author: Justice MORRIS.

text:
    Garnet Gordon CAMERON, Appellant, v. Suzan Elizabeth CAMERON, Appellee.
    No. 05-04-00479-CV.
    Court of Appeals of Texas, Dallas.
    March 15, 2005.

      Garnet Cameron, Carrollton, for Appellant.
    Lora A. Piekar Unglaub, Plano, for Ap-pellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

This is an appeal from an order modifying a child support obligation. In eight points of error, appellant Garnet Gordon Cameron, representing himself on appeal, generally contends the trial court erred in failing to make a fact finding with respect to his ex-wife’s net monthly resources as required by the Texas Family Code; awarding support at variance with the child support guidelines; ordering him to pay appellee additional amounts to cover the cost of his child’s health insurance through her employer and one-half of the child’s day care expenses; and ordering child support that does not permit him to pay his necessary living expenses. Concluding appellant’s points of error lack merit, we affirm the trial court’s judgment.

Appellant filed this action seeking a reduction in his child support payments of $629.54 per month. In his petition, appellant asserted he was laid off from his software engineering position in November 2001 because of a recession in the telecommunications sector. He claims that after almost a year-long period of unemployment, he now works as a customer service representative at a significant reduction in pay.

The trial court signed a temporary order reducing appellant’s support obligation to $319.56 per month. After a hearing, the trial court ordered appellant’s child support obligation permanently reduced to $319.56 per month. The trial court further ordered appellant to pay as additional child support $173.33 per month to cover the cost of his child’s health insurance obtained through appellee’s employer. Additionally, the trial court ordered appellant to pay one-half of all daycare expenses incurred for and on behalf of his child within ten days of his receipt of a copy of the paid invoice. Appellant timely appealed the trial court’s order.

In his first point of error, appellant argues the trial court’s order should be reversed because he was harmed by the trial court’s failure to include a finding on appellee’s net monthly resources as required by section 154.130(b)(2) of the Texas Family Code. We review a trial court’s child support modification order for an abuse of discretion. See Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.). The trial court may modify a previous child support order if the “circumstances of the child or person affected by the order have materially and substantially changed since the date of the order’s rendition.” Tex. Fam.Code Ann. § 156.401(a)(1) (Vernon Supp.2004-05). As movant, it was appellant’s burden to show the requisite material and substantial change in circumstances since the entry of the previous order. See London v. London, 94 S.W.3d 139, 145 (Tex.App.-Hous. [14th Dist.] 2002, no pet.). Thus, if he thought appellee’s current net income was necessary for the success of his petition, it was his responsibility to present evidence on this issue at the time of the hearing. Our review of the record in this case reveals that there was no evidence presented by either party on appellee’s net monthly income. In the absence of such evidence, there was no error in the trial court’s failure to make the finding appellant now demands. We overrule appellant’s first point of error.

In his second, third, and fourth points of error, appellant claims the evidence was legally and factually insufficient to support the tidal court’s finding that application of the child support guidelines would be unjust or inappropriate. Specifically, he complains there was no or insufficient evidence that (1) he was voluntarily unemployed; (2) he failed to pay court ordered child support; (3) he failed to maintain health insurance on his child or reimburse appellee for maintaining the child’s healthcare coverage; or (4) appellee incurred child daycare expenses to maintain her employment.

Legal and factual sufficiency of the evidence are merely factors in assessing whether the trial court abused its discretion in rendering a child support order. London, 94 S.W.3d at 143-44. When conducting a legal sufficiency review, we consider only the evidence and inferences that support the trial court’s findings and will reverse only if there is no more than a scintilla of evidence to support the finding. See Knight v. Knight, 131 S.W.3d 535, 538 (Tex.App.-El Paso 2004, no pet.). When reviewing for factual sufficiency, we examine the entire record and will set aside the finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Id.

At the hearing, appellant testified that when the original child support order was signed, he worked for Nortel Networks making “50 some-odd thousand dollars per year.” Currently, he works 40 hours per week at the rate of $10.50 per hour. His 2002 federal income tax return showed a total income $16,421 of which $12,441 was unemployment compensation. Appellant also offered evidence that he had another child for whom he was responsible. The evidence further revealed that in 2003, appellant owed approximately $15,000 in child support arrears. Moreover, appellant admitted that he had not paid the full amount of the reduced child support payments set forth in the trial court’s temporary order. He claimed his noncompliance was based on his belief that his support obligation would be further reduced upon providing documentation that he was responsible for another child. Documentation for this child, however, was not presented at the hearing. When asked why he did not seek a second job to meet his child support obligation, appellant replied he had to care for his other child.

Appellee testified that although the original divorce decree required appellant to provide health insurance for their child, there were lapses in coverage because of appellant’s layoffs. She noted that appellant failed to notify her when he was laid off. She learned her child was uninsured when she attempted to get his prescription filled and had to pay for the medicine out of her own pocket. There was evidence that since the couple divorced in 1997, appellant has held jobs with four different employers. He was employed for only two years at each of his last two jobs. Appel-lee further testified that because she needed rehable health coverage for their son, she quit her part-time job and took a full-time job for lower pay but with health benefits. As a result, she incurs child daycare expenses of approximately $600.00 per month. Finally, appellee testified that the only health insurance card she received from appellant since he lost his last job was a photocopy of an insurance card faxed to her attorney’s office the month before the hearing.

After reviewing the record, we conclude the evidence was legally and factually sufficient to support the trial court’s order. As outlined above, appellant has held several jobs for relatively short durations since his divorce. Although a software engineer by occupation, he currently works as a customer service representative for significantly lower pay. He was approximately $15,000 in arrears on his child support payments at the time of the hearing and even failed to pay the full amount of the reduced child support set forth in the trial court’s temporary order. Although he currently has health insurance for his child, there was evidence that in the past he had let coverage lapse without notifying appellee. Moreover, appellant did not express a willingness to increase his net resources through additional employment, stating only that he had to care for another child. Appellant also presented no evidence of any attempts to look for a higher paying job or another software engineering position. Based on the record before us, we cannot conclude the trial court abused its discretion in ordering child support above the guidelines.

In points of error five, six, and seven, appellant complains about the sufficiency of the evidence to support the trial court’s finding that he should pay monthly health insurance payments to appellee as additional child support. There was evidence appellant currently had health insurance for his child through his employer. As noted above, however, since the divorce, there have been lapses and changes in coverage based on appellant’s work history. Appellee testified that as a result of these changes and lapses, she changed jobs so that she could provide her son with reliable health care coverage. Because the evidence was legally and factually sufficient to support the finding that appellant failed to keep health coverage on his child, the trial court did not abuse its discretion in ordering him to pay health insurance premiums to appellee as additional child support. We overrule points of error five, six, and seven.

In his eighth point of error, appellant complains that the amount of the trial court’s support order is so high that it does not permit him to pay necessary expenses of living. Because appellant did not present this complaint to the trial court, he has not preserved this point of error for appellate review. Tex.R.App. P. 33.1. We overrule appellant’s eighth point of error.

We affirm the trial court’s order.


source: Caselaw Access Project

author: COOPER, Justice. WINTERSHEIMER, Justice,

license: Public Domain

text:
    Kevin Wayne METCALF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0098-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.
    As Modified of Denial of Rehearing April 21, 2005.

      Dennis L. Null, Daniel C. Thomas, Null, Thomas, Samson & Paitsel, Mayfield, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Michael Harned, Carlton S. Shier, Assistant Attorneys General, Office of the Attorney General, Frankfort, Counsel for Appellee.
   COOPER, Justice.

A McCracken Circuit Court jury convicted Appellant, Kevin Wayne Metcalf, of one count of sodomy in the first degree, KRS 510.070, and one count of sexual abuse in the first degree, KRS 510.110. The trial court sentenced him to twenty years imprisonment for the sodomy conviction and one year imprisonment for the sexual abuse conviction. Appellant appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error: (1) admission of uncharged acts in violation of KRE 404(b) and (c); (2) denial of his motion to suppress his confession; (3) improper interpretation by witnesses of inaudible portions of his audiotaped confession; (4) destruction of exculpatory evidence by the Commonwealth; (5) release of a subpoenaed witness by the Commonwealth without Appellant’s consent; and (6) the Commonwealth’s recall of two witnesses for rebuttal purposes during its case-in-chief. We reverse and remand this case for a new trial because of the improper admission of evidence of uncharged crimes. We will address those additional claims of error that are likely to recur upon retrial. Springer v. Commonwealth, 998 S.W.2d 489, 445 (Ky.1999).

Appellant’s convictions of sexual abuse and sodomy stem from allegations that he fondled and licked the vagina of his stepdaughter, C.I. The investigation began in September 2001 when Stacey Albritton of the Cabinet for Families and Children received a complaint that Appellant had videotaped another stepdaughter, S.K., while she was undressing. Albritton and Kentucky State Police Detective Sam Steger went to Appellant’s residence and interviewed S.K., who related that Appellant took her upstairs and videotaped her as she removed all of her clothing except her panties. Albritton and Steger then interviewed C.I. and H.K., another stepdaughter. C.I. stated that during the Christmas holidays in 2000, Appellant carried her, kicking and screaming, to a trailer behind the home, and that once inside the trailer, he lifted her dress, touched her genitals, and then licked them, while restraining her. H.K. stated that while on a bicycle trip with Appellant, Appellant stopped to urinate and exposed his penis to her. All of the children were under twelve years old when these incidents occurred.

Steger and Albritton interviewed Appellant at the Department of Social Services (“DSS”) office. When Appellant did not provide any useful information, Steger offered to conclude the interview. At trial, Steger, Albritton, and two social workers, who were watching the interview through a two-way mirror for training purposes, testified that Appellant then broke down crying, admitted to all the allegations, and referred to himself as a “sick bastard.” He was placed under arrest.

The Commonwealth sought indictments for all three incidents, but the grand jury indicted Appellant only for the sexual abuse and sodomy of C.I. At trial, C.I., S.K., and H.K. all recanted their allegations, stating that they had jointly fabricated them to “scare” Appellant so that he would stop drinking. They explained that C.L’s father had beaten them when drunk and that they thought of the sexual abuse allegations because another relative had recently been jailed for sexually abusing his child and Appellant would be “scared” that the same thing would happen to him.

I. UNCHARGED ACTS.

Appellant made a pretrial motion in li-mine to exclude any evidence of his inappropriate sexual conduct involving S.K. and H.K. Appellant specifically sought to exclude testimony regarding the videotaping of S.K., the indecent exposure to H.K., and another allegation by H.K. that he induced her to watch a pornographic movie with him. The prosecutor conceded that the pornographic movie incident was inadmissible. The trial court agreed that the indecent exposure evidence should be excluded as irrelevant, but ruled that evidence of Appellant’s videotaping of S.K. was admissible under KRE 404(b)(2) because it explained why Albritton and Steger had gone to Appellant’s residence and interviewed C.I. During trial, however, the court ruled that evidence elicited during cross-examination of H.K. by defense counsel “opened the door” to admission of both the indecent exposure evidence and the pornographic movie evidence.

A. Preservation.

The Commonwealth asserts that these issues were not preserved for appellate review because they were inadequately preserved at trial. The in limine rulings were made on the morning of trial, and defense counsel did not further object during trial to the evidence of the videotaping of S.K. However, defense counsel did argue at trial that his cross-examination of H.K. had not “opened the door” for admission of evidence of the indecent exposure and pornographic movie. Because the issues were properly preserved by the in limine motions, we need not address whether defense counsel failed to preserve the issue because he did not specifically state, “I object.” The Commonwealth cites Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky.1996), for the proposition that the motion in limine was insufficient to preserve these issues for review. This argument ignores an entire sentence in KRE 103(d), which states, “A motion in limine resolved by order of record is sufficient to preserve error for appellate review.” As explained in Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky.2004), Tucker applies when the motion in limine is directed at a general area of inquiry, sometimes referred to as a “class of evidence,” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[3][f], at 36 (4th ed. LexisNexis 2003), not a particular evidentiary fact. Appellant’s motion in limine and the trial court’s rulings thereon covered testimony regarding particular ev-identiary facts and thus properly preserved all three of these issues for appellate review.

B. Notice.

Appellant asserts that he did not receive notice of the Commonwealth’s intent to introduce these uncharged acts as required by KRE 404(c). However, the Commonwealth included this information in its bill of particulars. RCr 6.22. See Hayes v. Commonwealth, 58 S.W.3d 879, 881 (Ky.2001) (“The Commonwealth provided notice in its Bill of Particulars that it planned to introduce [appellant’s] three-year-old misdemeanor conviction ... ”). Further, the purpose of KRE 404(c) is to provide the defendant an opportunity to challenge the admission of the evidence. Tamme v. Commonwealth, 973 S.W.2d 13, 31 (Ky.1998). The fact that Appellant filed a motion in limine to suppress the evidence is proof that he was not prejudiced by a failure to receive formal notice. Soto v. Commonwealth, 139 S.W.3d 827, 859 (Ky.2004); Bowling v. Commonwealth, 942 S.W.2d 293, 300-01 (Ky.1997).

C. “Inextricably intertwined. ”

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” KRE 404(b). Appellant asserts that evidence of the videotaping of S.K., the indecent exposure, and the pornography incident, was admitted only to show his “lustful inclination,” i.e., that he was the type of person who would likely molest C.I. See Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985) (“[N]o evidence is admissible to show ‘lustful inclination.’ ”). The Commonwealth does not assert that the acts were so similar to the charged offenses as to establish, e.g., motive or identity through evidence of modus operandi. KRE 404(b)(1); Billings v. Commonwealth, 843 S.W.2d 890, 893 (Ky.1992). Rather, the trial court admitted the videotaping evidence under KRE 404(b)(2) because the evidence explained why Steger and Albritton came to Appellant’s residence to interview his children, reasoning that it was, therefore, “so inextricably intertwined” with the charged offense that its exclusion would seriously adversely affect the Commonwealth’s ability to present its case. However, as we noted in Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992):

[T]he key to understanding this exception is the word “inextricably.” The exception relates only to evidence that must come in because it “is so interwoven with evidence of the crime charged that its introduction is unavoidable.”

Id. at 480 (emphasis added) (quoting Lawson, The Kentucky Evidence Law Handbook, § 2.20, at 37 (2d ed.1984)). See also Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220, 221 (1940) (evidence is inextricably intertwined where “two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other”).

It would have been a simple matter for Steger and Albritton to truthfully testify that they came to Appellant’s residence to investigate an allegation of child abuse without mentioning the uncharged videotaping incident. “Patently this is not a case where it would be necessary to suppress facts and circumstances relevant to the commission of the offense charged [sodomy and sexual abuse of C.I.] in order to exclude evidence of the prior offense [videotaping of S.K.].” Funk, 842 S.W.2d at 480. See also Scamahorne v. Commonwealth, 357 S.W.2d 30 (Ky.1962) (conviction for carrying a concealed deadly weapon discovered during service of arrest warrant reversed because of admission of evidence that the warrant was for a charge of bank burglary).

As Professor Lawson warns, KRE 404(b)(2) “poses a special threat to the law’s overriding objective of protecting defendants against the prejudice that is inherent in evidence of other crimes.” Lawson, supra, § 2.25[4][e], at 139.

“In practice, ... this expanded idea of contextual relevance often paves the way to prove acts that are anything but inseparable [from] the charged crime, and this label can easily become a catchall for admitting other acts that are far more prejudicial to the defendant than useful in determining guilt of the charged offense.”

Id. (quoting 1 Mueller & Kirkpatrick, Federal Evidence § 111) (2d ed.1994).

The specter that misuse of KRE 404(b)(2) will lead to the introduction of prejudicial collateral facts is embodied by what happened in this case. At trial, the Commonwealth not only elicited from Steger and Albritton that they had gone to Appellant’s residence to investigate an allegation that Appellant had videotaped S.K. undressing, but also (1) elicited from Steger, Albritton, and the two social workers who were watching through the two-way mirror that Appellant confessed to videotaping S.K. and to having destroyed the videotape by burning it on a burn pile in his back yard (Steger even introduced photographs of the burn pile); and (2) elicited from S.K. that she had told Steger and Albritton, as well as Barbara Driskill, clinical director of Child Watch Advocacy Center, that Appellant had videotaped her undressing. During the in limine hearing, both the prosecutor and the defense counsel admitted knowing that, if asked, S.K. probably would recant her accusation and claim that the incident had not occurred. After S.K. did, in fact, recant during direct examination by the prosecutor, the Commonwealth impeached her recantation by recalling Steger and Albritton to provide details of what S.K. had told them about the incident, and by calling Barbara Driskill as a witness to testify that S.K. had twice told her about the incident, including that Appellant paid her ten dollars to remove her clothing.

Even if Steger’s and Albritton’s initial testimony that they went to the Metcalf residence to investigate the videotaping incident had been admissible under KRE 404(b)(2) (it was not), neither Appellant’s confession to committing the act nor S.K’s testimony about it was “inextricably intertwined” with the charged offense. The exclusion of Appellant’s confession and S.K.’s testimony about the videotaping incident would not have required suppression of any facts and circumstances relevant to the charged sodomy and sexual abuse of C.I. Funk, 842 S.W.2d at 480. And, of course, absent S.K.’s testimony and subsequent recantation, there would have been no basis at all for the admission of S.K’s prior inconsistent statements under KRE 801A(a)(1). In fact, it is doubtful that S.K’s recantation opened the door for the rebuttal evidence since she admitted having told Steger and Albritton the story about the videotaping but claimed at trial that she had lied to them.

Further, the videotaping incident was a collateral fact, and although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have consistently recognized that prohibition as a valid principle of evidence. Purcell v. Commonwealth, 149 S.W.3d 382, 397-98 (Ky.2004); Neal v. Commonwealth, 95 S.W.3d 843, 849 (Ky.2003); Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997); Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554, 563-64 (Ky.2003). Professor Lawson suggests that the KRE 403 balancing test, i.e., weighing the probative value of the impeachment against the prejudicial effect of the evidence and its possible confusion of issues, resolves the issue more properly than a distinction between collateral and non-collateral facts. Lawson, supra, § 4.05[3], at 276. It would be a rare occurrence, we think, when the prejudicial effect of evidence of “other bad acts” would not substantially outweigh the impeachment value of such evidence, and this case is not that rare occurrence.

The videotaping evidence was, therefore, essentially proof of Appellant’s bad moral character by evidence of a specific instance of conduct. The prosecutor may introduce evidence of the accused’s bad character only to rebut evidence of the accused’s good character — which had not been introduced at the time of S.K’s testimony. KRE 404(a)(1). And character evidence is admissible only in the form of reputation or opinion, not specific instances of conduct, where, as here, character is not an essential element of a charge, claim, or defense. KRE 405.

D. “Opening the door.

As noted, the trial court sustained Appellant’s in limine motion to exclude evidence that he indecently exposed himself to H.K., and the prosecutor conceded that the pornographic movie evidence was inadmissible. After C.I. recanted her accusation that Appellant had sodomized and sexually abused her, the Commonwealth called H.K. as a witness to testify that C.I. had previously told her about the sodomy and sexual abuse. On cross-examination, the following colloquy occurred between defense counsel and H.K.:

Q. During the entire time that you have known him, has Kevin Metcalf ever committed any improper touch or act upon you?
A. No.

The trial court held that this question and answer “opened the door” to the admission of the indecent exposure and pornography evidence. When H.K. recanted those accusations, the Commonwealth introduced into evidence a written statement that H.K. had given to her biological father, which included those allegations. Although H.K. admitted that she had also made the same allegations to Steger and Albritton, the trial court allowed the Commonwealth to recall Steger and Albritton to repeat that H.K. had described the two incidents to them. Bridget Fralee, another social worker, also testified that H.K. had described the two incidents to her.

The allegations of indecent exposure and exposure to pornography were collateral facts and what was said supra, in Part IC, about impeachment on a collateral fact applies to these incidents just as it does to the videotaping incident. As for “opening the door,” the trial court presumably was referring to the doctrine of “curative admissibility,” i.e., when one party introduces improper evidence, such “opens the door” for the other party to introduce improper evidence in rebuttal whose only claim to admission is that it explains or rebuts the prior inadmissible evidence. Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky.2002); Lawson, supra, § 1.10[5], at 43. See Johnson v. Commonwealth, 105 S.W.3d 430, 441-42 (Ky.2003) (daughter’s statement that she had never seen her father with drugs was impermissible character evidence and permitted admission of evidence that her father had previously pled guilty to drug trafficking). Here, however, it was the Commonwealth that opened the door for H.K’s arguably improper evidence of Appellant’s “good character” by using the videotaping incident as evidence of his bad moral character.

The introduction and continuous reintroduction of inadmissible and highly prejudicial evidence of these other uncharged acts requires reversal for a retrial.

II. CONFESSION.

A. Brady Issues.

Steger unsuccessfully attempted to record Appellant’s confession. When he later tried to replay the audiotape, he discovered that it was inaudible. He sent the tape to the Kentucky State Police laboratory to see if any portions of the interview could be recovered. Unfortunately, the laboratory could not recover the interview and concluded that the tape’s inaudibility most likely resulted from battery failure. Claiming that the Commonwealth failed to preserve exculpatory evidence, Appellant made a pretrial motion to suppress his confession. While the trial court overruled the motion, it later granted Appellant’s request for a “missing evidence” jury instruction. The instruction provided:

The Commonwealth has lost or destroyed evidence involved in this case, specifically a[n] audiotape and notes from an interview. In your deliberations, you may infer, but you are not required to infer, that this evidence, if available now, would be favorable to the Defendant’s case.

Appellant now challenges the testimony regarding his confession for the same reasons set forth in his pretrial motion. He claims that he was “forcefully spoon-fed portions of his statement,” and that absent the audiotape or his decision to waive his Fifth Amendment right not to testify, he had no way to refute the Commonwealth’s account of his confession.

While Appellant may have faced a dilemma, such would not require suppression of evidence of his confession. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a criminal defendant’s right to due process prohibits the government from withholding material exculpatory evidence, in good or in bad faith. Id. at 87, 83 S.Ct. at 1196-97. Exculpatory evidence meets the materiality requirement only if it would have affected the outcome of the trial. United States v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). In the context of a failure to preserve exculpatory evidence, the defendant must show that the government acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984) (noting that defendant was unable to prove that the government acted with animus towards him in disposing of breath samples); United States v. Pedraza, 27 F.3d 1515, 1527 (10th Cir.1994); Kirk v. Commonwealth, 6 S.W.3d 823, 826 (Ky.1999). Additionally, the exculpatory value of the evidence must have been obvious prior to its destruction, and the defendant must demonstrate an inability to obtain the evidence by other reasonable means. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534.

That inquiry is unnecessary here. While Appellant infers that the Commonwealth failed to preserve the audiotaped confession, the trial court found otherwise, concluding that the recording device malfunctioned and that an audible recording never existed. We will not disturb this finding of fact, as nothing in the record indicates that it was clearly erroneous, Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky.2000), given Steger’s testimony that he attempted in good faith to record the interview. Thus, we categorize the equipment malfunction as a failure to create evidence to corroborate a confession, rather than a failure to preserve exculpatory evidence, and we find that none of Appellant’s rights under either the United States or Kentucky Constitutions were violated. Brashars v. Commonwealth, 25 S.W.3d 58, 60-62 (Ky.2000) (Commonwealth has no constitutional obligation to record a confession). While it would be ideal for the trial court to have perfect evidence in the form of a recording when determining the voluntariness of a confession, “we disagree ... that fundamental fairness cannot be ensured by a trial court’s resolution of factual disputes regarding custodial interrogations on the basis of testimony from the persons involved.” Id. at 62. Cf. Pedraza, 27 F.3d at 1526-27 (Brady not implicated where telephone calls were not recorded due to equipment failure, among other things); United States v. Marashi, 913 F.2d 724, 734 (9th Cir.1990) (Brady does not require prosecution to tape interviews of its witnesses; no constitutional obligation to compile Brady material); United States v. Bernard, 625 F.2d 854, 859-60 (9th Cir.1980) (federal agent’s intentional refusal to take notes of interviews so that defendant could not later discover them did not violate Brady).

Appellant mounts a second Brady challenge, this time with respect to Albrit-ton’s handwritten notes taken during his interview. Albritton, who participated in Appellant’s interview and heard his confession, disposed of her notes after using them to compile a report. She testified that it is office policy that investigators retain their notes only until their reports are approved, and that she had destroyed her notes after her report was approved. Appellant claims that her notes, like the audiotape, may have contained exculpatory evidence regarding his confession.

Unlike the audiotape, Albritton’s notes actually existed, necessitating an inquiry under Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2533-34. Appellant has failed to demonstrate that Albritton disposed of her notes in bad faith. We defer to the trial court’s finding that Albritton destroyed her notes as a matter of custom, rather than out of animus toward Appellant, Deloney, 20 S.W.3d at 473-74, and apply the United States Supreme Court’s holding in Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256 (1961), later endorsed in Trombetta, 467 U.S. at 487, 104 S.Ct. at 2533:

“If the agents’ notes ... were made only for the purpose of transferring the data thereon ... and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.”

As in Killian, Albritton took notes only for the purpose of compiling an investigative report. Additionally, Appellant has failed to meet Trombetta’s materiality requirement because he is unable to demonstrate that he cannot obtain evidence of what occurred during the interview through other reasonable means. Four persons witnessed the interview: Albritton, Steger, and the two social workers who observed through a two-way mirror. All of those persons testified at trial and gave virtually identical accounts of what happened. United States v. Rivera-Relle, 333 F.3d 914, 922 (9th Cir.2003) (materiality requirement not met in case where government failed to preserve dispatch audiotape when other agents could have testified to the contents on the tape); United States v. Parker, 72 F.3d 1444, 1452 (10th Cir.1995) (materiality requirement not met in case of erased videotape where attendant officers could testify to what happened). All four witnesses denied that Appellant was “spoon fed” his confession and confirmed that he broke down and voluntarily confessed. Appellant’s constitutional rights were not violated simply because their testimony did not agree with his desired version of the events. Finally, any possible prejudice was cured by the missing evidence instruction. Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky.1997) (“Giving [a missing evidence instruction] provided Appellant more than the process due.”) (internal citations and quotations omitted).

B. Commonwealth’s interpretation of the audiotape.

Appellant contends that testimony describing his interview violated the holding in Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988) (plurality opinion), that a party may not furnish the jury with its interpretation of an inaudible audiotape. Id. at 540-41. In Sanborn, the defense attorney disagreed with the Commonwealth’s interpretation of twenty-five statements on the tape. Nevertheless, the trial court permitted the Commonwealth to furnish the jury with a written transcript of its interpretation of the inaudible tape with the Commonwealth’s interpretation of the disputed portions highlighted in yellow. The trial court admitted the Commonwealth’s transcript into evidence but did not allow the defendant any input. A plurality of this Court held that the trial court abused its discretion by admitting the Commonwealth’s transcript into evidence. Id. at 540. Appellant argues that the testimony of those who observed his interview was tantamount to the Commonwealth’s transcript in Sanborn. We disagree.

The situation here does not resemble that in Sanborn. Here, the court permitted the Commonwealth’s witnesses to testify to what they observed, but the court did not endorse their testimony as did the trial court in Sanborn. Nor was Appellant denied “input;” the trial court permitted him to cross-examine all of the Commonwealth’s witnesses. The witnesses were not interpreting an inaudible tape; rather, they were only relating what they, themselves, saw and heard. Clifford v. Commonwealth, 7 S.W.3d 371, 374 (Ky.1999).

III. OTHER CLAIMS OF ERROR.

Appellant also raises claims that the Commonwealth improperly excused a subpoenaed witness and was improperly permitted to recall Steger and Albritton as rebuttal witnesses during its case-in-chief. We perceive no error in either instance because (1) the witness was excused by the trial court, Anderson v. Commonwealth, 63 S.W.3d 135, 142 (Ky.2001), and (2) “the trial judge has ... broad discretion to control interrogation of witnesses and production of evidence and decisions made in the exercise of this discretion have not been disturbed without a clear showing of abuse and prejudice.” Lawson, supra, § 3.20, at 238 (discussing KRE 611(a)). Regardless, these issues are mooted by the fact that this case must be retried.

Accordingly, we reverse Appellant’s convictions and sentences and remand this case to the McCracken Circuit Court for a new trial in accordance with the content of this opinion.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and KELLER, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion.

SCOTT, J., not sitting.

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent from the majority opinion because the trial judge did not commit reversible error in admitting evidence of other uncharged acts under the circumstances of this case.

Metcalf was convicted of sodomy and sexual abuse against his then 8-year old stepdaughter. The convictions arise from allegations that he sexually abused three of his stepdaughters all of whom were under 12-years of age when the incidents occurred. Metcalf argues that it was error to admit any evidence regarding the allegations made by the other two stepdaughters. Prior to trial, Metcalf filed a motion in limine to prohibit the use of any evidence pertaining to other children. The prosecution maintained that the evidence of other allegations was admissible, pursuant to KRE 404(b)(2), and to rebut the defendant’s claim that he was simply answering yes or no questions in his police interview. Ultimately, the trial judge concluded that the allegations of improper videotaping made by one of the stepdaughters were inextricably intertwined with the charged acts and were therefore admissible. The trial judge also ruled that the allegations of exposure on a bicycle trip were too remote and, therefore, inadmissible.

In his opening statement and before evidence had been introduced, defense counsel commented at some length on the videotape of one of the other stepdaughters. He noted that no videotape was ever found, and consequently, indicated that the tape never existed and that the allegations were entirely fabricated by the children. When the actual evidence was introduced during trial, no objection was raised. In a trial where credibility and conflicting statements by the victim and the defendant are central to the ultimate conclusion, evidence such as presented here regarding the destruction of the videotapes was admissible to rebut the challenge by the defendant to his confession. The prosecution did not present the evidence to show character in conformity with the charged offense, but rather to rebut the claim that the confession was simply the product of convenience or pressure. The background of the videotape was thoroughly intertwined with other necessary evidence in this case. Surely, the prosecution is entitled to present a complete picture of the crime committed, including necessary background and perspective. See Norton v. Commonwealth, 890 S.W.2d 632 (Ky.App.1994). This Court has held that evidence of other bad acts is admissible provided it is so interwoven with other evidence that it is necessary and appropriate. Schambon v. Commonwealth, 821 S.W.2d 804 (Ky.1991).

In addition, there was no error in admitting evidence of the allegations of indecent exposure made by the third stepdaughter. During cross-examination of that victim, she specifically testified that during the entire time she had known the defendant he had never acted improperly toward her or her sisters. Accordingly, the prosecution sought to introduce evidence of her allegations of indecent exposure and the trial judge allowed it, determining that the defendant had opened the door.

Fundamentally, the decision to admit or exclude evidence is left to the sound discretion of the trial judge. In reviewing such discretion, the inquiry is limited to the question of whether there was an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941 (Ky.1999). There was no arbitrary or capricious action by the trial judge that amounted to an abuse of discretion.

I would affirm' the convictions in all respects.

      . The Commonwealth asserts that Appellant's confession to the videotaping incident was admissible to rebut his claim that his confession consisted only of "yes” and "no” answers to leading questions by his interrogators. However, Appellant only raised this claim at the pretrial suppression hearing. Appellant did not testify at trial, so there was no such claim to rebut.


author: Justice KELLER.

text:
    NEWELL ENTERPRISES, INC.; and Joe Newell, Individually, Appellants, v. Hon. James BOWLING, Jr., Judge, Bell Circuit Court, Appellee, and Concrete Products, Inc., Real Party in Interest.
    No. 2004-SC-0263-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.
    Rehearing Denied April 21, 2005.

      Kenneth A. Smith, Jr., London, Counsel for Appellants.
    James Bowling, Jr., Judge, Bell Circuit Court, Pineville, for Appellee.
    William A. Watson, Middlesboro, Counsel for Real Party in Interest.
   Opinion of the Court by

Justice KELLER.

I. INTRODUCTION

In an original action in the Court of Appeals, Appellants petitioned for a writ (1) to set aside the finding by the Bell Circuit Court that an injunction existed against Appellants and (2) to bar pending contempt proceedings against Appellants. The Court of Appeals denied the petition, finding that Appellants had failed to show that they had no adequate remedy by appeal and that they would suffer great and irreparable harm. Appellants now appeal, claiming that because contempt proceedings are different from other proceedings and because the nature of the harm from a contempt order is so great, a writ is necessary. We disagree and affirm the judgment of the Court of Appeals.

II. BACKGROUND

In 1996, Concrete Products, Inc., Real Party in Interest (hereinafter “Concrete Products”), filed a lawsuit in Bell Circuit Court against Newell Enterprises, Inc., Appellant (hereinafter, with Joe Newell, “Appellants”). The parties settled the lawsuit by entering into a non-compete agreement on September 7, 2001. The non-compete agreement set forth geographical limits on Appellants’ business of the production and sale of ready-mix concrete in Bell County and was to be in effect for five years.

On August 8, 2003, Concrete Products filed a second lawsuit against Appellants in Bell Circuit Court, Civil Action No. 03-CI-00364. In this second lawsuit, Concrete Products claimed that Appellants had breached the non-compete agreement by engaging in the business of production and sale of ready-mix concrete within the proscribed geographic area. Apparently, Appellants admitted to breaching the agreement, albeit mistakenly, and on September 3, 2003, settled the case by tendering a document signed by both parties and entitled “Judgment Pro Confesso.” Although this document is more appropriately termed an “agreed judgment” given that the parties tendered it to the court and agreed to its terms and that it was apparently not the result of a failure to answer the complaint, for the sake of clarity, we will retain the parties’ nomenclature.

According to the “Judgment Pro Confes-so,” Appellants affirmed the non-compete agreement and agreed to observe its terms. The “Judgment Pro Confesso” also dismissed the second lawsuit with prejudice.

On October 30, 2003, Concrete Products filed a motion for an order of contempt and for sanctions against Appellants for alleged further violations of the non-compete agreement. In its motion, Concrete Products claimed that Appellants had done concrete work within the proscribed geographic area during September and October of 2003. Curiously, the motion was filed under the docket number (03-CI-00364) of the lawsuit that had been filed in August 2003 and then was voluntarily dismissed by the parties’ agreement with prejudice in September 2003. On December 8, 2003, the Bell Circuit Court entered an order stating that although the “Judgment Pro Confesso” did not meet the technical requirements of CR 65.02, which lists the requirements of a restraining order or an injunction, the court had “determined that [Appellants were] permanently enjoined by the entry of the Judgment Pro Confesso” and scheduled Concrete Products’s contempt motion for a hearing on December 22, 2003.

Rather than face a contempt finding and possible sanctions, Appellants filed an original action in the Court of Appeals seeking a writ directing the Bell Circuit Court to “set aside the ... finding of the existence of an injunction and desist from further judicial actions flowing therefrom.” Appellants argued that the “Judgment Pro Confesso” was not an injunction because it failed to meet the requirements of CR 65.02, and thus the circuit court was acting improperly. Appellants then argued that they would be irreparably injured and had no adequate remedy by appeal because the trial court had summarily determined that a breach of contract had occurred and had created an ex post facto injunction, and, as a result, Appellants “face[d] impositions of sanctions, all without the benefits and safeguards of due process of law and compli-anee with procedural steps required by CR 65.02.”

The Court of Appeals considered Appellants’ original action and found it to be without merit. Specifically, the Court of Appeals held that Appellants “failed to show that they would suffer irreparable harm without the issuance of the writ and ... failed to show that they have no adequate remedy by appeal.” Appellants now appeal to this Court as a matter of right.

III. ANALYSIS

The writ of prohibition is such an “extraordinary remedy” that Kentucky courts “have always been cautious and conservative both in entertaining petitions for and in granting such relief.” We have divided writ cases into “two classes,” which are distinguished by “whether the inferior court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’), or (2) acting erroneously within its jurisdiction.” Under the first class of cases, if the lower court lacks jurisdiction and relief from an intermediate court is not available, then a writ is appropriate and the higher court may, in its discretion, issue the writ.

Under the second class of cases, a writ “may be granted upon a showing ... that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” “No adequate remedy by appeal” means that any injury to Appellants “could not thereafter be rectified in subsequent proceedings in the case.” Lack of an adequate remedy by appeal is an absolute prerequisite to the issuance of this second class of writ. “Great and irreparable injury” means “something of a ruinous nature.” “Ordinarily if this cannot be shown, the petition will be dismissed.”

The basic standard of review of the grant or denial of a writ is abuse of discretion. But where the issue presented involves a question of law, we review the question of law de novo. And if the alleged error lies in findings of fact of the Court of Appeals, e.g., the finding regarding irreparable harm, then we would review for clear error under CR 52.01.

On appeal, Appellants have made two claims: (1) that the Court of Appeals erred in not granting the writ under the usual standard because this case involves a contempt proceeding, thus it is “in a class by itself’; and (2) the adverse effect of a contempt citation on Appellants’ reputation in the business community is a special circumstance that requires the extraordinary remedy of a writ. The first of these issues was not raised at the Court of Appeals. Instead, Appellants only argued to the Court of Appeals that the sanctions that could result from the contempt hearing at the circuit court constituted a great and irreparable harm with no adequate remedy on appeal. “It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court.” As such, we cannot properly address Appellants’ current claim regarding the “specialness” of contempt proceedings because that matter was not argued to the Court of Appeals, though we must admit that Appellants’ implied claim that contempt proceedings require a different writ standard seems without merit.

Appellants’ second claim, regarding the negative effect on reputation of a contempt order, could be read as a claim of great and irreparable injury. Though the claim was not presented in exactly this form to the Court of Appeals, where Appellants merely made the blanket assertion that the possible sanctions stemming from a finding of contempt would be great and irreparable injury, it is close enough that we will address it.

First, we would note that Appellants do not appear to claim that a contempt proceeding could not be adequately remedied by appeal. This, in and of itself, is fatal to their appeal because we “have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise” before proceeding to the determination of whether great and irreparable harm exists. But because the Court of Appeals addressed the issue, albeit briefly, and because it is arguable that Appellant has, somewhere “between the fines,” implied that it has no adequate remedy by appeal, and because the existence of a remedy by appeal, adequate or not, is a question of law, which we review de novo, we will address the issue.

At one time, no appeal was allowed from a judgment of contempt except “to determine whether the punishment declared by the judgment complained of was illegally imposed, and whether such punishment [was] excessive.” And for that reason, as a matter of law, no adequate remedy by appeal existed from a contempt judgment and issuance of a writ was the appropriate remedy. But since the adoption of the Judicial Amendment and the enactment of enabling legislation, there has existed a right of appeal from a contempt judgment. Thus, today, possible sanctions for contempt, standing alone, may not mean irreparable harm for which no adequate remedy by appeal exists. A petition to prohibit possible sanctions for contempt stands on its own merits, and a writ will not issue unless it is shown that the standard for the issuance of a writ has been met. On this point, we simply note that because almost any contempt finding by the circuit court would be appealable, the remedy of a writ is inappropriate.

Although it is unnecessary, for the sake of completeness, we will address the great and irreparable harm aspect of Appellants’ second claim. While it is possible, though unlikely, that a finding of contempt could injure a business reputation to such a degree as to cause great and irreparable harm, we note that the Court of Appeals was not convinced that was the case here; thus it ruled that Appellants failed to show such great and irreparable harm. This is a finding of fact to which we defer under the clearly erroneous standard.

Citing Miller v. Stephenson, Appellants argue that the impact of a contempt finding on the reputation of an attorney goes beyond the pecuniary loss caused by the fine itself. But nowhere in the record is there an assertion that an attorney will be negatively impacted by a possible contempt finding in this case. It is possible that one of the Appellants, Joe Newell, is an attorney, but that fact has not been asserted anywhere in the record. Appellants also claim that their business competitors could use a contempt citation “to paint [them] as unscrupulous and a scofflaw.” While this may be the case, Appellants have failed to produce sufficient evidence in the record to show that the Court of Appeals clearly erred in failing to find either that Appellants might gain reputations as being unscrupulous or as scofflaws or that such an effect on reputation would rise to the level of great and irreparable injury. Upon reviewing the record, scant as it is, we are not convinced — at all — that the finding of the Court of Appeals was clearly erroneous.

Though the Court of Appeals did not address this issue, we also note that Appellants have not been held in contempt. They petitioned the Court of Appeals before the circuit court held the scheduled contempt hearing. Any harm they faced, in addition to not being great and irreparable, is at most only a potential harm, and, as such, Appellant’s writ claim is not ripe.

Finally, we note that Appellants would have been better served by proceeding under the first class of writ cases, i.e., where the lower court is proceeding outside its jurisdiction, because it appears that the circuit court in this case has done exactly that with the order it entered on December 8, 2008. “In simple terms, jurisdiction is ‘[a] court’s power to decide a case or issue a decree.” ’ Jurisdiction, however, consists of three separate elements: “(1) jurisdiction over the person, (2) jurisdiction over the subject matter, and (3) jurisdiction to render the particular judgment sought, or as is sometimes said, jurisdiction of the particular case.” This case appears to fail this third prong because the civil case in which the order and Concrete Products’s motion for contempt were filed had already been dismissed with prejudice by the entry of the “Judgment Pro Confesso” in August 2003 and Concrete Products had not filed a separate civil suit over the alleged new breach of the non-compete agreement. Because the civil action was no longer pending before the circuit court, the circuit court had no jurisdiction to take any action in the case.

Appellants, however, have not raised this issue. And though in the context of a writ case where the lower court was acting outside its jurisdiction our predecessor court noted that “it would be a most inept ruling to deny the writ, require a trial on the merits, and then on an appeal be forced to reverse the case,” it also noted that “question [of jurisdiction] is squarely presented” and that jurisdiction was “the very question ... before [the Court].” Thus, because the issue is not before us and was never even presented to the Court of Appeals, we cannot reverse the denial of the writ on this ground.

IV. CONCLUSION

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

LAMBERT, C. J.; COOPER, GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ., concur.

      . See 27A AM. JUR. 2D Equity § 249 (1996) ("A decree pro confesso in equity is similar to a default judgment in an action at law. If a defendant in an equity suit fails to answer the plaintiff's petition within the prescribed time period, the bill will be taken pro confesso, and a decree entered in favor of the plaintiff accordingly.”). Compare BLACK'S LAW DICTIONARY 1243 (8th ed.2004)(defining “pro confesso ” as follows: "As having confessed or admitted liability, as by failing to appear when required. A defendant who failed to answer a bill in equity was often treated pro confesso.’’), and id. at 178 (defining "bill taken pro confesso ” as follows: "An order issued by a court of equity when a defendant fails to file an answer.”), and id. at 441 (defining "decree pro confesso” as follows: "A decree entered in favor of the plaintiff as a result of the defendant's failure to timely respond to the allegations in the plaintiff's bill; esp., a decree entered when the defendant has defaulted by not appearing in court at the prescribed time. — Also termed decree taken pro confesso."), with id. at 858-59 (defining "agreed judgment” as follows: "A settlement that becomes a court judgment when the judge sanctions it. In effect, an agreed judgment is merely a contract acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgments.”). It is even possible that the document is a "confession of judgment,” see id. at 317 (defining "confession of judgment” as follows: "1. A person’s agreeing to the entry of judgment upon the occurrence or nonoccurrence of an event, such as making a payment. 2. A judgment taken against a debt- or by the creditor, based on the debtor's written consent. 3. The paper on which the person so agrees, before it is entered.” (citations omitted)), but it is definitely not a "judgment pro confesso.”

      . CR 76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”); see also KY. CONST. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”).

      . Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961).

      . Id.

      . Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004); Chamblee v. Rose, 249 S.W.2d 775, 777 (Ky.1952).

      . Hoskins, 150 S.W.3d at 10 (Ky.2004); see also Bender, 343 S.W.2d at 801 (holding that writs "ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied.” (emphasis in original))).

      . Bender, 343 S.W.2d at 802.

      . Id. at 801.

      . Id.

      . Id.

      . Haight v. Williamson, 833 S.W.2d 821, 823 (Ky.1992) ("Issuance of, or a refusal to issue a writ of prohibition is in the sound discretion of the court.”).

      . Rehm v. Clayton, 132 S.W.3d 864, 866 (Ky.2004)("[A]ppellate review of that decision is limited to an abuse-of-discretion inquiry, except for issues of law which are reviewed de novo.”); see also Ky. Labor Cabinet v. Graham, 43 S.W.3d 247, 250 (Ky.2001) ("As the issues on this appeal are to be decided as a matter of law, our review of the Court of Appeals decision is not confined to an abuse of discretion inquiry.”).

      . Normally it would be inappropriate for the Court of Appeals to find facts, but because it acts as the trial court in original actions, such findings are necessary.

      . Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky.1986); see also Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976). ("Appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.”).

      . Bender, 343 S.W.2d at 801.

      . 1898 Ky. Acts ch. 19, § 1 ("No appeal shall be taken to the Court of Appeals ... to reverse a judgment ... punishing contempt[.]” (codified as KS 950)); 1914 Ky. Acts ch. 23, § 1 (“[N]o appeal shall be taken to the Court of Appeals as a matter of right ... to reverse a judgment ... punishing contempt[.]” (codified as KS 950-1)); 1942 Ky. Acts ch. 208, § 1 (re-enacting KS 950-1 as KRS 21.060); 1952 Ky. Acts ch. 24, § 1 ("Appeals may be taken to the Court of Appeals as a matter of right from all final orders and judgments of circuit courts in civil cases except: ... Judgments punishing contempts[.]” (codified as KRS 21.060(1)(c))); 1976 Ky. Acts ch. 67, § 14 (repealing KRS 21.060 after passage of Kentucky’s Judicial Amendment).

      . French v. Commonwealth, 97 S.W. 427, 430 (Ky.1906); accord Levisa Stone Corp. v. Hays, 429 S.W.2d 413 (Ky.1968) ("Some confusion has been created by opinions of this court which recognize a limited right of appeal from judgments punishing for criminal contempt on the ground the punishment was either 'illegally imposed' or was ‘excessive’.”).

      . E.g., Miller v. Stephenson, 474 S.W.2d 372, 375-376 (Ky.1971) ("KRS 21.060(1)(c) forbids an appeal from judgments punishing contempts.... The impact upon the professional standing of a lawyer created by a citation for contempt of court is not limited by the monetary amount of the fine imposed. The court is of the view that the petition states facts and circumstances entitling the petitioner to the extraordinary remedy sought.”); Herr v. Humphrey, 277 Ky. 421, -, 126 S.W.2d 809, 810 (1939) (“The first question presenting itself is as to the power of this court to issue a writ of prohibition restraining a circuit judge from punishing for contempt where he is proceeding outside of his jurisdiction or is proceeding erroneously within his jurisdiction. This is no longer an open question, as it was determined in the affirmative in the case of Williams v. Howard, 270 Ky. 728, 110 S.W.2d 661, the basis of the opinion being that where the lower court was about to impose a fine for criminal contempt without jurisdiction, or erroneously within his jurisdiction, the petitioner was without adequate remedy by appeal and would suffer great and irreparable injury.”); Lisanby v. Wilson, 280 Ky. 768, -, 134 S.W.2d 651, 653 (1939) (“Although a judgment punishing one for contempt of court may not be superseded, and this Court on appeal is limited to a determination of whether the penalty was legally imposed or was excessive as distinguished from the question of the appellants' guilt or innocence, this court is authorized by the Constitution, § 110, to issue writs of prohibition, not only where the lower court is proceeding outside of its jurisdiction, but where it is acting within its jurisdiction, though erroneously, and great and irreparable injury will result to the applicant and there exists no adequate remedy by appeal or otherwise. Because of the inadequacy of the remedy by appeal in contempt proceedings, we have not hesitated to issue a writ to prohibit punishment for contempt whenever a proper case for the exercise of this power has been presented to us.” (citation omitted)); Williams v. Howard, 270 Ky. 728,-, 110 S.W.2d 661, 663 (1937) ("An appeal will not lie from a judgment punishing one for criminal contempt except for the purpose of determining whether the punishment imposed is illegal, or excessive, and not for the purpose of retrying the question of contempt. It is clear, therefore, that if the respondent should hold the petitioner guilty of contempt, and fine him $30 or imprison him for not exceeding 30 hours, as he is authorized to do without the intervention of a jury, section 1291, Kentucky Statutes, the petitioner would suffer great and irreparable injury without adequate remedy by appeal.”).

      . Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”); 1976 Ky. Acts ch. 70, § 3("(1) Except as provided in Section 110 of the Constitution, an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in Circuit Court, including a family court division of Circuit Court, unless such conviction, final judgment, order, or decree was rendered on an appeal from a court inferior to Circuit Court.”) (codified as KRS 22A.020(1)); 1976 Ky. Acts ch. 67, § 14 (repealing KRS 21.060, which, at the time, prohibited appeals of contempt findings).

      . See Commonwealth ex rel. Dept. for Natural Res. and Envtl. Prot. v. Williams, 536 S.W.2d 474 (Ky.1976) (holding that original action for a writ against enforcement of a contempt order was not proper because the contempt order was appealable).

      . 474 S.W.2d 372 (Ky.1971).

      . Clements v. Harris, 89 S.W.3d 403, 406 (Ky.2002) (Keller, J. dissenting) (quoting BLACK'S LAW DICTIONARY 857 (7th ed.1999)).

      . 20 AM. JUR. 2D Courts § 54 (1995).

      . Chamblee, 249 S.W.2d at 777.

      . Id.

        .Id.