SIMPSON (GEORGE) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: AUGUST 5, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000260-MR
GEORGE SIMPSON
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 08-CR-00248
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
KELLER, JUDGE: A jury found George Simpson (Simpson) guilty of Sexual
Abuse in the First Degree. On appeal, Simpson argues that the prosecution
withheld discoverable information and, after conducting an in camera review of
1
Senior Judge Ann O'Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
that information, the trial court should have set aside the jury's verdict and granted
a new trial. Having reviewed the record, we affirm.
FACTS
In October 2008, T.C., her mother, Melissa Shaw (Shaw), and her
brother attended a party at the Simpson's farm. Because Shaw had too much to
drink, she decided to spend the night with her children at the Simpson's house.
T.C. slept in a bedroom with the Simpson's daughter; Shaw and her son slept in
another bedroom; and the Simpsons slept in their bedroom with their son.
T.C. alleged that, during the night, Simpson came into the bedroom
and lay beside her. He then rubbed her back, touched her legs, and tried to touch
her "between her legs." Simpson admitted that he went into the bedroom during
the night, but stated that he did so to comfort his daughter, who was having a
nightmare. He stated that he might have inadvertently touched T.C. but denied
touching her in any inappropriate way.
Based on T.C.'s allegations, the grand jury indicted Simpson on one
count of Sexual Abuse, First Degree, involving a minor. Simpson subsequently
filed a "Motion for Bill of Particulars" asking the court to direct the
Commonwealth to provide, in pertinent part, "[a]ny psychological evaluations
performed by mental health professionals with [T.C.] by any agency of the
Commonwealth" and "[a]ny conversations or statements made by [T.C.] to any
private mental health professional or social worker . . . ." Simpson did not notice
the motion for a hearing. Furthermore, despite a number of court appearances
-2-
before trial, Simpson took no other steps to obtain the requested order from the
trial court.
On direct examination during trial, T.C. testified consistent with her
allegations. Additionally, T.C. and her mother both testified that T.C. underwent
counseling following this incident. Simpson did not object, did not renew his
motion asking the Commonwealth to produce the counseling records, or otherwise
ask the court for relief. Following presentation of Simpson's evidence, the
Commonwealth recalled T.C., who again testified that she underwent counseling.
At that point, Simpson objected, noting that the Commonwealth had not produced
the records he had requested in his motion. The Commonwealth stated that it did
not have the records, had not reviewed the records, and did not know where T.C.
had undergone counseling until T.C. testified at trial. The court noted that
Simpson had not sought an order requiring the Commonwealth to obtain the
records, had not filed a motion to compel, and had not objected to the testimony on
direct examination. Therefore, the court overruled Simpson's objection.
As noted above, the jury ultimately found Simpson guilty, and
Simpson timely filed a motion for a new trial. In that motion, Simpson argued, in
pertinent part, that he was "denied access to potential exculpatory evidence when
counseling records of the child were not disclosed . . . after being requested in a
Bill of Particulars filed with the Court." The court ultimately ordered production
of those records, permitted the parties to review them, and conducted an in camera
review. Following that review, the court denied Simpson's motion because
-3-
Simpson had not appropriately pursued production of the records before trial.
Furthermore, the court noted the records indicated that, while T.C. had received
counseling before this incident, that counseling occurred five or six years earlier
and was "stale." In addition to being stale, the court noted that the information in
the records was not particularly relevant and, for the most part, would not have
been admissible. Therefore, the court denied Simpson's motion for a new trial.
This appeal followed.
STANDARD OF REVIEW
"Upon motion of a defendant, the court may grant a new trial for any
cause which prevented the defendant from having a fair trial, or if required in the
interest of justice." Kentucky Rules of Criminal Procedure (RCr) 10.02. We
review a trial court's denial of a motion for a new trial for abuse of discretion.
Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003).
ANALYSIS
On appeal, Simpson argues that the trial court erred when it denied his
motion for a new trial because of the Commonwealth's failure to provide records
related to T.C.'s counseling. In support of that argument, Simpson notes that the
Commonwealth failed to respond to his motion for a bill of particulars.
Furthermore, he argues that, if he had been supplied with the requested records, he
would have been better able to impeach T.C.'s credibility. Simpson noted in his
brief a number of references to T.C.'s lack of credibility in the counseling records.
-4-
The Commonwealth argues that it had no obligation to provide the
requested records because Simpson failed to obtain an order from the trial court.
Furthermore, the Commonwealth argues that the documents, even if provided,
would not have been beneficial to Simpson's case. For the following reasons, we
agree with the Commonwealth.
We first note that a defendant may seek a bill of particulars at any
time and that the court "for cause shall direct the filing of a bill of particulars."
RCr 6.22. The purpose of a bill of particulars is to a furnish "the accused with the
details supporting the charged offense." Combs v. Commonwealth, 198 S.W.3d
574, 580 (Ky. 2006) (emphasis in original). The records at issue herein would not
have provided any details regarding the charged offense but rather would have
provided information about the victim. Thus, Simpson's avenue for obtaining
those records would have been through discovery, as provided in RCr VII, not
through a bill of particulars.
Furthermore, as noted by the Commonwealth, "[i]t is the duty of one
who moves the trial court for relief to insist upon a ruling, and a failure to do so is
regarded as a waiver." Dillard v. Commonwealth, 995 S.W.2d 366, 371 (Ky.
1999). Simpson did not schedule or request a hearing for his motion, did not
follow-up with the Commonwealth when he did not receive a response to his
motion, and did not follow-up with the court when he did not receive an order
addressing his motion. Furthermore, Simpson did not raise any issue regarding the
counseling records the first time T.C. and her mother mentioned that T.C. had been
-5-
to counseling. In fact, Simpson did not raise any issue with regard to the
counseling records until T.C. and her mother testified on re-direct at the end of the
trial. Therefore, Simpson waived any right he had to complain about any failure
by the Commonwealth to produce the requested records.
We note Simpson's argument that, regardless of any motions he may
have made, the Commonwealth was required to provide the requested records
under the trial court's general discovery order. A copy of that order is not in the
record and Simpson did not attach a copy to his brief. However, Simpson does cite
to the order in his brief. Assuming that Simpson's recitation of the order is correct,
the Commonwealth is only required to provide to a criminal defendant documents
and/or statements that the Commonwealth has. It is not required to search for and
obtain documents. The Commonwealth has steadfastly maintained that it did not
have the requested documents and that it had no knowledge concerning the
specifics of T.C.'s counseling until trial. Therefore, Simpson's argument that the
Commonwealth violated the trial court's standing discovery order is without merit.
Finally, we note that, even if Simpson had not waived this issue, we
would be constrained to affirm the trial court on the merits. As noted above,
Simpson, the Commonwealth, and the trial court reviewed the requested
counseling records. The trial court determined that the majority of those records
would not have been admissible because they reflected treatment that was five to
six years old. The only record that would have been admissible referred to T.C.'s
propensity to "act out" in order to get her father's attention. However, the trial
-6-
court determined that record, even if admitted, would not have had any impact on
the result at trial.
We do not have copies of T.C.'s counseling records; therefore, we
must rely on the summaries of those records by the parties and the trial court.
Based on those summaries, we cannot say that the trial court abused its discretion
in determining that the majority of the records would not have been admissible.
Furthermore, we discern no abuse of discretion in the trial court's determination
that the only admissible record would not have had any impact on the result.
-7-
CONCLUSION
For the foregoing reasons, we discern no error and affirm the trial
court's denial of Simpson's motion for a new trial.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward E. Dove
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.