Sanderson v. Commonwealth , 291 S.W.3d 610 ( 2009 )

Opinion of the Court by

Justice NOBLE.

After a jury trial, Appellant was convicted of two counts of Second-Degree Sodomy and three counts of First-Degree Sexual Abuse, and was sentenced to thirty-five years in prison and five years of conditional discharge. He raises five claims of error on appeal. Because Appellant’s Child Sexual Abuse Accommodation Syndrome claim constitutes reversible error, his conviction is reversed and the case is remanded for a new trial. However, because other errors are likely to recur on retrial, they are also addressed.

I. BACKGROUND

Appellant met Mendy Terrell and her daughter, B.T., in the late 1990s and he married Mendy in December 2000. Appellant and B.T. appeared to have a close relationship. They moved into Appellant’s house, and Appellant built a garage on the property where he could watch television and play poker with friends.

B.T. testified that after moving into Appellant’s house, he sexually abused her on a weekly basis for six years, as much as two to three times per week while Mendy was at work or sleeping. He told B.T. that he would hurt her if she ever said anything about the abuse, which took place in the garage until the three of them moved to another house. At the new house, the abuse took place in the garage, in B.T.’s room, and in Mendy’s room.

Several years after her marriage to Appellant, Mendy became pregnant. They began experiencing marital problems after she gave birth to the child, and a divorce action was filed on January 6, 2006. Appellant moved out of the house on February 25, 2006, but allegedly continued to abuse B.T. until about a week before he left.

About two months after Appellant left, the mother of a child who had spent the night with B.T. several years earlier told Mendy that when her daughter spent the night there, she watched a pornographic movie with B.T. and Appellant. According to B.T.’s friend, B.T. instigated the viewing. When Mendy first confronted B.T., she denied that it happened. Mendy then called Appellant, and told him that she knew about the pornographic movie he had watched with the girls. B.T. overheard the last part of the conversation and left, but later confessed to having watched the movie and told Mendy about the abuse that had taken place.

Appellant was indicted, convicted by a jury, and sentenced to thirty-five years in prison. His appeal to this Court, therefore, is a matter of right. Ky. Const. § 110(2)(b).

II. ANALYSIS

A. Compliance with CR 76.12.

The Commonwealth contends that Appellant’s brief should be stricken for failure to comply with CR 76.12(4)(c)(v), which requires the brief to refer to the point in the record where each error was preserved. However, a careful review of Appellant’s brief reveals that all but one alleged error was preserved or argued to be palpable. Therefore, Appellant has in fact substantially complied with the provisions of CR 76.12, that issue can be determined from the record, and this Court will exercise its discretion not to strike the brief. Simmons v. Commonwealth, 232 S.W.3d 531, 533 (Ky.App.2007) (“While [Appellant’s] brief did not fully comply with [CR 76.12(4)(c)(v)], dismissal for failure to comply with the provisions of CR 76.12 is discretionary rather than mandatory.”); Baker v. Campbell County Bd. of Ed., 180 S.W.3d 479, 482 (Ky.App.2005) (“[D]ismissal based upon a failure to comply with CR 76.12 is not automatic”).

B. Testimony Related to Child Sexual Abuse Accommodation Syndrome.

Appellant claims the trial court improperly admitted testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS) from Mendy, Brian Terrell (B.T.’s father), and Lori Brown, a clinical psychologist. Though Mendy and Terrell both testified about B.T.’s physical and psychological “symptoms,” the most damaging testimony came from Brown, a clinical psychologist who counseled B.T. and gave testimony that B.T.’s addition of new allegations of sexual abuse is normal.

Although Appellant objected three separate times to Brown’s testimony during the Commonwealth’s case-in-chief, the Commonwealth contends this issue is improperly preserved ■ for appellate review. Indeed, it does not appear that Appellant specifically used the term CSAAS in his objections. However, we reject the Commonwealth’s contention that Appellant is presenting a new theory of relief on appeal, having conceded the admissibility of Brown’s testimony. To the contrary, Appellant objected first to “any” of Brown’s testimony before she began testifying and objected again two more times during her testimony. These three objections adequately informed the trial court of the patent inadmissibility of Brown’s CSASS-related testimony. Hardin v. Commonwealth, 428 S.W.2d 224, 226 (Ky.1968) (“While the objections were not sharply to the point we think they adequately alerted the trial judge to the proposition .... ”). Appellant repeatedly raised hearsay as a basis for his objections; and CSAAS testimony is inadmissible, at least in part, because it is hearsay. Hellstrom v. Commonwealth, 825 S.W.2d 612, 614 (Ky.1992) (“Mr. Veltkamp listed the symptoms but refrained from classifying them directly as the ‘child sexual abuse syndrome.’ Avoiding the term ‘syndrome’ does not transform inadmissible hearsay into rehable scientific evidence.”) We conclude that Appellant’s repeated objections, although not precisely articulated, were sufficient to preserve this issue for our review. It should also be noted that Sanderson’s convictions are being reversed on another independent ground,- making this preservation issue largely irrelevant.

In Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky.2005), this Court quoted the basic rule against CSAAS testimony:

[Wjhere a victim had delayed reporting of abuse, we held improper the testimony of a seasoned child sex abuse investigator stating that it was common, in her experience, for sexually abused victims to delay reporting of the abuse.... We held that “a party cannot introduce evidence of the habit of a class of individuals either to prove that another member of the class acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way under similar circumstances.”

Id. at 414 (quoting Miller v. Commonwealth, 77 S.W.3d 566, 571-72 (Ky.2002)).

In Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky.1992), this Court reversed a conviction based on testimony similar to the testimony in this case. In Hellstrom, the director of the Child Abuse Center at the University of Kentucky Medical Center (who had a Masters degree in clinical social work) testified that “ ‘delayed disclosure’ is common in these types of cases.” Id. at 613. The Court noted that “[bjoth sides recognize that we have reversed a number of cases because of trial error in permitting the use of testimony regarding the so-called ‘child abuse accommodation syndrome’ to bolster the prosecution’s case.” Id. Further, it does not matter that the social worker “listed the symptoms but refrained from classifying them directly as the ‘child sexual abuse syndrome.’ Avoiding the term ‘syndrome’ does not transform inadmissible hearsay into reliable scientific evidence.” Id. at 614.

In Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky.1996), this Court applied the rule against CSAAS testimony to experts. Newkirk first noted that “[i]n an unbroken line of decisions ... this Court has repeatedly expressed its distrust of expert testimony which purported to determine criminal conduct based on a perceived psychological syndrome.” Id. at 690-91. The multiple rationales for the specific rule against CSAAS testimony include “the lack of diagnostic reliability, the lack of general acceptance within the discipline from which such testimony emanates, and the overwhelmingly persuasive nature of such testimony effectively dominating the decision-making process, uniquely the function of the jury.” Id. at 691. New-kirk contains a lengthy discussion of CSAAS cases, and it concludes:

[Tjhe cases demonstrate unmistakably that this Court has not accepted the view that the CSAAS or any of its components has attained general acceptance in the scientific community justifying its admission into evidence to prove sexual abuse or the identity of the perpetrator. Moreover, such evidence has been rejected on grounds that it lacks relevancy for failure to make the existence of any fact of consequence more probable or less probable than it would have been without the evidence. KRE 401.

Id. at 693.

This Court further noted that even if it were to “ ‘become accepted by the scientific community that a child who had been sexually abused is likely to develop certain symptoms or personality traits, there would remain the question of whether other children who had not been similarly abused might also develop the same symptoms or traits.’ ” Id. (quoting Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky.1986)). And finally, this Court “expressed grave concern that the expert may invade the province of the jury by unduly influencing its assessment of credibility.” Id. “This Court has previously stated there is no such thing as expertise in the credibility of children.” Id. at 694. This Court has “embraced the view that mental health professionals are not experts at discerning the truth; they are trained to accept facts provided by their patients without critical examination of those facts.” Id.

In this case, Brown testified that it is normal for child victims of sexual abuse, like B.T., to add details about their abuse after they have been in counseling for an extended period of time and to appear happy in their outward life and be able to excel in their extracurricular activities and make good grades. The Commonwealth even asked whether what Brown described as a child’s attempt to disconnect from such abuse is the reason sexually- abused girls become prostitutes.

Here, the testimony in the Commonwealth’s case-in-chief that sexually- abused children, like B.T., commonly add details over time through counseling is analogous to the situation in Miller, where this Court held testimony that sexually abused victims commonly delay reporting of their abuse to be reversible error. Miller, 77 S.W.3d at 577. In essence, victims are delaying their reporting of some of their abuse when they later add details. In addition, when Brown was recalled in the Commonwealth’s rebuttal, she went even further in identifying generic characteristics of child sex abuse victims by describing them as outwardly appearing happy. This is the type of testimony this Court feared in Newkirk; this was testimony where there ‘“remain[s] the question of whether other children who had not been similarly abused might also develop the same symptoms or traits.’ ” Newkirk, 937 S.W.2d at 691-92 (quoting Lantrip, 713 S.W.2d at 817). Finally, the Commonwealth even went so far as to ask whether these “symptoms” are what cause sexually abused children to become prostitutes.

Brown’s “expert” testimony in this case, coupled with the Commonwealth’s speculation about the creation of prostitutes, are the exact type of generic and unreliable evidence this Court has repeatedly held to be reversible error. Therefore, this case must be reversed for a new trial because of the admission of CSAAS testimony against Appellant.

C. Remaining Issues.

1. Statutory Maximum Sentence for Class C Felonies and Retroactive Application of Amendment to Conditional Discharge Statute.

“Because the judgment has been reversed for the foregoing reasons, we will address only those additional assignments of error that are likely to recur upon retrial.” Bell v. Commonwealth, 245 S.W.3d 738, 743 (Ky.2008); Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky.2005); Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky.1999).

Appellant is correct that under KRS 532.110(l)(c) and KRS 532.080(6)(b), he could only receive a maximum sentence of twenty years, not the thirty-five years to which he was sentenced. Appellant was convicted of two counts of Second-Degree Sodomy¹ and three counts of First-Degree Sexual Abuse.²

KRS 532.110(l)(c) states, “The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crimes for which any of the sentences is imposed.... ” The highest class of crime for which Appellant was convicted was Second-Degree Sodomy, a Class C felony. In Gibbs v. Commonwealth, 208 S.W.3d 848, 855 (Ky.2006), this Court held that where “[t]he highest degree of felony conviction that Appellant received was a Class C felony ... the longest aggregate sentence Appellant could have received was the maximum length authorized for a Class C felony under the Persistent Felony Offender statute: KRS 532.080.” KRS 532.080(6)(b) states, “If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be ... more than twenty (20) years.” Therefore, even though Appellant’s conviction is reversed, if he is convicted of the same felonies after another trial, his maximum sentence cannot exceed twenty years’ imprisonment.

In addition, Appellant was sentenced to five years of conditional discharge, although the version -of KRS 532.043 in effect at the time these offenses were allegedly committed (prior to July 2006) only allowed for a conditional discharge of three years. The situation here is on point with Purvis v. Commonwealth, 14 S.W.3d 21 (Ky.2000), where a prior amendment of KRS 532.043 increased the maximum length of conditional discharge. In Purvis, this Court held that the amendment disadvantaged the Appellant in that case and that its retroactive application was an ex post facto law and, thus unconstitutional. Id. at 24. The situation here is identical. Therefore, Appellant’s sentence to conditional discharge could not exceed three years, the statutory maximum at the time the alleged offenses took place.

The Commonwealth concedes the maximum possible sentence in this case was twenty years’ imprisonment and three years’ conditional discharge, but it argues that the Appellant did not make the sentencing hearing part of the record. Regardless of whether the sentencing hearing was made part of the record, this Court has a list of Appellant’s convictions before it and can apply the statutory maximum sentence as a matter of law. If Appellant is convicted of the same offenses after another trial, his maximum possible sentence will be twenty years’ imprisonment and three years’ conditional discharge.

2. Social Worker’s Hearsay and Ultimate Issue Testimony.

Appellant claims that much of the testimony of Carla Hyde, a social worker, was inadmissible hearsay because Hyde testified primarily about B.T.’s statements to her. Appellant also claims that Hyde testified about B.T.’s credibility, an ultimate fact to be decided by the jury.

Hyde testified about many things B.T. told her. Hyde testified that B.T. told her that Appellant touched her in her private areas, that Appellant showed her pornographic movies, that she would be outside playing when Appellant would call her into the garage to touch her under and on top of her clothes; that she and Appellant would lick each other; that Appellant would play with himself and stuff would come out; and that Appellant told her that if she did not do any of those things, he would hurt her. In addition, Hyde testified about the credibility of B.T. when she said B.T. “seemed believable”; and she was “appropriately nervous and scared.”

This Court “has continuously held that the hearsay testimony of social workers is inadmissible and constitutes reversible error because it unfairly bolsters the testimony of the alleged victim.” Smith v. Commonwealth, 920 S.W.2d 514, 516 (Ky.1995). “There is no recognized exception to the hearsay rule for social workers or the results of their investigations.’ ” Sharp v. Commonwealth, 849 S.W.2d 542, 546 (Ky.1993) (quoting Souder v. Commonwealth, 719 S.W.2d 730, 734 (Ky.1986), overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)). As was the case in Sharp, Hyde’s testimony “extensively repeated the [child’s] out-of-court statements” and it also “contains extensive conclusions as to the meaning of the [child’s] acts and statements.” Sharp, 849 S.W.2d at 545. Therefore, this case fits within the established rule that the hearsay testimony of social workers is inadmissible and constitutes reversible error. On retrial, a social worker cannot testify about B.T.’s statements made to her and her conclusions on the ultimate issue of B.T.’s credibility.

III. Conclusion.

In conclusion, the trial court committed reversible error by admitting propensity testimony, a key reason for the rule against Child Sexual Abuse Accommodation Syndrome testimony.

Because Appellant has raised other issues that are likely to recur upon retrial, these issues have also been addressed. The maximum sentence for the felony convictions in this case (the highest class of which was a Class C felony) was twenty years’ imprisonment and three years’ conditional discharge (under the statute in effect at the time the offenses allegedly took place). Also, the social worker improperly testified as to B.T.’s hearsay statements to her; and she improperly testified about her ultimate opinion on B.T.’s credibility.

Therefore, the conviction and judgment of the Graves Circuit Court is reversed; and the case is remanded for a new trial.

MINTON, C.J.; CUNNINGHAM, SCHRODER and VENTERS, JJ., concur. ABRAMSON, J., concurs in result only by separate opinion. SCOTT, J., concurs, in part, and dissents, in part, by separate opinion.

1 . Second-Degree Sodomy is a Class C felony. KRS 510.080(2).

2 . First-Degree Sexual Abuse is a Class D felony. KRS 510.110(2).