text:
    Princess CARVER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001404-MR.
    Court of Appeals of Kentucky.
    Oct. 8, 2010.
    Rehearing Denied Dec. 1, 2010.

      Cicely Jaracz Lambert, Assistant Appellant Defender, Louisville, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Christian K.R. Miller, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before ACREE, KELLER and LAMBERT, Judges.
   OPINION

ACREE, Judge:

Princess Carver appeals the June 17, 2008 judgment of the Jefferson Circuit Court convicting her of third-degree criminal child abuse and fourth-degree assault. She was sentenced to 365 days’ imprisonment and a $500 fíne for each charge, the sentences to be served concurrently. For the following reasons we affirm in part and reverse in part.

Facts and procedure

Carver gave birth to A.H. on November 23, 2004, nearly three months premature. Although A.H. was slightly developmentally delayed, doctors agreed his development was normal considering his premature birth. On June 13, 2005, however, A.H.’s parents took the seven-month-old to the emergency room at Kosair Children’s Hospital with life-threatening injuries. Diagnostic tests revealed A.H. was suffering from bleeding and swelling of the brain, spinal injuries, and retinal hemorrhaging. Medical personnel also discovered fractures to A.H.’s ribs which had begun to heal, in addition to fractures of the child’s legs. Ultimately, severe injuries to A.H.’s brain, spine, and eyes resulted in permanent disability, including blindness, confinement to a wheelchair, and the inability to feed himself or play as a normal child.

Police and Child Services began investigating the cause of the child’s injuries. Investigators and medical personnel interviewed his parents and other family members. A.H.’s treating physicians believed his injuries were most likely caused by a severe, repetitive acceleration-deceleration event, or shaking, though an expert witness for Carver would disagree at trial that shaking alone could cause such injuries. Carver admitted to shaking the baby three times on Sunday, June 12, 2005, but claimed the shaking was neither violent nor severe, and that she “just barely” shook the child at all.

Carver was arrested and charged with criminal child abuse and assault. Following a trial conducted in May and June of 2008, a jury convicted Carver of one count of third-degree criminal abuse, based on the shaking allegations, and one count of fourth-degree assault. Carver was acquitted of allegations that she abused A.H. by causing his legs to be fractured. This appeal followed.

On appeal, Carver asserts the trial court erred in four respects: (1) denying her motion to strike a juror for cause; (2) failing to define “physical injury” in the jury instructions; (3) providing jury instructions for the criminal abuse charge which presented multiple theories of guilt and therefore violated Carver’s right to a unanimous verdict; and (4) assessing a fine despite finding Carver was indigent. We will address each argument in turn.

Circuit court properly denied Carver’s motion to exclude Juror #224935 for cause

The right to an impartial jury is fundamental to the American system of justice, and is protected by the U.S. and Kentucky Constitutions. Riddle v. Commonwealth, 864 S.W.2d 308, 310 (Ky.App.1993); Fugett v. Commonwealth, 250 S.W.3d 604, 612 (Ky.2008). Pursuant to Kentucky Rule(s) of Criminal Procedure (RCr) 9.36(1), “[wjhen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” Furthermore, “Kentucky has long recognized that ‘a determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court’s determination.’ ” Fugett, 250 S.W.3d at 613 (citing Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky.2002)).

In the instant case, the circuit judge chose not to exclude a juror who had previously had contact with the prosecuting attorney. That juror stated the Commonwealth’s Attorney “took care of a case” for her approximately ten to fifteen years earlier. That juror later clarified that a family member had been involved in a domestic violence matter in which her stepbrother had been convicted of murder. She believed the case was handled fairly and believed justice was served. The juror also said no aspect of the previous case would affect her service in Carver’s case.

Carver now attempts to characterize the juror’s prior contact with the prosecutor as an attorney-client relationship. “The relationship of attorney-client is a contractual one, either expressed or implied by the conduct of the parties.” Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky.App.1978). Attorney-client relationships place important responsibilities upon the attorney and sometimes give rise to situations in which a potential juror should be excluded for cause. Riddle, 864 S.W.2d at 311 (citing Daugherty, 581 S.W.2d at 16, and In re Gilbert, 274 Ky. 187, 118 S.W.2d 535, 537 (1938)). This is especially true when the relationship is ongoing and the prospective juror indicates he or she would call upon the attorney again if legal counsel became necessary in the future. Id. Here, however, there was no attorney-client relationship. The prosecuting attorney never represented the juror. Instead, she prosecuted a case against the juror’s family member on behalf of the Commonwealth. While the juror may have cooperated with prosecutors in the matter, there is no evidence of a contractual relationship between the prosecutor and the juror.

Further, the juror stated her experience with the prosecutor would not affect her decision making in Carver’s trial. Her statement that she would not be biased, combined with the lack of a prior attorney-client relationship and the lapse of ten to fifteen years between the first case and Carver’s case, gave the circuit judge ample reason to believe the juror would be fair and impartial. It was not an abuse of discretion for the circuit court to decline to exclude this juror from the panel.

The jury instructions regarding assault were not deficient for failing to define “physical injury”

Carver next argues the circuit court improperly failed to instruct the jury on the definition of “physical injury.” Whether a trial court issued the proper jury instruction is a question of law. Howell v. Commonwealth, 296 S.W.3d 430, 432-33 (Ky.App.2009). Our review of the matter is therefore de novo. Id.

In the instant case, the jurors received the following instruction regarding fourth-degree assault:

[Y]ou will find the defendant, Princess Carver, guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
(A) That in this county, between the 10th day of June, 2005, and the 13th day of June, 2005, the defendant recklessly caused a physical injury to A.H. ... by shaking him and/or inflicting blunt force trauma;
AND
(B) The defendant’s hands and/or a blunt object was a dangerous instrument as defined under Instruction No. 11[.]

Instruction No. 11, the definitional portion of the instructions, defined “dangerous instrument” and “serious physical injury,” but not “physical injury.”

It is the obligation of the circuit court to “instruct the jury on the whole law of the case.” Cannon v. Common wealth, 777 S.W.2d 591, 593 (Ky.1989). To that end, Kentucky Instructions to Junes provides the following definition of physical injury: “substantial physical pain or any impairment of physical condition.” 1 Cooper, Kentucky Instructions to Junes (Criminal) § 3.08. (4th ed.2005). Carver submitted a similar instruction to the circuit judge.

Erroneous jury instructions are presumed to be prejudicial. Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky.App.2000). It is therefore the Commonwealth’s burden to show an erroneous instruction did not prejudice Carver. Id. However, as the Commonwealth points out, “[a] formal definition is not required to be included in jury instructions where the jury can understand the term without such a defínition[,]” and any such omission will be deemed harmless error. Id. (citing Hardin v. Savageau, 906 S.W.2d 356, 358 (Ky.1995)).

Any error in failing to define the term in question was harmless. Carver has not argued that the jury was actually confused by the omission of a definition of “physical injury.” Further, the term is common, and its meaning is plain. A reasonably intelligent juror would understand the phrase without definition.

Carver argues the Supreme Court’s opinion in Commonwealth v. Hager, 41 S.W.3d 828 (Ky.2001), obligates this Court to conclude the omission of the definition of “physical injury” requires reversal. Hager, however, is clearly distinguishable from the instant case. In Hager, the Supreme Court found a multitude of problems with the jury instructions. Notable among those problems was that the jury convicted the defendant of fourth-degree assault without receiving any instruction on the elements of that charge. Further, the only evidence at trial was that the alleged victim had died following his encounter with the defendant. In such a case, the Supreme Court ruled, assault is not the appropriate offense; homicide is.

The Supreme Court did note that, “if the jury had been instructed on the elements of fourth-degree assault, [the definitional instruction] also should have included the definition of ‘physical injury,’ KRS [Kentucky Revised Statutes] 500.080(13), which is the result element of that offense.” Hager, 41 S.W.3d at 833. In the instant case, the jury was instructed on fourth-degree assault; only the result element, the definition of physical injury, was omitted. We agree with Carver that the definition of “physical injury” should have been included in the jury instructions. However, that determination is still subject to the harmless error analysis. Hager, 35 S.W.3d at 379. Because the Commonwealth has met its burden by showing no prejudice occurred to Carver as a result of this error, we conclude the error was harmless and affirm.

The jury instructions regarding third-degree criminal abuse were not eiToneous

Carver also argues the instruction on criminal abuse was erroneous, claiming, “[b]ecause of the inclusion of ‘physical injury’ in the definition of ‘serious physical injury,’ Ms. Carver submits the failure to define ‘physical injury’ when ‘serous physical injury’ is defined is erroneous, similarly to the error in the failure to define ‘course of conduct,’ a term used in the definition of ‘stalk.’ ” Brief for Appellant, 18 (citation omitted).

The jury instruction regarding third-degree criminal abuse fully defined every necessary term. Despite the fact that the phrase “serious physical injury” contains the phrase “physical injury,” defining the latter term was unnecessary. The former term is an element of this offense, and the latter is not. Defining a term which is not necessary to the jury’s decision would only serve to complicate and confuse matters, perhaps leading the jury to convict Carver of third-degree abuse upon a finding she only had caused A.H. physical injury rather than serious physical injury. The jury instruction was not erroneous in this respect.

The jury instruction on third-degree criminal assault denied Carver a unanimous verdict

“[A] defendant cannot be convicted of a criminal offense except by a unanimous verdict,” pursuant to the Kentucky Constitution. Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.2009) (citing Ky. Const. § 7; Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15 (1942)). The right to a unanimous verdict is violated when “the jury is presented with alternate theories of guilt in the instructions, one of which is totally unsupported by the evidence.” Burnett v. Commonwealth, 31 S.W.3d 878, 882 (Ky. 2000) (citing Boulder v. Commonwealth, 610 S.W.2d 615, 617 (Ky.1980) (overruled on other grounds)). In such a situation, it becomes the Commonwealth’s obligation to demonstrate it met its burden of proof under each of the theories in the instruction; when the Commonwealth cannot make such a showing, the defendant’s right to a unanimous verdict has been violated. Id. at 883. Carver argues the instructions on third-degree criminal abuse presented alternate theories, not all of which were supported by the evidence. We agree.

KRS 508.120(1) defines third-degree criminal abuse as follows:

A person is guilty of criminal abuse in the third degree when he recklessly abuses another person or permits another person of whom he has actual custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places him in a situation that may cause him serious physical injury; or
(c) Causes torture, cruel confinement or cruel punishment;
to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

KRS 508.120(1). The harm element, or prohibited result, may be fulfilled one of three ways — by demonstrating the victim was caused ‘serious physical injury;’ experienced torture, cruel confinement, or cruel punishment; or was placed in a situation which had the potential to cause serious physical injury. Each form of harm to the victim is a separate theory of the offense. Cooper’s model instruction reflects this. See 1 Cooper §§ 3.71A-3.73B.

The instruction given to the jury in the instant case, however, combined all three theories in one instruction. They required the jury to find Carver guilty ’if they believed:

(A) That in this county, between the 1st day of May, 2005, and the 13th day of June, 2005, the defendant recklessly abused A.H. ... by shaking him;
AND
(B) That she thereby
(1) Caused serious physical injury to A.H. ...;
OR
(2) Caused A.H. ... ta be placed in a situation which may have caused him serious physical injury;
OR
(3) That as a result thereof, A.H. ... was subjected to torture, or cruel punishment;
AND
(C) That A.H. ... was at that time twelve (12) years of age or less.

(Emphasis added.) This instruction merely parroted the statutory language. The jury was permitted, then, to convict Carver of this offense if it believed the alleged abuse led to any one of the three harmful results to A.H. This situation is similar to that in Burnett, in which the Supreme Court observed,

[Ujnder the model instruction, the jury is instructed only as to those statutory methods of trafficking that are actually supported by the evidence. Whereas giving the jury the general, statutory definition of trafficking likely will result in the jury being presented with theories of guilt not supported by the evidence. This is exactly what happened in the case at bar.

Burnett, 31 S.W.3d at 882. The conviction of third-degree criminal abuse can stand only if the Commonwealth met its burden of proof on each theory. We turn now to an examination of the evidence.

The Commonwealth clearly met its burden with respect to the first form of harm enumerated in KRS 508.020, serious physical injury. As discussed earlier in this opinion, the evidence was unequivocal that A.H. suffered very serious physical injury, and indeed nearly died.

There was evidence that A.H. suffered torture or cruel punishment. The Supreme Court, in Stoker v. Commonwealth, 828 S.W.2d 619 (Ky.1992), determined that the beatings of four children with a wire coat hanger constituted torture or cruel punishment because evidence supported the conclusion “the nature of the beatings [was] cruel and indiscriminate, and far different in character from normal parental discipline.” Stoker, 828 S.W.2d at 625. Another defendant was convicted of six counts of first-degree abuse for torture, cruel confinement, or cruel punishment, one count each for breaking a child’s arm, three impact injuries to the child’s abdomen, and two burn injuries. Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky.2006). If each of these injuries could constitute torture or cruel punishment individually, certainly shaking A.H. to such an extent as to cause brain, retinal, and spinal hemorrhages would constitute torture or cruel punishment as well. Carver’s own expert testified that the injury could have occurred up to seventy-two hours prior to A.H.’s admission to the hospital, and that it required very violent force. Given other examples of torture and cruel punishment in Kentucky case law, a jury could reasonably conclude A.H. experienced torture as well.

There was no evidence, however, that Carver caused A.H. to be placed in a potentially harmful situation. Although there is no clear rule for what constitutes placement in such a situation, the sequence of events presented at trial does not conform to examples in a leading treatise on Kentucky criminal law. George G. Seelig, Kentucky Criminal Law, § 9-6(b) (2d ed. 2008) (“Some situations would easily qualify, e.g., leaving an infant unattended in a hot automobile, permitting children to play with loaded weapons, etc. Others are far more difficult to judge, e.g., hauling an infant in an automobile without use of a safety seat, driving while intoxicated with children in the car, etc. There is no help in the case law on this subject”). The evidence, though vigorously controverted, was that Carver shook A.H. hard enough to cause massive brain swelling and hemorrhaging. While at least one witness testified that Carver had left A.H. alone on the front porch prior to taking him to the hospital, that was a separate incident from the alleged shaking, and could not have led to a conviction on this count. Because this theory was unsupported by the evidence, the Commonwealth failed to meet its burden of proof and deprived Carver of her right to a unanimous verdict.

Carver also argues she was denied a unanimous verdict because Instruction No. 11, the definitions section, included a definition of abuse which was not supported by the evidence. This, too, is reminiscent of the situation in Burnett. In that case, the jury received instructions to find the defendant guilty if they believed he was trafficking in a controlled substance. Burnett, 31 S.W.3d at 881. In the definitional section of the instructions, “trafficking” was defined as follows: “to manufacture, distribute, sell or transfer a controlled substance.” Id. While that was the correct statutory definition of trafficking, there was no evidence the defendant had been manufacturing a drug. The Supreme Court in Burnett held this was improper because the instructions presented a theory of the case not supported by evidence.

Here, Instruction No. 7 required jurors to find Carver guilty if they believed she had abused A.H. by shaking him. The definition section of the instructions defined abuse as “the infliction of physical pain, injury, or mental injury, or the deprivation of services which are necessary to maintain the health and welfare of a person.” (Emphasis added). This is the statutory definition of abuse as articulated in KRS 508.090(1), but Carver was not charged with abuse for depriving A.H. of medical attention. The jury should not have been given an instruction which included this portion of the definition.

The Commonwealth urges us to find the erroneous definition was mere “surplus-age,” in accordance with the Supreme Court’s opinion in Tharp v. Commonwealth, 40 S.W.3d 356 (Ky.2000). That opinion said, “inclusion of any definition of complicity in the instructions was surplus-age, since the substantive instructions embodied the essentials of the definition.” Id. at 364. Here, the Commonwealth argues we should find the definitional instruction mere surplusage because the substantive instruction properly laid out the elements of the crime.

This argument is based upon a misapplication of the case. The defendant in Tharp did not raise the argument that she had been denied a unanimous verdict. Her disagreement with the definitional instruction arose from a dispute about whether it accurately reflected the statutory definition of complicity. The Supreme Court simply found the definitional instruction was repetitive of the substantive instruction; it did not rule — nor was it asked to — that the definition could stand even though it presented theories which were unsupported by the evidence.

Further, the Court in Burnett held that, when there is an issue of unanimous verdict, any error is not subject to harmless error analysis. Burnett, 31 S.W.3d at 883. A finding in the instant case that the definitional instruction regarding abuse was mere surplusage amounts to a finding that the error was harmless, which is not allowed. The Commonwealth was still required to prove every theory presented in the instructions, including the definitional instruction, beyond a reasonable doubt. It failed to do so and, therefore, Carver was deprived of the right to a unanimous verdict in this respect as well.

Imposition of the fines is not palpable error

Carver next objects to the $500 fines imposed upon her for each conviction, for a total of $1,000, pursuant to KRS 534.040(2). KRS 534.040(4) prohibits the imposition of fines upon a defendant found to be indigent under KRS Chapter 31. Carver was found indigent in accordance with that chapter and a public defender was appointed to represent her. Carver raises this issue pursuant to RCr 10.26, which permits this Court to review a matter which was not raised before the trial court:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

RCr 10.26. Because Carver did not object to the imposition of a fine before the circuit court, our review can only be for palpable error.

Ordinarily, we would prohibit imposition of fines when the issue was properly preserved. Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky.1994) (holding that because the defendant was represented by a public defender at sentencing, the circuit court must have found him indigent; accordingly, “imposition of any fine was inappropriately”).

Even upon review for palpable error, we would reverse the circuit court’s imposition of a fíne upon an indigent person. Assessment of a fine would be a ruling in clear contravention of the law. The Commonwealth, however, argues Carver has waived her right to object to the fines because her trial counsel asserted to the circuit judge that fines were appropriate. Here, Carver’s trial counsel did not simply fail to raise the argument before the circuit judge; instead, her attorney asserted to the circuit court that a fine could, in fact, be imposed. This conversation occurred before the sentencing phase of trial, and affected the instructions the circuit judge gave to the jury. Later, at Carver’s sentencing hearing, her trial counsel stated “no position” on the issue. This was apparently a strategic decision — the possibility she would receive only a fine was a risk she was willing to take. We presume Carver and her attorney knew better the degree of Carver’s indigence and ability to accumulate sufficient funds to pay a fine under such circumstances. Now that the fine has been imposed, however, Carver wishes to invoke the statute which would ordinarily have prohibited it in the first place. The circuit judge did not commit palpable error in imposing a fine upon Carver in light of her attorney’s representations to the court.

The circuit court properly imposed the fines and refused to excuse Juror # 224935 for cause. Although the failure to define “physical injury” was error, the error was harmless. We therefore affirm the circuit court on all those issues. With respect to the jury instruction for criminal abuse, however, we reverse. The instructions de-pi’ived Carver of the right to a unanimous verdict by presenting alternate theories of guilt, not all of which were supported by the evidence. We remand this matter for proceedings consistent with this opinion.

ALL CONCUR.

      . The instruction did omit that portion of the statute which clearly applied only to mentally or physically disabled adults in the care of another person.

      . The form for the Order and Affidavit of Indigency contains the following standard language: “Based on the above information, Sworn to before the Court, IT IS HEREBY ORDERED that the above named defendant □ is □ is not deemed indigent under K.R.S. Chapter 31. By so qualifying, and if requested above, the affiant is qualified for services as provided by KRS Chapter 31.” The circuit judge responsible for making this determina-lion signed the form, but did not indicate whether she found Carver indigent by checking the proper box. However, because Carver requested and was granted the appointment of counsel, we presume she was also found indigent. See West v. Commonwealth, 887 S.W.2d 338, 342 (Ky.1994) (“implicit in the trial court’s order allowing the Public Defender to see [the defendant] must be a finding that [the defendant] was indigent.”).


source: Caselaw Access Project

author: KELLER, Judge:

license: Public Domain

text:
    CARDIOVASCULAR SPECIALISTS, P.S.C., Appellant, v. Nicholaos XENOPOULOS, M.D., Appellee
    No. 2009-CA-001442-MR.
    Court of Appeals of Kentucky.
    Nov. 24, 2010.
    Robert B. Craig, Covington, KY, for appellant.
    Trevor L. Earl, Louisville, KY, for ap-pellee.
    Before KELLER, MOORE, and STUMBO, Judges.
   OPINION

KELLER, Judge:

This is an appeal from an order of the Jefferson Circuit Court directing Cardiovascular Specialists, P.S.C. (Cardiovascular Specialists) to provide one of its shareholders, Nicholaos Xenopoulos, M.D. (Dr. Xe-nopoulos), with certain documents and information. For the following reasons, we vacate and remand.

FACTS

Cardiovascular Specialists is a professional service corporation formed pursuant to Kentucky Revised Statutes (KRS) Chapter 274, and Dr. Xenopoulos is a shareholder. On January 7, 2009, Dr. Xenopoulos’s counsel sent a letter (the January 7th letter) to the President of Cardiovascular Specialists requesting that Cardiovascular Specialists allow Dr. Xeno-poulos to inspect certain business records. Specifically, the letter stated that Dr. Xe-nopoulos wished to inspect and copy the following records:

A. The current articles of incorporation and bylaws of the Corporation, together with any amendments or addenda thereto;
B. The minutes of all shareholders’ meetings, and records of all action taken by shareholders without a meeting since January 1, 2005;
C. All written communications to shareholders generally within the past three (3) years, including financial statements. In the event that financial statements have not been given to shareholders, then demand is made alternatively under KRS 271B.16-200 for the financial statements for 2005-2008 inclusive. Please provide, in addition to the companies’ financial statements, federal, state and local tax returns for the Corporation for 2007 and for 2008 upon completion.
D. All minutes from any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the Corporation, records of action taken by the board of directors without a meeting since January 1, 2005; and
E. All accounting records of the Corporation for fiscal years 2005, 2006, 2007, and 2008.

The letter stated that “Dr. Xenopoulos’ [sic] demands under subsection (2) of KRS 271B.16-020 are made in good faith and for the purpose of obtaining a true and accurate valuation of his shares in the Corporation.” It is undisputed that Dr. Xenopoulos received all of the documents requested in the January 7th letter.

On March 5, 2009, Dr. Xenopoulos’s counsel sent another letter (the March 5th letter) requesting additional information. Specifically, the letter stated that, after having reviewed the various materials previously provided by Cardiovascular Specialists with Dr. Xenopoulos’s accountant, “it is apparent that we need some additional information about a few items on the financial statements.... ” The following additional items were requested:

1. We would appreciate receiving information relating to any loans to the PSC’s shareholders, or other entities, including but not limited to, Kentuckiana Medical Center, and evidence of repayment within the last five years.
2. A detail of the rent and lease payments made to landlords and lessors for 2007 and 2008. In addition, we would like to know whether, and to what extent, any of the shareholders have an interest in entities leasing space or equipment to the PSC.
3. We would like to see the computation of allocation of income and expenses resulting in the amount paid to each of the shareholders for 2007 and 2008.
4. Please forward a schedule of the staff which works not only for the Practice but also for Kentuckiana Medical Center and/or Dr. Rumisek. In this connection, we would like to see the allocation of the hours of various members of the shared staff and the allocation of their compensation to the two entities.
5. Finally, we would appreciate seeing a written accounts receivable collection policy, if there is one, and copies of uncollected invoices from all the physicians currently over 180 days old as of February 28, 2009.

Cardiovascular Specialists did not provide Dr. Xenopoulos with these additional documents. On May 13, 2009, Dr. Xeno-poulos filed a Verified Petition For Order Enforcing Shareholder’s Right of Inspection in the Jefferson Circuit Court, and on June 23, 2009, Dr. Xenopoulos filed a Motion for Order Compelling Inspection of Corporate Records. On July 13, 2009, the trial court entered an order granting Dr. Xenopoulos’s motion and directing Cardiovascular Specialists to provide Dr. Xeno-poulos with the requested documents within twenty days from the date the order was entered. The trial court did not make any findings or provide any reasoning for its decision in its order. This appeal followed.

STANDARD OF REVIEW

Matters of statutory construction are subject to de novo review and this Court is not bound by the trial court’s interpretation. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky.App. 2000). However, when there are questions of fact, or mixed questions of law and fact, we review the trial court’s decision pursuant to the clearly erroneous standard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Under this standard, this Court will only set aside the findings of fact of the trial court if those findings are clearly erroneous. The dispositive question is whether the findings are supported by substantial evidence. Id.

ANALYSIS

Cardiovascular Specialists contends that the trial court erred in granting Dr. Xeno-poulos’s motion. Specifically, Cardiovascular Specialists argues that Dr. Xenopoulos did not have a statutory right to inspect the requested documents.

As noted above, Cardiovascular Specialists is a professional sendee corporation formed pursuant to KRS Chapter 274. Except as otherwise provided under KRS Chapter 274, a professional service corporation has the “same powers, authority, duties, and liabilities as a corporation formed under KRS Chapter 271B.” KRS 274.015(2). Because KRS Chapter 274 does not address a shareholder’s right to inspect corporate documents, we must look to KRS Chapter 271B.

KRS 271B.16-020 creates two rights of inspection of corporate records by a shareholder. The first, under KRS 271B.16-020(1), pertains to certain documents which a corporation is required to have available at its principal office. This includes the corporation’s articles of incorporation, bylaws, resolutions regarding classes of shares, minutes or records of shareholders’ actions for the past three years, all written communications to the shareholders within the past three years, including financial statements furnished to the shareholders, names and addresses of current directors and officers, and the most recent annual report. See KRS 271B.16-010(5). A shareholder has the right to inspect these corporate records after giving five days’ notice. KRS 271B.16-020(1).

A separate right of inspection for other corporate documents is provided under KRS 271B.16-020(2), which states that:

A shareholder of a corporation shall be entitled to inspect and copy during regular business hours at a reasonable location specified by the corporation any of the following records of the corporation if the shareholder meets the requirements of subsection (3) of this section and gives the corporation written notice of his demand at least five (5) business days before the date on which he wishes to inspect and copy:
(a) Excerpts from minutes of any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or board of directors without a meeting, to the extent not subject to inspection under subsection (1) of this section;
(b) Accounting records of the corporation; and
(c) The record of shareholders.

Subsection (3) of KRS 271B.16-020 provides that:

A shareholder may inspect and copy the records described in subsection (2) of this section only if:
(a) His demand is made in good faith and for a proper purpose;
(b) He describes with reasonable particularity his purpose and the records he desires to inspect; and
(c) The records are directly connected with his purpose.

Based on the preceding, the first step in our analysis is to determine whether documents requested by Dr. Xenopou-los are corporate records that a shareholder is entitled to inspect. Dr. Xenopoulos argues that, pursuant to KRS 271B.16-020(2)(b), he does have a right to inspect all of the documents requested in the March 5th letter because they are all “[a]c-counting records of the corporation.” Cardiovascular Specialists contends that none of the documents requested fall within any of the types of records a shareholder is entitled to inspect and that Dr. Xenopoulos broadly characterized the additional documents as “accounting records”.

As correctly noted by Cardiovascular Specialists, “accounting records”, as set forth in KRS 271B.16-020(2)(b), is not defined. Because “accounting records” is not defined, Cardiovascular Specialists points to KRS 271B.16-010(2) for guidance, which provides that a corporation must maintain “appropriate accounting records.” In an attempt to define “appropriate accounting records,” Cardiovascular Specialists cites to section 16.01 of the 1984 Model Business Corporation Act. According to the Model Act’s official comment 2 for that section:

“Appropriate” records are generally records that permit financial statements to be prepared which fairly present the financial position and transactions of the corporation. In some very small businesses operating on a cash basis, however, “appropriate” accounting records may consist only of a check register, vouchers, and receipts.

Cardiovascular Specialists argues that the documents Dr. Xenopoulos seeks are not necessary for the preparation of Cardiovascular Specialists’ financial statements and therefore do not fall within the Model Act’s definition of “appropriate” accounting records. Thus, Cardiovascular Specialists contends that Dr. Xenopoulos is not entitled to inspect the requested documents.

We note that, while KRS 271B.16-010(2) states that a corporation must maintain “appropriate accounting records,” there is not a corollary statutory right for a shareholder to inspect those records. Thus, that section is not relevant to this appeal. We believe the relevant section in this case to be KRS 271B.16-020(2)(b). Under this section, a shareholder has a right to inspect “accounting records of the corporation,” under certain circumstances. Significantly absent from the statutory language in that section is the word “appropriate.” Thus, the definition of the word “appropriate” and the comment provided in the Model Act are irrelevant to our determination of what constitutes an “accounting record” under KRS 271B.16-020(2)(b). See Beckham v. Board of Educ. of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994) (noting that our duty is to ascertain the intent of the General Assembly and that we are not at liberty to add or subtract language from a statute). Accordingly, we find Cardiovascular Specialists’ argument that Dr. Xenopoulos is not entitled to inspect the requested documents because they are not “appropriate” accounting records to be unpersuasive.

The determination of whether the documents requested by Dr. Xenopoulos are accounting records of the corporation is a finding of fact to be made by the trial court. However, it is unclear from the record whether the trial court determined that the requested documents were accounting records, and the trial court’s order is void of any such finding. Additionally, the March 5th letter requesting the records, the complaint for inspection of the records, and the motion to compel inspection of the corporate records do not contain any explanation as to how the requested documents are accounting records of the corporation under KRS 271B.16-020(2)(b).

Even if the trial court had determined that the requested records are accounting records of the corporation, the trial court did not make any findings with respect to whether the requested records were “directly connected” to Dr. Xenopoulos’s alleged proper purpose of valuing his shares. See KRS 271B.16-020(3). As previously noted, subsection (3) of KRS 271B.16-020 provides that a shareholder may inspect certain records if the demand is made in good faith and for a proper purpose, if the shareholder describes which records he desires to inspect with reasonable particularity, and if the records are directly connected to the shareholder’s stated purpose.

Cardiovascular Specialists concedes that a good faith request for corporate records for use in ascertaining a value on a shareholder’s stock is a “proper purpose” under KRS 271B.16-020(3)(a). Thus, it is not disputed that Dr. Xenopoulos stated a proper purpose for requesting the documents. Further, having reviewed the March 5th letter, we believe that Dr. Xe-nopoulos stated which records he desired to inspect with reasonable particularity. However, the March 5th letter, the complaint for inspection, and the motion to compel inspection of the corporate records do not contain any explanation by Dr. Xe-nopoulos as to why the records are necessary for his stated purpose of stock valuation. Additionally, the trial court did not make any findings with respect to whether the requested records were directly connected to Dr. Xenopoulos’s alleged proper purpose of valuing his shares.

Therefore, we vacate the trial court’s order granting the request for inspection and remand this case to the trial court for specific findings as to whether the requested documents are accounting records of the corporation. If the trial court determines that the requested documents are accounting records of the corporation, it should then make additional findings as to whether the requested records are “directly connected” to Dr. Xenopoulos’s alleged proper purpose of valuing his shares. The trial court may, if necessary, conduct additional proceedings prior to making the required findings.

CONCLUSION

For the foregoing reasons, we vacate the trial court’s order and remand for further proceedings consistent with the opinion.

STUMBO, Judge, concurs.

MOORE, Judge, concurs in result only.

      . The General Assembly enacted KRS 271B.16-010 in 1988, which models the 1984 Model Business Corporation Act. With the exception of the references to section numbers, KRS 271B.16-010 is identical to section 16.01 of the Model Act.


author: MOORE, Judge:

text:
    Jesse J. CASKEY, Jr., Appellant, v. Jessica L. CASKEY, Appellee.
    No. 2010-CA-000667-ME.
    Court of Appeals of Kentucky.
    Nov. 24, 2010.
    Jesse J. Caskey, Jr., Pro Se, Morehead, KY, for appellant.
    No Brief for Appellee.
    Before LAMBERT, MOORE, and NICKELL, Judges.
   OPINION

MOORE, Judge:

Jesse Caskey, Jr. (the father) appeals the Wolfe Circuit Court’s order denying his motion which in substance sought to make him the primary residential parent of his daughter (Z.C.) and a subsequent order denying his motion to reconsider. After careful review, we reverse.

As an initial matter (and, as is often the case), the terminology of custody and primary residential custodian or parent is confused and used interchangeably in the father’s brief before this Court and proceedings before the trial court. The father does not seek to set aside the joint custody agreement, and he does not seek sole custody. Rather, from the substance of his argument before the trial court and this Court, it is patently clear that it is the designation of the primary residential parent that he seeks to change from the mother to himself. See Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008). Accordingly, under Pennington, we will review this as a motion to modify the parties’ visitation/time-sharing arrangements and the best interest standard of Kentucky Revised Statute (KRS) 403.320 will apply.

We also pause to note that the mother did not file a brief before this Court. Pursuant to Civil Rule (CR) 76.12(8)(c)(i), we may take the factual statements of the father as true. Nonetheless, having reviewed the entirety of the hearing and the exhibits admitted therein, the father’s factual statements are supported by the record.

Turning to the facts of this matter, the marriage of the father and Jessica Caskey (the mother) was dissolved in Wolfe Circuit Court by order and decree entered on May 24, 2007. The parties had one child, Z.C., who was born on June 24, 2002. The divorce decree incorporated the parties’ December 5, 2006 settlement agreement by reference wherein the parties agreed that: (1) they would share joint custody of their minor daughter; (2) the mother would be the child’s primary caregiver; (3) the parties would have equal timesharing; and (4) they would share the financial responsibility of the child.

On August 18, 2009, the father filed a motion for a hearing on the “issue of custody modification.” Rather, as explained supra and as shown in the proceedings below, the father was seeking to be named the primary residential parent and asked that the court award Z.C.’s mother standard visitation, which would be visitation every other weekend and one time during the week.

As the testimony at the hearing on his motion revealed and as stated in his affidavit attached to his motion, the primary event leading to the father’s motion was that Z.C. had been recently assaulted while in the mother’s presence. This incident is pivotal to the Court’s decision in this matter.

The undisputed facts include that on Thursday, May 21, 2009, the mother was riding in an automobile driven by her best friend, and Z.C. was in the backseat. They stopped to pick up Thomas Pressnell, which the record indicates was the mother’s best friend’s husband. Pressnell got into the backseat with Z.C., who was six years old at the time. Sometime during the ride, Pressnell assaulted Z.C. by striking her in the throat and choking her. The mother’s testimony was that she did not know what happened until the next day.

According to the medical records admitted at the hearing, Z.C. was seen at Kentucky River Medical Center at 23:50, nearly midnight, on Friday, May 22, 2009. The medical record provides that “mother alleges girlfriend’s husband choked and struck patient” and that “mother states that [patient] was riding in vehicle with mother[’]s best friend and her husband when the friend[’s] husband chocked [sic] the patient yesterday.” (Emphasis added).

The father was scheduled to pick up Z.C. on Friday. But the mother called to inform him that something had taken place and he could not get Z.C. until Saturday. When the father picked up Z.C. on Saturday, he alleges she had bruising on her chest and throat and hemorrhaging around her eyelids and mouth. Pursuant to C.R. 76.12(8)(c)(i), we may take this as true. The father’s testimony at the hearing was in accord.

Pursuant to the criminal records admitted at the hearing, Pressnell was indicted in the Wolfe Circuit Court for violation of KRS 508.100 and KRS 509.020. The indictment charged that on the 21st day of May in 2009, Pressnell

COUNT I: COMMITTED THE OFFENSE OF CRIMINAL ABUSE IN THE FIRST DEGREE WHEN HE INTENTIONALLY ABUSED Z.C., A MINOR CHILD WHO WAS LESS THAN 12 YEARS OLD, AND THEREBY PLACED HER IN A SITUATION THAT MAY HAVE CAUSED HER SERIOUS PHYSICAL INJURY BY HITTING HER AND CHOKING HER
COUNT II: COMMITTED THE OFFENSE OF UNLAWFUL IMPRISONMENT IN THE FIRST DEGREE WHEN HE KNOWINGLY AND UNLAWFULLY RESTRAINED Z.C. UNDER CIRCUMSTANCES WHICH EXPOSED HER TO A RISK OF SERIOUS PHYSICAL INJURY

Pressnell’s bail was set at $95,000 full cash. On November 20, 2009, he entered a motion to enter a plea on the Commonwealth’s offer on a guilty plea. The Commonwealth offered to amend the charges to assault in the fourth degree. In regard to the facts of the case on the offer, which Pressnell signed, it stated:

The defendant intentionally caused physical injury to Z.C. a minor child and knowingly and unlawfully restrained said child under circumstances which exposed her to a risk of serious physical [injury].

The mother was also indicted and charged that on the 21sl of May of 2009, she

COMMITTED THE OFFENSE OF FAILURE TO REPORT DEPENDENCY, NEGLECT, OR ABUSE WHEN [SHE] KNOWING OR HAVING REASONABLE CAUSE TO BELIEVE THAT Z.C, A MINOR CHILD WHO WAS LESS THAN 12 YEARS OLD, HAD BEEN ABUSED BY THOMAS PRESSNELL, FAILED TO IMMEDIATELY REPORT THE ABUSE TO LOCAL LAW ENFORCEMENT, THE KENTUCKY STATE POLICE, THE CABINET FOR FAMILIES AND CHILDREN, THE COMMONWEALTH ATTORNEY, OR THE COUNTY ATTORNEY.

The mother remained under indictment at the time the hearing on the father’s motion was held. She therefore refused to testify to the specifics of what happened, but did admit that she was not aware of what had transpired between Pressnell and Z.C. until the day after the attack.

In supi from the record evidence, it is undisputed that Pressnell attacked Z.C, and Pressnell admitted in the Commonwealth’s offer of a plea agreement that the attack was such that it caused Z.C. physical injury and exposed her to a risk of serious physical injury. It is also undisputed that this attack on Z.C. took place while the mother was present in the car. And, despite the appearance of bruising on Z.C. and the other physical manifestations of the attack that the father testified to still be present when he picked up Z.C. two days after the attack, the mother testified she did not know what happened until the day after the attack. The medical records verify that the mother failed to take Z.C. for medical treatment until nearly midnight of the day following the attack. Regarding this incident, the trial court noted in its order that Z.C. “may not have been exemplarily monitored” but concluded that Z.C. was not in danger while in the mother’s care.

While the father also alleges other concerns, supported by the record, regarding Z.C.’s lack of dental care and other health issues, Z.C.’s recurring lice, and frequent moves made by the mother and school changes for Z.C., along with problems of tardiness and school attendance, we need not delve into those areas. The attack on Z.C. and the mother’s response — or lack thereof — requires reversal in this case, notwithstanding other pressing issues. The mother cannot dispute that while Z.C. was in her care and presence, Z.C. was attacked, the mother failed to protect her, the mother was not even aware of the attack until the following day, and despite physical manifestations of the attack on Z.C., the mother failed to report the attack to authorities in a timely manner and failed to take Z.C. for medical care until nearly midnight of the day following the attack. These undisputed facts are more than sufficient to show that it is in Z.C.’s best interest for the father to be designated as the primary residential parent, with whom Z.C. should live. Thus, we reverse.

We take note that our standard of review is high. This Court will only reverse a family court’s determinations as to visitation and designation of primary residential parent if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case. See e.g., Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App.2000) (citing Wilhelm v. Wilhelm, 504 S.W.2d 699, 700 (Ky.1973)). “A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person.” B.C. v. B.T., 182 S.W.3d 213 (Ky.App.2005). While it is rare to overturn a court under this standard, the case at hand presents one of those exceptional cases.

The resolution of the father’s motion was to be considered under what was in the best interests of Z.C. See Pennington v. Marcum, 266 S.W.3d 759; KRS 403.320. Relevant to our review are the factual findings by the family court that Z.C. was well adjusted to both parents’ homes and had a good relationship with both parents and their families. The family court found that the father was well-suited to care for Z.C. and essentially that both parents were properly suited to be primary residential parent. But according to the family court, there was nothing that justified changing the status of the primary residential parent. The family court wrote that while in her present home environment Z.C. was not “exemplarily monitored,” the court concluded that Z.C.’s home environment with her mother did not seriously endanger her. Yet, the family court “request[ed] the Clerk of [that] court to refer this case to the local Commonwealth of Kentucky, Cabinet for Health and Family Services, Department of Community Based Services, for monitoring and investigation.”

Referring this case to the Cabinet to monitor and investigate defies the family court’s determination that designating the mother as primary residential parent is in the best interest of Z.C. Nothing whatsoever in the record and nothing whatsoever in the court’s order references any issues that need to be monitored or investigated on the part of the father. On the other hand in regard to the mother, the child was attacked while in her presence, and Pressnell admitted that he had caused physical injury to Z.C. and placed her in danger of serious physical injury. Thus, it is apparent the family court perceived that the situation with the mother required monitoring. Given the undisputed circumstances surrounding the attack on Z.C., substantial evidence did not support a finding that it was in Z.C.’s best interest for her mother to continue to be designated as primary residential parent. If Z.C.’s mother did nothing to protect her from an assault while they were riding in a car together or the mother was so otherwise engaged that she was not aware of it and failed to observe the physical results of the abuse until the following day, it is not reasonable to conclude that Z.C. is in an environment that is in her best interests. Thus, we reverse and remand this matter to the Wolfe Circuit Court for proceedings consistent with this opinion.

ALL CONCUR.

      . Jacob Tolson was indicted along with the mother. He did not testify at the hearing.


author: LAWRENCE E. MOONEY, Judge.

text:
    Pietro HICKEY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93397.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 6, 2010.

      Gwenda Renee Robinson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The movant, Pietro Hickey, appeals the denial of his Rule 29.15 motion for postcon-viction relief without an evidentiary hearing. The movant claims that trial counsel was ineffective, first — for laboring under an actual conflict of interest, and second— for inducing the movant’s unknowing, unintelligent, and involuntary waiver of his right to testify. We affirm the motion court’s determination, without an eviden-tiary hearing, that counsel did not labor under an actual conflict of interest and thus was not ineffective. We hold, however, that the motion court clearly erred in denying an evidentiary hearing to the mov-ant on his claim that counsel misled him into unknowingly and involuntarily waiving his right to testify. We reverse and remand for the limited purpose of holding an evidentiary hearing to determine the veracity of the movant’s claim that counsel misled him into waiving his right to testify.

On February 10, 2006, a man wielding a scalpel robbed a gas station in St. Charles, Missouri. The State charged the movant with one count of first-degree robbery, in violation of section 569.020 RSMo. (2000), and one count of armed criminal action, in violation of section 571.015. An attorney from the public defender’s office in St. Charles County represented the movant. The movant proceeded to trial in December 2006, where the movant’s long-time friend and former roommate (“witness”) testified for the prosecution. The witness testified that he received no deals from the State in exchange for his testimony against the movant. On cross-examination, the witness confirmed that he was then incarcerated for felony forgery, and that he also had a felony conviction for stealing and misdemeanor convictions for driving while intoxicated and passing a bad check. After the jury convicted the movant, the Circuit Court of St. Charles County entered judgment against him. The court sentenced the movant to concurrent terms of imprisonment of fifteen years for the robbery and three years for the armed criminal action.

At sentencing, the movant expressed dissatisfaction with trial counsel’s performance, complaining that she failed to do a number of things the movant had requested. The movant filed his pro se motion for post-conviction relief at the sentencing hearing. This Court affirmed the mov-ant’s convictions on direct appeal, and the movant then filed an amended motion impost-conviction relief. The court denied the motion without an evidentiary hearing.

Our review of a motion court’s denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005); Becker v. State, 260 S.W.3d 905, 907 (Mo.App. E.D.2008). A motion court’s findings and conclusions are clearly erroneous only if, after a full review of the record, this Court is left with a definite and firm impression that a mistake has been made. Williams, 168 S.W.3d at 439; Becker, 260 S.W.3d at 907.

The movant alleges ineffective assistance of counsel. To show ineffective assistance of counsel, a movant must demonstrate: (1) that counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) that counsel’s deficient performance prejudiced the defense by showing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Williams, 168 S.W.3d at 439 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Becker, 260 S.W.3d at 907. A reasonable probability is one sufficient to undermine confidence in the proceeding’s outcome. Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). A movant must satisfy both elements of the Strickland test in order to obtain relief. Becker, 260 S.W.3d at 907.

The motion court in this case denied the movant’s claim without an eviden-tiary hearing. To receive an evidentiary hearing on a Rule 29.15 motion, a movant must meet the following three requirements: (1) the motion must allege facts, not conclusions, that warrant relief; (2) the facts alleged must raise matters not refuted by the record; and (3) the facts alleged must establish prejudice to the movant. Id.

In his first point, the movant claims that trial counsel was ineffective for laboring under an actual conflict of interest that adversely affected counsel’s performance and prejudiced the movant at trial. The movant maintains that counsel previously represented a witness against the movant on criminal charges, and the movant did not knowingly or voluntarily consent to representation by the same attorney. The movant contends that because of her former representation of the witness, trial counsel did not thoroughly impeach the witness with all of his prior convictions of which trial counsel had knowledge. Had trial counsel thoroughly impeached the witness, the movant argues, a reasonable probability exists that the jury “would have had a significantly different impression of [the witness’s] testimony,” and would have acquitted the movant.

The motion court concluded that no conflict of interest existed, and that the mov-ant failed to show prejudice. The motion court also noted that trial counsel did, in fact, cross-examine the witness about four of his prior convictions and his current incarceration, neglecting to impeach the witness only as to one prior misdemeanor conviction for driving while intoxicated.

To prevail on a claim of ineffective assistance of counsel based on a conflict of interest, the movant must show that an actual conflict of interest adversely affected counsel’s performance. Price v. State, 171 S.W.3d 154, 157 (Mo.App. E.D. 2005). “In order to prove a conflict of interest, something must have been done by counsel or something must have been forgone by counsel and lost to [the mov-ant], which was detrimental to the interests of [the movant] and advantageous to another.” Id. (quoting Helmig v. State, 42 S.W.3d 658, 680 (Mo.App. E.D.2001)); State v. Johnson, 549 S.W.2d 348, 350 (Mo. App.St.L.Dist.1977). A conflict of interest such as to deny the movant effective assistance of counsel must be shown by evidence. Id. We presume prejudice only if the movant proves that counsel actively represented conflicting interests and that an actual conflict adversely affected counsel’s performance. Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Price, 171 S.W.3d at 157.

Only when the movant shows that counsel actively represented conflicting interests has the movant established the constitutional predicate for a claim of ineffective assistance. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The possibility of conflict is insufficient to impugn a criminal conviction. Id. Rather, in order to demonstrate a violation of the Sixth Amendment right to counsel, the movant must establish that an actual conflict of interest adversely affected counsel’s performance. Id. “Furthermore, the mere existence of a possible conflict of interest does not automatically preclude effective representation.” Helmig, 42 S.W.3d at 680. Justice Marshall provided a helpful distinction between a possible and actual conflict of interest in Cuyler.

There is a possibility of conflict, then, if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interests if, during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.

446 U.S. at 356 n. 3, 100 S.Ct. 1708 (Marshall, J., concurring in part and dissenting in part).

The initial question is whether an actual conflict of interest existed under our circumstances. We conclude that none did. A conflict of interest such as to deny the movant effective assistance of counsel must be shown by evidence. Johnson, 549 S.W.2d at 350. In order to evidence a conflict of interest, something must have been done by counsel or something must have been forgone by counsel and lost to the movant that was detrimental to the movant’s interests and advantageous to another. Helmig, 42 S.W.3d at 680; Johnson, 549 S.W.2d at 350. No such evidence appears in the record. We see nothing to suggest that counsel acted or failed to act in any way that was detrimental to the movant’s interests and advantageous to the ■witness or any other person.

Here, trial counsel concluded her representation of the witness before the robbery in this case even occurred. The witness was not a co-defendant of the movant. None of the charges on which trial counsel or her colleagues represented the witness are alleged to be related to the movant’s case in any manner. Furthermore, the record reveals that the witness received no benefit in exchange for his testimony against the movant. The movant alleges only that trial counsel failed to fully impeach the witness with all of his convictions known to counsel because the witness was counsel’s former client. The movant identified nine cases, alleging that trial counsel, or another attorney from the same public defender’s office, represented the witness in those matters. Again, the movant does not allege that any of the identified matters are related to his case. The movant complains of the witness’s convictions in 2003 and 2005 for misdemeanor driving while intoxicated, a 2005 felony conviction for forgery, a 2005 conviction for misdemeanor driving while license revoked, and a 2006 felony conviction for stealing. The movant also complains about two cases that the record reveals the State dismissed, and two cases that the State appears to have charged in 2008, more than one year after the movant’s trial.

On cross-examination, the witness admitted that he was imprisoned for felony forgery at the time of trial, and also that he had convictions for felony stealing, misdemeanor passing a bad check, and misdemeanor driving while intoxicated. Trial counsel could not impeach the witness about the two cases the State dismissed because they did not result in convictions, and counsel could not ask about the two cases that the State would later file against the witness. Thus, the remaining convictions the movant identifies, with which trial counsel could have impeached the witness, but did not do so, were merely a misdemeanor driving while intoxicated and a misdemeanor driving while license revoked.

Trial counsel impeached the witness with four convictions, including all of his felonies. Three of the convictions revealed on cross-examination — forgery, stealing, and passing a bad check — plainly involved dishonesty, and that would have been apparent to the jury. We fail to see how the jury “would have had a significantly different impression of [the witness’s] testimony” had the jury known of the witness’s two additional misdemeanors. We conclude that trial counsel, having effectively impeached the witness with felony convictions involving dishonesty, would not have provided more effective representation by adducing evidence that the witness also had convictions for misdemeanor driving while intoxicated and misdemeanor driving while license revoked. Thus we find no actual conflict of interest adversely affected counsel’s performance. The facts do not show that counsel did something, or that something was forgone by counsel and lost to the movant that was detrimental to the movant’s interests and advantageous to another.

We recognize that some Missouri cases state that an attorney who represents both the defendant and a prosecution witness in the case against the defendant represents conflicting interests. See, e.g., Ciarelli v. State, 441 S.W.2d 695, 697 (Mo.1969); Gordon v. State, 684 S.W.2d 888, 890 (Mo.App. W.D.1985); State v. Risinger, 546 S.W.2d 563, 565 (Mo.App.Sprgfld.Dist.1977); State v. Cox, 539 S.W.2d 684, 687 (Mo.App.St.L.Dist.1976). “But this rule evolved out of representation of co[-]defendants or persons charged in related criminal matters.” Johnson, 549 S.W.2d at 350. Furthermore, such a per se rule would fail to acknowledge that to establish an actual conflict, counsel must have done something or failed to do something that was then lost to the movant, and that was detrimental to the movant’s interests and advantageous to another’s interests. Indeed, Ciarelli, Cox, and Risinger involved representation of defendants in related cases where one defendant testified against the other. In Gordon and Rising-er, a defendant obtained a more favorable disposition of his own charges in exchange for testifying against the movant.

In Gordon, a prosecution witness testified that he stole a gun and gave it to the movant on the night of the murder. 684 S.W.2d at 889. The movant’s trial counsel directly participated in successful efforts to obtain a favorable outcome in other criminal matters for the witness, and even asserted on the record the witness’s role in the movant’s murder trial as a basis for leniency. Id. at 890. The State did not charge the witness in connection with the stolen gun. Id. at 891.

In Risinger, the attorney appointed to represent the movant had represented a prosecution witness in a related case. 546 S.W.2d at 564-65. The witness had pleaded guilty and received a suspended execution of sentence and probation in exchange for his testimony against the movant. Id. at 564. Furthermore, the movant’s trial counsel had obtained confidential information about the witness’s juvenile activities in the course of representing the witness in the related case, and counsel could not ethically reveal that information in undertaking cross-examination of the witness in the movant’s trial. Id. at 566.

Ciarelli, Gordon, Risinger, and Cox involved more than previous representation of a prosecution witness in unrelated matters. Rather, these cases involved related offenses or other facts, such as a favorable plea bargain for the witness, that evidenced an actual conflict of interest— something done or not done by counsel and lost to the movant, that was detrimental to the movant and advantageous to another. This is not the case here. This case is more akin to State v. Dunmore, where the record revealed that the mov-ant’s trial counsel had previously served as a public defender, and in that capacity, filed an appellate brief for the person the movant allegedly hired to commit a murder. 822 S.W.2d 509, 511, 513 (Mo.App. W.D.1991). The Dunmore Court held that the movant’s claimed conflict of interest did not show ineffective assistance of counsel. Id. at 513. Here, the movant has failed to establish evidence of something done, or not done by counsel and lost to the movant, that was detrimental to the movant and advantageous to the witness. Thus, the movant has failed to allege facts establishing an actual conflict of interest that would entitle him to relief. And because the movant has failed to establish an actual conflict adversely affecting counsel’s performance, we do not presume prejudice. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Consequently, the movant would have to establish prejudice in order to be entitled to an evidentiary hearing or to establish ineffective assistance of counsel. Becker, 260 S.W.3d at 907. For the same reasons that the movant has failed to show that counsel’s performance was adversely affected, he has failed to establish prejudice.

We recognize that the possibility for conflict exists in circumstances such as the movant’s. However, the mere possibility of conflict is insufficient to impugn a criminal conviction. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. Rather, the movant must establish that an actual conflict of interest adversely affected counsel’s performance. Id. Under the facts present here, the mov-ant has not done so. We deny the mov-ant’s first point.

In his second point, the movant claims that trial counsel was ineffective for inducing the movant to unknowingly and involuntarily waive his right to testify at trial. The movant waived his right to testify immediately before the defense began its case. The movant argues that he wanted to testify to an alibi, but that counsel misled him into believing that she would present his alibi defense through other evidence so that the movant would not have to testify and disclose his criminal history. The movant contends that had he known his proposed testimony comprised the only evidence of his alibi, he would have testified, despite his criminal record.

Generally, trial counsel’s advice whether to testify is a matter of trial strategy, and does not constitute a ground for post-conviction relief, absent exceptional circumstances. Kuhlenberg v. State, 54 S.W.3d 705, 708 (Mo.App. E.D.2001). However, a defendant’s right to testify on his own behalf is fundamental, and only that individual can waive the right. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App. E.D.2003). A waiver of the right to testify, like a waiver of other constitutional rights, should be made voluntarily and knowingly. State v. Blewett, 853 S.W.2d 455, 460 (Mo.App. W.D.1993)(quoting United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987)). Unless the record conclusively shows that the movant voluntarily and knowingly waived the right to testify, an evidentiary hearing on the issue is necessary. Simmons, 100 S.W.3d at 146.

Here, the movant alleged that he informed counsel before trial that he had an alibi, provided details, and asked counsel to investigate. The movant asserted that trial counsel led him to believe she would present his alibi defense through other means, and advised him not to testify so that he would not have to reveal his criminal history. The movant contends that he followed counsel’s advice, believing that counsel would nonetheless present evidence of his alibi, which she ultimately failed to do. The movant does not allege that counsel incompetently advised him not to testify, nor does he deny that he informed the court of his decision not to testify. Rather, he claims that he unknowingly waived his right due to counsel’s misrepresentation. The movant asserts he would not have waived his right had he known that counsel would not present the alibi defense through other witnesses.

Pointing to the movant’s waiver on the record, the motion court found that the record refutes the movant’s claim. We disagree. The record does not conclusively refute the movant’s allegation that counsel caused him to make an unknowing waiver of his right to testify. The motion court also cited testimony of the State’s witnesses regarding the movant’s whereabouts a few hours before, and at the time of, the robbery. Perhaps the trial court cited this testimony to suggest that the movant did not suffer prejudice. But we presume that a violation of a constitutional right of this magnitude is prejudicial. Blewett, 853 S.W.2d at 461. Or perhaps the trial court pointed to this testimony to suggest that the jury would not have believed the movant’s alibi. But when the issue is the movant’s knowing waiver of the right to testify, the court’s opinion that the movant’s testimony would not have been believed is irrelevant. State v. Young, 882 S.W.2d 291, 293 (Mo.App. W.D.1994).

Similarly, the State’s argument misses the heart of the movant’s claim. In its brief, the State first argues that the mov-ant waived his right to testify by informing the court that he did not wish to testify. But this does not show conclusively that the movant’s waiver was knowing. The State next points out that in expressing dissatisfaction with counsel’s performance, the movant failed to raise the issue of either an alibi defense or his right to testify. This again does not conclusively show that the movant knowingly waived his right to testify. The State also argues that the movant’s alibi testimony would not have been admitted because he failed to file a proper notice of an alibi, and that the movant’s testimony would not have provided him with a defense. The issue, however, is not whether the movant could present an alibi believed by the jury, but rather whether the movant knowingly waived his right to testify.

We reiterate that violation of a constitutional right of the magnitude of the right to testify is presumed prejudicial. Blewett, 853 S.W.2d at 461. Furthermore, the movant pleaded that he was prejudiced. He argued that had he responded to the State’s evidence with his alibi testimony, a reasonable probability exists that the jury would have acquitted him.

The movant has pleaded facts, which if true, entitle him to relief on his claim of ineffective assistance of counsel and waiver of his right to testify. The only way to determine whether the movant knowingly and voluntarily waived his right to testify is through an evidentiary hearing. The motion court clearly erred in denying an evidentiary hearing to the movant on his claim that counsel misled him into making an unknowing and involuntary waiver of his right to testify. We reverse and remand for the limited purpose of holding an evidentiary hearing to determine the veracity of the movant’s claim that counsel misled him into waiving his right to testify. In all other respects, we affirm the motion court’s judgment.

GLENN A. NORTON, P.J., and MARY K. HOFF, J., concur.

      . State v. Hickey, 247 S.W.3d 593 (Mo.App.E.D.2008).

      . Our review of the briefs and record reveals that the witness is alleged to have an additional misdemeanor conviction for driving while license revoked, which was not adduced on cross-examination, but this does not alter our analysis.

      . The movant’s implication that a conflict existed where another attorney from the same public defender’s office represented the witness in unrelated matters lacks merit. In State v. Morrow, the fact that two attorneys from the public defender system defended both co-defendants did not create a conflict of interest, and the motion court properly denied the movant’s claim. 941 S.W.2d 19, 22 (Mo.App. W.D.1997). The ethical considerations that might arise in private law firms in civil litigation do not necessarily apply to the public defender's office. State ex rel. Public Defender Comm'n v. Bonacker, 706 S.W.2d 449, 451 (Mo. banc 1986). "In addition, the public defender commission has general authority to erect so-called 'Chinese walls' within its office, assuring that an attorney whose responsibilities are in conflict with another member of the staff will not be influenced by that association." Moore v. State, 934 S.W.2d 289, 292 (Mo. banc 1996).

      . Ciarelli involved privately retained attorneys in the same firm. 441 S.W.2d at 696.


author: PER CURIAM:

text:
    Carol A. MANN, Respondent, v. NFI MANAGEMENT CO., INC., Appellant.
    No. WD 71780.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Timothy P. Price, for Appellant.
    Chris Banks, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   ORDER

PER CURIAM:

Appellant, NFI Management Company, Inc. (NFI), appeals from the denial of its motion to set aside a default judgment entered by the Circuit Court of Clay County in favor of Respondent, Carol Mann, in her personal injury action against NFI. Finding a lack of a meritorious defense, we hold that the trial court did not abuse its discretion in denying NFI’s motion to set aside the default judgment.

Judgment affirmed. Rule 84.16(b).


text:
    Ellis Richard BERKOWITZ, Appellant, v. Marilyn Jo Ann BERKOWITZ, Respondent.
    No. WD 71551.
    Missouri Court of Appeals, Western District.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Michael L. Taylor and Benjamin S. Creedy, St. Joseph, MO, for Appellant.
    Jeffrey S. Bay, Kansas City, MO, for Respondent.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Ellis Berkowitz appeals the judgment of the Circuit Court of Platte County dissolving his marriage to Marilyn Berkowitz (“Wife”). He challenges the trial court’s award of maintenance to Wife and the trial court’s valuation of Wife’s interest in a medical office building. We affirm in this per curiam order and have provided the parties a memorandum explaining our ruling today. Rule 84.16(b).


author: LISA WHITE HARDWICK, Chief Judge.

text:
    U.S. NEUROSURGICAL, INC., Appellant, v. ST. LUKE’S CANCER INSTITUTE, L.L.C., Respondent.
    No. WD 71348.
    Missouri Court of Appeals, Western District.
    Sept. 21, 2010.
    As Modified Nov. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Richard E. McLeod, Esq., Kansas City, MO, for appellant.
    Thomas W. Wagstaff, Esq., Kansas City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Chief Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   LISA WHITE HARDWICK, Chief Judge.

This appeal arises from a summary judgment ruling that U.S. Neurological, Inc.’s (“USN”) breach of contract claim against St. Luke’s Hospital (“Hospital”) is barred by the four-year statute of limitations in Section 400.2A-506. The sole issue on appeal is whether the circuit court applied the correct statute of limitations. USN contends that the contract between the parties was a service agreement, to which a ten-year statute of limitations applies, and not an equipment lease, to which the four-year limitations period applies. For reasons explained herein, we affirm the summary judgment applying the four-year limitations period.

Factual and Procedural History

The parties hereto became involved in a dispute when the Hospital allegedly failed to make payments to USN pursuant to a “Gamma Knife Neuroradiosurgery Equipment Agreement” (“Agreement”). The 1993 Agreement relates to the use of the Gamma Knife, a neurosurgical device that delivers high doses of radiation to targeted areas of the brain for treatment of vascular disorders and tumors. Pursuant to the Agreement, which has a twenty-one year duration, USN agreed to provide the Gamma Knife for use at Research Medical Center, a predecessor in interest to Hospital. The parties also entered into a “Ground Lease Agreement,” which grants USN the use of the Hospital suite in which the Gamma Knife is located.

In May 2008, USN filed a Petition for Damages alleging that Hospital breached the payment terms of the Agreement. Hospital moved for summary judgment, asserting the petition was barred by the four-year statute of limitations for claims involving equipment leases under Section 400.2A-506 of the Uniform Commercial Code (“UCC”). USN filed a response, arguing that the Agreement between the parties is primarily a service contract governed by the ten-year statute of limitations in Section 516.110(1). Both parties agreed that the elapsed time between the alleged breach of contract and the filing of this lawsuit was greater than four years and less than ten years.

In granting the summary judgment motion, the circuit court determined the Agreement was an equipment lease and applied the four-year statute of limitations to bar the breach of contract claim. The court explained:

[T]he court finds that the Equipment Agreement (“Agreement”) and corresponding Ground Lease set forth a term certain in its duration of twenty-one (21) years. Furthermore, [Hospital] had exclusive authority to assign the Agreement to third parties and surrender dominion over the equipment without [USN’s] consent or authority. [USN] however, did not share this right and could only assign with [Hospital’s] written consent.
Finally, [Hospital’s] employees had the exclusive right and authority to use the Gamma Knife Equipment as well as determine instances of use. [USN’s] employees were permitted only to provide “ancillary and technical services required for the proper operation of the Gamma Knife Equipment.” Therefore, based upon the foregoing analysis, the Court finds that the above-entitled action is barred under Mo.Rev.Statute Section 400.2A-506(1).

USN appeals the summary judgment determination.

STANDARD OF REVIEW

On appeal from the grant of summary judgment, we apply the same criteria as the circuit court, and our review is “essentially de novo.” Huber v. Wells Fargo Home Mortg., Inc., 248 S.W.3d 611, 613 (Mo. banc 2008). Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. Because the material facts are undisputed in this case, our analysis will focus on whether Hospital is entitled to judgment as a matter of law based on the statute of limitations.

Analysis

In its sole point on appeal, USN contends the circuit court erred in applying the statute of limitations under the UCC because the Agreement between the parties is predominately a service contract and not an equipment lease. Both parties acknowledge that if the Agreement is construed as an equipment lease, the four-year UCC statute of limitations, Section 400.2A-506, is applicable, and that period had run before USN filed this lawsuit. The parties also acknowledge that if the Agreement is construed as a service contract, the ten-year statute of limitations in Section 516.110(1) is applicable, and the lawsuit can proceed.

Under the UCC, “[a]n action for default under a lease contract, including breach of warranty or indemnity, must be commenced within four years after the cause of action accrued.” § 400.2A-506(1). This provision in Section 2A of the UCC, which Missouri has adopted, applies “to any transaction, regardless of form, that creates a lease.” § 400.2A-102. The term “lease” is defined as “a transfer of the right to possession and use of goods for a term in return for consideration!.]” § 400.2A-103(j).

Hospital argues that the Agreement between the parties met all aspects of the UCC’s definition of a lease, and, thus, the circuit court correctly applied the four-year statute of limitations to the breach of contract claim. Under the terms of the Agreement, USN transferred the right to possess and use the Gamma Knife to the Hospital, for a period of twenty-one years, in exchange for payment. Hospital has the exclusive authority to use the Gamma Knife and to determine instances of use. To maintain control over the usage of the equipment, Hospital provides a neurosurgeon, a radiation oncologist, and a nurse. USN only supplies a physicist, who works at the direction of the Hospital’s neurosurgeon, to initiate operation of the equipment. Section 9.04 of the Agreement prohibits USN from dealing with patients or providing any medical services other than those “specific ancillary and technical services required for proper operation of the Gamma Knife Equipment.” In addition to the plain language of the terms of the Agreement, the title of the “Gamma Knife Neuroradiosurgery Equipment Agreement ” (our emphasis) lends obvious support to Hospital’s argument that it is a lease contract governed by the UCC.

USN argues that the Agreement is a hybrid or mixed contract for the lease of equipment and the provision of related services. With regard to such mixed contracts, “the test for whether the UCC applies is whether the predominant purpose of the contract is to render services with goods incidentally involved, or to transact a sale with labor incidentally involved.” Cent. Dist. Alarm, Inc. v. Hal-Tuc, Inc., 886 S.W.2d 210, 212 (Mo.App.1994).

USN asserts the predominant purpose of the Agreement was to provide a service to Hospital by treating patients with the Gamma Knife. USN relies on the following two provisions in the preamble to the Agreement:

WHEREAS, under a separate Lease Agreement, dated December 29, 1993, Hospital has agreed to lease to [USN] certain real property for the purpose of constructing a facility for the delivery of neuroradiosurgery services to Hospital’s patients and medical staff;
WHEREAS, upon and subject to the terms and conditions of this Agreement, [USN] is willing to make exclusively available to Hospital’s patients and medical staff the services of the Gamma Knife Equipment.

(emphasis added). USN points out that it leases the Hospital suite in which the Gamma Knife services are provided. USN also relies on Section 2.04 of the Agreement and related provisions, which obligate USN to provide a physicist and any other technical personnel to operate, maintain, and repair the Gamma Knife, and to provide training for physicians who use the equipment. Based on the assumption that the Agreement is primarily a service contract, USN argues that its breach of contract claim is governed by the ten-year statute of limitations in Section 516.110(1) provides for “[a]n action upon any writing, whether sealed or unsealed, for the payment of money or property.”

We disagree that the provisions identified by USN reflect the predominant purpose of the Agreement. While there are certainly service components included in the Agreement, those services are aptly summarized in Section 9.04 as “ancillary and technical services required for proper operation of the knife.” The Agreement expressly prohibits USN from dealing with patients or providing any medical services. Without the lease of the Gamma Knife to the Hospital for its exclusive use, there would be no service to the patients. Thus, under either the UCC definition or the predominant purpose test, we conclude that the Agreement is a lease of equipment and not a service contract.

Our conclusion is supported by key provisions in the Agreement that reinforce Hospital’s right to possess and use the equipment. Section 1.02 grants Hospital the first right of refusal if USN opts to sell the Gamma Knife or related supplies. Section 9.05 permits Hospital to assign its equipment usage rights to certain third parties without USN’s consent. Notably, USN does not have a similar right of assignment without Hospital’s consent.

Section 4.0 of the Agreement provides that USN’s sole compensation from Hospital is based on a percentage of the actual cash collected from “the use of the Gamma Knife Equipment and the Neuroradiosur-gery Facility.” This arrangement strongly indicates that the fundamental purpose of the contract is to permit Hospital’s use of the equipment. If the Agreement was intended as a contract for services, it is likely that USN’s compensation would have been based on the services rendered, taking into account the number of personnel it supplied and paid. See Bonebrake v. Cox, 499 F.2d 951, 959 (8th Cir.1974).

In light of the plain language of the “Gamma Knife Neuroradiosurgery Equipment Agreement” and the nature of the parties’ working relationship, we find no error in the circuit court’s determination that the Agreement is a lease for equipment. The lease is governed by the UCC, pursuant to which any action for default is subject to the four-year statute of limitations in Section 400-2A-506(l). USN admits that it failed to file the Petition for Damages within four years of Hospital’s alleged default on the payment terms. Accordingly, USN’s petition is barred by the statute of limitations, and Hospital is entitled to summary judgment as a matter of law.

Conclusion

We affirm the circuit court’s judgment.

All Concur.

      . All statutory citations are to the Revised Statutes of Missouri (2000) as updated by the Cumulative Supplement (2009), unless otherwise noted.

      . Section 400.2A-506 provides that "[a]n action for default under a lease contract, including breach of warranty or indemnity, must be commenced within four years after the cause of action accrued.”

      .Section 516.110(1) provides that "[a]n action upon any writing, whether sealed or unsealed, for the payment of money or property;" shall be commenced within ten years.

      . A licensed physicist is required to initiate operation of the Gamma Knife equipment because it contains radioactive materials. Hospital’s neurosurgeon would determine the dosage and nature of the treatment required for each patient and then direct the physicist to push the button to initiate operation of the knife.