author: Justice WINTERSHEIMER.

text:
    Tracy STEWART, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0359-DG.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Joseph Ray Myers, Assistant Public Advocate, Department of Public Advocacy, Frankfort, ICY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Daniel Luke Morgan, Justice and Public Safety Cabinet, Office of Legal Services, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice WINTERSHEIMER.

This appeal is from a decision of the Court of Appeals which affirmed an order of the circuit court dismissing a pro se petition by Stewart for declaratory judgment after the Parole Board reversed its decision to parole him.

The questions presented by Stewart involve whether the denial of parole was unlawful in that the Parole Board violated various statutes, exercised power arbitrarily and unconstitutionally applied statutes in an ex post facto manner.

The real issue involved in this case concerns the scope and authority of the Parole Board in rendering a decision to deny parole to a prison inmate.

Stewart was convicted of first-degree tape and first-degree burglary in 1985, receiving a sentence of ten years. He was paroled in 1990. The sex offender program legislation was not in effect at the time of the 1985 conviction for rape, but was in place when he was paroled in 1990. While on parole, Stewart committed first-degree robbery and while the robbery charge was pending, he came before the court for the parole violation and was given a serve-out on the remainder of his original sentence. He was convicted of the robbery charge as well as being a second-degree persistent felony offender. His enhanced sentence for that crime was life in prison.

Stewart came before the Parole Board in January 2001, and it recommended that his parole be reinstated. Prior to its initial meeting, the chairman of the Parole Board wrote a memorandum to Stewart, stating that Stewart would be denied parole unless he was denied entrance into, terminated from, or completed the sex offender program.

In February 2001, a memorandum was sent to all Parole Board members stating that Stewart was recommended for parole on January 26, 2001, but due to the fact he was an untreated sex offender, it was requested by the chairman that they review the file and record their vote. All Parole Board members voted to send the case back before the Parole Board. A handwritten note on the memorandum indicated that the Board erroneously believed him to be one who wasn’t required to attend the Sex Offender Treatment Program. Subsequently, the Board reviewed the case and denied parole, rescinding its previous recommendation and deferring the matter for further consideration in 30 months.

The Board found Stewart was a poor parole risk because of the seriousness of the offenses, the violence involved in the crime, his juvenile record, the crime involved a firearm, and he had violated parole when he had been previously released. The fact that Stewart had not completed the Sex Offender Treatment Program was not one of the stated reasons.

Stewart then filed a pro se declaratory action in circuit court which ruled in favor of the Parole Board and the Court of Appeals affirmed that decision. In the meantime, Stewart was granted parole subject to conditions involving sexual offenders. He now contests this condition. This Court granted discretionary review.

1(A). Rescission was Proper

In order to give a complete review of this matter, we now consider the question of rescission. Stewart contends that the decision of the Board to rescind its original recommendation for parole was improper because that decision was arbitrary and based on improper evidence. We disagree. Belcher v. Kentucky Parole Board, 917 S.W.2d 584 (Ky.App.1996), determined that all that was required in the parole review process when parole is denied is that the prisoner have the opportunity to be heard and that he be advised in general terms of the reason for the decision of the Board. The judicial standard of review of decisions of the Parole Board is limited to an examination of compliance with the terms of KRS 439.250 to 439.560. In this case, Stewart was advised of the reasons for the decision of the Board and had the opportunity to be heard. The due process rights of Stewart have been satisfied.

Denial of parole is an administrative function and this Court cannot probe the mind of the Board in order to determine the sufficiency of the reasons.

The parole-release decision ... depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which if shown, mandate a decision favorable to the individual.

Belcher, supra, 917 S.W.2d at 587 quoting Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 9-10, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979); see also Johnson v. Rodriguez, 110 F.3d 299 (5th Cir.1997), cert. den., 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997), which held in part that because there was no protected liberty or property interest in parole, prisoners cannot mount a challenge against any state parole review procedure on procedural or substantive due process grounds. The fact that the Board may have changed its mind before the inmate was actually placed on parole is not a violation of due process.

501 KAR 1:030 § 4(2)(a) provides that the Board may rescind a parole recommendation any time prior to the release of an inmate on parole. Consequently, an inmate, who has no fundamental right to parole, does not have an actual expectation of parole even after a recommendation has been made. Clearly, the Board has the authority to rescind any such recommendation at any time prior to the actual release.

1(B). Calculation of Sentence

Stewart argues that the treatment program should not have been applicable to him because he had already served his ten-year sentence for rape when he came before the Parole Board in 2001. The Commonwealth responds that the rape sentence had been aggregated with his life sentence for second-degree persistent felony offender, thereby making him eligible as a sex offender. While Stewart was on parole in 1992 for the rape conviction, he committed the additional crime of first-degree robbery and was determined to be a second-degree persistent felony offender for which he received a life sentence.

The Court of Appeals acknowledged that the rape and burglary and the subsequent robbery and PFO sentences may have been ordered to run consecutively. The panel stated, however, that by law, the sentences may only run concurrently with each other. It relied on the cases of Bedell v. Commonwealth, 870 S.W.2d 779 (Ky.1994) and Mabe v. Commonwealth, 884 S.W.2d 668 (Ky.1994). Accordingly, the Court of Appeals rejected the argument that Stewart had already served-out his ten-year sentence for the sex offense when he came up for parole in 2001.

We do not agree with this analysis, although it is true that it is improper to order a term of years sentence to run consecutively with a life sentence. Bedell, supra; see also Wells v. Commonwealth, 892 S.W.2d 299 (Ky.1995). All of those cases involve situations where the defendant had been convicted at the same trial of crimes where one sentence was for a term of years and the other was for life. This situation is different. Here, Stewart was sentenced to a term of years in 1985, but was given a serve-out on that sentence to be completed in 1997. It was after he was given the serve-out that he received his life sentence. He would not start serving a life sentence until after he had finished his term of years. He came before the Parole Board during the term of his life sentence, not the rape conviction. However, we find that the calculation of multiple sentences in this particular situation does not control the final resolution of this matter. This case is governed pursuant to the authority of the Parole Board to rescind its initial recommendation for parole prior to any release being given. Belcher.

II. Section Two

Stewart contends that the Board’s decision to rescind its recommendation violated Section Two of the Kentucky Constitution. We have fully considered this argument and find it to be without merit. As this Court established long ago, parole is not a right but a privilege. Commonwealth v. Polsgrove, 231 Ky. 750, 22 S.W.2d 126 (1929). Granting of parole is not a right but a matter of grace or gift to persons deemed eligible. Lynch v. Wingo, 425 S.W.2d 573 (Ky.1968).

III. Ex Post Facto

Stewart claims that the decision of the Board to rescind its original favorable recommendation for parole was a violation of the federal and state constitutions because it applied KRS 439.340(11) and KRS 197.400-440 in an ex post facto manner to his prejudice.

It is well recognized that one of the functions of the Ex Post Facto Clause is to prevent a retroactive increase in punishment for a crime after its commission. Retroactive changes in laws relating to parole, in some instances, may be a violation. See Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). However, in this situation, the decision to grant or deny parole is entirely discretionary with the Board. Belcher. Parole is a privilege and its denial has no constitutional implication. Morris v. Wingo, 428 S.W.2d 765 (Ky.1968). Although recognizing important concerns in this area of the law, the United States Supreme Court has noted that the Ex Post Facto Clause should not be used for micromanagement of an endless array of legislative adjustments to parole and sentencing procedures. The Court also stated that individual states must have flexibility in formulating parole procedures and addressing problems associated with confinement .and release. See Gamer, supra.

In order to ascertain whether an ex post facto violation has occurred, the court must first determine whether a change in law or regulation creates a significant risk of increased punishment for the inmate. California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). “When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” See Garner, 529 U.S. at 255, 120 S.Ct. 1362.

None of these elements are present in this case. There is no enhancement of punishment or elongation of a sentence. The retroactive application of a Sex Offender Treatment Program does not create an unconstitutional ex post facto violation. See Garland v. Commonwealth, 997 S.W.2d 487 (Ky.App.1999). As noted in that case, the sentence remains at a fixed term and parole eligibility is of no consequence. It bears repeating, parole is a privilege and not a right. It is considered on a case-by-case basis. The imposition of a condition of attendance at a Sex Offender Treatment Program is not punishment. It is merely a condition of parole which is within the sound discretion of the Parole Board. The completion of the program does not make the punishment more onerous for crimes committed before its enactment. Stewart has not been disadvantaged.

Utilization of the Sex Offender Treatment Program by the Parole Board is one of the options available to the Board in determining the conditions of parole. The pertinent information required by statute is not limited to the individual facts of a particular crime, but rather encompasses matters that are relevant to the question of a determination that parole would be in the best interests of society. The Sexual Offender Treatment Program is required for sex offenders, but that does not mean that it cannot be a condition of parole for other offenders on a case-by-case basis. There was no retroactive or arbitrary or capricious application of the responsibilities of the Board. There has been no violation of either the federal or state constitutions in any respect in this matter.

The opinion of the Court of Appeals is affirmed.

All concur.


source: Caselaw Access Project

author: Justice COOPER. WINTERSHEIMER, Justice,

license: Public Domain

text:
    Denarrius TERRY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0237-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Randall L. Wheeler, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, John R. Tarter, Office of the Attorney General, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

Appellant, Denarrius Terry, was convicted by a Logan Circuit Court jury of murder, robbery in the first degree, and wanton endangerment in the first degree, and sentenced to a total of forty-five years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting five claims of reversible error, viz: (1) admission of hearsay statements of a nontestifying accomplice; (2) limitation of defense cross-examination of an alleged eyewitness; (3) excessive examination by the trial judge of another alleged eyewitness; (4) admission of juvenile misdemean- or adjudications during the penalty phase of the trial; and (5) admission of improper victim impact evidence during the penalty phase of the trial. We reverse and remand for a new trial primarily because of the admission into evidence of a nontestify-ing accomplice’s out-of-court statements that inculpated Appellant as the perpetrator of the offenses. We will also address other issues that are likely to recur upon retrial. Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky.1999).

In the early morning of December 25, 2001, the Russellville Police Department received a call that a shooting had occurred at Big Jessie’s bar in Russellville, Kentucky. When the police arrived, they found Theodore (“Candy Man”) Suggs shot dead inside the bar. Waiting outside were Nakeitha (“KiKi”) Jackson, the owner of Big Jessie’s, Calvin Merrell, the bartender, and Servado Boyd, a passer-by. Jackson and Merrell told police that they and Alexander (“RiRi”) Browder had been present when Appellant shot and killed Suggs, but that Browder had fled the scene. Boyd had arrived after the shooting. Jackson told the police that Appellant and Suggs were “shooting” dice, that Suggs had won all of Appellant’s money, and that Appellant had departed with the ostensible intent of getting more money. Upon his return, Appellant pulled a pistol and began shooting, killing Suggs and narrowly missing Jackson. Jackson then removed $300 to $400 from Suggs’s vest and gave it to Appellant who then departed. Merrell gave a videotaped statement at the police station essentially agreeing with Jackson. Browder subsequently told police that he did not witness the shooting but that, as he was leaving Big Jessie’s, he saw “out of the corner of his eye” Appellant pull something from his waist area. Once outside, Browder heard gunshots and left the scene.

When contacted by police, Appellant admitted that he was at Big Jessie’s on the night of December 24-25, 2001, but denied shooting Suggs, claiming that Jackson, Merrell, and Suggs were still in the bar when he left. The murder weapon, a handgun owned by Cantrell Nourse, was later found under a mattress in the bedroom of Nourse’s residence. Appellant was charged with and convicted of the murder and robbery of Suggs and the wanton endangerment of Jackson. Nourse was charged in a separate indictment with complicity to murder and rob Suggs, as well as possession of marijuana and being a felon in possession of a handgun. At Appellant’s trial, Nourse invoked his Fifth Amendment right not to testify. Thus, he was an “unavailable” witness as defined in KRE 804(a)(1).

I. HEARSAY.

Julie Bogle, Nourse’s domestic companion, testified that she and Nourse were asleep in bed when someone knocked on their door between 1:30 and 2:00 a.m. on December 25, 2001. Nourse went into the living room to answer the door. Bogle could hear Nourse talking with a person whom she recognized by voice as Appellant. Nourse then returned to the bedroom and retrieved something from between the bed’s mattresses. Bogle could not see the object retrieved, but Nourse later told her that it was his handgun. Although there was no objection to this statement, a bench conference ensued concerning whether Nourse’s statement fell within any exception to the hearsay rule. The trial court ultimately concluded that it did not. Defense counsel did not request an admonition to the jury to disregard the statement and no admonition was given.

Bogle then testified that Nourse returned to the living room and that she heard the front door shut. Nourse then returned to bed. Approximately twenty to thirty minutes later, Bogle heard another knock at the front door and Nourse again went into the living room. Bogle again heard him talking with a person whom she recognized by voice as Appellant. Nourse re-entered the bedroom with a handgun, placed the gun in a dresser drawer, and began getting dressed. When Bogle asked him where he was going, he extended his hand to show her five empty shell casings and said that he “had to go take care of them.” Nourse then left the house for about fifteen minutes. When he returned, Bogle overheard Nourse say, “Cuz, you’ve got it lit up like the Fourth of July down there.” The trial court overruled Appellant’s objection to this statement, apparently believing either that it was admissible as an adoptive admission, KRE 801A(b)(2), or that there was no proof that Nourse was addressing Appellant when he made the statement. Shortly thereafter, however, as Bogle was entering the bathroom, she observed Appellant in the living room. She also observed Nourse standing at the bathroom sink washing blood off of a wad of money.

When Nourse finally returned to bed at about 4:30 to 5:00 a.m., he told her' that “it was Denarrius that had come in the first time and got his gun and he was bringing it back because he had killed a guy named ‘Candy Man.’ ” The trial court overruled Appellant’s objection to this testimony in the belief that it fell within the hearsay exception for admissions by a party. KRE 801A(b)(l). While that would have satisfied the hearsay aspect of a statement made by Appellant to Nourse, no exception applies to Nourse’s repetition of the statement to Bogle. KRE 805; see Thurman v. Commonwealth, 975 S.W.2d 888, 893 (Ky.1998) (double hearsay admissible only if each part of the combined statements conforms with an exception to the hearsay rule). Nevertheless, when Bogle further testified that she did not know who had told Nourse that Appellant had killed “Candy Man,” the trial court retroactively sustained the objection and admonished the jury “to disregard the statement she made as to the statement Mr. Nourse made to her about who committed this act.” Appellant’s motion for a mistrial was overruled.

Bogle’s testimony that Nourse told her that the object he retrieved from between the mattresses of their bed was his handgun fell within the hearsay exception for statements against interest, KRE 804(b)(3), as a declaration against Nourse’s own penal interest since it implicated him in the murder of Suggs and in the additional offense of possession of a handgun by a convicted felon. See Brock v. Commonwealth, 947 S.W.2d 24, 31 (Ky.1997). As also required by KRE 804(b)(3), the statement was corroborated by proof that Nourse’s handgun was used to kill Suggs. At that point, the hearsay statement tended to inculpate only Nourse and, no doubt, that was why defense counsel did not object to its admission. However, Bogle’s later testimony that Nourse told her that he gave the gun to Appellant who then used it to kill Suggs was clearly inadmissible against Appellant. Bridon v. United States, 391 U.S. 123, 129 n. 3, 88 S.Ct. 1620, 1624 n. 3, 20 L.Ed.2d 476 (1968) (“We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, ... the problem arising only because the statement was ... admissible against the declarant....”).

The “Fourth of July” statement could not have referred to the shooting itself, if Bogle was truthful in her testimony that Nourse did not leave the residence until after he placed the gun in the dresser and showed her the spent shell casings. Under that scenario, a reasonable jury could assume that the “Fourth of July” statement referred to the presence of police vehicles with flashing lights at the scene of the crime. In fact, the prosecutor admitted as much when the trial court inquired as to the relevancy of the statement and the prosecutor replied that Suggs’s murder was the only exciting event that occurred in Russellville on Christmas morning, 2001. Of course, the jury could have disbelieved Bogle’s exculpation of Nourse and believed that Nourse accompanied Appellant to Big Jessie’s, and that the “Fourth of July” remark did refer to the shooting. Either way, Nourse’s statement inferentially inculpated Appellant in Suggs’s murder. Bogle was not present in the room with Appellant when Nourse made the statement and did not discover that Appellant was still in the residence until after the statement was made. She could not and did not testify that Appellant agreed or disagreed with the statement, or that he heard it and did not deny it. Thus, the statement was not admissible as an adoptive admission. Robert G. Lawson, The Kentucky Evidence Laiv Handbook § 8.20[4], at 595 (4th ed. LexisNexis 2003) (“A statement may not be admitted as an adoptive admission unless it is established that the party heard and understood the statement and remained silent.”) (citing James v. Wilson, 95 S.W.3d 875, 899 (Ky.App.2002); Ray v. Ray, 196 Ky. 579, 245 S.W. 287, 290 (1922)). Compare Marshall v. Commonwealth, 60 S.W.3d 513, 521 (Ky.2001); Hodge v. Commonwealth, 17 S.W.3d 824, 847 (Ky.2000).

Finally, as the trial court ultimately concluded, Bogle’s testimony that Nourse told her that Appellant had used his gun to kill “Candy Man” did not fall under any exception to the hearsay rule. The Commonwealth’s reliance on Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990) (“Taylor /”) and Taylor v. Commonwealth, 63 S.W.3d 151, 166-68 (Ky.2001) (“Taylor II ”) is misplaced. As here, Taylor I admitted an out-of-court statement by a nontestifying accomplice in which the accomplice identified the defendant as the killer. As here, the accomplice was unavailable because he had exercised his Fifth Amendment privilege not to testify. Because the statement also inculpated the accomplice, it was admitted against the defendant as a statement against the accomplice’s penal interest. 821 S.W.2d at 75. Now see KRE 804(b)(3). When the issue was raised again on appeal from the denial of an RCr 11.42 motion and following the United States Supreme Court’s plurality decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), we noted that the statement also possessed “adequate indicia of reliability” demonstrated by “particularized guarantees of trustworthiness” so that its admission was authorized by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Taylor II, 63 S.W.3d at 166-67.

However, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court not only reaffirmed the plurality opinion in Lilly, id. at 55, 124 S.Ct. at 1367 (“[A]ccomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.”) (quoting Lilly, 527 U.S. at 134, 119 S.Ct. at 1899), this time in the context of a majority opinion, but also overruled Roberts, id. at 69, 124 S.Ct. at 1374, thus removing any remaining underpinning for the admission of such evidence in Taylor. The Court specifically identified Taylor II as an example of the type of error attributable to Roberts. Id. at 64, 124 S.Ct. at 1371.

In Craivford, the defendant’s wife had given the police a statement inculpating her husband but invoked the marital privilege to refuse to testify against him. Id. at 40, 124 S.Ct. at 1357. Compare KRE 504. The prosecution sought to introduce the wife’s statements as statements against her own penal interest under Washington Rule of Evidence (WRE) 804(b)(3), which is identical to KRE 804(b)(3). Crawford, supra, at 40, 124 S.Ct. at 1358. The Supreme Court held that her statements were inadmissible because they were testimonial in nature and had not been subjected to cross-examination.

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.”

Id. at 61, 124 S.Ct. at 1370. Although Nourse’s out-of-court statements inculpating Appellant were not testimonial in nature, the elimination of Rule 804(b)(3) and Ohio v. Roberts as vehicles for their admission renders them inadmissible. KRE 802; Bruton. The only remaining issue is whether the admonition given by the trial court cured the obvious prejudice caused by their admission.

It is presumed that the jury will follow a curative admonition. Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky.1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky.1997). This presumption is overcome only (1) when there is an overwhelming likelihood that the jury will be incapable of following the admonition and the impermissible testimony would be devastating to the appellant; or (2) when the question was asked without a factual basis and was inflammatory or highly prejudicial. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003) (internal citations and quotations omitted). We conclude, as did the United States Supreme Court in Bruton, that Bogle’s testimony that Nourse told her that Appellant killed Suggs was so devastating as to be incurable by a mere admonition to disregard it.

[A]s was recognized in Jackson v. Denno, supra [378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ], there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.... Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incrim-inations devastating to the defendant but their credibility is inevitably suspect. ... The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.

Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. The only distinction between Biuton and the case sub judice is that this was not a joint trial. However, Bruton ⅛ concern in that regard related primarily to the fact that the statement was admissible against the declarant codefendant but not against the other codefendant. The issue was whether the jury could properly consider it against the declarant but disregard it with respect to his codefendant. Here, there is no question that the statement was inadmissible against Appellant, who is in the same position in this case as was the declarant’s codefendant in Bruton; and there is no issue with respect to its admissibility against the declarant, ie., Nourse, because Nourse was not on trial. We perceive no significant distinction between the prejudice attending the use of a non-testifying codefendant’s hearsay statements to inculpate a codefendant in a joint trial, as in Bruton, or in a separate trial, as in Taylor. Thus, we must reverse this case for a new trial both because of the admission of the “Fourth of July” statement, admitted over Appellant’s objection, and because of the “Denarrius killed ‘Candy Mari ” statement, retroactively excluded pursuant to objection but too inflammatory to be cured by an admonition.

II. DENIAL OF IMPEACHMENT.

Prior to the testimony of KiKi Jackson, Appellant notified the trial judge of his desire to impeach the witness by showing that he had been previously convicted of a felony and that he had failed to appear for sentencing. The trial court ruled that only evidence of the conviction was admissible for impeachment purposes. KRE 609(a). At the time this case was tried, KRE 608 provided that the credibility of a witness could be attacked or supported only by evidence in the form of opinion or reputation in the community. Thus, specific instances of wrongful conduct could not be used for impeachment purposes. See also CR 43.07. As amended in 2003, KRE 608 does not permit proof of specific instances of conduct by extrinsic evidence, but they may, “in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness.... ” KRE 608(b) (as amended). Even if this version of the rule were available to Appellant, the fact of Jackson’s failure to appear at a sentencing hearing is not probative of his character for untruthfulness. Regardless, the pre-2003 version of the rule must be applied at retrial. KRE 107(b) refers to criminal actions “originally brought on for trial” prior to the effective date of the rules. Although KRE 107(b) deals only with the effective date of the adoption of the rules, i.e., July 1, 1992, the same principles apply to the adoption of amendments to the rules. Blair v. Commonwealth, 144 S.W.3d 801, 809 (Ky.2004). As pointed out in the Commentary to KRE 107(b), “cases tried ... under pre-existing evidence rules must be retried ... under the same rules if retrial ... becomes necessary.” KRE 107(b), Drafters’ Commentary (1989).

III. EXAMINATION OF WITNESS BY TRIAL JUDGE.

Appellant asserts that the trial judge assumed the role of prosecutor when he conducted his own interrogation of alleged eyewitness Calvin Merrell in the presence of the jury. Merrell is an uneducated man (“I never went to school”), and to say that he testified hesitantly on direct examination by the prosecutor would be an understatement. The prosecutor elicited from Merrell that Appellant shot Suggs' and stole Suggs’s money, but not much else. Merrell professed not even to recall “making a videotape” for Detective Edmonds. (The trial judge’s suggestion that the prosecutor ask Merrell if he had “given a statement” to Edmonds went unheeded.) Satisfied, defense counsel declined cross-examination. The trial judge then asked Merrell 103 questions, eliciting substantially more facts surrounding the events of December 24-25, 2001, some of which corroborated and others of which contradicted KiKi Jackson’s version of those events. Since we are reversing this case on other grounds, we need not address each area of inquiry made by the trial judge or decide whether he exceeded the boundaries of judicial interrogation. Nor do we intend by this opinion to inhibit trial judges from questioning a witness when warranted by the circumstances. KRE 614(b). However, since we have not previously construed KRE 614(b), we will do so now to provide guidance in the event the issue recurs upon retrial.

KRE 614(b) provides that “[t]he court may interrogate witnesses, whether called by itself or by a party.” The drafters’ Commentary points out that the rule merely “adopts well-established principles concerning judicial participation in the production of evidence,” noting that “[b]e-cause of the risk that judicial participation in the production of evidence might unduly influence the triers of fact, it is expected that courts will use this power sparingly and always with sensitivity to the potential for unfairness to the litigants.” KRE 614(b), Drafters’ Commentary (1989). From this, we conclude that the rule was intended to codify existing case law on the subject. Pre-rule cases emphasized that this is “not a practice to be encouraged for it is likely to lead the court into error, for it may indicate the views of the court upon the question of guilt or innocence of the defendant.” Fyffe v. Commonwealth, 256 Ky. 145, 75 S.W.2d 778, 780 (1934).

He may properly ask questions of a witness in order to expedite the orderly procedures of the trial.... But, in asking questions in the presence of the jury while the issues still hang in the balance, he should not allow his personal opinions to “leak into the crucible.” ... The trial judge’s observations and comments usually carry such weight with the jury that they must be subject to safeguards against abuse.

Davidson v. Commonwealth, 394 S.W.2d 911, 912 (Ky.1965) (internal citations omitted). Specifically, the trial judge cannot “by the form of his question or his manner indicate to the jury his opinion as to the credibility of the witness being interrogated or the guilt or innocence of the accused.” Caudill v. Commonwealth, 293 Ky. 674, 170 S.W.2d 9, 10 (1943). And a judge should not express his opinion about the veracity of a witness through the nature of his questioning, especially through leading questions. Collins v. Com., 297 S.W.2d 54, 56 (Ky.1957). Of course, a trial judge cannot ask questions that place him “in the role of a prosecutor rather than an arbiter.” LeGrande v. Commonwealth, 494 S.W.2d 726, 731 (Ky.1973).

A trial judge should never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the Government.... In our system of administering justice the functions of the trial judge and the prosecuting attorney are separate and distinct; they must not be confused. The trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution.

United States v. Sheldon, 544 F.2d 213, 218 (5th Cir.1976) (internal citations and quotations omitted). Federal courts have identified three factors that determine whether a trial judge has good reason to inject him/herself into the trial.

First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness’ testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed.

United States v. Slone, 833 F.2d 595, 597 (6th Cir.1987) (emphasis added) (citations omitted). We reaffirm these principles and direct the trial court to consider and apply them if this issue recurs upon retrial.

IY. MISDEMEANOR JUVENILE ADJUDICATIONS.

During the penalty phase of the -trial, the Commonwealth introduced evidence from Appellant’s juvenile records that he had been adjudicated guilty of the offenses of trafficking in a controlled substance in the first degree, carrying a concealed weapon, contempt of court, and terroristic threatening. Defense counsel objected and pointed out that only evidence of the trafficking offense was admissible because it was the only offense that would have been a felony if committed by an adult. KRS 532.055(2)(a)(6). Appellant requested a mistrial premised upon the prosecutor’s deliberate interjection of this inadmissible evidence. Instead, the trial court admonished the jury to disregard the evidence except for the trafficking offense.

Appellant’s claim of entitlement to a mistrial is largely mooted by the fact that we are reversing this case for a retrial on other grounds. However, Appellant also suggests that the Commonwealth’s “bad faith” precludes retrial on double jeopardy grounds. We addressed this subject at length in Commonwealth v. Deloney, 20 S.W.3d 471 (Ky.2000):

As a general rule, a mistrial granted on the defendant’s motion removes any double jeopardy bar to a retrial. Stamps v. Commonwealth, [648 S.W.2d 868 (Ky.1983) ]; Silverburg v. Commonwealth, [587 S.W.2d 241 (Ky.1979) ]. In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), a narrow exception to this rule was recognized “where ‘bad-faith conduct by judge or prosecutor,’ threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” Id. at 611, 96 S.Ct. 1075, 1081 (citations omitted). In Oregon v. Ken nedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Court clarified that “bad-faith conduct” means an “intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause,” and “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676, 102 S.Ct. 2083, 2089. Our case law is of similar import. Tinsley v. Jackson, [771 S.W.2d 331, 332 (Ky.1989)] (“party seeking to prevent his retrial upon double jeopardy grounds must show that the conduct giving rise to the order of mistrial was precipitated by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court”); Commonwealth v. Lewis, [548 S.W.2d 509, 510 (Ky.1977) ] (“if there is no bad faith and the choice has not been forced upon the defendant, he is not in a position to cry double jeopardy when the trial is relaunched”).

Id. at 474.

When Appellant objected to this improper testimony, the prosecutor posited that the misdemeanor adjudications were admissible because they were adjudicated in the same order as the felony adjudication. While the prosecutor was incorrect, we are unable to conclude that he acted in “bad faith.”

V. VICTIM IMPACT EVIDENCE.

Suggs’s widow, his adult daughter, and his sister were all present in the courtroom during the penalty phase of the trial. The widow chose not to testify. Over Appellant’s objection, the trial court permitted both the daughter and the sister to present emotionally-charged victim impact evidence.

KRS 532.055(2)(a)(7) identifies the type of victim impact evidence admissible at the sentencing phase of a felony trial, viz:

(a) Evidence may be offered by the Commonwealth relevant to sentencing including:
7. The impact of the crime upon the victim, as . defined in KRS 121.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim; ...

(Emphasis added.) The statute says “the victim,” not “the victims.” KRS 421.500(1) defines who is “the victim”:

(1) As used in KRS 421.500 to 421.575, “victim” means an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime classified as stalking, unlawful imprisonment, use of a minor in a sexual performance, unlawful transaction with a minor in the first degree, terroristic threatening, menacing, harassing communications, intimidating a witness, criminal homicide, robbery, rape, assault, sodomy, kidnapping, burglary in the first or second degree, sexual abuse, wanton endangerment, criminal abuse, or incest. If the victim is a minor or legally incapacitated, “victim” means a parent, guardian, custodian or court-appointed special advocate. If the victim is deceased and the relation is not the defendant, the following relations shall be designated as “victim” for the purpose of exercising those rights contained in KRS 421.500 to 421.575:
(a) The spouse;
-(b) An adult child if paragraph (a) of this subsection does not apply;
(c) A parent if paragraphs (a) and (b) of this subsection do not apply;
(d) A sibling if paragraphs (a) through (c) of this subsection do not apply; and
(e) A grandparent if paragraphs (a) through (d) of this subsection do not apply.

(Emphasis added.) For whatever reason, the General Assembly decided that only one “victim” should be permitted to give victim impact evidence at the sentencing phase of a felony trial — and, in the event the primary victim is deceased, designated who the secondary victim would be. Although this is clearly a matter of trial procedure, Ky. Const. § 116, we have previously declined to declare KRS 532.055 per se unconstitutional as a matter of comity, Commonwealth v. Reneer, 734 S.W.2d 794, 798 (Ky.1987), and the Commonwealth does not challenge the constitutionality of KRS 532.055(2)(a)(7) in this case. Compare Manns v. Commonwealth, 80 S.W.3d 439, 445-46 (Ky.2002) (declaring unconstitutional a portion of KRS 532.055(2)(a)(6) that authorized use of juvenile adjudications for impeachment purposes).

Appellant contends that since the secondary victim, the widow, was present and declined to testify, neither the daughter nor the sister should have been permitted to testify in her place. We disagree. Paragraph (l)(b) of the statute states, “if paragraph (a) of this subsection does not apply;” it does not state, “if there is no spouse.” When the widow declined to testify, paragraph (a) did not apply and the adult daughter became the secondary victim who was entitled to present victim impact evidence. If she had declined to testify, the sister would have become the secondary victim. However, it was error to permit both the daughter and the sister to testify. Since we are reversing the case on other grounds, we need not decide whether this error so prejudiced Appellant as to otherwise require a new penalty phase.

Accordingly, the judgments of conviction of the Logan Circuit Court and the sentences imposed therefor are reversed and this case is remanded for a new trial in accordance with the content of this opinion.

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

WINTERSHEIMER, J., dissents by separate opinion, with GRAVES, J., joining that dissenting opinion.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because there was no error or abuse of discretion in the admission of the “Fourth of July” statement or the “candyman” statement.

The admissibility of evidence is within the sound discretion of the trial judge. Gorman v. Hunt, 19 S.W.3d 662 (Ky.2000). A ruling regarding the admissibility of evidence should not be disturbed unless the trial judge abused his discretion. Gor-man, supra. Even if the trial judge admitted the statement for a wrong reason, there is no abuse of discretion here which justifies the appellate relief.

In large measure, this case turns on the doctrine of “present sense impression,” which is a well-recognized exception to the general rule regarding the inadmissibility of hearsay -within KRE 803(1). Time is an important element in the exception. Jarvis v. Commonwealth, 960 S.W.2d 466 (Ky.1998). A lapse of time is permissible. In this matter there was approximately a 15-minute lag between the alleged event and the statement. In my view, there is an uncertainty as to what the statement actually means. A plausible argument can be made that it is a reference to all the lights and commotion from the police and emergency vehicles at the scene. In any event, such uncertainty supports the proposition that the admission of the statement was harmless. RCr 9.24. The isolated reference to the statement did not affect the substantial rights of the defendant, and thus should not be the basis for reversal. There is no prejudicial error, if any, because three eyewitnesses testified that they saw Terry shoot the victim. Two eyewitnesses testified that he robbed the victim after shooting him. There is very strong direct evidence of guilt and, therefore, any error in the admission of evidence could be considered nonprejudicial.

The record here indicates that Nourse gave the murder weapon to Terry and then disposed of the shell casings. He also washed the blood off of the money. At the time of the trial of Terry, Nourse had several other charges pending against him, and he claimed his fifth amendment right not to testify at this trial. Under all the circumstances, his statement that Terry shot the victim could certainly be against his penal interest and thus covered by KRE 804.

In the final analysis, the trial judge ultimately sustained the objection to the statement and admonished the jury to disregard the testimony. Thus any defect in the testimony had been cured. See Alexander v. Commonwealth, 862 S.W.2d 856 (Ky.1993) overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997). The trial judge properly denied the motion for mistrial as unwarranted.

In this matter the defendant received a fundamentally fair trial and the judgment of conviction should be affirmed in all respects.

GRAVES, J., joins this dissenting opinion.

      . Compare Sherroan v. Commonwealth, 142 S.W.3d 7, 23-24 (Ky.2004) (KRS 421.520(3) requires the trial judge to consider the victim impact statement submitted by "the victim” designated in KRS 421.500(1), but does not preclude the judge from considering statements submitted by other persons claiming to have been impacted by the crime).


author: KELLER, Justice.

text:
    Rahim Adil Dante SHABAZZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0022-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Atty. Gen., Rickie L. Pearson, George G. Seelig, Asst. Attys. Gen., Criminal Appellate Division, Frankfort, Counsel for Appellee.
   KELLER, Justice.

I. INTRODUCTION

Appellant, Rahim Shabazz, was convicted in the McCracken Circuit Court of two felony drug offenses, was found to be a First-Degree Persistent Felony Offender (PFO), and was sentenced to twenty years. Appellant raises two issues on appeal: (1) whether the prosecutor’s questions to a witness on redirect, a prosecution witness’s answers during cross-examination, and the prosecutor’s statements during closing argument, all concerning whether Appellant requested that certain aspects of the case be investigated, prejudiced Appellant to such a degree as to require a mistrial; and (2) whether the prosecutor offered sufficient evidence for the trial court to deny Appellant’s motion for directed verdict on the PFO determination. We hold that a mistrial was unnecessary and that the evidence of Appellant’s PFO status was sufficient to sustain the verdict, thus we affirm the judgment of the McCracken Circuit Court.

II. BACKGROUND

In March 2001, the Paducah Police Department was in the process of conducting surveillance of Appellant’s residence, a trailer located in McCracken County, Kentucky, on the suspicion that he was involved in drug activity. On March 29, 2001, Detective Scott Aycock carried out a covert “trash pull” during which he collected three large trash bags from outside Appellant’s trailer. In one of the trash bags, Detective Aycock found a paper sack that contained what he believed to be marijuana seeds and buds; field tests confirmed that the items were, in fact, marijuana. Detective Aycock used this information to obtain a search warrant for Appellant’s trailer.

Early in the morning of March 30, 2001, Detective Aycock and two other officers, after a brief surveillance of the trailer, knocked on Appellant’s door. No one answered, although the officers heard someone running through the trailer. The officers contacted the landlord to open the front door, but the landlord’s key did not work. Detective Aycock turned off the water to the trailer to ensure that any drugs in the residence could not be disposed of by flushing them down the toilet. Approximately twenty to twenty-five minutes after the police first arrived, Appellant opened the door. After displaying the search warrant, the officers searched the residence and found a variety of items: several bags of marijuana; a .40 caliber pistol; a notebook containing addresses, phone numbers, and numerical computations; a digital scale; plastic “baggies”; and about $450.00 in cash. The officers arrested Appellant, advised of him of his Miranda rights, and took him to the Padu-cah Police Department where Sergeant Eric Jackson interviewed him. During this interview, Appellant admitted to selling marijuana and to possession of the pistol for personal protection.

Appellant was indicted on four counts: (1) Trafficking in Marijuana, Over Eight Ounces, Less than Five Pounds, First Offense, with a Firearm Enhancement; (2) Use/Possession of Drug Paraphernalia with a Firearm Enhancement; (3) Possession of a Firearm by a Convicted Felon; and (4) First-Degree Persistent Felony Offender (PFO). The trial court severed the third count, and the convictions that Appellant now appeals stem from the other three counts. Though it is not germane to the issues in this appeal, for the sake of completeness, we note that Appellant has been tried on these three counts two times. After the first trial, the trial court granted Appellant a new trial because some inadmissible evidence came in through a prosecution witness. This appeal arises from Appellant’s second trial on these counts, and references to Appellant’s trial hereinafter are to this second trial.

During cross-examination at trial, Appellant’s lawyer highlighted issues that the Commonwealth had failed to investigate. For example, during cross-examination of Detective Aycock, Appellant’s lawyer asked him a series of questions regarding whether the notebook found in Appellant’s trailer actually contained evidence of drug activity. Detective Aycock revealed that the notebook contained several names and phone numbers, including a number for someone named “Shareeta” and some calculations of monetary amounts varying from $300 to $2000. The cross-examination also included the following exchange:

Q: Did you call the phone number to find out if Shereeta [Shareeta] knew anything?
A: No, sir.
Q: So we don’t know whether Shar-eeta might have been someone he was interested in dating or whether she was somebody that might have been involved in drug trafficking? You don’t know that.
A: You’ll have to ask your client, sir. I don’t know.
Q: But your investigation did not include calling that number?
A: No, sir.

Appellant’s lawyer also asked Detective Aycock whether he had had the gun that was found in the ductwork of Appellant’s trailer processed for fingerprints and whether any fingerprint evidence linking Appellant to the gun would be introduced. Detective Aycock responded in the negative to both questions.

The prosecutor addressed this line of questioning on re-direct by asking, “Did the defendant ask you, ‘Hey, you didn’t call Shareeta, she sells me widgets’?” Appellant objected and the trial court sustained the objection, stating that the matter was not relevant because the detective had already confirmed that he had not called anyone and telling the prosecutor to “move on.” The prosecutor also asked, “Now Mr. Preston [defense counsel] didn’t call you and ask you to have the gun checked for fingerprints, did he?” ' Detective Aycock responded in the negative and Appellant objected to the question, stating that Appellant was under no obligation to do so. The prosecutor withdrew the question.

During Appellant’s cross-examination of Sergeant Jackson, in response to a query regarding whether Jackson had sent the gun for fingerprint analysis, Jackson responded:

No sir. And I’m glad he didn’t do it. I’d have probably been upset since he confessed to it. I’d [have] just clogged up the lab more. We have, you know, we have that call. If he confesses to the gun, which he did, there’s no need to fingerprint it. However, you have that right, you could’ve asked that it be fingerprinted. But after he confessed to it, then there was no need to.

Appellant’s attorney objected and asked that the last part of Sergeant Jackson’s answer, namely the “you have that right, you could’ve asked that it be fingerprinted” portion, be stricken from the record, but the trial court overruled the objection.

Just before instructions were read to the jury, Appellant’s lawyer moved for a mistrial on the basis of the frequency of references by the prosecution’s witnesses to what Appellant “could have done.” The trial court refused to grant a mistrial but hinted at the possibility of an admonition to the jury. After some discussion, Appellant’s attorney requested an admonition, but the trial court refused to grant one because it would simply have drawn more attention to the issue.

During his closing argument, Appellant’s lawyer attempted to demonstrate that the scales found in Appellant’s residence could be used to measure or weigh something other than drugs. He stated, “What [other units of measurement] are you going to have on the set of scales other than grams and ounces.. .that’s what you measure cheese, that’s what you measure food, anything that you measure comes in grams and ounces, because that’s what you measure weight in.” The prosecutor followed up on this issue during his closing argument by asking: “Did you hear any testimony about cheese being there?” He also addressed issues that Appellant’s attorney-had raised during cross-examination, set forth above, stating:

Mr. Preston [Appellant’s lawyer], he’s tried, I guess he’s tried, to parlay this back on me, is what he’s tried to do. Now, I don’t want you to take this in any way, shape, form, or fashion that I’m saying that he has to prove anything. I’m not. He [Appellant] enjoys the constitutional right, and you should respect that to the fullest extent that it exists, that he doesn’t have to prove anything, and I’m not saying he does. But you know what, if he tries to take that constitutional protection and turn it on me and use it on me as a sword, and say, “Well, you didn’t do this, and you didn’t do that,” it is absolutely valid for you to question, ‘Well, Mr. Preston, if you thought that was important and you had the right to ask for it, why wouldn’t you ask for it? If you thought it was going to exonerate your client, why wouldn’t you ask for it?” It was absolutely valid for you to ask that question. I’m not saying it’s his job, but what I’m saying is if he’s going to try to turn it around and say, “Boy, you really should have done this,” then if he thought it was so important, he would have done it himself.

Appellant’s lawyer then objected, stating that the prosecutor’s argument had gone “over the line,” and the trial court overruled the objection.

The jury found Appellant guilty of the trafficking and paraphernalia charges. During the penalty phase of the trial, the prosecutor introduced evidence of Appellant’s three earlier felony convictions, in the form of certified copies of the indictments and judgments in those cases, and a chart explaining parole eligibility. The prosecutor also called Detective Aycock who testified as to Appellant’s birthday and his age at the time of the prior convictions. Detective Aycock also testified that each of Appellant’s convictions resulted in a sentence of three years or more and that his 1996 cocaine possession conviction was within five years of the charges in this case. Appellant’s lawyer moved for a directed verdict on the PFO status, but the trial court overruled the motion. The jury found that Appellant was a First-Degree PFO and recommended a sentence of ten years on the trafficking count and five years on the drug paraphernalia count, both counts PFO enhanced to a total of twenty years. The trial court sentenced Appellant to twenty years. Appellant now appeals to this court as a matter of right.

III. ANALYSIS

A. Motion for a Mistrial

Appellant claims that the trial court erred in failing to grant a mistrial. He argues that a mistrial was warranted because some of the re-direct questions to Detective Aycock, the testimony from Sergeant Jackson, and the prosecutor’s comments during his closing argument prejudiced the jury against him and denied him his right to a fair trial. Appellant claims that these statements amounted to an attempt to shift the burden of investigation as well as the burden of proof from the Commonwealth and that the trial court abused its discretion in failing to grant a mistrial.

When a party moves for a mistrial, the trial court must determine whether there is a “manifest necessity” for a new trial. The purpose of this standard is to reserve the extraordinary relief of declaring a mistrial for situations in which an eiTor has been committed that is of such magnitude that the litigant would be denied a fair and impartial jury absent a new trial. “It is universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice.” In accordance with this standard, appellate courts review a trial court’s refusal to grant a mistrial for an abuse of discretion.

Appellant argues that the prosecution’s questions posed to Detective Aycock and the cross-examination answers from Sergeant Jackson “reveal[ ] a concerted effort by the prosecution and its agents (the police witnesses), which borders on outright misconduct, to improperly shift the burden of proof to Appellant during the trial.” But Appellant’s hyperbole is unpersuasive. First of all, Appellant’s lawyer opened the door to the prosecutor’s line of questioning of Detective Aycock. So long as the prosecution does not claim that a defendant has a duty to investigate the case, e.g., by checking evidence for fingerprints or by asking the police to call phone numbers found in evidence, such questions are fair comment in light of the nature of the cross-examination by the defendant’s lawyer. More importantly, the trial court alleviated any problem created by the first question by sustaining the objection, and the prosecutor alleviated any concern over the second question by withdrawing it. Appellant’s lawyer preserved no further error because he did not ask for an admonition to be given to the jury to disregard the prosecutor’s questions.

Sergeant Jackson’s allegedly objectionable response was to a question posed by Appellant’s lawyer. Rather than being an attempt to shift the burden of proof to Appellant, Sergeant Jackson’s response was merely part of his explanation of why he did not request fingerprint testing. His answer contained no implication that Appellant bore the burden of having the gun tested. As such it was not improper.

If there was any error in the questions asked of Detective Aycock by the Commonwealth and the answers given by Sergeant Jackson, it was minor and did not create a “manifest necessity” for a mistrial. The trial court did not abuse its discretion in refusing to grant a mistrial on these grounds.

Appellant also complains that the prosecutor’s commentary during his closing argument was further evidence of an attempt to shift the burden of proof by implying that Appellant could have taken certain steps to prove his innocence and, because he did not take those steps, he was guilty, thus absolving the Commonwealth of the requirement to prove guilt beyond a reasonable doubt. Appellant states that because he was under no duty to take any action, the Commonwealth’s attempt to persuade the jury otherwise warrants reversal. Further, Appellant claims that the Commonwealth attempted to insulate the improper comments made in closing argument by insisting that Appellant was not required to prove anything and that he was entitled to his constitutional rights. Appellant maintains that the prosecutor was “speaking out of both sides of his mouth,” on the one hand stating that Appellant was entitled to certain constitutional considerations, and on the other hand questioning Appellant’s failure to prove his innocence. Appellant claims that this behavior was misleading and confusing to the jury and therefore improper. He maintains that the prosecutor’s continued focus on this topic suggested that Appellant had an obligation to testify and prove his innocence. Appellant contends that the overall effect of these statements diminished the fairness of his trial and prejudiced the jury against him.

We find that the comments at issue did not constitute a fundamental defect in the proceedings such that the entire trial was tainted as a result of these statements. In Beam v. Foltz, the defendant’s strategy at trial was to argue that the prosecution should have performed more tests on some of the evidence. In response, the prosecutor argued that he bore no duty to perform further tests or to try to prove the defendant innocent. As to this the Sixth Circuit Court of Appeals held the following:

We agree with the petitioner that the prosecutor’s argument did have some tendency to mislead insofar as it suggested that “at least to some extent that duty and that job [of trying to prove ... the Defendant is innocent] is left to the defense.” “ ‘[1⅛ the heat of argument, counsel do occasionally make remarks that are not justified,’ ” but in the context of Mr. Beam’s trial as a whole, we do not believe either that the jury could have been under any misapprehension as to what the law actually requires or that the prosecutor’s statement was so egregious as to render the trial fundamentally unfair.

We agree with the Sixth Circuit’s analysis and find it applicable to this case. Because there was a great deal of uncontro-verted evidence linking defendant to the charged crimes, e.g., his confession where he admitted to owning the gun in question, and the jury was instructed that the Commonwealth had the burden of proving each element of every charge, the trial court did not abuse its discretion in refusing to grant a mistrial.

B. Motion for a Directed Verdict

Appellant next claims that the trial judge committed reversible error in denying his motion for a directed verdict on the PFO determination. Appellant argues that the Commonwealth presented insufficient evidence to prove that Appellant was on probation, parole, conditional discharge, et cetera at the time he committed the offense, thus the PFO status was conferred based on insufficient evidence and warrants reversal.

The instructions in this phase of the trial were as follows:

Instruction No. 6
(First Degree Persistent Felony Offender)
You will find the defendant, Rahim Sha-bazz, guilty of being a First-Degree Persistent Felony Offender under this Instruction if and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That prior to March 30, 2001, the Defendant was convicted of First-Degree Possession of a Controlled Substance by final judgment of the Graves Circuit Court, Graves County, Kentucky on October 20, 1997, AND that prior to committing the offense for which he was convicted on October 20, 1997, he was convicted of First-Degree Possession of a Controlled Substance by final Judgment of the McCracken Circuit Court, McCracken County, Kentucky on June 24,1993;
B. That he was eighteen years of age or older when he committed both of the offenses of which you believe he was convicted;
C. That pursuant to those two convictions, he was sentenced to a term of imprisonment of one (1) year or more;
D. That he was on probation, parole, conditional discharge, conditional release, or furlough or appeal bond, from at least one such prior conviction at the time he committed the offense of which you have found him guilty in this case; AND
E. That he is now twenty-one years of age or older.

Appellant contends that the Commonwealth did not present direct evidence to demonstrate that Appellant satisfied the requirements of subsection D of Instruction No. 6. Appellant argues that there was no testimony or evidence that Appellant actually served any of the sentences or, more importantly, that he was on probation, parole, conditional discharge, conditional release, or any other form of legal release prior to the date of the commission of the crimes involved in this case.

As the Commonwealth points out, however, evidence of Appellant’s probation status was presented to the jury. Appellant was convicted in Graves Circuit Court in 1997 of cocaine possession, but his sentence was probated for five years. Evidence of this was presented to the jury in the form of an Order of Probation/Conditional Discharge that was entered on October 20, 1997 and was part of the certified copy of the indictment and judgment from Graves Circuit Court (96-CR-0019). The crimes in this case were alleged to have occurred on or about March 30, 2001, thus they fall within the probation period listed in the Order. As such, there was evidence presented to the jury that Appellant was on probation when he committed the crimes in this case. The question, then, becomes whether such evidence is sufficient to avoid a directed verdict on the PFO charge. We hold that it is.

Appellant cites to Davis v. Commonwealth where we “reiterate[d the] conclusion” that the Commonwealth “cannot, by inference or guesswork, confer PFO status on anyone.” This reiterated conclusion stemmed from Hon v. Commonwealth, where we held that “it is improper for proof of an inferential nature to be used to obtain and sentence a conviction under [the PFO statute].” But our law on the sufficiency of the evidence required to support a PFO charge has been in flux recently, and our latest pronouncement established that “[a] reasonable inference is sufficient to meet the requirements of the PFO statute.” In doing so, we expressly “overruled [Hon ] to the extent that it degrade[d] the standard of a reasonable inference to that of guesswork.”

Though we did not expressly mention Davis in Martin, it too was overruled to the extent that it degraded the standard of a reasonable inference. This makes sense in light of the facts presented by Davis as opposed to those presented in Martin and this case. In Davis, the only evidence to. support the defendant’s PFO finding was testimony from a detective for the Commonwealth’s Attorney’s office who testified as to the defendant’s probationary status but who also “admitted that he had no knowledge of such status.” Instead, the detective had “us[ed] simple subtraction” to arrive at the opinion that the defendant was on probation when he committed the crime in question. In Martin, the Commonwealth presented direct evidence that defendant had been previously convicted within five years of committing the crimes by having the Barren Circuit Court Clerk testify. The Clerk admitted that she “just ha[d] the indictment and ... the judgment” and testified as to those dates.

Though the Commonwealth was proceeding under KRS 532.080(3)(c)(1) in Martin, as opposed to KRS 532.080(3)(c)(2), as was the case in Davis and in this case, the reasoning in Martin applies in this case. We distinguished the facts in Martin from those in Davis by noting that “the record ... is not entirely silent as it was in Davis as to the probationary status of [the defendant].” Technically speaking, however, the record was not entirely silent in Davis; but the evidence presented was problematic in that the record contained no competent evidence as to the defendant’s probationary status because the testimony on that point was from a witness who admitted to having no knowledge of the matter. In that sense, the record was silent as to the defendant’s probationary status. In Martin, competent evidence, in the form of the testimony of the Circuit Clerk, who was reading from the indictment and judgment of conviction, was introduced.

In this case, rather than having the Clerk read from the indictment and judgment, the Commonwealth simply introduced certified copies of Appellant’s indictments and judgments, including the Order of Probation. As such, the Commonwealth presented evidence analogous to that in Martin that Appellant’s prior conviction for possession of cocaine, which resulted in a five-year probated sentence, was entered within five years of the current offense. This, in turn, allows for the reasonable inference that Appellant was still on probation when he committed the offenses in question in this case. Admittedly, the Commonwealth did not present any evidence as to whether Appellant had been released from probation “by virtue of executive clemency, reversal on appeal, release by way of habeas corpus, or by other means whereby persons serving felony sentences may gain relief,” but requiring such a showing, i.e., the almost impossible task of proving a negative, is exactly the sort of reduction of the status of a reasonable inference to the level of guesswork that Martin expressly overruled. We have also previously held that the burden of proving such negatives is on the defendant:

It is a general rule running through the law of evidence that where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the defendant, the burden of proving that such averment is not true rests upon him.

The evidence in this case established that Appellant had been placed on probation in 1997 and that he had committed the crimes in this case in 2001. This created a reasonable inference that Appellant was on probation when he committed the crimes in this case. And even though this reasonable inference is one likely to be arrived at through the sort of “simple subtraction” that was frowned upon in Davis, we note that such subtraction, when combined with competent evidence, is sufficient to create a reasonable inference in this case.

“On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Under this standard, we find that the trial court did not err in refusing to grant a directed verdict.

IV. CONCLUSION

For the foregoing reasons, the judgment of the McCracken Circuit Court is affirmed.

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

      . KY. CONST. § 110(2)(b).

      . Gould, v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky.1996).

      . Id. at 737-38.

      . Id. at 738.

      . 832 F.2d 1401 (6th Cir.1987).

      . Id. at 1407-08 (citation omitted, alterations in original).

      . See KRS 532.080(2)(c)(2) ("A persistent felony offender in the second degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of one (1) previous felony. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided: ■... (c) That the offender ... 2. Was on probation, parole, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted-”)■

      . 899 S.W.2d 487 (Ky.1995).

      . Id. at 490.

      . Id.

      . 670 S.W.2d 851 (Ky.1984).

      . Id. at 853.

      . Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.2000).

      . Id.

      . Davis, 899 S.W.2d at 490.

      . Id. at 489.

      . Martin, 13 S.W.3d at 233.

      . Davis, 899 S.W.2d at 490.

      . Eary v. Commonwealth, 659 S.W.2d 198, 200 (Ky.1983) (quoting Duvall v. Commonwealth, 593 S.W.2d 884, 886 (Ky.App.1979)).

      . Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991) (citations omitted).


author: Justice KELLER. Chief Justice LAMBERT.

text:
    REVENUE CABINET, Commonwealth of Kentucky, Appellant, v. H.E. O’DANIEL, Sr.; and Lucy M. O’Daniel, Appellees. and Billy Curtsinger; Freda Curtsinger; Charles M. Polin; and Travis Bush, Appellants, v. Revenue Cabinet, Commonwealth of Kentucky; and Dana Bynum Mayton, Appellees.
    No. 2001-SC-1032-DG, 2002-SC-0204-TG.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Michael D. Kalinyak, Kentucky Revenue Cabinet, Division of Legal Services, Frankfort, Counsel for Revenue Cabinet, Commonwealth of Kentucky and Dana By-num Mayton.
    H. Edward O’Daniel, Springfield, Phillip J. Shepherd, Frankfort, Counsel for H.E. O’Daniel, Sr.; Lucy M. O’Daniel; Billy Curtsinger; Freda Curtsinger; Charles M. Polin; and Travis Bush.
   Opinion of the Court by

Justice KELLER.

I. INTRODUCTION

In both of these appeals, motor vehicle owners challenge the Revenue Cabinet’s 1995 ad valorem tax assessments for their vehicles. Because the subject vehicles, although purchased in late December 1994, were not registered in their owners’ names until after January 1, 1995, the vehicle owners contend that they are not liable for the 1995 .taxes. Conversely, the Revenue Cabinet claims that because the vehicle owners were the undisputed owners on January 1, they are liable for the taxes. Are the vehicle owners liable for the 1995 ad valorem taxes? Because the owners were allowed by statute a fifteen-day grace period from the purchase date to register the vehicles, and because, statutorily, only the owner of record on January 1, 1995 was liable for the taxes, we hold that the vehicle owners are not liable for the 1995 ad valorem taxes.

II. BACKGROUND

A. Revenue Cabinet v. O’Daniel, 2001-SC-1032-DG

On December 26, 1994, H.E. O’Daniel, Sr. and Lucy M. O’Daniel (“the O’Daniels”) purchased a 1994 Lincoln Town Car from Crossroads Ford in Frankfort. On that date, the dealer gave the O’Daniels the keys and a properly executed Application for Title/Registration (“VTR”). The O’Daniels took possession and began operating the vehicle on the Commonwealth’s highways that day. Since Kentucky allows an owner a grace period for registering a purchased vehicle, they did not register it with the county clerk’s office until January 19, 1995, on which date the county clerk duly entered the O’Daniels’ vehicle into Kentucky’s Automated Motor Vehicle Registration System (“AVIS”)

For the 1995 tax year, like prior years, the Revenue Cabinet initially assessed motor vehicles registered in AVIS as of January 1, 1995 for ad valorem tax purposes. But, since the O’Daniels had not yet registered their 1994 Lincoln Town Car, it was not at first assessed for 1995 ad valorem taxes. In June of 1995, however, the Revenue Cabinet, operating under a new policy that ownership, and thus tax liability, attaches at the point of sale, decided to implement a compliance program to identify and make assessments for ad valorem tax purposes on vehicles that were purchased in late 1994, but not registered by January 1, 1995 by virtue of the statutory grace period for registering vehicles. The Revenue Cabinet began the program with the 1995 tax year and identified approximately 6,000 to 8,000 such vehicles — one of which was the O’Daniels’ 1994 Lincoln Town Car. Prior to this time, the Revenue Cabinet’s policy was to assess taxes on the basis that liability attached at the time of registration. In accordance with its compliance program, the Revenue Cabinet sent the O’Daniels a bill for the 1995 taxes in October of 1996.

The O’Daniels unsuccessfully appealed the Revenue Cabinet’s assessment to the Kentucky Board of Tax Appeals. They then appealed the Tax Board’s decision to the Marion Circuit Court, where the trial court, recognizing that the Legislature had created a tax loophole as a result of the grace period, reversed the tax assessment. The Revenue Cabinet appealed the trial court’s decision, contending that ownership for tax purposes occurs at the point of sale rather than at the point of registration. The Court of Appeals disagreed and affirmed the trial court, holding that the Revenue Cabinet only had authority to assess ad valorem taxes against the January 1 “owner of record” and that since the O’Daniels’ vehicle was not registered in their names on January 1, 1995, they were not the “owners of record” on the day taxes were assessed. The Court of Appeals, therefore, held that the O’Daniels were not responsible for the 1995 taxes. We granted the Revenue Cabinet’s motion for discretionary review.

B. Curtsinger v. Revenue Cabinet, 2002-SC-0204-TG

Under circumstances similar to those described above in the Revenue Cabinet v. O’Daniel appeal (“the O’Daniel appeal”), the Revenue Cabinet assessed 1995 ad va-lorem taxes on vehicles owned by Billy and Freda Curtsinger, Charles M. Polin, and Travis Bush (“the Curtsinger Appellants”), the Appellants in this appeal (“the Curt-singer appeal”). The Curtsinger Appellants filed a class action lawsuit in the Franklin Circuit Court challenging the assessments that they received pursuant to the Revenue Cabinet’s compliance program. The Franklin Circuit Court granted the Revenue Cabinet a summary judgment, which the vehicle owners appealed. At the Revenue Cabinet’s request, we accepted transfer of this appeal so that it could be consolidated and heard with the O’Daniel appeal.

Given that the O’Daniel appeal involves similar factual circumstances and the same dispositive legal issue as the Curtsinger appeal, we will focus primarily on the O’Daniel appeal — the first appeal docketed in this Court — to avoid unnecessary repetition in this opinion.

III. ANALYSIS

The resolution of these appeals depends upon the interpretation of several statutes. In 1995, KRS 134.810(4) and KRS 186.021(2) stated that the “owner of record on January 1 of any year shall be liable for taxes” on a motor vehicle:

KRS 134.810(4)
When a motor vehicle has been transferred before registration renewal or before taxes due have been paid, the owner of record on January 1 of any year shall be liable for the taxes on the motor vehicle, except as hereinafter provided.
KRS 186.021(2)
Pursuant to KRS 134.810(4), the owner of record on January 1 of any year shall be liable for taxes due on a motor vehicle.

And KRS 186A.095 allowed a vehicle owner “a fifteen (15) day grace period from the date on which he purchased a vehicle” to obtain “a certificate of registration or title ... in his name.”

It is this Court’s duty when interpreting statutes to give effect to the General Assembly’s intent, but “no rule of interpretation ... require[s] us to utterly ignore the plain ... meaning of words in a statute.” In fact, “[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.” We “ascertain the intention of the legislature from words used in enacting statutes rather than surmising what may have been intended but was not expressed.” In other words, we assume that the “[Legislature] meant exactly what it said, and said exactly what it meant.” Only “when [it] would produce an injustice or ridiculous result” should we ignore the plain meaning of a statute.

KRS 134.810(4) and KRS 186.021(2) are clear: the owner of record on January 1 is hable for the ad valorem taxes due on a vehicle. And KRS 186A.095 is equally as clear; a vehicle owner is allowed a fifteen (15) day grace period from the date of purchase to register it in his or her name. The O’Daniels purchased their vehicle on December 26, 1994. They took advantage of KRS 186A.095’s grace period and registered the vehicle well after January 1, 1995. As a result, the O’Daniels were not the “owners of record” of the vehicle on January 1, 1995, and therefore, they are not hable -for the ad valorem taxes for that year. The same holds true for the Curtsinger Appellants.

KRS 186.010(7)(a) defines a vehicle “owner” as (1) “a person who holds the legal title of a vehicle or [ (2) ] a person who pursuant to a bona fide sale has received physical possession of the vehicle ....” A person holds the “legal title” to a vehicle if it is registered in his or her name. Here, the vehicle was not yet registered in the O’Daniels’ names on tax assessment day, i.e., January 1, and accordingly they did not hold the legal title to the vehicle on that date. In other words, they were not the owners of record on January 1, 1995. But, based on the second part of this definition, the Revenue Cabinet contends that the O’Daniels owned the vehicle on January 1, 1995 and for that reason they are liable for the taxes. We agree that the O’Daniels owned the vehicle on January 1, 1995, but we disagree with the Revenue Cabinet’s conclusion that ownership alone is sufficient to subject the O’Daniels to tax liability for the vehicle. Although under the second part of KRS 186.010(7)(a)’s definition the O’Daniels undisputedly owned the vehicle on January 1, it is equally undisputed that they were not the owners of record, on that date, and under KRS 134.810(4) and KRS 186.021(2), it is “the owner of record on January 1” who is hable for the taxes on the vehicle. The Legislature could have simply provided in KRS 134.810(4) and KRS 186.021(2) that the “owner on January 1” shall be liable for the ad valorem taxes on motor vehicles; instead, it restricted “owner” with the prepositional phrase “of record.” By so doing, the Legislature demonstrated its intent to limit the meaning of “owner” for the purpose of tax liability only to the owner of record on January 1. The O’Daniels were not the owners of record on January 1; they did not hold legal title to the vehicle on that date. Thus they are not liable for the taxes.

The Revenue Cabinet cites Nantz v. Lexington Lincoln Mercury Subaru in support of its position. Its reliance is misplaced. In Nantz, the issue was “when [does] title to a motor vehicle pass[ ] from a commercial car dealer to a buyer under Kentucky’s titling and registration statutes ... for the purpose of determining liability insurance coverage.” The Court held that “when the proper legal documents are transferred from the dealer to the buyer, the responsibility for insurance coverage on the part of the dealer ceases.” Thus Nantz is authority on ownership for purposes of insurance coverage, not for tax liability, which is the issue in the present appeals.

The Revenue Cabinet contends that its compliance program merely identifies vehicles that were mistakenly omitted from the tax rolls and requires the owners of the vehicles to pay the taxes. We disagree for two reasons. First, we would note that the vehicles in these appeals are not omitted property. In 1995, “omitted property” was defined as “[a]ny personal property which has not been listed for taxation, for any year in which it is taxable, by April 15 of that year ....” The O’Daniels’ vehicle was “listed for taxation” on January 19, 1995; thus it was not omitted property. Second, the Revenue Cabinet “cannot by its own rules and regulations, amend, alter, enlarge or limit the terms of legislative enactment[s].” The Legislature enacted statutes that imposed tax liability on vehicle owners of record on January 1. The Revenue Cabinet cannot adopt a program — contrary to the statutes — that creates tax Lability for owners who lawfully register their vehicles after that date.

Except for constitutional restrictions, the assessment of ad valorem taxes on motor vehicles is a matter of statutory law. Vehicles are assessed on January 1 of the tax year by using information the county clerks have entered into the AVIS system. Vehicles that are registered after January 1 do not appear in the AVIS system at the time the assessment is made for the current year. Because the Legislature allows buyers a fifteen-day grace period from the time of purchase to register their vehicles with the appropriate county clerk, vehicles that were purchased in late December 1994 might not have been entered into the AVIS system by January 1, 1995 and thus would have “escaped” the tax for 1995. The applicable tax statutes specifically provided that the “owner of record” on January 1 is responsible for the tax. Although the Legislature amended the statutes in 2002 to comport with the Revenue Cabinet’s view that ownership for tax purposes occurs at the time of sale rather than at the time of registration, the amendment cannot be applied retroactively.

To summarize, the language of KRS 134.810(4) and KRS 186.021(2) was quite clear: the owner of record on January 1, 1995 was hable for the ad valorem taxes due on a vehicle. The Legislature said it not once, but twice. The O’Daniels were not the owners of record of the Lincoln Town Car on that date since they had taken advantage of KRS 186A.095’s grace period and registered it in their names on January 19, 1995. Accordingly, neither the O’Daniels nor the Curtsinger Appellants are hable for the 1995 ad valorem taxes on their vehicles.

IV. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals in the O’Daniel appeal (2001-SC-1082-DG), and we reverse the circuit court’s summary judgment in the Cmtsinger appeal (2002-SC-0204-TG) and remand it for further proceedings in accordance with this Opinion.

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

LAMBERT, C.J., dissents by separate opinion.

Dissenting opinion by

Chief Justice LAMBERT.

Respectfully, I dissent.

A cardinal principle of statutory construction is that courts refrain from a construction that would produce a ridiculous or absurd result. In my view, the majority opinion violates this principle.

Throughout, the majority opinion repeats the “owner of record” language in the statutes, but nowhere is there any explanation as to why the Legislature would have created a gaping hole in this ad valorem tax statute for the benefit of a handful of taxpayers and to the detriment of all other taxpayers. I suggest that the “owner of record” language is nothing more than boilerplate to describe “owner;” that “of record” is utterly meaningless and was placed in the statute by sheer inadvertence.

As noted in the majority opinion, KRS 186.010(7)(a) defines “owner” as one who holds.legal title or one who has received physical possession pursuant to a bona fide sale. Under either of these definitions, the O’Daniels were owners. The majority acknowledges as much, but reaches the mysterious conclusion that “We agree that the O’Daniels owned the vehicle on January 1, 1995, but we disagree with the Revenue Cabinet’s conclusion that ownership alone is sufficient to subject the O’Daniels to tax liability for the vehicle.” One must ask what possible reason the Legislature could have had for creating such a bizarre result, ie., exemption of an owner from an ad valorem tax which is a tax on the value of owned property.

In Nantz v. Lexington Lincoln Mercury Subaru, we held that for purposes of determining liability insurance coverage, “when the proper legal documents are transferred, from the dealer to the buyer, the responsibility for insurance coverage on the part of the dealer ceases.” This is a practical conclusion based on the principle that responsibility for compliance with the law rests upon the actual owner of the property. Instead of applying this sound principle to the ad valorem tax at. issue here, the majority has effectively placed responsibility on the prior owner, the automobile dealer who sold the vehicle, and required that dealer to pay ad valorem taxes on property which had been sold to another.

      . “The term 'ad valorem’ literally means 'according to the worth,' and is Used in taxation to designate an assessment of taxes against property at a certain rate upon its value.” Revenue Cabinet v. Estate of Field, 864 S.W.2d 930, 932 (Ky.App.1993) (citing Thomas v. City of Elizabethtown, 403 S.W.2d 269, 272 (Ky.1965)); accord BLACK’S LAW DICTIONARY 1469 (Bryan A. Garner ed., 7th ed., West 1999) (“[A]d valorem tax” is "[a] tax imposed proportionally on the value of something (esp. real property), rather than on its quantity or some other measure.”).

      . "Tax assessment” is "[o]fficial valuation of property for purposes of taxation.” BLACK'S LAW DICTIONARY Assessment (3) 112 (Bryan A. Garner ed., 7th ed., West 1999).

      .The form is entitled "Vehicle Transaction Record, Application for Title/Registration” and the parties use the abbreviation "VTR.”

      . KRS 186A.095 (amended 1996) ("An owner of a vehicle for which a certificate of registration or title, and license plate must be obtained shall be allowed a fifteen (15) day grace period from the date on which he purchased a vehicle or brings a vehicle into the Commonwealth from another state, during which time the owner shall apply for and obtain a certificate of registration or title, and a license plate in his name.”).

      . Although this date was several days after expiration of the fifteen-day grace period, it is without significance because the grace period extended well past January 1, 1995.

      . KRS Chapter 186A.

      . Because the Franklin Circuit Court summarily ruled against the individual Appellants, it did not determine whether a class action may be maintained by them.

      . KRS 134.810(4) (amended 2002) (emphasis added).

      . KRS 186.021(2) (amended 2002) (emphasis added).

      . KRS 186A.095 (amended 1996).

      . Gold Trading Stamp Co. v. Commonwealth, 224 Ky. 136, 5 S.W.2d 910, 911 (1928); cf. Powers v. Brewer, 238 Ky. 579, 38 S.W.2d 466, 469 (1931) ("[T]he principle that the statute is to be liberally construed does not mean that its provision can be entirely ignored.”).

      . RONALD BENTON BROWN & SHARON JACOBS BROWN, STATUTORY INTERPRETATION: THE SEARCH FOR LEGISLATIVE INTENT § 4.2, at 38 (NITA, 2002) [hereinafter "STATUTORY INTERPRETATION”].

      . Flying J Travel Plaza v. Commonwealth of Ky., Transp. Cabinet, Dep’t of Highways, 928 S.W.2d 344, 347 (Ky.1996) (citing Ky. Ass’n of Chiropractors, Inc. v. Jefferson Co. Med. Soc’y, 549 S.W.2d 817 (Ky.1977)).

      . Stone v. Pryor, 103 Ky. 645, 45 S.W. 1136, 1142 (1898) (Waddle, S. J., dissenting).

      . STATUTORY INTERPRETATION, supra note 12, § 4.3, at 40; see Johnson v. Frankfort & C.R. R., 303 Ky. 256, 197 S.W.2d 432, 434 (1946).

      . KRS 186.010(7)(a).

      . State Auto. Ins. Co. v. Reynolds, 32 S.W.3d 508, 510 (Ky.App.2000) ("KRS 186.010(7)(a) defines 'owner' ... as ‘a person who holds the legal title of a vehicle .... ’ It is undisputed in the record that the 1989 Nissan Pulsar was registered under James’s name and that he held legal title to the car.”); Nantz v. Lexington Lincoln Mercury Subaru, 947 S.W.2d 36, 41 (Ky.1997) (“Simpson, who had only possession of the automobile, was not the owner of the vehicle because legal title had not been properly transferred to him.”); Tharp v. Security Ins. Co. of New Haven, Conn., 405 S.W.2d 760, 766 (Ky.1966) ("For the purposes of the Kentucky Financial Responsibility Law the owner of a motor vehicle, having legal title to it, is the person in whose name the vehicle is registered.”).

        .See BLACK'S LAW DICTIONARY (8th ed.2004) (defining "record owner” as "a property owner in whose name the title appears in the public records”).

      . 947 S.W.2d 36 (Ky.1997).

      . Id. at 37 (emphasis added).

      . Id. at 38-39 (emphasis added) (citing Potts v. Draper, 864 S.W.2d 896 (Ky.1993); Cowles v. Rogers, 762 S.W.2d 414 (Ky.App.1988)).

      . KRS 132.290(1) (amended 2002).

      . Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky.2000) (citing Brown v. Jefferson County Police Merit Board, 751 S.W.2d 23 (Ky.1988)).

      . See Ky. Const. §§ 3, 170, 171, 172, 174.

      . See, e.g., KRS 132.020, 132.485, 134.810, 186.021, 186A.030.

      . KRS 132.485(l)(a), 186.021(2) (amended 2002), 186A.030.

      . KRS 189A.095 (amended 1996).

      . KRS 134.810(4), 186.021(2) (amended 2002).

      . 2002 Ky. Acts ch. 316 §§ 1, 3.

      . KRS 446.080(3) (“No statute shall be construed to be retroactive, unless expressly so declared.”); Magic Coal Co. v. Fox, 19 S.W.3d 88, 94 (Ky.2000) ("Unless the legislature clearly indicates otherwise, legislation is not intended to affect the legal consequences of events which occurred before its enactment.”).

        . Executive Branch Ethics Com’n v. Stephens, 92 S.W.3d 69 (Ky.2002). ("If there is any doubt from the language used by the legislature as to the intent and purpose of the law, then courts in interpreting the statute should avoid a construction which would be unreasonable and absurd in preference to one which is reasonable, rational, sensible and intelligent.”); Johnson v. Frankfort and Cincinnati, 303 Ky. 256, 197 S.W.2d 432 (1946) ("The words of the statute are to be given their plain meaning unless to do so would constitute an absurd result.”); See Bailey v. Reeves, 662 S.W.2d 832 (Ky.1984); Cosby v. Commonwealth, 147 S.W.3d 56 (Ky.2004). ("General principles of statutory construction hold that a court must not be guided by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy."); County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.2002) ("No single word or sentence is determinative, but the statute as a whole must be considered.”) Id. (In addition, "[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.”); Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984) (Moreover, "[i]n construing statutory provisions, it is presumed that the legislature did not intend an absurd result.”); Commonwealth, Central State Hosp. v. Gray, 880 S.W.2d 557, 559 (Ky.1994) (The legislature's intention "shall be effectuated, even at the expense of the letter of the law.”); and Commonwealth v. Rosenfield Bros. & Co., 118 Ky. 374, 80 S.W. 1178, 1180 (Ky.1904).

      . 947 S.W.2d 36 (Ky.1997).

      . Id. at 38-39.