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    CSX TRANSPORTATION, INC., Appellant/Cross-Appellee, v. Troy MOODY, Appellee/Cross-Appellant.
    Nos. 2007-SC-000548-DG, 2009-SC-000048-DG.
    Supreme Court of Kentucky.
    May 20, 2010.

      Raymond G. Smith, Edward H. Stopher, David T. Klapheke, Boehl, Stopher & Graves, LLP, Louisville, KY, Dan Himmel-farb, Mayer Brown, LLP, Washington, DC, Counsel for Appellant/Cross-Appellee, CSX Transportation, Inc.
    Kenneth L. Sales, Joseph Donald Sat-terley, Paul Jason Kelley, Sales, Tillman, Wallbaum, Catlett & Satterley, Louisville, KY, Counsel for Appellee/Cross-Appellant, Troy Moody.
   OPINION OF THE COURT

This appeal concerns an action filed by Troy Moody under the Federal Employers’ Liability Act (FELA). Moody claimed that he developed a type of permanent brain injury known as toxic encephalopathy from exposure to fumes from solvents used in his work for CSX Transportation, Inc. in the 1970s and 1980s. A jury returned a verdict in his favor and awarded damages, after which CSX appealed. The Court of Appeals vacated the award of future medical expenses, holding that the amount of the award was supported only by supposition and speculation, but affirmed in all other respects.

We granted CSX’s motion for discretionary review to consider whether the Court of Appeals erred by affirming the trial court’s decision to admit evidence concerning other employees’ exposure to solvents as well as its refusal to give instructions that CSX tendered concerning the foreseeability of harm, non-taxability of damages, and reduction of damages to present value. We granted Moody’s cross-motion to consider whether the Court of Appeals erred by holding that CSX filed a timely notice of appeal.

Moody began to work at CSX’s South Louisville shops in August 1978 as a service attendant and later worked as a machinist helper and machinist apprentice. His duties included cleaning pits, ramps, tools, and anything else that required cleaning, often in confined spaces. He stated that he used various cleaning solvents, including brown soap, mineral spirits, and a substance that he referred to as “Dowclene.”

Although Moody received a protective rubber apron, hard hat, safety goggles, and face shield, he stated that he was neither given a respirator nor informed of the dangers involved in using solvents. He testified that Dowclene emitted particularly strong-smelling fumes that resembled gasoline. He used the chemicals daily and frequently became lightheaded, dizzy, and nauseated. He would go outside for a “fresh air break” until his symptoms subsided but did not report the symptoms to a nurse or physician. Moody was furloughed from December 12, 1982, until July 28, 1983, after which he returned to work at the shop. At that time, he used brown soap and mineral spirits but not Dowclene. Moody was transferred to work on a rail gang sometime in 1984 and worked repairing machinery. He quit working in 2002 after he developed carpal tunnel syndrome.

Moody’s claim alleged that CSX knew or should have known of the dangers associated with using Dowclene but failed to take necessary safety precautions, which caused him to be exposed to toxic fumes and develop toxic encephalopathy. The injury produced memory loss, confusion, anxiety, mood swings, and fatigue, which Moody alleged were permanent and disabling.

Moody’s evidence included testimony from Dr. Douglas Linz, a specialist in internal, occupational, and environmental medicine. Dr. Linz testified concerning the long-term effects of using volatile chlorinated organic solvents such as PERC and trichloroethane and mineral spirits. He stated that symptoms of toxic encephalopathy generally require three to ten years’ exposure but can develop with as little as three mouths’ exposure. The occupational history he obtained from Moody indicated that he and nearby workers used large quantities of the solvents in poorly-ventilated areas, including pits. Dr. Linz stated that fumes from such chemicals are heavier than air, which causes them to collect in areas such as pits, increasing the intensity of an exposure when working in such an area. He opined that Moody suffered from permanent brain damage due to toxic encephalopathy and that the condition resulted from exposure to solvents in his work for CSX.

CSX made two motions for a directed verdict, the first after Moody rested his case and the second after CSX rested its case. The trial court denied both. The jury then returned a verdict in Moody’s favor and awarded damages of $200,000.00 for future medical expenses; $540,000 for future lost wages; $1,000,000.00 for past pain and suffering; and $1,000,000.00 each for future pain and suffering.

I. Timely Appeal

The parties disagreed when arguing CSX’s directed verdict motion about proof of Moody’s after-tax wages and about whether a collective bargaining agreement permitted CSX to offset certain medical expenses. The trial court denied the motion, noting that the issues could be resolved after the jury returned its verdict but before judgment was entered, by means of post-trial briefs and additional proof if required. The disagreement arose again when discussing jury instructions concerning damages, at which time the parties agreed to brief the issues as suggested earlier by the court.

CSX made an oral motion for judgment notwithstanding the verdict (JNOV) immediately after the jury returned a verdict, raising four issues. The trial court denied the motion to vacate as to negligence and the sufficiency of evidence that disability from the injury caused Moody’s wage loss. Consistent with the parties’ agreement, the court deferred a ruling and designated the time within which the parties should brief whether damages for wage loss must be based on after-tax earnings and whether CSX was entitled to offset future medical expenses paid under its medical plan.

CSX filed its brief, albeit styled as a motion for JNOV, on October 10, 2003 and Moody filed a brief in response. The trial court determined after, a hearing that the record contained ample proof to support the verdict and denied the balance of the oral motion on November 21, 2003. A subsequent order struck “final and appeal-able” language from the November 21 order.

The trial court entered judgment on the jury’s verdict on December 18, 2003. On Monday, December 29, 2003 CSX filed a motion for JNOV or, in the alternative, a new trial, which included both the issues raised in the oral motion and new issues. Although the trial court denied the motion for JNOV on December 28, 2004, the order failed to address the new trial request. CSX requested a ruling on the request on January 6, 2005, after which the trial court entered an order acknowledging that it remained pending. The court entered an order denying a new trial on June 27, 2005 and CSX filed a notice of appeal on July 14, 2005. Although Moody moved to dismiss, the Court of Appeals denied the motion and affirmed the trial court.

Moody’s cross-appeal asserts that the Court of Appeals erred by failing to grant his motion to dismiss CSX’s appeal as untimely. He argues that CR 59.02 and the first sentence of CR 50.02 permit a motion for JNOV and/or a new trial to be made at any time after the jury returns a verdict but within 10 days after the entry of judgment. Moreover, they permit the motion to be made orally, immediately after the jury renders its verdict, or filed in writing no later than 10 days after judgment is entered. He concludes that CSX moved for JNOV or, in the alternative, a new trial before judgment was entered. Moody maintains, therefore, that CSX’s post-judgment motion for JNOV or a new trial amounted to a motion to reconsider the denial of the initial motion, which did not toll the time for filing a notice of appeal. We disagree.

Although CR 73.02(l)(a) requires a notice of appeal to be filed within 80 days after the notation of “service of the judgment or order” being appealed, CR 73.02(l)(e) terminates the running of the time for appeal upon the filing of a timely motion for JNOV or a new trial. The time commences to run when an order granting or denying the motion is served under CR 77.04(2).

CR 50.02, which authorizes a motion for JNOV, provides:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial, (emphasis added).
CR 59.02 provides:
A motion for a new trial shall be served not later than 10 days after the entry of the judgment.

The term “judgment notwithstanding the verdict” may be construed to include an initial judgment that disregards the jury’s verdict. The third sentence of CR 50.02 states specifically, however, that a trial court when ruling on a motion for JNOV and/or a new trial may either “allow the judgment to stand” or “reopen the judgment,” either of which presumes that a judgment has been entered. In other words, CR 50.02 authorizes motions that request the court to reconsider and reopen an existing judgment.

We do not view the oral motion made at the close of trial or the brief filed in support of the oral motion as being premature motions for JNOV and/or a new trial. Unlike the situation in Cloverleaf Dairy v. Michels, CSX filed only one motion to reconsider a judgment. The motion tolled the time for taking an appeal until 30 days after the notation of service of the order denying the motion for a new trial. CSX’s notice of appeal was timely because it was filed within the 30-day period.

II. The Federal Employers’ Liability Act

The Federal Employers’ Liability Act (“FELA”) provides a uniform method for compensating injured railroad workers and their survivors. It is remedial legislation and is to be construed liberally in order to accomplish its humanitarian purpose. The FELA authorizes a federal cause of action, but Congress gave state and federal courts concurrent juris-

diction over FELA claims. The substantive law that governs a FELA action is federal, whether brought in state or federal court, but the law of the forum governs procedural matters. Forum law governs the admissibility of evidence subject to review for an abuse of discretion. It also governs the form of jury instructions.

III. Evidence of Similar Exposure to Solvents by Other Workers

CSX asserts that the trial court erred by admitting testimony from Martine Ro-Bards, a PhD neuropsychologist, concerning a study that she conducted on railroad workers who were exposed to solvents. Relying on Burton v. CSX Transportation, Inc., CSX complains that Moody failed to meet his burden to demonstrate the substantial similarity of what amounted to evidence of other claims. CSX argues that the evidence prejudiced its case substantially and warrants a new trial because it posed an improper “risk of encouraging the jury to think that if other CSX workers were making the same sort of claims, then [Moody’s] ailments must have also been caused by workplace solvent exposure even if there was insufficient proof of his individual exposure and a causal link to his symptoms.”

Rulings on the admissibility of evidence in a FELA claim are left to the sound discretion of the trial court absent an abuse of discretion. Much of the expert testimony in Burton concerned whether the plaintiffs symptoms resulted from toxic encephalopathy due to solvent exposure at CSX or from multiple sclerosis. Having failed to convince the jury that his symptoms resulted from solvent exposure, Burton asserted on appeal that the trial court erred by refusing to permit witnesses to refer to the fact that Dr. RoBards’ study linked solvent exposure to brain damage and cognitive impairment in CSX workers.

Dr. Linz testified that Burton’s cognitive impairment resulted from his exposure to solvents at CSX. He also testified concerning the findings of numerous studies of “railroad workers” or “those affected by solvents.” Burton argued on appeal that Dr. Linz should have been allowed to refer to Dr. RoBards’ study subjects as “CSX workers,” which would have emphasized that the solvents he used at work could have caused his cognitive impairment.

We affirmed, convinced that the risk of undue prejudice outweighed the evidence’s probative value because Burton failed to lay a proper foundation showing that Dr. RoBards’ study subjects worked under conditions substantially similar to his own. We noted that to identify them as “CSX workers” might encourage the jury to conclude that Burton’s symptoms resulted from workplace solvent exposure, even if it considered his proof of causation to be weak, because co-workers made similar claims. The present claim differs from Burton because Moody laid a proper foundation for the disputed evidence.

A. John Newell Claim

CSX filed a motion in limine to preclude any testimony or reference to solvent claims and exposures of other railroad employees. The motion sought specifically to preclude both a 1978 injury report by John Newell, who claimed to suffer health problems after being exposed to Dow Cleaner, and the 1980 deposition of Tyrone Green in Newell’s case. CSX argued at the hearing that Newell’s exposure and symptoms were not substantially similar to Moody’s. It conceded that it knew acute dizziness and headaches could result from an overexposure to solvents at the time of Moody’s exposure but asserted that it did not know an overexposure could cause toxic encephalopathy.

Moody asserted that Newell’s exposure as a service attendant was substantially similar to his own. He argued that CSX planned to call its industrial hygienist to testify that service attendants were not overexposed to dangerous chemicals and did not require protective measures. Yet, Newell’s injury and 1980 lawsuit put CSX on notice that a service attendant became ill from overexposure to dangerous chemicals while working in the South Louisville shops. The trial court denied CSX’s motion but warned Moody that he must show a substantial similarity with respect to evidence concerning any other worker or risk a mistrial. The record indicates that the court did not abuse its discretion when admitting the evidence.

Moody offered evidence at trial showing a substantial similarity between his exposure and symptoms and those of Green and Newell. The record indicates that Newell became ill and was treated at the hospital for an overexposure to Dowclene while working as a service attendant at the South Louisville shops in 1978. His symptoms included abdominal pain and vomiting as well as dizziness. Green’s 1980 deposition indicated that he and Newell used Dowclene together in the South Louisville shops; that they used Dowclene during the same period and in the same manner as Moody; and that they experienced some of the same symptoms as Moody.

Green testified that he had worked as a service attendant at the South Louisville shops since 1974 and observed Newell experiencing nausea on several occasions when using Dowclene. He stated that Dowclene came in fifty-gallon drums and that he used it often, spraying it with a compressed air tank and hose or pouring it on parts and machinery that he wanted to clean. The chemical irritated his skin and caused him to be nauseated. Like Moody, he took frequent fresh-air breaks to avoid the fumes. Green stated that his symptoms lingered after he stopped using Dow-clene; that he was never given any protective equipment; that he complained to his foreman about Dowclene’s effects; and that he knew of no one who inhaled Dow-clene who did not complain of symptoms like his own.

B. Dr. RoBards’ Study

CSX’s motion in limine sought to preclude Dr. RoBards from testifying at trial on the grounds that she was not qualified to testify to causation, Moody’s ability to return to work, or whether he was disabled and that her testimony lacked the degree of scientific validity and reliability that Daubert v. Merrell Dow Pharmaceuticals, Inc., requires. CSX reasoned that, as a psychologist, Dr. RoBards’ lacked the qualification “to opine as to the medical cause organic brain damage — a neurological condition.” Thus, her conclusions on the issue “are the product of a flawed methodology, which relates back to [her] lack of qualifications.” CSX stated at the hearing on the motion that while it did not object to testimony from Dr. Ro-Bards indicating that testing revealed Moody’s condition to be consistent with solvent-induced encephalopathy, she should not be permitted to testify that solvent exposure caused his brain damage because she is not a physician. Moody asserted that Dr. RoBards’ findings were relevant to the question of foreseeability and agreed that she would not be asked to testify to causation.

The Court of Appeals rejected CSX’s Daubert challenge, noting that its argument appeared to concern the sufficiency of the evidence of causation rather than its admissibility. CSX disagrees, relying on Burton to argue that the trial court erred in admitting Dr. RoBards’ testimony concerning her study because Moody failed to show a substantial similarity in the circumstances of the persons that she studied and also between them and Moody. CSX concludes that her testimony was substantially prejudicial and warrants a new trial. We disagree.

Unlike the situation in Burton, Dr. Ro-Bards testified at Moody’s trial. She stated that she began her study with the case of a patient who suffered from various neuropsychological deficits after working at CSX’s South Louisville shops. The study consisted of surveying others who worked at the same place, at the same time, under the same working conditions, and with the same job description to determine if they had similar symptoms. She found that they did. Dr. RoBards testified that Moody was one of the study participants. She concluded after conducting a neuropsychological evaluation that his symptoms were consistent with toxic encephalopathy. CSX did not object to the testimony. Having failed to do so, CSX cannot complain that the trial court erred by failing to exclude the testimony.

IV. Jury Instructions

The purpose of instructing a jury is to guide jurors in applying the law correctly to the facts in evidence. Pattern jury instructions used in FELA cases tried in federal court tend to be lengthy and detailed. Kentucky state courts take a “bare bones” approach to jury instructions, however, leaving it to counsel to assure in closing arguments that the jury understands what the instructions do and do not mean. A proper instruction correctly advises the jury “ ‘what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof on that issue.” Regardless of what form jury instructions take, they must state the applicable law correctly and neither confuse nor mislead jurors. A trial court has a duty to give a correct instruction when a party offers an erroneous or misleading instruction on a proper issue.

A. Foreseeability

The parties disputed whether the risks of Moody’s exposure to solvents were foreseeable at the time of the exposure. Moody presented evidence that CSX knew or should have known of the risks to which it exposed him. CSX asserts that the trial court erred by refusing to give tendered instructions on foreseeability, particularly because it presented evidence that the scientific community had not linked the use of 1,1,1 trichloroethane or other solvents to toxic encephalopathy at the time of Moody’s exposure. CSX tendered two proposed instructions.

Instruction 10 stated:

In order to find that CSX is guilty of negligence which in whole or in part resulted in the injuries of which plaintiff complains, you must find that the acts of the railroad were such that a reasonably prudent man would have known that they were calculated to produce injury, or, in other words, it must appear that the inquiry [sic] was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attendant circumstances, (emphasis added).

Instruction 18 stated:

CSX in this case was not required to guard its employees against that which reasonably prudent persons acting at the same time and under like circumstances would not anticipate as likely to happen. If, for example, someone has no reasonable ground to anticipate that a particular condition would or might result in injury, then he is not required to do anything to change such a condition.
Because the same substance may be dangerous in some circumstances and completely harmless in other [sic], the plaintiff, in this instance, must provide [sic] that it was reasonably foreseeable, during the period between 1978 and present, when he was working for CSX, that solvents posed a danger of solvent-induced encephalopathy to employees employed as plaintiff was employed. Likewise, it is not enough to show that solvents may have been foreseeable as a danger to railroad workers with duties or working conditions different from that of plaintiff. For CSX to have acted negligently as to the plaintiff, a danger to him arising from his work practices must have been reasonably foreseeable to CSX. (emphasis added).

CSX states correctly that common-law negligence requires proof that the defendant knew or should have known that its conduct created a reasonable likelihood of injury. Moreover, the foreseeability of harm is an essential element of negligence under the FELA. We conclude, however, that the trial court did not err because the requested instructions might have misled or confused the jury and because the trial court’s instructions addressed foreseeability adequately.

Gallick v. The Baltimore and Ohio Railroad Co. indicates that a defendant “need not foresee the particular consequences of [its] negligent acts” but only that its conduct would reasonably be anticipated to result in harm. Thus, a defendant is hable for even the improbable or unexpectedly severe results of its negligence. A separate foreseeability instruction is not required in FELA cases if the jury is instructed that the defendant’s duty is “measured by what a reasonably prudent person would anticipate” under the same or similar circumstances.

Mindful that a FELA defendant need not intend to harm the plaintiff or foresee the particular type of injury that occurred, we conclude that the tendered instructions might have misled the jury. The phrase “calculated to produce injury” might have led the jury to think erroneously that it could find for Moody only if it determined that CSX intended to injure him. Likewise, the reference to “a danger of solvent-induced encephalopathy” might have misled the jury to think erroneously that it could find for Moody only if it determined that CSX should have foreseen a reasonable likelihood that solvent exposure would cause him to develop toxic encephalopathy specifically. The trial court did not err in refusing the proposed instructions under the circumstances.

The jury received instructions that complied with the foreseeability requirement as construed in Galliclc. Instruction 3 informed the jury that negligence was “the failure to use the same degree of care which a person of ordinary prudence would use in the circumstances of a given situation.” It also stated that negligence could be “the doing of something which a reasonably prudent person would not have done, or failing to do something a reasonably prudent person would have done under the circumstances.”

The jury found under Instruction 4 that CSX “was negligent as defined in Instruction No. 3, and that such negligence was a cause in whole, or in part, of the claimed injury....” The jury made clear by doing so and answering affirmatively on Verdict Form No. 1 that it thought CSX should have realized when requiring Moody to use solvents as it did that such use could reasonably be anticipated to result in injury. Gallick indicates that the FELA requires no more.

B. Damages for Future Lost Wages

The proper measure of damages in a FELA claim is a federal question. Damages for future lost wages in FELA claims are exempt from taxation. They are measured in after-tax dollars and reduced (i.e., discounted) to present value.

1. Non-taxability instruction

CSX asserts that the trial court committed reversible error by refusing to instruct the jury as follows:

In the event that you determine to award the plaintiff a sum of money, you are instructed that the award is not subject to any deductions for federal or state income taxes.

CSX relies on Norfolk & Western Ry. Co. v. Liepelt for the principle that refusing to instruct the jury concerning the exemption from state and federal income tax constitutes reversible error. Although we agree that the trial court erred by failing to give the requested instruction, we do not agree that the error compels us to reverse in this case.

As we determined today in CSX Transportation, Inc. v. Begley, 313 S.W.3d 52 (Ky.2010), Liepelt does not require a conclusion that a refusal to give a tax instruction always constitutes reversible error. Begley acknowledges that CR 61.01 presumes erroneous jury instructions to be prejudicial and places the burden on the appellee to show a lack of prejudice. It notes, however, that the error may be viewed as being harmless if the result probably would have been the same absent the error and if the error was not so prejudicial as to merit a new trial. In Begley we viewed a verdict that was not excessive under the evidence as showing a probable lack of prejudice

A verdict is excessive under the evidence if it “cause[s] the mind at first blush to conclude that it was returned under the influence of passion or prejudice on the part of the jury.” Even if liberal, an award that does not shock the conscience or is not clearly excessive may not be set aside. The award in the present case was not clearly excessive under the evidence.

The jury awarded a total of $2,540,000 in damages for future wage loss and past and future pain and suffering, which was slightly more than half of the $5,000,000 that Moody requested. Moody was 51 years old when the trial was held in 2003. Although he testified that he had intended to retire when he reached age 60, experience teaches us that circumstances change and that individuals often work to a later age than they had hoped to work at age 51. Moody testified that he had experienced memory loss and depression since the early 1980s and began to experience anxiety attacks sometime later. Medical evidence indicated that he suffered from chronic toxic encephalopathy, a condition that could be treated but not cured; that the condition produced neuropsychological impairment, particularly affecting his memory, the ability to concentrate, and problem-solving skills; that it also produced depression, anxiety, and irritability, which were often disabling and apt to worsen over time; and that the difficulty he would have following instructions and finding jobsites rendered him incapable of employment.

We affirm because we are convinced that the verdict was reasonable and was not returned under the influence of passion or prejudice. The record indicates that the jury probably determined what amount would compensate Moody reasonably and did not inflate that amount in the mistaken belief that it would be taxed.

2. After-tax instruction

CSX asserts that the trial court committed reversible error by refusing to instruct the jury to calculate Moody’s lost after-tax earnings. An alternative argument relies on Reusch v. Seaboard System R. R. for the proposition that Moody had the burden to prove his after-tax earnings in order to permit his future wage loss to be calculated and failed to meet that burden. We disagree.

Filed on June 27, 2003, Moody’s itemized damage list stated that he earned approximately $67,000 per year plus approximately $14,000 in travel pay; thus, he would lose approximately $6,700 per month due to his inability to work. He testified at trial that he made $4,500 per month and intended to retire from CSX at age 60. He did not specify whether the $4,500 figure represented his gross or after-tax earnings. CSX failed to cross-examine him and, unlike the defendant in Liepelt offered no evidence of its own concerning taxes. When denying the tendered instruction the trial court noted and CSX conceded the impossibility of determining that $4,500 was not Moody’s after-tax earnings. Moody questioned what tax rates the jury would apply if the $4,500 per month was reduced for taxes.

The trial court did not err by refusing the requested after-tax instruction because, even if we were to assume for the purposes of discussion that Moody’s gross monthly earnings were $4,500, the jury had no evidence from which to calculate his after-tax earnings. An instruction to reduce future lost earnings by the applicable taxes requires evidence of what the taxes would be or evidence to permit the jury to calculate taxes. Liepelt did not address which party is responsible for showing the applicable tax rates. Federal appellate courts that have addressed the matter since the Liepelt decision have concluded that the defendant is responsible. We agree.

3. Present value instruction

CSX tendered the following instruction on present value:

If you should find that the plaintiff is entitled to a verdict, and further find that the evidence in this case establishes either: (1) a reasonable likelihood of future medical expense, or (2) a reasonable likelihood of loss of future earnings, then it becomes the duty of the jury to ascertain the present worth in dollars of such future damages, since the award of future damages necessarily requires that payment be made now for a loss that will not actually be sustained until some future date.
Under these circumstances, the result is that the plaintiff will in effect be reimbursed in advance for the loss, and so will have the use of money, which he would not have received until some future date, but for the verdict.
In order to make a reasonable adjustment for the present use, interest free, of money representing a lump-sum payment of anticipated future loss, the law requires that the jury discount or reduce to its present worth, the amount of the anticipated future loss, by taking (1) the interest rate or return which the plaintiff could reasonably be expected to receive on an investment of the lump-sum payment, together with (2) the period of time over which the future loss is reasonably certain to be sustained; and then reduce, or in effect deduct from, the total amount of anticipated future loss whatever that amount would be reasonably certain to earn or return, if invested at such rate of interest over such future period of time; and include in the verdict an award for only the present-worth — the reduced amount — of anticipated loss.

CSX asserts that the plaintiff in a FELA action has the burden to prove the present value of future lost wages. Relying on Jones & Laughlin Steel Corporation v. Pfeifer CSX also asserts that the trial court committed reversible error in this case by refusing to instruct the jury that damages for future wage loss must be reduced to present value. We disagree.

The Sixth Circuit has rejected arguments by railroads that damages for future wage loss are prohibited absent proof of a discount rate. In other words, the plaintiff is not required to produce evidence concerning the present value of future lost wages in order to be entitled to damages for future wage loss. We adhere to the Sixth Circuit’s view.

The U.S. Supreme Court determined in Kelly that federal law requires future damages to be reduced to present value but considered the evidence admitted to assist the jury in making the computation to be “a matter of procedure and evidence ... to be determined according to the law of the forum.”

In Pfeifer; a Jones Act case, the court acknowledged that “because the lost stream [of earnings] can never be predicted with complete confidence, any lump sum represents only a ‘rough and ready’ effort to put the plaintiff in the position he would have been in had he not been injured.” The court explained that the calculation of damages resulting from an injury begins with the assumption that the plaintiff would have continued to work until retirement. The calculation then attempts to compensate for the stream of income lost due to the injury, which depending on the proof may include not only present wages but fringe benefits as well as anticipated future wage increases due to inflation or cost-of-living adjustments, likely promotions, seniority, and merit raises.

In order to compensate only for the plaintiffs actual pecuniary loss, the calculation must account for the fact that most or all of the items in the earnings stream would be subject to income tax. Likewise, the calculation must account for the fact that the plaintiff will receive the award in a lump sum rather than in periodic payments. That is accomplished by discounting the lump sum at a rate that is based not only on the return from investing the sum in “the best and safest investments” but also on the extent to which that return is likely to be offset by taxes and inflation. The Pfeifer court refused to specify a mandatory formula for choosing the discount rate but rejected the application of a state’s total offset rule as a matter of law, stating that the trier of fact must make “a deliberate choice.” The court noted, however, that nothing would prevent parties interested in controlling litigation costs from stipulating to the total offset method before trial.

The trial court did not err in refusing CSX’s present value instruction. It mentioned only some relevant factors and was not supported by any evidence. Pfeifer makes it clear that an appropriate discount rate considers three factors: the interest likely to be earned on the best and safest investments; the applicable tax rate on the interest; and the extent to which inflation would be likely to reduce the return further. Neither Pfeifer nor St. Louis Southwestern Railway Co. v. Dickerson or Monessen Southwestern Railway Company v. Morgan, , both of which applied Pfeifer to FELA claims, addressed the evidentiary foundation necessary to require an instruction directing the jury to discount future wage loss damages.

Neither party introduced evidence concerning any of the factors comprising a discount rate in the present case or indicating that the interest likely to be earned would exceed taxes and inflation. Thus, no evidentiary basis existed to support an instruction that referred specifically to any of the factors. The trial court’s Instruction No. 7 and Verdict Form No. 4 directed the jury “to determine from the evidence a sum of money that will fairly and reasonably compensate Troy Moody” for future lost wages. As the Sixth Circuit has observed:

Jurors are presumed to be intelligent people, generally aware, from today’s economy and their own experience with it, of the earning value of money when placed in safe investments.

Jurors are also aware from their own experience that interest is taxed and that inflation reduces the value of money. The trial court could have said more on the subject than it did, but the instructions were adequate under the circumstances.

4. Future Medical Expenses

We affirm with respect to future medical expenses. Although Moody’s cross-motion sought discretionary review of the Court of Appeals’ decision to vacate his award of future medical expenses, he failed to address the matter in his brief to this court. We conclude for that reason that he has abandoned the issue.

The decision of the Court of Appeals is affirmed.

All sitting.

All concur.

      . 45 U.S.C.A. §§ 51-60.

      . The parties refer at various times to "Dow Clean,” "Dow Cleaner,” "Dowclene,” and "DowClene.” "DowClene,” manufactured by Dow Chemical, consists of a mixture of trichloroethane and perchloroethylene (PERC). CSX records, OSHA inspection records, and Jefferson County Pollution Control records also indicate that workers used pure 1, 1, 1 trichloroethane at the South Louisville shops.

      . The prayer for relief in CSX's brief made an alternative request for a new trial on the issue of damages.

      . See Harrison v. Clark, 431 S.W.2d 716 (Ky.1968) (court retained jurisdiction to consider JNOV and new trial motions filed one to two hours before judgment entered where judgment did not consciously rule on them).

      . 636 S.W.2d 894 (Ky.App.1982).

      . 45 U.S.C.A. §§ 51-60.

      . Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943).

      . Urie v. Thompson, 337 U.S. 163, 180-81, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).

      . 45 U.S.C. § 56.

      . Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041 (1926).

      . See Central Vermont R. Co. v. White, 238 U.S. 507, 511, 35 S.Ct. 865, 59 L.Ed. 1433 (1915).

      . Norfolk & Western Ry. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980) (whether evidence concerning federal taxes on decedent's earnings was properly excluded is a federal question, but a trial court is not required to permit such evidence where future tax impact is de minimus); Lavender v. Kum, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946) (admissibility of evidence in FELA action a matter for trial court absent abuse of discretion); Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916) (forum law determines evidence admitted to show method for calculating present value).

      . See, e.g., Pryor v. National R.R. Passenger Corp., 301 Ill.App.3d 628, 234 Ill.Dec. 897, 703 N.E.2d 997, 1000-01 (1998); Duren v. Union Pacific R. Co., 980 S.W.2d 77, 79 (Mo.App.1998).

      . Neuropsychology is “[al specialty of psychology concerned with the study of the relationship between the brain and behavior, including the use of psychological tests and assessment techniques to diagnose specific cognitive and behavioral deficits and to prescribe rehabilitation strategies for their remediation.” Stedmans Medical Dictionary 1314 (28th ed.2006).

      . 269 S.W.3d 1 (Ky.2008). See also Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th cir.1989); 31A C.J.S. Evidence 8, 320 (2008).

      . Burton, 269 S.W.3d at 12.

      . Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 90 L.Ed. 916 (1946).

      .Dr. RoBards received a serious injury before the Burton trial and was unable to appear and testify.

      . "The test for an abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The symptoms included depression, anxiety, memory loss, and difficulties with concentration, balance, dizziness, and gait.

      . Near the end of her direct examination CSX did object when she began to refer to a chart that compared Moody with other individuals. Moody promptly removed the chart and it was not mentioned again.

      . See, e.g., 3A Kevin F. O'Malley et al., Federal Jury Practice and Instructions, ch. 155 (5th ed.2001).

      . See Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky.2005); Young v. J.B. Hunt Transportation, Inc., 781 S.W.2d 503, 506 (Ky.1989).

      . Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky.2005).

      . Drury v. Spalding, 812 S.W.2d 713 (Ky.1991).

      . Murphy v. Harmon, 291 Ky. 504, 165 S.W.2d 11 (1942).

      . Moody introduced a 1978 Material Data Safety Sheet (MSDS) for DowClene, which stated that prolonged skin contact could cause burning and that its vapors should not be inhaled, particularly in confined spaces. Moody testified that he worked in "pits,” which were confined spaces, and introduced evidence that solvent vapors were heavier than air and collected in such areas. A 1980 MSDS warned that overexposure to Dow-Clene could cause organic injury, central nervous system depression, and death. Other evidence indicated that CSX’s legal predecessors knew of the dangers posed by solvent use as early as the 1950s and 1960s.

      . Inman v. Baltimore & O. R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959).

      . 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).

      . Id. at 120, 83 S.Ct. 659.

      . Id.

      . Id. at 118, 83 S.Ct. 659.

      . 372 U.S. at 118-19, 83 S.Ct. 659.

      . Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916).

      . 26 U.S.C. § 104(a)(2) (gross income excludes damages received on account of personal injuries); KRS 141.010(9) (adopts Internal Revenue Code definition of gross income).

      . Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).

      . Kelly, 241 U.S. at 490, 36 S.Ct. 630 (future benefits must be discounted unless an expectancy is so short that a reasonable person could not be expected to invest or purchase an annuity with the proceeds of the judgment).

      . 444 U.S. 490, 100 S.Ct. 755.

      . See 26 U.S.C. § 104(a)(2) (gross income excludes damages received on account of personal injuries); KRS 141.010(9) (adopts internal revenue code definition of gross income).

      . 313 S.W.3d at 87-88.

      . 313 S.W.3d at 88-89.

      . Louisville & Nashville Railroad Co., Inc. v. Mattingly, 339 S.W.2d 155, 160-61 (Ky.1960).

      . Id.

      . Medical records indicated that a CSX nurse questioned in 1993 whether Dr. Vaughn found short-term memory loss as noted by Healthsouth and proposed a neuropsychological evaluation if he did.

      . 566 So.2d 489 (Ala.1990) (FELA plaintiff has burden to offer evidence concerning effect of taxation on future stream of income, interest rate on best and safest investments, and application of discount rate to alleged stream of income).

      . 444 U.S. 490, 100 S.Ct. 755.

      . When denying the instruction, the trial court and the parties agreed that they would brief the matter after trial and that the jury’s verdict could be adjusted to account for taxes before judgment was entered if necessary. The court indicated earlier when denying CSX's directed verdict motion that additional proof could be taken concerning taxation, if necessary. Although the trial court refused ultimately to adjust the verdict to account for taxes, by denying the oral motion for JNOV on November 21, 2003, CSX does not take issue with the ruling.

        .See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1351 (9th Cir.1987); Deakle v. John E. Graham & Sons, 756 F.2d 821, 830-31 (11th Cir.1985); Fanetti v. Hellenic Lines Ltd., 678 F.2d 424, 432 (2nd Cir.1982), cert, denied 463 U.S. 1206, 103 S.Ct. 3535, 77 L.Ed.2d 1387 (1983). See also CSX Transp., Inc. v. Williams, 230 Ga.App. 573, 497 S.E.2d 66 (1998).

      . 566 So.2d at 492; Gomiak v. Nat'l R.R. Passenger Corp., 889 F.2d 481 (3rd Cir.1989); Myrlak v. Port Authority of N.Y. and N.J., 302 N.J.Super. 1, 694 A.2d 575 (1997).

      . 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983).

      . Baker v. Baltimore & Ohio Railroad Co., 502 F.2d 638 (1974); Baynum v. Chesapeake and Ohio Railway Company, 456 F.2d 658 (1972); Pennsylvania Railroad Company v. McKinley, 288 F.2d 262 (1961).

      . 241 U.S. at 490-91, 36 S.Ct. 630.

      . 462 U.S. 523, 103 S.Ct. 2541.

      . Id. at 546-47, 103 S.Ct. 2541.

      . Id. at 535-36, 103 S.Ct. 2541.

      . Id. at 537, 103 S.Ct. 2541.

      . Id. at 537-40, 103 S.Ct. 2541.

      . Id. at 553, 103 S.Ct. 2541.

      . Id. at 550, 103 S.Ct. 2541.

      . 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985).

      . 486 U.S. 330, 340-42, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988).

      . Baynum v. Chesapeake and Ohio Railway Company, 456 F.2d 658, 661 (1972).


source: Caselaw Access Project

author: Chief Justice MINTON.

license: Public Domain

text:
    Harry FINN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000749-DG.
    Supreme Court of Kentucky.
    May 20, 2010.
    Roy Alyette Durham, II, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Heather Michelle Fryman, Assistant Attorney General, Office of Criminal Appeals, Julie Scott Jernigan, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

We accepted discretionary review to consider whether Kentucky law allows a conviction for possession of a controlled substance when the quantity of the controlled substance in the defendant’s possession is so small that it is not visible to the naked eye. We conclude that Kentucky law allows a conviction under those circumstances, particularly when, as here, other evidence tends to prove that the defendant knowingly possessed the substance.

In the past, we have consistently rejected arguments that a defendant must possess a “usable amount” of a controlled substance to be convicted of unlawful possession of a controlled substance because our statutes criminalize unlawful possession of “any amount” or “any quantity” of a controlled substance. Now we likewise reject Harry Finn’s argument that possession of microscopic amounts of a controlled substance could never justify a conviction for criminal possession of a controlled substance. Instead, we hold that a conviction for possession of a microscopic quantity of a controlled substance is valid so long as there is other evidence that the defendant possessed the requisite mental state for the possession offense for which the defendant is charged.

I. FACTS AND PROCEDURAL HISTORY.

This case arose in a routine traffic stop for minor traffic infractions during which the officer noticed signs that the driver, Finn, was intoxicated. After Finn failed a field sobriety test, the officer arrested Finn without incident for driving under the influence (DUI). The officer also arrested Finn’s passenger for alcohol intoxication in a public place after noticing that she smelled strongly of alcohol. Finn does not contest the lawfulness of the search of his automobile or his person as incident to arrest.

The police found a cigarette pack concealed within a work glove on the front seat of the automobile. The glove was not seized, but police found inside the cigarette pack a baggie containing marijuana, which they seized. Police also found and seized from the cigarette pack a glass pipe containing suspected cocaine residue, and a Chore Boy®, which is a scouring pad commonly used in smoking pipes of crack cocaine. All seized items were found in an area accessible to both occupants of the vehicle.

Upon searching Finn’s person, the police also found and seized a white plastic pen casing containing suspected cocaine residue. According to the testimony of the police officer who initially stopped Finn and who searched Finn’s person, Finn told the officer that the pen easing was his “push rod”; and Finn admitted to using the pen casing to ingest cocaine and to having already consumed all of the cocaine. Although it appears somewhat unclear from our review of the testimony whether the officer may have possibly seen, or thought he saw, suspected cocaine residue on the pen casing, we will assume for purposes of our review that any residue was not readily visible to the officer’s naked eye. Unmistakably, police suspected the presence of cocaine residue on the pen casing because Finn admitted to having used the pen casing as a push rod to smoke cocaine.

Following Finn’s arrest, he submitted to toxicology tests at a hospital. No drugs were detected in Finn’s blood, but his urine tested positive for cocaine. Trial testimony indicated that the presence of metabolites of a drug in urine but not in the blood would indicate that a drug had “cycled out” of the system.

The items seized from Finn’s vehicle and person were also submitted for laboratory testing. Lab tests indicated that the glass pipe and the pen casing both tested positive for the presence of cocaine. But the lab technician testified that because police put the glass pipe and the pen casing inside the same evidence bag, it was possible that one had contaminated the other. The lab technician also testified that the actual amount of cocaine was on a microscopic level and could not be seen by the naked eye.

Among other charges, Finn was charged with possession of a controlled substance and possession of drug paraphernalia; and the case went trial. Finn contends that the trial court erred by denying his motion for a directed verdict on these charges. The jury found him guilty of possession of cocaine, second offense, and other offenses and recommended a sentence of ten years’ imprisonment. The trial court entered judgment accordingly.

Finn appealed to the Court of Appeals, arguing, among other issues, that the immeasurable amount of cocaine found was insufficient to support the possession conviction. The Court of Appeals rejected that argument and affirmed the conviction. We then granted discretionary review.

II. ANALYSIS.

A. Directed Verdict Not Warranted.

Finn argues that the Court of Appeals erred in affirming the trial court’s judgment because his convictions for possession of cocaine and use of drug paraphernalia could not be justified based upon the microscopic amounts of cocaine actually found in his possession. We reject his assertion of error, and we do so especially in light of the fact that the microscopic amounts of cocaine residue found on the ink pen casing and glass pipe were not the only evidence of Finn’s knowing possession of cocaine presented to the jury. The jury also heard the police officer’s testimony that Finn admitted to using his pen casing as a push rod to ingest cocaine and to having used up his cocaine through smoking. The cocaine residue left on the pen casing or glass pipe at the time of Finn’s arrest was not necessarily the only cocaine that the jury believed Finn to have possessed. In reality, it is likely that the jury believed Finn to have been in possession of a substantially larger quantity of cocaine on or around the date of his arrest. As Finn told the arresting officer, he thought that he had already consumed all of his stash of cocaine.

Even assuming that the jury only believed Finn to have been in the possession of the microscopic amount of cocaine residue found on the glass pipe or push rod, we find no reversible error because the evidence showed that Finn knowingly possessed cocaine; and our statutes and precedent do not require that the amount of cocaine or other controlled substance exceed some minimum quantity threshold. Possession of any amount — no matter how small — of a controlled substance suffices for a first-degree possession of controlled substances conviction so long as the person has knowingly and unlawfully possessed the substance.

Kentucky Revised Statutes (KRS) 218A.1415(1) states that a person is guilty of Possession of a Controlled Substance in the First Degree “when he knowingly and unlawfully possesses: a controlled substance ... that is classified in Schedules I or II which is a narcotic drug....” Cocaine is a Schedule II narcotic drug. And we have long held that “[cjocaine residue is, in fact, cocaine and we find no argument to the contrary.” Despite the fact that some other courts in other jurisdictions may require that the government prove that the defendant possess a “usable quantity” of a controlled substance to sustain a conviction for possession of a controlled substance, we have consistently held under Kentucky law that the possession of any amount of a controlled substance suffices to meet the actus reus (forbidden act) requirement of KRS 218A.1415(1): unlawful possession of a controlled substance. And the General Assembly has not seen fit to amend materially the possession statute to require possession of a particular threshold amount of the controlled substance, such as a weigha-ble amount, a usable amount, or an amount visible to the naked eye.

We see no reason to depart from our precedent despite Finn’s argument that the use of the term “any quantity” in KRS 218A.1415(1) would not include mere residue, especially a microscopic amount of such residue. Finn premises this argument on selected dictionary definitions of quantity that indicate that may mean an amount that can be measured. We consider it more likely that the legislature intended any quantity to mean any amount in accordance with common usage.

Finn also contends that as the legislature explicitly allows the presence of drug residue on an item to be considered as evidence that the item is drug paraphernalia and because the statutes theoretically could — but do not define — residue as any quantity, any quantity must necessarily mean more than drug residue. Although his argument is somewhat hard to follow, it appears that he contends that the legislature did not intend to criminalize the possession of mere residue (or traces) of controlled substance on drug paraphernalia under the drug possession statute. According to Finn, the appropriate conviction would only be for possession of drug paraphernalia because drug possession convictions should be reserved for possession of a more sizeable amount than mere residue. Finn asserts that the mentioning of the presence of residue in the drug paraphernalia statute:

[Sjuggests that the legislature had a desire to punish the intent to use or use of illicit drugs, but did not wish to punish those persons who possessed drug paraphernalia with a filmy residue as harshly as someone who possessed rock or powder cocaine, pills or methamphetamine, for that matter. Moreover, most Americans have daily contact with cocaine residue.

Finn also asserts that “[practical considerations require that the ‘any quantity’ provision of KRS 218A.1415[ (1) ] and the use of the word ‘residue’ in KRS 218A.510(5) are to be defined in different manners. The ‘any quantity provision [in drug possession statutes] must be construed to mean at least more than mere film or microscopic levels” and suggests that possession of “mere film or microscopic levels” would be better punished as possessing drug paraphernalia.

But the evidence in the case at hand proved that not only did Finn possess and use drug paraphernalia but also that he was knowingly in possession of cocaine by his own admission to a police officer. Because the Commonwealth adduced sufficient evidence to convict Finn of both offenses, we find no error in the trial court’s denial of a directed verdict.

We recognize that the mere possession of microscopic amounts of a controlled substance, by itself, without evidence that the defendant knew he possessed such a substance, would not satisfy the statutory elements of first-degree possession of a controlled substance. But when a defendant possesses even a microscopic trace or residue of a controlled substance and the evidence shows that the defendant knowingly possessed it, we find no error in the defendant being convicted of first-degree possession of a controlled substance.

Finn cites a number of cases from other jurisdictions that he claims hold that a conviction for drug possession cannot be premised on minute quantities of drugs invisible to the naked eye. These decisions are not binding on this court, and we will not address them in any depth other than to note that the Texas caselaw cited by Finn for the proposition that convictions for possessions of microscopic amounts of controlled substances (invisible to the naked eye) are not permitted does not seem to represent the current controlling rule in that jurisdiction. Rather, a majority of the members of the Texas Court of Criminal Appeals, sitting en banc, has held that “the [Texas] Court of Appeals erred in requiring the controlled substance to be visible to the naked eye in order to support appellant’s conviction [for drug possession].” A justice concurring in that judgment wrote separately to acknowledge that previous Texas precedent requiring that the controlled substance “be visible to the naked eye and measurable” to sustain a drug possession conviction was subject to an exception “when other evidence demonstrates the defendant knowingly possessed the substance,” i.e. evidence beyond mere possession showing the defendant had knowledge of his possession of a controlled substance where the amount of the substance at issue found is too small to be measured. Similarly, other jurisdictions, which might hold that possession of microscopic amounts of controlled substances, standing alone, was insufficient to justify a possession conviction, might recognize an exception when there is other clear evidence that the defendant knowingly possessed the controlled substance. But regardless of the views of other jurisdictions, we simply find no reason under our law to invalidate Finn’s conviction simply because the quantity of cocaine found in his possession at the time of his arrest was not measurable or visible to the naked eye.

In short, we find no reason to require that the prosecution directly prove that the defendant was in possession of the substance in a measurable quantity or a quantity visible to the naked eye when other evidence shows that the defendant knowingly possessed a controlled substance without legal justification. We affirm the decision of the Court of Appeals.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., sitting. All concur.

SCOTT, J., not sitting.

      . See, e.g., Bolen v. Commonwealth, 31 S.W.3d 907, 909-10 (Ky.2000) (rejecting argument that "any quantity” in amended drug possession statute meant a measurable amount and stating that "the quantity of the controlled substance possessed is immaterial to the criminality of the act ..."); Commonwealth v. Shivley, 814 S.W.2d 572, 574 (Ky.1991) (rejecting "usable amount” approach in favor of "any amount” approach under former drug possession statute that did not specify that "any quantity” must be possessed).

      . The arresting police officer testified to Finn’s admission at trial; Finn does not claim any error arising from this testimony.

      . Finn was also convicted of failure to signal, operating a motor vehicle under the influence of a substance that impairs driving ability, and operating a motor vehicle without a license. He was acquitted on a possession of marijuana charge.

      . Finn also raised issues to the Court of Appeals that we do not reach here concerning allegations of improper venue and inconsistent jury verdicts.

      . From our review of the bench conference concerning Finn's motion for a directed verdict, it appears he only requested a directed verdict on the cocaine possession charge and not on the drug paraphernalia charge. Even assuming that he did request a directed verdict on the drug paraphernalia charge, we find no error in the trial court’s denial of his request for a directed verdict on either charge.

      . Finn argued to the Court of Appeals and to this Court that the jury must have based his cocaine possession and drug paraphernalia use convictions solely on the pen casing, which could have been contaminated by the glass pipe found on his person because the jury acquitted him of marijuana possession, meaning, in his estimation, that the jury did not believe any of the items seized from the vehicle belonged to him. But we note that in finding Finn guilty of drug paraphernalia use, the jury found that he "used 'chore boy' brand mesh, a glass pipe, and a white ink pen casing....” So it appears that the juiy did find that Finn used the glass pipe, and the residue on the glass pipe could be attributed to him despite the jury's finding that he was not guilty of possession of marijuana. Further, as the Court of Appeals stated, "it is not inconsistent for the jury to make a finding that the marijuana could have belonged to Finn’s passengerf.]” The jury could have reasonably found that the pen casing did contain cocaine residue despite the risk of cross-contamination, and inconsistency injury verdicts is not necessarily error so long as there is sufficient evidence to sustain each conviction. See, e.g., Commonwealth v. Harrell, 3 S.W.3d 349, 351 (Ky.1999). Because the officer testified that Finn admitted to using the pen casing as a push rod to ingest cocaine, but we are unaware of any direct evidence that Finn possessed marijuana other than the fact that marijuana was found within the glove in his car, perhaps the jury was reasonably convinced of his possession of cocaine and use of drug paraphernalia but had reasonable doubts about his possession of marijuana. In any event, we perceive no reversible error stemming from the juiy’s verdict.

      . KRS 218A.070(l)(d).

      . Shivley, 814 S.W.2d at 573.

      . See, e.g., State v. Vance, 61 Haw. 291, 602 P.2d 933, 944 (1979) (“where the amount [of the controlled substance] is microscopic or is infinitesimal and in fact unusable as a narcotic, the possibility of unlawful sale or use does not exist, and the proscription of possession under these circumstances may be inconsistent with the rationale of the statutory scheme of narcotics control.’’). But see Shivley, 814 S.W.2d at 574 (rejecting "usable amount” approach because "[w]e view this statute as an exercise of the police power in the area of public health. It has effect and legitimacy so far as it can be applied to the accomplishment of a proper function in the area of promoting public health. To permit the possession of an amount of cocaine insufficient for use can in no way be justified as promoting public health.”).

      . Black’s Law Dictionary (8th ed. 2004) defines actus reus as "[t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act....” See also Black’s definition of mens rea as "state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.... Mens rea is the second of two essential elements of every crime at common law, the other being the actus reus.” Id.

        .See, e.g., Bolen, 31 S.W.3d at 909-10 ("Bo-len contends that his conviction for possession of a controlled substance cannot be upheld since the amount of cocaine found in each pipe was not measurable. Testing by the Commonwealth revealed that a non-weighable amount of residue existing on each pipe contained the molecular structure of cocaine .... Bolen asserts that the statute calls for 'any quantity’ and that quantity implies a measurable amount. See KRS 218A.1415(1). This argument is directly contrary to this Court’s holding in Commonwealth v. Shivley,
        [814 S.W.2d 572 (Ky.1991)], that 'possession of cocaine residue ... is sufficient to entitle the Commonwealth’s charge to go to a jury when there is other evidence or the inference that defendant knowingly possessed the controlled substance.’ Id. at 574. Similar to this case, testing in Shivley revealed cocaine residue that could not be accurately weighed. However, this Court declared that the quantity of the controlled substance possessed is immaterial to the criminality of the act. Id. at 573. See also Commonwealth v. Harrelson, [14 S.W.3d 541, 549-50 (Ky.2000)]. Therefore, the existence of cocaine residue on each pipe was sufficient to support a conviction under KRS 218A.1415(1).”).

      .Conceivably, an argument could be made that the "any quantity" language in KRS 218A.1415(1) refers only to methamphetamine and not to Schedule I or II narcotic drugs, such as cocaine, based on the sentence structure of this subsection:
      A person is guilty of possession of a controlled substance in the first degree when he knowingly and unlawfully possesses: a controlled substance that contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers or, that is classified in Schedules I or II which is a narcotic drug....
      (Emphasis added.) Regardless, whether the government must prove that the defendant knowingly possessed "any quantity” of a Schedule I/II narcotic drug or simply must prove that the defendant knowingly possessed a Schedule I/II narcotic drug in order to sustain a first-degree possession of controlled substance conviction, we conclude that the evidence here was sufficient to sustain the conviction.

      . See KRS 446.080(4) (“All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.”).

      . KRS 218A.510(5) ("In determining whether an object is drug paraphernalia, a court or other authority should consider ... [tjhe existence of any residue of controlled substances on the object_").

      . See Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991) ("On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.”).

      . See, e.g., Pelham v. State, 164 Tex.Crim. 226, 298 S.W.2d 171, 173 (1956); Coleman v. State, 545 S.W.2d 831, 835 (Tex.Crim.App.1977), cited in Appellant’s reply brief.

      . Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim.App.1995).

      . Id. at 377 (Baird, J., concurring), citing, e.g., Coleman, 545 S.W.2d at 835.

      . See People v. Vaughn, 200 Mich.App. 32, 504 N.W.2d 2, 5-6 (1993) (noting that prior Michigan precedent holding that “an amount of controlled substance invisible to the naked eye, by itself, is not enough to sustain a [possession] conviction” held open possibility that "other facts and circumstances” could show knowing possession and sustaining possession conviction despite "miniscule quantity" of cocaine directly found in defendant's possession due to evidence that others perceived that defendant used controlled substance from their observations of him and evidence that defendant had destroyed evidence.).


author: Justice NOBLE. VENTERS, J.,

text:
    Brandi CHIPMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000895-DG.
    Supreme Court of Kentucky.
    May 20, 2010.

      Timothy G. Arnold, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Gregory C. Fuchs, Todd Dryden Ferguson, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appel-lee.
   Opinion of the Court by

Justice

NOBLE.

This case involves the disposition of a juvenile convicted in circuit court and sentenced as a youthful offender. The Court of Appeals affirmed. This Court granted discretionary review to address two issues: (1) Does KRS 640.040(4) apply to a youthful offender transferred to the circuit court based on her “use of a firearm” under KRS 635.020(4) when she pleads guilty to a lesser included offense, the elements of which do not reflect the use of a firearm? And (2), in answering the first question, what sources should the court consider? For the reasons set forth below, the Court of Appeals is reversed.

I. Background

Appellant, Brandi Chipman, was a seventeen-year-old girl with no prior criminal history. She bought marijuana from Brandon Vest, and gave him a video camera as collateral until she could come up with the money for the drugs. Later, Vest refused to return the camera, claiming that he had sold it. Learning that Vest still had the camera, Appellant asked three adult males to accompany her while she went to Vest’s apartment to exchange the money for her camera.

One of the adults allegedly brought a gun with him, pistol-whipped Vest, and took various items from the apartment. Appellant claimed that she believed the adults were just going to accompany her while she retrieved her property, and that she did not know one of them had a gun or that any of them intended to rob or hurt any occupants of the apartment.

Appellant was charged with first-degree burglary, first-degree robbery, and second-degree assault. After a preliminary hearing, the district court transferred Appellant to circuit court, where a grand jury indicted her on these three charges. She entered into a plea agreement with the Commonwealth before trial, pleading guilty to second-degree robbery. In exchange, the Commonwealth recommended an eight-year sentence and dismissal of the other charges. She also agreed to testify against the adult males and to help police apprehend two of them who had avoided arrest.

After some discussion, Appellant’s attorney and the Commonwealth agreed that Appellant should be sentenced as a juvenile, not as a youthful offender. The circuit court disagreed, based on its interpretation of the relevant statute, and sentenced Appellant as a youthful offender to sixty-one months’ imprisonment. The court then allowed Appellant to amend her earlier plea to be conditional, in order to allow this appeal.

The Court of Appeals affirmed Appellant’s sentence. This Court granted discretionary review to consider whether Appellant should have been sentenced as a juvenile.

II. Analysis

Whether Appellant should have been sentenced as a juvenile or an adult is a question of law. Consequently, this Court will review the decision of the circuit court de novo. Richardson v. Louisville/Jefferson County Metro Government, 260 S.W.Sd 777, 778 (Ky.2008) (citation omitted).

At common law, through the present day, Kentucky has recognized that children should not be held to the same standard as adults. However, as modern society saw a rise in more heinous crimes being committed by children, concerns about punishment and setting an example soon followed. Consequently, the legislature enacted exceptions to the Juvenile Code by creating a class of offenders known as “youthful offenders,” who are children that are prosecuted and sentenced as if they were adults. Yet, being mindful of the traditional reluctance to treat children as adults, the legislature set a high bar for children to be deemed youthful offenders.

Thus, under the statutory scheme, KRS 635.010-.120 & 640.010-.120, two steps are required before a child will be sentenced as a youthful offender. First, the child must qualify for transfer to circuit court and prosecution as a youthful offender by falling under one of the youthful offender provisions in KRS 635.020(2)-(7). Then, upon conviction in the circuit court, the child may be sentenced as a youthful offender only if he is not “exempt” under KRS 640.040(4). This means that the child’s ultimate conviction must continue to qualify him as a youthful offender under one of the provisions in KRS 635.020(2)-(7). See Canter v. Commonwealth, 843 S.W.2d 330, 331-32 (Ky.1992). As a result, to be properly sentenced as an adult, a child must qualify as a youthful offender both for prosecution and for sentencing. Id.

The only provision which could qualify Appellant as a youthful offender here is KRS 635.020(4). That provision states that a child

shall be transferred to the Circuit Court for trial as an adult if, following a preliminary hearing, the District Court finds probable cause to believe that the child committed a felony, that a firearm was used in the commission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony.

This provision continues: “If convicted in Circuit Court, he shall be subject to the same penalties as an adult offender,” as set forth in this and other statutes.

Appellant does not argue that her initial transfer was improper. Rather, her argument is that she could not be sentenced as a youthful offender because she was “exempt” from such sentencing under KRS 640.040(4). That provision states that: “Any youthful offender convicted of a misdemeanor or any felony offense which would exempt him from KRS 635.020(2), (3), (4), (5), (6), (7), or (8) shah be disposed of by the Circuit Court in accordance with the provisions of KRS 635.060 [juvenile sentencing].” This exemption provision covers KRS 685.020(4), the “use of a firearm” provision at issue in this case.

The effect of this exemption statute was clearly articulated in Canter. Canter was charged with murder and first-degree criminal abuse. She was transferred to circuit court for trial as a youthful offender under KRS 635.020(2) because she was “charged with a capital offense, Class A felony, or Class B felony, [and] had attained age fourteen (14) at the time of the alleged commission of the offense.” The murder charge qualified her for transfer because she was over fourteen and murder is a capital offense, see KRS 507.020(2); however, the first-degree criminal abuse charge did not because that offense is only a Class C felony, see KRS 508.100(2). Canter was ultimately acquitted of the capital offense but convicted of the Class C felony, and then sentenced as a youthful offender.

On appeal, the issue was whether Canter could be properly sentenced as a youthful offender, given that her only conviction was for a Class C felony, a charge for which she could not have been transferred. This Court unanimously held that such sentencing was improper and remanded with instructions to sentence her as a juvenile. Canter, 843 S.W.2d at 332.

In its decision, this Court focused on the crime for which Canter was actually convicted:

A Class C felony, of which Canter was ultimately convicted, certainly would not fall within the purview of KRS 635.020(2); had she originally been charged with only a Class C felony, she clearly would have been exempt from youthful offender status, and disposition would have been pursuant to KRS 635.060 [juvenile sentencing].

Id. The Court then explained the importance of focusing on the conviction for sentencing purposes, rather than on mere charges:

The Commonwealth contends that Canter is not exempt from KRS 635.020(2), because that statute was satisfied when Canter was “charged with a capital offense.” We find the Commonwealth’s position utterly untenable. First, KRS 640.040 is clearly and entirely intended to prohibit certain sentencing alternatives _The Commonwealth’s interpretation would render KRS 640.040(4) a nullity. Secondly, and more fundamentally, we cannot accept the proposition that the final disposition of any offender is dependent upon the original charge rather than the ultimate conviction. We will not presume guilt, and particularly not after acquittal.

Id.

The Canter decision makes it clear that sentencing of children is controlled by the child’s conviction, not any prior charge that may have been the initial basis for transfer. Id. Indeed, as this Court realized in Canter, this is the only way to give KRS 640.040(4) any effect, as that statute requires that certain convictions in circuit court “exempt” children from youthful offender sentencing. Such exemption would be impossible if the sentencing did not depend on whether the ultimate conviction satisfied the youthful offender statutes.

Thus, this case turns on whether the crime of which Appellant was convicted continued to qualify her as a youthful offender. This depends on whether she was actually convicted of a felony in which “a firearm was used.” See KRS 635.020(4).

Despite the clarity of Canter, that case is not dispositive here because KRS 635.020(4) creates a unique problem: it is the only youthful offender provision whose applicability post-conviction will not be self-evident. All other youthful offender provisions require looking at only the class of the crime, the age of the defendant, and perhaps prior adjudications or convictions on his or her record. For that reason, determining whether the relevant provision still applies when fixing a sentence can be done by glancing at the defendant’s conviction and official records. In almost every case the issue will be clear and uncontestable, and a direct application of Canter will allow the court to resolve the issue with little effort.

In contrast, the “firearm was used” provision is fact-specific and requires the court to conduct deeper inquiry. The court must look at the particular facts underlying the conviction because, as the Commonwealth points out in its brief, KRS 635.020(4) covers crimes for which the use of a firearm is not an element but where a firearm was nevertheless used in a particular case. Indeed, the crimes potentially covered by the provision are quite broad: it requires that the “child committed a felony[ and] that a firearm was used in the commission of that felony.”

Seemingly, any felony could qualify under the right set of facts. For example, although first-degree wanton endangerment and reckless homicide need not involve a firearm, see KRS 508.060; KRS 507.050, they certainly could. And the crime for which Appellant pleaded guilty, second-degree robbery, requires that “in the course of committing theft, [s]he use[d] or threaten[ed] the immediate use of physical force upon another person.” KRS 515.030. This could involve — but certainly does not need to involve — the use of a firearm.

However, the seeming breadth of this provision is curtailed because the use of the firearm must be tied to the child. This is because the statute refers to a firearm being “used in the commission of that felony,” referring back to the felony “that the child committed.” KRS 635.040(4) (emphasis added). Thus, the child must use the firearm while committing a felony, or at least be complicit in another person’s use of a firearm. Indeed, this is consistent with the statutory scheme, which subjects children to adult sentencing for only the most heinous and serious of crimes. However, it also underscores the uniqueness of the “use of a firearm” provision because it requires evidence in the record indicating that the child used a firearm in committing the felony; the child’s use of a firearm will not be self-evident from the conviction.

If the use of a firearm is not self-evident from the conviction, it must appear somewhere from the record. In this case, Appellant and the Commonwealth reached a plea agreement before trial, and so no evidence was introduced that might establish Appellant’s use of a firearm. Indeed, other than Appellant’s plea colloquy, no testimony was heard at all. Of course, if this case were tried, the court could have made findings, based on the evidence introduced at trial, about whether Appellant had used a firearm. The disposition of the child depends on whether or not a firearm was used, and so a finding in this regard is necessary to properly fix the sentence. But here, the court had no evidence before it on this point. The court only had the plea, and so the plea must establish Appellant’s use of a firearm. It did not do so.

Of course, if the Commonwealth wishes to preserve the possibility of youthful offender sentencing when negotiating pleas, it could require defendants to stipulate to their use of a firearm (or to their complicity in another’s use of a firearm) as a condition of the plea agreement. In addition, the Commonwealth could require an express, knowing, and voluntary waiver of the right to juvenile sentencing, which would vest the court with the discretion to sentence the defendant under the harsher, adult provisions, if appropriate. See Kozak v. Commonwealth, 279 S.W.3d 129 (Ky.2009).

No such stipulation, agreement, or waiver was made here. In fact, the record makes clear that the Commonwealth’s Attorney had no objection to sentencing Appellant as a juvenile. He told the court: “I have no problem after having had it pointed out to me that she must be treated as a juvenile. The legislature says that in these circumstances [juvenile sentencing is required], then they are the ones that made the policy.” The Commonwealth never objected to juvenile sentencing or argued that Appellant had waived juvenile sentencing. Indeed, the Commonwealth expressly stated that sentencing as an adult was not a condition of the plea. And when the court ruled that Appellant was to be sentenced as an adult anyway, the Commonwealth asked the court to amend her plea to make it conditional to allow the issue to be appealed. In short, the Commonwealth had the opportunity to secure the possibility of youthful offender sentencing, but decided it was not in the interest of justice to do so.

In support of upholding the youthful offender sentencing on appeal, the Commonwealth points to two statements made to the court. Specifically, that Appellant “acknowledged that one of the participants had a ... pistol” during the plea colloquy and that “the Assistant Commonwealth’s Attorney explained for the court that the co-defendant pistol whipped the ’victim.” This does not adequately establish that Appellant used a firearm or was complicit in another person’s use of a firearm.

With respect to the colloquy, Appellant’s agreement with the court that one of the adult males accompanying her “was carrying a .25 caliber pistol” does not establish her use of the pistol. First, this Court has stressed that “use” requires something more than mere “possession” or being “armed.” See, e.g., Darden v. Commonwealth, 52 S.W.3d 574, 577 (Ky.2001) (“We believe the terms ‘possession of a weapon’ and ‘use of a weapon’ are two entirely different concepts.”); Haymon v. Commonwealth, 657 S.W.2d 239, 240 (Ky.1983) (“[T]he General Assembly took pains to distinguish between being ‘armed’ with a weapon and the ‘use of a weapon’ in the burglary statute.”). Carrying a firearm is synonymous with possessing or being armed with a firearm; Appellant did not state that the firearm was used by her or anyone.

Second, and more importantly, this statement is not an admission that the pistol was used by Appellant. As noted above, KRS 635.020(4) requires that the child use the firearm (or be complicit in its use). Appellant admitted that one of her co-defendants happened to have a gun. This is a far cry from admitting to even a personal connection to the gun, much less a personal use, especially since Appellant had maintained throughout the proceedings that she was unaware that her companion had brought the pistol with him.

With respect to the Commonwealth’s statement to the court, Appellant’s use of the firearm cannot be established by the Commonwealth’s theory of the case. “[T]he arguments of counsel are not evidence.” Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.2009). In fact, if anything, the Commonwealth’s belief that juvenile sentencing was appropriate based on the plea suggests that the Commonwealth’s theory was that although Appellant had planned the robbery, she was not complicit in the use of a firearm. But in any event, juvenile dispositions must be based on the underlying conviction, as in Canter, or in the case of the “use of a firearm” provision, based on evidence introduced supporting the underlying conviction. Here, the conviction is based on a plea, which does not in any way show Appellant’s use or complicity in another’s use of a firearm.

In short, the record before the court suggesting that Appellant used a firearm consists of her statement that somebody else possessed a firearm and the prosecutor’s statement about the Commonwealth’s theory of the case. The former is not an admission to her use, as the statute requires; the latter is not proper evidence of any sort. No stipulation to using a firearm was made in the plea agreement, a condition the Commonwealth could have placed during negotiations. This is not enough to conclude “that [Appellant] committed a felony [and] that a firearm was used in the commission of that felony.” KRS 635.020(4). For that reason, Appellant is exempt from youthful offender sentencing by virtue of KRS 640.040(4). Cf Canter, 843 S.W.2d at 332.

III. Conclusion

The Court of Appeals is reversed, Appellant’s sentence is vacated, and the case is remanded with instructions to sentence her as a juvenile under KRS 635.060.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, and SCOTT, JJ., concur.

VENTERS, J., dissents by separate opinion in which SCHRODER, J., joins.

VENTERS, J.,

dissenting.

There is no reasonable doubt in this case that in the second-degree robbery that Chipman committed, a firearm was used to persuade the robbery victim to surrender possession of Chipman’s camera. The Majority opinion imposes an unreasonably narrow interpretation of KRS 635.040(4) in holding that, because the gun was held in the hand of her accomplice instead of her own, she is immune from the enhanced punishment the legislature intended for youthful offenders who commit crimes with guns. While the Majority’s holding may seem benign, even compassionate, in this case of “a seventeen-year-old girl with no criminal history,” its sinister aspect will become glaringly apparent when invoked by youthful gang members with a violent and dangerous past. I therefore dissent.

SCHRODER, J., joins.

      . See KRS 635.020(2) ("capital offense, Class A felony, or Class B felony" by child at least fourteen years old); (3) (“Class C or Class D felony,” with one prior felony adjudication as a juvenile, by child at least sixteen years old); (5) (felony, by child with previous conviction as youthful offender, before eighteenth birthday); (6) (joining lesser charges for youthful offenders under subsection (2)); (7) (felony committed before eighteenth birthday by person who is at least eighteen years old); (8) (joining certain offenses).