond was sentenced in accordance with this recommendation.

         Hammond filed a motion for a new trial or judgment notwithstanding the verdict on several grounds. The trial court denied this motion.

         Hammond argues the trial court abused its discretion by excluding his expert's testimony, which prevented Hammond from adequately presenting his defense that he did not believe he was communicating with a fifteen-year old girl but was engaging in role play with an adult pretending to be such a girl. The Commonwealth argues the circuit court properly excluded this evidence as the expert's testimony did not assist the trier of fact because it is common knowledge to ordinary people that there is sexual role playing.

         The expert Hammond wished to call was Dr. James Beggan. During a Daubert hearing, Dr. Beggan testified he is a University of Louisville sociology professor with almost twenty-eight years of experience teaching psychology and sociology. His area of research is human sexuality and over the last ten to fifteen years, he has published ten to twelve research-based papers relating to human sexuality in peer-reviewed journals. He has taught the topic of human sexuality for about twelve years including teaching about sexual fantasies and role playing as supported by scientific research and studies. Dr. Beggan reviewed the messages between Hammond and Jenna and opined they appeared to be consistent with behavior he has seen between people who are role playing or fantasizing and, though it could be possible that this exchange was an honest exchange, it seemed implausible that they would communicate in this way without it being a form of sexual role play or fantasy.

         The Commonwealth objected to Dr. Beggan's expert testimony because his research was not focused on child sex predators, his testimony was used to bolster Hammond's testimony and because Dr. Beggan was informed of the defendant's defense before he reviewed the transcripts. Hammond countered that in voir dire the jury's lack of responses to his questions about sexual role playing and fantasies indicated they could benefit from Dr. Beggan's testimony in understanding that sexual role playing and fantasizing exists and is studied.

         The trial court excluded Dr. Beggan's testimony, explaining it was significant that Dr. Beggan had never testified as an expert before, he was told his conclusion before he began to work on the case, and his opinion would not assist the trier of fact.

         Hammond preserved Dr. Beggan's testimony through avowel. Dr. Beggan testified that sexual fetishes, fantasies and sexual role playing are confirmed behaviors people engage in that are studied in his field and reiterated his opinion that in reviewing the transcript of the messages between Hammond and Jenna ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.