FROM MCCRACKEN CIRCUIT COURT HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 15-CR-00406.
FOR APPELLANT: Steven J. Buck Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry
T. Ryan Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
Yates was convicted by a jury of criminal abuse in the first
degree, for which he was sentenced to seven years'
imprisonment. His lone argument on appeal is that the trial
court erred by admitting the curriculum vitae of a
physician called as an expert witness by the Commonwealth. We
infant child of Yates' paramour was taken to an emergency
room in Paducah, where an x-ray revealed a broken right arm.
The broken arm was set, a significant laceration behind the
infant's ear was sutured and the child was sent to a
children's hospital in Louisville. In Louisville, a
forensic nurse examined the infant and noted his broken arm,
sutured ear, avulsed frenulum,  and numerous bruises. The nurse
gave her assessment to Dr. Melissa Currie, a specialist in
child abuse medicine. Dr. Currie personally did not examine
the infant, who tragically died from his injuries.
told investigating officers varying stories, initially
denying any knowledge of how the infant was injured. He then
switched and told alternating stories that he grabbed the
baby by the arm to try to stop him from falling out of
Yates' arms and that he had caused the baby's arm to
"pop" by pushing on it. Yates also said his
fingernail may have scratched the infant's ear and that
he (Yates) may have caused the avulsed frenulum by using too
much force during a feeding.
was charged with abuse in the first degree, and the case
proceeded to a jury trial. An emergency room doctor from
Paducah testified about treating the infant and opined that
his injuries were inflicted; that is to say, not accidental.
The forensic nurse from Louisville also described the
infant's injuries in detail, after which the Commonwealth
called Dr. Currie as an expert witness. Dr. Currie related
some of her educational and professional background,
including being board certified in child abuse medicine and
being a member of an organization of doctors who specialize
in child abuse medicine. The Commonwealth then attempted to
introduce Dr. Currie's lengthy curriculum vitae
into evidence, but Yates objected on relevancy grounds only.
The objection was overruled, and Dr. Currie eventually opined
that the infant's injuries were inflicted. The jury found
Yates guilty and he was sentenced to seven years'
we address the merits of Yates' argument, we note it is
not based solely on the preserved claim of trial court error
that the curriculum vitae was inadmissible because
irrelevant. It is also based on the unpreserved claim of
trial court error - presented for the first time to this
Court - that the curriculum vitae was inadmissible
because it was cumulative. See, e.g., Elery v.
Commonwealth, 368 S.W.3d 78, 97-98 (Ky. 2012) (citing
cases holding that an argument on appeal differing from an
argument at the trial court is unpreserved). We review
unpreserved claims for relief under the palpable error
standard of RCr10.26. Yates asked that we consider his
cumulative error argument under the palpable error rule.
Under that rule an unpreserved error merits relief only if it
is "so fundamental as to threaten a defendant's
entitlement 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, 3-5 (Ky. 2006).
the preserved argument first, we conclude that the trial
court did not err by overruling Yates' relevancy-based
objection to admitting the curriculum vitae. Before
testimony based on "scientific, technical, or other
specialized knowledge" can be admitted, there must be
proof that the testifying "witness qualified as an
expert by knowledge, skill, experience, training, or
education . . . ." KRE 702. A curriculum vitae
is relevant because it has a "tendency to make the
existence of [the witness's expertise] more probable or
less probable than it would be without the evidence" of
his qualification to testify. KRE 401. "All relevant
evidence is admissible, except as otherwise provided"
constitutionally, by Kentucky statute, or by the rules of
evidence or other rule of the Kentucky Supreme Court. KRE
402. Yates directs us to no such exception. Therefore, the
curriculum vitae was properly admitted because it
set forth Dr. Currie's professional background, a
necessary component of an expert's qualifications, and it
sheds light on her credibility.
turn to the unpreserved claim of error that the evidence
should not have been allowed because it was cumulative.
"KRE 403 gives trial courts the discretion (and, in some
instances the duty) to limit the admission of relevant
evidence under certain circumstances, namely, where the
'probative value is substantially outweighed by'
various harmful effects, including 'considerations of
undue delay, or needless presentation of cumulative
evidence.' KRE 403." Daugherty v.
Commonwealth, 467 S.W.3d 222, 234 (Ky. 2015) (emphasis
added). In this case, the trial court acted within its
discretion to admit the curriculum vitae that, to
some degree, may have repeated in writing the credentials
about which the expert witness testified. To say the least,
allowing the evidence was not palpable error because it did
not threaten Yates' entitlement to due process, and there
is no probability that the outcome of Yates' trial would
have been different had the curriculum vitae been
the curriculum vitae contains many references to
child abuse (which is unsurprising given that Dr. Currie
practices child abuse medicine), but even though he moved
in limine to prohibit references to child abuse,
Yates did not object at trial when Dr. Currie testified that
she was board certified in child abuse medicine, was a member
of a professional organization of child abuse doctors, had
published an article on head injuries in child abuse victims,
and was the medical director in chief of the child abuse
program at the University of Louisville. Even if we were to
(hypothetically and generously) conclude that the references
in the curriculum vitae to Dr. Currie's
experience with child abuse were cumulative, its admission
would not have been egregious or rise to the level of
palpable error. See, e.g., Doneghy v.
Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013) ("We
note that [n]ot all evidence that is duplicative is therefore
cumulative, and evidence should not be excluded on this
ground merely because it overlaps with other evidence. . . .
It is undeniable that testimony overlapped to some degree,
but some overlap, alone, does not render the evidence