JEFFREY ALLEN DEAN V. COMMONWEALTH OF KENTUCKY
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IS NOT TO BE PUBLISHED AND SHALL NOTBE
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CASE INANY CO UR T OF THIS STA TE.
RENDERED : JUNE 16, 2005
NOT TO BE PUBLISHED
'
Supremr Qlaurf of ~,
JEFFREY ALLEN DEAN
V.
2003-SC-000374-MR
D AT ~~ 7 - 7
-0-5
"
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES WEDDLE, JUDGE
00-CR-00047
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Jeffrey Allen Dean, was convicted of first-degree sodomy, seconddegree rape, first-degree sexual assault, and second-degree sexual assault in the
Casey Circuit Court. The convictions arose from allegations made by his stepdaughter,
J .P., and his daughter, S .D . The first trial ended in a mistrial in August 2002 . The
second trial was held in February 2003 . Appellant was sentenced to a total of twenty
years imprisonment and appeals to this Court as a matter of right.
Cynthia Dean (Mrs . Dean) and her daughter, J .P ., began living with Appellant in
1986 when J .P . was several months old . J .P . testified that the first instance of sexual
abuse occurred in the spring of 1999 when she was a twelve-year-old seventh grader.
Appellant continued to sexually abuse J .P . over the course of the summer. J .P. testified
that she did not want to tell anyone about the abuse because she was afraid of
Appellant, but she eventually told her friend, B.P . B .P . reporte d what J .P . had told her,
and Linda Lee of Family Services and Kentucky State Police Detective Jackie Hunt
C
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I
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went to Appellant's home that evening . J .P . was taken to the home of Glenn Haney to
stay .
J .P. remained at Haney's home until some time near December 1999 . At this
time, Mrs . Dean removed J .P. from Haney's home and returned her to Appellant's
home. After a few weeks, Appellant resumed sexually abusing J .P. These acts of
abuse occurred until May of 2000, when J.P . again told B.P. what Appellant was doing .
B .P . reported the abuse, and J .P. was removed from Appellant's home and placed in a
foster home.
S .D., a natural child of Appellant and Mrs. Dean, was born in August 1990 .
Appellant began sexually abusing her when she was ten years old . At trial, S. D .
testified to several incidents of sexual abuse, including one instance of sodomy .
In
August 2000, S .D . told her grandmother what Appellant had been doing to her. The
following day, on August 15, 2000, authorities placed S.D. in the foster home where J .P.
had been staying .
I.
Appellant argues that the trial court erred to his substantial prejudice in allowing
the admission of double hearsay . At trial, J .P. testified that she was removed from
Haney's home and returned to Appellant's home . Mrs. Dean picked J .P . up from
Haney's home to take her to a Christmas party. They drove to the Wal-Mart store
where Appellant worked . Appellant came out of the store . J .P. testified that she heard
Mrs . Dean say the following to Appellant: that she (Mrs . Dean) told J. P . that she was
bringing her back to Appellant's house because Appellant had so requested . J .P. could
not remember whether Appellant responded to what Mrs. Dean said to him . Defense
counsel objected to the testimony as hearsay. The trial judge overruled the objection
because Appellant was present when the statement was made .
In alleging double hearsay, Appellant mischaracterizes the statement in question .
J .P . testified that Mrs. Dean's statement was made directly to Appellant . Therefore,
Mrs. Dean's statement is the only layer of potential hearsay to address. The issue for
us is whether Appellant made an adoptive admission as to the truth of Mrs. Dean's
statement. KRE 801A(b)(2) concerns the hearsay exclusion of adopted admissions by
a party .
When accusatory or incriminating statements are made in the presence and
hearing and with the understanding of the accused person and concerning a
matter within his knowledge, under such circumstances as would seem to call for
his denial and none is made, those statements, and the fact that they were not
contradicted, denied, or objected to, become competent evidence against the
defendant . . . . Related to this specific rule is that which admits evidence of the
circumstances when the accused makes a reply which of itself is to be regarded
as an admission .
Hodge v. Commonwealth , 17 S .W.3d 824, 847 (Ky. 2000) ; see also Marshall v.
Commonwealth , 60 S.W .3d 513 (Ky. 2001). A party's mere presence when a statement
is made is insufficient to establish an adoptive admission ; there must be some
manifestation of adoption or belief in the truth of the statement. Perdue v .
Commonwealth , 916 S.W .2d 148,158 (Ky. 1995) .
In discussing adoptive admissions, Professor Robert Lawson classifies two types
of admissions, "admissions by conduct" and "admissions through silence." Robert G .
Lawson, The Kentucky Evidence Law Handbook § 8.20[2], at 592 (4th ed . LexisNexis
2003) . Considering an admission by silence, a statement that J.P ., the child who
accused Appellant of sexually assaulting her, was being brought home at Appellant's
request would seem to call for a denial by Appellant were it untrue . However, J .P.
testified that she did not remember whether Appellant made a response to Mrs. Dean's
3
statement . Therefore, we cannot establish whether or not Appellant acquiesced in Mrs .
Dean's statement by remaining silent, and thus, the statement does not qualify as an
adoptive admission through silence. Lawson, supra, § 8 .20[4], at 595 ("A statement
may not be admitted as an adoptive admission [through silence] unless it is established
that the party heard and understood the statement and remained silent .")(citing Ray . v.
Ray, 196 Ky. 579, 245 S .W. 287, 289 (1922)); see also Blair v. Commonwealth , 144
S .W.3d 801, 806 (Ky. 2004).
The Commonwealth also claims that Appellant's conduct, specifically the fact that
J.P . remained in Appellant's home for five months without Appellant notifying family
services or the police, constitutes an admission by conduct . This "conduct" was not a
reaction to Mrs. Dean's statement and does not fall within the converge of KRE
801(A)(b)(2) . Lawson, supra, § 8 .20[2], at 592 ("The premise underlying the concept [of
adoptive admissions] is that parties can react to statements made by nonparties in ways
that manifest an assent to the truthfulness of the assertions contained there .") In sum,
Mrs. Dean's statement to Appellant was not admissible as an adoptive admission under
KRE 801(A)(b)(2) .
Nevertheless, this error was harmless . RCr 9.24 . The test for harmless error is
whether there is any substantial possibility that the outcome of the case would have
been different without the presence of that error. Commonwealth v. McIntosh , 646
S.W.2d 43, 45 (Ky. 1983) . In light of the evidence presented at trial, we do not believe
that the issue of whether or not Appellant wanted J.P . returned home had a substantial
effect on the outcome of the case . Specifically, the jury heard J .P. give detailed
accounts of sexual abuse . The jury also heard the testimony of Sharon Jameson, a
family nurse practitioner, who administered a pelvic examination on J.P . Jameson
explained that J .P .'s vagina had been infected, and that this infection indicated that J.P.
was sexually active . Jameson also testified that J .P .'s hymen was not intact . J .P .
testified that up to the time of the trial she had not had relations with boys, and no
evidence was offered to establish otherwise .
Furthermore, Mrs. Dean's statement that Appellant wanted J .P . home would only
be damning if the jury believed the accusations against Appellant, as his desire to have
her back home alone is consistent with innocence. In addition, if the jurors did not find
J .P . to be credible, that is, if they believed that she was fabricating her accounts of
sexual abuse, then they would have likewise simply not believed her testimony that
Appellant wanted her returned home .
II .
Appellant alleges that the Commonwealth was improperly allowed to ask leading
questions throughout its examination of S.D. The record, however, does not so reflect,
and Appellant does not provide examples of leading questions. At trial, defense
counsel made one objection to a leading question, asked while S.D . was testifying to an
instance of sexual abuse . The trial court overruled the objection on the grounds that the
witness was twelve years old .
A trial court has broad discretion in allowing leading questions to be asked to a
child of tender years . Hardy v. Commonwealth , 719 S .W.2d 727, 729 (Ky. 1986) . Here,
a child, who moments earlier cried during her testimony, was giving a detailed account
of a traumatic event. We find no abuse of discretion .
The judgment and sentence of the Casey Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT
Shelly R. Fears
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
James Havey
Criminal Appellate Division
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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