text:
    Anthony Monroe POTTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0500-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Euva D. May, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

A Montgomery Circuit Court jury convicted Appellant, Anthony Monroe Potts, of three counts of trafficking in a controlled substance in the first degree, KRS 218A.1412, and found him to be a persistent felony offender in the first degree, KRS 532.080(3). He was sentenced to a total of twenty years of imprisonment and appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), claiming that the trial court committed reversible error by: (1) overruling his motion for a directed verdict of acquittal; and (2) permitting the introduction of two inaudible videotapes and one inaudible audiotape of purported drug transactions. Finding no error, we affirm.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜

Appellant’s convictions arose out of three drug transactions with Betty Hall, who was working as a confidential informant for the Kentucky State Police. Hall, who was previously charged with trafficking in marijuana, informed the Kentucky State Police that Appellant supplied her with crack cocaine. She agreed to cooperate in an investigation and began working with Detective Mike Martin of the Kentucky State Police. On August 29, 2001, Hall placed a call to Appellant’s cellular telephone and arranged to meet with him to purchase approximately one gram of crack cocaine. Martin searched Hall and her vehicle prior to the transaction to ensure that she did not possess any crack cocaine that she could falsely claim to have obtained from Appellant. Martin then equipped Hall with an audio recording device, placed a video recording device inside her vehicle, and gave her $100.00 in cash. Martin followed Hall to a Wal-Mart parking lot, where he witnessed Appellant exit a separate automobile and sit down in the passenger side of Hall’s vehicle. Appellant remained in Hall’s vehicle for a short period of time, returned to the other automobile, and drove away. Martin followed Hall to a predetermined location, where he searched her a second time. Hall gave Martin approximately one gram of crack cocaine, and she no longer had the cash that Martin had given to her. At Appellant’s trial, Hall testified that she gave Appellant the $100.00 in exchange for the crack cocaine.

On September 10, 2001, Hall contacted Appellant again and arranged to meet him in a car wash parking lot for another transaction. As before, Martin searched Hall and her vehicle, equipped Hall with an audio recording device, placed a video recording device inside Hall’s vehicle, and provided her with $100.00 in cash. Martin followed Hall to the car wash and witnessed Appellant approach her vehicle. This time, Appellant leaned into the window of Hall’s vehicle and briefly spoke with her. After Hall drove away, Martin followed her to a predetermined location, where he searched her and received approximately one gram of crack cocaine. Hall later testified that she gave Appellant the $100.00 in exchange for the crack cocaine.

Finally, on October 17, 2001, Hall again contacted Appellant on his cellular telephone and arranged a meeting in a Kroger parking lot. Martin followed the same procedures as with the two previous transactions, except this time he provided Hall with $250.00 in cash. Upon Hall’s arrival at the Kroger parking lot, Martin observed an unfamiliar vehicle, which he later discovered was registered to Appellant’s brother. Hall exited her own vehicle, walked toward the other vehicle, and sat in its front passenger seat. A short time later, Hall exited that vehicle, returned to her own vehicle, and drove away. Martin followed Hall to the debriefing location, where she provided him with an “eight ball,” or approximately four grams, of crack cocaine. Hall testified at Appellant’s trial that she gave Appellant the $250.00 in exchange for the “eight ball” of crack cocaine.

I. SUFFICIENCY OF THE EVIDENCE.

Appellant claims that the trial court erred in overruling his motion for a directed verdict of acquittal because the evidence was insufficient to support his convictions for trafficking in a controlled substance. Appellant asserts that there are two types of sufficiency: “quantitative sufficiency,” which is lacking when the evidence presented at trial fails to establish each element of the charged offense; and “qualitative sufficiency,” which, according to Appellant, is lacking when the evidence presented at trial is so unreliable that a conviction could not be based on that evidence alone. Appellant does not dispute that the Commonwealth presented enough evidence at his trial to satisfy the “quantitative sufficiency’ requirement. Rather, he argues that because the Commonwealth’s primary witness, Betty Hall, suffered from bipolar disorder, admitted to drug use, and had a motive to fabricate her accounts of Appellant’s drug transactions, her testimony was so lacking in credibility that it rendered the evidence “qualitatively insufficient” to support his convictions. We reject this proposition for several reasons.

Before addressing the validity of the so-called “qualitative sufficiency” issue, however, we note that this issue is unpre-served. Appellant’s motion for a directed verdict of acquittal failed to specify any grounds for the motion. CR 50.01 states, in pertinent part, “[a] motion for a directed verdict shall state the specific grounds therefor.” We have previously applied CR 50.01 to criminal cases and have held that its requirement of “specific grounds” must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal. Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky.2004); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky.1995). See also Hicks v. Commonwealth, 805 S.W.2d 144, 148 (Ky.App.1990). In Pate, the defendant moved for a directed verdict at the close of the Commonwealth’s case and renewed his motion at the close of all evidence, but merely stated, “I make a motion for a directed verdict, Your Honor.” 134 S.W.3d at 597. The motion in Pate, which we held to be inadequate to preserve the issue for appellate review, is factually indistinguishable from Appellant’s motion in this case. Because this issue is unpreserved, we will review it only for a palpable error that affected Appellant’s substantial rights and resulted in manifest injustice. RCr 10.26.

Appellant interprets dictum in Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky.2003), to mean that a failure by the Commonwealth to present sufficient evidence to support a criminal conviction always constitutes palpable error. Id. at 836-37. Our cases, however, are replete with affirmances of convictions where un-preserved errors pertained to the Commonwealth’s failure to prove an element of the offense. E.g., Pate, 134 S.W.3d at 597-98 (failure to prove possession of all the chemicals or equipment necessary to manufacture methamphetamine — but also holding that there was no failure of proof); Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky.1998) (failure to prove victim of unlawful imprisonment was exposed to risk of serious physical injury — but also holding that there was no failure of proof); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky.1995) (failure to prove child sex abuse victim was less than twelve years of age); Knox v. Commonwealth, 735 S.W.2d 711, 712 (Ky.1987) (same), overruled on other grounds by Lane v. Commonwealth, 956 S.W.2d 874 (Ky.1997); Jackson v. Commonwealth, 670 S.W.2d 828, 832 (Ky. 1984) (failure to prove value of stolen property — but vacating conviction on other grounds); Marshall v. Commonwealth, 625 S.W.2d 581, 583 (Ky.1981) (failure to prove date of prior conviction used for persistent felony offender enhancement). Appellant’s interpretation of Schoenba-chler not only runs contrary to each of these decisions, but also would essentially eliminate the well-established requirement that a party properly preserve a claim of insufficiency of evidence by informing the trial court of the relief requested and the reasons therefor. We therefore disagree with Appellant’s interpretation of Schoen-bachler.

According to Appellant, where evidence is found to be sufficiently lacking in credibility, the Due Process Clause requires reversal of a conviction primarily based on that evidence. Appellant cites Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), in support of that proposition. However, those decisions addressed only the admissibility of identification testimony, both holding that the reliability of the identification is the critical factor in determining its admissibility. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Neil, 409 U.S. at 199, 93 S.Ct. at 382. Neither opinion contains language suggesting that the Due Process Clause’s standards for admissibility of identification testimony should be extended to govern appellate review of claims of insufficiency of evidence.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court articulated the standard of review required by the Due Process Clause with respect to the sufficiency of evidence to support a criminal conviction, holding that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 318-19, 99 S.Ct. at 2788-89. Appellant claims that the Jackson standard embodies both “quantitative sufficiency” and “qualitative sufficiency.” However, the issue in Jackson concerned only what Appellant would call “quantitative sufficiency,” i.e., whether a sufficient amount of evidence was produced to satisfy the prosecution’s burden with regard to each element of the offense. See id. at 324-25, 99 S.Ct. at 2792. Furthermore, in elaborating on the standard required by the Due Process Clause, the Court stated:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Id. at 319, 99 S.Ct at 2789 (footnotes omitted). Jackson thus placed limits on the standard it announced, preserving the jury’s traditional role as arbiter of credibility. The United States Supreme Court confirmed these limitations years later:

The Jackson standard, which focuses on whether any rational juror could have convicted, looks to whether there is sufficient evidence which, if credited, could support the conviction.... [Ujnder Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.

Schlup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (emphasis added). Jackson, therefore, reserves questions of credibility for the finder of fact and does not require an evaluation of the “qualitative sufficiency” of the evidence.

Appellant also argues that, on several occasions, our predecessor court reversed convictions based on evidence it found to be lacking in credibility. Of course, our more recent decisions discussing the standard of review for sufficiency of the evidence make clear that “[cjredibility and weight of the evidence are matters within the exclusive province of the jury.” Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky.1999). See also Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky.1997); Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). Nevertheless, an examination of each of the cases relied upon by Appellant reveals that the reversals occurred not because the witnesses, themselves, lacked credibility, but because their testimony asserted the occurrence of physically impossible or inconceivable events. In Weinel v. Commonwealth, 302 Ky. 742, 196 S.W.2d 375 (1946), the complaining witness claimed that she was forced onto a bed, verbally threatened, and raped. However, undisputed evidence showed that a person speaking in even an ordinary tone of voice at the location of the alleged rape could be heard in the adjacent room occupied at the time by the complaining witness’s landlord. The landlord heard nothing. Our predecessor court concluded that the complaining witness’s account of the events was physically “inconceivable,” reasoning that “where the prosecuting witness relates circumstances which, in the light of human experience, preclude the possibility, or even the probability, of the crime having been committed, we will not hesitate to reverse the judgment and set aside the conviction.” Id., 196 S.W.2d at 378.

The reversal in Weinel was not premised upon the complaining witness’s mere lack of credibility, but rather upon an understanding that testimony inconsistent with physical laws or basic human experiences is so lacking in probative value that the testimony, by itself, is utterly ineffectual in establishing the facts claimed by its proponent. See Lambert v. Miller’s Adm’r, 277 Ky. 64, 125 S.W.2d 1019, 1023 (1939) (“Under the circumstances, their testimony is so at variance with facts admitted by plaintiffs to be true as to deprive their entire testimony of evi-dentiary value.”). This rule does not apply to situations, like the case sub judice, where a witness’s perception could have been impaired or circumstances indicate that a witness may have had a motive to fabricate. Rather, it only applies when a witness’s testimony is contradicted by incontrovertible physical evidence or an undisputed matter of common knowledge.

When physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith. The fact established by the situation itself and matters of common knowledge, so clearly that no one can reasonably dispute it, notwithstanding evidence to the contrary, must stand uncontroverted and uncontrovertible, condemning as false such contrary evidence, either upon the ground of mistake or something worse.

Louisville & Nashville R. Co. v. Welsh, 272 Ky. 120, 113 S.W.2d 879, 888 (1937) (quoting Groth v. Thomann, 110 Wis. 488, 86 N.W. 178, 181 (1901)). Like the constitutional standard articulated in Jackson, this rule reserves determinations of witness credibility for the jury. Hauser v. Pub. Serv. Co. of Ind., 271 Ky. 206, 111 S.W.2d 657, 659-60 (1937) (“It is true that the credibility of the witnesses is for the jury [but], .... where the facts testified to are utterly at variance with well-established and universally recognized physical laws, and therefore inherently impossible, the courts may refuse to submit the case to the jury.”); Webb v. Commonwealth, 223 Ky. 424, 3 S.W.2d 1080, 1081 (1928) (setting aside a rape conviction because the complaining witness’s account of the alleged rape was inconceivable in light of the physical facts and human experience, but “[I]eaving out of question the credibility of the witnesses and the contradictions in their testimony”).

The other decisions relied upon by Appellant constitute nothing more than straightforward applications of this rule. Appellant cites Kentucky Power Co. v. Dillon, 345 S.W.2d 486 (Ky.1961), overruled on other grounds by Perry v. Ernest R. Hamilton Associates, Inc., 485 S.W.2d 505, 509 (Ky.1972), for the proposition that a directed verdict is appropriate where the Commonwealth’s evidence lacks “fitness to produce conviction.” Id. at 489. However, in discussing the “fitness” of the evidence in Kentucky Power, our predecessor court referred not merely to the credibility of the plaintiffs’ witnesses, but to the objective circumstances that rendered their accounts of an electrical fire physically impossible. Id. (“The continuing absence of any indication of a defective condition is in accord with the undisputed evidence that a transformer of the kind used here cannot ‘pop and crack like a shotgun,’ or pop at all except during lightning, and there was no claim of a storm at that time_”). The undisputed physical circumstances completely deprived the plaintiffs’ testimony of its probative value. Id. (“We cannot, in good conscience, say that there was any evidence of probative value to show that the fire was caused by a defective or faulty condition of the defendant’s wires and equipment.”). Likewise, in Coney Island Co. v. Brown, 290 Ky. 750, 162 S.W.2d 785 (1942), the plaintiffs claim that she was injured when a river steamboat violently lurched out of a wharf was controverted by evidence proving that it was physically impossible for a large steamboat to start with any sudden movement. Id. at 786-87. Our predecessor court reaffirmed the fact-finder’s role in determining questions of credibility, but held that a directed verdict would be appropriate when a claim is based on testimony that is so contrary to scientific principles or common experience “as to be manifestly without probative value.” Id. at 787-88.

Turning at last to the facts of the case sub judice, we hold that the evidence was sufficient in all respects to sustain Appellant’s three convictions for trafficking in a controlled substance. Appellant asserts that Hall’s testimony was the only evidence that he actually sold crack cocaine, and that her perception was questionable because of her bipolar disorder and admitted drug use. Appellant also questions Hall’s credibility, alleging that the outstanding marijuana charges against her provided a motive to fabricate her testimony. Each of these arguments concerns an ordinary matter of credibility, which is within the exclusive province of the jury. Smith, 5 S.W.3d at 129; Estep, 957 S.W.2d at 193; Benham, 816 S.W.2d at 187. Appellant has cited nothing indicating that Hall’s testimony was contradicted by incontrovertible physical or scientific evidence or by an undisputed matter of common knowledge. In fact, Hall’s testimony was corroborated by all of the circumstances surrounding the three transactions: Detective Martin’s descriptions of the events that occurred outside of the vehicles in each instance, Martin’s searches of Hall before and after each transaction coupled with Hall’s possession of crack cocaine after each transaction, and the videotape depicting Appellant inside Hall’s vehicle during the first transaction and leaning into Hall’s vehicle during the second transaction. On appellate review, “[i]f under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983). In this case, it was not clearly unreasonable for the jury to find Appellant guilty of each of the three counts of trafficking. Accordingly, the trial court committed no error, palpable or otherwise, in overruling Appellant’s motion for a directed verdict of acquittal.

II. ADMISSION OF VIDEOTAPES AND AUDIOTAPE.

During Hall’s testimony, the Commonwealth played for the jury videotapes of the August 29, 2001, and September 10, 2001, transactions, each recorded by the device placed inside Hall’s vehicle. Because the October 17, 2001, transaction took place inside a different vehicle, it could not be videotaped, and the Commonwealth instead played for the jury an audiotape recorded by the device placed on Hall’s person. Appellant claims that each of these three tapes was inaudible and argues that, for this reason, their admission was reversible error. Appellant concedes that he did not preserve this issue by contemporaneous objection, but requests review for palpable error. KRE 103(e).

“It is within the discretion of a trial judge to decide whether because portions of a tape are inaudible or indistinct, the entire tape must be excluded.” Sanborn v. Commonwealth, 754 S.W.2d 534, 540 (Ky.1988). Where “the inaudible portions are not so substantial as to render the recordings untrustworthy as a whole,” the trial court generally acts within its discretion in admitting the recordings. Norton v. Commonwealth, 890 S.W.2d 632, 636 (Ky.App.1994). Here, portions of the audiotape of the October 17, 2001, transaction were indeed inaudible, but the inaudible portions were not so pervasive as to render the recording untrustworthy as a whole. Thus, the trial court did not err in its admission.

The videotapes depicting the August 29, 2001, and September 10, 2001, transactions were largely inaudible. Nevertheless, the first videotape captured the visual image of Appellant sitting inside Hall’s vehicle, and the second videotape showed Appellant leaning inside Hall’s vehicle. In placing Appellant at the location of both crimes at the time they were occurring, the videotapes contained elements that were probative of the charges against Appellant and were thus properly admitted. Cf. Johnson v. Commonwealth, 90 S.W.3d 39, 46 (Ky.2002) (“While many parts of the tapes are completely inaudible, some of the parts of the tapes ... are sufficiently audible and probative of the charges .... ”). Moreover, a palpable error must be one that would have been obvious to the trial court. Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky.2005). Here, despite the fact that Appellant’s trial attorney reviewed the videotapes before trial, he failed to object to their admission, thus failed to put the trial court on notice that the videotapes would be inaudible. Each videotape was very brief, and any potential error arising from inaudibleness would not have been obvious to the trial court until the playing of the videotape was concluded.

Accordingly, the judgments of conviction and sentences imposed by the Montgomery Circuit Court are affirmed.

All concur.

      . The discussion is dictum because the holding in Schoenbachler was that the Commonwealth did prove every element of the offense beyond a reasonable doubt. Id. at 837-38.


source: Caselaw Access Project

author: Justice LAMBERT.

license: Public Domain

text:
    Terry GOFF Appellant, v. Laura Andrews GOFF Appellee.
    No. 2003-SC-000477-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Wesley V. Milliken, Milliken Law Firm, Bowling Green, KY, Counsel for Appellant.
    Laura Andrews Goff, Franklin, TN, Counsel for Appellee.
   OPinion of the Court by

Justice LAMBERT.

Where applicable, the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA) allow Kentucky courts to exercise jurisdiction over child custody cases or jurisdiction to enforce foreign custody judgments where no other state has asserted jurisdiction or another state has declined to exercise jurisdiction.

Terry Goff and Laura Goff were married in Wilson County, Tennessee on June 17, 1996. At that time, they purchased a home in Nashville, Tennessee. Less than one month after the marriage, July 10, 1996, Mr. Goff filed a petition for annulment of the marriage in the Warren [Kentucky] Circuit Court. Ms. Goff continued living in the marital home in Nashville, and Mr. Goff resided in Warren County, Kentucky.

On October 3, 1996, Ms. Goff filed for divorce and other relief in Davidson County, Tennessee. On October 13, 1996, Ms. Goff gave birth in Nashville, Tennessee. On October 15, 1996, Mr. Goff filed an amended petition in Kentucky seeking dissolution of the marriage. On December 6, 1996, the Warren Circuit Court entered an order striking Ms. Goffs motion to dismiss her request to stay the divorce proceeding on the grounds that she intentionally did not appear for the hearing.

On January 17, 1997, the Davidson County, Tennessee court dismissed Ms. Goff’s claim for child support pendente lite and her other claims against Mr. Goff on the basis that there was a pending dissolution action in Kentucky. At that time the child had been living exclusively in Tennessee since her birth, approximately three months.

On January 29, 1997, Mr. Goff filed a motion in the Warren Circuit Court to set child support, wherein he acknowledged that Ms. Goff was the “fit and proper custodian” of the minor child. In his motion, Mr. Goff stated that Kentucky had jurisdiction to set his child support obligation under Gaines v. Gaines. On February 18, 1997, the parties reached a settlement in the Kentucky dissolution action. An agreed decree of dissolution of marriage (“Agreement”) was prepared by the parties, signed by the court, and entered on March 3, 1997. In the Agreement, Ms. Goff consented to the “jurisdiction of this Court for the purpose of resolving her marriage to the Petitioner and resolving all issues arising out of that marriage.” The Agreement contained recitals granting custody of the child to Ms. Goff with a provision allowing Mr. Goff reasonable visitation “at times and places to be agreed upon by the parties.” In addition to custody, it was agreed that Mr. Goff would pay child support.

The parties, however, returned to court on a number of occasions to litigate various disputes regarding child support and visitation. In April 1999, Ms. Goff filed a motion seeking past-due child support and seeking to increase child support. By order entered on June 4, 1999, the court denied the motion to increase child support, but ordered Mr. Goff to pay an ar-rearage of $2,800.00. In April of 2000, a dispute arose between the parties regarding visitation. On May 12, 2000, the trial court resolved the matter by entering a formal visitation order and schedule. In response to further disputes over visitation, the trial court entered a supplemental order on June 14, 2000.

Additional motions were filed disputing visitation from May through October of 2000. In August of 2000, Mr. Goff filed a motion seeking joint custody of the child. He subsequently asked the court to order a joint custody evaluation. On October 30, 2000, Ms. Goff filed a motion to terminate Mr. Goffs visitation with the child, alleging that his behavior had subjected the child to emotional trauma. She also filed a motion to hold Mr. Goff in contempt after he failed to return the child from visitation as scheduled.

On November 29, 2000, Ms. Goff filed a petition to register a foreign decree in Williamson County, Tennessee, asserting that Tennessee had jurisdiction over custody matters. On April 2, 2001, a trial was held in the court of Williamson County, Tennessee. During this trial, the Kentucky custody decree was registered as a foreign decree, and the Tennessee court granted modification of the original custody decree.

On September 6, 2001, the Warren County Family Court issued an order nullifying the original custody decision. The order denied Mr. Goffs request for modification of custody and found that the original custody determination was void. The family court reasoned that (1) Kentucky was not the child’s home state six months before or after the commencement of the divorce proceedings; (2) the child did not have significant contacts with Kentucky nor was there substantial evidence concerning the child’s present or future care, protection, training and personal relationships; (3) the child is not present in this state due to abandonment, and no emergency situation exists; and (4) Tennessee appears to have jurisdiction over the matter and is actively asserting jurisdiction. In sum, the court held that Kentucky lacked original jurisdiction over the custody matter and that Kentucky would defer to Tennessee to enter a custody order.

On May 30, 2003, the Kentucky Court of Appeals reversed in part the decision of the Warren Family Court as to lack of jurisdiction of the original 1997 dissolution action whereby the Warren Circuit Court took jurisdiction. However, the Court of Appeals affirmed in part, holding that since the child resided outside of Kentucky for more than six months, Kentucky no longer had continuing jurisdiction to modify custody. Although the Court of Appeals noted this was clearly not the child’s home state, it found original jurisdiction under the provisions of 28 U.S.C. § 1738A(c)(2)(d) of the PKPA and subsection (d) of KRS 403.420(1) of the UCCJA because no other state asserted jurisdiction or had declined jurisdiction. The Court of Appeals characterized the controlling question as “whether a Tennessee court was asserting jurisdiction when the original decree was entered in 1997.” The Court of Appeals concluded that the Davidson County, Tennessee, court declined to exercise jurisdiction over the custody matter in 1997 by dismissing Ms. Goffs dissolution action in favor of the Kentucky action. Thus, the basis of the Court of Appeal’s holding was that another state court (Tennessee) had declined jurisdiction when it dismissed a pending child support claim in favor of the Kentucky action.

This Court granted discretionary review to decide the following two issues concerning the UCCJA and PKPA: (1) whether there was original jurisdiction in the Warren Circuit Court to enter a custody order in the Decree of Dissolution of Marriage, as agreed upon by the parties, and (2) whether that court has continuing jurisdiction to modify the custody order.

Ms. Goff argues that the Kentucky-trial court’s subsequent dismissal of the child custody action for lack of jurisdiction was proper. She claims that she and the child had never resided in Kentucky and were residents of Tennessee at all times. She claims that the UCCJA did not confer jurisdiction because Kentucky had no significant connection with the child. In response to KRS 403.420(l)(d) jurisdiction, she argues that Tennessee did not decline jurisdiction in the matter and is now asserting jurisdiction over the child custody matter, which she says is support for the decision of the Kentucky trial court to acknowledge that it had no jurisdiction. Our review reveals that the Tennessee court denied Ms. Goffs motion for child support pendente lite on grounds that a prior suit was pending, and dismissed her entire claim based on the pending Kentucky action. The Court made no specific mention of child custody in the order dismissing.

At the time this dispute began, the UC-CJA governed all issues surrounding jurisdiction over child custody matters. During the 2004 regular session of the General Assembly, however, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), KRS 403.800-880, replaced the UCCJA to bring Kentucky law in line with the federal Parental Kidnapping Prevention Act. However, the now superseded UCCJA governs this matter as it was the law at the inception of this litigation.

A fundamental purpose of the UCCJA is to govern child custody proceedings. It specifically states that its purpose is to avoid jurisdictional competition and conflict with other states in child custody matters. The UCCJA is a threshold consideration and it is clear that a change in custody shall not be entertained unless the circumstances covered by the UCCJA are present. The requirements for jurisdiction under the UCCJA are as follows:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

The PKPA, adopted in 1980, “imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the Act.” Therefore, a state wishing to have its original custody decree enforced in another state must comply with the provisions of the PKPA. For a state to ensure enforceability of its decrees in sister states, at least one of the requirements below must be satisfied:

(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A)such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subpara-graph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subpara-graph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

Included within PKPA subsection (g) is the mandate that a Kentucky court communicate with the court of another state to determine if custody is at issue.

As subject matter jurisdiction cannot be conferred by waiver or consent, claims as to a lack of subject matter jurisdiction may be raised at anytime and reviewed when raised by any party. It is indisputable that at the time of the child’s birth neither Kentucky nor Tennessee had home state jurisdiction, and no party makes such a claim. At the time of the filing of the petition for dissolution in Tennessee the child was less than six months old, and had never lived outside of Tennessee. It is generally accepted that physical presence of the child, while desirable, is not an absolute prerequisite for jurisdiction to determine custody in Kentucky. Nevertheless, the fact the child may have some family in Kentucky, including his or her father, does not overcome the fact of more important evidence concerning the child’s care, protection, training, and personal relationships in another state. Likewise, there is no indication that emergency jurisdiction existed in Kentucky under KRS 403.420(l)(c). KRS 403.420(l)(d), commonly known as “default” jurisdiction, occurs in instances where no other jurisdictional grounds under the UCCJA apply. Under this provision, there must be a finding that another state has declined jurisdiction on the grounds that the forum state is the more appropriate forum, and that it is in the best interests of the child to assume jurisdiction.

Kentucky law provides some guidance on the application of default jurisdiction provision, but the cases provide little rationale for its application.

In Moore v. Asente, we held that in addition to jurisdiction under KRS 403.420(l)(a), the Kenton Circuit Court had jurisdiction under KRS 403.420(l)(d) to enter its judgments and orders in a child custody dispute stemming from the breakdown of a proposed private adoption between residents of Ohio and Kentucky. The residents of Kentucky proposed to place a child for adoption and after some hesitation committed to the process by placing the child with an Ohio family. We held that the Kenton Circuit Court properly determined that it had jurisdiction. While Kentucky was not the child’s home state when the action was commenced, Kentucky had been the child’s home state within six months before commencement of the proceeding. We noted that at the time the action commenced, Ohio could have qualified as the child’s home state. “Ohio had previously yielded to Kentucky, declined to exercise jurisdiction, and recognized that Kentucky ⅛ the proper forum in which to assert jurisdiction over this matter.’ ”

Gullett v. Gullett presents somewhat similar facts to the present case in that the child involved in the custody dispute was born in an adjacent state a few weeks after the filing of the divorce. The Court of Appeals affirmed a trial court ruling that it had jurisdiction to consider the post-dissolution child support and visitation proceedings. Initially, the husband brought post-dissolution child custody and visitation actions two weeks prior to the birth of the child and after the mother moved out of Kentucky. The Court of Appeals held that KRS 403.420(l)(d) applied because no other state had jurisdiction in accordance with subsections (a)-(c) and it was in the best interest of the child for the state to assume jurisdiction. When the child was born, Ohio attained concurrent jurisdiction with Kentucky to decide custody matters concerning the child; however, the fact that Ohio later became the child’s home state did not divest Kentucky of original jurisdiction under KRS 403.420(l)(d). “The mere fact that the child and his custodial parent live in another state does not, as a matter of law, divest the trial court of jurisdiction.” The Court of Appeals held that at the time of the dissolution the mother failed to show that jurisdiction was not proper under KRS 403.420(1)(d). This was based on her failure to show in the record that she and the child were residents of Ohio. The court based its decision on the Ohio equivalent of the UCCJA and stated that Ohio shall not exercise jurisdiction if at the time of the filing of the petition “a proceeding concerning the custody of the child was pending in the court of another state exercising jurisdiction substantially in conformity with [the UCCJA].”

In Karahalios v. Karahalios, the Court of Appeals held that under the provision of the PKPA, 28 U.S.C. § 1738A(g), a second state may not initiate a child custody case when custody is pending in another state. The Court of Appeals held that the failure of the Kentucky court to communicate with Tennessee divested it of custody jurisdiction because the Kentucky court did not determine whether the Tennessee court considered the custody matter to be pending.

As the foregoing precedents provide little guidance on the precise application of the default provision, we look to its application in foreign jurisdictions. There are several reasons a court may decline jurisdiction of custody matters and allow another court to assume jurisdiction. Among these reasons are a foreign court’s determination that another state is a more appropriate forum, that none of the jurisdictional rules of the UCCJA apply, and that bifurcation of the divorce and custody proceedings would be wasteful and dilatory. It is even possible for a Kentucky court to exercise jurisdiction where the forum court concludes that another state would have declined to exercise jurisdiction if the custody action had been brought in that state. This is not an exhaustive list of all possibilities for declining jurisdiction, but is illustrative of the need for courts to give a practical and credible basis for denying jurisdiction that is consistent with the purposes of the UCCJA and PKPA. Moreover, courts must clearly communicate by virtue of KRS 403.450(3).

In this case, Tennessee declined to hear a motion offered by Ms. Goff to establish child support payments. It also dismissed her divorce case. In its order dismissing, the Tennessee court impliedly declined jurisdiction to determine child custody. Upon dismissal, there was no longer a vehicle by which the Tennessee Court could adjudicate any issues between the parties. In the “agreed” decree of dissolution of marriage of March 3, 1997, the Kentucky court determined that Ms. Goff “is a fit and proper person to have the care and custody and control of the parties’ infant child.” The refusal of the Tennessee court to hear the child support motion and dismissal of the case amounts to clear communication from the Tennessee court that it was refusing to exercise jurisdiction over the child custody matter. In light of the requirement that courts communicate a clear intent or reason for declining jurisdiction, the record is sufficient. Therefore, the Tennessee court effectively declined jurisdiction, thereby authorizing Kentucky to assert jurisdiction pursuant to KRS 403.420(l)(d). Therefore, the decision of the Court of Appeals on this issue is affirmed.

The second issue is whether Kentucky has continuing jurisdiction to modify a custody order. At the time a party seeks modification, KRS 403.420(l)(a)-(d) must apply as the jurisdictional requirements of the UCCJA apply to all cases regardless of whether the custody order originated in Kentucky or another state or foreign court. That threshold determination required by the UCCJA to establish Kentucky jurisdiction is likewise required to modify an order even of its own making. Mr. Goff’s request for change in custody can only be considered when the circumstances covered by the UCCJA are present. In Reeves v. Reeves, the Court of Appeals stated that the continuing jurisdiction was a function of “whether the child has a ‘significant connection’” to Kentucky. The Court then delineated that continuing jurisdiction would be proper if Kentucky were the child’s home state within the last six months. Another Court of Appeals case, Turley v. Griffin, explained that continuing jurisdiction is inappropriate because the child resided outside of Kentucky for more than six months thereby losing home state status. As the Reeves court held, relying on Turley, the “state which has the ‘most significant connection’ to the child needs to be the one to assert jurisdiction over matters affecting custody and visitation.” The record indicates that the child was born in Tennessee and that Tennessee is the child’s home state. Therefore, Kentucky does not have continuing jurisdiction to modify custody. At the time modification was sought, Tennessee was unquestionably the home state of the child and Kentucky courts were without custody modification jurisdiction.

Accordingly, we affirm the Court of Appeals.

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

      . KRS 403.420(1).

      . 28 U.S.C. § 1738A(c)(2)(d).

      .Mr. Goff was a resident of the Commonwealth at all relevant times.

      . This case began in Warren Circuit Court, Division II, and was transferred to Division I, and then again transferred to Division III after the Family Court was established. Prior to the establishment of Family Court, Domestic Relations Commissioners routinely handled cases of this type.

      . 566 S.W.2d 814 (Ky.1978).

      . KRS 403.400 through 403.620 as adopted in 1980.

      . See Graham & Keller, Domestic Relations Law, 15 Kentucky Practice § 14.23 (2d ed. 2005) ("The new act will make significant changes in initial custody jurisdiction because it will eliminate the possibility that a mere ‘best interest' and ‘significant connection’ determination can serve as the basis for an enforceable custody order. This change will also conform Kentucky law to federal law, the Parental Kidnapping Prevention Act, known as the PKPA. The act will also answer questions about the troubling problem of continuing jurisdiction when a Kentucky court makes a custody determination but the child later gains and new home state elsewhere.”).

      . KRS 403.400(1) provides:
      The general purposes of [the UCCJA] are to:
      (a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
      (b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child;
      (c) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
      (d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
      (e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
      (f) Avoid relitigation of custody decisions of other states in this state insofar as feasible;
      (g) Facilitate the enforcement of custody decrees of other states;
      (h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
      (i) Make uniform the laws of those states which enact it.

      . KRS 403.400(1)

      . Quisenberry v. Quisenberry, 785 S.W.2d 485, 486 (Ky.1990).

      . KRS 403.420(1).

      . 28 U.S.C. § 1738A (2000).

      . Thompson v. Thompson, 484 U.S. 174, 175-76, 108 S.Ct. 513, 514-15, 98 L.Ed.2d 512, 517 (1988) (noting that the United States Congress has the authority under the Full Faith and Credit Clause to apply federal enforceability standards for custody decrees between states).

      .28 U.S.C. § 1738A (2000).

      . Id. § 1738A(g) provides as follows: "A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pen-dency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.” See KRS 403.450(3). See, e.g., Karahalios v. Karahalios, 848 S.W.2d 457 (Ky.App.1993).

      . CR 12.08. Commonwealth, Dept. of Highways v. Berryman, 363 S.W.2d 525, 526 (Ky. 1962); Rodney v. Adams, 268 S.W.2d 940 (Ky.1954); Gullett v. Gullett, 992 S.W.2d 866, 869 (Ky.App.1999) (noting that questions of jurisdiction may be raised for the first time on appeal).

      . Duncan v. O’Nan, 451 S.W.2d 626, 631 (Ky.1970) (noting that "subject matter jurisdiction cannot be bom of waiver, consent or estoppel has to do with those cases only where the court has not been given any power to the do anything at all in such a case, as where a tribunal vested with civil competence attempts to convict a citizen of a crime. In other words, ‘subject matter' does not mean 'this case’ but ‘this kind of case'_"). Gullett, 992 S.W.2d at 870.

      . KRS 403.420(3). See Graham & Keller, Domestic Relations Law, 15 Kentucky Practice § 14.28 (2d ed.1997) for a discussion of significant connection jurisdiction under the UCCJA.

      . Turley v. Griffin, 508 S.W.2d 764, 766 (Ky. 1974) (adopting that Kentucky must have "maximum contacts” to exercise continuing jurisdiction); Wood v. Graham, 633 S.W.2d 404 (Ky.1982) (holding that where a child had never lived outside of Ohio, was brought by the father to Kentucky prior to a filing for dissolution of marriage, and there was no evidence in the record to show that it would be in the best interests of the child for Kentucky to assume jurisdiction, that it was in the best interests of the child for Ohio to have custody jurisdiction because all evidence as to those who cared, provided for, and supervised the child was in that state).

      . See Cabinet for Human Resources v. McKeehan, 672 S.W.2d 934 (Ky.App.1984).

      . David Carl Minneman, Annotation, Default Jurisdiction of the Court under Sec. 3(A)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or The Parental Kidnapping and Prevention Act (PKPA), 28 U.S.C.A. Sec. 1738A(C)(2)(D), 6 A.L.R.5th 69 (1992).

      . Moore v. Asente, 110 S.W.3d 336, 349-50 (Ky.2003).

      . Id. at 350 (quoting In re Adoption of Asente, 90 Ohio St.3d 91, 734 N.E.2d 1224, 1235 (2000)).

      . 992 S.W.2d 866, 870 (Ky.App.1999)

      . Id. ("However, because the child was unborn at the time of the petition, again, there is an anomaly in the application of KRS 403.420(b) in that the unborn child, having no life experiences, had not yet had the opportunity to form ‘significant connections’ with a state, be it Kentucky or Ohio.”).

      . Id.citing Dillard v. Dillard, 859 S.W.2d 134, 137 (Ky.App.1993).

      . Id.

      . 848 S.W.2d 457, 461 (Ky.App.1993).

      . Id. (noting that "the fact remains that the failure of the circuit court to communicate with the Tennessee court has resulted in a predicament that the UCCJA was enacted to prevent, namely, jurisdictional competition and lack of cooperation with a court of another state.”).

      . Matter of Guardianship of Mayes, 523 N.E.2d 249 (Ind.App.1988).

      . Redding v. Redding, 398 Mass. 102, 495 N.E.2d 297 (1986).

      . See Marriage of Hubbard, 315 N.W.2d 75, 81 (Iowa 1982) (holding that jurisdiction is proper since the other state would have declined jurisdiction under the UCCJA if a custody action had brought there).

      . See supra note 7.

      .The Order states as follows: "This matter was before the Court on December 13, 1996 on Motion of Mrs. Goff for child support pendente lite, and Motion of Mr. Goff to dismiss, statements of counsel and the entire record, from all of which the Court found that Mr. Goff's Motion to Dismiss should be granted and Mrs. Goff's Motion should be denied. Accordingly, it is therefore ORDERED, ADJUDGED and DECREED that the Motion of Laura K. Andrews Goff for child support pen-dente lite shall be, and is hereby, denied. It is further ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss filed on behalf of Terry W. Goff shall be, and is hereby, dismissed on the grounds of prior suit pending. It is finally ORDERED, ADJUDGED AND DECREED that the costs of this cause shall be, and are hereby, taxed against the Plaintiff, Laura K. Andrews Goff, for which execution may issue if necessary. Enter this the 13th day of January, 1997.”

      . Quisenberry v. Quisenberry, 785 S.W.2d 485 (Ky.1990).

      . Id.

      . 41 S.W.3d 866, 867 (Ky.App.2001).

      . Id.

      . 508 S.W.2d 764 (Ky.App.1974).

        .Reeves, 41 S.W.3d at 867 (holding that lack of continuing jurisdiction where both minor children appear to have resided outside of Kentucky for longer than six months, and additionally, it appears that neither party resided in the state at the time the motion was made).


author: Justice ROACH.

text:
    Tommie Lee PATTERSON, Appellant, v. Thomas C. BLAIR, Jr.; and Tommy Blair, Inc., d/b/a Courtesy Autoplex, Appellees.
    No. 2003-SC-000646-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      James W. Owens, Chartered, Donald R. Green, Jr., Paducah, Counsel for Appellant.
    Mark D. Pierce, Paducah, Counsel for Appellees.
   Opinion of the Court by

Justice ROACH.

I. INTRODUCTION

Tommie Lee Patterson brought suit against Thomas Blair, Jr. (“Blair, Jr.”) and Tommy Blair, Inc., d/b/a Courtesy Auto-plex (“Courtesy”). Patterson alleged several causes of action against Blair, Jr. and claimed that Courtesy was vicariously liable for the tortious acts of its employee, Blair, Jr. A jury awarded Patterson damages of $42,465.18 and found that Courtesy was vicariously liable for Blair, Jr.’s conduct. A divided panel of the Court of Appeals held that Blair, Jr. was not acting within the scope of his employment and therefore concluded that Courtesy could not be held liable under respondeat superi- or. The entire Court of Appeals panel, however, agreed that the trial court’s denial of Patterson’s requested instruction on punitive damages was in error. This Court granted discretionary review to consider whether the jury’s verdict, holding Courtesy vicariously hable for Blair, Jr.’s actions, should be upheld. Having determined that the jury correctly determined that Blair, Jr. was acting within the scope of employment when he assaulted Patterson, we reverse the Court of Appeals and reinstate the jury’s verdict against Courtesy.

II. FACTS

On September 28, 1995, Patterson entered into an agreement with Courtesy to trade his Camaro for a new 1995 GMC Jimmy. At the time of the trade, Patterson owed $12,402.82 on the Camaro. Despite this, he incorrectly informed Courtesy that he owed only $9,500.00 on the car. The transaction occurred at a time when the bank was closed and Courtesy could not verify the payoff amount on the loan. Courtesy allowed Patterson to take possession of the Jimmy, but did not transfer title. An agreement was also executed providing that Courtesy would credit Patterson if he had overstated his outstanding indebtedness on the Camaro and, likewise, that he would pay the difference if his figure understated that amount. When the bank opened the next day, Courtesy discovered the amount Patterson actually owed on the Camaro. When notified of this discrepancy, Patterson refused to pay the additional sum and refused to return the Jimmy. Courtesy subsequently tried unsuccessfully to repossess the truck on at least two occasions.

On October 4, 1995, after investigating where he could find Patterson, Blair, Jr. and another Courtesy employee encountered Patterson, who was driving the Jimmy, on a public road. At a stoplight, Blair, Jr. exited his car and knocked on the Jimmy’s driver-side window, demanding that Patterson get out of the vehicle. When Patterson refused, Blair, Jr. drew a pistol he was carrying and fired two shots in the front tire and two shots in the rear tire of the Jimmy. Ultimately, the disabled truck was impounded and returned to Courtesy by the police.

Courtesy obtained a judgment against Patterson for the Jimmy’s loss in value. Citizens Bank, which had financed the Ca-maro that had been traded-in, obtained a judgment against Patterson for the remaining sum owed on its loan. Blair, Jr. was criminally prosecuted and was convicted of wanton endangerment in the first degree, a felony. Patterson sued Blair, Jr. and Courtesy under several different tort theories. At trial, the jury was instructed on assault and the theory of vicarious liability, allowing the jury to impute liability to Courtesy for the actions of its agent, Blair, Jr.

III. DISCUSSION

Stated generally, the doctrine of respon-deat superior, also called vicarious liability, provides the legal rationale for holding a master responsible for a tort committed by his servant. The origins of the doctrine of respondeat superior run deep in the common law. As Blackstone explained: “As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant if done by his command either expressly given or implied_” 1 William Blackstone, Commentaries on the Law of Eng land 429 (1765). Not surprisingly, vicarious liability is a long-standing principle of Kentucky’s tort law.

A. The Rationale

Over the years, commentators have offered various justifications in support of respondeat superior liability. For instance, Judge Posner explained that the principle has sometimes been thought of as an example of the law’s sympathy to “deep-pocket” arguments. Richard A. Posner, Economic Analysis of Law § 6.8, at 204-05 (5th ed. 1998) [hereinafter Pos-ner, Economic Analysis]. Simply put, because employees often lack sufficient assets to pay tort judgments, respondeat superior is necessary to allow victims to reach into employers’ deep-pockets for compensation. Ultimately, however, this is an unsatisfactory, or at least incomplete, explanation, id., especially since the principle of respondeat superior evolved during a period in which the common law was not noted for its sympathy toward accident victims. Moreover, there are now limits on the employer’s liability. The employer is strictly liable only for damages resulting from the tortious acts of his employees. A victim injured by an employee who is exercising due care and who has not acted intentionally has no claim against the employer. And the employer is only liable for acts of his employee committed in the scope of the employment. See id. (specifically noting this requirement as proof of “the inadequacy of a pure deep-pocket explanation for respondeat superior”).

Thus, it is clear that the justification for the rule has to be more than just forcing the employer to compensate victims because he can afford to do so. Various judges and commentators have recognized this inadequacy and have offered myriad alternate, or at least supplemental, and more robust rationales for the rule. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 500 (5th ed. 1984) [hereinafter Prosser and Keeton] (discussing the “multitude of very ingenious reasons” in support of vicarious liability).

One of these supplemental rationales for respondeat superior liability can be found in the field of economics.

The economic explanation for respon-deat superior focuses first on the complete helplessness of the accident victim to avoid incorrect employment decisions by exercising care or by altering his activity. This in itself would be an insufficient reason for imposing strict liability if the employer could always or at least most of the time prevent negligence by his employees simply by exercising care in his selection and supervision of them. But employees will sometimes be careless even if they are carefully screened and supervised, if only because their lack of ready assets reduces their financial incentives to take care. And there are a number of activity measures (as distinct from care measures) that an employer can take to reduce accident behavior by his employees, including delegating more work to independent contractors and giving employees simpler tasks requiring less care.
However, the most important reason for respondeat superior is the fact mentioned that employees often cannot pay a tort judgment against them. Our point is not a deep-pocket point; it is that the employer can use the threat of termination as a substitute for employee tort liability in inducing employees to act with due care, and that he will do so only if the employee’s carelessness is a cost to him. Making the employer hable for his employee’s tort serves to enlist the employer as a substitute enforcer of tort law where the primary enforcement mechanism, a tort action against the immediate tortfeasor, is unworkable.

William M. Landes and Richard A. Posner, The Economic Structure of Tort Law 120-21 (1987) [hereinafter Landes and Posner]; see also Posner, Economic Analysis § 6.8, at 204-05 (“The rationale for [respondeat superior] is that most employees lack the resources to pay a judgment if they injure someone seriously. They therefore are not very responsive to the threat of tort liability. The employer, however, can induce them to be careful, as by firing or otherwise penalizing them for their carelessness .... Making the employer liable for his employees’ torts will give him an incentive to use such inducements.”); Alan 0. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv. L.Rev. 563 (1988) (discussing the economic efficiency of vicarious liability).

The Prosser and Keeton treatise offers a similar explanation:

What has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely. Notwithstanding the occasional condemnation of the entire doctrine which used to appear in the past, the tendency is clearly to justify it on such grounds, and gradually to extend it.

Prosser and Keeton at 500-01 (footnotes omitted).

In 1936, our own predecessor court explained the purpose of the doctrine as follows:

The doctrine of respondeat superior is at best a harsh rule, dictated by considerations of public policy and the necessity for holding a responsible person liable for the acts done by others in the prosecution of his business, as well as for placing on employers an incentive to hire only careful employees.

Johnson v. Brewer, 266 Ky. 314, 98 S.W.2d 889, 891 (1936).

In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir.1968), one of the most cited respondeat superior cases involving an intentional tort, Judge Friendly rejected many of the traditional justifications for the doctrine, focusing instead on the activities of the business enterprise. In Bushey, a drunken sailor returned to his ship and opened valves that flooded a drydock, damaging both the ship and the drydock. Judge Friendly rejected many of the traditional policy arguments that have been offered in support of re-spondeat superior liability. Id. at 170-71. He noted that even though the drunken sailor was not motivated by a purpose to serve his employer, respondeat superior liability was proper. This liability rested on the fact that the “business enterprise cannot justly disclaim responsibility for accidents which may be fairly said to be characteristic of its activities” and that the sailor’s conduct “was not so unforeseeable as to make it unfair to charge the government with responsibility.” Id. at 171 (internal quotation marks omitted).

B. The Rule for Intentional Torts

Though the foregoing discussion is, no doubt, more academic than may seem necessary, an understanding of the competing rationales for the doctrine of re-spondeat superior is at least helpful, if not necessary, in determining the contours of the rule to be applied to the intentional torts of employees. As noted above, an employer’s liability is limited only to those employee actions committed in the scope of employment. The central difficulty in applying the rule of respondeat superior focuses on this concept, especially when the tort in question was intentional (as opposed to merely the result of negligence). Thus, the question inevitably arises: What does “scope of employment” mean?

Judge Friendly applied the standard of foreseeability as the benchmark for scope of employment. He discussed foreseeability in the following manner:

Here it was foreseeable that crewmem-bers crossing the drydock might do damage, negligently or even intentionally, such as pushing a Bushey employee or kicking property into the water. Moreover, the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that Lane’s precise action was not to be foreseen.

Bushey, 398 F.2d at 172.

The most prominent alternative to the foreseeability standard is the principle that an action is only within the scope of employment when the employee intends to further the employer’s business or advance the employer’s goal. Prosser and Keeton state that “in general, ... the master is held liable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master’s business.” Prosser and Keeton at 505. In explaining this principle, they offer the following example of the rule in action:

Thus a railway ticket agent who assaults, arrests or slanders a passenger, in the belief that he has been given a counterfeit bill for a ticket, is within the scope of employment, although the employer has not authorized such conduct, or has even expressly prohibited it. But if he acts from purely personal motives, because of a quarrel over his wife which is in no way connected with the employer’s interests, he is considered in the ordinary case to have departed from his employment, and the master is not liable.

Id. at 506.

Landes and Posner agree that this is the appropriate rule. They state that

in the case of an intentional tort the court is likely to insist in addition that the employee in committing the tort have been trying, however misguidedly, to advance the employer’s goals, as where the employee assaults a debtor of the employer in an effort to collect the debt. If the employee is actuated by purely personal motives, the employer’s practical ability to prevent the tort will be slight. The employer should be able to ensure that the employee not only use due care but also avoid overzealous pursuit of the employer’s goals, but it is much harder for the employer to screen and monitor employees for purely personal attitudes.

Landes and Posner at 208-09. This rule differs significantly than the one proffered by Judge Friendly in that it depends on the employee’s motivation in acting, not on whether his or her action is foreseeable.

As the preceding discussion demonstrates, how one defines the scope of employment is the crucial inquiry. And while the opinions of the likes of Deans Prosser and Keeton and Judges Friendly and Posner on this issue are illuminating, we must ultimately turn to our precedent to define the standard to be applied in Kentucky.

In Frederick v. Collins, 378 S.W.2d 617 (Ky.1964), an employee of a neighborhood grocery shot and killed a frequent patron of the store who disguised his voice and said “Stick’em up; this is a hold up.” The employee turned around, hit the patron in the face with a gun, and shot him without realizing who it was. The employee was the storeowner’s son. The owner testified that he did not know his son had a gun and that he had frequently instructed all of his employees, including his son, never to resist a holdup. Id. at 618. The question before the Court was whether the owner could be held vicariously liable for the shooting, an intentional tort. The Court noted that Prosser had recognized “that even intentional torts may be so reasonably connected with the employment as to fall within the scope of it. The present tendency is to extend the employer’s responsibility for such conduct.” Id. (internal citation omitted). The Court then favorably cited § 245 of the Second Restatement of Agency, which states that the master is liable “for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.”

In finding that the employee was acting within the scope of employment, the Court placed great weight on his motive for the shooting. The Court stated:

In the case at bar Robert was admittedly the appellant’s employee; moreover, he was in sole charge of the store at the time of the incident. Without doubt Robert Frederick was under obligation generally to manage and protect the appellant’s store and its contents. There is no evidence that Robert sought to serve any personal purpose in his activity toward Collins. In fact, Robert asserted that he did not know whom he was shooting — that he acted in self-defense. He actually testified that he would have shot his father or brother under the same circumstances. So it is obvious that this case is not governed by any of the authorities which deny liability because the employee has acted in furtherance of a personal motive as distinguished from a motive connected with the employer’s business.

Frederick, 878 S.W.2d at 619 (emphasis added).

Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), also contains a detailed discussion of responde-at superior. In Wood, after a car entered the highway, a bus driver for Southeastern Greyhound crowded the car and forced it off the road. After the car regained the highway, it continued traveling, eventually stopping in Williamstown. When the car stopped, the bus driver also stopped, leaving the bus in the middle of the road, and proceeded to assault the driver of the car. The Court concluded that the bus driver was not acting within the scope of employment. The Court explained:

It is clear the rule of respondeat superi- or cannot be invoked and the employer be held liable where the action of the employee was motivated by conceptions of personal wrong or the invasion of his private rights. And though there is some conflict of opinion, the trend of the decisions is to exonerate the principal where the act was not for the protection of his property or interests, but was to vindicate public justice or to redress an offense against society, or to punish an offender for something already done, although the wrongful act had its origin in some agency relation.

Id. at 82 (citations omitted, emphasis added).

The Court then discussed other cases and authorities, synthesizing the rule in the following manner:

And now, in collating these authorities and principles, it seems clear to us that in order to hold an employer responsible to a third person for the tortious act of an employee of the former, such act must have been committed while the employee was engaged in furthering his employer’s business or interests, without any deviation by the employee to a pursuit of his own business or interest, and there must have been a general similarity between the tortious act committed and the usual, ordinary, everyday acts commonly pursued by the employee in prosecuting the regular routine of his employment.

Id. at 83. The Court further noted that

we see no marked, or even faint, resemblance between the bus driver’s fisticuffs, on the one hand, and the bus driver’s customary duties of starting, guiding, stopping and safely operating appellee’s busses, on the other hand, especially so in view of the fact that this assaulted appellant was not related to the bus driver’s employer as a passenger, customer, employee or otherwise. This bus driver’s attack and his usual bus driving employment bore no more similarity to each other than a plug horse bears to ‘Man O’ War,’ according to our perspective of these two separate activities.

Id.

In Osborne v. Payne, 31 S.W.3d 911 (Ky.2000), a former husband sought to impose vicarious liability against a Roman Catholic Diocese for a priest’s allegedly outrageous actions associated with an affair with his wife. This Court held that the Diocese was not liable under responde-at superior and explained:

The critical analysis is whether the employee or agent was acting within the scope of his employment at the time of his tortious act. Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (Ky.1946), provides that for it to be within the scope of its employment, the conduct must be of the same general nature as that authorized or incidental to the conduct authorized. A principal is not liable under the doctrine of respondeat superior unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the operator’s employment. Hennis v. B.F. Goodrich Co., Inc., Ky., 349 S.W.2d 680 (1961). In this situation, it is the abuse by the priest of his position that exceeds the scope of his employment. It is beyond question that Osborne was not advancing any cause of the diocese or engaging in behavior appropriate to the normal scope of his employment.

Id. at 915.

In discussing statutory civil rights actions relying on a theory of vicarious liability, this Court recently noted:

Vicarious liability, sometimes referred to as the doctrine of respondeat superior, is not predicated upon a tortious act of the employer but upon the imputation to the employer of a tortious act of the employee by considerations of public policy and the necessity for holding a responsible person Hable for the acts done by others in the prosecution of his business, as well as for placing on employers an incentive to hire only careful employees. Ordinarily, an employer is not vicariously liable for an intentional tort of an employee not actuated by a purpose to serve the employer but motivated, as here, solely by a desire to satisfy the employee’s own sexual prochvities.

American Gen. Life & Accident Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky.2002) (internal citation and quotation marks omitted, emphasis added).

Despite the fact that this Court has cited to varying authorities to explain its holdings in the area of intentional torts, we have, with few exceptions, focused on the motive of the employee in determining whether he or she was acting within the scope of employment. Although in certain cases we have paid Hp service to the principle of the foreseeability of the misconduct that was advanced by Judge Friendly in Bushey, our substantive focus has remained on the servant’s purpose or motive. It is quite possible that had Bushey been decided under Kentucky law, the employer would not have been held liable for the drunken sailor’s conduct because the drunken sailor was “not actuated by a purpose to serve the employer.” Hall, 74 S.W.3d at 692. It is clear, however, that Kentucky law has rejected Judge Friendly’s approach, which focuses exclusively on foreseeability and refuses to consider motive.

Instead, Kentucky’s approach is precisely the standard advanced by Prosser and Keeton when they explained that “in general, ... the master is held Hable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master’s business.” Prosser and Keeton at 505. Thus, if the servant “acts from purely personal motives ... which [are] in no way connected with the employer’s interests, he is considered in the ordinary case to have departed from his employment, and the master is not Hable.” Id. at 506. This sound approach also conforms to the economic theory of vicarious liability, discussed above, because when the employee acts for solely personal reasons, the employer’s ability to prevent the tort is limited. See Landes and Posner at 208-09.

In fact, Kentucky’s emphasis on employee motive has been embraced in the Tentative Draft of the Third Restatement of Agency. The Tentative Draft rejects formulations based on assessments of fore-seeabihty and instead states that an “employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.” Restatement (Third) of Agency § 7.07 (Tentative Draft No. 5, 2004). In explaining this change from the Second Restatement of Agency, the commentators state that “[although formulations that focus on an employee’s intention may be difficult to apply in some cases, formulations based on assessments of ‘forseeabiHty’ are potentially confusing and may generate outcomes that are less predictable than intent-based formulations.” Id. § 7.07 cmt. b.

A review of Wood, Frederick and Osborne makes clear that each of those cases focused on the servant’s purpose for the intentional act that was perpetrated. Both the bus driver in Wood and the priest in Osborne committed acts based on purely personal motives, which were in no way connected with the employer’s interests. On the other hand, in Frederick, the employee’s misguided decision to shoot his supposed assailant was based solely on a business motive — to protect the store— and liability was proper even though the employer had forbidden such an action.

The Court of Appeals in this case relied on Citizens Finance Co. v. Walton, 239 S.W.2d 77 (Ky.1951), to support its holding that Blair, Jr. was not acting within the scope of employment when he confronted Patterson. In Walton, a finance company sent a debt collector to collect money from the plaintiff, and the employee struck and twisted the hand of the plaintiff. The Court concluded that the employee was not acting within the scope of employment. The Court ultimately rested its holding on foreseeability, explaining that “[t]he duty imposed upon Hensley to collect money did not carry with it as a reasonably contemplated act, the authority to assault Mrs. Walton.” Id. at 78. This holding is consistent with an example noted in the Second Restatement of Agency, which states:

Thus, one who is sent to collect a bill does not normally make the employer responsible if he seizes money from the debtor, since this would be an unusual and unexpectable proceeding of a bill collector. On the other hand, one who is sent to recapture property is likely to come into contact with a possessor unwilling to surrender it, and persons sent to recapture goods are frequently the kind who would be not unlikely to attempt force.

Restatement (Second) of Agency § 245 cmt. a (1958).

Simply put, Walton is an aberration in our case law, and no Kentucky court has relied on it, at least any published decision, to find vicarious liability. In fact, in Bing-ham v. Commercial Credit Corporation, 330 S.W.2d 427 (Ky.1959), the Court, when faced with an identical fact situation, declined to follow Walton. Instead, the Court noted that there were divergent views on the issue among the states, and focused on another factor that survives today under all theories of determining respondeat superior liability, namely the effect of the criminal nature of the employee’s activity. The Bingham Court cited the Second Restatement of Agency for the proposition that whether the servant engaged in “a crime, especially if the crime is of some magnitude,” should be considered in determining whether or not the act is within the scope of employment. Id. at 428 (quoting Restatement (Second) of Agency § 231(a)).

The consideration of whether the conduct was criminal conduct also survives under the Tentative Draft of the Third Restatement of Agency. The Draft states:

In determining whether an employee’s tortious conduct is within the scope of employment, the nature of the tort is relevant, as is whether the conduct also constitutes a criminal act. An employee’s intentionally criminal conduct may indicate a departure from conduct within the scope of employment, not a single escalation.

Restatement (Third) of Agency § 7.07 cmt. c (Tentative Draft No. 5, 2004). Prosser and Keeton also note that “[wjhere the conduct of the servant is unprovoked, highly unusual, and quite outrageous, there has been something of a tendency to find that this in itself is sufficient to indicate that the motive was a purely personal one, but it seems clear that this cannot hold true in all cases.” Prosser and Kee-ton at 506 (footnotes omitted).

C. Application of the Rule

In order to evaluate the appropriateness of respondeat superior liability in this matter, we must discuss the applicable facts at length. Given the jury’s verdict for Patterson, we are charged as an appellate court with “viewing the evidence from a standpoint most favorable to the prevailing party” since “the verdict of the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony in favor of the prevailing party....” Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 385 (Ky.1985). The following facts became apparent from an extensive review of the testimony offered at trial.

Tommy Blair, Sr. (“Blair, Sr.”) was the sole owner and president of Courtesy. He had been in the automobile business for 35 years and had operated Courtesy for 22 years. His son, Blair, Jr., had worked for Courtesy for 22 years and was at the time of the incident the service manager for Courtesy. Blair, Jr., with his father’s permission, represented himself as Vice President of Courtesy. Blair, Jr. was a management employee and supervised employees within the service department.

On October 2, 1995, after attempting to work with Patterson to resolve the payment issue, Blair, Sr. became convinced that Patterson would not voluntarily give up the Jimmy. Shortly thereafter, two Courtesy employees, Michael Moore and Chris Wathen, tried to repossess the truck at Patterson’s home, but they were unsuccessful because the key they had made did not work. Moore testified that Patterson confronted them during this attempted repossession and threatened to kill them. Moore informed Blair, Jr. that he thought Patterson was crazy and that he would not go back to attempt to retrieve the Jimmy. Blair, Sr. testified that Courtesy had several employees out trying to recover the truck from Patterson and that he knew his son was among those employees. In addition to the incident involving Moore, Wathen, and Patterson, there had been several other attempts to locate and retrieve the truck.

In explaining his decision to find Patterson on October 4th, 1995, Blair, Jr. testified that the purpose of his confrontation with Patterson was to retrieve “our property” and repossess the vehicle for Courtesy. Chris Wathen accompanied Blair, Jr. to confront Patterson. Blair, Jr. also testified that he carried a gun with him anytime he was outside the office and that he made no attempt to hide the gun.

When Blair, Jr. went to repossess the truck, Blair, Sr. knew that: (i) his son was looking for the truck; (ii) Patterson would not voluntarily relinquish the truck; and (iii) Patterson had threatened other Courtesy employees during a failed attempt to repossess the truck. Blair, Sr. testified that Courtesy did not ordinarily finance vehicle loans, but he also testified that Courtesy sometimes had to repossess vehicles, noting only that it was a “rare occurrence.” In fact, Blair, Jr. testified that another long-time employee, Mr. Dee, had handled repossessions for Courtesy up until the time of his death in June 1995, just a few months before the incident in this case. Thus, the record demonstrates that a reasonable juror could have concluded that Courtesy had previously repossessed cars. Furthermore, Blair, Sr.’s wealth of experience in the automobile business certainly made him aware of what can occur during automobile repossession.

Clearly, in confronting Patterson and shooting out the truck’s tires, Blair, Jr. was acting to further the business interests of Courtesy. At the very least, his conduct was at least incidental to the conduct that was authorized by Courtesy. Here, just as in Frederick, Blair, Jr. was acting to protect his employer’s property. In fact, Blair, Jr.’s testimony explicitly confirmed this motive. And perhaps most importantly, there is no evidence that he sought to serve any personal purpose by his actions. Quite simply, he engaged in the act to further his employer’s business interests. This is clearly distinguishable from the acts of the employees in Wood and Osborne. And finally, although the act was criminal, it was- not so outrageous to indicate that the motive was a personal one. Therefore, the jury’s finding that Blair, Jr. acted within the scope of employment, thereby imposing vicarious liability on Courtesy, is supported by the evidence and the law of this Commonwealth.

IV. CONCLUSION

The decision of the Court of Appeals on the issue of vicarious liability is reversed, and the case remanded for proceedings consistent with this opinion.

All concur.

GRAVES, J., not sitting.

      . Discretionary review was not sought on this ruling of the Court of Appeals and is not before this Court.

      . It should be noted that our discussion is limited to an employer's liability based on the doctrine of respondeat superior. There are other theories of liability based on general negligence principles. See, e.g., O’Roark v. Gergley, 497 S.W.2d 931 (Ky.1973) (duty to stop employee from assaulting patron when employer sees employee committing the assault); Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky.App.1998) (negligent hiring and retention).

      . As the Restatement demonstrates, even if we were to focus on foreseeability, Blair, Jr.'s actions to repossess property were foreseeable if he was sent to repossess the vehicle.

      . Blair, Sr. did testify that, since the death of Mr. Dee, on the rare occasions when Courtesy needs to repossess vehicles, it uses an independent contractor.


author: Opinion of the Court by Justice SCOTT.

text:
    Felicia Donise HEARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-1031-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      V. Gene Lewter, Fayette Co. Legal Aid Inc., Lexington, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Perry T. Ryan, Criminal Appellate Division, Courtney J. Hightower, Criminal Appellate Division, Assistant Attorneys General, Frankfort, Counsel for Appellee.
   Opinion of the Court by Justice SCOTT.

This case comes to us on discretionary review of the Court of Appeals’ opinion affirming the judgment of the Fayette Circuit Court, which sentenced Appellant to one year imprisonment, probated for five, on charges of possession of cocaine, marijuana and drug paraphernalia. We granted review to determine whether the trial court erred by denying Appellant’s motion to require the Commonwealth to reveal the identity of the confidential informant. After reviewing the record, we remand this case to the trial court for a new hearing consistent with this opinion.

I. Facts

Appellant was indicted by the Fayette County Grand Jury, along with co-defendant, Jermaine Christian, for the felony offense of Trafficking in a Controlled Substance First Degree, Possession of Marijuana and Possession of Drug Paraphernalia. A joint trial was held on September 26, 2002. Appellant was found guilty only of possession, while Christian was found guilty of trafficking and being a persistent felony offender in the second degree.

All charges arose from incidents which occurred on the night of January 8, 2000, after a confidential informant purchased cocaine from a man identified as “Big Man” at Appellant’s address. Police believed “Big Man” to be Appellant’s boyfriend, Jermaine Christian. Based on this information, within an hour of the controlled purchase, police officers obtained and executed a search warrant. When the police entered Appellant’s apartment, Appellant was found in the kitchen while Christian and two others were in the living room playing a play station game. Officers seized numerous items from the apartment including several grams of crack cocaine found on a dresser located in a bedroom, two baggies of marijuana, hand scales, digital scales, razor blades, and two cell phones. Detective Smoot determined Christian and Appellant lived at the residence based on the addresses listed on their drivers’ licenses.

All the charges against Appellant and Christian were based on items and information gathered during the execution of the search warrant, not from any evidence obtained by way of the undercover drug purchase.

At Appellant’s hearing on her motion to require the Commonwealth to reveal the identity of the confidential informant, the Commonwealth acknowledged the affidavit for the search warrant showed that the sale of cocaine was made by “Big Man,” from Appellant’s address, but said they had no intention of referring to that incident during the trial; the charge tried would be Possession with Intent to Sell, not the actual trafficking incident. Appellant argued the informant’s testimony would still be relevant to show the cocaine found was not in her possession. In his ruling, the judge stated he had the same issue presented a month before and had overruled it; to be consistent, he would (and did) make the same ruling regarding Appellant’s motion.

Appellant renewed her motion at the beginning of trial and later to rebut Christian’s attempt to prove he did not reside at Appellant’s apartment, i.e. that the cocaine seized there did not belong to him. All motions were denied.

II. The Confidential Informant’s Identity

Kentucky Rule of Evidence 508(a) gives the Commonwealth a privilege to refuse to disclose the identity of confidential informants. Exceptions to the general rule of privilege are set forth in KRE 508(c). Such exceptions include (1) voluntary disclosure by the holder of the privilege, (2) the informer is a witness for the state, and/or (3) the informer’s testimony is relevant to the issues of the case.

Appellant is arguing an exception to the KRE 508 privilege based on her contention the informant’s testimony is highly relevant in proving her innocence to the charge of Possession with Intent to Sell.

KRE 508 reflects the decision of the United States Supreme Court in Rovi-aro v. United, States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which indicates that a proper balance regarding nondisclosure must depend on the particular circumstances of each case, taking into consideration the crimes charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors. Taylor v. Commonwealth, 987 S.W.2d 302, 304 (Ky.1998). “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 628.

Yet, embedded within KRE 508(c)(2) is the following language: “the court shall give the public entity an opportunity to make an in camera showing in support of the claim of privilege.” (Emphasis added).

Thus, by the very words of the rule as well as the caselaw it supports, the court is to allow for an “in camera” showing, i.e. hearing, of the parties’ claims regarding the privilege. In this case, the court simply overruled Appellant’s motions without a formal hearing and finding. Making a blanket ruling for the sole purpose of consistency with prior case rulings does not allow either the Appellant, or the Commonwealth, the proper opportunity to prove their “case” regarding this issue of informant disclosure or privilege. Therefore, we find the trial court abused its discretion in not conducting an “in camera” hearing regarding the motion.

Our caselaw provides that a defendant who requests disclosure of the identity of an informant must first make a proper showing that an exception applies. See Schooley v. Commonwealth, 627 S.W.2d 576 (Ky.1982). Once Appellant has made such a showing, the burden would shift to the Commonwealth to overcome this inference. See United States v. McManus, 560 F.2d 747 (6th Cir.1977). Factors a court would normally consider include whether the informant’s life would be in danger were his identity revealed or if he is needed for other undercover work, etc.

We believe a proper determination cannot be made regarding the KRE 508 privilege without the trial court conducting an “in camera” hearing. Accordingly, we remand this case to the trial court for the limited purpose of holding a KRE 508 “in camera” hearing consistent with this opinion. Appellant must establish that it “appears that an informer may be able to give relevant testimony” and once she has successfully met this burden, which we believe the circumstances of this case will allow (as she and her co-defendant are both arguing the cocaine was in the constructive possession of the other), the burden would then shift to the Commonwealth to establish why the informant’s identity should remain concealed. Only after such a hearing could the court’s denial of Appellant’s motion be proper and we then could properly review this matter.

Thus, we now abate this appeal pending the findings and conclusions from the KRE 508 hearing. The hearing order shall issue within 90 days from the entry of this Opinion. If the trial court rules the informant’s identity shall be revealed, it shall enter an order granting a new trial pursuant to RCr 10.02 from which the Appellee may appeal. If the trial court determines Appellant could not successfully establish an exception to the KRE 508 privilege, then it shall make findings of fact in support of this conclusion in its order, which shall then be appealable by the Appellant herein. Any appeal taken by either party from an adverse decision of the Fayette Circuit Court shall be consolidated with this appeal. Further, briefing on any subsequent appeal shall be limited to ten pages by each side and, like the hearing on remand, shall be limited to only those issues addressed in this Opinion. Finally, the Fayette Circuit Court shall notify this Court of its final disposition of this matter within ten (10) days of the entry of its final order.

All concur.