         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED `NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                   RENDERED : MARCH 18, 2010
                                                        NOT.
                                                          ; TO BE--
                                                               t




                   '$-UyrrMr      (~Vurf      of
                               2008-SC-000923-MR

                                                                       S
 WILLIE L. LITTLE                                                      APPELLANT



                    ON APPEAL FROM LETCHER CIRCUIT COURT
 V.                 HONORABLE SAMUEL T. WRIGHT, III, JUDGE
                               NO . 07-CR-00208



 COMMONWEALTH OF KENTUCKY                                               APPELLEE


                     MEMORANDUM OPINION OF THE COURT

                   AFFIRMING IN PART AND REVERSING IN PART

       Appellant, Willie E . Little, was a passenger in a car that was stopped in

 Norton, Virginia. Officer James McReynolds of the Norton City Police

Department detained Appellant during the stop, eventually placing him under

arrest. Due to malfunctioning audio equipment in Officer McReynolds' vehicle,

Appellant was placed in the unmarked cruiser of Sergeant Grey Mays, another

officer who had arrived at the scene . However, Sergeant Mays' vehicle did not

have a "cage" for transporting prisoners and, as a result, Appellant was

handcuffed behind his back and placed in the front seat of the vehicle on the

passenger side .

      The officers gathered behind the vehicle to speak to one another. While

they were talking, they heard the driver's side door close and the vehicle pulled

away at a high rate of speed . Trooper Jason Nichols got into his own cruiser,
 activated his emergency lights, and gave chase. Kentucky State Trooper Randy

 Surber received a dispatch that someone had stolen a police cruiser and was

 on Highway U.S . 23 headed toward Kentucky . Surber positioned himself on

 U.S . 23 north of the state line and retrieved a stinger, or spike strip, from the

 trunk of his car. Appellant appeared to be in the left lane in an attempt to

 bypass the officer, so Surber stood across the fog line and threw the spike

strip. As the spike strip was deployed, Appellant veered to the right to avoid it,

missing Surber by "a few feet or inches ." Appellant continued driving down

U.S . 23 .

       Sergeant Adam Swindell of the Jenkins Police Department was heading

south-bound on U .S . 23 and pulled over to deploy another spike strip.

Appellant was in the left turn lane in an apparent attempt to turn onto U .S .

119 toward Whitesburg. Swindell ran across the highway to the center of the

road, threw a spike strip in front of Appellant's vehicle, and ran back toward

the left-hand side of the road. Appellant swerved as the spike strip was thrown

and came within five or six feet of Swindell. Approximately a half mile down

the road, Appellant's vehicle began to fishtail and was stopped by a large rock.

      Appellant was tried in Letcher Circuit Court. After a two-day trial, the

jury found Appellant guilty of two counts of wanton endangerment in the first

degree, fleeing or evading police in the first degree, criminal mischief in the first

degree, and being a persistent felony offender in the second degree . Appellant

received a cumulative sentence of imprisonment for twenty years . He now
 appeals the final judgment entered as a matter of right, Ky. Const. § 110(2) (b) .

       Appellant raises multiple issues on appeal: (1) the trial court allowed the

 introduction of unauthenticated documents during the PFO phase ; (2) the

 convictions for wanton endangerment and fleeing or evading police violated

 double jeopardy ; and (3) the trial court omitted an essential element in the jury

instructions for fleeing or evading police in the first degree .

 Unauthenticated documents during PFO phase

       During the PFO phase of the trial, the Commonwealth sought to

introduce two documents to prove a prior felony conviction sufficient to

support the charge. KRS 532 .080(2) . The first document was a facsimile of a

1970 murder indictment in the Pike Circuit Court . The document contained a

certification that it was "an exact photocopy of the original unaltered

document," and that the original was "on deposit with the Kentucky

Department for Libraries and Archives, Public Records Division." The second

document was a photocopy of a certified copy of the original judgment from

probation and parole records in Pike County.

      Over Appellant's objection, the trial court allowed both documents to be

introduced . As to the facsimile, the trial court stated that since the document

came from the Kentucky Department for Libraries and Archives and was being

produced through the Pike Circuit Clerk's office, the authenticity was

sufficiently established. As to the second document, the trial court allowed its

introduction because the judgment was a record of a state agency that was
 kept in the regular course of its business. Appellant moved for a directed

 verdict on the PFO charge, stating that the documents were not properly

 authenticated, and that as such, there was insufficient proof to sustain a

 conviction. The trial court denied Appellant's motion.

       The admission of these documents was error. The Commonwealth

concedes as such . I KRS 532 .080(2) requires the Commonwealth to prove, in

order to establish guilt as a second-degree persistent felony offender, that the

defendant is more than 21 years of age and stands convicted of a felony after

having been convicted of one previous felony; that he was more than 18 years

of age at the time of the prior offense; and his parole status . The

Commonwealth has the burden of proving every element of the charge. Adams

v. Commonwealth, 551 S .W .2d 561 (Ky. 1977) . However, evidence of a prior

conviction "must come from the official court record, or certified copies

thereof." Finnell v. Commonwealth, 295 S.W .3d 829, 835 (Ky. 2009) . Finnell

noted that in the case of Commonwealth v. Mixon, 827 S .W.2d 689 (Ky. 1992),

testimony was given concerning an uncertified document, but stated "that

should not be read as an endorsement of using anything other than official

records or certified copies thereof." Id. at 834 .

       In addition, KRE 902(4) provides that certified copies of public records

are self-authenticating and admissible into evidence . However, the documents

presented to the trial court by the Commonwealth were either a copy of a

1 In its brief to this Court, the Commonwealth states: "While the circuit court may be
  correct that considering the source authenticity is sufficiently established, the
  Commonwealth, in particular this attorney, at this time is somewhat constrained
  from arguing that such was not error."
 certified copy or received via facsimile. In practical effect, both documents are

 copies of certified copies . KRE 902 does not provide for self-authentication of

 copies of certified copies, nor does it attach certified copy status to such a

-document . "`Certified copies' cannot and does not mean copies of certified

 copies ." State v. McGuire, 555 P.2d 330, 333 (Ariz . 1976) (emphasis in

 original) . Allowing the introduction of these documents would invite tampering

 and alteration, especially through expert use of copying machines or other

forms of technology . Ultimately, we feel that these documents "lack[] the

requisite indicia of reliability necessary to reliably prove a defendant's prior

convictions." Finnell, 295 S .W.3d at 835 .

          In the instant case, the Commonwealth failed to offer official court

records or certified copies of Appellant's prior conviction . Therefore,

Appellant's conviction for being a second-degree persistent felony offender must

be reversed . However, on remand, double jeopardy principles will not preclude

further proceedings . Here, we are reversing Appellant's PFO conviction not

because the Commonwealth failed to present sufficient evidence, but because

the evidence introduced was improperly authenticated and, therefore,

incompetent. See Merriweather v. Commonwealth, 99 S .W.3d 448 (Ky. 2003) .

There was sufficient evidence to sustain a second-degree persistent felony

offender conviction . However, such evidence should have come in the form of

official court records or certified copies thereof. As this Court has previously

stated:
             [R]eversal for a trial error which incorrectly admitted
             incompetent evidence does not constitute a decision
             that the government has failed to prove its case.
             Rather, it is a determination that although the
             government did prove its case, it did so by evidence
             which was incompetent, and defendant is entitled to a
             new trial free of this procedural defect.

 Commonwealth v. Mattingly, 722 S .W .2d 288, 288-89 (Ky. 1986) .

       Accordingly, Appellant's conviction for being a second-degree persistent

felony offender is reversed and the matter is remanded to the Letcher Circuit

Court for a new penalty phase of the trial.

Double jeopardy

      Appellant's next assignment of error is that his convictions for first-

degree wanton endangerment and first-degree fleeing or evading violate double

jeopardy principles . Specifically, Appellant argues that operating a motor

vehicle with the intent to elude or flee the police will always manifest extreme

indifference for the value of human life . Additionally, Appellant states that the

same evidence was used by the Commonwealth to prove both offenses.

Appellant concedes that this argument is not preserved for review .

Nevertheless, we have held that failure to object on grounds of double jeopardy

does not constitute a waiver of the right to raise the issue for the first time on

appeal. Brooks v. Commonwealth, 217 S .W .3d 219, 221-22 (Ky. 2007) .

      Kentucky follows the Blockburger rule "as the sole basis for determining

whether multiple convictions arising out of a single course of conduct

constitutes double jeopardy." Taylor v. Commonwealth, 995 S.W.2d 355, 358
 (Ky. 1999) . The applicable rule is that, where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one is whether

each provision requires proof of an additional fact which the other does not .

Id. (quoting Blockburger v. United States, 284- U .S . 299, 304 (1932)) .

       We find Appellant's argument to be without merit . This issue was

addressed by this Court in Brown v. Commonwealth, 297 S .W.3d 557 (Ky.

2009) . In Brown, this Court stated:

                [A]s with first-degree wanton endangerment, the three
               elements of operating a motor vehicle, having intent to
               elude or flee, and disobeying a police officer's direction
               to stop are required of the fleeing or evading police
               charge but not of the wanton endangerment charge .
               Consequently, each provision requires proof of a fact
               that the other does not . Thus, Appellant's convictions
               for first-degree fleeing or evading police and first-
               degree wanton endangerment do not constitute double
               jeopardy .

Id. at 563 .

       Furthermore, it is a well-established principle that "[a]n overlap of proof

does not necessarily establish a double jeopardy violation." Smith v.

Commonwealth, 905 S.W.2d 865, 867 (Ky. 1995) . Accordingly, Appellant's

convictions for first-degree wanton endangerment and first-degree fleeing or

evading do not violate the principles of double jeopardy .

Jury instructions

      Appellant's final assignment of error is that the instructions given to the
 jury for the first-degree fleeing or evading charge omitted multiple essential

 elements of the crime. Appellant concedes this argument is not preserved, but

 nevertheless requests palpable error review under RCr 10.26.

       The instruction, as given to the jury, states:

             You will find the Defendant guilty of 1St Degree
             Fleeing/ Evading Police under this Instruction if, and
             only if, you believe from the evidence beyond a
             reasonable doubt all of the following:

             A. That in this County on or about September 16,
             2007, and before the finding of the Indictment herein,
             he operated a motor vehicle with the intent to flee or
             elude ;

             AND

             B. That his act of fleeing or eluding caused or created
             a substantial risk of serious physical injury or death to
             Trooper Randy Durber and/or Officer Adam Swindell.

             If you find the Defendant guilty of Fleeing or Evading
             the Police 1St Degree under this Instruction, you will so
             indicate on the Verdict Form provided with these
             Instructions and nothing more as to this Count of the
             Indictment.


      According to Appellant, this instruction fails to include several key

elements found in KR.S 520 .095(l) . Specifically, Appellant states that the

instructions failed to include the requirements that a defendant "knowingly or

wantonly disobeys a direction to stop his or her motor vehicle, given by a

person recognized to be a police officer." As such, Appellant contends that the

jury instruction was so deficient as to deny him his substantial rights. We
 disagree .

        While it is true that any error in jury instructions is presumed to be

 prejudicial, this presumption can be successfully rebutted upon a showing that

 the error was harmless . .t-larl) v. Commonwealth, 266 S.W .3d 813, 818 (Ky.

 2008) . The United States Supreme Court has stated that an erroneous jury

 instruction that omits an essential element of the offense is subject to the

 harmless error analysis . Neder v. United States, 527 U.S . 1, 9 (1999) ; Delaware

 v. Van Arsdall, 475 U .S . 673, 681 (1986) . This ruling is in accord with a line of

cases in which juries were given instructions consistent with the charged

crime, yet where error occurred because a necessary element of the offense was

omitted . See Wright v. Commonwealth, 239 S .W .3d 63 (Ky . 2007) ; Thacker v.

Commonwealth, 194 S.W .3d 287 (Ky. 2006) ; Commonwealth v. Potts, 884

S.W.2d 654 (Ky. 1994) . However, due to the fact that this error is unpreserved,

harmless error review in this instance is inappropriate . See Martin v.

Commonwealth, 207 S.W .3d 1, 5 (Ky . 2006) ("[R]eviewing courts should

endeavor to avoid mixing the concepts of palpable error and harmless error.

One is not the opposite of the other.") . As such, the proper standard of review

in this case is to determine whether an RCr 10 .26 violation occurred.

      After reviewing the record in this case, we conclude that the jury verdict

would have been the same had the jury been properly instructed on first-degree

fleeing or evading. The evidence offered at trial by the Commonwealth showed

that Appellant sat alone in an officer's unmarked vehicle, moved into the
 driver's seat, and then led multiple police cruisers on a high-speed chase

 through parts of Virginia and Kentucky . This ultimately led to Appellant nearly

 striking two Kentucky police officers who were attempting to lay down spike

 strips.

       We have recently addressed the palpable error standard in Sanders v.

 Commonwealth, No . 2008-SC-00011.8-MR, 2010 WL 254258 (Ky., January 21,

2010) and Carver v. Commonwealth, No. 2007-SC-000428-MR, 2010 WL

274557 (Ky ., January 21, 2010) . Those two cases required reversals because

the juries found the respective defendants guilty under jury instructions which,

on their face, did not constitute a crime, or at least not the crime charged .

Such instructions, by their very nature, rise to a manifest injustice and

palpable error. Here, however, the elements are consistent with the crime

charged, but the error regards a missing element .

       Given the evidence introduced at trial, to which Appellant offers nothing

to the contrary, we believe that a jury could reasonably find that Appellant

"knowingly or wantonly disobey[ed] a direction to stop his . . . motor vehicle,

given by a person recognized to be a police officer." Accordingly, we cannot say

that the error present in the jury instructions was "so fundamental as to

threaten . . . defendant's entitlement to due process of law." Martin, 207

S .W .3d at 3 . Thus, it does not rise to a manifest injustice or palpable error.

       For the reasons stated herein, the judgment and sentence of the Letcher

Circuit Court regarding the second-degree persistent felony offender conviction
is reversed, and this matter is remanded to the trial court for a new penalty

phase trial . We affirm Appellant's convictions for wanton endangerment in the

first degree, fleeing or evading in the first degree, and criminal mischief in the

first degree .

       All sitting. All concur.




COUNSEL FOR APPELLANT:

Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
