RENDERED: APRIL 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 201 9

- CA

- 0538

- M R

DARRYL KEITH BAKER APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HON ORABLE LUCY A. VANMETER , JUDGE ACTION NO

. 1 8

- CR

- 0 0 637

C OMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

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BEFORE: COMBS, J ONES , AND MCNEILL , JUDGE S

. JONES , JUDGE: Darryl Keith Baker appeals from the Fayette Circuit Court ’ s final judgment and sentence of imprisonment entered on March 13, 2019

. At his jury trial, aside from a number of misdemeanor convictions, Baker was also convicted of third

- degr ee assault. He was sentenced to two

- years’ imprisonment on that charge , which was enhanced to fifteen years by being a first

- degr ee- 2

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persistent felony offender (PFO). After careful consideration , w e reverse and remand for a new trial based on the trial court’s erroneous application of Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) and its progeny.
I. Backgrou nd During the late evening hours of March 27, 2018, police officers were investigating an automobile parked outside the Day’s Motel on Versailles Road in Lexington. Police officers later describe d the Day’s Motel as being in a “high call volume” area. B aker, a homeless black man, occupied the front passenger seat of the vehicle . While the officers were questioning Baker, they repeatedly directed him to keep his hands in view , because Baker kept placing his hands inside his jacket

. The officers asked Ba ker for permission to search the vehicle. Baker declined, stating the vehicle did not belong to him and he only had the owner’s permission to stay there.

After declining to give permission to search, Baker once again hid his hands, this time dropping t hem below the seat. To ensure Baker was not reaching for a weapon , an officer opened the door of the vehicle . When the door opened , Bak er became aggressive, jumping out of the vehicle wi th his fists clenched and growling at the officers. At this point, the officers intended to arrest Baker for- 3

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menacing 1 and ordered him to get on the ground. When Baker did not comply, Officer David Smith of the Lexington Police Department tried to restrain Baker by grasping his right arm in order to handcuff him. Baker responded by punching Officer Smith several times, causing injuries to the officer’s chin, left eye, and finger. After subduing Baker, the officers searched the vehicle and found a narcotics pipe and a used syringe.

Following Baker’s arrest , t he Fayette County grand jury indicted him on multiple charges stemming from th e incident : third

- degree assault , 2 resisting
arrest , 3 possession of drug paraphernalia , 4 and menacing. 5 The grand jury later added a charge of being a first

- degree persistent felony offen der (PFO) 6 to Baker’s
indictment. The Fayette Circuit Court held Baker’s jury trial on November 13,
2018

. 7 The Commonwealth presented testimony from several Lexington police

1 “Menacing” is defined in Kentucky Revised Statute (KRS) 508.050 as “intentionally plac[ing] another person in reasonable apprehension of imminent physical injury.”

2 KRS 508.025(1)(a), a Class D felony.

3 KRS 520.090, a Class A misdemeanor.

4 KRS 218A.500(2), a Class A misdemeanor.

5 KRS 5 08.050, a Class B misdemeanor.

6 KRS 532.080.

7 These proceedings in Fayette Circuit Court involved three separate judges. Judge John Reynolds conducted the guilt phase of Baker’s trial, but he left during jury deliberation in order to atten d to other matters. Judge Kimberly Bunnell presided when the jury returned its verdict.- 4

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officers, including Officer Smith, conforming to the above narrative. T he
Commo nwealth also introduced body camera video footage of the incident

. Baker did not present witnesses or other evidence in his defense.

After deliberation, the jury found Baker guilty o n all counts in the indictment and recommended a sentence of two years o n the third

- degree assault charge, enhanced to fifteen years by virtue of the PFO. For the remaining misdemeanor charges, the jury recommended a sentence of thirty

- days’
incarceration on each count

. The trial court entered its final judgment on March 13, 2019 , sentencing Baker in accordance with the jury’s recommendation

. This appeal follow ed.
II. Analysis

Baker presents three arguments on appeal

. First, he argues the trial court erroneously denied his motion to prohibit the Commonwealth from striking jur ors in violation of Batson v. Kentucky . Second, Baker argues the trial court erroneously denied his right to present mitigating evidence in the penalty phase. Third, Baker argues the trial court erroneously permitted the Commonwealth to refer to the site of the incident where he was arrested as “a high crime area,” in violation of the parties’ agreed motion in limine to refrain from such language. We agree with Baker’s first argument regarding Batson and note that such an error is
Finally, Judge Lucy A. VanMeter entered the final judgment upon her successful election to the seat formerly occupied by Judge Reynolds.- 5

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structural, requiring a new trial. For these reasons, we need not consider his other arguments at this time

.

Baker argues the trial court erroneously denied his Batson challenge to the prosecutor’s use of two peremptory strike s . At a bench conference d uring voir dire , Baker o bjected to the prosecutor’s use of peremptory strike s against
Juror 4696 and Juror 4079 , both of whom were black men. By way of explanation, the prosecutor argued that Juror 4696 had disclosed that his father was charged with murder in Fayette County in 1 986, when the juror was thirt een years old. Despite the juror ’s assert ion he would be impartial during Baker’s trial , the prosecutor argued she was uncertain what the juror’s experi ence was with the court system. Notably, the prosecutor elected not to st rike Juror 4718, a white woman, who disclosed that she had a brother who was prosecuted for fraud in federal court. Like the immediately preceding Juror 4696, Juror 4718 stated her family member was treated fairly and it would not affect her ability to si t as a juror. Next,

r egarding Juror 4079, the prosecutor stated the following reason for the strike :

I don’t know if you caught this, but whenever his name was called, he stood up, shook his head, and was very disgruntled about it, and kind of gave off ba d body language while we were asking questions

— I don’t know if you caught it or not. He stood up really quick and sat down . . . . It was pretty quick. Baker’s counsel maintained his objection to the strikes, asserting these were insufficiently race

- neu tral reasons and did not comport with Batson . Without- 6

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providing analysis or commentary, t he trial court simply stated, “w ell, [the prosecutor] stated her reasons. You preserved that for appeal.”

Batson v. Kentucky forbids the use of peremptory strikes against a potential juror based on race because doing so results in a violation of equal protection principles in the federal constitution

. “ Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendm ent was designed to cure. ” Batson , 476 U.S. at 85, 106 S. Ct. at 1716

. A prosecutor may use a peremptory strike against a potential juror who happen s to be long to a racial minority group, but the prosecutor must have a race

- neutral reason for doing so. Id ., 476 U.S. at 98, 106 S. Ct. at 1724. “[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose[.]” Snyder v. Louisiana , 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008) (quoting United States v. Vasquez

- Lopez , 22 F.3d 900, 902 (9th Cir. 1994) ).

When a defendant alleges the prosecutor has struck a venire person based on race, the trial court must engage in a three

- part test under Batson to evaluate the claim :

First, a defendant must make a prim a facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race

- neutral basis for striking the juror in question. Third, in light of the parties’ submissions, t he trial court must determine whether the defendant has shown purposeful discrimination.- 7

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United States v. Atkins , 843 F.3d 625, 631 (6th Cir. 2016) (citations and internal quotation marks omitted); Mash v. Commonwealth , 376 S.W.3d 548, 555 (Ky. 2012)

. “[ A] Batson violation is structural error not subject to harmless error review.” Johnson v. Commonwealth , 450 S.W.3d 696, 706 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth , 493 S.W.3d 814 (Ky. 2015). However, “ [b] ecause the trial court is t he best ‘judge’ of the Commonwealth’s motives in exercising its peremptory strikes, great deference is given to the court’s ruling.” Tunstull v. Commonwealth , 337 S.W.3d 576, 585 (Ky. 2011) (quoting Gray v. Commonwealth , 203 S.W.3d 679, 691 (Ky. 2006) ). “ On appellate review, a trial court’s denial of a Batson challenge will not be reversed unless clearly erroneous. ” Id . (citations omitted).

In examining the issue through the three

- part test outlined above, we have ascertained there is no need to analyze the first prong , that of prima facie discrimination, because the prosecutor volunteered an explanation for the peremptory strike. When “the prosecutor offered a race

- neutral explanation for the peremptory challenge and the trial court has ruled on the ul timate issue of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing . . . becomes moot.” Commonwealth v. Snodgrass , 831 S.W.2d 176, 179 (Ky. 1992).- 8

- For the second prong of the test, “ [t] he issue is th e facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Mash , 376 S.W.3d at 555 (quoting Hernandez v. New York , 500 U.S. 352, 360, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991)). “ This step sets a fairly low bar for the Commonwealth to meet. ” Id

. Here, the prosecutor offered two separate expla nations for striking the jurors . First, regarding Juror 4696, the prosecutor averred that the juror’s father was previously charged with murder , and the juror may have retained some ill will against the court system. Next, regarding Juror 4079, the prosecutor allegedly viewed a momentary disgruntlement when the juror heard his name called. Bo th of the prosecutor’s asserted explanations are facially

race - neutral, in that they “ could apply with equal force to a juror of any race .” Id

. Therefore, the second prong of Batson was met.

Finally, the third prong of the test require d the trial court “to determine whether the prosecutor’s race

- neutral reason was actually a pretext for racial discrimination. ” Id

. at 556. On this point, we rely heavily on the trial court :

Because the trial court’s decision on this point requires it to assess the credib ility and demeanor of the attorneys before it, the trial court’s ultimate decision on a Batson challenge is like a finding of fact that must be given great deference by an appellate court

. In the absence of exceptional circumstances, appellate courts shou ld defer to the trial court at this step of the Batson analysis.- 9

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Id . (citations and internal quotation marks omitted). This final step of Batson requires the trial court to engage in an independent assessment of the prosecutor’s reasoning and credibilit y. “ [A] judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact.” Abukar v. Commonwealth , 530 S.W.3d 915, 918 (Ky. App. 2017) (quoting Washington v. Commonwealth , 34 S.W.3 d 376, 379 (Ky. 2000)).

Unfortunately, the trial court in the case sub judice utterly failed to conduct any kind of independent assessment of the prosecutor’s reasoning. Step three of Batson requires t he trial court to “assess the plausibility of the pro secutor’s explanations in light of all relevant evidence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class.” McPherson v. Commonwealth , 171 S.W.3d 1, 3 (Ky. 2005) (citation omitte d). I nstead, the record reflects how the trial court either omitted step three or conflated it with step two: “Well, [the prosecutor] stated her reasons. You preserved that for appeal.” This is gravely in sufficient. “A [trial ] court must independently assess a race - neutral explanation and ex plicitly rule on its credibility

. . . . It is inappropriate for a [trial] court to perfunctorily accept a race

- neutral explanation without engaging in further investigation.” United States v. Cleveland , 907 F.3d 423, 434 (6th Cir. 2018) (citations omitted). Furthermore, it is error to combine the second and third prongs of the Batson inquiry. Thomas v.- 10

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Commonwealth , 153 S.W.3d 772, 777 (Ky. 2004) (citing Purkett v. Elem , 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) ) ; see also United States v. Kimbrel , 532 F.3d 461 (6th Cir. 2008)

.

The dissent focuses on our Supreme Court’s holding in Commonwealth v. Coker , 241 S.W.3d 305 (Ky. 2007), arguing the result in that case should control here. After a close e xamination, we believe Coker is narrowly distinguishable. In Coker , the trial court made a very terse ruling which the Kentucky Supreme Court held comported with step three of Batson : “The trial
court ruled without elaboration that there had been no Bats on violation.” Id . at 307 . Here, the trial court made no ruling at all

— in spite of the fact that “trial judges possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” Flowers v. Mississippi , 139 S. Ct. 2228, 2243, 204 L. Ed. 2d 638 (2019).

Coker ’s concurrence is particularly compelling as to why a trial court should explicitly rule on a Batson challenge . Chief Justice Lambert, joined by Justice Noble, noted the “ease of evasi on” inherent in the Batson rule, and warned that “ [a] ppellate courts cannot discharge their duty of review without knowing what the trial court thought of the controversy.” Id . at 310 (Lambert, CJ, concurring). We defer to a trial court’s Batson ruling, but, as the Sixth Circuit stated in another context, “ [d] eferential review is not no review [.]” McDonald v.- 11

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Western

- Southern Life Ins. Co. , 347 F.3d 161, 172 (6th Cir. 2003) (citation and internal quotation marks omitted). In short, the trial court’s fai lure to issue a ruling
hinder ed meaningful appellate review.

Moreover , in Snyder v. Louisiana , a case decided after Coker , the United States Supreme Court considered the issue of a trial court which failed to
issue a Batson ruling. The Supreme Court dete rmined that demeanor could form the basis for a peremptory strike ; however, in Snyder , “ the record does not show that the trial judge actually made a determination concerning [the potential juror’s]
demeanor.

. . . Rather than making a specific finding on the record concerning [the potential juror’s] demeanor, the trial judge simply allowed the challenge without explanation. ” Snyder , 552 U.S. at 479, 128 S. Ct. at 1209. In the absence of a ruling by the trial court, the Supreme Court declined to presume that the trial court agreed with the prosecutor’s assertions. Id

. We conclude there is a significant difference in the trial court ’s providing a step

- three ruling without an explanation, as in Coker , and a failure to make any ruling at all, as in Snyder and the case sub judice

. Finally, even if we were to assume the trial court explicitly ruled on the prosecutor’s peremptory strike of Juror 4079, the trial court’s acceptance of the
demeanor

- based rationale would be an abuse of discretion requiring revers al under
Batson . In coming to this conclusion , we are mindful of the Kentucky Supreme- 12

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Court’s relatively recent memorandum opinion of Sifuentes v. Commonwealth , No. 2016

- SC

- 000485

- MR , 2018 WL 898228 (Ky. Feb. 15, 2018). 8 In Sifuentes , the prosecutor used a peremptory strike against a juror who directed “belligerent” and “hostile” looks at the Commonwealth’s counsel table. Id . at *3. T he Supreme
Court acknowledged the facial neutrality of this reason under step two of Batson

. Id . Nonetheless, despite t he trial court’s acceptance of the prosecutor’s reasoning, the Supreme Court held th e explanation for the peremptory strike was insufficient under Batson

.

In its decision to reverse for the Batson violation , the Sifuentes court held , “ we have consistent ly found Batson violations when only the appearance or demeanor of a perspective juror is the given reason. ” Id . at *4 (citing Johnson , 450 S.W.3d at 70 3

- 0 6, abrogated on other grounds by Roe , 493 S.W.3d 814 ; Washington , 34 S.W.3d at 379 )

. The Sifuentes court held the prosecutor “ did not offer any explanation as to why [the prospective juror’s] perceived hostility would make him unfit to serve as a juror ” and pointed out that “ when proffered reasons are so vague, the ‘ vagueness alone could fairly point to ward a conclusion that they are merely pretextual. ’ ” Id . (quoting Johnson , 450 S.W.3d at 704 , abrogated on other grounds by Roe , 493 S.W.3d 814 ).

8 Sifuentes is an unpublishe d opinion which we cite not as authority but for its persuasive value under Kentucky Rule of Civil Procedure (CR) 76.28(4)(c).- 13

- In the case before us, the demeanor

- based rationale is even weaker than that found to be insufficient in Sif uentes . The prosecutor claimed Juror 4079 had “bad body language” and seemed “disgruntled,” which falls short of the outright belligerent and hostile looks directed toward the prosecutor in Sifuentes

. Furthermore, the prosecutor in this case admitted to the trial court during the bench
conference that the look was so fleeting that the judge probably did not see it : “ I don’t know if you caught it or not. He stood up really quick and sat down . . . . It was pretty quick. ” Even though Sifuentes is not bi nding authority, its rationale persuades us that a similar result is justified in this case. Even if the trial court had explicitly accepted the prosecutor’s demeanor

- based peremptory strike against Juror 4079, which we have previously noted did not occur , doing so would have amounted to an abuse of discretion requiring reversal.

Because the trial court failed to undertake an inquiry consistent with
Batson ’s framework , and Batson violations are “structural error[s] not subject to harmless error review[,]” Johnson , 450 S.W.3d at 706 , abrogated on other grounds by Roe , 493 S.W.3d 814, we are required to reverse Baker’s judgment of
conviction and remand for a new trial.- 14

- III. Conclusion For the foregoing reasons, w e reverse the judgment of conviction and

reman d this matter for a new trial conducted in a manner not inconsistent with this opinion

. COMBS, JUDGE, CONCURS.

MCNEILL, JUDGE, DISSENTS AND FILES SEPARATE
OPINION. MCNEILL, JUDGE, DISSENTING: I respectfully dissent because I do not believe Batson 9 req uires a trial court to make detailed findings or explain its reasoning when evaluating a proffered reason for a peremptory strike. The majority opinion holds the trial court “failed to undertake an inquiry consistent
with Batson ’s framework,” when it “utt erly failed to conduct any kind of independent assessment” of the prosecutor’s proffered reasons for its peremptory strikes. It reaches this conclusion because the trial court “without providing analysis or commentary” denied the Batson challenge by stati ng “well, [the prosecutor] stated her reasons. You preserved that for appeal.”

The majority cites United States v. Cleveland , 907 F.3d 423 (6th Cir. 2018) , for the requirement that a trial court must “independently assess a race

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9 Batson v. Kentucky , 476 U.S. 79, 80, 106 S. Ct. 1712, 1714, 90 L. Ed. 2d 69 (1986), holding modified by Powers v. Ohio , 499 U.S . 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).- 15

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neutral explanation and e xplicitly rule on its credibility . . . .” Id. at 434 (emphasis added). But decisions of lower federal courts are not binding on state courts. Commonwealth Nat. Res. & Env ’ t Prot. Cabinet v. Kentec Coal Co. , 177 S.W.3d 718, 725 (Ky. 2005); Cook v. Poppl ewell , 394 S.W.3d 323, 346 (Ky. 2011) (Abramson, J., concurring) (“We, of course, look to the Sixth Circuit with a great deal of respect, but as the Court of Appeals noted, we are not bound by Sixth Circuit precedent.”).

Further, the issue of whether a trial court must make explicit findings as to the credibility of a prosecutor’s race

- neutral reason for its peremptory strike appears unsettled in the federal courts of appeals, including the Sixth Circuit. See Mitchell v. LaRose , 802 F. App ’ x 957, 961 (6th Cir. 2020) 10 (“[A] clear rejection
of a Batson motion without explicit findings violates no clearly established federal law.”); compare Barnes v. Anderson, 202 F.3d 150, 156

- 57 (2d Cir. 1999) (holding it was error for the trial court to deny a Batson m otion without explicitly adjudicating the credibility of the non

- moving party’s race neutral explanations for its peremptory strikes) with McKinney v. Artuz , 326 F.3d 87, 100 (2d Cir. 2003) (“Although reviewing courts might have preferred the trial court t o provide express reasons for each credibility determination, no clearly established federal law required the trial court to do so.”).

10 Pursuant to Federal Rule of Appellate Procedure 32.1, unpublished federal opinions are entitled to the same persuasive import as published federal opinions.- 16

- As noted in Mitchell : “The Supreme Court has never directed trial courts to make detailed findings . . . before ruling o n a Batson motion.” Caudill v. Conover , 881 F.3d 454, 459 (6th Cir. 2018), cert. denied , ––– U.S.

–––– , 139 S. Ct. 793, 202 L.Ed.2d 586 (2019); see Miller

- El v. Cockrell , 537 U.S. 322, 347, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[A] state court need not make detailed findings” to render a proper Batson ruling). Nor has the Supreme Court generally required trial courts to make credibility findings about a party’s proffered race

neutral reason beyond a clear acceptance or rejection of the motion. Indeed, Batson itself “decline[d] . . . to formulate particular procedures to be followed” beyond the three

- step framework. 476 U.S. at 99, 106 S.Ct. 1712. Mitchell , 802 F. App ’ x at 960.

We are, however, bound by Kentucky Supreme Court precedent,

see Smith v. Vilvarajah , 57 S.W.3d 839, 841 (Ky. App. 2000) (citing SCR 11 1.030(8)(a)) (“as an intermediate appellate court, this Court is bound by established precedents of the Kentucky Supreme Court.”), and its holding in Com monwealth v. Coker , 241 S.W.3d 305 (Ky. 200 7) , appears controlling. In that case, a panel of this Court reversed a trial court’s denial of a defendant’s Batson challenge. On discretionary review, our Supreme Court reversed, concluding that “the Court of Appeals did not show proper deference to th e wide latitude afforded trial courts in ruling on Batson challenges.” Id. at 306.

11 Kentucky Supreme Court Rules.- 17

- There, as here, the trial court had denied the Batson challenge “without elaboration.” Id. at 307. Both defendant and Court of Appeals cited United States v. Hill , 146 F.3d 337 (6th Cir. 1998), which reversed a trial court’s
Batson ruling, holding it could not conduct a proper review because the trial court had not explained its reasoning for its rulings in step three of the Batson analysis. Our Supreme Court held:

We reject any implication in Hill that an otherwise valid conviction must be reversed if a trial court fails to articulate its reasons for denying a Batson challenge. We believe that the fact that the trial court denied the Batson challenge inherently and ob viously contains an implicit finding that it accepted the Commonwealth ’ s reason for striking the African

- American veniremember as being sufficiently race

- neutral and non

- pretextual. Because the Batson framework is intended to minimize delay in jury select ion, we reject Hill and the Court of Appeals ’ seeming requirement that a trial court make detailed Batson

- related findings under the facts of this case. This conclusion is reinforced by the fact that there is no indication that Coker asked the trial court for any further findings. Coker , 241 S.W.3d at 309.

Pursuant to Coker , therefore, a trial court is not required to make explicit findings or explain its reasoning in denying a Batson challenge. The trial court’s denial of Baker’s Batson challenge “in herently and obviously contains an implicit finding that it accepted the Commonwealth ’ s reason for striking the African

- American veniremember as being sufficiently race

- neutral and non

-- 18

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pretextual.” Coker , 241 S.W.3d at 309. Further, as in Coker , Baker di d not request more detailed findings from the trial court.

As an additional reason to affirm the trial court, I would find that Baker’s failure to rebut the Commonwealth’s facially race

- neutral reasons for its peremptory strikes by offering evidence of p urposeful discrimination is fatal to his
Batson claims. “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem , 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (citation omitted). “Once the Commonwealth gave its reasoning and such was acceptable to the trial court, the burden shifted to the Appellant to rebut the neutrality of the reasoning.” Gray v. Com monwealth , 203 S.W.3d 679, 690 (Ky. 2006); see also Mash v.
Com monwealth , 376 S.W.3d 548, 555 (Ky. 2012) (citation omitted) (“At the third step of Batson, the burden shifts back to the defendant to show ‘purposeful discrimination.’”).

Because Baker offered no evidence of purposeful discrimination “there was nothing on the record from which the trial court could have found that
the Commonwealth ’ s proffered reasons were a mere pretext for racial discrimination.” Chatman v. Com monwealth , 241 S.W.3d 799, 804 (Ky. 2007). I am, thus, “not persuaded th at the Appellant met his subsequent burden to provide further evidence on which the trial court could determine the Commonwealth ’ s- 19

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peremptory strike to be discriminatory.” Gray , 203 S.W.3d at 691 (citation omitted). Therefore, I would affirm the judgmen t of conviction.

BRIEF S FOR APPELLANT: Emily Holt Rhorer Frankfort , Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky