Commonwealth of Kentucky v. Kayla Melton

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1148-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE BRIAN PRIVETT, JUDGE
ACTION NO. 17-CR-00269
KAYLA MELTON APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
CLAYTON, CHIEF JUDGE: The Commonwealth of Kentucky appeals from a
Scott Circuit Court order suppressing evidence of a guardianship order in a
criminal proceeding.1 Having reviewed the record and the applicable law, we
affirm.
The Appellee, Kayla Melton, is the mother of a minor child, T.K.,
who was born on January 7, 2013. John Niemeier is T.K.’s biological father,
although he is not named on the child’s birth certificate. Melton listed the name of
her boyfriend at that time on the birth certificate. Following T.K.’s birth, Melton
and the child resided with Niemeier and his parents. Niemeier, Melton and T.K.
later moved into an apartment of their own. In March 2014, they moved back in
with Niemeier’s parents. At some point, Niemeier and Melton ended their
relationship and, in 2016, T.K. moved in with Niemeier and his girlfriend, Erica
Osborne. Melton has occasionally acted as T.K.’s caregiver.
In July 2017, the Scott District Court entered an order granting full
guardianship of T.K. to Niemeier. The district court’s order is not in the record nor
are any of the district court proceedings. Melton apparently acquiesced in the
appointment.
On August 18, 2017, Osborne picked up T.K. from his day care
without Melton’s permission. Niemeier directed Osborne to do so because he
suspected that Melton was planning to take the child to Louisville and he feared for
1
This appeal from an interlocutory ruling is permitted under Kentucky Revised Statutes (KRS)
22A.020. See Commonwealth v. Howard, 665 S.W.2d 320 (Ky. App. 1984).
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T.K.’s safety, claiming Melton did not have a valid driver’s license and used drugs.
Osborne took T.K. to Niemeier’s parents’ house. Melton broke into the residence
and attacked Osborne before grabbing T.K. She told Osborne she would never see
him again and fled with the child. Osborne suffered bruising around her eyes and
head and on her arms. According to the statement of the police officer who
investigated the incident, Niemeier told her that Melton had no custodial rights to
T.K. and that he had recently been granted custody of the child by an order signed
and entered by the district court on July 17, 2017, apparently referring to the
guardianship order.
Melton was indicted on charges of first-degree burglary, custodial
interference, third-degree criminal mischief, and first-degree wanton
endangerment.
Following the incident at his parents’ house, Niemeier filed a motion
for temporary sole custody of T.K. The Fayette Family Court conducted a hearing
and thereafter granted the motion on January 24, 2018. Its order alluded to a
domestic violence order which it had entered in favor of Niemeier and T.K. against
Melton, prohibiting Melton from having contact with the child due to her actions
which gave rise to the pending charges against her. Melton was ordered to pay
child support and have no contact with T.K. until the criminal case was concluded.
The family court also ordered Niemeier to submit to a paternity test.
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Following her indictment, Melton filed a motion on November 20,
2019, to exclude any use, reference or testimony regarding the guardianship order
in the criminal proceedings against her.
The trial court held a hearing on the motion at which the parties
debated the significance of custody as opposed to guardianship and which was the
superior right. Defense counsel argued that at the time of the incident giving rise
to the charges, Melton had custody of the child and that testimony regarding
Niemeier’s guardianship was irrelevant and could mislead the jury into believing
that Niemeier and Osborne had some right to keep the child from Melton. The trial
court opined that custody was always superior to guardianship and agreed that the
evidence was confusing and not relevant to the legal status of the parties at the time
the alleged offenses were committed. The trial court canceled the scheduled trial
date in order to give the Commonwealth time to seek a writ of prohibition from the
Court of Appeals to address the admissibility of the evidence or to renegotiate a
plea with Melton. Apparently neither of these actions were taken and ultimately
the trial court entered an order granting Melton’s motion on the grounds that the
jury would be confused by the guardianship order and possibly believe that
guardianship was the equivalent of custody. It stated that it was well-settled law in
Kentucky that guardianship is something less than custody and consequently to
allow testimony regarding a guardianship against a parent with custody would be
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confusing to the jury in a criminal trial. This appeal by the Commonwealth
followed.
As a preliminary matter, we note that the record contains almost no
materials related to the guardianship proceedings or even the guardianship order
that the Commonwealth sought to introduce. The record of the family court
proceedings is limited only to the order granting Niemeier’s motion for sole
custody. “[W]e have consistently and repeatedly held that it is an appellant’s
responsibility to ensure that the record contains all of the materials necessary for an
appellate court to rule upon all the issues raised.” Clark v. Commonwealth, 223
S.W.3d 90, 102 (Ky. 2007). “[W]hen the complete record is not before the
appellate court, that court must assume that the omitted record supports the
decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145
(Ky. 1985). Although we have been able to glean some of the background of the
case from the motions in the record, it is not the task of the appellate court to
search the record for pertinent evidence not pointed out by the parties in their
briefs. Baker v. Weinberg, 266 S.W.3d 827, 834 (Ky. App. 2008). Thus, our
review of the trial court’s decision is necessarily limited by the record.
When deciding whether to admit evidence, the trial court is charged
with balancing its probative value against the danger of undue prejudice.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We review the trial
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court’s decision for an abuse of discretion. Johnson v. Commonwealth, 105
S.W.3d 430, 438 (Ky. 2003). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” English, 993 S.W.2d at 945.
The Commonwealth argues that the trial court wrongfully excluded
evidence of Niemeier’s guardianship because it was highly probative of the charge
of custodial interference against Melton. The statute provides that “[a] person is
guilty of custodial interference when, knowing that he has no legal right to do so,
he takes, entices or keeps from lawful custody any mentally disabled or other
person entrusted by authority of law to the custody of another person or to an
institution.” KRS 509.070(1). “[T]he combined effect of the custodial
interference statute and those prohibiting kidnapping and unlawful imprisonment
makes ‘unlawful imprisonment and kidnapping inapplicable to situations involving
the acquisition of control over another because of familial affection or
considerations, and to create a special offense to deal with conduct involving an
interference with lawful custody.’” Karsner v. Commonwealth, 582 S.W.3d 51, 53
(Ky. App. 2018) (quoting the 1974 Kentucky Crime Commission/LRC
Commentary to KRS 509.060).
The Commonwealth contends that the plain language of the
guardianship statute, KRS 387.010(3), which defines a guardian as someone
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having “care, custody, and control of a minor[,]” did in fact give “custody” of T.K.
to Niemeier, and that the order was also probative of Niemeier’s state of mind, in
that he believed the district court order gave him custody of T.K. and consequently
he had the right to keep T.K. away from Melton.
In Hicks v. Halsey, a panel of this Court distinguished legal custody
from guardianship as follows: “Custody determinations are within the jurisdiction
of circuit (or family) court. KRS 23A.100. Guardianship comes within the
jurisdiction of district court. KRS 387.020. Furthermore, guardianship is not the
equivalent of custody. Guardianship gives a person ‘the powers and
responsibilities of a parent regarding the ward’s support, care, and education[.]’
KRS 387.065(1). Although the guardian ‘shall take custody of the ward[,]’
guardianship is not necessarily the same as legal custody. KRS 387.065(2)(a).”
Hicks v. Halsey, 402 S.W.3d 79, 83 (Ky. App. 2013). Hicks thereafter cites with
approval an unpublished Court of Appeals opinion, which held that a voluntary
guardianship agreement between a mother and a non-parental couple did not divest
the mother of her superior custody rights. Id. (citing R.T. v. D.R., No. 2008-CA-
000559-ME, 2008 WL 4754829 at *4 (Ky. App. Oct. 31, 2008)).
Thus, Melton’s custody of T.K. at the time of the incident leading to
the criminal charges was superior to Niemeier’s guardianship by virtue of her
status as his biological mother. Biological parents “have a fundamental, basic, and
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constitutional right to raise, care for, and control their own children.” Mullins v.
Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010) (citation omitted). Niemeier’s name
did not appear on the child’s birth certificate and there had been no adjudication of
his paternity, as evidenced by the family court’s order of a paternity test in the
subsequent temporary custody proceedings. There is no indication that Niemeier’s
status as a guardian gave him the legal right to keep T.K. away from Melton for
purposes of KRS 509.070(1), nor does the Commonwealth argue that Melton’s
acquiescence in the guardianship constituted a clear and convincing waiver of her
superior right to custody. Vinson v. Sorrell, 136 S.W.3d 465, 468 (Ky. 2004). We
conclude that the trial court did not abuse its discretion in deciding that evidence of
Niemeier’s guardianship was of limited probative value and could potentially
confuse the jury.
For the foregoing reasons, the order of the Scott Circuit Court
granting the motion to suppress evidence of the Scott District Court’s guardianship
order is affirmed.
MAZE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
THOMPSON, K., JUDGE, DISSENTING: I dissent as I believe the
guardianship order, although not made part of the record on appeal, is almost
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essential for the Commonwealth to establish the custodial interference charge,
highly relevant for putting the events which led to the charges in context, its
exclusion is an inappropriate attempt to force the Commonwealth to dismiss the
custodial interference charge, and any possible confusion can be negated by other
means.
While the majority opinion and circuit court order did not reference it,
Kayla Melton sought to exclude evidence of the guardianship order pursuant to
Kentucky Rules of Evidence (KRE) 403 on the basis that allowing its introduction
would confuse the jury, because her right to custody as the natural mother of T.K.
was superior to John Niemeier’s right under the guardianship order. Considering
the exclusion pursuant to KRE 403 helps to clarify the relevant analysis needed.
“[T]he Kentucky Rules of Evidence are ‘intended to be flexible
enough to permit the prosecution to present a complete, un-fragmented, un-
artificial picture of the crime committed by the defendant, including necessary
context, background and perspective.’” McLemore v. Commonwealth, 590 S.W.3d
229, 235 (Ky. 2019) (quoting Major v. Commonwealth, 177 S.W.3d 700, 708 (Ky.
2005)). “[T]he jury [is] entitled to know the setting of the case and . . . receive
evidence regarding the time, place and circumstances of the acts forming the basis
of the charge against [the defendant] such that its decision would not have to be
made in a vacuum.” Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky.App.
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1994). “‘Confusion of the issues’ is generally used to exclude evidence that
creates side issues that distract jurors from the real issues of the case.” Ten Broeck
Dupont, Inc. v. Brooks, 283 S.W.3d 705, 715 (Ky. 2009).
Webb v. Commonwealth, 387 S.W.3d 319 (Ky. 2012), explains the
relevant standards the circuit court should have applied in determining whether
evidence needed to be excluded under KRE 403, in that case examining whether
evidence of another crime should be excluded when linked to the identification of
the perpetrator.
There are three basic inquiries that must be made by the
trial court when making a determination under KRE 403:
(i) assessment of the probative worth of the
evidence whose exclusion is sought; (ii)
assessment of the probable impact of specified
undesirable consequences likely to flow from its
admission (i.e., undue prejudice, confusion of the
issues, or misleading the jury, undue delay, or
needless presentation of cumulative evidence); and
(iii) a determination of whether the product of the
second judgment (harmful effects from admission)
exceeds the product of the first judgment
(probative worth of evidence).
...
KRE 403, which is derived from its Federal
counterpart, does not offer protection against evidence
that is merely prejudicial in the sense that it is
detrimental to a party’s case. The Commonwealth is
permitted to prove its case by competent evidence of its
own choosing. . . .
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Furthermore, there are certain aspects of the case
that are so intertwined with the other evidence that they
must be admitted in order to paint an accurate picture of
the events in question.
One of the accepted bases for the admissibility of
evidence of other crimes arises when such evidence
furnishes part of the context of the crime or is necessary
to a full presentation of the case, or is so intimately
connected with and explanatory of the crime charged
against the defendant and is so much a part of the setting
of the case and its environment that its proof is
appropriate in order to complete the story of the crime on
trial by proving its immediate context or the res gestae or
the uncharged offense is so linked together in point of
time and circumstances with the crime charged that one
cannot be fully shown without proving the other and is
thus part of the res gestae of the crime charged.
It is for these reasons that where evidence is
needed to provide a full presentation of the offense, or to
complete the story of the crime, there is no reason to
fragment the event by suppressing parts of the res gestae.
Id. at 326 (internal quotation marks, citations, parentheticals, ellipses and brackets
omitted).
Based on this analysis, in Webb the Court concluded that it was
appropriate for the inmate to provide the context for how he knew the defendant.
Id. Using similar reasoning, in McLemore the Court concluded that evidence about
a shooting that took place three months earlier involving different parties was more
probative than prejudicial, warranting admission under KRE 403, because it was
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part of the res gestae explaining the motive behind the defendant and codefendant
shooting someone else. McLemore, 590 S.W.3d at 235-36.
I believe the circuit court abused its discretion by excluding the
guardianship order because the Commonwealth was thereby prevented from
presenting a complete picture of what occurred regarding the custodial interference
charge and all of the other charged crimes. The guardianship order is key to the
res gestae and explains why Niemeier believed he was authorized to have his
girlfriend, Erica Osborne, retrieve T.K. from daycare and provides the legal basis
of the custodial interference charge based upon Melton forcibly taking T.K. from
Osborne. The Commonwealth has great latitude in how it seeks to prove its case.
Who had a right to custody of T.K. was a central issue in the case and the
guardianship order was certainly probative on this issue. The order itself was
likely straightforward and not confusing in and of itself. It is its legal implications
which Melton truly wanted excluded.
It appears that Melton was attempting to, in effect, prematurely obtain
a directed verdict on the custodial interference charge (and was essentially granted
that by the circuit court as the exclusion of this evidence will make pursuing the
custodial interference charge extremely problematic). Only the Commonwealth is
entitled to dismiss an indictment pursuant to Kentucky Rules of Criminal
Procedure (RCr) 9.64 subject to very limited exceptions which are not applicable
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here. Commonwealth v. Hill, 228 S.W.3d 15, 17 (Ky.App. 2007). A trial court has
neither the ability nor the authority to dismiss or amend a complaint itself which is
valid on its face; even if a trial court believes the basis for the charge is legally
unsupportable, it cannot act until a trial is held and the Commonwealth fails to
present sufficient evidence to convict, thus warranting a directed verdict.
Commonwealth v. Isham, 98 S.W.3d 59, 61-62 (Ky. 2003). Therefore, in Isham, it
was not appropriate for the trial court to find that the defendant’s alleged statement
could not constitute the crime of terroristic threatening prior to a trial on the merits.
Id.I believe we should not allow the circuit court to make an “end run”
around the prohibition against a trial court dismissing a charge by barring evidence
that is highly probative of the crime of custodial interference. Simply put, the
majority opinion and the circuit court are focused on the wrong thing by evaluating
whether custody is superior to guardianship and then using this analysis to justify
excluding such evidence. Whether or not custody is superior to guardianship, such
a legal conclusion is not an adequate basis for prohibiting the introduction of the
guardianship order.
Additionally, whether or not Melton might ultimately be entitled to a
directed verdict on the custodial interference charge, the guardianship order would
still be relevant to explain why T.K. was with Osborne when Niemeier had not
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been adjudicated to be his father, and prevent confusion as to whether Niemeier
and/or Osborne were effectively kidnapping T.K. If confused about whether
Melton was justified in using “self-help” to retrieve T.K. from someone with no
legal authorization to keep him, this could make obtaining convictions on the
burglary, criminal mischief, and wanton endangerment charges that much more
difficult. The guardianship order would also help explain why the police were
called and told Niemeier had custody, and police officers’ subsequent actions.
Therefore, my analysis would not change even if the custodial
interference charge were to be ultimately dismissed (either by the Commonwealth
before trial or by the circuit court at the conclusion of the proof through a directed
verdict) because evidence of other uncharged crimes can be admissible in
appropriate circumstances. As explained in Norton, 890 S.W.2d at 638, separation
of the evidence to exclude an uncharged crime is not appropriate if it would
“seriously and adversely affect[] the Commonwealth’s ability to present the case to
the jury.” I believe there can be no doubt that the exclusion of the guardianship
order would do just that to the Commonwealth’s case here.
Reversal is warranted. There are other options available to reduce any
possible juror confusion besides excluding the guardianship order. At trial, upon
an appropriate request, the circuit court can admonish the jury as to the proper use
of the guardianship order and, should the custodial interference charge survive
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motions for a directed verdict, appropriate jury instructions can be given to clarify
the needed elements for conviction.
Accordingly, I dissent.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Molly Mattingly
Attorney General of Kentucky Frankfort, Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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