Bowen v. Haney (622 F. Supp. 2d 516, 2008)

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, Chief District Judge.

Petitioner has objected to the Magistrate Judge’s Findings of Fact, Conclusions of Law and Recommendations regarding his petition for writ of habeas corpus under 28 U.S.C. § 2254. The Magistrate Judge recommends that the petition be dismissed. The Court has review all of Petitioner’s objections to the report.

The Magistrate Judge has written a thorough opinion summarizing all the evidence and considering every disputed factual and legal issue. The Court agrees completely with the overall scope and specific conclusions of that opinion.

The two most controversial issues appear to concern the admission of the taped statement by Petitioner and the trial court’s refusal to grant a continuance due to the death of Petitioner’s proposed expert. The taped statement certainly does contain relevant material. It is certainly relevant that Petitioner masturbated in the same room where the victim slept and possibly did so on the person of the victim. Finally, the Court finds no violation of the Constitution or a fundamental fairness by the manner in which the trial court handled the motion in limine to exclude Petitioner’s expert. That proposed expert testimony would appear to have been an improper comment on Petitioner’s guilt or innocence. This Court believes that the manner was properly analyzed by the Kentucky Supreme Court and the United States Magistrate Judge. Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Magistrate Judge’s Findings of Fact, Conclusions of Law and Recommendations are AFFIRMED and the petition is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Petitioner’s request for certificate of appealability is DENIED.

This is a final and appealable order.

FINDINGS OF FACT CONCLUSIONS OF LAW AND RECOMMENDATION

DAVE WHALIN, United States Magistrate Judge.

INTRODUCTION

Petitioner William Edgar Bowen, Jr., is a Kentucky prisoner now serving a 20-year term of imprisonment at the North-point Training Center in Burgin, Kentucky. In 2003, a jury seated in circuit court’ of Bullitt County, Kentucky, convicted Bowen of sexual abuse in the first degree and sodomy in the first degree of a 12-year-old female, J.S., who claimed that Bowen sexually abused her in his home between 1992 and 1995.

Petitioner Bowen now challenges the constitutionality of his conviction on the grounds that: (1) the evidence offered at trial was constitutionally insufficient to establish his guilt; (2) his due process right to a fundamentally fair trial was denied by the improper admission of his pre-arrest taped statement; and (3) the trial court denied him his constitutional right to present a complete defense when it refused to grant him a continuance immediately prior to trial to obtain a replacement expert witness after his sole expert died unexpectedly.

Warden Steve Haney has filed a motion for summary judgment in which he argues that Petitioner Bowen’s application for habeas corpus relief must be dismissed with prejudice because the decision of the Supreme Court of Kentucky that affirmed his conviction is neither contrary to nor an unreasonable application of any clearly established precedent of the U.S. Supreme Court. Petitioner Bowen has filed a response in opposition. The Court has fully reviewed the state court record and trial transcript. Based on its review, the Magistrate Judge recommends that the petition be dismissed with prejudice and that Petitioner Bowen be denied a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1).

FINDINGS OF FACT

I. Procedural History.

On April 30, 2002, a state grand jury seated in Bullitt County, Kentucky, returned a two-count indictment against Petitioner Bowen (Transcript of Record (Tr. Vol. 1, pp. 15-16)). Count 1 charged that Bowen committed the offense of sexual abuse in the first degree by engaging in sexual contact with J.S., a female less than 12 years of age, beginning on or about November 1992, and continuing through December of 1995. (Id.). Count 2 charged that Bowen committed the offense of sodomy in the first degree by engaging in deviant sexual intercourse with J.S. during the same three-year period. (Id.). Bowen entered a plea of not guilty at arraignment on May 20, 2002, and was released on bond pending trial. (Tr. Vol. 1, p. 44). Trial was set to commence on December 17, 2002. (Id. at 57).

a. Motions in Limine.

Prior to trial, Bowen moved to exclude all hearsay testimony concerning out-of-court statements made by the victim, J. S., to Kentucky State Police (KSP) Detective Jonathan Tapp, or to any other witness called by the Commonwealth. (Tr. Vol.l, p. 92). Bowen additionally sought to suppress from evidence an audiotape recorded interview he had given to KSP Detective Tapp at his home on April 2, 2002, because the tape was irrelevant, “nonconfessory,” and unfairly prejudicial to the defense. Attached to the motion was a transcript of the tape recorded statement. (Tr. Vol.l, pp. 95-100). The transcript revealed that, after being advised of his Miranda rights, Petitioner Bowen acknowledged that it was possible that J.S. had witnessed him masturbating in the bedroom at his home. He also acknowledged that he kept some adult magazines in the bedroom. When asked during the recorded interview if it was possible that he went into the same bedroom to masturbate with the lights off while J.S. was napping in there, Bowen responded that such a situation was “very possible, very possible____” (Id. at 96). When asked if J.S. ever put her mouth on his penis, Bowen responded, “I wouldn’t think so. No, just flat no. I can’t see where that would be possible, even if I was sleeping.” (Id. at 97).

Faced with this motion, the trial court set a suppression hearing for November 22, 2002. (Tr. Vol. 1, p. 101). On the scheduled hearing date, Petitioner Bowen’s counsel provided the court a memorandum in support of his motion in limine. (Tr. Vol. 1, pp. 138-149). The Commonwealth filed its own memorandum five days later. (Tr. Vol. 1, pp. 103-137). Counsel argued about whether the recorded statement was relevant under Kentucky Rule of Evidence (KRE) 401 and whether its probative value was substantially outweighed by the danger of undue prejudice so as to justify exclusion under KRE 403. The prosecutor’s position was that the taped statement was highly relevant, and not unduly prejudicial, because the Defendant admitted that he masturbated in the bedroom, where the victim alleged that the offense occurred, admitted that the victim took naps in this bedroom, and that he may not have seen her there while he was masturbating. The prosecutor also pointed out that Petitioner Bowen’s response to the detective’s question concerning possible genital contact with the victim’s mouth was initially equivocal.

Defense counsel maintained that the recorded statement, at most, showed merely a proclivity for masturbation. Whether the victim may have observed any such activity did not tend in any fashion to prove the charges against the Petitioner, which he denied in his taped statement. Even if the statement were relevant, defense counsel insisted that its minimal probative value was substantially outweighed by the danger of undue prejudice. The recorded statement, reasoned the defense, was inadmissible as other bad acts under KRE 404(b) to prove the character of the Petitioner, who was never advised prior to giving his recorded statement of the nature of the accusations or the time at which these alleged events supposedly occurred 7-9 years earlier.

On December 3, 2002, the trial court entered a brief order in which it rejected the Petitioner’s argument that the probative value of his recorded statement was substantially outweighed by the danger of undue prejudice. (Tr. Vol. 2, p. 196). Immediately following this ruling, Petitioner’s attorney moved the trial court to continue the scheduled trial date from December 17, 2002, due to the scheduled foot surgery of the Petitioner’s sole expert witness, Dr. Richard Gardner, a licensed psychiatrist, who counsel characterized as being “an indispensable witness for Defendant.” {Id. at 205). Attached to the motion to continue was the affidavit of Dr. Gardner, a Board certified child psychiatrist and medical college faculty member of Columbia University, -who averred in his affidavit that based upon his interview with Petitioner Bowen, Bowen’s spouse and his examination of the audiotape recorded statement, his opinion was that “It is highly unlikely that he [Petitioner Bowen] perpetrated the alleged pedophilie acts.” {Id. at 209).

This defense motion resulted in a motion in limine by the prosecution to exclude the testimony of Dr. Gardner. (Tr. Vol. 2, pp. 219-264). Specifically, the prosecution moved the exclude any mental health professional, including Dr. Gardner, from testifying that the psychological profile of Petitioner Bowen was inconsistent with that of a sex offender or offering an opinion as to whether Bowen committed the charged acts in the indictment. The prosecution based its motion, in part, on the argument that the question of whether Petitioner Bowen committed the charged acts was a question of fact solely within the province of the jury and not a proper subject for expert testimony. The prosecutor further argued that the proffered expert opinion was neither relevant nor reliable. (Tr. Vol. 2, pp. 219-264).

Faced with this motion, the trial court ordered the parties to furnish it with additional authority on the question of whether a Daubert hearing was necessary in light of the prosecution’s motion in limine. (Tr. Vol. 2, p. 265). The trial court entered a separate order that continued the jury trial to February 27, 2003. (Id. at 266). In compliance with the order of the trial court, the prosecution filed a copy of the opinion of the Kentucky Supreme Court rendered in Tungate v. Commonwealth, 901 S.W.2d 41 (Ky.1995) in which the Supreme Court upheld the exclusion in a separate prosecution of the same pedophile profile testimony by Dr. Gardner as being an invasion of the province of the jury and unreliable. (Tr. Vol. 2, pp. 267-77).

Petitioner Bowen’s attorney responded with a memorandum of law in which he argued that a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and KRE 702 was required to determine whether Dr. Gardner’s proposed expert testimony was based on scientific knowledge that would assist the trier of fact to understand a fact at issue. (Tr. Vol. 2, p. 278-300). According to the defense, the proposed expert testimony of Dr. Gardner was highly relevant as pedophilia is a recognized sexual disorder which is capable of diagnosis; consequently, an expert opinion that Petitioner Bowen did not meet the criteria for pedophilia, and therefore was unlikely to commit any pedophilic act, was clearly relevant and admissible. (Id. at 279). Defense counsel argued in this regard that if the Petitioner’s proclivity to masturbate, as suggested by his tape recorded interview, was admissible, then his non-proclivity for pedophilic sex acts must also be as relevant and admissible. (Id. at 280). Counsel added that Kentucky has abandoned the “ultimate issue” exclusionary rule previously relied on in the Tungate decision to exclude Dr. Gardner’s expert testimony on pedophilic characteristics in an earlier criminal trial. (Id. at 280-282).

b. The Daubert Proceedings.

On January 3, 2003, the trial court scheduled a Daubert hearing for February 27, 2003. (Tr. Vol. 3, p. 360). It rescheduled both the hearing and the jury trial to commence on May 27, 2003, to afford the prosecution additional time to secure its own expert witness. (Id. at 362). The trial court then ordered the defense to provide reciprocal discovery to the prosecution. (Tr. Vol. 3, p. 376). The defense provided the prosecutor with a copy of Dr. Gardner’s report on May 1, 2003. (Tr. Vol. 3, p. 377). The prosecution was ordered by the Court on May 19, 2003, to produce to the defense a copy of any reports of physical or mental examinations made in connection with the case. (Id. at 380). The prosecution then provided the defense with a copy of the curriculum vitae and biography of its own expert, Harvard-trained clinical psychologist Anna Salter, Ph.D., who the prosecutor advised the court was expected to testify that no scientific means exist to reliably determine the common characteristics of a pedophile. (Id. at 381-87).

As noted, the court rescheduled the Daubert hearing for the morning of trial. Unfortunately, over the weekend preceding the scheduled start of trial, Dr. Gardner began to experience extreme pain related to his prior foot surgery. He advised Petitioner Bowen’s trial counsel that he would not be able to attend the scheduled Daubert hearing, but offered to testify by telephone. As the doctor’s physical condition continued to deteriorate, he contacted trial counsel on Sunday, May 25, 2003, to advise that his pain was so severe that he would not be able even to testify by telephone. Bowen’s attorney attempted to contact opposing counsel by telephone the same day and filed an immediate motion pursuant to Kentucky Rule of Criminal Procedure (RCr) 9.04 to continue the scheduled start of trial.

Counsel included with his motion an affidavit setting out the anticipated expert testimony of Dr. Gardner that masturbation is not considered to be deviant sexual behavior, nor an indication of a proclivity for sexual abuse. (Tr. Vol. 3, pp. 415-445). Along with this motion, Bowen’s trial counsel renewed his motion to suppress the audiotape of Detective Tapp’s interview with the Defendant (Id. at 389-414, 484-86) and the motion to exclude any hearsay comment or opinions regarding such taped statement. (Tr. Vol. 3, pp. 446-448, 449-483).

On the morning of trial, counsel appeared before the court for the purpose of conducting a Daubert hearing. (Transcript of Evidence (TE) Vol. I, p. 3). At the outset, Petitioner Bowen’s attorney requested that the Court continue the trial date to allow Dr. Gardner sufficient time to physically recover so that he could personally attend and testify at a future date. (TE, Vol. I, pp. 3-5). The defense explained to the court its desire for Dr. Gardner to personally attend so that the Court could evaluate his credibility face-to-face and take testimony on the basis of the conclusions contained in Dr. Gardner’s 60-page report, which previously had been provided to the Court.

The defense acknowledged that under Pendleton, 685 S.W.2d 549 (Ky.1985), the Supreme Court of Kentucky had previously “declined to permit the admission of the kind of testimony that Dr. Gardner is going to give in this case.” (TE, Vol. I, p. 7). Counsel argued, however, that the dissent of Justice Leibson in Pendleton was now the judicial view in Kentucky — that to deny a defendant expert testimony of his mental condition, so as to establish that he does not possess the type of mind set of an individual who would perpetrate such a crime — would violate the defendant’s constitutional right to confront the evidence against him. (Id. at 7).

Petitioner Bowen’s attorney argued to the court that his client’s defense would be extremely prejudiced if Dr. Gardner was denied the opportunity to personally attend so as to testify at the scheduled Daubert hearing and later at trial. (Id. at 8). Unknown to counsel and the court at that time was that Dr. Gardner had died unexpectedly the prior day, thus rendering him unavailable in all senses of the term.

In response to the arguments of defense counsel, the court explained that the most recent Kentucky Supreme Court decision to discuss the requirements of a Daubert hearing was Commonwealth v. Christie, 98 S.W.3d 485 (Ky.2002) in which the trial court excluded expert testimony regarding eyewitness identification without conducting a Daubert hearing (TE, Vol. I, p. 9). The trial court explained that Christie holds that a trial court in such circumstances should only rule on the admissibility of expert testimony without first holding a Daubert hearing when the record is complete enough to measure the proposed testimony against the proper standards of reliability and diligence, such as where the record contains the proposed expert’s reports, affidavits, deposition testimony and the like. (Id. at 9-10).

The prosecution immediately followed the court’s comments with its view that Justice Leibson’s dissent in Pendleton is not the law in Kentucky. Rather, the court was better guided by the previously mentioned Tungate decision. (Id. at 11). The prosecutor further advised that the state had retained at some expense its own expert, Dr. Salter, who intended to testify that Dr. Gardner’s conclusions concerning application of a “pedophile profile” were far outside the mainstream of scientific opinion. Given that the trial court had access to Dr. Gardner’s expert report and affidavit, the prosecution argued that it had sufficient record before it to conduct a Daubert hearing without Dr. Gardner’s presence, particularly in light of the Tun-gate decision excluding the same proposed expert testimony by Dr. Gardner. (TE, Vol. I, pp. 12-13).

This argument led the defense to respond that the Tungate decision was decided under the prior Frye standard for admission of expert testimony and focused on the subsequently abandoned “ultimate issue” test. Petitioner Bowen’s trial attorney pointed out that almost ten years had passed since Dr. Gardner had proffered expert testimony in the Tungate trial; therefore, the evidence offered in support of his conclusions may well have changed. (Id. at 13-14). The defense protested that the doctor’s report was not a substitute for his testimony, which would involve the basis for the evaluation contained in the expert report and the criteria used. (Id. at 14). Counsel concluded that to deny the defense the opportunity to have Dr. Gardner testify would deny Petitioner Bowen his fundamental right to a fair trial and his right to present evidence to refute the prosecution’s case in violation of the Sixth Amendment to the U.S. Constitution and § 11 of the Kentucky Constitution. (Id. at 15).

Faced with these oral arguments, the trial court responded that the Tungate opinion addressed more than merely the “ultimate issue” basis. It also held that the “testimony and conclusions of Dr. Gardner lacked sufficient scientific basis for the opinions offered....” (TE, Yol. I, p. 16). Bowen’s attorney responded with, “I admit that, Judge, and there is no question about that.” (Id.). Counsel continued to add, however, that given the passage of time, the scientific basis for Dr. Gardner’s current report may well be significantly altered. (TE, Yol. I, p. 16-17). Counsel pointed out that Dr. Gardner used the same scientific criteria in his tendered expert report that are used to evaluate convicted prisoners and that the Kentucky Cabinet for Human Services uses the same type of profile determination to evaluate sexual abuse allegations. (Id. at 17-18).

The trial court initially expressed its concern that if it ruled on the admissibility of Dr. Gardner’s proposed expert testimony based solely on his report, then a strong possibility existed that “the Court of Appeals or the Supreme Court will reverse this case....” (Id. at 18). Nevertheless, the Court continued to observe that based on its knowledge of the law it did not believe that Dr. Gardner’s testimony would be admissible. (Id. at 19). The court then reviewed Dr. Gardner’s report. (Id.). It noted that nothing indicated yet whether the prosecution would even use the term “pedophile” during the Petitioner’s trial. (Id. at 20). After the Commonwealth advised that it did not believe that the term “pedophile” would be used, the court ordered the report of Dr. Gardner to be filed in the record and ruled that it would proceed with the Daubert hearing without the doctor’s presence.

Based on its review of the report, the court observed that the entire report ran to the issue of pedophilia; however, no requirement existed that the prosecution establish that Defendant Bowen was a pedophile in order to convict him of sexual abuse in the first degree and sodomy in the first degree. (Id. at 20-21). Accordingly, the court concluded, “Whether or not this defendant is a pedophile, I don’t think really has anything to do with this case.” (Id. at 21).

This ruling led the defense to reiterate that Defendant had a right to have Dr. Gardner present given that his report did not encompass the full scope of his anticipated testimony, which included the protocol and basis for his findings. (Id.). Further, the defense noted that Detective Tapp in his own report had used the term “pedophile.” Defense counsel observed that if Dr. Gardner were not permitted to testify to the mental condition of Petitioner, then the Petitioner would be denied his right to present a defense to a bare allegation that he committed sexual abuse and sodomy, thereby turning the trial into a swearing match. (TE, Vol. I, p. 22).

The trial court, for its part, restated its own view regarding the relevance of Dr. Gardner’s report, stating:

But in reading Dr. Gardner’s report, his entire report — to repeat myself — addresses the various factors that go to making up or not making up the personality of a pedophile. And I don’t see that pedophilia necessarily has anything to do with this case.

In the opinion of the court this proffered testimony by Dr. Gardner is so outside the realm of the proof required to show that these crimes were committed, and this defendant committed them, should not under any circumstances be admissible. You’re offering Dr. Gardner’s testimony to show this man doesn’t have the profile of a pedophile. I keep hammering home the fact that he’s not charged with being a pedophile. He is charged with sodomy of a 12-year-old child and sexual abuse in the first degree.

(TR, Vol. 1, pp. 24-26).

The trial court then granted counsel a brief recess to discuss the situation among themselves, upon which they returned to advise the trial court that they had just learned of Dr. Gardner’s untimely death. (Id. at 27). Defense counsel then renewed his motion to continue the trial, as “The defendant is totally without what he expected to be expert testimony in his behalf.” (Id. at 28). Defense counsel requested additional time to obtain a substitute expert witness who would examine the Petitioner to “determine whether or not [he] ... meets the criteria of a sex abuser. And whether or not [he] ... possesses] the mental condition that influenee[s] his [... ] perpetration of that kind of offense on a young child.” (Id. at 28). Defense counsel added that although the trial court had concluded that Dr. Gardner’s report did not satisfy the Daubert standard, the Court might reach a different conclusion after hearing the testimony of a different expert witness for the defense. (Id. at 29).

The prosecutor responded that such a scenario would merely put the court in the exact same situation concerning the admissibility of the proposed expert testimony that it now faced since, in the prosecutor’s view, Kentucky law did not permit the admission of such expert testimony regardless of its source. (Id. at 30). The court agreed with the prosecution that to allow testimony of this nature would “open a can of worms” in which any defendant charged with a specific crime, i.e., murder or robbery, would retain an expert witness to testify that he or she did not fit .the profile of a person who murders or robs. {Id. at 30-310).

With these arguments, the court denied the motion of the defense for a continuance. {Id. at 313). The trial court again denied Petitioner Bowen’s renewed pretrial motion to suppress the tape recorded statement taken by Detective Tapp.

c. The Trial Proceedings.

Trial of the case proceeded over several days. Testimony for the prosecution, summarized below, consisted of testimony from the victim, J.S., her mother P.S., and Detective Tapp. Petitioner Bowen’s trial counsel unsuccessfully moved for a directed verdict at the conclusion of the prosecution’s case based on the alleged insufficiency of the witness’s testimony. Petitioner Bowen testified in his own defense, along with his wife, Myrtle, and sons. He additionally presented the testimony of numerous individuals whose children were cared for by Mrs. Bowen in her home for many years without incident and without indication of any child sexual abuse. Despite this testimony, and that of Petitioner Bowen denying all of the allegations, the jury ultimately convicted the Petitioner on both counts of the indictment. Petitioner Bowen then chose to waive jury sentencing. He was instead sentenced by the trial court, based on the recommendation of the prosecution, to concurrent sentences of 5 and 20 years on the sexual abuse and sodomy charges, respectively.

d. The Direct Appeal.

Petitioner Bowen took a direct appeal to the Supreme Court of Kentucky (DN 12, Exh. 12, Memorandum Opinion). Petitioner raised five issues on appeal. He argued that the trial court improperly denied: (1) his motion to suppress the audio taped statement taken by Detective Tapp; (2) him the opportunity to play the same statement to the jury during voir dire and opening statements; (3) his motion for a continuance immediately prior to trial in order to secure a new expert witness; (4) his motion for a directed verdict; and (5) his motion to introduce a photograph showing a table similar to the kitchen table testified to by the victim.

' The Kentucky Supreme Court rejected all of these arguments. A,s to the tape recorded statement, the Court concluded that the statement was properly admitted as it was probative of the crimes charged, despite its lack of a time reference, and its probative value was not outweighed by any undue prejudice. As for the Petitioner’s continuance related argument involving the loss of Dr. Gardner’s expert testimony, the Kentucky Supreme Court concluded that the trial court in fact had held a Daubert hearing given its review of Dr. Gardner’s report and lengthy affidavit outlining his proposed testimony, along with its consideration of the controlling state case law. Citing the Christie decision, the Kentucky Supreme Court found that the record contained sufficient evidence for .the trial court’s Daubert determination, which it held to be properly based on the Tun-gate decision. Given the inadmissibility of this expert testimony, the Kentucky Supreme Court concluded that a continuance of the trial was unnecessary,. since the same type of expert testimony offered by a new expert witness would be no more admissible than Dr. Gardner’s expert testimony. Finally, the Kentucky Supreme Court indicated that, while certain of the trial testimony offered by J:S. did conflict with her prior statements, and was itself internally inconsistent, it could not be said that it was clearly unreasonable for the jury to find Petitioner Bowen guilty of the charged offenses. The Court therefore concluded that a rational trier of fact could have believed, based solely on the testimony of J.S., that the Petitioner committed the charged sexual abuse and sodomy offenses.

II. Trial Testimony.

a. The Prosecution’s Proof.

Trial began on May 27, 2002. The prosecution initially called the victim, J.S., as its first witness. J.S., who was 14 years old at the time of trial, testified that she was sexually molested by Petitioner Bowen. She claimed that Bowen molested her at his home between 1992 and 1995, when she was 4-to-7 years old (T.E. Vol. I, pp. 105-106). J.S. explained that her parents left her at the Bowen home for daycare with the Petitioner’s wife, Myrtle Bowen, who cared for children in her Bullitt County home for many years to make extra money. (T.E. Vol. I, p. 6; Vol. II, pp. 145-154).

When asked how she was molested, J.S. elaborated that on one occasion, while Mrs. Bowen and her helper, Cindy, were out of the home, J.S. was lying alone on the bed in a bedroom for an afternoon nap when Petitioner Bowen entered the room, raised up her shirt and proceeded to masturbate until he ejaculated on her stomach, after which he took J.S. to the bathroom, washed her off, laid her back on the bed and told her not to tell anyone. (T.E. Vol. I, pp. 107-109). J.S. estimated that she was 5 years old when the event occurred and that the bedroom in which it occurred was then used by the Bowens’ two sons. (Id. at 109). Further, Petitioner Bowen, according to J.S., had his own dresser in the bedroom in which he kept Playboy magazines. (Id.).

J.S. continued to testify about a separate incident that occurred when she was six or seven years old. (T.E. Vol. I, p. 110). J.S. explained that on one occasion in the Bowen home she was underneath the kitchen table playing with the family dog when the Petitioner, who was seated at the table wearing only green boxer shorts and a dress shirt, took out his penis and forced J.S.’s mouth down onto it. (Id. at 111). When J.S. began to choke and started to cry, Petitioner Bowen allegedly removed his penis from her mouth and cautioned her not to tell anyone. (Id.). J.S., in fact, did not tell anyone until seven years later on March 27, 2002.(M). She explained that she continued to come to the Bowen home over the ensuing years because she loved Myrtle Bowen and enjoyed being with the other, younger children there. (Id. at 112). Mrs. Bowen babysat for other children, all of whom were younger than J.S. (Id. at 113). J.S. helped with feeding the babies, changing their diapers and watching them. (Id.).

When she became 12 years old, J.S. moved away from the county where the Bowens lived and no longer stayed with them, except for occasional visits during the summer or on school breaks at Christmas. (Id. at 114). Her parents got divorced, and her mother had remarried first. Mrs. Bowen in her own testimony recalled that J.S. had a difficult time adjusting to the divorce and to having a stepfather.

J.S. also testified to a separate incident that occurred during the Christmas break of 2001. She was seated on the couch in the TV room at the Bowen house watching television with Petitioner Bowen, whom she called “Eddie,” when he told J.S. that years earlier a 9-year-old girl had come over to his home and asked him crudely if he wanted to have sex with her. (T.E. Vol. I, p. 115). According to J.S., Bowen did not explain why he was telling her about this event. He then allegedly asked J.S. if she had ever had sex. (Id.). She responded that she had not because she was only 13 years old. (Id.). Petitioner Bowen then supposedly told her that he and his wife had not had sex in eight months. (Id.). It was after these events in Decernber of 2001, that J.S. decided at church in March to tell her best friend what had occurred. (Id. at 116). Several weeks later, she told her mother on March 27, 2002. (Id.).

On cross-examination, J.S. testified that she had stayed at the Bowen home from the time that she was 2 years old, until she was 12. (Id. at 117). J.S. acknowledged that even though the sexual abuse supposedly occurred between the time she was 4 and 7 years old, she continued to come to the Bowen home for babysitting until she was 12. (Id. at 118). She reiterated that the incident in the bedroom occurred in the same bedroom in which Petitioner Bowen slept where his dresser was located. (Id. at 119). She agreed that there were other children in the home on that first occasion, but explained that they were asleep in different rooms of the house at the time. (Id.).

J.S. estimated that the second incident in the kitchen occurred at approximately 3 p.m., immediately prior to the time that the Petitioner would go to work. (Id. at 121). She explained that on that separate occasion all of the children were in another part of the house with Myrtle Bowen while she was playing under the table with the dog. (Id.). J.S. acknowledged that there was no door to the kitchen, which could be seen from the hallway. (Id. at 123). Further, she acknowledged that parents would come to the home to pick up their children at different times, some after school, others after their parents got off work. (Id. at 123). She also admitted that on occasion these parents went beyond the front room of the home when picking up their children. (Id. at 124). Finally, J.S. acknowledged that she helped Myrtle Bowen with the laundry and knew that her husband owned a green pair of shorts, which he would wear around the house. (Id. at 126-27).

J.S. was then confronted with a handwritten letter that she had written Myrtle Bowen in October of 2001. (Id. at 131). In her letter, which J.S. read aloud to the jury, she wrote that she missed Mrs. Bowen and missed being at the Bowen house because Mrs. Bowen was “like a second mom” that she could always rely on. (Id.). J.S. added in her letter to tell Eddie “hello,” along with her grandchildren. (Id. at 132).

J.S. acknowledged that she had spoken with KSP Detective Tapp and social services worker Mary Ellen Murray. (Id. at 133-34). During her 2-hour long meeting, she attempted to tell them what had occurred, but became too emotional to speak, so she wrote out a statement. (Id.). J.S. also wrote out what Petitioner Bowen had allegedly said to her concerning his sex life during her Christmas break visit. She admitted that there were other children in the Bowen home at the time this third incident occurred in 2001. (Id. at 136).

Concerning her written statement to Detective Tapp, J.S. testified on redirect that her written statement did not contain all of the abuse that occurred because she did not begin writing down what had happened until after she became unable to speak. (Id. at 139-140). J.S. confirmed that she told Detective Tapp that Petitioner Bowen asked her several years later, when she was six years old, if she would perform oral sex for him, but she said no, adding that she was stupid when she was younger. (Id. at 140). J.S. continued in her re-direct testimony to verify the events she told the detective and social worker. (T.E. Vol. I, pp. 140-141).

J.S.’s mother, J.P., then testified. (T.E. Vol. II, pp. 5-15). J.P. testified that she took her daughter to Myrtle Bowen’s home five days a week from the age of 2 until she was 12. (Id. at 7-8). As J.P. described matters, her daughter “loved Myrtie to death.” (Id. at 8). She always talked about Myrtle and her two sons, Aaron and Matthew. (Id.). J.P. did not testify to any of the circumstances surrounding the alleged incident.

After J.P. testified, the prosecution recalled J.S. to ask her whether she remembered advising Detective Tapp that Petitioner'Bowen would make her sit on his hand when she tried to sit on the couch in the Bowen home. (T.E. Vol. II, p. 25). J.S. acknowledged that Petitioner would try to squeeze her buttocks when she sat on the couch, but she denied that his fingers ever went into her rectum, as Detective Tapp had written in his report. (Id.). She confirmed that the Petitioner had merely squeezed her buttocks, which according to J.S., he did almost every time that she went to the Bowen home, including the last time she was there in December of 2001, over Christmas break. (Id. at 26). J.S. reiterated on cross-examination that she did not tell Detective Tapp that the Petitioner stuck his fingers into her butt. (Id. at 27).

J.S. disagreed that she had earlier testified she was four years old when the kitchen incident occurred; instead, she testified that she was six or seven. (Id.). Further, J.S. testified, also contrary to her earlier trial testimony, that she was about 12 years old when the Petitioner asked her to fellate him again. (Id. at 28). J.S. repeatedly denied any contradiction with her earlier testimony on this point. (Id.). When defense counsel read Detective Tapp’s statement referring to the Petitioner’s alleged request for fellatio when J.S. was six years old, she testified that the Detective must have misunderstood her, as she was older than six years old. (Id. at 30-31). Instead, she was 12 years old. (Id. at 31). J.S. admitted that while she and Myrtle Bowen did talk about certain “girl things,” such as inappropriate touching,- she never told Mrs. Bowen what her husband had allegedly done to her. (Id. at 34).

Detective Jonathan Tapp then testified. (T.E. Vol. II, p. 42). Detective Tapp testified that on April 2, 2002, he had occasion to respond to an inquiry from the Kentucky Cabinet for Human Resources concerning Petitioner Bowen. (Id. at 43). His immediate supervisor with the KSP detailed Tapp to investigate a complaint sent to the state police by social worker Mary Ellen Murray concerning alleged child sexual abuse. Detective Tapp met with J.S. and her mother, along with social worker Murray, on April 2, at the Cabinet for Families and Children in Shepherds-ville, Kentucky. (Id. at 44).

After the interview with J.S., Detective Tapp and Mary Murray went to the Bowen home where Tapp interviewed Mr. Bowen. (Id. at 44-45). According to the detective, he and the Petitioner walked around the home briefly and then went to Aaron and Matthew’s bedroom where the detective spoke with Petitioner Bowen “for a minute before Bowen suggested that they talk outside in the garage.” (Id. at 45). Outside in the garage is where the detective took an audiotape recorded statement from the Petitioner. (Id. at 46).

Prior to taking the statement, however, the detective asked Petitioner Bowen if he had any underwear that he normally wore. (Id. at 50). According to Tapp, the Petitioner went to the laundry room and pulled out some green boxers shorts which he showed the detective. (Id.). Detective Tapp testified that the green boxer shorts produced by the Petitioner matched the description given by J.S. of the shorts that the Petitioner wore when he allegedly abused her. (Id.). Detective Tapp testified that he advised Petitioner Bowen what the allegations against him were before the two men discussed the situation. (Id. at 51).

Detective Tapp recalled that while in the bedroom the two men discussed Bowen’s masturbation and any adult magazines he might have in the bedroom. (Id. at 51-52). Bowen acknowledged to Detective Tapp that he did have some Playboy magazines in his dresser in the bedroom. (Id. at 52). Detective Tapp conceded that he had no information about any illegal pornography. (Id. at 52-53). Once outside in the garage, the detective advised Petitioner Bowen that he was not under arrest and that the detective intended to take a tape recorded statement. (Id. at 54).

On cross-examination, the detective confirmed that his investigative report indicated that he and Murray had spent approximately two hours at the home of the Petitioner that afternoon. (Id. at 60-61, 66). Further, he acknowledged that all but a few minutes of that 2-hour time period he spent with Petitioner Bowen. (Id. at 67). Detective Tapp testified that he could not recall whether he had ever told Petitioner Bowen during that two hour period that the alleged sexual offenses had occurred 7-to-9 years earlier. (Id. at 69). The detective also admitted that J.S. in her initial statement to him was not sure exactly where inside the Bowen home the fellatio incident occurred. (Id. at 70). Further, he agreed that his report indicated, contrary to her testimony, that J.S. had told him that she was “6 years old” when the Petitioner supposedly had requested that she commit fellatio again. (Id. at 71).

On redirect, Detective Tapp testified that Petitioner Bowen confirmed his statement to J.S. concerning the unnamed 9-year-old local girl who supposedly came over to the Bowen home and told the Petitioner that she would have sex with him if she were older. (Id. at 73). Detective Tapp testified that this information from Petitioner Bowen during Tapp’s visit confirmed what J.S. had earlier related to him about the Petitioner’s statements to her during December of 2001. (Id. at 73). On re-cross-examination, Detective Tapp conceded that the Bowen home was a small, middle-class home with a kitchen that was partially visible from the front door. (Id. at 76-77).

This final testimony concluded the case for the prosecution. Petitioner Bowen’s counsel then moved the court for a directed verdict on the sodomy charge based on the substantial inconsistencies in J.S.’s testimony as to what had occurred when and where. (Id. at 77). The defense also moved for a directed verdict on the sexual abuse charge arguing that sufficient evidence had not been offered by the prosecution to support the charge. (Id. at 78). The prosecutor responded that the testimony of J.S. concerning what allegedly occurred at the kitchen table in the home certainly constituted sodomy. (Id.). As for the sexual abuse charge, the prosecutor argued that the testimony concerning Petitioner Bowen allegedly forcing the girl to sit on his hand while he fondled her buttocks was sufficient testimony to go forward on this charge. (Id.). The trial court immediately overruled the motion for a directed verdict on the sodomy count. (Id. at 79). As for the sexual abuse charge, the trial court reminded counsel of the testimony from the victim that the Petitioner had masturbated on her stomach. (Id.). T he trial court accordingly concluded that at a minimum, sufficient circumstantial evidence had been presented such that the jury could believe that the Petitioner did commit sexual abuse in the first degree. Accordingly, the Court overruled the motion for a directed verdict on this count as well. (Id. at 79).

b. Petitioner Bowen’s Proof.

Petitioner Bowen then presented his case to the jury. He began with a series of nearly 20 witnesses, all of whom were either parents with children that Petitioner’s wife eared for in the Bowen home, or were adults who had observed J.S. during the relevant time period. Each parent witness testified that Mrs. Bowen had been watching his or her child or children for a number of years at her home. (Id. at 81). Each parent testified that his or her child was happy staying there and had never mentioned any abuse going on in the Bowen residence. Certain of the parents also testified that they had seen J.S. at the Bowen home on occasion, and that she had never mentioned any problems to them when they stopped in to pick up their children.

Many of these same parent witnesses additionally testified that they had heard the audiotape of Petitioner Bowen’s statement to Detective Tapp, and that nothing they heard on the tape would change their mind about the situation in the Bowen home. These same witnesses testified that they had seen Petitioner Bowen in the home on various occasions over the years and had not seen him walking around in his boxer shorts. In fact, several witnesses, two teachers and a bus driver, testified that they were trained to recognize child abuse and had not seen anything that indicated that any children in the Bowen home were being abused.

One defense witness, a schoolteacher, testified that J.S. had attended his physical education class while she was in the fourth grade and appeared to be a well adjusted child who never mentioned anything about being abused by Petitioner Bowen at his home. (Id. at 148). Another witness, also one of J.S.’s teachers, testified that she had taught J.S. in music class in the fourth grade and she had never indicated any abuse at the Bowens’ home. The same witness testified that her own children were cared for in the Bowen home and were very happy there. (T.E.' Vol. II, pp. 152-53). None of her children reported any mistreatment. (Id.).

Petitioner Bowen’s son, Robert Aaron Bowen, testified that he lived in the family home until he was 17. (Id. at 157-58). He testified that none of his own four children had ever reported any abuse or mistreatment by his father. (Id. at 158). Further, while growing up at home, Aaron recalled that there were always at least 5 other children being cared for in the home, which had only two bedrooms, his parents’ bedroom and the bedroom that he shared with his older brother. Aaron testified that he knew J.S., whose mother would drop her off at the home in the mornings and pick her up between 4 and 5 in the afternoons. (Id. at 160). According to Aaron, given his father’s work schedule, he was rarely at home at 3 p.m., since he did not ordinarily get back from his job as a paint mixer until 3:45 in the afternoon. (Id. at 161). Aaron denied that J.S. ever indicated to him that she was being abused by anyone. (Id. at 162).

He testified that his father never slept in the boys’ bedroom, which he lived in until 1996, the final three years by himself after his older brother Matthew left to join the Navy in 1993. (Id. at 162-63). During that time, there were never any Playboy magazines in the dressers in the bedroom. Aaron testified that not until 2001, were there any Playboy magazines in the bedroom dresser. (Id. at 164). As for why J.S. might want to accuse his father, Aaron testified that she was an “attention-getter.” (Id. at 171). Plus, her parents had gotten divorced and J.S. hated her mother’s new spouse. (Id. at 171-172).

Another defense witness, one of the children that Mrs. Bowen formerly watched during the time that J.S. was in the home, next testified that he had never observed Petitioner Bowen make any inappropriate sexual remarks or gestures while he was there years earlier. (T.E. Vol. IV, pp. 7-8). The same witness also never saw Petitioner Bowen inappropriately dressed inside the home. (Id. at 8).

Petitioner Bowen’s oldest son, Matthew, also testified. Matthew testified that he and his brother, Aaron, shared the same bedroom until he left to join the Navy in 1993. (T.E. Vol. IV, p. 29). His brother then lived in their bedroom alone until he married in 1996, and moved out. (Id. at 30). Matthew testified that during this period his father never used the boys’ bedroom as his own room, and there were never any Playboy magazines in either dresser during the time that the brothers stayed in the bedroom. (Id. at 30). According to Matthew, not until 2001, were there even any Playboy magazines in the home. (Id. at 30).

Matthew confirmed that during the time he was growing up there were always children in the home. There was no way in the 1,000 sq. ft. home to get away from the kids, who pretty much had the run of the house. (Id. at 31). Also, for most of the time he lived in the home, his father worked second shift at the paint factory and ordinarily left the house around 2:45 p.m. (Id. at 33). Matthew testified that while he lived there, J.S. never said anything about his father doing anything inappropriate to her. (Id. at 35). In fact, none of the other children, according to Matthew, ever indicated that his father had done anything inappropriate with them. (Id.). Other than J.S.’s allegations, Matthew had never heard anyone say such things about his father, who did not go around the house wearing boxer shorts. (Id. at 35-36).

Petitioner Bowen’s ex-daughter-in-law testified next for the defense. She indicated that following her marriage to Robert Aaron in 1996, the couple lived in the Bowen home, where she never saw anything that indicated to her that any of the children being cared for was being abused. (Id. at 48). Further, she also observed J.S. at the time. J.S. seemed to her like a happy child, who never mentioned anything inappropriate happening to her involving the Petitioner. (Id. at 48). She confirmed that she never saw Petitioner Bowen wearing only his boxer shorts around the house. (Id. at 49).

Petitioner Bowen then testified on his own behalf. (T.E. Vol. IV, p. 49). Bowen testified that his two sons shared the bedroom in the Bowen home until the younger son left in 1996, three years after his older brother left the home to join the Navy. (Id. at 50-52). The house itself, explained Bowen, was a 1,000 square foot home. After both his sons left, Bowen and his wife moved out one of the beds and Petitioner Bowen moved into the bedroom in late 1996.

Bowen explained that Detective Tapp arrived at his home with the social worker that afternoon around 1:30 when Bowen was preparing to go to work. Bowen worked second shift as a paint mixer at the Olympic Stain plant, where he had worked for 18 years. (Id. at 53). Bowen usually prepared for work around 1:30, leaving at 2:45 p.m. (Id. at 54). Bowen recalled that he-was shaving when the detective arrived and was only partially dressed. After a brief introduction in the kitchen area, the two men went into the bedroom where the alleged incident supposedly occurred. According to Bowen, the detective never explained to him what misconduct he had been accused of or when such misconduct occurred. Bowen simply assumed that the detective must be inquiring about recent events, rather than accusations of misconduct that allegedly occurred 7 to 9 years earlier in 1992-1995.

Bowen recalled that Detective Tapp only advised him that J.S. had made some accusations against him. (Id. at 72). The detective did not tell him what those accusations were. (Id.). Instead, after being introduced, the detective immediately asked Bowen to show the detective his shorts, so the two men went to the bedroom so that Bowen could retrieve them. (Id. at 73). Bowen showed the detective a pair of jockey style underwear, which is the type of underwear that Bowen ordinarily wears. (Id. at 74). The detective then asked Bowen if he had any green shorts. Bowen responded that he had a green pair of swimming trunks and showed them to the detective. (Id. at 75).

Bowen recalled that as he sat on the bed in the bedroom Detective Tapp questioned him for approximately an hour. (Id. at 76). According to Bowen, the very first thing the detective .asked was if he could remember anything inappropriate happening between him and J.S. Bowen responded that there was nothing that he could remember. (Id. at 76). Bowen reiterated that the detective never told him exactly what the allegations were that J.S. made against him. (Id. at 77). The detective did ask if there was any possibility that J.S. had seen Bowen inappropriately dressed. (Id. at 77). The detective also asked if he had ever masturbated in the bedroom, to which Bowen responded that he was a man and had masturbated in the bedroom. (Id. at 78). Tapp also asked Bowen if he had any Playboy magazines he kept in the bedroom. Bowen responded that he did have such magazines in the bedroom, but not until 2001. (Id. at 78).

Bowen maintains that throughout this extended interview he repeatedly denied that any type of sexual misconduct had occurred between him and J.S. The detective also asked Bowen if it was possible that J.S. had ever accidentally seen something inappropriate in the bedroom. (Id. at 79). By that time, Bowen simply assumed that the detective was talking about the last time that J.S. had visited the home over the Christmas 2001 break. He speculated that perhaps she walked by the bedroom and opened the door unexpectedly. (Id. at 80). Detective Tapp also asked Bowen if it was possible that, while he was asleep in the bedroom, J.S. had come into the room and done something inappropriate to him. (Id. at 81-82). That is why, according to Bowen, his answer during the tape recorded interview about whether his penis had ever been in the mouth of J.S. was initially, “I wouldn’t think so” before he immediately added, “No, not at all.” (Id. at 81).

Bowen testified that during the entire interview Detective Tapp never informed him of the time frame during which the alleged misconduct involving J.S. occurred. (Id. at 83). He simply assumed that all the detective’s questions related to J.S.’s visit at 2001 Christmas break, since there were never any Playboy magazines in the bedroom from 1992 until 1996, when his sons used the bedroom. (Id. at 83). As for any inappropriate touching, Petitioner Bowen acknowledged in his testimony that he and Detective Tapp talked about Bowen wrestling with the children and that Bowen had playfully wrestled with J.S. as he did the other children. (Id. at 88-89). He again adamantly denied that there was anything sexual about their play. (Id. at 89). Bowen testified that, in fact, children were always in the house in every room. (Id. at 90). According to him, they had the run of the house. (Id.).

At trial, Bowen adamantly denied that he had ever put his penis into the mouth of J.S., or that he had ever ejaculated onto her. (Id. at 57). He also denied that he had ever put his fingers in any inappropriate place on her body intentionally to sexually gratify himself or had ever exposed himself to her intentionally. (Id. at 57-58).

Bowen explained his relationship with J.S. to the jury. According to him, J.S. was a “wonderful young girl” who was “like one of my own children and we treated her like one of our own children.” (Id. at 58). Bowen recalled that J.S. was 2 years old when she arrived in their home for childcare with the other children that his wife Myrtle watched. (Id.).

When asked about the 1992-to-1995 time frame involved in J.S.’s allegations, Bowen testified that he was working in Louisville at Olympic Stain making the paste using in paints. (Id. at 61). In addition to that job, Bowen also helped hang tobacco. (Id. at 62). In the mornings, Bowen made extra money working at a local cemetery, Highland Memorial Gardens. (Id. at 63). After working at the cemetery in the early morning, he would come home, sleep for five hours, then prepare to go to work on the second shift at Olympic Stain, which began at 3:45 p.m. (Id. at 64). Bowen testified that he usually ate lunch between 11 a.m. and noon, and never sat down to eat at 3 p.m. in the afternoon because by that time he had already left his home to drive to his job in Louisville 20 miles away. (Id. at 65-66). Although Bowen did occasionally work the day shift at Olympic Stain, that shift started at 7 a.m. and ended at 3:45 p.m., so that Bowen was rarely ever home before 4 in the afternoon when he worked first shift. (Id. at 66). He acknowledged that sometimes when he worked second shift, J.S. was there in the mornings before he went to work. In the afternoons, she would have only been there for five minutes or so before her mother picked her up. (Id. at 68).

Petitioner Bowen then turned to his conversation with J.S. during the 2001 Christmas break about the 9-year-old girl who allegedly asked Bowen to have sex with her. (Id. at 91). Bowen recalled that the neighborhood girl came over to his house in 1985 one Saturday morning when he was watching TV with his youngest son. (Id. at 92). Mrs. Bowen had gone to the grocery when she arrived. She asked where Mrs. Bowen was and then asked if she could come in and watch TV. (Id. at 93). As she sat on the couch watching TV, the 9-year-old allegedly turned to Bowen and blurted out, “If I was older I would f* * * you.” (Id. at 91). Bowen testified that he responded with, “What?” After she repeated the same statement, he made her-immediately leave. (Id.). Bowen testified that he told his wife what had happened, and she subsequently told the little girl not to come back to the house while her husband was there. (Id. at 94-95). Bowen never saw her again.

Bowen recalled that he told J.S. about this incident in the summer of 2001, when she stopped by the house with a friend to see his wife. (Id. at 95). He was sitting at the kitchen table when J.S., who was then 12 or 13, supposedly told him that she had a boyfriend with whom she had had sex. (Id. at 97). Bowen then in the course of advising J.S. not have sex before marriage, related the story about the 9-year-old girl. (Id. at 97). He also acknowledged telling J.S. during the same conversation that he and his wife had not had relations for 8 months. (Id.). Bowen explained that he told J.S. about this abstinence because he wanted to show her that you can have meaningful relationship with your partner that is not based on sex. (Id. at 98). To Bowen, he simply was attempting to talk to J.S. as a father would talk to his own son or daughter. (Id. at 98).

On cross-examination, the prosecution extensively questioned Bowen about his conversation with Detective Tapp that afternoon in the bedroom. When asked if he began to cry when the detective questioned him in the bedroom about J.S.’s accusations, Bowen responded that he could not remember. (Id. at 119). Pressed further, he acknowledged that he may have sniffled or cried. (Id. at 119). Bowen denied that during this encounter the detective ever told him that J.S. had accused him of masturbating on her in the same bedroom. (Id. at 120). Bowen did admit, however, that he told Detective Tapp that he occasionally did masturbate in the bedroom. (Id. at 129). He did not start using the boys’ bedroom, however, until the latter part of 1996. (Id. at 130). Before that time, Bowen denied that he ever masturbated in the boys’ bedroom. (Id. at 130),

Bowen reiterated that during the interview with the detective, he believed that the detective was referring to events that occurred in December of 2001. (Id. at 131). Bowen insisted that had he known of the time frame of the allegations, his answer on the tape concerning whether J.S.’s mouth had ever touched his penis would have been, “absolutely not,” rather than “I wouldn’t think so.” (Id. at 133). Bowen acknowledged that for most of the years that J.S. was cared for in his home, she was the oldest of the children. (Id. at 134). As for his conversation with J.S. concerning sex, Bowen testified that he could not recall if he told his wife about the conversation. (Id. at 139-40). But he admitted that he never called J.S.’s mother to advise her about such conversation. (Id. at 141).

The prosecutor then questioned Bowen concerning the 1985 incident involving the 9-year-old girl who supposedly came to Bowen’s home and said to him, “If I was a little older I would let you f* * * me.” (Id. at 144). Bowen denied that he used the same language as the young girl when he discussed the incident with J.S. (Id. at 145). When asked how J.S. would have known to tell the social worker and Detective Tapp the exact words that the 9-year-old had said, if Bowen had not used the same language, Bowen responded that he did not know how J.S. would have known what the girl said, and that she might have used her own words. (Id. at 146). Bowen acknowledged that he told his wife at the time about the incident, but he did not know if she ever contacted the little girl’s parents. (Id. at 147-148). Bowen then reiterated that during the entire time that Detective Tapp was in his home, the detective never told him the exact nature of the allegations J.S. had made about him. (Id. at 150-51).

After Bowen answered questions about the audiotaped statement, which the prosecutor played for the jury, he acknowledged that there were times when numerous children would be in the home and he would be the only adult there. (Id. at 167). He also acknowledged that on most of those occasions, J.S. was the oldest child present. (Id.). Finally, he admitted that his wife did regularly leave to take her helper, Cindy, home. (Id. 167-68).

On redirect, Bowen explained that because Cindy lived on the same street, his wife was never gone for very long, perhaps ten minutes at most. (T.E. Vol. V, p. 170). Further, Bowen testified that in the 28 years he and his wife had lived in the home, no one else had ever made such allegations against him. (Id. at 171). Bowen explained his audiotaped statement as being the result of Detective Tapp’s repeated suggestions prior to the taping of what might have happened, such as him being in the bedroom masturbating without seeing J.S. there. (Id. at 173). Bowen explained that before Detective Tapp made the tape, Bowen repeatedly denied that he had ever touched J.S. inappropriately or done anything inappropriate to her. (Id. at