JOEY MEADOWS V. COMMONWEALTH OF KENTUCKY
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RENDERED:
JUNE 3, 2005; 2:00 p.m.
TO BE PUBLISHED
MODIFIED:
July 8, 2005; 10:00 a.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002482-MR
JOEY MEADOWS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
INDICTMENT NO. 02-CR-000861
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.1
MINTON, JUDGE:
INTRODUCTION
Joey Meadows was charged with first-degree rape,2
first-degree unlawful imprisonment,3 and two counts of first-
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
2
Kentucky Revised Statutes (KRS) 510.040.
3
KRS 509.020.
degree sodomy.4
A jury found him guilty of first-degree sexual
abuse5 (a lesser included offense of first-degree rape), firstdegree unlawful imprisonment, and one count of first-degree
sodomy.
The jury found him not guilty of the remaining count of
first-degree sodomy.
jury.
Meadows then waived sentencing by the
The circuit court sentenced him to a maximum of fifteen
years’ imprisonment.6
Meadows brings a direct appeal of his judgment of
conviction.
He asserts three errors by the trial court:
failing to instruct the jury on fourth-degree assault,7 allowing
Dr. William Smock to testify as an expert witness regarding a
bite mark on Meadows’s penis, and allowing Dr. Russell Compton
to testify about T.H.’s account of the sexual assault and to
give his expert opinion that T.H.’s injuries were consistent
with her account.
Finding no reversible error, we affirm.
4
KRS 510.070.
5
KRS 510.110.
6
The October 20, 2003, Judgment of Conviction and Sentence sentenced
Meadows as follows: “five (5) years for Sexual Abuse in the First
Degree; ten(10) years for Sodomy in the First Degree; and five (5)
years [for] Unlawful Imprisonment in the First Degree, for a total
of FIFTEEN (15) YEARS.” Capitalization as in original, emphasis
omitted. It is unclear from the order which sentences are to run
concurrently and which are to run consecutively in order to reach
the total of fifteen years’ imprisonment. However, no one has
raised this issue on appeal.
7
KRS 508.030.
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CONTACT BETWEEN MEADOWS AND T.H.
After spending some time with Jennifer and Corey
McDonald and Meadows in the McDonalds’s home, T.H. decided to
spend the night there.
She had come to the McDonalds’ home with
Meadows, who is also Jennifer’s brother, after meeting him in a
bar a few hours earlier.
McDonalds.
Meadows also was staying with the
T.H. borrowed pajamas from Jennifer and went to
sleep alone in the bedroom to which Jennifer had taken her.
At this point, the accounts of T.H. and Meadows, both
of whom testified at trial, diverge.
According to T.H, she did
not know that the bedroom Jennifer escorted her to was also the
same bedroom where Meadows planned to sleep.
She testified that
she woke up to find that Meadows had removed her pajama bottoms
and was on top of her.
He was penetrating her vagina with his
penis and touching her breast.
kicking.
She resisted, struggling and
He then switched to performing oral sex on her.
After
more resistance by T.H., Meadows pinned her arms, grabbed her
chin, and forced his penis into her mouth.
Later, he again
attempted sexual intercourse.
T.H. asserted that Meadows forced all of these sexual
acts upon her.
her.
He pinned her down and physically restrained
She struggled and kicked and bit Meadows at least once.
Meadows repeatedly hit her in the head, choked her, and held or
dragged her by her hair.
He threatened to rape her anally if
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she were not cooperative.
He once held a pillow over her head
and, on multiple occasions, threatened to kill her by breaking
her neck or strangling her if she awakened anyone.
He added
impact to these death threats by telling her that he knew how to
kill people because he was trained as a Marine.
T.H. was
finally able to escape when he fell asleep.
Meadows testified that he and T.H. never discussed
where he was to sleep because it was understood that they would
sleep together.
Moreover, he said that she should have known
that it was his bedroom since it was a three-bedroom house and
the McDonalds and their baby occupied the other two bedrooms.
He stated that when he went to bed, he and T.H. engaged in
consensual foreplay, which included him penetrating her vagina
with his finger.
Then, of her own initiative, T.H. began
performing fellatio on him.
In the process, she accidentally
injured his penis with her teeth, causing it to bleed, which
made her laugh.
injury.
Meadows went to the bathroom to check out the
The injury and T.H.’s laughter caused Meadows to lose
desire for further sexual contact.
just went to sleep.
was consensual.
At that point, he and T.H.
He testified that all of the sexual contact
He denied ever engaging in sexual intercourse
or cunnilingus with T.H.
He also denied that he ever struck
T.H., threatened her, or prevented her from leaving.
relevant facts will be set forth as needed.
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Other
JURY INSTRUCTION ON FOURTH-DEGREE ASSAULT
The trial court instructed the jury on two lesser
included offenses of first-degree rape:
abuse and sexual misconduct.8
first-degree sexual
In fact, Meadows was convicted of
first-degree sexual abuse rather than first-degree rape.
But
Meadows asserts that the trial court erred by denying his
request for an additional jury instruction on fourth-degree
assault.
He preserved this issue for review under RCr9 9.54(2)10
by tendering a jury instruction for fourth-degree assault and by
arguing to the trial court that he was entitled to this
instruction as a lesser included offense of first-degree rape.
William S. Cooper’s Kentucky Instructions to Juries,
does not list fourth-degree assault among the lesser included
offenses of first-degree rape by forcible compulsion,11 raising
8
KRS 510.140.
9
Kentucky Rules of Criminal Procedure.
10
RCr 9.54(2) dictates that a party may not designate as error the
failure to give an instruction unless one of the following occurs:
“the party’s position has been fairly and adequately presented to
the trial judge by an offered instruction or by motion, or unless
the party makes objection before the court instructs the jury,
stating specifically the matter to which the party objects and the
ground or grounds of the objection.”
11
§4.23 cmt. (1999). This treatise refers to first-degree rape by
forcible compulsion to distinguish KRS 510.040(1)(a) which punishes
sexual intercourse by forcible compulsion from KRS 510.040(1)(b)
which punishes sexual intercourse with a person who is incapable of
consent because he or she is physically helpless or less than twelve
(12) years old. Meadows’s rape charge was based on the use of
forcible compulsion.
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the question of whether it is a lesser included offense of
first-degree rape.
The mere “fact that the evidence would
support a guilty verdict on a lesser uncharged offense does not
establish that it is a lesser included offense of the charged
offense.”12
It might simply be an uncharged offense.
Of the four possible ways set forth in KRS 505.020(2)
by which an uncharged lesser offense can be included within a
charged offense, only the following might apply in the instant
case:
“[the offense] is established by proof of the same or
less than all the facts required to establish the commission of
the offense charged.”13
Fourth-degree assault requires proof of “physical
injury.”14
But physical injury is not an element of rape.15
The
Kentucky Supreme Court has held that second-degree assault is
not a lesser included offense of first-degree rape precisely
because physical injury is an element of the former offense but
not the latter.16
degree assault.
The same reasoning would apply to fourthAlso, when it is not based on the use of a
12
Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).
13
KRS 505.020(2)(a).
14
See KRS 508.030.
15
Wager v. Commonwealth, 751 S.W.2d 28, 30 (Ky. 1988), Van Dyke v.
Commonwealth, 581 S.W.2d 563, 565 n.1 (Ky. 1979). See also,
KRS 510.040.
16
See Wager, 751 S.W.2d at 30.
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deadly weapon or dangerous instrument,17 fourth-degree assault
requires proof that the defendant acted “intentionally or
wantonly” in causing the physical injury.18
In contrast, the
statute for first-degree rape does not require any particular
state of mind, such as intent or knowledge.19
Because fourth-
degree assault cannot be established by proof of the same facts
or less than all of the facts needed to establish first-degree
rape, it cannot be a lesser included offense of first-degree
rape.
Even if it were a lesser included offense, Meadows was
not entitled to an instruction on fourth-degree assault.
A
trial court is required to instruct on every theory of the case
that can reasonably be supported by the evidence,20 but there is
no duty to instruct on a theory that lacks an evidentiary
foundation.21
An instruction on a lesser included offense is
required only if “the jury might have a reasonable doubt as to
17
See KRS 508.030(1)(b). Meadows was not accused of using any deadly
weapon or dangerous instrument.
18
KRS 508.030(1)(a).
19
Malone v. Commonwealth, 636 S.W.2d 647, 647-648 (Ky. 1982) (holding
that the voluntary intoxication is no defense to first-degree rape
because the defendant’s mens rea is not an element of the crime).
See also, KRS 510.040.
20
Ragland v. Commonwealth, 421 S.W.2d 79, 81 (Ky. 1967).
21
Houston, 975 S.W.2d at 929. See Smith v. Commonwealth, 599 S.W.2d
900, 905 (Ky. 1980) (holding that “[i]nstructions in a criminal
prosecution must have a source within the framework of the evidence
introduced at the trial.”).
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the defendant’s guilt of the greater offense[] and yet believe
beyond a reasonable doubt that he is guilty of the lesser
offense” based on the evidence as a whole.22
No special jury
instruction is required where the “negative [of the submitted
instruction] completely covers the defense of the accused.”23
Meadows asserts that he was entitled to an instruction
on fourth-degree assault on the ground that the jury could
believe that T.H. and Meadows engaged in consensual fellatio but
that he physically assaulted her after she accidentally injured
his penis and laughed about doing so.
But this theory is not
supported by the evidence presented at trial.
Meadows’s defense
to the rape charge was that no sexual intercourse ever occurred
and that he never forcibly compelled her to do anything. This
defense was adequately presented by the first-degree rape
instruction since it is simply that instruction’s negative.24
Even if there were evidence to support the theory that
Meadows physically assaulted T.H. after she bit his penis, this
would just be evidence of an uncharged assault not a lesser
included offense of the rape charge.
The evidence does not
support an instruction on fourth-degree assault even if it were
a lesser included offense of first-degree rape.
22
Houston, 975 S.W.2d at 929.
23
Blevins v. Commonwealth, 258 S.W.2d 501, 502-503 (Ky. 1953).
24
See Id.
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Meadows asserts that he was entitled to an instruction
on fourth-degree assault even if it were not a lesser included
offense of first-degree rape because it was crucial to his
defense theory.
A defendant is “entitled to an instruction on
his theory of the case, even if it is an alternative theory as
opposed to a lesser included offense.”25
Thus, the Kentucky
Supreme Court held that if any substantial evidence is presented
to support a defendant’s defense theory that the alleged acts
upon which charges of first-degree rape, first-degree sodomy,
and kidnapping were based all occurred after the victim had been
murdered, the defendant is “entitled upon request to
instructions [on the crime of abuse of a corpse] accordingly,
rather than the jury being left with no alternative except to
convict or acquit of the principal charges.”26
But Meadows has not preserved this issue.
At trial,
he requested the fourth-degree assault instruction solely on the
basis that it was a lesser included offense of the rape charge.
Having given a specific reason for his objection to the trial
court’s failure to instruct on the fourth-degree assault charge,
he may not now raise a different ground.27
Regardless, this
25
Cooper, § 1.04(C).
26
Sanborn v. Commonwealth, 754 S.W.2d 534, 549-550 (Ky. 1988).
27
Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 571 (Ky.App.
1999).
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claim is without merit.
A trial court is not required to
instruct on a defendant’s alternate defense theory unless
substantial evidence to support that theory has been presented.
No such evidence was presented in this case.
Moreover, unlike
Sanborn’s defense, Meadows’s defense to the crime of rape is
simply the negative of the instruction.
additional instruction was required.28
Therefore, no
For all of these reasons,
we find no error in the trial court’s refusal to instruct the
jury on fourth-degree assault.
DR. SMOCKS’S TESTIMONY
Meadows asserts that the trial court erred by
admitting expert testimony by Dr. William Smock that Meadows had
a bite mark on his penis that was the result of a bite of
considerable pressure.
The ultimate decision on whether to
admit expert testimony is subject to review for abuse of
discretion.29
Meadows asserts that the trial court abused its
discretion because Dr. Smock did not meet the requirements set
forth in Stringer v. Commonwealth30 governing the admissibility
of expert witness evidence.
In Stringer, the Kentucky Supreme
Court held that such evidence is admissible so long as the
following conditions are met:
28
See Blevins, 258 S.W.2d at 502-503.
29
Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky. 1999).
30
956 S.W.2d 883 (Ky. 1997).
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(1) the witness is qualified to render an
opinion on the subject matter, (2) the
subject matter satisfies the requirements of
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), (3) the subject
matter satisfies the test of relevancy set
forth in [Kentucky Rules of Evidence (KRE)]
401, subject to the balancing of
probativeness against prejudice required by
KRE 403, and (4) the opinion will assist the
trier of fact per KRE 702.31
Meadow has asserted that Dr. Smock’s testimony did not meet any
of these four conditions.
Dr. Smock examined Meadows in the emergency room of
the University of Louisville Hospital (University Hospital) in
the afternoon following Meadows’s contact with T.H.32
The police
had requested that a clinical forensic examination of Meadows be
performed.
But Meadows also asked to be treated for a bite
wound to his penis.
Dr. Smock examined Meadows for both
purposes.
Dr. Smock testified that Meadows had an abrasion on
the top glans, or head, of the penis and a semicircular
contusion, or bruise, on the lower glans of the penis.
blood was coming from Meadows’s urethra.
blood were documented by photographs.
Also,
These wounds and the
When he asked Meadows how
he was injured, Meadows told him that he was bitten during
31
Id. at 891.
32
Meadows was escorted by police to the emergency room but apparently
had not yet been arrested.
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consensual oral sex by a woman he met at a bar.
Dr. Smock gave
his expert opinion that the physical findings were consistent
with Meadows’s account of suffering a bite to the penis.
cleaned the wound and prescribed an antibiotic.
He
Dr. Smock
wanted to examine Meadows’s urethra because of the presence of
blood, which he indicated was likely caused by a tearing of the
vascular walls inside the urethra due to the pressure of the
bite.
Meadows refused to permit Dr. Smock or the urologist to
examine the urethra.
Dr. Smock did not attempt to identify who made the
bite based on the bite mark.
He conceded that that he could not
determine whether the bite was intentional or accidental based
upon the appearance of the bite mark.
Regarding the force used,
he could only say that a considerable amount of force would be
required to break the skin and damage the blood vessels in the
urethra.
He could not specify whether the bite mark was the
result of a single bite or multiple bites in exactly the same
location, although he deemed the latter less likely.
It might appear at first blush that any error in
admitting Dr. Smock’s expert opinion testimony identifying the
wound on Meadows’s penis as a bite mark is harmless per se.
Detective Eddie Robinson testified that Meadows had said that
T.H. accidentally injured his penis with her teeth during
consensual oral sex but that he had downplayed the seriousness
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of the injury.
Meadows similarly testified that the wound
occurred accidentally during consensual oral sex.
Meadows also
did not object to Dr. Smock’s testifying about Meadows’s earlier
admission to this effect.
However, because Dr. Smock’s
description of the bite mark and the pressure needed to puncture
the skin and tear the blood vessels inside the urethra might
tend to weigh against Meadows’s claim that the wound occurred
accidentally during consensual oral sex, we will review the
merits of this issue.
Meadows first asserts that Dr. Smock was not qualified
to present expert testimony on the nature of the wound and how
it was likely made.
Whether a witness is qualified as an expert
is a factual determination and is reviewed for clear error.33
The trial court conducted a hearing outside the presence of the
jury on this issue, ultimately ruling that Dr. Smock is
qualified as an expert on bite marks.
Dr. Smock is the head of the emergency medicine
department at University Hospital.
He is board-certified in
emergency medicine and has also completed an additional year of
training in clinical forensic medicine.34
He is an associate
33
Bratcher v. Commonwealth, 151 S.W.3d 332, 353 (Ky. 2004), Robert G.
Lawson, The Kentucky Evidence Law Handbook, §6.20[6], at 456 (4th ed.
2003).
34
Dr. Smock described clinical forensic medicine as that branch of
forensic medicine which focuses on living patients.
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professor of emergency medicine at University of Louisville and
teaches emergency medicine and clinical forensic medicine.
Dr. Smock has lectured and written extensively on
clinical forensic medicine including pattern injuries.
He
described the study of pattern injuries as a recognized field of
clinical forensic medicine concerning matching an injury with
the object causing the injury.
of pattern injury.
Bite marks are considered a type
Dr. Smock has actually written on
identifying bite marks and instructs his students in clinical
forensic medicine on diagnosing and treating bite marks.
Dr. Smock testified that he has evaluated hundreds of
bite marks in both living and deceased35 persons.
he has evaluated numerous penile bites.
Specifically,
He has also received
some additional training on bite marks from a Louisville-area
dentist who is a practicing forensic dentist.
Forensic dentists
are experts on identifying persons based on unique
characteristics of their teeth, which may include determining
the identity of an unknown deceased person based on dental
records, determining the age of a person based on his or her
teeth, and determining who made a bite based on an analysis of
the bite mark and the suspect’s teeth.
35
He completed his year of clinical forensic training at the Kentucky
Medical Examiner’s Office.
-14-
In spite of Dr. Smock’s credentials, Meadows still
asserts that he is not qualified to make a bite mark
identification because he is not a dentist and, therefore, not
qualified in the field of forensic dentistry to determine
whether T.H. made the bite on Meadows’s penis.
This is a
contrived argument since Dr. Smock never attempted to identify
who bit Meadows based on the bite mark.
The real issue is
whether Dr. Smock is qualified as an expert to distinguish a
bite mark from any other type of wound and to testify to the
extent of the injury.
The Kentucky Supreme Court ruled in Wheeler v.
Commonwealth36 that a physician pathologist was qualified as an
expert witness to testify whether a wound on a victim’s arm was
a bite mark.37
Thus, the fact that Dr. Smock is a medical
doctor and not a forensic dentist is not dispositive.
Dr. Smock’s specialized training in clinical forensic medicine
and pattern identification, including recognizing and treating
bite marks, and his vast personal experience evaluating and
treating bite marks make him eminently qualified to recognize a
bite mark.
The trial court did not abuse its discretion in
determining that Dr. Smock was qualified to offer expert opinion
testimony on the nature of the injury to Meadow’s penis.
36
121 S.W.3d 173 (Ky. 2003).
37
Id. at 183 (Ky. 2003).
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Meadows also asserts that bite mark analysis did not
satisfy the Daubert test because forensic dental
identificationidentifying a biter based on the bite mark he or
she left behindhas not been empirically tested, is somewhat
subjective, and has a high error rate even by highly trained
forensic dentists.
At trial, Meadows cursorily asserted that
there was no scientific foundation for forensic dentistry and
identification by bite mark; but he did not press for a Daubert
hearing when none was conducted.
It was clear that the focus of
the hearing conducted by the trial court was Dr. Smock’s
qualification to testify about bite mark evidence, not whether
the science behind his testimony was sound.
By failing to
object timely, Meadows has failed to preserve this issue for
judicial review.38
Even if this issue were preserved, it is without merit
because it is based on the mistaken premise that Dr. Smock
identified the person who bit Meadows based on the bite mark.
Attacking this type of dental forensic identification does
nothing to call into question the study of pattern injuries that
formed the basis of Dr. Smock’s expert testimony that Meadows’s
wound was a bite mark.
38
Meadows also cited two isolated cases
See Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001) (holding
that appellant failed to preserve the issue of whether a Daubert
hearing was required by never requesting one nor timely objecting to
the trial court’s failure to conduct one).
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from other jurisdictions in which different forensic dentists
reached different conclusions on whether particular marks were
bite marks.
If the mere existence of a dispute between experts
on the existence of a particular fact were fatal, no expert
testimony would be admitted under Daubert.
Meadows also asserts that Dr. Smock’s testimony is
inadmissible because it is not relevant as defined by KRE 401
and does not pass the balancing test under KRE 403, which
permits relevant evidence to be excluded, among other reasons,
“if its probative value is substantially outweighed by the
danger of undue prejudice. . . .”
Meadows asserts that Dr.
Smock’s testimony is not relevant because it is based on junk
science; but this conclusion is based on the flawed premise that
Dr. Smock identified who bit Meadows based on the
characteristics of the bite mark, a practice of forensic
dentistry which Meadows asserts is lacking in scientific
validity.
Moreover, Meadows admits that this evidence supported
T.H.’s story of sexual assault, in effect, conceding its
relevance.
Meadows further asserts that the expert witness
testimony by Dr. Smock “should have been excluded as more
prejudicial than probative” because Dr. Smock “provided the
evidence to support T.H.’s story of forced sexual relations,”
specifically one count of sodomy.
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But Meadows misapplies the
test of KRE 403.
The test is not whether the probative value is
outweighed by the danger of prejudice but, rather, whether the
probative value is substantially outweighed by the danger of
undue prejudice.
As Meadows himself concedes, this testimony is
relevant to the count of sodomy based on Meadows’s attempt to
force T.H. to perform fellatio.
The fact that Meadows has an
alternative explanation that also might account for the bite
markthat it happened accidentally during consensual oral
sexlessens any possible prejudice.
Because the danger of undue
prejudice is not substantially outweighed by the probative value
of the evidence, the trial court did not err in admitting Dr.
Smock’s expert opinion evidence identifying the wound on
Meadows’s penis as a bite mark inflicted by a bite of
considerable pressure.
Meadows also asserts that Dr. Smock’s opinion did not
serve to assist the jury, as required by KRE 702, but, rather,
to confuse it.
But his real complaint here is not that it
confused the jury but, rather, that it provided additional
support for T.H.’s version of sexual assault.
The fact that
Dr. Smock’s expert testimony is relevant or persuasive does not
make it confusing.
Meadows’s only other basis for saying that
it confused the jury lies in his continuing assertion that
Dr. Smock is unqualified to identify the biter, a contention we
have already discussed.
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DR. COMPTON’S TESTIMONY
Meadows also objected to the trial court’s allowing
Dr. Russell Compton to relate T.H.’s account of the sexual
assault and the events leading up to it and to give his expert
opinion that T.H.’s injuries were consistent with this account.
Dr. Compton examined T.H. when she came in to the
emergency room of University Hospital at approximately 2 p.m. on
March 4, 2002, alleging that she has been sexually assaulted
earlier.
Dr. Compton testified that he first talked with T.H.
to establish a rapport; then performed an external examination;
and, finally, performed a sexual assault examination.
He
testified that T.H. had bruises in the following locations:
over her left eyebrow and eyelid; left shoulder/chest area;
right middle arm; left upper arm; right inner thigh; left outer
thigh; and neck.
Her neck had both linear bruises on one side
and smaller bruises caused by significant pressure.
She also
had multiple abrasions on her right forearm and linear abrasions
radiating out from her vagina.
Dr. Compton also delivered an uninterrupted monologue
lasting almost three-and-a-half minutes recounting everything
that T.H. told him about the sexual assault and the events
leading up to it.
KRE 803(4) sets forth a hearsay exception for
“[s]tatements made for purposes of medical treatment or
diagnosis and describing medical history, or past or present
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symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to treatment or diagnosis.”
Statements by
T.H. concerning how she was struck, pinned down, choked, and
forcibly penetrated are obviously relevant to describing the
inception or cause of her injuries and relevant to treatment or
diagnosis.
And it was not error to admit Dr. Compton’s
retelling of these statements.
But Dr. Compton’s testimony also included many hearsay
statements which would not be admissible under KRE 803(4)
because they were not made for the purpose of medical treatment.
Such statements included, for example, Meadows’s name, the bar
where he and T.H. met, what they did at the bar, where they went
after they left the bar, and what he said to her during the
sexual assault.
testimony.
Notably, Meadows never objected to this
In fact, on cross-examination, Meadows pursued this
line of testimony by asking follow-up questions which would
require additional answers based on inadmissible hearsay.39
Thus, this error is not preserved for judicial review.
Even if
we were to consider this error, we would deem the admission of
this evidence to be harmless error.
Meadows conceded that the
impermissible hearsay testimony was cumulative of other
39
On cross-examination, Meadows asked Dr. Compton whether T.H. stated
whose bed she went to sleep in that night and what she and Meadows
bought at Wal-Mart after they left the bar but before they went to
his sister’s house.
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evidence.
And the admission of inadmissible hearsay testimony
that is cumulative is harmless error.40
Meadows did object to part of Dr. Compton’s testimony:
his expert opinion testimony that T.H.’s physical injuries were
“consistent with” her account of the sexual assault.
Dr. Compton specifically stated that the bruises on her neck
were consistent with being choked, the bruises on her body were
consistent with being forcibly restrained and pinned down, and
the linear abrasions radiating from her vagina were consistent
with blunt force trauma that could result from forcible sexual
intercourse.
Meadows asserts that Dr. Compton’s testimony that
T.H.’s injuries were consistent with the events of the sexual
assault as she described them “leads inextricably . . . to a
conclusion that [she] was telling the truth, thus she was raped
and Joey Meadows was the culprit.”
He asserts that this was
improper expert opinion testimony on the ultimate issue of
guilt.
Meadows cites Newkirk v. Commonwealth41 for the
proposition that such testimony is barred:
“[W]here the
determination of credibility is synonymous with the ultimate
40
See White v. Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999),
Patterson v. Commonwealth, 555 S.W.2d 607, 609 (Ky.App. 1977).
41
937 S.W.2d 690 (Ky. 1996).
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fact of guilt or innocence, expert opinion is inadmissible.”42
But Meadows fails to consider that the Kentucky Supreme Court
more recently held in Stringer v. Commonwealth43 that it was
“depart[ing] from the ‘ultimate issue’ rule.”44
The Court
explained as follows:
The real question should not be whether the
expert has rendered an opinion as to the
ultimate issue, but whether the opinion
“will assist the trier of fact to understand
the evidence or to determine a fact in
issue.” Generally, expert opinion testimony
is admitted when the issue upon which the
evidence is offered is one of science and
skill and when the subject matter is outside
the common knowledge of jurors. Presumably,
jurors do not need assistance in the form of
an expert’s opinion that the defendant is
guilty or not guilty. However, they usually
do need the assistance of a medical expert
in determining the cause of a physical
condition in order to understand the
evidence and determine the ultimate fact in
issue.45
At issue in Stringer was whether the trial court properly
admitted a gynecologist’s testimony in a child sexual abuse case
that his physical findings from a vaginal exam of the alleged
victim were consistent with something being inserted into the
victim’s vagina and consistent with the history of sexual abuse
42
Id. at 694.
43
956 S.W.2d 883.
44
Id. at 891.
45
Id. at 889-890 (quoting KRE 702, citations omitted).
-22-
which she gave the doctor.46
The Supreme Court held that this
was not the equivalent of testimony that the defendant was
guilty but, rather, testimony relevant to determining that the
ultimate fact at issue was more probable.47
Because the Court
determined that the opinion “concerned a subject peculiarly
within the knowledge of a trained physician and was likely to
assist the jury in determining whether [the alleged victim] had
been sexually abused” by the defendant, it held that the
testimony was admissible.48
We can find no meaningful
distinction between the testimony at issue in Stringer and
Dr. Compton’s testimony that his physical findings regarding
T.H. were consistent with the history of sexual assault which
she recounted to him.
Therefore, we hold that the trial court
did not err in admitting this evidence.
DISPOSITION
Having determined that Meadows has not identified any
reversible error or abuse of discretion by the trial court, we
affirm his judgment of conviction.
ALL CONCUR.
46
956 S.W.2d at 889.
47
Id. at 891.
48
Id. at 892.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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