IMPORTANT NOTICE NOT TO BE PUBLISH ED 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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.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 : NOVEMBER 26, 2008 PUBLISHED
sUyrrUtr Courf of 2007-SC-000189-MR
HERSHALL NALL, SR. APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KELLY M. EASTON, JUDGE NO. 05-CR-00361
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Hershall Nall appeals from the judgment of conviction and sentence
entered after a circuit court jury convicted him of first-degree sexual abuse, ten
counts of first-degree rape, and eleven counts of incest.
Nall's appeal challenges the sufficiency of the evidence to support these
convictions, and he argues that impermissible hearsay and evidence of
uncharged crimes tainted the trial proceeding . He further asserts that the jury
instructions did not require a unanimous verdict. He claims that he was
prejudiced by not obtaining a bill of particulars . He argues he should have
been allowed to call the prosecutor to testify about his interview of a witness.
Nall argues the prosecutor impermissibly commented on the consequences of
the jury's verdict. Finally, he contends that the jury verdict must be reversed because cumulative error at trial contributed to his conviction . Upon review of
his trial, we affirm Nall's'convictions .
1 . EVIDENCE FROM THE COMPLAINING WITNESS .
The alleged victim was Nall's daughter, P.N.A., who was an adult at the
time of trial. She testified at trial that her father had repeatedly raped and
sexually abused her beginning when she was five years old and continuing
until she left her parents' household on the night of her high school
graduation . So the evidence at trial consisted of descriptions of events that
allegedly occurred decades before the trial.
P.N.A. testified that her mother did not believe her when, as a young
child, she reported the abuse to her. P.N .A. claime d that she did not speak of
the abuse again as a child until telling some high school friends, one of whom
reported it to a high school counselor. The counselor then spoke to P.N .A.
about the allegations . But after P.N.A. and her three younger sisters were
removed from the family home for only one day as a result of that disclosure,
they were returned when P.N .A.'s sisters refuted all claims of abuse. The
sisters said then that P.N.A. fabricated the allegations based on having read a
"true crime" magazine .
P.N .A. alleged that the abuse took place throughout her childhood and,
since the family moved frequently, at several different residences . P.N.A.
testified that the abuse, most often involving vaginal intercourse, occurred
whenever her mother was out of the house. She testified that her father would
usually call her to his bedroom. However, she testified that the abuse also occurred once in the basement of one home, and in the barn at their last
residence. She testified that as she got older she often tried to fight off her
father's advances and at those times he would send her out and tell her to send
in one of her three younger sisters . P.N .A.'s three sisters testified at trial and
denied that their father sexually abused them; they testified that they never
saw their father act inappropriately in a sexual manner toward P.N.A.
11. EVIDENCE OF PRIOR BAD ACTS NOT IMPROPERLY ADMITTED .
Nall's first allegation of error is that the trial court allowed improper
evidence of other crimes, wrongs or acts under Kentucky Rule of Evidence
(KRE) 404(b) . He first argues that the court allowed the introduction of some
KRE 404(b) evidence despite the Commonwealth's failure to disclose it under
the notification requirement of KRE 404(c) . We conclude, however, that the
evidence Nall complains of was not KRE 404(b) evidence.
Testimony was admitted from a woman, Lisa Campbell, who had been a
friend of the Nall girls . She testified that once when she was spending the
night with them, their father summoned one of P.N .A.'s sisters to go with him
out to the barn to feed the animals . She testified that when the sister
returned, she was upset and crying . The witness testified that she did not see
what happened in the barn and did not know why she was crying .
The Commonwealth had no responsibility to report this as KRE 404(b)
evidence. The incident described does not bring up a prior crime, wrong, or act
by the defendant as described in the Rule. Although it is not necessary that
the KRE 404(b) evidence consist of a crime, it must relate to some wrong or act from which the person offering the statement seeks to show action in
conformity with it at trial as proof of character. As pointed out in cross-
examination, there was no proof that Nall had done anything wrong on the
evening testified about, and the incident was not therefore usable as evidence
of character. The Commonwealth asserted at trial that the evidence was
relevant to show that Nall was capable of being alone with the children in the
barn. Since we conclude that it was reasonable that the trial court and the
Commonwealth did not regard this as KRE 404(b) testimony, we agree that
notice was not required for this testimony; and it was properly allowed by the
trial court.
Next, Nall argues that the other bad acts evidence was improperly
admitted because it did not meet the established requirement that KRE 404(b)
evidence involving sexual offenses be so identical as to constitute a signature
offense. KRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show conformity
therewith, but may be admitted if offered for another valid purpose. Other
purposes noted in the rule include "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident," and
the list is illustrative rather than exhaustive.' Evidence of prior sexual acts
may also be used to show a "modus operandi." But when offered for that
purpose, we have imposed the further requirement that the facts surrounding
them be so strikingly similar as to show that the acts were committed by the
1 Dickerson v. Commonwealth, 174 S.W.3d 451, 468 (Ky. 2005). same person and the acts were accompanied by the same Tens rea. 2 Because
evidence of a defendant's prior bad acts is highly prejudicial, we construe
KRE 404(b) as exclusionary in nature . 3
The KRE 404(b) evidence introduced by the Commonwealth consisted of
two incidents alleged by female relatives of Nall occurring in his bedroom, and
a third incident involving Nall's son. We first assess the evidence from the two
females. A pertinent analysis of other bad acts evidence includes "[whhether
there exist common facts between the acts . . . not whether there was common
criminality."4 The first of these witnesses was T.T., Nall's niece . She testified
that she was at least 8 or 9 when she visited the Nalls with her family during a
summer vacation. She testified that Nall was the only adult in the house since
the other adults had gone to play bingo . Nall was supposed to take the
children roller skating. However, he told the children that they might not get to
go skating, and that he wanted to talk to them. He asked T.T. to come into his
bedroom. He told her to lie on the bed and she did . T.T. passed out. When
she woke, she testified that she was hurting and had blood "down there," as if
someone had stuck something inside her. One of F.N.A.'s sisters told her to
use one of their pads for the bleeding. T.T. said the sister also told her not to
worry about it and indicated that this had happened before. She said they did
go skating, and she remembered hurting for most of the night.
Martin v. Commonwealth, 170 S.W.3d 374, 380 (Ky. 2005) . Commonwealth v. Buford, 197 S.W.3d 66, 70 (Ky. 2006) . Martin, 170 S.W.3d at 380 . The second female, witness was L.T ., who testified that Nall was her
father's first cousin . She was 44 at the time of trial . She testified that when
she was eight to ten years old she went to the Nalls'house. She testified that
no other adults were in the house, and Mrs. Nall had gone to play bingo. She
testified that Nall invited her into the bedroom because he wanted to show her
something on the television . She said that the other children were in the front
room. Once in the bedroom, she testified that Nall tossed her onto the bed a
few times and began wrestling around with her. She testified that Nall pushed
her dress up and was tickling her, and then went on to try to pull her
underwear down. Although he was still tickling her, she knew that he should
not be pulling on her underwear; and she felt he was tickling her farther down
than he should have . He also rubbed her chest . She said she did not feel right
or safe and told him to stop. She said she started kicking him, as well. Finally
when she threatened to tell her father, Nall stopped.
We find these events to have a noteworthy similarity . In both cases, the
witnesses were young girls of a similar age, which was also an age that
matched that of the victim during her abuse . These females were relatives of
Nall. Nall was able to isolate them at his house when his wife and all other
adults had gone out for the evening .5 In each case, he brought them into his
bedroom, which was a place that he also took P.N.A. For T.T. as well as P.N.A .,
5 Nall alleges the fact that he was alone with the victims could not be a factor because this will always be the case. Sexual crimes may be perpetrated with others present or nearby . See, e.g. Commonwealth V. English, 993 S .W.2d 941 (Ky. 1999) (each incident occurred while the defendant's wife was also in the home) . the abuse included vaginal penetration. We do not believe that the incident
with L.T. was required to be excluded because she did not experience that
degree of abuse from Nall. It was implicit in her testimony that Nall would
have continued his mistreatment but for her threat to tell her father. There is
sufficient similarity in the episodes to be striking, and no requirement that the
episodes reflect the same consequences for each child . Therefore, we find no
abuse of discretion in the court's admission of the testimony of prior bad acts
from these two witnesses.
We next consider separately the allegation as to H.N., Son of Nall. Nall
points out differences in the evidence from H .N . since he is male, and the act
described was oral sex. The trial court found sufficient similarity with P.N .A.'s
allegations because both were Nall's biological children and because P.N.A.
alleged Nall at times forced her to perform oral sex before vaginal intercourse.
H.N . was a hostile witness who refused to testify. Although he took the
stand, he would not testify to what Nall did. He was finally impeached with
evidence that he had testified once before in a separate trial that his father
abused him. No details came out about the abuse from H.N., although the
Commonwealth's Attorney referred to H.N.'s earlier testimony in closing
argument, and in so doing provided details from it to assert a pattern of abuse.
We believe this incident does not bear the striking similarity of the other
incidents necessary to be admitted as a prior bad act. Here, the incident
involved only the same act perpetrated on the victim, P.N .A., and the same
familial relationship, but no other striking similarities . Of course, there was very little testimony from which to determine factual similarities . Although we
find error in its admission, we believe nevertheless that it was harmless
because H .N . provided no details and essentially provided no testimony against
his father other than a begrudging acknowledgment that he had testified
against him before .6
There is no reversible error in the evidentiary ruling of a court unless it is
determined that a substantial right of the party is affected . KRE 103(a) . An
error "is harmless if there is no reasonable possibility that it contributed to the
conviction ."7 Foremost, there was extensive evidence provided by the victim, as
well as evidence from P.N.A.'s cousin Linda Louden that she observed Nall
scuffling with P .N.A . in the barn and that he had is pants down. Additionally,
there was ample other bad acts evidence that did bear a striking similarity .
Given all of the above, we cannot say that the limited information provided
through H.N. as a witness was prejudicial to Nall's substantial rights. So we
regard the admission of this testimony as harmless error.
III . NO IMPROPER HEARSAY EVIDENCE ADMITTED .
Nall argues that testimony from P.N .A.'s high school counselor was
hearsaj% 8 TP.N.A .'s counselor, Ms. Thro, testified that one of P.N.A.'s high
school classmates, Debbie Lyman, came to her and told her she believed P.N .A .
was being abused by a family member. The counselor then spoke with P.N.A.
6 In fact, Nall, in his Brief to this Court, acknowledges that: "As to [H.N.s] testimony, there was little that was actually admitted, given his reluctance to testify." 7 Anderson v. Commonwealth, 231 S.W.3d 117,122 (Ky. 2007) . about what was happening in her home; and the counselor contacted social
services, which began an investigation .
Nall objected to Ms. Thro's repeating statements made by P .N .A.'s friend The on the ground of hearsay. trial court admonished the jury that it could
consider the hearsay statements only as they explained actions taken by
Ms. Thro, and not for the proof of the matter considered .
Nall argues on appeal that the actions taken by Ms . Thro were not an
issue in the case . The Commonwealth claims that because of the lapse of time
it was important to know that P.N.A. reported the allegations earlier. While we
agree with Nall that the actions of Ms . Thro, were not an issue, the fact that the
allegations came to light earlier was made an issue in the case by Nall's
defense. Thus, there was no error in allowing this testimony since it was
nonhearsay. Ms. Lyman's statements were not offered for the truth of the
matter asserted, but to show that the allegations about the offenses were made
at an earlier time . Thus, the trial court correctly allowed it because it fit within
the verbal act doctrine, which provides that statements are not hearsay
evidence when they are not admitted for the purpose of proving the truth of
what was said, but for the purpose of describing the relevant details of what
8 Specifically, Nall alleges that the testimony comprised "investigative hearsay." We find this to be a misnomer, since the concept of investigative hearsay derived from an attempt to create a hearsay exception permitting law enforcement officers to testify to the results of their investigations . That erroneous basis for introducing hearsay evidence was rejected in a line of cases, starting with Sanborn v. Commonwealth, 754 S .W.2d 534 (Ky. 1988), none of which involved counselors or social workers. took place.9 Additionally, we note that the jury was actually admonished not to
use the statement for the truth of the matter asserted, and juries are presumed
to follow the admonitions given to them from the bench . 10
On appeal, Nall also argues that Ms. Thro repeated statements from
P.N.A . But Nall does not identify any out-of-court statement by P.N .A . that
Ms. Thro repeated during her testimony. The Commonwealth's Attorney was
careful not to ask Ms . Thro what P .N.A. said. In fact, Ms. Thro testified only
that P.N.A. told her what was happening in her home . Although we question
the preservation of the alleged error, we will address the allegation of hearsay.
We observe no error in admitting Ms. Thro's testimony regarding any
,statements P.N.A. made to her, because it was admissible under a hearsay
exception. An appellate court may affirm a trial court for a correct result under
a theory not relied upon by the trial court." Ms. Thro's testimony was properly
admitted to show that P.N.A.'s testimony! was not a recent fabrication or the
product of improper motive. KRE 801A(a)(2) provides:
Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is:
(2) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive[.]
Brewer v. Commonwealth, 206 S.W.3d 343, 351 (Ky. 2006) (citing Preston v. Commonwealth , 406 S .W.2d 398, 401 (Ky.1966)) . to Mills v. Commonwealth, 996 S.W .2d 473, 485 (Ky.1999) . i l Commonwealth Natural Res. and Envtl. Prot. Cabinet v. Neace, 14 S.W.3d 15, 20 (Ky. 2000) .
10 The theory of the e was that the declarant, P.N .A ., had an improper
motive to make these charges as an adult because she was retaliating against
her family after a family fight that took place in Texas and because she was
trying to get money from her father. Evidence from Ms. Thro that P .N.A . made
the same charges as a teenager served to rebut that accusation . Where a
witness has been assailed on the ground that the story is a recent fabrication
or that she has some motive for testifying falsely, it is permissible to show that
she gave a similar account when the motive did not exist, before the effect of
such an account could be foreseen, or when the motive or interest would have
induced a different statement. 12 P.N.A. testified at trial and was asked about
her statements to Ms. Thro.
Nall argues that this was not a proper KRE 801(a)(2) admission because
it was introduced in the Commonwealth's case-in-chief, not after the victim's
credibility had been attacked as to recent fabrication or improper motive.
While it technically may have been out of order, error in the timing of the
admission amounts to harmless error for such a statement. 13 P.N.A . was
attacked as having an improper motive for testifying against her father, and so
any testimony about her statements was admissible under that hearsay
exception.
12 Smith y. Commonwealth, 920 S .W.2d 514, 517 (Ky . 1995) (quoting Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630, 633 (1925)) . 13 Fairrow v. Commonwealth, 175 EMU 601, 606 (Ky. 200y ; Vend v. Commonwealth, 738 S .W.2d 818, 821 (Ky. 1987) . IV. NALL WAIVED OBJECTION TO LACK OF A BILL OF PARTICULARS .
Nall argued that he was not given a requested bill of particulars, which
prejudiced his defense because the indictment was too vague for him to
prepare a defense to the variety of charges . The Commonwealth correctly
asserts that the claim of error is waived by the fact that Nall did not object to
the Commonwealth's failure to provide the bill of particulars before trial . 14
Nall's last request for a bill of particulars occurred nine months before the trial
commenced when he asked for a continuance of the trial because of the failure
to obtain discovery and a bill of particulars from the Commonwealth . The
Commonwealth responded that it had informed Nall in open court that "the
Commonwealth's response to the Bill of Particulars was basically that there is
no additional information other than what has been provided or as set out in
the indictment ." The trial court granted Nall's request and postponed the trial
for nine months . Because Nall made no further pursuit of a bill of particulars,
we must conclude that he was satisfied with the response and the
postponement of the earlier trial date . Nall waived this claim of error by not
pursuing it after the postponement of the initial trial date.
IV. NO ERROR IN UNANIMOUS VERDICT AND SUFFICIENCY OF THE EVIDENCE .
Nall argues that the jury instructions did not allow for a unanimous
verdict because they did not describe the incidents sufficiently to ensure that
14 Hampton y. Commonwealth, 666 S.W.2d 737, 740 (Ky. 1984) .
12 the jury's verdicts conformed to the proof. We find no error in the instructions
on this basis. Nall did not make a specific argument below that the
instructions did not allow for a unanimous verdict. No claimed error in the
giving of instructions can be raised on appeal unless it was preserved by
contemporaneous objection. 15 In addition, Nall agreed to the wording of the
instructions, particularly the separate designations of the barn and tobacco
barn at the Rhudes Creek address, and of the residence at Hawkins Drive and
the second residence at Hawkins Drive as a site of some of the counts .
Appellant further argues that the evidence was insufficient to support the
convictions and a directed verdict should have been granted. On appellate
review, the test of a directed verdict is, 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 . 16 We adhere to the
principle that proof of the precise dates on which offenses were committed is
not required of a child sexual abuse victim where the evidence is "ample to
separately identify the various offenses charged ." 17 Moreover, we have also
affirmed that failure to prove a specific date of an offense is not significant
unless time is a "material ingredient of the offense." 18 Here, the evidence with
regard to each of the charges was sufficient to show that at least one incident
1.5 Kentucky Rules of Criminal Procedure (RCr) 9.54(2) ; Commonwealth v. Duke, 750 S.W.2d 432 (Ky. 1988). 16 Commonwealth v. Benham, 816 &Md 186, 187 (Ky. 199Y . 17 Hampton, 666 S.W.2d at 740 . See also Garrett v Commonwealth, . 48 S.W.3d 6, 10 (Ky. 2001) . 18 Stringer v. Commonwealth, 956 S.W.2d 883, 885-86 (Ky . 1997) .
13 of the particular offense occurred within the time period and at the location
stated in each instruction . The victim stated that the offenses were ongoing,
but she was also able to relate them to different locations and events through
her life, such as her appendix operation, the family's moving, and what grades
she was attending . We find sufficient evidence on each of the counts. In
addition, the indictment set forth sufficient specific facts so that Nall could
plead a former conviction in the event a future prosecution for the same offense
was ever brought against him.
. Finally, Nall complains that forcible compulsion was not shown as to
every first-degree rape charge . P.N .A. testified that her father would hit and his beat her if she resisted sexual advances, and also threatened to beat her if
she told anyone . Forcible compulsion includes not only physical force but the
threat of physical force that places a person in fear of physical injury to the self
or to others . 1 9 P.N.A. testified to fear of beatings and also of her father sending
her out and requiring her to send in one of her younger sisters if she did not
submit. We believe sufficient forcible compulsion was shown to support the
jury's verdict.
Whether the issue is viewed as one of insufficient evidence, or double
jeopardy, or denial of a unanimous verdict, when multiple offenses are charged
in a single indictment, the Commonwealth must introduce evidence sufficient
to prove each offense and to differentiate each count from the others, and the
19 Kentucky Revised Statutes (KRS) 510.010(2) .
14 jury must be separately instructed on each charged offense.20 Our review of
the evidence and the instructions convinces us that the standard was met in
this case.
V. PROSECUTOR AS A WITNESS CLAIM UNPRESERVE,D FOR REVIEW.
Nall argues that he should have been permitted to call the prosecutor to
testify about his interview of a witness because of variance in the statement the
prosecutor took from the witness and her testi ony at trial. Nall fails to
identify where in the record he made a request to call the prosecutor, nor
where the court denied his purported request, and thus has not shown
whether the argument on appeal is preserved . Kentucky Rules of Civil
Procedure (CR) 76 .12(4)(c)(v) requires a statement at the beginning of each
argument in the brief with a reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner . Although Nall
cites the testimony of the witness who gave the statement, we find no request
in the record to call the prosecutor as a witness at that time. Thus, he makes
no reference to the record that reveals proper preservation . This is not specific
enough to allow us to review this claim of error, and so we do not. Moreover,
the Commonwealth asserts that the witness was impeached using the
statement itself. And we have no basis to conclude that the prosecutor would
have attested to anything other than that the statement conformed to what the
witness told him.
20 Miller v. Commonwealth, 77 &Md 566, 576 (Ky. 2000.
15 VI . NO ERROR IN CLOSING ARGUMENT.
Finally, Nall argues that the prosecutor impermissibly commented on the
consequences of a jury verdict in closing argument . The Commonwealth notes
that this allegation of error is not preserved for appellate review because the
Commonwealth's Attorney agreed to clarify the remark, and Nall asked for no
further curative action.21 We agree that there is no error for our review . The
prosecutor reluctantly agreed to clarify his statement in closing argument that
if one juror did not vote to convict, Nall would go free. The prosecutor restated
his comment to inform the jury that if they did not agree to convict, the charges
would remain but Nall would not go to prison that day. Nall requested no
further relief.
VII . NO CUMULATIVE ERROR.
Since we have not found significant error in the trial, we cannot agree
with Nall that there was cumulative error that warrants reversal of his
convictions . As a result, and for all the foregoing reasons, we affirm the
judgment .
All sitting. All concur.
21 Citing Johnson v. Commonwealth, 105 S .W.3d 430, 441 (Ky. 2003) .
16 COUNSEL FOR APPELLANT:
Dwight Preston Shane Alan Young Lewis 8v Preston 102 West Dixie Avenue Elizabethtown, Kentucky 42701-1498
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentuc
James Coleman Assistant Attorney General Office of Criminal Appeals 1024 Capital Center Drive Suite 200 Frankfort, Kentucky 40601-8204