JAMES RICKY OWENS V. COMMONWEALTH OF KENTUCKY SUPREME COURT OF KENTUCKY JANUARY 20, 2011 MINUTES RELEASED: 10:00 A.M.Annotate this Case
RENDERED : JANUARY 20, 2011
TO BE PUBLISHED
JAMES RICKY OWENS
ON APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE JANET CROCKER, JUDGE
NO . 08-CR-00003
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS
Appellant, James Ricky Owens, was convicted by a Simpson Circuit
Court jury of first-degree assault, tampering with physical evidence, and of
being a first-degree persistent felony offender (PFO) . For these crimes,
Appellant received an enhanced sentence of thirty years' imprisonment for the
first-degree assault conviction, based on the jury's contemporaneous finding
that he was a first-degree PFO, and an enhanced sentence of ten years for the
tampering with physical evidence conviction, based also on the first-degree PFO
finding, with the two sentences to be served concurrently . Appellant now
appeals to this Court as a matter of right. Ky. Const. § 110.
Appellant asserts five arguments on appeal: 1) that the trial court erred
by denying his motion for a directed verdict on the first-degree assault charge ;
2) that the trial court erred by allowing the Commonwealth to amend the
indictment to change the basis for the first-degree assault charge from
intentional conduct to wanton conduct which led to improper jury instructions
and lack of a unanimous verdict; 3) that the jury instruction for tampering with
physical evidence failed to identify any specific item of evidence allegedly
tampered with; 4) that the trial court erred by admitting into evidence during
the penalty phase the fact that Appellant was previously convicted as a seconddegree PFO ; and 5) that the trial court erred in failing to give penalty phase
jury instructions in accordance with Commonwealth v. Reneer, 734 S .W.2d 794
(Ky. 1987) . For the reasons set forth herein, we affirm Appellant's conviction
FACTUAL AND PROCEDURAL BACKGROUND
Thelma Sorrells was assaulted at her home in Franklin, Kentucky .
Based on evidence collected by the police, Appellant was indicted by the
Simpson County Grand Jury for one count of first-degree assault, one count of
tampering with physical evidence, and one count of first-degree PFO.
At trial, Sorrells testified that on the night of the assault, August 25,
2007, Appellant knocked on her door around 9 :30 p.m. and asked if they could
talk. Sorrells recognized Appellant as a friend of her recently deceased
husband, and she agreed . She testified that they sat outside on her patio
where Appellant offered her one of the two beers he had brought with him . She
declined . Appellant told Sorrells that he thought she was a "beautiful lady."
Sorrells replied that she was still dealing with her husband's death and that
she was not interested in him . Sorrells then said she needed to go inside the
house to check on her dog. Her next memory was waking up at Vanderbilt
Hospital having no idea of how or why she was there.
Sorrells remained in Vanderbilt Hospital for several days. She then went
to live with her son. Sorrells testified that as a result of the assault she
experienced leg pain, dizzy spells, vision problems, and was unable to walk
without holding on to items for support. Because of the injuries, she was
unable to return to work for two or three months . Sorrells testified that at the
time of the trial she had a scar on the back of her head, persistent weakness in
her arms, and that her lost memories of that night had not returned .
Dr. Robert Wesley was working at the Franklin Emergency Center the
night of the assault and treated Sorrells . He testified that her condition was
critical and that she had respiratory problems . She had bruising around her
eyes and a skull fracture. Dr. Wesley said he could feel Sorrells's brain in the
rear of her head and suspected she was experiencing potentially fatal brain
swelling. Dr. Wesley testified that he did not believe Sorrells would survive .
Sorrells likely would not have survived if not for the fact that someone
saw the altercation and called the police . Franklin Police Officer Benjamin
Brown testified that he was dispatched to Sorrells's house on August 25, 2007,
around 10 :30 p.m. Upon arriving he saw a white male lift a female (Sorrells)
up in the air and slam her down against the ground twice . As the man lifted
the woman in the air a third time, Officer Brown called out to the suspect
identifying himself as a police officer. The man then dropped the woman and
ran off. Officer Brown gave chase to the suspect through some heavy brush
but could not catch him. Officer Brown described the suspect as a white male,
with blond hair, wearing a white t-shirt and jeans.
Franklin Police Officer Justin Toth arrived at Sorrells's house soon after
Officer Brown and also began to chase the suspect. Officer Toth later saw the
suspect at a nearby house, near a swimming pool, dripping wet and wearing
only underwear. He arrested the suspect, who later was identified as
Appellant . Officer Toth testified that Appellant was intoxicated when arrested .
Officer Brown arrived at the scene of the arrest and saw scratches on
Appellant's legs and arms consistent with running through heavy brush .
However, another witness at trial testified that Appellant received the scratches
earlier that day.
Franklin Police Officer Ben Harper testified that the day after the assault
he found a gray t-shirt between a driveway and a hedge at a property near
Sorrells's home . The t-shirt was turned inside out and appeared to have blood
on the sleeve . Testing conducted by the Kentucky State Police Crime
Laboratory linked DNA from the t-shirt to both Appellant and Sorrells .
Franklin Police Captain Dallas Wiles processed the crime scene . There
he found a wallet containing Appellant's social security card and driver's
license, a hat that Appellant admitted to owning, and two beer cans . Captain
Wiles stated that Appellant was Mirandized and gave a written statement in
which he admitted to being at Sorrells's house the night of the assault, but
denied assaulting her. Appellant stated that he left the patio to use the
bathroom, and as he returned, he heard someone talking to Sorrells . He then
left Sorrells's house and went to his cousin's house, where he was found by
police and taken into custody.
The jury convicted Appellant of first-degree assault, tampering with
physical evidence, and of being a first-degree PFO, and sentenced him to a total
of thirty years' imprisonment . This appeal followed.
I . THE TRIAL COURT CORRECTLY DENIED APPELLANT'S MOTION FOR A
DIRECTED VERDICT ON THE FIRST-DEGREE ASSAULT CHARGE
Appellant first argues that the trial court erred by denying his motion for
a directed verdict on the first-degree assault charge. The Simpson County
Grand Jury indicted Appellant for first-degree assault under the theory that he
acted intentionally.' On the first day of trial, the Commonwealth made a
motion to amend the Indictment to charge Appellant with committing first-
1 Appellant correctly points out that the Indictment incorrectly merged the _elements of
first-degree assault committed under KRS 508.010(1)(a) (acting intentionally) with
first-degree assault committed under KRS 508.010(1)(b) (acting wantonly) .
However, any harm due to this error was cured by the Commonwealth's
amendment on the first day of trial.
degree assault wantonly instead of intentionally. The trial court granted the
motion.2 The jury was ultimately instructed on first-degree assault committed
through wanton conduct, KRS 508 .010(1)(b), but not first-degree assault
committed through intentional conduct, KRS 508 KRS 508 .010(l)
(1) A person is guilty of assault in the first degree when :
(a) He intentionally causes serious physical injury to another
person by means of a deadly weapon or dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the
value of human life he wantonly engages in conduct which creates
a grave risk of death to another and thereby causes serious
physical injury to another person.
We will review the trial court's ruling on Appellant's motion for a directed
verdict using the standard outlined in Commonwealth v. Benham, 816 S.W.2d
186, 187 (Ky. 1991)
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
On appellate review, the test of a directed verdict is, if under the
evidence as a whole, it would be clearly unreasonable for a jury to
2 Appellant argues that the Commonwealth's motion to amend the Indictment
incorrectly stated that first-degree assault by wanton conduct is a lesser-included
mental state of intent to first-degree assault by intentional conduct. While
Appellant is correct that "wantonness" is not a lesser-included mental state to
"intentional" under first-degree assault, the Commonwealth's error in so describing
it was not prejudicial to Appellant .
find guilt, only then the defendant is entitled to a directed verdict
Appellant argues that he was entitled to a directed verdict on the firstdegree assault charge because the evidence presented at trial established only
an intentional assault, not a wanton, assault. Appellant bases this argument
on Officer Brown's testimony that the assailant lifted Sorrells into the air
several times and slammed her to the ground . Appellant argues that Officer
Brown's testimony made it unreasonable for a juror to believe that the
assailant's conduct was anything other than intentional because the repeated
action indicated an intent to harm Sorrells . See Boulder v. Commonwealth, 610
S .W.2d 615 (Ky. 1980) (overruled on other grounds by Dale v. Commonwealth,
715 S.W .2d 227 (Ky. 1986)) (holding that a defendant who shot his victim five
times in the back acted intentionally and thus it was error to provide a jury
instruction based on wanton conduct) . Thus, Appellant argues that a juror
could not have reasonably believed he was guilty of first-degree assault
committed wantonly and he was therefore entitled to a directed verdict on that
charge. We disagree.
KRS 501 .020(3) defines wantonly as follows:
A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists . The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation from the
standard of conduct that .a reasonable person would observe in the
situation. A person who creates such a risk but is unaware thereof
solely by reason of voluntary intoxication also acts wantonly with
respect thereto .
(emphasis added) . This definition was provided to the jury as Instruction
No . 7.
Sufficient evidence was presented to support a reasonable juror's belief
that Appellant was intoxicated and therefore acted wantonly while assaulting
Sorrells . This evidence included testimony that Appellant drank beer while
talking with Sorrells, beer cans found at the crime scene, the arresting police
officer's testimony that Appellant was drunk when arrested and was charged
with alcohol intoxication, as well as Appellant's own statement that he did not
think he assaulted Sorrells, but if "I done it, I don't remember it." Further,
sufficient evidence was presented to place Appellant at the scene of the assault,
including his wallet which was found at the crime scene and his own
admission he visited with Sorrells . Based on this evidence a reasonable juror
could conclude that Appellant was voluntarily intoxicated at the time of the
assault and acted in a manner which created a substantial and unjustifiable
risk of serious physical injury to Sorrells .
Thus, reviewing "the evidence as a whole," we cannot say "it would be
clearly unreasonable for a jury to find guilt" on the first-degree assault charge
based on wanton conduct and the trial court correctly denied Appellant's
motion for a directed verdict. Benham, 816 S.W.2d at 187.
I I . THE AMENDMENT OF THE INDICTMENT PRIOR
TO THE START_OF TRIAL WAS NOT ERROR
Appellant next argues
a series of errors occurred due to
Commonwealth's amendment of the indictment at the start of trial. We will
review each one of these allegations in the order they are argued .
A. The Amendment of the Indictment was Proper
Appellant first argues that the trial court erred by allowing the
Commonwealth to amend the indictment for first-degree assault the morning of
the first day of trial. The amendment changed the mental state for the firstdegree assault charge from "intentionally" to "wantonly." Appellant did not
object to the amendment . In fact, Appellant's counsel assented to the
amendment. Nevertheless, Appellant requests that we review this for palpable
error. RCr 10.26.
RCr 6.16 states :
The court may permit an indictment, information, complaint, or
citation to be amended at any time before the verdict or finding if
no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced . If justice requires,
however, the court shall grant the defendant a continuance when
such an amendment is permitted .
The amendment of the indictment satisfies RCr 6.16 because it was made
before the trial began and did not charge Appellant with a new or different
offense . Appellant had ample notice of the nature of the assault charge to
prepare and present an effective defense . See Basham v. Commonwealth, 703
S .W .2d 480 (Ky. App. 1985) (holding that an indictment which was amended to
include the element of intent at the close of the Commonwealth's case was not
prejudicial to the defendant) . The appropriate relief when "justice requires" is a
continuance,,which Appellant never requested. RCr 6 .16. We discern no
prejudice arising out the amendment. There is no error here .
B. The Jury Instruction for First-Degree Assault Committed Due to Wanton
Conduct was Proper
Appellant next argues that the jury instruction on first-degree assault
committed wantonly was error because a conviction on that offense was
unsupported by the evidence. However, as we stated in Part I, supra, the
evidence was sufficient to support a conviction for first-degree assault, and
hence the giving of a jury instruction was proper .
C . The Jury Verdict on First-Degree Assault was Unanimous
Appellant next argues that the evidence presented by the Commonwealth
on the first-degree assault charge might induce some jurors to believe that
Sorrells's injuries were inflicted intentionally, while other jurors might believe
they were inflicted wantonly, and therefore the possibility of a non-unanimous
verdict has arisen . Appellant argues that there is no way we could know what
mens rea the jury believed he acted with because there was no instruction on
first-degree assault committed intentionally . This argument has no merit . The
instruction on first-degree assault did not present any alternative theories of
criminal responsibility to create a risk of non-unanimity . The jury is presumed
to follow any instruction given to them. Johnson v. Commonwealth, 105
S.W .3d 430, 436 (Ky. 2003) . We must presume that any juror not satisfied
beyond a reasonable doubt that Appellant was guilty under the instruction
would have so voted . The single theory of liability contained in the assault
instruction allowed for no unanimity concern. We perceive no error in the
D . The Failure to Provide a Second-Degree Assault Committed Intentionally
Instruction Was Not Error
Appellant next argues that he was entitled to receive a jury instruction
for second-degree assault committed intentionally under KRS 508
This alleged error was not preserved, so we review for palpable error. RCr
10 .26 . Again, Appellant argues that the evidence presented by the
Commonwealth proved that any assault committed against Sorrells was
committed intentionally . Thus, he argues that had the jury been instructed on
second-degree assault committed intentionally, the jury would not have found
him guilty of first-degree assault committed wantonly .
However, Appellant did receive a jury instruction on second-degree
assault committed wantonly under KRS 508.020(1)(c) and that instruction was
supported by the evidence . Appellant fails to demonstrate that another jury
instruction on second-degree assault would have aided him. Had the jury not
believed the assault against Sorrells was committed wantonly, it would have
acquitted Appellant of the assault. An additional instruction on intentional
assault would have worked to his detriment because it would have given the
jury an alternative basis under which to convict him, if it did not believe he
acted wantonly . There is no error here.
III . TH E ERRONEOUS JURY INSTRUCTION ON TAMPERING WITH
PHYSICAL EVIDENCE WAS NOT PALPABLE ERROR
Appellant next argues that the jury instruction for tampering with
physical evidence was prejudicially deficient because it failed to describe any
specific item or items of physical evidence that he allegedly either concealed or
destroyed. He contends that this deficiency enabled the jury to speculate
about what may be "evidence," and to convict upon insufficient evidence.
Appellant argues that he preserved the alleged instructional error by moving for
a directed verdict at the close of the evidence and arguing that the
Commonwealth had failed to introduce sufficient proof of what the tampering
charge referred to. We do not regard that motion as sufficient to call the trial
court's attention to the error Appellant now perceives in the instructions . RCr
9 .54 provides :
No 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 Appellant failed to specifically object to the instruction at trial, and
failed to offer an instruction or motion indicating with particularity his
objection to the tampering instruction sufficient to inform the court of his
concern, we regard the issue as unpreserved, and review this matter for
palpable error. RCr 10 .26.
The tampering with physical evidence instruction given in this case was
erroneous. The jury was instructed on the tampering with physical evidence
charge as follows:
Under Count Two of the indictment, you will find [Appellant] guilty
of Tampering with Physical Evidence under this instruction if, and
only if, you believe from the evidence beyond a reasonable doubt
all of the following:
A. That in Simpson County, Kentucky on or about August 25,
2007, and before the finding of the Indictment herein, [Appellant]
concealed and/or destroyed evidence which he believed was about
to be produced or used in an official proceeding;
B. That he did so with the intent to impair its availability in an
official proceeding . (Emphasis added.)
As is readily apparent, the instruction provided did not specify for the
jury what they must consider as'the "evidence" that was concealed or
destroyed . 3 By way of comparison, Cooper, Kentucky Instructions to Juries, §
7.63 provides the following model jury instruction for tampering with physical
You will find the Defendant guilty of Tampering with Physical
Evidence under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
A. That in this county on or about
(date) and before
the finding of the Indictment herein, he [altered] [destroyed]
(ID evidence) which he
believed was about to be produced or used in
(ID proceeding) ;
s KRS 524 .100 criminalizes the tampering with "physical evidence," not "evidence."
Given that the evidence at trial on this charge dealt only with items that clearly
meet the definition of "physical evidence" contained in KRS 524 .010(6), the
reference to "evidence" instead of "physical evidence" would alone not be prejudicial.
B. That he did so with the intent to impair its [accuracy]
[availability in the proceeding] .
We find no fault with this model instruction and commend its use. It
requires, as it should, identification of the particular item or items which,
according to the proof, would qualify as physical evidence supporting the
In Olfice, Inc. v. Wilkey, 173 S .W.3d 226, 229 (Ky. 2005) we reiterated our
The basic function of instructions in Kentucky is to tell the jury
what it must believe from the evidence in order to resolve each
dispositive factual issue in favor of the party who bears the burden
of proof on that issue. In other jurisdictions, as at common law, it
may be appropriate to say that the purpose of instructions is to
advise the jury on the law of the case, but not in this state.
The mere reference in the instructions given here to "evidence," without
identifying the particular items about which evidence was presented, was not
adequate to fully inform the jury what it must believe in order return a verdict .
The instructions, therefore, do not adequately constrain the jury's verdict to
items meeting the statutory definition of "physical evidence,"S and about which
sufficient proof was presented to support a verdict. However, while we
4 We do, however, find fault in the Comment accompanying Cooper's model
instruction, § 7 .63, wherein it advises "if factual issues exist [about whether the
item alleged qualifies as 'physical evidence' under the statutory definition]
substitute the phrase `physical evidence' in place of the specific item in question
and supply the statutory definition of 'physical evidence ."' In the unusual
circumstance that a question of fact arises about whether an item is "physical
evidence," the instruction should still identify the item in question, and simply add
an element to the above model instruction that requires the jury to determine if that
item is "any article, object, document, record, or other thing of physical substance ."
KRS 524.010(6) .
5 The statutory definition of "physical evidence" is found in KRS 524.010(6) .
recognize that an erroneous jury instruction is presumed to be prejudicial,
Harp v. Commonwealth, 266 S .W .3d 813, 818 (Ky. 2008), our review of this
matter compels the conclusion that the error affected no substantial rights of
Appellant and resulted in no manifest injustice. RCr 10 .26.
Ample evidence was presented to the jury to support a finding of guilt on
the tampering charge based on the concealed t-shirt, and the missing pants
and shoes. The jury could quite reasonably believe that Appellant hid his
t-shirt (albeit poorly) by throwing it in a neighboring yard, and otherwise
adequately hid or destroyed the pants and shoes, which Officer Toth testified
Appellant wore as he assaulted Sorrells . We find nothing in the record to
reasonably support the suggestion that the jury considered anything other
than the above mentioned items as it determined whether Appellant had
concealed or destroyed . evidence .
At the close of the evidence, Appellant moved for a directed verdict,
claiming that the proof was not sufficient to establish that Appellant had
concealed or destroyed anything. In overruling his motion, the trial court
noted that the evidence sufficiently supported the theory that, in an attempt to
conceal his shirt, Appellant discarded it in a neighboring yard as he left the
crime scene . Appellant now concedes that the evidence was sufficient to
support a conviction for tampering with physical evidence consisting of his
shoes and his pants. The Commonwealth submits that there is no mystery
about what "evidence" was tampered with, stating, "the only such evidence was
the Appellant's clothes," which we take to mean collectively as Appellant's
t-shirt, pants, and shoes.
Appellant suggests further that the failure of the instructions to reference
specific items of evidence fostered the possibility of a non-unanimous verdict,
in that some jurors may have voted to convict based on different items of
evidence. That argument, too, is unpreserved . In recognizing that the proof
presented at trial was sufficient to sustain Appellant's conviction based upon
any or all of the clothing items involved, we reiterate our conclusion that the
instructions, while defective, affected no substantial rights of Appellant and
resulted in no manifest injustice . RCr 10 .26.
IV. THE INTRODUCTION OF APPELLANT'S PRIOR PERSISTENT
FELONY OFFENDER STATUS INTO THE PENALTY PHASE OF
TRIAL WAS HARMLESS ERROR
Appellant next argues that the introduction of his prior status as a
second-degree PFO into evidence during the penalty phase was error. During
the penalty phase, a deputy circuit court clerk testified that Appellant had
previously been convicted of theft by unlawful taking "as a persistent felony
offender, second degree" and possession of anhydrous ammonia "as a
persistent felony offender, second degree ." Appellant's objection to the
reference to his prior PFO status was overruled . The PFO jury instruction
ultimately stated that, to find Appellant to be
first-degree PFO, the jury must
believe that Appellant was previously convicted of "knowingly possessing
anhydrous ammonia, committed as a persistent felony offender, second-degree"
and "theft by unlawful taking, committed as a persistent felony offender, seconddegree ." He now argues that the admission into evidence of the reference to his
prior second-degree PFO status, and its inclusion in the jury instructions
violated due process .
A persistent felony offender in the first degree is a person who is
more than twenty-one years of age and who stands convicted of a
felony after having been convicted of two or more felonies, or one or
more felony sex crimes against a minor as defined in KRS 17 .500,
and now stands convicted of any one or more felonies .
KRS 532 .080(3) (emphasis added) . "Conviction as a persistent felony offender
is not a charge of an independent criminal offense but rather a particular
criminal status . . . Persistent Felony Offender proceedings involves the status
of the offender and the length of the punishment, not a separate or
independent criminal offense." White v. Commonwealth, 770 S .W.2d 222, 224
(Ky. 1989) . Both parties acknowledge that we have no reported case law
holding that the inclusion of a defendant's prior PFO status in a jury
instruction or in the penalty phase hearing is error.
We first address the evidentiary question . KRS 532 .055(2)(x), part of the
"Truth In Sentencing" legislation that established our bifurcated method of
trying felony cases, provides that in the sentencing phase of the trial "evidence
may be offered by the Commonwealth relevant to sentencing including: . . . (2)
The nature of prior offenses for which he was convicted." As established in
White, a prior PFO conviction is not itself a "prior offense." In Robinson v.
Commonwealth, 926 S .W.2d 853, 855 (Ky. 1996), we held "all that is
admissible [under KRS 532 .055(2)(a)] as to the nature of a prior conviction is a
general description of the crime . In this case, it would be sufficient to
introduce the judgment with testimony that defendant assaulted the woman
with whom he had been living." However, in Cuzick v. Commonwealth, 276
S .W.3d 260, 264 (Ky. 2009), we cautiously held, consistent with Robinson, that
the Commonwealth could read into evidence from the arrest record prepared by
the arresting officer on the prior charge, a "description of the nature of the
prior offense [that] was limited . solely to the information contained on the
citation, namely that Appellant utilized a bat to commit the breaking aspect of
the burglary." The dissenting opinion in Cuzick reminded us that "[i]n
Robinson this Court noted that the purpose of truth in sentencing in regard to
a [PFO] conviction was simply to inform the jury that the defendant had prior
convictions, and what their general nature was, so that the jury could determine
whether the defendant had the status of a persistent felon." Id. at 269 (J . Noble,
concurring in part, dissenting in part) (emphasis added) .
The concern voiced in Robinson, and echoed in the Cuzick dissent, was
that an expansive interpretation of phrase "the nature of the prior offense"
might lead to protracted and potentially prejudicial "retrying" of contested
details of the prior crime during the penalty phase of the later crime, especially
if the "general description" of the prior offense included disputed gruesome or
heinous details of the prior offense. Appellant's previous second-degree PFO
status is not an aspect of the earlier crime that would lend itself to such
controversy . Moreover, if not a part of the prior criminal act itself, it is an
aspect of the "nature of the prior offense" that informs the jury's determination
on the first-degree PFO issue and the appropriate penalty. We therefore
conclude that the limited reference to Appellant's previous PFO status,
presented to the jury simply as part of the descriptive name of his prior felony
offense, did not violate the evidentiary restriction of KRS 532 .055, and hence it
did not violate his due process right to a fair trial .
With respect to the PFO instruction, we simply state that requiring the
prior offenses to have been "committed as a persistent felony offender, seconddegree" is an incorrect statement of law, and is error. Whether Appellant had
PFO status at the time of those convictions is immaterial to the first-degree
PFO charge . However, we see no likelihood the error affected the jury verdict or
substantially swayed the jury. It was, therefore, harmless and affords
Appellant no grounds for relief. See Winstead, 283 S .W.3d at 688-689.
V. THE PENALTY PHASE INSTRUCTION PROCESS DID NOT DENY
APPELLANT DUE PROCESS
Lastly, Appellant argues that he was denied due process by the trial
court's failure to follow Reneer, 734 S.W .2d 794, regarding the penalty phase
PFO sentencing instructions . Appellant failed to object to the trial court's
penalty phase procedure, and he requests palpable error review . RCr 10.26 .
Reneer states :
If the accused is also charged as a persistent felony offender, the
penalty phase and a persistent felony offender phase can be
combined and the jury in the combined bifurcated hearing could
be instructed to (1) fix a penalty on the basic charge in the
indictment; (2) determine then whether the defendant is guilty as a
persistent felony offender, and if so ; (3) fix the enhanced penalty as
a persistent felony offender.
Id. at 798. We stated in Sanders v. Commonwealth, 301 S.W .3d 497, 500 (Ky.
2010) that the process suggested by Reneer is the "better practice" for trial
courts to follow during the penalty phase .
In the present matter, the trial court did not instruct the jury to fix a
punishment for the underlying felonies before determining Appellant's guilt as
a PFO . Instead the jury found Appellant guilty of being a PFO, then set an
enhanced sentence for the underlying felony convictions based on the PFO
status . No sentence was fixed for the underlying offense, thus, Appellant
correctly asserts that Reneer was not followed .
While we continue to cite Reneer as the required practice for trial courts
to follow for PFO sentencing, we have not yet held that the failure to do so is
palpable error. See Miller v. Commonwealth, 283 S .W.3d 690, 704 (Ky. 2009)
(holding that the failure to instruct according to Reneer is a procedural issue
which we need not review without a contemporaneous objection) . We also note
that in Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991), we stated
that a jury's failure to set a penalty for the underlying offense before finding
PFO status does not violate the provisions of the PFO statute . Nonetheless we
strongly encourage trial courts to follow the Reneer procedure, and while the
failure to do so here is not palpable error, such may not always be the case.
Thus, for the foregoing reasons, Appellant's convictions and sentences
All sitting. All concur.
COUNSEL FOR APPELLANT:
V . Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
William Bryan Jones
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601