VAN BERG (TORI LYNN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 1, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002426-MR
TORI LYNN VAN BERG
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN, III, JUDGE
ACTION NO. 06-CR-00429
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, KELLER, AND MOORE, JUDGES.
MOORE, JUDGE: Tori Lynn Van Berg appeals the Daviess Circuit Court’s
judgment convicting her of first-degree trafficking in a controlled substance and
first-degree possession of a controlled substance. She was sentenced to six years
of imprisonment for the trafficking conviction and three years of imprisonment for
the possession conviction, to be served consecutively. After a careful review of the
record, we affirm because the double jeopardy bar to retrial is inapplicable; there
was no palpable error in failing to instruct the jury on entrapment; and the
prosecutor’s closing arguments did not amount to palpable error.
I. FACTUAL AND PROCEDURAL BACKGROUND
Van Berg was indicted on two charges of first-degree trafficking in a
controlled substance, methamphetamine. During her initial trial, the
Commonwealth played part of a taped conversation between Van Berg and a
confidential informant (CI), before defense counsel objected to the introduction of
the tape on the basis that neither counsel nor Van Berg had ever heard the tape.
The trial recessed for the day, without any ruling on the defense’s objection.
According to Van Berg’s appellate brief, after court that day, defense counsel
and the prosecutor . . . examined all the tapes at the
prosecutor’s office and determined that the tape in
question was not on the cassettes that the defense had
been provided, but rather on a disk. The prosecutor,
unable to play the disk on his recorder, made several
unsuccessful attempts to burn a new copy that would play
on the prosecutor’s recorder. After receiving instructions
from the prosecutor on how to play those disks under a
computer format, defense counsel took those disks with
him, but was unable to play any of them. The next
morning, . . . defense counsel was given a cassette copy
of the tape, but was only able to review about half of it
and not the “good parts” before [trial commenced that
day].
Defense counsel then moved for a mistrial or, in the alternative, to
suppress the tape. In doing so, defense counsel informed the court that it was not
the Commonwealth’s fault that the defense had not heard the tape recording prior
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to the start of trial. The Commonwealth opposed the suppression motion, arguing
that the CI had been in custody for more than a year and she was testifying from
memory, and the defense’s strategy would be to attack her credibility. The
Commonwealth contended that without the tape to back up the CI’s testimony, the
Commonwealth would be “crippled.” The Commonwealth also asserted that
because defense counsel had implied during his questioning of other witnesses that
the CI had turned the tape recorder on and off, the Commonwealth needed to play
the tapes in their entirety to demonstrate there was “no subterfuge.” The
Commonwealth urged the trial court to deny the defense’s motion to suppress and
grant the defense’s motion for a mistrial on the ground that with a mistrial, the
Commonwealth would have a fair trial.
The trial court denied Van Berg’s motion to suppress the tape and
granted Van Berg’s motion for a mistrial, noting that the parties agreed that neither
party was at fault regarding the issue of the defense’s having not heard the tape
recording before trial.
A second trial was initiated, and the jury ultimately found Van Berg
guilty of first-degree trafficking in a controlled substance and first-degree
possession of a controlled substance. Van Berg was sentenced to six years of
imprisonment for the trafficking conviction and three years of imprisonment for
the possession conviction, and those sentences were ordered to be served
consecutively.
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Van Berg now appeals, contending that: (a) the trial court violated
her rights under the Double Jeopardy Clauses of the United States and Kentucky
Constitutions when it denied her motion to suppress and granted a mistrial; (b) the
trial court violated her due process rights when it failed to instruct the jury on an
entrapment defense based on the evidence; and (c) the prosecutor violated her due
process rights during the penalty phase of closing arguments.
II. ANALYSIS
A. CLAIM REGARDING DOUBLE JEOPARDY VIOLATION
Van Berg first alleges that the trial court violated her rights against
double jeopardy under the United States and Kentucky Constitutions when it
denied her motion to suppress the tape recording and granted her alternative
motion for a mistrial despite there having been no manifest necessity for a mistrial.
Van Berg contends there was no manifest necessity for a mistrial because the tape
recording of the conversation between Van Berg and the CI was cumulative
evidence and the trial court knew when it granted the mistrial that the defense had
not had an opportunity to review the entire tape.
Under both the United States and Kentucky Constitutions, jeopardy
attaches once a jury is impaneled and sworn. See Cardine v. Commonwealth, 283
S.W.3d 641, 646-47 (Ky. 2009). Thus, both constitutions “guarantee that no
person shall be tried twice for the same offense.” Commonwealth v. Scott, 12
S.W.3d 682, 684 (Ky. 2000). “Once jeopardy attaches, prosecution of a defendant
before a jury other than the original jury or contemporaneously-impaneled
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alternates is barred unless 1) there is a ‘manifest necessity’ for a mistrial or 2) the
defendant either requests or consents to a mistrial.” Cardine, 283 S.W.3d at 647
(internal quotation marks omitted). “Manifest necessity has been described as an
‘urgent or real necessity.’ The propriety of granting a mistrial is determined on a
case by case basis.” Scott, 12 S.W.3d at 684 (internal quotation marks and
footnote omitted).
Van Berg cites Cardine in support of her argument that the trial court
should not have granted a mistrial, but should have granted her motion to suppress
the tape recording instead. However, Cardine is distinguishable from the present
case. In Cardine, the trial court sua sponte granted a mistrial after the
Commonwealth proffered “late-discovered cumulative evidence” in the form of a
witness. Cardine, 283 S.W.3d at 650. The Kentucky Supreme Court held that the
trial court in Cardine’s case erred in granting a mistrial, reasoning that “[i]t was
within the trial court’s discretion to exclude [the] witness without undue prejudice
to the Commonwealth if it did not want to grant a continuance. Having these
viable options precludes a finding of manifest necessity, and it was thus an abuse
of discretion to grant the mistrial.” Cardine, 283 S.W.3d at 650.
Unlike the situation in Cardine, however, in the present case, Van
Berg moved for the mistrial herself as an alternative motion to her motion to
suppress the tape recording. In Cardine, the mistrial was entered on the trial
court’s own motion. As the Cardine Court noted, “[o]nce jeopardy attaches,
prosecution of a defendant before a jury other than the original jury or
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contemporaneously-impaneled alternates is barred unless 1) there is a ‘manifest
necessity’ for a mistrial or 2) the defendant either requests or consents to a
mistrial.” Cardine, 283 S.W.3d at 647 (internal quotation marks omitted)
(emphasis added). Therefore, in Cardine, the Supreme Court analyzed whether
there was a manifest necessity for a mistrial because the mistrial was entered sua
sponte by the trial court. In the present case, there is no need to determine whether
there was a manifest necessity for a mistrial because Van Berg requested the
mistrial herself, even though she requested it as an alternative to suppression. Van
Berg cannot complain now on appeal that the circuit court gave her the relief she
requested. Thus, the circuit court did not err in granting Van Berg’s motion for a
mistrial.
However, even if a criminal defendant successfully moves for a
mistrial, under the United States Constitution, she may still “invoke the bar of
double jeopardy in a second effort to try” her if “the conduct giving rise to the
successful motion for a mistrial was intended to provoke the defendant into
moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083,
2091, 72 L.Ed.2d 416 (1982); see also Stamps v. Commonwealth, 648 S.W.2d 868,
869 (Ky. 1983). Further, under the Kentucky Constitution, a “party seeking to
prevent his retrial upon double jeopardy grounds must show that the conduct
giving rise to the order of mistrial was precipitated by bad faith, overreaching or
some other fundamentally unfair action of the prosecutor or the court.” Terry v.
Commonwealth, 153 S.W.3d 794, 804 (Ky. 2005) (quoting Tinsley v. Jackson, 771
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S.W.2d 331, 332 (Ky. 1989)). In the present case, defense counsel admitted to the
trial court that the Commonwealth was not at fault, and the trial court noted that
the parties agreed that neither party was at fault. Therefore, the double jeopardy
bar to retrial is inapplicable in this case.
B. CLAIM REGARDING ENTRAPMENT DEFENSE
Van Berg next asserts that the trial court violated her due process
rights under the United States and Kentucky Constitutions when it failed to instruct
the jury on an entrapment defense, despite evidence in the case that she alleges
satisfied the elements for a defense of entrapment. Van Berg acknowledges that
this claim was not preserved for appellate review, but she asks this Court to review
it for palpable error.
Pursuant to RCr1 9.54(2),
[n]o party may assign as error the giving or the failure to
give an instruction unless the party’s position has been
fairly and adequately presented to the trial judge by an
offered instruction or by motion, or unless the party
makes objection before the court instructs the jury,
stating specifically the matter to which the party objects
and the ground or grounds of the objection.
Because Van Berg neither proffered nor moved for an entrapment jury instruction,
this issue is unpreserved for appellate review. RCr 9.54(2); see also Taylor v.
Commonwealth, 995 S.W.2d 355, 362 (Ky. 1999).
Regardless, even if we were to review this claim for palpable error,
the claim lacks merit. Pursuant to RCr 10.26,
1
Kentucky Rule(s) of Criminal Procedure.
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[a] palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
Regarding the defense of entrapment, the Kentucky Supreme Court
has held that
[e]ntrapment is a defense to a crime available to a
defendant if [the defendant] was induced or encouraged
to engage in [the criminal] conduct by a public servant
seeking to obtain evidence against him for the purpose of
criminal prosecution, and the defendant was not
otherwise disposed to engage in such conduct at the time
of the inducement. Entitlement to the defense requires
satisfaction of both prongs of the test, inducement and
absence of predisposition.
Morrow v. Commonwealth, 286 S.W.3d 206, 209 (Ky. 2009) (internal quotation
marks and citation omitted).
The statute setting forth the defense of entrapment is KRS 505.010,
which provides:
(1) A person is not guilty of an offense arising out of
proscribed conduct when:
(a) He was induced or encouraged to engage
in that conduct by a public servant or by a
person acting in cooperation with a public
servant seeking to obtain evidence against
him for the purpose of criminal prosecution;
and
(b) At the time of the inducement or
encouragement, he was not otherwise
disposed to engage in such conduct.
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(2) The relief afforded by subsection (1) is unavailable
when:
(a) The public servant or the person acting in
cooperation with a public servant merely
affords the defendant an opportunity to
commit an offense; or
(b) The offense charged has physical injury
or the threat of physical injury as one (1) of
its elements and the prosecution is based on
conduct causing or threatening such injury
to a person other than the person
perpetrating the entrapment.
(3) The relief provided a defendant by subsection (1) is a
defense.
If the only action by the CI, on behalf of the Sheriff’s Department,
was to “make a purchase from one known or suspected to be dealing in the
product,” this does not constitute entrapment. Shanks v. Commonwealth, 463
S.W.2d 312, 314 (Ky. 1971).
The cases generally support the rule that the defense of
entrapment cannot successfully be sustained if the
accused has previously been engaged in a course of
similar crimes or if he has previously formed a design to
commit the crime with which he is charged or similar
crimes or is willing to commit the crime as shown by
ready compliance.
Shanks, 463 S.W.2d at 314. “Predisposition, the principal element in the defense
of entrapment, focuses upon whether the defendant was an ‘unwary innocent’ or,
instead, an ‘unwary criminal’ who readily availed himself of the opportunity to
perpetrate the crime.” Morrow, 286 S.W.3d at 210 (internal quotation marks
omitted).
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Van Berg contends that she had no prior history of drug offenses and
that the CI induced her into transferring methamphetamines to the CI. She alleges
that the CI sought “to buy a substantial quantity of methamphetamines from [Van
Berg], who repeatedly refused to sell the informant methamphetamines, but on two
occasions transferred methamphetamine to the informant.” (Capitalization
changed and emphasis removed). Van Berg asserts that, at the time of the
inducements, she “was not otherwise disposed to engage in the transfer.”
(Capitalization changed).
During oral arguments in this matter, a question was raised
concerning whether there had been any prior contact between the CI and Van Berg
before the CI went to the jewelry store where Van Berg worked, inquiring about
purchasing methamphetamine from Van Berg. Specifically, during oral
arguments, Van Berg’s counsel claimed that the CI and Van Berg had no
relationship prior to the first transfer of methamphetamine. However, the
Commonwealth was resolute that there had been a telephone conversation between
Van Berg and the CI prior to the first transfer of methamphetamine, to which Van
Berg’s counsel replied that he had never alleged there was no telephone
conversation, only that the CI and Van Berg had no relationship. We reviewed the
trial tapes, and note that the following exchange occurred between the prosecutor
and the CI during the CI’s trial testimony:
Prosecutor: Now, with regards to Ms. Van Berg, whose
idea was it? How did her name come up between you
and the Sheriff’s Department?
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CI: Umm, somebody that had worked with them told me
that they would like to have Tori, and . . . Tori had
contacted me in the past. I didn’t really know her at that
time. . . . Anyway, that person had suggested that I bring
Tori’s name up to them, and I did.
Prosecutor: Her name, did it come from you, or did it
come from the Sheriff’s Department?
CI: No, it came from me.
Prosecutor: Okay. Now, in January of 2006, had you
ever met Tori Van Berg?
CI: No, I had talked to her on the phone a couple of
times, but I did not know her.
Prosecutor: What was the nature of those phone
conversations? Was this right in January of ’06, or are
we talking about other times?
CI: No, this was before I had been arrested. . . . She had
called me, gotten my number from somebody and had
called me requesting some meth.
(Video Record 08/01/07, 10:40:05 - 10:41:10).
In the present case, the CI testified at trial, and the tape recordings of
the CI’s interactions with Van Berg2 were also presented as evidence during trial.
The CI testified that the Daviess County Sheriff’s Department provided a
transmitter and a tape recorder to the CI for meetings she had with Van Berg on
different occasions. On the first such occasion, the CI went to the jewelry store
where Van Berg worked and inquired about buying some methamphetamine. Van
Berg did not have any with her, so she scheduled another meeting for later that day
2
These audiotape recordings were largely inaudible on the videotape recording we reviewed of
the jury trial.
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to give the CI some of the drug. When they met later that day, Van Berg
transferred some methamphetamine to the CI.
On the second occasion, which occurred approximately one and a half
weeks later, the CI and Van Berg met at a bowling alley. Van Berg asked the CI if
the CI could get a tank of anhydrous ammonia for Van Berg’s friend. The CI told
Van Berg that she did not want money for the exchange, but instead wanted Van
Berg to give her methamphetamine in exchange for the tank of anhydrous
ammonia. A day later they met again, and Van Berg transferred more
methamphetamine to the CI. During that meeting, they talked more about the
proposed transfer of the tank. The CI told Van Berg that she would want half an
ounce of methamphetamine in exchange for the tank of anhydrous ammonia. Van
Berg told the CI that she would inform her friend of this proposal.
Based on the evidence presented at trial, Van Berg was readily
compliant with the CI’s first request for methamphetamine. Van Berg may have
been reluctant to sell the drug to the CI, but she was not reluctant to transfer the
drug. Additionally, Van Berg herself initiated the second discussion regarding the
exchange of a tank of anhydrous ammonia for the drug. The Daviess County
Sheriff’s Department, through the CI, merely provided Van Berg an opportunity to
transfer methamphetamines, and Van Berg took advantage of that opportunity.
Therefore, the trial court did not commit palpable error when it failed to instruct
the jury on the defense of entrapment.
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C. CLAIM REGARDING PROSECUTORIAL MISCONDUCT DURING
CLOSING ARGUMENTS
Finally, Van Berg contends that the prosecutor engaged in misconduct
during penalty phase closing arguments, resulting in violations of her due process
rights under the United States and Kentucky Constitutions. Specifically, she
alleges that the prosecutor engaged in misconduct when he improperly used a
“send a message” argument during the closing arguments of the sentencing phase.
Van Berg acknowledges that this claim was not preserved for appellate review, but
she asks us to review this claim for palpable error.
The United States Court of Appeals for the Sixth Circuit has stated:
For the prosecutor’s misconduct to violate the
defendant’s due process rights, it is not enough that the
prosecutors’ remarks were undesirable or even
universally condemned; instead those comments must so
infect the trial with unfairness as to make the resulting
conviction a denial of due process. The touchstone of
due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability
of the prosecutor, because the aim of due process is not
punishment of society for the misdeeds of the prosecutor
but avoidance of an unfair trial to the accused. To
succeed on this claim, the petitioner must demonstrate
that the prosecutor’s conduct was both improper and
flagrant.
Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008) (internal quotation marks,
brackets, and citations omitted).
During the penalty phase’s closing arguments in the present case, the
prosecutor stated, inter alia, as follows:
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What I do . . . is remind the jury that you all are
spokespersons for the community. And as such your
sentence guides not only myself as a prosecutor in future
cases, but also guides the actions of these law
enforcement officers. And what I simply say is if you
believe that these officers need to be working on other
things, doing other stuff, and it’s not that big of a
concern, tell me that. And you tell me that by giving her
the minimum and running them concurrently. If you
think this is a serious problem, they need to continue
aggressively seeking these individuals out, enforcing the
law, tell me that. Tell them that. You do that in your
verdict.
Then, near the end of his closing argument, the prosecutor noted: “We accept
whatever verdict that you issue in this regard, and we will take that message with
us.”
Regarding “send a message” closing arguments, the Kentucky
Supreme Court has held that
even at the penalty phase, the “send a message” argument
shall be channeled down the narrow avenue of
deterrence. Any effort by the prosecutor in his closing
argument to shame jurors or attempt to put community
pressure on jurors’ decisions is strictly prohibited.
Prosecutors may not argue that a lighter sentence will
“send a message” to the community which will hold the
jurors accountable or in a bad light.
Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009). In Cantrell, the
appellant’s argument was preserved for appellate review, so the issue was
reviewed under a reversible error standard, rather than for palpable error. This
Court has also noted that “the Commonwealth is not at liberty to place upon the
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jury the burden of doing what is necessary to protect the community.” McMahan
v. Commonwealth, 242 S.W.3d 348, 351 (Ky. App. 2007).
In Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), the
Kentucky Supreme Court found that the Commonwealth’s closing argument asking
the jury to “‘send a message’ to the community was improper,” but that it did not
amount to palpable error. Brewer, 206 S.W.3d at 351.
In Young v. Commonwealth, 25 S.W.3d 66 (Ky. 2000), the Kentucky
Supreme Court “examine[d] the criteria relevant for palpable error review of
alleged instances of prosecutorial misconduct in sentencing phase closing
arguments.” Young, 25 S.W.3d at 74. The Court held as follows:
An appellate court’s review of alleged error to determine
whether it resulted in “manifest injustice” necessarily
must begin with an examination of both the amount of
punishment fixed by the verdict and the weight of
evidence supporting that punishment. Other relevant
factors, however, include whether the Commonwealth’s
statements are supported by facts in the record and
whether the allegedly improper statements appeared to
rebut arguments raised by defense counsel. Finally, we
must always consider these closing arguments “as a
whole” and keep in mind the wide latitude we allow
parties during closing arguments.
Young, 25 S.W.3d at 74-75 (footnotes omitted). The Court in Young also noted
“that Kentucky’s sentencing procedures do not give juries absolute sentencing
authority. KRS 532.070(1) leaves the final determination regarding sentencing up
to the trial court.” Young, 25 S.W.3d at 75. The Court held that Kentucky’s
statutory scheme “does not insulate all sentencing phase errors from palpable error
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review, [but the Court] believe[s] Kentucky’s sentencing procedures provide an
additional layer of protection from prejudice which . . . should [be] consider[ed] in
the context of RCr 10.26 review.” Young, 25 S.W.3d at 75.
In the present case, Van Berg acknowledges in her appellate brief that
the maximum sentence was not imposed on either of the counts against her.
Rather, she was sentenced to six years of imprisonment for the trafficking
conviction, which was one year above the minimum sentence for that crime,3 and
she was sentenced to three years of imprisonment for the possession conviction,
which was two years above the minimum sentence for that crime.4 Both sentences
were ordered to be served consecutively, although she contends that the circuit
court should have exercised its discretion and ordered them to be served
concurrently. Pursuant to KRS 532.110, the trial court had the discretion to choose
to run the sentences concurrently or consecutively. Considering Van Berg’s
willingness to not only transfer methamphetamine to the CI, but also to facilitate
the production of methamphetamine by inquiring about whether the CI could
obtain a tank of anhydrous ammonia for Van Berg’s friend to make the drug, we
find that the court did not err in exercising its discretion to run Van Berg’s
sentences consecutively for a total of nine years.
As for the other factors the Young Court stated should be considered
in determining whether a prosecutor’s “send a message” closing argument
3
The maximum possible sentence for this conviction was ten years of imprisonment.
4
The maximum possible sentence for this conviction was five years of imprisonment.
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amounted to palpable error, the Commonwealth’s allegedly improper statements in
this case were not supported by evidence in the record, and there is no argument
that they were used to rebut arguments made by the defense.
The Commonwealth stated that the jury’s sentence recommendations
would “send a message” to law enforcement and to the prosecutors regarding
whether they should continue pursuing and prosecuting drug traffickers. We find
this argument improper and, if it had been preserved for appellate review, it likely
would have resulted in a reversal of Van Berg’s sentence. Therefore, we
recommend that the Commonwealth’s Attorney heed our warning and refrain from
using this “send a message” argument in future cases.
However, in the present case, the claim was not preserved, and we
must review it for palpable error. We do not find that it amounted to palpable
error, particularly considering that the jury only recommended a sentence one year
above the statutory minimum for the trafficking conviction, and a sentence two
years above the statutory minimum for the possession conviction. Moreover, the
circuit court reviewed the jury’s recommended sentences and made the final
determination to adopt the jury’s recommendations, giving Van Berg an
“additional layer of protection from prejudice which we should consider in the
context of RCr 10.26 review.” Young, 25 S.W.3d at 75. Therefore, we find that
the prosecutor’s closing arguments, although improper, did not amount to palpable
error under the circumstances of this case.
Accordingly, the judgment of the Daviess Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Vincent Aprile, II
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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