        IMPORTANT N-0 TICE
       NOT-TO BE~PUBLISMED-OPINION




THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED," PURSUANT TO THE RULES OF
ClVIL PROCEIlURE PROMULGATED. BY THE
SUPREME COURT, CR 76.28 (4) (c)., THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
                                                        RENDERED: DECEMBER 21, 2006
                                                               NOT TO BE PUBLISHED

                 'Suprsms evurf of ~i fif"

                                    2005-SC-000929-MR



JIMMY RAY SPARKMAN                                                               APPELLANT


                     APPEAL FROM PENDLETON CIRCUIT COURT
V.                     HONORABLE ROBERT McGINNIS, JUDGE
                                NO . 04-CR-0059


COMMONWEALTH OF KENTUCKY                                                          APPELLEE



                       MEMORANDUM OPINION OF THE COURT

                                         AFFIRMING


       A Pendleton Circuit Court jury convicted Jimmy Ray Sparkman of four counts of

first-degree sexual abuse and one count of first-degree sodomy. Sparkman committed

all the offenses against J .S .W ., beginning when she was eight years old and continuing

until she was 11 years old. In accordance with the jury's recommendation, the trial

court sentenced Sparkman to a total of 24 years in prison (one year on each count of

first-degree sexual abuse ; and 20 years on the single count of first-degree sodomy to

run consecutively) . Thus, he appeals to this Court as a matter of right. Ky. Const. §

110(2)(b) .

       Sparkman presents four issues for our review. First, he contends that --

although not preserved -- the trial court committed palpable error, which affected his

substantial rights, when it allowed the investigating officer, Detective Mullikin, to testify
that sexual abuse crimes are the number one crime that he and other officers

investigate ; and manifest injustice resulted from the error. Second, he argues that the

trial court erred in allowing Detective Mullikin to testify that he found the victim and her

family to be bright, articulate, very well-spoken and up-front when they spoke with him

and that the victim was emotional, but she made a very good statement. Third, he

contends that -- although not preserved -- the trial court committed palpable error,

which affected his substantial rights, when it allowed Detective Mullikin to state that he

presented the case to the grand jury; and manifest injustice resulted from the error.

Fourth, he argues that -- although not preserved -- the trial court committed palpable

error, which affected his substantial rights, when it allowed the victim's mother to testify

as to Sparkman's other acts; and manifest injustice resulted from the error.

       On the issue of testimony of how Detective Mullikin found the victim and her

family when they spoke with him, which was the only issue that was properly preserved,

we find no error. And on the three remaining issues that were not preserved, we find no

palpable error. Accordingly, we affirm the judgment of the Pendleton Circuit Court .

                            l. Facts underlying the charges

       The victim in this case is J.S .W. Sparkman was J .S .W .'s stepfather, although he

and J .S.W.'s mother, Cory Bowman, are no longer married .

       J.S .W . alleged that beginning in the summer of 2001 (when she was eight years

old), Sparkman wanted her to play doctor with him in the master bedroom of the

family's home . Playing doctor consisted of Sparkman requesting -- under the pretext

that his doctor had ordered this -- that J.S .W . apply lotion and baby powder to his

surgical scars . The scars resulted from treatment for a recent heart attack and a

quadruple bypass operation . Two of the scars were located in his groin area . During
the course of these sessions, Sparkman would get an erection and ejaculate . On at

least two occasions when Sparkman and J.S .W . were in the master bedroom, J .S .W .'s

brother, A.J .S., walked in on them and observed J.S .W . standing by the bed and

Sparkman quickly pulling the covers over himself in the bed.

       In addition to having J .S.W. masturbate him, Sparkman subjected J.S .W. to the

following sexual contact from the summer of 2001 until June of 2004: he asked her to

shave his groin area on one occasion, and she did; he digitally penetrated her; he told

her to perform oral sodomy on him, and she did ; and he touched her breast when she

was putting lotion and baby powder on his scars .

       The following individuals testified at trial on behalf of the Commonwealth : A.J .S.,

Detective Mullikin, Cory Bowman, D.M.S ., who is J .S.W.'s younger sister, and J.S .W.

And the following individuals testified on behalf of Sparkman : his sister, Rita Peters; his

friend, Tim Higgins ; J .S.W .'s friend, April Higgins ; and Sparkman .

       We will begin our analysis of the issues with the only preserved issue and then

move to the three unpreserved issues.

 11. Did the trial court err in admitting Detective Mullikin's testimony that he found
   the victim and her family to be bright, articulate, very well-spoken and up-front
when they spoke with him and that the victim was emotional, but she made a very
                                    good statement?

       The trial court did not abuse its discretion when it admitted this testimony.

A. Standard of review

      Whether to admit the testimony was within the trial court's discretion . See Partin

v. Commonwealth , 918 S .W.2d 219, 222 (Ky. 1996). "The test for abuse of discretion is

whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles." Goodyear Tire and Rubber Co. v. Thompson , 11 S .W .3d 575,
581(Ky. 2000).

B. Admissibility of testimony

         Sparkman correctly argues that generally a witness may not vouch for the

truthfulness of another witness. See Stringer v. Commonwealth , 956 S .W .2d 883, 888

(Ky. 1997) . And, according to Sparkman, couching Detective Mullikin's testimony in

terms of "demeanor' does not abrogate its improper nature .

         Upon review of the entirety of Detective Mullikin's testimony, however, we

perceive these comments as his observation of her demeanor -- just as the trial court

did -- and his description of the victim and her family members and their level of

cooperation . He did not state his opinion that they were truthful, although we

acknowledge that his observations were generally favorable . That his description was

favorable, however, does not make it inadmissible . Moreover, this Court has held that a

witness's description that the victim was a bright child did not constitute improper

bolstering of the victim's testimony. See Hardy v. Commonwealth , 719 S .W.2d 727,

729 (Ky. 1986) .

         The victim's behavior toward others when disclosing the sexual abuse was

relevant . Indeed, defense counsel elicited testimony from two defense witnesses as to

J .S .W.'s demeanor when discussing the abuse with them . One witness said that she

was calm, and the other said that she was smiling and seemed happy. Just as it was

not improper for those witnesses to testify to specific facts that tended to discredit

J.S.W .'s testimony, it was not improper for Detective Mullikin to testify to specific facts,

such as those evidencing J .S .W.'s emotional injury, that tended to prove that she was

sexually assaulted. See Dickerson v. Commonwealth , 174 S.W .3d 451, 471 (Ky.

2005).
    111 . Although not preserved, did the trial court commit palpable error, which
   affected Sparkman's substantial rights, when it allowed Detective Mullikin to
   testify that sexual abuse crimes are the number one crime that he and other
     officers investigate ; and, if so, did manifest injustice result from the error?

        The trial court's admission of this testimony did not constitute palpable error.

A . Standard of review

        RCr 10.26 applies in the case of unpreserved errors . The rule is as follows :

               A palpable error which affects the substantial rights of a party may
               be considered by the court on motion for a new trial or by an
               appellate court on appeal, even though insufficiently raised or
               preserved for review, and appropriate relief may be granted upon a
               determination that manifest injustice has resulted from the error.

       And under KRE 103(e), we review unpreserved claims of evidentiary error for

palpable error. "A finding of palpable error must involve prejudice more egregious than

that occurring in reversible error, and the error must have resulted in `manifest

injustice ."' Ernst v. Commonwealth, 160 S .W .3d 744, 758 (Ky. 2005) (internal citations

omitted) .

B. Palpable error analysis

       The specific testimony at issue was as follows :

              Q: Have you had occasion to investigate sex offenses?
              A. Yes.
              Q. And have any of those investigations included -- involved
                 children?
              A. Yes, they have .
              Q. Any idea as to how many of those cases -- how many cases of
                 sex abuse you've investigated which involve children?
              A. I cannot put a number on it because right now sexual abuse
                 crimes is [sic] probably the number one thing that we
                 investigate . That's what keeps us busy. Again, just numerous;
                 I don't know how many .

       Sparkman's trial counsel did not object to this testimony. Thus, the error is not

preserved .
        Sparkman argues that this testimony served no purpose other than to inform

jurors that child sex abuse was rampant and taking up much of law enforcement's time .

 Moreover, Sparkman contends that such testimony constituted the efforts of the

prosecution to place upon the jury the burden of doing what is necessary to protect the

community from this rampant child sexual abuse .

       To the contrary, we view this exchange in context as the prosecutor's attempt to

lay the foundation for the fact that there would be no medical evidence in this case, a

point that was discussed by both the prosecution and the defense in voir dire. This line

of questioning pertained to the specific training and experience that the officer had in

investigating the type of crime involved in this case, the way in which the investigations

typically proceed, and the way in which the investigation proceeded in this case .

       While there is little, if any, relevance in the detective's comment that sexual

abuse crimes keep law enforcement busy to the ultimate issue of whether Sparkman

sexually abused J .S.W ., we do not find that the admission of this testimony constituted

palpable error .

    IV. Although not preserved, did the trial court commit palpable error, which
   affected Sparkman's substantial rights, when it allowed Detective Mullikin to
     state that he presented the case to the grand jury ; and, if so, did manifest
                           injustice result from the error?

       The trial court's admission of this testimony did not constitute error, palpable or

otherwise .

       As this is another unpreserved claim of evidentiary error, the standard of review

that is set forth in the previous section applies here .

       Sparkman argues that in a criminal case, it is critical that jurors be able to put

away from their minds all the suspicion that arises from the indictment and present
situation of the accused and reach their conclusions about guilt or innocence solely on

the basis of the proof adduced at trial . In support of this contention, Sparkman cites

Taylor v. Kentucky , 436 U.S . 478, 98 S . Ct. 1930, 56 L. Ed 2d 468 (1978).

        We cannot agree, however, that Detective Mullikin's comment that he presented

the case to the grand jury violates Taylor. In Taylor, the trial court failed to instruct the

jury that the law presumes a defendant to be innocent of a crime and that the

indictment, previously read to the jury, was not evidence to be considered against the

defendant, despite defendant's request for these instructions . See id. at 480-81 . Nor

did the trial court convey the substance of the requested instructions in its charge to the

jury. See id . at 481 . The United States Supreme Court granted certiorari and held that

on the facts of the case "the trial court's refusal to give petitioner's requested instruction

on the presumption of innocence resulted in a violation of his right to a fair trial as

guaranteed by the Due Process Clause of the Fourteenth Amendment ." Id . at 490 .

       In this case, the trial court instructed the jury on at least three occasions during

the trial that the indictment did not constitute evidence against Sparkman . Moreover,

the jury instructions included the following instruction :

               Instruction No . 4
               Presumption of Innocence

               The law presumes a defendant to be innocent of a crime and the
               Indictment shall not be considered as evidence or as having any
               weight against him . You shall find the Defendant not guilty unless
               you are satisfied from the evidence alone and beyond a reasonable
               doubt that he is guilty . If upon the whole case you have a
               reasonable doubt that he is guilty, you shall find him not guilty.

       The detective's comment was not improper under Ta for and certainly did not

undo the trial court's instructions . Under these circumstances, we find no error. Thus,

there can be no palpable error.
     V. Although not preserved, did the trial court commit palpable error, which
   affected Sparkman's substantial rights, when it allowed the victim's mother to
  testify as to Sparkman's other acts ; and, if so, did manifest injustice result from
                                      the error?

       The trial court's admission of this testimony did not constitute error, palpable or

otherwise .

       As this is another unpreserved claim of evidentiary error, the standard of review

that is set forth in Section III applies here .

       Sparkman complains of the following testimony given by the victim's mother,

Cory Bowman, on cross-examination by his counsel :

               Q. After his [Sparkman's] heart attack and his surgery -- well,
                  immediately after his surgery -- was he bedridden for a period of
                  time?
               A. No. He come [sic] straight home and actually got into a fight
                  with a neighbor -- the day after -- knocked him off the porch
                  after he had his surgery .

       Sparkman argues that this testimony was inadmissible under KRE 404(b) as

Bowman's response reflected negatively on his character and suggested that he had a

criminal or bad disposition . We disagree . While evidence of other acts is not

admissible under KRE 404(b) to prove the character of a person in order to show action

in conformity therewith, it may be admissible if offered for some other purpose.

       Here, Cory Bowman, who was Sparkman's wife at the time he came home from

the hospital following the operation, gave this answer in response to defense counsel's

question, which he likely asked to establish that Sparkman was bedridden after his

surgery and incapable of the alleged sexual abuse. Bowman answered the question,

and then went on to explain . She offered this evidence to demonstrate that Sparkman

was not bedridden after his surgery.

       Sparkman does not argue that Bowman's answer was unresponsive .

                                                  -8-
Consequently, "[o]ne who asks questions which call for an answer has waived any

objection to the answer if it is responsive." Estep v. Commonwealth , 663 S .W .2d 213,

216 (Ky. 1983).

         Under these circumstances, we find no error. Thus, there can be no palpable

error.

         We affirm the judgment of the Pendleton Circuit Court .

         All concur


COUNSEL FOR APPELLANT :

Donna L. Boyce
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky
Room 118 Capitol Building
Frankfort, KY 40601

Jeffrey A . Cross
Assistant Attorney General
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601
