GEORGE ARNOLD GABBARD V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BEPUBLISHED OPINION
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GEORGE ARNOLD GABBARD
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L . BOWLING, JR ., JUDGE
CASE NO. 02-CR-00058
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
A Bell Circuit Court jury found Appellant guilty of rape in the first degree, rape
in the second degree, rape in the third degree and incest. All of the charges involve
GLG, his daughter, and occurred from 1996 to 2000, when GLG was nine (9) through
fourteen (14) years old . The trial court sentenced Appellant to twenty-five (25) years
incarceration . He now appeals his conviction to this Court as a matter of right. Ky .
Const . § 110(2)(b) .
Appellant contends the trouble arose in 1996, before GLG's tenth birthday,
when GLG's parents discovered she was dating an eighteen (18) year-old boy she
had met at church. GLG testified that Appellant sexually molested her beginning in
1996, in the month of her tenth birthday and that the molestation continued until April
2000, when she was fourteen (14) .
One evening in 2000, GLG left church early and was stopped by an officer on
the road . GLG told the officer she did not want to return home because she was
afraid she would be abused by her parents because they had found out about the
love letters exchanged between her and her boyfriend . GLG was placed in foster
care after being interviewed by the police and social workers . She later recanted her
accusations purportedly because she was unhappy about being kept away from her
siblings. Later, though, she agreed to proceed with the charges against Appellant .
Dr. Ashburn, from the Cabinet for Families and Children ('the Cabinet'),
examined GLG after receiving her medical history from 1996 forward. His
examination revealed an abnormal scarring which would have been consistent with
penetration of the vagina by a penis or another object .
GLG's mother denied ever knowing that Appellant had abused GLG .
Although, she did confirm that she had taken GLG to the emergency room in 1996
with bleeding problems, and that she regularly had problems with vaginal infections.
Also, GLG's mother testified that GLG confronted her and Appellant about the abuse
in January 2001 in front of social workers, but she said that GLG later stated she was
lying because they would not let her be with her boyfriend .
Appellant testified that he never engaged in any sexual contact with GLG . He
stated that he did not remember whether he was present when GLG confronted him
and his wife in front of social workers about an earlier incident of abuse in the home.
He first denied the event ever happened .
In rebuttal, the Commonwealth called social worker Jimmy Middleton . He
repeated the allegations made by GLG when she confronted her parents while
accompanied by him and two other social workers . The trial court allowed Mr.
Middleton's testimony as to statements made by GLG because GLG had already
testified to the same statements .
Appellant was found guilty on all four charges, and appeals to this Court based
on the following issues : (1) the trial court erred in failing to grant a Directed Verdict
on Count I of first-degree rape when the verdict was against the weight of the
evidence ; and (2) the trial court erred by permitting the Commonwealth to introduce
hearsay that only served to bolster the credibility of the victim's testimony and
prejudice Appellant .
Appellant argues the Commonwealth did not prove its case beyond a
reasonable doubt; and, as a result, he was denied due process of law as guaranteed
by the Fifth and Fourteenth Amendments to the United States Constitution, and
Section 11 of the Kentucky Constitution . Appellant moved for a Directed Verdict,
arguing that the Commonwealth lacked sufficient evidence to support the charge of
first-degree rape .
According to KRS 510 .040(1)(b)(2), a person is guilty of rape in the first degree
when he engages in sexual intercourse with another person who is incapable of
consent because she is less than twelve (12) years old . Appellant argues that GLG
gave conflicting testimony about when and where the rape occurred, how old she was
at the time of the initial rape, and who was present in the house at the time . He
points out that she also reported sexual abuse to the social worker, and then recanted
the story. Further, he notes that she could not identify what Appellant was wearing
during the first rape, and that there was no DNA or physical evidence recovered to
support GLG's initial allegations .
Appellant's claims primarily concern credibility and weight of testimony, which
are issues for the jury to decide. Because credibility and weight are exclusively jury
issues, his argument must fail. Commonwealth v. Sawhill , Ky., 660 S .W.2d 3 (1983) .
Furthermore, GLG's testimony was neither incredible nor uncorroborated because Dr.
Ashburn testified to GLG's history, and his examination revealed injury consistent with
that history. Further, GLG's mother corroborated her testimony as to the onset of her
emotional upset, vaginal bleeding, and other physical problems in January 1996 .
Furthermore, mere inconsistencies as to the victim's age do not make the
evidence insufficient . Owsley v. Commonwealth , Ky . App ., 743 S.W.2d 408 (1987) .
Therefore, we believe that the trial court did not err in denying Appellant's Motion for a
Secondly, Appellant argues that the trial court erred in allowing hearsay by
social worker Middleton, who repeated what GLG had said in 2001 in a meeting with
him, other social workers, and GLG's parents . GLG's statement was that Appellant
had raped her multiple times, and she was emotionally disturbed . Appellant argued
that GLG had already testified to this information, and that it was hearsay .
Under KRE 801(c), hearsay is defined as "a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted ." Hearsay is prohibited by KRE 802, which states that
hearsay is not admissible except as provided by the rules of evidence. Appellant
argues that the Commonwealth offered no valid exception to the hearsay rule to
permit the testimony of Mr. Middleton .
However, this Court believes that the testimony was not impermissible
hearsay, and was proper rebuttal. It was not offered to prove the truth of the matter
asserted, i.e ., that Appellant had raped GLG . It was only offered in rebuttal to prove
that GLG had actually confronted Appellant with her charges, since Appellant either
denied or could not remember the statements . Therefore, the statements had
relevancy beyond the truth of the matter asserted . Further, when a statement is
offered merely to prove that it was uttered, as in this case, the statement is
admissible . Osborne v. Commonwealth , Ky., 43 S.W.3d 234 (2001). Consequently,
there is no abuse of discretion when Appellant opened the door by denying that the
statement was even made . Copley v . Commonwealth , Ky., 854 S .W.2d 748 (1993) .
Accordingly, for the above reasons, Appellant's conviction must be and is
hereby affirmed .
COUNSEL FOR APPELLANT :
Department of Public Advocacy
Assistant Public Advocate
100 Fair Oaks Lane Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Frankfort, KY 40601
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204