text:
    Paul Max PACE, Appellant, v. Linda Ruth Thomas PACE, Appellee.
    No. 05-03-00520-CV.
    Court of Appeals of Texas, Dallas.
    April 22, 2005.

      Jimmy L. Verner, Jr., Verner & Brum-ley, Dallas, for appellant.
    Georganna L. Simpson, Law Office of Georganna L. Simpson, Dallas, for appel-lee.
    Suzanne Duvall, Dallas, Attorney-Mediator.
    Before Justices FITZGERALD, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Paul Max Pace appeals the division of property in this divorce case. Pace challenges the trial court’s characterization of certain property as his wife’s separate property and argues this characterization prevented a just and right division of the couple’s property. In eight issues, Pace argues (1) there is no evidence to support the trial court’s findings of fact that the couple’s Harvest Hill home and the assets in the Linda Ruth Thomas Management Trust (Management Trust) are Thomas’s separate property, (2) the trial court erred by granting partial summary judgment in favor of Thomas and holding that the A.G. Edwards investment account (172 account) is Thomas’s separate property because Thomas failed to rebut the community property presumption, and (3) the trial court abused its discretion in dividing the community estate because the mischarae-terization of the Harvest Hill house and the 172 account as Thomas’s separate property prevented a just and right division of the property. We affirm.

I. Factual and ProceduRal Background

Thomas and Pace were married on March 8, 1997. Both had been married before and both had adult children from their previous marriages, but they had no children together. After four and one-half years of marriage, the parties separated and Thomas filed for divorce. Pace filed a counterpetition for divorce asserting his separate property and equitable interest claims as well as a claim for reimbursement against Thomas’s separate property estate.

A.Thomas’s Inheritance

Thomas inherited her parents’ estates, consisting mostly of bonds and other securities, when they died in the mid-1990s. She invested this inheritance in the 172 account prior to her marriage to Pace. At the time of her marriage to Pace, the inheritance was valued at $2.7 million.

B.No Signed Prenuptial Agreement

Before they were married, Thomas had her attorney prepare a prenuptial agreement to protect her assets and asked Pace to sign it. Pace made revisions to the agreement and, a few days before the wedding, told Thomas that he wanted his nephew, an attorney, to review the agreement before he signed it. Because there was not enough time for the attorney to review the prenuptial agreement before the wedding, Pace told Thomas he would sign it when they returned from their honeymoon. Thomas again asked Pace to sign the prenuptial agreement after the honeymoon, but he refused.

C.Creation of the 204 Account and the Management Trust

Twenty-three days after they were married and after Pace refused to sign the prenuptial agreement, Thomas instructed A.G. Edwards to “sweep” all dividends, interest, and income from the 172 account and place the income in a new account (204 account) so that no community property would accrue in the 172 account.

About three years later, Thomas instructed her attorney to set up the Management Trust with Thomas as the donor, trustee, and sole beneficiary to segregate Thomas’s separate property and to protect her from possible third party liability. The 172 account was transferred into the Management Trust and A.G. Edwards continued to “sweep” all dividends, interest, and income from that account into the 204 account.

D.The Harvest Hill House

When they were first married, Thomas and Pace lived in Thomas’s house which she owned and lived in before their marriage. Two months after they were married, the Harvest Hill house was purchased. Thomas wrote a check for $1,000 as earnest money for the Harvest Hill house and a check for $200 for an inspection. Both checks were drawn on an account bearing only Thomas’s name. Prior to closing, Thomas wired $194,102.53 from the 172 account to the title company in full payment of the Harvest Hill house. No credit or notes were obtained to purchase the house, and Pace did not contribute any money toward the purchase of the house.

A few days before closing, Pace told Thomas that he wanted to be on the deed to the Harvest Hill house because he did not want to feel like a tenant in the house. Thomas agreed to put his name on the deed, and Thomas and Pace both signed the settlement statement and the warranty deed. The settlement statement identified the purchasers as Pace and Thomas. The warranty deed identified the grantees as Pace and Thomas. Thomas and Pace resided in the Harvest Hill house until they separated. During that time, Thomas paid the ad valorem taxes, the fire and extended coverage insurance, and the upkeep of the Harvest Hill house from the 204 account.

At the time she set up the Management Trust, Thomas also signed a power of attorney and prepared her will. The power of attorney gave her daughter the right to make decisions on Thomas’s behalf with respect to real property, including the Harvest Hill house, which the power of attorney describes in part as having been “acquired jointly with [her][s]pouse, Paul M. Pace... as [their] personal residence.” Also, Thomas’s will provided that Pace would receive the Harvest Hill house if she pre-deceased him. Thomas testified that she left the house to Pace because she did not want the fact that Pace’s name is on the warranty deed to tie up the remainder of her estate.

E. Divorce Proceedings

Before trial, Thomas filed a motion for partial summary judgment seeking judgment as a matter of law denying Pace’s community property characterization claims against her individually and as trustee of the Management Trust, that she did not commingle community property funds with her separate property assets contained in the Management Trust, and that all purchases of securities during the marriage were made with her separate property funds. Thomas supported her motion with her own affidavit and that of Shelley Turner, an employee of A.G. Edwards who handles the 172 account. Pace responded to the motion and attached four monthly statements for 1997 for the 172 account and three monthly statements for 1997 for the 204 account, along with the affidavit of Barbara Dossett, a bookkeeper and owner of The Taxpayer’s Service who had inspected the account statements.

The trial court granted partial summary judgment in favor of Thomas sustaining Thomas’s request to deny Pace’s community property characterization and commingling claims against the 172 account, but not the other assets contained in the Management Trust. The remaining issues were tried to the court. The trial court granted the divorce and in the decree reaffirmed the prior partial summary judgment. The trial court also issued findings of fact and conclusions of law.

II. The TRial Court’s Findings ARE SUPPORTED BY THE EVIDENCE

In his first through fourth issues on appeal, Pace argues there is no evidence to support the trial court’s findings of fact characterizing the Harvest Hill house and the assets in the Management Trust, including the 172 account, as Thomas’s separate property. We disagree.

A. Standard of Review for Legal Sufficiency

Findings of fact in a case tried to the court have the same force and effect as jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Padilla v. Flying J, Inc., 119 S.W.3d 911, 913 (Tex.App.-Dallas 2003, no pet.). See Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158 (Tex.App.-Dallas 1992, writ denied). An appellate court reviews a trial court’s findings of fact by the same standards that it uses to review the sufficiency of the evidence to support a jury’s findings. See Ziehen v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ).

When a party attacks an adverse finding on an issue that he did not have the burden to prove at trial, he must show on appeal that there is insufficient or no evidence to support the adverse finding. See Croucher v. Croueher, 660 S.W.2d 55, 58 (Tex.1983); Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex.App.-Houston [1st Dist.] 2004, no pet.). A no evidence challenge to a trial court’s finding of fact is a question of law, which challenges the legal sufficiency of the evidence to support the particular finding. Tate v. Tate, 55 S.W.3d 1, 4 (Tex.App.-El Paso 2000, no pet.).

When an appellate court reviews a finding of fact for legal sufficiency, it considers only the evidence and inferences that tend to support that finding, and disregards all of the contrary evidence and inferences. See Latch v. Gratty, Inc., 107 S.W.3d 543, 545 (Tex.2003); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). An appellate court upholds a finding of fact if it is supported by more than a scintilla of evidence. Burroughs, 907 S.W.2d at 499. The reviewing court does not substitute its judgment for that of the fact-finder, even if it would have reached a different result when reviewing the evidence. FDIC v. F & A Equip. Leasing, 854 S.W.2d 681, 684-85 (Tex.App.-Dallas 1993, no writ).

B. Law of Separate and Community Property

In Texas, all marital property is either separate or community. Hilley v. Hilley, 161 Tex. 569, 573, 342 S.W.2d 565, 567 (Tex.1961). Property possessed by either spouse during or upon the dissolution of their marriage is presumed to be community property. Tex. Fam.Code Ann. § 3.003(a) (Vernon 1998). Property owned or claimed by a spouse before marriage remains that spouse’s separate property during and after the marriage. Tex. Const. XVI, § 15; Tex. Fam.Code Ann. § 3.001 (Vernon 1998). Property purchased during the marriage with separate funds is separate property. Hilley, 161 Tex. at 573-74, 342 S.W.2d at 567. Clear and convincing evidence is necessaiy to establish that property is separate property. Tex. Fam.Code Ann. § 3.003(b). A trial court may not divest a party of his separate property by a divorce decree. In re Marriage of Mmray, 15 S.W.3d 202, 205 (Tex.App.-Texarkana 2000, no pet.) (citing Eggemeyer v. Eggemeyer, 554 S.W.2d 137,142 (Tex.1977)).

Property is characterized as separate or community at the time of the inception of title. The inception of title doctrine fixes the character of certain property interests when a party first acquires a right or claim to the property; title need not be vested at such time. See, e.g., Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 430 (Tex.1970); Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471 (1949); Stavinoha v. Stavinoha, 126 S.W.3d 604, 613 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

C. The Harvest Hill House

In his first issue on appeal, Pace argues there is no evidence to support the trial court’s finding of fact that “[a]fter the marriage, [Thomas] purchased the following property with separate monies: [the Harvest Hill house], value undisputed.”

1. Applicable Law

A spouse who purchases real property during the marriage with her separate property, but takes title to the property in the names of both spouses is presumed to have made a gift to the other spouse of one-half interest in the property. Cockerham v. Cockerham, 527 S.W.2d 162, 167-68 (Tex.1975); Whorrall v. Whorrall, 691 S.W.2d 32, 35 (Tex.App.-Austin 1985, ■writ dism’d). This presumption may be rebutted by clear and convincing evidence that there was no intent to make a gift. Cockerham, 527 S.W.2d at 168; Whorrall, 691 S.W.2d at 35.

2. Analysis

At trial, Pace claimed that Thomas made a gift to him of a one-half interest in the Harvest Hill house which Thomas claimed as her separate property and asked the court to award him that one-half interest. On appeal, Pace contends that the Harvest Hill house is presumed to be community property and that there is no evidence the Harvest Hill house is Thomas’s separate property because there is no evidence the earnest money check was drawn on Thomas’s separate property account. Although Pace did not raise this issue in the trial court, a complaint regarding the legal insufficiency of the evidence in a nonjury case may be made for the first time on appeal. Tex.R.App. P. 33.1(d); Yarbrough v. Yarbrough, 151 S.W.3d 687, 689-90 (Tex.App.-Waco 2004, no pet. h.); Nelson v. Najm, 127 S.W.3d 170,176 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

Thomas testified at trial that the earnest money check was paid from her separate funds and Pace offered no evidence to the contrary. Evidence in the trial court included an excerpt of Pace’s deposition in which he admitted the Harvest Hill house was purchased completely with Thomas’s separate property. This is some evidence that the earnest money check was drawn on Thomas’s separate property account. Because the evidence is uncontroverted, it is also clear and convincing evidence that the funds used to purchase the Harvest Hill house were traced to Thomas’s separate assets. See Celso v. Celso, 864 S.W.2d 652, 655 (Tex.App.-Tyler 1993, no writ) (where evidence is uncontroverted that husband’s separate property assets were used to purchase house then evidence is clear and convincing that husband traced purchase of house to his separate property assets); see also Holloway v. Holloway, 671 S.W.2d 51, 55 (Tex.App.-Dallas 1983, writ dism’d) (party’s uncontroverted testimony alone is sufficient to establish separate property nature of asset).

We conclude the evidence was sufficient to support the trial court’s finding that the Harvest Hill house was Thomas’s separate property. Pace’s first issue is overruled.

D. The Management Trust

In his second, third and fourth issues, Pace argues there is no evidence to support the trial court’s findings that Thomas owned the assets contained in the Management Trust prior to the marriage or that Thomas transferred the income derived from these assets to the community estate during the marriage. Pace argues there is no evidence to support the following findings of fact made by the trial court:

(1) Before the marriage, [Thomas] owned the following propertfy]: The assets currently found in [the Management Trust], which includes [the 172 account] and the other assets set forth on Exhibits A and B attached hereto, value undisputed;
(2) [Thomas] created the [Management Trust] on November 13, 2000, and the assets therein are set forth on Exhibits A and B attached hereto, all of which were owned by [Thomas] prior to marriage; and
(8) All income derived from the properties held by the [Management Trust] was transferred to the community estate during the marriage.

In his brief, Pace discusses only one asset contained in the Management Trust — the 172 account — -under these three issues. His brief does not cite to authorities or to the record about any other assets contained in the Management Trust.

Rule 38 requires appellant’s brief to contain a statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex.R.App. P. 38.1(f), (h); see Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App.1996); Aldrich v. State, 928 S.W.2d 558, 560 (Tex.Crim.App.1996). The failure to do so waives any error on appeal. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex.Crim.App.1992); Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim. App.1991). We conclude Pace has waived issues two, three and four concerning all assets, other than the 172 account, contained in the Management Trust.

We discuss the trial court’s characterization of the 172 account under Pace’s fifth and sixth issues where we conclude the trial court did not err in characterizing the 172 account as Thomas’s separate property. As a result, we overrule Pace’s second, third and fourth issues.

III. No Issue of Fact to PReclude PARTIAL SUMMARY JUDGMENT

In his fifth and sixth issues on appeal, Pace argues the trial court erred in granting and reaffirming Thomas’ motion for partial summary judgment denying Pace’s claim that the 172 account is community property because she failed to rebut the community property presumption. Pace contends that Thomas failed to conduct any tracing of the assets. Thomas responds that the trial court did not err because the affidavit of Dossett attached to Pace’s response to her motion for partial summary judgment is not competent summary judgment evidence and, even if it were, it does not raise a genuine issue of material fact.

A Standard of Review for Traditional Summary Judgment

The standard for reviewing a traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is well established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). See also Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, no pet.). A traditional summary judgment is reviewed de novo to determine whether a party’s right to prevail is established as a matter of law. Caldwell, 125 S.W.3d at 789; Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). When reviewing the record in an appeal involving a traditional summary judgment, the reviewing court must (1) place the burden of showing that there is no genuine issue of material fact on the party that moved for traditional summary judgment, (2) take all evidence favorable to the nonmovant as true, and (3) indulge every reasonable inference and resolve all doubts in favor of the nonmoving party. E.g., M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex.2000) (per curiam). See also Caldwell, 125 S.W.3d at 789.

B. Applicable Law

To prevail on a motion for traditional summary judgment under rule 166a(c), a plaintiff must show that he is entitled to prevail on each element of his cause of action. See Boudreau v. Fed. Trust Bank, 115 S.W.3d 740, 743 (Tex.App.-Dallas 2003, pet. denied); Ortega-Carter v. Am. Int’l Adjustment Co., 834 S.W.2d 439, 441 (Tex.App.-Dallas 1992, writ denied). The party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Willrich, 28 S.W.3d at 23. See also Boudreau, 115 S.W.3d at 743. Once the plaintiff has established his right to summary judgment as a matter of law, the burden then shifts to the defendant as nonmovant to present evidence that raises a genuine issue of material fact thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).

C. Analysis

Pace does not dispute that Thomas inherited the assets in the 172 account or that Thomas owned the 172 account prior to their marriage. Pace also does not claim that deposits were made into the 172 account from their community property incomes. Pace’s argument is that the interest income from the 172 account was not swept properly into the 204 account and, as a result, was commingled with the underlying securities in the 172 account causing the entire 172 account to lose its identity as separate property. Pace argues Thomas failed to show the property was not commingled. We disagree.

Thomas testified that she set up the 204 account to hold the income generated by the 172 account to prevent commingling of the separate and community assets and that the income was transferred monthly. A spouse is competent to testify concerning the characterization of property without producing independent documentation such as bank records. See Vannerson v. Vannerson, 857 S.W.2d 659, 668 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard. Holloway, 671 S.W.2d at 56; Newland v. Newland, 529 S.W.2d 105, 107-08 (Tex.Civ.App.-Fort Worth 1975, no writ); but see Boyd v. Boyd, 131 S.W.3d 605, 614-17 (Tex.App.Fort Worth 2004, no pet. h.). However, a party’s unsupported and contradicted testimony may not meet the clear and convincing standard. See Johnson v. Johnson, 804 S.W.2d 296, 300-01 (Tex.App.-Houston [1st Dist] 1991, no writ).

In this case, Thomas’s testimony is not unsupported or contradicted. Pace did not dispute that Thomas owned the 172 account as her separate property. And Turner corroborated Thomas’s testimony that the community property income was never commingled with Thomas’s separate property in the 172 account. The instructions to A.G. Edwards to sweep the income into a separate account also corroborated Thomas’s and Turner’s affidavits that the income from the 172 account was not commingled with the 172 account assets. Thomas’s evidence adequately dispelled the community property presumption by showing the property was not commingled. See Hanau, 730 S.W.2d at 667; Welder v. Welder, 794 S.W.2d 420, 425 (Tex.App.-Corpus Christi 1990, no writ).

Additionally, Pace’s evidence failed to raise a fact issue that the community property income had been commingled with the 172 account. Dossett’s affidavit does not controvert Thomas’s summary judgment evidence that income on the 172 account was maintained as a credit and swept into the community 204 account. Instead, she states only that some interest earned on funds held in an interest-bearing account within the 172 account was not swept into the 204 account and that these funds were used to purchase new securities. But she does not identify the amount she contends should have been swept or the amount not swept, does not state that she has personal knowledge the interest was not swept, does not identify where the 172 or 204 account summaries support her theory, and does not explain the basis for her conclusion. In fact, her affidavit purports to explain, “[b]y way of example,” but the explanation that follows does not refer to interest. Even with the supporting summaries, Dossett’s statement that the interest from the interest-bearing account was not swept is a conclusion with no factual basis and is insufficient to raise a fact question. See Brown v. Brown, 145 S.W.3d 745, 751-52 (Tex.App.-Dallas 2004, pet. denied); Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex.App.-Houston [1st Dist.] 1997, no pet.). As a result, there is no summary judgment evidence that the interest was not swept.

Dossett also stated that stock was sold for a profit in July and four days later those proceeds were invested in the 172 account. But proceeds from the sale of separate property are the separate property of the spouse whose property was sold. Scott v. Scott, 805 S.W.2d 835, 838 (Tex.App.-Waco 1991, no writ). Also, an increase or decrease in the value of separate property is an inherent part of the property itself and cannot be separated from it. Dawson-Austin v. Austin, 920 S.W.2d 776, 788 (Tex.App.-Dallas 1996), rev’d on other grounds, 968 S.W.2d 319 (Tex.1998) (holding that an increase in the value of separate property stock remains separate property); Smith v. Smith, 22 S.W.3d 140, 150 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (same). We conclude Pace failed to raise a fact issue concerning the separate property characterization of the 172 account.

We overrule Pace’s fifth and sixth issues.

IV. Just and Right Piíoperty Division

In his seventh and eighth issues, Pace argues the trial court abused its discretion in dividing the couple’s estate because the mischaracterization of the Harvest Hill house and the 172 account as Thomas’s separate property prevented a just and right division of the property.

The trial court ruled that the division of Thomas’s and Pace’s property is just and right even if it mischaracterized the property. We interpret this to mean that the court would have divided the property the same way regardless of whether the property is separate or community. See Vandiver v. Vandiver, 4 S.W.3d 300, 303 (Tex.App.-Corpus Christi 1999, pet. denied). When the trial court finds that its property division is just and right regardless of any mischaracterization of the property, even though the value of the property mischaracterized is great, the mischaracterization does not affect the trial court’s just and right division of the property. Id. at 302; see Tate v. Tate, 55 S.W.3d 1, 7 (Tex.App.-El Paso 2000, pet. denied).

Even if we were to assume that Pace’s contention is correct and that the trial court mischaracterized the property, his arguments nevertheless fail. Pace must also conduct a harm analysis and demonstrate how the purported mischaracterization caused the trial court to abuse its discretion or that it had more than a de minimus impact on a just and right division of the community estate. Vandiver, 4 S.W.3d at 302; Tate, 55 S.W.3d at 7. Pace makes no argument as to why the property division is unfair or unjust apart from the alleged mischaracterization. In short, he has failed to conduct a harm analysis. Our review of the record indicates that no harm can be shown.

Because we have concluded the trial court did not err in its characterization of the Harvest Hill house and the 172 account, we also conclude that Pace has failed to show the trial court abused its discretion in dividing the property.

We overrule Pace’s seventh and eighth issues.

V. Conclusion

We conclude the evidence is sufficient to sustain the trial court’s findings of fact that the Harvest Hill house and the assets in the Management Trust are Thomas’s separate property. We also conclude the trial court did not abuse its discretion in granting partial summary judgment in favor of Thomas that the 172 account is her separate property. We also conclude that the trial court did not abuse its discretion in determining that the division of property was just and right. We affirm the trial court’s judgment.

      . The trial court's final decree of divorce changed Linda Ruth Thomas Pace’s name to Linda Ruth Thomas. For clarity, we refer to her as Thomas.

      . In fact, although not evidence, Pace’s attorney even admitted during trial that the Harvest Hill house was purchased solely with Thomas’s separate property.

      . Thomas argues the trial court should have granted her motion to strike Dossett’s affidavit because Pace failed to disclose Dossett as a witness in discovery and because the affidavit is not competent summary judgment evidence. The trial court did not rule on the motion and, in fact, considered Dossett’s affidavit in reaching its decision. Because we affirm the trial court’s judgment, we need not reach the merits of this issue.

      . If the correct amount was swept, mixing of dollars alone does not result in commingling. See Trawick v. Trawick, 671 S.W.2d 105, 110-11 (Tex.App.-El Paso 1984, no writ) (one dollar has the same value as another dollar and no commingling by the mixing of dollars where the amount owned by each is known); Farrow v. Farrow, 238 S.W.2d 255, 257 (Tex.Civ.App.-Austin 1951, no writ) (same).


source: Caselaw Access Project

author: Justice GRAVES. Justice KELLER.

license: Public Domain

text:
    Charles PETERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee,
    No. 2002-SC-0973-MR.
    Supreme Court of Kentucky.
    April 21, 2005.

      Shelly R. Fears, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, John R. Tarter, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

On June 30, 2000, the Marshall County Sheriffs Department executed a search warrant of Appellant Charles Peterson’s residence, wherein they discovered several compact discs containing a variety of pornographic images. One disc included multiple images of children engaged in explicit sexual activity, as well as a photograph of two minors, A.D. and T.S. The sheriffs department later obtained a videotape, surreptitiously recorded by Appellant, which briefly portrayed A.D. nude as she exited the shower.

Based on this evidence, as well as the testimony of both A.D. and the investigating detective, a jury of the Marshall Circuit Court convicted Appellant for the use of a minor in a sexual performance, possession of matter portraying a sexual performance by a minor, and being a persistent felony offender in the second degree. Following the jury’s recommendation, the trial judge fixed Appellant’s total sentence for these crimes at twenty years. Appellant now appeals to this Court as a matter of right.

Appellant raises three issues on appeal: (1) alleged improprieties in the excusal of absent jurors; (2) the inference of guilt created by the trial judge’s decision to leave Appellant shackled during trial; and (3) whether the Commonwealth failed to prove the images introduced into evidence (other than the videotape of A.D.) depict real minors rather than computer-generated or so-called “virtual” child pornography.

I. Juror Excusal

Prior to voir dire, counsel for Appellant moved for a continuance, or in the alternative a dismissal of the case, because twenty-one potential jurors failed to report for jury service. The trial judge denied the motion, stating that the fifty-three panelists present were sufficient to proceed with trial. Appellant now contends that he was denied a fair and impartial jury because of alleged improprieties in the excu-sal of missing jurors.

Appellant first suggests that the trial judge delegated his responsibility for excusing potential jurors to “someone else, possibly a clerk.” In Commonwealth v. Nelson, 841 S.W.2d 628, 631 (Ky.1992), this Court held that such a delegation to court administrators constituted a substantial deviation from the juror selection and exemption procedures found in KRS Chapter 29A as well as in the Administrative Procedures of the Court of Justice, Part II.

Our perusal of the record, however, reveals nothing to support Appellant’s claim that the trial judge, or one of his subordinates, actually excused the twenty-one individuals who failed to appear for jury service. At trial, the trial judge stated that he did not know why the jurors were not present, indicating that the missing venire members were likely “no shows” who had no prior approval to miss jury duty.

Likewise, Appellant’s second assertion, that the trial court neglected to issue “show cause” orders to the missing jurors, also lacks substantiation. While KRS 29A.150(1) states that missing jurors “shall be ordered by the court to appear forthwith and show cause for his failure to comply with the summons,” we find no evidence that the trial judge disregarded this statutory mandate.

These unsupported claims of error correspond almost exactly to those we considered, then rejected, in Grundy v. Commonwealth, 25 S.W.3d 76, 83 (Ky.2000). In Grundy, the defendant failed to offer any proof that the trial court (1) improperly excused jurors, or (2) made no effort to initiate contempt proceedings against missing jurors. Id. at 83-84. We found such “naked innuendo” insufficient to support a cognizable claim, particularly since “a motion, pursuant to RCr 9.34, ‘raising an irregularity in the selection of the jurors’ must have a factual basis.” Id. at 84, citing Brodgen v. Commonwealth, 476 S.W.2d 192 (Ky.1972).

Lacking supporting facts, Appellant cannot show that he was prejudiced, nor can he demonstrate that the trial court erred in denying his motions for continuance or dismissal. Nothing in the record supports Appellant’s claim that a clerk, rather than the trial judge, excused the absent jurors, or that the trial court failed to order these individuals to show cause for their absence. A mere complaint that some members of the venire did not appear for jury duty is insufficient to demonstrate the trial court erred in this matter.

II. Shackles

Prior to trial, while being transported from the detention center to the courtroom, Appellant became agitated and resisted the bailiffs instructions. Following a hearing on this incident, the trial court determined that Appellant would remain in both handcuffs and leg irons throughout trial. Appellant complains that the use of these restraints undermined the presumption of innocence and created an inference of guilt in the minds of the jury.

During the hearing on this matter, the bailiff described Appellant’s behavior as he was brought into the courtroom:

Bailiff: I told Mr. Peterson we were going to take the handcuffs off of him, and let him come out here and seat him [pointing to the defense table]. At that time he said “no” and he sort of threw a little fit and he said just take me back and try me in the absence of everybody.
Prosecutor: When you say he threw a little fit, would you describe for the court exactly what he did?
Bailiff He just jerked around and I grabbed him by the handcuffs and was holding him, he was jerking back two or three times.
Prosecutor: Do you feel — have you been trained in court security?
Bailiff: Yes.
Prosecutor: Do you feel that at this time that it is in the best interests that he remain shackled and chained?
Bailiff: Yes.

On cross-examination, the bailiff revealed that Appellant became upset when he learned of the bailiffs intention to remove only some of the restraints before trial:

Bailiff: His trouble started when I was going to remove the handcuffs but leave the leg shackles on.
Defense: O.K., so when he found out that the leg shackles were going to stay on, that’s when he was upset?
Bailiff: Right.
Defense: He just wants to be tried without the jury seeing those leg irons on?
Bailiff: That’s what he said.

Appellant then took the stand to answer questions regarding this incident and his expected behavior during trial:

Defense: Mr. Peterson, who told you that you were going to have to wear shackles here?
Appellant: The deputy right behind me [gesturing to the bailiff].
Defense: And what was your reaction?
Appellant: I thought it was a gross affront to a fair trial that I would receive, you know, if a jury seen me with the shackles and handcuffs on. There was no way I could ever get a fair trial out of this.
Defense: What do you expect your behavior will be sitting here in this courtroom during this trial?
Appellant: After this, I don’t know. I — I’m ready to go back to the jail cell and let you all try me in absenteeism.
Defense: Well, assuming we don’t try you in absenteeism, what is your, what do you anticipate your behavior will be sitting here in the courtroom?
Appellant: Really I don’t know after this. You got me, this has got me so dang upset now I don’t know. It’s an affront to the justice system of this country to have this happen.

The prosecution reminded the trial court that Appellant was convicted in 1982 for rape, a violent offense. The trial court then ruled the shackles would remain on Appellant throughout the course of the one-day trial:

Court: We’re going to leave it like it is, based on his own testimony. The Court finds that — I don’t think this is going to harm him getting a fair trial, but I am very concerned about his reactions based on his own testimony.

The inference of guilt created by restraining a defendant during trial “relates closely to an accused’s constitutional right to be presumed innocent until proven guilty.” Hill v. Commonwealth, 125 S.W.3d 221, 233 (Ky.2004). Accordingly, this Court has consistently condemned the practice of shackling a defendant during trial, absent the presence of extraordinary circumstances. Commonwealth v. Conley, 959 S.W.2d 77 (Ky.1998); Tunget v. Commonwealth, 303 Ky. 834, 198 S.W.2d 785 (1946); Manon v. Commonwealth, 269 Ky. 729, 108 S.W.2d 721 (1937). See also RCr 8.28(5) (stating that “[ejxeept for good cause shown the judge shall not permit the defendant to be seen by the jury in shackles or other devices of physical restraint”).

The exceptional circumstances that typically lead courts to consider manacling a defendant are those behaviors which indicate “good grounds for believing such defendants might attempt to do violence or to escape during their trials.” Tunget, supra, at 836, 198 S.W.2d 785. For example, in Tunget, our predecessor Court found no error in shackling a defendant who was on trial for murdering an assistant warden in the course of a brazen escape attempt from the penitentiary. 198 S.W.2d at 837. More recently, in Conley, supra, we opined that the trial judge exercised sound discretion by restraining a defendant in leg irons, the defendant having escaped during a pre-trial hearing. 959 S.W.2d at 78.

A trial judge, faced with a belligerent defendant, has a number of options at his or her disposal to ensure safety and decorum in the courtroom. These options include physical restraints, citations for contempt, and in some circumstances, removal from the courtroom until the defendant regains composure. Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). An increase in the number and placement of security officers may also safeguard against any anticipated violent or disruptive behavior. Holbrook v. Flynn, 475 U.S. 560, 563,106 S.Ct. 1340, 1343, 89 L.Ed.2d 525 (1986); Hodge v. Commonwealth, 17 S.W.3d 824, 839 (Ky.1999).

In the present matter, Appellant’s belligerent conduct prior to trial certainly raised a serious issue of courtroom security. Furthermore, based on Appellant’s refusal to assure the trial court that he would not engage in any physical or violent outbursts during trial, the trial court was well within its discretion and had good cause to order Appellant restrained throughout the course of the trial.

III. Virtual Child Pornography

Appellant contends the Commonwealth failed to prove that the images seized from his computer portrayed real, living children, as opposed to computer-generated or “virtual” child pornography. Appellant first raised this issue during pretrial motions, then later as part of a motion for a directed verdict, asking the trial court to declare unconstitutional the statutes relating to possession and distribution of matter portraying a sexual performance by a minor. KRS 531.335 and KRS 531.340.

The basis for Appellant’s claim stems from the United States Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which found certain provisions of the Child Pornography Prevention Act of 1996 unconstitutional. Specifically, the Supreme Court held that language contained in 18 U.S.C. § 2256(8)(B) (1997), criminalizing possession of pornographic material'which “appears to be” a minor engaging in sexually explicit conduct, was impermissibly overbroad. Free Speech Coalition, 535 U.S. at 258, 122 S.Ct. 1389. The Supreme Court reasoned that the sweeping language of § 2256(8)(B) could possibly prohibit possession of images that were not the direct product of child exploitation. Id. at 250-55, 122 S.Ct. 1389.

In his appeal before this Court, Appellant does not challenge the constitutionality of KRS 531.335 and KRS 531.340. Instead, Appellant raises a question alluded to in Free Speech Coalition: what type and quantum of evidence is required to prove that pornographic images found in an accused’s possession depict “real” children? The Court of Appeals made reference to this issue in Hause v. Commonwealth, 83 S.W.3d 1 (Ky.App.2002), stating:

“[T]he burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, [and] an accused has the right to rely upon failure of the prosecution to establish such proof.” In a prosecution brought against an individual accused of violating KRS 531.340, it is incumbent upon the Commonwealth to prove beyond a reasonable doubt that the “person” depicted in the matter portraying a minor in a sexual performance is a real person.

Id. at 8-9, quoting Whorton v. Commonwealth, 570 S.W.2d 627, 629 (Ky.1978) (emphasis added).

Appellant notes that at trial, Detective French testified that he did not know if the seized images depicted “virtual” child pornography. No expert testified regarding whether the images portrayed actual children. However, in the wake of Free Speech Coalition, several courts have ruled that expert testimony is not required to establish that pornographic images depict real rather than “virtual” children. See United States v. Farrely, 389 F.3d 649 (6th Cir.2004); United States v. Kimler, 335 F.3d 1132 (10th Cir.2003), cert. denied, 540 U.S. 1083, 124 S.Ct. 945, 157 L.Ed.2d 759 (2003); United States v. Richardson, 304 F.3d 1061 (11th Cir.2002), cert. denied, 537 U.S. 1138, 123 S.Ct. 930, 154 L.Ed.2d 832 (2003). “Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge.” Farrelly, supra, at 655.

In the present matter, no evidence suggests that the time has arrived when experts are needed to distinguish real from virtual pornography. The jurors themselves viewed the images upon which they based Appellant’s conviction. Therefore, under the standard established in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991), we cannot say it was “clearly unreasonable” for the jury to find guilt, or that Appellant is entitled to a directed verdict of acquittal.

The judgment of the Marshall Circuit Court is affirmed.

LAMBERT, C.J., COOPER, GRAVES, SCOTT and WINTERSHEIMER, J.J. concur.

KELLER, J., dissents by separate opinion in which JOHNSTONE, J., joins.

Dissenting Opinion by

Justice KELLER.

Appellant did not exhibit the sort of behavior that constitutes “special” or “extraordinary” circumstances sufficient to have been left in shackles in the presence of the jury. For example, in Tunget v. Commonwealth, to which the . majority makes only fleeting reference, our predecessor court noted that the defendant “was a man of demonstrated desperation.” The court then elaborated extensively on this point:

He had already been convicted of murder and had been given a life sentence. Before he had served a year of the time necessary to qualify him for parole, he had procured a gun from the outside and in nerveless fashion had herded four stalwart guards into his own cell. Thereafter, he had shot and killed the associate warden and had then shot at or through two other guards in pursuing his raging, reckless intent to escape, regardless of the resulting consequences. Confinement had not curbed him, courtroom solemnity had not cowed him, armed guards had neither daunted nor discouraged him.

Only after recounting such extreme facts did the court admit that the defendant’s case was “exceptional,” thus allowing a deviation from the rule that a defendant is not to be shackled in the presence of the jury. We have repeatedly limited this practice to instances where there is danger of violence from the defendant, where the defendant has tried to escape, or both.

There is no evidence of either of these factors in this case. Instead, Appellant only grew mildly upset, “threw a little fit,” stated that he wanted to be tried in absen-tia rather than be tried in shackles, and, when questioned about what his behavior would be upon his return to the courtroom, stated that he was not sure. Appellant’s mildly contentious behavior arose only because the bailiff intended — -from the beginning and before any of the behavior cited in the majority opinion — to leave Appellant in shackles for the jury to see. The majority admits that shackling a defendant in front of the jury implicates his constitutional right to a presumption of innocence, and that this right may only be infringed in certain circumstances. Yet the majority opinion amounts to an approval of a practice whereby a defendant is penalized for growing upset at an unnecessary proposed violation of this constitutional right and the punishment is the same action that would have otherwise violated the constitutional right. In effect, the majority opinion bootstraps away Appellant’s admittedly limited right not to be seen in shackles by the jury simply because he grew understandably upset when he was informed that he was to be forced to wear shackles in the presence of the jury before he had done anything to warrant such treatment. It is hard to imagine a more absurd situation.

“Our predecessor court noted that shackles would be justified in less than ‘one murder case out of an average hundred coming to trial.” ’ Surely this is not such a case. For this reason, I respectfully dissent.

JOHNSTONE, J., joins this dissenting opinion.

      . 303 Ky. 834, 198 S.W,2d 785 (1947)

      . Id. at 786.

      . Id.

      . See, e.g., Marion v. Commonwealth, 269 Ky. 729, 108 S.W.2d 721, 724 (1937) (allowing shackles where the defendant was "a confessed desperado, who had shown no regard for the property or life of others”).

      . See, e.g., Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004) (allowing shackles where the defendant had repeatedly from prison); Commonwealth v. Conley, 959 S.W.2d 77 (Ky.1997) (allowing shackles on defendant who had fled courtroom and escaped during arraignment).

      . See, e.g., Tunget, 303 Ky. at 837, 198 S.W.2d at 786.

      . Hillv. Commonwealth, 125 S.W.3d 221, 233 (Ky.2004) (quoting Tunget v. Commonwealth, 303 Ky. 834, 198 S.W.2d 785, 786 (1946)).


author: WINTERSHEIMER, Justice. Justice SCOTT,

text:
    Michael R. ALLEY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0103-MR.
    Supreme Court of Kentucky.
    April 21, 2005.

      Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Tami Allen Stetler, Assistant Attorney General, Michael Harned, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict convicting Alley of murder and fourth-degree assault. He was sentenced to life without the possibility of parole for 25 years.

The questions presented are whether it was error to fail to find that the defendant was incompetent to stand trial; whether it was error to decline to hold a hearing to determine whether the defendant should be forcefully medicated; whether, there was sufficient notice of aggravating circumstances; whether the jury was properly instructed as to the aggravating factor of first-degree burglary; whether it was error to allow the prosecutor to tell the jury that he had decided not to seek the death penalty and that the defendant was afforded rights that he denied the murder victim; whether the order of the closing argument in the penalty phase was error; and whether the verdict forms submitted to the jury produced a manifest injustice.

For purposes of this opinion, we will refer to the murder victim as the “first victim” and the victim of assault as the “second victim.” Alley was a regular customer at Sue’s Handi Mart in Wayne County where both victims worked. At some point, Alley became infatuated with the first victim and sent her notes and gifts. She ultimately took out three warrants against him for harassing and stalking during the summer and fall of 1995. In November 1995, Alley entered the store with a .22 caliber rifle. The second victim was aware of the situation between Alley and the first victim and told Alley to leave the store. Alley said something to the first victim about the stalking and called her a derogatory name. He then brought his gun up from his side and began to shoot. Although apparently aiming at the first victim, he hit the second victim in the hip. After the second victim was shot, Alley walked past her and shot the first victim repeatedly. She suffered gunshot wounds, to the head, abdomen and leg. Alley subsequently left the store. During the attempt to arrest Alley, he fired at least three shots at two deputy sheriffs.

Prior to trial, Alley began to, exhibit certain mental problems. He has a history of mental problems including hospitalization at least seven times since being injured in an automobile accident in 1980. A preliminary hearing was passed and his arraignment was waived because he was being evaluated for competency. Both the Commonwealth and the defense sought competency evaluations a few months later.

In July 1999, after a competency hearing, Alley was found incompetent to stand trial and was committed to the Kentucky Correctional Psychiatric Center (KCPC) for treatment. He was released later that year and given another competency hearing, but he was again found incompetent for trial. Involuntary commitment proceedings were instituted. About ten months later, he entered Central State Hospital where he remained approximately three months. After he was released and reindicted in November 2001, a new competency hearing was commenced and the defendant presented evidence from a neu-ropsychologist about the devastating effect of his brain damage from the 15 year-old-car accident on his ability to participate in his defense. He was, however, found competent. At trial, the defense did not contest that Alley had shot the two women, but claimed insanity. The jury sentenced him to life in prison without parole for 25 years on the murder charge and twelve months and a fíne of $500 on the fourth-degree assault charge. This appeal followed.

I. Competency to Stand Trial

Alley argues that the trial judge committed error and denied him due process by failing to find that he was incompetent to stand trial. He alleges that a preponderance of evidence proving him incompetent was established. RCr 8.06 and KRS 504.100 set out the legal duty to order a competency hearing once reasonable grounds are presented which call competency into question. Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001). The burden is on the defense to prove a defendant incompetent by a preponderance of the evidence. Gabbard v. Commonwealth, 887 S.W.2d 547 (Ky.1994).

On June 19, 2002, the trial judge conducted a day-long evidentiary hearing to consider the issue of competency to stand trial. The record indicates there is substantial evidence to support the finding of the trial judge as to competency. Both counsel filed memorandums regarding the issue. The mere fact that the trial judge accepted the testimony of one of the doctors as more credible than the other, has been found to be permissible and allows the judge to make a finding regarding competency. See Harston v. Commonwealth, 638 S.W.2d 700 (Ky.1982).

In Kentucky, the standard of competency is whether the defendant has a substantial capacity to comprehend the nature and consequences of the proceedings against him and to participate rationally in his defense. Commonwealth v. Strickland, 375 S.W.2d 701 (Ky.1964). This is similar to the test set out in KRS 504.060(4). The trial judge had the authority to accept the medical evidence that he believed was most credible and convincing. He made extensive findings of fact with regard to the evidence and determined that Alley had failed to provide sufficient evidence to demonstrate that he was incompetent to stand trial in light of the evidence to the contrary. Our review of the record indicates that the decision of the trial judge was supported by substantial evidence and was not clearly erroneous.. See Fugate v. Commonwealth, 62 S.W.3d 15 (Ky.2001).

II. Medication Hearing

Alley claims that the trial judge erred and denied him due process of law by declining jurisdiction and, thereby, failing to hold a hearing to determine whether he should be forcibly medicated at his trial. The medication in question was prescribed pursuant to a diagnosis and treatment plan of doctors evaluating and treating Alley. It had been prescribed by the medical staff because of his need for medication, which in fact assisted him in becoming and remaining competent and able to function on a daily basis. This included the ability of the defendant to participate and assist counsel in the presentation of his defense.

■ Defense counsel filed a motion asking the trial judge to order that Alley’s psychiatric medication be stopped prior to trial and not resumed until after trial. The basis of the motion was that Alley was not on medication at the time of the offense and the jury should be entitled to see and hear his true physical and mental state on that day. It was argued that to have the defendant continue to take the medication which masks his true mental state would deny his right to the insanity defense.

At a hearing on the motion, the prosecutor objected on the grounds that the trial judge had no authority to intervene with the defendant’s medication and that doing so could lead to security risks in the courtroom. Further, he stated that the issue was whether the defendant was insane at the time of the offense, not his state of mind at trial.

The trial judge noted that the defendant was not under any court order for medication and that nobody was ordering Alley to take it. Considering what was presently before him, the trial judge stated that he could not direct Alley either to take or not to take his medications. He observed that he may be able to do that if the proper motion was before him, but it wasn’t at this time. Responding to the ruling by the trial judge, defense counsel stated “that’s fíne.” He later indicated that if that was the case — that it was not required of Alley to take his medication— that was fine. “We understand that.”

It is clear from our review of the record that the trial judge never declined jurisdiction, but correctly determined that the proper motion was not before him. Defense counsel recognized that and clearly acquiesced in the decision. Consequently, this issue has been waived. This issue is also completely without merit. If a defendant claimed he was not culpable for a crime because he was intoxicated, should he be permitted to get drunk during trial in order to demonstrate his state at the time of the offense? Clearly not and it is equally preposterous to ask the court to order Alley to stop his medication so that he could exhibit his mental instability. As correctly noted by the Commonwealth, the issue in the case was whether the defendant was insane at the time of the offense, not his state of mind at trial.

Alley cites numerous legal authorities in support of his argument, but all of those cases are distinguishable from the situation here. They do not stand for the proposition that the trial judge is required to consider the question of medication. The elements discussed by Alley arise only when a trial judge exercises authority to address the issue of medication, which is not the case here. Turner v. Commonwealth, 860 S.W.2d 772 (Ky.1993), does provide that a trial judge has authority to order involuntary medication prior to and during trial. However, that case does not go so far as to require the trial judge to exercise such authority. In this case, the evidence indicated that the medication program produced stabilization of the mental problems and allowed him to remain competent and able to participate in his own defense. It clearly supports the decision by the trial judge not to interfere in the medical decision to place him on the medication.

Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), holds that the government may involuntarily administer antipsychotic drugs to a mentally ill defendant facing criminal charges in order to render the defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial and, taking account of the less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Sell, supra, goes on to state that assuming the defendant was not a danger to himself or to others, he could not be ordered involuntarily to take antipsychotic drugs solely to render him competent to stand trial without consideration of other important questions. This decision mirrors similar opinions rendered in Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). All of the federal cases are premised on the idea that the medication is required or ordered by the trial judge. That is not the situation here because the medication has been ordered by independent medical officials.

Alley was not entitled to a hearing on this issue. The trial judge did not err in denying relief on the grounds that the motion was not properly before him.

III. Aggravating Circumstance

Alley alleges that the federal due process clause was violated because the aggravating circumstance relied on by the prosecution was not set forth in the indictment. The record indicates that Alley had sufficient notice of the aggravating circumstance used to enhance his sentence eligibility. The defect claimed is the failure of the grand jury to consider, find and state an essential element of the offense, the aggravating circumstance of murder while engaged in the commission of first-degree burglary. KRS 532.025(2)(a)(2). We find this argument to be without merit. It has been recognized that the aggravating circumstances even for the death penalty do not have to be charged in the indictment. Cf. Furnish v. Commonwealth, 95 S.W.3d 34 (Ky.2003). Similarly, there is no error here.

IV. Directed Verdict — Burglary Aggravator

Alley complains that he was entitled to a directed verdict on the uncharged crime of burglary which was used as an aggravating factor because he asserts that there was insufficient evidence of that offense. KRS 511.020 defines burglary in its relevant part as follows:

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.

Here, Alley entered the store with a .22 caliber rifle and the intent to shoot the first victim. Evidence of criminal intent is the key to the proper application of the burglary statutes. Commonwealth v. Partee, 122 S.W.3d 572 (Ky.2003). The second victim, who was the manager of the store and knew of the stalking and harassing warrants filed by the first victim, ordered Alley to leave the store. Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997) recognized that the defendant in that case had the privilege to enter the store, but that his permission to be on the premises expired when he committed the criminal acts charged. In this instance, Alley did not take anything from the store and left immediately after the shootings, but he did wound the second victim. Cf. Tribbett v. Commonwealth, 561 S.W.2d 662 (Ky.1978); Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999). Under these circumstances, the finding of an aggravator was proper. A directed verdict was not appropriate in this case. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983).

V.Penalty Phase Closing Argument

Alley alleges that it was error for the trial judge to permit the prosecutor in his penalty phase closing argument to tell the jury that he had decided not to seek the death penalty and that Alley had been afforded rights that Alley had denied to the fatal victim. He claims that the remarks were prejudicial and inflammatory and denied him a fair and accurate determination of his penalty as well as due process of law.

Essentially the prosecutor stated that life without the possibility of parole for 25 years would be a correct verdict and that he had voluntarily removed the death penalty from the equation. The prosecutor also stated that Alley had been given a lot of constitutional rights in this trial but the victim had not been extended similar rights. Objections by the defense to both comments were overruled. Given the totality of the circumstances, Alley has not demonstrated that these comments were prejudicial or sufficient to affect the outcome of the trial or the penalty.

VI. Right to Open and Close

Alley argues that it was error for the trial judge not to allow him to make his penalty phase closing argument after the prosecutor. He states that KRS 532.025(1), which involves all cases where the death penalty “may” be imposed, directs a number of procedures to be followed. Subsection (a) states that “(T)he prosecuting attorney shall open and the defendant shall conclude the argument.” Defense counsel requested this procedure to be followed, but the trial judge declined because the prosecutor had decided not to seek the death penalty. Consequently, the prosecutor was allowed to make the final closing argument.

Here, the prosecution was not seeking the death penalty. There were no instructions or other indications to the jury that it could possibly impose a capital sentence. This was not a case where the death penalty was an option for the jury. Consequently, emphasis on the word “may” is unconvincing. Alley was not facing any possible death sentence, and thus he could not claim the benefit of being able to present a closing argument after the prosecution as if he were facing such a penalty. There was no error on the part of the trial judge.

VII. Penalty Phase Verdict Form

Alley contends that he was denied due process and a fair and rational sentencing because the verdict form allegedly directed the jury to fix his sentence at life without parole for 25 years if it found the aggravating circumstance. He argues that the form made it impossible for the jury to find the aggravating circumstance without fixing the aggravated penalty for life without parole. He maintains that this was palpable error and resulted in a manifest injustice pursuant to RCr 10.26.

Upon review, we find no palpable error or manifest injustice as required by the rule. Instruction No. 3 directs the jury that if it finds the aggravating circumstance beyond a reasonable doubt, that it shall be considered in fixing a sentence. It does not mandate what sentence. Accordingly, even though the instructions might have been drafted more concisely, it is evident that the jury had sufficient information so as to decide the appropriate and available penalties. See Hodge v. Commonwealth, 17 S.W.3d 824 (Ky.2000), cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000). Any possible error did not affect the fundamental fairness and basic integrity of the proceedings.

Alley received a fair trial. He was not denied any of his due process rights under either the state or federal constitutions.

The judgment of conviction is affirmed.

COOPER, GRAVES, JOHNSTONE and KELLER, JJ., concur.

SCOTT, J., concurs in part and dissents in part by separate opinion and is joined by LAMBERT, C.J.

Justice SCOTT,

concurring in part and dissenting in part.

I must disagree with the majority with respect to the medication issue. I concur on all other issues.

Michael Alley was found incompetent to stand trial on two separate occasions subsequent to court ordered evaluation at Kentucky Correctional Psychiatric Center (KCPC). Therefore, Alley’s indictment was dismissed and he was involuntarily hospitalized in Central State Hospital for treatment. After three months of treatment with medication, he was released from Central State — found to be competent to stand trial — and re-indicted. At trial, seven separate doctors testified to his diagnoses of impulse disorder, paranoia, psychotic disorder, drug induced psychosis, organic mental disorder related to the brain injury, delusions, dementia, hallucinations, etc; most of which evolved from a car accident more than 15 years previous from which he suffered brain damage and had lain in a coma for 11 days. His defense at trial was insanity. Obviously, it would have been beneficial for the jury to have insight — aside from the medical testimony — into Alley’s mental and physical state during the offenses.

Prior to trial, Alley moved the court to allow him to be taken off of his anti-psychotic drugs so that the jury could see him in the same mental and physical state as on the day of the offenses. The trial court denied the motion; ruling it did not have jurisdiction to address Alley’s request that he be taken off his medication, even though Alley had been involuntarily committed to Central State by order of the court, which led to his successful treatment with Risperdal.

In Tolley v. Commonwealth, 892 S.W.2d 580 (Ky.1995), we held the circuit courts had jurisdiction over matters such as this. See also, Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Specifically, the circuit court had jurisdiction to involuntarily commit Alley to Central State and approve the use of Risperdal — thus the circuit court also had jurisdiction to order him taken off the medication. We should heed the comments of Section 11 of our Constitution’s Bill of Rights, which says: “In all criminal prosecutions the accused has the right to be heard by Himself and counsel, ..., and to have compulsory process for obtaining witnesses in his favor.”

The solution would simply be to un-medicate Alley and allow him to revert back to his un-medicated condition for a short period of time; then allow a video deposition to be taken of him by his counsel and the Commonwealth, then re-medicate him prior to trial. This would assure he would be in a competent state during trial; while allowing the jury to see the real, un-medicated Alley.

The Court, of course, should conduct a hearing to determine whether taking him off the medication would endanger (1) his health, or (2) his probability of requiring competency for trial and (3) to assure itself that Alley understands any risks of coming off the medication for this period of time and voluntarily and knowingly agrees thereto...

Thus, I respectfully dissent.

LAMBERT, C.J., joins this opinion.