Epionn J. Lee-Mccampbell v. Commonwealth of Kentucky ( 2023 )

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RENDERED: MARCH 23, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0424-MR
EPIONN J. LEE-MCCAMPBELL APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V. HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE
NO. 18-CR-00660
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Epionn J. Lee-McCampbell appeals as a matter of right1 from the
judgment of the McCracken Circuit Court convicting him of first-degree
manslaughter and fourth-degree fetal homicide. He was sentenced to twenty-
five years’ imprisonment. Lee-McCampbell raises four unpreserved claims of
error: (1) there was insufficient evidence to support the conviction for fetal
homicide; (2) the prosecutor committed misconduct during the opening
statement by making three false statements regarding anticipated evidence; (3)
the prosecutor misled the jury by eliciting testimony from a lay witness that
contradicted the testimony of an expert witness; and (4) the trial court
1 Ky. Const. § 110(2)(b)
improperly admitted evidence of prior bad acts. None of these contentions
merit reversal. Accordingly, we affirm the judgment of conviction and sentence.
Lee-McCampbell and the victim, Ja’Lynn Ragsdale, were dating. Their
relationship was plagued by discord and abuse. On March 1, 2018, after
working the night shift at McDonald’s, Ragsdale went to the residence of Lee-
McCampbell’s mother. Lee-McCampbell and Ragsdale slept until the
afternoon. Around 2:32 p.m., Lee-McCampbell called emergency services to
report that Ragsdale was not breathing.
Paducah Firefighter Kurt Hanson responded first to the scene. Hanson
performed chest compressions and inserted a device into Ragsdale’s mouth to
prevent her tongue from blocking her airway. Hanson noticed dried blood in
Ragsdale’s nostrils and blood in her airway. When Paramedic Justin Dinovo
arrived, he discovered Ragsdale’s heart was not beating. Dinovo administered
epinephrine to revive her. He intubated Ragsdale and also noticed dried blood
in her nostrils and blood in her airway. The paramedics transported Ragsdale
to Western Baptist Hospital.
Dr. Ben Thompson treated Ragsdale at the hospital. Ragsdale was
unresponsive and placed on a mechanical ventilator. Dr. Thompson observed
that Ragsdale had suffered a significant brain injury. He did not believe
Ragsdale had experienced a stroke, heart attack, or lung issue, which could
have explained her condition. Laboratory testing revealed Ragsdale had
elevated levels of human chorionic gonadotropin (HCG), which indicated she
was pregnant. Dr. Thompson consulted with neurologist, Dr. Joseph Ashburn,
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and cardiologist, Dr. Martin Raines. Dr. Ashburn confirmed Ragsdale did not
experience a stroke or other medical event, which would have explained
Ragsdale’s condition. Dr. Raines confirmed Ragsdale did not experience a
heart attack. Ragsdale’s condition continued to deteriorate to the point where
it was certain she would perish.
Dr. Ashburn confirmed that Ragsdale was brain-dead. Ragsdale was
removed from life-support and was pronounced dead on March 4, 2018. Chief
Deputy McCracken County Coroner Ben Bradford listed the cause of death as
asphyxia due to suffocation and the manner of death as homicide. Chief
Deputy Bradford recommended an autopsy be performed.
Dr. Christopher Kiefer performed the autopsy. Dr. Kiefer determined
Ragsdale’s death was caused by asphyxia due to suffocation. He concluded
Ragsdale was deprived of oxygen due to an object being placed over her mouth.
Dr. Kiefer also observed a nodule on Ragsdale’s uterus, which indicated the
early stages of pregnancy.
Lee-McCampbell made several statements to police about the
circumstances leading to Ragsdale’s death. Lee-McCampbell’s essential story
was that he and Ragsdale were play wrestling in bed when they tumbled onto
the floor. When they hit the floor, Ragsdale was face down with Lee-
McCampbell on top of her, holding her arm behind her back. When asked why
he did not get off Ragsdale when she twice said she could not breathe, Lee-
McCampbell stated he thought Ragsdale’s pleas were a ruse to get the upper
hand in the wrestling match. Lee-McCampbell also stated he did not know
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how Ragsdale’s hooded sweatshirt had been pulled up to cover her nose and
mouth. Lee-McCampbell denied intending to hurt Ragsdale, but later told
police that he took responsibility for her death.
Lee-McCampbell described his relationship with Ragsdale at length to
police. He stated he and Ragsdale were trying to have a baby and he suspected
Ragsdale may have been pregnant because she was showing early physical and
emotional signs of pregnancy, which he recognized because Ragsdale had
previously been pregnant. Lee-McCampbell recounted the tension in the
relationship caused by mutual infidelities. Lee-McCampbell admitted to
choking Ragsdale on two prior occasions. Lee-McCampbell also admitted to
headbutting Ragsdale with such force that she required treatment at the
emergency room. This incident occurred less than one month before
Ragsdale’s death. Additional investigation by police uncovered further
incidents of abuse.
A McCracken County grand jury indicted Lee-McCampbell for murder
and third-degree fetal homicide. Following a four-day trial, the petit jury found
Lee-McCampbell guilty of first-degree manslaughter and fourth-degree fetal
homicide. The trial court entered a judgment of conviction and sentenced Lee-
McCampbell to a total of twenty-five years’ imprisonment. This appeal
followed.
For his first contention of error, Lee-McCampbell argues he was entitled
to a directed verdict on the charge of fetal homicide. Specifically, he asserts the
Commonwealth failed to prove Ragsdale was carrying an unborn child. Lee-
4
McCampbell concedes this argument was not properly preserved for appellate
review and requests palpable error review under RCr2 10.26, which provides:
A palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.
A palpable error is “easily perceptible, plain, obvious, and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To demonstrate
manifest injustice, a party must show the “probability of a different result or
error so fundamental as to threaten a defendant’s entitlement to due process of
law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). In other words, a
palpable error occurs where “the defect in the proceeding was shocking or
jurisprudentially intolerable.” Id. at 4. The failure to grant a directed verdict
based on the insufficiency of evidence amounts to palpable error because “it is
clear that a different result would occur, since a defendant convicted on
insufficient proof should be acquitted.” Commonwealth v. Goss, 428 S.W.3d
619, 627 (Ky. 2014). A conviction based on insufficient evidence necessarily
results in manifest injustice. Id.A trial court’s failure to grant a directed verdict should not be reversed
unless the appellate court determines “it would be clearly unreasonable for a
jury to find guilt.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
When confronted with a motion for directed verdict, the trial court must
2 Kentucky Rules of Criminal Procedure.
5
assume the truth of the Commonwealth’s evidence and “draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth.” Id. A
conviction must be based on “evidence of substance, and the trial court is
expressly authorized to direct a verdict for the defendant if the prosecution
produces no more than a mere scintilla of evidence.” Id. at 188.
Purely circumstantial evidence may support a conviction if, “based on the
whole case, it would not be clearly unreasonable for a jury to find guilt beyond
a reasonable doubt.” Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky.
2000). The Commonwealth is not required to “rule out every hypothesis except
guilt beyond a reasonable doubt.” Rogers v. Commonwealth, 315 S.W.3d 303,
311 (Ky. 2010) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). In
other words, “the question on a directed verdict motion is not necessarily what
evidence supporting the defendant was solicited, but rather what evidence the
Commonwealth produced in support of its burden of proof.” Sutton v.
Commonwealth, 627 S.W.3d 836, 848 (Ky. 2021).
KRS3 507A.050(1) states “[a] person is guilty of fetal homicide in the
fourth degree when, with recklessness, he causes the death of an unborn
child.” KRS 507A.010(1)(c) defines “unborn child” as “a member of the species
homo sapiens in utero from conception onward, without regard to age, health,
or condition of dependency.” Fourth-degree fetal homicide “involves the death
of an unborn child under the same circumstances as the current law for
3 Kentucky Revised Statutes.
6
reckless homicide.” Leslie W. Abramson, Kentucky Practice Series, Substantive
Criminal Law, § 4:12 (2022). For the purposes of the Kentucky Penal Code, “[a]
person acts recklessly with respect to a result or to a circumstance described
by a statute defining an offense when he fails to perceive a substantial and
unjustifiable risk that the result will occur or that the circumstance exists.”
KRS 501.020(4).
In the context of fetal homicide, the existence of an unborn child is
determined in reference to the time of conception. KRS 507A.010(1)(c).
However, KRS 507A.010 does not define the word “conception.” When
construing a statute, a court’s overarching duty is to effectuate the intention of
the legislature. KRS 446.080(1). The words in a statute are to be interpreted
“according to the common and approved usage of language,” except for
technical words, which are interpreted according to their “peculiar and
appropriate meaning in the law.” KRS 446.080(4). In Kentucky, the statutory
definition of a term, “wherever it may appear in the statutes,” controls
elsewhere unless the context or statutory language directs otherwise. Camera
Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 42 (Ky. 2000).
Kentucky’s fetal heartbeat statute defines “conception” as “fertilization.”
KRS 311.7701(1). “Fertilization” means “the fusion of a human spermatozoon
with a human ovum.” KRS 311.7701(3); KRS 311.781(1). These definitions
track the ordinary, legal, and medical understanding of the word “conception.”
Generally, conception means “the process of becoming pregnant involving
fertilization or implantation or both.” Conception, Merriam-Webster’s Collegiate
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Dictionary (11th ed. 2014). Legally, conception has also been defined as “[t]he
impregnation of an ovum; the onset of pregnancy.” Conception, Black’s Law
Dictionary (11th ed. 2019). Stated otherwise, the term is legally defined to
mean the “[f]ertilization of the female ovum by the male germ cell.” Conception,
Ballentine’s Law Dictionary (3rd Edition), p. 237 (citing Am. Jur. Proof of Facts,
Medical Glossary). Medically, conception is defined as “[f]ertilization of ooccyte
by a sperm.” Conception, Stedman’s Medical Dictionary (28th ed. 2006). We
interpret the word “conception,” as used in KRS 507A.010(1)(c), to mean
fertilization, which is synonymous with the onset of pregnancy.
The Commonwealth produced sufficient evidence of conception. Dr.
Thompson testified Ragsdale’s initial HCG hormone levels suggested the onset
of early pregnancy. He further testified that Ragsdale’s HCG levels were
trending upwards, which also indicated pregnancy. However, Dr. Thompson
acknowledged it was very early in Ragsdale’s pregnancy and she may not have
known she was pregnant. Dr. Ashburn also testified HCG levels climb when a
person is pregnant and Ragsdale’s levels were rising. Dr. Kiefer testified he
observed a nodule on Ragsdale’s uterus, which indicated the early stages of
pregnancy. Although Dr. Kiefer could not definitively state whether Ragsdale
was pregnant, he had no other explanation for the presence of the nodule.
Beyond the Commonwealth’s evidence, Lee-McCampbell’s own expert,
Dr. George R. Nichols, II, agreed Ragsdale was pregnant “according to the
laboratory analysis.” Dr. Nichols also acknowledged his prior testimony at a
sworn deposition where he stated Ragsdale was pregnant. Additionally, Lee-
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McCampbell testified he and Ragsdale were trying to have a baby together.
Lee-McCampbell told Detective Blake Quinn that he suspected Ragsdale was
pregnant because she was more emotional and her breasts and stomach had
grown larger. Lee-McCampbell stated he was familiar with how Ragsdale acted
when she was pregnant because she had been pregnant before.
Lee-McCampbell argues HCG evidence is not proof of fertilization. He
has inappropriately cited to various medical studies and publications, which
are not included in the record. We have specifically disapproved of this
practice:
Appellants’ Brief is replete with citations to so-called “scientific
studies” regarding the effectiveness of seat belts as safety devices.
These studies were not introduced at the trial level and would not
qualify as admissible evidence absent testimony as to their
scientific authenticity and reliability from a credible source.
Certainly our Court is not prepared to take judicial notice of the
authenticity and reliability of the publications referred to in the
Brief. For instance, appellants’ brief refers to a “front page article
in the Wall Street Journal.” This was inappropriate in the brief
and would be improper at trial. We disapprove of those references
in the Brief to any material which was not introduced as evidence
in the trial court, and point out that such material will not be
admissible in the trial court unless first appropriately
authenticated as a scientifically reliable source. We have
disregarded this material in the Appellants’ Brief in making our
decision.
Wemyss v. Coleman, 729 S.W.2d 174, 179-80 (Ky. 1987). We also acknowledge
the Commonwealth inappropriately cited to medical literature that was not
presented to the trial court in an attempt to bolster Lee-McCampbell’s
testimony that he suspected Ragsdale was pregnant. As a reviewing court, we
will not consider matters outside the record. This rule applies equally to both
parties.
9
Moreover, Kentucky law does not require a criminal conviction to be
supported with the degree of scientific certainty urged by Lee-McCampbell.
Under the reasonable doubt standard, “that which a jury may reasonably
believe to have been probable is enough to support a finding of guilt.” Timmons
v. Commonwealth, 555 S.W.2d 234, 238 (Ky. 1977). Further, Lee-
McCampbell’s attacks on the testimony of Dr. Thompson and Dr. Ashburn
implicate assessments of the weight and credibility of evidence, which are
uniquely within the province of the jury. Ross v. Commonwealth, 531 S.W.3d
471, 477 (Ky. 2017).
Viewing the totality of the evidence in the light most favorable to the
Commonwealth, we cannot conclude it was clearly unreasonable for the jury to
find conception had occurred. An appellate court is not authorized to
substitute its view of the evidence for that of the jury. Timmons, 555 S.W.2d at
238. Therefore, there was sufficient evidence that Lee-McCampbell recklessly
caused the death of an unborn child.
For his second contention of error, Lee-McCampbell argues the
prosecutor committed misconduct during the opening statement by making
three false statements regarding anticipated evidence. As this issue is
unpreserved, Lee-McCampbell again requests palpable error review. The
prosecutor’s statements did not amount to flagrant misconduct.
In making its opening statement, the Commonwealth may state all the
facts and circumstances which it expects in good faith to be established by the
evidence. Freeman v. Commonwealth, 425 S.W.2d 575, 578 (Ky. 1967). It is
10
improper for the Commonwealth to state facts in an opening statement which it
does not reasonably expect to prove from the evidence at trial. Turner v.
Commonwealth, 240 S.W.2d 80, 81 (Ky. 1951). However, both the prosecutor
and defense counsel are given wide latitude during opening and closing
arguments because argument is not evidence. Slaughter v. Commonwealth,
744 S.W.2d 407, 412 (Ky. 1987).
When a defendant fails to make a contemporaneous objection to alleged
prosecutorial misconduct, we will only reverse if flagrant misconduct rendered
the entire trial fundamentally unfair. Dickerson v. Commonwealth, 485 S.W.3d
310, 329 (Ky. 2016). To determine whether improper comments amount to
flagrant prosecutorial misconduct, we must examine: “(1) whether the remarks
tended to mislead the jury or to prejudice the accused; (2) whether they were
isolated or extensive; (3) whether they were deliberately or accidentally placed
before the jury; and (4) the strength of the evidence against the accused.” Id.(quoting Mayo v. Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010)).
Regarding the first alleged misstatement, Lee-McCampbell argues he was
prejudiced by the prosecutor’s erroneous statement that Dr. Kiefer would
testify he had confirmed Ragsdale’s pregnancy through the observation of a
fertilized egg. The prosecutor stated:
Then I’m going to call Dr. Chris Kiefer. He is the state medical
examiner. He works out of Madisonville. He conducted the
autopsy. He will tell you about performing that autopsy . . . and he
is going to tell you in no uncertain terms that Ja’Lynn was killed
by asphyxiation, through suffocation, and that this was a
homicide. He also saw a fertilized egg confirming that she was
pregnant.
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While Dr. Kiefer did not specifically testify that he observed a fertilized
egg, he did testify that he observed a “nodule” on Ragsdale’s uterus, which
indicated she was pregnant. Dr. Kiefer was also subject to cross-examination
on this topic and admitted he could not definitively state Ragsdale was
pregnant. However, Lee-McCampbell’s own expert, Dr. Nichols also testified
Ragsdale was pregnant. Lee-McCampbell further admits the prosecutor’s
reference to a fertilized egg was an isolated remark. That the prosecutor’s
remark was isolated tends to diminish any possibility of bad faith or deliberate
deception. While the conviction for fetal homicide was largely based on
circumstantial evidence, given the evidence as a whole, we cannot conclude the
prosecutor’s comment amounted to flagrant misconduct. The error, if any, was
harmless.
Regarding the second alleged misstatement, Lee-McCampbell argues he
was prejudiced by the prosecutor’s erroneous statement that Autumn Stefanick
would testify Lee-McCampbell had choked Ragsdale on several prior occasions.
Regarding the prior choking incidents, the prosecutor stated:
I’m going to call to Autumn Stefanick, a friend of Ja’Lynn’s, who is
going to testify that she was present on February 18th, less than two
months before Epionn killed Ja’Lynn, and that she called the police
in an attempt to stop him from being violent with her. She’ll testify
that she’s personally witnessed the defendant choke Ja’Lynn on
several occasions.
Stefanick did not testify she witnessed Lee-McCampbell choke Ragsdale on
several occasions. Stefanick testified concerning a single altercation between
Lee-McCampbell and Ragsdale where Lee-McCampbell had violently pinned
Ragsdale to the floor. Stefanick was subject to cross-examination. Another
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witness, Ardajaha Clark, testified she witnessed Lee-McCampbell wrap his
arms around Ragsdale’s neck hard enough that Ragsdale said she could not
breathe. Lee-McCampbell himself admitted on direct examination that he had
previously choked Ragsdale on two occasions. He admitted having multiple
violent arguments with Ragsdale. The remark regarding Stefanick’s expected
testimony was isolated and we do not discern any bad faith on the part of the
prosecutor. Given the evidence as a whole, including Lee-McCampbell’s own
admissions, we cannot conclude the Commonwealth’s failure to elicit the
anticipated evidence from Stefanick amounted to flagrant misconduct.
Regarding the third alleged misstatement, Lee-McCampbell argues the
prosecutor committed flagrant misconduct by stating that Ragsdale’s sister,
Erica Leggs, would testify she witnessed Lee-McCampbell punch Ragsdale. The
prosecutor did not call Leggs to the stand during the guilt phase, although
Leggs did testify during the penalty phase. Lee-McCampbell has failed to
demonstrate the prosecutor acted in bad faith by failing to call Leggs to the
stand. Lee-McCampbell could have mitigated any possible prejudice during
closing argument by indicating the Commonwealth failed to produce the
evidence described in its opening statement. We cannot conclude the
prosecutor committed flagrant misconduct.
For his third allegation of error, Lee-McCampbell argues the
Commonwealth unfairly misled the jury by eliciting testimony from a lay
witness that contradicted the testimony of an expert witness. Lee-McCampbell
asserts the Commonwealth unfairly placed the jury in a situation where it
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would be forced to believe a police officer over a medical doctor. As this
argument is unpreserved, we will again review for palpable error.
Sergeant Travis Watson testified he observed petechiae in Ragsdale’s
eyes. Petechiae is the plural form of petechia, which means “a minute reddish
or purplish spot containing blood that appears in skin or mucous membrane
as a result of localized hemorrhage.” Petechia, Webster’s Third New
International Dictionary Unabridged (1993). However, Dr. Kiefer, the medical
examiner, testified that he did not observe any petechiae on Ragsdale’s body.
Lee-McCampbell does not claim Sgt. Watson’s testimony about petechiae
was inadmissible. He simply speculates about the weight and credibility the
jury assigned to this evidence. It is well-established that “a jury is free to
believe the testimony of one witness over the testimony of others.” Minter v.
Commonwealth, 415 S.W.3d 614, 618 (Ky. 2013). When a jury is presented
with competent evidence, we “will not invade the jury’s province to weigh
conflicting evidence, judge the credibility of witnesses and draw the ultimate
conclusion.” Clark v. Commonwealth, 567 S.W.3d 565, 569-70 (Ky. 2019). We
cannot discern any error concerning the conflicting evidence, much less
palpable error.
For his fourth contention of error, Lee-McCampbell argues the trial court
erred by allowing improper evidence of prior bad acts. He asserts this
argument is “partially preserved,” because he made “a blanket objection to
relevance and that the probative value was outweighed by prejudice.” Upon
review of the record, we conclude the alleged error was not properly preserved.
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Prior to trial, the Commonwealth provided Lee-McCampbell notice of its
intent to produce evidence of multiple prior incidents of abuse that Lee-
McCampbell had inflicted upon Ragsdale. Pertinent to the present appeal, the
Commonwealth stated that it would present evidence that Lee-McCampbell had
pulled a gun on Ragsdale and some of her friends on December 29, 2017, less
than three months before Ragsdale’s death. Lee-McCampbell filed a response
objecting to the introduction of any evidence of prior bad acts. However, Lee-
McCampbell did not specifically address the gun incident at the hearing on the
motion in limine or otherwise object to the introduction of the evidence at trial.
A generic objection to any evidence of prior bad acts is insufficient to preserve
an error for review. Lanham v. Commonwealth, 171 S.W.3d 14, 21 (Ky. 2005).
Nevertheless, we will review for palpable error as alternatively requested by
Lee-McCampbell.
While evidence of prior bad acts is generally inadmissible to prove a
defendant’s criminal predisposition, KRE 404(b) “specifically provides for the
admission of prior bad act evidence to show the absence of an accident.” Driver
v. Commonwealth, 361 S.W.3d 877, 885 (Ky. 2012). In Driver, the defendant
brutally beat and attempted to strangle his wife with a belt. At trial, the wife
attempted to minimize the defendant’s culpability and testified that most of her
physical injuries were the result of yard work and “wrestling.” The
Commonwealth was permitted to introduce, over the defendant’s objection,
evidence the defendant had previously threatened his wife with a knife and
committed other acts of abuse. The defendant was ultimately convicted of first-
15
degree assault. This Court recognized that evidence of prior abuse and threats
by the defendant against the victim is generally relevant and admissible “to
prove the absence of accident or mistake when he subsequently killed her.” Id.(quoting Moseley v. Commonwealth, 960 S.W.2d 460, 461 (Ky. 1997)). In such
circumstances, neither the temporal remoteness of the prior abuse nor
differences in the method of abuse necessarily negate the relevance and
admissibility of the evidence. Id.Lee-McCampbell’s theory of the case was that Ragsdale’s death was
caused by accident while they were “play wrestling.” Under Driver, evidence
that Lee-McCampbell previously threatened Ragsdale with a gun is admissible
to prove the absence of an accident. Id. at 885. In the present appeal, the
prior threat occurred close in time to Ragsdale’s death. Although Lee-
McCampbell was not charged with the use of a gun in connection with
Ragsdale’s death, the admissibility of evidence to prove the absence of accident
does not depend on substantial similarity. Lee-McCampbell further argues the
testimony concerning the gun incident was not corroborated by any other
evidence. However, we discern no requirement that evidence under KRE 404(b)
requires independent corroboration. The admission of this evidence did not
amount to palpable error.
For his fifth and final contention of error, Lee-McCampbell argues that
his conviction should be reversed because of cumulative error. We disagree.
Cumulative error is “the doctrine under which multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
16
render the trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d
577, 631 (Ky. 2010). The only possible error we identified was the unpreserved
allegation of prosecutorial misconduct where the prosecutor referenced
evidence of a fertilized egg during the opening statement, which was not
produced at trial. However, given the totality of the evidence, the statement did
not rise to the level of prejudice required to find palpable error. In the absence
of a single instance of prejudicial error, we cannot find cumulative error
warranting reversal. Id.For the foregoing reasons, the judgment of the McCracken Circuit Court
is affirmed.
All sitting. VanMeter, C.J.; Conley, Lambert, Nickell, JJ., concur. Bisig,
Keller, Thompson, JJ., concur in result only.
COUNSEL FOR APPELLANT:
Jennifer Wade
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Michael R. Wadja
Assistant Attorney General
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