Hoff v. Commonwealth

394 S.W.3d 368, 2011 WL 6542997, 2011 Ky. LEXIS 172
CourtKentucky Supreme Court
DecidedDecember 22, 2011
DocketNo. 2010-SC-000167-MR
StatusPublished
Cited by31 cases

This text of 394 S.W.3d 368 (Hoff v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoff v. Commonwealth, 394 S.W.3d 368, 2011 WL 6542997, 2011 Ky. LEXIS 172 (Ky. 2011).

Opinion

Opinion of the Court by

Justice NOBLE.

Appellant David Hoff was convicted by a Christian County jury of eight counts of first-degree rape and eight counts of incest. Appellant was given a life sentence. Because of the extensive use of inadmissible hearsay and the impermissible bolstering of the victim’s testimony, this Court reverses the convictions and remands for a new trial.

I. BACKGROUND

This case arose when B.H., who was then twelve years old, reported that Appellant, her father, had raped her repeatedly since she was four years old. B.H. lived with Appellant and other family members in Christian County, Kentucky. The family relationships in this case are complicated, but a brief summary is appropriate because several family members testified at trial.

Appellant and Marilyn Benedict have lived together since 1984 as husband and wife, although they are not legally married. Appellant has three children with Benedict: David Jr., Tiffany, and Matthew.

Appellant raped Benedict’s adult daughter from a previous relationship, Angela Green, on many occasions, resulting in the birth of three children: B.H. (daughter born 1995, and the victim in this case), Ju.H. (son born 1998), and Je.H. (daughter born 2003).1 B.H. was told that Benedict was her mother rather than Green, although B.H. eventually found out that Green is her real mother. B.H. always knew Appellant to be her father.

The entire family, including Appellant, Marilyn Benedict and her three children with Appellant, Angela Green and her three children with Appellant, and the girlfriends and children of Matthew and David, lived in a three-bedroom trailer and an outbuilding in Christian County.

B.H., who was fourteen years old at the time of the trial, testified that Appellant [371]*371had sexually abused her since she was a small child. She said Appellant would make her take her clothes off and then have sex with her. Appellant would get on top of her and put his “thing” in her. Before she got her own bedroom when she was eight or nine, she would sleep with Benedict and Appellant, and Appellant would rub her stomach, pull her pants down, play with her “privates,” and put his “thing” in her. Appellant began homes-ehooling B.H. in third or fourth grade, but instead of schoolwork, he would actually make her do things sexually.

B.H. said that the abuse happened more than once a week from when she was five or six years old until she was removed from the home in December 2007, when she was twelve. Although she could clearly remember the abuse from when she was five or six years old, she also believed that it happened before that, but she had only vague memories.

In December 2007, B.H. told her teacher what was happening to her. A social worker talked to her and she was removed from the home. In the next few weeks, she was interviewed by Detective Kent Roberts, and she underwent a physical examination by Dr. Travis Calhoun.

Appellant was charged with eight counts of rape and eight counts of incest. Each count corresponded to one calendar year (for example, “January 1, 2000 — December 31, 2000”) from when B.H. was four to when she turned twelve on April 19, 2007. The jury found Appellant guilty of all counts and recommended the sentence of life for each of the rape convictions, the maximum sentence of ten years for six of the incest convictions, and the maximum sentence of life for the other two incest convictions.2

Appellant now challenges his convictions before this Court as a matter of right. Ky. Const. § 110(2)(b).

II. ANALYSIS

Appellant raises a number of issues on appeal. This opinion first addresses his claim that Dr. Calhoun was allowed to impermissibly bolster B.H.’s testimony. As in many child sex abuse cases, this case hinges on the credibility of the child victim, B.H., as there was limited physical evidence of the crimes. Because of the extensive use of inadmissible hearsay and impermissible bolstering in Dr. Calhoun’s testimony, reversal is required.

This opinion then addresses Appellant’s other claims that are likely to occur again on retrial.

A. Dr. Calhoun’s Testimony

Dr. Calhoun examined B.H. on December 20, 2007. He testified at trial and his forensic examination report was introduced into evidence. Dr. Calhoun testified that B.H. told him that her father had had sex with her since she was four years old, and that he had engaged in other inappropriate sexual touching. Dr. Calhoun said that during the examination, B.H. was withdrawn and emotionally traumatized, and it was hard to get her to answer his questions.3 He saw a cut on B.H.’s arm [372]*372that B.H. said her father had caused. Dr. Calhoun did a vaginal examination and found tearing on B.H.’s hymen that was consistent with penetrating vaginal trauma, although he acknowledged that the injury could also be consistent with a sports injury or an accident. Dr. Calhoun said that he had no reason not to believe what B.H. told him, and his opinion was that the injury to her hymen was consistent with her having sex and with the history of rape she described. On redirect, Dr. Calhoun said that B.H. told him the only person who had had sex with her was her father, and that she had not had sex with her boyfriends.

All of this information was included in the forensic examination report, which was admitted into evidence without redaction. The report stated that the patient history was obtained from the Department of Community Based Services and B.H. herself. The report also included some information that Dr. Calhoun did not mention at trial. For example, the report said that B.H. told Dr. Calhoun that Appellant cut her with a knife and hit her with a baseball bat when she refused to have oral sex with him. She also said that Appellant had recently taken her to Louisville to meet a man he met online. She said Appellant made B.H. undress and go to the bedroom with the man, and the man “rubbed her private parts.” According to the report, B.H. also told Dr. Calhoun that she told her teacher and wrote in her diary that her father had raped her. Dr. Calhoun’s report reached the following conclusion: “Generally conclusive evidence of previous hymenal penetration with the tear in the 6:30 position. This coupled with the child[’]s extreme emotional distress and affect lead me to believe that the child has in fact been sexually abused.”

Appellant raises two issues with Dr. Calhoun’s testimony. First, he argues that Dr. Calhoun was allowed to testify about inadmissible hearsay. Second, he argues that Dr. Calhoun’s statement that he believed B.H.’s story constituted impermissible bolstering of B.H.’s testimony. Appellant did not object at trial to Dr. Calhoun’s testimony or the admittance of the forensic examination report,4 so this Court reviews for palpable error. RCr 10.26. After discussing the two issues, this opinion then explains why they constituted palpable error in the context of this case.

1. Inadmissible Hearsay in Dr. Calhoun’s Testimony and Forensic Examination Report

Dr. Calhoun’s testimony and report contained a number of statements that B.H. made to him during the examination.

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Bluebook (online)
394 S.W.3d 368, 2011 WL 6542997, 2011 Ky. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoff-v-commonwealth-ky-2011.