text:
    Ima Ruth THRASHER, Individually, and as Executrix of the Estates of Howard Thrasher; and Barry Douglas Thrasher, Appellants, v. Tilmond DURHAM, Terrill Durham, and Walter Powell, III, d/b/a DP Enterprises, Appellees.
    No. 2008-SC-000809-DG.
    Supreme Court of Kentucky.
    June 17, 2010.

      Robert E. Reeves, Lexington, KY, Counsel for Appellants.
    Robert S, Walker, III, Frost Brown Todd, LLC, Lexington, KY, Counsel for Appellees.
   Opinion of the Court by

Justice ABRAMSON.

Ima Ruth Thrasher, both individually and as the executrix of the estate of Howard Thrasher, and Barry Douglas Thrasher appeal from an Opinion of the Court of Appeals affirming the dismissal of the Thrashers’ negligence action against Til-mond Durham, Terrill Durham, and Walter Powell, III, d/b/a DP Enterprises. DP Enterprises operates oil wells in Clinton County. The Thrashers, who own and live on property near Bug, Kentucky in the vicinity of some of the wells, alleged that DP Enterprises negligently permitted hydrogen sulfide gas to escape from one or more of the neighboring wells and that the gas damaged their property and caused them personal injury. A 2007 trial in the Clinton Circuit Court resulted in a jury verdict adverse to the Thrashers and a subsequent judgment dismissing their claims. The Thrashers contend that the trial court erred when it would not allow them to introduce into evidence three documents, which they sought to use to impeach a portion of the testimony of Til-mond Durham. Agreeing with the Court of Appeals that the trial court’s ruling was not an abuse of discretion, we affirm.

RELEVANT FACTS

The Thrashers offered testimony to the effect that smoke and fumes from DP Enterprises’ wells invaded their property at various times, including in particular the late fall of 1992. One of the nearest wells, apparently, was a well named Steve Jones # 1. Tilmond Durham testified for the defense that in September 1992 a neighboring well operator “fractured” one of its wells — that is, according to Durham, introduced acid into the well to clear obstructions — and did so in a manner that disrupted Steve Jones # 1. Durham testified that as a result of the disruption Steve Jones # 1 temporarily ceased producing and was shut down, and so could not have been releasing hydrogen sulfide, from mid-September 1992 until late December of that year or early January 1993. Durham also indicated that the disruption to Steve Jones # 1 gave rise to litigation in the United States District Court for the Western District of Kentucky. Apparently, the attorney who represented DP Enterprises in the federal action was also listed as one of the business’s attorneys in this case. In fact, however, that attorney had virtually nothing to do with this case, and DP Enterprises was represented by an attorney who was not involved in the federal case.

At some point the Thrashers sought discovery of production data and records concerning the wells at issue, including Steve Jones # 1, from the file of the attorney who had handled the federal litigation. In complying with the request, current defense counsel noted that the documents he was supplying were not his and that he did not know how or by whom they were generated. Among those documents were the three at issue here. One of them is a graph headed “DP Enterprises, Steve Jones # 1 Unit.” It purports to show “15-Day Production Amounts” from early August 1992 until late December 1992. The graph suggests that production ceased from about September 23 until about October 14, when it resumed and continued until close to the end of the year. The other two documents purport to itemize, respectively, the production of Steve Jones # 1 before and after “Fracture of Lawrence Cross # 1.” The “after fracture” itemization indicates that in October, November, and December 1992, Steve Jones # 1 continued to produce, although at a drastically reduced rate. The documents are all headed “Steve Jones # 1,” but none of them indicates an author. The Thrashers sought to introduce this evidence of continued, albeit reduced, production to counter Durham’s testimony that Steve Jones # 1 could not have been releasing noxious fumes in the fall of 1992 because it had been shut down.

DP Enterprises objected to introduction of the three documents on the ground that they had not been authenticated, as is required by KRE 901. The trial court then excused the jury and convened an evidentiary hearing to give the Thrashers an opportunity to provide authentication. They called Tilmond Durham as a witness and asked him if he recognized the three documents. He testified that he had never seen any of them before and did not know who made them. The Thrashers did not otherwise pursue the issue at that point, so the trial court sustained the defense objection and did not allow the Thrashers to introduce the documents during their cross-examination of Durham. Later in the trial, the Thrashers renewed their request to introduce the documents and argued that the documents were “self-authenticating” because they had been provided in discovery and the providing party should not be allowed to disavow its own representations. Defense counsel noted that these documents had expressly been provided without any representations and that the onus was thus on the Thrashers to authenticate them. Despite over two years between the production of the documents and the trial, the Thrashers had taken no steps to authenticate the documents. The trial court agreed with the defense that the documents were not self-authenticating, whereupon the Thrashers introduced the three documents by avowal.

On appeal, the Thrashers renew their argument that the production of a document in discovery authenticates it, and contend that the trial court erred by ruling otherwise. Although we agree with the Thrashers that in some circumstances the act of producing a document or other discoverable matter will impliedly authenticate what is produced, we do not agree that the implication arises from the mere act of production.

ANALYSIS

Production of a Writing or Other Item in Discovery Can, But Need Not, Imply That the Item is Authentic.

As the Thrashers correctly note, the United States Supreme Court has held, in the context of the Fifth-Amendment guarantee against compelled self-incrimination, that the very act of responding to a subpoena can itself amount to incriminating admissions: “ ‘Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [target of the subpoena]. It also would indicate the [target’s] belief that the papers are those described in the subpoena.’ ” United States v. Doe, 465 U.S. 605, 613, 104 S.Ct. 1287, 79 L.Ed.2d 552 (1984) (quoting Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). If the target is in fact someone capable of authenticating the papers, then his or her belief that they are what the subpoena has described can be said to authenticate the papers implicitly. The implication need not arise, however, if the target would not be able to authenticate the papers by testifying. See, Fisher, supra (because subpoenaed taxpayer could not authenticate accountant’s report, his surrender of that report did not amount to an implied admission concerning it).

Other courts have applied this notion of implied authentication in the context of civil discovery, sometimes stating the rule quite broadly. See, e.g., South Central Bank and Trust Company v. Citicorp Credit Services, Inc., 863 F.Supp. 635, 645 (N.D.I11.1994) (“[Production of a document amounts to an implicit authentication of the document.”) (citing United States v. Brown, 688 F.2d 1112 (7th Cir.1982)); In re Greenwood Air Crash, 924 F.Supp. 1511, 1514 (S.D.Ind.1995). (“Production of a document by a party constitutes an implicit authentication of that document.”) (also citing Brown). In most of these cases, however, the person producing the document is competent to authenticate it— a private individual producing his own papers, say, or a business’s records custodian producing the business’s documents — and in those cases production can indeed be said to imply the document’s authenticity. As illustrated by Fisher, however, parties may have in their possession or control documents from other sources and even documents of unknown origin, which they would not be competent to authenticate directly. It is hard to see in those circumstances how the mere production of the document — in response, say, to a very broad request for “everything in your possession or control having to do with X”— implies anything about the extraneous document’s authenticity.

That very scenario confronted us in Bratcher v. Commonwealth, 151 S.W.3d 332 (Ky.2004). In that case, the Commonwealth produced cell phone records, one of which included an extraneous hand-written notation indicating the location where the call originated. The Commonwealth did not know the source of the notation. The defendant, however, sought to introduce the notated record to prove the location from which the phone call originated. When he was unable to authenticate the notation, he argued that it should be deemed authenticated because the opposing party had produced it in discovery. Rejecting that argument, this Court held that “[t]he mere fact that the notation was present in the discovery is not a sufficient authentication or identification so as to make the evidence admissible.” Id. at 354.

We adhere to that holding today. Under KRE 901, a document must be authenticated before it can be admitted into evidence. While the proponent’s burden is slight, it is nonetheless real and requires a showing “sufficient to support a finding that the matter in question is what its proponent claims.” KRE 901(a); Johnson v. Commonwealth, 134 S.W.3d 563 (Ky.2004). This burden may be met in any number of ways, including circumstantial evidence permitting an inference that the document is what it is represented to be. Id. As discussed above, the fact that the document was produced in discovery may give rise to an inference of authenticity where production was made by someone competent to provide authentication, but the mere fact of production does not suffice where that competence is lacking. Finally, we note that we review a trial court’s authenticity rulings for abuse of discretion. Id.

Here, the provenance of the documents the Thrashers sought to introduce is a matter of pure speculation. The maker is not identified on the face of any of the three documents, Tilmond Durham did not recognize them, and they were provided not from a known source, but from a former attorney’s file without any indication of how or where the former attorney obtained them. In these circumstances, we cannot say that the trial court abused its discretion when it ruled that the documents had not been properly authenticated and, in particular, that they had not been implicitly authenticated by being supplied in discovery.

CONCLUSION

In sum, although we agree with the Thrashers that discovery production can, in certain circumstances, implicitly authenticate the matter produced, production alone of a document does not suffice in all circumstances. The trial court was clearly within its discretion by ruling that it did not suffice here. Accordingly, we affirm the Opinion of the Court of Appeals which affirmed the judgment of the Clinton Circuit Court.

MINTON, C.J.; CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., concur. SCOTT, J., concurs in result only.


source: Caselaw Access Project

license: Public Domain

text:
    David BELSITO, Appellant, v. U-HAUL COMPANY OF KENTUCKY; Honorable James L. Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2009-SC-000550-WC.
    Supreme Court of Kentucky.
    June 17, 2010.

      Wayne C. Daub, Louisville, KY, Counsel for Appellant, David Belsito.
    Barry Lewis, Lewis and Lewis Law Offices, Hazard, KY, Counsel for Appellee, U-Haul Company of Kentucky.
   OPINION OF THE COURT

The Court of Appeals dismissed David Belsito’s petition for review of a decision of the Workers’ Compensation Board (Board) on the ground that he violated CR 76.25(8) by failing to serve the Board with a copy of the petition.

Belsito asserts on appeal that the decision was “overly harsh, inappropriate” and failed to comply with the policy of substantial compliance.

We affirm. Belsito failed to comply with CR 76.25(8) which required him to serve the Board with a copy of the petition for review “[bjefore filing.” The Court of Appeals filed his petition improperly but did not err by dismissing the appeal because he failed to file a timely petition for review that complied with CR 76.25.

The Board rendered a decision in Belsi-to’s appeal of an unfavorable decision by an Administrative Law Judge on February 27, 2009. On March 23, 2009 the Clerk of the Court of Appeals filed Belsito’s petition for review although it failed to comply with CR 76.25 by naming the Board as a party or by certifying that the Board had been served with a copy of the petition. The defendant’s response to the petition included both a defense on the merits and an argument that the appeal must be dismissed due to the procedural defects.

Belsito’s failure to comply with CR 76.25 precluded the Court of Appeals from exercising jurisdiction over the merits of his appeal. As the Court of Appeals pointed out, an appeal brought by grant of a statute is subject to strict compliance with the statute’s dictates. The appellate court’s jurisdiction is not properly invoked unless the party seeking to do so meets the conditions precedent to the appellate court’s exercise of jurisdiction. KRS 842.290 subjects the Court of Appeals’ review of the Board’s decisions to the rules of the Supreme Court. Belsito failed to comply with those rules.

SCR 1.030(3) provides that final decisions of the Board are subject to review by the Court of Appeals under procedures set forth in the Rules of Civil Procedure. CR 76.25 states, in pertinent part, as follows:

(1) General.
Pursuant to Section 111(2) of the Kentucky Constitution and SCR 1.030(3), decisions of the Workers’ Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule.
(2) Time for Petition.
Within 30 days of the date upon which the Board enters its final decision pursuant to KRS 342.285(3) any party aggrieved by that decision may file a petition for review by the Court of Appeals and pay the filing fee required by CR 76.42(2)(a)(xi). Failure to file the petition within the time allowed shall require dismissal of the petition, (emphasis added).
(4) Petition.
The petition shall designate the parties as appellant(s) and appellee(s) and shall contain the following:
(a) The name of each appellant and each appellee and the names and addresses of their respective counsel. The appellant shall specifically designate as appellees all adverse parties and the Workers’ Compensation Board.
(8) Service of Petition and Response. Before filing, a copy of the petition and any response shall be served on counsel of record, or on any party not represented by counsel, and on the Workers’ Compensation Board. Such service shall be shown by certificate on the petition or response when filed in the Court of Appeals pursuant to CR 5.02 and CR 5.03.

In Hutchins v. General Electric Company a worker failed to name the Board as a party to her petition for review but served a copy of the petition on the Commissioner of the Office of Workers’ Claims as well as on the employer and ALJ, who were named appellees. Having realized her error in failing to name the Board as an appellee shortly after the time expired for filing a timely petition, she moved to amend the petition to do so and served a copy on both the Board and the Commissioner. The Court of Appeals held that the Board was an indispensable party under CR 76.25(4)(a) and dismissed the petition because the Board was not named within the time for filing a petition. Hutchins appealed.

The sole question presented on appeal was whether the Board was an indispensable party to the petition for review. Our predecessor court determined that it was not. The court reasoned that the post-1988 versions of KRS 342.285(3) and KRS 342.290 implied a legislative intent to require the Board to comply with the Court of Appeals’ orders and decisions. Although CR 76.25(4)(a) requires a petition for review to designate the Board as a party, the court determined that the rule did not make the Board an indispensable party but that its function was to require the petitioner to serve the Board with a copy of the petition. Thus, the Court of Appeals erred by dismissing Hutchins’ petition on the ground that she failed to name an indispensable party.

Hutchins does not dispose of the present facts because the Court of Appeals dismissed Belsito’s petition for a failure to comply with CR 76.25(8) as well as with CR 76.25(4)(a). Belsito failed to serve the Board with a copy of the petition and to certify service “[b]efore filing” the petition. CR 76.25(8) clearly makes certification of service a prerequisite to filing. Not only did the Clerk of the Court of Appeals err by filing the defective petition, Belsito failed to file a petition that did comply with CR 76.25 within the time for taking an appeal. “CR 76.25, like CR 73.02, embodies a policy choice that a tardy petition for review is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance.”

The decision of the Court of Appeals is affirmed.

All sitting. All concur.

      . Smith v. Goodyear Tire and Rubber Company, 772 S.W.2d 640 (Ky.App.1989).

      . We note that this appeal is taken from an opinion and order that dismissed the petition for review based on a procedural defect rather than on the merits of the Board's decision. An argument could be made that a motion for discretionary review is the proper vehicle for seeking review in this court.

      . Board, of Adjustments of the City of Richmond v. Flood, 581 S.W.2d 1 (Ky.1978).

      . Id.

      . 190 S.W.3d 333 (Ky.2006).

      . Hutchins, Id. at 337.


text:
    Hoyle STYLES, Appellant, v. ELKHORN TRUCK PARTS & SERVICE; Honorable Chris Davis, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2009-SC-000494-WC.
    Supreme Court of Kentucky.
    June 17, 2010.

      Glenn Martin Hammond, Stephanie Letitia Kinney, Glenn M. Hammond Law Office, Pikeville, KY, Counsel for Appellant, Hoyle Styles.
    Carl Martin Brashear, Hoskins Law Offices, PLLC, Lexington, KY, Counsel for Appellee, Elkhorn Truck Parts & Service.
   OPINION OF THE COURT

A unanimous Workers’ Compensation Board affirmed an Administrative Law Judge’s (ALJ’s) refusal to delay the two-year period of the claimant’s permanent total disability benefits from the date of injury until after the date that the employer terminated voluntary temporary total disability (TTD) benefits. The Court of Appeals affirmed. At issue is whether the court misconstrued KRS 342.730(4).

We affirm. The claimant qualified for old-age Social Security benefits when he was injured. KRS 342.730(4) is unambiguous with respect to such an individual’s entitlement. It terminates “all income benefits” two years after the injury.

The claimant, Hoyle Styles, was born in November 1940. He completed only the eleventh grade and had no specialized or vocational training. His work history involved various types of manual labor, including work as a diesel mechanic. He became part owner of the defendant-employer, Elkhorn Truck Parts & Service, in 1975.

Styles received crush injuries to his hip, pelvis, lower extremities, and urinary tract on January 18, 2006, when the rear end of a truck under which he was working fell on him. The employer paid $416.69 per week in voluntary TTD benefits from the date of accident through July 17, 2007. Styles filed an application for benefits early in 2008.

Styles was 65 years old and receiving normal old-age Social Security benefits at the time of the accident. He testified that he worked until the accident because the benefits provided inadequate income on which to live. He alleged that he was permanently and totally disabled due to his injuries and stated that he sold his share of the business in 2008. The parties limited the contested issues to the extent and duration of disability.

Styles acknowledged that his receipt of old-age Social Security benefits limited the duration of his permanent income benefits to two years from the date of injury under KRS 342.730(4). He argued, however, that when KRS 342.730(l)(b) and KRS 342.730(4) are read in tandem, his permanent total disability award should not commence until the date that his employer terminated TTD benefits. In other words, he argued that he was entitled to the TTD benefits plus two years of permanent total disability benefits. The employer conceded that Styles was permanently and totally disabled but argued that KRS 342.730(l)(b) applies only to permanent partial disability.

The ALJ awarded permanent total disability benefits but limited the duration of the award to a period of two years from the date of injury under KRS 342.730(4). Having found the employer’s decision to terminate TTD benefits on July 17, 2007, to be “inexplicable,” the ALJ ordered the employer sua sponte to pay interest on past-due income benefits at the rate of 18% under KRS 342.040(1). The ALJ also denied the employer’s petition for reconsideration, stating that the early termination of TTD “was without purpose or need nor supported by the evidence.” Styles appealed the duration of benefits and the employer appealed the imposition of 18% interest.

The Board affirmed the decision to limit permanent income benefits to two years from the date of injury unanimously. A majority vacated the decision to impose 18% interest and remanded for additional findings in order to permit meaningful appellate review. The Court of Appeals affirmed.

KRS 342.730(4) provides, in pertinent part as follows:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits ... or two (2) years after the employee’s injury or last exposure, whichever last occurs.... (emphasis added).

Styles urges the court to read KRS 342.730(4) in tandem with KRS 342.730(l)(b), which provides income benefits for permanent, partial disability but suspends the 425- or 520-week benefit period during any intervening period of TTD. Having failed to convince the ALJ, Board, or Court of Appeals, he continues to argue that the statutes entitle him to the previously-paid TTD as well as to two years of permanent income benefits. We disagree for two reasons.

First, KRS 342.730(l)(b) is inapplicable to Styles’ claim because he has been totally disabled continuously, from the time his accident occurred. KRS 342.730(l)(a), which provides income benefits for temporary and permanent total disability, controls his claim. When Styles reached MMI from all of his injuries and remained unable to work, hindsight showed that his total disability, which appeared initially to be only temporary, was actually permanent from the outset.

Second, even if KRS 342.730(1)0») did apply, KRS 342.730(4) is unambiguous. It required “[a]ll income benefits” paid under Chapter 342 to terminate two years after Styles’ injury because he qualified for normal old-age Social Security retirement benefits when he was injured. “All income benefits” includes TTD benefits, permanent partial disability benefits, and permanent total disability benefits. In other words, KRS 342.730(4) limited Styles to a total of two years of income benefits, regardless of the type.

The decision of the Court of Appeals is affirmed.

All sitting. All concur.

      . See KRS 342.730(4).

      . The Court of Appeals also affirmed the Board’s decision to vacate and remand with respect to the ALJ’s decision to impose 18% interest on past-due benefits. That portion of the decision is not appealed.

      . See Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440, 444 (Ky.App.1982).

      . Young v. Johnson County Board of Education, 479 S.W.2d 638 (Ky.1972).

      . McDowell v. Jackson Energy RECC, 84 S.W.3d 71 (Ky.2002).


author: Justice CUNNINGHAM.

text:
    Robin Ken LEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000371-DG.
    Supreme Court of Kentucky.
    June 17, 2010.
    James Andrew Maples, Elizabethtown, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Mark Anthony Shouse, Special Assistant County Attorney, Elizabethtown, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

At approximately 6:50 p.m. on the evening of November 28, 2007, in Hardin County, Appellant was arrested for driving under the influence, second offense. He was given a breathalyzer test which resulted in a reading of .209.

Subsequent to the breathalyzer, Appellant requested a blood test. He was immediately taken to Hardin Memorial Hospital. There, the doctor on duty refused to give the blood test, citing in his medical records that there was no medical basis to administer the test. Appellant was then “cleared medically to go to jail....”

Appellant entered a conditional plea to DUI, second offense, in Hardin District Court after his motion to suppress/dismiss the case against him was denied. The basis for Appellant’s motion was that he had not been allowed to secure an independent blood alcohol test as required by law. The trial court ruled that the police officer had made reasonable allowances for Appellant to have a blood alcohol test and, therefore, was in compliance with the statute.

The Hardin Circuit Court affirmed the district court’s refusal to suppress the evidence. We granted Appellant’s motion for discretionary review from the order entered by the Court of Appeals denying review in that court.

The only issue before us is whether actions of the police officer were sufficient to accommodate Appellant’s right under KRS 189A.103(7) to have an independent blood test performed by “a person of his own choosing.”

The sparse facts involved in this case were apparently uncontested. Therefore, whether the trial court was in error in denying the motion to suppress is a question of law, and the standard of review is de novo. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.2006); Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).

At the heart of this issue is KRS 189A.103(7) and the Court of Appeals’ interpretation of that statute in Commonwealth v. Long, 118 S.W.3d 178 (Ky.App.2003). We cite in full KRS 189A.103(7):

After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time. Provided, however, the nonavailability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.

The Court of Appeals has adopted the “totality of the circumstances” approach to determine whether the officer made a reasonable effort to accommodate the request for independent testing. Long, id. In adopting this standard, that Court also approved the five factors previously adopted by Georgia’s appellate court in State v. Buffington, 189 Ga.App. 800, 377 S.E.2d 548 (1989). Those factors are: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities; and (5) opportunity and ability of accused to make arrangements personally for the testing. Long, 118 S.W.3d at 184.

In the Long case, the officer refused to take the subject to the hospital where she worked and could have received the test, either without charge or on credit. He also refused to allow her to make arrangements for her roommate to bring money, so she could pay for the test at the hospital of the officer’s choosing. As a result of the officer’s actions, the defendant was denied her request for an independent blood test “by a person of his or her own choosing.” Id. at 183.

From the record here, it does not appear that Appellant requested a particular medical provider for the test; therefore, the officer took Appellant to the Hardin Memorial Hospital. There, the attending physician diagnosed alcohol intoxication and declined to perform the blood test. Appellant did not ask to be taken anywhere else. There was no testimony to suggest that the officer had reason to suspect that that hospital or that doctor would refuse to perform the test. As explained in Long, all that is required of the officer is “some level of facilitation” in providing the person accused with an independent blood test. Id.

Two pivotal facts loom over this case.

First, there is no evidence that Appellant requested a second test. Had he done so, then the five factors in Long would have been implicated.

Secondly, there was no evidence of bad faith of the officer. More particularly, there was no showing that the officer knew, or even had reason to know, that the doctor at Hardin Memorial would refuse to administer the test. Obviously, the officer had no authority over the refusing physician.

Appellant correctly argues that, under the statutory scheme as interpreted by Long, individuals charged with driving under the influence are required to be informed of their right to an independent test at least two different times. Id. We do not believe that this requirement comes into play in this case since Appellant obviously knew of his rights by requesting an independent test, and by evidence that the officer attempted to accommodate this request.

For the foregoing reasons, the opinion of the Court of Appeals is affirmed.

All sitting. All concur.


author: Justice VENTERS. NOBLE, J.,

text:
    In re Michael W. JOHNSON, Debtor, and Robin Browning Brock, Trustee v. BRANCH BANKING AND TRUST COMPANY.
    No. 2009-SC-000319-CL.
    Supreme Court of Kentucky.
    June 17, 2010.

      Carole M. Friend, Friend and Associates, PSC, Georgetown, KY, Counsel for Robin Browning-Brock, Trustee.
    Christopher A. Conley, James H. Moore, III, Campbell, Woods, PLLC, Ashland, KY, Counsel for Branch Banking and Trust Company.
   Opinion of the Court by

Justice VENTERS.

Pursuant to CR 76.37(1), this Court granted the certification request of the Sixth Circuit Court of Appeals to answer the following question of Kentucky law:

In order to perfect a security interest on a motor vehicle in Kentucky, does the KRS require physical notation on the actual certificate of title as ultimately issued by the county clerk, or is perfection accomplished as and when the required paperwork and fee are submitted to the county clerk? In other words, does K.R.S. (sic) 186A.195(5), like § 186A.190, define the acts necessary for perfecting a security interest in a motor vehicle, or is § 186A.195(5) designed to operate only as a timing provision for purposes of determining priority among creditors?

For the reasons stated below, we conclude that under Kentucky law, final perfection of a vehicle lien does not occur until physical notation is made on the title pursuant to KRS 186A.190, and, accordingly, perfection is not accomplished as and when the required paperwork and fee are submitted to the county clerk. KRS 186A.195(5), on the other hand, while it does address initiation of the perfection process, is designed primarily as a timing mechanism for establishing priority among creditors. Compliance alone with the acts set forth therein does not accomplish perfection.

FACTUAL AND PROCEDURAL BACKGROUND

On February 8, 2005, Michael W. Johnson purchased and took possession of a 2005 Dodge Ram pickup truck from Jeep & Suzuki Auto World of Big Stone Gap, Virginia. To finance this purchase Johnson executed an installment sales contract and security agreement, which was assigned to Branch Banking and Trust Company (BB & T). Auto World mailed a title lien statement, application for certificate of title, and requisite fees by certified mail to the Letcher County Clerk’s office, which was received on February 22, 2005. For unknown reasons, the clerk’s office did not stamp the documents as received or upload the data into the Automated Vehicle Identification System (AVIS) database for re-cordation until March 7, 2005. The Commonwealth of Kentucky Transportation Cabinet issued a certificate of title for the truck on March 25, 2005. The title notates March 7, 2005, as the filing date for BB & T’s lien.

On May 11, 2005, Johnson filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Kentucky, Pikeville Division. Subsequently, Robin Browning Brock, as Trustee in Johnson’s bankruptcy proceeding, initiated an adversary case in the Bankruptcy Court seeking to avoid BB & T’s lien on the pickup truck as being a preferential transfer as defined under 11 U.S.C. § 547(b). BB & T responded that its lien fell within the safe-harbor exception to a preferential transfer claim as contained in 11 U.S.C. § 547(c)(8), which protects a lien perfected within twenty days of the debtor taking possession of the property.

The Bankruptcy Court found in favor of BB & T, but the United States Bankruptcy Appellate Panel for the Sixth Circuit reversed. See In re Johnson, 380 B.R. 455 (6th Cir. BAP 2007). Appeal was then taken by BB & T to the Sixth Circuit Court of Appeals. In light of the conflicting statutory provisions addressing perfection of a vehicle lien contained in KRS Chapter 186A, the Sixth Circuit certified the question of law, as stated above, to this Court.

DISCUSSION

Restated, the question we are asked to address is: “when does a vehicle lien become perfected under the provisions of KRS Chapter 186A?”

KRS Chapter 186A does not contain a definition for “perfection.” Nor does KRS Chapter 355, which codifies the Commonwealth’s version of the Uniform Commercial Code. See KRS 355.9-102 (definitions relating to secured transactions); KRS 355.1-201 (general definitions). Where no specific definition is provided for terms contained in a statute, Kentucky law instructs that “words of a statute shall be construed according to their common and approved usage.... In addition, the courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result.” Holbrook v. Kentucky Unemployment Ins. Com’n, 290 S.W.3d 81, 86 (Ky.App.2009) (quoting Kentucky Unemployment Ins. Com’n v. Jones, 809 S.W.2d 715, 716 (Ky.App.1991)); KRS 446.080(4).

The noun “perfection” is defined as “[vjalidation of a security interest as against other creditors, us[ually] by filing a statement with some public office or by taking possession of the collateral.” Black’s Law Dictionary 1173 (8th ed.2004). The verb “to perfect” is defined as “[t]o take all legal steps needed to complete, secure, or record (a claim, right, or interest); to provide necessary public notice in final conformity -with the law.” Id.

As further discussed below, KRS 186A.190 and KRS 186A.195(5) contain what may reasonably be construed as contradictory language concerning when a vehicle lien is perfected. In light of the conflicting statutory provisions, our duty is to construe the statutes so as to ascertain and give effect to the intent of the General Assembly. In determining legislative intent, we must refer to the language of the statute and are not at liberty to add or subtract from the legislative enactment or interpret it at variance from the language used. Stogner v. Commonwealth, 35 S.W.3d 831, 834 (Ky.App.2000). “When the words of a statute ‘are clear and unambiguous and express legislative intent, there is no room for construction or interpretation and the statute must be given effect as written.’ ” White v. Check Holders, Inc., 996 S.W.2d 496, 497 (Ky.1999) (quoting McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 309 (Ky.1994)).

With the foregoing principles in mind, we now turn to the language of KRS 186A.190 and KRS 186A.195(5). We first consider KRS 186A.190. KRS 186A.190 provides, in relevant part, as follows:

(1) Except as provided in subsection (4) of this section and in KRS 355.9-311(4), the perfection and discharge of a security interest in any property for which has been issued a Kentucky certificate of title shall be by notation on the certificate of title. The notation of the security interest on the certificate of title shall be in accordance with this chapter and shall remain effective from the date on which the security interest is noted on the certificate of title for a period of seven (7) years....
(2) ... the notation of security interests relating to property required to be titled in Kentucky through the county clerk shall be done in the office of the county clerk of the county in which the debtor resides....
Notwithstanding the existence of any filed financing statement under the provisions of KRS Chapter 355 relating to any property registered or titled in Kentucky, the sole means of perfecting and discharging a security interest in property for which a certificate of title is required by this chapter is by notation on the property’s certificate of title under the provisions of this chapter.... In other respects the security interest is governed by the provisions of KRS Chapter 355.

(emphasis added).

The plain language of KRS 186A.190 unambiguously establishes that the “sole means” of perfecting a security interest in a vehicle in Kentucky is by notation of the lien on the vehicle’s certificate of title. Constrained by the obligation to interpret the language as written, we conclude that perfection does not occur until the lien is noted on the title certificate. If notation on the certificate of title is the sole means of perfection, it follows that the tendering of fees and submission of paperwork under the procedures of KRS 186A.195(5) do not alone accomplish perfection.

Our interpretation of KRS 186A.190 is strengthened because it harmonizes with the language of KRS 186A.195(5). KRS 186A.195(5), provides as follows:

The security interest noted on the certificate of title shall be deemed perfected at the time the security interest attaches (KRS 355.9-203) if the secured party tenders the required fees and submits a properly completed title lien statement and application for first title ... to the appropriate county clerk within twenty (20) days of attachment. Otherwise, the security interest shall be deemed perfected at the time that such fees are tendered and such documents are submitted to the appropriate county clerk,

(emphasis added).

The interpretation of the KRS 186A.195(5) urged upon us by BB & T (that KRS 186A.195A provides the time of perfection) fails to give effect to the statutory language limiting its effect to “[t]he security interest noted on the certificate of title[.]”

Under the language contained in the first sentence of KRS 186A.195(5), it is the security interest noted on the certificate of title that is deemed perfected as of the date the security interest attached if the required paperwork and fees were filed within twenty days of attachment. By the statute’s plain language, this requires that there be notation on the title before the retroactivity provisions become operative. As such, perfection cannot be said to occur until notation, though when notation does occur, the perfection may then be deemed to have occurred at an earlier date. In this vein, if the title is never issued, or if the title is erroneously issued without notation, perfection does not occur, which is a further reason why our interpretation is compelled.

It should be noted that our construction of KRS 186A.190 and KRS 186A.195(5) produces a result consistent with prior law addressing the perfection of a security interest in a vehicle. See General Motors Acceptance Corp. v. Hodge, 485 S.W.2d 894 (Ky.1972) (Failure of county court clerk to note automobile finance company’s lien on registration receipt issued to person who sold automobile to defendant rendered the lien unenforceable against defendant who purchased the automobile without notice of the hen); Kentucky Finance Co. v. Spradlin, 717 S.W.2d 843 (Ky.App.1986) (Secured creditor who relied upon debtor’s certificate of title, without knowledge debt- or had forged county clerk’s name in order to deceive creditor as to existence of prior hen, was entitled to rely upon certificate for perfection and priority). Moreover, our interpretation is consistent with the result previously reached by the Court of Appeals under current law in Hiers v. Bank One, 946 S.W.2d 196, 198 (Ky.App.1996) (KRS 186A.190(2) and KRS 355.9-302(3) clearly and unambiguously provide that, as to any property for which a certificate of title is required by KRS Chapter 186A, a security interest in that property may be perfected or discharged only by a notation in that vein on the certificate of title.)

In summary, under Kentucky law, perfection of a vehicle hen does not occur until physical notation is made on the title pursuant to KRS 186A.190, and, accordingly, perfection is not accomphshed as and when the required paperwork and fee are submitted to the county clerk. KRS 186A.195(5), while it does address initiation of the perfection process, is designed primarily as a timing mechanism for establishing priority among creditors under which perfection may be deemed to have occurred prior to notation on the title.

The law is hereby certified to the Sixth Circuit Court of Appeals.

MINTON, C.J., ABRAMSON, SCHRODER and SCOTT, JJ., concur. NOBLE, J., dissents by separate opinion in which CUNNINGHAM, J., joins.

NOBLE, J.,

Dissenting:

Respectfully, I dissent.

I believe the majority view misreads the statutes at issue in this certification of law question from the Sixth Circuit. First, it is not clear on which date perfection would occur, either by operation of law or fact, under the majority’s view, though I think the statutes are clear as to when perfection, as a matter of law, occurs. I also do not agree that KRS 186A.195 was enacted primarily to deal with priorities among multiple liens, but I believe it is instead a general timing statute, applicable to any question about timing of perfection in titled vehicles, including the question presented in this case.

Chapter 186A is named the “Automated Motor Vehicle Registration System.” Because Kentucky has chosen to use an efficient, automated method of requesting and issuing vehicle titles (the Automated Vehicle Identification System, commonly called AVIS), certain timing issues inherent in the use of an automated system require the legislature to draft accordingly, and outside the Uniform Commercial Code, Chapter 355 of the Kentucky Revised Statutes.

Using the automated title system creates a timing problem that the legislature recognized would impact vehicle sales under the Uniform Commercial Code. This problem manifests itself through the necessity of having a clerk log the requisite documents into AVIS, and the inability to fine tune input into AVIS that adequately covers the nuances of commercial sales law. To harmonize with the commercial code, the legislature enacted KRS 186A.195 to allow perfection to occur as it normally would, but for the timing problems inherent in using an automated system such as AVIS.

KRS 186A.190 establishes how “the perfection and discharge of a security interest” in titled property must be established: “by notation on the certificate of title,” which “shall be in accordance with this chapter.” The latter language, however, is a flag to indicate that other provisions in the chapter come into play. This statute standing alone does not say anything about when a security interest is perfected. That is left to KRS 186A.195.

KRS 186A.195 is not specifically about priorities. By its heading, it purports to govern “perfection of a security interest.” At subsection (5), the statute deals with time, and states that the security interest noted on the title “shall be deemed perfected at the time the security interest attaches,” (emphasis added), as defined by KRS 355.9-203. That statute says the security interest attaches when it is enforceable against the debtor: when value is given, the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party, and the debt- or has authenticated a security agreement that provides a description of the collateral. See KRS 355.9-203(2). Ordinarily, this occurs upon the debtor’s entry into a valid contract for purchase of the vehicle and taking possession of the vehicle.

However, KRS 186A.195(5) also adds the requirement that the secured party must have tendered the required fees and submitted a properly completed title lien statement and application for first title if the vehicle is new, or the certificate of title if it is used, before the date of attachment can be deemed to be the date of perfection. Thus, when the perfection occurs is determined in part based on completion of the elements listed in KRS 186A. 195(5). That certainly will be a date earlier than the date on which the Department of Transportation actually makes a notation on the title. These steps listed in this statute all precede the submission of a request for title through AVIS by the county clerk.

Usually, the county clerk submits the title request to AVIS the day the above documents are filed by the lienholder, and that is the date shown on the title for perfection. But when the clerk delays, as happened here, the date on the title will come back from AVIS showing the date the clerk logged the documents into AVIS, which will be different than when the security interest attached. This is where the operation of KRS 186A.195(5) comes into play.

If everything has been tendered to the clerk within 20 days of attachment, by operation of law perfection will be deemed to have occurred as of the date of attachment. This date is readily ascertainable from the documents tendered.

If the title lien statement and application for first title or title are filed and the appropriate fees are paid after 20 days, then perfection will be deemed to have occurred “at the time” all three have been tendered to the county clerk. It is notable that the legislature did not state that the operative date was when the clerk filed the documents into AVIS, but rather when the materials were actually given to the clerk.

Thus there is no conflict between KRS 186A.190 and KRS 186A.195(5). Indeed, the latter statute complements the first, and establishes the date of perfection (when) as the date of attachment when all necessary items are tendered to the clerk. However, I agree with the majority that before a proper time of perfection can be established, there must be a notation of perfection on the title itself. That is because notation of perfection will not occur until the fees have been paid, and the lien statement and application for title, or title if the vehicle is used, have been tendered to the clerk, because the clerk will not input anything into AVIS until then. The date used in the notation of title will be an adequate notation that there actually is perfection.

Consequently, the notation of perfection date on the title will be the date the clerk enters the necessary documents into the AVIS system. However, the legal date of perfection will be deemed to be either the date of attachment if documents are tendered within 20 days of attachment or the date all documents are actually tendered if after 20 days of the date of attachment. Thus while the date noted on the title will probably not be the legal date of perfection, it is necessary that it be done so that the legal date of perfection can be fixed.

In situations such as this one, KRS 186A.195(5) determines the legal date of perfection. Naturally, it would also answer questions of priority regarding titled vehicles, as it fixes the time of perfection, but that is not an issue in this case.

CUNNINGHAM, J., joins.

      . While we are directed by the parties to the definition of "perfection" as relevant to federal bankruptcy proceedings, we are asked to answer the certified question under state law — not to answer the question by reference to the Bankruptcy Code. We accordingly do not rely upon the Code’s specialized definition of perfection.

      . "A security interest attaches to collateral when it becomes enforceable against the debt- or with respect to the collateral....” KRS 355.9-203(1).

      . Similarly, while the second sentence of KRS 186A. 195(5) refers simply to "the security interest,” in context, it must, like the first sentence, be read to mean "the security interest noted on the certificate of title.” Thus, for filings with the clerk more than twenty days after attachment, as previously explained, perfection of the lien does not occur until title notation, at which time perfection would be deemed retroactive to the time of the submission of the paperwork and tendering of fees with the county court clerk.


author: Justice SCHRODER.

text:
    Robert B. TAYLOR, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000180-DG.
    Supreme Court of Kentucky.
    June 17, 2010.

      Linda Roberts Horsman, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, David Bryan Abner, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

This appeal involves a case of first impression in Kentucky. The issue is whether an individual who knowingly takes contraband into a detention facility, in violation of KRS 520.050(l)(a), has performed a voluntary act despite entering the facility involuntarily. We agree with the Court of Appeals that a person who knowingly takes contraband into a detention facility does so voluntarily, even when entering the facility involuntarily, and that there is no violation of the Fifth Amendment right against self-incrimination. Hence, we affirm.

KRS 520.050 (promoting contraband in the first degree) creates a Class D felony when a person “knowingly introduces dangerous contraband into a detention facility or a penitentiary_” Taylor was arrested for public intoxication. After the arrest, and before entering the Montgomery County Regional Detention Center, the officer asked Taylor twice if he had any marijuana on his person. The officer also warned Taylor that taking marijuana into a detention facility could result in felony charges. Both times Taylor denied he had marijuana, and a pat down did not reveal any contraband. Taylor was taken inside and turned over to the jailer, who strip searched him. A small packet of marijuana was found tucked in Taylor’s buttocks.

Taylor was tried for promoting contraband in the first degree. He moved to suppress the marijuana, and also moved for a directed verdict at the close of the Commonwealth’s and the defense’s case-in-chief. The trial court denied the motions. Taylor was convicted of promoting contraband in the first degree and received a one-year sentence. The Court of Appeals, although finding the issue of whether Taylor performed a voluntary act to be unpre-served, nevertheless discussed the issues and affirmed. This Court granted discretionary review. Taylor requests that, if this Court opines the issue of whether the act was voluntary was not fully preserved, it conduct a palpable error review under RCr 10.26.

Taylor’s argument on appeal is that a person does not knowingly and voluntarily take contraband into a detention facility when he is taken involuntarily into the facility. We disagree. A person who is aware of the contraband on his or her person, who is taken involuntarily into a detention facility, satisfies the “knowingly” element of KRS 520.050(l)(a). As for Taylor’s argument that his act was involuntary, an act is deemed voluntary when “performed consciously as a result of effort or determination and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.” Taylor voluntarily took possession of and hid the contraband, and he could have disposed of it before entering the facility.

What happened after Taylor’s arrest for public intoxication (his possession of the marijuana) was not the result of improper state action, but the consequence of his simultaneous illegal actions. Granted, Taylor was in a “Catch-22.” If he disclosed the contraband before he entered the facility, he faced a possession charge. If he did not disclose the contraband and it was discovered in the facility, he faced a charge for knowingly taking it in the facility. But this does not make Taylor’s action involuntary.

This is a case of first impression in Kentucky. Taylor cites an Ohio Court of Appeals case, State v. Sowry, as supportive of his argument. In Sowry, the Court of Appeals opined that a person who was involuntarily brought into a detention facility could not be deemed to have voluntarily brought in contraband hidden on his person. However, a recent Ohio Supreme Court decision rejected this reasoning and opined that a person involuntarily taken into a detention facility, knowing he has contraband on his person, has committed a voluntary act in carrying in the contraband. Likewise, appellate courts in other jurisdictions have opined that a person who knowingly takes contraband into a detention facility does so voluntarily, even when the person is taken in involuntarily. We believe that this outside authority is persuasive. We opine the trial court did not err in denying a directed verdict on this issue, thus we need not review for a palpable error under RCr 10.26.

Taylor also asserts that he was not free to, nor could he have, disposed of the contraband before he entered , the facility because to do so would have incriminated him in violation of his Fifth Amendment rights. Taylor had a choice because of his knowing and voluntary possession of marijuana: he could waive his Fifth Amendment right and not face the promoting contraband charge, or he could not waive his Fifth Amendment right and face a separate (and in this case, a more serious) charge if caught. His conscious choice was a gamble, and he lost. The Fifth Amendment does not entitle Taylor to a pass, or convert his voluntary illegal action of possession to an involuntary action when he is involuntarily taken into the facility. Asserting his right to not incriminate himself does not prevent the further investigation, nor the use of the fruits of that investigation. Likewise, a number of courts have rejected the notion that there is a right to be protected from having to make difficult choices regarding whether to invoke the Fifth Amendment right against self-incrimination.

For the foregoing reasons, the opinion of the Court of Appeals is affirmed.

All sitting. All concur.

      . For all crimes other than absolute liability offenses, KRS 501.030 requires both a culpable mental state and a voluntary act.

      . KRS 520.050(l)(a). KRS 520.010(3) includes marijuana as dangerous contraband.

      . There is some dispute as to whether police read Taylor his Miranda rights.

      . Other charges in this case are not at issue in this appeal.

      . See KRS 501.020(2) (“A person acts knowingly ... when he is aware that his conduct is of that nature or that the circumstance exists.”)

      . KRS 501.010(3).

      . In this case it was the difference between a misdemeanor and a felony, but depending on the contraband, it could be the difference between felonies.

      . 155 Ohio App.3d 742, 803 N.E.2d 867 (2004).

      . State v. Cargile, 123 Ohio St.3d 343, 916 N.E.2d 775 (2009).

      . See State v. Alvarado, 219 Ariz. 540, 200 P.3d 1037 (Ariz.Ct.App.2008); State v. Winsor, 110 S.W.3d 882 (Mo.Ct.App.2003); Brown v. State, 89 S.W.3d 630 (Tex.Crim.App.2002).

      . See Cargile, 916 N.E.2d at 777-78 ("The constitutional right to remain silent does not confer upon a defendant the privilege to lie, or the right to be protected from having to make difficult choices regarding whether to invoke the right to remain silent.") (internal citations omitted); People v. Ross, 162 Cal. App.4th 1184, 1191, 76 Cal.Rptr.3d 477 (2008) (disclosure of weapon possession upon booking into detention facility); State v. Canas, 597 N.W.2d 488, 496 (Iowa 1999), overruled on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001) (controlled substance in a detention facility). But see State v. Thaxton, 190 Or.App. 351, 79 P.3d 897 (2003); State v. Tippetts, 180 Or.App. 350, 43 P.3d 455 (2002).


author: Justice VENTERS. SCOTT, J., CUNNINGHAM, J.,

text:
    Dana Tony BANKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000161-MR.
    Supreme Court of Kentucky.
    June 17, 2010.

      Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, William Bryan Jones, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Dana Tony Banks, appeals from a judgment entered upon a jury verdict by the Hardin Circuit Court convicting him of nine counts of first-degree sodomy, five counts of incest, and four counts of first-degree sexual abuse. He was sentenced to a total term of life imprisonment. Banks now appeals as a matter of right. Ky. Const. § 110(2)(b).

Before us, Banks raises various arguments relating to the sufficiency of the evidence and the jury instructions. More specifically he contends that he was entitled to a directed verdict on the sodomy charges, that the sodomy instructions were insufficiently differentiated, that he was entitled to a directed verdict on the incest charges, and that the jury was improperly instructed on the sexual abuse convictions. For the reasons stated below, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Banks has two daughters, C.B., born on July 15, 1996, and T.B., born on April 20, 1995.

On June 9, 2005, Kentucky State Police received a complaint of possible sexual crimes committed by Banks against his two daughters. Later that day, Banks made a statement to Detective David Norris during which he admitted to committing sex acts upon the children, including acts of sodomy. He confessed that he engaged in criminal sexual conduct against the children for about a three-year period extending from March 2002 to March 2005. Detective Norris asked Banks how many times this occurred and Banks responded about six times with each daughter. During the course of the investigation, Banks made additional statements confessing to sexual crimes committed against the children.

On February 27, 2007, Banks was indicted on twelve counts of first-degree sodomy, six counts of incest, and six counts of first-degree sexual abuse. As further discussed below, at trial the children testified generally to instances of sexual abuse, but for the most part were unable to recount specific dates or distinguishing details concerning the crimes. Banks’s confessions were admitted, but those statements likewise contained little in the way of distinguishing details, although they did identify that the last occasion occurred in March 2005 on an occasion when he ingested ecstasy. The medical evidence was inconclusive regarding whether the children had been sexually abused. After the Commonwealth completed its ease, Banks rested without calling any witnesses on his behalf.

Before the case was submitted to the jury, the Commonwealth dismissed two counts of first-degree sodomy, one count of incest, and two counts of first-degree sexual abuse. The jury returned guilty verdicts on nine of the ten remaining counts of first-degree sodomy, five counts of incest, and four counts of first-degree sexual abuse. The jury recommended punishments of life imprisonment for each sodomy count, ten years’ imprisonment for each incest count, and five years’ imprisonment for each sexual abuse count, and recommended that the sentences run concurrently. On February 24, 2009, the trial court entered a judgment consistent with the jury’s verdict and sentencing recommendation. This appeal follows.

I. SUFFICIENCY OF THE EVIDENCE — SODOMY

Banks contends that the Commonwealth presented insufficient evidence to convict him of the nine sodomy counts, and thus the trial court erred by denying his motion for a directed, verdict. Banks was indicted for twelve counts of sodomy, six against each child. One count against each child was dismissed prior to submission of the case to the jury. The jury acquitted Banks of one of the remaining ten counts, resulting in a total of nine sodomy convictions.

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. Id. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserve for the jury questions as to the credibility and weight to be given to such testimony. Id. “On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983)). “[T]here must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” Benham, 816 S.W.2d at 186-87.

The evidence presented to support the sodomy charges is as follows. Detective Norris testified concerning his June 2005 interview with Banks and played an audio tape of the statement. In this statement, Banks described sexually abusing the children. Banks testified that he would go into the children’s rooms while they were asleep, start touching and rubbing them, and then commit acts of sodomy against them. Specifically, he confessed that he would digitally penetrate, make oral contact with, and lay his penis on them anuses. Banks stated that he did this over a three-year period. The one specific date he identified as engaging in the conduct was March 17, 2005, on an occasion when he ingested ecstasy. When asked how many times the abuse occurred over the three-year period, Banks responded about six times with each child.

T.B. had a very difficult time testifying. She testified that “things happened” when she was eight or nine and attending a certain elementary school. Due to her difficulty testifying she was excused from the stand but later returned. With continued difficulty she then testified that Banks “raped” her while the family was living in Elizabethtown. She testified that the “rape” happened “at night” when no one else was around. She said she was around six when it happened. T.B. also testified to an occasion when she felt something “wet” on her “rear end.” She stated that she was sure that what she felt was Banks’s tongue. T.B. also testified regarding an occasion in the first grade when she had to stay home from school because of an eye infection and Banks did something to her, but did not describe specific acts which occurred on that occasion. She also referred to an occasion when she and her sister had scratched up their bed, but again did not provide specifies about what Banks did on that occasion.

C.B. testified that she had witnessed “something happen” between T.B. and Banks in her room. She further testified that things would happen between her and Banks “during the day” and at night, but she could not remember how many times those things happened. She also testified that Banks “raped her” when she was seven or eight; she at first said she was not sure how many times it happened, but then testified it happened “once a day and just one time at night.” C.B. testified that she would be asleep when she would feel Banks begin to touch her “with his hands and with his private.” She testified that Banks would “put his private inside” the “private” between her legs and “sometimes stuck his hand up her butt.” She then testified concerning an event that occurred in her parents’ room during which she witnessed Banks “put his private inside” T.B., she thought “in the back.” She did not remember how old she was but believed T.B. was six or seven at the time.

Pursuant to Benham, we assume Banks’s confession to be true; that is that he committed acts of sodomy against each of his daughters as admitted in his statement to police. Banks confessed that he did this on about six occasions against each daughter, and from this we draw the inference that he did, in fact, commit a total of twelve acts of sodomy against his children during the three year period from March 2002 to March 2005. C.B. and T.B. corroborated Banks’s confession with their testimony of multiple instances of abuse. Upon drawing all inferences from the evidence in favor of the Commonwealth, we cannot conclude that it was unreasonable for the jury to have found the defendant guilty of nine counts of sodomy. There was sufficient evidence presented by the Commonwealth to submit the case to the jury. Id. The trial court did not err by denying Banks’s motion for a directed verdict on the sodomy charges.

II. THE SODOMY INSTRUCTIONS SUFFICIENTLY DIFFERENTIATED BETWEEN INCIDENTS EXCEPT IN TWO INSTANCES

Citing Miller v. Commonwealth, 283 S.W.3d 690 (Ky.2009), Banks next contends that the jury instructions pertaining to the sodomy counts insufficiently distinguished the incidents so as to assure an unanimous verdict as to the convictions.

“[I]t is now settled that a trial court errs in a case involving multiple charges if its instructions to the jury fail to factually differentiate between the separate offenses according to the evidence.” Id. at 695. If the jury instructions do not include factual differentiation between the charges, it is reversible error, even if the error is unpreserved. Id. See also Harp v. Commonwealth, 266 S.W.Sd 813 (Ky.2008), Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky.2008) (overruled on other grounds by Harp, 266 S.W.3d 813); and Miller v. Commonwealth, 77 S.W.3d 566 (Ky.2002).

In reviewing the sodomy instructions, we first list those relating to T.B., followed by those relating to C.B. In the caption of each instruction the indictment count no. and the instruction no. were listed; that information is indicated as the lead-in to each instruction presented below. Further, each jury instruction began with the preamble “You will find the Defendant guilty of Firs1>-Degree Sodomy under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:”; and concluded with the paragraph “AND B. That at the time of such intercourse, [the child] was less than 12 years of age.” We omit this repetitive language. Finally, language that is distinguishing in factual detail from the other sodomy instructions is emphasized.

T.B. Sodomy Instructions

Count 1/ Instruction No. 5 — A. That in this county during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005, and when T.B. was age 6, while T.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with T.B. by placing his tongue on her anus;

Count 21 Instruction No. 6 — A. That in this county on or about the 17th day of March, 2005, while T.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with T.B. by making oral contact with T.B. anus.

Count 3/ Instruction No. 7 — A. That in this county during a period of time in 2005, while T.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with T.B. by licking her anus.

Count 71 Instruction No. 11 — A. That in this county during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005, while T.B. was in her father’s room and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with T.B. by placing his penis in her anus. *BANKS WAS ACQUITTED OF THIS COUNT.

Count 8/ Instruction No. 12 — A. That in this county during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005, while T.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with T.B. by touching his penis to her anus.

C.B. Sodomy Instructions

Count kl Instruction No. 8 — A. That in this county during a period of time in 2005, while C.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with C.B. by licking her anus. *THIS INSTRUCTION IS THE SAME AS INSTRUCTION 10.

Count 5/ Instruction No. 9 — A. That in this county during a period of time from the 17th day of March 2002, through the 17th day of March 2005, while C.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with C.B. by licking her anus.

Count 6/ Instruction No. 10 — A. That in this county during a period of time in 2005, while C.B. was sleeping and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with C.B. by licking her anus. *THIS INSTRUCTION IS THE SAME AS INSTRUCTION 8.

Count 10/ Instruction No. 14 — A. That in this county during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005, while C.B. was in her father’s room and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with C.B. by placing his penis in her anus.

Count 11/ Instruction No. 15 — A. That in this county during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005, while C.B. was sleeping in her room and before the finding of the Indictment herein, he engaged in deviate sexual intercourse with C.B. by touching his penis to her anus.

The jury instruction conference between the trial court, defense counsel, and the Commonwealth demonstrated an awareness that differentiation between the instructions was required to comply with Kentucky law, and this concern was translated into the jury instructions, beginning •with the differentiation of each instruction by relating it to a separate count in the indictment.

Banks argues that there is overlap in Instructions No. 6 and No. 7 in relation to the time period when the criminal acts occurred. Instruction No. 6 refers to the act addressed in that instruction occurring “on or about the 17th day of March, 2005,” and Instruction No. 7 refers to the act occurring “during a period of time in 2005.” Obviously, there is an overlap between the two time periods. Additionally, the acts described — “by making oral contact with T.B.’s anus” in Instruction No. 6, and “by licking her anus” in Instruction No. 7 — are for all intents and purposes synonymous. Banks contends that this overlap in time and conduct violates the dis-tinguishment requirements of Miller. We agree.

An examination of Miller discloses that its principal purpose is to ensure that the instructions for each count are distinguishable enough to permit the jury to relate each verdict to a specific crime shown by the evidence. Clearly, simply varying the words of the instruction for each count, without any substantive difference in meaning, does not satisfy Miller. However, the test is not simply one of mutual exclusivity. So long as the instruction for each count enables the jury to identify the instruction with a specific crime established by the evidence and avoids the likelihood of confusion with other offenses presented against defendant in the same trial, then the instructions are adequately differentiated. Here, this standard was not met.

Except for the more specific date provided in Instruction 6, Instruction 6 and Instruction 7 are essentially identical. The conduct described is the same. There is no substantive difference between “making oral contact” and “licking.” Moreover, “on or about the 17th day of March, 2005,” as stated in Instruction 6, is encompassed within “during a period of time in 2005” as stated in Instruction 7. Because of this multiple overlapping, there is insufficient differentiation to meet the requirements as explained in Miller.

While the Instructions are also differentiated by reference to the Count Number in the indictment, and the language of the indictment provided that the conduct identified in each count occurred “at a time different from” the conduct charged in any other count, it is unreasonable to suppose that the fleeting reference to this differentiation during the reading of the indictment would be sufficiently noted by the jury to instill confidence that the difference was remembered by the jury and considered in its deliberations. Under Miller, we would expect the instructions alone to adequately differentiate the offenses so that one need not cross-reference the indictment, which the jury would never see. In this vein, we note that if Instruction No. 7 had simply incorporated the language “at a time in 2005 other than March 17,” there would have been sufficient differentiation to have satisfied the requirements of Miller. As such, we would counsel, as a final assurance of differentiation, that trial courts use this construct where additional clarity is needed.

While Instruction No. 6 and Instruction No. 7, in combination, failed to satisfy the requirements of Miller, nonetheless, it is necessary only that we vacate the conviction related to Instruction No. 7. By clearly identifying March 17, 2007, as the date of the crime in Instruction No. 6, we may have confidence that the jury unanimously voted that an act of sodomy occurred on that date. However, with respect to Instruction No. 7, we cannot say with confidence that one or more jurors did not vote for conviction under that Instruction based upon the March 17, 2005, conduct. We accordingly vacate the conviction related to Instruction No. 7. Upon retrial, if any, for the charge related to Instruction 7, the trial court should assure that it is properly differentiated from any other charge.

An examination of the other individual sodomy instructions for T.B. reveals that there is complete differentiation between all instructions in terms of date, location, T.B.’s age, and conduct. Consequently, unlike Miller, there is an absolute distinction between the charges in these instructions so as to remove any chance that the jurors were unable to distinguish between the multiple counts of sodomy. In light of the differentiation in the instructions, Banks was not denied a unanimous verdict in relation to these sodomy convictions. There was no error in the sodomy instructions relating to T.B.

Similarly, an examination of the sodomy instructions referring to C.B. discloses a comprehensive distinction among the instructions with the exception of Instruction 8 and Instruction 10. These two instructions are identical, and thus fall within the prohibition as explained in Miller. As such, we are constrained to reverse the convictions relating to those two instructions. Upon retrial, if any, instructions upon these two counts should be differentiated. There was no error in the remaining sodomy instructions, and those convictions are affirmed.

III. BANKS WAS NOT ENTITLED TO A DIRECTED VERDICT ON THE INCEST CHARGES

Banks next contends that he was entitled to a directed verdict on the three counts of incest against C.B. contained in Instructions 20-22 (Counts 16-18 of the indictment). He argues that the instructions define the conduct supporting the charges as Banks having had “deviate sexual intercourse” with C.B., whereas C.B. testified to instances of vaginal sexual intercourse with her.

Banks argues that C.B. differentiated between her vagina, calling it “between her legs” and her anus, calling it “below her back,” and described that Banks “put his private” “between her legs,” thus describing sexual intercourse, not “deviate sexual intercourse.” He further argues that C.B. testified that Banks “raped” her, which in its normal sense describes vaginal intercourse.

At trial, the Commonwealth represented that incest Instruction 20/Count 16 referred to sodomy Instruction 4/Count 8; that incest Instruction 21/Count 17 referred to sodomy Instruction 10/Count 6; and that incest Instruction 22/Count 18 referred to sodomy Instruction 14/Count 10. Each of these instructions refers to deviate sexual intercourse.

As previously set forth, we review Banks’s argument claiming entitlement to a directed verdict on the three incest counts pursuant to the standard contained in Benham.

Banks’ argument is unpersuasive because it focuses solely on C.B.’s testimony. However, Banks confessed to six instances of sodomy against C.B., including instances of oral sodomy as described in Instructions 20-22. Upon accepting Banks’s confession as trae and drawing all consequent inferences in favor of the Commonwealth, we are persuaded that the evidence was sufficient to present the charges to the jury.

Guilty verdicts were returned under Instructions 4, 10, and 14, the sodomy charges underlying the incest Instructions. However, as previously discussed, Instruction 10 was identical and redundant with Instruction 8, thus requiring that the sodomy conviction under Instruction 10 be vacated pursuant to Miller, 283 S.W.3d 690. Because the underpinning of incest Instruction 21 was the conduct relating to Instruction 10, we are constrained to similarly vacate the incest conviction associated with Instruction 21. In the event of retrial, upon the presentation of appropriate proof, the incest charge relating to Instruction 21, may again be submitted to a jury. Id.

TV. THE JURY WAS PROPERLY INSTRUCTED ON THE SEXUAL ABUSE CHARGES

Banks’s final argument is that the jury was improperly instructed on the four sexual abuse convictions because the conduct supporting these charges was merely a continuing course of the conduct supporting the sodomy and incest charges. He argues the preliminary rubbing and touching supporting the sexual abuse charges was part of a single continuous act culminating in the acts of sodomy, and, accordingly, those acts merged with the sodomy and did not constitute a separate crime.

In Bills v. Commonwealth, 851 S.W.2d 466 (Ky.1993), the defendant was charged with, among other things, sodomy and first-degree sexual abuse. The defendant forced the victim to drive to a remote area where he removed her clothing and forced her to perform oral sex on him. We held that the acts of removing the clothing and the forced sodomy did not merge, stating, “The act of touching while removing the clothing was totally unnecessary and independent of the act of oral sodomy.” Id. at 471-472. Similarly, the acts of touching and rubbing preliminary to the sodomy in this case were totally unrelated to the actual sodomy. The abusive acts of touching and rubbing did not merge into the acts of sodomy, and Banks was properly convicted of the first-degree sexual abuse charges. Id.

Banks’ reliance on Stark v. Commonwealth, 828 S.W.2d 603 (Ky.1991), (overruled on other grounds by Thomas v. Commonwealth, 931 S.W.2d 446 (Ky.1996)), is misplaced. In Stark we held that two robbery charges would not lie when business funds and an individual’s property were taken during a single robbery incident on the basis that “[t]his is simply a continuing course of conduct and a single criminal impulse.” We stated:

Herein we have but a single act constituting a single offense and violation of only one statute (KRS 515.020). When the impulse is single, only one indictment lies. The present interpretation of Section 13 of the Kentucky Constitution which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two or more offenses. Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990). The prohibition extends to indicting appellant both for robbery in the first degree of Mr. Muth, individually, and indicting appellant for the robbery of Mr. Muth in his counterpart status as Sav-a-Step Food Mart.

Id. at 607.

In Stark, by any standard there was but a single act by the defendant, during which two forms of property (personal and business) were stolen. In contrast, as noted above, in the present case two unrelated acts occurred: the acts of rubbing and touching, which comprise the first-degree sexual abuse convictions, and the separate and unrelated acts of sodomy, which comprise the first-degree sodomy convictions. As such, Stark is not applicable to the present facts.

Y. CONCLUSION

For the foregoing reasons the judgment of the Hardin Circuit Court is affirmed in part, reversed in part, and remanded for additional proceedings consistent with this opinion.

MINTON, C.J., ABRAMSON, NOBLE, and SCHRODER, JJ., concur.

SCOTT, J., concurs in part and dissents in part by separate opinion, in which CUNNINGHAM, J., joins.

CUNNINGHAM, J., concurs in part and dissents in part by separate opinion.

SCOTT, J.,

concurring in part and dissenting in part:

Although I concur with the majority on the other issues, I must dissent as the instructional error here was absolutely harmless. I say this because Appellant admitted to twelve counts of sodomy with the children, was tried on ten of them (the other two having been dismissed during trial) and was convicted of nine of them. If he admitted to twelve, but was only convicted of nine, how could a “unanimity error” ever be harmful? In my opinion, it could not. Thus, I dissent on this issue and would affirm the conviction.

CUNNINGHAM, J., joins.

CUNNINGHAM, J.,

concurring in part and dissenting in part:

Justice Venters does an excellent job of sorting out a confusing array of numerous counts and instructions. I concur for the most part, but dissent as to the Court’s reversal on instructions 8 and 10. These instructions were identical, but there was sufficient evidence to convict on both. And since the jury convicted on both, I see no unanimity problem as to these two instructions. Although they were overlapping, as opposed to identical, I would apply the same logic to instructions 6 and 7. Again, there was sufficient and differential evidence on both, and the jury convicted on both. This is consistent with my dissent in Miller v. Commonwealth, 283 S.W.3d 690 (Ky.2009). I concur in every other aspect of the opinion and also commend the trial court’s work in dealing with a complex set of instructions.

      . In his brief Banks addresses his sufficiency of evidence argument on the sodomy counts and his challenge to the sodomy instructions together under Argument I. For clarity, we address the two arguments in separate sections. Banks' arguments concerning the sodomy instructions are addressed in the following section.

      . RCr 9.60 provides that a confession not made in open court will not warrant a conviction unless corroborated by other proof that such an offense occurred. Here, the children's testimony provides the necessary corroboration. Lofthouse v. Commonwealth, 13 S.W.3d 236 (Ky.2000) (requirement that defendant’s out-of-court statements must be corroborated to support conviction relates only to proof that a crime was committed, not to whether the defendant committed it; once the corpus delicti has been established, the fact that the defendant committed the crime can be proven entirely by his own confession).

      . He also refers to an overlap in time with respect to Instruction No. 5, which refers to "during a period of time from the 17th day of March, 2002, through the 17th day of March, 2005"; however, Instruction No. 5 also limits the time period for the act to when T.B. was age six. T.B. was born April 20, 1995, and thus the act referred to could not have occurred in 2005. Because of the age limitation, there was no time overlap between Instruction 5 and Instructions 6 and 7.

      . One count of first-degree sexual abuse against each child was dismissed by the Commonwealth prior to submission to the jury.