John Tim Jenkins v. Commonwealth of Kentucky

RENDERED: APRIL 22, 2010
TO BE PUBLISHED

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2007-SC-000248-DG
i
DAT l
JOHN TIM JENKINS APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2006-CA-000158-MR
WOODFORD CIRCUIT COURT NOS. 04-CR-00005 & 04-CR-00034

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE SCHRODER

REVERSING AND REMANDING

Through this appeal, we recognize the admissibility of expert testimony

regarding suggestive interviewing techniques which can affect the reliability or

accuracy of a child witness's memory or recall . Consequently, because

significant evidence of improper methods existed in this case, the trial court

erred in denying the defense's request to call an expert witness on the subject .

Therefore, we reverse the conviction and remand for a new trial consistent with

this opinion .

In 2001, Appellant, John Tim Jenkins, a married father of three, became

a volunteer with the Central Kentucky Big Brothers program . At the time,

Jenkins was the Engineering Manager at the Osram Sylvania plant in

Versailles, Kentucky . Jenkins testified that he had been a Big Brother, and his
wife a Big Sister, many years earlier (before they had their own children), and

had enjoyed it. Jenkins testified that with his son leaving for college, and his

wife and two teenage daughters involved in dance (and not interested in going

to ballgames), he decided to get involved with Big Brothers again .

Jenkins completed the extensive Big Brothers application and screening

process, and was matched with a "little brother," J .S., then six years old, in

September, 2001 . J .S .'s parents were divorced . J .S . lived with his mother in

Woodford County, Kentucky, during the school year, and spent summers with

his father in Georgia. As his Big Brother, Jenkins would do various activities

with J .S., including taking him to ballgames, bike riding, swimming, and to the

movies. J .S . would also occasionally eat dinner at the Jenkins' home with

Jenkins and his wife and family. As part of Big Brothers' standard procedure,

periodic reviews were conducted with J .S . and his mother, concerning the

match with Jenkins . Neither J .S . nor his mother ever expressed any concerns .

In the reviews, the mother reported that J .S. talked about Jenkins a lot and

looked forward to their activities together, that J .S. had fun with Jenkins, and

that J .S . would be happy and excited after returning from his activities with

Jenkins . Jenkins had been J.S .'s Big Brother for two years, with no concerns .

The questionable events giving rise to this case began after work on

October 8, 2003, when Jenkins took J. S, then eight years old, and his friend

B .F., then six years old, on a planned swimming outing at the Falling Springs

Arts and Recreation Center in Versailles, Kentucky . Jenkins and the boys
arrived at approximately 7 :15 p.m. Jenkins and the boys first swam in the

smaller pool (the Center has two pools) . Brittany King and Megan Davenport,

two lifeguards on duty, became suspicious of the way Jenkins was playing with

the boys, in that he was swimming up under them and lifting them up out of

the water. King also thought it looked like Jenkins was "nibbling on their

thighs." King asked her supervisor, Greg Shanks, to observe . Shanks watched

Jenkins and the boys, and saw nothing of concern .

Nevertheless, King and Davenport continued to watch the three

attentively. After the three went to the big pool, King and Davenport again

observed Jenkins swimming up under the boys and lifting them out of the

water. They also thought Jenkins was kissing the boys on their faces and legs .

While the three were playing in the pool, there was another family in the pool,

the swim team and dive team were also practicing, and people were watching

from the bleachers . No one else expressed any concern about Jenkins and the

boys.

King and Davenport also expressed their concerns to the head lifeguard,

Roger Maybrier. Maybrier looked in on Jenkins and the boys in the pool . He

recognized that the three were playing a game of "shark" or "alligator," where

one person pretends to be the shark or alligator, and the others try to swim

across the pool without getting "eaten." Maybrier was not concerned.

When the three were finished swimming, Shanks followed them into the

locker room. Jenkins and J.S . were using the shower in the handicapped
shower stall, and B.F. was in the adjoining shower stall. The shower curtain

was not completely drawn, so Shanks looked into the shower. He could see

that Jenkins and J.S . were naked . Shanks did not see any physical contact

between the two . Shanks went to get Maybrier, and when the two came back,

B .F . had joined Jenkins and J .S. in the handicapped shower. Again, the

curtain was not all the way closed, and both looked in . J .S. was sitting on the

floor of the shower, B .F. was on one side of the shower, and Jenkins was on the

other side. They looked into the stall several times but never saw any physical

contact between Jenkins and either boy. Maybrier and Shanks decided to let

Jenkins know someone was in there, by being loud and opening and closing

lockers .

When the water stopped, B .F. came out of the shower first . Shanks

asked who he came with . B .F. said Jenkins was "Big Brother Big Sister."

Shanks asked B .F. if he was having a good time, and he said he was. Because

Jenkins was not a relative, Shanks and Maybrier suspected that something

"fishy" was going on, and called the police .

Police officers arrived at the pool at approximately 8 p.m., and

immediately separated Jenkins from the boys. Six-year-old B.F. was driven

home in a police car and turned over to his mother. Eight-year-old J .S . was

taken in a police car to the Versailles Police Department. Detective Rick Qualls

was on call, and arrived at the Versailles police station at approximately 10 :30

p .m . When Qualls arrived, J .S., scared and crying, was sitting in the break
room. Because the break room was noisy, Qualls decided to have J.S .

transported to the Woodford County police station, where it would be quieter.

J.S . was again taken in a police car, to the Woodford County police station,

arriving at about 11 :00 p.m. J.S . was scared and wanted his mother. A social

worker and J .S.'s mother arrived shortly thereafter . Qualls informed the,

mother that he was concerned J.S . may have been sexually abused because of

the lifeguards' suspicions, and because Jenkins had been reported nude in the

shower with J .S . Qualls basically testified that he thought he knew what

happened but that he needed to hear it from J.S.

Detective Qualls was not specialized in interviewing children . Qualls

began interviewing eight-year-old J .S. around midnight . His mother was not

allowed to be present during the interview. For the first half-hour, J.S. denied

that Jenkins had done anything sexually inappropriate.' Qualls would not

accept J .S .'s denials, and would not let him go home. After unrelenting and

suggestive questioning, J .S., who had been to school that day and was very

For example:
Qualls (referring to J.S. and Jenkins being in the shower): And did you touch
his private parts?
J. S . : No.
Qualls : Did he touch your private parts? _
J. S : No.
Qualls : What about when you were in the pool and you all were swimming?
J. S . : No.
Qualls : No? Someone told me that there may have been some touching
there.
J. S . : No .
tired, finally agreed with Qualls' suggestion that he had been touched once . 2

Qualls ended the interview around 1 :30-2 :00 a.m. and released J .S . to his

mother. Much of the interview was tape recorded. The next morning, Qualls

and the social worker visited J .S . at his home for a second interview, which

was tape recorded as well . J .S . agreed with Qualls' suggestion that there was a

second touching. On January 7, 2004, a four-count indictment was returned

against Jenkins . 3 The indictment charged two counts of first-degree sexual

abuse of J .S ., and two counts of indecent exposure for showering in the nude

in the presence of J .S . and B.F.

Following the allegations of October S, 2003, J.S. was put into sex abuse

therapy. J .S. saw a therapist at least once a week, and attended group therapy

as well. On March l, 2004, J .S . was taken to the Children's Advocacy Center,

where he was interviewed by a forensic interviewer. Based on statements

elicited in this interview, a second indictment was returned charging Jenkins

with two counts of sodomy . 4 The indictments were consolidated for trial.

At trial, the defense proposed to call Dr. Terence Campbell, a forensic

psychologist, to testify concerning improper interviewing techniques which can

result in unreliable reporting by child witnesses . Dr . Campbell had reviewed

2 Even though J.S. had denied any inappropriate touching up to this point, he was not given
the option of "none" : only once or more than once.
Qualls : You touched him just once . He touched you just once or has it been more than
once .
J.S. : Once .
3 No. 04-CR-00005
4 No. 04-CR-00034
all of the discovery provided by the Commonwealth, including the interviews of

J .S. He had prepared a lengthy report, and was prepared to testify as an

expert witness that improper methods were used in this case. The

Commonwealth objected to Dr. Campbell's proposed testimony. The trial court

held an extensive Daubert 5 hearing on the matter . Dr. Campbell testified at

length, both as to his qualifications as an expert, and as to the scientific

acceptance of the principle that suggestive interviewing techniques can affect

the reliability or accuracy of a child's memory or recall. Then, Dr. Campbell

analyzed the interviewing techniques used in this case, pointing out serious

improprieties .

Following the Daubert hearing, the trial court agreed with the

Commonwealth's objection to Dr. Campbell's testimony under a belief that,

notwithstanding compliance with Daubert, Kentucky law prohibited this type of

testimony . Because the trial court would not allow Dr. Campbell to testify, the

defense requested that the tape of the interviews be played for the jury, so that

the jury could decide if the allegations were made by J .S., or, only in response

to prompting and suggestions by Qualls . The Commonwealth objected to the

playing of the tape, and the trial court sustained the Commonwealth's

objection.

The trial court granted a directed verdict on the indecent exposure

charge involving B .F. Jenkins was found guilty of one count of first-degree

sexual abuse of J.S ., allegedly occurring on October 8, 2003, at Falling

5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U .S. 579 (1993) .
Springs, and one count of indecent exposure, as to J .S ., in the shower at

Falling Springs; and not guilty of all remaining charges. The trial court

sentenced Jenkins, in accordance with the jury's recommendation, to five years

on the sexual abuse conviction, and a $250 fine for indecent exposure .

Jenkins appealed his convictions to the Court of Appeals on a number of

grounds. The Court of Appeals held that Dr. Campbell's testimony was not

precluded by Kentucky law, and remanded to the trial court to make findings

under KRE 702 . The Court of Appeals rejected the other errors . Jenkins

moved for discretionary review, which we granted.6 The issues before this

Court are: the admissibility of expert evidence of suggestive interview

techniques with children; the admissibility of the interview tapes; and the

sufficiency of the evidence to support the indecent exposure conviction .

Because we are remanding for a new trial, the remaining issues are moot.

ADMISSIBILITY OF EXPERT TESTIMONY

Jenkins contends that the trial court erred in prohibiting his expert from

testifying at the trial regarding the suggestive interviewing procedures used in

this case . As stated earlier, the defense attempted to call Dr. Terence

Campbell, a highly qualified forensic psychologist, to provide expert testimony

on the scientific principle that improper interviewing practices can result in

6 The trial court held a full Daubert hearing, and there is a fully developed record on this issue
sufficient for appellate review of admissibility under KRE 702 . Therefore, a remand for the
purpose of further findings was not necessary . Miller v. Eldridge, 146 S .W .3d 909, 922 (Ky.
2004); Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002) . The Commonwealth does not
contend that a remand was necessary.
unreliable allegations, and the improper practices which were used in this

KRE 702 allows a qualified expert to testify in the form of an opinion or

otherwise with respect to scientific, technical, or other specialized knowledge,

provided that the testimony is scientifically reliable and will assist the trier of

fact to understand the evidence or to determine a fact in issue. This requires a

trial court to make a preliminary determination that the evidence is both

relevant and reliable . Goodyear Tire and Rubber Co. v. Thompson, 11 S .W.3d

575, 578 (Ky. 2000) . In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U .S .

579, 592-94 (1993), the United States Supreme Court set forth a non-exclusive

list of factors to be considered when assessing the reliability of an expert's

proferred testimony: (1) whether a theory or technique can be and has been

tested; (2) whether the theory or technique has been subjected to peer review

and publication ; (3) whether, with respect to a particular technique, there is a

high known or potential rate of error and whether there are standards

controlling the technique's operation; and (4) whether the technique enjoys

general acceptance within the relevant scientific, technical, or other specialized

community. Goodyear, 11 S .W .3d at 578-79 ; see also Toyota Motor Corp. v.

Gregory, 136 S .W.3d 35, 39-40 (Ky. 2004) .

The trial court held a Daubert hearing on Dr. Campbell's proposed

testimony. Dr. Campbell first testified to his qualifications . 7 Dr. Campbell had

7 Dr. Campbell testified that he received his Ph .D . in Human Development and Clinical
Psychology from the University of Maryland in 1970, and completed an internship in clinical
psychology at the National Institute of Mental Health in Washington, D.C. Since 1970, he has
prepared a thirty-eight page report which outlined the scientific principles

upon which he relied, and application of such to the interviews in this case,

which was entered as an exhibit by avowal . For purposes of this opinion, we

summarize Dr . Campbell's testimony at the Daubert hearing, and his lengthy

report: It is not only generally, but "absolutely", accepted in the psychological

community that young children are highly susceptible to suggestion, and that

improper interviewing methods create a serious risk of unreliable responses

and inaccurate recall, including false allegations of sexual abuse . Improper

interviewing techniques include interviewer bias, leading or suggestive

questions, coercive or "forced-choice" questions, repeated questions, and

repeated interviews .$ A child's memory and recall can become profoundly

researched and studied extensively in the area of human memory and recall, with emphasis in
the area of proper and improper questioning methods of children with regard to sexual abuse
allegations. Dr . Campbell has authored or co-authored five books related to forensic
psychology . He has authored or co-authored at least forty peer-reviewed articles in the area of
forensic psychology in general, and at least half a dozen peer-reviewed articles in the specific
area of suggestive interview techniques in child abuse cases, which have been published in
various professional and scientific journals. Dr Campbell acknowledged that he has been
recognized as an expert on the subject matter at issue in courts throughout the United States
and his testimony thereon admitted under the Daubert standard .

8 Detective Qualls went into the interview assuming that J.S. had been molested and seeking to
confirm this assumption . He would not accept J .S .'s denials as the truth. Qualls responded
favorably to J .S. when he would agree with what was suggested.

Dr. Campbell explained:

Investigative interviews can go astray when they respond to
interviewer bias pursuing one hypothesis and one hypothesis
alone . Under no circumstances [can interviewers] resort to
suggestive questions asked repeatedly. And when you start
directing variations of the same question to a child and asking
those question variations time and time again, you send a
message to the child that says I'm less than enthusiastic with
how you are answering this question . That's how children will
interpret it. And the child's interpretation is I've got to get this
right, and to get this right I have to change my answer. And
under those circumstances, without intending to, with no
distorted by such techniques . Once a child's memory has become distorted in

this way, rehabilitation through a later, proper interview is nearly impossible .

Dr. Campbell explained:

[Rehabilitation] is very, very unlikely because what
happens, when children are interviewed in a biased,
leading manner, [they] experience [what are] called
source monitoring problems[.] [T]he source monitoring
problems refer to the inability of the child to accurately
discriminate between on the one hand events that are
accurately recalled, versus on the other hand events
that are only imagined . So what happens is
inappropriate biased interviews suggest events to
children that they imagine . The more the children are
asked about these imaginary events, the more the
child visualizes the imaginary events . The more the
child imagines these imaginary events, the more
familiar the events become . As events become more
familiar, the child becomes genuinely and sincerely
convinced that he is reporting accurate recall when in
fact all he is doing is describing imaginary events that
have been suggested to him via repeated leading
suggestive questions. 9

Dr. Campbell testified that the aforementioned principles are based on

accepted science in the field of human memory and recall . The principles are

supported by longstanding and unanimous scientific research, can be and have

premeditated malice whatsoever, an interviewer can lead a child
into confirming the interviewer's apriori expectations that the
interviewer took into the interview.

9 Because the child truly believes the suggested version, cross-examination of a child whose
memory has been affected by suggestive interviewing is ineffective. See, e.g., State v. Sargent,
738 A.2d 351, 353 (N.H . 1999) ("Furthermore, if a child witness sincerely believes that the
suggested sexual abuse actually occurred, cross-examination of that child witness may not
effectively test the reliability of the child's recollection .") ; Barlow v. State, 507 S.E .2d 416, 418
(Ga. 1998) (recognizing that cross-examination may be ineffective where child sincerely believes
false recollections) ; State v. Kirschbaum, 535 N.W.2d 462, 467 (Wis. Ct. App. 1995) ("[C]ross-
examination of a child witness could be ineffectual if the child sincerely takes his or her
recollections to be grounded in facts and does not remember the improper interview procedures
which may have suggested them.") .
been empirically tested, and continue to be supported by accumulating

laboratory data . The principles have been subjected to peer review and

publication, and are not only generally, but emphatically, accepted in the

psychological community, and have been for years. Dr. Campbell's report,

entered as an exhibit to the Daubert hearing, expanded upon his testimony,

and included extensive citation to peer-reviewed research and specific studies

(and the methodology employed therein) and how the studies illustrated the

principles to which he testified .

Dr. Campbell then proceeded to apply these accepted principles to the

interviews in this case. Because this case is being remanded for retrial, it is

sufficient to say that, in his review of the interviews, Dr . Campbell identified

numerous instances of improper techniques, including interviewer bias, and

suggestive, leading, repeated, coercive and forced-choice questioning.

Following the hearing, the trial court ruled that, Daubert

notwithstanding, it did not believe that expert testimony of improper or

suggestive questioning of children was admissible in Kentucky, on grounds

that its purpose would be to show that a witness was not being truthful, which

would be an improper comment on credibility . It is well established that the

credibility of witnesses, including children, is a matter for the jury., See Estep

v. Commonwealth, 957 S .W.2d 191, 193 (Ky. 1997) . Credibility refers to

whether a witness is being truthful or untruthful . The proferred expert

testimony did not run afoul of this rule. Similar to expert testimony involving
eyewitness identification, expert testimony that a witness was subjected to

suggestive interview techniques pertains to the reliability or accuracy of the

witness's belief or recollection, not to the truthfulness or untruthfulness of the

witness. Cf. Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002) (expert

eyewitness identification testimony) . To the contrary, such evidence assumes

the witness is testifying truthfully - but may be mistaken in his or her belief.

Accordingly, the trial court erred in ruling the evidence was inadmissible as a

matter of law.

The Court of Appeals correctly noted that the analysis is simply whether

the expert evidence is admissible under KRE 702 . While this Court has not

had occasion to consider the admissibility of expert testimony on improper

interviewing techniques, numerous other jurisdictions which have done so

recognize expert testimony in this area be admissible . 10 See, e.g., Barlow v.

State, 507 S .E.2d 416 (Ga. 1998) (defendant in child molestation case entitled

to introduce expert testimony as to proper techniques for interviewing children

and whether the techniques actually utilized were proper) ; State v. Gersin, 668

N .E .2d 486 (Ohio 1996) (trial court erred in refusing to admit expert testimony

regarding established protocols for interviewing children); State v. Sloan, 912

S .W.2d 592 (Mo . Ct. App. 1995) (reversible error for trial court to exclude

to In Stringer v. Commonwealth, we held that the trial court did not err in excluding expert
testimony on suggestibility, because there was no evidence that any suggestive or improper
interview practices occurred . Hence, the testimony was irrelevant . 956 S.W.2d 883 (Ky. 1997).
In Pendleton v. Commonwealth, we held, applying the Snodgrass factors, that the trial court did
not err in denying a last minute continuance in order for a defendant to obtain an expert
witness on suggestibility . 83 S.W.3d 522 (Ky. 2002). Pendleton did not hold that such
testimony was inadmissible .
expert testimony on unreasonably suggestive interview techniques and

methods) ; United States v. LeBlanc, 45 F. App'x 393 (6th Cir . 2002) (recognizing

same Dr. Campbell's testimony met Daubert standard); State v. Wigg, 889 A.2d

233, 239 (Vt. 2005) ("[A] large majority of courts have held that the type of

general expert evidence introduced in this case, explaining the proper and

improper methods of examining children who may be victims of sexual assault,

is admissible."); State v. Speers, 98 P.3d 560, 562 (Ariz. Ct. App. 2004) ("[T]he

trial court erred by refusing to allow Defendant to present expert testimony on

the subject of the proper protocols for interviewing young children to avoid

suggestiveness and the implanting of false memories ."); Commonwealth v.

Delbridge, 855 A.2d 27 (Pa. 2003) (recognizing possible compromise of child

witness testimony due to suggestive questioning) ; State v. Michaels, 642 A.2d

1372, 1384 (N.J. 1994) ("Experts may thus be called to aid the jury by

explaining the coercive or suggestive propensities of the interviewing

techniques employed . . . .") ; State v. Sargent, 738 A.2d 351 (N .H . 1999)

(permitting expert testimony on the possibility of false memory implantation in

children through improper and suggestive interview techniques) ; State v.

Kirschbaum, 535 N .W.2d. 462, 466-67 (Wis . Ct. App. 1995) (recognizing utility

of expert testimony on suggestive interview techniques which can undermine

the reliability of a child's account of events) .

Having reviewed the extensive record in this case, including the Daubert

hearing and Dr. Campbell's report, we opine the trial court erred in excluding
his testimony . KRE 702 . Dr . Campbell was eminently qualified to testify as to

the subject matter (his qualifications were undisputed) . Dr. Campbell's

uncontroverted testimony and lengthy report clearly satisfied the Daubert

standard to establish the scientific reliability of the principle that suggestive

interviewing techniques can affect the reliability or accuracy of a child's

memory or recall . In fact, the Commonwealth does not dispute the scientific

reliability of Dr. Campbell's proposed testimony on appeal ." Dr. Campbell's

testimony was highly relevant, as there was significant evidence that improper

interviewing practices were used in this case . Stringer v. Commonwealth held it

was not error for the trial court to exclude the same Dr. Campbell's testimony

on grounds that the interviews were not recorded, and, without the interviews,

it would be mere speculation to conclude the interview techniques were

improper. 956 S .W .2d 883, 892 (Ky. 1997) . Hence, in Stringer, the expert

testimony was not relevant. Id. As the Court of Appeals recognized, this case

does not have the impediment of Stringer, because in this case, the interviews

were recorded. Dr. Campbell was able to review the recorded interviews, and

apply the science directly to the interviews . Finally, we conclude, as have

many of our sister states, that the testimony would assist the trier of fact, as

the theories and principles are not within the knowledge of the average juror.

11The Commonwealth in its brief before this Court agrees that Dr. Campbell could "testify that
certain studies have shown that improper questioning techniques, i.e., leading questions, can
result in unreliable reporting of sexual abuse by child witnesses." However, the
Commonwealth objects to Dr. Campbell's testifying that he reviewed the transcripts of the
interviews and that improper methods were, in fact, used upon J.S. in this case. Per Stringer,
however, it is the application of the principles to the facts of the case that makes the expert's
testimony relevant . Stringer, 956 S.W.2d at 892.
See Barlow, 507 S .E.2d at 417-18 (recognizing that effect of interviewing

techniques on children is a subject not within knowledge of a lay juror) ; State

v. Huntley, 177 P.3d 1001, 1008 (Kan. Ct. App. 2008) (recognizing that proper

protocols and interview techniques for children is a matter not within

knowledge of average juror) ; Sloan, 912 S .W.2d at 597 ("However, the crux of

[the expert's] testimony was intended to show that a substantial portion of the

questions asked by [the detective] . . . were `inappropriate .' This represents

evidence only an expert could give on matters not within the knowledge of a

juror.") (footnote omitted) ; Sargent, 738 A .2d at 354 ("Instead, we agree with

those jurisdictions that find that the proper protocols and techniques used to

interview child victim witnesses is a matter not within the knowledge and

understanding of the average juror.") ; Gersin, 668 N.E.2d at 488 ("Most jurors

lack the knowledge of accepted practices in interviewing child victims, and

expert testimony on the issue is therefore admissible .") ; Kirschbaum, 535

N .W.2d at 467 (how improper interview techniques may have affected reliability

of child's recollections is a subject with which a lay juror may be unfamiliar) .

Accordingly, the trial court erred in not allowing Dr. Campbell to testify

as to the suggestive interview techniques used in this case . There was no

evidence of sexual abuse, other than allegations which occurred only after

highly suggestive interviews conducted by the untrained Detective Qualls.

Accordingly, the error is not harmless, and we must reverse and remand for a

new trial.
 ADMISSIBILITY OF INTERVIEW TAPES

When the trial court would not allow Dr. Campbell to testify, the defense

sought to introduce the tape recordings of Detective Qualls' interviews with

J.S ., through Detective Qualls on cross-examination. The Commonwealth

objected on hearsay grounds. The defense explained that it was not offering

the recordings for the truth of the matter asserted therein (that the statements

made by Qualls and J .S. on the tapes were true) but for the non-hearsay

purpose of showing the suggestive and coercive manner in which the interviews

were conducted, and as proof of the unreliability of the allegations by showing

that they arose not from J.S., but as a result of suggestions and prompting by

the detective.

The trial court erred in not allowing the tape recordings to be introduced .

The taped interviews were not being offered for the truth of the matter asserted,

nor to impeach J. S . The tapes were offered as proof that the investigation was

flawed from the very beginning, by showing the coercive and suggestive manner

in which the interviews were conducted and the allegations obtained . This is a

proper, non-hearsay use . See Norton v. Commonwealth, 890 S .W.2d 632, 635

(Ky. App. 1994) . On retrial, the recorded interviews would be admissible.

INDECENT EXPOSURE

Jenkins was also convicted of indecent exposure, arising from testimony

that he removed his clothing and was naked in the presence of J.S . in the

shower at Falling Springs . Jenkins argues that the trial court should have
granted a directed verdict on this charge .

At the time of Jenkins' indictment, the indecent exposure statute read as

follows : "A person is guilty of indecent exposure when he intentionally exposes

his genitals under circumstances in which he knows or should know his

conduct is likely to cause affront or alarm ." KRS 510 .150. 12 On a motion for

directed verdict, the trial court must draw all fair and reasonable inferences

from the evidence in favor of the Commonwealth . Commonwealth v. Benham,

816 S.W .2d 186, 187 (Ky. 1991) . "On appellate review, the test of a directed

verdict is, if under the evidence as a whole, it would be clearly unreasonable for

a jury to find guilt, only then the defendant is entitled to a directed verdict of

acquittal ." Id.

Viewing the evidence in the light most favorable to the Commonwealth,

Jenkins, J .S ., and B .F. entered the Falling Springs locker room after swimming

to take a shower. Jenkins removed his swimming trunks, and showered in the

same handicapped stall as J .S., who had also removed his trunks . B.F. had

removed his trunks, and started showering in a different stall, but then joined

Jenkins and J .S. in the handicapped shower. There was no evidence that

Jenkins removed his swimming trunks for any purpose other than to take a

shower and change clothes . In addition, the boys' testimony provided no

evidence that the removal of Jenkins' swimming trunks had any effect on either

of them. Indeed, the two employees who were watching the three in the shower

12 The statute was amended
post-indictment to differentiate between first- and second-degree
indecent exposure based on the age of the victim . See 2004 Ky. Acts 190; KRS 510 .148
(indecent exposure in the first degree) ; KRS 510.150 (indecent exposure in the second degree).
described the three as taking showers in the nude. Male nudity in a men's

locker room with showers is certainly not unusual, and standing alone, it is not

likely to cause affront or alarm, and is not a crime.

Because the Commonwealth did not present evidence that would prove

all elements of indecent exposure, only nudity in a public shower, it would be

clearly unreasonable for a jury to find guilt. Accordingly, the trial court erred

in denying a directed verdict on this charge.

For the foregoing reasons, we reverse Jenkins' convictions and remand

the case to the trial court for a new trial consistent with this opinion .

Minton, C .J . ; Cunningham, Noble, Schroder, Scott, and Venters, JJ.,

sitting. All concur. Abramson, J., not sitting.

COUNSEL FOR APPELLANT:

J. Guthrie True
Samuel Ryan Newcomb
Johnson, True 8v Guarnieri, LLP
326 West Main Street
Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

David Wayne Barr
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204