Shelby Joe Nix v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: March 22, 2018
• Docket: 2017-SC-0217
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION ' (

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION · BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 22, 2018 NOT TO BE PUBLISHED

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SHELBY JOE NIX APPELLANT

ON APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE 'RODNEY D. BURRESS, JUDGE NO. 16-CR-00061

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Shelby Joe Nix (Nix) was involved in a traffic stop that led to his arrest

and subsequent indictment in Bullitt County. Nix proceeded to trial and was

convicted by a Bullitt County jur)r of trafficking in a controlled substance (>2

grams methamphetamine), first degree, and possession of open alcohol

beverage container in a motor vehicle. He was also found to be a persistent

felony offender in the first degree by the jury. Pursuant to the jury's

recommendation, the Bullitt County Circuit Court sentenced him to 20 years to

serve. He appeals as a matter of right to this Court on several grounds: (1) that

the circuit court should have granted his motion to suppress; (2) that the I

Commonwealth was permitted to introduce Kentucky Rule of Evidence (KRE) 404(b) evidence, violating his due process rights; (3) that the circuit court erred

in allowing an officer to testify as an expert; and (4) that the circuit court

should have granted his motion for mistrial, based on a discovery violation.

For the reasons discussed herein, we affirm the final judgment and sentence of

the Bullitt Circuit Court.

.I. BACKGROUND

In 2015, Nix was placed on probation in Bullitt Circuit Court. One of the

conditions of his probation was that he not participate in "scrapping." One of

the probation office supervisors, Officer Phil McHargue, was familiar with Nix

and had problems with him complying with a no-scrapping rule in the past.

Therefore, he asked local law enforcement to watch out for Nix because he

believed Nix was likely to violate this rule again.

On January 2, 2016, Lebanon Junction Police Officer Joshua Waters saw

Nix in traffic pulling a load of old metal. When Nix turned in front of him, \ Waters noticed that Nix's car did not have a license plate. Waters contacted

McHargue on his way to intercept Nix· and initiate a traffic stop. Ultimately,

Waters did,pull Nix over but found he did have a license plate; the license

plate, however, was not displayed as required by law. McHargue arrived on

scene and Waters asked Nix to exit the vehicle. They questioned Nix about the

scrap and McHargue called his supervisor. McHargue, under his supervisor's

advice, placed Nix under arrest for violation of his probation condition not to

scrap. McHargue and Waters searched Nix's vehicle and found a pouch with

19 small baggies of a whlte, powdery substance later det~rmined to be

2 methamphetamine .. Nix was subsequently charged with operating a motor

· ·vehicle without the rear license plate being illuminated; possessing an open

alcoholic beverage container in a motor vehicle; trafficking in a controlled

substance {>2 grams methamphetamine), first degree; and for being a

persistent felony offender in the first degree. Nix proceeded to trial, at which

time he was convicted, and the jury recommended an enhanced sentence of .

twenty years to serve.

II. ANALYSIS )

A. The circuit court did nqt err in denying Nix's motion to suppress .

.At the outset, we recognize that "we utilize a clear error. standard of

review for factual findings and a de novo standard of review for conclusions of

law" in reviewing a trial court's denial of a suppression motion. Jackson v.

Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006). The circuit court made the

following findings of fact regarding the traffic stop on January 2, 2016:

Officer Waters observed [Nix] moving South on Highway 61. Officer Waters testified the vehicle which [Nix] was ·driving did not appear to have a license plate. Further, [Nix] was pulling a trailer filled with assorted pieces of old metal. Officer Waters testified that he recognized [Nix] at that time. Further, Officer Waters testified that Probation and Parole Officer Phil McHargue had instructed Lebanon Junction law enforcement to contact him should any officer observe [N~] 'scrapping,' as doing so was a viqlation of the terms of [Nix]'s prohation. Traffic conditions kept Officer Waters from pulling out qirectly onto Highway 61. Rather, Officer Waters moved to intercept [Nix] at the intersection of Church and Main Street. While in route, Officer Waters called Probation and Parole Officer Phil McHargue to report [Nix]'s apparent involvement in scrapping. Upon Intercepting [Nix], Officer Waters was still unable to see [Nix]'s license plate. Therefore, Officer Waters testified he initiated his lights and stopped [Nix].

3 While approaching [Nix]'s vehicle[,] Officer Waters saw [Nix]'s license plate. However, the plate was severely scratched and was leaning up against the ball of the truck instead of being properly attached. Officer Waters informed [Nix] that he was.. stopped because of his improper license plate. Officer Waters testified that he then returned to [Nix]'s vehicle and made small talk with [Nix].

Officer McHargue arrived within eight minutes of [Officer Waters'] initiation of the traffic stop. Upon his arrival, Officer McHargue· instructed [Nix] to exit his vehicle. Officer Waters testified that as [Nix] exited the vehicle several items were in plain ·view that are prohibited by [Nix']s probation in another case. There was a sword next to the center console of the vehicle. There were also several empty bottles of [whiskey] in the vehicle floor boards.

Thereafter, McHargue placed Nix under arrest _and requested that Waters

transport him to the detention center.

First, this Court must determine whether there is clear error in any of

the circuit court's firtdings. "[F]indings of fact are clearly erroneous only if they

· are manifestly against the weight of the evidence." Frances v. Frances, 266

S.W.~d 754, 756 (Ky. 2008) (citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky.

1967)). There are three findings which this Court must find are against the

weight of the evidence. First, the trial court _stated that Waters saw Nix's

license plate while approaching him at first contact. However, Waters clearly

testified.that.he only saw the license plate after Nix informed him that the

license plate was present and Waters went and examined it. Second, tb.e trial

court found that Officer McHargue instructed Nix to exit his vehicle. It was

actually Officer Waters that testified that he told Nix to get out of his vehicle

when McHargue arrived at the scene. And third, the trial court found that

Waters testified that he saw several items, including a sword anc:l empty .bottles .

4 )

of whiskey, in the vehicle when Nix exited the vehicle. It was actually

McHargu~ who testified about finding these items; Waters specifically stated he

neve:r saw any contraband until after McHargue located the items in his search

of the vehicle. To the extent these facts are contrary to the evidence at the

hearing, we must find clear error. However, these facts do not ultimately affect

the conclusions of law, which we review de novo.

The trial court determined that Waters was justified in initiating the

traffic stop. The court further found that, based on his observations and

understanding of scrapping, Waters had reasonable suspicion to believe that

Nix was violating his probation. The court also found that, under the

voluntarily signed conditions of probation, Nix had consented to cooperate with

· a peace officer working at the direction of a probation officer. Thus, Nix had

consented, by means of.these conditions, to a detention past the initial stop in

order to cooperate with Waters, at the direction.of McHargue. Under these

same conditions, Nix agreed that an officer could conduct a warrantless search

if that officer has reasonable suspicion to believe Nix was violating the ' conditions of his probation. Due to these grounds, the trial court overruled

Nix's motion to suppress.

We agree with the trial court that Waters was justified in initiating the

traffic stop. At the outset, we note that Nix's objection to Waters' subjective

intent in initiating the traffic stop is irrelevant. An "officer's subjective

intention is irrelevant here; subjective intentions do not play a role in either a

probable cause or a reasonable suspicion analysis under the Fourth

5 Amendment." Lamb v. Commonwealth, 510 S.W.3d 316, 322 (Ky. 2017). "[T]he -,,

fact that the officer does not have the state of mind which is hypothecated by

the reasons which provide the legal justification for the officer's action does not

invalidate the action taken as long as the circumstances, viewed objectively, ' justify that action." Id. (quoting Scott V; United States, 436 U.S. 128, 138

(1978) (citing United States v. Robinson, 414 U.S. 218 (1973))). Thus, so long

as the objective justification for the traffic stop and further delay remain,

Waters' intent is immaterial.

Here, Waters was unable to view a license plate, correctly displayed

according to law. "It has-long been considered reasonable for an officer to

conduct a traffic stop if he or-she has probable cause to believe that a traffic

violation has occurred." Davis v. Commonwealth, 4.84 S.W.3d 288, 291 (Ky.

2016) (quoting Commonwecilth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013)

(citing Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001))); "As long as an '

offic~r 'has probable cause to believe a civil traffic violation has occurred, [he]

may stop [the] vehicle regardless of his or her subjective motivation in doing

so[.]"' Davis, 484 S.W.3d at 291 (citing Bucalo, 422 S.W.3d at 258 (quoting

Wilson, 37 S.W.3d at 749)). Based on Waters' objective view of the scene, and

his clear inability to see a properly-displayed license plate, he had probable

cause to detain Nix for a traffic stop.

However, a traffic stop is limited in many ways, so as to minimize the

intrusion upon Fourth Amendment rights. A seizure for a traffic stop "remains

lawful only 'so long as [unrelated] inquiries do not measurably extend the

6 duration of the stop~"' Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015) ·

(quoting Arizona v. Johnson, 555 U.S. )323, 333 (2009)). This Court has

followed this principle and further clarified what is required for a traffic stop to

be extended beyond·the initial purpose. "[A]n officer cannot detain a vehicle's

occupants beyond completion of the purpose of the initial traffic stop unless ~

something happened during the stop to cause the officer to have a reasonable

and articulable suspicion that criminal activity [is] afoot." Davis, 484 S.W.3d

at 292 (quoting Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013)

(citations and internal quotations omitted)).

In Davis, the officer conducted a traffic stop and, after the driver had

successfully' passed his field sobriety tests, conducted a dog-sniff of the vehicle

without any further information justifying that intrusion. 484 S.W.3d at 291.

The officer had completed the purpose of the stop yet, without any further

justification, extended the duration of the stop. This is an unconstitutional

violation of fourth amendment rights. In Bucalo, by contrast, the officers did

extend the traffic stop beyond its initial purpose but had separate and distinct

circumstances justifying the extension. 422 S.W.3d at 260-61. There, the

officers had information about Bucalo's suspicious behavior at a hotel she'd

just vacated, a simultaneous stop of a person she had just been with at the

hotel, and a search of that person that revealed drugs he claimed belonged to

Bucalo. Id. at 260.

Here, we believe the extension of the stop is more analogous to the

situation in Bucalo than in Davis. Officer Waters was not operating out of

7 curiosity or a mere hunch. He had informatidn from Officer McHargue about

the condition of Nix's probatio!l. He had viewed Nix's vehicle, containing old

metal scraps. Under his understanding of the situation, he had a reasonable

suspicion at that time that Nix ~as violating the conditions of his probation.

This, at foast, justified the delay of the stop to further investigate whether

"criminal activity [was] afoot." See Davis, 484 S.W.3d at 292. It just happened·

that Waters' further investigation, in this case, was to contact Officer

McHargue and allow him to investigate the scene. Under the particularized

facts of this situation, Nix's detention was justified by a reasonable suspicion

that Nix had violated his probation. The delay of the stop was constitutionally

sound.

The search of Nix's vehicle was also constitutionally sourtd. Probationers

have diminished expectations of privacy; "[w]hen an officer has reasonable

suspicion that a probationer subject to a search condition is engaged in

criminal activity, there is enough likelihood that criminal conduct is occurring

that an intrusion on the probationer's significantly diminished privacy interests

is reasonable." Bratcher v. Commonwealth, 424 S.W.3d 411, 413 (quoting

United States v. Knights, 534 U.S. 112, 121 (2001)). A "probationer's

acceptance of a clear and unambiguous search condition ... 'significantly

diminishe[s] [the probationer's] reasonable expectation of privacy.'" Bratcher,

424 S.W.3d at 413-14 (quoting Knights, 534 U.S. at 119-20). The tdal court

made a specific finding that Nix had agreed to a similar search consent in his

terms of probation; we find no error in this finding. As such, Nix's expectation I

( I 8 of privacy was diminished and the search was constitutional so long as the

officers involved had reasonable suspicion fo believe a probation violation had

occurred. At that time, Waters and McHargue had already arrested Nix for the

violation; as such, we hold that the totality of the circumstances justified ·a

finding of reasonable suspicion for this search. Therefore, the trial court did

not err in <;>Verruling Nix's motion to suppress.

B. The circuit court did not err in admitting KRE 404(b) evidence.

Prjor to trial, the Commonwealth entered a notice pursuant to KRE ·,,

404(c). At a pretrial conference, the Commonwealth clarified that the "prior

bad acts" evidence it intended to introduce was the fact that.Nix was on

probation at the time he was stopped and one of the conditions of that

probation was.that he was not to be scrapping. The Commonwealth stated the .;;

information was necessary ·to explain the presence of Officer McHargue and . . was inextricably intertwined with its case in chief. The defense did not object

until the day of trial, arguing the evidence was not probative of any of the

elements of the crime. The trial court overruled the objection and allowed the

Commonwealth to introduce only the fact that Nix was on probation and he

was I?rohjbited from scrapping, finding that the evidence was inextricably

I . intertwined with . . the Commonwealth's evidence. . During trial, the.

Commonwealth did refer to Nix as being on probation and that,. as a condition

of that probation, he was prohibited from scrapping. 'The Commonwealth was

prohibited from entering .or referencing the undedying crimes for which Nix

was on probation.

/ A tri~l court's ruling on evidentiary_ matters, including whether to permit

KRE 404(b) evidence is _reviewed for abuse of discretion. Rucker v.

Commonwealth, 521 S.W.3d 562, 569 (Ky. 2017) (citing Meskimen v.

Commonwealth, 435 S.W.3d 526, 534 (Ky .. 2013) (citing Anderson v.

Commonwealth, 231S.W.3d117, 119 (Ky. 2007))). "The test for abuse of

discretion is whether the trial judge's decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles." Rucker, 521 S.W.3d at 562

(citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

First, it Is clear that the evidence in question does.fall under KRE 404, as

"[e]vidence of other .crimes, wrongs, or acts ... ".Thus, it must.meet one of the

exceptions within KRE 404(b). The Commonwealth asserted, and the trial

court determined, that the evidence in question was inextricably intertwined

with the evidence necessary for the Commonwealth's case and thus admissible

Under KRE 404(b)(2). We agree. If evidence is "so inextricably intertwined with

other evidence essential to the case that separation of the two ... could not be

accomplished without serious adverse effect on the offering party[,]" then the

evidence is admissible. KRE 404(b)(2). "The· key to und_erstanding this

exception is the word inextricably. The exception relates only to evidence tti.at

must come in because it is so interwoven with the evidence of the crime

charged that its introduction is unavoidable." Major v. Commonwealth, 177

S.W.3d 700, 707 (Ky. 2005) (quoting Funk v. Commonwealth, 842 S.W.:2d 476,

. 480 (Ky. 1993)).

10 , In Major, the Court addressed several pieces of KRE 404(b) evidence,

some of w;hich we held to be admissible and some of which was held

inadmissible. However, of particular relevance here is a phone call between the

defendant and his father while the defendant was incarcerated, at which time

the defendant confessed. Major, 177 S. W.3d at 708. The rule allowing

inextricably intertwined evidence is "intended to be flexible enough to permit

the prosecution to present a complete, un-fragment~d, un-artificial ~icture of

the crime committed by the defendant, including necessary context,

background and perspective." Id. (quoting Norton v. Commonwealth, 890

S.W.2d 632, 638 (Ky. App. 1994)). "[T]he evidence of [the defendant's]

incarceration in Kentucky ... provide[dJ the setting and context within which he

called and confessed to his father of the murder ... " Major, 177 S.W.3d at 708.

In Kerr v. Commonwealth, we ~so found that the defendant's arrest

warrants were inextricably intertwined with the evidence of defendant's

trafficking. 400 S.W.3~ 250, .261 (Ky. 2013). There, the arrest warrants - explained the police's surveillance of the defendant, his initial arrest, and

further search of his hotel room which led to the discovery of evidence of

trafficking. Id. "[A] jury 'cannot be expected to make its decision in a void-

without knowledge of the time, place, and circumstances of t~e acts which

form the basis of the charge."' Id. at 262 (quoting United States v. Moore, 735

F.2d 289, 292 (8th Cir. 1984) (citation omitted)). In Kerr, "[t]he existence of the

arrest warrants here was necessary to an adequate understanding of the

context of the officers' conduct-it provided the setting and context of the

11 events surrounding the officers' surveillance of [the defendant]'s guest room."

400 S.W.3d at 262-63.

Similar to these cases, we hold that Nix's probationer status ar_id his no-

scrapping condition were inextricably intertwined with the evidence of his

trafficking. It was the traffic stop that initiated the encounter with Nix. But, it

was his status as a probationer that called Waters' attention to him; it was the

information from McHargue that led to the encounter. Additionally, the jury

had to have some explanation for why Nix was arresteq prior to the search of ' his vehicle. Without the fact that he was arrested for a probation violation, the

jury would be left wondering how he could be taken into custody for an

improper license plate. The jury also needed to have information as to who

McHargue was, his familiarity with Nix, and the reason for the search of the

vehicle. Only with this information would the jury understand the context for

finding the evidence of trafficking. As such, the evidence was inextricably

intertwined and admissible pursuant to KRE 404(b)(2). Therefore, the circuit

court did not abuse its discretion in allowing this evidence to be admitted.

C. The circuit court did not err in allowing Captain Halbleib to testify as an expert witness without personal knowledge. I I On September 1, 2016, the Commonwealth filed a notice of expert

.witness, informing the defense of its intent to call Captain Mike Halbleib,

Director.of the Drug Task Force in the Bullitt Coupty Sheriffs Office, as an

expert witness in its case. On September 7, 2016, defense counsel filed a . ( . .

motion to exclude Captain Halbleib's testimony on various grounds. At that

time, it appears the trial was schedule~ for that same month but was later 12 continued to January, 2017. On September 12, 2016, the court addressed the

notice and motion to exclude, finding that the defense was entitled to more

information on the qualifications of the witness but that it could be

accomplished at trial. , On January 26, 2016, when the Commonwealth called Captain Halbleib

as a witness, Nix again ·objected to the witness, claiming the prosecution was ·

·broaching the area of the witness being "qualified as an ·expert witness." The

defense stated the witness "may well meet minimum qualifications as expert"

· but they had yet to hav_e a hearing as to the qualifications. The trial court

found there was no need for a hearing as to the content of Captain Halbleib's

testimony under Daubert and this Court's precedent, but the Commonwealth

needed to lay the proper foundation for the witness's expert ,qualifications.

The trial court specifically overruled t~e objection and questioning of ~he

witness continued. Captain Halbleib testified as to. his experience, awards, and

credentials and testified that the bindles of drugs, packaged separately, found

in Nix's car were consistent with drug trafficking, from his experience.

To this Court, Nix claims that because Captain Halbleib "had no personal

knowledge of the case as required 'by KRE 602," then he "should not have been

allowed to testify." Yet, it is clear from this record and defense counsel's

arguments at trial that Captain Halbleib was called as an expert witness

pursuant to KRE 703. Defense counsel even requested a hearing as to the

qualifications of the expert witness. KRE 602 specifically states that the

requirement for personal knowledge rule "is subject to the provisions of KRE.

13 703, relating to opinion testimony_by expert witnesses." As an expert, Captain

Halbleib did not haye to have personal knowledge of the underlying case but . .

was merely required to rely upon trustworthy facts or data under KRE 703.

Thus, there was no error in allowing Captain Halbleib to testify.

D. The Circuit Court did not abuse its discretion in denying Nix's motion for mistrial. '

At trial, the Commonwealth introduced a request for evidence

examination to the Kentucky State Police as its Exhibit 8 through Chief Terry

Phillips. H·e identified and explained the form that he personally brought to the

lab with the physical evidence in question. The Commonwealth then called

Tom Frisby, a forensic chemist with Kentucky State Police Laboratory. Defense

counsel attempted to question him about Exhibit 8 and he stated that the form

was different than the one he had in his file. After further examination,

defense counsel moved for a mistrial based on the fact that they did not have

this other form and there were "substantial differences" from the form turned

over in discovery. The trial court conducted a brief hearing outside the

presence of the jury, questioned Mr. Frisby about the two documents, and r heard argument- from }?oth the defense and the Commonwealth. The court

determined that there were no substantial differences between the forms and

overruled the motion for mistrial, finding no prejudice to Nix.

Both documents were preserved in the record and this Court has

reviewed the differences between the two. The ti-ial court accurately

determined that the differences between the two forms were minimal; the

description of the evidence and offense information are practically.identical. 14 The main differences are: the addition of a sticker from the lab with a lab item

number; typographical changes (font size, date format, a. small handwritten

word, etc.); the specific language in the examination requested (one requests

examination for methamphetamine and the other requests for identification of

any unknown alleged illegal drug); and the addition of signatures at the bottom

of Mr. Frisby's form (the names were already listed on the form from Chief

Phillips). Most< notably is the fact that the offense date, location, offender

name, offense description, and description of the evidence· are substant~ally the

same.

The law on review of a decision to grant or qeny a mistrial is clear:

"Broadly speaking, '[w]hether to grant a mistrial is within the sound discretion

of the trial court, and 'such a ruling will not be disturbed absent ... an abuse of

that discretion."' Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009)

. (quoting Bray v. Commonwealth~ 177 S.W.3d 741, 752 (Ky. 2005) (quoting , .

Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004))). "However, '[a]

mistrial is an extreme remedy and should be resorted to only when there

appears in the record a manifest necessity for such an action or an urgent or

real necessity."' Cardine, 283 S.W.3d at-647 (internal citation omitted). Even

though."a trial court is vested with discretion on granting a mistrial, the power

to grant a mistrial ought to be used sparingly and only with the utmost \ · caution, under urgent circumstances, and for very plain and obvious causes."

Id. (quoting Commonwealth v. Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing

Glover v. McMackin, 950 F.2d 1.236, 1240.(6th Cir. 1991)). This "error must be

15 'of such character and magnitude that a litigant will be denied a fair and

impartial trial and the prejudicial effect can be removed in no other way [except

by grant of a mistrial]."' Cardine,·283 S.W.3d 641, 647 (Ky. 2009) (qu~ting

Bray, 177 S.W.3d at-752 (quoting Gpuld v. Charlton Co., Inc., 929 S.W.2d 734,

738 (Ky. 1996) (emphasis removed))).

We hold that the trial court did not abuse its discretion in denying a

mistrial. What occurred was an inadvertent error in form. The two forms were

largely the same; we see no preju_dice incurred by Nix. There was no new

information presented in the new form that was exculpatory or would have

changed the outcome of Nix's trial. As there was no error that denied Nix a fa~r

and impartial trial, we affirm the trial court's decision to deny a mistrial.

III.. CONCLUSION

After a careful review of the record and the issues before this Court, we

hold that there was ·no error in the trial court's rulings of law. As such, we_

affirm the judgment of the Bullitt County Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

John Cook John A.· Cook & Associates

COUNSEL FORAPPELLEE:

Andy Beshear Attorney General of Kentucky · I Mark D. Barry · Assistant Attorney General 16