2006 Unpublished Court of Appeals Opinions Index

Table of Cases
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B.J. a child under eighteen v Com., 2006-CA-000330 -- Published ; Vacating and Remanding -- PDF

B.J., a child under 18, has appealed from a juvenile status disposition order of the Jefferson Family Court entered on January 11, 2006, adjudging him as a habitual truant status offender and placing him on probation under the authority of the Department for Community Based Services (the Cabinet). Having concluded that the family court erred by adjudicating B.J. as a habitual truant in absentia, we vacate and remand.

B.W. V Com.,2005-CA-000395 --Not Published ; Reversing in Part, Vacating in Part and Remanding -- PDF

In January 2003, B.W. and two other juveniles went on a robbery spree. During a brief period they forced their way into two Lexington residences and stole items from several people they held at gunpoint. All three juveniles were transferred to Fayette Circuit Court pursuant to KRS 635.020 to be proceeded against as youthful offenders, and all eventually pled guilty to various counts of first and second-degree robbery. The two juveniles who were not yet eighteen when they were sentenced were remanded to the custody of the juvenile authorities until their eighteenth birthdays, at which point, pursuant to KRS 640.030, they were returned to the circuit court for final sentencing. Both were granted probation. B.W., on the other hand, turned eighteen in April 2003, shortly before his indictment. At that point, apparently, he was remanded to the adult detention facility and was thereafter proceeded against as an adult rather than a youthful offender. In particular, when the court sentenced B.W. in July 2003, it did not order the Department of Juvenile Justice (DJJ) to conduct his pre-sentence investigation, and it did not consider the option then available under KRS 640.030 of committing B.W. to DJJ for six months of rehabilitative treatment and postponing his final sentence until the completion of that treatment. Instead, the Department of Corrections prepared B.W.’s presentence investigation report (PSI), and the court, after sentencing him as an adult to twenty-five years’ imprisonment, remanded B.W. to the adult authorities.

Back v Com.,2005-CA-000554 -- Not Published, Affirming -- PDF

Thomas Back appeals from the February 3, 2005 order of the Campbell Circuit Court denying his petition for RCr1 11.42 relief from his plea of guilty to one count of manslaughter. Back contends that his attorney rendered ineffective assistance by (1) failing to investigate the possibility of a causation defense; (2) failing to explain the charges, including lesser-included offenses; and (3) failing to move for a second competency determination prior to sentencing. Upon review, we affirm the trial court’s denial of relief because we find that Back’s guilty-plea attorney did not render ineffective assistance of counsel.

Bailey v Com ,2005-CA-000237 -Not Published ;Affirming -- PDF

Rose Bailey appeals from a final judgment of the Jefferson Circuit Court following a jury verdict of guilty on one count each of assault in the second degree, assault in the third degree, resisting arrest and disorderly conduct. Bailey claims that the trial court erred in failing to strike a juror for cause, failing to instruct the jury on voluntary intoxication, and failing to instruct the jury in a manner consistent with the presumption of innocence and burden of proof. For the reasons stated below, we affirm the judgment on appeal.

Bailey v Com., 2004-CA-002653 --Not Published ; Affirming -- PDF

Scott Bailey appeals from a jury verdict and judgment of the Pike Circuit Court convicting him of seconddegree burglary and theft by unlawful taking. Upon review, we affirm.

Baker v Com.,2005-CA-000164 --Not Published, Affirming -- PDF

Darryl Keith Baker brings this appeal from a December 28, 2004, judgment of the Fayette Circuit Court upon a jury verdict finding him guilty of theft by unlawful taking over $300.00 and with being a persistent felony offender in the second degree. We affirm.

Baker-Shofner V Com.,2004-CA-001674 -- Not Published ; Affirming -- PDF

Lisa Baker-Shofner appeals from the judgment of the Hardin Circuit Court that she is guilty of driving under the influence, fourth offense, and sentencing her to five years to serve. Baker-Shofner argues, on direct appeal, that she received ineffective assistance from her counsel at trial. The Commonwealth points out that, since she has never filed a motion for post-conviction relief, the trial court has not had an -2- opportunity to evaluate the issue of ineffective assistance. We agree and affirm the trial court.

Barger v Com., 2004-CA-002604 -- Published ; Affirming -- PDF

DeJuan Barger has appealed from the judgment of conviction and sentence of the Jefferson Circuit Court entered on November 30, 2004, following his conditional guilty plea to operating a motor vehicle under the influence of intoxicants2 and operating a motor vehicle on a suspended or revoked operator’s license.3 Having concluded that the trial court’s factual findings are not clearly erroneous and that it correctly applied the law to those facts in denying Barger’s motion to suppress evidence, we affirm.

Barker v Com., 2004-CA-000598 -- Not Published ;Affirming -- PDF

Denise Barker (Barker) brings this appeal from a judgment of the Greenup Circuit Court entered March 4, 2004, upon a jury verdict. She was adjudged guilty of firstdegree robbery2 and sentenced to ten years imprisonment. We affirm.

Barksdale V Com.,2005-CA-000077 -- Not Published ; Affirming -- PDF

By final judgment entered June 24, 2003, the Fayette Circuit Court convicted Jane Barksdale, pursuant to her guilty plea, of felony theft by unlawful taking,1 misdemeanor receiving stolen property,2 and possession of burglar’s tools. Barksdale was sentenced as a second-degree persistent felon to seven years in prison.

Barrickman v Com, 2004-CA-000890--Not To Be Published; Affirming -- PDF

Amiee J. Barrickman appeals from orders of the Clinton Circuit Court voiding her participation in the court’s pretrial diversion drug court program for violating the terms and conditions of that program and sentencing her to five years imprisonment for possession of methamphetamines. Upon review, we affirm.

Beard v Com.,2004-CA-002192 --Not Published, Affirming -- PDF

On the evening of September 8, 1992, in Louisville, Kentucky, Glen Lee Beard shot and killed his estranged wife. He then went to her home, found his two daughters and shot them both in the head, leaving them for dead. After the shootings, Beard was quickly arrested. Within twenty-four hours of the shootings, a psychologist interviewed Beard in jail for approximately an hour and a half. In a report, the psychologist indicated that Beard understood the proceedings against him. On September 14, 1992, Beard was charged in an indictment with one count of murder, two counts of assault in the first degree, one count of attempted murder and one count of burglary in the first degree. On September 15, 1992, Beard pled guilty to all charges in Jefferson Circuit Court and was sentenced to a total of 150 years in prison.

Beckerman v Com.,2005-CA-001303 --Not Published, Affirming -- PDF

William Beckerman (Beckerman) brings this appeal of an order of the McCracken Circuit Court, entered May 25, 2005, summarily denying his motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.

Beckham v Com.,2004-CA-002328 -- Published, Affirming -- PDF

Jeffrey Beckham appeals from a judgment of the Henderson Circuit Court, entered November 8, 2004, convicting him of manufacturing methamphetamine in violation of KRS 218A.1432 (1998). In accord with the jury’s recommendation, the court sentenced Beckham to ten years’ imprisonment. maintains that he was denied his rights to present a defense and to compel witnesses in his favor when the trial court erroneously granted Fifth-Amendment immunity to a codefendant Beckham desired to call as a witness. He further maintains that the court erred by excluding evidence concerning the codefendant’s guilty plea. Because we agree with the trial court that the codefendant validly asserted her Fifth-Amendment privilege and because the other alleged error was not properly preserved for our review, we affirm.

Belcher v Com.,2005-CA-001055 --Not Published, Affirming -- PDF

Appellant Kenneth Belcher appeals the denial of his RCr 11.42 motion for relief from a judgment convicting him of wanton murder for which he was sentenced to twenty years’ imprisonment. In denying appellant’s motion, the trial judge concluded that the claims supporting his allegation of ineffective assistance of counsel were either conclusively refuted by the record or related to matters which were irrelevant to the charges against him. Finding no error in the trial judge’s denial of appellant’s motion without a hearing, we affirm.

Bell v Com.,2004-CA-001230 -- Not Published ; Affirming -- PDF

Timothy David Bell appeals from a judgment of conviction from the Daviess Circuit Court in which he was convicted of three counts of sexual abuse in the first degree. Finding no error, we affirm.

Bennett v Com., 2005-CA-002369 -- Published ; Affirming -- PDF

Joe Frances Bennett and Marcella Marie Patterson appeal from conditional guilty pleas following a mistrial in their joint trial on drug trafficking charges. They both argue, for different reasons, that the trial court erred in denying their motions to dismiss on double jeopardy grounds. However, their motions for a mistrial preclude them from objecting to a retrial on double jeopardy grounds, and there is no showing that the mistrial was caused by an intentional action of the prosecutor. We further conclude that the trial court acted within its discretion in finding that a manifest necessity existed for a mistrial in both cases. Hence, we affirm.

Berke v Com.,2005-CA-002325 -- Not Published ; Affirming -- PDF

This is an appeal from the denial of a motion pursuant to RCr 11.42 alleging ineffective assistance of counsel. We affirm.

Birch V Com.,2005-CA-001564 -- Published ; Affirming -- PDF

Incident to an arrest on an outstanding warrant, the police searched Franklin Birch and found crack cocaine in his hand. In this appeal, Birch contends that the illegal nature of his seizure requires suppression of the evidence of the crack cocaine. But we hold that regardless of the potential illegality of the police officer’s initial contact with Birch, the outstanding arrest warrant was an independent, untainted ground for the arrest. Therefore, the cocaine discovered in the search incident to that arrest was obtained lawfully.

Bishop and Sester v. Com 2004-CA-002432--Not To Be Published; Affirming -- PDF

On March 15, 2004, two Manchester policemen and a Kentucky state trooper went to the home of appellee Johnny C. Bishop to effect an arrest. When the officers arrived at Bishop’s residence, they were given permission by Bishop’s roommate to search the premises; they discovered a methamphetamine laboratory and drug paraphernalia. Bishop was arrested by the city policemen as was co-appellee Christopher Sester, who was on the scene and found in possession of methamphetamine and other drugs.

Bishop v Com, 2004-CA-002282 --Not Published ; Affirming -- PDF

Appellant, Vertis Ray Bishop (Bishop), appeals his conviction for manslaughter in the second degree. We affirm the trial court’s judgment.

Blackburn v Com ,2005-CA-000799 - Not Published ;Affirming -- PDF

Joel Blackburn appeals from the Jessamine Circuit Court’s order denying his motion seeking RCr 11.42 relief. For the following reasons, we affirm.

Black v Com, 2003-CA-000654 -- Published ; Reversing and Remanding -- PDF

This matter is before us on remand by the Kentucky Supreme Court by Opinion and Order dated April 12, 2006. The Supreme Court vacated our opinion rendered May 14, 2004, and ordered us to reconsider in light of Commonwealth v. Kelly, 180 S.W.3d 474 (Ky. 2005) and Commonwealth v. Priddy, 184 S.W.3d 501 (Ky. 2005). Having reviewed Kelly and Priddy, we believe the facts in the instant appeal are distinguishable from the facts in those cases. Unlike Kelly and Priddy, the tip at issue in this appeal was not from an “identifiable informant” or a “citizen informant” but, rather, from a truly anonymous informant. Thus, upon reconsideration, we reinstate our previous opinion reversing and remanding.

Blackford v Com., 2005-CA-000603 --Not To Be Published ; Affirming -- PDF

Antonio Demetrius Blackford appeals from a judgment of the Fayette Circuit Court sentencing him to twelvemonths’ imprisonment -- probated for two years. Blackford entered a conditional plea of guilty to the charges of trafficking in a controlled substance within one thousand yards of a school, second-degree fleeing or evading police, carrying a concealed deadly weapon, and possessing drug paraphernalia. On appeal, Blackford challenges the legality of the search of the automobile that he had been driving prior to his arrest. We affirm.

Blair v Com., 2005-CA-000229 --Not Published ; Affirming -- PDF

In 2001, shortly after a physician confirmed that David Blair’s twelve year old stepdaughter was three months’ pregnant, Blair was indicted for her rape (eleven counts) and the sexual abuse of her eight year old sister. Following a jury trial in 2002, Blair was convicted on all counts as well as the status offense of persistent felony offender. Blair’s sentence was affixed at 70 years’ imprisonment. The convictions were affirmed by the Kentucky Supreme Court on February 17, 2005 (No. 2002-SC-0834-MR).

Blythe v Com., 2004-CA-001087 -- Not To Be Published ; Affirming -- PDF

Jan Devont Blythe, pro se, has appealed from an order of the Fayette Circuit Court entered on May 4, 2004, which dismissed his motion to vacate his sentence pursuant to RCr1 11.42. Having concluded that Blythe did not substantially comply with the requirements of RCr 11.42 in filing his motion, we affirm.

Botto v Com., 2005-CA-002081 -- Published ; Affirming -- PDF

Tracy Pauline Botto appeals from a judgment following her conditional plea of guilty to first degree possession of a controlled substance and possession of drug paraphernalia. She entered her plea on September 13, 2005, in Hardin Circuit Court and reserved for appeal the opinion and order of the court denying her motion to suppress drug evidence recovered by police in a warrantless search. The two issues on appeal are: (1) whether Botto was “seized” in the context of the Fourth Amendment when she allegedly gave her consent to the search and (2) whether her consent was voluntary.

Bottom v Com.,2004-CA-002480 --Not Published ; Affirming -- PDF

Brian Bottom and his ex-wife, Melissa Jean Bottom, appeal from conditional guilty pleas that each entered to various drug-related felony charges. Both Brian and Melissa argue that the police lacked reasonable and articulable suspicion when they initially approached Brian’s home and knocked upon his door seeking to talk to him and Melissa. Finding that reasonable and articulable suspicion was not necessary, we affirm.

Bowden v Com.,2005-CA-002424 --Not Published ; Affirming -- PDF

Joseph C. Bowden appeals pro se to this Court from the Fayette Circuit Court’s denial of his RCr2 11.42 motion for post-conviction relief. Bowden asserts in this appeal that he suffered ineffective assistance of counsel at trial, and he claims the trial court erred by failing to hold an evidentiary hearing on his RCr 11.42 motion.

Bowersmith V Com.,2005-CA-000405 -- Not Published ; Affirming -- PDF

Glen Lee Bowersmith appeals his conviction in the Hardin Circuit Court for possession of a controlled substance in the first degree, for which he received a sentence of five years in prison. On appeal, he challenges the trial court’s denial of his pretrial motion to suppress evidence. In addition, he argues that the Commonwealth introduced incorrect and prejudicial evidence that he was on probation at the time of the present offense. We affirm.

Brandenburg v Com.,2005-CA-001535 --Not Published ; Affirming -- PDF

James Brandenburg appeals his conviction and sentence following a jury trial on the charge of first-degree robbery. He was sentenced to ten year in prison. We affirm.

Brantley V Com.,2005-CA-000471 -- Not Published ; Affirming -- PDF

Following his plea of guilty to two counts of trafficking in a controlled substance and one count of being a persistent felony offender in the first degree, Michael Brantley (hereinafter appellant) brought a motion in the court below pursuant to CR 60.02, seeking “clarification of sentence and specific performance” of his plea agreement. Appellant argued that the Department of Corrections was not administering his sentence in accordance with the plea agreement, or with applicable statutory and case law. We affirm.

Bratcher Sr. v Com., 2004-CA-002154 -- Published ; Affirming -- PDF

Robert Earl Bratcher, Sr. has appealed from a judgment of the Butler Circuit Court entered on October 4, 2004, following a jury verdict finding Bratcher guilty of five counts of rape in the first degree by forcible compulsion,1 ten counts of sodomy in the first degree by forcible compulsion,2 and four counts of sexual abuse in the first degree by forcible compulsion.3 Having concluded that the evidence supports the convictions, that the jury was properly instructed, and that the trial court properly allowed certain evidence, we affirm.

Bray v Com.,2005-CA-001037 -- Published, Affirming -- PDF

Roger Dale Bray appeals from the Jefferson Circuit Court’s order classifying him as a high-risk sex offender. For the following reasons, we affirm.

Bright v Com., 2005-CA-000232 -- Not Published ;Affirming -- PDF

Shane Bright (Bright), pro se, brings this appeal of an order of the Jefferson Circuit Court, entered July 26, 2004, summarily denying his pro se motion to vacate his three-year sentence arising out of an unconditional guilty plea to first-degree wanton endangerment, first-degree stalking, first-degree criminal mischief, third-degree terroristic threatening, and fourth-degree assault,2 pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.

Brooks Jr. v Com.,2005-CA-001498 -- Not Published, Affirming -- PDF

Gary Lee Brooks, Jr. appeals pro se from an order entered by the Henderson Circuit Court denying his motion seeking RCr 11.42 relief. He contends that the trial court erred by failing to find that he was afforded ineffective assistance of counsel at trial and by failing to conduct an evidentiary hearing. We affirm.

Brown v Com.,2005-CA-000438 --Not Published,Reversing -- PDF

Vertrees Brown appeals an order forfeiting several firearms and ammunition seized by sheriff’s deputies in a search of his residence. The search occurred several months after Vertrees committed drug trafficking offenses. Because the Commonwealth failed to show the nexus between the seized property and Vertrees’s drug trafficking offenses, we reverse.

Brown v Com.,2005-CA-001114 --Not Published,Affirming -- PDF

John Brown appeals from an order of the Pike Circuit Court revoking his probation and sentencing him to five-years’ imprisonment. Brown argues that the trial court abused its discretion in finding that he used or was under the influence either of a controlled substance or of alcohol while on probation. Brown contends that he possessed valid prescriptions for all of the controlled substances which he had ingested and that the Commonwealth failed to prove that he had taken more than a therapeutic amount of medication. We disagree and affirm the trial court.

Brown v Com., 2005-CA-000775 --Not Published ; Affirming -- PDF

Appellant, Matthew John Brown, appeals the judgment entered in his Fleming Circuit Court conviction for burglary, third degree, theft of property over $300, and persistent felony offender, second degree. Brown requests a new sentencing hearing. We affirm the ruling of the Fleming Circuit Court.

Bruce v Com, 2004-CA-002183 --Not Published ; Affirming -- PDF

Dwayne Bruce appeals from an order of the Jefferson Circuit Court denying his motion to vacate his convictions and sentences pursuant to CR2 60.02. We affirm.

Bruce v Com, 2005-CA-001053 --Not Published ; Affirming In Part, Vacating In Part and Remanding -- PDF

Dwayne Anthony Bruce appeals from an order of the Jefferson Circuit Court denying his motion to vacate his convictions and sentences pursuant to RCr2 11.42. Bruce claims he received ineffective assistance of counsel. We affirm in part, vacate in part, and remand.

Bruce V Com.,2004-CA-002183 --Not Published ; Affirming -- PDF

Dwayne Bruce appeals from an order of the Jefferson Circuit Court denying his motion to vacate his convictions and sentences pursuant to CR2 60.02. We affirm.

Bruce v Com, 2004-CA-002183 -- Not Published ; Affirming -- PDF

Dwayne Bruce appeals from an order of the Jefferson Circuit Court denying his motion to vacate his convictions and sentences pursuant to CR2 60.02. We affirm.

Bunch v Com., 2005-CA-002009 -- Not Published ; Affirming -- PDF

James Bunch brings this appeal from a September 13, 2005, order of the Jefferson Circuit Court denying his Ky. R. Civ. P. (CR) 60.02 motion to partially vacate his judgment of conviction. We affirm.

Burdell v Com, 2003-CA-001947 --Not Published ; Affirming -- PDF

Darius Burdell brings this pro se appeal from an August 15, 2003, order of the Fayette Circuit Court denying his motion pursuant to Ky. R. Crim. P. (RCr) 11.42 to vacate his sentence. We affirm.

Burgess V Com.,2005-CA-000708 -- Not Published ; Affirming -- PDF

Dexter W. Burgess (Burgess) brings this appeal from an order of the Fayette Circuit Court, entered March 18, 2005, summarily overruling his motion to vacate or correct sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.

Burkhead v Com., 2005-CA-000086 -- Not Published ;Affirming -- PDF

Thomas Burkhead brings this pro se appeal from a December 16, 2004, order of the Jefferson Circuit Court denying his Ky. R. Crim. P. (RCr) 11.42 motion without an evidentiary hearing. We affirm.

Bush v Com., 2005-CA-001866 --Not Published ; Vacating and Remanding -- PDF

Marcellus Bush has appealed from a judgment entered on August 24, 2005, by the Christian Circuit Court which, following the denial of his motion to suppress evidence and pursuant to his conditional guilty plea, convicted him of possession of a controlled substance in the first degree, cocaine,1 and for being a persistent felony offender in the first degree (PFO I).2 Having concluded that the trial court failed to make sufficient factual findings and conclusions of law in its denial of Bush’s motion to suppress evidence, we vacate and remand.

Butler V Com.,2004-CA-002657 -- Not Published ; Affirming -- PDF

Tony Fostino Butler appeals from the Henderson Circuit Court’s judgment sentencing him to ten years’ imprisonment after a jury found him guilty of second-degree robbery1 and of being a first-degree persistent felony offender2 (PFO). Butler argues on appeal that the trial court erred in failing to instruct the jury as to fourth-degree assault3 and theft by extortion4. For the following reasons, we affirm.

Buttery v Com., 2005-CA-002219 -- Not Published ; Affirming -- PDF

Michael Keith Buttrey brings this appeal from a September 30, 2005, judgment of the Laurel Circuit Court upon a conditional plea of guilty to first-degree bail jumping. We affirm.

Burkhart V Com.,2004-CA-002433 -- Not Published ; Affirming -- PDF

These consolidated appeals concern James Burkhart’s collateral attacks (pursuant to RCr 11.42 and CR 60.02, respectively) from his judgment of conviction in the Laurel Circuit Court on indictment No. 2001-CR-0303. We affirm.
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