HomeMy WebLinkAboutCP-21-CR-0000781-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES:
: (1) RAPE OF A CHILD
: (2) IDSI (VICTIM UNDER 16)
: (3) IDSI WITH A CHILD
v. : (4) STATUTORY SEXUAL ASSAULT
: (5) AGGRAVATED INDECENT ASSAULT
: ON A CHILD
: (6) AGGRAVATED INDECENT ASSAULT
: (7) INDECENT ASSAULT ON A CHILD
: (8) CORRUPTION OF MINORS
: (9) INDECENT ASSAULT
:
KENNETH JAMES CLARK :
OTN: K386405-5 : CP-21-CR-0781-2008
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., October 8, 2009.
In this Megan’s Law case, Defendant was found guilty by a jury on January 27,
2009, of rape of a child, a felony of the first degree, involuntary deviate sexual
intercourse, a felony of the first degree, involuntary deviate sexual intercourse with a
child, a felony of the first degree, statutory sexual assault, a felony of the second degree,
aggravated indecent assault on a child, a felony of the second degree, aggravated indecent
assault, a felony of the second degree, indecent assault on a child, a misdemeanor of the
first degree, corruption of minors, a misdemeanor of the first degree, and indecent
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assault, a misdemeanor of the second degree. This case was referred to the Pennsylvania
Sexual Offenders Assessment Board for purposes of an assessment as to whether
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Defendant should be classified as a sexually violent predator.
1
Order of Court, January 27, 2009.
2
Order of Court, January 27, 2009.
3
Based upon an affirmative response by the Board, the Commonwealth filed a
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praecipe for a hearing on the issue, which was held on August 24, 2009. At the hearing,
the Commonwealth and Defendant stipulated as to the expertise in the area of inquiry of
Nancy W. Einsel, M.S., CCMHC, LPC, a member of the Pennsylvania Sexual Offenders
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Assessment Board. A copy of Ms. Einsel’s report regarding Defendant was placed in the
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record and she testified in accordance with its contents. No other testimony was
presented.
For the reasons stated in this opinion, Defendant will be determined to be a
sexually violent predator.
STATEMENT OF LAW and FINDINGS OF FACT
Statement of Law
A predatory act is defined in Section 9792 of the Judicial Code as “[a]n act
directed at a stranger or at a person with whom a relationship has been initiated,
established, maintained or promoted, in whole or in part, in order to facilitate or support
victimization.” Section 9792 defines “sexually violent predator” as:
A person who has been convicted of a sexually violent offense
as set
who is determined to
forth in section 9795.1 (relating to registration) and
be a sexually violent predator
under section 9795.4 (relating to
due to a mental abnormality or personality disorder that
assessments)
makes the person likely to engage in predatory sexually violent
offenses
.... (Emphasis added.)
A “mental abnormality” is defined in Section 9792 as “[a] congenital or acquired
condition of a person that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual acts to a degree
that makes the person a menace to the health and safety of other persons.”
The burden of establishing that the defendant is a sexually violent predator is on
the Commonwealth. 42 Pa. C.S. §9795.4(e)(3). S.V.P. status must be established by
3
Commonwealth’s Ex. 2, Hearing, August 24, 2009.
4
Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), filed May 21, 2009.
5
Notes of Testimony, 5-12, Hearing, August 24, 2009 (hereinafter N.T. ___).
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Commonwealth’s Ex. 2, Hearing, August 24, 2009.
2
clear and convincing evidence. Clear and convincing evidence is evidence that is “so
clear, direct, weighty, and convincing as to enable [the fact finder] to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.” Lessner v.
Rubinson, 527 Pa. 393, 400, 592 A.2d 678, 681 (1991) (citations omitted). In
Commonwealth v. Krouse, the Superior Court of Pennsylvania stated:
[W]e strongly recommend that trial courts present specific findings of fact
regarding the findings necessary for a SVP determination as defined in
Section 9792 and the factors specified in Section 9795.4(b) which the
legislature has deemed relevant.
Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. 2002).
Section 9795.4(b) of Megan’s Law II specifies that an assessment shall include,
but not be limited, to the following:
(1)Facts of the current offense, including:
i.Whether the offense involved multiple victims.
ii.Whether the individual exceeded the means necessary to achieve the
offense.
iii.The nature of the sexual contact with the victim.
iv.Relationship of the individual to the victim.
v.Age of the victim
vi.Whether the offense included a display of unusual cruelty by the
individual during the commission of the crime.
vii.The mental capacity of the victim.
(2)Prior offense history, including:
i.The individual’s prior criminal record.
ii.Whether the individual completed any prior sentences.
iii.Whether the individual participated in available programs for sexual
offenders.
(3)Characteristics of the individual, including:
i.Age of the individual.
ii.Use of illegal drugs by the individual.
iii.Any mental illness, mental disability or mental abnormality.
iv.Behavioral characteristics that contribute to the individual’s conduct.
(4)Factors that are supported in a sexual offender assessment field as criteria
reasonably related to the risk of reoffense.
42 Pa. C.S.A. §9795.4(b).
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Findings of Fact
The female victim in this case, whose date of birth was September 28, 1993, knew
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Defendant through their residing in the same neighborhood. Defendant had sexual
relations with the victim from the time she was 11 years old until she reached the age of
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13. The victim reported that:
Mr. Clark had sex with her in his bed and in her bed when her mother was
not home. She stated both Mr. Clark and Ms. Rowe [Defendant’s
girlfriend, later wife] would watch her mother leave the house and then
call the victim to ask where her mother had gone. They would then go to
the victim’s house and have sex with her. The victim reported that
sometimes Mr. Clark would come alone to have sex with her; sometimes
Ms. Rowe would come alone to have sex with her; and sometimes they
would come together. The victim reported that the sexual acts also
occurred in Mr. Clark’s truck. The victim stated that both Mr. Clark and
Ms. Rowe licked her vagina and she had to lick Ms. Rowe’s vagina. The
victim described “white stuff” coming out of her vagina and Ms. Rowe
after they engaged in intercourse with Mr. Clark. She stated that Mr.
Clark commented that he did not want to get the victim pregnant “yet.”
The victim reported that Mr. Clark told her that he was going to die and
wanted to eventually get either Ms. Rowe or the victim pregnant so that
they could give him a son. The last sexual assault occurred on 8/25/07 at
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the Budget Host Inn off of Interstate 81 in Shippensburg, PA.
With respect to the specific statutory factors enumerated in the Judicial Code as
being of particular relevance to a determination of whether a person is a sexually violent
predator, the following additional findings are made:
Victim characteristics. The only victim was an 11- to 13-year-old female
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who was prepubescent at the time of the commencement of the instant offenses.
Means necessary to commit offense. The actions of Mr. Clark in the
commission of the instant offense did not exceed the means necessary to achieve
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the offense.
7
Commonwealth’s Ex. 2, at 1.
8
Commonwealth’s Ex. 2, at 2.
9
Commonwealth’s Ex. 2, at 2.
10
Commonwealth’s Ex. 2, at 3.
4
Nature of sexual contact. Mr. Clark performed penis/vagina intercourse on
the victim on numerous occasions over a two-year period of time. She reported
that he told her the first time they had intercourse that he “popped her cherry,”
which caused pain. Mr. Clark also performed cunnilingus on the victim; made her
perform fellatio on him; photographed her performing cunnilingus on Ms. Rowe;
and photographed her performing fellatio on him. The sexual abuse occurred in
Mr. Clark’s residence, in the victim’s residence, in Mr. Clark’s truck and in a
motel room. Ms. Rowe would frequently be present during the sexual activity.
The victim also watched Mr. Clark have intercourse with Ms. Rowe. The victim
reported that “white stuff” came out of her and out of Ms. Rowe after intercourse
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with Mr. Clark.
Relationship to the victim. She was acquainted with Mr. Clark as a
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neighbor of Mr. Clark and Nichole Rowe, Mr. Clark’s then girlfriend, and later
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wife.
Age of the victim. The victim was an 11- to 13-year-old female who was
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prepubescent at the time of the commencement of the instant offenses.
Display of unusual cruelty. The record does not indicate that Mr. Clark
displayed unusual cruelty in the commission of the offense.
Mental Capacity of the victim. The victim had the mental capacity of an
11-to-13 year old child.
16
Prior offense history. Mr. Clark has no prior criminal history.
11
Commonwealth’s Ex. 2, at 4.
12
Commonwealth’s Ex. 2, at 3-4.
13
Commonwealth’s Ex. 2, at 3.
14
Commonwealth’s Ex. 2, at 3.
15
Commonwealth’s Ex. 2, at 3.
16
N.T. 25.
5
Age of the individual. Mr. Clark was 35 to 37 years old over the two-year
17
period in which the offense occurred. Mr. Clark was significantly older than the
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victim.
Use of illegal drugs. There is no indication that drugs or alcohol were a
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factor in this offense.
Mental illness, mental disability or mental abnormality. Mr. Clark was
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diagnosed with a mental abnormality. Specifically, he was diagnosed with
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Paraphilia NOS and Pedophilia.
Behavioral characteristics contributing to the conduct. Mr. Clark’s actions
suggest that he has an entitled, deceitful and manipulative approach to living,
leading an expert in the field to conclude that he “preys on individuals using them
for whatever purposes seem to serve him at the time and uses sex as a recreational
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tool, with no regard to the consequences to others.”
It was the opinion of the Commonwealth’s expert that Defendant meets the
23
criteria for a diagnosis of Pedophilia and Paraphilia NOS. It was the expert’s further
opinion that Defendant “meets the definition established by statute for predatory
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behavior.” Therefore, the expert “concluded with a reasonable degree of professional
certainty that Kenneth Clark meets the criteria set forth by statute to be classified as a
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Sexually Violent Predator.”
Based upon the foregoing and by clear and convincing evidence, the court
concludes that Defendant (a) has been convicted of a sexually violent offense as set forth
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N.T. 25.
18
N.T. 25.
19
N.T. 26.
20
N.T. 27.
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N.T. 27-29
22
Commonwealth’s Ex. 2, at 4.
23
Commonwealth’s Ex. 2, at 4.
24
Commonwealth’s Ex. 2, at 4.
25
Commonwealth’s Ex. 2, at 5.
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in section 9795.1 of the Judicial Code and (b) is likely to engage in predatory sexually
violent offenses. Accordingly, the following order shall be entered:
ORDER OF COURT
th
AND NOW this 8 day of October, 2009, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), and following a hearing
held on August 24, 2009, and for the reasons stated in the accompanying opinion,
Defendant is hereby determined to be a sexually violent predator, and he is directed to
appear for sentence on Tuesday, October 13, 2009, at 9:30 a.m. in Courtroom No. 1,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
Ellen K. Barry, Esq.
Assistant Public Defender
Cumberland County Adult Probation
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES:
: (1) RAPE OF A CHILD
: (2) IDSI (VICTIM UNDER 16)
: (3) IDSI WITH A CHILD
v. : (4) STATUTORY SEXUAL ASSAULT
: (5) AGGRAVATED INDECENT ASSAULT
: ON A CHILD
: (6) AGGRAVATED INDECENT ASSAULT
: (7) INDECENT ASSAULT ON A CHILD
: (8) CORRUPTION OF MINORS
: (9) INDECENT ASSAULT
:
KENNETH JAMES CLARK :
OTN: K386405-5 : CP-21-CR-0781-2008
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW this 8 day of October, 2009, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), and following a hearing
held on August 24, 2009, and for the reasons stated in the accompanying opinion,
Defendant is hereby determined to be a sexually violent predator, and he is directed to
appear for sentence on Tuesday, October 13, 2009, at 9:30 a.m. in Courtroom No. 1,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
8
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Ellen K. Barry, Esq.
Assistant Public Defender
Cumberland County Adult Probation