Details of Fred trying to get out of paying for his children's college expenses as he agreed to do:
West Virginia Supreme Court of Appeals: Damron v Shortt
Saturday, December 12, 2009
Saturday, April 25, 2009
What's Fred Been Up To?
After CEP he started Dakota-Global which was another HYIP scam.
Company Name
DAKOTA GLOBAL, LLC
Company Type
KLC - Kentucky Limited Liability Company
File Date
11/25/2008
Principal Office
130 SOUTH COLD SPRINGS ROAD
OLIVE HILL, KY 41164
Registered Agent
FREDERICK C. DAMRON
130 SOUTH COLD SPRINGS ROAD
OLIVE HILL, KY 41164
Dakota Global
Welcome to Dakota Global. This is the only HYIP Program you will ever need. A real investment where we share the profits with you. This program will last a VERY long time. STAY long, EARN long.
Dakota Global - Start with only $1.00 You earn a daily return and an income from referring others to a great program. We design this program to last, so your efforts and income don't get wasted.
About Us
Dakota Global Investment Limited is a company incorporated in Vanuatu under the Electronic Trading Act 2000 of Vanuatu and does it's business exclusively on the internet. Our business consist of creating value for domains that we own and generating revenues from these by factoring leaseback contracts. Domaining is a very lucrative business and we work a unique leaseback business model that is highly profitable.
We are also market makers and a significant player in the CME currencies options market working an inhouse developed system that has provided us a consistent 8% to 10% returns on a month to month basis. This system was developed over a 15 year period and is the only one of a kind in the world. We also do training and development of trading talents and systems analysis and design.
Our online business model came on to the internet on April 19th 2007, a very significant and auspicious day in the history of our company. Designed to outstrip and outlast all other online programs pretending to be real investments, our program can be started for ONLY $1.00 and our 7 level referral plan gives you the advantage of an affiliate referral income stream. You have 2 ways of making your money.
SIGN UP for ONLY $1.00 and find out for yourself how easy it is to secure your future with our program. We train people to make millions from the internet by first showing them how to make $1.00 and then leveraging it often enough to end up making millions. You cannot make a million from the internet unless you first learn to make $1.00 LIMITED TIME OFFER - Prelaunch BONUS - SIGN up now, we will give you a $10 bonus !!
FAQ
1. Is this legal ?
Yes.
2. How is it legal ?
Firstly, we do not and will never solicit funds from you. Any funds you decide to put with us is entirely your decision and solely your responsibility. Secondly, any funds you place with us is treated as a private loan from you to our company at a daily interest of 0.10%. This is a private loan from you to us, unsolicitated and unsecured. You are free to recall your loan to us at any time subject only to the limits we set to prevent any untoward cashflow situations to us. At the present, there is no known country in the world where it is illegal to make out a private loan.
3. What is the term of the loan ?
There is no agreed term of the loan and we credit the interest to your account on a daily basis.
4. Can I leave my funds with you indefinitely and just collect the payouts daily.
Yes.
5. Can I send funds to you in any other way besides e-gold ?
Yes. You have a choice of sending by any of the e-currencies we accept and by bank wire or Western Union and also by Credit Cards. Transfers by Credit Cards however, are subject to a 90 day hold to cater for possibility of charge-backs.
6. Can I contact you by telephone to make queries ?
Yes you can but our first line of support is by email and all your questions can be answered by that way. Should you require to talk on the telephone, we could provide you a contact only if your loan size is substantial and you require the comfort on knowing that we are contactable.
7. Do you have an office I can visit ?
We are an internet entity, a duly registered Company in Vanuatu and we do our business exclusively on the internet and do not require to have a physical office to work from. We do however have an agency office located at Singapore which acts as a collecting agent and physical contact location for us and you can visit us there if you really need or want to. These will have to be arranged and we will meet you only by appointment.
8. How can you pay out such rates ?
We are able to consistently generate profits in excess of what we payout to you by a factor of about 3 so your funds will help us make twice what we pay out to you.
9. What business are you in to generate such returns ?
We have 2 primary businesses from which we generate our profits. Firstly, we are in the Domaining business in that we acquire quality domain names which we develop and enhance the value of before selling it off for a high profit. In the time we hold the domain waiting for a buyer, we leaseback those domains with investors and have the domains rented for weekly income. Our second core business is in the trading of currency options in the Chicago Mercantile Exchange. We have an inhouse developed system which we use to secure monthly returns from. We are also involved in training of traders who would use our system to trade under our flag and manage our inhouse funds.
10. How long do you see yourself staying in business ?
Our inhouse system was developed over a period of 15 years so we have been in the game for quite a while and we forsee ourselves staying in this business indefinitely and have a succession program in place. Our domaining business will always be there unless the internet goes away which cannot be forseen so we will be around long after all the other HYIP programs on the net, pretending to be real, are gone.
11. Can I only earn from the daily interest payouts ?
No. We have in place a referral program. This is a 7 level mlm type structure whereby you will earn referral commissions from people you refer to the program. These people will stay in your downline forever once they sign up under your referral link and you earn from their loan placements. Since it is a 7 level payout, the commissions income from it, if fully developed can be significantly substantial.
What People Say About Dakota-Global:
Talk Gold
Company Name
DAKOTA GLOBAL, LLC
Company Type
KLC - Kentucky Limited Liability Company
File Date
11/25/2008
Principal Office
130 SOUTH COLD SPRINGS ROAD
OLIVE HILL, KY 41164
Registered Agent
FREDERICK C. DAMRON
130 SOUTH COLD SPRINGS ROAD
OLIVE HILL, KY 41164
Dakota Global
Welcome to Dakota Global. This is the only HYIP Program you will ever need. A real investment where we share the profits with you. This program will last a VERY long time. STAY long, EARN long.
Dakota Global - Start with only $1.00 You earn a daily return and an income from referring others to a great program. We design this program to last, so your efforts and income don't get wasted.
About Us
Dakota Global Investment Limited is a company incorporated in Vanuatu under the Electronic Trading Act 2000 of Vanuatu and does it's business exclusively on the internet. Our business consist of creating value for domains that we own and generating revenues from these by factoring leaseback contracts. Domaining is a very lucrative business and we work a unique leaseback business model that is highly profitable.
We are also market makers and a significant player in the CME currencies options market working an inhouse developed system that has provided us a consistent 8% to 10% returns on a month to month basis. This system was developed over a 15 year period and is the only one of a kind in the world. We also do training and development of trading talents and systems analysis and design.
Our online business model came on to the internet on April 19th 2007, a very significant and auspicious day in the history of our company. Designed to outstrip and outlast all other online programs pretending to be real investments, our program can be started for ONLY $1.00 and our 7 level referral plan gives you the advantage of an affiliate referral income stream. You have 2 ways of making your money.
SIGN UP for ONLY $1.00 and find out for yourself how easy it is to secure your future with our program. We train people to make millions from the internet by first showing them how to make $1.00 and then leveraging it often enough to end up making millions. You cannot make a million from the internet unless you first learn to make $1.00 LIMITED TIME OFFER - Prelaunch BONUS - SIGN up now, we will give you a $10 bonus !!
FAQ
1. Is this legal ?
Yes.
2. How is it legal ?
Firstly, we do not and will never solicit funds from you. Any funds you decide to put with us is entirely your decision and solely your responsibility. Secondly, any funds you place with us is treated as a private loan from you to our company at a daily interest of 0.10%. This is a private loan from you to us, unsolicitated and unsecured. You are free to recall your loan to us at any time subject only to the limits we set to prevent any untoward cashflow situations to us. At the present, there is no known country in the world where it is illegal to make out a private loan.
3. What is the term of the loan ?
There is no agreed term of the loan and we credit the interest to your account on a daily basis.
4. Can I leave my funds with you indefinitely and just collect the payouts daily.
Yes.
5. Can I send funds to you in any other way besides e-gold ?
Yes. You have a choice of sending by any of the e-currencies we accept and by bank wire or Western Union and also by Credit Cards. Transfers by Credit Cards however, are subject to a 90 day hold to cater for possibility of charge-backs.
6. Can I contact you by telephone to make queries ?
Yes you can but our first line of support is by email and all your questions can be answered by that way. Should you require to talk on the telephone, we could provide you a contact only if your loan size is substantial and you require the comfort on knowing that we are contactable.
7. Do you have an office I can visit ?
We are an internet entity, a duly registered Company in Vanuatu and we do our business exclusively on the internet and do not require to have a physical office to work from. We do however have an agency office located at Singapore which acts as a collecting agent and physical contact location for us and you can visit us there if you really need or want to. These will have to be arranged and we will meet you only by appointment.
8. How can you pay out such rates ?
We are able to consistently generate profits in excess of what we payout to you by a factor of about 3 so your funds will help us make twice what we pay out to you.
9. What business are you in to generate such returns ?
We have 2 primary businesses from which we generate our profits. Firstly, we are in the Domaining business in that we acquire quality domain names which we develop and enhance the value of before selling it off for a high profit. In the time we hold the domain waiting for a buyer, we leaseback those domains with investors and have the domains rented for weekly income. Our second core business is in the trading of currency options in the Chicago Mercantile Exchange. We have an inhouse developed system which we use to secure monthly returns from. We are also involved in training of traders who would use our system to trade under our flag and manage our inhouse funds.
10. How long do you see yourself staying in business ?
Our inhouse system was developed over a period of 15 years so we have been in the game for quite a while and we forsee ourselves staying in this business indefinitely and have a succession program in place. Our domaining business will always be there unless the internet goes away which cannot be forseen so we will be around long after all the other HYIP programs on the net, pretending to be real, are gone.
11. Can I only earn from the daily interest payouts ?
No. We have in place a referral program. This is a 7 level mlm type structure whereby you will earn referral commissions from people you refer to the program. These people will stay in your downline forever once they sign up under your referral link and you earn from their loan placements. Since it is a 7 level payout, the commissions income from it, if fully developed can be significantly substantial.
What People Say About Dakota-Global:
Talk Gold
Wednesday, September 12, 2007
Another of Fred's scams!
Suit Against Fred Damron in CEP Bankruptcy
More info on the scam: Colon End Parenthesis Trust BLOG
Trevor E. Reed
More info on the scam: Colon End Parenthesis Trust BLOG
Online site's take pegged at $16M
Trevor E. ReedLarger transfers made after freeze/rate drop are indicated in (-) after the names and amounts
*********************************************************************
Frederick Damron - $443,484.00 (Kentucky) http://download.yousendit.com/B4EF45F669C9F4BB
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
In re: CEP HOLDINGS, INC.,
Debtor.
______________________________________
CEP HOLDINGS, INC., et al.,
Plaintiffs,
v.
FREDERICK DAMRON,
Defendant.
Case No. 07-71810
Chapter 11
Judge Massey
Jointly Administered
Adversary Proceeding
No. 07-____________
Chapter 11
Judge Massey
Jointly Administered
Adversary Proceeding
No. 07-____________
COMPLAINT TO AVOID AND RECOVER TRANSFERS
COME NOW, CEP Holdings, Inc. (“Holdings”) and Colon End Parenthesis Trust, LLC (“Trust,” and together with Holdings, the “Debtors”), and file this Complaint to Avoid and Recover Transfers, alleging as follows:
JURISDICTION AND VENUE
1. The Debtors filed voluntary petitions in bankruptcy under chapter 11 of the United States Bankruptcy Code (11 U.S.C. §§ 101, et seq.) on July 27, 2007 (the “Petition Date”). An order was entered on August 3, 2007 to have their cases jointly administered. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(F), (H) and (O).
2. Venue of this adversary proceeding is proper in this district pursuant to 28 U.S.C. § 1409.
3. On July 9, 2007, the Securities and Exchange Commission (the “SEC”) filed its Complaint for Injunctive and Other Relief in the United States District Court for the Eastern District of North Carolina, Raleigh Division (the “District Court”), commencing the lawsuit styled Securities and Exchange Commission v. CEP Holdings, Inc., d/b/a colonendparenthesis.net, Trevor Reed, Clayton Kimbrell and Colon End Parenthesis Trust, LLC, Case No. 5:07-cv-00256-BO (the “SEC Action”). On July 10, 2007, the District Court entered the Order Granting Preliminary Injunction, Freezing Assets, Appointing a Receiver and Ordering Other Ancillary Relief (the “District Court Order”), to which Order the Defendants consented and the Debtors’ businesses were shut down. William F. Perkins was appointed receiver for the Debtors pursuant to the District Court Order and has since managed the Debtors’ assets and financial affairs.
2. Venue of this adversary proceeding is proper in this district pursuant to 28 U.S.C. § 1409.
THE PARTIES
3. On July 9, 2007, the Securities and Exchange Commission (the “SEC”) filed its Complaint for Injunctive and Other Relief in the United States District Court for the Eastern District of North Carolina, Raleigh Division (the “District Court”), commencing the lawsuit styled Securities and Exchange Commission v. CEP Holdings, Inc., d/b/a colonendparenthesis.net, Trevor Reed, Clayton Kimbrell and Colon End Parenthesis Trust, LLC, Case No. 5:07-cv-00256-BO (the “SEC Action”). On July 10, 2007, the District Court entered the Order Granting Preliminary Injunction, Freezing Assets, Appointing a Receiver and Ordering Other Ancillary Relief (the “District Court Order”), to which Order the Defendants consented and the Debtors’ businesses were shut down. William F. Perkins was appointed receiver for the Debtors pursuant to the District Court Order and has since managed the Debtors’ assets and financial affairs.
4. The SEC has alleged that Trevor Reed (“Reed”) and Clayton Kimbrell (“Kimbrell”), through Holdings, were involved in a fraudulent and unregistered offering of securities sold via the internet.
5. Upon information and belief, since May 2006, over $16,000,000 has flowed into the bank accounts of Trust from more than 10,000 participants in one of the three “investment” programs operated by Holding’s d/b/a websites. Trust served as an internet payment processor
through which the Debtors’ participants received and disbursed money.
5. Upon information and belief, since May 2006, over $16,000,000 has flowed into the bank accounts of Trust from more than 10,000 participants in one of the three “investment” programs operated by Holding’s d/b/a websites. Trust served as an internet payment processor
through which the Debtors’ participants received and disbursed money.
6. Upon information and belief, Holding’s “investment” programs included the following:
(a) a passive, interest-only investment format at colonendparenthesis.net. This program required a minimum initial investment of $20 and promised a daily return of 2% (more than 600% per annum) that was payable every thirty days by credit to the participant’s account at Trust. The participant committed to either a 180-day or 360-day option, but the original principal was not returned to the participant.
(b) investment autosurf websites generally known as CEPCoast.com and Coastin88.com. These programs were functionally identical, but had different financial restrictions and payout amounts. Participants purchased advertising packages, or “Ad Packs” at $5.00 each, which allowed the participant to place his website into a pool of websites that would be viewed and rated on a scale of one to five. If a participant purchased an Ad Pack, he or she then chose to either participate in the program offered at CEPCoast.com or Coastin88.com and was, thereafter, eligible to recover some of his or her costs, or even make a profit, by viewing and rating 15 websites--no more, no less--each day. For CEPCoast.com, 90% of each day’s revenue from purchases of Ad Packs was split pro-ratably among the participants who viewed websites that day, which participants could receive back as much as 130% of the cost of their Ad Packs. For Coastin88.com, 88% of each day’s revenue from purchases of Ad Packs was split pro-ratably among the participants who viewed websites that day, which participants could receive back as much as 115% of the cost of their Ad Packs. The caveats of these auto-surf programs were: (i) only participants who purchased Ad Packs were eligible to view and rate websites in order to earn credits, (ii) to share in a daily payout, the participant had to review all 15 websites sent to him or her that day, (iii) CEPCoast.com paid out 90% and Coastin88.com paid out 88% of daily Ad Pack purchases in their respective programs, and (iv) the payout to viewers each day was dependent on the amount of Ad Packs sales on that day (cash inflow), not on the number of websites viewed and rated by participants.
7. Upon information and belief, investors were led to believe that their funds were used to invest in safe “brick and mortar” type businesses that produced the promised yields, but there was, in fact, no significant investment of participant funds in any third-party business or investment other than a money market account yielding approximately 4%. Neither Reed nor Kimbrell invested personal funds in the programs described above.
8. Upon information and belief, (a) there was no review or audit of the financial transactions of the Debtors and (b) their records consist almost entirely of databases created by website transactions.
9. Several millions of dollars were transferred out of the Debtors’ accounts to Reed, Kimbrell, their family, as well as to employees and sub-contractors, for which it is believed that the Debtors did not receive reasonably equivalent value.
10. The Debtors had no source of funding for the profits paid to participants in these schemes other than the deposits of subsequent investors. It appears that more than 4,000 investors are still owed more than $9,000,000 of the money they initially invested in the Debtors.
11. Defendant Frederick Damron is a resident of Kentucky.
12. Defendant may be served with process in this adversary proceeding by mailing a copy of the summons and a copy of this Complaint by first class United States mail, postage prepaid, to his attention at 130 South Cold Springs Road, Olive Hill, Kentucky 41164, or by such other means as may be permitted by Rule 7004 of the Federal Rules of Bankruptcy Procedure.
8. Upon information and belief, (a) there was no review or audit of the financial transactions of the Debtors and (b) their records consist almost entirely of databases created by website transactions.
9. Several millions of dollars were transferred out of the Debtors’ accounts to Reed, Kimbrell, their family, as well as to employees and sub-contractors, for which it is believed that the Debtors did not receive reasonably equivalent value.
10. The Debtors had no source of funding for the profits paid to participants in these schemes other than the deposits of subsequent investors. It appears that more than 4,000 investors are still owed more than $9,000,000 of the money they initially invested in the Debtors.
11. Defendant Frederick Damron is a resident of Kentucky.
12. Defendant may be served with process in this adversary proceeding by mailing a copy of the summons and a copy of this Complaint by first class United States mail, postage prepaid, to his attention at 130 South Cold Springs Road, Olive Hill, Kentucky 41164, or by such other means as may be permitted by Rule 7004 of the Federal Rules of Bankruptcy Procedure.
THE AVOIDABLE TRANSFERS
13. Defendant participated in one or more programs offered by the Debtors as described in paragraph 6 above.
14. Attached hereto as Exhibit A is an itemization of the transfers from the Debtors to Defendant by date and amount of each transfer, which transfers totaled $443,484.00 (the “Transfers”).
15. During the operation of the Debtors’ scheme as set out in paragraphs 4 through 10 (the “Scheme”), various investors, including Defendant, were paid funds by the Debtors that purported to be (a) redemptions of funds invested or (b) profits made on principal funds invested.
14. Attached hereto as Exhibit A is an itemization of the transfers from the Debtors to Defendant by date and amount of each transfer, which transfers totaled $443,484.00 (the “Transfers”).
15. During the operation of the Debtors’ scheme as set out in paragraphs 4 through 10 (the “Scheme”), various investors, including Defendant, were paid funds by the Debtors that purported to be (a) redemptions of funds invested or (b) profits made on principal funds invested.
The source of these payments, including those to Defendant, was the principal investments of other investors. The payments to investors were made by the Debtors generally in furtherance of the Scheme. The fraudulent nature of the transfers, including those to the Defendant, was concealed. It is not fair for those investors who received such payments, including Defendant, to keep those payments to the detriment of the remaining creditors and investors who have not been paid and whose investments were used to pay other investors, including Defendant.
16. The Debtors contend that all transfers, in whatever form, made to Defendant by the Debtors are avoidable and recoverable by the Debtors. Defendant is on notice that the Debtors are seeking avoidance and recovery of all transfers from the Debtors to them, even if such transfers are not listed on the attached exhibit, and even if the total amount of these transfers exceeds the amounts set forth on the attached exhibit.
COUNT I
AVOIDANCE AND RECOVERY OF THE TRANSFERS PURSUANT
TO §§ 548(a)(1)(A) AND 550(a)(1) OF THE BANKRUPTCY CODE
AVOIDANCE AND RECOVERY OF THE TRANSFERS PURSUANT
TO §§ 548(a)(1)(A) AND 550(a)(1) OF THE BANKRUPTCY CODE
17. Plaintiff incorporates by reference paragraphs 1 through 16 above as if fully set forth in Count I herein.
18. The Transfers were transfers of interests in property of the Debtors.
19. The Transfers were made in furtherance of the Scheme.
20. The Transfers were made with actual intent to hinder, delay or defraud the creditors of the Debtors to which the Debtors were or became indebted on or after the dates that the Transfers were made.
21. The Transfers are avoidable pursuant to § 548(a)(1)(A) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
21. The Transfers are avoidable pursuant to § 548(a)(1)(A) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
COUNT II
AVOIDANCE AND RECOVERY OF THE TRANSFERS PURSUANT
TO §§ 548(a)(1)(B) AND 550(a)(1) OF THE BANKRUPTCY CODE
AVOIDANCE AND RECOVERY OF THE TRANSFERS PURSUANT
TO §§ 548(a)(1)(B) AND 550(a)(1) OF THE BANKRUPTCY CODE
22. Plaintiff incorporates by reference paragraphs 1 through 21 above as if fully set
forth in Count II herein.
23. The Transfers were transfers of interests in property of the Debtors.
24. The Debtors received less than reasonably equivalent value in exchange for each of the Transfers.
25. The Debtors were insolvent at the times that the Transfers were made or became insolvent as a result of each of the Transfers.
26. At the times of the Transfers, the Debtors were engaged in business or a transaction, or were about to engage in business or a transaction, for which any property remaining with the Debtors was unreasonably small capital.
27. At the times of the Transfers, the Debtors intended to incur, or believed that the Debtors would incur, debts that would be beyond the ability of the Debtors to pay as such debts matured.
28. The Transfers are avoidable pursuant to § 548(a)(1)(B) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
27. At the times of the Transfers, the Debtors intended to incur, or believed that the Debtors would incur, debts that would be beyond the ability of the Debtors to pay as such debts matured.
28. The Transfers are avoidable pursuant to § 548(a)(1)(B) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
COUNT III
AVOIDANCE AND RECOVERY OF THE PREFERENTIAL TRANSFERS
PURSUANT TO §§ 547(b) AND 550(a)(1) OF THE BANKRUPTCY CODE
AVOIDANCE AND RECOVERY OF THE PREFERENTIAL TRANSFERS
PURSUANT TO §§ 547(b) AND 550(a)(1) OF THE BANKRUPTCY CODE
29. Plaintiff incorporates by reference paragraphs 1 through 28 as if fully set forth in Count III herein.
30. The transfers made to Defendant by the Debtors within 90 days prior to the Petition Date (April 28, 2007 through July 27, 2007) total $109,015.00 (the “Preferential Transfers”).
31. In the event that Defendant was, at the time the Preferential Transfers were made, a creditor of one or more of the Debtors:
31. In the event that Defendant was, at the time the Preferential Transfers were made, a creditor of one or more of the Debtors:
(a) The Preferential Transfers were made within 90 days of the Petition Date and were transfers of interests in property of the Debtors;
(b) The Preferential Transfers were made to or for the benefit of Defendant, a creditor of one or more of the Debtors;
(b) The Preferential Transfers were made to or for the benefit of Defendant, a creditor of one or more of the Debtors;
(c) The Preferential Transfers were made for or on account of an antecedent debt owed by one or more of the Debtors to Defendant before the Preferential Transfers were made;
(d) The Preferential Transfers were made while the Debtors were insolvent within the meaning of § 547 and § 101(32) of the Bankruptcy Code;
(e) The Preferential Transfers enabled Defendant to receive more than he would have received if the bankruptcy cases of the Debtors were cases under chapter 7 of the Bankruptcy Code, the Preferential Transfers had not been made, and Defendant received payment of his debt to the extent provided by the provisions of the Bankruptcy Code; and
(f) The Preferential Transfers constitute avoidable preferential transfers pursuant to the provisions of § 547(b) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
(f) The Preferential Transfers constitute avoidable preferential transfers pursuant to the provisions of § 547(b) of the Bankruptcy Code and are recoverable by the Debtors from Defendant pursuant to § 550(a)(1) of the Bankruptcy Code.
REQUESTED RELIEF
WHEREFORE, the Debtors pray that the Court will enter judgment in their favor as follows:
a. Pursuant to Counts I and II, avoiding the Transfers pursuant to §§ 548(a)(1)(A) or 548(a)(1)(B) of the Bankruptcy Code and, pursuant to § 550(a)(1) of the Bankruptcy Code, against Defendant in the amount of the Transfers, but not less than $443,484.00, together with prejudgment interest thereon at the legal rate allowed under 28 U.S.C. § 1961 from the date hereof;
b. Pursuant to Count III, avoiding the Preferential Transfers pursuant to § 547(b) of the Bankruptcy Code and, pursuant to § 550(a)(1) of the Bankruptcy Code, against Defendant in the amount of the Preferential Transfers, but not less than $109,015.00, together with prejudgment interest thereon at the legal rate allowed under 28 U.S.C. § 1961 from the date hereof;
c. Providing for an award of costs to the Debtors; and
d. Providing for such other and further relief as this Court may deem necessary and proper.
Respectfully submitted, this 11th day of September, 2007.
GREENBERG TRAURIG, LLP
/s/ James R. Sacca
James R. Sacca
Georgia Bar No. 621843
John D. Elrod
Georgia Bar No. 246604
3290 Northside Parkway, N.W.
Suite 400
Atlanta, GA 30327
(678) 553-2100
Counsel for Debtors
EXHIBIT A
(FREDERICK DAMRON)
(FREDERICK DAMRON)
Recipient Date of Transfer Method of Transfer Amount of Transfer
Frederick Damron September 2, 2006 E-Gold Withdrawal $250.00
Frederick Damron October 1, 2006 Check Withdrawal $27,800.00
Frederick Damron January 7, 2007 Check Withdrawal $7,500.00
Frederick Damron January 8, 2007 Check Withdrawal $18,000.00
Frederick Damron January 20, 2007 ACH Withdrawal $20,000.00
Frederick Damron January 26, 2007 ACH Withdrawal $28,000.00
Frederick Damron February 19, 2007 ACH Withdrawal $25,000.00
Frederick Damron February 26, 2007 ACH Withdrawal $18,000.00
Frederick Damron March 12, 2007 ACH Withdrawal $10,000.00
Frederick Damron March 12, 2007 E-Gold Withdrawal $7,350.00
Frederick Damron March 21, 2007 ACH Withdrawal $37,000.00
Frederick Damron March 21, 2007 E-Gold Withdrawal $725.00
Frederick Damron March 28, 2007 ACH Withdrawal $35,000.00
Frederick Damron March 28, 2007 E-Gold Withdrawal $544.00
Frederick Damron April 1, 2007 E-Gold Withdrawal $41,800.00
Frederick Damron April 5, 2007 E-Gold Withdrawal $7,500.00
Frederick Damron April 11, 2007 ACH Withdrawal $18,000.00
Frederick Damron April 14, 2007 E-Gold Withdrawal $12,000.00
Frederick Damron April 20, 2007 ACH Withdrawal $20,000.00
Frederick Damron April 28, 2007 ACH Withdrawal $16,000.00
Frederick Damron April 30, 2007 ACH Withdrawal $17,500.00
Frederick Damron May 1, 2007 ACH Withdrawal $5,550.00
Frederick Damron May 5, 2007 ACH Withdrawal $10,250.00
Frederick Damron May 12, 2007 ACH Withdrawal $45,000.00
Frederick Damron May 28, 2007 ACH Withdrawal $1,850.00
Frederick Damron May 31, 2007 ACH Withdrawal $1,690.00
Frederick Damron June 4, 2007 ACH Withdrawal $3,225.00
Frederick Damron June 6, 2007 ACH Withdrawal $1,550.00
Frederick Damron June 10, 2007 ACH Withdrawal $3,250.00
Frederick Damron June 12, 2007 ACH Withdrawal $1,585.00
Frederick Damron June 14, 2007 ACH Withdrawal $1,565.00
TOTAL : $443,484.00
EXHIBIT A PAGE 1 OF 1
Tuesday, September 4, 2007
Have You Been Sent An Email Link to This Page?
If so, then you know, work with or are in business with someone on this page.
I consider convicted felon Fred Damron aka Frederick Cecil Damron, Frederick C. Damron as well as his girlfriend Ginger Hagerman aka Ginger Lee Rose Hagerman, Ginger L. Hagerman, Ginger Rose to be SCAM ARTISTS. They claim to be in control of a "BILLION DOLLAR TRUST" created and organized by Paul Hiram Chappell and Charles A. Spradlin that pays premiums on Irrevocable Life Insurance Trusts called FREEDOM 7, FREEDOM 8, LASTING LEGACY, LEGACY 7.
I consider convicted felon Fred Damron aka Frederick Cecil Damron, Frederick C. Damron as well as his girlfriend Ginger Hagerman aka Ginger Lee Rose Hagerman, Ginger L. Hagerman, Ginger Rose to be SCAM ARTISTS. They claim to be in control of a "BILLION DOLLAR TRUST" created and organized by Paul Hiram Chappell and Charles A. Spradlin that pays premiums on Irrevocable Life Insurance Trusts called FREEDOM 7, FREEDOM 8, LASTING LEGACY, LEGACY 7.
Fred Damron is a convicted felon. He was indicted on five counts of "Misuse of a Social Security Number" by a federal grand jury and pled guilty to one count in 2003. Frederick Cecil Damron criminal docket 02-CR-00006 Upon speaking to an ex-family member of Mr. Damron's, I was informed that these counts stem from the misuse of his eldest son's social security number. This ex-family member alleges that Mr. Darmon began using the number to avoid paying income taxes and child support. It was only discovered after the child was grown and was enlisting in the armed services.
He is currently under investigation with the Ashland, KY police department. If you have any questions as to whether this program or any program like it is legal, please contact Detective Rob Brunty (606) 327-2068 who is heading this investigation.
Billion Dollar Trust Manager, Fred Damron's home
Fred owned and resided in this home located at 1282 Highland Drive, Saint Albans, WV.
Ginger Lee Rose Hagerman (aka Ginger Hagerman, Ginger L. Hagerman, Ginger Rose) declared personal bankruptcy in 2002. The address of the billion dollar charity - 799 Hunt Street - is her home apartment #13. As of 2002, she had been living off of government disability payments for three years and accumulated $34,000 in outstanding credit card and retail charge card debt. There's some interesting documentation in the court records about her having to amend her social security number that she used on the initial filings.
Companies Associated with Fred Damron & Ginger Hagerman:
GUARDIANS FOR LIVING FOUNDATION, INC.
799 HUNT STREET
ASHLAND , KY 41101
President: GINGER L HAGERMAN
Secretary: HAZEL B DAMRON
Director : GINGER L. HAGERMAN
Director : CHARLES O LEWIS
Director: HAZEL B DAMRON
ASHLAND , KY 41101
President: GINGER L HAGERMAN
Secretary: HAZEL B DAMRON
Director : GINGER L. HAGERMAN
Director : CHARLES O LEWIS
Director: HAZEL B DAMRON
RIGHTS OF THE CHILD FOUNDATION
799 HUNT STREET
ASHLAND , KY 41101
President: GINGER L HAGERMAN
Secretary: HAZEL B DAMRON
Director : GINGER L. HAGERMAN
Director : CHARLES O LEWIS
Director: HAZEL B DAMRON
GENESIS ASSET MANAGEMENT, INC.
799 HUNT STREET
ASHLAND , KY 41101
President: GINGER L HAGERMAN
Director : GINGER L. HAGERMAN
Director : CHARLES O LEWIS
Director: HAZEL B DAMRON
GENESIS ASSET MANAGEMENT GROUP LLC
799 HUNT STREET
ASHLAND , KY 41101
Manager: GINGER L HAGERMAN
THE PERFECT RIDE, INC.
799 HUNT STREET
ASHLAND , KY 41101
President: GINGER L HAGERMAN
Secretary: HAZEL B DAMRON
Treasurer: HAZEL B DAMRON
Director : GINGER L. HAGERMAN
Director : CHARLES O LEWIS
Director: HAZEL B DAMRON
Everyone should be aware of with whom they are dealing so that they are not taken advantage of like so many others were in the recent Irrevocable Life Insurance Trust scam in which these two were involved.
Accomplices in this scam were:
Bob Pearson & Jeanie Pearson d/b/a
My Benefits America
UniqueCo Distribution or UniqueCo Distributing
Dallas, Texas & Plano, Texas
Charles Spradlin / Charles A. Spradlin
Sonship Ministries
Westfield, Indiana
Kent Traynor
Plano, Texas
Edward Allen Young / Ed Young
Ed Young & Associates
Carmel, Indiana
Gregory E. Young / Greg Young
Bancmark Financial
More information on all these individuals located at BEWARE OF BOB PEARSON.
I suspect that these individuals are heavily involved in other scams. If you have any information, please email me at watchoutforbob at yahoo dot com.
Monday, September 3, 2007
FREEDOM 7 PROGRAM and FREE WILL BAPTIST
Sent: Thursday, September 06, 2007 11:14 AM
To: Hagan, Mike
Subject: Freedom 7
Mr. Hagan:
I received word today that the FREEDOM 7 program is alive and well. The Free Will Baptist organization is promoting it to their congregations nationwide for Fred Damron & Ginger Hagerman. They are especially active in Oklahoma. They still claim that Fidelity & Guaranty is one of the insurance companies issuing policies on their behalf. Is this true?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
No, this is not true. We have never endorsed this concept.
Thank you for the information.
-Mike
____________________________
Michael Hagan, CFE
Forensic Investigator
Old Mutual Financial Network
OM Financial LifetOM Financial Life of New York
Phone: 410.895.0015
FAX: 410.895.0295 Email: mike.hagan@omfn.com
The Freedom 7 program is currently being promoted by the National Free Will Baptist organization. Free Will Baptist leaders have been made aware of these people's past and the fact that they are under investigation, but they continue to allow their members to submit personal information to these individuals.
This program was to have established an Irrevocable Life Insurance Trust (ILIT) for people who they approved. Any policies that were issued to MBA members were canceled due to non-payment. Of course, this begs the question, "why were they gathering all this personal information if they weren't going to pay for the policies"? The State of Oklahoma has issued a CEASE & DESIST order for Guardians For Living, MBA and it's employees. You can get a copy of the order from:
Sherry Standerfer, Legal Assistant
Oklahoma Insurance Department
P. O. Box 53408
Oklahoma City, OK 73152-3408
(405) 521-2748
The life insurance companies who were involved (even though they didn't know it) have opened fraud investigations. It is my understanding that some of the companies have taken steps to drop some of the agents from writing business for their companies.
Guardians For Living/Bancmark Financial
FREEDOM 7 DOCUMENTS
Advertisers this Letter below is for your eyes only
How To Determine If One Can Become A Qualified Person
Questions and Answers For Pastor Ray
Bancmark Advertiser Explanation Letter
FREEDOM 7 INVITATION
FREEDOM 7 Frequently Asked Questions
Compensation and Bonus Schedule
Independent Advertisers Letter
INDEPENDENT ADVERTISER AGREEMENT
Business Cards
Calling Card Thoughts
Dear Ministers, Pastors, Christians
Pastor Attention Letter
Who Can Tithe To Whom
Freedom 7 Form (F7F)
Guardians For Living/My Benefits America
FREEDOM 7 DOCUMENTS
FREEDOM 7 DOCUMENTS
INDEPENDENT ENROLLER AGREEMENT
MY BENEFITS AMERICA INC. “RD” AGREEMENT
Dates and email addresses used to notify the National Free Will Baptist:
To: keith@nafwb.org
Date: 1/12/2007
Subject: FREEDOM 7, GUARDIANS FOR LIVING
To: keith@nafwb.org
Date: 2/10/2007
Subject: FREEDOM 7 - Fidelity & Guaranty INVESTIGATION
To: dari@nafwb.org, melody@nafwb.org, steve@nafwb.org, debbie@nafwb.org, roy@nafwb.org
Date: 2/27/2007
Subject: FREEDOM 7 PROGRAM
To: jpuckett3@cox.net
Date: 1/12/2007
Subject: FREEDOM 7, GUARDIANS FOR LIVING
To: jpuckett3@cox.net
Date: 2/10/2007
Subject: Fidelity & Guaranty Investigation
Fred Damron Trying to Get Out of Paying for His Son's College Education
Fred Damron Fights Son's College Tuition Costs, but is a Record Producer???
"John Darin Rowsey is working on a new project with one of Christian Music's newest artists,Angie Caserta. You'll be hearing more about her. She's pictured here to the far left with John and executive producers Fred Damron and Ginger Hagerman."
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
___________
No. 33185
___________
CAROLE E. DAMRON SHORTT,
Petitioner Below, Appellee
v.
FREDERICK CECIL DAMRON,
Respondent Below, Appellant
________________________________________________________
Appeal from the
Hon. Tod J. Kaufman, Judge
Case No. 87-C-1254
AFFIRMED
________________________________________________________
Submitted: April 4, 2007
Filed: May 10, 2007
Mark A. Swartz, Esq. Charles R. Webb, Esq.
Swartz & Stump Charleston, West Virginia
Attorney for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.”
Syllabus Point 1, Burnside v. Burnside, 194
2. W.Va. Code, 48-2-15d [1993] was amended in 1994 (using language now codified at W.Va. Code, 48-11-103(c) [2002]) to authorize courts to vacate the provisions of certain divorce orders entered under the authority of W.Va. Code, 48-2-15d [1993] that required a parent to pay for a child's post-majority college expenses without the agreement of the parent.
3. “This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syllabus Point 2, Barnett v. Wolfolk, 149
Starcher, J.:
In this case, we clarify the relationship between two versions of a statute relating to court orders requiring a divorced parent to pay for the college expenses of a child who has reached the age of majority.
Facts & Background
The appellant in the instant case is Frederick Cecil Damron; the appellee is Carole Eileen Shortt. Mr. Damron and Ms. Shortt were married in 1982. In 1987, Ms. Shortt filed for divorce in the
On May 14, 1987, the parties entered into a written property settlement agreement. The parties' settlement agreement included a provision that stated, inter alia:
Husband agrees to underwrite the expense of providing the minor child/children of the parties with a post-high school education and to pay all tuition, fees, books, costs, and expenses relative to said child/children attending an accredited college, university, vocational or trade school of said child/children's choice; provided said child/children are full time students; provided they maintain at least a 2.0 grade point average after their Freshman year; provided they graduate by the time they attain the age of twenty-four (24) years; and provided the cost of said education does not exceed the cost of said children attending West Virginia University.
The terms of the property settlement agreement were incorporated into the circuit court's August 3, 1987 final divorce order (which also formally divorced the parties). The order stated:
It is further ordered and adjudged that the Defendant underwrite the expense of providing the minor child/children of the parties with a post high-school education and to pay all tuition, fees, books, costs, and expenses relative to said child/children attending an accredited college, university, vocational or trade school of said child/children's choice, provided said child/children are full time students; provided they maintain at least a 2.0 grade point average after their Freshman year; provided they graduate by the time they attain the age of twenty- four (24) years; and provided the cost of said education does not exceed the cost of said children attending West Virginia University.
In the fall of 2004, the parties' youngest son Alexander enrolled in
After a hearing on Ms. Shortt's petition, on October 24, 2005, the family court entered an order concluding that W.Va. Code, 48-11-103(c) [2002] (See footnote 4) (discussed further hereinafter) required the vacation of the provision in the 1987 final divorce order that required Mr. Damron to pay Alexander's college expenses. (See footnote 5)
However, the family court also concluded that the parties' written settlement agreement was independently enforceable, and that Mr. Damron was contractually required to pay Alexander's college expenses based on the settlement agreement.
In support of these conclusions, the family court stated:
In a separation agreement a party may contractually agree to undertake an obligation that the law would not otherwise impose upon him and be bound by that agreement. There was no evidence that Mr. Damron's agreement to pay college expenses was procured through fraud, duress or other unconscionable conduct. W.Va. Code §48-11-103(c) [2002] does not require that a separation agreement providing for payment of college expenses be vacated and, therefore, the separation agreement may be enforced against Mr. Damron. [Paragraph numbers omitted.]
On November 22, 2005, Mr. Damron appealed the family court's ruling to the
II.
Standard of Review
In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.
Syllabus Point 1, Burnside v. Burnside, 194
III.
Discussion
As previously noted, the circuit court relied upon language in W.Va. Code, 48- 11-103(c) [2002] (formerly codified at W.Va. Code, 48-2-15d [1994] and quoted hereinafter) to vacate the college expense payment provision of the parties' divorce order.
The briefs of both parties in the instant case assume that the circuit court's statute-based vacation of this portion of the divorce order was correct, and focus their discussion on the issue of the enforceability of the parties' separation agreement.
However, this Court has concluded, for the following-discussed reasons, that the circuit court erred in relying on W.Va. Code, 48-11-103(c) [2002] to vacate the college expense payment provisions of the parties' 1987 divorce order.
To properly understand the order “vacation” provisions of W.Va. Code, 48-11- 103(c) [2002], it is necessary to first understand
As this Court stated in Martin v. Martin, 175
There is nothing in the law, however, which precludes a parent from contracting to support his or her children after they reach the age of legal capacity. See In re Estate of
In 1993, W.Va. Code, 48-2-15d [1993] was enacted, and stated in pertinent part:
(b) The court may make an award for educational and related expenses for an adult child up the age of twenty-three who has been accepted or is enrolled and making satisfactory progress in an educational program at a certified or accredited college. The amount of these payments shall be related to the ability of the parent to make the payments. The payments shall be made to
the custodial parent when the adult child is residing with that parent or to a third party as designated by the court. If the child is not residing with a parent, the payments shall be paid to the child or to such third parties as so designated by the court.
This new statutory section specifically allowed courts to require a divorced parent to pay the college expenses of a child who was past the age of the child's majority _ without the agreement of the parent.
However, in 1994, only a year later, W.Va. Code, 48-2-15d [1993] was amended _ adding the order “vacation” language that is now codified at W.Va. Code, 48-11- 103(c) [2002]. The pertinent statutory language states:
The reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety- four shall not, by operation of the law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon finding that:
(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;
(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college, or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;
(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of section eight, article two, chapter forty-eight-a of this code or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or
(5) The order was entered after the fourteenth day of March, one thousand nine hundred ninety-four, in which case the order shall be vacated.
W.Va. Code, 48-11-103(c) [2002] (emphasis added).
The foregoing-quoted language, currently codified at W.Va. Code, 48-11- 103(c) [2002] and first enacted at W.Va. Code, 48-2-15d [1994], authorizes the vacation of only certain college expense payment orders that were entered under “the prior enactment of this section.” The words “the prior enactment of this section” clearly refer to the 1993 enactment of section 15d, chapter 48, article 2.
Thus, W.Va. Code, 48-2-15d [1993] was amended in 1994 (using language now codified at W.Va. Code, 48-11-103(c) [2002]) to authorize courts to vacate the provisions of certain divorce orders entered under the authority of W.Va. Code, 48-2-15d [1993] that required a parent to pay for a child's post-majority college expenses without the agreement of the parent.
In the instant case, the family court and circuit court concluded that W.Va. Code, 48-11-103(c) [2002] required the vacation of the college expense payment provisions of the parties' 1987 divorce order. (See footnote 6) However, that order was not entered under the authority of the 1993 enactment of W.Va. Code, 48-2-15d [1994]. Rather, the parties' divorce order was entered six years before section 15d even existed. Moreover, the parties' 1987 divorce order reflected the voluntary assumption by Mr. Damron of the duty to pay his son's college expenses. Therefore, W.Va. Code, 48-11-103(c) [2002] does not apply to the parties' divorce order, and the family court and circuit court erred in relying on this statute to vacate the college expense provision of the divorce order.
Having determined that the provision in the parties' 1987 divorce order requiring Mr. Damron to pay a portion of Alexander's college expenses was not subject to vacation under W.Va. Code, 48-11-103(c) [2002], it is not necessary to reach the issue of the separate and independent enforceability of the parties' written separation agreement.
Additionally, we find that the record before this Court does not disclose any other grounds upon which the parties' divorce order is void or unenforceable. This Court has consistently held that:
This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.
Syllabus Point 2, Barnett v. Wolfolk, 149
This well-established principle applies in the instant case. We therefore affirm the circuit court's ruling that Mr. Damron has an obligation to pay for Alexander's college expenses as provided in the parties' divorce order, on the grounds that he was required to do so by a valid court order.
IV.
Conclusion
The judgment of the circuit court is affirmed.
Affirmed.
A copy of the original complaint was not included in the record.
There are no issues involving Stuart in the instant case.
The cost of attending
The pertinent provisions of W.Va. Code, 48-11-103(c) [2002] were originally codified at W.Va. Code, 48-2-15d [1994].
The family court's order stated that the court had “no choice but to vacate the provision of the final order requiring [Mr. Damron] to pay college expenses[,]” upon Mr. Damron's motion for such vacation.
The court relied on the grounds that Alexander was under sixteen when the order was entered, W.Va. Code, 48-11-103(c)(3) [2002].
Fred is Indicted on 2 Counts of First-Degree Wanton Endangerment
Commonwealth Of Kentucky
Court Of Appeals
Court Of Appeals
NO. 1999-CA-000674-MR
FREDERICK DAMRON APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE KELLEY ASBURY, JUDGE
ACTION NO. 98-CR-00055
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER,JUDGE: This is an appeal from a conviction of two counts of second-degree wanton endangerment. Because the trial court did not errin denying appellant's motion for a mistrial and motion for a new trial, we affirm.
On April 1, 1998, Deputy Sheriff Patrick Boggs was attempting to serve a civil summons on appellant, Frederick Damron. Deputy Boggs waited in a parking lot near appellant's workplace, and spotted a Toyota MR2 automobile which he believed belonged to appellant, and recognized appellant as the driver.
Deputy Boggs made eye contact with appellant, after which appellant sped off. Deputy Boggs followed appellant to the highway. A high speed chase ensued down I-64, during which a car and a tanker truck had to swerve to avoid the MR2. When the MR2 reached West Virginia,Deputy Boggs was ordered over the police radio to terminate the pursuit. At one point during the chase, Deputy Boggs was able to get the MR2's license plate number, which was registered to appellant.
A warrant was issued for appellant's arrest, and he turned himself in to the Boyd County sheriff's department on April 3, 1998. On June 11, 1998 appellant was indicted on two counts of first-degree wanton endangerment resulting from his causing the car and truck to swerve. A jury trial was held on March 10, 1999. Appellant's defense at trial was that he was not driving his MR2 that day, rather he was driving a green Oldsmobile that he borrowed from a friend. The jury received instructions on both first- and second-degree wanton endangerment. The jury deliberated for approximately two hours, and returned a verdict of guilty on both counts of second-degree wanton endangerment, recommending a sentence of 12 months in jail and a $500 fine. Defense counsel requested that the jury be polled.
The trial judge then asked each juror individually if this was their verdict. Each of the jurors responded yes, until the court asked juror Donald Dulan, who replied "No". The court asked juror Dulan again, and he again replied in the negative. The foreperson told the court "Your Honor, I understood we all voted in agreement."Defense counsel moved for a mistrial. The court noted that the verdict must be unanimous, and sent the jury back to deliberate further. The jury returned after several minutes, with the same verdict. This time,when the jurors were polled, all of the jurors, including Dulan, responded "yes" when asked if that was their verdict. On March 17,1999, appellant filed a motion for new trial, on the grounds that the jury verdict was not unanimous. The trial court denied the motion on March 22, 1999, and this appeal followed:
On appeal, appellant argues that the trial court committed reversible error in denying appellant's motion for mistrial and motion for a new trial, because the jury verdict was not unanimous. When a jury verdict is announced, RCr 9.88 allows either party to require that the jury be polled, which is done by the clerk's or court's asking each juror if it is his verdict.
If,upon the poll, there is not unanimous concurrence, the verdict cannot be received. RCr 9.88. In Hart v. Commonwealth, Ky. App., 768 S.W.2d 552z9(1989), a poll of the jury following their initial return of a guilty verdict revealed that one juror was ambiguous in her position. The defendant moved for a mistrial after this juror gave her ambiguous response. The court denied the motion and sent the jury back for further deliberations, after which the jury returned a second guilty verdict. The second poll of the jury revealed no lack of unanimity. This Court held that under KRS 29A.320(3)(e), the trial court was authorized to send the jury back for further deliberations after the initial jury poll revealed the juror's ambiguous opinion. Id.at 555. KRS 29A.320(3)(e) states that when the jury is polled, "If more than the number of jurors required by KRS 29A.280, as appropriate to the type of case being tried, answers in the negative, the jury must be sent out for further deliberation."
As the instant case was a criminal case, requiring a unanimous verdict,the trial court could not receive the verdict when juror Dulan responded "No". RCr 9.88; KRS 29A.280(3). Per KRS 29A.320(3)(e), when juror Dulan answered in the negative, it was appropriate for the trial court to send the jury back for further deliberation.
Appellant incorrectly cites Coomer v. Commonwealth, Ky., 238 S.W.2d 161 (1951) and Johnson v. Commonwealth, 308 Ky. 709,215 S.W.2d 838 (1948), for the proposition that, unlike in Hart, in which a juror merely expressed misgivings, when a juror states a definite "No", that there must be a mistrial, because the jury verdict is not unanimous. Coomer and Johnson are readily distinguishable from Hart and the instant case. In Coomer, the trial court erred by accepting a guilty verdict, in spite of the fact that during the poll of the jury, one juror stated that he was forced to sign the verdict. In Johnson, the trial court erred when it received the verdict without conducting a poll of the jury, over defendant's objection.
In the instant case, the trial court did not receive the verdict after the poll revealed it was not at that point unanimous, but properly sent the jury back for further deliberations. KRS 29A.320(3)(e). When the jury returned the second time, the poll of the jury was unanimous, with the previously dissenting juror, Dulan, answering "Yes". To establish an absence of unanimity, upon being polled, the juror must connote that the verdict was given involuntarily, or was forced upon him, or against his will. Fleming v. Commonwealth, Ky., 419 S.W.2d 754 (1967). When juror Dulan replied "Yes" in the second poll, he did not indicate that the verdict was in any way involuntary or against his will.
Appellant further argues, that, at the very least, juror Dulan should have been examined to determine whether his
change in vote was influenced by coercion or threats. However, in Hart, this Court indicated that such an inquiry is not always necessary. In Hart, the second poll of the jury revealed no lack of unanimity, however, the defendant alleged that the trial court erred by not interviewing at length the juror who had misgivings after the first poll, to determine whether the second guilty verdict was, in fact, unanimous. Hart, 768 S.W.2d at 554-555.
This Court held that as none of the jurors had indicated any coercion, the trial court had no duty to interrogate the juror at length simply because she had previously expressed misgivings as to the initial guilty verdict. Id.at 555. Similarly, in the instant case, the trial judge had no duty to make such an inquiry of Dulan, as the second poll revealed no lack of unanimity, and neither Dulan nor any of the other jurors indicated any coercion.
Absent an abuse of discretion, a trial court’s decision whether or not to grant a mistrial will not be disturbed. Miller v. Commonwealth, Ky., 925 S.W.2d 449, 453 (1996). The granting of a new trial is a matter of judicial discretion, and unless there has been an abuse of discretion, an appellate court will not reverse. Jillson v. Commonwealth, Ky., 461 S.W.2d 542, 545
On April 1, 1998, Deputy Sheriff Patrick Boggs was attempting to serve a civil summons on appellant, Frederick Damron. Deputy Boggs waited in a parking lot near appellant's workplace, and spotted a Toyota MR2 automobile which he believed belonged to appellant, and recognized appellant as the driver.
Deputy Boggs made eye contact with appellant, after which appellant sped off. Deputy Boggs followed appellant to the highway. A high speed chase ensued down I-64, during which a car and a tanker truck had to swerve to avoid the MR2. When the MR2 reached West Virginia,Deputy Boggs was ordered over the police radio to terminate the pursuit. At one point during the chase, Deputy Boggs was able to get the MR2's license plate number, which was registered to appellant.
A warrant was issued for appellant's arrest, and he turned himself in to the Boyd County sheriff's department on April 3, 1998. On June 11, 1998 appellant was indicted on two counts of first-degree wanton endangerment resulting from his causing the car and truck to swerve. A jury trial was held on March 10, 1999. Appellant's defense at trial was that he was not driving his MR2 that day, rather he was driving a green Oldsmobile that he borrowed from a friend. The jury received instructions on both first- and second-degree wanton endangerment. The jury deliberated for approximately two hours, and returned a verdict of guilty on both counts of second-degree wanton endangerment, recommending a sentence of 12 months in jail and a $500 fine. Defense counsel requested that the jury be polled.
The trial judge then asked each juror individually if this was their verdict. Each of the jurors responded yes, until the court asked juror Donald Dulan, who replied "No". The court asked juror Dulan again, and he again replied in the negative. The foreperson told the court "Your Honor, I understood we all voted in agreement."Defense counsel moved for a mistrial. The court noted that the verdict must be unanimous, and sent the jury back to deliberate further. The jury returned after several minutes, with the same verdict. This time,when the jurors were polled, all of the jurors, including Dulan, responded "yes" when asked if that was their verdict. On March 17,1999, appellant filed a motion for new trial, on the grounds that the jury verdict was not unanimous. The trial court denied the motion on March 22, 1999, and this appeal followed:
On appeal, appellant argues that the trial court committed reversible error in denying appellant's motion for mistrial and motion for a new trial, because the jury verdict was not unanimous. When a jury verdict is announced, RCr 9.88 allows either party to require that the jury be polled, which is done by the clerk's or court's asking each juror if it is his verdict.
If,upon the poll, there is not unanimous concurrence, the verdict cannot be received. RCr 9.88. In Hart v. Commonwealth, Ky. App., 768 S.W.2d 552z9(1989), a poll of the jury following their initial return of a guilty verdict revealed that one juror was ambiguous in her position. The defendant moved for a mistrial after this juror gave her ambiguous response. The court denied the motion and sent the jury back for further deliberations, after which the jury returned a second guilty verdict. The second poll of the jury revealed no lack of unanimity. This Court held that under KRS 29A.320(3)(e), the trial court was authorized to send the jury back for further deliberations after the initial jury poll revealed the juror's ambiguous opinion. Id.at 555. KRS 29A.320(3)(e) states that when the jury is polled, "If more than the number of jurors required by KRS 29A.280, as appropriate to the type of case being tried, answers in the negative, the jury must be sent out for further deliberation."
As the instant case was a criminal case, requiring a unanimous verdict,the trial court could not receive the verdict when juror Dulan responded "No". RCr 9.88; KRS 29A.280(3). Per KRS 29A.320(3)(e), when juror Dulan answered in the negative, it was appropriate for the trial court to send the jury back for further deliberation.
Appellant incorrectly cites Coomer v. Commonwealth, Ky., 238 S.W.2d 161 (1951) and Johnson v. Commonwealth, 308 Ky. 709,215 S.W.2d 838 (1948), for the proposition that, unlike in Hart, in which a juror merely expressed misgivings, when a juror states a definite "No", that there must be a mistrial, because the jury verdict is not unanimous. Coomer and Johnson are readily distinguishable from Hart and the instant case. In Coomer, the trial court erred by accepting a guilty verdict, in spite of the fact that during the poll of the jury, one juror stated that he was forced to sign the verdict. In Johnson, the trial court erred when it received the verdict without conducting a poll of the jury, over defendant's objection.
In the instant case, the trial court did not receive the verdict after the poll revealed it was not at that point unanimous, but properly sent the jury back for further deliberations. KRS 29A.320(3)(e). When the jury returned the second time, the poll of the jury was unanimous, with the previously dissenting juror, Dulan, answering "Yes". To establish an absence of unanimity, upon being polled, the juror must connote that the verdict was given involuntarily, or was forced upon him, or against his will. Fleming v. Commonwealth, Ky., 419 S.W.2d 754 (1967). When juror Dulan replied "Yes" in the second poll, he did not indicate that the verdict was in any way involuntary or against his will.
Appellant further argues, that, at the very least, juror Dulan should have been examined to determine whether his
change in vote was influenced by coercion or threats. However, in Hart, this Court indicated that such an inquiry is not always necessary. In Hart, the second poll of the jury revealed no lack of unanimity, however, the defendant alleged that the trial court erred by not interviewing at length the juror who had misgivings after the first poll, to determine whether the second guilty verdict was, in fact, unanimous. Hart, 768 S.W.2d at 554-555.
This Court held that as none of the jurors had indicated any coercion, the trial court had no duty to interrogate the juror at length simply because she had previously expressed misgivings as to the initial guilty verdict. Id.at 555. Similarly, in the instant case, the trial judge had no duty to make such an inquiry of Dulan, as the second poll revealed no lack of unanimity, and neither Dulan nor any of the other jurors indicated any coercion.
Absent an abuse of discretion, a trial court’s decision whether or not to grant a mistrial will not be disturbed. Miller v. Commonwealth, Ky., 925 S.W.2d 449, 453 (1996). The granting of a new trial is a matter of judicial discretion, and unless there has been an abuse of discretion, an appellate court will not reverse. Jillson v. Commonwealth, Ky., 461 S.W.2d 542, 545
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