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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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 AFTER JANUARY 1, 2003, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISIO,N 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. 
LI Er J_J . CIF 1C11.4 G, 1 LI 

c T PU LIS ED 

oi5uprrtur Court of "Aria„ri tit 

2014-SC-000176-MR " 

RANDALL E. BANKS APPELLANT 

ON APPEAL FROM HART CIRCUIT COURT 

V. HONORABLE JOHN DAVID SEAY, JUDGE 

NO. 12-CR-00030 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Randall E. Banks, appeals from a judgment of the Hart Circuit 

Court convicting him of two counts of first-degree rape; three counts of firstdegree sodomy, three counts of first-degree sexual abuse, and of being a firstdegree persistent felony offender. He was sentenced to imprisonment for forty 

years. 

Appellant contends that he is entitled to relief for the following reasons: 

(1) the trial court abused its discretion by failing to conduct a hearing 

regarding possible witness tampering during his trial when (a) members of a 

victims' support group had communications with the victim/witness as she 

awaited her turn to testify and (b) the Commonwealth's lead detective used 

gestures to communicate with the victim/witness as she testified; (2) error 

occurred at trial when two witnesses were permitted to give testimony 

bolstering the credibility of the victim/witness; (3) the trial court abused its 
discretion by allowing the victim's treating physician to give general expert 

opinion testimony without evidence qualifying the witness as an expert; (4) that 

Appellant was unfairly prejudiced when improper incest instructions, 

duplicative of the rape instructions, were submitted to the jury; and (5) 

palpable error occurred as a result of prosecutor's misconduct in his closing 

argument. We find no merit to Appellant's claims and, therefore, we affirm the 

judgment of the Hart Circuit Court. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Appellant was charged with forty sexual-related crimes, including rape, 

incest, and sexual abuse that were allegedly committed against his daughter, 

Sharon,' while she was under twelve years old. Appellant was also charged 

with being a persistent felony offender. Several of the sexual charges were 

dismissed before trial. Witnesses for the Commonwealth included Sharon, who 

described the various crimes committed by Appellant, and Dr. Kelly Kries, who 

examined Sharon after the allegation of rape and sexual abuse came to light. 

Appellant denied all the charges. 

At the conclusion of the trial, the jury was instructed that it could find 

Appellant guilty on two counts of first-degree rape; three counts of first-degree 

sodomy; three counts of first-degree sexual abuse; and five counts of incest; 

and of being a first-degree persistent felony offender. The jury convicted 

Appellant on all charges. However, after the return of the verdicts, and based 

I "Sharon" is a pseudonym we have employed to preserve the anonymity of the 

complaining witness, a minor. 

2 
upon a perceived double jeopardy violation, the trial court dismissed the five 

incest charges. 

II. THE VICTIM-WITNESS'S INTERACTION WITH OTHERS IN AND OUT 

OF THE COURTROOM 

Before the trial began, the rule on separation of witnesses, KRE 615, was 

invoked. Later, during the trial, Appellant twice complained of improper 

communications with Sharon in what he regards as violations of the rule on 

separation of witnesses and improper attempts to influence her testimony. 

First, Appellant claimed that members of a victims' advocacy group known as 

"Bikers Against Child Abuse" (the Bikers) had engaged in conversations with 

Sharon while she waited to testify. Second, Appellant complained that while 

Sharon testified, the lead investigator in the case, Detective Laura Isenberg, 

who was present in the courtroom, tried to influence Sharon's testimony by 

silently nodding to her. He brought both issues to the trial court's attention 

but the court did not conduct a formal evidentiary hearing on them. 

When Sharon was called to the witness stand, she was wearing a sticker 

on her shirt which read "Bikers Against Child Abuse." The trial judge noticed 

the sticker and briefly recessed the proceedings. During the recess, Sharon 

was directed to remove the sticker and the judge admonished the audience in 

the court room as follows: 

I am going to order that you not have any more contact with the 

Commonwealth's witness; and I don't know if there has been any 

or not, except I saw one gentleman go out of the courtroom when 

we were going to call [the victim] as a witness. 

3 
In the subsequent discussion about the matter, the judge asked if 

defense counsel was aware of any violations of the separation of witnesses rule. 

Defense counsel responded that "since the beginning of this trial the Bikers 

have been in the grand jury room with the witnesses" and that "we know they 

have been speaking to them and talking to them." Defense counsel asked for 

no further relief. Notably, he did not request or suggest that a hearing be held 

to determine what contacts Sharon had with other persons after the invocation 

of KRE 615. The trial resumed. 

As Sharon's testimony proceeded, she could be seen silently mouthing 

words, as if in tacit communications with someone in the courtroom. Detective 

Isenberg, who was seated at the counsel table with the prosecutor, was 

nodding to Sharon. That conduct prompted Appellant's counsel to approach 

the bench and move for a mistrial. He now contends that the trial court erred 

in denying the mistrial. 

With respect to the Bikers, Appellant characterizes their contact with 

Sharon as a violation of the rule on separation of witnesses. He cites to Ballard 

v. Commonwealth, 743 S.W.2d 21, 22 (Ky. 1988), for the proposition that an 

evidentiary hearing was necessary for a proper determination of whether that 

rule was violated. When Ballard was decided, our rule for separation of 

witnesses was RCr 9.48, which has since been repealed and replaced by KRE 

615. 

KRE 615, which is nearly identical to the former rule, RCr 9.48, provides 

that "[a]t the request of a party the court shall order witnesses excluded so that 

4 
they cannot hear the testimony of other witnesses and it may make the order 

on its own motion." 2Like its predecessor, KRE 615 provides for the 

"separation" of witnesses, not the "sequestration" of witnesses. It does not 

prevent communication or interaction between witnesses and other persons 

outside the courtroom. Woodard v. Commonwealth, 219 S.W.3d 723, 728 (Ky. 

2007) ("[T]he rule requires only the separation of witnesses so that they can not 

[sic] hear testimony in the courtroom.") 3There is no allegation that Sharon 

was communicating with other witnesses or that the Bikers were relaying to 

Sharon the testimony of other witnesses. As such, we are persuaded that 

Appellant's reliance upon the rule for separation of witnesses is misplaced. 

It appears that the Bikers were present to offer moral support and 

encouragement to Sharon, whom they apparently regarded as a victim of child 

abuse. There was no indication to the contrary that would have compelled the 

trial court to undertake a more extensive evidentiary inquiry into the matter. 

The action of the Bikers simply does not implicate KRE 615 and does not 

suggest anything that might compel the trial court to inquire into possible 

witness tampering. 

More significantly, however, despite his awareness of the Bikers and 

their cause, Appellant never requested a more formal evidentiary hearing on 

2 RCr 9.48 provided: "If either a defendant or the commonwealth requests it, the 

judge may exclude from the hearing or trial any witness of the adverse party not at the 

time under examination, so that he may not hear the testimony of the other witnesses. 

This provision shall not apply to the parties to the proceeding." 

3Overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 

2010). 
the matter. Under a loose definition of the term, it can fairly be said that a 

"hearing" was held inasmuch as the trial court conducted a brief inquiry into 

the matter during the recess taken in connection with the sticker. We perceive 

no error in the trial court's handling of this matter. 

In connection with gesturing between Sharon and Detective Isenberg that 

occurred during Sharon's testimony, Appellant asked the trial court to declare 

a mistrial. "A mistrial is an extreme remedy and should be resorted to only 

when there appears in the record a manifest necessity for such an action or an 

urgent or real necessity." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 

2002). "The standard for reviewing the denial of a mistrial is abuse of 

discretion." Id. 

When the incident was brought to the trial court's attention, the trial 

court denied Appellant's request for a mistrial and directed the prosecutor to 

have the detective stop gesturing to the witness. We agree with Appellant that 

this voiceless communication between an officer of the prosecution and a 

testifying witness was improper. We note Appellant's reliance upon Sharp v. 

Commonwealth, 849 S.W.2d 542, 547 (Ky. 1993). In Sharp, we reversed a 

conviction partly because under the attendant circumstances, improper 

courtroom gesturing between a victim/witness and "a self-described friend of 

the family" warranted a mistrial. Here, the improper interaction was far more 

limited in both scope and duration, and falls far short of the prejudicial 

conduct decried in Sharp. We are convinced that the trial court's handling of 

the matter was well within the bounds of proper discretion. Matthews v. 

6 
Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (A mistrial is necessary only "if a 

harmful event is of such magnitude that a litigant would be denied a fair and 

impartial trial and the prejudicial effect could be removed in no other way."). 

This assignment of error does not warrant reversal of Appellant's convictions. 

III. VOUCHING/BOLSTERING THE TESTIMONY OF ANOTHER WITNESS 

Appellant contends that witnesses for the Commonwealth, Dr. Kelly Kries 

and one of Sharon's relatives, engaged in improper attempts to vouch for the 

truthfulness of Sharon's testimony. Appellant concedes that this issue is not 

preserved and requests palpable error review pursuant to RCr 10.26. 

Dr. Kries is a physician who treated Sharon after the allegations of 

sexual abuse came to light. Appellant cites the following testimony by Dr. . 

Kries: 

Prosecutor. The fact that you observed these things, [was it] 

significant to you [that it] included the vagina as well as the anus? 

Dr. Kries In combination with the clear, concise detailed history 

that was consistent, the history that [Sharon] gave of someone 

putting their privates in her front side and her backside made me 

very suspicious that her findings could be due to sexual abuse. 

The prosecutor then asked Dr. Kries if the history given by a patient was 

significant; Dr. Kries replied, "Absolutely." When asked how the importance of 

the patient history compares to the importance of her physical findings, Dr. 

Kries replied: 

I would consider the history the most important part of what I do. 

My physical exam findings support what I do or they lend credence 

to the history, but the history, of everything I do, is the most 

important. 

7 
In addition to that testimony, Appellant argues that improper bolstering 

occurred when a relative of Sharon testified that she undertook certain actions 

in response to Sharon's revelation of abuse "because I believe what she 

[Sharon] told me." Appellant contends that the prejudicial effect of the 

foregoing bolstering was amplified by the prosecutor's statements during his 

closing argument that: 

[T]his comes down to two things, [Sharon's] testimony and Dr. 

Kelly Kries' testimony. I am not going to go over everybody else's 

testimony because that's what's really important, those two people 

. . . the rest of the testimony was just background." 

It is well-settled that a witness cannot vouch for the truthfulness of 

another witness. Hoff v. Commonwealth, 394 S.W.3d 368, 376 (Ky. 2011) 

(citing Stringer v. Commonwealth, 956 S.W.2d 883, 888 and Bell v. 

Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008) 4). In the context of child sex 

abuse cases, we have repeatedly held that no expert, including a medical 

doctor, can vouch for the truth of the victim's out-of-court statements. Id. 

(citing Hall v. Commonwealth, 862 S.W.2d 321, 322-23 (Ky. 1993) (collecting 

cases) and Bell, 245 S.W.3d at 744-45)). Indeed, this rule applies even when a 

witness indirectly vouches for the truth of the victim's statement. Id. In Bell, 

this Court stated that it was error to allow a social worker to testify that a child 

sounded "spontaneous" and "unrehearsed" in describing sexual abuse. Bell, 

245 S.W.3d at 744-45. Although the social worker in Bell did not literally say 

that she believed the child to be truthful, her opinion about the child's 

4 overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 

2008). 

8 
truthfulness was implicit in her statements, and so her testimony was 

impermissible bolstering. Bell at 745 n. 1; Hoff at 376. 

Here, the testimony of Sharon's relative that she believed what Sharon 

had told her directly violated our rule. However, this instance of bolstering was 

fleeting and not otherwise overemphasized. Similarly, Dr. Kries's testimony 

about the importance of patient history was, at most, bolstering in a very 

indirect sense. 5Of greater concern is Dr. Kries's testimony that Sharon 

provided a "clear, concise detailed history that was consistent," which projects 

the clear implication that Dr. Kries believed the victim's story. 

The prohibition against bolstering the testimony of another witness was 

clearly violated in this case. However, given the fleeting and indirect nature of 

the bolstering testimony, we are satisfied that there is no reasonable 

probability that they influenced the verdict or affected the outcome of the case, 

and did not so fundamentally affect the proceedings so as to threaten 

Appellant's right to due process of law. "When an appellate court engages in a 

palpable error review, its focus is on what happened and whether the defect is 

so manifest, fundamental and unambiguous that it threatens the integrity of 

the judicial process." Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006). 

5It is not clear, and it would be interesting to know, if Dr. Kries's assessment of 

the relative "importance" of the patient history, which is a rather subjective source of 

information, and the more objective physical findings, was from her perspective as a 

treating physician or from herperspective as a forensic examiner. It would seem that 

the relative "importance" of these sources of information may differ, depending upon 

whether the examiner's purpose is to restore the patient's health or to investigate a 

potential crime. 

9 
Furthermore, "[a] party claiming palpable error must show a probability 

of a different result or error so fundamental as to threaten a defendant's 

entitlement to due process of law." Chavies v. Commonwealth, 374 S.W.3d 

313, 322-23 (Ky. 2012). Because Appellant has failed to make this showing, 

we conclude that he is not entitled to relief under the manifest injustice 

standard. 

IV. DR. KELLY KRIES'S OPINION TESTIMONY 

Appellant next argues that error occurred when Dr. Kries was permitted 

to testify beyond her role as a treating physician and testify as an expert 

without having first been formally qualified pursuant to KRE 702. He 

specifically relies upon this Court's conclusion in Commonwealth v. Christie, 98 

S.W.3d 485, 489 (Ky. 2002), where we said that before admitting expert 

testimony, "the trial court [must] assess whether the proffered testimony is 

both relevant and reliable." We concluded in Christie that IfJailure to make a 

determination on the admissibility of expert testimony without an adequate 

record is an abuse of discretion by the trial court." 

KRE 702 provides that a witness "qualified as an expert by knowledge, 

skill, experience, training, or education" may provide opinion testimony if 

scientific, technical, or specialized knowledge will assist the trier of fact. 

Appellant focuses his objection exclusively upon the portion of Dr. Kries's 

testimony relating to her explanation of why she perceived no inconsistency 

between Sharon's testimony that Appellant had subjected her to vaginal 

10 
intercourse and Dr. Kries's physical findings that there was no damage to 

Sharon's hymen. In that context, the following exchange took place: 

Prosecutor: "Is [an intact hymen] something you would expect to 

find?" 

[Appellant's objection to this question is overruled.] 

Prosecutor "Is that something you would expect to find in a child 

that is alleging that someone has stuck their private in their front 

side." 

Dr. Kries: "Yes. The majority of cases I have seen, the hymen is 

normal." 

Prosecutor "What does that mean?" 

Dr. Kries: "That sexual contact occurred but the penis did not 

transect the hymen." 

Appellant argues that in this colloquy Dr. Kries was permitted to stray 

from her limited role as a treating physician, in which she could properly 

express opinions drawn from her examination of the victim, and was then 

permitted to venture into the realm of an expert witness expressing opinions 

not based upon her own observations and examination of the patient. 

Appellant contends that Dr. Kries's testimony as to what she "would expect to 

find" in connection with a victim of sex abuse, and her opinion that "in the 

majority of cases I have seen, the hymen was normal," was expert testimony 

under KRE 702 for which the trial court must evaluate the witness's 

qualifications. 

We are not persuaded by Appellant's argument. We begin by referring to 

this qualification in Christie: 

11 
This assessment [of expert opinion testimony] does not require a 

trial court to hold a hearing on the admissibility of the expert's 

testimony. But a trial court should only rule on the admissibility 

of expert testimony without first holding a hearing "when the 

record [before it] is complete enough to measure the proffered 

testimony against the proper standards of reliability and 

relevance." 

Id. at 488 (citations omitted). 

Although the trial court did not formally evaluate Dr. Kries's credentials 

to determine her level of expertise, the evidence established that she was a 

licensed medical doctor with substantial experience in treating and examining 

sexually-active or sexually abused girls. "The degree to which a witness may 

give an opinion, of course, is predicated in part upon whether and the extent to 

which the witness has sufficient life experiences that would permit making a 

judgment as to the matter involved." Mondie v. Commonwealth, 158 S.W.3d 

203, 212 (Ky. 2005) (quoting Underwood & Weisenberger, Kentucky Evidence 

2004 Courtroom Manual, 343, n. 24 (Anderson Publishing Co. 2003)). 

We believe it was readily apparent without need of a hearing that Dr. 

Kries was qualified to express the opinions that are the source of Appellant's 

complaint. There was no violation of KRE 702. Dr. Kries's testimony that the 

victim's hymen was not transected was rationally based upon her direct 

observation and perceptions. In effect, Dr. Kries's opinion about how there 

could have been intercourse without damage to the hymen amounts to a selfevident tautology, and thereby added little substance to the evidence. Her 

opinion was that an intact hymen was consistent with intercourse if "the penis 

did not transect the hymen." That is the equivalent of saying that "the hymen 

12 
was not damaged during intercourse because the penis did not damage it." 

Even if the admission of such an "opinion" had been error, the error was 

harmless because the opinion was essentially meaningless. 

Finally, Dr. Kries's opinion that in cases of sexual abuse she would 

expect to find that "the hymen is normal" was limited to her personal 

experience and observation. She said that was true in "the majority of cases I 

have seen." The dispositive element of this exchange is that Dr. Kries limited 

her answer to describing cases she had personally seen. Thus, with this 

testimony, Dr. Kries did not testify beyond the bounds of her qualifications 

derived from her education and professional experience which were subject to 

challenge on cross-examination. As such Appellant is not entitled to relief 

under this argument. 

V. PRESENTATION OF INCEST INSTRUCTIONS TO THE JURY 

The instructions presented to the jury at the conclusion of the guilt 

phase of the trial included five counts of incest. The jury returned a verdict of 

guilty on each of those counts. Afterwards, the trial court sua sponte 

determined that the incest counts, in combination with some of the rape 

counts, resulted in a double jeopardy violation under the "same elements" test 

13 
as outlined in Blockburger v. United States, 284 U.S. 299 (1932). 6As a 

resolution to the situation, and with the prosecutor's acquiescence, the trial 

court dismissed each of the five incest convictions "without prejudice." 7 

With the assumption that the trial court's Blockburger analysis was 

correct, 8Appellant contends that requiring the jurors to deliberate on the 

superfluous incest instructions in conjunction with their consideration of the 

other charges "was clear prejudicial error, palpable or otherwise" and in 

violation of his "Constitutional protections." He argues that the dismissal of 

the incest convictions did not remove the prejudicial effect of their presentation 

to the jury. 

We begin our discussion by noting that Appellant never brought to the 

trial court's attention the instructions that he now claims were erroneously put 

before the jury. Moreover, Appellant tendered his own proposed instructions 

6Based upon our disposition of the case we need not review the trial court's 

Blockburger analysis. However, we note that in Johnson v. Commonwealth, 292 

S.W.3d 889 (Ky. 2009), we held that the "crimes of rape and incest each require proof 

of a fact that the other does not. Specifically, rape requires proof of age, whereas 

incest does not; incest requires proof of relationship, whereas rape does not. See KRS 

530.020; KRS 510.040." Id. at 897. Appellant argues that Johnson is distinguishable 

for reasons related to the victim's age in this case (under twelve); however, again, we 

need not delve into the details of that claim. 

7Designation of the dismissal as being "without prejudice" seems to imply that 

Appellant at a later time may be tried again on the incest charges. However, the 

Appellant having already been tried and convicted on those charges by a jury, and the 

charges then having been dismissed post-conviction by the trial court on double 

jeopardy grounds, which was tantamount to an acquittal of the charges, and the 

Commonwealth having not sought to challenge the dismissal, and indeed agreeing to 

it, we are aware of no authority which would permit Appellant to again be tried, and 

again placed in jeopardy, on those same charges over his objection. See generally 

Commonwealth v. Gilliam, 425 S.W.3d 918 (Ky. App. 2014) (summarizing double 

jeopardy principles in the situation of an acquittal by the trial court). 

8The trial court's analysis of the double jeopardy question is not before us, and 

we decline to address here. 

14 
on the incest charges. RCr 9.54(2) provides that "No party may assign as error 

the giving or the failure to give an instruction unless the party's position has 

been fairly and adequately presented to the trial judge by an offered instruction 

or by motion, or unless the party makes objection before the court instructs 

the jury, stating specifically the matter to which the party objects and the 

ground or grounds of the objection." 

In Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013) we clarified that 

"RCr 9.54 imposes upon the party the duty to inform the trial court of its 

preferences' regarding the giving or the failure to give' a specific jury 

instruction." Id. at 346. In summarizing the consequences of a. party's failure 

to inform the trial court with his preference we stated "when the allegation of 

instructional error is that a particular instruction should have been given but 

was not or that it should not have been given but was given, RCr 9.54 operates 

as a bar to appellate review unless the issue was fairly and adequately 

presented to the trial court for its initial consideration." Id. (emphasis added). 

Appellant's argument falls squarely within the bar imposed by RCr 9.54, 

as explained in Martin, and therefore, it will not be reviewed as possible error. 

Further, because Appellant himself tendered incest instructions, his argument 

is further barred under the invited error doctrine. Webster v. Commonwealth, 

438 S.W.3d 321, 324 (Ky. 2014) (when a party tenders an instruction that is 

substantially similar to those ultimately given by the trial judge the issue of the 

giving of the instruction is not eligible for appellate review); see also Thornton v. 

Commonwealth, 421 S.W.3d 372, 376 (Ky. 2013). 

15 
VI. CLOSING ARGUMENTS BY THE PROSECUTOR 

Appellant's final argument is that error occurred as a result of 

statements made by the prosecutor during closing arguments. Appellant 

, acknowledges that this issue is not preserved but requests palpable error 

review pursuant to RCr 10.26. 

More specifically Appellant identifies the following statements as 

compelling reversal: 

[T]his comes down to two things, [Sharon's] testimony and Dr. 

Kelly Kries' testimony . . . that's what's really important, those two 

people . . . . [Dr. Kries' testimony was] important because she's an 

expert. She's not like me and you. She knows what she's looking 

at when she does a forensic exam." 

The essence of Appellant's argument is that the prosecutor engaged in 

misconduct because he referred to Dr. Kries as an "expert," even though she 

was not formally called as an expert witness, had not been formally qualified as 

such or declared so by the trial judge, and was proffered as Sharon's "treating 

physician" rather than an expert forensic examiner. 

As noted above, Appellant concedes that this issue was not preserved by 

adequate contemporaneous objection, and so our review is pursuant to the 

manifest injustice standard contained in RCr 10.26. In the circumstance of 

alleged prosecutorial misconduct in closing arguments, we consider whether 

the Commonwealth's statements are supported by facts in the record and 

whether the allegedly improper statements appeared to rebut arguments raised 

by defense counsel. Young v. Commonwealth, 25 S.W.3d 66, 74 (Ky. 2000). 

Further, we must always consider the prosecutor's closing arguments "as a 

16 
whole" and keep in mind the wide latitude we allow parties during closing 

arguments. Id. at 75. 

Here we find no error at all, and so perforce there was no palpable error. 

While it is true that in this case Dr. Kries was not formally qualified as an 

expert witness, she undoubtedly possessed the necessary qualifications to meet 

that standard under KRE 702 if that route had been pursued. For example, 

the record reflects that Kr. Kries is a pediatric physician with fourteen years in 

the field, and that she has treated approximately 50,000 children during her 

medical career, including many child sexual abuse victims. Thus the 

prosecutor's referral to the witness as an "expert" was not incorrect, at least in 

the colloquial sense for purposes of making his argument to the jury. In 

summary, we hold that the prosecutor's reference to Dr. Kries as an "expert" 

fell within the wide latitude afforded to attorneys in making their closing 

arguments to the jury. 

VII. CONCLUSION 

For the foregoing reasons, the judgment of the Hart Circuit Court is 

affirmed. 

All sitting. Minton, C.J., Abramson, Barber, Cunningham, Noble, and 

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

17 
COUNSEL FOR APPELLANT: 

Jason Curtis Rapp 

Franklin 86 Rapp 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General 

Leilani K.M. Martin 

Assistant Attorney General 

Office of Criminal Appeals 

Office of the Attorney General 

18