Roger Dale Rafferty v. Commonwealth of Kentucky ( 2015 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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
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RENDERED: AUGUST 20, 2015
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NOT TO BE PU LISHED
2014-SC-000408-MR
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ROGER DALE RAFFERTY APPELLANT •
ON APPEAL FROM DAVIESS CIRCUIT COURT
V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
NO. 13-CR-00334
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On March 18, 2013, Appellant, Roger Dale Rafferty, and his wife, Jane
Rafferty, babysat their granddaughters, Francine and Madison.' At some point
during the day, Appellant and Francine, who was three-years-old at the time,
were left alone. During that time, Appellant placed his mouth on Francine's
vagina and then proceeded to masturbate in front of her. Approximately two
weeks passed before Francine mustered up the courage to tell her parents of
Appellant's actions. The very next day, after Francine's father confronted him,
Appellant admitted to orally sodomizing Francine and masturbating in her
presence. Francine's father immediately notified law enforcement. Shortly
thereafter, Detective Brandon Sims of the Owensboro Police Department
interviewed Appellant and procured his recorded confession.
1 Pseudonyms are being used to protect the girls' anonymity.
On May 8, 2013, a Daviess County Grand Jury indicted Appellant on one
count of first-degree sodomy and first-degree sexual abuse. Despite Appellant's
admissions, his attorney entered a not guilty plea on his behalf. The case
proceeded to trial on Mach 25, 2014. Over Appellant's objection, Francine,
who was five-years-old at the time of trial, testified via closed circuit television.
She explained that Appellant touched her "bad part" with his tongue, and then
"peed" into toilet paper. The jury ultimately found Appellant guilty of each
charge. The jury recommended a life sentence for the first-degree sodomy
charge and ten years imprisonment for the first-degree sexual abuse charge,
both to run concurrently. On July 11, 2014, the trial court sentenced
Appellant in conformity with the jury's recommendation. Appellant now
appeals his conviction and sentence as a matter of right pursuant § 110(2)(b) of
the Kentucky Constitution.
Appellant's sole argument on appeal is that the trial court abridged his
federal and state constitutional rights to confrontation and to a fair trial as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and Section Eleven of the Kentucky Constitution. Prior to
trial, the Commonwealth notified Appellant and the trial court that it intended
on calling Francine to testify during its case-in-chief. However, the
Commonwealth requested that Francine be allowed to testify by way of a closed
circuit television pursuant to Kentucky Revised Statute ("KRS") 421.350.
Appellant objected to the motion and claimed that testimony given outside of
the courtroom, without him present, would impede his ability to confront
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Francine. Prior to trial, the court conducted a hearing on the matter to
determine if there was a compelling reason to allow Francine to testify via
closed circuit television.
In support of its motion, the Commonwealth called Tara Gann, a licensed
clinical social worker, who had counseled Francine. Gann testified that in past
counseling sessions, Francine expressed her fear of Appellant. Francine
relayed to Gann that if she was to ever see Appellant she would run away.
Accordingly, Gann informed the trial court that if forced to testify in front of
Appellant, Francine would not only suffer emotional distress, but she would
likely be unable to reasonably communicate to the jury. In addition, Francine's
mother, Haley, testified that her daughter was extremely wary of seeing
Appellant and expressed concern that he would touch her again. Like Gann,
Haley believed Francine would be unable to testify in Appellant's presence,
and, if forced to do so, would suffer emotional distress.
At the conclusion of the hearing, the trial court agreed with the
Commonwealth that Francine should not testify in open court. The trial court
explained that Francine's fear of Appellant would prevent her from adequately
informing the jury of her experience. Per the Commonwealth's request,
Francine was allowed to testify in the judge's chambers while Appellant waited
in the courtroom. To ensure that Appellant maintained continuous audio
contact with his attorney during Francine's testimony, both Appellant and his
counsel were provided with walkie-talkies. As the trial judge explained, if
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Appellant had a question, he could make the walkie-talkies "beep," after which
his counsel could leave the judge's chambers to field his questions.
KRS 421.350(1)-(2) permits a victim of sexual abuse to testify outside of
the courtroom, by way of a closed circuit television, if the victim was twelve
years of age or younger when the abuse occurred and there is a compelling
need for the victim to testify outside of the defendant's presence. "A trial
court's finding of compelling need pursuant to KRS 421.350 is reviewed for
abuse of discretion." Kurtz v. Commonwealth, 172 S.W.3d 409, 411 (Ky. 2005)
(citing Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998)). A
compelling need is defined as "the substantial probability that the child would
be unable to reasonably communicate because of serious emotional distress
produced by the defendant's presence." KRS 421.350(5). Some non-exclusive
factors a court may consider in determining the existence of a compelling need
include "the age and demeanor of the child witness, the nature of the offense
and the likely impact of testimony in court or facing the defendant."
Commonwealth v. Willis, 716 S.W.2d 224, 230 (Ky. 1986).
In analyzing the above-referenced factors, we place great weight on the
fact that Francine was only three-years-old at the time of the offense and only
five-years-old at the time of trial. Based on Francine's young age and the
sensitive nature of her testimony, testifying in open court would most certainly
cause her mental distress. The victim's anguish is amplified in light of her
reasonable expectation of never seeing her assailant face-to-face again.
Danner, 963 S.W.2d at 635 (holding that it was not an abuse of discretion to
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allow the victim to testify via closed circuit television because face-to-face
arrangement would inhibit her testimony and cloud the jury's search for truth).
Indeed, even after explaining that the trial judge, attorneys, and bailiff would
be present, Francine expressed concern to her mother that Appellant would
touch her if the two were in the courtroom together.
The aforementioned testimony that Francine was frightened by even the
thought of seeing Appellant is sufficient to prove that Francine's trepidation
goes beyond a de minis nervousness or "reluctance to testify." See Kurtz, 172
S.W.3d at 411 (sole testimony of children's mental health counselor was
sufficient to support the trial court's finding of a compelling need); Hardy v.
Commonwealth, 719 S.W.2d 727, 728-29 (Ky. 1986) (videotaped deposition was
properly used at trial after psychologist and treating physician opined that it
would be emotionally and psychologically detrimental to require a six-year-old
victim to testify in person at trial). Furthermore, we believe the distress
Francine may have endured if forced to testify in open court makes it extremely
likely that her testimony would have been hindered. As a result, "and in the
interest of presenting all evidence to the jury," we conclude that the trial court
did not abuse its discretion in finding a compelling need. See Danner, 963
S.W.2d at 635.
For the aforementioned reasons, the Daviess Circuit Court's judgment is
hereby affirmed.
All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Keller, and
Venters, JJ., concur. Noble, J., concurs in result only.
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COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Nathan Todd Kolb
Assistant Attorney General of Kentucky