        impORTA]V~TICE
       NOT TO BE PUBLISHED OPINION




THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CITALL PROCED URE PROMUL GATED BY THE
SUPREME COURT, CR 76.28 (4) (c)., THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASE _IN ANY COURT OF THIS STATE.
                                                       RENDERED : NOVEMBER 22, 2006
                                                              NOT TO BE PUBLISHED




                 ,Suprmt Caurf of

                                      2005-SC-0849-MR


 ARTHUR CLEVELAND WILLIS                                                       APPELLANT


                    APPEAL FROM JEFFERSON CIRCUIT COURT .
                 HONORABLE JUDITH McDONALD BURKMAN, JUDGE
 V.                              04-CR-3058


 COMMONWEALTH OF KENTUCKY                                                       APPELLEE


                       MEMORANDUM OPINION OF THE COURT

                                          Affirmi ng

       A jury of the Jefferson Circuit Court convicted Appellant of assault in the first

degree and being a persistent felony offender in the first degree . For these crimes,

Appellant was sentenced to a total of twenty (20) years imprisonment . Appellant now

appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) . For the reasons set

forth herein, we affirm Appellant's convictions .

       The crimes for which Appellant was convicted stem from a midnight encounter at

Darlene Smith's residence on July 22, 2004. Appellant and Smith had known each

other since 1979, and Appellant had been staying in Smith's basement for

approximately two months before this incident. Appellant, however, announced that he

was moving out the evening of July 21, 2004. Smith told Appellant to make sure to
 return early enough to gather his belongings . When Appellant returned at midnight,

 Smith and the victim, Ricky Shelly, were sitting on the front porch, and Appellant found

 that his belongings had already been packed.

        Appellant became angry and exchanged words with Shelly . Appellant went

 inside very upset and returned with a knife. As Shelly tried to retreat from Appellant,

 Appellant cut Shelly's arm in two places and stabbed him in the abdomen and groin .

 Meanwhile, Shelly picked up a pair of hedge trimmers in defense but never struck

 Appellant . Shelly fled the residence wounded and losing blood . Appellant proceeded to

 attack Smith's sixteen year old son, Emmanuel, by slamming his head against the wall

 and threatening to stab him as well.

        Appellant was subsequently charged with and convicted of the crimes of assault

 in the first degree and being a persistent felony offender in the first degree. At trial,

Appellant argued that he only stabbed Shelly because he was scared that Shelly would

hurt him and that he did not intend to kill or seriously injury Shelly. Appellant now

appeals to this Court, alleging several errors which he claims entitle him to a new trial.

For the reasons set forth herein, we affirm.

         The first error claimed by Appellant is that the trial court abused its discretion

when it selected a juror as the alternate because the juror was unable to appear on the

last day of trial due to a childcare issue . In Lester v. Commonwealth , 132 S.W.3d 857

(Ky. 2004), this Court held that the removal of a juror for cause is reviewed for abuse of

discretion. We find no reason to believe that the trial judge's decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles .

       The trial judge contacted the juror and discovered that not only was the juror

unable to come that day, but she was also unsure of whether she could find care for her
  children the next day. The trial court recessed for some quick research and decided to

  designate the juror as an alternate. "[A defendant] does not have a constitutional right

  to have a particular person sit as a juror. He merely has the right to have a particular

  class of persons on the jury and the right to exclude certain individuals ." See Hodge   v.
  Commonwealth , 17 S.W.3d 824 (Ky. 2000). Defendant fails to show that he suffered

 any prejudice due to the trial court's action . Therefore, we find no error.

        Appellant next argues that the trial court erred in allowing a twenty-three year old

 conviction to be used for impeachment purposes. KRE 609 states that prior felony

 convictions more than ten years old cannot be used for impeachment purposes unless

 the probative value outweighs the prejudicial effect. A trial court does, however, have

 discretion to allow evidence of convictions more than ten years old . McGinnis v.

 Commonwealth,, 875 S .W.2d 518 (Ky. 1994). Decisions on admission of evidence will

 be reviewed only for an abuse of discretion . See etc .., Barnett v. Commonwealth , 979

 S .W .2d 98 (Ky. 1998) . We find no abuse of discretion.

        In Miller ex. rel. Monticello Baking Co . v. Marymount Medical Center, 125 S .W .3d

274 (Ky. 2004), the Court noted three factors to consider in whether to allow evidence of

a prior conviction more than ten years old: (1) whether the witness testified about

substantive matters and put his credibility directly at issue, (2) whether the conviction

was a crime of dishonesty and weighed more heavily on the issue of credibility than

another type of conviction, and (3) the age of the conviction . In the case at hand,

Appellant put his credibility directly at issue by testifying to substantive matters and

sometimes in contradiction to the testimony of three eyewitnesses . As to the age of the

conviction, it was much older than that admitted in Monticello Baking , however,

Appellant had only been out of prison for four years before trial and three years before
  the stabbing incident. In addition, the prosecutor only inquired as to whether Appellant

  had ever been convicted of a felony. She did not ask about the substance or even how

  many prior convictions existed . Therefore, we find, under the totality of the

  circumstances, that the trial judge's decision was not arbitrary, unreasonable, unfair, or

  unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky.

  1999) .

            Appellant further contends that the trial court committed prejudicial error by failing

 to give instructions for lesser included offenses requested by defense counsel . A trial

 court is required to instruct on the whole law of the case including instructions on any

 lesser included offenses supported by the evidence . Holland v. Commonwealth, 114

 S .W.3d 792, 802 (Ky. 2003). The trial court should instruct on lesser included offenses

 if, upon the totality of the evidence, a jury might have reasonable doubt about guilt on

 the greater offense but still believe beyond a reasonable doubt the defendant is guilty of

 the lesser included offense. Id .

         The trial court instructed the jury on a charge of assault in the first degree and

included an instruction for assault under extreme emotional disturbance and an

instruction on self-defense . We find that, under the totality of the evidence, the trial

court was not erroneous in its determination that Appellant's alternative instructions for

lesser included offenses were not supported by the evidence . Therefore, we find no

error.

         Appellant next argues that there was a Bradv violation and that the trial court

erred by not permitting the evidence to be admitted at trial for the purpose of

impeaching a key prosecution witness . We disagree . Appellant neither established that

the information was deliberately withheld so as to amount to a Bradv violation nor that
 he was prejudiced by the trial court's decision . See Coe v. Bell, 161 F .3d 320 (6th

 Cir.1998) .

        Appellant contends that Dr. Bill Smock, a key witness as to the severity of the

 victim's injuries, was associated with the Metro Louisville Police Department and that

 this evidence was exculpatory, known to the prosecution, and withheld from Appellant .

 However, the Commonwealth attempted to subpoena the treating emergency physician,

 Dr. O'Brien, but found out only days before trial that he had moved to California.

 Therefore, Dr. Smock, the head of the emergency room department, testified by default

 based upon the observations Dr. O'Brien made in the medical records . There is no

 evidence to suggest that Dr. Smock was a "hired gun" as Appellant would have this

 Court believe .

        The mere possibility that an item of undisclosed information might have helped

the defense or affected the outcome does not establish materiality in a constitutional

sense so as to constitute a Bradv violation . United States v. Agurs, 427 U .S . 97, 96

S .Ct. 2392, 49 L.Ed .2d 342 (1976). Appellant has not demonstrated that the alleged

violation was actually prejudicial or that the trial judge committed error or otherwise

abused his discretion . Therefore, we find no error.

       Appellant finally argues that the trial court erred by reading instructions to the jury

before proof was presented in the sentencing and persistent felony offender phase of

the trial . Appellant admits this error was not preserved for review but requests that this

Court consider it as palpable error under RCr 10.26 . Reversing a conviction based on

palpable error requires this Court to determine that a manifest injustice has resulted

from an error which affects the substantial rights of a party. RCr 10.26 . We do not find

this to be the case . Therefore, we find no reversible error.
        For the reasons set forth herein, the judgment of the Jefferson Circuit Court is

affirmed .

       Lambert, C .J., Graves, Scott, and Wintersheimer, J .J. ; concur.

       Roach, J ., dissents by separate opinion in which McAnulty and Minton, J .J., join .

ATTORNEY FOR APPELLANT

Frank W. Heft, Jr.
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 W. Jefferson Street
Louisville, KY 40202

ATTORNEYS FOR APPELLEE

Gregory D. Stumbo
Attorney General

James C. Shackelford
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
                     ,Suyrrm:e Courf of ~6ufurhV
                                        2005-SC-0849-MR


ARTHUR CLEVELAND WILLIS                                                        APPELLANT


                      APPEAL FROM JEFFERSON CIRCUIT COURT
V.                    HON. JUDITH MCDONALD BURKMAN, JUDGE
                                   NO. 04-CR-3058


COMMONWEALTH OF KENTUCKY                                                        APPELLEE


                          DISSENTING OPINION BY JUSTICE ROACH


        Because I believe Appellant was entitled to instructions on assault in the second

degree, I respectfully dissent .

       Dr. Bill Smock provided the sole testimony regarding Shelly's physical injuries.

According to Dr. Smock, Shelly was stabbed in the abdomen, the groin and the right

arm. Exploratory surgery was performed which revealed that the stab wound

penetrated the abdominal muscles and the peritoneum. Though blood had pooled in

the abdomen due to severed blood vessels, there was no injury to the intestines or

other internal organs . Dr. Smock characterized the wounds to Shelly's abdomen as

serious because it was possible for him to bleed to death if left untreated . It must be

noted, however, that Dr. Smock was not the treating physician . The emergency room

physician who treated Shelly was unavailable to testify at the time of trial, and Dr.

Smock, having reviewed Shelly's records, testified instead .

       The trial court accepted Dr. Smock's testimony as uncontroverted evidence that

Shelly's wounds were sufficiently grave to support only a finding of first degree assault .
The jury, however, is not required to accept Dr. Smock's opinion testimony simply

because there was no evidence directly contradicting it. In fact, Dr. Smock's testimony

itself was sufficiently indefinite to support varying conclusions as to the seriousness of

Shelly's injuries. Although Dr. Smock testified that Shelly's injuries created a risk of

death if left untreated, he never definitively quantified that risk during his testimony.

This, coupled with the fact that Dr. Smock never personally treated Shelly, created a

sufficient basis for the jury to conclude that injury was merely a "physical" injury as

defined in KRS 500.080(13) . In other words, while Dr. Smock acknowledged that

Shelly's wounds could be life-threatening in certain circumstances, this testimony alone

was insufficient to establish as a matter of law that Appellant's actions caused "serious

physical injury" within the meaning of KRS 500 .080(15) .

       Dr. Smock's testimony certainly provided sufficient evidence upon which to base

a first-degree assault conviction . However, when reviewing a trial court's

determinations with respect to-jury instructions, our inquiry focuses not on the weight of

the evidence but, rather, on the existence of sufficient evidence . Because the evidence

at trial supported varying conclusions as to the gravity of Shelly's injuries, I believe

Appellant was entitled to an instruction on second-degree assault .

       McAnulty and Minton, JJ., join this dissenting opinion .
