         IMPORTANT NOTICE
    NOT TO BE PUBLISHE D OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                    RENDERED : MARCH 22, 2007
                                                        NOT TO BE PUBLISHED




             ,;VUyrrMr Courf of ~R
                                2005-SC-000880-MR


 OWEN RAY GADD                                                         APPELLANT


                  APPEAL FROM GARRARD CIRCUIT COURT
                   HON. C. HUNTER DAUGHERTY, JUDGE
 V.                    INDICTMENT NO . 04-CR-00041


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                                      Affirminq

       A jury of the Garrard Circuit Court convicted Appellant, Owen Ray Gadd,

of two counts of first degree sodomy of a child under the age of twelve. For

these crimes, Appellant was sentenced to life imprisonment . Appellant now

appeals to this Court as a matter of right . Ky. Const. § 110(2)(b) . For the

reasons set forth herein, we affirm Appellant's convictions .

       The evidence introduced at trial indicated that on an unknown date in

2001, Appellant asked the seven-year-old victim to accompany him to his

apartment to retrieve a surprise for the victim's mother, whom he was dating .

Appellant threatened to kill the victim's family members while traveling to the

apartment. Once at the apartment, Appellant terrorized, threatened, and

sodomized the child . Two to three days later, Appellant repeated these ghastly
 acts upon the victim. Soon thereafter, Appellant and the victim's mother parted

 ways; and the victim had no further contact with Appellant .

        In February 2004, the victim was examined by a doctor because he was

 having difficulty sitting . Upon examination, the doctor detected venereal warts.

When the doctor asked the victim if he had ever been touched inappropriately,

the child started crying . An investigation promptly ensued. During the

investigation, a scar was found on Appellant's genitals which indicated that he

had venereal warts in the past, and Appellant admitted to having had and been

treated for the condition .

       On June 18, 2004, Appellant was indicted for the above referenced

crimes. He was subsequently convicted by jury and this appeal followed . For

the reasons set forth herein, we now affirm his convictions .

       Appellant presents three assignments of error. He first alleges he was

unduly prejudiced when inadmissible opinion testimony was introduced at trial .

Specifically, he argues that testimony offered by Detective Crockett "invaded the

province of the jury and clearly indicated his belief in the guilt of [Appellant] ." See

Nugent v. Commonwealth, 639 S.W.2d 761, 764 (Ky. 1982) (opinions as to

whether the accused is guilty or innocent are inadmissible) . We disagree ; the

holding in Nu ent, supra , is not applicable to the facts of this case .

       The relevant testimony reads as follows:

Q:     So, what was the point of the search warrant then?

A:    The point of the search warrant, again -- number one it was a tool that I
      wanted to use in my interview with the alleged perpetrator, Mr. Gadd, and
      number two, I specifically instructed him that I would go that route. I was
      basically keeping my word with him . And, number three, the physical
      examination, it was no different, in my eyes, than utilizing a polygraph or
      something to that affect [sic].
 Later, the testimony continues as follows :

 Q:     Detective, when you -- before we approached the bench, you were talking
        about the -- why you went through the exercise [of getting a physical
        examination] at that certain point. And, I think you said that part of the
        reason was to determine whether or not he had warts, by physical
        examination, is that right?

A:      That's correct.

Q.      So, once he makes that admission [of having had venereal warts] to you,
        how was that significant, as far as that day's events?

A.      Basically it was very significant, in that it corroborated with what [the
        victim] had alleged, and the fact that I felt he was initially untruthful with
        me .

Appellant contends that these statements amount to a declaration that "any sign

of genital warts on Mr. Gadd was the equivalent of polygraph evidence" and that

"Mr. Gadd was lying and [therefore] guilty . . . ."

       Appellant misconstrues Detective Crockett's testimony regarding the use

of polygraph tests. As the trial judge ruled, the word "polygraph" was mentioned

in relation to the types of tools detectives use when interviewing suspects. Thus,

we do not find that Detective Crockett's statement which mentioned the word

"polygraph" was prejudicial .

       Detective Crockett's statements also do not declare that Appellant is

guilty; and thus, Appellant's citation to the holding in Nugent, supra, is without

effect. Rather, his statements amount to opinions or inferences regarding the

results of his investigation . The admissibility of this kind of testimony is subject to

KRE 701 which directs:

       If the witness is not testifying as an expert, the witness' testimony in
       the form of opinions and inferences is limited to those opinions or
       inferences which are :
        (a)    Rationally based on the perception of the witness ; and
        (b)    Helpful to a clear understanding of the witness' testimony or
               the determination of a fact in issue .

        In this case, Detective Crockett's observations and inferences were made

 in response to questioning, and were rationally based on his perceptions from the

aforementioned investigation . When Detective Crockett first interviewed

Appellant, he did not admit having venereal warts. Once Appellant was

confronted with a physical examination, he admitted to Detective Crockett that he

had venereal warts in the past and that he was better off incarcerated, away from

the general public. Accordingly, we find Appellant's inferences to be in

compliance with subpart (a) of KRE 701 .

       We also believe that subpart (b) is satisfied because the testimony was

helpful to a clear understanding of Detective Crockett's testimony regarding the

results of his investigation . See Mills v. Commonwealth , 996 S.W .2d 473, 488

(Ky. 1999) (opinions and inferences by police detective which evaluated images

displayed on a videotape of the crime scene was admissible pursuant to KRE

701). At no point does Detective Crockett declare Appellant guilty or imply that

the victim's story should be believed . Rather, he simply makes inferences based

on what his investigation revealed - that certain statements from Appellant

corroborated the victim's story and indicated that Appellant was initially untruthful

with the detective. Accordingly, we find the testimony does not invade the

province of the jury and was admissible pursuant to KRE 701 .

       Appellant next alleges reversible error in the improper introduction of

hearsay testimony . Appellant acknowledges that any error is unpreserved ; but

claims he is entitled to reversal under the palpable error standard set forth in
 RCr' 10.26 . Upon review, we find no error, and, in any event, even if error was

 committed, the testimony could not have caused any manifest injustice to

 Appellant . Id.

        The doctor who initially diagnosed the minor victim with venereal warts

 testified that the victim identified Appellant as the person who assaulted him. We

 believe this information was reasonably pertinent to the victim's medical

treatment for the reasons set forth in Edwards v. Commonwealth , 833 S.W .2d

842 (Ky. 1992) . See KRE 803(4). In Edwards , supra, this Court noted that the

treating physician "had to know who the abuser was in order to prevent future

harm to the child and to prevent the spread of a sexually transmitted disease . . .

." Id. at 844. Likewise, it was important in this case for the physician to ascertain

the identity of the abuser so as to (1) evaluate whether the child was in imminent

danger of continued abuse; and (2) to check the spread of a sexually transmitted

disease .

       Although Edwards , supra, referenced cases in support of its holding where

statements of identity were admitted, in part, because the abuser was a "family,

household member, ,2 we do not believe the status of being a "family" or

"household member' is necessarily required for statements of identity to be

admitted pursuant to KRE 803(4). Indeed, it is absurd to posit that a physician's

care evaluation loses its probative legitimacy simply because his inquiry reveals

that the alleged abuser is not a family or household member. See also KRS



  Kentucky Rules of Criminal Procedure .
2 Interestingly enough, the perpetrator in Edwards , supra, was neither a family
nor a household member; he was the live-in boyfriend of the victim's
grandmother whom the victim did not live with, but rather only visited on
occasion . Id. at 843.
 620.030 (physicians in Kentucky are required to immediately report all suspected

 cases of child abuse, including but not limited to, reporting "[t]he name and

 address of the person allegedly responsible for the abuse or neglect").

        Moreover, even if one assumes this statement was erroneously admitted,

the testimony nevertheless did not cause any manifest injustice to Appellant .

 RCr 10.26. Generally, prior consistent statements of a witness are deemed

prejudicial only when the witness' credibility is unfairly bolstered by the

extraneous testimony. See, e .g_, Bussey v. Commonwealth , 797 S.W .2d 483,

485 (Ky. 1990) . In this case, the disputed testimony was limited in nature and of

little significance . The doctor's testimony merely confirmed an obvious and

undisputed fact at trial - that the criminal investigation of Appellant was initiated

by the minor child's disclosures at the doctor's office. Accordingly, we hold that

even if the testimony was erroneously admitted, it was not substantial or

significant enough, either in time or in substance, to bolster the credibility of the

victim and therefore, did not cause any manifest injustice to Appellant . Cf .

Owens v. Commonwealth, 950 S .W .2d 837, 838 (Ky. 1997) (prior consistent

statements of testifying victim which identified assailant by name fell within KRE

801 A(a)(3) exception to hearsay rule).

       Finally, Appellant contends he is entitled to a new trial because the trial

court failed to conduct a more thorough inquiry regarding Appellant's complaints

about his attorney . Upon review, Appellant's argument is without merit.

       Prior to trial, Appellant wrote a letter to the trial court asking for new trial

counsel because she "only come one time to see me in 6 months ;" because he

didn't "feel like (she] worried about me what happens to me ;" and she didn't "act
like [she] believe[d] me that I did not do it." Appellant then threatened to take his

own life. The trial court treated the letter as a motion for new counsel and held a

hearing on the motion on March 18, 2005 . At the hearing, the trial court inquired

of Appellant's stand-in counsel and Appellant himself, asking if they had anything

further to present to him . Both said no, and upon that response, the trial court

made his ruling as follows :

       Mr Gadd, there have been a couple of things that have slowed this
       process down, but Ms . McCullough is an experienced litigator, and I
       am going to leave her on the case. We will go on and try to move
       this along as quickly as we can .

       At sentencing, Appellant alleged that his counsel was ineffective and that

he should be granted a new trial due to her incompetence . The trial court

overruled Appellant's motion, holding :

       Mr. Gadd, the evidence was overwhelming as to your guilt. It was
       overwhelming as to the connection between you and the child and
       the genital warts. It was overwhelming . [The child victim's]
       testimony is credible, and I felt like [pause] that the defense was
       presented as best it could be under the circumstances . Thank you
       very much . I've imposed the sentence .

       Appellant now claims that the trial court's failure to conduct a more

thorough inquiry into his allegations was reversible error. Appellant's argument

was addressed and rejected in Wilson v. Commonwealth, 836 S.W .2d 872 (Ky.

1992) where we held that the trial court is not required to conduct "an extensive

[pretrial] inquiry into [an] appointed counsel's background, qualifications, fitness

and alleged prior acts of misconduct." Id . at 879, overruled on other grounds by

St. Clair v. Roark, 10 S.W .3d 482 (Ky. 1999).

       Indeed, a defendant is not entitled to a substitution of appointed counsel

unless good cause exists to justify it. See Henderson v. Commonwealth, 636
S .W .2d 648, 651 (Ky. 1982) ("we reiterate that a defendant who is represented

by a public defender or appointed counsel does not have a constitutional right to

be represented by any particular attorney, and is not entitled to the dismissal of

his counsel and the appointment of substitute counsel except for adequate

reasons or a clear abuse by counsel") ; see also, KRS 31 .030(12) (Department of

Public Advocacy is authorized to assign substitute counsel, for good cause, at

any stage of representation) . Appellant's letter, in the absence of any further

proof, suggestion, or inclination of any sort that his appointed trial counsel was

actually defective, was not sufficient to establish good cause for a substitution of

counsel . The trial court's responses to Appellant's allegations were appropriate

under the circumstances ; and it had no affirmative duty to perform any further

inquiry or investigation . Wilson, supra, at 879 .

       Moreover, after trial, Appellant is not entitled to any relief on this issue

unless he demonstrates "prejudice by the attorney's performance ." Id. In this

case, Appellant presents no proof whatsoever that he was prejudiced by the

attorney's performance . Accordingly, Appellant's claim is without merit.

       For the reasons set forth herein, the judgment and sentence of the

Garrard Circuit Court is affirmed .

       Lambert, CJ ; Cunningham, Minton, Noble, and Scott, JJ., concur.

McAnulty, J., and Schroder, J., concur in result only.
ATTORNEY FOR APPELLANT

Donna L. Boyce
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601

ATTORNEY FOR APPELLEE

Gregory D. Stumbo
Attorney General

David W. Barr
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
