Opinion
NO. 2012-CA-000173-MR
03-08-2013
MCCLELLAN GAINES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rachel G. Cohen LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Frankfort, Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 07-CR-01127
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. MAZE, JUDGE: Appellant, McClellan Gaines (hereinafter "Gaines"), appeals the order of the Fayette Circuit Court denying his motion to vacate his conviction, pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42, which resulted from his 2007 arrest for Possession of a Forged Instrument in the First Degree and other charges. We find that the record conclusively refutes all of Gaines's allegations of ineffective assistance of counsel. Hence, the trial court correctly dismissed his motions without a hearing, and we affirm.
Background
The summary of the facts surrounding Gaines's arrest were sufficiently recited by this Court in its ruling on Gaines's 2008 direct appeal. In that case, the relevant facts were as follows:
On June 17, 2007, [Gaines] and [his co-defendant] Vivian Raleigh visited a store owned by Marcelo Cassiano. Cassiano's nephew, Lauro Sanchez, was working at the store when [Gaines] and Raleigh arrived. Raleigh purchased some underwear and paid with a fifty-dollar bill. It is disputed as to whether [Gaines] came into the store or waited in the car. Regardless, [Gaines] himself returned to the store later and tried to purchase a pair of jeans with another fifty-dollar bill. After receiving the first bill, Sanchez suspected the bills were fake. Sanchez declined to make the sale to [Gaines] and [Gaines] left.Gaines v. Commonwealth, 2008-CA-000489-MR, 2009 WL 2475299 (Ky. App. 2009).
Cassiano later returned to the store and Sanchez showed him the original bill and explained what had happened. As they were discussing the incident, Sanchez saw the vehicle [Gaines] and Raleigh had driven. Sanchez and Cassiano followed the car to a nearby gas station, and wrote down the license plate number.
Cassiano located Officers Slark, Kidd, and Hawkins who were parked nearby. Although Cassiano's English was limited, he explained that a fake "receipt" (which Officer Slark took to mean "bill") had been used at his store and he gave Officer Slark a description of Gaines's and Raleigh's car, the license plate number, and its current location. Officer Slark left Cassiano and Sanchez with Officers Hawkins and Kidd and proceeded to the gas station. Officer Slark located the vehicle as it was leaving the gas station. He then stopped the car to investigate. [Gaines] was driving the vehicle. Officer
Slark asked for his identification, which [Gaines] claimed not to have. [Gaines] also gave the officer a fake name. Officer Slark testified that [Gaines] appeared to be nervous and was not making eye contact. Officer Slark asked [Gaines] to exit the vehicle. Slark and [Gaines] then crossed the street where Slark asked if he could search the car. [Gaines] stated that the car was Raleigh's and that he could not consent to a search, but that he would allow Slark to search his person. During the search, Officer Slark found marijuana and [Gaines]'s driver's license. [Gaines] was then arrested.
Meanwhile, Officer Hawkins had arrived and was speaking to Raleigh. Raleigh gave Officer Hawkins permission to search the vehicle. Officers Slark and Hawkins searched the vehicle and found a backpack full of counterfeit money. Allegedly, also in the backpack were men's clothing and documents with [Gaines]'s name on them. The backpack, some of the papers, and clothing were not kept as evidence, nor were pictures taken. Officers Kidd and Slark both testified at a suppression hearing that [Gaines] admitted the backpack containing the fake bills was his.
Shortly after Gaines's arrest, police arranged for the victim to arrive on the scene and identify the person or persons who had entered the store attempting to pass the counterfeit money. Upon arriving on the scene, the victim identified Gaines as the second individual to enter the store. Following Gaines's arrest, authorities charged him with: Criminal Possession of a Forged Instrument, First-Degree; Forgery, First-Degree; Possession of Marijuana; Giving an Officer a False Name/Address; Operating on a Suspended License; Failure to Wear a Seat Belt; and No/Expired Kentucky Registration. Gaines was also charged with being a Persistent Felony Offender ("PFO") in the first degree.
Following a trial on January 24, 2008, a jury convicted Gaines of all charges, except Forgery, First-Degree, of which he was acquitted. For the sole felony conviction of Possession of a Forged Instrument, the jury recommended a sentence of ten years. Gaines waived further sentencing, accepting the recommendation of thirty days' incarceration on three of the remaining charges and small fines for the two others. Gaines appealed his conviction to this Court on several grounds, including improper rulings regarding suppression of evidence, admission of habit evidence, exclusion of testimony and the exclusion of a juror for cause. In a 2009 opinion, this Court upheld the trial court's rulings on these matters and affirmed Gaines's conviction.
On December 15, 2010, Gaines filed a pro se RCr 11.42 motion, alleging numerous instances of ineffective assistance provided by his trial counsel before and during his trial. Gaines's pro se motion raised the following issues regarding trial counsel's performance:
1) Trial counsel failed to request a missing evidence instruction regarding the backpack and men's clothing alleged at trial to have been his;The trial court appointed Gaines counsel, who filed a supplemental motion on April 26, 2011. In the supplemental motion, counsel reiterated Gaines's claim regarding a missing evidence instruction. Counsel also sought to vacate Gaines's conviction on the grounds that his trial counsel failed to move to sever Gaines's felony and misdemeanor charges and to seek the Fayette County Police Policies and Procedures handbook during discovery. Gaines alleged that the latter could have been used at trial to impeach the arresting officers' testimony regarding certain evidence against him.
2) Trial counsel failed to subpoena two witnesses who would have testified that Gaines did not have the backpack with him earlier on the day of the crime;
3) Trial counsel "failed to suppress guilty pleas from prior felonies that formed the basis for [Gaines's] PFO . . . enhancement[.]";
4) Trial counsel failed to adequately prepare for trial;
5) Trial counsel intentionally misled Gaines and his family regarding his defense at trial;
6) Trial counsel failed to object to the "show-up" arranged after the crime for purposes of identifying Gaines as the perpetrator;
7) Trial counsel was under the influence of a narcotic during trial;
8) Trial counsel failed to object to a conspiracy among police and the Commonwealth involving coercion and "secret hand signals."
On December 19, 2011, the trial court in the present action denied Gaines's RCr 11.42 motion without an evidentiary hearing. In doing so, the trial court found the following: 1) That Gaines was not entitled to a missing evidence instruction because allegations of "mere negligence" are insufficient to require it; 2) That Gaines failed to demonstrate that his prior guilty pleas were legally deficient and therefore exempt from consideration upon PFO sentencing; and 3) That the "show-up" identification was properly conducted, based on testimony from officers. As for post-conviction counsel's supplemental claim based on improper joinder of Gaines's offenses, the trial court concluded that the charges were sufficiently "intertwined" to allow for joinder under RCr 6.18 and that separation of the charges would only have confused the jury. The trial court found the remainder of Gaines's allegations to be meritless and refuted by the record. This appeal follows.
Standard and Scope of Review
The circuit court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). The reviewing court may set aside the trial court's fact determinations if they are clearly erroneous. Id. (citing Kentucky Rules of Civil Procedure (CR) 52.01). Furthermore, where the trial court has denied an RCr 11.42 motion without a hearing, a reviewing court's review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. See Baze v. Commonwealth, 23 S.W.3d 619 (Ky. 2000) (overruled on other grounds) (citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)).
Analysis
On appeal, Gaines claims that the trial court improperly denied both of his motions. Gaines further argues that the trial court improperly denied a hearing on the motions.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 480 L.Ed. 674 (1984).
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Generally, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
In determining the necessity of a hearing on allegations made in an RCr 11.42 motion, a trial court must find whether there are material issues alleged which cannot be conclusively resolved, i.e., conclusively proved or disproved, by examination of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citing Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049 (1994), and Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser at 452-53 (citing Drake v. Commonwealth, 439 F.2d 1319, 1320 (6th Cir. 1971)).
Through the dual lens of Strickland and Fraser, we review Gaines's various allegations. In the interest of clarity, we first address those allegations which Gaines alleged in his pro se motion before taking up those raised in his supplemental motion.
I. Gaines's Pro Se Motion
Again, Gaines claims that trial counsel was ineffective in failing to seek two witnesses' testimony regarding ownership of the backpack, failing to suppress guilty pleas which led to the PFO enhancement, failing to adequately prepare for trial, failing to truthfully advise Gaines and his family about his defense, failing to object to the "show-up" identification, failing to object to the trial court and Commonwealth's conspiracy against him, and being under the influence of a strong narcotic during trial. We address each allegation below.
Gaines contends that his trial counsel failed to subpoena two witnesses who he argues would have cast doubt on ownership of the backpack in which the counterfeit money was discovered. Gaines expends much energy in both his pro se and supplemental motions arguing that one witness would have testified that his co-defendant, not Gaines, was seen with the backpack earlier in the day and that the other witness would have testified that Gaines did not have the backpack on his person when he left for the victim's store. The basis of Gaines's argument seems to be that he was not the owner of the backpack or the counterfeit money within it and that his counsel's failure to attempt to establish this through the testimony of the two witnesses was deficient and prejudicial. Based on the evidence in the record, we disagree.
Where a lawyer "fails to adequately investigate, and introduce into evidence, information that demonstrates his client's factual innocence, or that raises sufficient doubts as to that question," the attorney is deficient. Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007). Gaines must also show that such a deficiency prejudiced his case or, in other words, that "counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). Gaines's argument fails on at least one, if not both, of these factors.
Very little exists in the record which demonstrates the thoroughness of trial counsel's investigation in the two witnesses. The nature of Gaines's claim, however, means that very little such evidence could ever exist in the record other than perhaps the absence of subpoenas. There does exist within the record a wealth of information addressing whether the result of Gaines's trial would have differed had the witnesses testified. At the suppression hearing on January 16, 2008, the Commonwealth offered the testimony of two arresting officers, both of whom stated that Gaines admitted, upon the discovery of the backpack in the stopped vehicle, that the backpack and the money inside were his. Additionally, Gaines's co-defendant testified that the backpack was not hers and that she never knew the backpack was in the vehicle. Another witness testified at trial that Gaines always carried a backpack. Further, Gaines's trial counsel extensively cross-examined these witnesses at suppression hearings and at trial.
The cumulative effect of this evidence, which was placed in the record - multiple times in some cases - conclusively refutes Gaines's claims that his trial counsel's alleged failure prejudiced his case. The substantial weight of the record proves too great, even under our limited review, to sustain a claim of ineffective assistance of counsel.
Gaines next, and very generally, maintains that trial counsel was unprepared at trial. Gaines, citing counsel's supposed "personal life" as the sole cause, contended "that [trial counsel] did not even attempt to present or produce no [sic] defense Evidence in [sic] the Movant's behalf when it was available." In this same vein, Gaines argues separately that his trial counsel was under the influence of strong narcotics during his trial and was therefore deficient due to the effects the drug had on him. Both arguments fail to survive even a cursory review of the written and video record from trial.
A thorough review of the record reveals that trial counsel represented Gaines with an obvious familiarity with the facts and law relevant to the case, actively and cogently participating in at least two suppression hearings, filing numerous motions to suppress, motions in limine, and fervently defending his client throughout the jury trial. This is not the conduct of an unprepared or sedated attorney. As demonstrated by the significant record to the contrary, Gaines's arguments are vague and, in addition to their possible lack of compliance with the specificity requirement of RCr 11.42, are meritless and must fail.
It is also alleged that Gaines's trial counsel was untruthful to his client and to his client's family regarding his ability to file a motion for a continuance of the trial. Like other arguments Gaines presents, the nature of this allegation makes the existence of any record on the matter impossible. However, Gaines's allegation fails to state specifically what made the statement a lie and how it prejudiced his defense or altered the outcome of the trial. The specificity of such a claim being Gaines's burden under RCr 11.42, we refuse to entertain the allegation in the absence of Gaines's compliance with the rule.
Gaines next contends that his trial counsel was ineffective in failing to object to the use of his six prior felonies as bases for his PFO enhancement at sentencing. Precedent permits defendants to challenge prior convictions "if the prior conviction is invalid and was used to support a PFO conviction." Graham v. Commonwealth, 952 S.W.2d 206, 207 (Ky. 1997) (citing McGuire v. Commonwealth, 885 S.W.2d 931 (Ky. 1994), and Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995). However, our Supreme Court has stated that "when a defendant is charged with PFO, it is incumbent upon the defendant to challenge the validity of the prior conviction within the PFO proceeding. If a defendant fails to do so, the validity of the conviction is final and cannot be challenged in a subsequent RCr 11.42 proceeding. Graham v. Commonwealth, 952 S.W.2d 206, 208 (Ky. 1997). Therefore, the trial court was correct in summarily dismissing this claim as Gaines did not raise the issue at trial.
Gaines also argues that his trial counsel was deficient in failing to suppress the results of the "show-up" identification provided by witnesses shortly following his arrest. Testimony by police and other witnesses also specifically refutes this contention. Contrary to Gaines's contention that the witness was "coerced" into identifying Gaines as the suspect, the testimony of arresting officers and the victim directly refutes any allegation of wrongdoing in conducting the identification. Furthermore, as even Gaines concedes in his motion, Gaines's attorney objected on at least one occasion to the use of the results of the identification in court, deeming them "unreliable." Accordingly, Gaines's claim is conclusively refuted by the record and the trial court did not err.
Finally, Gaines contends that the trial video reveals a "secret" conspiracy against him, consisting of "hand signals" made between the prosecutor and the court. A review of the very brief portion of the trial video to which Gaines alludes reveals benign conduct and everyday conversation which are completely devoid of any malfeasance. The trial record could not refute this fantastic allegation of fictitious conduct more conclusively.
In sum, we agree with the trial court that the allegations of ineffective assistance of counsel found in Gaines's RCr 11.42 motion are meritless. With the exception of his argument regarding the missing evidence instruction, which we address infra, we find that the trial court properly denied, without the benefit of an evidentiary hearing, all claims of ineffective assistance of counsel found in the pro se motion. Hence, we turn to the more substantive allegations of Gaines's supplemental motion.
II. Claims Raised in Supplemental RCr 11.42 Motion
Gaines raises three issues in his supplemental motion: 1) That trial counsel was ineffective in failing to seek severance of his misdemeanor and felony charges; 2) That trial counsel was ineffective in failing to seek a missing evidence instruction regarding the backpack and its contents which were not kept by police as evidence; and 3) that trial counsel was ineffective in failing to procure the Fayette County Police's manual on procedure for use in impeaching the arresting officers' testimonies. We find that all three arguments must fail.
Gaines argues that the failure of his trial counsel to move for severance of his misdemeanor charges from his felony charges constituted ineffective assistance of counsel. Gaines contends that the traffic and drug charges were insufficiently linked with the more serious felony charges to justify joinder, and that his trial counsel's failure to move for severance "tipped the scales in favor of the jury's finding him guilty." Again, we disagree.
RCr 6.18 states,
[t]wo (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.RCr 9.16 further provides, once the matter of joinder is raised, that the trial court must sever the charges "[i]f it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses."
A defendant at trial is not entitled to severance unless he positively shows that joinder would be unduly prejudicial. See Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992). "Since a defendant suffers prejudice from the mere fact of standing trial, . . . mere prejudice alone is insufficient to warrant a severance." Litton v. Commonwealth, 2010-CA-000203-MR, 2012 WL 669914 (Ky. App. 2012) (citing Ware v. Commonwealth, 537 S.W.2d 174, 176 (Ky. 1976). To sustain a claim of ineffectiveness of counsel based on failure to move for severance of charges, one must prove that the attorney was deficient in such a failure that the failure resulted in the jury being permitted to consider "that which is unnecessarily or unreasonably hurtful." Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977).
In reliance on Berry v. Commonwealth, 84 S.W.3d 82 (Ky. App. 2001), Gaines argues that "a significant factor" must be the extent to which evidence of Gaines's misdemeanors would have been admissible in a trial of the felony charges, and vice versa. While Gaines is correct, we must point out that this Court's analysis in Berry mirrors that of the Supreme Court's analysis in Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006), and its significant progeny, which lists another "significant factor." This Court and the Supreme Court have also found it important to ask whether offenses were closely related in character, circumstances and time. Berry, 84 S.W.3d at 87 (Ky. App. 2001); see also Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994); Cardine v. Commonwealth, 623 S.W.2d 895 (Ky. 1981); Schambon v. Commonwealth, 821 S.W.2d 804 (Ky. 1991); Russell v. Commonwealth, 482 S.W.2d 584 (Ky. 1972) (overruled on other grounds) and Seay v. Commonwealth, 609 S.W.2d 128 (Ky. 1980). Those that are "need not be severed." Sherley v. Commonwealth, 889 S.W.2d at 800. Hence, these two factors are to be given equal weight and consideration in determining whether joinder was proper.
Gaines contends that the trial court misapplied the law regarding joinder. Gaines states that the trial court's finding was based only on the timing of the charges. This is false. The trial court held,
[a]ll of these charges arose from the same day and were so inextricably intertwined that it would have been impossible to try and separate them without confusing the jury. The acts charged were all part of the same events that gave rise to the felony charges. There was no prejudice shown since the misdemeanor sentences were all run concurrently in any event.
The trial court's conclusions drew on several factors relevant to the issue of joinder, not just the issue of time. The trial court also considered whether the events were "inextricably intertwined," the effect of severance on the jury and any possible prejudice to Gaines resulting from joinder; and all while determining whether Gaines's counsel was ineffective in failing to move for severance. The trial court applied the appropriate factors and we reject Gaines's argument to the contrary as a basis for his RCr 11.42 claim.
Evidence presented at the suppression hearings and a trial establishes that it was very unlikely, based on the law, that even if trial counsel had moved for severance, his motion would have been unsuccessful. Several officers testified to the discovery of evidence which led to the misdemeanor charges, evidence which was discovered upon their stopping a vehicle which met the description given to them by the victim. Furthermore, while the converse cannot be said, at least some evidence of the felony charges would be necessary and admissible in prosecution of the misdemeanor charges. Without evidence of probable cause for stopping the vehicle, which was based entirely on a description of the vehicle acquired after the felonious conduct, prosecution of the lesser charges would be almost impossible. For this reason, the trial court was correct in concluding that these crimes were contemporaneous, that they were "inextricably intertwined" and that they could not be severed without confusing a jury or prejudicing the Commonwealth. Accordingly, the record conclusively refutes Gaines's argument that failure to move for severance was deficient and would have altered the outcome of his case in any way.
Gaines next argues that his trial counsel, who knew of the existence of evidence regarding the backpack and its contents, was obligated to seek a missing evidence instruction due to the exculpatory nature of that evidence. We disagree. "[T]he purpose of a 'missing evidence' instruction is to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence." Estep v. Commonwealth, 64 S.W.3d 805, 810 (Ky. 2002). The Due Process Clause is implicated only when the failure to preserve or collect the missing evidence was intentional and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed. Id.
As Gaines points out in his supplemental motion and as the trial court stated in its order, trial counsel cross-examined the arresting officers extensively at trial regarding their failure to retain the backpack and its contents as evidence. The testimony reflected, at worst, negligence on the part of the officers in failing to do so. Nothing in the testimony illustrates bad faith or intentional destruction of the evidence in question. Accordingly, we find that the trial court correctly found that Gaines was not entitled at trial to a missing evidence instruction. Testimony in the record conclusively refutes his claim of ineffective assistance.
Gaines next contends that his trial counsel failed to obtain a procedures manual for the Fayette County Police which would have allowed him to cross-examine, and possibly impeach, the testimony of the arresting officers. Like Gaines's earlier and slightly more general allegations of lack of preparation, we find this claim to be without merit. The trial record shows an active, engaged and knowledgeable trial counsel cross-examining all witnesses, including the arresting officers at great length and with an aim toward limiting their credibility, memory and even their motives regarding certain actions such as the retention of evidence. This evidence is a clear and conclusive rebuttal of Gaines's allegation that his trial counsel failed to adequately prepare for this portion of trial and that failure to procure the manual was prejudicial. Accordingly, the trial court was correct to dismiss the claim.
Gaines's final argument urges that the cumulative impact of the errors committed by trial counsel requires that his convictions and sentence be set aside. We disagree. "As we have concluded that no error occurred, '[a] combination of non-errors does not suddenly require reversal.'" Bowling v. Commonwealth, 981 S.W.2d 545, 552 (Ky. 1998) (quoting Byrd v. Commonwealth, 825 S.W.2d 272, 278 (Ky. 1992)) (overruled on other grounds); see also Funk v. Commonwealth, 842 S.W.2d 476, 483 (Ky. 1992); McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986). Hence, we reject Gaines's demand for relief based on cumulative error.
Conclusion
We find that all of Gaines's claims of ineffective assistance of counsel are conclusively refuted by the record on its face. Not only did the trial court properly find that his claims of such were meritless, but also the trial court was correct to do so without an evidentiary hearing. Therefore, the Fayette Circuit Court properly denied Gaines's motion to set aside his judgment of conviction and sentence pursuant to RCr 11.42.
ALL CONCUR. BRIEF FOR APPELLANT: Rachel G. Cohen
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Frankfort, Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky