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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED

§Supreme Tonrt of Beniuckg

2016-SC-000179-MR
TIMOTHY M. GOLDEN APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE GREGORY M BARTLETT, JUDGE
NO. 14-CR-OO499

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING

Appellant, Timothy M. Golden, appeals from a judgment of the Kenton
Circuit Court convicting him of two counts of first-degree sodomy of a child
under twelve and sentencing him to a total of forty years in prison.

As grounds for relief Appellant presents the following claims: (1) the
presence of the alleged victim’s guardian ad litem during the trial, acting in
apparent collaboration With the prosecution, deprived Appellant of a fair trial;
(2) the chief investigating officer impermissibly testified that he believed the
allegations of the alleged victim; (3) the prosecutor improperly communicated
with the alleged victim during cross-examination; (4) the trial court erroneously
failed to grant a new trial based upon the post-trial discovery of exculpatory

information from the diary of the alleged victim; (5) the prosecutor improperly

urged the jury to impose a harsh penalty for the purpose of sending a message
to the victim; and (6) the cumulative effect of the foregoing errors deprived
Appellant of a fair trial, and thus requires reversal of the judgment. For the

reasons stated below we affirm the judgment.

I. FACTUAL BACKGROUND

For several years, Appellant lived with his girlfriend and her two
daughters, one of whom is Alison.1 Alison, fifteen years old at the time of the
trial, testified that when she was ten or eleven years old, Appellant blindfolded
her and put his penis in her mouth. She further testified that on a different
occasion, but also while she Was ten or eleven, Appellant blindfolded her and
then anally sodomized her with his penis. Alison’s accusation was not
corroborated by forensic or circumstantial evidence. Appellant denied any

sexual contact With Alison.

ll. ANALYSIS

A. The guardian ad litem’s limited presence during the trial did not
prejudice Appellant’s rights.

Appellant contends that reversible error occurred because Alison’s
guardian ad litem (GAL), Amy Halbrook, was permitted to sit behind the
prosecutor’s table during the trial.2 Halbrook had been appointed by the trial

court as Alison’s GAL after Appellant persuaded the trial court that a GAL to

 

1 We use a pseudonym to protect the anonymity of the alleged victim.

2 To be clear, while the parties refer to the GAL as having sat at the prosecutor’s
table during the trial, our review of the record indicates the GAL was seated before the
bar in the courtroom directly behind the prosecutors who Were seated at the
prosecutor’s table.

represent Alison’s interests as a child-victim was necessary. During the
pretrial proceedings leading up to trial, Halbrook sat directly at the
prosecutor’s table. She also filed a written response opposing Appellant’s
motion to introduce a prior accusation of sexual misconduct allegedly made by
Alison.

At the commencement of the trial, the court introduced the attorneys to
the jury. The trial court told the jury that Halbrook did not represent either
the Commonwealth or the defense, but instead represented Alison.
Throughout the trial, Halbrook sat directly behind the prosecutor’s table. She
did not sit at the prosecutor’s table as she had done in the pretrial proceedings
For all bench conferences during the trial, Halbrook approached the bench-
with the prosecutors and defense counsel. She listened but did not speak.
Halbrook also filed a response on behalf of Alison opposing Appellant’s motion
_for a new trial,

Appellant never voiced any objection to the GAL’s presence in the case.
He concedes that his current complaint about the GAL’s participation was not
preserved for appellate review, but he asserts that error occurred for which he
now seeks palpable error review. y

Under RCr 10.26, we may grant relief for an unpreserved error
when the error is: (1) palpable; (2) affects the substantial rights of a
party; and (3) has caused a manifest injustice. Manifest injustice
requires showing a probability of a different result or error so

' fundamental as to threaten a defendant's entitlement to due
process of law, i.e., the error So seriously affected the fairness,
integrity, or public reputation of the proceeding as to be shocking
or jurisprudentially intolerable.

Spears v. Commonwealth, 448 S.W.3d 781, 791 (Ky. 2014) (internal quotations
and citations omitted).

The Commonwealth argues that any error resulting from the GAL’s
involvement at the trial was invited by Appellant because he is the one who
first insisted that a GAL should be appointed. The Commonwealth relies upon
Thornton v. Commonwealth, 421 S.W.3d 372, 376-377 (Ky. 2013) (Under the
“invited error” doctrine, “[b]ecause Appellant himself proposed the insanity
instruction, Which was ultimately given, his right to appellate review of the
claimed instructional error was relinquished.”).

Appellant’s request for the GAL appointment did not invite the error that
he now attacks on appeal. His complaint is not that the GAL was appointed;
rather, his complaint is directed at the role undertaken by the GAL and
tolerated by the trial court during the trial, Appellant’s acquiescence, even his
insistence, upon the appointment of a GAL cannot fairly be construed as
acquiescence in the conduct of the GAL during the trial, He is not barred by
the doctrine of invited error from seeking palpable error review.

In support of the claim that his trial was fatally tainted by the manner of
the GAL’s participation, Appellant relies upon State»v. Harrison, 24 P.3d 936
(Utah 2001), as persuasive authority. Harrison, however, is easily
distinguishable from this case because the GAL in Harrison did not act in the

relatively passive role at trial that Halbrook did in this case. The GAL in

Harrison sat at counsel table With the prosecutor and actually questioned
witnesses and voiced objections.

The Supreme Court of Utah found considerable fault with the GAL’s
actions in Harn'son, holding as follows:

Permitting the guardian ad litem to sit at counsel table Was error.
To permit the guardian ad litem to sit at counsel table in a criminal
trial and act like a second prosecutor, wearing the cloak of
authority of an employee of the courts, having been appointed by
the trial court to the role, dangerously erodes the defendant's
presumption of innocence. The guardian ad litem’s role does not
extend to this degree of ‘protecting’ the interests of the child by
assisting in the punishment of the alleged perpetrator of the crime
against the child victim.

24 P.3d at 945.

We agree generally with the Utah Court’s denunciation of the zealous
prosecutorial role performed by the GAL in Harn'son whose ward, like Alison,
Was not a party in the case but was instead a witness for the prosecution. A
GAL’s duty to “represent the [child victim’s] interests where needed”3 does not
empower the GAL to assume an active role in the prosecution of the alleged
perpetrator of harm to the child.

Halbrook represented the interests of an individual who Was only a
witness in the case, albeit an important one. For a variety of reasons, many

witnesses in criminal cases have attorneys nearby to protect their interests; the

 

3 KRS 26A. 140(1)(a) provides in pertinent part: “'l`rained guardians ad litem or
special advocates, if available, shall be appointed for all child victims and shall serve
in Circuit and Distn`ct Courts to offer consistency and support to the child and to
represent the child's interests where needed.”

5

appropriate role of the child-victim’s GAL in this situation is the same. We do
not ordinarily permit those attorneys to sit before the bar in the courtroom and
participate in the trial.

We question whether Halbrook should have been seated before the bar
and behind trial counsel and introduced to the jury as if she were a trial
participant, but we cannot say that Appellant’s right to a fair trial was in any
way affected by her conduct during the trial. Halbrook did not sit at counsel
table. She did not make an opening statement or a closing argument, she did
not examine or cross-examine witnesses, and she did not make objections to
evidence during the trial. Her zealous protection of Alison’s interests came
nowhere near the robust prosecutorial role of the GAL in Harrison.

We are satisfied that, despite Halbrook’s presence before the court during
the trial, her relatively passive role before the jury did not prejudice Appellant’s
right to a fair trial. Under the circumstances before us, any error in Halbrook’s
courtroom presence falls well short of creating a “manifest injustice,” the

palpable error standard required to reverse the judgment.

B. The detective’s testimony did not bolster the victim’s credibility.

Detective Bradbury interviewed Appellant as part of his investigation of
Alison’s accusations. He also testified at the trial. Appellant contends that
reversible error occurred when Bradbury’s testimony impermissibly bolstered
Alison’s allegations. Detective Bradbury testified immediately after Alison. The
prosecutor questioned Bradbury about the “Reid Technique” which he uses in

criminal investigations for interrogating suspects. He described the Reid

6

Technique as a “highly effective tool and method . . . for eliciting statements
from suspects.” Bradbury explained further that, pursuant to the Reid
Technique, the first part of the interview was a “behavior analysis” during
which he determined if the suspect is being honest or deceitful.

Appellant objected to that line of questioning and expressed his concern
that Bradbury Would state an opinion, “based upon his training and
experience,” regarding Appellant’s veracity, which is impermissible Ordway v.
Commonwealth, 391 S.W.3d 762, 789 (Ky. 2013) (“With few exceptions, it is
improper to require a witness to comment on the credibility of another witness.
A witness's opinion about the truth of the testimony of another witness is not
permitted.”)(Citations omitted). The trial court confirmed that Bradbury could
not state his opinion on whether anyone had been truthful or not. The
prosecutor agreed, saying, “I promise We are not going there.”

Shortly thereafter, the prosecutor asked Bradbury how many of the child
abuse cases he had investigated led to criminal charges. The relevance of that
information is doubtful and the trial court sustained Appellant’s objection, but
not before Bradbury responded, “Less than half.” Appellant sought no further
relief on this issue. On redirect examination, the following exchange occurred:

Prosecutor: For my own clarification, you said your goal is to get
confessions.

Bradbury: lt is. When we believe something has happened, that is
absolutely our goal.'

Prosecutor: What if you believe it didn’t happen?

Defense Counsel: Objection to his belief, Judge.
Trial Court: What was the question?
Defense Counsel: What do you do if you believe it didn’t happen?

Prosecutor: Is that our sole goal, in conducting interviews and
interrogations?

Bradbury: It is, to get to the truth.

Trial Court: Anything else?

Defense Counsel: That’s not what you said earlier, you said
“confession,” now you said “to get to the truth,”
because after all, he - note the inference - he’s not
telling the truth. You said “confession;” everything
you said was [inaudible] to get a confession.

Bradbury: When the confession’s the truth, yes.

Defense Counsel: I object to his belief, I’m asking that, I think it’s out

of his training

Trial Court: He says the practice is, if he believes something, he wants
to get to that point, I think that’s what he said.

Defense Counsel: Judge . . . .

Trial Court: It’s not an expression on the case,
Defense Counsel: When . . . It’s not?

Trial Court:' Next question.

From the foregoing dialogue, Appellant argues that Bradbury Was
allowed to testify that he believed Alison’s charges against Appellant. We agree

that “[i]t is well-settled that a witness cannot vouch for the truthfulness of

another witness.” Hojf v. Commonwealth, 394 S.W.3d 368, 376 (Ky. 2011)
(citing Stringer, 956 S.W.2d at 288). “It is also well-established that a witness
may not vouch for the credibility of another witness’s out-of-court statements,
including the out-of-court statements of a child alleged to be a victim of a sex
crime.” Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky. 1993) (citing
Hellstrom v. Commonwealth, 825 S.W.2d 612, 614, 617 (Ky. 1992)).

However, the premise of Appellant’s argument is simply not supported by
the record. An examination of transcriptions he cites discloses that Bradbury
did not vouch for the truthfulness of Alison’s testimony or for her out-of-court
statements. He did not characterize any statements or testimony of Appellant
as false. Regardless of whether the objective of Bradbury’s interview was to get
a confession or to get the truth, he never answered the question about what he
did when he did not believe a crime happened as the victim stated. We see
nothing.in Bradbury’s testimony that opines on the credibility of either
Appellant or Alison, and so we remain unpersuaded that Appellant is entitled
to relief on this issue.

C. The trial court’s finding that the prosecutor did not improperly signal
answers to the witness is supported by substantial evidence.

Appellant next contends that he is entitled to a new trial because during
Alison’s cross-examination by defense counsel, the prosecutor coached her
with signals and gestures. A local attorney, Joseph Holbrook, watched part of

the trial and saw defense counsel’s cross-examination of Alison.4 Holbrook

 

4 Holbrook was not directly involved with the case but had collaborated on
cases with defense counsel in the past and had occasionally conferred with defense

9

noticed what he perceived to be signals from the prosecutor to Alison, and
Alison seemingly responding with answers corresponding to the prosecutor’s
signals. Holbrook alerted defense counsel by texting this observation to co-
counsel seated at the defense table. Based upon Holbrook’s message, defense
counsel approached the bench and informed the trial court of the prosecutor’s
actions. The trial court responded, “Let’s not do that [“that” apparently
meaning signal the witness], if it’s happening There can be no reaction.”
Appellant requested no additional relief at that time.

After the verdict, Appellant raised the issue in a motion for a new trial,
and an evidentiary hearing was held. Appellant reiterated the allegation that in
response to some of defense counsel’s questions, Alison averted her gaze to the
prosecutor’s table and that the prosecutor responded with a head nod or
gesture to prompt Alison’s answer. Holbrook’s affidavit, attached to the
motion, stated in part:

lt appears as though the Prosecutor telegraphed answers and / or
responses to the alleged victim during this line of questioning
because: (1) the alleged victim hesitated in answering the
questions; (2) she would then look at the Prosecutor Shaking her
head; and (3) then she responded to the question.

Holbrook testified at the hearing on the motion, He said that three times

he saw the prosecutor signal Alison with a head shake or nod, and each time

 

counsel about jury instructions, and had done so in this case. He further testified
that his relationship with defense counsel did not influence his testimony.

10

Alison responded with an answer conforming to the head shake. Holbrook
noted that defense counsel conducting the cross-examination had her back to
the prosecutor and so was unaware of the gestures until he alerted Appellant’s
co-counsel.

Appellant’s brother, Sylvester Golden, also attended the trial, sitting in
the second row. He saw the prosecutor nod or shake her head to indicate “yes”
or “no” in response to defense counsel’s questioning of Alison. For example,
Sylvester testified that when defense counsel asked Alison if she had reviewed
her earlier statements to the police, Alison hesitated and looked toward the
prosecutor. The prosecutor shook her head, signifying “no.” Sylvester testified
that while Alison was under cross-examination, the prosecutor was writing,
clicking her pen, and shaking her head.

The prosecutor denied that she had signaled responses to the victim.
She said that while her Witnesses are being cross-examined, she generally tries
to look at the defense counsel and take notes for her redirect-examination. She
said she did not recall shaking her head, but if she did, it would have been an
involuntary movement and not a signal to Alison. With no elaboration or
detailed findings of fact, the trial court denied Appellant’s motion for a new
trial, concluding simply that it had “no merit."

Of course, it should go without saying that no one in the courtroom
during a trial, especially the attorneys trying the case, may signal or otherwise
communicate answers to a testifying Witness, whether it be for the purpose of

guiding the testimony or lending encouragement and moral support. Sharp v.

ll

Commonwealth, 849 S.W.2d 542, 546-547 (Ky. 1983) (A mistrial was required
as a result of a bystander’s gestures to a child witness and the communication
of the substance of some testimony from the courtroom to one or more of the
separated witnesses; a witness may not receive encouragement, approval, and
comfort at the time her credibility is being assessed by the jury). ln light of a
prosecutor’s additional ethical duties to seek justice and assure that a
defendant receives a fair trial, it is highly improper for a prosecutor to engage
in such conduct.5 lf that did occur, the failure of the trial court to address the
issue and cure any resulting prejudice would be a significant error in the
proceedings.

Our review is hampered by the lack of detailed findings of fact concerning
this issue. The trial court’s conclusion that Appellant’s concern had “no merit”
unmistakably implies a finding that the improper communication to the
witness did not occur. Presumably, if such signaling occurred, then the issue
would obviously have had “merit” even if it was ultimately found to be
harmless. Accordingly, we construe the ambiguous record as a finding of the
trial court that signaling did not occur. We will disturb a trial court’s finding of
fact only if it is clearly erroneous; a finding is clearly erroneous when it not
supported by substantial evidence. CR 52.01. Regardless of how it appeared

to Holbrook and Sylvester Golden, the prosecutor unequivocally denied

 

5 SCR 3.130(3.8] comment (1): “A prosecutor has the responsibility of a minister
of justice and not simply that of an advocate. This responsibility carries with it
specific obligations to see that the defendant 1s accorded procedural justice and that
guilt rs decided upon the basis of sufficient evidence.”

12

signaling to the witness. That testimony is sufficient to support the trial
court’s implied finding that no signaling occurred, We therefore affirm the trial

court’s holding on this issue.

D. The newly-discovered diary entry did not warrant a new trial.

Appellant argues that the trial court erred by failing to grant his motion
for a new trial based upon the post-trial discovery of exculpatory evidence,
specifically, a page allegedly torn from Alison’s diary. The diary page was
ostensibly written some three months after Appellant’s trial. The diary entry,
v apparently in Alison’s handwriting, states the following:

l can’t believe my mom asked me to get [Appellant] out of jail. I’m
glad he’s in jail, l hate him. l-le took my father and mother away. I
feel like they both have to pay for what’s happened to me and my
sisters and l did it. He’s in jail and my mom can’t see him no more
and they can’t keep me from Josh, so I think it’s good this way
even if he didn’t do shit.

The Commonwealth challenged the authenticity of the diary page. To
establish its authenticity, the detached page was sent with the rest of the diary
to the FBI laboratory in Quantico, Virginia, for handwriting analysis. The
results of that analysis are not included in the record; nor is the diary or the
detached page.

Appellant’s motion asserted that this newly-discovered diary entry is
evidence revealing Alison’s motive for falsely accusing Appellant. Appellant

points out that the principal weakness in his defense at trial was his inability

13

to establish Alison’s motive to lie. The diary entry, he contends, cured that
deficiency, casting light on the family’s dynamics and Alison’s motive to lie.

The trial court side-stepped the question concerning the authenticity of
the entry, and instead denied Appellant’s motion upon the grounds that, even if
genuine, the diary entry did not exculpate Appellant by revealing a motive for
Alison to lie about him. The trial court found that Alison’s resentment toward
her mother and Appellant was known before the trial, and that her apparent
statements that she was “glad [Appellant] is in jail, I hate him” and “He’s in jail
and my mom can’t see him no more and they can’t keep me from Josh, so I
think it’s good this way even if he didn’t do shit” were not exculpatory.

A new trial can be granted “for any cause which prevented the defendant
from having a fair trial, or if required in the interest of justice.” RCr 10.02(1).
“[W]hether to grant the motion for a new trial is always within the trial court’s
sound discretion and is entitled to a great deal of deference by an appellate
court.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010). “[F]or newly
discovered evidence to support a motion for new trial it must be of such
decisive Value or force that it would, with reasonable certainty, have changed
the verdict or that it would probably change the result if a new trial should be
granted.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (internal
quotations and citations omitted).

Appellant construes the diary statement that “even if he dident [sic] do
shit I am glad he is in jail,” as Alison’s admission that Appellant did not

sodomize her and that she had fabricated the charges. The trial court read it

14

differently. The alternative interpretation adopted by the trial court was that
Alison hated Appellant because he broke up her parents, and that even if he
had not sexually abused her, she Would still be glad he is in jail, ln light of this
equally plausible interpretation of the newly discovered diary entry, the
evidence is not “evidence of such decisive value or force that it would with
reasonable certainty, change the verdict or that it would probably change the
result if a new trial should be granted.” Accordingly, the trial court did not

abuse its discretion in denying Appellant a new trial based upon this issue.

E. The prosecutor’s “send a message” argument was harmless error.

Appellant contends that he was denied a fair penalty phase trial because
the prosecutor urged the jury to impose a harsh sentence as a message of
support for the child-victim. Specifically, the following occurred in his penalty

phase closing arguments:

Prosecutor: l believe these were two separate acts; l believe the time
should run consecutively. l believe he deserves 25 years
for each of them for a maximum of 50 years. His parole
eligibility will be 20. And that will send a message to that
child. . . .

Defense Counsel: Objection.

Trial Court: Overruled.

At a later bench conference, defense counsel argued that the prosecutor
impermissibly made a “send a message argument.” The trial court rejected the

argument by distinguishing the prosecutor’s comment to “send a message to

15

the victim” from the long line of cases condemning arguments that “send a
message to the community.”

Appellant correctly notes that we have condemned the use of “send a
message to the community” arguments based upon the concern that such
arguments might encourage a jury to render a guilty verdict simply “to satisfy
the community expectation.” Ordway, 391 S.W.3d at 797.

ln Cantrell v. Commonwealth, We reaffirmed our condemnation of the use
of a “closing argument to shame jurors or attempt to put community pressure
on jurors’ decisions.” But we also recognized that in the penalty phase, a
prosecutor could properly present an argument narrowly channeled to
encourage the jury to “send a message” to the defendant and others in the
community inclined toward similar criminal behavior. Such an argument is
proper because deterrence is an important objective of criminal sentencing
288 S.W.3d 291, 299 (Ky. 2009).

We find no similar justification for the argument that a jury should use
its sentencing authority to “send a message to the victim.” Our decisions have
made clear the impropriety of closing arguments that “urge[] the jury to
consider public opinion” and “correspondingly appl[y] pressure on the jury to
satisfy the community expectation.” Ordway, 391 S.W.3d at 797. Urging the
jury to fix a sentence that pleases the victim, vindicates her accusations, or
satisfies her perceived plea for justice, is very much akin to the impermissible
arguments for sending similar messages to the community at large. Urging the

jury to “send a message,” apparently of solidarity and support, to the victim is

16

essentially the same as shaming or pressuring the jury to impose a severe
sentence to assuage the feelings of a sympathetic child victim. This type of
argument remains prohibited under Cantrell and Ordway.

Jurors should be encouraged to be detached and dispassionate arbiters
of the facts derived from the evidence, dispensing justice without favor or
sympathy. Encouraging the jury to “send a message to the victim” is rhetoric
that invites the jury to step outside its proper role. The jury’s purpose is not to
“send a message” to the victim and it is not proper for the prosecutor to urge
the jurors to do so.

As explained in Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky.
2010), “preserved evidentiary and other non-constitutional errors will be
deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S. 750
' (1946), if we can say with fair assurance that the judgment was not
substantially swayed by the error.” Accord Winstead v. Commonwealth, 283
S.W.3d 678, 689 (Ky. 2009); Ordway 391 S.W.3d 774 (Ky. 2013). Upon review
of the specific comment at issue in context with the entire closing argument,
we are satisfied that the prosecutor’s brief and passing comment could not
have substantially swayed the sentencing verdict, and thus we find the error to

be harmless.

F. Reversal is not required due to cumulative error.

Finally, Appellant requests that we overturn his convictions on the
grounds of cumulative error. See Funk v. Commonwealth, 842 S.W.2d 476,

483 (Ky. 1992) (stating that “the cumulative effect of the prejudice” from

17

multiple harmless errors can require reversal). This doctrine recognizes that
“multiple errors, although harmless individually, may be deemed reversible if
their cumulative effect is to render the trial fundamentally unfair.” Brown v.
Commonwealth7 313 S.W.3d 577, 631 (Ky. 2010). As described above,
Appellant’s trial was not error free; nevertheless, we are persuaded that the
errors that occurred considered individually and in their cumulative effect did
not render the trial fundamentally unfair. Accordingly, Appellant is not

entitled to relief under the cumulative error doctrine.

III. CONCLUSION
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:
Erin Hoffman Yang

Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Leilani K.M. Martin
Assistant Attorney General

18

