Barnett v. Commonwealth

828 S.W.2d 361, 1992 Ky. LEXIS 61, 1992 WL 71099

• Court: Kentucky Supreme Court
• Decided: April 9, 1992
• Docket: 90-SC-926-MR
• Status: Published

Opinions

OPINION OF THE COURT

Appellant was convicted of first degree rape, sodomy, and sexual abuse of a minor less than twelve (12) years of age. He was sentenced to consecutive terms of imprisonment totalling sixty-five years. He appealed his conviction as a matter of right and we heard oral argument.

The issue properly expressed is whether appellant was denied a right to present a defense and consequently, a fair trial, when the trial court excluded evidence of prior sexual contact between the complaining witness and her brother without conducting any hearing to determine the relevance of such evidence.

Appellant’s conviction was as a result of alleged sexual contact with his minor, natural daughter. The Commonwealth offered testimony of the complaining witness, limited testimony of her brother which partially contradicted her testimony, and the testimony of an examining physician who testified to findings of chronic sexual contact and, without objection, identified appellant as the perpetrator of such contact. Despite the existence of several handwritten notes by the victim and her brother which suggested the existence of a sexual relationship between them, and statements by the victim identifying her brother as one with whom she had sexual contact, the trial court denied appellant any right to cross-examine the complaining witness or her brother as to their possible sexual contact. From the record, it appears that appellant’s counsel erroneously conceded that the Rape Shield Statute excluded such evidence.

The Rape Shield Statute contains a general prohibition against introduction by a defendant of any reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct or habits. KRS 510.145(2). However, subsection (3) allows the introduction of evidence of the complaining witnesses’ prior sexual conduct or habits with parties other than the defendant if that evidence directly pertains to the act or acts on which the prosecution is based and is found to be relevant. KRS 510.145(3). Subsections (3)(a) and (b) mandate such a relevancy determination and prescribe the method. KRS 510.145(3)(a).

The purpose of the Rape Shield Statute in generally prohibiting evidence of prior sexual conduct of a complaining witness is to insure that that witness does not become the party on trial through the admission of evidence that is neither material nor relevant to the charge made. The statute does not prohibit the introduction of relevant, probative evidence at trial, if the evidence of prior sexual conduct directly pertains to the crime with which the defendant is charged. KRS 510.145; Bixler v. Commonwealth, Ky.App., 712 S.W.2d 366 (1986). In the case of a sexually active adult who claims to be the victim of rape, medical findings that she frequently engages in intercourse would not be probative of the crime charged. However, in the case of a female child who is presumed not to be sexually active, and with whom any sexual contact is prohibited, a medical finding of frequent sexual activity establishes the relevance of evidence that the perpetrator is one other than the person charged.

The evidence of prior sexual contact between the victim and her brother was placed in the record by avowal as a result of the trial court’s ruling that the evidence was precluded by the Rape Shield Statute. Appellant’s counsel claims, and it is uncon-troverted by the appellee, that all of this evidence came into his possession less than two days before the trial, making it impossible for him to timely move for a hearing to determine its admissibility. KRS 510.-145(3) and (4). The notice statute provides, however, for admission of such evidence if cause is shown. Id. As appellant failed to raise the possible applicability of the exception and generally conceded to the trial court that the evidence was precluded by the statute, no hearing on admissibility of the evidence was held. Reluctantly, we apply RCr 10.26 on grounds of manifest injustice.

Omission of the evidence concerning the ongoing sexual activity between the complaining witness and her brother was devastating to appellant in light of the testimony of the examining physician who expressed findings of chronic sexual contact and, without objection, identified appellant as the guilty party. The possibility that the victim had engaged in ongoing sexual conduct with her sibling was not revealed to the physician during his examination and interview of the victim. This revelation may have caused the physician to qualify or omit his branding of appellant as the assailant.

Upon review of the arguments of counsel, their briefs, and the video transcript of the trial, it is apparent that appellant was convicted based on the child’s testimony and the corroborating medical testimony of the examining physician. Appellant was required to defend himself without the benefit of evidence which could have explained the expert’s physical findings. The preclusion of the evidence of the victim’s sexual contact with her brother was tantamount to a denial of appellant’s right to present a defense. Accordingly, the conviction is reversed and this cause remanded for a new trial not inconsistent herewith.

STEPHENS, C.J., and COMBS, LAMBERT, LEIBSON and REYNOLDS, JJ., concur. WINTERSHEIMER, J., dissents by separate opinion in which SPAIN, J., joins.