IMPORTANTNOTICE NOT TO BE P UBLISHED THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY IN ANY OTHER
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IMPORTANTNOTICE
NOT TO BE PUBLISHED
THIS OPINIONIS DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO URT OF THIS STA TE.
RENDERED : SEPTEMBER 22, 2005
NOT TO BE PUBLISHED
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WILLIAM E . BOWEN, JR .
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APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
2002-CR-0066
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, William E. Bowen, Jr ., was convicted by a Bullitt County Circuit Court
jury of first-degree sexual abuse and first-degree sodomy . Appellant waived jury
sentencing and accepted the Commonwealth's recommended sentence of five years'
imprisonment for the sexual abuse charge and twenty years' imprisonment for the
sodomy charge, to be served concurrently . Appellant appeals to this Court as a matter
of right. Ky. Const. § 110 (2)(b) . He assigns the following trial court errors: (1)
improper denial of a motion to suppress his taped statement to police, (2) failure to
allow Appellant to play his taped statement to the jury during voir dire and during
opening statements, (3) failure to grant a continuance to secure a new expert witness,
(4) failure to grant a directed verdict in his favor, and (5) improper denial of his motion
to introduce a posed photograph into evidence . For the reasons set forth herein, we
affirm.
Facts
Appellant worked second-shift as a paint mixer while his wife, Myrtle, ran a
daycare business out of their home . One of the children, J .S., was cared for by Myrtle
from age two until age twelve . In fact, J.S . continuously visited the Bowen home even
after the formal childcare agreement was terminated ; her last visit occurred in
December of 2001 . Some three months later, in March of 2002, Trooper Jonathan
Tapp of the Kentucky State Police interviewed J.S concerning allegations of sexual
abuse she had made to her mother . The interview occurred at the offices of the
Cabinet for Families and Children, with Mary Ellen Murray, a social worker, present . At
the conclusion of the interview, J.S . executed a handwritten statement in which she
wrote that Mr. Bowen masturbated on her stomach . She did not mention any other
inappropriate acts in the handwritten statement .
Later the same day, Trooper Tapp and Ms. Murray went to the Bowen home to
interview Appellant . According to Trooper Tapp's time log, they were at the Bowen
home for about two hours . Trooper Tapp and Appellant, however, present substantially
different accounts of the meeting . According to Appellant, a brief tour of the home was
followed by a high-pressure interrogation session . Trooper Tapp, however, denies that
he conducted an interrogation and described the visit as an informal questioning . At
any rate, the meeting ended after Appellant gave a ten minute taped statement in which
he answered questions posed to him by Tapp. Trooper Tapp testified that he informed
Appellant prior to taking the statement that he was not in custody and that he was free
to refuse to answer any questions, though Tapp did advise Appellant of his rights at the
outset of the recorded statement. Prior to trial, Appellant moved to suppress the taped
statement ; the motion was denied .
At trial, J .S. testified that Appellant sexually molested her in several ways . First,
she alleged that when she was five years old Appellant came into his son's bedroom
where J.S . was napping, masturbated in her presence, and ejaculated on her stomach .
She further testified that Appellant kept sexually explicit magazines in that bedroom .
Second, she related an incident that occurred when she was six or seven years old .
J.S . stated that while she was playing under the kitchen table with a dog, Appellant
forced her to perform oral sodomy . She recounted that he was wearing a pair of green
shorts at the time . Third, J .S . testified that Appellant occasionally would make her
leave the door open when she used the restroom . Fourth, J .S . recounted a story told to
her by Appellant that a nine-year-old girl offered to have sex with him. Fifth, J.S.
testified that Appellant would frequently touch her buttocks while sitting on the couch .
Appellant testified and denied each of J .S .'s allegations, except for telling J .S .
about the young girl who offered to have sex with him. He admitted to occasionally
masturbating in his son's room, but emphasized that he only did so when he believed
he was alone. In addition to Appellant's denial, he presented numerous witnesses to
testify on his behalf. Most of these witnesses were the parents of children who had
been cared for by Appellant's wife and testified that they had never seen or suspected
any impropriety in the home .
The jury found Appellant guilty of both the sexual abuse charge and the sodomy
charge . Appellant waived jury sentencing and was sentenced to five years'
imprisonment for the sexual abuse charge and twenty years' imprisonment for the
sodomy charge, to be served concurrently . This appeal followed .
Motion to Suppress
Appellant argues that the trial court erred in admitting his taped statement. Prior
to trial, defense counsel moved to suppress the statement, arguing that it lacked
relevancy or, in the alternative, that any probative value was outweighed by its
inflammatory effect. Following a hearing, the motion was denied . A renewed motion
was also denied. On appeal, Appellant claims the statement is irrelevant because it
reveals only his proclivity for masturbation, which does not tend to prove an element of
the crimes charged. Appellant also asserts that the statement lacked "time relevance" :
that is, there is no evidence that Appellant's taped statements refer to the time of the
alleged offenses . Finally, Appellant argues that, regardless of any potential relevancy,
the taped statement nonetheless fails the probative versus prejudice balancing test
required by KRE 403 .
"Relevant evidence means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or.
less probable than it would be without the evidence ." KRE 401 . This Court has
elaborated : "To show that evidence is relevant, only a slight increase in probability
must be shown." Blair v. Commonwealth , 144 S .W .3d 801, 808 (Ky. 2004) . Moreover,
the decision whether to admit or exclude evidence is left to the sound discretion of the
trial court, and will not be reversed absent a showing of an abuse of that discretion.
Simpson v. Commonwealth , 889 S.W.2d 781, 783 (Ky. 1994) .
Upon review of the record, we conclude that Appellant's taped statement
contained information probative of the crimes charged and therefore was properly
admitted . The allegation underlying the sexual abuse charge was that Appellant had
masturbated and ejaculated on J .S. while she was napping in his son's room. During
the taped interview, Appellant discusses his proclivity for masturbation, his practice of
masturbating in his son's room, and J.S.'s habit of napping in that same room . In fact,
when asked by Trooper Tapp if it was possible that he had unknowingly masturbated
while J .S. was napping in the room, Appellant admits that it was "very possible ."
Moreover, Appellant's admission that he stored his pornographic materials in his son's
room corroborated a portion of J .S .'s statements to Trooper Tapp, in which she
identifies the son's bedroom as where Appellant kept pornographic magazines . Due to
the nature of the allegations against Appellant, the taped statement - in which he admits
an ongoing practice of masturbating in the same room where J.S. claims he ejaculated
on her - more than satisfies the minimal threshold of relevancy .
Furthermore, we are not persuaded by Appellant's claim that the statement
lacked "time relevance ." Appellant argues that he gave the statements to Trooper Tapp
under the belief that Trooper Tapp was referring to J .S.'s most recent visit to his home,
in December of 2001 . According to Appellant, statements concerning acts that
occurred seven to ten years after the alleged crimes lack probative value.
Appellant accurately notes that the taped statement itself contains no reference
to the date when the crimes allegedly occurred, nor does Appellant specify whether he
was answering questions about acts that had occurred recently or several years prior.
However, Appellant fails to recognize that the taped statement also does not
conclusively rule out the possibility that he was discussing his personal practices at the
time the abuse allegedly occurred . Thus, because the jury could have reasonably
concluded that Appellant was discussing the past, the statement is probative of the
sexual abuse charge. Furthermore, during the suppression hearing, Trooper Tapp was
specifically questioned on this point and noted that, prior to taking the statement,
Appellant said that he masturbated in the bedroom "all the time" and during "the same
time that [J .S.] was napping in there ." In light of this testimony and the varying
conclusions that could legitimately be drawn from Appellant's statements, it cannot be
said that the trial court abused its discretion in admitting the statement for the jury's
consideration. The alleged "defect" of which Appellant complains - the lack of a
defined time frame to his admissions - relates more to the weight of the evidence, not
its admissibility. See Sawhill v. Commonwealth , 660 S.W .2d 3, 5 (Ky. 1983) .
Alternatively, Appellant asserts that the taped statement should have been
suppressed because any probative value was outweighed by its prejudicial effect. KRE
403 provides that otherwise relevant evidence may be excluded if "its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the issues or
misleading the jury." We recognize that evidence of masturbation or other sexual
preferences is highly personal, and may at times be unduly prejudicial. See e .g.
Chumbler v. Commonwealth , 905 S .W .2d 488 (Ky. 1995) .
However, KRE 403 requires
that we consider the prejudicial effect of such information weighed against the probative
value of the evidence . We reiterate that the sexual abuse charge alleged that Appellant
masturbated in front of and ejaculated on J .S . Considering the circumstances, it is not
unreasonable to question Appellant about masturbation, and whether he masturbated
in his son's bedroom, as J .S. alleged . Prejudice is that which is unreasonable and
unnecessary . Partin v. Commonwealth , 918 S .W .2d 219, 223 (Ky. 1996) . Accordingly,
we find that the taped statement was sufficiently probative of the crimes charged, and
was permissible pursuant to both KRE 401 and KRE 403 .
Finally, Appellant argues that his statement is inadmissible under KRE 404(b),
which prohibits "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of
a person in order to show conformity therewith ." We disagree . The Commonwealth did
not admit Appellant's taped statement as evidence of his habit of masturbating, in order
to show action in conformity with that habit. Rather, the Commonwealth admitted
Appellant's statements as a qualified confession to the allegations .
The decision whether to admit or exclude evidence is left to the sound discretion
of the trial court . Simpson v. Commonwealth , 889 S .W .2d 781, 783 (Ky. 1994) . We will
not reverse its decision absent proof on the record that the trial court abused its
discretion. Id . An abuse of discretion is not merely an error of law or judgment, but is
an unreasonable exercise of arbitrary or biased judgment. Id. The facts of this case do
not demonstrate such an error.
Voir Dire and Opening Statements
Appellant next argues that the trial court erred in prohibiting him from playing his
taped statement to prospective jurors during voir dire. Appellant sought to play the tape
to determine if any juror would find Appellant guilty based on the taped statement even
though it did not contain an express admission of guilt. He also believed that playing
the tape prior to trial would lessen its prejudicial impact. Additionally, Appellant claims
he was prejudiced by the trial court's refusal to allow him to play the tape during his
opening statement.
The trial court has broad discretion in overseeing voir dire . Woodall v.
Commonwealth , 63 S.W.3d 104, 118 (Ky. 2001). The purpose of voir dire is to
determine whether a juror's mind is initially free from bias . Shegog v. Commonwealth ,
142 S .W .3d 101, 110 (Ky. 2004). It is not a proper function of voir dire, however, to
have jurors indicate in advance or commit themselves to certain ideas and views before
examining the evidence . Woodall , 63 S .W .3d at 116. In seeking to play the tape to the
jury, Appellant attempted to secure improper commitments from jurors . We note that
Appellant does not argue that he otherwise was precluded from asking questions of the
panel or from exercising challenges against jurors who might have been biased against
his case. There was no error.
Likewise, the purpose of an opening statement is to explain to the jurors the
issues they will encounter. so that they may understand the evidence as it is introduced .
Brummitt v. Commonwealth, 357 S .W.2d 37, 41 (Ky. 1962) (quoting Lickliter v.
Commonwealth, 60 S .W .2d 355 (Ky. 1933)) ; RCr 9 .42. Appellant's admitted goal in
playing the taped statement - to diminish its prejudicial effect - exceeded this purpose.
Furthermore, Appellant's recorded statement amounts to testimony, and this Court has
previously determined that a witness's prerecorded testimony cannot be played during
opening statements . Fields v. Commonwealth , 12 S .W.3d 275, 281 (Ky. 2000) . There
was no error.
Motion for Continuance
Appellant next argues that the trial court erred in denying his motion for
continuance . Appellant had retained Dr. Richard A. Gardner to testify that Appellant
does not exhibit any psychological signs of pedophilia . Additionally, Dr. Gardner would
testify that masturbation is not a deviate sexual behavior indicative of any inclination to
commit a criminal sexual offense . The trial court scheduled a Daubert hearing on the
morning of trial, May 27, 2003, to determine the admissibility of Dr. Gardner's
testimony .
Unfortunately, Dr. Gardner became extremely ill in the days leading up to the trial
and died on May 25, 2003 . Appellant's counsel did not know of Dr. Gardner's death
when he appeared in court on May 27 for the Daubert hearing . He had been made
aware the previous day, however, that Dr. Gardner's illness prevented him from
testifying that day and accordingly moved for a continuance . To this motion, Appellant's
counsel attached an affidavit outlining Dr. Gardner's proposed testimony. During a
court recess, Appellant's counsel learned that Dr. Gardner had passed away. Defense
counsel renewed the motion for a continuance to allow him to secure another expert
who would offer similar testimony. The court held a hearing on Appellant's motion and
ultimately refused to grant a continuance . Appellant now argues that failure to grant his
motion for continuance denied him his constitutional right to present evidence to refute
the charges against him . Ky. Const . § 11 ; U .S. Const., Amends. VI, XIV. He also
argues that the court erred in not holding a Daubert hearing on the admissibility of Dr.
Gardner's testimony . Daubert v. Merrell Dow Pharm. . Inc . , 509 U .S . 579, 113 S . Ct.
2786, 125 L. Ed. 2d 469 (1993). We disagree .
At the outset, we determine that a Daubert hearing was held despite Appellant's
arguments to the contrary. In fact, the trial judge unequivocally indicated when the
hearing commenced : "We are'going to proceed with the Daubert hearing on the
Commonwealth's testimony and be subject to cross examination by the defense ." The
trial court then reviewed Dr. Gardner's lengthy affidavit, outlining his proposed
testimony, Dr. Gardner's lengthy report, and controlling case law. In essence, Dr.
Gardner's proposed testimony was that Appellant did not manifest the signs of
pedophlia and therefore was unlikely to have committed the crime . Relying especially
on this Court's decision in Tungate v. Commonwealth , 901 S .W .2d 41 (Ky. 1995), the
trial court concluded that Dr. Gardner's testimony was inadmissible because it lacked a
scientific basis, and because testimony as to whether Appellant was a pedophile was
not relevant to the question of his guilt of the crimes charged .
-9-
A trial court has "wide latitude in deciding how to test an expert's reliability and in
deciding whether or when special briefing or other proceedings . . . is needed to
investigate reliability." Dixon v. Commonwealth , 149 S .W.3d 426, 430 (Ky. 2004)
(emphasis in original) . The court may rule on the admissibility of the expert's testimony
when the trial record is "complete enough to measure the proffered testimony against
the proper standards of reliability and relevance ." Commonwealth v. Christie, 98
S.W.3d 485, 488 (Ky. 2002) (quoting Jahn v. Equine Services P.S .C . , 233 F.3d 382,
393 (6th Cir. 2000)). Usually, such a record will consist of "proposed expert's reports,
affidavits, deposition testimony, existing precedent, and the like ." Christie, 98 S .W.3d
at 488-89 .
In this case, the trial court had a sufficient record before it to conduct a Daubert
hearing and rule on the admissibility of Dr. Gardner's testimony. As is recommended in
Christie, the court examined an affidavit containing Dr. Gardner's proposed testimony,
considered Dr. Gardner's lengthy report, and looked to existing precedent in Tungate v.
Commonwealth , 901 S .W .2d 41 (Ky. 1995) . In Tungate , the trial court considered the
admissibility of testimony by the very same Dr. Gardner that the defendant was unlikely
to have committed a sexual crime against a minor because he did not have the
psychological profile of a pedophile . The court rejected this testimony because such
propensity testimony is an impermissible comment on a defendant's guilt or innocence.
Id . at 43 . Additionally, the court found that Dr. Gardner's testimony lacked a scientific
basis. Id . The trial judge in the present case was well aware of Tungate and its
implications as he considered the admissibility of Dr. Gardner's testimony . From the
substantial record before it, we believe that the trial court had sufficient evidence to
conduct a Daubert hearing .
-1 0-
This Court has previously indicated that delays in trial should only be granted
when "purposeful ." Snodgrass v. Commonwealth , 814 S.W .2d 579, 581 (Ky. 1991),
overruled on other grounds in Lawson v. Commonwealth , 53 S .W .3d 534 (Ky. 2001).
Granting a continuance to allow Appellant to secure a new expert witness who would
proffer similar testimony was unnecessary because Dr. Gardner's testimony was not
admissible . The decision to continue a trial rests in the sole discretion of the trial judge .
RCr 9.04; Williams v. Commonwealth , 644 S.W.2d 335 (Ky. 1982) . We find no error.
Motion for Directed Verdict
Appellant next argues that the trial court erred in denying his motion for a
directed verdict at the close of the Commonwealth's case, and at the close of all
evidence. He claims that J .S .'s testimony, which constituted the bulk of the evidence
against him, was not credible enough to prove his guilt beyond a reasonable doubt.
Appellant acknowledges that simple discrepancies and changes regarding minor
details of a child victim's testimony are matters of credibility to be assessed by the jury.
Appellant, however, argues that the quality and quantity of inconsistencies in J .S.'s
testimony rendered it completely incredible and insufficient to support a verdict of guilt.
We have reviewed J .S.'s testimony and examined the numerous portions to which
Appellant directs our attention. Without detailing every citation of inconsistency, it is
sufficient to state that J .S . gave testimony that conflicted with her prior statements to
Trooper Tapp and Ms . Murray, and that her testimony on the second day of trial
conflicted somewhat from her prior day's testimony .
In reviewing the denial of a motion for directed verdict, we must determine if
"under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.
Only then is the defendant entitled to a directed verdict of acquittal ." Commonwealth v.
Benham, 816 S.W .2d 186, 187 (Ky. 1991) . A rational trier of fact could have believed,
based on J .S .'s testimony, that Appellant had committed first-degree sexual abuse and
first-degree sodomy, as J .S . unequivocally identified Appellant as the perpetrator . In
cases where the parties essentially engage in a "swearing match," it is the jury's
responsibility to evaluate the credibility of the witnesses and give due weight to their
testimonies . Cobb v. Commonwealth , 105 S.W.3d 455, 458 (2003). Ultimately, it is the
jury's responsibility to evaluate the evidence before it and reach a verdict based on that
evidence . Morton v. Commonwealth , 817 S .W .2d 218 (Ky. 1991). Because the jury
had sufficient evidence to find Appellant guilty of the crimes charged beyond a
reasonable doubt, the trial court did not err in denying Appellant's motion for directed
verd ict.
Introduction of Posed Photograph
Appellant's final argument is that the trial court erred in precluding him from
introducing a posed photograph of him seated at a kitchen table where the alleged
sodomy took place. Appellant wanted to introduce this photograph to show that the
design of the table made it impossible for the sodomy to have occurred as alleged by
J .S. Appellant admits that it is not the same table under which the act allegedly
occurred, but claims its design is the same. The court refused to allow the introduction
of the photograph, noting that it was not "the exact same table."
We last considered the issue of posed photographs in Gorman v. Hunt, 19
S .W .3d 662 (Ky. 2000). The defendant in Gorman attempted to introduce a posed
photograph purporting to reconstruct an automobile accident . Id, at 665 . In holding that
posed photographs may sometimes be admissible, we encouraged trial courts to
carefully scrutinize posed photographs to prevent deception and misrepresentation . Id .
-1 2-
at 669 . The trial court holds broad discretion in accepting or rejecting posed
photographs. Id . at 667. Its decision will not be disturbed on appeal absent a clear
showing of abuse of discretion . Id . Especially in light of Appellant's admission that the
picture was of a different table, the trial court did not abuse its discretion by prohibiting
introduction of the photograph .
For the foregoing reasons, the judgment of the Bullitt Circuit Court is affirmed .
All concur.
COUNSEL FOR APPELLANT :
John K. Carter
P. O. Box 205
2311 South Highway 53
LaGrange, KY 40031
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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