RENDERED: APRIL 26, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0609-MR

DERICK BARNETT APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 20-CR-001063

COMMONWEALTH OF KENTUCKY APPELLEE 

AND

NO. 2022-CA-0886-MR

DERICK BARNETT APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 20-CR-001063

COMMONWEALTH OF KENTUCKY APPELLEE 
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OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

**   **  **

BEFORE: GOODWINE, KAREM, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Appellant, Derick J. Barnett (Barnett), was convicted of 

flagrant nonsupport for failing to pay child support arrearages. He was sentenced 

to serve two years and six months’ imprisonment, probated for five years. Barnett

was subsequently ordered to pay $106,025.62 in restitution, which constituted his 

total delinquent balance at the time. Two separate appeals were filed, one from the 

criminal conviction, and one from the restitution order. These cases have been 

consolidated and both matters are addressed herein. Barnett raises the following 

four arguments: 1) the trial court erred in denying his motion for a directed 

verdict; 2) the jury verdict was not unanimous; 3) his due process rights were 

violated as a result of the Commonwealth’s unreasonable and prejudicial preindictment delay; and 4) the court abused its discretion by ordering restitution. For 

the following reasons, we affirm in part, vacate in part, and remand.

We will reverse the trial court’s denial of a motion for directed verdict 

“if under the evidence as a whole, it would be clearly unreasonable for a jury to 

find guilt[.]” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)

(citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)) (emphasis added). 
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When ruling on a directed verdict motion, the trial court must assume that the 

Commonwealth’s evidence is true. Id. Our review is confined to the proof at trial 

and the statutory elements of the alleged offense. See Lawton v. Commonwealth,

354 S.W.3d 565, 575 (Ky. 2011). Pursuant to the most current version of KRS1

530.050(2), for a jury to find a defendant guilty of flagrant nonsupport, the 

Commonwealth must prove beyond a reasonable doubt that the defendant:

persistently fails to provide support which he or she can 

reasonably provide and which the person knows he or

she has a duty to provide by virtue of a court or 

administrative order to a minor, a child adjudged 

mentally disabled, an indigent spouse, or indigent parent, 

and the failure results in:

(a) An arrearage of not less than two thousand five 

hundred dollars ($2,500); or

(b) Six (6) consecutive months without payment of 

support[.]

(Emphasis added.) In its Appellee brief, the Commonwealth summarizes the 

Barnett’s charges:

[R]ecords introduced by the Commonwealth reflected 

that in 2017, Barnett missed eight months’ payments. In 

2018, Barnett failed to make payments for 11 consecutive 

months. In 2019, Barnett failed to make payments for 10 

consecutive months, missing a total of 11 months’

payments. Further, Barnett failed to make payments in 

either January or February of 2020. As a result of his 

failure, Barnett’s total arrearage, as of February 2020, 

was $70,472.47. 

1 Kentucky Revised Statutes.
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(Internal record citations omitted.) Multiple witnesses testified at trial, including 

the child’s mother, Betty Coleman, and Jim Oxyer, an employee of the Jefferson 

County Child Support Office. The Commonwealth introduced Barnett’s original 

child support order, the child support worksheet, and an audit of his support 

payments and arrearages.2 

Barnett also testified. He stated that he had been incarcerated from 

approximately 2005 through 2012, and that he was previously arrested five times 

for flagrant nonsupport. All three witnesses testified concerning Barnett’s previous 

employment. Barnett testified that he worked incrementally in construction 

between 2017 and 2020. No evidence was presented indicating that Barnett could 

not work as a result of injury or illness. Rather, there was sufficient evidence 

presented indicating that Barnett had the capacity to earn an income and, thus, he 

could have “reasonably provided” the delinquent child support payments. 

Furthermore, even when omitting consideration of the years he was incarcerated, 

the evidence presented satisfies also KRS 530.050(2)(a) and (b) – even though 

only one is required. There was no error in denying Barnett’s motion for a directed 

verdict. 

2

 The child, D.K.B., is emancipated. 
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Barnett next argues that the jury instruction was not unanimous, and 

therefore reversal of his conviction is required. As summarized most recently in 

Johnson v. Commonwealth:

the Supreme Court of the United States made the Sixth 

Amendment’s guarantee of a unanimous jury applicable 

to the states via the Fourteenth Amendment. That 

changed little in the way of Kentucky law since our own 

constitution also guarantees unanimous jury verdicts. 

Ky. Const. § 7.

676 S.W.3d 405, 411 (Ky. 2023), reh’g denied (Sep. 28, 2023). In the present 

case, the period in the indictment was September 27, 2004, through February 25, 

2020. Barnett’s more precise argument here is that the jury instruction was 

“duplicitous because numerous instances of the crime of nonsupport were 

presented, yet the jury was only instructed on a single crime.” He requests 

palpable error review pursuant to RCr3 10.26. “An error is palpable, we have 

explained, only if it is clear or plain under current law . . . .” Commonwealth v.

Jones, 283 S.W.3d 665, 668 (Ky. 2009) (internal quotation marks and citation 

omitted). And in Sexton v. Commonwealth, the Kentucky Supreme Court indicated 

that “reversal is not the universal, essential result of a unanimous verdict error.” 

647 S.W.3d 227, 232 (Ky. 2022). More recently, the Court overruled several of its 

previous unanimity cases and held that “[o]nly if, upon review, a court can 

3

 Kentucky Rules of Criminal Procedure. 
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conclude the error is so manifest, fundamental and unambiguous that it threatens 

the integrity of the judicial process, will reversal be warranted. It should be so 

egregious that it jumps off the page . . . and cries out for relief.” Johnson, 676 

S.W.3d at 417 (internal quotation marks and citations omitted). In the absence of 

controlling authority to the contrary, we cannot conclude that the standard in 

Johnson has been satisfied here. There was no palpable error. 

For his next unpreserved argument, Barnett contends that his due 

process rights were violated as a result of the Commonwealth’s unreasonable and 

prejudicial pre-indictment delay. Barnett essentially argues that he was denied due 

process because he was not previously tried as a result of his multi-decade 

delinquency, although he had previously been arrested. Any prior indictments 

appear to have been dismissed. In any event, “unjustified and prejudicial 

preindictment delay may constitute a violation of due process and require 

dismissal.” Kirk v. Commonwealth, 6 S.W.3d 823, 826 (Ky. 1999). However, 

“dismissal is required only where there is both substantial prejudice and an 

intentional delay to gain tactical advantage.” Id. (emphasis added). Barnett has 

not sufficiently demonstrated either element. There is certainly no palpable error 

here. 
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Lastly, Barnett argues that the court abused its discretion by ordering 

restitution. Restitution is governed by KRS 532.032(1), which provides as 

follows:

Restitution to a named victim, if there is a named victim, 

shall be ordered in a manner consistent, insofar as 

possible, with the provisions of this section and KRS 

439.563, 532.033, 533.020, and 533.030 in addition to 

any other part of the penalty for any offense under this 

chapter. The provisions of this section shall not be

subject to suspension or nonimposition. 

We review a trial court’s findings regarding restitution for an abuse of discretion. 

Bentley v. Commonwealth, 497 S.W.3d 253, 255 (Ky. App. 2016). The test for 

abuse of discretion is “whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

Barnett’s primary contention is that the victim, Betty Coleman, had 

already been paid monthly benefits through a social support system called 

Temporary Assistance for Needy Families (TANF). A similar system referenced 

during the underlying restitution hearing was the Kentucky Transitional Assistance 

Program (K-TAP). The child support audit reflects these payments. Pursuant to 

these programs, the Commonwealth would pay Ms. Coleman during periods in 

which Barnett was delinquent in his support obligations. Barnett therefore 

contends that she had no recognizable financial loss necessary to be entitled to 
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restitution. Otherwise, he asserts that Ms. Coleman would receive the benefit of 

double recovery. In contrast, we are persuaded by the Commonwealth’s assertion

that:

there is no double-recovery to Coleman because Oxyer 

testified that the child support office was a “flow-through 

system” and that the Commonwealth would recoup from 

Barnett the TANF benefit it advanced to Coleman. 

Kentucky’s administrative regulatory scheme is clear that 

there is no double recovery from a K-TAP benefit. See 

921 KAR 1:420. There is no basis for Barnett’s claim 

that Coleman would receive a double recovery.

Furthermore, the cases cited by Barnett are distinguishable. Compare Vaughn v.

Commonwealth, 371 S.W.3d 784, 786 (Ky. App. 2012) (holding that trial court 

lacked authority to order defendants to pay restitution to reimburse the 

Commonwealth for extradition costs) with Gamble v. Commonwealth, 293 S.W.3d

406, 410 (Ky. App. 2009) (concluding that money owed for past due child support 

constitutes “restitution” within the meaning of KRS 532.350(1)). 

 And although we agree with the Commonwealth as to the merits of 

this issue, we also acknowledge that the restitution order at issue here omits a 

payee. Therefore, we vacate the restitution order and remand this case for a new 

order indicating to whom the support payments are to be paid. See Compise v.

Commonwealth, 597 S.W.3d 175, 182 (Ky. App. 2020) (“If an order of restitution 

fails to set forth the provisions required by KRS 532.033, it is appropriate . . . to 

vacate and remand such an order with instructions for the court to enter a proper 
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order.”). To be clear, the order shall expressly indicate any money designated to 

be paid to the Commonwealth pursuant to the applicable statutory, regulatory, or 

other legal dictates. See KRS 532.033. Similarly, any funds ordered to be paid 

directly to Ms. Coleman shall also be denominated. 

And since we are remanding, the court may consider whether the 

$106,025.62 sum exceeds the $100,000.00 cap enumerated in KRS 533.030(3). 

See Jones v. Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011) (“Appellant’s 

argument that the imposition of restitution in excess of the $100,000.00 

violated KRS 533.030(3) is a true ‘sentencing issue’ and we review it despite the 

lack of preservation.”). Any of Barnett’s remaining arguments on the issue of 

restitution are either insufficiently preserved or otherwise unpersuasive.

For the following reasons, we hereby AFFIRM Barnett’s conviction. 

We VACATE the restitution order and REMAND for the entry of a new order in 

accordance with this decision. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Michael C. Lemke

Louisville, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Christina L. Romano

Assistant Attorney General

Frankfort, Kentucky