Colvard v. Commonwealth

309 S.W.3d 239 (2010)

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Nature of the Case

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Facts

D allegedly sexually assaulted two girls, D.J. and D.Y., in their bedroom. D.J. and D.Y. were six and seven years old, at the time of the events. D knew the children because he lived in the same apartment complex as them, and was engaged to marry their grandmother. The grandmother ended the engagement when she learned that D was convicted of attempting to rape a ten-year-old girl in 1994. D.J. and D.Y. told their mother that they had just been sexually assaulted by D. The girls were medically examined and interviewed by several medical professionals. The medical examinations turned up no DNA or other physical evidence connecting D to the crime. The examinations were not inconsistent with the girls' allegation of sexual assault. A jury trial was conducted. Jennifer Polk, Dr. Cole Condra, and Dr. Lisa Pfitzer are medical personnel who testified at trial that the victims identified D as the perpetrator of the crimes. Polk was allowed to testify that the first child to whom she spoke said that 'Fred from number seven [D] . . . stuck his 'dick' in her.' Polk also testified that the second child to whom she spoke told her, in substance, that D had 'hurt' her anus. D timely objected. Dr. Condra testified from notes made by the nurse when the children were initially admitted to the hospital for evaluation. Dr. Condra testified that D.J. told the triage nurse that Dt sexually abused her. He also testified that D.J. told the nurse that 'Fred has been f***ing her, putting his weenie in her private parts.' Dr. Condra also testified that D.J. and D.Y. informed him that they were sexually assaulted that day 'and over the past months.' D objected. Dr. Pfitzer, a treating pediatrician testified that she saw the children as a result of sexual abuse allegations made against 'a neighbor' named 'Fred' and that the allegations involved vaginal and anal penetration. Dr. Pfitzer also testified that D.J.'s mother reported that D.J. told her that 'Fred was f***ing us.' This Court has recognized an exception to the identification rule in cases where a family or household member is the perpetrator of sexual abuse against a minor of that household. In Renville, the Court made this exception to the general rule that physicians rarely have reason to rely on statements of identity because of two important aspects involved in the case: (1) the physician was not merely diagnosing and treating the child/patient for physical injuries but psychological injuries as well, and (2) the abuser was a family, household member. The Commonwealth, citing the Court of Appeals' unpublished opinion Plotnick v. P argues that this exception applies since the children may have considered D a member of the family or household, as D had only recently ended his relationship with their grandmother. D was convicted and appealed.