Roach v. Com.

• Decision Date: 20 May 2010
• Docket Number: No. 2009-SC-000058-MR.,2009-SC-000058-MR.
• Citation: 313 S.W.3d 101
• Parties: Caryn Renee ROACH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

313 S.W.3d 101

Caryn Renee ROACH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2009-SC-000058-MR.

Supreme Court of Kentucky.

May 20, 2010.

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Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Micah Brandon Roberts, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

I. INTRODUCTION.

A circuit court jury convicted Caryn Renee Roach of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and being a second-degree persistent felony offender (PFO 2). In accordance with the jury's recommendation, the trial court sentenced Roach to twenty years' imprisonment and entered judgment accordingly. Roach now appeals this judgment as a matter of right.¹

Roach contends that the trial court erred by (1) failing to direct a verdict of acquittal on the adult exploitation charge because the evidence at trial showed that the alleged victim had no mental or physical impairment requiring the alleged victim to need assistance with managing her affairs, (2) allowing introduction of the testimony of the lead detective opining that several checks written on the alleged victim's account likely had not been signed by the alleged victim, and (3) allowing witnesses to testify to statements made by the alleged victim before her death. Roach further urges reversal based upon alleged palpable error arising in the trial proceeding as a result of (1) the lead detective's vouching for other witnesses and bolstering his own investigation, (2) the prosecutor improperly citing law in his closing argument, and (3) the cumulative effect of all alleged errors.

We find no reversible error and affirm the judgment of the trial court.

II. FACTS.

This case arose when the family of 90-year-old Eba Wilson² suspected that several checks written on her account had been forged. Although no one disputed that Eba remained mentally alert until her death, Eba's eyesight had deteriorated to the point that she often had family members or her caretaker, Roach, fill in her checks, which she then signed.

In addition to the loss of eyesight, Eba also suffered from significant hearing loss, knee problems, and diabetes. Despite her physical frailties and advanced age, Eba strove to maintain her independence as much as possible. She exercised control over her finances by having her monthly checking account statements read to her by her son, Wendell Wilson, or Wendell's wife, Jean, and by remaining aware of her checkbook balance and her expenditures. Wendell remembered Eba as being frugal with her money and closely tracking her expenses because she was aware that her financial resources were limited, and she intended to make these limited resources last.

Several months before her death, Eba and Wendell both suffered health setbacks that forced a deviation from their routine review of Eba's checking account statements, which customarily happened soon after each statement arrived in the mail. Wendell was hospitalized for about a month and was unable to review Eba's checking account statement for the preceding month with her. Later, he testified at trial to never having seen the statement missed because of his hospitalization.

A month later, Eba passed out at home; and Roach, who had been working for several months as Eba's live-in caretaker, called an ambulance. Eba was then taken to a hospital where she remained for two or three days before being released to a nursing home. Because Eba never returned home after being taken to the hospital, Roach's employment as Eba's caretaker ceased.

After Eba was placed in the nursing home, her checking account statements were redirected to Wendell's home address. Wendell had obtained power of attorney to handle financial matters for Eba and had also been designated as a signatory on her checking account. Wendell became alarmed when he noticed several large checks totaling $6,000 written out to Roach and to Roach's daughter, Chasity Goatee.

After Wendell went to his mother's bank to sign affidavits of forgery on several suspicious checks,³ the police and the Cabinet for Health and Family Services (CHFS) Adult Protective Unit commenced investigations, including separate interviews with Wendell, Jean, Eba, Roach, and Goatee. Ultimately, the authorities charged Roach with adult exploitation and three counts of second-degree criminal possession of a forged instrument.⁴

Lead detective Robert Duvall and Lisa Loftus of the CHFS Adult Protective Unit both testified at trial about their investigations. Both noted that Roach denied writing the allegedly forged checks and indicated that Roach asserted that Eba had loaned her money through some of these checks.

The jury found Roach guilty of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and PFO 2. It recommended a total sentence of twenty years' imprisonment.⁵ The trial court entered judgment in accordance with the jury's recommendations and also ordered Roach to make restitution for the forged checks to the victim's family.

III. ANALYSIS.

A. Trial Court Properly Denied Directed Verdict Motion.

Roach contends that the trial court erred in denying her motion for a directed verdict on the adult exploitation charge because of an alleged lack of evidence that Eba was unable to manage her own affairs as required to invoke the protection of Kentucky Revised Statutes (KRS) Chapter 209, the Kentucky Adult Protection Act.⁶ Roach points to a lack of evidence that Eba suffered any mental dysfunction and argues that Eba's physical infirmities did not rise to the level of physical dysfunction to render her unable to manage her own affairs, pointing out that Eba was aware of her financial situation. We are unaware of any other Kentucky appellate opinions that directly construe the requirements for a conviction of adult exploitation under KRS 209.990(5), so this appears to be a matter of first impression.⁷

The controlling statutes allow for finding adult exploitation if the adult victim suffers from either mental or physical limitations preventing that adult from managing her own affairs.⁸ So, despite the undisputed fact that Eba suffered no mental impairment, the evidence at trial was sufficient to show that Eba's physical limitations forced her to seek assistance in managing her affairs. For example, ample testimony proved that Eba's limited vision required her to call on others to fill in checks, which she signed herself. And her customary awareness of her checking account balance stemmed largely from Wendell's or Jean's oral review of the bank statements with Eba. In other words, Eba was able to keep track of her finances but only with assistance. As the Commonwealth contends, the fact that she needed a live-in caretaker to help her with everyday living activities is further evidence that despite her mental acuity, Eba required assistance to manage her affairs.⁹

Given our well-known standard for reviewing rulings on motions for directed verdict, articulated in Commonwealth v. Benham,¹⁰ we conclude that the trial court did not err in denying Roach's directed verdict motion.

B. Any Error in Admitting Detective's Testimony Concerning Differences in Signatures on Checks was Harmless.

Roach contends that the trial court erroneously admitted opinion testimony from lead detective Robert Duvall concerning whether the signatures on certain checks were likely Eba's. We conclude that to the extent that the trial court erred in admitting Duvall's testimony concerning his examination of signatures on the checks, the error was harmless.

Wendell was permitted to offer his opinion that the signatures on several checks did not appear to be Eba's. Roach does not attack the admissibility of Wendell's opinion testimony on appeal despite having challenged it at trial. As a result, the admissibility of Wendell's opinion testimony is not before us, so we make no specific determination about it. We do note in passing that Kentucky caselaw has previously recognized the propriety of admitting such lay witness testimony when the lay witness is very familiar with the signatory's handwriting, and the testimony would be helpful to the jury.¹¹

Perhaps the case at hand presented more than the usual evidentiary challenges in judging the authenticity of signatures because of Eba's impaired vision and the absence of any official exemplar of her signature, such as a current driver's license. Eba's signature varied on different documents, and she depended upon the handwriting of others to complete all but the signature on her checks. For example, Wendell admitted that a signature on an unchallenged check to a doctor did not really look like his mother's signature and also admitted that his mother's signature changed somewhat from check to check. Jean testified that the handwriting on an unchallenged check written to a hairdresser looked like her own handwriting, although from our review of her testimony, it is unclear whether Jean meant the handwriting on other portions of the check or the actual signature portion. Given Jean's other testimony that she sometimes filled in other portions of the check for Eba, perhaps Jean meant that other portions of the check looked to be in Jean's handwriting without actually meaning to suggest that the signature looked like Jean's handwriting.

We recognize that Detective Duvall's opinion testimony could appear to the jury to be potentially more reliable testimony that might tend to buttress the testimony of Eba's family members, who conceivably might stand to inherit assets and, thus, might benefit financially from Roach's conviction. But having reviewed Detective Duvall's testimony in detail, we find no reversible error in its...