ZELAND L. DOUTHITT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
January 22, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001059-MR
ZELAND L. DOUTHITT
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
INDICTMENT NO. 96-CR-1069
COMMONWEALTH OF KENTUCKY
APPELLEE
AFFIRMING IN PART,
VACATING IN PART AND REMANDING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and SCHRODER, Judges.
HUDDLESTON, Judge.
Zeland Douthitt was convicted of Sexual Abuse
in the First Degree, a violation of Ky. Rev. Stat. (KRS) 510.110,
and was sentenced to five years' imprisonment.
Douthitt initially
pled guilty to the charge, but after the circuit court declined to
accept the Commonwealth's sentencing recommendation, withdrew his
plea and proceeded to trial.
Douthitt claims on appeal that the trial court erred when
it allowed the Commonwealth to introduce a juvenile adjudication at
the sentencing phase of his trial1 and evidence about changes in
the behavior of the child witness after the report of the alleged
sexual abuse was made.
He also insists that the trial court abused
its discretion when it allowed the mother of the child witness to
stand near the witness stand during the child's testimony.
Douthitt argues that the statute in effect at the time
of his trial prohibited the admission of his juvenile adjudication
at the penalty phase of the trial.2
The trial court admitted
Douthitt's prior juvenile record, relying upon Sanders v. Commonwealth, Ky., 844 S.W.2d 391 (1992).
The Sanders court admitted
evidence of the defendant's prior "juvenile convictions" during the
PFO phase of the trial because KRS 532.055(2)(a)(2), setting out
the procedure for sentencing in felony cases, authorizes evidence
of all "prior convictions."
Id. at 395.
The trial court's reliance upon Sanders in admitting
Douthitt's juvenile record for sentencing purposes was inappropriate.
It is unclear to what the term "juvenile convictions" refers
in the Sanders decision.
Such convictions could mean either
matters adjudicated in juvenile court or convictions received by a
juvenile in an adult court.
Since the court in Sanders does not
1
A final adjudication from the Fayette District Court
juvenile division of a rape charge against Douthitt was admitted.
2
Ky. Rev. Stat. (KRS) 532.055, in effect at the time of
trial, makes admissible in the penalty phase of felony cases
evidence of "prior convictions of the defendant, both felony and
misdemeanor."
2
specify which distinction it is observing, it would be presumptuous
of this Court to do so.3
Even should the court in Sanders have
been referring to matters adjudicated in juvenile court, KRS
635.040 forbids treating a juvenile adjudication as a conviction.4
Moreover, KRS 532.055 admits evidence, at the sentencing phase, of
all "prior convictions, felony and misdemeanor."
Since juvenile
adjudications are not classified as convictions, they cannot be
admitted pursuant to KRS 532.055.
KRS
532.055
has
subsequently
been
admission of certain juvenile adjudications.5
justifying
the
admission
of
Douthitt's
amended
to
allow
The trial court,
juvenile
adjudication,
3
The trial court felt that since the Sanders decision does
not specify that only felony convictions in circuit court are
admissible, the decision allows a defendant's juvenile record to be
used for truth-in-sentencing purposes. Were there no statutes that
contravene that argument, it might be persuasive.
4
KRS 635.040 provides that "[n]o adjudication by a juvenile
session of district court shall be deemed a conviction . . . ."
5
Since July 15, 1997, KRS 532.055(2)(a) has provided, in
relevant part, that:
Evidence may be offered by the Commonwealth relevant to
sentencing including:
* * *
6. Juvenile court records of adjudications of guilt of
a child for an offense that would be a felony if
committed by an adult. Subject to the Kentucky Rules of
Evidence, these records shall be admissible in court at
any time the child is tried as an adult, or after the
child becomes an adult, at any subsequent criminal trial
relating to that person . . . .
3
observed that the amendment to KRS 532.055 was simply a codification of the Sanders ruling.
However, since the Sanders ruling on
the admissibility of "juvenile convictions" is ambiguous, it cannot
be determined whether or not KRS 532.055, as amended, was a
codification of Sanders.6
For that reason, this Court will follow
the Legislature’s dictate that the effective date of the amendments
to KRS 532.055 would become effective on July 15, 1997.
Since
Douthitt's trial was prior to that date, KRS 532.055, as amended,
was not applicable at his trial.
For these reasons, we agree with Douthitt that the trial
court erred when it allowed the introduction of his juvenile
adjudication at the sentencing phase of the trial.
Douthitt's second contention is that the testimony of the
victim's mother regarding changes in the victim's behavior should
not have been allowed into evidence because it was irrelevant and
prejudicial.
The
victim's
mother
testified,
over
Douthitt's
objection, that since the time of the alleged sexual abuse the
victim was staying to herself, was not as talkative as before and
was afraid to go places by herself.
Douthitt cites several Kentucky Supreme Court cases that
stand for the proposition that in cases involving "Child Sexual
6
Inasmuch as there is uncertainty as to whether KRS 535.055,
as amended, is a codification of Sanders, we follow the rule of
lenity which is to give the appellant the benefit of the doubt.
Roney v. Commonwealth, Ky., 695 S.W.2d 863, 864 (1985).
4
Abuse Accommodation Syndrome," the Commonwealth may not introduce
evidence about the victim's behavior in order to demonstrate that
behavior is consistent with abuse. Brown v. Commonwealth, Ky., 812
S.W.2d 502 (1991); Lantrip v. Commonwealth, Ky., 713 S.W.2d 816
(1986); Bussey v. Commonwealth, Ky., 697 S.W. 139 (1985).
Analogizing the testimony presented in this case with
expert testimony about a child's behavior consistent with abuse,
which is not allowed, Douthitt concludes that the testimony in this
case should not have been admitted.
In Mullins v. Commonwealth,
Ky., 956 S.W.2d 210, 213 (1997), the Supreme Court ruled that where
the evidence is not of the kind which has been previously disapproved by that Court, such as hearsay testimony and syndrome
evidence, the trial court may determine it to be more probative
than prejudicial.7
Such was the situation in this case.
The trial
court considered the evidence and determined that its probative
value outweighed its prejudicial nature.
Whether to admit or
exclude evidence to ensure a fair trial is within the discretion of
the trial court, and its determination will not be overturned on
7
The court in Mullins also cites Simpson v. Commonwealth,
Ky., 889 S.W.2d 781 (1994), where testimony regarding the emotional
distress of the victim and the need for counseling was determined
to be relevant because probative of the fact that the victim did
not consent to a sexual act. Mullins at 213.
5
appeal in the absence of a showing of an abuse of such discretion.
Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988).8
Douthitt's final contention is that the victim's mother
should not have been allowed to stand near the witness stand when
the nine-year old victim was testifying.
The videotape of the
trial shows that, during the victim's testimony, her mother simply
stood behind her and there was no interaction between the two
parties.
Douthitt asserts that Gaines v. Commonwealth, Ky., 728
S.W.2d 525 (1987), disallows a victim's mother to stand near the
witness stand while the victim is testifying since "after a child
has been found competent to testify, the child becomes a witness
the same as any other witness who has taken an oath or affirmed."
Id. at 526.
Douthitt misapplies the import of Gaines, which
requires the trial court to determine whether a child is competent
to testify and is morally obligated to tell the truth.
Furthermore, Ky. Rev. Stat. (KRS) 421.350 allows courts
to order that testimony of a child, twelve years of age or younger,
allegedly the victim of illegal sexual activity, be conducted in a
room other than the courtroom and be televised to the court
proceeding. KRS 421.350 also allows "any person whose presence the
court finds would contribute to the welfare and well-being of the
child may be present in the room with the child during his
8
Even if error, the admission of the testimony of the
victim's mother was harmless and must be ignored.
Ky. R. Civ.
Proc. (CR) 9.24.
6
testimony."
This statute was enacted in recognition of the fact
that testifying in a formal courtroom can be an intimidating
experience for children.
224, 227 (1986).
Commonwealth v. Willis, Ky., 716 S.W.2d
Such provisions counter Douthitt's claim that
courts may not accommodate children's needs when testifying at
trial in sexual abuse.
The trial court properly exercised its
discretion in accommodating the needs of the child victim testifying in this case.
Douthitt also contends that this procedure violated Ky.
R.
Evid.
(KRE)
615,
Exclusion
of
Witnesses.
However,
since
Douthitt did not request that the victim's mother be excluded, this
issue was not preserved for appellate review.
RCr 9.22.
The judgment convicting Douthitt of Sexual Abuse in the
First Degree is affirmed.
Douthitt's sentence is vacated and this
case is remanded to Fayette Circuit Court for resentencing in
accord with the guidelines established in Boone v. Commonwealth,
Ky., 821 S.W. 813 (1992).
SCHRODER, Judge, CONCURS.
KNOPF, Judge, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
Fayette County Legal Aid
Lexington, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Amy F. Howard
Assistant Attorney General
Frankfort, Kentucky
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