DocketNumber: NO. 01-16-00883-CR
Citation Numbers: 540 S.W.3d 252
Judges: Brown, Keyes, Lloyd
Filed Date: 1/11/2018
Status: Precedential
Modified Date: 1/21/2022
Keith William Lamerand was convicted of aggravated sexual assault of a child and sentenced to 30 years' confinement.
Background
In 2013, the then-ten-year-old complainant, pseudonymously referred to as Kathryn, spent the summer with her grandmother, Lori Lamerand, and step-grandfather, Keith Lamerand. Later that November, after Kathryn had returned home and started school, she wrote a note to her teacher that said, "My papa has been touching me and I did not tell my parents."
Kathryn's teacher sent Kathryn to meet with the school counselor, Samantha Clark.
A few days later, Detective Wiers met with Kathryn at school. During the meeting, Kathryn spoke with Detective Wiers in detail about the alleged abuse. She told him that, over the summer, in the mornings before Keith left for work, he would come into the room where she was sleeping and "touch her all over," from her chest down to her knees. She said that on multiple occasions, Keith "would slide her underwear to the side, place his hand on her vagina and rub and then insert his finger."
After the meeting, Wiers contacted Kathryn's mother, Macie Brown.
That December, Sgt. Coleman contacted Keith and Lori, informed them of the allegations, and scheduled an interview. During the interview, Keith denied touching Kathryn inappropriately and explained that in the mornings he would come into her room and reposition her while she slept. At the end of the interview, Keith agreed to meet Sgt. Coleman again in late January. But before their scheduled second meeting, Keith attempted to take his own life by shooting himself in the mouth. Keith spent several months in the hospital, where he underwent multiple surgeries. Keith survived, but the gunshot wound left him severely disfigured.
After Keith was discharged from the hospital, Sgt. Coleman met with him for a second time. During their second meeting, Keith told Sgt. Coleman that he had tried *256to kill himself "because he didn't want his family to be in pain."
As the police continued their investigation, Keith and Lori's niece accused Keith of fondling her breasts when she stayed a week with them in 2002, when she was eleven years old. The police also discovered that in 1988, while Keith was serving in the Navy, he was court-martialed for inappropriately touching his then-six-year-old daughter. Keith pleaded guilty to indecency with a child and was sentenced to a short period of confinement, demoted, and then discharged from the Navy.
Keith was indicted for continuous sexual abuse of a child.
Admission of Medical Records
In his first issue, Keith contends that the trial court abused its discretion in admitting medical records that contained Kathryn's hearsay statement identifying Keith as her assailant. During trial, the State offered into evidence a report prepared by the pediatrician who performed Kathryn's sexual-assault examination, Dr. Cynthia Smith. The report contained Kathryn's statement that her "grandpa" gave her "bad touches." Keith objected that the statement was hearsay. The State responded that the statement was admissible because it was made for medical diagnosis or treatment. See TEX. R. EVID. 803(4). The trial court overruled Keith's objection and admitted the report. Keith argues that the trial court's ruling was an abuse of discretion because the report contained hearsay that did not fall under the exception for medical diagnosis or treatment. He concedes that certain information reasonably pertinent to diagnosis and treatment was admissible but contends that Kathryn's statement identifying him as her assailant was not.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See TEX. R. EVID. 801(d). It is inadmissible unless a statute or rule provides otherwise. TEX. R. EVID. 802. The erroneous admission of hearsay does not *257constitute reversible error "if other evidence proving the same fact is properly admitted elsewhere." Infante v. State ,
Assuming without deciding that the medical report contained inadmissible hearsay and that Keith preserved the error,
Additionally, Kathryn herself testified in detail about the abuse, specifically identifying Keith as the man who assaulted her. See Taylor v. State ,
Admission of Outcry Testimony
In his second and third issues, Keith contends that the trial court abused its discretion in admitting outcry testimony from Ms. Clark and Detective Wiers. During trial, Keith objected to Ms. Clark and Detective Wiers testifying to any hearsay statements made by Kathryn. The State responded that Kathryn's hearsay statements to Ms. Clark and Detective Wiers were admissible outcries under Article 38.072 of the Code of the Criminal Procedure. The trial court held a hearing outside the presence of the jury, determined that the statements were admissible, and overruled Keith's objections.
A. Applicable law and standard of review
Hearsay is generally inadmissible. See TEX. R. EVID. 802. Article 38.072 creates an exception for certain outcry statements made by children who are the victims of sexual assault. TEX. CODE CRIM. PROC. art. 38.072, §§ 1(1), 2.
*258To be admissible in the guilt-innocence phase of a trial, the statement must describe the alleged offense and be made by the child against whom the act was committed.
(1) whether the victim testifies at the trial and admits making the out-of-court statement; (2) whether the child is of a level of maturity to understand the need to tell the truth and to have the ability to observe, recollect, and narrate; (3) whether the child's out-of-court statement is corroborated by other evidence; (4) whether the child's out-of-court statement was spontaneously made in the child's own terminology or whether there is evidence of prior prompting or manipulation by adults; (5) whether the child's out-of-court statement is clear and unambiguous and rises to the needed level of certainty; (6) whether the statement is consistent; (7) whether the statement describes an event that a child of his or her age could not be expected to fabricate; (8) whether there is abnormal behavior by the child after the contact; (9) whether there is a motive for the child to fabricate the out-of-court statement; (10) whether the statement is against the interest of the child, e.g., the child expects punishment because of reporting the conduct; and (11) whether there was an opportunity under the evidence for the alleged act to have been committed by the defendant.
Walker v. State ,
B. The admission of Ms. Clark's outcry testimony was proper
Keith argues that the trial court abused its discretion in admitting Ms. Clark's outcry testimony because Kathryn's outcry to Ms. Clark was not reliable. We disagree.
Kathryn's outcry to Ms. Clark was supported by numerous indicia of reliability, including the testimony of Kathryn herself, who discussed Keith's abuse in detail and admitted making the statement to Ms. Clark.
Kathryn described the abuse in her own terminology, stating that her grandfather touched her in "bad spots."
There is no evidence that Kathryn had any motive to fabricate her allegations against Keith.
Kathryn testified that she waited several months to tell someone about the abuse because she feared she would be called a liar or otherwise get in trouble.
We hold that the trial court did not abuse its discretion in admitting Ms. Clark's outcry testimony under Article 38.072. We overrule Keith's second issue.
C. The admission of Detective Wiers's outcry testimony was harmless
Keith argues that the trial court abused its discretion in admitting Detective Wiers's outcry testimony because Detective Wiers was not the first person to whom Kathryn made a statement about the abuse-Kathryn's counselor was. Assuming without deciding that the trial court erred in admitting Detective Wiers's outcry testimony, we must determine whether the error was harmful.
The improper admission of inadmissible hearsay under Article 38.072 is non-constitutional error; we will consider it harmless if the same or similar evidence is admitted without objection at another point in the trial. See Duncan v. State ,
Kathryn testified in detail about the abuse. Kathryn testified that, during her stay, she slept on a recliner in the downstairs game room. She testified that, around the second or third week, Keith began coming into the room in the early morning on his way out for work and touching her "everywhere." Kathryn explained that Keith would kneel beside her, put his arms around her, hug her, kiss her, bring his hand into her underwear, and place a finger inside of her vagina. Kathryn said that this occurred two-to-three times a week for the remainder of her stay.
Kathryn testified that Keith's touching made her "uncomfortable" and "didn't feel right at all." She described how one time she tried to pull away but that Keith grabbed her buttocks and pulled her back. She said that she wanted to tell him to *260stop but was unable to speak and was afraid to tell anyone else about what was happening.
Kathryn's testimony and Detective Wiers's outcry testimony both established that Keith sexually abused Kathryn by digitally penetrating her vagina multiple times over the course of the summer. Because the same evidence was admitted without objection at other points during the trial, we conclude that any error in admitting Detective Wiers's outcry testimony was harmless. See Duncan ,
Admission of Evidence of Attempted Suicide
In his fourth issue, Keith contends that the trial court abused its discretion in admitting evidence that Keith attempted suicide after his initial interview with Sgt. Coleman. Keith argues that evidence was inadmissible because (1) it was not relevant and (2) even if it was relevant, its probative value was substantially outweighed by the danger of unfair prejudice.
A. Applicable law and standard of review
Evidence is relevant if it has any tendency to make a fact that is of consequence in determining the action more or less probable than it would otherwise be. TEX. R. EVID. 401. Relevant evidence is generally admissible. See TEX. R. EVID. 402. However, a trial court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. TEX. R. EVID. 403.
"Probative value" refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence. Gigliobianco v. State ,
In determining whether probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider "(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence." Hernandez v. State ,
We review a trial court's ruling under Rule 403 of the Texas Rules of Evidence for an abuse of discretion. Cox ,
B. The evidence of Keith's attempted suicide was relevant
Keith argues that evidence of his attempted suicide was not relevant because *261he left a suicide note in which he maintained his innocence.
Evidence that a defendant attempted suicide after the offense is relevant to show the defendant's consciousness of guilt. See Johnson v. State ,
Keith attempted suicide shortly after learning that he had been accused of sexually assaulting Kathryn and that the police were investigating him. Given the timing, a jury could have reasonably inferred that Keith's suicide attempt evidenced a consciousness of guilt, notwithstanding the note in which he maintained his innocence. See Johnson ,
C. The danger of unfair prejudice did not substantially outweigh the evidence's probative value
Keith next argues that the evidence of his attempted suicide was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. To determine whether the evidence's probative value was substantially outweighed by the danger of unfair prejudice, we must conduct a Rule 403 analysis. Hernandez ,
1. The evidence's probative value
As noted above, from the evidence that Keith attempted suicide after his initial interview with Sgt. Coleman, the jury *262could have reasonably inferred that Keith had a consciousness of guilt. See Johnson ,
2. The evidence's potential to impress the jury in some irrational yet indelible way
Although the evidence of the suicide attempt likely carried some emotional weight, Keith provides no reason to conclude that the evidence impressed the jury in some irrational yet indelible way or otherwise influenced the jury to decide the case on an improper basis. Because the evidence would not irrationally influence the jury, this factor weighs in favor of admissibility.
3. The time needed to develop the evidence
The State developed the evidence through the testimony of Sgt. Coleman, who testified about how she interviewed Keith both before and after his suicide attempt. Sgt. Coleman's testimony on this issue takes up three pages of the over-850-page record. The time needed to develop the evidence weighs in favor of admissibility.
4. The State's need for the evidence
Even without the evidence of Keith's attempted suicide, the State presented sufficient evidence to convict Keith, including the testimony of Kathryn, which was clear and detailed, as well as the testimony of Keith's niece, daughter, and ex-wife, which established that Keith had inappropriately touched young girls in the past. But the State did not present any physical evidence, and Keith put forth a viable defense through his wife (Kathryn's grandmother) Lori, who testified that Keith could not have touched Kathryn in the mornings before he left for work because she was also downstairs at that time and therefore would have noticed. The State's need for the evidence weighs neither for nor against admissibility.
At least three of the four factors weigh in favor of admissibility, and none weigh against. We hold that the trial court did not abuse its discretion in ruling that the probative value of Keith's suicide attempt was not substantially outweighed by the danger of unfair prejudice. Therefore, we overrule Keith's fourth issue.
Notice of Intent to Use Evidence of Extraneous Bad Act
In his fifth issue, Keith contends that the trial court abused its discretion in denying him a recess when he received late notice of the State's intent to present evidence of his attempted suicide. Keith contends that his attempted suicide was an extraneous act under Rule 404(b) and that the State was therefore required to provide him with reasonable notice that it intended to introduce the evidence during its case-in-chief. See TEX. R. EVID. 404(b)(2) ("On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence-other than that arising in the same transaction-in its case-in-chief.").
Assuming that the State was required but failed to provide reasonable notice of its intent to introduce evidence of Keith's attempted suicide during its case-in-chief, we hold that the failure did not harm Keith because it did not affect his substantial rights. See TEX. R. APP. P. 44.2(b) ; Hernandez v. State ,
The purpose of Rule 404(b)'s notice requirement is to prevent surprise.
*263Hayden v. State ,
During a bench conference, the prosecutor explained that, while she did not provide defense counsel with formal notice, she nevertheless made defense counsel aware the State intended to use evidence of Keith's attempted suicide:
I did not give notice of it but I feel as though he's been aware because I've presented case law to him prior to that there was-I was going to use this as evidence of guilt. We've had that conversation way in prior to trial. I just did not give formal notice on paper but it is a discussion that we've had on numerous occasion[s] that it was my intent to use his suicide as evidence of guilt in this case and [I] presented case law on that matter.
Defense counsel did not dispute the prosecutor's account during the bench conference, and Keith does not dispute it now on appeal or otherwise argue that he was surprised by the State's use of evidence of his attempted suicide. In fact, the record indicates that Keith anticipated that the State would use the evidence. At trial, Keith presented evidence that he had always maintained his innocence and attempted suicide not because he was guilty but because he was depressed, experiencing financial difficulties, and thought his death might reconcile Lori and Macie, who had been extremely close until Kathryn accused Keith of sexual assault. We overrule Keith's fifth issue.
Conclusion
We affirm the trial court's judgment.
See Tex. Penal Code § 22.021(a)(1)(B).
Like Kathryn, Samantha Clark is a pseudonym.
Again, a pseudonym.
See Tex. Penal Code § 21.02(b).
See United States v. Renville ,
At trial, Keith generally objected to the portions of the report that contained Kathryn's statements about "what allegedly happened in this case...." He did not specifically object to Kathryn's statement identifying him as her assailant. See Sonnier v. State ,
Article 38.072 further requires that the offering party provide proper notice to the adverse party and that the child who made the outcry be available to testify. Tex. Code Crim. Proc. art. 38.072, § 2(b)(1), (3).
Although the suicide note was lost by the police, Keith's stepdaughter, Shay Lynn Hood, testified that she read the note and that in it Keith said, "I'm definitely not guilty...."
See also Johnson v. State , No. 01-11-00820-CR,
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