W.D.B. (A CHILD UNDER EIGHTEEN) V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : NOVEMBER 21, 2007
TO BE PUBLISHED
';VUyrrMr
Courf of ~R#
'
2006-SC-000937-DG
,1S _a0-o _1
W .D .B. (A CHILD UNDER EIGHTEEN)
_k
_
.
.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2005-CA-001215
HENDERSON CIRCUIT COURT NO. 04-XX-00006
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE MINTON
AFFIRMING
Primarily at issue in this case is whether the common law presumption of
youthful incapacity for criminal activity, the so-called infancy defense, survived
enactment of the Kentucky Unified Juvenile Code, Kentucky Revised Statutes (KRS)
Chapters 600 to 645 . Because our juvenile code is comprehensive in scope and
rehabilitative in purpose, we conclude that its enactment extinguished the infancy
defense in proceedings under the juvenile code. And we affirm the Court of Appeals on
this issue.
In addition to the applicability of the infancy defense, W.D .B. presents three
additional issues for our review. They are: (1) whether the trial court erred in finding
despite uncontradicted expert testimony to the contrary--that W .D .B. had the capacity
to commit the offense of first-degree sexual abuse; (2) whether the trial court erred in
concluding-based solely on the uncorroborated confession of W .D .B.-that W .D .B.
touched the victim; and (3) whether the trial court erred in declining to hold a Daubert'
hearing to determine the reliability of the methods used by the Commonwealth to
evaluate W.D.B . for treatment as a sexual offender . We affirm on these three issues
because we agree with the Court of Appeals that the trial court did not err.
I . FACTS AND PROCEDURAL HISTORY.
The juvenile session of the district court determined after an adjudication hearing
that W.D.B. had committed the offense of first-degree sexual abuse, an act that if
committed by an adult would be a felony. At the time W .D .B. committed the act against
the then three-year-old victim, W .D .B. was twelve years old . Specifically, W.D.B.
admitted that he was playing at a neighbor's pool with another boy, who was eight years
old, and the three-year-old victim. W.D.B. went behind a shed with the two little boys
and told the three-year-old to pull his shorts down, which the little boy did. When the
three-year-old pulled his shorts down, W.D.B. touched the boy's penis .
In making its determination, the district court held as a matter of law that the
common law presumption that a child is without criminal capacity was not applicable in
proceedings under the juvenile code. As a result of the adjudication, the district court
committed W.D.B . to the Department of Juvenile Justice as a juvenile sexual offender
under KRS 635 .510 .
On appeal to the circuit court, the circuit court affirmed the decision of the district
court on all issues as described in the introduction of this opinion . The Court of
'
Daubert v. Merrell Dow Pharmaceuticals . Inc. , 509 U .S. 579, 113 S .Ct. 2786, 125 L.Ed.2d
469(1993) .
Appeals granted discretionary review and, likewise, affirmed on all issues. We granted
discretionary review.
II . RESOLUTION AND DISCUSSION OF THE ISSUES.
A. The Enactment of the Kentucky Unified Juvenile Code Extinguished the
Common Law Presump tion that a Child is Without Criminal Capacity .
Since the enactment of the Kentucky Unified Juvenile Code, the common law
presumption that a child lacks criminal capacity is no longer necessary for two reasons.
First, a delinquency adjudication in juvenile court is not a criminal conviction . Second,
allowing the presumption would frustrate the clinical and rehabilitative purposes of the
juvenile code . The resolution of the common law presumption issue is one of statutory
interpretation and application . So it is purely a question of law and subject to de novo
review by this Court . 2
The presumption of youthful incapacity for crime arose in Kentucky law as early
as 1877. 3 The presumption holds that "[t]he arbitrary age below which a child is
incapable of committing crime is seven. Between the ages of seven and fourteen, a
4
presumption of incapacity lies, which, however, may be overcome by evidence ." This
presumption is often referred to as the "infancy defense."
Before Kentucky's creation of the juvenile court in 1906, the common law
presumption was invaluable because our criminal law did not make distinction for a
child . Every person, regardless of age, went to the adult criminal court because there
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W .2d 488,
490 (Ky. 1998).
Willet v. Commonwealth , 76 Ky. 230 (Ky. 1877) ; see Heilman v. Commonwealth , 1 S.W. 731
(Ky. 1886).
Thomas v. Commonwealth, 189 S.W.2d 686, 687 (Ky. 1945).
was no juvenile court . But juvenile court legislation forever changed the focus from
punishing all persons in criminal court to providing care, treatment, correction, and
control for children in a juvenile court.5 Since 1906, juvenile court legislation has
evolved from the original, ten-section statute to a comprehensive and elaborate juvenile
code that encompasses ten statutory chapters, KRS Chapters 600 to 645, having the
following express legislative purposes:
(d) Any child brought before the court -under KRS Chapters 600 to 645
shall have a right to treatment reasonably calculated to bring about an
improvement of his or her condition and, to the extent possible, have
that treatment administered in the county of residence of the custodial
parent or parents or in the nearest available county;
(e) KRS Chapter 635 shall be interpreted to promote the best interests of
the child through providing treatment and sanctions to reduce
recidivism and assist in making the child a productive citizen by
advancing the principles of personal responsibility, accountability, and
reformation, while maintaining public safety, and seeking restitution
and reparation ;
(f) KRS Chapter 640 shall be interpreted to promote public safety and the
concept that every child be held accountable for his or her conduct
through the use of restitution, reparation, and sanctions, in an effort to
rehabilitate delinquent youth ; and
(g) It shall further be the policy of this Commonwealth to provide judicial
procedures in which rights and interests of all parties, including the
parents and victims, are recognized and all parties are assured prompt
and fair hearings . Unless otherwise provided, such protections belong
to the child individually and may not be waived by any other party.
Nowhere in this comprehensive legislation is a presumption that a child
lacks criminal capacity, the reasons being that (1) a delinquency adjudication in
juvenile court is not a criminal conviction7 and (2) allowing the presumption would
Ky. St. § 331 e, Russell's St . § 3259 (March 21, 1906).
KRS 600.010.
KRS 635 .040 .
frustrate the clinical and rehabilitative purposes of the juvenile code. In short, we
conclude that the juvenile code extinguished the common law presumption .8
W .D .B. argues that the common law presumption arose to protect children from
the assumption that all criminal acts are accompanied by a criminal mental state. In
other words, W.D.B. believes that a court's failure to allow the presumption results in
children being adjudicated guilty of crimes of which they are innocent . But this is a
policy argument . And
[t]he establishment of public policy is granted to the legislature alone. It is
beyond the power of a court to vitiate an act of the legislature on the
grounds that public policy promulgated therein is contrary to what the
court considers to be in the public interest. It is the prerogative of the
legislature to declare that acts constitute a violation of public policy.
As stated above, the legislature enunciated the purposes of the juvenile code and
enacted comprehensive legislation to carry into effect those purposes. The legislature
did not codify the presumption, and this Court is without authority to write such a
presumption into the juvenile code on the grounds of public policy- 10
W .D.B . further contends that he should have been permitted to rely on the
infancy defense in the adjudication hearing, which would then have required the
Commonwealth to prove W.D .B .'s mental state . He insists that in the absence of the
s
9
10
See, e.g., In re Tyvonne, 558 A.2d 661, 666 (Conn . 1989) (holding that common law
presumption of incapacity had been displaced by state juvenile statutes in delinquency
proceedings against eight-year-old found delinquent in shooting a schoolmate) ; In Interest of
G.T., 597 A.2d 638, 642 (Pa .Super.Ct. 1991) (holding that common law presumption of
incapacity had been supplanted by state juvenile code in delinquency proceedings against
thirteen-year-old found delinquent in drug offense); In re Michael, 423 A.2d 1180, 1183 (R.1 .
1981) (reasoning that paramount right in juvenile proceeding that every element of offense
giving rise to delinquency or waywardness charge be proved beyond a reasonable doubt and
holding that finding of capacity was unnecessary in a juvenile proceeding against twelveyear-old adjudicated wayward in sexual assault against five-year-old girl).
Commonwealth ex rel . Cowan v. Wilkinson, 828 S .W .2d 610, 614 (Ky. 1992).
presumption, the trial court was allowed to assume that W .D .B .'s cognizance of the
criminal nature of his conduct was no different from that of a mature adult.
This argument, however, is premised on mental state or mens rea as opposed to
capacity . Capacity, in terms of the presumption at issue, refers not to criminal intent,
but to the ability to comprehend right from wrong. The trial court's ruling that the
presumption was inapplicable in no way relieved the Commonwealth of its burden of
proof beyond a reasonable doubt of the requisite elements of the offense."
As we see it, the crux of W.D .B.'s challenge in this appeal is that in light of the
expert testimony on W.D.B.'s mental health, the Commonwealth did not establish
beyond a reasonable doubt every fact necessary to constitute the offense of first
degree sexual abuse. But on this challenge-as we will discuss in later sections of this
opinion-we conclude that it was not clearly unreasonable for the trial court to find
W.D.B. guilty of the offense.
Finally on this issue, we address W .D.B.'s reliance on Davis v. Commonwealth,
a more recent Kentucky case that cites to Thomas. 13 Davis has no application to this
case . Davis involved a challenge to a criminal conviction for wanton murder and first
degree criminal abuse . It was not an adjudication under the juvenile code, and the
presumption was not dispositive of any issue in the case. 14
12
13
14
KRS 610.080(2) ; In re Winship , 397 U .S. 358, 365, 90 S.Ct. 1068, 25 L.Ed .2d 368 (1970)
(holding that juveniles are constitutionally entitled to proof beyond reasonable doubt when
they are charged with an act which would constitute a crime if committed by an adult) .
967 S.W .2d 574, 581 (Ky. 1998) .
189 S.W .2d at 687.
Id.
12
B. Based on the Expert Testimony, the Trial Court Did Not Err in
Finding that W.D.B. Had the Capacity to Commit the Offense
of First-Degree Sexu al Abuse.
We begin our discussion of this issue with the various standards of review
implicated in juvenile proceedings. The adjudication hearing is conducted by the court
without a jury . 15 Accordingly, under Kentucky Rules of Civil Procedure (CR) 52.01,
"[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility of the witnesses." A
trial court's factual finding is not clearly erroneous if supported by substantial
evidence .
16
When a juvenile challenges the sufficiency of the evidence, because the
Commonwealth carries the same burden of proof as it does in an adult criminal case to
show that a juvenile committed an offense, we borrow from the criminal law and apply
the directed verdict standard of review." Thus, in the case of a juvenile adjudication, a
reviewing court must draw all fair and reasonable inferences from the evidence in favor
of the Commonwealth and determine if, under the evidence as a whole, it would be
clearly unreasonable for the trial court to find guilt, only then the juvenile is entitled to a
directed verdict of acquittal . 18
15
16
KRS 610.070(1) .
Owens-Coming Fiberglas Corp. v. Golightlv , 976 S.W.2d 409, 414 (Ky. 1998) .
17
18
See In re J.S . , 35 S.W .3d 287, 292 (Tex.App. 2001) ("Given the fact that the State carries
the same burden, of proof in a juvenile proceeding as it does in an adult criminal case to
show that the juvenile committed a penal offense and the quasi-criminal aspect inherent to
juvenile proceedings, it seems more appropriate to apply the more stringent criminal
standard of review to challenges to the legal sufficiency of the evidence to establish the
commission of the offense in the adjudication phase .")
Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991); Commonwealth v. Sawhill ,
660 S .W.2d 3,4 (Ky. 1983) .
In this case, the trial court made a factual finding at the end of the adjudication
hearing that W.D.B. had criminal capacity at the time the crime occurred . W.D.B .
contends that it was clearly unreasonable in light of the uncontroverted testimony of
Dr. Michael A. Nicholas to find against him on this question . While Dr. Nicholas's
testimony may have been uncontroverted by another mental health expert, we agree
with the courts below that it was inconclusive on the issue of W .D.B.'s criminal capacity
and refuted by the other evidence .
Dr. Nicholas testified that he is in private practice in clinical psychology with a
specialty in neuropsychology. He evaluated W.D.B. after the incident involving the
three boys . In reviewing W .D.B.'s psychiatric records, Dr. Nicholas learned that when
W .D.B. was in kindergarten, an older child forced him to pull his pants down and then
touched his private parts. Dr. Nicholas stated that he agreed with the recent diagnosis
from the River Valley Psychiatric Hospital that W.D.B . had bipolar disorder with mixed
features, which is a very serious mental health issue . And because W.D.B . had this
serious mental health issue and other severe mental health issues, Dr. Nicholas opined
that W.D .B . most probably did not have the capacity to distinguish right from wrong at
the time he allegedly committed the act .
On further direct examination by W.D.B .'s counsel, Dr. Nicholas explained that
failure to take his prescribed medications, or an unstructured environment, or failure to
receive therapy could adversely impact W .D.B.'s mental health and trigger an acute
manic episode. During such an episode, W.D .B .'s capacity to know right from wrong
would be diminished . But when asked, "Did he have the capacity or not," Dr. Nicholas
would only go so far as to say:
Putting it in black and white terms like that, you know, I have to fall back to
what I said in my report. He may have not had the capacity . Because I
think short of direct observation, there is no evaluator that is going to tell
you he did or he didn't . You know, short of that, that's unfortunately-I'm
a psychologist, not an attorney or a member of the court. I can't say that,
you know, what I'm saying is it raises the question in my professional
opinion with a severe mental disorder with four psychiatric hospitalizations
that we know about. You know, that we know about. We have an
individual with diminished capacity . The extent of the diminished capacity
at the time that this act occurred, I wasn't there . You know, I don't know.
I don't know if he was having a good day or a bad day. You know, I don't
know if he had been taking his meds for at least a week before or as, as
prescribed or he had been, been all over the place . I don't know if he
received therapy or any kind of group intervention . I don't know any, any
of that information . I do know that he has a diminished capacity . To the
extent, 1 don't know. And I don't think any evaluator can tell you .
Dr. Nicholas agreed with the court that having information regarding W.D .B.'s
management of his mental health issues would have been helpful to his determination
of capacity .
In addition to his testimony at the adjudication hearing, Dr. Nicholas prepared a
written report, which he referenced at the hearing . In a similar vein, Dr. Nicholas
concludes in his report:
[W.D.B.'s] capacity for knowing the wrongfulness of his actions is difficult
to assess given the fluctuating mood stability that appears is a part of his
history . It is possible that in a manic or hypomanic episode [W .D .B.] may
not have been capable of the [judgment] to avoid committing [the act] that
precipitated his arrest. His adherence to his treatment regime may have
also had an effect on his capacity to appreciate the wrongfulness of his
act.
The trial court withheld its determination on capacity until it heard all the
evidence in the case . That evidence included the testimony of a police officer and the
father of the three-year-old . The eight-year-old boy, J.L ., began to testify at the hearing
but could not complete his testimony from the point that the three boys went behind the
shed because he was crying and too upset to talk.
The police officer testified that W.D.B . initially denied that he was at the threeyear-old's home . But he eventually admitted to the officer that he told the three-yearold to undo his pants and that he touched the little boy's penis . The officer conceded
that although W .D .B. was calm when he admitted the touching, when he initially arrived
at W .D .B.'s home, W .D .B. was running around in circles and cursing .
The three-year-old's father testified that his son, J.L., and W.D .B. were playing at
his home. His son and J.L. were playing in the pool, and W .D .B. was swinging . W .D.B .
left the yard for about ten minutes, but then he came back. The father observed the
three boys go behind a small building in the back yard . After about two. minutes, the
father went to see what the boys were looking at behind the building. When he reached
the boys, he saw that his son had his trunks pulled down like he was going to the
bathroom. And he noticed that W .D.B. had an erection under his blue, mesh shorts .
When the father came around the building, W.D.B. panicked and told the father to
leave him alone . According to the father, W .D.B . said that the boys came back there
while he was using the bathroom. W.D.B . then started cursing . The father told W.D.B .
to go with him to talk to W.D.B .'s mother, but W.D.B. jumped on his bicycle and left.
Weighing Dr. Nicholas's opinion against W.D.B.'s admission to the police officer
and the events surrounding the act as observed by the three-year-old's father, we
conclude that it was not clearly unreasonable to find guilt. Moreover, the trial court's
finding that W.D.B . had the capacity to discern right from wrong is evidenced by: his
seclusion of the two boys behind the shed, the story he told the three-year-old's father,
his becoming upset and having an episode after the act occurred-not before-and his
eventually leaving the scene . This evidence is substantial . So the trial court's finding is
not clearly erroneous .
C . The Trial Court Did Not Rely Solely on W.D .B .'s Confession
in_ Concluding that the Commonwealth Had Established
Beyond a Reasonable Doubt that W.D .B. Had Committed
First-Degree Sexual Abuse .
Under Kentucky Rules of Criminal Procedure (RCr) 9.60, "[a] confession of a
defendant, unless made in open court, will not warrant a conviction unless
accompanied by other proof that such an offense was committed ." "The corroborative
evidence required addresses itself as to whether the crime charged was committed
[corpus delicti] and not as to whether the particular defendant committed it." 19
"Although proof beyond a reasonable doubt is necessary to convict of a criminal
offense, the proof required by RCr 9.60 to corroborate an extrajudicial confession need
not be such that, independent of the confession, would establish the corpus delicti or
Appellant's guilt beyond a reasonable doubt[ .], 20 Proof of the corpus delicti, i.e., that
W.D .B. actually committed the offense of first-degree sexual abuse, may be established
by considering the confession, as well as the corroborating evidence. 21 Thus, even if
the circumstantial evidence in a case standing alone would not suffice to prove guilt
beyond a reasonable doubt, it can suffice to corroborate an out-of-court confession . 22
19
20
21
22
Slaughter v. Commonwealth , 744 S .W.2d 407, 410 (Ky. 1987); see Wilson v.
Commonwealth , 476 S.W.2d 622, 624 (Ky. 1971) ("The only corroboration required for a
confession not made in open court is proof, independent of the confession, that the offense
was actually committed . Once the commission of the offense is established, the confession
alone is sufficient proof that the confessor committed the crime.").
Blades v. Commonwealth , 957 S.W.2d 246,250 (Ky. 1997).
Id.
Id.
And the circumstantial evidence and the confession considered together can constitute
sufficient proof to take the case to the jury, or in this case, submit it to the trial court . 23
W.D.B . argues that the preceding holding in Blades is dictum and, therefore, not
binding in this case. We disagree . This part of the Blades opinion was the critical step
in deciding the issue . In Blades, a jury convicted Blades of driving under the influence ;
however, no evidence placed Blades in the driver's seat of the car other than Blades
himself in an out-of-court confession, which he recanted at trial . This Court upheld the
conviction based on the circumstantial evidence that (1) witnesses observed Blades
staggering in the roadway; (2) troopers located Blades walking down the roadway;
(3) Blades failed to pass field sobriety tests, as well as a breathalyzer ; and (4) Blades's
vehicle was found abandoned in the center of the roadway with the engine still running .
This evidence corroborated his out-of-court admission to the troopers that he had
driven the vehicle to its location .
Turning to the evidence in this case, in articulating its decision that W .D.B.
committed the offense of first-degree sexual abuse, the trial court stated that it was
relying on W .D.B .'s confession and the father's testimony . The father testified that he
walked around the shed and found his son with his pants down in W .D .B.'s company
and observed that W .D .B. had an erection . So the trial court relied on the out-of-court
confession and other proof, albeit circumstantial.
This is not an offense that will always result in physical evidence-such as the
corpse of a murdered personthat the crime occurred. The offense is any touching of
the sexual parts of a person, who, in this case, was incapable of consent because he
23
Id.
12
was less than twelve years old, done for the purpose of satisfying the sexual desire of
W.D.B . The Commonwealth's proof corroborated the circumstances of the crime to
which W.D.B . confessed: the time, the persons present, the place, the three-year-old
victim with his swim trunks down and penis exposed, and W.D.B. with an erection . Just
as in Blades, no competent witness testified that W.D .B. actually touched the victim .
But there was certainly other compelling proof that such an offense was committed . 25
There was no error.
D . The Trial Court Did Not Err in Declining to Hold a Daubert
Hearing to Determine the Reliability of the Methods Used
By the Commonwealth to Evaluate W.D .B. for Treatment
as a Sexual Offender .
Upon review, we conclude that the trial court heard extensive evidence relating
to W.D.B.'s sexual offender assessment under KRS 635.510 before deciding the
appropriate placement and treatment for W.D .B. Two qualified professionals who
evaluated W .D.B . opined that based on their assessments, W.D.B . presented a risk
(one said moderate and one said high) to re-offend and recommended that W.D.B.
receive treatment in
a sex offender treatment program .
Thus, we conclude that the trial
court sufficiently performed its gatekeeper function and did not err in declining to hold a
Daubert hearing to determine the reliability and validity of the instruments utilized in part
by the qualified professionals before declaring that W.D.B. was a sexual offender .
Under KRS 635.510,
(2) (a) A child, less than thirteen (13) years of age, maybe declared a
juvenile sexual offender if the child has been adjudicated guilty of
an offense listed in KRS 635.505(2) .
24
KRS 510.110 and KRS 510 .010(7) (defining sexual contact) .
25
RCr 9.60.
13
(3)
Upon final adjudication by the juvenile court under subsection (2) of
this section, the juvenile court judge shall order a juvenile sexual
offender assessment to be conducted on the child by the
Department of Juvenile Justice treatment program or by a qualified
professional approved by the program which shall recommend
whether the child be declared a sexual offender and receive sexual
offender treatment. Upon receipt of the findings of the
assessment, the juvenile court judge shall determine whether the
child shall be declared a juvenile sexual offender, and, if so, shall
initiate a referral to the Department of Juvenile Justice treatment
program for treatment.
KRS 635.505(2)(a) includes a felony under KRS Chapter 510; and W.D.B. had
been adjudicated guilty of first-degree sexual abuse, a felony, under KRS 510 .110.
As further defined in KRS 635 .505(3),
[a] 'juvenile sexual offender assessment' means an assessment of the
child's adolescent social development, medical history, educational
history, legal history, family history, substance abuse history, sexual
history, treatment history, and recent behaviors, which shall be prepared
in order to assist the courts in determining whether the child should be
declared a juvenile sexual offender, and to provide information regarding
the risk for reoffending and recommendations for treatment.
In W .D .B.'s case, Susan Mead, who holds a master's degree in social work and
who is a juvenile sex offender certified counselor with the Department of Juvenile
Justice (DJJ), evaluated W.D .B . and prepared a psychosexual evaluation . The purpose
of the evaluation was to provide risk assessment, treatment, and placement
recommendations to the trial court. To prepare her assessment, Ms. Mead utilized the
following tests to evaluate W.D .B. : the Juvenile Sex Offender Assessment Protocol-II
(J-SOAP-II) and the Estimate of Risk of Adolescent Sexual Offense Recidivism
(ERASOR) . She also interviewed W.D.B . and his mother ; and she reviewed medical
records, police records, and reports from a former teacher of W.D.B .'s.
Based on the assessment instruments, Ms. Mead reported that W.D .B. could be
considered overall a high risk to re-offend sexually. She made the following
recommendations to the trial court: W .D.B . should be committed to DJJ as a sexual
offender, he should be placed into a residential facility that provides a sexual offender
treatment program to address his sexual offending behavior and allow him to develop
the skills necessary to control his sexual urges, he should not have any unsupervised
contact with children under the age of consent, and he should be monitored for further
psychiatric symptoms .
In W.D.B .'s disposition hearing, Ms. Mead testified as to her evaluation and the
instruments she used . She stated that adolescent sexual offense recidivism is a very
recent field of study . In her belief and experience, the J-SOAP-II and ERASOR
instruments are the most promising in the field; although, she readily admitted that
there is no assessment tool at this time that is considered empirically valid for risk
assessment .
W.D.B.'s counsel cross-examined Ms. Mead at length as to the validity of the two
instruments and her methods in scoring and evaluating W.D.B .'s information . She
stated that the reliability (consistency of results) of the J-SOAP-II test was good, but the
validity (the test measures what it was intended to measure) was not as good because
it was not based on a high population . As to scoring the J-SOAP-II, Ms. Mead agreed
that the protocol manual for the test emphasized that two clinicians should score the
individual . Ms. Mead did not have another individual score W .D.B., but she did ask a
Ph.D. level psychologist to review and discuss W.D .B.'s scores with her.
After the disposition hearing, W .D .B. requested a Daubert hearing to determine
the reliability and validity of the contents and recommendations of Ms . Mead's report.
W.D.B . also requested that the trial court approve funds for a second expert evaluation .
Relying, in part, on Hvatt v. Commonwealth26 and noting the fact that this was not a jury
trial and it had the opportunity to assess the credibility of the witnesses, the trial court
denied the request for a Daubert hearing . The trial court did, however, approve the
motion for funds for a second expert evaluation.
Edward J . Connor, Psy.D., performed the second psychological/sex offender
evaluation . He reviewed W.D.B.'s ERASOR and J-SOAP-II evaluations as scored by
Ms. Mead. He noted five discrepancies between his interview with W.D .B. and the
ERASOR evaluation conducted by Ms. Mead . W.D .B.'s counsel cross-examined
Ms. Mead on these perceived discrepancies when she testified in the disposition
hearing. In Dr. Connor's opinion, a recalculation of the scores on both tests could lower
W.D.B .'s degree of risk of re-offending from a "high risk" to re-offend to a "moderate
risk" to re-offend . Dr. Connor concluded his evaluation by discussing W.D.B .'s mental
health issues, including bipolar disorder and a sleep disorder, and ways in which each
could lead to other episodes and behaviors . In addition, consistent with Ms. Mead's
assessment, he agreed that W.D.B. should not have any unsupervised contact with
children under the age of consent until his psychiatric disorders are clearly under
control and he is involved with a sex offender treatment program .
Shortly after receiving Dr. Connor's evaluation, the trial court declared under
KRS 635 .510 that W.D. B. was a sexual offender .
26
72 S.W.3d 566, 575 (Ky. 2002).
16
An actual Daubert hearing is not required when the evidence is utilized in a
dispositional, rather than an adjudicatory, context 27 Here, the trial court had already
adjudicated W.D.B . guilty of the offense of first-degree sexual abuse. DJJ used the
instruments to conduct a juvenile sexual offender assessment on W.D.B . as required by
KRS 635 .510. In turn, the trial court utilized the assessment to decide appropriate
treatment for W.D.B . Because it did not consider the assessment for adjudicatory
purposes, we believe that cross-examination regarding the reliability and validity of the
tests at issue was sufficient to protect W.D.B .'s due process rights . Moreover, although
Dr. Connor noted discrepancies between Ms. Mead's evaluation and his interviews, he
relied on the same instruments in his assessment .
The trial court reviewed all the evidence presented by both sides . And the trial
court followed the guidelines of KRS 635.510 . We find no error.
IV. CONCLUSION.
The Kentucky Unified Juvenile Code extinguished the common law presumption
that a child is without criminal capacity . Under the evidence as a whole in this case, we
conclude that it was not clearly unreasonable for the trial court to find guilt. W .D.B .'s
out-of-court confession was accompanied by other proof that such an offense was
committed . Finally, an actual Daubert hearing was not required in the disposition
context when the evaluator was subject to cross-examination, and W.D.B . had the
opportunity to refute the results of the sexual offender assessment .
27
See Douglas v. Commonwealth , 83 S .W.3d 462, 464 (Ky. 2001) (holding that sentencing
judge was not required to hold Daubert hearing before considering presentence report
containing results of tests that were administered to assess defendant's risk of recidivism) .
17
Accordingly, we affirm the Court of Appeals.
All sitting . Lambert, CJ ; Abramson, Cunningham, Noble, and Scott, JJ., concur.
Schroder, J., concurs in part and dissents in part by separate opinion .
COUNSEL FOR APPELLANT :
Timothy G . Arnold
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : NOVEMBER 21, 2007
TO BE PUBLISHED
uprrme Courf of ~ftrufurht
2006-SC-000937-DG
W.D .B., A CHILD UNDER EIGHTEEN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2005-CA-001215
HENDERSON CIRCUIT COURT NO . 04-XX-00006
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCHRODER
CONCURRING IN PART AND DISSENTING IN PART
I agree with the majority opinion in all respects except for its analysis of the
requirement for corroboration of a confession under RCr 9.60. I believe the majority is
mistaken as to the proper method of conducting an RCr 9.60 analysis .
"Out of extraordinary caution and because of concerns about the reliability of
confessions obtained by police behind closed doors, a requirement of corroboration for
confessions has been a staple of Kentucky criminal law for most if not all of the state's
history ." Robert G. Lawson, The Kentucky Evidence Law Handbook , § 11 .25[1 ] (4th ed .
2003). The corroboration requirement is set forth in RCr 9.60 : "A confession of a
defendant, unless made in open court, will not warrant a conviction unless accompanied
by other proof that such an offense was committed ."
The majority starts with the confession, and then is satisfied by finding that there
is some evidence that "corroborates" it.
This is not the approach Kentucky law requires .
In Slaughter v. Commonwealth, 744 S .W.2d 407 (Ky. 1987), this Court explained what
the "other proof" portion of RCr 9.60 entails :
The corroborative evidence required addresses itself as to
whether the crime charged was committed and not as to
whether the particular defendant committed it. Such proof,
very simply, must be independent of any out-of-court
confession, and must show that the charged crime was, in
fact, committed . Once such evidence is present, guilt of the
defendant may be proven by the evidence of the
confession(s). The rule, in its effect, requires that the corpus
delicti of the crime be proven by independent, corroborative
evidence .
Id. at 410 (citations omitted) . "Phrased in another way it may be said that the first
requirement of the Commonwealth in a criminal prosecution is to establish that a crime
has been committed . This cannot be established solely by an out-of-court confession ."
Dolan v. Commonwealth , 468 S .W.2d 277, 282 (Ky. 1971) . See also , Wilson v.
Commonwealth , 476 S.W.2d 622, 624 (Ky. 1971) ; Stewart v. Commonwealth , 561
S .W.2d 660 (Ky. 1977) .
But what amount of independent proof that a crime was committed is sufficient to
satisfy RCr 9.60? Slaughter instructs that the independent proof must show that the
statutory elements of the crime are present. 744 S .W.2d at 410. Blades v.
Commonwealth , 957 S .W.2d 246, 250 (Ky. 1997), held that the independent proof does
not have to establish the corpus delicti beyond a reasonable doubt, but by a lesser
standard, which Professor Lawson compares to a "preponderance of the evidence."
Lawson, supra, § 11 .25[2] . Only when the independent evidence establishes the
corpus delicti, albeit by this lesser standard, is RCr 9.60 satisfied . The majority skips
this preliminary analysis of the independent evidence .
2
The majority misapplies the phrase in Blades which states "proof of the corpus
delicti . . . may be established by considering the confession as well as the
corroborating evidence ." 957 S.W.2d at 250. This concept is taken from Lacey v .
Commonwealth , 251 Ky. 419, 65 S .W.2d 61 (1933), and refers to proving the corpus
delicti beyond a reasonable doubt to sustain a conviction - after the corroboration
requirement (now RCr 9.60) has been satisfied, and the confession admitted . Only if
sufficient independent evidence is shown, may the confession and independent
evidence be considered together by the trier of fact to find a defendant guilty (corpus
delicti plus identity beyond a reasonable doubt) .
Therefore, the question (skipped by the majority) we need to consider is, does
the independent proof show that the elements of first degree sexual abuse are present?
KRS 510 .110 provides, in relevant part:
(1) A person is guilty of sexual abuse in the first degree
when:
(b) He or she subjects another person to sexual contact
who is incapable of consent because he or she:
2. Is less than twelve (12) years old .
"Sexual contact' is defined in KRS 510.010(7) as "any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying the sexual desire of either
party.
The independent proof in this case is as follows. A three-year-old boy, an eightyear-old boy, and the twelve-year-old Appellant had been swimming and swinging in the
backyard of the three-year-old's house. The three-year-old's father noticed the three
boys had gone behind a shed. A few minutes later, he went to investigate . The threeyear-old had his pants down. The twelve-year-old Appellant was standing two or three
feet away, and the father believed he saw an erection in the Appellant's pants .
Appellant told the father to leave him alone and that the others had come back there
while he was using the bathroom . Appellant left on his bike. The father walked over to
the Appellant's parents' house, and the police were called. When questioned by a
police officer, Appellant ran around in circles, yelling and cursing .
The independent evidence in this case is circumstantial, and the corpus delicti
may be shown by circumstantial evidence. Blades, 957 S.W.2d at 250. However, the
circumstantial evidence must be more consistent with guilt than with innocence. Dolan,
468 S.W.2d at 282. In this case, I believe the evidence is as consistent with innocence
as with guilt. Accordingly, I do not believe RCr 9.60 was satisfied . The majority is
critical of the corroboration requirement in this case because sexual abuse cases may
not always result in physical evidence that it occurred . However, the law should not be
nullified through interpretation to achieve a desired result . Further, the protection
afforded by the corroboration requirement becomes particularly critical in a case such
as this one, when the confession is taken from a twelve-year-old child with a lower than
average IQ.
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.