Hunter L. Moore v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 14, 2024
• Docket: 2022 CA 001016
• Status: Unknown

Opinion

RENDERED: MARCH 15, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1016-MR

H.M.1 APPELLANT

APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE ACTION NO. 18-CR-00310

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2022-CA-1195-MR

H.M. APPELLANT

APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE ACTION NO. 18-CR-00310

1 Appellant’s full name is used in his opening brief and the trial court record. However, we agree with the Commonwealth that usage of initials when referring to the respondent in proceedings held pursuant to Kentucky Revised Statutes (KRS) Chapter 202C is proper under Kentucky Rules of Appellate Procedure (RAP) 31(B), which provides that “[i]nitials or a descriptive term must be used instead of a name in cases involving . . . mental health . . . .” AND

NO. 2022-CA-1196-MR

APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE ACTION NO. 22-H-00029-001

OPINION AND ORDER DISMISSING IN PART AND AFFIRMING IN PART

** ** ** ** **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: H.M. appeals from the Scott Circuit Court’s decision to

involuntarily commit him to the Kentucky Correctional Psychiatric Center (KCPC)

pursuant to Kentucky Revised Statutes (KRS) Chapter 202C. We dismiss appeal

No. 2022-CA-1016-MR as being from a nonfinal order. We otherwise affirm.

We need not delve deeply into the tragic underlying facts. It is

uncontested that H.M. bludgeoned his caretaker to death, for which he was indicted

for murder. It is also uncontested that H.M. suffers from serious mental illnesses,

such as schizophrenia, and was found incompetent to stand trial with no reasonable

-2- prospect for improvement. In accordance with KRS 202C.020(1), the

Commonwealth then sought to have H.M. involuntarily committed.2

Our Supreme Court has explained the purpose behind KRS 202C as

follows:

On April 1, 2021, KRS 202C went into effect. The statutes were written to close a perceived loophole in KRS 202A and 202B, the statutes governing involuntary civil commitment. Under KRS 202A, a mentally ill person may be involuntarily hospitalized if 1) they present a danger or threat of danger to self, family, or others because of the mental illness, 2) they can reasonably benefit from treatment, and 3) hospitalization is the least restrictive alternative. KRS 202A.026. KRS 202B requires the same criteria be met for involuntary commitment of an intellectually disabled person, rather than a mentally ill person. KRS 202B.040. Both KRS 202A and 202B require that an individual be able to “reasonably benefit from treatment.” So, if a person is

2 KRS 202C.020(1) provides in relevant part:

When a defendant who is charged with a qualifying offense has been found . . . to be incompetent to stand trial with no substantial probability that the defendant will attain competency within three hundred sixty (360) days, the Commonwealth’s attorney’s office . . . shall immediately petition the Circuit Court that found the defendant incompetent to stand trial . . . for an involuntary commitment proceeding, to include an evidentiary hearing and a commitment hearing, if applicable, under this chapter.

(Emphasis added). When used in a statute, shall “is mandatory[.]” KRS 446.010(39).

Thus, the Legislative Branch has facially required an independently elected member of the Executive Branch to file a pleading in the Judicial Branch. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 169 n.55 (Ky. 2009) (noting the Commonwealth Attorney is part of the Executive Branch). We decline to determine on our own initiative whether that statutory mandate is a violation of the separation of powers doctrine. See KY. CONST. §§ 27, 28.

-3- found to be incapable of reasonably benefitting from treatment, then they are not eligible for involuntary commitment under KRS 202A or 202B.

To create a process to involuntarily commit an incompetent criminal defendant who cannot reasonably benefit from treatment, the legislature passed House Bill (HB) 310, creating KRS 202C.

G.P. v. Bisig, 655 S.W.3d 128, 129 (Ky. 2022).

We shall discuss in more detail than we usually discern is necessary

the underlying procedural history of these appeals because there is no precedent

addressing KRS 202C on the merits. Consequently, the parties ask us repeatedly in

their briefs for guidance, which we shall endeavor to provide in this Opinion.

However, though we have carefully considered the parties’ briefs, we shall not

discuss any argument we deem irrelevant, redundant, or otherwise unnecessary to

address so as to keep this Opinion from becoming completely unwieldy.

We also note at the outset of our discussion that we shall not resolve

H.M.’s assertions that various aspects of KRS 202C are unconstitutional. H.M.

admits that he did not comply with the mandatory procedures for challenging the

constitutionality of a statute contained in KRS 418.075, such as notifying the

Attorney General of Kentucky of the challenge(s) while the matter was pending in

circuit court.3 Our Supreme Court has held that strict compliance with KRS

3 KRS 418.075(1) provides in relevant part:

-4- 418.075 is required before an appellate court may resolve on the merits a

challenge to the constitutionality of a statute. Benet v. Commonwealth, 253

S.W.3d 528, 532 (Ky. 2008). Thus, though we shall note some potential

constitutional infirmities in KRS 202C, we decline to opine definitively on them.

Before a person may be involuntarily committed under KRS 202C,

two hearings must be held: an evidentiary hearing, which we shall deem a “guilt”

hearing, and then a commitment hearing. We shall discuss each in detail.

But even before the guilt hearing occurs, the trial court is required to

appoint a guardian ad litem for the respondent (who formerly was a criminal

defendant) even though the guardian is not permitted to participate in the guilt

hearing. See KRS 202C.020(2) (“Upon the filing of the petition, the court shall

assign a guardian ad litem to represent the needs and best interest of the

respondent. The guardian ad litem shall be a full and active participant in all

proceedings other than the evidentiary hearing under KRS 202C.030 and shall

(1) In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard ....

(2) In any appeal to the Kentucky Court of Appeals or Supreme Court . . . which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant’s brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.

-5- independently investigate, assess, and advocate for the defendant’s [sic –

respondent would be the more proper term] best interest.”) (emphasis added). The

respondent’s criminal defense attorney is not replaced by the guardian ad litem. Id.

The upshot is that the respondent is represented by his or her original criminal

defense attorney alone at the guilt hearing, but both the criminal defense attorney

and the guardian ad litem may participate at a commitment hearing.

The first hearing is an “adversarial evidentiary hearing on the record

. . . .” KRS 202C.030(1). Unless the respondent waives4 holding it, which is

permitted under KRS 202C.030(2), the adversarial evidentiary hearing must be

held “within twenty (20) days, excluding weekends and holidays, of the filing of a

petition . . . .” KRS 202C.030(1).

The “purpose” of the guilt hearing is simple: “to determine whether

sufficient evidence exists to support a finding that the respondent is guilty of the

charged crime against him or her.” KRS 202C.030(3). The Commonwealth

Attorney “serving the county of criminal prosecution shall have the burden of

4 Given the precarious mental health of a KRS 202C respondent such that he or she was found to lack the ability to appreciate the nature and consequences of the criminal proceedings, it is difficult to determine how he or she would personally have the ability to understand the nature and consequences of the KRS 202C proceedings sufficiently enough to knowingly, voluntarily, and rationally waive any rights therein, including that to a guilt hearing. However, the parties have not sought relief based on that issue and so we decline to explore it further.

-6- proving the sufficiency of the evidence by a preponderance of the evidence.” Id.

Juries are not permitted. KRS 202C.030(4).

It is undeniably peculiar at first blush for “guilt” to be determined

without the possibility of a trial by jury and by application of the preponderance of

the evidence standard. After all, our Supreme Court has noted that, in criminal

cases, requiring sufficient proof “to allow a reasonable jury to find guilt beyond

a reasonable doubt is one of the bedrocks of the American justice system and is

one of the core protections of due process.” Commonwealth v. Goss, 428 S.W.3d

619, 627 (Ky. 2014) (internal quotation marks and citation omitted) (emphasis

added). Of course, though KRS 202C proceedings arise directly from criminal

charges and are initiated and prosecuted by the Commonwealth Attorney’s office,

they are civil in nature (even though, as in a criminal trial, the respondent’s liberty

is ultimately at stake).5 And the right to a jury trial is even deemed “sacred” under

§ 7 of our state constitution.6

5 Of course, in the overwhelming majority of instances where the Commonwealth Attorney files a petition seeking commitment under KRS 202C, if not all such instances, the respondent will already have been indicted – meaning that a grand jury has already found probable cause of the respondent’s guilt on the underlying charges. 6 There are exceptions to even that sacred right. For example, “no jury trial is available” when the issues before the court are “essentially equitable[.]” Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 210 (Ky. App. 2009).

-7- There are no published appellate decisions addressing the merits of an

appeal from a commitment order issued pursuant to KRS 202C. However, though

it declined to address the merits of sundry constitutional challenges to KRS 202C

in a case in which the appellant was seeking a writ, our Supreme Court stated that

the lack of a right to a jury trial and usage of the preponderance of the evidence

standard to determine guilt under KRS 202C presented “serious” constitutional

concerns. Bisig, 655 S.W.3d at 132. Accord M. L. S. v. Edwards, No. 2022-SC-

0365-MR, 2023 WL 4037565, at *2 (Ky. Jun. 15, 2023) (unpublished). We agree.

However, because H.M. admits he did not properly preserve his constitutionality

arguments, we similarly decline to address them on the merits.

At the guilt hearing, “[t]he respondent shall be permitted to present

evidence and cross examine witnesses. The respondent may present evidence of

affirmative defenses that could be raised at a criminal trial on the charged crime.”

KRS 202C.030(4). Insanity is such a defense. See, e.g., Wainscott v.

Commonwealth, 562 S.W.2d 628, 631 (Ky. 1978); Biyad v. Commonwealth, 392

S.W.3d 380, 382 (Ky. 2013).

The main issue raised by H.M. regarding the guilt hearing is that the

trial court erred by rejecting his insanity defense. In fact, the question before the

trial court at the guilt phase boiled down to whether H.M. is legally insane since

-8- such a person is deemed not guilty of the charged offense(s). Exantus v.

Commonwealth, 612 S.W.3d 871, 880 (Ky. 2020); KRS 504.120.

The Commonwealth argues it is “illogical for an insanity defense to

be viable in a Chapter 202C proceeding.” Perhaps it is illogical. It certainly is

unusual, especially given the prohibition on empaneling a jury and the usage of the

preponderance of the evidence standard. However, we are tasked solely with

construing the statutes, not opining as to their wisdom. Hallahan v. Mittlebeeler,

373 S.W.2d 726, 727 (Ky. 1963). Because KRS 202C.030 focuses solely on

making the trial court determine whether the respondent is “guilty,” (as opposed to,

say, requiring the court to only determine whether there is sufficient evidence

showing that the respondent committed the underlying criminal act(s) for which he

or she was charged), the General Assembly created a rubric which allows a KRS

202C respondent to raise an insanity defense because a person who is legally

insane is perforce not guilty.

Here, both the Commonwealth and H.M. presented expert testimony

at the guilt phase. Unsurprisingly, those experts disagreed about whether H.M.

was insane. H.M. also presented lay testimony which described his peculiar

behavior, and the Commonwealth presented evidence which left no doubt that

H.M. killed his caretaker. Faced with that conflicting evidence, the trial court gave

more credence to the Commonwealth’s expert and found H.M. guilty. That finding

-9- triggered the next phase, a commitment hearing. Meanwhile, H.M. filed appeal

No. 2022-CA-1016-MR, H.M. v. Commonwealth of Kentucky.

We pause here to discuss the prematurity of that appeal. The order

finding H.M. to be guilty did not conclude the KRS 202C proceedings; instead,

that order only required the holding of another hearing, the commitment hearing.

Because the order finding H.M. guilty did not adjudicate “all the rights of all the

parties” to the KRS 202C proceedings, it was not a final and appealable judgment

under the plain language of Kentucky Rules of Civil Procedure (CR) 54.01. And

CR 54.02 cannot be applied to render the guilt order final and appealable because:

a) the KRS 202C proceeding does not involve either multiple parties or multiple

claims for relief; and b) the trial court (wisely) did not attempt to make the order

adjudging H.M. guilty final and appealable. Our conclusion aligns with our

Supreme Court’s statement that it “sees no reason why a final order demanding

indefinite involuntary commitment could not itself be appealed.” Bisig, 655

S.W.3d at 131.

Because appeal No. 2022-CA-1016-MR was taken from a nonfinal

order, we are “compelled” to dismiss it since, other than limited exceptions not

present here, we lack jurisdiction to consider the merits of appeals taken from

nonfinal orders. Energy and Environment Cabinet v. Concerned Citizens of Estill

Cnty., Inc., 576 S.W.3d 173, 176 (Ky. App. 2019).

-10- We are aware of a contrary decision made by a motion panel. In

September 2022, then-Chief Judge Clayton issued a show cause order requiring

H.M. to show why appeal No. 2022-CA-1016-MR should not be dismissed as

having been taken from a nonfinal order. The show cause order explained in detail

why it appeared the order finding H.M. guilty was not final and appealable.

H.M.’s response expressed confusion about how to proceed in KRS 202C actions,

but it did not explain how the guilt order was final and appealable. Nonetheless, a

motion panel issued an order consolidating the three appeals and holding, without

explanation, that H.M. had shown cause sufficient to prevent the dismissal of No.

2022-CA-1016-MR.

Upon reflection, and with this merits panel (unlike the motion panel)

having had the ability to view the trial court record and the parties’ merits briefs,

we conclude then-Chief Judge Clayton’s explanation in the show cause order as to

why the guilt order was not final and appealable was correct. Though we strive for

consistency as a Court despite sitting in ever-rotating three-judge panels, a merits

panel may revisit a motion panel’s nondispositive decisions. See, e.g., Bowlin

Group, LLC v. Rebennack, 626 S.W.3d 177, 181 (Ky. App. 2020). And dismissing

appeal No. 2022-CA-1016-MR will cause H.M. to suffer no tangible prejudice

since his other appeals will be resolved on the merits.

-11- In sum, a KRS 202C respondent may only properly appeal from the

order requiring him or her to be committed. Of course, that appeal may involve

issues which arose in the guilt phase.

We now turn to the commitment hearing, which may not be waived

and must be held expeditiously. KRS 202C.040(1), (5). Though the commitment

hearing here was held in a courtroom, it may be held elsewhere and conducted

informally under KRS 202C.040(2). However, it is unclear how informal the

hearing may actually be since KRS 202C.040(4) provides that “[t]he manner of

proceeding and the rules of evidence shall be the same as those in any criminal

proceeding.” And, though a party may demand usage of a jury during the

commitment hearing under KRS 202C.040(4), it is unclear how, as a practical

matter, a jury may be utilized in locations other than a courtroom.

At the commitment hearing, the Commonwealth Attorney bears the

burden to show “beyond a reasonable doubt” that the respondent “meets the

criteria for involuntary commitment under KRS 202C.050.” KRS 202C.040(3)-

(4). The four criteria listed in KRS 202C.050(1) are:

(a) The respondent presents a danger to self or others as a result of his or her mental condition;

(b) The respondent needs care, training, or treatment in order to mitigate or prevent substantial physical harm to self or others;

-12- (c) The respondent has a demonstrated history of criminal behavior that has endangered or caused injury to others or has a substantial history of involuntary hospitalizations under KRS Chapter 202A or 202B prior to the commission of the charged crime; and

(d) A less restrictive alternative mode of treatment would endanger the safety of the respondent or others.

Since the General Assembly chose to insert the conjunctive word “and” between

subsections (c) and (d), all four factors must be proven beyond a reasonable doubt.

1A Sutherland Statutory Construction § 21:14 (7th ed. 2023) (“Statutory phrases

separated by the word ‘and’ are usually interpreted in the conjunctive.”).7

After admitting without objection written reports submitted by experts

and hearing testimony from the director of KCPC, the trial court held that all four

factors had been satisfied and ordered H.M. to be committed at KCPC.8 H.M. then

filed appeals No. 2022-CA-1195-MR and No. 2022-CA-1196-MR, one from the

7 We do not perceive that this is among the unusual circumstances where we must “change ‘and’ to ‘or,’ and vice versa . . . to accomplish the purpose or object of the statute.” Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 698 (Ky. 1961). 8 The trial court memorialized in writing its decision by completing a form order prepared by the Administrative Office of the Courts (AOC), AOC-708.4. A blank version of that form may be viewed at https://www.kycourts.gov/Legal-Forms/Legal%20Forms/708.4.pdf (last visited Feb. 16, 2024). The form contains a blank space for the trial court to specify the facility to which a respondent will be committed. However, we do not perceive why it is mandatory for a trial court to designate which facility should house a person committed pursuant to KRS 202C since KRS 202C.050(2) explicitly gives the Secretary of the Cabinet for Health and Family Services the authority to designate where the committed individual will be housed.

-13- original criminal case and one from the civil case opened upon the filing of the

KRS 202C petition.

We do not fault H.M.’s counsel for filing both appeals, given the

uncertainty involved with KRS 202C proceedings. For the benefit of the bench

and bar, however, a KRS 202C respondent should appeal only from the civil case

opened as a result of the filing of the KRS 202C petition. In other words, though

the filing of criminal charges led to the KRS 202C petition being filed, the KRS

202C proceedings are not criminal in nature and ordering a person to be committed

under KRS 202C has no tangible bearing on the resolution of the underlying

criminal charges. Under these facts, we decline to dismiss the appeal taken in the

underlying criminal case, but caution counsel that future appeals taken solely from

the underlying criminal cases are improper and may be dismissed. Of course, the

parties to a KRS 202C appeal may take steps to ensure that the appellate record is

supplemented with any necessary matters found solely in the record of the criminal

case under RAP 24 and 25.

Before we may address H.M.’s arguments on the merits, we must

ascertain the standards governing our review. Since there are no prior appellate

decisions addressing the merits of an appeal from an involuntary commitment

order issued under KRS 202C, we write on a blank slate.

-14- At root, appeals from involuntary commitment orders issued pursuant

to KRS 202C will involve questions of whether there was sufficient evidence to

find a respondent guilty in the first phase and to then find that the Commonwealth

satisfied the four criteria for involuntarily commitment in the second phase. Our

review here thus focuses on whether there is substantial evidence to support both

of those decisions.

Our Supreme Court has determined in analogous circumstances that

the propriety of a trial court’s having found a defendant competent to stand trial

depended on whether the competency ruling was supported by substantial

evidence. Harston v. Commonwealth, 638 S.W.2d 700, 701 (Ky. 1982). And

“where the ruling is based on substantial evidence there is no error.” Id. at 702.

“Substantial evidence is that evidence which, when taken alone or in light of all the

evidence, has sufficient probative value to induce conviction in the minds of

reasonable people.” Weinberg v. Gharai, 338 S.W.3d 307, 312 (Ky. App. 2011).

The trial court alone may judge witness credibility and weigh the evidence,

Herbener v. Herbener, 587 S.W.3d 343, 352 (Ky. App. 2019), and “[a] fact-

finder’s choice between conflicting opinions of expert witnesses rarely can be held

‘clearly erroneous.’” Gatliff v. White, 424 S.W.2d 843, 844 (Ky. 1968). See also,

e.g., CR 52.01 (“In all actions tried upon the facts without a jury . . . the court shall

find the facts specifically and state separately its conclusions of law thereon and

-15- render an appropriate judgment . . . . Findings of fact . . . shall not be set aside

unless clearly erroneous, and due regard shall be given to the opportunity of the

trial court to judge the credibility of the witnesses.”); Tolley v. Commonwealth, 892

S.W.2d 580, 584 (Ky. 1995) (declining to disturb a trial court’s decision to forcibly

medicate a person declared incompetent to stand trial and involuntarily committed

because the trial court’s decision was “consistent with the testimony and opinions

of Dr. Jacobs and Dr. Turns, and thus its findings were supported by substantial

evidence, and accordingly, under CR 52.01, could not be disturbed on appeal”).

We review de novo the trial court’s application of the facts to the relevant law.

Weinberg, 338 S.W.3d at 312.

The gist of H.M.’s first argument is that the trial court erred by

rejecting his insanity defense. As the trial court’s decision was supported by

substantial evidence, we must disagree.

Before we address the merits of that argument, we must resolve the

Commonwealth’s antecedent argument that H.M. failed to properly preserve this

issue for our review because his counsel made a motion for a directed verdict

instead of a motion to dismiss. We agree that “a directed verdict is clearly

improper in an action tried by the court without a jury.” Brown v. Shelton, 156

S.W.3d 319, 320 (Ky. App. 2004). Consequently, H.M.’s counsel should have

moved for dismissal of the petition under CR 41.02, as H.M. admits. In relevant

-16- part, CR 41.02(2) provides that “[i]n an action tried by the court without a jury,

after the plaintiff has completed the presentation of his evidence, the defendant . . .

may move for a dismissal on the ground that upon the facts and the law the

plaintiff has shown no right to relief.”

Though they “fulfill[] the same mid-trial function[,]” Morrison v.

Trailmobile Trailers, Inc., 526 S.W.2d 822, 823 (Ky. 1975), the difference

between a motion for a directed verdict and for dismissal under CR 41.02 is more

than semantics. For example, when considering a motion to dismiss under CR

41.02, a trial court “must weigh and evaluate the evidence. The trial court does

not, as in the case of a motion for a directed verdict, indulge every inference in the

plaintiff’s favor.” Id. at 824.

We recognize the “essential fairness of appellate proceedings” is

dependent upon the preservation requirement, which brings “order and efficiency”

to the appellate process. Gasaway v. Commonwealth, 671 S.W.3d 298, 312 (Ky.

2023). Nonetheless, though H.M.’s motion was not made pursuant to the correct

rule, it placed squarely before the trial court the basic issue of whether the

Commonwealth had presented sufficient evidence to find H.M. guilty. The

Commonwealth has not been ambushed on appeal by H.M.’s arguments, nor was it

similarly unable to rebut H.M.’s sufficiency of the evidence arguments at the guilt

-17- hearing. In short, under these facts a rigid adherence to the preservation

requirement would be the elevation of form over practical substance.

Our conclusion is buttressed by the inescapable fact that, albeit in a

different type of proceeding, our Supreme Court has treated as preserved a matter

requesting a directed verdict instead of dismissal under CR 41.02. See R.S. v.

Commonwealth, 423 S.W.3d 178, 184 (Ky. 2014). Notably, the Court treated a

separate, unrelated issue in that case as unpreserved. Id. at 188. As did our

Supreme Court in R.S., we will deem the issue as to whether H.M. was entitled to a

dismissal of the KRS 202C petition due to a lack of evidence as having been

sufficiently preserved for our review. In any event, our resolution of this issue

would not change if we analyzed it under the manifest injustice standard used to

review unpreserved errors under CR 61.02.

“On appellate review of a ruling on a defendant’s CR 41.02 motion,

we will overturn the trial court only for an abuse of discretion. An abuse of

discretion will be found when the trial court’s decision is arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” R.S., 423 S.W.3d at 184

(internal quotation marks, footnotes, and citations omitted). In R.S., as here, the

appellate court’s focus is on whether there was sufficient evidence to support the

trial court’s decision. Id. at 184-88. H.M.’s protestations to the contrary

-18- notwithstanding, the Commonwealth presented evidence sufficient to support the

trial court’s decision.

As the Commonwealth colloquially deems it, the guilt hearing was

largely a “battle of the experts[.]” The Commonwealth presented the testimony of

Dr. George Parker, a professor of psychiatry at Indiana University. Dr. Parker

testified that he had reviewed the evidence, crucially including videos recorded on

or near the day of the killing, and had interviewed H.M. Dr. Parker’s ultimate

conclusion was that H.M. was not insane because he appreciated the wrongfulness

of his conduct and had the ability to conform to the requirements of the law. For

example, Dr. Parker cited H.M. having told officers at the scene that he was afraid

he had killed someone and having acknowledged there are consequences for killing

a person. Dr. Parker also found it significant that H.M. expressed remorse soon

after being arrested, told officers he would plead insanity, and eventually brought

the interaction to a close by stating that he would “plead the Fifth.”9

9 H.M. strenuously argues that the trial court erred by relying at all on his invocation of his Fifth Amendment rights. The United States Supreme Court has held that “it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant’s plea of insanity.” Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 639, 88 L. Ed. 2d 623 (1986). Of course, Wainwright involved using a defendant’s silence against him in a criminal proceeding and the parties have not cited binding Kentucky authority stating whether Wainwright applies to civil commitment proceedings. In any event, though we question the propriety of the trial court’s relying on H.M.’s invocation of his Fifth Amendment rights as proof of his sanity, we need not definitively opine on the matter because the trial court’s conclusion was based on other unquestionably proper factors and observations. In other words, even if we exclude the portion of Dr. Parker’s opinion based on H.M.’s invocation of his Fifth Amendment rights, there was

-19- After Dr. Parker testified, H.M. moved for a directed verdict

(functionally, dismissal of the KRS 202C petition). The trial court denied the

motion, and properly so. The Commonwealth had presented testimony from police

officers which left no doubt that H.M. brutally killed his caretaker and Dr. Parker’s

testimony presented an adequate basis for the trial court to reject H.M.’s argument

that he was insane; i.e., to determine that H.M. was guilty.

For the same basic reasons, the trial court also did not err by refusing

to dismiss the petition when H.M. renewed his motion at the close of all the

evidence. In his case-in-chief, H.M. presented lay testimony detailing his

irrational, peculiar behavior prior to killing his caretaker. H.M. also presented the

testimony of two experts who had concluded H.M. was insane.

Dr. Amy Trivette, who previously was KCPC’s medical director,

testified that H.M. was one of only three patients in her career she had concluded

was legally insane. Dr. Eric Drogin, a psychologist, testified essentially that he

agreed with Dr. Trivette. However, Dr. Trivette could not recall if she had viewed

sufficient evidence to support the trial court’s decision to reject H.M.’s insanity defense. Any error by the trial court in relying on H.M.’s invocation of his Fifth Amendment rights was harmless beyond a reasonable doubt because “in the context of the entire [proceeding]” H.M. has not shown that the evidence regarding his invocation of his Fifth Amendment rights “was of a weight, was of a striking enough nature, or played a prominent enough role in the Commonwealth’s case to raise a reasonable possibility that it contributed to the conviction [i.e., finding of guilt].” Staples v. Commonwealth, 454 S.W.3d 803, 826-27 (Ky. 2014).

-20- the videos depicting H.M. soon after the incident and Dr. Drogin testified that he

had not viewed all of them.

The question before the court was, at its core, which expert’s opinion

to accept and which to reject. After all, the court’s choice was binary: H.M. either

was legally insane or he was not, a matter about which the experts disagreed. The

court chose to accept the testimony of Dr. Parker, placing significant weight on the

fact that he alone viewed all of the video footage of H.M. near in time to the

killing. Though H.M. disputes whether viewing that evidence was crucial or

would have impacted Dr. Trivette’s opinion, the trial court’s conclusion is logical

as that video evidence was the most contemporaneous evidence available of

H.M.’s demeanor and mindset when he killed his caretaker. Even Dr. Trivette

testified that she was unsure if watching the videos would have changed her

conclusions but admitted such contemporaneous evidence can be helpful.

Though H.M. decries it, we cannot disturb the trial court’s choice of

how to evaluate the evidence and to adjudge the credibility of the witnesses, both

lay and expert. It is a bedrock appellate principle that “[w]hen the evidence is

conflicting, as here, we cannot and will not substitute our decision for the judgment

of the [trial court].” Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). The

Commonwealth and H.M. both ably presented evidence to support their respective

positions on H.M.’s sanity. A reasonable decisionmaker had available evidence

-21- sufficient to accept or reject H.M.’s insanity defense. Under that state of relative

evidentiary equipoise, we cannot disturb the trial court’s decision to give more

weight to Dr. Parker’s opinion and to thus reject H.M.’s insanity defense.

We also must reject H.M.’s argument that the trial court declined to

find him insane simply to avoid having to release him unconditionally. KRS

202C.030(6) provides that “[i]f the court determines that insufficient evidence has

been presented to support a finding that the respondent is guilty of the charged

crime against him or her, the court shall order the immediate release of the

respondent.” We will address only whether H.M. has adequately shown that the

trial court’s decision to reject his insanity defense was based on a desire to avoid

releasing him. We shall not address H.M.’s arguments that KRS 202C.030(6)

violated his constitutional rights because it offers a perverse incentive for trial

courts to decline to find KRS 202C respondents insane because H.M. did not

preserve his constitutional arguments for our review.10

We agree with H.M. that KRS 202C.030(6) is, frankly, bizarre. There

is no obvious logical underpinning for requiring a trial court to release a person

10 H.M. requests palpable error review of his constitutional arguments in his reply brief. But H.M. does not cite authority where a court engaged in such a palpable error review of the constitutionality of a statute. Moreover, “[w]hether to undertake palpable error review is within the sole discretion of the appellate court.” Brank v. Commonwealth, 566 S.W.3d 560, 566 (Ky. App. 2018) (discussing the identical palpable error provisions of Kentucky Rule of Criminal Procedure (RCr) 10.26). Under these facts, we respectfully decline to conduct a palpable error review of the constitutionality of KRS 202C.

-22- charged with a serious offense whom it has found to be incompetent to stand trial

and legally insane. To the contrary, releasing such a person appears to be directly

contrary to the safety and welfare of both that person and the public.

We have been pointed to no explanation as to why the General

Assembly chose not to have KRS 202C emulate KRS 504.030, which requires a

person found not guilty by reason of insanity at trial to be subjected to involuntary

hospitalization proceedings held under KRS Chapters 202A or 202B. Perhaps the

omission of similar language in KRS 202C was an accidental oversight. But the

wisdom (or lack thereof) of KRS 202C.030(6) is not at issue. Instead, we must

determine whether H.M. has shown that no trial court, including the one at hand,

would find a KRS 202C respondent to be insane because doing so would require

that person to be released. H.M. has not made that showing.

First, H.M. has not shown where he raised this precise argument to the

trial court. He would thus be entitled to relief only upon a showing of manifest

injustice. Nonetheless, we would reject H.M.’s argument even if it were preserved.

Second, he has offered nothing besides conjecture to support his

argument. “[R]ecitals of the elements of a legal theory, supported by mere

conclusory statements, form an insufficient basis upon which this Court can grant

relief.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). Accord Schell v.

Young, 640 S.W.3d 24, 32 (Ky. App. 2021).

-23- Third, we have the utmost confidence that the dedicated trial judges

across this Commonwealth will faithfully apply KRS 202C.030(6), even though

they (like we) may strongly question its wisdom. Indeed, judges are required to do

just that. See, e.g., Kentucky Rule of the Supreme Court (SCR) 4.300, Canon 1.1

(“A judge shall comply with the law[.]”); SCR 4.300, Canon 2.2 (“A judge shall

uphold and apply the law . . . .”); Id. at Comment 2 (“Although each judge comes

to the bench with a unique background and personal philosophy, a judge must

interpret and apply the law without regard to whether the judge approves or

disapproves of the law in question.”); JPMorgan Chase Bank, N.A. v. Bluegrass

Powerboats, 424 S.W.3d 902, 909 (Ky. 2014) (“There is an expectation that trial

courts will apply the correct law to matters before it.”). H.M. has raised legitimate

concerns about the wisdom of KRS 202C.030(6), but he has not satisfied his steep

burden to show that the trial court here rejected his insanity defense to avoid

having to comply with that peculiar subsection.

H.M.’s final argument is that the Commonwealth failed to prove

beyond a reasonable doubt the four involuntary commitment factors listed in KRS

202C.050(1). We disagree.

There is no dispute that the Commonwealth satisfied the first two

factors, which required it to show that H.M. presented a danger to himself or others

as a result of his mental condition and that he needs care or treatment to help

-24- prevent substantial harm to himself or others. The issue is whether the

Commonwealth satisfied the final two factors, which required it to show that H.M.

“has a demonstrated history of criminal behavior that has endangered or caused

injury to others or has a substantial history of involuntary hospitalizations under

KRS Chapter 202A or 202B prior to the commission of the charged crime” and

“[a] less restrictive alternative mode of treatment would endanger the safety of

[H.M.] or others.” KRS 202C.050(1)(c)-(d).

We begin by noting that it is undisputed that H.M. did not have a

substantial history of involuntary hospitalizations under KRS Chapters 202A or

202B. H.M. apparently had been hospitalized in Alabama, where he formerly

resided, but those hospitalizations cannot satisfy KRS 202C.050(1)(c) because they

were not ordered pursuant to KRS 202A or 202B.

We turn to whether the Commonwealth showed H.M. had a

demonstrated history of criminal behavior that endangered or caused injury to

others. The term demonstrated history of criminal behavior is not defined within

KRS 202C. The Commonwealth points to no judgments of convictions showing

H.M. had been previously convicted of offenses endangering or causing injury to

others. So, the question becomes whether the statute requires the respondent to

have previous convictions. We conclude it does not. Our analysis does not track

precisely that utilized by the trial court, but our Supreme Court has commanded us

-25- to affirm on any alternate grounds supported by the record. Mark D. Dean, P.S.C.

v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014).

We must interpret the words in statutes according to their plain,

everyday meaning unless they “have acquired a peculiar and appropriate meaning

in the law[.]” KRS 446.080(4). We cannot “add or subtract from the language

used in a statute[,]” Commonwealth, Department of Revenue, Finance and

Administration Cabinet v. McDonald, 304 S.W.3d 62, 65 (Ky. App. 2009), and

must “presume every word within a statute to have some meaning.” Travelers

Indemnity Company v. Armstrong, 565 S.W.3d 550, 563 (Ky. 2018).

History does not have a technical and specialized meaning under the

law. In common parlance, as it pertains here, history means “an established

record[.]” History, MERRIAM-WEBSTER, https://www.merriam-

webster.com/dictionary/history (last visited Feb. 19, 2024).

We disagree with the Commonwealth that committing the offense

which resulted in the criminal charges that ultimately gave rise to the KRS 202C

proceedings suffices. If a finding of guilt in the prior stage of the KRS 202C

proceedings is sufficient to show a demonstrated history of criminal behavior, that

statutory requirement is essentially superfluous. After all, the only way that a

commitment hearing may occur is if the trial court has previously found that the

respondent was guilty in the first phase. And the vast majority of the serious

-26- charged offenses necessary to qualify a person to be the respondent of a KRS 202C

petition involve violence or endangerment of others. In short, if we adopt the

Commonwealth’s theory, nearly every KRS 202C respondent will have a sufficient

history of criminal behavior. We decline to construe the statute to render a portion

of it functionally meaningless. Thus, a finding that a KRS 202C respondent is

guilty in the prior phase of the KRS 202C proceedings is insufficient, standing

alone, to show that the respondent has a demonstrated history of criminal behavior.

We also reject any argument by H.M. that the Commonwealth is

required to show that he, or any KRS 202C respondent, has been convicted of

criminal offenses which endangered or injured others. The General Assembly did

not require a criminal conviction in KRS 202C.050(1)(c); instead, it only required

the Commonwealth to prove beyond a reasonable doubt that the respondent had a

demonstrated history of criminal behavior. “This Court interprets our statutes, it

cannot rewrite them.” Farley v. P&P Construction, Inc., 677 S.W.3d 415, 423

(Ky. 2023). Word choices matter. If the General Assembly intended to require a

criminal conviction, it would have so stated because behavior is not a synonym for

conviction. The General Assembly knows the difference between the terms

because it has enacted statutes which expressly require an act to be based upon a

conviction. For example, KRS 532.055(2)(a)1. provides that the Commonwealth

-27- may present in a sentencing hearing evidence of “prior convictions of the

defendant, both felony and misdemeanor[.]”

The term criminal behavior has acquired a specific meaning in the

law. Namely, criminal behavior is defined as “[c]onduct that causes social harm

and is defined and punished by law. – Also termed criminal conduct.” Criminal

behavior, BLACK’S LAW DICTIONARY (11th ed. 2019). The requirement thus is for

the Commonwealth to prove beyond a reasonable doubt that the KRS 202C

respondent has a demonstrated history of engaging in criminal conduct, meaning

conduct which causes social harm and is punishable by law. Notably, a person

may have a history of engaging in criminal conduct which did not lead to criminal

convictions since not all criminal conduct leads to a criminal conviction.

Here, the Commonwealth presented unrebutted testimony that while

in Alabama, H.M. had shot at least one arrow toward another person and had set

afire at least one lawn. Although it appears as if that misconduct did not result in

criminal charges, it undoubtedly involved criminal acts which endangered others.

The term demonstrated does not have a specialized meaning in the

law. In common parlance, it is defined simply as “to show clearly” or “to prove or

make clear by reasoning or evidence[.]” Demonstrated, MERRIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/demonstrated (last visited Feb. 21,

2024). There is no set requirement in the statute for how many qualifying prior

-28- criminal acts are necessary to demonstrate a demonstrated history of criminal

behavior. However, we are convinced that the two aforementioned criminal acts

H.M. committed in Alabama are sufficient to “show clearly” that H.M. had a

demonstrated history of criminal behavior. Because it is not before us, we express

no opinion on whether only one prior qualifying criminal act would be sufficient to

constitute a demonstrated history of criminal behavior.

Synthesizing all of those principles, the Commonwealth is not

required to show that a KRS 202C respondent has been convicted of criminal

offenses which endangered or injured others to satisfy KRS 202C.050(1)(c).

However, standing alone, the conduct for which the trial court found the

respondent guilty in the first phase of the KRS 202C proceedings is insufficient to

satisfy KRS 202C.050(1)(c). Instead, the Commonwealth must present evidence

that the respondent engaged in criminal misconduct which injured or endangered

others over and above that which led to the charges from which the KRS 202C

petition sprang. Here, the Commonwealth presented sufficient evidence to show

H.M. had a demonstrated history of criminal behavior.11

11 Because the issue has not been squarely placed before us, we express no opinion as to whether the rights of a KRS 202C respondent would be violated by being involuntarily committed based in part on past criminal conduct for which he or she was neither charged nor convicted.

-29- Finally, we must address H.M.’s argument that committing him to

KCPC was wrong because less restrictive means were available and proper. In

other words, H.M. argues the Commonwealth failed to show that “a less restrictive

alternative mode of treatment would endanger the safety of the respondent or

others.” KRS 202C.050(1)(d). A less restrictive alternative mode of treatment is

defined as “treatment given outside of a forensic psychiatric facility which would

provide a respondent with appropriate treatment or care consistent with accepted

professional practice standards and protect the respondent’s safety and the safety of

others[.]” KRS 202C.010(9). We disagree with H.M.

The gist of H.M.’s argument is that KCPC is a de facto prison as it is

located within the grounds of the Luther Luckett Correctional Complex and the

nurse’s station for its residents is separated from the residents by locked doors.

However, the director of KCPC gave unrebutted testimony that KCPC is the only

facility which currently has adequate security to house a person such as H.M. who

is committed pursuant to KRS 202C. Indeed, the director testified that KCPC

houses some other persons committed under KRS 202C. Plus, two qualified

mental health professionals submitted reports opining that the four involuntary

commitment factors in KRS 202C.050 had been satisfied.

H.M. cites no precedent in this section of his brief explaining how his

rights are violated by being committed to KCPC instead of a regional mental health

-30- hospital. And, as the Commonwealth aptly notes in its brief, KRS 202C.050(1)(d)

requires individuals to be housed in a facility which provides adequate care and

offers adequate protection for the safety of the respondent and others. Other

facilities may, arguably, have better professional treatment options, but KCPC’s

director testified that regional mental health facilities do not have the same level of

security as does KCPC. And it is uncontested that H.M. brutally killed his

caretaker and also has a history of violent criminal behavior in Alabama, so

security issues are paramount when considering where best to house him. In short,

regardless of what standard of review we utilize, the combination of H.M.’s violent

history and the seemingly unanimous opinion of the experts here that KCPC is the

appropriate facility in Kentucky for someone committed under KRS 202C means

we must affirm the trial court’s conclusion that the Commonwealth had proven

beyond a reasonable doubt that “[a] less restrictive alternative mode of treatment

would endanger the safety of [H.M.] or others.” KRS 202C.050(1)(d).

We conclude by expressing our appreciation for the dedication shown

by the Commonwealth, H.M.’s defense counsel, H.M.’s guardian ad litem, and the

trial court. The proceedings were thorough, and counsel and the court

demonstrated commendable dignity, professionalism, patience, collegiality, and

dedication commensurate with the grave nature of a KRS 202C petition.

-31- For the foregoing reasons, appeal No. 2022-CA-1016-MR is

dismissed. The Scott Circuit Court is affirmed as to appeals No. 2022-CA-1195-

MR and No. 2022-CA-1196-MR.

ALL CONCUR.

Mar. 15, 2024 ENTERED: _______________ JUDGE, COURT OF APPEALS

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Emily Holt Rhorer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Harrison Gray Kilgore Assistant Solicitor General Frankfort, Kentucky

-32-