Angel Torres III v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: April 18, 2019
• Docket: 2018-SC-0075
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2019 NOT TO BE PUBLISHED

2018-SC-0000075-MR

ANGEL TORRES, III APPELLANT

ON APPEAL FROM DAVIESS CIRCUIT COURT V. HONORABLE JOSEPH W. CASTLEN III, JUDGE NO. 16-CR-00446

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A circuit court jury found Angel Torres, III guilty of two counts of first-

degree sodomy and two counts of first-degree sexual abuse, for which he

received a sentence of 50 years’ imprisonment. Torres now appeals the

resulting judgment to this Court as a matter of right,1 raising three issues for

review. Finding no error on the part of the trial court, we affirm the judgment.

I. BACKGROUND.

The victim, a female under the age of 12 at the time of the commission of

the crimes, described at trial Torres’s acts of abuse. The victim lived with

Torres in his home, and Torres would regularly look in on her while she

showered. One time, after she finished showering, Torres had the victim lie on

1 Ky. Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing a sentence of . . . imprisonment for twenty years or more shall be taken directly to the Supreme Court.”). a wicker basket. He opened her legs and rubbed her vagina with his finger,

stating he was looking for an infection. From our review of the victim’s

testimony, she testified about this having occurred more than once. The victim

also testified to a time when Torres placed his mouth and tongue on her vagina

while she sat on the toilet in the bathroom.

In Torres’s bedroom, the victim described a game that he would play with

her in which he blindfolded her, place items in her hand or mouth, and had

her guess what those items were. On one occasion, Torres placed what she

believed to be his penis in her hand. On another occasion, Torres placed what

she believed to be his penis inside her mouth.

The victim’s sister testified that while she never personally witnessed any

of the alleged events, the victim told her about them after she and her sister

moved out of the Torres residence. The victim’s sister then reported to Torres’s

wife that Torres was acting inappropriately toward the victim, although the

substance of that conversation is in dispute. At the very least, Torres’s wife

knew that Torres was teaching the victim how to “French kiss,” but she never

contacted authorities due to the absence of proof.

A few years elapsed before the victim and her sister contacted authorities

about Torres’s sexual contact. The contact was prompted by the appearance on

the victim’s phone of a video of a man masturbating. The two thought the man

in the video was Torres because the shower curtain in the background of the

video resembled the one at the Torres residence. This led to an investigation

2 and ultimately to Torres’s indictment by the grand jury and conviction on all

charges. This appeal followed.

II. ANALYSIS A. The trial court did not err in denying Torres’s motion for directed verdict.

Torres first argues that the trial court erred when it denied his motion for

directed verdict on all charges. That this issue is preserved for our review is

undisputed. “On appellate review, the test of a directed verdict is, if under the

evidence as a whole, it would be clearly unreasonable for the jury to find guilt,

only then is the defendant entitled to a directed verdict of acquittal.”2

As in many cases involving sexual offenses committed against a child,

the only real evidence supporting Torres’s convictions is the testimony of the

victim describing the offenses. The victim provided detailed testimony on the

four incidents giving rise to Torres’s charges. At the time of her testimony, the

victim was 15-years-old. When the incidents allegedly occurred, she was

between the ages of 8 and 10. The victim also testified that Torres was teaching

her how to “French kiss.” She told her sister about this, who relayed some of

this information to Torres’s wife.

Torres’s defense strategy was to attack the victim’s credibility. The

defense called Torres’s wife as a witness, eliciting testimony from her that the

2 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3, 4-5 (Ky. 1983)).

3 victim “had a bad habit of lying to get out of trouble.” Torres’s wife testified that

the victim would tell her “things about [the victim’s] siblings that would make

[Torres’s spouse] mad at the others.”

The defense also attacked the victim’s memory concerning other

individuals who lived in the Torres household at the time when she and her

sister were there. Those same individuals testified for the defense that with

eleven people living at the Torreses’ one-bathroom residence during the period

in question, it would have been nearly impossible for these sexual encounters

to have occurred without someone knowing about them.

The defense attacked the victim’s recollection of events, specifically, her

inability to recall certain details about the events. Torres argues that this

inability to recall certain details specifically discredits the victim’s belief that

Torres’s penis, and not another item, was in her hand and mouth during the

blindfold game. Torres further points to the trial court’s acknowledgement of

inconsistencies in the victim’s testimony, and yet it denied the motion for

directed verdict.

The defense further sought to show that the victim and her sister

brought these allegations out of revenge for Torres having walked out on them

during their time at the Torres residence. Moreover, the defense attempted to

characterize the authorities’ investigation into the commission of the offenses

as “shoddy.” Finally, Torres himself testified, completely denying the charges.

4 Our role as a reviewing court is to determine from the trial record “if

under the evidence as a whole, it would be clearly unreasonable for a jury to

find guilt[.]”3 Here, we cannot find this to be the case. The evidence adduced at

trial included the victim’s detailed testimony about Torres’s committing the

four offenses of which he was charged. Although the defense attacked the

victim’s credibility, “[a]ssessing the credibility of a witness and the weight given

to her testimony rests ‘within the unique province of the jury[.]”4 “The . . . court

acting as an appellate court cannot. . . substitute its judgment as to the

credibility of a witness for that of . . . the jury.”5

And as much as Torres attacks the credibility of the victim, Torres’s

testimony had credibility gaps as well. For example, in his initial interview with

investigators, Torres denied having been confronted by his ex-spouse about

kissing the victim on the month, but then later acknowledged that he was so

confronted.

While Torres offered evidence to support his case, under the totality of

the evidence adduced at trial, including the victim’s detailed testimony

regarding the four charges of which the jury convicted Torres, we cannot say

3 Id. (emphasis added). 4 Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017) (quoting McDaniel v. Commonwealth, 415 S.W,3d 643, 654 (Ky. 2013)). 5 Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994) (quoting Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987)).

5 that the jury’s finding of guilty was “clearly unreasonable.” As such, the trial

court did not err in denying Torres’s motion for directed verdict.

B. The trial court did not err in admitting evidence of other acts of abuse committed by Torres against the victim.

Torres challenges the trial court’s grant of the Commonwealth’s motion

to introduce “evidence involving uncharged additional sexual contact between

the defendant and the sole victim in the above styled action.” That this issue is

preserved for our review is undisputed.

The Commonwealth requested that the trial court allow it to introduce in

its case-in-chief evidence of other uncharged sexual offenses committed by

Torres against the victim. The trial court granted the Commonwealth’s motion,

finding the evidence to be admissible under Kentucky Rules of Evidence

(“KRE”) 404(b). Torres now challenges that ruling as error.

We dealt with this exact issue in Noel v. Commonwealth-.

Appellant asserts that admission of [the victim’s] testimony that [the defendant] had sexually abused her “more than one time” violated the KRE 404(b) proscription against admission of evidence of other crimes, wrongs, or acts. However, this testimony falls within the exceptions for evidence offered to prove intent, plan, or absence of mistake of accident. We further note that evidence of similar acts perpetrated against the same victim are almost always admissible for those reasons.6

Torres mainly argues that the trial court should have excluded this

evidence according to Kentucky’s evidentiary rules regarding relevancy. “All

6 76 S.W.3d 923, 931 (Ky. 2002) (citing Price v. Commonwealth, 31 S.W.3d 885, 888 n.4 (Ky. 2000)).

6 relevant evidence is admissible, except as otherwise provided[.]”7 “‘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.”8 “Although 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,

or by considerations of undue delay, or needless presentation of cumulative

evidence.”9 “The inclusionary thrust of the law of evidence is powerful,

unmistakable, and undeniable, one that strongly tilts outcomes toward

admission of evidence rather than exclusion.”10 “The language of KRE 403 is

carefully calculated to leave trial judges with extraordinary discretion in the

application and use of [KRE 403].”11 As Professor Lawson notes, the application

of KRE 401, 402, and 403 “embraces not just a tilt toward admission over

exclusion but a very powerful tilt in that direction.”12

7 KRE 402. 8 KRE 401. 9 KRE 403. 10 Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.05[2][b] (5th ed. 2013) (citing O’Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1967)). 11 Lawson, supra, note 10 at § 2.15[2][b]. 12 Id.

7 “The standard of review of an evidentiary ruling is abuse of discretion.”13

“The test for abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”14

Simply put, the trial court did not abuse its discretion in allowing the

Commonwealth the opportunity to introduce evidence of other allegations of

sexual misconduct by Torres against the victim. Specifically, Torres challenges

the admission of 1) testimony regarding Torres’s kissing of the victim and 2)

testimony that the victim sat on Torres’s lap. But this evidence is probative to

demonstrate the victim’s and Torres’s relationship and how that relationship

progressed. That probative value cannot be outweighed by any prejudice that

Torres has asserted, namely, having simply recited the language of the rule,

KRE 403. Finally, Torres does not articulate how the purported evidence that

the trial court allowed runs afoul of KRE 404(b), once again, simply making the

conclusory assertion that it does. And we see no reason to question the trial

court’s admission of this evidence, particularly, because we find no reason to

distinguish this case from the rule in Noel.

Torres also takes issue with the lack of specificity in the record regarding

the admission of other uncharged alleged sexual offenses committed by Torres

against the victim. In fact, Torres has filed a separate motion with this Court,

13 Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). 14 Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

8 asking us to “order the [Commonwealth] to produce for the record what the

uncharged and unproven grand jury allegations were.” Torres essentially

argues that the Commonwealth should have, in its original motion with the

trial court, identified the specific allegations of sexual misconduct that it was

seeking to introduce into evidence at trial. Because the Commonwealth did not

do this, Torres argues, “[i]t is impossible for [Torres] to prove the length and

mountainous prejudicial effect the uncharged grand jury allegations had on his

defense without ascertaining with certainty what they were.”15

But the Commonwealth’s motion for leave to present KRE 404(b)

evidence simply provided Torres with notice that the Commonwealth would

attempt to introduce in its case-in-chief evidence of other instances of sexual

misconduct by Torres against the victim. And everything that the

Commonwealth presented by way of evidence at trial, including evidence of

these other uncharged acts of sexual abuse, is contained in the record of the

trial proceeding. Torres’s argument here is pointless because all evidence of

sexual misconduct that the jury heard is preserved in the record of the trial

proceeding. And in our review of the victim’s testimony, it appears that she

testified that Torres inappropriately touched her vagina multiple times.

But because Torres has not specifically identified the acts that he

believes should not have been admitted into evidence, apart from kissing the

15 (emphasis in original).

9 victim and having her sit on his lap, we have nothing to review for trial court

error. At most, Torres’s failure to identify any specific acts admitted into

evidence to which he objects constrains us to characterize any alleged trial

court error here as nothing more than harmless error because Torres has not

articulated any identifiable prejudice.16

As such, the trial court did not err in granting the Commonwealth’s

motion, allowing the Commonwealth to introduce into evidence other acts of

sexual misconduct committed by Torres against the victim.

C. The trial court did not err in granting the Commonwealth’s motion in limine.

Torres alleges error in the trial court’s grant of the Commonwealth’s

motion in limine to exclude from admission into evidence a school incident

report in which the victim claimed that a janitor gave her bruises and may have

accidentally touched her breasts. That this issue is preserved for our review is

undisputed. We review this error for an abuse of discretion.

Torres asserts that he would like to argue to this Court, using the school

incident report, that the victim had a history of making false accusations and

to demonstrate the victim’s attention-seeking behavior.17 But, Torres argues,

16 “No error in . . . the admission ... of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.” Kentucky Rules of Criminal Procedure (“RCr”) 9.24. 17 During the hearing and now on appeal, Torres makes no argument that he sought to introduce this report to prove specifically that the victim has made false accusations

10 because a copy of the school incident report cannot be found in the record, he

is unable to view it to form an argument on this point.

The trial court held a hearing to determine whether this report could be

admitted into evidence. The Commonwealth read some or all—it is unclear

which—of the report to the trial court. The trial court itself examined a copy of

the report, first commenting that the report was “a bit remote,” then finding

that the report did not evidence anything that was “clearly false.” The trial

court granted the Commonwealth’s motion in limine to exclude the report from

admission into evidence at trial. During the hearing, the report itself was

allowed to be placed into the record as a sealed defense exhibit. But the report

is not in the record on appeal.

This Court has made clear “that the onus should lie upon the appellant

to see that [the] circuit court clerk includes in the appellate record so much of

the trial record leading up to and including the judgment as is necessary to an

adequate review.”18 “[W]e have consistently and repeatedly held that it is an

appellant’s responsibility to ensure that the record contains all of the material

necessary for an appellate court to rule upon all the issues raised.”19 “And we

regarding the commission of sexual offenses against her, which would be governed by KRE 412 and this Court’s decision in Dennis v. Commonwealth, 306 S.W.3d 466 (Ky. 2010). 18 Fanelli v. Commonwealth, 423 S.W.2d 255, 257-58 (Ky. 1968). Clark v. Commonwealth, 223 S.W.3d 90, 102 (Ky. 2007) (citing Commonwealth v. 19 Thompson, 697 S.W.2d 143 (Ky. 1985); Fanelli, 423 S.W.2d at 255).

11 are required to assume that any portion of the record not supplied to us

supports the decision of the trial court.”20

Although the Commonwealth read some of the report into the record

during the trial court’s hearing, without viewing the actual report itself, we are

unable to determine if the report should have been admitted. We have no way

of confirming whether the entirety of the substance of the report was read into

the record by the Commonwealth or if either party is mischaracterizing the

report in any way. We note that the record shows that it was Torres who was in

possession of the report and who sought to place it into the record. Because

Torres, as the appellant, did not ensure an adequate record for our review, we

decline to speculate about whether the trial court abused its discretion in

excluding from evidence at trial the school-incident report.

Even if we assume that the report supports Torres’s argument—that the

victim tends to make false accusations and that she exhibits attention-seeking

behavior—Torres has not articulated how the report itself would be admissible

in the face of KRE 608(b): “Specific instances of the conduct of a witness, for

the purpose of attacking or supporting the witness’s credibility . . . may not be

20 Clark, 223 S.W.3d at 102 (citing Thompson, 697 S.W.2d at 145).

12 proved by extrinsic evidence.” We find no reason to question the trial court’s

exclusion of the school incident report.21

III. CONCLUSION.

Finding no error on the part of the trial court, we affirm the judgment.

Minton, C.J., Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.

All concur. Buckingham, J., not sitting

COUNSEL FOR APPELLANT:

Dennis Keith Wilcutt II Smith & Wilcutt, LLC

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

William Robert Long Jr. Assistant Attorney General

21 Torres also mentioned the words “cumulative error” in his brief as giving rise to reversible error. However, because we find no error whatsoever on the part of the trial court, cumulative error cannot, by definition, exist in this case.