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RENDERED: APRIL 3, 2009; 10:00 A.M. NOT TO BE PUBLISHED CORRECTED: SEPTEMBER 18, 2009; 10:00 A.M.

Commonwealth of Kentucky Court of Appeals
NO. 2006-CA-001166-MR GREGORY HINES APPELLANT

v.

APPEAL FROM CASEY CIRCUIT COURT HONORABLE JAMES G. WEDDLE, JUDGE ACTION NO. 02-CR-00075

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: DIXON, KELLER, AND WINE, JUDGES. KELLER, JUDGE: On August 26, 2002, Greg Hines was indicted by the Casey County grand jury for one count of first-degree rape for having sexual intercourse with R.C.,1 aged fifteen (15) years, through the use of forcible compulsion. The case proceeded to trial and the jury found Hines guilty of first-degree rape and
1

Due to the age of the victim, this Court will identify her only by her initials.

recommended a sentence of 13 and one half years' imprisonment. Hines was sentenced on May 27, 2003, to ten (10) years in prison to run consecutively with the sentence he was already serving on another felony statutory rape case. On May 30, 2006, Hines sought a belated appeal of his conviction. This Court ordered an evidentiary hearing to be conducted on the issue of whether or not Hines had waived his right to an appeal. At the close of the hearing, the trial judge recommended that the appeal be granted. This Court then ordered that this matter proceed on April 24, 2007. We now reverse and remand. FACTS On July 12, 2002, R.C. was invited by her friend, Kim Brown, to spend the night with her at Kim's home.2 Kim was Hines's girlfriend at that time. Kim went with Hines's grandmother, Maye Gillock (Maye), to pick up R.C. and drive her to the party that was being held at Hines's home, a trailer. Hines's trailer was located in very close proximity to his mother's and grandmother's trailers. Once she arrived at the party, R.C. put her belongings in Maye's trailer and then joined the party. Witnesses testified that R.C., Hines, and Kim, were drinking alcohol and smoking marijuana. R.C. testified that she had two or three non-alcoholic Pepsi-Colas that evening, all served to her by Hines. She testified that she did not smoke marijuana, but admitted that she had consumed alcohol on previous occasions. As the party continued into the morning hours,
2

There was conflicting testimony as to whether R.C. knew they were going to Hines's party or to Kim's home initially.

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R.C. claimed she felt dizzy and went to Maye's trailer where she attempted to use the phone to call her mother. She alleged that Hines then pulled the phone from the wall. She was given some bedding and directed by Maye to a back bedroom. Later, Hines and Kim came into that bedroom and argued about an earlier fist fight between Hines and his uncle. R.C. said the argument became violent when Hines grabbed Kim by the neck and shoved her from the bedroom. According to R.C., Hines then tied the bedroom door shut by using a rope to secure the bedroom door to the closet door handles. R.C. testified that Hines removed her clothing, choked her and hit her in the chest knocking her on the bed. He then raped her without using a condom. R.C. was unsure if Hines ejaculated. R.C. said she resisted and managed to kick over a mirror which made a noise. During the attack R.C. stated that Hines told her "you're so pretty. You're making me do this to you just like the other girl did. Go ahead and tell, tell them. I'm already going to jail over one." R.C. testified Hines only stopped when Maye heard the noise made by the mirror and opened the door, whereupon Hines attempted to hide. R.C. said she was then driven to her home by Maye, and that as they left, Hines brandished an axe and threatened to kill R.C. should she tell anyone about the rape. We note that R.C. testified that she did not tell Maye about the rape on the drive to her home. After arriving home, R.C. told her mother what had happened. She was then taken to the hospital where she underwent a sexual assault examination. Blood samples were taken and both the doctor and nurse documented bruises to the -3-

front and side of R.C.'s neck, upper arms, and right inner thigh. Furthermore it was noted in the records that R.C.'s hymen was not intact, and that she stated that she had engaged in consensual sex prior to the rape, but not with Hines. The examination did not reveal the presence of semen. A pubic hair foreign to R.C. was discovered, but it was never compared to Hines or tested for DNA. A sample of R.C.'s blood was taken; but, no analysis was performed for alcohol content. The amount of the sample was deemed insufficient for testing by the forensic laboratory for drug content. During the trial, the prosecution sought to admit the hospital admission assessment record (hereinafter hospital record), excluding any mention of R.C.'s prior sexual behavior. Citing Kentucky Rules of Evidence (KRE) 412's prohibition regarding the admission of the victim's character and behavior in rape cases, the prosecution sought to exclude that portion of the hospital record that indicated R.C. had been sexually active prior to this event. Defense counsel objected, arguing that, if any portion of the hospital record was admitted, it should all be admitted. The court permitted the prosecution to submit the record into evidence but only after redacting that portion of the record that discussed R.C.'s prior sexual activity. Detective Hammond from the Kentucky State Police investigated the incident, and testified, at the behest of the prosecutor, that Hines would not voluntarily provide samples of his pubic hair for purposes of comparison. He further testified that Maye refused to allow him into her trailer when he had asked -4-

her permission at the police station. Hammond admitted under cross-examination that he failed to obtain a warrant or court order for any samples of Hines's hair, and did not photograph or otherwise investigate the crime scene at any time. Hammond also testified as to what R.C. told him had occurred at Hines's party. Both the emergency room doctor and nurse testified as to the examination, and to the statements R.C. made to each of them. However, neither was permitted to testify regarding R.C.'s prior sexual activity. R.C.'s mother testified as to what R.C. told her had happened. Hines's attorney did not object to the admission of any of the above "prior consistent statement" testimony. Furthermore, R.C.'s handwritten journal describing the incident was admitted into evidence and then read to the jury by R.C. at the behest of Hines's trial counsel. Witnesses for the defense included Hines, his mother and grandmother, Kim, and two young cousins who attended the party. The testimony of the defense witnesses chiefly indicated that R.C. was falling down drunk, bragged she was pregnant, and told others of a recent altercation with her boyfriend that had left the bruises noted by hospital staff. Kim testified that she had been with Hines the entire night, thus it was impossible for the rape to have occurred. Maye contradicted R.C.'s statement that a telephone had been torn from the wall in her home, and further averred that the closet doors in the bedroom R.C. claimed were tied with rope were sliding mirrored doors with no handles. Maye also testified that Detective Hammond had

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never requested her permission to enter her home. No photographs or diagrams of Maye's home were introduced by either the Commonwealth or the defense. Hines testified that he was 19 years old at the time, had three children, was on disability for diabetes, and was a convicted felon. He stated that he was exceedingly intoxicated and had passed out at some point during the party. Nevertheless, he stated that he was in control of his actions and that despite the large amount of marijuana and alcohol he had consumed, his memory of the night was intact. He engaged in fisticuffs with an uncle earlier in the evening and once that fight was finished he argued with Kim and then told Kim and R.C. to go home. He denied ever being alone with R.C.

ANALYSIS Hines assigns a number of errors regarding the admission of prior consistent statements made by R.C. through the witnesses noted above. He complains about the admission of the hospital record and argues that the attorney for the Commonwealth aggravated the error and then committed prosecutorial misconduct by telling the jury in closing argument that R.C.'s lack of a hymen was consistent with rape. Hines disputes the testimony by Hammond that he refused to give a pubic hair sample arguing that any refusal was privileged conduct that cannot be considered as evidence of criminality.

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Hines also argues numerous allegations of error which were not preserved by defense counsel during the trial. In fact, the only error properly preserved for our review is the admission of the hospital record with the statement of prior consensual sex by R.C. redacted. Because of the necessary distinction between preserved and unpreserved error in our analysis, we will address each standard of review as it arises. A. HOSPITAL ADMISSION ASSESSMENT FORM Hines raises several issues with regard to the hospital record, one of which he preserved, several of which he did not. This Court's standard of review for the admission of evidence is whether the trial court abused its discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. This error was preserved by defense counsel's objection to the prosecutor's request to introduce the hospital record in its redacted form i.e., without mention of R.C.'s statement regarding previous sexual encounters. Defense counsel argued that, if admitted, the hospital record should be introduced in its entirety. As to its general admissiblity, the court ruled that the hearsay record was admissible as a "business record"3 and further, pursuant to
3

Much is made by the appellant that the hospital record is not admissible as a business record under KRE 803(6), as R.C. was not under a business duty to report information to the nurse. While this is a correct statement of the law, no contemporaneous objection was made and the error does not rise to the level of palpable error. Furthermore, the document was not admissible pursuant to KRE 803(5) as the nurse never indicated that she had insufficient recollection, nor was the document offered by an adverse party. However, it is clear from the record that R.C.

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KRE 412, the notation regarding R.C.'s past sexual predisposition was to be redacted prior to admission. No mention was made by anyone as to the exception contained in KRE 412(b)(1)(A): Prohibition Regarding the Admission of the Victim's Character and Behavior in Rape Cases: (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) any other evidence directly pertaining to the offense charged. KRE 412(c)(1) outlines a procedure that the parties and the court must follow to determine admissibility of the evidence: (1) A party intending to offer evidence under subdivision (b) must: (A) file a written motion at least fourteen (14) days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
made the statements for the purpose of medical treatment or diagnosis, and they may have been admissible under the exception to the hearsay rule contained in KRE 803(4).

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(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. The above procedure was not followed by either party despite the fact that the court specifically referenced KRE 412 when making its ruling disallowing any mention of an alternate explanation of the state of R.C.'s hymen. Indeed, neither the defense nor the prosecution questioned the doctor regarding this finding presumably due to the trial court's admonition to stay away from the subject entirely. What is clear is the trial court was put on notice of the rule contained in KRE 106 by defense counsel. KRE 106 does not require that the entire recorded statement be admitted, but only so much thereof `which ought in fairness to be considered contemporaneously with it,' i.e., that portion which concerns the specific matter introduced by the adverse party. White v. Commonwealth, 292 Ky. 416, 166 S.W.2d 873, 877 (1942). The issue is whether `the meaning of the included portion is altered by the excluded portion.' Commonwealth v. Collins, Ky., 933 S.W.2d 811, 814 (1996). The objective of KRE 106 `is to prevent a misleading impression as a result of an incomplete reproduction of a statement.' Id. (quoting R. Lawson, The Kentucky Evidence Law Handbook

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