author: Justice FITZGERALD.

text:
    In the Interest of J.M. and L.M., Minor Children.
    No. 05-04-00306-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 28, 2005.

      CASA, McKinney, Loretta A. Keller, Attorney At Law, Plano, for Ad Litem.
    Jimmy L. Vemer, Jr., Verner & Brum-ley, Dallas, for Appellant.
    Alyson Marie Dietrich, Asst. Criminal District Atty., and M. Emily Johnson-Liu, McKinney, for Appellee.

      John R. Roach, Collin County District Atty., John A. Stride, Asst. District Atty., McKinney, for the State.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

M.M. (Father) appeals the trial court’s judgment terminating his parental rights to his children, J.M. and L.M. Father brings two issues on appeal asserting (1) the State was equitably estopped from terminating his parental rights and (2) the evidence was legally and factually insufficient to show that termination was in the children’s best interest. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

J.G. (Mother) met Father when she was fourteen years old and working for Father and his first wife. Father was convicted in 1995 of assaulting his first wife, and they subsequently divorced. Father and Mother married in 1998, when she was eighteen years old and Father was thirty-eight. In 2000, Mother gave birth to their first child, J.M. When Mother became pregnant with their second child, L.M., born in 2002, Father took Mother and J.M. to Jordan to be with his family and to give birth to L.M. Father returned from Jordan several weeks before Mother. Mother returned sometime before August 2002.

Mother had been subject to drug addiction from an early age. She first used illegal drugs at age ten, and she has used them off and on throughout her life. She completed a drug-treatment program when she was thirteen, but she started using drugs again when she was fifteen or sixteen. She testified she never used illegal drugs in front of Father. She also used barbiturates, first prescribed after an auto accident when she was fourteen.

On August 6, 2002, Mother called the Richardson Police Department to get information about getting help because of Father’s béating her. Officer Andrew Kviz spoke to Mother on the telephone, and he testified she sounded distraught, as if she had been crying for a while. Mother told Kviz her husband had assaulted her, giving her two black eyes, and that he made her keep her hands by her side while he assaulted her. Mother told Kviz she did not want the police coming to the house because she would be beaten in retaliation. Kviz gave Mother the telephone numbers for shelters and organizations that could help her, and he urged her to call them. Mother told Kviz she could not leave her husband because she could not support herself or her children without him. After hanging up, Kviz checked the telephone number from the call, and he noticed there had been several previous “alarm calls” to that address. Kviz dispatched officer Mike Kincy to the address to perform a “welfare check.” Mother told Kincy that her husband had assaulted her and made her keep her arms down while he hit her across the arms. Kincy observed that Mother had two black eyes, which she had tried to hide with make-up and sunglasses, but he could not tell if her arms were bruised. Based on Kincy’s report, Kviz filed a report that was forwarded to the' district attorney’s office.

On August 15, 2002, the Collin County branch of the Texas Department of Protective and Regulatory Services (the Department) received a referral, alleging that the previous week, Father had beaten Mother, been arrested, and was barred from the house for sixty days; that Mother was depressed, using drugs, and neglecting the children; and that the house was filthy.

On August 23, 2002, the Department’s investigator Brenda Smith went to the house to investigate. Smith learned there had previously been three “service” calls to the house for domestic violence. August 23, 2002 was a hot day, and the electricity was out in the neighborhood. Inside, the house was filthy. There were a few dirty diapers on the floor, including one in the children’s bedroom. A “sippy cup” with juice in it had mold on the juice and mold growing around the mouthpiece. The kitchen floor was sticky, and the kitchen smelled of garbage. There were dirty dishes piled high in the sink. The refrigerator was “unclean,” and there was a bottle of spoiled milk in the refrigerator. There were flies inside the house and gnats flying around the overflowing garbage bin. There were several Advil pills on the floor as well as other small items that could choke a child. The bathroom door was open, and used feminine hygiene products were on the floor. In the children’s bedroom, the bedding smelled of urine, there were clothes piled on the floor, and toys were piled precariously in the closet such that they could easily fall and hurt a child. The master bedroom was also in disarray, with feces smeared on the floor. The children were very dirty and smelled bad, and their diapers were soiled and cold. L.M. had a rash around his rectum typical of a child left sitting in his feces for long periods of time. Smith pointed out to Mother a broken lighter that lay in a pool of lighter fluid, and Mother scolded J.M. for the mess, yelling very loudly.

Smith asked Mother how the house had gotten into this condition, and Mother blamed J.M., stating she could not control him. Smith saw welts on Mother’s neck and arms, and Mother told her she had been beaten up by a woman in a store parking lot. While Smith was there, Mother placed L.M. in his crib, gave him a bottle of milk, and left him unattended. Smith took the bottle from L.M., examined the contents, and noticed the milk in it was spoiled. Smith called her supervisor and arranged for the children’s removal to foster care that day. After removal, the children also received a medical examination in which J.M. tested positive for cocaine.

Smith talked to Mother and Father a few days later. Mother told her she had used cocaine and marijuana about three days before the children were removed. Mother told Smith she heeded the cocaine to give her energy because she was tired, but she told Smith she did not bring the cocaine into the house. When Smith talked to Father, he appeared surprised that Mother was using drugs, and he denied having abused either Mother or his first wife. Father also told Smith that the house was not in that condition before he was barred from the house.

Rhyan Wilhelms, who lived across the street from Father and Mother, testified she had known Mother for about three to four weeks before the children’s removal. Before the protective order barred Father from the house, Wilhelms would help Mother clean the house, and it would be clean when Father got home. However, the next afternoon, the house would be dirty again. Wilhelms testified that the condition of the house got substantially worse after Father was barred. Wilhelms spent a lot of time cleaning the night before Smith’s visit, and when Smith arrived at the house, she had already spent a few hours that day cleaning the house.

Mother’s aunt, Eva Meinhardt, testified that when Father, Mother, and J.M. went to Jordan before L.M.’s birth, the house was immaculate. However, Mother told Meinhardt that when Father returned from Jordan before her, he did nothing to keep the house clean; he did not take out the garbage or do laundry, and the house was “completely destroyed” when Mother returned.

Meinhardt also testified that Mother told her Father first struck her during an argument when J.M. was about a year old. Mother told Meinhardt that it was her, Mother’s, fault and that it would not happen again. However, Meinhardt testified that Father continued to beat Mother and that the beatings grew worse as the relationship progressed. On one occasion, Me-inhardt saw Mother bruised from fighting with Father, and Mother had a miscarriage shortly thereafter. Meinhardt testified that about a month before the children were removed, Mother had bruises all over her face, neck, chest arms, and legs; Mother told her she and Father had gotten into a fist fight after she interrupted Father at the computer and told, him to come to bed.

After the children were removed, the Department set up a plan with Father and Mother to achieve reunification of the children with the parents. From the beginning, however, Father was obstructionist in meeting the goals and in denial of the reasons leading to the removal of the children. Kathy Waffen, the Department’s caseworker overseeing their case, testified that when the children were removed, the Department was looking .for a suitable temporary placement for the children. The Department preferred placement with a relative or friend because it would permit more visitation between the children and parents. Mother’s family was not suitable, and Father refused to suggest any of his family or friends because he did not want them to know of the removal. The Department placed the children with an unrelated foster family that was also approved for adoption. However, with a foster family, Father and Mother had only one hour of visitation with the children per week. The Department required Father and Mother to complete several services, programs designed to make them better parents and addressing the reasons for the removal, including parenting classes, individual counseling, drug treatment for Mother, and a batterers intervention program for Father. The Department asked the parents to complete each service and to exhibit a change in attitude or circumstances reflecting they had learned from the services and become better parents or people. Father completed all the services the Department asked him to do, but he took a long time doing it, partly because he dropped out of the batterers intervention program after missing two sessions (only two absences were permitted in the program) and retook the program later. Mother failed to complete drug treatment and, after a while, prohibited her counselor from disclosing the communications during their counseling sessions to the Department. Father soon filed for divorce from Mother, which was rendered in November 2003.

Although Father completed all the services, the Department concluded he hád not benefitted satisfactorily from them. In January 2003, after several months of the services, Father and Mother met with various people involved in the case at a “Permanency Plan Team” meeting. At the meeting, Father was questioned about his domestic violence issues and his understanding of why the children were removed. Father and Mother continued to deny any responsibility for the children’s removal. Following that meeting, the Department believed it had reached an impasse and changed the goal from reunification to termination. The Department did not immediately advise Father and Mother that it intended to seek termination.

Father continued to attend the services as required by the Department, including the batterers intervention program, but until the February 2003 meeting, he also continued to deny having ever engaged in any domestic violence. At the February 2003 meeting, Father admitted hitting his first wife; however, he minimized and tried to excuse his conduct by stating she was a bad wife and had spent all his money. Father continued to insist he had never physically abused Mother. On July 25, 2003, Father pleaded guilty to a criminal charge of assaulting Mother. The trial court deferred adjudication of Father’s guilt and placed him on community supervision for nine months. Four days later, at the July 29, 2003 meeting, Father first admitted to any type of violence against Mother when he admitted that he slapped Mother in the face because she was blocking the television. Father also admitted he “pushed her face,” giving her black eyes because she disturbed him while he was on the computer. Waffen told Father that even though he admitted the behavior, he was minimizing it. Father completed the batterers intervention program, but he received a low score for the accepting-responsibility part of the program because he only minimally admitted committing the domestic violence and “he was very much minimizing everything.” At trial, Father testified he hit Mother only one time, on both her eyes. He testified he did not hit her arms, chest, or legs, and he did not know how she got the marks there. Father also testified he did not recall having made Mother hold her hands to her side while he beat her.

Father acknowledged that his violence toward Mother endangered the children because it resulted in his arrest, leaving the children in Mother’s care, who was unable to properly care for them. One of the purposes of the batterers intervention program was to teach the dangers that domestic violence has on the children. However, at the trial, Father testified he did not believe the domestic violence had any affect on the children. Father also testified that domestic violence in the home was not an issue because Mother no longer lived there.

Much of the testimony concerned Father’s ability to make the home clean and safe for the children. At the July 29, 2003 meeting, Father expected the children would be returned to him within three days. Father came to the meeting with photographs of the house showing different rooms in clean, improved condition. Waffen looked at the photographs, told Father she was pleased the house looked so good, and suggested they go examine the house immediately. Father was surprised that Waffen wanted to see the house because he had brought the pictures, and Waffen told him she needed to confirm the accuracy of the photographs. Waffen testified that when she examined the house that day, it was not in acceptable condition. Dangerous problems included a large, uncovered air-vent hole in the wall with exposed wiring into which a child could crawl; the lack of a safety fence around an above-ground swimming pool; and large shards of glass on the floor in front of windows that were missing panes ■with cardboard taped in place of the panes. The chest of drawers in the children’s bedroom was still missing the bottom drawer, and the exposed drawer guides were unsafe. Toys and clothes were strewn about the children’s bedroom, and it was not ready to receive children. Waf-fen was shocked by the condition of the home because Father had insisted he was a clean person and that the condition of the house in August 2002 was Mother’s fault. Waffen asked Father how the house could be in such poor condition when he had always represented he kept the house clean, and Father told her, “Well, I was depressed.” Father testified that by the time of trial, he had put a fence around the swimming pool and further childproofed the house.

Concerning Father’s awareness of Mother’s drug problems, Father insisted that he was unaware of Mother’s drug problems because he had never been around drugs before; however, he later admitted that his first wife had used marijuana and that he knew something was wrong with Mother. Meinhardt testified that when Mother was sixteen or seventeen years old and living with a drug dealer named Casey, Father would go to Casey’s apartment to smoke marijuana. Meinhardt also testified that in 2002, before Father was barred from the house, she saw bags for prescription medicine and empty prescription-medicine bottles all over the house.

Another focus of the testimony was Father’s ability to care for the children as a single parent and his understanding of the challenges of being a single parent. There was conflicting evidence as to how much care of the children he took before removal, although the evidence was clear he loved the children and would play with them. During the initial visits after removal, Father had difficulty performing child-care tasks like diapering the children and using Pullups, and he said he did not normally perform these tasks. Father was unaware of child-safety issues like expiration dates on baby-food jars. When the children were removed, they had not been vaccinated. Father told Waffen he trusted Mother to get the children immunized, and he was not concerned about the failure to vaccinate the children. When Waffen asked Father to explain how he planned to manage his own business, which had required long hours, and do all the work necessary to care for the children by himself, he explained to her that he would perform much of the work while the children were asleep. When Waffen asked him to tell her in detail how he was going to do all the work as a single parent, Father would just say, “I will get it done. I will do what I need to do.” Because J.M. tested positive for cocaine, Waffen asked him how he would tell if either child had a drug problem, but he could not tell her what signs he would look for indicating a drug problem. Waffen testified Father was unaware the children were developmentally delayed when they were removed, and he did not know what the developmental milestones were for the children. Waffen testified Father had no outside support, such as friends or family, on whom he could call with a problem or question because he did not want his friends or family to know about the children’s removal. Father named two cousins in the area he would go to for assistance, but he told Waffen he would not tell them of the situation until after the children were returned to him. At trial, Father testified he had told the two cousins and a friend about the removal; however, by the time of trial, the cousins had moved overseas. Father also testified that his family loved the children and were ready to help him. Father testified that no one could love his children like he could and that he would do what was necessary to care for them.

The foster mother testified she and her husband had cared for the children since August 20, 2002. During the nearly seventeen months before trial, they had seen the children go from being developmentally delayed physically and emotionally to reach their proper developmental level. When the children came into their home, J.M. did not recognize L.M. as his brother, but he came to understand their close relationship. The children had bonded with her and her husband and called them mommy and daddy. The children have met and interacted with the foster parents’ relatives. At first, J.M. had nightmares after each visit with Father and Mother, but those subsided after a couple of months.

On the best-interest issue, Waffen testified that termination was in the best interest of the children. She testified that she was “very concerned about [Father’s] ability to parent the children, to care for them, and to nurture them.” Waffen thought Father was unable to provide the physical and emotional support or the stable and loving environment the children needed. Waffen also testified that one of the issues affecting the best-interest analysis is the length of time it takes the parents to complete the services and whether the parents learn what they are supposed to learn from the services. In this case, it took Father a long time to complete the services, and Waffen testified he did not learn what he was supposed to learn from them, particularly from the batterers intervention program.

The CASA volunteer, Deana Scott, also testified that termination was in the children’s best interest. Scott testified, “I’m concerned that the parents, throughout this whole case, have not been able to show us that they have made enough progress to reassure us that they can keep these children safe or that they can provide them a home where they’re going to meet their needs.” Scott also stated she was concerned whether Father, individually, could provide the children with a safe, loving environment. She also testified that the children, while in the care of the foster parents, had progressed to the appropriate developmental level, had bonded with the foster parents, and had interacted with them and their relatives. Also, like Waffen, Scott was concerned about the length of time it took Father to complete the services and his attitude toward the services.

Father’s professional counselor, Debra Pruitt, testified she counseled Father beginning in June 2008 up through the week before trial in February 2004. Throughout the counseling sessions, Father was either in denial of his problems or he minimized them. The only responsibility for the removal of the children Father expressed was not being home enough and not getting help soon enough.

During the weekly counseling sessions, Father told Pruitt generally that he would be able to take care of his children, but when pressed for specific details to show he understood what he was facing as a single parent with no support, having to run a business and provide all the care of the children, he was unable to explain how he would do so and resorted to the simplistic short answers of “I can do this. I will take care of them. I will do what they need.” Only in December 2008 did Father begin to admit that he might need help raising the children.

Pruitt also testified that Father denied his house was dirty. When Pruitt confronted him with what Waffen said the condition of the house was during her inspection in July 2003, he denied it was as bad as Waffen represented. Father also refused to admit that the house was dirty before he was barred from the house by the August 2002 protective order.

Concerning the domestic-violence issues, Pruitt testified that Father, at first, denied hitting Mother, but when Pruitt asked how she got the black eyes, he admitted he did hit her because she would not get out of his way. Pruitt also testified that Father did not understand the seriousness of domestic violence and the harm it causes the children. Pruitt testified she would be afraid for children who are returned to a father who had been violent with two wives.

The trial court found: (1) Father knowingly placed or allowed the children to remain in conditions or surroundings that endangered their physical and emotional well-being, namely, an environment where illegal drugs could be inadvertently consumed by the children and where acts of violence were committed against Mother while the children were in the household; (2) Father engaged in conduct that endangered the physical and emotional well-being of the children by committing acts of violence against Mother while the children were in the household; and (3) termination of the parent-child relationship between Father and each of the children is in the children’s best interest. On appeal, Father does not challenge the trial court’s findings that he endangered the children by committing acts of violence against Mother.

EQUITABLE ESTOPPEL

Father asserts for the first time on appeal that the trial court erred in terminating his parental rights because the Department “was equitably estopped to proceed on the termination case.” The doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998). Father asserts the Department falsely misrepresented to him that if he completed the services, then the children would be returned to him. He also asserts the Department concealed from him the material fact that after the January 2003 meeting, it changed its goal from reunification of the family to termination of parental rights and adoption of the children, while knowing that Father would continue to seek the return of his children to his custody. Father asserts he detrimentally relied by continuing to attend the various services required by the Department. The Department asserts it never represented to Father that if he simply completed the services, the children would be returned to him. The Department asserts the record shows Father was repeatedly advised both by the Department and by the trial court that if he could not provide a safe environment for the children, even with the assistance of the service plan, his parental rights could be terminated. The Department also argues Father could not have detrimentally relied because he should have learned of the change in the permanency plan in February 2003.

Estoppel is an affirmative defense that must be pleaded. See Tex.R. Civ. P. 94; In re S.A.P., 156 S.W.3d 574, No. 04-0473, 2005 WL 119935, at *2 (Tex. Jan.21, 2005) (per curiam). “If estoppel is not pleaded, it is waived.” In re S.A.P., at 576, 2005 WL 119935, at *2. Father acknowledges he did not affirmatively plead estoppel, but he argues the issue was tried by consent. Rule 67 of the Texas Rules of Civil Procedure provides that when issues not raised by the pleadings are tried by implied consent, they must be treated in all respects as if they had been raised in the pleadings. Tex.R. Civ. P. 67; see Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719 (Tex.App.-Dallas 2004, no pet.). This rule is limited to those exceptional cases where it clearly appears from the record as a whole that the parties tried an unpleaded issue by consent. Gutierrez v. Gutierrez, 86 S.W.3d 721, 729 (Tex.App.-El Paso 2002, no pet.). It does not apply when the evidence of the un-pleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection. RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex.App.-Houston [1st Dist.] 1997), pet. denied, 989 S.W.2d 363 (Tex.1999); Austin Area Teachers Fed. Credit Union v. First City Bank-Northwest Hills, N.A., 825 S.W.2d 795, 800 (Tex.App.-Austin 1992, writ denied). To determine whether an issue was tried by consent, the reviewing court must examine the record, not for evidence of the issue, but rather for evidence of trial of the issue. Johnson, 148 S.W.3d at 719; Gutierrez, 86 S.W.3d at 729.

The doctrine of trial by consent does not apply for two reasons. First, assuming, without deciding, that there is evidence of equitable estoppel, we conclude the record does not show the issue was tried. Father did not refer to equitable estoppel, either expressly or implicitly, at any time in the trial record. The issue was not mentioned in any pretrial or posttrial pleading or motions, and it was not mentioned during the opening statements, presentation of the evidence, or in the closing arguments. The trial court did not make, and Father did not request, a finding of fact or conclusion of law on equitable estoppel. Second, any evidence that could possibly relate to the doctrine of equitable estoppel was also relevant to the issue of whether termination was in the best interest of the children. Because equitable estoppel was not pleaded or tried by consent, we conclude it was waived. In re S.A.P., 2005 WL 119935, at *2. We resolve Father’s first issue against him.

BEST INTEREST

In his second issue, Father asserts the evidence was legally and factually insufficient to establish by clear and convincing evidence that termination of Father’s parental rights was in the children’s best interest. The finding that termination was in the children’s best interest must be supported by clear and convincing evidence. Tex. Fam.Code Ann. § 161.001(2) (Vernon 2002). Whether analyzing a legal or factual sufficiency challenge, the critical inquiry is whether, based on the trial evidence, a fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations. In re S.A.W., 131 S.W.3d 704, 708 (Tex.App.-Dallas 2004, no pet.). In a legal sufficiency review, we view the evidence in the light most favorable to the judgment, disregarding only the evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. When reviewing the evidence for factual sufficiency, we must give due consideration to evidence the fact-finder could reasonably have found to be clear and convincing, reversing the judgment only, if in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of its finding is so significant that it could not have formed a firm conviction or belief. Id.

In determining whether termination is in the children’s best interest, we consider several factors, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of those seeking custody; (5) the programs available to assist those individuals or by the agency seeking custody; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent indicating the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). We will consider each of these factors.

The desires of the children. The children did not testify and are too young to express their desires on this issue, but the evidence shows they are bonded to both Father and the foster family, enjoy their visitations with Father, and are happy in the foster home.

. The emotional and physical needs of the children. The record shows Father lacked an understanding of the responsibilities of childcare. Some witnesses testified that Mother performed most of the childcare before removal. Father testified that he shared in much of the childcare before removal, including changing diapers and bathing and feeding the children; however, at the visitation sessions, he had difficulty changing diapers and using Pullups and admitted he normally did not perform those tasks. Father’s credibility was suspect due' to the evidence of his lies to Waffen and others involved with the Department about the condition of the house, whether he had committed domestic violence, and other issues. When asked by Waffen to explain in detail how he would care for the children, Father answered in generalities, stating he would do whatever was necessary. Father was unaware of the developmental milestones for the children, and the children were developmentally delayed while in his care before removal. Evidence also showed Father lacked outside support, something the trial court could consider was important for a single parent. This lack of support was due to Father’s shame of admitting the Department’s involvement to his family and friends. Father testified that his family was ready to help him, but as his family was in Jordan and none of them testified, the trial court could conclude his testimony was not credible. As Waffen testified, Father was in denial of the problems that led to the removal of the children. Even when he admitted some problems, like domestic violence and the dangerous condition of the house, he minimized their importance and blamed the problems on others. The trial court could conclude that Father’s refusal to accept and understand his part in the problems leading to the children’s removal raised a likelihood that those problems would arise again.

The emotional and physical danger to the children. The physical danger to the children now and in the future is shown by Father’s inability to keep a house safe for the children. On July 29, 2003, Father represented to Waffen through pictures he presented that the house was safe for the children. Waffen testified the house presented many dangers and was not prepared to receive the children. Father testified at trial that the house was, at that time, ready to receive the children, but given his lies to Waffen on this subject, the trial court could disbelieve Father’s testimony. The emotional danger to the children is shown by Father’s attitude toward domestic violence. After completing the batterers intervention program, Father still believed that the only risk to his children from his abuse of his wives was that he might be arrested and removed from the household. Father did not believe domestic violence could have any affect on the children. This belief was contrary to what he was taught in the batterers intervention program and contrary to what other witnesses testified was the affect on children. During the closing argument, the trial court stated that Father’s argument that acts of domestic violence do not constitute allowing the children to be in an environment endangering them “seems spurious.”

Father testified that his past violence would not be an issue in the future because Mother no longer lived in the house and he had completed an anger-management course as one of the services required by the Department. However, he had previously completed some type of anger management program after his arrest for hitting his first wife. Given Father’s history of physically abusing his first two wives, and the fact he abused Mother after he had taken a class dealing with anger issues, the trial court could conclude that domestic abuse would again become an issue.

The parental abilities of those seeking custody. The foster parents who plan to adopt the children demonstrated their parental abilities through their raising the children during the more than sixteen months they cared for the children before trial. The children were developmentally delayed when they were placed with the foster parents. J.M. also seemed not to recognize that L.M. was his brother. During their time with the foster parents, the children quickly reached the proper developmental levels. The foster parents also saw to it that the children bonded to each other as brothers. The children also took part in activities with the foster parents’ extended family.

The trial court could conclude that Father’s parental abilities were not as good. He admitted during visitations that he was not used to changing diapers. Waffen testified that Father did not understand about expiration dates on baby-food jars. Another indication of his lack of parental abilities was demonstrated by Father’s shortcomings in disciplining the children during visitations. During one visitation, L.M. picked up a piece of paper and put it in his mouth. Mother said the paper should be taken from L.M., but Father told her, “no, it’s okay. It’s okay. He can eat paper.” As Waffen testified, “He wasn’t at all concerned the baby was going to put something in his mouth.” Father’s general and superficial responses to Waf-fen’s inquiries about child-care issues also indicates his lack of parental abilities. Likewise, the failure to immunize the children, his delegating all responsibility on this issue to Mother, and his lack of concern about immunizations indicates a lack of parental abilities.

The programs available to assist those individuals or by the agency seeking custody. The record contains no evidence on this factor.

The plans for the child by these individuals or by the agency seeking custody. The foster mother testified that she and her husband want to adopt the children. Father testified that if the children are returned to him, he would raise the children on his own. He testified that almost all of his family members are willing to come and help him. As discussed above, however, the trial court could conclude Father lacked credibility.

The stability of the home or proposed placement. The evidence shows the foster parents’ home is stable. By the time of trial, the children had been in the foster parents’ care for over seventeen months, and the children thrived in their care. Both foster parents work, and the children are placed in daycare during the day. Father plans to raise the children as a single father. Before the trial, Father often worked long hours operating his own business. After removal, Father’s work schedule sometimes interfered with his meeting with Waffen. Father testified he planned to reduce his hours so he did not work nights and weekends.

The acts or omissions of the parent indicating the existing parent-child relationship is not proper. This behavior includes Father’s abusing Mother. Father’s behavior in delaying completing the services and his persistent denial of responsibility for the children’s removal delayed the possible return of the children to Father. Also, Father’s behavior since the children’s removal has been a pattern of deception and manipulation in which he demonstrated he would say anything, regardless of its truth, to obtain the return of his children, which shows he cannot be trusted to do what he says he will do. Father’s history of domestic violence toward his two ex-wives, together with his refusal to accept the concept that domestic violence harms the children, shows the children would not be safe in the home with him.

Any excuse for the acts or omissions of the parent. Father testified his lack of familiarity with the English language may have resulted in him not understanding some of what he was told as well as resulting in him not being able to verbally express what Smith, Waffen, Pruitt, and Scott wanted to hear. Father testified that he knew it was wrong to hit his wife, and he insisted that it had no harmful effect on the children.

Father relies on two published opinions to support his argument that the evidence does not support the finding that termination is in the children’s best interest. The first case is not applicable because it concerns only the sufficiency of the evidence to support the finding that the appellant endangered his children; the opinion does not discuss the issue in this case, the sufficiency of the evidence to support the issue of whether termination was in the children’s best interest. See Doria v. Tex. Dep’t of Human Resources, 747 S.W.2d 953, 958-59 (Tex.App.-Corpus Christi 1988, no writ). The second case, In re W.C., 98 S.W.3d 753 (Tex.App.-Fort Worth 2003, no pet.), concerned the factual sufficiency of the evidence to support the best-interest finding when the mother had successfully completed all the services the Department required and had made substantial progress under the services. Id. at 766. As the Fort Worth Court explained,

[T]he Department based its termination decision on its belief that appellant’s past conduct and poor judgment still posed a risk of harm to the children. The evidence shows, however, that appellant has made significant progress, improvements, and changes in her life, and her insights and coping skills have improved, as well as her relationship with her family. The evidence also shows appellant and the children are bonded with one another, that appellant visits her children regularly, and that she obviously, cares for her children. There is also evidence the children are making progress through therapy and that appellant has gained a good support system through her family and church. The .record reflects there is nothing more appellant could have done in order to have her children returned.

Id. Father, unlike the mother in In re W.C., has not made significant improvements. The trial court could conclude that Father lied to the Department, his counselor, and in his testimony to the court about the extent of the domestic violence in which he .had engaged. The court could also conclude from the evidence that domestic violence in the home is harmful to children and that Father’s testimony that he did not believe the children were harmed by his domestic violence shows the children would be subject to future emotional danger in his care.

Also, unlike In re W.C., the trial court could conclude Father did not have a good support system. Father testified that the only people he had told about the removal had since moved overseas. Father told Waffen and Pruitt he did not want his family to know about the removal because he was ashamed. The only other member of Father’s family who knew of the removal was his sister who flew over from Jordan to visit him; however, he told her not to tell their mother, and the record does not show whether he or his sister told anyone else. Although Father testified that his family was ready to help him, the trial court could discredit his testimony based on Father’s pattern of lying throughout this case. Furthermore, with Father’s family living in Jordan, they were not immediately available to help him. Father testified he had “a lot of friends” he could turn to for help, but the only “friend” who testified on his behalf was a woman who ran a 24-hour daycare and testified she would accept the children at her daycare. We conclude In re W.C. is distinguishable.

After reviewing all the evidence under both the legal and factual sufficiency standards, we conclude the trial court could reasonably form a firm belief or conviction that termination of the parent-child relationship between Father and his two sons was in the children’s best interest. We resolve Father’s second issue against him.

We affirm the trial court’s judgment.

      . In July 2003, Father suggested the Department do a home study on his family in Jordan. By this time, the children had already been in foster care for about 11 months. Even if placement and-monitoring by the Department in a foreign country were possible, it is not clear how such a placement would have allowed greater visitation because Father's home and business were in Texas.

      . Mother testified that Casey was not a drug dealer and that she did not smoke marijuana with Father at Casey’s apartment.

      . At a hearing on October 9, 2002, the trial court told Mother and Father, "And the Court further must advise each of the parents that unless you are willing and able to provide your children with a safe environment, even with the help of a service plan, your parental rights could be further restricted or even terminated.” The trial court similarly admonished Mother and Father on August 23, 2003 that their parental rights could be terminated despite the assistance of the service plan if they could not provide the children with a safe environment within a reasonable amount of time.

      . In accordance with section 263.303 of the Texas Family Code, the Department filed periodic Permanency Plan and Permanency Progress Reports. See Tex. Fam.Code Ann. § 263.303 (Vernon 2002). In the October 1, 2002 Permanency Plan and Permanency Progress Report, the Department stated that the permanency plan for the children was "Family Reunification.” The January 27, 2003 Permanency Plan and Permanency Progress Report, the Department changed the permanency plan for the children from "Family Reunification” to “Permanent Placement with non-relative.” The May 15, 2003 and July 9, 2003 Permanency Plan and Permanency Progress Reports stated that the permanency plan for the children was permanent placement with a non-relative through adoption. The Department argues Father should have learned of the change in the permanency plan in February 2003 because, according to the Department, Father hired counsel in February 2003 who could have explained the change in the permanency plan to him. The record does not show when Father hired counsel. Our review of the record shows the first time Father may have appeared with counsel was at the May 15, 2003 hearing.

      . Father’s answer is not in the appellate record. However, at submission of the cause, his attorney represented to the Court that Father’s answer consisted of a general denial.

      . We also observe that, even if pleaded or tried by consent, like the supreme court, "we have difficulty imagining how parents found ... to have endangered their children can have the 'clean hands’ needed” for estoppel. In re S.A.P., at 577, 2005 WL 119935 at *2. We also share the supreme court’s concern as to how Father’s "participation in counseling and other family support services was detrimental. It is hard to see how [Father’s] chances of regaining custody of [his children] would have been increased by refusing to do so.” Id. at 577, at *3.

      . Father asserts he could not admit to the domestic violence because he had charges pending at the time. Father testified that his criminal-defense attorney advised him to refuse to answer question about domestic violence and to refer the questioner to the attorney. Father, however, failed to follow this advice when he repeatedly denied having committed domestic violence.

      . Father also testified he understated his income on the batterers intervention program intake form in order to be able to participate in the program for the least amount of fees. On examination by his own attorney, however, he testified that the income level was stated correctly. The trial court could conclude that Father would say anything, regardless of its veracity, to achieve his goal of the return of the children.

      . Father also cites an unpublished opinion from this Court, Michael C. v. Texas Department of Protective & Regulatory Services, No. 05-96-01867-CV, 1998 WL 209055 (Tex.App.-Dallas Apr. 30, 1998, pet. denied) (not designated for publication). That opinion discussed only the issue of whether the parents’ endangered their children; the opinion did not reach the best-interest issue. Accordingly, it is not applicable to this case.


source: Caselaw Access Project

author: TOM GRAY, Chief Justice,

license: Public Domain

text:
    In re Wendy Jeanette WINGFIELD, in her Capacity as Independent Executor of the Estate of O.D. Wingfield, Deceased.
    No. 10-05-00054-CV.
    Court of Appeals of Texas, Waco.
    March 2, 2005.
    David Braun, Cassie Gresham and J. Bruce Bennett, Braun & Associates, Austin, for Appellant/Relator.
    James B. Davis, Limestone County Dist. Atty., Buffalo, Patrick H. Simmons, Cannon & Simmons, Groesbeck, for Others.
   TOM GRAY, Chief Justice,

dissenting opinion to order lifting stay.

I am unable to sort this proceeding out based upon what is properly before us for consideration. I will try to limit this discussion to only enough information to explain why I dissent to the action currently being taken.

This is an original proceeding brought by an independent executrix of an estate. The executrix has appealed one ruling of the trial court in a separate proceeding, In re Wingfield, No. 10-05-00009-CV, and moved to transfer all contested matters in the probate proceeding to a district court. Tex. Peob.Code Ann. § 5(b). The county judge’s refusal to transfer the contested matters to the district court is the subject of this proceeding. The county court judge has also filed, apparently for his own determination, a motion to remove the relator as independent executrix.

We issued an order staying all further proceedings before the county court judge.

A real-party-in-interest, an intervenor in the lower court, is the Centerville Volunteer Fire Department. The attorney representing the Fire Department has also filed a motion with this Court on behalf of the respondent, the county court judge.

The relator, Wendy Jeanette Wingfield, the independent executrix, died.

The motion now before us suggests that the county court judge has contacted each of the parties and all the contested matters have been resolved and therefore the motion for the removal of the contested matters to the district court is moot. Further, the motion asserts that there is an immediate need for the county court judge to appoint a successor personal representative of the estate.

Based on the current status of this proceeding and the representation of the respondent trial court and a real-party-in-interest by the same attorney, I believe it is inappropriate for us to grant the motion lifting the stay of proceedings pending before the county court judge.

If, as asserted, there was a Rule 11 agreement entered into before the death of the relator, it has not been filed with this Court. I am not sure it would matter.

There is an overarching procedural problem that is the elephant everyone wants to ignore. The relator argued that the county judge has no authority to take any action over disputed issues after the motion to transfer was filed. Case law certainly seems to support that position. In re Vorwerk, 6 S.W.3d 781 (Tex.App.Austin 1999, orig. proceeding); Jimmy Swaggart Min. v. Texas Commerce Bank, 662 S.W.2d 774 (Tex.App.-Houston [14th Dist.] 1983, no writ); McDonald v. Dunn, 570 S.W.2d 248 (Tex.Civ.App.-Waco 1978, orig. proceeding).

The duly appointed independent executrix filed the motion to transfer prior to her death. No new personal representative has been appointed. What if the deceased executrix is correct? Everything, I mean everything, the county judge does until there is a remand order from the district court is procedurally suspect. He may have no authority to act. No authority to appoint new or substitute personal representatives. No authority to approve settlements. No authority to approve the sale of real property. No authority to dismiss claims or complaints. The argument has even been made the actions are void as being without jurisdiction. See Jimmy Swaggart Min., 662 S.W.2d at 776.

All we are doing is creating procedural uncertainty and indefinitely clouding title to real property.

If transferred to district court, there would be no problem with the district court acting on the various pending motions and taking any needed action on the transferred issues. If the trial court determined there was no longer a matter in dispute, the transfer back to the county court would at least limit the procedural issues.

The bottom line is knowing that the trial court and a real-party-in-interest are represented by the same attorney and that there is a substantial question of the county judge’s authority to take any action on any matter that was arguably contested, I cannot grant the relief requested that will result in putting the county judge in control of proceedings while one of the parties is represented by the attorney who represented the county judge in this mandamus arising out of the same proceeding. I question whether, at this point, the county judge can be put back in control of these proceedings but will reserve a determination of that issue. Accordingly, with so many unanswered questions, I must note my dissent to the actions taken by the Court.


author: COOPER, Justice. WINTERSHEIMER, Justice,

text:
    Steven A. GERLAUGH, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0382-MR.
    Supreme Court of Kentucky.
    Feb. 17, 2005.

      Misty Dugger Judy, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   COOPER, Justice.

Appellant, Steven A. Gerlaugh, was convicted by a Montgomery Circuit Court jury of robbery in the first degree and sentenced to twenty years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error, viz: (1) denial of a speedy trial; (2) improper eyewitness identification; (3) admission of hearsay evidence; (4) admission of a firearm that was not proven to have been connected to the crime; (5) admission of the description and a photograph of an alleged but unidentified co-perpetrator; (6) admission of evidence of Appellant’s post-arrest silence; (7) insufficiency of the evidence to support a conviction. We reverse and remand for a new trial because of the improper admission of the hearsay evidence and the insufficiently identified firearm.

On Father’s Day, June 17, 2001, Richard and Kristina Boone had dinner with Richard’s son and daughter-in-law before returning to their residence in Jeffersonville, Montgomery County, Kentucky. On their way home, they stopped at R & D Food Mart to purchase cigarettes. While doing so, Mrs. Boone noticed another female customer in the store. The Boones arrived at their residence at about 10:00 p.m. Approximately fifteen minutes later, they heard a knock at their door. Upon opening the door, Mr. Boone was confronted by a man and a woman. The man struck Boone in the face with a pistol, knocking him across the room and rendering him partially insensible. The two intruders then ordered Mrs. Boone to remain on the sofa as they proceeded to steal wrist watches, jewelry, approximately $400.00 in cash, and all of the telephones in the residence. Before departing, they bound the hands and feet of both victims with wire tie straps. Mrs. Boone ultimately freed herself and her husband. She then proceeded to a neighbor’s residence and called for emergency assistance.

On June 25, 2001, Appellant was arrested and charged with the robbery. Although neither perpetrator wore a mask, Mr. Boone could not identify Appellant as the person who entered his residence on June 17, 2001, and struck him in the face with a pistol. However, he did overhear the male robber say, ‘You shouldn’t let other people know your business,” before leaving his home. Although Boone did not know Appellant, both were acquainted with Dennis Yarber. Boone had fathered a child by Yarber’s daughter, and Appellant and Yarber had been childhood friends in Ohio. According to Boone, Yar-ber knew that Boone kept large amounts of cash at his residence and had been inside Boone’s residence “looking around” three or four days before the robbery. The police found a 9-mm pistol, which was introduced at trial, in Yarber’s possession.

Mrs. Boone recognized the female perpetrator as the person she had seen inside the R & D Food Mart shortly before the robbery. The woman has never been located or charged. Although Mrs. Boone had never seen Appellant before the robbery, she subsequently identified him by photograph and in person during trial as being the male perpetrator. She had also told Detective Shane Barnes that the male perpetrator was wearing a green, long-sleeved shirt with a button-down collar, two breast pockets, and a shirttail rounded off at the bottom. After Appellant’s arrest, Barnes found a shirt matching that description in Appellant’s vehicle.

I. SPEEDY TRIAL.

Appellant was arrested in Madison County on a charge of possession of a handgun/firearm by a convicted felon on June 25, 2001, and bond was set at $20,000. While in custody on that charge, he was served with a warrant on this robbery-charge. He was indicted on the robbery-charge on July 13, 2001, and arraigned on July 27, 2001. Bond was set at $50,000. His trial was initially scheduled for January 15, 2002, but was continued until March 20, 2002, because of a conflict with an ongoing murder trial. That March 20th trial date was also continued because of a scheduling conflict. On March 21, 2002, Appellant filed a motion for an immediate trial or for pretrial release. In response to this motion, the trial court set a new trial date of April 3, 2002, and the case was tried on that date. The record does not reflect how long Appellant remained in custody on the Madison County charge or when or if that charge was ever resolved. Except for being in pretrial detention, Appellant identifies no prejudice caused by the fact that his trial was held in April instead of January or March. Thus, the issue becomes whether the nine-month lapse of time between indictment and trial was presumptively prejudicial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a four-part test for determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated. However, that inquiry is triggered only if the length of delay is presumptively prejudicial. Id. at 530, 92 S.Ct. at 2192. In Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court held that the delay becomes presumptively prejudicial “as it approaches one year.” Id. at 652 n. 1, 112 S.Ct. at 2691 n. 1. See Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir.1994) (“delay of less than one year will rarely qualify as presumptively prejudicial”). In Barker, the Court held that ten months of pretrial incarceration was only minimally prejudicial. Id. at 534, 92 S.Ct. at 2194. And in United States v. Cope, 312 F.3d 757 (6th Cir.2002), a delay of eight months and three weeks was held not presumptively prejudicial. Id. at 778. See also United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.2003) (thirteen-month delay presumptively prejudicial, but eight-month delay not presumptively prejudicial); United States v. Kalady, 941 F.2d 1090, 1095-96 (10th Cir.1991) (eight-month delay not presumptively prejudicial); Arnold v. McCarthy, 566 F.2d 1377, 1382-83 (9th Cir.1978) (nine-month delay not presumptively prejudicial).

Similarly, we held in Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky.2001), that a thirteen and one-half month delay was presumptively prejudicial, but in Brown v. Commonwealth, 934 S.W.2d 242, 248-49 (Ky.1996), that a ten-month delay was not presumptively prejudicial. The nine-month delay in this case was not presumptively prejudicial; thus, absent some other claim of prejudice, we need not address the remainder of the Barker analysis. Appellant was not denied his constitutional right to a speedy trial.

II. EYEWITNESS IDENTIFICATION.

Appellant did not preserve this issue for appellate review but seeks review for palpable error, i.e., “manifest injustice.” KRE 103(e); RCr 10.26. Kristina Boone observed the male perpetrator for approximately fifteen minutes as he and his female companion ransacked her residence. Shortly after the police arrived,' Mrs. Boone described the man as a white male, thirty to thirty-five years old, with brown, medium-length hair, of average build, and approximately 5' 6" tall. She also described the green shirt mentioned supra. On the morning of June 20, 2001, Mrs. Boone spent several hours with a forensic sketch artist, at which time she described the male perpetrator as a white male in his late thirties to early forties, with blondish-brown, slightly wavy shoulder-length hair, bluish-green eyes, tan skin, weighing approximately 150-160 pounds, and approximately S' 4" tall. Even Appellant admitted at trial that the sketch that the artist rendered is a remarkable resemblance of him. Nevertheless, he claims on appeal that Mrs. Boone’s description was flawed because he was fifty-two years old, fair-haired, blue-eyed, and S' 8" tall.

Meanwhile, Detective Barnes was able to obtain a driver’s license photograph from the county of Appellant’s residence in Ohio. Though the photograph was not obtained until after completion of the artist’s sketch, it is almost an exact replica of the sketch. Barnes assembled a “photo-pack” that included photographs of Appellant and five other individuals, none of whom had blonde hair or light-colored eyes. However, the other individuals did have brown hair that matched Mrs. Boone’s original description of the male perpetrator. She easily selected Appellant as the person who had entered her residence on the night of June 17, 2001. At trial, she again identified Appellant as the male perpetrator. On appeal, Appellant claims Mrs. Boone’s in-trial identification was tainted by the improper photo-pack line-up in which Appellant was the only fair-haired, light-eyed person depicted.

A conviction based on identification testimony following pretrial identification violates the defendant’s constitutional right to due process whenever the pretrial identification procedure is so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The determination of whether the in-trial use of identification testimony violatés due process involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If so, the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive.

Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky.1999) (internal citations and quotations omitted). Assuming the photo-pack was suggestive, we have adopted the test employed in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), to determine whether, under the totality of the circumstances, the identification was reliable. See Riley v. Commonwealth, 620 S.W.2d 316, 318 (Ky.1981). That test requires examination of five factors: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his or her prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; and 5) the time between the crime and the confrontation. Neil, 409 U.S. at 199-200, 93 S.Ct. at 382. All of these factors weigh in favor of the admission of Mrs. Boone’s eyewitness testimony. We do not regard the minor discrepancies between her first and second descriptions to require suppression. Remember, she had already positively identified Appellant to the sketch artist before seeing the photograph. Obviously, no manifest injustice occurred here.

III. HEARSAY.

At the time of the robbery, Appellant was a resident of Kettering, Ohio, located approximately 180 miles and a three-hour drive from Jeffersonville, Kentucky. At trial, he produced four alibi witnesses, all of whom testified that on June 17, 2001, Appellant was with them in Kettering at a Father’s Day cookout until approximately 9:15 p.m. In rebuttal, the Commonwealth offered the testimony of Sergeant Corky Abney of the Montgomery County Regional Jail. Abney had searched Appellant’s belongings at the jail on the morning of trial and discovered a letter purportedly written to Appellant by Brian DeWitt, who shared an apartment with Appellant in Ohio. DeWitt was not one of Appellant’s alibi witnesses and did not appear at trial. Appellant objected to the admission of the letter on the basis of hearsay and inability to cross-examine DeWitt. The Commonwealth asserted no basis whatsoever for the admission of the letter into evidence. Apparently misinterpreting Appellant’s objection as a motion for a continuance to obtain DeWitt’s presence for the purpose of cross-examination, the trial court admitted the evidence: “I am denying the motion for a continuance. I said we were going to finish this trial today., I have got hearings scheduled for tomorrow.” Abney then read to the jury the following excerpt from the letter:

As for the 17th, you need to find out by a discovery packet, to see what evidence they have, before anyone puts their neck out there. Remember, you are in Kentucky. They don’t play, especially with out-of-staters.

On appeal, the Commonwealth asserts that the excerpt was admissible as “a statement by a coconspirator made during the course and in furtherance of the conspiracy,” KRE 801A(b)(5), theorizing that the letter proved that Appellant, DeWitt, and the four alibi, witnesses conspired to produce perjured testimony at Appellant’s trial. The letter, itself, however, was the only evidence offered to prove the existence of the alleged conspiracy or Appellant’s and DeWitt’s participation in it.

The hearsay exception for out-of-court statements by a coconspirator applies only upon proof that (1) a conspiracy existed, (2) both the defendant and the declarant were participants in the conspiracy, and (3) the statement was made during and in furtherance of the conspiracy. Marshall v. Commonwealth, 60 S.W.3d 513, 520 (Ky.2001); Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.30[4], at 611 (4th ed. LexisNexis 2003). Before the adoption of the Kentucky Rules of Evidence in 1992, it had long been the common law rule that the Commonwealth could not prove the existence of a conspiracy or the participation in it by the defendant and an alleged coconspirator by the hearsay statement of a coconspirator.

[T]he evidence to establish the conspiracy must be found either in things said, done, or written by the one on trial or in parts of the evidence other than that coming directly or indirectly from the alleged co-conspirators of the party on trial.

Canada v. Commonwealth, 262 Ky. 177, 89 S.W.2d 880, 881 (1936).

The commonwealth sought to show by several witnesses that other members of the night riders told them -that the defendant Jake Ellis was a night rider. All of these declarations were merely hearsay, and were not admissible to show that the defendant belonged to the band of conspirators mentioned. The rule is elementary that, where a defendant is charged with being a conspirator, evidence must be first shown which, in the absence of contradictory evidence, would establish that he was a member of the band.... Here it was sought to be shown that the defendant belonged to the band of conspirators, by hearsay declarations of the conspirators themselves. This evidence, as said before, is clearly incompetent, and the trial judge correctly excluded it.

Commonwealth v. Ellis, 133 Ky. 625, 118 S.W. 973, 976 (1909). This same common law rule, referred to as “bootstrapping,” was also applied in the federal courts. Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) (“Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.”).

Now, preliminary rulings on admissibility are made under KRE 104(a):

Preliminary questions concerning ... the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) of this rule [relevancy conditioned on fact]. In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(Emphasis added.) The rule permits the trial court to consider hearsay evidence in making a preliminary finding of fact necessary to the admissibility of evidence. Kotila v. Commonwealth, 114 S.W.3d 226, 235 (Ky.2003); KRE 104(a) Drafters’ Commentary (1989). The issue then becomes what effect the adoption of KRE 104(a) had on the common law rule against “bootstrapping,” ie., using the out-of-court statement, itself, to prove the foundation requirements necessary for its admission into evidence? That was the issue we did not reach in Commonwealth v. King, 950 S.W.2d 807, 808 (Ky.1997), because the offense in King occurred prior to the adoption of the Kentucky Rules of Evidence. See KRE 107(b).

One of the objectives of the drafters of the Kentucky Rules of Evidence was to achieve uniformity with the Federal Rules of Evidence (FRE) to the extent possible and to depart from the Federal Rules only for good reason. KRE Study Committee, Pi'efatory Note (1989). KRE 104(a) is identical to FRE 104(a); and in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), the United States Supreme Court specifically addressed the effect of FRE 104(a) on the foundation requirements for admission of out-of-court statements by coconspirators. Bourjaily held that FRE 104(a) authorizes a trial court, when making the preliminary factual determinations that a conspiracy existed and that the defendant and the declarant were participants in it, to consider hearsay evidence, including the out-of-court statement whose admissibility is at issue. Id. at 181, 107 S.Ct. at 2781 (“To the extent that Glasser meant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a).”). However, the Court expressly left undecided the question of whether the existence of a conspiracy and the defendant’s participation in it could be proven solely by such statements. Id. (“We need not decide in this case whether the courts below could have relied solely upon Lonardo’s hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence.”).

The federal rule regarding out-of-court statements by coconspirators, FRE 801(d)(2)(E), was amended in 1997 to add the following:

The contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

The Advisory Committee’s Note to the 1997 amendment states that the amendment is in accordance with the existing practice of every court of appeals that has resolved the issue. Fed.R.Evid. 801 advisory committee’s note. Indeed, in the ten years between Bourjaily and the 1997 amendment, every federal court of appeals that considered the issue held that the existence of a conspiracy and the participation in it by the defendant and the declarant could not be proven solely by the out-of-court statement of an alleged cocon-spirator. There must be some independent corroborating evidence to support the trial court’s finding of fact under KRE 104(a). E.g., United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.1994); United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir.1993); United States v. Beckham, 968 F.2d 47, 51 (D.C.Cir.1992); United States v. Gambino, 926 F.2d 1355, 1361 n. 5 (3d Cir.1991); United States v. Byrom, 910 F.2d 725, 736 (11th Cir.1990); United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir.1989); United States v. Silverman, 861 F.2d 571, 577-78 (9th Cir.1988); United States v. Daly, 842 F.2d 1380, 1386 (2nd Cir.1988); United States v. Zambrano, 841 F.2d 1320, 1344-45 (7th Cir.1988); United States v. Hernandez, 829 F.2d 988, 993 (10th Cir.1987).

KRE 801A(b)(5) is silent on this issue, as was FRE 801(d)(2)(E) prior to the 1997 amendment. However, the drafters of the Kentucky Rules of Evidence noted that the rule was identical to preexisting Kentucky law, KRE 801A Drafter’s Commentary (1989), while also noting that KRE 104(a) permits trial courts to “consider hearsay evidence in resolving such questions ... even weigh the very evidence whose admissibility is dependent upon determination of the preliminary question,” citing Bourjaily. KRE 104 Drafter’s Commentary (1989). As pointed out supra, pre-existing Kentucky law required preliminary proof of the existence of a conspiracy and participation in it by both the defendant and the declarant, but did not permit any “bootstrapping,” ie., the alleged coconspirator’s out-of-court statement could not be used to prove those facts. We conclude, as did the U.S. Supreme Court in Bourjaily and the drafters of our rules, that KRE 104(a) now permits partial “bootstrapping” to the extent that the trial court may consider the challenged out-of-court statement in making the required preliminary findings. However, we also conclude, as did every federal court of appeals that considered the issue before the 1997 amendment of FRE 801(d)(2)(E), that the foundational requirements cannot be proven solely by the out-of-court statement of an alleged coconspirator but must be supported by some independent corroborative evidence of those facts. Since there was no independent corroborative evidence of a “perjury conspiracy” in this case outside the inference the Commonwealth draws from the statement in DeWitt’s letter, the trial court erred in admitting the excerpt from the letter into evidence. Meredith v. Commonwealth, 959 S.W.2d 87, 91 (Ky.1997).

We reject the Commonwealth’s argument that Appellant somehow waived or cured the error by subsequently attempting on surrebuttal to attribute a non-conspiratorial meaning to the excerpt from DeWitt’s letter, ie., that DeWitt had previously been incarcerated in Kentucky, was fearful of Kentucky authorities, and feared that the alibi witnesses would be charged with perjury if they were mistaken in their testimony. In Salinas v. Commonwealth, 84 S.W.3d 913 (Ky.2002), we held that defense counsel did not waive such error by cross-examining a witness who had been allowed to testify to inadmissible hearsay evidence:

If that were true, any party against whom evidence was improperly admitted would be required to forego cross-examination and enhance the risk of losing at trial, or attempt to cross-examine in an effort to mitigate the prejudicial effect of the evidence and thereby be deemed to have acquiesced in the error.

Id. at 919. Appellant’s attempted explanation on surrebuttal falls into the same category and thus does not constitute a waiver of the trial court’s error.

IV. IDENTIFICATION OF REAL EVIDENCE.

Thomas Hinkle, Appellant’s ex-stepson, testified that Appellant was like a father to him. On June 25, 2001, the two met at a gas station owned by Hinkle’s mother (Appellant’s ex-wife) in Berea, Madison County, Kentucky. After they conversed for approximately fifteen minutes, officers of the Berea Police Department arrived and arrested Appellant on a charge of being a convicted felon in possession of a firearm. The officers arranged for Powell’s Towing Service to tow Appellant’s vehicle to Powell’s property for storage. Hinkle knew that Appellant kept a pistol hidden in the engine compartment of the vehicle. That night, he entered Powell’s property, broke open the hood of the vehicle, and retrieved the pistol, “because I was thinking I was taking years off his life, and don’t want to see my father go to the penitentiary for the rest of his life.” Hinkle testified that he gave the pistol to Appellant’s friend, Dennis Yarber. When the prosecutor displayed a gun and holster to Hinkle, the following colloquy ensued:

Q. Do you recognize this gun and holster?
A. Yes, I do.
Q. To the best of your knowledge, is this the gun that you got from....
A. I have no idea of whether it is or not.
Q. But to the best of your knowledge, is it?
A. Like I told you, I guess it is. I have no idea whether it is or....
Q. It looks like it?
A. Well, that’s been months ago. Like I told you, I have been in a mental institution, and I am incompetent and I couldn’t even tell you. Do you know what I mean? You all got me a nervous wreck. I know that’s the reason I am here, but I don’t know — I can’t — that’s all I can say.

Dennis Yarber testified that on June 26, 2001, Hinkle brought him a gun wrapped in terry cloth that Yarber thought was going to be a snub-nosed .38 caliber revolver. Hinkle told Yarber that “he bought it off some kid for pot” and offered to sell it to Yarber. When Yarber removed the terry cloth, he discovered that the gun was not a .38 caliber revolver but a 9-mm pistol. Yarber declined to purchase the gun but told Hinkle he would keep it for him. Six hours later, police officers arrived at Yarber’s residence and confiscated the gun. The prosecutor then showed Yarber the same 9-mm pistol he had previously displayed to Hinkle, and Yarber identified the gun as being the one that Hinkle had left with him.

Detective Barnes testified that he sent the gun to a laboratory for testing but that it was found to contain no fingerprints, blood stains, or traces of skin. Appellant testified that he owned a snub-nosed .38 revolver and a sawed-off shotgun, but not a 9-mm pistol. Detective Barnes searched Appellant’s vehicle and found some .38 caliber ammunition but did not find any 9-mm ammunition. (He also did not find any property stolen from the Boones, though he did find the green shirt that Mrs. Boone identified as being similar to the one worn by the male perpetrator on the night of the robbery.)

The Commonwealth did not display the 9-mm pistol to either of the victims during trial or ask either of them to describe the pistol brandished by the male perpetrator during the robbery. Detective Barnes testified twice during the Commonwealth’s case-in-ehief. During his first testimony, he described his investigation of the crime scene and his search of Appellant’s vehicle. During his second testimony, he identified the 9-mm pistol as being the pistol obtained from Yarber. The only evidence purporting to identify the pistol used in this .robbery was the follqwing colloquy between Barnes and the prosecutor at the conclusion of Barnes’s testimony about his search of the vehicle:

■ Q. Detective Barnes, what was the description of the gun that the perpetrator had?
A. A blue steel automatic.
Q. You did not find that in the vehicle? A. No.

Barnes did not state from whom he obtained the description or that the 9-mm pistol obtained from Yarber fit that description. Neither the pistol nor a photograph of it is in this record, thus we have no way of knowing whether the 9-mm pistol was a “blue steel automatic.” But even if it were, Barnes’s testimony, standing alone, was insufficient to identify that 9-mm pistol as the pistol used in the robbery.

The requirement of ... identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

KRE 901(a). That is but another way of saying that:

The identification requirement for tangible evidence ... is grounded in a logical demand that, when offering a tangible object into evidence, a- party should show, as a preliminary matter, its connection to the incident involved in the litigation.

Lawson, supra, § 11.00[2][a], at 840. We have upheld the admission of weapons into evidence based on eyewitness testimony that the weapon was the one used in the commission of the offense, Beason v. Commonwealth, 548 S.W.2d 835, -836-37 (Ky.1977); that it was of the same size and shape as the weapon used in the commission of the offense, Sweatt v. Commonwealth, 550 S.W.2d 520, 523 (Ky.1977); or that it was found at the scene of the offense and was capable of inflicting the type of injury sustained by the victim, Barth v. Commonwealth, 80 S.W.3d 390, 402 (Ky.2001); Grundy v. Commonwealth, 25 S.W.3d 76, 79-80 (Ky.2000). However, in Reed v. Commonwealth, 579 S.W.2d 109 (Ky.1979), we held that testimony that it “looks like my gun but I couldn’t swear to it,” was insufficient identification to justify its admission into evidence:

It is apparent from the evidence that appellant’s statement that the gun looked like his falls far short of the standards of admissibility which would tend to prove that the gun was the one actually used by appellant in the robbery and subsequent shooting.

Id. at 111. In retrospect, Reed probably pushed the identification requirement too far. See United States v. Johnson, 637 F.2d 1224, 1247-48 (9th Cir.1980) (absolute certainty of identification not required; uncertainty affects weight, not admissibility), abrogated on other grounds by Schmuck v. United States, 489 U.S. 705, 715, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Under Reed, Hinkle’s uncertain identification of the 9-mm pistol (“I guess it is.”) would have been insufficient to prove that it was even the pistol that he retrieved from the engine compartment of Appellant’s vehicle. While we are unwilling to go that far, no evidence, direct or circumstantial, competent or incompetent, identified the 9-mm pistol allegedly found in Appellant’s vehicle, nine days after the robbery as the pistol used in the robbery. Unless additional identification evidence is produced upon retrial, the evidence concerning the pistol shall not be admitted.

Y. DESCRIPTION AND PHOTOGRAPH OF CO-PERPETRATOR.

Mrs. Boone testified that the female perpetrator was the same woman she had seen in the R & D Food Mart shortly before the robbery. The store had a surveillance camera, and Mrs. Boone was able to identify the woman from the surveillance photographs. She also assisted the sketch artist in preparing a depiction of the woman. The female perpetrator was never identified or charged and, obviously, this was not a joint trial. Nevertheless, the Commonwealth was allowed to introduce into evidence the surveillance camera photographs and the sketch artist’s depiction of the woman. Appellant claims the photographs and depiction should have been excluded as irrelevant. We disagree.

Implicit in [the concept of relevancy] are two distinct requirements:
(1) the evidence must tend to prove the matter sought to be proved; and
(2) the matter sought to be proved must be one that is of consequence to the determination of the action.

United States v. Waldrip, 981 F.2d 799, 806 (5th Cir.1993).

An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not.... It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable.

Lawson, supra, § 2.05[3], at 80 (quoting Edward W. Cleary, McCormick on Evidence 542-43 (3d ed.1984)).

Appellant’s defense was an alibi. The Commonwealth’s best evidence was Mrs. Boone’s eyewitness identification of Appellant as the male perpetrator. Thus, her credibility, particularly her powers of observation and recall, were at issue. Her ability to identify the female perpetrator as the person she had observed only briefly in the food mart heightened the credibility of her identification of Appellant, a person whom she was able to observe continuously for a period of fifteen to twenty minutes.

VI. ALLEGED COMMENT ON SILENCE.

Appellant asserts that Detective Barnes was improperly permitted to comment on his post-arrest silence. Not only is this issue unpreserved, it is completely merit-less.

Kentucky does not have a notice-of-alibi rule, see generally, Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and the prosecutor claimed to be surprised by the testimony of the four alibi witnesses. To impeach their credibility, he inquired of each why, if the witness knew Appellant was in Ohio at the time of the robbery, he or she had not come forward sooner to clear Appellant’s name. Appellant then took the stand in his own defense. When asked on cross-examination why he had not told his alibi witnesses to tell their story to the police so that he could get out of jail, Appellant responded that “I knew it was better to just keep your mouth shut,” and “my lawyer told me not to say nothing to nobody.” Detective Barnes then testified in rebuttal that if any of the alibi witnesses had come forward sooner, he would have investigated whether Appellant was in Ohio at the time of the robbery and, if satisfied that the alibi was true, dropped the charges.

Detective Barnes only commented on the silence of the alibi witnesses. The only person who commented on Appellant’s post-arrest silence was Appellant, himself.

VII, SUFFICIENCY OF THE EVIDENCE.

Appellant’s argument that the Commonwealth’s evidence was insufficient to sustain a conviction is premised primarily upon his claim that Mrs. Boone’s in-court identification should have been suppressed. Even if that were so, he would only be entitled to a new trial, not a dismissal of the charges. Lockhart v. Nelson, 488 U.S. 38, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988); Osborne v. Commonwealth, 43 S.W.3d 234, 245 (Ky.2001). Nevertheless, we have held that Mrs. Boone’s eyewitness identification of Appellant as the perpetrator was admissible. Her testimony alone was sufficient to support Appellant’s conviction. LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky.1962) (robbery conviction supported by uncorroborated testimony of single witness); Adams v. Commonwealth, 560 S.W.2d 825, 826-27 (Ky.App.1977) (same, even though there were seven alibi witnesses for the defense).

Accordingly, the judgment of conviction and the sentence imposed therefor are reversed and this case is remanded to the Montgomery Circuit Court for a new trial in accordance with the content of this opinion.

• LAMBERT, C.J.; GRAVES, JOHNSTONE, and KELLER, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion, with SCOTT, J., joining that dissenting opinion.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because the trial judge did not commit error in admitting the excerpt from the letter written to Gerlaugh that was intercepted by jail authorities. The contention that the letter was prejudicial hearsay ⅛ unconvincing. KRE 801A(b)(5) states as follows:

A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is: A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Here, the letter was evidence of a conspiracy to perjure testimony at trial. This evidence, albeit circumstantial, showed a conspiracy between Gerlaugh and others to perjure testimony. Gerlaugh stated he could not remember whether he got a letter, however, he then proceeded to explain the meaning of the letter. Based on this testimony, the trial judge did not abuse his discretion and was entirely correct in making a reasonable inference that the letter belonged to the defendant. The statement in question was made in furtherance of a conspiracy to commit perjury because the author directed Gerlaugh to discover the evidence of the prosecution before anyone perjured their testimony.

Moreover, any possible error in admitting the letter into evidence was waived when Gerlaugh testified at trial in an effort to explain the meaning of the letter. He clearly compromised his contention that he was deprived of his right of confrontation and due process. The statements of co-conspirators, when made in the course of any furtherance of the conspiracy, are beyond the purview of the hearsay exclusion. Cf. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

I would affirm the conviction in all respects.

SCOTT, J., joins this dissenting opinion.


author: /s/ Joseph E. Lambert Chief Justice

text:
    David Michael SPROULL, Movant v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 1999-SC-0597-KB.
    Supreme Court of Kentucky.
    Feb. 17, 2005.
   OPINION AND ORDER

Movant, David M. Sproull, seeks reinstatement to the Kentucky Bar Association (KBA). Movant was originally admitted to practice law in Kentucky in August 1977. On July 6, 1995, this Court entered an Order temporarily suspending Movant from the practice of law in Kentucky for a period of two (2) years. Movant’s temporary suspension resulted from his participation in a scheme to “kick back” a portion of his salary increase to his employer to defray his employer’s campaign debts. Ky. Bar Ass’n v. Sproull, 901 S.W.2d 44 (Ky.1995).

After paying the costs associated with his disciplinary proceedings, fulfilling the notification requirements of our Order, and fully serving his two-year suspension, Movant applied for reinstatement to the KBA, under SCR 3.510. Upon reviewing Movant’s record, conducting a full investigation, and participating in a formal hearing with Movant, the KBA’s Character and Fitness Committee recommended approval of Movant’s reinstatement application. The KBA Board of Governors reviewed the Committee’s findings and recommendations, and unanimously recommended Movant’s reinstatement. On October 27, 2004, Movant took the special examination for reinstatement to the KBA, in accordance with SCR 3.500(3). The Kentucky Board of Bar Examiners has certified that Movant received a passing score on this examination and has also recommended Movant’s readmission to the KBA. We therefore accept the foregoing recommendations. Pursuant to SCR 3.510(1), Mov-ant posted a $2500.00 bond, from which costs of his reinstatement proceedings have been deducted. Accordingly, the application for reinstatement filed by Mov-ant, David M. Sproull, is hereby granted.

All concur.

ENTERED: February 17, 2005.

/s/ Joseph E. Lambert Chief Justice


author: VANMETER, Judge.

text:
    David DENNIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-CA-002176-MR.
    Court of Appeals of Kentucky.
    July 30, 2004.
    Discretionary Review Denied by Supreme Court March 9, 2005.

      Richard Hoffman, Assistant Public Attorney, Department of Public Advocacy, Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before BARBER, SCHRODER and VANMETER, Judges.
   OPINION

VANMETER, Judge.

This is an appeal from the Menifee Circuit Court’s judgment and sentence after appellant David Dennis entered a conditional guilty plea to three counts of incest. Appellant contends that the trial court erred in not granting his motion to dismiss the indictment against him. We affirm.

Appellant was indicted on June 14, 2001, of three counts of incest for having sexual intercourse with his stepdaughter between July 31, 1999, and January 31, 2000. On August 8, 2002, appellant pled guilty to the three counts of incest, conditioned on his ability to appeal the issue of whether Kentucky’s incest statute, KRS 530.020, prohibits sexual intercourse between a stepparent and stepchild. Appellant was subsequently sentenced to serve six years on each count of incest, to be served concurrently. This appeal followed.

KRS 530.020(1) provides as follows:

A person is guilty of incest when, he has sexual intercourse or deviate sexual intercourse, as defined in KRS 510.010, with a person whom he knows to be an ancestor, descendant, brother, or sister. The relationships referred to herein include blood relationships of either the whole or half blood without regard to legitimacy, relationship of parent and child by adoption, and relationship of stepparent and stepchild.

Appellant contends that the only possible interpretation of KRS 530.020 leads to the conclusion that Kentucky’s incest law does not prohibit a sexual relationship between a stepfather and his stepdaughter. He interprets the second sentence of KRS 530.020 as prohibiting sexual intercourse or deviate sexual intercourse between an adoptive parent and adoptive child, or between a stepparent and stepchild, only if there also exists between the two persons a blood relationship of either the whole or half blood. We disagree.

As appellant asserts, it is a well-known rule of statutory construction that “[a]n unambiguous statute is to be applied without resort to any outside aids.” Delta Air Lines, Inc. v. Commonwealth of Kentucky, Revenue Cabinet, Ky., 689 S.W.2d 14, 19 (1985). However, it is also well established that when construing a statute, a court must “ascertain and give effect to the intent of the General Assembly.” Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994). Thus, in construing KRS 530.020, we must consider proposed interpretations of the statute in light of the General Assembly’s legislative intent.

Kentucky’s preceding incest statute, KRS 436.060, prohibited carnal knowledge of a person known to be the defendant’s “father, mother, child, sister or brother.” Cooper v. Commonwealth, Ky.App., 374 S.W.2d 481, 483 (1964). KRS 436.060 was replaced in 1975 by KRS 530.020, as set out in pertinent part above. The commentary to 530.020 addressed the statutory change as follows:

KRS 530.020 will make some changes in former Kentucky law which prohibited only the parent-child lineal relationship, including a blood relationship either of the whole or the half blood without regard to legitimacy. KRS 530.020 extends the prohibited lineal relationship to include ancestors and descendants. KRS 530.020 also extends this relationship to include the relationship of parent and child by adoption and the relationship of step-parent and stepchild.

(Emphasis added.) Thus, the commentary unmistakably provided that the legislature intended to prohibit sexual intercourse between stepparents and their stepchildren.

Further, it is otherwise clear from our review of the statute that the phrase “blood relationships of either the whole or half blood without regard to legitimacy” is intended to be read as a whole. As Kentucky Attorney General opinion OAG 79-416 points out, this phrase codified the decision set out in Cecil v. Commonwealth, 140 Ky. 717, 131 S.W. 781 (1910), which held that a defendant could be convicted of incest for having sexual intercourse with his child, even if the child was illegitimate, i.e., born out of lawful wedlock. Thus, the second sentence of KRS 530.020 must be interpreted as the Attorney General did in OAG 79-416: The [prohibited] relationships referred to herein include (1) blood relationships of either the whole or half blood without regard to legitimacy, (2) relationship of parent and child by adoption, and (3) relationship of stepparent and stepchild.

Additionally, on occasion Kentucky courts have referred to KRS 530.020 as prohibiting sexual relationships between stepparents and them stepchildren. In Talbott v. Commonwealth, Ky., 968 S.W.2d 76, 85 n. 1 (1998), the Supreme Court of Kentucky cited KRS 530.020 in stating that “sexual intercourse between stepparent and stepchild is incest[.]” Although appellant correctly notes that this statement was dicta in an opinion regarding a murder conviction and therefore is not dis-positive of the matter now before us, the statement nonetheless shows that Kentucky’s highest court has viewed KRS 530.020 as prohibiting sexual intercourse between stepparents and them stepchildren. Moreover, in Collins v. Commonwealth, Ky., 951 S.W.2d 569 (1997), the Supreme Court affirmed an incest conviction against a defendant who sexually abused his stepdaughter without addressing the fact that the victim was his stepdaughter. Thus, the Kentucky Supreme Court has impliedly concluded that KRS 530.020 prohibits sexual intercourse between a stepparent and stepchild. See also Mitchell v. Commonwealth, Ky., 777 S.W.2d 930, 933 (1989) (although incest conviction was overruled on other grounds, the defendant’s stepparent relationship to the victim was noted in the dissent).

Next, we are not persuaded by appellant’s contention that Kentucky’s marriage statute, KRS 402.010, compels a different interpretation of KRS 530.020. Simply put, appellant did not marry the victim in the matter before us, so the marriage statute is not relevant.

Finally, appellant argues that the rule of lenity requires us to reverse his conviction. We disagree. The rule to which appellant refers prescribes that “[i]n interpreting an ambiguous penal statute, doubt is to be resolved in favor of the accuséd.” Kirby v. Commonwealth, Ky. App., 132 S.W.3d 233, 236 (2004). This maxim does not compel our reversal of appellant’s conviction, however, as we have already determined that any ambiguity in the statute’s literal words is resolved by established legislative history and prior judicial interpretations.

The court’s judgment is affirmed.

ALL CONCUR.