author: DONALD L. CORBIN, Justice.

text:
    2009 Ark. 110
    Doyle Dewayne FRYE, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-635.
    Supreme Court of Arkansas.
    March 5, 2009.

      Knutson Law Firm, by: Gregg A. Knut-son, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
   DONALD L. CORBIN, Justice.

| Appellant, Doyle Dewayne Frye, appeals the judgment of the Benton County Circuit Court convicting him of the rape of A.C., his then-nine-year-old niece, and sentencing him as a habitual offender to life imprisonment. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(a)(2). For reversal of the judgment, Appellant alleges the trial court erred in making three evi-dentiary rulings. We find no merit to the arguments and affirm the judgment of conviction, which was entered pursuant to a jury verdict.

Appellant does not challenge the sufficiency of the evidence; therefore, only a brief recitation of the facts and evidence is necessary. The State alleged that Appellant raped his niece by penetrating her vagina digitally and orally during the late night of August 1 or the early morning of August 2, 2006. A jury heard testimony from multiple witnesses including the victim, other family members, and law enforcement officials about the events and 12circumstances occurring before, during, and after the rape. We relate the evidence in detail only as required to understand Appellant’s three assignments of error.

As his first point for reversal, Appellant alleges the trial court erred in admitting the hearsay testimony of the child-victim’s mother, Bobbie Jean Murchison, concerning statements the child made to her about the rape. The trial court allowed the testimony as an excited utterance, over Appellant’s objection that the statement was made after a significant delay following the startling event and in the absence of testimony that the child was still under the effects of the event.

On appeal, Appellant points out that the testimony was about an event that occurred, by the mother’s own admission, prior to 2:00 a.m. that morning. Appellant thus emphasizes there was a significant break in time between the alleged event in the early morning and the evening when the family had moved into a new apartment. Appellant further emphasizes that the child’s statement was made in response to questioning from her mother, rather than a statement blurted out in response to the alleged stressful event. In sum, argues Appellant, the alleged incident and excitement had clearly ended that evening by the time the family had moved into their new apartment when the victim made the statement.

Appellee responds by pointing out that this court has followed the trend observed and discussed in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), of allowing an expansion of the time interval between the startling event and the statement when the | sdeclarant is a child. Citing Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), Appellee further responds that excited utterances may come as answers to questions, particularly from victimized children.

Arkansas Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances, regardless of the availability of the declarant. For the exception to apply, there must be an event which startles or excites the declar-ant. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In addition, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Id. The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Id. It is within the circuit court’s discretion to determine whether the statement was made under the stress of excitement. Id.

This court has recognized there are several factors to consider when determining if a statement falls under the excited utterance exception in Rule 803(2): the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Smith, 303 Ark. 524, 798 S.W.2d 94. When adopting these factors from the decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), this court observed that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive. Smith, 303 Ark. 524, 798 S.W.2d 94. This court observed further in Smith the fact that the declarant’s 14statement was made in response to an inquiry was likewise not controlling. Id.; see Jackson, 290 Ark. 375, 720 S.W.2d 282.

In this case, the evidence showed that the nine-year-old declarant was raped both digitally and orally by her uncle in the middle of the night, dismissed shortly thereafter by her sleeping mother when she was searching for another place to sleep, and then evicted along with her parents and siblings the following morning and forced to find a new place to live. It was while unpacking and settling in the new apartment that the child victim made the challenged statement about the abuse that occurred during the early morning hours. Her mother’s husband observed something wrong with the child and asked her mother to check on her. After doing as her husband suggested, the mother checked on her daughter and stated the child was crying, upset, and not her normal self when she made the challenged statement that she was glad that Appellant “didn’t come to live with us.... because he had been touching her and he licked her ... and she didn’t like the way that that felt. And he licked her all the way down and pulled her panties to the side.”

This court has observed that sexual abuse is á startling event within the meaning of Rule 803(2). Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Whether the statement was made under the stress of the excitement of the event rather than after intervening reflection and deliberation is a matter included within the trial court’s discretion to admit or exclude evidence, and we will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Rodriguez, 372 |5Ark. 335, 276 S.W.3d 208. The fact that the declarant in this case is a young child and a victim of rape are certainly appropriate factors for the trial court to consider. Also appropriate to consider is the fact that the declar-ant was undergoing the continued stress of her family’s eviction, finding a new place to live, and then moving. Under these circumstances, it is quite possible this was the child’s first real opportunity to report the startling event. See Smith, 303 Ark. 524, 798 S.W.2d 94 (citing Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988)). Although it is not known the exact number of hours that had elapsed, the statement was made less than twenty-four hours following the startling event and in response to her mother’s questions. As we stated in Smith, 303 Ark. 524, 798 S.W.2d 94, these factors are not controlling of the analysis, especially when considered in light of the other factors, such as the brutal criminal event, the young age of the victim, the upset demeanor of the victim, and the subject matter of the statement. For these reasons, we conclude Appellant’s argument is without merit and the trial court did not abuse its discretion in ruling the challenged testimony admissible under the excited-utterance exception to the hearsay rule.

As his second argument for reversal, Appellant contends the trial court erred in allowing Investigator Richard Feast to give his opinion as to the truthfulness of Appellant’s statements made during a custodial interview. Investigator Feast testified for the State about his arrest and subsequent interview of Appellant. On cross-examination, Investigator Feast stated that he informed Appellant of his Miranda rights, that Appellant was cooperative and Rstrongly maintained his innocence from the very beginning, but that his body language indicated he had something to hide. Defense counsel continued asking questions about Appellant’s demeanor during the interview, even going so far as to ask, “Are you an expert at body language?” Investigator Feast responded, “I’ve been to school on it, yes.” After further questions from defense counsel about his training, the investigator clarified that he was not holding himself out as an expert on body language. On redirect examination, the prosecution inquired further into Investigator Feast’s training in interview techniques. He explained that based on his training and on his experience of interviewing several hundred witnesses, he felt Appellant’s body language indicated he was being deceptive.

At this point, Appellant’s counsel objected as follows: “Judge, I believe at this point the State is trying to elicit testimony in the form of an expert opinion, and we feel that Investigator Feast had in no way been qualified as an expert.” After the State responded that the defense had opened the door, Appellant’s counsel stated, “Well, if he is going to testify as to a conclusion reached, we feel that that would be in the form of an expert opinion and that he would need to be specially qualified for that.”

The trial court allowed the testimony to continue “to a certain extent,” not as an expert but because the defense had initiated the line of questioning and therefore the State should be allowed to clarify as to why the investigator continued to ask repeated questions in the face of Appellant’s consistent denials that he touched the victim inappropriately. Investigator Feast then testified that he continued to ask Appellant questions despite shearing denials, because “over a period of time sometimes they do come out and tell the truth and that’s what I was searching for.” The State inquired whether the investigator felt like what Appellant was saying was the truth. Investigator Feast replied, “No.” The testimony then approached a new subject, without any further objection by Appellant.

On appeal, Appellant contends that Investigator Feast’s testimony was inadmissible as expert testimony under Ark. R. Evid. 702 because it would not aid the jury in understanding the evidence or in determining a fact in issue. Appellant contends the lay jurors were fully competent to determine whether Appellant was telling the truth. Therefore, citing Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006), he argues, the challenged testimony invaded the province of the jury as it was not the type of testimony that is beyond the ability of the jury to understand and draw its own conclusions. We are precluded from reaching the merits of this argument, however, because this point is not preserved for appellate review.

This court has repeatedly held that arguments not raised at trial will not be addressed for the first time on appeal. Buford, 368 Ark. 87, 243 S.W.3d 300. Moreover, parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id. At trial, Appellant objected on the grounds that the State was attempting to elicit expert-opinion testimony from Investigator Feast without first qualifying him as an expert. Appellant did not object below, as he now argues on appeal, to the investigator’s testimony as it related to Appellant’s truthfulness. The scope |sand nature of Appellant’s objection at trial went solely to the witness’s qualifications or lack thereof as an expert. Appellant cannot now argue for the first time on appeal that the investigator’s testimony went to the matter of Appellant’s truthfulness and invaded the province of the jury.

As his third and final assignment of error, Appellant points to the admission into evidence of his prior convictions in Florida for misdemeanor lewd battery with a child and felony driving under the influence with a suspended or revoked license. These convictions were admitted during the cross-examination of Appellant’s wife, Janice Frye. The trial court ruled they were admissible because Appellant had opened the door to character evidence on direct examination.

The State responds that this issue is not preserved for review; however, it is clear from the record that two side-bar discussions were held where the issue of opening the door to character evidence was discussed. At both side-bars, Appellant argued that he had not opened the door for character evidence because he had not asked Mrs. Frye to comment on Appellant’s good character; rather, he simply inquired about Appellant’s opportunity to commit the abuse in the very narrow context of her ability to observe the events going on in the living room from her vantage point in the bedroom. Given these two side-bar discussions, we conclude Appellant’s objections below were specific to preserve the issue of character evidence and prior convictions for our appellate review.

| (Alternatively, the State responds that the trial court was correct in ruling Appellant opened the door to character evidence. We agree that Appellant did indeed open the door for his prior convictions when his wife testified on direct that she had been married to Appellant for sixteen years, that over those sixteen years she had gotten to know Appellant very well, and that she did not believe that Appellant was guilty of these charges.

Under Ark. R. Evid. 404(a)(1), evidence of a person’s character or a trait of his character is not admissible for proving that he acted in conformity therewith on a particular occasion, except by the accused or by the prosecution to rebut the same. Thus, “[o]nce the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized.” Smith v. State, 316 Ark. 407, 411, 872 S.W.2d 848, 845 (1994). Rule 405(a) provides that once character evidence is admissible, one permissible method is reputation or opinion testimony, and further that “[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct.” Smith, 316 Ark. at 411, 872 S.W.2d at 845 (quoting Ark. R. Evid. 405(a)).

Mrs. Frye stated that during her sixteen-year marriage to Appellant she had gotten to know Appellant pretty well and that she did not think Appellant was guilty of the crime charged. This testimony came out during the first five questions asked on direct examination. Despite Appellant’s contention to the contrary, the only purpose these questions could have had at this point in Mrs. Frye’s testimony was to show that Appellant |inwas not a person who was disposed to commit the crime charged. Therefore, Mrs. Frye was a character witness according to Rule 404.

This court has recognized that when a defendant produces a character witness, the defendant opens the door to evidence that might otherwise be inadmissible. Smith, 316 Ark. 407, 872 S.W.2d 843. In Smith, this court stated:

Rule 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’ knowledge of specific instances of conduct. Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion. Further, Rule 405 places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross-examination may occur.

Id. at 411-12, 872 S.W.2d at 845 (citations omitted). Thus, in Smith, this court upheld the admission of prior convictions when offered to rebut the defendant’s opinion testimony. Accordingly, we conclude the circuit court did not err in ruling that Appellant had opened the door for the prior convictions through his wife’s opinion testimony.

Pursuant to Ark. Sup.Ct. R. 4r-3(h), the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Appellant, and no prejudicial error has been found.

The judgment of conviction is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Donald E. JAMES, Appellant, v. Thomas L. JAMES, Appellee.
    No. 2008-SC-000163-DG.
    Supreme Court of Kentucky.
    May 20, 2010.

      Charles Thomas Hectus, Hectus & Strause PLLC, Louisville, KY, Counsel for Appellant.
    Scott P. Zoppoth, Jennifer Lynn Hulse, The Zoppoth Law Firm, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

We granted discretionary review of an opinion and order of the Court of Appeals dismissing Appellant’s appeal as untimely to again address the means by which a party may properly implement his or her right to appeal due to “excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of time for taking an appeal.” CR 73.02(l)(d); CR 60.02. Having reviewed the matter, we agree with the opinion of the Court of Appeals in part, but also disagree in part and thus vacate the order dismissing the appeal and reinstate it for consideration of the appeal.

We do so because we disagree with the opinion of the Court of Appeals that the filing of the notice of appeal under CR 73.02, under these circumstances, divested the trial court of its right to extend the time for appeal (not exceeding ten days from the expiration of the original time) as the trial court’s right to do this is specifically recognized by CR 73.02(l)(d), not withstanding the premature filing of the notice of appeal. Once extended, the notice of appeal filed within the forty-day window recognized by CR 73.02(l)(d) was effective to acquire jurisdiction for the appeal.

We agree, however, with the opinion of the Court of Appeals that the CR 60.02 relief granted “in the alternative” would have been otherwise ineffective to establish jurisdiction in the Court of Appeals. No “notice of appeal” was properly filed thereafter, and the attempt by the trial court to establish such a filing by ordering the date of its filing changed to a date concurrent with the CR 60.02 order granting relief was invalid and, therefore, void. However, it was also invalid because the attempted CR 60.02 relief “in the alternative” was inconsistent with the original CR 73.02(l)(d) relief, as its effect would have been to invalidate it by changing the dates upon which the CR 73.02(l)(d) relief depended. Moreover, as such a “moving shell game” would unduly burden the appellate process, it constitutes an invalid usurpation of appellate powers.

I. Facts

Insofar as pertinent, Appellant, Donald E. James, the sole trust beneficiary, filed the underlying action against Appellee, Thomas L. James, as trustee, alleging a breach of fiduciary duty which resulted in a loss to the trust res, and, in the end, Appellant. Following trial, the jury returned a verdict in favor of Appellee and final judgment was entered thereon on April 24, 2007. Thereafter, Appellant filed a motion for a new trial, or in the alternative, for Judgment Notwithstanding the Verdict (JNOV).

Affidavits filed of record allege that subsequent to the submission of this motion, Appellant’s counsel directed his law clerk to check CourtNet to determine the status of the motion and he was thereafter advised that the case was not on CourtNet. Counsel then directed the law clerk to periodically check with the Circuit Court Clerk’s office to monitor the status of the motion and the eventual order. Subsequent to the filing, the law clerk advised Appellant’s counsel several times that she had contacted the Circuit Court Clerk’s office by phone and that the motion had yet to be ruled upon. Appellant’s counsel also made several calls to the clerk to determine the status. Ultimately, a Notice of Submission was filed with respect to the motion.

Affidavits also indicate that Appellant’s counsel called the Circuit Court Clerk’s office on September 6, 2007, and, for the first time, was advised that the court had signed the order denying the motion for a new trial and JNOV on July 31, 2007 and the order was entered of record on August 1, 2007. A copy of the order was immediately requested and received by counsel on Friday, September 7, 2007. Counsel for Appellant asserted, his belief is that, “for whatever reason, the service copy from the clerk was probably misdelivered, or lost in the United States mail, and through no fault of appellant in particular or his counsel, we did not receive notice of denial of the motion or notice of entry of the final order.” An affidavit filed by counsel’s office manager, responsible for the mail, also asserts that Appellant’s counsel’s office did not receive notice of, or a copy of, the order until September 7, 2007; nor were any billing records created prior to this time billing for “review of the order.”

Thereafter, on Monday, September 10, 2007, Appellant’s counsel filed a notice of appeal with the Taylor Circuit Court Clerk’s office and a motion requesting the court “to enter an Order pursuant to CR 73.02(l)(d) extending Plaintiffs time to appeal from the final Order entered herein on August 1, 2007.” The affidavits aforementioned were filed with the CR 73.02(l)(d) motion.

In the motion, counsel submitted that the “court should exercise its discretion, pursuant to CR 73.02(l)(d) ... to extend Plaintiffs time to appeal from the final order entered herein on August 1, 2007, so that Plaintiff can appeal from the final judgment,” having noted previously in the motion that: “the final order was entered on August 1, 2007. The original time to appeal would have run on August 31st. An extension of ten days will suffice to extend the appeal time.” The motion also noted:

10. The failure to receive notice can be deemed “excusable neglect.” CR. 60.02 states:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise, or excusable neglect ... The motion shall be made within a reasonable time ... not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.

(Emphasis in original).

Counsel also tendered a draft order with the motion as follows:

IT IS HEREBY ORDERED that Plaintiffs Motion to Extend the Time to Appeal from the Final Order previously entered herein on August 1, 2007, be, and it hereby is, GRANTED. The court specifically finds that Plaintiff has shown excusable neglect for failure to learn of the entry of judgment. The time to appeal is hereby extended, not exceeding ten (10) days from the date of the original time.

(Emphasis in original).

On October 22, 2007, the trial court granted the motion, but entered an order, as follows:

IT IS HEREBY ORDERED [ (emphasis in original) ] that Plaintiffs Motion to Extend the Time to Appeal from the Final Order previously entered herein on August 1, 2007, be, and it hereby is, GRANTED. The court specifically finds that Plaintiff has shown excusable neglect for failure to learn of the entry of judgment. The time to appeal is hereby extended, not exceeding ten (10) days from the date of the original time. In the alternative, [(emphasis added)] the Order entered on August 1, 2007, is vacated, and re-entered as of the date of this Order, and further, the Plaintiffs Notice of Appeal, previously tendered on September 10, 2007, is hereby ordered filed as of this date.

This order tracked the draft order tendered by Appellant except for the alternative relief portion. Appellant did not refile a new notice of appeal following entry of this order.

Thereafter, on appeal, the Court of Appeals, issued a “show cause order” directing Appellant to show cause “why the above-styled appeal should not be dismissed for failure to timely file a notice of appeal.” The appeal was thereafter dismissed by order of the Court of Appeals on February 4, 2008, concluding that:

On September 10, 2007, Appellant did not merely tender a notice of appeal with his motion to extend time. Rather, he filed the notice of appeal. At that point, the trial court became divested of the jurisdiction to rule on the motion. As stated in City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990), ‘[a] notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court.’ Therefore, we have determined that the notice of appeal was filed in an untimely manner without any leave to do so.

In addition, while the trial court had the jurisdiction to dispose of the motion pursuant to CR 60.02, and while it had the authority, pursuant to Kurtsinger [v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.Bd 454 (Ky. 2002) ], to vacate the order of August 1, 2007, and to re-issue a new order based upon a finding of mistake or excusable neglect, we do not believe that the court also had the authority to modify the circuit clerk’s record as it did by altering the previously recorded date of filing of the notice of appeal. Rather, we are of the opinion that Appellant was required to file a new notice of appeal within thirty days following entry of the order of October 22, 2007.

(Footnote omitted).

Appellant now contends that his appeal was proper under either the relief granted by the trial court pursuant to CR 7S.02(l)(d) or CR 60.02, as his premature notice of appeal properly related forward under either rule. He also argues substantial compliance and that the order of the Court of Appeals violates his guarantee of one appeal as a matter of right pursuant to Section 115 of the Kentucky Constitution. Appellee, on the other hand, argues the premature filing of the notice of appeal vested jurisdiction in the Court of Appeals and therefore deprived the trial court of its jurisdiction to order the extension of time under CR 7S.02(l)(d), that the “relation forward” doctrine does not apply to save a prematurely filed notice of appeal, and that a trial court has no authority to modify a circuit court clerk’s docket entries.

II. Analysis

A. Extending the Time for Appeal Under CR 73.02(l)(d)

Appellee asserts that the trial court did not have jurisdiction to grant Appellant’s ten-day extension of time after the filing of his notice of appeal. We disagree.

CR 73.02(l)(d) authorizes the trial court; under the stated circumstances, to relieve a party from his or her failure to appeal within the time allowed, providing: “[u]pon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time.”

The jurisdiction of a trial court to control its judgment is a different matter. Notably, a court only “has control over its judgment with a right to order a new trial, or alter, amend or vacate the judgment, either on motion or sua sponte, for ten days after entry of judgment....” Johnson v. Smith, 885 S.W.2d 944, 947 (Ky.1994).

Other rules of procedure, however, can operate to re-invest a trial court with control over its judgment subject to the contingencies and time periods specified therein, i.e., CR 60.01, CR 60.02, and CR 60.03. This may be so even though an appeal is pending, in which case “the party commencing such proceeding shall promptly move the appellate court to abate the appeal until a final order is entered therein.” CR 60.04; see Wilson v. Commonwealth, 761 S.W.2d 182, 184 (Ky.App.1988) (“The trial court and the Commonwealth appear to mistakenly believe that it would be improper to consider a motion to vacate a judgment made pursuant to RCr 10.02 or 11.42 while a direct appeal from the same judgment is pending.”).

These separate rules work together at different levels because the judicial system is one system designed to operate efficiently in the attainment of fairness and justice. Ky. Const. § 109 (“The court shall constitute a unified judicial system for operation and administration”)- As such, our rules of procedure should not be interpreted in such a manner as to render them inconsistent with one another. See Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky.2002) (“We should not apply one rule in a manner that destroys another and eliminates its essential purpose.”); see also Fluor Construction International, Inc. v. Kirtley, 103 S.W.3d 88, 90 (Ky.2003) (“[I]f the latter rule is applied literally, where appellate rights are implicated, the former rule is unavailable.”).

Neither the ten-day limit for a trial court’s control of its judgment, nor the acquisition of jurisdiction over the appeal by an appellate court, diminishes a trial court’s right to extend the time for appeal under CR 73.02(l)(d), as each has its own purpose, separate and apart from the other.

Nor do Monsour v. Humphrey, 324 S.W.2d 813 (Ky.1959), City of Devondale v. Stallings, 795 S.W.2d 954 (Ky.1990), and Johnson, direct a different conclusion. As aforementioned, Johnson upheld the effectiveness of a prematurely filed notice of appeal. 885 S.W.2d at 950 (“The notices of appeal filed forthwith relate forward to the time when final judgment was entered disposing of post-judgment motions made by others.”). Stallings dealt only with the question of “substantial compliance,” where the notice of appeal omitted two indispensable parties. 795 S.W.2d at 955. It did note that “[a] notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court.” Id. at 957. That is true, of course, but otherwise, how could an appellate court act if it did not have jurisdiction? CR 73.02(l)(d) validates that jurisdiction. Quite clearly, the aforementioned comment in Stallings was not intended to deprive the rules discussed above of their purpose.

Humphrey, too, is inapposite. In Humphrey, the court had dismissed the appeal as the notice “did not show an amount in controversy sufficient to confer jurisdiction on [the] Court,” as then required by KRS 21.070 (1959). 324 S.W.2d at 814. The appellant had filed the first notice of appeal six days after entry of the judgment without disclosing the jurisdictional amounts. Id. Ten days after that, she filed a motion with the circuit court asking that the court fix the amount in controversy, to which the circuit court refused, noting it was “too late to amend [the] judgment.” Id. Nine days later, but still within the original thirty-day period allowed by CR 73.02 for filing the notice of appeal, she filed a second notice of appeal, arguing that, as the first notice of appeal was a “nullity,” there was no appellate jurisdiction, and therefore, the trial court did have the authority to amend the judgment to reflect the amount in controversy. The court properly responded, however, that:

Necessarily, when a notice of appeal has been filed, the Court of Appeals has jurisdiction to determine the fact of whether there is a proper showing of a jurisdictional amount in controversy [under KRS 21.070 (1959)]. In other words, the Court has jurisdiction to determine the facts upon which its jurisdiction of an appeal depends. Since the Court of Appeals alone can determine whether an attempted appeal is effee-tive, it is our opinion that when a notice of appeal has been filed, and until the Court of Appeals has dismissed the appeal for lack of jurisdiction, the circuit court is deprived of jurisdiction of the case to the same extent as when a valid appeal is pending.

Humphrey, 824 S.W.2d at 814-15. The court held that “the notice of appeal filed [earlier] was not a nullity, and the circuit court had no jurisdiction [later] to amend the judgment under KRS 21.070.” Id. at 815. Again, however, Humphrey addressed the circuit court’s powers of control (to amend) its judgment under KRS 21.070 (1959), it was not a comment on the relationship between a trial court and the appellate courts under other rules of procedure, such as CR 73.02(l)(d), 60.02, or 60.08. See Kurtsinger, 90 S.W.3d at 456; Fluor Const, 103 S.W.3d at 90; Wilson, 761 S.W.2d at 184.

Here, Appellant filed his notice of appeal within the forty-day period allowed and at the same time as his motion requesting the trial court grant a ten-day extension of the time in which to appeal. Pursuant to CR 73.02(l)(d), the trial court had jurisdiction to consider the request to extend, notwithstanding that the notice of appeal was filed prior to the trial court’s consideration of the extension. CR 73.02(l)(d).

It is clear that “an extension of time must be sought within 40 days from the date upon which the time for the taking of the appeal began to run,” under CR 73.02(l)(d). Rodgers v. Henderson, 612 S.W.2d 743, 744 (Ky.App.1980). In the interest of allowing the opposing party a chance to respond, the trial court, however, may not rule on the motion until after the expiration of the forty day period. Id. at 744-45. Rodgers cautioned, however, that the order should then be issued nunc ;pro tunc. Id. at 745.

Appellee asserts that to preserve one’s rights to petition a trial court for an extension of time for the appeal under CR 73.02(l)(d), the appeal may not be filed, only “tendered for filing”; otherwise, jurisdiction vests in the appellate court and the trial court is divested of the right to order the extension. We again disagree.

On this point, Rodgers notes only that “[a]s long as the appellant moves to file the notice of appeal within 10 days from the date that it was originally due pursuant to CR 73.02(l)(a), and tenders a copy of that notice, the circuit court may grant such an extension upon a proper showing of excusable neglect.” 612 S.W.2d at 745. Rodgers thus merely reflects that the tendering of the notice of appeal is as good as the actual filing. Otherwise, a notice of appeal filed after the expiration of the forty days, and after the order, would still be untimely. “There is no rule, and no sound judicial policy, forbidding such construction.” Johnson, 885 S.W.2d at 950.

B. Prematurely Filed Appeals

As a part of his argument, Appellee also asserts that an appeal filed prematurely to an order allowing it cannot be effective as an appeal or “relate forward” to the later order. It is correct that “[a] rule requiring automatic dismissal for a tardy appeal in civil cases is necessary to provide finality to the trial court’s judgment so that the litigant prevailing at the trial level can then execute on the judgment or otherwise enforce the terms of a final order.” Johnson, 885 S.W.2d at 950. “But the reasons for finality that provide the underpinning for mandating automatic dismissal of a tardy notice of appeal do not adhere to a premature notice of appeal .... ” Id. Certainly, “[t]he federal courts have long construed a notice of appeal filed prematurely as relating forward and filed after entry of judgment.”

Id. at 949; see also FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 273, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) (“The Rule[, FRCP 4(a)(2),] recognizes that, unlike a tardy notice of appeal, certain premature notices do not prejudice the appellee and that the technical defect of prematurity therefore should not be allowed to extinguish an otherwise proper appeal.”)

Moreover, in Board of Regents of Western Kentucky University v. Clark, 276 S.W.3d 819 (Ky.2009), we upheld the validity of a prematurely filed appeal. Relying upon the reasoning in FirsTier Mortgage Co., and Johnson, we pointed out:

[Djespite the premature nature of these notices, they nonetheless “put appellees on notice of the intent to appeal before expiration of the thirty day time limit in CR 73.02(l)(a), and thus served the essential purpose of the rule.” Furthermore, this Court noted that the particular circumstances of the Johnson case— where a litigant could have mistakenly believed that a final judgment had been entered and where the trial court’s non-final order would be appealable if followed by the formal entry of judgment — suggested that it would not be unreasonable to file a notice of appeal prematurely.

Id. at 821 (internal citations omitted) (“Therefore, we hold that as in Johnson, supra, Clark’s notice of appeal can relate forward to the time when the trial court’s interlocutory judgment became final and can be properly heard and decided by the Court of Appeals.”) Like Johnson, CR 73.02(l)(e)(i) (effective in 2009) now recognizes the validity of prematurely filed notices of appeal and their effectiveness “when an order disposing of the last such remaining motion is entered.” Under CR 73.02(l)(e)(i), if the judgment is thereafter altered or amended, or a party intends to challenge a post-judgment order on such motions, he may then file a “notice of appeal, or an amended notice of appeal, within the time prescribed” from the entry date of “the last such remaining motion.” CR 73.02(l)(e)(ii). However, if there is no change post-judgment, he does not.

Here, Appellant filed his notice of appeal on September 10, 2007 (within the forty-day time period allowed by CR 73.02(l)(d)) along with his motion requesting the ten-day extension and citing his grounds for “excusable neglect.” On October 22, 2007, the trial court entered the order extending the time for appeal by ten days, finding that Appellant had shown “excusable neglect for [the] failure to learn of the entry of [the] judgment.” This was sufficient.

However, the trial court also added relief in the alternative, vacating the August 1, 2007 order denying the motion for new trial and JNOV, ordering it “re-entered” as of October 22, 2007. In addition, it ordered that Appellant’s “notice of appeal, previously tendered on September 10, 2007, is hereby ordered filed as of this date.” (Emphasis added). This alternative theory of relief varied from the relief suggested by Appellant’s order tendered with the motion, which proposed only the ten-day extension of time.

Aside from the issue created by the trial court’s alternative relief, Appellant’s notice of appeal appeals from the correct judgment and order overruling Appellant’s motion for new trial and JNOV, although one may consider the date of the order overruling may have changed under the alternative relief. That being said, there is simply nothing that needs to be amended in the notice of appeal to disclose the order or judgment appealed from. Thus, Appel-lee was put on notice of the appeal and the matters appealed from within the appropriate time allowed under CR 73.02(l)(d).

Appellee also asserts, and the Court of Appeals agreed, that Appellant had to file a new notice of appeal within ten days of the October 22, 2007 order, even though such a filing would be outside the window of forty days allowed under CR 73.02(l)(d). The question then becomes, why and what for?

Such a premise does not appear from the language of 73.02(l)(d) and runs contrary to the logic of Johnson, Board of Regents of Western Kentucky, and FirsTier Mortgage Co., all of which are based upon a common-sense rule: that if an otherwise appropriate notice of appeal is filed as to an order or judgment of a trial court and it appears otherwise reasonable under the circumstances, precedents, and the rules of procedure applicable to have done so, the notice of appeal may operate prospectively. Thus, in this instance, we disagree with the opinion of the Court of Appeals.

Here, the filing of the notice of appeal within the context of CR 73.02(l)(a), along with a reading of CR 73.02(l)(d), indicates a cautious and reasonable approach to the dilemma with the view that the trial court, by giving Appellee a chance to respond, would not, in most instances, be able to rule on the motion prior to the running of the forty-day time period. Appellee’s construction of Rodgers notwithstanding, a plain reading of CR 73.02(l)(a) and (d) would counsel against waiting to file the notice of appeal past the forty-day period provided in the statute.

Although, we have already noted that Rodgers merely approved the tendering of the notice of appeal within the forty-day time period, and did not purport to prohibit its filing as we now clarify, we also note that Rodgers was premised upon the later issuance of a nunc pro tunc order, which is not the case herein, as the order extending the time period was effective only as of the date of its entry, October 22, 2007, which we find is appropriate and reasonable under the power granted the circuit court to extend the time for filing as envisioned by CR 73.02(l)(d). It is more appropriate to resolve procedural issues by a plain reading of the rule rather than the employment of tricks of time.

Thus, to the extent that Rodgers holds that the trial court must enter a nunc pro tunc order to extend the time to appeal for ten days under CR 73.02(l)(d) — in the event the trial court cannot, for reasons of fairness, enter the order within the forty-day window — Rodgers is overruled.

We hold, therefore, that upon the entry of the trial court’s order on October 22, 2007 granting Appellant the ten-day extension as requested under CR 73.02(l)(d), said order was effective to grant the extension of time and the notice of appeal, although filed prematurely, was effective as of the date filed, given the order of extension.

C. The Alternative Relief

1. Ordering the Filing Date Changed on the Notice of Appeal

In its order of October 22, 2007, the trial court also attempted to grant relief “in the alternative” by vacating the August 1, 2007 order overruling Appellant’s motion for new trial and/or JNOV and ordering it re-entered as of October 22, 2007. In addition, it directed that “the Plaintiffs Notice of Appeal, previously tendered on September 10, 2007, is hereby ordered filed as of this date.”

However, as we noted in Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713 (Ky.2000), “tendered” and “filed” have different meanings, to wit:

Excel did not file the notice of appeal when it time stamped the notice and left it in the Clerk’s office for processing. At most, it merely tendered the notice to the Clerk to be filed on the same date that was time stamped on the notice. In so doing, Excel assumed the risk that the Clerk would not be able to file the notice as tendered because the filing fee had not been paid.

Id. at 716. In this instance, the notice of appeal had not only been tendered, but filed. Thus, under CR 73.03(2), the circuit clerk had the responsibility to “serve notice of its filing by mailing a copy showing the date filed and a copy of the official docket sheet to the clerk of the appellate court and to the attorney[s] of record.” See also CR 5.05(3) (“The clerk shall endorse upon every pleading and other papers filed with him in an action the date of its filing.”).

However, there is no authority or rule, applicable in this instance, granting to the circuit courts the authority to change the responsibilities or records of the circuit or appellate court clerks. See CR 73.03(2); see also Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 921 (Ky.App.1999) (“[T]he circuit court did not err by denying appellant’s CR 60.01 and CR 60.02 motion seeking to correct the record by changing the controlling dates noted in the clerk’s docket.”).

If trial courts were granted the general authority to alter a circuit clerk’s records to adjust the filing dates, it would wreak havoc on the rules set forth by which appellate procedures are governed in this Commonwealth. The date a pleading or other document has been filed with the clerk should not be altered at the will of a trial court, and thus the trial court’s order attempting to change the noted date upon which Appellant’s notice of appeal was filed was invalid and void.

2. The Alternative Relief was Inconsistent

The question still remains, however, as to the effect of the trial court’s attempt of granting alternative relief, i.e. the vacation and re-entry of the order overruling Appellant’s motion for a new trial and/or JNOV. We noted, in Kurtsinger, 90 S.W.3d at 455, that, upon a finding of excusable neglect, “a trial court may vacate a CR 59.05 order under CR 60.02 upon a finding that a party did not receive notice of entry of the order.” The finding of “excusable neglect” in Kurtsinger was based upon the trial court’s own acknowledged mistake of failing to mail the notice to the affected party, rather than an argument as to whether or not it had been received after proper mailing. Id. We also noted that the appellate rules, particularly CR 77.04, do not override the “mistake correcting rule” of CR 60.02. Id. at 456; see also Fluor Const, 103 S.W.3d at 90 (“[Pursuant to CR 60.02 the trial judge acted within his broad discretion in vacating his original order and entering a new one.”).

The question left unargued by the parties then is: what is the effect of the court’s “alternative” relief? Having already addressed the extension of time issue, it is clear that the notice of appeal filed on September 10, 2007, was effective since it was filed within the forty-day window encompassed by the trial court’s extension of the time to appeal under CR 73.02(l)(d). Does the trial court’s relief “in the alternative” then vacate the date of August 1, 2007, as the beginning date for calculating the time of appeal under CR 77.04(2), undercutting the previous calculation of forty days under CR 73.02(l)(d)?

Under Fluor Const, and Kurtsinger, we clearly held that it does under appropriate circumstances when based upon a finding of “excusable neglect.” Fluor Const., 103 S.W.3d at 90; Kurtsinger, 90 S.W.3d at 458. Yet, by contrast, we also noted in Kurtsinger that “[w]e should not apply one rule in a manner that destroys another and eliminates its essential purpose,” and unless “harmony is possible ... such would be the result.” 90 S.W.3d at 456.

While Johnson, deals primarily with the rule of “relation forward” as applied to premature notices of appeal, we quoted approvingly therein from Ready v. Jamison, 705 S.W.2d 479, 482 (Ky.1986) concerning our policy on our rules of procedure, to wit: “we seek to recognize, to reconcile and to further three significant objectives of appellate practice: achieving an orderly appellate process, deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.” Thus, we should not read one rule to needlessly deprive another of its intended purpose. “One procedural rule or statute does not supersede another merely by providing an alternative means for obtaining the same type of [relief].” Perry v. Commonwealth, ex rel Kessinger, 652 S.W.2d 655, 659 (Ky.1983). Moreover, it is mandated that our “rules shall provide for expeditious and inexpensive appeals.” Ky. Const. § 115. And we should always remain cognizant that what we do could “turn a system that was designed to promote efficiency into a trap for the unwary.” Manly v. Manly, 669 S.W.2d 537, 540 (Ky.1984) (Leibson, J., dissenting).

Here, the circuit court attempted, first by CR 73.02(l)(d), to extend the time within which an appeal could be taken based upon its finding of “excusable neglect.” As we have indicated, this was accomplished. Were this not so, as it obviously feared (since its order was not entered until October 22, 2007), it intended “in the alternative” to extend the time for appeal — based upon the same factual finding — by vacating and reentering the August 1, 2007 order overruling Appellant’s motion for new trial and/or JNOV under CR 60.02. Notably, Appellant’s draft order for the relief requested did not provide for this alternative relief, so we can only surmise as to why it was added.

The point is, however, the trial court believed for the alternative relief to be effective, a new notice of appeal would need to be filed after the re-entry of the order overruling Appellant’s motion for new trial and/or JNOV. We may only assume that it believed that the notice of appeal filed on September 10, 2007 under the motion requesting an extension of time under CR 73.01 (l)(d) would not be effective as a notice of appeal for relief granted under CR 60.02 on October 22, 2007. To this proposition we would agree, as we are not inclined, under the authority cited above, to recognize the effectiveness of a notice of appeal filed under one motion as effective “looking forward” to relief granted under another. Thus, “in the alternative,” the trial court attempted to accomplish a re-filing of Appellant’s notice of appeal by directing a change in the clerk’s records as to the date of its filing.

However, for reasons that the trial court’s relief in this instance was structured “in the alternative,” and the further fact that such alternative relief was inconsistent with the primary relief granted under CR 73.02(l)(d) — it invalidated it by changing the date from which the appeal time would then be calculated — the only relief actually granted by the trial court in its order of October 22, 2007 was the ten-day extension of the time to appeal pursuant to CR 73.02(l)(d).

Where it is apparent that alternative relief granted by a trial court is inconsistent with the primary relief intended, in that the effect of the alternative relief would destroy the primary relief intended to have been granted, the alternative relief will be held to be invalid. Whether we do this on the patent inconsistency of the alternative relief, or on the basis that it usurps our appellate powers, makes little difference. See Keck v. Hafley, 237 S.W.2d 527, 530 (Ky.1951) (One “is not entitled to both remedies because a judgment granting such double relief would be inconsistent.”); Walker Mfg., Inc. v. Hoffmann, Inc., 261 F.Supp.2d 1054, 1087 (N.D.Iowa 2003) (“To enjoin future sales and at the same time make an award based on future profits from the prohibited sales would result in duplicating and inconsistent relief....”); Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300, 300 (Tex.App.1995) (“The parties request that we dismiss the appeal and affirm the judgment of the court below. We cannot do both.”); Ferguson v. DRG/Colony North, Ltd., 764 S.W.2d 874, 880 (Tex.App.1989) (“In granting appellee a specific award of damages ‘in the event an appellate court of final review reverses the judgment of rescission,’ the trial court sought to exercise the duty and authority expressly granted to [appellate] courts of appeals as part of their appellate jurisdiction. The court below was without authority to do so, and that portion of its judgment is erroneous.”); Heezen v. Aurora County, 83 S.D. 198, 157 N.W.2d 26, 32 (1968) (award of permanent damages for taking and injunctive relief against future taking are inconsistent).

The alternative relief being invalid, there was no valid vacation or reentry of the August 1, 2007 order and thus, the notice of appeal, as filed on September 10, 2007 was effective pursuant to CR 73.02(l)(d), not CR 60.02.

For the foregoing reasons, we affirm the opinion of the Court of Appeals in part and reverse in part, but vacate the order dismissing the appeal, and remand this matter to the Court of Appeals for consideration of the appeal.

All sitting. ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., concur.

MINTON, C. J., dissents by separate opinion.

MINTON, C.J.,

dissenting:

Because I believe the trial court lost jurisdiction over this case once Appellant filed his notice of appeal, I respectfully dissent. To rescue the Appellant from himself, the majority opinion errs by sacrificing longstanding precedent that was clear and easily applied. I fear that the result we reach today will muddy the waters for courts and practitioners going forward.

Over fifty years ago, our predecessor Court held that a trial court loses jurisdiction over a case when a notice of appeal has been filed: “Since the Court of Appeals alone can determine whether an attempted appeal is effective ... when a notice of appeal has been filed ... the circuit court is deprived of jurisdiction of the case to the same extent as when a valid appeal is pending.” Monsour v. Humphrey, 324 S.W.2d 813, 814-15 (Ky.1959). More recently, we have held that “[a] notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court. It places the named parties in the jurisdiction of the appellate court.” City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990). Accord Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky.2000) (“As a general rule, except with respect to issues of custody and child support in a domestic relations case, the filing of a notice of appeal divests the trial court of jurisdiction to rule on any issues while the appeal is pending.”); Young v. Richardson, 267 S.W.3d 690, 695 (Ky.App.2008) (“it is the law in Kentucky that, with certain narrowly circumscribed exceptions, the circuit court is divested of jurisdiction over a case when a notice of appeal is filed_”).

The majority cites some of this precedent, but then somehow engages in a reverse-plain meaning analysis to conclude that those opinions were “not intended to deprive” a trial court of jurisdiction over a case onee a notice of appeal is filed, ostensibly because of other civil rules.

I readily agree with the majority that our civil rules are meant to function in harmony with each other and that some rules may permit a trial court sometimes to reacquire jurisdiction over a case that is on appeal. For example, CR 60.04 permits a party to move an appellate court to abate an appeal when a motion for relief is filed under CR 60.02 or 60.03. But the majority does not suggest that Appellant filed a motion to abate his appeal under CR 60.04.

In the absence of a timely CR 60.04 motion, the Court of Appeals acted properly in this case by relying upon a half-century of precedent that unmistakably holds that filing a notice of appeal transferred jurisdiction of the case to the appellate court, which, in turn, meant that the trial court lacked jurisdiction to enlarge the time within which to file an appeal. City of Devondale, 795 S.W.2d at 957. Such a conclusion is completely logical and broadly useful. After all, why would a party need an extension of time to file a document that has already been filed? Unlike the majority, I am unwilling to bend — if not break — our Rules of Civil Procedure and precedent to rectify a clear procedural error made by Appellant’s counsel.

Frankly, the proper course of action for someone in Appellant’s unfortunate position, who has failed to receive timely the trial court’s order denying a motion for a new trial, should not have been baffling. The proper steps to take in those situations are laid out concisely and clearly in Rodgers v. Henderson, 612 S.W.2d 743 (Ky.App.1980). As the Court of Appeals held in Rodgers:

The workload of the circuit courts and practical considerations dictate that the [motion for an extension of time under CR 73.02(l)(d) ] cannot always be heard within the 10-day period of time. As long as the appellant moves to file the notice of appeal within 10 days from the date that it was originally due pursuant to CR 73.02(l)(a), and tenders a copy of that notice, the circuit court may grant such an extension upon a proper showing of excusable neglect. If the motion cannot be ruled upon until after the 10-day period has passed, a nunc pro tunc order should be issued.

Id. at 745 (emphasis added). So Appellant clearly could have extricated himself from his procedural predicament had he followed Rodgers and: (1) timely filed a motion for extension of time and (2) tendered — not filed — his notice of appeal.

I also do not believe CR 60.02 affords Appellant any relief. Although Appellant did apparently seek relief based upon CR 60.02, the mere filing of a CR 60.02 motion does not extend the thirty-day time in which a notice of appeal must be filed. See 7 the late Kurt A. Phillips, ⅞,, David V. Kramer & David W. Burleigh, Kentucky Practice Series Rules of Civil Procedure, Rule 73:02 (6th ed. 2007) (“A motion pursuant to CR 60.02 does not toll the 30-day time requirement for filing a notice of appeal. CR 73.02 does not specify 60.02; thus, a party should be cautious when filing a post-judgment motion to specify the Rule on which the motion is predicated to insure that the time for filing the notice of appeal is held in abeyance.”) (internal footnote omitted). In fact, the trial court’s order purporting to extend the time for Appellant to appeal is nonsensical on its face since Appellant had already filed a notice of appeal, and the order makes no mention of CR 60.02. And, even if it did, I agree with the majority that any attempted relief based upon CR 60.02 under these facts “would have been ... ineffective to establish jurisdiction in the Court of Appeals. No ‘notice of appeal’ was properly filed thereafter ... and the attempt by the trial court to establish such a finding ... was invalid ...” In other words, even if the trial court had somehow granted Appellant relief under CR 60.02, Appellant failed to take advantage of that relief when he inexplicably failed to file a new and timely notice of appeal.

I believe that once Appellant filed his notice of appeal — instead of merely tendering it along with his CR 73.02(l)(d) motion, as precedent required — the circuit court was divested of jurisdiction. Therefore, consistent with our clear precedent, I would affirm the decision of the Court of Appeals to dismiss Appellant’s appeal. Because the majority regrettably comes to a different conclusion, I respectfully dissent.

      . Included with the trial court's order was a distribution list certified by the Taylor Circuit Court Clerk indicating that both Appellant and Appellee were sent copies of the order. Counsel for Appellee acknowledged receipt of his copy on August 2, 2007.

      . The appeal was from both the final judgment and the order overruling the motion for new trial and/or JNOV.

      . KRS 21.070 (1959) stated:
      If a judgment does not, when construed in connection with the pleadings, certainly fix the value of the amount or thing in controversy, the court shall, upon the request of either party, state in the judgment that the actual value in controversy, and this valuation shall be conclusive of the amount in controversy for the purposes of appeal.


author: Justice CUNNINGHAM.

text:
    William R. STAR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000203-MR.
    Supreme Court of Kentucky.
    May 20, 2010.

      Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

Throughout most of his life, including around the time of the crimes in this case, Appellant, William R. Star, suffered from severe mental illness. He was admitted to a mental treatment facility from February 1997 to April 1999, where he was diagnosed with a paranoid delusional disorder. He checked himself into a mental hospital in July 2004, where he was diagnosed with paranoid schizophrenia. A doctor testified that, in February 2006, Appellant was “severely mentally ill,” a description that was documented in his hospital records.

As is common of paranoid schizophrenics, Appellant suffered from recurring delusions. He told people that he was God, or Jesus, or at least that he had their powers. He thought that his grandfather, uncle, and an elementary school teacher could predict the future, and he had auditory hallucinations of them relaying their predictions to him. In addition, Appellant had recurring delusions that he was being poisoned, or that people were otherwise trying to harm him. In early September 2006, Appellant became convinced that he had been poisoned because he had become sick for approximately two weeks. He thought that Jeff Mattox and Geraldine Litton had poisoned him.

On September 18, 2006, after drinking approximately twelve beers, Appellant took his pistol and went to find Mattox and Litton at their home. He shot Mattox in the chest, killing him. He then shot Litton, puncturing her lung. After shooting Litton, Appellant took her towards a house down the road. He was soon followed by the third victim, Billy Proctor, who had come to render aid to Litton. Appellant shot Proctor in the face, killing him. Appellant testified that he did so because he thought Proctor was evil and was going to harm Litton. Litton was later treated at a hospital and survived.

Appellant was found guilty but mentally ill of two murders, one kidnapping, and one assault. He was sentenced to imprisonment for a term of 30 years and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). On appeal, Appellant raises six issues: (1) whether the trial court erred in denying Appellant’s directed verdict on all counts because he was not criminally responsible; (2) whether the verdict of guilty but mentally ill should have been declared unconstitutional by the trial court; (3) whether the trial court erred in refusing to instruct the jury on Appellant’s burden of proof for his insanity defense; (4) whether the trial court erred in refusing to grant a mistrial after a detective suggested Appellant invoked his right to remain silent; (5) whether the trial court erred in refusing to allow Appellant to cross-examine a witness about her pending criminal cases; and (6) whether Appellant’s right to confront witnesses against him face-to-face was violated.

Directed verdict on all counts

Appellant first argues that he was entitled to a directed verdict on all counts because he was not criminally responsible for his actions. Thus, the issue we address is whether “[i]t would not be clearly unreasonable for a jury to find against the defendant on the issue of insanity!.]” Port v. Commonwealth, 906 S.W.2d 327, 330 (Ky.1995) (quoting Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984)). This, of course, is based on the evidence of record, inclusive or exclusive of expert testimony.

Where one chooses to rely upon insanity as a defense, the burden rests upon him to prove to the satisfaction of the jury that at the time the offense was committed, as a result of a mental disease or defect, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Edwards v. Commonwealth, 554 S.W.2d 380, 383 (Ky.1977) (citing KRS 504.020). After carefully reviewing the testimony presented herein, we do not believe that it was clearly unreasonable for the jury to find against Appellant on the issue of insanity.

Appellant admitted to shooting three people — killing two of them and seriously injuring the third — under the false impression that at least two of the victims had attempted to poison him. While there was expert testimony offered to show that Appellant could not appreciate the criminality of his conduct or conform his conduct to the requirements of the law, there was also ample testimony, some from Appellant himself, which indicated the opposite. Appellant testified that he walked away from the scene of the shooting because he was looking for an escape route. In addition, Appellant told onlookers at the scene to tell the police they could get him in the morning, because he wanted to get some rest before they arrived.

Geraldine Litton also testified that, although Appellant intended to shoot her a second time, she asked him not to do so and he complied with her request. A psychiatrist who interviewed Appellant a few days after the shootings stated that Appellant knew it was wrong and illegal to kill someone. The court-appointed psychiatrist testified that Appellant showed an ability to control his actions, because he did not attempt to murder other people whom he also believed were poisoning him.

We have little doubt concluding that Appellant suffers from a serious mental disease. However, “[a] mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance.” McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky.1986). The burden of proof as to the question of a defendant’s sanity at the time of a homicide never shifts from the defendant. Wainscott v. Commonwealth, 562 S.W.2d 628 (Ky.1978). See also Edwards, 554 S.W.2d at 383 (“[T]he introduction of proof of insanity by a defendant does not place a burden on the Commonwealth to prove him sane; rather, it entitles the defendant to an instruction to the jury that they may find him not guilty by reason of insanity, and thus properly makes the issue of insanity a matter for the jury’s determination.”).

This Court has long held that a motion for a directed verdict in a case involving an insanity defense would be defeated as long as there was “some evidence” indicating that the defendant was sane at the time of the commission of the crime; i.e., his mental problems did not preclude him from conforming his conduct to the requirements of law. Tunget v. Commonwealth, 303 Ky. 834, 198 S.W.2d 785 (1947). That threshold is certainly met in this case. Accordingly, we do not believe that it was clearly unreasonable for the jury to find against Appellant on the issue of insanity. As such, there was no error.

Constitutionality of guilty but mentally ill verdict

Appellant’s next allegation of error is based on the constitutionality of giving the jury an option to find a verdict of guilty but mentally hi. The crux of Appellant’s complaint is that this option confused the jury so that they did not return a not guilty by reason of insanity verdict. Appellant believes that the promise of treatment lured the jury into returning a guilty but mentally ill verdict rather than a not guilty by reason of insanity verdict, but contends that such a verdict does not necessarily guarantee that a defendant will receive treatment while in prison. In support of this argument, Appellant introduced the affidavit of Deputy Warden Paige McGuire, who oversees the Correctional Psychiatric Treatment Unit at the Kentucky State Reformatory. In her affidavit, the Deputy Warden stated that the guilty but mentally ill verdict has “no impact on the classification process nor the psychiatric treatment provided.” Further, she noted that the Department of Corrections conducts “its own independent evaluation and will provide appropriate psychiatric care.” This, Appellant maintains, shows that the guilty but mentally ill verdict is a “charade.” Appellant argues that such a verdict violates his due process rights, is unconstitutionally vague, and constitutes cruel and unusual punishment, as it may result in an insane person being found criminally responsible. In addition, Appellant argues that the jury instructions were inadequate. We disagree.

KRS 504.120(4) authorizes the verdict of guilty but mentally ill at the time of the offense. According to KRS 504.130(1), a defendant may be found guilty but mentally ill if “[t]he prosecution proves beyond a reasonable doubt that the defendant is guilty of an offense; and [t]he defendant proves by a preponderance of the evidence that he was mentally ill at the time of the offense.” Once a guilty but mentally ill verdict is reached, “treatment shall be provided the defendant until the treating professional determines that the treatment is no longer necessary or until expiration of his sentence, whichever occurs first.” KRS 504.150(1). Thus, the guilty but mentally ill verdict is intended to provide an “in-between” classification whereby a defendant bears the legal responsibility for criminal conduct, but is provided treatment while incarcerated for mental illness. People v. Jackson, 80 Mich.App. 244, 263 N.W.2d 44 (1977).

Appellant points to no evidence supporting the proposition that guilty but mentally ill verdicts increase the possibility of improper compromises by the trier of fact. Appellant has not cited, and we cannot find, any authority indicating that compromise by the trier of fact is inconsistent with due process. To the contrary, the great weight of authority states that such verdicts do not lead to improper compromise verdicts. See People v. Smith, 124 Ill.App.3d 805, 80 Ill.Dec. 310, 465 N.E.2d 101 (1984); People v. Ramsey, 422 Mich. 500, 375 N.W.2d 297 (1985); Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988); State v. Neely, 112 N.M. 702, 819 P.2d 249 (1991); State v. Baker, 440 N.W.2d 284 (S.D.1989). It seems Appellant is suggesting that, given the choice between verdicts of not guilty by reason of insanity and guilty but mentally ill, jurors in this case chose the latter because of the alleged similarity and confusion between the two verdicts. We believe this supposition is entirely too speculative and presupposes that jury compromise occurs in every ease where more than one verdict or charge is submitted to the jury. Put another way, there is no indication that “but for” the guilty but mentally ill instruction, the jury would have found Appellant not guilty by reason of insanity. If Appellant believed that the jury improperly arrived at a compromise verdict, he was free to poll the jurors.

Nor do we believe that the guilty but mentally ill verdict constitutes cruel and unusual punishment. Such a verdict merely allows for accommodation of the mental health needs of those defendants who are guilty, but have a mental disorder that falls short of insanity and delusional compulsion. Appellant’s argument misapprehends the nature of the guilty but mentally ill finding. A guilty but mentally ill offender is no less guilty than one who is guilty and not mentally ill. Unlike an insanity verdict, a guilty but mentally ill finding or plea does not relieve an offender of criminal responsibility for his conduct. Appellant’s situation must be distinguished from that of a person who has been found not guilty by reason of insanity. A person found not guilty by reason of insanity is one who “lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” KRS 504.020(1). A finding of insanity functions as a complete defense to conviction. See Vaughn v. Commonwealth, 204 Ky. 229, 263 S.W. 752 (1924). A defendant who is mentally ill, but not insane, cannot make a similar claim. By definition, the guilty but mentally ill offender is able to appreciate the wrongfulness of his behavior and is able to conform his conduct to the requirements of law. With respect to that offender, deterrence and retribution then remain valid considerations in his punishment. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).

In addition, we find no error in the jury instructions in this case. In Brown v. Commonwealth, 934 S.W.2d 242, 246 (Ky.1996), this Court stated that the “constitutionality of the guilty but mentally ill statute depends, at least in part, upon how the jury is instructed in the rendering of such a verdict.” In this case, the trial court used the following instruction, provided by defense counsel:

If you find William Star guilty of one or more of the offenses mentioned in these instructions, but further believe from the evidence that at the time he committed the offense or offenses he was suffering from a mental illness, as that term is defined in these Instructions (but was not insane), you shall state in your verdict that you find Mr. Star guilty of the offense, but mentally ill.
If you find William Star guilty but mentally ill, he will be sentenced in the same manner as a defendant found guilty but not mentally ill. Treatment may or may not be provided while Mr. Star is incarcerated depending on (1) whether or not the state makes funds available to the Department of Corrections to provide such treatment, and (2) whether or not the correctional mental health professionals believe treatment is necessary at the time he is evaluated at the prison.

These instructions fully comply with and alleviate any concerns expressed by this Court in Brown.

The constitutionality of guilty but mentally ill verdicts has been an issue courts across this country have faced. “To date no case has been found in which an appellate court has held a guilty but mentally ill statute to be unconstitutional.” Debra T. Landis, J.D., “Guilty But Mentally III” Statutes: Validity and Construction, 71 A.L.R.4th 702, 707 (1989). It has long been held that a statute enacted by the General Assembly carries a strong presumption of constitutionality. Martinez v. Commonwealth, 72 S.W.Bd 581, 584 (Ky.2002). A statute will not be invalidated as unconstitutional unless it clearly, unequivocally, and completely violates provisions of the Constitution. Cornelison v. Commonwealth, 52 S.W.3d 570, 572 (Ky.2001). Further, the party questioning the constitutionality of a statute bears the burden of proving its contention. Id. at 572-73. Appellant has simply not met that burden in this case. As such, we find no error.

Refusal to instruct on burden of proof for insanity defense

Appellant argues that the trial court’s refusal to instruct the jury that he was required to prove insanity by a preponderance of the evidence was error. We disagree. In Brown v. Commonwealth, 934 S.W.2d at 247, this Court reaffirmed our reluctance to use the word “preponderance” in jury instructions. As trial counsel was fully able to articulate this burden to the jury, we find no error.

Refusal to grant mistrial

Appellant next argues that the trial court erred in failing to grant a mistrial after Detective Goble told the jury that Appellant had invoked his right to counsel and his right to remain silent. See Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky.1993) (“It is clear that the prosecution is prohibited from using the defendant’s silence in its case-in-chief.”). However, upon review of the record in this case, no mention of Appellant’s invocation of these rights was made. The statement in question was the following: “I actually rehearsed his Miranda warnings to him, and that’s when he told me he wanted....” At this point, Detective Goble’s testimony was interrupted by defense counsel’s objection. Because Detective Goble never finished his statement, the trial court denied Appellant’s motion.

On review of the denial of a motion for a mistrial, the applicable standard is abuse of discretion. Martin v. Commonwealth, 170 S.W.3d 374, 381 (Ky.2005). We find that the trial court did not abuse its discretion here.

Refusal to allow cross-examination of witness about pending criminal cases

During cross-examination of Geraldine Litton, defense counsel attempted to show that she was currently facing several charges in Martin County. The trial court sustained the Commonwealth’s objection, and, as a result, Appellant maintains that he was unable to fully and effectively cross-examine Ms. Litton.

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673,106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). However, this right to confrontation is not limitless. “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 679, 106 S.Ct. 1431 (citations omitted) (emphasis in original). The U.S. Supreme Court has held that “trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about ... harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id.

This Court has long recognized the principle that a defendant has a right to expose the fact that a testifying witness who has criminal charges pending “thereby [may possess] a motive to lie in order to curry favorable treatment from the prosecution.” Williams v. Commonwealth, 569 S.W.2d 139, 145 (Ky.1978). Such a showing of bias can be important because, “unlike evidence of prior inconsistent statements — which might indicate that the witness is lying — evidence of bias suggests why the witness might be lying.” Stephens v. Hall, 294 F.3d 210, 224 (1st Cir.2002) (emphasis in original).

Accordingly, in the instant case, we believe it was error for the trial court to sustain the Commonwealth’s objection to the introduction of pending charges against Ms. Litton. Even so, however, the

[constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to ... harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431.

Given the testimony offered by Ms. Litton, we believe the exclusion of the criminal charges was harmless beyond a reasonable doubt. The seminal issue in this case was whether or not Appellant was criminally responsible for the crimes charged. Ms. Litton’s testimony, on the other hand, focused primarily on retelling the uncontroverted facts that occurred on September 18, 2006. This testimony was corroborated by virtually every witness the Commonwealth called, as well as Appellant’s own testimony. Because this testimony did not concern Appellant’s mental state at the time of the crime, we cannot see how the lack of evidence regarding the pending Martin County charges was prejudicial. Even assuming the “the damaging potential of the cross-examination were fully realized,” there was more than ample evidence, including Appellant’s own admissions, that he committed the crimes charged.

Therefore, we believe that the trial court’s denial of the introduction of evidence concerning pending charges against Ms. Litton was in error, but was harmless beyond a reasonable doubt.

Right to confront witnesses face-to-face

Lastly, Appellant complains that the physical layout of the courtroom precluded him from being able to confront the witnesses face-to-face. See Ky. Const. § 11 (“In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.”). See also Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (“We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact”). The courtroom was set up in such a way that made it difficult, if not impossible, for anyone seated in the witness stand to see Appellant, who was seated at the table with his defense counsel. This became apparent during the testimony of both Geraldine Litton and Willie Sparks, who had to physically leave the witness stand in order to identify Appellant for the record. At the same time, Appellant, when seated at defense table, was unable to view the testifying witness. Appellant’s trial counsel apparently declined an offer to move about the courtroom to alleviate this problem prior to trial. Eventually, defense counsel agreed to use a television monitor located at defense table, which allowed Appellant to view the witness. Though taking this accommodation, defense counsel repeated his objection, stating that he believed there was a confrontation issue due to Appellant being unable to physically face the witnesses.

Appellant points to the U.S. Supreme Court’s decision in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), which sets forth a test delineating those times when the right to face-to-face confrontation may be excused. Craig states that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. 3157. See also Coy v. Iowa, supra. We agree with Appellant that the physical layout of the courtroom produced a Confrontation Clause violation, and we must now determine whether the error was harmless beyond a reasonable doubt. See Sparkman v. Commonwealth, 250 S.W.3d 667 (Ky.2008).

The problem with Appellant’s reliance on Craig and Coy, however, is that those two cases involved fundamentally different scenarios than that which is present here. The basic facts of this case are not in dispute. The record is clear that Appellant admitted to shooting Jeff Mat-tox, Geraldine Litton, and Billy Proctor. While face-to-face confrontation is preferred, it is not the sine qua non of the confrontation right. Craig, 497 U.S. at 847, 110 S.Ct. 3157. “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845, 110 S.Ct. 3157. Indeed, “face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.” Id. at 846, 110 S.Ct. 3157.

In Sparkman, this Court was confronted with a similar issue. There, the prosecutor stood between the defendant and two testifying child witnesses during direct examination. Though finding a Confrontation Clause violation, this Court held that the error was harmless. Sparkman, 250 S.W.3d at 671. Much like in this case, the basic facts were uncontroverted, with “the only differences between the testimony of Appellant and the victim [being] the manner in which Appellant was alleged to have entered the victim’s house and the number of times he struck the victim.” Id. at 670. Arguably, the violation in that case was more severe than what we find here today, as there was some factual dispute.

Unlike Sparkman, the evidence in this case was not predicated upon a he-said, she-said description of the events occurring on September 18, 2006. To the contrary, the sole issue in contention in this case was whether Appellant was criminally responsible for his actions. “A determination of prejudicial error by this Court would require some showing that Appellant’s unobstructed observation would have affected the substance and credibility of the ... witnesses.” Id. at 671. In this case, Appellant has made no such showing. Accordingly, we believe that the error was harmless.

We note, however, that trial judges are courting with danger by tolerating any kind of courtroom arrangement which impedes eye-to-eye contact between the defendant and witnesses. In this case, as in Sparkman, it did not loom critical, but in the next case it might.

For the reasons stated herein, we hereby affirm the judgment of the Johnson Circuit Court.

All sitting. All concur.