A revolver is balanced on its handle and barrel on a wood surface. The handle is wooden with a scorpion burnished into the wood. The rest of the gun is gray metal.

15 Mar Guns Are Ablazing! The Court of Appeals Round Up

Despite our special Supremes edition of the Round Up yesterday, this was a slow week at the Kentucky Court of Appeals. (Have the judges gone on Spring Break already?) Despite the low numbers, the only two Family Court appeals still deserve a look.

Gordon Smith v. Aimee Smith, 2023-CA-1005

In an appeal from a Jefferson County Family Court DVO, Mr. Smith appealed the issue of whether a DVO could restrict his ability to possess a firearm. The appeal is based on the plain language of the Second Amendment, and, perhaps more importantly, the US Supreme Court’s decision in the Bruen case. Con Law junkies are generally aware of the trend in expanding Second Amendment rights.1 However, Judge Cetrulo’s opinion tells us that the answer to this question in DVO cases will need to wait until another day. Specifically, the Court found that Mr. Smith failed to adequately preserve the issue in the DVO case. The Opinion describes the interchange as follows:

“Gordon’s counsel objected to the firearms restriction because Gordon had testified that he did not have a firearm when he went to Aimée’s workplace, and he used the firearms only for home protection. The family court stated that it was bound by federal law; therefore, the court kept the firearms restriction in the DVO. Gordon did not object to the use of the federal law, or contest its constitutionality, nor did he mention KRS 403.740(1)(c) or the EPO’s firearms restriction.  Likewise, Gordon did not invoke the Second Amendment or Fourteenth Amendment.”

pg 4-5 of the Opinion

The decision contains some discussion of the fact that the Kentucky Supreme Court has ruled that a party must make timely objections and that those objections must be specific to indicate to the trial court what he is objecting to. Further, any party making an objection MUST INSIST that the Court rule on the objection. (Note: this can put trial lawyers in a pickle as some judges don’t like objections to begin with, and they certainly don’t want lawyers getting mouthy about the Court ruling on the objection). The Round Up looks to see this case appealed to the Kentucky Supreme Court or, in the alternative, the same issue to be taken up in a future case (assuming that it is “properly preserved.”) 

Unreported. http://opinions.kycourts.net/COA/2023-CA-001005.PDF

E.J.F. v. A.J.E., a child, Commonwealth of Kentucky, CHFS, and G.D.E., father, 2023-CA-0602

This is an interesting case of a Termination of Parental Rights case that originated in Christian County Circuit Court. As regular readers of the Round Up know, TPR appeals can be predictable. At first blush, this Opinion by Judge McNeil appears to follow a similar plot line: Bad behavior by Parent; the Cabinet offers a multitude of services; Parent not willing to take advantage of the help offered by the CHFS; Parent’s rights are terminated. This case follows that same script and, like most, was affirmed by the Court of Appeals. 

Notwithstanding the result, there are some interesting issues raised by the mother’s counsel, the Hon. Brandi Jones of Oak Grove. Counsel for the mother attacked whether an assessment should have been admitted by the trial court. The so called “CATS” report (Comprehensive Assessment and Training Services) contained expert opinions and was admitted under the business records exception to the hearsay rule. The Circuit Court relied upon and cited the CATS report in its Order. Even with these violations of the Rules of Evidence, the Court of Appeals called the error harmless and nonprejudicial error. Judge McNeil states there was other admissible evidence on this issue; thus, the mistake could be overlooked. (Editors’ note: The Round Up is not impressed with this portion of the Opinion.) 

The other issue relates to whether the mother abandoned the child for a period of “not less than ninety days,” a statutory factor. The proof at trial was that the mother was in Tennessee for a period of “maybe three months.” Counsel argued that the only proof offered was insufficient to prove 90 days by clear and convincing evidence as required in TPR cases. Despite the strength of this argument, the Court of Appeals was unpersuaded. 

Unreported. http://opinions.kycourts.net/COA/2023-CA-000602.PDF

And last, but not least, the criminal tally. It was another shutout for criminal defendants at the Kentucky Court of Appeals. The final score was Prosecutors 9, Defendants 0.  

For all the students of the classics out there, Happy Ides of March! Remember you don’t actually have to personally stab a person to still be found guilty of conspiracy. And looks like the Court of Appeals will uphold that conviction no matter what.

  1. For example, this week a local judge ruled that convicted felons have a constitutional right to possess firearms. See today’s WDRB article on the ruling, linked here. ↩︎