PAUL EBERTSHAUSER v. COMMONWEALTH OF KENTUCKYAnnotate this Case
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: April 15, 2005; 10:00 a.m.
Commonwealth Of Kentucky
Court of Appeals
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
ACTION NO. 99-CR-00175
COMMONWEALTH OF KENTUCKY
** ** ** ** **
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
Paul Ebertshauser appeals the final judgment
and sentence of imprisonment entered by the Bullitt Circuit
Court on November 21, 2003.
The judgment reflected a jury
verdict which found Ebertshauser guilty of first-degree sexual
abuse, a class D felony in violation of KRS 510.110, and imposed
a one (1) year sentence.
Ebertshauser raises three (3) issues
Ebertshauser was indicted on December 21, 1999, on the
charge of first-degree sexual abuse.
The indictment charged the
That on or about the 18th day of April
1999, in Bullitt County, Kentucky,
[Ebertshauser] committed the offense of
Sexual Abuse in the First Degree by engaging
in sexual contact with J.P. a minor less
than 12 years of age.
The underlying facts supporting the indictment reveal
the following sequence of events.
Ebertshauser and his wife,
Dana, were babysitting J.P. on April 17, 1999, while J.P.’s
mother attended “Thunder over Louisville.”
Dana is J.P.’s half-
The Ebertshausers have babysat the
children in the past, but J.P. had never stayed overnight unless
her mother or another adult had stayed with her.
day, the Ebertshausers and the children attended a party at a
Alcoholic beverages were consumed by the
various adults in attendance.
After the party ended, the
Ebertshausers and the children returned home.
On this night,
J.P. was to sleep on the floor in the same bedroom as the
J.P. testified that sometime during the night
she awoke in bed with the Ebertshausers and that Paul
Ebertshauser was fondling her genitals and then digitally
penetrated her vagina.
After this occurred, Ebertshauser left
the bed and entered the bathroom.
J.P. then left the bed and
fell back asleep on the floor.
J.P. did not report this
incident until July 31, 1999, when she told her mother.
The case was originally brought to trial on January
15, 2002, but that trial ended in a mistrial after J.P. had
Eventually, the case was retried on October
This trial ended in a jury verdict finding
Ebertshauser guilty of first-degree sexual abuse and sentencing
him to one year.
Following a pre-sentencing investigation and a
hearing on whether or not Ebertshauser was eligible for
probation in light of KRS 532.045, the Bullitt Circuit Court
entered judgment imposing the one year sentence and finding
Ebertshauser was not eligible for probation.
released on an appeal bond and this appeal followed.
On appeal, Ebertshauser claims his conviction and
sentence should be reversed based upon three trial errors.
First, he contends the trial court erred by denying his motion
for a directed verdict at the completion of the Commonwealth’s
case because the Commonwealth had failed to prove venue.
Related to this issue is Ebertshauser’s claim that the trial
court erred by permitting the Commonwealth to reopen its case
and present evidence of proper venue.
Next, Ebertshauser claims
the trial court erred by refusing to permit him to use testimony
from the first trial to show inconsistencies in J.P.’s testimony
at the second trial.
Finally, Ebertshauser argues that the
trial court erred in its interpretation of KRS 532.045 in
denying him probation because the court found he was in a
position of authority when the sexual abuse occurred.
address each issue in the order presented in the parties’
We first address Ebertshauser’s claim that the trial
court erred by permitting the Commonwealth to reopen its case
and present proof that the crime occurred in Bullitt County,
During the trial, the Commonwealth established only
that the alleged abuse occurred at Ebertshauser’s residence
located at 165 Mockingbird Lane.
Ebertshauser requested a
directed verdict and specifically argued that the Commonwealth
failed to establish proper venue.
After discussing the issue
for several minutes, the court made the following statement:
Well, Mr. Ferguson [the
Assistant Commonwealth Attorney], the Court
disagrees that it is not the burden of the
Commonwealth to show that the alleged crime
took place in the county where the
indictment was returned, that being Bullitt
The Court made a note at the time that
the Commonwealth presented its evidence that
there had been no showing that the offense
took place in Bullitt County.
On the other hand, in Rounds v.
Commonwealth, [Ky., 139 S.W.2d 736 (1940)],
it is stated that it only takes slight
evidence, either direct or circumstantial,
to sustain the venue since that does not
affect the issue of guilt or innocence. So
the question is whether or not there was
sufficient slight circumstantial evidence to
show that venue was in Bullitt County.
The parties made additional arguments and the court added:
I don’t believe, Mr.
Farris [Ebertshauser’s attorney], that this
Court should grant a Directed Verdict on
What I am going to do, I am going to
allow the Commonwealth an opportunity to reopen its case to establish the venue.
So I will withhold a ruling on that
Motion and see if the Commonwealth wants to
do that. If they don’t, then I may change
To which the Commonwealth responded:
re-open our case.
The Commonwealth, over Ebertshauser’s objection, recalled
Detective Rick Melton of the Kentucky State Police who testified
that the sexual abuse occurred at 165 Mockingbird Lane which is
in the city of Shepherdsville, and in Bullitt County.
There can be no dispute that the burden to prove
proper venue rests on the Commonwealth.
KRS 452.510 provides as
Unless otherwise provided by law, the venue
of criminal prosecutions and penal actions
is in the county or city in which the
offense was committed.
In Commonwealth v. Cheeks, 698 S.W.2d 832 (Ky. 1985), the
Supreme Court of Kentucky explained the reason why proper venue
is so important when it stated:
The circuit courts of this state are never
without “jurisdiction” to preside over the
prosecution of offenses committed in
Kentucky; rather, KRS 452.510 stipulates
that “venue” is improper in the circuit
court of a county other than that in which
the offense has been committed. The purpose
of mandating the prosecution of a case in
the county in which the offense has been
committed is to insure that the defendant is
tried by an impartial jury from the vicinity
in which the offense has been committed.
The Constitution of Kentucky, Section 11
reads in part:
“...and in prosecutions by
indictment or information, he
shall have a speedy public trial
by an impartial jury of the
According to Ballatine, vicinage is
“the area surrounding a particular place,
specifically the place where the cause of
action is alleged to have arisen or where a
crime is alleged to have been committed.”
Prosecution in the county in which the
offense has been committed also insures that
witnesses and evidence are more readily
available to both the prosecutor and the
defendant. “Venue” then is merely a
statutory prescription that the prosecution
be in the county in which the offense has
been committed and that the prosecution is
in a court which has “jurisdiction” to
preside over the case, i.e. the circuit
court of that county. The statutory
prescription also requires proof by the
prosecutor that the offense did in fact
occur in the county in which the case is
being prosecuted. It has generally been
held in this state that it is not necessary
to show direct evidence that the crime
occurred in the county of its prosecution,
but the fact may be inferred from evidence
and circumstances which would allow the jury
to infer where the crime was committed. See
Gilley v. Commonwealth, 280 Ky. 306, 133
S.W.2d 67 (1939); Rounds v. Commonwealth,
282 Ky. 657, 139 S.W.2d 736 (1940); Vinson
v. Commonwealth, Ky., 248 S.W.2d 430 (1952);
Byrd v. Commonwealth, Ky., 283 S.W.2d 191
(1955); Woosley v. Commonwealth, Ky., 293
S.W.2d 625 (1956).
Id. at 835.
In the case before us, the trial court acknowledged
that the Commonwealth had not presented sufficient proof of
venue at the time Ebertshauser made his motion for a directed
But the court, sua sponte, permitted the Commonwealth
to re-open its case to establish this essential element of
Upon re-opening, venue was established.
Thus, the issue
is not whether the ruling on the motion for directed verdict was
proper but rather did the trial court err in permitting the
Commonwealth to re-open its case.
Ebertshauser argues that the
trial court abused its discretion when it allowed the
Commonwealth to re-open its case and establish venue.
the next sentence, he concedes that it is within the sound
discretion of the court to permit the case to be re-opened for
further testimony, citing Scheben v. George Wiedemann Brewing
Transcript of Testimony Volume II, page 12 from jury trial on August 8,
2003. “The Court: What I am going to do, I am going to allow the
Commonwealth an opportunity to re-open its case to establish the venue.
Co., 170 S.W. 948 (Ky. 1914).
He also cites to Martin v.
Commonwealth, 141 S.W.54 (Ky. 1911), for the proposition that
the court’s discretion is to be exercised wisely under the facts
of each particular case, and for the purpose of promoting
The Commonwealth notes that Ebertshauser fails to cite
to any authority that would prohibit such a re-opening in a
criminal prosecution and this Court has not found any in its
research of the issue.
Instead, there are many cases that have
permitted re-opening to allow such to insure that substantial
justice is done.
See Montgomery v. Commonwealth, 262 S.W.2d 475
(Ky. 1953); Bowman v. Commonwealth, 438 S.W.2d 488 (Ky. 1968);
Shaw v. Commonwealth, 497 S.W.2d 706 (Ky. 1973); Hays v.
Commonwealth, 625 S.W.2d 575 (Ky. 1981).
While it is obviously
the better practice for the Commonwealth to present proof of all
essential elements in its case in chief prior to “resting”, we
believe the trial court did not abuse its discretion in allowing
the Commonwealth to re-open its case to present evidence of
Ebertshauser’s second claim of error is his contention
that the circuit court erred in refusing to admit in this trial
prior inconsistent statements made by J.P.
He contends that two
statements made by J.P. in this trial regarding how her
underwear got pulled down and testimony that Ebertshauser told
her several times that she would be sleeping in his bedroom were
inconsistent with testimony from the first trial.
these statements are covered by KRE 801A(a)(1) which states:
Prior statements of witnesses. A
statement is not excluded by the
hearsay rule, even though the declarant
is available as a witness, if the
declarant testifies at the trial or
hearing and is examined concerning the
statement, with a foundation laid as
required by KRE 613, and the statement
Inconsistent with the declarant’s
KRE 613(a), regarding statements of witnesses, states:
Examining witness concerning prior
statement. Before other evidence can
be offered of the witness having made
at another time a different statement,
he must be inquired of concerning it,
with the circumstances of time, place,
and persons present, as correctly as
the examining party can present them;
and, if it be in writing, it must be
shown to the witness, with opportunity
to explain it. The court may allow
such evidence to be introduced when it
is impossible to comply with this rule
because of the absence at the trial or
hearing of the witness sought to be
contradicted, and when the court finds
that the impeaching party has acted in
The Commonwealth counters by stating that Ebertshauser
did in fact get the first inconsistent statement before the jury
and that he failed to comply with KRE 613(a) as to the second
And the Commonwealth adds that when given an
opportunity to comply, Ebertshauser let the statement drop and
resumed questioning J.P. on other aspects of her allegations.
Thus, the Commonwealth argues that there was no error and if
there was, it was not preserved.
The transcript of testimony
heard at the second trial reveals the following exchanges
between the parties and J.P.:
DIRECT EXAMINATION BY THE COMMONWEALTH:
How did you know where to go to sleep
Because Paul told me where I was going
When did he do that?
Three to four times earlier that day.
Tell us about that, [J.P.].
Whenever I got there - - a little bit
after I got there Paul told me that I was
going to be sleeping in his room with him,
and Dana, and Marissa. And then he told me
again at Penny and John’s and then he told
me right before I went to bed.
Did you say anything to him when he
said that you would be sleeping in their
Did you ask about what bed you would be
When it came time to go to bed, you
said you followed him upstairs?
What did you do?
Me and Dana got some covers and laid
them on the floor beside the playpen where
Marissa was sleeping. And I laid down on
the covers and covered up and went to sleep.
You laid down and went to sleep?
Did you sleep the whole night through?
I woke up with the Defendant and his
wife’s bed and I was between them laying on
my right side. And his wife was in front of
me and he was behind me, and he had his hand
between my legs with his finger in my
Do you remember what you were wearing
when you went to sleep that night?
What was that?
I was wearing a nightgown and
When you woke up in the bed were you
still wearing the nightgown and underwear?
I was wearing a nightgown but my
underwear were pulled down.
Did you pull your underwear down?
How did it get down?
I guess the Defendant pulled them down.
Were you aware of him doing that?
Did you ever try to pull your underwear
Can you tell me about that?
I tried to pull my underwear up and he
pulled them back down.
Was that before or after he had put his
finger in your vagina?
. . .
CROSS EXAMINATION BY MS. RAKES:
(CONTINUING) [Another Attorney Representing
[J.P.], you do recall testifying in
January of 2002. Correct?
Okay. When you testified in January,
you never testified that after Paul pulled
down your panties you pulled them back up
and then he pulled them back down. Is that
Is it correct that you didn’t testify
the same way back in January. Right?
So that’s something new today?
Okay. And you never testified in
January of 2002 that during the day of April
17th, 1999, Paul, on three or four occasions,
talked about you spending the night in their
May we approach?
I’m sorry, Your Honor.
(BENCH CONFERENCE – NOT TRANSCRIBED)
Following the bench conference, Ebertshauser did not
ask any more questions relating to conversations as to where
J.P. was going to sleep that night.
Ebertshauser argued that
the court denied him the right to show inconsistencies in J.P.’s
testimony from her previous testimony in the first trial.
Commonwealth argued that this was not an inconsistency but
rather an omission because she had not testified about this at
the first trial.
Both parties concede that a trial court’s
ruling on admissibility of evidence is within the sound
discretion of the trial judge and are reviewed under the abuse
of discretion standard.
Simpson v. Commonwealth, 889 S.W.2d 781
See also, U.S. v. Strother, 49 F.3d 869 (2nd Circuit
As to the first statement, we agree with the
Commonwealth that Ebertshauser effectively presented the
inconsistency of J.P.’s testimony from the first trial to the
As to the second contested statement dealing with
alleged statements made by Ebertshauser as to where J.P. would
sleep that night, both parties cite to U.S. v. Meserve, 271 F.3d
314 (1st Circuit, 2001).
In Meserve, the defendant claimed that
the court erred by not allowing him to cross-examine a witness
concerning a discrepancy between her trial testimony and her
grand jury testimony.
Similar to this case the issue was the
witness’s omission of certain testimony before the grand jury
but included in her trial testimony.
The Meserve Court held:
Pursuant to the Federal Rules of
Evidence, a witness’s credibility may be
impeached by asking him about prior
inconsistent statements. Fed.R.Evid.
613(a); United States v. Hudson, 970 F.2d
948, 953-54 (1st Cir.1992). The rule applies
“when two statements, one made at trial and
one made previously, are irreconcilably at
odds.” United States v. Winchenbach, 197
F.3d 548, 558 (1st Cir.1999). Prior
statements such as the grand jury testimony
at issue here, that omit details included in
a witness’s trial testimony are inconsistent
if it would have been “natural” for the
witness to include the details in the
earlier statement. United States v. Stock,
948 F.2d 1299, 1301 (D.C.Cir.1991) (citing
Jenkins v. Anderson, 447 U.S. 231, 239, 100
S.Ct. 2124, 65 L.Ed.2d 86 (1980)). This
test is an elastic one, because the
“naturalness” of a witness’s decision not to
include certain information in an earlier
statement may depend on the “nuances of the
prior statement’s context, as well as [the
witness’s] own loquacity.” Id.
District courts have broad discretion
concerning whether two statements are in
fact inconsistent, and thus whether the
witness may be impeached by the prior
statement. Udemba v. Nicoli, 237 F.3d 8, 18
(1st Cir.2001) (citing United States v.
Agajanian, 852 F.2d 56, 58 (2nd Cir.1988);
United States v. Jones, 808 F.2d 561, 568
(7th Cir.1986)). Nevertheless, under certain
circumstances, a district court’s refusal to
permit a witness to be questioned about a
prior inconsistent statement may constitute
reversible error. See, e.g., Stock, 948
F.2d at 1301 (citing United States v.
Standard Oil Co., 316 F.2d 884, 891-92 (7th
Cir. 1963); United States v. Ayotte, 741
F.2d 865, 870-71 (6th Cir.1984)).
Here, however, the district court did
not abuse its wide discretion by refusing to
allow Meserve to cross-examine Grant
regarding the omission from her grand jury
testimony of certain details about which she
testified at trial. Before the grand jury,
Grant was not asked whether she remembered
anyone coming into the Chez Paris on the
night of the crime nor whether she saw any
of the victims of the crime at any point.
Although Meserve argues that questions about
whether Meserve recognized any of the
workers at the Ferris Market and about Grant
and Meserve’s activities after they went to
the Chez Paris should have prompted Grant to
mention that she saw Craig at the Chez Paris
that night, such nuances are peripheral and
not directly inconsistent. Thus the
district court did not abuse its discretion
by refusing to allow Grant to be questioned
about her prior omission. The right to
confrontation through cross-examination is
not unlimited. A district court has “wide
latitude … to impose reasonable limits on …
cross-examination based on concerns about …
interrogation that is repetitive or only
marginally relevant.” Van Arsdall, 475 U.S.
at 679, 106 S.Ct. 1431. The district court
appropriately exercised its authority under
the circumstances of this case.
Id. at 271 F.3d at 320-21.
We believe, based upon the reasoning set forth above,
that the circuit court in this case did not abuse its discretion
by refusing to allow Ebertshauser to attempt to impeach J.P.’s
testimony by using a prior omission.
In this case, J.P. was
eight years old when the crime allegedly occurred and only
eleven at the time of the first trial.
We do not believe her
failure to include a statement about a fact that she was not
directly asked can be used to impeach her credibility.
v. Commonwealth, 76 S.W.3d 923, 930-31 (Ky. 2002), the Supreme
Court of Kentucky held the age of the witness/victim is a factor
in this determination when it stated:
Appellant asserts that the rule should be
further relaxed in this case because of
C.M.’s tender years and the alleged
difficulty in cross-examining her. We note
that, although the opinion in Drumm [v.
Commonwealth, 783 S.W.2d 380 (Ky. 1993)],
did not state the age of the witness/victim
at the time of his testimony, it did state
that he was six years old at the time the
sexual offense was perpetrated against him.
Id. at 380. And while it is sometimes
difficult to elicit desired responses during
cross-examination of a child of tender
years, the fact remains that, here, the
question was never asked. Thus, the trial
judge correctly admonished the jury to
disregard the impeachment evidence elicited
from Steve Ethington.
Finally, we should also note that had we believed
(which we do not) that the trial court erred in this matter, we
would find that any error was harmless.
permitted to aggressively cross-examine J.P. and to attack both
her credibility and motives.
He also testified and had
witnesses testify on his behalf who questioned J.P.’s testimony,
her memory as to details, her credibility and her motives.
reviewing the transcripts of the entire trial, the court’s
refusal to allow J.P. to answer this one specific question had
no impact on the outcome of the jury trial.
The last issue raised by Ebertshauser is that the
trial court improperly classified him as being in “a position of
authority” and “position of special trust” for purposes of
Pursuant to KRS 532.045 probation shall not be
granted to a person who occupies a position of special trust and
commits an act of substantial sexual conduct.
The trial court
had informed Ebertshauser prior to sentencing that he did not
believe Ebertshauser eligible for probation.
the conclusion of the trial, the following exchange took place
(at trial transcript page 227):
I could stand corrected,
but since Mr. Ebertshauser was in the
position of trust with [J.P.], I do not
believe he’s eligible for probation,
conditional discharge, or alternative
sentencing, although this is a Class D.
We need to evaluate
I will give you an
opportunity to argue that. I don’t think
there is any question about the fact that
the family relationship and the fact she was
staying at his house overnight, that he was
in a position of trust as far as she was
Ebertshauser filed a motion on October 23, 2003,
requesting a hearing on this issue.
motion was held on November 5, 2003.
Apparently a hearing on his
However, there is no
transcript of the hearing included in the appellate record.
an order entered November 6, 2003, the circuit court found “that
Ebertshauser was in a position of special trust under KRS
532.045(b), defined as a position occupied by a person in a
position of authority who, by reason of that position, is able
to exercise undue influence over the minor.”
Based upon this
finding, the following final judgment and sentence of
imprisonment, in relevant part, denying him probation was
entered on November 21, 2003:
The Court informed the Defendant and
his counsel of the factual contents and
conclusions contained in the written report
of the pre-sentence investigation prepared
by the Division of Probation and Parole.
The Court having given due consideration to
the report prepared by the Division of
Probation and Parole and the Defendant
having been given time within which to
controvert the factual contents and
conclusions contained in said report, the
Court having given due consideration to the
nature and circumstances of the crime, and
the Court having determined by order entered
November 6, 2003 that the Defendant was not
eligible for probation as a result of his
position of authority at the time of the
commission of the crime under KRS 532.045(b)
and having further found that should the
Court of Appeals disagree with Court’s
interpretation of the statute that the Court
would not in any event probate,
conditionally discharge the Defendant due
The deliberate nature of the
The risk that the Defendant
would commit another sexual
offense during any period of
probation or conditional
No sufficient cause having been shown
why judgment should not be pronounced and
sentence imposed, IT IS HEREBY ORDERED AND
ADJUDGED as follows:
The Court finds the Defendant guilty of
1st DEGREE SEXUAL ABUSE, a Class D Felony in
violation of KRS 510.110. The Court fixes
the Defendant’s sentence at One (1) year in
While neither party cites to KRS 533.030 or Adams v.
Commonwealth, 46 S.W.3d 572 (Ky. App. 2000), we believe each to
be controlling on this issue.
KRS 533.030(6), in relevant part,
Any prohibitions against probation, shock
probation, or conditional discharge under
KRS 533.060(2) or 532.045 shall not apply to
persons convicted of a misdemeanor or Class
D felony and sentenced to a period of
confinement or home incarceration under this
In Adams, the Court held:
It appears, however, that the Legislature
has more recently demonstrated its intent to
reduce prison overcrowding by its amendments
to KRS 532.080, which allow probation for
PFO I and PFO II offenders when the felonies
are Class D nonviolent felonies, and KRS
533.030, which exempts Class D felons from
the prohibitions against probation in KRS
533.060(2) and KRS 532.045.
Based on the above, it is clear that the trial court erred in
denying Ebertshauser probation based upon KRS 532.045 in that
his conviction was for a Class D Felony.
However, the trial court proceeded to also deny
Ebertshauser probation on the more traditional reasons of:
the deliberate nature of [Ebertshauser’s] crime; and (b) the
risk that [Ebertshauser] would commit another sexual offense
during any period of probation or conditional discharge.
Ebertshauser’s appellate brief does not address this aspect of
the trial court’s final judgment while the Commonwealth merely
states that because of this finding, if the trial court erred as
to KRS 532.045, it would be harmless error.
to present any legal argument as to the court’s denial of
probation based upon the two conditions set forth above.
clear that in this Commonwealth probation is a privilege rather
than a right.
Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.
As such, Kentucky case law holds that the
determination of whether or not to grant probation is left to
the discretion of the trial court.
S.W.2d 343, 347 (Ky. 1996).
abuse of discretion.
Turner v. Commonwealth, 914
Thus, the standard of review is
The trial court did permit Ebertshauser to
be released on an appeal bond with specific conditions pending
the outcome of his appeal.
This fact may reveal that the court
did not view Ebertshauser as a threat to the victim or community
However, he did specifically consider probation and
rejected it based upon the conditions set forth in his final
judgment and sentence of imprisonment.
While another court may
have granted probation in this case, we do not believe it was an
abuse of discretion not to do so considering the type of charge,
the age of the victim or the position of trust held by
For the foregoing reasons, we affirm the final
judgment of the Bullitt Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric Griffin Farris
Lorie B. Rakes
Gregory D. Stumbo
ORAL ARGUMENT FOR APPELLANT:
Lee R. Remington
Kenneth Wayne Riggs
Assistant Attorney General
ORAL ARGUMENT FOR APPELLEE:
Kenneth Wayne Riggs
Assistant Attorney General