Darryl Keith Baker v. Commonwealth of Kentucky

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0538-MR
DARRYL KEITH BAKER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY A. VANMETER, JUDGE
ACTION NO. 18-CR-00637
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.
JONES, JUDGE: Darryl Keith Baker appeals from the Fayette Circuit Court’s
final judgment and sentence of imprisonment entered on March 13, 2019. At his
jury trial, aside from a number of misdemeanor convictions, Baker was also
convicted of third-degree assault. He was sentenced to two-years’ imprisonment
on that charge, which was enhanced to fifteen years by being a first-degree
persistent felony offender (PFO). After careful consideration, we reverse and
remand for a new trial based on the trial court’s erroneous application of Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) and its progeny.
I. Background
During the late evening hours of March 27, 2018, police officers were
investigating an automobile parked outside the Day’s Motel on Versailles Road in
Lexington. Police officers later described the Day’s Motel as being in a “high call
volume” area. Baker, a homeless black man, occupied the front passenger seat of
the vehicle. While the officers were questioning Baker, they repeatedly directed
him to keep his hands in view, because Baker kept placing his hands inside his
jacket. The officers asked Baker for permission to search the vehicle. Baker
declined, stating the vehicle did not belong to him and he only had the owner’s
permission to stay there.
After declining to give permission to search, Baker once again hid his
hands, this time dropping them below the seat. To ensure Baker was not reaching
for a weapon, an officer opened the door of the vehicle. When the door opened,
Baker became aggressive, jumping out of the vehicle with his fists clenched and
growling at the officers. At this point, the officers intended to arrest Baker for
-2-
menacing1 and ordered him to get on the ground. When Baker did not comply,
Officer David Smith of the Lexington Police Department tried to restrain Baker by
grasping his right arm in order to handcuff him. Baker responded by punching
Officer Smith several times, causing injuries to the officer’s chin, left eye, and
finger. After subduing Baker, the officers searched the vehicle and found a
narcotics pipe and a used syringe.
Following Baker’s arrest, the Fayette County grand jury indicted him
on multiple charges stemming from the incident: third-degree assault,2 resisting
arrest,3 possession of drug paraphernalia,4 and menacing.5 The grand jury later
added a charge of being a first-degree persistent felony offender (PFO)6 to Baker’s
indictment. The Fayette Circuit Court held Baker’s jury trial on November 13,
2018.7 The Commonwealth presented testimony from several Lexington police
1
“Menacing” is defined in Kentucky Revised Statute (KRS) 508.050 as “intentionally plac[ing]
another person in reasonable apprehension of imminent physical injury.”
2
KRS 508.025(1)(a), a Class D felony.
3
KRS 520.090, a Class A misdemeanor.
4
KRS 218A.500(2), a Class A misdemeanor.
5
KRS 508.050, a Class B misdemeanor.
6
KRS 532.080.
7
These proceedings in Fayette Circuit Court involved three separate judges. Judge John
Reynolds conducted the guilt phase of Baker’s trial, but he left during jury deliberation in order
to attend to other matters. Judge Kimberly Bunnell presided when the jury returned its verdict.
-3-
officers, including Officer Smith, conforming to the above narrative. The
Commonwealth also introduced body camera video footage of the incident. Baker
did not present witnesses or other evidence in his defense.
After deliberation, the jury found Baker guilty on all counts in the
indictment and recommended a sentence of two years on the third-degree assault
charge, enhanced to fifteen years by virtue of the PFO. For the remaining
misdemeanor charges, the jury recommended a sentence of thirty-days’
incarceration on each count. The trial court entered its final judgment on March
13, 2019, sentencing Baker in accordance with the jury’s recommendation. This
appeal followed.
II. Analysis
Baker presents three arguments on appeal. First, he argues the trial
court erroneously denied his motion to prohibit the Commonwealth from striking
jurors in violation of Batson v. Kentucky. Second, Baker argues the trial court
erroneously denied his right to present mitigating evidence in the penalty phase.
Third, Baker argues the trial court erroneously permitted the Commonwealth to
refer to the site of the incident where he was arrested as “a high crime area,” in
violation of the parties’ agreed motion in limine to refrain from such language. We
agree with Baker’s first argument regarding Batson and note that such an error is
Finally, Judge Lucy A. VanMeter entered the final judgment upon her successful election to the
seat formerly occupied by Judge Reynolds.
-4-
structural, requiring a new trial. For these reasons, we need not consider his other
arguments at this time.
Baker argues the trial court erroneously denied his Batson challenge
to the prosecutor’s use of two peremptory strikes. At a bench conference during
voir dire, Baker objected to the prosecutor’s use of peremptory strikes against
Juror 4696 and Juror 4079, both of whom were black men. By way of explanation,
the prosecutor argued that Juror 4696 had disclosed that his father was charged
with murder in Fayette County in 1986, when the juror was thirteen years old.
Despite the juror’s assertion he would be impartial during Baker’s trial, the
prosecutor argued she was uncertain what the juror’s experience was with the court
system. Notably, the prosecutor elected not to strike Juror 4718, a white woman,
who disclosed that she had a brother who was prosecuted for fraud in federal court.
Like the immediately preceding Juror 4696, Juror 4718 stated her family member
was treated fairly and it would not affect her ability to sit as a juror. Next,
regarding Juror 4079, the prosecutor stated the following reason for the strike:
I don’t know if you caught this, but whenever his name
was called, he stood up, shook his head, and was very
disgruntled about it, and kind of gave off bad body
language while we were asking questions—I don’t know
if you caught it or not. He stood up really quick and sat
down . . . . It was pretty quick.
Baker’s counsel maintained his objection to the strikes, asserting these were
insufficiently race-neutral reasons and did not comport with Batson. Without
-5-
providing analysis or commentary, the trial court simply stated, “well, [the
prosecutor] stated her reasons. You preserved that for appeal.”
Batson v. Kentucky forbids the use of peremptory strikes against a
potential juror based on race because doing so results in a violation of equal
protection principles in the federal constitution. “Exclusion of black citizens from
service as jurors constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure.” Batson, 476 U.S. at 85, 106 S. Ct. at 1716. A
prosecutor may use a peremptory strike against a potential juror who happens to
belong to a racial minority group, but the prosecutor must have a race-neutral
reason for doing so. Id., 476 U.S. at 98, 106 S. Ct. at 1724. “[T]he Constitution
forbids striking even a single prospective juror for a discriminatory purpose[.]”
Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).
When a defendant alleges the prosecutor has struck a venire person
based on race, the trial court must engage in a three-part test under Batson to
evaluate the claim:
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of
race. Second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking
the juror in question. Third, in light of the parties’
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
-6-
United States v. Atkins, 843 F.3d 625, 631 (6th Cir. 2016) (citations and internal
quotation marks omitted); Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky.
2012). “[A] Batson violation is structural error not subject to harmless error
review.” Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), abrogated
on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).
However, “[b]ecause the trial court is the best ‘judge’ of the Commonwealth’s
motives in exercising its peremptory strikes, great deference is given to the court’s
ruling.” Tunstull v. Commonwealth, 337 S.W.3d 576, 585 (Ky. 2011)
(quoting Gray v. Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006)). “On appellate
review, a trial court’s denial of a Batson challenge will not be reversed unless
clearly erroneous.” Id. (citations omitted).
In examining the issue through the three-part test outlined above, we
have ascertained there is no need to analyze the first prong, that of prima facie
discrimination, because the prosecutor volunteered an explanation for the
peremptory strike. When “the prosecutor offered a race-neutral explanation for the
peremptory challenge and the trial court has ruled on the ultimate issue of
intentional discrimination, the preliminary issue of whether the defendant had
made a prima facie showing . . . becomes moot.” Commonwealth v. Snodgrass,
831 S.W.2d 176, 179 (Ky. 1992).
-7-
For the second prong of the test, “[t]he issue is the facial validity of
the prosecutor’s explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.” Mash,
376 S.W.3d at 555 (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct.
1859, 1866, 114 L. Ed. 2d 395 (1991)). “This step sets a fairly low bar for the
Commonwealth to meet.” Id. Here, the prosecutor offered two separate
explanations for striking the jurors. First, regarding Juror 4696, the prosecutor
averred that the juror’s father was previously charged with murder, and the juror
may have retained some ill will against the court system. Next, regarding Juror
4079, the prosecutor allegedly viewed a momentary disgruntlement when the juror
heard his name called. Both of the prosecutor’s asserted explanations are facially
race-neutral, in that they “could apply with equal force to a juror of any race.” Id.Therefore, the second prong of Batson was met.
Finally, the third prong of the test required the trial court “to
determine whether the prosecutor’s race-neutral reason was actually a pretext for
racial discrimination.” Id. at 556. On this point, we rely heavily on the trial court:
Because the trial court’s decision on this point requires it
to assess the credibility and demeanor of the attorneys
before it, the trial court’s ultimate decision on
a Batson challenge is like a finding of fact that must be
given great deference by an appellate court. In the
absence of exceptional circumstances, appellate courts
should defer to the trial court at this step of
the Batson analysis.
-8-
Id. (citations and internal quotation marks omitted). This final step of Batson
requires the trial court to engage in an independent assessment of the prosecutor’s
reasoning and credibility. “[A] judge cannot merely accept the reasons proffered at
face value, but must evaluate those reasons as he or she would weigh any disputed
fact.” Abukar v. Commonwealth, 530 S.W.3d 915, 918 (Ky. App. 2017) (quoting
Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000)).
Unfortunately, the trial court in the case sub judice utterly failed to
conduct any kind of independent assessment of the prosecutor’s reasoning. Step
three of Batson requires the trial court to “assess the plausibility of the prosecutor’s
explanations in light of all relevant evidence and determine whether the proffered
reasons are legitimate or simply pretextual for discrimination against the targeted
class.” McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005) (citation
omitted). Instead, the record reflects how the trial court either omitted step three or
conflated it with step two: “Well, [the prosecutor] stated her reasons. You
preserved that for appeal.” This is gravely insufficient. “A [trial] court must
independently assess a race-neutral explanation and explicitly rule on its credibility
. . . . It is inappropriate for a [trial] court to perfunctorily accept a race-neutral
explanation without engaging in further investigation.” United States v. Cleveland,
907 F.3d 423, 434 (6th Cir. 2018) (citations omitted). Furthermore, it is error to
combine the second and third prongs of the Batson inquiry. Thomas v.
-9-
Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004) (citing Purkett v. Elem, 514 U.S.
765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)); see also United States v. Kimbrel,
532 F.3d 461 (6th Cir. 2008).
The dissent focuses on our Supreme Court’s holding in
Commonwealth v. Coker, 241 S.W.3d 305 (Ky. 2007), arguing the result in that
case should control here. After a close examination, we believe Coker is narrowly
distinguishable. In Coker, the trial court made a very terse ruling which the
Kentucky Supreme Court held comported with step three of Batson: “The trial
court ruled without elaboration that there had been no Batson violation.” Id. at
307. Here, the trial court made no ruling at all—in spite of the fact that “trial
judges possess the primary responsibility to enforce Batson and prevent racial
discrimination from seeping into the jury selection process.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2243, 204 L. Ed. 2d 638 (2019).
Coker’s concurrence is particularly compelling as to why a trial court
should explicitly rule on a Batson challenge. Chief Justice Lambert, joined by
Justice Noble, noted the “ease of evasion” inherent in the Batson rule, and warned
that “[a]ppellate courts cannot discharge their duty of review without knowing
what the trial court thought of the controversy.” Id. at 310 (Lambert, CJ,
concurring). We defer to a trial court’s Batson ruling, but, as the Sixth Circuit
stated in another context, “[d]eferential review is not no review[.]” McDonald v.
-10-
Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation and
internal quotation marks omitted). In short, the trial court’s failure to issue a ruling
hindered meaningful appellate review.
Moreover, in Snyder v. Louisiana, a case decided after Coker, the
United States Supreme Court considered the issue of a trial court which failed to
issue a Batson ruling. The Supreme Court determined that demeanor could form
the basis for a peremptory strike; however, in Snyder, “the record does not show
that the trial judge actually made a determination concerning [the potential juror’s]
demeanor. . . . Rather than making a specific finding on the record concerning [the
potential juror’s] demeanor, the trial judge simply allowed the challenge without
explanation.” Snyder, 552 U.S. at 479, 128 S. Ct. at 1209. In the absence of a
ruling by the trial court, the Supreme Court declined to presume that the trial court
agreed with the prosecutor’s assertions. Id. We conclude there is a significant
difference in the trial court’s providing a step-three ruling without an explanation,
as in Coker, and a failure to make any ruling at all, as in Snyder and the case sub
judice.
Finally, even if we were to assume the trial court explicitly ruled on
the prosecutor’s peremptory strike of Juror 4079, the trial court’s acceptance of the
demeanor-based rationale would be an abuse of discretion requiring reversal under
Batson. In coming to this conclusion, we are mindful of the Kentucky Supreme
-11-
Court’s relatively recent memorandum opinion of Sifuentes v. Commonwealth, No.
2016-SC-000485-MR, 2018 WL 898228 (Ky. Feb. 15, 2018).8 In Sifuentes, the
prosecutor used a peremptory strike against a juror who directed “belligerent” and
“hostile” looks at the Commonwealth’s counsel table. Id. at *3. The Supreme
Court acknowledged the facial neutrality of this reason under step two of Batson.
Id. Nonetheless, despite the trial court’s acceptance of the prosecutor’s reasoning,
the Supreme Court held the explanation for the peremptory strike was insufficient
under Batson.
In its decision to reverse for the Batson violation, the Sifuentes court
held, “we have consistently found Batson violations when only the appearance or
demeanor of a perspective juror is the given reason.” Id. at *4 (citing Johnson, 450
S.W.3d at 703-06, abrogated on other grounds by Roe, 493 S.W.3d 814;
Washington, 34 S.W.3d at 379). The Sifuentes court held the prosecutor “did not
offer any explanation as to why [the prospective juror’s] perceived hostility would
make him unfit to serve as a juror” and pointed out that “when proffered reasons
are so vague, the ‘vagueness alone could fairly point toward a conclusion that they
are merely pretextual.’” Id. (quoting Johnson, 450 S.W.3d at 704, abrogated on
other grounds by Roe, 493 S.W.3d 814).
8
Sifuentes is an unpublished opinion which we cite not as authority but for its persuasive value
under Kentucky Rule of Civil Procedure (CR) 76.28(4)(c).
-12-
In the case before us, the demeanor-based rationale is even weaker
than that found to be insufficient in Sifuentes. The prosecutor claimed Juror 4079
had “bad body language” and seemed “disgruntled,” which falls short of the
outright belligerent and hostile looks directed toward the prosecutor in Sifuentes.
Furthermore, the prosecutor in this case admitted to the trial court during the bench
conference that the look was so fleeting that the judge probably did not see it: “I
don’t know if you caught it or not. He stood up really quick and sat down . . . . It
was pretty quick.” Even though Sifuentes is not binding authority, its rationale
persuades us that a similar result is justified in this case. Even if the trial court had
explicitly accepted the prosecutor’s demeanor-based peremptory strike against
Juror 4079, which we have previously noted did not occur, doing so would have
amounted to an abuse of discretion requiring reversal.
Because the trial court failed to undertake an inquiry consistent with
Batson’s framework, and Batson violations are “structural error[s] not subject to
harmless error review[,]” Johnson, 450 S.W.3d at 706, abrogated on other grounds
by Roe, 493 S.W.3d 814, we are required to reverse Baker’s judgment of
conviction and remand for a new trial.
-13-
III. Conclusion
For the foregoing reasons, we reverse the judgment of conviction and
remand this matter for a new trial conducted in a manner not inconsistent with this
opinion.
COMBS, JUDGE, CONCURS.
MCNEILL, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
MCNEILL, JUDGE, DISSENTING: I respectfully dissent because I
do not believe Batson9 requires a trial court to make detailed findings or explain its
reasoning when evaluating a proffered reason for a peremptory strike. The
majority opinion holds the trial court “failed to undertake an inquiry consistent
with Batson’s framework,” when it “utterly failed to conduct any kind of
independent assessment” of the prosecutor’s proffered reasons for its peremptory
strikes. It reaches this conclusion because the trial court “without providing
analysis or commentary” denied the Batson challenge by stating “well, [the
prosecutor] stated her reasons. You preserved that for appeal.”
The majority cites United States v. Cleveland, 907 F.3d 423 (6th Cir.
2018), for the requirement that a trial court must “independently assess a race-
9
Batson v. Kentucky, 476 U.S. 79, 80, 106 S. Ct. 1712, 1714, 90 L. Ed. 2d 69 (1986), holding
modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
-14-
neutral explanation and explicitly rule on its credibility . . . .” Id. at 434 (emphasis
added). But decisions of lower federal courts are not binding on state courts.
Commonwealth Nat. Res. & Env’t Prot. Cabinet v. Kentec Coal Co., 177 S.W.3d
718, 725 (Ky. 2005); Cook v. Popplewell, 394 S.W.3d 323, 346 (Ky. 2011)
(Abramson, J., concurring) (“We, of course, look to the Sixth Circuit with a great
deal of respect, but as the Court of Appeals noted, we are not bound by Sixth
Circuit precedent.”).
Further, the issue of whether a trial court must make explicit findings
as to the credibility of a prosecutor’s race-neutral reason for its peremptory strike
appears unsettled in the federal courts of appeals, including the Sixth Circuit. See
Mitchell v. LaRose, 802 F. App’x 957, 961 (6th Cir. 2020)10 (“[A] clear rejection
of a Batson motion without explicit findings violates no clearly established federal
law.”); compare Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir. 1999) (holding
it was error for the trial court to deny a Batson motion without explicitly
adjudicating the credibility of the non-moving party’s race neutral explanations for
its peremptory strikes) with McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir. 2003)
(“Although reviewing courts might have preferred the trial court to provide express
reasons for each credibility determination, no clearly established federal law
required the trial court to do so.”).
10
Pursuant to Federal Rule of Appellate Procedure 32.1, unpublished federal opinions are
entitled to the same persuasive import as published federal opinions.
-15-
As noted in Mitchell:
“The Supreme Court has never directed trial courts to
make detailed findings . . . before ruling on
a Batson motion.” Caudill v. Conover, 881 F.3d 454,
459 (6th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S.
Ct. 793, 202 L.Ed.2d 586 (2019); see Miller-El v.
Cockrell, 537 U.S. 322, 347, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003) (“[A] state court need not make
detailed findings” to render a proper Batson ruling). Nor
has the Supreme Court generally required trial courts to
make credibility findings about a party’s proffered race-
neutral reason beyond a clear acceptance or rejection of
the motion. Indeed, Batson itself “decline[d] . . . to
formulate particular procedures to be followed” beyond
the three-step framework. 476 U.S. at 99, 106 S.Ct.
1712.
Mitchell, 802 F. App’x at 960.
We are, however, bound by Kentucky Supreme Court precedent,
see Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing SCR11
1.030(8)(a)) (“as an intermediate appellate court, this Court is bound by established
precedents of the Kentucky Supreme Court.”), and its holding in Commonwealth v.
Coker, 241 S.W.3d 305 (Ky. 2007), appears controlling. In that case, a panel of
this Court reversed a trial court’s denial of a defendant’s Batson challenge. On
discretionary review, our Supreme Court reversed, concluding that “the Court of
Appeals did not show proper deference to the wide latitude afforded trial courts in
ruling on Batson challenges.” Id. at 306.
11
Kentucky Supreme Court Rules.
-16-
There, as here, the trial court had denied the Batson challenge
“without elaboration.” Id. at 307. Both defendant and Court of Appeals cited
United States v. Hill, 146 F.3d 337 (6th Cir. 1998), which reversed a trial court’s
Batson ruling, holding it could not conduct a proper review because the trial court
had not explained its reasoning for its rulings in step three of the Batson analysis.
Our Supreme Court held:
We reject any implication in Hill that an otherwise valid
conviction must be reversed if a trial court fails to
articulate its reasons for denying a Batson challenge. We
believe that the fact that the trial court denied the Batson
challenge inherently and obviously contains an implicit
finding that it accepted the Commonwealth’s reason for
striking the African-American veniremember as being
sufficiently race-neutral and non-pretextual.
Because the Batson framework is intended to minimize
delay in jury selection, we reject Hill and the Court of
Appeals’ seeming requirement that a trial court make
detailed Batson-related findings under the facts of this
case. This conclusion is reinforced by the fact that there
is no indication that Coker asked the trial court for any
further findings.
Coker, 241 S.W.3d at 309.
Pursuant to Coker, therefore, a trial court is not required to make
explicit findings or explain its reasoning in denying a Batson challenge. The trial
court’s denial of Baker’s Batson challenge “inherently and obviously contains an
implicit finding that it accepted the Commonwealth’s reason for striking the
African-American veniremember as being sufficiently race-neutral and non-
-17-
pretextual.” Coker, 241 S.W.3d at 309. Further, as in Coker, Baker did not
request more detailed findings from the trial court.
As an additional reason to affirm the trial court, I would find that
Baker’s failure to rebut the Commonwealth’s facially race-neutral reasons for its
peremptory strikes by offering evidence of purposeful discrimination is fatal to his
Batson claims. “[T]he ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514
U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (citation omitted).
“Once the Commonwealth gave its reasoning and such was acceptable to the trial
court, the burden shifted to the Appellant to rebut the neutrality of the reasoning.”
Gray v. Commonwealth, 203 S.W.3d 679, 690 (Ky. 2006); see also Mash v.
Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012) (citation omitted) (“At the third
step of Batson, the burden shifts back to the defendant to show ‘purposeful
discrimination.’”).
Because Baker offered no evidence of purposeful discrimination
“there was nothing on the record from which the trial court could have found that
the Commonwealth’s proffered reasons were a mere pretext for racial
discrimination.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). I
am, thus, “not persuaded that the Appellant met his subsequent burden to provide
further evidence on which the trial court could determine the Commonwealth’s
-18-
peremptory strike to be discriminatory.” Gray, 203 S.W.3d at 691 (citation
omitted).
Therefore, I would affirm the judgment of conviction.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
-19-