RENDERED: JUNE 15, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0427-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-1148 SCOTT CIRCUIT COURT NO. 17-CR-00269
KAYLA MELTON APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING AND REMANDING
The Scott Circuit Court excluded evidence of a guardianship order in a
criminal prosecution against Kayla Melton for custodial interference and other
related charges. A divided panel of the Court of Appeals concluded the trial
court acted within its discretion to exclude the evidence because Melton’s
custodial rights as a biological parent were superior to any rights arising from
the guardianship. Consequently, the majority concluded the evidence of
guardianship would unduly prejudice Melton by confusing the jury. We
granted discretionary review. Having carefully considered the law, record, and
arguments of the parties, we reverse the Court of Appeals and remand to the
Scott Circuit Court for further proceedings.
Before recounting the facts and procedural history of the present appeal,
we note Melton has accepted the Commonwealth’s statement of the facts leading to the trial court’s decision with the proviso “that this appeal deals with
a pretrial motion and no factfinder has yet affirmed the facts as alleged in the
record, and that Ms. Melton is not presently convicted of any charge.”
Therefore, for the purposes of our interlocutory review, we rely on the
Commonwealth’s statement of the case and our own review of the record.
Melton is the biological mother of T.K., a minor child. John Niemeier is
T.K.’s biological father, although Niemeier was not listed on the birth
certificate. Melton listed the name of her then-current boyfriend on the birth
certificate. Following the child’s birth, Melton and the child resided with
Niemeier and his parents. Niemeier and Melton later moved with the child into
an apartment of their own. In March 2014, they returned to live with
Niemeier’s parents. At some point, Niemeier and Melton ended their
relationship. The child has resided with Niemeier and his girlfriend, Erica
Osborne, since October 2016.
On July 17, 2017, the Scott District Court granted full guardianship of
T.K. to Niemeier. Apparently, Melton agreed to grant limited guardianship of
the child to Niemeier. However, when Melton failed to appear at the hearing,
the district court awarded full guardianship to Niemeier.
On August 18, 2017, Melton allegedly broke into the residence of
Niemeier’s parents, where Osborne and T.K. were visiting, and assaulted
Osborne before fleeing with the child. Osborne suffered bruising on her head,
face, and arms. A Scott County Grand Jury indicted Melton on charges of first-
degree burglary, custodial interference, and third-degree criminal mischief.
2 The indictment was later amended to include a charge of first-degree wanton
endangerment.
Melton filed a motion in limine to exclude any reference to the
guardianship order, asserting it was irrelevant or would be unduly prejudicial
because guardianship is not equivalent to custody. The Commonwealth
responded in opposition, arguing the guardianship order granted custody of
the child to Niemeier such that Melton had no right to take the child.
Following a hearing, the trial court entered a written order granting Melton’s
motion to exclude the guardianship order. The Commonwealth subsequently
moved to amend the order and requested additional findings. The trial court
upheld its prior ruling and made additional findings in an order entered on
July 27, 2020. The Commonwealth filed a timely notice of appeal.1
A divided panel of the Court of Appeals affirmed. Based upon its review
of Kentucky caselaw, the majority concluded “Melton’s custody of T.K. at the
time of the incident leading to the criminal charges was superior to Niemeier’s
guardianship by virtue of her status as his biological mother.” The majority
further stated “[t]here is no indication that Niemeier’s status as a guardian
gave him the legal right to keep T.K. away from Melton.” Accordingly, the
majority held “the trial court did not abuse its discretion in deciding that
1 Kentucky Revised Statutes (KRS) 22A.020 authorizes the Commonwealth to pursue an interlocutory appeal from “an adverse decision or ruling” of the circuit court in a criminal case.
3 evidence of Niemeier’s guardianship was of limited probative value and could
potentially confuse the jury.”
In dissent, then-Judge Kelly Thompson viewed the guardianship order as
highly relevant to the custodial interference charge and opined any potential
confusion could be remedied by an admonition, rather than complete exclusion
of the order. The dissent stated the exclusion of the guardianship order would
mislead the jury because the jury would lack critical information explaining the
reasons why the child was residing in the care of Niemeier. The dissent also
argued the Commonwealth was entitled to present a complete picture of the
crimes charged, including relevant background information. We granted the
Commonwealth’s motion for discretionary review.
As a preliminary matter, Melton argues the trial court’s order excluding
the evidence of guardianship should be summarily affirmed because the
Commonwealth failed to ensure the guardianship order was included in the
appellate record. We conclude there is sufficient record to review the
Commonwealth’s claim of error on the merits.
The appellant has the duty to present a complete record on appeal.
Commonwealth v. Thompson, 697 S.W.2d 143, 144 (Ky. 1985). When
presented with an incomplete record, a reviewing court “must assume that the
omitted record supports the decision of the trial court.” Id. at 145. This Court
“will not engage in gratuitous speculation . . . based upon a silent record.” Id.
Melton cites McDaniel v. Commonwealth, 341 S.W.3d 89, 96 (Ky. 2011),
in support of her argument that the trial court’s order should be summarily
4 affirmed. In McDaniel, we refused to consider whether the admission of
multiple autopsy photographs unduly prejudiced the defendant in a murder
trial because the defendant failed to include the photographs in the appellate
record. Id. In the absence of the photographs, we were “unable to assess the
prejudicial value of the photographs.” Id.
McDaniel is distinguishable from the present appeal because of the
nature of the evidence at issue. The danger of undue prejudice associated with
autopsy photographs lies in the gruesome and repulsive nature of the
photograph’s content. See Ragland v. Commonwealth, 476 S.W.3d 236, 248
(Ky. 2015). Therefore, any determination of the photographs’ prejudicial effect,
in the absence of the photographs, would be speculative.
On the contrary, in the present appeal, the substance of the offered
evidence is known although the actual evidence was not presented to the trial
court for consideration. See Lanham v. Commonwealth, 171 S.W.3d 14, 22 (Ky.
2005) (citing KRE 103 cmt. Subdivision (d) (1992)).”2 Custody, within the
meaning of KRS Chapter 387, is incident to any award of guardianship over a
minor. KRS 387.010(3)-(4); KRS 387.065(2); see also 39 C.J.S. Guardian &
Ward § 56. The existence of the guardianship order is not in dispute. The
basis of the trial court’s evidentiary ruling was a legal conclusion concerning
the legal effect of the relationship between guardianship and custody. The trial
court concluded the guardianship evidence would confuse the jury “[b]ased on
2 Kentucky Rules of Evidence.
5 the statutes and long-standing case law of Kentucky.” Likewise, the Court of
Appeals’ majority based its conclusion on the application of caselaw. As such,
the question of admissibility presented by this appeal centers on the legal effect
of a guardianship order as opposed to the adequacy of a preliminary factual
finding. See KRE 104. Therefore, we conclude there is an adequate basis to
conduct our review.
While the nature of the guardianship order permits review in the context
of the present appeal, appellate review concerning the admissibility of judicial
records may not be equally available in other circumstances. We share the
view of the Court of Appeals that our review is hampered by the incomplete
record. When evidence has been excluded, the proponent of the evidence, to
the extent practicable in the pre-trial context, should tender an offer of proof to
facilitate appellate review even if the substance of the evidence has otherwise
been made known to the trial court. See Slone v. Commonwealth, 382 S.W.3d
851, 856 (Ky. 2012).
The Commonwealth argues the majority of the Court of Appeals’ panel
improperly analyzed the admissibility of the guardianship order under KRE
403. Specifically, the Commonwealth argues the majority improperly focused
on the relationship between custody and guardianship without undertaking a
complete KRE 403 analysis. We agree.
A criminal defendant is entitled to present a complete defense. Likewise,
the Commonwealth is entitled “to present a complete, un-fragmented, un-
artificial picture of the crime committed by the defendant, including necessary
6 context, background and perspective.” Major v. Commonwealth, 177 S.W.3d
700, 708 (Ky. 2005). “[W]here evidence is needed to provide a full presentation
of the offense, or to ‘complete the story of the crime,’ . . . there is no reason to
fragment the event by suppressing parts of the res gestae.”3 Webb v.
Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012). Additionally, the prosecution
is permitted to introduce evidence that would “tend to prove any element of the
charged crime.” See United States v. Senffner, 280 F.3d 755, 764 (7th Cir.
2002) (cleaned up).
The Court of Appeals’ majority did not question the relevance of the
guardianship order and proceeded directly to analyze the evidence under KRE
403. KRE 403 provides for the exclusion of otherwise relevant evidence “if its
probative value is substantially outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” Our Kentucky rule is
“virtually identical” to FRE4 403. Anderson v. Commonwealth, 281 S.W.3d 761,
764, n.10 (Ky. 2009). As such, federal decisions interpreting FRE 403 may be
appropriately considered as persuasive authority. See Kerr v. Commonwealth,
400 S.W.3d 250, 261 (Ky. 2013). The danger arising from “confusion of the
issues” refers to “evidence that creates side issues that distract jurors from the
3 “Res gestae” means “[t]he events at issue, or other events contemporaneous with them.” Res Gestae, Black’s Law Dictionary (11th ed. 2019). 4 Federal Rules of Evidence.
7 real issues of the case.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705,
715 (Ky. 2009).
When a party seeks to exclude relevant evidence under KRE 403, a trial
court must: (1) assess the probative value of the evidence; (2) assess the “the
probable impact of specified undesirable consequences likely” to result from
the admission of the evidence; and (3) determine whether the harmful effects of
the evidence exceed its probative value. Webb v. Commonwealth, 387 S.W.3d
319, 326 (Ky. 2012) (quoting Partin v. Commonwealth, 918 S.W.2d 219, 222
(Ky. 1996)). The exclusion of relevant evidence under KRE 403 is an
extraordinary remedy that should be employed sparingly. Robert G. Lawson,
The Kentucky Evidence Law Handbook, 2.15[2][b] at 104 (2020 ed.). Professor
Lawson has indicated any doubts should be resolved in favor of admissibility.
Id. The “tilt toward admission over exclusion” is “very powerful.” Id. Further,
in the criminal context, “it is a sound rule that the balance should generally be
struck in favor of admission when the evidence indicates a close relationship to
the offense charged.” United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978)
(citing McCormick on Evidence (2d ed. 1972) p. 453 n. 55.). Our predecessor
Court recognized the weight of authority in favor of admissibility and
approvingly cited Judge Learned Hand:
The exclusion of evidence, which does not too much entangle the issues and confuse the jury, merely because of its logical remoteness from the issue, is always a hazard, and is usually undesirable. It is always hard to say what reasonable people may deem logically material, and all doubts should be resolved in favor of admission, unless some definite rule, like that against hearsay, makes that impossible.
8 Commonwealth v. Hillebrand, 508 S.W.2d 566, 568 (Ky. 1974) (quoting United
States v. Matot, 146 F.2d 197, 199 (2nd Cir. 1944) (emphasis added)).
We review evidentiary rulings for abuse of discretion. Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). The “test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Id. While a trial court possesses
broad discretion to resolve evidentiary disputes, “[t]his discretionary power
does not, however, allow the Trial Court to exclude competent evidence which
is essential and vital to a litigant’s case unless there is a sound practicable
reason for barring it.” Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716
F.2d 373, 378 (6th Cir. 1983) (quoting Bailey v. Kawasaki-Kisen, K.K., 455
F.2d 392, 398 (5th Cir. 1972)). Specifically, on review of a trial court’s ruling
under KRE 403, we must “view the evidence in the light most favorable to its
proponent, giving the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Major, 177 S.W.3d at 707 (citing
Turpin v. Kassulke, 26 F.3d 1392, 1399-1400 (6th Cir. 1994)).
To determine whether evidence of the guardianship order would unduly
prejudice Melton by confusing the jury, we must examine the elements of the
custodial interference statute considering the specific circumstances of the
underlying case. KRS 509.070 sets forth the elements of custodial interference
as follows:
(1) A person is guilty of custodial interference when, knowing that he has no legal right to do so, he takes, entices or keeps from
9 lawful custody any mentally disabled or other person entrusted by authority of law to the custody of another person or to an institution.
(2) It is a defense to custodial interference that the person taken from lawful custody was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest.
(3) Custodial interference is a Class D felony unless the person taken from lawful custody is returned voluntarily by the defendant.
“Custodial interference statutes are intended to protect any custodian
from deprivation of his or her rights.” Karsner v. Commonwealth, 582 S.W.3d
51, 54 (Ky. App. 2018). Neither KRS 509.010 nor KRS 500.080 defines the
terms “lawful custody” or “entrusted by authority of law to the custody of
another person.” However, Model Penal Code § 212.4, upon which KRS
509.070 is based, specifically references interference with “the custody of [a]
parent, guardian or other lawful custodian.”
Indeed, Kentucky law recognizes guardianship as a form of lawful
custody. KRS 387.010(3) defines “guardian” to mean “an individual, agency, or
corporation appointed by the District Court to have care, custody, and control
of a minor and to manage the minor’s financial resources.” KRS 387.065(2)
mandates a guardian to “take custody of the person of the ward and establish
the ward’s place of abode within the Commonwealth.” There is no difference
between a guardian and a limited guardian with respect to the right to custody
of the ward’s person. Compare KRS 387.010(3)-(4). A guardian stands in loco
parentis. Rudd v. Fineberg’s Trustee, 277 Ky. 505, 126 S.W.2d 1102, 1103
(1939). Nevertheless, the appellate courts of Kentucky have long recognized
the superiority of parental custody rights to the rights of guardianship when 10 confronted with competing claims. Mason v. Williams, 165 Ky. 331, 176 S.W.
1171, 1173 (1915).
Any reliance on Hicks v. Halsey, 402 S.W.3d 79, 83 (Ky. App. 2013) and
R.T. v. D.R., No. 2008–CA–000559–ME, 2008 WL 4754829 at *4 (Ky. App. Oct.
31, 2008), to justify the exclusion of the guardianship evidence in the present
case is misplaced. Both decisions involved a direct custody dispute between a
parent and guardian. Neither decision concerned the admissibility of a
guardianship order in a subsequent criminal proceeding. Further, the Hicks
decision simply held “guardianship is not the equivalent of custody” such that
a mother’s motion to set aside a guardianship order does not constitute the
commencement of an action to regain custody for the purpose of tolling the
time period for establishing de facto status. 402 S.W.3d at 83. The Hicks
decision did not hold that guardianship evidence carries little probative value
in a custody decision. On the contrary, guardianship evidence was highly
relevant to establishing whether the guardian was the child’s primary
caretaker.
The Hicks Court cited R.T. for the proposition a voluntary guardianship
agreement between a mother and a non-parental couple did not divest the
mother of her superior custody rights. Id. While a guardianship may not
divest a parent of superior custody rights, it does not necessarily follow that a
guardian, by definition, lacks any colorable claim to custody. In recognizing
that a guardianship does not divest a parent of superior custody rights, the
Court of Appeals acknowledged a guardianship agreement involves some
11 degree of formal relinquishment of custody. R.T., 2008 WL 4754829 at *4.
Therefore, the inequivalence between parental custody and guardianship is a
matter of priority and degree. Any dissimilarity between parental custody and
guardianship does not equate to undue prejudice in the context of the present
appeal.
To find Melton guilty of custodial interference, the Commonwealth must
produce sufficient evidence that, knowing she had no right to do so, she
engaged in “overt conduct” that interfered with Niemeier’s lawful custody.
Karsner, 582 S.W.3d at 54. This Court has directly held a jury is entitled to
determine the essential elements of a criminal offense. Thacker v.
Commonwealth, 194 S.W.3d 287, 290 (Ky. 2006) (first citing Apprendi v. New
Jersey, 530 U.S. 466, 477 (2000); then citing United States v. Gaudin, 515 U.S.
506, 511-15 (1995)); called into doubt on other grounds by Harp v.
Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008).
For example, in the context of a persistent felony offender (PFO)
sentencing enhancement, the admissibility of a defendant’s prior conviction
depends on “proof of the fact of ‘previous felony convictions’ and not their
underlying validity.” McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky.
1994). A collateral attack on the validity of a prior conviction is not a basis to
exclude the conviction from evidence. Id. We have also held a defendant “may
not launch a collateral attack on the validity of an emergency protective order
in a subsequent prosecution for violation of that order.” Wood v.
Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005). Additionally, “validity of a
12 domestic violence order (DVO) is not a proper subject of inquiry when it is
offered as proof of an aggravating circumstance in a capital murder prosecution
or to prove the criminal violation of the DVO.” Id. at 512 (quoting Gutierrez v.
Commonwealth, 163 S.W.3d 439, 442 (Ky. 2005)). “[W]hether a court order is
right or wrong, it is the duty of the parties to abide by its mandates so long as
it remains in effect.” Id. The same reasoning applies to whether proof of a
guardianship order is competent evidence in a prosecution for custodial
interference.
Indeed, far from distracting the jury from the “real issues,” the
guardianship evidence is essential and vital to the Commonwealth’s case
because it concerns an essential element of custodial interference. As such,
the resolution of this issue on a pre-trial evidentiary ruling is premature and
inappropriate. Moreover, the absence of the evidence would produce a baffling
lacuna in the story of the crimes alleged. The guardianship order provides
crucial context explaining the child’s presence at the residence of Niemeier’s
parents during the alleged offenses. Without this context, the Commonwealth’s
ability to convict Melton on the remaining charges may also be imperiled
because the jury’s perception of the parties’ actions in relation to the child
would necessarily be skewed. In other words, the exclusion of the
guardianship evidence would tend to mislead and confuse the jury in equal
measure as its admission. As then-Judge Thompson aptly stated in his
dissenting opinion:
Simply put, the majority opinion and the circuit court are focused on the wrong thing by evaluating whether custody is superior to 13 guardianship and then using this analysis to justify excluding such evidence. Whether or not custody is superior to guardianship, such a legal conclusion is not an adequate basis for prohibiting the introduction of the guardianship order.
Melton, No. 2020-CA-1148-MR, 2021 WL 3935374 at *5 (Thompson, J.,
dissenting).
Based upon the foregoing, we conclude the trial court abused its
discretion by failing to apply the proper KRE 403 analysis. The scope of
the present opinion is limited to the admissibility of the guardianship
evidence. We express no opinion on the ultimate resolution of the
underlying charges.
Accordingly, we reverse the opinion of the Court of Appeals and
remand to the Scott Circuit Court for further proceedings consistent with
this opinion.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting.
Bisig, Conley, and Lambert, JJ., concur. VanMeter, C.J., dissents by separate
opinion which Keller, J., joins. Thompson, J., not sitting.
VANMETER, C.J., DISSENTING: I respectfully dissent. To begin, no one
should interpret this dissent as countenancing, to any degree, the apparent
actions of Melton in breaking into a residence and assaulting someone to gain
access to her child. The only issue in this appeal is whether the trial court
abused its discretion in suppressing evidence of a district court order granting
guardianship of that child to Niemeier.
The trial court has a general obligation as evidentiary gatekeeper to
screen evidence to ensure that the jury does not hear irrelevant or inadmissible 14 evidence. See, e.g., Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)
(acknowledging “the trial court's unique role as gatekeeper of evidence”);
Dunnaway v. Commonwealth, No. 2019-SC-0730-MR, 2021 WL 234773, at *2–
3 (Ky. Jan. 21, 2021) (“[W]e are unconvinced the trial court abdicated its role
as gatekeeper in this evidentiary matter[.]”); Leatherman v. Commonwealth, 357
S.W.3d 518, 529 (Ky. App. 2011); Kentucky Rule of Evidence (KRE) 402
(“Evidence which is not relevant is not admissible.”); KRE 103(c) (“Hearing of
jury. In jury cases, proceedings shall be conducted, to the extent practicable,
so as to prevent inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking questions in the
hearing of the jury.”). “Trial courts enjoy substantial discretion in admitting or
excluding evidence at trial. Indeed, there are many instances where a trial
court will not err regardless of whether the evidence is admitted or excluded
because of this broad discretion.” Daugherty v. Commonwealth, 467 S.W.3d
222, 231 (Ky. 2015). Those evidentiary determinations will be reversed on
appeal only if shown to be arbitrary, unreasonable, or unsupported by sound
legal principles. Gaither v. Commonwealth, 521 S.W.3d 199, 205 (Ky. 2017).
As a result of the incident at the heart of this matter, Melton has been
indicted for custodial interference. To prove this crime, the Commonwealth is
required to show that an individual, “knowing that he has no legal right to do
so, [] takes, entices or keeps from lawful custody any mentally disabled or other
person entrusted by authority of law to the custody of another person or to an
institution.” KRS 509.070(1). A guardian of a minor child is defined as an
15 individual “appointed by the District Court to have care, custody and control of
a minor and to manage the minor’s financial resources[,]” KRS 387.010(3), and
is directed to “[t]ake custody of the person of the ward and establish the ward’s
place of abode[.]” KRS 387.065(2)(a).
Our case law, as cited by the trial court and the Court of Appeals,
recognizes that when a guardianship is ordered by the district court with the
agreement, and perhaps on the petition, of a parent, the resulting guardianship
is not given preclusive effect. See Hicks v. Halsey, 402 S.W.3d 79, 83 (Ky. App.
2013) (stating that guardianship is not necessarily the same as legal custody);
see also R.T. v. D.R., No. 2008-CA-0559-ME, 2008 WL 4754829 (Ky. App. Oct.
31, 2008) (holding that a district court guardianship order entered in favor of
non-parental couple with cooperation of mother did not divest mother of her
superior custody rights, applying factors set forth in Vinson v. Sorrell, 136
S.W.3d 465, 470 (Ky. 2004)). In fact, policy reasons may militate against the
rule of equating guardianship with legal custody:
[T]he family court did not cite any authority in support of its conclusion that a temporary agreement to guardianship amounts to the relinquishment of a parent's superior right to custody, nor do D.R. and V.R. cite us to such authority, nor have we been able to locate such authority. In addition, we are persuaded that such a rule would be a counterproductive public policy because such a penalty for agreeing to a temporary guardianship would discourage the use of the guardianship procedure, a procedure which has definite advantages over a less formal relinquishment of custody. See, e.g., KRS 387.065 (Granting guardian powers of a parent regarding the ward's support, care, and education).
R.T., 2008 WL 4754829, at *4; see also Ridgeway v. Walter, 281 Ky. 140, 146-
47, 133 S.W.2d 748, 751 (1939) (noting “[s]o far as the natural parents are
16 concerned it is usually held that their right to custody of their child is superior
to any right of the guardian[,]” and guardian’s statutory entitlement to custody
is not absolute); Johnson v. Cook, 274 Ky. 841, 120 S.W.2d 675 (1938)
(upholding parent’s superior right to custody of child notwithstanding
appointment of guardian); Mason v. Williams, 165 Ky. 331, 335-36, 176 S.W.
1171, 1173 (1915) (noting that “[i]t is not to be understood that the rights of
the statutory guardian as to the custody of his ward are superior to the rights
of the parent in that respect, when the guardian is a person other than the
parent[]”) (emphasis added); Garth v. City Sav. Bank, 120 Ky. 280, 283-84, 86
S.W. 520, 520-21 (1905) (appointment of guardian following father’s death did
not divest mother of her status as child’s natural guardian, notwithstanding
statute giving guardian custody of child’s person).
The custody and education of one’s own children has been recognized as
one of the most fundamental of all rights, which is protected by the Due
Process Clause of the Fourteenth Amendment. Meinders v. Middleton, 572
S.W.3d 52, 60 (Ky. 2019); Walker v. Blair, 382 S.W.3d 862, 870 (Ky. 2012).
Consequently, statutes that impact or circumscribe that right typically require
adversarial hearings with evidentiary standards and rights of appeal. See, e.g,
KRS 403.270(2) (custody determinations in best interest of child by
preponderance of the evidence to be determined by consideration of eleven
statutory factors); KRS 625.090(1) (termination of parental rights to be based
on clear and convincing evidence). In such cases, following a full and complete
judicial termination of custody, our legislature has determined that such
17 orders are protected and violations could result in criminal prosecutions. KRS
509.070. Simply put, a guardianship order entered with the agreement of a
parent does not carry that same imprimatur, because neither the parent nor
the child is relieved of natural obligations to the other. Parents who have not
been found unfit do not relinquish their fundamental liberty interest in raising
their children by consenting to a guardianship. In re Guardianship of W.L., 467
S.W.3d 129, 133 Ark. (2015) (internal citation and quotation omitted).5
The forementioned purpose and effect of a guardianship order must be
considered in balancing its probative value. KRE 401 defines “relevant
evidence” as “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.” Professor Lawson has opined
that KRE 401 and 402 give a very powerful and great inclusionary thrust to the
rules of evidence, but that these rules also created the need for KRE 403 as a
check on this thrust, and that KRE 403 is the “most important of all the
exclusionary rules.” Robert G. Lawson, Ky. Evidence Law Handbook, § 2.15[1]
(2020). KRE 403 provides that relevant “evidence may be excluded if its
probative value is substantially outweighed by the danger of undue prejudice,
confusion of issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” The trial court is to
5 W.L. involved a father’s attempt to revoke his consent to a guardianship order that played out over a five-year period. While the case involves the interpretation of an Arkansas guardianship statute, the legal proposition stated comports with our case law that a consensual guardianship is not the equivalent of legal custody.
18 make this exclusionary determination by assessing (i) the evidence’s probative
worth; (ii) probable impact of the evidence in terms of undue prejudice; and (iii)
whether its probative worth is substantially outweighed by its undue prejudice.
Little v. Commonwealth, 272 S.W.3d 180, 187 (Ky. 2008). Furthermore, and as
noted by Professor Lawson, “both the language of the rule (especially the
phrase ‘may be excluded’) and legislative history suggest that trial judges have
great leeway in this area.” Lawson, Ky. Evidence Law Handbook, § 2.15[2][a].
Our caselaw is clear that a guardianship order is not tantamount to
establishing custody. Here, the introduction of the order into evidence will no
doubt confuse the jury as to those rights and appear to give the imprimatur of
custody in favor of Niemeier, when, in reality, the situation is far more
dynamic. The danger of undue prejudice and juror confusion resulting from its
introduction outweighs its probative value.
Further, even were I inclined to agree that the guardianship order should
have been admitted, I would still conclude that the trial court did not violate its
discretion by failing to do so. “A trial court abuses its discretion when it
decides an issue arbitrarily, unreasonably, unfairly, or unsupported by sound
legal principles.” Gaither, 521 S.W.3d at 205. The decision to exclude relevant
evidence is left to the sound discretion of the trial court. Webb v.
Commonwealth, 387 S.W.3d 319, 325-26 (Ky. 2012). In this case, the trial
court’s decision to exclude the guardianship order was not arbitrary,
unreasonable, or unsupported by sound legal principles. Indeed, as the prior
discussion illustrates, a colorable argument exists that the guardianship order
19 was of dubious relevancy to the charged offense and its introduction would
only serve to confuse the jury. Additionally, the prejudicial effect of the
guardianship order cannot be understated. To exclude a piece of evidence so
damaging to the defense in light of its questionable value to the jury was well
within the discretion of the trial court.
Because the guardianship order was not dispositive of custodianship and
accordingly of limited relevance to the charge of custodial interference, and
because the exclusion of the order was within the sound discretion of the trial
court, I would affirm the Court of Appeals.
Keller, J., joins.
20 COUNSEL FOR APPELLANT
Daniel Cameron Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General
COUNSEL FOR APPELLEE:
Molly Mattingly Department of Public Advocacy Assistant Public Advocate