                                                RENDERED: DECEMBER 14, 2017
                                                            TO BE PUBLISHED

                 uiuprttttt filnurf nf ~tnfutk\!
                                 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

                                         2
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.

                                           3
      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.

                                            4
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.

                                         5
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.

                                            6
            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

                                         7
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 .

                                          8
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;

                                          9
            · (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-.




                                           10
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




                                11
