Commonwealth of Kentucky v. Cory Moss

Opinion

RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-1345-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 24-CR-001405

CORY MOSS APPELLEE

OPINION

AFFIRMING IN PART,

REVERSING IN PART, AND REMANDING

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BEFORE: THOMPSON, CHIEF JUDGE; L. JONES AND TAYLOR, JUDGES. THOMPSON, CHIEF JUDGE: The Commonwealth of Kentucky (Appellant) appeals from an October 9, 2025, order and an October 13, 2025, supplemental order of the Jefferson Circuit Court excluding statements made by Maurissa Robinson (Robinson) to emergency medical service (EMS) and emergency room (ER) personnel. Appellant argues that these statements were nontestimonial and

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thus were not barred by the Confrontation Clause. It also argues that these statements fall within the hearsay exception for statements made for medical treatment or diagnosis. After careful review, we conclude that Robinson’s statements were made for the purpose of medical diagnosis and treatment; therefore, they were nontestimonial and potentially admissible if they fall within a relevant hearsay exception. For the reasons stated below, we affirm the October 9, 2025, order, and reverse and remand the October 13, 2025, supplemental order.

FACTS AND PROCEDURAL HISTORY In 2025, a Jefferson County grand jury indicted Cory Moss (Appellee)

on one count each of burglary in the first degree, strangulation in the first degree, assault in the fourth degree, and criminal mischief in the second degree for conduct alleged to have occurred on May 20, 2024.1 It was alleged that Appellee broke into Robinson’s apartment and strangled her causing physical injury. Robinson is described in the record as Appellee’s ex-girlfriend. At the time of Appellee’s alleged entry into Robinson’s apartment, she was on the phone using the Facetime app with a third party who heard Robinson screaming for help and called the police. The officers from the Jeffersontown Police Department (JPD) arrived and arrested Appellee.

1 Kentucky Revised Statutes (KRS) 511.020; KRS 508.170; KRS 508.030; and KRS 512.030.

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When police officers placed Appellee in the back of a police car, he allegedly damaged it by kicking the interior rear passenger door. The police summoned EMS to the scene to evaluate both Appellee’s and Robinson’s injuries. Robinson allegedly told EMS personnel that Moss had climbed through her apartment window and assaulted her. When Robinson arrived at the ER, she again allegedly told medical personnel that Appellee had strangled her. One of those personnel included a Sexual Assault Nurse Examiner (SANE) nurse.

Trial was set for October 14, 2025. Prior to trial, Appellant informed Appellee’s counsel that Robinson was uncooperative and would not testify at trial. Appellee then moved to exclude all out of court statements made by Robinson to the police, EMS, ER doctors, and ER nurses. After initially ruling that statements to medical personnel, but not the police, were excluded from trial, the circuit court subsequently ruled that all statements to the police and medical personnel “involving her being choked or strangled” were excluded.2 As a basis for this ruling, the court determined that such statements were barred by the Confrontation Clause because they were testimonial in nature, i.e., they were not made during an emergency for the purpose of receiving medical treatment. The court noted that

2 In its October 9, 2025, order, the circuit court addresses Appellee’s statement to the police, and rules that Robinson’s statement to the SANE nurse should be excluded. In the October 13, 2025, order, the court excluded Robinson’s statements to all medical personnel, including the SANE nurse, “involving her being choked or strangled” because there was no ongoing emergency since the ambulance did not arrive with lights and sirens.

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EMS arrived “code 1” which signaled a non-emergency incident, and that EMS arrived without emergency lights and siren. This appeal followed.3 STANDARD OF REVIEW

The standard for reviewing evidentiary rulings is abuse of discretion.

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

ARGUMENTS AND ANALYSIS

Appellant argues that the Jefferson Circuit Court erred in failing to conclude that Robinson’s statements to EMS, ER doctors, and ER nurses were nontestimonial, and thus not barred by the Confrontation Clause. Appellant asserts that Robinson told EMS and ER personnel that she was assaulted and strangled. According to Appellant, since these statements were made for the purpose of receiving medical treatment – and not for building the criminal prosecution against Appellee – they were nontestimonial and not barred by the Confrontation Clause.

Appellant directs our attention to the Confrontation Clause of the United States Constitution, set out at U.S. CONST., Amend. VI, which guarantees that a criminal defendant has the right “to be confronted with the witnesses against

3 Appellant may appeal interlocutory trial orders via Kentucky Revised Statutes (KRS) 22A.020.

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him[.]” Section 11 of the Kentucky Constitution “provid[es] identical protection.” Johnson v. Commonwealth, 718 S.W.3d 597, 614 (Ky. 2025). Citing Smith v. Arizona, 602 U.S. 779, 783-84, 144 S. Ct. 1785, 1791, 219 L. Ed. 2d 420 (2024), Appellant asserts that the purpose of the Clause is to protect “a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom.”

According to Appellant, the Confrontation Clause prohibits the introduction of testimonial hearsay, i.e., out-of-court statements made for the purpose of incriminating the defendant, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine them. In contrast, Appellant argues that nontestimonial hearsay, that is, out-of-court statements made for another purpose, may be admissible regardless of whether the witness is available or was previously cross-examined. Here, Appellant argues that Robinson’s statements were clearly nontestimonial because they were statements made as part of her medical treatment, and were not made to incriminate Appellee. As such, Appellant maintains that Robinson’s statements to the EMS and ER personnel should be admissible at trial irrespective of whether Robinson is available for cross-examination.4

4 Appellant does not challenge the exclusion of Robinson’s statements made to the JPD or the SANE nurse.

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The Confrontation Clause of the United States Constitution guarantees that a criminal defendant has the right “to be confronted with the witnesses against him” at trial. U.S. CONST., Amend. VI. The Clause does not allow “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). The Confrontation Clause also prohibits the introduction of testimonial hearsay, i.e., out-of-court statements made for the purpose of incriminating the defendant, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Davis v. Washington, 547 U.S. 813, 823-25, 126 S. Ct. 2266, 2274, 165 L. Ed. 2d 224 (2006).

In contrast, “nontestimonial” statements – those statements made outside of court for another purpose – are not inadmissible under the Confrontation Clause regardless of whether the witness is available or was previously cross- examined. Crawford v. Washington, 541 U.S. at 68, 124 S. Ct. at 1374. Thus, whether the Confrontation Clause bars an out-of-court statement “depends on the purpose for which” the statement was made. Manery v. Commonwealth, 492 S.W.3d 140, 145 (Ky. 2016).

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The circuit court based its conclusion that Robinson’s statements to EMS and ER personnel were testimonial rather than nontestimonial on its finding that there was no ongoing emergency when Robinson made the statements. The question for our consideration, then, is whether the Jefferson Circuit Court properly determined that Robinson’s statements were testimonial and not admissible. That is, we must consider whether that conclusion was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945.

In Grady v. Commonwealth, 325 S.W.3d 333, 356-58 (Ky. 2010), the Kentucky Supreme Court provided a detailed analysis of testimonial versus nontestimonial statements. The high Court noted that Crawford provided no guidance on the definition of testimonial, and, instead, looked to Davis. Davis noted that statements to police were nontestimonial if the purpose of the police interrogation was to meet an ongoing emergency. The Kentucky Supreme Court further noted that neither Crawford nor Davis gave direction on whether statements made to laypersons were testimonial, which is at issue herein.

The Court in Grady went on to state that, “in Hartsfield,[5] we found that the hearsay statements at issue ‘made to lay witnesses, do not fit within the Crawford and Davis formulation of testimonial statements[,]’ but we went on to

5 Hartsfield v. Commonwealth, 277 S.W.3d 239, 245 (Ky. 2009).

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apply the four factors outlined in Davis.” Grady, 325 S.W.3d at 357. Those four factors are:

(1) whether the events spoken about were actually happening, or were past events; (2) the presence of an ongoing emergency; (3) whether what was asked and answered was for the purpose of resolving the situation, rather than simply learning what had happened in the past; and (4) the level of formality in the interview.

Id. at 356 (citing Davis, 547 U.S. at 827, 126 S. Ct. at 2276).

In Grady, the statements at issue were made by tenants who were questioned by their landlord about what had happened, and the landlord was recounting those statements during the trial. At the time the landlord was asking her questions of the tenants, the defendant had already been arrested so there was no ongoing emergency. Nevertheless, the tenants were excited and upset by the event so the excited utterance hearsay exception applied if the statements were not testimonial. The Court noted that the statements were not made to law enforcement, that they were informal and not obtained under interrogative circumstances, that

the statements were solicited by [the landlord] out of concern for her property and her tenants[’] wellbeing rather than from a desire to retrieve testimony that may be used against [the Defendant] at trial[, and, therefore,]

an objective observer would not consider the primary purpose of the solicitation [of the tenants by the landlord]

was for the purposes of a future prosecution.

Id. at 357-58 (citation omitted).

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Furthermore, in Manery, 492 S.W.3d at 145, the Kentucky Supreme Court drew a distinction between “testimonial medical records and those intended for medical treatment.” Citing yet another United States Supreme Court case, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), our Kentucky Supreme Court determined that medical records for treatment purposes are not testimonial. Manery, 492 S.W.3d at 145. The Manery Court also compared the situation in Manery, i.e., a DNA report from a swab obtained through a search warrant, with the situation in another Kentucky case, Little v. Commonwealth, 422 S.W.3d 238 (Ky. 2013), in which a blood alcohol screen was obtained from a defendant brought to the hospital for treatment following an accident with suspected drunk driving. The Court determined the primary purpose of the DNA swab and report was to obtain evidence for the prosecution of Manery, while the primary purpose of the blood alcohol report was to provide proper medical treatment for Little.

Returning to the matter before us, when applying the four Grady factors, we conclude that Robinson’s statements to medical personnel were nontestimonial because they were made for the purpose of medical evaluation and treatment. That is to say, (1) though Robinson was describing a choking event from the past, the statements were made as the medical evaluations were actually happening; (2) the medical evaluation was emergent; (3) the statements were made

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for the purpose of resolving Robinson’s medical situation, rather than simply learning what had happened in the past; and, (4) Robinson was not being formally interviewed.

Further, Robinson could not communicate the nature of her injuries to medical personnel without stating that she had been choked or strangled. These communications are somewhat analogous to the blood alcohol report in Little, in that both were made for the purpose of medical treatment rather than to lay the groundwork for prosecution. Robinson’s statements, therefore, were not testimonial and should not be excluded on that basis – though statements identifying Appellee as the assailant would be rightly excluded because they were not relevant to Robinson’s medical treatment.

Having determined that Robinson’s statements to EMS and ER personnel were not testimonial, the remaining question is whether the statements are admissible under a relevant hearsay exception. As noted by the Commonwealth, this question was not addressed by the circuit court because Robinson’s statements were found to be inadmissible under the Confrontation Clause. Having not been addressed below, the application of a hearsay exception, if any, is not ripe for adjudication on appeal. See generally Brooks v. Byrd, 487 S.W.3d 913, 919 (Ky. App. 2016). Therefore, on remand, the circuit court should

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consider whether Robinson’s statements are admissible under a relevant hearsay exception.

CONCLUSION

In its October 9, 2025, order, the circuit court ruled that Robinson’s statement to the SANE nurse should be excluded. We affirm the October 9, 2025, order because the Commonwealth does not challenge this ruling. We reverse and remand the Jefferson Circuit Court’s October 13, 2025, supplemental order, which excluded Robinson’s statements to EMS and ER personnel that she was choked or strangled. On remand, the Jefferson Circuit Court should rule upon the question of whether Robinson’s statements to EMS and ER personnel, other than those made to the SANE nurse, are admissible under a hearsay exception.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Russell Coleman Molly Mattingly Attorney General of Kentucky Assistant Public Advocate Louisville, Kentucky

Ryan D. Mosley Assistant Solicitor General Frankfort, Kentucky