SCOKY Decisions - Apr. 20, 2006 (Vol. 2006:19)

KBA V. KENNETH EUGENE RYLEE, JR.
ATTORNEYS
2006-SC-000134-.pdf
PUBLISHED
OPINION AND ORDER PERMANENTLY DISBARRING RESPONDENT FROM THE PRACTICE OF LAW
DATE: 4/20/2006

KBA V. HARRY D. WILLIAMS
ATTORNEYS
2006-SC-000173-.pdf
PUBLISHED
OPINION AND ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW FOR 181 DAYS
DATE: 4/20/2006

KBA V. JOHN GRANT COOK
ATTORNEYS
2006-SC-000091-KB
PUBLISHED
OPINION AND ORDER, ORDERING THE RESPONDENT PAY A FINE OF $300 FOR NON-COMPLIANCE WITH CLE REQUIREMENTS
DATE: 4/11/2006

KBA V. KEVIN LEE NESBITT
ATTORNEYS
2006-SC-000057-.pdf
PUBLISHED
OPINION AND ORDER PUBLICLY REPRIMANDING RESPONDENT
DATE: 4/20/2006

KBA V. MARK BLAIR GELLER
ATTORNEYS
2006-SC-000075-.pdf
PUBLISHED
OPINION AND ORDER SUSPENDING THE RESPONDENT FROM THE PRACTICE OF LAW
DATE: 4/20/2006

KINDRED HOSPITALS LTC V. LUTRELL
APPEALS
2006-SC-000093-I.pdf
PUBLISHED
AFFIRMING (DENYING KINDRED'S CR 65.09 MOTION); SCOTT
Kindred moved the trial court under KRS 417.050, part of the Kentucky Uniform Arbitration Act (KUAA) to dismiss or, in the alternative, stay proceedings pending arbitration of the parties' controversy. The trial court refused, finding Luttrell had no authority to bind her mother or her mother's estate to arbitration when she placed her mother in Kindred's nursing home. Kindred appealed to the CA under CR 65.07, which the CA denied as having been improperly taken. Kindred then appealed to the SOK under CR 65.09; the SOK found that Kindred had failed to show "extraordinary cause" as required and denied the motion.

The meat of this opinion does not deal with the substance of Kindred's appeal, but with the SOK's finding that the CA incorrectly applied the tenets of the KUAA in its ruling against Kindred. The CA had held that CR 65.07 was not the proper mechanism for a party to appeal a trial court's denial of a motion to stay pending arbitration. The CA ruled that KRS 417.220(2)'s language, which provides that an appeal from a judgment "shall be taken in the manner and to the same extent as from orders or judgments in a civil action," requires a notice of appeal as if from a final judgment, rendering CR 65.07 inappropriate in such circumstances. The SOK pointed out that state and federal courts have often found that denials of motions to compel arbitration and stay litigation are akin to denials of injunctions.

The SOK held that this appeal stemmed directly from the trial court's denial of a motion made pursuant to KRS 417.050, and thus the appellate mechanism in KRS 417.220(2), though somewhat vague in its requirements, served as the appropriate basis for appeal in this case. However, to require a notice of appeal and to rule in such a way as to foreclose the use of the appellate review mechanism provided by CR 65.07 in cases where the KUAA applies, as the CA did, is contrary to the language of KRS 417.220, i.e, "to the same extent as from orders or judgments in a civil action." The SOK points out that nowhere in KRS 417.220 is there an explicit requirement that a party must submit a notice of appeal, nor do its terms dictate that such a notice is required. Nor does KRS 417.220(2) restrict appeals of enumerated items in KRS 417.220(1) to one mechanism. Rather, the statute recognizes that interlocutory relief may be afforded a party whose appeal is enumerated in KRS 417.220(1). "Thus, it is of no consequence if a case is an employment arbitration dispute to which KUAA is inapplicable or a case where KUAA is applicable, such as the present one. What matters is that the party bringing the appeal has met the requisite burden and has complied with whatever appellate mechanism is being utilized to contest the trial court's decision. Here, Kindered chose to use CR 65.07, and in doing so, it had a high burden to meet in order to obtain the relief requested."

The SOK pointed out that it recently held in Cavalier Homes of Alabama v. Coleman, 181 S.W.3d 558 (2005), that a party who sought extraordinary relief under CR 81 after a denial of a motion to stay pending arbitration could not do so because the form of relief sought was contrary to the statutory remedy allowed under KRS 417.220. It noted that the appellant in Cavalier sought an original action for which KRS 417.220 gave no support. The holding in the instant case doesn't contradict Cavalier but rather extends its holding to acknowledge that parties may also utilize CR 65.07, where they can meet the "higher" burden, so that a request for interlocutory relief may be had as from orders or judgments in a civil action.

In sum: a party may appeal the decision of a trial court that implicates any of the items in KRS 417.220(1) utilizing either a motion for interlocutory relief under CR 65.07 or a notice of appeal under CR 73, so long as that party fulfills the requirements and meets inthe burdens in so making an appeal. HOWEVER, in the future, a party may choose ONLY ONE of these routes.

EDMONDS V. COM.
CRIMINAL - Severance
2004-SC-001003-MR.pdf
PUBLISHED
AFFIRMING; COOPER
DATE: 4/20/2006

SC affirmed Defendant's conditional pleas and 20 year sentence for various sex offenses in Jefferson Circuit Court. TC properly denied motion to sever counts. Evidence of the acts committed against each victim would have been admissible in Defendant's separate prosecutions for offenses committed against the other had the trial court granted his motion to sever. Further, the lapse of eleven weeks between the separate offenses does not warrant severance. Criminal Rule (RCr) 9.16 states that a trial court shall order separate trials for counts in an indictment "[i]f it appears that a defendant . . . will be prejudiced by a joinder of offenses." A criminal defendant is entitled to a severance only upon a showing, prior to trial, that joinder would be unduly prejudicial. Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992). "A significant factor in identifying such prejudice is the extent to which evidence of one offense would be admissible in a trial of the other offense." Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993).

COMBS V. COM.
CRIMINAL – UTM, Sexual Abuse
2004-SC-001005-MR.pdf
PUBLISHED
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING; COOPER
DATE: 4/20/2006

SC affirmed Defendant's conviction of Sexual Abuse 1^st and reversed conviction of Unlawful Transaction with a Minor 1^st Degree and remanded that count for a new trial on the lesser offense of Sexual Abuse 1^st Degree.

KRS 530.064(1) provides : A person is guilty of unlawful transaction with a minor in the first degree when he knowingly induces, assists or causes a minor to engage in illegal sexual activity, . . . except those offenses involving minors in KRS Chapter 531 [pornography and sexual exploitation of minors] and KRS 529.030 [prostitution].

Any sexual activity with a child less than twelve years of age is illegal, regardless of the age of the perpetrator. “To induce" signifies a successful persuasion; that the act has been effective and the desired result obtained." and that "'to engage' denotes action and means 'to employ one's self; to take part in ."' Thus, to complete the offense, the minor must consent to and actively participate in the activity. By A.H .'s own account that she "did not want him to do it," she did not consent to and actively participate in Defendant's fondling of her breasts and vagina or his digital

penetration of her vagina. She specifically testified with respect to the masturbation incident that Defendant attempted to induce her to touch his penis but that she refused to engage in that activity. Thus, she did not testify to any activity that could constitute a violation of KRS 530.064(1).

Thus, all of the sexual conduct described by A.H., except the masturbation incident, constituted Sexual Abuse 1^st, not UTM 1^st. While the evidence of the masturbation incident would have supported an instruction on a lesser included offense

of criminal attempt to commit UTM 1^st, KRS 506.010(1)(b) & (2), an instruction on that offense was neither requested nor given. We note in passing that logic supports the legislature's determination to assign a more severe penalty to a violation of KRS 530.064(1)(b) than to a violation of KRS 510.110(1)(b), thus concluding that it is more egregious to induce a child to willingly engage in illegal sexual activity than to subject an unwilling child to illegal sexual conduct.

The proscription against double jeopardy precludes the Commonwealth from prosecuting Defendant for criminal attempt to commit UTM 1 for the conduct at issue.

The issue certified: Can a certified copy of a breath-alcohol machine's maintenance and test records be admitted into evidence to show compliance with 500 KAR 8:020 § 2(1) without in-court testimony by the breath-alcohol technician who performed the maintenance and tests?

SC held in the affirmative in both Commonwealth v. Wirth, 936 S.W.2d 78, 82-83 (Ky. 1996), and Roberts v. Commonwealth, 122 S .W.3d 524, 528-29 (Ky. 2003). TC, however, held in this case that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed .2d 177 (2004) does in fact supersede the prior decisions of the Kentucky Supreme Court in Wirth and its progeny on this issue. SC disagreed.

In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment to the United States Constitution does not permit the use of court-created hearsay exceptions or other tests of "reliability," e.g_, the "particularized guarantees of trustworthiness" articulated in Ohio v. Roberts , 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), to admit testimonial hearsay statements against a defendant at a criminal trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. The Commonwealth does not assert either that Blankenship was unavailable for trial or that Respondent had a prior opportunity to cross-examine him.

Thus, the only issue is whether the notations Blankenship made in the documents reflecting his maintenance and the results of his tests on the Intoxilyzer machine were "testimonial ."

Every jurisdiction but one that has considered this issue since Crawford has concluded that maintenance and performance test records of breath-analysis instruments are not testimonial, thus their admissibility is not governed by Crawford. We conclude that the notations contained in Blankenship's reports were not testimonial, thus their admission into evidence was neither governed nor affected by the holding in Crawford.

The Commonwealth appeals a decision of the Court of Appeals which reversed the conviction of Buford for two counts of First-Degree Sexual Abuse. In its opinion, the Court of Appeals cited two primary rationales for reversing the conviction: (1) that the admission of testimony about an exchange between Buford and Greg Waldrop, a friend and fellow minister, was prohibited by the Fifth Amendment; and (2) that the testimony of Buford's niece, S.B ., relating to allegations of sexual abuse she had made several years earlier was improperly admitted under KRE 403 and KRE 404(b).

TC failed to correctly decide the preliminary issue of admissibility, namely, whether evidence of S.B.'s allegations qualified as an exception to our rule against the admissibility of prior bad acts. Ultimately, the Commonwealth must 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 . Notwithstanding the competing lists of facts and inferences offered by either party, there is nothing in the record of this case which demonstrates the requisite striking similarity between the incident involving S .B. and that involving J.R. or H .S.

The testimony at issue concerned Defendant's interaction with another private citizen--neither the government nor one of its agents was involved at any point in the exchange . Put simply, Defendant was confronted by a friend and colleague over troubling allegations of improper sexual behavior. While it was certainly Defendant's prerogative to refuse to discuss the matter with Waldrop, the Fifth Amendment cannot be used to shield this fact from the jury because constitutional protections against self-incrimination are not triggered absent state action.

POWELL V. COM.
CRIMINAL – Sufficiency of Evidence
2003-SC-000266-DG.pdf
PUBLISHED
AFFIRMING (COOPER)
JOHNSTONE DISSENTING WITH ROACH JOINING DISSENT
DATE: 4/20/2006

Upon discretionary review, SC affirmed Defendant’s conviction for reckless homicide. SC concluded that the evidence was sufficient for a reasonable jury to believe beyond a reasonable doubt that the methamphetamine that Powell injected into Bennett's vein caused her death.

The Commonwealth presented sufficient evidence that (1) the intravenous injection of methamphetamine administered by Powell caused Bennett's death; (2) there was a substantial and unjustifiable risk that Bennett would die as a result of the injection; and (3) the risk of Bennett's death was of such nature and degree that Powell's failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation, i .e. , that Bennett's death was foreseeable as a reasonable probability.

SC affirmed Schrimsher's convictions for Assault in the First Degree and related offenses. Schrimsher and his live-in girlfriend, Erica Porter, were indicted for Assault and Criminal Abuse in connection with allegations that their six-month old child suffered multiple injuries including skull fractures, leg fractures, assorted bruises, and a lacerated liver. Porter gave a statement to police

which incriminated Schrimsher. Before trial, Schrimsher filed a motion to sever his case from Porter's because he anticipated that Porter's statement may be used in the Commonwealth's case even though Porter may not be called as a witness. The trial court denied the motion to sever but allowed the prosecution to redact Porter's statement to eliminate any references to Schrimsher. At trial, Porter testified and was subject to cross examination by Schrimsher's counsel. The primary issue on appeal was whether the trial court committed reversible error by failing to grant the severance motion. Following Nelson v. O'Neill, 402 U.S. 622 (1971), the SC held that there was no error because Porter did, in fact, testify and was subject to cross examination. Consequently, there was no prejudice to Scrimsher.

SC reversed the CA opinion and reinstated Rodefer's conviction for Trafficking in Cocaine. The primary issue on appeal was whether the trial court's jury instructions defining "trafficking" as "possession with intent to transfer" constituted palpable error. The SC agreed that KRS 218A.010(34) does not prohibit possession of a controlled substance with intent to transfer. Therefore, to the extent that the trial court's instruction contained such language, the instruction was erroneous. However, the error was not palpable because there was sufficient evidence to convict Rodefer under other language in the tendered instruction. In fact, Rodefer testified at trial that he "shared" the 16 grams of cocaine that were found on his person with two of his accomplices on the night of the crime. Consequently, he was guilty of "transferring" cocaine which is prohibited by the trafficking statute.

SC addressed the following question of law from the Kenton District Court: Can a certified copy of a breath-alcohol machine's maintenance and test records be admitted into evidence to show compliance with 500 KAR 8:020 Section 2(1) without in-court testimony by the breath-alcohol technician who performed the maintenance and tests? The district court held that under Crawford v. Washington, 541 U.S. 36 (2004), the technician's out-of-court testimony (via a notarized statement) was "testimonial" and therefore inadmissible. Aligning itself with a majority of jurisdictions that have addressed this issue,

Combs was convicted of Unlawful Transaction with a Minor and Sexual Abuse in the First Degree and was sentenced to a total of 20 years. SC held that the Commonwealth's evidence that Combs digitally penetrated the vagina of the child victim (who was less than 12 years old) was insufficient to constitute UTWM. However, it was sufficient to constitute Sexual Abuse in the First Degree. Therefore, the UTWM conviction was reversed and the count was remanded for a new trial on the lesser offense of Sexual Abuse.

KY CABINET FOR HEALTH AND FAMILY SERVICES V. A.G.G.
EVIDENCE - KRE 803(4) and statements made for purposes of diagnosis and treatment to person not a physician
FAMILY LAW - Involuntary termination of parental rights (evidence)
2005-SC-000631-DGE.pdf
PUBLISHED
REVERSING; COOPER
DATE: 4/20/2006

SC reversed the CA's ruling and reinstated the Family Court's termination of A.G.G. and W.E.G.'s parental rights. During a hearing on the involuntary termination of the parents' rights, there was testimony from a physician and a family therapist who had interviewed the couple's children. The testimony basically indicated that the children had stated to the physician and family therapist that they had been sexually abused by their parents and their uncles on multiple occasions. However, the children did not testify at the Family Court hearing. After the hearing, the Family Court terminated the parents' rights to their children. On appeal, the CA held that the testimony from the physician and family therapist regarding hearsay statements from the children (regarding the sexual abuse allegations) was improperly admitted under Crawford v. Washington, 541 U.S. 36 (2004). SC held that Crawford did not apply to the Family Court proceeding because the hearing was civil, not criminal, in nature. It further held that the hearsay statements were properly admitted under KRE 803(4).

Appellant suffered soft tissue injuries in an auto collision and treated for several months; her tort claims were settled. On the date of the accident, appellant was unemployed and had a KFB policy that provided basic reparation benefits (BRB). Initially, she only sought BRB for her medical expenses, however, two months after the accident she accepted a job as a mail sorter, but was told by her doctor that the job was too physically demanding given her injuries. She then made a claim for lost earnings related to the new position, which was denied. Appellant sued, alleging a violation of the Unfair Claims Settlement Practices Act. She received a jury verdict in her favor that KFB was required to pay and that it did not have a reasonable foundation for the delay. She was awarded $5,290 in work loss benefits; plus 18% interest as a penalty for the delay; plus $40,000 in attorney fees.

The Supreme Court held that the Motor Vehicle Reparation Act (MVRA) provides work loss benefits to an injured person for work she probably could have performed if not injured. KFB was entitled to investigate; Appellant provided sufficient proof of loss. The credibility and evaluation of the evidence presented by Appellant was in a proper jury determination. Also, the MVRA provides the exclusive remedy for wrongful delay, i.e., 18% interest. Interest and attorney fees are the remedies provided. The trial court was correct in dismissing the punitive damage claim under the UCSPA.

T & M. JEWELRY, INC. V. HICKS
TORTS - Negligence and Gun Control Act
2003-SC-000665-DG.pdf
PUBLISHED
AFFIRMING
DATE: 4/20/2006

In this appeal, the Supreme Court sought to determine whether the sale of a firearm by Lexington store, The Castle, to an 18 year-old who later accidentally shot and injured the claimant (Hicks) constituted negligence per se and/or common law negligence. TC had granted SJ to The Castle on both claims, and the COA affirmed the grant of SJ on the per se claim, but reversed the TC on the common law claim.

Per Se Claim - The Gun Control Act of 1968 prhobits any licensed dealer from selling firearms to anyone under 21 years of age. While The Castle clearly violated this statute, the SC noted that the statute did not explicitly provide a civil remedy and ultimately held that it also did not implicitly provide a private civil remedy. The SC found no evidence that Congress intended to provide a federal right to damages. Turning to Kentucky's negligence per se statute (KRS 446.070), the SC held that this statute only implicates state statutes rather than federal statutes or local ordinances.

Common Law Claim - While not constituting per se negligence, the SC analyzed whether a violation of the federal statute could satisfy common law negligence. Not surprisingly, the SC focused on the duty element of a negligence claim and whether the type of harm alleged by Hicks was foreseeable. The SC weighed the fact that an 18 year-old can legally possess a firearm under Kentucky law as well as federal law against the fact that a federally licensed dealer is nevertheless prohibited from selling a firearm to an 18 year-old person, and concluded that the federal statute does indeed have a direct bearing on foreseeability. The SC felt that while not controlling, the standard set by the federal statute was nevertheless persuasive. The SC noted that licensed dealers are already bound by this standard so applying it to Kentucky common law negligence actions places no new burden on the dealer.

The SC affirmed the COA's ruling on both claims, and remanded the case to the TC to proceed on the common law negligence claim and whether The Castle's actions breached its duty to Hicks by selling the firearm to her 18 year-old boyfriend.

Roach Dissent - While agreeing with the majority on the per se claim, Justice Roach felt that the focus should be on Kentucky public policy when determining the universal duty of care by which a licensed dealer is bound. He noted that the General Assembly has chosen not to adopt the provisions of the Gun Act that prohibit the sale of firearms to persons under 21, but instead have chosen to expressly adopt a different standard that sets the relevant age at 18. In his view, this is the current public policy in Kentucky and should be analyzed along with state statutes and common law theories to construe the duty of care under Kentucky law with consideration of the federal statute. The reach of the federal statute should be limited to federal criminal penalties against The Castle, which Justice Roach felt did not violate any duty under Kentucky law when it sold the firearm to the 18 year-old. Justice Graves joins.

HUTCHINS V. GENERAL ELECTRIC CO.
WORKERS COMPENSATION - Board is not an indispensable party
2005-SC-000627-WC.pdf
PUBLISHED
REVERSING AND REMANDING
DATE: 4/20/2006

CR 76 .25(4)(a) does not to make the Board an indispensable party to a petition for review, and this case was reversed and remanded for a consideration of the merits.

Requested instruction on fourth degree assault was properly denied by trial court.

COA declined to hold that whenever one or more convictions of multiple jointly-tried offenses are reversed, every other conviction of a jointly-tried offense must also be reversed for re-sentencing.

Alleged error in DVO was not preserved and did not rise to level of palpable error.

The jury should have been instructed on the lesser included offense of criminal trespass as the jury could have believed that Appellant committed burglary when he entered the home. However, based on the modest amount of evidence, and the lack of any evidence connecting Appellant to the stolen firearms, the jury could have also believed that he did not steal the firearms. Without stealing the firearms, he would have only committed the offense of criminal trespass .

There was error when the trial judge refused a request for a continuance to allow the defense time to secure DNA related evidence and testimony;

WILLIAMS V. COM.
CRIMINAL
2004-SC-001133-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 4/20/2006

Trial Court committed harmless error in admitting testimony involving a non-testifying co-defendant's inculpatory statements. Trial Court committed harmless error in admitting non-testifying codefendant's testimonial statement. Trial Court did not err in admitting statement of non-testifying codefendant where the statement showed declarant's state of mind and was not inculpatory.

Trial Court's admission of hearsay statements from Det. Owens' testimony was not preserved for appellate review; no manifest injustice resulted. Trial Court did not err in considering Defendant's prior felony conviction; probation serves as "institutional rehabilitation" for purposes of KRS 532.080.

No palpable error for trial court to fail to sua sponte declare a mistrial after the prosecutor suggested that three of the defense witnesses had colluded to harmonize their testimony.

TC properly refused to consider Taylor a victim of domestic violence and thus properly imposed the requirement that he serve at least 85% of his sentence pursuant to KRS 439.3401. TC properly noted a lack of connection between the domestic violence and the murder.

Note: This case demonstrates the court’s reluctance to deem a man the victim of domestic violence for purposes of KRS 439.3401. Here, the court rejected the designation despite the following evidence: 1.) medical testimony that the Defendant received two stab wounds from the victim on the day of the murder; 2.) testimony of a witness that the victim was violent and aggressive and that she had a tendency to use knives in a threatening manner; 3.) testimony of another witness that on a separate occasion, the victim pulled a knife on Defendant, who was lying on his back; 4.) expert testimony from a psychologist who opined that Taylor was a victim of domestic violence.

TURNER V. COM.
CRIMINAL – KRS 439.3401, Domestic Violence exception
2005-SC-000289-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 4/20/2006

SC rejected various allegations of error in affirming Defendant’s convictions and 25 year sentence for Unlawful Possession of a Methamphetamine Precursor, Complicity to Possession of Anhydrous Ammonia in an Unapproved Container with Intent to Manufacture Methamphetamine, Use/Possession of Drug Paraphernalia, Second or Subsequent Offense, and being a Persistent Felony Offender in the First Degree.

SC affirmed Defendant’s convictions and 20 year sentence for manufacturing methamphetamine, KRS 218A.1432, enhanced by his contemporaneous possession of a firearm, KRS 218A.992.

Defendant was not entitled to directed verdict on firearm possession charge. We have held that this statute applies whether the defendant's possession of the firearm was actual or constructive. Commonwealth v. Montague, 23 S .W.3d 29, 632 (Ky. 2000); Houston v. Commonwealth, 975 S .W.2d 925, 927 (Ky. 1998) . "Constructive possession exists when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control of an object, either directly or through others." Johnson v. Commonwealth, 90 S.W.3d 39, 42 (Ky. 2002) (quotation omitted). "Constructive possession can be established by a showing that the firearm was seized at the defendant's residence ." Id. at 43 (citation and quotation omitted) . However, if the defendant was not in actual possession or immediate control of the firearm, the Commonwealth must show a "nexus" between the crime committed and the possession of the firearm . There was a sufficient nexus between the gun found in the house and the controlled substance offense to submit the enhancement issue to the jury.

Commonwealth established a sufficient chain of custody for the introduction of the lab results. The testimony of Malone, Cooper, and Bowling was sufficient to demonstrate a reasonable probability that the samples were not altered in any material respect prior to testing . Therefore, the trial court did not abuse its discretion in admitting the results of the laboratory tests of the samples found in Appellant's house The evidence presented provided a sufficient basis for the trial court to have found that Detective Cooper had sufficient expertise to describe the process by which methamphetamine is manufactured and that such information would assist the jury in determining a fact in issue, i .e . , whether methamphetamine was being manufactured in Appellant's house . Like the Sixth Circuit in Thomas , we decline to establish a per se rule that a fact witness cannot also render an expert opinion if qualified to do so.

MCINTGIRE V. COM.
EVIDENCE - Expert testimony admissibility under KRE 702
2003-SC-000444-MR.pdf
NOT PUBLISHED
REVERSING AND REMANDING
DATE: 4/20/2006

TC erred in admitting certain portions of expert witness' testimony, as its prejudicial effect was far outweighed by its probative value. Dr. Spevak was qualified to testify as to the mechanics and causation of Jordan's injuries. TC erred, however, in allowing Dr. Spevak to testify that a non-abusing parent would be aware that his or her child was being abused. Dr. Spevak was permitted to respond, in essence, that a non-abusing parent is always aware of violence in the household. As the basis for this opinion, she cited her interviews with "many parents and many children in homes where there is domestic violence ." Presumably by way of analogy, Dr. Spevak was then permitted to explain that parents often do not think their children are aware of violence in the household, but that she could not recall any school-age child who would deny this knowledge. She went on to opine that "people living in that household are aware that there is violence or danger," and that "they know there is violence going on in the household" even if they do not "know of every specific incident." This testimony fails several prongs of the Stringer analysis. After an extensive review of the trial record, we are unable to conclude that the admission of Dr. Spevak's testimony was harmless error.

SKINNER V. HALE CONTRACTING, INC.
WORKERS COMPENSATION
2005-SC-000513-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 4/20/2006

No error for ALJ to consider medical report that the employer submitted pursuant to an order to which the claimant failed to object and affirmed on that ground

NORRIS V. CONWAY & HEATON
WORKERS COMPENSATION
2005-SC-000564-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 4/20/2006

TRI COUNTY OPERATIONS V SURGENER
WORKERS COMPENSATION
2005-SC-000575-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 4/20/2006

On appeal, the employer asserted the finding supporting the enhancement was unreasonable under the evidence and that the decision in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), should be revisited and
overruled. COA disagreed and affirmed as the evidence clearly did not rise to the level of that in Fawbush , and would not have compelled a decision in the claimant's favor had one not been made. Nonetheless, it was sufficient to permit a reasonable inference that he would probably not be able to continue earning the same or greater wage indefinitely.