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determining that the driveway outside a home was sufficiently open to the public to constitute a "public place" and affirming denial of a directed verdict
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NO. 2015-CA-001930-MR
04-06-2018
MICHAEL THOMPSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Todd Henning Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 15-CR-00052 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: MAZE, SMALLWOOD, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Michael Thompson brings this appeal from a November 16, 2015, judgment and sentence of imprisonment entered in the Fulton Circuit Court sentencing Thompson to a total of five-years' imprisonment. We affirm in part, reverse in part, and remand.
A brief recitation of the facts relevant to disposition of this appeal are as follows. On the night of July 14, 2015, police were called to the home of Malcom Bing. Deputy Johnny Smith responded to the call and arrived at the home around midnight. Bing was waiting at the front door and allowed Deputy Smith inside. A man subsequently identified as Michael Thompson was sitting on the couch. Deputy Smith told Thompson he would like to speak with him outside, and Thompson responded, "Just come in and arrest me." Deputy Smith told Thompson he was not arresting him and would just like to speak with him outside of the home. Thompson complied with the request and accompanied Deputy Smith outside. The two stood in front of the patrol car, and Deputy Smith proceeded to conduct a safety pat down of Thompson. Two other officers, Deputy Gary Fulcher and Officer Derek Goodson, subsequently arrived on the scene, and an altercation ensued between the officers and Thompson. After Thompson was handcuffed, he swung his arms around, and his elbow struck Deputy Fulcher in the face. Thompson was ultimately arrested and taken into custody.
Although not entirely clear from the record, it appears that Malcolm Bing called police and reported there was an intoxicated individual in his home who would not leave.
Thompson was indicted by a Fulton County Grand Jury upon the charges of assault in the third degree, criminal mischief in the third degree, disorderly conduct in the second degree, alcohol intoxication, giving an officer a false name, criminal trespass in the first degree, and resisting arrest. A jury trial ensued. The trial court granted a directed verdict of acquittal upon the offense of criminal trespass, but the jury found Thompson guilty of the remaining offenses. The trial court sentenced Thompson to a total of five-years' imprisonment. This appeal follows.
I. DIRECTED VERDICT
Thompson contends the trial court erred by failing to direct a verdict of acquittal upon the offenses of disorderly conduct, alcohol intoxication, assault in the third degree, and giving a police officer a false name.
The standard of review for a motion for directed verdict in a criminal action was articulated by the Kentucky Supreme Court in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.Id. at 187 (emphasis added) (citations omitted); Kentucky Rules of Civil Procedure (CR) 50.01. And, "[a] court must be mindful of the rule that '[c]redibility and weight of the evidence are matters within the exclusive province of the jury.'" Reynolds v. Com., 113 S.W.3d 647, 650 (Ky. App. 2003) (quoting Com. v. Smith, 5 S.W.3d 126, 129 (Ky. 1999)).
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
Kentucky Rules of Civil Procedure 50.01 provides:
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
(A) Disorderly Conduct in the Second Degree
and Alcohol Intoxication
Thompson specifically asserts he was entitled to a directed verdict of acquittal upon the offenses of disorderly conduct in the second degree and alcohol intoxication as the Commonwealth failed to prove that Thompson's conduct occurred in a "public place." The Commonwealth asserts this allegation of error was not properly preserved for appellate review as Thompson did not specify the basis for the directed verdict upon these offenses. However, we need not determine whether the issue was properly preserved as we believe, based upon the uncontroverted facts, Thompson's conduct occurred in a public place. As the conduct occurred in a public place, Thompson is not entitled to relief from the trial court's denial of his motion for a directed verdict of acquittal upon second-degree disorderly conduct or alcohol intoxication.
The elements necessary for a conviction upon disorderly conduct in the second degree are set forth in Kentucky Revised Statutes (KRS) 525.060. Relevant to this appeal, KRS 525.060 provides:
(1) A person is guilty of disorderly conduct in the second degree when in a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he:
KRS 525.060(1)(d) (emphasis added). And, the elements necessary for a conviction upon the offense of alcohol intoxication are found in KRS 222.202:. . . .
(d) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
(1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.KRS 222.202(1) (emphasis added).
Both the disorderly conduct statute (KRS 525.060) and the alcohol intoxication statute (KRS 222.202) require that the prohibited conduct occur in a "public place." The Kentucky General Assembly has defined "public place" in KRS 525.010(3) as:
"Public place" means a place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusements, parks, places of business, playgrounds, and hallways, lobbies, and other portions of apartment houses and hotels not constituting rooms or
apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place.
The scope of the definition of "public place" as found in KRS 525.010(3) was recently addressed by the Kentucky Supreme Court in Maloney v. Commonwealth, 489 S.W.3d 235 (Ky. 2016):
KRS 525.010(3) provides a definition of a "public place" but that definition is not exhaustive, and while this Court has not explicitly stated whether a porch would be considered a public place, our previous decisions make it clear that Appellant's porch was open at least to limited access by the general public, which would include inquisitive police officers.Id. at 241 (emphasis added). From the above quoted language, it is clear that the Supreme Court in Maloney viewed a porch as a public place because it was "open at least to limited access by the general public[.]" Id. at 241.
In the case sub judice, the facts are uncontroverted that Thompson's conduct occurred in the driveway of Bing's home where Deputy Smith's patrol car was parked. As we believe a driveway is more open "to limited access by the general public" than a porch, we must conclude that a driveway is a public place as defined in KRS 525.010(3). See Maloney, 489 S.W.3d at 241. Accordingly, we hold that the trial court properly denied Thompson's motion for a directed verdict of acquittal upon the offenses of disorderly conduct in the second degree and alcohol intoxication, and affirm his conviction of the same.
(B) Assault in the Third Degree
Thompson next asserts the trial court erred by denying his motion for a directed verdict of acquittal upon the offense of assault in the third degree. Thompson specifically contends the Commonwealth failed to prove he acted intentionally in causing or attempting to cause injury to Deputy Fulcher.
Assault in the third degree is defined in KRS 508.025 and provides, in relevant part, that a person is guilty of the offense when he "intentionally causes or attempts to cause physical injury to" a peace officer. KRS 508.025(1)(a)(1). And, intentionally is defined in KRS 501.020(1) as:
A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.
The evidence presented at trial demonstrates that after Thompson was handcuffed he swung his arms around causing his elbow to strike Deputy Fulcher in the face and breaking his glasses. As noted in Benham, the trial court is required to draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Benham, 816 S.W.2d 186. Based on our review, we believe there was sufficient evidence for a jury to reasonably believe that Thompson intentionally swung his arms around thereby causing injury to Deputy Fulcher. Consequently, we are of the opinion that there was sufficient evidence presented to survive Thompson's motion for directed verdict of acquittal upon the third-degree assault charge. Thus, the issue was properly presented to the jury for determination and his conviction is affirmed.
(C) Giving an Officer a False Name
Thompson also contends the trial court erred by denying his motion for a directed verdict of acquittal upon the charge of giving a police officer a false name.
KRS 523.110 defines the offense of giving a police officer a false name as follows:
A person is guilty of giving a peace officer false identifying information when he or she gives a false name, address, or date of birth to a peace officer who has asked for the same in the lawful discharge of his or her official duties with the intent to mislead the officer as to his or her identity. The provisions of this section shall not apply unless the peace officer has first warned the person whose identification he or she is seeking that giving a peace officer false identifying information is a criminal offense.KRS 523.110(1) (emphasis added).
A review of the evidence introduced at trial reveals the Commonwealth did not present any evidence that Thompson was warned by the officers that giving them a false name was a criminal offense. And, the Commonwealth concedes it did not present any such evidence. As there was no evidence that the officers warned Thompson as required by KRS 523.110, we conclude the trial court erred by failing to direct a verdict of acquittal upon the charge of giving an officer a false name. As such, we believe the trial court erred by denying Thompson's motion for a directed verdict of acquittal upon the offense of giving an officer a false name. We, thus, reverse Thompson's conviction upon the offense of giving an officer a false name.
II. ADMISSION OF TESTIMONY REGARDING
THOMPSON'S MENTAL STATE AS TO
THIRD-DEGREE ASSAULT
Thompson maintains the trial court erred by admitting opinion testimony of lay witnesses regarding whether Thompson committed the offense of third-degree assault. More specifically, Thompson asserts it was improper to admit the testimony of Deputy Smith and Officer Goodson that they believed Thompson acted intentionally when he struck Deputy Fulcher. Thompson maintains that lay witnesses are prohibited from testifying as to the mental state of another person per Kentucky Rules of Evidence (KRE) 701. Thompson acknowledges this issue was not properly preserved below and requests review under the palpable error standard of Kentucky Rules of Criminal Procedure (RCr) 10.26. Pursuant to RCr 10.26, a palpable error occurs if a defendant's substantial rights are affected and a manifest injustice occurs. Martin v. Com., 207 S.W.3d 1 (Ky. 2006).
KRE 701 governs the admissibility of opinion testimony by lay witnesses. Pursuant to KRE 701 and the common law that preceded it, a lay witness is not generally permitted to testify regarding the mental state of another person. Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009). However, there is an exception to the general rule which permits a lay witness to testify as to his opinion of the mental state of another person "if the opinion is based on the witness's own factual observations or perceptions." Id. at 855 (quoting Young v. Com., 50 S.W.3d 148, 170 (Ky. 2001)).
KRE 701 provides as follows:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:In other words, KRE 701 allows a lay witness to express an opinion upon the mental state of an individual if the witness is expressing an opinion about the mental state of the person "as manifested to that witness." Gabbard, 297 S.W.3d at 855 (quoting Young, 50 S.W.3d 148, 170 (Ky. 2001)) Simply put, KRE 701 permits admission of opinion testimony by a lay witness as to the mental state of an individual only if the opinion "is rationally based on the perception of the witness and is helpful to a determination of a fact in issue." Hampton v. Com., 133 S.W.3d 438, 440 (Ky. 2004).
(a) Rationally based on the perception of the witness;
(b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
During trial, the following exchanges took place between the Commonwealth and Deputy Smith and between the Commonwealth and Officer Goodson. The Commonwealth asked Deputy Smith upon redirect examination whether he believed Thompson intentionally struck Deputy Fulcher. Based upon his observation, Deputy Smith responded, "There is no doubt." Then, the Commonwealth asked Officer Goodson upon redirect examination if he believed Thompson intentionally struck Deputy Fulcher. Officer Goodson's perception was that Thompson had intentionally struck Deputy Fulcher. Both officers testified as to their own particular observations or perceptions of the facts surrounding Thompson striking Deputy Fulcher.
Upon the whole, we believe the testimony of Deputy Smith and Officer Goodson as to Thompson's mental state was properly admitted under KRE 701. See Gabbard, 297 S.W.3d 844. The officers' opinions were based upon Thompson's actions and emotions as manifested by Thompson. And, the officers' opinions were squarely based upon their personal perception of the facts and were helpful to determining a fact in issue. See Hampton, 133 S.W.3d 438. Accordingly, we cannot say that palpable error occurred in the trial court's admission of the officers' opinions as to Thompson's mental state.
III. JURY INSTRUCTION UPON
RESISTING ARREST
Thompson contends the trial court improperly instructed the jury upon the offense of resisting arrest. Specifically, Thompson asserts the jury instruction given upon the offense of resisting arrest omitted an essential element of the crime - the intentional mental state. Thompson acknowledges that this contention was not properly preserved for appellate review and requests review for palpable error under RCr 10.26.
The trial court instructed the jury upon the charge of resisting arrest as follows:
A. That in this county on or about the 14th of July, 2015, and before the finding of the Indictment herein, the Defendant recognized Gary Fulcher, Johnny Smith and Derek Goodson to be acting in their official capacity as peace officers and attempted to prevent Gary Fulcher, Johnny Smith and Derek Goodson from affecting the arrest of the Defendant;Thompson's Brief at 19-20.
AND
B. That in so doing the Defendant, Michael Thompson, created a substantial risk of physical injury to Gary Fulcher, Johnny Smith and Derek Goodson.
Resisting arrest is defined in KRS 520.090 and provides, in relevant part, as follows:
(1) A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a peace officer, recognized to be acting under color of his official authority, from effecting an arrest of the actor or another by:
. . . .
KRS 520.090(1)(b) (emphasis added).
(b) Using any other means creating a substantial risk of causing physical injury to the peace officer or another.
It is well-established that "criminal convictions must rest upon a jury determination that the defendant is guilty of each and every element of the crime with which he is charged." Young v. Com., 426 S.W.3d 577, 585 (Ky. 2014) (citations omitted). Erroneous jury instructions that omit an element of an offense are subject to the harmless-error analysis, and the Commonwealth bears the burden upon this assertion. Id. However, if a jury is not instructed upon the requisite mental state of the defendant, our courts have reversed the trial court despite the lack of preservation as constituting palpable error under RCr 10.26. Young, 426 S.W.3d 577. In Young, the Kentucky Supreme Court addressed a failure to instruct on mental state as follows:
This Court, as evidenced by this precedent, cannot affirm in the face of an instructional error where the jury has not found that the appellant acted with a required mental state. Unlike other elements which, when omitted, may result in harmless error under the specific circumstances of that case "[i]ntent is an essential element and failure to instruct is prejudicial error." Carpenter v. Commonwealth, 771 S.W.2d 822, 825 (Ky.1989) (citing Watkins v. Commonwealth, 298 S.W.2d 306 (Ky.1957)). We thus hold that the error was not merely harmless.Id. at 586.
In the case sub judice, the instruction given to the jury omitted the essential element of Thompson's requisite mental state. KRS 520.090 defines resisting arrest and clearly requires that the defendant's conduct be intentional. As the instruction given in this case upon resisting arrest did not include the essential element of the requisite mental state, we believe the failure constituted palpable error per RCr 10.26. See Young, 426 S.W.3d 577. As such, we reverse Thompson's conviction upon the offense of resisting arrest and remand for retrial.
IV. IMPOSITION OF COURT COSTS
Thompson contends that the trial court erred by imposing court costs as he was impoverished and unable to pay same. The record reveals that the trial court ordered Thompson to pay court costs of $160. The trial court, however, deferred payment of the court costs until six months after Thompson was released from prison. Thompson acknowledges this alleged error was not preserved for our review but argues preservation is unnecessary as an appellate court has inherent jurisdiction to correct sentencing errors. Alternatively, Thompson requests review pursuant to RCr 10.26 for palpable error.
It is well-established that an appellate court has inherent jurisdiction to correct imposition of an illegal sentence. See Travis v. Com., 327 S.W.3d 456 (Ky. 2010). In Jones v. Commonwealth, 382 S.W.3d at 27, the Kentucky Supreme Court explained that "an appellate court is not bound to affirm an illegal sentence just because the issue of the illegality was not presented to the trial court." However, more recently in Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014), the Supreme Court clarified that although an appellate court may reverse the imposition of court costs absent preservation to correct an illegal sentence "we will not go so far as to remand a facially-valid sentence to determine if there was in fact error. . . . It is only when the defendant's poverty status has been established, and court costs assessed contrary to that status, that we have a genuine 'sentencing error' to correct on appeal."
And, pursuant to the palpable error standard of RCr 10.26, an unpreserved error may be reviewed "on appeal only if the error is 'palpable' and 'affects the substantial rights of a party,' and even then relief is appropriate only 'upon a determination that manifest injustice has resulted from the error.'" Wiley v. Com., 348 S.W.3d 570, 574 (Ky. 2010) (citations omitted).
The imposition of court costs is governed by KRS 23A.205, which provides that court costs shall be imposed upon a convicted defendant "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2)[.]" Additionally, KRS 23A.205(3) permits a trial court to establish an installment payment plan, but the court costs must be fully paid within one year of sentencing. Buster v. Com., 381 S.W.3d 294 (Ky. 2012).
KRS 453.190(2) defines a poor person as one "who has an income at or below one hundred percent (100%) on the sliding scale of indigency . . . or is unable to pay the costs and fees of the proceeding . . . without depriving himself or his dependents of the necessities of life . . . ."
In the November 16, 2015, order, the trial court found that Thompson was "able bodied" and, thus, was not a "poor person" under KRS 453.190(2). As the trial court found Thompson not to be a poor person, the imposition of costs is not contrary to defendant's poverty status and does not constitute an illegal sentence. See Spicer, 442 S.W.3d 26. Therefore, the sentence was facially valid, and no genuine sentencing error occurred. See id. As a result, the alleged error must be reviewed for palpable error under RCr 10.26. See Martin, 207 S.W.3d 1.
A review of the record reveals that Thompson was sentenced to five-years' imprisonment. The trial court ordered Thompson to pay court costs in full within six months of his release from prison. However, pursuant to KRS 23A.205(3) and KRS 534.020, a court is not permitted to extend the payment period of court costs beyond one year from the date of sentencing. See Buster, 381 S.W.3d 294. As it is uncertain when Thompson will be released from prison, the trial court violated KRS 23A.205(3). See Jones, 527 S.W.3d 820. Additionally, Thompson had no assets at sentencing, no means of paying the imposed court costs, and no means of paying the court costs in the foreseeable future as he was sentenced to five-years' imprisonment. See Jones, 527 S.W.3d 820. Upon consideration of the whole, we conclude that the trial court's imposition of $160 in court costs pursuant to KRS 23A.205 was manifestly unjust and constituted palpable error under RCr 10.26. See Jones, 527 S.W.3d 820. We, thus, reverse the trial court's order imposing $160 in court costs.
Michael Thompson was disabled and received social security of $218 per month. However, Thompson owed that amount as his monthly child support obligation for his two children. --------
V. IMPOSITION OF MISDEMEANOR FINE
Thompson next contends that the trial court erred by imposing a misdemeanor fine of $25. Misdemeanor fines are governed by KRS 534.040(4), which provides that such fine "shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31." And, the erroneous imposition of a misdemeanor fine must be preserved unless the error is clear on its face. Trigg v. Com., 460 S.W.3d 322 (Ky. 2015). In Trigg, the Kentucky Supreme Court addressed the preservation issue and held that an "indigent defendant is obligated to challenge the imposition of a fine that is contrary to KRS 534.040(4), and failure to do so will foreclose appellate review unless the error is clear on its face." Id. at 333.
In the case sub judice, the trial court determined at numerous stages throughout the proceeding that Thompson was indigent pursuant to KRS 31.120. Despite such determination, the trial court still imposed the fine. As the trial court repeatedly found Thompson indigent, we believe imposition of the misdemeanor fine constituted clear error on its face and resulted in a manifest injustice. See Trigg, 460 S.W.3d 322; RCr 10.26. Therefore, we reverse the trial court's imposition of the $25 misdemeanor fine upon Thompson.
VI. IMPOSITION OF JAIL FEES
Finally, we address Thompson's contention that imposition of $2,662 in jail fees was erroneous. Jail fees are governed by KRS 441.265(1), which provides that "[a] prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner's confinement . . . except for good cause shown." The jail fee is intended to reimburse the county for expenses incurred by reason of the prisoner's confinement and is not considered court costs or a fine. See Jones v. Com., 382 S.W.3d 22 (Ky. 2011). KRS 441.265 "has its own provisions for accommodating the needs of impoverished inmates." Jones, 382 S.W.3d at 33. Pursuant to KRS 441.265, the trial court "may decline to impose the fee for good cause shown, which, in some circumstances, could include the inability to pay." Id. at 33-34. And, pursuant to KRS 441.265 the sentencing court may consider the ability of the prisoner to pay the jail fee "giving consideration to any legal obligation of the prisoner to support a spouse, minor children, or other dependents." KRS 441.265(2)(b). As Thompson failed to challenge the imposition of the jail fees, our review proceeds under RCr 10.26 for palpable error.
In this case, as noted, Thompson was adjudged at different times throughout the proceedings to be both indigent under KRS 31.120 and a poor person under KRS 453.190(2). He possessed no assets or no ability to pay jail fees in the foreseeable future. Under these circumstances, it is obvious that good cause existed for not imposing jail fees upon Thompson. And, we view the imposition of jail fees as constituting a palpable error that resulted in manifest injustice per RCr 10.26. We, therefore, reverse the imposition of jail fees totaling $2,662.
VII. SUMMARY
We affirm the trial court's denial of Thompson's motion for a directed verdict of acquittal upon the offenses of disorderly conduct in the second degree, alcohol intoxication, and assault in the third degree. We, likewise, affirm the trial court's decision to admit the lay witness testimony of Deputy Smith and Officer Goodson regarding whether Thompson intentionally struck Deputy Fulcher. However, we reverse Thompson's conviction upon the offenses of giving an officer a false name and resisting arrest. And, finally, we reverse the trial court's imposition of court costs, the misdemeanor fine, and the jail fees upon Thompson.
For the foregoing reasons, the judgment and sentence of imprisonment of the Fulton Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
MAZE, JUDGE, CONCURS.
SMALLWOOD, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
SMALLWOOD, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I concur, but dissent as to one issue.
I dissent as to the majority's opinion regarding the imposition of jail fees as I do not believe the circumstances rise to the level of palpable error. The Appellant admits that the matter was unpreserved at the trial level. As Judge Maze stated in Evans v. Commonwealth, 2016-CA-001327-MR, 2018 WL 1021422 (Ky. App. February 23, 2018), the Court may review an unpreserved error and grant relief when "'manifest injustice has resulted from the error.' RCr 10.26." (Footnote omitted.) Such injustice occurs only when the alleged error seriously affected the "fairness, integrity or public reputation of the judicial proceedings." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006) (citation omitted), and Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
In Brewer, supra, the Court stated:
For an error to be palpable, it must be "easily perceptible, plain, obvious and readily noticeable." A palpable error "must involve prejudice more egregious than that occurring in reversible error[.]" A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.Id. at 349 (footnote omitted).
In Martin, supra, the Court sharpened the language to require a showing that the probability "of a different result or error so fundamental as to threaten [an appellant's] entitlement to due process of law" must exist. 207 S.W.3d at 3.
It appears that the trial court held a hearing and found the appellant to be "able-bodied" and imposed jail fines pursuant to KRS 441.265(1). The statute requires the imposition of jail fines unless the Court should decline to do so for "good cause shown." The statute does not eliminate the imposition of jail fines because the court had otherwise found the appellant to be indigent or a poor person.
The appellant was given his hearing and, absent objection to the court's finding, there is no palpable error. While, as stated in the majority opinion, "it is obvious good cause existed for not imposing jail fines upon Thompson," the existence of these facts is not a sufficient basis for this Court to review the error in the absence of an objection. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Todd Henning
Assistant Attorney General
Frankfort, Kentucky