2005 Court of Appeals Opinions Index

Table of Cases
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Baker v Com, 2003-CA-001402--Not To Be Published; Affirming -- PDF

Richard Baker appeals from the judgment of the Campbell Circuit Court finding him guilty of Trafficking in Marijuana (Over Five Pounds) and sentencing him to nine years’ imprisonment. He claims that the jury instructions deprived him of a unanimous verdict by including two definitions of “traffic” and also that he was entitled to lesser included instructions on possession and facilitation.

Baker v Com, 2004-CA-001438 -- Not To be Published ; Vacating and Remanding -- PDF

Frederick Baker (Baker) brings this appeal from an order of the Jefferson Circuit Court, entered June 17, 2004, assessing two-hundred seventy-eight days' jailtime credit. Kentucky Revised Statutes (KRS) 532.120. He claims entitlement to additional jail-time credit.

Baldridge v Com, 2003-CA-001841 -- Not To Be Published ; Affirming -- PDF

On July 17, 2003, William Shannon Baldridge struck Stephanie Moore, fracturing her right mandible and causing her to suffer a concussion. Baldridge was indicted for, tried for, and convicted of assault in the second degree. He was sentenced to five years’ imprisonment. Baldridge was also ordered to make restitution to the victim in the amount of $8,107.15. He appeals.

Banks v Com, 2003-CA-001872 -- Not Published ; Affirming -- PDF

Melissa Banks appeals the judgment revoking her probation. Although she raised no objection to the revocation proceedings in the circuit court, she now asserts that the revocation hearing did not comport with the minimum standards due process. We affirm the judgment, finding no due process violation.

Barnard v Com, 2005-CA-000374 -- Not Published ; Affirming -- PDF

Ricky L. Barnard (Barnard), pro se, brings this appeal from an opinion and order of the Jefferson Circuit Court, entered June 1, 2004, summarily denying his pro se motion for relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(f),2 motion for appointment of counsel, and motion for an evidentiary hearing. Finding no abuse of discretion by the circuit court, we affirm.

Batchelor v Com., 2004-CA-001706 --Not To Be Published ; Affirming -- PDF

Danny Batchelor appeals from the judgment of the Jefferson Circuit Court finding him guilty of third-degree rape and sentencing him to two years, six months’ imprisonment. He entered a conditional guilty plea after the trial court denied his motion to admit evidence of the victim’s alleged sexual relationship with another man and his motion challenging the trial court’s subject matter jurisdiction. For reasons which will be discussed below, we agree with the trial court’s decision declining to find such evidence admissible under the rape shield rule. Further, Batchelor’s motion challenging the trial court’s subject matter jurisdiction fails because the indictment specifies a range of dates after his eighteenth birthday. Thus, the trial court’s judgment is affirmed.

Bates v Com, 2004-CA-000761 -- Not To Be Published; Affirming -- PDF

Appellant, Jerry Douglas Bates (Bates), appeals from a judgment on a conditional plea of guilty to a charge of theft of identity. Bates’ one year sentence was probated. We affirm Bates’ conviction.

Bates v Com, 2004-CA-000761 -- Not To Be Published; Affirming -- PDF

Appellant, Jerry Douglas Bates (Bates), appeals from a judgment on a conditional plea of guilty to a charge of theft of identity. Bates’ one year sentence was probated. We affirm Bates’ conviction.

Beason v Com, 2004-CA-000220 -- Not To Be Published; Reversing and Remanding -- PDF

Karen Beason appeals from an amended judgment of the Jefferson Circuit Court, entered February 6, 2004, convicting her of second-degree assault 1 and sentencing her to five years’ probation in lieu of five years’ imprisonment. Among numerous allegations of error, Beason contends that her trial was rendered unfair when the trial court erroneously refused to instruct the jury on the defense of extreme emotional disturbance. We agree with Beason that this error entitles her to a new trial. We shall comment briefly on the other alleged errors only to the extent that the issues are apt to recur.

Beavers v Com, 2004-CA-001036 -- Not to be Published ; Affirming -- PDF

Bruce Edward Beavers has appealed from the May 6, 2004, final judgment and sentence of imprisonment of the Fayette Circuit Court which convicted him of one count of receiving stolen property more than $300.001 and one count of being a persistent felony offender in the first degree (PFO I) and sentenced him to ten years’ imprisonment.2 Having concluded that the trial court did not commit reversible error, we affirm.

Bedford v Com, 2003-CA-001962--Not To Be Published; Affirming -- PDF

Kenneth James Bedford appeals from an order of the Owen Circuit Court denying his motion for postconviction relief pursuant to Ky. R. Civ. P. (RCr) 11.42. Bedford alleges that, for various reasons, he received ineffective assistance of counsel in connection with his murder trial in the death of Jeff Smith. For the reasons stated below, we affirm.

Bennett v Com, 2004-CA-001556 -- Not Published ; Affirming -- PDF

Benjamin Bennett appeals from an order of the Jefferson Circuit Court denying his motion for RCr 11.42 relief. Bennett argued that he received ineffective assistance of counsel when counsel advised him to enter an Alford plea on stalking and assault charges. For the reasons stated below, we affirm the order on appeal.

Bennett v Com., 2004-CA-000803 -- Not To Be Published ; Affirming -- PDF

Donnie D. Bennett, pro se, has appealed from the March 3, 2004, order of the Jefferson Circuit Court which denied, without holding an evidentiary hearing, his pro se motion to vacate, set aside, or correct his final judgment and sentence of imprisonment pursuant to RCr2 11.42. Having concluded that the trial court did not err in denying Bennett’s claims that his plea was not knowingly, voluntarily, and intelligently entered without holding an evidentiary hearing, we affirm.

Bennington v Com, 2004-CA-000618 -- Not Published ; Vacating and Remanding -- PDF

Steven Bennington appeals the denial of his motion for RCr 11.42 relief from a judgment revoking his probation and ordering him to commence service of a previously imposed sentence of ten (10) years’ imprisonment. Appellant’s primary contention is that the trial judge improperly enhanced his previously imposed sentences as a condition of a grant of shock probation. Because that contention is conclusively refuted by the record in this case, we are convinced that the trial court properly denied his post-conviction motion without appointing counsel or conducting an evidentiary hearing.

Berry v Com, 2003-CA-000839 -- Not To Be Published; Affirming -- PDF

In April 1998, the Allen County grand jury indicted Eric Berry for trafficking in marijuana and related crimes.1 In April and May 1999, while trial of the Allen County charges was pending, Berry burglarized residences in Barren County and stole and defaced property. He was indicted in Barren County in August 1999 on charges of burglary, theft, and criminal mischief. In July 1999, the Allen Circuit Court convicted Berry and sentenced him to ten years in prison.

Bibbs v Com.,2004-CA-002622 -- Not To Be Published ; Affirming -- PDF

Clarence Bibbs, Jr., appeals from an order of the Christian Circuit Court denying his CR1 60.02 and RCr2 10.26 motions. We find no merit to his arguments and thus affirm.

Bierman v Com, 2004-CA-002496 -- Not Published ; Affirming - -- PDF

The primary focus of this appeal is the denial of appellant’s motion for credit against his revoked sentence for time he spent on probation. In denying appellant’s motion for probationary “street time” credit, the trial judge concluded that the legislative authority upon which appellant relied in claiming the credit applies only to credit for time spent on parole. Finding no error in the decision of the trial judge, we affirm the denial of credit in this case.

Binder v Com., 2004-CA-001440 --Not To Be Published ; Affirming -- PDF

Mark Louis Binder was convicted in 2001 of engaging in a criminal syndicate, trafficking in a controlled substance (two counts), and unlawful transaction with a minor (two counts). Binder is currently serving a thirty-four year sentence for those convictions. The Kentucky Supreme Courtaffirmed on August 22, 2002. Binder sought collateral relief pursuant to RCr 11.42 from his convictions on August 25, 2003, and the Fayette Circuit Court entered its orders denying Binder’s motion on May 11 and June 28, 2004. Binder appeals.

Bishop v Com,2004-CA-001113 --Not Published ; Affirming -- PDF

Appellant, Terry S. Bishop (Bishop), appeals pro se the Jefferson Circuit Court’s denial of his motion pursuant to RCr 11.42, asserting ineffective assistance of counsel. Bishop also contends that the trial court erroneously denied his request for appointment of counsel to represent him and his request for an evidentiary hearing. We affirm the Jefferson Circuit Court.

Black v Com, 2004-CA-000564 -- Not Published ; Affirming -- PDF

Michael Black appeals from a judgment of the Mason Circuit Court finding him guilty of possession of a controlled substance in the first degree, possession of marijuana, driving under the influence, and tampering with physical evidence. He was originally indicted on charges of first-degree trafficking, possession of marijuana, and DUI. Then the grand jury issued a superceding indictment which added the tampering charge. On appeal, he claims that the trial court erroneously denied his motion to quash the new indictment and failed to allow him to withdraw his guilty plea when the sentence was going to be different than the recommendation contained in the plea bargain. Finding no merit to these contentions, we affirm the trial court.

Blackburn v Com, 2004-CA-001775 -- Not Published ; Affirming - -- PDF

Gene E. Blackburn appeals from an order of the Floyd Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. Finding no error, we affirm.

Boateng v Com, 2004-CA-001181 -- Not Published ; Affirming -- PDF

JUDGE: Deloris Boateng has appealed from the Fayette Circuit Court’s June 4, 2004, Summary Judgment dismissing her claims against the Fayette County Board of Education (hereinafter “the Board”). Boateng alleged that the Board had violated KRS 61.102 (the Kentucky Whistleblower Act), KRS Chapter 344 (the Kentucky Civil Rights Act), as well as § 2 of the Kentucky Constitution, due to retaliatory actions taken after she made complaints regarding the assignment of children to classrooms. We affirm.

Boger v Com, 2004-CA-000659-mr -- Not Published ; Affirming- -- PDF

A Boyd Circuit Court jury convicted appellant, Mark Boger, of robbery in the second degree. On appeal, Boger asserts that the trial court erred by failing to suppress a witness identification of him which he alleges resulted from a flawed show-up identification procedure, and by failing to enter a directed verdict. For the reasons stated hereafter, we affirm.

Boston v Com., 2004-CA-000669 -- Not Published ; Affirming in Part and Remanding in Part -- PDF

On April 18, 2001, Appellant, John Boston (Boston), was indicted in Jefferson County, Kentucky, on two counts of robbery in the first degree, one count of burglary in the first degree, one count of fleeing or evading the police in the first degree, and one count of cruelty to animals in the second degree in case number 01-CR-939. Also named in this indictment was Carl Roderick Bruce (Bruce).

Bowling v Com, 2004-CA-000487 -- Not To Be Published; Affirming -- PDF

On November 8, 2001, Bowling was indicted by a Campbell County grand jury for First Degree Promoting Contraband by smuggling marijuana into a detention center on August 30, 2001. At the time Bowling allegedly committed this offense, he was awaiting trial in Campbell County on indictments of Criminal Possession of a Forged Instrument in the Second Degree and felony Theft by Unlawful Taking.

Bowling v Com, 2003-CA-002339 --Not To Be Published ; Affirming -- PDF

On February 25, 1989, Appellant, Ronnie Lee Bowling, entered the Quality Sunoco owned by Ricky Smith in Rockcastle County and began asking Mr. Smith about possible employment. Mr. Smith explained to Appellant that only one person ran the store each shift and currently no openings were available. Mr. Smith asked the Appellant to inquire again in the spring. The dispute in this case arises as to what occurred after the above described exchange.

Bradford v. Com, 2004-CA-000505 -- Not To Be Published; Affirming -- PDF

In January 2003, a Jefferson County jury found Byron Bradford guilty of several counts of rape and related offenses. Bradford thereupon offered to waive his right to a direct appeal, and in exchange for the waiver the Commonwealth recommended that he be sentenced to a total of twenty years in prison. By order entered January 16, 2003, the trial court accepted the agreement and sentenced Bradford accordingly. In January 2004, Bradford moved for collateral relief from that 2 order.

Braxton v Com., 2004-CA-001421 -- Not Published ; Affirming -- PDF

Jamie L. Braxton brings this appeal from a June 24, 2004, order of the McCracken Circuit Court denying his pro se motion to vacate the judgment. We affirm.

Brent v Com, 2004-CA-000768 -- Not To Be Published; Affirming -- PDF

Gregory Brent appeals from a March 8, 2004, order of the Fayette Circuit Court that “overruled” appellant’s motion to suppress contraband seized prior to his arrest. The issue raised by appellant’s motion to suppress was previously remanded to the circuit court from another panel of this Court on direct appeal. We affirm.

Brewer v Com, 2003-CA-002613 -- Published ; Affirming -- PDF

Mark Brewer appeals from the judgment of the Powell Circuit Court finding him guilty of trafficking in a controlled substance. Brewer argues on appeal that the prosecutor's commentary upon matters not in evidence and his use of a personal anecdote in closing arguments made the trial fundamentally unfair. We disagree, and affirm.

Briggs v Com, 2004-CA-000923 -- Not To Be Published; Affirming -- PDF

Michael Briggs appeals from an order of the Jefferson Circuit Court denying his pro se motion for CR 60.02 relief. He contends that his 10 year sentence for DUI, traffic offenses, and persistent felony offender status was improperly increased to 14 years when the sentence was probated. For the reasons stated herein, we affirm the order on appeal.

Briscoe v Com, 2003-CA-002268 -- Not To Be Published; Affirming -- PDF

Winston Briscoe appeals the Circuit Court’s summary denial of his RCr 11.42 motion.2 We find that Briscoe’s claim that he received ineffective assistance of counsel is refuted by the record and affirm.

Brooks v Com, 2002-CA-001132--Not To Be Published; Reversing and Remanding -- PDF

John C. Brooks appeals his convictions of first-degree sexual abuse1 and second-degree sexual abuse.2 Because the trial court erred in admitting prior uncharged sexual acts, we reverse the judgment and remand for a new trial.

Brown, 2003-CA-002616 -- Not To Be Published; Affirming -- PDF

Appellant, Lu Sean Brown (Brown), appeals the order of the Jefferson Circuit Court denying him RCr 11.42 relief without granting an evidentiary hearing. The court’s ruling is affirmed.

Brown v Com, 2003-CA-002628--Not To Be Published; Affirming -- PDF

Appellant Wilmer Brown, who entered a guilty plea to first-degree assault, contends in this pro se appeal that the trial court erred by failing to grant him RCr 11.42 relief based on his claim of ineffective assistance of counsel. He also asserts that the Kentucky Department of Corrections violated his rights by compelling him to serve 85% of his sentence before considering him eligible for parole. We affirm.

Brown v Com, 2004-CA-000037--Not To Be Published; Affirming -- PDF

Willie I. Brown appeals his conviction of trafficking in marijuana, first-degree trafficking in cocaine while in possession of a handgun, and possession of drug paraphernalia, pursuant to a conditional guilty plea reserving the right to appeal the trial court’s denial of his motion to suppress. We agree with the trial court that the police officer’s asking Brown a few questions, after telling him he was -2- free to go after a traffic stop, did not constitute an illegal detention. Hence, we affirm.

Brown v Com, 2004-CA-000037--Not To Be Published; Affirming -- PDF

Willie I. Brown appeals his conviction of trafficking in marijuana, first-degree trafficking in cocaine while in possession of a handgun, and possession of drug paraphernalia, pursuant to a conditional guilty plea reserving the right to appeal the trial court’s denial of his motion to suppress. We agree with the trial court that the police officer’s asking Brown a few questions, after telling him he was -2- free to go after a traffic stop, did not constitute an illegal detention. Hence, we affirm.

Brown v Com, 2004-CA-000320--Not To Be Published; Affirming -- PDF

Carl Brown appeals from a judgment of the Muhlenberg Circuit Court reflecting Brown’s conditional plea of guilty to six counts of drug trafficking, possession of drug paraphernalia and firearms offenses. Under the terms of the guilty plea, Brown reserved the right to appeal the circuit court’s denial of his motion to suppress evidence obtained during a search of his residence. Brown contends that though he consented to the search, the consent was coerced and therefore involuntary. For the reasons stated below, we are not persuaded by Brown’s argument and therefore affirm the order and judgment from which he appeals.

Brown v Com, 2004-CA-000037--Not To Be Published; Affirming -- PDF

Willie I. Brown appeals his conviction of trafficking in marijuana, first-degree trafficking in cocaine while in possession of a handgun, and possession of drug paraphernalia, pursuant to a conditional guilty plea reserving the right to appeal the trial court’s denial of his motion to suppress. We agree with the trial court that the police officer’s asking Brown a few questions, after telling him he was -2- free to go after a traffic stop, did not constitute an illegal detention. Hence, we affirm.

Brown, 2003-CA-002616 -- Not To Be Published; Affirming -- PDF

Appellant, Lu Sean Brown (Brown), appeals the order of the Jefferson Circuit Court denying him RCr 11.42 relief without granting an evidentiary hearing. The court’s ruling is affirmed.

Brown v Com, 2003-CA-001093 -- To Be Published;Reversing -- PDF

On March 25, 1999, after a jury trial in Laurel Circuit Court, both Harold Sanford Brown and his codefendant, Leslie Lee Lawson, were convicted of second-degree arson and second-degree burglary. Because Brown was also found guilty of being a persistent felony offender, the trial court sentenced him to a total of eighty years’ imprisonment. Brown and Lawson appealed to the Supreme Court of Kentucky, but that Court affirmed their convictions.2

Brown v Com, 2004-CA-002180 -- Not Published ; Affirming - -- PDF

Stephen Keith Brown was arrested following a stop of his vehicle and subsequent search, which turned up various items of contraband, including cocaine. He was found guilty by the court of possession of cocaine and the status offense of being a first-degree persistent felony offender, following a bench trial, and sentenced to an enhanced sentence of ten years’ confinement. He now appeals, claiming that the stop of his vehicle was in violation of his constitutional right to be free from unreasonable searches and seizures.

Brown v Com, 2004-CA-001332 -- Not Published ; Reversing and Remanding - -- PDF

Marlo Brown, who was convicted in circuit court of first-degree robbery and sentenced to a maximum of ten years enhanced to twenty-five years as a first-degree persistent felony offender (PFO), appeals from an order denying his motion for relief under RCr2 11.42. This appeal asks us to determine whether Brown’s counsel provided ineffective assistance at trial by announcing that the defense was ready to proceed, despite the fact that Brown’s “star witness” had not been personally served with a subpoena to testify at trial. We hold that counsel was ineffective, and we reverse and remand for further proceedings consistent with this opinion.

Brown/Madden v Com, 2003-CA-000397 -- Not Published ; Affirming -- PDF

On July 24, 2000, the cashier of the Family Dollar Store on Breckenridge Lane in Louisville, Kentucky, was robbed at gunpoint. Approximately $750 was taken from the safe. The cashier was able to obtain the license plate number from the getaway car. Mark Brown/Madden was pulled over later that evening. He and his companion were positively identified, and $697 was recovered from the vehicle and on their persons. Brown/Madden confessed to being the perpetrator.

Brumley V Com., 2004-CA-000843 -- Not Published ; Affriming in Part Reversing in Part and Remanding - -- PDF

Angelina Brumley appeals from a judgment and jury verdict of the Pulaski Circuit Court finding her guilty of complicity to first-degree sexual abuse and sentencing her to five years’ imprisonment. Upon review, we affirm in part, reverse in part and remand.

Burdue V Com , 2003-CA-002526 -- Not To Be Published;Affirming In Part, Reversing In Part and Remanding -- PDF

James E. Burdue has appealed from the final judgment of the McCreary Circuit Court entered on November 19, 2003, which pursuant to a jury verdict convicted him of manslaughter in the first degree1 and sentenced him to prison for 14 years. Having concluded (1) that the indictment was not defective; (2) that the trial court did not abuse its discretion by denying Burdue a continuance on the day of trial; but that the jury instructions were erroneous to the substantial prejudice of Burdue as they did not contain the whole law of the case, we affirm in part, reverse in part, and remand for a new trial. (3)

Burnice v Com, 2004-CA-001732 -- Not to be Published ; Affirming -- PDF

Albert Burnice appeals from a judgment of the Jefferson Circuit Court, entered June 14, 2004, convicting him of theft by unlawful taking, over $300.00,1 and giving a peace officer a false name or address.2 He was sentenced as a first- degree persistent felon3 to twelve years in prison. Burnice contends that the trial court erred by refusing to suppress evidence derived from his unlawful arrest, by admitting incompetent evidence as to the value of the stolen property, by refusing to direct a verdict to the effect that the stolen property was worth less than $300.00, by refusing to declare a mistrial, and by incorrectly resolving the jury’s inconsistent verdict. Having determined that Burnice is not entitled to relief on any of these grounds, we affirm the trial court’s judgment.

Burns v Com., 2004-CA-001857 --Not To Be Published ; Affirming -- PDF

William Todd Burns appeals from orders of the Muhlenberg Circuit Court denying his motions pursuant to CR1 60.02, CR 59.05, and CR 52.02. Burns is a prison inmate, and he is seeking relief from criminal convictions and a life sentence. We conclude that the circuit court properly denied Burns’s motions, and we thus affirm.

Burton v Com, 2003-CA-001076--Not To Be Published; Affirming In Part Vacating In Part And Remanding -- PDF

Tammy Burton entered a guilty plea in Fulton Circuit Court to one count of theft by deception under $300.00.1 She appeals from the trial court’s judgment sentencing her to twelve months’ imprisonment, probated for two years, and ordering her to pay $15,217.51 in restitution. She asserts that the trial court erred by denying her a meaningful opportunity to challenge the victim’s allegations of financial damages and then refusing to let her withdraw her guilty plea. She further claims that she was entitled to have a jury set her restitution. Finally, she asserts that the trial court lacked the authority to order restitution greater than or equal to $300.00.

Byars v Com, 2003-CA-001655 --Not To Be Published;Affirming And Denying to Dismiss -- PDF

Diyun D. Byars appeals, pro se, from the Jefferson Circuit Court’s opinions and orders denying his RCr 11.42 motion and his CR 59.05 motion. This Court has consolidated the appeals. Having thoroughly reviewed the record, applicable rules, statutes and case law, we affirm.

Byrd v Com, 2004-CA-000143 -- Not Published ; Affirming -- PDF

Logan Calvin Byrd appeals from an order of the Boyle Circuit Court denying his request for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil Procedure (CR) 60.02. He alleges that his trial counsel was ineffective, largely in matters of pre-trial investigation and trial strategies such as calling witnesses favorable to the defense, cross-examining prosecution witnesses and presenting an articulable theory of defense.
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