RENDERED: MARCH 17, 2016
TO BE PUBLISHED
oi5uprrittr Crud of ciArttfuritv
2015-SC-000105-MR
STEPHEN BARTLEY APPELLANT
ON APPEAL FROM McLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
NO. 14-CR-000016
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A McLean County jury convicted Stephen Bartley of two counts of first-
degree sodomy and two counts of first-degree sexual abuse. Pursuant to a
post-verdict agreement between Bartley and the Commonwealth, the court
sentenced Bartley to 25 years' imprisonment. On appeal, Bartley argues that
the trial court erred when it: (1) denied his pre-trial motion to dismiss the
indictment; (2) granted the Commonwealth's intra-trial motion to amend the
indictment; (3) denied his motion for a mistrial; and (4) denied his motions for
a directed verdict. Bartley also argues that he was substantially prejudiced by
testimony about prior and uncharged bad acts and by testimony regarding the
victim's behavior while in foster care. For the following reasons, we affirm.
I. BACKGROUND.
Bartley and his first wife, Laura, had three children and what was
described as a tumultuous marriage. Laura left the marriage when their
children were younger than school age, and the couple engaged in a lengthy
and acrimonious custody battle. At some point after the dissolution of his
marriage to Laura, Bartley remarried. During the majority of the time period at
issue, Bartley lived with his three children, his second wife, and her two
children. 1
Regina, 2 the Bartleys' middle child, alleged that Bartley began sexually
abusing her when she was three or four years old, and that the abuse
continued until she was nine or ten. At trial, Regina, who was then 14 years
old, testified about the following four specific incidents. When she was three
or four years old, Bartley came into her bedroom, woke her, and told her to go
into his bedroom. Bartley then removed Regina's panties and his shorts and
digitally and orally manipulated and penetrated her vagina. When she was five
or six years old, Regina accompanied Bartley to the garage where she
performed oral sex on him. Regina testified that, after he ejaculated, Bartley
gave her apple juice to rinse out her mouth. When Regina was eight, Bartley
came into her bedroom and rubbed her vagina with his hand. Finally, when
she was nine or ten, Bartley asked Regina to go into the home office, where
I It is unclear from the record if one of the other two children was the biological
child of Bartley and his second wife. However, the nature of that relationship is
irrelevant to this appeal.
2 Regina is a pseudonym employed in this opinion to protect the child's true
identity.
2
they engaged in mutual masturbation. We note that Regina testified in some
detail about each of these incidents, describing the type of clothing each was
wearing during two of the incidents, whether it was night or day, and, in some
instances, the weather. However, Regina could not provide any specific dates.
As a result of her parents' ongoing custody battle and accusations made
during that litigation (none of which involved sexual abuse), Regina had
frequent, if not continuous, contact with social workers and therapists from the
Department of Family and Juvenile Services. Despite these contacts, as well as
contact with teachers, school counselors, medical care providers, and family
members, Regina testified on direct examination that she did not report
Bartley's abuse to anyone in authority until March 2013. Regina explained
that she delayed making a report because she was afraid of Bartley and did not
want to bring attention to herself or suffer recrimination because she had not
stopped Bartley. On cross-examination, Regina testified that she had forgotten
that, sometime before March 2013, she had reported the abuse to her mother
while they were in the midst of an argument. However, according to Regina,
her mother did not believe any abuse had occurred.
Bartley testified that he loved Regina and that he had not abused her.
He could not explain why Regina was making false accusations and questioned
her credibility because of her failure to report the abuse despite frequent
opportunities to do so. He also noted that Regina did not make her
accusations until after she had been charged with criminally assaulting her
3
mother. Bartley also testified that, because of the ongoing custody battle with
his ex-wife, he tried not to be alone with any of his children.
Based on the preceding, and additional testimony that we set forth
below, the jury convicted Bartley of all charges.
II. STANDARD OF REVIEW.
The issues raised by Bartley have different standards of review.
Therefore, we set forth the appropriate standard of review as we address each
issue.
III. ANALYSIS.
A. The Trial Court Did Not Err When It Denied Bartley's Motion to
Dismiss the Indictment.
On January 13, 2014, the grand jury returned an indictment charging,
in pertinent part, 3 that Bartley committed two counts of "sodomy in the first-
degree when he engaged in deviate sexual intercourse with [Regina], a female
less than twelve (12) years of age" and two counts of "sex abuse in the first-
degree when he subjected a female child, [Regina], to sexual contact who was
less than twelve (12) years of age" between "2004 and March, 2012, in McLean
County, Kentucky." On March 24, 2014, Bartley's counsel filed a motion for a
bill of particulars seeking additional information. At the hearing on that
motion the Commonwealth indicated that it had provided a copy of a recorded
interview of Regina to Bartley's counsel and that additional details were
3 The indictment also charged Bartley with two counts of first-degree rape.
However, the Commonwealth dismissed those counts because the alleged offenses
occurred outside of McLean County.
4
contained in that interview. When Bartley's counsel indicated he was having
difficulty hearing the copy of the tape that he had, the Commonwealth agreed
to provide him with another copy. Bartley's counsel then stated that if he
needed any additional information after listening to the tape, he would advise
the court and the Commonwealth accordingly.
On August 11, 2014, Bartley notified the court that he had retained new
counsel. On October 31, 2014, the Commonwealth sent correspondence to
Bartley's new counsel advising him of additional facts regarding each of the
counts in the indictment. The additional facts were consistent with Regina's
ultimate testimony, except for the age range when the incident in the garage
occurred.
On the morning of trial, Bartley moved to dismiss all of the counts of the
indictment due to lack of specificity. In particular, he noted that the offenses
occurred within a range of seven years and, without more specific dates, he
could not mount an adequate defense. The Commonwealth admitted that it
was difficult to get specific dates, noting that Regina was between three or four
and ten or eleven years old when the events took place. However, the
Commonwealth advised the court that it had tried to be as specific as possible
in its October 31, 2014 disclosure letter to Bartley. The Commonwealth also
noted that it had provided an audio tape to Bartley several months earlier.
Bartley again complained that he was unable to hear what Regina said on the
tape; however, it does not appear that he had mentioned this to either the
court or the Commonwealth in the months after he received the second copy of
the tape. The court noted that Bartley had a second copy of the tape for some
time and had not complained about that tape earlier. Therefore, the court held
that the tape was not an issue. The court then agreed with Bartley that the
indictment was not specific and asked the Commonwealth if it wanted to move
to amend it to conform with the anticipated testimony. The Commonwealth
stated that it would wait to see what transpired at trial. The court then noted
that the last count was the least specific and could be a problem; however, it
denied Bartley's motion.
During trial Bartley again moved to dismiss the indictment and he
sought a new trial based, in part, on the alleged defects in the indictment. The
court overruled those motions.
Bartley continues to argue on appeal that the indictment was inadequate
because it gave him "no notice whatsoever of the dates he was alleged to have
committed the offenses." The Commonwealth argues that the indictment, as
supplemented by the Commonwealth's provision of the audio tape and the
October 31, 2014 letter, was sufficient.
[An] indictment or information shall contain, and shall be
sufficient if it contains, a plain, concise and definite statement of
the essential facts constituting the specific offense with which the
defendant is charged. It need not contain any other matter not
necessary to such statement, nor need it negative any exception,
excuse or proviso contained in any statute creating or defining the
offense charged.
Kentucky Rule of Criminal Procedure (RCr) 6.10(2).
The sufficiency of an indictment is measured by two criteria under
the Due Process Clause: first, it must "sufficiently apprise a
defendant of the criminal conduct for which he is called to
answer;" second, the indictment and instructions together must
6
provide adequate specificity so as to allow the defendant to "plead
acquittal or conviction as a defense" against future indictment and
punishment for the same offense.
Alford v. Commonwealth, 338 S.W.3d 240, 248 (Ky. 2011) (citations omitted).
The indictment herein was bare bones, containing only the specific
crimes charged and the range of dates within which the offenses occurred.
However, the Commonwealth supplemented the indictment with the recording
of Regina's statement and the October 31, 2014 letter to Bartley's counsel. For
counts one, two, and three the October 31, 2014 letter provided details
regarding the locations where each offense occurred, a narrower time-frame for
when each offense occurred, and what specific activities took place.
Furthermore, for counts one and two the Commonwealth provided information
regarding what clothes Regina and Bartley were wearing. For count four, the
correspondence provided details regarding where the offense occurred and
what activities took place; however, the Commonwealth did not provide a more
specific time frame. These details were sufficient to apprise Bartley of the
offenses with which he was charged and to permit him to plead prior conviction
should he be charged with the same offense in the future. Therefore, the trial
court did not err when it refused to dismiss the indictment.
B. The Trial Court Did Not Err When It Granted the Commonwealth's
Motion to Amend the Indictment.
The court may permit an indictment, information, complaint or
citation to be amended any time before verdict or finding if no
additional or different offense is charged and if substantial rights
of the defendant are not prejudiced. If justice requires, however,
the court shall grant the defendant a continuance when such an
amendment is permitted.
7
RCr 6.16. Because RCr 6.16 is permissive, we review a trial court's order
permitting the Commonwealth to amend the indictment for abuse of discretion.
See Riley v. Commonwealth, 120 S.W.3d 622, 631-32 (Ky. 2003).
As noted above, the parties recognized before trial that the indictment
lacked specificity. In order to address this deficiency in the indictment, the
Commonwealth provided Bartley with two copies of Regina's taped statement
and correspondence setting forth details regarding each of the charges. When
asked by the court the morning of trial if it wanted to amend the indictment to
conform with that correspondence, the Commonwealth stated that it would
wait until testimony had been presented. It appears that the Commonwealth
believed that the testimony might differ somewhat from what was in the
correspondence, a belief that proved to be true with regard to how old Regina
was when one of the charged acts occurred. Therefore, the Commonwealth did
not move to amend the indictment until after the close of all evidence, when it
submitted draft jury instructions. 4
Initially, we note that Bartley does not argue that the amendment
resulted in different or additional charges being levied. Therefore, we do not
address that part of RCr 6.16.
Bartley does argue that the amendment prejudiced his "right[s] to
present a defense and . . . to confront the witnesses against him through
4 We note that the instructions submitted by the Commonwealth were
consistent with Regina's testimony and the amended indictment. Although unanimity
was not raised as an issue, the instructions in this case exemplify how to word
instructions to avoid unanimity issues.
8
effective cross examination." In support of this argument, Bartley states that
the amendment made it impossible to develop an alibi defense. However,
Bartley was aware of the charges against him and the general time frame when
the charged incidents occurred, and the Commonwealth took steps to advise
him more specifically what the charges entailed. Therefore, we discern no
prejudice to any of Bartley's substantial rights by amendment of the indictment
to conform with the evidence.
C. The Trial Court Did Not Err When It Denied Bartley's Motion for a
Mistrial and Evidence of Uncharged Crimes and Other Bad Acts Does
Not Warrant Reversal.
Bartley complains that Regina's testimony about uncharged sexual acts,
other acts of physical abuse, and possible illegal drug use impermissibly
prejudiced him. He admits that he did not properly preserve the majority of
these alleged errors, which we address separately below.
1. Uncharged Sexual Acts Testimony on Direct Examination.
During direct examination, the Commonwealth asked Regina if anything
had ever happened between her and Bartley in her bedroom. She said that it
had and, when the Commonwealth asked her to describe what happened in
detail, she said that Bartley lay in bed with her, put his hand down her
panties, and rubbed her vagina. Regina stated that she was not sure how old
she was when this happened, but she believed she may have been eight.
During this portion of her testimony, Regina stated twice that Bartley did this
more than once, and Bartley did not object. Thus, Bartley did not properly
preserve any issues with regard to this testimony, and we examine its
9
admission for palpable error. RCr 10.26. To be palpable, an error must be "so
manifest, fundamental and unambiguous that it threatens the integrity of the
judicial process." Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).
Regina's "testimony falls within the exceptions for evidence offered to
prove intent, plan, or absence of mistake or accident . . . . [and] evidence of
similar acts perpetrated against the same victim are almost always admissible
for those reasons." Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002);
Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008). Thus, Regina's short
statements about uncharged sexual acts, made essentially in passing during
her testimony on direct examination, did not rise to the level of palpable error.
2. Uncharged Sexual Acts Testimony on Cross Examination.
-
On cross-examination, Bartley questioned Regina about the preceding
incident and Regina stated that she was seven or eight years old but that it
happened all the time. At that point Bartley's counsel asked to approach the
bench, objected, and made a motion for a mistrial arguing that Regina had
testified several times about uncharged acts. Thus, Bartley properly preserved
issues with regard to Regina's third statement about uncharged sexual acts.
In response to Bartley's objection and motion, the Commonwealth noted
it had not solicited Regina's first two statements about uncharged sexual acts
and that Bartley had not objected. The court noted that Regina's testimony
about uncharged sexual acts was not proper; however, it also noted that
Bartley's objection was not timely and that Regina's testimony was not grounds
10
for a mistrial. The court then admonished the Commonwealth to tell Regina to
refrain from making any similar statements, which Regina did.
The extraordinary relief of a mistrial will not be granted absent "a
manifest necessity." Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky. 2002).
A party claiming that the trial court erroneously denied a motion for a mistrial
must show that any "prejudicial effect could be removed in no other way." Id.
We review a trial court's decision to declare or deny a mistrial for abuse of
discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). We
discern no abuse of discretion here.
Regina's testimony on cross-examination about uncharged sexual acts
was, like her testimony on direct, spontaneous and not in direct response to
questioning. Bartley did timely object to this testimony; however, by the time
he did so, the jury had already heard the complained of testimony twice, and
Bartley had already suffered any prejudice he was going to suffer. Therefore,
Regina's testimony during cross-examination was harmless error.
Furthermore, Bartley, who did not ask the court to admonish the jury, has not
shown how an admonition would not have removed any prejudicial effect from
Regina's cross-examination testimony. Therefore, the trial court did not abuse
its discretion when it denied Bartley's motion for a mistrial.
3. Physical Abuse.
Bartley's defense was that Regina was fabricating her allegations of
abuse. In support of that defense, Bartley noted during his opening statement
that, despite being involved with social workers, teachers, and counselors for
11
years, Regina did not disclose the abuse until she was facing criminal charges. 5
TorefuthapinBley'sdf,thComnwealskdRgif
Bartley had ever told her not to tell anyone about the sexual abuse. Regina
said, "Once I knew, like he said that if I did tell somebody, I probably wouldn't
be here." She also stated that she had not told anyone because Bartley had hit
her, her siblings and step siblings; that he scared her and the other children;
and that he had nearly beaten her brother to death.
On cross-examination, Bartley asked Regina about what she had told her
teachers. She testified that she had not told them about any sexual abuse but
that she had told them Bartley had hit her because she had "bruises and
marks." Bartley did not object to any of Regina's testimony about physical
abuse. Because Bartley did not object, we review the admission of this
evidence for palpable error. RCr 10.26.
Bartley argues that evidence of his physical abuse was not admissible
because it was not probative of whether the sexual abuse and sodomy
occurred. According to Bartley, the Commonwealth only introduced this
evidence to "tip the scales in [Regina's] favor." Setting aside the fact that nearly
all evidence is introduced in order to tip the scales in favor of the party offering
it, we discern no error, let alone palpable error.
Bartley is correct that evidence of his physical abuse of Regina and other
members of his family would generally be inadmissible if offered only to prove
5 It appears from the record that the criminal charges related to a physical
altercation between Regina and her mother.
12
his bad character or criminal predisposition. See Alford v. Commonwealth, 338
S.W.3d 240, 250 (Ky. 2011). Such evidence "is admissible only if probative of
an issue independent of character or criminal predisposition, and only if its
probative value on that issue outweighs the unfair prejudice with respect to
character." Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992).
Bartley specifically raised as an issue Regina's failure to tell anyone
about the sexual abuse and sodomy. Evidence of his physical abuse was
relevant and admissible to explain why Regina waited several years to tell
anyone, an issue independent of character and criminal predisposition.
Therefore, we discern no error in the admission of evidence of Bartley's physical.
abuse.
4. Drug Use.
When the Commonwealth questioned Regina about the incident in the
office, she testified that Bartley called her into the house and asked her to get
something from the office. She could not remember what Bartley wanted her to
get but thought it might have been "pain pills." Bartley did not object. He now
argues that this testimony was impermissible evidence of bad acts, presumably
because the testimony implied that the "pain pills" were illegal. We disagree.
Because Bartley did not object, we must determine whether the
admission of this evidence, if error, rose to the level of palpable error. RCr
10.26. Regina did not characterize the pills Bartley wanted her to get as being
illegal substances. She merely stated that he wanted her to get pain pills,
which could include both legally and illegally obtained substances. Thus, even
13
if this testimony was erroneously admitted, its admission did not threaten "the
integrity of the judicial process," Baumia, 402 S.W.3d at 542, and was not
palpable error.
D. The Court Did Not Err When It Permitted Habit Testimony.
During its case in chief, the Commonwealth called Keith Stratton,
Regina's foster father. Stratton testified that Regina was apprehensive when
she first came to live with his family, fearing that someone might try to get her.
When the Commonwealth asked Stratton if he knew who Regina feared, he
stated that Regina never told him but that she had discussed it with his wife.
Bartley, without explanation, objected and the Commonwealth abandoned this
line of questioning. The Commonwealth then asked Stratton whether,
"[c]omparing [Regina] to all the other children that you've had placed in your
home, how would you, with her apprehension, to use your word, how would
you describe [Regina], compare her?" Stratton responded that most foster
children are apprehensive but that Regina "was the most apprehensive child
that I've had to this point."
Bartley argues that this testimony was impermissible "flip habit
evidence" that Regina acted differently from other foster children because she
had been sexually abused by Bartley. According to Bartley, permitting such
testimony, "remove[ed] the jury from its historic function of assessing
credibility." Newkirk v. Commonwealth, 937 S.W.2d 690, 696 (Ky. 1996).
Because Bartley did not raise this issue before the trial court, it is unpreserved,
and we review it for palpable error. RCr 10.26.
14
In support of his argument, Bartley cites Sanderson v. Commonwealth,
291 S.W.3d 610 (Ky. 2005) which sets forth the general rule against Child
Sexual Abuse Accommodation Syndrome (CSAAS) testimony:
[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 613 (emphasis in original) (citing Kurtz v. Commonwealth, 172 S.W.3d
409, 414 (Ky. 2005)).
We are not convinced that Stratton's testimony reached the level of
CSAAS testimony, nor are we convinced that its admission constituted
manifest injustice. This Court found reversible error in Sanderson where a
clinical psychologist testified that a child's addition of new allegations of sexual
abuse was normal and in Newkirk where a psychiatrist testified that
recantation was a common occurrence among sexually abused children. Both
cases involved testimony by medical professionals offered to prove sexual abuse
had occurred because the children acted like other sexually abused children.
As the Court noted in Newkirk, such testimony does not account for the
possibility that "other children who had not been similarly abused might also
develop the same symptoms or traits." Id. at 690-91 (citing Lantrip v.
Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986)).
Stratton's testimony poses no such problem for seven reasons. First,
Stratton was not a medical professional, and his testimony did not carry the
weight assigned to such professionals. Second, Stratton was not comparing
15
Regina to other sexually abused children; he was comparing her to other foster
children. Third, Stratton did not state that Regina was apprehensive because
she had been sexually abused or even state that sexually abused children act
apprehensively. Fourth, the jury had heard testimony that Bartley and
Regina's mother had been engaged in a lengthy and acrimonious divorce and
custody battle. Fifth, Regina had been treated medically and psychologically
on an ongoing basis for issues related to that custody battle. Sixth, Regina had
been arrested and charged with assaulting her mother. Seventh, Regina, who
had been released from juvenile detention before being placed with the
Strattons, stated that facility was "the worst place ever, except for having to
live" with her mother.
Certainly, the jury could have inferred that Regina's apprehension was
the result of Bartley's sexual abuse; however, it could have as easily inferred
that her apprehension was the result of her parents' ongoing legal battle, her
own psychological and legal difficulties, and her fear of being returned to her
mother's care or to juvenile detention. Therefore, we cannot say that Stratton's
testimony resulted in manifest injustice or that it rose to the level of palpable
error.
E. Bartley Was Not Entitled to a Directed Verdict.
On a motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purposes of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
16
testimony. 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 the defendant is entitled to a directed
verdict of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186 at 187 (Ky. 1991).
Bartley argues that the trial court should have granted his motions for
directed verdict because Regina's testimony was "uncorroborated and
inherently improbable." In support of his argument, Bartley cites Garrett v.
Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001). In Garrett, the victim testified that
her father began sexually abusing her at the age of six and continued abusing
her for six years. Id. at 8. The victim's testimony was partially corroborated by
her mother, a friend, and a neighbor who observed Garrett acting in a
compromising way toward the victim. Id. at 8-9. This Court noted that the
victim's testimony "occasionally contradicted her previous statements to the
police" and that the trial court, based on those contradictions, granted
Garrett's motion for directed verdict as to several of the charges. Id. at 10.
However, the trial court did not direct a verdict on all of the charges, and this
Court affirmed the trial court's determinations. Id. In doing so, this Court
stated that "[c]orroboration in a child sexual abuse case is required only if the
unsupported testimony of the victim is '. . . contradictory, incredible or
inherently improbable." Id. (Citations omitted.)
17
Bartley argues that this was a classic case of "he said/ she said," with
Regina testifying that Bartley abused her, with no corroborating evidence, 6
andBrtleysifghnoabuecrd.BtlynoshaRegi
testified on direct examination that she had not told anyone of the ongoing
abuse, but testified on cross-examination that she had told her mother about
the abuse during the course of an argument. Bartley argues that this
inconsistent testimony, coupled with the fact that no one witnessed any sexual
abuse during a time when Regina and the family were "under a microscope due
to the divorce and custody battle" rendered her testimony incredible and
inherently improbable. We disagree.
It is fair to characterize Regina's testimony about when she disclosed the
abuse as inconsistent, and Bartley was free to attack her credibility based on
that testimony. However, Regina's testimony about the specific acts of abuse
was not inconsistent. It contained detailed descriptions of what occurred,
where each incident occurred, and, for two of the incidents, what she and
Bartley were wearing. This evidence was as specific as, if not more specific
than, evidence in other similar cases, and any inconsistency about when
Regina disclosed the abuse was not so severe as to render the remainder of her
testimony inherently improbable.
Furthermore, even with this partial inconsistency, the evidence, taken in
the light most favorable to the Commonwealth, was more than sufficient to
6 We note but will not further comment on the inconsistency of Bartley's
arguments that Stratton's testimony impermissibly bolstered Regina's testimony while
simultaneously arguing that there was no corroborating evidence.
18
support the trial court's finding that a reasonable jury could reasonably
conclude that Bartley committed the charged offenses. Therefore, we discern
no error in the trial court's denial of Bartley's motions for directed verdict.
IV. CONCLUSION.
For the foregoing reasons, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
19