IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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RENDERED: AUGUST 20, 2015 

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2014-SC-000408-MR 

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ROGER DALE RAFFERTY APPELLANT • 

ON APPEAL FROM DAVIESS CIRCUIT COURT 

V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE 

NO. 13-CR-00334 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

On March 18, 2013, Appellant, Roger Dale Rafferty, and his wife, Jane 

Rafferty, babysat their granddaughters, Francine and Madison.' At some point 

during the day, Appellant and Francine, who was three-years-old at the time, 

were left alone. During that time, Appellant placed his mouth on Francine's 

vagina and then proceeded to masturbate in front of her. Approximately two 

weeks passed before Francine mustered up the courage to tell her parents of 

Appellant's actions. The very next day, after Francine's father confronted him, 

Appellant admitted to orally sodomizing Francine and masturbating in her 

presence. Francine's father immediately notified law enforcement. Shortly 

thereafter, Detective Brandon Sims of the Owensboro Police Department 

interviewed Appellant and procured his recorded confession. 

1Pseudonyms are being used to protect the girls' anonymity. 
On May 8, 2013, a Daviess County Grand Jury indicted Appellant on one 

count of first-degree sodomy and first-degree sexual abuse. Despite Appellant's 

admissions, his attorney entered a not guilty plea on his behalf. The case 

proceeded to trial on Mach 25, 2014. Over Appellant's objection, Francine, 

who was five-years-old at the time of trial, testified via closed circuit television. 

She explained that Appellant touched her "bad part" with his tongue, and then 

"peed" into toilet paper. The jury ultimately found Appellant guilty of each 

charge. The jury recommended a life sentence for the first-degree sodomy 

charge and ten years imprisonment for the first-degree sexual abuse charge, 

both to run concurrently. On July 11, 2014, the trial court sentenced 

Appellant in conformity with the jury's recommendation. Appellant now 

appeals his conviction and sentence as a matter of right pursuant § 110(2)(b) of 

the Kentucky Constitution. 

Appellant's sole argument on appeal is that the trial court abridged his 

federal and state constitutional rights to confrontation and to a fair trial as 

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United 

States Constitution and Section Eleven of the Kentucky Constitution. Prior to 

trial, the Commonwealth notified Appellant and the trial court that it intended 

on calling Francine to testify during its case-in-chief. However, the 

Commonwealth requested that Francine be allowed to testify by way of a closed 

circuit television pursuant to Kentucky Revised Statute ("KRS") 421.350. 

Appellant objected to the motion and claimed that testimony given outside of 

the courtroom, without him present, would impede his ability to confront 

2 
Francine. Prior to trial, the court conducted a hearing on the matter to 

determine if there was a compelling reason to allow Francine to testify via 

closed circuit television. 

In support of its motion, the Commonwealth called Tara Gann, a licensed 

clinical social worker, who had counseled Francine. Gann testified that in past 

counseling sessions, Francine expressed her fear of Appellant. Francine 

relayed to Gann that if she was to ever see Appellant she would run away. 

Accordingly, Gann informed the trial court that if forced to testify in front of 

Appellant, Francine would not only suffer emotional distress, but she would 

likely be unable to reasonably communicate to the jury. In addition, Francine's 

mother, Haley, testified that her daughter was extremely wary of seeing 

Appellant and expressed concern that he would touch her again. Like Gann, 

Haley believed Francine would be unable to testify in Appellant's presence, 

and, if forced to do so, would suffer emotional distress. 

At the conclusion of the hearing, the trial court agreed with the 

Commonwealth that Francine should not testify in open court. The trial court 

explained that Francine's fear of Appellant would prevent her from adequately 

informing the jury of her experience. Per the Commonwealth's request, 

Francine was allowed to testify in the judge's chambers while Appellant waited 

in the courtroom. To ensure that Appellant maintained continuous audio 

contact with his attorney during Francine's testimony, both Appellant and his 

counsel were provided with walkie-talkies. As the trial judge explained, if 

3 
Appellant had a question, he could make the walkie-talkies "beep," after which 

his counsel could leave the judge's chambers to field his questions. 

KRS 421.350(1)-(2) permits a victim of sexual abuse to testify outside of 

the courtroom, by way of a closed circuit television, if the victim was twelve 

years of age or younger when the abuse occurred and there is a compelling 

need for the victim to testify outside of the defendant's presence. "A trial 

court's finding of compelling need pursuant to KRS 421.350 is reviewed for 

abuse of discretion." Kurtz v. Commonwealth, 172 S.W.3d 409, 411 (Ky. 2005) 

(citing Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998)). A 

compelling need is defined as "the substantial probability that the child would 

be unable to reasonably communicate because of serious emotional distress 

produced by the defendant's presence." KRS 421.350(5). Some non-exclusive 

factors a court may consider in determining the existence of a compelling need 

include "the age and demeanor of the child witness, the nature of the offense 

and the likely impact of testimony in court or facing the defendant." 

Commonwealth v. Willis, 716 S.W.2d 224, 230 (Ky. 1986). 

In analyzing the above-referenced factors, we place great weight on the 

fact that Francine was only three-years-old at the time of the offense and only 

five-years-old at the time of trial. Based on Francine's young age and the 

sensitive nature of her testimony, testifying in open court would most certainly 

cause her mental distress. The victim's anguish is amplified in light of her 

reasonable expectation of never seeing her assailant face-to-face again. 

Danner, 963 S.W.2d at 635 (holding that it was not an abuse of discretion to 

4 
allow the victim to testify via closed circuit television because face-to-face 

arrangement would inhibit her testimony and cloud the jury's search for truth). 

Indeed, even after explaining that the trial judge, attorneys, and bailiff would 

be present, Francine expressed concern to her mother that Appellant would 

touch her if the two were in the courtroom together. 

The aforementioned testimony that Francine was frightened by even the 

thought of seeing Appellant is sufficient to prove that Francine's trepidation 

goes beyond a de minis nervousness or "reluctance to testify." See Kurtz, 172 

S.W.3d at 411 (sole testimony of children's mental health counselor was 

sufficient to support the trial court's finding of a compelling need); Hardy v. 

Commonwealth, 719 S.W.2d 727, 728-29 (Ky. 1986) (videotaped deposition was 

properly used at trial after psychologist and treating physician opined that it 

would be emotionally and psychologically detrimental to require a six-year-old 

victim to testify in person at trial). Furthermore, we believe the distress 

Francine may have endured if forced to testify in open court makes it extremely 

likely that her testimony would have been hindered. As a result, "and in the 

interest of presenting all evidence to the jury," we conclude that the trial court 

did not abuse its discretion in finding a compelling need. See Danner, 963 

S.W.2d at 635. 

For the aforementioned reasons, the Daviess Circuit Court's judgment is 

hereby affirmed. 

All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Keller, and 

Venters, JJ., concur. Noble, J., concurs in result only. 

5 
COUNSEL FOR APPELLANT: 

Erin Hoffman Yang 

Assistant Public Advocate 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

Nathan Todd Kolb 

Assistant Attorney General of Kentucky