Kurtz v. Com., No. 2004-SC-0650-MR.

• Decision Date: 22 September 2005
• Docket Number: No. 2004-SC-0650-MR.
• Citation: 172 S.W.3d 409
• Parties: Randy KURTZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

172 S.W.3d 409

Randy KURTZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-0650-MR.

Supreme Court of Kentucky.

September 22, 2005.

Randall T. Bentley, Smiths Grove, KY, for Appellant.

Gregory D. Stumbo, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.

Opinion of the Court by Justice GRAVES.

A jury of the Barren Circuit Court convicted Appellant, Randy Kurtz, of first-degree rape, two counts of first-degree sodomy, three counts of first-degree sexual abuse, and attempted first-degree sodomy in connection with the molestation of his girlfriend's children. For these crimes, Appellant was sentenced to thirty years imprisonment, plus three years conditional discharge as required by KRS 532.043. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we must vacate Appellant's convictions and remand for a new trial.

The evidence presented at trial tended to show that Appellant's girlfriend and her children, L.S., F.T. (also known as F.M.), J.M., and D.M., were living with Appellant from 1996 until November 2002, when allegations of sexual abuse surfaced at the elementary school attended by the three youngest children. The oldest child, L.S., a high school student at the time, stated that she had never been subjected to abuse and was not aware of her siblings being abused. The three youngest children testified to various acts of sexual abuse that had been perpetrated by Appellant. The children's therapist testified regarding the general characteristics and habits of child sex abuse perpetrators, stating that interfamilial perpetrators tend to target victims who live in the home and that it is not uncommon for some children within a familial unit to be abused while others are not. The therapist also testified regarding how children store memories, stating that children tend not to remember dates, but use association to store memories. Finally, the therapist testified regarding her treatment of the children, giving clinical histories for the children and more detailed explanations regarding abuse which was disclosed by the children during therapy. Other witnesses also testified for the Commonwealth, but their testimony need not be recounted herein for the purposes of this appeal.

Appellant presented several witnesses on his behalf. These witnesses testified that he had a normal and loving relationship with both the children and their mother, that he had good character and a good reputation in the community, and that he participated in social activities with his girlfriend and the children. The witnesses also testified that he built several things around the house, including an above ground pool, for the children's use. Further testimony was given by Appellant's ex-wife, who stated that Appellant had a loving and appropriate relationship with their two daughters, and that he had a normal sexual relationship with her while they were married.

The jury returned verdicts of guilty on nearly all counts submitted to it. Appellant asserts several assignments of error upon which he requests relief. We address each assignment of error in turn:

I. Finding of Compelling Need Pursuant to KRS 421.350(3)

KRS 421.350(3) states in pertinent part:

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding.

KRS 421.350(5) defines "compelling need" as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." Appellant contends the trial court erred when it allowed the children to testify by video deposition (which was later played to the jury at trial) pursuant to a finding of compelling need under this statute. A trial court's finding of compelling need pursuant to KRS 421.350 is reviewed for abuse of discretion. Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky.1998).

In this case, the trial court considered the testimony of Julie Griffey, the children's mental health counselor, and from that testimony determined that the children's ages, nine, eleven, and twelve, their history, their course of treatment, and the opinions of Julie Griffey regarding the children's well-being and their ability to testify supported a finding of compelling need. Appellant argues that the sole testimony of Julie Griffey is inadequate to support such a finding and that the trial court erred by failing to find a compelling need for each individual child. We disagree.

Appellant did not (and does not now) object to the admissibility of the various opinions expressed by Ms. Griffey during her testimony. Accordingly, we must presume her statements to be admissible for the limited purpose of determining this issue. Commonwealth v. Maricle, 15 S.W.3d 376, 380 (Ky.2000) ("[T]his Court is limited to the review of those issues that were raised and ruled on by the trial court."). When Ms. Griffey's testimony is considered in its entirety, we find the trial court did not abuse its discretion when it found the content of the testimony to be sufficient to support a finding of compelling need for each child.

II. Proffer of Expert Testimony Pursuant to KRE 702 Appellant next claims the trial court abused its discretion when it permitted Ms. Griffey to testify regarding how children store and recall memories. Additionally, Appellant claims error by the trial court in allowing the expert to testify as to her qualifications in open court, rather than conducting a review of her qualifications outside the presence of the jury.

Initially, we find the issue of whether it was error to allow the expert to be qualified in open court to be unpreserved because Appellant's counsel did not request the hearing to be held outside the presence of the jury. See Maricle, supra. Nonetheless, KRE 104(c) states that hearings on preliminary matters, such as the qualification of a witness, shall be conducted outside the jury's presence when the "interests of justice require." After careful review of the circumstances in this case, we find the interests of justice did not require the trial court to order, sua sponte, Ms. Griffey's qualification to be made outside the presence of the jury.

Next, Appellant alleges the trial court abused its discretion when it ruled that Julie Griffey was qualified to testify regarding how children store and recall memories. Ms. Griffey testified that she had a master's degree in Marriage and Family Therapy, was a licensed marriage and family therapist in the Commonwealth of Kentucky, was a member of the American Association of Marriage and Family Therapists and has twenty-seven years experience as a family therapist. She further testified that she specialized in counseling victims of child sexual abuse and was required by the Commonwealth of Kentucky to attend continuing education classes each year to maintain this specialty. She stated that knowledge regarding child memory was obtained and accumulated through education, training, and experience during her twenty-seven year career. She further testified that the topic was covered each year during her continuing education classes.

Appellant alleges that such qualifications were not sufficient to establish that Ms. Griffey's testimony was reliable in the above referenced subject area pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky.1995), overruled on other grounds, Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999). In Mitchell, supra, at 101, this Court adopted the standard of review set forth in Daubert, supra. Daubert, supra, held that expert testimony must be both relevant and reliable in order to be admissible pursuant to KRE 702. Id. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480.

The reliability of proffered expert testimony is a preliminary question of fact reserved for the trial court and accordingly, a trial court's reliability ruling in this area is reviewed for clear error. Miller v. Eldridge, 146 S.W.3d 909, 916 (Ky.2004). Appellant argues that Ms. Griffey's testimony was inherently unreliable because none of the Daubert factors (whether the theory...