author: JOHNSTONE, Justice.

text:
    Nathaniel WOOD, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0535-MR.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    As Modified Dec. 1, 2005.

      Emily Holt Rhorer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Tami Allen Stetler, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   JOHNSTONE, Justice.

Following a jury trial, Appellant, Nathaniel Wood, was convicted of capital murder, capital kidnapping, kidnapping, first-degree criminal trespass, second-degree assault, and violation of a protective order. The Barren Circuit Court sentenced him to the following: life without the benefit of parole for the capital murder and capital kidnapping charges, twenty years for the kidnapping charge, twelve months for the trespass charge, five years for the assault charge, and twelve months for violation of the protective order. He appeals to this Court as a matter of right, raising nine issues for review. For the reasons set forth herein, we affirm.

Facts

On December 29, 2000, Wood assaulted his ex-girlfriend, Anna Jones, in her house. A hospital examination revealed that she had suffered bruising to her ribs and a cut lip. Later that same day, Ms. Jones petitioned the district court for an emergency protective order (EPO). The court issued the order and scheduled an EPO hearing for January 8, 2001. Additionally, criminal charges were brought against Wood based on the assault at Jones’s home, including a charge of assault in the fourth degree. He was arrested and released on December 29. As a condition of his bond, he was ordered to have no contact with Ms. Jones and to refrain from any communication with her, either directly or indirectly.

Some days later, on January 3, 2001, Wood encountered Ms. Jones as she was driving on Broadway Street in Glasgow. Ms. Jones’s friend, Fred Tisdale, was a passenger in her vehicle. Wood cut off her vehicle at an approximate forty-five degree angle, effectively blocking her path. According to Mr. Tisdale’s testimony, Wood exited his vehicle and started to yell and waive a handgun while approaching Ms. Jones’s vehicle. Wood then fired the weapon through the driver’s side window; Ms. Jones was shot and went silent. Mr. Tisdale, trapped because the passenger door was jammed, used the butt of his own gun to escape out of the driver’s side window. When he escaped, he found Wood crouched by the driver’s side rear door with his gun drawn. A struggle ensued, during which Mr. Tisdale was shot in the forearm as Wood attempted to pull Ms. Jones from the vehicle. Also, at some point during the altercation, Wood was shot once in the leg and twice in the abdomen.

Mr. Tisdale, believing that Ms. Jones was dead and fearing for his own life, ran to a nearby office to summon help. Meanwhile, Wood succeeded in removing Ms. Jones from the driver’s seat and pulling her into his own vehicle. He drove away with her legs hanging out of the back driver’s side door and dragging on the ground. Responding to several 911 calls from the. numerous bystanders who had witnessed this scene, law enforcement vehicles began pursuing Wood. Eventually, he pulled into the yard of Ms. Burldean Summers and ran into the home, leaving Ms. Jones’s limp body in his vehicle, her feet still hanging out of the back door. Ms. Summers apparently thought Wood had been in some kind of accident because he was bleeding, and showed him to the bathroom. When the police arrived, though, Wood grabbed Ms. Summers and locked both of them in a spare bedroom. They remained barricaded in the home until police negotiated Ms. Summers’ release three hours later. The standoff with Wood continued through the night and into the next day, whereupon the police began pumping gas into Ms. Summers’ home to force Wood’s exit. Finally, over twenty-four hours after he had arrived at the house, the police were able to enter the house and Woods was physically removed and arrested.

A Barren Circuit Court Grand Jury indicted Wood for capital murder, capital kidnapping, kidnapping, possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, first-degree burglary, first-degree assault, fourth-degree assault, violation of a protective order, trafficking in marijuana (with a weapon enhancement), and for being a persistent felony offender in the first degree. Following a jury trial, Wood was found guilty of murder, capital kidnapping with respect to Ms. Jones, kidnapping with respect to Ms. Summers, first-degree criminal trespass of Ms. Summers’ home, second-degree assault of Mr. Tisdale, and violation of a protective order. He was sentenced as follows: life without the benefit of parole or probation on both the capital murder and capital kidnapping charges, twenty years on the kidnapping charge, twelve months on the first-degree criminal trespass charge, five years for the second-degree assault charge, and twelve months for the violation of a protective order charge. Wood now appeals to this Court as a matter of right, alleging nine trial errors.

Aggravating Circumstances

Wood presents five issues for appellate review challenging the aggravating circumstances that were found with respect to the capital kidnapping charge and the murder charge. During the penalty phase of the trial, the jury found the presence of two aggravating circumstances with respect to both the murder and capital kidnapping charges: (1) “Wood has a substantial history of serious assaultive criminal convictions”; (2) ‘Wood murdered Anna Jones when an Emergency Protective Order or any other order designed to protect Anna Jones from Wood, such as an order issued as a condition on a bond, was in effect.” The jury found the presence of an additional aggravating circumstance with respect to only the capital kidnapping charge: “In the course of the commission of the kidnapping, Wood ■ murdered Anna Jones.” The jury recommended a sentence of life without the benefit of probation or parole for both the capital kidnapping and murder counts, and the trial court adopted these aggravated sentences.

“Murdered, During the Course of a Kidnapping” Aggravator

First, Wood argues that the evidence was insufficient to support the jury’s determination that Ms. Jones was murdered during the course of the commission of the kidnapping. According to Wood, she was dead prior to the commencement of the kidnapping. The issue is preserved by Wood’s pretrial motion to strike all capital aggravators as to the kidnapping count, which was denied.

The crime of kidnapping is elevated from a Class B felony to a capital offense when the victim is not released alive. KRS 509.040(2). Upon a finding of guilt, the defendant may be sentenced to life without the benefit of probation or parole if at least one statutory aggravating factor is found beyond a reasonable doubt. KRS 532.025(3). KRS 532.025(2) lists certain aggravating circumstances for the jury’s consideration; however, this list is not exhaustive. KRS 532.025(2) permits the jury to consider “any mitigating or aggravating circumstances otherwise authorized by law.” We have previously held that the fact that a kidnapper murdered the victim during the course of the kidnapping is a proper aggravating circumstance “otherwise authorized by law.” Harris v. Commonwealth, 793 S.W.2d 802, 805 (Ky.1990).

Wood’s primary argument is that there was insufficient evidence to support the jury’s finding that Wood murdered Ms. Jones during the course of the kidnapping. Wood argues that the evidence demonstrated that Ms. Jones was dead before he removed her from the vehicle, which is the point at which the kidnapping commenced (according to the guilt phase instructions). This argument, however, is not germane to the issue of the validity of the aggravating circumstance. Rather, it is a defense to the underlying charge. By finding Wood guilty of Mdnapping Ms. Jones, the jury implicitly determined beyond a reasonable doubt that she was alive at the time he took her from her vehicle because one can kidnap only a living person. See Ernst v. Commonwealth, 160 S.W.3d 744, 767 (Ky.2005). (“[WJhen the jury convicted Appellant of kidnapping in the guilt phase, it necessarily found beyond a reasonable doubt that Roberts was alive when Appellant restrained her.... Manifestly, one cannot kidnap a dead body.”) Though we need not address the sufficiency of the evidence that Ms. Jones was alive when she was taken to Wood’s car, as Wood has not challenged the underlying capital kidnapping charge, suffice it to say that Dr. Corey’s testimony that Ms. Jones would not have died instantly provided enough evidence upon which the jury could base its conclusion.

Alternatively, Wood argues that, even if Ms. Jones did die while in Wood’s vehicle, she received the fatal injury prior to the kidnapping and therefore, she was not murdered during the kidnapping. According to Wood, such a finding would support the jury’s conclusion that Ms. Jones “was not released alive,” but would not support the jury’s determination that he murdered her during the course of the kidnapping for purposes of the aggravated sentence. Wood’s arguments, however, overlook a fundamental principle underlying the concept of murder: the offense is not complete until the victim dies. Ernst, 160 S.W.3d at 767. There is no doubt that Ms. Jones was dead by the time Wood arrived at Burldean Summers’ house; Dr. Corey, who performed the autopsy, concluded that the wounds to Ms. Jones’s feet received in Wood’s car were post-mortem. Furthermore, the police officers that arrived at Ms. Summers’ house testified that Ms. Jones was dead in Wood’s vehicle when they arrived. Thus, Ms. Jones died while in Wood’s vehicle, which even he concedes is a possibility supported by the evidence. Therefore, she was murdered during the course of the kidnapping. We find no error.

Constitutionality of KRS 532.025(2)(a)(l)

Wood next argues that KRS 532.025(2)(a)(1) is void for vagueness. The issue is preserved by Wood’s “Motion to Declare KRS 532.025(1)(a)(1) Unconstitutional.” The trial court denied the motion. KRS 532.025(2)(a)(1) permits an aggravated sentence if: “The offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.” Wood’s central contention is that the statute fails to define “substantial history” and “serious assaul-tive convictions.” He further contends that the impermissibly vague language of the statute fails to put persons on notice of what types of assaultive conduct may later be used against them as an aggravating circumstance.

A statute is impermissibly vague if it fails to define a statute with sufficient clarity as to inform ordinary persons as to what conduct is prohibited while also not leading to arbitrary or subjective enforcement. When persons of common intelligence must guess at the meaning of a statute, it is impermissibly vague. Broad-rick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). A statute must be constructed so as to discourage arbitrary or capricious enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). “The

‘void-for-vagueness’ doctrine, therefore, attempts to ensure fairness by requiring an enactment to provide: (1) ‘fair notice’ to persons and entities subject to it regarding what conduct it prohibits; and (2) sufficient standards to those charged with enforcing it so as to avoid arbitrary and discriminatory application.” State Board for Elementary & Secondary Education v. Howard, 834 S.W.2d 657, 662 (Ky.1992). But, that is not to say that a statute must be unduly narrow or specific to pass constitutional muster: “the fact that a statute ... is susceptible to more than one interpretation, does not require a holding that the statute is unconstitutional if ... those who are affected by the statute can reasonably understand what the statute requires of them.” Gurnee v. Lexington-Fayette Urban County Government, 6 S.W.3d 852, 856 (Ky.1999).

Thus, capital sentencing schemes must satisfy the Eighth and Fourteenth Amendments of the U.S. Constitution by sufficiently channeling and directing the sentencer’s discretion so as to minimize the risk of capricious or arbitrary application. Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). Clear and objective standards must be in place to provide “specific and detailed” guidance to the sentencer, and to make the process rationally reviewable by an appellate court. 497 U.S. at 774, 110 S.Ct. at 3099. Moreover, a capital sentencing scheme must enable the sentencer to draw distinctions between those defendants who deserve capital punishment versus those that do not; it must genuinely limit the class of persons selected for capital punishment from those that are eligible. “If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.” Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188, 200 (1993).

This is not to say that an aggravating circumstance must be defined with such precision as to render its consideration mathematical. Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990). So long as the statute has some “common-sense core meaning ... that criminal juries are capable of understanding” the aggravating factor is constitutional. Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959, 49 L.Ed.2d 929, 942 (1976) (White, J., concurring). Furthermore, Kentucky courts have long recognized a presumption of constitutionality. Commonwealth v. Halsell, 934 S.W.2d 552, 554 (Ky.1996).

With these principles in mind, we turn to the present matter. Though not binding on this Court, we are mindful of other states’ consideration of similar statutory provisions. Wood relies primarily on the Georgia Supreme Court’s decision in Arnold v. State, which concluded that the following statutory aggravator was unconstitutional: “[T]he offense of murder ... was committed by a person ... who has a substantial history of serious assaultive criminal convictions.” 236 Ga. 534, 224 S.E.2d 386 (1976). The Georgia court determined that the language of the statute was too vague to inform the jury as to whether a particular defendant’s criminal history constituted a “substantial” history. Id. at 542, 224 S.E.2d 386. The Louisiana Supreme Court similarly struck down a provision allowing the death penalty where the defendant has “a significant prior history of criminal activity.” State v. David, 468 So.2d 1126 (La.1984). The Louisiana Supreme Court reasoned that the language of the statute invited varying interpretations, as the terms “significant” and “prior” are impermissibly vague. Furthermore, the term “criminal activity” did not satisfactorily limit the number or types of behavior that would fall within the ambit of the statute.

Other courts have reached the opposite conclusion in reviewing statutory aggravating factors similar to that found in KRS 532.025(2)(a)(1). The Pennsylvania Supreme Court considered a slightly different statutory aggravating factor in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985); the Pennsylvania statute authorized the death penalty if the jury found that the defendant has “a significant history of felony convictions involving the use or threat of violence to the person.” This statute was deemed constitutional, primarily because the use of the term “significant” was employed rather than “substantial”: “The term ‘substantial’ is a term connoting quantity.... ‘Significant,’ on the other hand, conveys not only the concept of numerosity but also ‘relevance.’ ” Id. at 853. The Missouri Supreme Court concluded that its statutory aggravating circumstance, directed towards defendants with a “substantial history of serious as-saultive convictions,” was reasonably clear and therefore constitutional. State v. Nave, 694 S.W.2d 729, 738 (Mo.1985). The Missouri Supreme Court was particularly persuaded by the decision of the Nebraska Supreme Court in State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977). In Hol-tan, the court considered the constitutionality of a statutory aggravator directed at persons who have “a substantial history of serious assaultive or terrorizing criminal activity.” The court concluded that the terms in the statute have well-fixed meanings and are clearly understood, and accordingly upheld the statute.

We now turn to the present matter. Kentucky’s statute requires that the jury determine whether the defendant has a “substantial history of serious assaultive criminal convictions.” We believe that this statute sufficiently directs and limits the jury’s discretion in finding the presence of this aggravating circumstance so as to avoid arbitrary or capricious application. See Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). By using the plural of “conviction,” the legislature has limited this aggravating factor to those defendants who have at least two prior assaultive convictions. The quantity of convictions to be considered is further limited by the term “substantial.” Merriam-Webster defines “substantial” as “ample to satisfy.” We believe that the word “substantial” is a term of common understanding, and that the average person or juror comprehends its meaning. Thus, the wording of the statute limits the quantity of prior convictions to be considered.

Furthermore, the character of the prior offenses to consider is sufficiently limited. The statute only contemplates “serious as-saultive criminal convictions.” Primarily, it limits the jury’s deliberations to only such assaultive behavior as resulted in a criminal conviction. Cf. State v. David, 468 So.2d 1126 (La.1984) (finding unconstitutional an aggravating factor directed at defendants with a “a significant prior history of criminal activity”). Furthermore, contrary to Wood’s assertions, we do not opine that the term “serious assaultive” is overly subjective. Of course, this language invites a certain amount of discretion and necessarily rests on the jury’s contemplation as to what constitutes a serious assaultive conviction. However, the fact that a term or phrase invites varying interpretations does not automatically render a statute impermissibly vague. Sentencing schemes are not fixed equations in which the circumstances of a defendant’s crimes and facts regarding his or her background are simply plugged in and a sentence is returned. There is a subjective element to every jury decision, starting with a determination of guilt. In fact, it is this very element of subjectivity that prevents the imposition of the death penalty or an aggravated sentence on every defendant that simply has a prior conviction for assault. The phrase “serious as-saultive” is a description that lies within the common-sense understanding of the public. We do not believe it is so broad or vague that the common juror could not understand its meaning.

Finally, we note that this aggravating factor satisfies the requirement that the circumstance may not apply to every defendant eligible for the death penalty. Obviously, not every defendant found guilty of capital murder will have at least two prior assaultive criminal convictions. Furthermore, even of those defendants with prior convictions for assault, the jury may not consider this history “substantial” or may not consider the prior criminal convictions to be of a “serious assaultive” quality.

We thus conclude that the language of KRS 532.025(2)(a)(1) is not so broad or vague as to leave the jury unfettered in what it might consider a “substantial history of serious assaultive convictions.” Nor is the language so undefined that the jury is left to speculate as to what circumstances would satisfy the aggravating circumstance. The statute limits not only the number of prior convictions that the jury may consider, but also the quality and nature of those convictions. Moreover, the language of the statute is not so inclusive that the circumstance would apply to any death-eligible defendant. We thus affirm the trial court’s determination that the statute is constitutional.

We likewise reject the companion issue raised by Wood, that the trial court should have directed a verdict on this aggravating circumstance. According to Wood, the trial court should have determined which prior convictions constituted serious assaultive convictions, and presented only these convictions to the jury. The trial court refused, and submitted evidence of all of Wood’s nine prior convictions for the jury’s consideration. In light of our discussion of the constitutionality of this statute, it should be clear that the question of what constitutes a “substantial history of serious assaultive criminal convictions” is a question for the jury. Wood’s suggestion that the trial courts should be charged with the duty of parsing out a defendant’s prior assaultive convictions from other convictions is properly directed at the General Assembly, not this Court, as we are not at liberty to insert provisions to or rewrite an otherwise clear and intelligible statute. See Hatchett v. City of Glasgow, 340 S.W.2d 248, 251 (Ky.1960). The trial court did not err in submitting evidence of Wood’s prior convictions to the jury.

Furthermore, the evidence presented by the Commonwealth was sufficient to meet the standard of proof. Wood had previously been convicted of the following crimes that could reasonably have been construed as serious assaultive convictions: seventeen counts of first-degree wanton endangerment, one count of third-degree assault, one count of assault in the first degree under an extreme emotional disturbance, one count of assault in the fourth degree with a knife, another count of assault in the fourth degree, and one count of menacing. This litany of prior assaultive conduct was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that Wood had a “substantial history of serious assaultive criminal convictions” and therefore, a directed verdict on this aggravating circumstance was not warranted. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). Wood’s arguments that these prior convictions cannot be considered “serious” go to the weight of the evidence, which is a question solely within the province of the jury. There was no error.

Availability of KRS 532.025(2)(a)(1) and KRS 532.025(2)(a)(8) to a Charge other than Murder

Wood next challenges the availability of the two remaining aggravating circumstances that were applied to the capital kidnapping charge: (1) that Wood murdered Ms. Jones while a protective order was in effect, and (2) that Wood had a substantial history of serious assaultive criminal convictions. According to Wood, the plain language of the subsections dictate that these aggravating circumstances may only be applied to the offense of murder. By Wood’s admission, the issue is not preserved but he requests review and relief pursuant to RCr 10.26.

KRS 5S2.025(2)(a)(1) provides that an aggravated sentence may be imposed if the jury finds beyond a reasonable doubt that “the offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.” (Emphasis added). KRS 532.025(2)(a)(8) permits the aggravated sentence where “the offender murdered the victim when an emergency protective order or a domestic violence order was in effect, or when any other order designed to protect the victim from the offender, such as an order issued as a condition of a bond ... was in effect.” (Emphasis added). In this matter, the jury found the presence of both aggravating circumstances with respect to the capital kidnapping charge. Wood now argues that the plain language of these two provisions evidences the legislature’s clear intent that these aggravating circumstances be applied only to the offense of murder.

We cannot address the merits of this argument because it was not presented to the trial court for consideration and therefore is not preserved for appellate review. RCr 10.26 permits this Court to review palpable errors that affect the substantial rights of a party when manifest injustice has resulted from the alleged error. Here, the jury had already found beyond a reasonable doubt that Wood murdered Ms. Jones during the course of the kidnapping; KRS 532.025(3) provides that the aggravated sentence may not be imposed “unless at least one” aggravating circumstance is found beyond a reasonable doubt. Therefore, any alleged error with respect to these two aggravating circumstances is certainly harmless, as the trial court was authorized to impose the aggravated sentence on the basis of the single aggravating circumstance alone. Soto v. Commonwealth, 139 S.W.3d 827, 870 (Ky.2004). Wood urges nonetheless that the jury might have sentenced him differently on the capital kidnapping charge if it had been presented with a single aggravating circumstance, rather than three. An error is non-prejudicial when there is no substantial possibility that the result would have been any different absent the alleged error. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.2003). Here, we find no substantial possibility that the jury would have recommended a different sentence had it only been presented with one aggravating circumstance for consideration. We believe it far more likely that the jury recommended the aggravated sentence due to the particularly brazen and vicious nature of Wood’s crimes.

EPOI Bond Condition Aggravator

Wood’s third challenge relates to the application of the EPO/bond condition aggravator set forth in KRS 532.025(2)(a)(8). The jury applied this aggravating circumstance to both the capital kidnapping charge and the murder charge. Wood argues that the EPO was invalid because Ms. Jones lacked standing to seek the EPO against Wood as he is not a “family member” or “member of an unmarried couple” as set forth in KRS 403.725. Further, Wood submits that the use of an EPO as an aggravator generally violates principles of due process because such orders are granted ex parte upon a petitioner’s request.

At the outset, it must be restated that Wood was also ordered to stay away from Ms. Jones as a condition of his bond on the assault charge stemming from his December 29 attack against Ms. Jones in her home. That same day, Wood was arrested and released on the following condition: “stay away from and not communicate with Anna Jones directly or indirectly.” Therefore, the jury was entitled to find the presence of this aggravating circumstance regardless of the existence of the EPO, as KRS 532.025(2)(a)(8) also includes “order[s] issued as a condition of a bond.” Recognizing this, Wood challenges the validity of the bond condition on two grounds. First, according to Wood, his arguments as to the invalidity of the EPO apply equally to the bond condition because his arrest for assault was based on the same incident alleged in the EPO. Stated otherwise, if the underlying EPO was invalid because it was issued ex parte, the arrest and resulting bond condition— based on the same set of events — is also invalid. This argument seems to overlook a very important distinction between an EPO and a bond condition — while an EPO may be issued ex parte, a bond condition follows an arrest that is based on probable cause. For that reason, there is simply no merit to this argument. Alternatively, Wood claims that the criminal complaint for the charge was not filed until after Ms. Jones’s death and that therefore the bond condition order resulting from the arrest was not effective until the filing date. This assertion is equally meritless. Wood signed the conditional release order on December 29 and was on actual notice of this single condition of his release at that time. Conditions attached to a bond are conditions of release, not conditions of the filing of the bond. It would defy common sense and undermine the purpose of a conditional release if those very conditions became effective at the time of filing rather than the time of release. Therefore, because Wood also violated a condition of his bond in murdering Ms. Jones, any alleged error with respect to the EPO is harmless.

Nonetheless, we will briefly address Wood’s arguments with respect to the EPO because there is no Kentucky case law dealing directly with the issue. In the recent case of Gutierrez v. Commonwealth, we considered a similar argument. 163 S.W.3d 439 (Ky.2005). There, the appellant murdered his wife while a domestic violence order (DVO) was in place. The jury applied the EPO/bond condition ag-gravator set forth in KRS 532.025(2)(a)(8). The appellant argued that the DVO was invalid, and therefore evidence of its existence was inadmissible to prove the aggravating circumstance. We rejected this argument, reaffirming the principle that, whether a court order is right or wrong, it is the duty of the parties to abide by its mandates so long as it remains in effect. Id. at 441. We then held that the “validity of a domestic violence order (DVO) is not a proper subject of inquiry when it is offered as proof of an aggravating circumstance in a capital murder prosecution or to prove the criminal violation of the DVO.” Id. at 442.

The reasoning and logic of that holding apply equally to emergency protective orders. We recognize, as Wood highlights, an important difference between an EPO and a DVO: an EPO is issued ex parte, while a DVO is granted following a hearing at which both parties are present and upon the trial court’s finding from the preponderance of the evidence that a threat exists. See KRS 403.740; KRS 403.750. This distinction, however, does not compel the conclusion that an EPO violation may not serve as the basis for the aggravating circumstance, simply because the EPO is issued ex parte. An EPO is nonetheless a valid court order and must be obeyed until such time that the court can hear the adverse party, if that party so desires. In fact, KRS 403.745(4) requires that a hearing be held within fourteen days, at which the adverse party may directly challenge the order and argue against imposition of a more permanent domestic violence order. In short, adverse parties to an EPO are not denied due process of the law because they have available to them a route by which to directly challenge the order. As we concluded in Gutierrez with respect to a domestic violence order, we herein hold that an appellant may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order.

Furthermore, Wood’s claim that his due process rights were violated is baseless. Wood had ample means to challenge the EPO; a hearing on the EPO was scheduled in accordance with KRS 403.740(4) at which he could have stated his position, and he was served with the EPO which contained the date of the scheduled hearing. Instead, he chose to murder Ms. Jones prior to the hearing. If Wood was denied the opportunity to challenge the EPO before the issuing court, it was a result of his own actions. There was no error.

Motion to Change Venue

Wood next alleges that he was denied a fair trial when his motion for a change of venue was denied. Wood’s main contention is that the community of Glasgow was so saturated with pre-trial publicity of his crimes that it was virtually impossible to empanel a fair and impartial jury. Upon thorough review of the record, we find no indication that the trial court abused its discretion in refusing to change the venue of Wood’s trial.

Wide discretion is afforded to the trial court in determining a change of venue question. Hurley v. Commonwealth, 451 S.W.2d 838 (Ky.1970). In determining the proper venue for a criminal trial, the central concern is necessarily to afford the defendant a fair trial, and a change of venue is appropriate when it appears that the defendant cannot receive a fair trial in the county of prosecution. Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997). A change of venue may be granted upon a showing that: (a) there has been prejudicial news coverage; (2) the coverage occurred prior to trial; and (3) the effect of the news coverage is “reasonably likely to prevent a fair trial.” Wilson v. Commonwealth, 836 S.W.2d 872, 888 (Ky.1992). Furthermore, a change of venue may be warranted when prejudice is so pervasive that it may be clearly implied from the totality of the circumstances. Jacobs v. Commonwealth, 870 S.W.2d 412, 416 (Ky.1994).

Wood directs our attention to the fact that approximately 95 percent of the members of the jury pool had been exposed to pretrial publicity. Wood’s crimes occurred midday on a busy Glasgow street, with over a dozen eyewitnesses. It would naturally follow that media coverage of the events would be extensive. However, the central concern in empanelling a jury is not simply the amount of pretrial publicity, but whether a fair trial is possible. See Kordenbrock v. Commonwealth, 700 S.W.2d 384, 387 (Ky.1985). “[T]he test is whether the jurors have heard something that causes a preconception concerning the defendant.” Bowling, 942 S.W.2d at 298.

Here, we are more than satisfied that the trial court empanelled a fair and impartial jury, and therefore a change of venue was unnecessary. General voir dire was conducted on 226 persons. Fifty of these people were qualified and questioned further. Voir dire on the issue of pretrial publicity was extensive and thorough. Persons who stated that they had formed an opinion of Wood’s guilt or innocence were excused. Additionally, persons who had been exposed to incorrect or overly prejudicial information were excused, as were persons who indicated a high level of exposure to media reports about the case. Of the twenty persons selected for the jury, it is clear that each was impartial and otherwise qualified to serve.

Though media coverage of the case was a concern, we agree with the trial court’s ultimate determination that pretrial publicity would not permeate the entire trial and would not prevent a fair trial. A trial judge’s decision regarding the impact of media coverage upon the fairness of a trial must be given deference unless “it appears with reasonable certainty there has been an abuse of discretion.” Claypoole v. Commonwealth, 355 S.W.2d 652, 653 (Ky.1962). In cases with similar circumstances, we have repeatedly held that a change of venue was not required. See e.g., Grooms v. Commonwealth, 756 S.W.2d 131 (Ky.1988) (change of venue not required though overwhelming majority of jury panelists had some knowledge of the case). We find no indication that the trial court in this matter abused its discretion. Reversal is not required.

Motion for Separate Trials

Wood claims that he was denied a fair trial by the court’s refusal to sever the trials on the charges of kidnapping, burglary, and assault involving Ms. Summers. As stated above, these crimes occurred when Wood arrived at Ms. Summers’ home, after having fled Broadway Street with Ms. Jones in his vehicle. We find no error.

RCr 9.16 permits a trial court to order separate trials of counts if it appears that the defendant or the Commonwealth will be prejudiced by joinder. Joinder is appropriate if the offenses are closely related in character, circumstances, and time. RCr 6.18; Cardine v. Commonwealth, 623 S.W.2d 895 (Ky.1981). “[A] trial court has broad discretion with respect to joinder, and will not be overturned absent a showing of prejudice and clear abuse of discretion.” Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky.1993).

Here, the crimes committed at Ms. Summers’ home could not have possibly been more related in character, circumstances, and time to the crimes that occurred against Ms. Jones and Mr. Tisdale. Wood only arrived at Ms. Summers’ home because he was attempting to evade the police, who were chasing him for the crimes against Ms. Jones and Mr. Tisdale. Undoubtedly, the crimes against all three victims arose from a single chain of events that happened to involve two physical locations. Furthermore, Wood has failed to demonstrate how he was prejudiced by the trial court’s decision. The trial court acted well within its discretion when it denied Wood’s motion for separate trials.

Kidnapping Exemption

Wood next argues that the kidnapping exemption found at KRS 509.050 precludes his conviction for the capital kidnapping of Ms. Jones. According to Wood, the restraint of Ms. Jones did not go beyond that which occurred incidental to her murder, and therefore a capital kidnapping conviction cannot stand. We disagree.

KRS 509.050 provides, in part:
A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.

This Court employs a three-prong test to determine when the kidnapping exemption statute applies. Griffin v. Commonwealth, 576 S.W.2d 514 (Ky.1978). First, the underlying criminal purpose must be the commission of a crime defined outside of KRS 509. Second, the interference with the victim’s liberty must have occurred immediately with or incidental to the commission of the underlying intended crime. Third, the interference with the victim’s liberty must not exceed that which is ordinarily incident to the commission of the underlying crime. Id. at 516. All three prongs must be satisfied in order for the exemption to apply. Application of the kidnapping exemption statute is determined on a case-by-case basis. Gilbert v. Commonwealth, 637 S.W.2d 632, 635 (Ky.1982). “The purpose of the statute is to prevent misuse of the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses which have as an essential or incidental element a restriction of another’s liberty.” Id.

We find that Wood has failed to prove the third prong of this test. When Wood pulled Ms. Jones from her vehicle and forced her into his own, she had already been shot and was seriously wounded. The injury ultimately resulting in her death had been inflicted. It was unnecessary to the commission of murder to pull Ms. Jones into another vehicle and drive some distance away. The interference with her liberty greatly exceeded what was necessary to murder her, and at a great cost. Had she simply been shot and left in her vehicle as Wood drove away, she might have received medical attention. Instead, she expired in the back seat of Wood’s car. Having failed to satisfy this prong of the test, we need not address the remaining two prongs. Griffin, 576 S.W.2d at 516. The kidnapping exemption statute does not apply in this matter.

Jury Selection

Wood argues that five jurors should have been removed for cause because, for varying reasons, each was unqualified to serve. At trial, Wood challenged all five jurors for cause, and the trial court denied all the motions. As a result, Wood used five peremptory challenges on these jurors. “A person has been denied the number of peremptory challenges allotted to him when forced to use peremptory challenges on jurors who should have been excused for cause.” Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky.1993). Wood maintains that reversal is required.

The trial court has the opportunity to observe the demeanor of a prospective juror, and therefore is in the best position to interpret the substance and nature of that person’s responses to voir dire questioning. For that reason, the decision to exclude a juror for cause, or to refuse to excuse a juror for cause, lies within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of that discretion. Grooms v. Commonwealth, 756 S.W.2d 131, 134 (Ky.1988). The central inquiry is whether a prospective juror can conform his or her views to the requirements of the law, and render a fair and impartial verdict based solely on the evidence presented at trial.

Juror DD

Wood argues that Juror DD should have been removed for cause because his responses indicated that he would be unable to consider all possible penalties and mitigation evidence. The statements to which Wood directs our attention, however, are not indicative of the overall tone of Juror DD’s answers and are misleading because the responses are couched in hypothetical terms. While Juror DD did state that he might be skeptical of a claim that one’s childhood rearing greatly influences one’s adult actions (by reference to the extreme case of Jeffery Dahmer), he also indicated that he would consider all available penalties. Juror DD further indicated that he would follow the court’s instructions and consider only the evidence presented at trial. A prospective juror need not be removed for cause simply because he or she expressed reservations about mitigating circumstances, if such person would nonetheless consider the full range of penalties. Young v. Commonwealth, 50 S.W.3d 148, 164 (Ky.2001). No error occurred in refusing to excuse Juror DD for cause.

Juror TB

Wood claims that Juror TB should have been removed for cause because she went to junior high school with Ms. Jones, and therefore an inherent bias in favor of the Commonwealth existed. We find no indication in the record that Juror TB should have been excused for cause. While she did attend junior high school with Ms. Jones, she admitted that they were not close friends and did not “run around together” outside of school. She further stated that she had not even seen Ms. Jones in several years. We also note that the trial court questioned this juror extensively about the precise nature of her relationship with the victim, during which Juror TB indicated that she would not have a problem serving on the jury. The relationship between Juror TB and Ms. Jones was remote, and simply insufficient to warrant her removal. Cf. Copley v. Commonwealth, 854 S.W.2d 748, 750 (Ky.1993) (find no error where the trial court refused to remove current co-workers of the victim from the jury panel). There was no error.

Juror KS

Wood objects to Juror KS because she indicated that she had some prior knowledge of the crimes and of both Wood and Ms. Jones, which she had obtained through the local media and “gossip.” Knowledge of the crimes alone does not automatically require that a juror be excused. Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky.1992). Juror KS affirmed her ability to be impartial, and repeatedly emphasized that, although she had heard and read about the case, she “was not there” and that she did not “know a whole lot about the case.” Wood has failed to direct our attention to any indication that Juror KS’s knowledge of the case impaired her impartiality. We find no error.

Juror DJ

Wood claims that Juror DJ should have been excused for cause because her responses indicated an inability to consider mitigation evidence, and revealed a “Klu Klux Klan connection.” Not responsive to any direct question from counsel, Juror DJ revealed that her husband had been wrongly accused of being a KKK member. By this revelation, Juror DJ was clearly attempting to emphasize her impartiality by describing how hurtful and difficult these untrue accusations had been for her family in the small town of Glasgow. In discussing the issue, she repeatedly explained that she learned not to judge people until she “knows the facts” and that she does not “judge people on what I hear.” Juror DJ also indicated that she has no bias or prejudice against African-Americans. (Wood is African-American). Wood’s arguments with respect to this juror lack any merit, and toe the line of propriety. To represent in his brief that Juror DJ has a “Klu Klux Klan connection” is nothing less than a direct mischar-acterization of both her responses and the record, and is highly improper. Furthermore, the record does not support Wood’s claim that Juror D J was unable to consider mitigation evidence. There was no error.

Juror DT

Wood also challenges Juror DT’s ability to consider mitigation evidence. Wood notes that Juror DT said he “might consider” mitigation but claims that he had no interest in mitigation evidence. This claim is simply speculation and contrary to Juror DT’s responses. In fact, when asked by defense counsel if family background and the general character of the defendant would impact punishment, Juror DT twice responded that it was “possible.” We find no error.

Wood additionally directs our attention to a conversation between the bench and Juror DT following voir dire, at which he revealed that his new job would prevent his ability to serve on the jury. Defense counsel objected, arguing that Wood had used a peremptory challenge to remove Juror DT when his employment situation warranted removal for cause. This assertion, however, has no merit because the trial court was under no obligation to remove Juror DT for cause because of his job. In fact, the trial court twice clarified for counsel that he would not have removed Juror DT for cause anyway, because he had failed to bring this impairment to the attention of the trial court earlier.

We conclude that Wood has failed to provide a satisfactory reason why any of these five prospective jurors should have been removed for cause. When ruling on a challenge for cause, it is the probability of bias or prejudice that is determinative. Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky.1991). Reviewing the totality of each prospective juror’s responses, we believe that none revealed a probability of bias or prejudice. The trial court did not abuse its discretion in denying these challenges for cause, and reversal is not warranted.

Conclusion

For the foregoing reasons, the judgment of the Barren Circuit Court is affirmed.

All concur.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    Ed ALLEN and Wife, Judy Allen, Appellants, v. Danny DEVINE and Wife, Lisa Devine; Krystal Van Cleave; Jason Van Cleave; Kevin Hightower; Burt Wilkinson; Jackie Sanders; and Austin Van Cleave and Shayann Hightower, The Children, Appellees.
    No. 2003-CA-002141-ME.
    Court of Appeals of Kentucky.
    Feb. 4, 2005.
    Rehearing Denied April 8, 2005.
    Discretionary Review Denied by Supreme Court Dec. 14, 2005.

      Kenneth R. Williams, Jr., Russellville, KY, for appellant.
    Pamela C. Bratcher, Bowling Green, KY, for appellee.
    Before COMBS, Chief Judge, JOHNSON and MINTON, Judges.

      . We note that in some of the exhibits before the trial court the child’s name is spelled as “Shiann”.

   OPINION

JOHNSON, Judge.

Ed Allen and his wife, Judy Allen, have appealed from the September 8, 2003, order of the Logan Circuit Court which denied their motion to dismiss the petition for immediate custody filed by Danny De-vine and his wife, Lisa Devine, for lack of standing and denied their claims to custody. The Allens alleged that they had been acting as de facto custodians of Austin Van Cleave and Shayann Hightower, the minor children of Krystal Van Cleave, and requested, in the alternative, that they be awarded permanent custody of the children. The Allens do not dispute the trial court’s findings, but rather its application of the law regarding de facto custodianship. Having concluded that the trial court failed to apply the correct law in making its determination, we vacate the order and remand this matter for further proceedings consistent with this Opinion.

Krystal Van Cleave is the mother of Austin Van Cleave, whose date of birth is June 23, 2000, and Shayann Hightower, whose date of birth is December 5, 2001. Austin’s father is Burt Wilkinson. Burt and Krystal lived together from 1997 until 2000. Burt’s whereabouts were unknown at the time the Devines, who are Krystal’s father and stepmother, filed their petition for custody of Austin and Shayann. Since Burt was not served with the petition, his rights were not adjudicated by the trial court’s award of custody to the Devines. Shayann’s father is Kevin Hightower. Krystal and Kevin resided together at the time this matter was before the trial court, but they are not married. Following the trial court’s award of custody to the De-vines, Krystal and Kevin were granted visitation rights with Austin and Shayann “coextensive” with the Allens.

Shortly after Austin’s birth in 2000, Krystal and Burt met Ed and Judy Allen, who reside in Logan County and rented a house to Krystal and Burt. Beginning in February 2002, the Allens began keeping both Austin and Shayann in their home on a regular basis. At that time, Austin was 20 months old and Shayann was two months old. By April 2002 the children were residing full-time with the Allens. Krystal testified that this was not to be a permanent arrangement, but that at that time, she could not take care of the children. Krystal visited the children at the Allens’ home once or twice weekly and Kevin visited the children once every other week. During the time the children resided with the Allens, the Allens provided for essentially all of the children’s needs, although Krystal and Kevin contributed WIC payments when available, placed approximately $30.00 in a piggybank, and bought a few clothes for the children. The Devines also bought the children some clothes.

Between February and September 2002, the Devines visited with the two children once or twice monthly. They claimed they did not know the children were residing with the Allens on a full-time basis until Labor Day 2002 because Krystal had intentionally hid this from them. At that time, the Devines began to exercise a more consistent visitation schedule with the children and often picked up the children from the Allens’ residence for overnight visitations.

In June 2002 Jackie Sanders, Kevin’s mother and the paternal grandmother of Shayann, filed an action against Krystal and Kevin seeking visitation rights with Shayann. Krystal had told Jackie that the children were residing with Krystal’s “cousin Judy.” It was later determined, and is currently undisputed, that the Al-lens are of no blood relation to Krystal. As a result of the court action being filed, Krystal attempted to retrieve the children from the Allens’ home. However, the Al-lens refused to relinquish custody of the children to Krystal. The Allens made oral and written agreements with Krystal and Kevin which stated that if Krystal and Kevin would provide a secure and stable environment for the children, the Allens would return the children to them. In the meantime, on November 12, 2002, Jackie was granted visitation with Shayann. The trial court at that time ordered Krystal to get a job and to take any necessary steps to get the children back into her household within six months.

In March 2003 Krystal met with her father, Danny Devine, at his request and she agreed that the Devines should seek temporary custody of the children. On May 1, 2003, the Devines filed a verified petition for immediate and permanent custody and emergency hearing, stating as follows:

Krystal Van Cleave and Kevin High-tower, the father of Shayann Hightower, have allowed the [appellants] Judy Allen and Ed Allen, who are not related to the children, to take physical custody of the children. Krystal Van Cleave and Kevin Hightower have admitted that they are unable to care for the children.
The [Devines] have been visiting with the children every other weekend since they realized Judy Allen and Ed Allen had physical custody of the children. As Mr. and Mrs. Allen are not related to the children, it would be in the children’s best interest for the [Devines], the children’s maternal grandparents, to have custody of them.

The Devines’ motion did not allege that the Allens were unfit to care for the children, only that they were not related to the children. The Allens filed a response on May 22, 2003, wherein they denied that Krystal and Kevin had allowed them “to take physical custody of the children.” The Allens requested that the Devines’ motion be dismissed for lack of standing or, in the alternative, they be awarded custody of the children as their de facto custodians.

On June 1, 2003, the Devines filed a motion for grandparent visitation pending a ruling on their custody petition. Following a brief hearing on June 27, 2003, the Logan Circuit Court Domestic Relations Commissioner recused himself from the case because he represented the Allens’ son in an unrelated criminal matter. In a report filed on June 27, 2003, the DRC recommended that each of the parties submit to a home evaluation and then transferred the case directly to the Logan Circuit Court pending the outcome of the home evaluations.

On June 17, 2003, the Devines filed an amended petition solely for the purpose of joining Burt Wilkinson as a party to the case. They also filed a motion to consolidate the case at issue herein with the visitation action filed in 2002 by Jackie Sanders, stating that the two cases “overlap and concern the same child.” On July 22, 2003, the trial court entered an order (1) denying the Devines’ motion to consolidate; (2) ordering the appointment of a Guardian Ad Litem for the minor children; (3) granting the Devines’ motion for visitation with the minor children every other weekend pending the outcome of the final hearing; (4) ordering the Cabinet for Families and Children to “conduct investigations and prepare a final report to be submitted to the Court on or before August 21, 2003,” the date of the final hearing; and (5) ordering all parties to attend parenting education classes.

Evidentiary hearings were held on August 21, 2003, August 26, 2003, and August 28, 2003. In its order entered on September 8, 2003, the trial court made the following findings:

Krystal Van Cleave and Kevin Hightower have, for reasons other than poverty alone, failed to provide for the welfare of their children and have knowingly and voluntarily delegated the custody and control of their children to the Allens for nearly a year and a half. The Court concludes that they have lost their superior right to custody and that custody should be determined between the parents and the non-parent contestants based upon the best interest of the children and considering all relevant facts.
Based upon the facts, the Court concludes that it is now in the best interest of the children that permanent custody be awarded to Danny and Lisa Devine. The only caveat to this conclusion is the theoretical possibility that the shock of these proceedings may cause Krystal and Kevin to discover some previously unknown penchant for parental responsibility and self sacrifice. For this reason, only temporary custody is now granted to the Devines and another hearing should be scheduled to finally determine if this unlikely event can occur.
The effect of this order is to eliminate Ed and Judy Allen from contention as permanent custodians. It is in the best interest of the children that the Allens be granted temporary visitation rights coextensive with the visitation rights of Krystal and Kevin [ ] which shall be conducted in accordance with the visitation guidelines contained in the local rules.
The claims of the Allens to custody of the children are denied.

The Allens filed their notice of appeal on October 8, 2003.

On January 20, 2004, a final hearing was held in which the permanent custody of Austin was determined as between the De-vines and Krystal and the permanent custody of Shayann was determined as between the Devines, Krystal and Kevin. The trial court entered an order on February 17, 2004, awarding permanent custody of the two children to the Devines, with the visitation order of October 23, 2003, remaining in effect.

Having reviewed the record and the applicable law, we must conclude that the trial court erred in this case when it found the Allens to be de facto custodians, but failed to give them “equal consideration” as required under KRS 403.270(2) when it determined custody in accordance with the best interests of the children. We hold that the trial court erred in concluding that KRS 403.270, the “equal consideration” requirement, was not the applicable law and that it only applies to custody between parents, as it plainly states that it also applies to de facto custodians. Since the trial court’s findings that the Allens were de facto custodians were supported by substantial evidence, the trial court was required to give the Allens “equal consideration” under KRS 403.270(2) when applying the best interests standard. Put simply, the trial court should have given Krystal, Kevin, and the Allens equal consideration, and only upon finding that all of them were unfit to have custody of the children or that all of them had relinquished them superior parental or de facto custodial rights should it have considered the Devines or anyone else as custodians of the children. Therefore, we must vacate the order entered on September 8, 2003, and remand this matter to the Logan Circuit Court for further proceedings to consider the Allens as custodians of Austin or Shayann pursuant to KRS 403.270(2).

In Moore, supra the Supreme Court of Kentucky addressed the standard of review for appellate courts in a custody case and held that a reviewing court may set aside findings of fact only if those findings are clearly erroneous; ie., whether or not those findings are supported by substantial evidence.

“[S]ubstantial evidence” is “[e]vidence that a reasonable mind would accept as adequate to support a conclusion” and evidence that, when “taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men.”
... Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence [footnotes omitted].

After a trial court makes the required findings, it must then apply the law to the facts. The determination of the proper law to be applied to the facts is reviewed de novo. “The resulting custody award as determined by the trial court will not be disturbed unless it constitutes an abuse of discretion.” “ ‘Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.’ ... The exercise of discretion must be legally sound.”

We first address whether the trial court properly found the Allens to be de facto custodians by clear and convincing evidence. KRS 403.270(l)(a) defines a de facto custodian as

a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older.... Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

KRS 403.270(1)(b) provides that once the court determines by clear and convincing evidence that a person meets the definition of a de-facto custodian, “the court shall give the person the same standing in custody matters that is given to each parent under this section....” The Devines argue that the Allens were not found to be the primary caregivers for and financial supporters of the children; however, this is completely contrary to the trial court’s findings. The Devines further argue that Krystal’s placement of the children with the Allens was a temporary agreement. However, this is irrelevant when determining whether the Allens were the children’s de facto custodians. The Devines also state that the Allens have “unclean hands” and should not be found to be the de facto custodians. However, it was Krystal who hid the fact .that the children were living with the Allens, not the Allens themselves. Further, the trial court made specific findings that both the Devines and the Allens might desire to have the children permanently when it stated:

Even if they were granted custody of the children, the Allens, and initially the Devines, expressed willingness to give the children back to Krystal at any point in the future that she might request. The Court doubts the complete sincerity of these sentiments and suspects that they may have been made with the idea that Krystal would never really discover responsibility and demand custody of the children — or to appease Krystal — or for other reasons.

There is no evidence in the record to dispute the trial court’s finding that the Allens were both the primary caregivers and the primary financial supporters of the children for over six months prior to the Devines filing their petition and that the children were under three years of age at the time they were placed in the Allens’ care.

The trial court’s findings were specific as to the Allens’ status as de facto custodians, stating:

In February of 2002, the Allens began keeping both Shayann and Austin on a regular basis in their home. According to Mr. Allen, Krystal visits the children a couple of times per week, and Kevin may visit the children every other week or so. Neither Krystal nor Kevin have had the children on an overnight basis since April of 2002. The Allens have provided essentially all of the food and clothing for the children although Krystal states that they contributed “WIC payments” when they were available and Kevin said he had put about $30.00 in one of the children’s piggy bank.

Thus, the trial court’s factual findings that the Allens were defacto custodians of Austin and Shayann was supported by substantial evidence and we affirm.

Because the Allens were found to be de facto custodians of the children, the Devines were required to establish that Krystal, Kevin, and the Allens were either unfit or had their superior right to custody relinquished before they could have standing to seek custody. It is well-established that when a custody dispute arises between a parent and a non-parent, and where a de facto custodianship is not an issue, the non-parent must “prove that the case falls within one of two exceptions to parental entitlement to custody.” The first exception arises if a parent is shown to be unfit. The second arises if a parent waives his or her superior right to custody.

A determination that a parent is an unfit person to have custody of her children must be supported by clear and convincing evidence. To prove the parent is unfit, the non-parent must demonstrate by clear and convincing evidence that the parent “engaged in conduct similar to activity that could result in the termination of parental rights by the state.” The type of evidence necessary to demonstrate a parent to be unfit includes: (1) evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual abuse; (2) moral delinquency; (3) abandonment; (4) emotional or mental illness; and, (5) failure, for reasons other than poverty alone, to provide essential care for the children.

It is undisputed that both Krystal and Kevin were unable to take care of the children at the time the hearing was held. The trial court in its findings stated:

The Court finds that Krystal Van Cleave and Kevin Hightower voluntarily relinquished custody of their children to Ed and Judy Allen in April 2002 and the children have been continuously in their custody since that time. Krystal and Kevin have failed, for reasons other than poverty alone, to provide-the necessary food, shelter or clothing and other necessities of life for these two children for a continuous period of more than a year. By their actions they have relinquished their superior claim to custody.

Once the trial court found Krystal and Kevin to be unfit, it should have also made a determination as to the fitness of the Allens. If the Allens had been determined to be fit and not to have relinquished their superior right to custody, then they should have been awarded custody of Austin and Shayann. Instead, the trial court then found that it was not in the best interests of the children to be in the custody of the Allens for the following reasons:

The Allens have generally attempted to act in the children’s best interest and to rescue them from an unfortunate situation. They have naturally become very attached to the children and the children to them. This attachment may have affected their judgment and objectivity in their dealings with Krystal and her father. They are in all respects capable of providing a stable home. Nevertheless it is found that it is not in the children’s best interest to grant the Al-lens permanent custody. The lack of any blood relationship and their age (they will be approaching age 70 when Shayann is 15 years old) are both factors in this decision. The possibility that they could later choose to move elsewhere resulting in separation of the 3 siblings and the possibility that sometime in the indefinite future that they might voluntarily relinquish custody back to Krystal has also been considered. The likelihood of either of these events happening seems lower if custody was placed with the Devines. For these reasons it is in the best interest of the children that the Allens be eliminated from consideration as permanent custodians.

However, the trial court failed to make a finding regarding whether the Allens had given up their superior rights as de facto custodians or whether they were unfit to care for the children. This right of the de facto custodian is just as important as that of the parents. KRS 403.270(l)(b) states, “[o]nee a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent....” The trial court plainly stated that the purpose of its September 8, 2003, order was to eliminate' the Allens from consideration for custody. The reasons given by the trial court concerned factors not enumerated in KRS 403.270(2) and involved issues that would not affect the Allens’ relationship with the children, which was a clear abuse of KRS 403.270(3).

Thus, the trial court’s finding that the Aliens were the de facto custodians of the children was supported by substantial evidence, and we are compelled to uphold this finding. Therefore, with that being established, we must vacate the order of September 8, 2003, and remand this matter to the Logan Circuit Court for it to apply the law of KRS 403.270 and to make its custody determination in accordance with the law as discussed herein. On remand, the trial court will need to determine whether the Alens are unfit or whether they relinquished their superior right to custody. If neither of these applies, then the Alens must be awarded custody of Austin or Shayann since Krystal and Kevin were found to have relinquished their superior right to custody in the orders entered on September 8, 2003, and February 17, 2004, and they did not appeal those orders.

ALL CONCUR.

      . The Devines argue in their brief that because the Allens did not file a motion to alter, amend, or vacate under Kentucky Rules of Civil Procedure (CR) 59.05, they have waived their right on appeal to argue this issue. We find no merit in this argument.

      . In 1996 Krystal married Jason Van Cleave. The marriage produced one child, Ayla Van Cleave. Although Jason is named as a party to this appeal, no claim for custody of Ayla is made in this case. Ayla has resided since birth with Krystal’s mother, Darlene Kissel-baugh, who serves as Ayla’s de facto custodian. Krystal and Jason are now divorced.

      . The Allens were in their mid-50's at this time, had been married for over 30 years, and operated a small printing business in Logan County.

      . Prior to this time, Krystal had left Austin with her cousin for almost nine months before taking action through the Sheriff’s office to get him back.

      . Krystal was diagnosed in 1996 with bipolar disorder, but she has failed to take medication for this condition. Both Krystal and Kevin have a history of alcohol and drug abuse, but Krystal testified that neither had current substance abuse problems.

      . Krystal testified that in August 2003 she attempted to get the children back from the Allens, but they allegedly refused. Krystal did not consult an attorney regarding this matter until December 2003, and she took no legal action to remove the children from the Allens’ care.

      .Before and during the custody action, Krystal was unemployed, and only a few months prior to this action, Kevin began to work through a temporary service for $7.00 per hour. At the time of the final hearing on January 20, 2004, Krystal had been working 40-hour weeks for approximately one month as a customer service representative earning $7.50 per hour and Kevin was doing construction work for $8.25 per hour. Krystal testified that she had attempted to contribute additional money to the care of the two children, but the Allens had refused.

      . However, at the hearing in July 2003, Krystal wanted the Allens to keep the children with the Devines having visitation. The trial court found that Krystal took her parents’ divorce very hard and had not had a good relationship with her father for many years. The trial court further observed Krystal’s anger when she testified, which appeared to be primarily directed at her father. After the July 2003 hearing, Krystal once again wanted her father to keep the children, but then changed her mind again before the evidentia-ry hearings in August 2003. By the last hearing she wanted to take them herself.

      . There is disputed testimony as to whether the Allens ever suggested to the Devines that they take the children to raise, whether the Allens admitted they were too old to care for the children, and whether the Allens agreed not to seek de facto custodian status as to the children.

      .The trial court’s order also denied a motion filed by the Devines on June 10, 2003, requesting that all parties execute medical records releases. The trial court determined that good cause had not been shown as to the necessity of the releases; however, it did order Krystal to execute a release for her medical records. It further ordered no discussions in front of the minor children in regard to this case.

      . On September 30, 2003, Krystal and Kevin filed a motion to enforce visitation stating that they had been denied visitation by the Devines and they were uncertain whether they would be allowed visitation with the children in the future. The trial court entered an amended visitation order on October 23, 2003, after the notice of appeal had been filed by the Allens.

      . This case was submitted for decision in August 2004 and scheduled to be heard in December 2004.

      . Kentucky Revised Statutes.

      . KRS 403.270(2) states:
      The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian [emphasis added]. The court shall consider all relevant factors including:
      (a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
      (b) The wishes of the child as to his custodian;
      (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
      (d) The child's adjustment to his home, school, and community;
      (e) The mental and physical health of all individuals involved;
      (f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
      (g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
      (h) The intent of the parent or parents in placing the child with a de facto custodian; and
      (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined by KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

      . If the trial court had not found the Allens to be de facto custodians, its "best interests” analysis would have been proper once it found by clear and convincing evidence that Krystal and Kevin were unfit or had given up their superior parental rights. Moore v. Asente, 110 S.W.3d 336, 359 (Ky.2003).

      . Moore, 110 S.W.3d at 354.

      . Id. at 354.

      . Lindley v. Paducah Bank & Trust, 114 S.W.3d 259, 263 (Ky.App.2002).

      . Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App.2002) (citing Bickel v. Bickel, 442 S.W.2d 575, 577 (Ky.1969)).

      . Sherfey, 74 S.W.3d at 783 (quoting Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994)).

      . See Sherfey, 74 S.W.3d at 777.

      . Although the question was somewhat disputed, it is now settled that a person must have “been the primary caregiver for the child but also the primary financial supporter of the child in order to prove de facto custodian status.” Swiss v. Cabinet for Families & Children, 43 S.W.3d 796, 798 (Ky.App.2001).

      . Williams v. Phelps, 961 S.W.2d 40, 41 (Ky. App.1998) states as follows:
      In general, in order to support an action, the interest of the party must be a present or substantial interest, as distinguished from a mere expectancy. Winn v. First Bank of Irvington, Ky.App., 581 S.W.2d 21, 23 (1978). A party must have a real, direct, present and substantial right in the subject matter of the controversy. Id. Standing is the right to appear and seek relief in a particular proceeding. See Id.

      . The version of KRS 403.420(4)(b) in effect at the time of the circuit court proceedings provided that "a child custody proceeding is commenced in the Circuit Court ... [b]y a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one (1) of his parents[.]” This section of the statute was repealed in 2004. The children in this case were found to be in the physical custody of their de facto custodian who pursuant to KRS 403.270 have equal standing with the parents.

      . Moore, 110 S.W.3d at 359 (citing 16 L. Graham & J. Keller, Kentucky Practice, Domestic Relations Law § 21.26 (2d ed. & Supp. 2003)); see also Davis v. Collinsworth, 771 S.W.2d 329, 329-30 (Ky.1989).

      . Moore, 110 S.W.3d at 359.

      . Davis, 771 S.W.2d at 330.

      . Moore, 110 S.W.3d at 360.

      . See Davis, 771 S.W.2d at 330.

        . Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky.2004). See also James v. James, 457 S.W.2d 261, 263 (Ky.1970); Diaz v. Morales, 51 S.W.3d 451, 454-55 (Ky.App.2001).