         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTERJANUARY l, 2443, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : JUNE 17, 2010
                                                         NOT TO BE PUBLISHED

              ,$Uyrrmt Courf of '~trufurkt
                               2009-SC-000012-MR



ONDRA LEON CLAY                                                     APPELLANT




                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                HONORABLE PAMELA GOODWINE, JUDGE
                            NO. 07-CR-00463




COMMONWEALTH OF KENTUCKY                                             APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING


      Appellant, Ondra Leon Clay, was convicted of first degree rape and first

degree sodomy and sentenced to thirty years' imprisonment. Appellant appeals

his convictions as a matter of right . Ky. Const. § 110(2) (b) .

                                   I. Background

      In 1997, a man grabbed S.R. from behind while she was walking to work

and threatened to kill her if she tried to run away or to look at him. The man

pressed against her neck a cold hard object that she believed to be a gun. The

man penetrated S.R. from behind and then ordered her to turn around and get

on her knees . The man forced his penis into S .R.'s mouth and told her that if
she bit him, he would kill her . He ejaculated inside her mouth. Afterwards, he

demanded that she leave, and she ran away.

      S.R.'s father found her in the living room that morning, sobbing. It took

several minutes for him to understand that she was telling him that she had

been raped. Once he understood, her father put her in the car and drove her

around the neighborhood looking for the assailant . When they could not find

the man, S .R.'s father took her to the UK Medical Center Emergency Room .

S .R. told the staff that she only got a glimpse of her attacker and could not

identify him.

      Dr. Michael Stava and Nurse Teresa Stevens treated S.R. in the

emergency room. She told Dr. Stava and Nurse Stevens that a man had

penetrated her both vaginally and in her month . She did not know if the man

ejaculated during the rape, but that he did ejaculate in her mouth and she had

been "spitting" since the attack. The doctor swabbed the vagina and the inside

of the mouth. They also swabbed suspected semen from S.R.'s thigh, collected

pubic hair combings, and plucked hair from her head. The suspected semen

was swabbed approximately one and a half hours after S.R.'s father found her

on the living room floor.

      The police did not send material to the Kentucky State Police Lab for

testing, because the KSP lab (in 1997) did not routinely test for DNA if there

was no identified suspect for the crime. Therefore, the evidence collected

remained untested and the alleged rape and sodomy went unsolved for years .
        In 2005, the KSP lab received a federal grant to review evidence in "cold

cases." Under the grant, the KSP analyzed evidence for the presence of sperm

and, if present, would forward the evidence to Orchid Cellmark to extract the

DNA profile . In this case, semen was present on the vaginal swab and Orchid

Cellmark determined that there was DNA from an unknown male . 1 Orchid

Cellmark then sent the DNA profile to the KSP lab and it was entered into the

CODIS database . The lab got a "hit" on Appellant's DNA profile, which had

previously been entered into CODIS.3 The KSP lab then obtained a sample of

Appellant's DNA and compared the profile with that obtained from the vaginal

swab . Appellant's profile matched the evidence at all 13 loci.

        Appellant admitted that he had intercourse with S .R. but claimed that it

was consensual . He denied her allegations regarding oral sex . Appellant was

tried on one count of rape and one count of sodomy which ended with a hung

jury.

        In both the first and the second trials, the Commonwealth called Nurse

Stevens and Marcie Atkins as witnesses . Atkins was a Forensic Science

Specialist II with the Forensic Biology Department of the KSP who performs


   1 The lab also extracted DNA from the vaginal swab and attributed it to a "minor
contributor." Orchid Cellmark determined that S.R . could not be excluded as the
minor contributor .
   2 CODIS is an acronym for "Combined DNA Index System."
   3 Appellant's DNA was in the database, because during the period between S .R.'s
assault in 1997 and the "hit" on CODIS in 2005, Appellant was charged and convicted
of the rape and murder of a young woman in Fayette County and sentenced to Life
Without Parole for 25 Years. See Clay v. Commonwealth, 291 S.W.3d 210 (Ky. 2008) .
Appellant was serving the life sentence (and the concurrent sentence for rape) at the
time of the charge and conviction in the instant action .
both serological and DNA testing for the agency. In both trials, Appellant

objected to the introduction of these witnesses' opinions, arguing that the

testimony was "speculative," and that the witnesses were not qualified to give

expert opinions . In the first trial, the court overruled Appellant's objections

stating that it would allow Stevens to "answer basic questions." In the second

trial, the court indicated that it would allow the testimony for the same reasons

as stated before. Stevens then proceeded to testify regarding biological

processes of the human mouth. Atkins answered questions regarding why, or

why not, semen may be detected on a swab from the mouth.

      The second trial resulted in convictions on both the rape and sodomy

charges, and the jury recommended a twenty-year sentence for rape and a ten-

year sentence on the sodomy, to run consecutively. The Commonwealth

wanted Appellant's sentences to run consecutively with his life sentence while

Appellant argued that the sentences for rape and sodomy should not run

consecutive with his life sentence . The trial court was concerned that

Appellant might ultimately be sentenced to less than life as the previous

murder and rape convictions were still on appeal. Thus, the trial court

sentenced Appellant to 30 years for rape and sodomy to run consecutive with

his previously imposed sentence of Life Without Parole for 25 years (LWOP25)

for rape and murder.
                                  II. ANALYSIS

    A. The Trial Court Did Not Err In Ordering That the Term of Years
           Sentence Run Consecutively with the Life Sentence

      Appellant contends that the sentencing issue is "at least partially

preserved." At sentencing, Appellant argued that it was error to run the 30-

year sentence consecutive with the previously rendered life sentence . The

lower court told Appellant that it would "adjust" the sentence if Appellant could

point to current law supporting his position. The court gave Appellant the

opportunity to "brief" the sentencing issue, but nevertheless rendered the

sentence at that time. As Appellant failed to take advantage of the trial court's

invitation to file a brief, the Commonwealth suggests that the sentencing issue

was not preserved.4 We disagree . RCr 9 .22

      The parties agree that the controlling statutes are KRS 532 . 110,

addressing multiple sentences, and KRS 532 .080, which deals with sentence

enhancements for a persistent felony offender. Together, these statutes limit

the time that aggregate indeterminate sentences may run - which is the time

that a PFO sentence may be imposed for the offense of conviction, or, at the

most, 70 years.

      This Court initially held that the statutes did not prohibit a sentence for

a term of years from being run consecutively with a capital murder sentence,


        4 Appellant relies on Yarnell v. Commonwealth, 833 S .W.2d 834 (Ky. 1992) and
See v. Commonwealth, 746 S.W.2d 401 (Ky. 1988) in support of his argument that the
trial court erred in running the term of years sentence with the previously imposed
LWOP25 .
see Rackley v. Commonwealth, 674 S .W.2d 512 (Ky. 1984), but later found that

a sentence for a number of years cannot run consecutive with a life sentence,

whether in a capital case or not. See Bedell v. Commonwealth, 870 S .W.2d

779, 783 (Ky. 1994) ; See also Mabe V. Commonwealth, 884 S .W.2d 668 (Ky.

1994) ; Wells v. Commonwealth, 892 S .W.2d 299 (Ky . 1995) .

       The Commonwealth argues that the Bedell line of cases differ from the

instant action because, in the previous cases, the term of years sentence and

life sentence were imposed as a result of the same trial, whereas here,

Appellant's sentence of 30 years was ordered to run consecutively with a life

sentence imposed from a previous trial. The Commonwealth contends that we

recognized this distinction in Stewart v. Commonwealth, 153 S.W .3d 789, 792

(Ky. 2005) .

       In Stewart, the defendant was convicted of rape and burglary and was

sentenced to a term of ten years in 1985, and was paroled in 1990 . While on

parole, Stewart committed first-degree robbery . He appeared on the parole

violation and was given a serve-out on the original sentence . Later, he was

convicted on the robbery charge as well as for being a persistent felony

offender. His enhanced sentence for those crimes was life in prison . Stewart

appeared before the parole board in 2001 . 5 153 S .W.3d at 791 .

       Stewart argued that he had served his ten year sentence for rape by

2001 . Relying on Bidell and Mabe, the Court of Appeals found that Stewart's

   5The dispositive issue of the case was whether the Parole Board had the authority
to rescind its recommendation to grant parole to Stewart - not the calculation of
multiple sentences.
sentence for rape and the life sentence must run concurrently with one another

and thus rejected the argument that he had served out his ten year sentence

by 2001 . Id. at 792.

      In Stewart, we rejected the lower court's decision to apply Bedell and its

progeny, finding that "[a]11 of those cases involved situations where the

defendant had been convicted at the same trial of crimes where one sentence

was for a term of years and the other for life."6 Id.

      The Commonwealth argues that if we do not now follow Stewart, we will

adopt an "absurd application of law where a defendant's total sentence is

dependant solely on the order of conviction," and, in this case, will create a

potential "windfall" for Appellant. Appellant, on the other hand, opines that

Stewart does not apply here, as his life sentence was rendered before the term

of years sentence.

      Yet, the applicable statutes do not differentiate between aggregate

sentences rendered in one action and "combining" one sentence from one trial

with a second sentence adjudged in a later, separate trial. In Stewart, this

Court held that running a life sentence rendered in one trial consecutive with a




   6 We also note that, unlike Bedell and the other cases like it, Stewart had received a
serve out date on the term of years sentence before he was sentenced to life. The
Court reasoned that Stewart would not "start serving a life sentence until after he
finished his the term of years ." Stewart, 153 S.W.3d at 792.
term of years sentence previously rendered in a separate trial was appropriate.?

Id.

         Appellant suggests that whether life and term of years sentences may

run consecutively is dictated by the order in which the sentences were rendered

- that is, if the life sentence is rendered in a separate trial before the term of

years sentences, as in this case, then Bedell must apply and the sentences

cannot run consecutive to each other, but if the life sentence is rendered in a

separate trial after a term of years sentence, then we may apply the logic of

Stewart. This is not the case . Stewart did not fashion a rule that is dependant

upon whether the life sentence was rendered in the first trial or the second

trial.

         Read together, KRS 532 .110 and 532 .080 apply to sentences rendered in

the same action for separate offenses. Thus, it is improper to run a life

sentence consecutive with a sentence for a term of years because to do so

would be in direct contravention of KRS 532 .110(1)(c) . In this case, however,

we have an earlier existing life sentence that was properly ordered to run

concurrently with a term of years sentence for rape (from the same, earlier,

trial) and two term of years sentences rendered for the rape and sodomy

convictions in the present case . Therefore, the rule handed down in Bedell

does not apply in this instance. Thus, the judgment ordering Appellant's



  7 This Court did not overrule Bedell and its progeny in Stewart. To the contrary,
while we commented on factual distinctions, we cited Bedell, noting "it is true that it is
improper to order a term of years sentence to run consecutively with a life sentence."
Stewart, 153 S.W.3d at 792 . (emphasis added) .
twenty-year sentence and ten year sentence for rape and sodomy to run

consecutively with each other and to the LWOP25 sentence for murder that

was rendered in a prior, separate case, is not error and is therefore upheld.

        B. Allowing Testimony of Nurse Stevens and Marcie Atkins
                      Was Not an Abuse of Discretion

      A trial court's ruling as to the admissibility of evidence is reviewed under

an abuse of discretion standard . The test for abuse of discretion is whether the

trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles . Commonwealth v. English, 993 S .W.2d 941, 945 (Ky.

1999) . Appellant argues that the trial court abused its discretion when it failed

to conduct a Daubert hearing sua sponte, and failed to make a determination of

the testimony's reliability on the record .$ Appellant also asserts that the

court's decision to allow the testimony lacks "reasonable support in the

record ." Appellant's primary argument is that neither witness was qualified to

tell the jury how long semen would stay in the mouth or whether semen would

be "spit out" and thus dissipated within one hour and fifteen minutes . We

disagree.

      The Commonwealth contends that the testimony at issue contained

"unremarkable facts" and suggests that the content was such that the court

could have taken "judicial notice" of the facts or opinions testified to. The




   8 Appellant refers to the test, now commonly known as a Daubert hearing, set forth
in the case of Daubert v . Merrell Dow Pharmaceuticals, Inc, 509 U .S. 579 (1993), which
requires a trial court to test the relevance and reliability of expert testimony by
applying various factors to the testimony offered .
Commonwealth also asserts that the trial record was more than sufficient to

support the relevance and reliability of the testimony offered.

      While Appellant's objections to the testimony of Stevens and Atkins were

sufficient to preserve this issue on appeal, Appellant did not specifically ask the

court to conduct a Daubert hearing. We are not inclined to find that a court

must conduct a formal Daubert hearing sua sponte each time that the

admissibility of expert testimony is challenged . See Mondie v. Commonwealth,

158 S.W.3d 203, 212 (Ky. 2005) ; Tharp v. Commonwealth, 40 S.W.3d 356, 368

(Ky. 2000) . A trial judge has wide latitude in investigating and determining

reliability of evidence, Dixon v. Commonwealth, 149 S.W .3d 426, 430 (Ky.

2004), and the record need only be "complete enough to measure the proffered

testimony against the proper standards of reliability and relevance ."

Commonwealth v. Christie, 98 S.W .3d 485, 488 (Ky. 2002).

      While neither Stevens' nor Atkins' testimony addressed any complex

scientific theory or rule, it did edge just beyond that likely known by a

layperson and was therefore "expert" testimony.9 Thus, it is important to know

the content of the witnesses' testimony.

       Stevens walked the jury through the administration of the rape kit. She

explained that they swabbed the mouth because S .R . "said that she was

assaulted in her mouth ." She very specifically described how they swabbed

S .R.'s thigh, mouth, and vagina, and how and why she plucked hairs from


  9 Most people are not aware of the function of enzymes in the mouth, or that the
mouth and rectum are harsh environments for semen.
S .R .'s head . After she testified that she had been trained and educated about

the natural processes of the body, Stevens testified:

             A.   People are constantly making new saliva and
            secreting digestive enzymes to fight bacteria and germs
            in the mouth.

            Q.     What does a body do to get rid of it?

                   You swallow to get rid of it . t o

            Q.    If a person ejaculates into another's mouth and
            that person spits it out, and they come to the hospital,
            based on what you talked about, the saliva and the
            body's processes, would you always expect to find
            semen or some evidence of the ejaculate there in the
            mouth?

            A.


      The prosecution established that Stevens was qualified to discuss the

"processes of the body" insofar as she testified - that the mouth produces

saliva and enzymes. She was a registered nurse of 23 years. In his objection,

Appellant argued that this testimony was "outside of her expertise" because

she would not know "how long something should be there" (in the mouth) or

"whether someone's actions in spitting would affect anything."

      However, Stevens did not opine as to how long semen might stay in the

mouth given the processes of the saliva and enzymes produced there, nor did

she discuss the effects of spitting on its retention. She said this is a process

inside of the mouth and agreed that given that process, in combination with


   to Next, the prosecutor asked her if "people spit" and she answered "Yes." Although
objected to, this is in no way "expert" testimony .
the act of spitting, a nurse would not always expect to find semen in the

mouth . As the trial record supported these brief, somewhat innocuous,

opinions, Stevens' education, training, and experience were basis enough for

the trial court to admit this testimony.

      As for Atkins, Appellant objected "[s]peculation," "no training specific to

this," when the prosecution asked:

             Q.   What may be reasons why here wouldn't be
             semen on oral swabs from the mouth?

            A.     Both oral and mouth cavities are harsh
            environments for semen. Sometimes we find sperm
            there, sometimes we don't.


Notably, Atkins' "opinion" on this subject lasted twenty-seven seconds. Before

that, she very carefully explained KSP's procedure for processing swabs as

evidence, how it reports DNA differently than Orchid Cellmark, and fully

explained her duties as a lab specialist . She testified that she had been a

specialist with the KSP crime lab for ten years, that she had a Bachelor of

Science Degree from UK, and that she had trained with the FBI at Quantico .

      Given Atkins' training and experience, we hold that the trial judge did

not err by allowing this testimony. The judge said on the record that she would

allow the women to answer "basic questions," and that is what she allowed -

their answers being supported by their training, education and experience, all

of which were uncontested, and on the record. Thus, the trial court did not

abuse its discretion by allowing the testimony of Stevens and Atkins .
                                III. CONCLUSION

      Therefore, for the reasons stated above, Appellant's conviction for rape

and sodomy, and the judgment ordering his sentence, are affirmed.

      All sitting. Minton, C .J . ; Abramson, Cunningham, Schroder, and Scott,

ii., concur. Noble, J ., concurs, in part, and dissents, in part by separate

opinion in which Venters, J ., joins.

      NOBLE, J., CONCURRING, IN PART, AND DISSENTING, IN PART:

Respectfully, I dissent. A sentence to a term of years cannot be run

consecutively to a life sentence, even if the term of years results from a

subsequent conviction . The sentencing statute, KRS 532 .110(1)(c), clearly

states that "[ijn no event shall the aggregate of consecutive indeterminate terms

exceed seventy (70) years," (emphasis added), which would bar running a term

of years consecutive to a life sentence since a life sentence is presumed to be

longer than any term of years . That the sentence resulted from different trials

makes no difference, as KRS 532 .110(1) obviously contemplates that its rule

will apply to such scenarios when it refers to "a crime for which a previous

sentence of probation or conditional discharge has been revoked."

      The majority is no doubt concerned that the inability to run such

additional sentences consecutively undermines the deterrent effect of the

conviction and is thus unlikely to prevent the commission of additional crimes.

This is incorrect for a number of reasons.
      First, an additional sentence does not affect parole eligibility. Under our

statutes, parole eligibility maxes out at twenty years. See Hughes v.

Commonwealth, 87 S .W.3d 850, 855-56 (Ky. 2002) .. Nor would it negatively

affect actual parole decisions. One might argue that the additional,

consecutive sentence would send a message to the parole board, but the

additional conviction itself would do just that.

      Second, adding the term of years after the life sentence clearly does not

(and indeed cannot) affect service of the sentence because you can't serve

beyond the expiration of life. Nor can you serve out a life sentence, so there is

no chance that the additional term of years could be a buffer to protect against

premature release of a violent offender .

      So what then is the point of running the sentences consecutively? There

is no merit in imposing a sentence that defies common sense (life plus a term

of years requires service from the grave), and nothing in our statutes can be

construed to allow it. I would vacate the sentence and order the subsequent

sentence to run concurrently with the previous life sentence .

      Venters, J ., joins.
COUNSEL FOR APPELLANT:


Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Coleman Shackelford
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
