2006 Unpublished Court of Appeals Opinions Index

Table of Cases
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S.K.; M.M.F.; and B.D.T. v Com.,2004-CA-002595 -- Published, Reversing and Remanding -- PDF

In separate proceedings before the juvenile division of the Daviess District Court, S.K., B.D.T., and M.M.F. (movants) were each determined to have committed a public offense that caused substantial damage: property damage or medical expenses in excess of a thousand dollars. In each case the movant was ordered to make restitution to the victim, and in each case when the movant turned eighteen a portion, at least, of the restitution remained outstanding. The Commonwealth subsequently moved the juvenile court to hold the movants in contempt. The cases were consolidated, and by order entered March 8, 2004, the Daviess District Court ruled that its subject matter jurisdiction in each case had lapsed when the movant turned eighteen and thus that it no longer had authority to enforce the restitution orders. The Commonwealth appealed to the Daviess Circuit Court, which, by order entered November 18, 2004, reversed.

Sadler v Com ,2005-CA-000604 - Published ;Dismissing Appeal -- PDF

Anthony Sadler appeals from the Mercer Circuit Court’s order denying his motion seeking RCr 11.42 relief. For the following reasons, we must dismiss this appeal.

Sanders V Com.,2005-CA-000104 -- Not Published ; Affirming -- PDF

Juan Leotis Sanders appeals pro se from an order entered by the Jefferson Circuit Court denying his motion seeking CR 60.02 relief. For the reasons stated hereafter, we affirm.

Savage v Com.,2005-CA-000839 --Not Published, Affirming -- PDF

James Savage appeals his convictions of firstdegree promoting contraband and second-degree persistent felony offender. We affirm.

Saylors v Com, 2004-CA-000514 --Not Published ; Affirming -- PDF

Under Kentucky Rules of Evidence (KRE) 804, a statement against interest is not excluded by the hearsay rule if the declarant is unavailable as a witness. In this case, the primary issue we must decide is whether Herman Lee Vires’ statement to a corrections officer, that he planned not to testify in a legal proceeding even prior to receiving an alleged threatening statement fell within the parameters of KRE 804 as an exception to the hearsay rule. Because we hold that it did not, we affirm the judgment of the Breathitt Circuit Court.

Schindewolf v Com., 2004-CA-001343 -- Not To Be Published ; Affirming -- PDF

Dale Schindewolf, pro se, has appealed from an order of the Hardin Circuit Court entered on June 25, 2004, which denied his motion for relief pursuant to RCr1 11.42. Having concluded that Schindewolf’s arguments are without merit, we affirm.

Schott v Com.,2005-CA-000292 --Not Published, Affirming -- PDF

Steve Schott appeals from a judgment of the Jefferson Circuit Court finding him guilty of complicity to possess cocaine and tampering with physical evidence and sentencing him to ten years’ imprisonment. He argues that the trial court was required to suppress evidence seized from his person because police officers were executing a search warrant for which probable cause had expired. He further contends that he was entitled to a directed verdict on the charges and that cumulative errors resulted in an unfair trial. We disagree and affirm the trial court.

Scott V Com.,2004-CA-000039 -- Not Published ; Affirming -- PDF

Edgar Scott appeals from a judgment of the Fayette Circuit Court, entered December 16, 2003, sentencing him to five years in prison for the crime of first-degree sexual abuse as outlawed by KRS 510.110(1)(b). A jury found that Scott had subjected a child under twelve to sexual contact. Scott maintains that he did not receive a fair trial because the trial court permitted one of the physicians who examined the child to testify that a normal exam was “consistent” with the allegations of abuse, and because the child’s mother testified that she believed the child’s allegations. Convinced that the physician’s testimony was not improper and that the mother’s testimony, to which there was no objection, did not render the trial manifestly unfair, we affirm.

Searcy v Com, 2004-CA-001819 --Not To Be Published; Affirming -- PDF

Christopher Searcy appeals from a judgment of conviction entered by the Mercer Circuit Court in which he was found guilty of one count of theft by deception over $300.00. There being no reversible error, we affirm.

Sensley Jr. v Com., 2005-CA-000344 --Not To Be Published ; Affirming -- PDF

John Sensley appeals from a judgment of the Jefferson Circuit Court convicting him of possession of a firearm by a convicted felon and possession of drug paraphernalia while in possession of a firearm. Sensley entered a conditional guilty plea to these charges pursuant to RCr1 8.09, reserving the right to appeal the circuit court’s ruling on his motion to suppress evidence. Finding no error, we affirm.

Shaw Jr, v Com.,2005-CA-001906 -- Not Published, Affirming -- PDF

Willie Lee Shaw Jr. appeals from an order of the McCracken Circuit Court denying his motion to vacate his conviction pursuant to CR2 60.02. We affirm.

Shabazz v Com.,2005-CA-001538 -- Not Published ; Affirming -- PDF

Rahim Adil Dante Shabazz, pro se, appeals from an order of the McCracken Circuit Court that denied his motion for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. After reviewing his claims alleging ineffective assistance of counsel, we conclude that the trial court did not abuse its discretion in denying the motion. Thus, we affirm.

Shegog v Com.,2005-CA-000367 -- Not Published, Vacating and Remanding -- PDF

Kevin Shegog, pro se, has appealed from an order entered by the Campbell Circuit Court on December 30, 2004, which denied his pro se RCr2 11.42 motion to vacate, set aside, or correct the trial court’s final judgment and sentence of imprisonment without holding an evidentiary hearing. Having concluded that the trial court erred in summarily denying Shegog’s claims of ineffective assistance of counsel, we vacate and remand for further proceedings.

Shields v Com.,2004-CA-002603 --Not Published ; Affirming -- PDF

Rodney L. Shields (Shields), appeals a jury verdict and the judgment of the Muhlenberg Circuit Court finding him guilty of promoting contraband, first degree, and of being a persistent felony offender, and sentencing him to ten years imprisonment. The conviction and sentence are affirmed.

Simpson v Com, 2003-CA-002279 --Not Published ; Affirming -- PDF

Everett Darone Simpson brings pro se Appeal No. 2003-CA-002279-MR from a September 24, 2003, Opinion and Order of the Fayette Circuit Court summarily denying his Ky. R. Crim. P. (RCr) 11.42 motion. Everett Darone Simpson also brings pro se Appeal No. 2005-CA-001036-MR from a March 3, 2005, Opinion and Order of the Fayette Circuit Court summarily denying his Ky. R. Civ. P. (CR) 60.02 motion to vacate sentence. We affirm.

Simpson III v Com., 2005-CA-001558 -- Not Published ; Affirming -- PDF

J.B. Simpson, III appeals from his conviction of first degree trafficking in a controlled substance, first offense, and of being a persistent felony offender in the second degree. He argues that the trial court erred when it refused his request for a criminal facilitation instruction and when it refused to grant a mistrial after the confidential informant testified that Simpson’s brother had killed the informant’s cousin. Finding no error, we affirm.

Sims v Com.,2005-CA-000506 -- Not Published, Affirming -- PDF

Jonathon Sims appeals from an order of the Daviess Circuit court denying his motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. Sims raises several issues related to his trial counsel’s performance and claims ineffective assistance. We disagree and affirm the trial court.

Simmons v Com., 2005-CA-001978 -- Not Published ; Affirming -- PDF

Tarus Jermaine Simmons appeals from an order of the Warren Circuit Court denying his motion for post conviction relief pursuant to RCr 11.42. Simmons pled guilty to two indictments (Case No. 00-CR-00829 and Case No. 01-CR-00314) under a single plea agreement. Later, upon the recantation of the victim, the charges in Case No. 00-CR-00829 were dismissed and the sentence vacated. Simmons contends that this entitles him to release from the plea agreement to pursue a trial in Case No. 01-CR-00314. For the reasons stated below, we affirm.

Sizemore v Com., 2004-CA-001670 --Not Published ; Affirming -- PDF

Beverly Sizemore appeals from a judgment entered by the Owen Circuit Court after she and numerous codefendants were found guilty of multiple drug-related offenses including, in her case, engaging in organized crime and complicity to trafficking in five or more pounds of marijuana. For the reasons stated hereafter, we affirm.

Smallwood v Com.,2004-CA-000714 --Not Published, Affirming -- PDF

Darrell Smallwood appeals from a final judgment of the Bullitt Circuit Court wherein he was convicted of sex offenses and sentenced to five years in prison. He asserts five separate trial errors and contends that the judgment rendered against him should be reversed. We affirm.

Smith v Com, 2004-CA-002092--Not To Be Published; Affirming -- PDF

Raymond Smith (Smith) brings this appeal from an order of the Laurel Circuit Court, entered September 21, 2004, summarily overruling his pro se motion to vacate the judgment arising from his unconditional guilty plea to two counts of capital murder,1 two counts of complicity to commit kidnapping,2 and one count of felony theft by unlawful taking,3 pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Before us, Smith asks for a remand to the circuit court for an evidentiary hearing, arguing that the circuit court erred in failing to hold an evidentiary hearing as to the involuntariness and unknowingness of his guilty plea and effective assistance of counsel relating specifically to whether counsel informed him of the contents of a psychiatrist’s report. We affirm.

Smith v Com. 2005-CA-000116--Not To Be Published; Affirming -- PDF

On August 20, 2003, a Franklin County grand jury returned an indictment charging Len Smith with trafficking in a controlled substance, first offense,1 possession of a controlled substance, first offense,2 and with being a persistent felony offender in the first and second degree.3 Following a trial, the jury found Smith guilty on the trafficking charge and of being a persistent felony offender in the second degree. The jury fixed Smith’s sentence at a total of ten years’ imprisonment, which the trial court imposed. Finding no error, palpable or otherwise, we affirm.

Smith v Com., 2004-CA-001757 -- To Be Published ; Affirming -- PDF

Scott A. Smith appeals from an order of the Boone Circuit Court granting a motion by the Commonwealth to forfeit Smith’s Ford Explorer. The vehicle was seized by police after it was found to contain drugs. Smith argues that the forfeiture of his vehicle violates the principle of double jeopardy and is unconstitutionally excessive.

Smith V Com.,2005-CA-000245 -- Not Published ; Affirming -- PDF

Israel Dunbar Smith appeals from a January 12, 2005 order of the Fayette Circuit Court denying his petition for RCr1 11.42 relief. Upon review, we affirm.

Smith V Com.,2005-CA-001609 -- Not Published ; Affirming -- PDF

Jennifer R. Smith appeals from a judgment of the Bell Circuit Court entered upon a jury verdict convicting her of one count of third-degree burglary and sentencing her to five years imprisonment. Smith contends that the trial court erred by limiting her opportunity to present mitigating evidence during the sentencing phase of the trial. Because the issue is not preserved for our review, we affirm.

Smith v Com.,2005-CA-000513 --Not Published,Affirming -- PDF

Joseph “Tiny” Smith appeals from an order of the Adair Circuit Court reinstating his conviction for first-degree trafficking in a controlled substance following a remand from this Court. He argues the Commonwealth improperly withheld evidence about a potentially exculpatory witness and therefore he is entitled to a new trial. Because the withheld evidence was neither clearly exculpatory nor material, we affirm.

Smith V Com.,2005-CA-000470 --Not Published ; Affirming -- PDF

In the early afternoon of February 20, 2004, Sergeant Johnny Garner of the Albany Police Department arrested Inis Smith on a charge of receiving stolen property after he discovered in the trunk of her car a pull-tab machine and several cartons of cigarettes, items that matched the description of property stolen earlier that day from the Southend Fuel Stop on Tennessee Road in Albany. Following a jury trial on February 9, 2005, the Clinton Circuit Court convicted Smith of receiving stolen property worth more than $300.00, in violation of KRS 514.110, and sentenced her in accord with the jury’s recommendation to five years’ imprisonment. Appealing from the trial court’s February 21, 2005 judgment, Smith contends that the Commonwealth failed to prove that she was in possession of stolen property worth more than the felony threshold of $300.00, KRS 514.110(3), and that the court thus erred when it denied her motions for a directed verdict on the felony charge. The Commonwealth maintains that Smith’s allegation of error was not properly preserved, but we need not address that point because we are convinced that, even if preserved, the issue Smith raises does not entitle her to relief. The evidence supports the trial court’s directed verdict ruling and Smith’s felony conviction. Accordingly, we affirm

Smith v Com.,2005-CA-001458 -- Published ; Vacating and Remanding -- PDF

Frank A. Smith appeals from a judgment of the Jefferson Circuit Court wherein he was convicted of criminal offenses and sentenced to ten years in prison. The issue, which he raises for the first time on appeal, is whether the circuit court had jurisdiction to try him for the offenses and to enter a judgment in the case. We conclude that it did. Thus, we affirm.

Smith v Com. , 2005-CA-001838 -- Not Published ; Affirming -- PDF

Dwayne Smith appeals from a judgment of the Montgomery Circuit Court sentencing him to five years’ imprisonment for operating a motor vehicle under the influence of an intoxicant, fourth offense within a five-year period.1 Finding no error, we affirm.

Solomon V Com.,2005-CA-001410 -- Not Published ; Affirming -- PDF

James Solomon (Solomon), pro se, brings this matter of right appeal from an order of the Calloway Circuit Court, entered June 10, 2005, summarily denying his pro se motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Before us, Solomon argues that the trial court erred in failing to grant him an evidentiary hearing on three issues, both individually and cumulatively, as to counsel’s ineffectiveness. Having concluded that the trial court correctly determined that Solomon was not entitled to an evidentiary hearing as the record refuted his allegations of ineffective assistance of counsel, in that defense counsel’s performance was neither deficient nor prejudicial to his defense under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm.

Sommers v Com.,2005-CA-001069 -- Not Published, Affirming -- PDF

David Sommers appeals from an order of the Fulton Circuit Court denying his motions to set aside his conviction pursuant to RCr 11.42 and CR 60.02. He argues that the trial court erred by failing to provide funds for his expert at the evidentiary hearing, by refusing to allow his expert to testify by telephone, by denying his motion to recuse, and by denying his motions on substantive grounds. We find that the trial court properly complied with the prior remand orders of the Kentucky Supreme Court and this Court, and that the court did not clearly err or abuse its discretion in any of its rulings. Hence, we affirm.

Southers v Com., 2005-CA-001685 -- Published ; Vacating and Remanding -- PDF

Charles Southers appeals from an order of the Breathitt Circuit Court denying his October 17, 2003, motion to suppress evidence. Finding error, we vacate and remand. 1 Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. 2 Retired Judge John D. Miller, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.

Spanos Jr. v Com., 2004-CA-002634 --Not Published, Reversing and Remanding -- PDF

James Spanos, Jr. appeals from the Kenton Circuit Court’s judgment and order sentencing him to serve twelve years in prison pursuant to a conditional guilty plea to charges of possession of a handgun by a convicted felon and second-degree persistent felony offender (PFO). For the following reasons, we reverse and remand.

Sparks v Com., 2005-CA-002260 -- Not Published ; Affirming -- PDF

Appellant, John R. Sparks (Sparks), appeals the denial of a motion to suppress. We affirm the Johnson Circuit Court’s denial of the motion.

Stamper v Com.,2005-CA-000710 -- Not Published, Affirming -- PDF

Steve Stamper brings this direct appeal from the judgment and conviction for possession of a controlled substance and of being a second-degree persistent felony offender (PFO II). We agree with Stamper that at trial, the Commonwealth impermissibly defined reasonable doubt during voir dire, elicited testimony describing his prior felony conviction, and commented on his right to remain silent. But we hold these errors are harmless errors in light of the overwhelming evidence against Stamper. Our overarching focus is whether Stamper received “a fair trial, not a perfect one.”1 So we affirm

Stephens V Com.,2005-CA-001638 -- Not Published ; Reversing and Remanding -- PDF

Brandy Sue Stephens (Stephens) brings this appeal from a final judgment and sentence of probation of the Fayette Circuit Court, entered July 7, 2005, arising from a conditional guilty plea.2 Having concluded that the trial court erred in denying Stephens’ motion to suppress, we reverse and remand.

Stewart v Com.,2004-CA-002573 --To Be Published ;Reversing and Remanding -- PDF

This appeal involves a recent change to the Kentucky Rules of Evidence, specifically KRE 608(a). Because the trial court failed to follow the new rule, we reverse and remand the case for a new trial.

Stiver v Com., 2005-CA-001225 -- Not Published ; Affirming in Part, Vacating in Part and Remanding -- PDF

Robert Stiver appeals from an order of the Owen Circuit Court which denied his motion for relief pursuant to RCr 11.42 without holding an evidentiary hearing. For the reasons stated herein, we affirm in part, vacate in part, and remand for an evidentiary hearing solely on the issue of counsel’s alleged ineffectiveness for failing to investigate and interview witnesses. In all other aspects, we affirm.

Stogner v Com., 2004-CA-002584 -- Not To Be Published ; Affirming -- PDF

Appellant Michael Stogner entered a conditional guilty plea following the denial of his motion to suppress evidence obtained in a search of his vehicle. Stogner pled guilty to manufacturing methamphetamine, possession of a controlled substance in the first degree, possession of anhydrous ammonia in an unapproved container for the purpose of manufacturing methamphetamine, possession of drug paraphernalia, and possession of marijuana. On appeal, he argues that the officer had no reasonable suspicion to stop his car and the results of a search of the vehicle were inadmissible as “fruit of the poisonous tree.” We affirm.

Stubblefield Jr. v Com., 2005-CA-001430 --Not Published ; Affirming -- PDF

Charles E. Stubblefield, Jr. appeals his conviction of one count of flagrant nonsupport on the ground that the Commonwealth failed to prove that he had the ability to “reasonably provide” child support during the period of arrearage alleged in his indictment. For the reasons set forth below, we affirm.

Summerford V Com.,2005-CA-002321 --Not Published ; Affirming -- PDF

Robert Earl Summerford, Sr. was convicted of receiving stolen property over $300.00, possession of burglar’s tools, unlawful possession of a radio that sends or receives police messages, carrying a concealed deadly weapon and thirddegree criminal trespass. Summerford was also convicted of being a persistent felony offender in the first degree. The trial court sentenced Summerford to serve a total of thirteen years in prison.

Sumpter v Com, 2005-CA-000153 --Not To Be Published; Affirming -- PDF

In this post-conviction action, Kenneth Sumpter has appealed from the Letcher Circuit Court’s January 6, 2005, order denying his motion for RCr 11.42 relief without an evidentiary hearing. We affirm.

Swan v Com., 2004-CA-001798 -- Not Published ; Reversing in Part, Affirming in Part -- PDF

Richard Swan appeals from a judgment entered by the Owen Circuit Court after he and numerous codefendants were found guilty of multiple drug-related offenses including, in his case, engaging in organized crime, and trafficking in five or more pounds of marijuana as a principal or accomplice.For the reasons stated hereafter, we reverse as to the trafficking charge but affirm in all other respects.

Swift v Com, 2003-CA-002033 --Not To Be Published ; Affirming In Part, Reversing And Remanding In Part -- PDF

Anthony Wayne Swift was convicted by a jury of cultivating marijuana, trafficking in marijuana, and possession of drug paraphernalia. He was ordered to serve a total sentence of ten years by Ohio Circuit Court. In a separate order, the court also directed that Swift’s real property be forfeited. The appeals from these two orders have been consolidated on Swift’s motion.
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