author: Justice GRAVES.

text:
    Randy KURTZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-0650-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Randall T. Bentley, Smiths Grove, KY, for Appellant.
    Gregory D. Stumbo, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.
   Opinion of the Court by

Justice GRAVES.

A jury of the Barren Circuit Court convicted Appellant, Randy Kurtz, of first-degree rape, two counts of first-degree sodomy, three counts of first-degree sexual abuse, and attempted first-degree sodomy in connection with the molestation of his girlfriend’s children. For these crimes, Appellant was sentenced to thirty years imprisonment, plus three years conditional discharge as required by KRS 532.043. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we must vacate Appellant’s convictions and remand for a new trial.

The evidence presented at trial tended to show that Appellant’s girlfriend and her children, L.S., F.T. (also known as F.M.), J.M., and D.M., were living with Appellant from 1996 until November 2002, when allegations of sexual abuse surfaced at the elementary school attended by the three youngest children. The oldest child, L.S., a high school student at the time, stated that she had never been subjected to abuse and was not aware of her siblings being abused. The three youngest children testified to various acts of sexual abuse that had been perpetrated by Appellant. The children’s therapist testified regarding the general characteristics and habits of child sex abuse perpetrators, stating that interfamilial perpetrators tend to target victims who live in the home and that it is not uncommon for some children within a familial unit to be abused while others are not. The therapist also testified regarding how children store memories, stating that children tend not to remember dates, but use association to store memories. Finally, the therapist testified regarding her treatment of the children, giving clinical histories for the children and more detailed explanations regarding abuse which was disclosed by the children during therapy. Other witnesses also testified for the Commonwealth, but their testimony need not be recounted herein for the purposes of this appeal.

Appellant presented several witnesses on his behalf. These witnesses testified that he had a normal and loving relationship with both the children and their mother, that he had good character and a good reputation in the community, and that he participated in social activities with his girlfriend and the children. The witnesses also testified that he built several things around the house, including an above ground pool, for the children’s use. Further testimony was given by Appellant’s ex-wife, who stated that Appellant had a loving and appropriate relationship with their two daughters, and that he had a normal sexual relationship with her while they were married.

The jury returned verdicts of guilty on nearly all counts submitted to it. Appellant asserts several assignments of error upon which he requests relief. We address each assignment of error in turn:

I. Finding of Compelling Need Pursuant to KRS 421.350(3)

KRS 421.350(3) states in pertinent part:

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding.

KRS 421.350(5) defines “compelling need” as “the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant’s presence.” Appellant contends the trial court erred when it allowed the children to testify by video deposition (which was later played to the jury at trial) pursuant to a finding of compelling need under this statute. A trial court’s finding of compelling need pursuant to KRS 421.350 is reviewed for abuse of discretion. Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky.1998).

In this case, the trial court considered the testimony of Julie Griffey, the children’s mental health counselor, and from that testimony determined that the children’s ages, nine, eleven, and twelve, their history, their course of treatment, and the opinions of Julie Griffey regarding the children’s well-being and their ability to testify supported a finding of compelling need. Appellant argues that the sole testimony of Julie Griffey is inadequate to support such a finding and that the trial court erred by failing to find a compelling need for each individual child. We disagree.

Appellant did not (and does not now) object to the admissibility of the various opinions expressed by Ms. Griffey during her testimony. Accordingly, we must presume her statements to be admissible for the limited purpose of determining this issue. Commonwealth v. Maride, 15 S.W.3d 376, 380 (Ky.2000) (“[T]his Court is limited to the review of those issues that were raised and ruled on by the trial court.”). When Ms. Griffey’s testimony is considered in its entirety, we find the trial court did not abuse its discretion when it found the content of the testimony to be sufficient to support a finding of compelling need for each child.

II. Proffer of Expert Testimony Pursuant to KRE 702

Appellant next claims the trial court abused its discretion when it permitted Ms. Griffey to testify regarding how children store and recall memories. Additionally, Appellant claims error by the trial court in allowing the expert to testify as to her qualifications in open court, rather than conducting a review of her qualifications outside the presence of the jury.

Initially, we find the issue of whether it was error to allow the expert to be qualified in open court to be unpre-served because Appellant’s counsel did not request the hearing to be held outside the presence of the jury. See Maride, swpra. Nonetheless, KRE 104(c) states that hearings on preliminary matters, such as the qualification of a witness, shall be conducted outside the jury’s presence when the “interests of justice require.” After careful review of the circumstances in this case, we find the interests of justice did not require the trial court to order, sua sponte, Ms. Griffey’s qualification to be made outside the presence of the jury.

Next, Appellant alleges the trial court abused its discretion when it ruled that Julie Griffey was qualified to testify regarding how children store and recall memories. Ms. Griffey testified that she had a master’s degree in Marriage and Family Therapy, was a licensed marriage and family therapist in the Commonwealth of Kentucky, was a member of the American Association of Marriage and Family Therapists and has twenty-seven years experience as a family therapist. She further testified that she specialized in counseling victims of child sexual abuse and was required by the Commonwealth of Kentucky to attend continuing education classes each year to maintain this specialty. She stated that knowledge regarding child memory was obtained and accumulated through education, training, and experience during her twenty-seven year career. She further testified that the topic was covered each year during her continuing education classes.

Appellant alleges that such qualifications were not sufficient to establish that Ms. Griffey’s testimony was reliable in the above referenced subject area pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky.1995), overruled on other grounds, Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999). In Mitchell, supra, at 101, this Court adopted the standard of review set forth in Daubert, supra. Daubert, supra, held that expert testimony must be both relevant and reliable in order to be admissible pursuant to KRE 702. Id. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480.

The reliability of proffered expert testimony is a preliminary question of fact reserved for the trial court and accordingly, a trial court’s reliability ruling in this area is reviewed for clear error. Miller v. Eldridge, 146 S.W.3d 909, 916 (Ky.2004). Appellant argues that Ms. Griffey’s testimony was inherently unreliable because none of the Daubert factors (whether the theory has been tested, whether it has been subjected to peer review, whether the rate of error is known, and whether the theory is generally accepted in the relevant field of study) were either considered or addressed by the trial court in this instance. We disagree.

In Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575, 578 (Ky.2000), this Court stated that “[t]he consideration of reliability entails an assessment into the validity of the reasoning and the methodology upon which the expert testimony is based.” We emphasized that the inquiry into reliability is a “flexible one,” and that the factors enumerated in Dau- herb, while applicable to all types of knowledge, are “neither exhaustive nor exclusive.” Id. In Miller, this Court held that the Court of Appeals erred by relying “too heavily” on the Daubert factors, stating that “the factors identified in Daubert may or may not be pertinent in assessing reliability depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Miller, supra, at 918-919 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999) (emphasis in the original)).

In this case, Ms. Griffey did not promote any theories or processes regarding how children store and recall memories which were susceptible to review under the factors listed in Daubert. Rather, she presented empirical evidence and basic conclusions derived therefrom which functioned to describe the manifest characteristics of how children store and recall memories. For example, Ms. Griffey testified that children’s memories tend to be more simplistic and less rich in detail than the memories of adults. Ms. Griffey went on to testify that children tend to recall memories like one might view a snapshot. She explained that children do not tend to recall timeliness and dates, but rather, they will recall only scenes or certain events.

In cases such as this where the testimony is merely describing the manifest characteristics of a particular subject and does not involve the application of any theories, processes, or methods of novel or controversial origin, “actual experience and long observation” is sufficient to qualify a person as an expert in the relevant subject area. See Farmland Mutual Ins. Co. v. Johnson, 36 S.W.3d 368, 388-389 (Ky.2000). We find Ms. Griffey’s twenty-seven years of education, training, and experience in the area of counseling and talking to children about their memories to be more than sufficient to qualify her as an expert in describing the manifest characteristics of child memory. Accordingly, we find no clear error by the trial court.

III. Testimony of Julie Griffey regarding Habit and Profile Characteristics

Appellant next argues that reversible error occurred when Ms. Griffey testified regarding the general habits and characteristics of the typical child sex abuse perpetrator. Because such testimony is expressly prohibited pursuant to Dyer v. Commonwealth, 816 S.W.2d 647, 652 (Ky.1991) and Miller v. Commonwealth, 77 S.W.3d 566, 572 (Ky.2002), we must reverse Appellant’s conviction and remand for a new trial.

Ms. Griffey testified that in her twenty-seven years of experience counseling child sex abuse victims, she found that perpetrators of such crimes tended to possess certain common characteristics — they tend to be members of the victim’s family or have some kind of special access to the victim, they tend to be in a role of some power, such as a parental or supervisory position, and they tend to be older than the victim. Ms. Griffey went on to testify that it is common for the perpetrator to groom the potential victim, by providing praise, gifts, or economic assistance, as a way of breaking down the victim’s defenses. Ms. Grif-fey further testified that it was not unusual for perpetrators to abuse only some of the children in a specific household and that perpetrators will tend to target only certain children whom they believe are easily intimidated by their authority and thus, more likely to capitulate to abuse and then keep it secret. Appellant’s counsel objected to the testimony, however, his objection was overruled by the trial court.

In Dyer, the prosecution presented evidence in a child sex abuse case which tended to show that the defendant possessed characteristics of a pedophile. 816 S.W.2d at 652. We held that “such profile evidence is inadmissible in criminal cases to prove either guilt or innocence.” Id. In Miller, where a victim had delayed reporting of abuse, we held improper the testimony of a seasoned child sex abuse investigator stating that it was common, in her experience, for sexually abused victims to delay reporting of the abuse. 77 S.W.3d at 571-72. We held that “a party cannot introduce evidence of the habit of a class of individuals either to prove that another member of the class acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way under similar circumstances.” Id. (citing Johnson v. Commonwealth, 885 S.W.2d 951, 953 (Ky.1994)).

Ms. Griffey’s testimony regarding the typical sex abuse perpetrator unmistakably touched on both the habits and the profile characteristics of that class of individuals which we have held is not relevant or permissible for the jury to consider during the Commonwealth’s case-in-chief. The Commonwealth contends that a portion of the testimony was offered in rebuttal to anticipated arguments and evidence which were to be offered by Appellant. We find this argument to be a non-issue in this case because there is absolutely no authority for the concept of “preemptive rebuttals” by the Commonwealth.

Appellant was alleged to possess many of the characteristics and habits described by Ms. Griffey and the entirety of Ms. Griffey’s testimony was reviewed a second time by the jury during its deliberations in this case. A careful review of these circumstances, when viewed in light of the entire record, compels us to deem the error in this case prejudicial and as such, Appellant is entitled to a new trial pursuant to the settled law.

Due to our holding, we elect not to address Appellant’s additional arguments regarding prosecutorial misconduct or the trial court’s refusal to grant his motion to correct or modify the record pursuant to CR 75.08 because such alleged errors are either (1) unlikely to recur on retrial, or (2) they are rendered moot by this opinion.

The judgments of the Barren Circuit Court are vacated; the case is remanded for a new trial consistent with this opinion.

All concur.

ROACH and WINTERSHEIMER, J.J., concur in result only.


source: Caselaw Access Project

author: Justice JOHNSTONE. WINTERSHEIMER, J.,

license: Public Domain

text:
    Billy AKERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-1049-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Damon L. Preston, Appeals Branch Manager, Department of Public Advocacy, Linda Roberts Horsman, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Ian G. Sonego, Brian T. Judy, Assistant Attorneys General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

Appellant, Billy Akers, was convicted in the Pike Circuit Court of first-degree stalking, fourth-degree assault, and two counts of second-degree unlawful imprisonment. He was sentenced to four years’ imprisonment. On appeal, the Court of Appeals held that a discovery violation and an error with regard to the instructions on the misdemeanor charges warranted reversal of the unlawful imprisonment and assault convictions. However, the court affirmed the felony first-degree stalking conviction. This Court thereafter granted Akers’ motion for discretionary review to consider two issues: (1) whether the discovery violation also warrants reversal of the felony stalking conviction, and (2) whether Akers was denied his right to peremptory challenges by the trial court’s refusal to excuse a juror for cause. For the reasons set forth herein, we affirm in part, and reverse in part, the decision of the Court of Appeals.

In June 2001, Akers’ wife, Ranie, and her fifteen-year-old daughter, Melissa, returned home one evening to find Akers waiting for them. Some months earlier, Ranie had obtained an emergency protective order (EPO) against Akers after he had choked her and threatened her life. The EPO prohibited Akers from coming within 1,000 yards of Ranie, as well as possessing any firearms in the home. However, the trial court thereafter granted Ranie’s request to drop the no-contact provision so that she could attempt to reconcile with Akers.

Upon encountering Akers, Melissa tried to use the telephone and learned that Ak-ers had disconnected the phone service. An argument between Akers and Ranie ensued, during which Ranie noticed that Akers had a gun. Thereupon, Ranie fled the trailer but was caught in the driveway by Akers. Akers grabbed Ranie by the hair and arm and dragged her across the gravel driveway, back into the trailer. Ak-ers then went to retrieve Melissa, who had also run out into the driveway. Akers grabbed Melissa and dragged her back into the trailer, hitting her head on the outside of the trailer as he did so. Akers thereafter ordered Ranie and Melissa to he on the bed, and he handcuffed them together. The pair remained there for the rest of the night. Apparently, Akers would periodically threaten to kill them.

The following morning, Akers, who had previously been diagnosed with a heart condition, began complaining of chest pain. He uncuffed Ranie and Melissa, took a shower, and the three proceeded to the hospital. Akers evidently remained at the hospital and the two women returned to the trailer to find Kentucky State Trooper Kevin White waiting in the driveway. Trooper White had been dispatched to the residence after Ranie's employer reported that she had not shown up for work that morning. The two women informed Trooper White of what had transpired the previous night.

Akers was subsequently indicted by a Pike County Grand Jury of one felony count of first-degree stalking, one count of fourth-degree assault for the injuries Ra-nie sustained to her leg, and two counts of first-degree unlawful imprisonment.

At trial, the defense theory was that Ranie and Melissa had fabricated the entire incident. This was based, in large part, on the fact that there was no physical evidence. In particular, discovery provided to the defense included Trooper White’s police report indicating that neither victim had suffered any injury. Thus, the defense intended to call into question the veracity of the victims’ claims and argue that the Commonwealth could not prove an essential element of the assault charge. However, when the Commonwealth called Trooper White to the stand, he testified as to the injuries Ranie sustained on her leg from being dragged across the gravel driveway. On cross-examination, defense counsel attempted to impeach Trooper White with the uniform offense report he completed, in which he checked the box indicating “no injury.” Trooper White thereafter explained that the report defense counsel was referring to was for the unlawful imprisonment charge and, in fact, there was a separate report for the assault charge on which he did mark the injury box. Trooper White further testified that he also completed a “wound report” with respect to Ranie’s leg injury.

Defense counsel then moved for a mistrial on the grounds that the Commonwealth had not complied with the trial court’s discovery order. Counsel argued that its entire defense was that there was no physical proof of the incident in question, which was consistent with the police report the defense had been provided, but not with Trooper White’s testimony and the second undisclosed report. While the Commonwealth conceded that it had a duty to provide the report to the defense if it existed, the Commonwealth claimed no knowledge of such. The trial court denied the motion on the grounds that the defense could not show it had been prejudiced by the Commonwealth’s failure to provide the assault report.

On appeal, the Court of Appeals found that the Commonwealth was under a duty to disclose the report and the failure to do so constituted reversible error, but only as to the assault charge. The majority opined that because neither false imprisonment nor stalking requires proof of physical injury, the Commonwealth’s failure to turn over the report did not prejudice Akers or warrant reversal of those convictions.

RCr 7.26(1) provides:

Except for good cause shown, not later than forty-eight (48) hours prior to trial, the attorney for the Commonwealth shall produce all statements of any witness in the form of a document or recording in its possession which relates to the subject matter of the witness’s testimony and which (a) has been signed or initialed by the witness, or (b) is or purports to be a substantially verbatim statement made by the witness. Such statement shall be made available for examination and use by the defendant.

As the Court of Appeals found, Trooper White’s report on the assault charge clearly falls within the ambit of RCr 7.26 because it related to the subject matter of his testimony and was signed by him. Maynard v. Commonwealth, 497 S.W.2d 567 (Ky.1973). Furthermore, we agree that Akers was prejudiced by the Commonwealth’s failure to provide him with the report since proof of an actual injury is an element of the fourth-degree assault charge. KRS 508.030. Evidence that Ra-nie sustained a physical injury was critical to the defense’s trial preparation, and as such, its denial must be considered reversible error.

We depart, however, from the Court of Appeals’ conclusion that the discovery violation only prejudiced Akers with respect to the assault charge. Akers’ sole defense at trial was that the incident in question never occurred, and he necessarily relied on the absence of any physical evidence. Such trial strategy was certainly plausible, given that the Commonwealth had disclosed Trooper White’s report in which he specifically checked the “no injury” box. Thus, when the undisclosed assault report came to light during trial, Akers’ entire defense was unquestionably “gutted.”

As Judge Buckingham noted in his dissenting opinion, had Trooper White testified only as to the false imprisonment report, the case would have simply been a “he said/she said” situation. However, once Trooper White confirmed the existence of the second undisclosed report, defense counsel’s ability to cross-examine him was essentially eviscerated. Anderson v. Commonwealth, 864 S.W.2d 909 (Ky.1993); Barnett v. Commonwealth, 763 S.W.2d 119 (Ky.1988). Moreover, because all of the charges stemmed from the single incident, Akers ability to defend against any of them, not merely the assault charge, was substantially impaired.

The trial court has broad remedial powers under RCr 7.24(9). As we noted in Weaver v. Commonwealth, 955 S.W.2d 722, 725 (Ky.1997), “[a] discovery violation justifies setting aside a conviction ‘only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different.’ ” (Quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995)); see also Kyles v. Whitley, 514 U.S. 419, 432-36, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985). Here, the Commonwealth’s failure to disclose Trooper White’s assault report prejudiced Akers’ ability to prepare a defense. Defense counsel labored under a misconception that there was no physical evidence. We cannot reasonably conclude that, had Ak-ers’ been provided the assault report, defense counsel would have proceeded in the same manner or the jury would have reached the same result. As such, all of Akers’ convictions must be reversed.

Because this Court holds that the Commonwealth’s discovery violation warrants reversal of all of Akers’ convictions, we necessarily do not reach the issue concerning Akers’ claim that he was denied his peremptory challenges by the trial court’s refusal to excuse a juror for cause.

Accordingly, the decision of the Court of Appeals is affirmed in part and reversed in part. Appellant’s convictions for first-degree stalking, fourth-degree assault, and second-degree unlawful imprisonment are vacated and the matter is remanded to the Pike Circuit Court for a new trial consistent with this opinion.

LAMBERT, C.J.; COOPER, GRAVES, ROACH, and SCOTT, JJ., concur.

WINTERSHEIMER, J.,

dissents because the discovery violation did not require a mistrial and vacation is unwarranted.


author: Justice GRAVES. Justice COOPER. Justice SCOTT,

text:
    Jasper POLLINI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0552-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Frank Wm. Heft, Jr., Louisville, KY, for Appellant.
    Gregory D. Stumbo, Attorney General, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.
   Opinion of the Court by

Justice GRAVES.

A jury of the Jefferson Circuit Court convicted Appellant, Jasper Pollini, for the crimes of murder (complicity), first degree burglary (complicity), second degree burglary (complicity), and receiving stolen property over $800 (complicity) in connection with an early morning burglary spree which culminated with the murder of Byron Pruitt. During the sentencing phase, the jury found as an aggravating circumstance that Appellant murdered Pruitt while he was engaged in the commission of a first degree burglary and fixed Appellant’s sentence for the murder of Pruitt at life imprisonment without the benefit of parole for twenty-five (25) years. Appellant was also sentenced to fifteen (15) years, ten (10) years, and one (1) year, respectively, for the remaining crimes, with such sentences ordered to run concurrently with the sentence on the murder conviction. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm all of Appellant’s convictions in this case, but vacate the sentence imposed on the murder conviction and remand for a new penalty phase trial on noncapital murder.

In the early morning hours of May 7, 2002, Appellant, who was seventeen years old at the time these crimes were committed, broke into Brian Murphy’s garage and stole some tools and a generator. Apparently unable to transport the generator, Appellant returned to his nearby home and sought the assistance of Jason Edwards, the boyfriend of Appellant’s sister, Crystal Plank. Edwards drove Appellant back to the area and the pair loaded the generator from Murphy’s garage into the trunk of Edward’s car. Appellant told Edwards to stay in the car and then proceeded to use a screwdriver to break into the nearby garage of Dan Ziegler.

Ziegler awoke shortly after 5:00 a.m. to the sound of his alarm system beeping. While investigating the source for the alarm, Ziegler went into his garage and saw Appellant. Ziegler testified that he perceived Appellant to have a weapon in his hand, but was not sure what it was. Ziegler told Appellant to stop what he was doing or he would “blow his head off.” Appellant fled from the scene and was chased into some nearby woods by Ziegler. Ziegler testified that he soon heard a car drive away after losing sight of Appellant in the woods. After returning to his home, Ziegler called 911 and his neighbor, Byron Pruitt, to report the incident and to advise Pruitt to check his property. After talking with Ziegler, Pruitt armed himself with an automatic pistol and a flashlight and began investigating the area.

Meanwhile, Appellant and Edwards drove back to Appellant’s house. Edwards removed the generator from his car, covered the car, and then went into the house. Shortly after retreating into the house, Appellant asked Edwards to take him back to Ziegler’s residence to retrieve a toolbox he had left at the scene. When Edwards refused to return to Ziegler’s residence, Appellant persuaded his sister, Crystal Plank, to drive him back to the scene to retrieve his toolbox.

Between sixteen and thirty minutes after first being confronted by Zeigler, Appellant and Plank returned to the scene of the burglaries. Appellant stated that he armed himself with a semi-automatic pistol immediately before his return to the scene of the crimes because he had been threatened by Ziegler. Upon their return to the scene, Appellant instructed Plank to turn off the lights on the car because he was about to get out to retrieve the toolbox. As Plank stopped the car, she observed a flashlight coming toward the car. Appellant hurriedly instructed Plank to back up; however, Plank had difficulty doing so due to poor visibility. Appellant then fired his gun out the window of Plank’s vehicle and the bullet pierced Pruitt in the throat. Pruitt died shortly thereafter from his injury. Immediately after the shooting, Appellant and Plank fled the scene, but were apprehended, along with Edwards, later that day.

Appellant asserts nine assignments of error upon which he requests relief. We address each assignment of error in turn:

I. Voir Dire Questions

Appellant argues it was prejudicial error for the trial court to ask each prospective juror the following question, “If you are on the jury, do you have any moral or religious or conscientious objections that would prevent you from considering the death penalty as a punishment and imposing it if you believe it appropriate?” The extent and appropriateness of questioning during voir dire is a matter within the sound discretion of the trial court. See Woodall v. Commonwealth, 63 S.W.3d 104, 116-118 (Ky.2002); Tamme v. Commonwealth, 973 S.W.2d 13, 25 (Ky.1998); Grooms v. Commonwealth, 756 S.W.2d 131, 134 (Ky.1988).

Appellant first asserts error in the trial court’s use of the word “impose” because such a word implies that the jurors must commit themselves to use of the death penalty later at trial. We disagree. The full context of the trial court’s question reads, “any ... objections that would prevent you from considering the death penalty ... and imposing it if you believe it appropriate?” (Emphasis added). When considered in its proper context, we find that the trial court’s question does not imply an improper premise nor is it likely to be misleading to a reasonable juror. See Wheeler v. Commonwealth, 121 S.W.3d 173, 179 (Ky.2003) (jurors who could not impose the death penalty were properly stricken for cause); Caudill v. Commonwealth, 120 S.W.3d 635, 654 (Ky.2003) (potential jurors may be excused for cause if the potential jurors are biased against imposition of the death penalty).

Appellant also asserts error with respect to the trial court’s question regarding whether the jurors had any “moral or religious or conscientious objections that would prevent” consideration of the death penalty as a punishment. Appellant argues such an inquiry violates the jurors’ rights to religious freedom under the Kentucky and United States Constitutions. This issue was not preserved and is raised by Appellant as palpable error under RCr 10.26. Appellant concedes that we addressed and rejected essentially the same argument in Parrish v. Commonwealth, 121 S.W.3d 198, 202 (Ky.2003) (“There was no violation of any provision of either the federal or state constitutions” when the trial court asked each prospective juror “if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case.”), but nonetheless urges reconsideration of the issue. After careful review, we find the totality of the circumstances in this case do not compel reconsideration of this issue and thus, we find no palpable error in the trial court’s voir dire question as cited above.

II. 911 Tapes

Appellant next argues that a tape recording of 911 telephone calls made by Ziegler during the course of events in this case should have been excluded from evidence because they were merely cumulative and overly prejudicial to Appellant. “It is well settled that the admission of tape recordings at trial rests within the sound discretion of the trial court.” Johnson v. Commonwealth, 90 S.W.3d 39, 45 (Ky.2002) (quoting United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983)); see also Cook v. Commonwealth, 129 S.W.3d 351, 361 (Ky.2004) (“The outcome of a KRE 403 balancing test is within the sound discretion of the trial judge, and that decision will only be overturned if there has been an abuse of discretion, i.e., if the trial judge’s ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”).

The tape recording introduced at trial contained three telephone calls made to 911 by Ziegler on the morning of Pruitt’s death. The recording reflects that at 5:47 a.m. Zeigler called 911 to report a break-in to his garage and that the suspect had subsequently fled from the scene. A second call made at 6:04 a.m. by Ziegler reported that he had heard a gunshot and someone yelling for him. The tape then reflects Ziegler observing Pruitt coming towards him, having been shot in the throat, and the 911 operator instructing Ziegler to hold a cloth to Pruitt’s throat to stop the bleeding. During this call, Pruitt can be heard in the background emitting sounds as a result of his fatal injury. A third call was made by Ziegler after he had assisted Pruitt.

Rule 403 of the Kentucky Rules of Evidence states, in part, that relevant evidence may be excluded by the trial court if the “probative value [of the evidence] is substantially outweighed by the danger of undue prejudice.” Alternatively, the trial court may exclude relevant evidence where the presentation of such evidence is merely cumulative and thus, unnecessary for a full understanding of the case. Appellant asserts that since Ziegler had already testified about the dramatic events which were partially captured within the calls he made to 911, the tape recording was merely cumulative and had little to no probative value. Appellant further asserts the tape recording was overly prejudicial because the tape recording impermissibly bolstered Ziegler’s prior testimony and audibly portrayed suffering by Pruitt as he was dying. We disagree.

It is generally accepted that evidence depicting gruesome, heinous, or unsettling portrayals of the crime or of the victim, while prejudicial to the defendant, is not excludable from the consideration of the jury unless such evidence becomes overly prejudicial to the defendant because it is (1) irrelevant; or (2) relevant, yet unnecessary for a full understanding of the case. See Johnson v. Commonwealth, 105 S.W.3d 430, 438 (Ky.2003), Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky.1998). In this case, while Ziegler had previously testified regarding the events he witnessed and the calls he made to 911 the morning of Pruitt’s death, he could only estimate the approximate time sequence for these events and calls. The 911 tape recording established the exact times for the calls made by Ziegler and functioned to put the sequence of events into context for the jury. Accordingly, we find the 911 tape to have probative value and reject the suggestion that it is imper-missibly cumulative. See Young v. Commonwealth, 50 S.W.3d 148, 169 (Ky.2001) (videotape of death throes of victim relevant to prove corpus delicti).

Appellant argues, nonetheless, that the prejudicial effect of the tape recording could have been greatly diminished if the Commonwealth had accepted the defense counsel’s offer to stipulate the time sequence of Ziegler’s 911 calls. This Court has repeatedly held that “a stipulation offer cannot provide the foundation for a KRE 403 argument on appeal” because “the prosecution is permitted to prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see.” Johnson v. Commonwealth, 105 S.W.3d 430, 438-39 (Ky.2003) (quoting Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky.1998)). We must therefore review the evidence as it was presented by the Commonwealth and not how it might have been presented. When the probative value of the 911 tape recording is considered in light of its potential prejudice to Appellant, we find no abuse of discretion by the trial court when it allowed the tape recording to be played to the jury.

III. Transfer of charges from juvenile to circuit court

Appellant next argues that indictment 02-CR-1632, charging him with second degree burglary and receiving stolen property in connection with the burglary of Murphy’s garage, was improperly tried in circuit court. Because Appellant was seventeen years old at the time these crimes were committed, juvenile court was granted exclusive jurisdiction over the matters unless and until the matters were properly transferred to circuit court pursuant to KRS 635.020 and KRS 640.010. See Osborne v. Commonwealth, 43 S.W.3d 234, 238-39 (Ky.2001).

In this case, Appellant concedes that a juvenile transfer order properly conferred jurisdiction of the murder charge and the first degree burglary charge involving Ziegler’s garage to circuit court. Subsequent to this transfer order, second degree burglary and receiving stolen property charges involving Murphy’s garage were brought directly in circuit court and consolidated with the previous charges contained in the juvenile transfer order. At trial, Appellant requested both a directed verdict and a dismissal based on the premise that jurisdiction for the subsequent charges was never conferred on the circuit court.

Citing Commonwealth v. Varney, 690 S.W.2d 758, 760 (Ky.1985) and RCr 8.18, the Commonwealth initially argues that Appellant’s motions during trial were untimely and, therefore, the issue was not properly preserved for review because Appellant failed to challenge the validity of the subsequent charges by motion prior to trial. We disagree. RCr 8.18 states, in part, “Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court ... may be raised only by motion before trial.” (Emphasis added). RCr 8.18 goes on to instruct that “lack of jurisdiction ... shall be noticed by the court at any time during the proceedings.” Whether the subsequent charges were within the scope of the juvenile transfer order is clearly jurisdictional in nature and thus, RCr 8.18 does not preclude, but rather preserves, review of this issue. The Commonwealth’s reliance on Varney is similarly misplaced since that case dealt with a defendant’s failure to timely object to a defect in an indictment that was completely unrelated to whether the circuit court had jurisdiction to try the actual offenses. 690 S.W.2d at 760.

Having found the issue to be properly preserved, we now consider whether the circuit court had jurisdiction to try the second degree burglary and receiving stolen property charges involving Murphy’s garage. Juveniles, such as Appellant, who are alleged to be youthful offenders pursuant to KRS 635.020 are entitled to certain procedural safeguards, such as a preliminary hearing, before jurisdiction can be properly transferred from juvenile court to circuit court. KRS 640.010. Despite the holding of proper transfer proceedings for the murder and first degree burglary charges involving Ziegler’s garage, Appellant asserts it was error to bring the subsequent charges directly in circuit court. Rather, Appellant argues the charges should have been filed in juvenile district court and properly transferred through the holding of a second set of transfer proceedings in accordance with the procedures set forth in KRS 640.10. We disagree.

In Osborne v. Commonwealth, 43 S.W.3d 234, 238 (Ky.2001), this Court stated that “it is the offender that is transferred to circuit court, not the offense.” Accordingly, subsequent charges against a youthful offender may be brought directly in circuit court without conducting a second set of transfer proceedings if (1) proper juvenile transfer proceedings have previously been held and a valid transfer order from those proceedings has been entered; and (2) the subsequent charges “aris[e] out of the same course of conduct that gave rise to the offense that caused the child to be transferred to circuit court.” Id. Appellant argues that in order for charges to fall within the parameters of being within the “same course of conduct that gave rise to the offense that caused the child to be transferred to circuit court,” all the charges must involve the same victim.

After careful review of KRS 610.015(2) and KRS 635.020(8), we find the standard articulated in Osborne extends beyond just those offenses which involve the same victim. KRS 610.015(2) states, “The Circuit Court shall try all misdemeanor, violation, traffic offense, and status offense matters included in or which arise from the act or series of acts which result in the trial of a child as an adult in the Circuit Court.” KRS 635.020(8) reads in similar fashion, “All offenses arising out of the same course of conduct shall be tried with the felony arising from that course of conduct, whether the charges are adjudicated under this chapter or under KRS Chapter 640 and transferred to Circuit Court.” From these statutes, we interpret the term “same course of conduct” as it was utilized in Osborne to encompass all conduct which results in charges which may be tried against the juvenile at the same time as the charges that caused the juvenile to be transferred to circuit court. See RCr 6.18 (allowing offenses to be charged in the same complaint, indictment, or information if they are “of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan”) and RCr 9.12 (allowing offenses to be tried together if they could have been joined in a single complaint, indictment, information or uniform citation).

In this case, the burglary of Murphy’s garage was part of a continuous and uninterrupted crime spree which culminated with the murder of Pruitt. The entire sequence, beginning with the break-in to Murphy’s garage and ending with the death of Pruitt, lasted no longer than a few hours. These actions were interrelated enough to be joined at trial and as such, they were interrelated enough to constitute the “same course of conduct” as it is defined in Osborne.

IV. Jury Instructions

Appellant first asserts that his right to a unanimous jury verdict was violated in this case when the trial court instructed the jury on alternate theories of wanton and intentional murder. In Davis v. Commonwealth, 967 S.W.2d 574, 582 (Ky.1998), we explained:

Nothing less than a unanimous verdict is permitted in a criminal case. Unanimity becomes an issue when the jury is instructed that it can find the defendant guilty under either of two theories, since some jurors might find guilt under one theory, while others might find guilt under another. If the evidence would support conviction under both theories, the requirement of unanimity is satisfied. However, if the evidence would support a conviction under only one of two alternative theories, the requirement of unanimity is violated.

Id. (citations omitted).

Appellant objected to the jury instruction at trial, arguing there was insufficient evidence to support a theory that Appellant intentionally murdered Pruitt. When determining whether it was error for the trial court to submit a specific theory to the jury, this Court must determine whether the evidence, when considered in the light most favorable to the Commonwealth, is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty under that theory. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). Appellant argues there was no direct evidence to show that he had specific intent to murder Pruitt. In fact, to the contrary, Appellant points to testimonial evidence from himself and Plank, the only two witnesses at the scene of the shooting, which explains the shooting as simply a regrettable accident that was intended only to frighten Pruitt away from chasing their vehicle.

We have repeatedly held that specific intent need not be proven by direct evidence. See, e.g., Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky.1997). It is also axiomatic that the jury is not required to believe self-serving statements from the defendant or any of his witnesses. See Edmonds v. Commonwealth, 906 S.W.2d 343, 347 (Ky.1995) (citing Armstrong v. Commonwealth, 517 S.W.2d 233, 235 (Ky.1975)). In Parker, we stated:

Proof of intent in a homicide case may be inferred from the character and extent of the victim’s injuries. Intent may be inferred from actions because a person is presumed to intend the logical and probable consequences of his conduct and a person’s state of mind may be inferred from actions preceding and following the charged offense.

952 S.W.2d at 212.

In this case, there is evidence to show (1) that Appellant intentionally brought a loaded gun with him when he returned to the scene of the crime to retrieve his toolbox, (2) that Appellant intended to shoot that gun when he pointed it out the window of Plank’s vehicle, and (3) that Appellant did indeed shoot Pruitt in the neck and jaw. The evidence also tends to show that Appellant did not stop to investigate or provide assistance when he observed Pruitt or his flashlight fall to the ground after the shooting, and that Appellant did not contact police or emergency services when he returned to his residence after the shooting. When viewed in the light most favorable to the Commonwealth, we find the evidence is more than sufficient to support an inference that Appellant intentionally murdered Pruitt and accordingly, the trial court did not err with respect to this instruction.

Appellant next argues the trial court erred when it failed to include an instruction on the lesser included offense of third degree burglary for breaking into Ziegler’s and Murphy’s garages. In Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998), we explained, “Although a trial judge has a duty to prepare and give instructions on the whole law of the case, including any lesser included offenses which are supported by the evidence, that duty does not require an instruction on a theory with no evidentiary foundation.” Id. (citations omitted). After careful review, we find an instruction on third degree burglary has no evidentiary support in this case.

Under Kentucky law, the only distinction between second and third degree burglary is the fact that second degree burglary involves the burglary of a “dwelling” and third degree burglary involves the burglary of a “building.” KRS 511.030 and KRS 511.040. Appellant contends an instruction on third degree burglary was warranted in this case because the attached garages could have been considered “buildings” that were separate and apart from the attached “dwellings.” We disagree.

“Dwelling” and “building” are defined in KRS 511.010 as follows:

(1) “Building,” in addition to its ordinary meaning, means any structure, vehicle, watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation.
Each unit of a building consisting of two (2) or more units separately secured or occupied is a separate building.
(2) “Dwelling” means a building which is usually occupied by a person lodging therein.

(Emphasis added). It is implicit from this statute that individual units of a building cannot be considered “separate buildings” unless those units are separately secured or occupied.

There is no evidence to show, and Appellant does not contend, that Murphy’s and Ziegler’s attached garages were separately secured or occupied. Furthermore, a fair reading of the statute leads us to conclude that the drafters of this section of the penal code did not envision attached garages as “units” separate and apart from the residence building. Cf. Stewart v. Commonwealth, 793 S.W.2d 859 (Ky.App.1990) (separately secured basement is part of the “dwelling” house located directly above and not a separate “building”). See also, State v. Otto, 529 N.W.2d 193, 195-96 (S.D.1995) (noting that “most states which have addressed the issue have concluded that an attached garage falls within the definition of occupied structure or dwelling for purposes of burglary statutes ....”). Accordingly, we hold the trial court did not err by failing to tender a jury instruction on the lesser included offense of third degree burglary because the attached garages in this case were part and parcel with the residences occupied by Murphy and Ziegler. See Johnson v. Commonwealth, 875 S.W.2d 105, 107 (Ky.App.1994) (screened-in porch that was attached to the house is part of the “dwelling” house and not a separate “building”).

Appellant also argues the trial court erred when it failed to instruct the jury on the lesser included offense of first degree manslaughter with intent to cause serious physical injury. Although an instruction on the above theory was included among Appellant’s fifteen page list of proposed jury instructions which was tendered to. the trial court, there is no evidence to show that Appellant’s counsel took any measures to call the trial court’s attention to this potential oversight at trial or to specifically object to the instruction’s exclusion despite numerous opportunities to do so. In fact, after a lengthy conference with the parties regarding jury instructions, the record indicates the parties were instructed by the trial court to review the jury instructions among themselves and attempt to reach an agreement as to the final wording of the instructions. If there were any further issues that could not be resolved between the parties, they were instructed to alert the trial court. The record reflects the final instructions were presented to Appellant’s counsel and to the trial court the next day and that there were no objections to the final instructions at that time or during any time when they were being read to the jury.

For adequate preservation of exceptions to jury instructions, the Kentucky Rules of Criminal Procedure require evidence on the record of either (1) a specific objection or (2) the tendering of an instruction in such a manner which presents the party’s position “fairly and adequately” to the trial judge. RCr 9.54(2). In Grooms v. Commonwealth, 756 S.W.2d 131 (Ky.1988), we stated:

In many cases, as in this one, counsel submit a raft of tendered instructions, any one of which may be overlooked by the trial court. The failure to instruct upon a matter which would have been surely instructed upon if the oversight had been called to the attention of the court by counsel is not error.

Id. at 40. In this case, we find that Appellant did not meet his duty to “fairly and accurately” present his position on this issue to the trial court and thereby preserve this issue for review. See Davis v. Commonwealth, 967 S.W.2d 574, 581 (Ky.1998).

Appellant’s counsel also objected to the wording of certain jury instructions both during and after the Commonwealth’s closing argument. Among his arguments, Appellant raises an interesting issue regarding a disparity between Commonwealth v. Hager, 41 S.W.3d 828, 846 (Ky.2001), 1 Cooper, Kentucky Instructions to Juries (Criminal) § 11.07 (4th ed. Anderson 1993), and KRS 503.050. Appellant argues the instruction on self-protection in this case should have stated that such a defense is available if Appellant “believed Byron Pruitt was there about to use physical force upon him,” such wording being in conformity with Cooper, supra, and Hager, supra. The jury instructions chosen by the trial court specified that a self-protection defense was available if Appellant believed Pruitt “was about to use unlawful physical force upon him,” such wording being in conformity with KRS 503.050. (Emphasis added).

Yet, Appellant failed to timely preserve his arguments for review as required by RCr 9.54. Commonwealth v. Collins, 821 S.W.2d 488 (Ky.1991) (RCr 9.54(2) requires arguments or objections to be made prior to the time the Court instructs the jury in order to preserve the issue for review on appeal). Since preservation is lacking, we decline to address his arguments any further since none of them warrant review pursuant to RCr 10.26.

V. Sufficiency of the Evidence

Appellant claims the trial court erred when it overruled his motions for directed verdicts on the first degree burglary of Ziegler’s garage and on the use of first degree burglary as an aggravating sentencing factor in the murder of Pruitt. When considering whether the trial court erred in the denial of a directed verdict, this Court must consider all evidence favoring the Commonwealth as true and from that evidence, determine whether it is sufficient to induce a reasonable jury to believe beyond a reasonable doubt that the defendant is guilty of each and every element of the crime. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

During the penalty phase of Appellant’s trial, the trial court submitted one aggravating circumstance for the jury’s consideration — whether Appellant was engaged in the commission of a first degree burglary at the moment he shot Pruitt. Appellant argues there was insufficient evidence to support the submission of this aggravating circumstance to the jury and accordingly, Appellant’s murder sentence must be vacated. For the reasons set forth herein, we agree.

KRS 532.025(3) states that a recommendation of death, or imprisonment for life without benefit of probation or parole, or imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years shall not be imposed unless at least one statutory aggravating circumstance is found beyond a reasonable doubt and designated in writing. In this case, Appellant’s sentence of life without benefit of probation or parole until he has served a minimum of twenty-five (25) years was based on the statutory aggravating factor that Pruitt was murdered while Appellant was engaged in the commission of a first degree burglary. KRS 532.025(2)(a)(2).

KRS 511.020 defines burglary in the first degree as follows:

(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.

The evidence most favorable to the Commonwealth shows that upon being confronted by Ziegler in his garage, Appellant fled from the scene and was chased into the woods by Ziegler. Ziegler reported that he lost track of Appellant and returned to his residence to telephone emergency services. Appellant returned to his accomplice’s vehicle and the pair drove to Appellant’s home. Shortly after returning home, Appellant asked his accomplice, Edwards, to drive him back to the area in order to recover a toolbox he had left at the scene. When Edwards refused to drive back to the scene, Appellant was able to persuade his sister, Plank, to drive him. Between sixteen and thirty minutes after first being confronted by Ziegler, Appellant and Plank returned to the area surrounding Ziegler’s house. It was upon this return to the area that Pruitt was murdered. The Commonwealth argues that Appellant’s return to the area of the burglaries was merely a continuation of the burglary that was in progress when Appellant was first confronted by Ziegler. We disagree.

When interpreting the provisions of the Kentucky penal code, KRS 500.030 states, “All provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law.” In Bailey v. Reeves, this Court stated, “[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.” 662 S.W.2d 832, 834 (Ky.1984).

The words of the first degree burglary statute, when read as a whole, clearly define the beginning point and the ending point of a first degree burglary in Kentucky. The statute indicates that a first degree burglary begins “when in effecting entry” into a building, continues “while in the building,” and ends at the conclusion of “the immediate flight therefrom.” KRS 511.020(1). Since a first degree burglary ceases upon the conclusion of a perpetrator’s “immediate flight” from the building, the determinative question for this Court is whether Appellant was still engaged in the first degree burglary of Ziegler’s garage when he returned to the area after an initial flight therefrom After careful review, we hold that he was not.

In Baker v. Commonwealth, 860 S.W.2d 760, 761 (Ky.1993), this Court was presented with the question of whether a burglar who was apprehended shortly after fleeing from the residence he had just burglarized was still engaged in “immediate flight therefrom” when he was apprehended by bystanders. In Baker, the defendant threatened use of a dangerous weapon not while at the scene of the burglary, but at the time he was apprehended by bystanders. Id. The Baker Court stated:

It seems clear that the aggravating factors in the first degree burglary statute were enacted to punish those who harm or threaten harm to those at the scene of a burglary. The statute does not limit itself to consideration of acts which take place within the curtilage of the dwelling being burglarized, but is written to protect occupants, neighbors, and passers-by.

Id. at 761-62. The Court ultimately concluded that the defendant was engaged in “immediate flight” at the time he was apprehended by bystanders. Id.

In this case, a bystander was murdered at or near the scene of the burglary, which comports with the general types of circumstances and victims the statute was intending to protect. See Baker, supra. Recently, in Cosby v. Commonwealth, 147 S.W.3d 56, 59-60 (Ky.2004), this Court determined that a defendant who committed a crime while awaiting sentencing on a criminal charge to which he had previously pled guilty could not be sentenced to a concurrent sentence for the two crimes pursuant to KRS 533.060(3). KRS 533.060(3) prohibits concurrent sentencing for two crimes when one of the two crimes was committed while the defendant was “awaiting trial” for the other crime. Cosby held that in order to avoid an absurd result and to uphold the integrity and fair import of the statute, it was reasonable and necessary to construe the term “awaiting trial” to include a defendant who was technically “awaiting sentencing.”

Yet, this case is quite distinguishable from the facts in Baker, supra, and the policy reasons set forth in both Baker and Cosby, supra. In Baker, the defendant was in the process of fleeing from the scene of the crime, not returning, when he was confronted by bystanders. According to the American Heritage Dictionary of the English Language (4th ed.2000), the word “flight” is defined as “the act or an instance of running away, an escape.” The word “immediate” is defined as “occurring at once; instant” and “of or near the present time.” Id.

Because it is an “act” or an “instance,” flight cannot continue ad infinitum, but must come to a point of some conclusion. In People v. Thongvilay, 62 Cal.App.4th 71, 72 Cal.Rptr.2d 738 (1998), the California Appellate Court stated:

A burglary is in progress after the original entry while the perpetrator is fleeing in an attempt to escape. Likewise, it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain stolen property. A burglary is complete when the perpetrator has eluded any pursuers and reached a place of temporary safety.

Id. at 78, 72 Cal.Rptr.2d at 742 (quoting with approval the jury instructions given by the trial court) (emphasis added).

When considering what the fair import of the term “immediate flight” might be, it is logical and practical to assume that an “immediate flight” is ceased for the purposes of determining the completion of a first degree burglary at the point when the perpetrator has reached a place of temporary safety after having eluded any pursuers and escaped from the scene (which includes the immediately surrounding area). The concept of a perpetrator returning to the scene of the crime once that perpetrator has successfully completed an initial flight from that scene is too incongruous with the concept of “immediate flight” to be fairly read into the statute.

Furthermore, reading the circumstances of this case into the statute would create an indefinite and arbitrary law. For instance, if returning to the scene of a burglary to retrieve incriminating evidence after one has successfully fled from that scene is compatible with the concept of “immediate flight,” it follows that this Court would next have to arbitrarily set some kind of temporal limitation on the perpetrator’s return, such as an hour or a day, in order to avoid reading the term “immediate” completely out of the statute. Moreover, a contrary result in this case would make it nearly impossible to determine when such a return to the scene is the continuation of a past crime or the beginning of a new crime.

Finally, we note that reading the circumstances of this case into the term “immediate flight” would serve no necessary procedural or policy purpose since such circumstances are sufficiently provided for in other areas of the Kentucky penal code. For example, if Appellant’s return to the area of the crime was for the purpose of re-entering Ziegler’s garage or some other building with the intent to commit a crime, Appellant could have been charged with criminal attempt to commit first degree burglary. See KRS 506.010; Commonwealth v. Prather, 690 S.W.2d 396 (Ky.1985) (upholding attempted robbery conviction where defendant was arrested while driving to the place to be robbed). As it was, Appellant was not charged with any such additional crimes because his tool box was not located inside any building or dwelling, but was found on a garbage can near Ziegler’s garage door.

In sum, we find that a first degree burglary pursuant to KRS 511.020 ceases upon the conclusion of a perpetrator’s “immediate flight” from the building. Appellant’s flight necessarily ended in this case when he reached his home after successfully escaping from Ziegler’s garage and the immediately surrounding area. Accordingly, there was insufficient evidence to support the jury’s determination that the murder of Pruitt was committed while Appellant was engaged in the commission of a burglary in the first degree. Appellant’s sentence for murder is vacated and remanded to the trial court for a new penalty phase trial on noncapital murder.

Since the first degree burglary of Ziegler’s garage ceased at the point Appellant reached his home after his initial flight from the scene of the burglary, we next address Appellant’s argument that there was insufficient evidence to support his conviction of first degree burglary of Ziegler’s garage. He contends it was unreasonable for the jury to conclude that Appellant was armed with a deadly weapon during that burglary.

Ziegler testified at trial that when he saw Appellant inside his garage, he perceived Appellant to have a weapon in his hand. In addition, it is undisputed that Appellant had a handgun when he returned to the area shortly after the completion of the first degree burglary. Appellant alleges this evidence is insufficient because Ziegler could not affirmatively state that the item in Appellant’s hand was a handgun. We disagree. “It is a well-settled rule in this Commonwealth that a conviction may be obtained on circumstantial evidence.” Baker v. Commonwealth, 860 S.W.2d 760, 761 (Ky.1993) (citation omitted). Despite Ziegler’s inability to affirmatively state that the item he saw in Appellant’s hand was a handgun, we find that when considered in its entirety, the evidence is sufficient to convince a reasonable juror that Appellant was armed with a deadly weapon during the burglary of Ziegler’s garage. See id. (evidence that perpetrator was armed immediately before and immediately after perpetrator’s presence in the home of victim was sufficient to establish that perpetrator was armed while in the home).

Finally, since Appellant cannot be subjected to a capital sentence on retrial, we need not address Appellant’s final argument which contends the trial court erred when it declined to give an instruction on self-defense as a mitigating circumstance during the capital sentencing phase of his trial.

The judgment of the Jefferson Circuit Court is affirmed in part; and vacated and remanded in part for resentencing on non-capital murder.

COOPER, GRAVES, JOHNSTONE, and ROACH, J.J., concur.

COOPER, J., concurs in a separate opinion in which JOHNSTONE, J., joins.

SCOTT, J., dissents in a separate opinion in which LAMBERT, C.J., and WINTERSHEIMER, J., join.

Concurring opinion by

Justice COOPER.

I concur fully in Justice Graves’s well-reasoned majority opinion. I write separately only to address Appellant’s unpreserved claim that the self-protection instruction erroneously included the statutory language that he was privileged to use physical force against Byron Pruitt “if ... he believed that Byron Pruitt was there about to use unlawful physical force against him.” Appellant complains that this instruction, while conforming to the language of KRS 503.050(1), does not conform to the language of the specimen self-protection instruction recommended in 1 William S. Cooper, Kentucky Instructions to Juries (Criminal) § 11.07 (4th ed.1993), and Commonwealth v. Hager, 41 S.W.3d 828, 846 (Ky.2001). KRS 503.050(1) provides:

The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(Emphasis added.) Generally, an instruction that follows the language of the statute is not deemed erroneous. McGuire v. Commonwealth, 885 S.W.2d 931, 936 (Ky.1994) (“instructions should be stated within the context of the statutory framework”). Nevertheless, in their 1975 treatise on criminal instructions, Justice Pal-more and Professor Lawson explained the reason for omitting the word “unlawful” from the specimen instruction as follows:

The requirement of unlawfulness is omitted because in the usual case there will be no issue as to whether the victim of the defendant’s assault was acting pursuant to some legal privilege to inflict force upon his person. The typical exception would occur in an arrest situation.

John S. Palmore & Robert G. Lawson, 1 Kentucky Instructions to Juries (Criminal) § 10.01 cmt., at 341 (3rd ed.1975).

Palmore & Lawson cited Owens v. Commonwealth, 430 S.W.2d 325, 326-27 (Ky.1968), as illustrative of “the pitfalls of using the word ‘unlawful’ in instructions.” Id. In Owens, the defendant shot Marcum while allegedly defending himself against an unprovoked assault by McGlammer. The defendant did not claim that he intended to shoot McGlammer but mistakenly shot Marcum. See KRS 503.120(2). Instead, he claimed that the gun accidentally discharged during his scuffle with McGlammer. The trial court instructed the jury that it should find the defendant not guilty if it believed that the killing “was not the unintentional and careless discharge of a pistol by him in doing an unlawful act[ such as scuffling with Carroll McGlammer] ....” Id. at 326-27 (emphasis partially added). Our predecessor court reversed the defendant’s conviction of voluntary manslaughter and remanded for a new trial, holding that if Appellant was acting in self-defense when scuffling with McGlammer, such scuffling “was not an unlawful act, although the court peremptorily instructed the jury that it was.” Id. at 327.

As Palmore & Lawson suggested, situations when a defendant would believe the victim was about to lawfully use physical force against him are rare. Instances of lawful use of physical force are defined in KRS Chapter 503, “General Principles of Justification,” and include force used by the victim in self-protection when the defendant was the initial aggressor, KRS 503.060(3); force provoked by the defendant, KRS 503.060(2); force used by a police officer or a person acting under official authority in effecting a lawful arrest, KRS 503.060(1), KRS 503.090; force used to prevent suicide or to prevent the commission of a crime involving or threatening serious physical injury to person, substantial damage to or loss of property, or any other violent conduct, KRS 503.100; or force used by a parent, guardian, teacher, official at a correctional institution, operator of a common carrier vehicle, doctor, or other therapist under circumstances specified in KRS 503.110. When there is evidence of such an exception to the privilege to act in self-protection, it is usually identified as such in a separate instruction or by a proviso to the self-protection instruction, itself. See, e.g., Cooper, supra, §§ 11.11 — 11.13, 11.18B, & 11.20 — 11.27. For example, under the facts of this case, if the trial court believed there was sufficient evidence for the jury to find that Appellant believed Pruitt was about to use physical force against him for a lawful purpose, the following specimen instruction would have been appropriate:

INSTRUCTION NO_SELF-PROTECTION
Even though the Defendant might otherwise be guilty of Murder under Instruction No._, if at the time the Defendant killed Byron Pruitt (if he did so), he believed that Pruitt was then and there about to use physical force upon him, he was privileged to use such physical force against Pruitt as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in so doing only if he believed it to be necessary to protect himself from death or serious physical injury at the hands of Pruitt.
Provided, however, if you further believe beyond a reasonable doubt that the Defendant believed Pruitt intended to use physical force against him for the purpose of preventing him from committing a crime involving or threatening substantial damage to or loss of property, then the Defendant was not so privileged and is not entitled to the defense of self-protection.

KRS 503.100(l)(b); cf. Cooper, supra, § 11.13.

Use of this or a similar specimen would have eliminated any speculation by the jury as to what conduct by Pruitt would have been lawful and whether Appellant believed that Pruitt’s threatened use of physical force against him was for a lawful purpose. E.g., under the trial court’s instruction, the jury may have concluded that Appellant believed that Pruitt intended to arrest him for his previous crimes and that such was a lawful purpose for the use of physical force — which, of course, would have been incorrect since Pruitt was neither a police officer nor acting under official authority. If, as is usually the case, there is no evidence that would support a finding by the jury that the defendant believed that the victim’s threatened use of physical force was lawful, use of the specimen instruction recommended in Pal-more & Lawson, supra, § 10.01, in Cooper, supra, § 11.07, and in Hager will avoid any such speculation.

However, if there is evidence from which the jury could find that the defendant believed the victim’s threatened use of physical force was lawful, the nature of the lawful conduct should be identified. Assuming there was sufficient evidence from which the jury could have found that Appellant believed Pruitt intended to use physical force against him for the purpose of preventing him from committing a crime involving substantial damage to or loss of property, the instruction given by the trial court was not erroneous, just insufficiently specific, thus permitting unwarranted speculation by the jury. Appellant did not object to the instruction on that ground and did not tender a clarifying instruction, such as the specimen described, supra. RCr 9.54(2).

JOHNSTONE, J., joins this concurring opinion.

Opinion by

Justice SCOTT,

concurring in part and dissenting in part.

Although I concur with the majority on all other issues, I respectfully dissent from the issue of whether Byron Pruitt was murdered during the commission of a First-Degree Burglary.

The majority relies on Baker v. Commonwealth, 860 S.W.2d 760 (Ky.1993), in support of its holding on the definition of “immediate flight,” but distinguishes the facts of the Baker case from the facts of this case to overturn the jury’s verdict.

“It seems clear that the aggravating factors in the first-degree-burglary statute were enacted to punish those who harm or threaten harm to those at the scene of a burglary. The statute does not limit itself to consideration of acts which take place within the curtilage of the dwelling being burglarized, but is written to protect occupants, neighbors, and passers-by.” Baker at 761-762. I don’t read any language in Baker to suggest that “immediate flight” has to be the cookie cutter burglary suggested by the majority, i.e., “in and out” of a building, without deviation.

Not only does Baker recognize the statute’s intention to protect people like Byron Pruitt, it also recognizes that the question of whether a death occurs during an immediate flight is one for the trier of fact. Furthermore, Baker relies on several like cases from outside this jurisdiction, including People v. Ruiz, 136 A.D.2d 493, 523 N.Y.S.2d 814 (1988), for the presumption that a burglar can arm himself at anytime during the immediate flight from the dwelling and that a defendant may be properly convicted of First-Degree Burglary in that instance. Id. at 762. Interestingly, the Ruiz case goes on to hold, in no uncertain terms, that “[t]he question of whether an act takes place in ‘immediate flight’ from a felony is generally left to the sound discretion of the jury pursuant to an appropriate charge.” Id. at 495, 523 N.Y.S.2d 814; citing People v. Gladman, 41 N.Y.2d 123, 390 N.Y.S.2d 912, 359 N.E.2d 420 (N.Y.1976) (felon held to have been in “immediate flight” some 15 minutes after and one-half mile away from the scene of a robbery); see also People v. Sturgis, 112 A.D.2d 757, 492 N.Y.S.2d 257 (1985) (suspect apprehended in New Jersey after burglary in New York; questions regarding causation and whether the deaths occurred in the course of “immediate flight” from the commission of the burglary were questions of fact for the jury).

The Appellant argues that there was insufficient evidence to overcome a directed verdict on the First-Degree Burglary charge and therefore its use as an aggravating sentencing factor in the murder of Pruitt was error. In evaluating the evidence presented at trial, in conjunction with the standard for a directed verdict in Benham, 816 S.W.2d 186, 187 (Ky.1991) (under the evidence as a whole and assuming the evidence for the Commonwealth is true, it would be clearly unreasonable for a jury to find guilt, then directed verdict warranted), the trial court acted properly in overruling the Appellant’s motion for directed verdict and the jury was entitled to decide the issue.

The jury knew of the burglary at Zeig-ler’s house, believed it was the Appellant and knew Pruitt was killed soon thereafter, close to the scene of the burglary. Thus in any event, facts were available from which the jury could reasonably believe Pruitt was killed by the Appellant while in “immediate flight” — even under the standard adopted by the majority opinion. What the majority opinion does however, is require the jury to believe the Appellant’s witnesses “that immediate flight” had ceased. However, this itself is error since the jury is not required to believe the testimony of any particular witness, see Davis v. Commonwealth, 270 Ky. 53, 109 S.W.2d 2, 3 (1937); a point which the majority now mandates. During their deliberation, the jury sought guidance from the trial court on the issue of “immediate flight” and was properly instructed by the trial court to evaluate the evidence presented and according to the tendered instructions, make a determination as to whether Byron Pruitt was killed during the commission of a First-Degree Burglary. The jury did just that and, absent some error not asserted in this appeal, we should not disturb the jury’s verdict.

Further, I do not find anything m a plain reading of KRS 511.020 to suggest a burglary is complete, or finished, if a perpetrator, intends to and does, return to the scene of the burglary to finish the job, fifteen to twenty minutes later; so as to retrieve his burglary tools — in order to complete the escape.

Just as the Appellant’s return to 9000 Grand Point Court to retrieve the generator he stole was the completion of his initial burglary, his return to 7613 Par-kridge Trace to get his tool box would have been the completion of his second burglary, and the attempted return to complete this second burglary resulted in the death of an innocent man.

Not having completed the burglary, and intent on hanging around to re-acquire his burglary tools from the scene, he was still in “immediate flight.” The fact that he had to get another driver did not end the “immediate flight.” Under facts such as these, “immediate flight” should never be held to end until the perpetrator completes or gives up on the burglary and finally attempts to flee the scene to apparent safety. That did not happen here, as the death of Mr. Pruitt proves.

I would hold that the Appellant was still in the course of his “immediate flight” from the Zeigler’s home when he killed Pruitt. The Appellant failed to present any rational argument sufficient to warrant disturbing the jury’s verdict on the facts of this case. Thus, I would affirm the Appellant’s convictions and sentences on all counts.

LAMBERT, C.J., and WINTERSHEIMER, J., joins this opinion.

      . The Commonwealth argues in the alternative that even if Appellant’s return to the area of the burglaries was not a continuation of the first degree burglary of Zeigler's garage, there is sufficient evidence to support the aggravating factor in this case based on a theory that Appellant’s return to the area constituted attempt to commit a second first degree burglary. There does not appear to be sufficient evidence to support this theory in the record and even if there was sufficient evidence to support this theory, this Court does not allow parties to change their theories on appeal or to vary the theme they offered at trial. See Smith v. Commonwealth, 41 S.W.3d 458, 461 (Ky.App.2001) (citing Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976)). Accordingly, we decline to address this argument.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Jody R. HINES and Vern U. Hines, Jr., Plaintiffs-Appellants, v. William E. SMITH and Jessie L. Smith, Defendants-Respondents, and Old Kinderhook Development Co., LLC., Plaintiff-Respondent, v. William E. Smith and Jessie L. Smith, Defendants-Respondents, and Jody R. Hines, Defendant-Appellant.
    No. 26451.
    Missouri Court of Appeals, Southern District, Division One.
    July 29, 2005.
    Motion for Rehearing or Transfer Denied Aug. 17, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Susan K. Roach, Clayton, MO, for Appellants.
    James E. Baldwin, Lebanon, MO, for Respondents William & Jessie Smith.
    C. Bradley Tuck, Springfield, MO, for Respondent Old Kinderhook Development Co., LLC.
   NANCY STEFFEN RAHMEYER, Judge.

This appeal is the result of litigation between Jody and Vern Hines (“the Hines-es”), Ed and Jessie Smith (“the Smiths”), and Old Kinderhook Development Company, L.L.C. (“Old Kinderhook”), over a contract for deed entered between Jody and her father, Ed, on property now owned by Old Kinderhook. The litigation commenced with Jody and her husband, Vern, filing a petition against Ed and his wife, Jessie, asking for relief on four counts. Count I was an action for specific performance of the contract for deed. Count II requested damages for the denial of use and enjoyment of the property after Ed changed the locks on the property. Count III was a conversion action alleging that the Smiths converted a boat dock and lift when they moved the dock and lift to another property. Count IV requested that the court partition the property, order an accounting of the rents, issues, and profits the Smiths obtained from the property, and divide the rents, issues, and profits between the two couples according to their respective interests.

The Smiths filed a counterclaim against the Hineses, which included two counts. Count I was a breach of contract action, alleging that Jody never paid the utility bills for December 1996 and January 1997 and the tax statements for 1996, and that Jody did not make loan payments or insurance, tax, and utility reimbursements in a timely fashion as required by the contract. Count II was a declaratory judgment action in which the Smiths sought to clarify the rights, obligations, and liabilities of the parties under the Contract for Deed.

The Hineses answered the counterclaim by denying that Jody failed to make the required payments. They further asserted that Ed breached the contract himself in November 1996, prior to any alleged breach by Jody, when he executed a deed conveying the property to Ed Smith and Jessie Smith, husband and wife.

All of the lawsuits were consolidated for trial. The trial court denied all four counts of the Hineses’ petition; it granted the Smiths’ counterclaim on the breach of contract action against the Hineses and denied the declaratory judgment action. The Hineses appeal the denial of all four of their counts; however, they do not appeal the grant of judgment in favor of the Smiths for a breach of contract. As such, it is unappealed and, therefore, a final judgment. Bishop v. Shelter Mut. Ins. Co., 129 S.W.3d 500, 502 n. 1 (Mo.App.S.D.2004). That failure is dispositive on the issues raised in the Hineses’ point relied on.

The point relied on states:

THE TRIAL COURT ERRED IN [ITS] JUDGMENT DENYING COUNT I OF [APPELLANTS’] PETITION FOR SPECIFIC PERFORMANCE, COUNT II FOR LOSS OF ENJOYMENT, COUNT III FOR CONVERSION[,] COUNT IV FOR AN ACCOUNTING AND PARTITION AGAINST RESPONDENTS [SMITHS], [APPELLANTS’] COUNTERCLAIM AGAINST RESPONDENT OLD KINDERHOOK AND [APPELLANTS’] CROSSCLAIM AGAINST [RESPONDENTS] [SMITHS] FOR THE REASON THAT THE APPELLANTS WERE NOT IN DEFAULT OF THE CONTRACT FOR DEED SINCE APPELLANTS SUBSTANTIALLY PERFORMED THEIR OBLIGATIONS UNDER THE CONTRACT AND RESPONDENT WILLIAM SMITH CONVEYED THE PROPERTY TO RESPONDENT JESSIE SMITH IN VIOLATION AND BREACH OF THE CONTRACT FOR DEED.

A brief review of the facts is necessary to our analysis. Ed and Joan Smith purchased a vacation home in the Lake of the Ozarks area on June 17, 1977. Their daughter, Jody, and her husband, Vern, also used the vacation home. In 1984, the Hineses entered into a verbal agreement with Ed to purchase a half-interest in the home. The agreement also included a provision specifying that fees for expenses, maintenance, taxes, and insurance would be shared equally. Jody began making payments on the home on April 15, 1984.

Joan became ill in 1994; she died in September 1995. Before Joan’s death, Jody and Ed had agreed that they needed to execute a written contract for deed. The written contract, which was only between Jody and Ed, memorialized the original verbal agreement between the parties and recognized that Jody had been making payments on the property since April 15, 1984. Jody agreed, pursuant to the contract, to purchase her half-interest in the property. The contract also provided that the parties would equally share costs for expenses, maintenance, taxes, and insurance. Additionally, the contract included the following default clause:

If Purchaser shall fail for a period of thirty (30) days to 1) pay Seller any of the sums herein agreed to be paid after such sums are due or 2) comply with any of the covenants on Purchaser’s part to be kept and performed, then Seller shall be released from his obligation to convey the property and Purchaser shall forfeit all right thereto and all payments theretofore made by Purchaser under this contract shall be considered as compensation for the use and occupancy of the property and shall be retained by Seller. The thirty (30) day period of Purchaser’s failure to perform Purchaser’s obligations hereunder shall be measured from the tenth (10th) day following receipt of notice of default by Purchaser from Seller.
The extension of time of payment of any one or more installments as provided herein or the permitting of same to remain due for a longer period than herein provided or the waiver of any rights of the Seller under this Contract shall not preclude or prevent Seller from treating this Contract at an end for any subsequent breach.

In another clause, the contract prohibited Ed from conveying the property:

Seller, for so long as this contract is executory and Purchaser is not in default hereunder, shall not convey the property described herein or encumber it in any way or otherwise affect record title to the property as it now appears in the records of the Camdenton [sic] County Recorder’s Office in the State of Missouri.

After Jody’s mother passed away, Jody’s relationship with Ed deteriorated. The Smiths married on February 14, 1996. The parties could not agree about how and when the lake property should be used and Jody authorized Ed to sell the property to the Skol de Terre company. In 1996, Ed attempted to sell the property to Skol de Terre, but the sale did not materialize. Jody admitted that she had given Ed the authority to make the initial sale to Skol de Terre, but claimed she did not authorize a subsequent sale to Old Kinderhook. Additionally, she testified that although she never specifically revoked the authority she granted regarding the initial sale, she believed any authority she had given had been revoked when the sale to Skol de Terre did not materialize. Ed admitted that he executed a deed in November 1996 conveying the property to Ed Smith and Jessie Smith, husband and wife.

In 1997, a dispute arose regarding the timeliness of Jody’s payments. Ed claimed he sent the utility bills for December 1996 and January 1997 and the tax statement for 1996 to Jody via her attorney in March 1997. On May 5, 1997, Ed’s attorney sent a letter to Jody’s attorney requesting a payment for Jody’s share of the December 1996 and January 1997 utility bills. Jody admitted that she did not timely pay the utility bills for December 1996 and January 1997, but she claimed that she never received the bills from Ed. When confronted with the May 5, 1997 letter stating that Ed had sent the utility bills to her attorney in March, Jody responded that Ed normally sent the bills to her, not her attorney, and that because the bills were sent to her attorney, she had not seen them. She further explained that she did not get the bills unless they were mailed to her. Similarly, she asserted that because the May 5 letter was never sent to her, she had not seen it.

Ed’s attorney subsequently notified Jody that Ed had not received several payments from Jody as of May 14, 1997. Jody then wrote a letter to Ed’s attorney on May 23, 1997, advising him that she would mail replacement checks for the missing payments. She mailed the checks, but Ed did not accept the payments and notified her that she was in default. On June 9, 1997, Ed’s attorney notified Jody that she was in default, the contract was forfeited, and Ed was changing the locks on the property. After Ed changed the locks, the Hineses no longer had access to the property and could not use the property as they had prior to the dispute.

The Smiths subsequently entered into an option to purchase real estate contract for the sale of the property to Old Kinder-hook. The contract provided that Old Kin-derhook had the exclusive right and option to purchase the property until May 31, 2000, and that Old Kinderhook would lease the property for a period of at least 30 months. Old Kinderhook began leasing the property from the Smiths and eventually exercised its option to purchase the property. Jody was not present at the closing and never executed a quit claim deed to Old Kinderhook.

As noted, the trial court found Jody to be in breach of the contract triggering a default of the contract. Since the Hineses have not appealed the judgment against Jody on the Smiths’ counterclaim, the finding that she breached the contract for deed cannot be attacked here and the un-appealed judgment against Jody must be recognized as an adjudication, adverse to her, of the issues raised in the counterclaim. See Hardin v. Ray, 404 S.W.2d 764, 769 (Mo.App.S.D.1966) (holding that findings that are unassailed on appeal cannot be attacked); see also McDown v. Wilson, 426 S.W.2d 112, 118 (Mo.App.S.D.1968) (holding that an unappealed judgment must be recognized as an adverse adjudication of issues raised in that count).

Each of the Hineses’ claims on appeal stems from a right to possession or damages under the contract. As to Count I for specific performance, the court found that Jody failed to pay her one-half of the utilities incurred on the lake property in a timely manner and Ed, therefore, properly forfeited the contract. The court specifically found that Jody had been informed of the amount of the utility expenses. Additionally, due to the proper forfeiture of the contract, Ed had the right to sell and convey the property to any third party.

Likewise, the court found that the Hineses were not deprived of the use, enjoyment, and possession of the premises claimed in Count II because the locks on the lake property were not changed until after Ed forfeited the Contract for Deed.

As for Count III, the action for conversion of a boat lift, the trial court found that the lift was attached to the dock, which was attached to the real estate governed by the Contract for Deed. When Ed forfeited the Contract for Deed, the dock became a fixture and became the sole property of Ed.

The court also denied the Count IV partition and accounting claim. The court found that the Smiths made an accounting when they conveyed the real estate to Old Kinderhook on February 23, 2002. The court further found that the Smiths took the amount of rent collected into consideration when they calculated the total figure for the Hineses to receive from the closing of that transaction. The court also found that the real estate could not be partitioned because neither party had an interest in the land because forfeiture extinguished the Hineses’ interest in the land and made the Smiths the sole owners. When the Smiths subsequently conveyed their entire interest to a third party, neither the Smiths nor the Hineses owned anything for the court to partition.

Likewise, on the cross-claim filed by Jody against Ed, if the Contract for Deed was properly forfeited for non-payment of utilities expenses, Jody could not be deprived of the use and enjoyment of the subject real estate. Because all of the Hineses’ claims against Old Kinderhook derived from a claim of a valid contract being in existence between Jody and Ed at the time Old Kinderhook entered into the option contract with the Smiths, the Hines-es cannot assert any claim for possession of the property or for damages for the loss of use and possession of the property.

Therefore, although the Hineses’ point relied on claims six trial court errors because it incorrectly determined that Jody breached the contract by failing to make timely utility payments as required by the Contract for Deed, the failure to claim trial court error in the grant of the Smiths’ breach of contract claim disposes of the case. Because the Hineses do not challenge the trial court’s ruling that Jody breached the contract in their point relied on, that ruling stands. Thus, the Hineses’ point suggests a resolution in which our potential ruling would conflict with the unchallenged and final judgment finding Jody in breach of the contract. We, therefore, affirm the judgment of the trial court.

GARRISON, P. J., and PREWITT, J., concur.

      . We refer to the parties by their first names for ease of discussion only and intend no disrespect by using this convention.

      . The dock was previously attached to the shoreline of the subject property, and the Hineses claimed that they were the sole owners of the lift and half-owners of the boat dock.

      . Old Kinderhook subsequently filed a petition against the Smiths and Jody asking for specific enforcement of a contract to purchase real estate to which the Smiths consented. (Vern was later added to the lawsuit as an indispensable party.) Jody moved to dismiss the lawsuit, contending that the option contract was invalid because it was not signed by her or anyone authorized to sign it on her behalf and filed a counterclaim against Old Kinderhook for recovery of property, monthly rents and profits, damages, and costs. She also filed a cross-claim against Ed that sought to recover actual and punitive damages for the loss of use and enjoyment of the premises as well as attorney fees, expenses and costs for defending the lawsuit against Old Kinderhook. Because the resolution of this appeal is determined by the lawsuits between the Smiths and the Hineses, we will not discuss Old Kinderhook’s action in greater detail.

      . The point relied on is deficient in that it presents six disparate claims of error. The point challenges six different trial court rulings, including the court's rulings on all four counts of the Hineses' petition, the Hineses’ counterclaim against Old Kinderhook, and the Hineses’ cross-claim against the Smiths. Although each of these claims has its basis in the same claim that Jody did not breach the contract, the point as written does not explain how the multiple allegations of error are related to a single legal issue. Each of the trial court rulings has its basis in separate legal principles. A point relied on that combines allegations of error not related to a single issue violates Rule 84.04. Martin v. Reed, 147 S.W.3d 860, 863 (Mo.App.S.D.2004). Improper points relied on, including multifarious points, preserve nothing for appellate review. Id. We address the merits of the point relied on because both the court and Respondents were able to discern the argument made by the Hineses.

      . Skol de Terre is the predecessor in interest to Old Kinderhook.

      . We do not address the Hineses’ second point as it challenges the denial of punitive damages. If actual damages are not warranted, punitive damages cannot be awarded. Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 686 (Mo.App. W.D.1989).