source: Caselaw Access Project

author: Justice VENTERS.

license: Public Domain

text:
    Raymond McCLANAHAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000033-MR.
    Supreme Court of Kentucky.
    April 22, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Raymond McClanahan, stands convicted of one count of second-degree robbery, four counts of third-degree burglary, and one count of theft (over $300). He was sentenced to a term of imprisonment of thirty-five years after pleading pursuant to an unusual plea agreement. It is to that plea agreement and the manner in which the sentence was imposed that the attention of this Court has been directed. Because the sentence exceeds twenty years, the appeal is to this Court as a matter of right. Ky. Const. § 110(2)(b).

Because we conclude that Appellant’s sentence exceeds the maximum legal punishment allowable under the circumstances of this case, and we agree that the statutes and rules governing the imposition of the sentence were not properly observed, we reverse and remand this matter for further proceedings consistent with this opinion.

/. BACKGROUND

Appellant appeared before the Jefferson Circuit Court, along with several co-defendants, charged under three indictments. Indictment 06-CR-1910 charged Appellant with one count of criminal syndication, two counts of third-degree burglary, and two counts of theft by unlawful taking over $300. Indictment 06-CR-2479 chai'ged him with one count of third-degree burglary. Indictment 06-CR-3335 charged him with one count of second-degree robbery. The facts underlying the crimes for which Appellant was convicted are not germane to this appeal and have not been discussed in the briefs.

Appellant entered into a set of plea agreements with the Commonwealth to resolve all three indictments. Under Indictment 06-CR-1910, he agreed to plead guilty to two counts of third-degree burglary and one count of theft by unlawful taking (over $300). Under Indictment 06-CR-2479, he agreed to plead guilty to one count of third-degree burglary. He also agreed to plead guilty to second-degree robbery as charged in Indictment 06-CR-3335. In return, the Commonwealth agreed to recommend a total sentence of ten years in prison for all the charges, and would object to probation.

Because Appellant wanted to be released from jail pending sentencing so that he could tend to his family’s needs but was unable to post the required bail, the Commonwealth agreed that Appellant could be released on his own recognizance, provided that he agreed to what the trial court and the parties in this case referred to as a “hammer clause.” A “hammer clause” is a provision of a plea agreement, apparently used in some locales, that allows a defendant to be released on his own recognizance pending sentencing. Ordinarily, the likelihood of an additional prison sentence for a bail-jumping charge provides adequate incentive to assure that one released from custody without financial conditions will return to court when scheduled. A plea with a “hammer clause” differs by providing that, if a defendant fails to return to court for sentencing (or violates some other agreed-upon condition of release), the Commonwealth withdraws its original sentencing recommendation and the defendant agrees to serve a more severe sentence instead.

Each of Appellant’s plea agreements included a “hammer clause.” Thus, the Commonwealth would recommend a combination of consecutive and concurrent sentences that would result in a ten-year prison sentence as long as Appellant complied with the conditions of his release. However, if Appellant failed to appear for his sentencing hearing, failed to keep his appointment with the probation office for the production of his pre-sentence investigation (PSI), or was charged with any offense, Class B misdemeanor or greater, then instead of the ten-year sentence, he “agree[d] to serve a 40-year sentence” and to forfeit his right to seek probation or shock probation. The plea agreements did not specify how the individual sentences would be structured to achieve the forty-year term.

On August 24, 2007, Appellant appeared before the trial judge, who conducted the Boykin colloquy before accepting Appellant’s guilty pleas. Appellant was clearly aware of all the terms of his plea agreement. Other details of that hearing are provided below. The case was assigned for final sentencing in October 2007 and Appellant was released on his own recognizance. He failed to appear for sentencing, and a bench warrant for his arrest was issued.

Appellant was arrested on the warrant and was brought before the court for sentencing in December 2007. In the meantime, it was learned that four misdemeanor bad check charges had been placed against him since the entry of his guilty plea. At the hearing, Appellant moved to withdraw his guilty pleas and requested a continuance so that he could present evidence to show that when he pled guilty his judgment was impaired by the prescription medications he was taking for a psychiatric condition. He argued alternatively that the “hammer clause” should not be invoked and requested an opportunity to present evidence to explain his failure to appear and the intervening bad check charges. The trial court denied his motions and proceeded forthwith to impose the sentence, noting that Appellant’s violations had activated the “hammer clause” of the plea agreement. However, as the judge began to impose the forty-year sentence, she discovered that the sentences for the individual charges reflected in the guilty plea judgments added up to only thirty-five years. She then fixed his sentence at a thirty-five year sentence, and entered final judgments accordingly.

Appellant raised several issues on appeal. First, he argues that before suffering the enhanced sentence of a “hammer clause,” he was entitled to a jury trial on the factual issues that triggered the enhancement. He relies upon Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which holds that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and be proved beyond a reasonable doubt.” Next, he claims that the trial court improperly interpreted the plea agreement as imposing strict liability for any breach of the conditions of release, and thus allowed him no opportunity to show justification for his lack of compliance. Third, he argues that by pre-judg-ing the sentence that would be imposed, the trial court failed to exercise independent discretion required by the applicable statutes for the “meaningful” sentencing hearing. Finally, he argues that the trial court abused its discretion when it denied his motion to withdraw from the guilty plea and when it denied his motion for a continuance to obtain evidence in support of his motion. We reverse Appellant’s convictions because the plea agreement with the “hammer clause” resulted in the imposition of an unlawful sentence, and because we agree with Appellant’s argument that in the acceptance of the plea and imposition of the sentence, the trial judge did not exercise the independent discretion required for compliance with the requirements of KRS 533.010(1), 533.010(2), KRS 532.050(1), KRS 532.110(1) and RCr 11.02. Accordingly, we decline to address the remaining issues raised by Appellant.

II. ANALYSIS

A. THE IMPOSITION OF A SENTENCE IN EXCESS OF THE APPLICABLE STATUTORY MAXIMUM PENALTY IS IMPERMISSIBLE

This case draws the attention of this Court to the plea agreement concept referred to above as a “hammer clause.” In Jones v. Commonwealth, 995 S.W.2d 363 (Ky.1999), we upheld a similarly structured plea agreement. While both parties acknowledge the Jones holding, and neither party challenges the validity of the “hammer clause” concept, Appellant challenges the procedure by which the “hammer” provision in this case was activated, and the thirty-five year sentence that was imposed. The Commonwealth urges this Court to uphold Appellant’s sentence on the basis that, having agreed to serve a forty-year prison sentence if he violated the conditions of his release, Appellant simply “got what he bargained for,” citing Myers v. Commonwealth, 42 S.W.3d 594, 597 (Ky.2001) for the principle that a defendant in a criminal action may waive the statutory maximum sentence and agree to a sentence beyond the legal range of punishment. See also Johnson v. Commonwealth, 90 S.W.3d 39, 44 (Ky.2002). We reject the Commonwealth’s argument, and in so doing we conclude that our analysis in Myers was flawed, warranting its reconsideration. Appellant’s thirty-five year sentence exceeded the lawful range of punishment established by the General Assembly, and whether agreed upon or not, the trial court’s imposition of such a sentence is a violation of the separation of powers doctrine embodied in Sections 27 and 28 of the Kentucky Constitution, and is an abuse of discretion.

First, we note that our decision in Jones, 995 S.W.2d 363, provides no support for the “hammer clause” now before this Court. Jones was a case of first impression in which we upheld a plea agreement which called for a sentence of six years’ imprisonment with the proviso that if the defendant (Jones) failed to appear in court for sentencing, the Commonwealth would instead recommend a twenty-year sentence. Jones failed to appear for sentencing, and when he was eventually brought before the court for sentencing, the court imposed the twenty-year sentence as recommended by the Commonwealth. Guided by the decisions of federal courts in United States v. David, 58 F.3d 113 (4th Cir.1995); United States v. Rivera, 954 F.2d 122 (2nd Cir.1992); and United States v. Garcia-Velilla, 122 F.3d 1 (1st Cir.1997), we upheld the twenty-year sentence in Jones. Critical to that decision was our recognition of the fact that the sentence of twenty years was within the range established by the legislature for Jones’s crimes. See Jones, 995 S.W.2d at 366 (stating “[B]oth the six-year and twenty-year sentences were within the statutorily prescribed range and there was no impermissible reduction of charges or sentence offered.”). The same cannot be said for Appellant’s sentence in this case.

The forty-year sentence contained in the plea agreements’ “hammer clause,” as well as the thirty-five year sentence actually imposed, violate Kentucky law. KRS 532.110(l)(c) provides:

(1) When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime ... except that (c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years.
(emphasis added.)

KRS 532.080 provides, in pertinent part:

(6)(b) If the offense for which he presently stands convicted is a Class C felony or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.
(emphasis added.)

See Gibbs v. Commonwealth, 208 S.W.3d 848, 855 (Ky.2006) (reversing 105-year sentence on grounds that under KRS 532.080(6)(b) the longest sentence one could receive for a combination of Class C and Class D felony convictions was twenty years.)

Second-degree robbery, a Class C felony, was the highest class of crime for which Appellant was convicted. KRS 515.030. Therefore, the aggregate of the sentences to be imposed upon Appellant could not lawfully exceed twenty years. KRS 532.110(l)(c) does not give a trial court leeway to impose a greater sentence. To the contrary, it explicitly states, through its incorporation of KRS 532.080(6)(b), that the sentence “shall not exceed” twenty years. Unlike the sentence we upheld in Jones, Appellant’s sentence is not “within the statutorily prescribed range” of punishment. Jones, 995 S.W.2d at 366.

We return now to our reconsideration of Myers. The issue in Myers was raised by way of RCr 11.42, alleging the ineffective assistance of counsel who had advised Myers to accept a plea agreement for a prison sentence, which on its face, exceeded the limits authorized by KRS 532.110(l)(c). By holding that “a defendant may validly waive the maximum aggregate sentence limitation in KRS 532.110(l)(c) that otherwise would operate to his benefit,” Myers, 42 S.W.3d at 597, the Myers Court viewed KRS 532.110(l)(e) as simply an enactment creating specific sentencing rights for individual defendants, who may chose to forego them. We see the statute as an exercise of the General Assembly’s constitutional authority to establish a comprehensive and cohesive system of sentencing laws, including the range of punishments that are to be imposed in the name of the Commonwealth of Kentucky.

In Hoskins v. Maricle, 150 S.W.3d 1, 11-12 (Ky.2004), we recognized the extraordinarily strong separation of powers doctrine provided by Sections 27 and 28 of the Kentucky Constitution. In Hoskins we stated, “The power to define crimes and assign their penalties belongs to the legislative department....” Id. at 11 (emphasis added) (citing United States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 92 L.Ed. 823 (1948) (“[Djefining crimes and fixing penalties are legislative, not judicial functions.”)); Cornelison v. Commonwealth, 52 S.W.3d 570, 573 (Ky.2001) (“discretion to define the level of harm and the appropriate punishment is within purview of Legislature, not this Court”). Recently, in Sanders v. Commonwealth, 301 S.W.3d 497 (Ky.2010), we reversed a persistent felony offender conviction predicated upon a violation of KRS 218A.500 (Possession of Drug Paraphernalia) because KRS 532.080(8) expresses the clear and unequivocal mandate of the General Assembly that a persistent felony offender conviction shall not be based upon a violation of KRS 218A.500. No less deference is due to the General Assembly’s constitutional authority, expressed through KRS 532.110(l)(c), for setting the maximum punishment to be imposed for specific criminal convictions and combinations thereof, which in Appellant’s case is twenty years.

We have otherwise consistently recognized that sentences falling outside the permissible sentencing range cannot stand uncorrected. In Ratliff v. Commonwealth, 194 S.W.3d 258, 277 (Ky.2006), a trial judge failed to note in the final judgment which of the several multiple sentences totaling 105 years were to be served concurrently and which were to be served consecutively. We held, “[i]f the omission was a clerical error and the trial judge intended to impose a sentence in excess of seventy years, the sentence violates KRS 532.110(l)(c). The judgment must be vacated ... insofar as it imposes a maximum aggregate sentence in excess of seventy years.” In the opposite direction, Neace v. Commonwealth, 978 S.W.2d 319, 322 (Ky.1998) holds that the trial court properly corrected a jury verdict setting a lower sentence than the minimum provided by the statutes. We recognized that “[ajny other result would permit juries to rewrite penalty statutes and effectively nullify the sentencing laws ... [Tjhe jury’s sentencing recommendation fell outside the required statutory range, and the trial court properly corrected the sentence to conform to the law.”

Under Myers, the parties and the trial court may completely disregard KRS 532.110(l)(c) by accepting plea agreements to the contrary. Yet, we see nothing in the language of the statute to suggest that the General Assembly intended to excuse plea agreements from the mandatory provisions contained in the statute. Whether recommended by an errant jury or by the parties through a plea agreement, a sentence that is outside the limits established by the statutes is still an illegal sentence. We do not see how an illegal sentence set by a jury (as in Neace) does any more to “nullify the sentencing laws” than an illegal sentence imposed by a judge pursuant to a plea agreement. There is no sound rationale by which we should condemn the one as we condone the other. Under our Constitution, it is the legislative branch that by statute establishes the ranges of punishments for criminal conduct. It is error for a trial jury to disregard the sentencing limits established by the legislature, and no less erroneous for a trial judge to do so by the acceptance of a plea agreement that disregards those statutes.

Because it is the trial judge, and not the jury or the prosecutor or the defendant, that actually imposes a sentence by signing his or her name to the final judgment, it is to the judiciary that the legislative commandments of KRS 532.080(6)(b) and KRS 532.110(l)(c) are directed. A sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of discretion.

Our conviction in this regard is not swayed by the argument that Appellant consented to the illegal punishment. As stated above, the statutory limitations restrain only the authority of a judge to impose an unlawful sentence; they do not restrain a party’s ability to agree to one. We would not compel the executive branch to carry out a sentence of corporal punishment, such as a public whipping, stoning, or dismemberment of the sort that is lawful in some cultures, but not in our own, simply because the defendant consented. Our courts must not be complicit in the violation of the public policy embedded in our sentencing statutes by turning a blind eye to an unlawful sentence, regardless of a defendant’s consent. To the extent they hold otherwise, Myers, 42 S.W.3d 594, and Johnson, 90 S.W.3d 39, are overruled, along with any other decisions so holding.

Generally, plea agreements in criminal cases are contracts between the accused and the Commonwealth, and are interpreted according to ordinary contract principles. Covington v. Commonwealth, 295 S.W.3d 814, 816 (Ky.2009); O’Neil v. Commonwealth, 114 S.W.3d 860, 863 (Ky.App.2003). A widely recognized principle of contract law is that agreements that run contrary to law, or are designed to avoid the effect of a statute, are illegal and will not be enforced. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 821 (Ky.App.2008); and, 17A Am.Jur.2d Contracts § 239 (1991). Because the plea agreement involved here contravenes KRS 532.110(l)(c) and KRS 532.080(6)(b), it is a contract which our courts may not enforce.

We neither endorse nor condemn the general use of the “hammer clause” in a plea agreement. Except for Jones, 995 S.W.2d 363, we have had no opportunity to examine the concept. The sentencing extremes, ten years versus forty years, posited in this case may not be representative of a typical “hammer clause.” The making of a plea agreement is a matter between the accused and the Commonwealth. Our disapproval of the specific plea agreement involved here arises from the fact that its acceptance by the court resulted in the imposition of an illegal sentence. A “hammer clause” which remains within the legislatively authorized sentencing ranges remains an appropriate plea bargaining tool subject to the trial court’s review and exercise of its independent discretion as described in the following section of this opinion.

We conclude, for the reason set forth above, that the plea agreement entered into in this case should have been rejected. The acceptance or rejection of a guilty plea is covered by RCr 8.10, which provides in pertinent part:

If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in that guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

Accordingly, we reverse and remand this matter to the trial court for further proceedings permitting Appellant to withdraw his guilty pleas. As part of its plea negotiation, the Commonwealth agreed to the dismissal of the criminal syndicate charge and one of the theft charges under Indictment 2006-CR-1910. Reversing this matter and permitting Appellant to withdraw his pleas allows for the reinstatement of those charges, should the Commonwealth elect to do so.

B. THE TRIAL JUDGE FAILED TO FOLLOW THE REQUIREMENTS OF APPLICABLE STATUTES GOVERNING THE IMPOSITION OF THE APPELLANT’S SENTENCE

Appellant argues that the trial judge, by committing in advance of the sentencing hearing to apply the forty-year “hammer clause” sentence if a violation of the conditions occurred, failed to follow the requirements of applicable sentencing statutes, and failed to exercise independent judicial discretion at the sentencing hearing. We agree, and begin our discussion of the issue with a review of the relevant statutes.

KRS 532.050(1) states that “[n]o court shall impose a sentence for conviction of a felony, other than a capital offense, without first ordering a presentence investigation after conviction and giving due consideration to a written report of the investigation.” RCr 11.02 requires “[bjefore imposing sentence the court shall ... examine and consider the (pre-sentence) report ... [.]” KRS 533.010(1) provides “[bjefore imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge.” The trial court may impose a sentence of imprisonment (with exceptions not applicable here) only “after due consideration of the nature and circumstances of the crime and the history, character and condition of the defendant.” KRS 533.010(2).

Appellant directs our attention to Edmonson v. Commonwealth, 725 S.W.2d 595, 596 (Ky.1987), wherein we reversed a final judgment in a criminal case because “the trial judge had either made up her mind as to the sentence which would be imposed, or she had tentatively decided what sentence to impose unless the defendant came forward with some compelling reason for leniency.” There, the judge’s predisposition to a particular result was evident because the judgment imposing the sentence had been prepared before the sentencing hearing, and was simply handed to counsel when the hearing concluded. We held:

KRS 532.110(1) grants the trial court discretion to impose concurrent or consecutive sentences. However, such discretion must be exercised only after the defendant has had a fair opportunity to present evidence at a meaningful hearing in favor of having the sentences run concurrently or present other matters in mitigation of punishment. The statutes and rule [RCr 11.02] are not mere procedural formalities, but are substantive and may not be ignored.

Id. at 595.

In the instant case, while it does not appear that the final judgments were drafted in advance as in Edmonson, our review of the record of both the guilty plea hearing and the sentencing hearing leaves no doubt that the sentencing decision had been made prior to the sentencing hearing, and was made before “due consideration” could have been given to the “nature and circumstances of the crime and the history, character and condition of the defendant.” KRS 533.010(2).

When Appellant entered his guilty pleas, the judge told him, “If you don’t follow through [with the conditions of release], it’s forty [years] ... and, I’m telling you, it’ll be forty [years] and I guess I’m still in shock over that!” At final sentencing hearing, after denying Appellant’s motion for a postponement, the judge called attention to the plea agreement and said to Appellant’s counsel, “If he [violated a condition of release] he tvas going to serve forty years .... I will entertain any comments you have, if you’d like to make comments, but I will tell you that based on my review of the entire case, I will sentence in accordance with the recommendation [of forty years].” To Appellant, the judge said, “Now you’re asking the court not to follow the agreement when I told, you I would.” The judge disclaimed the sentencing decision, telling Appellant, “I didn’t create the time [referring to the forty-year sentence] ... Mr. McClanahan, you made the choice and I’m giving you your choice.” The judge then asked Appellant, rhetorically, “Is [the forty-year sentence] fair at this point? Is it just? Yes, because it is in accordance with the law.” As clearly as the pre-drafted judgments in Edmonson, the judge’s words demonstrated that independent judgment or discretion, as required by the statutes, had not been exercised in the imposition of Appellant’s sentence.

The above-cited statutes and RCr 11.02 allow a trial judge to impose a sentence in a felony case only after due consideration of the presentence report and all relevant factors. The judge told counsel at sentencing that his comments would be “en~ tertain[ed]” but that the decision to impose a forty-year sentence had been made. The superficial reference to a “review of the entire case” was no substitute for the “meaningful hearing” contemplated by our decision in Edmonson, and required by our statutes. The judge reminded Appellant that she had warned him four months earlier (well before the presen-tence investigation was done), what his sentence would be. That predisposition is inconsistent with Edmonson and the statutes.

The teaching of Edmonson bears repetition: The statutes and RCr 11.02 are not mere procedural formalities, but are substantive and may not be ignored. The imposition of a sentence in a criminal case is one of a trial judge’s most solemn responsibilities. In felony cases, it is the circuit court judge who shoulders the awesome weight of striking the balance between doing justice for the accused and vindicating the peace and dignity of the Commonwealth. It is the faithful adherence to the policies of justice embodied in our sentencing statutes and rules that preserves the great respect and high regard most citizens of this Commonwealth have for our trial court judges. We refer to the sound advice offered by Justice Martin E. Johnstone, writing for this Court in Matheny v. Commonwealth, 37 S.W.3d 756, 759 (Ky.2001):

For guidance to the bench and bar, we set forth the preferred procedure a trial court should follow when accepting a guilty plea that is made pursuant to a plea agreement. As stated by the Court of Appeals in Misher v. Commonwealth, [576 S.W.2d 238 (Ky.App.1978) ], “The sentencing court should merely accept the plea, note the recommendation or agreement concerning sentence, and set a day certain for sentencing. No sentencing at all should be carried out until KRS 532.050 has been complied with.” Id. at 241.

By assuring Appellant upon acceptance of his guilty plea that should he violate the terms of his release, the full force of the “hammer clause” would be dropped upon him, the judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), KRS 532.110(1), KRS 533.010(1) and (2), and RCr 11.02. Following Misher and Matheny avoids that problem.

III. CONCLUSION

For the reasons set forth above, the final judgments entered against Appellant are hereby reversed. This matter is remanded to the Jefferson Circuit Court for further proceedings consistent herewith.

All sitting. All concur.

      . We find nothing in the record to explain how the final judgments reflected four burglary convictions despite the fact that Appellant was indicted for, and pled guilty to, only three burglaries.

      . The language of the "hammer clause” in each of Appellant’s cases was substantially similar, but there were minor variations between each. The clause in the agreement dealing with indictment number 06-CR-1910 read:
      If the A fails to appear at sentencing, fails to attend the production of his PSI, or is charged w/ any offense, class B misdemean- or or greater between the plea and sentencing dates, the A agrees to serve a 40 year sentence w/ no motion for probation or shock probation.
      The clause in the agreement for indictment number 06-CR-2479 read:
      The C/W agrees to ROR the A pending sentencing, but if the A fails to appear for his PSI, fails to appear for sentencing, or picks up any charges class B misdemeanor or higher, the A agrees to serve a 40 year sentence w/ no motion for probation or shock probation.
      The clause in the agreement for indictment number 06-CR-3335 read:
      C/W agrees to ROR the A pending sentencing, but if the A fails to appear for his PSI, fails to appear at sentencing, or picks up any new charges class B misdemeanor or higher, the A agrees to serve a 40 year sentence w/ no motion for probation or shock probation.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The written judgments on Appellant’s guilty pleas do not conform to the actual pleas he entered, nor do they conform to the written plea agreements. He pled guilty to four Class-D felonies and one Class-C felony, with maximum sentences adding up to only 30 years. A footnote in Appellant’s Brief implies that the trial court later reduced the sentence from thirty-five years to thirty years, but we find nothing in the record to indicate that such an order was entered. The final judgments from which this appeal is taken reflect a thirty-five year sentence. Therefore, we shall refer to Appellant's sentence as being thirty-five years. Whether it be thirty-five years or thirty years is immaterial to our resolution of this appeal.

        .Apprendi involves a legislatively-authorized enhancement of sentence under New Jersey's hate crime statutes, and not as the quoted section might imply, a sentence not authorized by statute.

      . The federal cases cited above and in Jones are based upon the federal system of determinate sentencing guidelines. In each case, the federal prosecutor offered the defendant a sentence reduction, authorized by the federal sentencing guidelines, in return for a defendant’s "substantial assistance.” When the defendant in each case failed to comply with the agreed upon "substantial assistance,” the prosecutor declined to recommend the reduction, and the higher sentence was imposed. Significantly, in each case, the sentencing alternatives all complied with the federal sentencing guidelines and were within the range of penalties authorized by Congress.

      . See footnote number 4.

      . There are several statutory exceptions to this general rule. See e.g., KRS 532.110(3) (If a person is convicted of an offense that is committed while he is imprisoned in a penal or reformatory institution, during an escape from imprisonment, or while he awaits imprisonment, the sentence imposed for that offense may be added to the portion of the term which remained unserved at the time of the commission of the offense. The sentence imposed upon any person convicted of an escape or attempted escape offense shall run consecutively with any other sentence which the defendant must serve); KRS 533.060(3) (Sentence for crime committed while awaiting trial to run consecutively with sentence for crime for which person was awaiting trial). Our review of Appellant's charges indicates that none of the foregoing exceptions apply to him.

      .KRS 532.080 is the persistent felony offender sentencing statute.

      . "Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution...." Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922).

      . The convictions were for one class-A felony and seven class-C felonies, for which KRS 532.080 and KRS 532.110(l)(c) prescribe a maximum penalty of seventy years.

      . As set forth above, the sentence of forty years, or thirty-five years, was not "in accordance with the law.”

      . "Due consideration” and a "meaningful hearing” should have revealed the fact that Appellant pled guilty to five offenses but was being sentenced on six, one of which was not included in an indictment.


author: Justice SCHRODER.

text:
    John Tim JENKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2007-SC-000248-DG.
    Supreme Court of Kentucky.
    April 22, 2010.

      J. Guthrie True, Samuel Ryan New-comb, Johnson, True & Guarnieri, LLP, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Through this appeal, we recognize the admissibility of expert testimony regarding suggestive interviewing techniques which can affect the reliability or accuracy of a child witness’s memory or recall. Consequently, because significant evidence of improper methods existed in this case, the trial court erred in denying the defense’s request to call an expert witness on the subject. Therefore, we reverse the conviction and remand for a new trial consistent with this opinion.

In 2001, Appellant, John Tim Jenkins, a married father of three, became a volunteer with the Central Kentucky Big Brothers program. At the time, Jenkins was the Engineering Manager at the Osram Sylvania plant in Versailles, Kentucky. Jenkins testified that he had been a Big-Brother, and his wife a Big Sister, many years earlier (before they had their own children), and had enjoyed it. Jenkins testified that with his son leaving for college, and his wife and two teenage daughters involved in dance (and not interested in going to ballgames), he decided to get involved with Big Brothers again.

Jenkins completed the extensive Big Brothers application and screening process, and was matched with a “little brother,” J.S., then six years old, in September, 2001. J.S.’s parents were divorced. J.S. lived with his mother in Woodford County, Kentucky, during the school year, and spent summers with his father in Georgia. As his Big Brother, Jenkins would do various activities with J.S., including taking him to ballgames, bike riding, swimming, and to the movies. J.S. would also occasionally eat dinner at the Jenkins’ home with Jenkins and his wife and family. As part of Big Brothers’ standard procedure, periodic reviews were conducted with J.S. and his mother, concerning the match with Jenkins. Neither J.S. nor his mother ever expressed any concerns. In the reviews, the mother reported that J.S. talked about Jenkins a lot and looked forward to their activities together, that J.S. had fun with Jenkins, and that J.S. would be happy and excited after returning from his activities with Jenkins. Jenkins had been J.S.’s Big Brother for two years, with no concerns.

The questionable events giving rise to this ease began after work on October 8, 2003, when Jenkins took J.S., then eight years old, and his friend B.F., then six years old, on a planned swimming outing at the Falling Springs Arts and Recreation Center in Versailles, Kentucky. Jenkins and the boys arrived at approximately 7:15 p.m. Jenkins and the boys first swam in the smaller pool (the Center has two pools). Brittany King and Megan Davenport, two lifeguards on duty, became suspicious of the way Jenkins was playing with the boys, in that he was swimming up under them and lifting them up out of the water. King also thought it looked like Jenkins was “nibbling on their thighs.” King asked her supervisor, Greg Shanks, to observe. Shanks watched Jenkins and the boys, and saw nothing of concern.

Nevertheless, King and Davenport continued to watch the three attentively. After the three went to the big pool, King and Davenport again observed Jenkins swimming up under the boys and lifting them out of the water. They also thought Jenkins was kissing the boys on their faces and legs. While the three were playing in the pool, there was another family in the pool, the swim team and dive team were also practicing, and people were watching from the bleachers. No one else expressed any concern about Jenkins and the boys.

King and Davenport also expressed their concerns to the head lifeguard, Roger Maybrier. Maybrier looked in on Jenkins and the boys in the pool. He recognized that the three were playing a game of “shark” or “alligator,” where one person pretends to be the shark or alligator, and the others try to swim across the pool without getting “eaten.” Maybrier was not concerned.

When the three were finished swimming, Shanks followed them into the locker room. Jenkins and J.S. were using the shower in the handicapped shower stall, and B.F. was in the adjoining shower stall. The shower curtain was not completely drawn, so Shanks looked into the shower. He could see that Jenkins and J.S. were naked. Shanks did not see any physical contact between the two. Shanks went to get Maybrier, and when the two came back, B.F. had joined Jenkins and J.S. in the handicapped shower. Again, the curtain was not all the way closed, and both looked in. J.S. was sitting on the floor of the shower, B.F. was on one side of the shower, and Jenkins was on the other side. They looked into the stall several times but never saw any physical contact between Jenkins and either boy. Maybrier and Shanks decided to let Jenkins know someone was in there, by being loud and opening and closing lockers.

When the water stopped, B.F. came out of the shower first. Shanks asked who he came with. B.F. said Jenkins was “Big Brother Big Sister.” Shanks asked B.F. if he was having a good time, and he said he was. Because Jenkins was not a relative, Shanks and Maybrier suspected that something “fishy” was going on, and called the police.

Police officers arrived at the pool at approximately 8 p.m., and immediately separated Jenkins from the boys. Six-year-old B.F. was driven home in a police car and turned over to his mother. Eight-year-old J.S. was taken in a police car to the Versailles Police Department. Detective Rick Qualls was on call, and arrived at the Versailles police station at approximately 10:30 p.m. When Qualls arrived, J.S., scared and crying, was sitting in the break room. Because the break room was noisy, Qualls decided to have J.S. transported to the Woodford County police station, where it would be quieter. J.S. was again taken in a police car, to the Wood-ford County police station, arriving at about 11:00 p.m. J.S. was scared and wanted his mother. A social worker and J.S.’s mother arrived shortly thereafter. Qualls informed the mother that he was concerned J.S. may have been sexually abused because of the lifeguards’ suspicions, and because Jenkins had been reported nude in the shower with J.S. Qualls basically testified that he thought he knew what happened but that he needed to hear it from J.S.

Detective Qualls was not specialized in interviewing children. Qualls began interviewing eight-year-old J.S. around midnight. His mother was not allowed to be present during the interview. For the first half-hour, J.S. denied that Jenkins had done anything sexually inappropriate. Qualls would not accept J.S.’s denials, and would not let him go home. After unrelenting and suggestive questioning, J.S., who had been to school that day and was very tired, finally agreed with Qualls’ sug-gestión that he had been touched once. Qualls ended the interview around 1:80— 2:00 a.m. and released J.S. to his mother. Much of the interview was tape recorded. The next morning, Qualls and the social worker visited J.S. at his home for a second interview, which was tape recorded as well. J.S. agreed with Qualls’ suggestion that there was a second touching. On January 7, 2004, a four-count indictment was returned against Jenkins. The indictment charged two counts of first-degree sexual abuse of J.S., and two counts of indecent exposure for showering in the nude in the presence of J.S. and B.F.

Following the allegations of October 8, 2003, J.S. was put into sex abuse therapy. J.S. saw a therapist at least once a week, and attended group therapy as well. On March 1, 2004, J.S. was taken to the Children’s Advocacy Center, where he was interviewed by a forensic interviewer. Based on statements elicited in this interview, a second indictment was returned charging Jenkins with two counts of sodomy. The indictments were consolidated for trial.

At trial, the defense proposed to call Dr. Terence Campbell, a forensic psychologist, to testify concerning improper interviewing techniques which can result in unreliable reporting by child witnesses. Dr. Campbell had reviewed all of the discovery provided by the Commonwealth, including the interviews of J.S. He had prepared a lengthy report, and was prepared to testify as an expert witness that improper methods were used in this case. The Commonwealth objected to Dr. Campbell’s proposed testimony. The trial court held an extensive Daubert hearing on the matter. Dr. Campbell testified at length, both as to his qualifications as an expert, and as to the scientific acceptance of the principle that suggestive interviewing techniques can affect the reliability or accuracy of a child’s memory or recall. Then, Dr. Campbell analyzed the interviewing techniques used in this case, pointing out serious improprieties.

Following the Daubert hearing, the trial court agreed with the Commonwealth’s objection to Dr. Campbell’s testimony under a belief that, notwithstanding compliance with Daubert, Kentucky law prohibited this type of testimony. Because the trial court would not allow Dr. Campbell to testify, the defense requested that the tape of the interviews be played for the jury, so that the jury could decide if the allegations were made by J.S., or only in response to prompting and suggestions by Qualls. The Commonwealth objected to the playing of the tape, and the trial court sustained the Commonwealth’s objection.

The trial court granted a directed verdict on the indecent exposure charge involving B.F. Jenkins was found guilty of one count of first-degree sexual abuse of J.S., allegedly occurring on October 8, 2003, at Falling Springs, and one count of indecent exposure, as to J.S., in the shower at Falling Springs; and not guilty of all remaining charges. The trial court sentenced Jenkins, in accordance with the jury’s recommendation, to five years on the sexual abuse conviction, and a $250 fíne for indecent exposure.

Jenkins appealed his convictions to the Court of Appeals on a number of grounds. The Court of Appeals held that Dr. Campbell’s testimony was not precluded by Kentucky law, and remanded to the trial court to make findings under KRE 702. The Court of Appeals rejected the other errors. Jenkins moved for discretionary review, which we granted. The issues before this Court are: the admissibility of expert evidence of suggestive interview techniques with children; the admissibility of the interview tapes; and the sufficiency of the evidence to support the indecent exposure conviction. Because we are remanding for a new trial, the remaining issues are moot.

ADMISSIBILITY OF EXPERT TESTIMONY

Jenkins contends that the trial court erred in prohibiting his expert from testifying at the trial regarding the suggestive interviewing procedures used in this case. As stated earlier, the defense attempted to call Dr. Terence Campbell, a highly qualified forensic psychologist, to provide expert testimony on the scientific principle that improper interviewing practices can result in unreliable allegations, and the improper practices which were used in this case.

KRE 702 allows a qualified expert to testify in the form of an opinion or otherwise with respect to scientific, technical, or other specialized knowledge, provided that the testimony is scientifically reliable and will assist the trier of fact to understand the evidence or to determine a fact in issue. This requires a trial court to make a preliminary determination that the evidence is both relevant and reliable. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky.2000). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court set forth a non-exclusive list of factors to be considered when assessing the reliability of an expert’s prof-ered testimony: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the technique enjoys general acceptance within the relevant scientific, technical, or other specialized community. Goodyear, 11 S.W.3d at 578-79; see also Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39-40 (Ky.2004).

The trial court held a Daubert hearing on Dr. Campbell’s proposed testimony. Dr. Campbell first testified to his qualifications. Dr. Campbell had prepared a thirty-eight page report which outlined the scientific principles upon which he relied, and application of such to the interviews in this case, which was entered as an exhibit by avowal. For purposes of this opinion, we summarize Dr. Campbell’s testimony at the Daubert hearing, and his lengthy report: It is not only generally, but “absolutely”, accepted in the psychological community that young children are highly susceptible to suggestion, and that improper interviewing methods create a serious risk of unreliable responses and inaccurate recall, including false allegations of sexual abuse. Improper interviewing techniques include interviewer bias, leading or suggestive questions, coercive or “forced-choice” questions, repeated questions, and repeated interviews. A child’s memory and recall can become profoundly distorted by such techniques. Once a child’s memory has become distorted in this way, rehabilitation through a later, proper interview is nearly impossible. Dr. Campbell explained:

[Rehabilitation] is very, very unlikely because what happens, when children are interviewed in a biased, leading manner, [they] experience [what are] called source monitoring problems!.] [T]he source monitoring problems refer to the inability of the child to accurately discriminate between on the one hand events that are accurately recalled, versus on the other hand events that are only imagined. So what happens is inappropriate biased interviews suggest events to children that they imagine. The more the children are asked about these imaginary events, the more the child visualizes the imaginary events. The more the child imagines these imaginary events, the more familiar the events become. As events become more familiar, the child becomes genuinely and sincerely convinced that he is reporting accurate recall when in fact all he is doing is describing imaginary events that have been suggested to him via repeated leading suggestive questions.

Dr. Campbell testified that the aforementioned principles are based on accepted science in the field of human memory and recall. The principles are supported by longstanding and unanimous scientific research, can be and have been empirically tested, and continue to be supported by accumulating laboratory data. The principles have been subjected to peer review and publication, and are not only generally, but emphatically, accepted in the psychological community, and have been for years. Dr. Campbell’s report, entered as an exhibit to the Daubert hearing, expanded upon his testimony, and included extensive citation to peer-reviewed research and specific studies (and the methodology employed therein) and how the studies illustrated the principles to which he testified.

Dr. Campbell then proceeded to apply these accepted principles to the interviews in this case. Because this ease is being remanded for retrial, it is sufficient to say that, in his review of the interviews, Dr. Campbell identified numerous instances of improper techniques, including interviewer bias, and suggestive, leading, repeated, coercive and forced-choice questioning.

Following the hearing, the trial court ruled that, Daubert notwithstanding, it did not believe that expert testimony of improper or suggestive questioning of children was admissible in Kentucky, on grounds that its purpose would be to show that a witness was not being truthful, which would be an improper comment on credibility. It is well established that the credibility of witnesses, including children, is a matter for the jury. See Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky.1997). Credibility refers to whether a witness is being truthful or untruthful. The preferred expert testimony did not run afoul of this rule. Similar to expert testimony involving eyewitness identification, expert testimony that a witness was subjected to suggestive interview techniques pertains to the reliability or accuracy of the witness’s belief or recollection, not to the truthfulness or untruthfulness of the witness. Cf. Commonwealth v. Christie, 98 S.W.3d 485 (Ky.2002) (expert eyewitness identification testimony). To the contrary, such evidence assumes the witness is testifying truthfully — but may be mistaken in his or her belief. Accordingly, the trial court erred in ruling the evidence was inadmissible as a matter of law.

The Court of Appeals correctly noted that the analysis is simply whether the expert evidence is admissible under KRE 702. While this Court has not had occasion to consider the admissibility of expert testimony on improper interviewing techniques, numerous other jurisdictions which have done so recognize expert testimony in this area be admissible. See, e.g., Barlow v. State, 270 Ga. 54, 507 S.E.2d 416 (1998) (defendant in child molestation case entitled to introduce expert testimony as to proper techniques for interviewing children and whether the techñiques actually utilized were proper); State v. Gersin, 76 Ohio St.3d 491, 668 N.E.2d 486 (1996) (trial court erred in refusing to admit expert testimony regarding established protocols for interviewing children); State v. Sloan, 912 S.W.2d 592 (Mo.Ct.App.1995) (reversible error for trial court to exclude expert testimony on unreasonably suggestive interview techniques and methods); United States v. LeBlanc, 45 Fed.Appx. 893 (6th Cir.2002) (recognizing same Dr. Campbell’s testimony met Daubert standard); State v. Wigg, 179 Vt. 65, 889 A.2d 233, 239 (2005) (“[A] large majority of courts have held that the type of general expert evidence introduced in this case, explaining the proper and improper methods of examining children who may be victims of sexual assault, is admissible.”); State v. Speers, 209 Ariz. 125, 98 P.3d 560, 562 (Ariz.Ct.App.2004) (“[T]he trial court erred by refusing to allow Defendant to present expert testimony on the subject of the proper protocols for interviewing young children to avoid suggestiveness and the implanting of false memories.”); Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003) (recognizing possible compromise of child witness testimony due to suggestive questioning); State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1384 (1994) (“Experts may thus be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed.... ”); State v. Sargent, 144 N.H. 103, 738 A.2d 351 (1999) (permitting expert testimony on the possibility of false memory implantation in children through improper and suggestive interview techniques); State v. Kirschbaum, 195 Wis.2d 11, 535 N.W.2d 462, 466-67 (Wis.Ct.App.1995) (recognizing utility of expert testimony on suggestive interview techniques which can undermine the reliability of a child’s account of events).

Having reviewed the extensive record in this case, including the DaubeH hearing and Dr. Campbell’s report, we opine the trial court erred in excluding his testimony. KRE 702. Dr. Campbell was eminently qualified to testify as to the subject matter (his qualifications were undisputed). Dr. Campbell’s uncontroverted testimony and lengthy report clearly satisfied the Daubert standard to establish the scientific reliability of the principle that suggestive interviewing techniques can affect the reliability or accuracy of a child’s memory or recall. In fact, the Commonwealth does not dispute the scientific reliability of Dr. Campbell’s proposed testimony on appeal. Dr. Campbell’s testimony was highly relevant, as there was significant evidence that improper interviewing practices were used in this case. Stringer v. Commonwealth held it was not error for the trial court to exclude the same Dr. Campbell’s testimony on grounds that the interviews were not recorded, and, without the interviews, it would be mere speculation to conclude the interview techniques were improper. 956 S.W.2d 883, 892 (Ky.1997). Hence, in Stringer, the expert testimony was not relevant. Id. As the Court of Appeals recognized, this case does not have the impediment of Stringer, because in this case, the interviews were recorded. Dr. Campbell was able to review the recorded interviews, and apply the science directly to the interviews. Finally, we conclude, as have many of our sister states, that the testimony would assist the trier of fact, as the theories and principles are not within the knowledge of the average juror. See Barlow, 507 S.E.2d at 417-18 (recognizing that effect of interviewing techniques on children is a subject not within knowledge of a lay juror); State v. Huntley, 39 Kan.App.2d 180, 177 P.3d 1001, 1008 (2008) (recognizing that proper protocols and interview techniques for children is a matter not within knowledge of average juror); Sloan, 912 S.W.2d at 597 (“However, the crux of [the expert’s] testimony was intended to show that a substantial portion of the questions asked by [the detective] ... were ‘inappropriate.’ This represents evidence only an expert could give on matters not within the knowledge of a juror.”) (footnote omitted); Sargent, 738 A.2d at 354 (“Instead, we agree with those jurisdictions that find that the proper protocols and techniques used to interview child victim witnesses is a matter not within the knowledge and understanding of the average juror.”); Gersin, 668 N.E.2d at 488 (“Most jurors lack the knowledge of accepted practices in interviewing child victims, and expert testimony on the issue is therefore admissible.”); Kirschbaum, 535 N.W.2d at 467 (how improper interview techniques may have affected reliability of child’s recollections is a subject with which a lay juror may be unfamiliar).

Accordingly, the trial court erred in not allowing Dr. Campbell to testify as to the suggestive interview techniques used in this case. There was no evidence of sexual abuse, other than allegations which occurred only after highly suggestive interviews conducted by the untrained Detective Qualls. Accordingly, the error is not harmless, and we must reverse and remand for a new trial.

ADMISSIBILITY OF INTERVIEW TAPES

When the trial court would not allow Dr. Campbell to testify, the defense sought to introduce the tape recordings of Detective Qualls’ interviews with J.S., through Detective Qualls on cross-examination. The Commonwealth objected on hearsay grounds. The defense explained that it was not offering the recordings for the truth of the matter asserted therein (that the statements made by Qualls and J.S. on the tapes were true) but for the non-hearsay purpose of showing the suggestive and coercive manner in which the interviews were conducted, and as proof of the unreliability of the allegations by showing that they arose not from J.S., but as a result of suggestions and prompting by the detective.

The trial court erred in not allowing the tape recordings to be introduced. The taped interviews were not being offered for the truth of the matter asserted, nor to impeach J.S. The tapes were offered as proof that the investigation was flawed from the very beginning, by showing the coercive and suggestive manner in which the interviews were conducted and the allegations obtained. This is a proper, non-hearsay use. See Norton v. Commonwealth, 890 S.W.2d 632, 635 (Ky.App.1994). On retrial, the recorded interviews would be admissible.

INDECENT EXPOSURE

Jenkins was also convicted of indecent exposure, arising from testimony that he removed his clothing and was naked in the presence of J.S. in the shower at Falling Springs. Jenkins argues that the trial court should have granted a directed verdict on this charge.

At the time of Jenkins’ indictment, the indecent exposure statute read as follows: “A person is guilty of indecent exposure when he intentionally exposes his genitals under circumstances in which he knows or should know his conduct is likely to cause affront or alarm.” KRS 510.150. On a 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). “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

Viewing the evidence in the light most favorable to the Commonwealth, Jenkins, J.S., and B.F. entered the Falling Springs locker room after swimming to take a shower. Jenkins removed his swimming trunks, and showered in the same handicapped stall as J.S., who had also removed his trunks. B.F. had removed his trunks, and started showering in a different stall, but then joined Jenkins and J.S. in the handicapped shower. There was no evidence that Jenkins removed his swimming trunks for any purpose other than to take a shower and change clothes. In addition, the boys’ testimony provided no evidence that the removal of Jenkins’ swimming trunks had any effect on either of them. Indeed, the two employees who were watching the three in the shower described the three as taking showers in the nude. Male nudity in a men’s locker room with showers is certainly not unusual, and standing alone, it is not likely to cause affront or alarm, and is not a crime.

Because the Commonwealth did not present evidence that would prove all elements of indecent exposure, only nudity in a public shower, it would be clearly unreasonable for a jury to find guilt. Accordingly, the trial court erred in denying a directed verdict on this charge.

For the foregoing reasons, we reverse Jenkins’ convictions and remand the case to the trial court for a new trial consistent with this opinion.

MINTON, C.J.; CUNNINGHAM, NOBLE, SCHRODER, SCOTT, and VENTERS, JJ., sitting. All concur. ABRAMSON, J., not sitting.

      . For example:
      Qualls (referring to J.S. and Jenkins being in the shower): And did you touch his private parts?
      J.S.: No.
      Qualls: Did he touch your private parts?
      J.S.: No.
      Qualls: What about when you were in the pool and you all were swimming?
      J.S.: No.
      Qualls: No? Someone told me that there may have been some touching there.
      J.S.: No.

      .Even though J.S. had denied any inappropriate touching up to this point, he was not given the option of "none": only once or more than once.
      Qualls: You touched him just once. He touched you just once or has it been more than once.
      J.S.: Once.

      . No. 04-CR-00005.

      . No. 04-CR-00034.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The trial court held a full Daubert hearing, and there is a fully developed record on this issue sufficient for appellate review of admissibility under KRE 702. Therefore, a remand for the purpose of further findings was not necessary. Miller v. Eldridge, 146 S.W.3d 909, 922 (Ky.2004); Commonwealth v. Christie, 98 S.W.3d 485 (Ky.2002). The Commonwealth does not contend that a remand was necessary.

      . Dr. Campbell testified that he received his Ph.D. in Human Development and Clinical Psychology from the University of Maryland in 1970, and completed an internship in clinical psychology at the National Institute of Mental Health in Washington, D.C. Since 1970, he has researched and studied extensively in the area of human memory and recall, with emphasis in the area of proper and improper questioning methods of children with regard to sexual abuse allegations. Dr. Campbell has authored or co-authored five books related to forensic psychology. He has authored or co-authored at least forty peer-reviewed articles in the area of forensic psychology in general, and at least half a dozen peer-reviewed articles in the specific area of suggestive interview techniques in child abuse cases, which have been published in various professional and scientific journals. Dr. Campbell acknowledged that he has been recognized as an expert on the subject matter at issue in courts throughout the United States and his testimony thereon admitted under the Daubert standard.

      . Detective Qualls went into the interview assuming that J.S. had been molested and seeking to confirm this assumption. He would not accept J.S.'s denials as the truth. Qualls responded favorably to J.S. when he would agree with what was suggested.
      Dr. Campbell explained:
      Investigative interviews can go astray when they respond to interviewer bias pursuing one hypothesis and one hypothesis alone. Under no circumstances [can interviewers] resort to suggestive questions asked repeatedly. And when you start directing variations of the same question to a child and asking those question variations time and time again, you send a message to the child that says I'm less than enthusiastic with how you are answering this question. That’s how children will interpret it. And the child's interpretation is I’ve got to get this right, and to get this right I have to change my answer. And under those circumstances, without intending to, with no premeditated malice whatsoever, an interviewer can lead a child into confirming the interviewer's apriori expectations that the interviewer took into the interview.

      . Because the child truly believes the suggested version, cross-examination of a child whose memory has been affected by suggestive interviewing is ineffective. See, e.g., State v. Sargent, 144 N.H. 103, 738 A.2d 351, 353 (1999) ("Furthermore, if a child witness sincerely believes that the suggested sexual abuse actually occurred, cross-examination of that child witness may not effectively test the reliability of the child’s recollection.”); Barlow v. State, 270 Ga. 54, 507 S.E.2d 416, 418 (1998) (recognizing that cross-examination may be ineffective where child sincerely believes false recollections); State v. Kirschbaum, 195 Wis.2d 11, 535 N.W.2d 462, 467 (Wis.Ct.App.1995) (''[C‘]ross-examination of a child witness could be ineffectual if the child sincerely takes his or her recollections to be grounded in facts and does not remember the improper interview procedures which may have suggested them.”).

      . In Stringer v. Commonwealth, we held that the trial court did not err in excluding expert testimony on suggestibility, because there was no evidence that any suggestive or improper interview practices occurred. Hence, the testimony was irrelevant. 956 S.W.2d 883 (Ky.1997). In Pendleton v. Commonwealth, we held, applying the Snodgrass factors, that the trial court did not err in denying a last minute continuance in order for a defendant to obtain an expert witness on suggestibility. 83 S.W.3d 522 (Ky.2002). Pendleton did not hold that such testimony was inadmissible.

      . The Commonwealth in its brief before this Court agrees that Dr. Campbell could "testify that certain studies have shown that improper questioning techniques, i.e., leading questions, can result in unreliable reporting of sexual abuse by child witnesses.” However, the Commonwealth objects to Dr. Campbell's testifying that he reviewed the transcripts of the interviews and that improper methods were, in fact, used upon J.S. in this case. Per Stringer, however, it is the application of the principles to the facts of the case that makes the expert’s testimony relevant. Stringer, 956 S.W.2d at 892.

      . The statute was amended post-indictment to differentiate between first- and second-degree indecent exposure based on the age of the victim. See 2004 Ky. Acts 190; KRS 510.148 (indecent exposure in the first degree); KRS 510.150 (indecent exposure in the second degree).


text:
    Mary LASSITER (In Her Official Capacity as State Budget Director), Appellant, v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., et al., Appellees.
    No. 2008-SC-000904-DG.
    Supreme Court of Kentucky.
    April 22, 2010.

      M. Holliday Hopkins, Jason Patrick Renzelmann, Sheryl G. Snyder, Griffin Terry Sumner, Frost Brown Todd, LLC, Louisville, KY, Counsel for Appellant.
    Paul C. Harnice, Stoll, Keenon & Ogden, PLLC, Frankfort, KY, Walter L. Sales, Timothy Joseph Eifler, Bryon Riggs Lewis, Kathryn V. Eberle, Stoll, Keenon & Ogden, PLLC, Louisville, KY, Counsel for Appellees.
   Opinion of the Court by

Justice VENTERS.

The State Budget Director, Mary Lassi-ter, appeals from an opinion of the Court of Appeals dismissing her appeal from a Franklin Circuit Court decision. The circuit court’s decision held that a provision in the 2006-2008 Executive Branch budget bill shortening the escheat period for unredeemed traveler’s checks from fifteen years to seven years for the two-year budget period was unconstitutional. The Court of Appeals dismissed the appeal upon its conclusion that the Budget Director failed to name an indispensible party to the appeal, that is, the State Treasurer.

The Budget Director argues that her notice of appeal did effectively name the Treasurer by naming the Department of Treasury in the caption, and that, in any event, the Treasurer was not an indispen-sible party to the appeal. Because we conclude that the Treasurer was effectively named as a party to the appeal before the Court of Appeals via the naming of the Department of Treasury, we reverse and remand for a consideration of the appeal on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

American Express Travel Related Services, Inc., is the largest issuer of traveler’s checks in Kentucky. Traveler’s checks are redeemable at any time, and there is no expiration date for redemption. The company charges no fees for issuing the checks, but rather earns a profit on the business by investing the interest-free funds received from its traveler’s check customers during the float period prior to redemption. Thus, the presumption of a fifteen-year float period is crucial to its business model.

In accordance with the Uniform Unclaimed Property Act, Kentucky, like our forty-nine sister states, has codified the presumed abandonment period for traveler’s checks as fifteen years. See KRS 393.062(2). Accordingly, after fifteen years, traveler’s checks that have not been redeemed are presumed abandoned and escheat to the state pursuant to KRS Chapter 393. The state then begins to hold the property in trust for the traveler’s check owner, and, furthermore, begins to receive the benefit of the interest on the unclaimed funds. Only upon a finding by a court that the funds are actually abandoned does the state assume actual ownership of the funds, though there is evidence in the record that the Treasurer never actually pursues a judgment of this type.

During the 2006 Regular Session the House passed House Bill 380, a bill relating to the 2006-2008 biennial budget. 2006 Ky. Acts ch. 252. Included in the bill was Part III, Section 39 which shortened the presumed abandonment period for traveler’s checks from fifteen years to seven years for the two-year budget period. The enactment did not purport to permanently amend the fifteen-year period contained in KRS 393.062(2), but, rather, sought only to, by suspension, implement the change for the biennial budget period.

After the budget bill was signed into law, American Express filed an action in Franklin Circuit Court seeking injunctive relief prohibiting the enforcement of Part III, Section 39. The complaint named as defendants the Department of Treasury and the Treasurer in his official capacity. Upon motion by the Treasurer, the Budget Director was joined in the litigation as a necessary party. Since being added as a party, the Budget Director has taken the initiative in prosecuting the Commonwealth’s position in the case, that is, that Part III, Section 39 was legally enacted in all respects.

In due course, the parties moved for summary judgment. On January 31, 2007, the circuit court entered an order holding that Part III, Section 39 was unconstitutional as failing to comply with Section 51 of the Kentucky Constitution which states, “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length.” The circuit court’s holding was based upon its determination that Part III, Section 89 was not a lawful suspension of the escheat statute but was, rather, in substance and effect, an amendment failing to meet the requirements of Section 51 of the Kentucky Constitution. While not directed to any specific party, the order permanently enjoined the enforcement of Part III, Section 89.

On May 3, 2007, the Budget Director filed her Notice of Appeal to the Court of Appeals. As further discussed below, the notice contained multiple imperfections. Neither the Treasurer nor the Department of Treasury filed a separate notice of appeal. American Express filed a cross-appeal challenging the circuit court’s ruling granting the motion to add the Budget Director as a party to the litigation. On October 3, 2008, the Court of Appeals rendered an opinion and order dismissing the Budget Director’s appeal for failure to name an indispensable party, that is, the State Treasurer. We granted discretionary review.

NOTICE OF APPEAL ISSUES

The Budget Director contends that the Court of Appeals erred by dismissing her appeal for failure to name the Treasurer as a party to the appeal. She argues that her notice of appeal did effectively name the Treasurer by having named the Department of Treasury in the caption.

The Notice of Appeal stated, in relevant part, as follows:

AMERICAN EXPRESS TRAVEL RELATED SERVICES, INC. PLAINTIFF
v.
COMMONWEALTH OF KENTUCKY, KENTUCKY DEPARTMENT OF TREASURY, et al. DEFENDANTS
NOTICE OF APPEAL
Pursuant to CR 73.03, notice is given that Defendant, Bradford L. Cowgill, in his official capacity as State Budget Director, hereby appeals to the Kentucky Court of Appeals from the Judgment entered by this Court on January 31, 2007, a copy of which is attached as Exhibit A.
Appellant is Bradford L. Cowgill in his official capacity as State Budget Director. The name of the Appellee against whom this appeal is taken is American Express Travel Related Services Company, Inc., the plaintiff in this proceeding.
The Commonwealth of Kentucky, Kentucky Department of Treasury, Jonathan Miller, Treasurer was also a defendant in this proceeding, but is not a party against whom this appeal is taken.

There are flaws in the notice, and we do not publish it here as a model pleading. Our rules of civil procedure provide little guidance on what a notice of appeal should look like. CR 73.03 specifies the content required of a notice of appeal, and our emphasis remains on substance over style. Official Form 22 provides a format for the text, but not the caption. CR 84 directs that the official forms “are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” The body of Budget Director’s notice closely parallels Form 22. The term “et al.” as used in the caption is a practice specifically disapproved by CR 73.03. The concluding paragraph in the body of the notice is ambiguous in that it could be construed as intending to mean that the Treasurer is not to be a party at all to the appeal (American Express’s interpretation) or, alternatively, to mean that he is a party, but is allied until, not against, the Budget Director (the Budget Director’s interpretation.)

Whatever the shortcomings, however, except for tardy appeals and the naming of indispensible parties, we follow a rule of substantial compliance in regards to notices of appeal. Johnson v. Smith, 885 S.W.2d 944, 948 (Ky.1994). KRS 73.03(1) provides that “The notice of appeal shall specify by name all appellants and all appellees.... ” However, it is now well established that naming a party in the caption of the notice is, standing alone, sufficient to satisfy the rule, even though the party is not named in the body of the notice. Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky.2002); Blackburn v. Blackburn, 810 S.W.2d 55 (Ky.1991); R.C.R. v. Commonwealth, 988 S.W.2d 36 (Ky.App.1998). This rule recognizes that the principal objective of a pleading is to give fair notice to the opposing party. Blackburn, 810 S.W.2d at 56 (citing Lee v. Stamper, 300 S.W.2d 251 (Ky.1957)). Thus, although a party may not be named in the body of the notice, by listing the party in the caption, fair notice is given to the opposing party, and thus the objective of the notice is satisfied.

The Department of Treasury was named in the caption of the notice as a party to the appeal. As the Department did not itself appeal, as a non-appealing party, it was properly listed in the Appel-lee’s position in the caption. It is not fatal that the Department was misidentified as a “Defendant” rather than as an “Appel-lee.” See Schulz v. Chadwell, 548 S.W.2d 181, 184 (Ky.App.1977) (“There is no magic to the use of the term ‘appellee’ .... In the absence of any specific designation using the term ‘appellee,’ any party, other than an appellant, who is specifically named in the caption will be deemed to be an appellee.”). There was no other reasonable purpose for listing the Department in the caption except to name it as a party to the appeal. As such, the listing gave fair notice to American Express that the Budget Director was naming the Department as a party to the appeal, and thus under the Blackburn principle, the Department was properly named as an appellee to the appeal.

Citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Budget Director argues that, having properly named the Department of Treasury, by functional equivalence, she likewise named the Treasurer in his official capacity as a party to the appeal. We agree.

In Graham, the Supreme Court stated “Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ” Id. at 165, 105 S.Ct. 3099 (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Commonwealth v. Harris, 59 S.W.3d 896 (Ky.2001). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. (citing Brandon v. Holt, 469 U.S. 464, 471-472, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)). In summary, the holding in Graham, is that the naming of the agency head in his official capacity in a lawsuit is the functional equivalent of naming the agency itself.

By the same process of reasoning, and in the absence of a specific statutory, regulatory, or judicial rule to the contrary, we conclude that the converse must likewise be recognized, and that the naming of an agency to a lawsuit is equally the functional equivalent of naming the agency’s head in his official capacity. Here, we are cited to no authority which requires that the Treasurer in his official capacity and the Department he heads are to be treated as separate and distinct parties in litigation of this type. Moreover, no rational purpose would be served by making such a hyper-technical distinction in this case. Any judicial result — either benefit or detriment— would be binding upon both with equal force.

Thus, upon application of the Graham principle, we conclude that by naming the Department, the Budget Director, by functional equivalence, likewise named the agency’s head, the Treasurer in his official capacity.

There remains to be addressed, however, the ambiguous concluding sentence in the notice which states, “The Commonwealth of Kentucky, Kentucky Department of Treasury, Jonathan Miller, Treasurer was also a defendant in this proceeding, but is not a party against whom this appeal is taken.” The Budget Director contends that this was merely to clarify that while a party to the appeal, the Treasurer was not an adverse party against whom she was prosecuting the appeal, but rather was a party allied with the Budget Director’s position. American Express, on the other hand, argues that the sentence is a clear expression of the Budget Director’s intention to exclude the Treasurer as a party to the appeal.

The Budget Director’s explanation for including the sentence in the notice is reasonable, and its parsing is as valid as the interpretation suggested by American Express. Her inclusion of the sentence is entirely consistent with having named the Treasurer as a party, but edifying the court of his status as an allied party rather than an adverse party. In light of our conclusion, as set forth above, that the Budget Director otherwise properly named the Treasurer, we believe it injudicious to rework the outcome of the litigation based upon this ambiguous sentence, and accordingly will refrain from deciding the case by applying the interpretation urged by American Express.

In summary, the Budget Director, by naming the Department of Treasury in the caption, properly named that agency as a party to the appeal and by so doing correspondingly named its head, the Treasurer in his official capacity, as a party. Accordingly, the Court of Appeals erred by dismissing the appeal for failure to name the Treasurer as a party to the appeal.

INDISPENSIBLE PARTY ISSUES

The Budget Director contends that even if the Treasurer in his official capacity was not properly named as a party, nevertheless the case was improperly dismissed because the Treasurer was in any event not an indispensible party to the appeal. Because we have determined that the Treasurer in his official capacity was properly named, this issue is moot, and we need not address it on the merits.

CONCLUSION

For the foregoing reasons the opinion of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for a determination of the appeal on the merits.

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

      . During the course of this litigation several persons have held the position of Budget Director, including Bradford L. Cowgill and John Hicks. Mary Lassiter presently holds the position. Accordingly we use feminine pronouns to refer to the Budget Director throughout this opinion.

      . The circuit court denied the Treasurer's motion to add the Legislative Research Commission as a party.

      . In the 2007-2008 legislative session the House again passed legislation reducing the escheat period, but this time complied with the formal amendment procedures the Franklin Circuit Court had found to be lacking. American Express filed a lawsuit in United States District Court, Eastern District of Kentucky, Central Division (Civil Action No. 3: 08-58-DCR), again challenging the constitutionality of the enactment, including upon federal grounds. On January 26, 2008, the District Court entered an opinion and order holding the legislation unconstitutional upon federal substantive due process grounds. The federal litigation is presently pending before the Sixth Circuit Court of Appeals (Case No. 09-5898). Success by American Express in the federal litigation would moot the present state litigation.

      . While the discussion in Graham was in the context of a 42 U.S.C. § 1983 lawsuit, there is no practical reason the principle would not apply with equal force in the present litigation.


author: LAMBERT, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Tina RHODES, Appellee.
    No. 2009-CA-000336-DG.
    Court of Appeals of Kentucky.
    April 2, 2010.
    Jack Conway, Attorney General, John Hayne, Assistant Attorney General, Frankfort, KY, for appellant.
    John Cornett, Georgetown, KY, for ap-pellee.
    Before LAMBERT and STUMBO, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Judge.

Tina Rhodes was arrested and charged with driving under the influence. On October 27, 2008, the Fayette District Court ruled that Rhodes’ conduct on the night of her arrest amounted to a refusal to submit to an intoxilyzer examination. Subsequently, the Fayette Circuit Court reversed the District Court’s ruling and held that Rhodes’ conduct did not amount to a refusal to submit to the exam. After careful review, we agree with the Fayette Circuit Court and affirm.

On September 18, 2008, Rhodes’ vehicle was stopped by Officer Felinski. After determining that there was probable cause to believe that Rhodes was driving under the influence (DUI) of alcohol, Officer Fe-linski placed her under arrest. While Officer Felinski was trying to place Rhodes in the back of the police cruiser, she became combative, saying she did not want to wear the seat belt, etc. At one point, another officer, Officer Bradley, had to intervene in order to assist Officer Felinski in placing Rhodes in the back of the police cruiser. She was then transported to the Fayette County Detention Center.

Officer Felinski escorted Rhodes into the intoxilyzer room with Officer Bradley following closely behind. Once inside the intoxilyzer room, Rhodes “started getting belligerent again, stating ‘I’m not going to be in here with him. You don’t have to make me be in here with him.’” Rhodes broke loose from Officer Felinski’s hands and went out into the officer’s work area. Officers Felinski and Bradley then made an attempt to escort Rhodes back into the intoxilyzer room. According to the officers, Rhodes was refusing to walk and was placing all her weight on the officer’s hands. Once inside the intoxilyzer room, the officers tried to place Rhodes in a chair, but she was continuing to be combative. At this point, a third officer had to come in to help restrain Rhodes.

Officer Felinski testified that it was impossible for him to complete a reading of the implied consent warning to Rhodes despite trying on multiple occasions. He further testified that he “felt” like Rhodes would refuse to submit to the intoxilyzer testing, although he never made such a request.

On October 27, 2008, the Fayette District Court conducted a refusal hearing and ruled that Rhodes refused to submit to an intoxilyzer exam. Rhodes appealed this ruling to the Fayette Circuit Court, arguing that she was not read the implied consent form in its entirety and therefore was never specifically asked to submit to the intoxilyzer exam. Rhodes argued that there cannot be a refusal to submit to an intoxilyzer exam if there is not a request to submit to such exam.

On January 23, 2009, the Fayette Circuit Court issued its opinion reversing the decision of the district court and ruling that Rhodes did not refuse to submit to the exam because no request was made by the officers to conduct such an exam. This appeal now follows.

On appeal, the Commonwealth argues that despite the language of KRS 189A.105(2)(a), the officers acted appropriately given the circumstances and correctly determined that Rhodes refused to take the intoxilyzer exam. Essentially, the Commonwealth asks this Coui't to make an exception for officers being required to read the implied consent warning to arres-tees when they are unruly or belligerent. Because the statutory language is abundantly clear that police officers must read the implied consent to arrestees, we affirm the ruling of the Fayette Circuit Court.

KRS 189A.105(2)(a) states:

At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver’s license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.18 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.18; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

(Emphasis added). Further, KRS 189A.105(3) states:

During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.

As set forth in the above provisions, the implied consent warning is an integral part of the DUI statutes. It informs defendants of important rights and duties that are involved in such cases, as well as the consequences of their particular actions. The legislature has recognized the importance of the implied consent warning by the use of the mandatory language “shall.” While reading the implied consent warning to the defendant is mandatory, there is no statutory requirement that the defendants understand or acknowledge the reading of the implied consent warning. The statute merely requires that the officer read the implied consent warning.

The Commonwealth asks this Court to substitute the legislature’s mandatory language with its own permissive language. We decline to do so in light of the clear language utilized in the statute that this warning shall be read to all arres-tees or defendants. “[T]he 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)).

A review of the evidence in this case indicates that although Rhodes was belligerent, the officers could have still read the warning to her. Nothing requires that Rhodes listen to the warning, instead only that the officers read it to her. Only once the warning is read can Rhodes then be deemed to have impliedly or explicitly refused. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky.2004) (“In order for there to be a refusal, there must first be a specific request that the person take the test, not just an inquiry whether the person would like to take it.”) (Internal citation omitted).

In defending the decision not to read the implied consent warning to Rhodes, Officer Felinski stated that given Rhodes’ conduct, he feared for his safety and that of the other officers. While we certainly sympathize with the officers and understand that their safety is of utmost importance, Rhodes was in handcuffs with three officers present, and we do not see how reading a warning to a handcuffed defendant would put the officers at any further risk. The officer’s argument that they could not have read the implied consent warning to Rhodes, who was handcuffed, is without merit.

Based on the foregoing, we affirm the January 23, 2009, order of the Fayette Circuit Court reversing the Fayette District Court’s ruling that Rhodes refused to submit to the intoxilyzer exam. Given that Rhodes was never presented with the implied consent warning, she simply could not have refused to submit to the exam.

ALL CONCUR.