finding that the “thighs” could be considered an “intimate part” of the body
How later courts described this case
- finding that the “thighs” could be considered an “intimate part” of the body
- “We first observe . . . that sexual abuse in the first degree is a lesser-included offense of both rape in the first degree and sodomy in the first degree . . . . The instruction, couched in general terms of ‘sexual contact’ without differentiating the act from those acts constituting rape and sodomy, permitted the jury to find Johnson guilty twice for the same act, e.g., intercourse constituting rape and intercourse constituting sexual contact and, therefore, sexual abuse.”
- "[T]he indictment here ought to have been amended (to be more accurate, it ought to have been more carefully drafted), but the failure to amend was unquestionably harmless."
- "[Tlhe indictment here ought to have been amended (to be more accurate, it ought to have been more carefully drafted), but the failure to amend was unquestionably harmless.”
Written by the judges who cited it.
The opinion
REYNOLDS, Justice,
dissenting.
Respectfully, I dissent. A New Year’s Eve party comprised principally of juveniles disintegrated, in part, into a booze and sexual melee with one principal 15-year-old female victim. The multitude of onlookers, if not participants, supplied an abundance of testimony as to the series of occurrences, as related in the majority opinion.
Frankly, the record contains errors, but they are without prejudicial effect. The testimony of Dana Hardy, the clinical psychologist, may be fairly analyzed, in light of this entire record, as being harmless error. The victim and every individual who made out-of-court statements, were called and testified at trial. Each was subject to cross-examination. Hardy’s testimony was, at most, cumulative and therefore harmless. RCr 9.24. Any rationale for excluding hearsay was lacking in this case since the purposes for exclusion were not present. See Lawson, Kentucky Evidence Law Handbook, 2d ed., § 8.0 (1984). In this case there is no need to condemn such an error; it is quite frankly a harmless one. See Lovell v. Commonwealth, Ky.App., 695 S.W.2d 429 (1985).
Plainly, the victim and her two friends were vigorously cross-examined and the jury had an opportunity to observe their demean- *279 or during their testimony. Shonda testified that on the morning of January 1, 1990, she told the victim that the victim had sexual intercourse with Gargus. In addition, Chris testified that he saw Johnson and another boy have intercourse with the victim the night of the New Year’s Eve party. That part of the trial testimony of Hardy was cumulative of the witnesses other than the victim and consequently even if Hardy’s testimony was hearsay, any error was harmless. RCr 9.24. Cf. Summitt v. Commonwealth, Ky., 550 S.W.2d 548 (1977).
Also, I respectfully part company with the majority and would find the testimony of the victim to be harmless. Upon direct examination the prosecutor inquired of the victim when she learned about the appellant’s sexual assault. The response was that she had heard from her friend, Shonda. This, in part, was derived from second-hand information, but the acute basis for admission of this testimony is that it was not offered either for the truth of the matter asserted — that is, rape committed by the appellant — but to demonstrate how and when this victim became aware of the sexual assault and the reason for her following action of telling both her mother and the police. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 541 (1988); Preston v. Commonwealth, Ky., 406 S.W.2d 398, 401 (1966).
This harmless error is rendered more harmless as the victim, the friend Shonda, and each individual who witnessed the offenses were present for trial and testified. Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612, 617 (1992). It is suggested that a level playing field approach would disclose that there is not a substantial possibility that the result would have been different if the evidence had been excluded. RCr 9.24; Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).
It was not reversible error to deny defendant’s request to instruct the jury on the offenses of sexual misconduct and third-degree sexual abuse. A jury is to be instructed according to the evidence. Commonwealth v. Sanders, Ky., 685 S.W.2d 557 (1985). There is no absolute requirement for an instruction on a lesser included offense in every instance. There is no requirement if the evidence clearly points to only one conclusion, and that being that the accused may only be guilty of one offense. Payne v. Commonwealth, Ky., 656 S.W.2d 719 (1983).
Reed v. Commonwealth, Ky., 738 S.W.2d 818 (1987) does not support the giving of a lesser included offense instruction under any stretch of the imagination applicable to the facts of this case. Johnson had denied the acts and, therefore, an instruction on sexual misconduct was not appropriate. One should not be unaware that the prosecutor charged Johnson with engaging in sexual intercourse with the victim, who was incapable of consent because she was physically helpless — not because of her age. The evidence presented related to the victim’s incapacity to consent to sexual acts as being due to physical helplessness rather than to age. Denial of the requested instruction which was not supported by the evidence, did not constitute error. Commonwealth v. Sanders, 685 S.W.2d 557 .
The error in regard to a misdemeanor instruction on second-degree wanton endangerment and menacing was harmless. Although appellant was found guilty of the second-degree wanton endangerment misdemeanor, the imposition of sentence was, by the agreement of all parties, to run concurrent with the felony sentence. The error was by agreement and law rendered harmless.
I would affirm the judgment of conviction.
SPAIN and WINTERSHEIMER, JJ., join in this dissent.