Linda Richmond v. Commonwealth of Kentucky ( 2017 )

RENDERED: DECEMBER 14, 2017
TO BE PUBLISHED
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20 l 6-SC-000389-MR
LINDA RICHMOND APPELLANT
ON APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE JEAN CHENAULT LOGUE, JUDGE
NO. 14-CR-00523-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Linda Richmond appeals as a matter of right from her conviction by jury
and a 70-year sentence arising from charges of one count of first-degree
·assault, 11 counts of first-degree criminal abuse, and on~ count of second-
. degree assault stemming from the abuse of her boyfriend's minor child, N.V.
~or the following reasons, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND.
In.2014, ~ichmond was arrested with her boyfriend, Julio Valladares,
after Richmond took Julio's daughter, N.V. to the emergency room where N.V.
presented with bruises, pressure sores, dehydration, malnutrition, and an
abnormally low temperature. After seventeen days in the hospital, N.V. was
released to foster care.
Richmond and Valladares were each charged with one count of first-
degree assault, one count of second-degree assault, and thi~teen counts of
first-degree criminal abuse. Before trial, Valladares reached a deal with the
prosecution and pled guilty to several offenses in exchange for a recommended
sentence of twenty years. Richmond chose to prqceed to trial.
'
During a five-day trial in April 2016, the jury heard of the systemic abuse
Valladares and Richmond inflicted upon N.V. designed to "break" N.V. of her
autism. Richmond and Valladares lived together with N.V. and Richmond's
teenage son. N.V. initially attended public school. However, after the school
contacted Valladares regarding red marks on N.V;'s legs, discovered while
assisting the child use the restroom, he initially asked that the school no
longer assist her, but eventually took her out of school to be "homeschooled."
Valladares admihed that he had no experience or plan for homeschooling N.V.,
and her instruction eventually disintegrated into N.V. being forced to sit for·
hours writing lines in a "corrections" binder. The binder contained over 300
entries, mostly dealing with "unfavorable" behavior and the punishments N.V.
received for such behavior. Most of this behavior and punishment centered
around,N.V.'s accidental or· untimely urination and defecation. N.V. was
restrained at the table writing correctfons for so long that she developed
pressure sores on her buttocks and legs, which were sprayed with alcohol to
clean the wounds, but also to "wake her up." In addition, N.V. was forced to
remain in her soiled bed if she had an accident during the night, and
eventually she was forced to sleep on a trash bag or puppy pad directly on the
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floor. Text messages between Vallada_res and Richmond also referred to N.V.
having feces applied to her face and made to ingest her urine or feces.
During trial, Valladares admitted that he and Richmond abused N.V.,
and, in fact, much of the abuse seemed crafted by Richmond; she even drafted
a routine to make sure Valladares stuck to the "schedule" of abuse while she
was at work. Other forms of abuse included forcing N.V. to endure cold
showers, sometimes every hour, resulting in the phrase "showers on the hours"
to be used in the home. Investigators also found a leather belt hanging next to
the ~hower, purportedly for Valladares to whip the child in the shower.
Va119.dares and Richmond also withheld food from N.V. and made her "earn"
the food she was given, resulting in extreme malnutrition and starvation over
time. In contrast,, Richmorid's son did not endure any of this treatment,
coming and going as he pleased, with his own mini fridge in his room.
Eventually, N.V.'s condition became so dire that Richmo~d was
compelled to bring her to the hospital, at which time the child abuse became
evident. During police interviews, Richmond initially denied any abuse,
alleging, among other statements, that N.V. had been fine a few days earlier,
that she had no idea what could have caused the pressure sores, and that she
had.never limited N.V.'s food intake. But when confrortted with Valladares's
statements and evidence contrary to her version of events, Richmond admitted
to the abuse, e.g., forcing N.V. to remain in a soiled. bed or on puppy pads,
spanking N.V. while she was in the cold shower, and knowing that Valladares
gave N.V. cold showers.
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After deliberating for a little over an hour; the jury returned a guilty
verdict for one count of first-degree assault, one count of second-degree
assault, and 11 counts of first-degree criminal abuse,1 with a recommended
sentence to run consecutively for a total of 90 years. In June 2016, the trial
court denied Richmond's motion for a new trial and sentenced her to total of 70
years. This appeal follows as a matter of right.
II. ANALYSIS.
Richmond's appeal concerns the testimony of N.V.'s current foster
mother, Curry, on the fourth day of trial.
First, Richmond argues that Curry's testimony was not relevant to the
abuse that occurred months before, and thus should not have been admitted.
Richmond objected to the relevancy of Curry's testimony; therefore, we review
the trial court's ruling for an abuse of discretion. We "will not disturb the trial
court's decision to admit evidence absent an abuse of discretion." Anderson v.
Commonwealth, 231S.W.3d117, 119 (Ky. 2007). The test for an abuse of
discretion "is whether the trial judg~'s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co.
v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999)).
Curry testified to general information about N.V., including that she
received N.V. in August 2015 from another foster family, and that N.V. was ten
1
Two of the thirteen counts of criminal abuse were dismissed during the trial.
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years old at that point. She further testified that N.V. was "very delayed for her
age" with a "really low IQ" and had comprehension problems with language;
she testified that N.V. was currently in special education at school, learning at
a kindergarten level. Curry stated that she had to work daily with N.V. about
having bowel movements since the child was afraid to evacuate her bowels
because "poop came from a bad place," and would hold it, once for almost two
weeks, sometimes needing medication ~o facilitate bowel movements. Curry
also testified that N.V. 'Yould not even say the word "poop," rather she called all
bathroom activities, "pee." Curry further testified that N.V. had to be coaxed
into a bathtub, needing to check the temperature before she got in, and that
showers "were completely out" because N.V. suffered meltdowns at the thought
of entering a shower. Curry described getting N.V. into the bathtub as a "big
ordeal." Curry also explained how N.V. refused to use any sort of writing
utensil and that N.V. "loves to eat," becoming excited when fed.
Richmond argues that the foster mother's testimony was irrelevant, and
unfairly prejudicial, outweighing its probative worth. KRE2 401 defines
"relevant evidence" as "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." "Evidence
which is not relevant is not admissible." KRE 402. "Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
2 Kentucky Rules of Evidence.
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the danger of undue prejudice, confusion of the issues., or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative
evidence." KRE 403. "KRE 403 allows for the exclusion .of evidence that
. may
be unduly prejudicial. Evidence that appeals to the jury's sympathies, arouses
its sense. of horror, provo.kes its instinet to punish, or otherwise may cause a
jury to base its decision on something other than the established propositions
in the case is unfairly prejudicial." Butler v. Commonwealth, 367 S.W.3d 609,
615 (Ky. App. 2012) (internal quotations and citation omitted).
The Commonwealth presented ample evidence during the four days prior
to Curry's testimony, including graphic photographs of N.V. in the hospital and
horrific testimony from the child's own father. We note that the physical
responses of N.V. to certain situations so paramount to her abuse case, e.g.,
the shower, eliminating her bowels, writing utensils, are especially relevant to
this case. Furthermore, Curry did not testify about the abuse or its effect on
N.V.; rather, she merely described the current state of the child's abilities and
stressors. Given the weight of the evidence against Richmond, this testimony
was relevant and not unduly prejudicial. We find no abuse of discretion with
the trial court's admission of Curry's
. . testimony.
Richmond next argues the admission of Curry's testimony constituted
improper victim impact evidence. This issue is unpreserved, and thus reviewed
for palpable error. RCr3 10.26 dictates:
3 Kentucky Rules of Crimii:ial Procedure.
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A palpable error which affects the substantial rights of
a party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even
though insufficiently raised or preserved for review,
and appropriate relief may be granted upon a
determination that manifest injustice has resulted
from the error.
"RCr 10.26 authorizes us to reverse the trial court only upon a finding of
manifest injustice. This occurs when the error so seriously affected the
fairness, integrity, or public reputation of the proceeding as to be shocking or
jurisprudentially intolerable." Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky.
2015) (internal quotations and citations omitted).
· This Court has held it permissible to introduce evidence during the guilt .
phase regarding background information about the victim, including physical
condition. See, .e.g., Ernst v. Commonwealth, 160 S.W.3d 744, 763 (Ky. 2005) ·
(holding it permissible for the victim's family to describe the elderly victim's
physical limitations, including that she was drawing disability payments, which
the Court found to be "especially relevant" since the defendant claimed that the
victim attacked him with a vase); Wheeler 1v. Commonwealth, 121 S.W.3d 173,
181 (Ky. 2003) (holding no prejudicial error for the Commonwealth's witness to
testify that victim was pregnant); and Campbell v. Commonwealth, 788 S.W;2d
260, 263 (Ky. 1990) (hol4ing no error in allowing the victim's friend to testify
that victim was a teacher, lifted weights and jogged six miles per day).
"[A] certain amount of background evidence regarding the victim is
relevant to understanding the nature of the crime." Bussell v. Commonwealth,
882 S.W.2d 111, 113 (Ky. 1994). The prosecution can introduce evidence in
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the guilt phase identifying a victim as a living person rather than a simple
statistic. McQueen v. Commonwealth, 669 S.W.2d .519, 523 (Ky. 1984).
Although background evidence regarding the.victim is relevant to
understanding the nature of the crime, "[v]ictim impact evidence differs from
victim background evidence, in that the former is 'generally intended to. arouse
sympathy for the· families of the victims, which, although relevant to the issue
of penalty, is largely irrelevant to the issue of guilt or innocence."' Ernst, 160
S.W.3d at 763 (quoting Bennett v. Commonwealth, 978 S.W.2d 322, 325-26
(Ky. 1998)). "Such evidence does not unduly prejudice a defendant 'as long as
the victim is not glorified or enlarged."' Ernst, 160 S.W.3d at 763 (quoting
Bowling v. Commonwealth, 942 S.W.2d 293, 302-03 (Ky. 1997)).
In this case, Curry was very matter of fact, speaking in a moderate, soft
tone;· she was not "overly emotional, condemnatory, accusative, or demanding
vindication." Foley v. Commonwealth, 953 S.W.2d 924, 937 (Ky. 1997).
Additionally, Curry's testimony "was not riddled with emotional outbursts, nor
was it overly expounded upon by the prosecution." Campbel.l, 788 S.W.2d at
264. In fact,.the Commonwealth did not even mention Curry's testimony again
during the trial or during closing argument. Curry's testimony did not rise to
the level of an impermissible victim impact statement. Accordingly, we
conclude that this testimony was permissible victim background evidence, and
did not result in any manifest injustice.
Last, Richmond argues that the trial court committed reversible error in
permitting Curry to testify as an expert regarding the neurological responses of .
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children with autism. As this argument is unpreserved, we review for palpab_le
error pursuant to RCr 10.26.
Specifically, Richmond objects to a short portion of Curry's testimony
that:
N.V. has different neurological responses. Children
with autism have executive functioning issues. She
has times she will squeeze her jaw, squeeze her arms
around her body, flap her arms, and her hands in
response to various things she may be reacting to. It
could be good, bad, happy, sad, excited, scared.
Flapping is very normal in the autistic world - most
autistic children flap, and they flap for different
reasons; it could be excited, scared, stressed.
Richmond argues that this constitutes improper expert testimony in violation
of KRE 702, which requires an expert be qualified "by knowledge, skill,
experience, training, or education" if the testimony is "based upon sufficient
facts or data; ... the product of reliable principles and methods; and the
witness has applied the principles and methods reliably to the facts of the
case." Richmond asserts that Curry "should have never been permitted to
testify to the 'neurological responses' of children with autism," and this
improper testimony led to undue prejudice, which swayed the jury "by
bolstering the testimony regarding N.V.'s abilities." We disagree that this
evidence constitutes expert testimony.
KRE 701 provides:
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are:
(a). Rationally based· on the perception of the witness;
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· (b) Helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue; and
(c) Not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Although Richmond is correct that a foster parent may not testify as an expert
witness competent as to the existence of abuse, Curry did not testify in any
- way as to the existence of abuse nor to how abuse affects autistic children
neurologically. See Crum v. Com., Cabinet for Human Res., 928 S.W.2d 355,
357 (Ky. App. 1996). When reviewed in context, Curry did not testify as an
expert on neurological respons~s of children with autism; rather, she testified
to common behaviors of a"l,ltistic. children specifically related to N.V.'s autistic
behaviors, most presumably based on the eight months she had cared for the
child. Further, this testimony was especially helpful to this case since the
main impetus of the abuse inflicted upon N.V. by Richmond was to "break" her
of autistic behaviors. This testimony did not unfairly prejudice Richmond, and
the trial court did not err in allowing Curry to testify as a lay witness regarding
her experiences with N.V.
III. CONCLUSION.
We conclude that the trial court did not err in allowing the testimony of
the foster mother, Curry. Accordingly, we find no reversible error, and affirm
the judgment of conviction and sentence. ·
All sitting. All concur-.
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COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Jeffrey Allan Cross
Assistant Attorney General
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