Terry Souder, Appellant v. Commonwealth of Kentucky, Appellee (Kentucky 1986)

Summary

The court held that the evidence was insufficient to support convictions for first-degree sodomy and first-degree assault, requiring those charges to be dismissed. It also held that several out-of-court statements by the child, including statements to family members, a social worker, and statements reflected in medical records, were inadmissible hearsay; the remaining convictions were therefore reversed and remanded for further proceedings. Justice Wintersheimer, dissenting, would have affirmed the first-degree assault conviction and admitted the child's statements as spontaneous utterances.

Holding

Sufficiency of the evidence for first-degree sodomy. The evidence was insufficient to establish first-degree sodomy because the medical evidence did not prove deviate sexual intercourse involving a male sex organ and the victim's anus. The child's statement that the appellant hurt her with his finger did not establish the required statutory element.

Sufficiency of the evidence for first-degree assault. The evidence was insufficient to prove serious physical injury, an essential element of first-degree assault. The injuries were treated without subsequent treatment or permanent injury, and no evidence established a substantial risk of death, prolonged disfigurement, prolonged impairment of health, or prolonged loss of organ function.

Effect of the child's incompetency and unavailability on hearsay admissibility. The child's incompetency or unavailability did not automatically bar her out-of-court statements, but neither did it justify admitting statements that failed to satisfy a recognized hearsay exception.

Admissibility of the child's statements to family members and the social worker. The child's statements to her grandmother and mother were too remote and unreliable to qualify as spontaneous statements or excited utterances, and the social worker could not testify to the child's investigative interview or related nonverbal demonstrations under a recognized hearsay exception.

Use of hearsay within medical records and effect on the remaining convictions. The physicians could not testify to statements in medical records identifying the appellant as the wrongdoer because those statements were hearsay within hearsay and were not information necessary for diagnosis or treatment. The improper hearsay required reversal of the first-degree criminal-abuse and first-degree sexual-abuse convictions.

Summary

Holding

Cited authorities