Commonwealth Of Kentucky Court of Appeals - Justia

was abusing her children. Therefore, even if counsel was aware that Kenneth Tharp
had abused Tharp, any expert evidence would not have benefited her.
We note that Tharp argues in her brief that “extensive evidence existed to
demonstrate that Appellant was battered. Ms. Jones’ affidavit is rife with examples of
Kenneth Tharp’s physical and emotional abuse of Appellant.” It appears that Ms. Jones
obtained those examples from transcripts of statements given by the Tharps to the
police. However, we do not have those statements in the record and cannot review
them. Therefore, we must rely on the trial court’s interpretation of the statements.
Finally, we note that counsel’s failure to obtain expert testimony appears
to have been a matter of trial strategy. As noted by the Commonwealth in its brief, the
story Tharp presented at trial was that she had no prior knowledge of abuse of Elaina by
Kenneth Tharp. That story is inconsistent with any attempt by Tharp to simultaneously
state that Kenneth Tharp’s abuse of her prevented her from stopping his abuse of
Elaina. Any mental evaluation of Tharp would have highlighted this inconsistency,
bringing into clearer focus Tharp’s already damaged credibility. We discern nothing in
Tharp’s argument, or in the evidence before us, that rebuts the presumption that
counsel’s actions were the result of trial strategy. See Simmons v. Commonwealth, 191
S.W.3d at 561-62 (Ky. 2006), cert. denied, _____ U.S. _____, 127 S.Ct. 1132, 166
L.Ed.2d 908 (2007). Therefore, we hold that counsel’s failure to obtain expert testimony
at trial did not rise to the level of ineffective assistance of counsel.
CONCLUSION
For the reasons set forth above, we affirm.
ALL CONCUR.
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