author: Justice VENTERS. MINTON, C.J., SCOTT, Justice,

text:
    Fred Lee COLVARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2007-SC-000477-MR.
    Supreme Court of Kentucky.
    March 18, 2010.
    As Corrected April 9, 2010.
    Rehearing Denied May 20, 2010.

      Cicely Jaracz Lambert, Assistant Appellate Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway Attorney General, Julie Scott Jernigan, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Fred Colvard, was convicted by a Jefferson Circuit Court jury of one count of first-degree sodomy, two counts of first-degree rape, one count of first-degree burglary, and of being a second-degree persistent felony offender (PFO II). For these crimes, Appellant was sentenced to life imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110.

Among other things, Appellant argues on appeal that certain testimony from medical personnel was improperly admitted through the hearsay exception under KRE 803(4). Because we find that our previous interpretation of the hearsay exception for “statements for purposes of medical treatment or diagnosis” was too broad, we find that the testimony was inappropriate. In addition, several other hearsay statements from other witnesses were improperly admitted. Because, in combination, the errors were not harmless, we reverse Appellant’s conviction and remand this matter for a new trial. We will address Appellant’s other arguments which may arise in his new trial to provide guidance to the trial court.

FACTUAL AND PROCEDURAL, BACKGROUND

On March 2, 2006, Appellant allegedly sexually assaulted two girls, D.J. and D.Y., in their bedroom. D.J. and D.Y. were six and seven years old, respectively, at the time of the events. Appellant knew the children because not only did he live in the same apartment complex as them, but just a few months before, he was engaged to marry their grandmother. The grandmother ended the engagement when she learned that Appellant was convicted of attempting to rape a ten-year-okl girl in 1994.

When D.J. and D.Y. told their mother that they had just been sexually assaulted by Appellant, she immediately reported it to the authorities. The girls were then medically examined and interviewed by several medical professionals. The medical examinations turned up no DNA or other physical evidence connecting Appellant to the crime. However, the examinations were not inconsistent with the girls’ allegation of sexual assault.

A jury trial was conducted and the jury found Appellant guilty of two counts of first-degree rape, one count of first-degree sodomy, and one count of first-degree burglary. He was also convicted of PFO II and the jury recommended sentences of twenty years for the burglary and life on each of the sex offenses. Those sentences were all enhanced to life imprisonment as a result of the PFO II conviction. Additional facts will be developed further below, as needed.

I. HEARSAY TESTIMONY WAS IMPROPERLY ADMITTED UNDER KRE 803(1); EDWARDS V. COMMONWEALTH IS OVERRULED

Jennifer Polk, Dr. Cole Condra, and Dr. Lisa Pfitzer are medical personnel who testified at trial that the victims identified Colvard as the perpetrator of the crimes committed against them. Because the testimony of each of these medical personnel implicates KRE 803(4) and the ongoing viability of the extension of that rule created in Edwards v. Commonwealth, 833 S.W.2d 842 (Ky.1992) (overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)), we consider Col-vard’s allegations of error as it relates to these medical witnesses together.

A. Jennifer Polk

Polk, an EMT who responded to the emergency call, was called by the Commonwealth to testify about the events of March 2, 2006. Over Colvard’s objection, Polk was allowed to testify that the first child to whom she spoke said that “Fred from number seven [Appellant] ... stuck his ‘dick’ in her.” Polk also testified that the second child to whom she spoke told her, in substance, that Appellant had “hurt” her anus. Appellant timely objected to the testimony, but the trial court overruled the objection upon the basis that it was admissible under KRE 803(4).

B. Dr. Condra

Appellant argues that Dr. Condra improperly gave testimony about statements DJ made to the triage nurse at the hospital. Dr. Condra testified from notes made by the nurse on March 2, 2006, when the children were initially admitted into the hospital for evaluation. Among other things, Dr. Condra testified that D.J. told the triage nurse that Appellant sexually abused her. He also testified that D.J. told the nurse that “Fred has been f* * *ing her, putting his weenie in her private parts.”

Dr. Condra also testified that D.J. and D.Y. informed him that they were sexually assaulted that day “and over the past months.”

C. Dr. Pfitzer

Appellant argues that Dr. Pfitzer, a treating pediatrician providing follow-up examination and treatment to D.Y. and D.J., should not have been permitted to testify as to the medical history provided by G.W., the girls’ mother. Appellant timely objected to the evidence, but his objection was overruled.

Dr. Pfitzer testified that she saw the children as a result of sexual abuse allegations made against “a neighbor” named “Fred” and that the allegations involved vaginal and anal penetration. Dr. Pfitzer also testified that D.J.’s mother reported that D.J. told her that “Fred was f* * *ingus.”

D. KRE 803(4.) and Edwards v. Commonwealth

As previously noted, the testimony of these medical personnel implicates KRE 803(4), the medical diagnosis exception to the hearsay rule. KRE 803(4) provides that “[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” are not excluded by the hearsay rule even though the declarant is available as a witness. However, the general rule is that the identity of the perpetrator is not relevant to treatment or diagnosis. Souder v. Commonwealth, 719 S.W.2d 730, 735 (Ky.1986) (overruled on other grounds by B.B., 226 S.W.3d at 47).

However, in Edwards, this Court recognized an exception to the identification rule in cases where a family or household member is the perpetrator of sexual abuse against a minor of that household. See also J.M.R. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 239 S.W.3d 116 (Ky.App.2007) (applying exception). In Edwards, we relied on United States v. Renville, 779 F.2d 430 (8th Cir.1985), as persuasive authority for the family, or household member, exception to the general rule. Therein, we acknowledged:

In Renville, the Court made this exception to the general rule that physicians rarely have reason to rely on statements of identity because of two important aspects involved in the case: (1) the physician was not merely diagnosing and treating the child/patient for physical injuries but psychological injuries as well, and (2) the abuser was a family, household member.
The physician in that case testified that he was treating the child for her emotional and physical trauma. He also said that the identity of the abuser was extremely important to him in helping the child work through her problems. The identity was also particularly important if the abuser lived with the child, because the abuse would likely continue as long as the child remained in the household with the abuser.

Edwards, 833 S.W.2d at 844 (citing Renville, 779 F.2d at 438).

The Commonwealth, citing the Court of Appeals’ unpublished opinion Plotnick v. Commonwealth, No.2007-CA-000160-MR, 2008 WL 162881 (Ky.App. Jan.18, 2008), argues that this exception applies since the children may have considered Appellant a member of the family or household, as Appellant had only recently ended his relationship with their grandmother. Therefore, if Appellant is treated as a family or household member, and the perpetrator’s identity is necessary for purposes of medical treatment, then the Edwards exception to the general rule would apply, allowing Polk’s testimony about the origin of the children’s injuries to be properly admitted under KRE 803(4) as statements reasonably pertinent to D.J.’s and D.Y.’s treatment or diagnosis.

Upon reconsideration of the plain language of KRE 803(4) and its underlying purpose, we have come to the view that the identification exception we adopted in Edwards and the Court of Appeals applied in J.M.R. were based upon an ill-advised and unsound extension of a traditional exception to the hearsay rule. We accordingly overrule Edwards and J.M.R.

The hearsay rule developed over hundreds of years of Anglo-American experience in jury trials. That jurisprudential experience taught that statements of witnesses repeating what they had heard from others out of court was inherently unreliable and unworthy of belief. To protect the integrity of the trial and its truth — finding mission, such out-of-court statements were forbidden. We also learned, however, that certain kinds of out-of-court statements, because of the circumstances in which they were uttered, were highly reliable.

[Hearsay evidence] was later excluded for lack of oath and cross-examination, two devices for assuring trustworthiness, of which the latter is primary and came finally to be controlling. Therefore, the hearsay rule and its exceptions in outline, though not in detail, form a logically coherent whole. Each exception is justified, for the hearsay received thereunder was uttered with attendant conditions which furnish a sufficient guaranty of its trustworthiness to enable the jury to value it.

See Edmund M. Morgan and John MacArthur Maguire, Looking Backward and Forward at Evidence, 50 Harv. L.Rev. 909, 920-921 (1937).

Among the several exceptions to the hearsay rule that developed is the one now codified as KRE 803(4), “statements for purposes of medical treatment or diagnosis.”

We know that an ill or injured person seeking to be healed or cured is ordinarily highly motivated to give truthful information to the physician or medical provider treating that illness or injury. The essential element that lends credence to the statement is that the patient, the “declar-ant” in hearsay law parlance, believes that the doctor must have that information to render effective treatment. The doctor’s actual need, use, or reliance upon the de-clarant’s information is less meaningful than the declarant’s belief that the information is essential to effective treatment. The declarant’s belief makes the out-of-court statement inherently trustworthy.

As expressed in Willingham v. Crooke, 412 F.3d 553, 561-562 (4th Cir.2005):

Rule 803(4) of the Federal Rules of Evidence [the federal counterpart of KRE 803(4) ] allows the admission of hearsay statements “made for purposes of medical diagnosis or treatment and describing ... present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” This exception to the hearsay rule is premised on the notion that a declarant seeking treatment “has a selfish motive to be truthful” because “the effectiveness of medical treatment depends upon the accuracy of the information provided.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.06[1] (Joseph M. McLaughlin, ed., 2d ed.2004); see Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir.1988). Admissibility of a statement pursuant to Rule 803(4) is governed by a two-part test: “(1) the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and, (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” Morgan, 846 F.2d at 949.

(internal quotation marks & footnote omitted).

Hence, we except from the hearsay rule statements made by a patient to medical personnel for the purpose of medical treatment or diagnosis. In the Edwards case, we enlarged that exception to include statements of a patient identifying the perpetrator of sexual abuse when that perpetrator is a member of the family or household of the victim, not because the utterance of the statement was motivated by the victim’s desire for effective treatment, but because the medical professional might use that information to protect the victim from further abuse by a member of the victims family or household. Edwards, 833 S.W.2d at 844. In so doing, we failed to recognize that it is the patient’s desire for treatment, not the doctor’s duty to treat, that gives credibility to the patient’s out-of-court statement. There is no inherent trustworthiness to be found in a hearsay statement identifying the perpetrator when that statement did not arise from the patient’s desire for effective medical treatment. As Professor Lawson notes, in Section 8.55(6) of the Kentucky Evidence Law Handbook (4th ed.2003) (quoting Mueller & Kirkpatrick, Federal Evidence, § 442 (2d ed. 1994)): “(T)his expansion [the Edwards/Renville decisions] of the exception is troubling ... admitting such statements because doctors rely on them in diagnosis is highly questionable.”

The Renville rule has also received other scholarly criticism. State v. Jones, 625 So.2d 821, 825 (Fla.1993), for example, sets forth learned authorities which criticize the rule and the reasonings therefor:

However, the trend to adopt a Ren-ville — type analysis also has been harshly criticized. As the Maryland Court of Special Appeals noted in a scholarly opinion:
In stretching outward them list of a physician’s responsibilities and in pushing forward with their definition of “medical treatment and diagnosis,” the expansionists have left behind, abandoned and forgotten, the state of mind of the declarant.... Physical self-survival dictates revealing even embarrassing truth to avoid the risk of the wrong medicine or the needless operation. Presupposing a declarant conscious of the probable consequences of his assertions, the imperative to speak truthfully is not nearly so strong when the anticipated result is a social disposition. The temptation to influence the result may, indeed, run in quite the opposite direction. Truthful answers as to the identity of its abuser may well wrench a child from the reassuring presence of its mother or father or both. It is highly unlikely that there operates in an infant declarant a compelling desire to bring about such a result. Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 684 (1988), cert. denied, 312 Md. 602, 541 A.2d 965 (1988).
Moreover, many commentators have expressed concern that in the course of laudable efforts to combat child abuse, prosecutors, courts, and others have occasionally overreached. See, e.g., Michael H. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 529 n. 26 (1988) (“The successful prosecution of child sexual abuse cases should not be permitted to distort the hearsay exception for statements for medical diagnosis or treatment. Almost anything is relevant to the diagnosis or treatment of psychological well being, and far too many untrustworthy statements are relevant to preventing repetition of the abuse.”); Robert P. Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257, 258 (1989) (Applications of medical diagnosis or treatment exception in child abuse cases “have tended to expose the thinness of the justification for extending the exception to statements made without any view toward treatment.”)

As reflected by the foregoing discussion, we have carefully considered the Renville rule, its merits and de merits, and now conclude that our adoption of the rule was an unwise departure from the traditional hearsay rule that has served our system of justice well for many generations. One cannot reasonably conclude that the statements identifying the perpetrator, such as those at issue in this case, were made by young children “for the purpose of medical treatment or diagnosis.” The Renville rule is inconsistent with the plain language of KRE 803(4), and, as the above authorities explain, the reliability of a child’s identification of the perpetrator of the abuse to a medical professional contains the same tangible risks of unreliability generally inherent in all hearsay testimony. Accordingly, Edwards, and other cases applying .the exception to the hearsay rule are overruled. In so deciding, we do not hold that statements of a child victim to medical personnel identifying an abuser are always inadmissible. There may be circumstances in which such statements will be found to comport with the requirements of KRE 803(4) or other exceptions to the hearsay rule. This, however, is not such a case.

Based upon the above discussion, we conclude that it was error for the trial court to have permitted Polk, Dr. Condra, and Dr. Pfitzer to testify under the Ren-ville construction of the medical treatment exception to the hearsay rule. Moreover, because the testimony served to bolster the children’s testimony and the Commonwealth’s theory of the case, the testimony was highly prejudicial. As further discussed below, in combination with other inadmissible hearsay statements let into trial, reversible error occurred.

This opinion does not alter or limit the traditional hearsay exception allowing medical providers to testify to a patient’s out-of-court statements as to what was done to the patient and how he or she was injured. Nor, as the dissent implies, does this opinion impede or limit the ability of medical personal to report suspected child abuse, including information regarding the identity of a suspected abuser to the appropriate authorities. We simply state that we no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical treatment being provided.

II. OTHER HEARSAY TESTIMONY

In addition to the medical testimony hearsay discussed above, Appellant also complains of hearsay statements introduced at trial through J.W., the victims’ uncle; G.W., the victims’ mother; and Val-leri Mason, a children’s forensic interviewer. For the reasons stated below, we conclude that each of these witnesses was permitted to repeat statements made by the children identifying Appellant as the perpetrator, and that the statements were not subject to any hearsay exception.

A. J.W. — (Victims’ Uncle)

Appellant argues the trial court erred by permitting testimony from the victims’ uncle, J.W. The uncle, a prosecution witness, testified that he asked D.Y. “what happened, who touched her,” and D.Y. pointed to Appellant. Appellant objected, claiming the testimony was hearsay, but the trial court determined the uncle was being asked about what he said and saw, not what a third-party said, and allowed him to testify to his recollection.

KRE 801 defines a statement as: “(1) An oral or written assertion; or (2) Non verbal conduct of a person, if it is intended by the person as an assertion.” (Emphasis added). We have no difficulty in concluding that D.Y.’s nonverbal conduct pointing at Appellant following J.W.’s question was the equivalent of a verbal assertion by D.Y. that “Fred Colvard touched me.” Thus, the nonverbal assertion falls under the normal hearsay rules for the admission of evidence.

In support of the statement’s admission, the Commonwealth cites us to KRE 801A(a)(3), Preston v. Commonwealth, 406 S.W.2d 398, 403 (Ky.1966), and our previous ruling in Owens v. Commonwealth, 950 S.W.2d 837, 839 (Ky.1997), to the effect that “once a witness is allowed to testify that he made an identifying statement, further proof by other witnesses that he did in fact make it is just as relevant and competent as would be defensive proof to the effect that he did not make it.” (internal citations omitted).

KRE 801A(a)(3) provides as follows:

Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: ... (3) One of identification of a person made after perceiving the person.

(emphasis added).

While D.Y. did testify at trial, the Commonwealth fails to cite us to D.Y.’s testimony wherein she was “examined concerning the statement” she made to her uncle, and our review of the testimony discloses no such examination of the child. Nor do we find compliance with the foundation requirements contained in KRE 613. Further, the uncle testified prior to D.Y. Accordingly, the elements for admissibility under the rule are not met, and the uncle’s testimony relating the statement was admitted in error.

B. G. W. — (Victims ’ Mother)

At trial, Appellant asked the children’s mother on cross-examination whether she had asked the children “Did he put his dick in you?” The apparent purpose of the question was to impeach the mother by portraying her as vulgar. Appellant then had the mother read a report prepared by Polk that stated that the mother had, in fact, asked the children that question.

On redirect, the Commonwealth attempted to ask the mother about a statement made by D.Y. to Polk to the effect that Appellant “took his weenie out of his zipper and put it in her, but not all the way.” The Commonwealth first attempted to argue that the statement was admissible as a statement made for medical diagnosis under KRE 804(a) as extended under Edwards. The trial court ultimately ruled that the question and answer could come in for the purpose of showing that the children used “children’s” terminology as opposed to the vulgar terminology allegedly used by the mother.

Appellant now claims that allowing the mother to so testify improperly bolstered the victims’ testimony. We agree.

While Appellant’s inquiry of the mother about her question to the children opened the door to further inquiry regarding that event, and perhaps other conversations she had with the children, we fail to perceive how that would have opened the door for the mother to repeat D.Y.’s statement to Polk. Because D.Y. used children’s terminology does not impeach the mother’s denial that she asked the children a question using vulgar terminology. Moreover, the purported impeachment was impeachment on a collateral matter that permitted a hearsay statement not subject to an exception implicating Appellant as guilty of the charges to be heard by the jury.

The mother’s questioning of the children is too attenuated from D.Y.’s statement to Polk for questioning concerning the former to have opened the door to the latter. We discern no other hearsay exception which would have permitted the statement to be admitted, and accordingly conclude that it was admitted in error.

C. Valleri Mason

Lastly, Appellant objects to various statements made by Valleri Mason, a forensic interviewer for Family and Children First. Mason, a self-described child interview specialist, interviewed D.Y. and D.J. the day after the reported assault and testified about that interview at trial. She testified that D.Y. and D.J. made disclosures of sexual abuse and that they circled anatomically correct drawings indicating where they had been violated. In addition, she testified to the following discussion she had with D.J.:

You told me that Fred, that he put his peanuts [D.J.’s term for penis] in you. She said, ‘Yeah.” I said, well can you show me on here. Does this boy, does he have peanuts? She said, “yes”.... I asked her to circle where the peanuts are on that boy and she circled the penis.

Though Mason’s title is that of a “forensic interviewer,” she is, in effect, a social worker. “It is well-settled that ‘[t]here is no recognized exception to the hearsay rule for social workers or the results of their investigations.’” B.B., 226 S.W.3d at 51. It follows that there is no hearsay exception which would allow Mason to testify to the children’s identification of Appellant as having sexually assaulted them.

As with the medical testimony, the above hearsay was prejudicial because the testimony served to bolster the children’s testimony and the Commonwealth’s theory of the case. As further discussed below, in combination with the medical hearsay statements admitted into evidence at trial, reversible error occurred.

III. THE HEARSAY ERRORS WERE NOT HARMLESS

RCr 9.24 requires us to disregard an error if it is harmless. A non-constitutional evidentiary error may be deemed harmless if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The inquiry is not simply “whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Id. at 765, 66 S.Ct. 1239; Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009).

In light of the lack of DNA or other physical evidence linking Appellant to the crimes, the multiple instances of hearsay testimony described above which bolster the Commonwealth’s theory was of sufficient consequence such that we cannot say with fair assurance that the judgment was not substantially swayed by the error. The improper hearsay evidence vouching that the children had previously identified Appellant as the perpetrator multiplied the bolstering effect and resulted in a parade of witnesses vouching for the Commonwealth’s theory of the case.

In sum, we are persuaded that the multiple instances of hearsay evidence bolstering the Commonwealth’s case were not harmless error. We accordingly are constrained to vacate the trial court’s judgment of conviction, and remand for a new trial.

IV EVIDENCE REGARDING APPELLANT’S PRIOR CONVICTION IS ADMISSIBLE

Appellant contends that the trial court erroneously permitted the Commonwealth to introduce evidence that he was convicted of attempting to rape a ten-year old child in 1994. Because the issue is likely to arise again upon retrial, we address the argument on the merits.

At trial, the Commonwealth introduced evidence that Appellant was convicted of attempting to rape a ten-year old girl in 1994. The victim, who is now twenty-three years old, testified at trial. Appellant argues that this testimony was error per KRE 404(b) because the circumstances surrounding the 1994 conviction were too dissimilar to the instant case. Generally, a defendant’s prior bad acts are inadmissible. However, KRE 404(b)(1) provides that evidence of prior crimes or wrongs is admissible if offered for “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” As recognized in Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky.1998), this list of exceptions is illustrative, not exclusive. “Among the non-enumerated exceptions we have recognized to KRE 404(b)’s general prohibition on the introduction of prior bad acts evidence is ... modus operandi” Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007). The modus operandi exception requires that:

[t]he facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea. If not, then the evidence of prior misconduct proves only a criminal disposition and is inadmissible.

Id. (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999)).

“It is not the commonality of the crimes but the commonality of the facts constituting the crimes that demonstrates mo-dus operandi So, as a prerequisite to the admissibility of prior bad acts evidence, we now require that the proponent of the evidence to ‘demonstrate that there is a factual commonality between the prior bad act and the charged conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual.’ Thus, ‘[although it is not required that the facts be identical in all respects, ‘evidence of other acts of sexual deviance ... must be so similar to the crime on trial as to constitute a so-called signature crime.’ ”

Id. at 97.

The circumstances of the present offenses are sufficiently similar to the 1994 crime to satisfy the standard we have established for admission under KRE 404(b). The prior offense indicated a sexual interest in prepubescent girls, such as the victims here. In both the prior crime and the current offenses, Appellant knew the victims and gained access to their homes by his involvement in a romantic relationship with an adult female in the household. All of the victims had second floor bedrooms and were quietly assaulted while others were in the home. The nature of the sexual act itself was similar in that each incident was of brief duration, the perpetrator said nothing to the victim during the assault, the perpetrator did not ejaculate, and avoided vaginal or anal tearing of the victims by penetrating only partially.

Faced with those striking similarities between Appellant’s prior conviction and the current alleged crimes, the trial court did not abuse its discretion in admitting under KRE 404(b) the evidence of Appellants prior conviction for attempted rape. At retrial, should the same facts be developed, the trial court will be well within its discretion to admit evidence regarding Appellant’s prior conviction.

V THE BURGLARY INSTRUCTION GIVEN TO THE JURY WAS ERRONEOUS

Finally Appellant argues that the jury instruction given on the burglary charge was improper because it allowed the jury to convict him of that crime if they believed he either caused physical injury to the girls, a violation of KRS 511.020(l)(b), or threatened the girls with harm to their mother if they told anyone about what he did. KRS 511.020(l)(c). We address the issue because it may arise upon retrial.

Appellant argues that the instruction as written presented alternate theories of guilt, violating his right to a unanimous verdict. A jury instruction which presents an alternative theory of guilt is proper and does not violate the requirement of unanimity found in Section 7 of the Kentucky Constitution, if every alternate theory contained in the instruction was reasonably supported by evidence presented at trial. Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky.1981).

While alternative theories of criminal liability may properly be combined in a single instruction, the instruction must accurately present the elements of each alternative theory. Guilt under KRS 511.020(l)(c) requires that one “uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.” The corresponding instruction given by the trial court stated that Appellant could be found guilty of first degree burglary if, among the other elements, he “threatened to kill the victim’s mother, [G.W.].” It is clear that the instruction does not accurately reflect the requirement of the statute. If upon retrial, the Commonwealth pursues a conviction on the alternate theories of liability under KRS 511.020(l)(b) and (l)(c), and appropriate evidence is offered to support same, the instruction must correspond to the statutory element by requiring the jury to find, not simply a threat to kill another, but a threat to use a deadly weapon against another person.

VI. OTHER ISSUES

Appellant also argues that prejudicial error occurred by the trial court’s failure to strike two jurors for cause. Because the case is reversed on other grounds and the issue is unlikely to recur upon retrial, we decline to address it.

Appellant also argues that the evidence presented at trial was insufficient to support the convictions. We disagree. The testimony of D.J. and D.Y. describing the events of March 2, 2006, and identifying Appellant as the perpetrator was sufficient to defeat his motion for a directed verdict. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). The trial court did not err in overruling Appellant’s motions for directed verdicts.

CONCLUSION

For the reasons stated herein, the judgment of the Jefferson Circuit Court is reversed, and the cause is remanded for additional proceedings consistent with this opinion.

All sitting. CUNNINGHAM, NOBLE, and SCHRODER, JJ., concur.

MINTON, C.J.,

concurs in part and dissents in part and would not allow introduction of 1994 attempted rape conviction because the facts of the current case are not sufficiently similar to satisfy KRE 404(b). He concurs in all other respects.

SCOTT, J., concurs in part and dissents in part by separate opinion in which ABRAMSON, J., joins.

SCOTT, Justice,

Concurring in Part and Dissenting in Part Opinion:

Although I concur with the majority on the other issues, I must respectfully dissent from the majority’s opinion that this Court’s decision in Edwards v. Commonwealth, 833 S.W.2d 842 (Ky.1992) (overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)) was “based upon an ill-advised and unsound extension of a traditional exception to the hearsay rule.” Op. at 244.

I. Edwards and Renville

Edwards, id. at 844, was premised on United States v. Renville, 779 F.2d 430 (8th Cir.1985), wherein the logic of the rule as applied to young children was explained, to wit:

Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment.
Statements of this kind differ from the statements of fault ... and properly excluded under our past decisions in a crucial way: they are reasonably relied on by a physician in treatment or diagnosis. First, child abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injuries which accompany this crime. The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser. The general rule banning statements of fault is premised on the assumption that the injury is purely somatic. This is evident from the examples put forth by the courts and commentators discussing the rule. In each example, the medical treatment contemplated was restricted to the physical injuries of the victim; there is no psychological component of treatment which could relate to the identity of the individual at fault. Furthermore, in each example the statement of fault is not relevant to prevention of recurrence of the injury. Sexual abuse of children at home presents a wholly different situation.
Second, physicians have an obligation, imposed by state law, to prevent an abused child from being returned to an environment in which he or she cannot be adequately protected from recurrent abuse. This obligation is most immediate where the abuser is a member of the victim’s household, as in the present case. Information that the abuser is a member of the household is therefore “reasonably pertinent” to a course of treatment which includes removing the child from the home.

Id. at 436-438 (internal citations and footnotes omitted); see also J.M.R. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 239 S.W.3d 116 (Ky.App.2007).

As our predecessor Court noted in Edwards:

In Renville, the Court made this exception to the general rule that physicians rarely have reason to rely on statements of identity because of two important aspects involved in the case: (1) the physician was not merely diagnosing and treating the child/patient for physical injuries but psychological injuries as well, and (2) the abuser was a family, household member.
The physician in that case testified that he was treating the child for her emotional and physical trauma. He also said that the identity of the abuser was extremely important to him in helping the child work through her problems. The identity was also particularly important if the abuser lived with the child, because the abuse would likely continue as long as the child remained in the household with the abuser.

833 S.W.2d at 844. And, as was noted by the Court in J.M.R.:

The therapists testified that the boys feared their stepfather would harm them in the future and that they did not want to reunify with their mother because of her inability or unwillingness to leave their stepfather. While the mother contends that these statements were inadmissible hearsay, we conclude that these statements qualified as hearsay exceptions pursuant to KRE 803(4) because the statements were made to therapists who were determining what happened to the children and what treatment they needed to receive and the statements were made for the purpose of receiving medical treatment.

239 S.W.3d at 119 -120; see also Gadd v. Commonwealth, 2005-SC-000880-MR, 2007 WL 858811 (Ky.2007). Gadd, in turn, led to an expansion in Plotnick v. Commonwealth, 2007-CA-000160-MR, 2008 WL 162881 at *3 (Ky.App.2008), wherein the Court recognized:

While not a “family member” in the traditional sense, D.R. called Plotnick “daddy,” D.R. had a half-sibling fathered by Plotnick, D.R. had resided with Plot-nick at times, and the victim’s mother had an ongoing relationship with Plot-nick from which it may be inferred that there would be ongoing contact between the victim and the alleged perpetrator. Therefore, we believe the Edwards exception applies, and that the physician’s assistant properly repeated D.R.’s identification of Plotnick as the perpetrator.

Each of these opinions are based on common ground — that it is medically relevant to the health and safety of young children that their injuries not only be recognized and treated, but also that further injury prevented — i.e., their perpetrators, if connected with the children’s home life, could be identified and reported so that the child would be made safe.

Moreover, even State v. Jones, 625 So.2d 821, 824-25 (Fla.1993), upon which the majority bases its logic, admits that “[t]he majority of state courts confronted with this issue have followed Renville and permitted medical personnel to testify regarding statements of identity made by child victims of abuse.” Id. at 824-25 (emphasis added) (citations omitted).

II. The Occurrence

The relevant events precipitating this analysis occurred on March 2, 2006, in Louisville, Kentucky, when the victims, D.J. and D.Y., were six and seven years old, respectively. That day, their mother, G.W., met them as they got off the school bus and was told by the bus driver that the girls had misbehaved on the trip home. She then took them home, ordering them to their room and bed as punishment for their behavior on the bus. G.W., who was seven months pregnant at the time, then went to the kitchen to fix her daughters a snack, but became ill and went to the bathroom.

During this time, Appellant entered the home and went to D.Y. and D.J.’s bedroom. D.J. testified that Appellant climbed onto the top bunk where she was lying and used belts to tie her arms and legs to the bed. He then hit her in the face and raped her. Though D.J. could not remember what he said, Appellant threatened her. In addition, Appellant raped D.Y. He told DY. that he would kill her mother and the baby her mother was carrying if she told anyone what he was doing. Appellant then climbed out the window.

While in the bathroom, G.W. heard a door close and shouted to her daughters, asking who was in the house. D.Y., the older of the two victims, then asked to come into the bathroom to wash herself. D.Y. initially refused to tell her mother why, but she was holding herself. On undressing her, G.W. noticed that D.Y.’s vagina was red, and had a strong odor. G.W. then went to her daughter’s room and noticed an odor of feces. After briefly questioning the children, G.W. realized that both her daughters had been raped. At her insistence, both girls identified Appellant as their attacker.

G.W. then looked out the window and saw Appellant leaving. She grabbed a butcher knife from the kitchen, left the apartment, and confronted Appellant. Initially, he denied the allegations, but became silent when G.W.’s mother, W.D., Appellant’s former fiancee, confronted and physically attacked him.

The police and EMS were then called to G.W.’s apartment. No injuries or blood was seen on the girls and EMS left the scene. G.W. and W.D. then took the girls to the hospital. Dr. Condra, who saw the children at the hospital, testified that D.J.’s examination showed some mild redness between the vulva and vagina, but there was no evidence of tears or bruising to the vagina. An abnormality of the hymen was also noted. Dr. Condra concluded that D.J.’s examination was consistent with her complaint of sexual assault and was consistent with some type of penetration, although he could not specify the nature of the penetration.

D.Y.’s examination showed some mild redness or inflammation at the opening of the vagina, but there were no tears or bruising. The history D.Y. gave Dr. Con-dra, along with his examination, was consistent with a sexual assault. D.Y. also had anal dilatation of about 1.5 centimeters. Such a dilatation was consistent with a penetrating trauma.

Vaginal swabs, anal swabs, and a vaginal smear of the panties did not disclose the presence of any seminal fluid or sperm cells on D.J. or D.Y. However, an unidentified 11-inch, light brown, Caucasian head hair was found in D.Y.’s anal region that did not belong to Appellant, an African-American. No semen, pubic hair or body hair was found on any of the bed clothing or the towel removed from the girl’s bedroom. Rape kits taken from the children did not contain any semen that could be examined or analyzed as Appellant had not ejaculated.

III. The Medical Testimony

A. Dr. Condra

Prior to seeing Dr. Condra at the hospital, D.J. and D.Y. were interviewed by the triage nurse. Dr. Condra relied upon these notes in treating the victims. The notes reflected that D.J. told the triage nurse that Appellant sexually abused her. Dr. Condra also testified that D.J. told him and the nurse what Appellant had been doing to her. He also testified that both D.J. and D.Y. informed him that they were sexually assaulted that day “and over the past months.”

B. Dr. Pfitzer

Dr. Pfitzer was a treating pediatrician who provided follow-up examination and treatment to D.J. and D.Y. She testified that she saw the children as a result of sexual abuse allegations made against “a neighbor” named “Fred” and that the allegations involved vaginal and anal penetration.

TV. The Majority’s Departure From Edwards

In discarding Edwards’ precedent of eighteen years, the majority asserts that it “cannot reasonably conclude that the statements identifying the perpetrator, such as those at issue in this case, were made by young children ‘for the purpose of medical treatment or diagnosis.’ ” Op. at 246. The majority further asserts “the reliability of a child’s identification of the perpetrator of the abuse to a medical professional contains the same tangible risk of unreliability generally inherent in all hearsay testimony.” Id. at 246-47. Outside the medical field, one could assert this conclusion to be valid as long as it rested “on the obvious assumption that the declarant is responding under the impression that [he or she] is being asked to make an accusation that is not relevant to the physician’s diagnosis or treatment.” Renville, 779 F.2d at 438. However,

[t]his assumption does not hold where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment, and the victim manifests such an understanding. In such circumstances, the victim’s motivation to speak truthfully is the same as that which insures reliability when he recounts the chronology of events or details symptoms of somatic distress.

Id. Here, there is nothing in the record to indicate “that the child’s motive in making these statements to medical personnel was other than as a patient responding to a physician questioning for prospective treatment.” Id. at 439 (citing United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980)); see also U.S. v. Kappell, 418 F.3d 550, 557 (6th Cir.2005) (“The record supports the district court’s finding that ‘there is sufficient indicia that these statements were made for the purpose of medical diagnosis or treatment ... to be admissible under 803(4).’ ”).

The reasoning for retaining the Edwards/Renville exception was also aptly noted by the Supreme Court of Arkansas in Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493, 498 (2002):

R.T.’s identification of appellant as her abuser allowed Dr. Hawawini to take steps to prevent further abuse by her stepfather, who was a member of her household. Additionally, R.T.’s identification of appellant as her abuser allowed Dr. Hawawini to take steps to treat the emotional and psychological injuries which accompanied the rape. Moreover, we note that based on R.T.’s statements, Dr. Hawawini referred her to a physician at Children’s Hospital who specialized in treating children who are sexually abused. Finally, R.T.’s identification of appellant as her abuser permitted Dr. Hawawini to fulfill her legislatively imposed duty of calling the child-abuse hotline and reporting the crime.

And, the Court in Morgan v. Foretich, also noted that “[w]e agree with the judgment of the Eighth Circuit [in Renville ] that ‘[sjexual abuse of children at home presents a wholly different situation’ from that normally encountered in Rule 803(4) cases and that situation requires great caution in excluding highly pertinent evidence.” 846 F.2d 941, 949 (4th Cir.1988) (citing Renville, 779 F.2d at 437). In State v. Tracy, 482 N.W.2d 675 (Iowa 1992), the Iowa Supreme Court agreed, noting that “[bje-cause of the nature of child sexual abuse, the only direct witnesses to the crime will often be the perpetrator and the victim. Consequently, much of the State’s proof will necessarily have to be admissible hearsay statements made by the victim to relatives and medical personnel.” Id. at 682. Thus, “ ‘[ijnformation that the abuser is a member of the household is therefore ‘reasonably pertinent’ to a course of treatment which includes removing the child from the home.’ ” Id. at 681-82 (quoting Renville 779 F.2d at 438); see also State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 810 (1987) (“[I]n child sexual abuse cases, we therefore join the growing number of jurisdictions which recognize that statements regarding the abuser’s identity fall within Rule 803(4) whenever, as here, identity is relevant to proper diagnosis and treatment.”); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76, 80 (1986) (“[I]n the context of a child sexual abuse or child rape, a victim’s statements to a physician as to an assailant’s identity are pertinent to diagnosis and treatment.”); Goldade v. State, 674 P.2d 721, 725 (Wyo.1983) (“[Tjhe function of the court must be to pursue the transcendent goal of addressing the most pernicious social ailment which afflicts our society, family abuse, and more specifically, child abuse.”); U.S. v. George, 291 Fed.Appx. 803, 805 (9th Cir.2008) (“The district court also did not abuse its discretion by admitting D.B.’s statement to a nurse practitioner that George touched her inappropriately because the statement was made for the purposes of a medical diagnosis.”); People of Territory of Guam v. Ignacio, 10 F.3d 608, 613 (9th Cir.1993) (“Thus, a child victim’s statements about the identity of the perpetrator are admissible under the medical treatment exception when they are made for the purposes of medical diagnosis and treatment.”) (emphasis added).

V. Conclusion

For these reasons, I cannot so easily cast away an exception wisely adopted by our predecessor Court for the protection of the children of Kentucky and thus I must dissent.

ABRAMSON, J., joins.

      . KRE 803 provides in pertinent part: "The following are not excluded by the hearsay rules ... (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment 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 diagnosis or treatment.”

      . Based upon this testimony Appellant moved for a mistrial for failure of the Commonwealth to give notice of its intent to introduce prior acts pursuant to KRE 404(c). The motion was denied.

      . Even under the Renville rule it would have been error to have admitted Polk's testimony. Polk, as an EMT, was treating D.J. and D.Y. for purely physical injuries, without addressing the emotional/psychological trauma. An emergency medical responder, unlike a treating physician ordinarily does not have the medical training, or the expertise, to engage in, or plan for, psychological evaluation and treatment. Thus, the identity of the perpetrator is not something an EMT would reasonably rely upon in composing a course of emergency treatment. Thus, die Edwards and Renville exception was inapplicable in this instance.

      . Appellant also objects to Mason’s testimony that D.J. stayed on task better, followed questioning, and was less easily distracted than D.Y., her older sister; her testimony that she had not testified as a witness in court for each interview she has done, because not all cases go to court; and her testimony that she does not make recommendations to the prosecutor, that some cases settle, and sometimes the touching alleged is not illegal or improper touching.

      . This claim of error was not properly preserved by objection. We have factored this into our harmless error review in considering whether reversible error occurred as a result of the multiple recitations of impermissible hearsay identifying Appellant as having perpetrated a sexual assault on the children.


source: Caselaw Access Project

author: BUCKINGHAM, Senior Judge.

license: Public Domain

text:
    VALUED SERVICES OF KENTUCKY, LLC; Angela Jackson; and Mary Depue, Appellants, v. Floyd WATKINS, Appellee.
    No. 2008-CA-001204-MR.
    Court of Appeals of Kentucky.
    June 19, 2009.
    Discretionary Review Denied by Supreme Court May 12, 2010.

      Sasha Y. Wagers, Lexington, KY, Mark R. Overstreet, Frankfort, KY, for appellants.
    Debra Ann Doss, Lexington, KY, for appellee.
    Before CAPERTON and STUMBO, Judges; BUCKINGHAM, Senior Judge.

      . Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

BUCKINGHAM, Senior Judge.

This is an appeal from an order of the Fayette Circuit Court denying a motion to compel arbitration made by Valued Services of Kentucky, LLC, a check-cashing company, and two of its employees, Angela Jackson and Mary Depue (hereinafter collectively referred to as Valued Services), in a false imprisonment action filed by Floyd Watkins. The trial court denied the motion on the ground that the arbitration provision of Watkins’s “payday loan” contract with Valued Services was unconscionable. For the reasons discussed below, we affirm.

On February 21, 2007, Floyd Watkins obtained a cash advance in the amount of $250 from Valued Services, which did business in Lexington under the name of Check Advance. As part of the loan transaction, Watkins signed a document entitled “Customer Agreement.” Watkins had obtained loans from Valued Services on five previous occasions, and on each of those previous occasions, he had signed an identical “Customer Agreement.” These customer agreements always included an identical arbitration provision.

Under the terms of the cash advance that Watkins obtained on February 21, he was required to repay the loan by March 15. Although he had always repaid the prior loans promptly, on this occasion Watkins claimed that he was unable to repay the loan on time. According to the allegations in Watkins’s complaint, he telephoned Valued Services in mid-March and told them that he was out of state but would return in approximately one week, when he would repay the cash advance.

Upon his return to Lexington, Watkins went to the Check Advance store on Friday, March 23, and informed the store manager, Angela Jackson, that he could not repay his loan on that day, but that he would be able to do so three days later, on Monday, March 26. Jackson insisted that Watkins had to repay the entire amount that day and stated that he was not leaving the premises until he had paid in full. Jackson pushed a button to lock the office door and would not allow Watkins to leave even though he repeatedly asked to do so.

Jackson telephoned her regional manager, Mary Depue, and told her that “I have a black guy over here that refuses to pay his bill and he’s not going to leave until he does.” Watkins then spoke to Depue and told her that he had always repaid his loans on prior occasions, that he had to make his automobile loan payment that day, and that he would repay Check Ad-vanee in full on Monday, March 26. De-pue then spoke to Jackson again. Jackson stated, “He’s going to pay his bill or he’s not leaving ... I want my money now!”

Watkins attempted to leave the office, but Jackson again refused to unlock the door, stating, “You ain’t going nowhere until you pay me my money.” Watkins again tried to leave, pushing on the office door. He told Jackson if she did not allow him to leave, he would call the police. In response, she shouted, “I don’t care who you call, you are not going until you pay me my money.” Watkins finally persuaded Jackson to allow him to use the office telephone to call a friend to bring the money to repay the loan. Watkins instead called 911 and asked for the police, telling the dispatcher that he was being held against his will at the Check Advance store.

Watkins was finally able to leave the office after the arrival of the police. He had been detained at the office for about one hour. Jackson told the investigating police officer that she had been instructed by Depue not to allow Watkins to leave the premises even if he called the police.

Watkins filed a complaint against Valued Services, Jackson, and Depue in the Fayette Circuit Court on March 20, 2008, alleging false imprisonment and seeking equitable and legal relief including declaratory and injunctive relief, attorney’s fees, compensatory damages, costs, and punitive damages.

Valued Services moved the trial court for an order compelling arbitration (and staying litigation pending the outcome of arbitration) arguing that the Customer Agreement governing the loan transaction between Watkins and Valued Services subjected his claims to mandatory arbitration, specifically a subsection of the agreement that required arbitration of “all common law claims, based upon contract, tort, fraud, or other intentional torts.” Following briefing and oral argument, the trial court denied the motion, holding that the arbitration provision requiring Watkins to arbitrate claims that did not arise from the underlying loan transaction was unconscionable. Valued Services filed this appeal, arguing that the arbitration provision was neither procedurally nor substantively unconscionable and that the trial court erred as a matter of law in refusing to compel arbitration.

The arbitration provision is set forth on the second page of the two-page Customer Agreement signed by Watkins. The customer’s signature is affixed to the first page of the agreement, directly beneath the following statement in bold typeface:

Please note that this Agreement contains a binding arbitration provision. By signing this Agreement you acknowledge that it was filled in before you did so and that you have received a completed copy of it.... You further acknowledge that you have read, understand, and agree to all of the terms on both pages of this Agreement, including the provision entitled “Waiver of Jury Trial and Arbitration Provision”, which is located on the second page of this Agreement and is marked Page 2 of 2.

Page 2 contains a full page of text in fine print. After supplying a definition of arbitration, it sets forth the following arbitration provision. The only claims that it exempts from arbitration are those brought in small claims court.

THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. For purposes of this Waiver of Jury Trial and Arbitration Provision (hereinafter the “Arbitration Provision”), the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation (a) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision and any claim or attempt to set aside this Arbitration Provision; (b) all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to this Customer Agreement (including the Arbitration Provision), the information you gave us before entering into this Customer Agreement, including the Customer Application, and/or any past agreement or agreements between you and us; (c) all counterclaims, cross-claims and third-party claims; (d) all common law claims, based upon contract, tort, fraud, or other intentional torts; (e) all claims based upon a violation of any state or federal constitution, statute or regulation; (f) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (g) all claims asserted by you individually against us and/or any of our employees, agents, directors, officers, shareholders, governors, managers, members, parent company or affiliated entities (hereinafter collectively referred to as “related third parties”), including claims for money damages and/or equitable or injunctive relief; (h) all claims asserted on your behalf by another person; (i) all claims asserted by you as a private attorney general, as representative and member of a class of persons, or in any other representative capacity, against us and/or related third parties (hereinafter referred to as “Representative Claims”); and/or (j) all claims arising from or relating directly or indirectly to the disclosure by us or related third parties of any non-public personal information about you.
2. You acknowledge and agree that by entering into this Arbitration Provision:
(a) YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST U.S. OR RELATED THIRD PARTIES;
(b) YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST U.S. OR RELATED THIRD PARTIES; and
(c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST U.S. AND/OR RELATED THIRD PARTIES.
6. All parties, including related third parties, shall retain the right to seek adjudication in the Kentucky state Small Claims Court and District Courts for disputes within the scope of such courts’ jurisdiction. All disputes asserted in a Kentucky state Circuit Court shall be resolved by binding arbitration. Any dispute, which cannot be adjudicated within the jurisdiction of a Kentucky Small Claims Court or District Court, as the case may be, shall be resolved by binding arbitration. Any appeal of a judgment from a Kentucky state District court shall be resolved by binding arbitration.
8. This Arbitration Provision is binding upon and benefits you, your respective heirs, successors and assigns. The Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. The Arbitration Provision continues in full force and effect, even if your obligations have been paid or discharged through bankruptcy. The Arbitration Provision survives any termination, amendment, expiration or performance of any transaction between you and us and continues in full force and effect unless you and we otherwise agree in writing.

As a general rule, “Kentucky law favors arbitration agreements.” Mortgage Electronic Registration Systems, Inc. v. Abner, 260 S.W.3d 351, 353 (Ky.App.2008). KRS 417.050 provides in pertinent part that “[a] written agreement to submit any existing controversy to arbitration or a provision in written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevoeable[.]” Valued Services argues that the express language of the statute, referring to “any controversy,” mandates the enforcement of precisely the type of broad, all-encompassing arbitration agreement at issue here. But the statute also contains a savings clause that permits a party to avoid an arbitration agreement “upon such grounds as exist at law for the revocation of any contract.” “In other words, the court — not an arbitrator — must decide whether the parties have agreed to arbitrate based on fundamental principles governing contract law.” Abner, 260 S.W.3d at 353.

It is a fundamental rule of contract law that, “absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms.” Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 341 (Ky.App.2001) (citing Cline v. Allis-Chalmers Corp., 690 S.W.2d 764 (Ky.App.1986)). A narrow exception to this rule is the doctrine of unconscionability, which

is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain.
An unconscionable contract has been characterized as one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other. Unconscionability determinations being inherently fact-sensitive, courts must address such claims on a case-by-case basis.

Id. at 341-42 (citations and quotation marks omitted) (emphasis supplied).

In its order denying the motion to compel, the trial court held that

the averments of Plaintiffs Complaint concern issues completely outside the scope of the contract in question, and it would be unfairly surprising to compel binding arbitration of these issues. These issues do not relate to the underlying contract and could not reasonably have been contemplated by the parties as subject to arbitration. By analogy, the Court believes that ordering compulsory arbitration of the issues raised herein would be akin to ordering compulsory arbitration had Defendants sent 2 men to Plaintiffs house to break his legs because he was behind in his payments.

Although the trial court did not employ these terms, Valued Services has challenged its finding of unconscionability under two categories: procedural uncon-scionability and substantive unconsciona-bility. Procedural or “unfair surprise” un-conscionability “pertains to the process by which an agreement is reached and the form of an agreement, including the use therein of fine print and convoluted or unclear language....” Id. at 342-48, n. 22. In Conseco, this Court determined that an arbitration clause was not procedurally unconscionable on the following grounds:

The clause was not concealed or disguised within the form; its provisions are clearly stated such that purchasers of ordinary experience and education are likely to be able to understand it, at least in its general import; and its effect is not such as to alter the principal bargain in an extreme or surprising way.

Id. at 343.

Valued Services maintains that the same conditions prevailed in this case: that the arbitration provision was boldly displayed and its existence twice emphasized elsewhere in the contract document; that the terms of the provision were plainly and thoroughly explained, using everyday language capable of being understood by persons of ordinary education and experience; that the waiver of the right to a jury trial was emphasized in a bold font and capital letters; that Watkins was given every opportunity to read the provision; and that the provision did not alter the principal bargain — the loan transaction — between Valued Services and Watkins in an extreme or surprising fashion.

What is not clear, however, is whether a person of ordinary education and experience would understand that his waiver of a jury trial extended far beyond disputes relating to the payday loan to encompass every imaginable unrelated claim that might arise between him (and his heirs, successors, and assigns) and Valued Services and its “employees, agents, directors, officers, shareholders, governors, managers, members, parent company or affiliated entities.” Would an individual like Watkins, when he obtained a loan advance for the relatively small sum of $250, understand that in so doing he had permanently waived his right to ever bring a civil action against the company and its employees for the commission of an intentional tort?

“It is difficult to fathom that one would knowingly compromise her right to sue for intentional tort claims.” Solis v. Evins, 951 S.W.2d 44, 51 (Tex.App.1997). The Supreme Court of South Carolina has stated that

[bjecause even the most broadly-worded arbitration agreements still have limits founded in general principles of contract law, this Court will refuse to interpret any arbitration agreement as applying to outrageous torts that are unforeseeable to a reasonable consumer in the context of normal business dealings.

Aiken v. World Finance Corp. of South Carolina, 373 S.C. 144, 644 S.E.2d 705, 709 (2007) (footnote omitted). Although such a rule of interpretation does not exist in Kentucky law, it is particularly applicable in this case. “As with any contractual matter our main concern in deciding the scope of arbitration agreements is to faithfully reflect [ ] the reasonable expectations of those who commit themselves to be bound by [them].” Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 28 (2nd Cir.1995) (citation and quotations marks omitted).

Moreover, a broad waiver of the type at issue here is particularly suspect when it is contained in a contract of adhesion. In Conseco, this Court gave as an example of procedural unconscionability

“material, risk-shifting” contractual terms which are not typically expected by the party who is being asked to “assent” to them and often appear [ ] in the boilerplate of a printed form. The notion of procedural uneonscionability thus includes many of the concerns raised by contracts of adhesion.

Conseco, 47 S.W.3d at 343 n. 22 (citations omitted).

“[T]here is a significant difference between an adhesion contract in which the parties have disparate bargaining power and a contract which voluntarily has been entered into by sophisticated and knowledgeable businessmen concerning a financial transaction of considerable magnitude.” Buck Run Baptist Church, Inc. v. Cumberland Sur. Ins. Co., Inc., 983 S.W.2d 501, 504 (Ky.1998). The arbitration agreement in this case is undeniably a contract of adhesion made between parties with disparate bargaining power, and the waiver of the right to pursue a civil action in circuit court is certainly a material contractual term, which is stated in fine print within the boilerplate of the printed form. Recently, in finding an arbitration clause in a mortgage contract to be unconscionable, this Court quoted with approval a West Virginia court which “while noting that a bargain is not unconscionable merely because the parties to it are unequal in bargaining position, held that an arbitration clause that contains a ‘substantial waiver of a parties’ rights’ is unenforceable.’” Abner, 260 S.W.3d at 354 (citing Arnold v. United Companies Lending Corp., 204 W.Va. 229, 511 S.E.2d 854, 861-862 (1998)).

Valued Services also contends that the arbitration provision is not substantively unconscionable. Substantive uneonsciona-bility “refers to contractual terms that are unreasonably or grossly favorable to one side and to which the disfavored party does not assent.” Conseco, 47 S.W.3d at 343, n. 22 (citation omitted). Valued Services argues that the arbitration provision is not substantively unconscionable because it is equally binding on both parties, obligates Valued Services to advance the customer’s portion of the arbitration fees, which the customer is not obliged to reimburse, and does not limit the remedies available to the customer. Valued Services reiterates that the wording of KRS 417.050 recognizes that parties to a contract may agree to submit “any controversy” between them to arbitration, not exclusively controversies relating to the underlying contract. It also cautions that if we should affirm the order of the trial court, we would improperly create public policy by deciding that an agreement that does no more than what the General Assembly expressly condones is unconscionable.

As we have already stated, however, uneonscionability is a well-established doctrine of contract law in Kentucky, and it is well within the province of the courts to find any contract, including one made pursuant to KRS 417.050, unconscionable. This point was made very effectively in an opinion of the U.S. Court of Appeals for the Seventh Circuit in regard to the relationship between the Federal Arbitration Act and contract law:

Nothing in the Federal Arbitration Act overrides normal rules of contractual interpretation; the Act’s goal was to put arbitration on a par with other contracts and eliminate any vestige of old rules disfavoring arbitration. Arbitration depends on agreement, see First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and nothing beats normal rules of contract law to determine what the parties’ agreement entails. There is no denying that many decisions proclaim that federal policy favors arbitration, but this differs from saying that courts read contracts to foist arbitration on parties who have not genuinely agreed to that device.

Stone v. Doerge, 328 F.3d 343, 345 (7th Cir.2003).

Case law from other states is replete with examples of courts upholding the principle that “even the broadest arbitration clauses obviously cannot cover every type of dispute that might arise.” RN Solution, Inc. v. Catholic Healthcare West, 165 Cal.App.4th 1511, 81 Cal.Rptr.3d 892, 902 (2008).

To hold otherwise would allow persons signing broad arbitration provisions to commit intentional torts against one another, which torts are outside the scope of their contemplated dealings, without concern that they might have to answer for their actions before a jury of their peers.

Fountain Finance, Inc. v. Hines, 788 So.2d 155, 158 (Ala.2000) (citation omitted). See also Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1516 (10th Cir.1995) (“if two small business owners execute a sales contract including a general arbitration clause, and one assaults the other, we would think it elementary that the sales contract did not require the victim to arbitrate the tort claim because the tort claim is not related to the sales contract.”)

There is no case law in Kentucky that addresses the type of broad arbitration provision at issue here. But an almost identical arbitration agreement, made pursuant to a payday loan, was the subject of an opinion by the U.S. Court of Appeals for the Seventh Circuit. See Smith v. Steinkamp, 318 F.3d 775 (7th Cir.2003). In that case, a payday loan borrower, Smith, signed an agreement containing an arbitration provision very similar to the one in this case. Smith took out another loan some time later, but she did not sign the agreement on that occasion. The payday lender, Instant Cash, argued that the terms of the arbitration provision in the earlier loan agreement also governed all future loans that were made to Smith.

In discussing the terms of the arbitration provision, the Court, in an opinion authored by Judge Richard Posner, held that the sections waiving the right to a jury trial had to be interpreted as relating in some way to the underlying loan agreement. The concerns expressed by Judge Posner mirror almost exactly those of the trial court in this case:

If (b) through (f) [which correspond almost exactly to sections 1(b) through (f) in the Valued Services arbitration provision] are read as standing free from any loan agreement, absurd results ensue, for example that if Instant Cash murdered Smith in order to discourage defaults and her survivors brought a wrongful death suit against Instant Cash (a “common law” suit, thus encompassed by (c)), Instant Cash could insist that the wrongful death claim be submitted to arbitration. For that matter, if an employee of Instant Cash picked Smith’s pocket when she came in to pay back the loan, and Smith sued the employee for conversion, he would be entitled to arbitration of her claim. It would make no difference that the conversion had occurred in Smith’s home 20 years after her last transaction with Instant Cash.
The defendants’ lawyer blanched when confronted with such hypothetical cases at oral argument but was unable to suggest a limiting principle.

Smith, 318 F.3d at 777.

The Smith court accordingly held that the arbitration agreement signed by Smith when she took out the initial loan was inapplicable to subsequent or future loans. The Court did not therefore reach the question of uneonscionability, but it did comment as follows:

A cynic might argue that, given the desperation of people who take out payday loans, these plaintiffs would have signed anything, so that relieving them from the duty to arbitrate gives them a windfall based on an oversight by Instant Cash. The defendants do not make this argument, however, perhaps fearing that it would invite a conclusion that payday loans are unconscionable and therefore unenforceable even in states that do not deem them usurious.

Id. at 778.

Finally, Valued Services argues that the trial court’s decision is not supported by the case law on which it purports to rely. Valued Services notes that, of the three cases cited by the trial court (Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335 (Ky.App.2001), Hill v. Hilliard, 945 S.W.2d 948 (Ky.App.1996), and Anthem Health Plans of Kentucky, Inc. v. Academy of Medicine of Cincinnati, 2004 WL 2413666 (2003-CA-000752-MR; 2003-CA-000753-MR; 2003-CA-000754-MR) (Ky.App.2004)), none stand for the proposition that an arbitration provision that provides for arbitration of matters other than those arising directly from the underlying contract is unconscionable.

Conseco provides the fullest discussion in our case law of the doctrine of uncon-scionability as it relates specifically to arbitration agreements, and the trial court did not therefore err in relying on it. Simply because the Conseco court focused on different grounds for finding unconscionability than those raised here, and concluded that the agreement at issue was not unconscionable, does not mean that the opinion was irrelevant to the trial court’s analysis in this case.

In Hill and in Anthem, the doctrine of uneonscionability was never invoked. Both cases stand for the proposition that it is within the power of the courts to delineate the scope of an arbitration provision. In Hill, it was held that claims for sexual assault and battery, intentional infliction of emotion distress, and false imprisonment were not within the scope of an arbitration agreement which was confined to “[a]ny controversy ... arising out of employment or termination of employment!.]” Hill, 945 S.W.2d at 950. In Anthem, this Court upheld the trial court’s ruling that the antitrust claims of a group of physicians against an insurance company were not subject to arbitration because they fell outside the scope of the arbitration agreement, which applied to “any disputes arising out of or relating to the provider agreement or business relationship.” It did so on the ground that the antitrust action could be maintained without reference to the provider agreement or the business relationship.

Valued Services argues that the Anthem court erred in looking beyond the language of the arbitration provision to the underlying contract. Valued Services further appears to contend that, if we affirm the trial court, we would in effect establish a rule that a claim, in order to be arbitra-ble, must always relate to the underlying contract. That is not our intention. Although there is no requirement under Kentucky law that claims must relate to the underlying transaction in order to be arbitrable, the nature of the underlying transaction may certainly be considered in assessing whether an arbitration agreement is unconscionable when applied to a particular set of facts. In this case, the arbitration provision is unconscionable because it encompasses an intentional tort with so little connection to the underlying agreement that it could not have been foreseen by Watkins when he signed that agreement.

For the foregoing reasons, the order of the Fayette Circuit Court denying the motion to compel arbitration is affirmed.

ALL CONCUR.