JERRY WEST V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1415-MR JERRY WEST APPELLANT v. APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE JOSEPH ROARK, JUDGE ACTION NO. 23-CR-00727 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, MOYNAHAN, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Jerry West appeals from a Final Judgment and Sentence of Imprisonment for custodial interference, entered by the McCracken Circuit Court on July 22, 2024. The Commonwealth requests that we dismiss the appeal under the Fugitive Disentitlement Doctrine, as a consequence of West absconding from the halfway house where he was scheduled to report, before serving his sentence. We have determined appellate review is proper, and we affirm West’s conviction.

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-2- BACKGROUND The record reflects that West was fifty-three years old when he was indicted in 2023. West knew the juvenile, S.D., through his mother. S.D. was born in 2008. S.D. was adopted by Mike D., her biological great-grandfather, and his wife Judy, who lived in Indiana. West is the son of Judy. Before her adoption, S.D. had been in foster care in Indiana. S.D.’s biological mother had two other daughters, and these half-sisters of S.D. were later adopted by Elizabeth New and her husband. The News lived in McCracken County, Kentucky. Mike D. passed away during the Covid-19 pandemic, and Judy died in 2022. S.D. thereafter went to live with her Aunt Pam, a sister to Judy, who lived in Indianapolis. Pam expressed doubts about being able to take care of S.D. When S.D. stated a desire to live with her half-sisters in Kentucky, both Elizabeth and Pam agreed. S.D. moved in with the News in McCracken County in November of 2022. On December 13, 2022, Elizabeth sought custody through a dependency, neglect and abuse petition in the McCracken Family Court on the basis that S.D. was left dependent by her parents’ deaths. Temporary custody was granted on December 20, 2022, following a temporary removal hearing. The McCracken Family Court awarded permanent custody to Elizabeth in an order entered on January 23, 2023. The Court also closed the case on that date.

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-3- S.D. had known West for about three years. After moving to Kentucky, she stayed in touch with West, who was living in Indiana. Elizabeth and her husband noticed S.D. being secretive in her phone communications with West, and an argument ensued regarding her behavior. On April 16, 2023, West drove to Paducah, whereupon S.D. snuck out of the house through her bedroom window at approximately 1:00 a.m. and got into West’s vehicle parked on a side street. No one in the family realized S.D. was gone until later that morning. West drove S.D. out of the county and into Illinois.1 While driving, West crashed into a concrete divider on Interstate 57 near Salem, Illinois. S.D. had been asleep, and the collision resulted in her head hitting the windshield which rendered her unconscious. When she regained consciousness, they resumed driving. But the front end of the car was badly damaged and the front driver’s side tire had come off the rim. At some point, they sought assistance, and a couple in another car offered to help. West and S.D. followed the couple to their house but decided to leave and resumed driving the damaged vehicle. After they left, the couple called the police to report a vehicle with heavy front-end damage, driving on a tire rim. Because the vehicle was making gouge marks in the highway, local deputies were able to determine where the vehicle had been and found West and S.D. parked near some semi-trucks at a rest area on the interstate. The police took 1 McCracken County borders the State of Illinois.

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-4- S.D. into protective custody and detained West. The News realized in the early morning that S.D. was not at home and called the police. Upon receiving word from the McCracken County Sheriff’s Office that S.D. had already been located, Elizabeth drove to Salem, Illinois, and returned her to McCracken County. On September 15, 2023, West was indicted by the McCracken County Grand Jury for one count of custodial interference and two counts of violating a foreign protective order. The Commonwealth moved to dismiss the latter counts which the trial court granted on November 15, 2023. West was tried by jury in the McCracken Circuit Court on May 15, 2024. The jury returned a verdict of guilty of custodial interference but was unable to reach a unanimous agreement on his sentence. The trial court granted a mistrial as to the sentencing phase. Upon retrial for the purpose of sentencing, the jury recommended a sentence of three-years in prison. The court entered the final judgment in accordance with the jury verdicts on July 22, 2024, which West now appeals. Further facts will be developed as needed. ANALYSIS As a preliminary matter, we will address first the Commonwealth’s argument that we should dismiss the appeal entirely by applying the Fugitive Disentitlement Doctrine. The underlying facts alleged are that West was required to report to serve his sentence with a halfway house program on or around January

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-5- 16, 2025, but he did not report as directed. According to an affidavit and accompanying records submitted on appeal by the Commonwealth from a Department of Corrections employee, a Violation of Supervision Report was filed by the Division of Probation and Parole for absconding. Thereafter, the Kentucky Parole Board issued a violation warrant which remains unserved, and West’s whereabouts were unknown at the time of the affidavit. Commonwealth’s Brief at Appendix 1. As explained by our Supreme Court, “[t]he Fugitive Disentitlement Doctrine (FDD) recognizes the principle that when a criminal defendant absconds and remains a fugitive during his or her appellate process, dismissal of the appeal is an appropriate sanction.” Commonwealth v. Hess, 628 S.W.3d 56, 57 (Ky. 2021). The United States Supreme Court has endorsed the doctrine. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). Specifically, the Court held: No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

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-6- Id. at 366. Nevertheless, because Section 115 of the Kentucky Constitution provides every citizen the guaranteed right to one appeal,2 the doctrine is inapplicable to the initial appeal of a criminal conviction which has not been waived by a guilty plea or otherwise. Clay v. Commonwealth, 685 S.W.3d 352, 356 (Ky. App. 2024). See also Commonwealth v. Hess, 628 S.W.3d 56, 59–60 (Ky. 2021) (“Ky. Const. § 115 confers to a defendant a single, direct appeal as a matter of right.”). Based on our review, the decision by this Court in Clay is controlling and we shall address the merits of the appeal. West first argues that there was insufficient evidence to support the guilty verdict for custodial interference. He claims the Commonwealth failed to show that S.D. was properly in the legal custody of Elizabeth and failed to establish that he knew he had no legal right to remove S.D. from the News’ residence. West moved for directed verdict at the close of the Commonwealth’s case. In Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), the Kentucky Supreme Court delineated the standard for addressing a criminal defendant’s motion for directed verdict: 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 2 Section 115 of the Kentucky Constitution provides that, other than limited exceptions not germane to this appeal, “[i]n all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”

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-7- 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. On appeal, “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.” Id. The statutory offense of custodial interference in Kentucky Revised Statutes (KRS) 509.070 provides in full: (1) A person is guilty of custodial interference when, knowing that he has no legal right to do so, he takes, entices or keeps from lawful custody any mentally disabled or other person entrusted by authority of law to the custody of another person or to an institution. (2) It is a defense to custodial interference that the person taken from lawful custody was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest. (3) Custodial interference is a Class D felony unless the person taken from lawful custody is returned voluntarily by the defendant. “Custodial interference statutes are intended to protect any custodian from deprivation of his or her rights.” Karsner v. Commonwealth, 582 S.W.3d 51, 54 (Ky. App. 2018). “KRS 509.070(1) requires that the defendant knowingly engage

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-8- in overt conduct that prevents a lawful custodian from exercising his or her rights to custody.” Id. The statute protects a minor such as S.D. when “entrusted by authority of law to the custody of another person or to an institution.” KRS 509.070(1). West argues that the McCracken Family Court did not have jurisdiction over S.D., therefore the Commonwealth failed to establish that Elizabeth had custody by authority of law, and directed verdict was proper as to this statutory offense. Effectively, West is collaterally attacking the January 23, 2023, order entered by the family court awarding Elizabeth custody of S.D. West argues that the order did not comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as provided for in KRS 403.800 to KRS 403.880. A judgment is presumed valid and cannot be collaterally attacked unless it appears from the face of the record that the judgment is void. Spicer v. Spicer, 236 S.W.2d 474, 476 (Ky. 1951). “The only situation in which a collateral attack upon the validity of a court order during the prosecution . . . [for] violation of that order is appropriate is when the issuing court lacked subject matter or personal jurisdiction.” Gutierrez v. Commonwealth, 163 S.W.3d 439, 441 (Ky. 2005). Thus, the McCracken Family Court’s January 23, 2023, order is subject to review solely on the question of jurisdiction. [A] judgment is not void if the court rendering it had jurisdiction of the subject-matter and of the person of the

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-9- defendant against whom it was rendered. If those two facts appear, the judgment rendered will not be void so as to subject it to collateral attack as being void, howsoever erroneous it may be. Commonwealth v. Miniard, 407, 99 S.W.2d 166, 167 (Ky. 1936). Whether a court acts within its jurisdiction is a question of law; therefore, our review is de novo. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). The Commonwealth’s evidence as to Elizabeth’s lawful custody of S.D. consisted of the McCracken Family Court orders, certified by the circuit court clerk, and introduced through the testimony of Elizabeth. West’s jurisdictional challenge focuses on the limited time S.D. was present in Kentucky and the fact that all her previous contact was with Indiana. West alleges that the family court orders are not facially valid because they use boilerplate language but do not provide the facts to support the assumption of jurisdiction over S.D. pursuant to the UCCJEA. As noted, the UCCJEA is codified in Kentucky in KRS 403.800 through 403.880. The statutes apply to custody proceedings “in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence[.]” KRS 403.800(4). The family court had temporary emergency jurisdiction under the UCCJEA in Kentucky as a consequence of no

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-10- one having legal custody of S.D. after her parents’ deaths. KRS 403.828(1) provides, in part, “[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned . . . .” Unlike the residency requirements to establish home-state jurisdiction under the UCCJEA, there is no minimum time period to establish residency found in the statute for entry of a protective order encompassing temporary custody under the UCCJEA. Baum v. Aldava, 713 S.W.3d 96, 110 (Ky. 2025). Our Supreme Court has also explained the duration of temporary emergency custody: KRS 403.828 provides for emergency jurisdiction in the event of an emergency to protect the child or parent of the child. KRS 403.828(1). Although described as temporary, jurisdiction under this section is not subject to a fixed period of expiration, or even to a more subjective reasonable period of time standard. Rather, jurisdiction obtained through KRS 403.828 continues until an order is received from a court of a state having a basis for jurisdiction under another provision of the UCCJEA. KRS 403.828(2). If no other state can assert another basis for jurisdiction, “a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.” Id. Aldava v. Johnson, 686 S.W.3d 205, 213–14 (Ky. 2024). The family court’s jurisdiction was also established under KRS 610.010(2)(d) which, in pertinent part, gives a family court exclusive jurisdiction over any child under eighteen who is living or found in the county and is dependent, neglected, or abused. The McCracken Family Court made findings of dependency as to S.D. at both the

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-11- temporary removal hearing and in the order of permanent custody, and as such, proper jurisdictional findings appear on the face of the family court records introduced into evidence below. Based on our review of the record, the McCracken Family Court had temporary emergency jurisdiction to enter a lawful order of custody, and the order was effective at the time of the events for which West was prosecuted. Custody was thus given to Elizabeth by authority of law, and the trial court correctly denied the motion for directed verdict. Next, West argues the Commonwealth did not establish that he knew he was acting without a legal right. The knowledge required to support a conviction for interference with custody is simply knowledge that a person has no legal right to take a person from the lawful custody of another. The Commonwealth first adduced evidence that West had no part in the custody proceedings involving S.D. Elizabeth also testified that only she and her husband had legal custody of S.D. She also testified that she had not given West permission to take S.D. from her residence and that there were no visitation arrangements for West. S.D. also testified that she did not have permission to leave, and she knew West had not asked for permission. She agreed that West did not have custody or visitation rights with her. In addition to the direct statements of S.D.

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-12- and her guardian, the jury could infer from the totality of West’s trip in the middle of the night, his parking his car away from the house, and his decision to continue to drive a badly damaged vehicle, that he was attempting to conceal his actions regarding S.D. Finally, the police lieutenant from Illinois who interviewed West testified that West admitted that he did not have custody of S.D. On appeal, we review whether it would be clearly unreasonable for a jury to find guilt; only then is the defendant entitled to a directed verdict of acquittal. In this case, the jury believed from the evidence that West knew he had no legal right to take S.D. from the home of her custodian, and we cannot say from the foregoing that this was an unreasonable conclusion. Finally, counsel for West argues that it was error for the Commonwealth to introduce details of the car accident after he wrongfully took S.D. from the New’s residence. Since there was no objection to this evidence at trial, West requests review pursuant to the palpable error rule of Kentucky Rules of Criminal Procedure (RCr) 10.26. For an error to be palpable, and thus reversible, it must result in a manifest injustice. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Relief will only be granted from a palpable error if a “‘substantial possibility exists that the result would have been different’ absent the error.’” Butcher v. Commonwealth, 96 S.W.3d 3, 11 (Ky. 2002) (quoting Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996)).

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-13- Based on our review of the evidence regarding the accident, we find no manifest injustice from its admission as there was other substantial evidence presented to convict West of custodial interference. Likewise, the accident evidence was not unduly prejudicial or inflammatory, nor can we conclude that the result would have been different if this evidence had been excluded. At best, any error in its admission was harmless. For the foregoing reasons, we affirm the Final Judgment and Sentence of Imprisonment entered by the McCracken Circuit Court on July 22, 2024. ALL CONCUR. BRIEFS FOR APPELLANT: Jennifer E. Hubbard Assistant Public Advocate Dept. of Public Advocacy Louisville, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky James Havey Assistant Solicitor General Office of the Solicitor General Frankfort, Kentucky

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