text:
    Leonard MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-000718-MR.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Ned Barry Pillersdorf, Joseph R. Lane, Pillersdorf, Derossett & Lane, Prestons-burg, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Brian T. Judy, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
   Appellant, Leonard Martin, was convicted of three counts of sexual abuse in the first degree and one count of sodomy in the first degree. The jury recommended a sentence of five years for each count of sexual abuse, for a total of fifteen years, and a sentence of twenty-five years for the sodomy count, the sentences to run concurrently. The court entered a judgment sentencing Appellant to serve twenty-five years. Appellant appeals to this Court as a matter of right, asserting three claims of reversible error: (1) that double jeopardy bars Appellant’s retrial; (2) that the Commonwealth’s use of prior uncharged bad acts were not so similar to warrant their introduction and therefore prejudiced Appellant; and (3) other errors made by the trial court either alone, or cumulatively with the previous errors, so prejudiced Appellant that his conviction should be reversed. Having considered all of Appellant’s claims of error, we affirm the conviction.

Appellant was charged with the sexual abuse and the sodomy of his five year old step-granddaughter L.H. During the Christmas holiday of 2000-01, L.H. visited her biological grandmother and Appellant in Kentucky. Because L.H.’s grandmother became ill, L.H. spent a significant period of time with Appellant. During this time, Appellant sexually abused L.H. on numerous occasions. The incidents were described as consisting of Appellant rubbing L.H.’s private parts with his finger and his penis. Toward the end of L.H.’s visit, the Appellant coerced L.H. into performing oral sex on him. During each incident, L.H.’s grandmother was either asleep or had gone to the store. To induce L.H. to participate, Appellant always promised L.H. ice cream for allowing him to touch her. Following each occurrence, the Appellant warned L.H. that if she told anyone she would get in trouble. When the visit was over, L.H. returned to her home in Michigan. It was not until May of 2001, when another visit for the summer was arranged, that L.H. told her mother of the sexual abuse that had occurred over the last Christmas visit.

L.H.’s mother promptly contacted the Michigan police. Slowly, in bits and pieces, more accounts of sexual abuse were revealed by L.H. Upon being interviewed by authorities, L.H. told of times, prior to her visit to Kentucky, that Appellant had sexually abused her in Michigan. It wasn’t until L.H. and her mother returned to Kentucky to pursue charges against Appellant that L.H. finally informed her mother of the sodomy. In October of 2003 Appellant was tried on three counts of first-degree sexual abuse and one count of first-degree sodomy. That trial ended in a mistrial upon motion by Appellant. When the Commonwealth retried Appellant on all counts the jury returned a guilty verdict and the court imposed a twenty-five year sentence.

I. DOUBLE JEOPARDY

Appellant first argues that he was tried a second time in violation of his rights under the Double Jeopardy Clauses. Appellant did not object prior to commencement of his second trial and he admits that his claim of error is unpreserved. However, double jeopardy questions may be reviewed on appeal despite failure to preserve the issue at trial. And in this case Appellant presents a discrete argument concerning alleged prosecutorial provocation.

Appellant’s first trial came to an abrupt end with the trial court’s declaration of a mistrial. The mistrial was granted following the Commonwealth’s direct examination of witness, David Porter. Porter was called by the Commonwealth as a rebuttal witness to Appellant’s cross-examination of the Commonwealth’s witness, Iris Martin. Martin is the ex-wife of the Appellant and grandmother of the victim, L.H. Martin testified on cross-examination that she filed for divorce after the Appellant was arrested. Martin asserted that she filed her divorce petition before Appellant filed his. Upon this declaration, the defense introduced the Appellant’s divorce petition in order to impeach Martin’s testimony. The petition erroneously showed that Appellant was the first to file. Near the close of the Commonwealth’s case in chief, the Commonwealth put David Porter on the stand. Porter was Iris Martin’s divorce attorney. Through Porter, the Commonwealth presented evidence that Martin did indeed file her divorce petition first. Then, the Commonwealth continued its direct examination, “So if anyone, Mr. Porter, in this trial, including Mr. Patton [the defense attorney], would suggest that Iris Martin did not file for divorce, obviously would that be just completely untrue, patently false?” Mr. Porter responded, “That would be untrue, yes.” The Commonwealth continued, “That would be something that clearly would mislead this jury?” Following this question by the Commonwealth, Appellant’s counsel properly objected and the parties met in judge’s chambers to discuss Appellant’s motion for mistrial based on the Commonwealth’s comment suggesting the defense was misleading the jury. After arguments were heard from both parties, the trial judge ordered a mistrial.

Appellant’s double jeopardy argument is that the Commonwealth’s question, which led to the declaration of the mistrial by the trial court, was overreaching and fundamentally unfair. Appellant asserts that the Commonwealth intended to provoke or goad Appellant into moving for a mistrial because the trial had several potential reversible errors. The Commonwealth argues in response that it was only rebutting an untruthful fact that was presented by Appellant and that there was absolutely no intent to provoke a mistrial.

The double jeopardy rule is that a motion for mistrial by a defendant removes the double jeopardy bar to retrial. However, there exists a limited exception where this bar will not be removed. The exception allows double jeopardy to bar retrial where the prosecutor’s conduct intended to provoke the defendant into moving for a mistrial. “[T]he conduct giving rise to the order of mistrial [must be] precipitated by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court.”

In the case before us, due to the requirement that double jeopardy questions be reviewed even if unpreserved, this Court has reluctantly examined the facts of the first trial in order to discern whether the Commonwealth intended to provoke Appellant into moving for a mistrial. When the mistrial occurred, the Commonwealth had entered its third day of presenting its case in chief. Earlier in the trial, following the cross-examination of Iris Martin, the defense moved for a mistrial based on Martin’s continuous failure to refrain from making statements regarding Appellant’s guilt. The trial judge overruled that motion and strongly admonished the jury to disregard the witness’s comments. The trial judge warned the prosecutor that the issue of a mistrial might have to be revisited. David Porter was the Commonwealth’s seventh and last likely witness. It was then that the Appellant made his second motion for a mistrial. In response to the motion, the Commonwealth defended its “misleading the jury” comment as merely rebuttal and clarification for the jury. The Commonwealth repeatedly apologized if the questioning was interpreted as intentional harassment of the defense. The trial judge’s consideration of this second and final motion for a mistrial was thorough. The trial judge was quite reluctant to grant the motion but expressed the necessity for a mistrial. The trial court based its decision on the line of questioning, the fact the Commonwealth had named the defense attorney, and that the Commonwealth said that this would “clearly mislead the jury.”

The actions taken by the Commonwealth during the questioning of witness David Porter may be described as inappropriate. However, with the proof before this Court, the scale weighs more heavily toward a mistake and not intentional provocation. The conduct by the prosecution does not rise to the level of bad faith, overreaching or such fundamental unfairness as so asserted by the Appellant. There is no indication that the prosecutor did not vigorously resist the defendant’s motion for mistrial or that the trial court found the prosecutor intended to goad the defense. It is implausible to suggest that the Commonwealth intended to provoke a mistrial, not because it knew a conviction could not be obtained, but that a conviction would be obtained with attendant reversible error. Based on the actions by the Commonwealth, Appellant was granted the mistrial the trial court thought he deserved. However, there was no double jeopardy violation.

II. PRIOR BAD ACTS

Appellant’s second argument surrounds the introduction of evidence of pri- or uncharged bad acts. The issue was preserved for review by the Appellant’s pretrial and trial objections. The Appellant asserts that the trial court committed reversible error when it allowed the testimony of T.M. and Lo.H. to be used by the Commonwealth to prove modus oper-andi. The Appellant argues that the incidences involving T.M., Lo.H., and L.H., the victim in this case, were not strikingly similar. Further, he asserts that any facts the Commonwealth describes as strikingly similar would identify a substantial portion, if not the majority, of all cases involving child sexual abuse.

KRE 404(b) provides that evidence of other crimes, wrongs, or acts are not admissible to prove character. However, an exception to this rule is that evidence of other crimes, wrongs or acts may be admitted to show “motive, identity, absence of mistake or accident, intent, or knowledge, or common scheme or plan.” If evidence is offered to show modus operan-di, the facts surrounding the prior bad acts must be so strikingly similar to the charged offense as to show “(1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea.” Whether there exist common facts between the acts is the relevant examination, not whether there was common criminality. The testimony of T.M. and Lo.H. described similar instances of sexual abuse. The prior wrongs and the current charged offenses all involved victims that were: (1) family of the Appellant or his wife at the time of the occurrence; (2) female; (3) between the ages of five to eleven years old at the time of the abuse; (4) under the care of the Appellant when the abuse occurred; (5) alone with the Appellant when no other adults were present or if present, were asleep in' a separate room; (6) bribed with something of importance to a child (money, ice cream, shopping, etc.); (7) abused by similar touching of the vaginal area, always without penetration; and (8) threatened that if they told they would get into trouble. The similarities are akin to the ones described in Commonwealth v. English, in which this Court held that the evidence of prior wrongs was sufficiently similar to the facts related to the victim.

Appellant argues that the dissimilarities between the prior wrongs and those of the victim destroy any similarity that may exist. The dissimilarities include: (1) that the incidents with T.M. and L.H. sometimes occurred while both of those minors were present, while the incidents involving Lo.H. always occurred when no one else was present; (2) that none of the incidents involving T.M. and Lo.H. involved sodomy; and (3) that Lo.H. was bribed with shopping rather than ice cream. Although these dissimilarities do exist, the prior bad acts do not have to be identical to that of the charged offense. The evidence shows sufficient similarity between the occurrences of sexual abuse to establish modus operandi and to satisfy the test of relevancy. Once relevancy is established, evidence of prior sexual misconduct is properly admitted unless the danger of undue prejudice outweighs its probative value. This balancing is within the sound discretion of the trial judge and will not be overturned unless an abuse of discretion can be discerned. “The test of abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Therefore, without further argument by Appellant that the prior wrongs introduced were an abuse of discretion by the trial judge, the testimony of Lo.H. and T.M. was properly admitted.

III. OTHER ERRORS

The final claim of reversible error made by the Appellant involves several other errors that Appellant argues either alone or cumulatively violated Appellant’s right to a fair trial. Those errors include: (1) that specific statements made by T.M. and Lo.H. during their testimony were made for no other purpose than to inflame the jury; (2) that the Commonwealth was improperly allowed to bolster the testimony of L.H. with the testimony of Cassandra Worth, L.H.’s mother, and the testimony of Detective Ken May; (3) that an outburst from the gallery impacted the jury’s decision regarding the penalty; and (4) that the jury was erroneously required to return to deliberations after it had indicated it could not reach a unanimous decision as to the sodomy count. All errors were properly preserved for review either by motion or objection.

In regard to the claim of error that the statement made by T.M. was made only to prejudice the jury against Appellant, it is preserved by means of Appellant’s motion for a mistrial. During direct examination, T.M. responded to a question by the Commonwealth with, “... I don’t want to see anybody get hurt like we did.” The standard of review is whether the trial judge abused his discretion by denying Appellant’s motion for a mistrial. A manifest necessity for a mistrial must exist before it will be granted. The trial judge denied the motion for a mistrial and instead admonished the jury. It is presumed that the jury follows a trial judge’s admonition. Therefore, since Appellant has failed to show any actual prejudice, the trial judge’s denial of the motion for mistrial was correct.

In regard to Appellant’s claim that Lo. H.’s statement was made only to prejudice the jury, it is preserved by means of Appellant’s motion to strike. During direct examination by the Commonwealth, Lo.H. responded to a question with, “I have mixed feelings about being here... but when I found out about my niece and this other little girl, I had to come tell.” The trial judge held that this statement was not to the same degree as the one made by T.M. and therefore overruled the objection and did not admonish the jury. Appellant has failed to show any actual prejudice that was sustained as a result of the trial court’s denial of Appellant’s motion to strike Lo.H.’s statement. Therefore, the trial judge’s ruling on the motion was not error.

Next, Appellant asserts that the testimony by two witnesses improperly bolstered the testimony of L.H. The first witness, Cassandra Worth, L.H.’s mother, was allowed to testify to statements made to her by L.H. in accordance with the prior consistent statements exception to the hearsay rule. A trial judge’s ruling regarding the admissibility of evidence is a discretionary matter and will only be overturned for an abuse of that discretion. A prior consistent statement of a witness may be admitted into evidence if the statement is consistent with the declarant’s testimony and there has been an implied charge of recent fabrication, improper influence or motive. A prior consistent statement is not required to be exactly identical to that of which the declarant testified to. On cross-examination L.H.’s testimony was attacked in part as a recent or improperly influenced fabrication.

Appellant asserts that Worth’s testimony that L.H. had told her, “[P]apaw had f* * *d her” was not consistent with L.H.’s testimony and should have been excluded. After reviewing the record, Worth’s hearsay statement is substantially similar to that of L.H.’s. Although L.H. did not use the same wording during her testimony as she did with her mother, Worth further testified that when L.H. made this statement L.H. didn’t understand what she was saying and upon further discussion of what happened, Worth was able to discern what L.H. was trying to tell her. The trial court interpreted the cross-examination to charge recent fabrication and allowed the prior consistent hearsay statement on that basis. Therefore, without further indication that the trial court abused its discretion by allowing Worth to testify to rebut the attack on L.H., the trial judge’s decision was correct. Moreover, in the context of this case, any error in this regard would be harmless.

Appellant argues that the testimony of Detective Ken May was used to bolster the testimony of L.H. Detective May testified that it was not unusual for children who are victims of sexual abuse to reveal the abuse in bits and pieces. The Commonwealth asserts that Detective May’s testimony was based on his investigative experience in sexual abuse cases. Appellant responds that the record is devoid of any indication that Detective May was qualified as an expert. In overruling Appellant’s objection to Detective May’s testimony, the trial judge held that Detective May could testify to that which was consistent with his training, education, and background, but not to what L.H. had told him. The standard for deciding whether a trial judge correctly found an expert qualified to testify is abuse of discretion. There is no indication from the record that the trial judge abused his discretion. Detective May, as of the time of trial, had four and one-half years experience as a detective assigned to the youth bureau, which deal with crimes involving minors, and had been trained by the State of Michigan to forensically interview child victims. Detective May’s bureau handles approximately one-hundred-and-fifty to two-hundred child sexual abuse cases a year, with May handling approximately forty to fifty cases a year himself. Therefore, the trial judge’s ruling that Detective May was qualified to testify to his experience in child sexual abuse cases was not an abuse of discretion.

Next, Appellant asserts that reversible error was committed by the trial court when it denied Appellant’s motion to discharge the jury. This issue is preserved by means of Appellant’s motion to discharge the jury. During the reading of the guilt phase verdict, crying was heard from the courtroom gallery. Appellant argues that the outburst impacted the decision of the jury as to the Appellant’s punishment. In denying Appellant’s motion, the trial judge said that the cry from the audience was more like a sob. Additionally, the jury returned a verdict of only twenty-five years when the possibility of life in prison was available. There was no prejudice.

Appellant asserts that reversible error was committed by the trial court when it ordered the jury to return to deliberations after the jury wrote a note stating it could not come to a unanimous vote on the sodomy count and asked for additional instruction. The judge held that since the trial had continued for three days and the jury had only been out less than an hour that further deliberation would be helpful. RCr 9.57(1) authorizes a trial judge to find further deliberations may be useful based on the circumstances. As in Commonwealth v. Mitchell, the jury had only conferred for a short time and this was its first question. Again as in Mitchell, the jury only indicated it was divided, not deadlocked. Upon the jury’s request for further instruction, the trial judge properly ordered the jury to return to continue deliberations.

Finally, Appellant argues that the accumulation of errors requires reversal. However, even if Appellant’s arguments have merit, which this Court does not find, the jury’s recommended sentence, along with the significant amount of evidence presented by the Commonwealth, indicates that no prejudice existed as to warrant a new trial. “A defendant is not entitled to a perfect trial, but only a fair one.”

The judgment is affirmed.

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

COOPER, J., concurs in result only.

      . KY. CONST. § 110(2)(b).

      . L.H. is a minor and therefore her initial will be used.

      . KY. CONST. § 11; U.S. CONST, amend. V.

        . Beaty v. Commonwealth, 125 S.W.3d 196, 210 (Ky.2003); Baker v. Commonwealth, 922 S.W.2d 371, 374 (Ky.1996); Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky.1977) ("failure to preserve this issue for appellate review should not result in permitting a double jeopardy conviction to stand”).

      . Stamps v. Commonwealth, 648 S.W.2d 868, 868 (Ky.1983) (citing Commonwealth v. Lewis, 548 S.W.2d 509, 510 (Ky.1977); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)); United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (if defendant "requested a mistrial ..., there would be no doubt that if he had been successful, the government would not have been barred from retrying him,").

      . Stamps, 648 S.W.2d at 869.

      . Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Stamps, 648 S.W.2d at 869.

      . Tinsley v. Jackson, 771 S.W.2d 331, 332 (Ky.1989) (citing United States v. Love, 597 F.2d 81 (6th Cir.1979), and United States v. Larry, 536 F.2d 1149 (6th Circ.1976), and Tamme v. Commonwealth, 759 S.W.2d 51 (Ky. 1988)).

      . Beaty, 125 S.W.3d at 210 (We address it under the authority of Sherley, 558 S.W.2d at 618 "Failure to preserve this issue for appellate review should not result in permitting a double jeopardy conviction to stand”); Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky.1978); Baker v. Commonwealth, 922 S.W.2d 371, 374 (Ky.1996); and Butts v. Commonwealth, 953 S.W.2d 943, 944-45 (Ky.1997).

        . Faulkner v. Commonwealth, 423 S.W.2d 245, 248 (Ky.1968) (citing Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948, 951 (1944) ("while [a prosecuting attorney] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”)).

      . T.M. is a minor and therefore her initials will be used.

      . Lo.H. was a minor at the time of the abuse and therefore her initial will be used.

      . KRE 404(b)(1); Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985).

      . Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing Billings v. Commonwealth, 843 S.W.2d 890, 891 (Ky.1992); Adcock v. Commonwealth, 702 S.W.2d 440 (Ky.1986)).

      . Lear v. Commonwealth, 884 S.W.2d 657, 659 (Ky.1994); Billings, 843 S.W.2d at 892.

      . 993 S.W.2d at 945 (holding sufficiently similarity existed on only five similar characteristics: (1) the victims were prepubescent females; (2) the familial relationship to each victim; (3) Each incident occurred while the victim was a visitor to Appellant's home and took place on a couch or chair; (4) Each incident occurred while the Appellee’s wife was present in the home; and (5) each incident consisted of Appellee touching the victim's vaginal area.)

      . KRE 403; English, 993 S.W.2d at 945.

      . Id., at 945 (citing Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky.1970); R. Lawson, The Kentucky Evidence Law Handbook, § 2.10 III, at 59-60 (4th ed. LexisNexis 2003)).

      . English, 993 S.W.2d at 945 (citing 5 Am. Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994)).

      . Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky.2002) (citing Gould v. Charlton Co., Inc., 929 S.W.2d 734 (Ky.1996)).

      . Maxie, 82 S.W.3d at 863.

      . Maxie, 82 S.W.3d at 863 (citing Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky.1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997), cert. denied, 523 U.S. 1052, 118 S.Ct. 1374, 140 L.Ed.2d 522 (1998)).

      . KRE 103(a)(1)

      . KRE 801(a)(2)

      . English, 993 S.W.2d at 945.

      . KRE 801(a)(2)

      . United States v. Vest, 842 F.2d 1319 (1st Cir.1988).

      . Fugate v. Commonwealth, 993 S.W.2d 931, 933 (Ky.1999); Gorman v. Hunt, 19 S.W.3d 662, 665 (Ky.2000); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . KRE 702; FRE 702; Satcher v. Honda Motor Co., 52 F.3d 1311, 1314 (5th Cir.1995) (holding a policeman with 29 years of experience in investigating motorcycle accidents).

      . 943 S.W.2d 625, 627 (Ky.1997).

      . Murray v. Commonwealth, 473 S.W.2d 150, 152-53 (Ky.1971) (citing See Wright v. Commonwealth, 455 S.W.2d 561 (Ky.1970)).

        . U.S. v. Dempsey, 830 F.2d 1084, 1088 (10th Cir.1987).


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. Joscelyn FUARTADO, et al., Appellees.
    No. 2003-SC-1022-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Gregory D. Stumbo, Attorney General, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellant.
    Joseph Ray Myers, Assistant Public Advocate, Department of Public Advocate, Frankfort, David E. Funke, Crestwood, for Appellees.
   GRAVES, Justice.

Appellee, Joscelyn Fuartado, is a native and citizen of Jamaica. This Court granted discretionary review to determine whether failure of defense counsel to advise Appellee of potential deportation consequences is cognizable as a claim for ineffective counsel. In a decision designated for publication, a Court of Appeals panel vacated the trial court’s denial of Appel-lee’s post conviction relief from a 1997 guilty plea to marijuana trafficking. The trial court ruled that criminal defendants must be advised regarding direct but not collateral consequences of a guilty plea. It reasoned that since a federal civil immigration proceeding such as a deportation is clearly collateral as to guilt and outside the trial court’s control or responsibility, failure of defense counsel to advise Appellee of potential deportation consequences is not cognizable as a claim for ineffective counsel. We agree and accordingly, we reinstate the judgment of the trial court.

In 1997, Appellee was indicted for the Class C felony of first-degree marijuana trafficking. By a counseled plea bargain, the charge was reduced to second-degree marijuana trafficking, a Class D felony. Appellee was probated for five years with ninety (90) days to serve on work release. Within days after entry of final judgment, Appellee was charged with another Class D felony, second-degree escape, to which he pled guilty and was given a one-year sentence, probated for five years. Appel-lee failed to appear when the Commonwealth moved to revoke his probation. A bench warrant was issued for his arrest.

Within months, Appellee was arrested for automobile theft. At the time of this felony arrest, Appellee had failed to report to his probation officer, changed his address without permission, absconded supervision, taken up residence with a convicted felon, and admittedly abused cocaine. A second bench warrant was issued. Less than six months after the sentence had been imposed, Appellee’s probation on his marijuana trafficking sentence was revoked.

The following year, the United States Immigration and Naturalization Service formally notified Appellee of its intention to deport him back to his native Jamaica because of his marijuana trafficking conviction. Approximately two years later, Appellee filed a pro se motion for RCr 11.42 relief to challenge the voluntariness of his guilty plea to marijuana trafficking as supplemented with the assistance of counsel. Appellee asserted that his guilty plea had been entered involuntarily because neither the trial court nor his defense counsel had informed him that deportation was a consequence of guilt. The trial court denied relief.

On appeal of the denial of his RCr 11.42 motion, a Court of Appeals panel vacated and remanded Appellee’s case for an evi-dentiary hearing on counsel ineffectiveness. The Court of Appeals panel held that while deportation potential is a collateral consequence that does not need to be mentioned by the trial court during a guilty plea colloquy, the failure of defense counsel to mention deportation potential to his or her client prior to a guilty plea colloquy may be counsel ineffectiveness of constitutional dimension. We disagree and hold that advising criminal defendants regarding the collateral consequences of a guilty plea is outside the scope of representation required under the Sixth Amendment.

In this case, it is undisputed that there is no constitutional requirement for trial courts to advise criminal defendants regarding collateral consequences that may result from a conviction before accepting a guilty plea and that deportation is such a collateral consequence. See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir.2002). Appellee claims, instead, that the Sixth Amendment requires criminal defense attorneys to investigate their clients’ civil immigration status and to advise them of any potential consequences a guilty plea could have on that status. However, as noted in the Court of Appeals’ opinion, “several federal and state courts have taken the opposite position, holding that a defendant cannot as a matter of law succeed on a claim for ineffective assistance of counsel by showing that his attorney failed to inform him of the possibility of deportation following a guilty plea.” See, e.g., United States v. Fry, 822 F.3d 1198, 1200 (9th Cir.2003); United States v. Couto, 311 F.3d 179, 187 (2nd Cir.2002); United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir.2000); United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989); United States v. George, 869 F.2d 333, 337 (7th Cir.1989); United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir.1985); Chukwurah v. United States, 813 F.Supp. 161, 165 (E.D.N.Y.1993); People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268 (1995). In fact, in Fry, the United States Court of Appeals for the Ninth Circuit stated in rather sweeping terms, “All other circuits to address the question have concluded that deportation is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel.” 322 F.3d at 1200.

The reasoning behind these opinions derives from the fact that a defendant’s Sixth Amendment right to counsel encompasses criminal prosecutions only, and does not extend to requiring counsel on collateral consequences that may result from such proceedings. Cf. Turner v. Commonwealth, 647 S.W.2d 500, 500-501 (Ky.App.1982) (“A guilty plea that is brought about by a person’s own free will is not less valid because he did not know all possible consequences of the plea and all possible alternative courses of action.”). “[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The constitutional requirement of effective assistance of counsel, therefore, extends to and encompasses only those activities which tend to protect a criminal defendant’s right to a fair and intelligent determination of guilt or innocence. See id. at 686, 104 S.Ct. 2052 (“In giving meaning to the requirement [of effective assistance of counsel], ... we must take its purpose-to ensure a fair trial-as the guide.”); McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970) (since a guilty plea is also a waiver of trial, it is endowed with certain constitutional protections.)

In cases where defendants are agreeing to plead guilty in accordance with a plea bargain, this principle of protecting a criminal defendant’s right to be fairly tried and justly convicted is extended to include investigating and advising the criminal defendant on all aspects of the plea and the direct consequences thereof — such as the sufficiency of the evidence supporting the plea, the availability of substantial defenses, the loss of several fundamental constitutional rights, and the punishment that may be imposed by the trial court. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (defendant must be “fully aware of the direct consequences” of a guilty plea) (emphasis added); Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974) (setting forth standards for effective assistance of counsel). The existence of collateral consequences is irrelevant to the determination of a defendant’s guilt or innocence and completely outside the authority or control of the trial court. Accordingly, we find, along with the majority of other courts determining the issue, that the Sixth Amendment requires representation encompassing only the criminal prosecution itself and the direct consequences thereof. Because the consideration of collateral consequences is outside the scope of representation required under the Sixth Amendment, failure of defense counsel to advise Appellee of potential deportation consequences was not cognizable as a claim for ineffective assistance of counsel.

The opinion of the Court of Appeals is reversed; and the judgment of the trial court is reinstated.

All concur.

      . The Court of Appeals euphemistically characterizes the two subsequent felony commissions and parole violations as "a variety of activities.”


text:
    Cindy MIFFLIN (as Executrix of Estate of Charles R. Mifflin); et al., Appellants, v. Laura MIFFLIN, Appellee.
    No. 2003-SC-000857-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Richard C. Roberts, Whitlow, Roberts, Houston & Straub, Paducah, Counsel for Appellants.
    Willard B. Paxton, Paxton Law Office, Princeton, Counsel for Appellee.
   GRAVES, Justice.

We granted discretionary review in this matter to determine whether twenty-eight seconds of videotaped trial record is a legally sufficient designation of the record on appeal.

This dispute involves the estate of Charles R. Mifflin, who died testate in June 1998. The residuary beneficiaries of Mr. Mifflin’s will were his widow, Appellee (Laura Mifflin), and his two daughters, Appellants (Cindy and Debbie Mifflin). Appellee was to receive the income from the estate assets. Cindy Mifflin was designated as the executrix.

The estate was probated in the Livingston District Court. Appellee filed an action in Livingston Circuit Court challenging the probate proceeding and the distribution of assets. The trial court referred the matter to a Special Commissioner. After conducting hearings and taking evidence, the Special Commissioner rendered his Report and Recommendations. The trial court accepted most of the Special Commissioner’s recommendations and issued a Final Order and Judgment.

Appellants filed a Motion to Correct Final Order and Judgment pursuant to CR 60.02. One of the errors that Appellants alleged in the Motion was that the calculations involving a bank account, referred to as the Mifflin and Associates bank account (hereinafter “M & A”), were incorrect. This bank account was owned by Mr. Miff-lin and was not mentioned in the will. Appellee had access to this account, and continued to use it after Mr. Mifflin’s death by depositing her personal funds into the account and writing checks on the account for both personal and estate purposes. In the Motion, Appellants alleged that, in their calculations, the commissioner and trial judge improperly treated the M & A account as a joint account owned by Appellee. The trial judge denied the Appellants’ motion on this issue.

Appellants raised the issue regarding the M & A account calculations to the Court of Appeals. Appellants argued that the residuary estate owned the M & A account, but the trial court based its monetary calculations on the mistaken assumption that Appellee owned the account. In doing so, Appellants claimed that the estate was erroneously charged with money spent for the benefit of the M & A account. Appellee argued that Appellants, who designated only twenty-eight seconds of videotaped trial record on appeal, had not designated enough of the record to resolve the issue. Appellee did not designate any portion of the record on appeal, and argued that, as a rule of law, the Court of Appeals should assume that any undesignated portions of the record supported the judgment of the trial court. The Court of Appeals affirmed the judgment of the trial court, stating that, without the benefit of the trial record and only twenty-eight seconds of videotaped record, it did not have a basis to conclude that the trial court had erred. We granted review.

Appellant claims that no specific findings were made at trial regarding ownership of the M & A account because ownership was never a contested issue before the trial court. Appellant argues that Ap-pellee admitted that the estate owned the M & A account in an affidavit, and Appel-lee’s attorney took this position both in writing and orally at trial. The twenty-eight seconds of record that Appellants designated on appeal was a statement from Appellee’s attorney before the Special Commissioner. Appellee’s attorney stated that the M & A bank account belonged one-third to Laura Mifflin, one-third to Cindy Mifflin, and one-third to Debbie Mifflin.

CR 75.01 requires an appellant to designate any untranscribed material that the appellant wishes to be included in the record on appeal. One purpose of CR 75.01 is to eliminate unnecessary portions of the record on appeal. See Burberry v. Bridges, 427 S.W.2d 583 (Ky.1968) (“The use of [CR 75.01] would allow for the use of partial records on appeal, which has been encouraged by this court.”); see also Oldfield v. Oldfield, 663 S.W.2d 211 (Ky.1983); Seale v. Riley, 602 S.W.2d 441 (Ky.App.1980). Oldfield and Seale both held that it is improper for an appellant to designate “the entire trial court record” on appeal.

Appellee concedes that she may designate any additional portions of the record. However, she argues that she may also elect not to file additional designations, and as a matter of law, the reviewing court is to assume that any portions of record that are not designated support the findings of the trial court. Appellee relies upon Colonial Life and Accident Insurance Co. v. Weartz, 636 S.W.2d 891 (Ky.App.1982).

In light of the evidence presented at trial, and CR 75.01, we find that the twenty-eight seconds of record was a legally sufficient designation of the record on appeal. Ownership of the M & A account was never an issue before the trial court, and therefore there was no evidence and testimony taken directly to this regard. As a result, the twenty-eight seconds of record is the only portion of the record that addresses ownership of the account. To designate additional portions of the record that do not address the ownership issue would be improper under CR 75.01.

Here, the designated portion of the record reflects an admission by Appellee’s attorney that the M & A account was to be divided equally among the parties, indicating his position that the account was part of the residuary estate, and not owned by Appellee. In addition, in her Complaint to the trial court, and in a sworn affidavit, Appellee makes references to the fact that the M & A account was to be divided three ways. We find that this evidence is sufficient to support a conclusion that the M & A account was in fact a part of the residuary estate.

In accordance with CR 75.01, we hereby overrule Colonial Life, supra, to the extent that it requires appellate courts to assume as a matter of law that undesig-nated parts of the record support the findings of the lower court in light of evidence presented by an appellant that is adequate to support a conclusion to the contrary. When an appellant has designated part of the record for appeal that is sufficient to support a conclusion of error by the trial court, the appellee must also designate portions of the record in support of her position. Appellee in the instant case has not put forth evidence to demonstrate that she owned the M & A account.

We remand this matter to the Court of Appeals for further proceedings consistent with this opinion.

All concur.


text:
    Harold Dale COX, Appellant, v. Shannon Kay COX (Now Esslinger), Appellee.
    No. 2003-SC-0706-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Paul V. Hibberd, Pregliasco Straw-Boone, Louisville, Counsel for Appellant.
    Adam Clayton Miller, Danville, Counsel for Appellee.
   GRAVES, Justice.

This case involves the registration and enforceability of a Texas judgment as a “foreign judgment” under the Uniform Enforcement of Foreign Judgments Act (UEFJA), KRS 426.950-426.975. Appellant, Harold Dale Cox, and Appellee, Shannon Cox Esslinger, married in Texas in July 1998. The parties subsequently moved to Danville, Kentucky, where they purchased property. Appellee remained in Kentucky until July 15, 2000, when she relocated to Texas. On January 19, 2001, Appellee filed an original Petition for Divorce in the District Court of Smith County, Texas.

Appellant received via United States mail a Texas Citation for Personal Service Decree, and was personally served with notice in Danville by a Boyle County Deputy Sheriff. Appellant did not respond to the Petition for Divorce. The District Court of Smith County, Texas, entered a Final Decree of Divorce on October 2, 2001. The Decree divided the marital estate and returned to the parties their non-marital assets. The Decree also granted an equitable lien in favor of Appellee in the amount of $87,079.72. The lien was assessed against the real and personal property held by Appellant in Boyle County, Kentucky.

On December 7, 2001, Appellee filed a Notice and Affidavit of Foreign Judgment in the Boyle Circuit Court. In response, Appellant filed a Motion to Dismiss, Alter, Amend or Vacate. The trial court denied Appellant’s motion. Appellee then filed a Motion for Enforcement of Foreign Judgment, which the trial court granted in an order entered on June 20, 2002. The Court of Appeals affirmed the trial court’s order. We granted review.

I.

Appellant argues that the trial court abused its discretion by authenticating a Texas judgment imposing a financial burden on him when the Texas court lacked in personam jurisdiction to do so. Appellant claims that in personam jurisdiction could have been established by the State of Texas only if he established minimum contacts with Texas such that the entry of a judgment did not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Appellee argues that the Texas judgment should be afforded full faith and credit under the UEFJA. Appellee also argues that Appellant should have raised and preserved the jurisdiction issue before the Texas trial court, and by failing to do so, he purposefully availed himself to the jurisdiction of that court.

The case requires us to review some fundamental principles of civil procedure regarding in personam jurisdiction. In Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), the United States Supreme Court held that, under the Due Process Clause, a state cannot assert in personam jurisdiction over a defendant unless that defendant was personally served with process in that state, or voluntarily appeared before the court. Id. at 733.

International Shoe Co., supra, expanded the personal jurisdiction reach of courts beyond the rule enunciated in Pen-noyer. The Court held that even when a defendant is not served within the forum state, due process is satisfied when the state subjects a non-resident defendant to in personam jurisdiction so long as the defendant has certain minimum contacts with the state, and the assertion of jurisdiction does not offend traditional notions of fair play and substantial justice. Id. at 316, 66 S.Ct. 154. The Court discussed several factors to be considered in evaluating whether minimum contacts exist. These factors include: the quantity and quality of the activities; whether the activities of the defendant were continuous and systematic; whether the defendant availed himself of the benefits and protections of the laws of the forum state; and whether the defendant’s activities in the state gave rise to the cause of action. Wilson v. Case, 85 S.W.3d 589, 592-93 (Ky.2002)(citing International Shoe Co., supra).

Since International Shoe Co., supra, the United States Supreme Court has applied and elaborated upon its test in a wide range of cases. See Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)(in a child custody dispute, a state could not exercise personal jurisdiction over a nonresident merely because he acquiesced in his daughter’s desire to live with her mother in the forum state); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (due process analysis of personal jurisdiction includes defendant’s ability to foresee being hauled into court in a forum state); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ”)

In Wilson, supra, this Court applied a three-part personal jurisdiction test from the Sixth Circuit case Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968). This test has previously been used by the Court of Appeals on numerous occasions. See e.g., Tube Turns Division of Chemetron Corp. v. Patterson Co., Inc., 562 S.W.2d 99 (Ky.App.1978). We will again use this three-part analysis, as it provides a straightforward method of applying a vast body of case law regarding personal jurisdiction. The test follows:

The first prong of the test asks whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state. The second prong considers whether the cause of action arises from the alleged in-state activities. The final prong requires such connections to the state as to make jurisdiction reasonable.

Wilson, supra, at 593. In order to find jurisdiction, all three prongs of this test should be satisfied. Id.

We find that none of the three prongs of the test were satisfied, and therefore, we hold that the Texas court did not have personal jurisdiction over Appellant. Although the parties met and married in Texas, this contact alone is not sufficient for the Texas court to establish personal jurisdiction over Appellant. The parties established their marital domicile in Kentucky immediately after their marriage. There is no evidence that Appellant had any contact with the state of Texas after his move to Kentucky, and the lien at issue was placed upon Appellant’s property in Kentucky. In sum, Appellant did not have minimum contacts with the state of Texas.

We also reject Appellee’s argument that Appellant waived his right to contest Texas jurisdiction by failing to raise this issue before the Texas court. Because the Texas court lacked personal jurisdiction over Appellant, it is irrelevant to us whether or not Appellant preserved this issue before the Texas court. Even if the state of Texas has a waiver provision regarding jurisdiction, this Court would not be bound by such a provision.

Because the Texas court was without jurisdiction to impose a hen on property located in Kentucky, its judgment regarding the hen was not a “foreign judgment” under the UEFJA, and is therefore not entitled to full faith and credit. The orders of the Boyle Circuit Court are reversed, and the registration and enforceability of the Texas Decree of Divorce is vacated to the extent that it imposes personal obhgations against Appellant.

This matter is remanded to the Boyle Circuit Court for entry of orders consistent with this opinion.

LAMBERT, C.J., concurs in result only.

COOPER, GRAVES, JOHNSTONE, ROACH, SCOTT and WINTERSHEIMER, J.J., concur.

      . Although the Texas court does not need personal jurisdiction over Appellant to render the divorce decree alone, it must have such jurisdiction to adjudicate rights and obligations that are incidents of marriage. See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).


text:
    Patrick Cornelius MOODY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-0341-MR.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Willie E. Peale, Jr., Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, James Havey, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   GRAVES, Justice.

A jury of the Christian Circuit Court convicted Appellant of First Degree Trafficking in a Controlled Substance, First Offense, Cocaine, and of being a First Degree Persistent Felony Offender for which he was sentenced to a total of twenty years imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm Appellant’s convictions.

On November 9, 2001, Appellant was alleged to have been videotaped by a confidential informant who was working for the Hopkinsville Police Department. The informant testified that she bought crack cocaine from Appellant. The detective who employed the informant stated that she left with cash and returned with crack cocaine. He also testified that he searched the informant and her van prior to giving her money to buy drugs and that he maintained eye contact with the informant up to the point when she entered the targeted residence. Other witnesses also testified for the Commonwealth and their testimony will be recounted herein as necessary.

Appellant testified on his own behalf, stating that when the informant entered the residence, he was breaking up buds of marijuana in a bag. He testified that while he was doing this, he answered his cellular telephone and as he was talking to the caller, the informant took some of the buds. He did not recall her leaving any money. Appellant’s companion at the time of the incident, Melvin Dixon, testified that Appellant did not have crack cocaine on his person the day he was alleged to have sold it to the informant.

The jury returned verdicts of guilty on both counts submitted to it. Appellant asserts several assignments of error upon which he requests relief. We address each assignment of error in turn.

I. ALLEGED VIOLATIONS OF DISCOVERY ORDER

Appellant first asserts several errors regarding alleged violations of the trial court’s discovery order in this case. He contends the trial court erred when it failed to grant him a thirty-day extension of time or, alternatively, to dismiss the indictment as a sanction for the Commonwealth’s failure to timely disclose the identity of the confidential informant pursuant to a previously issued discovery order.

Upon Appellant’s request, the previously issued discovery order directed the Commonwealth to disclose the identity of the confidential informant at least thirty days prior to trial. The prosecutor argued that he sent a written memorandum to Appellant’s counsel shortly after the discovery order was entered (approximately six months prior to trial) disclosing the informant’s identity in another case. It was at that time, the prosecutor stated, that he verbally informed Appellant’s counsel that she was also the informant in Appellant’s case. Appellant’s counsel stated that he did not recall having any discussions with the prosecutor regarding this case during the past six months and first recalled being told the name of the confidential informant the Friday before the trial was scheduled to start on a Monday morning. The trial court determined that both sides were at fault and decided to grant Appellant, who had requested a thirty-day extension, a three-day extension of time in order to perform any additional investigation regarding the identity of the confidential informant.

The parties returned three days later, and on that morning Appellant filed a pro se motion to dismiss the indictment. Appellant stated that he asked his attorney thirty days prior to trial for the identity of the informant and the attorney stated that he had not yet been provided with the informant’s name. Appellant alleged the information was knowingly withheld by the prosecutor, which the prosecutor denied. Appellant’s counsel conceded that he did not contact the prosecutor to follow up on the discovery order thirty days prior to trial, but stated that it was incumbent upon the Commonwealth to furnish the informant’s identity pursuant to his initial request without further prompting by defense counsel. At this time, the trial judge summarized both parties’ versions of what happened and made a finding that the prosecutor had indeed informed Appellant’s counsel of the informant’s identity six months prior and that such notice was sufficient to comply with his discovery order.

Appellant’s primary argument is that the trial court erred when it determined that the Commonwealth actually disclosed the information thirty days prior to trial. A trial court’s findings of fact regarding motions by the parties are reviewed pursuant to a clearly erroneous standard. CR 52.01. CR 52.01 states that “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” In this case, the trial court made a credibility determination regarding whether the prosecutor actually informed Appellant’s counsel regarding the informant’s identity despite the attorney’s inability to recollect the conversation. The trial court determined that he did and we, in turn, find no clear error in this determination.

The trial court also concluded that, under the circumstances, such verbal disclosure was sufficient to comply with the discovery order’s notice requirement. Appellant does not present any contrary arguments regarding this conclusion and as such, for the purposes of this appeal, we will assume the trial court’s conclusion was correct. See Elwell v. Stone, 799 S.W.2d 46, 48 (Ky.App.1990) (declining to address any issues not presented in accordance with CR 76.12(4)(c)). Given the trial court’s undisputed conclusion that verbal disclosure was sufficient to satisfy his discovery order’s notice requirement, we find no basis for Appellant’s motion to dismiss the indictment due to the Commonwealth’s failure to comply with the discovery order.

Appellant argues the trial court abused its discretion, nonetheless, when it refused to grant him a trial continuance beyond three days in order to further investigate the informant’s background. See RCr 9.04 (“granting of a [trial] continuance is in the sound discretion of the trial judge”). Specifically, Appellant contends he was prejudiced because he did not have enough time to investigate the informant’s criminal record or to investigate the existence of any deals or agreements she might have made with the prosecutor. Despite his counsel’s failure to remember his conversation with the prosecutor or to follow up earlier regarding the informant’s identity, the record indicates that Appellant’s attorney had been familiar with this particular informant for more than six months (due to her involvement in another case). Further, the prosecutor stated that no deals or agreements had been made with the informant other than receiving financial compensation for participating in the “controlled buys.” After considering the totality of the circumstances, we find no abuse of discretion by the trial court when it refused to grant a longer continuance. Likewise, we also reject Appellant’s argument that this situation constituted prosecutorial misconduct which rises to the level of depriving him of a fair trial. Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky.2001) (“Any consideration on appeal of alleged prosecutorial misconduct must center on the overall fairness of the trial.”)

Appellant also argues that another provision of the discovery order was violated when Appellant was not given the opportunity to view the videotape until three days before the actual trial. This argument was not raised before or ruled on by the trial court and accordingly, we will not address it. Commonwealth v. Maricle, 15 S.W.3d 376, 380 (Ky.2000).

Appellant lastly argues that the accumulated errors claimed above, along with other perceived errors claimed during the pendency of the trial, justified a mistrial. “A defendant’s motion for a mistrial should only be granted where there is a manifest necessity for such an action or an urgent or real necessity.” Gosser v. Commonwealth, 31 S.W.3d 897, 906 (Ky.2000) (quotation and citation omitted). We find no abuse of discretion in the trial court’s denial of Appellant’s mistrial motion at the start of trial.

II. SUFFICIENCY OF THE EVIDENCE

Next, Appellant argues there was insufficient evidence to convict him of being a persistent felony offender pursuant to KRS 532.080. Specifically, he contends the Commonwealth failed to prove that he was over the age of eighteen at the time the prior offenses were committed and that the outcome of the fact situation in this case is directly controlled by the holding in Hon v. Commonwealth, 670 S.W.2d 851 (Ky.1984). We disagree.

In Hon, the Commonwealth attempted to prove the defendant was over the age of eighteen at the time a prior offense was committed by submitting evidence of the following: (1) the defendant’s birth date; and (2) the year of the prior conviction. Id. at 852. This evidence established that the defendant was twenty-two years old at the time of his prior conviction. Id. Pursuant to Kendricks v. Commonwealth, 557 S.W.2d 417 (Ky.1977), the Commonwealth argued that since he was twenty-two years old at the time of his prior conviction, it could be reasonably inferred by the jury that he was over the age of eighteen at the time the underlying offense was committed. Id. This Court overruled Kendncks, holding that such indirect evidence was not sufficient to prove the age element of KRS 532.080. Id. at 853. Rather, the Hon Court ruled that “in a proceeding under the persistent felony offender statute, the Commonwealth must prove by direct evidence that the defendant was at least eighteen years old at the time he committed the previous offenses ....” Id. (emphasis added).

However, sixteen years later, this Court overruled the strict direct evidence standard of proof enunciated in Hon and reinstated the general standards set forth in Kendricks. Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.2000). Accordingly, it is now acceptable for an offender’s age at the time he committed prior offenses to be proven by both (1) direct evidence; and (2) indirect evidence so long as the indirect evidence is sufficient to create a reasonable inference that the offender was eighteen at the time he committed the underlying offense. Id.

In this case, Appellant simply states that the Commonwealth attempted to prove his age by submitting a certified copy of a judgment of conviction which contained his birth date and the date of conviction. He argues that such evidence is per se insufficient, pursuant to Hon, to prove his age at the time he committed the underlying offense. We disagree. As we just explained, Hon was overruled to the extent that it required direct evidence regarding proof of age at the time the offender committed the underlying offense. Accordingly, such indirect evidence can be sufficient to withstand a motion for directed verdict so long as it meets the minimum standards of proof set forth in Kendricks (which is simply the standard of proof for determining the sufficiency of the evidence in any criminal case, see Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991)). Pursuant to the general standards re-established in Martin, we must review the evidence in each case to determine whether it is sufficient, when considered in the light most favorable to the Commonwealth, for a reasonable jury to fairly find guilt beyond a reasonable doubt. Benham, supra, at Id.; see also Howell v. Commonwealth, 163 S.W.3d 442, 448 (Ky.2005).

Yet, once again, neither the Commonwealth nor Appellant saw fit to designate the certified judgments for our review as part of the record in this appeal. In Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky.1985) this Court warned:

We will not engage in gratuitous speculation as urged upon us by appellate counsel, based upon a silent record. It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.

Accordingly, because we are provided with no evidence to suggest otherwise, we will assume the judgments do create a reasonable inference that Appellant was eighteen at the time he committed the prior offenses.

Moreover, despite the absence of this evidence in the appellate record, Appellant himself testified at trial, admitting that he had been convicted of three prior felonies in federal court and stating that the felonies stemmed from activities which occurred between the years 1990 and 1999. The Christian Circuit Court judgment in this ease indicates that Defendant’s date of birth is December, 1970, and thus, by Appellant’s own testimony, the earliest felony occurred no earlier than 1990, when he was nineteen or twenty years old. This evidence alone, without consideration of the certified judgments not contained in the appellate record, is sufficient to support a reasonable inference that Appellant was at least eighteen years old at the time the prior felonies were committed.

Appellant also argues there was insufficient evidence to support his conviction for trafficking in cocaine. The standard for determining the sufficiency of the evidence in a criminal case is set forth in Benham, supra. After careful review, we believe the record before us is sufficient to support Appellant’s conviction for trafficking in cocaine.

III. TESTIMONY OF KATHY HOLLENBECK

Appellant next submits he was denied his right of confrontation pursuant to both the United States and Kentucky Constitutions. During the penalty phase of the trial, the Commonwealth called Kathy Hollenbeck, Appellant’s federal probation officer. The Commonwealth told the jury that because she worked for a United States district judge, she was prohibited by the judge from testifying about any matter other than Appellant’s release date from federal custody. Accordingly, her testimony on direct examination was limited to stating Appellant’s release date from federal custody. In lieu of asking any questions upon cross-examination, Appellant’s counsel moved to strike Ms. Hollen-beck’s testimony as a Confrontation Clause violation due to its limited scope as declared by the Commonwealth. The prosecutor argued that Appellant was not barred in any way from asking the witness questions, but that he would simply object for the record. Appellant’s counsel stated that asking questions in that situation would be pointless. The trial court overruled Appellant’s motion to strike.

“The trial court’s decision whether to strike all or part of the witness’s testimony is reviewed for abuse of discretion.” Adkins v. Commonwealth, 96 S.W.3d 779, 789 (Ky.2003). Our rules provide that a trial judge may limit cross-examination with respect to those matters not testified to on direct examination. KRE 611. “When cross-examination is precluded only with respect to collateral issues, the Sixth Amendment does not require the court to strike the witness’s testimony.” Combs v. Commonwealth, 74 S.W.3d 738, 744 (Ky.2002). First, we note that cross-examination was not at all denied to Appellant in this case, and if it was, it was denied only with respect to collateral issues unrelated to those which were testified to on direct examination. Second, we find nothing apparent on the record to lead us to believe that the trial court abused its discretion in failing to strike the witness’s limited testimony or that the “truth-seeking function of the court” was impaired in anyway. Id. at 743. As such, we find no abuse of discretion by the trial court regarding its refusal to strike Ms. Hollenbeck’s testimony.

IV. ADMISSION OF CERTIFIED COPY OF FEDERAL JUDGMENT

Finally, Appellant contends the trial court erred when it admitted into evidence a copy of a judgment of conviction from the United States District Court of Virginia which was certified as a true copy by the United States District Court of Padu-cah. He argues the document does not meet the requirements of KRE 902 or RCr 9.44 which require official documents to be certified by an official having legal custody of the record. We do not have enough evidence in the appellate record before us to determine whether the United States District Court of Paducah had legal custody over records generated by the United States District Court of Virginia. See our discussion in Part II, supra. However, even if the document’s admission was in error, the error was harmless since there was sufficient proof that Appellant was convicted of two other prior felonies. See KRS 532.080(3) (requiring proof of only two prior felonies in order to satisfy a conviction for persistent felony offender in the first degree).

For the reasons set forth above, the judgment of the Christian Circuit Court is affirmed.

All concur.

      . Notably, neither Appellant nor the Commonwealth designated the videotape as part of the record on appeal. Since neither party found it necessary for us to view or consider this tape, we will presume the videotape is not essential to this decision and accordingly, will not consider it as substantive evidence for the purposes of this appeal. See CR 75.01 and CR 75.05 ("No party shall designate any matter not essential to the decision of the questions presented by the appeal.”); see also, Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 723 (Ky.App.1992) (court would be unable to determine issue where parties failed to designate essential evidence for the appellate record.).

      . We note that Kendricks simply utilized the standard of proof necessary to withstand a directed verdict of acquittal, recognizing that determinations of guilt may be based on both direct and circumstantial (also known as indirect) evidence. See, e.g., Baker v. Commonwealth, 860 S.W.2d 760, 761 (Ky.1993) (citing Pruitt v. Commonwealth, 490 S.W.2d 486, 488 (Ky.1972), Hollowell v. Commonwealth, 492 S.W.2d 884 (Ky.1973), and Rains v. Commonwealth, 293 Ky. 429, 169 S.W.2d 41 (1943)).

      . This case is distinguishable from our decision in Mifflin v. Mifflin, 2003-SC-857, 170 S.W.3d 387, 2005 WL 2043682, rendered August 25, 2005. In that case, the appellant brought forth sufficient evidence to support her claim that the trial court erred when it determined the ownership of a certain bank account. The appellee did not set forth any additional evidence contradicting appellant’s evidence, but rather relied on the above presumption to support its argument that since the undesignated portions of the record were significantly more voluminous than the portion designated by the appellant, we were compelled to presume, as a matter of law, that the entirety of the undesignated record provided contradictory support in favor of the trial court’s decision. We rejected such a presumption, holding, instead, that in cases where the appellant sets forth sufficient evidence on the appellate record to support a conclusion of error by the trial court, it is incumbent upon the appellee to set forth evidence rebutting such a presumption of error.
      In this case, Appellant claims error on a completely silent record, and as such, he has failed to set forth sufficient evidence to support a conclusion of error by the trial court. Accordingly, the presumption set forth in Thompson, supra, and Colonial Life and Accident Insurance Co. v. Weartz, 636 S.W.2d 891 (Ky.App.1982) is still valid in this case.


author: LAMBERT, Chief Justice.

text:
    KENTUCKY BAR ASSOCIATION, Petitioner, v. Rodney McDANIEL, KBA Member No. 46027, Respondent.
    No. 2005-SC-0172-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Bruce K. Davis, Executive Director, Jay R. Garrett, Kentucky Bar Association, Frankfort, Counsel for Petitioner.

      Rodney McDaniel, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Rodney McDaniel, KB A No. 46027, of Frankfort, Kentucky, was admitted to the practice of law in Kentucky on October 1, 1976.

On August 2, 2004, the Inquiry Commission of the Kentucky Bar Association filed a five-count charge against McDaniel. Count I alleges violation of SCR 3.130-1.8 for failure to act with reasonable diligence and promptness in representing a client. Count II alleges violation of SCR 3.130-3.2 for failure to make reasonable efforts to expedite litigation consistent with the interests of the client. Count III alleges violation of SCR 3.130-3.4(c) for allegedly knowingly or intentionally disobeying an obligation under the rules of a tribunal except for an open refusal based on assertion that no obligation exists. Count IV alleges violation of SCR 3.130-3.4(d) for deliberate failure to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. Count V alleges that he knowingly failed to respond to a lawful demand for information from a disciplinary authority.

McDaniel has been privately admonished on two prior occasions for violations of SCR 3.130-1.3 and SCR 3.130-1.4(b). In an order from the Inquiry Commission dated November 6, 2000, he was informally privately admonished pursuant to SCR 3.185 for failing to appear at a hearing as the attorney for defendant facing contempt charges for failing to attend drug counseling. On July 10, 2002, he was again informally privately admonished pursuant to SCR 3.185 for accepting appointment of a client, after which he made a single attempt to contact the client.

The facts of the instant action concern the representation of eight prison inmates who filed a civil rights complaint against the Franklin County Correctional Complex. Originally, these inmates filed pro se. On October 18, 2001, McDaniel entered his appearance on behalf of the plaintiffs and filed a motion to amend the complaint. The motion was granted.

In March 2002, he met with opposing counsel and issued the joint status conference report requested by the court. In August 2002, the defendants served discovery requests on McDaniel. In a motion dated December 6, 2002, the defendants asked to dismiss or, in the alternative, to alter and to compel discovery because McDaniel had failed to respond to the August requests. On January 7, 2003, the court dismissed the case with prejudice for failure to answer discovery requests.

On January 21, 2003, McDaniel answered a show cause order and motioned for the establishment of new discovery deadlines. He explained that he was busy with a capital murder case and requested that the court not dismiss the case, order sanctions against him, and issue new scheduling deadlines. Two days later, the court set aside the dismissal and ordered sanctions in the amount of the costs paid by defendants to file the motion to dismiss. McDaniel paid those costs.

In the renewed case, McDaniel obtained the depositions of three of the plaintiffs, but failed to respond to the earlier discovery requests. Later, on June 16, 2003, the defendants filed another motion to dismiss citing that they had received no answers to discovery requests and that the plaintiffs had not taken any depositions in order to support their claims against the defendants. McDaniel did not respond to the motion. The case was dismissed.

In February 2004, the Franklin County Sheriff served McDaniel with a copy of the pending disciplinary complaint. Again, in March, the Sheriff served him a copy of the complaint and a reminder letter. McDaniel did not answer the discipline complaint.

On August 18, 2004, he was served with the charges from the Inquiry Commission, and again served a warning letter on September 8, 2004. McDaniel did not answer the Inquiry Commission Charges.

The Board of Governors received no explanation of his conduct from McDaniel, and noted the facts outlined above. In a vote of 15-0, they found him guilty of Counts I, II, III, and IV. In an 11-4 vote, the Board found him guilty of Count V.

The legal authorities regarding discipline cited by the KBA are unconvincing. Previous discipline by the KBA has not been sufficient to cure the problem. A review of this case demonstrates a pattern of neglect and disregard for the interests of his clients and for the orders of the federal court as well as the disciplinary charges filed against him. The past discipline in the form of two private admonitions has not rehabilitated this pattern of conduct, nor has he approached the KBA with an explanation of his charged deficiencies.

Accordingly, it is the finding of this Court that Rodney McDaniel has violated SCR 3.130-1.3; SCR 3.130-3.2; SCR 3.130-3.4(0; SCR 3.130-3.4(D) and SCR 3.130-8.KB).

Therefore, it is hereby ORDERED:

That Rodney McDaniel is suspended from the practice of law in the Commonwealth of Kentucky for a period of 30 days; pursuant to SCR 3.450, McDaniel is directed to pay the costs associated with this matter in the sum of $498.26, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.


author: GUIDUGLI, Judge.

text:
    Arnold W. CARTER, Appellant, v. Jamie D. SMITH and Bourbon County Board of Education, Appellees.
    No. 2003-CA-001054-MR.
    Court of Appeals of Kentucky.
    Oct. 8, 2004.
    Discretionary Review Denied by Supreme Court Sept. 14, 2005.

      Joe F. Childers, Lexington, KY, for appellant.
    Neil Duncliffe, Georgetown, KY, for ap-pellee, Jamie D. Smith.
    Sam P. Burchett, Lexington, KY, for appellee, Bourbon County Board of Education.
    Before GUIDUGLI and KNOPF, Judges; EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

GUIDUGLI, Judge.

Arnold W. Carter has appealed from the portion of the Bourbon Circuit Court’s May 13, 2003, Opinion and Order denying his motion to intervene as a matter of right pursuant to CR 24.01. Carter had moved to intervene, both as a matter of right and permissibly, in a lawsuit filed by Jamie D. Smith against the Bourbon County Board of Education alleging violations of the Open Meetings Act. Because we have determined that the denial of the motion to intervene as a matter of right was immediately final and appealable and that the circuit court should have granted the motion, we reverse and remand.

On December 3, 2002, Smith, a resident of Paris, Kentucky, filed a two-count complaint in Bourbon Circuit Court against the Bourbon County Board of Education alleging six violations of the Open Meetings Act in 2001 and 2002. In late January, Smith moved the circuit court to file an amended complaint. Following a hearing, the circuit court granted Smith’s motion and her amended complaint was filed on February 4, 2003. In her amended complaint, Smith included a third count, alleging that the Board went into a closed session at a December 19, 2002, meeting for a stated purpose of discussing pending litigation and personnel without giving notice of the specific provision of KRS 61.810 authorizing the closed session. Immediately following the closed session, the Board accepted the resignation of Superintendent Arnold W. Carter effective December 81, 2002, and hired him as a consultant through December 31, 2008, at a cost of approximately $133,000, as well as $3,000 in moving expenses. The Board and Carter entered into an agreement regarding his retention as a consultant on December 23, 2002. Smith requested that the circuit court declare the action at the December 19, 2002, meeting null and void and that any funds Carter was paid be turned over to Bourbon County Schools.

In a related motion, Smith moved for a temporary injunction to enjoin the Board from making any additional payments to Carter under the contract. Following a hearing in March, the circuit court entered a temporary injunction against the Board and enjoined it from making any further payments pursuant to the December 23, 2002, contract. The Board was ordered to pay all money due into an escrow account pending a final decision as to the validity of the contract. The circuit court allowed the parties sixty days from March 4, 2003, to take additional proof, after which it would decide whether to issue a permanent injunction or a judgment in favor of the Board.

At an April 9, 2002, hearing, Carter made motions to intervene as a defendant and to obtain a restraining order to prevent the hiring of a new superintendent. These motions were eventually filed with the clerk twenty days later. Carter first filed a motion to intervene as a matter of right pursuant to CR 24.01, and later amended his motion to include a request for permissive intervention pursuant to CR 24.02. In his original motion, Carter stated that he had signed an employment contract with the Board on June 5, 2001, providing that he would serve as Superintendent from July 1, 2001, through June 30, 2005. He resigned this position on December 30, 2002, conditioned on a new consulting contract he signed with the Board. Because the circuit court issued a temporary injunction in March, Carter was no longer being paid for his consulting services under his contract. Therefore, he requested permission to intervene as a matter of right pursuant to CR 24.01(l)(b), because he was so situated that the disposition of the action may have as a practical matter impaired or impeded his ability to protect his interests, which neither Smith nor the Board could be expected to do. In another motion, Carter requested a restraining order to prevent the Board from hiring a new Superintendent in case the circuit court decided that his consulting contract with the Board was void. The circuit court passed the motion to intervene to allow the parties to brief the issue, and denied his motion for a restraining order because Carter was not a party in the action.

In his memorandum in support of the motion to intervene, Carter asserted that he had a contractual right in the December 23, 2002, consulting contract as well as in his Superintendent contract, should the consulting contract be declared void. He also argued that his interests would not be adequately protected by the existing parties; Smith wanted to enjoin the Board from paying him, and the Board had a financial interest in not paying any money to him and had refused to ratify the December contract in a later open meeting. The Board filed a response in opposition to Carter’s motion and amended motion to intervene, arguing that Carter’s resignation was not conditioned on the consulting contract, that it was his duty to correctly post the agenda and ensure conformity with the Open Meetings requirements, and that the motion to intervene was untimely. The Board indicated that Carter and his attorney had attended the original January hearing, but did not attempt to intervene until April. Because he was aware of the lawsuit and could have intervened prior to the March 4, 2003, hearing, but chose not to do so, his motion was not timely filed.

On May 13, 2003, the circuit court entered an Opinion and Order denying Carter’s motion to intervene pursuant to CR 24.01 and his amended motion to intervene pursuant to CR 24.02, the pertinent parts of which read as follows:

This case involves allegations by Plaintiff that the Bourbon County Board of Education (“Board”) violated the open meetings statute of the Commonwealth of Kentucky on several occasions. Plaintiff sought a temporary injunction concerning the resignation of Mr. Carter as superintendent and the awarding of a consultant contract to him at that same meeting. A hearing was conducted by this Court on March 4, 2003, and a temporary injunction was entered by this Court at that time.
Mr. Carter now seeks to intervene into this action pursuant to CR 24.01, which states as follows:
Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless that interest is adequately represented by existing parties.
Obviously, the right to intervene where a statute conveys an unconditional right to intervene is not applicable in this case since this is an action pursuant to Kentucky’s Open Meetings Act, KRS 61.805 through 61.850, and nothing in that statute grants anyone any unconditional right to intervene. Section (b) of CR 24.01 provides for intervention as a right: when the applicant claims an interest relating to the property or transaction, which is the subject of this action, and is so situated that practically its disposition should be determined in the suit. This would appear to be the section under which Mr. Carter seeks to intervene as a matter of right. However, there is no action that this Court can take which would impair his ability to protect his interests. The Court has ordered the funds to which he claims an entitlement to be placed in escrow until such time as the Court rules on this motion. If the Court finds that the action[s] of the Board were valid, those funds would still be available to pay him for his services. If the Court were to declare the actions of the Board improper, then this contract would be void ab initio as a violation of public policy and he would not be entitled to those funds. There is a whole separate issue as to whether he would be entitled to any funds on a quantum meruit basis, and that would be an independent action between Mr. Carter and the Board. Intervention as a matter of right does not involve cases where one person’s rights are contingent on a resolution of another person’s rights. As the Court said in Gayner v. Packaging Serv. Corp. of Kentucky, Ky.App., 636 S.W.2d 658, 660 (1982): “CR 24.01(b), like its federal counterpart, Fed.R.Civ.P. 24, does not permit a contingent interest such as the Gayner claim to be placed in issue by intervention.” Therefore, Mr. Carter does not have a right to intervene in this matter.
However, even if the Court were to determine that intervention as a matter of right or by permission of the Court were appropriate in this case, the Court would not grant the motion for its failure to be timely. The issues involved in this case were initiated in December of 2002 and, as the Court pointed out before, has been subject to several motions and hearings since then. Mr. Carter has been aware of those issues, and counsel for both Plaintiff and the Board have asserted that he was present at some of the hearings on this matter. However, he chose not to intervene until there was a newspaper article indicating that the Board was considering hiring a new school superintendent. As soon as this article appeared in the paper, Mr. Carter, with his attorney, filed a motion to intervene and an accompanying motion for a temporary injunction to prevent said hiring. This is the real purpose of this matter. This Court finds that it is inappropriate and untimely to sit back and wait until the ninth hour before trying to intervene, especially when the party seeking intervention was well aware of the litigation. Therefore, this Court finds that the motion was also untimely filed.

This appeal from the portion of the order denying Carter’s motion to intervene pursuant to CR 24.01 followed.

As an initial matter, we shall address Carter’s response to the show cause order this Court issued regarding whether the circuit court’s order was presently final and appealable in light of the fact that a final judgment disposing of the suit has not yet been entered. In his response, Carter relies upon the Supreme Court of Kentucky’s decision in Ashland Public Library Board of Trustees v. Scott for the proposition that an immediate appeal lies from the denial of a motion to intervene as a matter of right pursuant to CR 24.01. We agree. In City of Henderson v. Todd, the former Court of Appeals held that an order denying a motion to intervene as a matter of right is immediately appealable. The Ashland Public Library court relied upon the City of Henderson case and expounded upon that case to note its adoption of the rule in 7A Wright & Miller, Federal Practice and Procedure section 1923: “(A) Prior to judgment disposing of the whole case, any denial of intervention of right should be regarded as an appeal-able final order but the appellate court should affirm unless such intervention of right was erroneously denied.” While the circuit court in this case ruled upon both motions to intervene, Carter limited his appeal to the denial of his motion to intervene as a matter of right. Therefore, we shall permit his appeal to proceed.

CR 24.01(1) provides for a four-prong test regarding rulings on motions to intervene when a statute has not conferred an unconditional right to intervene:

Upon timely application anyone shall be permitted to intervene in an action ... (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless that interest is adequately represented by existing parties.

We shall first address the timeliness issue.

The circuit court found that Carter’s motion to intervene was not timely filed, noting that the suit was filed in December 2002, and that several motions had been filed and hearings held prior to the filing of the motion to intervene, of which Carter was aware and at which he was present. However, the circuit court found that Carter chose not to intervene until after the publication of a newspaper article regarding the hiring of a new superintendent. This, the circuit court found, was the real reason for the intervention. On appeal, Carter argues that his motion to intervene was timely, in that he had no reason to intervene until the amended complaint brought his consulting contract into dispute and further payments under the contract were enjoined. His goal in intervening was to protect his interest in the consulting contract. Carter also argues that the parties to the suit were not prejudiced as there had been little discovery and that no unusual circumstances militated against intervention. On the other hand, both Smith and the Board argue that the circuit court did not abuse its discretion in finding the motion to be untimely filed.

There is some dispute between the parties about the standard of review applicable to the issue of timeliness. We have determined that our review of the circuit court’s finding of untimeliness is governed by an abuse of discretion standard, based upon both state and federal law. In Ambassador College v. Combs, the Supreme Court of Kentucky stated, “[tjimeliness is a question of fact, the determination of which should usually be left to the judge.” Looking to the federal level, the Sixth Circuit Court of Appeals has used an abuse of discretion standard to review the district court’s ruling on timeliness for a motion to intervene as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2), the federal counterpart to Kentucky’s CR 24.01.

In Grubbs v. Norris, the Sixth Circuit Court of Appeals relied upon the five-factor test as set forth in Triax Co. v. TRW, Inc. to determine whether a motion to intervene .was timely. Those factors are:

(1) [Tjhe point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.[]

In Monticello Electric Plant Board v. Board of Education of Wayne County, the former Court of Appeals went so far as to hold that intervention may be allowed under certain circumstances even after the judgment has been entered, although the court indicated that the applicant would have to overcome a special burden to justify the apparent lack of timeliness.

In the present matter, the circuit court based its decision that the motion to intervene was untimely upon findings that Carter inappropriately waited to file his motion until reading a newspaper article about the possible hiring of a new superintendent, even though he was aware of the pending lawsuit and had been present at several hearings with this attorney. Applying the Grubbs factors to this case, we note that at the time intervention was sought, no final judgment had been entered and the parties had completed little, if any, discovery. Carter was seeking intervention to protect his interests in the consulting contract, which was not raised in the original December complaint, but in the amended complaint filed in early February. Regarding the length of time preceding his motion, Smith did not move to file her amended complaint until the end of January, and the circuit court did not grant her motion until February 4, 2003. Furthermore, the circuit court did not enter the temporary injunction ordering the funds Carter was to be paid into escrow until March 18, 2003. Carter first raised his desire to seek intervention less than one month later at a hearing on April 9, 2003. Any possible prejudice to the parties in the lawsuit would be minimal, if any existed at all, because the suit was still in its early stages. Lastly, there were no unusual circumstances militating against intervention. Based upon our review of the applicable law, we hold that the circuit court abused its discretion in determining that Carter’s motion to intervene was not timely filed, and that its decision on this issue must be reversed.

Although the circuit court held that his motion to intervene was not timely, the circuit court also reviewed the merits of the motion and held that Carter should not be permitted to intervene as a matter of right. The circuit court reasoned that there was no action it could take to impair or impede his interests and that the right to payment under the contract he was seeking to protect was merely contingent on the resolution of another person’s rights. Carter argues that he did have a substantial interest in the subject matter of the lawsuit because Smith’s amended complaint and temporary injunction made his consulting contract a central issue, and that his interests would not be adequately protected by the Board. He asserts that it would financially benefit the Board to circumvent its contract with him so that it would not have to pay him for the months of services he performed, and that the Board failed to ratify the consulting contract in a later open meeting. In her brief, Smith argues that disposition of her action would not impair or impede Carter’s interest because there was nothing in the record, other than his affidavit, to establish that he was performing under the contract, and because other remedies existed. Likewise, the Board argues that Carter’s interest was completely contingent and fully protected by the escrow account.

Our standard of review as to whether intervention should have been granted is a clearly erroneous standard. An applicant must meet a four-prong test before being entitled to intervene in a lawsuit pursuant to CR 24.01(1). We have already determined that the motion was timely filed. Therefore, Carter must establish the three remaining prongs: that he has an interest relating to the subject of the action, that his ability to protect his interest may be impaired or impeded, and that none of the existing parties could adequately represent his interests. We hold that Carter satisfied each of these requirements and should have been permitted to intervene as a matter of right.

First, we shall address whether Carter had a substantial interest in the lawsuit. In Baker v. Webb, the Supreme Court of Kentucky stated, “[i]n order to intervene, the party’s interest relating to the transaction must be a ‘present substantial interest in the subject matter of the lawsuit,’ rather than an expectancy or contingent interest.”

Based upon the facts of this case, we hold that Carter had a substantial interest in the subject matter of the lawsuit in that his consulting contract was being called into question. Smith was seeking to invalidate his consulting contract, and on her motion the circuit court entered a temporary injunction causing Carter’s future payments under the contract to be placed into an escrow account. In addition to his contract rights, Carter also wanted to protect his interest in his former superintendent position should his contract be declared void. Although both Smith and the Board argue that Carter’s interest was merely contingent upon the final outcome, we disagree that this makes his interest any less substantial. Carter had a present and substantial interest in protecting both his consulting contract, regardless of the fact that the funds payable to him were in escrow, and in protecting his former position. In addition, we believe that intervention in this case would allow for judicial economy and prevent piece-meal litigation.

Next, we shall address whether Carter’s ability to protect his interests would be impaired or impeded if not permitted to intervene. Carter states that he would be prevented from protecting his contract interest if the circuit court were to declare the contract null and void because of the presence of the injunction preventing the Board from paying him. He asserts that his only remedy would be to intervene and move the circuit court to lift the injunction. Smith and the Board each argue that Carter’s interests would not be impaired because other adequate remedies exist. We agree with Carter that the possibility exists that his ability to protect his interests may be impaired unless he is permitted to intervene.

Last, we shall examine whether Carter’s interests are adequately represented by the existing parties. While Smith and the Board argue that his rights are adequately represented, presumably, by the Board, we agree with Carter that neither party to the action has any reason to represent or protect his rights. There is nothing to prevent the Board from admitting to the Open Meetings Act violation, thereby voiding the consulting contract and negating its need to pay Carter under the terms of the contract. Further, the Board never ratified its decision concerning the consulting contract in a later open meeting. Smith’s argument in her brief that there is nothing in the record regarding whether Carter performed under the contract is irrelevant because the fact remains that he should be permitted to protect his interest in the contract itself, as opposed to the actual collection of funds due under the contract.

Based upon our de novo review of the circuit court’s denial of Carter’s motion to intervene, we hold that the decision was clearly erroneous and, as with the ruling on timeliness, must be reversed.

For the foregoing reasons, the portion of the Bourbon Circuit Court’s Opinion and Order denying Carter’s motion to intervene as a matter of right is reversed, and this matter is remanded for further proceedings consistent with this opinion.

ALL CONCUR.

      . KRS 61.805 to 61.850.

      . Ky., 610 S.W.2d 895 (1981).

      . Ky., 314 S.W.2d 948, 951 (1958).

        . Ashland Public Library, 610 S.W.2d at 896.

      . Ky., 636 S.W.2d 305, 307 (1982).

      . See also Rosenbalm v. Commercial Bank of Middlesboro, Ky.App., 838 S.W.2d 423, 427 (1992).

      . Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389 (6th Cir.1993); Grubbs v. Norris, 870 F.2d 343 (6th Cir.1989).

      . 870 F.2d 343 (6th Cir.1989).

      . 724 F.2d 1224 (6th Cir. 1984).

      . Grubbs, 870 F.2d at 345. See also Cuyahoga Valley Ry. Co., 6 F.3d at 395-96.

      . Ky., 310 S.W.2d 272, 274 (1958).

      . Gayner v. Packaging Service Corp. of Ky., Ky.App., 636 S.W.2d 658, 660 (1982); Grubbs, 870 F.2d at 345.

      . See Washington Electric Cooperative v. Massachusetts Municipal Wholesale Electric Co., 922 F.2d 92 (2nd Cir.1990).

      . Ky., 127 S.W.3d 622 (2004).

      . Id. at 624 (citing Gayner, 636 S.W.2d at 659).