Aug. 12, 2011 COA Minutes — Nos. 746-765 (20 decisions; 8 published)

 Aug. 12, 2011 COA Minutes —     Nos. 746-765 (20 decisions; 8 published)

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PUBLISHED DECISIONS (with link to full text at AOC):

746.   CRIMINAL PROCEDURE.  DISMISSAL OF FACIAL VALID INDICTMENT FOR PROSECUTORIAL CONDUCT NOT UPHELD.
COMMONWEALTH OF KENTUCKY
VS.
GRIDER (LEON)
REVERSING AND REMANDING WITH DIRECTIONS
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS AND FILES SEPARATE OPINION)
2009-CA-002080-MR
TO BE PUBLISHED
RUSSELL
TAYLOR, CHIEF JUDGE: The Commonwealth of Kentucky brings this appeal from an October 6, 2009, order of the Russell Circuit Court granting Leon Grider’s motion to dismiss an indictment charging him with a total of fifteen counts of trafficking in a controlled substance and bribing a witness. We reverse and remand with directions.
To summarize, the circuit court dismissed the indictment without prejudice against Grider due to the Commonwealth’s failure either to turn over the original documents or to provide meaningful access to these documents in compliance with its May 1, 2007, order. While we certainly do not condone the Commonwealth’s actions, we, nonetheless, believe the circuit court erred by dismissing the indictment and thus reverse the order of dismissal.
748.   CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.  WARRANTLESS AUTO SEARCH NOT UPHELD ON APPEAL.
TURNER (RAY LEWIS)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND DIXON (DISSENTS)
2009-CA-002141-MR
TO BE PUBLISHED
MUHLENBERG
LAMBERT, SENIOR JUDGE: A jury found Ray Lewis Turner guilty of trafficking in methamphetamine and determined that he was a persistent felony offender in the first degree. He was sentenced to serve ten years in prison. He brings two issues before us for review, and after our examination of the record, we reverse and remand.
Upon the trial court’s findings, we accept that Turner was acting nervously (a fact of dubious importance) and making movements that hid his hands and whatever else he was doing from view. However, at the time of the search, he was securely in police custody in the back seat of a cruiser with no opportunity to disturb the interior of the truck. This is the precise circumstance that Arizona v. Gant addressed, and as the most recent authority from this nation’s highest court, we are bound to follow it on this point of federal constitutional law.
Upon the foregoing, we reverse the final judgment of the Muhlenberg Circuit Court and remand with directions to suppress the evidence seized in the vehicle.
751.  UNEMPLOYMENT BENEFITS.
SKEES (LESA BORNTRAEGER)
VS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.
OPINION REVERSING
THOMPSON (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (CONCURS)
2010-CA-000389-MR
TO BE PUBLISHED
JEFFERSON
THOMPSON, JUDGE: Lesa Borntraeger Skees appeals from an Opinion and Order of the Jefferson Circuit Court affirming a decision of the Kentucky Unemployment Insurance Commission (KUIC) denying Skees’s claim for unemployment benefits. Skees contends that the KUIC’s determination that she was properly terminated from employment due to employee misconduct was not based on substantial evidence and was contrary to law. We conclude that KUIC’s determination was based on an improper application of the law and reverse.
754.  EVIDENCE. USE OF VISUAL AIDS AT TRIAL.
JONES (JANET), ET AL.
VS.
OVERSTREET (STEPHEN K.) M.D., ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000920-MR
TO BE PUBLISHED
JEFFERSON
MOORE, JUDGE: Janet and Ronald Jones appeal a defense verdict in their medical negligence action against Stephen K. Overstreet, M.D., Stephen K. Overstreet, M.D., PLLC, and Humana Insurance Company (collectively “appellees”). The sole issue on appeal is whether the trial court committed reversible error in admitting a wire into evidence on the basis that the wire qualified as a true replica of the instrument that allegedly caused the injuries at issue in the appellants’ action. Finding no error, we affirm.
Dr. Overstreet performed an esophageal dilation procedure at Baptist Hospital Northeast on Janet’s esophagus for what Dr. Overstreet suspected was a mid-esophageal stricture. The appellants filed a medical negligence suit in Jefferson Circuit Court against Dr. Overstreet and his practice, and the case proceeded to trial. Both of the appellants’ experts, Drs. Alvin Zfass and Patrick Okolo, testified that Dr. Overstreet’s method of marking, securing, and controlling the guide wire during Janet’s procedure fell below accepted standards of care and had caused the guide wire to move beyond the stomach, bend into a sharp edge at the front end, and perforate Janet’s duodenum.
As noted, the sole issue raised in this appeal is whether the trial court committed reversible error when it allowed the appellees to introduce the sample guide wire into evidence. The appellants first argue that the only wire that should have been entered into evidence was the actual wire that Dr. Overstreet used to perform Janet’s esophageal dilation procedure, and that objects used as visual aids are never admissible as evidence and should never be submitted to a jury. We disagree.
Generally speaking, “Visual aids are a part of the witness’ testimony but they are not a substitute for testimony, nor are they admitted as exhibits.” Hellstrom v. Commonwealth, 825 S.W.2d 612, 616 (Ky. 1992); see also Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997). However, the appellants’ argument is legally incorrect if the object or visual aid in question qualifies as a “true replica” under Kentucky precedent. See, e.g., Cincinnati, N.O. & T.P. Ry. Co. v. Duvall, 263 Ky. 387, 92 S.W.2d 363, 366 (1936) (holding that such a model or object “may be submitted to the jury to aid them in understanding how an event occurred or might have been prevented.”) (citing 22 C.J. 768, § 869) (emphasis added); Hogan v. Cooke Pontiac Co., 346 S.W.2d 529, 532 (Ky. 1961) (holding that “true replica[s]” are allowed into evidence when they are a “useful aid to the jury in understanding the evidence and in obtaining a clear comprehension of the physical facts”); Mitchell v. Commonwealth, 2005 WL 2316195 (Ky. 2005)(2003- SC-000670), at *4, note 53 (explaining that a visual aid qualifying as a “true replica” may be formally admitted into evidence); see also Gorman v. Hunt, 19 S.W.3d 662, 669, n. 33 (Ky. 2000) (“the prevailing practice in trial courts in civil cases is not only to permit, but, without a request from the jury, to send exhibits back to the jury room when the jury begins its deliberations.”).
We disagree. However, before addressing these alternative arguments, we must first discuss what a “true replica” is under Kentucky precedent, and why the guide wire qualified as a “true replica.”

In Kentucky, models or objects are “true replicas,” and admissible evidence for the jury to consider where they are properly identified and authenticated as evidence of the things which they represent and where the items they represent are relevant. Duvall, 92 S.W.2d at 366. “Any evidence to the contrary goes to weight, not admissibility” of the evidence. Allen v. Commonwealth, 901 S.W.2d 881, 885 (Ky. App. 1995). And, like any other evidence, “It is within the sound discretion of the trial judge to determine whether the probative value of [the true replica] evidence is outweighed by its possible prejudicial effect and to admit or exclude it accordingly.” See Beard v. Commonwealth, 2006 WL 1360887 (Ky. 2006)( 2004-SC-000548-MR), at *4 6 (citing King v. Grecco, 111 S.W.3d 877, 885 (Ky. App. 2002), and Rake v. Commonwealth, 450 S.W.2d 527 (Ky. 1970)). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

 In sum, Kentucky’s definition and treatment of a “true replica” essentially mirrors the explanation of admissible models and replicas provided in 29A Am. Jur. 2d. Evidence § 1006 (2011),7 which states in relevant part:
Models and objects offered in evidence for purely illustrative purposes must not only be relevant and material in character to the ultimate fact sought to be demonstrated by their use, but, additionally, must be supported by proof showing such evidence to be substantially like the real thing and substantially similar in operation and function to the object or contrivance in issue. A model or replica should be excluded where the jury is apt to be misled by it or by its use. However, the fact that a model differs in some respects from the original will not prevent its admission in evidence or its use for purposes of demonstration or illustration, where such dissimilarity is clearly explained to the jury, or where the difference is not such as to mislead the jury.
(Internal citations omitted).

In short, before the jury had the sample guide wire for its deliberations, virtually everything that could have been done to the sample guide wire had already been done to it, along with other sample guide wires, during the trial. There is no reason to believe that admitting the sample guide wire into evidence was “devastating” to the appellants’ case. Indeed, the trial court recognized that admitting the wire into evidence posed little danger of prejudicing the appellants’ case when it stated, “I’m not sure there’s anything more that [the jury] can glean from the wire that hasn’t already been stated by the physicians.”
For the same reasons, even if the sample guide wire was the “needlessly cumulative” evidence that the appellants allege, any error that resulted from admitting it into evidence was harmless. See CR 61.01; see also Mitchell, 2005 WL 2316195 at *5 (“We do not believe that the use of the [replica] gun prejudiced the jury in a substantial manner in light of the totality of the evidence[.]”).

 756. CIVIL RIGHTS CLAIM.
MENDEZ (FULLMER A.)
VS.
UNIVERSITY OF KENTUCKY BOARD OF TRUSTEES, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001244-MR
2010-CA-001311-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Fullmer A. Mendez appeals from the Fayette Circuit Court’s trial judgment pursuant to a jury verdict, entered on May 12, 2010, in favor of University of Kentucky Board of Trustees (hereinafter “the Board”) and Bambang Sutardjo. This action was filed under Kentucky Revised Statutes (KRS) Chapter 344, the Kentucky Civil Rights Act. Mendez claims that his job termination constituted unlawful religious discrimination. He also appeals the trial court’s order, which denied his Kentucky Rules of Civil Procedure (CR) 59.01 motion for a new trial, which was entered on June 15, 2010. In addition, the Board and Sutardjo cross-appeal on the grounds that the trial court erred in failing to grant summary judgment on all issues and erred in instructing the jury. For the reasons which follow, we affirm the decisions of the Fayette Circuit Court.

761.  EDUCATIONAL NEGLECT OF CHILD.
C. (M.)
VS.
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALH AND FAMILY SERVICES, ET AL
OPINION AFFIRMING
DIXON (PRESIDING ) KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-002088-ME
TO BE PUBLISHED
CLARK

DIXON, JUDGE: M.C. (Mother) appeals an order of the Clark Circuit Court, Family Division, finding educational neglect of her child, D.C. (Child). After careful review, we affirm.

In the case at bar, the facts and evidence permitted an inference that, by incurring thirty absences and sixteen tardies, Child was unable to benefit from the instruction, structure, and socialization provided in a classroom setting. Despite Mother’s argument to the contrary, we are not persuaded that “good” grades precluded a finding of educational neglect in this case; rather, we conclude that providing an adequate education for a child’s well-being necessarily requires a parent to ensure the child attends school each day to participate in educational instruction. Here, Mother’s repeated inability to ensure Child attended school each day presented a threat of harm to Child’s welfare by denying Child the right to educational instruction.  After careful review, we conclude the trial court’s finding of educational neglect is supported by substantial evidence; accordingly, we affirm. For the reasons stated herein, the order of the Clark Circuit Court is affirmed.

763.  CRIMINAL LAW.  CR 60.02 PRO SE APPEAL.
JUAREZ (ANGEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000017-MR
TO BE PUBLISHED
BOONE

VANMETER, JUDGE:    Angel Juarez appeals from the Boone Circuit Court’s order denying his motion for relief pursuant to CR1 60.02. We affirm.

764.  APPEALS.  INERLOCTORY ORDER (TEMPORARY SUPPORT AND CUSTODY) IN CUSTODY DISPUTE NOT FINAL.
DRUEN (MELISSA ANN)
VS.
MILLER (PAULA JEAN)
OPINION DISMISSING
VANMETER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000278-ME
TO BE PUBLISHED
JEFFERSON

ANMETER, JUDGE:    Melissa Ann Druen appeals from an order of the Jefferson Circuit Court, Family Division, denying her motion to dismiss Paula Jean Miller’s petition for custody of Druen’s biological minor child. Finding that the order was interlocutory and not appealable, we dismiss the appeal.

In the case at bar, Druen seeks to appeal an order of the family court denying her motion to dismiss Miller’s petition on the basis that Miller lacked standing to seek custody of the minor child. However, the order does not determine the issue of custody of the minor child and, therefore, is not final since it did not adjudicate all the rights of the parties. Although the order granted Miller temporary joint custody and temporary child support, those matters likewise are interlocutory and non-appealable. See Knight v. Knight, 419 S.W.2d 159 (Ky. 1967); 15 Louise E. Graham & James E. Keller, Kentucky Practice – Domestic Relations Law § 13:1 (2010). Thus this appeal is from an interlocutory order. Druen does not set forth, and we fail to appreciate, any reason to address the merits of her appeal. Accordingly, the appeal is not properly before this court. Appeal No. 2011-CA-000278-ME is hereby dismissed.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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