author: Chief Justice MINTON. VENTERS, J.,

text:
    KENTUCKY PUBLIC SERVICE COMMISSION, Appellant, v. COMMONWEALTH of Kentucky, ex rel. Jack CONWAY; and Duke Energy Kentucky, Inc. (f/k/a The Union Light, Heat, and Power Company), Appellees. and Duke Energy Kentucky, Inc. (f/k/a The Union Light, Heat, and Power Company), Appellant, v. Commonwealth of Kentucky, ex rel. Jack Conway; and Kentucky Public Service Commission, Appellees.
    Nos. 2009-SC-000134-DG, 2009-SC-000150-DG.
    Supreme Court of Kentucky.
    Oct. 21, 2010.
    Anita Brooks Mitchell, David Shawn Samford, Gerald Edward Wuetcher, Helen C. Helton, Kentucky Public Service Commission, Frankfort, KY, Counsel for Appellant/Appellee, Kentucky Public Service Commission.

      Jason Patrick Renzelmann, M. Holliday Hopkins, Sheryl G. Snyder, Frost, Brown, Todd, LLC, Louisville, KY, Counsel for Appellant/Appellee, Duke Energy Kentucky, Inc. (f/k/a The Union Light, Heat, and Power Company).
    Dennis Gordon Howard, II, Assistant Attorney General, Lawrence Wilson Cook, Office of Rate Intervention, Office of the Attorney General, Frankfort, KY, Counsel for Appellee Commonwealth of Kentucky, ex rel. Jack Conway.
    John Newton Hughes, Frankfort, KY, Mark R. Hutchinson, Wilson, Hutchinson & Poteat, Owensboro, KY, Counsel for Amicus Curiae, Atmos Energy Corporation.
    James M. Miller, Sullivan, Mountjoy, Stainback & Miller, PSC, Owensboro, KY, Counsel for Amicus Curiae, Big Rivers Electric Corporation.
    Richard S. Taylor, Frankfort, KY, Stephen B. Seiple, Columbus, OH, Counsel for Amicus Curiae, Columbia Gas of Kentucky, Inc.
    Robert M. Watt, III, Stoll, Keenon, Ogden PLLC, Lexington, KY, Counsel for Amicus Curiae, Delta Natural Gas Company, Inc.
    David Arthur Smart, General Counsel, East Kentucky Power Cooperative, Winchester, KY, Roger R. Cowden, Lexington, KY, Counsel for Amicus Curiae, East Kentucky Power Cooperative.
    Clayton Otis Oswald, Taylor, Keller, Dunaway & Tooms, PLLC, London, KY, Counsel for Amicus Curiae, Jackson Energy Cooperative Corporation.
    Frank N. King, Jr., Dorsey, King, Gray, Norment & Hopgood, Henderson, KY, Counsel for Amicus Curiae, Kenergy Corp.
    Daniel T. Yates, Governmental Affairs and Member Counsel, Kentucky Association of Electric Cooperatives, Inc., Louisville, KY, Counsel for Amicus Curiae, Kentucky Association of Electric Cooperatives, Inc.
    Mark Richard Overstreet, Stites & Har-bison, PLLC, Frankfort, KY, Counsel for Amicus Curiae, Kentucky Power Company.
    Damon R. Talley, Hodgenville, KY, Counsel for Amicus Curiae, Kentucky Rural Water Association, Inc.
    Allyson Kay Sturgeon, E. on U.S., LLC, Deborah Tully Eversole, Kendrick Riggs, William Duncan Crosby, III, Stoll, Keen-on, Ogden, PLLC, Louisville, KY, Counsel for Amicus Curiae, Kentucky Utilities Company and Louisville Gas and Electric Company.
    Robert M. Spragens, Jr., Spragens & Higdon, PSC, Lebanon, KY, Counsel for Amicus Curiae, Taylor County Rural Electric Cooperative Corporation.
   Opinion of the Court by

Chief Justice MINTON.

We granted discretionary review of these cases to decide whether the Kentucky Public Service Commission (PSC) had the plenary authority to allow a utility to adjust its rates by imposing a surcharge or rider aimed at recovering costs associated with the utility’s program to accelerate improvement of its gas distribution mains. We hold that so long as the rates established by the utility were fair, just, and reasonable, the PSC has broad ratemaking power to allow recovery of such costs outside the parameters of a general rate ease and even in the absence of a statute specifically authorizing recovery of such costs.

I. PROCEEDINGS IN THE COURT OF APPEALS AND TRIAL COURT.

The Court of Appeals held that the PSC lacked this plenary authority absent a statute specifically allowing the recovery of such costs outside a general rate case. To that extent, the Court of Appeals affirmed trial court orders invalidating the rider as it existed before the enactment of Kentucky Revised Statutes (KRS) 278.509 in 2005. But the Court of Appeals reversed trial court orders invalidating the rider after the enactment of KRS 278.509 because the Court of Appeals disagreed with the trial court’s ruling that KRS 278.509 was unconstitutional. By our holding today, we disagree with the Court of Appeals’ view that the legitimacy of the rider depended upon the enactment of a specific statute authorizing recovery of that particular cost outside a general rate case. Accordingly, we reverse, in part, affirm, in part, and remand to the trial court with directions to reinstate the PSC orders allowing for the rider or surcharge.

II. FACTS.

As stated by the Court of Appeals, the instant controversy:

involves five consolidated appeals by the Attorney General from the Public Service Commission’s (PSC) orders over a five-year period approving and implementing a portion of Duke Energy Kentucky, Inc.’s (fik/a the Union Light, Heat and Power Company (Duke)) rate schedule known as the Accelerated Main Replacement Program (AMRP) Rider.

Neither party takes issue with the Court of Appeals’ recitation of the relevant facts, which stated as follows:

In 2001, Duke developed a program to improve its gas distribution mains. The company owned approximately 1000 miles of mains, including over 150 miles of cast iron and bare steel mains dating back to 1887 and 1907. Because cast iron and bare steel mains leak more frequently than those constructed from coated steel or polyethylene, Duke at first intended to replace the aging mains over a fifty-year period. However, because of the age of the mains to be replaced, Duke implemented the AMRP to replace all mains within ten years.
In May 2001, confronted with increases in its capital expenditures, Duke filed an application with the Commission [PSC] pursuant to KRS 278.180 for an adjustment of its general rates and, in the same filing, sought approval to employ the AMRP Rider to streamline recovery of the costs associated with the main replacement program. The Attorney General intervened in the 2001 rate case and opposed the AMRP Rider contending that the PSC had no authority to permit a surcharge to recover costs incurred after a general rate case without conducting a new general rate case. It asserted that single-issue ratemaking is not permitted under the statutory scheme unless the General Assembly specifically permits the procedure.
The PSC concluded that its authority was derived from its general powers conferred by KRS 278.080 and 278.040 to establish “fair, just and reasonable” rates and KRS 278.290, to revaluate new construction, extensions, and additions to utility property. On January 81, 2002, the PSC authorized Duke to implement the AMRP Rider for a three-year period subject to annual review of new AMRP costs during that period. Under the surcharge formula, Duke was permitted to automatically recover its return on investment of the preceding year’s increase in plant investment incurred under the replacement program for three years following the completion of the 2001 general rate case. After the expiration of three years, if Duke intended to continue the program, it was required to file a new general rate application. The Attorney General appealed.
In the years that followed, the PSC approved each of Duke’s annual applications for adjustments to the AMRP Rider and the Attorney General appealed each ruling to the Franklin Circuit Court. The final PSC order appealed was entered on December 22, 2005. As directed by the PSC’s 2001 order, on February 25, 2005, Duke filed its next general rate case and sought approval of the continuation of the AMRP Rider. Again, the Attorney General intervened.
While the Attorney General’s appeals from the prior orders and Duke’s 2005 rate case were pending, the Kentucky General Assembly passed KRS 278.509. As it did before, the PSC relied on its plenary rate-making powers but also relied on what it perceived as its specific authority conferred by the newly enacted KRS 278.509 and approved the rider. The Attorney General appealed.
The Franklin Circuit Court consolidated the Attorney General’s appeals and, after the parties filed cross-motions for summary judgment, vacated and remanded the orders of the PSC pertaining to the AMRP rider. It held that KRS 278.509 was unconstitutional in violation of the title and single-subject provisions of Section 51 of the Kentucky Constitution, and that the PSC’s authority under KRS 278.030 and 278.040 did not permit the PSC to perform an interim review on a single cost absent specific statutory authority. The court concluded that the PSC’s authority to consider any expense was limited to a general rate filing. Duke appealed.

III. ANALYSIS.

This appeal presents questions of statutory interpretation, so we review de novo the lower courts’ determinations about the scope of the PSC’s authority.

As noted by the Court of Appeals, a party challenging a PSC action in court bears the burden of proving that the PSC’s action is unreasonable or unlawful under KRS 278.430. And, as further noted by the Court of Appeals, the PSC is a “creature of statute”; and, thus, the lawfulness of its action depends on whether the PSC’s action exceeded its statutory authority. Differing with the Court of Appeals, we conclude that the PSC’s ratemaking actions were within its statutory ratemaking authority, which we read somewhat more broadly than does the Court of Appeals.

The broad role of the PSC in regulating and investigating utilities to ensure that utilities comply with state law is set forth in KRS 278.040, which provides, in pertinent part:

(1) The Public Service Commission shall regulate utilities and enforce the provisions of this chapter. ...
(2) The jurisdiction of the commission shall extend to all utilities in this state. The commission shall have exclusive jurisdiction over the regulation of rates and service of utilities, but with that exception nothing in this chapter is intended to limit or restrict the police jurisdiction, contract rights or powers of cities or political subdivisions.
(3) The commission may adopt, in keeping with KRS Chapter 13A, reasonable regulations to implement the provisions of KRS Chapter 278 and investigate the methods and practices of utilities to require them to conform to the laws of this state, and to all reasonable rules, regulations and orders of the commission not contrary to law.

Because utilities are allowed to charge consumers only “fair, just, and reasonable rates” under KRS 278.030(1), the PSC must ensure that utility rates are fair, just, and reasonable to discharge its duty under KRS 278.040 to ensure that utilities comply with state law.

As a key part of its duty to ensure that utility rates charged comply with state law, the PSC must approve or deny any requested changes in a utility’s rate. KRS 278.180 governs how rate changes must be made. The statute requires that utilities generally give the PSC thirty days’ notice of any proposed rate change and that the PSC order rate changes only after giving the utility the same amount of notice. In other words, KRS 278.180 does not require any particular process to allow a utility to change its rates other than complying with notice requirements.

KRS 278.190 covers the subject of “[procedure when new schedule of rates filed.” Apparently the Court of Appeals construed this statute as requiring a certain process (a general rate case) in most cases in which some sort of new rate is requested or filed. Some of the factors that may be considered by the PSC in ratemaking within general rate cases or otherwise, specifically those regarding valuation of utility property, are established in KRS 278.290. But the plain language of KRS 278.190 does not actually require that the PSC proceed with a general rate case or other particular process every time some new rate or change in rates is requested. To the contrary, the statute simply provides that upon filing of a schedule of new rates, the PSC “may” conduct a “hearing concerning the reasonableness of the new rates” on its own motion or if a complaint is filed by any person challenging the rates as unreasonable or otherwise contrary to law under KRS 278.260. If a complaint is filed by a person challenging rates as unreasonable or contrary to law, other provisions of KRS Chapter 278, KRS 278.260, KRS 278.270 and KRS 278.280, authorize the PSC to conduct investigations and hearings and enter appropriate orders concerning rates or services. Hearings are not necessarily required to resolve the complaint. And these statutes do not mandate that a complaint compels a general rate case under KRS 278.190.

The Court of Appeals stated in its opinion that “KRS 278.080 and KRS 278.040 expressly grant the PSC plenary ratemak-ing authority.” Yet, it answered the question of whether KRS 278.030 and KRS 278.040 gave the PSC the authority to approve the AMRP Rider outside the context of a general rate case in the negative. Apparently the Court of Appeals read KRS 278.190 as requiring the filing of a general rate case for any changes in rate because its opinion stated that: “KRS 278.190 establishes the procedure to be followed when a rate change is sought, referred to as a general rate case.” On the other hand, latter portions of its opinion suggest that this requirement might not apply where the issue was not “amenable” to general rate proceedings. But, as noted previously, the plain language of KRS 278.190 does not necessarily require the filing of a general rate case any time a utility seeks a change in its rates.

Noting the “complex and lengthy procedure” of a general rate case customarily employed when a utility seeks to change its rates under KRS 278.190, the Court of Appeals reviewed case law concerning whether more expedited proceedings involving isolated issues in ratemaking might be allowable without specific statutory authority and determined that cases approving such expedited proceedings for isolated issues involved issues that were “not amenable to review via a general rate increase” and were distinguishable from the instant case because “[t]he present controversy does not involve capital expenditures that are unanticipated, fluctuating, or beyond Duke’s control, or threaten its solvency.” So the Court of Appeals decided that the AMRP surcharge was “amenable to the test-year review concept to be followed in a general rate case, and is a replacement cost to be considered in a general rate increase case.”

The Attorney General similarly argues that the PSC, as a creature of statute, only has those powers that are expressly granted to it by statute or are necessarily implied for it to be able to exercise its enumerated powers and responsibilities.

While the power to approve the AMRP rider at issue may not have been expressly granted by statute before the enactment of KRS 278.509, we, nonetheless, conclude that the PSC has the power to allow such a rider based upon (1) its plenary ratemaking authority derived from KRS 278.030 and KRS 278.040, which essentially require that the PSC act to ensure that rates are “fair, just and reasonable” and (2) the absence of any statutes specifically requiring a particular procedure when determining if rates are fair, just, and reasonable.

Despite the Court of Appeals’ findings that the AMRP was amenable to general rate case proceedings, we find nothing in the statutes that mandates that this rider or the calculation of the actual monetary surcharge could only be approved through a general rate case. Although, undoubtedly, such a rider or surcharge could be approved through a general rate case— and here the AMRP rider was initially approved in this manner — KRS 278.190(1) states simply that the PSC “may” hold a hearing “concerning the reasonableness of the new rates” when a utility files a schedule setting new rates. So the statute does not command such a hearing upon the filing of new rates.

Nor does it require that all possible factors be considered in the hearing. KRS 278.192 states that the Commission may allow a utility to use either a historical 12-month test period or a forward-looking 12 month test period to determine the reason-ability of a general rate increase. Similarly, 807 KAR 5:001 § 10 requires that applications for general adjustment of rates must be supported by either a historical 12-month test period or a forward-looking 12-month test period. But nothing requires that a utility can only recover costs for the previous year, as the Attorney General contends, rather such test periods appear aimed at predicting future costs when determining if proposed rates are fair, just, and reasonable.

Occasionally, the legislature has seen fit to enact a statute concerning a specific ratemaking issue. But the PSC and utilities argue that these statutes actually limit the PSC’s ratemaking powers rather than expand them. They also point to fuel adjustment clauses, which have long been used and have been recognized as valid by courts in other jurisdictions, despite the lack of a specific statute permitting these (although a regulation permitting such fuel adjustment clauses premised on KRS 278.030 exists). They contend that the PSC has implied authority to deal with specific ratemaking issues outside the context of a general rate proceeding unless specifically limited by statute. Their argument is contrary to the Court of Appeals’ view that the PSC’s powers are only those expressly and specifically enumerated by statute or those actions required under “disaster” situations where such measures are required to rescue utilities from the brink of bankruptcy.

We decline to reach the utility’s argument that other statutes dealing with specific ratemaking issues limit rather than expand their power because those specific ratemaking issues are not before us. But we simply find nothing in other statutes in KRS Chapter 278 that would forbid the PSC from allowing a rider or surcharge for the costs at issue here before the enactment of KRS 278.509. In fact, we find nothing in the statutes that would prohibit “single-issue ratemaking” — contrary to the Attorney General’s arguments.

Although the Attorney General contends that the utilities were able to obtain a guaranteed return on their investment or obtained a double recovery of costs, he shows us no evidence of record that such events occurred And we note that the PSC required annual review of the surcharge and, on occasion, modified it. So the facts indicate that the PSC acted to ensure that the rates were fair, just, and reasonable by expedited annual proceedings to review the application of the rider or surcharge.

In sum, we agree with the view that the PSC had the plenary authority to regulate and investigate utilities and to ensure that rates charged are fair, just, and reasonable under KRS 278.030 and KRS 278.040. This authority allowed the PSC to allow the rider and to re-calculate the dollar amount of the surcharge in expedited annual proceedings even before the effective date of KRS 278.509, which expressly clarified (but did not create) the PSC’s authority to allow recovery of the cost of natural gas pipeline replacement not covered by existing rates so long as the rates are fair, just, and reasonable. So we reverse the lower court decisions to the contrary and reinstate the PSC’s orders allowing for the recovery of these costs.

Contrary to the conclusion of the Court of Appeals that the statutes unambiguously denied the authority to allow the AMRP rider and, thus, no deference was owed to the administrative agency’s interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., we find nothing in the statutes disallowing the AMRP rider, although, we similarly find no real ambiguity in the statutes. We conclude that because the statutes generally recognize a duty to establish “fair, just, and reasonable” rates without necessarily requiring a particular procedure to deal with isolated ratemaking issues, the Hope doctrine that “[it is] the result reached rather than the method employed which is controlling” is applicable. Applying this doctrine to the instant case, we conclude that the lower courts erred when disturbing the challenged orders of the PSC.

In summary, since there was no statutory authority forbidding it to do so, the PSC’s plenary powers were sufficient to permit it to approve the AMRP rider even before the enactment of KRS 278.509. KRS 278.509 is, thus, merely a legislative codification and approval of the lawful actions the PSC had already taken as to the AMRP program. So we reverse the portion of the Court of Appeals’ opinion that upheld the trial court’s reversal of PSC orders predating the enactment of KRS 278.509 and affirm on other grounds the portion of the Court of Appeals’ opinion reinstating the PSC orders following the enactment of KRS 278.509.

IV. CONCLUSION.

For the foregoing reasons, the opinion of the Court of Appeals is affirmed, in part, and reversed, in part; and this case is remanded to the Franklin Circuit Court with directions to reinstate the challenged orders of the PSC.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., sitting. ABRAMSON, CUNNINGHAM, NOBLE, and SCOTT, JJ., concur. VENTERS, J., dissents by separate opinion. SCHRODER, J., not sitting.

VENTERS, J.,

Dissenting:

I respectfully dissent. The Court of Appeals correctly determined that prior to the 2005 enactment of KRS 278.509, the PSC had no statutory authority to approve the requested rate increases other than through the general rate-making process established in KRS 278.190. By granting the increased rates so that Appellants could expedite the recovery of certain long-term capital expenditures, the PSC side-stepped its own regulations (807 KAR 5:001 § 10) and the closer public scrutiny inherent in KRS 278.190. That KRS 278.509 was specifically adopted to provide legislative cover for rate changes involved here simply highlights the fact that, without such legislation, the rate changes were not authorized. The Court of Appeals properly struck down the pre-2005 rate increases.

      . KRS 278.509 provides:
      Notwithstanding any other provision of law to the contrary, upon application by a regulated utility, the commission may allow recovery of costs for investment in natural gas pipeline replacement programs which are not recovered in the existing rates of a regulated utility. No recovery shall be allowed unless the costs shall have been deemed by the commission to be fair, just, and reasonable.

      . The terms rider and surcharge are not well-defined under Kentucky law. From our examination of the briefs, it appears to us that the parties may use the term rider to refer to a formula rather than a particular dollar amount used in the ratemaking process to recover costs of the AMRP program and that the parties may use the term surcharge to refer to the particular dollar amount actually imposed on consumers to recover such costs. See also KRS 278.010(12) (defining rate as "any individual or joint fare, toll, charge, rental, or other compensation for service rendered or to be rendered by any utility, and any rule, regulation, practice, act, requirement, or privilege in any way relating to such fare, toll, charge, rental, or other compensation, and any schedule or tariff or part of a schedule or tariff thereof” without further defining such terms as fare, toll, charge, schedule, or tariff.)

      . The Court of Appeals’ recitation of facts also indicates that the trial court granted the PSC and utilities a stay "of any effect the circuit court's order may have on surcharge proceedings other than the AMRP Rider, pending the outcome of this appeal” after the Attorney General issued an opinion stating that "because there was no explicit, direct, or statutory power to authorize such clauses, the PSC had no authority to approve the [fuel adjustment] surcharge.”

      . See Artrip v. Noe, 311 S.W.3d 229, 231 (Ky.2010) ("Statutory interpretation is a question of law and this Court reviews it de novo.”).

      . Emphasis added.

      . KRS 278.180 (Changes in rates, how made) provides that:
      (1) Except as provided in subsection (2) of this section, no change shall be made by any utility in any rate except upon thirty (30) days’ notice to the commission, stating plainly the changes proposed to be made and the time when the changed rates will go into effect. However, the commission may, in its discretion, based upon a showing of good cause in any case, shorten the notice period from thirty (30) days to a period of not less than ■ twenty (20) days.
      The commission may order a rate change only after giving an identical notice to the utility. The commission may order the utility to give notice of its proposed rate increase to that utility's customers in the manner set forth in its regulations.
      (2) The commission, upon application of any utility, may prescribe a less time within which a reduction of rates may be made.
      We note that the PSC states in its brief that KRS 278.180 "is not implicated here.” We believe that the PSC means that there has been no allegation that notice requirements under KRS 278.180 were violated in this case.

      .The Court of Appeals noted the utilities' argument that the trial court failed to consider KRS 289.290(1), and the Court of Appeals stated that this "statute delineates the factors to be considered when fixing utility rates and has been interpreted to afford the PSC broad discretion." Citing National-Southwire Aluminum Co. v. Big Rivers Elec. Corp., 785 S.W.2d 503 (Ky.App.1990).
      KRS 278.290 (Valuation of utility property in connection with rates, service or issuance of securities — Unit Rate Base) states:
      (1) Subject to the provisions of subsection (2) of this section, the commission may ascertain and fix the value of the whole or any part of the property of any utility in so far as the value is material to the exercise of the jurisdiction of the commission, and may make revaluations from time to time and ascertain the value of all new construction, extensions and additions to the property of the utility. In fixing the value of any property under this subsection, the commission shall give due consideration to the history and development of the utility and its property, original cost, cost of reproduction as a going concern, capital structure, and other elements of value recognized by the law of the land for rate-making purposes.
      (2) The commission shall not value or revalue the property of any utility unless the valuation or revaluation is necessary or advisable in order to determine the legality or reasonableness of any rate or service or of the issuance of securities, and then only after an investigation affecting the rate, service or securities has been instituted by the commission upon complaint or application or upon its own motion, and a hearing has been held on reasonable notice.
      (3) In any rate investigation where the utility serves two (2) or more municipalities, the commission may, in computing the rate of return on the property used and useful, take as the base for the computation the valuation of the system as a whole, but may make a differential in the case of an individual municipality in proportion to the increased cost of service, if the utility can show that such a differential should be allowed.

      . KRS 278.190 covers "Procedure when new schedule of rates filed — Suspension of new rate schedule — Burden of Proof — Refunds.” KRS 278.190(1) states: “Whenever any utility files with the commission any schedule stating new rates, the commission may, upon its own motion, or upon complaint as provided in KRS 278.260, and upon reasonable notice, hold a hearing concerning the reasonableness of the new rates.” (Emphasis added.) Subsections (2), (3) and (4) respectively establish that the PSC may suspend the new rate schedule under certain circumstances, that the utility bears the burden of proof to show that increased rates are just and reasonable, and that the PSC may order a utility to make refunds under certain circumstances.

      . KRS 278.260 (Jurisdiction over complaints as to rates or service — Investigations—Hearing) states:
      (1) The commission shall have original jurisdiction over complaints as to rates or service of any utility, and upon a complaint in writing made against any utility by any person that any rate in which the complainant is directly interested is unreasonable or unjustly discriminatory, or that any regulation, measurement, practice or act affecting or relating to the service of the utility or any service in connection therewith is unreasonable, unsafe, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the commission shall proceed, with or without notice, to make such investigation as it deems necessary or convenient. The commission may also make such an investigation on its own motion. No order affecting the rates or service complained of shall be entered by the commission without a formal public hearing.
      (2) The commission shall fix the time and place for each hearing held by it, and shall serve notice thereof upon the utility and the complainant not less than twenty (20) days before the time set for the hearing. The commission may dismiss any complaint without a hearing if, in its opinion, a hearing is not necessary in the public interest or for the protection of substantial rights.
      (3) The complainant and the person complained of shall be entitled to be heard in person or by an attorney and to introduce evidence.

      . KRS 278.270 (Orders by commission as to rates) states:
      Whenever the commission, upon its own motion or upon complaint as provided in KRS 278.260, and after a hearing had upon reasonable notice, finds that any rate is unjust, unreasonable, insufficient, unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the commission shall by order prescribe a just and reasonable rate to be followed in the future.

      . KRS 278.280 (Orders by commission as to service — Extension of service) states:
      (1)Whenever the commission, upon its own motion or upon complaint as provided in KRS 278.260, and after a hearing had upon reasonable notice, finds that the rules, regulations, practices, equipment, appliances, facilities or service of any utility subject to its jurisdiction, or the method of manufacture, distribution, transmission, storage or supply employed by such utility, are unjust, unreasonable, unsafe, improper, inadequate or insufficient, the commission shall determine the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed, and shall fix the same by its order, rule or regulation.
      (2) The commission shall prescribe rules for the performance of any service or the furnishing of any commodity of the character furnished or supplied by the utility, and, on proper demand and tender of rates, the utility shall furnish the commodity or render the service within the time and upon the conditions provided in the rules.
      (3) Any person or group of persons may come before the commission and by petition ask that any utility subject to its jurisdiction be compelled to make any reasonable extension. The commission shall hear and determine the reasonableness of the extension, and sustain or deny the petition in whole or in part.

      . KRS 278.260(2).

      . The Court of Appeals included within the legal analysis portion of its opinion a subheading entitled, “WHETHER KRS 278.030 AND KRS 278.040 CONFERRED AUTHORITY UPON THE PSC TO APPROVE THE AMRP RIDER.” After reviewing other case-law concerning other issues of ratemaking outside general rate cases, the Court of Appeals concluded "that the PSC cannot authorize the imposition of a surcharge for the main replacement program proposed by Duke without specific statutory authorization.”

      . Specifically, the Court of Appeals cited National-Southwire Aluminum Co., 785 S.W.2d at 503, in which the Court of Appeals affirmed a trial court order affirming a PSC order allowing a utility to offer variable rates solely to aluminum smelter customers based on fluctuating aluminum prices. No specific statute allowed the PSC to approve utility rates employing this particular type of variable rate; and, in fact, one statute prohibited utilities from unreasonably treating different types of customers differently. But the Court of Appeals in National-Southwire found the differential treatment of the aluminum smelters reasonable due to various factors. See id. at 514-15.
      The Court of Appeals also cited Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Co., 983 S.W.2d 493 (Ky.1998), as indicating that "[o]ur highest Court has specifically recognized with approval the prevailing view that separate rate proceedings for fuel adjustment expenses are valid.” But because fuel adjustment clauses were not at issue in that case, our statements to the effect that fuel adjustment clauses are generally accepted was dicta. Fuel adjustment clauses are not specifically, explicitly permitted by any statute, although there is a regulation, 807 Kentucky Administrative Regulations (KAR) 5:056, which purports to permit them. It appears that Kentucky appellate courts have never directly addressed the validity of fuel adjustment clauses.

      . In Public Service Commission v. Cities of Southgate and Highland Heights, 268 S.W.2d 19 (Ky.1954), this Court concluded that the PSC's power included not only powers expressly provided by statute but could also encompass powers necessarily implied to take action to meet its statutory duties. Specifically, in that case this Court concluded that the PSC had the implied power to approve or disapprove a utility systems sale, despite the lack of express statutory authority to do so, because of the PSC's general statutory authority under KRS 278.040 to regulate utility service. See id. at 21. We note that Highland Heights did not involve questions of the PSC’s ratemaking authority, unlike the present case.

      .While we recognize that the PSC has discretion in fulfilling its statutory duty of insuring that rates are fair, just, and reasonable, we do not hold that the PSC has unlimited power to do whatever it wants in regards to ratemaking. For example, in South Central Bell Telephone Co. v. Util. Reg. Comm’n, 637 S.W.2d 649 (Ky.1982), we recognized that the PSC (or its predecessor) could not use its plenary ratemaking authority for purposes other than insuring that rates were fair, just, and reasonable; specifically we held that the Commission could not order a rate that was too low to be "fair, just, and reasonable” to penalize a utility for poor service because statutes required separate procedures for dealing with ratemaking issues and dealing with service issues. Id. at 651-54. Although South Central Bell does indicate that the PSC’s ratemaking power "will be strictly construed[,j” see id. at 653, we do not read it as inconsistent with our opinion here, given that the ratemaking challenged in South Central Bell stemmed from an improper purpose inconsistent with the statutory duty to ensure that rates are "fair, just, and reasonable” to utilities as well as customers.

      . In fáct, Duke Energy and the PSC point out that the AMRP rider (a formula) was approved through a general rate case, and that only the particular monetary cosi/sur-charge (not the rate or formula itself) would change from year to year subject to PSC approval (at least for first three years) in expedited proceedings.

      . . See generally 73B C.J.S. Public Utilities § 105 (2010) ("The purpose of using a test year is to establish with a reasonable degree of accuracy revenue and expenses that a public utility will experience during the period when new rates will be in effect.”).

      . See, e.g., KRS 278.183 (allowing surcharge to recover costs associated with compliance with Federal Clean Air Act and other environmental legislation).

      . This Court noted in dicta that approval of other fuel adjustment clauses in expedited proceedings outside general rate cases has been accepted in many other jurisdictions in Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Co., 983 S.W.2d at 498. But this Court was not faced with deciding the validity of a fuel adjustment clause there. More precisely, we determined whether KRS 278.183 (permitting allowance of environmental surcharges to help utilities recoup costs of complying with environmental legislation) was constitutional and could be applied retroactively to allow recoupment of costs incurred before KRS 278.183 was enacted.

      . See 807 KAR 5:056 (regulating fuel adjustment clauses and stating that the statutory authority for the regulation is KRS 278.030(1)). Naturally, a regulation must be authorized by statute to be valid. See Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky.2008) ("an administrative agency cannot by its rules and regulations, amend, alter, enlarge or limit the terms of legislative enactment.”) (internal quotation marks omitted). Because the issue is not directly presented to us in this case, we express no opinion about whether 807 KAR 5:056 is valid.

      . To the extent that the Court of Appeals opinion holds that the PSC may only authorize the recovery of costs without specific statutory authorization only where the facts of the case present a danger such as a utility facing immediate bankruptcy or discontinuance of service, we reject such a view as being contrary to the PSC’s general powers and plenary authority.

      . To the extent that the PSC has established its own policy against "single-issue ratemak-ing,” as suggested by the Attorney General’s brief, it appears that the PSC would have discretion whether to retain or discard such a policy or determine whether it has been violated under the facts of a particular case given its plenary ratemaking authority circumscribed primarily by its duty to ensure that rates are "fair, just and reasonable” and the lack of clear statutory prohibition against "single issue ratemaking.”

      . The Attorney General has not contended that use of the AMRP rider in expedited proceedings actually resulted in higher rates than those that would have resulted if AMRP riders/surcharges were subjected to an annual general rate case process, nor clearly argued that the end result (the actual rate charged to customers) was not fair, just, and reasonable.

      . The PSC has also alleged that it took other protective measures benefiting consumers, such as requiring certificates of need before any mains were replaced and requiring the surcharge to be disclosed as a separate line item on customers' bills. We need not extensively review all protective measures actually or allegedly taken as we conclude that the PSC’s plenary ratemaking authority under KRS 278.030 and KRS 278.040, the lack of statutory prohibition against recovery of these particular costs, and the lack of argument that the end result was unjust and unreasonable lead us to conclude that the lower courts lacked justification to disturb the challenged PSC orders here.

      . 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

      . National-Southwire, 785 S.W.2d at 510, citing Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

      . As we hold the PSC had the authority to approve the AMRP rider even prior to the enactment of KRS 278.509, we need not reach whether the Court of Appeals erred in reversing the trial court’s ruling that KRS 278.509 violated Section 51 of the Kentucky Constitution.


source: Caselaw Access Project

author: Chief Justice MINTON. CUNNINGHAM, J.,

license: Public Domain

text:
    Gary LLOYD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000206-MR.
    Supreme Court of Kentucky.
    Oct. 21, 2010.

      Brandon Neil Jewell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Todd Dryden Ferguson, Assistant Attorneys General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

A circuit court jury convicted Gary Lloyd of both robbery and felony theft for stealing drugs from a drugstore. Lloyd contends that his conviction on both offenses for stealing the same items violates double jeopardy principles. Even though the separate offenses of felony theft and robbery each contains an element the other does not, we agree with Lloyd because the General Assembly has made plain its intent that a person may not be convicted of both robbery and theft by unlawful taking based upon one theft. We reject Lloyd’s other argument that the trial court erred by denying his motion to suppress.

I. FACTUAL AND PROCEDURAL HISTORY.

A man walked into a drugstore, pointed a handgun at a store employee, announced that this was a hold-up, and demanded OxyContin. Another store employee unlocked the drug safe, and the robber took drugs from the safe and put them in a bag. During the robbery, a customer entered the store, observed someone taking items from the safe, walked outside, and called 911. The customer watched the robber flee the store.

Officers heard a description of the vehicle fleeing the robbery as being a small foreign car, possibly a Toyota or Nissan. Officer Glen Taylor was called to assist at a traffic stop made by another officer of a car fitting the description. Officer Taylor later testified that the driver appeared nervous and gave officers consent to search the vehicle. The officers found Gary Lloyd hiding in the trunk and carrying a handgun. The officers also found the stolen drugs in the trunk with Lloyd. One of the drugstore employees identified Lloyd as the robber.

The grand jury indicted Lloyd on one count of first-degree robbery, one count of theft by unlawful taking of property valued over $300 (felony theft), and one count of possession of a handgun by a convicted felon. The trial court severed the handgun charge and denied Lloyd’s motion to suppress evidence. The robbery and theft charges proceeded to trial. A jury found Lloyd guilty of both robbery and felony theft and recommended a sentence of seventeen years’ imprisonment for the robbery conviction and five years’ imprisonment for the theft conviction. These sentences were to be served consecutively for a cumulative sentence of twenty-two years’ imprisonment. The trial court followed the jury’s recommendations. Lloyd then filed this appeal as a matter of right.

II. ANALYSIS.

Lloyd raises two issues on appeal. First, he contends that his right to be free from double jeopardy was violated when he was convicted of both robbery and felony theft because each conviction was based upon the theft of the drugs. Second, he contends that the trial court erred by denying his motion to suppress. We agree with Lloyd’s double jeopardy argument, but we reject his suppression argument.

A. Double Jeopardy Violation.

Section 13 of the Kentucky Constitution provides, in relevant part, that “[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb....” This section of our state Constitution is known as the double jeopardy clause. Lloyd contends that his convictions for both robbery and felony theft violate the constitutional prohibition against double jeopardy. We agree.

In order to determine whether a person may properly be subjected to prosecution for multiple offenses based upon one act, courts use two main guideposts— the Blockburger test and the expressed intent of the legislature. We find in this case that first-degree robbery and felony theft withstand the Blockburger test but that the General Assembly has demonstrated its intent that persons such as Lloyd not be prosecuted for both robbery and theft based upon the same underlying theft.

1. Blockburger.

Nearly eighty years ago, the United States Supreme Court issued its seminal decision in double jeopardy jurisprudence, Blockburger v. United States. In Blockburger, the Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Kentucky uses the Blockburger double jeopardy test, which we have reduced to this question: “is one offense included within another?” To determine whether felony theft is included within first-degree robbery, we must closely examine and compare the elements of those offenses.

Kentucky Revised Statutes (KRS) 514.030 governs theft. At the time of Lloyd’s indictment and trial, subsection one of that statute provided, in relevant part, that a person was guilty of theft by unlawful taking if he or she “unlawfully ... [tjakes or exercises control over movable property of another with intent to deprive him thereof....” Subsection two of KRS 514.030 provided that theft by unlawful taking was a “Class A misdemeanor unless the value of the property is three hundred dollars ($300) or more, in which case it is a Class D felony... .” Lloyd was indicted and convicted of the felony version of theft.

So to commit felony theft by unlawful taking a person must: (1) Unlawfully (2) take or exercise control over movable property of another (3) with the intent to deprive the owner, and (4) the value of the property taken must be at least $300 (now $500).

Robbery in the first degree, for which Lloyd was indicted and convicted, is governed by KRS 515.020, which has not been amended since first enacted in 1974. KRS 515.020(1) provides, in relevant part, that a person commits first-degree robbery when “in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft” and “[i]s armed with a deadly weapon; or ... [u]ses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.”

So to commit first-degree robbery, a person must: (1) in the course of committing a theft (2) use or threaten the immediate use of physical force (3) with intent to accomplish the theft (4) while either (a) being armed with a deadly weapon or (b) using or threatening the immediate use of a dangerous instrument upon a person not a participant in the crime.

One can quickly see similarities between robbery and theft. But robbery contains elements that differ from theft because theft does not require the perpetrator to use or threaten the immediate use of physical force, nor does theft require that the perpetrator either to be armed with a deadly weapon or to use or threaten the use of a dangerous instrument. So first-degree robbery is not included within theft by unlawful taking.

The commentary to KRS 515.020, the first-degree robbery statute, provides that “[t]o be convicted under KRS 515.030, an offender must have intended, with his use or threatened use of physical force, to accomplish a theft. Through this requirement, all of the elements of the crime of theft as set-forth in KRS 514.030 are incorporated into this offense.” In fact, precedent holds that a double jeopardy violation occurs if a person is convicted of both robbery and theft if he steals the same property. Lloyd cites both the commentary to KRS 515.020 and precedent to argue that his convictions for both theft by unlawful taking and robbery violated his right to be free from double jeopardy.

But the commentary and the precedent Lloyd cites pre-date our decision in Terry. In Terry, a defendant contended that several of his convictions, including one conviction for felony theft by unlawful taking, violated his right to be free from double jeopardy. In the course of resolving those double jeopardy claims, we relied upon cases from other jurisdictions to recognize for the first time in Kentucky that a threshold monetary amount in a criminal statute is an element of the offense. We reasoned that in order to avoid a directed verdict on a charge with a threshold monetary amount, the Commonwealth must adduce proof satisfying that monetary amount. So “[i]f the lack of proof on any aspect of an offense would lead to a directed verdict of acquittal, that aspect must be considered an element of the offense for double jeopardy purposes.”

After Terry, we employ a general principle that a “monetary damage threshold is a distinct element” of a criminal offense. In Terry, we applied that general principle to several specific situations, including holding that the then-$300 dollar threshold for felony theft by unlawful taking was an element that distinguished it from first-degree desecration of venerated objects. And our adoption of the monetary damage threshold amount as an element of the crime of theft in Terry appears to be consistent with the general viewpoint expressed by a prominent legal encyclopedia, which provides that “[t]he value of the item stolen, when used to differentiate between a felony and misdemeanor offense, is an essential element of the charged crime.”

The question becomes whether the rationale of Terry requires us to disapprove of the commentary to KRS 515.020 and to overrule precedent holding that a person may not be convicted of both robbery and theft by unlawful taking based upon one common underlying theft. As will be discussed below, we believe that our decision in Terry is a proper exposition of the law but that it does not foreclose Lloyd from obtaining relief because the General Assembly has shown its intent to prevent prosecutions for both theft by unlawful taking and robbery based upon the same underlying theft.

Strict application of the Blockburger test in conjunction with our opinion in Terry would, standing alone, lead to a conclusion that there is no double jeopardy violation in this case because each offense contains at least one element that the other does not. But the application of Blockburger is not the end of our analysis because we must also determine if the General Assembly intended for one theft to be prosecuted as both theft by unlawful taking and a robbery..

2. Legislative Intent.

The Blockburger test, although highly useful, is simply “a rule of statutory interpretation” since “neither the United States nor the Kentucky Constitution proscribes the imposition of multiple punishments for separate offenses committed during the course of a single criminal episode.” Accordingly, “[t]he rule against double jeopardy in this situation [multiple criminal charges based upon one underlying act] presume[s] that where two statutory provisions proscribe the same offense, a legislature does not intend to impose two punishments for that offense.”

As the United States Supreme Court held, “[t]he Blockbwrger test is a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” In other words, the Blockbwrger test must yield to a contrary expression of legislative intent. Although legislative intent may often be difficult to discern, we conclude that it is discernible in this case because there are sufficient indicia of intent to prohibit convictions for both first-degree robbery and felony theft arising from one underlying theft.

First, the General Assembly chose to use prominently the word theft in KRS 515.020, the applicable robbery statute. Specifically, KRS 515.020(1) provides that a person commits first-degree robbery when “in the course of committing theft....” The use of the specific word theft in both the robbery statute and in the theft by unlawful taking statute is surely not coincidental. We believe that the use of the same term in both statutes evinces the General Assembly’s intent to define robbery as being theft plus the additional element of force or threatened force.

This conclusion is readily reinforced by the previously mentioned commentary to KRS 515.020, which provides, in relevant part, that “all of the elements of the crime of theft as set forth in ICRS 514.080 are incorporated into this offense.” We believe that commentary, which, of course, may be used as an aid in construing the statutes of the penal code, represents an unmistakable expression of intent for theft by unlawful taking to be subsumed into robbery. It would be a clear violation of legislative intent, therefore, for a person such as Lloyd to be convicted of both theft by unlawful taking and robbery based upon the same incident of theft.

Although perhaps based upon a different rationale, this conclusion is consistent with precedent holding that a double jeopardy violation occurs if a person is convicted of both robbery and theft by unlawful taking if he steals the same property. Likewise, this conclusion does no violence to our holding in Terry that a threshold monetary amount in a statute constitutes a substantive element of that statutory offense. Rather, our holding today carves out only a narrow exception to Terry for cases involving prosecutions for theft by unlawful taking and robbery based upon the same underlying theft.

In summary, because the General Assembly has specifically shown its intent that a person in Lloyd’s position may not be convicted of both theft by unlawful taking and robbery based upon the same underlying theft, Lloyd’s double jeopardy argument is meritorious. So Lloyd’s conviction for theft by unlawful taking must be reversed, and the matter must be remanded to the trial court for dismissal of the theft by unlawful taking charge and entry of a new final judgment.

B. No Error in Denial of Motion to Suppress.

The trial court found that the stop and seizure of the vehicle in which Lloyd was found hidden was supported by probable cause. Lloyd contends that finding is not supported by substantial evidence. Even though we have already reversed Lloyd’s felony theft conviction, we shall address this issue because granting relief on it would also necessitate vacating Lloyd’s robbery conviction.

At the brief suppression hearing that was held immediately before trial, the only testimony was given by Officer Taylor. Officer Jones, who initially stopped the vehicle in which Lloyd was found, was unavailable to testify.

On direct examination, Officer Taylor testified that the description given by dispatch of the vehicle fleeing the drugstore robbery was a small vehicle, possibly a Toyota or Nissan. Officer Taylor agreed with the Commonwealth’s assertion that the description given by dispatch was of a “little foreign car.” Officer Taylor then testified that Officer Jones, who stopped the car in question, stated on the police radio that he was trying to catch a small car that was attempting to merge onto the interstate at a high rate of speed. Later during his testimony, Officer Taylor agreed with the Commonwealth when it stated that Officer Jones had related that the car was traveling 80-100 miles per hour.

When Officer Taylor arrived at the stop to assist Officer Jones, Officer Jones told Officer Taylor that he had asked the driver of the car for registration papers; and the driver had produced registration papers for a boat. Jones also told Taylor that the driver was “acting very nervous.” The driver gave the officers permission to search the car, and during that search, the officers found Lloyd hiding in the trunk and holding a gun.

On cross-examination, Officer Taylor again testified that dispatch described the vehicle associated with the drugstore robbery as being a small foreign car, possibly a Toyota or Nissan. Officer Taylor testified that he believed the car in which Lloyd was found was a Honda. Officer Taylor testified further that he was not sure how Officer Jones had ascertained the speed of the vehicle in which Lloyd was found.

At the conclusion of Officer Taylor’s testimony, the trial court denied the motion to suppress, finding that probable cause existed for the stop and the search was based upon consent. The case then proceeded to trial.

As we have recently stated:

Motions to suppress are governed by Kentucky Rules of Criminal Procedure (RCr) 9.78, which provides that a court presented with a motion to suppress “shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling.” Upon appellate review, [RCr 9.78 provides that] the trial court’s findings of fact are “conclusive” if they are “supported by substantial evidence.... ” “Using those facts, the reviewing court then conducts a de novo review of the trial court’s application of the law to those facts to determine whether the decision is correct as a matter of law.”

All warrantless searches are presumed unreasonable unless the search falls within an exception to the warrant requirement. The officers in this case had no warrant. But consent is a well-recognized exception to the warrant requirement. And Officer Taylor’s testimony that the driver gave consent to search the vehicle was not rebutted, nor does Lloyd contend that the driver lacked authority to consent to the search of the vehicle. The propriety of the search, therefore, is not really at issue. More accurately, the issue is the antecedent question of whether the initial stop of the vehicle was proper.

It is well-settled that “an officer who has probable cause to believe a .... traffic violation has occurred may stop a vehicle regardless, of [the officer’s] subjective motivation in doing so.” It is also well-settled that hearsay testimony is generally permissible at a suppression hearing. Actually, a pre-trial finding of probable cause may be based upon hearsay even though the hearsay may not be admissible in an actual trial. So the fact that the testimony at the suppression hearing regarding the propriety of the initial stop of the vehicle was largely, if not entirely, based upon hearsay testimony of Officer Taylor is not automatic grounds for granting the motion to suppress.

Officer Taylor testified that Officer Jones had radioed that he was going to stop the car because it was going at a high rate of speed — 80 to 100 miles per hour. Although cross-examination of Officer Taylor showed that he did not know Officer Jones’s basis for determining the speed of the vehicle, Lloyd offered no evidence to rebut Officer Jones’s observation that the vehicle was traveling at a high rate of speed. Since a speed of eighty miles per hour, the minimum speed mentioned by Officer Jones, is above the maximum permitted speed on an interstate in Kentucky, then Officer Jones clearly had probable cause to initiate a traffic stop of the vehicle in which Lloyd was hiding.

The fact that Officer Jones may have also wanted to stop the vehicle because it matched the description of the getaway vehicle from the drugstore robbery is irrelevant at this time because, again, “an officer who has probable cause to believe a ... traffic violation has occurred may stop a vehicle regardless of [the officer’s] subjective motivation in doing so.” So Lloyd’s argument that the description of the getaway vehicle as a Toyota or Nissan rendered improper the stop of this Honda vehicle is without merit.

In summary, we find no error in the trial court’s denial of the motion to suppress.

III. CONCLUSION.

For the foregoing reasons, the judgment of the circuit court is affirmed as to Lloyd’s robbery conviction and reversed as to Lloyd’s theft by unlawful taking conviction; and the ease is remanded to the trial court with instructions to dismiss the theft by unlawful taking charge and for the entry of a new final judgment.

All sitting. ABRAMSON, NOBLE, SCHRODER, SCOTT, and VENTERS, JJ., concur. CUNNINGHAM, J., concurs by separate opinion.

CUNNINGHAM, J.,

concurring:

I fully concur with the opinion of the Chief Justice. I add to emphasize a point that supports the decision of the majority. Theft by unlawful taking is a lesser-included offense of robbery. Roark v. Commonwealth, 90 S.W.3d 24, 38 (Ky.2002). Common sense, therefore, should dictate that one cannot be convicted of both. However, while a person cannot be charged and convicted of both, one may still be convicted for the theft as a lesser included, although the jury may find the defendant not guilty of robbery.

      . "OxyContin is a prescription narcotic pain reliever that was approved by FDA in 1995 ... and its active ingredient is oxycodone, a derivative of opium.” http://www.fda.gov/ Drugs/DrugSafety/PostmarketDrugSafety InformationforPatientsancLProviders/ ucm207196.htm.

      . Lloyd pleaded guilty to an amended charge of possession of a firearm by a convicted felon and received a sentence of three years’ imprisonment to be served consecutively to the twenty-two year cumulative sentence for the robbery and theft by unlawful taking convictions. No issue pertaining to that firearm conviction or the sentence Lloyd received for it has been raised in this appeal.

      . Ky. Const. § 110(2)(b). Final judgment on the robbery and theft was entered in August 2006. About three years later, we granted Lloyd’s motion for a belated appeal.

      . See also U.S. Const. Amend. V.

      . Lloyd did not present his double jeopardy argument to the trial court. But double jeopardy questions may be reviewed on appeal "even if they were not presented to the trial court." Terry v. Commonwealth, 253 S.W.3d 466, 470 (Ky.2008).

      . 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Id. at 304, 52 S.Ct. 180.

      . Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.1996).

      . In 2009, the General Assembly amended KRS 514.030 to provide that the value of the property must be $500 or more for the offense to be classified as a felony. 2009 Ky. Acts Ch. 106 (H.B.369) § 6.

      . There is no contention that the stolen items at issue had a value of less than $300.

      .Curiously, this commentary refers to KRS 515.030, which governs robbery in die second degree even though the commentary is attached to KRS 515.020, which governs robbery in the first degree. For purposes of this appeal, however, that curiosity is irrelevant because robbery in the second degree also clearly contains an element that theft by unlawful taking does not — namely, in order to be guilty of robbery in the second degree a person must "in the course of committing theft, ... use [ ] or threaten [ ] the immediate use of physical force upon another person with intent to accomplish the theft.” KRS 515.030(1).

      . See, e.g., McKee v. Commonwealth, 720 S.W.2d 343, 344 (Ky.App.1986), citing Jordan v. Commonwealth, 703 S.W.2d 870, 873-74 (Ky.1985).

      . 253 S.W.3d 466. Although its holding provides a key to resolve this case, Terry inexplicably was not cited in the parties' briefs.

      . Id. at 471 (citing cases from Washington State and the United States Court of Appeals for the First Circuit).

      . Id.

      . Id.

      . Id. at 472 ("When the elements of first-degree desecration of venerated objects are compared with the elements of theft by unlawful taking over $300, it becomes clear that Terry’s convictions for those offenses did not violate double jeopardy principles. First, theft by unlawful taking over $300 contains a threshold minimum monetary property value for the item(s) taken. By contrast, first-degree desecration of venerated objects contains no ■ such monetary property value requirement.”).

      . 50 Am.Jur.2d Larceny § 44 (2010). Even though it specifically applies to larceny, this section of Am Jur.2d is applicable to this case because the offense of theft by unlawful taking in Kentucky law is intended to include all prior offenses involving unlawful appropriation of property, including grand and petit larceny. See Commentary to KRS 514.030.
      Although not cited by the parties, we are aware that other courts considering similar issues have come to a conclusion contrary to the general viewpoint expressed in Am. Jur.2d. See, e.g., State v. Smith, 117 Ohio St.3d 447, 884 N.E.2d 595, 599 (2008) ("Smith also argues that theft requires proof of the value of the property stolen, while robbery has no such element. But the elements of theft do not include value. Rather, value is a special finding to determine the degree of the offense, but is not part of the definition of the crime. Thus, Smith's position is not well taken.”).

      . Beaty v. Commonwealth, 125 S.W.3d 196, 210 (Ky.2003).

      . Id. (quotation marks omitted).

      . Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (internal quotation marks omitted).

      . Cf. Commonwealth v. Colonial Stores, Inc., 350 S.W.2d 465, 466 (Ky.1961) ("If the offering of each package may be considered to be a separate offense there would be no double jeopardy, because the proof required to sustain one of the indictments would not necessarily sustain any of the others [i.e., the Block-burger same elements test has been satisfied]. We think the question is simply one of determining the legislative intent. Did the legislature intend that in the offering for sale of a particular commodity in separate packages a separate offense would be deemed to be committed as to each package?”) (citation omitted).

      . See KRS 500.100 ("The commentary accompanying this code may be used as an aid in construing the provisions of this code.”).

      . See, e.g., McKee, 720 S.W.2d at 344.

      . Because the issue is not before us, we express no opinion as to whether it is permissible for prosecutions for robbery and any other type of theft crime to be based upon the same underlying theft.

      . The remedy for these types of double jeopardy violations is to vacate the conviction for the lesser offense. Brown v. Commonwealth, 297 S.W.3d 557, 562-63 (Ky.2009). Theft by unlawful taking under these facts is a Class D felony, KRS 514.030(2); robbery in the first degree is a Class B felony, KRS 515.020(2). Thus, we vacate the theft by unlawful taking conviction. See McKee, 720 S.W.2d at 344 (affirming robbery conviction and reversing theft by unlawful taking conviction with directions to dismiss the theft by unlawful taking charge).

      . From the parties' briefs, it is unclear how the authorities gained a description of the getaway vehicle. Presumably, a witness gave the description to the authorities; but the source of the description is irrelevant to the issues in this appeal.

      . McCloud v. Commonwealth, 286 S.W.3d 780, 784 (Ky.2009), quoting Commonwealth v. Jones, 211 S.W.3d 190, 193 (Ky.2006) (internal footnote omitted).

      . Jones, 217 S.W.3d at 195.

      . Id. at 198.

      . Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky.2001).
      Lloyd’s brief contains an extended discussion of an apparent controversy in federal courts about whether a reasonable suspicion or probable cause standard should be used in determining the propriety of a stop based on a traffic violation. As may be gleaned from the quote from Wilson, we use the probable cause standard in these situations. We need not distract our focus from the issue before us by enmeshing ourselves into the federal courts’ apparent debate over which standard should be used, however, because Lloyd is not entitled to relief under either standard.

      . Kotila v. Commonwealth, 114 S.W.3d 226, 235 (Ky.2003), overruled on other grounds by Matheney v. Commonwealth, 191 S.W.3d 599, 603 (Ky.2006).

      . See, e.g., Greene v. Commonwealth, 244 S.W.3d 128, 134 (Ky.App.2008) (noting in course of determining at suppression hearing whether arrest was supported by probable cause that "[a] finding of probable cause may be based upon evidence, such as hearsay, which would be inadmissible at trial.”).

      . See KRS 189.390 (stating maximum permissible speed of sixty-five or seventy miles per hour, depending on the location, for interstate highways in Kentucky).

      . Wilson, 37 S.W.3d at 749. (Emphasis added).


author: Chief Justice MINTON.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Angella PRATER, Appellee.
    No. 2009-SC-000352-DG.
    Supreme Court of Kentucky.
    Oct. 21, 2010.

      Jack Conway, Attorney General of Kentucky, Heather Michelle Fryman, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellant.
    Barbara Anderson, F.J. Anderson, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

The Court of Appeals vacated a judgment convicting Angella Prater of reckless homicide for her son’s death in a vehicular collision, concluding that the trial court erred in allowing extrinsic evidence to impeach Prater on a collateral matter. Specifically, the trial court had allowed the Commonwealth to introduce extrinsic evidence to disprove Prater’s assertion in direct testimony that she had undergone nasal surgery a few days before the collision and, as a result of the nasal surgery, had received prescriptions for two painkillers. Because Kentucky precedent recognizes that a trial court’s decision to admit evidence despite claims of improper collateral impeachment is subject to review for abuse of discretion and because we discern no abuse of discretion in the trial court’s admitting the evidence under the unique facts and circumstances presented in this ease, we reverse the Court of Appeals and reinstate the judgment of the trial court.

I. FACTS.

Prater was the driver in a single-vehicle collision in which her truck left the road and hit a tree. Eyewitness testimony indicated that Prater may have been traveling too fast or inattentively. But other evidence suggested that a tire came off the truck causing it to leave the road. Prater’s two-year-old son, who was a passenger in the truck at the time of the collision, died as a result of blunt-impact trauma to the head.

Soon after the accident, the Kentucky State Police laboratory tested Prater’s blood for drugs and alcohol. The test results were positive for prescription painkillers Tramadol and Methadone at or below therapeutic levels. The test results were also positive for Zoloft, an antidepressant for which the laboratory did not have a standard for therapeutic levels at that time. Apparently, no alcohol or other drugs were found in her blood; and a laboratory official later testified that she could not determine whether Prater was impaired as a result of the prescription drugs.

Prater was indicted and tried on a charge of reckless homicide, a Class D felony. At trial, she testified to having taken the three prescription drugs the day before the accident. She further stated that a counselor had prescribed the Zoloft and that a doctor prescribed the painkillers following nasal surgery, which she alleged she underwent “three or four” days before the accident. Upon cross-examination, Prater admitted that she was uncertain about when the nasal surgery occurred. She allowed on cross-examination that perhaps the nasal surgery could have occurred more than the three or four days before the accident. The Commonwealth’s attorney then suggested that perhaps Prater could have easily obtained her medical records in advance of trial to facilitate quick verification of the precise date of the nasal surgery.

At a bench conference that followed, the Commonwealth asked the trial court for an order to obtain Prater’s medical records from the nasal surgery. Prater’s counsel objected, based on relevancy; questioned what the Commonwealth expected to find in the records; and informed the court that the nasal surgery actually occurred after the accident. The trial court overruled the objection and issued an order permitting the Commonwealth to obtain Prater’s medical records from the doctor whom Prater identified as having performed her nasal surgery and having prescribed the two painkillers.

After the jury returned from a break, the medical records custodian and nurse of the physician who performed the nasal surgery testified. The custodian’s review of the records revealed that the nasal surgery occurred over two years after the accident and that the physician had prescribed one painkiller, Methadone; but he had not prescribed the other painkiller.

Prater later resumed the witness stand and explained that she had misremembered the nasal surgery as occurring a few days before the accident. She testified that she had had a number of medical problems, including a head injury from the accident, and had become confused. She testified then that she had suffered an ankle injury before the accident for which she took painkillers. Over the Commonwealth’s objection to lack of authentication, the trial court permitted Prater to present evidence of records indicating that she had been seen by a doctor for an ankle injury several weeks before the accident and that she had filled prescriptions for the two painkillers at a particular pharmacy before the accident.

Upon further cross-examination, the Commonwealth attempted to cast doubt on Prater’s claims that she was taking two prescription painkillers for the ankle injury by eliciting Prater’s admission that there was no radiology report for the ankle injury. This suggested, of course, that no fracture had occurred or was even suspected. Prater also admitted that she had no direct record that a doctor had prescribed any painkillers for the ankle injury. She went on to state that she could not actually recall the medical condition for which she began taking the painkillers, and she was hesitant or unsure about identifying the name of the doctor who had prescribed them. And we are not aware of any request by Prater for further intervention by the trial court, such as a request for a continuance, in order to gather and present other medical records or other evidence concerning her treatment for her ankle injury or other medical conditions.

The jury found Prater guilty of the reckless homicide charge and recommended the maximum sentence of five years’ imprisonment. The trial court entered judgment in accordance with the jury’s verdict and sentencing recommendation.

On appeal, the Court of Appeals vacated the trial court’s judgment and remanded for further proceedings on the basis that the trial court had “erred to [Prater’s] substantial prejudice in allowing the Commonwealth to introduce evidence that impeached her testimony that the pain medication in her system was the result of prescriptions connected to nasal surgery.”

The Court of Appeals determined that the reason for Prater’s admitted use of the prescription drugs in her system was irrelevant to determining her guilt or innocence on the reckless homicide charge and was, thus, a collateral issue. Noting that Prater’s objection on relevancy grounds was closely related to the concept of collateral impeachment and, thus, determining the collateral impeachment issue adequately preserved for review, the Court of Appeals concluded that the trial court had erroneously allowed the Commonwealth to introduce evidence to impeach Prater on a collateral issue. The Court of Appeals vacated the conviction.

II. ANALYSIS.

A. We Assume that the Issue of Collateral Impeachment is Adequately Preserved.

The Commonwealth contends that the Court of Appeals erred in determining that the issue of collateral impeachment was adequately preserved by Prater’s objection on grounds of relevancy. Although we agree with the Court of Appeals that the issue of collateral impeachment is closely related to the concept of relevancy, Prater’s objection on relevancy grounds did not clearly invoke the prohibition against collateral impeachment, meaning that preservation of the collateral impeachment issue may be somewhat questionable.

Given the imprecise preservation of the issue, the issue should arguably only be reviewed under a palpable error standard under RCr 10.26. But even assuming that the issue is properly preserved, we do not believe the trial court abused its discretion in admitting the evidence; and so we believe that the Court of Appeals incorrectly determined that Prater was entitled to relief.

We certainly agree that a more specific objection on collateral impeachment would have been more effective in bringing this issue to the trial court’s attention; but we will, nonetheless, accept for the sake of argument that the issue of collateral impeachment is adequately preserved in order to address this issue and provide guidance to the bench and bar.

B. Court of Appeals Erred in Vacating Conviction for Collateral Impeachment.

This case forces us to apply the somewhat confusing rule against collateral impeachment. In fact, there is no particular rule in the Kentucky Rules of Evidence (KRE) clearly addressing impeachment on collateral facts, matters, or issues. Yet, our case law continues to hold that impeachment on collateral matters by extrinsic evidence is not allowed. Despite the clear prohibition from case authority against impeachment on collateral matters by extrinsic evidence, we still review the trial court’s decision to admit evidence over objections of collateral impeachment under an abuse of discretion standard of review as we explain below.

Professor Lawson notes that rules concerning collateral impeachment “are easy to describe but very difficult to apply, because of the complexity involved in determining ‘collateralness.’ ” And because determinations of the collateralness are so fact-specific and generally not clear-cut, Kentucky precedent provides that a trial court’s decision to admit impeachment evidence on a purportedly collateral matter is subject to an abuse of discretion standard: “decisions on collateralness fall within the discretion of the judge and are reviewed for abuse of that discretion [; and this is] no surprise since they depend so heavily on the specific facts of the case and require a careful exercise of sound judgment in the heat of courtroom battle.”

Applying the proper abuse of discretion standard of review, we disagree with the Court of Appeals’ determination that Prater’s conviction must be vacated. We hold that the trial court properly exercised its discretion to permit impeachment on this issue because Prater created the issue by offering on direct examination a misleading explanation of why she was taking the painkillers. It is plausible to infer that she did so in an effort to present herself to the jury in a sympathetic light.

I. Regardless of Whether Issue of Reason for Prater’s Painkiller Use Was Collateral, Trial Court had Discretion to Allow Admission of Extrinsic Evidence to Disprove Prater’s Assertion on Direct Examination Because She Injected this Issue into the Trial.

Perhaps the most hotly disputed issue in this case is whether the reason for Prater’s admitted ingestion of the two prescription painkillers is truly a collateral matter. And we note that whether Prater had taken the prescription painkillers as a result of a particular surgery or injury or for other reasons was not necessarily the linchpin of her guilt or innocence on the reckless homicide charge. For example, it is possible that one might be held liable for reckless homicide for fatal injuries resulting from driving impaired from the side effects of properly prescribed and administered drugs — particularly where the defendant was warned of side effects such as drowsiness. Nonetheless, the fact remains that Prater first injected into the trial the issue of her reason for taking the painkillers; and we must consider the effect of her injecting the issue into the trial.

Even assuming that the reason for her taking the prescription painkillers was a collateral matter, Professor Lawson recognizes that an unsettled issue arises, namely: “May a party who first opens the door to a collateral issue take advantage of the prohibition against collateral facts impeachment?” On the one hand, “[t]he damaging effects of issue proliferation do not depend upon who takes the initiative to introduce a collateral issue into the case.” On the other, “one must harbor at least some doubt as to whether a party should be permitted to raise a collateral matter and then use the law as a shield against full contradiction of that matter.”

And Professor Lawson notes a split among Kentucky cases before adoption of the Kentucky Rules of Evidence. He cites Dixon v. Commonwealth as indicating that impeachment on collateral matters may be permitted when a party “opens the door” to a collateral issue through that party’s testimony on direct examination. He also cites Keene v. Commonwealth as an opposing example where impeachment on a collateral matter was considered improper without any discussion of the fact that the collateral issue was first raised by the defendant upon direct examination. Professor Lawson concludes that this split “may suggest that outcomes should depend upon specific facts and circumstances of a case and the exercise of sound discretion by the trial judge.”

In light of the concerns raised in Professor Lawson’s discussion — desire to avoid issue proliferation versus potential use of collateral impeachment rules as a “license to lie” — including an apparent split in authority, we conclude that the trial court has discretion to determine whether or not to permit impeachment on collateral issues when a party has opened the door to such issues by raising them in direct testimony. And we believe that our conclusion is supported by Kentucky precedent. To the extent that some Kentucky cases might appear to hold that a trial court invariably lacks discretion to permit impeachment on a collateral issue raised by a party on direct examination, such cases are hereby overruled.

We believe the trial court is in the best position to decide whether the facts and circumstances of that case present a scenario in which the evil of allowing a party to offer voluntarily what may be knowingly false testimony with impunity outweighs the evil of having to devote trial time to impeachment on collateral matters. And we now clearly hold that the trial court has discretion to permit or deny impeachment by extrinsic evidence on a collateral issue raised by a party on direct examination.

2. Trial Court Did Not Abuse its Discretion in Admitting the Evidence.

Under the unique facts of this case, we discern no abuse of discretion in the trial court’s admission of Prater’s medical records to impeach her assertion on direct examination that she took the prescription painkillers because they had been prescribed to her following nasal surgery shortly before the accident. Prater chose to create the issue of the reason behind her taking the painkillers to the jury and was allowed to present other records— despite concerns over lack of authentication — in her efforts to show other medical reasons for taking the prescription painkillers once the Commonwealth effectively cast doubt on her initial assertion. Because she opened the door to inquiry on why she was taking the prescription drugs, we believe that the trial court had latitude to allow the Commonwealth to attack the veracity of her assertion or to require that the matter drop on grounds of issue proliferation, jury confusion, or waste of time.

Here, Prater’s assertion on direct examination that she took the drugs as prescribed following surgery might cast her in a more sympathetic light than, for example, leaving the jury to guess whether she was taking the drugs recreationally or had obtained the drugs in violation of the law. Because Prater herself raised the reason for her prescription painkiller use to the jury in a way likely to increase its sympathy toward her, denying the Commonwealth the opportunity to investigate and rebut the truth of her assertion could obviously impede the interests of justice and search for the truth. So the trial court did not abuse its discretion in permitting the Commonwealth to impeach her on a matter that she injected into trial with the likely, if not intended, effect of appealing to the jury’s sympathy.

Because Prater chose to raise the issue of why she had taken the prescription painkillers to the jury as part of her defense and because flatly foreclosing the Commonwealth from any opportunity to impeach this assertion through extrinsic evidence could have had the effect of condoning false testimony without consequences, we find no abuse of discretion in the trial court’s allowing impeachment by extrinsic evidence under the facts here.

III. CONCLUSION.

For the foregoing reasons, the judgment of the Court of Appeals is reversed; and the judgment of the trial court is reinstated.

All sitting. All concur.

      . Kentucky Revised Statutes (KRS) 507.050(“(1) A person is guilty of reckless homicide when, with recklessness he causes the death of another person. (2) Reckless homicide is a Class D felony.”).

      . Prater’s brief points out that during the course of her cross-examination by the Commonwealth, she asked whether she was being tried for medical records or for driving recklessly. And she also points out that the trial court explained to her that she had testified on direct examination to undergoing nasal surgery shortly before the accident, that records indicated the nasal surgery occurred after the accident, and that was why she was being cross-examined about her medical records. We note that this explanation for the cross-examination did not occur at a bench conference but, apparently, within the hearing of the jury. Also, other objections were occasionally discussed by the trial court in the hearing of the jury. While our preference would be for such discussion of objections and legal issues to be outside the hearing of the jury, Prater has not asserted any error from such discussions before the jury; and we see no indication of any palpable error (as defined by Kentucky Rules of Criminal Procedure (RCr) 10.26) occurring as a result.

      . We also note that the Court of Appeals rejected Prater's argument that she was entitled to a directed verdict based on insufficiency of the evidence and her argument that the trial court erred in not admonishing the jury that it could not consider her failure to secure the child in a safety seat to be reckless conduct. But Prater did not file a protective cross-appeal on these issues that the Court of Appeals did not resolve in her favor. So none of those issues are properly before us.

      . The Court of Appeals took note that Prater did not explicitly raise the issue of collateral impeachment when objecting to the admission of her medical records. Nonetheless, it concluded that the issue of collateral impeachment was adequately preserved by Prater’s objection on relevancy. Its conclusion was based on Court of Appeals precedent that recognized that collateral impeachment issues are closely related to relevancy issues, quoting Simmons v. Small, 986 S.W.2d 452, 455 (Ky.App.1998): "A matter is considered collateral if the matter itself is not relevant in the litigation to establish a fact or consequence, i.e., not relevant for a purpose other than mere contradiction of the in-court testimony of the witness." (quotation marks omitted).
      Since the result in this case does not change whether the issue is preserved or not, this opinion should not be construed as a definitive holding that an objection based on relevancy will always suffice to preserve an appellate argument that evidence was inadmissible on collateral impeachment grounds.

      . As we recognized in West v. Commonwealth, 780 S.W.2d 600, 603 (Ky.1989), that stating objections with specificity may help prevent error by trial courts by directing their attention to issues that otherwise might not be fully considered until appeal.

      . See Robert G. Lawson, The Kentucky Evidence Law Handbook (4th ed.2003) § 4.05(3). ("Kentucky’s Evidence Rules, like the Federal Rules, say nothing specific about impeachment on collateral facts.”).

      . See, e.g., Purcell v. Commonwealth, 149 S.W.3d 382, 397-98 (Ky.2004) ("Although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have continued to recognize that prohibition as a valid principle of evidence.”); Woodard v. Commonwealth, 219 S.W.3d 730 (Ky.2007) ("this would be impeachment on a collateral matter, which is allowed while the witness is still on the stand, although not by extrinsic evidence”).

      . Lawson at § 4.05(2).

      . Id., citing, e.g., Wickware v. Commonwealth, 444 S.W.2d 272, 275-76 (Ky.1969).

      . We note that the jury was not specifically asked to determine if Prater was impaired as a result of her use of prescription drugs and that it is possible that the jury found her behavior to have been reckless for other reasons.

      . See Commonwealth v. Reynolds, 67 Mass.App.Ct. 215, 852 N.E.2d 1124, 1126, 1130 (2006) (upholding conviction for "vehicular homicide by reckless or negligent operation while under the influence of narcotic drugs or depressants (felony vehicular homicide)” where evidence indicated that defendant was impaired due to taking certain prescription drugs (prescription painkiller and Valium) as prescribed by medical professionals where defendant had received written and oral warnings as to drugs’ tendency to induce drowsiness and impair driving).

      . Lawson at § 4.05(4).

      . Id.

      . Id.

      . 487 S.W.2d 928 (Ky.1972).

      . 307 Ky. 308, 210 S.W.2d 926 (1948), overruled on other grounds by Colbert v. Commonwealth, 306 S.W.2d 825, 828 (Ky.1957). Colbert itself has been overruled on grounds not germane to the case at hand.

      . We also note that Prater cites Rowe v. Commonwealth, 50 S.W.3d 216, 224 (Ky.App.2001), in her brief for the proposition that regardless of who opened the door on a collateral issue, impeachment on a truly collateral issue is not permitted.

      . Lawson at § 4.05[4].

      . See Kevin McMunigal & Calvin William Sharpe, Reforming Extrinsic Impeachment, 33 Conn.L.Rev. 363, 379 (2001) (arguing for use of weighing approach rather than bright line rule forbidding all impeachment by extrinsic evidence of collateral matters in Federal Rules because “in the context of impeachment, the predictability of bright line rules may not be entirely desirable. Ironically, it may have the negative consequence of encouraging perjury. If a witness and the lawyer calling the witness know, for example, that if the witness falsely denies a non-conviction act offered on truthfulness, the cross-examining lawyer is absolutely barred from disproving the witness' denial by extrinsic proof, the witness and lawyer calling him may be tempted to offer perjured testimony. In other words, they may view a ... bright line exclusion as a license to lie. By contrast, if the lawyer and witness are unsure whether the judge will or will not allow such extrinsic proof under a case-by-case approach, they have a greater incentive not to offer a lie because there is a greater chance the perjury will be exposed before the fact finder by extrinsic proof.”). See also Frederick C. Moss, The Sweeping Claims Exception and the Federal Rules of Evidence, 1982 Duke L.J. 61 (1982).

      . See Dixon, 487 S.W.2d at 930 (holding that in light of defendant’s statement on direct examination that he had never been previously arrested on a morals charge, evidence of prior convictions of morals charges, if properly authenticated, could have been properly admitted in rebuttal); Cox v. Commonwealth, 290 Ky. 642, 162 S.W.2d 201, 201-02 (1942) (no reversible error from trial court permitting presentation of witness’s testimony concerning specific prior bad act due to defendant "opening door” to issue by testifying on direct examination that he had never been charged with similar crimes in past, especially as trial court gave limiting admonition); Dowell v. Bivins, 586 S.W.2d 297, 299-300 (Ky.App.1979) (in trial of parents’ civil lawsuit to recover for death of child hit by vehicle on public highway, defense was properly permitted to present testimony of other witnesses concerning prior occasions when child was seen playing unsupervised near same highway to rebut parents' testimony that child always played close to home under parental supervision and never played near highway); Stallworth v. Commonwealth, No.2000-SC-0821MR, 2001-SC-0569-TG, 2002 WL 32083941, at *4 (Ky. Oct. 17, 2002) (finding no abuse of discretion in trial court’s allowing Commonwealth to identify defendant’s prior convictions as being for the same crime he was presently charged with (drug trafficking) in light of defendant “opening door” to this collateral issue by his statement on cross-examination that he had never sold drugs, despite KRE 609’s limits on specifically identifying the nature of prior convictions). See also Purcell, 149 S.W.3d at 397-98 ("Although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have continued to recognize that prohibition as a valid principle of evidence,” but noting that "Professor Lawson suggests that the issue is more properly decided by applying the KRE 403 balancing test, i.e., weighing the probative value of the impeachment against the prejudicial effect of that evidence and its possible confusion of issues” before ultimately also stating that the prejudicial effect of prior bad acts will almost always outweigh their probative value.) (citations omitted).

      . To our knowledge, Prater was not charged with illegal possession of the prescription drugs.


author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, CLE COMMISSION, Movant, v. D. Anthony BRINKER, Respondent.
    No. 2010-SC-000004-KB.
    Supreme Court of Kentucky.
    Oct. 21, 2010.
   OPINION AND ORDER

The Kentucky Bar Association Continuing Legal Education Commission has requested that we enter an order of suspension against D. Anthony Brinker, KBA No. 07614. Brinker’s last known bar roster address is 301 Pike Street, P.O. Box 1226, Covington, Kentucky 41011.

Brinker was certified to this Court as being in non-compliance with the minimum annual continuing legal education requirements for the 2008-09 educational year in December 2009. We entered an order on December 10, 2009 ordering Brinker to show cause why he should not be suspended for non-compliance with the minimum CLE requirements. Brinker’s response to the show cause order was deficient, in that it did not include the $25.00 filing fee required by both the order itself and SCR 3.669(3), and thus, we issued a deficiency letter on January 4, 2010 requiring the payment of the filing fee within ten days. Brinker never corrected this deficiency, but his response was filed nonetheless.

Thereafter, we issued an order, dated March 18, 2010, adjudging Brinker guilty for failing to complete the annual mandatory minimum continuing legal education requirements for the 2008-09 year, and ordering him to pay a fine in the amount of $750.00 by April 7, 2010. Said order also applied back credits from the 2009-10 educational year to Brinker’s CLE record for 2008-09 in order to cure his deficiency, and prevented him, pursuant to SCR 3.667(2), from applying for a non-hardship extension for the educational years ending June 30, 2010 and June 30, 2011.

Just as Brinker never paid the $25.00 filing fee for his response to the show cause order, he has yet to pay the $750.00 fine that was due on April 7, 2010. Furthermore, the CLE Commission advises this Court in its motion that Brinker failed to earn sufficient CLE credits to satisfy the mandatory minimum required for the 2009-2010 educational year, which ended on June 30, 2010.

Due to Brinker’s failure to comply and subsequently respond, and due to his continued non-compliance with the CLE requirement, the CLE Commission requests that Brinker be suspended from the practice of law pursuant to SCR 3.669(4). We find this to be an appropriate sanction.

Accordingly, it is ORDERED that:

1. D. Anthony Brinker is adjudged guilty of failing to comply with this Court’s order, entered March 18, 2010, requiring him to pay a fine in the amount of $750.00;
2. He is hereby suspended from the practice of law until such time as this Court enters an order restoring or reinstating his membership in the Kentucky Bar Association;
3. He shall not file an application for restoration or reinstatement until such time as any CLE deficiency of record and existing requirements are met as set forth in SCR 3.675 and he has paid the sum of $750.00 to the Kentucky Bar Association, along with such other costs as are necessary;
4. He shall, pursuant to SCR 3.390, notify all courts in which he has matters pending of his suspension from the practice of law, and notify all clients in writing of his inability to represent them and of the necessity and urgency of promptly retaining new counsel by letter duly placed in the United States mail within ten days of the date of this order. He shall simultaneously provide a copy of all such letters to the Kentucky Bar Association. Furthermore, to the extent possible and necessary, he shall immediately cancel and cease any advertising activities in which he is engaged; and
5. If he fails to comply with any of the terms of discipline as set forth herein, upon motion of the Office of Bar Counsel, this Court may impose other discipline in this matter.

All sitting. All concur.

ENTERED: October 21, 2010

/s/ John D. Minton, Jr. Chief Justice