Summaries of Kentucky Court of Appeals:
November 15, 2024
Harney (Now McConathy) v. Harney; Case No. 2022-CA-1202-MR
Judges Combs, Jones, & Taylor
Re: Interest on Arrearages and Child Tax Credit Out of Jessamine County
Mother was originally granted sole custody and Father was required to pay child support in the divorce decree’s Marital Settlement Agreement. This was decided in part based on Father’s substance abuse issues at the time, though over the course of the following years, Father got sober and remained sober, and his child support obligation increased. Father then filed a motion to modify custody and timesharing and to reallocate the child tax exemption. The FC granted Father’s motion and awarded joint custody as well as his request to claim the child for the 2021 tax year. The FC also noted that Father had a child support arrearage of $2,346.45, with no interest. In that order, the FC articulated that no interest was set on the original order setting the new child support obligation, so the arrearages are to have no interest. Mother argued that the arrearages should have interest, so the FC, citing Pursley, instated interest on the arrearages.
The COA believed the FC did not abuse its discretion by determining under Gibson that it would be inequitable to require Father to pay interest on the arrearage. The COA believed the FC did err by not ordering that Mother’s attorneys fees that Father was ordered to pay in the MSA should bear interest. The COA also affirmed the FC decision that Father was entitled to a credit on his arrearages in the amount of childcare expenses he paid Mother which were never actually spent on childcare by Mother. Lastly, because Father was current on his child support obligation and child medical expenses, and therefore compliant with the parties’ MSA, the COA affirmed the decision of the FC to award Father the tax exemption for the child in the 2021 tax year.
Baptist Health v. John Mitchell Farmer, M.D.; Case No. 2023-CA-0809-MR
Judges Eckerle, Jones, & Taylor
Re: Breach of K and Tortious Interference Out of Jefferson County
Reversed and remanded CC judgment confirming a jury award for breach of contract and tortious interference with a business relationship, holding that Baptist Health was entitled to a qualified privilege from liability because Dr. Farmer failed to show that they acted without “good faith” and with “actual malice” under KRS 311.6191. The COA held that the CC’s “definition of these terms unreasonably constrained the scope of the statutory exemption and resulted in an undue restriction upon Baptist Health from undertaking discovery and presenting a full picture to the jury…. Given this lopsided presentation, the jury was allowed to render a large award even though there was no evidence to support a jury finding that Baptist Health acted with actual malice or in bad faith.”
The COA held that the CC “improperly applied the ‘malice’ definition used for determining punitive damages to limit evidence, when it should have used the ‘actual malice’ standard in the statute.” This “actual malice” standard required a showing that Baptist Health either knew the information was false or made the referral with reckless disregard as to whether or not it was false. However, “Dr. Farmy merely and speculatively claims that Dr. Nims failed to disclose information that might have led to a decision different from referring him to the Foundation.” As for the bad faith analysis, “[e]ven the limited evidence that the Trial Court allowed the jury to hear [was] entirely devoid of proof that Baptist Health lacked good faith and acted with actual malice.”
Johnny Caudill v. Daily Underwriters of America, Inc.; Case No. 2023-CA-1168-MR
Judges Acree, Karem, & Taylor
Re: Underinsured Motorist Coverage Out of Letcher County
COA affirmed the CC’s grant of summary judgment in favor of DUA. The COA rejected Caudill’s “assertion that he should be permitted to stack UIM coverage based upon his reasonable expectations of coverage under the commercial insurance policy,” and that the UIM coverage is not illusory.
Commonwealth v. Chapman & Chapman; Case No. 2023-CA-1221-MR
Judges Cetrulo, Eckerle, & Goodwine
Re: Evidence Suppression Out of Perry County
COA reverses and remands the orders out of Perry County suppressing evidence seized from a residential search. Chapman and Chapman are married and live together in a house that was the target of the search at hand. Sergeant Childers was granted a search warrant for the Chapmans’ house, attesting in the SW application/affidavit that the Chapmans were trafficking drugs. SGT Childers and other LEOs executed the warrant, knocking on the door and announcing their presence and purpose, but nobody answered, and a sweep of the home revealed no occupants. SGT Childers read the warrant aloud to the empty home, leaving the physical copy of the search warrant in a conspicuous location, and the LEOs seized eight items that led to the indictment of the Chapmans on drug trafficking charges. The Chapmans each moved to suppress the fruits of the search, arguing that the search was a no-knock/no-notice search without a specific no-knock warrant, in violation of KRS 455.180, to which the CC agreed and granted the suppression motion. The CC “ruled that law enforcement’s knocks and announcements did not qualify as ‘notice’ under KRS 455.180 because no one was present at the Chapman residence to receive notice at the time the search was effectuated.”
The COA disagrees, stating that “[w]here there is no answer to a knock and announce, law enforcement may proceed with executing the search warrant by forceable entry.” (citing to Parks v. Commonwealth, 192 S.W.3d 318, 334 (Ky. 2006)). In this case, the LEOs obtained a valid search arrant and knocked and announced prior to entering the residence when executing the warrant, therefore, “law enforcement acted reasonably in effectuating the valid search warrant.”
The COA also found that, while LEOs did not meet the heightened criteria of KRS 455.180 for no-knock warrants, it is inconsequential because KRS 455.180 was inapplicable for two reasons: first, the warrant was applied for and granted using AOC Form 340, and second, the LEOs effectuated the search with notice.
November 08, 2024
Van Gansbeke v. Van Gansbeke; Case No. 2023-CA-0942-MR
Judges Acree, Easton, & Goodwine
Re: Friend of the Court Report Out of Jefferson County
COA vacated and remanded FC’s order because the FC violated Father’s statutory right to a meaningful opportunity to challenge a FOC’s sources and report. KRS 403.300(3) provides the right for a parent to request a FOC to submit to the parent the underlying data and reports (sources) from which their report was created. Father made such a request, but due to the FOC’s error typing in his email address, Father did not actually receive the sources until the morning of the hearing. Father moved to exclude the report, claiming he had too little time to review it to properly cross-examine the FOC on the matter. The FC denied the motion. Father cross-examined the FOC nearly a month later, as half of the hearing was continued to the later date.
COA held that the FC erred by admitting the report of the FOC, not because of lack of notice due to the email typo, but because the FC’s protective order prohibiting Father from deposing Dr. Hammon deprived him of sufficient notice of the report’s sources and the opportunity to refute them, as required by KRS 403.300(3) and explained in Greene v. Boyd, 603 S.W.3d 231, 240 (Ky. 2020).
Adams v. Commonwealth; Case No. 2023-CA-1415-MR
Judges Thompson, Acree, & Caldwell
Re: Denial of Motion to Suppress Out of Fayette County
Affirmed CC denial of Defendant’s motion to suppress the search of his car, arguing the drug dog’s search around the car’s exterior impermissibly extended the length of the stop. Officer Hempel pulled over Defendant after witnessing him enter the wrong lane of traffic to pass multiple vehicles stopped at a stop sign. Defendant, upon stopping in a parking lot, stepped out of the car with his hands up. Officer Hempel ordered him back in the car multiple times, but he did not obey. Officer Hempel patted down Defendant and called for backup, which arrived within three minutes. Officer Hempel ran the standard checks on the car and Defendant, which came up as multiple active arrest warrants. Officer Hempel requested dispatch to confirm the arrest warrants, which they did, and requested a drug dog. The drug dog arrived less than 20 minutes after the stop began and checked the exterior of the vehicle, alerting, and dispatch soon confirmed the validity of the warrants. All of this was occurring as Officer Hempel was completing the traffic stop paperwork in his cruiser.
COA affirmed CC’s denial of Defendant’s motion to suppress, citing first that the issue was not properly preserved because Defendant failed to raise the issue before the trial. Regardless, the COA asserts, “this minimal extension of the stop was reasonable.” Citing a string of SCOTUS cases, specifically U.S. v. Hensley (1985) and Rodriguez v. U.S. (2015), and a Kentucky Supreme Court Case, Carlisle v. Commonwealth, (Ky. 2020). Additionally, the COA cited to another Kentucky Supreme Court case for support that “discovery of an outstanding warrant as part of a traffic stop provides new probable cause for the resulting increased duration of such stop,” relevant in this case, as the warrants were discovered prior to calling for the dog and confirmed by dispatch while the dog was sniffing. Rhoton v. Commonwealth, 610 S.W.3d 273, 279 (Ky. 2020).
October 25, 2024
Van Gansbeke v. Van Gansbeke; Case No. 2023-CA-0942-MR
Judges Acree, Easton, & Goodwine
Re: Friend of the Court Report Out of Jefferson County
COA vacated and remanded FC’s order because the FC violated Father’s statutory right to a meaningful opportunity to challenge a FOC’s sources and report. KRS 403.300(3) provides the right for a parent to request a FOC to submit to the parent the underlying data and reports (sources) from which their report was created. Father made such a request, but due to the FOC’s error typing in his email address, Father did not actually receive the sources until the morning of the hearing. Father moved to exclude the report, claiming he had too little time to review it to properly cross-examine the FOC on the matter. The FC denied the motion. Father cross-examined the FOC nearly a month later, as half of the hearing was continued to the later date.
COA held that the FC erred by admitting the report of the FOC, not because of lack of notice due to the email typo, but because the FC’s protective order prohibiting Father from deposing Dr. Hammon deprived him of sufficient notice of the report’s sources and the opportunity to refute them, as required by KRS 403.300(3) and explained in Greene v. Boyd, 603 S.W.3d 231, 240 (Ky. 2020).
Adams v. Commonwealth; Case No. 2023-CA-1415-MR
Judges Thompson, Acree, & Caldwell
Re: Denial of Motion to Suppress Out of Fayette County
Affirmed CC denial of Defendant’s motion to suppress the search of his car, arguing the drug dog’s search around the car’s exterior impermissibly extended the length of the stop. Officer Hempel pulled over Defendant after witnessing him enter the wrong lane of traffic to pass multiple vehicles stopped at a stop sign. Defendant, upon stopping in a parking lot, stepped out of the car with his hands up. Officer Hempel ordered him back in the car multiple times, but he did not obey. Officer Hempel patted down Defendant and called for backup, which arrived within three minutes. Officer Hempel ran the standard checks on the car and Defendant, which came up as multiple active arrest warrants. Officer Hempel requested dispatch to confirm the arrest warrants, which they did, and requested a drug dog. The drug dog arrived less than 20 minutes after the stop began and checked the exterior of the vehicle, alerting, and dispatch soon confirmed the validity of the warrants. All of this was occurring as Officer Hempel was completing the traffic stop paperwork in his cruiser.
COA affirmed CC’s denial of Defendant’s motion to suppress, citing first that the issue was not properly preserved because Defendant failed to raise the issue before the trial. Regardless, the COA asserts, “this minimal extension of the stop was reasonable.” Citing a string of SCOTUS cases, specifically U.S. v. Hensley (1985) and Rodriguez v. U.S. (2015), and a Kentucky Supreme Court Case, Carlisle v. Commonwealth, (Ky. 2020). Additionally, the COA cited to another Kentucky Supreme Court case for support that “discovery of an outstanding warrant as part of a traffic stop provides new probable cause for the resulting increased duration of such stop,” relevant in this case, as the warrants were discovered prior to calling for the dog and confirmed by dispatch while the dog was sniffing. Rhoton v. Commonwealth, 610 S.W.3d 273, 279 (Ky. 2020).
October 18, 2024
Superash Remainderman, LP v. Ashland, LLC; Case No. 2023-CA-0427-DG
Judges Easton, Eckerle, & Lambert
Re: Forcible Detainer Complaints Out of Jefferson, Fayette, and Harrison County
COA reversed and remanded Circuit Courts’ holdings affirming the District Courts’ rulings, remanding them to the respective District Courts to adjudicate only matters of law and not equity, unless statutorily authorized to do so. The District Courts originally granted equitable relief, which was affirmed by the Circuit Courts, and summarily addressed crucial issues, relying on the findings of an Ohio Court, rather than making initial findings of their own jurisdiction.
Bentley v. Etherton; Case No. 2023-CA-0560-MR
Judges Acree, Easton, & Goodwine
Re: Denial of Modification of Grandparent Custody/Visitation Out of Bullitt County
Affirmed CC denial of Grandparents’ motion to modify custody or visitation of their minor grandson. Mother murdered Father and executed a medical POA for Child, granting POA to (maternal) Great-Aunt, as well as physical custody, prior to Mother being taken into custody. Great-Aunt initiated a DNA petition in which she was awarded temporary custody. Less than a week later, Grandparents initiated a grandparents’ visitation action, which was dismissed, and Grandparents sought to intervene in the Bullitt County DNA action. The parties agreed to a set visitation schedule, which was entered by the CC.
Grandparents later filed multiple motions, including challenging Great-Aunt’s custody, requesting the Bullitt judge recuse herself, and requesting the case be moved to Henry County, where Grandparents originally filed an action. The Bullitt court denied all of these motions and later, upon motion by Great-Aunt, granted Great-Aunt permanent custody. Grandparents did not appeal that order.
COA held that Grandparents’ appeal of the DNA case in the custody case was not properly before the COA. COA also held that the Friend of the Court (FOC) satisfied his obligation to the court under KRS 403.290 and 403.300, and that the COA’s limited review of FOCs focuses on whether the CC erred relative to the FOC’s report, which Grandparents did not allege.
October 11, 2024
Commissioner of Dep’t Workplace Standards v. Kalkreuth Roofing and Sheet Metal, Inc.; Case No. 2023-CA-0649-MR
Judges Acree, Jones, & Taylor
Re: KY Occupational Safety and Health Review Commission Out of Franklin County
The Franklin Circuit Court affirmed a Final Decision and Order of the KY OSHRC (“the Commission”), which dismissed a citation and penalty against Appellee, appealed by the Commissioner of the Department of Workplace Standards, Education, and Labor Cabinet (“the Cabinet”). COA affirmed the Franklin Circuit Court decision, holding that the Commission’s and CC’s interpretation of the regulation is supported by reading the regulation and definition of secondary fall protection congruently. The Cabinet’s interpretation, on the other hand, “unnecessarily strains the principles controlling the review and legal interpretations of the terms used in regulations,” and “unilaterally attempts to overturn long-standing and well-established practices without any showing that those practices have caused any harm or danger.”
COA gave caution to the practice of statutory interpretation of an administrative agency’s prior interpretation, referencing SCOTUS’s recent overturn of Chevron deference in the 2024 case of Loper Bright Enterprises, and SCOTUS’s admonition of such deference to administrative agencies when they wrote that “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Loper Bright Enterprises, at 2273. “Regardless of the recent opinion,” the COA writes, “Chevron deference or the rescindment thereof has no real impact here,” for two reasons: (1) Chevron deference would not apply to the Cabinet’s decision, and (2) “the Commission, not the Cabinet, is designated as the primary arbiter” as they are the organization with the express authority to hear and rule on appeals, and therefore “the Commission does not have to defer to the Cabinet.” Additionally, the COA held that the regulation at issue is not ambiguous, and therefore Chevron deference could not have been applied to the interpretation anyway.
Lesley Ryan Cornett v. Commonwealth; Case No. 2023-CA-0680-MR
Judges Acree, Easton, & Goodwine
Re: Denial of Directed Verdict and Probation Out of Perry County
Affirmed CC denial of directed verdict and probation in a criminal case which charged and convicted Cornett of possession of a controlled substance, namely LSD. Cornett appealed on the basis that the Commonwealth failed to present sufficient evidence of the mens rea of the crime – knowing possession – because Cornett “believed he purchased and was in possession of a different controlled substance, Suboxone, not LSD.” The COA rejects the premise that “the Commonwealth was required to present evidence of Cornett’s knowledge he was in possession of LSD, specifically … after interpreting the legislative intent underlying the relevant statute.” The COA holds that all that the statute requires is that a defendant “intended to purchase, believed he did purchase, and thought he was in possession of a controlled substance. … The Commonwealth is not required to further prove a defendant knew which controlled substance he possessed.”
The COA held that the issue whether the CC erred by denying probation is moot because it is undisputed that Cornett served his sentence in full, and that the issue does not fall within the mootness exception of “capable of repetition, yet evading review.” The issue does not evade review because the maximum sentence for the crime charged was three (3) years, so the “shelf life” of the issue is measured in months and years as a felony, not in days, just as was pointed out in Commonwealth v. Collinsworth, 628 S.W.3d 82, 86-87 (Ky. 2021).
Masonic Homes of Kentucky v. Estate of Raymond Leist, Jr.; Case No. 2024-CA-0054-MR
Judges Thompson, Easton, & Karem
Re: Staying Litigation and Compelling Arbitration Out of Jefferson County
Affirmed CC denial of motion by Masonic Homes to stay litigation proceedings and compel arbitration. Frank was appointed as Raymond’s Durable Power of Attorney prior to Raymond’s dementia. Frank executed the admission forms for Raymond’s stay at the Masonic Homes residential treatment facility, including an (optional) arbitration clause, signing as the “Resident Representative,” on behalf of Raymond. Raymond died within 11 days of residency at Masonic Homes, and Ray’s estate and beneficiaries filed suit alleging negligence, wrongful death, and loss of consortium. The CC denied Masonic Homes’s motion to stay the proceedings and compel arbitration on the negligence claim, “finding that the DPOA did not give Frank the power to enter into an arbitration agreement on Ray’s behalf.”
COA held that, similar to the Kindred Nursing Centers case in which “Beverly had no authority to enter into the pre-dispute agreement on behalf of Joe, Frank had no authority to enter into the arbitration agreement on behalf of Ray.” Additionally, Masonic Homes failed to argue in Circuit Court “that the Uniform Power of Attorney Act provided Frank the authority through the DPOA to bind the principal, Ray, to arbitration,” and therefore cannot argue it for the first time on appeal to COA.
General Motors v. Brandi Woods; Case No. 2024-CA-0091-WC
Judges Caldwell, Cetrulo, & Eckerle
Re: ALJ Award of Benefits From the Workers’ Compensation Board
Affirmed ALJ award of benefits to Woods from the Workers’ Compensation Board (“the Board”), denying GM’s argument that “the ALJ erroneously included a lump sum vacation payment in calculating Woods’ average weekly wage.” The ALJ considered both parties’ arguments for and against including the vacation payment in the 13-week period, but agreed with Woods that it should be included, for which GM appeals claiming that “it was not a substitute for work,” and instead “represented 56 hours of vacation pay.” The Board rejected GM’s arguments to exclude the payment, explaining that the average weekly wage also included weeks in which Woods was paid $0, to which GM did not object, so it was a fair reading of the statute that the Board should also include payments such as the vacation payment in its calculation.
September 27, 2024
Helmbrecht v. Bailey Jaynes Bakery and Cafe; Case No. 2023-CA-1033-MR
Judges Acree, Easton, & Goodwine
Re: Wrongful Death from Donut Eating Contest Out of Boone County
Helmbrecht is the administratix of the estate of Chavez who died from asphyxiation from a donut eating contest in Boone County. Helmbrecht filed suit asserting multiple claims relating to Chavez’s death: various negligence claims, wrongful death, loss of consortium, NIED, and others. Defendant City of Walton filed a motion to dismiss, asserting the waiver as a complete bar, and Jaynes joined in on the motion. The CC treated the motion as one for summary judgment, dismissing all claims as barred by the waiver, but concluding the willful and wanton negligence claim failed as a matter of law. Helmbrecht appeals specifically to the decision on three of the claims: negligence, gross negligence, and willful or wanton negligence in the “provision of emergency medical services.”
COA affirmed that the waiver was enforceable against the negligence and gross negligence claims. However, the waiver did not cover willful and wanton negligence, so that claim remains viable because the summary judgment reviewed only the waiver and not whether there was an absence of evidence supporting the claim.
W.H.J. v. J.N.W.; Case No. 2023-CA-1474-ME
Judges Eckerle, Goodwine, & McNeill
Re: Contested Adoption Out of Warren County
Affirmed FC grant of the contested adoption of Child by Stepfather. Father and Mother divorced when Child was 3 years old, and Father fell down a path of substance abuse and crime and failed to comply with court orders for substance abuse and mental health assessments, attend parenting classes, and pay child support. Father also admitted to intentionally failing to visit Child for years. Upon the marriage of Mother to Stepfather, Stepfather attempted to adopt Child. This first attempt was appealed and reversed and remanded “due to the Family Court’s inadequate explanation of the right of an indigent person to receive complimentary counsel.” On remand, Father requested a continuance to find counsel after the FC found him to not be indigent, but the FC denied the request, asserting that Father had already had almost two years to retain counsel. The FC again granted the adoption, finding that Father had deliberately abandoned Child for more than 90 days and intentionally relinquished his parental role and duties for more than six months and saw no reasonable expectation for his improvement.
Father argued that the FC failed to provide him with an attorney at no cost violating his DP rights and that there was insubstantial evidence produced to support the FC’s findings. COA found that the FC’s findings that Father was not indigent satisfied their remand requirement of appointing counsel if found indigent. COA also found that, while Father may have had some reasons to not have contact with Child following the divorce and during his crime issues, there were no attempts on his part to reinstate visitation or have the no-contact order lifted in the four years of adoption proceedings, nor did Father consistently pay child support until a month before the filing of the adoption proceeding after falling $25,000+ in arrears. COA explained that “Father had zero involvement in Child’s life for over five years and did not seek any contact until Court proceedings were initiated to stop him from doing so in the future,” and that was “unrefuted evidence that he abandoned Child” for the statutory period. COA also called Father’s other arguments regarding his failures to follow FC orders regarding substance abuse and mental health assessments and treatment, as well as attending a parenting class, were “red herrings to distract from Father’s abandonment of Child,” and “unsupported as Father did not submit evidence of parental classes or substance abuse treatment.”
September 20, 2024
John Doe v. Ted Dean (in his official capacity); Case No. 2023-CA-0844-MR
Judges Caldwell, Combs, & Easton
Re: “Anti-Grandfather Clause” of Sex Offender Registry Out of Mercer County
Affirmed CC dismissal of Doe’s Complaint and Petition for Declaratory Judgment challenging the “anti-grandfather clause” of the SORA residence restrictions within KRS 17.545(3)(b). Doe alleges multiple issues relating to the clause: uncompensated taking and violation of right to acquire and protect property, an “absolute and arbitrary state action,” an ex post facto law, a bill of attainder, and void for vagueness (though not vague as it applies to Doe). The CC dismissed Doe’s case upon the AG’s motion for failure to state a claim, concluding that the statute is not unconstitutional. The CC affirmed.
The effect of the clause does not constitute a “taking” because the fair market value of the home has not been diminished and has not significantly interfered with his investment-backed expectations because, though “his expectation was to live in the home, Doe was always aware of the possibility that he may have to move” if his residence fell out of compliance with SORA. The same argument as to the Takings Clause appears to render the same as the right to acquire and protect property: “the sparse law under sec. 1 would appear to draw the line at an excessive taking of essentially all beneficial use of the property rather than an immeasurable and indirect burden to property value imposed by residency restrictions.” The clause is not “absolute and arbitrary state action” or violate the Fifth Amendment’s Due Process protections because the clause is rationally related to a legitimate government interest: the residency restrictions are at least rationally related to protecting children.
The SORA is not an ex post facto law because it took effect in 2006 and Doe pled guilty in 2007; additionally, just because his residence was compliant when he moved and the daycare was built afterward does not make it an ex post facto law because “the changing ‘zones’ of where a sex offender may reside because of changing events after conviction is not within the contemplation of ex post facto jurisprudence.” The clause is not a bill of attainder because, while a judicial process is required for determination of guilt, it does not compare to “a legislative enactment which may have permissible subsequent consequences due to a prior judicial determination of committing a crime.” Lastly, as to the void for vagueness argument, the word “residence” was sufficiently defined in the SORA statutory scheme and therefore is not vague.
September 13, 2024
Calloway v. Commonwealth; Case No. 2023-CA-0143-MR
Judges Acree, Cetrulo, & Taylor
Re: Ineffective Assistance of Counsel Out of Jefferson County
Affirmed CC order that Calloway had not received ineffective assistance of counsel. Calloway alleged IAC of both his trial and appellate counsel, specifically in regard to failures to challenge jury instructions that prevented the jury from reaching a unanimous verdict. Additionally, he alleged that his appellate counsel failed to properly raise the trial court’s denial of three for-cause challenges to jurors and the trial counsel’s deficient performance for not calling an expert witness or Calloway himself to testify. COA found that neither trial nor appellate counsel were deficient in failing to raise the unanimous verdict issue because Kentucky’s jurisprudence was not sufficiently clear on the issue at the time; additionally, even if it were, it is not clear that it prejudiced Calloway. COA found that the trial counsel offered a reasonable explanation for not calling the expert as a trial strategy and that Calloway decided not to testify, neither of which rise to the level of IAC.
September 6, 2024
Watkins v. Watkins; Case No. 2022-CA-1472-MR
Judges Acree, Combs, & Eckerle
Re: Grandparent Visitation Out of Fayette County
Affirmed FC order denying Grandmother’s motion for grandparent visitation. The case began when Child was taken to the ER with burns. Child was placed with Great Aunt (Grandmother’s sister). Two years later, Grandmother petitioned for sole custody, then amended her petition to seek only grandparent visitation. Applying the factors from Walker v. Blair in its KRS 405.021(1)(a) analysis, the FC properly denied Grandmother’s motion for grandparent visitation. 382 S.W.3d 862, 871 (Ky. 2012).
Hawthorne v. Commonwealth; Case No. 2023-CA-1468-MR
Judges Cetrulo, Jones, & McNeill
Re: Jury Change of Verdict Out of Carlisle County
Vacated and remanded the judgment based on the CC’s erroneous decision to permit the jury to change its verdict. Hawthorne was indicted for first-degree unlawful transaction with a minor and first-degree sexual abuse. The CC ruled that the sexual abuse (1-5 years) merged with the unlawful transaction of a minor (10-20 years) as a lesser included offenses. The CC instructed the jury that Hawthorne could be found guilty of either first-degree unlawful transaction or sexual abuse. The jury returned with a verdict for sexual abuse. At the sentencing phase, upon hearing the testimony of the probation and parole officer as to parole eligibility on a five-year sentence, the jury returned a question “What happens if we wrote verdict on wrong line? We recommend 10 years for Unlawful Transaction with a minor.” Only the Commonwealth moved for a mistrial at that point, which the court denied. A repoll of the jury showed that the verdict was indeed intended to be unlawful transaction with a minor. The jury was sent back with the same set of jury instructions, on which they returned a verdict of both offenses. The jury was admonished and sent back to the deliberation room. When they returned again, the form was corrected, with a verdict only of unlawful transaction with a minor. A repoll affirmed the new verdict. At this point, prior to the penalty phase, Hawthorne then moved for a mistrial, and her motion was denied.
The Commonwealth argued that the change was merely a change in form, not in substance, and that such fact was apparent in the jury’s polling; the Commonwealth also argued that any information given in the truth-in-sentencing testimony to the jury during the penalty phase was harmless. The COA disagreed on both fronts. The Kentucky Supreme Court previously held in Jackson v. Commonwealth that a trial court cannot require a jury to reconsider its verdict after it had deliberate, returned, and read its verdict. 196 S.W.2d 865, 855-856 (Ky. 1946). Again in Sutton v. Commonwealth, the Kentucky Supreme Court stated that, “[w]here correctly instructed, if a jury returns a verdict correct in form, it may not be resubmitted to the jury for substantive change. … Where the mistake is one of form, apparent on the face of the verdict, the court may point out the error and require the Jury to return a verdict consistent with the instructions.” 627 S.W.3d 836, 856 (Ky. 2021). The change in this case was substantive and the error was not apparent on the face of the verdict, nor was it apparent in the polling of the jury. Therefore, permitting the change in the verdict was erroneous.
Additionally, even if the change was one of form rather than substance, it is implausible to conclude that letting the jury hear the truth-in-sentencing testimony prior to changing the verdict was not harmless. The Kentucky Supreme Court has acknowledged that the bifurcated trial and the truth-in-sentencing statute “is designed to provide the jury with information relevant to arriving at an appropriate sentence for a particular offense.” Furnish v. Commonwealth, 267 S.W.3d 656, 661 (Ky. 2007). The Kentucky Supreme Court further explained that the trial is bifurcated so that the truth-in-sentencing phase will not improperly influence the jury during the guilt/innocence phase. The COA here emphasizes that “[t]he jury did not indicate concern [about the verdict] until after the verdict was complete and the sentencing phase began…. This error is not harmless due to the resulting unauthorized sentence.”
Summaries of Kentucky Court of Appeals:
November 08, 2024
Van Gansbeke v. Van Gansbeke; Case No. 2023-CA-0942-MR
Judges Acree, Easton, & Goodwine
Re: Friend of the Court Report Out of Jefferson County
COA vacated and remanded FC’s order because the FC violated Father’s statutory right to a meaningful opportunity to challenge a FOC’s sources and report. KRS 403.300(3) provides the right for a parent to request a FOC to submit to the parent the underlying data and reports (sources) from which their report was created. Father made such a request, but due to the FOC’s error typing in his email address, Father did not actually receive the sources until the morning of the hearing. Father moved to exclude the report, claiming he had too little time to review it to properly cross-examine the FOC on the matter. The FC denied the motion. Father cross-examined the FOC nearly a month later, as half of the hearing was continued to the later date.
COA held that the FC erred by admitting the report of the FOC, not because of lack of notice due to the email typo, but because the FC’s protective order prohibiting Father from deposing Dr. Hammon deprived him of sufficient notice of the report’s sources and the opportunity to refute them, as required by KRS 403.300(3) and explained in Greene v. Boyd, 603 S.W.3d 231, 240 (Ky. 2020).
Adams v. Commonwealth; Case No. 2023-CA-1415-MR
Judges Thompson, Acree, & Caldwell
Re: Denial of Motion to Suppress Out of Fayette County
Affirmed CC denial of Defendant’s motion to suppress the search of his car, arguing the drug dog’s search around the car’s exterior impermissibly extended the length of the stop. Officer Hempel pulled over Defendant after witnessing him enter the wrong lane of traffic to pass multiple vehicles stopped at a stop sign. Defendant, upon stopping in a parking lot, stepped out of the car with his hands up. Officer Hempel ordered him back in the car multiple times, but he did not obey. Officer Hempel patted down Defendant and called for backup, which arrived within three minutes. Officer Hempel ran the standard checks on the car and Defendant, which came up as multiple active arrest warrants. Officer Hempel requested dispatch to confirm the arrest warrants, which they did, and requested a drug dog. The drug dog arrived less than 20 minutes after the stop began and checked the exterior of the vehicle, alerting, and dispatch soon confirmed the validity of the warrants. All of this was occurring as Officer Hempel was completing the traffic stop paperwork in his cruiser.
COA affirmed CC’s denial of Defendant’s motion to suppress, citing first that the issue was not properly preserved because Defendant failed to raise the issue before the trial. Regardless, the COA asserts, “this minimal extension of the stop was reasonable.” Citing a string of SCOTUS cases, specifically U.S. v. Hensley (1985) and Rodriguez v. U.S. (2015), and a Kentucky Supreme Court Case, Carlisle v. Commonwealth, (Ky. 2020). Additionally, the COA cited to another Kentucky Supreme Court case for support that “discovery of an outstanding warrant as part of a traffic stop provides new probable cause for the resulting increased duration of such stop,” relevant in this case, as the warrants were discovered prior to calling for the dog and confirmed by dispatch while the dog was sniffing. Rhoton v. Commonwealth, 610 S.W.3d 273, 279 (Ky. 2020).
October 25, 2024
Van Gansbeke v. Van Gansbeke; Case No. 2023-CA-0942-MR
Judges Acree, Easton, & Goodwine
Re: Friend of the Court Report Out of Jefferson County
COA vacated and remanded FC’s order because the FC violated Father’s statutory right to a meaningful opportunity to challenge a FOC’s sources and report. KRS 403.300(3) provides the right for a parent to request a FOC to submit to the parent the underlying data and reports (sources) from which their report was created. Father made such a request, but due to the FOC’s error typing in his email address, Father did not actually receive the sources until the morning of the hearing. Father moved to exclude the report, claiming he had too little time to review it to properly cross-examine the FOC on the matter. The FC denied the motion. Father cross-examined the FOC nearly a month later, as half of the hearing was continued to the later date.
COA held that the FC erred by admitting the report of the FOC, not because of lack of notice due to the email typo, but because the FC’s protective order prohibiting Father from deposing Dr. Hammon deprived him of sufficient notice of the report’s sources and the opportunity to refute them, as required by KRS 403.300(3) and explained in Greene v. Boyd, 603 S.W.3d 231, 240 (Ky. 2020).
Adams v. Commonwealth; Case No. 2023-CA-1415-MR
Judges Thompson, Acree, & Caldwell
Re: Denial of Motion to Suppress Out of Fayette County
Affirmed CC denial of Defendant’s motion to suppress the search of his car, arguing the drug dog’s search around the car’s exterior impermissibly extended the length of the stop. Officer Hempel pulled over Defendant after witnessing him enter the wrong lane of traffic to pass multiple vehicles stopped at a stop sign. Defendant, upon stopping in a parking lot, stepped out of the car with his hands up. Officer Hempel ordered him back in the car multiple times, but he did not obey. Officer Hempel patted down Defendant and called for backup, which arrived within three minutes. Officer Hempel ran the standard checks on the car and Defendant, which came up as multiple active arrest warrants. Officer Hempel requested dispatch to confirm the arrest warrants, which they did, and requested a drug dog. The drug dog arrived less than 20 minutes after the stop began and checked the exterior of the vehicle, alerting, and dispatch soon confirmed the validity of the warrants. All of this was occurring as Officer Hempel was completing the traffic stop paperwork in his cruiser.
COA affirmed CC’s denial of Defendant’s motion to suppress, citing first that the issue was not properly preserved because Defendant failed to raise the issue before the trial. Regardless, the COA asserts, “this minimal extension of the stop was reasonable.” Citing a string of SCOTUS cases, specifically U.S. v. Hensley (1985) and Rodriguez v. U.S. (2015), and a Kentucky Supreme Court Case, Carlisle v. Commonwealth, (Ky. 2020). Additionally, the COA cited to another Kentucky Supreme Court case for support that “discovery of an outstanding warrant as part of a traffic stop provides new probable cause for the resulting increased duration of such stop,” relevant in this case, as the warrants were discovered prior to calling for the dog and confirmed by dispatch while the dog was sniffing. Rhoton v. Commonwealth, 610 S.W.3d 273, 279 (Ky. 2020).
October 18, 2024
Superash Remainderman, LP v. Ashland, LLC; Case No. 2023-CA-0427-DG
Judges Easton, Eckerle, & Lambert
Re: Forcible Detainer Complaints Out of Jefferson, Fayette, and Harrison County
COA reversed and remanded Circuit Courts’ holdings affirming the District Courts’ rulings, remanding them to the respective District Courts to adjudicate only matters of law and not equity, unless statutorily authorized to do so. The District Courts originally granted equitable relief, which was affirmed by the Circuit Courts, and summarily addressed crucial issues, relying on the findings of an Ohio Court, rather than making initial findings of their own jurisdiction.
Bentley v. Etherton; Case No. 2023-CA-0560-MR
Judges Acree, Easton, & Goodwine
Re: Denial of Modification of Grandparent Custody/Visitation Out of Bullitt County
Affirmed CC denial of Grandparents’ motion to modify custody or visitation of their minor grandson. Mother murdered Father and executed a medical POA for Child, granting POA to (maternal) Great-Aunt, as well as physical custody, prior to Mother being taken into custody. Great-Aunt initiated a DNA petition in which she was awarded temporary custody. Less than a week later, Grandparents initiated a grandparents’ visitation action, which was dismissed, and Grandparents sought to intervene in the Bullitt County DNA action. The parties agreed to a set visitation schedule, which was entered by the CC.
Grandparents later filed multiple motions, including challenging Great-Aunt’s custody, requesting the Bullitt judge recuse herself, and requesting the case be moved to Henry County, where Grandparents originally filed an action. The Bullitt court denied all of these motions and later, upon motion by Great-Aunt, granted Great-Aunt permanent custody. Grandparents did not appeal that order.
COA held that Grandparents’ appeal of the DNA case in the custody case was not properly before the COA. COA also held that the Friend of the Court (FOC) satisfied his obligation to the court under KRS 403.290 and 403.300, and that the COA’s limited review of FOCs focuses on whether the CC erred relative to the FOC’s report, which Grandparents did not allege.
October 11, 2024
Commissioner of Dep’t Workplace Standards v. Kalkreuth Roofing and Sheet Metal, Inc.; Case No. 2023-CA-0649-MR
Judges Acree, Jones, & Taylor
Re: KY Occupational Safety and Health Review Commission Out of Franklin County
The Franklin Circuit Court affirmed a Final Decision and Order of the KY OSHRC (“the Commission”), which dismissed a citation and penalty against Appellee, appealed by the Commissioner of the Department of Workplace Standards, Education, and Labor Cabinet (“the Cabinet”). COA affirmed the Franklin Circuit Court decision, holding that the Commission’s and CC’s interpretation of the regulation is supported by reading the regulation and definition of secondary fall protection congruently. The Cabinet’s interpretation, on the other hand, “unnecessarily strains the principles controlling the review and legal interpretations of the terms used in regulations,” and “unilaterally attempts to overturn long-standing and well-established practices without any showing that those practices have caused any harm or danger.”
COA gave caution to the practice of statutory interpretation of an administrative agency’s prior interpretation, referencing SCOTUS’s recent overturn of Chevron deference in the 2024 case of Loper Bright Enterprises, and SCOTUS’s admonition of such deference to administrative agencies when they wrote that “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Loper Bright Enterprises, at 2273. “Regardless of the recent opinion,” the COA writes, “Chevron deference or the rescindment thereof has no real impact here,” for two reasons: (1) Chevron deference would not apply to the Cabinet’s decision, and (2) “the Commission, not the Cabinet, is designated as the primary arbiter” as they are the organization with the express authority to hear and rule on appeals, and therefore “the Commission does not have to defer to the Cabinet.” Additionally, the COA held that the regulation at issue is not ambiguous, and therefore Chevron deference could not have been applied to the interpretation anyway.
Lesley Ryan Cornett v. Commonwealth; Case No. 2023-CA-0680-MR
Judges Acree, Easton, & Goodwine
Re: Denial of Directed Verdict and Probation Out of Perry County
Affirmed CC denial of directed verdict and probation in a criminal case which charged and convicted Cornett of possession of a controlled substance, namely LSD. Cornett appealed on the basis that the Commonwealth failed to present sufficient evidence of the mens rea of the crime – knowing possession – because Cornett “believed he purchased and was in possession of a different controlled substance, Suboxone, not LSD.” The COA rejects the premise that “the Commonwealth was required to present evidence of Cornett’s knowledge he was in possession of LSD, specifically … after interpreting the legislative intent underlying the relevant statute.” The COA holds that all that the statute requires is that a defendant “intended to purchase, believed he did purchase, and thought he was in possession of a controlled substance. … The Commonwealth is not required to further prove a defendant knew which controlled substance he possessed.”
The COA held that the issue whether the CC erred by denying probation is moot because it is undisputed that Cornett served his sentence in full, and that the issue does not fall within the mootness exception of “capable of repetition, yet evading review.” The issue does not evade review because the maximum sentence for the crime charged was three (3) years, so the “shelf life” of the issue is measured in months and years as a felony, not in days, just as was pointed out in Commonwealth v. Collinsworth, 628 S.W.3d 82, 86-87 (Ky. 2021).
Masonic Homes of Kentucky v. Estate of Raymond Leist, Jr.; Case No. 2024-CA-0054-MR
Judges Thompson, Easton, & Karem
Re: Staying Litigation and Compelling Arbitration Out of Jefferson County
Affirmed CC denial of motion by Masonic Homes to stay litigation proceedings and compel arbitration. Frank was appointed as Raymond’s Durable Power of Attorney prior to Raymond’s dementia. Frank executed the admission forms for Raymond’s stay at the Masonic Homes residential treatment facility, including an (optional) arbitration clause, signing as the “Resident Representative,” on behalf of Raymond. Raymond died within 11 days of residency at Masonic Homes, and Ray’s estate and beneficiaries filed suit alleging negligence, wrongful death, and loss of consortium. The CC denied Masonic Homes’s motion to stay the proceedings and compel arbitration on the negligence claim, “finding that the DPOA did not give Frank the power to enter into an arbitration agreement on Ray’s behalf.”
COA held that, similar to the Kindred Nursing Centers case in which “Beverly had no authority to enter into the pre-dispute agreement on behalf of Joe, Frank had no authority to enter into the arbitration agreement on behalf of Ray.” Additionally, Masonic Homes failed to argue in Circuit Court “that the Uniform Power of Attorney Act provided Frank the authority through the DPOA to bind the principal, Ray, to arbitration,” and therefore cannot argue it for the first time on appeal to COA.
General Motors v. Brandi Woods; Case No. 2024-CA-0091-WC
Judges Caldwell, Cetrulo, & Eckerle
Re: ALJ Award of Benefits From the Workers’ Compensation Board
Affirmed ALJ award of benefits to Woods from the Workers’ Compensation Board (“the Board”), denying GM’s argument that “the ALJ erroneously included a lump sum vacation payment in calculating Woods’ average weekly wage.” The ALJ considered both parties’ arguments for and against including the vacation payment in the 13-week period, but agreed with Woods that it should be included, for which GM appeals claiming that “it was not a substitute for work,” and instead “represented 56 hours of vacation pay.” The Board rejected GM’s arguments to exclude the payment, explaining that the average weekly wage also included weeks in which Woods was paid $0, to which GM did not object, so it was a fair reading of the statute that the Board should also include payments such as the vacation payment in its calculation.
September 27, 2024
Helmbrecht v. Bailey Jaynes Bakery and Cafe; Case No. 2023-CA-1033-MR
Judges Acree, Easton, & Goodwine
Re: Wrongful Death from Donut Eating Contest Out of Boone County
Helmbrecht is the administratix of the estate of Chavez who died from asphyxiation from a donut eating contest in Boone County. Helmbrecht filed suit asserting multiple claims relating to Chavez’s death: various negligence claims, wrongful death, loss of consortium, NIED, and others. Defendant City of Walton filed a motion to dismiss, asserting the waiver as a complete bar, and Jaynes joined in on the motion. The CC treated the motion as one for summary judgment, dismissing all claims as barred by the waiver, but concluding the willful and wanton negligence claim failed as a matter of law. Helmbrecht appeals specifically to the decision on three of the claims: negligence, gross negligence, and willful or wanton negligence in the “provision of emergency medical services.”
COA affirmed that the waiver was enforceable against the negligence and gross negligence claims. However, the waiver did not cover willful and wanton negligence, so that claim remains viable because the summary judgment reviewed only the waiver and not whether there was an absence of evidence supporting the claim.
W.H.J. v. J.N.W.; Case No. 2023-CA-1474-ME
Judges Eckerle, Goodwine, & McNeill
Re: Contested Adoption Out of Warren County
Affirmed FC grant of the contested adoption of Child by Stepfather. Father and Mother divorced when Child was 3 years old, and Father fell down a path of substance abuse and crime and failed to comply with court orders for substance abuse and mental health assessments, attend parenting classes, and pay child support. Father also admitted to intentionally failing to visit Child for years. Upon the marriage of Mother to Stepfather, Stepfather attempted to adopt Child. This first attempt was appealed and reversed and remanded “due to the Family Court’s inadequate explanation of the right of an indigent person to receive complimentary counsel.” On remand, Father requested a continuance to find counsel after the FC found him to not be indigent, but the FC denied the request, asserting that Father had already had almost two years to retain counsel. The FC again granted the adoption, finding that Father had deliberately abandoned Child for more than 90 days and intentionally relinquished his parental role and duties for more than six months and saw no reasonable expectation for his improvement.
Father argued that the FC failed to provide him with an attorney at no cost violating his DP rights and that there was insubstantial evidence produced to support the FC’s findings. COA found that the FC’s findings that Father was not indigent satisfied their remand requirement of appointing counsel if found indigent. COA also found that, while Father may have had some reasons to not have contact with Child following the divorce and during his crime issues, there were no attempts on his part to reinstate visitation or have the no-contact order lifted in the four years of adoption proceedings, nor did Father consistently pay child support until a month before the filing of the adoption proceeding after falling $25,000+ in arrears. COA explained that “Father had zero involvement in Child’s life for over five years and did not seek any contact until Court proceedings were initiated to stop him from doing so in the future,” and that was “unrefuted evidence that he abandoned Child” for the statutory period. COA also called Father’s other arguments regarding his failures to follow FC orders regarding substance abuse and mental health assessments and treatment, as well as attending a parenting class, were “red herrings to distract from Father’s abandonment of Child,” and “unsupported as Father did not submit evidence of parental classes or substance abuse treatment.”
September 20, 2024
John Doe v. Ted Dean (in his official capacity); Case No. 2023-CA-0844-MR
Judges Caldwell, Combs, & Easton
Re: “Anti-Grandfather Clause” of Sex Offender Registry Out of Mercer County
Affirmed CC dismissal of Doe’s Complaint and Petition for Declaratory Judgment challenging the “anti-grandfather clause” of the SORA residence restrictions within KRS 17.545(3)(b). Doe alleges multiple issues relating to the clause: uncompensated taking and violation of right to acquire and protect property, an “absolute and arbitrary state action,” an ex post facto law, a bill of attainder, and void for vagueness (though not vague as it applies to Doe). The CC dismissed Doe’s case upon the AG’s motion for failure to state a claim, concluding that the statute is not unconstitutional. The CC affirmed.
The effect of the clause does not constitute a “taking” because the fair market value of the home has not been diminished and has not significantly interfered with his investment-backed expectations because, though “his expectation was to live in the home, Doe was always aware of the possibility that he may have to move” if his residence fell out of compliance with SORA. The same argument as to the Takings Clause appears to render the same as the right to acquire and protect property: “the sparse law under sec. 1 would appear to draw the line at an excessive taking of essentially all beneficial use of the property rather than an immeasurable and indirect burden to property value imposed by residency restrictions.” The clause is not “absolute and arbitrary state action” or violate the Fifth Amendment’s Due Process protections because the clause is rationally related to a legitimate government interest: the residency restrictions are at least rationally related to protecting children.
The SORA is not an ex post facto law because it took effect in 2006 and Doe pled guilty in 2007; additionally, just because his residence was compliant when he moved and the daycare was built afterward does not make it an ex post facto law because “the changing ‘zones’ of where a sex offender may reside because of changing events after conviction is not within the contemplation of ex post facto jurisprudence.” The clause is not a bill of attainder because, while a judicial process is required for determination of guilt, it does not compare to “a legislative enactment which may have permissible subsequent consequences due to a prior judicial determination of committing a crime.” Lastly, as to the void for vagueness argument, the word “residence” was sufficiently defined in the SORA statutory scheme and therefore is not vague.
September 13, 2024
Calloway v. Commonwealth; Case No. 2023-CA-0143-MR
Judges Acree, Cetrulo, & Taylor
Re: Ineffective Assistance of Counsel Out of Jefferson County
Affirmed CC order that Calloway had not received ineffective assistance of counsel. Calloway alleged IAC of both his trial and appellate counsel, specifically in regard to failures to challenge jury instructions that prevented the jury from reaching a unanimous verdict. Additionally, he alleged that his appellate counsel failed to properly raise the trial court’s denial of three for-cause challenges to jurors and the trial counsel’s deficient performance for not calling an expert witness or Calloway himself to testify. COA found that neither trial nor appellate counsel were deficient in failing to raise the unanimous verdict issue because Kentucky’s jurisprudence was not sufficiently clear on the issue at the time; additionally, even if it were, it is not clear that it prejudiced Calloway. COA found that the trial counsel offered a reasonable explanation for not calling the expert as a trial strategy and that Calloway decided not to testify, neither of which rise to the level of IAC.
September 6, 2024
Watkins v. Watkins; Case No. 2022-CA-1472-MR
Judges Acree, Combs, & Eckerle
Re: Grandparent Visitation Out of Fayette County
Affirmed FC order denying Grandmother’s motion for grandparent visitation. The case began when Child was taken to the ER with burns. Child was placed with Great Aunt (Grandmother’s sister). Two years later, Grandmother petitioned for sole custody, then amended her petition to seek only grandparent visitation. Applying the factors from Walker v. Blair in its KRS 405.021(1)(a) analysis, the FC properly denied Grandmother’s motion for grandparent visitation. 382 S.W.3d 862, 871 (Ky. 2012).
Hawthorne v. Commonwealth; Case No. 2023-CA-1468-MR
Judges Cetrulo, Jones, & McNeill
Re: Jury Change of Verdict Out of Carlisle County
Vacated and remanded the judgment based on the CC’s erroneous decision to permit the jury to change its verdict. Hawthorne was indicted for first-degree unlawful transaction with a minor and first-degree sexual abuse. The CC ruled that the sexual abuse (1-5 years) merged with the unlawful transaction of a minor (10-20 years) as a lesser included offenses. The CC instructed the jury that Hawthorne could be found guilty of either first-degree unlawful transaction or sexual abuse. The jury returned with a verdict for sexual abuse. At the sentencing phase, upon hearing the testimony of the probation and parole officer as to parole eligibility on a five-year sentence, the jury returned a question “What happens if we wrote verdict on wrong line? We recommend 10 years for Unlawful Transaction with a minor.” Only the Commonwealth moved for a mistrial at that point, which the court denied. A repoll of the jury showed that the verdict was indeed intended to be unlawful transaction with a minor. The jury was sent back with the same set of jury instructions, on which they returned a verdict of both offenses. The jury was admonished and sent back to the deliberation room. When they returned again, the form was corrected, with a verdict only of unlawful transaction with a minor. A repoll affirmed the new verdict. At this point, prior to the penalty phase, Hawthorne then moved for a mistrial, and her motion was denied.
The Commonwealth argued that the change was merely a change in form, not in substance, and that such fact was apparent in the jury’s polling; the Commonwealth also argued that any information given in the truth-in-sentencing testimony to the jury during the penalty phase was harmless. The COA disagreed on both fronts. The Kentucky Supreme Court previously held in Jackson v. Commonwealth that a trial court cannot require a jury to reconsider its verdict after it had deliberate, returned, and read its verdict. 196 S.W.2d 865, 855-856 (Ky. 1946). Again in Sutton v. Commonwealth, the Kentucky Supreme Court stated that, “[w]here correctly instructed, if a jury returns a verdict correct in form, it may not be resubmitted to the jury for substantive change. … Where the mistake is one of form, apparent on the face of the verdict, the court may point out the error and require the Jury to return a verdict consistent with the instructions.” 627 S.W.3d 836, 856 (Ky. 2021). The change in this case was substantive and the error was not apparent on the face of the verdict, nor was it apparent in the polling of the jury. Therefore, permitting the change in the verdict was erroneous.
Additionally, even if the change was one of form rather than substance, it is implausible to conclude that letting the jury hear the truth-in-sentencing testimony prior to changing the verdict was not harmless. The Kentucky Supreme Court has acknowledged that the bifurcated trial and the truth-in-sentencing statute “is designed to provide the jury with information relevant to arriving at an appropriate sentence for a particular offense.” Furnish v. Commonwealth, 267 S.W.3d 656, 661 (Ky. 2007). The Kentucky Supreme Court further explained that the trial is bifurcated so that the truth-in-sentencing phase will not improperly influence the jury during the guilt/innocence phase. The COA here emphasizes that “[t]he jury did not indicate concern [about the verdict] until after the verdict was complete and the sentencing phase began…. This error is not harmless due to the resulting unauthorized sentence.”