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KY. SUPREME COURT DECISIONS ISSUED APRIL 19, 2007 – TO BE PUBLISHED link
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Court of Appeals Decisions ordered to be Published – Issued April 20, 2007
 

2 TO BE PUBLISHED: RESPONDENT SUPERIOR –AUTHORIZED INSURANCE CARRIER–FORESEEABILITY: the respondent superior doctrine has no application when an employee engages on a “personal and private trip? which has “no connection with his masters’ business.?–
KRS 190.033 requires only that the insurance carrier be “authorized to transact business within the Commonwealth of Kentucky.? Man-O-War presented sufficient evidence to demonstrate that Legion Indemnity was authorized in Kentucky,—
We simply cannot perceive how giving someone concert tickets meets the necessary “foreseeability test? required in Kentucky to create causation for a subsequent automobile accident.—
 

6 TO BE PUBLISHED: domestic violence order: KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. That did not occur in this case, and the district court erred by entering a sua sponte mutual protection order against Kimberly  —–we further note that the court also entered the order without providing Kimberly with a hearing
 

14 TO BE PUBLISHED: contempt of court –due process-double jeopardy:
Before any hearing could be held however, Judge Hickman entered a written order entitled “Finding of Summary Imposition of Contempt,? holding Schroering guilty of contempt and setting a sentencing date before Judge Overstreet—
Contempt has been defined in Kentucky as “the willful disobedience of-or open disrespect for-the rules or orders of a court.?—
The finding of contempt was based on Schroering’s actions occurring in the presence of the court. This type of contempt may be punished summarily by the court—
the court apparently believed either, that it initially had made no determination of contempt or, subsequently, that it had made no determination of sanction. In either case, due process principles apply.—
once the court continued the matter for further proceedings, Schroering’s due process rights were violated when she was not allowed to be heard.—
In reality, delaying the sentence transforms this case into a nonsummary proceeding. Thus, it is our conclusion that Schroering’s rights against double jeopardy did attach to this proceeding
 

KY. SUPREME COURT DECISIONS ISSUED APRIL 19, 2007 – TO BE PUBLISHED
1 TO BE PUBLISHED:KBA DISCIPLINE: Jeffrey C. McKenzie – suspended – probation revoked
2 TO BE PUBLISHED:KBA DISCIPLINE: West Virginia Reciprocity suspension – J. Thomas Hardin
5 TO BE PUBLISHED:  PROSECUTORIAL MISCONDUCT: The effect of the prosecutor’s questions asserting what Bell had said to her placed the prosecutor in the position of making a factual representation . From the tenor of her leading questions to Bell, there is no doubt that she put the very words Bell refused to say in his mouth — This placed the credibility of the prosecutor before the jury,–
The foregoing authorities leave no doubt that assertions of fact from counsel as to the content of prior conversations with witnesses have the effect of making a witness of the lawyer and allowing his or her credibility to be substituted for that of the witness.—
As the error implicated federal constitutional rights, a necessary conclusion is that it was “harmless beyond a reasonable doubt. “—
By means of the prosecutor’s assertions, statements attributed to Appellant were placed before the jury without any witness saying that Appellant made such a statement. This goes to the heart of fundamental fairness and due process of law
6 TO BE PUBLISHED:  double jeopardy – directed verdict- impeachment on collateral matter – rape shield law: The fact that each of them may also have participated throughout the acts in no way negates the voyeuristic aspect of watching when not actively engaged . The plain language of KRS 531 .300(5) defines performance as not only a play, motion picture, photograph or dance, but also “any other visual representation” exhibited before an “audience .” Clearly, common sense dictates that there can be an audience of one ; in this case there was often more than one.–
The convictions for Use of a Minor in a Sexual Performance, as discussed above, were for when the Appellants were passive observers, and the Rape and Sodomy convictions were for when they were active participants. There was no double jeopardy violation .—
Under the facts of this case, “an audience may consist of one person, such as the accused herein —
Given that her virginity status is not. relevant to prove her claims of abuse by the Appellants, this would  be impeachment on a collateral matter, which is allowed while the witness is still on the stand, although not by extrinsic evidence
7 TO BE PUBLISHED:   entrapment-conspiracy-testimony on conclusions of law: A person who conspires to commit more than one (1) crime, all of which are the object of the same agreement or continuous conspiratorial relationship, is guilty of only one (1) conspiracy.”—
We now hold, expressly, that a defendant need not testify in order to avail himself of the defense of entrapment. If the evidence presented is sufficient to support an entrapment instruction, it is of no consequence that such evidence is introduced during the Commonwealth’s case-in-chief, through direct or cross-examination—
evidence that a defendant was predisposed to commit the criminal act may be shown where the accused has engaged in a course of similar crimes, where the defendant was merely afforded an opportunity to commit a preconceived plan, or where willingness to commit the crime is apparent by ready compliance.”—
“[A] witness generally cannot testify to conclusions of law.
12 TO BE PUBLISHED:  theft by failure to make required disposition: the offense of Theft by Failure to Make Required Disposition of Property (KRS 514 .070) covers a situation in which the victim gives money to the defendant with the agreement that the defendant will purchase merchandise from a third party source and give it to the victim, and then the defendant fails to purchase the item or return the money. We hold that it does. (certification of the law)
16 TO BE PUBLISHED: LESSER INCLUDED OFFENSE, PROSECUTORIAL MISCONDUCT- DUTY TO OBJECT- PHYSICAL INJURY- AMENDMENT OF INDICTMENT:
where a defendant was being tried along with two co-defendants, and counsel for one of the co-defendants objected to the admission of certain evidence, but- defendant did not object to the introduction of such evidence, the defendant failed to preserve the issue of admissibility of the evidence for appellate review) .–
, the actual infliction of physical injury to Rogers by a dangerous instrument was not required to convict Appellant of complicity to robbery in the first degree ;—
RCr 6.16 permits a court to amend an indictment at any time before verdict, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced—
“The fact that the evidence would support a guilty verdict on [an uncharged, but not lesser-included] offense does not entitle a defendant to an instruction on that offense.”—
An instruction on a separate, uncharged, but [not lesser-included] crime – in other words, an alternative theory of the crime — is required only when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive—
the prosecutor here did not try to cajole or coerce the jury to return a verdict of guilty by arguing it would meet with public favor to do so.–
19 TO BE PUBLISHED: WITHDRAWAL OF GUILTY PLEA:
A motion to withdraw a plea of guilty under RCr 8.10 is generally addressed to the sound discretion of the court; however, where it is alleged that the plea was entered involuntarily the defendant is entitled to a hearing on the motion—
Her erroneous belief that she would serve less time came from other inmates, not from assurances by the Commonwealth or counsel, and thus represented a voluntary choice by her to disregard what she was told by her attorney and in court, and not to clarify any
confusion with her experienced counsel.—

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