W.D.B. v. Com., 2006-SC-000937-DG.

• Decision Date: 21 November 2007
• Docket Number: No. 2006-SC-000937-DG.,2006-SC-000937-DG.
• Citation: 246 S.W.3d 448
• Parties: W.D.B. (a Child Under Eighteen), Appellant. v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

246 S.W.3d 448

W.D.B. (a Child Under Eighteen), Appellant. v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000937-DG.

Supreme Court of Kentucky.

November 21, 2007.

Timothy G. Arnold, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Perry T. Ryan, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice MINTON.

Primarily at issue in this case is whether the common law presumption of youthful incapacity for criminal activity, the so-called infancy defense, survived enactment of the Kentucky Unified Juvenile Code, Kentucky Revised Statutes (KRS) Chapters 600 to 645. Because our juvenile code is comprehensive in scope and rehabilitative in purpose, we conclude that its enactment extinguished the infancy defense in proceedings under the juvenile code. And we affirm the Court of Appeals on this issue.

In addition to the applicability of the infancy defense, W.D.B. presents three additional issues for our review. They are: (1) whether the trial court erred in finding — despite uncontradicted expert testimony to the contrary — that W.D.B. had the capacity to commit the offense of first-degree sexual abuse; (2) whether the trial court erred in concluding — based solely on the uncorroborated confession of W.D.B. — that W.D.B. touched the victim; and (3) whether the trial court erred in declining to hold a Daubert¹ hearing to determine the reliability of the methods used by the Commonwealth to evaluate W.D.B. for treatment as a sexual offender. We affirm on these three issues because we agree with the Court of Appeals that the trial court did not err.

I. FACTS AND PROCEDURAL HISTORY.

The juvenile session of the district court determined after an adjudication hearing that W.D.B. had committed the offense of first-degree sexual abuse, an act that if committed by an adult would be a felony. At the time W.D.B. committed the act against the then three-year-old victim, W.D.B. was twelve years old. Specifically, W.D.B. admitted that he was playing at a neighbor's pool with another boy, who was eight years old, and the three-year-old victim. W.D.B. went behind a shed with the two little boys and told the three-year-old to pull his shorts down, which the little boy did. When the three-year-old pulled his shorts down, W.D.B. touched the boy's penis.

In making its determination, the district court held as a matter of law that the common law presumption that a child is without criminal capacity was not applicable in proceedings under the juvenile code. As a result of the adjudication, the district court committed W.D.B. to the Department of Juvenile Justice as a juvenile sexual offender under KRS 635.510.

On appeal to the circuit court, the circuit court affirmed the decision of the district court on all issues as described in the introduction of this opinion. The Court of Appeals granted discretionary review and, likewise, affirmed on all issues. We granted discretionary review.

II. RESOLUTION AND DISCUSSION OF THE ISSUES.

A. The Enactment of the Kentucky Unified Juvenile Code Extinguished the Common Law Presumption that a Child is Without Criminal Capacity.

Since the enactment of the Kentucky Unified Juvenile Code, the common law presumption that a child lacks criminal capacity is no longer necessary for two reasons. First, a delinquency adjudication in juvenile court is not a criminal conviction. Second, allowing the presumption would frustrate the clinical and rehabilitative purposes of the juvenile code. The resolution of the common law presumption issue is one of statutory interpretation and application. So it is purely a question of law and subject to de novo review by this Court.²

The presumption of youthful incapacity for crime arose in Kentucky law as early as 1877.³ The presumption holds that "[t]he arbitrary age below which a child is incapable of committing crime is seven. Between the ages of seven and fourteen, a presumption of incapacity lies, which, however, may be overcome by evidence."⁴ This presumption is often referred to as the "infancy defense."

Before Kentucky's creation of the juvenile court in 1906, the common law presumption was invaluable because our criminal law did not make distinction for a child. Every person, regardless of age went to the adult criminal court because there was no juvenile court. But juvenile court legislation forever changed the focus from punishing all persons in criminal court to providing care, treatment, correction, and control for children in a juvenile court.⁵ Since 1906, juvenile court legislation has evolved from the original, ten-section statute to a comprehensive and elaborate juvenile code that encompasses ten statutory chapters, KRS Chapters 600 to 645, having the following express legislative purposes:

(d) Any child brought before the court under KRS Chapters 600 to 645 shall have a right to treatment reasonably calculated to bring about an improvement of his or her condition and, to the extent possible, have that treatment administered in the county of residence of the custodial parent or parents or in the nearest available county;

(e) KRS Chapter 635 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation;

(f) KRS Chapter 640 shall be interpreted to promote public safety and the concept that every child be held accountable for his or her conduct through the use of restitution, reparation, and sanctions, in an effort to rehabilitate delinquent youth; and

(g) It shall further be the policy of this Commonwealth to provide judicial procedures in which rights and interests of all parties, including the parents and victims, are recognized and all parties are assured prompt and fair hearings. Unless otherwise provided, such protections belong to the child individually and may not be waived by any other party.⁶

Nowhere in this comprehensive legislation is a presumption that a child lacks criminal capacity, the reasons being that (1) a delinquency adjudication in juvenile court is not a criminal conviction⁷ and (2) allowing the presumption would frustrate the clinical and rehabilitative purposes of the juvenile code. In short, we conclude that the juvenile code extinguished the common law presumption.⁸

W.D.B. argues that the common law presumption arose to protect children from the assumption that all criminal acts are accompanied by a criminal mental state. In other words, W.D.B. believes that a court's failure to allow the presumption results in children being adjudicated guilty of crimes of which they are innocent. But this is a policy argument. And

[t]he establishment of public policy is granted to the legislature alone. It is beyond the power of a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare that acts constitute a violation of public policy.⁹

As stated above, the legislature enunciated the purposes of the juvenile code and enacted comprehensive legislation to carry into effect those purposes. The legislature did not codify the presumption, and this Court is without authority to write such a presumption into the juvenile code on the grounds of public policy.¹⁰

W.D.B. further contends that he should have been permitted to rely on the infancy defense in the adjudication hearing, which would then have required the Commonwealth to prove W.D.B.'s mental state. He insists that in the absence of the presumption, the trial court was allowed to assume that W.D.B.'s cognizance of the criminal nature of his conduct was no different from that of a mature adult.

This argument, however, is premised on mental state or mens rea as opposed to capacity. Capacity, in terms of the presumption at issue, refers not to criminal intent, but to the ability to comprehend right from wrong. The trial court's ruling that the presumption was inapplicable in no way relieved the Commonwealth of its burden of proof beyond a reasonable doubt of the requisite elements of the offense.¹¹

As we see it, the crux of W.D.B.'s challenge in this appeal is that in light of the expert testimony on W.D.B.'s mental health, the Commonwealth did not establish beyond a reasonable doubt every fact necessary to constitute the offense of first-degree sexual abuse. But on this challenge — as we will discuss in later sections of this opinion — we conclude that it was not clearly unreasonable for the trial court to find W.D.B. guilty of the offense.

Finally on this issue, we address W.D.B.'s reliance on Davis v. Commonwealth,¹² a more recent Kentucky case that cites to Thomas.¹³ Davis has no application to this case. Davis involved a challenge to a criminal conviction for wanton murder and first-degree criminal abuse. It was not an adjudication under the juvenile code, and the presumption was not dispositive of any issue in the case.¹⁴

B. Based on the Expert Testimony, the Trial Court Did Not Err in Finding that W.D.B. Had the Capacity to Commit the Offense of First-Degree Sexual Abuse.

We begin our discussion of this issue with the various standards of review implicated in juvenile proceedings. The adjudication hearing is conducted by the court without a jury.¹⁵ Accordingly, under Kentucky Rules of Civil Procedure (CR) 52.01, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A trial court's factual finding is not clearly erroneous if supported by substantial evidence.¹⁶

When a juvenile challenges the...