text:
    Pablo Infante MAGANA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00492-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2005.

      Norman J. Silverman, Houston, TX, for Appellant.
    Julie Klibert, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attomey-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   OPINION

TIM TAFT, Justice.

A jury found appellant, Pablo Infante Magana, guilty of possession with intent to deliver cocaine, weighing at least 400 grams, and the trial court assessed his punishment at twenty years in prison. We determine (1) whether delay in obtaining a Spanish-speaking officer to explain the consent to search form, after appellant was stopped for a traffic offense, rendered appellant’s consent the suppressible fruit of an unlawful detention, and (2) whether prosecutorial argument improperly struck at appellant over the shoulders of his counsel. We affirm.

Facts

On May 5, 2003, Narcotics Division Officers of the Houston Police Department were conducting surveillance on appellant and his household. Officers observed appellant drive to a gas station in a red Ford Expedition and meet with Angel Alvarez and Misael Flores, a confidential informant. After the three men conversed, Alvarez got into appellant’s vehicle and they drove away. Appellant stopped at an audio store, and then drove Alvarez back to the gas station at which they had met. Appellant went to a drive-through window at a bank before returning home.

Once back at his home, appellant went inside and his wife came outside and began cleaning. Shortly thereafter, appellant emerged from the home, carrying a black trash bag that he deposited into his trash can by the curb. About half an hour later, appellant left the home carrying a maroon knapsack, which he placed in the back of the Expedition before driving away.

Appellant drove to a fast-food restaurant and picked up Alvarez. Appellant then proceeded to the feeder road of highway 59, where Officer Gurley, driving an unmarked police car, observed appellant commit traffic violations, including failing to signal a lane change and making an unsafe lane change. Officer Gurley requested that Officer Arnold, driving a marked patrol car, stop appellant’s vehicle for the traffic violations.

Officer Arnold stopped appellant at approximately 3:20 p.m. Officer Arnold asked appellant, in Spanish, to produce his driver’s license. At about 3:25 p.m., Officer Arnold asked appellant, in English, if he would consent to a search of his car. Appellant did not appear to understand. Nevertheless, appellant appeared to be cooperative, so Officer Arnold began filling out a written consent form, one side of which is in Spanish.

While Officer Arnold was still filling out the form, Officer Lerma arrived and took over filling out the consent form. Once Officer Lerma had completed the form, he verbally read the form’s text in Spanish to appellant and advised him that he had a right to refuse consent. After asking appellant if he could read Spanish, and when appellant answered affirmatively, Officer Lerma asked appellant to sign it. Appellant signed the form and stated that he understood what he was doing. The consent to search authorized a search of both appellant’s vehicle and home.

Officer Lerma then conducted a search of the vehicle and recovered the maroon knapsack from the back of the Expedition and examined its contents. Ultimately, it was determined that the knapsack contained four kilograms of cocaine. Plastic wrappers and a hollowed-out drive shaft were recovered in the search of appellant’s home.

Motion to Suppress

In his first point of error, appellant contends that the trial court erred in denying his motion to suppress because his detention was unconstitutionally prolonged.

A trial court’s ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We will afford almost total deference to a trial court’s determination of facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Spight v. State, 76 S.W.3d 761, 765 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Here, the trial court did not make explicit findings of historical fact; thus, we review the evidence in the light most favorable to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000). We assume that the trial court made implied findings of fact supported in the record .that buttress its conclusion. Id. Because we do not determine credibility, our de novo review of reasonable suspicion, probable cause, consent, and mixed questions of law and fact become a de novo review of legal questions. State v. Derrow, 981 S.W.2d 776, 778 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (citing Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996)).

A traffic stop is a detention and must be reasonable. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). To be reasonable, a traffic stop must have been justified when the person was initially stopped and not be longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 245. Once the reason for the stop has been satisfied, police officers may not use the stop as a fishing expedition for unrelated criminal activity. Davis, 947 S.W.2d at 243. However, an officer may request consent to search a vehicle after a completed traffic stop, but may not detain the occupant or the vehicle further if such consent is refused, unless there is reasonable suspicion of some criminal activity. Levi v. State, 147 S.W.3d 541, 544 (Tex.App.-Waco 2004, pet. ref'd); Spight, 76 S.W.3d at 768; Simpson v. State, 29 S.W.3d 324, 328 (Tex.App.-Houston [14th Dist] 2000, pet. ref'd).

Appellant concedes that his traffic stop was justified when it began and when Officer Arnold requested his driver’s license. However, appellant argues that the stop became unreasonable when Officer Arnold turned his attention from the traffic stop to acquiring consent to search appellant’s vehicle and home. Appellant urges this Court to hold that it was unreasonable for Officer Arnold to detain him for approximately fifteen minutes while filling out a consent form and waiting for a Spanish-speaking officer to arrive. We disagree with appellant’s characterization of the “prolonged detention” as being 15 minutes while waiting for a Spanish-speaking officer to arrive. We agree only that the record shows that the Spanish-speaking officer arrived before Officer Arnold had finished filling out the consent form. More importantly, appellant had not refused to give consent, but appeared to be cooperative, albeit not fully understanding the request for consent because of the language barrier.

Logic compels the conclusion that, if an officer may request consent after a completed traffic stop, as long as the person stopped is allowed to go if he refuses consent, an officer may certainly request consent during a traffic stop, as long as the stop is not prolonged beyond its normal duration, if he refuses consent. Here, appellant did not refuse consent. We hold that appellant’s consent was not the fruit of an unlawful, prolonged detention.

Appellant relies on Herrera v. State, 80 S.W.3d 283 (Tex.App.-Texarkana 2002, pet. ref'd). In Herrera, Officer Crawford, who was in an unmarked car, observed Herrera commit a traffic violation and notified Officer Garrison, who was in a marked car, to stop Herrera’s car. Id. at 287. Officer Garrison pulled Herrera over, but did not give him a citation because he did not observe Herrera commit the violation. Id. Once Officer Garrison learned that Herrera did not speak English, he called for a Spanish-speaking officer to come to the scene. Id. Meanwhile, Officer Garrison ran a background check on Herrera. Id. When the Spanish-speaking officer arrived at the scene, he told Herrera that he wanted his consent to search his car and apartment. Id. Upon searching Herrera’s apartment, the police found cocaine. Id. at 286. The court found that the initial stop was unduly prolonged beyond the original purpose for the stop without reasonable suspicion to further detain Herrera. Id. at 289.

We disagree with the ruling in Herrera for two reasons. First, the Spanish-speaking officer asked Herrera during a lawful traffic stop for consent to search his car and apartment, and Herrera gave his consent. Although the Spanish-speaking officer immediately asked for consent upon arriving, his presence was also necessary to complete the initial traffic stop investigation. Neither was the traffic investigation unduly prolonged to obtain consent because Herrera readily consented upon being asked. Any further detention was to effectuate the search pursuant to consent. It needed no other justification. Second, the issue is not whether the officer asks for consent in the middle of the stop or after the stop is complete, but whether the consent was voluntary under all the circumstances.

In Spight, this Court specifically refused to adopt a bright-line approach, such as that utilized in Herrera, that it is unreasonable per se for an officer to request consent to search after the traffic investigation has concluded. Spight, 76 S.W.3d at 768. Rather, this Court concluded that the proper focus is on the voluntariness of the consent. Id. We find two of the cases relied upon by Herrera distinguishable on the basis that a prolonged detention occurred after a stopped suspect refused to give consent. See Davis, 947 S.W.2d at 241; McQuarters v. State, 58 S.W.3d 250, 254 (Tex.App.-Fort Worth 2001, pet. ref'd). We disagree with the third case relied on by Herrera because there was no improper police conduct when, after the traffic stop was completed, the defendant agreed to answer further questions and admitted he had a roach (butt of smoked marijuana) in the car thereby giving the officer probable cause to recover the roach and arrest appellant for possession of marijuana. State v. Daly, 35 S.W.3d 237, 240 (Tex.App.-Austin 2000, no pet.).

In this case, appellant does not challenge the voluntariness of his consent. Accordingly, we hold that appellant’s consent to search given during a valid traffic stop justified the officer’s search of appellant’s vehicle and seizure of the four kilograms of cocaine.

We overrule appellant’s first point of error.

Jury Argument

In his second point of error, appellant contends that the trial court erred in overruling his objection to the State’s closing argument. Specifically, appellant contends that, by arguing that it was a “coincidence” that the facts of appellant’s testimony amounted to a legal defense, the State implied that defense counsel had manufactured evidence to create a legal defense and had offered perjured testimony-

The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App.1991)’ Proper jury argument generally must encompass one of the following general areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsels argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party’s argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857.

The State may not use closing argument to strike at a defendant over the shoulders of his counsel or accuse that counsel of bad faith. Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App.1984). A prosecutor runs a risk of improperly striking at a defendant over the shoulders of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel’s character. Id. While no one fixed rule emerges to determine what is improper jury argument, we thus look for argument that refers to defense counsel personally or argument that impugns opposing counsel’s character. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998).

In the present case, appellant relies on such cases as Gomez v. State, 704 S.W.2d 770, 771(Tex.Crim.App.1985) (prosecutor stated “We are not paid to satisfy Pat Abeyta, or anyone else that he drags down here from Lubbock to manufacture evidence.”), Bell v. State, 614 S.W.2d 122, 123 (Tex.Crim.App.1981) (prosecutor stated that counsel’s duty was to “see that his client gets off even if it means putting on witnesses who are lying.”), and Jones v. State, 151 Tex.Crim. 115, 205 S.W.2d 590, 592 (1947) (prosecutor stated “My dear fellow, you needn’t have worried one minute because Dusty Miller will take care of everything and furnish the evidence.”) to support the proposition that inflammatory arguments that impugn the integrity of defense counsel have been condemned.

We have no disagreement with appellant’s cases, but significant differences exist between the arguments in the above-cited cases and the argument in this case. Here, the prosecutor’s comments were directed at the veracity of appellant and his defensive theories, not at defense counsel himself. For example, in context, the prosecutor repeatedly asked the jurors what were the odds of appellant’s testimony regarding various defensive theories being true. A prosecutor is allowed to argue that the witnesses in the case are not worthy of belief. See Satterwhite v. State, 858 S.W.2d 412, 425 (Tex.Crim.App.1993). Similarly, it is proper for a prosecutor to attack the defense’s argument rather than the defense counsel. Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, pet. ref'd); see also Tilbury v. State, 890 S.W.2d 219, 224 (Tex.App.-Fort Worth 1994, no pet.) (statements regarding defense of necessity and “smoke and mirrors” not improper because statements did not directly accuse defense counsel of lying or encouraging defendant to lie; rather, statements were argument that defendant had tailored his story to fit his defenses). As we view the argument in light of the evidence, the prosecutor’s argument shows that, when appellant learned what defenses were possible, he tailored his testimony to fit those defenses. The arguments were striking directly at appellant, rather than over the shoulders of his attorney. Accordingly, the trial court did not err in overruling appellant’s objection to the prosecutor’s argument.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: LAMBERT, Chief Justice. COOPER, Justice,

license: Public Domain

text:
    BAPTIST HEALTHCARE SYSTEMS, INC. d/b/a Central Baptist Hospital, Appellant, v. Golda H. MILLER, et al., Appellees.
    No. 2003-SC-471-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Rehearing Denied Dec. 22, 2005.

      Gregory K. Jenkins, F. Allon Bailey, Lynn Rikhoff Kolokowsky, Jenkins Pisaca-no Robinson & Bailey, Lexington, Counsel for Appellant.
    Fred E. Peters, Ashley Rogers Dye, Lexington, Counsel for Appellees.
    E. Andre’ Busald, Jay R. Vaughn, Bus-aid Funk Zevely PSC, Florence, Counsel for Amicus Curiae, Kentucky Academy of Trial Lawyers.
    Frank Stainback, Sullivan, Mountjoy, Stainback & Miller, P.S.C., Owensboro, Counsel for Amicus Curiae, Kentucky Defense Counsel, Inc.
    Stephen R. Price, Carole D. Christian, Wyatt Tarrant and Combs, Louisville, Counsel for Amicus Curiae, Kentucky Hospital Association, Inc.
   LAMBERT, Chief Justice.

Appellant, Baptist Healthcare, Inc., d/b/a Central Baptist Hospital appeals from the Kentucky Court of Appeals opinion affirming the judgment of the Fayette Circuit Court awarding Appellee, Golda Miller $100,100 for injuries received as a result of negligence. As we discern no abuse of trial court discretion in continuing the case to allow Ms. Miller to identify an expert, trial court error in denying Central Baptist’s motion for summary judgment, or other reversible error, we affirm the Court of Appeals and the judgment of the Fayette Circuit Court.

On July 18, 1997, Golda Miller went to Central Baptist Hospital to have her blood drawn upon her doctor’s order. The phle-botomist employed by Central Baptist Hospital placed a tourniquet on Ms. Miller’s arm, and left her without supervision for approximately ten minutes. When the phlebotomist returned from answering a telephone call in another room, Ms. Miller’s arm was swollen and had changed colors. Ms. Miller, who was eighty years old, experienced medical complications with her arm and sought treatment. After medical consultation, three physicians concluded that Ms. Miller was experiencing nerve problems with her right arm and specifically related her condition to the tourniquet incident of July 18,1997.

Ms. Miller brought a negligence action against Central Baptist, and trial was initially scheduled for April 30, 2001. Before the ease was tried, on April 9, 2001, Central Baptist moved for summary judgment on the grounds that Ms. Miller’s claim was improperly classified as negligence rather than medical malpractice. Central Baptist claimed that a medial negligence case required an expert phlebotomist to testify as to the standard of care, and since Ms. Miller did not provide notice of an expert phlebotomist she could not establish evidence of the standard of care. On April 20, 2001, the Fayette Circuit Court held a hearing on the matter. During the hearing, counsel for Ms. Miller argued that the case was one of ordinary negligence rather than medical negligence since phlebotom-ists are not licensed or regulated in Kentucky. In support of this point, Ms. Miller added that Central Baptist’s phlebotomist failed to meet her employer’s standard of care as outlined in its employee training manual and videos. The trial court determined that due to the widespread use of phlebotomy, a specific medical standard of care was mandatory and necessitated expert testimony to establish whether that standard of care was met. The trial court thereby denied Central Baptist’s motion for summary judgment and allowed a 30 day continuance for Ms. Miller to identify an expert under CR 26.

A two day jury trial began on September 26. Dr. Michael Balm testified that Ms. Miller’s nerve injury was specifically related to the tourniquet incident of July 18, 1997 at Central Baptist Hospital. Ms. Miller produced expert witness Denise Dunn, a phlebotomist with the University of Kentucky and former employee of Central Baptist. Ms. Dunn testified that she assisted in the training of new phlebotom-ists at the University of Kentucky. She testified that a phlebotomist should never leave a patient alone, and that a tourniquet should be placed on a patient’s arm for one to three minutes. She testified that if a tourniquet is left on a patient’s arm for more than three minutes, the blood may become hemolyzed, a process whereby the “cells are crushed.” She stated that He-molysis is the result of an improperly drawn blood sample and this is indicated by elevated levels of potassium, iron, cholesterol, and bilirubin. This portion of Ms. Dunn’s testimony was based upon a medical publication published in a seminar book by the National Committee on Clinical Laboratory Standards provided by her employer. She stated that she had read this document but did not understand it.

Central Baptist produced the testimony of Ms. Cynthia Applegate an employee and former director of its laboratory to interpret Ms. Miller’s blood test results. At this point, Ms. Miller’s counsel objected to the testimony arguing that any testimony concerning the lab report should not be admissible because it would constitute expert testimony and Ms. Applegate had not been disclosed as an expert witness until a day before trial. The trial court ruled that Ms. Applegate could read from the report and testify that there were no indications of any problems with the blood drawn, but prohibited her from interpreting the lab report.

At the conclusion of the trial, the jury returned a verdict in favor of Ms. Miller and awarded damages of $154,000. But the jury also found that Ms. Miller was 35 percent comparatively negligent, and reduced the verdict from $154,000 to $100,100. In its motion for directed verdict, Central Baptist sought to limit Ms. Miller’s recovery of medical expenses only to those that are actually paid or payable, but to exclude contractual allowances imposed by payors. Central Baptist reasoned that it should not be held liable for medical charges that were neither paid nor able to be collected. The trial court delayed ruling on the motion until a verdict was rendered. The trial court overruled the motion to limit damages on the grounds that considering the equities and Central Baptist’s negligence, the windfall, if any, should go to the injured party, Ms. Miller. The Court of Appeals affirmed, and this Court granted discretionary review.

I.

Central Baptist contends that it was entitled to (CR 56) summary judgment or alternatively that a continuance should not have been granted to Ms. Miller. Central Baptist argues that at the time it moved for summary judgment, Ms. Miller had not named an expert to testify as to the standard of care of a phlebotomist. During the hearing, the issue was whether expert testimony was required in a phlebotomist negligence case, or whether summary judgment should be granted because the plaintiff failed to identify an expert witness. The following colloquy occurred during the hearing:

Counsel for Appellee, Mr. Peters: ... I know I have a nurse available. And I think she’s qualified.
Court: I don’t know who is qualified and who is not to tell you the truth because any medical person can and does draw blood. Nurses do it, doctors do it, quote phlebotomist, there are some people on hospital staff that do nothing but draw blood, but as you say there is no certification or licensure for that that anybody’s given me any evidence for. It’s internal training. I don’t think I really realized that was such an unregulated field. People have been sticking needles in my arm since I don’t know...
Mr. Peters: Some states require, but Kentucky doesn’t.
Court: Which I think causes a major problem in this trial. This is clearly a medical procedure. It clearly has medical consequences. He has two experts that are going to testify that the cause of her problems was that drawing of blood, what we don’t have is anybody, at least identified at this point, is anybody with the experience and skill to testify that it was done negligently ... what the proper standard of care would be for drawing blood and I cannot leave that to the imagination of the jury. This is not something in my opinion that the common sense of a lay person can answer. Mr. Peters: Judge in all honesty, with people out of town it is going to be difficult .to get it done next week.
Court: I’m going to give Mr. Peters 30 days to get his witnesses identified that will prove his case in chief. And if they are not identified in reports to you within 30 days you renew your motion for summary on this issue... full [CR] 26 disclosures with that. And that means of course I’m going to have to give you a continuance, but that means I’m going to dismiss this case before I continue it again.

The trial court, Judge Noble, aptly articulated that the question was whether the unlicensed and unregulated medical field of phlebotomy required expert testimony to establish the standard of care. Notably there is little guidance on this specific issue in Kentucky. However, we have stated that “[t]he general rule is that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard ...”

In the Kentucky Rules of Evidence, KRE 702 states that expert testimony is appropriate “[i]f scientific, technical, . or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.... ” If the subject matter of an issue in litigation is not common knowledge, then expert testimony is proper. Expert witnesses give the jury the ability to evaluate the conduct of the party charged with malpractice in the context of the discipline. The trial judge has wide discretion to admit or exclude evidence including that of expert witnesses. Although it is not uncommon to have blood drawn during a medical examination, most persons would lack knowledge of the technical requirements of the process. Simply because having blood drawn is not uncommon or because such activity is unlicensed and unregulated does not mean that a jury would necessarily understand the specifics of the activity or the standard of care upon medical personnel, including phlebotom-ists, who draw blood. Other jurisdictions utilize expert testimony to aid the trier of fact in determining the standard of care in cases of harm caused by an improper blood draw. As the standard of care is not within the scope of common experience of jurors, requiring expert testimony as to the standard of care of a phlebotomist was a proper exercise of trial court discretion.

Central Baptist further contends that it was entitled to summary judgment because at the time the motion was heard by the trial court, Ms. Miller was without an expert to establish the phlebotomy standard of care. Rarely do we encounter claims of entitlement to summary judgment by one who lost at trial. Normally, the claim is presented as trial court error in failing to grant a directed verdict at the close of the evidence. Nevertheless, Central Baptist predicates its argument on the language of CR 56.03 that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Upon this basis, it insists that the trial court was obligated to grant summary judgment when the state of the record on the date of the hearing revealed that Ms. Miller could not prove her case.

At the outset, we observe that while the trial court’s ruling with regard to the necessity of an expert witness was within the court’s sound discretion, see supra, this issue was not so clear-cut that reasonable persons could not have differed. This Court has rendered numerous decisions in the medical negligence context in which expert witnesses were not required on the view that a lay juror was competent to analyze the conduct and render an appropriate verdict without the assistance of an expert witness. As phlebotomy is an unlicensed field of practice and as numerous other medical providers routinely perform phlebotomy services, from the evidence is was not unreasonable for Ms. Miller to contend that no expert witness was necessary to determine that her injuries were caused by leaving the tourniquet her patient’s arm too long or that the principle of res ipsa loquitur applied to the case. However, the trial judge, acting well within her discretion, saw it otherwise. In view of the foregoing, the trial court properly exercised its discretion to announce a ruling on the necessity of an expert witness and to grant Ms. Miller a reasonable time in which to procure an expert. Under these circumstances, not only did the trial court not err in failing to grant summary judgment, to have done so would have been extraordinary.

It is inappropriate to use a CR 56 summary judgment to resolve what is essentially a procedural dispute as to the need for an expert, the disclosure of the expert’s identity, and the substance of the testimony. In such disputes, it is within the trial court’s discretion to impose sanctions for failure to comply rather than to grant a summary judgment as a procedural sanction except in rare cases. In Ward v. Housman, the Court of Appeals held that it was improper to grant summary judgment as a sanctioning tool where plaintiffs’ counsel failed to comply with the court’s discovery schedule by not disclosing in a timely manner an indispensable expert witness. In Housman, the trial court issued an order excluding any expert testimony of witnesses not known after a certain date. After that date, however, plaintiff moved for reconsideration to allow their expert to testify because they would not be allowed to maintain their cause of action beyond the directed verdict stage of the litigation. Likewise, in M.P.S. v. Cabinet for Human Res., the Court of Appeals held that it was not an abuse of discretion to permit an expert to testify where disclosure of that expert to opposing counsel is disputed.

It was not mandatory for the trial court to grant summary judgment, contrary to Central Baptist’s contention. Ms. Miller had witnesses prepared to testify as to the standard of care of people who draw blood, although she did not have a named phlebotomy expert. Central Baptist’s argument is unpersuasive as the summary judgment hearing established that expert testimony on the phlebotomy standard of care would be necessary. There was no abuse discretion or error of law.

II.

Central Baptist’s second argument is that the trial court should have granted a directed verdict on the issue of Ms. Miller’s medical expenses. Central Baptist seeks to limit Ms. Miller’s recovery to the amount actually paid or the amount actually collectable as a matter of law. It asserts that this is not a collateral source issue; rather it claims that the amount of alleged damages for which there is no obligation to pay is not a valid item to be submitted to the jury and awarded as damages. The jury awarded Ms. Miller $34,000 for medical expenses reduced to $22,100 by a 35 percent fault apportionment. She had sought $40,922.08 in medical expenses. The sum of $31,840 was billed by the doctor, but he received only $3,356.38 from Medicare. Central Baptist claims that Ms. Miller was only responsible for paying $3,356.38 (the amount actually paid by Medicare), and the remaining $28,483.80 was classified as a Medicare adjustment or Medicare write off. Central Baptist claims that the Medicare adjustment was Ms. Miller’s windfall.

It is improper to reduce a plaintiffs damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor. The collateral source rule, as this rule is commonly known, allows the plaintiff to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party. The collateral source rule has long been followed in Kentucky. Medicare benefits are governed by the collateral source rule and are treated the same as other types of medical insurance.

In O’Bryan v. Hedgespeth, we stated that “[c]ollateral source benefits may relate to the plaintiffs need to recover damages from the wrongdoer, but they have no bearing on the plaintiffs right to recover such damages.” We held in O’Bryan that a liability insurance company should not receive a windfall for benefits the plaintiff is entitled to. We reasoned that because the insured procured a policy and paid the premiums that the benefits, including a windfall, inured to them. The recent Court of Appeals decision in Schwartz v. Hasty reiterates the reasoning in favor of providing an injured party with any windfall associated with collateral source payments.

First, the wrongdoer should not receive a benefit by being relieved of payment for damages because the injured party had the foresight to obtain insurance. Second, as between the injured party and the tortfeasor, any so-called windfall by allowing a double recovery should accrue to the less culpable injured party rather than relieving the tortfeasor of full responsibility for his wrongdoing. Third, unless the tortfeasor is required to pay the full extent of the damages caused, the deterrent purposes of tort liability will be undermined.

Along with the considerations underlying granting any windfall to the injured party is the fact that Ms. Miller paid her premiums and deserves all appropriate benefits. Moreover, it is absurd to suggest that the tortfeasor should receive a benefit from a contractual arrangement between Medicare and the health care provider. Simply because Medicare contracted with Ms. Miller’s physician to provide care at a rate below usual fees does not relieve a tortfea-sor from negligence or the duty to pay the reasonable value of Ms. Miller’s medical expenses. Therefore, we hold that evidence of collateral source payments or contractual allowances was properly withheld from the jury and her award of medical expenses was proper.

III.

Central Baptist’s final argument is that the trial court improperly limited its expert’s testimony regarding the lab report but did not so limit Ms. Miller’s expert on the same issue. Central Baptist claims that Denise Dunn’s testimony that Ms. Miller’s blood may have become hemolyzed was expert opinion that she was unqualified to make. Notably, the lab report in question was introduced by Central Baptist’s expert Cynthia Apple-gate. The trial court limited her testimony on the topic to a statement that the lab report did not show any irregularities because Ms. Applegate was not identified as an expert qualified to interpret the lab report. The lab report was stipulated into evidence as being one of Ms. Miller’s medical records. Ms. Dunn and Ms. Ap-plegate were both permitted to read from the record but not interpret its results. Likewise, counsel for both Central Baptist and Ms. Miller were permitted to read from the lab reports during their closing arguments. There was no unimpeachable expert testimony as Central Baptist contends because the testimony was limited to reading from the lab reports. Moreover, questions concerning the scope of evidence are left to the discretion of the trial court to determine whether to admit and exclude evidence. An abuse of discretion occurs when a “trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” The trial court was in the best position to determine whether to limit the scope of Ms. Apple-gate’s testimony and discovering no apparent abuse of discretion, we defer to the trial court’s judgment.

Accordingly, we affirm.

GRAVES, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ„ concur.

COOPER, J., files a separate opinion dissenting in part.

COOPER, Justice,

dissenting in part.

Because of her age, Appellee Golda Miller is a Medicare beneficiary. In the trial of her medical malpractice lawsuit against Appellant, Baptist Healthcare Systems, Inc., d/b/a Central Baptist Hospital (“Central Baptist”), Miller introduced as evidence and recovered in the judgment medical expenses “charged” by Dr. Charles R. Combs in the total sum of $81,840.00 and by Neurodiagnostics, P.S.C., in the total sum of $1,700.00. However, because of their status as “participating providers” of Medicare services, Dr. Combs and Neuro-diagnostics accepted from Centers for Medicare and Medicaid Services (“CMS”) as payment-in-full for their services the sums of $3,356.38 and $791.07, respectively. The majority opinion characterizes the difference between the amounts charged and the amounts paid as “collateral source benefits,” thus allowing Miller to prove and collect the amount “charged” and precluding Central Baptist from proving and limiting the judgment to the amount accepted as payment-in-full. That characterization ignores the realities of modern health care, i.e., “managed care,” and the relationship between medical providers and medical payers, especially when the payer is, as here, the government.

I. MEDICARE.

Prior to the Great Depression, physicians negotiated their own fees, usually accepting a sum based more on the patient’s ability to pay than any other factor. Michael K Beard, The Impact of Changes in Health Care Provider Reimbursement Systems on the Recovery of Damages for Medical Expenses in Personal Injury Suits, 21 Am. J. Trial Ad-voc. 453, 461 (Spring 1998). As the country sank deeper into depression, the American Hospital Association (AHA) sponsored the establishment of “Blue Cross,” a tax-exempt, pre-payment plan for hospital care, which was designed to provide hospitals with a stable source of revenues from lower and middle-income patients. Sylvia A. Law & Barry En-sminger, Negotiating Physician’s Fees: Individual Patients or Society? (A Case Study in Federalism), 61 N.Y.U. L.Rev. 1, 9 (1986). By 1942, similar plans, dubbed “Blue Shield,” were created to fund physician’s services. Id. at 9-10. Payment was made directly to the physician when the service was rendered. Id. The success of Blue Cross and Blue Shield encouraged private insurers to begin writing health insurance. Beard, supra, at 462-63. The payment to the provider was a percentage of the “usual, customary, and reasonable” (UCR) fee charged for a particular service. Providers participating in Blue Cross/Blue Shield accepted the UCR rate as full payment. Id. at 463.

In 1965, Congress enacted the Medicare Act, now codified at 42 U.S.C. § 1395, to provide health care for the aged, and the Medicaid Act, now codified at 42 U.S.C. § 1396, to provide health care for the indigent. By 1995, more than 40% of all health care expenditures were paid through these programs, as opposed to 32% by private insurance and 21% by individual patients. Beard, supra, at 464 (citing Sources of Financing for Health Care Services, Health Care Financing Review 1995 Statistical Supplement 14). As of 2001, 58% of expenditures for hospital care were paid by public payers (30% by Medicare, 17% by Medicaid, 11% by others), 34% by private insurance, and 3% by individual patients. CMS, Health Care Industry Market Update, Acute Care Hospitals 8 (July 14, 2003).

From 1965 until implementation of the Medical Fee Schedule in January 1992, Medicare reimbursed physicians for their “reasonable fees,” defined as the lowest of (1) the physician’s billed charge for the service, (2) the physician’s customary charge, or (3) the prevailing charge for that service in the community. Beard, supra, at 464-65 n. 68 (citing Physician Payment Review Commission, 1997 Annual Report 484). Under this system, the providers controlled their own fees by increasing their charges annually to assure higher reimbursements the next year. Id. at 468.

To control the spiraling costs of government-paid health care, Medicare implemented a “prospective payment system,” by which CMS, formerly known as the Health Care Financing Administration, establishes payment schedules based on diagnostic-related groups (“DRGs”) for hospitals and a resource-based relative value scale (“RBRVS”) for physicians. These pre-set payment schedules are based on the cost of the services rather than the billed, customary, or prevailing charges. Id. The DRGs and the RBRVS inform participating providers in advance what they will be paid for treatment rendered for particular types of illnesses or injuries and for particular types of medical treatments provided to Medicare patients. Susan Adler Channick, The Ongoing Debate Over Medicare: Understanding the Philosophical and Policy Divides, 36 J. Health L. 59, 69-70 (Winter 2003). “[Medicare] suppliers either take the price offered or they leave it. Given the historical importance of Medicare revenue to most providers, it has been rare for them to elect to ‘leave it.’ ” Id. at 69. Since the DRG and RBRVS rates are not negotiable, it is technically incorrect to refer to the difference between those rates and amounts “charged” as “discounts” or “write-offs.” In fact, the provider’s “charge” for services rendered is irrelevant when, as here, Medicare makes payment as the primary payer as opposed to a “conditional payment” as a secondary payer under 42 U.S.C. § 1395y(b)(2)(B). “Charges” are only relevant under the secondary payer statutes where, e.g., a policy of medical or liability insurance is the primary payer and costs are limited to those that are reasonable and customary. See 42 U.S.C. § 1395f. In summary:

The Medicare program is structured upon a prospective payment system under which health care providers that agree to accept primary payment from Medicare are reimbursed on a flat fee basis determined by average cost and length of stay for various diagnostic related groups (DRGs). If a provider’s actual cost falls below the DRG amount, it keeps the difference; if the provider’s actual cost exceeds the DRG amount, the provider absorbs or writes off the loss. Under the secondary payer statutes, the costs are limited to costs that are reasonable and customary.

Rose v. Via Christi Health Sys., Inc./St. Francis Campus, 113 P.3d 241, 246 (Kan.2005).

Furthermore, in order to qualify as participating providers (and, thus, be entitled to direct payment from CMS, as well as other benefits), Dr. Combs and Neurodiag-nostics agreed “not to charge, except as provided in paragraph (2) [deductibles and coinsurance], any individual or any other person for items or services for which such individual is entitled to have payment made under this subchapter .... ” 42 U.S.C. § 1395cc(a)(l)(A)(i). Thus, the acceptance by Dr. Combs and Neurodiagnos-tics of the payments authorized by the applicable DRG and/or RBRVS extinguished any additional potential liability of either Miller or Central Baptist to those providers. Holle v. Moline Pub. Hosp., 598 F.Supp. 1017, 1021 (C.D.III.1984). Under the reasoning of Our Lady of Mercy Hospital v. McIntosh, 461 S.W.2d 377, 379 (Ky.1970), Central Baptist has a collateral-source-based liability to Miller for the sums CMS actually paid to Dr. Combs and Neurodiagnostics for Miller’s treatment; and Miller is required to pay those sums over to CMS. 42 U.S.C. § 1395y(b)(2)(B)(ii); Rybicki v. Hartley, 792 F.2d 260, 262 (1st Cir.1986). “[T]he Medicare scheme is not one where the beneficiary contracts for double recovery. Most notably, Medicare has a right of sub-rogation allowing it to seek recovery of amounts paid to a beneficiary.” Rose, 113 P.3d at 247. Central Baptist does not contest its liability for the sums actually paid. However, neither Miller nor Central Baptist has any further potential liability to Dr. Combs or Neurodiagnostics, both of whom have been paid in full. Evanston Hosp. v. Hauck, 1 F.3d 540, 544 (7th Cir.1993); Rybicki, 792 F.2d at 262.

II. COLLATERAL SOURCE RULE.

The collateral source rule originated in English common law and debuted in this country in The Propeller Monticello v. Mollison, 58 U.S. (17 How.) 152, 15 L.Ed. 68 (1854). “Monticello,” a steamship, and “Northwestern,” a schooner, collided on Lake Huron, causing “Northwestern” to sink with its cargo of salt. Mollison, the owner of “Northwestern,” was insured, and his insurer compensated him in full for his loss. When Mollison sued the steamship, its owner raised as a defense that Mollison had already been fully compensated. The United States Supreme Court held that the insurance contract was “in the nature of a wager between third parties, with which the trespasser has no concern. The insurer does not stand in the relation of a joint trespasser, so that the satisfaction accepted from him shall be a release of others.” Id. at 155. The term “collateral source” derives from language used in Harding v. Town of Townshend, 43 Vt. 536 (1870) (“The policy of insurance is collateral to the remedy against the defendant, and was procured solely by the plaintiff and at his expense, and to the procurement of which the defendant was in no way contributory.”).

The collateral source rule first entered Kentucky’s jurisprudence in 1901 (not pri- or to the adoption of our present Constitution, as suggested in O’Bryan v. Hedgespeth, 892 S.W.2d 571, 578 (Ky.1995)—a suggestion no doubt intended as a signal that any legislative attempt to abolish the rule would be challenged as unconstitutional under the so-called “jural rights” doctrine). In Louisville & N.R. Co. v. Carothers, 65 S.W. 833 (Ky.1901), an opinion designated as “Not to be officially reported,” our predecessor court stated without citation to authority that:

The answer also attempted to plead as a defense that plaintiff had an accident policy entitling him to $30 a week from each of two companies, and that the plaintiff, by reason of his said contracts with said insurance companies, had presented a claim for insurance against the damages sustained by him, and that he was attempting to collect the same, all of which was stricken out, and properly so.

Id. at 834 (emphasis added). Later, the Court also held, again without citation to authority, that “[t]he question of plaintiffs employment or his accident policies could not be proven for the purpose of defeating or diminishing his right of recovery.” Id.

In Taylor v. Jennison, 335 S.W.2d 902 (Ky.1960), our predecessor court specifically adopted “the rule”:

The general rule recognized in other jurisdictions is that damages recoverable for a wrong are not diminished by the fact that the injured party has been wholly or partly indemnified for his loss by insurance (to whose procurement the wrongdoer did not contribute).... It is a collateral contractual arrangement which has no bearing upon the extent of liability of the wrongdoer.

Id. at 903 (emphasis added). On the same day, May 20,1960, the Court also rendered Conley v. Foster, 335 S.W.2d 904 (Ky.1960), in which the plaintiff had been reimbursed for his medical expenses by the United Mine Workers’ Welfare Fund, to which reimbursement he was entitled because of his UMW membership. The Court noted that the plaintiff had paid a monthly contribution out of his wages to obtain entitlement to the Welfare Fund’s benefits and held that “in the absence of an assignment or express contractual sub-rogation the injured person may recover medical and hospital expenses incurred on his behalf, at least where the expenses are paid pursuant to an agreement based upon the payment of premiums or contributions by or on behalf of the injured person.” Id. at 907 (emphasis added).

In Our Lady of Mercy Hospital v. McIntosh, the Court held that there could be no offset for those portions of the plaintiffs hospital and medical bills that were actually paid by Medicare, perceiving that the plaintiff had paid a premium for those benefits. 461 S.W.2d 377, at 379.

[McIntosh assumed the patient had paid something for the Medicare coverage. Id. at 379. In fact, hospital care, “Medicare Part A,” which was the medical expense at issue in McIntosh, is available to social security and railroad retirement recipients without payment of premiums. 42 C.F.R. § 406.6(a); 70C Am.Jur.2d Social Security and Medicare, § 2046. While premiums are charged for “Medicare Part B,” which includes physician’s bills, Part B is also funded partially by federal income and excise taxes imposed on every employed individual (through FICA withholding) and every employer in the United States, including, presumably, Central Baptist. 26 U.S.C. § 1401(b), 3101(b), 3111(b) Thus, it is arguable that there should be no collateral-source liability at all with respect to Medicare payments. Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789, 796 (Ky.1985) (“There is a sharp distinction between collateral source benefits and payments by another person also charged with liability for the injury which is the subject matter of the lawsuit.”); Restatement (Second) of the Law of Torts § 920A(1). If Miller can assert entitlement to the collateral source rule on the basis of having paid premiums for Medicare Part B coverage, Central Baptist can assert a defense to collateral source liability for having contributed to providing those benefits by payment of excise taxes because of its status as an employer. See Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 918 (Ky.1998) (“The logic behind [the collateral source] rule is that there is no reason why a wrongdoer should receive the benefit of insurance obtained by the injured party for his own protection.... Of course, that logic does not apply here, where the wrongdoer, Hardaway, also obtained the insurance which paid the workers’ compensation benefits to Southerland.”).]

In Daugherty v. Daugherty, 609 S.W.2d 127, 128 (Ky.1980), we held that medical bills incurred by the plaintiff for treatment at a military hospital were both provable and collectable, even though not payable by her because of her father’s status as a military servicemember.

The case at bar is similar to those involving Medicare and welfare funds. Although movant’s father was not required to pay premiums in order to qualify for medical treatment at a military hospital, the coverage was nonetheless a direct benefit of his military service.

Id. at 128. In other words, the plaintiffs father “paid” for the treatment by serving in the military. See also Rayfield v. Lawrence, 253 F.2d 209, 213-14 (4th Cir.1958). The same reasoning applies when an employee’s medical bills or lost wages are paid by the employer’s insurance carrier as a fringe benefit of the employment. Burke Enterprises, 700 S.W.2d at 796; Hellmueller Baking Co. v. Risen, 295 Ky. 273, 174 S.W.2d 134, 136 (1943).

All of these cases rightly hold that the tortfeasor is not entitled to the benefit of the injured party’s bargain when the injured party has purchased, either in cash or in services, payment of medical bills actually incurred and either paid or owing. That is the nature of the “collateral source rule,” as defined by these cases. It is an exception to the “strong public policy in this Commonwealth against double recovery.” Hardaway, 977 S.W.2d at 918. Otherwise, “[t]he object of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money. The object is not to place the plaintiff in a better position than he would have been had the wrong not been done.” Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374 (Ky.2000) (internal citations omitted). “The purpose of compensatory tort damages is to compensate; it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs.” Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 29 Ill.Dec. 444, 392 N.E.2d 1, 5 (1979). Nevertheless, the majority opinion in the case sub judice allows Miller to prove and collect medical expenses that were never incurred by her, were never owed by Medicare or any other entity, and payment for which was never expected by the medical providers. The majority purports to justify this result by substituting “reasonable value” for “expenses incurred” as the measure of damages. Ante, at 682. However, when a sum certain has been paid for services, the “reasonable value” cannot exceed the amount paid.

When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.

Restatement (Second) of Torts § 911 cmt. h (1979). See also Hanif v. Housing Auth., 200 Cal.App.3d 635, 246 Cal.Rptr. 192, 195-96 (1988) (“ ‘Reasonable value’ is a term of limitation, not of aggrandizement. ... [A] plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.”); Goble v. Frohman, 901 So.2d 830, 835 (Fla.2005) (“[Recovery for medical expenses [is limited] to the amount of medical expenses that he actually was obligated to pay.”).

The better-reasoned opinions of jurisdictions that have addressed this issue hold that the collateral source rule does not apply to this kind of phantom expense that was never incurred.

If Plaintiff could recover these fees without a showing of personal liability, she would reap a windfall recovery at the expense of the taxpayers, who made her Medicaid benefits possible. The collateral source rule does not apply because Plaintiff did not incur the Medicaid discount.

McAmis v. Wallace, 980 F.Supp. 181, 185 (W.D.Va.1997). (Like Medicare providers, Medicaid providers are required to accept the Medicaid payment as payment in full. 42 C.F.R. § 447.15. Thus, cases addressing the issue in the context of Medicaid “charges” versus actual payments are equally relevant to this issue.) See also Hanif, 246 Cal.Rptr. at 197 (limiting plaintiffs collateral-source recovery of medical expenses to $19,317, amount actually paid by Medi-Cal, not “reasonable value” of $31,618); Coop. Leasing, Inc. v. Johnson, 872 So.2d 956, 958 (Fla.Ct.App.2004) (limiting collateral-source recovery to $13,461 paid by Medicare, not $56,950.70 billed by medical providers: “[T]he reasonable value of medical services is limited to the amount accepted as payment in full for medical services.”); Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236, 1239 (2003) (“[T]he [Medicare] 'write-off ... is not an item of damages for which plaintiff may recover because plaintiff has incurred no liability therefore.”); Rose, 113 P.3d at 248 (amount of Medicare write-off must be credited against award for medical expenses, particularly where the Medicare provider was also the malpractice defendant); Bates v. Hogg, 22 Kan.App.2d 702, 921 P.2d 249, 253 (1996) (“[T]he collateral source rule is not applicable under these circumstances. [A] medical provider, by agreement and contract, may not charge Medicaid patients for the difference between their [sic] customary charge and the amount paid by Medicaid. Therefore, the amount allowed by Medicaid becomes the amount due and is the ‘customary charge’ under the circumstances we have before us.”); Kastick v. U Haul Co. of W. Mich., 292 A.D.2d 797, 740 N.Y.S.2d 167, 169 (2002) (“[Medicare] write-off ... is not an item of damages for which the plaintiff may recover because plaintiff has incurred no liability therefor.”); Moorhead v. Crozer Chester Med. Ctr., 564 Pa. 156, 765 A.2d 786, 789-90 (2001) (limiting plaintiffs recovery to Medicare payment of $12,167.40, not “reasonable value” of $108,668.31: “[W]here, as here, the exact amount of expenses has been established by contract and those expenses have been satisfied, there is no longer any issue as to the amount of expenses for which the plaintiff will be liable. In the latter case, the injured party should be limited to recovering the amount paid for the medical services .... [W]e find that the collateral source rule is inapplicable to the additional amount of $96,500.91.”).

I note in passing that although the majority cites and quotes Schwartz v. Hasty, 2003-CA-000796-MR, an opinion of the Court of Appeals addressing the collateral source rule in the context of underinsured motorist automobile insurance (and which is currently designated “not final and shall not be cited as authority in any courts of the Commonwealth of Kentucky”), ante, at 683, it ignores Thomas v. Greenview Hospital, Inc., 127 S.W.3d 663 (Ky.App.2004), which addressed the collateral source rule in the context of, coincidentally, Medicare write-offs. “[T]he trial court acted properly in allowing Thomas to introduce the full amount of the medical expenses billed and then reducing the judgment to the amount payable to the providers following the trial.” Id. at 675. In allowing the evidence, the Court of Appeals relied on Beckner v. Palmore, 719 S.W.2d 288 (Ky.App.1986), which mandated the same procedure with respect to medical bills previously paid in the form of basic reparation benefits (BRBs). Of course, the BRBs represented actual medical expenses incurred and paid, not phantom expenses such as Medicare write-offs. With respect to Medicare and Medicaid payments, I would limit both the evidence and the judgment to the amount actually incurred and paid.

As Professor Beard so aptly concluded:

A functional legal system should provide certain, fair, and rational rules to govern the affairs of its citizens. Moreover, given the concerns over the waste and inefficiency of our legal system, expecting legal rules to conform to the current economic realities seems reasonable. Oftentimes, the courts are not able to fully accommodate all these interests in deciding legal issues. However, a rule limiting the measure of recovery to paid charges (where the provider is prohibited from balance billing the patient) meets all of these criteria. Such a rule provides certainty without violating the principles protected by the collateral source rule. Even with a limit of recovery to the net loss there is no lessening of the deterrent force of tort law, the defendant does not gain the benefit of the plaintiffs bargain, and the plaintiff receives full compensation for the amount of the expense he was obligated to pay. Certainly, the collateral source rule should not extend so far as to permit recovery for sums neither the plaintiff nor any collateral source will ever be obligated to pay.
Moreover, the paid charge rule comports with the economic realities of our time because it adopts the same assessment of value determined by the marketplace. The participants in the health care industry all recognize the impact of market competition on the pricing of health care. This realization on the provider’s side is epitomized by the following comment in a well-respected medical economics publication: “If your stated fee for a procedure is $5,000, but no insurer is paying more than $2,500, what will you charge an out-of-network patient or someone with a medical savings account? ... If you’re willing to take $2,500, then that’s your fee.”

Beard, 21 Am. J. Trial Advoc. at 489-90 (quoting Mark Crane, Getting Peanuts, Med. Econ., September 22, 1997, at 145, 146).

Accordingly, I dissent and would reverse this case for a new trial at which only the actual medical expenses paid would be introduced into evidence and awarded in the judgment.

      . A phlebotomist is a person trained in phlebotomy, which is defined as follows: "Incision into or needle puncture of a vein for the purpose of drawing blood.” This process is also known as venipuncture: "The puncture of a vein, usually to withdraw blood or inject a solution.” Stedman's Medical Dictionary (27th ed.2000).

      . "To produce hemolysis or liberation of the hemoglobin from red blood cells.” Hemoly-sis is defined as "[a]lteration, dissolution, or destruction or of red blood cells in such a manner that hemoglobin is liberated into the medium in which the cells are suspended, e.g., by specific complement fixing antibodies, toxins, various chemical agents, tonicity, alteration of temperature with subsequent release of hemoglobin.” Stedman’s Medical Dictionary (27th ed.2000).

      . Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky.1965)

      . Greer’s Adm’r v. Harrell’s Adm’r, 306 Ky. 209, 213, 206 S.W.2d 943, 946 (1947).

      . Jarboe, 397 S.W.2d at 778; See, e.g., 7 Wig-more, Evidence, § 1917 (3d ed.1940).

      . Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590, 615 (1974); Keene v. Commonwealth, 516 S.W.2d 852, 855 (Ky.1974).

      . Pipers v. Rosenow, 39 A.D.2d 240, 243, 333 N.Y.S.2d 480 (N.Y.App.Div.1972) (holding that permitting jury to find malpractice from blood draw without expert testimony by applying the doctrine of res ipsa loquitur instead of eliciting expert testimony as to the standard of care to be reversible error); Mengelson v. Ingalls Health Ventures, 323 Ill.App.3d 69, 256 Ill.Dec. 38, 751 N.E.2d 91, 96 (2001) (noting that it is essential that plaintiff present expert testimony establishing that person conducting the blood draw was negligent and the negligence caused the injury); Arbogast v. Mid-Ohio Valley Med. Corp., 214 W.Va. 356, 589 S.E.2d 498, 502-03 (2003) (holding expert necessary in case of negligent blood draw causing a hematoma because a jury cannot consider whether defendant acted negligently until standard against which the defendant’s conduct is to be measured).

      . Keene, 516 S.W.2d at 855.

      . Kentucky recognizes an exception to the general requirement of expert testimony to prove causation where the negligence is so apparent that a layperson would have no difficulty recognizing it. See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky.1992) (discussing two following exceptions to general rule requiring expert testimony in medical malpractice cases: (1) where "any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care", and (2) when "medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.”); Jarboe, 397 S.W.2d at 778 (holding that where the common knowledge or experience of laymen jurors is extensive enough to recognize or infer medical negligence from the circumstances then an expert witness is not necessary); Harmon v. Rust, 420 S.W.2d 563, 564 (Ky.1967); Maggard v. McKelvey, 627 S.W.2d 44, 49 (Ky.App.1981); Butts v. Watts, 290 S.W.2d 777, 778 (Ky.1956).

        . Poe v. Rice, 706 S.W.2d 5 (Ky.App.1986) (holding summary judgment inappropriate to resolve an "essentially procedural conflict”).

      . Cf. Greathouse v. Am. Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky.App.1990).

      . 809 S.W.2d 717, 719 (Ky.App.1991).

      . Id. at 718-19.

      . 979 S.W.2d 114, 118 (1998).

      . O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky.1995) (holding statute allowing evidence of collateral source payments unconstitutional); 22 AM Jur.2d Damages 409 (2004).

      . 22 AM Jur.2d Damages 409 (2004). REST 2d TORTS § 920A (1979) (“Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable_b. Benefits from collateral sources. Payments made or benefits conferred by other sources are known as collateral-source benefits. They do not have the effect of reducing the recovery against the defendant. The injured party’s net loss may have been reduced correspondingly, and to the extent that the defendant is required to pay the total amount there may be a double compensation for a part of the plaintiff’s injury. But it is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor. If the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him. One way of stating this conclusion is to say that it is the tortfea-sor’s responsibility to compensate for all harm that he causes, not confined to the net loss that the injured party receives... Perhaps there is an element of punishment of the wrongdoer involved. (See § 901). Perhaps also this is regarded as a means of helping to make the compensation more nearly compensatory to the injured party. (Cf § 914A, Comment fc).”)

      . See Louisville & Nashville R.R. Co. v. Carothers, 65 S.W. 833, 834 (Ky.1901); McFarland v. Bruening, 299 Ky. 267, 185 S.W.2d 247, 249 (1945); Barr v. Searcy, 280 Ky. 535, 133 S.W.2d 714, 715 (1939).

      . 22 AM Jur.2d Damages 409 (2004) citing Our Lady of Mercy Hospital v. McIntosh, 461 S.W.2d 377 (Ky.1970).

      . 892 S.W.2d at 576.

      . Id.

        . Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky.App.2005). (Citations omitted).

      . Id.

      . CR 26.02.

      . Keene v. Commonwealth, 516 S.W.2d at 855.

      . Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

      . Health Insurance for the Aged Act, Pub.L. No. 89-97, 79 Stat. 290 (1965).

      . Grants to States for Medical Assistance Programs Act, Pub.L. No. 89-97, 79 Stat. 343 (1965).

      . Any deductibles or copayments actually paid by Miller would not be payments from a "collateral source,” so are not relevant to the issues on appeal.


author: Justice GRAVES.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Othaniel Cantrell NOURSE, Appellee, and Othaniel Cantrell Nourse, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2003-SC-0220-MR, 2003-SC-0221-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Rehearing Denied Dec. 22, 2005.

      Lisa Bridges Clare, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
    Gregory D. Stumbo, Attorney General, Ian G. Sonego, Charles R. Orange, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.
   Opinion of the Court by

Justice GRAVES.

A jury of the Logan County Circuit Court convicted Appellant, Othaniel Cantrell Nourse, of complicity to murder, tampering with physical evidence, possession of a handgun by a convicted felon, and of being a second degree persistent felony offender. Subsequent to the guilty verdict but prior to sentencing, Nourse moved for judgment notwithstanding the verdict (“JNOV”). The trial court granted the JNOV with respect to the complicity to murder conviction, but denied the motion as to the other convictions. Appellant was sentenced to not more than twenty (20) years imprisonment for the remaining convictions. Both the Commonwealth and Appellant now appeal to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm.

The crimes with which Appellant was convicted stemmed from an early Christmas morning murder and robbery. The evidence presented at trial tended to show the following: between 1:30 a.m. and 2:00 a.m. on the night of December 25, 2001, Denarrius Terry knocked on the apartment door where Appellant and his girlfriend were living. Appellant’s girlfriend, Julie Bogel, testified that she and Appellant were awakened by the knocking. Appellant eventually answered the door and after a brief discussion, he gave Terry possession of his handgun, which he kept between the mattresses in the bed.

About thirty minutes later, Terry returned to the apartment and knocked on the door. Bogel testified that Appellant again got up to answer the door. She stated that upon answering the door, he quickly returned to the room and placed something in the dresser drawer. Shortly after that, Bogel stated that Appellant returned to the room again, got dressed, and then displayed bullet cartridge shells which were resting in his hand. Appellant told Bogel that he needed to dispose of the casings and then left the house for about fifteen minutes. Appellant later told police that he threw the spent casings down a storm drain.

At some point, Bogel said that she heard someone (later identified as Terry) enter the residence. She stated that she then heal’d Appellant return to the apartment and state, “Cuz’, you got it lit up like the Fourth of July down there” (presumably referring to emergency vehicles located outside the scene of the murder). Bogel testified that she had known Appellant to refer to Terry as his cousin. Bogel went on to state that she observed Appellant go into the bathroom and wash blood off several dollar bills, later putting the bills on the window sill to dry. Bogel testified that Appellant told her that Terry gave him money for use of the gun. Appellant conceded in his statement that Terry had given him $90, but claimed the money was for marijuana.

Bogel went on to testify that later the next night, Appellant told her that Terry needed the gun because he had been robbed while playing dice or gambling. Appellant went on to explain that Terry killed the robber. In a taped statement, Appellant stated that when Terry first came to the door, Terry told him only that he wanted to borrow the gun to go shooting in the country. Appellant further stated that Terry did not tell him what actually happened until after he disposed of the casings. Terry had, in fact, used Appellant’s gun to murder and rob a man at a private gambling club. The murder was allegedly triggered by Terry’s repeated gambling losses to the victim. Further evidence was presented at trial and shall be developed herein as necessary.

The jury convicted Appellant of all charges submitted to it; however, the trial court granted Appellant’s post trial motion for JNOV with respect to the complicity to murder conviction. Appellant now appeals his remaining convictions to this Court, and the Commonwealth cross-appeals the trial court’s order vacating Appellant’s conviction of complicity to murder.

I. APPELLANT’S APPEAL

Appellant’s primary argument on appeal is that the trial court erred when it denied his motion to suppress evidence generated from the warrantless search of Julie Bo-gel’s apartment. He claims the search was conducted in violation of his rights under both the United States and the Kentucky Constitutions to be free of unreasonable searches. U.S. Const, amend. IV and XIV; Ky. Const. § 10. For the reasons set forth herein, we disagree.

In August 2002, some eight months after the murder, Sergeant Barry Dill of the Russellville Police Department received a telephone call from an unidentified woman. The woman purported to give information regarding the location of a weapon that was used to commit a murder in a gambling club on December 25, 2001. The woman stated further that the weapon was in the possession of either Heather Warden (Appellant’s girlfriend at the time, but now wife) or Appellant. The woman called Sergeant Dill a second time and stated that Appellant and his girlfriend were staying at an apartment at 910 Gilbert Street. Sergeant Dill then discovered that Appellant had an outstanding warrant for his arrest.

Based on this information, Sergeant Dill, Officer Ann Phelps, and Officer Troy Robinson proceeded to take steps to serve the arrest warrant on Appellant. Officer Phelps stated that she was familiar with the apartment and had served another unrelated arrest warrant on Appellant at the same address just two or three weeks prior. Officer Phelps further testified that she was informed that two other telephone calls (in addition to the telephone call received from the anonymous tipster) also verified the location of Appellant. Upon arriving at the Gilbert Street address, which was a public housing complex, the officers contacted the Housing Authority Director, Jack McLean (a.k.a. the landlord). McLean informed the officers that the apartment should be vacant because the lessee, Julie Bogel, was being or had been (the testimony is not clear) evicted. The officers told McLean that they had information that people were residing at the apartment. ' McLean then indicated to the officers that if anyone should be in the apartment, they would be trespassing.

Based on the information provided by McLean, the officers and McLean proceeded to check out the apartment. They knocked loudly on the door for several minutes and received no answer. Upon receiving no answer, McLean attempted to open the door with his pass key. Once the door was partially open, they heard a baby crying inside the apartment. Eventually, a woman (later identified as Heather Warden) came to the door and unhinged the inside chain which prevented the door from opening completely. Warden (now married to Appellant) testified that her two young children were present in the apartment at that time and that she was in her bathrobe when she answered the door. Officer Robinson testified that when he asked Warden where Appellant could be found, she motioned to him that Appellant was at the back of the apartment. Appellant was then apprehended, taken into custody, and removed from the apartment.

After Appellant was removed from the apartment, Officer Robinson testified that he asked and received consent from both McLean (the landlord) and Heather Warden to search the apartment. Warden testified that she did not actually give consent to Officer Robinson, but did admit signing a statement to the contrary. Officer Robinson testified that he believed neither Warden nor Appellant had a right to be in the apartment, but that he asked for Warden’s consent as a precaution. Among other things, Robinson’s search of the apartment produced the gun used to murder the victim.

Bogel testified that she had not actually been evicted at the time of the search, but had only received a notice of eviction. She also testified that she broke up with Appellant some time in June 2002 and had moved out of the apartment at that time. She stated that she removed her clothes, but left her furniture at the apartment. She further stated that she gave permission to Appellant to continue to live in the apartment, despite the fact that her lease did not permit her to sublease the apartment. Warden testified that she did not actually live at the apartment, but that she simply stayed the night on occasion as a houseguest. However, Warden admitted that she was present at the apartment several weeks earlier, with her children, when Appellant was served with a warrant at that location in an unrelated matter.

The trial court found Officer Robinson’s conduct to be permissible, ruling that it was reasonable for him to rely on the consent of both McLean and Warden as authority to conduct the search. He went on to find that it was reasonable for police to believe that Appellant and Warden were essentially “squatters,” ruling that “squatters” have no reasonable expectation of privacy in the place where they are “squatting.”

Appellant points out that he was not actually a “squatter” because Julie Bogel had not been evicted at the time of the search. Therefore, Julie Bogel still had a right to occupy the apartment up and until the date of actual eviction. See Clay v. Terrill, 670 S.W.2d 492, 493 (Ky.App.1984) (tenant has right to possess apartment until date of actual order of eviction). Since Julie Bogel had a right to be in the apartment, she had the ability to transfer actual possession of the apartment to Appellant (even though her lease was subject to immediate termination for doing so) or at the very least, allow him to stay in the apartment as a houseguest. Once Appellant achieved the minimum status of house-guest, he had a legitimate expectation of privacy in the premises. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

Even if Appellant had a legitimate expectation of privacy in the premises, the Commonwealth argues that the search was nonetheless constitutional based on Officer Robinson’s reasonable belief that he had been given consent to search. In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the United States Supreme Court stated, “There are various elements, of course, that can make a [war-rantless] search of a person’s house reasonable — one of which is the consent of the person or his cotenant.” Id. at 183-4, 110 S.Ct. at 2797 (emphasis added). Because it was reasonable for Officer Robinson to believe that Heather Warden was a coten-ant of the apartment, we agree with the Commonwealth that the search of Julie Bogel’s apartment was constitutional.

In this case, neither Julie Bogel nor Appellant gave consent to search the premises, but rather third parties gave consent to search — namely, Heather Warden and the landlord, Jack McLean. The test for whether third-party consent is valid is whether a reasonable police officer faced with the prevailing facts reasonably believed that the consenting party had common authority over the premises to be searched. United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004) (“Even if a third party does not possess actual common authority over the area that was searched, the Fourth Amendment is not violated if the police relied in good faith on a third party’s apparent authority to consent to the search.”); see also, Rodriguez, supra.

Officer Robinson testified that he relied on the landlord’s statement that any person inside the apartment was a trespasser since the lessee, Julie Bogel, had been or was being evicted (the testimony is unclear as to what the landlord actually told the officers). Officer Robinson further stated that he obtained Warden’s consent as a precaution (presumably, because he wanted to preserve the legality of the search in case he was wrong about assuming that McLean had authority to consent).

These facts present two distinct questions of law: (1) whether it was reasonable for the officers to believe that the landlord had authority over the premises; and (2) if it was unreasonable for the officers to believe that the landlord had authority over the premises, did the consent of Heather Warden rectify the initial error? This Court’s inquiry into the reasonableness of a warrantless search “must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Rodriguez, supra at 189, 110 S.Ct. at 2801 (citation and quotations omitted). Because we ultimately find that the facts available to the officers at the moment of the search would warrant a reasonable person to believe that Heather Warden had common authority over the apartment, we need not determine whether or not it was reasonable for the officers to believe that the landlord had authority over the premises.

The facts available to the officers at the time of the search were these: they had an anonymous tip that Appellant was residing at 910 Gilbert Street with his girlfriend. When they arrived at 910 Gilbert Street, the tip was corroborated to the extent that they found Appellant and his girlfriend (now wife), Heather Warden, in the apartment. Warden testified that both of her young children were at the apartment at the time the officers knocked on the door and that she was in her bathrobe. She further testified that she was at the apartment two or three weeks prior when Officer Phelps served an unrelated warrant on Appellant. Finally, the evidence established that Warden signed a statement giving her express consent to search the apartment.

In United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 998 n. 7, 89 L.Ed.2d 242 (1974), the United States Supreme Court stated that “[cjommon authority rests on mutual use of the property by persons generally having joint access or control for most purposes.... ” The Court stated that “common authority is, of course, not to be implied from the mere property interest a third party has in the property,” nor does it “rest upon the law of property with its attendant historical and legal refinements.” Id. at 171, n. 7, 94 S.Ct. at 993 n. 7 (citing Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another even though landlord had legal authority to access home) and Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel clerk could not validly consent to search of customer’s room even though clerk had legal authority to access room)). Rather, the Court explained that the concept of common authority is meant to rest on the premise that any cohabitant “has the right to permit the inspection [of his living space] in his own right and that the other [cohabitants] have assumed the risk that one of their number might permit the common area to be searched.” Id.

Since the holding in Matlock, courts have repeatedly held that the proper inquiry for police when determining if a third party has authority to consent to the search of a residence is not whether the third party has legal authority to enter or control the residence, but whether it is reasonable to believe that the third party actually lives at, has general access to, and/or possesses mutual use of the residence for most purposes. See Rodriguez, supra, at 186, 110 S.Ct. at 2800 (United States Constitution is not violated when officers enter a premise if they reasonably believe “that the person who has consented to their entry is a resident of the premises”); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir.2001) (“Authority to consent originates not from a mere property interest, but instead from mutual use of the property by persons generally having joint access or control for most purposes .... ”); United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004)(same); United States v. Clutter, 914 F.2d 775, 777-778 (6th Cir.1990) (defendant’s twelve and fourteen year old children were competent to give consent to search because “in common experience family members have the run of the house”); United States v. Reeves, 594 F.2d 536, 539 (6th Cir.1979) (apparent cotenant of apartment who was unrelated to suspect had common authority to permit search of suspect’s room); United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir.2004) (consent to search valid even though person who consented to a search of the motel room was not the “registered renter” of the room); State v. Vazquez, 87 Conn.App. 792, 867 A.2d 15, 22-23 (2005) (suspect’s girlfriend who apparently lived in home and whose children were present when the police arrived had common authority to permit search of home even though police knew that the phone number registered to the home was only in the suspect’s name); People v. Mahaffey, 166 Ill.2d 1, 209 Ill.Dec. 607, 651 N.E.2d 1055, 1065 (1995) (it was reasonable for police to presume that person was a cotenant and thus, had common authority over the premises to consent to a search where person answered the door during the early morning hours, directed the officers to where the suspect was in the home, and signed a form consenting to a search of the home).

Two decisions worthy of particular note in this case are United States v. Jenkins, 92 F.3d 430 (6th Cir.1996) and State v. Lambert, 134 Or.App. 148, 894 P.2d 1189 (1995). In Jenkins, the United States Court of Appeals for the Sixth Circuit stated that in the absence of additional information to the contrary, it is generally considered reasonable for police officers to presume that persons answering knocks at the door of a residence have authority to consent to a search of that residence. Id. at 437. In Lambert, the Oregon Court of Appeals found that a woman who answered the door and who claimed that she lived at the apartment was competent to give consent to search the apartment even though she was not a party to the rental agreement and did not have authority under the lease to reside in the apartment. Id. at 1191-92. The Oregon Appeals Court stated that being “subject to eviction” had no bearing on whether the woman possessed “joint access to and control of the premises for most purposes .... ” Id.

When considered in light of competing policy considerations pertaining to the Fourth Amendment (ensuring workability for officers making snap decisions in the field versus discouraging unnecessary war-rantless searches), we find the totality of the circumstances in this case favor deeming the warrantless search of Bogel’s apartment reasonable. Officer Robinson believed that Appellant and Warden were trespassers. However, as a precaution, he nevertheless obtained consent from an apparent resident of the apartment, Warden. Based on the facts available to Officer Robinson and his fellow officers at the time of the search, it was objectively reasonable for the officers to believe’ that Heather Warden had common authority over the apartment (despite the revelation, based on facts discovered after the search, that such authority was likely apparent and not actual). Accordingly, the trial court did not err when it denied Appellant’s motion to suppress evidence obtained as a result of the warrantless search of Julie Bogel’s apartment.

Appellant next argues there was insufficient evidence to convict him of tampering with physical evidence. When determining whether it was error for the trial court to submit a specific charge to the jury, this Court must determine whether the evidence, when considered in the light most favorable to the Commonwealth, is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty of each and every element of that crime. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

KRS 524.100 states as follows:

(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or
(b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered.

Appellant contends there was insufficient evidence to establish that he believed that an official proceeding was pending or may be instituted when he disposed of the spent bullet casings. We find this argument to be completely without merit. The circumstantial evidence overwhelmingly suggests that Appellant knowingly tampered with physical evidence when he threw the spent bullet casings down the storm drain at 2:30 a.m. after lending his gun to a friend just thirty minutes earlier. See Baker v. Commonwealth, 860 S.W.2d 760, 761 (Ky.1993) (convictions may be obtained on the basis of circumstantial evidence). The fact that Appellant claims he was unaware that a crime had actually occurred until after he threw the casings down the storm drain is unavailing since the jury is not required to believe self-serving statements from the defendant. See Edmonds v. Commonwealth, 906 S.W.2d 343, 347 (Ky.1995) (citing Armstrong v. Commonwealth, 517 S.W.2d 233, 235 (Ky.1975)).

II. COMMONWEALTH’S CROSS-APPEAL

The Commonwealth appeals the trial court’s JNOV order, which vacates the jury verdict finding Appellant guilty of complicity to murder. Ky. Const. § 115; Commonwealth v. Brindley, 724 S.W.2d 214, 216 (Ky.1986) (Commonwealth may appeal a JNOV order entered by the trial court in a criminal case). The trial court determined that Appellant could not be convicted of complicity to murder because the Commonwealth did not present sufficient evidence to establish that Appellant acted intentionally when he contributed to the death of the victim. The Commonwealth argues that the evidence was sufficient to infer that Appellant acted intentionally, however, even if the evidence is found to be insufficient, the trial court erred by not entering a conviction for the lesser included offense submitted to the jury, facilitation to murder.

When the trial court grants a JNOV in a criminal case on grounds of insufficient evidence, we utilize the standard of review employed by this Court in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991) for directed verdicts. See Commonwealth v. Runion, 873 S.W.2d 583, 585 (Ky.App.1993), disapproved on other grounds by Commonwealth v. Harrell, 3 S.W.3d 349 (Ky.1999). Benham, supra, directs this Court to view the evidence in the light most favorable to the Commonwealth and from that portrayal, determine whether it is “sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty .Id at 187-88.

In this case, the Commonwealth submitted a theory of complicity to murder pursuant to KRS 502.020(1). KRS 502.020(1) “applies when the principal actor’s conduct constitutes the criminal offense.” Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky.2000) (emphasis in the original). Here, Terry’s conduct, use of the gun to shoot the victim, constituted the criminal offense of murder. “[A] person can be guilty of ‘complicity to the act’ under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act.” Id.

The Commonwealth argues that the evidence was sufficient to reasonably infer that Appellant intentionally promoted or facilitated the commission of the murder. We disagree. The record is devoid of any evidence establishing that Appellant intended to aid, promote or facilitate the actual shooting or murder of the victim. Indeed, the evidence established that Appellant did not even know the victim. After careful review, we agree with the trial court that the evidence, while sufficient to infer reckless or even wanton conduct on the part of Appellant, is not sufficient to infer intentional conduct pursuant to KRS 502.020(1).

The Commonwealth argues, nonetheless, that even if the evidence was insufficient to prove complicity to murder pursuant to KRS 502.020(1), the trial court erred by failing to impose a conviction for the lesser included offense of criminal facilitation to intentional murder. KRS 506.080; see Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky.1995) (facilitation is a lesser included offense of complicity). For the reasons set forth below, we disagree.

One of the principal distinctions between facilitation and complicity is that “facilitation requires knowledge that another intends to commit a crime, while complicity requires an intention to promote or facilitate commission of the offense.” Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky.1993). Explained another way, “[f]acilitation reflects the mental state of one who is ‘wholly indifferent’ to the actual completion of the crime.” Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky.1995). At first blush, it seems obvious that Appellant knew that Terry intended to commit some type of crime when he loaned his gun to Terry during those early morning hours. However, simple knowledge that a crime will be committed is not enough to satisfy the knowledge element for facilitation to intentional murder. See Smith v. Commonwealth, 722 S.W.2d 892, 896-97 (Ky.1987) (defendant not entitled to instruction on facilitation to rape and murder where he did not know about principal’s intention to commit those particular crimes at the time he provided assistance to the principal), see also Young v. Commonwealth, 50 S.W.3d 148, 165 (Ky.2001) (evidence was sufficient to support conviction for criminal facilitation to murder where it was reasonable to infer from defendant’s conduct that he had prior knowledge that principal intended to murder the victim). Rather, the Commonwealth must prove that Appellant had knowledge of the principal’s intention to commit intentional murder, and with that knowledge, nonetheless, provided the principal with means to commit that crime. KRS 506.080 (commentary) (“To be guilty of the offense of facilitation, an individual must facilitate the commission of a crime that is actually committed.”); See also, 1 Cooper, Kentucky Instructions to Juries (Criminal) § 10.17 (4th ed. Anderson 1993) (listing knowledge of crime that was actually committed as an essential element of the offense). As discussed above, there is simply insufficient evidence to establish or infer that Terry told Appellant of his plan to intentionally murder the victim when he borrowed the gun from Appellant. While reckless or even wanton conduct on the part of Appellant may be inferred under these circumstances, knowledge about Terry’s particular intentions at the time when Appellant loaned him the gun cannot be inferred from these facts. Thus, there was insufficient evidence to support either complicity or facilitation to intentional murder.

Appellant’s convictions and sentences in the Logan County Circuit Court for Possession of a Handgun by a Convicted Felon, Tampering with Physical Evidence, and of being a Second-Degree Persistent Felony Offender are affirmed. The trial court’s order setting aside Appellant’s conviction for .complicity to murder is affirmed.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, ROACH, and SCOTT, J.J. concur.

WINTERSHEIMER, J., concurs in part and dissents in part.