author: LAMBERT, Senior Judge. KELLER, Judge,

text:
    N.L., a Child Under Eighteen, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2007-CA-001216-DG.
    Court of Appeals of Kentucky.
    Aug. 14, 2009.

      Timothy G. Arnold, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
    Christopher S. Nordloh, Assistant Kenton County Attorney, Covington, KY, for Appellee.
    Before KELLER and WINE, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert 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, Senior Judge.

N.L., a child under eighteen, appeals from an opinion and order of the Kenton Circuit Court that affirmed the Kenton District Court’s judgment that he was a juvenile sexual offender. This court granted N.L.’s motion for discretionary review. Upon review, we vacate and remand for further proceedings consistent with this opinion.

N.L. and the victim in this case had an ongoing sexual relationship that revolved around their mutual drug use. On July 2, 2006, N.L. attended a party at which he consumed 10 to 11 shots of rum and smoked marijuana. At approximately 4:00 a.m., N.L. sent a text message to the victim asking if he could come over. He told the victim that if she wanted to “be with” him, she should stay at her apartment. N.L. then went to the victim’s apartment, where they smoked marijuana and engaged in sexual activity.

N.L. was arrested later that day after Covington police filed a complaint in the Juvenile Session of the Kenton District Court charging him with first-degree rape pursuant to KRS 510.040. According to the complaint, N.L. forced sexual intercourse on the victim. Specifically, he bit her on the neck, forced his penis and a cell phone into her vagina, and digitally penetrated her anus. The complaint further alleged that N.L. hit the victim with his hands and made her perform oral sex on him.

On September 1, 2006, N.L. entered a guilty plea to an amended charge of sexual misconduct, a Class A misdemeanor offense. The district court scheduled a dis-positional hearing to be held on October 28, 2006. In the interim, the Kentucky Department of Juvenile Justice (DJJ) conducted a mandatory juvenile sexual offender evaluation of N.L. pursuant to KRS 635.510(3). The dispositional hearing was later continued until October 27th because N.L. did not receive a copy of the evaluation report until the originally scheduled date of the hearing.

The evaluator, Myra McGlone, M.A., is a mental health professional with qualifications as a Licensed Psychological Associate who is employed by the DJJ’s Mental Health Branch. Her evaluation of N.L. contained the following information: family and youth history; offense-related information, including court records and interviews; sexual history; substance abuse/ use history; legal history; educational/employment history; medical/mental health; and her own personal observations/impressions based upon multiple interviews with N.L. and his mother.

According to McGlone, N.L. had known the victim for four to six months and described his relationship with her as revolving around marijuana use. The two began having sex one to two months after they met, but N.L. indicated that the victim understood that it was “just sex” and that they did not have a boyfriend-girlfriend relationship. N.L. told McGlone that he had been partying at a friend’s house on the night of the offense. He sent the victim a text message telling her to stay at her apartment if she wanted to “be with” him. N.L. admitted to McGlone that he intended for the victim to believe that he wanted to be her boyfriend so that she would stay at her apartment and he could smoke her marijuana. He further admitted: “I knew that was how it was going to work. If she smokes, she is ready for sex.” N.L. told McGlone that he and the victim had sexual intercourse and performed oral sex on one another, but he denied inserting a cell phone into her vagina or digitally penetrating her anus. He also denied using any force against the victim.

N.L. indicated that his brother woke him up the next morning at the victim’s apartment and told him that the victim had accused him of raping her. According to N.L., the victim told him that he had forced her to perform oral sex on him by pulling her hair. N.L. left her apartment, but the two continued to argue via text message. During this exchange, N.L. told the victim that she “was lying about some of it.” N.L. then went back to his house and went to sleep until the police arrived to arrest him.

Based upon her interview with N.L. and his mother and the other information about N.L.’s background with which she had been provided, McGlone, the evaluator, made the following observations:

[N.L.] used profanity/derogatory terms when discussing having sex. He was disrespectful when referring to the victim, e.g. calling her names. He seemed to view sex and relationships in an unhealthy manner. He said sex was not a big deal and appears to have poor boundaries in his relationships.
[N.L.] appears to engage in promiscuous and careless casual sex. His sexual behavior appears to be a “lifestyle” that, although selfish and disrespectful to women, is not necessary illegal unless he goes too far, as in this case. There are many adult men living similar “lifestyles” who never acquire charges. The crux of the risk appears to be the possibility that he’ll go too far in his self-centered use of the woman during his otherwise consensual sexual behaviors. He has shown that he is willing to manipulate/con another person to meet his needs. In this case, he manipulated [the victim] by misleading her to believe they could be together as a couple if she met him at her apartment, knowing he could smoke her marijuana and have sex with her. However, it does not appear that he engages in fetishes or other behaviors to achieve deviant arousal. Furthermore, it does not appear that he is a sexual predator or pedophile.
Along with the above-mentioned factors, it must also be considered that [N.L.] has a history of engaging in high risk behaviors. He has used marijuana and alcohol regularly for some time. He often engages in causal [sic] sexual relations while high on drugs. It appears [N.L.] has been living a lifestyle of self-indulgence, whether it is alcohol, drugs, or sexual behavior, and not considering the consequences. He possesses many thinking errors that justify his behavior. He has been unsuccessful in past community interventions (drug court, Job Corps). Ms. Monfort said [N.L.] was non-compliant while on probation in the community. Given this, it is unlikely [N.L.] would be successful at treatment in the community. He also has a great deal of unstructured time given he is not in school or working.
[N.L.’s mother] is aware of [N.L.’s] behavior but has been unable to manage it in the past. It seems [N.L.] is accustomed to being given a great deal of freedom by his mother. She agrees that he needs substance abuse treatment but does not believe he needs counseling to address his sexual behavior or boundaries.

McGlone’s assessment of N.L.’s risk of re-offending was conducted using the Juvenile Sex Offender Assessment Protocol II (J-SOAP II) test and the Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR 2.0) test. She found that the following factors suggested a higher risk of re-offending:

• Preoccupation with sexual thoughts.
• Cognitive distortions about healthy sexual relationships.
• Use of violence during sexual offense.
• The offense was planned/calculated.
• Diverse sexual assault behaviors.
• Charged/arrested for any legal problem before age 16.
• Negative peer associations.
• Parent not supporting sexual offense specific treatment.
• Environment supporting opportunities to re-offend sexually.
• Multiple types of offenses. His legal history involves both sexual and conduct offenses.
• Exposure to domestic violence in the past.
• Failure to accept responsibility for offense.
• No evidence of empathy.
• No evidence of remorse/guilt.
• Poor management of sexual urges. He has a sexually promiscuous lifestyle.
• Instability in school/work. He is not in school nor has a job.

She also noted that the following factors further served to elevate N.L.’s risk of re-offending:

• Substance abuse.
• He has been diagnosed "with Attention Deficit Hyperactivity Disorder.
• Failure to comply with and benefit from treatment.

McGlone’s evaluation ultimately resulted in the following conclusions and recommendations:

Pursuant to KRS 635.510, teenage juveniles adjudicated guilty of a misdemean- or sexual offense may be declared juvenile sexual offenders. The Judge has the discretion in this matter.
Overall, [N.L.] appears to be a moderate risk to re-offend and therefore should be declared a juvenile sexual offender. He should complete sex offender-specific counseling. A significant part of [N.L.’s] treatment should also involve treatment of his substance abuse issues and understanding of how this behavior places him at risk to sexually re-offend.

These findings were approved and signed by Mike Rinderle, Psy. D., a Licensed Clinical Psychologist with the DJJ. They were subsequently incorporated into a Predisposition Investigation Report filed by the DJJ on October 27, 2006. The report recommended to the district court that N.L. be declared a juvenile sexual offender and that he be committed to the custody of the DJJ, where he would be detained pending placement.

At the ensuing dispositional hearing, counsel for N.L. requested a continuance so that he could retain an expert to conduct an independent sexual offender evaluation in an effort to challenge the DJJ’s findings. The Commonwealth did not object to this motion but noted that it was satisfied with the DJJ’s evaluation and that its position was unlikely to change. The district court expressed skepticism because N.L. had already had a sexual offender evaluation. Counsel for N.L. responded by arguing that the evaluation was not independent and that the court would likely benefit from additional information on the issue before making its decision. N.L. also voiced objections to the content and conclusions of the DJJ’s evaluation and asked the court to find that committing him as a juvenile sexual offender was not the “least restrictive alternative.” The court rejected N.L.’s arguments and followed the DJJ’s recommendation that N.L. be classified as a juvenile sexual offender. No other testimony or evidence was presented. N.L. was committed to the custody of the DJJ and eventually placed in the DJJ’s group home in London, Kentucky.

N.L. filed a notice of appeal to the Kenton Circuit Court on November 14, 2006. He presented two questions: (1) whether he was entitled to a continuance of his dispositional hearing so that he could retain an expert to conduct an independent sexual offender evaluation; and (2) whether his commitment to the custody of the DJJ was the “least restrictive alternative.”

On May 11, 2007, the circuit court entered an opinion and order that affirmed the decision of the district court. The circuit court concluded that N.L. was not entitled to a continuance so that he could retain an expert because such was not required by KRS 635.510(3). That statute is as follows:

Upon final adjudication by the juvenile court under subsection (2) of this section, the juvenile court judge shall order a juvenile sexual offender assessment to be conducted on the child by the Department of Juvenile Justice treatment program or by a qualified professional approved by the program which shall recommend whether the child be declared a sexual offender and receive sexual offender treatment. Upon receipt of the findings of the assessment, the juvenile court judge shall determine whether the child shall be declared a juvenile sexual offender, and, if so, shall initiate a referral to the Department of Juvenile Justice treatment program for treatment.

The circuit court concluded that because the district court ordered and reviewed the assessment required by the statute and the DJJ’s recommendation that N.L. be classified as a juvenile sexual offender in its determination, no other action was required under the statute. The court also held that the placement of N.L. in the custody of the DJJ did not violate the “least restrictive alternative” requirement of KRS 600.010(2)(c) because he had demonstrated a prior history of being noncom-pliant while on probation and of requiring a high degree of monitoring. This appeal followed.

The questions presented for our review are whether N.L. was entitled to a continuance of his dispositional hearing so that he could retain the services of an expert witness, and whether his commitment to the custody of the DJJ was the “least restrictive alternative.”

We first address N.L.’s argument that the district court erred by denying his motion to continue so that he could procure an independent sexual offender evaluation. Essentially, the district court concluded, and the circuit court agreed, that N.L. was entitled only to the sexual offender evaluation provided for in KRS 635.510(3), i.e., the one conducted by the DJJ.

As a general rule, trial judges have broad discretion to grant or deny a continuance. Woodall v. Commonwealth, 63 S.W.3d 104, 128 (Ky.2001). Consequently, we do not interfere with the exercise of that discretion unless it is clearly abused. Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky.1957). With that said, however, the considerable discretion given to trial courts in such matters does not authorize the refusal of a continuance when circumstances show that justice requires one. Samuels v. Commonwealth, 154 Ky. 758, 159 S.W. 575, 578 (1913). We may overrule a trial court’s decision to deny a continuance “where, for example, established rules of practice and the accused’s fundamental rights are disregarded[.]” Knuckles v. Commonwealth, 261 S.W.2d 667, 669 (Ky.1953).

The circuit court was correct that there is nothing within the language of KRS 635.510(3) suggesting that a defendant may use an expert witness to challenge the conclusions of a juvenile sexual offender assessment. On the other hand, neither is there anything within that provision that prohibits a defendant from doing so. Indeed, such evidence appears to be expressly permitted by KRS 610.110, which addresses dispositional hearings for juvenile status and public offenders — including juvenile sexual offenders — under KRS Chapters 630 and 635. KRS 610.110(1).

Of particular note, KRS 610.110(2) provides:

At the disposition, all information helpful in making a proper disposition, including oral and written reports, shall be received by the court in compliance with subsection (1) of this section and relied upon to the extent of their probative value, provided that the parties or their counsel shall be afforded an opportunity to examine and controvert the reports.

We also note that KRS 610.110(1) specifies that “[t]he disposition shall determine the action to be taken by the court on behalf of, and in the best interest of, the child[.]” (Emphasis added). These legislative directives would not be satisfied if courts were permitted to merely rubber stamp the recommendations of the DJJ without allowing juveniles a fair opportunity to challenge and rebut those recommendations. Instead, we are of the opinion that the General Assembly explicitly rejected such a practice by requiring that “all information helpful in making a proper disposition ... shall be received by the court” to assist in its decision and that “the parties or their counsel shall be afforded an opportunity to examine and controvert” any reports tendered at the disposition. KRS 610.110(2). This language demonstrates a clear intent on the part of the General Assembly to provide courts with probative information from all concerned parties so that they can make informed decisions regarding the best interests of the child. It also reflects an intent to allow juveniles the opportunity to controvert any reports, such as a dispositional assessment, offered against them.

The use of expert testimony is one obvious method with which to rebut a dis-positional assessment. In W.D.B. v. Commonwealth, 246 S.W.3d 448 (Ky.2007), the Supreme Court of Kentucky dealt with another juvenile sexual offender case in which the question of what evidence should be allowed at a disposition hearing was in issue. The Court addressed the question of whether the trial court erred in declining to hold a Daubert hearing to determine the reliability of the methods used by the DJJ in evaluating the appellant for treatment as a sexual offender. The appellant requested the Daubert hearing to challenge the reliability and validity of the tests used to assess his risk of re-offending. Those tests were the same J-SOAP II and ERASOR evaluations that were used here.

The Court ultimately concluded that the appellant was not entitled to a Daubert hearing to challenge these tests because the DJJ evaluator had been subject to cross-examination and because the appellant had had the opportunity to refute the results of the sexual offender assessment. Id. at 458. What is notable is that the appellant refuted those results through the use of an independent expert witness who conducted his own sexual offender assessment to counter the report that had been produced by the DJJ pursuant to KRS 635.510(3). Id. at 457-58. While the Supreme Court did not explicitly hold that a juvenile may utilize the services of an independent expert in a sexual offender dispo-sitional hearing, it may be inferred from its opinion that the practice is permitted. Moreover, such an inference is consistent with the plain language of KRS 610.110(2). We also note that the Court has previously looked favorably upon parties being allowed to use expert witnesses to rebut risk assessment reports presented at a sentencing hearing where permitted by statute. See Hyatt v. Commonwealth, 72 S.W.3d 566, 575 (Ky.2002).

Accordingly, we conclude that the district court erred in denying N.L.’s motion for a continuance, and we therefore vacate and remand for a new disposition hearing in which N.L. shall be allowed to present evidence on his behalf pursuant to KRS 610.110.

Because of our decision to vacate and remand, we need not address the parties’ remaining arguments. However, our examination of the record compels us to observe that before a juvenile offender is committed to the custody of the DJJ, the court must demonstrate compliance with KRS 600.010(2)(c). This statute provides that prior to removal from his home “[t]he court shall show that other less restrictive alternatives have been attempted or are not feasible in order to insure that children are not removed from families except when absolutely necessary[.]”

We have reviewed the record of the dispositional hearing and the district court’s dispositional order and note that the court failed to make the findings required by KRS 600.010(2)(e). We emphasize that the plain language of the statute makes such findings compulsory. See X.B. v. Commonwealth, 105 S.W.3d 459, 461 (Ky.App.2003); cf. Vandertoll v. Commonwealth, 110 S.W.3d 789, 795-96 (Ky.2003); KRS 446.010(30).

Accordingly, the opinion of the circuit court is vacated and this claim is remanded to the Kenton District Court for further consistent proceedings.

WINE, Judge, concurs.

KELLER, Judge, concurs in result and files separate opinion.

KELLER, Judge,

concurring in result.

As the majority has correctly noted, as a general rule trial judges have broad discretion to grant or deny a continuance. Woodall v. Commonwealth, 63 S.W.3d 104, 128 (Ky.2001). In this case, the district court did in fact grant a four-day continuance to N.L.’s counsel due to the fact that N.L.’s counsel’s first chance to receive and therefore review the juvenile sexual offender assessment report (hereinafter report) was the day of the dispositional hearing. The continuance was granted to allow time for N.L.’s counsel to analyze the report and prepare any appropriate court examination. While I agree with the majority that the mandates of justice require some limitation on the considerable discretion given to trial courts in the granting or refusal of a continuance, I disagree that the facts of this case render that the district court abused its discretion. As noted by the majority, the Department of Juvenile Justice (hereinafter DJJ), may undertake a juvenile sexual offender assessment pursuant to the authority of KRS 635.510(3). Furthermore, pursuant to this statute, upon receipt of the findings of the assessment the juvenile court judge still has the discretion to determine whether the child should be declared a juvenile sexual offender. A review of the audio record in the matter before us reveals that at the dispositional hearing, N.L.’s counsel made a second motion for continuance and request for an ex parte hearing. It is somewhat unclear from this writer’s review of the record the exact purpose for the ex parte hearing requested by N.L.’s counsel. However, N.L.’s counsel does cite the potential confinement of N.L. for up to three years and the need for additional time to provide a response (assum-ingly to the report) already tendered to the court. The Commonwealth stated on the record it had no objection to defense counsel’s request.

A further review of the record reveals that the court was unclear as to the reason for the requested ex parte hearing as the court specifically questioned N.L.’s counsel regarding same. Further, it is this writer’s opinion after review of the audio record of the hearing that N.L.’s counsel did not directly address the court’s question on this matter. Additionally, the court stated that it was concerned that N.L. had been in detention too long and that a further delay would only further lengthen his detention time. Therefore, the court ordered N.L.’s disposition be implemented “per the recommendations of DJJ.” The court clearly articulated a sound and reasonable basis for denying the motion for a continuance, and it appears from the record that the court was referencing the best interest of N.L. Therefore, it is my opinion that the district court did not abuse its discretion.

However, a review of KRS 31.185, which references ex parte requests for funds reveals the following:

The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.

KRS 31.185(2) (emphasis added).

The aforementioned mandates that once a defense attorney requests an ex parte hearing under the statute, the court shall conduct the hearing ex parte and on the record. The district court should have conducted an ex parte hearing at the request of N.L.’s counsel. At the conclusion of an ex parte hearing authorized by KRS 31.185(2), the district court retains the discretion to decide whether or not public funds shall be expended as requested. Therefore, nothing in this opinion shall be construed as directing the district court to order that public funds shall be used to obtain a second juvenile sexual offender assessment by a provider of the defendant’s choice. It should also be noted that it was unclear to the district court and it is unclear from the record as reviewed by this writer what exact purpose N.L.’s counsel had in mind for the requested ex parte hearing. District courts, in particular juvenile court divisions, handle many matters at an often rapid pace to keep up with the demands of their docket. It is incumbent on counsel to make clear to the court what exact relief they are requesting when that request is made.

Furthermore, the majority is critical of the district court for failing to make findings as required by KRS 600.010(2)(c). While it would have been preferable for the dispositional order to contain some additional reference to the court’s decision to commit N.L. to DJJ, the court record in and of itself references N.L.’s prior history of non-compliance while on probation. The majority cites us to X.B. v. Commonwealth, 105 S.W.3d 459, 461 (Ky.App.2003), to support its position in reference to the district court’s failure to make compulsory findings. However, as noted in footnote three of that opinion, “[h]ad the record clearly indicated that X.B. had been before the court on previous occasions and that the court had attempted lesser restrictive alternatives, then the result herein may have been different.” Id. at 461. That precise factual scenario is supported by the record in this case which reveals that N.L. had been noncompliant while on prior probation with the district court.

Accordingly, I would hold that the opinion of the circuit court, upon discretionary review from the district court, be vacated and this matter remanded to the Kenton District Court so the court may hold a hearing as mandated by KRS 31.185(2).

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


source: Caselaw Access Project

author: HARRIS, Senior Judge.

license: Public Domain

text:
    Philip J. GOODMAN, Appellant, v. GOLDBERG & SIMPSON, P.S.C.; Steven A. Goodman; and Wayne F. Wilson, Appellees.
    No. 2008-CA-000921-MR.
    Court of Appeals of Kentucky.
    Oct. 16, 2009.
    Rehearing Denied Feb. 25, 2010.
    Discretionary Review Denied by Supreme Court Nov. 10, 2010.

      Katherine K. Yunker (argued), Theodore E. Cowen, Lexington, KY, for appellant.
    Raymond G. Smith (argued), Louisville, KY, for appellees, Goldberg & Simpson, P.S.C. and Wayne F. Wilson.
    Richard G. Segal (argued), Louisville, KY, for appellee, Steven A. Goodman.
    Before ACREE and LAMBERT, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris 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

HARRIS, Senior Judge.

Philip Goodman appeals from a summary judgment granted in favor of Goldberg & Simpson, P.S.C., Steven A. Goodman, and Wayne F. Wilson dismissing his tort claims relating to the distribution of assets from the estates of Leah and Lawrence Goodman. After a careful review of the record, briefs, and oral arguments, we are persuaded that there are no genuine issues of material fact. Accordingly, we affirm.

Leah and Lawrence Goodman were the parents of appellant, Philip Goodman, and appellee, Steven Goodman. Leah Goodman died testate in 1977. Lawrence Goodman died testate in 2004. During their lifetimes, the Goodmans operated a jewelry store known as the Jewel Box. When Leah died, Lawrence was appointed executor of her estate. At this time, Steven was a third-year law student and assisted with the administration of Leah’s estate. According to the terms of Leah’s will, she made a specific bequest of her undivided one-half (1/2) interest in a coin collection to Philip and Steven. The remainder of the estate was divided into two equal parts. Leah devised the assets allocated in part I to Lawrence. The other assets in part II were distributed in trust for Lawrence with income to him for life. When Lawrence died, the remaining balance in part II was to be distributed in equal shares to Philip and Steven.

On August 12, 1983, Philip signed: (1) a first and final Settlement regarding Leah’s will that was filed with the probate court; (2) an agreement to terminate the trust established under Leah’s will; and (3) a release of any and all claims concerning Leah’s trust. It is undisputed that these documents were signed under oath and that Philip understood each document. However, Philip now alleges that he made a side agreement with Lawrence at that time, which consisted of Lawrence agreeing to leave half of his estate to Philip and half to Steven. Philip continued to believe that he and Lawrence had verbally agreed to such a distribution. Philip also alleged that Steven was aware of the oral agreement and that both Lawrence and Steven continued making representations regarding such a distribution until the time of Lawrence’s death in 2004.

The equal distribution of Lawrence’s es-. tate among Philip and Steven was impossible because Lawrence married Evelyn Goodman in 1981. Lawrence and Evelyn executed a prenuptial agreement immediately before the wedding. According to Steven, it was on display for everyone in attendance to see. The prenuptial agreement expressly provided that Evelyn would receive the home, life insurance proceeds, and at least one-third of Lawrence’s estate. Between 1985 and 2002, Lawrence executed six wills, all of which left Lawrence’s entire estate to Evelyn with the exception of specific items that were left to Philip and Steven. In late 2001, appellee, Wayne Wilson, prepared separate wills for Lawrence and Evelyn and a revocable trust agreement for Lawrence. These documents were executed on January 2, 2002. After Lawrence died in 2004, Philip alleged that he was informed for the first time that a revised will had been prepared by Goldberg & Simpson, the firm where both Steven and Wilson worked as attorneys. Philip contends that until Lawrence died, Steven and Lawrence continued to make the same representations they had made for over twenty years, viz., that the will had not been changed and that Philip and Steven would each receive one-half of the estate.

On March 16, 2005, Philip filed suit against Steven, Wilson, and Goldberg & Simpson alleging: (1) fraud and intentional misrepresentation; (2) intentional interference with contract; (3) professional negligence and legal malpractice; (4) breach of fiduciary duty; (5) intentional infliction of emotional distress; and (5) violations of the rules of professional conduct. The trial court entered summary judgment dismissing all of Philip’s claims on December 3, 2007. Philip filed a motion to vacate the judgment, which the trial court denied on April 22, 2008. This appeal from the summary judgment and the order denying the motion to vacate the judgment followed. Additional facts will be developed as necessary.

Philip first argues that summary judgment was inappropriate because the intentional tort claims of fraud and interference with contract against Steven are supported by evidence in the record, which demonstrates the existence of genuine issues of material fact.

The standard of review for summary judgments is well-established.

Summary judgment is appropriate when “ ‘as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.’ ” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky.1991) (quoting Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)). In using the word “impossible” in Steelvest, we have acknowledged that it “is used in a practical sense, not in an absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky.1992). Furthermore, the party opposing summary judgment “cannot rely on the hope that the trier of fact will disbelieve the mov-ant’s denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Steelvest, 807 S.W.2d at 481 (internal quotations omitted) (citation omitted).
.... This Court has often stated that “speculation and supposition are insufficient to justify a submission of a case to the jury, and that the question should be taken from the jury when the evidence is so unsatisfactory as to require a resort to surmise and speculation.” Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky.1951).

O’Bryan v. Cave, 202 S.W.3d 585, 587-88 (Ky.2006). “Because summary judgments involve no fact finding, this Court reviews them de novo, in the sense that we owe no deference to the conclusions of the trial court.” Blevins v. Moran, 12 S.W.3d 698, 700 (Ky.App.2000).

Philip contends that Steven made fraudulent representations about Lawrence’s estate plans and that his allegation creates a genuine issue of fact.

In an action for fraud in Kentucky,

the party claiming harm must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury.

United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky.1999). It is also a well-settled rule that “a misrepresentation to support an allegation of fraud must be made concerning a present or-pre-existing fact, and not in respect to a promise to perform in the future.” Filbeck v. Coomer, 298 Ky. 167, 182 S.W.2d 641, 643 (1944).

The representations regarding Lawrence’s estate that Philip alleges Steven made began in the mid-1980s and continued after Lawrence’s death in 2004. The alleged representations all refer to the future act of Philip and Steven each receiving one-half of Lawrence’s estate. Additionally, there is no evidence whatsoever that the alleged representations were made with inducement to be acted upon. Even if Steven did make the alleged representation that he and Philip would each receive one-half of Lawrence’s estate, Philip has provided no evidence that he relied upon these representations to his detriment other than he would have initiated criminal proceedings against Lawrence.

Next, Philip argues that summary judgment was inappropriate on his claim of intentional interference with contract. We disagree because there was no evidence of the existence of a contract between Philip and Lawrence.

KRS 394.540(1) states:

A contract to make a will or devise, or not to revoke a will or devise or to die intestate, if executed after June 16, 1972, can be established only by:

(a) Provisions of a will stating material provisions of the contract;
(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(c) A writing signed by the decedent evidencing the contract.

(Emphasis added).

Philip maintains that he and Lawrence Goodman entered into an oral contract whereby Lawrence agreed to devise one-half of his estate to Philip in consideration of Philip’s forbearance to pursue criminal and civil charges against Lawrence related to the administration of Leah Goodman’s estate. KRS 394.540(1) clearly states that a contract to make a will cannot be created orally. We further note that even if the purported agreement had conformed to the requirements of KRS 394.540(1), it would nevertheless be void as against public policy.

“Agreements calculated to impede the regular administration of justice are void, as against public policy, without reference to the question whether improper means are contemplated or employed in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation by refusing them recognition in any of the courts of the country. Within the condemned category are agreements to compound a crime or a penal action; ... agreements to stifle or prevent a criminal prosecution, or to unduly influence its termination; ... agreements to conceal the fact that a party is breaking the law; or agreements interfering with the proper discharge of the duties of a judicial officer or person charged with the enforcement of the law. * * ⅜ All agreements, it is said in a recent case, relating to proceedings in court, civil or criminal, which may involve anything inconsistent with the impartial course of justice, are void, although not open to the charge of actual corruptness, and regardless of the good faith of the parties or of the fact that no evil resulted therefrom.” Kimbrough v. Lane, [74 Ky. 556] 11 Bush. 556 [ (1875) ]; Barclay v. Breckinridge, [61 Ky. 374] 4 Metc.[Met.] 374 [ (1863) ]; Gardner v. Maxey, [48 Ky. 90] 9 B. Mon. 90 [ (1849) ]; Swan v. Chandler, [47 Ky. 97] 8 B. Mon. 97 [ (1847) ]; Miller v. Payne, 7 Ky. Law Rep. 288 [ (1885) ]; Wheeler, etc., Mfg. Co. v. Hord, 4 Ky. Law Rep. 240 [ (1882) ].

Jones v. Henderson, 189 Ky. 412, 225 S.W. 34, 36 (1920) (emphasis added). Therefore, the claim for intentional interference with the performance of a contract must fail as a matter of law because there was no contract.

Philip cites Lonnie Hayes & Sons Staves, Inc. v. Bourbon Cooperage Co., 777 S.W.2d 940, 942 (Ky.App.1989), in support of the proposition that the enforceability of a contract is not a precondition to a tort action regarding the performance of a contract. This argument is misplaced because Lonnie Hayes dealt with the Statute of Frauds, KRS 355.2-201(1). The Statute of Frauds concerns the enforceability of certain types of contracts whereas KRS 394.540(1) specifically concerns the formation of contracts to execute a will. The supposed contract in this case did not conform to the requirements of KRS 394.540(1). According to the clear language of that statute, no contract was formed. By way of comparison, the Statute of Frauds simply prohibits the enforceability of certain otherwise properly formed contracts that are not in writing. In the Lonnie Hayes case, the contract at issue was valid, but unenforceable by virtue of the Statute of Frauds. In the present case, there was no valid contract as a matter of law.

Next, Philip argues that there was sufficient evidence to preclude summary judgment on his claim that Steven aided and abetted Lawrence’s breach of fiduciary duty to Philip. Philip argues that Lawrence owed a fiduciary duty to him as a beneficiary of Leah Goodman’s estate. Philip argues that this fiduciary duty continued after he had released his claims against the estate because of the oral agreement.

Philip signed a release of all claims involving the trust of Leah Goodman. He received the $20,000.00 to which he was entitled. Philip admitted that he did, in fact, sign the document. As stated above, there was no contract for Lawrence Goodman to devise one-half of his estate to Philip. Lawrence did not owe Philip a fiduciary duty as an intended beneficiary or otherwise. Therefore, the claim for aiding and abetting breach of fiduciary duty must fail as a matter of law because there was no duty.

Next, Philip argues that the evidence precluded summary judgment on his claim for the tort of outrage. The elements for the tort of outrage are as follows:

1. The wrongdoer’s conduct must be intentional or reckless;
2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
3. There must be a causal connection between the wrongdoer’s conduct and the emotional distress; and
4.The emotional distress must be severe.

Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky.1996). The issue of whether conduct is so outrageous as to permit recovery is a question of law for the court to decide. Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky.App.2007).

[T]he tort is not available for “petty insults, unkind words and minor indignities.” Nor is it to compensate for behavior that is “cold, callous and lacking sensitivity.” Rather, it is intended to redress behavior that is truly outrageous, intolerable and which results in bringing one to his knees.

Id. (internal citations omitted).

We have reviewed the voluminous record in this case. The only support for Philip’s claim is his own allegation. There was no contract, much less any concrete evidence to establish that Steven committed any wrongdoing against Philip, intentionally or otherwise. There is no evidence that Steven attempted to cheat Philip out of his inheritance or that Steven unduly influenced Lawrence’s will. In fact, the two brothers received substantially the same amount under Lawrence’s will. Philip never challenged Lawrence’s will directly. Moreover, it was Lawrence’s prerogative to dispose of his estate as he saw fit. This is a case involving an unfortunate estrangement among family members. Given the circumstances of the entire case, as a matter of law the conduct alleged does not sink to the depths required to constitute outrageous conduct.

Next, Philip argues that Steven breached his fiduciary duty as Philip’s attorney and also committed malpractice.

In Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky.App.1978), this Court stated:

The relationship of attorney-client is a contractual one, either expressed or implied by the conduct of the parties. The relationship is generally that of principal and agent; however, the attorney is vested with powers superior to those of any ordinary agent because of the attorney’s quasi-judicial status as an officer of the court; thus the attorney is responsible for the administration of justice in the public interest, a higher duty than any ordinary agent owes his principal. Since the relationship of attorney-client is one fiduciary in nature, the attorney has the duty to exercise in all his relationships with this client-principal the most scrupulous honor, good faith and fidelity to his client’s interest.

Beyond Philip’s bare supposition, there is no evidence that Steven acted as his attorney. There was no written contract to perform legal services. The conduct of Philip and Steven does not support the implication of an attorney-client relationship. The legal service which Philip alleged that Steven provided consisted of occasional assurances that they would each receive one-half of Lawrence’s estate. There is no evidence that Steven “brokered” the alleged oral agreement. There is evidence that Philip harbored a deep mistrust of Steven. They only spoke or met on rare occasions. There is no evidence that any discussion regarding his father’s estate was anything more than a conversation among family members. Therefore, because there was no attorney-client relationship, the claim of legal malpractice against Steven must fail.

Philip next argues that attorney Wilson and Goldberg <& Simpson also breached fiduciary duties to him and committed malpractice. Philip argues that the alleged misdeeds of Steven should be imputed to Goldberg & Simpson under the theory of respondeat superior. We disagree because there is no record evidence to support these claims.

As stated above, Philip did not have an attorney-client relationship with Steven. Therefore, Philip did not have any legal relationship with Goldberg & Simpson. Further, there is no indication whatsoever that any of the alleged wrongdoing committed by Steven was within the scope of his employment with Goldberg & Simpson. It is undisputed that Wilson had no knowledge of the purported agreement between Philip and Lawrence Goodman. None of Lawrence’s prior wills reference any agreement. Wilson and Evelyn Goodman both testified that the will reflected Lawrence’s intent. Lawrence signed the will. The probate court accepted Lawrence’s •will and Philip never challenged the will directly. There was no evidence that any person other than Wilson drafted Lawrence’s will. There is no evidence that Wilson or Goldberg & Simpson had any knowledge of the purported agreement. Moreover, Wilson and Goldberg & Simpson owed a fiduciary duty to Lawrence, not to Philip.

Next, Philip argues that Goldberg & Simpson owed a duty to him as an intended third-party beneficiary of Lawrence’s will. We disagree.

Attorneys may be held liable for professional negligence where third parties were the intended beneficiaries of their legal representation. Hill v. Willmott, 561 S.W.2d 331, 334 (Ky.App.1978). However, in such cases, the attorney’s services must have been “primarily and directly intended to benefit” the third party. American Continental Ins. Co. v. Weber & Rose, P.S.C., 997 S.W.2d 12, 14 (Ky.App.1998).

We cannot conclude that Goldberg & Simpson’s services to Lawrence were primarily and directly intended to benefit Philip. Goldberg & Simpson’s service to Lawrence consisted of drafting a will that would give effect to his wishes regarding the disposal of his estate. The evidence in this case overwhelmingly demonstrates that this occurred. Philip simply did not receive what he had hoped for from his father’s estate. Lawrence’s will was never challenged. There is no evidence of any undue influence. The only evidence indicating that Goldberg & Simpson had any knowledge of Philip and Lawrence’s purported agreement was Philip’s assertion that Lawrence should have told them about it. Summary judgment was appropriate because there is no affirmative evidence in support of this claim beyond mere supposition.

Finally, Philip argues that summary judgment was premature because the trial court entered judgment prior to the completion of discovery. The record reveals otherwise. Philip filed his complaint on March 16, 2005. After two years, the ap-pellees moved for summary judgment. The trial court allowed another six months of discovery before ruling on the motion. The record in this case is copious, containing approximately 4,000 pages of deposition testimony and sixteen volumes of pleadings. Philip had the opportunity to supplement the record and did, in fact, do so in his motion to vacate the trial court’s judgment. Philip argues now that there is significant information that he has not yet been able to obtain through discovery, but does not specify what that information would be. Summary judgment was timely and appropriate because there were no genuine issues of material fact.

For the reasons noted above, the summary judgment entered in Fayette Circuit Court on December 3, 2007, and the order denying the motion to vacate judgment entered on April 22, 2008, are affirmed.

ALL CONCUR.

      . We also note that in his brief in this Court, Philip has waived his claims against Wilson and Goldberg & Simpson except for professional negligence.

      . Including 2,380 pages of trial record, 10 volumes of depositions, 2 videotapes, 1 volume of sealed pleadings, 1 volume of exhibits; the parties’ briefs contain 88 appendices.

      . See footnote 3, supra.


author: CAPERTON, Judge.

text:
    Byron Dewayne SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-000770-MR.
    Court of Appeals of Kentucky.
    Oct. 23, 2009.
    Discretionary Review Denied by Supreme Court Nov. 10, 2010.

      S. Chad Butcher, Lexington, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Bryan D. Morrow, Assistant Attorney General, Frankfort, KY, for appellee.
    Before CAPERTON and STUMBO, Judges; BUCKINGHAM, Senior Judge.

      . Senior Judge David C. Buckingham, sitting as Special Judge by Assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

CAPERTON, Judge.

Byron Dewayne Smith entered a conditional plea of guilty on April 21, 2008, reserving the right to appeal from the Fayette Circuit Court’s adverse determination on his suppression motion entered January 7, 2008. At the heart of Smith’s appeal is whether' the Kentucky Constitution affords greater protection for its citizens than its federal counterpart when the police perform a search of one’s trash cans left for collection and then subsequently use the information gathered therefrom to obtain a search warrant. After a review of the arguments presented by the parties, the record, and the applicable law, we affirm the Fayette Circuit Court.

On September 6, 2007, a search warrant for 2716 Hayden Park Lane was executed based on the affidavit sworn by Detective David Lewis. Detective Lewis based his affidavit on information gathered over the course of six months from numerous anonymous tips and three independent investigations commonly referred to as “trash pulls.” Smith filed a motion to suppress the evidence obtained by the search warrant and argued that the search warrant was not adequately supported by the affidavit and the information contained therein was inaccurate and misleading.

The trial court held a hearing on the matter. In contention at the hearing was Smith’s whereabouts prior to the last trash pull, whether the information used in the search warrant was stale, and the accuracy of the information contained within the affidavit. Smith testified that he was out of town from September 4, 2007, till September 6, 2007, and that he did not put his trash can out for collection on or before he left on September 4, 2007. Detective Lewis testified in accordance with his affidavit. He also testified that the trash cans in the neighborhood were placed in front of the residences and that the only trash can searched was associated with Smith’s address. Detective Lewis further testified that he did not believe that anything was wrong with the warrant, i.e., he executed it in good faith.

After hearing the testimony presented by the parties, the trial court found that the information contained in the affidavit was not stale. The court further found that Smith presented ample evidence to establish that he was in Chicago prior to the day the trash was to be picked up. However, while Smith testified that his trash can was in the garage, Detective Lewis explained that the trash pull was taken from the trash can that was associated with 2716 Hayden Park Lane. While there is discrepancy in the testimony, the court found that the search warrant was adequately supported by the affidavit and that the information in the affidavit was accurate and not misleading.

Thereafter Smith entered a conditional guilty plea and was sentenced to ten years. It is from the trial court’s order overruling his motion to suppress that Smith now appeals.

Smith presents this Court with three arguments as to why the trial court wrongly denied his motion to suppress the evidence obtained in the execution of a search warrant based on Detective Lewis’s affidavit. First, Smith argues that the trial court’s findings were not supported by substantial evidence. Second, Smith argues that, as a matter of public policy, Section 10 of the Kentucky Constitution should be held to afford greater protection than the Fourth Amendment of the U.S. Constitution. Third, Smith argues that this Court should require an articulable individualized suspicion for a warrantless trash pull.

The Commonwealth counter-argues that sufficient evidence existed to uphold the search warrant affidavit. Further, the Commonwealth counter-argues that Section 10 of the Kentucky Constitution provides no greater protection than its counterpart, the Fourth Amendment of the U.S. Constitution, and that Detective Lewis did not need any suspicion to conduct the trash pull.

At the outset we note that our standard of review of the trial court’s decision on a motion to suppress requires us to assess whether the trial court’s findings of fact are supported by substantial evidence. If they are, then they are conclusive. See Kentucky Rules of Criminal Procedure (RCr) 9.78. Substantial evidence means “[e]vidence that a reasonable mind would accept as adequate to support a conclusion” and evidence that, when “taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men.” See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).

If the findings of fact are supported by substantial evidence, then “[biased on those findings of fact, we must then conduct a de novo review of the trial court’s application of the law to those facts to determine whether its decision is correct as a matter of law.” Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App.1999)). In the matter sub judice, we will review the sufficiency of the affidavit underlying the search warrant in a commonsense, rather than hypertechnical manner. Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky.2005).

In support of his first argument, that the trial court’s findings were not supported by substantial evidence, Smith alleges numerous items of misinformation provided in the affidavit to obtain the search warrant. The alleged defects may be summarized as (1) staleness of the information provided in support of the search warrant and (2) that Detective Lewis was reckless and misleading with the information he failed to provide.

Smith argues that if these alleged errors had been rectified, then the judge would not have signed the search warrant. In addition, Smith argues that the trial court could not rely on any additional information supplied by the police at the hearing but must instead look at the four corners of the affidavit to determine whether probable cause existed to obtain a search warrant.

Smith is correct that a judge is bound by the four corners of the affidavit when determining whether to issue or deny a search warrant. Crayton v. Commonwealth, 846 S.W.2d 684, 689 (Ky.1992); see also Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (totality-of-the-circumstances standard); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971) (court limited to review of affidavit itself). However, we disagree with Smith that the trial court’s denial of his suppression motion was erroneous.

Smith’s motion to suppress the evidence was properly denied, as the trial court’s finding that the information contained in the affidavit was not stale was supported by substantial evidence in light of our accompanying jurisprudence. See Ragland v. Commonwealth, 191 S.W.3d 569, 584 (Ky.2006), when “the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” (internal citations omitted).

Ragland further discusses how a judge must employ a “totality of the circumstances” approach to probable cause. “Under this test, the issuing magistrate need only make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 583 (internal citations omitted).

The information provided in the four corners of the affidavit indicates that the type of criminal activity was of a protracted and continuous nature, thus, based on the nature of the crime, a judge may properly infer that there is a fair probability that evidence of wrongdoing would still be found on the premises given the totality of the circumstances. Accordingly, the trial court correctly found the information provided in the affidavit was not stale.

Turning now to Smith’s claim that Detective Lewis intentionally omitted critical information in his affidavit that would have resulted in the search warrant being denied, we find Guth v. Commonwealth, 29 S.W.3d 809, 810 (Ky.App.2000), to be controlling.

To attack a facially sufficient affidavit, it must be shown that (1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause. The same basic standard also applies when affidavits omit material facts. An affidavit will be vitiated only if the defendant can show that the police omitted facts with the intent to make, or in reckless disregard of whether the omission made, the affidavit misleading and that the affidavit, as supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

We disagree with Smith that if the affidavit had been supplemented by the omitted information that it would then have been insufficient to support a finding of probable cause. First, Smith complains of an omission, not a reckless or false statement. Smith argues that the judge who issued the search warrant would, in reviewing the affidavit assume or infer that, since the two prior trash pulls contained mail or materials that tied the prior trash with the residence, the third trash pull also contained such mail or materials absent a statement in the affidavit to the contrary. Such an assumption or inference would be contrary to Crayton, supra, which limits the magistrate’s review to the four corners of the affidavit.

Second, even if the affidavit had pointedly stated that no information identifying Smith was found in the trash can on the third trash pull, this would not result in a lack of probable cause given an evaluation of the “totality of the circumstances” outlined in the affidavit. The affidavit contained a substantial amount of information from which the magistrate could determine, despite the fact that identifying material was not found in the third trash pull, that there was a fair probability that contraband or evidence of a crime would be found in a particular place.

Smith also failed to show that Detective Lewis prepared the affidavit with a reckless disregard for the truth at the hearing. Thus, we agree with the trial court that the information contained in the affidavit was accurate and not misleading, and, therefore, find that the trial court properly denied Smith’s motion to suppress the evidence.

We now turn to Smith’s second argument that as a matter of public policy Section 10 of the Kentucky Constitution should be held to afford greater protection than the Fourth Amendment of the U.S. Constitution. While Smith is correct that states are permitted to extend greater protection to their citizens than that afforded by the federal constitution, our Supreme Court has held that “Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996) (internal citations omitted).

Given this explicit language in LaFol-lette, this Court must disagree with Smith as our function is to review possible errors made by the trial court and, in our review of the record before us, we find that the trial court did not err given our jurisprudence. See Kaplon v. Chase, 690 S.W.2d 761, 768 (Ky.App.1985).

Last, Smith argues that this Court should require an articulable individualized suspicion for a warrantless trash pull. As previously discussed, Section 10 of our Kentucky Constitution provides no greater protection than the federal Fourth Amendment. In California v. Greenwood, 486 U.S. 85, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30 (1988), the U.S. Supreme Court held that the federal Fourth Amendment does not prohibit the warrant-less search and seizure of trash left for collection outside the curtilage of a home.

Kentucky courts have been consistent with the holding in Greenwood. See Ragland, 191 S.W.3d at 584 (affidavit for search warrant was based partially on evidence found during a trash pull). Our courts have not interpreted the Kentucky Constitution to require an articulable individualized suspicion for a warrantless trash pull and, accordingly, the trial court committed no error by denying Smith’s motion to suppress.

Based on the aforementioned reasons, we find no error by the Fayette Circuit Court and accordingly affirm its denial of Smith’s motion to suppress evidence.

ALL CONCUR.

      . Smith conditionally pleaded guilty to trafficking in a controlled substance, first degree; possession of drug paraphernalia, first offense; and being a persistent felony offender (PFO), first degree.

      . During the execution of the search warrant officers recovered cocaine, marijuana, scales, cell phones, paraphernalia, and $12,085 in cash, and subsequently arrested Smith.

      .The following is a synopsis of the information Detective Lewis stated in his affidavit and testified to at the suppression hearing;
      March 18, 2007: Anonymous complaint of drug trafficking at 2716 Hayden Park Lane.
      March 25, 2007: Anonymous complaint of narcotic sales at 2716 Hayden Park Lane.
      March 26, 2007: Anonymous complainant reported drug activity occurring at 2716 Hayden Park Lane. Complainant gave physical description of subject, named the subject as Byron Smith, and gave a description of Smith’s car.
      April 13, 2007: Anonymous complaint of drug activity at 2716 Hayden Park Lane; caller identified as Smith.
      April 15, 2007: Two anonymous complaints; one of a disorder at 2716 Hayden Park Lane involving Smith and another report of drug activity at 2716 Hayden Park Lane.
      April 18, 2007: First trash pull. Detective Lewis finds suspected marijuana stem and identifying mail in trash can, which was partially in the front lawn and roadway. Mail found in the trash can included a Sprint phone bill, Insight cable bill in name of Nakia Talbert (who was later established to be Smith’s girlfriend), and a pizza box with the address of 2716 Hayden Park Lane.
      June 8, 2007: Anonymous complaint of crack cocaine sell at 2716 Hayden Park Lane involving firearms.
      June 14, 2007: Second trash pull. Detective Lewis finds another suspected stem of marijuana and identifying mail. Mail showing address of 2716 Hayden Park Lane found. Trash can was located in the same place as before.
      August 24, 2007: Smith's vehicle seen outside of 2716 Hayden Park Lane by Detective Lewis.
      September 5, 2007: Third trash pull. Detective Lewis found items containing cocaine residue and baggies, a piece of newspaper, and a piece of kilo wrapping paper. No identifying mail found. Trash can located in the same place as prior trash pulls.

      . A "trash pull” occurs when the police perform a search of one’s trash can left for collection.

      . On appeal Smith argues that the affidavit fails to state whether the suspected marijuana stem tested positive or not and that the affidavit fails to state that the trash can had an identifying address on it. At the hearing Detective Lewis testified that the address associated with the residence was on the back of the trash can.

      . After great contemplation over what to call waste disposed of by humans and the container in which it might be stored, and in light of the parties various references to trash can, garbage, garbage can, trash receptacle and/or garbage receptacle, we have decided to just call it plain old "trash” and, where appropriate, use the term "trash can.”

      . We recognize that in his brief Smith appeals from a "judgment of the Fayette Circuit Court convicting him of ... [and] also appeals ... deni[al] [of] his motion to suppress evidence.” We only address the denial of his motion to suppress, as his conditional guilty plea was based on the denial of his motion to suppress.

      . Moore went on to discuss our appellate review of a search warrant:
      [We] must give great deference to the warrant-issuing judge's findings of probable cause and should not be reversed unless arbitrarily exercised. Courts should review the sufficiency of an affidavit underlying a search warrant in a commonsense, rather than hypertechnical, manner. The traditional standard for reviewing an issuing judge's finding of probable cause has been that so long as the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing, the Fourth Amendment requires no more.
      Whether probable cause exists is determined by examining the totality of the circumstances. Furthermore, the test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.... Probable cause does not require certainty that a crime has been committed or that evidence will be present in the place to be searched.

        Id. at 329 (internal citations omitted).

      . Smith argues that there was a long delay between the anonymous tips as there had been no complaints about Smith or the residence in the three months prior to the last trash pull.

      . Smith characterizes this misleading information as: 1) there was no identifying mail found in the third trash pull and, since the Detective listed the identifying mail found in the previous two trash pulls, this invites the magistrate to assume it was present; 2) the affidavit failed to state that Smith had not been seen for months at his residence; 3) Detective Lewis had not kept Smith’s residence under surveillance and could not state the connection between Smith and the address or even if he was there; and 4) the affidavit failed to state whether the suspected stems tested positive for marijuana.

      .Smith cites this Court to U.S. v. Elliott, 576 F.Supp. 1579 (D.C.Ohio 1984), to support his argument that the small amount of marijuana discovered in his trash can was insufficient to obtain a search warrant as it would not provide probable cause that there was a continuing presence of marijuana in the home. We do not find Elliott to be persuasive as the facts are easily distinguishable. Unlike Elliott, the facts of the case sub judice reflect numerous complaints made against Smith and/or his residence. Moreover, Detective Lewis initialed three separate trash pulls prior to obtaining a search warrant.

      . Smith also failed to show that Detective Lewis prepared the affidavit with a reckless disregard for the truth at the hearing. Thus, we agree with the trial court that the information contained in the affidavit was accurate.

      . Likewise, reporting whether or not the suspected stem tested positive for marijuana is immaterial given the presence of cocaine residue found on items in Smith’s trash can.

      . See Commonwealth v. Wasson, 842 S.W.2d 487(Ky.1992), in which the Court discussed the protection of individual rights by the Kentucky Constitution as compared to its federal counterpart. However, Wasson did not address Section 10 of the Kentucky Constitution; given the explicit language in LaFollette v. Commonwealth, 915 S.W.2d 747 (Ky.1996), we must disagree with Smith's argument that today's concern over the proper disposal of one’s trash given this age of identity theft merits our public policy to grant a greater right of protection from police intrusion into our trash cans.

      . See also Supreme Court Rule (SCR) 1.030(8)(a) "[t]he Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.”


author: KELLER, Judge.

text:
    Edward Joseph MITCHELL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Edward Jefferson Mitchell, Sr., Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2007-CA-002241-MR, 2007-CA-002260-MR.
    Court of Appeals of Kentucky.
    March 5, 2010.
    Discretionary Review Denied by Supreme Court Nov. 10, 2010.

      David S. Mejia (argued for Edward Joseph Mitchell, Sr.), Louisville, KY, on brief for appellants.
    Darren C. Wolff, Louisville, KY, argued for Edward Joseph Mitchell, Jr.

      Jack Conway, Attorney General, Christian K.R. Miller (argued), Assistant Attorney General, Frankfort, KY, for appellee.
    Before ACREE, KELLER, and LAMBERT, Judges.
   OPINION

KELLER, Judge.

Edward Jefferson Mitchell and Edward Joseph Mitchell (the Appellants) appeal from an Opinion and Order of the Jefferson Circuit Court denying their motions for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, following an evidentiary hearing. For the reasons stated below, we reverse and remand.

FACTS

The Appellants were arrested and charged with one count of robbery in the first degree and one count of assault in the first degree in Indictment No. 04-CR-0457. After being arrested, Son confessed to committing the crimes and indicated that he committed the offenses at the urging and planning of Father. Specifically, Son made the following statements to the police.

On December 19, 2008, Son agreed, at Father’s urging, to go inside Collett Auto Sales and rob Robert Collett (Collett). On that same day, Father gave Son a BB gun that he cut off in order to make it look like a small rifle. Father also bought a mask and sunglasses so that Collett would not recognize Son. Prior to entering Collett Auto Sales, Son waited one or two streets away until Father called him to tell him it was time to go into Collett Auto Sales. When Son went inside, he asked Collett for his money. Instead of giving Son the money, Collett pulled out a gun, which Son immediately knocked out of Collett’s hands. Collett then began to choke Son and knocked Son to the floor. While on the ground, Son grabbed something off the floor and hit Collett in the head. Son then took Collett’s wallet, ring, necklace, watch, and gun and ran back to Father’s car. Thereafter, Father took Son to his grandmother’s house and told Son to take off his clothes and get in the shower. Father then took Son’s clothes, which was the last time Son saw the clothes he was wearing that day. Additionally, Father took Col-lett’s ring and wallet and left Son with the gun, watch, and necklace.

Although Son made the above-mentioned confession to the police, Father at all times denied that he was involved. Rob Guarnieri (Guarnieri) was appointed to represent Father, while Carolyn McMe-ans (McMeans) was appointed to represent Son. Both attorneys were employed by the Jefferson County Public Defender’s Office. At the January 16, 2004, probable cause hearing held in Jefferson District Court, Guarnieri and McMeans filed a waiver of dual representation form on behalf of each of the Appellants. At the Appellants’ arraignment on February 16, 2004, in Jefferson Circuit Court, Guarnieri and McMeans again filed a waiver of dual representation form on behalf of each of the Appellants.

Subsequently, Son filed a motion to suppress the statement he made to the investigating police officers on the ground that it had been coerced. The trial court held a suppression hearing on December 17, 2004, and entered an order denying son’s motion. On January 27, 2005, Son filed a motion for a separate trial. Because Son ultimately pled guilty, it appears from the record that the trial court never ruled on Son’s motion for a separate trial.

On February 15, 2005, Son entered a guilty plea to one count of robbery in the second degree and one count of assault in the second degree pursuant to a negotiated, -written plea agreement. A condition of the guilty plea agreement required Son to testify, consistent with his post-arrest statement, against Father. Son was sentenced to ten-years’ imprisonment on each count, with the terms to be served consecutively. Thereafter, Father entered a plea of guilty on April 14, 2005, to one count of robbery in the second degree and to one count of assault in the second degree. Father was sentenced to six-years’ imprisonment on each count, with the sentences to run concurrently but to be served consecutively with a previous five-year sentence.

On February 7, 2007, through retained and separate counsel, the Appellants filed RCr 11.42 motions alleging that they received ineffective assistance of counsel because they were both represented by attorneys from the Jefferson County Public Defender’s Office. An evidentiary hearing on the Appellants’ motions was held on September 10, 2007.

Both Appellants testified in support of their motions at the evidentiary hearing. Both Father and Son verified their signatures on the waiver of dual representation forms. However, Father stated that he did not have any conversations or discussion with his attorney regarding the implications of the waivers. He stated that it was his understanding that he simply needed to sign them in order to have representation through the Jefferson County Public Defender’s Office. He stated that he was unaware of any potential conflict and did not know that he could have another attorney. Son stated that he did not recall signing the forms. Additionally, Son stated that he did not have a discussion with McMeans regarding his right to have counsel outside of the Jefferson County Public Defender’s Office.

On October 3, 2007, the trial court entered an Opinion and Order denying the Appellants’ motions. This appeal followed.

STANDARD OF REVIEW

Because the Appellants’ claims of ineffective assistance of counsel are based upon a conflict of interest, a different standard is used than the general standard applicable to a typical ineffectiveness claim. The United States Supreme Court set forth the standard for reviewing conflict of interest cases in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and summarized it again in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as follows:

In Cuyler ... the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.

(Emphasis added). Thus, we must determine whether trial counsel actually represented conflicting interests, and if so, whether the conflict adversely affected trial counsel’s performance.

However, when a movant has pled guilty, this test is slightly modified. “[I]n order to successfully assert a claim of ineffective counsel based on a conflict of interest, a defendant who entered a guilty plea must establish: (1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant.” Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.1987) (citation and footnote omitted).

ANALYSIS

The Appellants contend that they received ineffective assistance of counsel because they were both represented by attorneys from the Jefferson County Public Defender’s Office, which resulted in a conflict of interest. The Appellants further argue that because they were never advised by the trial judge of their right to conflict-free counsel as required by RCr 8.30, they did not waive that right.

At the outset, we note that the Commonwealth asserts that the Appellants failed to produce a complete record and that such failure precludes appellate review. As correctly noted by the Commonwealth, it is the Appellants’ responsibility to present a complete record for review. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky.2007). The general rule is that “when the record is incomplete, this Court must assume that the omitted record supports the trial court.” Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky.2008).

After receiving the original record on appeal, the Commonwealth discovered that the record was incomplete, the pages were out of order, and the video record transmitted did not contain the proceedings as designated or as certified. Thus, on February 25, 2009, the Commonwealth filed a Motion to Correct the Record. This Court subsequently entered an order on March 23, 2009, ordering the Jefferson Circuit Court Clerk, with the assistance of the Appellants, to accurately certify and transmit the record as designated. On July 13, 2009, the Jefferson Circuit Clerk filed a Re-Certification of Record on Appeal. The Commonwealth contends that the record is still incomplete because the video record only contains the September 10, 2007, evidentiary hearing and does not include the guilty pleas, arraignments, or any pretrial hearings. The Commonwealth asserts that because the record is incomplete, there is no way of determining whether the trial judge advised the Appellants of their right to conflict-free counsel in compliance with RCr 8.30.

However, our review of the record reveals that at the September 10, 2007, evi-dentiary hearing, the Commonwealth conceded that the trial judge did not conduct a colloquy with the Appellants regarding their waiver of dual representation similar to a plea of guilty pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Instead, the Commonwealth agreed that the only inquiry that took place was the following discussion between defense counsel and the trial court at the December 17, 2004, suppression hearing:

The Court: Okay, do we have a trial date?
McMeans: Yes we do, February 15.
The Court: Okay do we have waivers of dual representation? I was trying to look through—
McMeans: Yes we do. I know we’ve done them at least once um
The Court: Once is all we need. Mr. Guarnieri, do you remember?
Guarnieri: Judge to be honest with you I thought we may have but if not I’ll file one with the court.
McMeans: We could’ve done them in district court — I believe.
Guarnieri: That’s right.
McMeans: We filled them out in the district court and they may still be in the district court file.
Guarnieri: I’ll file one in circuit court as well just to make sure that’s not a problem. I have advised Mr. Mitchell ... of a potential conflict and at this time he agreed with me to execute a waiver and is satisfied going forward with the Public Defender’s Office whereby a potential conflict may exist. And at this time, if we haven’t filed one I will submit one in the next several days.
McMeans: And Edward Joseph Mitchell is in the same position. We’ve discussed at length and I do recall we signed one and went through it. It may be in the circuit court 13 file too.
The Court: Okay. Let’s just make sure this record contains two waivers.

Because the Commonwealth conceded that this was the only inquiry the trial judge made, we conclude the record contains all the information needed to determine whether the trial judge advised the Appellants of their right to conflict-free counsel in compliance with RCr 8.30. Therefore, we will address the issues raised by the Appellants.

The Appellants argue that they received ineffective assistance of counsel because their attorneys were both employed by the Jefferson County Public Defender’s Office. As a result, Appellants contend that their counsel was laboring under a conflict of interest which resulted in deficient representation. RCr 8.30 directly addresses the issue of an attorney’s representation of multiple co-defendants. Further, the requirements of RCr 8.30 are implicated in cases where co-defendants are represented by attorneys from the same public defender’s office. Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky.2001).

RCr 8.30 prohibits dual representation of persons charged with the same offense unless:

(a) the judge of the court in which the proceeding is being held explains to the defendant or defendants the possibility of a conflict of interests on the part of the attorney in that what may be or seem to be in the best interests of one client may not be in the best interests of another, and
(b) each defendant in the proceeding executes and causes to be entered in the record a statement that the possibility of a conflict of interests on the part of the attorney has been explained to the defendant by the court and that the defendant nevertheless desires to be represented by the same attorney.

In addition to the duties imposed upon the trial court, RCr 8.30(3) also imposes the following duties on counsel:

Upon receipt of any information reasonably suggesting that what is best for one client may not be best for another, counsel shall explain its significance to the defendant and disclose it to the court, and shall withdraw as counsel for one client or the other unless
(a) each such client who is a defendant in the proceeding executes a written waiver setting forth the circumstances and reiterating the client’s desire for continued representation by the same counsel and
(b) such waiver is entered in the record of the proceeding.

As with the waiver of other constitutional rights, the waiver of the right to conflict-free counsel should appear on the record as the “intentional relinquishment or abandonment of a known right.” United States v. Osborne, 402 F.3d 626, 630 (6th Cir.2005) (internal quotations omitted). As noted by the Supreme Court of Kentucky in Brewer v. Commonwealth, 206 S.W.3d 313, 322 (Ky.2006), “an accused ‘must’ be able to waive the problem of dual representation so long as the waiver is done ‘knowingly.’ ” (quoting Brock v. Commonwealth, 627 S.W.2d 42, 44 (Ky.App.1981)). However, the trial courts “should all but insist on separate counsel, especially where counsel is appointed.” Id.

As discussed above, the only inquiry made by the trial court in this case with respect to the Appellants’ right to conflict-free counsel was the discussion between defense counsel and the trial court at the December 17, 2004, suppression hearing transcribed above. Although it appears that the trial court was aware of the potential conflict, it is clear from the record that the trial court did not comply with its obligation to inform the Appellants of the potential consequences of dual representation as required by RCr 8.30(l)(a).

Moreover, it appears that RCr 8.30(l)(b) was also not complied with in this case. As noted by the Supreme Court of Kentucky in Brewer, 8.30(l)(b) requires the defendant to execute a waiver “indicating that the possibility and problems of conflicts of interest have been explained to him by the court and that he nevertheless desires to be represented by the same attorney.” 206 S.W.3d at 322 (quoting Brock, 627 S.W.2d at 44)(emphasis added). The trial court record contains the following “Waiver of Dual or Multiple Representation” executed by the Appellants:

The undersigned, Edward Jefferson Mitchell, a defendant before this Court charged with the offense(s) of Robbery I and Assault I, acknowledges that the undersigned attorney has explained and that he/she understands the possibility of a conflict of interests on the part of the assigned attorney, Rob Guarnieri, that what may be or seem to be in the best interests of this defendant may not be to the best interest of a codefendant, who is also represented by a Louisville Metro Public Defender. With that understanding, the undersigned nonetheless desires that Rob Guarnieri represent him/her in this proceeding and has no objection to another Louisville Metro Public Defender acting as counsel for the other person mentioned in this waiver as being involved as a possible conflict of interest.

Nowhere in the waiver does language exist indicating that the trial court explained to the Appellants the potential ramifications of conflicts of interest. Thus, the waiver signed by the Appellants also did not comply with RCr 8.30.

We conclude that trial counsel did err by undertaking dual representation without compliance with RCr 8.30. Under RCr 8.30, the Appellants should have been advised by the trial court of the potential consequences of the trial counsel’s dual representation, and it was incumbent upon trial counsel to assure that the trial court complied with the rule.

However, even where, as here, RCr 8.30 is not complied with, the defendant is not automatically entitled to post-conviction relief. As noted in Kirkland, failure to comply with the requirements of RCr 8.30(1) is “not presumptively prejudicial and does not warrant automatic reversal.” 53 S.W.3d at 75. “A defendant must show a real conflict of interest....” Id. See also Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (a defendant must show an actual conflict of interest adversely affected the performance of his lawyer). An alleged violation of RCr 8.30 simply opens the door for a case-by-case evaluation to determine whether a defendant was in fact prejudiced by such a violation. Id.

In support of their claim of an alleged conflict and a consequent prejudice, the Appellants contend that there was an actual conflict because Son gave a post-arrest confession implicating Father. Moreover, Son entered a guilty plea pursuant to a negotiated, written plea agreement in which he agreed to testify against Father. At all times prior to entering his guilty plea, Father maintained that he was innocent of the crime. Father now contends that he only pled guilty because Son had agreed to testify against him.

The Appellants rely on Commonwealth v. Holder, 705 S.W.2d 907 (Ky.1986), in support of their argument that there was an actual conflict and that they were prejudiced by such a conflict. In Holder, three criminal co-defendants were represented by one attorney. One of the co-defendants, Holder, made an out-of-court statement admitting his guilt and implicating the other two defendants, who maintained their innocence. In concluding that there is a “built-in conflict of interest” in such a situation, the Supreme Court of Kentucky noted that:

Separate counsel would likely have explored the potential for a plea bargain for Holder based upon his plea of guilty and his agreement to testify against the other two respondents, whereas counsel in a joint representation of all three respondents could not ethically seek advantage for one at the expense of the other two.

Id. at 908. Therefore, the Supreme Court held that:

When, as here, the trial court failed to comply with the simple requirements of RCr 8.30 and when, as here, the record demonstrates a conflict of interest between the respondents which could well have prejudiced the disposition of their cases, the judgment of conviction must be set aside.

Id. at 909. Thus, the Supreme Court affirmed this Court’s decision to set aside the convictions of all three defendants. Id.

We find Holder to be factually similar to the instant case. As in Holder, an actual conflict of interest arose when Son gave his post-arrest statement implicating Father and Father maintained his complete innocence. As a result of such conflict, what happened in this case is the exact scenario the Supreme Court warned against in Holder. Here, Son’s plea bargain involved his agreement to testify against Father. As noted in Holder, when negotiating a plea agreement, counsel in a joint representation of more than one defendant cannot “ethically seek advantage for one at the expense of the other....” 705 S.W.2d at 908. Thus, counsel in the instant case could not negotiate a plea bargain for Son based upon his agreement to testify against Father. Therefore, based on Holder, there was an actual conflict of interest which prejudiced the disposition of the Appellants’ cases.

The Commonwealth cites Kirkland, 53 S.W.3d 71, in support of its position that there was not a conflict. In Kirkland, two co-defendants, Kirkland and McKee, were convicted of murder and robbery in the first degree for robbing and killing the owner of a liquor store. Id. at 73. During their joint trial, Kirkland testified that he shot the liquor store owner, claiming that McKee had only accompanied him to the store. Id.

On appeal, McKee argued that the trial judge committed reversible error when she did not instruct him pursuant to RCr 8.30(1) about a possible conflict of interest because his counsel and Kirkland’s counsel were both employed by the Fayette County Legal Aid, Inc. Id. at 74. In concluding that there was not a conflict of interest, the Supreme Court noted that Kirkland admitted he was the shooter and Kirkland’s testimony regarding McKee’s involvement consisted of nothing more than what McKee had already told his girlfriend and confessed to the police, i.e., that he accompanied Kirkland to the liquor store. Id. at 75. Because Kirkland never contended that McKee was the one who shot the victim, no antagonistic defenses were comprised. Id. Thus, the Supreme Court concluded that the trial judge’s failure to comply with RCr 8.30(1) was harmless error. Id.

Unlike in Kirkland, there was an actual conflict in this case. While the co-defendants in Kirkland made consistent statements, the statements made by the Appellants in this case were inconsistent. Specifically, Son confessed that he committed the robbery and assault but that he did it at the direction and planning of Father. However, Father maintained that he was innocent and that he was not involved. Because the Appellants made conflicting statements resulting in an actual conflict, we find Kirkland to be unpersuasive.

Accordingly, we reverse the order denying the Appellants’ RCr 11.42 motions and remand this case to the Jefferson Circuit Court for a new trial with directions that new counsel be appointed.

ALL CONCUR.

      . Due to the similarity in the Appellants' names, we will refer to Edward Jefferson Mitchell as "Father” and Edward Joseph Mitchell as "Son”.

      . The Opinion and Order entered by the trial court on October 3, 2007, not only references the Appellants’ 04-CR-0457 convictions but also the Appellants' 03-CR-3119 convictions. However, neither the Appellants nor the Commonwealth address the 03-CR-3119 convictions in the arguments contained in their briefs. Having reviewed the record, including the Appellants' notices of appeal, we find no evidence that the 03-CR-3119 convictions are being contested at this time. Accordingly, we conclude that the Appellants are precluded from appealing issues not addressed in their brief to this Court. Therefore, we will address only the portion of the trial court’s Opinion and Order pertaining to the Appellants’ 04-CR-0457 convictions.

      . During oral arguments to this Court, there was an issue raised as to whether the record on appeal included the January 16, 2004, probable cause hearing held in the Jefferson District Court. The record did include an audio tape of the probable cause hearing, and a review of that hearing reflects that the trial judge did not advise the Appellants of their right to conflict-free counsel.

      . The same language is provided in the waiver signed by Edward Joseph Mitchell, except "Edward Joseph Mitchell" appears in all places where "Edward Jefferson Mitchell” is provided and "Carolyn McMeans” appears in all places where “Rob Guarnieri” is provided.