Onwan v. Com., 86-CA-688-MR
| Decision Date | 16 January 1987 |
| Docket Number | No. 86-CA-688-MR,86-CA-688-MR |
| Parties | Tanakorn V. ONWAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Russell J. Baldani and Jennifer Fletcher, Fayette County Legal Aid, Inc., Lexington, for appellant.
David L. Armstrong, Atty. Gen., C. Lloyd Vest II, Asst. Atty. Gen., Frankfort, for appellee.
Before COMBS, GUDGEL and McDONALD, JJ.
This is an appeal from the conviction of appellant in Fayette Circuit Court of three counts of first-degree sexual abuse, and of being a first-degree persistent felony offender.
Appellant first assigns as error that the trial court substantially prejudiced his case by allowing a gynecologist to testify as to her conclusions about what caused abrasions and tears within the victim's hymen and vaginal area following her observation of the victim through an instrument known as a colposcope. A colposcope is nothing more than a device that allows for magnification of an observed field anywhere from two to thirty times its normal size. The colposcope is not inserted into the patient. It rests on a tripod on wheels and remains approximately twelve inches from the patient while the doctor looks through it.
Appellant's objection did not go to the gynecologist testifying as to what she observed of the victim while using the colposcope, but to her testifying as to her conclusion as to the cause of the damage to victim's hymen and vaginal area when such conclusion was arrived at with the assistance of the colposcope. Appellant cites Frye v. United States, 293 F. 1013 (D.C.Cir., 1923), which states the general rule which justifies admission of expert testimony based upon "novel concepts." The novel concept from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs before evidence derived from its use can be admitted.
This court differs with appellant, and believes that colposcopic visualization need not pass the Frye test. As described above, the instrument is little more than a magnifying glass with a fancy name; hardly a "novel concept." The court notes that appellant conceded he has no objection to the admission of the gynecologist's colposcopic-aided testimony about what she observed, but does object to such testimony going to her conclusion of the cause of the vaginal trauma. Since appellant had no objection to...
To continue reading
Request your trial
-
People v. Pitts
... ... (1987) 191 Cal.App.3d 682, 686, 236 Cal.Rptr ... Page 904 ... 623; accord, Onwan v. Commonwealth (Ky.1987) 728 S.W.2d 536.) ... [223 Cal.App.3d 866] Relying on ... ...
-
State v. Noltie
...Practice § 125, at 365 (2d ed. 1982).31 State v. Noltie, 57 Wash.App. 21, 29-30, 786 P.2d 332 (1990) (citing Onwan v. Commonwealth, 728 S.W.2d 536, 537 (Ky.Ct.App.1987)).32 People v. Pitts, 223 Cal.App.3d 606, 273 Cal.Rptr. 757 (1990).33 People v. Luna, 204 Cal.App.3d 726, 250 Cal.Rptr. 878......
-
Honea v. Prior
...field of child sexual abuse where the expert offered no opinion as to whether the children involved had been abused); Onwan v. Commonwealth, 728 S.W.2d 536 (Ky.App.1987) (wherein the court held a social worker qualified either as an expert or lay witness to give her opinion regarding whethe......
-
State v. Young
...See Ivy v. State, 522 So.2d 740, 743-44 (Miss.1988), Johnson v. State, 186 Ga.App. 77, 366 S.E.2d 409 (1988), and Onwan v. Commonwealth, 728 S.W.2d 536, 537 (Ky.App.1987).14 ER 702 provides:"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand......