TO BE PUBLISHED

2018-SC-000095-DG

COMMONWEALTH OF KENTUCKY APPELLANT

V. ON REVIEW FROM COURT OF APPEALS

CASE NO. 2016-CA-001 154

CAMPBELL CIRCUIT COURT NOS. 13-M-02864 & 14-XX-00004

JOHN P. ROTH JR. APPELLEES

OPINION AND ORDER

“ It is a dangerous precedent to permit appellate advocates to ignore

procedural rules. Procedural rules ‘ do not exist for the mere sake of form and

style. They are lights and buoys to mark the channels of safe passage and

assure an expeditious voyage to the right destination. Their importance simply

cannot be disdained or denigrated. ” ’ 1 “ Enforcement of procedural rules is a

judicial responsibility of the highest order because without such rules

‘ [sjubstantive rights, even of constitutional magnitude

. . . would smother in

chaos and could not survive. ’ ” 2

An Appellant ’ s brief must have a “ Statement of the Case ” section reciting

the facts of the case “ with ample references to the specific pages of the record,

1 Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Louisville Jefferson

Cty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)) (quoting Brown v.

Commonwealth, 551 S.W.2d 557, 559 (Ky. 1997)).

2 Id.or tape and digital counter number in the case of untranscribed videotape or

audiotape recordings, or date and time in the case of all other untranscribed

electronic recordings, supporting each of the statements narrated in the

summary. ” 3 An Appellant ’ s brief must also have an “ Argument ” section “ with

ample supportive references to the record[.] ” 4

The Commonwealth ’ s brief in this case plainly failed to comply with these

requirements. Under CR 76.12(8)(a), we exercise our discretion to strike the

Commonwealth ’ s brief, 5 which necessarily requires that we also dismiss the

Commonwealth ’ s appeal.

I. BACKGROUND.

The Commonwealth charged John Roth Jr. with second-degree cruelty to

animals, a Class A misdemeanor. 6 A district court jury found him guilty of that

crime and recommended a sentence of six months in the county jail and a

$500 fine. The trial court entered judgment accordingly. Roth then appealed

the judgment to the circuit court as a matter of right. 7 The circuit court

affirmed the judgment on all issues raised.

Roth then sought discretionary review in the Court of Appeals. As Roth

points out, the Commonwealth received a deficiency notice from the Court of

3 Kentucky Rules of Civil Procedure ( “ CR ” ) 76.12(4)(c)(iv).

4 CR 76.12(4)(c)(v).

5 “ A brief may be stricken for failure to comply with any substantial requirement of

this Rule 76.12. ”

6 Kentucky Revised Statutes ( “ KRS ” ) 525.130(4).

7 Ky. Const. § 115 ( “ In all cases

. . . there shall be allowed as a matter of right at least

one appeal to another court[.] ” ).

2Appeals for identifying the wrong court in its title. After the Commonwealth

fixed that error, the Court of Appeals considered Roth ’ s case, concluding that

the trial court erred when it failed to grant Roth ’ s motion for directed verdict on

his second-degree animal cruelty charge. The Court of Appeals found that the

evidence adduced at trial did not support the jury ’ s verdict as to the

satisfaction of the mens rea component of the crime.

The Commonwealth ’ s subsequent Petition for Rehearing to the Court of

Appeals contained two deficiencies. First, the Commonwealth styled its Petition

for Rehearing as a Motion to Reconsider. Second, the Commonwealth failed to

cover its Petition with the requisite cover and failed to attach the Court of

Appeals ’ opinion to the Petition. After the Commonwealth corrected the

deficiencies, the Court of Appeals denied the Commonwealth ’ s Petition.

The Commonwealth then requested discretionary review from this Court.

The Commonwealth ’ s motion was deficient because it failed to provide the

Court with the correct number of copies of the judgment and opinions of the

appellate courts below. After correction, we granted discretionary review, and

the parties filed briefs.

II. ANALYSIS.

The Commonwealth ’ s brief before this Court contains no citations to the

record. In support of some of its factual assertions, the Commonwealth cites

only to the two lower-court opinions. This lack of citation to the record

prompted Roth to move this Court to strike the Commonwealth ’ s brief and

dismiss its appeal. Roth ’ s request is well-taken, and for the reasons stated

3below we order the Commonwealth ’ s brief stricken from the record and dismiss

its appeal.

CR 76.12(4)(c)(iv) and (v) require “ ample ” citations “ to the record ” to

support a party ’ s factual assertions. Here, the Commonwealth did not make a

single citation to the record in support of its factual assertions. The

Commonwealth ’ s brief only cites to the Court of Appeals ’ and circuit court ’ s

decisions in support of some of its factual assertions. While it is true that the

decisions of the appellate courts below are a part of this record, citation to

them alone cannot suffice as “ ample ” reference to the trial record. This is

especially true where, as here, the central issue calls into question the

adequacy of the evidence introduced by the Commonwealth at trial to support

submission of the case to the jury.

“ It is fundamental that it is an Appellant ’ s duty and obligation to provide

citations to the record regarding the location of the evidence and testimony

upon which he relies to support his position, ” and if an appellant fails to do so,

“ we will accordingly not address it on the merits. ” 8

A lower-court ’ s discussion of the facts cannot satisfy our obligation to

read or view the trial proceeding, especially where, as here, the sole issue to be

resolved on appeal is the sufficiency of the evidence presented to the jury at

trial. It would be an abdication of our constitutional duty as a reviewing court

were we to accept on faith the factual assertions as summarized in the

decisions of the reviewing courts below. Our rules requiring pinpoint citation to

8 Hackett v. Commonwealth, No. 2012-SC-000773-MR, 2014 WL 2809876, *10 (Ky.

June 19, 2014) (emphasis added).

4the record ensure that we base our decisions upon our own review of the

record to establish the basis for factual assertions.

“ A brief may be stricken for failure to comply with any substantial

requirement of this Rule 76.12. ” 9 Supporting factual assertions with pinpoint

citations may, in fact, be the most substantial requirement of CR 76.12. 10

Without pinpoint citations to the record, a court “ must sift through a record to

[find] the basis for a claim for relief. ” 11 Expeditious relief would cease to exist

without this requirement. “ It is well-settled that an appellate court will not sift

through a voluminous record to try to ascertain facts when a party has failed to

comply with its obligation under [our rules of procedure]

... to provide specific

references to the record. ” 12

The Commonwealth has failed to provide any support for its factual

assertions in both its Statement of the Case and Argument sections of its brief.

As such, it has failed to meet the substantial requirement of pinpoint citations

to the record specified in CR 76.12, and we are within out discretion to strike

its brief. 13

9 CR 76.12(8)(a); see also Slone v. Commonwealth, No. 2013-SC-000446-MR, 2014 WL

5410289, *3 (Ky. Oct. 23, 2014) ( “ When an appellate advocate fails to abide by [CR

76.12(4)(c)(v)] our options are: (1) to ignore the deficiency and proceed with the review;

(2) to strike the brief or its offending portions; or (3) to review the issues raised in the

brief for manifest injustice only. ” ) (citing Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.

App. 2010))..

10 See Jackson v. Commonwealth, No. 2015-SC-000445-MR, 2016 WL 7665877, *6

(Ky. Dec. 15, 2016) (acknowledging CR 76. 12(4)(c)(v) as a substantial requirement).

11 Mayo v. Commonwealth, 322 S.W.3d 41, 54 (Ky. 2010).

12 Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009).

13 CR 76. 12(8){a); see Sanderson v. Commonwealth, 291 S.W.3d 610, 612 (Ky. 2009)

(acknowledging Court ’ s discretion to strike a brief for a violation of CR 76.12); see also

Hudson v. Hudson, No. 201 1-SC-000091-DG, 2011 WL 3805980, *2 (Ky. Aug. 25,

5We are also within our discretion to dismiss the Commonwealth ’ s

appeal. 14 The Commonwealth could have corrected any deficiencies raised by

Roth in a reply brief, but the Commonwealth failed to file a reply brief. 15 “ Even

though [Roth] pointed out [the Commonwealth ’ s] briefs noncompliance with CR

76.12, [the Commonwealth] did not file a reply brief to correct [its] oversight.

[Therefore,] [w]e would be justified in disregarding [the Commonwealth ’ s] claim

of error[.] ” 16 Finally, the Commonwealth has shown a repeated pattern in this

case of failing to adhere to basic requirements of appellate practice in

Kentucky.

“ If a party fails to comply with [CR 76.12(4)(c)(v)], we may ‘ decline to

address ’ his arguments. ” 17 Whenever a party fails to provide “ amply supportive

references to the record

. . . [w]e [are] justified in disregarding [that party ’ s]

2011) ( “ [A] failure to comply with CR 76. 12(4)(c)(v)

. . . permits the appellate court to

strike the non compliant brief. ” ).

14 Craig v. Kulka, 380 S.W.3d 546, 547-49 (Ky. App. 2012) (dismissing appeal for

failing to comply with CR 76.12(4)(c)(iv) and (v)); Simmons v. Commonwealth, 232

S.W.3d 531, 533 (Ky. App. 2007) ( “ [D]ismissal for failure to comply with the provisions

of CR 76.12 is discretionary!.] ” ); Baker v. Campbell Cty. Bd. ofEduc., 180 S.W.3d 479,

482 (Ky. App. 2005) (acknowledging dismissal as appropriate upon the failure to

comply with CR 76.12); see Sanderson v. Commonwealth, 291 S.W.3d 610, 612 (Ky.

2009) (citing to Court of Appeals opinions acknowledging Court ’ s discretion to dismiss

appeal for failure to comply with CR 76.12); see also Calloway v. Commonwealth, No.

2012-SC-000334-MR, 2013 WL 5436260, *5 (Ky. Sept. 26, 2013) ( “ [I]t is in this

Court ’ s discretion to decline to review arguments failing to conform to established

Kentucky rules. ” ); Goncalves v. Commonwealth, 404 S.W.3d 180, 188, and 209 (Ky.

2013) (declining to address arguments that failed to comply with CR 76. 12(4)(c)(v)).

15 See Goncalves, 404 S.W.3d at 207 (citing Hollingsworth v. Hollingsworth, 798

S.W.2d 145, 147 (Ky. App. 1990) ( “ A reply brief may be used

... to correct a procedural defect related to CR 76.12 ” )).

16 Mayo v. Commonwealth, 322 S.W.3d 41, 54 (Ky. 2010).

17 Jefferson v. Eggemeyer, 516 S.W.3d 325, 337 (Ky. 2017).

6claim of error).] ” 18 “ Appellants who desire review by this Court must ensure

their briefs comply with our Rules of Civil Procedure. ” 19

“ As long as a good faith effort is made, this Court will consider the

arguments presented to it,-as it often has done on behalf of the Commonwealth

as well as defendants. ” 20 Unfortunately for all concerned with this case, there is

nothing to indicate a good faith effort on the part of the Commonwealth to

comply with the requirements of CR 76. 12(4)(c)(iv) and (v).

III. ORDER.

Because the Commonwealth failed to comply with CR 76. 12(4)(c)(iv) and

(v), we exercise our discretion under CR 76.12(8)(a) and order the

Commonwealth ’ s brief stricken and this appeal dismissed.

Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.

Keller, J., dissents by separate opinion in which Wright, J., joins.

ENTERED: February 14, 2019.

18 Dickerson u. Commonwealth, 485 S.W.3d 310, 320 (Ky. 2016) (quoting Mayo v.

Commonwealth, 322 S.W.3d 41, 54 (Ky. 2010)); see also Holbrook v. Commonwealth,

No. 2012-SC-000703-MR, No. 2012-SC-000804-MR, 2014 WL 4160137, *13 (Ky. Aug.

21, 2014) (completely disregarding argument for failing to comply with CR

76.12(4)(c)(v)).

19 Harris v. Commonwealth, 384 S.W.3d 117, 131 (Ky. 2012) (disregarding an

argument for failing to comply with CR 76.12(4)(c)(v)); Stigall v. Commonwealth, No.

2010-SC-000393-MR, 2011 WL 2438377, *3 n.2 (Ky. June 16, 2011) ( “ We will not

consider arguments that fail to conform with our rules. ” ); see Brooks v. LexingtonFayette Urban Cty. Housing Authority, 132 S.W.3d 790, 807 (Ky. 2004) (declining to

address argument for failing to comply with CR 76.12(4) (c)(iv)) ; Miles v.

Commonwealth, No. 2007-SC-000298-MR, 2009 WL 160435, *6 (Ky. Jan. 22, 2009)

(arguments presented to the Court in violation of CR 76. 12(4)(c)(v) not addressed).

20 Daugherty v. Commonwealth, 467 S.W.3d 222, 233-34 (Ky. 2015).

7KELLER, J., DISSENTING: I respectfully dissent from the majority of

this Court ’ s decision to strike the Commonwealth ’ s brief and dismiss this

appeal pursuant to CR 76.12(8)(a). I agree that such a decision is within this

Court ’ s discretion. However, I disagree that the use of that discretion in this

circumstance is appropriate.

This case has a long and thorough history. After Roth was charged by

the Commonwealth, the case was presented to a jury and that jury determined

Roth was guilty beyond a reasonable doubt. The jury recommended a sentence

of six months in the county jail, as well as a fine. Roth appealed his judgment

as a matter of right. The circuit court affirmed the appeal in a complete, wellreasoned, and carefully scrutinized decision. The court cited at length to the

trial record, noting multiple and specific points in the trial before the jury. The

Court of Appeals granted discretionary review. In a 2-1 decision, the Court of

Appeals reversed and remanded the case for entry of a directed verdict of

acquittal. The Court of Appeals held that the Commonwealth failed to present

even a mere scintilla of evidence that Roth acted intentionally or wantonly with

regard to the treatment of his horses, despite testimony of multiple statements

Roth made about the care of the horses in question, including that “ he didn ’ t

give a s**t about those horses ” and would prefer to shoot them. The Court of

Appeals reversed, holding that the Commonwealth failed to present sufficient

proof on the proper mens rea. This case has undergone three levels of detailed

court scrutiny. Each court has cited to testimony and portions of the record in

which that testimony was given. Yet, despite these roadmaps for our review, as

well as a brief trial record, a majority of this Court has deemed it appropriate to

8dismiss an otherwise adequate appeal due to insufficient citations to the trial

record.

For many reasons, I find the Court ’ s response here disproportionate and

inappropriate. More often than we should, we have found it burdensome to

“ comb ” a “ voluminous ” record when a party fails to adequately cite to specific

portions of the record. However, this case culminated in a trial that lasted less

than a day. I believe we have sufficient information before us to determine the

relevant portions of the record and decide the issues of law before this Court. I

must concede that the brief presented to this Court is technically deficient and

I do not condone or ignore deficient practice. However, we have many options

with which to administer justice while still adhering to the rules of practice and

procedure before this esteemed Court. The Court could have chosen to

financially sanction the Commonwealth for presenting an improper brief; we

could have issued an order of deficiency, requiring the Commonwealth to

perfect the brief; we could have issued a show cause order as to why the appeal

should not be dismissed; we could have stricken the entire brief and allowed

the Commonwealth another opportunity to present a technically-proficient and

correct brief. It is true, the option to strike and dismiss is an option before this

Court, however, I disagree with its use here. I would utilize one of the abovedescribed court actions and then address the legal issues in this case

— the very

reason the Court decided to grant discretionary review in the first place.

Wright, J., joins.

9