Hershall Nall Sr v. Commonwealth of Kentucky

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 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