author: Justice ABRAMSON. SCHRODER, J.,

text:
    Roy RANKIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000385-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2010.

      Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Roy Rankin appeals as a matter of right from a Judgment of the Fayette Circuit Court convicting him of first-degree criminal abuse, in violation of Kentucky Revised Statute (KRS) 508.100, and of wanton murder, in violation of KRS 507.020(l)(b). In accord with the jury’s recommendation, the Judgment orders Rankin to serve concurrent prison sentences of ten and twenty years, respectively. The Commonwealth alleged, and the jury found, that Rankin abused and wantonly caused the death of his girlfriend’s six-month-old daughter, C.A. Rankin maintains that his trial was rendered unfair by either of two trial court errors: first, the court’s refusal to strike for cause a potential juror who had been subjected to sexual abuse as a child, and second, the court’s admission into evidence of a social worker’s video-recorded experiment involving C.A.’s two-year-old brother, M.A. Rankin also maintains that because evidence of his mental retardation compels a finding that he was incapable of acting wantonly, the trial court should have sua sponte directed a verdict on the wanton murder charge. Finding no reversible error, we affirm.

RELEVANT FACTS

The evidence at trial showed that Rankin became acquainted with C.A.’s mother, Samantha Monahan, in April or May 2005. Rankin was living on Perry Street in Lexington with his twin brother in a home next door to his parents and two doors from his sister. When she met Rankin, Monahan and her two young children were living with her mother in Tennessee. Weekend visits led, in early July 2005, to Monahan’s moving in with Rankin and his family at Rankin’s home in Lexington. In mid-August, Monahan began working an evening shift at a convenience store, and on the evenings she worked, according to Rankin’s mother, Rankin would bring the children to his parents’ house and watch them there. He was watching them there on the evening of August 22, 2005, when, shortly before 7:00, he carried C.A. to the front porch, where his parents were sitting, and asked for help because C.A. was not breathing. The parents in turn summoned help from their daughter next door. The daughter called 911, and while the family waited for the ambulance, the operator told the daughter’s husband how to perform CPR. Emergency room personnel at the University of Kentucky Medical Center also attempted to resuscitate C.A., but all efforts to revive her failed, and C.A. was pronounced dead about forty minutes after her arrival at the hospital.

In the days immediately following C.A.’s death, police investigators interviewed Rankin a couple of times. He told them that Monahan’s shift at work usually began at 2:00 pm, but that car problems had delayed her that day. Nevertheless, by 3:00 Monahan had gone to work, and Rankin had situated the children in a back room at his parents’ house. There, he claimed, he watched the children steadily for several hours, but sometime after 6:00 he put the children down for a nap, leaving C.A. in her car seat on the floor. He left them unattended briefly while he helped move a television and ate dinner, and when he checked in on them before 7:00 he found the car seat tipped over and C.A. on the floor with M.A. kneeling on her neck. According to Rankin, C.A.’s body was limp when he picked her up, and that was when he sought help from his parents.

The investigators also interviewed Rankin’s father, who told them that Rankin had brought the children over to his, the elder Rankin’s, house around 1:00 pm and had watched them until dinner time. Rankin had eaten some food and had helped move a television, and it was shortly after the elder Rankin had finished eating and gone out to sit on the porch that his son had asked for help with C.A.

The autopsy and subsequent studies of C.A.’s head, torso, and extremities revealed numerous rib and appendicular fractures. Some of those injuries occurred near the time of death while others showed various stages of healing. The timing and sequence of the earlier injuries could not be precisely determined, but one expert estimated that they probably occurred between two to twelve weeks prior to C.A.’s death. The medical examiner testified that the immediate cause of C.A.’s death was a blunt force trauma to her head, an impact that fractured her skull and injured her brain. According to the medical examiner, the head injury would have been symptomatic immediately, causing unconsciousness, seizures, or respiratory arrest, and in her opinion death probably ensued in about thirty minutes, although C.A. could possibly have lived for as long as five hours.

The grand jury indicted both Rankin and Monahan for criminally abusing C.A. and Rankin for murdering her. The pair was jointly tried, and both were convicted. Rankin’s defense was that his low intelligence made him an unwitting witness of abuse perpetrated solely by Monahan. With respect, to C.A.’s death, Rankin argued that although C.A. had died on “his watch,” the injury had been inflicted earlier by someone else. In support of that claim, he noted the medical examiner’s testimony that C.A. could have survived the blow to her head for as long as five hours and presented other expert medical testimony to the effect that C.A. could have survived for as long as five days. He also presented testimony by family members to the effect that Monahan had been later going to work on the day of C.A.’s death— 3:30 or 4:00 — rather than the 1:00-3:00 range that Rankin and his father had initially told investigators.

As noted, the jury rejected Rankin’s defense, and now on appeal Rankin first contends that he was denied the full use of his peremptory strikes, and hence was denied a fair trial, when he was obliged to use a peremptory to remove a prospective juror who should have been removed for cause. We begin our analysis with this claim of error.

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion By Refusing To Strike Juror 462.

As Rankin correctly observes, under the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, a criminal defendant is entitled to an impartial jury. To help protect that right, RCr 9.36 mandates that “[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” In making this determination, the trial court is to consider the prospective juror’s voir dire responses as well as his or her demeanor during the course of voir dire, and is to keep in mind that generally it is the totality of those circumstances and not the response to any single question that reveals impartiality or the lack of it. Shane v. Commonwealth, 243 S.W.3d 336 (Ky.2007).

Reasonable grounds to excuse a prospective juror exist whenever the juror expresses or shows an inability or unwillingness to act with entire impartiality. In Shane, for example, we held that a prospective juror who worked as police officer and who stated during voir dire that he was absolutely pro-police and that he believed police officers were less likely to lie under oath than most other people because they took the oath more seriously should have been excused notwithstanding his assurances that he could serve impartially.

Reasonable grounds to excuse a prospective juror may also exist where the prospective juror’s relationship with some aspect of the litigation, “be it familial, financial or situational, with any of the parties, counsel, victims or witnesses,” is such that it is highly unlikely that the average person could remain impartial under the circumstances. Marsch v. Commonwealth, 743 S.W.2d 830, 833 (Ky.1988) (citation and internal quotation marks omitted). We have held, for example, that a prospective juror with an ongoing relationship with counsel should have been excused, as should a prospective juror whose brother was to be an important witness. Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky.2006) (collecting examples of implied bias). Although we review the trial court’s rulings on motions to strike for abuse of discretion,' Adkins, v. Commonwealth, 96 S.W.3d 779 (Ky.2003), substantial doubts about a prospective juror’s impartiality should be decided against the juror, and where such doubts are patent on the record we will not hesitate to find that discretion has been abused. Shane, supra.

Rankin contends that the trial court abused its discretion by refusing to strike Juror 462. During voir dire, the Commonwealth asked the members of the panel if they or a loved one had ever been abused by a parent or other care provider. When invited to the bench, Juror 462 stated that she was a victim of sexual abuse and rape during her childhood. The questioning proceeded as follows:

Juror: I don’t know what this case involves.
Commonwealth: The question was very broad like that. How old were you when this happened? [pause] Was it over a period of time?
Juror: Yes.
Commonwealth: Were you less than twelve?
Juror: Yes.
Commonwealth: O.K. There are no allegations of sexual abuse or rape in this case. This is a physical abuse case. However, our experiences affect the way that we approach these kinds of things. Do you think you could set aside what has happened to you and base a decision on the evidence in this case?
Juror: Yes.
Commonwealth: This case, much like what happened to you, is a very emotional, could be a very emotional thing. Do you feel like you’ll be able to set the emotion aside, and listen to the evidence and base your decision on evidence, not on emotion?
Juror: I think it would be hard, but I. think I can.

Rankin maintains that as a victim of abuse at the hands of a loved one, Juror 462 was likely to sympathize unduly with C.A. and for that reason to be biased in favor of the prosecution. However, “the mere fact that a prospective juror has been the victim of a crime similar to the crime being tried does not by itself imply a disqualifying bias. Additional evidence of bias is required.” Brown v. Commonwealth, 313 S.W.3d 577, 598 (Ky.2010). Rankin asserts that additional evidence here came from Juror 462’s emotional demeanor during her questioning and from her uncertain response — “I think I can.”— to the question about whether she could put that emotion aside. We agree with the Commonwealth, however, that the record does not bear out those characterizations. On review of the video recording, Juror 462’s demeanor was not unduly emotional, and her responses were positive rather than uncertain, emphasizing the “I can” rather than the “I think.” Nor were the circumstances such as to make it highly likely that an average person would be biased. Although Juror 462’s childhood experience was doubtlessly very traumatic, many years had passed since then, Juror 462 had apparently come to terms with the trauma, and she indicated an ability to consider Rankin’s case dispassionately. Moreover, as the trial court noted, this case involved physical abuse of a six-month old but no evidence of any form of sexual abuse. On the record before us, therefore, it cannot be said that the trial court abused its discretion by refusing to excuse Juror 462.

II. The Trial Court Did Not Abuse Its Discretion By Admitting Into Evidence The Video Recording Of An Out-Of-Court Experiment.

Rankin next contends that his trial was rendered unfair when the Commonwealth was permitted to play for the jury a social worker’s video recording of M.A., C.A.’s two-year-old brother, interacting with a sand-filled teddy bear weighted to approximate C.A.’s weight and placed in a car seat like C.A.’s on the floor of the social worker’s interview room. The recording was prepared in response to Rankin’s police statement, in which he claimed that he found C.A. spilled from her car seat with M.A. kneeling on her neck. Rankin asserts, and our review confirms, that the recording shows M.A. trying and failing to lift the weighted teddy bear from the seat. Rankin maintains that this exhibit was prejudicially misleading, because, although weighted to be like C.A., the teddy bear was different from the infant in other respects and thus did not provide a reliable comparison. We agree with the Commonwealth, however, that the limitations of this experiment went to its weight as evidence, not its admissibility.

As Professor Lawson notes, our rules of evidence do not address out-of-court experiments specifically, but leave the admissibility of such evidence to the general rules of relevance. Robert C. Lawson, The Kentucky Evidence Law Handbook, § 11.15(3) (4th ed.2003). Relevant evidence is generally admissible, of course, unless its probative value is substantially outweighed by its unduly prejudicial effect. Kentucky Rule of Evidence (KRE) 402; KRE 403. We have not had much occasion to apply those rules to experiments, see Meredith v. Commonwealth, 959 S.W.2d 87 (Ky.1997) (deeming an experiment irrelevant where no attempt was made to establish any similarity between the conditions of the experiment and the facts of the case being tried), but, as Professor Lawson also notes, the federal courts, applying rules much like ours, have held that experiment evidence is generally admissible if it bears upon a material issue and if the proponent establishes a sufficient similarity between the conditions of the experiment and those of the event in question. United States v. Williams, 461 F.3d 441 (4th Cir.2006); United States v. Baldwin, 418 F.3d 575 (6th Cir.2005); United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993); Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434 (10th Cir.1992).

What counts as “sufficient” similarity depends on the purpose for which the evidence is being offered. If the experiment is offered as a simulation of actual events, then there must be a substantial similarity between the experimental conditions and those which are the subject of the litigation. Id. If, on the other hand, the experiment is not meant to simulate what happened, but rather to demonstrate some general principle bearing on what could or what was likely to have happened, then the similarity between the experimental and the actual conditions need not be as strong. Turbomeca, supra; Gilbert v. Cosco Incorporated, 989 F.2d 899 (10th Cir.1993). In either case, however, the similarities must be such as to afford a fair comparison, and the court should be mindful of the significant risk of undue prejudice inherent in dramatic presentations offered to the jury as reenactments of the events being litigated. Gaskell, supra; Turbomeca, supra. If the experiment evidence is sufficiently similar to be probative and if its probative value is not outweighed by undue prejudice, then differences between the experiment and the event at issue go to the weight of the evidence, not its admissibility. Turbomeca, supra.

These federal cases offer sound guidance, we believe, for the application of our rules. As with other types of evidence, the admissibility of experiment evidence is discretionary; the trial court’s ruling will be disturbed on appeal only if that discretion is abused. Cecil v. Commonwealth, 297 S.W.3d 12, 20 (Ky.2009) (citing Commonwealth v. English, 998 S.W.2d 941, 945 (Ky.1999)).

Here, the Commonwealth did not offer the social worker’s video of M.A. as a simulation of what happened to C.A., but rather as proof tending to show that the two-year-old was not strong enough to lift his fourteen-pound sister out of her car seat, thus casting doubt on Rankin’s statement to police that he found the children on the floor with M.A. kneeling on C.A.’s neck. For this limited purpose, the weighted teddy bear was sufficiently like an infant to give the experiment some probative value, and since the experiment was not offered to the jury as an image of what happened, it posed little risk of undue prejudice. Although there are certainly differences between a sand-weighted teddy bear and an infant, those differences are not likely to make the infant easier to lift. Further, Rankin was free to argue, and did argue, that M.A. could have tried harder to lift C.A. than he did the teddy bear or that he need not have lifted C.A. at all, but could have overturned her car seat by climbing on it or tipping it over. In short, the experiment’s obvious limitations can reasonably be deemed to go to its weight as evidence, not to its admissibility. The trial court did not abuse its discretion, therefore, by admitting the social worker’s video recording.

III. There Was Sufficient Evidence That Rankin Acted Wantonly.

Finally, Rankin contends that he is entitled to relief from his conviction for wanton murder because the evidence failed to establish that he is capable of acting wantonly, ie., that he could perceive and disregard a certain risk, in this case a grave risk of death. He maintains that his mild mental retardation, which, according to expert testimony, limits his ability to reason and to appreciate the relationship between cause and effect, compels a finding that, whatever he may have done to C.A., he did not realize that it posed a risk of killing her. Rankin concedes that this issue was not preserved by timely motions for a directed verdict, but he asserts that insufficient evidence claims may be raised at any time. We need not address the preservation issue or the standard of review applicable to unpreserved directed verdict claims, because even under the Benham standard, the standard of review for preserved directed verdict claims, Rankin is not entitled to relief. But see Potts v. Commonwealth, 172 S.W.3d 345 (Ky.2005) (holding that unpreserved directed verdict claims are to be reviewed under the palpable error standard and that failures of proof do not necessarily meet that standard).

Under Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991), where a motion for directed verdict has been denied, the question on appeal is whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 816 S.W.2d at 187. As Rankin notes, to convict a defendant of wanton murder, the Commonwealth must prove, among other things, that the defendant engaged in conduct creating a grave risk of death and that he perceived that risk but disregarded it. KRS 507.020(l)(b); KRS 501.020(3). Rankin does not claim that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. KRS 504.020. The experts who examined him all agreed that he was competent in that sense. Rankin does not dispute, furthermore, that the evidence establishing his access to C.A. and the Commonwealth’s medical proof concerning how and when C.A. died permit an inference that Rankin subjected C.A.’s head to a blow forceful enough to fracture her skull and to cause a fatal injury to her brain. Nor does he dispute either that severe blows to the head, particularly to a baby’s head, are so frequently fatal as to pose a grave risk of death, or that a person of normal intelligence would know that and so would perceive the risk. He claims that his mild retardation invalidated that last inference in his case and that otherwise there was no evidence that he recognized the fatal risk posed by blows to the head. We disagree.

Rankin’s experts did not testify that he was incapable of perceiving a grave risk of death, but rather that in some circumstances he would be less capable of doing so than a person of normal intelligence. He was capable, they testified, of appreciating the connection between a blow he saw and the resulting bruise, but might be less able than others to imagine potential causes of a bruise the cause of which he had not witnessed. Other evidence tended to show that Rankin’s ability to perceive risks was not so limited that he would fail to recognize the potentially dire consequences of a severe blow to an infant’s head. First, one of the officers who interviewed Rankin testified that Rankin requested that the interview be recorded. It could fairly be inferred from that request that Rankin perceived the rather abstract risk to himself posed by the law and its officers. More tellingly, in one of Rankin’s police interviews he told the officer that when he was going to leave C.A. on a bed, he would place pillows on the floor around it to protect her in case she fell. A juror could reasonably infer from these pieces of evidence that notwithstanding Rankin’s limitations, he understood that actions could have injurious consequences, and in particular that blunt force impacts could be injurious to a baby. It would not be unreasonable to infer further that Rankin would also understand that the more severe the impact the more serious the potential injury and that very severe impacts posed a grave risk of death. The evidence of wantonness, in other words, was sufficient, and thus even had this issue been preserved Rankin would not be entitled to relief.

CONCLUSION

In sum, Rankin received a fair trial and his guilt was sufficiently proven. Although prospective Juror 462 had been the victim of sexual abuse as a child, her experience was remote enough to make credible her confident assertions that she could assess the evidence in this- physical abuse- and homicide case dispassionately. Video evidence that C.A.’s two-year-old brother was not able to lift a weighted teddy bear from a car seat was sufficiently probative to be admissible. It tended to refute Rankin’s statement to police that- M.A. had injured the child and, by thus calling that statement’s veracity into question, to support the inference that Rankin’s consciousness of guilt caused him to fabricate claims against two-year old M.A. The video experiment’s limitations were obvious and not apt to confuse or mislead the jury, and so were properly deemed to affect the weight of the evidence rather than to preclude its admission. Finally, evidence that Rankin is mildly retarded and perhaps less able than a person,, of normal intelligence to perceive all of the potential consequences of a particular act did not preclude the jury’s finding that he acted wantonly. Sufficient evidence tended to show that Rankin could anticipate a physical act’s immediate consequences, and more particularly that he could understand the risk of death posed by severely striking an infant’s head. Rankin is thus not entitled to relief, and accordingly we affirm the June 11, 2009 Judgment of the Fayette Circuit Court.

MINTON, C.J.; CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., concur. SCHRODER, J., concurs in result only by separaté opinion.

SCHRODER, J.,

Concurring in Result Only:

I concur in result only because I disagree with the majority’s conclusion that the video recording was admissible as “experiment evidence” pursuant to the cases cited, and, in any event, I believe the video recording should have been excluded under KRE 403. However, in light of the overwhelming evidence of injuries to C.A., I would hold the error harmless and affirm.

      . The Commonwealth informs us that in her pleadings before the Court of Appeals, C.A.’s mother refers to herself as Samantha Mona-han Acosta. Because "Monahan” is the name used in the indictment and throughout the trial, we refer to her as "Monahan”.

      . Monahan was convicted of first-degree criminal abuse and sentenced to prison for ten years.

      . This conclusion makes it unnecessary to address whether Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky.2009), which clarifies the manner in which juror selection errors are to be preserved, applied retrospectively to Rankin’s trial. We note that that precise issue was raised in Paulley v. Commonwealth, 323 S.W.3d 715 (Ky.2010), and this Court held Gabbard would not apply retroactively.


source: Caselaw Access Project

author: Chief Justice MINTON.

license: Public Domain

text:
    LaShawn JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000401-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Chief Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Ap-pellee.
   Opinion of the Court by

Chief Justice MINTON.

LaShawn Johnson appeals as a matter of right from a judgment convicting him of first-degree robbery, first-degree burglary, and of being a first-degree persistent felony offender (PFO). Johnson was sentenced to twenty-five years’ imprisonment. He contends on appeal that the judgment must be reversed because the trial court refused to instruct the jury on second-degree robbery and second-degree burglary and that his case must be remanded for an evidentiary hearing on his motion to suppress DNA evidence, alleging that a sample or profile of his DNA had been illegally entered into the CODIS (Combined DNA Index System) database. We disagree with all of Johnson’s contentions on appeal, and affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY.

In the light most favorable to the verdict, the relevant facts are as follows. Around midnight, the victim woke up in his apartment and discovered that an intruder was in his kitchen. The intruder pointed a gun at the victim and ordered him to lie on the floor. The intruder then ordered the victim to give him money. Once the victim remembered that he had lost his wallet, the victim offered the intruder his car keys instead. Fearing that the intruder would not be satisfied with car keys and would not leave, the victim then grabbed the intruder and the two wrestled. The intruder struck the victim with the gun, and the gun was knocked out of the intruder’s hands. The victim kicked the gun under the couch, and pulled the intruder toward the door, which the victim unlocked with a key. The victim later recalled the intruder saying “I just want my piece and then I’ll leave” and assumed that “piece” meant the gun. After opening the door, the victim fled, spraining his ankle on the stairs.

Shortly after the victim escaped the apartment, another man saw him dressed only in boxer shorts, standing on a nearby street corner, acting erratically, and waving at cars before collapsing. The man also recalled that the victim appeared to have been “pummeled by a blunt object” and that the victim’s face and feet were bleeding. After the victim told the man what happened, the man called police and offered to get some clothing for the victim to wear. The victim refused the offer of clothing until police arrived because he feared the intruder would return. The man stated that the victim looked terrified and started vomiting, possibly from fear or pain.

Police arrived and spoke briefly with the victim. One police detective later testified that the victim appeared to be “in shock,” bewildered, and obviously beaten. Although the victim was too shaken at that point to talk at length, he told police that the crime happened at his home and gave a general description of the intruder as a dark-skinned African American male with a narrow face, wearing dark clothes and an unusual hat and carrying a gun. The victim later described the gun in his trial testimony as a black gun with a square handle and square barrel and characterized it as a handgun.

After speaking briefly with police at the scene, the victim was transported to a hospital by ambulance. At the hospital, an MRI of the victim’s facial area appeared normal, but he was treated for a sprained ankle and given a pair of crutches, which he used for several weeks. He also recalled in his trial testimony that he had a small “break” in a bone in his leg, although not in his ankle.

When police inspected the victim’s apartment, they determined that the intruder had likely entered through a kitchen window. Outside that kitchen window they found a soft drink cup with a straw. The cup was filled with red liquid and coated with condensation, indicating that the ice had not fully melted at the time it was found. The intruder had disappeared by the time police inspected the apartment, and police did not find a gun in the apartment. A few days after the incident, the victim turned a gun clip over to police. He stated that he found the gun clip under his couch. The clip was unloaded, and the investigating detective believed that the clip came from a BB or pellet gun, although he’ recognized that people often mistook these guns to be real handguns.

Based upon the style of the cup, the investigating detective determined that the cup and straw had come from a gas station or convenience store about a mile from the victim’s home. And he found that the gas station’s surveillance tape revealed that a man whose appearance matched the description of the intruder given by the victim had bought a red soft drink there shortly before the incident at the victim’s apartment. Printing a still photo from the surveillance tape, the detective used it to prepare an attempt-to-locate flyer and showed the flyer to patrol officers at roll call a few days after the incident. One of the patrol officers recognized the man in the still photo as Johnson and gave Johnson’s name and other contact information to the investigating detective.

The detective was then able to obtain a photograph of Johnson to use in a photo pack. When he showed the photo pack to the victim, the victim ruled out the other five men pictured and said he was seventy percent sure that Johnson’s picture was the picture of the intruder. He indicated in writing that the photo of Johnson “closely resembles” the intruder. The detective then showed the victim the still photo from the surveillance tape on the flyer. The victim later testified to being more certain that this photo on the flyer was the intruder because the man in the flyer photo had the same unusual clothing, distinctive hat, and slight build he remembered the intruder having.

After he was arrested, Johnson admitted that he was the man on the gas station’s surveillance tape. He denied committing the burglary and robbery. Johnson did not testify at the trial.

The victim identified- Johnson as the intruder at trial and testified that he was certain of the identification. He also testified that the room where he had first encountered the intruder was illuminated well, and he stated that he had seen the intruder’s face for five to ten seconds.

In addition to seeking the victim’s identification of the intruder, police had also collected as potential evidence the cup, lid, and straw found outside the victim’s window. These items did not yield any fingerprints, but they were sent to the Kentucky State Police laboratory for DNA analysis. A DNA analyst tested the straw, and obtained a DNA profile from it. The DNA profile was entered on CODIS, and a database search revealed that this DNA profile matched a DNA profile from a “forensic unknown” semen sample collected from the underpants of an alleged rape victim who had accused Johnson of rape a few years earlier.

Police filed an affidavit requesting a buccal swab from Johnson, citing evidence of identification (but not referring to the CO-DIS match) and obtained the necessary search warrant. The DNA sample collected from Johnson via buccal swab matched the DNA profile on the straw at all loci. Johnson was indicted for first-degree burglary and first-degree robbery, and the case proceeded to trial.

Johnson moved pretrial to suppress all DNA evidence, claiming that his DNA profile had been illegally entered into CODIS and that other DNA evidence would not have been obtained without the alleged illegal entry of his DNA profile on CODIS. The trial court denied this motion to suppress. Counsel for Johnson then moved that reference to samples on CODIS for other alleged crimes be excluded, and the trial court granted the motion to exclude DNA and other evidence of other alleged crimes.

Following the presentation of evidence, Johnson argued that the jury should receive instructions on the lesser-included offenses of second-degree robbery and second-degree burglary. The trial court refused to instruct on these lesser-included offenses. After the charges of first-degree robbery and first-degree burglary were submitted to the jury on the trial court’s instructions, the jury returned verdicts of guilty on both charges. During the penalty phase, the jury recommended a sentence of fifteen years’ imprisonment on each conviction, but then recommended enhancing each sentence to twenty-five years’ imprisonment upon finding him guilty of being a first-degree PFO. The jury further recommended that the sentences be served concurrently, and the trial court entered judgment accordingly.

II. ANALYSIS.

A. Trial Court Did Not Err in Refusing to Give Instructions on Second-Degree Burglary and Second-Degree Robbery.

The trial court instructed the jury on the elements of first-degree robbery and first-degree burglary with language closely tracking the statutes defining these offenses. Johnson does not fault the trial court’s instructions on these offenses. But Johnson contends that the trial court committed reversible error' in denying his request for instructions on the lesser-included offenses of second-degree robbery and second-degree burglary. Although Johnson tendered written instructions defining these two lesser-included offenses, and the trial court clearly stated on the record that it would not instruct the jury on these lesser-included offenses, the trial court did not explain why it denied the request to instruct on second-degree robbery and second-degree burglary. We believe that the trial court properly denied instructions on these lesser-included offenses because these requested instructions were not warranted by the evidence, especially the overwhelming and uncontradicted evidence that the intruder caused the victim physical injury.

A person is guilty of second-degree robbery when “in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.” A person is guilty of first-degree robbery when the elements of second-degree robbery are met and the prosecution proves that either the perpetrator:

(1) is armed with a deadly weapon,
(2) uses or threatens immediate use of a dangerous instrument, or
(3) causes physical injury to the victim.

Similarly, a person is guilty of second-degree burglary when “with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling” but he is only guilty of first-degree burglary if, in addition to proving the elements of second-degree burglary, the prosecution shows that either:

(1) he is armed with a deadly weapon or explosives,
(2) he uses or threatens immediate use of a dangerous instrument, or
(3) he causes the victim physical injury.

Johnson argues that because the gun clip found did not contain BBs or pellets and because there was no proof that the intruder’s BB or pellet gun was operable, the jury could have had a reasonable doubt that he was armed with a deadly weapon. Because the jury could have a reasonable doubt that he was armed with a deadly weapon, he argues that a jury could have reasonably found beyond a reasonable doubt that he was guilty of second-degree burglary and second-degree robbery, while harboring a reasonable doubt of his guilt on first-degree burglary and first-degree robbery charges. So he contends he was entitled to an instruction on second-degree robbery and second-degree burglary.

Johnson’s argument focuses on whether the jury could have a reasonable doubt about his being armed with a deadly weapon, but we note that even if the jury had a reasonable doubt about his being armed with a deadly weapon, the jury could have find him guilty of first-degree robbery and first-degree burglary if the jury was convinced beyond a reasonable doubt of either of two other alternative theories: (1) the actual or threatened use of a dangerous instrument, or (2) causing physical injury to the victim in the course of robbing and burglarizing the victim. And there is evidence to support convictions for first-degree robbery and first-degree burglary on any of these three alternate theories, despite Johnson’s argument that an apparent lack of affirmative evidence that the BB or pellet gun was loaded or operable should defeat a finding that the weapon was a deadly weapon.

Johnson is correct that a deadly weapon is statutorily defined as including a weapon “from which a shot, readily capable of producing death or other serious physical injury, may be discharged....” But we have not construed this statutory definition to require proof that the individual weapon was loaded and operable; more accurately, a plurality of this Court has construed this definition as only requiring proof that the weapon was of a class of weapons “from which a shot, readily capable of producing death or other serious physical injury, may be discharged ...” and a majority of this Court has clearly held that whether the individual weapon was loaded or operable is not determinative. And while Johnson correctly and successfully argued to the trial court that whether the weapon was a deadly weapon was a question of fact that should be submitted to the jury to decide, a jury could reasonably determine that a pellet or BB gun was a deadly weapon (i.e. a type of weapon from which a shot could cause death or serious physical injury) in light of history of serious physical injuries caused by BB or pellet guns.

Our precedent holds that a defendant is entitled to an instruction on a lesser-included offense only where the jury might have a reasonable doubt as to his guilt of the greater offense but could find him guilty of the lesser offense beyond a reasonable doubt. Here we cannot conclude that a reasonable jury could find Johnson guilty beyond a reasonable doubt of second-degree burglary and second-degree robbery but not guilty of first-degree robbery and first degree burglary because of the overwhelming and uncontradicted evidence of the intruder causing a physical injury to the victim. In other words, a reasonable'jury could not have a reasonable doubt that Johnson injured the victim under the facts of this case if it believed that Johnson committed the burglary and robbery. The victim testified to being hit with a gun by the intruder, having a facial injury, and suffering a sprained ankle in fleeing the intruder. The man who helped the victim testified to the victim bleeding from his face and feet, looking like he had been “pummeled” with a blunt object, collapsing at one point, and vomiting from pain or fear. The detective testified to the victim appearing in shock and obviously beaten. And Johnson has not pointed to any evidence casting doubt on whether the victim suffered such injuries or whether such injuries were caused by the intruder in the course of the burglary or robbery. So the evidence presented at trial did not warrant instructions on second-degree burglary and second-degree robbery.

Consequently, we affirm the trial court on this issue.

B. Johnson Not Entitled to Further Relief Due to CODIS Issues.

Citing Kentucky Rules of Criminal Procedure (RCr) 9.78, Johnson contends that the case must be remanded to the trial court for an evidentiary hearing on his motion to suppress DNA evidence because of his allegation that his DNA profile was illegally entered into CODIS. Because the trial court conducted a hearing on the motion to suppress and allowed the parties to present evidence and because Johnson failed to present evidence that this DNA profile was illegally entered into CODIS, we do not conclude that he is entitled to another evidentiary hearing upon our review of the record before us and applicable law. Furthermore, the trial court properly denied the motion to suppress because (1) the alleged improper entry into CODIS would only involve a statutory violation and not a constitutional violation and (2) the DNA evidence actually presented at trial was properly gathered in a manner not depending on any improper CODIS entry.

Before trial, Johnson filed a motion to suppress all DNA evidence. In his memorandum supporting this motion, he asserts that S.W. alleged that Johnson had raped her and a sample of his blood was submitted to DNA analysis in 2008, resulting in what Johnson terms a “DNA blood card” for him. But no semen was detected on any portion of the items in the sexual assault evidence collection kit taken from S.W.

In 2004, two other alleged victims (T.H. and C.G.) also accused Johnson of rape, and sexual assault evidence collection kits were obtained from both alleged victims. This time, semen was found on a cutting from C.G.’s underpants. The semen sample was submitted for DNA analysis and compared with Johnson’s “DNA blood card” from the investigation of the alleged rape of S.W. in.2003. The Forensic Case Report from this comparison indicated that the DNA profile from Johnson’s DNA blood card from 2003 matched the DNA profile obtained from the semen found in the cutting from C.G.’s underpants. But Johnson was apparently never charged with raping C.G.

In 2007, following the incident at issue, police collected the straw, cup and lid found outside the victim’s residence and submitted these items for DNA testing. Ultimately only the straw was tested for DNA. A male DNA profile was obtained from the straw. This profile was entered into CODIS to check for possible matches, and the detective received a letter from a database supervisor indicating that there was a match between the DNA on the straw and the DNA profile from the C.G. investigation which had not resulted in charges.

In 2008, the detective filed an affidavit for a search warrant to obtain a buccal swab from Johnson for DNA testing. The affidavit did not mention the match between the DNA profile from the straw in this ease and the DNA profile from the semen found in the uncharged C.G. ease. And apparently police were also still aware that the DNA profile in the C.G. case matched the DNA sample obtained from Johnson in the earlier S.W. case but the affidavit did not mention any DNA evidence obtained in the S.W. case either.

Johnson contends that the detective’s failure to cite the match between the DNA on the straw and the DNA from the semen found in the C.G. case shows that the detective knew that Johnson’s profile had been illegally entered into the CODIS database. He contends that any entry of his DNA profile into the CODIS database was illegal because he had never been convicted of an offense that would require that his DNA profile be entered into the CO-DIS database.

The trial court conducted a hearing on the motion before trial. Johnson’s counsel contended that Johnson’s DNA profile had been illegally entered on CODIS because Johnson did not have the necessary convictions for posting his profile on CODIS. The Commonwealth’s attorney argued that Johnson’s profile had not been entered into CODIS as a convicted offender, but that all entries were labeled “forensic unknown” DNA samples from crime scene specimens. No evidence was taken at that time, but the parties discussed how perhaps some light might be shed on the issue by taking the deposition of Bridget Hol-brook, who performed the DNA testing on the straw and whose notes indicated that the DNA profile collected from the straw would be entered into CODIS and routinely searched. The Commonwealth contends that Johnson could have presented evidence at this hearing but failed to do so.

Holbrook testified by deposition that after obtaining a DNA profile from the straw, she entered the DNA profile from the straw onto CODIS as a “pending forensic unknown” and that following further review by her supervisor, the DNA profile was entered as a “forensic unknown” on state-level and national-level databases which were parts of CODIS. Upon cross-examination by Johnson’s counsel, Hol-brook testified that a search revealed that there was a match on the DNA profile from the straw. But there appears to have been no further discussion of what other DNA profile or sample matched the DNA profile from the straw from our review of the record. The trial court entered a written order denying the motion to suppress, finding that Johnson’s DNA profile had not been entered into CODIS and that the DNA sample from the buccal swab had been properly obtained pursuant to a warrant.

From our review of the record, it appears that later on Johnson moved to exclude DNA evidence from the 2003 and 2004 investigations and this motion was granted. And we are unaware of any DNA evidence from these earlier investigations actually being presented at trial From our review, it appears that the last few minutes of Holbrook’s deposition testimony, in which she indicated that there was a “hit” on the DNA profile from the straw when entered into CODIS, were not played back to the jury. It appears to us that the DNA evidence actually presented at trial consisted of Holbrook’s testimony that (1) she obtained a DNA profile from the straw collected at the scene and (2) that this DNA profile matched the DNA sample collected from Johnson via buccal swab at all loci. Because we are unaware of any allegations that DNA from the straw was improperly obtained and we are convinced from our review of the record that police properly obtained a warrant to collect the buccal swab for DNA analysis and did not depend upon evidence obtained in an unconstitutional manner in doing so, we do not believe that any DNA evidence actually presented should have been suppressed by the trial court or that any further evidentiary hearing is required on Johnson’s motion to suppress.

Kentucky Revised Statutes (KRS) 17.175 provides that the Kentucky State Police shall establish a centralized database of DNA “identification records” including those of convicted offenders and “crime scene specimens” for the purpose of assisting law enforcement with investigating crimes. (KRS 17.170 provides in pertinent part that any DNA sample provided prior to March 27, 2009 shall be “maintained and used” in accordance with KRS 17.175 and KRS 17.510.) The Commonwealth thus argues that different types of entries can be posted on CODIS and acknowledges that posting a person’s DNA sample or profile by that person’s name is only permitted where the person has been convicted or adjudicated guilty of certain crimes. But it submits that the statutes also authorize the posting of DNA profiles obtained from “crime scene specimens” such as the straw recovered from the crime scene here as well as the alleged victim’s underpants in the C.G. case. It contends there was nothing wrong in posting DNA profiles from crime scene specimens as “forensic unknowns.”

We believe that the Commonwealth is correct and agree with the trial court that it does not appear that the statutes regarding CODIS were violated here, especially because Johnson has failed to come forth with any evidence that any DNA profile identified as his was posted on CO-DIS prior to his trial on robbery and burglary charges. Even if such had occurred, this would amount to at most a statutory violation and not a constitutional violation and, thus, would not entitle him to suppression.

The most pertinent question here is not necessarily whether anything was improperly posted on CODIS, but whether the DNA evidence presented at trial was illegally obtained. Obviously the taking of biological samples from a person is a search, and generally a warrant is required to take such samples from a person absent a valid exception to the warrant requirement such as exigent circumstances or consent. But here Johnson does not allege any impropriety in submitting the straw for DNA analysis, and a warrant issued to take a buccal swab from him for DNA analysis.

Despite Johnson’s arguments that the warrant to take the buccal swab somehow stemmed from an illegal entry of his DNA sample or profile onto CODIS and that all DNA evidence should have thus been suppressed as “fruit of a poisonous tree,” we agree with the trial court that the warrant was properly issued. The affidavit for a warrant to obtain a buccal swab did not mention any CODIS entries, but simply stated that DNA had been found on the straw found at the crime scene and pointed to other evidence establishing probable cause that Johnson committed the alleged burglary and robbery.

The affidavit for the search warrant recounted the detective’s finding the convenience store where the cup with red liquid came from and finding footage of a man matching the -victim’s description of the intruder buying a cup with red liquid on the store’s surveillance tape, a police officer’s identification of Johnson as the man shown in the still photo from the convenience store surveillance tape, and the victim’s eliminating all other photos in the photo pack and stating that Johnson’s photo “closely resembles” the man who robbed the victim. Regardless of the detective’s motivation for not mentioning any CODIS entries or matches, a judge properly determined that probable cause existed to justify the search based upon the other aforementioned evidence and not based on any prior CODIS entries or matches. So we discern no reason to exclude the DNA evidence presented at trial because it was not obtained in an unconstitutional manner, and we affirm the trial court on this issue as well.

III. CONCLUSION.

For the foregoing reasons, the trial court’s judgment is hereby affirmed.

All sitting. All concur.

      . Ky. Const. § 110(2)(b).

      . A buccal swab is apparently taken from the inside of a person’s cheek.

      . It is possible that the trial court explained its reasons for denying the request in some portion of the record that has not been cited to us, but the trial court simply stated that it was denying Johnson’s request for instructions on second-degree burglary and second-degree robbery without offering an explanation in the portion of the record cited in briefs. We decline to undertake to ferret out the trial court’s rationale by sifting through the entire record in a possibly vain attempt to learn the trial court’s rationale for denying the requested instructions on lesser-included offenses.

      . Kentucky Revised Statutes (KRS) 515.030(1).

      . KRS 515.020(1).

      . KRS 511.030(1).

      . No one alleged that the intruder was armed with explosives. Therefore, the trial court properly did not ask the jury to consider whether Johnson was armed with explosives, but rather simply asked whether he was armed with a deadly weapon, used or threatened use of a dangerous instrument, or caused physical injury to the victim as part of its first-degree robbery instruction.

      . KRS 511.020(1).

      . Johnson does not appear to argue that there was no evidence to support a finding of either physically injuring the victim or using or threatening the immediate use of a dangerous instrument. And because we conclude that a reasonable jury could consider a BB or pellet gun to be a deadly weapon, logically a reasonable jury could also consider a BB or pellet gun to be a dangerous instrument. See KRS 500.080(3) (defining dangerous instrument as an instrument “readily capable of causing death or serious physical injury’’); KRS 500.080(4)(b) (defining deadly weapon as including a weapon “from which a shot, readily capable of producing death or other serious physical injury, may be discharged”).

      . Johnson points to the fact that the gun clip or magazine was empty when found; however, possibly the intruder could have emptied it after the victim fled or perhaps the gun clip or magazine found did not even come from the same gun carried by the intruder during the burglary and robbery. He also points to the lack of affirmative evidence that the pellet or BB gun, which was never found, was operable.

      . KRS 500.080(4)(b).

      . Wilburn v. Commonwealth, 312 S.W.3d 321, 328-329 (Ky.2010). While only three members of this Court fully concurred with the opinion setting forth the above construction of the statute, a majority of this Court appeared to accept the Wilburn plurality's construction of this statute in the recent unpublished cases of Smith v. Commonwealth, No. 2009-SC-000364-MR, 2010 WL 2471513 at *1 (Ky. June 17, 2010) and Grider v. Commonwealth, No. 2009-SC-000187-MR, 2010 WL 2471868 at *3 (Ky. June 17, 2010).

      . See Wilburn, 312 S.W.3d at 331-32 (Schroder, J., concurring in result only, joined by Scott, J., and stating disagreement with overruling precedent holding that any object successfully intended to convince the victim it is a deadly weapon could support finding of deadly weapon).

      . See generally Thacker v. Commonwealth, 194 S.W.3d 287, 290-91 (Ky.2006). The trial court properly did not declare the pellet or BB gun to be or not to be a deadly weapon as a matter of law. Rather, it instructed the jury on the elements of first-degree robbery and first-degree burglary. It also issued an instruction defining necessary terms for the jury’s determination of whether the elements of both crimes were met. Its definition of deadly weapon followed the language of KRS 500.080(4)(b): "[ajny weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged.”

        . See Ware v. Commonwealth, 34 S.W.3d 383, 385 (Ky.App.2000) (after defendant entered guilty plea to first-degree robbery of store with BB gun, trial court properly determined that defendant was ineligible for probation because BB guns can cause serious physical injury); Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky.1986) (civil negligence action arising from accidental BB gun shooting; plaintiff lost sight in one eye due to it being hit by pellet from BB gun); Coffman v. Commonwealth, No. 2004-CA-002140-MR, 2005 WL 3334356 at *2 (Ky. App. Dec. 9, 2005) (rejecting appellant's argument that victim did not suffer serious physical injury where BB penetrated deep into victim’s brain although treatment was simple as this injury could not logically be viewed as one which "did not create a substantial risk of death....”); State v. Dallen, 452 N.W.2d 398, 398-99 (Iowa 1990) (trial court erred in finding evidence insufficient to support jury finding that gun which shot BBs or pellets was a "dangerous weapon” given testimony that BB shots could cause death in certain circumstances); State v. Seifert, 256 N.W.2d 87, 88 (Minn.1977) (adequate factual basis for guilty plea to aggravated robbery as defendant had been armed with a BB gun, which might qualify as a "dangerous weapon” capable of causing "death or great bodily harm.").

      . Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998) ("An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.”).

      . Although we take note of Johnson's citation to United State Supreme Court authority highlighting the importance of instructing the jury on lesser-included offenses where appropriate, we also note these authorities qualify the right to instructions on lesser-included offenses to apply only where there is evidence to warrant such instructions. See Keeble v. United States, 412 U.S. 205, 208-09, 214, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); Beck v. Alabama, 447 U.S. 625, 636-37, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

      . RCr 9.78 provides in pertinent part that the trial court must hold an evidentiary hearing if a criminal defendant makes a pretrial motion to suppress or objects at trial to the admission of "the fruits of a search.”

      . We are unaware of the circumstances of the collection of a blood sample for DNA testing in the S.W. case. Perhaps Johnson consented to giving a blood sample or perhaps a warrant was issued to collect a blood sample from Johnson. Johnson does not appear to argue that this blood sample was illegally obtained.

      . We do not have a full record of the investigations or any court proceedings regarding the three alleged rapes. Apparently Johnson was never convicted of any rape. It appears that he was never tried on any rape charges. Apparently he was either never charged with all or some of the alleged rapes and/or any rape charges were dismissed.

        .See KRS 17.175 (providing for CODIS database of DNA identification records including those of convicted offenders).
      It is not entirely clear when Johnson alleges an illegal CODIS entry was made. It appears that Johnson complains that DNA analyst Bridget Holbrook's posting the DNA profile from the straw on CODIS was illegal. It also appears that he complains that the DNA profile obtained from the semen on C.G.’s underpants was illegally posted on CODIS. He also may be alleging that the “DNA blood card” obtained from him during the S.W. investigation was posted or that some other DNA profile or sample identified as his was posted on CODIS.
      Despite these possible allegations, we are satisfied that the DNA evidence actually presented at trial (the DNA profile obtained from the straw and the DNA sample taken from Johnson via buccal swab) were obtained in a proper manner not depending upon any actual or alleged prior CODIS entries related to the 2003 and 2004 investigations of alleged rapes.

      . Holbrook was unavailable to testify during the trial; thus, her deposition was taken in lieu of her testifying at trial. We note that Holbrook’s first name is sometimes spelled as "Bridget” and other times as "Bridgett” in the briefs. Although we do not know which spelling is correct, obviously the parties are referring to the same person.

      . Johnson argues that “[t]he use of Johnson's DNA profile generated from a previously obtained biological collection kit in 2003 constitutes a warrantless seizure of his DNA profile in this case.” But his DNA profile (or DNA blood card) obtained from the S.W. investigation in 2003 was apparently not mentioned at trial and as explained elsewhere in our opinion, none of the DNA evidence actually presented at trial was obtained in a manner depending upon his 2003 DNA profile.

      . As the Commonwealth points out, a DNA sample is statutorily defined as “a blood or swab specimen from a person, as prescribed by administrative regulation, that is required to provide a DNA sample pursuant to KRS 17.170 or 17.510, that shall be submitted to the Department of Kentucky State Police forensic laboratory for law enforcement identification purposes and inclusion in law enforcement identification databases.... ” KRS 17.169(1) (emphasis added). In other words, a DNA sample refers to a "blood or swab specimen" from a person statutorily required to provide such a DNA sample and would not refer to a DNA profile obtained from a "crime scene specimen" such as the straw recovered from the crime scene here.

      . KRS 17.510 deals with sex offender registration.

      . See, e.g., Saylor v. Commonwealth, 144 S.W.3d 812, 817 (Ky.2004) (holding that exclusionary rule only requires exclusion of evidence obtained in violation of constitutional rights and that exclusion of evidence obtained in violation of statutory rights is not necessarily required).

      . See generally Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Holbrook v. Knopf, 847 S.W.2d 52 (Ky.1993).

      . Because the police already had a strong independent basis for identifying Johnson as the perpetrator (including an officer’s recognizing him as the man in the still photo from the convenience store surveillance), any information on CODIS which might be used to identify Johnson as the perpetrator here would be of merely cumulative effect.


text:
    Antonio L. BRADLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000561-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, Elizabeth B. McMahon, Assistant Public Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

Antonio Bradley entered a conditional plea of guilty but mentally ill to one count of murder and one count of tampering with physical evidence. Bradley unsuccessfully sought to withdraw his conditional guilty plea, and the trial court sentenced him to twenty years’ imprisonment for murder and five years’ imprisonment for tampering with physical evidence, to run concurrently with each other but consecutively with a cumulative ten-year sentence Bradley received on two counts of attempted arson in another case. Bradley then filed this appeal as a matter of right.

The main issue before us is whether custodial interrogation by the police violated Bradley’s constitutional right to remain silent or his right to counsel — or both rights. After carefully examining the record, we conclude that the police improperly continued to interrogate Bradley after he had invoked his right to counsel. So we hold that the trial court erred by denying Bradley’s motion to suppress his confession. Accordingly, Bradley’s convictions must be vacated. Vacating those convictions renders moot Bradley’s secondary arguments that the police improperly continued to question him after he invoked his right to remain silent and that the trial court erred by denying his motion to withdraw his conditional guilty plea.

The facts that led to the charges against Bradley are not germane to the limited issues presented on appeal. As we understand the underlying facts, Bradley was accused of murdering a person outside an apartment complex and, in a separate indictment, of pouring gasoline on the apartment complex’s steps, ostensibly as a precursor to setting them afire. Because those underlying facts do not involve the limited issues before us, the parties appropriately do not focus on them.

Instead, the parties focus on the facts pertaining to the overarching question we must answer: whether the trial court erred by denying Bradley’s motion to suppress his confession. In answering that question, we must bear in mind that “[w]hen reviewing a trial court’s denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law.”

Neither Bradley nor the Commonwealth takes issue with the trial court’s findings of fact. So those findings of fact are conclusive.

According to the testimony at the suppression hearing of Detective Williamson, Bradley was interviewed in the homicide unit office at police headquarters about the murder for which Bradley was ultimately charged and convicted. The police informed Bradley of his rights under Miranda v. Arizona, including his right to the assistance of counsel and right to remain silent. Bradley signed a waiver-of-rights form before the interrogation.

During the interrogation, Detective Williamson misrepresented to Bradley the state of their investigation when he told him that there was a police officer waiting in the hall who could identify Bradley as having run away from the scene of the shooting. Williamson assured Bradley that he (Williamson) wanted to help him (Bradley).

As set forth by the trial court, the most crucial portion of the interrogation is as follows:

Williamson: Well here’s the deal. Well you know what, you’re right, but it can be a lot worse. You stand up and you tell the truth. Be a man and take what’s coming.... You can either be a cold hearted son-of-a-bitch or you can be a man about it with some remorse. Tony [Bradley] only you can make that decision. I cannot do that for you.
Bradley: So I’m going to [be] sitting behind bars now?
Williamson: Well you know what, it’s your choice. You’re going to do some time. I’m not going to sit here and lie to you. Okay.
Bradley: A lot of time.
Williamson: Well I don’t know. I don’t know the story. Why don’t you run it by me and we’ll look at it.'
Bradley: Well, you know, I need a lawyer or something.
Williamson: Do what?
Bradley: A lawyer.
Williamson: That’s your right. We read you your rights when you come [sic] in here. But I, I’m totally convinced you do what is the right thing and you’ll be better off. You see where I’m at? You feel what I’m saying? Do you want to tell us? Just tell us what happened. It’s nothing we can’t get through, I mean there may be circumstances here that change this whole thing. Only you can tell us. It’s a big step.
Bradley: I did do it.
Williamson: You did what. You shot him? Why?
Bradley: Cause he was trying to get me.
Williamson: What was he doing? Bradley: If I didn’t get him he was going to get me.[]

As the trial court noted, not every use of the word lawyer or attorney by a suspect is an invocation of the right to counsel. Instead, precedent clearly holds that the police must cease interrogating a suspect only if the suspect clearly and unambiguously asserts his or her right to counsel; conversely, questioning may continue if the suspect only ambiguously or equivocally invokes his or her right to counsel. Our task therefore is to determine if Bradley’s invocation of the right to counsel was unequivocal, as Bradley argues, or was equivocal, as the circuit court concluded and the Commonwealth argues on appeal.

In making that determination, we must remember that a suspect “need not speak with the discrimination of an Oxford don....” The suspect need only “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Stated another way, “[i]f reasonable minds could differ on whether a request for an attorney had been made, the language is perforce ambiguous or equivocal.” Because the determination of whether 'a purported invocation of the right to counsel involves an application of law to facts, our review is de novo.

Had Bradley said only, “[w]ell, you know, I need a lawyer” then it would have been clear that he was invoking his right to counsel. The issue is rendered less clear by Bradley’s added “or something” to his statement. Obviously, the generic phrase “or something” lends some superficial credence to the Commonwealth’s claim that Bradley’s request was equivocal. But taken in the relevant context of the questioning, we do not conclude that the phrase “or something” defeats the otherwise clear request for counsel.

Our conclusion is supported by the fact that Detective Williamson asked Bradley for clarification, to which Bradley responded simply “[a] lawyer.” At that point, any ambiguity with regard to Bradley’s desire to invoke his right to counsel was erased. And, crucially, Detective Williamson obviously believed that Bradley had invoked his right to counsel because he responded “[t]hat’s your right.” Taken in full context, Detective Williamson’s recognition that Bradley had a right to counsel is subject to no other reasonable interpretation other than Detective Williamson subjectively recognizing that Bradley had attempted to invoke his right to counsel.

Of course, the test for whether a suspect has clearly invoked the right to counsel is objective, not subjective. But, when the entirety of the relevant exchange between Bradley and Detective Williamson is considered in context, we conclude that Detective Williamson’s subjective acknowl-edgement that Bradley had invoked his right to counsel is also what an objective, reasonable person would have derived from Bradley’s statements. After all, other than the odd phrase “or something,” there is no tentativeness or doubt in the words Bradley used, as is commonly the case when a court deems a purported invocation of the right to counsel to be equivocal. For example, Bradley did not declare that “maybe” he needed a lawyer or that he “might” need a lawyer, nor did he ask Williamson if he believed that Bradley needed a lawyer. In short, Bradley’s comments bear none of the commonly encountered signs of equivocation that would support a conclusion that the suspect has not unequivocally invoked his right to counsel.

In addition to finding that Bradley had not unequivocally invoked his right to counsel, the trial court concluded that Bradley had later waived his right to counsel again when he responded to Williamson’s continued effort to induce Bradley to confess. But law enforcement authorities must cease interrogating a suspect once that suspect has invoked the right to counsel. Only the suspect may re-initiate dialogue with the authorities; the authorities cannot continue to cajole or otherwise induce the suspect to continue to speak without first affording the suspect an attorney.

In the case at hand, once Bradley invoked his right to counsel, Williamson was required to cease in his efforts to get Bradley to speak (ie., confess), without first affording Bradley the services of an attorney. Williamson, however, continued to beseech Bradley to speak — even though Bradley had invoked his right to counsel— without honoring Bradley’s request for an attorney.

Obviously, Williamson’s efforts were successful because Bradley soon confessed. But that confession cannot be used against Bradley because the confession was not made at Bradley’s initiation. Instead, the confession was the result of Williamson improperly continuing to question Bradley once Bradley had invoked his right to counsel. So the fact that Bradley made incriminating statements to Williamson after Bradley had invoked his right to counsel cannot defeat the initial, unequivocal request for counsel. When that request occurred, Williamson erred by refusing to stop his interrogation of Bradley.

The confession and other statements Bradley made after invoking his right to counsel could only be considered to determine if Bradley had, after invoking his right to counsel, waived that right by speaking further to the police without having been afforded the services of counsel. But the only factor that seems to support such a waiver is the existence of Bradley’s statements themselves. And, as previously discussed, those statements were improperly obtained because they were in response to further statements and questions by Williamson and, thus, were not independently voluntary statements made of Bradley’s volition. It is clear that a finding of a valid waiver cannot be based solely on the fact that a suspect “responded to further police-initiated custodial interrogation” after having validly invoked his or her right to counsel. Because Bradley’s incriminating statements were made after he had invoked his right to counsel, because those statements were made in response to further prodding from Williamson, and because there appear to be no other factors to support a conclusion that Bradley had waived his right to counsel shortly after invoking it, we cannot agree with the trial court that Bradley’s statements are a result of his having waived his right to counsel.

In short, we conclude that Bradley unequivocally invoked his right to counsel when he stated that he needed to talk to a “lawyer or something” and then repeated the phrase “a lawyer” when asked to clarify his request. So all questioning of Bradley should have stopped until such time as Bradley was provided an attorney. Because questioning did not stop, the trial court erred by denying Bradley’s motion to suppress. This means that Bradley’s convictions for murder and tampering with physical evidence must be vacated, and this ease remanded to the trial court with instructions to grant Bradley’s motion to suppress.

For the foregoing reasons, Antonio Bradley’s convictions for murder and tampering with physical evidence are vacated and this matter is remanded to the circuit court with instructions to grant the motion to suppress and for any further proceedings consistent with this opinion.

All sitting. All concur.

      . Ky. Const. § 110(2)(b). The murder and tampering with physical evidence convictions are the subject of this appeal; since we denied Bradley’s motion to transfer, the attempted arson convictions are the subject of a matter of right appeal currently pending before the Court of Appeals. See Case No.2009-CA-001642. Because we do not know precisely what issues have been raised in that appeal, we do not express any opinion as to its proper resolution.

      . Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.2006).

      . Kentucky Rules of Criminal Procedure (RCr) 9.78.
      The suppression hearing consisted solely of the testimony of Detective Williamson. Although the interrogation of Bradley apparently was videotaped, that videotape is not found in the record before us. The trial court reviewed that videotape and transcribed it in relevant part. Because neither party takes issue with the trial court’s transcription, we must assume the accuracy of the transcription.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Commonwealth makes much in its brief of Detective Williamson’s testimony at the suppression hearing that he believed that Bradley had asked him (Williamson) if he (Bradley) should have an attorney. But it is undisputed, however, that Bradley stated he wanted a "lawyer or something” — -he did not ask if he should have an attorney. So Williamson’s testimony that Bradley asked if he should have an attorney is directly contrary to the plain language used by Bradley.

        . See, e.g., State v. Gobert, 275 S.W.3d 888, 892 (Tex.Crim.App.2009).

      . See, e.g., Ragland v. Commonwealth, 191 S.W.3d 569, 586 (Ky.2006) (“If at any time during a police interrogation the suspect has 'clearly asserted’ his right to counsel, the interrogation must cease until an attorney is present.”), citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ("But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reiniti-ates conversation.”).

      . Davis, 512 U.S. at 459, 114 S.Ct. 2350 ("But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.... Rather, the suspect must unambiguously request counsel.”) (citations omitted).

      . Of course, a "threshold issue ... in any case involving a perceived violation of Miranda rights ... is whether the defendant was subject to a custodial interrogation at the time he claims he was denied any of his Miranda rights ... because only statements made during custodial interrogations are subject to suppression pursuant to Miranda." Jackson, 187 S.W.3d at 305. But that threshold issue is not before us in the case at hand because it has not been raised in the parties’ briefs.

      . Davis, 512 U.S. at 459, 114 S.Ct. 2350 (internal quotation marks omitted).

      . Id.

        . Burnett v. Commonwealth, No.2005-SC-000820-MR, 2008 WL 746615, at *6 (Ky. March 20, 2008) (Noble, J., concurring in result only).

      . Jackson, 187 S.W.3d at 306 (“Determining whether a specific exchange is a ‘clear and unequivocal’ request for an attorney pursuant to ... Davis v. United States ... requires an application of law to facts which must be reviewed de novo ").

      . In an analogous, but unpublished, opinion, the United States Court of Appeals for the Ninth Circuit concluded that a suspect’s question that "[d]o I get to talk to a lawyer or something?” was an unequivocal invocation of the right to counsel. Krysinski v. Rowland,
        89 F.3d 845, 1996 WL 218172, at *2 (9th Cir.1996) (Table case, text available on West-law) ("We conclude that a reasonable interrogating officer would have understood and that this interrogating officer did understand that Krysinski was requesting an attorney when he said, 'Do I get to talk to a lawyer or something?’ "). Since Bradley’s statement was declarative, not interrogatory, Bradley's statement is even more clearly an invocation of his right to counsel.

      . See, e.g., Robinson v. State, 286 Ga. 42, 684 S.E.2d 863, 865 (2009) (relying on detective’s response, "You said you would like a lawyer” to suspect’s request for attorney to find no ambiguity in suspect’s invocation of right to counsel).

      . Williamson testified that he did not believe that Bradley had invoked his right to an attorney and that he would have ceased questioning Bradley if he (Williamson) believed that Bradley had invoked that right. But Williamson’s testimony on that point cannot easily be squared with his "[t]hat's your right” response to Bradley’s request for an attorney. In short, an objective analysis of this dialogue leads to the conclusion that Williamson knew, or reasonably should have known, that Bradley had invoked his right to an attorney.

      . Davis, 512 U.S. at 458-59, 114 S.Ct. 2350 ("The applicability of the rigid prophylactic rule ... [preventing further questioning once a suspect invokes his or her right to counsel] requires courts to determine whether the accused actually invoked his right to counsel. To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry.”) (citations and quotation marks omitted).

      . See, e.g., id. at 462, 114 S.Ct. 2350 (affirming lower courts’ conclusion that suspect’s statement that "[m]aybe I should talk to a lawyer” was not unequivocal invocation of right to counsel).

      . See, e.g., United States v. Zamora, 222 F.3d 756, 766 (10th Cir.2000) (affirming trial court’s conclusion that suspect’s statement that "I might want to talk to an attorney” not an unequivocal invocation of right to counsel); Yenawine v. Commonwealth, No.2003-SC-0283-MR, 2005 WL 629007 at *3 (Ky. March 17, 2005) (suspect stating to police, "I might need to speak with my lawyer about whether I should talk with you” and handing an attorney’s business card to authorities not an unequivocal invocation of right to counsel).

      . See, e.g., Mueller v. Angelone, 181 F.3d 557, 573-74 (4th Cir.1999) (suspect’s question to police, "Do you think I need an attorney here?” deemed not to be an unequivocal invocation of right to counsel). See also Dean v.

        Commonwealth, 844 S.W.2d 417, 419 (Ky.1992) (suspect's question to police, "should I have somebody here?” not unequivocal invocation of right to counsel).

      . Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880 ("We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police .... [I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”) (emphasis added); Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) ("Edwards set forth a bright-line rule that all questioning must cease after an accused requests counsel. In the absence of such a bright-line prohibition, the authorities through badgerfing] or overreaching — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.”) (citations and quotation marks omitted).

      . Smith, 469 U.S. at 98, 105 S.Ct. 490 ("Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.”).

      . Edwards, 451 U.S. at 484, 101 S.Ct. 1880 ("we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.”).

      . Since Bradley’s convictions are being reversed, his argument that the trial court should have permitted him to withdraw his guilty plea is moot.


author: KELLER, Judge:

text:
    Frank HARSCHER, III, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000661-MR.
    Court of Appeals of Kentucky.
    May 21, 2010.
    Discretionary Review Denied by Supreme Court Dec. 8, 2010.
    Case Ordered Published by Supreme Court Dec. 8, 2010.

      G. Scott Hayworth, Lexington, KY, for appellant.
    Jack Conway, Attorney General, Perry T. Ryan, Assistant Attorney General, Frankfort, KY, for appellee.
    Before VANMETER, Acting Chief Judge; COMBS and KELLER, Judges.
   OPINION

KELLER, Judge:

Frank Harscher, III (Harscher) appeals from an order of the Fayette Circuit Court denying his motion to expunge his record. For the following reasons, we affirm.

On March 27, 2000, a jury found Harscher guilty of making a false statement as to identity or financial condition to obtain a credit card, a Class D felony, and recommended that he be sentenced to one-year imprisonment. On April 27, 2000, the trial court entered its final judgment sentencing Harscher to one-year imprisonment probated for five years. Harscher successfully completed his probationary period.

By executive order issued on December 10, 2007, Governor Ernie Fletcher pardoned Harscher’s 2000 conviction. The order states in pertinent part the following:

NOW, THEREFORE, I, Ernie Fletcher, Governor of the Commonwealth of Kentucky, in consideration of the foregoing, and by the virtue of the authority vested in me by Sections 77, 145, and 150 of the Constitution of the Commonwealth of Kentucky, do hereby unconditionally pardon Frank Harscher III and return to him all rights and privileges of a citizen of this Commonwealth.

On March 13, 2009, Harscher filed a motion to expunge his record pursuant to Kentucky Revised Statute (KRS) 431.076. A hearing was held on March 13, 2009, in the Fayette Circuit Court, and on March 16, 2009, the trial court denied Harscher’s motion. In its order, the trial court noted that KRS 431.078 does not permit ex-pungement of felonies. The trial court further reasoned that while a pardon forecloses punishment of the offense itself, it does not erase the fact that the offense occurred. Thus, the trial court concluded that the pardon granted to Harscher was not grounds for expungement of his conviction. This appeal followed.

On appeal, Harscher makes two arguments. First, Harscher contends that the trial court erred in denying his motion to expunge because a pardon automatically entitles the pardoned individual to ex-pungement of his court records. Second, Harscher argues that the trial court incorrectly applied KRS 431.078 instead of KRS 431.076 when it denied his motion to expunge. Because both issues raised by Harscher are purely matters of law, we review the circuit court’s ruling de novo. Commonwealth v. Groves, 209 S.W.3d 492, 495 (Ky.App.2006).

The power to issue pardons is granted to the Governor in Section 77 of the Kentucky Constitution, which provides that the Governor “shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons....” While the Kentucky Constitution vests the Governor with the power to grant pardons, it does not expressly address the effects of a pardon, including the expungement of criminal records. The Legislature has addressed the expungement of criminal records in KRS 431.076 and KRS 431.078. However, neither KRS 431.076 nor KRS 431.078 addresses the expungement of pardoned convictions. Thus, we must look “to common law to determine the extent of the Governor’s pardoning power contained in Section 77 of the Kentucky Constitution.” Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky.2003) (citing Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 126 S.W.2d 1056, 1057 (1939)).

Harscher argues that a full pardon has the effect of eliminating guilt or the fact of the conviction, and thus expunges the record of the pardoned individual. In support of his argument, Harscher relies on Jackson v. Rose, 223 Ky. 285, 3 S.W.2d 641 (1928). In Jackson, the Governor of Kentucky pardoned Jackson of his manslaughter conviction prior to his sentencing hearing. After realizing that he misspelled Jackson’s name in the pardon, the Governor issued a second pardon correcting his mistake. The prosecutor objected to the filing of the second pardon arguing that the Governor’s power was exhausted by the first pardon and that he was without authority to grant the second pardon. The trial court sustained the prosecutor’s objection and refused to recognize the pardon. Thus, the trial court sentenced Jackson and placed him into custody. Id. at 642-43.

Jackson filed a petition for a writ of mandamus to compel the trial court to give effect to the post-conviction pardon and to discharge him from custody. In granting the petition, the former Kentucky Court of Appeals opined that:

A pardon is binding on everyone, including the courts. It is not necessary that the pardon be supported by a formal plea. All that is necessary is that the pardon be called to the attention of the court.... When a pardon ... is brought to the attention of the court, it is the duty of the court to discharge the defendant and dismiss the proceeding against him, since the pardon is itself an absolute exemption from any further legal proceedings which would tend to harass the defendant on account of the crime.

Id. at 643 (internal citations omitted). Harscher argues that because a pardon requires the court to “dismiss the proceeding against [a defendant]” a pardon eliminates or wipes out the conviction as if it were never committed. Id. Therefore, he argues that a pardoned conviction must be expunged. We disagree.

As stated in Anderson, a pardon is the “act or an instance of officially nullifying punishment or other legal consequences of a crime.” 107 S.W.3d at 196 (quoting Black’s Law Dictionary (7th ed.1999)). A full and complete pardon also restores all civil rights to the pardoned felon. Id. In Fletcher v. Graham, 192 S.W.3d 350, 362 (Ky.2006), the Supreme Court of Kentucky emphasized that a pardon relieves the offender from “all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned, and attains new credit and capacity, as if he had never committed that public offense” (quoting Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337, 338 (1908)). However, the Court went on to state that:

A pardon does not prevent any and all consequences of the pardoned offense: collateral consequences of the offense may still follow. For example, an attorney who has been pardoned for the offense of forgery may not be punished for that crime, but may be disbarred as a result of that offense. Our predecessor court also recognized that a gubernatorial pardon does not restore the character of the witness/pardonee, so that he or she could still be impeached as a felon. Thus, while a pardon will foreclose punishment of the offense itself, it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee’s detriment.

Id. at 362-63 (internal citations omitted) (emphasis added).

Thus, while a full pardon has the effect of removing all legal punishment for the offense and restoring one’s civil rights, it does not wipe out either guilt or the fact of the conviction. See Nelson, 109 S.W. at 338 (concluding that a pardon “cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time.”) Because a pardon does not erase the fact that the individual was convicted, we conclude that a pardon does not entitle an individual to expungement of his criminal record.

We note that some of our sister jurisdictions have concluded that a pardoned individual is entitled to have his criminal record expunged. See State v. Cope, 111 Ohio App.3d 309, 676 N.E.2d 141 (1996): State v. Bergman, 558 N.E.2d 1111 (Ind.Ct.App.1990); Commonwealth v. C.S., 517 Pa. 89, 534 A.2d 1053 (1987). However, this Court “is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Kentucky Supreme Court Rule (SCR) 1.030(8)(a). Thus, as set forth above and based on our jurisprudence, we are constrained to conclude that a pardon does not automatically entitle the pardoned individual to expungement of his court records.

Harscher also argues that the trial court erred in applying KRS 431.078 instead of KRS 481.076 when it denied his motion to expunge. Although Harscher moved the court to expunge his record pursuant to KRS 431.076, the trial court applied KRS 431.078. As correctly noted by the trial court, KRS 431.078 only applies to the expungement of certain misdemeanor convictions and does not permit the expungement of felonies. However, KRS 431.076(1) does permit the following individuals to make a motion for expungement of a criminal record:

A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense.... Harscher argues that the trial court

should have applied KRS 431.076 because the pardon of his conviction resulted in his felony charge being dismissed with prejudice. We disagree. Because a pardon does not have the effect of eliminating guilt or the fact of conviction, Harscher cannot maintain that he “has been found not guilty of the offense” or that his “charges have been dismissed with prejudice.” KRS 431.076(1). Thus, Harscher cannot satisfy the requirements of KRS 431.076. Accordingly, the trial court correctly denied Harscher’s motion to expunge, regardless of whether it applied KRS 431.076(1) or KRS 431.078.

For the foregoing reasons, we affirm the order of the Fayette Circuit Court.

ALL CONCUR.