source: Caselaw Access Project

author: Justice NOBLE. MINTON, C.J.,

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. Larry Joe STAMBAUGH, Appellee. Larry Stambaugh, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2008-SC-000600-MR, 2008-SC-000622-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    Rehearing Denied Jan. 20, 2011.

      Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellant/appellee, Commonwealth of Kentucky.
    Joseph Brandon Pigg, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellee/appellant, Larry Joe Stambaugh.
   Opinion of the Court by

Justice NOBLE.

I. INTRODUCTION

One issue in these combined appeals requires us to determine whether a defendant convicted of committing two or more felony sex crimes against two or more victims is subject to the statutory cap on sentences found in Kentucky Revised Statutes (KRS) 532.110(l)(c). After closely examining the relevant law and arguments of the parties, we conclude that the cap does apply to such a defendant.

II. FACTUAL AND PROCEDURAL HISTORY

A jury convicted Larry Joe Stambaugh of committing two counts of first-degree sexual abuse of H.M.S., who was less than twelve years of age; one count of first-degree sexual abuse of M.R.S., who was less than twelve years of age; and one count of first-degree sexual abuse of M.E.S., who was less than twelve years of age. The jury recommended that Stam-baugh be sentenced to ten years’ imprisonment for each conviction, to be served consecutively, for a total effective sentence of forty years’ imprisonment.

After considering the arguments of counsel, however, the trial court sentenced Stambaugh to a total of twenty years’ imprisonment because it believed it had “no choice absent further direction from the appellate courts to cap the sentence recommended by the jury at twenty ... years pursuant to KRS 532.110(l)(c).”

The Commonwealth filed an appeal to this Court, claiming that the trial court erred when it concluded that it only had the authority to impose a maximum twenty-year sentence upon Stambaugh. Stam-baugh filed an appeal as a matter of right, alleging error in the trial court’s exclusion from evidence of a letter purportedly written by M.R.S. We consolidated the two appeals and resolve each in this opinion.

III. ANALYSIS

A. KRS 532.110(1) (c) Limits Stambaugh’s Sentence.

This case revolves around the proper interpretation of KRS 532.110(l)(c) and (d). KRS 532.110 provides, in pertinent part, as follows:

(1) When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, the multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years; and
(d) The sentences of a defendant convicted of two (2) or more felony sex crimes, as defined in KRS 17.500, involving two (2) or more victims shall run consecutively.

The intent of KRS 532.110(1) is to first recognize the discretion of the trial court in imposing sentence in criminal cases, and then to list the exceptions the legislature imposed on that discretion. There are four areas of exception, including that the aggregate of indeterminate terms cannot exceed the maximum length for the longest extended term which would be authorized under the PFO statute for the highest class of crime for any of the convictions, and never more than 70 years; and that two or more felony sex offenses involving two or more victims must run consecutively-

Since Stambaugh’s victims were all less than twelve years of age, his sexual abuse convictions were all Class C felonies. The maximum permissible aggregate prison term in KRS 532.080 to which a person convicted of Class C felonies could be sentenced is twenty years. So a defendant convicted of multiple Class C felonies typically would be subject to a maximum aggregate punishment of twenty years’ imprisonment.

KRS 532.110(l)(d) provides, in essence, that a person convicted of two or more qualifying sexual felonies involving two or more victims must be sentenced to consecutive terms of imprisonment.. There is no question that Stambaugh’s four convictions for sexual abuse in the first degree are qualifying sexual felonies for purposes of KRS 532.110(l)(d). There is also no question that Stambaugh’s crimes were committed against multiple victims, three to be exact, as is required for KRS 532.110(l)(d) to apply. Accordingly, there is no doubt that the provisions of KRS 532.110(l)(d) apply to Stambaugh.

In plain language, in this case KRS 532.110(l)(d) would appear to require Stambaugh to be sentenced to four consecutive ten-year sentences for a total maximum sentence of forty years’ imprisonment. On the other hand, subsection (l)(c) of that same statute would appear to cap Stambaugh’s sentence at a maximum of twenty years’ imprisonment. This appears to create an inconsistency between the two subsections of the statute.

Of course, we must attempt to harmonize seemingly divergent statutory directives if it is reasonably possible to do so. And Stambaugh contends the two subsections at issue can be harmonized. According to Stambaugh, the mandatory consecutive sentencing provision of KRS 532.110(l)(d) applies only until the general sentencing cap of KRS 532.110(l)(c) has been met. In other words, the trial court in the case at hand would have been required to sentence him to consecutive terms of imprisonment until the total term of imprisonment reached twenty years— the cap under KRS 532.110(l)(c) — after which any remaining sentences must be ordered to run concurrently. Ultimately, we conclude that Stambaugh’s proposed reading is a reasonable way to harmonize the two subsections of the statute.

All subsection (l)(d) says is that sexual offenses must run consecutively. For example, three convictions for sex abuse in the first degree, where it is a Class D felony, with a maximum penalty of five years (and a maximum “extended term” of 20 years under the PFO statute), could all be run consecutively with no impact on subsection (l)(c) at all. Thus when the consecutive sentences for lesser sex crimes are less than 20 years, the two sections obviously cannot be in conflict. The intent behind (l)(d) was to remove judicial discretion when sentencing sex offenses generally by requiring that the sentences be run consecutively. Had (l)(d) not been enacted, sentencing courts, under the text of subsection (1) could run lesser sexual offenses concurrently, leading to a scenario where a trial court could, at the extreme, sentence a sex offender convicted of fifty counts of sex abuse to one year in prison. The legislature acted to remove that possibility in sex crime cases, reflecting the general public’s view that these crimes are particularly heinous, and sex offenders should not be able to receive unduly light treatment. However, none of this conflicts with the purpose of (l)(c).

For years, state governments, and particularly Kentucky, have struggled with prison overcrowding. Incarceration carries a steep cost to the taxpayer. In enacting (l)(c), the legislature determined that there must be a reasonable limit on the amount of time given for punishment, doing a cost-benefit analysis. In doing so, the legislature focused on the aggregate of consecutive terms, and specifically limited the aggregate time served to not exceed the maximum length for the longest extended term which would be authorized under the PFO statute for the highest class of crime for any of the convictions. The legislature even went further, and made sure that a sentence of life could not be imposed by expressly stating that “in no event” could the aggregate of sentences exceed 70 years. The mandatory nature of the “in no event” language and the use of “shall not” in (l)(c) indicate the strength of the legislature’s intentions about aggregate sentences.

Admittedly, subsection (l)(d) was enacted after (l)(c), and the legislature did not state whether (l)(c) controlled over (l)(d) (though it clearly could have). But neither did the legislature say that (l)(d) controlled over (l)(c). Such a statement was unnecessary, because the mandatory language in (l)(c) speaks for itself, and the intent of (l)(d) — to prevent light sentences in sex offenses — is not harmed by limiting the aggregate length of time to serve any more than any other category of felony. The two sections operate independently of each other until the highest classes of sex offenses become the convictions. Unless the legislature intended to eviscerate (l)(c) in sex offense cases, there is no reason to read more into (l)(d) than is there. The language in (l)(c) is clear and mandatory, and can certainly be applied to sex offenses the same as any other type of offense. Since the two subsections have entirely different purposes, it is not surprising that the legislature saw no need for undue verbiage.

It is clear, then, that the legislature intended for sentencing judges to rim sex offense sentences consecutively, but with a limit on the allowable aggregate sentence. Under such a reading, this Court gives effect to both subsections of KRS 532.110, which we are required to do, if possible, when construing a statute, and also here under the rule of lenity.

As such, the trial court’s imposition of consecutive sentences but with an maximum aggregate of twenty years was not erroneous.

B. No Reversible Error in Refusal to Admit Letter

Stambaugh contends the trial court erred by refusing to allow him to attempt to impeach M.R.S. with an undated, unsigned letter she had purportedly written to Stambaugh. The letter generally provides that its author loved the recipient, who is repeatedly referred to as “Dad” or “Daddy.” The trial court refused to allow Stambaugh to impeach M.R.S. with the letter because it had not been provided to the Commonwealth in discovery.

On appeal, the Commonwealth contends that: (a) the issue is not properly preserved for review because Stambaugh raises on appeal a different reason for the letter’s admissibility than he did at trial; (b) the trial court correctly excluded the letter because it was not properly disclosed in discovery; and (c) any error is harmless. Although the letter appears to have not been subject to disclosure in discovery and the issue appears to have at least arguably been preserved, we ultimately agree with the Commonwealth that any error is harmless.

We begin by noting that it appears that Stambaugh is correct when he asserts that the letter was not subject to reciprocal discovery under our precedent. The reciprocal discovery order issued by the trial court required Stambaugh to provide the Commonwealth with “reciprocal discovery as specified in RCr [Kentucky Rules of Criminal Procedure] 7.24(3)(A)(i).” We recently held that a defendant was not required in discovery to provide the Commonwealth with audiotaped statements of a witness because the discovery agreement in that case, like the one at hand, only required a defendant to provide reciprocal discovery under RCr 7.24(3)(A)(i), a rule that we determined “only required Appellant to provide the Commonwealth with scientific results[,]” and, thus, did “not apply ... to the audiotaped statements.” The Commonwealth does not attempt to distinguish Gray. And Gray plainly applies to this case. Because the letter at issue in the case at hand is not a scientific result or report, the trial court may well have erred by excluding it as a purported discovery violation by Stambaugh.

It appears that this issue was, at least arguably, adequately preserved for our review. The Commonwealth contends it is not properly preserved because it alleges that Stambaugh did not raise unequivocally to the trial court our holding in Gray. From the brief bench conference held on this issue, we know that the question of whether the letter was encompassed by the discovery order was brought before the trial court, although without a discussion of our holding in Gray. So we conclude that the issue was at least arguably preserved because the parties’ arguments “adequately alerted” the trial court to the issue. The best method of preserving an issue, of course, is to raise it specifically and completely to the trial court and then to present the same argument(s) to an appellate court. Better practice, therefore, would have been for Stambaugh to have cited Gray to the trial court. But Stambaugh is ultimately not entitled to relief, even if we assume the issue is adequately preserved, because any error by the trial court was harmless.

M.R.S. specifically testified that Stambaugh placed his penis — which she testified Stambaugh called his “mean chocolate,” a fact that M.R.S.’s mother corroborated — inside her vagina, which she called her “kitty.” M.R.S. also testified that she saw Stambaugh place his tongue and fingers on H.M.S.’s “kitty” and, furthermore, that she (M.R.S.) saw Stambaugh place his finger in M.E.S.’s “middle part.” M.R.S. also testified that Stambaugh threatened to harm her if she disclosed that sexual contact. M.R.S.’s mother also testified that she saw Stambaugh touching H.M.S.’s “kitty” with his finger and with his penis. The mother also testified that she saw Stambaugh touch M.E.S.’s “kitty.”

In an effort to counteract this damning testimony, Stambaugh was purportedly going to use the letter, which he claims M.R.S. wrote to him, to: (1) impeach M.R.S. regarding whether she had written him a letter since he left her home, (2) impeach M.R.S. regarding her denial that she referred to Stambaugh as “Dad” or “Daddy,” and (3) impeach M.R.S. regarding her denial that she told Stambaugh she loved him.

Although perhaps impeachment on those three matters would have had some theoretical probative value, none of those three areas of impeachment would have contradicted M.R.S.’s testimony about the sexual contact Stambaugh foisted upon her. At most, those three areas of impeachment would have highlighted M.R.S.’s affection for Stambaugh. Whether M.R.S. did or did not have affectionate feelings for Stam-baugh is irrelevant to whether Stambaugh subjected her to sexual contact. Moreover, two physicians testified that they saw a “notch” in M.R.S.’s hymen. One of the physicians described such a notch as being unusual, although that same physician did agree that things other than sexual contact could conceivably have caused such a notch.

Considering all the evidence in this case, we conclude that any error in the exclusion of the letter was certainly harmless. In other words, we conclude that the trial court’s refusal to permit Stambaugh to impeach M.R.S. with an undated, unsigned letter purporting to show that M.R.S. missed and loved Stambaugh did not “substantially sway[]” the verdict in this case.

IY. CONCLUSION

For the foregoing reasons, Larry Joe Stambaugh’s four convictions and sentences for sexual abuse in the first degree are affirmed.

ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur.

MINTON, C.J., dissents by separate opinion in which CUNNINGHAM, J., joins.

MINTON, C.J.,

dissenting:

I agree with the majority that there is a conflict between KRS 532.110(l)(d) and KRS 532.110(l)(c). But I strongly disagree with the majority’s resolution of that conflict. So I respectfully dissent from the majority’s conclusion that the general sentencing cap of KRS 532.110(l)(c) controls the mandatory consecutive sentencing provision for certain sexual offenders set forth in KRS 532.110(l)(d).

Of course, because the interpretation and construction of statutes is a matter of law, we owe no deference to the trial court’s construction of KRS 532.110. Instead, we should resolve this statutory conflict ourselves by using the accepted canons of statutory construction. I conclude that the majority’s conclusion runs afoul of two of those canons of construction.

First, the majority’s conclusion is contrary to the canon that provides that specific statutes control over general statutes. Among the most basic tenets of statutory construction is the familiar rule that when construing two conflicting statutes involving the same subject matter, “the more specific statute controls over the more general statute.” Clearly, KRS 582.110(l)(d), which deals only with mandatory consecutive sentences for certain sexual offenders, is far more specific than the general sentencing cap set forth in KRS 532.110(l)(c). The majority does not address this important canon of construction. It simply cannot be squared with the majority’s conclusion.

Second, the majority’s conclusion is contrary to the canon that counsels that later-enacted statutory provisions take precedence over older statutory provisions dealing with the same subject matter. KRS 532.110 was first enacted in 1974. But the provision in subsection (l)(d) mandating consecutive sentences for some defendants convicted of sexual felonies, such as Stam-baugh, was not enacted until 2006, by which time the sentencing cap in subsection (l)(c) had already been enacted. Because it is the later enactment, the directive in KRS 532.110(l)(d) mandating that felons such as Stambaugh be sentenced to consecutive terms of imprisonment must control over the contradictory general cap on sentences found in KRS 532.110(l)(c). The majority acknowledges in passing that subsection (l)(d) was enacted after subsection (l)(c) but, nonetheless, concludes that subsection (l)(c) controls subsection (l)(d).

And what authority does the majority cite for failing to employ these two basic tenets of statutory construction? None.

The majority merely divines that the General Assembly must have wanted the general cap found in subsection (l)(c) to control over the specific, mandatory consecutive sentencing provisions of subsection (l)(d) because our prisons are crowded and the costs of incarceration are high. Although the correctional facilities of this Commonwealth may be crowded and expensive to operate, the majority is unable to cite anything in either the record of this case or any prior decision of this Court to support the majority’s conclusion that these factors were ever considered by the General Assembly when it enacted the mandatory sentencing provision of subsection (l)(d). Indeed, why would the General Assembly logically have enacted any such mandatory consecutive sentencing statute if it had been concerned with prison costs and overcrowding? It strains credulity to conclude that the General Assembly would ever have determined that prisons were too crowded or too expensive to house recidivist sexual offenders such as Stambaugh.

There is nothing in either subsections (l)(c) or (l)(d) of KRS 532.110 that plainly states, or even hints, that the mandatory consecutive sentencing directive in subsection (l)(d) must yield to the general cap on sentences in subsection (l)(c). If the General Assembly had intended for the specific, new mandatory sentencing provision of subsection (l)(d) to be subordinate to the general, existing statutory cap found in subsection (l)(c), would not it have plainly said so? After all, the traditional methods of statutory interpretation would have, until today, caused the later-enactéd statute to take precedence over any conflicting, earlier-enacted statute. And we, as a reviewing court, must make the fundamental presumption that the General Assembly was aware of its previous enactments when it enacted a new statute on the same subject.

The majority opines that the General Assembly did not say that the cap in (l)(c) controlled over the mandatory consecutive sentencing provision in (l)(d) because “[s]uch a statement was unnecessary, because the mandatory language in (l)(c) speaks for itself....” I disagree.

First, the language in subsection (l)(d) is also mandatory in nature, as evidenced by the presence in that subsection of the mandatory verb shall. Why is the earlier-enacted, less specific mandatory language contained in KRS 532.110(l)(c) somehow more mandatory than the later-enacted, more specific mandatory language in KRS 532.110(l)(d)?

Second, I believe it far more likely that the General Assembly believed a statement as to which subsection of KRS 532.110(1) would control was unnecessary because it relied upon any reviewing court to follow the canons of statutory construction regarding later-enacted and more specific statutes controlling earlier-enacted and more general statutes. Although better practice surely would have been for the General Assembly to have made its intent unmistakable and plain, I believe the majority errs by concluding that the General Assembly’s silence supports its conclusion.

In summary, the majority correctly notes that there is a conflict between subsections (l)(c) and (l)(d) of KRS 532.110. But I believe the majority errs by holding that the older, more general provision of subsection (l)(c) of that statute takes precedence over the more recently enacted and more specific subsection (l)(d) of that statute. So I believe the trial court was required to apply KRS 532.110(l)(d) to sentence Stambaugh to consecutive terms of imprisonment for all of his qualifying felonies (ie., a cumulative sentence of forty years’ imprisonment).

I would reverse Stambaugh’s sentence and remand this matter to the trial court for re-sentencing in accordance with KRS 532.110(l)(d). Because the majority regrettably comes to a different conclusion, I respectfully dissent from section 111(A) of the majority opinion.

CUNNINGHAM, J., joins.

      . Ky. Const. § 110(2)(b).

      . See KRS 510.110(2) ("Sexual abuse in the first degree is a Class D felony, unless the ' victim is less than twelve (12) years old, in which case the offense shall be a Class C felony.”).

      . See KRS 532.080(6)(b) ("If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.").

      . KRS 532.110(l)(d) applies to felony sex crimes, as defined in KRS 17.500. KRS 17.500 defines a sex crime as, among other things, "[a] felony offense defined in KRS Chapter 510” KRS 17.500(8)(a). Sexual abuse in the first degree is codified as part of KRS Chapter 510, specifically at KRS 510.110.

      . See, e.g., Commonwealth v. White, 3 S.W.3d 353, 354 (Ky.1999) ("Where there is an apparent conflict between two statutes, the Court is obliged to attempt to harmonize the interpretation of the law so as to give effect to both statutes.”).

        . Gray v. Commonwealth, 203 S.W.3d 679, 685 (Ky.2006). See also Jones v. Commonwealth, 237 S.W.3d 153, 156 (Ky.2007) (explaining that in Gray, "[w]e ... expressly rejected the notion that RCr 7.24 encompasses anything not explicitly covered by the rule by holding that RCr 7.24(3)(A)(i) applies only to results or reports of scientific tests or experiments.” (internal quotation marks omitted)).

      . In fact, the Commonwealth does not cite Gray in either its initial or reply briefs.

      . Hardin v. Commonwealth, 428 S.W.2d 224, 226 (Ky.1968) ("While the objections were not .sharply to the point we think they adequately alerted the trial judge to the proposition. ... ”).

      . See KRS 510.110(1 )(b)(2) (providing that a person is guilty of sexual abuse in the first degree when he or she “subjects another person to sexual contact who is incapable of consent because he or she ... [i]s less than twelve (12) years old”).

      . Stambaugh goes to great lengths to argue that one physician disagreed with the other regarding this notch. The disagreement concerned whether the notch was at the seven o'clock position or at the five o’clock position, an issue that is quite secondary to the larger issue of whether such a notch existed at all.

      . We have considered the strange testimony of the children's mother in making our harmless error determination. Essentially, the mother, who was herself charged with complicity to Stambaugh’s crimes and pleaded guilty to lesser charges, stated that she, along with her sister, had concocted the allegations against Stambaugh. But the mother also tes-tiffed that she would never have set up Stam-baugh and that if her daughter said something happened, then something happened. The mother’s vacillating story, which includes an accusation, a recantation, and a recantation of the recantation, does not alter our conclusion regarding the harmlessness of any error in refusing to permit Stambaugh to impeach M.R.S. with the letter.

        . Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009) ("A nonconstitutional evidentiary error may be deemed harmless ... if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.”).
      Indeed, we also would find the error to be harmless beyond a reasonable doubt if we assumed, as the Commonwealth seems to do in its reply brief, that the error in excluding the letter is somehow of constitutional magnitude. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . See, e.g., Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.2007) ("The trial court's and Court of Appeals’s construction of statutes is also entitled to no deference on appeal because statutory construction is a matter of law subject to a de novo standard of review.”).

      . See, e.g., Light v. City of Louisville, 248 S.W.3d 559, 563 (Ky.2008).

      . See, e.g., Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 491 n. 4 (Ky.2009) ("While we conclude that KRS 13A.100(1) and KRS 13A.120(1) are fully reconcilable, it is worth noting that were they thought to conflict, the more recently enacted statute, KRS 13A.100(1), which the General Assembly adopted in 1990 (1990 Ky. Acts Ch. 516), would control over KRS 13A.120, which was adopted in 1986.... ”).

        . See 2006 Ky. Acts Ch. 182 (H.B.3) § 47.

      . See, e.g., Rose v. Turner, 301 Ky. 272, 275, 191 S.W.2d 397, 398 (1945) ("It is fundamental that in the enactment of a more recent statute, prior enactments on the same subject are presumed to have been in the mind of the Legislature.").

      . See KRS 446.010(30) ("As used in the statute laws of this state, unless the context requires otherwise ... "Shall” is mandatory-”).


author: Justice ABRAMSON.

text:
    Janet HAMMONS and Jillisa Hammons, Appellants, v. Rosa HAMMONS, Appellee.
    No. 2009-SC-000155-DG.
    Supreme Court of Kentucky.
    Nov. 18, 2010.

      Reginald Leonard Thomas, Lexington, KY, Counsel for Appellants.
    Gerry L. Calvert, Thomas H. Burnett, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Dr. James W. Hammons died testate on August 11, 2006, leaving his entire estate to his wife, Rosa Hammons (Rosa), for her lifetime. The will vests Rosa with the power to invade the corpus of the estate whenever the income from the estate, plus any money or property she individually possesses, becomes insufficient to provide for her proper maintenance and medical care. After Rosa’s death, any remaining assets in the estate devolve to the testator’s daughters, Janet and Jillisa Ham-mons (Janet and Jillisa). In a suit brought by the daughters, the Fayette Circuit Court held (1) Rosa owns a life estate in all the property owned by the testator at his death; (2) Rosa has the exclusive right to occupy and control the property; and (3) Janet and Jillisa are contingent remainder-men. The Court of Appeals affirmed this decision. On discretionary review, Janet and Jillisa contend (1) they received a vested remainder subject to divestment and (2) as vested remaindermen, they have accounting rights, i. e., the right to inspect the property and receive an accounting of both the estate property held by Rosa and her individual property. We reverse the Court of Appeals on the first issue because Janet and Jillisa are vested remaindermen whose interests are subject to divestment, but we affirm on the second issue because Janet and Jillisa do not have accounting rights.

RELEVANT FACTS

Dr. James Hammons, a physician and resident of Lexington, Kentucky died on August 11, 2006. Dr. Hammons provided by will for his wife, Rosa, and his children by a former marriage, Janet and Jillisa. Rosa received a life estate in all of Dr. Hammons’s property and was appointed and qualified as executrix. Janet and Jilli-sa received a remainder interest in their father’s estate. The will provides, in pertinent part:

Item, I
All of my estate of whatever kind and description and wheresoever located, including any devise or bequest which may lapse or become void, I give, devise, and bequeath to my wife, ROSA W. HAM-MONS, for her lifetime. My said wife during her lifetime shall have the right to sell any property received by her under the terms of this Item and invest and reinvest the proceeds thereof in other property, real or personal, in her absolute discretion. Any sale made by my said wife under the provisions of this Item shall be on such terms and conditions, including credit, as she may deem appropriate, and no purchaser of any property so sold by my wife shall be required to see to the reinvestment of the proceeds of the sale. My said wife during her lifetime shall be entitled to all income realized from this property received under this Item. If at any time during her lifetime the income from the property together with such other money and property which she may have is insufficient to provide for her proper maintenance and medical care, she shall be entitled to use so much of the corpus of this devise and bequest as shall be necessary to provide for such purposes, or either of them; i.e. she must have exhausted all property which she has, including principal and income from her property and the income from the property left to her under this Item before she may invade the principal of the property devised to her under this Item. On the death of my said wife, I give, devise, and bequeath, absolutely and in fee simple, all of the assets devised and bequeathed under this Item then remaining, to my daughters, JANET P. HAMMONS and JILLISA S. HAM-MONS, to be divided equally between. In the event either of my daughters should fail to survive me and my said wife leaving no issue surviving her, then such deceased daughter’s part shall pass to her surviving sibling. In the event a daughter of mine should fail to survive me and my wife leaving issue surviving, her part shall pass as she by will appoints, and in the absence of such appointment, her part shall pass to the children of such daughter.
Item II
If my wife does not survive me, then all of my estate of every kind and description and wherever located, including any devise or bequest which may lapse or become void, I give, devise, and bequeath, absolutely and in fee simple, to by daughters, JANET P. HAMMONS and JILLISA S. HAMMONS, to be divided equally between them. In the event either of my daughters should fail to survive me and my said wife leaving no issue surviving her, then such deceased daughter’s part shall pass to her surviving sibling. In the event a daughter of mine should fail to survive me leaving issue surviving, her part shall pass as she by will appoints, and in the absence of such appointment, her part shall pass to the children of such daughter.
Item TV
I make, nominate and appoint my said wife, ROSA W. HAMMONS, Executrix of this my Will and direct that no surety be required of her on her bond, and if she should be unable or unwilling to so serve, then I make, nominate, and appoint my daughters, JANET P. HAM-MONS and JILLISA S. HAMMONS, as co-executrices of this my Will, or either of them, if either should be unable or unwilling to so serve, and I direct that no surety be required of them on their bonds as such.

By amended complaint filed in Fayette Circuit Court, Janet and Jillisa sought a declaratory judgment that Rosa had only a conditional power to transfer property and, before doing so, must first provide an accounting of her assets. Rosa filed a motion for summary judgment, seeking a declaration of rights and order quieting title. The Circuit Court granted summary judgment in favor of Rosa, holding (1) Rosa has an unconditional right to sell any and all estate property and (2) Janet and Jillisa are contingent remaindermen and have no right to inspect or receive an accounting of Rosa’s assets. As noted above, the Court of Appeals affirmed the Circuit Court’s judgment.

ANALYSIS

The proper standard of review on appeal when a trial judge has granted a motion for summary judgment is whether the record, when examined in its entirety, shows there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” CR 56.03. The trial judge must view the evidence in a light most favorable to the nonmoving party, resolving all doubts in its favor. Spencer v. Estate of Spencer, 313 S.W.3d 534, 537 (Ky.2010) (quoting Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991)). Because summary judgment does not require findings of fact but only an examination of the record to determine whether material issues of fact exist, we generally review the grant of summary judgment without deference to either the trial court’s assessment of the record or its legal conclusions. Malone v. Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky.2009) (citing Schmidt v. Leppert, 214 S.W.3d 309 (Ky.2007)). Furthermore, it is well established that “[t]he construction as well as the meaning and legal effect of a written instrument ... is a matter of law for the court.” Morganfield Nat. Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky.1992); see also Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.2007). In such cases, this Court reviews the issue de novo. Cumberland Valley Contractors, Inc., 238 S.W.3d at 647.

The “polar star rule” of wills construction provides that the intention of the testator, if not contrary to the law, controls. Clarke v. Kirk, 795 S.W.2d 936, 938 (Ky.1990). The testator’s intention is derived from considering the will as a whole and no single part may be separated and held up as evidence of the testator’s intent. Id.; Russell v. Johnson, 451 S.W.2d 645, 646 (Ky.1970); Sherley v. Sherley, 192 Ky. 122, 232 S.W. 53, 56-57 (1921). Thus, a court’s primary duty is to ascertain and give effect to the testator’s intent. This task is complicated by the fact that there is seldom precedent directly on point. It has been said no will has a brother, much less a twin. Conlee v. Conlee, 300 Ky. 685, 190 S.W.2d 43, 44-47 (1945). It is rare for two wills to use the same, or even substantially similar, language and “a very slight change in the verbiage calls for a different construction of two wills much alike in other respects.” Id. (quoting Price v. Price, 298 Ky. 608, 183 S.W.2d 652 (1944)). To aid in the construction of wills, courts have established canons of construction, which guide the courts to construe wills in favor of “testacy over intestacy, absolute over qualified estates, and early vesting as against contingent rights.” Lincoln Bank & Trust Co. v. Bailey, 351 S.W.2d 163, 165 (Ky.1961); Clore v. Clore, 184 Ky. 83, 211 S.W. 208, 209 (1919). Courts may use canons of construction only when doubt exists as to the testator’s intent. When a testator employs clear, definite and unambiguous language, there is no need to resort to canons of construction. Conlee, 190 S.W.2d at 46.

I. Janet and Jillisa Hammons Received a Vested Remainder Subject to Divestment.

Rosa argues Janet and Jillisa received a contingent remainder because their ability to take is contingent (1). on there being any property left to take, given Rosa’s ability to invade the corpus, and (2) on them either surviving Rosa or predeceasing her but leaving issue of their own. This interpretation of the will employs a colloquial, rather than a legal, definition of the word “contingent” and reflects a misunderstanding of the distinction between a contingent remainder and a vested remainder.

Whether a testator intended a contingent remainder or a vested remainder is a relatively common question and our case law includes many opinions distinguishing these two types of remainders. Conlee, 190 S.W.2d at 47 (“The mere fact that an estate is to take effect and be enjoyed after the termination of an intervening estate will not prevent both estates from being vested at the same moment.”); Montgomery's Ex’r v. Northcutt, 292 Ky. 622, 167 S.W.2d 317, 320 (1942) (“A remainder interest may be a vested one although the right of possession and enjoyment of the property is made to depend on some uncertain future event.”); Fidelity & Columbia Trust Co. v. Tiffany, 202 Ky. 618, 260 S.W. 357, 359 (1924) (“A vested interest is a present right ... which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future.... A contingent estate is one which gives no present right, but the vesting of which depends upon some uncertain, event in the future, or the happening of a certain event in the future at an uncertain time.... ”); Williamson v. Williamson, 57 Ky. 329, 18 B. Mon. 329 (1857) (“A vested remainder depends upon an event which must happen. A contingent remainder depends on an event which is uncertain and may never happen. A vested remainder is to a person in esse and ascertained. A contingent remainder is to a person not in esse or not ascertained.”); see also Phelps v. Sledd, 479 S.W.2d 894, 897 (Ky.1972); Curtis v. Citizens Bank & Trust Co. of Lexington, 318 S.W.2d 33, 35-36 (Ky.1958); Lincoln Bank & Trust Co. v. Lane, 303 S.W.2d 273, 274-75 (Ky.1957); Hurst v. Russell, 257 Ky. 78, 77 S.W.2d 355, 355-56 (1934); Slote v. Reiss, 153 Ky. 30, 154 S.W. 405, 406 (1913); Roach v. Dance, 26 Ky. L. Rptr. 157, 80 S.W. 1097, 1098 (1904).

In Carroll v. Carroll’s Ex’r, 248 Ky. 386, 58 S.W.2d 670, 672 (1933), the testator left his personal assets in a fund for the care of his wife, with any remaining at her death to his sons, unless “either should die before she does, leaving living children, [in which case] they will get his share.” The Court held the sons had a vested remainder in the trust fund, noting the conditional language, “if either should die before she does, leaving living children .... ” did not convert the vested interest into a contingent remainder. Id.

In Conlee, the testator gave to her husband, “all my estate, personal, real and mixed. To have and to hold during his natural life, to use, occupy and enjoy as he deems proper, and also grant to him a power to sell and dispose of the real estate and invest the proceeds thereof’ with any remainder after her husband’s death to her children. 190 S.W.2d at 44. After discussing the distinctions between contingent and vested remainders, this Court (then known as the Court of Appeals) held the husband took a life estate and the children had a vested remainder because they “were capacitated to take possession of the remainder interest devised to them at any moment after the termination of the life estate.” Id. at 47.

The law makes a further distinction between a contingent remainder and a vested remainder subject to divestment. Unlike a contingent remainder, which does not vest until the happening or non-happening of a condition precedent, a vested remainder subject to divestment vests immediately, though the remaindermen’s ability to take possession depends on a condition subsequent. Bailey, 351 S.W.2d at 164-67; Carroll, 58 S.W.2d at 672 (“On a condition precedent, a title does not pass or vest until it is performed, while a condition subsequent operates by way of a de-feasance of the title that has once vested.”); Tiffany, 260 S.W. at 359; Fulton v. Teager, 183 Ky. 381, 209 S.W. 535, 536 (1919).

In Zinsmeister’s Trustee v. Long, 250 Ky. 50, 61 S.W.2d 887, 890 (1933), the Court noted, “The possibility of defeasance does not transform into a contingent remainder what would otherwise be a vested remainder.” In Lincoln Bank & Trust Co. v. Lane, this Court determined a beneficiary, Francis Ramey, took a vested remainder subject to divestment under the terms of a trust that provided the grantors retained the right to sell the family home but, if they died without doing so, the home passed to their daughter and, upon her death, to Francis Ramey. 303 S.W.2d at 274. The Court found the fact that Ramey could not immediately possess the home did not affect the vested nature of her interest. Id. Nor was her interest “rendered contingent merely because it might be divested by the happening of a condition subsequent. The exercise of the power of disposal by either of the [grantors] would merely divest Frances [sic] Ra-mey of her vested estate.” Id.

By comparison, this Court has found contingent remainders in cases where the devisees must reach a certain age before taking or where the devisees are either unnamed or not yet in existence. In Fidelity & Columbia Trust Co. v. Tiffany, this Court held the grandchildren of the testator received a contingent remainder because of the condition precedent that a grandchild could not receive any income until he reached the age of twenty-two. 260 S.W. at 359. In other words, no grandchild received any benefit from, nor had any vested interest in, the estate until he reached twenty-two years of age. Id.; see also Curtis v. Citizens Bank & Trust Co. of Lexington, 318 S.W.2d 33 (Ky.1958). In Hurst v. Russell, 77 S.W.2d at 355-56, the testator gave his daughter a tract of land for her life, then “to her lawful heirs and assigns forever.” Id. At the time the suit was brought, the daughter had two sons. Id. The Court held they were contingent remaindermen because the word “heirs” designated a class of takers whose members could not be known until the death of their mother (the testator’s daughter). Id. Thus, the grandchildren’s interest was contingent because it could not vest until the mother died and all the members of the class could be determined. Id.

In the present case, Janet and Jillisa are to receive all the assets remaining in their father’s estate after Rosa’s life estate terminates. Should either of them predecease Rosa without issue, that daughter’s share passes to her sister. Should either of them predecease Rosa with issue, the deceased daughter’s share passes either according to her will or to her issue. None of the characteristics of a contingent remainder are present as to Janet and Jillisa’s interests under their father’s will. The estate is not to be withheld from Janet and Jillisa until they reach a certain age or achieve a certain status, nor is their remainder to be shared with an unspecified “heir” or with a class with undetermined members. The remainder was left specifically to “Janet P. Hammons” and “Jillisa S. Hammons,” the born and ascertained daughters of the testator. The amount Janet and Jillisa, (or their children should either daughter predecease Rosa), receive depends on how much of the corpus of the estate Rosa consumes to provide for her own proper maintenance and medical care. These contingencies in the colloquial sense — that there be something left in the estate and that Janet and Jillisa either survive Rosa or leave a child — do not prevent Janet and Jillisa’s interest from vesting immediately upon the death of the testator. They simply create the possibility that Janet and Jillisa may be divested of their interests. In accordance with the copious law on this subject, we hold Janet and Jillisa have a vested remainder subject to divestment.

Construing the will thus is also in keeping with the intention of Dr. Hammons, the testator. It is clear from the will as a whole that he intended to care for both his wife and his daughters, to the greatest extent possible. To that end, he provided for his wife during her life and left whatever remains of his estate “absolutely and in fee simple” to Janet and Jillisa. In the event his wife had predeceased him, he left all of his assets to his daughters. And had his wife been unable or unwilling to serve as executrix, he named his daughters as co-executrices. These provisions make clear Dr. Hammons trusted his daughters and wanted to ensure they would be cared for after his death. Finding he left his daughters a vested remainder is in keeping with this intent and, accordingly, we reverse the Court of Appeals on this issue.

II. Rosa Hammons is Not Required to Provide Notice When She Invades the Corpus or an Accounting of How She Expends the Estate.

The fact that Janet and Jillisa possess a vested remainder does not alter the nature of Rosa Hammons’ life estate or impose on her any duty to account for her use of the property or provide notice when she invades the corpus. A life estate is a freehold interest in property that continues during the life of the life tenant, who may be the property owner or some other person. English v. Carter, 300 Ky. 580, 189 S.W.2d 839, 840 (1945). The life tenant has the same interest in the property the remainderman will have in it after it comes into his possession, except the life tenant may not commit waste. Id.; see also Adams v. Adams, 371 S.W.2d 637, 638 (Ky.1963); Smith v. Harris, 276 Ky. 529, 124 S.W.2d 786, 788 (1939). In general, a life tenant owns the property during the life estate and is entitled to the full use and enjoyment of the property, including the income and profits, though she may not consume any part of the corpus. Taylor v. Yeager, 261 S.W.2d 638, 639 (Ky.1953); English, 189 S.W.2d at 840 (“Free enjoyment is the very essence of a life estate.”). Absent a showing of danger of loss or waste, life tenants are not required to give security for the protection of the remaindermen. Crutcher v. Elliston’s Ex’rs, 299 Ky. 613, 186 S.W.2d 644, 646 (1945); Buckman’s Trustee v. Ohio Valley Trust Co., 288 Ky. 114, 155 S.W.2d 749, 750 (1941).

A life tenant has sometimes been referred to as a trustee, quasi-trustee, or fiduciary in relation to the remainderman, but only in the sense that, like trustees, life tenants have a duty not to injure or dispose of the corpus of the estate to the detriment of the remainderman. Miracle v. Miracle, 260 Ky. 624, 86 S.W.2d 536, 538 (1935); Superior Oil Corp. v. Alcorn, 242 Ky. 814, 47 S.W.2d 973, 987-88 (1931). However, unlike the trustee of a pure trust, a life tenant may use the property for her exclusive benefit, taking the income and profits. Id. This difference, we believe, makes it inappropriate to look to the accounting duties of trustees to find a similar duty on the part of a life tenant.

Trustees are all the more inappropriate figures of comparison because the life tenant’s duty to not encroach on the corpus of the estate is not absolute. The life tenant may consume the corpus if the testator explicitly or implicitly so provides. Louisville Baptist Orphans’ Home v. Igleheart’s Adm’rs, 223 Ky. 702, 4 S.W.2d 693, 693-94 (1928). If the language of the will only implicitly grants the life tenant the power to consume the corpus, the life tenant may not do so without permission from the court. Kincaid v. Bell, 205 Ky. 487, 266 S.W. 44, 45 (1924). In these cases, because the testator has not expressly authorized an invasion of the corpus, the life tenant’s ability to invade the corpus is limited to what is necessary for her support and maintenance, as determined by a court. Id. Subjecting the life tenant to the court’s advice and control protects the remainderman’s interest in the estate. See, e.g., Trustees Presbyterian Church, Somerset v. Mize, 181 Ky. 567, 205 S.W. 674, 674-75 (1918) (ordering the life tenant, who had only an implicit right to invade the corpus for his comfortable maintenance, to report the property he received, including any disposition, receipts, and disbursements). However, if the testator explicitly grants the life tenant the power to consume the corpus, the life tenant need not petition the court and may invade the corpus at her discretion, albeit in accordance with the provisions of the will. Maynard v. Raines, 240 Ky. 614, 42 S.W.2d 873, 873-74 (1931). In these cases, the court respects the testator’s right to dispose of his estate in the manner he sees fit and the concomitant rights of beneficiaries to exercise the rights given them by the testator, provided all is within the bounds of the law. Thus, if a testator intentionally and clearly provides the life tenant may invade or even exhaust the corpus, the life tenant is free to do so at her discretion. Whether, in those circumstances, the life tenant must provide notice or an accounting of his use of the property is a matter of first impression for this Court. However, courts in other states have considered this issue and have held, seemingly uniformly, that, absent evidence the life tenant is abusing her authority, no notice or accounting is required.

The Supreme Court of Iowa held that where a life tenant had the explicit right to encroach upon the corpus and the remain-derman had a vested remainder subject to divestment, the remainderman is not entitled to an accounting of the life tenant’s use of the property, absent a showing of waste, improvidence or fraud. Nelson v. Horsford, 201 Iowa 918, 208 N.W. 341, 341-43 (Iowa 1926). Similarly, the Kansas Supreme Court held that a life tenant who has the power to dispose of or consume the corpus is not required to “furnish an accounting for the protection of the remain-dermen in the absence of a showing of danger of loss or waste.” Matter of Estate of Jud, 238 Kan. 268, 710 P.2d 1241, 1248-49 (1985) (citing In re Estate of Lehner, 219 Kan. 100, 547 P.2d 365 (1976)). The Kansas Court reasoned, when such broad power is given to the life tenant by the will, it is inconsistent with the intent of the testator and overly burdensome on the life tenant to require an annual accounting. Id. The Tennessee Supreme Court ruled a remainderman does not have the right to inspect a life tenant’s records to determine if she is exceeding her rights in the property. Holley v. Marks, 535 S.W.2d 861, 862 (Tenn.1976). The Court stated, “Even though a life tenant has been called a quasi trustee for the remaindermen ... he has no duty to account for his use of the property.” Id.

In Illinois, a life tenant is not required to provide the remaindermen with an accounting of the life tenant’s disposition or management of the estate. Thomas v. First Nat. Bank of Chicago, 134 Ill.App.3d 192, 89 Ill.Dec. 8, 479 N.E.2d 1014, 1029 (1985). In Thomas, the remaindermen argued they did not seek an accounting per se, but rather only as much information as necessary to ensure the life tenant properly exercised her power over the property. Id. at 1028. The court refused to adopt such a distinction and instead affirmed the well-settled law in Illinois, namely that absent an allegation of fraud, malfeasance, or other similar misconduct, a life tenant is not required to provide an accounting of his or her use of the property. Id.

We find the logic and conclusions of these courts consistent with our duty to give effect to the testator’s intent and thus hold that when a life tenant is explicitly given the right to consume or invade the corpus of the estate, absent a showing of waste, she may do so at her discretion without need to petition the court for permission or provide notice of the invasion or an accounting of her use of the property. To require such a life tenant to provide notice or an accounting would be overly burdensome and would run counter to the trust the testator expressly reposed in the life tenant.

In this ease, Dr. Hammons explicitly gave Rosa a life estate with the right to consume the corpus for her proper maintenance and medical care. Item One of the will provides, “If at any time during her lifetime the income from the property together with such other money and property which she may have is insufficient to provide for her proper maintenance and medical care, she shall be entitled tó use so much of the corpus of this devise and bequest as shall be necessary to provide for such purposes.” The testator does attach a stipulation that Rosa must have “exhausted all property which she has, including' principal and income from her property and the income from the property left to her under this Item before she may invade the principal....” This stipulation does not alter the fact that the will gives Rosa the express right to consume the corpus when necessary, consistent with the above-referenced provision regarding exhausting her own property, and indicates she is a competent judge of that necessity. The provisions of the will clearly indicate the testator reposed complete confidence in Rosa. He entrusted her with the care and preservation of his entire estate and, in naming her as sole executrix, he dispensed with the furnishing of any security. Further, he conferred on her the power to sell any real estate on terms and conditions as “she may deem appropriate” and to invest the proceeds “in her absolute discretion.” To require Rosa to periodically establish that her own personal financial circumstances justify an invasion of principal would be inconsistent with the testator’s evident confidence in her good faith and judgment as well as with the law set forth above. For these reasons, we affirm the Court of Appeals on this issue.

Finally, we are compelled to note that our decision today does not leave Janet and Jillisa without remedy or recourse. As a life tenant, Rosa has a duty not to injure the remaindermen in the exercise of her rights. Adams, 371 S.W.2d at 687-38. Thus, if Rosa is committing waste by improperly invading the corpus or misusing the estate, as she herself has noted in her brief to this Court, Janet and Jillisa may bring an action for waste. See e.g., Smith v. Harris, 124 S.W.2d at 786. However, there is currently no allegation of waste.

CONCLUSION

Janet and Jillisa Hammons possess a vested remainder subject to divestment. The conditions subsequent in the will may divest Janet and Jillisa of their interest in the estate, but their interests vested upon the death of their father. Rosa Hammons has a life estate with the right to consume the corpus if necessary for her proper maintenance and medical care. She need not petition the court for permission to do so, provide notice when she invades the corpus, or, absent litigation, provide an accounting of how she expends the property. As noted, however, a life tenant can be liable for damages if a remainderman can establish waste.

For the foregoing reasons, we affirm in part and reverse in part the opinion of the Court of Appeals.

All sitting. All concur.

      . A vested remainder subject to divestment is also referred to as a "defeasible remainder.” Black’s Law Dictionary 1295 (7th ed.1999).

      . No contrary case has been cited to the Court and our research has uncovered no contrary authority.

      . KRS 381.350 provides remedies against a life tenant who commits waste: "If any tenant for life or years commits waste during his estate or term, of anything belonging to the tenement so held, without special written permission to do so, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste is assessed.”
      KRS 381.360 authorizes remaindermen to maintain an action for waste and recover any appropriate damages: "The action for waste may be maintained by one who has the remainder or reversion in fee simple after an intervening estate for life or years, and also by one who has a remainder or reversion for life or years only, and each of them shall recover such damages as he has suffered by the waste complained of.”


author: /s/ John D. Minton, Jr. Chief Justice

text:
    Steven Wayne SEBASTIAN, Movant v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000671-KB.
    Supreme Court of Kentucky.
    Dec. 16, 2010.
   OPINION AND ORDER

Applicant, Steven W. Sebastian, KBA Member No. 88760, bar roster address 1311 Wilshire Court, Union, Kentucky 41091, was admitted to the Kentucky Bar on May 1, 2001. On July 9, 2002, he was suspended from the practice of law for failing to complete the New Lawyer Skills Program following his admission to the Kentucky bar as required by SCR 3.652.

Mr. Sebastian applied for restoration to membership on May 11, 2010 under SCR 3.500. He has paid the dues owed, totaling $1,862, plus the required filing fee. He has also completed the maximum amount of CLE hours under SCR 3.675. There are currently no disciplinary matters pending against Mr. Sebastian, nor has he been the subject of any claims against the Client Security Fund.

Because Mr. Sebastian’s suspension lasted more than five years, his application was referred to the Character and Fitness Committee under SCR 3.500(1) and he was required to sit for a written examination under SCR 3.500(3). The Committee investigated Mr. Sebastian’s circumstances and found that during the time he would have taken the New Lawyer Skills Program in 2001-2002, he was in the process of moving to North Carolina and studying to take the bar exam there. The Committee found that Mr. Sebastian had met the burden of proof required for restoration to membership. His character references described him as trustworthy and competent. As such, the Committee recommended that he be permitted to sit for the July 2010 bar exam.

After receiving the Committee’s report, the Board of Governors reviewed Mr. Sebastian’s application and determined that he had met all requirements for the restoration to the practice of law. By a 16 to 0 vote, the Board voted to recommend approval of his restoration application.

Upon review of the record, this Court agrees that the requirements of SCR 3.500 have been met, including passing the examination required by SCR 3.500(3). This Court, finding no reason to disagree with the Board, adopts its recommendation, and therefore ORDERS:

1. That Steven W. Sebastian be restored to the practice of law in the Commonwealth of Kentucky.

2. That Mr. Sebastian, if he has not done so already, pay the costs of this proceeding as certified by the Executive Director of the Kentucky Bar Association, which total $202.61, for which execution may issue from this Court upon finality of this Order.

All sitting. All concur.

ENTERED: December 16, 2010.

/s/ John D. Minton, Jr.

Chief Justice


text:
    Susan O. PHILLIPS, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000672-KB.
    Supreme Court of Kentucky.
    Dec. 16, 2010.
   OPINION AND ORDER

Following Susan O. Phillips’s application for restoration pursuant to SCR 3.500(2), the Board of Governors of the Kentucky Bar Association has unanimously recommended this Court restore Phillips’s license to practice law in this Commonwealth. Agreeing with the Board that Phillips has satisfied the requirements for restoration, we adopt the Board’s recommendation and order Phillips’s membership in the Kentucky Bar Association be restored.

Phillips, whose KBA member number is 84528 and whose bar roster address is 1010 Monarch Street, Suite 250, Lexington, Kentucky 40513, was admitted to the practice of law in Kentucky in October 1992. On February 26, 2001, she withdrew pursuant to SCR 3.480. She maintains a license in West Virginia, where she works as an attorney for the law firm of Steptoe and Johnson, PLLC. On May 3, 2010, Phillips filed with the Clerk of this Court an application for restoration of membership pursuant to SCR 3.500(2), which permits a former member who has withdrawn, and whose suspension has prevailed for five or more years, to apply for restoration. Pursuant to the requirements in SCR 3.500(2), Phillips included with her application a check for the required fee and a CLE certification showing she completed the requisite number of CLE credits. Phillips passed the July 2010 Reinstatement Bar Examination, was approved by the Character and Fitness Committee, has no disciplinary matters pending against her, and has not been the subject of any claims against the Client Security Fund. Further, Phillips has already paid the costs associated with this proceeding in the amount of $219.61.

Having reviewed the Board’s recommendation, this Court agrees Phillips has satisfied the requirements of SCR 3.500(2) and is deserving of restoration to the practice of law.

Therefore, it is hereby ORDERED that, pursuant to SCR 3.500(2), Susan O. Phillips’s license to practice law in this Commonwealth is restored.

All sitting. All concur.

ENTERED: December 16, 2010.

/s/ John D. Minton, Jr.

Chief Justice


author: Justice NOBLE. MINTON, C.J., ABRAMSON, J.,

text:
    Zelnar TRAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and William Dawson, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2008-SC-000811-MR, 2008-SC-000831-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, Annie O’Connell, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant, Zelnar Travis.
    Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Assistant Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant, William Dawson.
    Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

Appellants Zelnar Travis and William Dawson were both convicted of robbery in the first-degree, possession of a handgun by a convicted felon, possession of a defaced firearm, and being a persistent first-degree felony offender. They were co-defendants and their appeals are being heard together. They appeal their robbery convictions and the related court costs and fines, as well as their convictions as persistent felony offenders. Finding reversible error in the imposition of court costs and fines, we vacate those penalties, but finding no reversible error in the robbery or persistent felony offender instructions, we affirm their convictions and sentences.

I. Background

During the early morning hours of August 21, 2007, police received a call about a man who was possibly hurt in downtown Louisville. When police arrived on the scene, they realized that the individual, while not injured, had been robbed at gunpoint in a nearby housing project. The victim, Timothy Humphrey, was able to provide the officers with a detailed description of the two men who had robbed him. Within an hour, officers had located the Appellants near the robbery site. When the police found the two men, they noticed a loaded, semi-automatic handgun in the grass next to a porch on which they were sitting. The weapon was functional, but the serial number had been scratched off.

According to Humphrey, he was walking to a housing project when he noticed Travis and Dawson stalking him. The two men eventually caught up with him, put him on the ground, held a gun to his head, and searched him for valuables. Humphrey stated that the robbers took his wallet and cell phone. At the end of the confrontation, Travis and Dawson walked away and told Humphrey to leave the housing project. When Travis and Dawson were later apprehended by police, Humphrey identified them as the individuals who robbed him.

After a four-day trial, Travis was convicted of robbery in the first-degree, possession of a handgun by a convicted felon, possession of a defaced firearm, and being a first-degree persistent felony offender. Travis was sentenced to 20 years on the robbery charge and 8 years on the possession of a firearm charge, with those sentences to run concurrently for a total of 20 years, enhanced to 27 years by the PFO conviction. Dawson was convicted of robbery in the first-degree, possession of a handgun by a convicted felon, possession of a defaced firearm, and being a first-degree persistent felony offender. Dawson was sentenced to 20 years on the robbery charge and 8 years on the possession of a handgun charge, with those sentences to run consecutively for a total of 28 years, enhanced to 35 years by the PFO. The trial court additionally imposed court costs in the amount of $130 and levied a “felony conviction fee” (or fine) of $1000 apiece.

Both Travis and Dawson appeal the final judgment entered as a matter of right. Ky. Const. § 110(2)(b). Their appeals have been consolidated for our review, and each appeal raises a number of errors which we will address as necessary.

II. Analysis

A. Imposition of Fine and Court Costs

The Appellants’ first assignment of error is the trial court’s imposition of court costs and fines. According to the Appellants, these fines were improper because the trial court had already recognized their indigent status pursuant to KRS Chapter 31.

Subsection (4) of KRS 534.040 provides that “[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.” Nor may court costs be levied upon defendants found to be indigent. KRS 23A.205(2). At the time of trial, both Travis and Dawson were receiving the services of a public defender, and were granted the right to appeal in forma pauperis. They were clearly indigent. Thus, the trial court clearly erred in imposing a fine and court costs upon the Appellants. See Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky.1994).

Travis and Dawson concede that this error is not preserved for appellate review. “Nonetheless, since sentencing is jurisdictional it cannot be waived by failure to object.” Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky.1985). “Thus, sentencing issues may be raised for the first time on appeal and Appellant is proceeding properly before this Court.” Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky.2007). Fines and costs, being part of the punishment imposed by the court, are part of the sentence imposed in a criminal case. Having the inherent jurisdiction to cure such sentencing errors, this Court vacates the fines and court costs.

B. Unanimous Verdict

The Appellants contend that they were denied their rights to a unanimous verdict on both their first-degree robbery and persistent felony offender charges. On both counts, the Appellants’ argument turns on an alleged defect in the instructions, which they claim deprived them of a unanimous verdict. Before turning to the instructions at issue in this particular case, it is worthwhile to briefly outline the development of our law on this sort of unanimous verdict issue, in light of the fact that these issues have recently been appearing repeatedly.

Toward the end of the 1970s, the Court began to tackle the situation presented in this case, where multiple theories of a crime are presented in a single instruction. See, e.g., Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky.1978). Such an instruction has become known as a “combination instruction.” See, e.g., Johnson v. Commonwealth, 12 S.W.3d 258, 265 (Ky.1999). Wells held that “a verdict can not be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense.” 561 S.W.2d at 88. In other words, multi-pie theories of the same offense can be combined so long as there is sufficient evidence of each. This is because, no matter which theory they accepted, all the jurors convicted under a theory supported by the evidence and all the jurors convicted the defendant of the same offense.

This Court addressed the situation where there is insufficient evidence supporting one of the theories in both Boulder v. Commonwealth, 610 S.W.2d 615, 617 (Ky.1980), and Hayes v. Commonwealth, 625 S.W.2d 583, 584-85 (Ky.1981). In each case, the Court found the combined instruction erroneous because it permitted the jury to convict on a theory unsupported by evidence. See Boulder, 610 S.W.2d at 617 (“They provided alternative grounds for a finding of guilt-either that John intended to cause serious physical injury to ‘Cynthia’ or that he was wantonly engaging in conduct which created a risk of death to ‘Cynthia.’ The state of the evidence, however, is such that it would be clearly unreasonable for a juror to believe that John’s conduct was other than intentional.”); Hayes, 625 S.W.2d at 585.

1. Robbery Instructions

With respect to their convictions for first-degree robbery, Travis and Dawson argue that they were denied a unanimous verdict because the instruction permitted a conviction on a theory of robbery not supported by the evidence. The instructions to which Travis and Dawson take issue are the following:

You will find the defendant, Zelnar Travis [William Dawson], guilty of Robbery in the First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
(A)That in Jefferson County on or about August 21, 2007 Zelnar Travis and/or William Dawson, acting alone or in complicity with one another, stole or attempted to steal property from Timothy Humphrey;
AND
(B) That in the course of so doing and with intent to accomplish the theft, he and/or William Dawson used or threatened the immediate use of physical force upon Timothy Humphrey;
AND
(C) That in the course of the foregoing Zelnar Travis and/or William Dawson were armed with a deadly weapon— .45 caliber semiautomatic handgun.

Specifically, Travis and Dawson point to the language stating that they “attempted to steal property from Timothy Humphrey,” found in part (A) of the instruction. According to both Appellants, the evidence introduced at trial was only that of a completed theft. Therefore, the Appellants contend, allowing the jury to convict them on a theory unsupported by the evidence violated their rights to a unanimous verdict.

The instruction provided to the jury tracks the first-degree robbery statute, detailing the two ways to satisfy the “in the course of committing theft” portion of the statute: stealing property or attempting to steal property. See KRS 515.020. As long as the jury finds from the evidence that Travis and Dawson either “stole” or “attempted to steal” property from Humphrey, it is not critical as to which one to find them guilty of first-degree robbery. Wade v. Commonwealth, 724 S.W.2d 207, 208 (Ky.1986). A defendant who uses physical force with the requisite intent is guilty of robbery regardless of whether any of the property intended to be taken is in fact taken. Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky.2001) (“All the evidence indicates that McKee and Kirkland entered the store with a gun in order to steal money from the victim. The robbery was accomplished at this point”). This reflects a change in the law with the adoption of the Penal Code in 1974, which “ma[de] an important change in the traditional robbery offense,” KRS 515.020 cmt., by shifting the focus from the theft to the force or threat of force aspect of the crime. “With this change, robbery, as an offense against the person, is emphasized while robbery, as an offense against property, is de-empha-sized.” Id.

The language “in the course of committing theft” thus allows the Commonwealth to prove either that a theft was committed or attempted, based on which act the evidence supports. Theft or attempted theft is the action necessary to make the offense a robbery rather than an assault, and in this manner is an “element” of the offense of robbery rather than a separate offense. The “in the course of’ language takes the emphasis in robbery from the property itself, and focuses on actions against a person.

This Court can discern no error by the inclusion of “attempt” language in the jury instructions. There was no evidence or argument that the Appellants did not take Humphrey’s wallet and cell phone. The “theory” of robbery through completion of the theft necessarily encompasses the theory that the Appellants attempted the theft as well. This principle is reflected in how, for purposes of double jeopardy, an attempted theft merges with the completed offense. “A person may not be convicted on the basis of the same course of conduct of both the actual commission of a crime and ... [a] criminal attempt to commit that crime.... ” KRS 506.110(l)(a). The substantive offense is simply a successfully completed attempt.

Logically, then, all the evidence pertaining to the Appellants’ actual taking of property is sufficient to establish their attempt to do so. It is the case, a fortiori, that having proved that the wallet and cell phone were taken, the Commonwealth also proved the attempt to take them. It is disingenuous to argue that having proved that the property was taken, any member of the jury could possibly instead think that only an attempt to take the property had occurred. But even if some member of the jury did believe such, that belief was sufficient to convict for robbery, even though some of the jurors may have believed there was an actual taking rather than an attempt. Either way, and even with a -mixed finding on the taking element, the jury found that the Appellants were guilty of first-degree robbery beyond a reasonable doubt, and there was no lack of unanimity, as either theft or attempted theft satisfies the robbery statute, and the evidence here was sufficient to prove both.

2. PFO Instructions

For their final assignment of error, Appellants argue that the first-degree persistent felony offender instruction permitted a conviction on a theory unsupported by the evidence. Specifically, Appellants contend that the Commonwealth failed to produce evidence to support theories set forth in parts five, six, and seven of the jury instructions, in violation of the rule that a criminal conviction must be by a unanimous verdict. At the time the instructions were tendered to the jury, neither Travis nor Dawson made a timely objection. RCr 9.54(2). Since no objection was made to the instructions, the issue of their appropriateness is unpreserved on appeal. See Hopper v. Commonwealth, 516 S.W.2d 855, 857 (Ky.1974).

The PFO instruction to the jury provided, in pertinent part, as follows:

You will find the defendant, Zelnar Travis, guilty of being a persistent felony offender in the First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt the following:
(1) That prior to August 21, 2007 the Defendant was previously convicted of at least two (2) of the following felony convictions: Theft by Unlawful Taking over $300 by judgment of the Jefferson Circuit Court dated March 1, 1999; Possession of a Handgun by a Convicted Felon by judgment of the Jefferson Circuit Court dated April 19, 2005.
(2) That pursuant to at least two (2) of those prior convictions, he was sentenced to a term of imprisonment of one year or more on each;
AND
(3) That he was 18 years of age or older when he committed at least two (2) of the offenses for which he was so convicted;
AND
(4) That the defendant is now more than 21 years of age;
AND
(5) That the defendant completed service of the sentence imposed on at least one of the previous felony convictions within five years prior to the date of the commission of the offenses charged in this indictment;
OR
(6) That the defendant was on a form of legal release from at least one of the previous felony convictions on the date of the commission of the offenses charged in this indictment;
OR
(7) That the defendant was legally released or discharged from at least one of the previous felony convictions within five years of the date of the commission of the offenses charged in this indictment.

The PFO instruction given for William Dawson was identical to the instruction given to Zelnar Travis, except that paragraph (1) stated:

That prior to August 21, 2007 the Defendant was previously convicted of at least two (2) of the following felony convictions: Possession of a Handgun by a Convicted Felon by judgment of the Jefferson Circuit Court dated July 20, 2001; Escape in the Second Degree by judgment of the Jefferson Circuit Court dated August 18, 2004; Illegal Possession of a Controlled Substance in the First Degree by judgment of the Jefferson Circuit Court dated September 27, 2004.

Both instructions contain superfluous language. In other words, they contain language describing theories of liability that do not relate to any evidence presented or even alluded to at trial. Instead of serving to aid the jury, such language was simply inserted to reflect the various possible theories of statutory liability, notwithstanding their inapplicability to the instant case.

Specifically, in regard to Travis, the record shows that the Commonwealth failed to produce any evidence to show that he had completed serving his sentence or was legally released or discharged within five years of the underlying robbery. In fact, in most cases, such proof would be impossible, as the time periods laid out by the PFO categories rarely overlap. A person may have completed service of a sentence or have been legally released or discharged (i.e. on probation or parole) within five years of the current offense, or have actually been on probation or parole at the time of the offense, but rarely would more than one category apply. And in this case, there certainly was no evidence that more than one of the categories applied to Appellant. Therefore, the inclusion of parts five and seven in the instruction was superfluous and in error.

In regards to Dawson, the record indicates that the Commonwealth failed to produce evidence to support that he was on some form of legal release at the time of the underlying robbery, or that he was legally released or discharged within five years of the charged offense. Accordingly, the inclusion of parts six and seven was in error as applied to him. Id.

As noted above, Boulder and Hayes established that such superfluous instructing on theories insufficiently supported by evidence is error. Twenty years after that pair of cases, this Court held in Burnett v. Commonwealth, 31 S.W.3d 878, 883 (Ky.2000), that when this type of error is preserved, it must always cause the conviction to be reversed. Burnett’s reasoning was based on the fundamental nature of one’s right to a unanimous verdict.

While holding true to that underlying principle, we now step back from our position in Burnett because the error resulting only from superfluous language does not present a pure unanimity problem. On the contrary, such flawed instructions only implicate unanimity if it is reasonably likely that some members of the jury actually followed the erroneously inserted theory in reaching their verdict. If that can be shown, then a unanimous verdict has been denied and the verdict must be overruled. However, if there is no reasonable possibility that the jury actually relied on the erroneous theory — in particular, where there is no evidence of the theory that could mislead the jury — then there is no unanimity problem. Though such a case presents an error in the instructions, namely, the inclusion of surplus language, the error is simply harmless because there is no reason to think the jury was misled. To the extent Burnett mandates reversal in this latter situation, it is now overruled.

Turning back to the case at hand, there was absolutely no evidence to support the two erroneous theories in Travis’s and Dawson’s PFO instructions. Thus, there was no reason at all for any juror to convict either of them as a PFO under those erroneous theories. To do so would have been utterly irrational. As such, there is no real possibility that jurors followed one of the theories presented by the surplus language and, as a result, no real possibility that a unanimous verdict was denied. Thus, even if these instructional errors had been properly preserved for review, they would likely be deemed harmless. Having not been preserved, and subject only to palpable error review, reversal is certainly not warranted under that higher threshold.

III. Conclusion

The judgment of the Jefferson Circuit Court is hereby affirmed as to both Appellants’ convictions for first-degree robbery and as persistent felony offenders, but reversed as to the portion thereof imposing fines and remanded for an entry of judgment consistent with this opinion.

CUNNINGHAM, SCOTT and VENTERS, JJ., concur. MINTON, C.J., concurs in result only by separate opinion. ABRAMSON, J., concurs in result only by separate opinion. SCHRODER, J., concurs in result only.

MINTON, C.J.,

concurring in result only:

I agree with the majority that the error in this case is not sufficiently egregious to rise to the level of being a palpable error. But I believe the majority goes afield by concluding that this type of surplus language in an instruction would be harmless error if it had been properly preserved. Obviously, that conclusion is dicta because the jury instruction issue in question clearly was not preserved for review. Unfortunately, the majority relies upon that dicta to overrule Burnett, a decision that would mandate reversal if this type of issue were properly preserved. Maybe Burnett should be re-examined, but this is not the case for it. Simply put, Burnett’s viability is not squarely before us; and I am reluctant to use dicta to overrule precedent.

By overruling Burnett, the majority ostensibly has concluded that lay jurors would always be wise enough to ignore any superfluous instruction the judge might give. It appears to me that such a conclusion rests upon the dubious proposition that lay jurors have a greater degree of discernment about the evidence presented at trial than do the judges who draw the instructions. After all, an instruction deemed superfluous by the appellate court would not have been submitted to the jury unless the trial judge believed the instruction was necessary and proper. So I am unable to join the majority’s view that a lay juror — mindful of their oath to follow both the evidence and the law as given to them by the trial court — could identify a superfluous instruction and disregard it.

In addition to being unnecessary to the resolution of the case at hand, the majority’s mixing the language of harmless error analysis into this case runs afoul of Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2007). The majority in Martin exhorts appellate courts to “endeavor to avoid mixing the concepts of palpable error and harmless error. One is not the opposite of the other.” Id. at 5. I fear we have failed to follow our own advice by injecting the concept of harmless error into this palpable error case.

Finally, neither a party nor a judge can invade the sanctity of the jury room to determine what arguments or theories any individual juror relied upon in rendering a verdict. So I believe the majority requires an Appellant to complete an insuperable task when it holds that an extraneous instruction can only be palpable error if an Appellant can show that “it is reasonably likely that some members of the jury actually followed the erroneously inserted theory in reaching their verdict.” Slip opinion, p. 463. In practical terms, I believe the majority opinion will stand for the proposition that an Appellant will not be entitled to palpable error relief if he or she fails to object timely to a superfluous instruction, such as the one at hand. Instead of requiring the impossible from Appellants, I would prefer to analyze these types of cases under our traditional, well-settled standards for conducting palpable error review.

Since I do not believe Burnett’s viability is necessarily at stake in this case and because I do not believe we should gratuitously address what relief, if any, Travis and Dawson would be entitled to receive if they had properly preserved this unanimity issue, I only concur with the majority’s conclusion that the instructional errors did not rise to the level of palpable error in this case, I do not join the majority’s overruling of Burnett Because I cannot subscribe to all aspects of the majority opinion, I respectfully concur in result only.

ABRAMSON, J.,

concurring:

I concur with Justice Noble’s cogent analysis but write separately to explain some of my own conclusions about so-called unanimous verdict cases involving superfluous or overly broad language in the jury instructions. Trial judges should not knowingly submit jury- instructions that are overly broad, but such instructions generally do not implicate the constitutional right to a unanimous verdict and thus would not constitute palpable error under the high standard adopted by this Court in Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2007).

In Harp v. Commonwealth, 266 S.W.3d 813 (Ky.2008), this Court concluded that it was palpable error for a trial judge, in a case where the defendant was charged with multiple instances of conduct constituting the same criminal offense, to issue jury instructions containing no specific, distinguishing factors, ie., a series of identically-worded instructions. Harp, like most of the cases in which that particular instructional error arises, involved a young sexual abuse victim who could not remember precise dates but could testify to other facts surrounding each specific occurrence, thus allowing for instructions tailored to each occurrence. In Harp-type cases, the distinguishing factors among several instances of the same type of criminal conduct can include a myriad of things such as where the particular offense occurred, when it occurred in relation to some event in the victim’s life such as a birthday or school event, whether someone walked in on the event, how the victim or perpetrator was clothed as the time and whether the perpetrator made a specific comment or threat. In Harp, we urged trial courts to look carefully at the proof and craft instructions which would guide appropriately the ensuing jury deliberations, assuring that all jurors were focused on one specific instance about which they had heard evidence and that when they voted they were considering whether that particular instance of alleged criminal conduct had been proven beyond a reasonable doubt. Given the confusion which would flow from undifferentiated instructions, there was no difficulty in concluding that the identically-worded instructions in such cases can easily lead to a non-unanimous verdict and constitute palpable error.

The case before us presents a different problem. Instead of imprecise instructions that muddy the waters, we have very precise instructions that conform to the applicable law but are overly broad. The jury, in essence, is being “over-instructed” because they are given instructions that cover, yet go beyond, the case which they have just heard. The specific problem in these cases is there is no evidence whatsoever to support some portion of the instruction. Thus in this case there is no proof to support, for either of the two defendants, at least two of the ways in which one can attain persistent-felony offender status.

In Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000), this Court concluded that an instruction on trafficking that contained superfluous language regarding possession of cocaine with intent to manufacture was unsupported by any evidence and interfered with the defendant’s right to a unanimous verdict. Finding the error adequately preserved, the Court concluded in a 4-3 decision that because of the constitutional requirement of a unanimous verdict, harmless error analysis did not apply. Realistically, where there is no evidence whatsoever to support the overly broad language, there is no real prospect of a non-unanimous verdict, regardless of whether the error is preserved or unpre-served. See Burnett, 31 S.W.3d at 884-85 (J. Graves dissenting) (“The total lack of evidence supporting an alternate theory does, not require reversal.”) Thus, our holding today undermines Burnett’s conclusion that harmless error analysis cannot apply due to a unanimous verdict violation. The immediate question before us, however, is whether, where the error is unpre-served, overly broad instructions result in palpable error.

In Martin, supra, this Court went beyond the language of Kentucky Rule of Criminal Procedure (RCr) 10.26 to amplify the palpable error standard with language drawn from the federal cases, particularly United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), a case in which the United States Supreme Court found no plain error where the indictment failed to set forth a necessary element of the offense, i.e., the quantity of drugs. The Cotton Court applied the four-step test adopted in United States v. Olano, 507 U.S. 725, 118 S.Ct. 1770, 123 L.Ed.2d 508 (1999) which requires (1) error (2) that is plain and that (3) affects substantial rights. Even if those three factors are present, relief is available only if (4) the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 732. Chief Justice Rehnquist, writing for a unanimous Supreme Court in Cotton, concluded that the omission did not satisfy the fourth element of the Olano test. In his words, “the real threat to the ‘fairness, integrity, or public reputation of judicial proceedings’ would be if respondents, despite the overwhelming and un-controverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.” Id. at 1783.

While federal cases regarding “plain error”, the federal counterpart to our palpable error, are not binding on us and this Court is free to make its own determinations regarding palpable error in Kentucky, the federal cases applying plain error analysis are worth consideration, particularly given that federal law is the origin of the “fairness, integrity or public reputation of judicial proceedings” language adopted by this Court in Martin. In federal cases, jury instructions that omit an element of the crime can constitute plain error. See., e.g., United States v. Rossomando, 144 F.3d 197 (2d Cir.1998) (plain error in mail fraud case where instruction omitted language and posed “genuine risk” that jury could find guilt even if it believed defendant did not contemplate or intend to harm the victim); United States v. Haywood, 363 F.3d 200 (3d Cir.2004) (failure to instruct jury that knowledge of obliterated serial number was element of crime of possession of firearm with obliterated serial number was plain error). But see United States v. Feliciano, 223 F.3d 102 (2d Cir.2000) (even if trial court committed plain error in failing to instruct jury on elements of narcotics conspiracy and even if that affected defendant’s substantial rights, no relief because of the abundant evidence in the record that defendants engaged in extensive drug trafficking; under these circumstances, omission, if any, could not seriously affect the fairness, integrity or public reputation of judicial proceedings). Similarly, plain error can occur when the jury is not instructed that it can only convict on one of two offenses. See, e.g., United States v. Brown, 996 F.2d 1049 (10th Cir.1993) (plain error where jury was not instructed that it could not convict defendant of both theft of goods in interstate commerce and possession of those same goods).

My research reveals only one case where jury instructions were deemed plain error because of the potential for a non-unanimous verdict but, significantly, the instructions were not overly broad; rather, they failed to contain the requisite detail under federal jury instruction standards. In United States v. Adkinson, 135 F.3d 1363 (11th Cir.1998), following a five-month bank fraud trial in which the court committed numerous reversible errors, the judge then submitted jury instructions which did not identify the particulars of the scheme to defraud on which the defendants were being prosecuted. Because the jury heard evidence of 227 different overt acts and it was impossible to know which of those acts the various jurors focused on in finding a scheme to defraud, the Eleventh Circuit Court of Appeals found that the defendants’ rights to a unanimous verdict were violated and that constituted plain error.

By contrast, several courts have concluded that overly broad jury instructions do not constitute plain error. See, e.g., United States v. Leahy, 445 F.3d 634, 655 (3d Cir.2006) (no plain error in giving “intangible property rights” jury instruction in bank fraud prosecution when the government did not present any evidence supporting such instruction or allege an “intangible rights” theory because error did not prejudice defendants or diminish their rights; single erroneous jury instruction, could not have been “possible basis for the jury’s verdict” where financial fraud was also instructed on and evidence supported that theory); United States v. Newsom, 452 F.3d 593 (6th Cir.2006) (no plain error in overbroad jury instruction regarding uses that could be made of FRE 404(b) evidence because one of the four means of using 404(b) (to prove intent) was supported by the evidence); United States v. Hall, 312 F.3d 1250 (11th Cir.2002) (in prosecution for distribution and receipt of child pornography by computer through interstate or foreign commerce, instruction requiring a visual depiction which is, “or appears to be,” of a minor engaging in sexually explicit conduct was plain error, but the error did not affect defendant’s substantial rights and affirming the conviction would not seriously affect the fairness, integrity or public reputation of judicial proceedings; the evidence established that the children depicted in the pictures admitted at trial were actual children and no one ever claimed, or even hinted, that the images were of virtual children).

In this case, the excess language in the jury instructions regarding ways in which one can attain persistent felony offender status was error but not palpable error for much the same reason there was no plain error in the above-cited federal cases: the jurors would have to conjure up evidence to arrive at a verdict based on the excess language. As the United States Court of Appeals for the Third Circuit noted in Leahy, supra, the excess language regarding a theory unsupported by the evidence could not have been “a possible basis for the jury’s verdict.” 445 F.3d at 665. This, of course, distinguishes this type of case from the Harp-type case where the failure to give incident-specific instructions creates significant confusion about the basis or bases for the jury’s verdicts.

Moreover, for those who believe that jurors might be sufficiently confused by overly broad instructions that the jury would somehow “rely” on evidence that does not exist, I would further suggest that the “fairness, integrity or public reputation of judicial proceedings” is not impugned by such overly broad instructions. Where there is sufficient proof for a theory or theories properly included in the instruction(s), the additional presence of a theory in the instructions unsupported by any evidence does not alter that first fact; in other words, there is still sufficient evidence of a criminal act and the fairness, integrity and public confidence in the proceeding is not undermined by excess language even if the jury could have, in some extraordinarily strained, highly unlikely way misused that language. On this score, I would echo Chief Justice Rehnquist’s words for a unanimous Supreme Court in Cotton quoted supra, albeit in a different context. The real threat to fairness, integrity and public opinion of these particular proceedings would come from overturning a verdict, where the instructions were sufficiently specific and the evidence was sufficient for conviction, based on a unanimous verdict theory that requires us to assume wholly implausible, if not completely irrational, behavior on the part of a juror or jurors.

      . Both Travis and Dawson were also charged with, but ultimately acquitted of, criminal trespass in the second-degree.

      . Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000).

      . Adkinson is obviously analogous to our decision in Harp, 266 S.W.3d at 813.