BIGGS (JOHN M.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 11, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001802-MR
JOHN M. BIGGS
v.
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 06-CR-00247
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: FORMTEXT ACREE, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: John M. Biggs brings this appeal from an August 7, 2007,
judgment of the Christian Circuit Court upon a jury verdict finding him guilty of
sexual abuse in the first degree and sentencing him to three-years’ imprisonment.
We affirm.
Appellant was indicted by the Christian County Grand Jury upon the
offense of sexual abuse in the first degree. Appellant was accused of sexually
abusing a four-year-old child with whom he was then living. The child claimed
that appellant came into her bedroom, removed her clothing, covered her arms with
a towel, and touched her vagina.
A jury ultimately found appellant guilty of sexual abuse in the first
degree, and appellant was sentenced to three-years’ imprisonment. This appeal
follows.
Appellant’s first argument is that the circuit court committed error by
denying his motion for a directed verdict of acquittal upon the offense of sexual
abuse in the first degree. For the reasons stated, we disagree.
A defendant is entitled to a directed verdict of acquittal if under the
evidence as a whole it would have been clearly unreasonable for a jury to find
guilt. Com. v. Benham, 816 S.W.2d 186 (Ky. 1991). The elements necessary to
sustain a conviction for sexual abuse in the first degree are codified in Kentucky
Revised Statutes (KRS) 510.110. KRS 510.110(1)(b)(2) states that a person is
guilty of sexual abuse in the first degree when he subjects another person to sexual
contact who is incapable of consent because he or she is less than twelve years of
age.1 Sexual contact is statutorily defined in KRS 510.010(7) as any touching of
the sexual or other intimate parts of a person done for the purpose of gratifying the
sexual desire of either party.
Appellant alleges the evidence was insufficient to support his
conviction upon sexual abuse in the first degree. Specifically, appellant points to
1
It is uncontroverted that the child was less than twelve years of age at the time of the offense.
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the inconsistencies in the child’s testimony and the child’s discussion of her
testimony with her parents.
During the first day of trial, the child testified that no one had touched
her vagina and that she had never told anyone that she had been touched. During
the second day of trial, however, the child testified that appellant had touched her
vagina. The child also testified that she had discussed her testimony with her
parents prior to the second day of trial. The child’s mother testified that she and
her husband told the child that she did not have to testify if she did not want to.
The child’s mother further testified that she did not tell the child what to say or
encourage her to say anything untruthful.
It is well-settled law in this Commonwealth that judging the weight
and credibility of witnesses is solely within the province of the jury and the court
shall not substitute its own judgment. Com. v. Jones, 880 S.W.2d 544 (Ky. 1994).
The jury had the opportunity to hear both versions of the conflicting testimony
offered by the child. They also heard both the child and the child’s mother recount
their discussion of the child’s testimony. The jury apparently found credible the
child’s testimony describing the abuse inflicted upon her and identifying appellant
as the perpetrator. Additionally, it is important to note that other evidence
suggested that the child had been sexually abused. A pediatrician who examined
the child testified that there existed redness and irritation around her vagina that
could have been caused by sexual abuse. There was also evidence that the child
frequently touched herself and attempted to kiss her baby sister’s vagina during a
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diaper changing. The child had also been accused of inappropriately touching a
cousin.
Under the evidence as a whole, we hold that the jury’s finding of guilt
on the charge of sexual abuse in the first degree was not clearly unreasonable.
Thus, the circuit court did not err by denying appellant’s motion for directed
verdict.
Appellant next contends that the circuit court erred by ruling that the
child was competent to testify. Again, we disagree.
Kentucky Rules of Evidence (KRE) 601 provides that generally every
person is competent to be a witness. However, a person may be disqualified if the
trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters
about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be
understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a
witness to tell the truth.
KRE 601(b). Additionally, Kentucky does not require a minimum age for the
testamentary capacity of a child. Pendleton v. Com., 83 S.W.3d 522 (Ky. 2002).
Courts also recognize “[t]he competency bar is low with a child’s competency
depending on her level of development and upon the subject matter at hand.” Id. at
525 (citing Jarvis v. Com., 960 S.W.2d 466 (Ky. 1998)). A competency finding by
a trial court is given great deference unless there exists a clear abuse of discretion.
Jarvis, 960 S.W.2d 466.
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In particular, appellant questions the child’s competency to testify
under subsections (2), (3), and (4) of KRE 601(b): the child’s ability to recollect
facts, adequately express herself, and her capacity to understand the obligation to
tell the truth. We will address these issues seriatim.
Under KRE 601(b)(2), the child demonstrated her ability to recall
facts by correctly answering questions posed to her. She was able to state the
names of her parents, aunt and uncle, and her teacher. She also knew the names
and ages of her sister and cousins. The child held up five fingers to signify her age
and stated that she used to live in Alabama with her grandmother. Furthermore,
the crucial part of the child’s testimony involved a single act performed by
someone familiar to her. These circumstances weigh in favor of finding the child
competent. Jarvis, 960 S.W.2d 466. Therefore, we hold the child’s ability to
recall facts was sufficient to satisfy KRE 601(b)(2).
Under KRE 601(b)(3), the child also demonstrated an ability to
express herself in an understandable manner. Although she did experience
moments of frustration and uncooperativeness, her answers were typically clear
and discernible. Additionally, courts in this state have allowed testimony by young
witnesses who have limited communication abilities. Wombles v. Com., 831
S.W.2d 172 (Ky. 1992). We hold that the child demonstrated an ability to express
herself in an understandable manner sufficient to satisfy KRE 601(b)(3).
Under KRE 601(b)(4), the child was also able to demonstrate that she
could distinguish between truth and untruth and further could understand the
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consequences of not telling the truth. She correctly stated that it was a lie when
told she was wearing a black shirt and correctly stated that it was the truth when
told she was wearing a pink shirt. She also stated that telling something that really
happened was the truth. The child also affirmed that it was good to tell the truth
and stated that she would get in trouble if she lied. Furthermore, she agreed that
she would not say something happened if it had not occurred and agreed that she
would tell the truth during her testimony. Accordingly, we hold that the child
possessed an understanding of the truth and of the obligation to truthfully testify
sufficient to satisfy KRE 601(b)(4).
In sum, we are of the opinion that the trial court did not abuse its
discretion in finding the child competent to testify under KRE 601(b).
Appellant also contends that the child was not properly sworn prior to
testifying in accordance with KRE 603, which provides:
Before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken
the witness’ conscience and impress the witness’ mind
with the duty to do so.
Courts in this jurisdiction have recognized that no particular word or
form is necessary so long as the witness acknowledges he will tell the truth,
comprehends the nature of truth, and understands the consequences of lying.
Bright v. Com., 86 S.W. 527 (Ky. 1905); Whitaker v. Com., 179 S.W.2d 448 (Ky.
1944). As previously stated, the child in this case demonstrated her ability to
distinguish the truth from untruth. Furthermore, she promised to tell the truth
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during her testimony and understood that she would get in trouble if she lied.
Thus, we hold that the requirements of KRE 603 were satisfied with respect to the
child.
Appellant’s final contention is that he was denied due process of law
by the prosecutorial misconduct of the Commonwealth. We find this argument to
also be without merit.
When considering an allegation of prosecutorial misconduct, the court
must determine whether the conduct was such that the accused was denied his
fundamental right of due process. Slaughter v. Com., 744 S.W.2d 407 (Ky. 1987).
The relevant inquiry is the overall fairness of the trial rather than the culpability of
the prosecutor. Id. In order to warrant reversal, the misconduct must be so
egregious that the trial becomes fundamentally unfair. Partin v. Com., 918
S.W.2d. 219 (Ky. 1996), overruled on other grounds by Chestnut v. Com., 250
S.W.3d 288 (Ky. 2008).
Appellant essentially claims that the trial strategy employed by the
Commonwealth inappropriately prejudiced the jury to the extent that they could
not render an impartial verdict. Specifically, appellant complains that the
prosecutor improperly elicited testimony concerning witnesses’ belief in the
veracity of the child’s allegations, improperly stated to the jury during closing
arguments that the child’s parents believed her testimony, and improperly
questioned appellant about a prior DUI charge.
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In light of the entire proceeding, we believe that appellant received a
fundamentally fair trial. The sum of the evidence was more than sufficient to
warrant a verdict of guilt upon the charged offense, and considering appellant
received less than the maximum sentence, we do not believe that the conduct of the
prosecutor affected the outcome of the trial. See Stahl v. Com., 50 S.W.2d 952,
244 Ky. 356 (1932). Therefore, we hold that the conduct of the prosecutor did not
render appellant’s trial fundamentally unfair and appellant was not denied his
fundamental right of due process.
For the foregoing reasons, the judgment of the Christian Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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