RENDERED: DECEMBER 14, 2017 TO BE PUBLISHED 

# uiuprttttt filnurf nf**~tnfutk\!**
20l6-SC-000389-MR
LINDA RICHMOND



## v. ON APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEAN CHENAULTLOGUE, JUDGE NO. 14-CR-00523-002
COMMONWEALTH OF KENTUCKY

OPINION OF THE COURT BY JUSTICEVANMETER AFFIRMING APPELLANT

APPELLEE

LindaRichmond appeals as a matter ofright from her conviction byjury and a 70-year sentence arising from charges ofone count offirst-degree ·assault, 11 counts offirst-degree criminal abuse, and**on~** count ofsecond-

. degree assault stemming from the abuse ofher 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, JulioValladares, after Richmond tookJulio'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 offirstdegree 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 oftwentyyears. Richmond chose to prqceed to trial. ' During a five-day trial in April 2016, thejuryheard ofthe systemic abuse Valladares and Richmond inflicted upon N.V. designed to "break" N.V. ofher autism. Richmond andValladares lived together with N.V. and Richmond's teenage son. N.V. initially attended public school. However, after the school contactedValladares regarding red marks on N.V;'s legs, discovered while assistingthe child use the restroom, he initially asked that the school no longer assisther, 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 sitfor· hours writing lines in a "corrections" binder. The binder contained over 300 entries, mostly dealingwith "unfavorable" behavior and the punishments N.V. received for such behavior. Most ofthis behavior and punishment centered around,N.V.'s accidental or·untimelyurination 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 herup." 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 2floor. Textmessages betweenVallada_res and Richmond also referred to N.V. having feces applied to her face and made to ingest herurine or feces. Duringtrial, Valladares admitted that he and Richmond abused N.V., and, in fact, much ofthe abuse seemed crafted byRichmond; she even drafted
a routine to make sure Valladares stuckto the "schedule" ofabuse while she
was atwork. Other forms ofabuse 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 ofthis 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, atwhich 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 ideawhat could have caused the pressure sores, and that she had.never limited N.V.'s food intake. Butwhen confrortted with Valladares's statements and evidence contrary to her version ofevents, 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 thatValladares gave N.V. cold showers. 3After deliberatingfor a little over an hour; thejuryreturned a guilty verdictfor one count offirst-degree assault, one count ofsecond-degree assault, and 11 counts offirst-degree criminalabuse,1 with a recommended sentence to run consecutively for a total of90 years. In June 2016, the trial courtdenied Richmond's motion for a new trial and sentenced her to total of70 years. This appeal follows as a matter ofright. II. ANALYSIS. Richmond's appeal concerns the testimony ofN.V.'s current foster mother, Curry, on the fourth day oftrial. First, Richmond argues that Curry's testimonywas not relevantto the abuse that occurred months before, and thus should not have been admitted. Richmond objected to the relevancy ofCurry's testimony; therefore, we review the trial court'sruling for an abuse ofdiscretion. We "will not disturb the trial court's decision to admit evidence absent an abuse ofdiscretion." 

### 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, orunsupported by sound legal principles." 

### Goodyear Tire &

### RubberCo.


### 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. inAugust 2015 from another foster family, and that N.V. was ten

1 Two ofthe thirteen counts ofcriminal abuse were dismissed during the trial. 4years 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 ofentering 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 ofwriting 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 thatis ofconsequence to the determination ofthe action more probable or less probable than itwould be without the evidence." "Evidence which is not relevant is not admissible." KRE 402. "Although relevant, evidence may be excluded ifits probative value is substantially outweighed by

2 Kentucky Rules ofEvidence. 5the danger ofundue prejudice, confusion ofthe issues., or misleading thejury,
orby considerations ofundue delay, or needless presentation ofcumulative evidence." KRE 403. "KRE 403 allows for the exclusion ofevidence that may

. 

## . be unduly prejudicial. Evidence that appeals to thejury's sympathies, arouses its sense.ofhorror, provo.kes its instinetto punish, or otherwise may cause a juryto base its decision on something other than the established propositions in the case is unfairly prejudicial." 

### Butlerv. 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 ofN.V. in the hospital and horrific testimony from the child's own father. We note that the physical responses ofN.V. to certain situations so paramount to her abuse case, 

### e.g., the shower, eliminating her bowels, writingutensils, are especiallyrelevant to this case. Furthermore, Curry did nottestify about the abuse or its effect on N.V.; rather, she merely described the current state ofthe child's abilities and stressors. Given the weight ofthe evidence against Richmond, this testimony
was relevant and notundulyprejudicial. We find no abuse ofdiscretion with the trial court's admission ofCurry's testimony.

. . Richmond next argues the admission ofCurry's testimony constituted impropervictim impact evidence. This issue is unpreserved, and thus reviewed for palpable error. RCr3 10.26 dictates:

3 Kentucky Rules ofCrimii:ial Procedure. 6Apalpable errorwhich affects the substantialrights of a party may be considered bythe court on motion for a new trial orby an appellate court on appeal, even though insufficientlyraised or preserved for review, and appropriate reliefmaybe granted upon a determination thatmanifestinjustice has resulted from the error. "RCr 10.26 authorizes us to reverse the trial court onlyupon a finding of manifest injustice. This occurs when the error so seriously affected the fairness, integrity, or public reputation ofthe proceeding as to be shocking or jurisprudentiallyintolerable." 

### Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015) (internal quotations and citations omitted).

· This Courthas held itpermissible to introduce evidence during the guilt
. phase regarding background information aboutthe victim, includingphysical condition. 

### See,.e.g., Ernst

### v. Commonwealth, 160 S.W.3d 744, 763 (Ky. 2005)· (holding itpermissible for the victim's family to describe the elderlyvictim's physical limitations, includingthat she was drawing disability payments, which the Court found to be "especiallyrelevant" since the defendant claimed that the victim attacked him with a vase); 

### Wheeler 1 

### v. Commonwealth, 121 S.W.3d 173, 181 (Ky. 2003) (holding no prejudicial error for the Commonwealth's witness to testify thatvictim 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 thatvictim was a teacher, liftedweights andjogged sixmiles per day). "[A] certain amount ofbackground evidence regarding the victim is relevantto understanding the nature ofthe crime." Bussell 

### v. Commonwealth, 882 S.W.2d 111, 113 (Ky. 1994). The prosecution can introduce evidence in 7the 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 ofthe crime, "[v]ictim impact evidence differs from victim background evidence, in thatthe former is 'generally intended to. arouse sympathy for the·families ofthe victims, which, although relevantto the issue ofpenalty, is largely irrelevant to the issue ofguilt 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 notunduly 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, Currywas very matter offact, speakingin 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 notriddled with emotional outbursts, nor
was it overly expounded upon bythe prosecution." 

### Campbel.l, 788 S.W.2d at 264. In fact,.the Commonwealth did noteven mention Curry's testimony again during the trial or during closing argument. Curry's testimony did not rise to the level ofan impermissible victim impact statement. Accordingly, we conclude that this testimonywas permissible victim background evidence, and did not resultin any manifest injustice. Last, Richmond argues that the trial court committed reversible error in permitting Curry to testify as an expertregardingthe neurological responses of
. 8childrenwith autism. As this argumentis unpreserved, we review for palpab_le
error pursuant to RCr 10.26.

that: Specifically, Richmond objects to a short portion ofCurry's testimony

N.V. has different neurological responses. Children with autism have executive functioning issues. She has times she will squeeze herjaw, 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 thatthis constitutes improper expert testimony in violation ofKRE 702, which requires an expertbe qualified "byknowledge, skill, experience, training, or education" ifthe testimony is "basedupon sufficient facts or data;
... the product ofreliable principles and methods; and the witness has applied the principles and methods reliably to the facts 

### ofthe case." Richmond asserts that Curry "should have never been permitted to testify to the 'neurological responses' ofchildren with autism," and this improper testimony led to undue prejudice, which swayed thejury "by bolstering the testimony regarding N.V.'s abilities." We disagree that this evidence constitutes experttestimony. KRE 701 provides: Ifthe witness is nottestifying as an expert, the witness' testimony in the form ofopinions or inferences is limited to those opinions or inferences which are: (a). Rationally based·on the perception ofthe witness;
9· (b) Helpful to a clearunderstanding ofthe witness' testimony or the determination ofa fact in issue; and (c) Notbased on scientific, technical, or other specialized knowledge within the scope ofRule 702. Although Richmond is correctthat a foster parentmay nottestify as an expert witness competent as to the existence ofabuse, Curry did not testify in any

-way as to the existence ofabuse nor to how abuse affects autistic children

neurologically. 

### See Crum v. Com., Cabinet forHumanRes., 928 S.W.2d 355, 357 (Ky. App. 1996). When reviewed in context, Curry did nottestify as an expert on neurological**respons~s** ofchildren with autism; rather, she testified to common behaviors ofa"l,ltistic. children specificallyrelated to N.V.'s autistic behaviors, most presumably based on the eightmonths she had cared for the child. Further, this testimonywas especially helpful to this case since the main impetus ofthe abuse inflicted upon N.V. by Richmond was to "break" her ofautistic behaviors. This testimony did notunfairly 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 thatthe trial court did not err in allowing the testimony of the foster mother, Curry. Accordingly, we find no reversible error, and affirm thejudgmentofconviction and sentence. · All sitting. All concur-.

10COUNSEL FORAPPELLANT: Karen ShuffMaurer Assistant Public Advocate Department ofPublicAdvocacy
COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky JeffreyAllan Cross AssistantAttorney General

11