Lead Opinion
Appellant was convicted in the Pulaski Circuit Court of three counts of first-degree sodomy and two counts of first-degree sexual abuse. He was sentenced to confinement for twenty years on each of the sodomy convictions and confinement for one year on each of the sexual abuse convictions, all to run concurrently each with the others. He appeals to this court as a matter of right. Ky. Const, § 110(2)(b).
The indictment charged Appellant with four counts of first-degree sodomy and ten counts of first-degree sexual abuse of J.V., a minor child less than twelve years of age. In addition, he was charged with three counts of first-degree sexual abuse of N.P., B.C., and K.G., also children less than twelve years of age. He was acquitted of all counts except three counts of first-degree sodomy of J.V. and two counts of first-degree sexual abuse of J.V.
I. SUFFICIENCY OF THE EVIDENCE
J.V. testified that she was bom on October 22,1983 and that she was ten years old when the trial was held in May-June, 1994. The indictment charged offenses occurring in September and October 1992. At that time, J.V. was enrolled at Bev’s Day Care Center, which was owned and operated by Beverly Mitchell, Appellant’s daughter. Appellant lived two houses from the day care center and, although he was not employed by the center, he ran errands for Mitchell and transported children in his van. J.V. testified that the first incident of sexual abuse occurred after Appellant had taken all of the other children home in the van. He then drove J.V. to the fairgrounds, where he subjected her to acts of sexual contact and oral sodomy. The second occasion occurred under similar circumstances at Trinity Springs, where Appellant again subjected J.V. to sexual contact and oral sodomy. The third occasion occurred again at the fairgrounds, where J.V. claimed Appellant subjected her to sexual contact and two separate acts of oral sodomy. J.V. testified to other acts of sexual contact which are not relevant to this appeal, since Appellant was found not guilty of those charges.
Appellant claims the evidence was insufficient to prove his guilt because J.V. failed to testify to specific dates and times when the acts of sexual abuse occurred. In a felony case, the failure to prove the specific date of
II. TESTIMONY OF J.V.
On the recommendation of J.V.’s treating psychologist, J.V. was permitted to testify from the circuit court library. Her testimony was transmitted by closed circuit television to a monitor in the courtroom where it was viewed by the jury and courtroom spectators. Appellant was permitted to remain in the library where he could observe J.V. “face to face” during her testimony. Ky. Const., § 11. The trial judge explained his decision as follows:
The Court sympathizes with the need to permit young children to testify in a nonthreatening environment. The Court will allow the Commonwealth to present the testimony of the children through closed circuit television transmission from the circuit court library into the circuit courtroom before the jury. Based on the Court’s experience with the competency hearing, the Court finds that the children are capable of testifying in the presence of the Defendant. The Court therefore shall allow the Defendant to be present in the library when each child testifies so that his rights under the confrontation clause may be respected. The Defendant may choose, at his option, to remain in the courtroom in the presence of the jury while the children testify.
The procedure used in this case was much more favorable to Appellant than that authorized by KRS 421.350(3) and approved in Commonwealth v. Willis, Ky.,
Appellant also claims it was error to permit J.V. to use anatomically detailed dolls while describing the acts perpetrated against her by Appellant. In Souder v. Commonwealth, Ky.,
III. TESTIMONY OF J.V.’S MOTHER
Appellant asserts it was error to permit J.V.’s mother to testify that when she told J.V. on November 4, 1994, that Appellant would bring her home from the day care center on the following day, J.V. responded, “Please don’t make me ride with him.” This statement is not hearsay, since it does not purport to prove the truth of the matter asserted. What it tends to prove is that J.V. was then in fear of Appellant. Thus, the statement was admissible as a nonhearsay utterance reflecting the state of mind of the declarant. L.K.M. v. Department for Human Resources, Ky.App.,
Appellant also claims error with respect to a second statement of J.V.’s mother, which she made during the prosecutor’s attempt to elicit proof that J.V. was referred to William House for the purpose of treatment and not merely for evaluation. The colloquy was as follows:
Q. Okay—let me back up here. I am not sure that I am phrasing the question correctly. Did you learn—did someone tell you that [J.V.] had been sexually abused?
[Objection.]
[Overruled.]
A. No, [J.V.] was the one that told me that.
Q. Okay—thank you.
A. It was her.
Q. And, as a result of allegations for things that you had heard, did, at some point, you obtain some type of counseling for [J.V.]?
A. Yes, I did.
Q. Okay—with whom?
A. With William House.
In analyzing whether an “out-of-court” statement is inadmissible hearsay, the “ultimate inquiry is ... whether the statement has a relevancy that exists without regard to the truth of the assertions contained in the statement.” Lawson, supra, § 8.05, p. 368. In Sanborn v. Commonwealth, Ky.,
The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer’s action.
Id. at 541; see also Ruppee v. Commonwealth, Ky.,
Furthermore, J.V.’s statement to her mother did not identify Appellant as the perpetrator of the abuse. J.V., herself, testified at great length and detail concerning the abuse perpetrated against her by Appellant, and the jury heard Appellant’s recorded confession to the acts of sodomy and sexual abuse of which he was convicted. Thus, even if there had been a hearsay aspect to J.V.’s out-of-court statement, any error in its ad
IV. TESTIMONY OF WILLIAM HOUSE
William R. House is a certified psychological counselor and cognitive therapist. He has a masters degree in counseling and eighteen years experience in the field. He testified that the purpose of his counseling of J.V. was to address any emotional problems she may have been suffering as a result of sexual abuse. Appellant claims it was error to permit House to repeat statements made to him by J.V. describing the sexual abuse and identifying Appellant as the perpetrator. The trial judge made a KRE 104(a) finding that the statements were made for the purpose of treatment or diagnosis related to the cause or external source of her symptoms. KRE 803(4). In Edwards v. Commonwealth, Ky.,
Appellant also asserts that House erroneously was permitted to vouch for the credibility of J.V. House testified that he was initially concerned that J.V. might have been “coached.” Subsequently, however, he found J.V.’s responses to be “consistent” and supported by “internal logic,” and that such alleviated his initial concerns. He concluded his direct testimony by stating that “I felt that I trusted [J.V.]—or the veracity of the statements and
Generally, a witness may not vouch for the truthfulness of another witness. Hall v. Commonwealth, Ky.,
Finally, Appellant asserts error in the trial judge’s refusal to require House to produce his office records regarding his treatment of J.V. The records were not subpoenaed and House did not bring them to trial, but testified from memory. He informed the trial judge that his records did not contain any statements of J.V. and the judge accepted his word. Contrary to Appellant’s assertion, Anderson v. Commonwealth, Ky.,
V. TESTIMONY OF DR. LARRY NUNEMAKER
Dr. Nunemaker is a licensed obstetrician/gynecologist. He testified that his examination of J.V. revealed some hypertrophy and tearing in the vaginal area as well as some stretching and partial destruction of the hymen. He testified over objection that “those findings were compatible with [J.V.’s] history that she had given me” and with “something being inserted in there, and, trying to stretch it.” Appellant claims that the admission of this testimony is precluded by our holdings in Brown v. Commonwealth, Ky.,
Qualified medical experts traditionally have been permitted to testify to the cause of a physical condition. E.g., Hellstrom, v. Commonwealth, supra, at 617; Pevlor v. Commonwealth, Ky.,
Brown and Alexander are based on a false premise that any opinion which makes the existence of the ultimate fact more probable than not is an “opinion as to the ultimate issue” and, for that reason, inadmissible. In fact, the definition of relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. If Dr. Nunemaker had testified that he believed Appellant to be guilty, such would have been an opinion as to the ultimate issue. However, an opinion that a result is consistent with a factual scenario is not an opinion that the scenario occurred.
The real question should not be whether the expert has rendered an opinion as to the ultimate issue, but whether the opinion “will assist the trier of fact to understand the evidence or to determine a fact in issue.” KRE 702. Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill, Greer’s Adm’r v. Harrell’s Adm’r,
Until Hampton v. Commonwealth, supra, we followed the majority rule as expressed in the Federal Rules of Evidence, FRE 704, and the Uniform Rules of Evidence (U.L.A.), Rule 704, that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Department of Highways v. Widner, Ky.,
1.In Wemyss v. Coleman, Ky.,
2. In Kroth v. Commonwealth, Ky.,
3. In Carpenter v. Commonwealth, Ky.,
4. In Brown v. Commonwealth, supra, it was held that a doctor’s testimony as to the age of a cervical tear was an opinion as to the ultimate issue.
5. In Sargent v. Commonwealth, Ky.,
6. In Hellstrom v. Commonwealth, supra, it was held that a witness’s opinion that “delayed disclosure” is common among victims of child sexual abuse was an expression of an opinion on the ultimate issue. (The witness also was found to be unqualified to express an expert opinion on the subject.) However, it was held in the same case that it was not error to admit a doctor’s opinion that physical changes observed during examination of the child victim’s external genitalia were consistent with her history of sexual abuse.
7. In Turfway Park Racing Ass’n v. Griffin, Ky.,
8. In Hall v. Commonwealth, supra, an expert’s opinion that if a child repeats the same statement consistently over a period of
9. In Alexander v. Commonwealth, supra, a doctor’s opinion that a small tear in the child victim’s hymenal ring was consistent with a medical history of vaginal intercourse with an adult was held inadmissible as an expression of opinion as to the ultimate issue, citing Brown, supra, but not mentioning Hellstrom, supra.
10. In Cecil v. Commonwealth, Ky.,
11. In Renfro v. Commonwealth, Ky.,
12. In Turner v. Commonwealth, supra, the opinions of two doctors that the child victim’s history was “not inconsistent” with their physical findings were held to have been properly admitted.
13. In Newkirk v. Commonwealth, Ky.,
In a criminal case, the ultimate fact in issue is whether the defendant is guilty or not guilty. Whether the physical findings testified to by Dr. Nunemaker were consistent with sexual abuse is only a relevant evidentiary fact tending to make the ultimate fact more or less probable. KRE 401. As Professor Lawson politely notes:
The end result of these developments is extreme difficulty in the lower courts in determining admissibility of expert testimony embracing ultimate issues. The most one can say in summary of this part of the law is that expert opinion testimony may be inadmissible in some instances because it embraces ultimate issues of fact.
Lawson, supra, § 6.25, p. 313.
Part of our responsibility as the highest Court of this Commonwealth is to provide guidance for our trial judges as to how we expect them to conduct their trials. No doubt, the inherent inconsistency in our decisions with respect to the so-called “ultimate issue” rule is why these same issues continue to recur. The “ultimate issue” rule reflects a distrust of the jury’s ability to separate the wheat from the chaff and, in that respect, is an anachronism. “[The] common sense view is to receive the opinion testimony where it appears that the trier of fact would be assisted rather than impeded in the solution of the ultimate problem.” Department of Highways v. Widner, supra, at 586-87, quoting 2 Jones on Evidence, § 418 (5th ed.). This common sense view is now codified in KRE 702.
We now once again depart from the “ultimate issue” rule and rejoin the majority view on this issue. Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The opinion rendered by Dr. Nunemaker in this case concerned a subject peculiarly within the knowledge of a trained physician and was likely to assist the jury in determining whether J.V. had been sexually abused by Appellant: There was no error in the admission of this testimony.
VI. SUPPRESSED EVIDENCE
The trial judge suppressed evidence offered by Appellant in four respects.
1. Appellant sought to introduce some handwritten notes contained in records prepared by a previous owner of the day care center describing conduct by J.V. which occurred in 1989. One entry related that J.V. was observed touching her vaginal area with her hand during naps. Another related that J.V. teased the boys at the center by raising her dress. The trial judge excluded this evidence as being nonspecific and too remote in time.
Evidence of the character of the victim of criminal sexual conduct is generally inadmissible. KRE 404(a)(2). KRE 412(b) sets forth three exceptions to this rule, which may be summarized as follows: (1) to prove Appellant was not the source of the semen or injury; (2) to prove that the victim consented to the sexual behavior; or (3) to prove any other fact directly pertaining to the offense charged. The proffered evidence did not tend to prove any other cause of J.V.’s vaginal abnormalities. Consent is not a defense to sexual misconduct with a child under the age of twelve. Finally, since the evidence concerned events occurring three years prior to the events for which Appellant was indicted, they could not have directly pertained to the offenses charged. The evidence was properly excluded. Billings v. Commonwealth, Ky.,
2. Dr. Terence Campbell testified by avowal that children are generally suggestible and may be improperly influenced by adult interrogators if proper procedures are not followed. Since the interviews of J.V. were neither videotaped nor audiotaped, Dr. Campbell could not ascertain whether proper procedures had been followed in this case. Thus, he presumed that proper techniques were not followed and, ergo, the testimony of the children was unreliable. This proposed hypothesis premised upon speculation was properly excluded as irrelevant.
3. Lora Poynter was the mother of another child suspected of having been abused by Appellant. She proposed to testify that she did not approve of the manner in which the social workers interviewed her daughter. However, she had no background which would qualify her to render an opinion on that subject.
4. Ernest Alexander was the father of another child suspected of having been abused by Appellant. He was of the opinion that the social workers were already convinced of Appellant’s guilt. No social worker rendered an opinion as to Appellant’s guilt at trial. In the absence of any proof that the social workers falsified evidence, Alexander’s opinion was irrelevant.
For the reasons stated herein, the judgments of conviction and the sentences imposed by the Pulaski Circuit Court are affirmed.
Notes
. Rule 704(a) of the Federal Rules of Evidence (which we refused to adopt) states, in pertinent part: ‘‘[TJestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
Concurrence Opinion
concurring in result only.
While I concur that appellant’s conviction should be affirmed, I write separately to express my substantial disagreement with important aspects of the majority opinion. In general, I view the majority opinion as an undesirable departure from heretofore settled Kentucky law.
Appellant has claimed error in the admission of hearsay evidence from William House, a psychologist counselor who provided treatment to J.V. after the allegations of sexual abuse were made. At trial, House testified that J.V.’s mother brought the child to him for counseling for sexual abuse. While on the witness stand, he related statements made by J.V. during counseling alleging that appellant “took my underwear off’ and “put his mouth down there.”
The Commonwealth contends that House’s testimony was admissible under KRE 803(4), which allows:
[statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.
When considering whether this hearsay exception applies, a trial court must look to the relationship between the declarant and the professional to evaluate the probable reliability of the statements at issue. See, e.g., Edwards v. Commonwealth, Ky.,
Measured against these standards, there was no error in the admission at trial of J.V.’s statements to the counselor, Mr. House. J.V.’s mother brought her daughter to House for counseling. The child underwent an estimated twenty-two counseling sessions with House, ranging from forty-five minutes to as long as two hours in length. At trial, House described his role as helping J.V. with her emotional problems stemming from sexual abuse. The trial court found House to be “sufficiently qualified that he is ... a treating counselor in this situation,” and allowed admission of the statements under KRE 803(4). From the facts detailed above which show a substantial course of treatment, the court acted within its discretion in making its determination.
Appellant also claims that Mr. House unfairly prejudiced his defense with an expression of belief in the truthfulness of J.V.’s allegations of sexual abuse. During the Commonwealth’s direct examination House said his general function as a counselor is to determine “why the individual—and, in this case, a child—is there, what has happened,
Quite clearly, House’s opinion testimony as to J.V.’s credibility was improper. In essence, House told the jury that he had examined J.V.’s version of the events and believed she was being truthful. This Court has often expressed disapproval of testimony which “remove[s] the jury from its historic function of assessing credibility.” Newkirk v. Commonwealth, Ky.,
“Psychologists and psychiatrists are not ... experts at discerning the truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of their patients’ credibility.”
This same legal reasoning applies with much greater force to the testimony of a social worker, however well qualified.
Hellstrom, supra at 614 (citation omitted). Moreover, Hellstrom equated comment on witness credibility with an expression of opinion on the ultimate fact in issue, a practice we have likewise disapproved. See Hall v. Commonwealth, supra; Newkirk v. Commonwealth, supra; Hester v. Commonwealth, Ky.,
However, upon careful examination of the transcript of the evidence, it is clear that this claim of error is unpreserved. R.Cr. 9.22. When the testimony complained of was given, there were no objections. Some such testimony came in during cross-examination and appellant sought no relief for lack of witness responsiveness. On one occasion, there was a colloquy between the court and counsel in which the prosecutor stated that the “counselor is being offered to establish the veracity of [J.V.’s] statement, that she made to him, regarding the source of her difficulties.” Defense counsel properly argued “He cannot—that is a comment on somebody’s truthfulness. It is specifically excluded under Alexander and Hall.”
While the foregoing suggests an objection to witness comment on the victim’s credibility, the trial court understood the objection to be otherwise and ruled that specific victim statements were admissible based on the treating physician exception to the hearsay rule, KRE 803(4). Moreover, the objection came well after most of the offensive testimony had been given. There were no other objections concerning expert opinion as to credibility and none at all were contemporaneous with the occurrence of the testimony. West v. Commonwealth, Ky.,
While the absence of a contemporaneous objection is clear, I do not believe the provisions of R.Cr. 10.26 should be invoked and relief granted on grounds of manifest injustice. While we should not retreat from our decisions which forbid expert witness comment on credibility, not every such violation amounts to substantial error. Only upon a determination that manifest injustice has resulted from the error should relief be granted. The evidence against appellant was highly persuasive. In such circumstances, there was no manifest injustice. Schambon v. Commonwealth, Ky.,
Prior to Dr. Nunemaker’s testimony, J.V. had testified for the Commonwealth. She was ten years old at the time of trial and related detailed accounts of appellant’s sexual abuse of her. In Brown v. Commonwealth, Ky.,
Despite suggested distinctions between this case and Brown and Alexander, and with due regard for Turner v. Commonwealth, Ky.,
Appellant has argued that the trial court erroneously prevented an important witness from testifying on his behalf. He argues that the testimony of Terence Campbell who holds a Ph.D. in clinical psychology should have been admitted at trial. Presented by avowal, Dr. Campbell’s testimony concerned the suggestibility of children, proper procedures in interviewing children and the appropriate standard of practice in child sexual abuse cases. Consistent with our decision in Newkirk v. Commonwealth, Ky.,
On appeal, the standard of review of a ruling denying admissibility of evidence under KRE 702, which governs expert opinion evidence, is whether “the trial judge abused his or her discretion.” Mitchell v. Commonwealth, Ky.,
There is no meaningful distinction between this testimony and that which was excluded in Newkirk and other eases as evidence of “child sexual abuse accommodation syndrome” or some facet thereof. This case well illustrates the mischief of such testimony and shows that allowing opinion testimony of this nature invites a war between “experts” which will serve only to confuse the jury and diminish its historic role of assessing witness credibility. The trial court properly excluded this testimony.
This issue also confirms this Court’s wisdom when it refused to adopt Rule 704 of the Federal Rules of Evidence, a rule which allows expert opinion testimony upon ultimate issues of fact. Sadly, and despite its protest to the contrary, the majority in this ease has amended the Rules of Evidence by adoption of Rule 704, contrary to the express provisions of KRE 1102 and 1103. KRE 1102(c) provides: “Neither the Supreme Court nor the General Assembly should undertake to amend or add to the Kentucky Rules of Evidence ...”
While the trial court properly excluded Dr. Campbell’s proffered testimony in this case, when such testimony is offered in the next ease, the majority opinion may result in its admission.
As set forth hereinabove, I concur in result only.
STEPHENS, C.J., joins this opinion concurring in result only.
Dissenting Opinion
dissenting.
• PART I
I cannot agree with the view of the majority that the admission of the testimony of Mr. William House and Dr. Larry Nunemaker was proper. I would hold that such was so prejudicial as to be reversible. Over the last ten years we have repeatedly prohibited this sort of evidence, and, though the issues may not be completely preserved, Appellant’s objection to House’s testimony vouching for the victim’s veracity was made at a time when the error could have been dealt with.
During the Commonwealth’s direct examination at trial, House described his function as determining “why the individual—and, in this ease, a child—is there, what has happened, and, how to help that situation.” In J.V.’s case, he worried initially that the child might have been “coached.” After interviewing J.V., however, House told the jury that he found J.V.’s answers to be “consistent” and supported by “internal logic.” When asked by the Commonwealth if J.V.’s responses to his questions “alleviated” his concerns about her being coached, House replied “Yes, it did.” House’s direct testimony ended with his assertion that “I felt that I trusted [J.V.]—or the veracity of the statements and so forth.” Appellant argues that, in vouching for J.V.’s credibility, House improperly invaded the province of the jury, and that the testimony should not have been admitted.
Clearly, House’s testimony regarding J.V.’s credibility, offered as opinion evidence, is improper. In essence, J.V. told House and the jury that Appellant sexually abused her; House then told the jury that they should believe J.V. This Court has often been suspicious of testimony that “remove[s] the jury from its historic function of assessing credibility.” Newkirk v. Commonwealth, Ky.,
*896 “Psychologists and psychiatrists are not ... experts at discerning the truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of patients’ credibility.”
This same legal reasoning applies with much greater force to the testimony of a social worker, however well qualified.
In a similar argument, Appellant charges that the trial court erred in allowing Dr. Nunemaker, a physician, to testify about his examination of J.V. Dr. Nunemaker testified extensively about the exam and the procedures involved, then characterized his findings as “consistent with [J.VJ’s history that she had given me” and compatible with someone inserting a finger into J.V.’s vagina.
At the Commonwealth’s behest, Dr. Nune-maker did exactly what this Court prohibited in Brown v. Commonwealth, Ky.,
PART II
I must address what is ultimately the most distressing aspect of the majority opinion: the opinion undertakes to wipe the slate clean of at least a decade of decisional law on point. The opinion states: “[t]he ‘ultimate issue’ rule reflects a distrust of the jury’s ability to separate the wheat from the chaff and, in that respect, is an anachronism.” Despite such a statement, it acknowledges that in 1992 this Court specifically refused to adopt FRE 704 and thereby retained the prohibition upon ultimate issue opinion testimony.
It has been suggested that our “ultimate fact” decisions are inconsistent. (Citations omitted). However, there is no ambiguity in our decision to eliminate the proposed Rule 704 from the Kentucky Rules of Evidence.
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While there may be inconsistencies in our decisions on ultimate fact opinion testimony, where the determination of credibility is synonymous with the ultimate fact of guilt or innocence, expert opinion is inadmissible. An expert witness may not testify that a defendant is guilty. When, as in this case, an expression of opinion as to credibility is the equivalent of an opinion as to guilt of innocence, it is of no consequence that the testimony was presented in a general manner rather than as specific to the case or on rebuttal rather than as evidence in chief.
The majority opinion herein proclaims “[w]e now once again depart from the ‘ultimate issue’ rule and rejoin the majority view on this issue” and states that “[o]ur departure from the ‘ultimate issue’ rule does not contravene KRE 1102 and 1103....” We do more here than simply interpret KRE 401 and KRE 702. As the Newkirk opinion observes, there was no inadvertence in our failure to adopt FRE 704; it was deliberately rejected and after thorough consideration. In direct violation of KRE 1102, the majority’s opinion does precisely what this Court refused to do when we rejected proposed KRE 704. While it is correct that the adoption of the Rules of Evidence left a number of other issues open, this is one that we have written on extensively and comprehensively, writings which we now reject.
When this appeal first reached this Court, it appeared to be a simple reargument of issues that had been long settled. In the course of resolving this case we have undone important decisional law that protected a basic right in this Commonwealth: the right to have a jury, not an expert witness, determine the credibility of those who testify against you.
LAMBERT, J., joins in Part II of this dissenting opinion.
Concurrence Opinion
concurring.
Recognizing the law of the Commonwealth, I concur in the result reached by the majority. However, I renew my constitutional objection to KRS 421.350, as stated in my dissent in Commonwealth v. Willis, Ky.,